144 F. 861 | D. Or. | 1906
(after stating the facts). Two questions were discussed on the hearing of the demurrer; First, whether the defendant was engaged in moving interstate traffic where the shipment of. the commodity originated in the state of Wyoming, was carried to Portland, in the state of Oregon, by one of the lines entering the terminal company’s yards, there delivered to the latter company, and by it delivered at its team tracks, where the commodity was unloaded to be taken elsewhere at point of destination within the city; and, second, whether defendant' was engaged in moving interstate traffic where the shipment originated and was delivered as above to the terminal company, and by it delivered within its yards to the engines of one of the railroad companies. It was incidentally suggested whether the terminal company was engaged in moving interstate traffic at all, it being merely an agency for the different lines terminating in its yards for distributing the traffic originating within the lines themselves, from one line to another, to be by such lines carried to destination; but the
The statute was designed to inhibit the hauling, or using by any railroad company in its line, any car used in moving interstate traffic not equipped with couplers coupling automatically by impact, etc.; the denouncement being against the use of the car. It makes but little difference, therefore, whether the car contained at the time any commodity being carried as freight or not, if the car was one being used in .moving interstate traffic, not in the sense that at the particular time it was going, loaded or partially so with .a commodity being shipped from one state into another, or others, but that it was being employed in a service that was moving interstate traffic. Such is the construction given the. law by Shiras, District judge, in Voelker v. Chicago, M. & St. P. Ry Co. (C. C.) 110 Fed. 867, and approved by Mr. Chief justice Puller in Johnson v. Southern Pacific Co., 196 U. S. 1, 25 Sup. Ct. 158, 49 L. Ed. 363.
The fact that the cars in question were at the time carrying a commodity that had been shipped from one state into, or through, another, demonstrates the averment, however, that it was then engaged in moving interstate traffic. The cardinal purpose of the terminal company is to facilitate the transfer of these cars as among the three lines of railway centering in the former’s yards. If the car is being used by any of these lines for the transportation of interstate traffic, and its destination is to pass from one line to the other,, it must pass through the yards of the terminal company and be hauled by it. When, therefore, the terminal company is engaged in effecting a transfer of one of these cars from- one line of railway to another, it is itself engaged in hauling a car used in moving interstate traffic. Thus far there can be absolutely no cavil.
But what is the difference if it takes the car from one of the lines and moves it to its own team track, there to be unloaded, or moves it back empty, and places it in one of the lines again to be forwarded elsewhere? In either event it handles a car used in the designated traffic. So it does with equal fault -when it moves a car, used for moving interstate traffic, set in by one of the lines, to a convenient engine upon the yard, to be unloaded of its coal designed for use by such engine. It is a hauling or using a car, the particular use of which is inhibited by the statute. The result is deducible by strong analogy from the case of Johnson v. S. P. Company, supra.
I am therefore of the opinion that the demurrer to the answers should be sustained, and it is so ordered.
