Great Northern Railway Co. v. United States
208 U.S. 452 (1908)

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U.S. Supreme Court

Great Northern Railway Co. v. United States, 208 U.S. 452 (1908)

Great Northern Railway Company v. United States

No. 411

Argued January 7, 1908

Decided February 24, 1908

208 U.S. 452

ON WRIT OF CERTIORARI TO THE CIRCUIT

COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Syllabus

The provisions of § 13, Rev.Stat. that the repeal of any statute shall not have the effect to release or extinguish any penalty incurred under the statute repealed are to be treated as if incorporated in, and as a part of, subsequent enactment of Congress, and, under the general principle of construction requiring effect to be given to all parts of a law, that section must be enforced as forming part of such subsequent enactment except in those instance where, either by express declaration or necessary implication, such enforcement would nullify the legislative intent.

The Act of Congress of June 29, 1906, c. 359, 34 Stat. 584, known as the Hepburn Law, as construed in the light of § 13, Rev.Stat., as it must be construed, did not repeal the Act of February 19, 1903, c. 708, 32 Stat. 847, known as the Elkins Law, so as to deprive the government of the right to prosecute for violation of the Elkins Law committed prior to the enactment of the Hepburn Law, nor, when so construed, does the Hepburn Law, under the doctrine of inclusio unius exclusio alterius, exclude the right of the government to prosecute for past offense not then pending in the court because pending causes are enumerated in, and saved by, § 10 of the Hepburn Law.

In citing approvingly, as to the particular point involved in this case, cases recently decided in the lower federal courts, this Court expresses no opinion upon any other subject involved in such cases, and does not even indirectly leave room for any implication that any opinion has been expressed as to such other issues which may hereafter come before it for decision.

Although a ground for demurrer to indictment may be sufficiently broad to embrace a contention raised before this Court, if it appears that such contention was disclaimed and was not urged in the trial court and in the circuit court of appeals, and was not referred to in any of the opinions below or in the petition for certiorari or the brief in support thereof, this Court will, without intimating any opinion in regard to its merits, decline to consider it.

155 F. 945 affirmed.

The facts are stated in the opinion.

Page 208 U. S. 459

MR. JUSTICE WHITE delivered the opinion of the Court.

The act of Congress commonly referred to as the Hepburn Law was enacted June 29, 1906. 34 Stat. 584, c. 3591. In November, 1906, in the District Court of the United States for Minnesota, the Great Northern Railway Company and several of its officials were indicted for violations of the act of 1903, commonly known as the Elkins Act. 32 Stat. 847, c. 708. There were fifteen counts, all relating to acts done in May, June, July, and August, 1905. Except as to varying dates of shipment and the sum of the concessions, the counts were alike. A reference to the first count will therefore make clear all the charges which the indictment embraced. After alleging the corporate existence of the railway company, the capacity of its named officials and agents, and the fixing and publishing of rates, there was set out the carriage of certain grain by the railway company from Minneapolis, Minnesota, to Seattle, Washington, for account of the W. P. Devereux Company, a corporation. It was then alleged that, by the tariff and schedule of rates as established, published, and filed in conformity to the Act to Regulate Commerce, the legal charge was fifty cents for each one hundred pounds of grain carried from Minneapolis to Seattle,

"but the grand jurors aforesaid, on their oath aforesaid, do present and charge that, . . . within the jurisdiction of this Court, . . . the said Great Northern Railway [and the officers and agents named] did unlawfully grant and give to the said W. P. Devereux Company . . . a concession of twenty cents (20

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