Pittsburgh, C., C. & St. L. Ry. Co. v. State

• Decision Date: 09 April 1909
• Docket Number: No. 21,217.,21,217.
• Citation: 172 Ind. 147,87 N.E. 1034
• Court: Indiana Supreme Court
• Parties: PITTSBURGH, C., C. & ST. L. RY. CO. v. STATE.

172 Ind. 147

87 N.E. 1034

PITTSBURGH, C., C. & ST. L. RY. CO.

v.STATE.

No. 21,217.

Supreme Court of Indiana.

April 9, 1909.

Appeal from Criminal Court, Marion County; Wm. Irvin, Special Judge.

The Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company was convicted of violating the full crew act, and it appeals. Affirmed.

Saml. O. Pickens and Owen Pickens, for appellant. James Bingham, Martin Hugg, W. H. Thompson, Ed. M. White, and A. G. Cavins, for the State.

JORDAN, C. J.

The state of Indiana instituted this prosecution by affidavit against appellant railway company for a violation of the provisions of an act of the General Assembly approved February 13, 1907 (see Acts 1907, p. 18, c. 11), known as the “Full Crew Statute.” The act is entitled: “An act concerning railroads and to better protect the lives of railway employés and the traveling public, and providing penalties for the violation thereof.” Omitting the enacting clause, the statute in question is as follows:

“That it shall be unlawful for any railroad company doing business in the state of Indiana, that operates more than four (4) freight trains in every twenty-four hours, to operate over its road or any part thereof, or suffer or permit to be run over its road outside of the yard limits, any freight train consisting of more than fifty (50) freight or other cars, exclusive of caboose and engine, with less than a full train crew, consisting of six persons, to-wit: One conductor, one engineer, one fireman, two brakemen and one flagman (such flagman to have had at least one year's experience in train service), and it shall be unlawful for any such railroad company that operates more than four (4) freight trains in every twenty-four hours, to run over its road, or any part thereof, outside of the yard limits, any freight train consisting of less than fifty (50) freight cars or other cars, exclusive of caboose and engine, with less than a full crew for such a train, consisting of five (5) persons, to-wit: One conductor, one engineer, one fireman, one brakeman, and one flagman: Provided, however, that a light engine without cars shall have the following crew, to-wit: One conductor, one flagman, one engineer and one fireman.

“Sec. 2. That it shall be unlawful for any railroad company doing business in the state of Indiana to run over its road or any part of its road, outside of yard limits, any passenger, mail or express train, consisting of five (5) or more cars, with less than a full passenger crew, consisting of one engineer, one fireman, one conductor, one brakeman and one flagman (said brakeman or flagman shall not be required to perform the duties of baggage masters or express messengers).

“Sec. 3. That any railroad company doing business in the state of Indiana, who shall send out on its road, or cause to be sent out on its road, any train which is not manned in accordance with sections 1 and 2 of this act, shall be guilty of a misdemeanor, and upon conviction shall be fined not less than one hundred dollars ($100) nor more than five hundred dollars ($500) for each offense, and such company shall be liable for any damages caused by the violation of any of the provisions of this act.

“Sec. 4. It shall be the duty of the Board of Railroad Commissioners to have this law enforced.”

The affidavit upon which the prosecution rests is in two counts. The first charges that appellant railroad company “is, and was at the times hereinafter stated, a railroad company duly incorporated under and pursuant to the laws of the state of Indiana, and was then and there engaged in doing business as such in the state of Indiana, and was then and there operating its road in and from the city of Indianapolis, in Marion county, in the state of Indiana, eastward through said county, and thence through the counties of Hancock, Henry, and Wayne, in said state, to the eastern boundary of said state, and from thence, ran and operated its line of railroad to the city of Columbus, in the state of Ohio; that it was then and there running over its said road from said city of Columbus to and in said city of Indianapolis, a mail train, known as its train No. 11, carrying the mails of the United States of America for hire, consisting of five and more mail cars, and on or about the 24th day of April, 1907, did then and there operate and run over its said railroad its said mail train No. 11, consisting of five and more mail cars, to wit, seven mail cars, carrying thereon for hire the mails of the United States of America, and did then and there carry for hire the mails of the United States on said train, known as No. 11, from said city of Columbus, in the state of Ohio, to the eastern boundary line of the state of Indiana, and thence westward over its said railroad through the counties of Wayne, Henry, and Hancock, in the state of Indiana, to the eastern boundary line of said Marion county to and in said city of Indianapolis, and did then and there run and operate its said mail train from said city of Columbus on, over, and along its said railroad to the eastern boundary line of the state of Indiana, and from thence unlawfully ran and operated its said mail train westward through said counties of Wayne, Henry, and Hancock to the eastern boundary line of said Marion county, and from thence unlawfully ran and operated its said mail train to and in said city of Indianapolis, with less than a full passenger crew in charge of, caring for, and operating its said mail train; and the defendant did then and there unlawfully run and operate its said mail train on, over, and along its said railroad from said eastern boundary line of the state of Indiana to the eastern boundary line of said Marion county, and did then and there unlawfully send out and cause to be sent out, run, and operate its said train on, over, and along its said railroad from said eastern boundary line of said Marion county to and in said city of Indianapolis, in said Marion county, with only the following crew in charge of, caring for, and operating its said mail train, to wit, one engineer, one fireman, one conductor, and one brakeman; and that the defendant did then and there unlawfully send out and cause to be sent out, run and operate its said mail train on, over, and along its said railroad in said county of Marion without having as part of its said crew a flagman, contrary to the form of the statutes,” etc. The second is virtually the same as the first, except that therein it is alleged that the crew of the train in question was composed of one engineer, one fireman, one conductor, and one flagman only, there being no brakeman in said crew.

Appellant filed a written motion to quash each of the counts for the following reasons: “That the facts stated in said count of the affidavit do not constitute a public offense: First. That the act of the General Assembly of the state of Indiana, entitled ‘An act entitled an act concerning railroads and to better protect the lives of railway employés and the traveling public, and providing penalties for the violation thereof,’ approved February 13, 1907, being chapter 11 of the Acts of the Sixty-Fifth Session of said General Assembly, is void in so far as it affects the regulation, operation, and control of said train known as No. 11, described in said count of the affidavit, in that said act is in violation of section 8 of article 1 of the Constitution of the United States, and the laws of the United States made thereunder and in pursuance thereof. Second, that section 3 of said act, attempting to provide a penalty for the violation of the provisions of said act, is illegal and void, because it prescribes no penalty for the violation of any of the provisions of the first or second section of said act, taken severally and separately as to a train running in violation thereof, but prescribes a penalty only where a train is sent out on the road of a railroad company which is not manned in accordance with both sections 1 and 2 of said act; the crew prescribed for a train by the first section of said act being different from the crew prescribed for a train by the second section of said act.”

The motion to quash the second count of the affidavit is predicated upon the same grounds as is that to quash the first. This motion to quash was overruled and appellant excepted. It waived arraignment and pleaded not guilty, and also filed a special plea to each count. This plea, omitting the formal parts, is as follows:

“The defendant, the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company, for its special plea to the first count of the affidavit herein, says that at all times mentioned in said count of said affidavit said defendant was a corporation legally organized and existing under the laws of the states of Pennsylvania, West Virginia, Ohio, Indiana, and Illinois, and owned and operated a line of railroad extending from the city of Pittsburgh, in the state of Pennsylvania, westwardly through the states of West Virginia and Ohio, and through the city of Columbus, in the state of Ohio, to the city of Indianapolis, in the state of Indiana, and connecting at the city of Pittsburgh with a line of railroad extending eastwardly through the states of Pennsylvania and New Jersey to the city of New York, in the state of New York, and connecting at the city of Indianapolis with a line of railroad extending westwardly through the states of Indiana and Illinois to the city of St. Louis, in the state of Missouri. That during said times the defendant owned and was operating over its said line of railroad from the said city of Pittsburgh to the said city of Indianapolis the said mail train described in said count of said affidavit known as train No. 11, which consisted of from five to seven United States postal cars, which train carried no passengers, but was engaged exclusively in carrying the United States mails under contract between the Post Office Department of the...