foreign country, yet it has no application to the transportation of such property under a through bill of lading from the place of the origin of the carriage to the foreign destination. The proposition cannot be sustained. The act is general, comprehensive, includes within its express terms all transportation of property in foreign commerce from the place of origin in the United States to the port of transhipment, and it contains no exception of such carriage under through bills of lading. As the Congress made no such exception, the conclusive presumption is that it intended to make none, and it is not the province of the judicial department to do so. Omaha Water Co. v. City of Omaha, 77 C. C. A. 267, 147 Fed. 1, 13; Madden v. Lancaster County, 12 C. C. A. 566, 572, 65 Fed. 188, 194; Wrightman v. Boone County, 31 C. C. A. 570, 572, 88 Fed. 435, 437; Union Central Life Ins. Co. v. Champlin, 54 C. C. A. 208, 210, 116 Fed. 858, 860.

The sixth section proceeds to require all common carriers subject to its provisions to file and publish schedules and tariffs and joint tariffs and schedules of their rates for all transportation, subject to the act, and closes with the declaration that if any carrier fails to file or publish its schedules or tariffs, as provided in that section, the commissioners may apply to the court "to restrain such common carrier from receiving or transporting property among the several states and territories of the United States, or between the United States and adjacent foreign countries, or between ports of transhipment and of entry and the several states and territories of the United States, as mentioned in the first section of this act until such common carrier shall have complied with the aforesaid provisions of this section of this act." The Congress was evidently of the opinion that this section required carriers engaged in the transportation of property in foreign commerce from places in the United States to ports of transhipment and from ports of entry to places in the United States to file and publish the rates under which this property moved. Otherwise, it would not have authorized the issue of an injunction to restrain them from receiving or transporting property between ports of transhipment and of entry and the several states and territories of the United States, as mentioned in the first section of the act, until they filed and published their rates in compliance with section 6. The Elkins act does not fail to recognize the fact that the interstate commerce act regulates the transportation of goods in foreign, as well as in interstate, commerce. It declares that it shall be unlawful to receive any concession "in respect of the transportation of any property in interstate or foreign commerce subject to such act to regulate commerce," whereby any property shall be transported at a less rate than that filed and published as required thereby.

Counsel argue with much force and great ability that the act does not apply to through export shipments (1) because it does not regulate all commerce or all carriers, but it regulates all carriers by rail, and by rail and water combined, who transport property in foreign commerce from or to places in the United States to or from ports of transhipment or of entry; (2) because ocean rates continually and greatly vary so that through export rates cannot have any permanency, and so cannot be established by filing and publishing, but, if such through

153 FEDERAL REPORTER.

rates may not be thus established, the inland rates to and from the ports can and must be, and to these the ocean rates may be, added, as in the case in hand, and if the through export rates can be thus established, and they are so, they may be filed and published; (3) because the act of 1887 applies to foreign commerce between the ports of transhipment or of entry and the places of its origin or destination in the United States only, but the act requires the rates between those places to be established, filed, and published. If those rates are separate from the ocean rates, they may undoubtedly be separately filed and published, and the ocean rates may be added to make aggregate through rates, as was done in the case under consideration. If by agreement or arrangement between the inland and the ocean carriers or by common control the inland rates become parts of joint through rates, then the latter rates become the rates of transportation to or from the ports of transhipment from or to the places of the origin or destination of the traffic in the United States, and they thereby fall within the terms and the reason of the law.

The history of this legislation, the evils it was intended to remedy, the objects it was enacted to secure, the instability of the ocean rates, the inconvenience of establishing rates of transportation for property in foreign commerce, the necessary restraint upon this commerce which the subjection of its rates to this act will unavoidably impose and the conceded rule that "laws which create crime ought to be so explicit that all men subject to their penalties may know what acts it is their duty to avoid. * * * case must be plainly and unmistakably within the statute" (U. S. v. Before a man can be punished, his Brewer, 139 U. S. 278, 288, 11 Sup. Ct. 538, 35 L. Ed. 190)—have been ably and persuasively presented in support of the argument that the rates of through export traffic are not within these acts. But where the language of a law is clear, and the signification of its terms is certain, argument from its history and purpose, from its possible or even probable evil effects, and from the inconvenience of complying with it and attempted judicial construction of its expressions, serve only to create doubt and to confuse the judgment. They tend to obscure, rather than to elucidate, the meaning of the statute, and the legislative body must be presumed to have intended what it has expressed. Knox Co. v. Morton, 15 C. C. A. 671, 673, 68 Fed. 787, 789; Shreve v. Cheesman, 16 C. C. A. 413, 416, 69 Fed. 785, 788. The plain terms of the act of 1887, their certain meaning, and the lucid and authoritative interpretation. of them by the Supreme Court, which has been quoted, leave no doubt. upon this question, and our conclusion is that common carriers subject to the provisions of the act of 1887 to regulate commerce, who are engaged in the transportation of property in foreign commerce under through bills of lading, are required by that act to file and publish their rates for the carriage of the property from its place of shipment in the United States to the port of transhipment and from its port of entry to its place of destination in the United States. If it is carried under an aggregate through rate, which is the sum of the ocean rate and the rate from or to the place in the United States to or from the port of transhipment or of entry, the latter rate is required to be published. If it is carried under a joint through rate by virtue of a com

mon control, management, or arrangement of the inland and ocean carriers, the joint rate must be filed and published. Texas & Pac. R. Co. v. Interstate Commerce Commission, 162 U. S. 197, 211, 212, 220, 16 Sup. Ct. 666, 40 L. Ed. 940; N. Y. Pr. Ex. v. N. Y. Cen. & Hud. Riv. R. R. Co., 3 Interst. Com. Com'n R. 137; New Orleans Cot. Exch. v. Louisville, N. O. & Tex. R. Co., 41 Interst. Com. Com'n R. 694, 699; In re Tariffs on Export and Import Traffic, 10 Interst. Com. Com'n R. 55, 63, 64, 66, 68, 76, 81.

In the case at bar the property was shipped under a through bill of lading at a through rate which was the sum of the ocean rate agreed upon between the proprietors of the steamship line and the shipper and a railroad rate from Kansas City to the point of transhipment, which was less than the established rate which was required to be and which in fact had been filed and published under the act of 1887. The shipper received a concession of 12 cents per 100 pounds from the part of the established and published rate proportional to the carriage between the Mississippi river and New York, and this constituted an offense under the Elkins act.

But it is said that, if this be the meaning of the amended act of 1887, it is in conflict with article 1, § 9, par. 5, of the Constitution, because it burdens exportation, and gives a preference to the ports of the states reached by the rivers, canals, bays, and sounds over those not thus situated. This burden is alleged to be imposed by the requirements that these rates shall be uniform, filed, and published, only increasable on 10 days' notice, and diminishable on 3 days' notice, and it is freely conceded that these provisions of the act perceptibly impede and restrain both foreign and interstate commerce. But the paragraph of the Constitution first invoked reads: "No tax or duty shall be laid on articles exported from any state." Do the restrictions of the amended interstate commerce act constitute a tax or duty on exports within the meaning of this prohibition? The argument in support of an affirmative answer is that freedom of exportation cannot be impeded in any degree by any legislation, and this contention is founded on these excerpts from the opinion of the Supreme Court in Fairbank v. U. S., 181 Ü. S. 283, 294, 295, 21 Sup. Ct. 648, 45 L. Ed. 862. In speaking of the earlier decision of that court in Almy v. California, 24 How. 169, 16 L. Ed. 644, to the effect that a tax or duty on a bill of lading was, in substance, a tax or duty on the article shipped, Mr. Justice Brewer, in delivering the opinion of the court, said:

"In other words, that decision affirms the great principle that what cannot be done directly because of constitutional restriction, cannot be accomplished indirectly by legislation which accomplishes the same result."

And again, at page 295 of 181 U. S., page 648 of 21 Sup. Ct. (45 L. Ed. 862), he remarked:

"As the states cannot directly interfere with the freedom of imports, they cannot by any form of taxation, although not directly on the importation, restrict such freedom; Congress alone having the power to prescribe duties therefor. In like manner, the freedom of exportation being guarantied by the Constitution, it cannot be disturbed by any form of legislation which burdens that exportation. The form in which the burden is imposed cannot vary the substance."

But the question under consideration in that case was whether or not a stamp tax on a foreign bill of lading was a tax or duty on the articles described in the bill, and hence a duty on exports, and in conflict with this constitutional provision. To that issue the remarks of the court were addressed, and upon it they were pertinent and authoritative. But they are neither relevant to, nor controlling upon, the question whether or not the Congress may impose incidental restrictions upon foreign commerce under its constitutional power to regulate it. If it may not, then it may not exercise that power, for there can be no regulation without some restriction.

It is a burden or restraint upon exportation by virtue of a tax or duty, and by that alone that is forbidden by the clause of the Constitution here under consideration. The interstate commerce act and its amendments impose no tax or duty upon either foreign or interstate. commerce. They were not enacted by virtue of the power of taxation for the purpose of raising a revenue and they raise none.

Again, it is a tax or duty on exportation imposed either directly or indirectly on account of the fact that the articles taxed are exported or are intended for export, and that alone that is obnoxious to this constitutional inhibition, and the restraint of the interstate commerce acts was not imposed upon the transportation of property in foreign commerce because it is exported or intended for export, but upon articles in foreign and interstate commerce alike for the sole purpose of regulating both alike pursuant to the commercial clause of the Constitution. Turpin v. Burgess, 117 U. S. 504, 506, 6 Sup. Ct. 835, 29 L. Ed. 988; Cornell v. Coyne, 192 U. S. 418, 427, 24 Sup. Ct. 383, 48 L. Ed. 504.

The second clause of the paragraph of the Constitution called to our attention reads: "No preference shall be given by any regulation of commerce or revenue to the ports of one state over those of another." Property in foreign commerce which may be transported entirely by water from and to places in the United States on its rivers, canals, sounds, and bays to and from ports of transhipment or of entry is free from, while property in foreign commerce which can be carried from and to the places in the United States to and from ports of transhipment or of entry by rail or partly by rail and partly by water only is subject to the restrictions and burdens of the amended interstate commerce law. Does that law thereby give a preference to the ports of one state over those of another? Counsel contend that this question should be answered in the affirmative, because ports reached by water routes from inland points reap the great and obvicus advantage of the freedom of their shippers to contract for the entire carriage, while ports reached from inland places by rail or by rail and water only are deprived of this freedom for their shippers, who must transport their articles subject to the burdens of established uniform inland rates changeable only after ten or three days' notice. The argument might be forceful and persuasive, if addressed to the policy or the justice of the law; but these issues were within the competence of, and have been conclusively determined by, the Congress. The only question which the judiciary can consider is whether or not

the provisions of the act here assailed are unconstitutional. The paragraph of the Constitution before us was enacted for the purpose of preventing Congress from so exercising its power to regulate commerce as to give to one state an advantage over another state by the enactment of a regulation which would prefer the ports of the former to those of the latter. The purpose and the extent of its inhibition are clearly expressed in its terms. It does not forbid a preference of ports of various states reached by inland water routes over those reached by rail, or a preference of those reached by many, over those reached by few, railroads or steamboats, but only those of one, state over those of another. It forbids the preference of the ports of one state because they are located in that state over the ports of another state because they are situated in the latter state. No such preference was intended or effected by the act of 1887 and its amendments, and for this reason these acts do not fall under this constitutional inhibition. Moreover, the advantage of which complaint is here made is rather that of geographical position, than of legislation. Congress cannot by any law make the advantages of other ports equal to those of one at the mouth of a great river. The alleged preference was not created by any positive enactment for that purpose, nor was it either one of the objects or the chief effect of this legislation. It is but one of the remote and incidental effects of a general, comprehensive, and undoubtedly beneficial regulation of the transportation of property by rail in the foreign and interstate commerce of the nation under the plenary authority granted by the Constitution. Acts of Congress which are passed in the exercise, and which are within the scope, of one of its undoubted powers, may not be held unconstitutional on account of remote and incidental effects which are clearly within them. Pennsylvania v. Wheeling & Belmont Bridge Co., 18 How. 421, 434, 15 L. Ed. 435; South Carolina v. Georgia, 93 U. S. 4, 13, 23 L. Ed. 782.

The interstate commerce act of 1887 and its amendments are not in conflict with article 1, § 9, par. 5, of the Constitution, because they do not lay any tax or duty on articles exported from any state, nor give any preference to the ports of one state over those of another within the meaning of that paragraph.

3. The Elkins act declares the offense of which the defendant was convicted to be the receiving of any concession in respect of the transportation of any property in interstate or foreign commerce, "whereby any such property shall by any device whatever be transported at a less rate than that named in the tariffs published and filed," as required by the interstate commerce act and its amendments. The judgment of conviction is assailed on the inconsistent grounds that the device by which the property was transported at a less rate than that published and filed was not pleaded in the indictment, and that the court charged the jury that it was essential for them to find that the shipper secured the concession as the result of such a device before they could convict. The latter objection is based on general exceptions to portion of the charge, which declare that both the device and the guilty intent of the defendant are essential to conviction. These exceptions failed to specify or inform the court below whether counsel challenged this charge because in their opinion the guilty intent was