A device to obtain rebates, to be within the prohibition of the
Interstate Commerce Act of March 2, 1889, 25 Stat. 857, and the
Elkins Act of February 19, 1903, 32 Stat. 847, need not necessarily
be fraudulent. The term "device," as used in those statutes,
includes any plan or contrivance whereby merchandise is transported
for less than the published rate, or any other advantage is given
to, or discrimination practiced in favor of, the shipper.
Page 209 U. S. 57
In construing the Elkins Act, it will be read not only in the
light of the previous legislation on the same subject, but also of
the purpose which Congress had in mind in enacting it -- to require
all shippers to be treated alike and to pay one rate as
established, published, and posted.
New Haven Railroad Co. v.
Interstate Commerce Commission, 200 U.
S. 361,
200 U. S.
391.
The requirements of § 2 of Art. III of, and of the Sixth
Amendment to, the federal Constitution relate to the locality of
the offense, and not to the personal presence of the offender.
Transportation of merchandise by a carrier for less than the
published rate is, under the Elkins Act, a single continuing
offense, continuously committed in each district through which the
transportation is conducted at the prohibited rate, and is not a
series of separate offenses, and the provision in the law making
such an offense triable in any of those districts, confers
jurisdiction on the court therein, and does not violate § 2 of Art.
III of, or the Sixth Amendment to, the federal Constitution,
providing that the accused shall be tried in the state and district
where the crime was committed.
The Interstate Commerce Act embraces the whole field of
interstate commerce; it does not exempt such foreign commerce as is
carried on a through bill of lading, but in terms applies to the
transportation of property shipped from any place in the United
States to a foreign country and carried from such place to a port
of transshipment.
The export and preference clause of the Constitution prohibits
burdens only by way of actual taxation and duty, or legislation
intending to give, and actually giving, the prohibited preference,
and does not prohibit the merely incidental effect of regulations
of interstate commerce wholly within the power of Congress, and the
fact that such regulations in the Interstate Commerce Act may
affect the ports of one state having natural advantages more than
those of another state not possessing such advantages does not
render the act unconstitutional as violating that provision.
There is no provision in the Elkins Act exempting special
contracts from its operation, nor is there any provision for filing
and publishing such contracts, and the fact that a contract was at
the published rate when made does not legalize it after the carrier
has advanced the published rate. The provisions as to rates, being
in force in a constitutional act of Congress when the contract is
made, are read into the contract and become a part thereof, and the
shipper, who is a party to such a contract, takes it subject to any
change thereafter made in the rate to which he must conform or
suffer the penalty fixed by law.
An indictment which clearly and distinctly charges each and
every element of the offense intended to be charged, and which
distinctly advises the defendant of what he is to meet at the
trial, is sufficient, and so
held in this case as to an
indictment for accepting rebates prohibited by the Elkins Act,
although the details of the device by which the rebates were
received were not set out.
While intent is to some extent essential in the commission of
crime, and
Page 209 U. S. 58
without determining whether a hipper honestly paying a reduced
rate in the belief that it is the published rate is liable under
the statute,
held that shippers who pay such a rate with
full knowledge of the published rate, and contend that they have a
right so to do, commit the offense prohibited by the Elkins Act and
are subject to the penalties provided therein, even though their
contention be a mistake of law.
153 F. 1 affirmed.
The facts are stated in the opinion.
Page 209 U. S. 66
MR. JUSTICE DAY delivered the opinion of the Court.
These cases are here upon writs of certiorari to the United
States Circuit Court of Appeals for the Eighth Circuit. By
stipulation, there was a single petition for certiorari, and the
cases in the circuit court of appeals were considered together on
the record in the
Armour Packing Company case, and, as it
is conceded in the brief of the learned counsel for the petitioners
that the differences in the cases are unsubstantial, the same
course may be followed here.
Each of the petitioners was convicted in the District Court of
the United States, Western District of Missouri, for violation of
the so-called Elkins Act, 32 Stat. 847, c. 708, in obtaining from
the Chicago, Burlington & Quincy Railway Company an unlawful
concession of 12 cents per 100 pounds from the published and filed
rate on that portion of the route between the Mississippi River and
New York, for transportation upon a shipment made August 17, 1905,
for carriage by rail of certain packinghouse products from Kansas
City, Kansas, to New York for export. Upon writs of error from the
Circuit Court of Appeals of the Eighth Circuit, the sentences of
conviction were affirmed. 153 F. 1.
The facts in the
Armour case are briefly these: from
May 9 to August 6, 1905, the Chicago, Burlington & Quincy
Railway Company, with its connecting railroads east of the
Mississippi River, under joint traffic arrangements, had filed,
published, and posted in accordance with the acts of Congress
the
Page 209 U. S. 67
rates of shipment of the character in question, and showing that
the proportionate part thereof from points on the Mississippi River
to New York was 23 cents per 100 pounds. Upon June 16, 1905, the
packing company contracted with the Wilson Steamship Line for space
upon boats sailing in August for certain shipments, and notified
the Burlington Company thereof, giving it a copy of the contract.
On June 17, 1905, the Burlington Company contracted with the
packing company to carry export shipments from Kansas City, Kansas,
of products named, until December 31, 1905, at a rate the
proportionate part of which from the Mississippi River to New York
City was 23 cents per 100 pounds, as aforesaid. Upon August 6,
1905, the tariff was amended and duly published and filed, showing
that the proportionate part from the Mississippi River to New York
City was 35 cents instead of 23 cents per 100 pounds. One of the
connecting railroads then objected to the carrying of the freight
at the contract rate hereinbefore stated, and a controversy arose
between it and the Burlington Company as to whether such contract
should apply, the Burlington Company claiming that it should, the
connecting carrier denying this contention. Upon August 17, 1905,
the packing company delivered at Kansas City, Kansas, to the
Burlington Company, sixty-seven tierces of oleo oil, property of
the character covered by the contract, for export to Christiania,
Norway, and upon receipt thereof at Kansas City, Kansas, the
Burlington Company issued and delivered a bill of lading, agreeing
to carry the same to the point of destination for a through rate,
which included the carriage by, and the rate of, the steamship
line, which bill of lading was, according to the ordinary course of
business, delivered to the Traders Despatch, one of the connecting
carriers, which took the same up and issued a through bill of
lading for the goods at the through rate. The bill was in
triplicate, one copy thereof being delivered to and accepted by the
steamship company. The packing company paid to the Burlington
Company, as the initial carrier, the full through rate for the
Page 209 U. S. 68
carriage over the line of the Burlington Company and its
connecting carriers and that of the steamship line, and, from the
time of the delivery of the freight to the railway company at
Kansas City, Kansas, until it was delivered at the export
destination, it was exclusively handled by the carriers, rail and
steamship, the shipper having nothing to do with it. The Burlington
Company did, with connecting lines, transport the property from
Kansas City, Kansas, through the Western District of Missouri and
other states and districts to New York City, where the same was
delivered to the steamship line. The full rate for the through
carriage thus paid was made up so that the proportional part of the
railroad carriage east of the Mississippi River was 23 cents per
100 pounds, instead of 35 cents per 100 pounds, fixed by the
amended and published rate. The packing company, at the time of
making the shipment and paying the freight, knew of the filing and
publishing of the amended tariff of August 5, 1905, but did not
know how the rate was apportioned or divided, or made up among the
respective carriers or points, except that it knew the steamship
rate as named in the contract with the steamship owners.
At the time aforesaid, the Burlington Company was a common
carrier, engaged in the transportation of property by railway under
contract agreements and traffic arrangements with certain other
lines, extending from Kansas City, Kansas, east to the City of New
York and other seaboard points. There were no fixed contract
agreements or traffic arrangements with the steamship lines, which
were conducted as hereinafter set forth. The ocean rate is
variable, depending upon the season, weather, and other matters.
The steamship must sail at a given date, and has a certain amount
of space to be filled, so that space may be at one time quoted to
one person at one price and at another time to another person at a
different price. The question of such rates varies from hour to
hour, as well as from day to day. For these among other reasons,
there was no contract agreement or traffic arrangements between the
railroads and export steamship lines. The reservation of
Page 209 U. S. 69
space upon an ocean steamer in advance is an important thing, so
that the packing company can be certain that its shipment can go on
the boats sailing at specified times. The packing company has
houses in different parts of the United States, so that it cannot
always, at the time of the contract for space, know from what
particular point and over what road the shipments will go.
Before August 6, 1905, shipments were made according to the
terms of the contract aforesaid, which were carried under the terms
thereof. The Armour Company contended and insisted that the
amendment increasing the tariff rate did not and could not abrogate
or impair the term of its contract.
These prosecutions were under the Elkins Act (32 Stat. 847), and
the first question argued concerns the construction of that act, as
to what constitutes a crime on the part of the shippers so far as
obtaining a shipment by some manner of device is concerned, it
being the contention of the petitioners that, in order to work
conviction, the shipper must be guilty of some bad faith or
fraudulent conduct in the use of the device, or obtain the rebate
by some intentionally dishonest or underhanded method, concession,
or discrimination denounced by the act. The history of the act in
this feature may be of service in interpreting the meaning of
Congress. The Act of February 4, 1887, made no provision for
criminal offenses against the shippers, but it was provided (§ 2,
24 Stat. 379, c. 104) that, if the common carrier should, directly
or indirectly, by any special rate, rebate, or other device,
demand, collect, or receive, through any person or persons, a
greater or less compensation for any service rendered or to be
rendered in the transportation of property subject to the
provisions of the act, than it charges, demands, collects, or
receives, etc., from any other person or persons for doing for him
or them a like service in the transportation of a like kind of
traffic under substantially the same circumstances, such common
carrier shall be deemed guilty of unjust discrimination, which by
the
Page 209 U. S. 70
act was prohibited and made unlawful. And it was made unlawful
for a common carrier to deviate from the published schedule of
rates, fares, and charges. 24 Stat. § 6, p. 381, c. 104.
By the Act of March 2, 1889 (25 Stat. 857, § 10), the shipper
was brought within certain criminal provisions of the law, and one
who should knowingly and willfully, by false billing, false
classifying, false weighing, false representation of the contents
of the package, or false report of weight, or by any other device
or means, with or without the consent or connivance of the carrier,
obtain or dispose of property at less than the regular rate
established and in force, should be deemed guilty of fraud.
It will be noticed that, in these statutes, the term "device" is
associated with other words indicative of its meaning, and, in the
Act of March 2, 1889, the shipper, for falsely acting as to
weighing, billing, classifying, or obtaining the transportation of
property at less than the regular rate, or by any other device, was
deemed guilty of fraud. In this act the term "device," as one of
the means of consummating a fraud, shows the sense in which the
term is used by Congress. It was only fraudulent conduct in
obtaining transportation at less rates than others which was
denounced by the act, and the imposition aimed at was principally
such as might be practiced by the shippers upon the carriers in
order to procure the preference.
When we come to the Elkins Act, we find the following provisions
(32 Stat. 847):
"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 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
Page 209 U. S. 71
discrimination in respect of 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. Every person or
corporation which shall 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."
In this act we find punishment by imprisonment abolished, and
the shipper and carrier are placed upon the like footing, and it is
made unlawful for any person or corporation to offer, grant,
solicit, give, or to accept or receive, any rebate, concession, or
discrimination in respect to transportation of property in
interstate or foreign commerce, whereby any such property shall, by
any device whatever, be transported for a less rate than that
published and filed by such carriers, or whereby any other
advantage is given or discrimination practiced. And we find the
word "device" disassociated from any such words as "fraudulent
conduct, scheme, or contrivance," but the act seeks to reach all
means and methods by which the unlawful preference of rebate,
concession, or discrimination is offered, granted, given, or
received. Had it been the intention of Congress to limit the
obtaining of such preferences to fraudulent schemes or devices, or
to those operating only by dishonest, underhanded methods, it would
have been easy to have so provided in words that would be
unmistakable in their meaning. A device need not be necessarily
fraudulent; the term includes anything which is a plan or
contrivance. Webster defines it to be "that which is devised or
formed by design; a contrivance; an invention; a project," etc.
Page 209 U. S. 72
This act is not only to be read in the light of the previous
legislation, but the purpose which Congress evidently had in mind
in the passage of the law is also to be considered.
The views of this Court, speaking through MR. JUSTICE WHITE, in
N.Y., New Haven & Hartford R. Co. v. Interstate Commerce
Commission, 200 U. S. 361,
200 U. S. 391,
are apposite here:
"It cannot be challenged that the great purpose of the Act to
Regulate Commerce, whilst seeking to prevent unjust and
unreasonable rates, was to secure equality of rates as to all and
to destroy favoritism, these last being accomplished by requiring
the publication of tariffs and by prohibiting secret departures
from such tariffs, and forbidding rebates, preferences, and all
other forms of undue discrimination. To this extent and for these
purposes, the statute was remedial, and is therefore entitled to
receive that interpretation which reasonably accomplishes the great
public purpose which it was enacted to subserve. . . . The
all-embracing prohibition against either directly or indirectly
charging less than the published rates shows that the purpose of
the statute was to make the prohibition applicable to every method
of dealing by a carrier by which the forbidden result could be
brought about. If the public purpose which the statute was intended
to accomplish be borne in mind, its meaning becomes, if possible,
clearer."
The Elkins Act proceeded upon broad lines, and was evidently
intended to effectuate the purpose of Congress to require that all
shippers should be treated alike, and that the only rate charged to
any shipper for the same service, under the same conditions, should
be the one established, published, and posted as required by law.
It is not so much the particular form by which or the motive for
which this purpose was accomplished, but the intention was to
prohibit any and all means that might be resorted to to obtain or
receive concessions and rebates from the fixed rates, duly posted
and published.
It is next contended that there is no jurisdiction to
prosecute
Page 209 U. S. 73
the offense named, because the alleged offense, if any, was not
committed in the Western District of Missouri, where the
prosecution was had, but the same was complete in Kansas City, in
the State of Kansas, and it is contended in this connection that,
if the act can be construed to include prosecutions in other
districts, it is unconstitutional within the provisions of the
Sixth Amendment of the Constitution of the United States, which
provides that the accused shall have the right to be tried by an
impartial jury of the state and district wherein the crime shall
have been committed. Art. III, § 2, and Amendment VI.
As to the construction of the act, in addition to the section of
the act above quoted, it is further provided in the Elkins Law (32
Stat. 847), as to jurisdiction:
"(Prosecution -- Jurisdiction.) 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 this case, the indictment charges the actual transportation
of the property from Kansas City, Kansas, to New York City, the
course of transportation being through the Western District of
Missouri, in which the prosecution was had.
We are not now concerned with the construction of the act in
making provision for punishing the carrier or shipper for offering,
granting, or giving, or soliciting, accepting, or receiving,
rebates, concessions, or discriminations, irrespective of actual
transportation, for it is specifically made an offense to receive
any rebate or concession
whereby any such property is, by any
device whatever, transported at a less rate than that named,
published, and filed by the carrier, and jurisdiction is given to
prosecute in any criminal court of the United States
Page 209 U. S. 74
in the district
through which the transportation may have
been conducted.
Having in view the offense charged in this case, we think it is
clearly within the terms of the act making it penal to procure the
actual transportation, by any of the means denounced in the act, of
goods at a less rate than that named in the tariffs. It is the
purpose of the act to punish those who give or receive
transportation, in the sense of actual carriage, at a concession
from the published rates. Wherever such transportation is received,
there the offense is to be deemed to have been committed. Why may
this not be so? In this feature of the statute, the transportation
being of the essence of the offense, when it takes place, whether
in one district or another, whether at the beginning, at the end,
or in the middle of the journey, it is equally and at all times
committed.
Congress also embraced in § 1 of the Elkins Act offenses not
depending upon actual transportation through districts, and, as to
the trial of such, it also made provisions in the venue
section.
For the penal section is not only aimed at offenses whereby
property is transported in interstate commerce at less than
published rates, but in terms covers the offering, granting,
giving, soliciting, accepting, or receiving of rebates,
concessions, or discriminations "whereby any other advantage is
given or discrimination is practiced" in respect of interstate
transportation.
Congress doubtless had in mind that some of these offenses might
be complete in a single district, some might be begun in one and
completed in another, and those wherein transportation -- actual
carriage -- was made an essential element might continue through
several districts, and hence undertook to provide places for trial
of any offense which might be committed against the provisions of
the act. It is at least certain that these sections, construed
together, make an offense of obtaining transportation at a
concession from the published rate which shall be triable in any
district through which it
Page 209 U. S. 75
is had. That is the offense of which the accused is charged in
this case, and such is the district in which it was tried.
It is contended that the contrary was held in the case of
Davis v. United States, 104 F. 136, decided in the Circuit
Court of Appeals for the Sixth Circuit. In that case, the
prosecution was for false billing by the shipper, under § 2 of the
act of 1889, wherein the statute provided punishment for the
offense in a single district, and it was there held that the crime
was complete in the district in which the false billing was made
and the goods delivered to the carrier for transportation, and that
its actual carriage was not an essential element of the offense,
and that a prosecution in Texas for goods falsely billed and
delivered to the carrier in Ohio could not be maintained.
Under the amended act, transportation with a rebate, or at a
concession from the established rates, is made an offense as to the
shipper as well as the carrier, thereby differentiating the Elkins
Act from § 2 of the act of 1889, as construed in the
Davis
case. In the
Davis case, it was specifically said:
"Such transportation may be through a number of districts, but
Congress has given jurisdiction for punishment of the crime in the
district in which the offense is committed. It must have been in
the contemplation of Congress that the fraudulent representations
may be made in one place, and the transportation, in the sense of
actual carriage, obtained as a result thereof, may be to a state or
district remote from the place of delivery, and through a number of
districts of the United States. If it was contemplated that the
crime could only be committed when the carriage contracted for was
concluded, quite a different provision would have been inserted
than the one requiring punishment in the district where committed.
Congress, in passing this act and providing for the place of trial
and punishment in a single district, evidently contemplated the
consummation of the offense at the place where the goods are billed
by the shipper and the delivery for transportation takes place.
"
Page 209 U. S. 76
But it is said this construction of the act is in violation of
the Sixth Amendment of the Constitution of the United States, which
requires crimes to be prosecuted and punished in the state or
district where the same are committed, and that, as the
transportation was had, at least in part, in Kansas, the offense
was there completed, and could not be prosecuted elsewhere. But the
constitutional provision does not require the prosecution of the
defendant in the district wherein he may reside at the time of the
commission of the offense, or where he may happen to be at that
time, provided he is prosecuted where the offense is committed. The
constitutional requirement is as to the locality of the offense,
and not the personal presence of the offender.
In re
Palliser, 136 U. S. 257,
136 U. S. 265;
Burton v. United States, 202 U. S. 344,
202 U. S. 387.
This doctrine finds illustration in
Palliser's case,
supra, in which a person was prosecuted in Connecticut for
mailing a letter in New York, addressed to the postmaster in the
former state, to induce him to violate his official duty, and it
was therein argued that the offense was complete in New York when
the letter was mailed, and that only in the New York district could
the prosecution be constitutionally had; but this Court, speaking
through Mr. Justice Gray, said:
"There can be no doubt at all, if any offense was committed in
New York, the offense was continuing to be committed when the
letter reached the postmaster in Connecticut."
In that case, the offender had done no act out of New York, and
the acts performed by him were complete when the letter was
delivered at the post office in that state; but this Court held the
crime to be a continuing one. We think the doctrine for stronger
reason applies in the present case, for transportation is an
essential element of the offense, and, as we have said,
transportation equally takes place over any and all of the traveled
route, and during transportation the crime is being constantly
committed. It does not follow, from this view of the character of
the offense, that a single transportation of goods can be made the
basis of repeated separate
Page 209 U. S. 77
criminal charges in each of the districts through which the
transportation at an illegal rate is had. Take the present case.
The charge is of a single, continuous carriage from Kansas City to
New York at a concession from the legal rate for the part of the
carriage between the Mississippi River and New York of 12 cents for
each 100 pounds so transported. This is a single, continuing
offense, not a series of offenses, although it is continuously
committed in each district through which the transportation is
received at the prohibited rate.
To say that this construction may work serious hardship in
permitting prosecutions in places distant from the home and remote
from the vicinage of the accused is to state an objection to the
policy of the law, not to the power of Congress to pass it.
Hyde v. Shine, 199 U. S. 62,
199 U. S. 78.
But this is a large country, and the offense under consideration is
one which may be constantly committed through its length and
breadth. This situation arises from modern facilities for
transportation and intercommunication in interstate transportation,
and considerations of convenience and hardship, while they may
appeal to the legislative branch of the government, will not
prevent Congress from exercising its constitutional power in the
management and control of interstate commerce. We think there was
jurisdiction to prosecute for the offense charged within the
Western District of Missouri.
It is further contended by petitioners that the statutes have no
application to a shipment on a through bill of lading from an
interior point in the United States to a foreign port. It is
alleged that the Elkins Law refers to the original Interstate
Commerce Act, and that its terms do not include such shipments.
Analyzing the first section of the act (24 Stat. 379), it is said
that it applies to the following kinds of commerce: (a) interstate
commerce; (b) commerce between the United States and an adjacent
foreign country; (c) commerce between places in the United States
passing through a foreign country; (d) commerce from the United
States to a foreign country, only while being transported to a
point of transshipment;
Page 209 U. S. 78
(e) commerce from a foreign country to points in the United
States, but only while being carried from port of entry either in
the United States or an adjacent foreign country. And it is
contended that § 6, as amended (25 Stat. 855), does not require the
filing of through export tariffs.
The purpose of Congress to embrace the whole field of interstate
commerce is made apparent by the exclusion only of wholly domestic
commerce in the last clause of § 1 of the original act of 1887, and
in the declaration of the scope and purpose of the act, declared in
its title.
Texas & Pacific Ry. Co. v. Interstate Commerce
Commission, 162 U. S. 197,
162 U. S. 211.
There is no attempt in the language of the act to exempt such
foreign commerce as is carried on a through bill of lading; on the
contrary, the act in terms applies to the transportation of
property shipped from any place in the United States to a foreign
country and carried from such place to a port of transshipment.
What reasonable ground is there for supposing that Congress
intended to exercise no control over such commerce if it happens to
be billed through to the foreign port? Such construction would
place such important commerce shipped in the United States to a
port for transshipment abroad wholly outside the restrictions of
the law, and enable shippers to withdraw such commerce from the
regulations enforced against other interstate commerce by the
expedient of a through bill of lading. Take the present case. The
through rate is obtained by adding the ocean rate to the inland
rate. There is no contractual relation between the railroad carrier
and the ocean carrier. The ocean rate is uncertain and variable,
depending upon time of sailing and available space. The
accommodation for ocean shipment was obtained by the shipper and by
it made known to the inland carrier. We think the language of the
statute, read in the light of the manifest purpose of its passage,
shows the intent of Congress to bring interstate commerce within
the control of the provisions of the law up to the time of ocean
shipment. This construction
Page 209 U. S. 79
is reinforced by the broad provisions of § 6 of the act as to
publishing schedules, showing rates, fares, and charges, and filing
the same with the Interstate Commerce Commission. That such rates,
notwithstanding through bills of lading, were subject to the
provisions of the act was held, upon full consideration and
rightfully, as we think, by the Interstate Commerce Commission. In
re Tariffs on Export and Import Traffic, 10 I.C.C. 55.
It is contended that the act, as construed by the circuit court
of appeals, makes it conflict with Art. I, § 9, par. 5, of the
Constitution, which provides:
"No tax or duty shall be laid on any articles exported from any
state. No preference shall be given by any regulation of commerce
or revenue to the ports of one state over those of another; nor
shall vessels bound to or from one state be obliged to enter,
clear, or pay duties in another."
The petitioner contends that to permit a statute to have such
application to articles intended for foreign export is to place a
burden on the exercise of this right, because, before the shipper
can lawfully send his goods abroad, and before the carrier can
lawfully accept them, there must be a compliance with the
established rate on file with the Interstate Commerce Commission.
This rate is subject only to be changed as provided by law, and
this can be done without notice to the exporter and regardless of
his power to comply with the legal rate and meet the competition at
the seaport and the conditions of foreign markets. These things, it
is said, place a distinct burden upon export trade, and therefore
come within the constitutional prohibition. But it is to be
observed that the Constitution provides for a burden only by the
way of taxation or duty, and, unless the alleged interference
amounts to such taxation or duty, it does not come within the
constitutional prohibition.
Cornell v. Coyne, 192 U.
S. 418.
The regulations of interstate commerce provided by the statute
now under consideration are within the acknowledged power of
Congress under the interstate commerce clause of
Page 209 U. S. 80
the Constitution. There is no attempt to levy duties on goods to
be exported, and the mere incidental effect in the legal regulation
of interstate commerce upon such exportations does not come within
this constitutional prohibition.
Nor do we think there is any more force in the contention that
this legislation amounts to a preference of ports of one state over
those of another within the meaning of the constitutional provision
under consideration. This provision was intended to prevent
legislation intended to give, and having the effect of giving,
preference to the ports of one state over those of another state.
It may be true that the regulation of interstate commerce by rail
has the effect to give an advantage to commerce wholly by water and
to ports which can be reached by means of inland navigation, but
these are natural advantages, and are not created by statutory law.
The fact that regulation, within the acknowledged power of Congress
to enact, may affect the ports of one state more than those of
another cannot be construed as a violation of this constitutional
provision.
South Carolina v. Georgia, 93 U. S.
4,
93 U. S. 13;
Pennsylvania v. Wheeling &
Belmont Bridge Company, 18 How. 421,
59 U. S.
433.
It is strongly urged that there is nothing in the acts of
Congress regulating interstate commerce which can render illegal
the contract between the shipper and the railroad company covering
the period from June to December, 1905. The contract, it is
insisted, was at the legal, published and filed rate, and there is
nothing in the law destroying the right of contract so essential to
carrying on business such as the petitioner was engaged in. But
this contention loses sight of the central and controlling purpose
of the law, which is to require all shippers to be treated alike,
and but one rate to be charged for similar carriage of freight, and
that the filed and published rate, equally known by and available
to every shipper.
In the Elkins Act, Congress has made it a penal offense to give
or receive transportation at less than the published rate. This
rate can only be raised by ten days' or lowered by three
Page 209 U. S. 81
days' notice. Sec. 6, 25 Stat. 855. There is no provision
excepting special contracts from the operation of the law. One rate
is to be charged, and that the one fixed and published in the
manner pointed out in the statute, and subject to change in the
only way open by the statute. There is no provision for the filing
of contracts with shippers, and no method of making them public
defined in the statute. If the rates are subject to secret
alteration by special agreement, then the statute will fail of its
purpose to establish a rate duly published, known to all, and from
which neither shipper nor carrier may depart.
It is said that, if the carrier saw fit to change the published
rate by contract, the effect will be to make the rate available to
all other shippers. But the law is not limited to giving equal
rates by indirect and uncertain methods. It has provided for the
establishing of one rate, to be filed as provided, subject to
change as provided, and that rate to be, while in force, the only
legal rate. Any other construction of the statute opens the door to
the possibility of the very abuses of unequal rates which it was
the design of the statute to prohibit and punish.
Nor do we find anything in the provisions of the statute
inconsistent with this conclusion in the fact that the statute
makes the rate as published or filed conclusive on the carrier. The
carrier files and publishes the rate. It may well be concluded by
its own action. But neither shipper nor carrier may vary from the
duly filed and published rate without incurring the penalty of the
law.
It may be, as urged by petitioner, that this construction
renders impossible the making of contracts for the future delivery
of such merchandise as the petitioner deals in, and that the
instability of the rate introduces a factor of uncertainty
destructive of contract rights heretofore enjoyed in such property.
This feature of the law, it is insisted, puts the shipper in many
kinds of trade at the mercy of the carrier, who may arbitrarily
change a rate upon the faith of which
Page 209 U. S. 82
contracts have been entered into. But the right to make such
regulations is inherent in the power of Congress to legislate
respecting interstate commerce, and such considerations of
inconvenience or hardship address themselves to the lawmaking
branch of the government.
New Haven Railroad Company v.
Interstate Commerce Commission, 200
U. S. 399. It may be that such contracts should be
recognized, giving stability to rates for limited periods; that the
contracts being filed and published, and the rate stipulated known
and open to all, no injustice would be done. But, as we have said,
such considerations address themselves to Congress, not to the
courts. It is the province of the judiciary to enforce laws
constitutionally enacted, not to make them to suit their own views
of propriety or justice.
The statute, being within the constitutional power of Congress,
and being in force when the contract was made, is read into the
contract and becomes a part of it.
If the shipper sees fit to make a contract covering a definite
period, for a rate in force at the time, he must be taken to have
done so subject to the possible change of the published rate in the
manner fixed by statute, to which he must conform or suffer the
penalty fixed by law.
The right to charge other than the published rate because of a
contract alleged to have provided for the rate in force at the
time, but, owing to changed conditions, subsequently becoming
inadequate to provide for the payment of the published rate, was
dealt with by this Court in
New Haven Railroad Co. v.
Interstate Commerce Commission, 200 U.
S. 361, where a contract for the purchase and carriage
of coal at its inception produced the established rate to the
carrier, which it subsequently failed to do. This Court, speaking
through MR. JUSTICE WHITE, said:
"Further, as the prohibition of the Interstate Commerce Act is
ever operative, even if the facts established that at the
particular time the contract was made, considering the then cost of
coal and other proper items, the net published tariff of
Page 209 U. S. 83
rates would have been realized by the Chesapeake & Ohio from
the contract, which is not the case, it is apparent that the
deliveries under the contract came under the prohibition of the
statute whenever, for any cause, such as the enhanced cost of coal
at the mines, an increase in the cost of the ocean carriage, etc.,
the gross sum realized was not sufficient to net the Chesapeake
& Ohio its published tariff of rates. This must be the case in
order to give vitality to the prohibitions of the Interstate
Commerce Act against the acceptance at nay time by a carrier of
less than its published rates. We say this because we think it
obvious that such prohibitions would be rendered wholly ineffective
by deciding that a carrier may avoid those prohibitions by making a
contract for the sale of a commodity, stipulating for the payment
of a fixed price in the future, and thereby acquiring the power,
during the life of the contract, to continue to execute it although
a violation of the Act to Regulate Commerce might arise from doing
so."
It is alleged that the indictment is insufficient in that it
fails to set out the kind of device by which traffic was obtained,
and of what the concession consisted, and how it was granted.
Authorities are cited to the proposition that, in statutory
offenses, every element must be distinctly charged and alleged.
This Court has frequently had occasion to hold that the accused is
entitled to know the nature and cause of the accusation against
him, and that a charge must be sufficiently definite to enable him
to make his defense and avail himself of the record of conviction
or acquittal for his protection against further prosecutions, and
to inform the court of the facts charged, so that it may decide as
to their sufficient in law to support a conviction, if one be had,
and the elements of the offense must be set forth in the indictment
with reasonable particularity of time, place, and circumstances.
And it is true it is not always sufficient to charge statutory
offenses in the language of the statutes, and, where the offense
includes generic terms, it is not sufficient that the indictment
charge the offense in the same generic terms, but it must state the
particulars.
Page 209 U. S. 84
United States v. Hess, 124 U.
S. 483;
Evans v. United States, 153 U.
S. 584. But an indictment which distinctly and clearly
charges each and every element of the offense intended to be
charged, and distinctly advises the defendant of what he is to meet
at the trial, is sufficient.
And in
Ledbetter v. United States, 170 U.
S. 606,
170 U. S. 612,
Mr. Justice Brown, speaking for the Court, said:
"Notwithstanding the cases above cited from our reports, the
general rule still holds good that, upon an indictment for a
statutory offense, the offense may be described in the words of the
statute, and it is for the defendant to show that greater
particularity is required by reason of the omission from the
statute of some element of the offense."
In the present case, no objection was made to the indictment
until after verdict by motion in arrest of judgment.
Had it been made by demurrer or motion and overruled, it would
not avail the defendant, in error proceedings, unless it appeared
that the substantial rights of the accused were prejudiced by the
refusal to require a more specific statement of the particular mode
in which the offense charged was committed.
See Rev.Stat.
§ 1025;
Connors v. United States, 158 U.
S. 408,
158 U. S.
411.
There can be no doubt that the accused was fully advised of, and
understood, the precise facts which were alleged to be a violation
of the statute.
As we interpret this law, it is intended, among other things, to
prohibit and punish the receiving of a concession for the
transportation of goods from the duly filed and published rate.
Each and all of the elements of the offense, with allegations of
time, place, kind of goods, and name of carrier, are distinctly
charged in the indictment, and include the fixing of the published
rate at 23 cents per 100 pounds; the changing of the rate and the
new publication at 35 cents per 100 pounds; the knowledge of this
change on the part of the shipper, and the carriage of the goods
over a described route at a concession of the difference between
the published and the contract rate -- all these
Page 209 U. S. 85
facts being stated, the indictment is clearly sufficient.
Whether it was necessary to charge actual knowledge of the change
of rate on the shipper's part is a question not involved in this
case, as the indictment charges such knowledge, and the facts
stipulated show that the shipper knew of the establishing of the
new rate when the goods described in the indictment were
shipped.
It is again contended that the submission in the trial court of
the question of whether there was a device to avoid the operation
of the act and to obtain the transportation at the less rate was
prejudicial to the petitioners, as such issue was not within the
agreed facts upon which the case was tried.
It is true, as we have held in another part of this opinion,
that no device or contrivance, secret or fraudulent in its nature,
is requisite to the commission of the offense outlined in the
statute, and that any means by which transportation by a concession
from the established rate was had is sufficient to work a
conviction. Hence, this charge was not prejudicial to the
petitioner.
It is contended by the petitioner that there is nothing in the
facts found in this case to show any intentional violation of the
law; that, on the contrary, the petitioner believed itself to be
within its legal rights in insisting upon the performance of its
contract, and maintained in good faith that the Interstate Commerce
Act did not and could not interfere with it, and that the statute
had no application to a shipment of goods for exportation in the
manner shown in this case. While intent is, in a certain sense,
essential to the commission of a crime, and in some classes of
cases it is necessary to show moral turpitude in order to make out
a crime, there is a class of cases within which we think the one
under consideration falls, where purposely doing a thing prohibited
by statute may amount to an offense, although the act does not
involve turpitude or moral wrong. In this case, the statutes
provide it shall be penal to receive transportation of goods at
less than the published rate. Whether shippers who pay a rate under
the honest belief that it is the lawfully established rate, when in
fact it is not, are
Page 209 U. S. 86
liable under the statute because of a duty resting on them to
inform themselves as to the existence of the elements essential to
establish a rate as required by law is a question not decided,
because not arising on this record. The stipulated facts show that
the shippers had knowledge of the rates published, and shipped the
goods under a contention of their legal right so to do. This was
all the knowledge or guilty intent that the act required. 1
Bish.Crim.Law (5th ed.) § 343. A mistake of law as to the right to
ship under the contract after the change of rate is unavailing upon
well settled principles.
Reynolds v. United States,
98 U. S. 145.
Finding no error in the judgments of the circuit court of
appeals, the same are
Affirmed.
MR. JUSTICE MOODY took no part in the disposition of this
case.
MR. JUSTICE BREWER, dissenting:
I dissent from the opinion and judgment in this case, and,
without noticing other objections, I rest that dissent upon this
single ground: on June 17, 1905, the Burlington Railway Company
made a contract with the petitioner, the Armour Packing Company,
for the transportation of certain products from Kansas City,
Kansas, to New York, this contract to remain in force until
December 31, 1905. No objection is made to the reasonableness of
this contract or the rates named. The time during which it was to
run was brief, less than seven months, and, but for the legislation
of Congress, there would be no question of its validity, or that it
could be enforced without subjecting either party thereto to any
liability, civil or criminal. On August 6 the Burlington Company
and its connecting carriers filed with the Interstate Commerce
Commission an amendment to their tariffs, which was duly posted and
published, and by which the rate from Kansas City, Kansas, to New
York, was increased.
On August 17, 1905, the Armour Packing Company delivered
Page 209 U. S. 87
to the Burlington Company, under its contract, sixty-seven
tierces of oleo oil for transportation to New York. The railway
company accepted the shipment, issued a through bill of lading, and
received pay upon the basis of the rates fixed by the contract of
June 17. Now, because the packing company insisted upon compliance
by the railway company with its contract of transportation -- and
the railway company (recognizing the binding force of the contract)
accepted the transportation and received payment at the rates named
therein -- the packing company is adjudged a criminal and fined the
sum of $15,000.
I want to emphasize this matter. The railway company and the
packing company entered into a fair and reasonable contract for
transportation. Independently of the statute, it was valid in all
respects, and could have been enforced by the packing company
against the railway company, but, according to the ruling of the
Court, the railway company was authorized arbitrarily to break the
contract, raise the amount to be paid for transportation, thus
unsettling the business of the shipper, even, it may be, to the
extent of wholly destroying it. Sustaining under those
circumstances the power of the carrier and punishing the shipper
shocks my sense of justice, and I cannot impute to Congress an
intent by its legislation to make possible such a result.
It has been one of the boasts of our jurisprudence that it
upholds the sacredness of contracts. By constitutional provision, a
state is estopped from passing a law impairing the obligation of a
contract, and again and again has this Court stricken down
legislation having such effect. While there is no such restriction
upon the power of Congress, yet Congress has in this case broken no
contract. It has simply, as held by the Court, given permission to
a carrier, arbitrarily and without inquiry or decision by any
tribunal, to repudiate its contract.
Again, we have held that, in "enacting the statutes establishing
the Interstate Commerce Commission, the purpose of Congress was to
facilitate and promote commerce."
Texas
& Pacific Railway v. Interstate Commerce
Commission, 162 U.S.
Page 209 U. S. 88
197,
162 U. S. 198.
But to deny to parties the power of agreeing upon rates of
transportation for a reasonable time tends to destroy, and not
promote, commerce. One of the conditions of successful business --
one of the things which induces new industries -- is the ability to
provide in advance for certainty of expenditures, including among
them the cost of transportation. Who will engage in any new
enterprise or invest money in a manufacturing industry when he
knows that he cannot make a definite contract for rates of
transportation to and from his factory, but is advised that
whatever contract he makes may, at the whim of the carrier, upon
ten days' notice, be set aside and a higher rate imposed?
Further, it seems to be implied that Congress has given express
authority to the carrier to raise its rates, but this is not so.
The single provision is that it shall not raise its rates without
giving ten days' notice. It is a limitation upon power, instead of
a grant of authority.
It may be said that the remedy of the shipper is to pay the
increased rates and then sue the carrier for the excess. But upon
what ground can such an action be maintained? If the contract is no
longer valid, if it has been destroyed by the mere action of the
carrier in publishing a new tariff, and the rates of the latter are
in themselves reasonable, although in excess of the contract
provisions, how can a shipper recover damages? The contract is
gone, has ceased to be valid, the new rates are reasonable, and the
shipper must abide by the consequences of the arbitrary act of the
carrier.
But it may be said that prescribing the limitation of ten days'
notice of an increase in rates is an implied authority to the
carrier to make such a raise, providing the new rates are
reasonable. To my mind it seems more in accordance with the spirit
and purpose of the Interstate Commerce Act to hold that, there
being no express authority given to raise rates, the fact that the
railway company has made a contract to operate for a reasonable
time should be construed as an inhibition upon its right to make
such a raise, and that the rates as fixed by its
Page 209 U. S. 89
contract should continue for all shippers until the termination
of the period named therein.
Obviously, from the tone of the opinion of the Court, the wrong
done to the shipper is recognized, and the argument is only that
the responsibility for the wrong rests upon Congress. In other
words, the Court has unloaded upon Congress the injustice which the
construction placed by it upon the statute accomplishes. To my
mind, a better way would be to enforce the contract and thus secure
justice in this case, leaving to Congress the enactment of
additional legislation, if deemed necessary, to prevent the
possibilities of secret arrangements between carrier and
shipper.
I am authorized to say that the CHIEF JUSTICE and MR. JUSTICE
PECKHAM concur in this dissent. They are also of the opinion that
the trial court, the District Court of the Western District of
Missouri, had no jurisdiction of the alleged offense, but that such
jurisdiction was vested in the District Court of Kansas, holding
that, when goods are delivered to the carrier, and the shipper has
solicited, accepted, or received any rebate, concession, or
discrimination from such carrier "in respect to the transportation"
of the goods, the crime is then complete, at least so far as
regards the shipper, and it cannot be made a continuing crime in
each district through which the goods pass in their transportation.
The Constitution has made provision for the venue of criminal
actions or prosecutions, and their nature cannot be altered by
legislative enactment, so as to embrace the whole country in one
vast district. A provision in a statute of this nature, by which it
is possible to find an indictment and to have a trial at the most
remote point from the actual commission of the offense, ought not
to be approved as a compliance with the Constitution.