68 F. 881 | S.D.N.Y. | 1895
Application is made under section 1014, Rev. St. U: S., for the removal of Mr. Huntington to California for trial upon an indictment found there on January 10, 1894, for issuing to Frank M. Stone in California, in violation of the, act of February 4, 1887 (24 Stat. 379), a “free pass” in the following words: “Southern Pacific Company: Pass Frank M. Stone over lines of the Southern Pacific Company 1894 until December 31, unless otherwise ordered.”
The indictment charges that by this free pass the defendant did willfully and unlawfully, and knowingly, make and give an “undue and unreasonable preference and advantage” to said Stone; that the pass was delivered to him and remained in his possession in full force and effect until December 26, 1894, and that it was the intent of the defendant in issuing the pass to’ give said Stone unlimited privilege and opportunity “to travel without charge or compensation over all the lines of the Southern Pacific Company”; and that he was not one of the persons mentioned in the amendment to section 22 of said act by the act of March 2, 1889 (25 Stat. 855), to whom the act was not to apjfiy.
The application for removal must be denied, on the ground that the indictment is fatally defective in not averring that any use was ever made of the pass, or that any transportation was ever furnished under it. Where the indictment is bad in substance, no removal will be granted. In re Doig, 4 Fed. 193; and see U. S. v. Fowkes, 49 Fed. 50, affirmed 53 Fed. 13, 3 C. C. A. 394; In re Terrell, 51 Fed. 213.
The various provisions of the act itself, and the rulings and adjudications of the interstate commerce commission, leave no doubt whatsoever that the act is intended to deal with transportation; and that nothing in the act makes criminal the mere i§sue of free tickets or passes that are never used. The indictment is drawn under the third section of the act, which provides: that “it shall be unlawful for any common carrier subject to the provisions of this act to make or give any undue or unreasonable preference or advantage to any particular person or any particular, description of traffic * « or †0 .suj)ject any person or any particular description of traffic * * * to any undue or unreasonable prejudice or disadvantage.” The subject of the “preference” or “prejudice” is transportation of either persons or property. The act nowhere in terms prohibits the mere issuing of free tickets, or free passes. A free ticket or a free pass not used is not transportation; it is not a preference or advantage to the holder, nor any prejudice or disadvantage to others. This precise point was so adjudged by the interstate commerce commission in the case of Griffee v. Railroad Co., 2 Interst. Commerce Com. R. (No. 137) 301. In that case an ex-em-ployé was furnished a free pass, which on the hearing of the com