UNITED STATES V. MELLEN.

229

uniformly been held to have reference to the commencement of a term of court, and, if the same principles apply here, it results that a petition of this character should be presented at least 10 days before the commencement of the Sffision appointed for the purpose of hearing cases of applicants for registration. It might be fairly urged that the object of congress in placing the 10-days limit upon the petitioners was to have all parties seasonably notified, to the end that th selection of the supervisors and the scrutiny should be \ in all respects fair. Under the statutes of New Hampshire and of the other states, the hearings before the state boards are to be adjourned from day to day until all claims are heard and decided, and it would seem that a construction of the 10·days limit in the federal statute which would interpose federal supervision at a stage of the proceedings when cases had been partially heard would not be reasonable. Interposition at such a time would cause confusion and delay, and would not be effective in the direction of accomplishing the free and fair results intended by congress. Again, the petition for a part of Rockingham county only, and is for opening the for. the appointment of supervisors in the wards of Portsmouth, a city of less than 20,000 inhabitants, and in no other part of the county; and for this reason, if I were to follow the doctrine of the circuit court in the East St. Louis Case, 28 Fed. Rep. 840, it would result that the petitioners are not within the statute in this respect. These questions are both jurisdictional. They go to the power of the court to act. I do not undertake to decide. either of them, but merely to say that, under the petition, in my opiJ:!ion, jurisdiction is at least doubtful, and I must be governed by the general rule that, where jurisdiction is doubtful, the court should not interfere witb. the official duties. of other lawfully constitute(!. and constitutional bodies, and upon this ground only I am constrained to deny· the request, and to dismiss the petition; and it is so ordered.
UNITED STATES v. MELLEN et a1. (District Court, D, Kansas. November 28, 1892.) No. 3.092.

1.

CARRIERS-INTERSTATE COMMERCE ACT-SHORT HAUL CLAUSE-JOINT AND LOCAL RATES.

Tile long and short haul clause of the interstate commerce act (scction 4) does not apply to a case where the short haul rate is the combined local rates of two connecting lines, and the lower long haul rate is a joint rate made bv the two lines acting together; and an indictment alleging such rates is bad. Railway Co. v. Osborne, 52 Fed. Rep. 912, followed. An indictment alleging that tbe sbare of a joint rate takcn by one company Is less than its local rate for a shorter haul, etc.· is ball. Railway Co. v. Osborne, 52 Fed. Rep. 912, followed. A count of the indictment wherein Kansas City is named as the point for the joint rate, by a typographical error, instead of Topeka, is bad.

2. SAME.

8. SAME.

.... SAME-COLLECTING. AGENT NOT INDICTABLE.

An agent of a railroad, who merely collects freights, and has nothing to do with fixing them. is not indictable. under the interstate commerce act, for collecting a greater rate for a shorter than for a longer banI, etc.

:2&0
bell, ;JhG.'! ;!iltlJ,OO oveJTwed ,jnPltrt.
" I,

gPll:RAL REPORTlm,

vol. 53.

of C., S. ,Mellen,J. 1Al.<Munroe, Camp' S" Barr, for violation of the interOn 'motion to! 'quash. Grarited:inpart, and
,, " '

J;'W,;,AdY U. S. Atty'l.'and ,' k L.: Williams, for derehlIant.
(.

Soper, Mst. U. So At,ty. .

-',:<,.,',

,"

Campbell,J.G.' Woodworth, and W. S Barr, were indicted in this court on'tb.e 27th day of April, 1892, 'for violating the provisions of sectipn4, of the interstate comlJ1erce act, by 'charging more for a, short than for a long haul; it behlg charged in the indictment' thatl,tM, four defendants first named were officers and persons acting for and by the Union Pacific Railway Company, and. were the officers who' had authority to make and establish rates and for the transportation of property and freight over the linesof said companY,'and that W. S. Barr, the last-named defendant, was the agent of said railway company at Salina, a station on its lirie 186 miles Kansas City, Mo. The case is before the court on amotion to quash. The 'first count of, the indictment charges that on the 20th of April, 1891,the UnioiiPacific Railway Company was a common carrier of passengers all.dproperty through and among and between the states and territories of the United States, between the city of Ogden, inllheterritol'y Qf Utah, and the city of Kansas City, :Mo. lt is furtherallegedin,the that upon that day, to wit, the 20th of:Apl'il, theUll.ioil Pacific Railway Company Md entered into an agreement and8.l'rangement with the Southern Pacific Railway CompanY,alsoacommon carrier, (both of which said compantes were then and there subject to the provisions of the act of congress entitled "An act to regulate· commerce,')' establishing a certain joint tariff or rate for the shipment and transportation of refined sugar in car-load lots, by continuous line, upon the railways of the Union Pacific and Southern Pacific from the city of San Francisco, in the state of California, to the city of Kansas City, Mo., and that this joint tariff and rate was in force on the 20th of April, 1891, and that at that time the said joint tariff and charge had been filed with the interstate commission created by the act of congress approved on the 4th day ofdFebruary, 1887; that the rate and price under said joint tariff was 65 cents for each 100 pounds of sugar, in car-load, ldts, transpqned by the 'Union Pacific and Southern Pacific Companies railroads by continuous line and route from San Francisco, CaI., to Kansas City, Mo., and, of the said rate of 65 cents per 100, pounds fixed by said joint rate for the transportation of sugar between the points last mentioned, the Union Pacific received the Sl,lm of 32.4 cents per 100 pounds, and the Southen\: Pacific received 32.6 cents per 100 pounds. It is further charged in the first count of the indictment that the city of Salina, in the district of Kansas, is a station upon the main line of the Union Pacific Railway Company, in Kanl;las, and is located 186 miles west of Kansas City, Mo., and, is a shorter distance from San

"nINER, District Jl}dge.'" ·The defendants, C" S. Mellen, J. A.

UNITED STATES V.

231

Francisco, Cal., by 186 miles, :than Kansas City, Mo. The indictment then proceeds to charge the defendants, Mellen" Munroe, Campbell, and Woodworth, (they being officers authorized to fix and establish rates for the Union Pacific,) with willfully establishing a rate of 94 cents for each 100 pounds of refined sugar, in car-load lots, transported over the lines of the Union Pacific and Southern Pacific RailwaYE\ from San F1'ancisco,Oal., to the city ofSalina,Kan., notwithstanding they had fixed a rate of 65 cents per 100 pounds to the city of Kansas City, Mo., which was a greater distance than the distance to Salina. It is further· alleged that a shipment was made from SanF1'ancisco to the H. D. Lee Mercantile Company, of Salina, Kan., for one car load· of sugar, consisting of 76 barrels, for which the rate of 94 cents per 100 pounds was charged, and that said shipment was made under substantially similar circumstances as the shipments made to Kansas City, Mo., and that lJarr, as the -agent of the company, demanded and collected the said rate, which is alleged to be illegal, and· which had been fixed by the four defendants first above named. . The first count of the charges that a joint rate was established, of 65 cents, from San Francisco, Oa1., to Kansas City, Mo., said rate being established under an agreement or joint traffic arrangement with the Southern Pacific Company. The question now to be determined is whether or not the fact that they charged a higher rate to Salina, which was a shorter distance, is a violation of section 4 of '_he act to regulate commerce. The language of the section is:
"It shall be unlawful for any commou carrier subject to the provisions of this act to charge or receive any greater compensation, in the aggregate, for the transportation of passengers or of like kind of property, under substantially similar circumstances and conditions, for a shorter than for a longer distance over the same line, in the same direction; the shorter being included within the longer distance. II

It will be noted from a careful examination of this section that it applies to each separate common carrier for its violation of the long and short haul clause on its own line. In construing this section, Mr. 'Justice Brewer, in the case of Railway Co. v. Osborne, 52 Fed. Rep. 912, said:
"Where two companies, owning two connecting lines of road, unite in a. joint tariff, they form, for the connected roads, practically a new and independent line. Neither company is bound to adjust its own local tariff to suit the o-ther, nor compellable to make a joint tariff with it. It may insist upon char· its local rates for all transportation over its line. If, therefore, the two companies by agreement make a joint tariff over their lines, or any part of their lines, such joint tariff is not the basis by which the reasonableness of the local tariff of either line is determined. To illustrate: On the defendant's road the ,distance' from Turner to Chicago is 30 miles; on the Lake Shore line, from Chicago to Cleveland is 200 or 300 miles. Defendant company may charge Hi cents for transporting grain the 30 miles from Turner to Chicago, providing that it be in fact only a reasonable charge for the services, although the Lake Shore Company charges no more for transporting it from Chicago to Cleveland: and the fact that the rate on each line is 15 cents for the distance named will not prevent the two companies from making a joint tariff for grain shipped from Turner to Cleveland of 12 cents,-less than the local taritf of either. We do not mean to intimate that the two c9mpanies. or a joint line. can make a tariff from Turner to Cleveland bigber than from Turner to Buffalo, or for any other intermediate pointa between Cleveland and Buffalo; for when the two companies, by their join&

232
tariftl.:m

FEDERAJ.REPORTER,

vaL: 53

neWJ_pd indel)ll!ldent"line" Rnd itldependent, lipe may beand,l\hqrt baul c!lluse. ,But what we mean to decide is a joint line is not by wJ,l,ich tlie separate tariff Of 'eIther IS to be measured or condemned."

first this .indi,c.tmentth.at the · Kan., was a jomt tariff made pursuant to Qetween the .,Union Pacific and Southern Pacific roads. they had It joint tariff to Kansas City, Mo., whic4was.:In fact less, although a longer distance, than the rate chargectto Kan. If the rate charged to Salma was the local rate of each, cj)mpany,---:and the presumption is, in the absence of allega,tioll was a, joint rate, that it was t,he local rate,-and the fact ha4 a joint rate to Kansas City, which constitllted a llewrlfue. would not furnish a bl),sis upon which either companywcWd':.be bound to adjust its own local tariff, but within the in, the decison just. quoted, each might insist upon its local rates. for all transportation over ·. its lines to intermediate points. ' " ., 'fhe l;Iecond of the indictment, charges the facts substantially as set for:ljh.iIi. the first count, alleging the jomt rate between the Union Southern Pacific Railways to .Kansas City, and then cha.rgWg that, notwithstanding the joint rate to Kansas City, for anQ on behalf of the Union Pacific, and receiveQ the price ot alA per 100 pounds for transporting the sugar from.,Ogden, ,Utal), to Salina, Kan. The suggestions as to the first count are equally applicable to the second count. The joint rate. is .made the basis of discrimination. The allegation is that they chaf'ged the local rate from Ogden to which was less than theil: part Qf the joint rate to Kansas City,although Salina was the shorter distance. This I think they may do, for the reasons already suggested. The jomt· rate does not in any sense affect or govern the local rate to intermediate points. While, as stated by lfr. Justice Brewer, the two companies could not make a joint rate from San Francisco to Kansas City which was less than a joint rate from San Francisco to Salina, yet they may make a joint rate Kansas City, Mo., and that fact would not affect the local rate of either company to Salina. The third count of the indictme:Q,t charges the defendants with conspiring and agreeing together to commit an offense against the laws of the United States, in that they charged, collected, and received a greater compensation, in the aggregate, for the transportation of refined sugar in car-load lots, under substantially,similar circumstances. and conditions, fora shorter than for a longer distance. It is aHegedfuat they charged; collected, and received a greater com· pensationfor hauling sugar in car-load lots, under substantially similar circumstances and conditions, from Ogden, Utah, to Salina, Kah., thau,was charged and received for hauling sugar in car-load lots from Ogden, Utah, to Kansas City, Mo. In this count of the indictment there is no allegation of a joint rate to Kansas City, Mo., and the joint rate is not made the. basis by which the reasonableness of the local rate is to be determined, hence does not come within tile principle announced in the case of Hallway Co. v. Osborne.
in.,.,

:

UNITED STATES V. HING QUONG CHOW.

233

The fourth count of the indictment alleges a joint rate to Topeka, Kan., which was less than the rate charged to Salina. This count is bad because of a typographical error in drafting it. In that portion of the count which alleges that the shipment was made under substantially similar circumstances, Kansas City is named' as a point for the joint rate, whereas it should have been Topeka. n is urged by counsel for the defendants that the prosecution of the defendants under this indictment was an effort on the part of the government to interfere with the revenues of the Union Pacific, which could not be done until the revenue of that company should exceed 10 per cent. upon· the cost of the road. I cannot concur in the views expressed by counsel, but even if their contention be true, I think the question would not .arise upon a motion to quash. It i$ therefore unnecessary to discuss it here. As to defendant Barr, the allegation is that he was the agent who collected and received the rates which had been fixed by the other defendants. There is no allegation that he had anything to do with making the rate; and, indeed, the allegation as to the position he occupied would, I think, exclude that idea. I think, so far as the case applies to him, it comes within the principle announced in the case of U. S. v. Michigan Cent. R. Co., 43 Fed. Rep. 26 ; and the motion to quash will be sustained as to defendant'Barr. The motion will a.lso be sustained, as to the other defendants, to the first, second, and fourth counts of the indictment, and will be denied as to the third count. If, however, upon the trial of the cause, it should by made to appear by the evidence that the joint rate to Kansas Oity was made the basis of adjusting the local rates charged in this count of the indictment, the would be entitled to acquittal. Indictment No. 3,091 is against the four defendants first named, and, for the reasons herein suggested in relation to the third count in indictment No. 3,092, the motion to quash will be overruled as to the first count. The motion will be sustained as to the second count. for the reason that the same typographical error, of inserting Kan: sas City, Mo., instead of Topeka, Kan., which occurred in the fourth count of indictment No. 3,092, occurs in the second count of this indictment.
UNITED STATES v. BING QUONG CHOW. (Circuit Court, E. D. Louisiana. No. 2,006.
CHINESE-UNLAWFUL PRESENCE-INDICTMENT.

December 8, 1892.

The act of May 5, 1892, providing that any Chinese person "convicted and adjudged" to be not lawfully entitled to remain in the United States shall be imprisoned at hard labor for not more than one year, and thereafter removed from the country, cannot be made the basis of an indictment, The statute is political, and not criminal" in its nature; the is summary in character, and tile imprisonment is not for the purpose of punisb ment. but for detention until the removal is effected in the manner provided by the act. .

At Law. Iu1ictment of Ring Quong Chow for being unlawfully in the United States. On motion to quash. Granted.