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ship, while they may appeal to the legisla- | through bill of lading. Take the present tive branch of the government, will not case. The through rate is obtained by addprevent Congress from exercising its consti- ing the ocean rate to the inland rate. There tutional power in the management and con- is no contractual relation between the railtrol of interstate commerce. We think road carrier and the ocean carrier. The there was jurisdiction to prosecute for the ocean rate is uncertain and variable, depend. offense charged within the western district ing upon time of sailing and available space. of Missouri. The accommodation for ocean shipment was obtained by the shipper and by it made

It is further contended by petitioners that the statutes have no application to a ship-known to the inland carrier. We think the ment on a through bill of lading from an language of the statute, read in the light of interior point in the United States to a the manifest purpose of its passage, shows foreign port. It is alleged that the Elkins the intent of Congress to bring interstate law refers to the original interstate com- commerce within the control of the promerce act, and that its terms do not include visions of the law up to the time of ocean such shipments. Analyzing the 1st section shipment. This construction is reinforced of the act (24 Stat. at L. 379, chap. 104, U. by the broad provisions of § 6 of the act S. Comp. Stat. 1901, p. 3154), it is said as to publishing schedules, showing rates, that it applies to the following kinds of fares, and charges, and filing the same with commerce: (a) interstate commerce; (b) the Interstate Commerce Commission. That commerce between the United States and an such rates, notwithstanding through bills adjacent foreign country; (c) commerce be- of lading, were subject to the provisions of tween places in the United States passing the act, was held, upon full consideration, through a foreign country; (d) commerce and rightfully, as we think, by the Interfrom the United States to a foreign coun-state Commerce Commission. Re Tariffs on try, only while being transported to a point Export & Import Traffic, 10 Inters. Com. of transshipment; (e) commerce from a for- Rep. 55. eign country to points in the United States, but only while being carried from port of entry either in the United States or an adjacent foreign country. And it is contended that § 6, as amended (25 Stat. at L. 855, chap. 382, U. S. Comp. Stat. 1901, p. 3158), does not require the filing of through export tariffs.

The purpose of Congress to embrace the whole field of interstate commerce is made apparent by the exclusion only of wholly domestic commerce in the last clause of § 1 of the original act of 1887, and in the declaration of the scope and purpose of the act, declared in its title. Texas & P. R. Co. v. Interstate Commerce Commission, 162 U. S. 197, 211, 40 L. ed. 940, 944, 5 Inters. Com. Rep. 405, 16 Sup. Ct. Rep. 666. There is no attempt in the language of the act to exempt such foreign commerce as is carried on a through bill of lading; on the contrary, the act in terms applies to the transportation of property shipped from any place in the United States to a foreign country and carried from such place to a port of transshipment.

It is contended that the act, as construed by the circuit court of appeals, makes it conflict with art. 1, § 9, par. 5, of the Constitution, which provides: "No tax or duty shall be laid on any articles exported from any state. No preference shall be given by any regulation of commerce or revenue to the ports of one state over those of another; nor shall vessels bound to or from one state be obliged to enter, clear, or pay duties in another."

The petitioner contends that to permit a statute to have such application to articles intended for foreign export is to place a burden on the exercise of this right, because, before the shipper can lawfully send his goods abroad, and before the carrier can lawfully accept them, there must be a compliance with the established rate on file with the Interstate Commerce Commission. This rate is subject only to be changed as provided by law; and this can be done without notice to the exporter and regardless of his power to comply with the legal rate and meet the competition at the seaport and the conditions of foreign markets. What reasonable ground is there for sup- These things, it is said, place a distinct bur posing that Congress intended to exercise no den upon export trade, and therefore come control over such commerce if it happens within the constitutional prohibition. But to be billed through to the foreign port? it is to be observed that the Constitution Such construction would place such impor- provides for a burden only by the way of tant commerce shipped in the United States taxation or duty, and, unless the alleged to a port for transshipment abroad wholly interference amounts to such taxation or outside the restrictions of the law, and en- duty, it does not come within the constituable shippers to withdraw such commerce tional prohibition. Cornell v. Coyne, 192 from the regulations enforced against other | U. S. 418, 48 L. ed. 504, 24 Sup. Ct. Rep. interstate commerce by the expedient of a 383.

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The regulations of interstate commerce | change in the only way open by the statprovided by the statute now under con- ute. There is no provision for the filing of sideration are within the acknowledged power of Congress under the interstate commerce clause of the Constitution. There is no attempt to levy duties on goods to be exported, and the mere incidental effect in the legal regulation of interstate commerce upon such exportations does not come within this constitutional prohibition.

contracts with shippers, and no method of making them public defined in the statute. If the rates are subject to secret alteration by special agreement, then the statute will fail of its purpose to establish a rate duly published, known to all, and from which neither shipper nor carrier may depart.

It is said that if the carrier saw fit to change the published rate by contract, the effect will be to make the rate available to all other shippers. But the law is not limited to giving equal rates by indirect and uncertain methods. It has provided for the establishing of one rate, to be filed as provided, subject to change as provided, and that rate to be, while in force, the only legal rate. Any other construction of the statute opens the door to the possibility of the very abuses of unequal rates which it was the design of the statute to prohibit and punish.

Nor do we think there is any more force in the contention that this legislation amounts to a preference of ports of one state over those of another within the meaning of the constitutional provision under consideration. This provision was intended to prevent legislation intended to give, and having the effect of giving, preference to the ports of one state over those of another state. It may be true that the regulation of interstate commerce by rail has the effect to give an advantage to commerce wholly by water and to ports which can be reached by means of inland navigation, but these are natural advantages and are not created by statutory law. The fact that regulation, within the acknowledged power of Congress to enact, may affect the ports of one state more than those of another, cannot be construed as a viola-action. But neither shipper nor carrier may tion of this constitutional provision. South Carolina v. Georgia, 93 U. S. 4, 13, 23 L. ed. 782, 784; Pennsylvania v. Wheeling & B. Bridge Co. 18 How. 421, 433, 15 L. ed. 435, 438.

It is strongly urged that there is nothing in the acts of Congress regulating interstate commerce which can render illegal the contract between the shipper and the railroad company covering the period from June to December, 1905. The contract, it is insisted, was at the legal, published and filed rate, and there is nothing in the law destroying the right of contract so essential to carrying on business such as the petitioner was engaged in. But this contention loses sight of the central and controlling purpose of the law, which is to require all shippers to be treated alike, and but one rate to be charged for similar car riage of freight, and that the filed and published rate, equally known by and available to every shipper.

Nor do we find anything in the provisions of the statute inconsistent with this conclusion, in the fact that the statute makes the rate as published or filed conclusive on the carrier. The carrier files and publishes the rate. It may well be concluded by its own

vary from the duly filed and published rate without incurring the penalty of the law.

It may be, as urged by petitioner, that this construction renders impossible the making of contracts for the future delivery of such merchandise as the petitioner deals in, and that the instability of the rate introduces a factor of uncertainty, destructive of contract rights heretofore enjoyed in such property. This feature of the law, it is insisted, puts the shipper in many kinds of trade at the mercy of the carrier, who may, arbitrarily change a rate upon the faith of which contracts have been entered into. But the right to make such regulations is inherent in the power of Congress to legislate respecting interstate commerce, and such considerations of inconvenience or hardship address themselves to the law-making branch of the government. New York, N. H. & H. R. Co. v. Interstate Commerce Commission, 200 U. S. 399, 50 L. ed. 524, 26 Sup. Ct. Rep. 272. It may be that such conIn the Elkins act, Congress has made it a tracts should be recognized, giving stabil. penal offense to give or receive transporta-ity to rates for limited periods; that the tion at less than the published rate. This contracts being filed and published, and the rate can only be raised by ten days' or low-rate stipulated known and open to all, no ered by three days' notice. Sec. 6, 25 Stat. injustice would be done. But, as we have at L. 855, chap. 382, U. S. Comp. Stat. 1901, said, such considerations address themselves p. 3158. There is no provision excepting to Congress, not to the courts. It is the special contracts from the operation of the province of the judiciary to enforce laws law. One rate is to be charged, and that constitutionally enacted, not to make them the one fixed and published in the manner to suit their own views of propriety or juspointed out in the statute, and subject to tice.

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The statute being within the constitu-, quently had occasion to hold that the aotional power of Congress, and being in force when the contract was made, is read into the contract and becomes a part of it.

If the shipper sees fit to make a contract covering a definite period, for a rate in force at the time, he must be taken to have done so subject to the possible change of the published rate in the manner fixed by statute, to which he must conform or suffer the penalty fixed by law.

cused is entitled to know the nature and cause of the accusation against him, and that a charge must be sufficiently definite to enable him to make his defense and avail himself of the record of conviction or acquittal for his protection against further prosecutions, and to inform the court of the facts charged, so that it may decide as to their sufficiency in law to support a conviction, if one be had, and the elements of the offense The right to charge other than the pub- must be set forth in the indictment with lished rate because of a contract alleged to reasonable particularity of time, place, and have provided for the rate in force at the circumstances. And it is true it is not altime, but, owing to changed conditions, sub-ways sufficient to charge statutory offenses sequently becoming inadequate to provide in the language of the statutes, and, where for the payment of the published rate, was the offense includes generic terms, it is dealt with by this court in New York, N. H. & H. R. Co. v. Interstate Commerce Commission, supra, where a contract for the purchase and carriage of coal at its inception produced the established rate to the carrier, which it subsequently failed to do. This court, speaking through Mr. Justice White, said:

"Further, as the prohibition of the interstate commerce act is ever operative, even if the facts established that at the particular time the contract was made, considering the then cost of coal and other proper items, the net published tariff of rates would have been realized by the Chesapeake & Ohio from the contract, which is not the case, it is apparent that the deliveries under the contract came under the prohibition of the statute whenever, for any cause, such as the enhanced cost of coal at the mines, an increase in the cost of the ocean carriage, etc., the gross sum realized was not sufficient to net the Chesapeake & Ohio its published tariff of rates. This must be the case in order to give vitality to the prohibitions of the interstate commerce act against the acceptance at any time by a carrier of less than its published rates. We say this because we think it obvious that such prohibitions would be rendered wholly ineffective by deciding that a carrier may avoid those prohibitions by making a contract for the sale of a commodity, stipulating for the payment of a fixed price in the future, and thereby acquiring the power, during the life of the contract, to continue to execute it, although a violation of the act to regulate commerce might arise from doing so."

It is alleged that the indictment is insufficient, in that it fails to set out the kind of device by which traffic was obtained, and of what the concession consisted, and how it was granted. Authorities are cited to the proposition that, in statutory of fenses, every element must be distinctly charged and alleged. This court has fre

not sufficient that the indictment charge the offense in the same generic terms, but it must state the particulars. United States v. Hess, 124 U. S. 483, 31 L. ed. 516, 8 Sup. Ct. Rep. 571; Evans v. United States, 153 U. S. 584, 38 L. ed. 830, 14 Sup. Ct. Rep. 934. But an indictment which distinctly and clearly charges each and every element of the offense intended to be charged, and distinctly advises the defendant of what he is to meet at the trial, is sufficient.

And in Ledbetter v. United States, 170 U. S. 606, 612, 42 L. ed. 1162, 1164, 18 Sup. Ct. Rep. 774, 776, Mr. Justice Brown, speaking for the court, said:

"Notwithstanding the cases above cited from our reports, the general rule still holds good that, upon an indictment for a statutory offense, the offense may be described in the words of the statute, and it is for the defendant to show that greater particularity is required by reason of the omission from the statute of some element of the offense."

In the present case no objection was made to the indictment until after verdict by motion in arrest of judgment.

Had it been made by demurrer or motion, and overruled, it would not avail the defendant, in error proceedings, unless it appeared that the substantial rights of the accused were prejudiced by the refusal to require a more specific statement of the particular mode in which the offense charged was committed. U. S. Rev. Stat. § 1025, U. S. Comp. Stat. 1901, p. 720; Connors v. United States, 158 U. S. 408, 411, 39 L. ed. 1033, 1034, 15 Sup. Ct. Rep. 951.

There can be no doubt that the accused was fully advised of, and understood, the precise facts which were alleged to be a violation of the statute.

As we interpret this law, it is intended, among other things, to prohibit and punish the receiving of a concession for the transportation of goods from the duly filed and published rate. Each and all of the ele

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in, the packing company is adjudged a notice. It is a limitation upon power incriminal and fined the sum of $15,000. stead of a grant of authority.

The

It may be said that the remedy of the shipper is to pay the increased rates and then sue the carrier for the excess. But upon what ground can such an action be maintained? If the contract is no longer valid, if it has been destroyed by the mere action of the carrier in publishing a new tariff, and the rates of the latter are in themselves reasonable, although in excess of the contract provisions, how can a shipper recover damages? The contract is gone, has ceased to be valid, the new rates are reasonable, and the shipper must abide by the consequences of the arbitrary act of the carrier.

I want to emphasize this matter. railway company and the packing company entered into a fair and reasonable contract for transportation. Independently of the statute, it was valid in all respects, and could have been enforced by the packing company against the railway company, but, according to the ruling of the court, the railway company was authorized arbitrarily to break the contract, raise the amount to be paid for transportation, thus unsettling the business of the shipper, even, it may be, to the extent of wholly destroying it. Sustaining under those circumstances the power of the carrier and punishing the shipper shocks my sense of justice, and I can- But it may be said that prescribing the not impute to Congress an intent by its limitation of ten days' notice of an increase legislation to make possible such a result. in rates is an implied authority to the carIt has been one of the boasts of our juris-rier to make such a raise, providing the new prudence that it upholds the sacredness of rates are reasonable. To my mind it seems contracts. By constitutional provision a more in accordance with the spirit and purstate is estopped from passing a law im- pose of the interstate commerce act to hold pairing the obligation of a contract, and that, there being no express authority given again and again has this court stricken to raise rates, the fact that the railway down legislation having such effect. While company has made a contract to operate there is no such restriction upon the power for a reasonable time should be construed of Congress, yet Congress has in this case as an inhibition upon its right to make such broken no contract. It has simply, as held a raise, and that the rates as fixed by its by the court, given permission to a car-contract should continue for all shippers rier, arbitrarily and without inquiry or de- until the termination of the period named cision by any tribunal, to repudiate its therein. contract.

Again, we have held that in “enacting the statutes establishing the Interstate Commerce Commission the purpose of Congress was to facilitate and promote commerce." Texas & P. R. Co. v. Interstate Commerce Commission, 162 U. S. 197, 198, 40 L. ed. 940, 5 Inters. Com. Rep. 405, 16 Sup. Ct. Rep. 666. But to deny to parties the power of agreeing upon rates of transportation for a reasonable time tends to destroy, and not promote, commerce. One of the conditions of successful business-one of the things which induces new industries-is the ability to provide in advance for certainty of expenditures, including among them the cost of transportation. Who will engage in any new enterprise or invest money in a manufacturing industry when he knows that he cannot make a definite contract for rates of transportation to and from his factory, but is advised that whatever contract he makes may, at the whim of the carrier, upon ten days' notice, be set aside and a higher rate imposed?

Further, it seems to be implied that Congress has given express authority to the carrier to raise its rates, but this is not во. The single provision is that it shall not raise its rates, without giving ten days'

Obviously, from the tone of the opinion of the court, the wrong done to the shipper is recognized, and the argument is only that the responsibility for the wrong rests upon Congress. In other words, the court has unloaded upon Congress the injustice which the construction placed by it upon the statute accomplishes. To my mind a better way would be to enforce the contract and thus secure justice in this case, leaving to Congress the enactment of additional legislation, if deemed necessary, to prevent the possibilities of secret arrangements between

carrier and shipper.

I am authorized to say that the CHIEF JUSTICE and Mr. Justice Peckham, concur in this dissent. They are also of the opinion that the trial court, the district court of the western district of Missouri, had no jurisdiction of the alleged offense, but that such jurisdiction was vested in the district court of Kansas, holding that when goods are delivered to the carrier, and the shipper has solicited, accepted, or received any rebate, concession, or discrimination from such carrier, "in respect to the transportation" of the goods, the crime is then complete, at least, so far as regards the shipper, and it cannot be made a continuing crime in each district through which the goods pass in their transportation.

The

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