United States v. Union Pac. R. Co.

• Decision Date: 21 September 1937
• Citation: 20 F. Supp. 665
• Parties: UNITED STATES v. UNION PAC. R. CO. et al.
• Court: U.S. District Court — District of Idaho

20 F. Supp. 665

UNITED STATES v. UNION PAC. R. CO. et al.

District Court, D. Idaho, S. D.

September 21, 1937.

John A. Carver, U. S. Dist. Atty., and E. H. Casterlin and Frank Griffin, Asst. U. S. Dist. Attys., all of Boise, Idaho.

H. B. Thompson, of Pocatello, Idaho, for defendants.

CAVANAH, District Judge.

The defendants present a demurrer and motion to quash the information upon the principal grounds: (1) That the acts alleged in the information are lawful and consistent with the provisions of the last proviso of section 206(a) of the Motor Carrier Act of 1935 (49 U.S.C.A. § 306(a) and the issuance of authority by the state of Idaho, to lawfully operate as a common carrier of passengers or property for hire solely within the state of Idaho; and (2) that the information does not negative the exception contained in the last proviso of section 206(a), Motor Carrier Act 1935, in that it fails to allege that at the times therein mentioned the defendants had no permit from the Public Utilities Commission of the state of Idaho, authorizing them to lawfully engage in the transportation of passengers or property as a common carrier within the state of Idaho.

The particular provision of the Motor Carrier Act of 1935 which is alleged to have been violated by the defendants is section 206(a) which so far as material reads: "No common carrier by motor vehicle subject to the provisions of this part chapter shall engage in any interstate or foreign operation on any public highway, or within any reservation under the exclusive jurisdiction of the United States, unless there is in force with respect to such carrier a certificate of public convenience and necessity issued by the Commission authorizing such operations. * * * And provided further, That this paragraph shall not be so construed as to require any such carrier lawfully engaged in operation solely within any State to obtain from the Commission a certificate authorizing the transportation by such carrier of passengers or property in interstate or foreign commerce between places within such State if there be a board in such State having authority to grant or approve such certificates and if such carrier has obtained such certificate from such board. Such transportation shall, however, be otherwise subject to the jurisdiction of the Commission under this part chapter."

The charging portion of count 1 of paragraph 7 of the information, and each succeeding count being the same except for dates, charges: "That on, to-wit, December 21, 1936, in the State and District of Idaho, and within the jurisdiction of this Court, the said Union Pacific Railroad Company, a corporation, common carrier by motor vehicle as aforesaid, and the Union Pacific Stages, Incorporated, a corporation, common carrier by motor vehicle as aforesaid, in the manner and form aforesaid, unlawfully did knowingly and wilfully engage in an interstate operation on the public highway between Shoshone, Idaho, and Sun Valley Lodge, Idaho, without there being then and there in force with respect to said Union Pacific Railroad Company and said Union Pacific Stages, Incorporated, or either of them, a certificate of public convenience and necessity issued by the Interstate Commerce Commission, authorizing such operations; contrary to the form of the Statute in such case made and provided and against the peace and dignity of the United States."

The correct rule relating to the necessity of negativing the exception contained in the proviso of the section of the statute is found in Foster's Federal Practice (6th Ed.) at section 497b, which reads as follows: "When the statutory description of the crime contains exceptions, such exceptions must be negatived in the indictment; but this is only necessary when the exception is such as to render its negation an essential part of the definition of the offense. If the language creating the offense is so completely separable from the exception that the essential ingredients of the offense may be accurately and clearly defined without any reference to the exception, it need not be negatived thereto, but it is a matter of defense. There is no need of negativing an exception."

Applying then this rule to the present act, we find that the offense set forth in section 206(a) is fully described in the first clause, as follows: "No common carrier by motor vehicle subject to the provisions of this part chapter shall engage in any interstate or foreign operation on any public highway, or within any reservation...