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§ 461. Corporations Violating the Interstate Commerce Act Guilty as Individuals and Punishment Prescribed. That anything done or omitted to be done by a corporation common carrier, subject to the Act to regulate commerce and the Acts amendatory thereof, which, if done or omitted to be done by any director or officer thereof, or any receiver, trustee, lessee, agent, or person acting for or employed by such corporation, would constitute a misdemeanor under said Acts or under this Act, shall also be held to be a misdemeanor committed by such corporation, and upon conviction thereof it shall be subject to like penalties as are prescribed in said Acts or by this Act with reference to such persons, except as such penalties are herein changed. The wilful failure upon the part of any carrier subject to said Acts to file and publish the tariffs of rates and charges as required by said Acts, or strictly to observe such tariffs until changed according to law, shall be a misdemeanor, and upon conviction thereof the corporation offending shall be subject to a fine of not less than one thousand dollars nor more than twenty thousand dollars for each offense.

First part of Section 1, Act February 19, 1903, known as the "Elkins Act."

This and Sections 462, 463, 464 and 465, while not parts of Section 6, logically follow at this point.

Prior to this Act only the agents of the corporations could be guilty of criminal offenses against the Act to Regulate Commerce.-United States v. Milwaukee Refrigerator Transit Co., 142 Fed. 247, 249. A carrier and its agents may be prosecuted under the same indictment.-United States v. New York C. & H. R. R. Co., 146 Fed. 298; affirmed by the Supreme Court, holding that the Act was not unconstitutional in imputing to a corporation a criminal offense, New York C. & H. R. R. Co. v. United States, 212 U. S. 481, 53 L. Ed. 613, 29 Sup. Ct. 304.

Notes of Decisions Rendered Since 1909.

Failure to observe the tariff rate by carrying at a less or different rate than stated therein is punishable.-Hocking Valley Ry. Co. v. U. S., 210 Fed. 735, 127 C. C. A. 285, affirming U. S. v. Hocking Valley Ry. Co., 194 Fed. 234. The violation

of the tariff in this case was the extension of credit to shippers for freight due.

Granting,

§ 462. Rebate Punishment for Offering, Soliciting or Accepting. And it shall be unlawful for any person, persons, or corporation to offer, grant, or give, or to solicit, accept or receive any rebate, concession, or discrimination in respect [to] the transportation of any property in interstate or foreign commerce by any common carrier subject to said Act to regulate commerce and the Acts amendatory [thereof] 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 the Acts amendatory [thereof], or whereby any other advantage is given or discrimination is practiced. Every person or corporation [whether carrier or shipper] who shall, [knowingly], offer, grant, or give, or solicit, accept, or receive any such rebates, concessions or discrimination shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by a fine of not less than one thousand dollars nor more than twenty thousand dollars: [Provided, That any person, or any officer or director of any corporation subject to the provisions of this Act, or the Act to regulate commerce and the Acts amendatory thereof, or any receiver, trustee, lessee, agent, or person acting for or employed by any such corporation, who shall be convicted as aforesaid, shall, in addition to the fine herein provided for, be liable to imprisonment in the penitentiary for a term of not exceeding two years, or both such fine and imprisonment, in the discretion of the court]. Every violation of this section shall be prosecuted in any court of the United States having jurisdiction of crimes within the district in which such violation was committed, or through which the transportation may have been conducted; and whenever the offense is begun in one jurisdiction and completed in another it may be dealt with, inquired of, tried, determined, and punished in either jurisdiction in the same manner as if the offense had been actually and wholly committed therein.

Second part of Section 1 of Act February 19, 1903, substantially as enacted, the Amendments of June 29, 1906, be

ing inclosed in brackets. The part of the original Act stricken by the amended Act was as follows:

"In all convictions occurring after the passage of this Act for offenses under said Acts to regulate commerce, whether committed before or after the passage of this Act, or for offenses under this section, no penalty shall be imposed on the convicted party other than the fine prescribed by law, imprisonment wherever now prescribed as part of the penalty being hereby abolished."

Before the passage of the Elkins law it was held that as the question of whether or not the facts and circumstances constituted unjust or illegal discrimination must be left to a jury there could be no certainty as to whether or not a particular Act was criminal, and, therefore, there could be no criminal punishment for violating Section 3 of the Act.Tozer v. United States, 52 Fed. 917. But a conviction against an agent of a carrier could be had under Section 10 for transporting for less than the published rate.-United States v. Mich. Cent. R. Co., 43 Fed. 26. No conviction for receiving a rebate from a joint rate not filed and published.-United States v. Wood, 145 Ala. 405. A consignee may be guilty as well as a consignor; the Hepburn Act did not affect offenses committed prior to its passage.-United States v. Standard Oil Co., 148 Fed. 719, 155 Fed. 305; reversed on other grounds, Standard Oil Co. v. United States, 164 Fed. 376, 90 C. C. A. 364. Offenses not affected by Section 10 of the Hepburn Act. -United States v. Chicago, St. P., M. & O. Ry. Co., 151 Fed. 84; United States v. New York C. & H. R. R. Co., 153 Fed. 630. Offenses hereunder may be prosecuted by information. -United States v. Camden Iron Works, 150 Fed. 214; reversed, 158 Fed. 561, 85 C. C. A. 585, because the initial carrier which paid the rebate had filed no through schedule of rates with the Commission. A shipment from one point to another in New York state but passing through another state is interstate commerce and subject to this law; also holding that Section 10 of Hepburn law did not affect prosecution for offenses committed prior thereto.-United States v. Delaware, L. & W. R. Co., 152 Fed. 269. Death before the fine is paid abates the judgment.-United States v. Pomeroy, 152 Fed. 279; reversed, because the Circuit Court had no power to act,

an appeal having been taken.-United States v. New York C. & H. R. R. Co., 164 Fed. 324, 90 C. C. A. 256. Act constitutional; crime may be punished in any district through which the transportation is conducted; contract to maintain established rates ineffective after a higher rate has been filed and published.-Armour Packing Co. v. United States, 153 Fed. 1, 82 C. C. A. 135, 14 L. R. A. (N. S.) 400; affirmed, 209 U. S. 56, 52 L. Ed. 681, 28 Sup. Ct. 428. (See note to law edition.) Section not restricted to departures from tariff rates, but Act applies to all illegal discriminations.-United States v. Vacuum Oil Co., 153 Fed. 598. Defective indictments for discrimination.-United States v. B. & O. R. Co., 153 Fed. 997. The extent stated to which Section 1 of Elkins Act was repealed by Hepburn Act.-Great Northern Ry. Co. v. United States, 155 Fed. 945; affirmed, holding that the right to prosecute for an offense committed prior to the Hepburn law was not taken away by that law.-Great N. R. Co. v. United States, 208 U. S. 452, 52 L. Ed. 567, 28 Sup. Ct. 313. Same effect and holding Act not unconstitutional.-United States v. Great N. R. Co., 157 Fed. 288. Where tariff filed by another no crime.-United States v. New York C. & H. R. R. Co., 157 Fed. 293. Act not unconstitutional and applies to a carrier wholly within a state when it joins in the published through rate.-United States v. Vacuum Oil Co., 158 Fed. 536. Act applies to express companies; the failure to use the word "unjust" before "discrimination" in new Act does not broaden effect of Act as amended.-United States v. Wells Fargo Ex. Co., 161 Fed. 606. Applies to refunding elevator charges when no provision in tariff therefor.Chicago, St. P., M. & O. Ry. Co. v. United States, 162 Fed. 835. No defense that rebate granted in compromise of claims for loss of property in transit.-United States v. A. T. & S. F. Ry. Co., 163 Fed. 111. Each shipment upon which a rebate is actually paid, regardless of its size, is a separate offense; no crime unless and until payment is made.-Standard Oil Co. of Indiana v. United States, 164 Fed. 376, 90 C. C. A. 364. Each rebate payment, regardless of number of shipments, constitutes a separate offense; not decided whether or not each separate agreement to pay a rebate would constitute an offense. -United States v. Stearns Salt & Lumber Co., 165 Fed. 735. Each payment, although covering more than one shipment,

constitutes one and only one offense.-United States v. Bunch, 165 Fed. 736. Prosecution for failure to file schedules must be at Washington, D. C.; "Rates in force" defined.-New York C. & H. R. R. Co. v. United States, 166 Fed. 267, 92 C. C. A. 331, reversing 153 Fed. 630. The device by which a rebate is granted is illegal even though not secret or fraudulent; violations may be tried in any district through which the transportation is had.-Armour Packing Co. v. United States, 209 U. S. 56, 52 L. Ed. 681, 28 Sup. Ct. 428; Chicago, B. & Q. R. Co. v. United States, 209 U. S. 90, 52 L. Ed. 698, 28 Sup. Ct. 439. Where full rate is paid and rebate granted at intervals, upon claims being filed therefor, each rebate payment constitutes a separate offense.-New York C. & H. R. R. Co. v. United States, 212 U. S. 481, 498, 53 L. Ed. 613, 29 Sup. Ct. 304; same-styled case, 212 U. S. 500, 53 L. Ed. 624, 29 Sup. Ct. 304. A party to a joint rate, though not filed and published by it, may be guilty.-United States v. New York C. & H. R. R. Co., 212 U. S. 509, 53 L. Ed. 629, 29 Sup. Ct. 313. Where the shipper pays the legal rate and at intervals receives a rebate, each payment thereof is a separate offense. -New York C. & H. R. R. Co. v. United States, 212 U. S. 481, 53 L. Ed. 613, 29 Sup. Ct. 304.

Rate collected under contract made before tariff filed and different from tariff rate illegal.-Armour Packing Co. v. United States, 209 U. S. 56, 52 L. Ed. 681, 28 Sup. Ct. 428.

Notes of Decisions Rendered Since 1909.

"Rebate" defined.-Am. Sugar Refining Co. v. Delaware, L. & W. R. Co., 207 Fed. 733, 125 C. C. A. 251, reversing same-styled case, 200 Fed. 652. Extending credit to shippers illegal.-Hocking Valley Ry. Co. v. U. S., 210 Fed. 735, affirming, U. S. v. Hocking Valley Ry. Co., 194 Fed. 234; Sunday Creek Co. v. U. S., 210 Fed. 747, affirming U. S. v. Sunday Creek Co., 194 Fed. 752. Whether a particular payment is legal must be determined as of the date of the service. -Elwood Grain Co. v. St. Joseph & G. I. Ry. Co., 202 Fed. 845, 121 C. C. A. 153. Violation of transit rules and form of indictment discussed.-Grand Rapids & I. Ry. Co. v. U. S., 212 Fed. 577. Contract for expedited service not provided for in tariff illegal.-Chicago & A. R. Co. v. Kirby, 225 U. S.

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