98. Bonus for locating plant adjacent to carrier's line.-A contract between a packing house company and a stock yard company whose lessee operated a railroad subject to the act, under which the stock yard company agreed to pay to the packing house company a bonus for locating a proposed plant adjacent to the yards of the stock yard company instead of in another city, and whereby the packing house company undertook to use and pay for the facilities of the stock yard company in connection with all livestock packed by it, constituted an undue preference and advantage and an unlawful discrimination.-United States v. Union Stock Yard & Transit Co. of Chicago, 226 U. S. 286, 57 L. ed. 226, 33 Sup. Ct. Rep. 83, modifying 192 Fed. 330.

100. - Extension of credit to shipper. A railroad company practices unlawful discrimination in respect to transportation, in violation of sec. 6 of the interstate commerce act, as amended by the Hepburn Act (U. S. Code, title 49, sec. 6), by systematically extending credit for freight charges to one interstate shipper, and accepting its notes for part of freight charges, while exacting and collecting such charges in cash from other shippers under substantially similar circumstances and conditions.-United States v. Hocking Valley Ry. Co., 194 Fed. 234, affirmed, Hocking Valley Ry. Co. V. United States, 210 Fed. 735, certiorari denied, 234 U. S. 757, 58 L. ed. 1579, 34 Sup. Ct. Rep. 675.

101. Loan to shipper.-When a railroad, through a subsidiary, borrows money at 4 per cent interest, and loans it to a shipper at 2 per cent interest

upon condition that the shipper would route all its interstate shipments of coal over the carrier's line, and agree to sell coal to the railroad, the arrangement is a forbidden subterfuge to cover an unlawful rebate.-Vandalia R. Co. v. United States, 226 Fed. 713, certiorari denied, 239 U. S. 642, 60 L. ed. 482, 36 Sup. Ct. Rep. 163.

Waiver of interest charges on certificates of indebtedness SO that a shipper receives a valuable offset against the published rates, is in violation of the act.-Rates for Transportation of Anthracite Coal, 35 I. C. C. 220.

102. Lease to shipper at inadequate rental.-A lease of property by a railroad to a shipper at a nominal or inadequate rental, with a view to induce shipment of goods over the carrier's lines, amounts to an unlawful concession to the shipper-lessee, in violation of the act.-Cleveland, C., C. & St. L. Ry. Co. v. Hirsch, 204 Fed. 849; Central of Georgia Ry. Co. v. Blount, 238 Fed. 292; United States v. Northern Pac. Ry. Co., 18 Fed. (2d) 229; In re Leases and Grants by Carriers to Shippers, 73 I. C. C. 671; Rates for Transportation of Anthracite Coal, 35 I. C. C. 220.

Waiver by a carrier of royalties for use of coal land leased by it to shipping interests is a violation of the act.-Northern Central Ry. Co. V. United States, 241 Fed. 25.

Allowances made by the lessee of a railroad to the lessor, a coal mining company, on shipments made by the lessor, are illegal rebates.--Central R. Co. of New Jersey v. United States, 229 Fed. 501, certiorari denied, 241 U. S. 658, 60 L. ed. 1225, 36 Sup. Ct. Rep. 446.

105. - Preference in shipment.An embargo, laid by a railroad at the request of a paper company, against the delivery to shippers of cars for interstate consignments which the paper company was under obligation to receive, was in violation of the Hepburn Act.-Menasha Paper Co. v. Chicago & N. W. Ry. Co., 241 U. S. 55, 60 L. ed. 885, 36 Sup. Ct. Rep. 501, affirming Chicago & N. W. Ry. Co. v. Menasha Paper Co., 159 Wis. 508.

Misrepresentation by a shipper to a carrier whereby preference is obtained in the shipment of coal, in defiance of a service order of the Interstate Commerce Commission, constitutes a violation of the act.-United States v. P. Koenig Coal Co., 270 U. S. 512, 70 L. ed. 709, 46 Sup. Ct. Rep. 392, reversing 1 Fed. (2d) 738; United States v. Michigan Portland Cement Co., 270 U. S. 521, 70 L. ed. 713, 46 Sup. Ct, Rep. 395. Compare Avent v. United States, 266 U. S. 127, 69 L. ed. 202, 45 Sup. Ct. Rep. 34, sustaining conviction on plea of guilty to indictment charging shipper with fraudulent inducement of carrier to transport coal in violation of the commission's service order.

Discrimination by a railroad agent in charge of coal car distribution, in favor of one mine, primarily for his own personal profit, is unlawful.-Dye v. United States, 262 Fed. 6.

106. - Knowing undervaluation of property by shipper.-Knowing undervaluation of property by a shipper for the purpose of procuring a lower rate, under the published tariff, without the knowledge of the carrier, constitutes a forbidden device.-Missouri, K. & T. Ry. Co. v. Harriman, 227 U. S. 657, 57 L. ed. 690, 33 Sup. Ct. Rep. 397, reversing 128 S. W. 932 (Tex. Civ. App.), affirmed, on this point, United States v. P. Koenig Coal Co., 270 U. S. 512, 70 L. ed. 709, 46 Sup. Ct. Rep. 392, reversing 1 Fed. (2d) 738.

which had been filed by a carrier and not formally canceled, such rate, however, having been superseded by a higher joint rate applicable between the same points, which also was filed and became the only lawful rate, conIstituted a device to grant a rebate.Waters Pierce Oil Co. v. United States, 222 Fed. 69.

108.-Unauthorized application of transit rates.-The substitution at a transit point of one article for another, when not specifically authorized by the tariff, is an unlawful device.American Creosoting Co. v. Director General, 61 I. C. C. 145, order of commission set aside, on other grounds, Central R. Co. of New Jersey v. United States, 257 U. S. 247, 66 L. ed. 217, 42 Sup. Ct. Rep. 80.

The issuance by agents of a railroad at Richmond, Va., of transfer slips which falsely conveyed to the connecting lines the statement that the shipments had originated at points beyond Richmond instead of at that point, to obtain a division of a through rate from a fictitious point of origin, is an unlawful device.-In re Rates, Practices, and Accounts of Carriers, 13 I. C. C. 212.

109. Not necessary means be covered by tariff.-The Elkins Act does not require a published and filed tariff as to any other advantage or discrimination than a rebate. When the offense is a rebate, as that term is usually understood, a published tariff is necessary to constitute the standard, departure from which is a crime. When the tariff is complied with but a concession is made or advantage granted not specifically measured in dollars and cents, reference to a published tariff is unnecessary. (Reviewing cases in which advantages, discriminations, or concessions were held to be unlawful, without reference to the tariff rates.)-United States V. Michigan Portland Cement Co., 270 U. S. 521, 70 L. ed. 713, 46 Sup. Ct. Rep. 395,

standing.-United States v. Bunch, 165 Fed. 736.

The receipt of discrimination or concession in transportation service falls within the criminal provisions of the Elkins Act, although procured by misrepresentations, and granted without knowledge or connivance of the carrier.-United States v. Metropolitan Lbr. Co., 254 Fed. 335, distinguishing United States v. New York Central & H. R. R. Co., 146 Fed. 298, affirmed, New York Central & H. R. R. Co. v. United States, 212 U. S. 481, 53 L. ed. 613, 29 Sup. Ct. Rep. 304, where it was held that the offense of rebating under sec. 10 of the interstate commerce act, prior to its amendment by the Hepburn Act, required the concurrence of two persons, one who gave and one who received the rebate.

Indictment of a carrier sustained without charging that there was in the first place any agreement or understanding that the carrier should transport the goods at any departure or concession from the established rate.Atchison, T. & S. F. Ry. Co. v. United States, 170 Fed. 250, reversing on other grounds, United States v. Atchison, T. & S. F. Ry. Co., 163 Fed. 111.

120. Rebate or concession need not result in discrimination.-Under the interstate commerce act, to establish unjust discrimination it was necessary to prove not only that the favored shipper really paid less than the published rate, but also that other shippers paid the full amount of such rate or a greater rate than that paid by the favored shipper. Under the Elkins Act the standard of comparison is the published rate. It is necessary to prove only that the favored shipper has had his property transported at a lower rate than that published and filed. Chicago & A. Ry. Co. v. United States, 156 Fed. 558, affirming United States v. Chicago & A. Ry. Co., 148 Fed. 646, affirmed by divided court without opinion, Chicago & A. Ry. Co. v. United States, 212 U. S. 563, 53 L. ed. 653, 29 Sup. Ct. Rep. 689.

It is not necessary, before there could be a conviction for discrimination, that there be a finding by the Interstate Commerce Commisssion that such discrimination existed, or that discrimination could be found to exist only where evidence was offered that other shippers had asked for and been denied the same treatment as was accorded the favored shipper.-Hocking Valley Ry. Co. v. United States, 210 Fed. 735, affirming United States v. Hocking Valley Ry. Co., 194 Fed. 234, certiorari denied, Hocking Valley Ry. Co. v. United States, 234 U. S. 757, 58 L. ed. 1579, 34 Sup. Ct. Rep. 675.

Compare Delaware, L. & W. R. Co. v. United States, 231 U. S. 363, 58 L. ed. 269, 34 Sup. Ct. Rep. 65, holding it is unnecessary to sustain a conviction for violation of the commodities clause [U. S. Code, title 49, sec. 1 (8)] that there had been any discrimination, or harm to other dealers.

It is no defense to the charge of granting a rebate or concession by refunding to a shipper an unauthorized allowance for elevator charges, that defendant carrier treated all shippers alike.-United States v. Chicago, St. P., M. & O. Ry. Co., 151 Fed. 84, affirmed, Chicago, St. P., M. & O. Ry. Co. v. United States, 162 Fed. 835, certiorari denied, 212 U. S. 579, 53 L. ed. 659, 29 Sup. Ct. Rep. 689.

The Elkins Act against rebating aims to prohibit departure from the tariff rates, irrespective of its actual discriminatory effect. Vandalia R. Co. v. United States, 226 Fed. 713, certiorari denied, 239 U. S. 642, 60 L. ed. 482, 36 Sup. Ct. Rep. 163; Pennsylvania Co. v. United States, 257 Fed. 261.

actions of the shippers constituted a violation, because one court might hold they did and another they did not, or because the reasonableness of the embargoes had not been submitted to and determined by the commission.-United States v. Metropolitan Lbr. Co., 254 Fed. 335.

An agreement by a carrier, to reimburse all shippers bringing a particular commodity to its line, for charges necessary to transport to shipping points and for storage, and for marine insurance if the carrier's rail and water line was used, violated the Elkins Act, and would not be enforced by the courts, as opposed to public policy, although the concessions are offered without distinction or discrimination to all shippers of the commodity.Davis v. Southern Pac. Co., 235 Fed. 731.

121. Nor in personal benefit to the receiver. That a shipper who contracted for and received a rebate personally turned the same over to another without consideration, does not relieve him from criminal liability. United States v. Wood, 145 Fed. 405.

123. Rebate or concession improper means of correcting discrimination or unreasonableness.-See also sec. 3 (1), this title, note 73, Preference or prejudice not justified by advantages in other respects.

That demurrage charges fixed by the rate schedules of interstate railroad companies were unjust or discriminatory as against particular shippers and competitors in other districts, governed by different rates, is no defense to a prosecution of a railroad company or the shipper for granting or receiving a concession by a cancellation of such charges. The only legal mode of correction was by a change in the schedules on proper notice or under authority from the Interstate Commerce Commission.-Lehigh Valley R. Co. v. United States, 188 Fed. 879, affirming United States v. Lehigh Valley R. Co., 184 Fed. 546.

124. Unit of the offense.-Where the railroad made several payments of rebates in accordance with a single agreement therefor, the position that the criminal offense committed was single and continuing against the carrier because of the antecedent agreement is untenable, when the full legal rate was paid upon each of numerous shipments, and on claims presented at short intervals the stipulated amount of rebate was remitted to the shipper. The offense was complete when the carrier thus paid the stipulated rebate to the shipper.-New York Central & H. R. R. Co. v. United States, 212 U. S. 481, 53 L. ed. 613, 29 Sup. Ct. Rep. 304, affirming United States v. New York Central & H. R. R. Co., 146 Fed. 298.

The offense of rebating is complete when the carrier, to whom the shipper has paid the full legal rate, pays over to the shipper, on a claim presented by him, the agreed amount of the rebates.-New York Central & H. R. R. Co. v. United States, 212 U. S. 481, 53 L. ed. 613, 29 Sup. Ct. Rep. 304, affirming United States v. New York Central & H. R. R. Co., 146 Fed. 298.

In a prosecution under the Elkins Act each substantial payment and acceptance of rebates is the substantial offense set out in the indictment, and each substantial payment properly is the subject of a separate indictment or count, although all were pursuant to one agreement for rebates entered into with respect to the entire volume of traffic transported.-United States v. Great Northern Ry Co., 157 Fed. 288, writ of error dismissed on motion, Great Northern Ry Co. v. United States, 214 U. S. 530, 53 L. ed. 1070, 29 Sup. Ct. Rep. 698; followed, United States v. Central Vermont Ry., 157 Fed. 291, holding that where there has been but one payment in settlement for many different shipments, there is but one offense.

The gist of the offense is the receipt of a concession, in respect to the transportation, irrespective of whether the property was train loads, carloads, or