United States v. Hocking Valley R. Co.

• Decision Date: 09 December 1911
• Docket Number: 1,357.
• Parties: UNITED STATES v. HOCKING VALLEY RY. CO.
• Court: U.S. District Court — Northern District of Ohio

194 F. 234

UNITED STATES v. HOCKING VALLEY RY. CO.

No. 1,357.

United States District Court, N.D. Ohio, Western Division.

December 9, 1911

U. G Denman, U.S. Atty., J. G. Fogg, Asst. U.S. Atty., and John H Marble, Sp. Asst. U.S. Atty.

James Byrne and James H. Hoyt, for defendant.

KILLITS District Judge.

An indictment has been found by the grand jury of this court in 28 counts against the Hocking Valley Railway Company, a corporation organized and existing under and by virtue of the laws of Ohio, being a common carrier operating a line of railroad wholly within such state.

The several counts divide themselves into three classifications within which the language of each count is identical, save such changes as are necessary to involve transactions different in facts but of natures entirely similar. An abstract of one count in each of the three classifications will serve to illustrate the entire indictment. The indictment is attempted to be found under the act of 1887 to regulate commerce, and the so-called 'Elkins Act' of 1903 (Act Feb. 19, 1903, c. 708, 32 Stat. 847 (U.S. Comp. St Supp. 1909, p. 1138)), as both were amended in 1906 (34 Statutes at Large, 584, Compiled Statutes, Supplement of 1909, pages 1155, 1156). Counts 1 to 10, inclusive, deal with monthly settlements for coal shipped as prepaid freight in December, 1908, and several months in 1909, each count relating to an individual month. Counts 11 to 20, inclusive, deal with the same monthly settlements and relate to the same transactions as those covered by the previous charges. Each of the remaining counts, 21 to 28, takes up a single car load shipment of coal, being one involved in some one of the several monthly settlements dealt with by the previous counts, and in each of these last counts reliance is had upon those terms of the law last quoted.

A brief statement of one count in each of these three classifications will be sufficient for the purposes of this opinion.

Omitting the formal averments relating to the road's location, its engagement in interstate commerce through the connections therein named, and other matters which bring the defendant company under the provisions of the act in question, and that it had complied with the law's requirements touching the publishing of its rates, count 1 avers the existence of a corporation known as the Sunday Creek Company, operating coal mines adjacent to the defendant's road at Nelsonville, Ohio, and shipping coal therefrom, and avers, in language sufficient for the several purposes, these additional facts:

That during the month of December, 1908, the defendant received from the said Sunday Creek Company coal in car load lots, and shipped the same in interstate commerce in 32 cars bound into states other than Ohio.

That each of the said cars was so received for shipment and shipped as prepaid freight, the total freight charges therefor within and without the state of Ohio to be charged against and paid by the shipper, the Sunday Creek Company.

That the total freight charges, computed by published rates for such shipments, for the shipment of said 32 car loads of coal, were $1,823.63.

That during the same month were received from the said Sunday Creek Company for shipment and shipped to points within the state of Ohio in car load lots, as prepaid freight shipments, the freight charges therefor to be charged against and to be paid by the Sunday Creek Company as prepaid freight, in the aggregate amount for freight at the published tariff rate of $24,667.42.

That the total amount of freight charges for prepaid freight to be charged to and paid by the Sunday Creek Company to the defendant upon shipments of coal by defendant during the month of December, 1908, as aforesaid, was $26,491.05.

That a custom made inevitable because of the nature of the business and the work of accounting provided for a monthly credit for freight charges to the shippers of coal over defendant's road, including the Sunday Creek Company, for coal received to be shipped and shipped by defendant as prepaid freight, such credit to terminate with monthly settlements.

That when the regular monthly accounting for the freight for the aforesaid interstate and intrastate shipments for December, 1908, was had, on January 27, 1909, the defendant railroad made a settlement with the Sunday Creek Company therefor on these terms: In money, $1,491.05; for the balance of the $26,491.05, namely, $25,000, a promissory note executed by the said Sunday Creek Company, at four months, at 5 per cent.

That at and previous to such settlement on the terms aforesaid no demand was made by the defendant company upon the Sunday Creek Company for the payment of said prepaid freight charges wholly in money, nor was any effort made at any time to collect said charges.

That said note, interest being paid, was renewed from time to time by the defendant company until April 1, 1910, on which date it was merged, with other debts due to the defendant, into 5 per cent. debenture bonds of said Sunday Creek Company, payable April 1, 1913, which bonds are wholly unpaid.

That this settlement for 1,491.05 in cash and $25,000 in credit was the fruit of an understanding and arrangement between the defendant and the Sunday Creek Company had and existing before and at the time of each of the shipments of coal whose prepaid freight charges went to make up said amounts and up to the time of making said settlement and the taking of said note.

That 'by the acceptance and taking of said note as part payment for such transportation the said the Hocking Valley Railway Company, common carrier as aforesaid, did demand, collect, and receive a less and different compensation for the transportation of such property, and for the service connected therewith between the said points of shipment, such points being named in the aforementioned tariffs, than the rates and charges which were specified in said tariffs so filed with the said Interstate Commerce Commission, and so in effect at the time of said shipments. That by the means aforesaid, to wit, the taking of said note in part payment for such transportation, the said the Hocking Valley Railway Company did remit by said device a portion of the rates and charges so in said tariffs specified, and did extend to said Sunday Creek Company a privilege, in the transportation of its said property, not specified in such tariffs.'

The count concludes with the formal charge that the defendant through these facts unlawfully demanded, collected, and received a less and different compensation for the transportation of this property and for its service in connection therewith, and unlawfully remitted a portion of the rates and charges for the transportation of such property, and that through the device of receiving and accepting said note unlawfully remitted a portion of the rates and charges for the transportation of such property so in said tariff specified, and did unlawfully extend to the said Sunday Creek Company a privilege in regard to the transportation of the property above named not specified in its tariffs, contrary to the form of the statute.

This count and 2 to 10 following are drawn to meet that portion of section 6 of the Act of 1887, as amended in 1906, which reads:

'Nor shall any carrier charge or demand or collect or receive a greater or less or different compensation for such transportation of passengers or property, or for any service in connection therewith, between the points named in such tariffs, than the rates, fares and charges which are specified in the tariffs filed and in effect at the time; nor shall any carrier refund or remit in any manner or by any device any portion of the rates, fares, and charges so specified, nor extend to any shipper or person any privileges or facilities in the transportation of passengers or property, except such as are specified in such tariffs.'

The act of 1906 also amends the original section 6, touching the details required in the published schedules, the law now reading:

'The schedules printed as aforesaid by any such common carrier shall plainly state the places between which property and passengers will be carried, and shall contain the classification of freight in force, and shall also state separately all terminal charges, storage charges, icing charges, and all other charges which the commission may require, all privileges or facilities granted or allowed and any rules or regulations which in any wise change, affect, or determine any part of the aggregate of such aforesaid rates, fares and charges, or the value of the service rendered to the passenger, shipper, or consignee.'

It is very plain from the context that the word 'tariffs,' as used at the close of the first quotation above from the law, is used in the sense of schedules, rates, and charges, and that the two provisions we quote are to be read together.

Count 11, which may be referred to as illustrative of the second classification of counts, relates to the same transaction as that set out in count 1, and follows in the main the allegations of that count, with the additional averments That when the indebtedness arising for such transportation charges for December, 1908, arose, certain other companies and persons were engaged in the business of mining, selling, and shipping of coal in the vicinity of Nelsonville, Ohio, and shipping therefrom during said month upon the defendant's railroad and its various connecting lines in interstate and intrastate commerce and under conditions similar to and substantially like those under which shipments were made, as stated, by the Sunday Creek Company, naming some of said other persons, firms, and corporations so shipping coal. That from each said shippers so...