The semi-weekly messenger. [volume] (Wilmington, N.C.) 1897-1908, 1908-03-20
RAILROAD
Railroad and Packing CoAnraAny
Fined and Appealed|Court AIod
5 to 3Tudge bay Dfscusse- Ar
ious Points OF Controversy h.~is-
ed in the Cases

WASHINGTON, March l6.-By a dlu-
sion Of D Il ) the supreme coo' q
the United States Affirmed the @cSA-
ion of the United STATES circuit ,pur,
of appeals for the Eighth circuit IN
posing fnes on the Chicago, hIr-
,iuriop anu Quincy Railway JED
aany for granting and the packers on
Kansac City, Kan, for accepting re-
bates on shipments OF packers pro
ducts intended for export The oe-
cision was announced b! Justic Day
and his announcement was concur
red In by Justices Hartman, WhiSs,-
McKenna INC Holmes. The cnie8
Justice and Justices Brewer ana
Peckham dissented in an opinion n
nounced by Justice Brewer, which
pungently criticised the controlling
opinion. Justice Moody took no rart
in the disposition OF the case.
In his opinion Justice Day diseua-
sed the various points OF clntro-
| versy involved in the cases. TAXING
up the first as to what constitutes n
crime in the matter OF granting re
bates he said:
Had II been the intention or con-
gr,.s % limit h obtaining of rucn
preferences to fraudulent schemes OK
Hevices or to those operating only ny
dishonest, undetermined methods Il
would have been easy to have pre-
viGed in words that would be ua-
m~istakable in their meaning. A de-
vice need moi be necessarily fraudu-
lent; the term includes anything
which is a plan or c~ontrivanee."
Discussing the effect Of the ruling
on the usual construction OF contracts
Justice Day said:
There is no provision FOR the FL
ing OF contracts with shippers and
no method of making them public
defined In the statute IL the rates are
subject TO secret alienation bT spoc-
ial agreement, then statute Will fail
of its purpose TO establish a rate
duly published, known TO all, and
from which neither shipper nor ear
rier may depart.
1t is said that II the carrier saw
fit to change the published rate By
contract the effect will be TO make
the rate available to all other ship
" s. But the law is not limited to
ing equal rates by indirect and
l - certain methods. Ii has provided
Ior the establishment Of one ratio
10 be filed as provided, subject TO
change as provided, and that rate TO
ie while in force the only legal
rate. Another construction OF the sta
tute opens the door TO the possibl-
lity of the very abuses OF unequal
rates which IL was the design of the
statute to prohibit and punish.
TT may be as urged by petitioner
that this construction renders impos-
sible the making OF contracts for the
future delivery OF such merchandise
rs the petitioner deals In, and hat
the instability of the rate intro
duces a factor Of uncertainty, des-
tructive Of contract rights her etofora
enjoyed in such property. But such
considerations address themselves to
congress, not TO the courts. IL IL tho
province Of the judiciary to enforce
laws constitutionally enacted, not to
make them to suit their own views
OF propriety or justice.
The statute being within tho con
s~titutional power Of congress and be-
ing In force when the contract wan
made, Is read into the contract and
becomes a part o fit II the shipper
sees fit 10 make a contract covering
a definite period for a rate In force
at the time he must be taken To
have done so subject to the possible
change Of the published rate in the
manner fixed by statute, 10 which he.
must conform or suffer the penalty
fixed by law"