225 F. 283 | W.D.N.Y. | 1915
The indictments against the defendants, Grand Trunk Railway Company of Canada, the Empire Circuit Company, and Frank P. Dwyer, contain two counts, each substantially alleging a conspiracy to violate section 6 of the act to regulate commerce, approved February 4, 1887, as amended; the first count alleging that in 1908 an agreement was made between the Grand Trunk Railway Company, a corporation of the Dominion of Canada operating a railway from Detroit to Buffalo, Buffalo to Toronto, Toronto to Montreal, and Montreal to Boston, and the defendant the Empire Circuit Company, for the exclusive right to transport shows owned'by the stockholders of the latter in return for a rebate of $200 a month to be paid or remitted to the Empire Circuit Company out of the lawful fares for such transportation, the existence of such agreement to be concealed by a pretended contract for advertising. The second count alleges a similar conspiracy, entered into on May 1, 1910, except that the refund or rebate was to be at the rate of $300 per month, which was tó be “ostensibly in return for the publication in theatrical programs of certain advertising' matter which was greatly in excess of the true and actual worth” thereof. Overt acts are alleged, which, it is claimed, were committed with the intention of effectuating the conspiracy, and consisted, inter alia, of the transportation of the shows from Detroit'to Buffalo, and from Buffalo to Toronto, Canada, at the rate of fare published and filed with the Interstate Commerce Commission.
The principal grounds of demurrer are: (a) That the indictment charges no crime, as the filing or publishing of tariffs relating to transportation of passengers from one point to another in the United States is not required where the destination is reached through a foreign country; (b) that the indictment is defective, in that it fails to charge that the rebates were to be paid out of fares for transportation solely within or from the United States; (c) and that, if a statute was violated, it was section 6 of the Interstate Commerce Act, conspiracy for the violation of which will not lie.
I think the indictment sufficiently states the offense, and that defendants are fairly apprised of the charge they will be required to meet at the trial. The demurrers are overruled.