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under the provisions of paragraph 391 as trimmings; but if the article in question is manufactured with ornamentation and with characteristic design, to be used as a trimming and intended to be sewed directly upon a garment, without being made into something else before being appended thereto, it is specifically provided for in paragraph 391 as a trimming.

The case presents more a question of fact than of law. I have carefully studied the record and reviewed the evidence, and especially that taken since the decision of the Board of Appraisers, and find, from the whole evidence and the exhibits, that the facts remain as was found by the Board of Appraisers; and therefore I affirm its decision.

MOXIE NERVE FOOD CO. OF NEW ENGLAND V. MODOX CO. et al.

.

(Circuit Court, D. Rhode Island. June 22, 1907.)

No. 2,659.

TRADE-MARKS AND TRADE-NAMES-SUITS FOR UNFAIR COMPETITION-Costs.

In a suit for unfair competition in trade where the charge made against the defendant is established, but, owing to fraudulent representations made by complainant in respect to its goods, it is not entitled to relief in

equity, neither party will be allowed costs.
In Equity. On defendant's motion for entry of final decree.
For former opinion, see 152 Fed. 493.
Roberts & Mitchell, for complainant.
Charles A. Wilson and George H. Huddy, Jr., for defendants.

BROWN, District Judge. I am of the opinion that the bill should be dismissed without costs, in accordance with the rule stated in Daniell's Chancery Practice (1st Ed.) p. 1540:

"Where the conduct of both parties has been equally reprehensible, the court will also abstain from giving costs in favor of either party."

The following authorities, cited by counsel for the complainant, seem to show a settled practice to deny costs in cases like the present case: Fetridge v. Wells, 13 How. Prac. (N. Y.) 385; Leather Cloth Co. v. American Leather Cloth Co., 33 L. J. Ch. 199; Nixey v. Roffey, W. N. 1870, p. 227; Rodgers v. Rodgers, 31 L. T. N. S. 285; Ripley v. Bandey, 14 R. P. C. 591; Newman v. Pinto, 57 L. T. N. S. 31; Estcourt v. Estcourt, L. R. 10 Ch. App. 276; Warsop v. Warsop, 21 R. P. C. 481; Tallcot v. Moore, 6 Hun, 106; Lever Bros. v. Bedingfield, 16 R. P. C. 3; Borthwick v. Evening Post, 37 Ch. D. 449; Ainsworth v. Walmsley, L. R. 1 Eq. 518; Thornloe v. Hill (1894), 1 Ch. 569; Hostetter v. Van Vorst (C. C.) 62 Fed. 600; Edgington v. Edgington, 11 L. T. N. S. 299; Bass v. Dawber, 19 L. T. N. S. 626. See, also, 2 Daniell’s Chancery (6th Am. Ed.) *p. 1397; Kerly on TradeMarks (2d Ed.) p. 433; Hopkins on Trade-Marks, § 173; Paul on Trade-Marks, § 327; Sebastian on Trade-Marks (4th Ed.) p. 236.

A decree may be entered accordingly.

UNITED STATES V. STANDARD OIL CO. OF INDIANA.

(District Court, N. D. Illinois. August 3, 1907.) 1. CONSTITUTIONAL LAW-INTERSTATE COMMERCE LAW.

Neither the Interstate Commerce Act Feb. 4, 1887, c. 104, 24 Stat. 379 [U. S. Comp. St. 1901, p. 3154] nor the amendatory Elkins' Law Feb. 19, 1903, c. 708, 32 Stat. 847 [U. S. Comp. St. Supp. 1905, p. 599), is unconstitutional on the grounds either (1) that in requiring all shippers to pay the published rates for transportation it deprives them of a natural right to make private contracts in respect thereto and therefore of their property without due process of law; nor (2) that by authorizing carriers to establish rates binding on shippers it confers upon them legislative power ; nor (3) that it deprives shippers of the right to invoke the judgment of the courts as to the reasonableness or unreasonableness of rates; nor (4) that in making it a criminal act for a shipper to accept rebates Congress exceeded its power under the commerce clause of the Constitution.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 10, Constitutional

Law, § 847, 92.] 2. COMMERCE-INTERSTATE COMMERCE-CARRIERS SUBJECT TO REGULATION.

A connecting railroad carrier over whose line an interstate shipment passes is engaged in interstate commerce with respect to such shipment and subject to the law regulating the same, although its line may lie wholly within one state.

[Ed. Note.-For cases in point, see Cent, Dig. vol. 10, Commerce, g 26.] 3. SAME-COMMON ARRANGEMENT FOR THROUGH CARRIAGE.

That a defendant made contracts for the through carriage of interstate shipments, and settlements therefor, solely with one railroad company, although such shipments passed over the lines of other companies also, sufficiently proves a common arrangement between the carriers for a continuous carriage.

[Ed. Note. For cases in point, see Cent. Dig. vol. 10, Commerce, 8 26.] 4. SAME-LAWFUL RATES-CONNECTING CARRIERS.

Where a railroad company published and filed a schedule of rates between points on its line within a state, and also procured and filed as its own the schedules of rates of a terminal company for the carriage of property from one of such points into another state and made contracts for through carriage and collected the freight therefor, it was an interstate carrier as to such shipments, and the lawful rate was the sum of

the rates shown by the two schedules. 8. CARRIERS-PROSECUTION OF SHIPPER FOR OBTAINING ILLEGAL CONCESSION

EVIDENCE.

On the trial of a shipper charged with having obtained a concession from the lawful published rate on interstate shipments in violation of the federal statute, the fact that another railroad may have had a pub

lished rate approximately as low as that received is immaterial. 6. SAME-KNOWLEDGE OF LAWFUL RATES-PRESUMPTION.

A shipper is chargeable with knowledge of the lawful rate on his shipment where it has been published and filed as required by law, where it is accessible to the public, unless he was misled after using proper dill

gence to ascertain such rate. 7. SAME-VIOLATION OF LAW-NUMBER OF OFFENSES.

Under the provision of the Elkins' Act Feb. 19, 1903, c. 708, 32 Stat. 847 [U. S. Comp. St. Supp. 1905, p. 599], that "every person or corporation who shall offer, grant or give, or solicit, accept or receive any such rebates, concession or discrimination shall be deemed guilty of a misdemeanor,” where a shipper has been continuously receiving concessions from the lawful rate from a railroad company, the government is not limited to a prosecution for a single offense, nor will the obtaining of a concession

155 F.-20

to remain in force for a year render all shipments made thereunder one offense nor the rendering of monthly freight bills reduce the number of offenses to the number of such bills, but each shipment made at the illegal rate constitutes a separate offense, and where the published rate is on car lots, and the reduced rate is granted on the same basis and a separate charge made for each car, in the absence of evidence showing to

the contrary, each car constitutes a separate shipment. 8. CRIMINAL LAW-SENTENCE-EVIDENCE TO AID COURT IN EXERCISE OF Dis

CRETION.

Where it rests in the discretion of the court to fix the punishment for a criminal offense after conviction, the court has power to subpoena and examine witnesses or take into consideration other evidence as to matters which may be in aggravation or mitigation of the offense, although not admissible on the issue of guilt or innocence.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 15, Criminal Law, § 977.] For former opinion, see 148 Fed. 719.

Edwin W. Sims, U. S. Atty., and James H. Wilkerson and Harry A. Parkin, Sp. Asst. U. S. Attys.

John S. Miller, Virgil P. Kline, Alfred D. Eddy, Moritz Rosenthal, and Chauncey W. Martyn, for defendant.

LANDIS, District Judge.

District Judge. This is a prosecution of the Standard Oil Company of Indiana for alleged violations of the act approved February 19, 1903, c. 708, 32 Stat. 847 [U. S. Comp. St. Supp. 1905, p. 599], known as the “Elkins' Law.” The charge is that the defendant's property was transported by the Chicago & Alton Railway Company at rates less than those named in the carrier's tariff schedules published and filed with the Interstate Commerce Commission, as required by law. The offenses are alleged to have been committed during the period from September 1, 1903, to March 1, 1905. The indictment contains 1,903 counts, each charging the movement of a car of oil. Certain of the transportation is alleged to have been from Whiting, Ind., to East St. Louis, Ill., the remaining counts covering transportation from Chappell, Ill., to St. Louis, Mo. The plea was “not guilty.” On the trial 441 counts were withdrawn from the consideration of the jury on grounds not going to the ultimate questions involved in the case. On 1,462 counts the verdict was "guilty.” Motions for a new trial and in arrest of judgment having been overruled, the matter is now before the court for the imposition of the penalty authorized by law.

The statute is as follows:

"And it shall be unlawful for any person, persons or corporation to offer, grant or give, or to solicit, accept, or receive any rebate, concession, or discrimination in respect of the transportation of any property in interstate or foreign commerce by any common carrier subject to said act to regulate commerce and the acts amendatory thereto whereby any such property shall by any device whatever be transported at a less rate than that named in the tariffs published and filed by such carrier as is required by said act to regulate commerce and the acts amendatory thereto, or whereby any other advantage is given or discrimination is practiced. Every person or corporation who shall offer, grant, or give or solicit, accept or receive any such rebates, concession or discrimination shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by a fine of not less than one thousand dollars nor more than twenty thousand dollars."

The provisions requiring the publication and filing of tariff schedules are as follows:

"Every common carrier subject to the provisions of this act shall print and keep open to public inspection schedules showing the rates and fares and charges for the transportation of passengers and property which any such common carrier has established and which are in force at the time upon its route. The schedules printed as aforesaid by any such common carrier shall plainly state the places upon its railroad between which property and passengers will be carried, and shall contain the classification of freight in force, and shall also state separately the terminal charges and any rules or regulations which in anywise change, affect, or determine any part or the aggregate of such aforesaid rates and fares and charges. Such schedules shall be plainly printed in large type, and copies for the use of the public shall be posted in two public and conspicuous places in every depot, station or office of such carrier where passengers or freight, respectively, are received for transportation in such form that they shall be accessible to the public, and can be conveniently inspected.

"Every common carrier subject to the provisions of this act shall file with the commission hereinafter provided for copies of its schedules of rates, fares and charges which have been established and published in compliance with the requirements of this section, and shall promptly notify said commission of all changes made in the same."

It was proven on the trial that the defendant, a corporation of Indiana, operates an oil refinery at Whiting, Ind. ; that the Chicago & Alton Railway Company, a corporation of Illinois, operates a line of railroad from Chicago to East St. Louis, Ill. ; that the Chicago Terminal Transfer Railroad Company operates a switching road from Whiting across the state line into Illinois, intersecting the Alton road at a station called Chappell, a short distance from Chicago; that there are three companies operating terminal roads from East St. Louis, I11., across the Mississippi river to St. Louis, Mo.; that prior to the occurrences upon which this prosecution is based the Chicago & Alton Company had filed with the Interstate Commerce Commission and distributed to its various freight agencies tariff schedules showing the rate for the transportation of oil in car lots from Whiting, Ind., to East St. Louis to be 18 cents per 100 pounds and the rate for like transportation from Chappell to St. Louis, Mo., to be 191/2 cents per 100 pounds. These schedules were as follows: Class tariff No. 24 issued by a number of carriers, including the Alton, operating between Chicago and East St. Louis naming a rate of 18 cents per 100 pounds on oil from Chicago to East St. Louis; a joint tariff of the Chicago Terminal and Alton companies providing that the rate from Whiting to East St. Louis shall be the same as the rate from Chicago to East St. Louis, and specifically enumerating class tariff No. 24 above mentioned; schedules of the three St. Louis terminal companies fixing a rate of 11/2 cents per 100 pounds from East St. Louis to St. Louis.

It also appeared that the shipments were made over the route covered by these schedules; that is to say, from Whiting to Chappell via the Chicago Terminal road, from Chappell to East St. Louis via the Chicago & Alton road, and from East St. Louis to St. Louis over the lines of the three St. Louis terminal companies. For this service the defendant paid the Alton 6 cents per 100 pounds on the traffic to East St. Louis and 71/2 cents for the shipments to St. Louis, bills at these rates being rendered by the Alton Company to the defendant semimonthly. Out of the moneys it received from the defendant the Alton Company paid the terminal companies for their part of the service. With these terminal companies the defendant had no relations whatever save only that the shipments were delivered to the Chicago Terminal Company at Whiting, the point of origin. At no time did the defendant apply to either of these companies for a rate covering the service they performed, nor did they render any bills to the defendant. Their dealings were exclusively with the Chicago & Alton Company, to which company, as the defendant's testimony showed, it applied for the through rate from Whiting to destination.

On these facts the court denied defendant's motion that the jury be peremptorily directed to return a verdict of not guilty. Whereupon, as justifying and excusing the use of the 6-cent rate, the defendant's traffic manager testified that in December, 1902, 1903, and 1904, he applied to the chief rate clerk at the office of the general freight agent of the Chicago & Alton Company for the rate on oil from Whiting to East St. Louis for each succeeding year; that on each occasion the clerk handed him a document purporting on its face to be a special billing order, as follows:

"The Chicago & Alton Railway Company,

"Traffic Department.

"Special Billing Order. “Issued

Effective Jan. 1, 1903. "From

Chicago, Ill. “To Alton Granite City and East St. Louis, Ill. via "On oil and Petroleum Products OL in tank cars. Rate 6 cents per cwt. "Expires Dec. 31, 1903. Unless sooner revoked. "Collection to be made through Auditor's office. Chas. A. King,

"General Freight Agent.” This witness also stated that when these special billing orders were delivered to him he received from the rate clerk an Alton tariff schedule called an "application sheet,” applying Chicago and East St. Louis rates to similar traffic from Whiting to East St. Louis; that at each of said times the traffic manager inquired of the rate clerk whether the rate had been filed, and was assured by him that it had; that the traffic manager was thus misled by the rate clerk into the honest belief that the rate of 6 cents per 100 pounds as shown by the special billing order from Chicago to East St. Louis had been filed with the Interstate Commerce Commission, and that, acting in this honest belief, payments at the 6-cent rate to East St. Louis and 71/2 cents to St. Louis were made. This special billing order was not and did not purport to have been filed with the Interstate Commerce Commission, nor was it distributed by the Alton Company to any freight agent for use in quoting rates to the general shipping public, with the single exception that, as the rate clerk testified, a copy was retained in the tariff files at the general freight office. Nor did the application sheet contain any reference to the special billing order, but it did specifically enumerate the Chicago-East St. Louis tariff 21 above mentioned, which tariff 24 showed the Chicago-East St. Louis rate to be 18 cents per 100 pounds. This alleged occurrence between the

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