New-York tribune., 1908-03-17
REBATE FINES STAND.
COURT DIVIDED 5 TO 3.
Con7iction of Packers and Burllng-
ton Railroad Upheld.

Washington March 16-By division of 3 to 3
the Supreme Court Of the United States to-day
affirmed the decision of the United States circuit
Court of Appeals for the Eighth Circuit, imposing
fines on the Chicago, Burlington & Quincy Rail
way Company for granting, and the packers OF
Kansas City. Kan, for accepting, rebates on snip
ments of packers products intended for export.
The decision was announced by Justice Day ana
was concurred in by Justices Harlan. White Nc
Kenna and Holmes. The Chief Justice and Justices
Brewer and Peckham dissented in opinion by
Justice Brewer which pungently criticised the
controlling opinion Justice Moody took no part
the disposition of the case. In his opinion Jus
tice Brewer said:
Il has been one of the boasts of Jurisprudence
that it uphods the sacredness OF contracts' 6S
constitutional provision state is estopped from
tract. and again and again has TINS court @ n
down legislation having such effect Nhle tnere -
Congress has in this broken no contract. IT
has simply. as held by the court given persSiqn ns
rep,,di,te its cortract Obviously. from the
tone of the opinion of the court the done to
the shipper is recognized and the argument is only
that the responsibility for the wrong rests upon
Congress. In other words, the court has unloaded
upon Congress the injustice which the constructlon
placed by It qpon the gta{Gte M G force the
tract. and thus secuTe Justice In TINS case ieais
to Congress the enactment OF addlf9naI
ties OF secret arrangements between carrier ana
shipper
Justice Day discussed the various points of con-
troversy involved in the case. Taking up first the
question as to what constitutes crime In the
matter Of granting rebates. he said:
Had it been the intention of Congress to limit
tn 0otanlns 2I sucn basa oneratn onlv by
dishonest. underhanded methods, it would have
be unmistakab!e in their meaning A device need
be necessarily fraudulent; the term includes
anything which is a plan or contrlVance'
On the point of Jurisdiction he said:
Having in view the offence charged in this case
think it is clearly within the terms of me act
any Of the means denounced in the act of goods
less rate than that named in the tariffs 1t
or receive transportation, in the sense of actual
carriage at a concession from the published ties
the offence is to be deemed as having been com
of the statute. the transportation being of the
essence of the offence when it takes place whether
ming. at the end or in the middle of the Journey
* IS equally and at all times committed
Justice Day gave the following general definition
of the intent of the Elkins act:
The Elllins act proceeded upon broad lines and
Congress to require that all shippers should pe @
any. shipper for the same service under the same
and posted as required by law. It is not much
the particular form by which or the motive for
if he N @ to to obtain or receive
sions and rebates from the fixed rates duly posted
and published.
Kansas CITY Mo March 16-The Armour Packing
Company Swift & Co. Morris & Co. and the
Cudahy Packing Company were convicted in the
United States District Court of receiving conces-
sions export shipments of packing house
products. and fined by Judge Smith Mcpherson
here on June %. 1906 At the time the Chi
cago. Burlington Quincy Railroad fined
$4,000 for granting concessions, and George L.
Thomas Of New York a freight broker, and l. B.
Taggart, his clerk. fined and sentenced to jail
for conspring to receive concessions from railroads
Recently Thomas and Taggart threw themselves
upon the mercy of the court, and Judge McPher-
withdrew the jail sentence. the defendants
paying their fines and being released