force, however long a time it may occupy. Where such an act or series of acts runs through several jurisdictions, the offense is committed and cognizable in each. Wharton's Criminal Pleading & Practice (9th Ed.) §§ 473, 474; People v. Sullivan, 33 Pac. 701, 702, 704, 9 Utah, 195. The transportation of the goods in this case into and through the Western district of Missouri, at the illegal through rate, was the continuing operation and effect in that district of its primary cause, the receipt of the concession and the delivery of the oil by the shipper to the carrier thereunder for transportation in foreign commerce, and even if the shipper's offense was complete in Kansas, it may have been committed in Missouri also, where its operation continued and took effect.

Nor did the fact that no concession was charged or proved from the part of the established rate proportionate to the carriage through the Western district of Missouri extract from that part of the transportation the vice of illegality. The entire transportation from Kansas City to New York was procured by the packing company by accepting a single unlawful concession from that part of the through established rate proportionate to the carriage east of the Mississippi river, but the transportation from Kansas City to New York, and the rate paid there for, were each single, undivided, and through, and the vice of the illegality in any part of either was unavoidably a vice in the whole and every part of it, so that the carriage into and through the Western district of Missouri under this entire unlawful through rate was as illegal as the transportation over any other part of the

route.

Counsel invoke the sixth article of amendments of the Constitution and the inviolable rule of the common law that every accused person shall enjoy the right to a trial in the jurisdiction in which the offense. was committed, and the court freely concedes and confirms the position that, if the offense of the packing company was not committed in the Western district of Missouri, the court below was without jurisdiction of this case, and its judgment must be reversed. If the offense was not there committed, the Congress was undoubtedly without power to make it there judicable. They cite: U. S. v. Fowkes, 3 C. C. A. 394, 398, 53 Fed. 13, 17, in which a railroad. claim agent in Philadelphia was indicted in Missouri for charging, and receiving from a shipper for the transportation of goods from Philadelphia to Missouri, less than the established rates under the tenth section of the act to regulate commerce approved February 4, 1887 (chapter 104, 24 Stat. 382 [U. S. Comp. St. 1901, p.-3161]), and an application was made to the court in Pennsylvania for his removal to Missouri for trial on the ground that his case was triable there, under section 731 of the Revised Statutes [U. S. Comp. St. 1901, p. 585], because his offense was begun in the Third circuit and completed in the Eighth circuit, although nothing was done in the latter, save that the transportation was there completed, and the court held that the offense was commenced and finished in the state of Pennsylvania and that the court in Missouri was without jurisdiction of it. Davis v. U. S., 43 C. C. A. 448, 104 Fed. 136, in which the defendant was indicted in Texas for committing the fraud of

obtaining by false billing and false representation at Cincinnati in the state of Ohio the transportation of goods from that city to Dallas, in the state of Texas, at less than the established rates, in violation of section 10 of the interstate commerce act, as amended by Act March 2, 1889, c. 382, 25 Stat. 858 [U. S. Comp. St. 1901, p. 3160] and an application for his removal to Texas for trial was presented to the court in Ohio on the ground that the offense was begun in that circuit and ended in the Fifth circuit, under section 731, although nothing occurred in the latter but the completion of the transportation, and the Circuit Court of Appeals of the Sixth Circuit held that the fraud was begun and completed in Cincinnati, and that the offense was not judicable in Texas. Judge Day, now Mr. Justice Day of the Supreme Court, in delivering the opinion of the court, said of the provision, amendatory of the act, denouncing the fraud of false billings: "It is not the transportation of the goods which is prohibited and punished, but the obtaining of the transportation by means of false and fraudulent conduct, which is the gist of the offense. What is it, then, to obtain transportation in the sense of this statute? We think that false billing or other misrepresentation of the goods, as stated in the act, which results in their being received by the carrier under a contract of carriage thus fraudulently obtained, is the obtaining of transportation within the meaning of the statute. Then the fraudulent conduct of the shipper has borne its fruit, and every act and intent which constitutes the offense is complete." 43 C. C. A. 451, 104 Fed. 139. But he also said: "If the carriage of the goods was the thing aimed at in this statute, and such was to have been deemed fraudulent per se, the crime might be regarded as a continuing one." Page 453 of 43 C. C. A., page 142 of 104 Fed. In re Belknap (D. C.) 96 Fed. 614, 616, in which, on an indictment for a violation of the same paragraph of the statute, the District Court of Kentucky reached the same conclusion. U. S. v. Conrad (C. C.) 59 Fed. 458, 462, 463, where the court held that the offense of depositing a lottery ticket or sending it in the mails is complete in the district in which it is deposited or sent, and is not indictable in the district where it is delivered; but that the offense of delivering it by mail may be prosecuted in the district in which it is delivered to the addressee. Dealy v. U. S., 152 U. S. 539, 547, 14 Sup. Ct. 680, 38 L. Ed. 545, in which the Supreme Court held that the offense of conspiracy is complete where the conspiracy is formed, although the overt act is done elsewhere, and many cases in which statutes of states which by their terms authorized the indictment and trial of offenses, which were not continuing, in jurisdictions in which they were not committed, have been held unconstitutional and void. Ex parte Slater, 72 Mo. 102; State v. McGraw, 87 Mo. 161; State v. Hatch, 91 Mo. 568; State v. Anderson, 191 Mo. 134, 144, 145, 90 S. W. 95; Craig v. State, 3 Heisk. (Tenn.) 227; State v. Smiley, 98 Mo. 605, 12 S. W. 247; Dempsey v. State, 22 S. E. 57, 94 Ga. 766; Dougan v. State, 30 Ark. 41; Armstrong v. State, 41 Tenn. 339; Swart v. Kimball, 43 Mich. 443, 5 N. W. 635; Kirk v. State, 41 Tenn. 345; State v. Denton, 46 Tenn. 539; Wheeler v. State, 24 Wis. 52.

14 S. W. 502.

1

On the other hand, in Re Palliser, 136 U. S. 257, 267, 10 Sup. Ct. 1034, 34 L. Ed. 514, in which the offense was an offer of money or a tender of a contract for the payment of money, contained in a letter mailed in New York and addressed to a postmaster in Connecticut to induce him to violate his official duty, the Supreme Court said:

"But there can be no doubt at all that, if any offense was committed in New York, the offense continued to be committed when the letter reached the postmaster in Connecticut, and that, if no offense was committed in New York, an offense was committed in Connecticut."

And in Re Huntington (D. C.) 68 Fed. 881, and in Griffee v. Burlington, etc., R. R. Co., 2 I. C. C. R. 301, it was held that the offense of giving an undue preference or advantage to a particular person, in violation of section 3 of the interstate commerce act (24 Stat. 380, c. 104 [U. S. Comp. St. 1901, p. 3155]) was not complete where a free pass had been delivered, unless there was also actual transportation upon the pass.

The opinions in these numerous cases are instructive and interesting; but they are neither controlling nor very persuasive upon the issue it is necessary for us to determine here, because none of the courts which delivered them considered or treated of the act or of the offense here under consideration, and arguments by analogy should always be indulged with caution. In the light of these authorities, two questions condition the jurisdiction of the court below: Was the offense here charged a continuing crime? If it was not, was the actual transportation of the goods an indispensable element of the offense? We turn to the Constitution and to the acts of Congress for the answers. The act which denounces this offense was passed in 1903, six years after the offense of the giving of concessions from the lawful rates by carriers had been created, and four years after the offense of fraudulently obtaining transportation by shippers at less than the regular rates by false representations was established. It was enacted under the power to regulate commerce with foreign nations and among the several states granted to the Congress by article 1 of section 8 of the Constitution. The subject of the act was that part of this commerce which consisted of the transportation of property in it. Its object was to regulate this transportation. There is, there can be, no doubt that the Congress had plenary power, under this commercial clause of the Constitution, to prohibit the transportation of property in interstate or foreign commerce at any less rates than those filed and published under the interstate commerce act of 1887 and its amendments, to make such transportation a continuing crime, to prescribe the penalty for it, and to give to every federal court which had jurisdiction of crimes through whose district any part of this transportation is conducted. complete jurisdiction to try, and, if convicted, to punish any person or corporation charged with it. Has the Congress exercised this power? It enacted that:

"It shall be unlawful for any person, persons or corporation to offer, grant or give or to solicit, accept or receive any rebate, concession or discrimination in respect of 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 de

vice whatever be transported at a less rate than that named in the tariffs published and filed by such carrier, as is required by said act to regulate commerce and the acts amendatory thereto, or whereby any other advantage is given or discrimination is practiced. * * Every violation of this section shall be prosecuted in any court of the United States having jurisdiction of crimes within the district in which such violation was committed or through which the transportation may have been conducted." 32 Stat. c. 708, p. 847 [U. S. Comp. St. Supp. 1905, p. 599].

The offense of the shipper here charged is receiving a concession whereby any property in interstate or foreign commerce shall be transported at less than the legally established rate. Every part of the transportation thus caused is unavoidably violative of this act and illegal, and is necessarily the continuing operation and effect of the unlawful receipt of the concession whereby the carriage is induced. The last clause of the portion of the act quoted above, which, in addition, to the court in whose district the violation of the act is committed, confers jurisdiction upon every other court of the United States, which has criminal jurisdiction, through whose district the transportation is conducted, is unconstitutional and void if the offense is not a continuing crime, but valid and effective if it is, and that construction which validates and sustains must be preferred to that which strikes down and paralyzes so plain a provision of a statute. The transportation of the property in the case in hand from Kansas City to New York into and through the Western district of Missouri at a through rate less than that established under the law was the continuing operation and effect of the receiving of the concession and the delivery of the property thereunder by the shipper. These considerations convince that the Congress intended to make, and that by the provision of the act quoted it did make, the offense here charged a continuing crime indictable and punishable in every federal court having jurisdiction of crimes through whose district the illegal transportation is conducted, that the offense in this case is of this nature, that, if the charge in the indictment is true, this offense continued in the illegal transportation it produced into and through the Western district of Missouri, so that it was there committed, and that the court below had jurisdiction of this offense and of the packing company that was charged with its commission. This conclusion renders it unnecessary to determine whether or not the transportation is an indispensable element of the offense in the district in which the concession is received and the goods are delivered to the carrier. But the fact is noted in passing that the giving or receiving of a concession, whereby property is transported at a less rate than that established, is not the only offense created by this act, but also the giving or receiving any concession whereby "any other advantage is given or discrimination is practiced."

2. The concession denounced by the Elkins act is one whereby property in interstate or foreign commerce is transported at a less rate than that required to be filed and published by the amended interstate commerce act of 1887. One of the positions of counsel for the packing company is that no offense was charged or proved against it in this case because railroad rates in the United States upon property in foreign commerce transported from places in the United States to ports of transhipment and thence to foreign countries under through bills of

lading are not required to be filed or published under the act of 1887, and that, if that act contains such a provision, it is violative of article 1, § 9, par. 5, of the Constitution.

In Texas & Pac. Ry. Co. v. Interstate Commerce Commission, 162 U. S. 197, 211, 16 Sup. Ct. 666, 40 L. Ed. 940, the Supreme Court said of this statute:

"The scope or purpose of the act is, as declared in its title, to regulate commerce. It would, therefore, in advance of an examination of the text of the act, be reasonable to anticipate that the legislation would cover, or have regard to, the entire field of foreign and interstate commerce, and that its scheme of regulation would not be restricted to a partial treatment of the subject. * ** Addressing ourselves to the express language of the statute, we find, in its first section, that the carriers that are declared to be subject to the act are those 'engaged in the transportation of passengers or property wholly by railroad, or partly by railroad and partly by water when both are used, under a common control, management or arrangement, for a continuous carriage or shipment, from one state or territory of the United States, or the District of Columbia, to any other state or territory of the United States, or the District of Columbia, or from any place in the United States to an adjacent foreign country, or from any place in the United States through a foreign country to any other place in the United States, and also to the transportation in like manner of property shipped from any place in the United States to a foreign country and carried from such place to a port of transhipment, or shipped from a foreign country to any place in the United States and carried to such place from a port of entry either in the United States or an adjacent foreign country.' It would be difficult to use language more unmistakably signifying that Congress had in view the whole field of commerce (excepting commerce wholly within a state), as well that between the states and territories, as that going to or coming from foreign countries. In a later part of the section, it is declared that 'the term transportation shall include all instrumentalities of shipment or carriage.'' Page 212 of 162 U. S., page 672 of 16 Sup. Ct. (40 L. Ed. 940).

The second, third, and fourth sections of the act forbid unjust discrimination, unreasonable preference, the receipt of greater conpensation for a shorter than for a longer haul by carriers engaged in inland transportation of property in foreign commerce as well as in in

terstate commerce.

The first sentence of the sixth section reads:

"That every common carrier subject to the provisions of this act shall print and keep for public inspection schedules showing the rates and fares and charges for the transportation of passengers and property which any such common carrier has established and which are in force at the time upon its railroad, as defined by the first section of this act."

The first section of the act defines and subjects to its provisions the transportation by rail, and by rail and water combined, of property in foreign commerce shipped from any place in the United States to a foreign country and carried from such place in the United States to a port of transhipment, or shipped from a foreign country to any place in the United States and carried to such place from a port of entry. And it expressly provides that all the provisions of the act shall apply to any common carrier engaged in such transportation and to every instrumentality thereof. It is contended that, although the act may apply to the carriage of property in foreign commerce when consigned from a place in the United States to the port of transhipment for export, to be there again consigned to its destination in the