Atchison, T. & S.F. Ry. Co. v. United States

• Decision Date: 11 February 1909
• Docket Number: 1,490.
• Citation: 172 F. 194
• Parties: ATCHISON, T. & S.F. RY. CO. v. UNITED STATES.
• Court: U.S. Court of Appeals — Seventh Circuit

172 F. 194

ATCHISON, T. & S.F. RY. CO. v. UNITED STATES.

No. 1,490.

United States Court of Appeals, Seventh Circuit.

February 11, 1909

Rehearing Denied May 6, 1909.

Robert Dunlap, Lee F. English, and James L. Coleman, for plaintiff in error.

Edwin W. Sims, U.S. Atty., James H. Wilkerson and Philip J Doherty, for the United States.

Before GROSSCUP, BAKER, and SEAMAN, Circuit Judges.

GROSSCUP Circuit Judge (after stating the facts as above), delivered the opinion.

The principal question in this case is, Did the Circuit Court err in giving to the jury the peremptory instruction to find the plaintiff in error guilty? And this question turns chiefly upon this further question, Was the prosecution of plaintiff in error by the United States, in the case under review, the prosecution of a criminal offense? For if it be a criminal offense, plaintiff in error was entitled to the verdict of the jury respecting its guilt or innocence-- not a verdict in form only, but a verdict expressing the real judgment of the jury; for such is the guaranty of the sixth amendment of the Constitution of the United States, which provides that in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state and district wherein the crime shall have been committed. U.S. v. Taylor (C.C.) 11 F. 470; Starr v U.S., 153 U.S. 625, 14 Sup.Ct. 919, 38 L.Ed. 841.

The sections of the Safety Appliance Act involved are as follows:

'Sec. 4. That from and after the first day of July, 1895, until otherwise ordered by the Interstate Commerce Commission, it shall be unlawful for any railroad company to use any car in interstate commerce that is not provided with secure grab-irons or hand-holds in the ends and sides of each car for greater security to men in coupling and uncoupling cars.'

'Sec. 6. That any such common carrier using any locomotive engine, running any train, or hauling or permitting to be hauled or used on its line any car in violation of any of the provisions of this act, shall be liable to a penalty of $100 for each, and every such violation, to be recovered in a suit or suits to be brought by the United States District Attorney in the District Court of the United States having jurisdiction in the locality where such violation shall have been committed; and it shall be the duty of such District Attorney to bring such suits upon duly verified information being lodged with him of such violation having occurred; and it shall also be the duty of the Interstate Commerce Commission to lodge with the proper District Attorney information of such violation as may come to its knowledge. * * * '

The turning point of the inquiry, as already stated is, Was the prosecution under these sections a criminal prosecution as distinguished from a civil suit to recover a penalty? To begin with, let us eliminate some of the matters cited as criteria of what is a criminal and what a civil prosecution that are in fact no criteria.

The first, and the one evidently most relied upon is, that the act expressly provides that a common carrier violating the provision of the statute shall be liable to a penalty 'to be recovered in a suit or suits to be brought by the United States District Attorney in the District Court having jurisdiction'--the gist of the argument being that inasmuch as the statute seems to contemplate the proceedings as a 'suit,' as distinguished from a criminal prosecution, it is a civil suit and is not a criminal prosecution. But, as said by Mr. Justice Field in U.S. v. Choteau, 102 U.S. 611, 26 L.Ed. 246:

'Admitting that the penalty may be recovered in a civil action, as well as by a criminal prosecution-- it is still as a punishment for the infraction of the law. The term 'penalty' involves the idea of punishment, and its character is not changed by the mode in which it is inflicted, whether by a civil action or a criminal prosecution. * * * To hold otherwise would be to sacrifice a great principle to the mere form of procedure.'

To like effect is Chaffee v. U.S., 18 Wall. 516, 21 L.Ed. 908, and Wisconsin v. Pelican Ins. Co., 127 U.S. 265, 8 Sup.Ct. 1370, 32 L.Ed. 239.

Another criterion urged upon us as showing that the proceeding is civil and not criminal, is the instructions given to juries in certain cases (U.S. v. Central of Georgia R.R. Co (D.C.) 157 F. 893, U.S. v. C., R.I. & P.R.R. Co., by Judge McPherson of the Sothern District of Iowa, sitting by assignment in the District Court of the United States for the Western District of Missouri, 173 Fed. . . . , and U.S. v. C. Gt. W.R.R. Co., by Judge Reed of the Northern District of Iowa, 162 F. 775) that proof beyond a reasonable doubt was not required-- decisions that are sound enough, the...