United States v. Boyce Motor Lines, Cr. No. 330-49.

• Court: United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
• Writing for the Court: Joseph C. Glavin, Jersey City, N. J., for defendant
• Citation: 90 F. Supp. 996
• Parties: UNITED STATES v. BOYCE MOTOR LINES, Inc.
• Decision Date: 15 June 1950
• Docket Number: Cr. No. 330-49.

90 F. Supp. 996

UNITED STATES
v.
BOYCE MOTOR LINES, Inc.

Cr. No. 330-49.

United States District Court D. New Jersey.

June 15, 1950.

90 F. Supp. 997

Charles J. Tyne, Asst. U. S. Atty., Newark, N. J., for Government.

Joseph C. Glavin, Jersey City, N. J., for defendant.

SMITH, District Judge.

The indictment in this case contains six counts, each of which charges the defendant with a violation of certain of the regulations promulgated by the Interstate Commerce Commission pursuant to Section 835 of Title 18 United States Code Annotated. The defendant moves to dismiss the indictment and urges in support of the motion several grounds herein discussed.

90 F. Supp. 998

Statute

"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, oxidizing materials, corrosive liquids, compressed gases, and poisonous substances, which shall be binding upon all common carriers engaged in interstate or foreign commerce which transport explosives or other dangerous articles by land, and upon all shippers making shipments of explosives or other dangerous articles via any common carrier engaged in interstate or foreign commerce by land or water.

"The commission, of its own motion, or upon application made by any interested party, may make changes or modifications in such regulations, made desirable by new information or altered conditions.

"Such regulations shall be in accord with the best-known practicable means for securing safety in transit, covering the packing, marking, loading, handling while in transit, and the precautions necessary to determine whether the material when offered is in proper condition to transport.

* * * * * *

"Whoever knowingly violates any such regulation shall be fined not more than $1,000 or imprisoned not more than one year, or both; and, if the death or bodily injury of any person results from such violation, shall be fined not more than $10,000 or imprisoned not more than ten years, or both." 18 U.S.C.A. § 835.

Counts One, Three And Five

These counts were apparently intended to charge violations of the following regulation: "Drivers of motor vehicles transporting any explosive, inflammable liquid, inflammable compressed gas, or poisonous gas shall avoid, SO FAR AS PRACTICABLE, and, WHERE FEASIBLE, by prearrangment of routes, driving into or through congested thoroughfares, places where crowds are assembled, street car tracks, tunnels, viaducts, and dangerous crossings." (Emphasis by the Court). 49 C.F.R. 238, 1949 Ed., Section 197.1(b).

The defendant contends that the quoted regulation is invalid because of its failure to define an "ascertainable standard of guilt." We agree with this contention. The regulation clearly imposes upon the "drivers of motor vehicles" the duty to avoid "congested thoroughfares, places where crowds are assembled, street car tracks, tunnels, viaducts, and dangerous crossings," only "SO FAR AS PRACTICABLE, and, WHERE FEASIBLE." The duty is not absolute but is limited; it must be discharged only so far as practicable and where feasible. It is our opinion that these very terms are so vague and indefinite as to make the standard of guilt conjectural. Whether or not a particular course of conduct is practicable may depend, as it frequently does, on individual judgment; that which seems practicable to one may not seem practicable to another.

It was held by the Supreme Court in the case of Connally v. General Construction Co., 269 U.S. 385, at page 391, 46 S.Ct. 126, at page 127, 70 L.Ed. 322: "That the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties is a well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law; and a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law." It is further stated in the opinion of the Court, 269 U.S. at page 393, 46 S.Ct. at page 128: "A criminal statute cannot rest upon an uncertain foundation. The crime, and the elements constituting it, must be so clearly expressed that the ordinary person can intelligently choose, in advance, what course it is lawful for him to pursue." See also United States v. Cohen Grocery Co., 255 U.S. 81, 41 S.Ct. 298, 65 L.Ed. 516, 14 A.L.R. 1045; Lanzetta v. State of New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888; Winters v. People of State of New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840; but see

90 F. Supp. 999

United States v. Alford, 274 U.S. 264, 47 S.Ct. 597, 71 L.Ed. 1040; Sproles v. Binford, 286 U.S. 374, 52 S.Ct. 581, 76 L.Ed. 1167; United States v. Ragen, 314 U.S. 513, 62 S.Ct. 374, 86 L.Ed. 383; United States v. Sullivan, 332 U.S. 689, 68 S.Ct. 331, 92 L.Ed. 297. It is our opinion that the four cases in the latter group are distinguishable but we see no reason to discuss the distinctions

The views expressed by the Supreme Court in the case of Kraus & Bros. v. United States, 327 U.S. 614, 66 S.Ct. 705, 90 L.Ed. 894, are apposite. The Court, passing on the validity of a regulation promulgated by the Price Administrator pursuant to the Emergency Price Control Act,...