49 Indictment.4 Inasmuch as the object of the statute is to make the act of rebating one of the corporation as well as of the agent, and to include both within the provisions and restrictions of the statute, the corporation and its agents may be prosecuted for the same offense in one indictment.50 An indictment charging a railroad company with the granting of a concession to a shipper must specifically set forth the nature, and, if possible, the amount of the concession, and point out what particular tariff charges the railroad company violated and failed to observe in making the concession.51 The indictment need not allege the methods or devices resorted to to avoid the law, as the device constitutes no part of the offense; 52 nor is it necessary to allege a prior agreement for a rebate, it being sufficient to allege that defendant received the legal rate and paid the shipper a certain rebate.53 The indictment need not allege the name of the agent by whom the of defense.58 A charge that a carrier's codefendant as its agent granted an unlawful concession does not amount to a charge that the carrier granted the concession through that agent so that it cannot be convicted if the agent is acquitted.59 60 Pleading and proof. It is not necessary to prove the exact amount charged to have been given as rebates, as the precise means alleged are not of the essence of the offense; it is sufficient if substantial amounts are proved. Where a carrier is charged with rebating in applying transit rates to certain so-called outbound local shipments, evidence of the carrier's acts concerning inbound shipments disclosing a scheme calculated to conceal and carry out the offense charged in the indictment is admissible.61 Where the indictment contains a number of counts, each charging the granting of a concession consisting in failure to collect the demurrage charge fixed by its published schedule of rates on a single carload shipment, it will be supported as to any one count by proof that at a single settlement between defendant and the shipper after all the shipments charged had been made defendant made a concession to the demurrage charges on all of the cars. Evidence tending to show lack of intent to grant a concession to a shipper is admissible.63 62 Instructions. The statement of the court after setting out the language of the act and discussing the allegations as to a device and the intention of the parties, to the effect that the indictment concluded with a charge that defendant through the device named unlawfully gave a rebate to a named shipper in the transportation of property in interstate commerce, was not objectionable as allowing CCA 211 [aff 151 Fed. 84, and cer- bating in applying transit rates to | etc.. R. Co. v. U. S., 162 Fed. 835, 90 court 49. [a] Form of indictment.U. S. v. New York Cent., etc., R. Co., 146 Fed. 298 [aff 212 U. S. 481, 29 SCt 304, 53 L. ed. 613, and aff 212 U. S. 500, 29 SCt 309, 53 L. ed. 624]. 50. New York Cent., etc.. R. Co. v. U. S., 212 U. S. 481, 29 SCt 304, 53 L. ed. 613; U. S. v. New York Cent., etc., R. Co., 146 Fed. 298 [aff 212 U. S. 481, 29 SCt 304, 53 L. ed. 613, and aff 212 U. S. 500, 29 SCt 309, 53 L. ed. 3241 (both decided under Elkins Act). 51. U. S. v. Philadelphia, etc., R. Co., 184 Fed. 543 [aff 188 Fed. 879. 110 CCA 513] (construing Elkins Act). 52. Grand Rapids, etc.. R. Co. v. U. S., 212 Fed. 577, 129 CCA 113 (construing Hepburn Act); Chicago, 53. U. S. v. Chicago, etc., R. Co., 151 Fed. 81 [aff 162 Fed. 835, 90 CCA 211, certiorari den 212 U. S. 579, 29 SCt 689, 53 L. ed. 659] (construing Elkins Act). 54. U. S. v. Erie R. Co., 222 Fed. 441 (construing Hepburn Act, and where it was said that a company's knowledge is the sum of the knowledge of all its agents, although the transection is executed by only one of them). 55. U. S. v. Delaware, etc.. R. Co., 152 Fed. 269 (where it was said, however, that, if the prosecution was brought under the Пenburn amendment, it would be necessary to allege that the rebates were given "knowingly"). [a] Indictment held sufficient as to averment of intent.--An indictment against a railroad company and the agent of certain shippers alleging that full schedule rates were paid first by the railroad company for the transportation of certain freight, and that thereafter nine hundred and twenty dollars and thirty-nine cents were paid to the shipper's agent by way of rebates and concessions in respect to the transportation of freight under a previously made unlawful agreement. sufficiently charged that the payment of the rebate was a willful failure to observe the published tariff, and therefore stated a violation of the Elkins Act. U. S. v. New York Cent., etc., R. Co., 146 Fed. 298 [aff 212 U. S. 481, 29 SCt 304, 53 L. ed. 613, and aff 212 U. S. 500, 29 SCt 309, 53 L. ed. 624]. 56. Chicago, etc., R. Co. v. U. S., 157 Fed. 830, 85 CCA 194 [aff 209 U. S. 90, 28 SCt 439, 52 L. ed. 698] (construing Elkins Act). 57. Atchison, etc., R. Co. v. U. S., 170 Fed. 250, 95 CCA 446 (construing Elkins Act). 58. U. S. v. Chicago, etc., R. Co., 151 Fed. 84 [aff 162 Fed. 835, 90 CCA 211, and certiorari den 212 U. S. 579, 29 SCt 689. 53 L. ed. 6591 (construing Elkins Act). 59. U. S. v. Eric R. Co., 222 Fed. 444 (construing Hepburn Act). 60. Grand Rapids, etc., R. Co. v. T. S.. 212 Fed. 577, 129 CCA 113 (construing Hepburn Act). 61. Grand Rapids, etc., R. Co. v. U. S., 212 Fed. 577, 582, 129 CCA 113 (where the court said: "The natural tendency of the facts concerning the inbound shipments and the transit rates and charges was to disclose a scheme that is calculated alike to conceal and carry out everything charged in the indictment-to disclose the means used to accomplish the end in view; and, since these means entered into and formed a vital part of the outbound transactions, we are unable to see why the proofs were not admissible. The execution of such a method clearly operated to transport the outbound lumber at less rates than those named in the local tariffs 'published and filed' by defendant"). 62. U. S. v. Philadelphia, etc., R. Co., 184 Fed. 543 [aff 188 Fed. 879, 110 CCA 513] (construing Elkins Act). 63. Atchison, etc.. R. Co. v. U. S.. 170 Fed. 250, 95 CCA 446 (holding that, where in a prosecution against a carrier for alleged rebating on shipments of bulk lime it was shown that the regular published rate was three dollars and fifty cents per ton, forty thousand pounds minimum, Province of court and jury. Where failure to observe published tariff rates with regard to demurrage charges is alleged, the questions whether defendant had made a settlement with the shipper as to such demurrage, and whether, if so, the cancellation of the charges was a valid settlement of a disputed claim or for the purpose of making a concession in violation of the statute, are questions of fact for the jury.65 [1018] G. Pooling. Where a carrier is a corporation, not only the carrier itself, but the officers individually, are subject to indictment for violation of that section of the Interstate Commerce Act66 which provides that it shall be unlawful for any common carrier, subject to a provision of the act, to enter into a contract, agreement, or combination with any other common carrier or carriers for the pooling of freights of different competing railroads, or to divide between them the aggregate or net proceeds of the earnings of such railroads or any portion thereof.67 [§ 1019] H. Delay in Transportation. A rule of state railroad commissioners relating to the time of forwarding freight applies only to intra-state shipments and a fine on account of an interstate shipment cannot be imposed on a carrier by virtue of such rule.68 [§ 1020] I. Embezzlement. Statutes specially applicable to embezzlement by carriers have been enacted.69 [§ 1021] J. Violation of Quarantine Laws. A receiver operating a railroad is subject to the penal provisions of a statute prohibiting any common carrier from transporting live stock by rail from a quarantined district into another state." 70 [ 1022] K. Transportation of Game in Violation of Statutes. Statutes for the protection of game exist, making it an offense for a carrier to receive game for transportation in violation of the provisions of such statute.71 [ 1023] L. Violation of Twenty-Eight-Hour Law.72 Subject to some provisos the federal statutes make it an offense punishable by fine for a carrier to keep live stock confined in a car for more than twenty-eight hours without unloading for rest, water, and feeding.73 [§ 1024] M. Operation of Freight Trains on Sunday. Statutes exist in many jurisdictions regulating the running of trains on Sunday." XXVIII. OFFENSES BY PERSONS DEALING WITH CARRIERS [§ 1025] A. Introductory Statement. Statutes have been enacted by congress and by many of the states making acts therein enumerated committed by shippers or other persons dealing with common carriers, as such, criminal offenses.75 79 violating these provisions will be guilty of a mis- [§ 1026] B. Violations of Elkins Act-1. Introductory Statement. The Elkins Act provides that it shall be unlawful for any person or corporation to solicit, accept, or receive any rebate, concession, or discrimination in respect to the transportation of any property in interstate or foreign commerce, whereby such property shall, by any device whatever, be transported at a less rate than that named in the tariffs published and filed by the carrier and declares that any person or corporation that the value of the lime was three | sented, by the terms of the check, dollars and fifty cents per ton at the point of shipment, and that the carrier had accepted in settlement sums varying from thirty-five cents to fourteen dollars and thirty-five cents per car less than such established rate, evidence that the shipper had claimed that each of the cars had been loaded with at least the minimum amount, but that various amounts had been lost in transit, and that the carrier had not exacted freight on the amount so lost is admissible as showing absence of the carrier's intent to grant a concession from the established freight rate). 64. Vandalia R. Co. v. U. S., 226 Fed. 713, 141 CCA 469 (construing Hepburn Act). 65. U. S. v. Philadelphia. etc., R. Co., 184 Fed. 543 [aff 188 Fed. 879. 110 CCA 513] (construing Elkins Act). 24 U. S. St. at L. 380 c 104 66. § 5. 68. Atchison, etc., R. Co. v. State, 33 Okl. 158, 124 P 56. See also supra §§ 971-977. 69. See statutory provisions. [a] New York statute.-Where an advance was made by shippers to a carrier on account of freight, by check, indorsed to the order of a third person at the carrier's request. to enable it to pay a debt to such third person, and such check was delivered by the carrier to such third person, the person making the advance must be deemed to have as that such third person, and not the 70. U. S. v. Nixon. 235 U. S. 231, Quarantine laws as affecting interstate commerce see Commerce [7 Cyc 469]. 71. See statutory provisions; and Game [19 Cyc 1016]. Game laws as regulations of interstate commerce see Commerce [7 Cyc 4331. 72. Liability for penalties see su- 73. 34 U. S. St. at L. 607 c 3594. statute defendant, a terminal rail- See 75. See statutory provisions; and infra §§ 1026-1031. 76. Act Febr. 19, 1903 (32 U. S. St. at L. 847 c 708). U. S. v. Bunch. 165 Fed. 736. 77. 78. 79. See infra § 1028. 80. See infra § 1029. 81. U. S. v. Merchants' Transp., etc.. Co., 187 Fed. 363. "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." Armour Packing Co. v. U. S., 209 U. S. 56, 72, 28 SCt 428, 52 L. ed. 681. 99852 86 What constitutes offense. To make rates valid, so that the acceptance of a concession from them by the shipper shall constitute an offense, it is necessary that they shall have been "published,' '85 but not that they shall have been "posted. The offense is not complete until the shipper has received a rate different from the established rate. A mere agreement on the part of the shipper to accept the concession is not an offense under the statute.87 The shipper cannot be convicted of accepting a concession from the lawful published rate without proof of knowledge of what such rate in fact was. 88 But shippers who pay a reduced rate with full knowledge of the published rate are guilty of the offense of accepting a concession, although, under a mistaken view of the law, they believed that they had the right to do so.59 It is not essential that the shipper should have solicited the concession which the carrier gave.90 The statute is violated where, after the carrier has duly estab 82. 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. 83. Armour Packing Co. v. U. S., 153 Fed. 1, 5, 82 CCA 135, 14 LRANS 400 [aff 209 U. S. 56, 28 SCt 428, 52 L. ed. 681] (where the court said: "A continuing offense is a continuous, unlawful act or series of acts set on foot by a single impulse and operated by an unintermittent force, however long it may occupy. Where such an act or series of acts runs through several jurisdictions, the offense is committed and cognizable in each"). 84. Rebating see supra §§ 791-794. [a] Concession and rebate distinguished.-"The concession differs from the rebate only in this, that in the concession the shipper, instead of paying the full rate and receiving back part, merely settles for the difference. The result is the same-the property is transported for the same net amount less than the lawful rate." Indiana Standard Oil Co. v. U. S., 164 Fed. 376, 386, 90 CCA 364 [certiorari den 212 U. S. 579, 29 SCt 689, 53 L. ed. 659]. 85. U. S. v. Miller, 187 Fed. 375 [rev on other grounds 223 U. S. 599, 32 SCt 323, 56 L. ed. 568]: U. S. v. Indiana Standard Oil Co., 170 Fed. 588. 85%. U. S. v. Miller, 223 U. S. 599, 32 SCt 323. [a] "Publication and posting in the sense of the act are essentially distinct. This is the import of the provision that the requirements relating to publishing, posting, and filing may be modified by the Commission in special circumstances, for if publishing included posting, mention of the latter was unnecessary. And from all the provisions on the subject it is evident that the publication intended consists in promulgating and distributing the tariff in printed form, preparatory to putting it into effect, while the posting is a continuing act enjoined upon the carrier, while the tariff remains operative, as a means of affording special facilities to the public for ascertaining the rates in force thereunder. In other words, publication is a step in establishing rates, while lished a higher rate, the shipper secures such transportation at the rate agreed on in a prior contract with the carrier, which was the legal, published, and filed rate when the contract was made, since the statute, being then in force, is read into such contract and becomes a part of it.91 The fact that a concession from the published and filed through rate on an interstate shipment over the lines of connecting carriers was given entirely by the initial carrier for transportation over its own line wholly within one state does not relieve the shipper receiving such concession from liability to prosecution therefor.92 Indictment. An indictment charging shippers with receiving a concession and accepting transportation of freight at a rate less than that filed is not fatally defective, if it fails to charge that the higher rate so filed had been "posted" as required by statute.93 But an indictment for this offense is sufficient where it charges each and all of the elements of the offense with the allegations of time, place, kind of goods, and name of carrier, averring the fixing of the published rate, the changing of the rate, and the new publication, the shipper's knowledge of this change, and the carriage of the goods over a described route at a concession of the difference between the two rates.94 The indictment need not allege the actual payment of the unlawful lower rate, this being a matter of proof.95 If it is averred posting is a duty arising out of the fact that they have been established. Obviously, therefore, posting is not a condition to making a tariff legally operative. Neither is it a condition to the continued existence of a tariff once legally established. If it were, the inadvertent or mischievous destruction or removal of one of the posted copies from a depot would disestablish or suspend the rates, -a result which evidently is not intended by the act, for it provides that rates once lawfully established shall not be changed otherwise than in the mode prescribed." U. S. V. Miller, 223 U. S. 599, 32 SCt 323, 325. 86. Indiana Standard Oil Co. v. U. S., 164 Fed. 376, 90 CCA 364 [rev 155 Fed. 305, and certiorari den 212 U. S. 579, 29 SCt 689, 53 L. ed. 659]. 87. Indiana Standard Oil Co. V. U. S., 164 Fed. 376, 386, 90 CCA 364 [certiorari den 212 U. S. 579, 29 SCt 689, 53 L. ed. 659] (where the court said: "There is no basis in the statute for holding that in the case of accepting a concession the transaction is consummated, and the door of repentance is closed, at any earlier moment than in the case of accepting a rebate. So proof that a shipper has agreed to accept a concession-stopping there--whether the proof be embodied in way bills, or book entries, or formal contracts, will not support an indictment for accepting a concession, until the intended wrong becomes an accomplished fact. Of course the irrevocable may be reached and the transaction consummated in other ways than by money settlements, as by the offsetting of mutual accounts. The point is that the transaction, as a transaction, must be consum mated"). 88. Indiana Standard Oil Co. v. U. S., 164 Fed. 376, 382, 90 CCA 364 [rev 155 Fed. 305, and certiorari den 212 U. S. 579, 29 SCt 689, 53 L. ed. 6591 (holding that, in consequence, evidence that the shipper had no knowledge of the published rate, and could have ascertained the same only by the construction of several tariff sheets, the application of which was questionable, was admissible; and it was said in this case: "Surely the farmer who brings his produce to town to be shipped to the city markets, or the small merchant shipping to the country, or the householder who ships his furniture, when changing his residence, were not meant by the interstate commerce law to be guilty of having accepted a concession, merely because they took the word of the carrier or his agent, as to what the rate was, accepting such rate stated, in the honest belief that it was in fact the regularly esablished rate"). 89. Armour Packing Co. v. U. S., 209 U. S. 56, 28 SCt 428, 52 L. ed. 681 (where it was said that under these circumstances, all the knowledge and guilty intent that the act requires exist). See also Chicago, etc.. R. Co. v. U. S.. 209 U. S. 90, 28 SCt 429, 52 L. ed. 698 [foll Armour Packing Co. v. U. S., 209 U. S. 56, 28 SCt 428, 52 L. ed. 681]. 90. U. S. v. Vacuum Oil Co., 153 Fed. 598 (where it was said that the statute is violated if he has accepted and received any concession which resulted in the carrying of the freight at a rate less than that established under the act). 91. Chicago, etc., R. Co. v. U. S., 209 U. S. 90, 28 SCt 439, 52 L. ed. 698 [aff 157 Fed. 830, 85 CCA 194]; Armour Packing Co. v. U. S., 209 U. S. 56, 82, 28 SCt 428, 52 L. ed. 681 [aff 153 Fed. 1, 82 CCA 135, 14 LRANS 400] (where the court said: "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"). 92. U. S. v. Vacuum Oil Co., 158 Fed. 536. 93. U. S. v. Miller, 223 U. S. 599, 32 SCt 323 [rev 187 Fed. 375]. See also supra text and note 85%. 94. Chicago, etc., R. Co. v. U. S., 209 U. S. 90, 28 SCt 439, 52 L. ed. 698 [aff 157 Fed. 830, 85 CCA 194]: Armour Packing Co. v. U. S., 209 Ú. S. 56, 28 SCt 428, 52 L. ed. 681 [aff 153 Fed. 1, 82 CCA 135, 14 LRANS 400]. 95. New York Standard Oil Co. v. U. S., 179 Fed. 614, 103 CCA 172. Number of offenses. Where defendant made different shipments of goods in interstate commerce at concession rates, delivered throughout the year, the bills being marked prepaid, and settlements being made at a rate lower than that published, at various intervals, all shipments contained in one freight settlement between the parties did not constitute a single offense; but, notwithstanding a settlement was essential to make out the offense of receiving concession rates, on such settlement being consummated, there were as many offenses committed as there were distinct shipments, transportations, or transactions.99 Amount of fine. The imposition of a fine so large that its effect would be to bankrupt defendant is an abuse of discretion and cannot be sustained.1 [1028] 3. Accepting Rebates. The purpose of the Elkins Act and its subsequent amendments was to secure uniform freight rates to all shippers, and its provisions are violated by receiving any rebate or concession, whereby any property shall be transported at a less rate by any interstate carrier than that named in the tariffs published and filed by the carrier whether by direct agreement between 96. U. S. v. Vacuum Oil Co., 158 Fed. 536. 97. U. S. v. Vacuum Oil Co., 158 Fed. 536; U. S. v. Standard Oil Co., 155 Fed. 305 [rev on other grounds 164 Fed. 376, 90 CCA 364, certiorari den 212 U. S. 579, 29 SCt 689, 53 L. ed. 659]. the shipper and the carrier or indirectly by any device whatever.2 The offense is complete when the carrier to whom the shipper has paid the full rate returns to the shipper, on his demand, the amount of rebate fixed in the shipping contract.3 To make rates valid, so that an acceptance of a rebate from them by a shipper shall constitute an offense, it is essential that the rates should be published. But where a railroad company has published and filed a schedule of rates on interstate shipments to points beyond its own line, the section applies to such rates equally with those between points on its own line; and the failure to post rates by an interstate carrier will not relieve a shipper from the penalty for accepting rebates. To come within the prohibition of the statute, a device to obtain rebates need not necessarily be of a fraudulent character; the term "device" includes anything which is a plan or contrivance.' The substance of the offense is not the device, but the receipt of the rebate and the transportation thereby effected. A rebate or concession from a part of a single rate, whereby property is transported thereunder at a rate less than the established rate, is a concession from the entire rate and renders all transportation thereunder illegal. Shipments in interstate commerce to a transit point where the goods were consumed, and in another instance reshipment from the transit point to another city in the same state, do not justify the application of lower transit rates, and hence the application thereof constituted rebating.10 Where an interstate railroad company applied lower transit rates to shipments which were entitled only to local rates, the shipper's agents would be presumed to have knowledge of the rate applicable, which attention to the holding in the sec- Oil Co., 158 Fed. 536. Compare U. S. 98. U. S. v. Indiana Standard Oil Co., 183 Fed. 223 (holding that charging that defendant received concessions from the established through rate on shipments from Evansville, Ind., to Birmingham, Ala., via Grand Junction, Tenn., is not sustained by proof that shipments were made by defendant from Whiting, Ind., via Evansville to Grand Junction, for beyond, at the lawfully filed and published rate which was prepaid, and were for-ally committed"); U. S. v. Vacuum warded from there to Birmingham on orders from the consignee, which paid the freight, although the cost of the transportation from Evansville to Birmingham was less than the established through rate between such points); U. S. v. Indiana Standard Oil Co., 170 Fed. 988 (holding that in an indictment charging a shipper with having received a concession in violation of the Elkins Act, whereby oil was transported for it in interstate commerce at a rate less than that named in the tariffs published and filed by the railroad company, an averment that such company established, published, and filed a rate on oil, between Chicago, Ill., and St. Louis, Mo., of nineteen and one-half cents per hundred pounds is not sustained by proof that its schedules named only the rate over its own line from Chicago to East St. Louis, at eighteen cents, and that the tariff on connecting lines between East St. Louis and St. Louis was one and one-half cents). 99. U. S. v. Standard Oil Co., 192 Fed. 438, 442 [dist U. S. v. Standard Oil Co., 170 Fed. 448] (where the court said: "The defendant directs prosecution against a shipper for 1. Indiana Standard Oil Co. V. 2. U. S. v. Standard Oil Co., 148 Fed. 719. 3. Central of Georgia R. Co. v. Curtis, 14 Ga. A. 716, 82 SE 318. 4. U. S. v. Indiana Standard Oil Co., 170 Fed. 988: Camden Iron Works v. U. S., 158 Fed. 561, 85 CCA 585; U. S. v. Wood, 145 Fed. 405, 409 (where the court said: "It may be unlawful for a carrier to give a re bate, concession, or discrimination on a joint tariff filed by it, or on a joint tariff published by it, or on a joint tariff in which it participated when filed by another, or on a joint tariff in which it participated when published by another, but it is only unlawful for a shipper to receive a rebate on a joint tariff which is both filed and published"). 5. U. S. v. Standard Oil Co., 148 Fed. 719. 6. U. S. v. Miller, 223 U. S. 599, 32 SCt 323, 56 L. ed. 568; Nichols, etc., Lumber Co. v. U. S., 212 Fed. 588, 129 CCA 124. 7. Chicago, etc., R. Co. v. U. S., 209 U. S. 90, 28 SCt 439, 52 L. ed. 698 [aff 157 Fed. 830, 85 CCA 194]; Armour Packing Co. v. U. S., 209 U. S. 56, 28 SCt 428, 52 L. ed. 681 [aff 153 Fed. 1, 82 CCA 135, 14 LRA NS 4001. clause by any device whatever," as found [a] The meaning of the a in the statute, is directly or indirectly, in any way whatever. Armour Packing Co. v. U. S., 153 Fed. 1, 16, 82 CCA 135, 14 LRANS 400 [aff 209 U. S. 56, 28 SCt 428, 52 L. ed. 681]. [b] Thus, it is unlawful for corporation organized to control the interstate transportation of a brewing company to demand and receive, as a consideration for the routing of the brewing company's products over certain lines of railroad, a concession equal to one eighth or one tenth of the published freight rates. U. S. V. Milwaukee Refrigerator Transit Co., 145 Fed. 1007. 8. Armour Packing Co. v. U. S.. 153 Fed. 1. 82 CCA 135, 14 LRANS 400 [aff 209 U. S. 56, 28 SCt 428, 52 L. ed. 681]. 9. Armour Packing Co. v. U. S., 153 Fed. 1, 82 CCA 135, 14 LRANS 400 [aff 209 U. S. 56, 28 SCt 428, 52 L. ed. 681]. 10. Nichols, etc., Lumber Co. V. U. S., 212 Fed. 588, 129 CCA 124. knowledge was imputable to the shipper. Where a special tariff promulgated by a railroad company making a rate to a point on the line of another road, although filed with the interstate commerce commission, was not a joint tariff fixing a joint rate, a joint rate subsequently made by the two roads and duly filed with the interstate commerce commission superseded the rate previously promulgated, the rule that a rate once lawfully published continues to be the lawful rate until it has been lawfully canceled, and that a subsequent tariff naming other rates, without canceling the previous rates, cannot carry the new rates into lawful effect, having no application; and the use and acceptance of the old rate by shippers after the filing of the new rate, and after the passage of the Elkins Act, was unlawful, as constituting a rebate.12 To warrant a conviction of the shipper for accepting rebates, the tender of payment of such rebate, by or on behalf of the carrier, and its receipt by or on behalf of the shipper, must be proved.13 It is not a defense that one who contracted for and received a rebate personally received no benefit therefrom, but turned the rebate over without consideration to another;14 or that a contract existed between the carrier and the shipper to transport the latter's goods at the then established rates within a definite time;15 or that the rate filed was not intended to apply to shipments originating at certain points, when no other different rate was provided on shipments from such points.16 The consignee, as well as the consignor, is chargeable with a violation of the statute by receiving rebates or concessions from the published tariffs of an interstate carrier through the cancellation of terminal charges at the point of destination, which charges form a part of the tariffs as so published.17 Under the Elkins Act which provides that it shall be lawful to include as parties, in addition to the carrier, all persons interested in, or affected by, the rate regulation or practice under consideration, a refrigerator company, organized for the purpose of conducting the interstate transportation of a brewing company, having entered into a contract for rebates with certain railroads, is "a party interested in the traffic," and as such subject to the provisions of the statute.18 The mere fact that defendant was a stockholder in a corporation which accepted rebates in violation of law does not render him subject to the penalty imposed by the statute.19 Indictment. Since the device by which a rebate is brought about is not an essential element of the offense denounced by the Elkins Act, it is unnecessary to plead it in the indictment.20 The indictment need not allege that the carrier's published 11. Nichols, etc., Lumber Co. v. U. S., 212 Fed. 588, 129 CCA 124. 12. Waters-Pierce Oil Co. v. U. S., 222 Fed. 69, 137 CCA 293. 13. U. S. v. Bunch, 165 Fed. 736. See U. S. v. Milwaukee Refrigerator Transit Co., 145 Fed. 1007 (where the facts were held insufficient to show the receipt of rebates). 14. U. S. v. Wood. 145 Fed. 405. 15. Armour Packing Co. v. U. S.. 153 Fed. 1, 82 CCA 135, 14 LRANS 400 [aff 209 U. S. 56, 28 SCt,428, 52 L. ed. 681]. rate was a reasonable rate nor set out its tariffs in full; it is sufficient to aver that a certain named rate was in force between designated points as shown by the published tariffs.21 Nor is it necessary to name any other shipper who was required to pay a different rate, as is the case where discrimination is charged.22 An indictment charging the shipper with having received a rebate from the joint rate published and filed by a carrier need not specifically charge that such rate was required to be filed by the statute, where it alleges that it was published and filed as required by law.23 On the other hand, an indictment which charges that there was an arrangement between several carriers having connecting lines for the continuous transportation of property over such lines between certain points, and that the lowest total rate, as shown by the published tariffs of such several carriers, was a certain sum on a particular product, but that such product was transported for defendant at a lower rate, is bad, in that it does not negative the existence of a joint through rate lower than the total of the local rate.24 Variance. In a prosecution for rebating in the application of transit rates to certain local shipments, evidence that one of the cars was sold to a railroad company and transported over its own line for a part of the outgoing distance, and that the charges for such portion of the distance were absorbed by it, did not constitute a fatal variance.2 Evidence. On a prosecution of the shipper for receiving a rebate, it has been held that the burden is on the government to prove that the tariffs were posted at least in the depot, station, or office of the railroad company where the shipments were received;26 but under later decisions, both of the United States supreme court and of the federal district court, it seems that the burden of proving this fact is not cast upon the government.26% It may be shown that the carrier giving the alleged rebate was subject to the provisions of the statute.27 Where the prosecution is for receiving rebates on a shipment over the lines of more than one carrier, any evidence tending to show that the shipment was made under a through bill of lading, or on a contract for continuous carriage by the several carriers, is admissible to prove that such carriers were used for the purpose of the shipment under a common control, management, or arrangement of continuous carriage,28 and the schedules of rates filed with the interstate commerce commission by the several carriers are admissible for the purpose of showing the lawful rate on such shipment.2 29 [§ 1029] 4. Receiving Discrimination. The Elkins Act, the provisions of which so far as pertinent to 20. Armour Packing Co. v. U. S., | 153 Fed. 1, 82 CCA 135, 14 LRANS 400 [aff 209 U. S. 56, 28 SCt 428, 52 L. ed. 681]. 21. U. S. v. Standard Oil Co., 148 Fed. 719. 22. U. S. v. Vacuum Oil Co., 153 Fed. 598. 23. U. S. v. Vacuum Oil Co., 153 Fed. 598. 24. U. S. v. Standard Oil Co., 148 Fed. 719. 25. Nichols, etc., Lumber Co. V. U. S.. 212 Fed. 588, 129 CCA 124. 26. U. S. v. Indiana Standard Oil Co.. 170 Fed. 988. 2619. U. S. v. Miller, 223 U. S. 599. 32 SCt 323. 56 L. ed. 568 [rev 187 Fed 375]; Nichols, etc., Lumber Co. v. U. S., 212 Fed. 588, 129 CCA 124. See also supra § 1027 text and note 85%1⁄2: $ 1028 text and note 6. 27. U. S. v. Camden Iron Works, 150 Fed. 214 [rev on other grounds 158 Fed. 561, 85 CCA 585] (holding that the provision in the Elkins Act to the effect that any rate filed by a carrier with the interstate commerce commission, or in which it participates, shall be conclusively deemed to be the legal rate as against such carrier, merely prescribes the effect to be given such rate as evidence against the carrier and does not affect its admissibility against the shipper who is being tried for receiving a rebate). 28. U. S. v. Camden Iron Works, 150 Fed. 214 [rev on other grounds 158 Fed. 561, 85 CCA 585]. 29. U. S. v. Camden Iron Works, 150 Fed. 214 [rev on other grounds |