Wabash Ry. Co. v. O'Bryan

• Decision Date: 21 December 1922
• Docket Number: 213.
• Citation: 285 F. 583
• Parties: WABASH RY. CO. v. O'BRYAN, Pros. Atty.
• Court: U.S. District Court — Eastern District of Missouri

285 F. 583

WABASH RY. CO. v. O'BRYAN, Pros. Atty.

No. 213.

United States District Court, E.D. Missouri, Northern Division.

December 21, 1922

N. S Brown and Homer Hall, both of St. Louis, Mo., for plaintiff.

Redick O'Bryan, Pros. Atty., of Moberly, Mo., pro se.

Before KENYON, Circuit Judge, and DYER and FARIS, District Judges.

FARIS District Judge.

Plaintiff a corporation under the laws of the state of Indiana, engaged in the state of Missouri and elsewhere as a common carrier of both interstate and intrastate commerce, prays for a temporary injunction against defendant, as the prosecuting attorney of Randolph county, Mo., to prevent the enforcement by defendant against plaintiff of the provisions of a certain act of the General Assembly of Missouri (section 6832 et seq., R.S. Mo. 1919), and hereinafter for convenience called simply 'act,' on the ground, among others, that the act is unconstitutional in divers behalves.

The act (Laws 1917, p. 323) thus challenged reads as follows:

'An act to provide for the erection, maintenance and equipment of suitable buildings for the protection of the safety health and comfort of employes engaged in the construction and repair of freight and passenger cars and car trucks used within this state, providing a penalty for the violation of the same, and fixing the time for this act to become operative. 'Be it enacted by the General Assembly of the state of Missouri, as follows:

'Section 1. Houses for Employes Required, etc.-- Every person, firm, corporation, or receiver of such person, firm or corporation, engaged within this state for the construction, or repairing of passenger or freight cars or car trucks used in the transportation of passengers or freight by rail, shall erect and maintain a building or buildings at every point or place within this state where such construction or repairing is done, and where six or more men are regularly employed on such work. The building or buildings provided for in this section shall be so constructed and equipped as to fully protect all employes engaged in such construction or repair work from exposure to cold, rain, sleet, snow and all inclement weather during the hours of employment of such employes, providing that the provisions of this act shall not apply where ordinary light repairs are required. The term, light repairs, as used in this act shall be such repairs as can be made to cars in switching yard in thirty minutes or less, or which may be made in less time than would be required to switch such car or cars to the repair building provided for in this Act.

'Sec. 2. Violation-- Penalty.-- Any person, firm, corporation or receiver of such person, firm or corporation who shall violate the provisions of this act or shall require men regularly employed by them in the construction and repair of such passenger and freight cars to work outside of the building as provided for in this act, shall be deemed guilty of a misdemeanor and upon conviction thereof in any court of competent jurisdiction shall be fined in the sum of not less than $100.00 nor more than $500.00, for such offense and each day of such violation shall constitute a separate offense.

'Sec. 3. Take Effect-- When.-- This act shall take effect and be in force on and after the first day of January, 1918.

'Approved April 10, 1917.'

Defendant has moved to dismiss on divers grounds, thus tacitly conceding the truth of all well-pleaded allegations in plaintiff's complaint. One of these grounds for dismissal, which, however, strikes at the very foundation of plaintiff's right to maintain this proceeding in equity, needs but short shrift. This contention is that plaintiff cannot enjoin a criminal prosecution. So much, ordinarily, may be frankly conceded. Here no prosecution is pending, though divers such have been brought and many others are threatened. Defendant, in his thorough-going contention, overlooks the well-settled exception presented by the pleaded facts in the instant case. This exception is that, when property rights are involved and such rights are threatened with destruction by criminal proceedings under an alleged unconstitutional statute, a court of equity has the power to afford relief by injunction. Kennington v. Palmer, 255 U.S. 100, 41 Sup.Ct. 303, 65 L.Ed. 528, and cases cited; Chicago, etc., Ry. Co. v. Railroad, etc., Com. (D.C.) 280 F. 387, and cases cited. Under the letter of the act, set out above, plaintiff has already incurred penalties approximating in amount the sum of $200,000, which defendant is threatening to and will enforce, unless restrained by this, or some other court. It is obvious, therefore, that this case falls within the exception noted. There are other exceptions, but they are afield as to the case at bar and we need not follow them. See Dearborn Pub. Co. v. Fitzgerald (D.C.) 271 F. 479.

Coming now to the merits: It is strenuously urged by plaintiff that the language of the act, whereby the offense denounced is defined, is so indefinite, uncertain, and obscure that it does not inform one accused thereunder, of the 'nature and cause of the accusation,' as is required by the Constitution of Missouri. Section 22, art. 2, Const. Mo. 1875. So much, in the precise language above quoted, is provided for by the organic law of this state (section 22, art. 2, (Const. Mo., supra), as also by the Constitution of the United States (Sixth Amendment to U.S. Constitution).

The act is commonly called the 'Car Shed Act,' and, as will be noted, essentially requires the construction and maintenance of a building or buildings by common carriers and others engaged in making or repairing cars 'used in the transportation of passengers or freight by rail,' wherein such manufacture or repairing of such cars shall be done. Not only must such a building or buildings be constructed and maintained by such carriers or other persons mentioned, but such buildings are required to 'be so constructed and equipped as to fully protect all employes engaged in such construction and repair work from exposure to cold, rain sleet, snow and all inclement weather, during the hours of employment of such employes. ' There is, however, a proviso in the act, whereby those sought by the act to be affected are relieved from its provisions. This proviso says that the act shall not apply when ordinary light repairs are required, and 'light repairs' are defined as being 'such repairs as can be made to cars in switching yard in thirty minutes or less, or which may be made in less time than would be required to switch such car or...