Pittsburgh, Cincinnati, Chicago And St. Louis Railway Co. v. The State

• Decision Date: 09 April 1909
• Docket Number: 21,217
• Citation: 87 N.E. 1034,172 Ind. 147
• Parties: Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company v. The State of Indiana
• Court: Indiana Supreme Court

87 N.E. 1034

172 Ind. 147

Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company v. The State of Indiana

No. 21,217

Supreme Court of Indiana

April 9, 1909

From Criminal Court of Marion County (36,256); William Irvin Special Judge.

Prosecution by The State of Indiana against the Pittsburgh, Cincinnati Chicago and St. Louis Railway Company. From a judgment of conviction, defendant appeals. Affirmed. (Appealed to United States Supreme Court, see U.S. .)

Affirmed.

Samuel O. Pickens and Owen Pickens, for appellant.

James Bingham, Attorney-General, Martin Hugg, William H. Thompson Edward M. White and Alexander G. Cavins, for the State.

OPINION

Jordan, C. J.

The State of Indiana instituted this prosecution by affidavit against appellant for a violation of the provisions of an act of the General Assembly approved February 13, 1907 (Acts 1907, p. 18, §§ 5295-5298 Burns 1908), known as the "full crew act." The title of the act is: "An act entitled an act concerning railroads and to better protect the lives of railway employes and the traveling public, and providing penalties for the violation thereof." Omitting the enacting clause, the statute in question is as follows: "Section 1. That it shall be unlawful for any railroad company doing business in the State of Indiana, that operates more than four 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 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 freight-train, 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 freight-cars or other cars, exclusive of caboose and engine, with less than a full crew for such a train, consisting of five 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.

"Section 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 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).

"Section 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 one and two of this act, shall be guilty of a misdemeanor, and upon conviction shall be fined not less than $ 100 nor more than $ 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.

"Section 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 railway company "is, and was at the times hereinafter stated, a railway 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, Marion county, 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 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, consisting of five and more cars, known as train No. 11, carrying the mails of the United States of America for hire; that on or about April 24, 1907, defendant did then and there operate and run over its said railway 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 from Columbus, Ohio, to the eastern boundary line of Indiana, and thence westward over its said railway 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 railway 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, run and operate its said train on, over and along its said railway 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, run and operate its said mail-train on, over and along its said railway in said Marion county without having as part of its said crew a flagman, contrary to the form of the statutes," etc.

The second count 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, there being no brakeman in said crew. Defendant 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: (1) 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 employes and the traveling public, and providing penalties for the violation thereof,' approved February 13, 1907, being chapter eleven of the acts of the sixty-fifth session of said General Assembly, is void 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 article 1, § 8, of the Constitution of the United States, and the laws of the United States made thereunder and in pursuance thereof. (2) That section three 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 sections of said act, taken severally and separately, as to a train's 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 one and two 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 Pittsburgh, Cincinnati, Chicago and 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 railway extending from the city of Pittsburg, 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 Pittsburg with a line of railway 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 railway 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 said city of Pittsburg to said city of Indianapolis 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...