United States v. St. Louis Southwestern Ry. Co. of Texas

• Decision Date: 13 December 1910
• Docket Number: 1,895.
• Citation: 184 F. 28
• Parties: UNITED STATES v. ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS. [1]
• Court: U.S. Court of Appeals — Fifth Circuit

184 F. 28

UNITED STATES v. ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS. ^[1]

No. 1,895.

United States Court of Appeals, Fifth Circuit.

December 13, 1910

J. W Ownby, U.S. Atty., J. B. Dailey, Asst. U.S. Atty., and J. J Doherty (Wade H. Ellis, Asst. to Atty. Gen., and Roscoe F Walter, Special Asst. U.S. Atty., on the brief), for the United States.

Hiram Glass, W. L. Estes, and J. J. King (E. B. Perkins and D Upthegrove, on the brief), for defendant in error.

Before PARDEE and SHELBY, Circuit Judges.

SHELBY Circuit Judge.

This is an action to recover penalties under the safety appliance act (Act March 2, 1893, c. 196, Sec. 6, 27 Stat. 531 (U.S. Comp. St. 1901, p. 3175)), as amended by Act April 1, 1896, c. 87, 29 Stat. 85. After providing in the first section of the act that it shall be unlawful for any common carrier engaged in interstate commerce to use on its line any locomotive engine in moving interstate traffic not equipped with a power driving wheel brake and appliances for operating the train brake system, the following requirements are made as to the equipment of cars:

'Sec. 2. That * * * it shall be unlawful for any such common carrier to haul or permit to be hauled or used on its line any car used in moving interstate traffic not equipped with couplers coupling automatically by impact, and which can be uncoupled without the necessity of men going between the ends of the cars.'

'Sec. 4. That * * * it shall be unlawful for any railroad company to use any car in interstate commerce that is not provided with secure grabirons or handholds in the ends and sides of each car for greater security to men in coupling and uncoupling cars.'

The penalty for the failure to comply with these requirements and the mode of enforcing payment is prescribed in section 6:

'Sec. 6. That any such common carrier using any locomotive engine, running any train, or hauling or permitting to be hauled or used on its line any car in violation of any of the provisions of this act, shall be liable to a penalty of one hundred dollars for each and every such 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. * * * '

The petition contains three counts, each for the sum of $100. The first count is for a violation of section 2, alleging that the defendant hauled a car (describing it) used in the movement of interstate traffic when the car was not equipped with couplers coupling automatically by impact. The second count is for a violation of section 4, and alleges that the defendant in like manner used another car on the ends of which the grabirons or handholds were missing. The third count, like the first, is for a violation of section 2, alleging that the defendant hauled on its line one caboose car (describing it) which was out of repair and not equipped with couplers coupling automatically by impact. Each count contained the necessary averments showing use of the respective cars in interstate commerce. The averments and proof showed the hauling or use of the three defective cars on the same day in the same train, and at the same time. The plaintiff asked for a recovery on each of the three counts. The defendant asked the court to instruct the jury:

'That it could not find in favor of the plaintiff on more than one count, on the ground that the uncontradicted testimony showed that there was only one movement of the train, and that said movement embraced the three cars testified about by plaintiff's witnesses.'

The court sustained the defendant's contention, and directed a verdict for the plaintiff on the first count and for the defendant on the second and third counts. It is assigned here that the District Court erred in holding that the plaintiff could recover on only one count.

The statute is penal, and must, of course, be construed strictly; but this only means that acts must not be brought within the scope of punishment which are not within the terms of the statute; that the courts must not create offenses by mere construction. The intention of Congress, shown chiefly by the words used, must govern in the construction of penal as well as other statutes. A construction which would defeat the obvious intention of the Legislature should be avoided.

The first section of the act requires the engine used in interstate commerce to be equipped with driving wheel and train brakes. The second section requires the cars to be equipped with automatic couplers, and the fourth section requires the cars to be equipped with grabirons or handholds. The second and fourth sections made it 'unlawful' to haul or use 'any car' not equipped as required. It is plain that to use in interstate traffic an engine not equipped with driving wheel and train brakes would be a violation of the first section; that to haul or use any car not equipped with automatic couplers would be a violation of the second section; and that to use any car not equipped with grabirons or handholds would violate the fourth section.

Now we come to the sixth section, which prescribes the penalty, and its language must be construed in connection with the foregoing. This section, by its words, is made to apply to 'any such common carrier using any locomotive engine, running any train, or hauling or permitting to be hauled or used on its line any car in violation of any of the provisions of this act. ' To see what is a violation of the act as to the equipment of the engine, we have only to refer to the first section; and, as to the equipment of the cars, to the second and fourth sections. The use of an engine or the hauling or use of 'any car' not equipped as required is a violation of the act. After making it clear that the penalty is to be applied for a violation of 'any of the provisions of this act,' it is provided that the defendant who violates the provisions of the act 'shall be liable to a penalty of one hundred dollars for each and every such violation. ' It seems clear that 'each and every violation' refers to the requirements of the preceding sections, and that a penalty of $100 should be assessed for each-- for the use of an engine not equipped as required; and for the hauling or use of any car not equipped as required.

The defendant contends that there has been but one violation of the act, and that, therefore, the court ruled correctly in assessing only one penalty. The contention is that the defendant 'has committed only one act; that it, by one act, hauled three cars, in one movement, not equipped with safety appliances as required by law. ' If this contention is well founded, a defendant who used on the same trip a defectively equipped engine and a defectively equipped car could be made to pay one penalty only, although the use of the engine is made unlawful by section 1 and the use of the car by section 2 or 4. It would also follow that a defendant who hauled or used 20 defective cars could not be made to suffer a larger penalty than a defendant who hauled or used only one defective car. It is difficult to believe that such was the intention of Congress. The words of the sections-- 2 and 4-- designating the unlawful act, point, it seems to us, at the car, and not at the train. It is made unlawful to haul or use 'any car.' If it had been made unlawful to haul any train containing a car or cars not equipped as required, it is easy to see that the number of defective cars would not increase the penalty. But the act makes the hauling or use of the defective car the unit of the offense, and prescribes the penalty 'for each and every such violation. ' The hauling or use of each car is, it is admitted, a violation, for which the penalty may be inflicted. But the contention is that the hauling or use of each car must be separate, or there is but one offense. In view of the purpose of the act to protect life and limb by the enforced equipment of every car, and its being made unlawful to haul or use any car not equipped as required, it seems to us that the construction contended for by the defendant is so narrow as to defeat the intention of Congress. If the three defective cars had been hauled or used by the same engine, but only one moved at a time at intervals of one minute or less, it is not denied by defendant's contention that three penalties could be recovered. The three penalties would have been recovered, for the reason that the statute makes unlawful the hauling or use of 'any car,' or each car not equipped as required. It seems strained to say that the statute requires for its complete application an interval, and that the condemnation and penalty is not the same if the three cars are hauled or used at the same time.

To show that only one offense could be committed by one hauling of the three cars, it is urged that the movement or hauling of a defective car is necessary to complete the offense. But is that clearly true? In section 2 it is the hauling or using of the car that is condemned. In section 4 it is the using alone that is condemned. The former section reads: 'It shall be unlawful * * * to haul or permit to be hauled or used,' etc. The latter reads: 'It shall be unlawful for any railroad company to use any car,' etc. The penalty is imposed by section 6 when the car is 'hauled or used.' Is the defendant's contention true, that a hauling is absolutely necessary to complete the offense? The statute forbids hauling and using. Why were both words used? If the car was fully loaded and on the track ready to be started as a part of an interstate train, with engine attached and fired, and requiring only the touch of the engineer to start, would not the car be 'used' or in use, within the...