42 F. 448 | E.D. Mo. | 1890
In the Case of the Express Companies, 1 Int. St. Com. It. 349, the commission decided, after a very full and careful review of the provisions of the interstate commerce law, that express companies, independently organized as corporations or joint-stock companies for the transaction of the express business on their own account, are not subject to the provisions of the interstate commerce law, but that when a railroad company, by itself or in combination with other railway companies, engages in the express business, and transacts such business by means of its ordinary transportation staff, it must conform to the provisions of the interstate commerce law in the management of that special department of its business, as well as in the management of its ordinary freight traffic. The reasons assigned for such decision by the commission, if not entirely conclusive, are at least satisfactory; and it is quite probable that since the decision in question all independent organizations engaged in the express business have acted on the assumption that their business is not subject to the provisions of the act. This is a sufficient reason for following the decision, unless it is clearly erroneous.
Many provisions of the act, as pointed out by the commission, clearly indicate that, in framing the act, congress only had in view those common carriers, ordinarily termed “railway companies,” that are engaged in the transportation business over lines of railroad by them owned or operated. At the time the act was passed, the express business of the
It will not be denied, I apprehend, that if the express business of the country is not subject to the provisions of the act except when it is carried on in a particular manner, — that is to say, by a railway company, or a combination of railway companies, as a branch or department of their general freight traffic, — then an indictment like the one at bar, against a person alleged to be an agent of an express company, for violations of the interstate commerce law in transacting the companies’ business, ought to contain proper averments showing that the particular business with respect to which complaint is made, is subject to the provisions of the law; otherwise an offense is not charged with that degree of certainty requisite in a criminal proceeding. In the indictment now un
• It was contended on the hearing of the demurrer that the case was brought within the act, so far as is necessary by averment in an indictment, merely by the allegation that the Pacific Express Company is. “a common carrier” engaged in interstate “transportation of property by railroad,” because that is, in substance, the description of carriers declared by the act to be subject to its provisions. It will observed, however, that the first section of the act describes those subject to its provisions as “common carriers engaged in the transportation- of property wholly by railroad,” etc., and in the present case it is not even averred that the Pacific Express Company was engaged in transporting property wholly by railroad. Therefore the language of the first section of the act, if that would suffice to bring the case within the statute, is not employed. But for other reasons I conclude that the contention is not tenable. . It might be said of any express company, and the allegation could probably be supported by proof, that it is engaged in interstate transportation of property by railroad, and that it is also a common carrier; but this frould not necessarity bring it within the act, because, from the provisions of the law considered as a whole, congress does not appear to have intended to subject “express companies,” properly so termed, to the provisions of the law. When complaint is made by way of indict-