188 F.2d 889 (3rd Cir. 1951), 10368, United States v. Boyce Motor Lines, Inc.

Docket Nº:10368.
Citation:188 F.2d 889
Case Date:May 03, 1951
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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188 F.2d 889 (3rd Cir. 1951)




No. 10368.

United States Court of Appeals, Third Circuit.

May 3, 1951

Submitted March 6, 1951.

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Grover C. Richman, Jr., U.S. Atty., Newark, N.J., Charles J. Tyne, Asst. U.S. Atty, Newark, N.J., (Alfred E. Modarelli, U.S. Atty., Newark, N.J., on the brief), for appellant.

Joseph C. Glavin, Jersey City, N.J. (A. Harry Moore, Jersey City, N.J., of counsel), for appellee.

Russell E. Watson, New Brunswick, N.J. (Leander I. Shelley, Daniel B. Goldberg and Shickrey Anton, all of New York City, of counsel), amicus curiae.

Before MARIS, McLAUGHLIN and HASTIE, Circuit Judges.

MARIS, Circuit Judge.

This is an appeal by the United States from so much of an order of the District Court for the District of New Jersey as dismissed counts 1, 3 and 5 of an indictment against the defendant, Boyce Motor Lines, Inc. The three counts charged the defendant with three separate violations of the provisions of Sec. 197.1(b) of a regulation of the Interstate Commerce Commission governing the transportation of explosives and other dangerous articles by motor vehicle. 49 C.F.R. (1949 Ed.) § 197.1(b). This regulation was promulgated by the Interstate Commerce Commission 1 pursuant to the authority conferred upon it by 18 U.S.C. 835, which section also makes the knowing violation of the regulation a criminal offense. Holding that Sec. 197.1(b) of the regulation is so vague and indefinite as not to set forth an ascertainable standard of guilt the district court concluded that the section was invalid and accordingly dismissed the counts of the indictment which charged the violation of it. D.C., 90 F.Supp. 996.

Sec. 197.1(b) with which we are here concerned provides: '(b) Avoidance of congested places. Drivers of motor vehicles transporting any explosive, inflammable liquid, inflammable compressed gas, or poisonous gas shall avoid, so far as practicable, and, where feasible, by prearrangement of routes, driving into or through congested thoroughfares, places where crowds are assembled, street car tracks, tunnels, viaducts, and dangerous crossings.'

The pertinent provisions of 18 U.S.C. § 835 are as follows:

'The Interstate Commerce Commission shall formulate regulations for the safe transportation within the limits of the jurisdiction of the United States of explosives and other dangerous articles, including flammable liquids, flammable solids, oxidizing materials, corrosive liquids, compressed gases, and poisonous substances, which shall be binding upon all common carriers engaged in interstate or foreign commerce which transport explosives or other dangerous articles by land, and upon all shippers making shipments of explosives or other dangerous articles via any common carrier engaged in interstate or foreign commerce by land or water.

'Whoever knowingly violates any such regulation shall be fined not more than $1, 000 or imprisoned not more than one year, or both; and, if the death or bodily injury of any person results from such violation, shall be fined not more than $10, 000 or imprisoned not more than ten years, or both.'

The district court held the regulation invalid because it concluded that the violation of it is malum prohibitum in which intent is not a factor and, that being so, the use of the phrases 'so far as practicable' (90 F.Supp. 998) and 'where feasible' are so vague and indefinite as to make conjectural the standard of guilt which is sought to be set up by the regulation. We do not agree.

When the regulation is read with 18 U.S.C. § 835, the statute under which it

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was promulgated and which makes its violation a criminal offense, it becomes clear that the offense is not merely malum prohibitum but that a specific wrongful intent, i.e., actual knowledge of the existence of a duty under the regulation and a wrongful intent to evade it, is of the essence of the offense. This the United States concedes. The vice which the district court saw in the regulation was that it placed the defendant on trial for an offense of which it had no adequate warning. The court relied in this connection upon the rule laid down in United States v. L. Cohen Grocery Co., 1921, 255 U.S. 81, 41 S.Ct. 298, 65 L.Ed. 516, and Connally v. General Const. Co., 1926, 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322. In another series of cases, 2 however, the Supreme Court has pointed out that where the punishment imposed is 'only for an act knowingly done with the purpose of doing that which the statute prohibits, the accused cannot be said to suffer from lack of warning or knowledge that the act which he does is a violation of law. The requirement that the act must be willful or purposeful may not render certain, for all purposes, a statutory definition of the crime which is in some respects...

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