United States v. Chicago, St. P., M. & O. Ry. Co.

• Decision Date: 26 January 1907
• Docket Number: 3,616-3,625.
• Parties: UNITED STATES v. CHICAGO, ST. P., M. & O. RY. CO. et al. SAME v. GREAT NORTHERN RY. CO. et al. (four cases). SAME v. Wisconsin CENT. RY. CO. et al. SAME v. MINNEAPOLIS & ST. L.R. CO. et al. SAME v. AMES-BROOKS CO. SAME v. DULUTH-SUPERIOR MILLING CO. SAME v. McCAULL-DINSMORE CO.
• Court: U.S. District Court — District of Minnesota

151 F. 84

UNITED STATES v. CHICAGO, ST. P., M. & O. RY. CO. et al. SAME v. GREAT NORTHERN RY. CO. et al. (four cases). SAME v. Wisconsin CENT. RY. CO. et al. SAME v. MINNEAPOLIS & ST. L.R. CO. et al. SAME v. AMES-BROOKS CO. SAME v. DULUTH-SUPERIOR MILLING CO. SAME v. McCAULL-DINSMORE CO.

Nos. 3,616-3,625.

United States District Court, D. Minnesota, Fourth Division.

January 26, 1907

Charles C. Houpt, Paul A. Ewert, and J. M. Dickey, for the United states.

Thomas Wilson, for defendants Chicago, St. P., M. & O. Ry. Co. and others.

C. A Severance, for defendants Ames-Brooks Co. and others.

Wm. R Begg, for defendants Great Northern Ry. Co. and others.

George R. Seavers, for defendants Minneapolis & St. L. Ry. Co. and others.

Walter D. Corrigan, for defendants Wisconsin Cent. Ry. Co. and others.

MORRIS District Judge.

The first ground on which the demurrers in these cases are rested is that the indictments do not charge a violation of the statutes in force at the date of the doing of the illegal acts. The particular allegations to which attention is directed are as follows:

'That on the 26th day of December, 1905, the said Spencer Grain Company did deliver * * * one car load of oats * * * consigned to Cargill Commission Company, Duluth, Minnesota, to the said common carrier aforesaid (the defendant railway company), at said city of Minneapolis, for transportation by said common carrier * * * by interstate commerce to said city of Duluth, 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 the line of railway hereinbefore mentioned, running from the said city of Minneapolis to the said city of Duluth, * * * and 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 per each one hundred pounds, * * * and that the said Chicago, St. Paul, Minneapolis & Omaha Railway Company, the said H. M. Pearce, E. B. Ober, and F. C. Gifford, officers and agents of the said Chicago, St. Paul, Minneapolis & Omaha Railway Company as aforesaid, did on the 15th day of February, A.D. 1906, * * * willfully and unlawfully grant and pay to the said Spencer Grain Company, a corporation, as aforesaid, 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 said corporation common carrier transported in said interstate commerce from the said city of Minneapolis to the said city of Duluth * * * 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 per bushel on each bushel of said oats.'

The contention, if I understand it, is this: That, if the full amount of the legal schedule rate was in form paid and received as a cover or fraudulent device pursuant to a prearrangement or understanding that less than the legal tariff rate should be in fact paid and accepted for the services rendered, it should have been so charged in the indictment. The argument proceeds upon the assumption that the indictment was based upon sections 2, 3, and 6 (particularly section 6), of 'An act to regulate commerce,' approved February 4, 1887 (24 Stat. 379, 380, c. 104 (U.S. Comp. St. 1901, pp. 3155, 3156)), and the acts amendatory thereof prior to the passage of the act of June 29, 1906, commonly known as the 'Hepburn Act' (Act June 29, 1906, c. 3591, 34 Stat. 584). It is sufficient to say, in answer to this, that the indictment is not based upon said sections, but is based upon the first section of the 'Act to further regulate commerce with foreign nations and among the states,' approved February 19, 1903, commonly known as the 'Elkins Act' (which I shall hereafter fully set forth so far as may be necessary in the consideration of this case), and that under said section of the latter act no such allegation is necessary.

The argument further proceeds, as I understand it, upon the theory that if it were conceded that the defendant, without any prearrangement or understanding, express or implied, at some time after the service was performed and paid for, refunded to a shipper a sum equal to a given per cent. of the tariff before paid, that would not necessarily be a violation of any federal statute, because, if the defendant railway company, on account of certain conditions or circumstances, found it necessary, in order to compete with a rival company and to build up a through business over its line and the Great Lakes to the East, to pay the cost of transferring such grain, after it had been transported over its line, through an elevator to the vessels, or what would be on principle the same, having an elevator of its own, to pass the grain through it without charge, by first receiving the rates and charges set forth in the published tariffs and schedules, and afterwards refunding to the shipper the cost of such transfer, or if, in order to compete with a rival company, it offered and gave to the shipper of such grain storage free in its elevator while awaiting shipment, or for such grain it furnished side tracks and the use of its cars, without charging demurrage, while awaiting shipment, by first receiving the published rates and charges and afterwards refunding to the shipper the cost of such storage or demurrage, hoping thus to build up such a traffic over its line, that would not be illegal.

It is sufficient to say, in answer to this contention, that even if such conditions or circumstances, if they actually existed, might be shown in defense (which I extremely doubt, but which I do not think it necessary now to decide), it was not necessary under the Elkins act, in addition to the allegation that the defendant did on the 15th day of February, 1906, willfully and unlawfully grant and pay certain rebates and concessions in respect to the transportation of the grain, whereby the said grain was transported in interstate commerce from the city of Minneapolis to the city of Duluth at a less compensation and rate than that named therefor in the published tariffs and schedules, to make any allegation negativing the existence of such conditions or circumstances. It seems to me, therefore, that this ground of demurrer is not well taken.

The second ground on which the demurrers are based is that, since the passage of the act entitled 'An act to amend an act entitled 'An act to regulate commerce,' approved February 4, 1887, and all acts amendatory thereof, and to enlarge the powers of the Interstate Commerce Commission,' approved June 29, 1906 (Acts First Sess. 59th Cong. 1905-06, pt. 1, p. 584, c. 3591), commonly known as the 'Hepburn Law,' and which I shall hereafter for the sake of brevity refer to as the 'Hepburn Law,' there can be no prosecutions under the first section of the law commonly known as the 'Elkins Law' (Act Feb. 19, 1903, c. 708, 32 Stat.pt. 1, p. 847 (U.S. Comp. St. Supp. 1905, p. 599)), and which I shall hereafter, for the sake of brevity, refer to as the 'Elkins Law,' for violations of said law except in cases where the prosecutions were pending at the time of the passage of the Hepburn law; in other words, that only those offenders against the first section of the Elkins law against whom causes were pending at the time of the passage of the Hepburn law can now be prosecuted. Section 1 of the Elkins law, in so far as it is necessary to consider it here, provides as follows:

'* * * It shall be unlawful for any person, persons, or corporation to offer, grant, or give or to solicit, accept, or receive any rebate, concession, or discrimination in respect of the transportation of any property in interstate or foreign commerce by any common carrier subject to said act to regulate commerce and the acts amendatory thereto whereby any such property shall by any device whatever be transported at a less rate than that named in the tariffs published and filed by such carrier, as is required by said act to regulate commerce and the acts amendatory thereto, or whereby any other advantage is given or discrimination is practiced. Every person or corporation who shall offer, grant, or give or solicit, accept or receive any such rebates, concession, or discrimination shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by a fine of not less than one thousand dollars nor more than twenty thousand dollars. In all convictions occurring after the passage of this act for offenses under said acts to regulate commerce, whether committed before or after the passage of this act, or for offenses under this section, no penalty shall be imposed on the convicted party other than the fine prescribed by law, imprisonment wherever now prescribed as part of the penalty being hereby abolished. Every violation of this section shall be prosecuted in any court of the United States having jurisdiction of crimes within the district in which such violation was committed or through which the transportation may have been conducted; and whenever the offense is begun in one jurisdiction and completed in another it may be dealt with, inquired of, tried, determined, and punished in either jurisdiction in the same manner as if the offense had been actually and wholly committed therein.

'In construing and enforcing the provisions of this section the

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