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officers and the small prescribed payments. It is unnecessary to consider other distinct provisions of the statute, and, of course, we intimate no opinion concerning them.

The Supreme Court of the state affirmed a decree of the chancery court dismissing the bill upon demurrer, and its action must be Affirmed.

(250 U. S. 556)

LEHIGH COAL & NAVIGATION CO. v.
UNITED STATES.

It was charged in the indictment that the Central Railroad Company was an interstate carrier of coal and as such filed tariffs and schedules with the Interstate Commerce Commission showing its rates and charges from the coal fields in Pennsylvania to points in New Jersey.

During 1912, 1913, 1914, and a part of 1915, the tariffs were in force and under them the Company shipped a carload (described in the indictment) from its colliery in Pennsylvania to a specified point in New Jersey and accepted from the railroad a portion of the rate due and payable so that the coal was carried at

(Argued Oct. 14. 1919. Decided Nov. 10. 1919.) less than the rate and the Company thus re

No. 38.

ceived the advantage of an illegal rebate.

CARRIERS 38 EVIDENCE IN PROSECUTION Discrimination was not charged.

FOR ACCEPTING IMPROPER REBATES.

In prosecution of a coal company for knowingly accepting rebates and concessions from a railroad, to which it had leased its own lines, in violation of the Elkins Act (Comp. St. 88 8597-8599), as amended June 29, 1906, the coal company had a right to offer in evidence

that the allowance to it by the railroad, referred to in the railroad's filed tariffs, but not specified in figures therein, was received under the honest belief that it was lawfully established by the tariffs, and that in receiving it the company was not disregarding what it believed to be the provisions of the tariffs; misunderstanding in supposing the allowances could be justified by a footnote to the tariffs not being a misunderstanding of the statute itself, instead of the tariffs.

On Certificate from the United States Circuit Court of Appeals for the Third Circuit.

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The Lehigh Coal & Navigation Company was convicted of accepting rebates and concessions from a railroad in violation of the Elkins Act, and it appealed to the Circuit About 1878 the method of fixing rates was Court of Appeals, which certified two ques- changed but the rate to be charged the Comtions for the Supreme Court. The first ques-pany was fixed at 86 per cent. of the rate charged to other mines in the Lehigh region,

took into account the advantageous nearness In making the lease naturally the Company vorable rates for the coal from its collieries. of its mines to tide and sought to insure fa

tion answered in the affirmative.

Messrs. Henry S. Drinker, Jr., William Jay the reason being that there was that differTurner, and Abraham M. Beitler, all of Phil-ence in distance. While this arrangement adelphia, Pa., for Lehigh Coal & Navigation was in force the Company paid a net rate calCo. culated on the basis of 86 per cent. After

Mr. Henry S. Mitchell, of Washington, D. 1887, the date of the first act to regulate comC., for the United States.

merce, this method of settlement was changed and the Company was charged the full tariff rate, but was rebated or credited with 14 per *Mr. Justice MCKENNA delivered the opin- cent. thereof, this being done under the obliion of the Court. gation or supposed obligation of the tenth

*559

The case is here on certificate, an outline covenant. And between 1887 and August, of which it is necessary to give.

The Lehigh Coal & Navigation Company, herein called the Company, is a miner and shipper of anthracite coal, and was indicted, convicted and fined in the District Court of New Jersey for accepting rebates and concessions from the Central Railroad of New Jersey in violation of the Elkins Act (Act Feb. 19, 1903, c. 708, 32 Stat. 847, Comp. St. 88 8597-8599), as amended June 29, 1906 (34 Stat. 584, c. 3591).

1906, when the Hepburn Act went into effect, this arrangement for repayment did not appear in the tariffs filed by the Railroad with the Commission. But in August, 1906, and thereafter the tariffs contained a footnote in the following form:

"(4) In compliance with the Tenth Covenant of the lease from the Lehigh Coal & Navigation Company under which the Central Railroad Company of New Jersey operates the Lehigh & Susquehanna Railroad, a lateral allowance is

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(40 Sup.Ct.)

made out of herein-named rates to the Lehigh Coal & Navigation Company on all anthracite coal originating on the latter's tracks in the Panther Creek, Nesquehoning, and Hacklebarnie districts, mined and shipped by it, when coming via the Hauto, Nesquehoning, and Mauch Chunk gateways."

*561

All of the tariffs of the Railroad filed with the Commission after 1906 (262 in number) contained the footnote. The allowance was 19.18 cents per ton and this was credited in the monthly settlement of the Company's account with the Railroad, the credit being the point of the government's attack.

"The verdict covers 27 shipments of coal in prepared sizes from Nesquehoning colliery for reshipment at Elizabeth. The foregoing facts were either proved or stipulated, and it appeared also without dispute that during the years in question the Company's officers were familiar with the contents of the Central Railroad's tariffs, and knew that the allowance was being made and accepted. One of the Company's defenses was that it had not knowingly' accepted a rebate within the meaning of the act-its contention being, that the allowance had been accepted in good faith, in the honest belief that the payment was justified by the tenth covenant, and also in the honest belief that the allowance was properly and legally noted and provided for in the filed and published

tariffs."

"The Company's evidence concerning good faith was received under the government's objection, and the government offered evidence in contradiction thereof. At the close of the trial the court struck out all the evidence on this subject from the record, and refused to submit the question of good faith to the jury, holding that the Company's honest belief that the allowance was permitted by the tariffs and the footnote thereto could not affect the issue, for the reason that the Company knew the contents of the tariffs, and knew also that the allowance was actually made and received."

The certificate asks the following questions:

"1. In the criminal prosecution of a shipper for knowingly accepting transportation at less than the duly established rate by receiving an allowance that was referred to in the tariff, but was not specified in figures therein, has the defendant a right to offer in evidence that the allowance was received under the honest belief that it was lawfully established by the tariff, and under the honest belief that in receiving it be the provisions of the tariff but was complyhe was not disregarding what he believed to ing therewith?

the kind and amount of evidence offered upon "2. Upon the foregoing facts, and in view of the subject of good faith, did the district court err in the present case by refusing to submit the question to the jury?"

The questions asked depend upon the conThe Company offered evidence that would struction of the Elkins Act, as enacted in support the following findings:

(1) At the time the note was made, it, the Company, was informed of it, but was advised that the note had been made part of the tariff in full compliance with the act of 1906 and that being so the payment and receipt of the allowance would comply with the tariff and the law and the officers of the Company relied on this judgment.

(2) Between 1906 and the date of the indictment 262 tariffs, all containing the note, had been filed and accepted by the Commission.

(3) In 1908 the Company had been informed by the Railroad that the Commission (acting through one of the Commission's important officers who was in charge of the tariffs) had specifically approved the form of the tariff containing the note, in spite of the fact that the amount of the allowance had not been specified therein, the Commission at the time having the question under con⚫562

sideration. By reason of such information the Company honestly believed that the receipt of the allowance was not in violation of the tariff or the act, but was in compliance therewith.

(4) The Company's books, records and accounts were examined by the Commission's investigators in 1909 and the Commission was thereby informed that the Company had received and was receiving the allowance, but the Commission did not object either to the form or the substance of the practice.

563

1903 (32 Stat. 847), the relevant *part of which is as follows:

* It shall be unlawful for any person, or persons, or corporation to offer, grant, or give or to solicit, accept, or receive any rebate, concession, or discrimination in respect to the transportation of any property in interstate or foreign commerce by any common carrier subject to said act to regulate commerce and the acts amendatory thereto whereby any such property shall by any device whatever be transported at a less rate than that named in the tariffs published and filed by such carrier [italics ours].

And under an amendment in 1906 (34 Stat. 584) an offender, "whether carrier or shipper, who shall, knowingly, offer, grant, or give, or solicit, accept or receive any such rebates, concession, or discrimination shall be deemed guilty of a misdemeanor."

The way to a correct construction of the act was to an extent cleared by the case of Armour Packing Co. v. United States, 209 U. S. 56, 28 Sup. Ct. 428, 52 L. Ed. 681. Its evolution was there detailed. It was said that carrier and shipper are charged with an equal responsibility and liability and that the act "proceeded upon broad lines to accomplish" this equality, and "that the only rate charged to a shipper for the same service under the same conditions should be the one established, published, and posted as required by law." And this was declared in various ways to be the test of obligation and

liability and the "form by which or the mo- pliance with the statute a tariff filed-and if tive for which" its evasion or disregard is a question could be raised upon its legal suffiaccomplished is not of modifying or deter- ciency the belief of the Company in its legalimining consideration. It was in effect de- ty was supported by high authority and those cided that the purpose of the statute took circumstances can bring into action and exemphasis and meaning from the use of the culpating effect the provision of the statute word "device," and "device" was defined to be which requires the acceptance of a rebate to "anything which is a plan or contrivance" be "knowingly" done to incur the guilt of a and is "disassociated" from qualification misdemeanor. This conclusion gives no detand "need not be necessarily fraudulent," | rimental example against the efficacy of the and by it the act "sought to reach all means law. and methods by which the unlawful preference of rebate, or concession or discrimination is offered, granted, given or received." It is in effect the contention of the govern

*564

ment that the language of the case exhausts definition and excludes the supposition of the questions of the Circuit Court of Appeals. We are unable to concur. The language of the case is easily explained by the question that was presented for decision. The Armour Packing Company contended that the act was directed only at fraudulent conduct, the obtaining of a rebate by some dishonest or underhand method, concession or discrimination. The language of the court was addressed to this contention and its selection and adequacy are manifest.

No such contention is made in the case at bar and there are other distinguishing clements. It will be observed that by the statute and the decision the test of equality is the tariff rate. It was said in the opinion that it is the purpose of the act to punish those who give or receive transportation, in the sense of actual carriage, at a concession from the published rates. N. Y. Central & H. R. R. v. United States, 212 U. S. 500, 505, 29 Sup. Ct. 309, 311 (53 L. Ed. 624). And such was the offense of the Armour Packing Company. There was no evasion of the tariff rate in the case at bar. The filed tariff indicated the existence and obligation of the tenth covenant of the lease from the Company to the Railroad, that is, the fact of the allowance was declared, though it did not have specification in figures. The tariff, of course, would have been more definite and complete with such specification, but its sufficiency was certainly believed in for between 1906 and the date of the indictment it had 262 repetitions. The Company was given besides the assurance that it had the sanction of the Interstate Commerce Commission.

There was no attempt at deception. The Commission knew by examination of the Company's books of the allowance and the amount of the allowance. Such, then, is the situation, and distinguishes the case from the Armour Packing Company Case. There there was an omission to comply with the

*565

statute and the omission was attempted to *be justified by honesty of motive and purpose; here there was compliance or attempted com

We think this comment and conclusion enough to dispose of the questions asked and that there is no necessity to review the cases cited by the Company or the government.

Some of the contentions of the government we may notice. It is contended that the "lateral allowance" provided for in the tenth covenant and footnote to the tariff was not for transportation services and besides that there was no testimony whatsoever that the meaning of any provision of the tariff was misunderstood. The mistake, if any, it is hence insisted, was a mistake of law, not of fact. Two deductions are hence made by the government: (1) That the allowances were not made for transportation services; (2) Mistake of law is irrelevant to the question of the guilt or innocence of the Com

pany.

To the first we may reply it is not involved as an element in the question asked of this court and if it have any justification, as to which we express no opinion, it no doubt will be considered by the Circuit Court of Appeals upon the return of the case. The other expresses a refinement. Indeed, the contention of the government is somewhat elusive and we are not sure that we exactly estimate it. It is said:

"The sole misunderstanding which the excluded testimony tended to show would consist in supposing that the 'allowances' could be justified by the footnote in the tariff, and that,

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(250 U. S. 577)

(40 Sup.Ct.)

PITTSBURGH, C., C. & ST. L. RY. CO. v.
FINK.

commerce from Los Angeles, Cal., to Dayton, Ohio. The defendant, Fink, prevailed in the magistrate's court, the judgment was reversed in the court of common pleas, the case was

(Argued Oct. 7, 1919. Decided Nov. 10, 1919.) taken to the Court of Appeals of Montgomery

1. CARRIERS

No. 2.

32(1) CHARGE ON INTERSTATE SHIPMENT VARYING FROM FILED TAR

IFF RATES.

Under the Act to Regulate Commerce, 8 6 (Comp. St. § 8569), making it unlawful for an interstate carrier to receive compensation less than the sum fixed by its tariff rates filed, it was unlawful for such a carrier, a railroad, on delivering merchandise shipped in interstate commerce, to make a charge departing from its filed tariff rates. 2. CARRIERS

LIEN

197(1)-DISCHARGE OF ON SHIPMENT ONLY ON TENDER OR PAYMENT. For its legal charges, a common carrier by rail had a lien on the goods carried, which could be discharged, and the consignee become entitled to the goods only upon payment or tender of the rate.

3. CARRIERS 194-RIGHT TO RECOVER BALANCE OF FREIGHT UNDERCHARGE.

Where a shipment was made by rail from California to Ohio, and the carrier on delivery to the consignee accepted from him a charge smaller than that specified for such goods under its filed tariffs, and therefore illegal under Act to Regulate Commerce, § 6 (Comp. St. § 8569), the railroad can recover from the consignee the amount still due it, though by agreement with the consignor the consignee did not become own er of the goods until delivery; no estoppel against the railroad in favor of the consignee being available to avoid the requirements of the act as to equal rates.

County where the judgment of the court of common pleas was reversed and that of the magistrate affirmed. Fink v. Pittsburgh, C., C. & St. L. R. Co., 19 Ohio Cir. Ct. R. (N. S.) 103. The Supreme Court of Ohio denied a

motion to require the record to be certified to it by the Court of Appeals, and the case is here upon writ of error to the Court of Appeals of Montgomery County, Ohio.

The facts are that the railroad company on September 13, 1910, delivered to Fink, the consignee, two boxes of Indian relics shipped to him at Dayton, Ohio, from Los Angeles, Cal., the waybill specifying charges in the sum of $15, which sum Fink paid upon receipt of the goods. The tariff rates filed with the Interstate Commerce Commission so classified this merchandise that the transportation charges should have been $30 instead of $15. It is for the difference that this action is prosecuted.

It appears that Fink had dealt with the consignor at Los Angeles in such wise that some old coins, belonging to Fink, were to be traded for a collection of Indian relics. Fink shipped the coins to the postmaster at Los Angeles to be held for his protection. At the time the action was brought, about one year after the shipment, the postmaster had released the coins, and Fink had sold some of the relics. Fink testified that he had no

knowledge of the freight classification and rates, and simply paid the freight bill as it was presented to him. No agreement appears to have been made with the consignor that

In Error to the Court of Appeals of Mont- Fink should pay the freight charges. gomery County, Ohio.

Action by the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company against Alvin J. Fink. To review judgment for defendant, plaintiff brought error to the Court of Appeals of Montgomery County, Ohio, which reversed (19 Ohio Cir. Ct. R. [N. S.] 103), and defendant brings error. Judgment of the Court of Appeals reversed, and cause remanded to that court for further proceedings not inconsistent with the opinion.

*578

Examination shows some conflict of authority as to the liability at common law

*581

of the consignee to pay freight *charges under the circumstances here shown. The weight of authority seems to be that the consignee is prima facie liable for the payment of the freight charges when he accepts the goods from the carrier. See the cases collected and discussed in Hutchinson on Carriers (3d Ed.) § 1559. However this may be, in our view the question must be decided upon consideration of the applicable provisions of the statutes of the United States regulating interstate commerce. The purpose of the Act to Regulate Interstate Commerce (Act Feb. 4,

*Messrs. William M. Matthews, Edwin P. Matthews, both of Dayton, Ohio, and F. D. McKenney, of Washington, D. C., for plaintiff in error. Mr. Roy G. Fitzgerald, of Dayton, Ohio, for 1887, c. 104, 24 Stat. 379), frequently declared defendant in error.

*579

in the decisions of this court, was to provide one rate for all shipments of like character,

*Mr. Justice DAY delivered the opinion of and to make the only legal charge for the the Court.

An action was brought by the railway company before a justice of the peace in Mont

*580

gomery county, Ohio, to *recover $15, the freight charges upon a shipment in interstate

transportation of goods in interstate commerce the rate duly filed with the Commission. In this way discrimination is avoided, and all receive like treatment, which it is the main purpose of the act to secure.

[1-3] Section 6 of the Act to Regulate Com

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

merce (Comp. St. § 8569), which was in force of his agreement with the consignor did not at the time of this shipment, provides: become the owner of the goods until after the same had been delivered to him.

"Nor shall any carrier charge or demand or collect or receive a greater or less or different compensation for such transportation of passengers or property, or for any service in connection therewith, between the points named in such tariffs than the rates, fares, and charges which are specified in the tariff filed and in effect at the time; nor shall any carrier refund or remit in any manner or by any device any portion of the rates, fares, and charges so specified, nor extend to any shipper or person any privileges or facilities in the transportation of passengers or property, except such as are specified in such tariffs."

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turned over the goods to Fink upon a mistaken understanding of the rate legally chargeable, both it and the consignee undoubtedly acted upon the belief that the charges collected were those authorized by law. Under such cirumstances consistently with the provisions of the Interstate Commerce Act the consignee was only entitled to

There

is no proof that such agreement was known to the carrier, nor could that fact lessen the obligation of the consignee to pay the legal tariff rate when he accepted the goods. Pennsylvania Railroad Co. v. Titus, 216 N. Y. 17, 109 N. E. 857, L. R. A. 1916E, 1127, Ann. Cas. 1917C, 862. Nor can the defendant in error successfully invoke the principle of

*583

estop*pel against the right to collect the legal rate. Estoppel could not become the means of successfully avoiding the requirement of the Act as to equal rates, in violation of the provisions of the statute. New York, New Haven & Hartford R. R. Co. v. York & Whit ney Co., 215 Mass. 36, 40, 102 N. E. 366.

In our view the court of common pleas correctly held Fink liable for the payment of the remaining part of the legal rate upon the merchandise received by him. The judgment of the Court of Appeals of Montgomery County, Ohio, is reversed, and the cause remanded to that court for further proceedings not inconsistent with this opinion. Reversed.

(250 U. S. 583) STILSÓN. UNITED STATES.

SUKYS v. SAME.

10, 1919.)

Nos. 264 and 265.

the merchandise when he paid for the trans- (Argued Oct. 20 and 21, 1919. Decided Nov. portation thereof the amount specified as required by the statute. For the legal charges the carrier had a lien upon the goods, and this lien could be discharged and the consignee become entitled to the goods only 1. CRIMINAL LAW 622(1)—JOINT TRIAL OF upon tender or payment of this rate. Texas & Pacific Railway Co. v. Mugg, 202 U. S. 242,

CODEFENDANTS IN DISCRETION OF COURT.

Joint indictees may, in the discretion of 26 Sup. Ct. 628, 50 L. Ed. 1011. The trans- the court, be ordered to be tried together. action, in the light of the act, amounted to

JOINT TRIAL.

Const. Amend. 6, merely securing to accused in a criminal case trial by an impartial jury, is not contravened by the statute, now Judicial Code, § 287 (Comp. St. § 1264), which, while giving a party right to a certain number of peremptory challenges, treats several defend

ants, for such purpose, as one party.
3. CRIMINAL LAW 1172(1)-INSTRUCTION

an assumption on the part of Fink to pay the 2. JURY 84-PEREMPTORY CHALLENGES ON only legal rate the carrier had the right to charge or the consignee the right to pay. This may be in the present as well as some other cases a hardship upon the consignee due to the fact that he paid all that was de manded when the freight was delivered; but instances of individual hardship cannot change the policy which Congress has embodied in the statute in order to secure uniformity in charges for transportation. Louisville & Nashville Railroad Co. v. Maxwell, 237 U. S. 94, 35 Sup. Ct. 494, 59 L. Ed. 853, L. R. A. 1915E, 665. In that case the rule herein stated was enforced as against a pas senger who had purchased a ticket from an agent of the company at less than the published rate. The opinion in that case reviewed the previous decisions of this court, from which we find no occasion to depart.

It is alleged that a different rule should be applied in this case because Fink by virtue

NOT PREJUDICIAL.

Defendants, on prosecution for violations of Espionage Act, could not be prejudiced by instruction that the jury might be supposed to know the fact that the country was at war. 4. CRIMINAL LAW 822(6)

INSTRUCTION

LEAVING QUESTION OF FACT TO JURY. Charge, taken as a whole, on prosecution for violation of Espionage Act, held to fairly leave to the jury the question of whether the facts made a case coming within the denun ciation of the statute.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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