United States v. Chicago Express, 11564.

• Decision Date: 21 September 1956
• Docket Number: No. 11564.,11564.
• Citation: 235 F.2d 785
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. CHICAGO EXPRESS, Inc., Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

235 F.2d 785 (1956)

UNITED STATES of America, Plaintiff-Appellee, v. CHICAGO EXPRESS, Inc., Defendant-Appellant.

No. 11564.

United States Court of Appeals Seventh Circuit.

August 22, 1956.

Rehearing Denied September 21, 1956.

Paul W. Lashly, St. Louis, Mo., Lashly & Neun, Hiram W. Watkins, St. Louis, Mo., for appellant.

C. M. Raemer, U. S. Atty., Edward G. Maag, Asst. U. S. Atty., East St. Louis, Ill., for appellee.

Before MAJOR, FINNEGAN and SWAIM, Circuit Judges.

FINNEGAN, Circuit Judge.

An inspector of the Interstate Commerce Commission halted defendant's tractor, moving along Illinois Route 3, after that vehicle had been loaded with 33,210 pounds of paranitroanaline at the Monsanto Chemical Company's plant. After identifying himself to defendant's driver, that inspector asked for, and examined, the bill of lading, now government exhibit 1, covering the cargo then being hauled by Chicago Express, Inc., the defendant-common carrier. Exhibit 1, bearing defendant's driver's signature, is plainly and clearly stamped: "Class `B' Poison Label Applied". While making his roadside inspection of the tractor, but not its contents, the inspector observed that it did not carry two red rear reflectors required by I. C. C. regulations, nor was it placarded pursuant to 49 C.F.R. 77.823 showing transportation of a dangerous commodity. This visual examination resulted in the filing of a four-count¹ criminal information against Chicago Express, Inc., on which a jury returned a verdict of guilty under the first two counts and not guilty on the others. Defendant, fined $500 on the first count, and $100 on the second, has appealed its conviction.

The critical counts are bottomed on regulations promulgated by the Interstate Commerce Commission, which has undisputed authority for such purpose, flowing from 18 U.S.C. § 835, containing inter alia, this salient sentence:

"Whoever knowingly violates any such regulation shall be fined not more than $1,000 or imprisoned not more than one year, or both * * *." (Italicization added.)

By using the word "knowingly" in § 835, we think Congress, while describing a state of mind essential for responsibility, removed violations of the relevant regulations from the classification familiarly known as offenses malum prohibitum, public welfare, and civil offenses. Indeed, Mr. Justice Clark delivering the majority opinion in Boyce Motor Lines v. United States, 1952, 342 U.S. 337, 342, 72 S.Ct. 329, 331, 96 L. Ed. 367, involving 49 C.F.R. § 197.1(b) explained the impact of § 835 in this fashion:

"The statute punishes only those who knowingly violate the Regulation. This requirement of the presence of culpable intent as a necessary element of the offense does much to destroy any force in the argument that application of the Regulation would be so unfair that it must be held invalid. That is evident from a consideration of the requirement in this case. To sustain a conviction, the Government not only must prove that petitioner could have taken another route which was both commercially practicable and appreciably safer * * * than the one it did follow. It must also be shown that petitioner knew that there was such a practicable, safer route and yet deliberately took the more dangerous route through the tunnel, or that petitioner wilfully neglected to exercise its duty under the Regulation to inquire into the availability of such an alternative route."

Relying on virtually the same aspect of the Boyce opinion the First Circuit reversed a conviction for violating the identical regulation, now before us, in St. Johnsbury Trucking...