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traffic manager and the rate clerk will receive more detailed consideration hereafter.

It is the position of the defendant that the Elkins' law and certain pertinent portions of the Interstate Commerce Law of February 4, 1887, c. 104, 24 Stat. 379 [U. S. Comp. St. 1901, p. 3154], are unconstitutional for the following reasons: First, that the defendant has a natural, inherent right to make a private contract for a railroad rate, of which right the Elkins' law would deprive the defendant by requiring it to pay the rate published and filed by the carrier, and making a failure so to do criminal, in violation as is claimed of the fifth amendment to the Constitution of the United States, which provides that "no person shall be * deprived of life, liberty or property without due process of law”; second, that by authorizing common carriers to establish rates, which when published and filed shall be binding upon the shipper, the law delegates to the carrier legislative power, which section 1 of article 1 of the Constitution confers upon Congress exclusively; third, that the law vests in the Interstate Commerce Commission the power to pass ultimately upon the question of reasonableness or unreasonableness of freight rates as established by a carrier, thereby depriving the defendant of its right to invoke the judgment of the courts in respect thereto, in violation of section 1 of article 3 of the federal Constitution, which vests the judicial power of the United States exclusively in the courts; fourth, that paragraph 3 of section 8 of article 1 of the Constitution, commonly known as the “Commerce Clause," does not empower Congress to forbid and make criminal the act of the defendant in accepting from the carrier a less rate than that published and filed by the carrier as required by section 6 of the Interstate Commerce law.

With respect to the second proposition, it need only be said that the Supreme Court of the United States has in a number of instances ruled adversely to the defendant's contention, in cases where the same question arose on state statutes empowering railroad commissions to fix rates. And the third objection is not sound for the reason that the interstate commerce law does not purport to deprive the courts of their jurisdiction at the suit of a shipper to ultimately determine the question of reasonableness or unreasonableness of a rate.

Respecting the defendant's alleged natural right to make a private contract for a secret railroad rate, candor obliges the court to say that he knows of nothing to support the proposition but the eminence of counsel who advance it. In such case, as in all others, it would require two parties each competent to contract, and, considering the nature of the thing to be contracted for, the railway common carrier is fundamentally incompetent. This is so for the reason that the railway company is a public functionary and is enabled to construct and operate a railroad only by its exercise of the power of eminent domain, which is a sovereign power of government. Thus, by condemnation proceedings, such a corporation may take the real property of the individual citizen, even his homestead, against his will and . protest. The theory upon which government authorizes this to be done is that it is necessary for the public welfare, and nothing can

possibly be more plain than that property thus acquired must be used for the benefit of the public; not part of the public, but all of the public. Under the doctrine insisted upon by the defendant, the railway company might give the Standard Oil Company a very low transportation rate, and, by contract, obligate itself to withhold the same rate from the very man the taking of whose property by condemnation rendered possible the construction of the road. A more abhorrent heresy could not be conceived. There is no more reason for the claim of natural right to private contract for the exercise by a railway conipany of the public power with which it is endowed than there would be for the claim of similar right to private contract with the collector of customs or tax assessor for a secret valuation of property.

It is the defendant's position that the commerce clause does not empower Congress to forbid and make criminal the defendant's act in accepting from the carrier a less rate than that published and filed by the carrier, as required by law. In the court's view, the only point involved in this proposition is whether Congress has authority to require that railroad rates shall be uniform. It being now settled that Congress has this power, it necessarily follows that to preserve uniformity that body may prohibit the doing of any act or thing whatever by any person or corporation calculated to impair uniformity, and may enforce such prohibitions by such penal provisions as Congress may deem requisite.

The defendant maintains that the interstate commerce law does not apply to the Alton Company's connection with the transportation of defendant's property, inasmuch as the road it operates lies wholly within the state of Illinois. The theory is that the haul by the Chicago Terminal from Whiting across the Illinois line to Chappell, and the haul by the St. Louis terminal from East St. Louis across the Missouri line to St. Louis, are each interstate, and therefore subject to federal control, but that the Alton Company's intrastate haul of the same property from Chappell to East St. Louis is beyond the reach of federal authority. The trouble with this contention is that it ignores the basic proposition underlying the whole question, and confuses the intrastate character of the carrier with the interstate character of the commerce in which the carrier is engaged. The true and primary test is whether the commodity to be transported is to pass from one state into another state. If it does so pass, then it is interstate commerce, regardless of whether the rails over which it moves be operated by one or many carriers. And when this commodity begins to move, interstate commerce has begun, and interstate commerce it continues to be until it reaches destination. If in such continuous line there be a road lying wholly within a county in a state, the carrier operating such road, in respect to the movement of that commodity, is engaged in interstate commerce, as clearly as if its line extended from the origin to the destination of the shipment, and is therefore as to such transportation subject to federal control. To adopt the views contended for by defendant, namely, that Congress may prescribe the rate which the shipment must pay for the movement from Whiting to Chappell, and from East St. Louis to St. Louis, and that the Legislature of Illinois may prescribe the rate effective on the link connecting these two ends of the route traveled by the commodity, would be to create a situation impossible in practice as it is illogical in theory.

It was insisted by the defendant that the evidence did not show any common arrangement between the Chicago & Alton and the Chicago Terminal companies for a continuous carriage from Whiting to East St. Louis, as charged in the indictment. The evidence did show the filing and publication of a joint tariff schedule of the Chicago & Alton and Chicago terminal companies, putting in force from Whiting to East St. Louis the 18-cent rate, shown by tariff 24 to be the Chicago-East St. Louis rate. Furthermore, these two companies maintained a joint agency at the intersection of their roads at Chappell for the transaction of the business of both at that point, which consisted largely of the Standard Oil traffic from Whiting to East St. Louis. In addition to this, the evidence shows the movement of the defendant's property by the Chicago Terminal Company, that company not looking to the defendant for its compensation but relying solely upon the Alton Company therefor. The whole course of business from the publication and filing of the joint schedule to the payments of the freight charges conclusively shows that these two companies were operating under a common arrangement for the transportation of this property.

The defendant also contends that, inasmuch as the name “Chappell” does not appear on the schedules, there was no lawful rate between Chappell and St. Louis. The evidence does show, however, that tariff 24 named the rate to East St. Louis from Chicago and suburban stations within the Chicago switching district, including the station immediately beyond Chappell from Chicago. Moreover, on the face of the Alton-Chicago Terminal joint schedule appeared the following: "Agents are strictly prohibited from quoting or using a higher rate for a shorter than for a longer distance over the same line in the same direction, the shorter being entirely included within the longer distance." This would seem to clearly exhibit the rate from Chappell. Certainly it would be ample, and to no extent misleading, notification to any shipper consulting the schedule in good faith to learn the law ful rate.

The defendant claims that the evidence fails to sustain the charge in the indictment that the Alton Company was engaged in the transportation of property from Chappell to St. Louis, and that it had published and filed tariff schedules showing the rate in force between said points to be 191/2 cents. As before observed, the Alton Company published and filed tariff 24 showing a rate of 18 cents from Chappell to East St. Louis. The evidence also shows that the Alton Company procured copies of the tariff schedules of the St. Louis terminal companies, showing their rate to be 11/2 cents from East St. Louis to St. Louis, and filed these schedules in its own name with the Interstate Commerce Commission, distributing the same to its freight agencies where they were kept for the use of the general shipping public. Having thus published and filed the rate covering the entire route, and having actually seen to it that the property reached its St. Louis destination, as its general chårter powers authorized it to do, and as the defendant looked to it to do, and paid it for doing, the court is of the opinion that the evidence clearly shows the Alton Company was possessed of a

railroad route from Chappell to St. Louis over which it had established a rate for the transportation of oil as required by law.

If a carrier enters the field for traffic destined to points beyond its line, and a shipper turns his property so destined over to it, such traffic is as clearly subject to the requirements of the Interstate Commerce Law as would be the case if the carrier owned and operated the line through to destination.

In the absence of a formal agreement establishing a joint through rate effective over a through route made up of the connecting lines of more than one carrier, the lawful rate in force over such through route is the sum of the local rates lawfully established by the several connecting carriers over their respective roads. The Alton Company and the St. Louis terminal companies had no joint through agreement, as at their election under the law they might have had. However, it would be wholly inadmissible to hold that the interstate traffic handled by them was immune from federal regulation merely because of this omission.

The defendant offered certain tariff schedules as tending to show that during the period covered by the indictment there was in force by the Chicago & Eastern Illinois Railroad from Whiting to East St. Louis a rate on oil of 614 cents, which it was claimed, owing to certain terminal charges at East St. Louis, to which the Alton traffic was subjected, was equal to the 6-cent rate via the latter route. This evidence was offered to etablish an absence of motive on the part of the defendant to accept an unlawful rate from the Alton, but was excluded by the court, as not being admissible on the question of the defendant's guilt or innocence in accepting the unlawful rate from the Alton Company, the court announcing that, if it should subequently appear that there was in force such open, published, filed rate via the Chicago & Eastern Illinois Railroad available to the general public, that fact would be considered by the court in mitigation of punishment. Motive is not material in a case where the proof is clear that it was the defendant who committed the crime. Motive may be inquired into when necessary to determine the ultimate fact, when in dispute, as to who committed the crime. Schmidt v. U. S., 133 Fed. 263, 66 C. C. A. 389.

The real question is whether the defendant accepted the concession knowingly, and in determining this it need not be affirmatively shown that the defendant had actual knowledge of the lawful rate. The defendant must be presumed to have known that which a diligent endeavor made by an honest man in good faith to ascertain the lawful rate would have disclosed to him. The burden of this diligent endeavor is not to be diminished or increased by the supposed existence or absence of a lawful rate on some other road equal in amount to the rate accepted by the shipper. To adopt defendant's contention would be to impose upon the occasional shipper who cannot employ a traffic manager, and who is not expert in traffic matters, a more rigid requirement than that imposed upon the continuous shipper, by excusing the latter on account of what his large business might enable him to know of rates on other roads from penalties which would be imposed upon the former for the same act. Moreover, it is to be observed that what a shipper might know respecting rates in force on one road would not inform him of what rates were lawfully in force on another road. The most that can be said for the defendant's contention in this regard is that the shipper might assume the same rates to be in force on competing lines. But the law does not allow him to assume. He must know what he can ascertain by inquiry. The rate once established and available to him on application, he must pay.

The court is not impressed by the doleful predictions of counsel for the defendant as to the hardships upon the honest shipping public to be anticipated from the enforcement of this rule. The honest man who tenders a commodity for transportation by a railway company will not be fraudulently misled by that company into allowing it to haul his property for less than the law authorizes it to collect. For the carrier thus to deceive the shipper would be to deliberately incriminate itself, to its own pecuniary detriment, which it may safely be trusted not to do. The only man liable to get into trouble is he who, being in control of the routing of large volumes of traffic, conceives a scheme for the evasion of the law, and connives with railway officials for its execution.

The defendant argues that the Elkins' law authorizes prosecution for but one offense, and maintains that there can be a conviction on but one count–citing decisions of courts supporting the propositions in cases arising on other statutes. However, in this as in all other cases involving statutory construction it is solely a question of legislative intent. The language of the laws is :

“Every person or corporation who shall offer, grant or give, or solicit, accept or receive any such rebates, concession or discrimination shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by a fine of not less than one thousand dollars nor more than twenty thousand dollars."

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As the court reads this enactment, the offense is complete whenever any property is transported at less than the lawful rate. If this be true, the law is violated every time any property is so transported. There is nothing in these words deliberately employed by Congress to indicate its intention to be that, if a defendant shall offend habitually, he shall have immunity save only as to one violation. Nor will the court indulge the supposition that this could have been the unexpressed intention of Congress, to be judicially interpreted into the law, in opposition to what appears to be its plain meaning, because such a rule would encourage him who had violated the law on one occasion to disobey it by wholesale in order to thereby accumulate a large fund for his own purse, after paying the fine imposed for the single penalty.

It is also urged that, if this construction be not adopted, the number of penalties should be limited to three, on the theory that but one concession was granted by the railway company and accepted by the defendant each year; the point being that the 6-cent rate was given to the defendant to be effective throughout each one of the three years covered by the indictment. If this theory be not accepted, it is maintained that the number of penalties should be limited to 36, that being the number of bills rendered by the Alton Company at the

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