Great Northern Railway Company v. United States

• Decision Date: 24 February 1908
• Docket Number: No. 491,491
• Citation: 208 U.S. 452,52 L.Ed. 567,28 S.Ct. 313
• Parties: GREAT NORTHERN RAILWAY COMPANY, Petitioner, v. UNITED STATES
• Court: U.S. Supreme Court

208 U.S. 452

28 S.Ct. 313

52 L.Ed. 567

GREAT NORTHERN RAILWAY COMPANY, Petitioner,

v UNITED STATES.

No. 491.

Argued January 7, 1908.

Decided February 24, 1908.

Mr. William R. Begg for petitioner.

[Argument of Counsel from pages 452-457 intentionally omitted] Attorney General Bonaparte and Assistant to the Attorney General Purdy for respondent.

Messrs. John S. Miller and H. S. Priest as amici curiae.

[Argument of Counsel from pages 457-459 intentionally omitted] Mr. Justice White delivered the opinion of the court:

The act of Congress commonly referred to as the Hepburn law was enacted June 29, 1906. 34 Stat. at L. 584, chap. 3591, U. S. Comp. Stat. Supp. 1907, p. 892. In November, 1906, in the district court of the United States for Minnesota, the Great Northern Railway Company and several of its officials were indicted for violations of the act of 1903, commonly known as the Elkins act. 32 Stat. at L. 847, chap. 708, U. S. Comp. Stat. Supp. 1907, p. 880. There were fifteen counts, all relating to acts done in May, June, July, and August, 1905. Except as to varying dates of shipment and the sum of the concessions, the counts were alike. A reference to the first count will therefore make clear all the charges which the indictment embraced. After alleging the corporate existence of the railway company, the capacity of its named officials and agents, and the fixing and publishing of rates, there was set out the carriage of certain grain by the railway company from Minneapolis, Minnesota, to Seattle, Washington, for account of the W. P. Devereux Company, a corporation. It was then alleged that by the tariff and schedule of rates as established, published, and filed in conformity to the act to regulate commerce the legal charge was 50 cents for each 100 pounds of grain carried from Minneapolis to Seattle, 'but the grand jurors aforesaid, on their oath aforesaid, do present and charge that . . . within the jurisdiction of this court, . . . the said Great Northern Railway' (and the officers and agents named) 'did unlawfully grant and give to the said W. P. Devereux Company . . . a concession of twenty cents (20c.) of the said rate as aforesaid upon every 100 pounds of the property so transporated . . . as aforesaid, whereby the said property was, by said corporation common carrier, transported in said interstate commerce . . . at a less compensation and rate than that named therefor in said tariff and schedules so as aforesaid published and filed by the said common carrier and in force at the time upon its said route.'

The indictment was demurred to by all the accused upon the following grounds:

'1. That neither the said indictment nor any count in the said indictment stated sufficient facts or grounds to constitute against the said defendants, or either of them, an offense against the laws of the United States, nor any offense.

'2. That the statute of the United States creating the offense or offenses pretended to be charged in the said indictment, and under which said indictment was found, was duly repealed and was not in force at the time when the said indictment was found.'

The demurrer in this case was evidently heard along with demurrers in cases against others presumed to present like questions. The demurrer was overruled for reasons stated in an opinion, deemed controlling not only of this, but also of the other cases. 151 Fed. 84. By consent there was a severance between the railway company and the individual defendants. On the trial, after the jury had been sworn and when the taking of testimony was about to begin, the bill of exceptions states that the counsel for the company declared that he desired, on behalf of the defendant, 'in order to save our rights under the law questions involved, to make objection to the introduction of any evidence. And I desire to have it understood and agreed between the government and the defendant that I may now enter this objection with the same force and effect as if a witness had been already called and sworn to testify on behalf of the government.' On this being assented to by the government, objection was made to the introduction of any evidence based upon the two grounds which had been previously urged to support the demurrer. The following occurred:

The Court: I understand that last ground. Let us see the first ground.

Mr. Brown: The first ground is the general ground of the insufficiency of the indictment. The second is the same thing, only more specific.

I think the objection will be sufficient if confined to the first one.

The Court: The point that you wish to make is that there can be no prosecution here, no matter what the evidence is, because of the repeal of this Elkins act by the Hepburn act.

Mr. Brown: That is right.

The Court: The objection will be overruled.

Mr. Brown: I would ask an exception to the ruling of the court.

The Court: An exception is allowed.

Thereupon the counsel for the company stated that there was an agreement with the government that the company should make an admission as to the facts alleged in the indictment, subject to the right of the company to make 'such objections and motions and to take such action, either in this court or upon appeal, as shall bedeemed deemed necessary and proper to have determined the question of the sufficiency of the indictment to state an offense, and the sufficiency of the facts admitted to state an offense; and it is further agreed that neither such admissions, nor the fact that they had been made in this trial, shall be used as evidence or otherwise upon any other trial of this case, or upon the trial of any case.' To this the prosecution assented. The establishment and publication of the tariff rates, the shipments of grain as alleged in the indictment, etc., were then admitted by the accused, and it was further admitted as follows:

'That in case of the several shipments specified in the several counts of the indictment herein the concessions stated in the several counts respectively in the said indictment were given to W. P. Devereux Company by the direction and with the consent of the siad defendant, the Great Northern Railroad Company.'

Both parties then rested. The company requested an in- struction in its favor, based on the grounds upon which it had demurred, for which it had objected to any evidence, and upon the additional ground 'that the facts shown by the evidence are not sufficient to constitute against the defendant any offense against the laws of the United States, nor any offense.' Upon this request the following colloquy between the court and the counsel occurred:

The Court: You admit all the material facts alleged in the indictment?

Mr. Brown: We do.

The Court: And practically admit that they are proved?

Mr. Brown: We can't say that. We admit the facts that are stated here—the government has gone over—and I understand they are the facts of the indictment.

The Court: For the purposes of this case, we will say that you admit those facts.

The motion will be denied, and an exception allowed the defendant.

The court then instructed the jury, as follows:

'The defendant has admitted by its counsel, that all the material allegations of the several counts are true, and if you do not believe these allegations are proven you are obliged to find the defendant not guilty. I suppose it is proper for the court to say that it can hardly see how you can find any other verdict than that of guilty, but that is for you to say. If you do not believe these allegations are proven you can find the defendant not guilty.'

An exception was allowed the defendant to that part of the charge instructing that if the facts stated in the indictment were believed to be true, that the defendant should be found guilty. The following then occurred:

The Court: That is equivalent to saying that the indictment itself is insufficient.

Mr. Brown: Might I have that exception?

The Court: You may.

Mr. Brown: May I have it appear on the record that the grounds of my exception are the same three grounds named as the basis of my motion to instruct a verdict, to wit:

That neither the indictment on which this prosecution is based, nor any count in the said indictment, states sufficient facts or grounds to constitute against the defendant an offense against the laws of the United States, nor any offense.

2. That the statute or statutes, of the United States, creating the offense or offenses pretended to be charged in the indictment, and in each count thereof, and upon which statutes the said indictment and each count thereof is based, had been duly repealed and were not in force, as to any of the offenses in the said indictment pretended to be charged, at the time when the said indictment was found.

3. On the ground that the facts shown by the evidence are not sufficient to constitute against the defendant an offense against the laws of the United States, nor any offense.

The Court: You may.

There was a verdict of guilty, and the grounds upon which the exceptions previously taken had been rested were made the basis for a motion in arrest, which was overruled and excepted to. From the verdict and sentence thereon the case was taken to the circuit court of appeals for the eighth circuit, where the judgment was affirmed (155 Fed. 945), and the case is here because of the allowance of a writ of certiorari.

There is a contention in the brief of counsel for the petitioner, that the demurrer to the indictment should have been sustained and that the motion to arrest as well as the exceptions to the charge should have prevailed, because the indictment in all its counts was insufficient to state an offense under the Elkins act, even if that act had not been repealed or modified by the Hepburn law.

We postpone presently determining whether this contention is open on the record, or, if open, is meritorious, in order to come at once to the important question for decision, which is:

1. Did the Hepburn...