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is, therefore, entitled to receive that interpretation which reasonably accomplishes the great public purpose which it was enacted to subserve. That a carrier engaged in interstate commerce becomes subject as to such commerce to the commands of the statute, and may not set its provisions at naught whatever otherwise may be its power when carrying on commerce not interstate in character, cannot in reason be denied. Now, in view of the positive command of the second section of the act, that no departure from the published rate shall be made, 'directly or indirectly,' how can it in reason be held that a carrier may take itself from out the statute in every case by simply electing to be a dealer and transport a commodity in that character? For, of course, if a carrier has a right to disregard the published rates by resorting to a particular form of dealing, it must follow that there is no obligation on the part of a carrier to adhere to the rates, because doing so is merely voluntary. The all-embracing prohibition against either directly or indirectly charging less than the published rates shows that the purpose of the statute was to make the prohibition applicable to every method of dealing by a carrier by which the forbidden result could be brought about. If the public purpose which the statute was intended to accomplish be borne in mind, its meaning becomes, if possible, clearer. What was that purpose? It was to compel the carrier as a public agent to give equal treatment to all. Now, if by the mere fact of purchasing and selling merchandise to be transported a carrier is endowed with the power of disregarding the published rate, it becomes apparent that the carrier possesses the right to treat the owners of like commodities by entirely different rules. That is to say, the existence of such a power in its essence would enable a carrier, if it chose to do so, to select the favored persons from whom he would buy and the favored persons to whom he would sell, thus giving such persons an advantage over every other, and leading to a monopolization in the hands of such persons of all the products as to which the carrier chose to deal. Indeed, the inevitable result of the possession of such a right by a carrier would be to enable it, if it chose to exercise the power,

to concentrate in its own hands the products which were held for shipment along its line, and to make it, therefore, the sole purchaser thereof and the sole seller at the place where the products were to be marketed; in other words, to create an absolute monopoly." (New Haven R. R. Co. v. Interstate Com. Co., 200 U. S. 361; Interstate Com. Co. v. Chesapeake & Ohio R. R. Co., 200 U. S. 361.)

The cases cited arose in a suit instituted in the United States Circuit Court of the district of West Virginia, by the Interstate Commerce Commission, to enjoin the carrying out of a contract under which the Chesapeake & Ohio Railway Company, a Virginia corporation, agreed to deliver at New Haven 60,000 tons of New River coal for the New York, New Haven & Hartford Railroad Company, a Connecticut corporation, at $2.75 per ton. The price of coal at the mines, plus the cost of transportation from Newport News to New Haven, was $2.47 per ton, while the published rate from the mine to Newport News was $1.45 per ton, and the bill was based on the claim that this was in effect a discrimination, in that the company carried the coal for less than the published rates. In 1895 the State of West Virginia passed an act entitled “an act to prevent railroad companies from buying or selling coal or coke, and to prevent discrimination." To evade this statute, the place of delivery under the contract was to be at New Haven, Conn.

The company denied this, and alleged that it had sustained a loss on the price of the coal, and that it took this means to reimburse the New Haven road for some $100,000 which it had lost through the inability to fill a previous contract owing to a strike of miners.

The Circuit Court held that there was no violation of the rebate provision of the Interstate Commerce Act, but held that the contract between the two roads was illegal, contrary to public policy, and void, and enjoined its enforcement. The two roads and the commission appealed.

The Supreme Court discussed the contract in question and also a previous contract, which was for 2,000,000 tons, with deliveries guaranteed by J. Pierpont Morgan. The various phases of both contracts are considered at length,

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and the conclusion reached that they were void as against public policy, and also in violation of the Interstate Commerce Act, because the margin for freight rates was lower than the published rates.

The court modified the injunction granted by the Circuit Court by enlarging its provisions. In this regard Mr. Justice WHITE said: "As the court below did not decide that the second and third sections of the act relating to the maintenance of rates had been violated, the injunction issued by it was not made as directly responsive to the commands of the statute on that subject as we think it should have been. We, therefore, conclude that the injunction below should be modified and enlarged by perpetually enjoining the Chesapeake and Ohio from taking less than the rates fixed in its public tariff or freight rates by means of dealing in the purchase and sale of coal." As thus modified the decree below was affirmed. (New Haven R. R. Co. v. Interstate Com. Co., 200 U. S. 361; Interstate Com. Co. v. Chesapeake & Ohio R. R. Co., 200 U. S. 361.)

In declaring that the contract of the carrier, made by it as a dealer was contrary to public policy and void, the court said: "It is said that when a carrier sells an article which it has purchased and transports that article for delivery, it is both a dealer and a carrier. When, therefore, the price received for the commodity is adequate to pay the published freight rate and something over, the command of the statute as to adherence to the published rates is complied with, because the price will be imputed to the freight rate, and the loss, if any, attributed to the company in its capacity as dealer and not as a carrier. This simply asserts the proposition which we have disposed of, that a carrier possesses the power by the form in which he deals, to render the prohibitions of the act ineffective, since it implies the right of a carrier to shut off inquiry as to the real result of a particular transaction on the published rates, and thereby to obtain the power of disregarding the prohibitions of the statute.

"It is said, that as in the case in hand, it is shown that there was no intention on the part of the carrier in making

the sale of the coal to violate the prohibitions of the statute, and, on the contrary, as the proof shows, an arrangement was made by the carrier for transporting the coal from Newport News to Connecticut, which, if it had been carried out, would have provided for the full published rate; therefore, an honest contract made by the carrier should not be stricken down because of things over which the carrier had no control. "The proposition involves both an unfounded assumption of fact and an unwarranted implication of law. It is true the court below found that the proof did not justify the inference that the Chesapeake and Ohio had, in 1896, made the contract to sell the coal to the New Haven with the purpose of avoiding a compliance with the published rates. But in this conclusion of fact we cannot agree. While it may be that the proof establishes that the contract for the sale of coal was not made as a mere device for avoiding the operation of the statute, we think the proof leaves no doubt that, in making the contract in question, the Chesapeake and Ohio was wholly indifferent to and did not concern itself with the prohibition of the statute, of which, of course, it must be assumed to have had full knowledge." (New Haven R. R. Co. v. Interstate Commerce Commission, 200 U. S. 361; Interstate Commerce Commission v. Chesapeake & Ohio R. R. Co., 200 U. S. 361.)

§ 21. Carrier Cannot be a Dealer - Legislation of 1906 as to. The wholesome doctrine that it is contrary to public policy to permit a carrier to deal in the commodities which it transports; that it cannot occupy the dual capacity of dealer or shipper, and carrier, was declared by the Supreme Court of the United States in February, 1906, in what is known as the Chesapeake and Ohio case, supra. The notable opinion of the court, written by Mr. Justice WHITE and concurred in by all of his associates, is a forcible and convincing argument showing the wisdom of the rule. On June 29, 1906, Congress enacted this rule of public policy into a law, and it now forms part of section 1 of the Commerce Act. "From and after May first, 1908," the statute declares, it shall be unlawful for any railroad company to transport among the

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States and Territories, or to any foreign country "any article or commodity, other than timber or the manufactured products thereof, manufactured, mined, or produced by it, or under its authority, or which it may own in whole or in part, or in which it may have any interest, direct or indirect, except such articles or commodities as may be necessary and intended for its use in the conduct of its business as a common carrier.”

The value of this statutory prohibition is apparent, when we consider that it would be impossible for a carrier to discharge its duty, as such, to all shippers, affording to each equality of opportunity, and placing all upon an equal plane, when the carrier also becomes a shipper. It is obvious that a carrier, which is also a shipper, becomes a rival and competitor of every shipper to whom it owes a public duty to carry. As a carrier, it cannot serve itself, and also mete out impartial and exact justice to other shippers, and faithfully discharge its obligations in that regard.

V. IMPRISONMENT CRIMES AND CONSPIRACIES. § 22. Imprisonment - Conspiracy Against the United States. Under section 10 of the Commerce Act, as originally passed, the sentence imposed for its violation, included "imprisonment in the penitentiary for a term not exceeding two years" or a fine not exceeding $5,000, or both, in the discretion of the court. On the 19th of February, 1903, the Elkins Act was passed, which contained a provision abolishing the penalty of imprisonment contained. in section 10 of the Commerce Act, and substituted a fine, not less than $1,000 nor more than $20,000. The result of this legislation, as shown by the evidence secured by the Bureau of Corporations in the Department of Commerce and Labor, and by the Commissioner of Corporations under the act approved February 14, 1903, as reported from time to time to the Department of Justice, showed that the evils resulting from rebating and preferences and discriminations against shippers and localities, which it was sought to remedy by the Commerce Act and the Elkins Act, continued to be practiced with impunity. The punishment imposed,