TOZER V. UNITED STATn.
ttcable; and satd commission shall, from time to time. the measure of pUblicity, which shall be given.to such rates, fares, and eharges. or to luch, part of them as it may deem it practicable for such common to pu.blish. and the places in which they shall be published." '
And the order of the commission made June 21, 1887, plovided that"Such joint tariffs shall be' so published by plainly printing the same ill large type of at least the size of ordinary' pica,' copies of which shall be kept for the use of the public in such places and in such form that they can be conveniently Inspected. at every depot or station upon the line of the carriers uniting in such joint tariff. where any business is transacted in competition with the business of a carrier whose schedules are required by law to be made public as aforesaid."
Scranton was no competing point. No other line, so far as appears, touched the place; and hence no publication of the Joint tariff was there required. Of course the defendant was under no common-law or statute obligation to advise the plaintiff where or how he had better ship his grain. It fulfilled its legal obligation when it published its local tariff; and advised him truthfully in respect to any rates in respect· to which he made special inquiry. For the reasons above stated, on the facts as they appeared in evidence, the Jury should have been instructed to find a verdict for the defendant. The Judgment of the court below will be reversed, and the case remanded for further proceedings in accordance with this opinion. Case' No. 68. Chicago &: Northwestern Railway GYrnpany, Plaintiff in Flrror, v. H. A. Junod and R. Y: Oulbertson, Defl!/Y1,dants in Error, involves the samt' questions, and the same judgment of reversal will be entered.
(CIrcuit Oovrl, E. D. MU80Uri, N. D. November 15,1_)
INTBRSTATE COMMERCE ACT- UNDUB PREFERBNOBS-JOINT 1'JmOUGK TAB1J'Fll.
Where two connecting lines agree on a joint through tariff, luch joint tartff. or the share of it which ellher takes, is not the standard by which to determine whether either line violates, by its local rates. section 8 of the interstate commerce act, forbidding undue preferences. RailJroad 00. v. 08borne. 52 Fed. Rep. 912, followed. J. SAME-VIOLATION 01' "UNDt1B PREFERENOBS" CLAus.....1NDEFINITENESS AND The" undue preferences" clause of the interstate commerce act Is indefinite and uncertain. and a conviction for its violation cannot be sustained where the criminality of the act is made to depend on whether the jury think a preference reasonable or unrealonable.
In Error to the District Court of. the United States for the Northern .Division of the. Eastern District of Missouri.
GeorgeK.T<ner:.was,indiotedAora violation of the ue Tbe nemurrer to the fourto count. 37 Fed.';a£pl 635. , Defeqdant wRsbcm.-, v!c;te4.,:,pde,r the Coullts'.J'or charge to jurr;,. see 39 Fed. Rer>. B69. The court subsequently demed defendant's motIOns for of 3,9 Fed. Rep. 904. .From the judgment.'of convICtIOn, ·defendant brmgserror. Reversed. 'Thilmas J. Portia, (Aldace F. Walker',' o[counsel,) for plaintiff in error';:', ", .. . ., , " " ' .' '(Jem>geD. Reynold8, U. S.,Atty., for the. United States. Jar the United States. CircuitJustice, and qALDWELJ., Circuit Judge.
Plaintiff in error was indicted in the disact. There trict CQQ.rtfor llJl allegedvJQlll-tion of the interstate the The (,lOlart sWJtained a demurrer to the fourth, and the defendant was found. Mt,guilty under the first and fifth,.\lut.gl.1iltYi ,under the,second andthir<il, counts. The jud,,;rnentof conviction'renclered.therecm was brought to this court for review by writ of error. . , The case tU'6,tbef:le: was agent of the Missouri Pa· cific Railway Company at Hannibal, Mo. That company operated a lineof,l1O$.d gxtendillgfrQm,Hannibal to Hepler, AtH;annibal, it oonnected with tbe . ··road·of',tbeChicago,Burlington & Quincy RailrQad COIUPllny. The two a joint tariff. By that joint tariff sugar was shipped from Chicago to Hepler at51 cents a hundred pounds. The local tariff of the Missouri Pacific Railway Company from Hannibal to"Hepler was 46 cents per hundred. The joint tariff was divided between the two companies by giving to the Missouri Pacific Company to the Chicago, & Quincy Company 17 cents. The Hay'\fitrd' Grocer Company, a firm doing business that place to, which shipat Hannibal, shipped ment the regular local rate of 46 cents was charged and collected. They also ordered a Chicago firm to ship sU!!:!l-r from Chicago to the same point. This shipment was made over the Chicago, Burlington & Quincy Railroad, and uponH the joint rate; 51 cents, was charged and paid. It was. argued in the trial court that the Chicago, Burlington & Quincy Ra.ilroad CompanY madef!. contract to carry the sugar;; from Chicago to Hepler, and that, after carrying them over its own line from Chicago to Hannibal, it employ'edthet'MissouriPncific Companr to carry for it the of the way, anq.iPf\id it 34 or, to stt'l,te it in another way, the Missouri Pacific Company charged the Chicago, Burlington & Quincy only 34 cent.s for C8;rrying the sugars Hannibal to Hepler, while Grocer Company, and others living in Hannibal, 46 cents for doing a like work; and it was held that this constituted a giving to one person an undue and unreasonable advantage, and Bubjected one to unjust 'and unreasonabledisad\rantllge, within the denunciation of section 3 of the interstate In other words,
BREWflR, Circuit. Justice.
a comparison was drawn between the local rate of the one company and the share which it received by agreement of the joint through rate of the two companies, and, the two being unequal, the agent was found guilty of violating the act. " The decision of the court of appeals of this circuit, juat announced in the case of Railroad Co. v. 08borne, 52 Fed. Rep. 912, precludes the necessity of any extended discussion. It was there held that each company established its own tariff, and that the reasonableness of the tariff of one is not determined by that of any other. It was also held that two connecting companies, forming by agreement a joint through tariff, (lreate thereby, as it were, a line new and independent of that of either of the connecting companies; and hence that such joint tariff, or the share which either takes of such tariff. is not the basis by which the reasonableness of its local tariff is to be determined. It is true that in that case the question arose under section 4, with reference to long and short hauls, while in this it arises under section 3, prohibiting undue and 'unreasonable preferences or advantages; but &till the questions there decided are controlling here. If the joint through tariff of two connecting roads is not a standard by which the local tariff of either can be declared in violation of &ection 4, neither can it be a standard by which of unfhle preferences is determined u1}der section 3. Bethe <lause tOe local rate is in excess of the share of the joint rate, it does not or advantage has been given. The trial follow <lourt seemed to recognize this proposition, for it charged:
"Now. conceding that some difference between the local rate and the Missouri Pacific Railway Company's proportion of the through rate is permissible. owing to the different conditions affecting the two shipments. the question that I sub· mit to you under the second and third counts is whether the difference shown in this case between the two rates of 12 cents per 100 pounds is. under all the cireumstances of the case, a reasonable difference. or an undue and unreasonable dif· ference, not justified by the different circumstances under which through ship· ments from Chicago and local shipments from Hannibal are made. If you find that the difference in rate of 12 cents per 100 pounds is an undue and unreason· able difference. and, as before explained, that defendant. as agent of the l\'lissouri Pacific Railway Company. knowingly and willfully gave the Chicago. Burlington .& Quincy Railroad the advantae:e of such difference in the shipment of. the two barrels of sUA'ar mentioned in the indictment, then you may return a verdict of guilty on the second and third counts, although you acquit on the first count. * * * In determining the last question submitted to you as to the reasonable· ness or unreasonableness of the difference between the local rate and the Missouri Pacific Company's proportion of the through rate. I give you full liberty to consider all the .facts. circumstances. and reasons adduced by the various wit· nesses in justitication of the difference shown. and I ask you to consider the .same carefully and fairly, without any prejudice or bias whatsoever."
But, in order to constitute a crime, the act must be one which the party is able to know in advance whether it is criminal or not. The -criminality of an act cannot depend upon whether a jury may think it reasonable or There must be some definiteness and certainty. In the case of Railway Co. v. Dey, 35 Fed. Rep. 866, 876, I had occasion to discuss this matter, and I quote therefrom as follows:
"Now. the contention .()f complainant the substance of these provisions is that. if a railroad company charges an unreasonable rate, it shall be deemed a criminal, and punished by tine. and that such a statute is 'too indefinite and un·
ce.rtain. no man being able tell, ill advan,ce ""hat in fact is. or what any jury wIll find to be, a reasonable If this were the construction to be placed upon this act as a whole. it would certainly be obnoxious to complainant's criticism. for no penall"w can be llu8tajlled unless it,s mandates are so clearly expressed that any ordinary person can determine in advance what he may and what he m,ay not do under it. In Dwar. St. 652. it is laid down' that it is impossible to dissent from the doctrine of Lotd Coke thattbe acts of parliament oUg'ht to be ,clearly,and not and 4l/.rkly, penned, i!1 legal . See, also, U. $lIarp. Pet. C. C. 122;, The Enterprise. 1 Pame. 34; Blab.' St,'Crimes. § 41; Lieb. ltetm. 156. In this the author quotes the law of the Chlnl'lse 'Penal Code. whichreadB' as follows: " Whoever is guilty of improper of such as, is contrMY,to the spiri:t of the laws, though not a breach ofanYllpeCific part of it,sballbe}>i:mished at least forty blows; and when the imprp'prlety'is of a serious nature. with eighty blows.' There is very little differenc«kbetiweensuch a statute and one whichwQuld make it a criminal offense to mMe than a reasonable ,rate. See another illustration in Ex parte Jackson,
45 Ark.lp8. "
that doctrine In thiE! caSe, ,and eliminating the idea that the is a standard of of the local rate, there is noth,a Q( [guilty against defendant." Judgment will ,reversed, and,. the case remanded for further proceedings. . .
SNOWl>LOW Co. et at.v.
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VULCAN' IRON WORKs.
, :-. . _ ; .
Wirc'UitOourt of Appeals, Efghth CirCuit. Ootober 17,1892J . ,., No. 126.
1. CONTRACTB....]\b.NUFACTURBR'S. W ARUANTY. Where 'a' contractor agrees to build an lIxperlmental machine. the first under a new, patent, on plallll to be approved by the patentee. with warranty for the workmanship and materials of his own shop, but expressly excepting from the warranty the boiler and other parts bought outside. and the workint< of the machine as a whole. the relativo capacity .of the boiler and engines is not a matter of the contractor's workmanship, nor is he liable for an error therein. 2. ACTION ON BOND-VALUATION. In Illinois. when an ext>erimental machine, nearly complete. is replevied from the person under contract to make it, at a valuation of $10,000 by the such valuation is ,conclusive upon him in an action on the replevin bond, in tbe'abSence of evidence that he was misled. and made it in ignorance of the aetl1al condition of the property. 48 Fed. Rep. 652, affirmed. 8. SAME. In any e.vent; where the replevisor removed the property to a distant place, thus making a fair valuation impossible. and sold it and the patent right for $16.000, the value of the royalty, wholly in the control of the replevisor, having beEln at the time of replevin. his own valuation is conclusive upon the replevisor.
In Error to tlie Circuit Court of the United States for the District of Minnesota. ' bond by the Vulcan Iron Works against the Cyclone Steam SnowPlow Company and C. P. Judgment for plaintiff. Motion for'll. new trial denied. 48 Fed. Rep. 652. Defendants bring error. AtfuUled.