153 FEDERAL REPORTER. immaterial, or because they thought that the device was unimportant. They now insist, and for the purposes of this decision it is conceded, that a criminal intent on the part of the defendant was indispensable to its conviction, and that the proposition of law embodied in the portion of the charge assailed which declares that rule is correct. But a general exception to a portion of a charge which contains two or more propositions of law is insufficient, if any one of them is sound, because such an exception does not inform the judge which proposition is challenged and give him an opportunity to correct it. St. Louis, I. M. & S. R. Co. v. Spencer, 18 C. C. A. 114, 116, 71 Fed. 93, 95; New Dunderberg Min. Co. v. Old, 38 C. C. A. 89, 94, 97 Fed. 150, 155; Price v. Pankhurst, 3 C. C. A. 551, 53 Fed. 312. For this reason the second ground of objection is untenable and is here dismissed. The gist of the shipper's offense under paragraph 3 of section 10, as amended by the act of 1889 (25 Stat. 858, c. 382 [U. S. Comp. St. 1901, p. 3160]), is the fraud of obtaining transportation at a rate less than the established rate "by false billing, false classification, false weighing, false representation of the contents of the package or false report of weight or by any other device." Under the familiar maxim, "noscitur a sociis," the device of this paragraph is a device of the same character as the false representations with which it is associated, a deceptive or fraudulent device. Davis v. U. S., 43 C. C. A. 448, 451, 104 Fed. 136, 139. Obtaining transportation at a rate less than the regular published rate, without committing any fraud or making any false representation to secure it, is not unlawful under this act of 1889. And an averment of the fraudulent device by which the transportation is secured is indispensable to an indictment founded upon that act, because the fraudulent device is the substance of the offense. U. S. v. Hanley (D. C.) 71 Fed. 672, 676. But it is not so with the offense of the shipper denounced by the Elkins act upon which this indictment is based. peal, modify, or amend the provision of the act of 1889, which made That act did not rethe obtaining of transportation at a less rate by a fraudulent device. a crime. But it created a new offense, the acceptance or receipt of a concession whereby any property in interstate or foreign commerce should be transported by any device whatever at less than the regular filed and published rate. The substance of this offense is not the device, but the solicitation or receipt of the concession and the transportation thereby effected. It may be committed whether the concession is induced by a fraudulent or an honest device, by a shrewd or a simple one, by a secret or an open one. phrase "by any device whatever" here is directly or indirectly, in any The true meaning of the way whatever, and the evident purpose of its use was to emphasize the scope of the law so that it would clearly include the solicitation or receipt of every concession, however obtained, whereby property in interstate or foreign commerce should be transported at less than the regular filed and published rate. It is conceded that, where a crime is a statutory one, the indictment must set forth with clearness and certainty every essential element of which it is composed. It must portray the facts which the pleader claims constitute the alleged transgression so distinctly as to advise the accused of the charge which he has to meet and to give him a fair opportunity to prepare his defense, so particularly as to enable him to avail himself of a conviction or an acquittal in defense of another prosecution for the same offense, and so clearly that the court may be able to determine whether or not the facts there stated are sufficient to support a conviction. Ledbetter v. U. S., 170 U. S. 606, 609, 610, 18 Sup. Ct. 774, 42 L. Ed. 1162; U. S. v. Britton, 107 U. S. 655, 669, 670, 2 Sup. Ct. 512, 27 L. Ed. 520; U. S. v. Carll, 105 U. S. 611, 26 L. Ed. 1135; U. S. v. Hess, 124 U. S. 483, 488, 8 Sup. Ct. 571, 31 L. Ed. 516; U. S. v. Cook, 17 Wall. 168, 174, 21 L. Ed. 538; U. S. v. Cruikshank, 92 U. S. 542, 558, 23 L. Ed. 588; U. S. v. Simmons, 96 U. S. 360, 24 L. Ed. 819; Pettibone v. U. S., 148 U. S. 197, 13 Sup. Ct. 542, 37 L. Ed. 419; Evans v. U. S., 153 U. S. 584, 14 Sup. Ct. 934, 38 L. Ed. 830; Miller v. U. S., 66 C. C. A. 399, 403, 133 Fed. 337, 341. The indictment in this case pleads the names of the carriers that transported the property, the date and place of the delivery of the goods to the initial carrier and of the receipt of the concession by the shipper, a description of the specific articles shipped, the filed and published rate, the less rate at which the goods were transported, and the amount of the concession, the place of shipment, and the point of destination of the property, and the route over which it was transported. Here were averments of facts sufficient to clearly advise the defendant of the offense with which it was charged, to give it ample opportunity to prepare, its defense, to enable it to avail itself of a conviction or an acquittal in the case of another prosecution for the same crime, and to qualify the court to determine whether the facts stated constituted an offense. The particular device by which the concession and transportation were obtained was not an essential ingredient of the offense charged, because the latter might well exist, whatever the device, and whether or not there was one, and hence the indictment portrayed every material element of the crime without an averment of this device. U. S. v. Tozer, 37 Fed. 635, 637. The substance of the crime of receiving a rebate or concession under the Elkins act is the solicitation, acceptance, or receipt thereof, whereby property in interstate or foreign commerce is transported at less than. the regular rate. The device whereby the receipt and transportation are obtained is not an essential element of the crime, and it is unnecessary to plead it in the indictment. 4. On June 17, 1905, when the part of the filed and published rate on the article shipped proportionate to the carriage from the Mississippi river to New York was 23 cents per 100 pounds, the Burlington company agreed with the packing company to carry goods of this character for it until December 31, 1905, at this rate. But the shipment here challenged was made under this contract, and the concession of 12 cents per 100 pounds from the then established rate was received on August 17, 1905, 11 days after the Burlington company and its connecting carriers by an amendment to their tariffs and schedules filed and published, as required by law, had raised the part of the established rate proportionate to the transportation from the Mississippi river to New York to 35 cents per 100 pounds. Did the contract extract the 22 L. R. A. 444. 153 F.-2 153 FEDERAL REPORTER. vice of illegality from the receipt of the concession and the transportation thereunder? The amended act to regulate commerce requires carriers subject to its terms to cause tariffs and schedules of their rates to be filed and published, prohibits them from raising the rates thus established on less than ten, and from lowering them on less than three, days' notice, and the Elkins act declares that it shall be unlawful for any person or corporation to give or receive any rebate or concession, whereby any property in interstate or foreign commerce shall be transported at a less rate than that named in the tariffs thus filed and published. If the contract here presented legalizes the receipt of the concession obtained under it, then the courts must add to this provision of the Elkins act the clause, "except where the concession is given or received under a prior contract to transport the property at a less rate which was in force when the agreement was made," or a term of similar import. But the Congress made no such exception. Why should the courts do so? Madden v. Lancaster Co., 12 C. C. A. 566, 573, 65 Fed. 188, 195; Omaha Water Co. v. City of Omaha, 77 C. C. A. 267, 147 Fed. 1, 13. The validity of the contract is exhaustively discussed; but that is not the test of the legality of the concession. It may be unlawful to perform a valid contract. agreement to marry; but, if either marries another, the subsequent A man and a woman may make a legal performance of the former contract is illegal. Counsel invoke the conceded rule that carriers engaged in interstate and foreign commerce are free to make contracts relative to the rates and the traffic therein which are not prohibited by the acts to regulate this commerce. Cincinnati, etc., R. Co. v. Interstate Commerce Commission, 162 U. S. 184, 197, 16 Sup. Ct. 700, 40 L. Ed. 935; Interstate Commerce Commission v. Baltimore & Ohio R. Co. (C. C.) 43 Fed. 37; Interstate Com. Commission v. Chicago G. W. Ry. Co. (C. C.) 141 Fed. 1003; Laurel Cotton Mills v. Gulf, etc., R. Co., 37 South. 134, 84 Miss. 339, 66 L. R. A. 453; Southern Pac. Co. v. Interstate Com. Com., 200 U. S. 536, 554, 26 Sup. Ct. 330, 50 L. Ed. 585. But this principle and these authorities leave the question whether or not this contract was prohibited undecided. The decisions in the early cases of Pond-Decker Lumber Co. v. Spencer, 30 C. C. A. 430, 86 Fed. 846, and Mobile & Ohio R. Co. v. Dismukes, 10 South. 289, 94 Ala. 131, 17 L. R. A. 113, to the effect that contracts for transportation at less than the established rates are valid and enforceable, have been called to our attention. But the rule that agreements by carriers, subject to the national acts to regulate commerce to transport property in interstate or foreign commerce for less than the legal filed and published rates are unlawful and void, has since been so conclusively established that it is no longer open to doubt or discussion. Gulf, etc., R. Co. v. Hefley, 158 U. S. 98, 105, 15 Sup. Ct. 802, 39 L. Ed. 910; Southern Ry. Co. v. Harrison, 24 South. 552, 554, 119. Ala. 539, 43 L. R. A. 385, 72 Am. St. Rep. 936; Texas & Pac. R. Co. v. Mugg, 202 U. S. 242, 245, 26 Sup. Ct. 628, ́50 L. Ed. 1011. It is true that in the cases last cited the contracts were made after the higher rates had been filed and published; but the El kins act declares the receipt of the concession from the rate filed and published after the execution of such a contract to be illegal in the same terms as it does that from a rate filed and published before the contract is made, since it declares the receipt of every concession from the filed and published rate illegal. Counsel concede that the carrier and shipper can make no contract that would not be subject to a change in the rate by Congress or by the finding of the Interstate Commerce Commission; but they contend that this agreement was valid at its execution, because it stipulated for the maintenance of the rate then established, that the right of the carrier to raise that rate on 10 days' notice was a privilege which it might waive, that by its agreement to maintain the established rate until December 31, 1905, it waived this privilege until that time, that there is no prohibition in the acts of Congress of a contract to maintain a lawful rate for a reasonable time, that the legal effect of the agreement was to give, not only to the defendant, but to all persons similarly situated, the established rate of June 17, 1905, until December 31st in that year, and that this constituted a lawful contract. If all this were conceded, it would not destroy the baleful effect under the law of the breach of this contract and of the filing and publishing of the higher rate by the carrier. The denunciation as illegal of the giving and of the receiving of a less rate than that so filed and published would still remain. If the legal effect of the agreement was to give all shippers similarly situated the established rate of June 17, 1905, yet that agreement was secret, it was not filed and published, nor was the rate it specified, at the time of the shipment, so that it was not the established rate. The laws under which the Burlington company is incorporated and the acts of Congress under which it conducts its interstate and foreign commerce constitute a contract between it and the public, whereby the latter have granted to it certain powers which it may not renounce, and imposed upon it certain duties which it may not lawfully disable itself from performing. One of these powers is the authority to establish rates in accordance with the terms of the acts of Congress, and one of these duties is to publicly establish, maintain, and change these rates in compliance with the terms of the acts to regulate this commerce, and the carrier may not lawfully disqualify itself from fully discharging this duty by any contract with a private person or corporation. If such a contract as that in hand were valid, it could not deprive the carrier of its legal right under the acts of Congress to break the agreement and to raise its rates upon 10 days' notice, and the utmost effect of its breach would be to vest in the shipper a cause of action for the damages the latter might sustain. But the contention that the contract was valid, and that its performance was enforceable after the higher rates were filed and published, ignores a basic rule of the interpretation of agreements and a material part of the contract. That rule is that all laws in existence when an agreement is made necessarily enter into, and form a part of, it as fully as if they were expressly referred to or incorporated into its terms. Van Hoffman v. City of Quincy, 4 Wall. 535, 550, 18 L. Ed. 403; Rees v. City of Watertown, 19 Wall. 107, 121, 22 L. Ed. 72; Edwards v. Kearzey, 96 U. S. 595, 601, 24 L. Ed. 793; Seibert v. Lewis, 122 U. S. 284, 295, 7 Sup. Ct. 1190, 30 L. Ed. 1161; Southern Ry. Co. v. Bouknight, 70 Fed. 442, 446, 17 C. C. A. 181, 185, 30 L. R. A. 823. And the portion of the agreement ignored is the provision of the amended interstate commerce act (25 Stat. 855, 856 [U. S. Comp. St. 1901, p. 3154]) that carriers subject to it shall file and publish their rates, and that no advance shall be made in them except by filing and publishing the new rates after 10 days' notice, and the provision of the Elkins act, which declares the receipt of every concession from the filed and published rates illegal. When these provisions are read into this agreement, as they must be under the law, its true interpretation is not that the carrier thereby covenanted to renounce until December 31, 1905, its rate-making power over the articles shipped, vested in it by the public, but that it contracted to maintain the existing rate until December 31, 1905, unless that rate was sooner changed in compliance with these provisions of the acts of Congress. This is the rational construction of this contract, because it renders the maintenance of the agreed rate under it enforceable while it was legal, and unenforceable while it was unlawful. In opposition to these conclusions, counsel invoke the rules that in cases of doubt the interpretation which sustains and enforces a contract should be preferred to that which limits or destroys it, that a construction of a statute which works injustice or great inconvenience should be avoided in favor of a more reasonable interpretation if possible. They portray in vivid colors the great inconvenience, the intolerable restraint upon the freedom of contract, and the inevitable diminution of foreign commerce which will result from a decision that a common carrier may discharge itself from its contract to maintain a rate by changing it in compliance with the national legislation to regulate commerce. But the great purpose of this legislation is to destroy favoritism and to secure equality of rates to all. The authority of Congress, under its power to regulate commerce, to impose the necessary restriction upon the freedom of contract to accomplish this object, is no longer doubtful. It is to this end that carriers are required to file and publish their rates, that they are forbidden to change them except by filing and publishing the new rates after public notice, and that rebates, concessions, preferences, and discriminations are forbidden. If a carrier may lawfully make an enforceable contract with a shipper to maintain an established rate upon future shipments for a definite time, it may make such an agreement with a preferred patron, then file and publish an advanced rate, which will govern like transportation by others similarly situated, and the performance of its contract will give the concession and work the discrimination which the national acts to regulate commerce were enacted to prevent. All carriers may make similar agreements with their shippers and take like proceedings, and the national legislation against rebates, concessions, and discrimination will be futile. The acts of Congress may not be thus evaded. A contract between a carrier and a shipper engaged in interstate or foreign commerce to maintain a filed and published rate for a definite time excepts from |