United States v. Howitt, 6399-M-Cr.

• Decision Date: 17 May 1944
• Docket Number: No. 6399-M-Cr.,6399-M-Cr.
• Citation: 55 F. Supp. 372
• Parties: UNITED STATES v. HOWITT et al.
• Court: U.S. District Court — Southern District of Florida

55 F. Supp. 372

UNITED STATES v. HOWITT et al.

No. 6399-M-Cr.

District Court, S. D. Florida, Miami Division.

May 17, 1944.

Herbert S. Phillips, U. S. Atty., of Tampa, Fla., and Ernest L. Duhaime, Asst. U. S. Atty., of Miami, Fla., for plaintiff.

Riley & Dressler, of Miami, Fla., for defendants.

HOLLAND, District Judge.

Defendants have demurred to the indictment returned against them, which demurrer was argued before the Court on Saturday, May 13, 1944, and taken under advisement.

The contention of the defendants is that the Act is aimed at railroads as principals, with the agents, servants, officers, etc., (if a crime is committed by the principal) acting as aiders and abettors, and unless the railroad gets the benefit of the over-charge, the ticket agent cannot be prosecuted because then he, the agent, is a trespasser, an embezzler, or violator of some other State law. Stated differently, the objection is that the indictment does not specify facts from which it might be found that the carriers are guilty of the offense charged, and that under the Interstate Commerce Act of 1887, as amended, 49 U.S.C.A. § 1 et seq., defendants cannot commit an offense except as aiders and abettors. Defendants claim that they cannot be guilty as aiders and abettors, and that no crime is specified against the carrier.

Consideration of the case is facilitated by the historical note following Section 10, 49 U.S.C.A., as prepared by the publishers of United States Code Annotated. Section 10 as originally enacted is quoted verbatim. This is followed by the additional provisions enacted in 1889. In Section 2 of the original Interstate Commerce Act of 1887 special rates and rebates are prohibited, and the granting of same is deemed unjust discrimination, and declared to be unlawful. Section 10 deals with violations and penalties. By original Section 10 any director, officer, receiver, trustee, lessee, agent, or person acting for or employed by a corporation carrier are brought within the purview of the penalty provisions of the Act. Section 10 has been judicially construed not to include the corporation carrier itself, In re Peasley, C.C., 44 F. 271, 275, and Toledo, etc., Ry. Co. v. Pennsylvania Co., C.C., 54 F. 730, 736, 19 L.R.A. 387; and the provisions of the Elkins and Hepburn Acts, passed in 1903 and 1906 (U. S.C.A. 49, Sec. 41), dealing with the liability of corporation carriers and agents, would indicate legislative approval was given to this judicial consideration. My own thought is that "common carrier" as used in Section 10 included both corporate and non-corporate carriers, but I accept this judicial and legislative interpretation as a foreclosure of this question in my consideration of this case.

Considering original Section 10, and the use of the words "agent, or person acting for or employed by such corporation," I differ with the construction of these words as was placed by the District Court in United States v. Tozer, D. C., 37 F. 635, 637, decided in 1889. Judge Taft in writing the opinion in Toledo, etc., Ry. Co. v. Pennsylvania Co., C.C., 54 F. 730, text 736, had some doubts about the interpretation of these words as embracing the employee of the carrier. My own thought is that Section 10 by use of the indicated words intended to include such employees when they were managing officers, or managing agents, in the sense of vice-principalship. In the Toledo case, supra, the carrier was seeking an injunction against one Arthur and others, and it was held that every locomotive engineer of the defendant carrier is a "person employed by" a common carrier corporation subject to the provisions of the Interstate Commerce law. If this view is accepted, it is controlling in this case, and we could stop here with an overruling of the demurrer.

While there is judicial authority for accepting the conclusion that the ticket seller acting within the scope of his employment is a person employed by the carrier, that conclusion does not satisfy my reading of the Act. This is a statutory violation charged, and I first raise the question as to who was intended as a possible aider and abettor, and next ponder the question of the guilt of defendants as principals under 18 U.S.C.A. § 550. In my judgment aiders and abettors contemplated shippers, and with all reason could be said to include employees of the carrier. Aiding and abetting is by the statute made a substantive offense. It would seem that shippers who aided or abetted were included in the original Act since false billing by a shipper was introduced only by a proviso, and made false billing by a...