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Carrier to Discriminate. — The interstate commerce law makes it unlawful for
a carrier to issue bills of lading at rates dift'erent from those established and filed
with the commission, or to demand or receive freight charges variant from such
established rates. The act makes it penal for any person to knowingly obtain
transportation at less than the regular rates in force at the time. It is not in the

681, 28 S. Ct. 428, affirming judgment, 153 68. Criminal liability of officers and

Fed. 1, 82 C. C. A. 135. 14 L. R. A., N. agents.— In re Pooling Freights, 115 Fed.

S., 400; Chicago, etc., R. Co. v. United 588.

States, 209 U. S. 90, 52 L. Ed. 698. 2S 69. United States v. Michigan Cent. R.

S. Ct. 439, affirming judgment, 157 Fed. Co., 43 Fed. 26.

830. 70. United States v. De Coursey, 82

66. Province of court and jury. — New Fed. 302.

York, etc., R. Co. v. United States. 212 71. Violation of long and short haul

U. S. 481, 53 L. Ed. 613, 29 S. Ct. 304, clause.— United States v. Mellen, 53 Fed.

affirming 146 Fed. 298. 229.

67. United States v. Vacuum Oil Co., 72. Indictment. — United States v. To-
15.3 Fed. 598. zer, 37 Fed. 635, 2 L. R. A. 444.



3853 interstate; commerce act. § 4239

contemplation of the act that persons dealing with common carriers should be
held to know their published scheclules of rates. The consignee can recover the
value of goods held by the carrier for the collection of the joint schedule rate in-
stead of the contract rate, where it does not appear that he or the consignor knew
of such rate.*^^ A shipper is guilty of accepting transportation at less than the
carrier's published rates, in violation of the act, after the carrier has duly es-
tablished a higher rate, he secures such transportation at the rate agreed upon in
a prior contract with the carrier, which was the legal, published, and filed rate
when th.e contract was made, since the statute, being then in force, is read into
such contract, and becomes a part of it."^"* A shipper is not responsible for the
act of the carrier in fixing the rate at less than that required by the interstate
commerce commission, in the absence of knowledge that the rate fixed is illegal.'''^

Necessity for Posting Schedule of Rates. — Compliance with the require-
ments of the Act of June 29, 1906, that copies of schedules and tariffs for the use
of the public shall be "posted" in two public and conspicuous places in every de-
pot, so as to be readily accessible to the public, is not essential to bring a tarifif
within the provision of such act making it a misdemeanor for any shipper know-
ingly to solicit, accept, or receive a rebate or concession whereby property is
transported in interstate commerce at a less rate than that named in the tariffs
^'published and filed" by such carrier, as publication is a step in establishing rates,
while posting is a duty arising from the fact that they have been established.'^'^''

Necessity for Device or Contrivance. — A device or contrivance, secret or
fraudulent in its nature, is not essential to sustain the conviction of a shipper for
violating the Elkins Act of February 19, 1903, making, it a criminal offense for
any person or corporation to offer, grant, solicit, give, or to accept or receive, any
rebate, concession, or discrimination in respect to transportation of property in
interstate or foreign commerce, whereby any such property shall, by any device
whatever, be transported at less than the carrier's published rates, or whereby
any other advantage is given or discrimination practiced.''"^

Shipment to Foreign Country. — Shipments under a through bill of lading
from an interior point in the United States to a foreign port are embraced in the
provisions of the Act of Feb. 19, 1903, making it an offense against the United
States to obtain the transportation of property in interstate or foreign commerce
at less than the carrier's published rates.' '^

73. Inducing carrier to discriminate. — Co. (Tex. Civ. App.), 90 S. W. 189.
Defendant agreed to carry goods from 76. Necessity for posting schedule of
C, III., and deliver them to plaintiff at rates. — United States v. Miller, 22;'> U. S.
a point in Alabama on the line of the 599, 56 L. Ed. 568, 32 S. Ct. 323. See,
M. & B. R. R., with which road defend- also, Texas, etc., R. Co. v. Cisco Oil Mill,
ant had a joint tariff. The bill of lading 204 U. S. 449, 51 L. Ed. 562, 27 S. Ct.
called for $5.44 freight charges, but the 358; Kansas, etc., R. Co. v. Albers Comm.
M. & B. road refused to deliver the goods Co., 223 U. S. 573, 56 L. Ed. 556, 32 S.
except on payment of $29.30, the sched- Ct. 316.

ule rate. Held, that plaintiff could re- 77. Necessity for device or contrivance.

cover the value of the goods, since it did — Armour Packing Co. v. United States,

not appear that he or the consignor knew 209 U. S. 56, 52 L. Ed. 681, 28 S. Ct.

of the schedule rate. Mobile, etc., R. Co. 428, affirming judgment, 153 Fed. 1, 82

V. Dismukcs, 94 Ala. 131, 10 So. 289, 17 C. C. A. 135, 14 L. R. A., N. S., 400; Chi-

L. R. A. 113. cago, etc., R. Co. v. United States, 209 U.

74. Elkins Act February 19. 1903, c. S. 90, 52 L. Ed. 698, 28 S. Ct. 439, affirm-
708, 32 Stat. 847 (U. S. Comp. St. Supp. ing judgment, 157 Fed. 830.

1907, p. 880); Armour Packing Co. v. 78. Shipment to foreign country. — Ar-

United States, 209 U. S. 56, 52 L. Ed. mour Packing Co. v. United States, 28

681, 28 S. Ct. 428. affirming judgment. S. Ct. 428, 209 U. S. 56, 52 L. Ed. 681,

153 Fed. 1, 82 C. C. A. 135, 14 L. R. A., affirming judgment, 153 Fed. 1, 82 C. C.

N. S., 400; Chicago, etc., R. Co. v. United A. 135, 14 L. R. A., N. S., 400; Chicago,

States, 209 U. S. 90, 52 L. Ed. 698, 28 etc., R. Co. v. United States, 28 S. Ct.

S. Ct. 439, affirming judgment, 157 Fed. -139, 209 U. S. 90, 52 L. Ed. 698, affirming

830. judgment, 157 Fed. 830.

75. SontluTu Kansas R. Co. v. Bur'^css



§§ 4239-4240 carriers. 3854

Shipments under Prior Contract. — A shipper is guilty of accepting trans-
portation at less than the carrier's published rates, where, after the carrier has
duly established a higher rate, he secures such transportation at the rate agreed
upon in a prior contract with the carrier, which was the legal, published, and
filed rate when the contract was made, since the statute, being then in force, is
read into such contract, and becomes a part of it."^^

Liability for Acts of Servants. — The shippers of the lumber may be con-
victed of procuring an illegal rate, if their servants procured an unlawful discrim-
ination in rates, provided they knew of such unlawful acts, permitted them to con-
tinue, and received, directly or indirectly, the benefit of them ; for it was their
duty to see that the law was not violated by their subordinates by reason of their
own negligence.^"

Conspiracy to Induce Discrimination. — W here an indictment, charges a
conspiracy between lumber merchants and their servants and an employee of a
railroad company to procure less than the established rates by falsely weighing
the lumber shipped, such weighing being done by the railroad employee, the jury,
in order to convict, must find an agreement between two or more of defendants
for the purpose named, and also, as an overt act, the actual false weighing of
lumber by such employ ee.""^

§ 4240. Receiving Rebates. — The Act of Feb. 19, 1903, prohibits any per-
son or corporation from receiving any rebate, concession, or discrimination in re-
spect to the transportation of any property in interstate or foreign commerce,
etc., and declares that every person or corporation who shall accept or receive
any such rebates or concession shall be gtiilty of a misdemeanor, and on convic-
tion be fined. The gist of the offense was the receipt of a concession, irrespective
of whether the property involved was train loads, car loads, or pounds, and con-
sisted of the "transaction," which was not completed until the shipper received
a rate different from the established rate, without reference to the size of the
shipment. ^-

Necessity for Established Rate. — The defendant as shipper made an agree-
ment with a transit company, which was a carrier by water only on the Great
Lakes, by which the transit company agreed to protect a rate on a shipment of
iron pipe from Philadelphia to Winnipeg. The transit company routed the ship-
ment over a railroad to a port on Lake Erie, thence over its own water line to
West Superior, and from there over two railroads to W'innipeg. The shipment
was made on through bills of lading issued by the receiving railroad carrier, in
which a certain rate was charged, being the sum of its own published through rate
to West Superior and the published rates of the other two railroad companies
from there to Winnipeg, and such rate was paid by defendant. From the por-
tion of such rate received by the transit company it refunded a certain part to
the defendant. The transit company had not published nor filed any schedule of
rates under the interstate commerce law. The transit company's participation
in the transportation of the property under the through bills of lading and in the
rate charged therein was not under a common arrangement between the carriers

79. Shipment under prior contract. — Ar- United States v. Standard Oil Co., 155
mour Packing Co. v. United States. 28 Fed. 305, reversed in 164 Fed. 376.

S. Ct. 428. 209 U. S. 56. 52 L. Ed. 681, A suit by a railroad shipper for loss

affirming judgment, 153 Fed. 1, 82 C. C. of goods, on a policj' of insurance is-

A. 135, 14 L. R. A., N. S., 400; Chicago, sued to the carrier, after receipt of the

etc., R. Co. V. United States, 28 S. Ct. limited value fixed on such goods by the

439, 209 U. S. 90, 52 L. Ed. 698. affirm- carrier's schedules and bills of lading,

ing judgment, 157 Fed. 830. held in violation of section 6 of the In-

80. Liability for acts of servants. — terstate Commerce Act, as amended by
United States v. Howell. 56 Fed. 21. Act June 29, 1906, § 2, as soliciting a

81. Conspiracy to induce discrimina- rebate or concession, and not maintaina-
tion. — United States v. Howell, 56 ble. Duplan Silk Co. v. American, etc..
Fed. 21. Marine Ins. Co., 205 Fed. 724, 124 C. C.

82. Receiving rebates. — Judgment. A. 18.



3855 interstate; commerce act. § 4240

with respect to such shipment within the meaning of the act so as to make such
rate the lawful rate as against the shipper, nor to render the latter subject to
criminal prosecution for receiving a rebate.-^

Necessity for Posting Schedule. — In a prosecution of a shipper for rebating
in knowingly accepting a transit rate applied to certain shipments, which were
only entitled to higher local rates, it was no defense that the carrier did not keep
two printed copies of its rate sheet posted in two public and conspicuous places
in its depot, as required by the interstate commerce law\'^-*

Necessity for Device or Contrivance. — A device or contrivance, secret or
fraudulent in its nature, is not essential to sustain the conviction of a shipper for
violating the Act of Feb. 19, 1903, making it a criminal ofifense for any person or
corporation to offer, grant, solicit, give or to accept or receive any rebate, conces-
sion, or discrimination in respect to transportation of property in interstate or
foreign commerce, whereby any such property shall, by any device whatever, be
transported at less than the carrier's published rates, or whereby any other ad-
vantage is given or discrimination practiced. ^-^

Knowledge and Intent. — A shipper can not be convicted of accepting a con-
cession from the lawfully published rate without proof of knowledge of what
such rate in fact was : and hence evidence that the shipper had no knowledge of
the published rate, and could only have ascertained the same by construction of
several tariff' sheets, the application of which was questionable, was admissible.-^

Persons Liable. — The act provides that it shall be unlawful for any person,
persons, or corporations to solicit, accept, or receive any rebate, concession or dis-
crimination in respect of the transportation of any property in interstate or for-
eign commerce, whereby such property shall by any device whatever be trans-
ported at a less rate than that named in the tariffs published and filed by the car-
rier, and that it shall be lawful to include as parties, in addition to the carrier, all
persons interested in or aff'ected by the rate, regulation, or practice under con-
sideration. A refrigerator company organized for the purpose of controlling the
interstate transportation of a brewing company, having entered into a contract for
rebates with certain railroads, was a "party interested in the traffic," and was
therefore subject to the provisions of such act.^'^ The fact alone that a defendant
is a stockholder in a corporation which has accepted rebates in violation of law
does not render him subject to the penalty imposed by the statute therefor.^^
The fact that a shipper who contracts for and receives a rebate in violation of
the statute personally receives no benefit therefrom, but turns the same over with-
out consideration to another, does not relieve him from criminal liability."'^ A
consignee, no less than the consignor, is chargeable with a violation of § 1 of the
Act of Feb. 19, 1903, by receiving rebates or concessions from the published tar-
iffs of an interstate carrier through the cancellation of terminal charges at the
point of destination which form a part of the tariff's as so published.'*"

Excuses for Receiving Rebate. — On the trial of a shipper charged with
having obtained a concession from the lawful published rate on interstate ship-
ments in violation of the federal statute, the facts that another railroad may have

83. Necessity for established rate. — Ct. 439, 209 U. S. 90, .52 L. Ed. 698, af-
Judgment. United States z\ Camden Iron firming judgment, 157 Fed. 830.
Works. 150 Fed. 214, reversed in 158 Fed. 86. Knowledge and intent. — Judgment,
561. 85 C. C. A. 585. United States v. Standard Oil Co., 155

84. Necessity for posting schedule.— Fed. 305, reversed in 164 Fed. 376.
Xichols, etc.. Lumber Co. v. United 87. Persons liable.— United States v.
States, 212 Fed. 588. But see United Milwaukee, etc.. Trans. Co., 145 Fed.
States V. Standard Oil Co.. 170 Fed. 9^8. 1007.

85. Necessity for device or contrivance. 88. United States v. Wood, 145 Fed.
— Armour Packing Co. v. United States, 405.

28 S. Ct. 428, 209 U. S. 56, 52 L. Ed. 89. United States v. Wood, 145 Fed.

681, affirming judgment, 153 Fed. 1. 82 405.

C. C. A. 135, 14 L. R. A., N. S., 400; Chi- 90. United States v. Standard Oil Co.,

cago, etc., R. Co. v. United States, 28 S. 148 Fed. 719.



§§ 4240-4241 CARRIERS. 3856

had a published rate approximately as low as that received is immaterial. ^^

Number of Offenses Committed. — It has been held that where a shipper
has been continuously receiving concessions from the lawful rate from a railroad
company, the government is not limited to a prosecution for a single offense,"^*
nor will the obtaining of a concession to remain in force for a year render all
shipments made thereunder one offense nor the rendering of monthly freight bills
reduce the number of offenses to the number of such bills, but each shipment made
at the illegal rate constitutes a separate oft'ense, and where the published rate is
on car lots, and the reduced rate is granted on the same basis and a separate
charge made for each car, in the absence of evidence showing to the contrary,,
each car constitutes a separate shipment. ^^^ The circuit court of appeals, hov/ever,
reversed the case on the ground that the fine was excessive.^^ In a prosecution
against a shipper for receiving concessions from the published rates of a railroad
company in violation of the Act of Feb. 19, 1903, which involves continuous ship-
ments covering a number of years, there can be no greater number of offenses
than there were payments of freight, in which concessions were granted and re-
ceived, such receipt being the completion of the transaction which constitutes the
oft'ense. ^^ To warrant a conviction of a shipper for receiving rebates, the fact
of the payment of such rebate by or on behalf of the carrier, and its receipt by or
on behalf of defendant, must be proved, and each payment constitutes but one of-
fense, although it may cover more than one shipment. '^*^

§ 4241. False Billing of Goods. — Where a shipping order describing the
contents of a car was so worded as to intentionally conceal its true character, and
induce the carrier to apply a less rate than was legally applicable, the shippers
were guilty of a false representation, for which they were subject to prosecution
under Interstate Commerce Act.^^ A contention that a shipper, innocent at the
time, and ignorant of any classification or difference in rate, who shipped a race
horse and paid the freight charged by the agent without being informed of the
valuation made, is guilty of an offense under the statute, because he sues for in-
juries to the horse and seeks to recover the true value of the horse regardless of
the rating, is self-refutatory.^^

91. Excuses for receiving rebate. — - tence. Held, that the assessment of fine
United States v. Standard Oil Co., 155 of $29,240,000, which was the maximum
Fed. 305. punishment on each count, based on a

92. Number of offenses committed.— hnding that such amount was less than
United States v. Standard Oil Co., 155 one-third of the net revenues of the
Fed 305 Standard Oil Company of New Jersey

93. United States v. Standard Oil Co., during the period of violation, the effect
^ec p„ji oQr oi which would bc to bankrupt the de-

■ ■ fendant, was excessive, and an abuse of

94. Defendant, Standard Oil Company discretion. Judgment, United States v.
of Indiana, was found guilty on 1,463 Standard Oil Co., 155 Fed. 305, reversed
counts of an indictment for receiving jj-, ^54 Fed. 376.

concessions froin a railroad company on 95. United States v. Standard Oil Co.,

shipments of oil, in violation of Elkins j-vq pgj ggg

Act Feb. 19, 1903 c. 708, 32 Stat. 847, § Where defendant was indicted for re-
1 (U. S. Comp. St. Supp. 190'''. P- 880). ceiving a concession, rebate, and discrim-
Defendant's capital stock was $1,000,000, jnation on twenty shipments of lumber,
and there was no evidence that its assets ^ut it appeared that there were only six
were in excess of that sum, nor did it rebate settlements with the carrier, de-
appear that defendant had ever been fendant was guilty of but six offenses,
guilty of a similar offense. A majority of United States v. Stearns, etc., Lumber
defendant's capital stock was owned by Qq ^65 Fed. 735.

the Standard Oil Company of New Jer- oe tt -i j c* .- d i irc rr ^

, . , : / iu 96' United States v. Bunch, 165 Fed.

sey, which was no party to the prosecu- ^„„ '

tion, whose capital stock was $100,000-,000. '

This corporation was a holding company, 97. False billing of goods.— United

and its net earnings for the period dur- States v. Sterling Salt Co., 200 Fed. 593.

ing which the concessions were received 98. Kessenger v. Fitzgerald, 67 S. E-

the court investigated before passing sen- 588, 152 N. C. 247.



3857 interstate: commerce act. §§ 4242-4243

§ 4242. Indictment. — An indictment charging a shipper with securing
transportation of goods in interstate or foreign commerce at less than the car-
rier'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 dift'erence between the two rates.'^^ An indictment under the Act of Feb.
8, 1897, charging the defendant with having deposited with an express company,
for carriage to another state, "an article designed and intended for the prevention
of conception,'* which charges that such article was contained in a package de-
posited with an express company named, at a place and on a date named, ad-
dressed to a particular person at a designated place in another state, is sufficiently
specific, and need not more specifically describe the article.^

Alleging Publication of Rate. — An indictment charging a shipper with hav-
ing received a rebate or concession from the joint rate published and filed by a
carrier for the transportation of property between points in different states, is
not defective because it does not specifically charge that such rate was required
to be filed by the statute, where it alleges that it was published and filed as required
by law.-

AUeging Soliciting of Rebate. — An indictment charging a shipper with hav-
ing received a rebate or concession from the joint rate published and filed by a
carrier for the transportation of property between points in different states, is
not defective because it does not specifically charge that the defendant solicited
the concession.^

Alleging That Other Shipper Charged Published Rate.— An indictment
charging a shipper with having received a rebate or concession from the joint
rate published and filed by the carrier for the transportation of property between
points in dift'erent states, is not defective because it does not specifically name
any other shipper who has been charged and paid the higher rate as is required
where a discrimination is charged or that any shipment was actually made by the
published rate*

Alleging Common Control or Arrangement. — An information for receiving
rebates on an interstate or foreign shipment made partly by railroad and partly
by water, need not expressly aver that the connecting carriers are used under a
common control, management, or arrangement for a continuous service, so as to-
bring them within the terms of the interstate commerce law where it sets out
facts which show that such was the case in respect to the shipment in ques-
tion.^

§ 4243. Issues, Proof and Variance. -^In an indictment charging a shipper
with having received a concession whereby oil was transported for it in interstate
commerce at a less rate than that named in the tariffs published and filed by the
railroad company, an averment that such company established, published, and
filed a rate on oil between Chicago and St. Louis is not sustained by proof that
its schedules named only the rate over its own line from Chicago to East St.
Louis, and that the tariff on connecting lines between East St. Louis and St.
Louis w^as a certain amount.^

99. Indictment. — Armour Packing Co. 3. Alleging soliciting of rebate. —

V. United States, 28 S. Ct. 428, 209 U. S. United States v. Vacuum Oil Co., 153

56, 52 L. Ed. 681, affirming judgment, 153 Fed. 598.

Fed. 1, 82 C. C. A. 135, 14 L. R. A., N. 4. Alleging that other shipper charged

S., 400; Chicago, etc., R. Co. v. United published rate. — United States v. Vacuum

States, 28 S. Ct. 439, 209 U. S. 90, 52 L. Oil Co., 153 Fed. 598.

Ed. 698, affirming judgment, 157 Fed. 830. 5. Alleging common control or arrange-

1. United States v. Popper, 98 Fed. ment. — United States v. Camden Iron
423. Works, 150 Fed. 214.

2. Alleging publication of rate.— United 6. Issues, proof and variance.— United
States V. Vacuum Oil Co., 153 Fed. 598. States v. Standard Oil Co., 170 Fed. 988..



§§ 4243-4244 carrii^rs. 3858

Variance. — In a prosecution for receiving rebates on a shipment of property
alleged to have been made from Philadelphia, as the initial point, to Winnipeg,
it is immaterial that the shipment in fact originated in Camden, where the prop-
erty was lightered across the river to Philadelphia and there delivered to the
carriers named in the information."

§ 4244. Evidence. — Published Schedule of Rates. — The provision of the
Act of Feb. 19, 1903, that in a prosecution of a carrier thereunder for giving a
rebate any rate filed by it with the interstate commerce commission, or in which
it participates, "shall be conclusively deemed to be the legal rate" as against such
carrier, its officers, or agents, merely prescribes the effect to be given such rate
as evidence against the carrier, and does not affect its admissibility against a
shipper who is being tried for receiving a rebate, and in such case it may prop-
erly be received as evidence that the carrier giving, the alleged rebate was subject



Online LibraryThomas Johnson MichieA treatise on the law of carriers (Volume 4) → online text (page 141 of 214)