76

which reasonable diligence and foresight could have avoided, the sidetracking of the train to allow passage of other trains, the necessity of which could have been anticipated," nor the failure of the carrier to provide unloading stations.78 But it does include an accident to the train which could not reasonably have been anticipated and avoided, and the existence of a heavy snowstorm.80

79

[§ 1000] (c) Provisions for Care of Animals Obviating the Necessity for Unloading. A further proviso found in the statute is that, when animals are carried in cars, boats, or other vessels in which they can and do have proper food, water, space, and opportunity to rest, the provisions in regard to their being unloaded shall not apply.81 This proviso deals with the structure of a car in which animals are transported, without taking into account the habits of animals; and where a car is so constructed that animals transported therein have no opportunity to rest by lying down, the carrier must unload them, for "opportunity to rest" means "opportunity to lie down. To bring the case within the proviso, the carrier must show not only that the animals can have the supplies specified but that they are in fact accorded them.83

1982

76. U. S. v. Atchison, etc., R. Co., 166 Fed. 160.

77. U. S. v. Southern Pac. R. Co., 157 Fed. 459.

78. U. S. v. Atchison, etc., R. Co., 166 Fed. 160; U. S. v. Southern Pac. R. Co., 157 Fed. 459.

79. U. S. v. Boston, etc., R. Co., 228 Fed. 915 (engine trouble); Chicago, etc., R. Co. v. U. S., 194 Fed. 342, 114 CCA 334.

80. U. S. v. Philadelphia, etc., R. Co., 223 Fed. 202.

81. Act June 29, 1906 (34 U. S. St. at L. 608 c 3594).

82. Northern Pac. R. Co. v. Finch, 225 Fed. 676, 678.

83. Erie R. Co. v. U. S., 200 Fed. 406, 118 CCA 558 [aff 191 Fed. 941]; U. S. v. New York Cent., etc., R. Co., 186 Fed. 541; U. S. v. Chicago, etc., R. Co., 184 Fed. 984 [aff 195 Fed. 241, 115 CCA 193] (holding that it was no answer to the carrier's liability that the shipper accompanied the stock, agreeing to care for them, and that he could have provided proper attention, and that, on being inquired of en route as to how he was faring, he stated that he was "all right" and that he could feed and water his stock).

were cars,

[a] Failure to put sufficient water in troughs.-Where cattle transported in patent cattle equipped with troughs affording an opportunity to water them without unloading, but the cattle were kept in the cars for a period longer than that authorized by statute, without water being introduced in the troughs for at least a part of the cattle, the carrier was liable for the penalty. U. S. v. New York Cent., etc., R. Co.. 186 Fed. 541.

[b] Overloading.—(1) Where cars provided for the transportation of cattle were sufficiently large to enable all the cattle to lie down at different times, but not sufficiently large to permit all of them to lie down at the same time, they were not sufficient to exempt the carrier from the duty to unload for rest, under the Twenty-Eight-Hour Law. Erie R. Co. v. U. S., 200 Fed. 406, 408, 118 CCA 558 [aff 191 Fed. 941] (where the court said: "It is the object of the statute to secure to every animal in the shipment proper space and opportunity to rest. Not only is cruelty to single one 'cruelty to animals,' but the landing of a single one in a condition bad for slaughtering exposes the persons who may eat the meat from that one carcass to a risk which might

a

89

not exist if this statute were strictly conformed to. Every animal in this shipment might have proper opportunity to rest if they all agreed to take turns in occupying space. But such agreement could not be brought about, and, for aught that any one can tell, two or three or four cattle of his shipment may have been deprived of the opportunity to rest, even for the 8 hours out of every 24, which is the lowest period of

rest contended for by the defendant"). (2) Where, in the shipment of cattle from Chicago to New York, one of the cars, thirty-six feet long, contained twenty-one bulls, tied side by side to alternate sides of the car, and in a number of other cars from eighteen to nineteen large cattle were carried, the cars were too heavily loaded, it appearing by uncontradicted proof that cattle under transportation should have at least two and one-half feet of space for each animal. U. S. v. New York Cent., etc., R. Co., 186 Fed. 541. 84.

Act June 29, 1906 (34 U. S. St. at L. 608 c 3594).

85. Southern Pac. Co. V. U. S.. 171 Fed. 360, 96 CCA 256 [aff 162 Fed. 412].

86. U. S. v. Atchison, etc., R. Co., 185 Fed. 105, 107 CCA 323; Southern Pac. Co. v. U. S., 171 Fed. 360, 96 CCA 256 [aff 162 Fed. 412]; U. S. v. Atchison, etc., R. Co., 166 Fed. 160, 163 (where it was said: "Where the 36-hour period will expire in the nighttime, the carrier should unload during the preceding day").

87. U. S. v. Northern Pac. Terminal Co.. 186 Fed. 947; U. S. v. Lehigh Valley R. Co., 184 Fed. 971 [aff 187 Fed. 1006, 109 CCA 211].

[a] "In estimating the confinement, so as to determine whether or not the statute has been violated, we always come backwards from the unloading in question, and ascertain when the cattle were last before unloaded for rest, food, and water, or shipped, and when reloaded. Commencing our reckoning of time at that point, we go forward to the time when next unloaded for rest, food, and water, and if we find that the cattle were confined for more than 28 hours, or more than 36 hours in case of consent by the owner or person in charge, and also find that unloading was not prevented by storm, or by other accidental or unavoidable causes. we have a completed violation of the law." U. S. v. New York Cent., etc., R. Co., 221 Fed. 1003.

90

[b] Defendant, a terminal railroad company, received a carload of horses from a connecting railroad company, which had transported them in interstate commerce. Such carrier had kept them confined in the car for more than twenty-eight hours without unloading for rest, water, and feeding, in violation of the Twenty-Eight Hour Law (Act June 29, 1906, (34 U. S. St. L. 607 c 3594 § 1), and was indicted and fined therefor. Defendant received them for transportation over its line for some thirteen hundred feet to stockyards, and moved them to such yards with all speed possible, and there unloaded them for rest, water, and feed. It was held that defendant was not chargeable with violation of the statute, but that, on the contrary, its action aided in giving effect to its object and purpose. Northern Pac. Terminal Co. v. U. S., 184 Fed. 603 [rev 181 Fed. 879, 882].

88. U. S. v. Northern Pac. Terminal Co., 186 Fed. 947; U. S. v. Lehigh Valley R. Co., 184 Fed. 971 [aff 187 Fed. 1006, 109 CCA 211]. And cases supra § 997 text and note 53.

89. New York Cent., etc., R. Co. v. U. S., 165 Fed. 833. 91 CCA 519; U. S. v. Southern Pac. R. Co., 162 Fed. 412 [aff 171 Fed. 360, 364, 96 CCA 252, 256]; U. S. v. Baltimore, etc., R. Co., 159 Fed. 33, 86 CCA 223 [mod 220 U. S. 94, 31 SCt 368, 55 L. ed. 384]. And see cases in the following note.

90. Missouri, etc., R. Co. v. U. S., 178 Fed. 15, 101 CCA 143; Atchison, etc., R. Co. v. U. S.. 178 Fed. 12, 101 CCA 140; U. S. v. Southern Pac. Co., 162 Fed. 412 [aff 171 Fed. 360, 364, 96 CCA 252, 256]; U. S. v. Philadelphia, etc., R. Co., 160 Fed. 696; U. S. v. Baltimore, etc.. R. Co., 159 Fed. 33, 86 CCA 223_[mod 220 U. S. 94, Contra 31 SCt 369, 55 L. ed. 3841. U. S. v. Louisville, etc.. R. Co., 157 Fed. 979; U. S. v. Central of Georgia R. Co.. 157 Fed. 893; U. S. v. Southern Pac. Co., 157 Fed. 459; U. S. v. Illinois Cent. R. Co., 156 Fed. 182 [rev on other grounds 170 Fed. 542, 95 CCA 628].

"We do not understand the statute to make a violation of its provisions a crime. It is true that a penalty is imposed for its violation, but the penalty is a pecuniary one only. which Congress expressly provided shall be recovered by civil action in the name of the United States, having, as we think, the ordinary inci

Jurisdiction and venue. In as much as the action is civil in its nature, the clause of the Twenty-EightHour Law which authorizes the action to be brought in the federal court of the district where the violation may have been committed, or the person or the corporation resides or carries on business, is not in violation of the provision of the federal constitution declaring that in criminal cases the accused shall be entitled to a trial in the district where the crime has been committed.91

94

Pleading. The complaint must state the length of time live stock was confined without food, water, and rest, ,92 and must allege that the act for which the penalty is sought to be imposed was done "knowingly and willfully," 93 as otherwise it is fatally defective for failing to state an offense. It is not necessary, however, that the complaint should negative the matters of excuse designated by the statute, as these are matters of defense to be alleged by the carrier,95 and hence an allegation in the declaration negativing their existence is surplusage and need not be proved.96 A complaint describing defendant as "lessee" of the road, and otherwise following the language of the statute is sufficient after verdict, although it does not expressly allege that defendant was at the time operating the road.97

Evidence. Plaintiff in an action to recover the penalty prescribed by the statute is not required to prove the nonexistence of accidental or unavoidable causes which might have prevented a compliance with the requirements of the statute and which could not have been anticipated by the exercise of diligence and foresight as such causes are matters

Cent. R. Co. v. U. S., 164 Fed. 400, 403, 90 CCA 388.

91. Southern Pac. Co. v. U. S.. 171 Fed. 364, 96 CCA 256 [aff 162 Fed. 412].

92. U. S. v. Oregon Short Line R. Co., 218 Fed. 868.

93. St. Louis Merchants' Bridge Terminal R. Co. v. U. S., 209 Fed. 600, 126 CCA 422; U. S. v. Oregon Short Line R. Co., 160 Fed. 526.

94. Chicago, etc., R. Co. v. U. S., 195 Fed. 241, 115 CCA 193; New York Cent., etc., R. Co. v. U. S., 165 Fed. 833, 91 CCA 519; U. S. v. Oregon Short Line R. Co., 160 Fed. 526.

[a] The reason assigned is that, although the exception is contained in the enacting clause of the act, the act created a general offense and not one limited to particular conditions. "By the excepting clause a concession was made to necessity, and the carrier is protected against punishment for doing that which it could not avoid. The offense is thus not defined or qualified, but an excuse only is afforded to the carrier.' U. S. v. Oregon Short Line R. Co., 160 Fed. 526, 529.

95. New York Cent., etc., R. Co. v. U. S., 165 Fed. 833, 91 CCA 519. See also infra note 98.

96. Grand Trunk R. Co. v. U. S., 229 Fed. 116. 143 CCA 392.

97. New York Cent., etc., R. Co. v. U. S., 165 Fed. 833, 91 CCA 519 (where it was said that technical objections to the declaration are without merit after verdict).

98. Grand Trunk R. Co. v. U. S., 229 Fed. 116, 143 CCA 392; U. S. v. Delaware, etc., R. Co.. 206 Fed. 513; New York Cent., etc.. R. Co. v. U. S., 165 Fed. 833, 91 CCA 519; U. S. v. Oregon Short Line R. Co., 160 Fed. 526.

99. U. S. v. Delaware, etc., R. Co., 220 Fed. 944.

1. Missouri, etc., R. Co. v. U. S., 178 Fed. 15, 101 CCA 143; Atchison, etc., R. Co. v. U. S., 178 Fed. 12, 101 CCA 140; New York Cent., etc., R. Co. v. U. S., 165 Fed. 833, 91 CCA 519;

of defense.98 The burden is on a connecting_carrier which has received stock already confined for a period longer than that allowed by statute to show that it acted with reasonable promptness in removing the car to its nearest unloading point and in commencing to unload.99 Plaintiff is required to establish its case only by a preponderance of the evidence as in other civil cases, and not beyond a reasonable doubt as in criminal cases.1

Instructions on a theory which there is no evidence to support are properly refused.2

Province of court and jury. The legality of written requests for an extension of time of the confinement of cattle is a question of law for the court. Whether facts amounting to a violation of the statute are shown to exist is a question for the jury. The court fixes the amount of the penalty, within the statutory limits.5

6

[§ 1004] (7) Amount and Computation of Penalties. The statute provides a penalty of not less than one hundred dollars, and not more than five hundred dollars, for each violation of its provisions, and where there has been a verdict in favor of the government, the duty of fixing the amount of the penalty by judgment devolves on the court." The unit of offense for which a separate penalty may be imposed is neither the individual animal, nor the carload, nor the trainload,10 nor the individual shipment; it is the whole number of animals loaded at one time and as to which the time for unloading expires at the same time, every failure to unload any animals being a complete offense when the time for so doing has expired.12 The time of confinement of live stock beyond the period fixed

9

384 [mod and aff 159 Fed. 33, 86 CCA 223]; U. S. v. Boston, etc., R. Co., 15 Fed. 209.

9. Baltimore, etc., R. Co. v. U. S., 220 U. S. 94, 31 SCt 368. 55 L. ed. 384; U. S. v. Southern Pac. Co., 171 Fed. 360, 96 CCA 252 [aff 162 Fed. 412]; U. S. v. St. Louis R. Co., 107 Fed. 870.

10. Baltimore, etc., R. Co. v. U. S., 220 U. S. 94, 31 SCt 368, 55 L. ed. 384 [mod and aff 159 Fed. 33, 86 CCA 223]; U. S. v. New York, etc., R. Co., 168 Fed. 699, 94 CCA 76.

[a] Contra but overruled cases.U. S. v. St. Louis, etc., R. Co., 107 Fed. 870 (where, however, the trainload constituted but one shipment).

11. Baltimore, etc., R. Co. v. U. S., 220 U. S. 94, 31 SCt 368, 55 L. ed. 384 [mod and aff 159 Fed. 33, 86 CCA 223].

[a] Contra but overruled.-U. S. v. New York, etc., R. Co., 168 Fed. 699, 94 CCA 76; U. S. v. Atchison, etc., R. Co., 166 Fed. 160; New York Cent., etc., R. Co. v. U. S., 165 Fed. 833, 91 CCA 519; U. S. v. Öregon R., etc., Co., 163 Fed. 642; U. S. v. Southern Pac. R. Co., 162 Fed. 412 [aff 171 Fed. 360, 364, 96 CCA 252, 256]; U. S. v. Southern Pac. Co., 157 Fed. 459.

12. Baltimore, etc., R. Co. v. U. S., 220 U. S. 94, 31 SCt 368, 55 L. ed. 384 [mod and aff 159 Fed. 33, 86 CCA 223].

[a] Reason for rule. "Several expressions in the statute, and particularly the provision that, in estimating the period of lawful confinement, 'the time consumed in loading and unloading shall not be considered,' recognize that the proper loading or unloading of a number of animals may be treated as a single act, and there is nothing to indicate that it is to be treated as more than one act because the animals happen to belong to different persons. The loading of numerous cars might proceed concurrently; or if not discontinuous or unduly prolonged several cars of cattle of the same consignor might be loaded at the same time within the meaning of the act, in

by the statute is not material in determining the number of the penalties or the amount thereof, unless it is for another period of the length designated by the statute.13 It is not a defense that a carrier has instructed its employees to comply strictly with the Twenty-Eight-Hour Law, but such instructions have a bearing on the question of the amount of penalty which the court should impose.' Although there is no intentional violation of the statute, the carrier may be guilty of such negligence as to call for the imposition of more than the minimum penalty for a second violation.15

14

[§ 1005] b. State Legislation. State statutes exist imposing on carriers duties with respect to the care of live stock during transit." A statute of Texas provides that a common carrier which conveys live stock shall feed and water the same during the time of conveyance and until delivery to the consignee, unless otherwise provided by special contract, and imposes a penalty upon the carrier for violation of its provisions of not less than five dollars and not more than five hundred dollars, to be recovered by the owner of the live stock.1 Where a special contract is made, whereby the shipper undertakes to feed and water the stock, the fact that no reduction is made in the freight does not render the contract void for want of consideration and make the carrier liable for the penalty." The statute does not authorize the recovery of the penalty for failure or refusal to feed

17

and water the stock, where the shipper has contracted to do so, although it fails to furnish him with the facilities for so doing.19 Under the statute suit may be brought for less than the maximum penalty.20 In as much as the body of the act that creates the offense contains an exception relieving the carrier from liability to feed and water, if there is a special contract to that effect a petition in an action to recover the penalty must negative this exception.21 It is not necessary to allege that a demand that the stock be watered was made on any particular agent.22 In an action to recover the penalty, a written statement as to the condition of the stock, signed by the person who had charge of it on behalf of the owner, not being contractual in its nature, is important only as evidence and is not one to be considered by the court.23 An instruction which authorizes a recovery without a finding negativing the existence of a special contract exempting the carrier from the duty to feed is affirmatively erroneous."

24

In

which event the period of their law-fense. ful confinement, on the same train, would end at the same time and place. There would in this latter case be coincidence between the one shipment and the one offense. But in determining whether the number of penalties is always to be measured by the number of shipments on the same train, even when the animals were loaded at different times, it is to be remembered that the statute is general. It applies to the transportation of a trainload of cattle belonging to one owner; to the more usual case where animals belonging to one or more owners are loaded into different cars at different times, and also to those instances where one or a few horses or other animals are shipped and at a different time farther on during the journey other animals are loaded into the same car. These differences in shipments do not affect the duty of the carrier to the animals, but only the time when the duty to unload is to be performed. The number of consignors, the consent the owner or agent in charge of the particular shipment that the cattle might be confined for 36 hours, the number of bills of lading and the particulars of the shipment are immaterial, except as they serve to fix the limit of lawful confinement." Baltimore, etc., R. Co. v. U. S., 220 U. S. 94, 104, 31 SCt 368, 55 L. ed. 384 (per Lamar, J.).

or

of

[b] Rule applied.—(1) Where cars of cattle are loaded at nearly the same time, although at different points, are forwarded to the same destination, the consignor and the consignee are the same, and they are consolidated into one train and so received by a connecting carrier, the failure of such carrier to unload the same for rest, water, and feeding as required by the Twenty-EightHour Law of June 29, 1906 (34 U. S. St. at L. 607 c 3594 § 1), constitutes but one violation of the statute. U. S. v. New York Cent., etc., R. Co., 191 Fed. 938. (2) Where consignments of live stock were unloaded simultaneously, but were received by the carrier at different hours, the unlawful confinement of each consignment constituted a separate of

17.

18.

the requirement that existence of the special contract mentioned in the suit by way of exception be negatived. Houston, etc., R. Co. v. Brown, 37 Tex. Civ. A. 595, 85 SW 44.

22. Houston, etc., R. Co. v. Brown, 37 Tex. Civ. A. 595, 598, 85 SW 44 (where the court said: "All that was essential was that the railway company, or, as the plaintiff alleges, that the defendant water or cause the hogs to be watered").

23. Texas, etc., R. Co. v. Peters, 31 Tex. Civ. A. 6. 71 SW 70. 24.

Houston, etc., R. Co. v. Brown, 37 Tex. Civ. A. 595. 85 SW 44. 25. See statutory provisions. Efland v. Southern R. Co., 146 N. C. 135. 59 SE 355.

26.

common

Considerations leading to en[a] actment of statutes.-"This statute was enacted in pursuance of a well known public policy and to remedy a well known evil. It is knowledge that there are countless cases of shortage in freights and of overcharges, either by freight collected on such shortages or otherwise. Errors will happen and sometimes are well nigh unavoidable, but none the less, justice and sound policy require the prompt investigation of all claims, and prompt payment of those that are just. These sums aggregate very many thousands of dollars annually, but each amount usually is too small a sum to justify the expense of litigation. Unless the railroad companies will promptly investigate and refund in such cases the aggregate loss to the public is very great and the exasperation in the public mind, at the injustice, is greater still. The companies that either voluntarily, or in obedience to the law, investigate promptly and refund all claims for overcharges which are found to be just, within 60 days, suffer no inconvenience from this statute. Those who are so inconsiderate of just claims as not to adjust them within 60 days are proper subjects of the penalty and prove the necessity of this statute.' Cottrell v. Carolina. etc., R. Co.. 141 N. C. 383, 385. 54 SE 288 [quot Efland v. Southern R. Co., 146 N. C. 129, 133, 59 SE 3591.

27

yond the point to which they were consigned, as this amounts to an overcharge of freight, and also to a claim for an amount paid as freight on part of a shipment which was short and not delivered.28 28. On the other hand, the mere fact that the carrier charges a higher rate for carrying freight in one direction than it does for carrying freight of the same class in the opposite direction does not necessarily constitute an overcharge.29

Interstate shipments. In as much as congress has taken entire control of the question of rates for interstate transportation, and especially of the matter of excessive charges, or those not corresponding with the rates authorized, filed, and published, a state statute imposing a penalty on the carrier for refusing to refund an overcharge is, as far as interstate shipments are concerned, unconstitutional and void, as an interference with interstate commerce. 30

[ 1007] 19. Penalties Imposed on Shipper or

Consignee. Under a statute which provides that the party to whom cars are consigned shall unload the same within a specified time after delivery and notice, or forfeit to the railway company a certain sum per day for each car so left unloaded, the consignor is not liable for failure to see that the cars are unloaded at their destination; the remedy is against the consignee.31 Under a similar statute imposing a penalty on an applicant for cars who fails to load them within a specified time after they are furnished by the carrier, only one penalty can be collected for each car not loaded within the time limit after it is placed for loading.32 A statute imposing on a shipper a penalty for presenting a fraudulent claim for damages against the common carrier is not unconstitutional as class legislation, as denying the shipper the equal protection of the law, or as operating to take from him his property without due process of law.

33

35

[ 1009] B. Failure to File Rates.36 The Interstate Commerce Act requires the filing of schedules of interstate railroads with the interstate commerce commission and makes willful failure to comply therewith a misdemeanor punishable in any federal court having jurisdiction of crimes within the district within which the offense was committed.37 The offense of failing to file a schedule with the commission is committed in Washington, where the commission has its office, and must be prosecuted there.38 The rates which the carrier is required to file and publish are not alone those under which transportation has actually taken place, but those which the carrier has established as its present charges, as distinguished from those which are obsolete and tentative, or perhaps only to take effect

27. Wichman V. Atlantic Coast Line R. Co., 100 S. C. 138, 84 SE 420. 28. Cottrell v. Carolina, etc., R. Co.. 141 N. C. 383, 54 SE 288.

29. Scull v. Atlantic Coast Line R. Co., 144 N. C. 180, 182, 56 SE 876 (where the court said: "There may be and frequently are facts and conditions which affect the rate in one direction which do not exist and have no bearing or just influence on the rate in the opposite direction").

What constitutes overcharge see generally supra §§ 711, 1006.

30. Blalock Hardware Co. v. Seaboard Air Line R. Co., 170 N. C. 395, 86 SE 1025: Pinkussohn Cigar Co. v. Clyde SS. Co.. 101 S. C. 429, 85 SE 1060. See also supra § 944.

31. Houston, etc.. R. Co. v. Campbell, 91 Tex. 551, 45 SW 2, 43 LRA 225 [rev (Civ. A.) 40 SW 431].

32. Gulf. etc., R. Co. v. Werner Stave Co., 62 Tex. Civ. A. 284, 131 SW 658.

33. Riskin v. Great Northern R. Co., 126 Minn. 138, 147 NW 960, Ann Cas1915D 823 and note.

34. Offenses against navigation laws see Shipping [36 Cyc 24].

35. See statutory provisions. And

see infra §§ 1009-1032.

in the future; they are the rates open to public inspection and on which shipments may be made, if offered.39 An entirely intra-state railroad which is part of a joint through route over which interstate commerce is transported is subject to the provisions of the act.40

41

[ 1010] C. Transportation of Interstate Commerce without Filing Tariff. By the provision of the Interstate Commerce Act, transportation of interstate commerce by a carrier which has not filed its rate for such service is a misdemeanor.* Prosecution for the violation of this statute may be brought in any district through which the transportation passes.*

43

[§ 1011] D. Charging Rates Different from Those Fixed by Schedule-1. Prosecutions Based on Section 6 of the Interstate Commerce Act. This section, among other provisions, provides that, when a carrier shall have established and published its rates or fares it shall be unlawful for it to charge, or receive from, any person for the transportation of passengers or property, or for any services in connection therewith, a greater or a less compensation than that which is specified in such published schedule of rates or fares as may at the time be in

that

[10 C.J.-38]

ment under a joint tariff. U. S. v. New York Cent., etc.. R. Co., 153 Fed. 630 [rev on other grounds 166 Fed. 267. 92 CCA 331].

41. Int. Com. Act (24 U. S. St. at L. 379 c 104), as amended by Act June 29, 1906 (34 U. S. St. at L. 584 C 3591).

42. U. S. v. Illinois Terminal R. Co.. 168 Fed. 546 (where the court said: "Effective railroad regulation must begin with publicity of rates. The penalty for failure on the part of any carrier subject to the act to regulate commerce (Act Feb. 4, 1887, c. 104, 24 St. 379 [U. S. Comp. St. 1901, p. 3154]) to publish and file its rates is as severe as the penalty for failure to strictly observe such rates after filing"); New York Cent.. etc., R. Co. v. U. S., 166 Fed. 267, 92 CCA 331.

[a] "Prior to the act of June 29, 1906, such a prosecution as this could not have been maintained. Before that time the act made failure to file rates with the commission at Washington an offense, but did not provide that transportation without filing rates should also be an offense. U. S. v. Illinois Terminal R. Co., 168 Fed. 546, 548.

43. U. S. v. Illinois Terminal Co., 168 Fed. 546; New York Cent, etc.. R. Co. v. U. S., 166 Fed. 267, 92 CCA 331.

49

47

force. This provision applies solely to transportation privileges and facilities, and not to such privileges as may be extended to a consignee after the shipment has reached its destination." This statute, however, is violated where a railroad company, while ostensibly charging the rate fixed by the schedule, gives the shipper a rebate.46 Subordinate agents who act in the illegal transaction are not criminally liable, in the absence of notice that the carrier is violating the statute.* A joint stock association organized under state laws to do an express business is subject to criminal prosecution under this section.48 The indictment need not allege the day or days when the shipments were made, nor allege that defendants, when the shipments were made, intended to charge less than the schedule rate.50 An allegation that an established rate was in force on the day on which the unlawful charge was alleged to have been made obviates the necessity of alleging, in express terms, that no reduction in the established rates had taken place.51 The statute by its terms applies to any common carrier who is a party to any joint tariff, and prohibits departures from the joint rates specified in the filed schedules.52 A receiver, not being bound to continue contracts made before his appointment, is not criminally liable for the violation of a joint tariff previously established by the railroad company of which he is receiver and another company, and which he has not ratified, adopted, or recognized in any way." 53 An indictment must show that a joint tariff has been established; but a specific charge that all the connecting carriers concurred in the joint rate, or that it was filed with the interstate commerce commission by their joint action, is not essential to the validity of the indictment.55 The burden is on the prosecutor to show a common arrangement for a continuous carriage between the points mentioned in the filed joint tariff.5

54

[§ 1012] 2. Prosecutions Based on the Elkins

44.

See statutory provision. 45. U. S. v. Erie R. Co., 209 Fed. 283. 46. U. S. v. Michigan Cent. Co., 43 Fed. 26.

R.

47. U. S. v. Michigan Cent. R. Co., 43 Fed. 26.

[a] Rule applied.-Where an arrangement in violation of the statute was made by the assistant general freight agent, the fact that the local freight agent, and the agent who made out the bills of lading, knew that there was something unusual and out of the ordinary course of business in such shipments is not sufficient notice to them that the company was violating said act, to make them criminally liable therefor. U. S. v. Michigan Cent. R. Co., 43 Fed. 26.

48. U. S. v. Adams Express Co., 229 U. S. 381, 33 SCt 878, 57 L. ed. 1237.

and Hepburn Amendments.57 The Elkins and Hepburn amendments of the Interstate Commerce Act both contain provisions that the willful failure on the part of any carrier subject to the Interstate Commerce Act strictly to observe the tariffs or rates filed and published as required by that act shall constitute a misdemeanor, and that, whenever any carrier files with the interstate commerce commission, or publishes a particular rate under the provisions of the Interstate Commerce Act or acts amendatory thereto, or participates in any rates so filed and published, that rate, as against such a carriers, its officers or agents, in any prosecution begun under the act, shall be conclusively deemed to be the legal rate, and any departure or offer to depart therefrom shall be deemed to be an offense.58 The purpose of these provisions is to require that all shippers be treated alike, and that the only rate charged for the same services, under the same conditions, shall be the one established, published, and posted as required by law.59 The purpose is also to prohibit departure from the tariff rates irrespective of the actual discriminative effect of the departure." While carrying at less or different rates than the tariff rate is not in terms declared an offense or penalized, it is punishable as a failure to strictly observe the statute.61 To make rates valid, so that a departure from them by the carrier will constitute an offense, it is necessary that they should be published. The departure from the established and published rate must be willful.63 But it has been held that the charging of a rate less than the filed rate constitutes a violation of the statute as matter of law. The willful demand of more than the tariff rates is of equal criminality with an actual collection thereof.65 There is a willful failure strictly to observe the rates filed where the carrier accepts the shipper's note for a part of its freight charges, or gives per a discriminative credit, a particular ship

60

a

66

62

64

or where the carrier

v. U. S., 212 U. S. 481, 29 SCt 304, 53 L. ed. 613; Chicago, etc., R. Co. v. U. S., 209 U. S. 90, 28 SCt 439, 52 L. ed. 698; Armour Packing Co. v. U. S., 209 U. S. 56, 28 SCt 428, 52 L. ed. 681; New York, etc., R. Co. v. Interstate Commerce Commn., 200 U. S. 361, 26 SCt 272, 50 L. ed. 515. 60. Vandalia R. Co. v. U. S., 226 Fed. 713, 141 CCA 469.

61. Hocking Valley R. Co. v. U. S., 210 Fed. 735, 127 CCA 285.

62. U. S. v. Indiana Standard Oil 170 Fed. 988.

63. Atchison, etc., R. Co. v. U. S., 170 Fed. 250, 95 CCA 446.

51. U. S. v. Tozer, 37 Fed. 635, 2 LRA 444.

52. 24 U. S. St. at L. 380 c 104

§ 6.

153 Fed. 625.

etc.,

64. U. S. V. Merchants', Transp. Co., 187 Fed. 363. 65. U. S. v. Texas, etc., R. Co., 185 Fed. 820.

66. U. S. v. Sunday Creek Co., 194 Fed. 252, 254 (where it was said: "Receiving payment by note is receiving a 'different compensation' from that which only the law authorizes, namely, money").

67. Hocking Valley R. Co. v. U. S., 210 Fed. 735, 127 CCA 285 (holding that the giving of several months' credit for the payment of freight charges to one shipper pursuant to a contract undertaking the shipment while other shippers under the same circumstances were required to settle promptly at the end of each calendar month for freight shipped during that month, and to give bond that the freight charges would be paid, constituted a crimination in respect of transportation within the Elkins Act, although legal interest was paid by the shipper receiving the credit). But see supra § 772.

dis