Imágenes de páginas
PDF
EPUB

"That if any common carrier subject to the provisions of this act shall, directly or indirectly, by any special rate, rebate, drawback, or other device, charge, demand, collect or receive from any person or persons a greater or less compensation for any service rendered, or to be rendered, in the transportation of passengers or property, subject to the provisions of this act, than it charges, demands, collects or receives from any other person or persons for doing for him or them a like and contemporaneous service in the transportation of a like kind of traffic under substantially similar circumstances and conditions, such common carrier shall be deemed to be guilty of unjust discrimination, which is hereby prohibited and declared to be unlawful."

To compel strict adherence to the mandate of Congress the Elkins act was subsequently passed, section 1 of which says:

"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 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, 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."

The Rutland Indictments.

The indictments (Nos. 420, 422) charge the defendants, Standard Oil Company of New York and Vacuum Oil Company, with having knowingly received from the Pennsylvania Railroad Company, a corporation subject to the provisions of the interstate commerce act. concessions whereby certain shipments of petroleum from Olean, in the state of New York, to Rutland, in the state of Vermont, were transported at a less rate than that named in the tariff of rates established by such carrier as prescribed by said act. It is alleged that from January 1, 1904, to May 1, 1905, said carrier was engaged in the transportation of property from Olean, N. Y., to Genesee Junction, N. Y., under a common arrangement with the New York Central & Hudson River Railroad Company, the Boston & Maine Railroad Company, and the Rutland Railroad Company for a continuous or through shipment to Rutland, Vt., and kept open for public inspection and had filed with the Interstate Commerce Commission its established tariff of rates for transporting petroleum at 19 cents per 100 pounds from Olean to Rutland by the said route; that, while such rate was in force, the Pennsylvania Railroad Company transported petroleum in tank cars for the defendants from Olean to Rutland, over another route, the Pennsylvania Railroad Company, the New York Central & Hudson River Railroad Company, and the Rutland Railroad Company, at the tariff rate of 16.1 cents per 100 pounds; that such shipment was under a common arrangement between said three railroad companies for a through and continuous shipment from the point where the commodity was placed in the cars; that such shipment was accompanied by shipping orders indicating the distances and manner of transportation.

The defendants demur to the indictments on the grounds that the offense is not sufficiently described therein, and that the facts stated do not constitute a crime, and urge numerous objections attacking the validity thereof. It is claimed that the indictments do not charge the

character and description of the published tariff of rates-that is, whether the rate was for shipments in car load lots or in cars supplied by the shipper-that shipments were ever made at the 19-cent rate from Olean to Rutland; that the rate paid was not published and filed as required by the act; that the tariff charges paid were not the established rates between the termini specified in the indictment; that such rate was not known or open to all shippers; and, finally, that the indictment is defective, in that it fails to charge that the 16.1 rate was made by the Pennsylvania Railroad Company at the request of the defendant.

The principal objection is that the fact that the defendants received a less rate by one route between two stated points than that in force between the same termini over a different route does not constitute a concession; and in support of this proposition defendants cite Interstate Commerce Commission v. Alabama & Midland Ry. Co., 168 U. S. 144, 18 Sup. Ct. 45, 42 L. Ed. 414, and Atchison, Topeka & Santa Fé R. Co. v. Denver & N. O. R. Co., 110 U. S. 667, 4 Sup. Ct. 185, 28 L. Ed. 291. In the first-mentioned case the Supreme Court construed section 2 of the act of 1887, holding it of sufficient scope to compel equality between shippers over the same line and to prohibit any rebate or other device by which freight is transported by a different shipper at different rates for the same distances over the same line; the circumstances and conditions not being dissimilar. Apparently the gist of the decision is found in the statement of the court that the words under substantially similar circumstances and conditions" in section. 2 are inapplicable to competing lines, but are restricted to matters of carriage. In the latter case the question related to charging different rates over different routes between similar points where connecting arrangements have been made for joint carriage. The court held that the Constitution of the state of Colorado forbidding discrimination in rates was not violated by the railroad company refusing to give a connecting road the same arrangement as to through rates as those given to another connecting line; the conditions as to the transportation being substantially alike in both cases. These cases are not helpful to a decision of the proposition under consideration.

Before proceeding further in the consideration of the objections raised by the demurrers, an answer to the inquiry, Who are amenable to the interstate commerce act? may simplify the discussion by the court. Concededly two classes of carriers come within its scopecarriers engaged in interstate commerce having independent facilities for through carriage from a point in a state to a point in another state and carriers which have entered into a compact establishing a joint. traffic rate, the shipments being interstate over through or continuous lines. The defendants claim that a common carrier subject to the provisions of the act which has established a joint traffic arrangement does not offend against the statute if the property is carried between termini over another and different connecting route; that section 6 of the act of 1887, read in connection with section 2 thereof, relates specifically to common carriers having through lines. To enforce this point reference is made to that portion of section 6 which reads:

"And in cases where passengers and freight pass over continuous lines or routes operated by more than one common carrier, and the several common carriers operating such lines or routes establish joint tariffs of rates or fares or charges for such continuous lines or routes, copies of such joint tariffs shall also, in like manner, be filed with said commission."

And the following provision:

"It shall be unlawful for any common carrier, party to any joint tariff, to charge, demand, collect or receive from any person or persons a greater or less compensation for the transportation of persons or property, or for any serv ices in connection therewith, between any points as to which a joint rate, fare or charge is named thereon than is specified in the schedule filed with the Commission in force at the time."

At the argument emphasis was laid by counsel for the defendants upon the words "for any service in connection therewith between any points as to which a joint tariff is named thereon," as indicating that there must be a deviation from joint tariff rates on the established route, as distinguished from a shipment of property over any connecting road for which no joint tariff arrangement has been published and filed. The contention for such an interpretation of sections 2 and 6 is thought to be clearly answered by the provisions of the Elkins act. which, in unambiguous terms, is declaratory of the illegality of giving or accepting any concession or discrimination in respect to the interstate shipment of freight whereby the result therein forbidden is accomplished. If the claim of the defendants upon this point were to prevail, a carrier having other connecting facilities may conform to the provisions of the statute when it chooses, and remain at liberty to exact the established joint rate from one shipper and transport the goods interstate of a more favored shipper at a cheaper rate over another connecting line or route. The initial carrier, possessing facili ties for connecting with different routes to transport the petroleum in question, undoubtedly could ignore the established rate and carry such commodity over any connecting route, but it could not, within the intent and spirit of the interstate commerce act, charge or exact in arrangement with such connecting lines a less sum or rate for transportation than that which had been established. In other words, the initial carrier, when it has once established a joint traffic compact to transport property over a certain route between points in different states, cannot transport over any connecting route pursuant to traffic arrangement at a less rate than that published and filed in conformity with the tariff act. If the contention of the defendants is sound, the intent of Congress is not expressed in the act, the remedial purpose of the statute is defeated, and its provisions would secure to favored shippers the intolerable advantages and discriminations which it was enacted to prevent. The intent of Congress must be ascertained from a consideration of the entire act. The evil sought to be remedied must always be considered, and in the act to regulate commerce the desideratum was the eradication of such evil practices as resulted in the carriage interstate of goods belonging to powerful interests of industries to the detriment of less favored shippers. The decision of the Supreme Court in New York, N. H. R. Co. v. Interstate Commerce Commission, 200 U. S. 361, 26 Sup. Ct. 272, 50 L. Ed. 515, bears upon

he scope of the enactment. There the question was whether a carrier ngaged in interstate traffic and also a dealer in the merchandise trans>orted comes within its provisions. It was urged that as the act did 1ot expressly forbid carriers becoming dealers in the commodity trans>orted by them the enforcement of its requirements would result in rohibiting a carrier from becoming such dealer. But the Supreme Court stated:

"Because no express provision against a carrier who engages in interstate ommerce becoming a dealer in commodities moving in such commerce is ound in the act, it does not follow that the provisions which are expressed in hat act should not apply and be given their lawful effect."

The court held that, even though compliance with the act necessitated I discontinuance of the mercantile pursuit in which the carrier engaged, it nevertheless could not be relieved from the operation of the tatute. Applying this principle to the cases under consideration, the act that the indictments do not specify whether the shipments were in ars furnished by the shipper, or, in view of the published tariff of rates, hat such shipments may not consist of the sum of the locals, is thought mmaterial, and the omission to allege such facts will not enable the Accused to escape liability for the accomplishment of the prohibited esult. In my opinion if a railroad company has entered into an rrangement with connecting carrier companies to transport property na through line between two points situated in different states, harges for transportation being agreed upon, and copies of such oint tariff of rates being filed and published in conformity with the rovisions of the act, the initial carrier, intending to evade the prorisions of the act by which a uniformity of rates to all shippers is stablished, cannot legally transport property at a less rate over ther connecting roads between the same termini. Such I conceive vas also the decision in United States v. Standard Oil Company (D. 2) 148 Fed. 719. Upon this point Judge Landis vigorously states: "It is written in every section and line of the law that the thing sought by bongress was a fixed rate, absolutely, unvaryingly uniform, to be adhered to Etil publicly changed in the manner provided by law. The thing prohibited as the departure from that rate by any means whatsoever, whether direct etween the parties or indirect by the employment of the most deviously ciraitous subterfuge."

It is true that the established rate may be increased or decreased nd other arrangements for continuous carriage of merchandise may e entered into, but this can only be done upon compliance with the rovisions of the act relating to a joint tariff compact and publication f change in rates.

The point that section 6 does not require the publication and filing f a joint rate, but relates only to the initial carrier's line, and that the ndictment is defective because it does not specifically charge such reirement, is untenable. The allegations in the indictments that the ariffs were published and filed as required by law would seem to stify the presumption that such publication and filing were pursuant o the direction of the Interstate Commerce Commission. The next point is that the conditions of the shipments complained of vere dissimilar; that the published rate was for less than car loads

or in special cars furnished by the shipper. This question is thought to be a matter of defense, and may await the trial of the case.

It is further urged that no shipper is named in the indictment who was required to pay a different rate over the so-called "Norwood Route.' This omission is not thought to be a defect in pleading. In United States v. Hanley (D. C.) 71 Fed. 672, cited by defendants the indictment charged discrimination between shippers, and it was held that the indictment must allege that some other person designated in the indictment had been charged a higher rate. The court sub stantially stated that the crime of unlawful discrimination under sec tion 2 of the act necessarily involved two shipments, one of which fared better than the other, when both should have fared alike; the character of the shipments not being dissimilar. It will be observed that the proposition with which we are here concerned is not whether the defendants have been benefited by an unjust discrimination as against other shippers over the same route, but have the defendants been given a concession from the published tariff rate, a rate of which the public is presumed to have knowledge and upon which other shippers of petroleum have a right to place reliance. The word "concession" does not appear in the earlier acts to regulate commerce but is used for the first time in section 1 of the Elkins act, which is apparently a "catchall" provision for any practice by either carrier or shipper which by any device whatever would tend to defeat the purpose of the law. The term "concession" does not necessarily imply that the shipper solicited a concession or privilege which the carrier could give. The statute is clearly violated if the defendant has accepted or received any concession or discrimination which resulted in the carriage of the freight in question at a less rate than that established under the act. If, notwithstanding the published rate, there was in fact no concession given or there was no legal departure from the published rate, the defendants cannot complain of unjust treatment if they are required to prove the fact upon the trial. Nor, in my judgment, was it necessary to allege in the indictment that a ship ment at the 19-cent rate was actually ever made. The legal rate according to the indictment was published and filed, and, as alread stated, shippers of freight are presumed to have derived their knowl edge of freight rates between the points in controversy from suc publication. The presumption that the asserted sum of the local rate paid was duly published or filed is not warranted because th failure to publish such rate is not affirmatively set forth in the indic ment. It is not controverted that there are occasions when a rea sonable departure in rates is permissible, as, for instance, when th conditions of shipment are essentially different, but whether the ci cumstances and conditions of the shipment permitted the carrier charge a less rate than that published and filed is not a question f present determination. It does not follow as a matter of law th because the indictment alleges that the commodity was transported a car owned by the Union Tank Line, or that the shipment was bulk, that such conditions and circumstances warranted a rate le than the established rate or were such as to exonerate the accused fro responsibility. It follows from what has been said that a prima fac

« AnteriorContinuar »