162 F. 835 (8th Cir. 1908), 2,701, Chicago, St. P., M. & O. Ry. Co. v. United States

Docket Nº:2,701.
Citation:162 F. 835
Party Name:CHICAGO, ST. P., M. & O. RY. CO. et al. v. UNITED STATES. [1]
Case Date:May 25, 1908
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 835

162 F. 835 (8th Cir. 1908)

CHICAGO, ST. P., M. & O. RY. CO. et al.

v.

UNITED STATES. 1

No. 2,701.

United States Court of Appeals, Eighth Circuit.

May 25, 1908

Thomas Wilson, for plaintiffs in error.

Charles C. Houpt (Paul A. Ewert, on the brief), for the United States.

Before SANBORN and ADAMS, Circuit Judges, and PHILIPS, District Judge.

ADAMS, Circuit Judge.

The Chicago, St. Paul, Minneapolis & Omaha Railway Company, a common carrier of interstate commerce, and H. M. Pearce, its general freight agent, were found guilty in the court below of granting rebates to the Spencer Grain Company, a corporation doing business in Minneapolis, Minn., in violation of Act Feb. 19, 1903, c. 708, Sec. 1, 32 Stat. 847 (U.S. Comp. St. Supp. 1907, p. 880), known as the 'Elkins Act.' They were indicted in 50 separate counts for granting that number of rebates from the rate named

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in the tariffs and schedules of rates then published and filed by the carrier with the Interstate Commerce Commission for carrying oats from Minneapolis to Duluth, Minn., over a route which passed through some portion of the state of Wisconsin.

They were found guilty on all counts, and one fine of $20,000 and $2,000 was imposed upon the two named defendants, respectively, for punishment. This writ of error is prosecuted to secure a reversal of that judgment.

Only one out of 50 counts of the indictment appears in the record, and, as this is conceded to be fairly representative of them all, we here reproduce it. After alleging that the defendant railway company was a corporation and common carrier of interstate commerce between Minneapolis through the city of Superior, in the state of Wisconsin, to the city of Duluth, in the state of Minnesota, and that defendant Pearce was the general freight agent of the railway company, it proceeds as follows:

'That on the 26th day of December, 1905, the said Spencer Grain Company did deliver certain property, to wit, one (1) carload of oats * * * consigned to Cargill Commission Company, Duluth, Minn., to the said common carrier aforesaid, at the said city of Minneapolis, for transportation by the said common carrier, the Chicago, St. Paul, Minneapolis & Omaha Railway Company, by interstate commerce to the said city of Duluth before mentioned, and the said common carrier did immediately, upon and in pursuance of such delivery of said property, so transport the same by interstate commerce over its said route or line of railway hereinbefore mentioned, running from the said city of Minneapolis to the said city of Duluth, * * * upon which said property and for the transportation thereof, as aforesaid, the said Spencer Grain Company did thereupon pay to the said common carrier, and the said common carrier did receive from said Spencer Grain Company, the freight rates and charges for the transportation of said property set forth in the tariffs and schedules then showing the legal rates and charges established by said common carrier for such services, then in force and effect upon its said route, to wit, five cents (5c) for each one hundred pounds (100 . . .) thereof, copies of which tariffs and schedules * * * had theretofore been, by said common carrier aforesaid, published as required by law, and by it filed with the Interstate Commerce Commission of the United States, as required by law. * * * That the said (defendants) did on the 15th day of February, A.D. 1906, at the said city of Minneapolis * * * 'willfully and unlawfully grant and pay to the said Spencer Grain Company' * * * certain rebates of the said freight rates and charges so paid as aforesaid, and certain concessions in respect to the said transportation of said property, whereby the said property was by the said corporation and common carrier transported in said interstate commerce from the said city of Minneapolis to the said city of Duluth, by the route and in the manner aforesaid, at a less compensation and rate than that named therefor in the said tariffs and schedules; that is to say, a rebate, refund, and concession of one-half cent (1/2c) per bushel on each bushel of said oats * * * so as last aforesaid mentioned, delivered and transported. * * * '

Before entering upon a consideration of the assignment of errors, we will briefly state certain uncontradicted facts. Before 1903 the railway company had undertaken to transport grain from Minneapolis to Buffalo on through bills of lading issued by it. In such cases it had carried it from Minneapolis to Superior or Duluth over its own road, and there delivered it to vessels to be carried by them over the lakes to Buffalo, making its own contracts with the navigation companies and paying them for their service. Finding this arrangement unsatisfactory, shipments of grain for over the lakes were made by the

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railway company over its own line only, to specified consignees at Duluth or Superior, with a memorandum in the shipping bill that they were for over the lakes to Buffalo. It was found by the railroad company to be impossible to get any of this business for carriage over its line to the incipiency of the lake transportation without absorbing the charge for elevator service in removing the grain from the cars after their arrival at the end of its road to the vessels, because of the fact that other lines in natural competition with it for that business were so absorbing that charge. Accordingly the general freight agent gave directions for the solicitation of freight destined for Buffalo on the terms that the elevation charges at Duluth or Superior, as the case might be, would be assumed and paid by the railway company. Pursuant to such directions, and for the purpose of getting its share of the over the lakes business, the railway company accepted the grain specified in the indictment and all other grain offered to it at Minneapolis destined for Buffalo from Spencer Grain Company, or any other shipper at Minneapolis for carriage over its own line to the consignee thereof at Duluth or Superior, with an understanding and agreement that it would pay the elevation charge at the end of its route. Before the dates of the respective shipments mentioned in the several counts of the indictment, the railway company had published and filed with the Interstate Commerce Commission, as required by law, schedules showing the rates and charges for the transportation of grain like that mentioned in the indictment over its line from Minneapolis to Duluth or Superior to be five cents for each 100 pounds, and had never published or filed any schedule showing that it absorbed the elevation charges on over the lakes business. This schedule rate and charge remained unchanged until after the transactions involved in this indictment. The legal rate of five cents per 100 pounds was in each of the instances...

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