1. A shipper may be guilty of the offense of obtaining an
unlawful concession, in violation of § 1 of the Elkins Act, without
guilty knowledge or collusion on the part of the carrier.
United States v. P. Koenig Coal Co., ante p.
270 U. S. 512. P.
270 U. S.
523.
2. A preference consisting of an assignment and transportation
of coal cars contrary to a priority order of the Interstate
Commerce Commission violates § 1 of the Elkins Act, no publication
of such an order in the carrier's tariff being necessary. P.
270 U. S.
524.
3. The Transportation Act, § 402, par. 15, authorized the
Commission to fix priorities with reference to transportation as
well as the furnishing of cars. P.
270 U. S.
525.
4. An order of the Commission affecting the furnishing, loading,
and consignment of cars, construed and
held applicable to
transportation as well as car service.
Id.
Reversed.
Error to a judgment of the district court sustaining a demurrer
to an indictment alleging that the shipper obtained priority in
transportation of coal in violation of the Elkins Act.
Page 270 U. S. 522
MR. CHIEF JUSTICE TAFT delivered the opinion of the Court.
This case on its facts is similar to that of
United States v.
P. Koenig Coal Co., just decided,
Page 270 U. S. 523
ante, p.
270 U. S. 512. The
indictment against the Cement Company embraces 15 counts, and each
count shows that the Cement Company, with the assistance of the
Bewley Darst Coal Company, while Service Order No. 23 of the
Interstate Commerce Commission was in force, obtained a billing and
consignment of cars of coal by the Louisville & Nashville
Railroad Company from a mine in Kentucky to the Municipal Light
& Power Company at Four Mile Lake in Michigan, where the coal
was delivered in accordance with direction and was appropriated by
the Cement Company for its use; that the building and the
preference were granted by the carrier company on the assumption
that the coal was to be delivered and used by a public utility
company, which was in class No. 2 under Order No. 23, instead of
class No. 5, in which coal for making cement was embraced. The
district court sustained the demurrer to this indictment on the
same ground as in the
Koenig case, that the Elkins Act
requires the collusion of the carrier with the shipper and the
carrier's conscious violation of law in the concession granted, and
that, when this is negatived in the indictment, the indictment must
fail. That ground we have held to be without weight in the
Koenig case. It was the only one pressed on us.
In this case, the counsel for the defendant advances in his
brief and argument two other grounds raised by the demurrer on
which he contends the indictment should have been held bad. One of
them is that § 1 of the Elkins Act, under which the indictment is
found, must be limited to a concession or discrimination which
violates a tariff published and filed by a carrier, that as a
rebate without such tariff is not unlawful within that section, so
a concession or discrimination is not. The contention is that the
published tariff should have indicated that the order of
distribution of cars should be as Order 23 requires.
Page 270 U. S. 524
The Elkins Act does not require such a tariff as to any other
advantage or discrimination than a rebate. It declares to be an
offense any device whereby transportation shall be given at any
less rate than named in the published tariff "or whereby any other
advantage is given or discrimination is practiced." Where the
offense consists in a rebate, as that term is usually understood,
to-wit, transportation at a less rate in dollars and cents than the
published rate which the shipping public are charged, a published
tariff is, of course, necessary to constitute the standard,
departure from which is the crime. Where there is no pecuniary
reduction of the rates as published, and the tariff is complied
with but the law against favoritism and discrimination is infringed
by the making of a concession or the granting of an advantage not
specifically measured in dollars and cents, reference to a
published tariff is unnecessary. There is nothing in the statute
that indicates the necessity of a published tariff which should
expressly recite the fact that no unfair or unequal concession or
advantage in the distribution of coal cars to shippers, or in the
priority of their shipment, should be afforded. The fact that the
advantage or discrimination is unlawful is plain from the
description of its character, as shown in this indictment without
reference to the rates fixed in the tariff.
See Lambert Run
Coal Co. v. B. & O. R. Co., 258 U.
S. 377,
258 U. S. 378.
Such a published tariff seems not to have been present in
C.,
C., C. & St.L. Ry. Co. v. Hirsch, 204 F. 849, and in
Central of Georgia Ry. v. Blount, 238 F. 292, in which
leases of property by carriers to shippers at inadequate rentals
were held to be unlawful concessions. Nor in
Vandalia Railway
v. United States, 226 F. 713, where a loan by a carrier to
shipping interests at less than market rate was held to be an
unlawful concession. Nor in
Northern Central Railway v. United
States, 241 F. 25, where the waiving of royalties for the use
of coal lands leased to
Page 270 U. S. 525
shipping interests was held to be an unlawful concession. Nor in
Dye v. United States, 262 F. 6, in which the agent of a
railway company who secured an excessive number of cars for one of
a great number of mines between which, by order of the Interstate
Commerce Commission, in an emergency, cars were to be distributed
according to a rule, was convicted under the Elkins Act, and the
Fourth Circuit Court of Appeals sustained the conviction.
Service Order No. 23 herein was issued under the Transportation
Act, and had the force of law.
Avent v. United States,
266 U. S. 127,
266 U. S. 131;
United States v. Grimaud, 220 U.
S. 506. In the absence of a specific requirement for its
publication in a tariff either in the act authorizing the service
order or in the Elkins Act, we can find no reason for making it
essential in the enforcement of the statute, and no case is cited
to suggest one.
The other ground urged by counsel for the defendant is, if we
understand it, that paragraph 15 of § 402 of the Transportation Act
did not authorize and delegate to the Interstate Commerce
Commission the fixing of preference and priorities in
transportation, that paragraph 7 of the Commission's order
prescribed classes of purposes and order or classes only with
respect to car service, and made no rule applicable to the
transportation of coal for different classes of purposes and
different order of classes, that car service does not include
transportation, and that the defendant here is indicted for
securing a concession in transportation by which he obtained an
improper class under a classification which the Commission
therefore had no authority to make, and which it did not in fact
require. We think the argument does not give proper effect to
paragraph 15 and the words and significance of the service order.
By paragraph 15, the Commission is authorized, first, to suspend
the operation of any or all rules, regulations or practices then
established with respect to car service for such time as may be
determined
Page 270 U. S. 526
by the Commission; second, to make such just and reasonable
directions with respect to car service without regard to the
ownership as between the carriers of cars, during such emergency as
in its opinion will best promote the service in the interest of the
public and the commerce of the people; and, third, to give
directions for preference or priority in transportation, embargoes,
or movement of traffic under permit and for such periods as it may
determine, and to modify, change, suspend or annul them. The
service order, after reciting the emergency, directs each common
carrier east of the Mississippi River to the extent to which it is
unable promptly to transport all freight traffic, to give
preference and priority to coal, to give preference and priority to
the movement, exchange, and return of empty coal cars, to furnish
coal mines with certain classes of cars, to require that
noncoal-loading carriers deliver empty coal cars to the maximum
ability of each, to enable the connecting coal loading companies to
receive and use the coal cars so delivered for the preferential
purposes set forth in the order; to discontinue the use of coal
cars for the transportation of commodities other than coal during
the order, to place an embargo on the receipt by any consignee of
coal in suitable cars who shall fail or refuse to unload the coal
seasonably, and finally, in the supply of cars to mines, to place,
furnish, and assign coal mines with cars suitable for the loading
and transportation of coal for certain classes of consignees, and
in a certain order, forbidding reconsignment or diversion. It seems
to us clear that the order of the Commission affects the furnishing
of cars, their loading, their consignment, and thus necessarily
their movement in transportation, and corresponds fully with the
powers conferred by paragraph 15, and that paragraph 15 and Service
Order No. 23 both apply not only to priority of car service, but
also to that of transportation. Certainly one who secures
reconsignment and diversion from a lower to a higher class of
consignees for delivery violates the service order in terms.
In urging this objection to the Indictment, reliance is had by
defendant upon the opinion of this Court in the case of
Peoria
& Pekin Union Ry. Co. v. United States, 263 U.
S. 528. There, the Interstate Commerce Commission sought
under paragraph 15 to compel a terminal carrier to switch, by its
own engines and over its own tracks, freight cars tendered by or
for another connecting carrier. It was held that the exercise of
the emergency power of the Commission in transferring car equipment
from one carrier to the use of another under paragraph 15 was
strictly to be construed, and that the provision as to car service
did not authorize the Commission to impose upon the terminal
carrier, without a hearing, the affirmative duty not only of
turning over its cars and equipment to another carrier, as
contemplated in paragraph 15, but also that of itself doing the
work of the transportation of and for another carrier. It was in
this connection that this Court used the expression that car
service connotes the use to which vehicles of transportation are
put, but not the transportation service rendered by means of them.
The opinion expressly affirms the authority of the Commission under
paragraph 15 to give regulatory directions for preference or
priority in transportation. The language of this Court in the
Peoria case referred to is of no aid to the defendant
here.
The judgment is
Reversed.