Armour Packing Co. v. United States

• Decision Date: 29 April 1907
• Docket Number: 2,474.,2,473,2,471,2,472
• Citation: 153 F. 1
• Court: U.S. Court of Appeals — Eighth Circuit
• Parties: ARMOUR PACKING CO. v. UNITED STATES. SWIFT & CO. v. SAME MORRIS & CO. v. SAME. CUDAHY PACKING CO. v. SAME.

153 F. 1

ARMOUR PACKING CO. v. UNITED STATES. SWIFT & CO. v. SAME

MORRIS & CO. v. SAME. CUDAHY PACKING CO. v. SAME.

Nos. 2,471, 2,472, 2,473, 2,474.

United States Court of Appeals, Eighth Circuit.

April 29, 1907

(Syllabus by the Court.)

The giving or receiving of a rebate or concession, whereby property in interstate or foreign commerce is transported at a less rate than that legally filed and published, denounced by the Elkins act (Act Feb. 19, 1903, c. 708, 32 Stat. 847 (U.S. Comp. St. Supp. 1905, p. 599)), is a continuous crime judicable in any court of the United States having jurisdiction of crimes through whose district the transportation is conducted.

Where such an act or series of acts runs through several jurisdictions, the offense is committed and cognizable in each.

Though complete in the jurisdiction where first committed, it may continue, be committed, and punished in another jurisdiction.

A continuing crime is a continuous unlawful act or series of acts set on foot by a single impulse and operated by an unintermittent force, however long it may occupy.

A rebate or a concession from a part of a single rate, whereby property is transported thereunder at a less rate than the established rate, is a concession from the entire rate, and renders all transportation thereunder illegal.

The rates of transportation from places in the United States to ports of transshipment, and from ports of entry to places in the United States, of property in foreign commerce carried under through bills of lading, are required to be filed and published by the amended interstate commerce act of 1887 (Act Feb. 4, 1887, c. 104, 24 Stat. 379 (U.S. Comp. St. 1901, p 3154)).

If carried under an aggregate through rate which is the sum of the ocean rate and the rate from or to a place in the United States to or from the port of transhipment or of entry, the latter rate is required to be filed and published.

If carried under a joint through rate by virtue of a common control, management, or arrangement of the inland and ocean carriers, the joint rate is required to be filed and published.

The amended interstate commerce act of 1887, thus construed neither lays a tax or duty on articles exported from any state, nor gives a preference to the ports of one state over those of another, within the meaning of paragraph 5 of section 9 of article 1 of the Constitution, and it is not obnoxious thereto.

The giving or receiving of the rebate or concession, whereby property in interstate or foreign commerce is transported at less than the established rate, is the essence of the offense denounced by the pertinent paragraph of the Elkins act.

The 'device' by which the concession or transportation is brought about is not an essential element of the crime, and it is unnecessary to plead it in an indictment.

The meaning of the clause 'by any device whatever' in that paragraph is directly or indirectly, in any way whatever.

An indictment must set forth facts which the pleader claims constitute the transgression, and every essential element of it, with such clearness and certainty as (1) to advise the accused of the charge he has to meet, and to give him a fair opportunity to prepare his defense, (2) to enable him to avail himself of the judgment thereon in defense of another prosecution for the same offense, and (3) to qualify the court to determine whether or not the facts there stated are sufficient to support a conviction.

The laws upon the subject of a contract are read into and become a part thereof to the same extent as though they were written into its terms.

A contract between a carrier and a shipper to transport the latter's goods in interstate or foreign commerce at the then established rate for a definite time is ineffective after a higher rate has been filed and published as required by law.

The time during which a rate different from the agreed rate is established by filing and publishing is excepted from the term of such a contract by virtue of the national acts to regulate commerce which are a part thereof.

Such a contract constitutes no defense to a charge of giving or receiving a rebate or concession from the filed and published rate.

The only criminal intent requisite to a conviction of an offense created by statute, which is not malum in se, is the purpose to do the act in violation of the statute. No moral turpitude or wicked intent is essential to a conviction of such a crime.

In the statement and opinion in these cases the Armour Packing Company's case alone will be treated, because the four cases were tried upon agreed statements, and their facts are so similar that the questions of law they present are identical.

The packing company was indicted and tried for, and was convicted of, a violation of the Elkins act to further regulate commerce of February 19, 1903 (chapter 708, 32 Stat. 847 (U.S. Comp. St. Supp. 1905, p. 599)) in the District Court for the Western District of Missouri upon these agreed facts: The Chicago, Burlington & Quincy Railroad Company, a corporation, was a common carrier engaged in the transportation of property through the states of the nation and for export to foreign countries by rail over its own road and over other railroads under contracts and arrangements with connecting carriers from Kansas City, in the state of Kansas, into and through the Western district of Missouri, to the city of New York. The packing company was a corporation engaged at Kansas City, in the state of Kansas, in packing meat products and shipping them throughout the United States and to foreign countries. Its shipments to foreign countries were delivered to the Burlington company at Kansas City, were delivered by one of the Burlington company's connecting carriers to an ocean steamer at New York, and were handled exclusively by the carriers, rail and steamship, from the time they were delivered to the Burlington company at Kansas City until they were delivered to the shipper at the export destination. The shipment which is the subject of this prosecution was thus shipped, handled, and delivered.

From May 9, 1905, until August 6, 1905, tariffs and schedules and joint tariffs and schedules duly filed, published, and posted, showed that the proportion of the rate on provisions of the character described herein shipped as export shipments from Kansas City, Kan., to foreign countries, was 23 cents per 100 pounds from all points on the Mississippi river to New York.

On June 16, 1905, the proprietors of the Wilson line of ocean steamers agreed with the packing company to carry these provisions from New York to Christiania, Norway, for 19.93 cents per 100 pounds, and a copy of this contract was delivered to the Burlington company.

On June 17, 1905, the Burlington company agreed with the packing company to carry for it until December 31, 1905, products of this character shipped for export at the then filed and published rate, the proportional part of which from the Mississippi river to New York was 23 cents per 100 pounds.

On August 6, 1905, the Burlington company and its connecting railway carriers filed with the Interstate Commerce Commission an amendment to their tariffs and schedules, which was duly published and posted, and which made a tariff or rate from Kansas City, Kan., to New York, for these products, the proportional part of which for their carriage from the Mississippi river to New York was 35 cents per 100 pounds.

Prior to August 6, 1905, shipments were made by the packing company for export and were carried by the Burlington company and its connecting carriers according to the terms of the contract of June 17, 1905, and at the then filed and published rate. After the amendment of the schedules of August 6, 1905, and on August 17, 1905, the packing company delivered at Kansas City, Kan., to the Burlington company, under the contract of June 17, 1905, for transportation to Christiania, Norway, by way of the latter's railroad and via railroads of its connecting carriers to New York, and thence by the Wilson line of steamships to Christiania, under the contract of the packing company with the owners of that line, 67 tierces of oleo oil, which weighed 29,365 pounds, and the Burlington company received, agreed to deliver this oil to the order of the packing company at Christiania, Norway, and issued to it a through bill of lading therefor for 52.93 cents per 100 pounds, which included the 19.93 cents per 100 pounds agreed by the packing company to be paid to the Wilson line, and left 33 cents per 100 pounds for the transportation from Kansas City, Kan., to New York. The Burlington company and its connecting railway carriers thereupon transported this oil over their railroads from Kansas City, Kan., through the Western district of Missouri, to New York, where they delivered it to a steamship of the Wilson line. The packing company paid to the Burlington company the full 52.93 cents per 100 pounds for the entire carriage from Kansas City Kan., to Christiania, Norway. This 52.93 cents per 100 pounds was made up so that the proportionate part of this rate for the carriage from the Mississippi river to New York was 23 cents per 100 pounds. The packing company did not at any time know how the rate was apportioned or made up or divided among the respective railway carriers or points, but it knew that the agreed steamship rate was 19.93 cents per 100 pounds, and hence that 33 cents per 100 pounds was the aggregate amount paid and received for the transportation of the property from Kansas City to New York, and it knew the filed, published, and posted rate for this product established by the amendment of August 6, 1905, the proportional part of which from the Mississippi river to New York was in fact 35...