Los Angeles herald., 1907-08-04

defendants innocence or guilt in ac-
cepting the unlawful rate. the court
announcing that If 1t should subse-
quently appear that there was In force
such open published rate via the Chi
cago & Eastern Illinois available to
the public that fact would be consid-
cred by the court in mitigation of the
punishment. Motives not material In
case where the proof is clear that 1t
was the defendant who committed the
crime, the motive may be inquired
into when necessary to determine the
ultimate fact when in dispute as to
who committed the crime. (Schmidt
VS.. u. s. 1873 Fed. 269.)
The real question here is whether
the defendant accepted the concession
knowingly. In determining this 1t
need not be affirmatively shown that
the defendant had actual knowledge
of the lawful rate. The defendant
must be presumed to have known that
diligent endeavor made by an honest
man in good faith to ascertain the
lawful rate would have disclosed 1t
to him.
The burden of this diligent endeavor
is not to be diminished or increased
by the supposed existence or absence
of a lawful rate on some other road.
To adopt the defendants contention
would be to impose upon the OCCASION
al shipper who cannot employ traf-
flc manager a more rigid requirement
than that imposed upon the conlnu-
Gus shipper, by excusing the latter
owing to what his large business
might enable him to know of other
rates from which penalties would be
imposed upon the former for the same
act.
Moreover. il is to be observed that
what a shipper might not know re-
specting rates in force on one road
would not inform him of what rates
were lawfully in force on another
road.
The rate once established and avail
able to him on application he must
pay. The court is not impressed by
the doleful predictions of counsel for
the defendant as to the hardshipS
upon the honest shipping public to be
anticipated from the enforcement of
this rule. The honest man to tender
q commodity for transportation by a
railway company will not be fraudu-
lently misled by that company in
allowing it to haul his property for
less than the law authorizes it to col
lect.
Incriminates Itself
For a carrier thus to deceive the
shipper would deliberately incriminate
itself, to its own pecuniary detriment,
which it may safely be trusted not to
do. The only man liable to get into
trouble is he who, being in control of
the routing of large volumes of traf-
fic, conceives a scheme for the eva
sion of the law and connives with
railroad officials for its execution.
The defendant argues that the Ell
kins law authorizes the prosecution
for but one offense and maintains that
there can be conviction for one count
only, certain decisions of the court
supporting the proposition in cases
arising on other statutes. However,
in this, as in all other cases involv-
ing statutory construction, it is solely
a question of legislative intent. The
language of the law is:
Every person or corporation who
shall offer, grant or give or solicit,
accept or receive any such rebates,
concession or discrimination, shall be
deemed guilty of a misdemeanor, and
on conviction thereof shall be pun
ished by a fine of not less than $1,000
or more than $40 0000."
AS the court reads the enactment,
the offense is complete whenever any
property is transported at less than
the lawful rate If this be true the
law is violated every time property is
transported. There is nothing in these
words, deliberately employed by con-
gress, to indicate its intention to be
that If defendant shall offend habit
ualIy he shall have immunity save
only as to one violation. Nor will the
court indulge the supposition that this
could have been the expressed inten-
tion of congress, to be judicially in
terpreted into the law, in opposition
to what appears to be its plain mean
ing, because such a rule would en-
courage him who had violated the law
on one occasion to disobey it by
wholesale in order to thereby accumu-
late a large fund for his own purpose
after paying the fine imposed for the
single penalty.
It is also urged that If this con-
struction be not adopted the number
of penalties should be limited to three,
upon the theory that but one conces-
sion was granted by the railway COM
pany and accepted by the defendant
each year; the point being that the
6-cent rate was given to the defend
ant to be effective throughout each
one of the three years covered by
the Indictment. If this theory be not
accepted, it is maintained that the
number of penalties should be limited
to thirty-six, that being the number
of bills rendered by the Alton COM
pany at the Scent rate and paid by
the defendant, it being argued that
the offense, If any, was committed
when the money was paid.
Theories Not Good
But the court is unable to accept
any of these theories. The offense
was committed when the property was
transported at the unlawful rate, and
the parties could not limit their liza
bilities by entering into arrangement
to disregard the law for a long period
of time, nor by settling their accounts
at stated periods.
1t is the substance of the thing, and
not the mere form with which the law
is concerned. The defendant here is
precisely in the same position it would
occupy If it had paid the Alton COM
pany at the unlawful rate each time
a car was shipped
If none of these theories obtain, it
is the defendants position that the
number of penalties should be limited
to the number of shipments, as dis
tinguished from the number of cars
transported, the argument being that
inasmuch as the evidence shows that
in many instances more than one car
of defendants property went forward
in the same train, it must be inferred
~, eYIoh nasaS fha SaUaral Cara