The Birmingham age-herald., 1908-03-17
Supreme Court Upho|ds Validity
 of the EIEns law
DECISION BY. JUSTICE DAY
In Rendering the Opinion Justice Day Says Future Contracts of the
 Railroad Will Be lmpossi-
 ble Along Certain Lines.

Washington, March 16.-By division of five to three, the supreme court of the United States today affirmed the decision of the United States circuit court of appeals for the Eighth circuit, imposing fines on the Chicago, Bur lington and Quincy Railway company for granting, and the packers of Kan sas City, Kan. for accepting rebates on shipments of packer products in tended for export The decision was announced by Justice Day and his am nouncement was concurred in by Justices Harlan, White, McKenna and Holmes The lief justice and Justices Brewer and Peckham dissented in an opinion announced by Justice Brewer, which pungently criticized the controll- ing opinion. Justice Moody took no part in the disposition of the case.
 The validity of the Elkins law was attacked by the defense and it also was contended that no real offense had been committed; but the principal de- fense was the contention that in view of the fact that the shipments had or iginated in Kansas, the Missouri court was witho jurisdiction. The court of appeals also was called upon to pas 5 on this point, and it held that the re- ceiving of a rebate is "a continuous crime, judiciable in any court of the United States having Jurisdiction of crimes through whose district the transportation is conducted.
 AS the goods were carried through Missouri the circuit court and the court of appeals concluded that the cir cult court was competent to try the cases, and the supreme court upheld this view.
 Justice Days Opinion.
 In his opinion Justice Day discussed the various points of controversy in volved in the case. Taking up the first question as to what constitutes a crime in the manner of granting re- bates he said:
 Had it been the intention of Con- gress to limit the obtaining of such preferences to fraudulent schemes or devices, or to those operating only by dishonest, underhanded methods, 1t would have been easy to have so provided in words that would be un- mistakable in their meaning. de- vice need not be necessarily fraudu- lent; the term includes anything whica Is a plan or contrivance."
 Discussing the effect of the ruling
 of hn onn n- tracts Justice Day said;
 "There is no provision for the filing of contracts with shippers and no method of making them public In the defined statute. If the rates are sub feet to secret alteration by special agreement. then the statute will fail of it's purpose to establish rate duly pub,ished known to all, and froiii which neither shipper nor carrier may depart.
 Ut is said that if the carrier saw ht to change the published rate by con tract, the effect will be to make the rate available to all other shippers. But the law is not limited to giving equal rates hy indirect and uncertain methods. It has provided for the establishment or one rate to be filed as provided, subject to change as provided, and that rate to be while in force. the only legal rate Any other construction of the statute cpens the door to the possibility or the very abuses of unequal rates which It wal the design of the statute to prohibit, ana punish.
 C,ntracts lnterfercd With.
 .It may be. as urged by petitioners, that this construction renders impossible inc making of contracts for the future delivery of such merchandise as the pe- titioner deals in and that the instability of the rate introduces factor or uhcer- tainty, destructive of contract risnts' heretofore enjoyed in such property. But such considerations address themseiVes 'o Congress, not to the courts It IS the rroyince of the judiciary to enforce laws constitutlonally enacted. not to make ttar,, to suit their own views of propriety or justice
 s"rhe statute being within the constitu- tIonal power of Congress and being In force when the contract was made, IS re- Iating to the contracts, and becomes par. cf 1t. If the shipper sees ft to make contract covering certain period TOT rate in force at the time, he must be taken to have done so subject to the pos sible change of the published rate in the manner fixed by statute, to which he must conform or suffer the penalty fixed by law"
 In the course of his opinion, Justice Day gave the following general defini- ten of the intent of the Elkins act
 "The EllSins act was based upon broad lines, and was evidently intended to eff fectuate the purpose of Congress to re- ouire that all shippers should be treated flike. and that the only rate charged to any shipper for the same service unde- the same conditions should be the one established, published and posted as re- ouired by law. It is not so much the particular form by which or the motive for which this purpose was accomplished but the intention was to prohibit any and ell means that might be resorted to to obtain or receive concession and rebates from the fixed rates. duly posted and published