ties, in addition to the carrier, all persons interested in or affected by the rate, regulation, or practice under consideration, and inquiries, investigations, orders, and decrees may be made with reference to and against such additional parties in the same manner, to the same extent, and subject to the same provisions as are or shall be authorized by law with respect to carriers.

[Proceedings to enjoin or restrain departures from published rates or any discrimination prohibited by law against carriers and parties interested in traffic.] Sec. 3. That whenever the Interstate Commerce Commission shall have reasonable ground for belief that any common carrier is engaged in the carriage of passengers or freight traffic between given points at less than the published rates on file, or is committing any discriminations forbidden by law, a petition may be presented alleging such facts to the circuit court of the United States sitting in equity having jurisdiction; and when the act complained of is alleged to have been committed or as being committed in part in more than one judicial district or State, it may be dealt with, inquired of, tried, and determined in either such judicial district or State, whereupon it shall be the duty of the court summarily to inquire into the circumstances, upon such notice and in such manner as the court shall direct and without the formal pleadings and proceedings applicable to ordinary suits in equity, and to make such other persons or corporations parties thereto as the court may deem necessary, and upon being satisfied of the truth of the allegations of said petition said court shall enforce an observance of the published tariffs or direct and require a discontinuance of such discrimination by proper orders, writs, and process, which said orders, writs, and process may be enforceable as well against the parties interested in the traffic as against the carrier, subject to the right of appeal as now provided by law. It shall be

[Such proceedings shall not prevent actions for recov-
ery of damages or other action authorized by act to
regulate commerce or amendments thereof.]

the duty of the several district attorneys of the United States, whenever the Attorney-General shall direct, either of his own motion or upon the request of the Interstate Commerce Commission, to institute and prosecute such proceedings, and the proceedings provided for by this Act shall not preclude the bringing of suit for the recovery of damages by any party injured, or any other action provided by said Act approved February fourth, eighteen hundred and eighty-seven, entitled "An Act to regulate commerce" and the Acts amendatory thereof. [Compulsory attendance and testimony of witnesses and production of books and papers.]

And in the proceedings under this Act and the Acts to regulate commerce the said courts shall have the power to compel the

attendance of witnesses, both upon the part of the carrier and the shipper, who shall be required to answer on all subjects relating directly or indirectly to the matter in controversy, and to compel the production of all books and papers, both of the carrier and the shipper, which relate directly or indirectly to

[Immunity to testify witnesses.]

such transaction; the claim that such testimony or evidence may tend to criminate the person giving such evidence shall not excuse such person from testifying or such corporation producing its books and papers, but no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he may testify or produce evidence, documentary or otherwise, in such proceed[Expediting Act of Feb. 11, 1903, to apply in cases prosecuted under direction of attorney-general in name of Interstate Commerce Commission.]

ing: Provided, That the provisions of an Act entitled "An Act to expedite the hearing and determination of suits in equity pending or hereafter brought under the Act of July second, eighteen hundred and ninety, entitled 'An Act to protect trade and commerce against unlawful restraints and monopolies,' 'An Act to regulate commerce,' approved February fourth, eighteen hundred and eighty-seven, or any other acts having a like purpose that may be hereafter enacted, approved February eleventh, nineteen hundred and three," shall apply to any case prosecuted under the direction of the Attorney-General in the name of the Interstate Commerce Commission.

[Conflicting laws repealed.]

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.

§ 423. The enactment and amendments to the act.—This act, approved February 19, 1903, and known as the Elkins Act, made a very substantial amendment to the penal provisions of section 10, as well as to sections 6 and 2 of the act. First, in abolition of the penalty of imprisonment, which however, was restored by the amendment of the Hepburn Act of 1906. Second, in making the railroad corporation itself liable to prosecution in all cases where the officers or agents were liable under original act, the officers and agents continuing to be liable as theretofore; third, in making the published tariff the standard of lawfulness and any departure therefrom declared to be a

misdemeanor; fourth, the jurisdiction of prosecutions of offenses under this act is given to any court of the United States having jurisdiction of crimes within the district within which the violation was committed, or through which the transportation may have been conducted; and fifth, in construing and enforcing the provisions of the act, the violation thereof by any person acting for or in the employ of any carrier, acting within the scope of his employment, is in every instance to be deemed the act and offense of such carrier.

Under the Hepburn act of 1906, this section was amended so as to restore the penalty of imprisonment; so now the penalties of both fine and imprisonment are imposed on both carrier and shipper and a penalty of a three-fold forfeiture of the amount of rebate is superadded to the carrier, these changes made by the act of 1906 being shown in the bracket insertions.

It was held in Illinois v. Terminal R. Co. (Dist. Ct. of Illinois, 1909), 168 Fed. 546, that under this Elkins Act the penalty for failure on the part of any carrier of not publishing and filing its rates is as severe as the penalty for not strictly observing such rates after filing, and the defendant though operating a terminal railroad entirely within the state was held subject to the act, as it was engaged in interstate commerce and was convicted of moving cars in interstate commerce where it had not filed its rates covering such services.

§ 424. The repealing clause of the Hepburn Act did not bar prior offenses.-The general repealing clause of the act of 1906, "repealing all acts and parts of acts in conflict therewith," did not release any penalty under the then existing statute. Great Northern R. R. Co. v. United States, 208 U. S. 452, 52 L. Ed. 567 (1908), affirming 155 Fed. 945, and 151 Fed. 84. See also United States v. N. Y. C. & H. R. R. Co., 13 Fed. 630 (W. D. of N. Y.) and an indictment alleging that the carrier unlawfully and willfully gave rebates, following the language of the original Elkins Act, was sufficient, though under the Hepburn Act it was necessary to allege that the rebates were "given knowingly." United States v. D. L. & W. R. R. Co. (C. C. A. second district), 152 Fed. 269 (1907).

The payment of a rebate after the passage of the Elkins Act, paid upon shipments of property transported prior to that enactment is covered by the act. N. Y. C. & H. R. R. Co. v.

United States, 212 U. S. 500, 53 L. Ed. 624 (1909), affirming 146 Fed. 298.

§ 425. The validity and enforcibility of the act. The sixth amendment to the constitution is not violated by the provision of the act whereunder the offense of obtaining an interstate transportation of goods at less than the carrier's published rate may be tried in any Federal District through which the transportation was conducted. Armour Packing Co. v. United States, 209 U. S. 56, 52 L. Ed. 681 (1908), affirming 153 Fed. 1. The taking of a rebate is a continuing crime which may run through several jurisdictions. In this case the carrier obtained a through bill of lading from Kansas City to Christiana, Norway. The offense was held properly prosecuted in the western district of Missouri through the actual shipment and contract was made in Kansas City, Kansas.

Neither is due process of law violated by the provision of the act whereunder the commission by corporate officers acting within the scope of their employment of criminal violation of the act is imputed to the corporation, the court saying that if the position invalidated such a provision as to individual carriers, if there were such, it did not affect the validity of the act as to corporate carriers, and that both the corporation and its agents may be joined in one indictment. N. Y. C. & H. R. R. Co. v. United States, 212 U. S. 481, 53 L. Ed. 613 (1908), affirming 146 Fed. 298. And in the Armour Packing case it was also held that it was immaterial that the shipment was under a through bill of lading to a foreign port, and that the act was not violative of the Constitution forbidding the levying of export taxes, nor did it give preference to the ports of one State over another.

§ 426. Participation in a joint rate.-A carrier is bound by a published rate in which it participates, though it was filed by the initial carrier. The supreme court said that this distinction was immaterial in view of the concluding part of sec. 1, which was evidently enacted with the view to meet the various situations developed wherein a joint rate was established binding up all who are parties and filed by one of the participating carriers. U. S. v. N. Y. C. & H. R. R. Co., 212 U. S. 509, 53 L. Ed. 629 (1909), reversing 157 Fed. 209; U. S. v. N. Y. C. & H. R. R. Co., 212 U. S. 509, reversing 157 Fed. 293.

Where there is no joint rate over the connecting lines published and filed, the lawful rate to charge is the sum of the local rates; and where there are joint rates filed and several local rates, the lawful rate is the sum of the joint rate filed plus the local rates. C. B. & Q. R. Co. v. United States, 157 Fed. 830 (C. C. A. of eighth circuit (1907). It was held in this case that no formal contract was necessary to bring the carrier within the provisions of the law, and that the acceptance by the initial carrier of a through shipment at less than the lawful rates is not made lawful by the fact that such carrier had a contract with a connecting carrier whose line formed a part of the through route; and that the latter would not increase this rate during a certain time, and on the faith of such a contract, made a similar contract with the shipper; and in the meantime the connecting carrier had not in fact published and filed with the commission a new schedule increasing the rate. But it was held in a suit against a shipper, United States v. Wood et al., 145 Fed. 405 (Dist. Ct. of Pa., 1906), that it is not made a criminal offense to receive a rebate from a joint rate unless the rate has been both filed and published, though it was unlawful for a carrier to grant a rebate from a joint tariff rate which it had filed and published and in which it participated when filed and published by another carrier. The participation by a carrier by water on the great lakes in a through bill of lading did not make that a lawful rate as against the shipper, so as to subject him to prosecution for a concession therefrom to him by such carrier. Camden Iron Works v. U. S., 158 Fed. 561 (1908), C. C. A. third circuit.

§ 427. The unit of offense under the act. The Standard Oil Co. of Indiana Case. The act penalizes the acceptance of a rebate by the shipper as well as the payment of a rebate by the carrier. It provides that when a carrier files a rate with the commission and participates in any rate so filed and published, that rate in any prosecution against the carrier shall be deemed to be the legal rate. In a prosecution against the shipper it must be shown that the tariffs were published at least in the office of the railroad company where the shipments were received. In the prosecution against the Standard Oil Company of Indiana it was held in the trial court that each carload shipment, made at the illegal rate where the public rate was in car