United States v. Illinois Cent. R. Co.

• Decision Date: 12 November 1915
• Docket Number: 50.
• Parties: UNITED STATES v. ILLINOIS CENT. R. CO.
• Court: U.S. District Court — Northern District of Iowa

234 F. 433

UNITED STATES v. ILLINOIS CENT. R. CO.

No. 50.

United States District Court, N.D. Iowa, Central Division.

November 12, 1915

F. A O'Connor, U.S. Atty., of New Hampton, Iowa, and Monroe C List, Sp. Asst. U.S. Atty., of Washington, D.C.

Helsell & Helsell, of Ft. Dodge, Iowa, for defendant.

REED District Judge.

This suit is to recover from the defendant railroad company, a common carrier in interstate commerce, $7,500 for 15 alleged violations of the Hours of Service Act. The defendant denies any violation of the act. The cause is submitted upon the pleadings and an agreed statement of facts, which statement is on file with the clerk and is referred to as part hereof and contained in a note attached hereto. ^[1]

The road of the defendant company in Iowa is crossed at Manson, Fonda, and Rockwell City by other railroads, and at each of these places an interlocking switch has been installed, which is operated by its employes from towers erected at short distances from the station or depot building at each place, which are necessary to the safe operation of its road at such stations and were not erected and are not used to evade the provisions of the Hours of Service Act. The applicable provisions of the Act of Congress approved March 4, 1907, effective one year thereafter (34 Stat. 1415), commonly called the Hours of Service Act, are as follows:

'Sec. 2. That it shall be unlawful for any common carrier, its officers or agents, subject to this act to require or permit any employe subject to this act to be or remain on duty for a longer period than sixteen consecutive hours: * * * Provided, that no operator, train dispatcher, or other employe who by the use of the telegraph or telephone dispatches, reports, transmits, receives, or delivers orders pertaining to or affecting train movements shall be required or permitted to be or remain on duty for a longer period than nine hours in any twenty-four hour period in all towers, offices, places and stations continuously operated night and day, nor for a longer period than thirteen hours in all towers, offices, places, and stations operated only during the daytime. * * * ' Comp. St. 1913, Sec. 8678.

For a violation of the foregoing provisions the carrier, or any officer or agent who requires or permits such violation, is liable to a penalty not exceeding $500 for each and every such violation.

The language of the proviso fixing the time and place when the employes therein named may be kept on duty is not entirely clear, and the phrases 'towers, offices, places and stations,' and 'continuously operated night and day' may admit of different interpretations; but the Interstate Commerce Commission, in its conference or administrative ruling No. 287 of March 16, 1908, said:

'(f) The phrase 'towers, offices, places and stations' is interpreted to mean particular and definite locations. The purpose of the law and of the proviso for 9 hours of service may not be avoided by erecting offices, stations, depots, or buildings in close proximity to each other and operating from one a part of the day while the other is closed, and vice versa.

'(g) The phrase 'continuously operated night and day' is interpreted as applying to all offices, places, and stations operated during a portion of the day and a portion of the night a total of more than 13 hours; and the phrase 'operated only during the daytime' refers to stations which are operated not to exceed 13 hours in a 24-hour period, and is not considered as meaning that the operator thereat may be employed only during the daytime.'

This interpretation of the proviso, though not controlling, is quite persuasive, is entitled to much weight, and may well be followed, unless it clearly appears from the plain language of the enactment to be erroneous. See United States v. Grand Rapids & Indiana Ry. Co., 224 F. 667, 140 C.C.A. 177, and cases there cited; also Chicago, Rock Island & Pacific R.R. Co. v. United States, 226 F. 27, 141 C.C.A. 135 and cases cited (C.C.A.7th Circuit).

The purpose of the act, as indicated by its title, is 'to promote the safety of employes and travelers upon railroads by limiting the hours of service of employes thereon,' and in Baltimore & Ohio R.R. v. Interstate Commerce Commission, 221 U.S. 612, at page 619, 31 Sup.Ct. 621, at page 625, 55 L.Ed. 878, it is said:

'The length of hours of service has direct relation to the efficiency of the human agencies upon which protection to life and property necessarily depends. This has been repeatedly emphasized in official reports of the Interstate Commerce Commission, and is a matter so plain as to require no elaboration. * * * '

To accomplish this:

'It was also competent to consider, and to endeavor to reduce, the dangers incident to the strain of excessive hours of duty on the part of engineers, conductors, train dispatchers, telegraphers, and other persons embraced within the class defined by the act.'

The test, therefore, for the period that employes of the class named in the proviso may be kept on duty during a 24-hour period without violating this statute, is the time during which the office, station, or place where the employe is to perform such duties is kept open for the performance thereof during a 24-hour period. It is not the number or frequency of such train orders that may be transmitted or received during a given period that determines the time the employe may be kept on duty during the 24 hours; but it is the necessity of the transmission or receipt of such orders at specified stations where employes of this class may be on duty to properly perform this service during the day and night, and that is determined by the fact that the carrier requires that such orders be transmitted and received at such stations. If the traffic of the carrier is such that it deems it necessary that train orders be transmitted or received by the use of the telegraph or telephone at certain stations during the day and night, it must limit the hours of service of its employes who are to perform this service in interstate traffic at such stations to not exceed 9 hours in the aggregate in any 24-hour period. This is the plain reading of the enactment, and is the interpretation thereof by the Interstate Commerce Commission.

Whether the place where the employe is to perform this duty is in a station building, or above it, or a short distance from it, or in all of them at different times during the same period of service, is quite immaterial. That may be arranged to suit the convenience of the carrier, without making two separate and distinct places for the transmission and receipt of such orders; and, whatever the arrangement may be in this respect, the carrier who adopts this method of transmitting and receiving train orders for trains passing such a station may not lawfully permit or require the employe to be or remain on duty for a longer period than 9 hours in the aggregate during a 24-hour period, if the station is one continuously operated night and day for the transmission and receipt of such orders, or 13 hours at all such places operated only during the day. It may be that in certain seasons of the year and in certain localities the place cannot be operated for 13 hours by the light of day only, nor 9 hours in what is commonly called the nighttime; but, dividing the day of 24 hours into periods of 12 hours each, from 6 a.m. to 6 p.m., and from 6 p.m. to 6 a.m. as is commonly done, there need be no difficulty in determining the daytime from the night within the contemplation of this enactment.

It clearly appears from the agreed statement of facts that each of the stations where it is alleged in the several counts of the petition that the employes of the defendant were required to be and remain on duty in excess of 9 hours in a 24-hour period was a station and place continuously operated night and day for the transmission and receipt by telegraph or telephone of train orders affecting the movement of trains passing each of said stations, and that each of said employes was regularly engaged in that service at the station where he was so employed, and remained on duty in excess of 9 hours in each 24-hour period that he was on duty. It follows, therefore, that the defendant has incurred the penalty prescribed by the act upon each count of the petition.

It appears from the correspondence between the officials of the defendant company and the Interstate Commerce Commission in 1908, in regard to the defendant's telegraph service at Matteson, Ill. (made a part of the agreed statement of facts), that the Commission approved defendant's telegraph system at Matteson, which is similar to the systems of the defendant at Manson, Fonda, and Rockwell City, and in its closing letter in reference to the Matteson system the Commission said:

'The Commission approves the spirit in which your letter is written, and no further action will be taken in this case for the present, at least on our own motion. (Signed by the secretary of the Commission.)'

Whatever the purpose of introducing this correspondence in this case, the defendant cannot successfully claim therefrom that the government is estopped or precluded from recovering the penalties incurred by it for a violation of the act at its stations in question in this proceeding. It may be that the approval by the Commission of defendant's system at Matteson led it to believe that it might lawfully continue the use of its telegraph systems at Manson, Fonda, and Rockwell City. It may therefore be considered in mitigation.

The judgment, therefore, is that the plaintiff recover $50 on each of the 15 counts of the petition, or $750 in all, with costs. It is accordingly so ordered. Defendant excepts.

NOTE.

Agreed...