194 F. 252 | N.D. Ohio | 1911
The views expressed by us in the opinion filed to-day, overruling the demurrers to the several counts of the indictment against the Hocking Valley Railway Company, requires us to take the same action in this case. The indictment here contains eight counts, embodying the same transactions as those embraced in counts 11, 13, 14, IS, 16, 17, 18, and 19 of the bill against the railroad. As against the defendant coal company, the law invoked is that part of the Elkins law which makes it unlawful for any “corporation to solicit, accept or receive any * * * discrimination in respect to the transportation of any property in' interstate commerce by any common carrier,” etc.; and the only question here raised is
The word “discrimination,” as used in the Elkins act, is employed in its common sense, as well as with whatever enlarged or more definite meaning the context of the amendment of 1906 gives to it. Thus a shipper who is permitted to settle his charges by paying a “less or different compensation” to the carrier is accepting or receiving a “discrimination.” In this view the indictment against the defendant in this case leaves less to statutory construction than in the main case, for here there is a distinct allegation that the note was taken in payment of that portion of the charge not paid in cash, and pursuant to an agreement to that effect before and at the time the charge was incurred.
We have confidence in our theory that, under all the circumstances here, the settlement on the accounting day for prepaid freights must be related for actual time to the date of service, especially when, as here, such settlement is not only deferred because of an exigent custom of the business which, in that respect, is given uniform operation, but is had, in the form it is given, pursuant .to an agreement had at and before the creation of the obligation. The taking of the note, therefore, in legal effect, is contemporaneous with the rendition of the consideration.
The demurrer to each count is overruled.