Wabash R. Co. v. United States

• Citation: 168 F. 1
• Decision Date: 03 February 1909
• Docket Number: 1,473.,1,461
• Parties: WABASH R. CO. v. UNITED STATES. ELGIN, J. & E. RY. CO. v. SAME.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

168 F. 1

WABASH R. CO. v. UNITED STATES.

ELGIN, J. & E. RY. CO. v. SAME.

Nos. 1,461, 1,473.

United States Court of Appeals, Seventh Circuit.

February 3, 1909

(Syllabus by the Court.)

The amendment of March 2, 1903 (32 Stat. 943, c. 976 (U.S. Comp St. Supp. 1907, p. 885)), to the safety appliance act applies to all cars and trains operated by a railroad carrier of interstate commerce over an interstated highway, irrespective of whether they are operated between points situated in the same state, or whether they are empty, or whether the traffic carried is intrastate traffic, and is constitutional.

A penal statute, or one in derogation of the common law, should not be hedged in to less than the legislative intent, if that is clearly revealed by the act as a whole. From the title, and from every part of the safety appliance acts, it is indisputable that the purpose was to promote the safety of interstate passengers and freight, and to protect the lives and limbs of railroad employes while engaged in the work of interstate transportation.

If a car is set apart for carrying intrastate traffic exclusively but if it is not confined to intrastate trains on an intrastate line, the fact that while it is laden with intrastate traffic it is hauled in connection with interstate cars on an interstate line requires it to be equipped with automatic couplers and grab-irons, in compliance with the federal safety appliance acts.

An expert trainman may be asked, at the trial of a case under the safety appliance acts, as to the condition of a car coupler in question, and as to what was necessary in order to operate that coupler, as the mode of operation of automatic coupling mechanism and the effect of various conditions thereof are proper subjects for expert testimony.

The word 'used,' in Safety Appliance Act March 2, 1893 requiring common carriers to equip any car used in moving interstate traffic with automatic couplers, applies to all cars and trains operated by a railroad carrier of interstate commerce over an interstate highway, irrespective of whether they are operated between points situated in the same state, or whether they are empty, or whether the traffic carried is interstate traffic.

These cases arise under the safety appliance acts. The first, second, and fourth sections of Act March 2, 1893, c. 196, 27 Stat. 531 (U.S. Comp. St. 1901, p. 3174), are as follows:

'Section 1. That from and after the first day of January, eighteen hundred and ninety-eight, it shall be unlawful for any common carrier engaged in interstate commerce by railroad 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, or to run any train in such traffic after said date that has not a sufficient number of cars in it so equipped with power or train brakes that the engineer on the locomotive drawing such train can control its speed without requiring brakemen to use the common hand brake for that purpose.

'Sec 2. That on and after the first day of January, eighteen hundred and ninety-eight, 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 from and after the first day of July, eighteen hundred and ninety-five, until otherwise ordered by the Interstate Commerce Commission, it shall be unlawful for any railroad company to use any car in interstate commerce that is not provided with secure grab-irons or handholds in the ends and sides of each car for greater security to men in coupling and uncoupling cars.'

In the Wabash case the only question is the sufficiency of the petition. The averments in substance were that the Wabash Company was an interstate common carrier, owning and operating an interstate railroad, and engaged in transporting thereover commodities in interstate traffic; that on a day named it hauled on its line of railroad a car that was not equipped with automatic couplers; that the car was one 'regularly used in the movement of interstate traffic,' but at the time in question was empty. As against the demurrer to this petition it stands admitted that the defective car was not a part of an interstate train, was not itself being moved on an interstate journey, and was not exclusively devoted to the carriage of commodities in interstate traffic. Contentions are presented that the car was not within section 2 of the act of 1893, and that if, by reason of the declaratory and interpretative act of 1903, this car be held to be included, the legislation would be in excess of the powers of Congress to regulate commerce.

In the Elgin, Joliet & Eastern case, besides the same matter of pleading, the question is presented by the evidence 'whether a car, merely in the same train with other cars that are carrying interstate commerce, is by the fact alone of being in such a train, within the provisions of the act. ' Some minor points are urged, the facts in relation to which are indicated in the opinion.

In Case No. 1,461:

N. S. Brown and McAnulty & Allen, for plaintiff in error.

William A. Northcott, U.S. Atty., Henry A. Converse, Asst. U.S. Atty., and Philip J. Doherty and Luther M. Walter, Sp. Asst. U.S. Attys.

In Case No. 1,473:

Kemper K. Knapp, R. W. Campbell, William Duff Haynie, and William Beye, for plaintiff in error.

Edwin W. Sims, U.S. Atty., Henry A. Parkin, Asst. U.S. Atty., and Philip J. Doherty and Luther M. Walter, Sp. Asst. U.S. Attys.

Before GROSSCUP, BAKER, and SEAMAN, Circuit Judges.

BAKER Circuit Judge (after stating the facts as above).

Do the words in the second section of the act of 1893, 'any car used in moving interstate traffic,' mean that a car is subject to the statute only during the time it is actually employed in moving interstate traffic, or that every car is within the act if it is customarily or repeatedly employed in such movements? Both meanings are within the dictionary definitions of 'used,' and, if regard were paid only to the rule that a penal statute should be strictly construed, the narrower meaning might be taken. But a penal statute, or one in derogation of the common law, should not be hedged in to less than the legislative intent if that is clearly revealed by the act as a whole. From the title and from every part of the act we think it is indisputable that the purpose was to promote the safety of interstate passengers and freight and to protect the lives and limbs of railroad employes while engaged in the work of interstate transportation. The risks incurred in coupling and uncoupling are more imminent on switching tracks, where trains are made up and distributed, and where empty cars are set out at freight houses or factory platforms to be loaded, than on the main lines. It is not reasonable to suppose that Congress intended to cover only the smaller part of the dangers; and since the language employed is entirely consistent with the larger meaning, section 2 of the act of 1893 should be held to forbid an interstate carrier from hauling or using on its line any car that is customarily or generally employed in moving interstate traffic, and that is not equipped with automatic couplers, even though at the particular time the car be empty or be moving intrastate traffic.

This interpretation follows, we believe, from the decision in Johnson v. Southern Pacific Co., 196 U.S. 1, 25 Sup.Ct. 158, 49 L.Ed. 363.

A dining car that had been in regular service between San Francisco, Cal., and Ogden, Utah, was dropped by an east-bound train at Promontory, Utah, to be attached to the next west-bound train. While the car was standing empty on a siding, a freight brakeman was ordered to couple it to an engine for the purpose of turning it around preparatory to its being picked up by the west-bound train. The car was not equipped with automatic couplers. 'Confessedly this dining car,' the Supreme Court said, 'was under the control of Congress while in the act of making its interstate journey, and in our judgment it was equally so when waiting for the train to be made up for the next trip. It was being regularly used in the movement of interstate traffic and so within the law.'

The Elgin, Joliet & Eastern record involves the further inquiry: If a car is set apart for carrying intrastate traffic exclusively, but if it is not confined to intrastate trains on an intrastate line, does the fact that while it is laden with intrastate traffic it is hauled in connection with interstate cars on an interstate line require it to be equipped with automatic couplers and grab irons? While the usual canons of construction might not lead to holding such a car to be within sections 2 and 4 of the act of 1893, it seems to us beyond doubt that the rule of interpretation prescribed in section 1 of the act of 1903 forecloses the question. The provisions relating to automatic couplers, etc., 'shall be held to apply' to all cars used on any railroad engaged in interstate commerce and to all other cars used in connection therewith.

But these interpretations, it is insisted, carry the legislation beyond the powers of Congress. The answer, in outline, is this: When the Declaration of Independence ripened into fact the several states could have taken their separate places in the family of nations as absolutely sovereign powers, and the commerce among them would have been on the same footing as commerce 'with foreign nations' and 'with the Indian tribes.' On abandoning their 'firm league of friendship' and adopting the Constitution, the states...