Appeal - prejudicial error question to jury.

9. Submitting to the jury on a prosecution against a shipper for accepting rebates in violation of the Elkins act of Feb

submitting the so-called Elkins act (32 Stat. at L. 847, chap. 708, U. S. Comp. Stat. Supp. 1907, p. 880), in obtaining from the Chicago, Burlington, & Quincy Railway Company an unlawful concession of 12 cents per 100 pounds from the published and filed rate on that portion of the route between the Mississippi river and New York, for transportation upon a shipment made August 17, 1905, for carriage by rail of certain packing-house products from Kansas City, Kansas, to New York for export. Upon writs of error from the circuit court of appeals of the eighth circuit the sentences of convic

ruary 19, 1903, the question whether or not
there was a device to avoid the operation
of the act and to obtain the transportation
at less than the carrier's published rates,
did not prejudice the accused, where, under
that act, no device or contrivance, secret
or fraudulent in its nature, is requisite to
the commission of the offense, any means
by which transportation by a concession
from the established rate was had being

sufficient to work a conviction.*
Carriers-acceptance of rebate by
shipper-criminal intent.

10. Intentionally accepting transportation of goods in interstate or foreign commerce at less than the carrier's published rates, which is forbidden by the Elkins act of February 19, 1903, is sufficient to sustain a conviction under that act, although such action may have been taken in good faith, under a claim of legal right.

[Nos. 467, 468, 469, 470.]

Argued January 20, 21, 22, 1908. Decided
March 16, 1908.

N WRITS of

States Circuit Certiorari to the United Eighth Circuit to review judgments affirming convictions in the District Court for the Western District of Missouri for securing transportation of goods in interstate or foreign commerce at less than the carriers' published rates. Affirmed.

See same case below, 82 C. C. A. 135, 153

Fed. 1.

The facts are stated in the opinion. Messrs. Frank Hagerman, John C. Cowin, A. R. Urion, Henry Veeder, and M. W. Borders for petitioners.

Attorney General Bonaparte, Assistant to the Attorney General Purdy, and Mr. A. S. Van Valkenburgh for respondent.

* Mr. Justice Day delivered the opinion of

the court:

These cases are here upon writs of certiorari to the United States circuit court of appeals for the eighth circuit. By stipulation there was a single petition for certiorari, and the cases in the circuit court of appeals were considered together on the record in the Armour Packing Company Case, and, as it is conceded in the brief of the learned counsel for the petitioners that the differences in the cases are unsubstantial, the same course may be followed here. Each of the petitioners was convicted in the district court of the United States, western district of Missouri, for violation of

tion were affirmed.

Fed. 1.

82 C. C. A. 135, 153

The facts in the Armour Case are briefly these: From May 9 to August 6, 1905, the Chicago, Burlington, & Quincy Railway Company, with its connecting railroads east of the Mississippi river, under joint traffic arrangements, had filed, published, and posted in accordance with the acts of Con-y gress the rates of shipment of the character in question, and showing that the proportionate part thereof from points on the Mississippi river to New York was 23 cents per 100 pounds. Upon June 16, 1905, the packing company contracted with the Wilson Steamship line for upon boats

sailing in August for certain shipments,
and notified the Burlington Company there-
On
of, giving it a copy of the contract.
June 17, 1905, the Burlington Company con-
tracted with the packing company to carry
export shipments from Kansas City, Kan-
sas, of products named, until December 31,
1905, at a rate the proportionate part of
which from the Mississippi river to New
York City was 23 cents per 100 pounds, as
aforesaid. Upon August 6, 1905, the tariff
was amended and duly published and filed,
showing that the proportionate part from
the Mississippi river to New York City was
One of the connecting railroads then object-
35 cents instead of 23 cents per 100 pounds.
ed to the carrying of the freight at the
contract rate hereinbefore stated, and a

controversy arose between it and the Bur-
lington Company as to whether such con-
tract should apply, the Burlington Com-
pany claiming that it should, the connect-
ing carrier denying this contention. Upon
August 17, 1905, the packing company de-
livered at Kansas City, Kansas, to the
Burlington Company, 67 tierces of oleo oil,
property of the character covered by the
contract, for export to Christiania, Norway,
and upon receipt thereof at Kansas City,
Kansas, the Burlington Company issued and
delivered a bill of lading, agreeing to carry
the same to the point of destination for a
through rate, which included the carriage
by, and the rate of, the steamship line,

"Ed. Note.-For cases in point, see Cent. Dig. vol. 15, Criminal Law, $160.

89.

The

an ocean steamer in advance is an important thing, so that the packing company can be certain that its shipment can go on the boats sailing at specified times. packing company has houses in different parts of the United States, so that it cannot always, at the time of the contract for space, know from what particular point and over what road the shipments will go. Before August 6, 1905, shipments were made according to the terms of the contract aforesaid, which were carried under the terms thereof. The Armour Company contended and insisted that the amendment increasing the tariff rate did not and could not abrogate or impair the term of its contract.

which bill of lading was, according to the ordinary course of business, delivered to the Traders Despatch, one of the connecting carriers, which took the same up and issued a through bill of lading for the goods at the through rate. The bill was in triplicate, one copy thereof being delivered to and accepted by the steamship company. The packing company paid to the Burlington Company, as the initial carrier, the full through rate for the carriage over the line of the Burlington Company and its connecting carriers and that of the steamship line, and, from the time of the delivery of the freight to the railway company at Kansas City, Kansas, until it was delivered at the export destination, it was exclusively handled by the carriers, rail and steamship, These prosecutions were under the Elkins the shipper having nothing to do with it. act (32 Stat. at L. 847, chap. 708, U. S. The Burlington Company did, with connect- Comp. Stat. Supp. 1907, p. 880), and the ing lines, transport the property from Kan- first question argued concerns the consas City, Kansas, through the western dis-struction of that act, as to what constitrict of Missouri and other states and dis-tutes a crime on the part of the shippers tricts to New York City, where the same so far as obtaining a shipment by some was delivered to the steamship line. The manner of device is concerned, it being the full rate for the through carriage thus paid contention of the petitioners that, in order was made up so that the proportional part to work conviction, the shipper must be of the railroad carriage east of the Missis-guilty of some bad faith or fraudulent consippi river was 23 cents per 100 pounds, instead of 35 cents per 100 pounds, fixed by the amended and published rate. The packing company, at the time of making the shipment and paying the freight, knew of the filing and publishing of the amended tariff of August 5, 1905, but did not know how the rate was apportioned or divided, or made up among the respective carriers or points, except that it knew the steamship rate as named in the contract with the steamship owners.

duct in the use of the device, or obtain the rebate by some intentionally dishonest or underhanded method, concession, or discrimination denounced by the act. The history of the act in this feature may be of service in interpreting the meaning of Congress. The act of February 4, 1887, made no provision for criminal offenses against the shippers, but it was provided (§ 2, 24 Stat. at L. 379, chap. 104, U. S. Comp. Stat. 1901, p. 3155), that if the common carrier should, directly or indirectly, by any special rate, rebate, or other device, demand, collect, or receive, through any person or persons, a greater or less compensation for any service rendered or to be rendered in the trans

sions of the act, than it charges, demands, collects, or receives, etc., from any other person or persons for doing for him or them a like service in the transportation of a like kind of traffic under substantially the same circumstances, such common carrier shall be deemed guilty of unjust discrimination, which by the act was prohibited and made unlawful. And it was made unlawful for a common carrier to deviate from the published schedule of rates, fares, and charges. 24 Stat. at L. § 6, p. 381, chap. 104, U. S. Comp. Stat. 1901, p. 3156.

At the time aforesaid the Burlington Company was a common carrier, engaged in the transportation of property by railway under contract agreements and traffic arrangements with certain other lines, ex-portation of property subject to the provitending from Kansas City, Kansas, east to the city of New York and other seaboard points. There were no fixed contract agreements or traffic arrangements with the steamship lines, which were conducted as hereinafter set forth. The ocean rate is variable, depending upon the season, weather, and other matters. The steamship must sail at a given date and has a certain amount of space to be filled, so that space may be at one time quoted to one person at one price and at another time to another person at a different price. The question of such rates varies from hour to By the act of March 2, 1889 (25 Stat. at hour, as well as from day to day. For L. 857, § 2, chap. 382, U. S. Comp. Stat. 1901, these, among other reasons, there was no p. 3161), the shipper was brought within contract agreement or traffic arrangements certain criminal provisions of the law, and between the railroads and export steam- one who should knowingly and wilfully, ship lines. The reservation of *space upon by false billing, false classifying, false

weighing, false representation of the contents of the package, or false report of weight, or by any other device or means, with or without the consent or connivance of the carrier, obtain or dispose of property at less than the regular rate established and in force, should be deemed guilty of fraud.

It will be noticed that, in these statutes, the term "device" is associated with other words indicative of its meaning, and, in the act of March 2, 1889, the shipper, for falsely acting as to weighing, billing, classifying, or obtaining the transportation of property at less than the regular rate, or by any other device, was deemed guilty of fraud. In this act the term "device," as one of the means of consummating a fraud, shows the sense in which the term is used by Congress. It was only fraudulent conduct in obtaining transportation at less rates than others, which was denounced by the act, and the imposition aimed at was principally such as might be practised by the shippers upon the carriers in order to procure the preference.

When we come to the Elkins act we find the following provisions (32 Stat. at L. 847, chap. 708, U. S. Comp. Stat. Supp. 1907, p. 880):

prisonment abolished, and the shipper and carrier are placed upon the like footing, and it is made unlawful for any person or corporation to offer, grant, solicit, give, or to accept or receive, any rebate, concession, or discrimination in respect to transportation of property in interstate or foreign com. merce, whereby any such property shall, by any device whatever, be transported for a less rate than that published and filed by such carriers, or whereby any other advantage is given or discrimination prac tised. And we find the word "device" disassociated from any such words as “fraudulent conduct, scheme, or contrivance," but the act seeks to reach all means and methods by which the unlawful preference of rebate, concession, or discrimination is offered, granted, given, or received. Had it been the intention of Congress to limit the obtaining of such preferences to fraudulent schemes or devices, or to those operating only by dishonest, underhanded methods, it would have been easy to have so provided in words that would be unmistakable in their meaning. A device need not be necessarily fraudulent; the term includes anything which is a plan or contrivance. Webster defines it to be "that which is devised or formed by design; a contrivance; an invention; a project," etc.

This act is not only to be read in the light of the previous legislation, but the purpose which Congress evidently had in mind in the passage of the law is also to

Mr. Justice White, in New York, N. H. & H. R. Co. v. Interstate Commerce Commis. sion, 200 U. S. 361, 391, 50 L. ed. 515, 521, 26 Sup. Ct. Rep. 272, 277, are apposite here:

"It cannot be challenged that the great purpose of the act to regulate commerce, whilst seeking to prevent unjust and unrea

"The wilful failure upon the part of any carrier subject to said acts to file and publish the tariffs or rates and charges as required by said acts, or strictly to observe such tariffs until changed according to law, shall be a misdemeanor, and upon convic-be considered. tion thereof the corporation offending shall The views of this court, speaking through be subject to a fine not less than one thousand dollars nor more than twenty thousand dollars for each offense; and 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 com-sonable rates, was to secure equality of mon 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 pub-forbidding rebates, preferences, and all lished and filed by such carrier, as is re- other forms of undue discrimination. To quired by said act to regulate commerce this extent and for these purposes the statand the acts amendatory thereto, or where- ute was remedial, and is, therefore, entiby any other advantage is given or dis- tled to receive that interpretation which crimination is practised. Every person or reasonably accomplishes the great public corporation which shall offer, grant, or give, purpose which it was enacted to subserve. or solicit, accept, or receive any such reThe all-embracing prohibition bates, concession, or discrimination shall against either directly or indirectly charbe deemed guilty of a misdemeanor, and onging less than the published rates shows conviction thereof shall be punished by a that the purpose of the statute was to fine of not less than one thousand dollars make the prohibition applicable to every nor more than twenty thousand dollars." method of dealing by a carrier by which In this act we find punishment by im- the forbidden result could be brought about.

rates as to all and to destroy favoritism, these last being accomplished by requiring the publication of tariffs and by prohibiting secret departures from such tariffs, and

$73

If the public purpose which the statute was discriminations, irrespective of actual transintended to accomplish be borne in mind, portation, for it is specifically made an ofits meaning becomes, if possible, clearer." fense to receive any rebate or concession The Elkins act proceeded upon broad lines whereby any such property is, by any deand was evidently intended to effectuate vice whatever, transported at a less rate the purpose of Congress to require that all than that named, published, and filed by the shippers should be treated alike, and that carrier; and jurisdiction is given to prosethe only rate charged to any shipper for cute in any criminal court of the United the same service, under the same condi- States in the district through which the tions, should be the one established, pub- transportation may have been conducted. lished, and posted as required by law. It is not so much the particular form by which or the motive for which this purpose was accomplished, but the intention was to prohibit any and all means that might be resorted to to obtain or receive concessions and rebates from the fixed rates, duly posted and published.

the circuit court of appeals for the sixth, er. Re Palliser (Palliser v. United States) circuit. In that case the prosecution was for false billing by the shipper, under § 2 of the act of 1889, wherein the statute provided punishment for the offense in a single district, and it was there held that the crime was complete in the district in which the false billing was made and the goods delivered to the carrier for transportation, and that its actual carriage was not an essential element of the offense; and that a prosecution in Texas for goods falsely billed and delivered to the carrier in Ohio could not be mai tained.

Under the amended act, transportation with a rebate, or at a concession from the established rates, is made an offense as to the shipper as well as the carrier, thereby differentiating the Elkins act from § 2 of the act of 1889, as construed in the Davis Case. In the Davis Case it was specifically said:

136 U. S. 257, 265, 34 L. ed. 514, 517, 10 Sup. Ct. Rep. 1034; Burton v. United States, 202 U. S. 344, 387, 50 L. ed. 1057, 1073, 26 Sup. Ct. Rep. 688. This doctrine finds illustration in Palliser's Case, supra, in which a person was prosecuted in Connecticut for mailing a letter in New York, addressed to the postmaster in the former state, to induce him to violate his official duty, and it was therein argued that the offense was complete in New York when the letter was mailed, and that only in the New York district could the prosecution be constitutionally had; but this court, speaking through Mr. Justice Gray, said: "There can be no doubt at all, if any offense was committed in New York, the offense was continuing to be committed when the letter reached the postmaster in Connecticut."

In that case the offender had done no act out of New York, and the acts performed "Such transportation may be through a by him were complete when the letter was number of districts, but Congress has given delivered at the postoffice in that state; but jurisdiction for punishment of the crime in this court held the crime to be a continuing the district in which the offense is com- one. We think the doctrine for stronger mitted. It must have been in the con- reason applies in the present case, for templation of Congress that the fraudulent transportation is an essential element of representations may be made in one place, the offense, and, as we have said, transand the transportation, in the sense of portation equally takes place over any and actual carriage, obtained as a result there- all of the traveled route, and during transof, may be to a state or district remote portation the crime is being constantly from the place of delivery, and through a committed. It does not follow, from this number of districts of the United States. view of the character of the offense, that, If it was contemplated that the crime could a single transportation of goods can be made only be committed when the carriage con- the basis of repeated separate criminal* tracted for was concluded, quite a different charges in each of the districts through provision would have been inserted than which the transportation at an illegal rate the one requiring punishment in the dis-is had. Take the present case. The charge trict where committed. Congress, in passing this act, and providing for the place of trial and punishment in a single district, evidently contemplated the consummation of the offense at the place where the goods are billed by the shipper and the delivery for transportation takes place.”

But it is said this construction of the act is in violation of the 6th Amendment of the Constitution of the United States, which requires crimes to be prosecuted and punished in the state or district where the same are committed, and that, as the transportation was had, at least in part, in Kansas, the offense was there completed and could not be prosecuted elsewhere. But the constitutional provision does not require the prosecution of the defendant in the district wherein he may reside at the time of the commission of the offense, or where he may happen to be at that time, provided he is prosecuted where the offense is committed. The constitutional requirement is as to the locality of the offense, and not the personal presence of the offend28 S. C.-28.

is of a single, continuous carriage from Kansas City to New York at a concession from the legal rate for the part of the carriage between the Mississippi river and New York of 12 cents for each 100 pounds so transported. This is a single, continuing offense, not a series of offenses, although it is continuously committed in each district through which the transportation is received at the prohibited rate.

To say that this construction may work serious hardship in permitting prosecutions in places distant from the home and remote from the vicinage of the accused is to state an objection to the policy of the law, not to the power of Congress to pass it. Hyde v. Shine, 199 U. S. 62, 78, 50 L. ed. 90, 95, 25 Sup. Ct. Rep. 760. But this is a large country, and the offense under consideration is one which may be constantly committed through its length and breadth. This situation arises from modern facilities for transportation and intercommunication in interstate transportation, and considerations of convenience and hard