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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, being measured only by a fine, seems to have had no deterrent effect.

In view of these facts, the Attorney-General of the United States came to the conclusion that the only way to enforce violations of the Commerce Act and the Elkins Act was to secure indictments, under which the defendants, upon conviction, could be sent to prison. Resort was had to section 5440 of the United States Revised Statutes, which makes it a crime for two or more persons to conspire to commit any offense against the United States. Conviction under this section for conspiracy, prior to the amendment of 1897, authorized the court to impose a penalty by fine, and also imprisonment, for not more than two years. In construing this section, the Supreme Court of the United States in Clune v. United States, 159 U. S. 590, declared that if the crime which defendants conspired to commit was punishable only by fine, nevertheless, if the defendants were convicted under the conspiracy clause of the Revised Statutes, they were subject to the penalties imposed by that section, which included imprisonment for not more than two years.

It was contended, by counsel for accused, in the Clune case, that a conspiracy to commit an offense could not be punished more severely than the offense itself, and that, therefore, when the principal offense is in fact committed, the mere conspiracy is merged in it.

In answer to this contention, the court, BREWER, justice said: “The language of the section is plain, and not open to doubt. A conspiracy to commit an offense is denounced as itself a separate offense, and the punishment therefor is fixed by the statute, and we know of no lack of power in Congress to thus deal with a conspiracy. Whatever may be thought of the wisdom or propriety of a statute making a conspiracy to do an act punishable more severely than the doing of the act itself, is a matter to be considered solely by the legislative body.” The court cited in support of its opinion also Callan v. Wilson, 127 U. S. 540.

After this decision, the conspiracy section was amended in 1897, by making the punishment of imprisonment in the alternative, and fixing a maximum fine of not more than



$10,000, with no minimum specified, and giving the court discretion to impose either or both penalties.

In view of these plain provisions of the conspiracy section the Attorney-General gave instructions to district attorneys throughout the country to investigate all complaints for violations of the Elkins Act and Commerce Act, and if reasonable grounds therefor existed and sufficient evidence could be obtained, to submit such evidence to the grand jury under section 5440 of the United States Revised Statutes, charging conspiracy to commit a crime against the United States. The section of the Revised Statutes, as amen led 1897, provides as follows:

Conspiracy Against the United States.- If two or more persons conspire either to commit any offense against the United States or to defraud the United States in any or for any purpose, and one or more of such parties do any act to effect the object of the conspiracy, all the parties to such conspiracy shall be liable to a penalty of not more than ten thousand dollars or to imprisonment for not more than two years, or to both fine and imprisonment in the discretion of the court. (U. S. Rev. Stat., $ 5440.)

Indictments were found, under this section, in Kansas City, eastern district of Missouri, against Thomas and Taggart, for conspiring to commit the crime of rebating, which is an offense against the United States, forbidden by the Commerce Act and the Elkins Act, but made punishable, under those acts, only by fine.

Similar indictments were found also by the grand jury in the county of New York, southern district of New York, against certain shippers and officers of the New York Central railroad. The indictments in Kansas City were tried in June, 1906, before Hon. SMITH McPHERSON, and were sustained and the defendants were convicted. Judge McPherson followed Clune v. United States, 159 U. S. 590, above cited, and held that a conspiracy to commit an offense was a distinct crime from that sought to be committed. Congress having made it a separate offense, with a different penalty.

The New York indictments, under the conspiracy clause of the United States Revised Statutes, were demurred to by defendants. The demurrers were argued June 29, 1906, before Hon. GEORGE C. Holt, district judge, shortly after the Kansas City indictments were sustained by Judge McPHERSON. Judge Holt, after careful consideration, felt constrained to differ from the ruling made by Judge McPHERSon, sustained the demurrers and dismissed the indictments. “To claim that the agreement to give a rebate is a conspiracy punishable by imprisonment,” said Judge Holt, “ while the actual giving of it is an offense punishable only by fine seems to me too subtle a distinction to be drawn in the administration of the criminal law."

It would seem that the practical effect of Judge Holt's opinion, if sustained, would operate to nullify section 5440 of the United States Revised Statutes, because if an act is made a crime, the accused must be indicted and tried for committing it. If he conspires with another to commit it he cannot be indicted for the conspiracy, but the District Attorney must confine his indictment to the direct commission of the offense.

In this connection, it may be observed, that the imprisonment penalty, for violations of the Commerce Act and the Elkins Act, was not restored by the Act of June 29, 1906, except only as to the crime of rebating. In one sense, any violation of these laws, whether it be by means of false bills, false weights, false classification, failure to furnish cars, or move traffic, might be held to be a mere cover or device to accomplish the crime of rebating, which in its essence is the act of the carrier in charging one shipper more than another for the same service, or for substantially the same service. But in the administration of the criminal law, it is extremely doubtful if the crime of false billing, false weights, or false classification, or discrimination in car service or in the use of terminal facilities can be punished by imprisonment. All these offenses were made punishable by imprisonment under section 10 of the Commerce Act, prior to the passage of the Elkins Act, February 19, 1906. Failure to obey a writ of mandamus to furnish cars or move traffic was made, under section 6 of the Commerce Act, punishable “as and for a contempt,” which is punishable by fine and imprisonment.



These punishments were not directly restored by the Act of June 29, 1906.

§ 23. Criminal

Liability Rebates Concessions Foreign Shipments.-The Elkins Act of February 19, 1903, declares that it shall be unlawful for the carrier to receive or collect from any person a greater or less compensation than it charges or collects from any other person for a like service and makes it a criminal offense for the carrier or any person or corporation "to offer, grant, or give or to solicit, accept, or receive any rebate.” Criminal proceedings were instituted on behalf of the Government against Armour & Co., Swift & Co., The Cudahy Company, The Nelson Morris Packing Company, and others for a violation of the provisions of the Elkins Act relating to rebates. It was charged that the defendants accepted a rate of twentythree cents per 100 pounds on shipments of lard consigned to Germany by way of the Burlington railway, when the legal tariff was thirty-five cents per 100. The case was tried in June, 1906, in the United States District Court at Kansas City, Mo., before Hon. Smith McPHERSON. The jury found the defendants guilty. The contention of the defendants was that the twenty-three-cent rate was legal because the Burlington railroad raised its tariff to thirty-five cents per 100 after it had made its contracts with the defendants. After the contract had been made with defendants at the twenty-three-cent rate, which expired on the 31st day of December, 1905, the railroad company, prior to the expiration of the contract, on the 6th day of August, 1905, filed a new schedule of tariffs fixing the rate of thirty-five cents per 100 pounds. The court held that defendants knowingly, after the rate had been changed, continued to pay, and the railroad company continued to accept, the twenty-three-cent rate, while other shippers were obliged to pay thirty-five cents for the same service. The court held that this was a violation of the Elkins Act. The court charged the jury as follows:

“According to the indictment returned against the defendant, the packing company signed a contract to run until December 31,

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