United States v. Ramsey

• Decision Date: 27 May 1912
• Docket Number: 3,606.
• Citation: 197 F. 144
• Parties: UNITED STATES v. RAMSEY.
• Court: U.S. Court of Appeals — Eighth Circuit

197 F. 144

UNITED STATES v. RAMSEY.

No. 3,606.

United States Court of Appeals, Eighth Circuit.

May 27, 1912

John B Meserve, Asst. U.S. Atty. (William J. Gregg, U.S. Atty., on the brief), for the United States.

Dorset Carter, for defendant in error.

Before SANBORN and ADAMS, Circuit Judges, and WM. H. MUNGER District judge.

WM. H MUNGER, District Judge.

The United States brought an action in the District Court for the Eastern District of Oklahoma against the defendant, as receiver of the Oklahoma Central Railway Company, alleging that the defendant, Asa E. Ramsey, was, in June, 1908, duly appointed by the United States Circuit Court for the Eastern District of Oklahoma receiver for the Oklahoma Central Railway Company, and duly qualified and entered upon his duties as such receiver; that the defendant, as such receiver, was a common carrier, engaged in interstate commerce by railroad in the state of Oklahoma; that in violation of an act of Congress, known as 'An act to promote the safety of employes and travelers upon railroads by limiting the hours of service of employes thereon' (34 Stat.at L. 1415), said defendant, beginning at the hour of 4 o'clock a.m., on April 1, 1910, upon its line of road at and between the stations of Ada, in the state of Oklahoma and Chickasha in said state, required and permitted its certain conductor and employe, to wit, N.L. Clift, to be and remain on duty as such for a longer period than 16 consecutive hours, to wit, from said hour of 4 o'clock a.m. of the said day to the hour of 10:40 o'clock p.m. on said date, and that said employe, while required and permitted to be and remain on duty as aforesaid, was engaged in and connected with the movement of said defendant's trains, moving between the aforesaid stations, drawn by its own locomotive engines, said train being then and there engaged in the movement of interstate traffic; that by reason of the violation of said act of Congress said defendant is liable to plaintiff in the sum of $500. The petition contained 26 other alleged causes of action of a similar nature and character, and prayed for payment in the sum of $13,500 and costs. To the petition the defendant, as receiver, filed a general demurrer, which was sustained by the court. Plaintiff electing to stand upon said petition, the cause was by the court dismissed, and the United States brings the case here for review, assigning as error the ruling of the court in sustaining said demurrer and dismissing the action.

So much of section 2, of the act of Congress above referred to, as is applicable to this case, reads as follows:

'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, and whenever any such employe of such common carrier shall have been continuously on duty for sixteen hours he shall be relieved and not required or permitted again to go on duty until he has had at least ten consecutive hours off duty; and no such employe who has been on duty sixteen hours in the aggregate in any twenty-four hour period shall be required or permitted to continue or again go on duty without having had at least eight consecutive hours off duty.'

In section 3 it is provided:

'That any such common carrier, or any officer or agent thereof, requiring or permitting any employe to go, be, or remain on duty in violation of the second section hereof, shall be liable to a penalty of not to exceed five hundred dollars for each and every violation, to be recovered in a suit or suits to be brought by the United States district attorney in the District Court of the United States having jurisdiction in the locality where such violation shall have been committed.' A single question is presented to this court, to wit: Are these provisions of the statute applicable, and to be applied, to receivers operating a railway company engaged in interstate commerce? An answer to this involves the question: Is the receiver of a railway company, in the operation of the same, a common carrier?

'A common or public carrier is one who, by virtue of his business or calling, undertakes, for compensation, to transport personal property from one place to another, either by land or water, and deliver the same, for all such as may choose to employ him; and every one who undertakes to carry and deliver, for compensation, the goods of all persons indifferently, is, as to liability, to be deemed a common carrier. ' Moore on Carriers, p. 18.

In the case of Propeller Niagara v. Cordes, 21 How. 7-22 (16 L.Ed. 41) it is said:

'A common carrier is one who undertakes for hire to transport the goods of those who may choose to employ him from place to place.'

In Beers v. Wabash, St. Louis & Pac. R. Co. (C.C.) 34 F. 244-247, Gresham, Judge, said:

'Although the property of the Wabash Company is in the custody of the court, it is operated by the receiver as a common carrier, his acts and duties are those of a carrier, and he is bound to afford to all railroad companies, whose lines connect with his, equal facilities for the exchange of traffic.'

'It has been repeatedly held that, in the operation and management of railroads by receivers in chancery, they sustain to persons dealing with them the character of common carriers. ' Alderson on Receivers, Sec. 298.

'Receivers of railroads are also liable in their official capacity to the same extent as the corporations whose road they are operating for damages arising from the negligence of themselves or their servants, or from delay, damage, etc., to freight committed to their care for transportation. In other words, they are accountable as common carriers of goods. ' Beach on Receivers, Sec. 724.

'The fact that they were acting as receivers under appointment from a court of chancery cannot be recognized as a defense to a suit at law for breach of any obligation or duty voluntarily assumed by them in conducting their business as such receivers, and their assumption of the duties and responsibilities of common carriers is not regarded as incompatible with any duty or responsibility imposed upon them as receivers. ' High on Receivers (4th Ed.) Sec. 398.

Congress in passing the act in question, must have intended to use the term 'common carrier' in the usual and ordinary acceptation of the term, to wit, as one engaged in the business of carrying persons and property from one place to another, for compensation, for all who should apply to have their goods transported or to be transported in person. The mere fact that the statute in question is a penal one does not require that the words 'common carrier' should receive a restricted interpretation. The court, in Johnson v. Southern Pac. Co., 196 U.S. 1-17, 25 Sup.Ct. 158, 161 (49 L.Ed. 363), construing what is commonly known as...