1. Ticket sellers and other employees of a railroad who use the
power of their positions to discriminate among passengers by
exacting sums in excess of established rates, appropriating the
excess for themselves, are punishable under § 10(1) of the
Interstate Commerce Act even though the railroad is not a party to
their conduct. Pp.
328 U. S.
190-193.
2. One of the primary purposes of the Interstate Commerce Act is
to establish uniform treatment of users of transportation
facilities. P.
328 U. S.
192.
3. Section 10 shows the clearest possible purpose to bar
railroad employees from overcharging for their own or for the
railroad's illegitimate gain. P.
328 U. S. 193.
4. The Act imposes the same duty on ticket sellers and clerks of
common carriers as that imposed on railroad officers or other
employees, to treat all the public alike as to terms and conditions
of transportation. P.
328 U. S. 193.
150 F.2d 82, affirmed.
Petitioners were indicted for violations of the Interstate
Commerce Act, and demurred to the indictments. The District Court
overruled the demurrers, 55 F. Supp. 372, and they were convicted.
The Circuit Court of Appeals affirmed. 150 F.2d 82. This Court
granted certiorari. 326 U.S. 706.
Affirmed, p.
328 U. S. 193.
Page 328 U. S. 190
MR. JUSTICE BLACK delivered the opinion of the Court.
The wartime transportation shortage during the winter of 1943
made it exceedingly difficult to obtain tickets for trains going
north from Miami, Florida. Petitioners are three ticket sellers and
one diagram clerk who were employed at that time by a railroad at
Miami. Petitioners Howitt, Lee, and Dewhurst were charged with, and
convicted for, conspiracy to violate the Interstate Commerce Act,
49 U.S.C. § 1
et seq., in that they conspired to collect
and receive unjust and unreasonable charges for passenger
transportation in violation of Section 1(5)(a); to receive and
collect greater compensation for service from certain persons than
that which would be collected from others, in violation of Section
2; to prefer particular persons to the disadvantage of others in
violation of Section 3(1), and to collect and receive compensation
in excess of that fixed by tariff schedules in violation of Section
6(7). These violations are made a crime by Section 10. [
Footnote 1] Petitioner
Page 328 U. S. 191
O'Rourke was charged with and convicted for committing
substantive offenses of the same nature. [
Footnote 2] The Circuit Court of Appeals affirmed. 150
F.2d 82. We granted certiorari because this case raises important
questions concerning the scope of the Act.
The government charged that there was a working agreement
between petitioners and certain local hotel employees under which
persons anxious to purchase railroad tickets would, in order to
obtain them, pay amounts in excess of published rates either to
petitioners directly or to the hotel employees, who in turn, would
divide the excess payments between themselves and petitioners.
[
Footnote 3]
Page 328 U. S. 192
The railroad played no part in these transactions. The
government produced a great deal of evidence to support these
charges. [
Footnote 4]
Petitioners offered no testimony or other kind of evidence to
contradict that produced by the government. Their only contention
was raised on demurrer, motion for directed verdict, and exception
to the charge of the jury. This contention, urged on several
different grounds, was that the indictment failed to charge, and
the evidence failed to establish, a crime, since the Interstate
Commerce Act, and Section 10 in particular, are primarily aimed at
railroads, and do not make discriminatory and illegal charges by
railroad employees for passenger transportation criminally
punishable unless the railroad is itself a party to the conduct.
This is still the basis of petitioners' arguments.
It is well established that one of the primary aims of the
Interstate Commerce Act and the amendments to it was to establish
uniform treatment of users of transportation facilities.
See
Mitchell v. United States, 313 U. S. 80,
313 U. S. 94-95.
The Act again and again expressly condemns all kinds of
discriminatory practices. Railroad employees can accomplish
invidious transportation discrimination whether or not their
conduct is approved or participated in by their superiors. Not only
do the Act's provisions against discrimination and special favors
fail to exempt
Page 328 U. S. 193
employees such as petitioners, but section 10, standing alone,
shows the clearest possible purpose to bar all railroad employees
from overcharging for their own or for the railroad's illegitimate
gain. The Interstate Commerce Act imposes the same duty on ticket
sellers and clerks of common carriers as that imposed on railroad
officers or other employees, to treat all the public alike as to
the terms and conditions of transportation. Railroad accommodations
are thus not to depend upon who will or can pay more because of
greater need or a longer purse.
See United States v.
Estes, 6 F.2d 902,
905.
Affirmed.
MR. JUSTICE JACKSON took no part in the consideration or
decision of this case.
[
Footnote 1]
Section 10 reads in part as follows:
"Any common carrier subject to the provisions of this part, or,
whenever such common carrier is a corporation, any director or
officer thereof, or any receiver, trustee, lessee, agent, or person
acting for or employed by such corporation, who, alone or with any
other corporation, company, person, or party, shall willfully do or
cause to be done, or shall willingly suffer or permit to be done,
any act, matter, or thing in this part prohibited or declared to be
unlawful, or who shall aid or abet therein, or shall willfully omit
or fail to do any act, matter, or thing . . . so directed or
required by this part to be done not to be so done, or shall aid or
abet any such omission or failure, or shall be guilty of any
infraction of this part for which no penalty is otherwise provided,
or who shall aid or abet therein, shall be deemed guilty of a
misdemeanor. . . ."
[
Footnote 2]
Ordinary violations of the Act are, under Section 10, punished
only by imposition of a fine. But a proviso imposes a prison term
if the violation consists of an unlawful discrimination. Petitioner
O'Rourke contends that he was charged only with violating Section
6(7), rather than Section 2, which is the unlawful discrimination
section, and that he therefore could not be imprisoned under
Section 10. This contention is frivolous. The O'Rourke indictment
clearly and explicitly also charges a violation of Section 2.
[
Footnote 3]
An
amicus brief filed with us contains the suggestion
that a rather extensive paragraph of the Court's charge to the
jury, to which exception was noted, contains language susceptible
of the construction that acceptance of a "
bona fide tip"
might constitute a violation of the Interstate Commerce Act. We
think that that language, read in its context, does not relate to
bona fide tips, but rather to excess charges which the
prospective passenger was forced to pay and which were made to look
like tips. Moreover, this paragraph of the charge also contains
instructions that employees acting alone, without participation by
the railroad, might be found guilty of violating the Act. The
exception to the paragraph was a general one. In view of what
petitioners argue here, what they argued on demurrer, and on the
motion for directed verdict, it is likely that the exception was
directed to these last mentioned instructions, and not to the
language challenged by the
amicus brief. Indeed,
petitioners introduced no evidence to show that they were receiving
bona fide tips, nor did they request any charge on the
basis of this theory. If petitioners, in excepting to the
challenged paragraph of the charge, had the "
bona fide"
tip question in mind, they should have specifically pointed this
out to the trial court.
See Allis v. United States,
155 U. S. 117,
155 U. S.
121-123. The issue raised by the
amicus brief
as to whether the Act covers
bona fide tips is therefore
not before us.
[
Footnote 4]
The Circuit Court of Appeals said that this evidence
"proved beyond question that the defendants repeatedly and
systematically took advantage of the prevailing wartime congestion
in transportation to exact from applicants for accommodations more
money than the regular rate prescribed, and appropriated the
difference to themselves."