New-York tribune., 1907-08-04

v.-o;+ior :, cases arising on other statutes. |
However in this in all other cases aato Of
statutory construction. 1t is soIeiy q ques qI
legislative intent. The language OF the ia~
Every person corporation VINO i- siiar INV
Grant or give or solicit, accept OF ieoei,o
80 rbo+.e concession Discrimination siiaii oo
deemed guilty of misdemeanor and on Iass 1nen
thereof shall be punished by q lllie u NV
81 600 more than S-eVV-
NITNBER OF OFFENCES
4. 49,, ,,,r+ reads this enactment, the oftence Is
connnlete whenever property Is transp H. 1,H
less than lawful rate II TINS De t o trans
is violated every time any properly S ts deb-
norted There is nothing In these "oiu ~. ;tnn
arateIv employed by Congress to ilolc go babit1-
tion 70 he that If defendant sha4l olel1 ~ -. ono
lloi % ~ ~ Ill Rave immunity only as 10 one
,,cIation Nor will the court indulge tne ad in
tion tbat this could have been the uneNples eted
. tloi tI ~ Congress to be judcially interpreted
into the law in opposition 10 WhAt "pt pta,,td an
IFS Dlain meaning, because sucIi {. - ~, one oc-
courage him who had violated the laW o 4ar TO
io 10 dtsobey it by wholesale in ordsr s. 90
thereby accumulate a large fund LOT ms tngIe pen-
after paving the fine imposed 1or 'i0 ''''e
atty. -, .,. ors+r,ction be not
adopted the number OF pena@l.ie @ e CONCESSION was
10 three on the theory that but one 1xy
orantad hv the railway company ana icctPle -
The defendant each year, the pom. ei,+ to he
six-cent rate given to the 60, ,,aars
eef.ctiye throughout each one of the three Seat'
| covered by the Indictment =. :, ,,,oi,+sined
II this theory be not accepted II Is ha-i titd 70
that the number of penalties should be hl.ea ,5 ~
tbirtv-sx that being the number oil pillS ieliN d
! bv the Alton company at the slx-ceit iatT, 81
ia nv the defendant It being urged tnat lhe Vi
fence if any. committed when the iloiieS "
| BIIt the court is unable accent any OF these
| theories The offence committed "hth lIlo
property transported at the tiyt. w. on
nd the narties could not limit their liability ny en-
| tering into an arrangement to disregard the Id"
for long period of time, nor by settne ILeIt tT.
counts at ted periods 1t IS the SUBS VI ,
| tbine and not the mere form with which the law
is concerned. The defendant here Is IN pfecistS i
the same position it would occupy II IL mao pau te
| Alton company at the unlawful rate each time
| iS
| fendant's position that the number of penalties
| he limited to the number of shipments as as
tinguished from the number OF cars Transported le
| argument being that lnas'nuch as tie go -
| shows that in many instances more thai ~ one a.
of defendants property went forward in the same
| train it must be Inferred that III SucH c@Se9 IN IN
several cars constituted one shipment. whlch the
defendant contends is the unit contemplated oy tlo
law However. the course OF dealing OF th, par
seems to forbid the application of this rule Inc
| legal rate was established Dy Ihe ldli"dS COIfd-'
| a CdrlOt basis.
| The unlawful six-cent rate was granted and ac-
| cepted on this basis. and bills were rendered ana
| paid at that rate per lot. each car being
| specifically ftemized. Moreover the mere fact that
| more than went forward in the same tram
would not require the inference that they were all
part of shipment, any more than would the
| fact that If shipment of five cars on one order
should happen be moved in five different trains
resolve that transaction into five separate ship
| ments. The proof is silent as to what number OF
| rars r. more than one constituted shipments 1n
specific orders. evidence having been offered by
either party that point. Because of this the de-
| fendants counsel urged the court to grant a new
! trial. the claim then being that such showing
| a necessary part of the governments case. III
the opinion OF the court the evidence fully justified
| the jury in finding the defendant guilty on eacB
! OF the !. l62 counts.
sUFFIC1ENCY OF INQUIRY
! Respecting the defendants claim that the repre-
! sentations by the Alton rate clerk had misled it
/ into the sincere belief that the Atoms cent
rate had been filed with the Interstate Commerce
Commission. II is proper to recall here that in the
J opening statement of its 10 the jury the de-
fendant asserted its position to be that under he
/ statute the need not be flied make lawful
its acceptance by Il shipper. Thereafter, during
the Introduction OF defendants evidence and while
the court hearing argument with reference TO
the admissibity Of testimony offered by the de-
fcndant tending 70 show that the railway rate
clerk mad represented to the defendants traffic
manager that the rate had been filed with the
commission. the court asked defendants counsel
whether the traffic was. in fact. rnised
That gentleman, being then in court Was called
into conference by defendants counsel. at the end
Of which counsel stated TO the court the traffic
manager tells me he assumed that the Alton
/ company did its legal duty in that regard
At tho conclusion OF the argument the court
. ruled that. inasmuch the law required the
rier TO keep the schedule at its freight office for
public inspection. and made 1t misdemeanor for
. the shipper accept a rate that was not thus
published by the carrier and filed with the Inter
I state Commerce Commission. II the defend
ants duty to make dilfgent eudeavor I'm good faith
ascertain carriers office whether the
had been aed: that the defendant charge
able with such knowledge this inquiry would
/ have disclosed and that therefore. evidence
adtiisSlbI" tending TO Sho" mat the defendant
/ made the inquiry ana mislcd by the railway
/ company into innocently believing that the rate
mad been hled. 1t being for the jury To determine
whether such testimony exhibited the truth of the
/ transaction Thereupon the traffic manager
I called to the stand. and testified that each
the three occasions when he received the special
billing order naming the six-cent rate he had in
quired OF tha rate clerk whether the rate had been
filed. and informed that it had been.
II because of these occurrences of
which took place in the absence of the jury, that
the directed the jury subject very care
ful scrutiny the testimony OF the traffic manager
and the rate clerk on this subject II the traffic
/ manager merely assumed the rate had been filed.
OF course he did these occasions specifically
ask whether it had been filed. \ jury re-
qured to accept obviously improbable thing a
true merely because in lawsuit a witness may
testify to its having happened
THE EASTERN ILLINOIS RATE.
In the federal court on a verdict OF guilty. IL
The defendant having offered certain tariff sChed-
ules the trial tending to show that during
the period covered by the indictment there was
available to il and the general shipping public via
the Chicago & Eastern Illinois road open, pub
lished. lawful rate of Ga cents from Whiting
East ST. Louis, which rate. represented. was
equal to the scent rate via the Alton road owing
TO certain terminal charges TO which traffic
that subject East St. Louis. and the
court being of the opinion that this fact, true.
should be considered in mitigation. although mad
missible before the jury the question guilt or
innocence the court after the verdict directed tho
& Eastern Illinois
From these il appeared that IN September, 1885,
the Eastern Illinois company, I'm connection with
the Cleveland, Cincinnati, Chicago & St Louis and
other railway companies. issued and hled with the
Interstate Commerce Commission joint tariff No
1856. This class tariff. and fixed rate of
Is cents a hundred pounds oil from Chicago to !
East st. Louis. On October 3. 1895. the Eastern /
Illinois company issued and filed with the Inter
state Commerce Commission its commodity tariff !
No S0'3. fixing a rate OF 81. cents hundred