155, 56 L. Ed. 1033, 32 Sup. Ct. 648. When two lumber manufacturing companies use the same railroad, owned by one of them, the one not owning the railroad cannot participate in divisions allowed such carrier.-Fourche River Lumber Co. v. Bryant Lumber Co., 230 U. S. 816, 57 L. Ed. 1498, 33 Sup. Ct. 887, reversing Bryant Lumber Co. v. Fourche River Lumber Co., 97 Ark. 623, 135 S. W. 796.

A shipper cannot be convicted of accepting a rate less than the published rate when the true rate is unknown, a fine of $29,240,000 set aside.-Standard Oil Co. of Ind. v. U. S., 164 Fed. 376, 90 C. C. A. 364, reversing U. S. v. Standard Oil Co., 155 Fed. 305. Refund of elevator charges.-Wisconsin C. Ry. Co. v. U. S., 169 Fed. 76, 94 C. C. A. 444.

Intent of the carrier is the essence of the offense.-A. T. & S. F. Ry. Co. v. U. S., 170 Fed. 250, 95 C. C. A. 446, reversing U. S. v. A. T. & S. F. Ry. Co., 163 Fed. 111.

Each payment of freight one offense.-U. S. v. Standard Oil Co., 170 Fed. 988. Case distinguished and each shipment held the unit.-U. S. v. Standard Oil Co. of N. Y., 192 Fed. 438. The question is discussed and the conclusion reached that each shipment is a separate offense.-Grand Rapids & I. Ry. Co. v. U. S., 212 Fed. 577, 587, 129 C. C. A. 113. Allegations in indictment sufficient.-Standard Oil Co. of N. Y. v. U. S., 179 Fed. 614, 103 C. C. A. 172. No violation of the statute under the facts here shown.-U. S. v. Standard Oil Co. of Ind., 183 Fed. 223. Whether a rebate or a settlement of a valid claim a question for the jury.-Lehigh Valley R. Co. v. U. S., 188 Fed. 879, 110 C. C. A. 513, affirming U. S. v. P. & R. Ry. Co., 184 Fed. 543; U. S. v. Bethlehem Steel Co., 184 Fed. 546; U. S. v. Lehigh Valley R. Co., 184 Fed. 546. Posting necessary.-U. S. v. Miller, 187 Fed. 375, reversed, holding contra, U. S. v. Miller, 223 U. S. 599, 56 L. Ed. 568, 32 Sup. Ct. 323. That a rate not intended to apply no defense.-Merchants & Miners Transportation Co. v. U. S, 199 Fed. 902. Indictment for fraudulently obtaining transportation at an illegal rate.-U. S. v. Sterling Salt Co., 200 Fed. 593. No variance under the facts here.-Grand Rapids & I. R. Co. v. U. S., 212 Fed. 577 and 589; Nichols & Cox Lumber Co. v. U. S., 212 Fed. 588. A common carrier may not grant special favors. Johnson v. N. Y., N. H. & H. R. Co., 111 Me. 263,

88 Atl. 988. Not a rebate to compensate a shipper for services rendered or instrumentalities furnished.-U. S. v. B. & O. R. Co., 231 U. S. 274, 58 L. Ed. 218, 34 Sup. Ct. 75. The filed tariffs must be taken notice of by shippers and must be adhered to.-A. T. & S. F. Ry. Co. v. Robinson, 233 U. S. 173, 58 L. Ed. 901, 34 Sup. Ct. 556; Great No. Ry. Co. v. · O'Connor, 232 U. S. 508, 58 L. Ed. 703, 34 Sup. Ct. 380. Payment to freight forwarder a rebate.-Waters-Pierce Oil Co. v. United States, 222 Fed. 69, 137 C. C. A. 293. May be rebate although part of through movement in Canada.-United States v. Grand Trunk R. Co., 225 Fed. 283.

Notes of Decisions Rendered Since 1915.

Any departure from the tariff whether discriminatory or not is unlawful.-Vandalia R. Co. v. United States, 226 Fed. 713, 141 C. C. A. 469; Davis v. So. Pac. Co., 235 Fed. 731. However, payments although stated in the tariffs, which are not authorized by the statute are unlawful.-Cent. R. Co. of N. J. v. United States, 229 Fed. 501, 143 C. C. A. 569. Form of indictment of a corporation.-United States v. C. C. C. & St. L. Ry. Co., 234 Fed. 178. Any pecuniary inducement unlawful.-Northern C. Ry. Co. v. United States, 241 Fed. 25, 154 C. C. A. 25; petition for certiorari denied, 245 U. S. 645. The mere offer to pay a rebate is unlawful.-United States v. Lehigh V. R. Co., 254 Fed. 332. "Shipper" defined and indicted.-United States v. Metropolitan Lumber Company, 254 Fed. 335. Cannot lawfully make retroactive provisions of tariffs authorizing refund of switching charges.-Penn. Co. v. United States, 257 Fed. 261, 168 C. C. A. 345. This section. does not prevent the recovery of damages.-Penn. R. Co. v. Olivit Bros., 243 U. S. 574, 61 L. Ed. 908, 37 Sup. Ct. 468.

Notes of Decisions Rendered Since 1920.

Where railroad had knowledge of its rates that violated long-and-short-haul provisions of Sec. 4 and asserted right to maintain such rates without permission of Commission, conviction was justified.-U. S. v. Penn. R. R. Co., 21 Fed. (2d) 579. Corporation under contract to ice and re-ice cars. for carrier not guilty of violating section in making erroneous reports to carrier as to amount of ice furnished and which

carrier charged against shipments.-U. S. v. Fruit Growers' Exp. Co., 279 U. S. 363, 73 L. Ed. 739, 49 Sup. Ct. 374.

§ 463. Act of Officer or Agent, When Binding. In construing and enforcing the provisions of this section, the act, omission, or failure of any officer, agent, or other person acting for or employed by any common carrier, or shipper, acting within the scope of his employment, shall in every case be also deemed to be the act, omission, or failure of such carrier or shipper as well as that of the person.

Second paragraph of Section 1 of the original Elkins Act, except the Act of June 29, 1906, added the words "or shipper" after "carrier" where it occurs.

Because the act of the agent is the act of the corporation, both may be included in one indictment.-New York C. & H. R. R. Co. v. United States, 212 U. S. 481, 53 L. Ed. 613, 29 Sup. Ct. 304.

§ 464. Carrier Filing or Participating in Rate Bound Thereby. Whenever any carrier files with the Interstate Commerce Commission or publishes a particular rate under the provisions of the Act to regulate commerce or Acts amendatory thereof, or participates in any rates so filed or published, that rate as against such carrier, its officers or agents, in any prosecution begun under this Act shall be conclusively deemed to be the legal rate, and any departure from such rate, or any offer to depart therefrom, shall be deemed to be an offense under this section of this Act.

Part of second paragraph of Section 1 Elkins Act, as originally enacted, except "thereof" was substituted for "thereto," in the Act of June 29, 1906.

Section applied in a prosecution for rebating.-U. S. v. New York C. & H. R. Co., 212 U. S. 509, 53 L. Ed. 629, 29 Sup. Ct. 313.

§ 465. Forfeiture for Rebating in Addition to Penalties; Limitation of Six Years Fixed. Any person, corporation, or company who shall deliver property for interstate transportation to any common carrier, subject to the provisions of this Act, or for whom, as consignor or consignee, any such carrier shall transport property from one state, territory, or the Dis

trict of Columbia, to any other state, territory or the District of Columbia, or foreign country, who shall knowingly by employee, agent, officer, or otherwise, directly or indirectly, by or through any means or device whatsoever, receive or accept from such common carrier any sum of money or any other valuable consideration as a rebate or offset against the regular charges for transportation of such property, as fixed by the schedules of rates provided for in this Act, shall in addition to any penalties provided by this Act forfeit to the United States a sum of money three times the amount of money so received or accepted and three times the value of any other consideration so received or accepted, to be ascertained by the trial court; and the Attorney-General of the United States is authorized and directed, whenever he has reasonable grounds to believe that any such person, corporation, or company has knowingly received or accepted from any such common carrier any sum of money or other valuable consideration as a rebate or offset as aforesaid, to institute in any court of the United States of competent jurisdiction a civil action to collect the said sum or sums so forfeited as aforesaid; and in the trial of said action all such rebates or other considerations so received or accepted for a period of six years prior to the commencement of the action may be included therein, and the amount recovered shall be three times the total amount of money, or three times the total value of such consideration, so received or accepted, or both, as the case may be.

New provision added to Section 1, Elkins Act, by Act June 29, 1906.

§ 466. Jurisdiction Over Water Carriers.-When property may be or is transported from point to point in the United States by rail and water through the Panama Canal or otherwise, the transportation being by a common carrier or carriers, and not entirely within the limits of a single state, the Interstate Commerce Commission shall have jurisdiction of such transportation and of the carriers, both by rail and by water, which may or do engage in the same, in the following particulars, in addition to the jurisdiction given by the Act to regulate commerce, as amended June eighteenth, nineteen hundred and ten:

Part of Panama Canal Act, Act Aug. 24, 1912, being Section 11 of that Act, first part of paragraph (13) of Section 6 of Interstate Commerce Act as numbered by Transportation Act,

1920.

Through route with water carrier established and section discussed.-Augusta & Savannah Steamboat Co. v. O. S. S. Co., 26 I. C. C. 380. Power of the Commission under the section stated.-Wharfage Facilities at Pensacola, Fla., 27 I. C. C. 252, 257. Boat lines upon meeting all reasonable requirements are entitled to the establishment of through routes and joint rates.-Truckers' Transfer Co. v. C. & W. C. Ry. Co., 27 I. C. C. 275. "Any proper development that will open our water ways to the use of the public should be encouraged."-Lumber Rates, Oregon and Washington to Eastern Points, 29 I. C. C. 609, 619. Through routes and joint rates established with water carriers.-Tampa Board of Trade v. L. & N. R. Co., 30 I. C. C. 377; Decatur Navigation Co. v. L. & N. R. Co., 31 I. C. C. 281; Bowling Green Protective Ass'n v. E. & B. G. P. Co., 31 I. C. C. 301, 306. Through routes and joint rates established with rail carrier, although such carrier had rails the whole length of the route, the Commission. saying, "The spirit of the Act to regulate commerce is to maintain the freedom of our ports and to allow boat lines to engage in traffic upon equal terms."-Pacific Navigation Co. v. S. P. Co., 31 I. C. C. 472; Transcontinental Commodity Rates, 31 I. C. C. 449; Tampa Board of Trade v. A. & V. R. Co., 33 I. C. C. 457; Federal Sugar Refining Co. v. C. of N. J. R. Co., 35 I. C. C. 488.

Notes of Decisions Rendered Since 1915.

These annotations apply to this and Sections 467 to 471, inclusive. A boat line must be ready to perform its functions before through routes and proportional rates will be accorded. Charleston & Norfolk S. S. Co. v. C. & O. Ry. Co., 40 I. C. C. 382, 47 I. C. C. 365. For a comprehensive discussion of this and the following five sections, showing that the Transportation Act, 1920, largely adopted what the Commission had already decided, see Baltimore & Carolina S. S. Co. v. A. C. L. R. Co., 49 I. C. C. 176. Further construing these sections.-Colonial Nav. Co. v. N. Y., N. H. & H. R. Co..