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. (District Court, D. Minnesota, Fourth Division. January 26, 1907.) Nos. 3,616-3,625. 1. CARRIERS-INTERSTATE COMMERCE-INDICTMENT FOR GIVING REBATES. In an indictment based on section 1 of the Elkins act (Act Feb. 19, 1903, c. 708, 32 Stat. 847 [U. S. Comp. St. Supp. 1905, p. 599]), charging an interstate carrier with the giving of rebates, where it is averred that defendant received the legal rate, and granted and paid to the shipper a certain rebate or concession, whereby it transported the property shipped at less than the legal rate, it is not necessary to allege a prior agreement for such rebate, nor need the indictment negative the existence of conditions or circumstances which might render the payment legal; that being a matter of defense. 2. STATUTES-EFFECT OF REPEAL OF PENAL STATUTE-Statutory RULE OF CONSTRUCTION. Rev. St. § 13 [U. S. Comp. St. 1901, p. 6], which provides that "the repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing act shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability," was not an attempt to limit the power of succeeding Congresses; but it merely prescribes a rule of construction, binding upon the courts, as a substitute for the common-law rule with respect to the effect of a repealing statute as a release from penalties and prosecutions for offenses committed under the statute repealed, and under it the repeal of a penal statute extinguishes no penalties previously incurred thereunder, in the absence of an express extinguishing clause in the repealing act. 3. CARRIERS-ACT REGULATING INTERSTATE CARRIERS-EFFECT OF REPEAL OF PRIOR STATUTES. Section 10 of the Hepburn act (Act June 29, 1906, c. 3591, 34 Stat. 595). relating to rates of interstate carriers, which provides that "all laws and parts of laws in conflict with the provisions of this act are hereby repealed, but the amendments herein provided for shall not affect causes now pending in courts of the United States, but such causes shall be prosecuted to a conclusion in the manner heretofore provided by law," when construed in accordance with the rule prescribed by Rev. St. § 13 [U. S. Comp. St. 1901, p. 6], does not relieve offenders under section 1 of the Elkins Act (Act Feb. 19, 1903, c. 708, 32 Stat. 847 [U. S. Comp. St. Supp. 1905, p. 599]), from subsequent indictment and prosecution for such offenses, but merely relates to the mode of procedure to be followed in pending causes. At Law. The above-entitled actions came on to be heard, at Minneapolis, in said district, on the 13th day of December, 1906, on the demurrers heretofore filed by the defendants to the indictments therein. 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 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, 1905, 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. 151 FEDERAL REPORTER. 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 act, omission, or failure of any officer, agent or other person acting for or employed by any common carrier acting within the scope of his employment shall in every case be also deemed to be the act, omission, or failure of such carrier as well as that of the person. Whenever any carrier files with the Interstate Commerce Commission or publishes a particular rate under the provisions of the act to regulate commerce or acts amendatory thereto, or participates in any rates so filed or published, that rate as against such carrier, its officers, or agents in any prosecution begun under this act shall be conclusively deemed to be the legal rate, and any departure from such rate, or any offer to depart therefrom, shall be deemed to be an offense under this section of this act." Section 2 of the Hepburn law amends the foregoing section of the Elkins law 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 to 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 thereof 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 thereof, or whereby any other advantage is given or discrimination is practiced. Every person or corporation, whether carrier or shipper, who shall, knowingly, 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: Provided, that any person, or any officer or director of any corporation subject to the provisions of this act, or the act to regulate commerce and the acts amendatory thereof, or any receiver, trustee, lessee, agent, or person acting for or employed by any such corporation, who shall be convicted as aforesaid, shall, in addition to the fine herein provided for, be liable to imprisonment in the penitentiary for a term of not exceeding two years, or both such fine and imprisonment, in the discretion of the court. Every violation of this section 151 FEDERAL REPORTER. 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 act, omission, or failure of any officer, agent, or other person acting for or employed by any common carrier, or shipper, acting within the scope of his employment, shall in every case be also deemed to be the act, omission, or failure of such carrier or shipper as well as that of the person. Whenever any carrier files with the Interstate Commerce Commission or publishes a particular rate under the provisions of the act to regulate commerce or acts amendatory thereof, or participates in any rates so filed or published, that rate as against such carrier, its officers or agents, in any prosecution begun under this act shall be conclusively deemed to be the legal rate, and any departure from such rate, or any offer to depart therefrom, shall be deemed to be an offense under this section of this act." It will thus be noticed that by the Hepburn law section 1 of the Elkins law was amended by inserting after the words "every person or corporation," in the clause declaring the parties guilty of a misdemeanor, the words "whether carrier or shipper," and also by inserting in said clause, after the words "who shall" the word "knowingly"; by striking out the clause providing that no penalty shall be imposed other than a fine, and inserting in lieu thereof the proviso, in substance, that any person, or any officer or director of any corporation subject to the provisions of the act, or any receiver, trustee, lessee, agent, or person acting for or employed by any such corporation, shall; in addition to the fine, be liable to imprisonment in the penitentiary for a term not exceeding two years, or both such fine and imprisonment, in the discretion of the court; and by inserting after the word "carrier," in the two instances in which said word appears in the second paragraph, the words "or shipper." Section 10 of the Hepburn law, which I shall hereafter for the sake of brevity refer to as "section 10," reads as follows: "Sec. 10. That all laws and parts of laws in conflict with the provisions of this act are hereby repealed, but the amendments herein provided for shall not affect causes now pending in courts of the United States, but such causes shall be prosecuted to a conclusion in the manner heretofore provided by law." 34 Stat. 595. Section 4 of an act entitled "An act prescribing the form of the enacting and resolving clauses of acts and resolutions of Congress and rules for the construction thereof," approved February 25, 1871 (chapter 71, 16 Stat. 432; Rev. St. U. S. [2d Ed.] 1878, p. 2, c. 2, § 13; U. S. Comp. St. 1901, p. 6, § 13), which I shall hereafter refer to as "section 13," reads as follows: "Sec. 13. The repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing act shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability." The defendants here were indicted, after the passage and going into effect of the Hepburn law, for violations of the first section of the |