1905, in which the Burlington railway agreed, with other connecting railways, to carry packing-house products from the Missouri river to Germany, billed via New York; that the rate agreed upon included a rate of twenty-three cents a hundred pounds between the Mississippi river and New York; that while this contract was in existence the Burlington railway filed with the Interstate Commerce Commission an amended tariff of thirty-five cents on these products from the Mississippi river to New York; and that the defendant continued to accept the twenty-three-cent rate after August 6, 1905, when the alleged offense was committed.

"The Constitution of the United States gives Congress the power to regulate commerce between the States and with foreign nations. And in the exercise of this power Congress did enact the two statutes of February 4, 1887, and of February 19, 1903, the last being amendatory of the former.

"And the court charges you that in carrying the products from Kansas City, Kan., in and through this division and district to the Atlantic seaboard ports, to be loaded there on vessels and carried to European ports, such commerce was with foreign nations and was such commerce as is referred to and covered by the two enactments of Congress mentioned. In this case the defendant packing company was both the shipper and the consignee. And in making such shipment from Kansas City, Kan., to, within, through and beyond this division and judicial district to an Atlantic seaboard port, to be there placed upon an ocean vessel to be carried to a European port, both the defendant packing company, the Burlington company and the connecting lines of railroad, each and all are amenable to the two statutes in question. And if the law has been violated in the facts in evidence under the indictment herein, then this court has jurisdiction to hear and determine the case and render such judgment as your verdict and justice requires.

"And if such shipment of such packing-house products were made from Kansas City, Kan., to the European ports as a through shipment, consigned by the defendant packing company at Kansas City, Kan., to itself at the European port, and this fact was so known by the defendant when it made the shipment, and if this fact was so known at the time by the Burlington company when it received the product, and in turn each of the connecting lines of the railroad and the steamship company knew such fact when receiving such product, then it is not controlling that the receipts, contracts, writings or bills of lading were through contracts or bills of lading.

"It is important for you to determine whether the concession of twelve cents per hundred after August 6 from the rates covered by the schedules then on file with the commission was the result of a device and whether done with guilty intent. It must have been, before you can convict, the result of a device and with a guilty intent, because if the shinner did not know it was receiving concessions and did not have a guilty intert ro crime would be

CONCESSIONS

OVERLAPPING CONTRACTS.

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committed. As to device, is meant that which is devised or formed by design, a contrivance, a project, a scheme to deceive, a strategem or an artifice." (United States v. Armour Packing Co. et al. U. S. Dist. Court, Eastern District of Missouri, June 12, 1906.)

§ 24. Criminal Liability Concessions - Overlapping Contracts. The Elkins Act renders the person or corporation who receives a rebate liable in the same manner as a person who solicits or accepts such rebate. Criminal proceedings were instituted against both the carrier and the shipper for a violation of the Elkins Act with regard to giving and receiving rebates. The cases were tried before Judge McPherson in Kansas City, Mo., in June, 1906. The shippers were tried first and convicted. See United States v. Armour Packing Co., supra. The carrier, to wit, the Chicago, Burlington and Quincy Railroad Company was also found guilty upon the same charge upon which the shippers were convicted, namely, for accepting a rate of twenty-three cents per 100 pounds on shipments of lard consigned to Germany via the Burlington railway, after the legal rate was increased to thirty-five cents per 100 pounds. The railroad company contended that the charge was legal because it had made a contract with the shippers to carry for twenty-three cents per 100 pounds, which contract did not expire until the 31st day of December, 1905, although on the 6th of August, 1905, prior to the expiration of said contract the tariff rates were increased from twenty-three cents per 100 pounds to thirty-five cents per 100 pounds. The carrier claimed, therefore, that upon this overlapping contract it had a right to continue to charge but twenty-three cents per 100 pounds. The railroad company claimed that it had a joint rate under its contract with the Clover Leaf and Lehigh Valley railroad to carry the packing-house products at a rate which would have been valid had it been published. They argued that the only crime committed, if any, was the failure to publish the tariff under the contract, while the indictment charged that the defendant granted a concession from a portion of a through rate. That if a concession was made at all it was on the entire or through rate

and reduced the through rate, the amount of such concession, but did not and could not be offered to any fractional part of the through rate. Defendants claimed that the Burlington railroad kept its contract, which was made in good faith and kept in good faith and that, therefore, it was not guilty of giving a rebate as charged in the indictment but was guilty only of failure to publish and file its tariff rate. The United States district attorney answered this contention by saying that the facts disclosed a clear violation of the Elkins Act, because the Burlington Railroad Company had made a contract with the packing company at the rate of twenty-three cents per 100 pounds and had continued to live up to that contract after there had been filed with the Interstate Commerce Commission an amended tariff of thirty-five cents. Judge McPherson charged the jury that the defendant, the Burlington Railroad Company, had no right to make a contract for a period longer than the established rate of twentythree cents should be in force. That by carrying shipments for twenty-three cents after August 17, 1905, when the tariff was raised to thirty-five cents, was, as matter of law, a concession for which the railroad company was liable under the indictment, and that the failure of the company to file the schedule of twenty-three cents was wholly immaterial. Defendants were convicted. (United States v. Chicago, Burlington & Quincy Ry. Co., tried June 13, 1906.)

VI. COMMERCE ACT-MANDAMUS.

§ 25. Mandamus- Effect of New Legislation as to.The Interstate Commerce Act was designed to regulate the conduct of the carrier, and to protect the interest of the shipper. In many instances the carrier succeeded in securing unjust preferences in favor of particular shippers, by allowing the use of cars and terminal facilities to those favored, to the exclusion of other shippers. In order to remedy this evil, Congress, by the act approved March 2, 1889, added section 23 to the Commerce Act, thereby giving to the shipper an additional summary and effective remedy by writ of mandamus, to compel the carrier to move

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interstate traffic upon equal term to all shippers similarly situated, and to furnish all shippers alike with cars or other "facilities for transportation." Section 1 of the act defines "transportation" as including "all instrumentalities of shipment or carriage." This section was amended by the act approved June 29, 1906, so as to include in the term. railroad" not only bridges and ferries, but "all switches, spurs, tracks, and terminal facilities of every kind used or necessary in the transportation of persons or property, freight depots, yards, and grounds used or necessary in transportation or delivery of property." The term "railroad," under the amendment, includes "cars and other vehicles, and all instrumentalities and facilities of shipment or carriage." Transportation, the amendment declares, must be furnished by the carrier "upon reasonable request therefor." Section 3 of the act commands the carrier to furnish "equal facilities" for interchange of traffic. Spur tracks, sidings, and switches, under the 1906 amendment, are now expressly included in the terms "transportation" and "terminal facilities" and were designed doubtless to furnish a remedy for such treatment as the shipper received, as shown in the case of Harp v. Choctaw Railroad, 125 Fed. Rep. 445, C. C. A. Eighth Circuit, October, 1903, and for which the court could find no remedy. For a report of this case, see der's Interstate Commerce Act," page 76.

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§ 26. Mandamus — Jurisdiction of Federal Court as to.— Congress has power to authorize a Circuit Court of the United States to issue a writ of mandamus in an original proceeding. In order to confer power to issue such a writ, the act must be clear and explicit, and will not be construed into the act, and the authority will not be conferred by implication. Prior to 1906, neither section 20, nor section 12 of the Interstate Commerce Act, conferred authority upon a Federal court to issue a writ of mandamus to compel a common carrier to make a report of the matters and things specified in section 20 of the act. A grant of authority to the commission to enforce the act and to institute “all necessary proceeding for the enforcement of the provisions of the

act, will not authorize a summary proceeding by mandamus.” (Knapp v. Lake Shore Ry. Co., 197 U. S. 536.)

In view of this decision, Congress, by the act approved June 29, 1906, has given express authority to the court to issue its writ of mandamus to enforce "any of the provisions" of the Commerce Act, or of any act supplemental thereto or amendatory thereof. See section 20 of the Commerce Act as amended 1906.

§ 27. Mandamus - Writ May Fix Percentage of Cars.→ Judge Goff, in United States ex rel. Kingwood Coal Co. v. West Virginia R. R. Co., 125 Fed. Rep. 252, held that a shipper could compel the carrier to furnish cars, and that this right could be compelled by mandamus, under section 23 of the Commerce Act (added to the act by Laws 1889, chap. 382, § 10, approved March 2, 1889), that an alternative writ could be amended even after issue joined. The writ granted by the court fixed the allotment of cars to which relator was entitled. The ruling of Judge Goff was affirmed by the Circuit Court of Appeals. In commenting on the power of the court to fix the percentage of cars, the court said:

"It is insisted in a proceeding of this character to fix the percentage of cars the relator should have, and to command that such percentage of cars should be furnished to the relator.' The acts of Congress forbade discrimination and made it unlawful to give any undue or unreasonable preferences or advantage to particular persons, companies, corporations, or localities, or any particular description of traffic, or to subject them to any undue or unreasonable prejudice or disadvantage in any respect whatever,' and vested jurisdiction in the Circuit and District Courts to proceed by mandamus as a cumulative remedy for violations of the statutory provisions. * We are unable to accept the view that Congress intended to confine the scope of the writ to admonition merely, or to a general command to desist from discrimination, rather than from the particular action in which the discrimination consisted. By the findings, the delivery to the relator of any less than 31

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