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limiting his contracts “on account of said property” to $5,000 without Smith's written consent, requiring agreement of the parties as to prices and terms, and providing that Rainey shall give Smith true accounts “of all the transactions relating to the business” and full information, etc. The seventh clause provides more specifically for Rainey's keeping books of account, to be always open to Smith, and for his sending to Smith monthly “an account in full of all transactions during the preceding month, including all contracts made and all disbursements and receipts, and showing all the assets and liabilities of the partnership.” By the eighth clause Rainey accepts the management without other remuneration than his one-third of the net profits of the business.
The ninth clause reads as follows: “That after the repayment to the said Jesse Hoyt Smith of the said sum of eighteen thousand dollars ($18,000) so advanced by him for the purchase of said tract and his repayment of all advances which shall be hereafter made by him on account of said property or said business, together with interest on all such sums at six (6) per cent. per annum, the net profits of said land and said business shall be divided between the parties hereto as follows: Said Jesse Hoyt Smith shall be entitled to the twothirds (3) thereof, and said William J. Rainey the one-third (3) thereof; and the losses if any, shall be shared between the parties in ratio aforesaid. It is further agreed and understood between the parties hereto that this Memorandum of Agreement is made for the purpose of stating explicitly the terms of copartnership on which the said Jesse Hoyt Smith and William J. Rainey have joined in the purchase, improvement and sale of said tract."
The result of the whole agreement then is that it forms a partnership, and that when it comes to the division of assets the appellant is to be repaid, not merely his share of the capital, but the whole eighteen thousand dollars and his advances before any profits are declared. This means, of course, that he is to be repaid them out of the land or its proceeds. The
advance of one-third of the purchase price, which appears in the beginning as a loan to Raincy, is regarded at the end, with manifest justice, as standing on the same footing as the later advances made more specifically to the business. The whole land is treated as firm capital, and the whole sum paid for is treated as having been contributed, as in fact it was, by Smith, and as contributed to the firm.
A partner has a lien on the firm's assets for the repayment of his advances to the firm, and the ninth article, providing for the repayment of the whole sum advanced by Smith for the venture, means that he shall be repaid out of the land regarded as assets. Taking the instrument as a whole, we are of opinion that it gives the appellant a licn. Whether the defendants nevertheless may not be entitled to priority, is not before us now. The only ground on which the demurrer was or could have been sustained was that the plaintiff had no lien at all.
ARMOUR PACKING COMPANY v. UNITED STATES.
SWIFT AND COMPANY v. SAME.
MORRIS AND COMPANY v. SAME.
CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH
Nos. 467, 468, 469, 470. Argued January 20, 21, 22, 1908.—Decided March 16, 1908.
A device to obtain rebates to be within the prohibition of the Interstate
Commerce Act of March 2, 1889, 25 Stat. 857, and the Elkins Act of February 19, 1903, 32 Stat. 847, need not necessarily be fraudulent. The term "device" as used in those statutes includes any plan or contrivance whereby merchandise is transported for less than the published rate, or any other advantage is given to, or discrimination practiced in favor of, the shipper.
In construing the Elkins Act it will be read not only in the light of the pre
vious legislation on the same subject, but also of the purpose which Congress had in mind in enacting it—to require all shippers to be treated alike and to pay one rate as established, published and posted. New
Haven Railroad Co. v. Interstate Commerce Commission, 200 U. S. 361, 391. The requirements of $ 2 of Art. III of, and of the Sixth Amendment to, the
Federal Constitution relate to the locality of the offense and not to the
personal presence of the offender. Transportation of merchandise by a carrier for less than the published rate
is, under the Elkins Act, a single continuing offense, continuously committed in each district through which the transportation is conducted at the prohibited rate, and is not a series of separate offenses, and the provision in the law making such an offense triable in any of those districts, confers jurisdiction on the court therein, and does not violate $ 2 of Art. III of, or the Sixth Amendment to, the Federal Constitution, providing that the accused shall be tried in the State and district where the
crime was committed. The Interstate Commerce Act embraces the whole field of interstate com
merce; it does not exempt such forcign commerce as is carried on a through bill of lading, but in terms applies to the transportation of property shipped from any place in the United States to a foreign country and car
ried from such place to a port of transhipment. The export and preference clause of the Constitution prohibits burdens only
by way of actual taxation and duty, or legislation intending to give, and actually giving, the prohibited preference, and does not prohibit the merely incidental effect of regulations of interstate commerce wholly within the power of Congress; and the fact that such regulations in the Interstate Commerce Act may affect the ports of one State having natural advantages more than those of another State not possessing such advantages does not render the act unconstitutional as violating that pro
vision. There is no provision in the Elkins Act exempting special contracts from its
operation, nor is there any provision for filing and publishing such contracts, and the fact that a contract was at the published rate when made does not legalize it after the carrier has advanced the published rate. The provisions as to rates, being in force in a constitutional act of Congress when the contract is made, are read into the contract and become a part thereof, and the shipper, who is a party to such a contract, takes it subject to any change thereafter made in the rate to which he must
conform or suffer the penalty fixed by law. An indictment which clearly and distinctly charges each and every clement
of the offense intended to be charged, and which distinctly advises the defendant of what he is to meet at the trial is sufficient; and so held in this case as to an indictment for accepting rebates prohibited by the Elkins Act, although the details of the device by which the rebates were
received were not set out. While intent is to some extent essential in the commission of crime, and
Argument for Petitioners.
without determining whether a shipper honestly paying a reduced rate in the belief that it is the published rate is liable under the statute, held that shippers who pay such a rate with full knowledge of the published rates, and contend that they have a right so to do, commit the offense prohibited by the Elkins Act, and are subject to the penalties
provided therein, even though their contention be a mistake of law. 153 Fed. Rep. 1, affirmed.
The facts are stated in the opinion.
Mr. Frank Hagerman and Mr. J. C. Cowin, with whom Mr. A. R. Urion, Mr. Henry Veeder and Mr. M. W. Borders were on the brief, for petitioners:
A shipper can be guilty of an offense under the Elkins Act only if and when he is guilty of some bad faith or fraudulent conduct in using some kind of device intentionally dishonest or some underhand method of obtaining a rebate, concession or discrimination. It was never intended that he should be held guilty if he honestly believed he was entitled to the rate at which he openly shipped.
The purpose of the Elkins Act was to enlarge the character of devices specified in the act of 1889, and it should have read into it the language of the act of 1889 by making willfulness and knowledge essential elements. Otherwise the statute is incomplete and to be sustained at all must be read in the light of the common law, leaving the court to infer that the legislative intent was only to create guilt on the part of the shipper if he knew of the published tariff and then by some device obtained a concession thereunder. See United States v. Carll, 105 U. S. 611; United States v. Milwaukee Refrigerator Transit Co., 142 Fed. Rep. 247, 251, 252.
The word "device" cannot be taken from the statute, for it is a word of well-defined legal meaning, the trial judge having adopted that given by Webster. See A. & E. Enc. I aw (2d ed.), 448; 1 Bouvier's Law Dictionary (Rawle's Revision); Black's Law Dictionary; Potter v. State, 27 Arkansas, 362; State v. Blackstone, 115 Missouri, 427.
Not only was it necessary for the shipper to use some device,
Argument for Petitioners.
but he must have known what the tariff was and used the device to evade it. An innocent shipper paying a rate called for is guiltless, even though the tariff is not charged. Pond-Decker Lumber Co. v. Spencer, 30 C.C. A. 430; S. C., 86 Fed. Rep. 846, 848; United States v. Milwaukee Ref. Transit Co., 142 Fed. Rep. 247, 252.
There was no jurisdiction, because the alleged crime was not committed within the district, nor any concession made as to any portion of the route therein.
The indictment only charged, and the proof conclusively showed, that the alleged concession was obtained in Kansas upon that portion of the transportation which was conducted east of the Mississippi River. So far as concerned the Western District of Missouri, the shipment was merely carried through it by the railway company.
If the Elkins Act is to be construed to authorize a prosecution of the shipper outside of the district in which the concession was obtained, it is unconstitutional under $ 2, Art. III and the Sixth Amendment of the Federal Constitution. Tinsley v. Treat, 205 U. S. 20. So it was decided as to the act of 1889, 32 Stat. 847, prohibiting shippers from obtaining concessions, In re Belknap, 96 Fed. Rep. 614, 616; Davis v. United States, 104 Fed. Rep. 136, 138; as to the act of 1887, 24 Stat. 379, 382, prohibiting the giving of rebates, United States v. Fowkes, 53 Fed. Rep. 13, 16; and as to the anti-lottery act, $ 3894, Rev. Stat., as amended, 26 Stat. 465, in so far as it attempted to authorize a prosecution in a district to which the matter was mailed, where the offense charged was depositing the matter in the mail, see United States v. Conrad, 59 Fed. Rep. 458, 465.
The Elkins Act, so far as it attempts to authorize a prosecution in any district through which the transportation is conducted, should not in any event be held to apply, as against a shipper who committed no act within the district, especially when the alleged concession was not upon any part of the route therein.
The offense, if any was committed by the shipper, was com