Indictments were filed against the Rehigh Valley Railroad Company, Fred E. Signer, Charles Schaefer, Sr., and Charles Schaefer, Jr., as follows:
(1) D 4336. Against all the above-named parties, for conspiracy. Section 37, Criminal Code (Act March 4, 1909, c. 321, 35 Stat. 1096 [Comp. St. 1916, § 10201]).
(2) D 4337. Against the two Schaefers, for knowingly soliciting, accepting, and receiving a concession from the Rehigh Valley, etc. (ten counts, re boat demurrage). Section 1, Elkins Act (Act Feb. 19, 1903, c. 70S, 32 Stat. 847), as amended June 29, 1906 (34 Stat. 587, c. 3591 [Comp. St. 1916, § 8597]).
(3) D 4339. Against the Rehigh Valley, for knowingly offering, granting,'and giving a concession to Schaefer firm, in respect of the transportation of hay, whereby such property was by a device transported at a less rate than that named in the tariffs (ten counts, re boat demurrage). Section 1, Elkins Act, as amended June 29, 1906.
(4) D 4340. Against the two Schaefers, for knowingly soliciting, accepting, and receiving a concession and discrimination from the Re-high Valley, in regard to shipments of hay (five counts, re receiving “authorizations”; five counts, re actual transportation of hay).
(5) D 4341. Against Rehigh Valley and Signer, for knowingly offering, granting, and giving a concession and discrimination to the Schaefer firm in respect to the transportation of carload shipments of hay, whereby advantages were given and discriminations practiced (five counts, re granting “authorizations”; five counts, re actual transportation of hay). Section 1, supra.
(6) 'D 4338. • Against Rehigh Valley for willful failure strictly to observe tariffs (ten counts). Section 1, supra.
Defendants filed demurrers to each of the above-mentioned six indictments. In respect of indictment (6), D 4338, the attorneys for the Rehigh Valley Railroad Company have requested that they be permitted to withdraw the demurrer and to plead over. Such permission is herewith given.
Since the oral argument, the government has taken over the executive administration of the railroads and the questions involved (except as they affect the particular defendants herein) do not seem to have the broad importance which, apparently they possessed at the time of the argument. By this I merely mean that the determination of the interesting questions involved now concerns only situations which arose prior to the exercise of government control, and that, in view of present government administration, it will be some time before these questions will be of practical importance as affecting the future conduct of carriers and shippers. Because of what has been stated supra, I shall dispose of the questions, with a brief statement of my reasons, and without setting forth any elaborate analysis of cases.
[1] Conspiracy Indictment (No. D 4336). The statute provides:
“Every person or corporation, whether carrier or shipper, who shall, knowingly, offer, grant, or give, or solicit, accept or receive any such rebates, concession, or discrimination shall be deemed guilty of a misdemeanor. * * * ” Comp. St. 1916, § 8597.
*334To constitute the crime it is not necessary that the railroad should “offer” and the shipper “accept” the discrimination. The mere offer of the rebate, concession, or discrimination, knowingly made by the railroad, is one of the offenses denounced by the statute. The proof may show that the unlawful agreement was that there should he given, and at the same time received, the discrimination complained of. If the proof so develops, the trial judge can deal with the question as he may be advised, and will consider that he is not to be hampered by this memorandum opinion. Here, however, the question must be dealt with as it appears on the face of the indictment. The indictment charges, not only that the railroad and its duly authorized agent and the shippers conspired, but makes as parties to the conspiracy the old-time “divers other persons to the grand jurors unknown.” In many conspiracy cases these “divers other persons” unknown to the grand jury never appear and are never mentioned; but the court, in passing on the indictment, must assume that there are such divers other and unknown persons. I think the indictment is good, and the demurrer is overruled.
[2] Boat Demtirrage Concessions (Nos. D 4337 and D 4339). Stripped of indictment language, all that these indictments amount to is a charge in one indictment that the railroads have not collected de-murrage and a charge in the other indictment that the shippers have not paid it. The use of the word “unlawfully” does not help out, be-' cause this is merely a conclusion. While, under certain circumstances, a device need not be set forth in the indictment, yet when, in point of fact, it is set forth, the court can determine whether such device is of a character to constitute or help constitute the crime charged. Of course 'it is plain that what is sought to be shown is that there was1 an agreement or understanding by which demurrage should not be collected; hut these indictments do not set forth an agreement, but are drawn in such a way as to amount merely to charging that the railroad has not collected certain accrued and proper charges and that the shipper has not paid them. The demurrer to each of these indictments is sustained.
[3] Discrimination re Transportation of Hay (No. D 4341)- This indictment contains ten counts, and may be subdivided into two heads —those counts numbered _1 to 5, inclusive, and those numbered 6 to 10, inclusive. As to counts 1 to 5, inclusive, the indictment sets forth that there was an embargo in respect of the transportation of hay, and that hay would not be transported for shippers by the Lehigh unless a permit or authorization for such transportation was obtained from Signer, acting for the Lehigh; that the Schaefers received such permits, while others similarly situated did not, even though these others requested such permits or authorization.
The mere receiving of permits, unaccompanied by transportation, is not a crime under the act; for the act provides that it is unlawful to “offer, grant or give * * * any rebate, concession or discrimination in respect to the transportation of any property in interstate * * * commerce.”
*335If there is no transportation, the mere giving of a permit is an idle act, although the case might be different if the railroad “offered” to transport.
It is sought to sustain these counts because the indictment charges that defendants “did knowingly offer” the alleged concession and discrimination to the Schaefers. Such an argument relies upon the form of words rather than their substance.
Take, for instance, count 1 as illustrative. What the indictment charges against defendants is that they “did * * * knowingly grant” (not offer) to the Schaefers authorizations for 57 carloads of hay. The word “offer,” where it appears in this and the similar counts, may therefore he treated as surplusage, or as disregarded, because plainly inconsistent with the facts as definitely set forth in the indictment. The demurrer to the five counts is sustained.
[4, 5] As to the remaining counts, the points raised by defendants go rather to the proof than te» the indictment. Transportation pursuant to authorizations to one shipper, and denials to others similarly situated-is clearly a violation of the statute. Whether the shippers are similarly situated is a question of fact (or possibly of law) to be determined on the evidence. If the embargo was illegal, that does not make discriminatory transportation under it legal.
Demurrers to counts 6 to 10, inclusive, overruled.
Discrimination re Transportation of Hay (No. D As to the first five counts, the case is even stronger, if anything, for defendants than in No. D 4341. Demurrer to these counts sustained. Demurrer to counts.6 to 10, inclusive, overruled.
Defendants may, of course, plead over in those instanqes where the demurrers are overruled.