DALLAS, Circuit Judge.
The plaintiff in error was tried, convicted, and sentenced upon an information, the gravamen of which appears to be that it, the Camden Iron Works (a corporation), had received from the Mutual Transit Company, a rebate from a rate for transportation of property, which was published and filed with the Interstate Commerce Commission by the said transit company and certain designated railroad companies; but, without pausing to consider whether any crime was sufficiently alleged, we pass at once to the broader and less technical question, whether there was any evidence upon which, as to the offense intended to be charged, the verdict of guilty that was rendered could be sustained. Wiborg v. United States, 163 U. S. 632-638, 16 Sup. Ct. 1127, 1197, 41 L. Ed. 289. That offense was created and defined by the act of February 19, 1903, entitled “An act to further regulate commerce,” etc. (32 [562]*562Stat. 847, c. 708 [U. S. Comp. St. Supp. 1907, p. 880 et seq.]), in these terms:
“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 rebate, 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 plaintiff in error admits its receipt of the sum of money specified in the information, but insists that it was not a rebate within the statute, because, as argued, the Mutual Transit Company, by whom and from whose funds it was paid, was not “subject to such act to regulate commerce,” and was not “required” to file, and had not filed, any tariff in respect of the transportation in question. The facts material to this insistence may be briefly stated. The Mutual Transit Company was a carrier by water only, having a steamship line on the Great Calces from Buffalo and Fairport to West Superior. It agreed with the Camden Iron Works to “protect” a rate of 45 cents per hundred pounds for the transportation from-the point of origin to Winnipeg, of certain iron pipe which the Camden Iron Works proposed to ship from Florence and Camden, in New Jersey, and from Emaus, in Pennsylvania, to Winnipeg, in the Dominion of Canada, and the route designated by the transit company, and assented to by the Camden Iron Works, was, as to the pipe from Camden and Florence, after its lighterage to Philadelphia, thence by the Baltimore & Ohio Railroad to Fairport, thence by the Mutual Transit Company’s steamship line to West Superior, and then by the Great Northern Railway and the Canadian Northern Railway to Winnipeg; and, as to the pipe from Emaus, by the Philadelphia & Reading Railway and the Lehigh Valley Railroad to Buffalo, thence by the Mutual Transit Company’s steamship line to West Superior, and thence by the Great Northern Railway and the Canadian Northern Railway to Winnipeg. After the pipe had been shipped, the Baltimore & Ohio Railroad Company and the Philadelphia & Reading Railway Company (neither of them being privy to the Mutual Transit Company’s undertaking for a 45 cent rate) presented bills to the Camden Iron Works at 49% cents per hundred pounds, and, upon this being communicated to the Mutual Transit Company, its representative told the Camden Iron Works to pay the charge of 49% cents and look to the transit company for a return of the amount of the excess over 45 cents per hundred pounds. Accordingly, the Camden Iron Works paid the bills referred to, and then claimed and received from the transit company the amount of said excess, viz., $1,230.59, and this sum it is which the information avers was “then and there a rebate and concession in respect of the transportation [563]*563of the said 1,500 tons of iron pipe, from said places of origin of shipment and transportation to the said place of destination of shipment and transportation, and being then and there a rebate and concession of and from the full and lawful rates and charges then and before then established and published by the said common carriers, as aforesaid, and filed with the Interstate Commerce Commission as aforesaid, by the said Baltimore & Ohio Railroad Company, the said Philadelphia & Reading Company, the said Mutual Transit Company, and the said the Great Northern Railway Company, and being then and there, and at the times aforesaid, in full force and effect, to wit, the aggregate, rate and charge of forty-nine and one-half cents per hundred pounds. Whereby the said property, to wit, 1,500 tons of iron pipe, was then and there transported as aforesaid at a less rate than that named in the said tariffs published and filed, as aforesaid, contrary to the form of the act of Congress in such case made and provided, and against the peace and dignity of the United States of America.”
It is now apparent, we think, that the verdict of guilty in this case ought not to have been sustained, unless, as concerning and affecting the defendant, the Mutual Transit Company was subject to the act to regulate commerce, and a party to some tariff or tariffs “published and filed * * * as is required by said act”; and whether or not it was subject to that act depends upon whether or not it was “engaged in -the transportation of passengers or property wholly by railroad” (which, admittedly, it was not), “or partly by railroad and partly by water when both are used, under a common control, management, or arrangement, for a continuous carriage or shipment.” Act Feb. 4, 1887, c. 104, § 1, 24 Slat. 379 [U. S. Comp. St. 1901, vol. 3, p. 3154]. The learned trial judge held, and with unquestionable correctness, “that the water company is not within the interstate commerce act, and is not required to file a schedule of its rates, so long as it is operating independently and over its water route”; but the crucial question, “Was there an arrangement between these companies?” he submitted to the jury, upon an understanding of the scope of the decision in Cin., N. O. & Tex. Pac. Railway Company v. Int. Com., 162 U. S. 184, 16 Sup. Ct. 700, 40 L. Ed. 935, in .which we are unable to concur. The underlying problem now presented involves the ascertainment, not merely of the meaning of the word “arrangement,” but of the effect which, in this particular case, should be ascribed to the words “common * * * arrangement,” as used in the first section of the act of February 4, 1887, and to the phrase “tariffs published and filed by such carrier,” as contained in the first section of the act of February 19, 1903.
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DALLAS, Circuit Judge.
The plaintiff in error was tried, convicted, and sentenced upon an information, the gravamen of which appears to be that it, the Camden Iron Works (a corporation), had received from the Mutual Transit Company, a rebate from a rate for transportation of property, which was published and filed with the Interstate Commerce Commission by the said transit company and certain designated railroad companies; but, without pausing to consider whether any crime was sufficiently alleged, we pass at once to the broader and less technical question, whether there was any evidence upon which, as to the offense intended to be charged, the verdict of guilty that was rendered could be sustained. Wiborg v. United States, 163 U. S. 632-638, 16 Sup. Ct. 1127, 1197, 41 L. Ed. 289. That offense was created and defined by the act of February 19, 1903, entitled “An act to further regulate commerce,” etc. (32 [562]*562Stat. 847, c. 708 [U. S. Comp. St. Supp. 1907, p. 880 et seq.]), in these terms:
“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 rebate, 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 plaintiff in error admits its receipt of the sum of money specified in the information, but insists that it was not a rebate within the statute, because, as argued, the Mutual Transit Company, by whom and from whose funds it was paid, was not “subject to such act to regulate commerce,” and was not “required” to file, and had not filed, any tariff in respect of the transportation in question. The facts material to this insistence may be briefly stated. The Mutual Transit Company was a carrier by water only, having a steamship line on the Great Calces from Buffalo and Fairport to West Superior. It agreed with the Camden Iron Works to “protect” a rate of 45 cents per hundred pounds for the transportation from-the point of origin to Winnipeg, of certain iron pipe which the Camden Iron Works proposed to ship from Florence and Camden, in New Jersey, and from Emaus, in Pennsylvania, to Winnipeg, in the Dominion of Canada, and the route designated by the transit company, and assented to by the Camden Iron Works, was, as to the pipe from Camden and Florence, after its lighterage to Philadelphia, thence by the Baltimore & Ohio Railroad to Fairport, thence by the Mutual Transit Company’s steamship line to West Superior, and then by the Great Northern Railway and the Canadian Northern Railway to Winnipeg; and, as to the pipe from Emaus, by the Philadelphia & Reading Railway and the Lehigh Valley Railroad to Buffalo, thence by the Mutual Transit Company’s steamship line to West Superior, and thence by the Great Northern Railway and the Canadian Northern Railway to Winnipeg. After the pipe had been shipped, the Baltimore & Ohio Railroad Company and the Philadelphia & Reading Railway Company (neither of them being privy to the Mutual Transit Company’s undertaking for a 45 cent rate) presented bills to the Camden Iron Works at 49% cents per hundred pounds, and, upon this being communicated to the Mutual Transit Company, its representative told the Camden Iron Works to pay the charge of 49% cents and look to the transit company for a return of the amount of the excess over 45 cents per hundred pounds. Accordingly, the Camden Iron Works paid the bills referred to, and then claimed and received from the transit company the amount of said excess, viz., $1,230.59, and this sum it is which the information avers was “then and there a rebate and concession in respect of the transportation [563]*563of the said 1,500 tons of iron pipe, from said places of origin of shipment and transportation to the said place of destination of shipment and transportation, and being then and there a rebate and concession of and from the full and lawful rates and charges then and before then established and published by the said common carriers, as aforesaid, and filed with the Interstate Commerce Commission as aforesaid, by the said Baltimore & Ohio Railroad Company, the said Philadelphia & Reading Company, the said Mutual Transit Company, and the said the Great Northern Railway Company, and being then and there, and at the times aforesaid, in full force and effect, to wit, the aggregate, rate and charge of forty-nine and one-half cents per hundred pounds. Whereby the said property, to wit, 1,500 tons of iron pipe, was then and there transported as aforesaid at a less rate than that named in the said tariffs published and filed, as aforesaid, contrary to the form of the act of Congress in such case made and provided, and against the peace and dignity of the United States of America.”
It is now apparent, we think, that the verdict of guilty in this case ought not to have been sustained, unless, as concerning and affecting the defendant, the Mutual Transit Company was subject to the act to regulate commerce, and a party to some tariff or tariffs “published and filed * * * as is required by said act”; and whether or not it was subject to that act depends upon whether or not it was “engaged in -the transportation of passengers or property wholly by railroad” (which, admittedly, it was not), “or partly by railroad and partly by water when both are used, under a common control, management, or arrangement, for a continuous carriage or shipment.” Act Feb. 4, 1887, c. 104, § 1, 24 Slat. 379 [U. S. Comp. St. 1901, vol. 3, p. 3154]. The learned trial judge held, and with unquestionable correctness, “that the water company is not within the interstate commerce act, and is not required to file a schedule of its rates, so long as it is operating independently and over its water route”; but the crucial question, “Was there an arrangement between these companies?” he submitted to the jury, upon an understanding of the scope of the decision in Cin., N. O. & Tex. Pac. Railway Company v. Int. Com., 162 U. S. 184, 16 Sup. Ct. 700, 40 L. Ed. 935, in .which we are unable to concur. The underlying problem now presented involves the ascertainment, not merely of the meaning of the word “arrangement,” but of the effect which, in this particular case, should be ascribed to the words “common * * * arrangement,” as used in the first section of the act of February 4, 1887, and to the phrase “tariffs published and filed by such carrier,” as contained in the first section of the act of February 19, 1903. The court below held throughout, and finally charged the jury “that, if these goods were shipped on a through bill of lading or any other through document or writing, from any place in the United States to an adjacent foreign country upon a contract of continuous shipment by a water company, partly over railroads and partly over its own water route, and such goods are received in transit on this through writing under a conventional division of charges, such water company must be deemed to have subjected its company to an arrangement for a con-[564]*564tinuoüs Carriage or shipment within the meaning of the act to regulate commerce.” This language is very nearly the same as was employed by the Supreme Court (162 U. S. 193, 16 Sup. Ct. 700, 40 L. Ed. 935) in restrictively defining what it intended to hold in the case of Railway Company v. Int. Com. Com., supra, and, of course, it is always incumbent upon this court to accept any judgment of the Supreme Court of the United States as of binding authority; but the nature of the case with which that tribunal was dealing, when it made the deliverance that has been referred to, was so essentially different from that of the case now under consideration as to render the decision in the former wholly inapplicable to the latter. The sort of “arrangement” to which the attention of the Supreme Court was directed was one between the carriers themselves, and all that was actually adjudged is, that a state common carrier by railroad, who receives in transit goods shipped under a through bill of lading from a point in one state to a point in another, and “under a conventional division of the charges,” subjects its road to an arrangement within the meaning of the act. Thus understood, there is nothing in that case with which our view of the present one conflicts. In this instance, the contract for a continuous carriage or shipment was between the shipper itself and a single carrier by water, and the question is not whether a carrier subject to the acts had willfully failed “to file and publish the tariffs of rates and charges as required by said acts,” but whether the defendant, a shipper, had received from a carrier so subject a rebate from a rate that was named in a tariff or in tariffs which such carrier had in fact published and filed. Act Feb. 19, 1903, .§ 1. In other words, we are not called upon to determine whether the Mutual. Transit Company was required to file a tariff, or to join in those of the railroad companies, or to file an acceptance of them; for, to relieve the Camden Iron Works from the charge of crime, it suffices that none of these things was in fact done. It may be conceded, as the court below held, that participation by one of several carriers in a rate named in tariffs filed by others of them is evidence of a lawful rate as against such participating carrier; but we cannot assent to the instruction which was given to the jury in this case that “participation was evidence of a lawful rate,” not only as against the transit company, but also “as against this shipper,” the Camden Iron Works. The offense which a carrier subject to the acts may perpetrate by failing to publish and file tariffs, and that which a shipper may commit by accepting a rebate from tariffs published and filed, are distinctively denounced by the statute, and should not be commingled or confused in its administration. But, as to the transit company itself, the proofs show that an element which materially influenced the result in the case of the Cin., N. O. & Tex. Pac. Railway Company is wholly lacking from this case; unless, indeed, the transit company’s necessary concession to the carriers by railroad of their own lawful rates constituted “a conventional division of the charges,” and to us it seems clear that it did not. . ■
Finally, it is pertinent to remark that the legislation which has been under examination is- highly penal in its character, and while it is the [565]*565duty of the courts to so construe its terms as to suppress, if possible, the mischief against which it is directed, it is no less their duty to. see to it that no person, natural or artificial, shall be held guilty of a crime, upon an interpretation of the statute creating it, which does not appear, with at least a reasonable degree of certainty, to be the correct one.
Having reached the conclusion that there was no evidence to sustain the conviction of the defendant, and that therefore its request for a direction to the jury to render a verdict of not guilty should have been granted, the judgment of the District Court is reversed.