Elgin, J. & E. Ry. Co. v. United States

• Decision Date: 23 August 1918
• Docket Number: 2486.
• Citation: 253 F. 907
• Parties: ELGIN, J. & E. RY. CO. v. UNITED STATES.
• Court: U.S. Court of Appeals — Seventh Circuit

253 F. 907

ELGIN, J. & E. RY. CO. v. UNITED STATES.

No. 2486.

United States Court of Appeals, Seventh Circuit.

August 23, 1918

Rehearing Denied November 9, 1918. [Copyrighted Material Omitted]

Kempes K. Knapp, of Chicago, Ill., for plaintiff in error.

Charles F. Clyne, of Chicago, Ill., and Stanley Payne, for the United States.

Before BAKER, ALSCHULER, and EVANS, Circuit Judges.

ALSCHULER Circuit Judge.

Plaintiff in error railroad company, herein called Company, was indicted for violation of section 10 of the Interstate Commerce Act. ^[1] Act Feb. 4, 1887, c. 104, 24 Stat. 382 (Comp. St. 1916, Sec. 8574)

The indictment charges four shipments by the Carrier-Low Company on each shipment four counts being predicated, which severally allege that the Company (a) by false billing assisted, (b) by false classification assisted, (c) by false billing suffered and permitted, and (d) by false classification suffered and permitted, the shipper to obtain transportation at less than the regular rates.

The several counts charge that the Company knowingly received at its Joliet, Ill., station for interstate shipment, initially over its railroad, cars of paper, wood pulp and strawboard boxes, which were falsely classified or billed as 'strawboard,' on which latter the regular rate of transportation was less than on the boxes.

The sufficiency of the indictment was attacked by a motion in arrest of the judgment which was rendered upon the verdict of the jury, the grounds alleged being that the indictment (1) fails to set out the instrument or entry alleged to constitute the false billing or false classification; (2) fails to allege facts necessary to the existence of any lawful rate charged to have been departed from; (3) fails to charge that the rate alleged to have been departed from was applicable to the shipments in question; and (4) fails to allege facts sufficient to charge that the shipper was assisted by the Company to obtain the transportation at the lower rate.

The complaint under the first contention is mainly that the waybills for the shipments were not set out in the indictment. We do not regard the waybills themselves as the billing or the classification, but rather as evidence of it. The statutory offense charged consists in knowingly suffering and permitting, or assisting the shipper to procure transportation at less than the regular rate. While it is essential that the means (the false billing or classification) be charged, it is not necessary that the indictment set forth evidence of the means.

Armour Packing Co. v. United States, 209 U.S. 56, 28 Sup.Ct. 428, 52 L.Ed. 681. The allegations are that the defendant by 'false billing' and by 'false classification' assisted, or suffered and permitted, the shipper to obtain transportation at unlawful rates of the particular shipments set out in the indictment. While this sufficiently apprised the defendant of the nature of the charge it had to meet, yet if in the preparation of its defense it was necessary and proper that it be further advised respecting the waybills, a request for further particulars would in all probability have produced such further information thereon as the government possessed, and the defendant was entitled to have. Kirby v. United States, 174 U.S. 47, 19 Sup.Ct. 574, 43 L.Ed. 890; Durland v. United States, 161 U.S. 306, 16 Sup.Ct. 508, 40 L.Ed. 709; Rosen v. United States, 161 U.S. 29, 16 Sup.Ct. 434, 40 L.Ed. 606; Dunbar v. United States, 156 U.S. 185, 15 Sup.Ct. 325, 39 L.Ed. 390.

The second contention rests on failure to set forth the steps required by law to be followed to fix a lawful rate of transportation-- such as publication and posting. We consider the allegations sufficient in that regard in charging that the regular rate established and then in force was as stated in the indictment, without setting forth the steps which were essential for the fixing of such rate. United States v. Miller, 223 U.S. 599, 32 Sup.Ct. 323, 56 L.Ed. 568. Besides, the regular rate as charged then to have been in force must by necessary inference be the rate made by the railroad company itself, and presumably it would know not only its own rates, but the steps it had taken to fix them; and the Company is manifestly at no disadvantage and under no hardship if the allegation in the indictment of the existence of the regular rate is not amplified by setting forth the means or steps taken to adopt it. Standard Oil Co. v. United States, 164 F. 376, 90 C.C.A. 364 (7th C.C.A.).

The third objection proceeds upon the assumption that the indictment charges the rate departed from to be on 'paper, wood pulp and strawboard boxes, knocked down flat, in carload lots,' whereas the shipments charged did not specify that the boxes were 'knocked down' or that they were carload lots. We regard this discrepancy immaterial, in view of the allegation that the defendant falsely billed and transported the shipment over the described route 'at a total rate and charge of 7 1/2 cents for each 100 pounds thereof, instead of 9 cents per 100 pounds (the amounts and destinations differing as to the several shipments), the regular rate and charge then established and then in force on the said railway route and line of transportation, for the transportation of the said paper, wood pulp and strawboard boxes, between Joliet aforesaid and Indianapolis aforesaid.'

Nor are we impressed with the fourth ground urged, viz. that the indictment fails to set forth the manner or means whereby the shipper was assisted or suffered to obtain the transportation at less than the lawful rate. In the language of the statute the Company was charged with assisting or suffering and permitting the shipper to obtain the transportation at less than the lawful rate, by means of false billing or classification. The shipments were described, car numbers given, and the lawful rate and the rate charged were both stated. One cannot well read the counts without concluding that they charge the shipments to have been made by and through procurement of the shipper; and while further particulars might with propriety have been stated, we believe the language of the Supreme Court in New York Central R.R. Co. v. United States, 212 U.S. 481, 29 Sup.Ct. 304, 53 L.Ed. 613, is quite applicable here:

'An examination of the indictment shows that it specifically states the elements of the offense with sufficient particularity to fully advise the defendant of the crime charged and to enable a conviction, if had, to be pleaded in bar of any subsequent prosecution for the same offense.'

Hereunder it is further urged that the indictment fails to state that the freight was paid or to be paid by the shipper, and that hence the shipper did not obtain the transportation at the lower rate. If it were shown, as alleged, that through false billing or classification the Company knowingly and willfully suffered or assisted the shipper to obtain the shipments to be accepted and transported at the lower rate, it would not in our judgment affect the proposition if the shipper did not actually pay, or was not to pay, the freight charges. The goods being delivered for shipment by the shipper, and the contract for the shipment being made with and by it, the shipper obtains the transportation and is primarily liable for the freight charges, regardless of his contractual relations with his consignee governing the ultimate payment thereof. The interest of the shipper to secure for its patrons transportation at rates at least as low as those enjoyed by the patrons of any competitive shipper affords a strong inducement to the...