34. United States v. Dan Pounds (district court, northern Alabama).— September 19, 1908, indictment returned for misuse of free pass. March 11, 1909, plea of guilty; fined $100.

35. United States v. Quaker Oats Company (district court, Vermont).— February 24, 1909, indictment returned for accepting rebates. May 25, 1909, plea of guilty; fined $1,500.

36. United States v. Standard Oil Company (district court, northern Illinois).-August 27, 1906, indictment returned for accepting concessions. March 10, 1909, verdict of not guilty rendered on second trial by instruction of the court.

37. United States v. Southern Pacific Company (district court, southern California).-June 1, 1908, indictment returned for giving rebates. October 1, 1909, plea of guilty; fined $1,000.

38. United States v. Southern Pacific Company (district court, southern California).-June 1, 1908, indictment returned for giving rebates (11 counts).. October 1, 1909, indictment dismissed.

39. United States v. Southern Pacific Company (district court, southern California).-June 1, 1908, indictment returned for giving rebates on shipments of hides from Arizona and New Mexico to Los Angeles. Plea of guilty to one count; fined $1,000.

40. United States v. Stearns Salt & Lumber Company (district court, western Michigan).—December 17, 1907, indictment charging receipt of rebates. December 1, 1908, fine of $10,000 on plea of guilty.

41. United States v. W. C. Stith (formerly traffic manager of Missouri Pacific Railway) (district court, Arkansas).-April 14, 1908, indictment returned for granting rebates. February 6, 1909, plea of guilty; fined $2,500.

42. United States v. Wisconsin Central Railway Company, Barton Johnson, and G. T. Huey (district court, Minnesota).-November 8, 1906, indictment returned for rebating by absorbing grain elevation charges. April 13, 1907, Wisconsin Central fined $17,000, Johnson fined $2,000, and Huey fined $1,000. March 15, 1909, judgment affirmed by circuit court of appeals, and fine paid.

DIGEST OF DECISIONS IN CRIMINAL CASES.

IN THE SUPREME COURT.

New York Central & Hudson River R. R. Co. v. U. S., 212 U. S., 481.

It was urged in this case that the Elkins Act is unconstitutional; that Congress has no authority to subject a corporation to a criminal prosecution for the wrongful acts of its servants; that to punish the corporation is in reality to punish the innocent stockholders and to deprive them of their property without opportunity to be heard, and therefore without due process of law. It was further urged that as no authority by the board of directors or stockholders for the criminal acts of the agents of the company in contracting for and giving rebates was proved, these acts could not be lawfully charged against the corporation.

These contentions were not sustained by the court. It was held that Congress has the power to make a corporation criminally liable, and that the Elkins Act in this respect is constitutional. It was also held that any acts assumed to be done under authority by its agents are the acts of the corporation.

United States v. New York Central & Hudson River Railroad Co., 212 U. S., 509.

The defendant participated in a joint rate which was not filed by it, but which was filed and published by the initial carrier. The defendant urged that, in view of this fact, it could not be punished for rebating from such rate. The court held that participation in a joint rate makes that rate the legal rate, whether it be published by the rebating carrier or not, and that the prosecution could be maintained. The judgment of conviction was therefore affirmed.

New York Central & Hudson River Railroad v. United States, 212 U. S., 500.

Here it was held that the Elkins Act applies to rebates paid after it went into effect, although such payment was in pursuance of an agreement and on shipments made prior to its enactment. The rate paid at the time of shipment was the legal rate, and the return of the rebate, after the enactment of the Elkins Act, was properly punishable according to its provisions.

Chicago & Alton Railway Co. v. United States, 212 U. S., 563.

This was a prosecution of the Chicago & Alton Railway Company for paying rebates to the Schwarzschild & Sulzberger Co., a packing house, at Kansas City, Kans. The rebates were paid in the guise of compensation for the use of tracks inside the packing-house plant. The decision of the Circuit Court of Appeals for the Seventh Circuit (156 Fed., 558) affirmed the judgment of conviction. The Supreme Court affirmed this decision without opinion.

IN THE CIRCUIT COURT OF APPEALS.

New York Central & Hudson River Railroad Company v. United States, 166 Federal, 267. (Circuit Court of Appeals, Second Circuit, December 15, 1908. Lacombe, Ward, and Noyes, circuit judges.)

The court held that the offense of failing to file a rate schedule with the Interstate Commerce Commission is committed in Washington, where the Commission has its office, and must, therefore, be prosecuted in the District of Columbia. The court in the district of the transportation has no jurisdiction of such prosecution. Section 6 of the present interstate-commerce act makes it unlawful for a carrier to engage in transportation unless its rates have been published and filed. It is now an offense to transport without a filed rate as well as to fail to file a rate. Under the statute as it now stands prosecutions for transporting without a filed rate may be instituted in any district through which the transportation may have been conducted.

The judgment of the district court of the western district of New York imposing a penalty for failure to file a rate was therefore reversed.

Wisconsin Central Railway Co. et al v. United States, 169 Federal, 76. (Circuit court of appeals, eighth circuit, March 15, 1909. Adams, Hook, and Amidon, circuit judges.)

In the absence of a published tariff the absorption of elevation charges is unjustifiable.

The presence of freight bills paid by the consignee in a claim for refund made by a consignor is sufficient evidence to go to the jury to show that the railway company knew that payment of freight bills on such shipments by such consignees was made for the account of consignor.

Atchison, Topeka & Santa Fe Railway Co. v. United States, 170 Federal, 250. (Circuit court of appeals, ninth circuit. Gilbert, Ross, and Morrow, circuit judges.)

A prosecution against a carrier under the Elkins Act for granting a concession from the established rate can not be maintained unless such a departure from the tariff is proved to have been willful. The conviction of the defendant for granting rebates on shipments of lime from Nelson, Ariz., to Los Angeles, Cal., was set aside and the cause remanded to the district court for a new trial. The court held that shippers are lawfully bound to pay published rates on the weight of property actually delivered after transportation, and that the carload rate should be applied to such weight actually delivered, even though it be less than a carload, if the full carload minimum was loaded at the point of origin of the shipment.

IN THE TRIAL COURTS.

United States v. Illinois Terminal Co., 168 Federal, 546. (Decided February 23, 1909.)

Here the defendant was indicted for participating in the transportation of property in interstate commerce without having filed or published its tariffs therefor.

The line of the defendant's railway is situated entirely within the State of Illinois. It participated in the transportation of property moving from the State of Indiana into the State of Illinois, and was, therefore, as much subject to the act to regulate commerce as it would have been if its line of railway actually extended over into other States.

Transportation in interstate commerce without having rates on file is an offense under the Hepburn Act, and may be prosecuted in any district through which the transportation passes.

United States v. Standard Oil Company, 170 Federal, 988. (District court northern district of Illinois. Anderson, district judge.)

In a prosecution against a shipper for receiving a concession from the published rates of a railroad company in violation of the Elkins Act, which involves shipments covering a number of years, there can

be no greater number of offenses than there were payments of freight in which concessions were granted and received, such receipt being the completion of the transaction which constitutes the offense.

In an indictment charging a shipper with having received from the railroad company a rebate or concession in violation of the Elkins Act, an averment that such railroad company established, published, and filed a rate between Chicago and St. Louis of 193 cents per hundred pounds is not sustained by proof that its schedules named only a rate over its own lines from Chicago to East St. Louis at 18 cents, and that the connecting lines between East St. Louis and St. Louis had filed a rate of 14 cents.

Upon the trial of an indictment against a shipper for the violation of the Elkins Act for receiving from the railroad company a rebate or concession whereby its property was transported in interstate commerce at a less rate than that named in the tariffs published and filed by such railroad company, it is essential for the Government to prove that such tariffs were posted at least in the depot, station, or office of the railroad company at the point of origin of such shipments, as required by section 6 of the act to regulate commerce.

United States v. Stearns Salt and Lumber Company, 165 Federal, 735.

The number of payments or settlements of rebates, not the number of shipments, determines the number of offenses which may be punished.

United States v. Bunch, 165 Federal, 736.

In the district court for the eastern district of Arkansas the defendant pleaded guilty to a charge of accepting and receiving certain rebates. The court held that in so far as it applies to the shipper, section 1 of the Elkins Act creates three distinct offenses: (1) The solicitation of a rebate, concession, or discrimination in respect to the transportation of property in interstate or foreign commerce. (2) The acceptance of any such rebate, concession, or discrimination. (3) The receipt of any such rebate, concession, or discrimination.

The court held that each shipment under agreement or promise of rebate might be pleaded as a separate offense and prosecuted as such under that provision of the act which prohibits the acceptance of a concession or rebate. When the receipt of a rebate is charged, however, the unit of the offense is not the shipment but the payment. In the case before the court, therefore, the number of offenses charged was limited by the number of payments of rebates. Three offenses being shown, a fine of $15,000 was imposed.

United States v. Pacific Mail Steamship Company. (District court, northern district of California, Apr. 22, 1909.)

The defendant demurred to the indictment on the ground that ocean carriers to nonadjacent foreign countries are not subject to

the provisions of the act to regulate commerce. The demurrer was sustained upon the authority of Cosmopolitan Shipping Co. v. Hamburg-American Packet Co., et al., 13 I. C. C. Reports, page 266.

United States v. Southern Pacific Company. (District court, northern district of California, Apr. 22, 1909.)

A carrier by rail which establishes and files a joint rate in conjunction with a steamship line plying between the United States and a foreign country nonadjacent is bound to observe such rate so long as it remains in force. A demurrer to an indictment charging a departure by the railroad from the published joint rate on shipments from Kobe, Japan, to Springfield, Ohio, by way of San Francisco, Cal., was overruled.

SUITS BY CARRIERS TO ANNUL ORDERS OF COMMISSION.

In its last report the Commission stated that 17 suits had been filed in various courts to set aside its orders. It further stated:

All these cases are proceeding under the expediting act. Several of them are before the Supreme Court of the United States for argument already, and the rest will be at once taken there. It is believed that the decisions of that court in these cases must go far toward determining the effectiveness of the present act, and, indeed, the possibility of any effective railway regulation under the present Constitution of the United States.

It was the expectation when that paragraph was written that before the making of another report decisions in most of the pending cases would have been obtained from the court of last resort and that these decisions would have so clarified the legal atmosphere as to make it possible to see what had been done and what could be done. In point of fact, only a single case has been decided by the Supreme Court of the United States. Between October 12 and October 15 five cases were argued and submitted to that court, namely, Chicago & Alton Railroad Co. v. Interstate Commerce Commission, Illinois Central Railroad Co. v. Same, Baltimore & Ohio Railroad Co. v. Same, all involving, in various aspects, the distribution of coal cars; Southern Pacific Co. v. Interstate Commerce Commission, involving rates on lumber from the Willamette Valley to San Francisco, and Stickney v. Interstate Commerce Commission, involving the terminal charge for delivery of live stock to the Union Stock Yards at Chicago. On November 29 the court handed down an opinion in the last-named

case.

Decisions have been rendered by the circuit court in six cases under the expediting act during the year. Several of the cases decided are of general interest, and deserve special reference.