The act of Congress commonly referred to as the Hepburn law was enacted June 29, 1906. 34 Stat. at L. 584, chap. 3591, U.S.C.omp. Stat. Supp. 1907, p. 892. In November, 1906, in the district court of the United States for Minnesota, the Great Northern Railway Company and several of its officials were indicted for violations of the act of 1903, commonly known as the Elkins act. 32 Stat. at L. 847, chap. 708, U.S.C.omp. Stat. Supp. 1907, p. 880. There were fifteen counts, all relating to acts done in May, June, July, and August, 1905. Except as to varying dates of shipment and the sum of the concessions, the counts were alike. A reference to the first count will therefore make clear all the charges which the indictment embraced. After alleging the corporate existence of the railway company, the capacity of its named officials and agents, and the fixing and publishing of rates, there was set out the carriage of certain grain by the railway company from Minneapolis, Minnesota, to Seattle, Washington, for account of the W. P. Devereux Company, a corporation. It was then alleged that by the tariff and schedule of rates as established, published, and filed in conformity to the act to regulate commerce the legal charge was 50 cents for each 100 pounds of grain carried from Minneapolis to Seattle, 'but the grand jurors aforesaid, on their oath aforesaid, do present and charge that . . . within the jurisdiction of this court, . . . the said Great Northern Railway' (and the officers and agents named) 'did unlawfully grant and give to the said W. P. Devereux Company . . . a concession of twenty cents (20c.) of the said rate as aforesaid upon every 100 pounds of the property so transporated . . . as aforesaid, whereby the said property was, by said corporation common carrier, transported in said interstate commerce . . . at a less compensation and rate than that named therefor in said tariff and schedules so as aforesaid published and filed by the said common carrier and in force at the time upon its said route.'
The indictment was demurred to by all the accused upon the following grounds:
'1. That neither the said indictment nor any count in the said indictment stated sufficient facts or grounds to constitute against the said defendants, or either of them, an offense against the laws of the United States, nor any offense.
'2. That the statute of the United States creating the offense or offenses pretended to be charged in the said indictment, and under which said indictment was found, was duly repealed and was not in force at the time when the said indictment was found.'
The demurrer in this case was evidently heard along with demurrers in cases against others presumed to present like questions. The demurrer was overruled for reasons stated in an opinion, deemed controlling not only of this, but also of the other cases. 151 Fed. 84. By consent there was a severance between the railway company and the individual defendants. On the trial, after the jury had been sworn and when the taking of testimony was about to begin, the bill of exceptions states that the counsel for the company declared that he desired, on behalf of the defendant, 'in order to save our rights under the law questions involved, to make objection to the introduction of any evidence. And I desire to have it understood and agreed between the government and the defendant that I may now enter this objection with the same force and effect as if a witness had been already called and sworn to testify on behalf of the government.' On this being assented to by the government, objection was made to the introduction of any evidence based upon the two grounds which had been previously urged to support the demurrer. The following occurred:
The Court: I understand that last ground. Let us see the first ground.
Mr. Brown: The first ground is the general ground of the insufficiency of the indictment. The second is the same thing, only more specific.
I think the objection will be sufficient if confined to the first one.
The Court: The point that you wish to make is that there can be no prosecution here, no matter what the evidence is, because of the repeal of this Elkins act by the Hepburn act.
Mr. Brown: That is right.
The Court: The objection will be overruled.
Mr. Brown: I would ask an exception to the ruling of the court.
The Court: An exception is allowed.