Wight v. United States

Section 2 of the interstate commerce act reads:

'That if any common carrier subject to the provisions of this act shall, directly or indirectly, by any special rate, rebate, drawback, or other device, charge, demand, collect, or receive from any person or persons a greater or less compensation for any service rendered, or to be rendered, in the transportation of passengers or property, subject to the provisions of this act, than it charges, demands, collects, or receives from any other person or persons for doing for him or them a like and contemporaneous service in the transportation of a like kind of traffic under substantially similar circumstances and conditions, such common carrier shall be deemed guilty of unjust discrimination, which is hereby prohibited and declared to be unlawful.' 24 Stat. 379.

Sections 10 of the act, as amended by the act of March 2, 1889 (25 Stat. 855), makes the violation of any of the provisions of the act a misdemeanor and subject to punishment. On October 8, 1894, an indictment was found in the district court of the United States for the Western district of Pennsylvania charging the defendant with a violation of said section 2. The trial resulted in a verdict and judgment against him, to reverse which this writ of error was sued out.

In their brief his counsel make this statement of facts:

'The undisputed facts proved in evidence are as follows: F. H. Bruening was engaged during the year 1892 in the business of a wholesale dealer in beer in the city of Pittsburg. He purchased his beer in Cincinnati, in car-load lots, from the Moerlein Brewing Company, of that city. Bruening's place of business was situated on the track of the Pittsburg, Cincinnati & St. Louis Railroad Company, known as the 'Panhandle,' and had a siding connection with that road, so that Mr. Bruening could ship his beer from Cincinnati over the Panhandle Railroad, and have it delivered and unloaded directly into his warehouse. The rate by the Panhandle Railroad for this service from Cincinnati to the warehouse was fifteen cents per hundred pounds. The station of the Baltimore & Ohio Railroad Company in Pittsburg was at some distance from Bruening's warehouse, and there was no track connection between the Baltimore & Ohio Railroad and the warehouse, so that, if Bruening shipped his beer from Cincinnati by the Baltimore & Ohio route, it was necessary to haul it in wagons from the Baltimore & Ohio station to the warehouse. The rate charged by the Baltimore & Ohio route between Cincinnati and Pittsburg on beer in car loads was likewise fifteen cents per hundred pounds.

'In the month of June, 1892, agents of the Baltimore & Ohio Railroad Company, subordinate to the plaintiff in error, made an arrangement with Mr. Bruening by which it was agreed that, if Bruening would ship his beer via the Baltimore & Ohio route from Cincinnati to Pittsburg, the railroad company would make the same delivery at the door of his warehouse that was made by the Panhandle Railroad; that is to say, the railroad company would haul the beer from its station to Bruening's warehouse without extra charge. When, afterwards, it was found that the cost to the railroad company for this hauling would be 3 1/2 cents per hundred pounds, Bruening offered to do the hauling himself for that price, and his offer was accepted. This arrangement was reported to the plaintiff in error by his subordinates, approved by him, and continued in effect during the months of June, July, August, and September, 1892. During these months, Bruening made large shipments of beer in car loads via the Baltimore & Ohio route, paid the charge of fifteen cents per hundred pounds on delivery, hauled the beer from the station to his warehouse, and at the end of each month presented and collected a bill for three and one-half cents per hundred pounds for the hauling. At the trial there was no question made of the good faith of the arrangement with Bruening. It was not questioned that the three and one-half cents was the fair cost of the hauling; that the sole object of the arrangement was to make the same delivery which was made by the Panhandle Railroad, and at the same charge of fifteen cents per hundred pounds.

'During the continuance of this arrangement with Bruening, as shown in the evidence, the Kaufman Brewing Company, of Cincinnati, made several shipments of beer in car loads by the Baltimore & Ohio route, on bills of lading in the form shown at pages 73, 74, and 75 of the record. Each of these shipments was consigned to the 'Kaufman Brewing Company, care of, or notify, Henry Wolf, Pittsburg, Pa., to order of shipper,' and was taken at the fifth-class rate of fifteen cents per hundred pounds, as shown on the face of the bill. Henry Wolf was a wholesale dealer in beer in Pittsburg, whose warehouse was near the station of the Baltimore & Ohio Railroad Company, but was not connected by track with any railroad. The bills of lading for the Kaufman Brewing Company's shipments were transmitted through bank, with draft attached, and Mr. Wolf testified that, after he received notice from the railroad company of the arrival of each shipment, he went to the bank and paid the draft, received the bill of lading, and, on presenting it and paying fifteen cents per hundred pounds, received the beer, which he hauled to his warehouse at his own expense.'

Hugh L. Bond, for plaintiff in error.

Asst. Atty. Gen. Whitney, for the United States.

Mr. Justice BREWER, after stating the facts in the foregoing language, delivered the opinion of the court.