Solicitor General Lehmann for plaintiff in error.
[223 U.S. 599, 601] Messrs. Alexander A. Lawrence, William W. Osborne, and M. Hampton Todd for defendants in error.
Mr. Justice Van Devanter delivered the opinion of the court:
These were indictments under that provision of the act to regulate commerce (34 Stat. at L. 584, chap. 3591, U. S. Comp. Stat. Supp. 1909, p. 1149) 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 the 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. United States v. Keitel, 211 U.S. 370, 398 , 53 S. L. ed. 230, 244, 29 Sup. Ct. Rep. 123; United States v. Kissel, 218 U.S. 601, 606 , 54 S. L. ed. 1168, 1178, 31 Sup. Ct. Rep. 124.
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 for [223 U.S. 599, 603] the 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:
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 or [223 U.S. 599, 605] removal 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 in Texas & P. R. Co. v. Cisco Oil Mill, 204 U.S. 449 , 51 L. ed. 562, 27 Sup. Ct. Rep. 358, and upon further consideration we perceive no reason for departing from them. See also Kansas City Southern R. Co. v. C. H. Albers Commission Co. 223 U.S. 573 , 56 L. ed. --, 32 Sup. Ct. Rep. 316.
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.