United States v. A & P TRUCKING CORP.

Decision Date22 June 1953
Docket NumberCr. A. No. 346-52.
Citation113 F. Supp. 549
PartiesUNITED STATES v. A & P TRUCKING CORP. et al.
CourtU.S. District Court — District of New Jersey

Grover C. Richman, Jr., U. S. Atty., Newark, N. J., for plaintiff.

Milton T. Lasher, Hackensack, N. J., for defendants.

MODARELLI, District Judge.

Defendants, A & P Trucking Corporation and Anthony Oriente, were charged in an information with violating a regulation of the Interstate Commerce Commission, 49 C.F.R., Section 77.823, promulgated pursuant to 18 U.S.C. § 835. The evidence showed that the defendant Oriente operated a truck in interstate commerce owned by the defendant A & P Trucking Corporation, transporting a quantity of lacquer and lacquer thinners, reducers, and reducing compounds, without the requisite markings on the vehicle. For the defendant it is argued, however, that there was no evidence that these materials so transported were "flammable" within the definition of the applicable Regulation.

At the close of all the evidence, the defendants moved for a judgment of acquittal. Decision was reserved on the motion and the case submitted to the jury. The jury returned a verdict of not guilty in favor of the defendant corporation and one of guilty against the defendant Oriente. The case is now before me on the defendant Oriente's motion for judgment of acquittal after verdict under Rule 29(b), 18 U.S. C.A.

The statute provides, inter alia, that "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 * * * which shall be binding upon all common carriers engaged in interstate or foreign commerce which transport explosives or other dangerous articles by land * * *." The statute provides a penalty of fine or imprisonment, or both, for those who knowingly violate any such regulation.

Pursuant to the statutory mandate, the Interstate Commerce Commission published regulations requiring markings or placards on motor vehicles transporting flammable liquids under certain conditions. 49 C. F.R., Section 77.823. In a corresponding regulation, 49 C.F.R., Section 73.115, such flammable liquids ("for the purpose of parts 71-78" of the regulations) were defined as "any liquid which gives off flammable vapors (as determined by flash point from Tagliabue's open-cup tester, as used for test of burning oils) at or below a temperature of 80° F." (Emphasis supplied.)

An expert witness for the government testified that the materials transported had flash points of 32°, 36°, and 45°, as determined by the closed cup method of testing. Other evidence of flammability was contained in the bill of lading covering the shipment, showing "Flash Point between 20°-80° F." and stamped "Red Label."

There is no evidence, however, that the flash point of the materials was determined "by flash point from Tagliabue's open-cup tester, as used for test of burning oils," and it is the lack of this evidence that defendant urges is fatal to lawful conviction.

In disposing of this question we may assume that the Regulations were validly promulgated by the Interstate Commerce Commission pursuant to lawful statutory authority and appropriate statutory standards. United States v. Boyce Motor Lines, Inc., D.C.N.J.1950, 90 F.Supp. 996, 1000, reversed on other grounds, 3 Cir., 188 F.2d 889, affirmed, 342 U.S. 337, 96 L.Ed. 367, 72 S.Ct. 329; Yakus v. United States, 1952, 321 U.S. 414, 64 S.Ct. 660, 88 L.Ed. 834. As such, these regulations have the force and effect of law. Atchison, T. & S. F. R. Co. v. Scarlett, 1937, 300 U.S. 471, 57 S.Ct. 541, 81 L.Ed. 748, rehearing denied in 301 U.S. 712, 57 S.Ct. 787, 81 L.Ed. 1365.

In the Atchison v. Scarlett case, supra, the court said, 300 U.S. at page 474, 57 S.Ct. at page 543:

"The regulation having been made by the commission Interstate Commerce Commission in pursuance of constitutional statutory authority, it has the same force as though prescribed in terms by the statute."

It is wholly competent for Congress to make the violation of the Commission's rules and regulations a crime, as it has done here. United States v. Grimaud, 1911, 220 U.S. 506, 31 S.Ct. 480, 55 L.Ed. 563....

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3 cases
  • Poremba v. Colvin
    • United States
    • U.S. District Court — Northern District of Illinois
    • January 2, 2014
    ...U.S. v. Dooley, 578 F.3d 582, 588 (7th Cir. 2009) (in interpreting a statute, courts cannot read words out); U.S. v. A&P Trucking Corp., 113 F. Supp. 549, 551 (D.N.J. 1953) (regulations construed under same canons as statutes). Moreover, the Claimant cites no authority to support his assump......
  • Samora v. United States
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • April 3, 1969
    ...45 S.Ct. 34, 69 L. Ed. 202 (1924); Singer v. United States, 323 U.S. 338, 65 S.Ct. 282, 89 L.Ed. 285 (1944); United States v. A & P Trucking Corp., 113 F.Supp. 549 (D.N.J.1953); United States v. Rosenberg, The search of the car was valid. Under 22 U.S.C.A. § 401 the customs agents were enti......
  • United States v. ILLINOIS CENTRAL RAILROAD COMPANY
    • United States
    • U.S. District Court — Western District of Tennessee
    • May 31, 1967
    ...M. Kraus & Bros., Inc. v. United States, 327 U.S. 614, 66 S.Ct. 705, 90 L.Ed. 894 (1946). The case of United States v. A & P Trucking Corp., et al., 113 F.Supp. 549 (D.C.N.J.1953) is particularly applicable here. The defendant was charged with violating an I.C.C. regulation which provided t......

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