209 U.S.

Argument for the United States.

injuriously it is purely incidental and does not come within the constitutional prohibition. Pennsylvania v. Wheeling & Belmont Bridge Co., 18 How. 421, 434; South Carolina v. Georgia, 93 U. S. 13; Cooley v. Board of Port Wardens, 12 How. 299; Norris v. Boston, 7 How. 414; United States v. Wood, 145 Fed. Rep. 412;

The contract between the Burlington company and the packers, even if valid as between carrier and shipper after August 7, 1905, cannot avail either carrier or shipper as a defense to a departure from the filed and published rate in force after that date.

Since the passage of the Elkins amendment the shipper is liable equally with the carrier for a departure from the filed and published rate, and the mere soliciting, accepting, or receiving of a concession or rebate is an offense. No intent is necessary to the completion of that offense. Where the intent is not essential, a mistake or ignorance of fact is quite as immaterial as mistake or ignorance of law. United States v. Leathers, 6 Sawyer, 17; State v. Griffith, 67 Missouri, 287; Beckham v. Nacke, 56 Missouri, 546; People v. Roby, 52 Michigan, 577; Church v. Minneapolis & St. L. Ry. Co., 14 S. Dak. 443.

The law stood upon the statute books when this contract was made. Both parties contracted with reference to it, and what subsequently might be done under it, even to the extent, as has been held, that the law itself might be changed, because the power to regulate and legislate respecting such commerce is reserved in Congress. Fitzgerald v. Grand Trunk Ry. Co., 63 Vermont, 173; McGowan v. Wilmington, 95 N. Car. 417; Clarendon v. Rutland &c. Ry. Co., 75 Vermont, 6; St. Anthony v. St. Paul Water Co., 168 U. S. 372.

The indictments in these cases are sufficient. The employment of a device is not an essential element of the offense, and with respect to the concession charged, the indictment fully and sufficiently described it, what it was and of what it consisted. United States v. Britton, 1Q7 U. S. 655 (cited by petitioners), discussed. and distinguished. The charge in the inVOL. CCIX-5

dictment fully meets all legal requirements. United States v. Simmons, 96 U. S. 360, 362. And see Connors v. United States, 158 U. S. 408, 411; Ledbetter v. United States, 170 U. S. 606, 611.

The facts fully warrant the finding of criminal guilt. The packers are conclusively presumed to have intended to do what they did and are bound by the legal consequences of their acts. New Haven R. R. Co. v. Interstate Commerce Commission, 200 U. S. 361, 396-398.

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 of February 19, 1903, chap. 708, 32 Stat. 847, in obtaining from the Chicago, Burlington and 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 packing house 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 Fed. Rep. 1.

The facts in the Armour case are briefly these: From May 9 to August 6, 1905, the Chicago, Burlington and 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

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 herein before 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

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 vary 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

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, ch. 104, 24 Stat. 379) 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