ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK.
MR. JUSTICE DAY delivered the opinion of the court.
This proceeding is here under the act of March 2, 1907, c. 2564, 34 Stat. 1246, permitting the Government to bring to this court a case where the court below sustains a demurrer to the indictment, in which the judgment involves the construction of a Federal statute upon which the indictment is founded.*fn1 The indictment to which the demurrer was sustained in this case charges that the Missouri Pacific Railway Company, the Cleveland, Cincinnati, Chicago and St. Louis Railroad Company, the Lake Shore and Michigan Southern Railway Company and the New York Central and Hudson River Railroad Company established a joint tariff of rates, fares and charges which was filed with the Interstate Commerce Commission by the Missouri Pacific Railway Company, in which the rate set forth and enforced
from Poplar Bluff, Missouri, to New York upon cooperage materials was 35 cents for each 100 pounds. It is then charged that in January, 1898, the defendant's traffic manager, Nathan Guilford, and Lowell M. Palmer, president of and agent for the Brooklyn Cooperage Company, entered into an unlawful agreement and arrangement for the shipping of cooperage material over the through line and route aforesaid from Poplar Bluff, Missouri, to New York City, providing that for the said transportation the Brooklyn Cooperage Company should pay to the aforesaid common carriers the lawfull published rates and charges; that thereafter the defendant, the New York Dentral and Hudson River Railroad Company, should pay to the said Palmer, as agent for the cooperage company, the sum of 5 4/5 cents for each 100 pounds of said cooperage material so transported, thereby reducing the lawful tariff in that amount, with the result that such cooperage material should and would be transported at a less rate than that named in the published tariffs. The indictment than charged a delivery to the Missouri Pacific Railroad Company at Poplar Bluff for shipment to New York of cooperage material, which was accordingly shipped to New York by the connecting carriers aforesaid, and over the continuous line and route so established. The indictment charges the payment of certain sums by the defendant to Palmer for the benefit of the cooperage company for rebates and concessions in respect to the carriage of said cooperage material. Different counts in the indictment cover specifically different payments.
The effect of these transactions is charged to be that the defendant did thereby unlawfully and willfully give a rebate and concession in violation of the act to regulate commerce, whereby the property was transported by said corporation at a less rate than that named in the tariffs aforesaid, published and filed by such common carrier, as required by said act to regulate commerce and the acts amendatory thereof and supplemental thereto.
We need not repeat the discussion had as to the objections
to the Elkins act, 32 Stat. 847, which were considered in Nos. 57 and 69, ante. The court below sustained the demurrer upon the ground that the defendant company, the New York Central and Hudson River Railroad Company, is not averred to have filed with the Interstate Commerce Commission the through rate at which the transportation was had, but, as charged in the indictment, the same was filed by the initial common carrier, the Missouri Pacific Company. 157 Fed. Rep. 293. The question then is, Can a carrier be prosecuted under the Elkins act for the offense charged in this indictment where it is a party to a joint rate but has not filed and published the same? The charge in the indictment is not for the failure of the New York Central and Hudson River Railroad Company to publish the joint tariff, if it were required to do so by the act, but is for the giving of a rebate or concession, and it is contended that the first section of the Elkins act makes it unlawful to give or receive any rebated, etc., "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 acts amendatory thereto, or whereby any other advantage is given or discrimination practiced." The argument is that inasmuch as the tariff was filed and published by the Missouri Pacific Company and not by the defendant railroad company, it could not be prosecuted for the offense alleged in the indictment. By § 6 of the act of March 2, 1889, c. 382, 25 Stat. 855, it is required, concerning the filing of tariffs:
"And in cases where passengers and freight pass over continuous lines or routes operated by more than one common carrier, and the several common carriers operating such lines or routes establish joint tariffs of rates or fares or charges for such continuous lines or routes, copies of such joint tariffs shall also, in like manner, be filed with said commission."
It is said to have been the practice that such joint tariffs should be filed by the initial carrier. In any event, it was contended and was held by the Circuit Court that inasmuch as the
Elkins act referred only to the tariffs "published and filed by such carrier," and the rebates in this case had been given by a carrier who did not publish and file the rate, the latter company did not come within the terms of the act. We find, however, that § 1 of the Elkins act, in which ...