United States v. Illinois Cent. R. Co.

• Decision Date: 27 March 1909
• Docket Number: 1,854.
• Citation: 170 F. 542
• Parties: UNITED STATES v. ILLINOIS CENT. R. CO.
• Court: U.S. Court of Appeals — Sixth Circuit

170 F. 542

UNITED STATES v. ILLINOIS CENT. R. CO.

No. 1,854.

United States Court of Appeals, Sixth Circuit.

March 27, 1909

George Du Relle and P. J. Doherty, for plaintiff in error.

E. F Trabue, for defendant in error.

Before SEVERENS, Circuit Judge, and KNAPPEN and SANFORD, District judges.

SEVERENS Circuit Judge.

This is an action in the nature of a common-law action of debt brought in the District Court by the United States against the Illinois Central Railroad Company to recover penalties of $100 each for 22 alleged infractions of Safety Appliance Act March 2, 1893, c. 196, Sec. 6, 27 Stat. 532 (U.S. Comp. St. 1901, p. 3175), each offense being set out in a separate count. Some of these counts were for hauling cars in interstate traffic with defective automatic couplings, some with defective grab irons and some with drawbars not on the proper level above the track. There was a plea of not guilty to each count, and special matters of defense were alleged in the several answers. The issues were tried by a jury. A stipulation as to certain facts was made by the attorneys for the parties and filed, of which the following is a copy:

'Defendant for the purpose of this case, admits:

'(1) That it is a corporation doing business in Illinois and Kentucky, and is a common carrier, transporting over its railroad in Kentucky both cars carrying interstate commerce and cars carrying shipments wholly intrastate.

'(2) That each of the cars in paragraphs 1, 5, 6, 7, 10, 11, 12, 14, 15, 16, 17, 18, 19, 20, 21, and 22 contained interstate shipments; that each of the cars mentioned in paragraphs 4, 9, and 13 transported shipments purely intrastate, i.e., from one point in Kentucky to another point in Kentucky, and that each one of said cars was hauled by defendant in a train in which there was at least one other car that at the time contained an interstate shipment; and that the engines mentioned in paragraphs 2, 3, and 8 were used by defendant wholly between points in Kentucky, to wit, between Louisville and Central City, and that said engines hauled trains at the times mentioned in said paragraphs 2, 3, and 8 composed of cars, some of which contained traffic purely intrastate, and each one of which trains contained the car mentioned in said paragraphs respectively containing interstate freight.'

Evidence bearing upon the issues was adduced by the parties, and the jury, having been instructed by the court, rendered a verdict for the plaintiff on seven of the counts in the sum of $100 each, and for the defendant on the other 15. The plaintiff brings the case here on a writ of error.

The first question arises upon a motion to dismiss the writ upon the ground that the proceedings in the court below were essentially of a criminal nature, and that the United States cannot have a writ of error upon proceedings of that description. It seems proper to advert to certain fundamental considerations upon which the procedure in such cases as this rests, and upon which the determination of the question here raised depends.

It is urged by counsel for the defendant that the punishment prescribed by the sixth section of this act is a penalty, that the proceeding for its enforcement is criminal in its nature, and that therefore the trial of the cause is to be governed by the rules of evidence, and the right to have a review in an appellate court is to be determined by the law applicable to a criminal prosecution. It may be admitted that in a sense the punishment prescribed by the act is a penalty. But penalties are of different sorts. They may consist of a sum of money which the offender shall pay in atonement for his forbidden act-- in other words, of a fine-- or shall suffer some other form of forfeiture of property, or they may consist of the infliction of the corporal punishment of the guilty party, or they may consist of both of these punishments. The public through its government may employ, within certain limitations, such of these various forms of punishment as it may deem just and necessary to the common welfare. Offenses range in respect of their turpitude from the smallest to the greatest, and the theory of punishment is that it shall be measured by the gravity of the offense. While it is true that the Constitution and laws of the country are prescribed and enforced for the protection of property as well as of the person, yet they regard with greater concern the protection of the latter. And so, when for small offenses a pecuniary punishment is prescribed as the atonement, it has long been the practice to employ a civil action for its recovery. Assuming that the punishment is just, the consequences to the defendant are not far different from those which happen in civil actions, only it is the government which is the plaintiff. The consequences of the judgment are substantially the same to him as if the penalty was bestowed upon a private party, except with regard to the scintilla of interest he has in the public revenue. If the public may, for a sufficient reason, compel the defendant to pay a fine, it is of little importance to him whether the government keeps it for its own purposes or turns it over to another who is already indemnified. Mere academic discussions of the theory of the practice by which it is done do not interest him. Probably in all the systems of law in the state and federal governments there are instances where to civil liabilities there are attached penalties, there being something wanton or gross or otherwise peculiar to the liability. Yet such penalties are enforced in civil actions.

A very cogent, not to say persuasive, argument was addressed to us, founded upon the prohibition of the Constitution against subjecting a person to be twice put in jeopardy for the same offense. It is urged that this prohibition extends to a review of the trial in an appellate court; and, further, that it applies not only to prosecutions for crimes, but to prosecutions for misdemeanors also. And we must suppose that it is thought that the protection afforded thereby extends as well to artificial as to private persons; for the defendant here is a corporation. And if a private person may invoke it in a case when only the forfeiture of property is involved, there is color for the claim that a corporation may invoke it in a like case. This seems to us to be pushing the doctrine a long way and beyond its hitherto recognized scope.

We held in United States v. Baltimore & O.S.W.R.R. Co., 159 Feb. 33, 38, 86 C.C.A. 223, and again in the case of United States v. Louisville & Nashville R. Co. (recently decided) 167 F. 306, that the government was entitled to prosecute a writ of error from this court to the District Court to review the proceedings in an action of debt to recover a pecuniary penalty which alone was the punishment prescribed. To this ruling we adhere. The result is that the motion to dismiss must be overruled.

The principal questions upon the merits are two, and they arise upon the instructions given by the court to the jury: First. Whether, on the trial of an action such as this, the rule of the criminal law that the evidence must satisfy the jury of the guilt of the respondent beyond a reasonable doubt applies. Second. Whether the judge correctly stated the law to the jury when he said (as he did in substance) that if the defendant equipped the cars with the proper appliances as required by the act, and thereafter exercised the utmost degree of care and diligence in the discovery and correction of defects therein which could be expected of a highly prudent man under similar circumstances, it would have discharged its duty, and would not be liable to the penalty prescribed by the statute.

Respecting the first of these questions, we have little to add to what we said in United States v. Baltimore & O.S.W.R. Co., supra, and the observations already made in discussing the motion to dismiss the writ of error. It is impossible for us to distinguish this case upon any substantial ground, so far as concerns the present question, from that of United States v. Zucker, 161 U.S. 475, 16 Sup.Ct. 641, 40 L.Ed. 777, where, on the trial of an action by the United States to recover the value of merchandise forfeited by a fraudulent importation, the case turned upon the admissibility of certain evidence. If the action was of a criminal nature, it was inadmissible. If it were not, it should have been received. The question was much discussed by Mr. Justice Harlan, and the result was that the court held that the evidence should have been received, and this upon the ground that it was not a criminal proceeding.

We have referred to instances where, in the enforcement of civil liabilities, penalties incurred by wrongful neglect to discharge them are also enforced; and yet we are not aware that it has ever been supposed that the rule of the criminal law respecting the degree of proof was to be imported into the trial of the civil action. The giving of such a remedy as that specified by the sixth section, without any restriction or condition, imports an action at law with the customary incidents of such an action. Being a remedy which does not touch the person, there is no such urgency for protecting him as to require that the rules for the conduct of a civil suit should be displaced and those of a criminal proceeding be taken in. We think the law does not sanction such an anomalous compound in legal proceedings. If, indeed, there be no substantial distinction between a case where the government retains the fine and one where it is given to a private party in excess of his otherwise legal right, there are decisions in point which hold that where the suit is a civil action for a penalty the evidence is sufficient if it preponderates, and...