Southern Ry. Co. v. United States

• Decision Date: 15 February 1937
• Docket Number: No. 7971.,7971.
• Citation: 88 F.2d 31
• Parties: SOUTHERN RY. CO. v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

88 F.2d 31 (1937)

SOUTHERN RY. CO. v. UNITED STATES.

No. 7971.

Circuit Court of Appeals, Fifth Circuit.

February 15, 1937.

Harry H. Smith, of Mobile, Ala., for appellant.

Francis H. Inge, U. S. Atty., of Mobile, Ala., for the United States.

Before FOSTER, HUTCHESON, and HOLMES, Circuit Judges.

FOSTER, Circuit Judge.

Appellant, Southern Railway Company, was convicted of violating the penal provisions of section 18 of the rivers and harbors act of March 3, 1899 (33 U.S.C.A. § 502) on an information which charged willful refusal and failure to obey an order of the Secretary of War to alter a railroad bridge, owned and controlled by it, over the Tombigbee river at Jackson, Ala. A fine of $1,000 was imposed. Error is assigned to the overruling of a demurrer.

The information recited the order of the Secretary of War, which specified the alterations to be made, and alleged:

"That notwithstanding the said notices to make said alterations on said bridge, the said defendant, the Southern Railway Company did wilfully fail and refuse and still continues to wilfully fail and refuse to make said alterations so prescribed in said notices and to comply with the lawful orders of the said Secretary of War."

In substance, the act authorizes the Secretary of War, for good cause, upon reasonable notice, to order specified alterations of an existing bridge over a navigable river so that it will not be an unreasonable obstruction to commerce on the river. It does not in terms authorize him to order the removal of a bridge. The right of appeal is granted to the United States as well as the defendant when a suit is brought to enforce the penalty. As to the enforcement of the penalty, the act provides as follows:

"If the persons, corporation, or association owning or controlling any railroad or other bridge shall, after receiving notice to that effect, as hereinbefore required, from the Secretary of War, and within the time prescribed by him willfully fail or refuse to remove the same or to comply with the lawful order of the Secretary of War in the premises, such persons, corporation, or association shall be deemed guilty of a misdemeanor and on conviction thereof shall be punished by a fine." For greater certainty, the section is set out in full in the margin.¹

Appellant contends that the statute must be strictly construed; that the offense consists of two elements, one, failure to comply with the order; two, failure to remove the bridge; and that the information is fatally defective in not charging failure to remove the bridge as well as refusal to alter it.

The validity of the law has been upheld in the following cases: Union Bridge Co. v. U. S., 204 U.S. 364, 27 S.Ct. 367, 51 L.Ed. 523; Monongahela Bridge Co. v. U. S., 216 U.S. 177, 30 S.Ct. 356, 54 L.Ed. 435; Hannibal Bridge Co. v. U. S., 221 U. S. 194, 31 S.Ct. 603, 55 L.Ed. 699; Louisville Bridge Co. v. U. S., 242 U.S. 409, 37 S.Ct. 158, 61 L.Ed. 395. In none of these cases was the precise question here raised considered or decided, but examination of the opinions indicates that the information in each case was in practically the same form as in the case at bar.

The general rule is that criminal statutes are to be strictly construed and a criminal information, like an indictment, must charge every element of the crime, in order that the accused and the court may know the exact offense intended to be charged, and the record be sufficient to support a plea of former acquittal or conviction. Evans v. U. S., 153 U.S. 584, 14 S. Ct. 934, 38 L.Ed. 830. But it is also the general rule that an exception or proviso constituting a defense need not be negatived in an indictment. McKelvey v. U. S., 260 U.S. 353, 43 S.Ct. 132, 67 L.Ed. 301.

That part of the statute providing for a penalty and its enforcement is somewhat ambiguous. The primary purpose of the law is to accomplish the removal of an unreasonable obstruction to navigation by alteration of an existing bridge without resorting to the drastic action of demolishing the bridge. It necessarily follows that if a bridge over a navigable stream is entirely removed, the object of the law is accomplished and the removal would be a complete defense to an action brought to enforce the penalty, without any statute to that effect.

Section 18 has civil features as well as criminal. While it provides for enforcement of the order of the Secretary of War by a proceeding in the nature of a criminal information, the right of appeal given to the United States injects a civil feature. In respect of this statute, the rule of strict construction is considerably weakened. But whether the statute be considered civil or criminal in its nature, it must be construed with common sense, so as to give effect to the intention of Congress. U. S. v. Alford, 274 U.S. 264, 47 S.Ct. 597, 71 L.Ed. 1040; U. S. v. Giles, 57 S.Ct. 340, 81 L.Ed. ___, decided February 1, 1937. As we construe the statute, it does not create two offenses or one offense consisting of two elements. It plainly creates only the offense of willful refusal to comply with a valid order of the Secretary of War to alter a bridge which is an unreasonable obstruction to navigation. So construed, it is clear that the provision to the effect that the offense is not committed unless the defendant had also willfully failed or refused to remove the bridge is to be considered an exception providing a defense. Furthermore, considering the evidence in the record, wherein it was stipulated the alterations had not been made and the bridge had not been removed, it is certain that the omission from the information of an allegation charging that the railroad had not removed the bridge did not affect the substantial rights of appellant. If the lower court erred, it was upon a technical matter of pleading. To reverse and remand so as to permit an amendment of doubtful necessity would be useless. 28 U. S.C.A. § 391; 18 U.S.C.A. § 556; Hagner v. U. S., 285 U.S. 427, 52 S.Ct. 417, 76 L. Ed. 861.

This assignment does not present reversible error.

Error is assigned to the denial of a motion for verdict. On this appellant contends that it was not shown that the Southern Railway Company either owns or controls the bridge; that it was shown the railroad was financially unable to make the alterations, therefore did not "willfully" disobey the order; that it was shown that the alterations ordered required the construction of a new bridge, which could not be done without express consent of Congress; that the...