(concurring). The judgment of reversal seems to me inevitable; and I agree that each of the three stated *390grounds is well taken. I purpose merely to state some considerations which I have deemed particularly controlling with respect to the first and third questions.
The most important question, because involved in every prosecution for rebating, is the proper construction of the statute. Carriers are forbidden “to offer, grant or give,” and shippers “to solicit, accept or receive any rebate, concession or discrimination in respect of the transportation of any property in interstate or foreign commerce * . * * whereby any such property shall, by any device whatever, be transported at a less rate than that named in the tariff published and filed.” Each count of the indictment alleged that the defendant knowingly' accepted and received a concession. The court charged that “it was the duty of the defendant to diligently endeavor in good faith to get from the Chicago & Alton Company the lawful rate by applying to the Alton Company at one of its freight or traffic offices or depots,” and that “the defendant must be held to have known that which this diligent endeavor would have enabled it to find out.” The court refused to charge that the defendant could not properly be convicted unless it “either actually knew that it was accepting and receiving a concession or willfully and intentionally ignored facts and circumstances known to it which would have led to such knowledge.” Thus a line was drawn between the negligent (unintentional) failure to ascertain the rate and the willful (intentional) disregard of knowledge of the rate or of facts which would lead to such knowledge. Did Congress denounce as an indictable offense a shipper’s negligence, namely, his unintentional failure to learn the published and filed rate?
The purpose of all canons of interpretation is to discover and effectuate the will of the lawmakers; and the primary rule, to which all others ate subsidiary, is to read the text according to the ordinary rules of grammar and composition, and to take the words in their usual meanings. Eor the carrier, “to offer” or the shipper “to solicit” involves the knowing and consenting mind. No common, no lexical, no technical definition to the contrary can be found. To say “to offer knowingly,” “to solicit knowingly,” is the veriest tautology. Likewise “to grant” or “to accept” requires the conscious and understanding act o.f the intellect and will. If one does not know what he is about, his alleged grarft is no grant. If one does not know the scope and nature of his act, his alleged acceptance is no acceptance. Does any ambiguity arise because the words “to give” and “to receive” are also used ? “To offer” and “to solicit” characterize the inchoate act. The completed act that is condemned is for the carrier “to grant or give” and the shipper “to accept or receive.” Ordinary and accepted meanings of “give” and “receive” are synonymous with those of “grant” and “accept.” As all those words appear in the same phrase of the same sentence, the principle of ejusdem generis forbids their being taken to indicate acts of antagonistic quality. Further, the emphasis herein given to the verbs is doubled when regard is extended to the nouns, “rebate,, concession, or discrimination.” Each of these nouns in and of itself implies a comparison with, a measurement by, and a departure from, a determined standard. Congress did not say (but, if it had, *391an argument might well be made that negligence in not learning published rates was to constitute a crime):
“The shipper whoso property shall be transported in interstate or foreign, commerce at a less rate than that named in the published and filed tariffs shall be subject to a fine.”
But Congress only said:
“The shipper who shall solicit, accept or receive a rebate, concession or discrimination in respect of the transportation of his property in interstate or foreign commerce shall be subject to a fine.”
But even if by lexicon and grammar “to receive a concession” could fairly be given the meaning “to come into the possession of a concession without knowledge or consent,” an auxiliary canon of construction would prevent that choice of meanings. That canon is that unless no other way is open a penal act will not be sustained and administered on the theory that it was “cunningly and darkly penned,” so as to entrap a merely negligent citizen within the meshes of a criminal prosecution. To couple in the same breath and under the same punishment such vitally different acts as the willful violation of the legally established equality between shippers and the unintentional failure to ascertain a published rate would constitute a trap unparalleled, so far as I have learned, in the annals of legislation.
In further pursuit of the inquiry whether Congress intended to penalize a shipper’s unintentional failure to ascertain a published rate, it is permissible to examine and see how Congress has treated the subject of negligence in other parts of the same act. In the very same section the carrier’s failure to file and publish rates or to observe them strictly until duly changed is made punishable by the same fine as rebating. “Failure” covers both intentional and unintentional non-performance. So, in the interest of precision, it became necessary to define the quality of the action. And here, at the only place where there was a definite call to say whether negligence should be punishable, Congress explicitly said “No.”
Another ancillary canon is to examine the history of the times immediately preceding the passage of a statute in order to learn the evil it was designed to remedy.
In the admirable and exhaustive “Report of the Senate Select Committee on Interstate Commerce,” January 18, 1886 (Senate Report 46, 1st Session, 49th Congress), the following appears on pages 188-190.
“Differences in rates between different commodities of a similar character are often unavoidable and justifiable, as has been shown, but no excuse can be offered, for any discrimination in the charges made by a common carrier as between persons similarly situated for whom a like service is performed under similar circumstances. This is the most flagrant and reprehensible form of arbitrary discrimination, individual favoritism is the greatest evil chargeable against the management of the transportation system of the United States. The evidence before the committee, shows that it has come to be considered by railroad officials as an indispensable feature of the system upon which their business is now carried on. and reveals ils existence to an extent that imperatively demands additional legislation to protect the people in their common-law rights and to insure them the equal enjoyment of the ad~ van! ages of transportation.
*392“One reference to the testimony must suffice to illustrate the universality of individual favoritism, the reasons which influence the railroads in favoring one shipper to the ruin of another, and the injustice of the system. Mr. 0. M. Wicker, of Chicago, a former railroad official of many years’ experience, was asked if he knew anything of discriminations upon the part of transportation companies as between individuals or localities, and testified as follows:
“Mr. Wicker: ‘Yes; I do. And this discrimination, by reason of rebates, is a part of the present railroad system. X do not believe the present railway system could be conducted without it. Roads coming into the field today and undertaking to do business on a legitimate basis of billing the property at the agreed rates would simply result in getting no business in a short time.’
“Senator I-Iarris: ‘Then, regardless of the popularly. understood schedule rates, practically it is a matter of underbidding for business by way of rebates?’ . ■ 1
“Mr. Wicker: ‘Yes, sir; worse than that. It is individual favoritism; the building up of one party to the detriment of the other. I will illustrate. I have been- doing it for years myself, and had to do it.’
“Senator Harris: ‘Doing it for yourself in your position?’
“Mr. Wicker: ‘I am speaking now of when I was a railroad man. Here is quite a grain point in Iowa, where there are five or six elevators. As a railroad man, I would try and hold all those dealers on a “level keel,” and give them all the same tariff rate. But suppose there was a road five or six or eight miles across the country, and those dealers should begin to drop in on me every day or two, and tell me that that road across the country was reaching within a mile or two of our station and drawing to itself all the grain. You might say that it would be the just and right thing to' do to give all the five or six dealers at this station a special rate to meet that competition through the country. But, as a railroad man, I can accomplish the purpose better by picking out one good, smart, live man, and, giving him a concession of three or four cents a hundred, let him gó there and scoop the business. I would get the tonnage; and that is what I want. But if I give it to tiie five, it is known in a very short time. * * * When you take in these people at the station on a private rebate, you might as well make it public and lose what you intend to accomplish. You can take hold of one man, and build him up at the expense of others, and the railroad will get the tonnage.’
, “Senator Harris: ‘The effect is to build that one man up and destroy the others?’
“Mr. Wicker: ‘Yes, sir; but it accomplishes the purposes of the road better than to build up the six.’
“Senator Harris: ‘And the road, in seeking its own self-preservation, has resorted to that method of concentrating the business into the hands of one or of a few to the destruction of the many?’
“Mr. Wicker: ‘Yes, sir; and that is a part and parcel of the system.’
“Senator Harris: ‘Is that system continued up to this time?’
“Mr. Wicker: ‘Yes, sir.’
* * *.* * * * * * *
“The practice prevails so generally that it has come to be understood among business men that the published tariffs are made for the smaller shippers and those unsophisticated enough to pay the established rates; that those who can control the largest amounts of business will be allowed the lowest rates; that those who, even without this advantage, can get on ‘the inside,’ through the friendship of the officials or by any other means, can at least secure valuable concessions; and that the most advantageous rates are to be obtained only through personal influence or favoritism or by persistent ‘bulldozing.’
“It is in evidence that this state of affairs is far from satisfactory, even to those specially favored, who can never be certain that-their competitors do not, or at any time may not, receive even better terms than themselves. Not a few large shippers, who admitted that they were receiving favorable concessions, testified that they would gladly surrender the special advantages they enjoyed if only the rates could be made public and alike to all.
“This suggests the remedy that should be applied, and the question of securing publicity of rates will be considered hereafter. The secrecy which at*393tends these transactions is the only evidence that is needed of their injustice. The uncertainty as to the rates actually charged which the system of personal favoritism occasions is demoralizing to all legitimate business, and is calculated to encourage only that which is purely speculative.
“The methods by means of which personal favoritism may be indulged in are limited in variety only by the ingenuity and inventive capacity of the railroad oiiicials. Its most common manifestation is in the form of special contracts, special rates, rebates, underbilling, and other secret devices for evading the schedule rates; but it is possible to accomplish the same purpose in so many different ways, when desired, that the absolute prevention of the practice will be attended with no little difficulty.”
A book that was cited in the debates was Hudson’s “The Railways and the Republic,” published in 1886. This work (particularly the chapters on “Ten Years of Discrimination,” “The History of a Commercial Crime,” “The Daw and the Railways,” and “The Discussion of Remedies”) indicates quite as clearly as does the Senate report that the evil to be remedied was “personal favoritism,” brought about by secret understandings and arrangements between railroads and favored shippers, and that the remedy for the evil was to let the light of publicity into the matter of rates, to prohibit all sorts of secret understandings and arrangements under pain of criminal punishment, and to provide a governmental agency to represent the aggrieved shipping public as against the oppressive railroads and their commercial favorites.
After several years of operation it was found that the Cullom act needed amending, not because of any failure to diagnose the evil accurately and fully, nor because of any misapprehension of the general course of treatment needed, but because it was considered desirable to test a represcription of the punitive remedies. All this is proven, I find, by the very clear report of the House Committee on Interstate and Foreign Commerce concerning the pending Elkins bill, February IS, 1903 (House Report 3765, 2d Session, 57th Congress). Under the Cullom act (Act Feb. 4, 1887, c. 104, 24 Stat. 379 [IJ. S. Comp. St. 1901, p. 3154]) “personal favoritism” was declared unlawful; and it was thought that the practice could he stopped by prescribing fine and imprisonment for any officer or agent of a carrier who entered into a secret arrangement with a shipper. But it was found virtually “impossible to obtain proof of the granting of a rebate by the officer of a railroad to some favored shipper unless the officer himself gives the evidence, in which case he is free from prosecution.” So it was proposed to extend the penalty to the corporation carrier itself. Again, the Cullom act made the treatment of other shippers the test of discrimination. It was determined to make the published rates the standard of measurement, and to extend the punishment as well to shippers who solicited or accepted any departure from the published rates. This House report quotes the testimony of members of the Interstate Commerce Commission as exhibiting fullv and accurately the then existing conditions that were to be met by the Elkins bill. I set forth a few expressions as illustrative:
“ * * * Rebating and rate cutting and all those different devices by which one shipper in a given locality gets better rates than his business rivals. * * * A railroad officer makes a secret compact with a shipper which gives him a lower rate than the public are required to pay. * * * I want *394two things: I want the corporation carrier made liable, and I want the shipper made liable when he accepts a preference or secret rate whether there is discrimination or not. * * * I want to repeat that there are two1 changes in the law relating to the enforcement of criminal remedies which are important, against which I venture to say no one will come here and interpose opposition'. They are that the corporation carrier shall be made liable, and not pimply its agent and representative, and that the shipper shall be made liable who knowingly accepts a- lower rate than that provided by the published tariff without being obliged to show that he thereby secured a discrimination in favor of himself and against his business rivals.”
To my mind this history furnishes clear and affirmative proof that the evil to be remedied in 1887 and in 1903 as well was nothing less than conscious and intended departures from the published rates. The same conclusion is reached by considering certain historical data negatively. While the views and reasons of an individual Senator or Representative expressed in debate cannot be taken as the views and reasons of Congress, yet what fails to appear in the debates may be considered as an historical fact tending negatively to prove what the scope of the.evil was that needed remedying. An extended search through the Congressional Record covering the period in 1884 and .1885 when the Reagan bill was pending, in 1886 and 1887 when the bills that resulted in the Cullom act were under consideration, and in 1903 when the Elkins bill was up, has failed to produce a word or hint that a single Senator or Representative during all those years was aware that one of the moving causes of the quarter century’s agitation preceding the Elkins act was the negligence of shippers in their unintentional failure to learn that the rates tendered them by carriers were not the true rates.
With respect to the amount of the fine I agree that errors of law were committed. I do not mean that the mere size of the fine involved error. The questions, according to my view, would be the same had there been but one count in the indictment and an assessment thereon of $30,000. Nor do I mean that the discretion of this court may be substituted for the discretion of the trial court. The case is here upon writ of error, and it is incumbent upon plaintiff in error to prove affirmatively by the record that errors of law entered into the judgment.
The bill of exceptions (the part under consideration is published in 155 Fed. 316-330) shows that the maximum of $30,000 was reached by acting upon certain matters as aggravations of the offense.
One of these was the finding that the defendant company against which judgment was about to be pronounced was merely a tool of the real offender. Such a circumstance may lawfully be considered in mitigation. To use it in aggravation violates, in my opinion, that principle of the law which forbids the punishment of one for another’s crime. The real offender should be proceeded against directly.
Another error of law occurred in denying the defendant company the benefit of the legal presumption that it had not, previously to the times laid in the indictment, violated the interstate commerce law. The record discloses that the court offered to hear in mitigation of punishment “any evidence that might be submitted by the defendant as tending to show that neither it nor the Standard Oil Company of New *395Jersey had ever violated the interstate commerce law before”; that the defendant declined to “attempt to show that it has been innocent of any wrongdoing in connection with matters outside of this record, when there is nothing before this court charging it with such wrongdoing,” and insisted that the court “must certainly presume the complete innocence of this defendant of any prior violations of the interstate commerce law, and fix its penalty, if any, solely upon the record in this case”; and that the court concluded that:
“Of course, on the trial of a defendant for a specific offense, this presumption is indulged in favor of that defendant as to that offense; but where, as in this case, the crime charged was the acceptance of a preferential railroad rate, in violation of a law that had been on the books for nearly 20 years; where during a period of 18 months, 1,000 car loads of property were shipped at an unlawful rate, which amounted to but one-third of the rate available to the general shipping public; where the convicted defendant’s transportation affairs were in the charge of an expert traffic official of at least ordinary intelligence and many years’ railroad traffic experience, and who was a frequent visitor at the general freight office of the railway company; where the unlawful rate was shown only by a paper appearing on its face to be a special billing order, and which directed that settlement for services rendered at the rate which it authorized should be made through the railway company’s auditor’s office instead of at the railway station or freight oiSce, as is done by the general shipping public; -and where the defendant when brought to trial persistently maintains that the Constitution of the United States guarantees to it the right to make a private contract for a railroad rate — this court is obliged to confess that he is unable to indulge the presumption, that in this case the defendant was convicted of its virgin offense.’’
Thus, it seems to me, the court virtually found the defendant guilty of prior offenses on the assumption that the state of affairs shown to have existed during the 18 months covered by the indictment extended backwardly from the earliest date named in the indictment. As to the lawfulness of considering prior offenses in aggravation and as to the methods of proving prior offenses, the trial court cited 1 Bishop’s New Crim. Law, §§ 948, 950. If Bishop’s latitude as to ex parte affidavits and hearsay evidence were the established -law, error in this case would nevertheless remain, for not even such method nor such evidence was back of the denial of the presumption of innocence.