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that the whole must stand or fall together, and in this case there can be no ques-
tion that congress would have applied these provisions to corporation carriers,
whether individuals were included or not. In this view the act is valid as to

Act of Agent in Making Rates. — The act of the agent of a corporation
engaged in interstate commerce while exercising the authority delegated to him
to make rates for transportation, may be controlled, in the interest of public pol-
icy, by imputing his act to his employer and imposing penalties upon the corpo-
ration for which he is acting in the premises.^^

§§ 4227-4237. Criminal Proceedings against Carrier— § 4227. Ju-
risdiction and Venue. — The otTense of obtaining transportation of property in
interstate or foreign commerce at less than the carrier's published rates, created
by the Elkins Act of February 19, 1903, is made triable in any federal district
through which such transportation is had, by the provision of that act that vio-
lations shall be prosecuted in any court of the United States having jurisdiction
of crimes within the district in which such violation was committed, or through
which the transportation may have been conducted. ^'^ The requirement that the
prosecution of crimes against the United States be had in the state or district
where the offense was committed, which is made by U. S. Const., Sixth Amend-
ment, is not violated by the provision of the Elkins Act of February 19, 1903,
under which the offense of obtaining transportation of goods at less than the
carrier's published rates may be tried in any federal district through which such
transportation was conducted.-^'*

§ 4228. Initiation of Proceedings. — See elsewhere. ^"^

§ 4229. Parties. — Both the corporation and its agents may be joined in an
indictment for violating the provisions of the Act of Feb. 19, 1903, against re-
bates, under which the commission by corporate officers or agents, acting within
the scope of their employment, of criminal violations of the provisions of that
act, is imputed to the corporation, an'd the corporation subjected to criminal prose-
cution therefor. ^^

§§ 4230-4234. Indictment— § 4230. For Failure to File Rates.—

An indictment of a carrier for failure to lile its tariff of rates for petroleum, es-

ruary 19, I'JO.:! (32 Stat at L,. 847, chap. Packing Co. v. United States, 209 U. S.

708, U. S. Comp. Stat. Supp. 1907, p. 880), 56, 52 L. Ed. 681, 28 S. _Ct. 428.
under wliich the commission by corporate The giving- or receiving of a rebate

officers, acting within the scope of their whereby property in interstate or foreign

employment, of criminal violations of the commerce is transported at a less rate

prohibitions of that act against giving re- than that legally published, denounced by

bates, is imputed to the corporation, and Act Feb. 19, 1903, c. 708, .'^2 Stat. 847 [U.

the corporation is subjected to criminal S. Comp. St. Supp. 1905, p. 599], is a con-

prosecuticjn therefor. New York, etc., R. tinuous crime within the jurisdiction of

Co. V. United States, 212 U. S. 481, 5,"} L. any United States court having jurisdic-

Ed. 613, 29 S. Ct. 304. tion of crimes through whose district the

31. New York, etc., R. Co. v. United transportation is conducted. Armour
States, 212 U. S. 481, 53 L. Ed. 613, 29 I'acking Co. v. United States, 153 Fed.
S. Ct. 304, citing Berea College v. Com- 1, 82 C. C. A. 135, 14 L. R. A., N. S., 400.
monwealth, 211 U. S. 45, 53 L. Ed. 81, 34. Armour Packing Co. v. United
29 S. Ct. 33, and The Employers' Liabil- States, 209 U. S. 56, 52 L. lul. 681, 28 S.
ity Cases, 207 U. S. 463, 52 L. VA. 297, Ct. 42S.

28 S. Ct. 141. 35. Initiation of proceedings. — Sec ante,

32. Act of agent in making rates. — New "I'articnlar Powers," § 4154.

York, etc., R. Co. v. I'nitcd States, 212 36. Parties. — New York, etc., R. Co. v.

U. S. 4H1, 5:j L. VA. 6i;!, 29 S. Ct. 304. United States, 212 IT. S. 4S1, 5:! P. Ed.

33. Jurisdiction and venue. — .Armour (ii:'., 29 S. Ct. :iOI. animiing 146 l'\(l. 298.

§§ 4230-4232 • carriers. 3848

tablished under a common arrangement for interstate shipment, alleged the es-
tablishment of a rate for carrying petroleum between intrastate terminals under
a common arrangement for a continuous interstate shipment, and that each of
the shipments under such rate were under shipping orders, transfer slips, and
waybills, showing that the commodity was to be transported from the point pi
shipment to destination by a continuous route without unloading or transship-
ment. The indictment sufficiently charged a common arrangement between the
various carriers for a through interstate shipment under a joint tariff. ^'^

§ 4231. For Departure from Published Rate. — An indictment charging
a shipper with securing transportation of goods in interstate or foreign com-
merce at less than the carrier's published rates, in violation of the Act of Feb.
19, 1903, is sufficient where it charges each and all of the elements of the offense,
with allegations of time, place, kind of goods, and name of carrier, averring the
fixing of the published rate, the changing of the rate, and the new publication,
the shipper's knowledge of this change, and the carriage of the goods over a
described route at a concession of the difference between the two rates.^s An
indictment against a railroad company for a failure to observe its published tariffs
by extending credit to a shipper under joint rates for a part of the freight due is
not insufficient because it does not exclude the possibility that it received in cash
its own share of such freights.''^

§ 4232. For Discrimination and Preference. — The offense of the un-
just discrimination, under § 2 of the Interstate Commerce Act, is not confined to
discrimination by means of some device, as by a special rate, rebate, or drawback,
but is committed by directly giving different rates to diff'erent persons ; and an
indictment under that section need not aver by what particular device the discrimi-
nation was accomplished.^^ ^n indictment under § 2 of the Interstate Commerce
Act, which fully and amply alleges all the details of time, place, distance, amount,
and kind of freight transported for one shipper and then charges that the service
was for a less compensation than was received from another shipper for doing
for him a like and contemporaneous service in the transportation of a like_ kind
of traffic under substantially similar circumstances and conditions, sufficiently
describes the services rendered for the other shipper.-* ^ Under § 3 of the act,
making it unlawful for a carrier to make or give any undue or unreasonable pref-
erence or advantage to any particular person, company, firm, corporation, or lo-
cality in any respect whatever or to subject any particular person or company to
any undue or unreasonable prejudice or disadvantage, a count in an indictment
is sufficient if it shows with requisite certainty that the defendant has committed
an act giving one shipper or class of shippers an advantage, or subjecting others
to a disadvantage; and it need not allege that the discrimination was committed
under s'lbstantially similar circumstances and conditions, as required under § 4,
containing the long and short haul clause."*-

Estabiishment of Joint Rate. — An indictment against an interstate carrier
for discrimination alleging that, under a common arrangement between the con-
necting carriers, the commodity which was contained in tank cars was trans-
ported without stoppage or interruption and was accompanied by written ship-
ping orders, waybills, and transfer slips indicating a through transportation, the

37. Indictment.— United States v. New 39. United States v. Hocking Valley R.
York, etc., R. Co., 153 Fed. fiSO. Co., 194 Fed. 234.

38. For departure from published rate. 40. For discrimination and preference.
—Armour Packing Co. v. United States, —United States v. Tozer, 37 Fed. 635, 2
209 U. S. 56, 52 L. Ed. 681, 28 S. Ct. 428, U R. A. 444.

affirming judgment, 153 Fed. 1, 82 C. C. 41. United States v. De Coursey, 82

A. 135, 14 L. R. A., N. S., 400; Chicago, Fed. 302.

etc., R. Co. V. United States, 209 U. S. 42. United States v. Tozer, 37 Fed. 635,

90, 52 L. Ed. 698, 28 S. Ct. 439, affirming 2 U R. A. 444.

judgment, 157 Fed. 830.

3849 INTERSTATE COMMERCE ACT. §§ 4232-4233

rate and place of destination, sufficiently alleged prima facie a common arrange-
ment between the carriers for a through shipment.'*^ Where in a prosecution
against a carrier for discrimination, the indictment alleges that a common ar-
rangement existed between the defendant and three other connecting carriers
named for a continuous forwarding of property, in interstate commerce, between
two specified points, and that the defendant kept open for public inspection its
printed tariff of rates, and filed the same as required by law, with the allegation
that the shipment in question was accompanied by written shipping orders, way-
bills, and transfer slips showing a continuous shipment between such points, it
sufficiently charges the establishment of a joint tariff' of rates for the commodity
in question, without alleging that all the connecting carriers concurred in such
joint rate, or that it was filed with the interstate commerce commission by their
joint action. ■*'*

§ 4233. For Granting- Rebate or Concession. — In view of the provisions
§ 1025 of the Revised Statutes of the United States, which provides that no judg-
ment upon an indictment shall be aft'ected by reason of any defect or imperfec-
tion in matter of form which shall not tend to the prejudice of the defendant, and,
unless the substantial rights of the accused were prejudiced by the refusal to re-
quire a more specific statement of the manner in which the offense was committed,
there can be no reversal. An indictment under the Act of Feb. 19, 1903, which
specifically states the elements of the offense charged with sufficient particularity
to fully advise the defendant of the crime charged to enable a conviction, if had,
to be pleaded in bar of any subsequent prosecution of the same offense is suffi-
cient. It is only substantial defects that are available to reverse a judgment of
conviction.^"' An indictment which states that a carrier gave a rebate to one ship-
per without stating any instance in which the carrier refused a like rebate to any
other shipper is defective, as not showing discrimination.-*'^^ The indictment need
not use the word "concession" in describing the off'ense.'*"

Time Shipment Made. — Under that clause of the Interstate Commerce Act
which forbids carriers collecting greater or less compensation than is specified
in their published schedules, an indictment which charges that defendants were
officers of a railroad company which was a common carrier between designated
points in dift'erent states ; that a certain rate was in force between such points ;
that defendants, during a certain period of time, received such rate from a cer-
tain shipper; and that, at a certain time, they unlawfully and willfully paid such
shipper a certain rebate, is good, even though it does not state the day or days
where the shipments were made.^^

43. Establishment of joint rate. — United U. S. 408, 39 L. Ed. 1033, 15 S. Ct. 951.
States V. Pennsylvania R. Co., 153 Fed. 46. United States v. Hanley, 71 Fed.
625. 672.

44. United States v. Pennsylvania R. 47. Need not use word "concession." —
Co., 153 Fed. 625. _ Under Elkins Act Fel). 19, 1903, c. 708,

Where an interstate carrier was in- 32 Stat. €47 (U. S. Comp. St. Supp. 1907,
dieted for charging a lower rate than that p. 880), making the willful giving of con-
established by a filed joint tariff over a cessions by interstate carriers from the
specified route for transportation of pe- established and published tariff rates an
troleum between the same termini over offense, an indictment alleging tliat the
a different route, the indictment was not established and punished rate per car for
defective for failure to allege that the l)ulk lime between two points was $70
lower rate over the latter route was not per car of 40,000 pounds minimum, and
scheduled and filed as required by Inter- that defendant charged and received for
state Commerce Law, Act Feb. 4, 1887, a specified car the sum of $64.75 and no
c. 104, § 6, 24 Stat. 380 [U. S. Comp. St. more, sufiiciently charged that defendant
1901, p. 3158]. United States v. Pennsyl- granted a "concession" prohibited by tlie
vania M. Co., 153 Fcfl. 625. statute, though tlie count did not use the

45. For granting rebate or concession. word "concession" to describe the alleged
— New York, etc., R. Co. v. United States, rebate. United States v. Atchison, etc.,
212 U. S. 481, 53 L. Ed. 613, 29 S. Ct. R. Co., 163 Fed. 111.

304; S. C, 212 U. S. 500, 53 L. Ed. 624, 29 48. Time shipment made. — United

S. Ct. 309; Connors v. United States, 158 States v. Hanley, 71 Fed. 672.

§ 4233 CARRIERS. 3850

Matters of Defense. — In an indictment charging an interstate carrier with
the giving of rebates, where it is averred that defendant received the legal rate,
and granted and paid to the shipper a certain rebate or concession, whereby it
iransported the property shipped at less than the legal rate, it is not necessary to
allege a prior agreement for such rebate, nor need the indictment negative the
existence of conditions or circumstances which might render the payment legal;
that being a matter of defense.'*^

Device by Which Obtained. — The device by which a rebate is brought about
is not an essential element of the crime, and it is unnecessary to plead it in the

Reasonableness of Published Rate. — An indictment for giving or receiv-
ing rebates, need not allege that the carrier's published rate was a reasonable rate,
nor set out its tariffs in full, it being sufficient to aver that a certain named rate
was in force between designated points as shown by the published tariffs. ^'^

Establishment of Joint Through Rate. — An indictment charging an inter-
state carrier with giving a concession whereby a shipper secured through trans-
portation of property between two points at less than the lawful rate is not in-
sufficient because it does not aver the through rate, where it states the amount of
the concession and that it was given from the lawful rate over a certain part of
the route, which rate is also given. s- An indictment which charges that there was
an arrangement between several carriers having connecting lines for the continu-
ous transportation of property over such lines between certain points, and that
the lowest total rate as shown by the published tariffs of said several carriers was
a certain sum per hundred pounds on a particular product, but that such product
was transported for defendant at a lower rate, is bad, in that it does not negative
the existence of a joint through rate lower than the total of the local rate.^^

Knowledge and Intent. — An indictment against a carrier for receiving a re-
bate is sufficient, although it does not allege that the carrier, when the shipment
was made, intended to charge less than the schedule rate."'-* An indictment
against a railroad company and the agent of certain shippers, alleging that full
schedule rates were first paid by the railroad company for the transportation of
certain freight, and that thereafter a certain sum was paid to the shipper's agent
by way of rebates and concessions in respect to the transportation of freight un-
der a previously made unlawful agreement, sufficiently charged that the payment
of the rebate was a willful failure to observe the published tariff, and therefore
stated a violation of the interstate commerce act.^^

Shipments in Carload Lots. — Because an indictment for receiving a conces-
sion from the published rate on an interstate shipment of property alleges that
such shipment was made in car load lots, or in cars not owned by the carrier, it
does not follow as matter of law that such fact justified the departure from the
published rate so as to render the indictment demurrable. ^'^

49. Matters of defense. — United States amount of such payment. Judgment,
V. Chicago, etc., R. Co., 151 Fed. 81. United States v. Chicago, etc.. R. Co., 151

50. Device by which obtained. — Armour Fed. 84. affirmed in 163 Fed. 8.35.
Packing Co. v. United States, 153 Fed. 51. Reasonableness of published rate,
1, 82 C^ C. A. 135, 14 L. R. A., N. S.. 400. —United States v. Standard Oil Co., 148

An indictment against a railroad com- Fed. 719.

pany for granting rebates in violation of 52. Establishment of joint through rate.

Elkins Act Feb. ]9, 1903, c. 708, § 1, 33 —Chicago, etc., R. Co. v. United States,

Stat. 847 (U. S. Comp. St. Supp. 1907, 157 Fed. 830, judgment affirmed in 30&

p. 880), need not set out a particular de- U. S. 90, 53 L. Ed. 698, 38 S. Ct. 439.

scription of the device resorted to, but 53. United States v. Standard Oil Co.,

is sufficient where it avers the kind of 148 Fed. 719.

property shipped, the time and place 54. Knowledge and intent.— United

when and where shipped, the consignee. States v. Hanley, 71 Fed. 672.

the existing legal tariff for such shipment, 55. United States v. New York, etc., R.

the payment thereof by the shipper, the Co., 146 Fed. 298.

subsequent payment of the rebate by the 56. Shipments in car load lots.— United

carrier to the shipper, and the time and States v. Vacuum Oil Co., 153 Fed. 598.

3851 INTERSTATE COMMERCE ACT. §§ 4233-4237

Variance between Allegations and Proof. — In a prosecution for rebating

in the application of transit rates to certain local shipments of lumber, evidence
that one of the cars was sold to a railroad company and transported over its own
line for a part of the outgoing distance, and the charges for such portion of the
distance absorbed by it, did not constitute a fatal variance. ^^ Where a carrier
was charged with rebating in applying a transit tariff to local shipments, the fact
that the indictment charged the giving of a rebate on the outbound shipment
while the proof showed that it was given on the inbound shipment if at all, and
that the indictment averred violations of the local tariffs while the proof showed
violations of the transit tariffs, was not a fatal variance. ^^

Number of Offenses Charged. — In a prosecution of an interstate carrier for
rebating in applying transit rates to fourteen separate local shipments of lumber^
the court properly held that there were fourteen separate oft'enses, though there
were onh' ten separate refunds. •'>•*

Setting Out Method or Device. — An indictment against an interstate car-
rier for rebating need not set out the method or device resorted to to avoid the

§ 4234. Indictment against Express Company. — An indictment which
charges that an express company is a corporation and common carrier engaged
in the transportation of property by railroad from one state to other states, but
which does not show that such company is a mere adjunct or bureau of a rail-
road company or combination of railroad companies, does not bring such express
company within the purview of said act.^^

§ 4235. Burden of Proof. — In a prosecution of an interstate carrier for
charging a less rate for the transportation of petroleum between two specified
termini in different states than that scheduled in a filed joint tariff, in violation
of the Interstate Commerce Act the burden is on the government to show a com-
mon arrangement for a continuous carriage between the points mentioned in the
filed joint tariff. '^-

§ 4236. Evidence. — Where a carrier was charged with rebating in apply-
ing transit rates to certain so-called outbound local shipments, evidence of the
carrier's acts concerning inbound shipments, disclosing a scheme calculated to
conceal and carry out the oft'ense charged in the indictment, is admissible.*'^
Where an interstate carrier was indicted for rebating in applying lower transit
rates to certain local shipments of lumber, evidence concerning all other transit
shipments made by the shippers during the months in which such shipments were
made is properly excluded."-*

§ 4237. Instructions. — Submitting to the jury on a prosecution against a
shipper for accepting rebates in violation of the Act of Feb. 19, 1903, the ques-
tion whether or not there was a device to avoid the operation of the act and to
obtain the transportation at less than the carrier's published rates, did not prej-
udice the accused, where, under that act, no device or contrivance, secret or
fraudulent in its nature, is requisite to the commission of the ofi'ense, any means
by which transportation by a concession from the established rate was had being
sufficient to work a conviction. ''^•'^

57. Variance between allegations and 61. Indictment against express corn-
proof. — Nicliols, etc., Luml)cr Co. v. pany. — -United States v. Morsman, 42 Fed.
United States. 212 Fed. 58S. 448.

58. Grand Rapids, etc., R. Co. v. United 62. Burden of proof. — United States v.
States. 212 I-'ed. .577. Pennsylvania R. Co., 153 Fed. 625.

59. Number of offenses charged.— 63. Evidence. — Grand Rapids, etc., R.
Grand Rapids, etc., R. Co. z: United Co. v. United States, 212 Fed. 577.
States, 212 Fed. 577. 64. Grand Rapids, etc., R. Co. v. United

60. Setting out method or device. — States, 212 Fed. 577.

Grand Rapids, etc., R. Co. v. United 65. Instructions. — Armour Packing Co>

States, 212 Fed. 577. v. United States, 209 U. S. 56, 52 L. Ed.

^§ 4237-4239 carriers. 3852

Province of Court and Jury. — Instructing on trial of a carrier for giving re-
bates to take into consideration the absence of a certain witness and the nonpro-
(luction of books in which entries were made concerning the transactions in ques-
tion is not prejudicial error, where the jurors are left to attach such weight to
these circumstances as they see fit, and are further instructed that there is no
evidence that the defendant or those who controlled its corporate action destroyed
or failed to produce any paper for which the government asked. '^'^ In considering
the sufficiency of an indictment for receiving an unjust discrimination in rates
from a carrier on an interstate shipment of property any doubts as to the correct
construction of the statute should be resolved in favor of the evident intention
of Congress that equality among shippers should be maintained, and unjust dis-
crimination and favoritism of all kinds condemned, leaving the question whether
the existing conditions justified the difference in rates charged to be determined
as one of fact on the trial.^"

§ 4238. Criminal Liability of Officers and Agents. — Where a carrier is
a corporation, not only the carrier itself, but the officers individually, are subject
to indictment for violation of the Interstate Commerce Act.*^^ Where an unlaw-
ful arrangement was made by the assistant general freight agent, the fact that the
local freight agent, and the agent who made out the bills of lading, knew that
there was something unusual and out of the ordinary course of business in such
shipments, is not sufficient notice to them that the company was violating said
act to make them criminally liable therefor. <5^'

A receiver, not being bound to continue contracts made before his appoint-
ment, is not criminally liable, under § 6 of the Interstate Commerce Act, for the
violation of a joint tariff previously established by the railroad company of which
he is receiver and another company, and which he has not ratified, adopted, or
recognized in any way.''^*^

Violation of Long and Short Haul Clause. — An agent of a railroad, who
merely collects freights, and has nothing to do with fixing them, is not indictable
for a violation of the long and short haul clause of the Interstate Commerce

Indictment. — Under § 10 of the Act of Feb. 4, 1887, making any agent of a
railroad company subject to the provisions of the act amenable to its penalties,
who willfully does any of the prohibited acts, an allegation that defendant, at
the time the oflrense was committed, was agent of a certain railway company, and
had general charge of its freight office at Hannibal, sufficiently shows that the
offense was committed under color of his office or agency ; and it is not necessary
to allege or prove that the particular act complained of was done under the di-
rection or authority of the principal.'''^

§§ 4239-4244. Criminal Liability of Shipper— § 4239. Inducing

Online LibraryThomas Johnson MichieA treatise on the law of carriers (Volume 4) → online text (page 140 of 214)