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were known to plaintiffs at the time of the shipment alleged in the complaint, or that the contract between the plaintiffs and defendants was not made with full knowledge of the rates paid by the corporations mentioned; no allegation of any protest by the plaintiffs against the rates charged to them, or demand that the services be rendered for the same prices charged to the other corporations, and so far as appears by the complaint, the amounts paid by plaintiffs for the services rendered may have been paid by them with full knowledge of all the facts, and under a special contract with the defendant based on those facts.- Langdon v. N. Y. L. E. & W. R. Co., 9 N. Y. Supp. 245; affd. on other points, 58 Hun (N.Y.), 122, 11 N. Y. Supp. 514.

In an action against a carrier for unjust discriminations, it is not necessary to state each instance of discrimination as a separate cause of action.-Cohn v. St. L. I. M. & S. R. Co., 181 Mo. 30, 79 S. W. 961.

In an action by a shipper to recover overcharges, etc., it is not necessary that the complaint should set forth the exact date of shipments by plaintiff, the dates and times defendant had given a lower rate to other shippers, etc., as defendant could ask for a bill of particulars.— Hilton L. Co. v. Atlantic C. L. R. Co., 141 N. C. 171, 53 S. E. 823.

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To establish discriminations in rates resulting from putting in the same classification articles of the same general character, there must be preponderating proof in favor of the complainant.- Globe-Wernicke Co. v. B. & O. S. R. Co., 11 Inters. Com. R. 156.

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When a shipper alleges that the allowance of lower rates on carload than less than carload lots constitutes descrimination, the burden of proof is on the complainant.- Brownell v. Columbus & C. M. R. Co., 4 Inters. Com. R. 285, 5 I. C. C. R. 638.

Where no discrimination is alleged, either as between different points of production tributary to the same market, or on account of disproportionate rates on different kinds of traffic similar in character and volume, the burden is on the complainant of showing affirmatively that the rates charged are excessive.— Lincoln Creamery Co. v. U. Pac. R. Co., 3 Inters. Com. R. 641, 794, 5 I. C. C. R. 156.

Goods in the same classification are presumtively entitled to equal rates, and the burden is on the carrier of justifying any disparity.McMorran v. Grand Trunk R. Co., 2 Inters. Com. 604, 3 I. C. C. R. 252.

No presumption arises that a rate is reasonable from the mere fact that it has been put into effect, and when it is prima facie disproportionate or relatively unequal, the burden is on the carrier to justify its charges when challenged on those grounds.- McMorran v. Grand Trunk R. Co., 2 Inters. Com. R. 604, 3 I. C. C. R. 252.

In departing from the mileage basis of rates, as between the several branches of its road, a carrier is not making conclusive evidence that it is discriminating, but the burden is in the company to justify such departures when the rates are disputed.- Logan v. Ch. & N. W. R. Co., 2 Inters. Com. R. 14, 19, 431, 2 I. C. C. R. 604.

In an action by a shipper to recover for discriminations in charges, the burden is on plaintiff to establish such discriminations by the greater weight of evidence.- Hilton L. Co. v. Atlantic C. L. R. Co., 141 N. C. 171, 53 S. E. 823.

To recover for discrimination in rates in violation of a statute prohibiting discrimination in charges for transportation from the same place and "upon like conditions," the burden is upon the plaintiff to show that the conditions were alike.-State v. So. R. Co., 125 N. C. 666, 34 S. E. 527.

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In an action by a shipper to recover overcharges, it is competent to prove the rates charged others for transportation on other branches of the road, where conditions were substantially similar.- Hilton L. Co. v. Atlantic C. L. R. Co., 141 N. C. 171, 53 S. E. 823.

In an action by a shipper to recover overcharges, etc., otherwise relevant testimony is inadmissible, for purposes of comparison, when it relates to an interstate shipment. - Hilton L. Co. v. Atlantic C. L. R. Co., 141 N. C. 171, 53 S. E. 823.

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An unliquidated, unexplained and indefinite claim for damages for a tort, which though put forward, has never been pressed, is no defense to an action against a carrier for discriminations in rates.- Union Pac. R. Co. v. Goodridge, 149 U. S. 680, 13 Sup. Ct. R. (U. S.) 970, affg. s. c. 37 Fed. 182

In an action against a carrier, the carrier pleaded as a defense a contract for a refund in case the favored shipper furnished a certain amount of transportation It did not allege and show that such an amount was furnished. The defense was held ineffectual.— Union. Pac. R. Co. v. Goodridge, 149 U. S. 680, 13 Sup. Ct. (U. S.) 970, affg. s. c. 37 Fed. 182.

In an action by a shipper against a carrier for damages for unjust, unreasonable and discriminatory charges, under the Interstate Commerce Act, the plaintiff must show that the rate charged was unreasonable according to the provisions of the Act. It is therefore a good defense in such an action to show that the charges complained of were in accordance with the schedule of rates adopted, printed and kept

posted by the carrier, pusuant to the Act. The Act provides the sole standard by which it may be determined whether a given rate is reasonable or unreasonable within the meaning of the Act.- Van Patten v. Ch. M. & St. P. R. Co., 81 Fed. 545.

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How damages to shipper by discriminations in freight rates should be computed. Greisser v. McIlrath, 13 Fed. 373.

In an action for damages by a shipper against a railway, because of discriminations, etc., forbidden by the state railroad commission, exemplary damages may be recovered, if it appears that the act of the company was a willful violation of the law."— Augusta Brokerage Co. v. Central of Ga. R. Co., 121 Ga. 48, 48 S. E. 714.

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[89] Criminal liability - In general.

Prosecution for giving free transportation,- see post, § 33, note [17].

The Elkins Act making it unlawful for a shipper to receive any rebate or concession by any device whatsoever is not confined in its application to cases where the devices used are fraudulent, but refers to any methods whereby a concession is received.- Armour Packing Co. v. U. S., 209 U. S. 56, 28 Sup. Ct. R. (U. S.) 428, affg. s. c. 153 Fed. 1.

There is no provision of the Elkins Act excepting special contracts from its operation.- Armour Packing Co. v. U. S., 209 U. S. 56, 28 Sup. Ct. R. (U. S.) 428, affg. s. c. 153 Fed. 1.

The mere fact that a defendant is a stockholder in a corporation which receives rebates does not subject him to criminal liability.— U. S. v. Wood, 145 Fed. 405.

The fact that a shipper who contracts for and receives a rebate, personally derives no benefit therefrom, but turns the same over without consideration to another, does not relieve him from criminal liability.U. S. v. Wood, 145 Fed. 405.

A rebating arrangement was made by the assistant general freight agent. The local freight agent and the agent who made out the bills of lading, knew that there was something unusual and out of the ordinary course of business in such shipments.- Held, that this was not sufficient notice to them to make them criminally liable.-U. S. v. Mich. Cent. R. Co., 43 Fed. 26.

Where it is shown that certain companies refused to handle the grain from one elevator upon the same terms that they handled grain from other elevators, their acts being in accordance with contracts between

said companies, in order to render the companies liable for a conspiracy, they must have contemplated discriminating against such elevator owner when they entered into those agreements.- Kellogg v. Sowerby, 190 N. Y. 370, 83 N. E. 47, revg. s. c. 114 App. Div. (N. Y.) 916, 100 N. Y. Supp. 1123.

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Intent as element of offense,- see ante, note [17].

An indictment of a shipper for receiving and accepting an unlawful concession from a railroad need not allege payment of the unlawful rate, as prima facie the offense is consummated when the property is transported at the unlawful rate.-U. S. v. Vacuum Oil Co., 158 Fed.

536.

A rebate is given and accepted only when the amount thereof is paid. -U. S. v. Gt. Northern R. Co., 157 Fed. 288.

In 1902, prior to the passage of the "Elkins Act" (U. S. Comp. St. Supp. 1907, p. 880; 32 Stat. 847), an agreement was entered into between a shipper and a carrier whereby a certain portion of the published rate was to be refunded. In 1904, subsequent to the passage of that act, the rebate was actually given.-Held, that an indictment under the Elkins Act for giving an unlawful rebate was proper.-U. S. v. Gt. Northern R. Co., 157 Fed. 288.

Under the Elkins Act of Feb. 19, 1903, it is not a criminal offense to receive a rebate from a joint rate unless such rate has been both filed and published.-U. S. v. Wood, 145 Fed. 405.

When a statute prescribes a penalty for "willful" discriminations by railroads, it is implied that the act must be done knowingly or intentionally. Woodhouse v. Rio Grande R. Co., 67 Tex. 416, 3 S. W. 323.

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Each unlawful shipment a separate offense.

Where there are several shipments at a rate less than the legal rate, each shipment is a distinct offense, and the whole transaction does not constitute one continuing offense.-U. S. v. Vacuum Oil Co., 158 Fed. 536; U. S. v. Cent. Vt. R. Co., 157 Fed. 291.

If the offense charged against a railroad is the payment and acceptance of rebates, each substantial payment is properly the subject of a separate indictment or count.— U. S. v. Gt. Northern R. Co., 157 Fed. 288.

Under the Elkins Act of Feb. 19, 1903 (ch. 708, 32 Stat. at L. 847, U. S. Comp. Stat., Supp. 1905, p. 599), each shipment at less than the lawful rate is a separate offense, and where the published rate is on

carload lots, each car is a separate shipment.-U. S. v. Standard Oil Co., 155 Fed. 305.

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Necessity for action by commission.

Section 3 of the Elkins Act, approved Feb. 19, 1903, provides a remedy in court without going before the Interstate Commerce Commission, for any discriminations or preferences forbidden by the Interstate Commerce Act.- Interst. Com. Commission v. Ch. Gt. W. R. Co., 141 Fed. 1003.

A motion was made to dismiss an indictment for unjust discrimination on the ground that the State Commission had filed no information or complaint against the defendant.-Held, that the statute is self-operating, and the grand jury may act wholly independent of the Commission.- Commonwealth v. L. & N. R. Co., 112 Ky. 75, 23 Ky. L. R. 1382, 65 S. W. 158.

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A shipper charged with having received a rebate from the published rate is not entitled to prove that another carrier has a published rate as low as that which defendant received by means of the rebate.— U. S. v. Standard Oil Co., 155 Fed. 305.

Sufficiency of information and admissibility of evidence, in prosecutions under the Elkins Act for receiving rebates.-U. S. v. Camden Iron Works, 150 Fed. 214.

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Indictments for failure to charge the published rate,- see post, § 33, note [10].

An indictment of a shipper under the Elkins Act for receiving a concession from the published rate is not insufficient for failing to allege by what particular device the concession was obtained where it clearly charges every element of the offense and distinctly advises the defendants of what he is to meet at the trial.- Armour Packing Co. v. U. S., 209 U. S. 56, 28 Sup. Ct. R. (U. S.) 428, affg. s. c. 153 Fed. 1.

An indictment against a shipper for receiving a preference in the carriage of goods between two points is not invalid because it fails to charge the particular route over which the goods were transported.— U. S. v. Vacuum Oil Co., 158 Fed. 536.

An indictment under Elkins Act, § 1, charged that in pursuance to an agreement between a shipper and the defendant railroad, certain goods were transported at less than the tariff rates, such result being accomplished by an agreement for rebates from the legal tariff. The indictment also stated that the Missouri Pacific R. Co., whose line formed part of the through route over which the goods were shipped, filed

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