210 F. 735 | 6th Cir. | 1914
The railway company was indicted for giving special concessions to the • Sunday Creek Company, one of its coal shippers, in violation of the Interstate Commerce Act and the Elkins Act. After demurrers to all the counts had been overruled, and after certain counts of the indictment had been dismissed, there remained ten, and to each of these counts the defendant, by leave of the court, pleaded nolo contendere. The defendant was thereupon by th court found guilty upon each, of these counts, a motion in arrest of judgment was overruled, and the defendant was fined $42,000.
The railway company assigns as error that the indictment was fatally insufficient, so that there was nothing to support the judgment.
.The ten counts are divisible into three groups. Counts 4, 5, and 6 undertook, particularly, to allege the acceptance of a “less or different compensation” and the extension of a “privilege in regard to transportation” not specified in the tariffs on file. They cover, respectively, the shipments for the months of March, April, and May, 1909. The second group — counts 17, 18, 19, and 20 — cover the respective shipments for the months of August, September, October, November, 1909, and allege discrimination during these months in favor of the Sunday Creek Company and against other coal shippers in like situation. The third group does not require separate consideration, because the counts of this group only allege individual instances of discrimination included within the monthly totals covered by the counts of the second group.
The sixth count will serve to illustrate the first group. It alleges that during May, 1909, the railway company received from the Sunday Creek Company and shipped 11 cars of coal destined to points on other roads and beyond the state line; that these were all'treated as “prepaid freight,” the total charges to destination being payable by the Sunday Creek Company to the railway company; that the total of freight charges to destination for such shipments, at tariff rates, was about-$600; that during the same period, and for prepaid freights on cars of coal destined to points within the state, the Sunday Creek Company incurred an obligation of' $24,600; that at the regular monthly accounting and settlement between the railway and the shipper, had on June 28, 1909, for the May shipments, the total indebtedness of $25,200 was settled by paying the odd $200 in cash and by giving the Sunday Creek Company’s note at four months with 5 per cent, interest for $25,000; that the railway company neither made any demand for, nor collected in cash, this $25,000, but that the note therefor was given and received in accordance with an arrangement antedating the shipments; that the note was not paid but was renewed from time to time, interest being paid until April 1, 1910, when it was merged into three-year debenture bonds.
Count 17, which may be taken as typical of the second group, alleged facts similar to count 4, and, further, that other shippers, in all respects similarly situated, were required, at the time of the shipments, to give bond that the freights would be paid, and were also required to make payment in cash promptly after the monthly settlement.
“The first impression one gets from the statement of facts is that the Sunday Creels Company was substantially favored by the device in question, that it was given, by the defendant, a decided advantage over its fellows in business at Nelsonville; and further study of the situation tends in no wise to weaken that early feeling. ‘Discrimination,’ in ordinary understanding and definition, is the act of treating differently; it is the antithesis of advantage; one who enjoys an advantage over another at the hands of one with whom they have common dealing has his fellow within a corresponding discrimination; the positive measures the extent of the negative. * * * If extending credit for freight charges to one shipper while exacting cash payments from his competitor in the same and contemporaneous enterprises is not extending an advantage to such shipper which involves a correlative discrimination in respect to transportation against those not so favored, the court is wholly in error. * * * As we have before suggested, the impression comes quickly and abides tenaciously that such treatment is a decided advantage to the one so favored, that advantage which is as measurable and substantial as the inevitable discrimination which it creates against those who are compelled to compete in business on the basis of such partiality.”
“The purpose of Congress was to cut up by the roots every form of discrimination, favoritism, and inequality.” L. & N. R. Co. v. Mottley, 219 U. S. 467, 478, 31 Sup. Ct. 265, 269 (55 L. Ed. 297, 34 L. R. A. [N. S.] 671).
“Tbe legislative department intended that all who obtain transportation on interstate lines shall be treated alike in the matter of rates, and that all who avail themselves of the services of the railway company * * •* shall be on the plane of equality.” Chicago, I. & L. Ry. Co. v. U. S., 219 U. S. 486, 496, 31 Sup. Ct. 272, 274 (55 L. Ed. 305).
“The Elkins Act proceeded upon broad lines and was evidently intended to effectuate the purpose of Congress to require that all shippers should be treated alike.” Armour Co. v. U. S., 209 U. S. 56, 72, 28 Sup. Ct. 428, 432 (52 L. Ed. 681). See, also, Chicago & Alton v. Kirby, 225 U. S. 155, 32 Sup. Ct. 648, 56 L. Ed. 1033, and U. S. v. Union Stock Yards, 226 U. S. 286, 33 Sup. Ct. 83, 57 L. Ed. 226.
Against this natural and broad interpretation of the prohibition of “discrimination,” defendant urges that the givifig of credit for freights in the discretion of the carrier was a very common practice; that the practice had been judicially sustained and declared not to be discrimination ; that the practice and these decisions must have been known to' Congress when making amendments to the law; that no amendment was expressly directed against the practice; and hence that the word must still receive its judicially-established construction. This contention requires study of the decisions mentioned. They are three: The opinion of Judge Thayer, for the Eighth Circuit Court of Appeals, in Little Rock Co. v. St. Louis Co., 63 Fed. 775, 11 C. C. A. 417, 26 L. R. A. 192; the opinion of the Fifth Circuit Court of Appeals, by Judge McCormick, in Gulf Co. v. Miami Co., 86 Fed. 407, 30 C. C. A. 142, and Judge Sanborn’s opinion (8th C. C. A., 168 Fed. 161, 94 C. C. A. 217, 21 L. R. A. [N. S.] 982, 16 Ann. Cas. 613), in Gamble-Robinson Co. v. Chicago Co.
The Little Rock Case was a civil action by one railroad against another, complaining because the defendant required plaintiff to prepay freight charges on the freight which it, as an initial carrier, delivered to defendant for further transportation, while defendant did not make the same requirement from the other connecting initial carriers. The common-law right of .the carrier to demand cash payment or to give credit for freights was declared; and the case was seen to depend wholly on the provision in the third section of the act declaring that a carrier should not subject any particular person to any undue or unreasonable disadvantage. Judge Thayer expressly says that' the statute permits one person to be “lawfully subjected to some disadvantage in comparison with others, provided it is not an undue or unreasonable disadvantage.” It was then held that the exercise of this common-law right, which many times would be justified by ordinary business principles, could not be held to be, inherently, undue or unreasonable action.
■ The Gulf-Miami Case presents, so far as this point is concerned, a situation like, but converse to, that of the Little Rock Case. Plaintiff was the connecting and continuing carrier and complained because defendants, initial carriers, delivered traffic to plaintiff’s competitors without requiring payment of the freight then accrued, while insisting on such requirement against plaintiff. The substance of the decision is that the court could not, on the facts of that case, say that this conduct constituted the “unjust discrimination” prohibited by the then existing language of the Interstate Commerce Act. The case, however, mainly depends upon the lack of obligation on the part of the initial carriers to establish any through routes and joint rates by way of the plaintiff’s line, as they had done by way of its competitors’ lines, and the resulting lack of “like circumstances and conditions” attending plaintiff and its competitors.
The Gamble-Robinson Case was based upon transactions occurring on December 15, 1906. The Elkins Act and section 6 of the Interstate Commerce Act were, at that date, in the same form involved' in the instant case; the so-called Hepburn Act having been approved June 29, 1906. Nevertheless, for some reason which the whole record would doubtless .disclose, Judge Sanborn considered only section 4 of the act, directed against “undue or unreasonable preference or advantage,” and, speaking of the Interstate Commerce Act, expressly says (168 Fed. 164, 94 C. C. A. 220, 21 L. R. A. [N. S.] 982, 16 Ann. Cas. 613):
“That act did not make all preferences, advantages, prejudices, or disadvantages unlawful, but those only which are ‘undue and unreasonable.’ ”
And in that connection he refers (168 Fed. 165, 94 C. C. A. 221, 21 L. R. A. [N. S.] 982, 16 Ann. Cas. 613) to decisions of the Supreme Court as upholding practices which, “though elearly discriminatory, were not undue or unreasonable,” and which, although creating “clear inequality and discrimination, did not give * * * an undue or unreasonable * * * disadvantage.” The decision reached by a majority of the court in the Gamble-Robinson Case was that the refusal of credit there involved (while others, generally, were given credit) could not be said to be that “unjust discrimination” which alone was forbidden. From this decision, Judge Hook forcefully dissented; but, giving full force to the majority opinion, we cannot see its application to the Elkins Act; indeed,' its implications are that under .that statute the practices involved in the, instant case would have been condemned.
Our conclusion here is not affected by these queries as to just how far the thought of unreasonableness still inheres in the proper definition of “discrimination” under the Elkins Act. In the instant case, the four months’ credit given to one favored shipper, and then extended for longer periods, was a material and substantial distinction. It was of that character which might permit the favored shipper to continue in business and drive all others out of .business. It is obvious that if continued it might rapidly accumulate into a very large sum. It can
*743 1 “Tie courts are not concerned with tire question as to whether, in a particular case, there had been any discrimination against shippers or harm to other dealers. The statute is general and applies not only to those particular instances in which the carrier did use its power to the prejudice of the shipper, but to all shipments which, however innocent in themselves, come within the scope and probability of the evil to be prevented.” D., L. & W. R. R. v. U. S. (Dec. 1, 1913) 231 U. S. 363, 34 Sup. Ct. 65, 58 L. Ed. —.
Obviously, the situation disclosed by the indictment is inconsistent with the same kind of cash payment which may be exacted from consignees simultaneously with delivery. Where the shipper is to pay the freight, payment on delivery oí the goods to the carrier would be payment in advance. The agreed transportation service might be long delayed or never performed. A great part of the charges'is often made up, as in this instance, of amounts which the initial carrier is to pay over to connecting and delivering carriers, and these payments will naturally be,delayed until convenient accounting periods. The present indictment recognizes this commercial situation by alleging:
“That in the practical operation of the business of shipping coal over the said the Hocking Valley Railway Company, and over other railroad lines doing a like and contemporaneous service in the coal regions of Ohio, there was of necessity and convenience a business plan and usage in dealing with what was and is known as ‘prepaid freight’ shipments, that is to say, with shipments on which the entire freight charges were to be charged by and paid to the initial carrier at shipping point and point of origin by the shipper and consignor, whereby the initial carrier extended credits to coal shippers, with monthly settlements, that is to say, the entire charges for all such ‘prepaid freight’ shipments for each calendar month would be charged to the respective shippers at point of origin of shipment, and that shortly after the end of such calendar month collection in legal money would be, by the initial carrier, made from the shipper, of the entire amount of such ‘prepaid freight’ charges for such month, which said ‘prepaid freight’ charges would include not only the amount due to and earned by the initial carrier as the charge for transportation over its own line, but would likewise, and in addition thereto, include the charges due all connecting carriers for transportation to points of destination of shipments; that such extending of credits from month to month was a practical business necessity and usage in the handling of coal shipments and in taking care of the accounts arising therefor; that the said business plan and usage of so extending credit did not include or allow the giving to any shipper by any such carrier of any further credit beyond that of allowing the charges for each respective calendar month to be paid shortly thereafter, and as soon as the accounting department of the railroad company could in the regular course of business, prepare such account.”
We see no occasion for any more express allegation that other shippers were not given credit; from the others, prompt cash payments were “demanded and collected.” Certainly, giving such favor to one shipper, pursuant to previously existing contract, and demanding and collecting prompt payment from others, is discrimination. It cannot be necessary that the others should have known of the partiality and should have demanded equal treatment. Such concessions are naturally not made generally known.
We have not considered the assignments of error in their order, or mentioned all of the points urged in argument against the judgment-; but those not mentioned do not seem to us as forceful as these we have discussed.
The judgment is affirmed.
The allegation, more precisely stated, is that the total prepaid freight for the month was $30,182, of which $274 only was for interstate traffic; that the carrier received $182 in money and took the shipper’s note for $30,000 payable, in four months at five per cent, interest, without any effort being made on the part of the carrier to enforce the payment in money of the entire amount of its charges or to so enforce the payment in money of any amount in excess of the $182 paid, “but that said amount was so taken and accepted in pursuance, etc.” This statement that this amount was so taken fairly refers to the whole transaction, and means that the cash and the note were so taken in pursuance, etc., or in substantial effect that this credit was given in pursuance, etc.