(46 S.Ct.) Mich. 431, 190 N. W. 306; Childers v. Com-amination, Agnello was not asked and did not monwealth, 198 Ky. 848, 250 S. W. 106; State testify concerning the can of cocaine. In v. Warfield, 184 Wis. 56, 198 N. W. 854. The cross-examination, in answer to a question search of Frank Agnello's house and seizure permitted over his objection, he said he had of the can of cocaine violated the Fourth Amendment. *34 [4] It is well settled that, when properly invoked, the Fifth Amendment protects every person from incrimination by *the use of evidence obtained through search or seizure made in violation of his rights under the Fourth Amendment. Boyd v. United States, supra, 630 et seq.; Weeks v. United States, supra, 398; Silverthorne Lumber Co. v. United States, supra, 391, 392; Gouled v. United States, supra, 306; Amos v. United States, 255 U. S. 313, 316, 41 S. Ct. 266, 65 L. Ed. 654. [5, 6] The government contends that, even if the search and seizure were unlawful, the evidence was admissible because no application on behalf of defendant was made to the court for the return of the can of cocaine. The reason for such application, where required, is that the court will not pause in a criminal case to determine collateral issues as to how the evidence was obtained. See Adams v. New York, 192 U. S. 585, 594, 24 S. Ct. 372, 48 L. Ed. 575, affirming People v. Adams, 176 N. Y. 351, 68 N. E. 636, 63 L. R. A. 406, 98 Am. St. Rep. 675. But, in this case, the facts disclosing that the search and seizure violated the Fourth Amendment were not in controversy. They were shown by the examination of the witness called to give the evidence. There was no search warrant, and from the first the position of the government has been that none was necessary. In substance, Frank Agnello testified that he never had possession of the can of cocaine, and never saw it until it was produced in court. There is nothing to show that, in advance of its offer in evidence, he knew that the government claimed it had searched his house and found cocaine there, or that the prosecutor intended to introduce evidence of any search or seizure. It would be unreasonable to hold that he was bound to apply for the return of an article which he maintained he never had. Where, by uncontroverted facts, it appears that a search and seizure were made in violation of the Fourth Amendment, there is no reason why one whose rights have been so violated, and who is sought to be incriminated by evidence so obtained, may not invoke protection of the Fifth Amendment immediately and without any application for the return of the thing seized. "A rule of practice must not be allowed for any technical reason to *35 prevail over *a constitutional right.” Gouled v. United States, supra, 313 (41 S. Ct. 266). [7] And the contention that the evidence of the search and seizure was admissible in rebuttal is without merit. In his direct ex never seen it. He did nothing to waive his constitutional protection or to justify crossexamination in respect of the evidence claimed to have been obtained by the search. As said in Silverthorne Lumber Co. v. United States, supra, 392 (40 S. Ct. 183): "The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so aquired shall not be used before the court but that it shall not be used at all." The admission of evidence obtained by the search and seizure was error and prejudicial to the substantial rights of Frank Agnello. The judgment against him must be set aside and a new trial awarded. [8] But the judgment against the other defendants may stand. The introduction of the evidence of the search and seizure did not transgress their constitutional rights. And it was not prejudicial error against them. The possession by Frank Agnello of the can of cocaine which was seized tended to show guilty knowledge and criminal intent on his part; but it was not submitted as attributable to the other defendants. During the summing up of the case to the jury by the prosecuting attorney, the court distinctly indicated that the evidence was admissible only against Frank Agnello. The other defendants did not request any instruction to the jury in reference to the matter, and they do not contend that any erroneous instruction was given. Isaacs v. United States, 159 U. S. 487, 491, 16 S. Ct. 51, 40 L. Ed. 229. The packages of cocaine seized at Alba's house were carried to that place by Frank Agnello. He did this at the instance of Centorino; and in his behalf it is claimed he acted innocently and without knowledge of *36 the contents of the package. The evidence of the search and seizure made in his house tended to show that he knew what he was doing and was a willing participant in the conspiracy charged. But, so far as concerns the other defendants, it is immaterial whether he acted innocently and without knowledge of the contents of the package or knowingly to effect the object of the conspiracy. In either case, his act would be equally chargeable to his codefendants. They are not entitled to a new trial. States (C. C. A.) 278 F. 349, 354; Belfi v. United States, 259 F. 822, 828, 170 C. C. A. 622; Feder et al. v. United States, 257 F. 694, 168 C. C. A. 644, 5 A. L. R. 370; Browne v. United States, 145 F. 1, 13; United States v. Cohn, 128 F. 615, 626. See Rossi v. United Judgment against Frank Agnello reversed; judgment against other defendants affirmed. (269 U. S. 1) PATTERSON et al. v. LOUISVILLE & (Argued April 23 and 24, 1925. Decided No. 221. 1. Commerce 85-Power of Interstate Com merce Commission to relieve carrier from operation of section of Act to Regulate Commerce held to extend to after-added clause. Power of Interstate Commerce Commission to prescribe extent to which common carrier may be relieved from operation of Act to Regulate Commerce, § 4, as amended by Act June 18, 1910, § 8 (Comp. St. § 8566), is not limited to long and short haul clause, but extends also to aggregate of intermediates clause added by 1910 amendment. Mr. Justice BRANDEIS delivered the opin 2. Carriers 28-Rule as to legality of previously existing through rate greater than ag-ion of the Court. gregate of intermediates, after enactment Section 4 of the Act to Regulate Comof amendment to Interstate Commerce Act declaring such rate unlawful, stated. A through rate for long haul, greater than aggregate of intermediate rates in force and lawful on June 18, 1910, when section 4 of Act to Regulate Commerce was amended by Act June 18, 1910, § 8 (Comp. St. § 8566), by addition thereto of clause declaring it unlawful for carrier to charge any greater compensation as a through rate than the aggregate of the intermediates, remains lawful, provided an application to suspend operation of the section was made and either allowed or remained undetermined. 3. Carriers 26-Application for or granting of relief from aggregate of intermediates clause does not validate rate violative of some other section of Interstate Commerce Act. Under Act to Regulate Commerce, § 4, as amended by Act June 18, 1910, § 8 (Comp. St. § 8566), filing of application for relief from aggregate of intermediates clause, or even order granting such relief, would not validate a rate which violated some other section of act. 4. Commerce 95 - Rule as to presumption of unreasonableness and illegality of through rate higher than aggregate of intermediates stated. merce, as amended June 18, 1910 (36 Stat. 539, 547, c. 309 [Comp. St. § 8566]), provides, among other things: *7 ber *1, 1918, both the railroad companies and James C. Davis, as Agent designated by the President under section 206 of Transportation Act 1920, c. 91, 41 Stat. 456, 461 (Comp. St. Ann. Supp. 1923, § 100714 cc), were joined as defendants before the Commission and in the courts. The rates under which these shipments were made were first established Where through rate, higher than aggregate in 1892, and were proportionately increased of intermediates, is attacked under Act to regu- under the terms of General Order No. 28 of late Commerce, § 1 (Comp. St. § 8563), there the Director General of Railroads on June is a prima facie presumption that such higher 25, 1918. The case was heard upon demurthrough rate is unreasonable and unlawful, rer to the declaration, to which were anthough in proceeding under section 4, as nexed as exhibits the several complaints amended by Act June 18, 1910. § (Comp. St. § 8566), specifically declaring such before the Commission and the order of the a rate unlawful, there is no occasion to con- Commission with incorporated reports. The sider either presumption of unreasonableness or demurrers were sustained by the District justification for higher rate; the rate involved Court; judgment was entered for the debeing either violative of that section, or not de- fendants, and this judgment was affirmed pending on whether an adequate and timely ap- by the Circuit Court of Appeals. 2 F.(2d) plication to suspend operation of the section 592. The case is here on writ of error unhas been filed and granted, or remains unde-der section 241 of the Judicial Code (Comp. termined. 8 In Error to the United States Circuit Court of Appeals for the Fifth Circuit. St. § 1218). The complaint before the Commission as amended charged that the through rates For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (46 S.Ct.) were "unreasonable, excessive, and unjustly intermediates clause; that, if it has any discriminatory, contrary to the first, third, such power, it is only to the extent of reand fourth sections," and also charged spe- lieving the carrier from criminal liability cifically that they violated the aggregate of under section 10 of the act (Comp. St. § intermediates clause above quoted. The re- 8574), so that in no event can a suspension port shows that relief was not granted on relieve the carrier from civil liability to the ground of unjust discrimination under shippers; that the Commission thus retains section 3 (Comp. St. § 8565), nor on the the power under sections 8 and 9 to award ground of departure from the long and short haul clause of section 4 (Comp. St. § 8566). As to the remaining grounds of relief asserted in the complaint, the report states: 66 # * We find that, while the rates assailed appear not unduly high, they were unreasonable in and to the extent that they respectively exceeded the aggregates of the intermediate rates subject to the act; that complainants made shipments and paid and bore the charges thereon, upon the basis of the through rates and were damaged thereby; and that they are entitled to reparation on the basis of the difference between the respective through rates and the sums of the lowest intermediate rates subject to the act, applicable on all shipments which moved since the dates above stated for the several complainants." 8 *Whether the Constitution intended to base its order of reparation upon section 1 (Comp. St. § 8563), or upon the aggregate of intermediates clause of section 4, or upon both, is left uncertain by the language used. The District Court apparently assumed that the report awarded, and the declaration sought, such relief on both grounds. It held that there was no liability under section 4, be reparation for damage *suffered; that, whatever the power of the Commission to suspend the clause in question, that power does not appear to have been invoked in this case by an adequate and timely application to the Commission; that since, on any one of the above grounds, the Commission was free to award reparation upon finding damage, suffered as a result of the higher through rate, and found such damage, its report stated a prima facie liability; and that, as the declaration embodied the report, it was good on demurrer. The argument is, in our opinion, unsound. [1] The aggregate of intermediates clause was inserted in section 4 by the Act of June 18, 1910. Since that amendment, as before, the section empowers the Commission, upon special application, to "prescribe the extent to which such designated common carrier may be relieved from the operation of this section." The question whether, after the amendment, the power so conferred was still limited to the long and short haul clause, or extended also to the aggregate of intermediates clause received careful consideration immediately after the passage of the 1910 cause the Commission had found that the act. The Commission concluded that its through rates which exceeded the local had power to grant the relief applied to both of been protected by proper application for re- these clauses. In its annual report for 1911 lief from the operation of that clause of the the reasons for this conclusion were set section. It held that there was no liability forth. Pages 19, 20. The construction under section 1, because the Commission then adopted has been acted upon consistentfound that the through rates, although high-ly ever since.1 So far as appears, no court, er than the aggregate of the intermediates, were "not unduly high." The Circuit Court of Appeals construed the declaration as seeking recovery only on the ground that the quoted clause of section 4 had been violated and it affirmed the judgment because the shippers had failed to show that this violation had caused them special pecuniary damage. The declaration, and the brief and argument submitted for the shippers in this court, make it clear that the only cause of action sued on is the violation of the aggregate of intermediates clause of section 4. We have, therefore, no occasion to pass upon the effect of the finding that the through rates were "not unduly high," or on other questions discussed by counsel bearing upon liability under section 1. federal or state, has taken a different view. And Congress has acquiesced. In support of the contention that the power to relieve from the operation of the section does not cover this case, the shippers point to the fact that, while the charge of the *10 *higher through rate did not become unlawful per se until the provision to that effect was inserted in section 4 by the 1910 act, the Commission had repeatedly held that a through rate higher than the aggregate of the intermediates was prima facie unreasonable.2 From this they argue that the con 1 Humphreys Godwin v. Yazoo & M. V. R. R. Co., 31 Interst. Com. Com'n R. 25, 29; Through Rates from Buffalo-Pittsburg Territory, 36 Interst. Com. Through Rates to Points in LouiThe shippers insist that, since the declara- Com'n R. 325; siana and Texas, 38 Interst. Com. Com'n R. 153; tion set forth an order of reparation for vi- Du Pont de Nemours & Co. v. Director General, 62 olation of the aggregate of intermediates Interst. Com. Com'n R. 109; Fares between New clause duly made upon complaint and hearing York and Points West of Newark, 74 Interst. Com. the demurrer should have been overruled. & P. Ry. Co., 83 Interst. Com. Com'n R. 499, 500. Com'n R. 516; Fidelity Lumber Co. v. Louisiana The argument is that the Commission is 2 Hope Cotton Oil Co. v. Texas & P. Ry. Co., 12 without power to suspend the aggregate of Interst. Com. Com'n R. 265; Coomes v. Chicago, roneous. struction given to the amended act by the defendant carriers would result in abridging, instead of enlarging, the rights of shippers in this respect, and therefore should not be adopted. We think such a conclusion erThe construction given the section by the carriers does not result in abridging the rights of shippers. As a result of the amendment such through rates, unless protected by proper application, are not merely prima facie unreasonable, but unlawful by express statutory provision. The Commission, while claiming the power to suspend the operation of the clause in question, has continued to hold that, as before the amendment, such through rates are prima facie unreasonable when attacked under section 1 of the act.3 charged unless, prior to its introduction, the Commission had, upon special application, granted authority therefor. Intermountain Rate Cases, 234 U. S. 476, 34 S. Ct. 986, 58 L. Ed. 1408. [2] The shippers' contention that relief from the operation of the aggregate of intermediates clause was not invoked by an adequate and timely application is also unsound. Under the second proviso of section 4 the rates complained of, if in effect on June 18, 1910, and then lawful, remained so, provided an application to suspend the operation of the section was duly made, and was either allowed or remained undetermined. The District Court construed the report of the Commission as finding that the then existing rates here in question were so protected. We also construe the report as find*No good reason is shown for denying to ing, in effect, that application for relief was the words used their clear and natural mean-made, and was both adequate and timely. ing. Compare Skinner & Eddy Corp. v. United States, 249 U. S. 557, 564-658, 39 S. Ct. 375, 63 L. Ed. 772. On the other hand, there is good reason why the two prohibi 11 tions of section 4 should be treated similarly. Apart from statutory enactment, it is prima facie unreasonable to charge more for a shorter than for a longer haul. To charge more for a through haul than the aggregate of the intermediate rates is likewise prima facie unreasonable. In each case conditions may exist which, if shown, would establish the reasonableness of the rate in question. Under the Act to Regulate Commerce as originally enacted the carriers were, in each class of cases, at liberty to introduce the rate without first securing the consent of the Commission. If its invalidity were later asserted, they could escape liability by establishing then its justification. By amendatory legislation, Congress provided, in each class of cases, that the rate should not be M. & St. P. Ry. Co., 13 Interst. Com. Com'n R. 192; Oshkosh Logging Tool Co. v. Chicago & N. W. Ry. Co., 14 Interst. Com. Com'n R. 109; Hardenberg, Dolson & Gray v. Northern Pacific Ry. Co., 14. Interst. Com. Com'n R. 579; Momsen & Co. v. Gila Valley, G. & N. Ry. Co., 14 Interst. Com. Com'n R. 614, 615; Lindsay Bros. v. Michigan Central R. R. Co., 15 Interst. Com. Com'n R. 40; Michigan Buggy Co. v. Grand Rapids & I. Ry. Co., 15 Interst. Com. Com'n R. 297; Lindsay Bros. v. Baltimore & O. S. W. R. R. Co., 16 Interst. Com. Com'n R. 6; WellsHigman Co. v. Grand Rapids & I. Ry. Co., 16 Interst. Com. Com'n R. 339; Blodgett Milling Co. v. Chicago, M. & St. P. Ry. Co., 16 Interst. Com. Com'n R. 384; Smith Mfg. Co. v. Chicago, M. & G. Ry. Co., 16 Interst. Com. Com'n R. 447; Milburn Wagon Co. v. Lake Shore & M. S. Ry. Co., 18 Interst. Com. Com'n R. 144; Windsor Turned Goods Co. v. Chesapeake & O. Ry. Co., 18 Interst. Com. Com'n R. 162. See, e. g., Humphreys Godwin Co. v. Yazoo & M. V. R. R. Co., 31 Interst. Com. Com'n R. 25; Alabama Packing Co. v. Louisville & N. R. R. Co., 47 Interst. Com. Com'n R. 524, 529; Williams Co. v. Pennsylvania Co., 50 Interst. Com. Com'n R. 531, Virginia-Carolina Chemical Co. Atlantic Coast Line R. R. Co., 78 Interst. Com. Com'n R. 107; Davison & Namack Foundry Co. v. Pennsylvania R. R. Co., 81 Interst. Com. Com'n R. 345; La Crosse Chamber of Commerce v. Director General, 93 Interst. Com. Com'n R. 602. 533; V. [3, 4] It is true that the due filing of such an application for relief from the aggregate of intermediates clause, or even an order granting relief thereon, would not render 12 legal a *rate which violated some other section of the act. See United States v. Merchants', etc., Ass'n., 242 U. S, 178, 188, 37 S. Ct. 24, 61 L. Ed. 233. A through rate would be unlawful, despite such an order, if it violated section 3 because unjustly discriminatory, or if it violated section 1 because unreasonably high. The Commission is correct in holding, as before stated, that if a through rate higher than the aggregate of the intermediates is attacked under section 1, the prima facie presumption that such higher through rate is unreasonable, and hence unlawful, obtains now as it did before the 1910 amendment. But no such question could arise in a proceeding limited to section 4. In a proceeding for violation of either clause of section 4, there is no occasion to consider either the presumption of unreasonableness or the existence of a justification for making the through rate higher. Neither is relevant; for if there has been an adequate and timely application within the six months, which application remains undetermined, or an application filed later and granted, there can be no violation of that section. If there was no such application filed, the section is violated by the higher through rate, even if conditions are shown which would have justified the rate as against a charge of unreasonableness under section 1. Since there can be no recovery under section 4 because of the pendency of an application for relief, we have no occasion to consider whether the rule of Davis v. Portland Seed Co., 264 U. S. 403, 44 S. Ct. 380, 68 L. Ed. 762, as to damages applies to violations of the aggregate of intermediates clause, nor whether it applies alike to suits based on reparation orders and to those instituted in the courts without such prior order. Affirmed. (46 S.Ct.) MEMORANDUM DECISIONS DISPOSED OF AT OCTOBER TERM, 1925 (269 U. S. 590) ton, of Wheaton, Minn., for the State of MinneNo. 5, original. The STATE OF NEW sota. Dismissed, per stipulation. YORK, complainant, v. The BULLS FERRY CHEMICAL COMPANY. Oct. 5, 1925. Messrs. F. La Guardia and Edgar Bromberger, both of New York City, for the State of New York. Mr. Julian A. Gregory, of New York City, for defendant. Dismissed, per stipulation. 7 No. 15, original. The STATE OF ARKANSAS, complainant, v. The STATE OF MISSISSIPPI. Oct. 5, 1925. See, also, 42 S. Ct. 585. Messrs. Wm. J. Driver, of Osceola, Ark., and J. S. Utley, of Little Rock, Ark., for the State of Arkansas. Mr. John W. Cutrer, of Clarksdale, Miss., for the State of Mississippi. Rule to show cause why bill of complaint should not be dismissed ordered to issue. 8 No. 20, original. The STATE OF NEW JERSEY, complainant, v. Harry M. DAUGHERTY, etc., et al. Oct. 5, 1925. Resignation of Harry M. Daugherty as Attorney General, and of William C. Wallace as Secretary of Agriculture suggested; and John G. Sargent as Attorney General and Howard M. Gore as Secretary of Agriculture, ordered substituted as parties defendant, on motion of Mr. Harry R. Coulomb for the complainant. Messrs. Thos. F. McCran, of Paterson, N. J., Wm. Newcorn, of Plainfield, N. J., and Harry R. Coulomb, of Atlantic City, N. J., for the State of New Jersey. The Attorney General, for defendant. submitted on briefs. Case No. 9, original. The STATE OF NEW YORK, complainant, v. BARRETT MANUFACTURING COMPANY. Oct. 5, 1925. Messrs. F. La Guardia and Edgar Bromberger, both of New York City, for the State of New York. Mr. Clark McKercher, of New York City, for defendant. Dismissed, per stipula tion. (269 U. S. 591) 6 No. 2. RAILROAD & WAREHOUSE COMMISSION OF STATE OF MINNESOTA et al., appellants, v. DULUTH STREET RAILWAY COMPANY. Oct. 5, 1925. Appeal from the District Court of the United States for the District of Minnesota. Messrs. Clifford L. Hilton, of St. Paul, Minn., and Henry C. Flannery, of Minneapolis, Minn., for appellants. Messrs. John B. Richards, W. D. Bailey, and Oscar Mitchell, all of Duluth, Minn., for appellees. Dismissed, per stipulation. See 4 F. (2d) 543. No. 10, original. The STATE OF SOUTH (269 U. S. 591) No. 9. CHRISS LANDSBERG, petitioner, v. The SAN FRANCISCO & PORTLAND Oct. 5, 1925. On |