Page:United States Reports, Volume 209.djvu/84

 58 OCTOBER TERM, 1907. Argument for Petitionera 209 U. S. without determining whether a shipper honely paying a reduced rate in the belief that it is the publishad rate is liable under the statute, he/d that shippers who pay such a rate with full knowledge of the pub- lished rate, and contend that the{ have a right so to do, commit the offense prohibited by the Elkins Act, and are subject to te penalties provided therein, even though their contention he a mistake of law. TaR facts are stated in the opinion. Mr. Frank Hooerrnan and Mr. J. C. Cow, n, with whom A. R. Urion, Mr. Henry Veeder and Mr. M. W. Borders were on the brief, for petitioners: A shipper can be guilty of an offense under the Elkins Act only if and when he is guilty of some bad faith or fraudulent conduct in using some kind of device intentionally dishonest or some underhand method of obtaining a rebate, concession or discrimination. It was never inended that he should be held guilty if he honestly believed he was entitled to the rate at which he openly shipped. The purpose of the' Elkins Act was to enlarge the character of devices specified in the act of 1889, and it should have read into it the language of the act of 1889 by making willfulness and knowledge essential elements. Otherwise the statute is incomplete and to be sustained at all must be read in the light of the common law, leaving the court to infer that the legislative intent was only to create guilt on the part of the shippe if he knew of the published tariff and then by some device obtained a concession thereunder. See United States v. Carll, 105 U.S. 611; United States v. Mwautcee Rerigeralor Traneit Co., 142 Fed. Rep. 247, 251, 252. The word "device" cannot be taken from the statute, for it is a word of well-defined legal meaning, the trial judge having adopted that given by Webster. See A. & E. Enc. Iaw (2d ed.), 448; 1 Bouvier's Law Dictionary (Rawle's Revision); Black's Law Dictionary; Potter v. State, 27 Arkansas, 362; State v. Blackstone, '115 Missouri, 427. Not only was it necessary for the shipper to use some device,

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