Opinion · Supreme Court of the United States
United States v. Miller
United States v. Miller, 223 U.S. 599 (1912)
- Type
- Opinion
- Court
- Supreme Court of the United States
- Jurisdiction
- Federal
- Date
- 1912-02-26
- Topic
- general
Mr. Justice Van Devanter delivered the opinion of the court. These were indictments-under that provision of the act to regulate commerce,. June 29,1906, 34 Stat. 584,. c. 3591, which makes it a misdemeanor for a shipper knowingly to solicit, accept or receive, from any common carrier subject to the act, a rebate or concession whereby property is ■transported in interstate commerce “at a less rate than that named in the tariffs published and filed by such carrier, as is required by said act;” and the question presented for decision is, whether compliance with the requirement in respect of the posting of tariffs in the depots, stations or offices of the carrier is essential to bring a tariff within the descriptive terms of that provision. We say this is the question for decision, because it appears from tbe record that the Circuit Court, in sustaining demurrers to the indictments, placed its decision solely upon- the ground that they did “not allege that the. schedules and tariffs alleged to have been violated were posted in the manner required by law,” and because upon these direct writs of. error we must accept that court’s interpretation of the indictments and confine our review to the question of the construction of the statute involved in its decision.
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- Cited by
- 42 opinions
Headnotes
- General — Interstate Commerce — Tariff Posting Requirements The filing of tariffs with the Commission, together with their printing and publication in the prescribed manner, is the step that makes rates legally operative; posting of schedules in the carrier's depots is not a condition of establishing a rate, but is a continuing duty that arises after the rate has been established. 223 U.S. 599 (citing § 6 of the Interstate Commerce Act, as amended by the Hepburn Act of 1906)
- General — Interstate Commerce — Publication Versus Posting Publication and posting are essentially distinct under the Interstate Commerce Act; publication consists of promulgating and distributing the tariff in printed form preparatory to putting it into effect, whereas posting is a continuing act designed to afford the public convenient means of ascertaining the rates already in force. 223 U.S. 599
- General — Interstate Commerce — Operative Effect of Established Rates Once a rate is lawfully established, it remains operative until changed in the mode prescribed by the act, and the mere failure to post the schedule—or the removal or destruction of a posted copy—does not disestablish or suspend the rate, since construing the posting clause otherwise would defeat the object of the act. 223 U.S. 599 (following Texas & Pacific Railway Co. v. Cisco Oil Mill, 204 U.S. 449)
- General — Interstate Commerce — Penal Provisions — Shippers' Liability for Rebates A shipper who knowingly solicits, accepts, or receives a rebate or concession from a rate named in tariffs published and filed by the carrier, as required by the act, is subject to the penalty imposed by the Elkins Act as amended, notwithstanding the carrier's failure to post the schedules in its depots. 223 U.S. 599 (construing § 1 of the Elkins Act as amended by the Hepburn Act of 1906)
- General — Interstate Commerce — Carrier's Liability for Failure to Post Whether a carrier becomes subject to a penalty for its own failure to comply with the posting clause of § 6 is a question distinct from the shipper's liability, and is not determined by the construction of the statute governing the shipper's offense. 223 U.S. 599
UNITED STATESv. MILLER,223 U.S. 599(1912)
32 S.Ct. 323
UNITED STATESv. MILLER.
SAMEv. SAME.
ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF
GEORGIA.
Nos. 607, 608.
Argued January 9, 1912.
Decided February 26, 1912.
THE facts, which involve the construction of certain
provisions of the Interstate Commerce Law as amended by the
Hepburn Act of 1906 to regulate commerce, are stated in the
opinion.
Where the carriers have done everything prescribed by the statute with regard to a through joint rate for transportation over a through route under a common arrangement, except posting the schedules in the depots, a shipper who knows what the established rate is, is guilty of a violationPage 600of § 1 of the Elkins Act as amended by the Hepburn Act if he knowingly solicits, accepts, and receives a concession from that rate.
Proof of a violation of the act by a shipper would be rendered practically impossible, and certainly senselessly difficult, laborious, and expensive, if in every prosecution primary evidence of posting the schedules and keeping them posted in every depot were required. The shipper indeed might secure immunity by himself removing the schedule from some depot before applying for and getting his concession, as the established rate would then no longer be in existence.
Every purpose of the law would be defeated if rates existed by so precarious a tenure.
The question has in effect been determined inTexas andPacific Ry. Co. v.Cisco Oil Mill,204 U.S. 449. Although that case concerns the construction of the section in a civil cause, that affords no reason for saying that the authoritative construction of the statute is not to be applied in a criminal case.United Statesv.Keitel,211 U.S. 370,392.
As early as 1892, inUnited Statesv.Howell, 56 F. 21, 29, it was held as against shippers that the posting of rates in the depots was not essential to their establishment.
In no Federal case, other than the one at bar, has the posting in depots been held essential to the establishment of the rate.
The amendments made to the law since theCisco Casewas decided were not designed to weaken it, but to guard it more carefully than before against rebates, concessions, and discriminations.
In this case there is charged in the indictment a rate established by the carrier, knowledge by the defendants of what the rate was, and the solicitation and acceptance of a lesser rate.
The requirements of the statute have been fulfilled, and the indictment should be sustained.Page 601Mr. Alexander A. Lawrence, with whomMr. M. Hampton ToddandMr. William W. Osbornewere on the brief, for defendant in error:
An indictment of a shipper for accepting a concession from a freight rate is properly quashed when there is no averment therein that the rate in question had been posted in the freight station where the freight was received or elsewhere.
As a condition of criminality, the statute prescribes that the shipper must violate a tariff rate published as prescribed by the act. The act prescribes as a part of the publication that the tariffs should be posted in two conspicuous places where freight is received. It is admitted that the rates alleged to be violated were not so posted. Where the statute prescribes a method of publication the Government may not in order to secure a conviction allege and show that it had been published only in part.Texas Railway Co. v.Cisco Oil Mill,204 U.S. 449;Armour Packing Co. v.United States,209 U.S. 72.
Neither theCisco Case, supra, nor theAbilene Cotton Co.Case,204 U.S. 437, construed the penal provisions. While neither the filing nor publication of the rate is a condition precedent to its establishment, validity, or effectiveness from a civil standpoint, both filing and publishing are, under the Hepburn Act, conditions precedent to the penal operation of the statute with respect to the shipper.
The distinction between an established and a published rate and the consequences of a departure therefrom by a shipper are clear. SeeHardawayv.State,1 Ga. App. 150.
The omission of an essential allegation is fatal to the indictment.United Statesv.Cook, 17 Wall. 174;UnitedStatesv.Wood, 145 F. 409;Camden Iron Worksv.United States, 158 F. 564.
Counsel for the Government citedUnited Statesv.Howell, 56 F. 21;Chicago R.R. v.United States, 162 F. 838;The Cisco Case,204 U.S. 449,452, andPage 602United Statesv.N.Y. Cent. Hudson R.R.R.,212 U.S. 509,515, and 157 F. 293, but neither of these cases involves the construction of the act in reference to posting. It is established by them that a carrier which participates in a rate filed or published by another carrier is by virtue of the act made liable to the penal provisions of the statute for any concession granted.
That the act imposes upon common carriers subject to its provisions the duty of establishing in a prescribed mode the rates, whether individual or joint, to be charged forPage 603the transportation in interstate commerce of property over their lines, and that the rates so established are obligatory alike upon carrier and shipper, and must be strictly observed by both until changed in the mode prescribed, are propositions which are not only plainly stated in the act, but settled by repeated decisions of this court. In speaking of the rates which must be thus observed, the act variously designates them as the rates "named in the tariffs published and filed," the "charges which have been filed and published," the "charges which are specified in the tariff filed and in effect at the time," the "regular charges . . . as fixed by the schedules of rates provided for in this act," and the "regular rates then established and in force," but in none of these expressions is there any suggestion that posting is a necessary step in establishing rates, that is, in making them legally operative. Of course, these expressions, although differing in words, are identical in meaning, and to ascertain that meaning recourse must be had to § 6 of the act, which, at the time of the offenses charged in these indictments (1907-8), declared:
"SEC. 6. That every common carrier subject to the provisions of this Act shall file with the Commission created by this Act and print and keep open to public inspection schedules showing all the rates, fares, and charges for transportation between different points on its own route and between points on its own route and points on the route of any other carrier by railroad, by pipe line, or by water when a through route and joint rate have been established [meaning adopted]. . . . Such schedules shall be plainly printed in large type, and copies for the use of the public shall be kept posted in two public and conspicuous places in every depot, station, or office of such carrier where passengers or freight, respectively, are received for transportation, in such form that they shall be accessible to the public and can be conveniently inspected.Page 604. . .Provided, That the Commission may, in its discretion and for good cause shown, . . . modify the requirements of this section in respect to publishing, posting, and filing of tariffs, either in particular instances or by a general order applicable to special or peculiar circumstances or conditions. . . . No carrier, unless otherwise provided by this Act, shall engage or participate in the transportation of passengers or property, as defined in this Act, unless the rates, fares, and charges upon which the same are transported by said carrier have been filed and published in accordance with the provisions of this Act. . . ."
It is the contention of the defendants that a tariff is not published in the sense in which the act uses that term unless printed copies are "kept posted in two public and conspicuous places in every depot," etc., and it was this contention that prevailed in the Circuit Court. But, in our opinion, it is not sound. Publication and posting in the sense of the act are essentially distinct. This is the import of the provision that the requirements relating to "publishing, posting and filing" may be modified by the commission in special circumstances, for if publishing included posting, mention of the latter was unnecessary. And from all the provisions on the subject it is evident that the publication intended consists in promulgating and distributing the tariff in printed form preparatory to putting it into effect, while the posting is a continuing act enjoined upon the carrier, while the tariff remains operative, as a means of affording special facilities to the public for ascertaining the rates in force thereunder. In other words, publication is a step in establishing rates, while posting is a duty arising out of the fact that they have been established. Obviously, therefore, posting is not a condition to making a tariff legally operative. Neither is it a condition to the continued existence of a tariff once legally established. If it were, the inadvertent or mischievous destruction orPage 605removal of one of the posted copies from a depot would disestablish or suspend the rates, a result which evidently is not intended by the act, for it provides that rates once lawfully established shall not be changed otherwise than in the mode prescribed.
Like views of the posting clause were expressed inTexas andPacific Railway Co. v.Cisco Oil Mill,204 U.S. 449, and upon further consideration we perceive no reason for departing from them. See alsoKansas City Southern Railway Co. v.AlbersCommission Co., ante, p. 573.
Whether, by failure to comply with that clause, a carrier becomes subject to a penalty is apart from the present case and need not now be considered.
The judgments are reversed, and the cases are remanded for further proceedings in conformity with this opinion.Reversed.