CONCESSIONS

OVERLAPPING CONTRACTS.

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committed. As to device, is meant that which is devised or formed by design, a contrivance, a project, a scheme to deceive, a strategem or an artifice." (United States v. Armour Packing Co. et al. U. S. Dist. Court, Eastern District of Missouri, June 12, 1906.)

§ 24. Criminal Liability Concessions - Overlapping Contracts.-The Elkins Act renders the person or corporation who receives a rebate liable in the same manner as a person who solicits or accepts such rebate. Criminal proceedings were instituted against both the carrier and the shipper for a violation of the Elkins Act with regard to giving and receiving rebates. The cases were tried before Judge McPherson in Kansas City, Mo., in June, 1906. The shippers were tried first and convicted. See United States v. Armour Packing Co., supra. The carrier, to wit, the Chicago, Burlington and Quincy Railroad Company was also found guilty upon the same charge upon which the shippers were convicted, namely, for accepting a rate of twenty-three cents per 100 pounds on shipments of lard consigned to Germany via the Burlington railway, after the legal rate was increased to thirty-five cents per 100 pounds. The railroad company contended that the charge was legal because it had made a contract with the shippers to carry for twenty-three cents per 100 pounds, which contract did not expire until the 31st day of December, 1905, although on the 6th of August, 1905, prior to the expiration of said contract the tariff rates were increased from twenty-three cents per 100 pounds to thirty-five cents per 100 pounds. The carrier claimed, therefore, that upon this overlapping contract it had a right to continue to charge but twenty-three cents per 100 pounds. The railroad company claimed that it had a joint rate under its contract with the Clover Leaf and Lehigh Valley railroad to carry the packing-house products at a rate which would have been valid had it been published. They argued that the only crime committed, if any, was the failure to publish the tariff under the contract, while the indictment charged that the defendant granted a concession from a portion of a through rate. That if a concession was made at all it was on the entire or through rate

and reduced the through rate, the amount of such concession, but did not and could not be offered to any fractional part of the through rate. Defendants claimed that the Burlington railroad kept its contract, which was made in good faith and kept in good faith and that, therefore, it was not guilty of giving a rebate as charged in the indictment but was guilty only of failure to publish and file its tariff rate. The United States district attorney answered this contention by saying that the facts disclosed a clear violation of the Elkins Act, because the Burlington Railroad Company had made a contract with the packing company at the rate of twenty-three cents per 100 pounds and had continued to live up to that. contract after there had been filed with the Interstate Commerce Commission an amended tariff of thirty-five cents. Judge McPherson charged the jury that the defendant, the Burlington Railroad Company, had no right to make a contract for a period longer than the established rate of twentythree cents should be in force. That by carrying shipments for twenty-three cents after August 17, 1905, when the tariff was raised to thirty-five cents, was, as matter of law, a concession for which the railroad company was liable under the indictment, and that the failure of the company to file the schedule of twenty-three cents was wholly immaterial. Defendants were convicted. (United States v. Chicago, Burlington & Quincy Ry. Co., tried June 13, 1906.)

VI. COMMERCE ACT-MANDAMUS.

§ 25. Mandamus-Effect of New Legislation as to.The Interstate Commerce Act was designed to regulate the conduct of the carrier, and to protect the interest of the shipper. In many instances the carrier succeeded in securing unjust preferences in favor of particular shippers, by allowing the use of cars and terminal facilities to those favored, to the exclusion of other shippers. In order to remedy this evil, Congress, by the act approved March 2, 1889, added section 23 to the Commerce Act, thereby giving to the shipper an additional summary and effective remedy by writ of mandamus, to compel the carrier to move

interstate traffic upon equal term to all shippers similarly situated, and to furnish all shippers alike with cars or other "facilities for transportation." Section 1 of the act defines "transportation" as including "all instrumentalities of shipment or carriage." This section was amended by the act approved June 29, 1906, so as to include in the term "railroad" not only bridges and ferries, but "all switches, spurs, tracks, and terminal facilities of every kind used or necessary in the transportation of persons or property, freight depots, yards, and grounds used or necessary in transportation or delivery of property." The term "railroad," under the amendment, includes "cars and other vehicles, and all instrumentalities and facilities of shipment or carriage." Transportation, the amendment declares, must be furnished by the carrier "upon reasonable request therefor." Section 3 of the act commands the carrier to furnish "equal facilities" for interchange of traffic. Spur tracks, sidings, and switches, under the 1906 amendment, are now expressly included in the terms "transportation" and "terminal facilities" and were designed doubtless to furnish a remedy for such treatment as the shipper received, as shown in the case of Harp v. Choctaw Railroad, 125 Fed. Rep. 445, C. C. A. Eighth Circuit, October, 1903, and for which the court could find no remedy. For a report of this case, see "Snyder's Interstate Commerce Act," page 76.

§ 26. Mandamus — Jurisdiction of Federal Court as to.Congress has power to authorize a Circuit Court of the United States to issue a writ of mandamus in an original proceeding. In order to confer power to issue such a writ, the act must be clear and explicit, and will not be construed into the act, and the authority will not be conferred by implication. Prior to 1906, neither section 20, nor section 12 of the Interstate Commerce Act, conferred authority upon a Federal court to issue a writ of mandamus to compel a common carrier to make a report of the matters and things specified in section 20 of the act. A grant of authority to the commission to enforce the act and to institute "all necessary proceeding for the enforcement of the provisions of the

act, will not authorize a summary proceeding by mandamus.” (Knapp v. Lake Shore Ry. Co., 197 U. S. 536.)

In view of this decision, Congress, by the act approved June 29, 1906, has given express authority to the court to issue its writ of mandamus to enforce "any of the provisions" of the Commerce Act, or of any act supplemental thereto or amendatory thereof. See section 20 of the Commerce Act as amended 1906.

§ 27. Mandamus - Writ May Fix Percentage of Cars.Judge Goff, in United States ex rel. Kingwood Coal Co. v. West Virginia R. R. Co., 125 Fed. Rep. 252, held that a shipper could compel the carrier to furnish cars, and that this right could be compelled by mandamus, under section 23 of the Commerce Act (added to the act by Laws 1889, chap. 382, § 10, approved March 2, 1889), and that an alternative writ could be amended even after issue joined. The writ granted by the court fixed the allotment of cars to which relator was entitled. The ruling of Judge Goff was affirmed by the Circuit Court of Appeals. In commenting on the power of the court to fix the percentage of cars, the court said:

"It is insisted in a proceeding of this character to fix the percentage of cars the relator should have, and to command that such percentage of cars should be furnished to the relator.' The acts of Congress forbade discrimination and made it unlawful to give any undue or unreasonable preferences or advantage to particular persons, companies, corporations, or localities, or any particular description of traffic, or to subject them to any undue or unreasonable prejudice or disadvantage in any respect whatever,' and vested jurisdiction in the Circuit and District Courts to proceed by mandamus as a cumulative remedy for violations of the statutory provisions. We are unable to accept the view that Congress intended to confine the scope of the writ to admonition merely, or to a general command to desist from discrimination, rather than from the particular action in which the discrimination consisted. By the findings, the delivery to the relator of any less than 31

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per cent. of the supply amounted to unlawful discrimination, and the judgment of the court did no more than to correct it." (West Virginia R. R. Co. v. United States ex rel. Kingwood Coal Co., 134 Fed. Rep. 198.)

§ 28. Mandamus Right to Not Affected by Contract With Carrier.-If there is no contract between the shipper and the carrier, and no agreement entered into between them as to the proportion of cars to which the shipper shall be entitled, then the shipper may demand, under the Interstate Commerce Act, section 23 (added March 2, 1889, being section. 10 of chapter 382, Laws 1889), and it will be the duty of the court to direct the carrier by a writ of mandamus to discharge the public duty imposed upon it by law, and to move and transport traffic or to furnish cars or other facilities for transportation to the party applying for the writ. (West Virginia R. R. Co. v. United States ex rel. Kingwood Coal Co., 134 Fed. Rep. 198.)

The fact that the carrier made a contract with the shipper, hereby the latter agreed to receive a certain proportion of cars, as its allotment, to be furnished to it by the carrier, will not deprive the shipper of his remedy by mandamus, where the carrier failed to furnish the cars as agreed, and failed to perform the contract with the shipper on its part. It matters not how petitioner's right to an equal distribution of cars may have arisen, whether by contract, statute, or common law. If a contract has been entered into between carrier and shipper, fixing the number of cars to which the latter is entitled, and the carrier fails to perform it, the shipper may resort to a writ of mandamus to compel the carrier to perform its duty under the statute; and the agreement will be considered as in aid of the statute, by fixing, as between the parties, what should be considered and accepted as a compliance with its requirements. (United States ex rel. Greenbriar Coal & Coke Co. v. Norfolk Ry. Co., 143 Fed. Rep. 266. February 6, 1906, Circuit Court of Appeals, Fourth Circuit.)

The duty imposed by law upon a common carrier to furnish the shipper with cars is a public duty. It is a duty im