in the remedy, but with the right. The section, however, was successfully invoked in a case involving alleged discrimination in the supply of cars, see United States v. Norfolk & Western R. Co., 109 Fed. 831; United States v. West Virginia & N. R. Co., 105 Fed. 252; United States v. Del. & W. R. Co., 40 Fed. 101. See supra, "Unjust preference in car service," § 250. See also West Virginia v. R. Co., 134 Fed. 198, C. C. A. fourth circuit, and affirming 125 Fed. 252. In this case, the court held that the circuit court had the power in a proceeding of this character to fix the percentage of cars the relator should have in times of shortage. See also same court in U. S. ex rel. v. Norfolk & Western R. R. Co., 143 Fed. 266 (1906), reversing 138 Fed. 849, and in Merchants Coal Co.v. Fairmont Coal Co., 169 Fed. 769 (1908). In B. & O. R. Co. v. United States ex rel., 215 U. S. 481, 54 L. Ed. 292, in 1909, the supreme court, in reversing the circuit court of appeals to the fourth circuit, 165 Fed. Rep. 113, which had awarded mandamus to compel equitable distribution, held that mandamus was no longer the proper remedy, though the statute had been specifically enacted for that purpose, in view of the very comprehensive amendments to the act enlarging the powers of the Interstate Commerce Commission, and that one of the purposes of these amendments was to cure the presumed remedial inefficiency of the act, to supply efficient means for giving effect to the orders of the commission. The alleged discriminating practices in the distribution of cars in times of shortage, was within the peculiar jurisdiction of the commission for investigation. The proper procedure, therefore, was to make complaint to and demand investigation through the commission. This decision overruled several decisions in the court of appeals, and circuit courts taking a contrary view. § 421. Commission to consist of seven members; terms; salaries.-SEC. 24. (Added June 29, 1906.) That the Interstate Commerce Commission is hereby enlarged so as to consist of seven members with terms of seven years, and each shall receive [Qualifications and enlargement of commission.] ten thousand dollars compensation annually. The qualifications of the Commissioners and the manner of the payment of their salaries shall be as already provided by law. Such enlargement of the Commission shall be accomplished through appointment by the President, by and with the advice and consent of the Senate, of two additional Interstate Commerce Commissioners, one for a term expiring December thirty-first, nineteen hundred and eleven, one for a term expiring December thirty-first, nineteen hundred and twelve. The terms of the present Commissioners, or of any successor appointed to fill a vacancy caused by the death or resignation of any of the present Commissioners, shall expire as heretofore provided by law. Their successors and the successors of the additional Commissioners herein provided for shall be appointed for the full term of seven years, except that any person appointed to fill a vacancy shall be appointed only for the unexpired term of the Commissioner whom he shall succeed. Not more than four Commissioners shall be appointed from the same political party. [Existing laws as to attendance of witnesses and pro- (Additional provisions in Act of June 29, 1906.) (Sec. 9.) That all existing laws relating to the attendance of witnesses and the production of evidence and the compelling of testimony under the Act to regulate commerce and all Acts amendatory thereof shall apply to any and all proceedings and hearings under this Act. [Conflicting laws repealed.] (Sec. 10.) That all laws and parts of laws in conflict with [Amendments not to affect pending causes in court.] the provisions of this Act are hereby repealed; but the amendments herein provided for shall not affect causes now pending in courts of the United States, but such causes shall be prosecuted to a conclusion in the manner heretofore provided by law. [When act effective.] (Sec. 11.) That this Act shall take effect and be in force from and after its passage. [Time of taking effect extended 60 days (August 28, 1900).] Joint resolution of June 30, 1906, provides: "That the Act entitled 'An Act to amend an Act entitled "An Act to regulate commerce," approved February 4, 1887, and all Acts amendatory thereof, and to enlarge the powers of the Interstate Commerce Commission,' shall take effect and be in force sixty days after its approval by the President of the United States." [When act effective.] (Sec. 18 of Act of June 18, 1910.) That this act shall take effect and be in force from and after the expiration of sixty days after its passage, except as to sections twelve [sec. 15 of Act to regulate commerce, p. 23 herein] and sixteen [sec. 16 of Commerce Court Act, p. 47 herein], which sections shall take effect and be in force immediately. THE ELKINS' ACT. 422. The Elkins Act as amended. 423. The enactment and amendments to the act. 424. The repealing clause of the Hepburn Act did not bar prior of fenses. 425. The validity and enforcibility of the act. 426. Participation in the joint rate. 427. The unit of offenses under the act. The Standard Oil Com pany of Indiana case. 428. Prior contracts and want of criminal intent no defenses. 429. Conspiracy in rebating. 430. What are rebates. 431. Requisites of indictment under the act. § 422. The Elkins Act as amended. AN ACT To further regulate commerce with foreign nations and among the States. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, Sec. 1. (As [Carrier corporation as well as officer or agent liable to conviction for misdemeanor.] amended June 29, 1906.) That anything done or omitted to be done by a corporation common carrier, subject to the Act to regulate commerce and the Acts amendatory thereof, which, if done or omitted to be done by any director or officer thereof, or any receiver, trustee, lessee, agent, or person acting for or employed by such corporation, would constitute a misdemeanor under said Acts or under this Act, shall also be held to be a misdemeanor committed by such corporation, and upon conviction thereof it [Penalty.] shall be subject to like penalties as are prescribed in said Acts or by this Act with reference to such persons, except as such penalties are herein charged. The willfull failure [Failure of carrier to publish rates or observe tariffs a misdemeanor.] upon the part of the carrier subject to said Acts to file and publish the tariffs or rates and charges as required by said Acts, or strictly to observe such tariffs until changed according to law, shall be a misdemeanor, and upon conviction thereof [Penalty, fine.] the corporation offending shall be subject to a fine of not less than one thousand dollars nor more than twenty thousand dollars for each offense; and it shall be unlawful for any person, persons, or corporation to offer, grant, or give, or to solicit, accept [Misdemeanor to offer, grant, give, solicit, accept, or re- or receive any rebate, concession, or discrimination in respect to 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 thereof 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 thereof, or whereby any other advantage is given or discrimination is practiced. 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 misde [Penalty, fine or imprisonment, or both.] meanor, and on conviction thereof shall be punished by a fine of not less than one thousand dollars nor more than twenty thousand dollars: Provided, That any person, or any officer or director of any corporation subject to the provisions of this Act, or the Act to regulate commerce and the Acts amendatory thereof, or any receiver, trustee, lessee, agent, or person acting for or employed by any such corporation, who shall be convicted as aforesaid, shall, in addition to the fine herein provided for, be liable to imprisonment in the penitentiary for a term of not exceeding two years, or both such fine and imprisonment, in the discretion of the court. Every violation of this section shall be prosecuted [Judleial distrlet in which cases may be prosecuted.] in any court of the United States having jurisdiction of crimes within the district in which such violation was committed, or through which the transportation may have been conducted; and whenever the offense is begun in one jurisdiction and completed in another it may be dealt with, inquired of, tried, determined, and punished in either jurisdiction in the same manner as if the offense had been actually and wholly committed therein. [Act of officer or agent to be also deemed act of carrier.] In construing and enforcing the provisions of this section, the act, omission, or failure of any officer, agent, or other person acting for or employed by any common carrier, or shipper, acting within the scope of his employment, shall in every case be also deemed to be the act, omission, or failure of such carrier or shipper as well as that of the person. Whenever any carrier [Rates filed or participated in by carrier shall, as against files with the Interstate Commerce Commission or publishes a particular rate under the provisions of the Act to regulate commerce or Acts amendatory thereof, or participates in any rates so filed or published, that rate as against such carrier, its officers or agents, in any prosecution begun under this Act shall be con clusively deemed to be the legal rate, and any departure from such rate, or any offer to depart therefrom, shall be deemed to be an offense under this section of this Act. Any person, corporation, or company who shall deliver property for interstate transportation to any common carrier, subject to the provisions of this Act, or for whom as consignor or consignee, any such carrier shall transport property from one State, Territory, or the District of Columbia to any other State, Territory, or the District of Columbia, or foreign country, who shall knowingly by employee, agent, officer, or otherwise, directly, or indirectly, by or through any means or device whatsoever, receive or accept from such common carrier any sum of money or any other valuable consideration as a rebate or offset [Forfeiture, in addition to other prescribed penalty, of three times amount of money and value of consideration illegally received shall be paid to the United States.] against the regular charges for transportation of such property, as fixed by the schedules of rates provided for in this Act, shall in addition to any penalty provided by this Act forfeit to the United States a sum of money three times the amount of money so received or accepted and three times the value of any other consideration so received or accepted, to be ascertained by the [Attorney-general to collect such forfeiture by civil ac tion.] trial court; and the Attorney-General of the United States is authorized and directed, whenever he has reasonable grounds. to believe that any such person, corporation, or company has knowingly received or accepted from any such common carrier any sum of money or other valuable consideration as a rebate or offset as aforesaid, to institute in any court of the United States of competent jurisdiction a civil action to collect the said sum or sums so forfeited as aforesaid; and in the trial of said action all such rebates or other considerations so received or accepted [Period covered to be six years prior to commencement of action.] for a period of six years prior to the commencement of the action may be included therein, and the amount recovered shall be three times the total amount of money, or three times the total value of such consideration, so received or accepted, or both, as the case may be. [Persons interested in matters involved in cases before Sec. 2. That in any proceeding for the enforcement of the provisions of the statutes relating to interstate commerce, whether such proceedings be instituted before the Interstate Commerce Commission or be begun originally in any circuit court of the United States, it shall be lawful to include as par |