No. 1,610 | 7th Cir. | Jan 4, 1910
delivered the opinion:
Section 2 of the Hours of Service Act, applicable to plaintiff in error, a common carrier within the meaning of that Act, provides:
“Section 2. It shall be unlawful for any common carrier, its officers, etc., to require or permit any employs 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.
Provided that no operator, train despatcher or other employe who b.v the use of the telegraph or telephone despatches, reports, transmits, receives or delivers orders pertaining to, or affecting, train movements, shall be required or permitted to be or remain on duty for a longer period than nine hours in any twenry-four hour period in all towers, offices, places and stations continuously operated night and day, nor for a longer period than thirteen hours in all towers, offices, places and stations operated only during the daytime, except in case of emergency,” etc.
The charge alleged was that plaintiff in error required and permitted Ercd Hilihouse, one of its telegraph operators despatching, reporting, transmitting, receiving and delivering orders pertaining to and affecting train movements in interstate commerce, at Corwith, in the State of Illinois, to be on duty in such office, continuously operated day and night, for a longer period than nine hours — the proof showing that he went on duty at 6:30 o’clock A. M., was given an intermission of three hours at 12:00 o’clock-Noon, resumed duty at 3:00 o’clock P. M., and went off duty at 6:30 P. M., making in all
A like charge was made respecting-requirements upon one W. E. Sargent and one Fi M. Elliott, covering the same hours of service but on different days.
Do these facts prove a violation of the act? The question is raised by appropriate exceptions to the instructions of the Court, and by the refusal of the Court to give instructions, offered by. the plaintiff in error.
The contention of the Government is, that while in neither of the cases above mentioned was the operator required or. permitted to remain on duty for more than nine hours in any twenty-four in the aggregate, such service, within the contemplation of the statute either is to be divided into “two periods,” separated by the intermission (for which the statute makes no provision), or is tp be.considered as “one period,” including the intermission, which would make it a period of twelve hours. But manifestly, Congress did not intend that an intermission of three hours, in the middle of the day, should be computed as a part of the employee’s service; for the statute was enacted in view of the customs of the land, and the customs of the land do not include such intermissions as a part of the working- hours of employees. The position of the Government is therefore reduced to its contention respecting the word “period,” — that “period” is “a term,” “a cycle,” something “continuous” between a definite beginning and a definite end — whereby, invoking the canon of strict construction in criminal statutes, the period was a period of twelve hours, notwithstanding the intermission.
We cannot concur in' this view. The statute was passed with custom as a background. According to custom, nine hours’ work unquestionably means nine hours’ actual employment, whether broken by an intermission for lunch or on account of some other occasion. According to custom, too, especially in railroading in the new western States, the actual service of employees is divided, necessarily divided, throughout the day, to correspond with the arrival and departure of trains. Certainly, Congress did not intend to override these existing customs; making it necessary either that the railroad company should not give intermissions, or that the employee should be paid notwithstanding the intermissions; and making it necessary at many stations (presumably well known to Congress) that the railroad should either employ a different telegraph operator for every train that came and went (trains on western roads being often more than nine hours apart), irrespective. of the fact that the actual service for each train was a-very; short period of time. The contention of the Government gives to this word “period,” all things considered, a highly strained meaning. Disregarding a meaning so strained, and reading the word in connection, with the context, and in the light.of ordinary custom, we are clear .that -the acts proven do not constitute an offense within the meaning o.f .the law. And, if it be objected that under this construction of the law,' it would be possible for the railroad company to require its operators to give their service for short periods at short
The judgment of the District Court is reversed and the cause remanded, with instructions to grant a new trial.