Mr. Henry L. Stimson and Assistant Attorney General Ellis for plaintiff in error:
[212 U.S. 509, 511] Messrs. Austen G. Fox, John D. Lindsay, and Albert H. Harris for defendant in error.
Mr. Justice Day delivered the opinion of the court:
This proceeding is here under the act of March 2, 1907 (34 Stat. at L. 1246, chap. 2564, U. S. Comp. Stat. Supp. 1907, p. 209), permitting the government to bring to this court a case where the court below sustains a demurrer to the indictment, in which the judgment involves the construction of a Federal statute upon which the indictment is founded. The indictment to which the demurrer was sustained in this case charges that the Missouri Pacific Railway Company, the Cleveland, Cincinnati, Chicago, & St. Louis Railroad Company, the Lake Shore & Michigan Southern Railway Company, and the New York Central & Hudson River Railroad Company established a joint tariff of rates, fares, and charges which was filed with the Interstate Commerce Commission by the Missouri & Pacific Railway Company, in which the rate set forth, and en- [212 U.S. 509, 513] forced from Poplar Bluff, Missouri, to New York upon cooperage materials was 35 cents for each 100 pounds. It is then charged that in January, 1898, the defendant's traffic manager, Nathan Guilford, and Lowell M. Palmer, president of and agent for the Brooklyn Cooperage Company, entered into an unlawful agreement and arrangement for the shipping of cooperage material over the through line and route aforesaid from Poplar Bluff, Missouri, to New York city, providing that, for the said transportation, the Brooklyn Cooperage Company should pay to the aforesaid common carriers the lawful published rates and charges; that thereafter the defendant, the New York Central & Hudson River Railroad Company, should pay to the said Palmer, as agent for the cooperage company, the sum of 5 4/5 cents for each 100 pounds of said cooperage material so transported, thereby reducing the lawful tariff in that amount, with the result that such cooperage material should and would be transported at a less rate than that named in the published tariffs. The indictment then charged a delivery to the Missouri & Pacific Railroad Company at Poplar Bluff for shipment to New York of cooperage material, which was accordingly shipped to New York by the connecting carriers aforesaid, and over the continuous line and route so established. The indictment charges the payment of certain sums by the defendant to Palmer for the benefit of the cooperage company for rebates and concessions in respect to the carriage of said cooperage material. Different counts in the indictment cover specifically different payments.
The effect of these transactions is charged to be that the defendant did thereby unlawfully and wilfully give a rebate and concession in violation of the act to regulate commerce, whereby the property was transported by said corporation at a less rate than that named in the tariffs aforesaid, published and filed by such common carrier, as required by said act to regulate commerce and the acts amendatory thereof and supplemental thereto.
We need not repeat the discussion had as to the objections [212 U.S. 509, 514] to the Elkins act (32 Stat. at L. 847, chap. 708, U. S. Comp. Stat. Supp. 1907, p. 880), which were considered in Nos. 57, and 69, 212 U.S. 481, 500 , 53 S. L. ed.--, 29 Sup. Ct. Rep. 304, 309. The court below sustained the demurrer upon the ground that the defendant company, the New York Central & Hudson River Railroad Company, is not averred to have filed with the Interstate Commerce Commission the through rate at which the transportation was had, but, as charged in the indictment, the same was filed by the initial common carrier, the Missouri & Pacific Company. 157 Fed. 293. The question then is, Can a carrier be prosecuted under the Elkins act for the offense charged in this indictment where it is a party to a joint rate, but has not filed and published the same? The charge in the indictment is not for the failure of the New York Central & Hudson River Railroad Company to publish the joint tariff, if it were required to do so by the act, but is for the giving of a rebate or concession; and it is contended that the 1st section of the Elkins act makes it unlawful to give or receive any rebate, etc., 'whereby any such property shall, by any device whatever, be transported at a less rate than that named in the tariffs published and filed by such carrier as is required by said act to regulate commerce and the acts amendatory thereto, or whereby any other advantage is given or discrimination is practised.' The argument is that, inasmuch as the tariff was filed and published by the Missouri Pacific Company, and not by the defendant railroad company, it could not be prosecuted for the offense alleged in the indictment. By 1 of the act of 1889 (25 Stat. at L. 855, chap. 382, U. S. Comp. Stat. 1901, p. 3158) it is required, concerning the filing of tariffs:
It is said to have been the practice that such joint tariffs should be filed by the initial carrier. In any event, it was contended and was held by the circuit court that inasmuch as the [212 U.S. 509, 515] Elkins act referred only to the tariffs 'published and filed by such carrier,' and the rebates in this case had been given by a carrier who did not publish and file the rate, the latter company did not come within the terms of the act. We find, however, that 1 of the Elkins act, in which the language quoted is used, also contains the following language:
The learned judge of the circuit court treated this provision as one relating to evidence, and not as establishing a substantive offense. But we think this is giving too narrow a construction to the terms of the statute and fails to give effect to the language used. We recognize the rule which is laid down in the cases cited by counsel for the defendant in error, that criminal statutes are not to be enlarged by construction, and that a crime must be clearly defined in the terms of the act before it can be held to be embraced within its provisions. But, while this is true, criminal statutes, like other acts of legislation, are to receive a reasonable construction, with a view to effecting the purpose of their enactment, and we think it entirely clear that the concluding part of 1 of the Elkins act, which we have above quoted, brings all of the carriers who have participated in any rate filed or published within the terms of the act; as much so as if the tariff had been actually published and filed by such participating carrier. For the statute specifically provides that the published rate shall be conclusively deemed, in any prosecution under the act, to be the legal rate as against the carrier who files the same, or 'participates in any rates so filed and published;' and the section further provides that any [212 U.S. 509, 516] departure from such rate, which would include rates either published or participated in, shall be deemed to be an offense under the act. This part of the 1st section of the Elkins act was evidently enacted with a view to meeting the very situation developed in this case, wherein a joint rate has been established, binding upon all who are parties thereto, and has been filed by one of the participating carriers.
We think the learned judge was in error in holding that offenses of the character charged in this indictment could be prosecuted only as against the carrier actually filing and publishing the joint rate. The judgment of the Circuit Court is reversed.
Mr. Justice Moody took no part in the decision of this case.