railroad companies from transporting in interstate commerce articles or commodities other than the excepted class, which have been manufactured, mined, or produced by them or under their authority, or which they own or may have owned, in whole or in part, or in which they have or may have had any interest, direct or indirect. These prohibitions, it further was insisted, apply to the transportation by a railroad company in interstate commerce of a commodity which has been manufactured, mined, or produced by a corporation in which the transporting company is a stockholder, irrespective of the extent of such stock ownership. The text of the above clause, the court said, apparently applies four generic prohibitions; that is, it forbids a railroad carrier from transporting in interstate commerce articles or commodities (1) which it has manufactured, mined, or produced; (2) which have been so mined, manufactured, or produced under its authority; (3) which it owns in whole or in part; and (4) in which it has an interest, direct or indirect. And the court concluded that a literal construction of this clause would bring about an irreconcilable conflict between its provisions. This was arrived at upon the following reasoning: "It is clear that the two prohibitions which relate to manufacturing, mining, etc., and the ownership resulting therefrom, are, if literally construed, not confined to the time when a carrier transports the commodities with which the prohibitions are concerned, and hence the prohibitions attach and operate upon the right to transport the commodity because of the antecedent acts of manufacture, mining, or production. Certain also is it that the two prohibitions concerning ownership in whole or in part, and interest direct or indirect, speak in the present, and not in the past; that is, they refer to the time of the transportation of the commodities. These last prohibitions, therefore, differing from the first two, do not control the commodities if, at the time of the transportation, they are not owned in whole or in part by the transporting carrier, or if it then has no interest, direct or indirect, in them. From this it follows that the construction which the government places upon the clause as a whole is in direct conflict with the literal meaning of the prohibitions as to ownership and interest, direct or indirect. If the first two classes of prohibitions as to manufacturing, mining, or production be given their literal meaning, and therefore be held to prohibit, irrespective of the relation of the carrier to the commodity at the time of transportation, and a literal interpretation be applied to the remaining prohibitions as to ownership and interest, thus causing them only to apply if such ownership and interest exist at the time of transportation, the result would be to give to the statute a self-annihilative meaning. This is the case, since, in practical execution, it would come to pass that where a carrier had manufactured, mined, and produced commodities, and had sold them in good faith, it could not transport them; but, on the other hand, if the carrier had owned commodities and sold them it could carry them without violating the law, The consequence, therefore, would be that the statute, because of an immaterial distinction between the sources from which ownership arose, would prohibit transportation in one case and would permit it in another like case." In view of this conflict the court considered it necessary to harmonize the provisions of the clause by construing all the prohibitions as contemplating dissociation of railroad companies from the products which they transport, prior to transportation, whether the association resulted from manufacture, mining, production, or ownership, or interest, direct or indirect. In regard to the nature and character of the interest embraced by the words "in which it may have any interest, direct or indirect," the court held that this "includes only commodities in which a carrier has a legal interest, and therefore does not exclude the right to carry commodities which have been manufactured, mined, produced, or owned by a separate and distinct corporation, simply because the transporting carrier may be interested in the producing, etc., corporation as an owner of stock therein." The court concluded that the statute is to be construed "as prohibiting a railroad company engaged in interstate commerce from transporting in such commerce articles or commodities under the following circumstances and conditions: (a) when the article or commodity has been manufactured, mined, or produced by a carrier or under its authority, and at the time of transportation the carrier has not, in good faith, before the act of transportation, dissociated itself from such article or commodity; (b) when the carrier owns the article or commodity to be transported, in whole or in part; (c) when the carrier, at the time of transportation, has an interest, direct or indirect, in a legal or equitable sense, in the article or commodity, not including, therefore, articles or commodities manufactured, mined, produced, or owned, etc., by a bona fide corporation in which the railroad company is a stockholder." Mr. Justice Harlan dissented from the majority of the court, saying: "In my judgment the Act, reasonably and properly construed, according to its language, includes within its prohibitions a railroad company transporting coal, if, at the time, it is the owner, legally or equitably, of stock certainly, if it owns a majority or all the stock in the company which mined, manufactured, or produced, and then owns, the coal which is being transported by such railroad company. Any other view of the Act will enable the transporting railroad company, by one device or another, to defeat altogether the purpose which Congress had in view, which was to divorce, in a real, substantial sense, production and transportation, and thereby to prevent the transporting company from doing injustice to other owners of coal." Constitutionality. As construed above the court held the statute to be within the power of Congress to enact as a regulation of com merce-reversing 164 Fed. 215, wherein it was held that the commerce clause of the Federal Constitution is to be construed in connection with other provisions of the same instrument, and does not confer on Congress plenary power to control, restrict, and prohibit interstate commerce arbitrarily, without regard to any rights of personal liberty and property; and that the clause above, forbidding railroad companies to transport articles manufactured, mined, or produced by them, etc., is void so far as it attempts to prohibit railroad companies from transporting coal from mines owned and operated by them, under legislative authority, long prior to the passage of the Act, because such prohibition is a deprivation of liberty and property without due process of law, in contravention of the Fifth Amendment to the Federal Constitution. of the penalties which it imposes, the court held to be without merit. Switch connections. This clause relating to this subject is intended to provide that shippers located upon branch or lateral lines shall be accorded the same kind of treatment that is furnished to those whose mines are located on the main line of the carrier. U. S. v. Baltimore, etc., R. Co., (C. C. A.) 165 Fed. 131. Cars not owned by carrier. - The duty under this provision and the Act (Act Feb. 4, 1887, ch. 104, sec. 3) amended by it of furnishing a fair and equal distribution of facilities to shippers cannot be evaded by the carrier by claiming that it is not the owner of a portion of the cars carried over its lines. U. S. v. Baltimore, etc., R. Co., (C. C. A.) 165 Fed. 113. Contentions that the clause transcends the limits of regulation of commerce, that it is void because of the exception as to timber and the manufactured products thereof, and that it is void because of the nature and character In addition to the annotations of this section, see also infra, notes to sec. 2. con. SEC. 2. [Schedules - rates and joint rates to be filed and posted necting roads details required rates through foreign countries— customs duty charged if rates not posted-changes-notice required acceptance of joint tariff by carriers - copies of traffic contracts, etc., to be filed - forms of schedules-transportation forbidden unless rates filed, etc. - charges to be as specified -rebates prohibited meaning of "carrier"- military traffic in time of war.] That section six of said Act, as amended March second, eighteen hundred and eighty-nine, be amended so as to read as follows: "SEC. 6. That every common carrier subject to the provisions of this Act shall file with the Commission created by this Act and print and keep open to public inspection schedules showing all the rates, fares, and charges for transportation between different points on its own route and between points on its own route and points on the route of any other carrier by railroad, by pipe line, or by water when a through route and joint rate have been established. If no joint rate over the through route has been established, the several carriers in such through route shall file, print and keep open to public inspection as aforesaid, the separately established rates, fares and charges applied to the through transportation. The schedules printed as aforesaid by any such common carrier shall plainly state the places between which property and passengers will be carried, and shall contain the classification of freight in force, and shall also state separately all terminal charges, storage charges, icing charges, and all other charges which the Commission may require, all privileges or facilities granted or allowed and any rules or regulations which in any wise change, affect, or determine any part or the aggregate of such aforesaid rates, fares, and charges, or the value of the service rendered to the passenger, shipper, or consignee. Such schedules shall be plainly printed in large type, and copies for the use of the public shall be kept posted in two public and conspicuous places in every depot, station, or office of such carrier where passengers or freight, respectively, are received for transportation, in such form that they shall be accessible to the public and can be conveniently inspected. The provisions of this section shall apply to all traffic, transportation, and facilities defined in this Act. Any common carrier subject to the provisions of this Act receiving freight in the United States to be carried through a foreign country to any place in the United States shall also in like manner print and keep open to public inspection, at every depot or office where such freight is received for shipment, schedules showing the through rates established and charged by such common carrier to all points in the United States beyond the foreign country to which it accepts freight for shipment; and any freight shipped from the United States through a foreign country into the United States the through rate on which shall not have been made public, as required by this Act, shall, before it is admitted into the United States from said foreign country, be subject to customs duties as if said freight were of foreign production. No change shall be made in the rates, fares, and charges or joint rates, fares, and charges which have been filed and published by any common carrier in compliance with the requirements of this section, except after thirty days' notice to the Commission and to the public published as aforesaid, which shall plainly state the changes proposed to be made in the schedule then in force and the time when the changed rates, fares, or charges will go into effect; and the proposed changes shall be shown by printing new schedules, or shall be plainly indicated upon the schedules in force at the time and kept open to public inspection: Provided, That the Commission may, in its discretion and for good cause shown, allow changes upon less than the notice herein specified, or modify the requirements of this section in respect to publishing, posting, and filing of tariffs, either in particular instances or by a general order applicable to special or peculiar circumstances or conditions. The names of the several carriers which are parties to any joint tariff shall be specified therein, and each of the parties thereto, other than the one filing the same, shall file with the Commission such evidence of concurrence therein or acceptance thereof as may be required or approved by the Commission, and where such evidence of concurrence or acceptance is filed it shall not be necessary for the carriers filing the same to also file copies of the tariffs in which they are named as parties. Every common carrier subject to this Act shall also file with said Commission copies of all contracts, agreements, or arrangements with other common carriers in relation to any traffic affected by the provisions of this Act to which it may be a party. The Commission may determine and prescribe the form in which the schedules required by this section to be kept open to public inspection shall be prepared and arranged and may change the form from time to time as shall be found expedient. No carrier, unless otherwise provided by this Act, shall engage or participate in the transportation of passengers or property, as defined in this Act, unless the rates, fares, and charges upon which the same are transported by said carrier have been filed and published in accordance with the provisions of this Act; nor shall any carrier charge or demand or collect or receive a greater or less or different compensation for such transportation of passengers or property, or for any service in connection therewith, between the points named in such tariffs than the rates, fares, and charges which are specified in the tariff filed and in effect at the time; nor shall any carrier refund or remit in any manner or by any device any portion of the rates, fares, and charges so specified, nor extend to any shipper or person any privileges or facilities in the transportation of passengers or property, except such as are specified in such tariffs: Provided, That wherever the word "carrier" occurs in this Act it shall be held to mean common carrier." That in time of war or threatened war preference and precedence shall, upon the demand of the President of the United States, be given, over all other traffic, to the transportation of troops and material of war, and carriers shall adopt every means within their control to facilitate and expedite the military traffic." [34 Stat. L. 586.] [Corporation common carriers - liability of corporations for violating regulations, etc. penalty for not filing tariffs, etc. rebates, concessions, etc., prohibited — penalty-imprisonment added prosecutions liability for acts of agents, etc. - departure from published rates an offense - penalty for receiving rebates from carriers - additional fine - civil suit to recover amount of recovery.) That section one of the Act entitled "An Act to further regulate commerce with foreign nations and among the States," approved February nineteenth, nineteen hundred and three, be amended so as to read as follows: "That anything done or omitted to be done by a corporation common carrier, subject to the Act to regulate commerce and the Acts amendatory thereof, which, if done or omitted to be done by any director or officer thereof, or any receiver, trustee, lessee, agent, or person acting for or employed by such corporation, would constitute a misdemeanor under said Acts or under this Act, shall also be held to be a misdemeanor committed by such corporation, and upon conviction thereof it shall be subject to like penalties as are prescribed in said Acts or by this Act with reference to such persons, except as such penalties are herein changed. The willful failure upon the part of any carrier subject to said Acts to file and publish the tariffs or rates and charges as required by said Acts, or strictly to observe such tariffs until changed according to law, shall be a misdemeanor, and upon conviction thereof the corporation offending shall be subject to a fine of not less than one thousand dollars nor more than twenty thousand dollars for each offense; and 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 thereof 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 thereof, or whereby any other advantage is given or discrimination is practiced. Every person or corporation, whether carrier or shipper, who shall, knowingly, offer, grant, or give, or solicit, accept, or receive any such rebates, concession, or discrimination shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by a fine of not less than one thousand dollars nor more than twenty thousand dollars: Provided, That any person, or any officer or director of any corporation subject to the provisions of this Act, or the Act to regulate commerce and the Acts amendatory thereof, or any receiver, trustee, lessee, agent, or person acting for or employed by any such corporation, who shall be convicted as aforesaid, shall, in addition to the fine herein provided for, be liable to imprisonment in the penitentiary for a term of not exceeding two years, or both such fine and imprisonment, in the discretion of the court. 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; and whenever the offense is begun in one jurisdiction and completed in another it may be dealt with, inquired of, tried, determined, and punished in either jurisdiction in the same manner as if the offense had been actually and wholly committed therein. In construing and enforcing the provisions of this section, the act, omission, or failure of any officer, agent, or other person acting for or employed by any common carrier, or shipper, acting within the scope of his employment, shall in every case be also deemed to be the act, omission, or failure of such carrier or shipper as well as that of the person. Whenever any carrier files with the Interstate Commerce Commission or publishes a particular rate under the provisions of the Act to regulate commerce or Acts amendatory thereof, or participates in any rates so filed or published, that rate as against such carrier, its officers or agents, in any prosecution begun under this Act shall be conclusively deemed to be the legal rate, and any departure from such rate, or any offer to depart therefrom, shall be deemed to be an offense under this section of this Act. Any person, corporation, or company who shall deliver property for interstate transportation to any common carrier, subject to the provisions of this Act, or for whom as consignor or consignee, any such carrier shall transport property from one State, Territory, or the District of Columbia, to any other State, Territory, or the District of Columbia, or foreign country, who shall knowingly by employee, agent, officer, or otherwise, directly or indirectly, by or through any means or device whatsoever, receive or accept from such common carrier any sum of money or any other valuable consideration as a rebate or offset against the regular charges for transportation of such property, as fixed by the schedules of rates provided for in this Act, shall in addition to any penalty provided by this Act forfeit to the United States a sum of money three times the amount of money so received or accepted and three times the value of any other consideration so received or accepted, to be ascertained by the trial court; and the Attorney-General of the United States is authorized and directed, whenever he has reasonable grounds to believe that any such person, corporation, or company has knowingly received or accepted from any such common carrier any sum of money or other valuable consideration as a rebate or offset as aforesaid, to institute in any court of the United States of competent jurisdiction, a civil action to collect the said sum or sums so forfeited as aforesaid; and in the trial of said action all such rebates or other considerations so received or accepted for a period of six years prior to the commencement of the action, may be included therein, and the amount recovered shall be three times the total amount of money, or three times the total value of such consideration, so received or accepted, or both, as the case may be." [34 Stat. L. 587.] Section 6 of the Interstate Commerce Act is given in 3 Fed. Stat. Annot. 872. Section 1 of the Act of Feb. 19, 1903, above amended, is set forth in 10 Fed. Stat. Annot. 170. The plain intention of Congress in the interstate rate legislation was to close every avenue against discrimination. This purpose is even more apparent in the present Act than in the Acts which it amends. Bearing this in mind, the courts, in construing the Act, will not hesitate in giving significance to changes in the language of the statutes as they occur from time to time. U. S. v. Chicago, etc., R. Co., (1908) 163 Fed. 114. Foreign shipments. - That the shipment, although made from a foreign country to a place in the United States, is subject to the interstate commerce law, is evident from the terms of the law, and being subject to the operation of the law, it follows that the provisions in relation to posting and publishing schedules of rates on such shipments also must apply. Fisher v. Great Northern R. Co., (Wash.) 95 Pac. 77, 78. Effect on transferability of tickets. - Under the requirement of this Act that the published schedules filed with the commission must show "all privileges or facilities granted or allowed," as well as any rules or regulations which affect any part or the aggregate of such aforesaid rates, fares, and charges, or the value of the service rendered to the passenger," etc., a railroad company cannot enforce a rule, printed on its tickets, that such tickets shall not be transferable, where its published schedules fail to mention the nontransferable feature. "The sale and transfer of the ticket is not only a privilege, but a right which directly enters into and affects the value of the ticket; and hence, if either the right is to be denied or the privilege abridged, under the plain language of the Act in question, it must be shown in the published tariff and schedule of the company." Baltimore, etc., R. Co. v. Hamburger, (1907) 155 Fed. 849. Presumption as to compliance. - It will be presumed, in the absence of evidence to the contrary, that every common carrier engaged in interstate commerce has complied with the above section by establishing rates and printing, filing, publishing, and posting them. Meeker v. Lehigh Valley R. Co., (1908) 162 Fed. 354. |