254 F. 332 | S.D.N.Y. | 1918
Indictments were filed against the Rehigh Valley Railroad Company, Fred E. Signer, Charles Schaefer, Sr., and Charles Schaefer, Jr., as follows:
(1) D 4336. Against all the above-named parties, for conspiracy. Section 37, Criminal Code (Act March 4, 1909, c. 321, 35 Stat. 1096 [Comp. St. 1916, § 10201]).
(2) D 4337. Against the two Schaefers, for knowingly soliciting, accepting, and receiving a concession from the Rehigh Valley, etc. (ten counts, re boat demurrage). Section 1, Elkins Act (Act Feb. 19, 1903, c. 70S, 32 Stat. 847), as amended June 29, 1906 (34 Stat. 587, c. 3591 [Comp. St. 1916, § 8597]).
(3) D 4339. Against the Rehigh Valley, for knowingly offering, granting,'and giving a concession to Schaefer firm, in respect of the transportation of hay, whereby such property was by a device transported at a less rate than that named in the tariffs (ten counts, re boat demurrage). Section 1, Elkins Act, as amended June 29, 1906.
(4) D 4340. Against the two Schaefers, for knowingly soliciting, accepting, and receiving a concession and discrimination from the Re-high Valley, in regard to shipments of hay (five counts, re receiving “authorizations”; five counts, re actual transportation of hay).
(5) D 4341. Against Rehigh Valley and Signer, for knowingly offering, granting, and giving a concession and discrimination to the Schaefer firm in respect to the transportation of carload shipments of hay, whereby advantages were given and discriminations practiced (five counts, re granting “authorizations”; five counts, re actual transportation of hay). Section 1, supra.
(6) 'D 4338. • Against Rehigh Valley for willful failure strictly to observe tariffs (ten counts). Section 1, supra.
Defendants filed demurrers to each of the above-mentioned six indictments. In respect of indictment (6), D 4338, the attorneys for the Rehigh Valley Railroad Company have requested that they be permitted to withdraw the demurrer and to plead over. Such permission is herewith given.
Since the oral argument, the government has taken over the executive administration of the railroads and the questions involved (except as they affect the particular defendants herein) do not seem to have the broad importance which, apparently they possessed at the time of the argument. By this I merely mean that the determination of the interesting questions involved now concerns only situations which arose prior to the exercise of government control, and that, in view of present government administration, it will be some time before these questions will be of practical importance as affecting the future conduct of carriers and shippers. Because of what has been stated supra, I shall dispose of the questions, with a brief statement of my reasons, and without setting forth any elaborate analysis of cases.
“Every person or corporation, whether carrier or shipper, who shall, knowingly, offer, grant, or give, or solicit, accept or receive any such rebates, concession, or discrimination shall be deemed guilty of a misdemeanor. * * * ” Comp. St. 1916, § 8597.
The mere receiving of permits, unaccompanied by transportation, is not a crime under the act; for the act provides that it is unlawful to “offer, grant or give * * * any rebate, concession or discrimination in respect to the transportation of any property in interstate * * * commerce.”
It is sought to sustain these counts because the indictment charges that defendants “did knowingly offer” the alleged concession and discrimination to the Schaefers. Such an argument relies upon the form of words rather than their substance.
Take, for instance, count 1 as illustrative. What the indictment charges against defendants is that they “did * * * knowingly grant” (not offer) to the Schaefers authorizations for 57 carloads of hay. The word “offer,” where it appears in this and the similar counts, may therefore he treated as surplusage, or as disregarded, because plainly inconsistent with the facts as definitely set forth in the indictment. The demurrer to the five counts is sustained.
Demurrers to counts 6 to 10, inclusive, overruled.
Discrimination re Transportation of Hay (No. D As to the first five counts, the case is even stronger, if anything, for defendants than in No. D 4341. Demurrer to these counts sustained. Demurrer to counts.6 to 10, inclusive, overruled.
Defendants may, of course, plead over in those instanqes where the demurrers are overruled.