PROVIDED, That the appeal must be taken within thirty days from the entry of such order or decree, and it shall take precedence in the appellate court; and the proceedings in other respects in the court below shall not be stayed unless otherwise ordered by that court during the pendency of such appeal.

§ 10. Criminal Liability of Carrier. That any common carrier subject to the provisions of this act, or, whenever such common carrier is a corporation, any director or officer thereof, or any receiver, trustee, lessee, agent, or person, acting for or employed by such corporation, who, alone or with any other corporation, company, person, or party, shall willfully do or cause. to be done, or shall willingly suffer or permit to be done, any act, matter, or thing in this act prohibited or declared to be unlawful, or who shall aid or abet therein, or shall willfully omit or fail to do any act, matter, or thing in this act required to be done, or shall cause or willingly suffer or permit any act, matter, or thing so directed or required by this act to be done not to be so done, or shall aid or abet any such omission or failure, or shall be guilty of any infraction of this act, or shall aid or abet therein, shall be deemed guilty of a misdemeanor, and shall, upon conviction thereof in any district court of the United States within the jurisdiction of which such offense was committed, be subject to a fine of not to exceed five thousand dollars for each offense:* [Provided, That if the offense for which any person shall be convicted as aforesaid shall be an unlawful discrimination in rates, fares, or charges, for the transportation of passengers or property, such person shall, in addition to the fine herein

*The penalty of imprisonment was abolished by the Elkins Act, approved February 19, 1903. Failure to file or publish tariff rates is punishable by a fine of not less than $1,000 nor more than $20,000 for each offense. See Elkins Act, ante, page 134.

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before 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.]

Criminal Liability of Carrier for False Bills, Weights or Classification. Any common carrier subject to the provisions of this act, or, whenever such common carrier is a corporation, any officer or agent thereof, or any person acting for or employed by such corporation, who, by means of false billing, false classification, false weighing, or false report of weight, or by any other device or means, shall knowingly and willfully assist, or shall willingly suffer or permit, any person or persons to obtain transportation for property at less than the regular rates then established and in force on the line of transportation of such common carrier, shall be deemed guilty of a misdemeanor, and shall, upon conviction thereof in any court of the United States of competent jurisdiction within the district in which such offense was committed, be subject to a fine of not exceeding five thousand dollars,* [or imprisonment in the penitentiary for a term of not exceeding two years, or both, in the discretion of the court, for each offense.]

Criminal Liability of Shipper for False Bills, Weights or Classification. Any person and any officer or agent of any corporation or company who shall deliver property for transportation to any common carrier, subject to the provisions of this act, or for whom as consignor or consignee any such carrier shall transport property, who

The penalty of imprisonment was abolished by the Elkins Act, approved February 19, 1903, which declares that "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." See Elkins Act, ante, page 134.

shall knowingly and willfully, by false billing, false classification, false weighing, false representation of the contents of the package, or false report of weight, or by any other device or means, whether with or without the consent or connivance of the carrier, its agent or agents, obtain transportation for such property at less than the regular rates then established and in force on the line of transportation, shall be deemed guilty of fraud, which is hereby declared to be a misdemeanor, and shall, upon conviction thereof in any court of the United States of competent jurisdiction within the district in which such offense was committed, be subject for each offense to a fine of not exceeding five thousand dollars* [or imprisonment in the penitentiary for a term of not exceeding two years, or both, in the discretion of the court.]

Joint and Several Criminal Liability of Shipper and Carrier.If any such person, or any officer or agent of any such corporation or company, shall, by payment of money or other thing of value, solicitation, or otherwise, induce any common carrier subject to the provisions of this act, or any of its officers or agents, to discriminate unjustly in his, its, or their favor as against any other consignor or consignee in the transportation of property, or shall aid or abet any common carrier in any such unjust discrimination, such person, or such officer or agent of such corporation or company, shall be deemed guilty of a misdemeanor, and shall, upon conviction thereof in any court of the United States of competent jurisdiction within the district in which

The penalty of imprisonment was abolished by the Elkins Act, approved February 19, 1903, which declares that " 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." See Elkins Act, ante, page 134.

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such offense was committed, be subject to a fine of not exceeding five thousand dollars,* [or imprisonment in the penitentiary for a term of not exceeding two years, or both, in the discretion of the court,] for each offense; and such person, corporation, or company shall also, together with said common carrier, be liable, jointly or severally, in an action on the case to be brought by any consignor or consignee discriminated against in any court of the United States of competent jurisdiction for all damages caused by or resulting therefrom. (As amended March 2, 1889.).

Object and Scope of Section 10.- Section 10 declares the pains and penalties incurred by any person or corporation offending against the provisions of the act, and may be designated as the penal section. It has been modified by the Elkins Act of February 19, 1903, in so far as to abolish imprisonment as a penalty; to declare in what district persons guilty of violations of the Commerce Act may be indicted, and extends also equitable remedies to secure the enforcement of the act. The Elkins Act declares that "imprisonment wherever now prescribed as a penalty being hereby abolished." See Elkins Act, ante, page 134.

Imprisonment, however, may still be imposed under section 6 in proceedings to punish the carrier, its officers, agents, or servants for violation of a mandamus issued under that section. Section 6 declares that a failure to comply with the requirements of such writ shall be punishable as and for a contempt. See section 6, ante, page 132.

Receiver Indictable. A receiver of a railroad corporation is bound to comply with the provisions of the Interstate Commerce Act in like manner as the insolvent corporation which the receiver represents as trustee. He may be indicted for a violation. of its provisions, but he cannot be held to be guilty of a crime

The penalty of imprisonment was abolished by the Elkins Act, approved February 19, 1903, which declares that "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." See Elkins Act, ante, page 134.

for failing to comply with a joint traffic agreement to which he was not a party, and the terms of which he never sanctioned or recognized in any way. United States v. De Coursey, 82 Fed. Rep. 302 (August, 1897, Dist. Ct. No. Dist. N. Y.).

False Billing -- Where Indictable. The offense of "false billing" created by section 10, paragraph 3, is complete when the property is delivered for transportation, and such transportation to the place of destination is not essential to constitute the crime. The gist of the offense is the fraudulent act by which the lower rate is secured for the transportation of the property. Prior to the passage of the Elkins Act of February 19, 1903, it was held under section 10 that the crime of false billing could be prosecuted only in that district, being the district where the offense was committed, and not elsewhere. Davis v. United States, 104 Fed. Rep. 136 (October, 1900, C. C. A., 6th Circuit).

In the Davis case, which arose prior to the passage of the Elkins Act, defendant was indicted in the Federal court in Texas, charged with a violation of section 10, paragraph 3, of the act for having knowingly and willfully, by "false billing," etc., obtained transportation of property at less than lawful rates. The indictment charged that the acts were committed by defendant in Cincinnati in the southern district of Ohio where the false representations were made and the goods delivered. The court discharged the prisoner on the ground that the crime charged in the indictment was not committed in Texas, the point of destination to which the goods were shipped, but was committed in the southern district of Ohio, and that was the only district in which defendant could lawfully be indicted and tried. Ib.

The court held further that section 731 of the Revised Statutes had no application. That section provides: "When any offense against the United States is begun in one judicial district and completed in another it shall be deemed to have been committed in either, and may be dealt with, inquired of, tried, determined, or punished in either district in the same manner as if it had been actually and wholly committed therein." That the offense under section 10 was not one which required the transportation of the property to Dallas, Tex., to complete it, and that under section 731, United States Revised Statutes, it