Chapter 2.-LEGISLATION SUPPLEMENTARY TO "INTERSTATE Sec. COMMERCE ACT" [ELKINS ACT] 41. Liability of corporation carriers and agents; offenses and penalties. (1) Liability of corporation common carriers; offenses; penalties; juris- (2) Liabilities for acts of agents; departure from published rates. 42. Parties included in proceedings to enforce law. 43. Proceedings in equity to enforce tariffs, etc.; district attorneys; damages; witnesses; precedence. 44. Expedition of suits. 45. Appeals to Supreme Court. [EXPEDITING ACT] [COMPULSORY TESTIMONY ACTS] 46. Self-criminating testimony; perjury; refusal to testify. 47. Immunity of witness from prosecution; perjury. [IMMUNITY OF WITNESSES ACT] 48. Immunity extended to natural persons only. [INTERSTATE COMMERCE ACT, SEC. 23] 49. Mandamus to obtain equal facilities for shippers. [MANN-ELKINS ACT, JUNE 18, 1910, SEC. 6, 2D PAR.] 50. Agent in Washington for service; service in default of designation. [PANAMA CANAL ACT, SEC. 11-PART] 51. Proceedings relating to rail and water routes; orders. [SUNDRY CIVIL APPROPRIATIONS ACT, AUG. 1, 1914] 52. Railroads to serve employees in valuation work; compensation. [CINCINNATI SOUTHERN RAILWAY TRUSTEES ACT] 53. Exception to law prohibiting free transportation. 54. [Repealed.] [HOCH-SMITH RESOLUTION] 55. Policy in making rate adjustments; investigation of rates authorized. 56. [Repealed.] [SUNDRY CIVIL APPROPRIATIONS ACT, MAR. 2, 1889] 57. Auditing accounts of commission. [SUNDRY CIVIL APPROPRIATIONS ACT, AUG. 1, 1914] 58. Exchange of typewriters, etc. ELKINS ACT 4 5 Section 41. Liability of corporation carriers and agents; offenses and penalties.-(1)1 Liability of corporation common carriers; offenses; penalties; jurisdiction.-2Anything done or omitted to be done by a corporation common carrier, subject to the preceding chapter, which, if done or omitted to be done by any director or officer thereof, or any receiver, trustee, lessee, agent, or person acting for or employed by such corporation, would constitute a misdemeanor under said chapter or under sections 41, 42, or 43, shall also be held to be a misdemeanor committed by such corporation, and upon conviction thereof it shall be subject to like penalties as are prescribed in said chapter or by sections 41, 42, or 43, with reference to such persons, except as such penalties are herein changed. The willful failure upon the part of any carrier subject to said chapter to file and publish the tariffs or rates and charges as required by said chapter, or strictly to observe such tariffs until changed according to law, shall be a misdemeanor, and upon conviction thereof the corporation offending shall be subject to a fine of not less than $1,000 nor more than $20,000 for each offense; and it shall be unlawful for any person, persons, or corporation to offer, grant, or give, or to solicit, accept, or receive any rebate, concession, or discrimination in respect to the transportation of any property in interstate or foreign commerce by any common carrier subject to said chapter 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 chapter, or whereby any other advantage is given or discrimination is practiced. Every person or corporation, whether carrier shipper, who shall,10 knowingly, offer, grant, or give, or solicit. accept, or receive any such rebates, concession, or discrimination shal be deemed guilty of a misdemeanor, and on conviction thereof shal 8 1 Paragraph numbered by code. 7 "That" in original act at this point omitted by code. 9 "act to regulate commerce and the acts amendatory thereof " in original act instea of "preceding chapter"; changed by code. "acts" in original act instead of "chapter"; changed by code. "this act" in original act instead of "sections 41, 42, or 43"; changed by code. 844 of" added by 1906 act. 7" of" in original act instead of "to"; changed by 1906 act. "act to regulate commerce and the acts amendatory thereto " by 1906 act) in original act instead of “chapter"; changed by code. "whether carrier or shipper" added by 1906 act. 10.46 knowingly" added by 1906 act. (changed to "thereof be punished by a fine of not less than $1,000 nor more than $20,000:11 Provided, That any person, or any officer or director of any corporation subject to the provisions of 12 sections 41, 42, or 43, or of the preceding chapter, or any receiver, trustee, lessee, agent, or person acting for or employed by any such corporation, who shall be convicted as aforesaid, shall, in addition to the fine herein provided for, be liable to imprisonment in the penitentiary for a term of not exceeding two years, or both such fine and imprisonment, in the discretion of the court. Every violation of this section shall be prosecuted in any court of the United States having jurisdiction of crimes within the district in which such violation was committed, or through which the transportation may have been conducted; and whenever the offense is begun in one jurisdiction and completed in another it may be dealt with, inquired of, tried, determined, and punished in either jurisdiction in the same manner as if the offense had been actually and wholly committed therein. (Feb. 19, 1903, c. 708, sec. 1, 32 Stat. 847; June 29, 1906, c. 3591, sec. 2, 34 Stat. 587.) Historical Note This section, consisting in the code of three numbered paragraphs, and secs. 42 and 43 of this title restate the first three sections of the act of Feb. 19, 1903, entitled "An act to further regulate commerce with foreign nations and among the States," known as the Elkins Act. The remaining sections of the act (omitted from the code) follow: "SEC. 4. That all acts and parts of acts in conflict with the provisions of this act are hereby repealed, but such repeal shall not affect causes now pending nor rights which have already accrued, but such causes shall be prosecuted to a conclusion and such rights enforced in a manner heretofore provided by law and as modified by the provisions of this act. "SEC. 5. That this act shall take effect from its passage." This act, in fact although not in terms, was the first important amendment of the act to regulate commerce (ch. 1, this title) subsequent to 1889, and grew out of the difficulties encountered in enforcing provisions of that act. The latter required publication of and adherence to interstate rates, made unjust discrimination by rebating and other devices unlawful, and provided for fine and imprisonment of those violating the provisions of the act (see secs. 2, 6 (7), and 10 (1) of this title). But departure from the tariff rate usually went unpunished, except possibly by a nominal fine, unless there was actual discrimination between shippers. Conviction for unjust discrimination neces "In all convictions occurring after the passage of this act for offenses under said acts to regulate commerce, whether committed before or after the passage of this act, or for offenses under this section, no penalty shall be imposed on the convicted party other than the fine prescribed by law, imprisonment wherever now prescribed as part of the penalty being hereby abolished." in original act instead of "Provided in the discretion of the court."; changed by 1906 act. this act or the act to regulate commerce and the acts amendatory thereof " in original act instead of "sections 41, 42, or 43, or of the preceding chapter"; changed by code. sitated a showing, not merely that a carrier paid a rebate to one shipper, but that it did not pay the same rebate to some other shipper. Moreover, some courts held that sec. 10 did not provide for the indictment of a common carrier when a corporation. It was rarely possible to obtain the required evidence, in many instances because of the reluctance of those in possession of the facts to be instrumental in subjecting an official of a carrier to imprisonment; and, when obtained, it frequently showed that, although less than the tariff rate had been charged, all shippers were charged substantially the same rate so that there was no actual discrimination. (See also the historical note to sec. 46 of this title.) Although the Elkins Act corrected serious defects in the original law and greatly aided the attainment of some of the purposes for which that law was enacted, various devices for evading its provisions were brought into use and the actual payment of rebates as such resumed. The Hepburn Act, June 29, 1906, restored the penalty of imprisonment, which had been eliminated by the Elkins Act, and made the changes shown by the footnotes to pars. (1) and (2) and by the text of par. (3) of this section. (See preliminary historical note to chapter 1 of this title for provisions of the 1906 act and the joint resolution of June 30, 1906, relating to repeal of conflicting laws and the effective date of the changes.) |