HUMPHREY,
District Judge (after the above statement of facts). The defendant at the time in question was a common carrier engaged in interstate commerce. The coupling device was defective and inoperative, and the car at the time in question was being used in moving interstate traffic. The evidence is conclusive upon all these points. The courts have spoken so frequently and so plainly in defining interstate commerce, and the use of cars engaged in such commerce, that it should suffice to say that the evidence adduced as to the character of the defendant as an interstate carrier, and of the particular service in which the car 1,353 was being moved, meets all the conditions laid down by the courts as a test of interstate commerce, even to the latest expression of the Supreme Court of the United States, announced in Tohnson v. Southern Pacific Company (December 19, 1904) 25 Sup. Ct. 158, 49 L. Ed.-.
The evidence was overwhelming that the car was defective as to its safety appliances, and there was no contention on the part of the defendant that it was not in the defective condition claimed and proven by witnesses for the government. The defense rested on the contention that, if the car had been originally equipped with the coupling device required by law, it would not be liable under the statute for using a car whose safety appliances were defective, if it had exercised reasonable care and diligence to discover and repair the defect before placing the car in service. The defendant introduced evidence tending to show care and diligence in the employment of inspectors and repairers, and, at the close of the case, asked the court to hold propositions of law based upon this theory of defense.
The act of 1893 (Act March 2,1893, c. 196, 27 Stat. 531), amended in 1896 (Act April 1, 1896, c. 87, 29 Stat. 85), provided:
“Sec. 2. That on and after the first day of January, eighteen hundred and ninety-eight, it shall be unlawful for any such common carrier to haul or permit to be hauled or used on its line any car used in moving interstate traffic not equipped with couplers coupling automatically by impact, and which can be uncoupled without the necessity of men going between the ends of the cars.” [U. S. Comp. St 1901, p. 3174.]
“Sec. 6. That any such common carrier using any locomotive engine, running any train, or hauling or permitting to be hauled or used on its line any [127]*127•car in violation of any of the provisions of this act, shall be liable to a penalty of one hundred dollars for each and every such violation.” [U. S. Comp. St 1901, p. 3175.]
What the act plainly forbade was the use of cars which could not be coupled automatically by impact, and uncoupled without the necessity of men going between the cars. Unless a car was so equipped, it was not to be put in service. It was not to be used. The act plainly prohibited its use, and fixed a penalty therefor.
While the act is penal and to be construed strictly, the construction given it by the courts must fairly carry out the legislative intent as described in the act. United States v. Lacher, 134 U. S. 624, 10 Sup. Ct. 625, 33 L. Ed. 1080; Johnson v. Southern Pacific, supra. What is the legislative intent here ? It is clearly expressed in the first words of the preamble, “An act to promote the safety of employees,” etc. Sections 1 and 2 of the act express the same purpose. The Supreme Court, in the Johnson Case, supra, in construing this act, has clearly indicated that it should be given such a construction as will accomplish the purpose for which it was intended. The construction contended for by defendant would practically nullify the act. The statute says that a common carrier shall not haul or use cars in a certain described condition. The defendant asks the court to hold, in effect, that they cannot haul the car in that condition, provided they have failed to use diligence to discover its defective condition, but that, if they have used due diligence, they may haul the car in its defective condition. In all such cases it would be impossible for the officers of the government to determine in advance whether a statute has been violated or not; but, before a prosecution could be properly instituted, they should go to the defendant company; ascertain what care it had used in regard to a certain car; determine as a matter of fact and law, whether the acts of the defendant constituted due diligence, and from that determine whether a prosecution might be safely instituted. It is evident that such a defense would take the very life out of the act in question, and render its enforcement impossible except in a few isolated cases. The courts cannot by judicial legislation read into the act any language which will excuse offenders, any more than they can read into it language which would increase their liability. Courts must enforce the law as they find it.
In State ex rel. Barton Co. v. Kansas City, Ft. S. & G. R. Co. (C. C.) 32 Fed. 722, Justice Brewer, in rendering his decision in a case against a railroad company for violating a statute regulating railroad crossings, says in part:
“Whatever criticism may be placed upon the use of the word ‘conditions,’ the intent of the Legislature is plain; and, although this is a penal statute, it is not to be so construed as to defeat the Intent of the lawmaking power, giving full force to the Intent of the Legislature. It is obvious that it meant to enact that a failure to comply with this mandatory provision cast upon the delinquent the prescribed penalty.”
I have been unable to find that this character of defense has been sustained in any case which reached the courts of last resort. Counsel for defendant has not cited any authority in support of this doctrine of due diligence as a defense to a penal action. It is in the same cate[128]*128gory with the question of intent under the revenue laws, and of good faith under statutes against handling adulterated goods, drugs, etc. It is certainly well established that the good intentions or the lack of evil intent on the part of a liquor dealer is no defense to a prosecution for the statutory penalty. If this is no defense in a quasi criminal action, it certainly would be none in a civil action involving the same facts. It has been held, under statutes called “police regulations for the public health,” that the good faith, diligence, or good intentions of the vendor are no defense, if the facts are that he has sold goods in violation of the statute. Statutes providing that “whoever sells or keeps, or offers for sale, adulterated milk, or milk to which water or other foreign substances have been added,” shall be punished, etc., have been held to throw the risk upon the seller of knowing that the article he offers for sale is not adulterated, and it is not necessary, in an indictment under such a statute, to allege or prove criminal intent or guilty knowledge. 1 Am. & Eng. Enc. of Law (2d Ed.) p. 744, note 1, and criminal cases cited. The same rule applies to cases forbidding the sale of oleomargarine or other imitations of dairy products unless express notice be given to the purchaser. State v. Newton, 50 N. J. Law, 549, 18 Atl. 77; Com. v. Gray, 150 Mass. 327, 23 N. E. 47. In Reg. v. Woodrow, 15 M. & W. 404, a dealer in and retailer of tobacco was held liable to the penalty imposed by statute for having in his possession adulterated tobacco, although he had purchased it as genuine, and had no knowledge or cause to suspect it was not so.
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HUMPHREY,
District Judge (after the above statement of facts). The defendant at the time in question was a common carrier engaged in interstate commerce. The coupling device was defective and inoperative, and the car at the time in question was being used in moving interstate traffic. The evidence is conclusive upon all these points. The courts have spoken so frequently and so plainly in defining interstate commerce, and the use of cars engaged in such commerce, that it should suffice to say that the evidence adduced as to the character of the defendant as an interstate carrier, and of the particular service in which the car 1,353 was being moved, meets all the conditions laid down by the courts as a test of interstate commerce, even to the latest expression of the Supreme Court of the United States, announced in Tohnson v. Southern Pacific Company (December 19, 1904) 25 Sup. Ct. 158, 49 L. Ed.-.
The evidence was overwhelming that the car was defective as to its safety appliances, and there was no contention on the part of the defendant that it was not in the defective condition claimed and proven by witnesses for the government. The defense rested on the contention that, if the car had been originally equipped with the coupling device required by law, it would not be liable under the statute for using a car whose safety appliances were defective, if it had exercised reasonable care and diligence to discover and repair the defect before placing the car in service. The defendant introduced evidence tending to show care and diligence in the employment of inspectors and repairers, and, at the close of the case, asked the court to hold propositions of law based upon this theory of defense.
The act of 1893 (Act March 2,1893, c. 196, 27 Stat. 531), amended in 1896 (Act April 1, 1896, c. 87, 29 Stat. 85), provided:
“Sec. 2. That on and after the first day of January, eighteen hundred and ninety-eight, it shall be unlawful for any such common carrier to haul or permit to be hauled or used on its line any car used in moving interstate traffic not equipped with couplers coupling automatically by impact, and which can be uncoupled without the necessity of men going between the ends of the cars.” [U. S. Comp. St 1901, p. 3174.]
“Sec. 6. That any such common carrier using any locomotive engine, running any train, or hauling or permitting to be hauled or used on its line any [127]*127•car in violation of any of the provisions of this act, shall be liable to a penalty of one hundred dollars for each and every such violation.” [U. S. Comp. St 1901, p. 3175.]
What the act plainly forbade was the use of cars which could not be coupled automatically by impact, and uncoupled without the necessity of men going between the cars. Unless a car was so equipped, it was not to be put in service. It was not to be used. The act plainly prohibited its use, and fixed a penalty therefor.
While the act is penal and to be construed strictly, the construction given it by the courts must fairly carry out the legislative intent as described in the act. United States v. Lacher, 134 U. S. 624, 10 Sup. Ct. 625, 33 L. Ed. 1080; Johnson v. Southern Pacific, supra. What is the legislative intent here ? It is clearly expressed in the first words of the preamble, “An act to promote the safety of employees,” etc. Sections 1 and 2 of the act express the same purpose. The Supreme Court, in the Johnson Case, supra, in construing this act, has clearly indicated that it should be given such a construction as will accomplish the purpose for which it was intended. The construction contended for by defendant would practically nullify the act. The statute says that a common carrier shall not haul or use cars in a certain described condition. The defendant asks the court to hold, in effect, that they cannot haul the car in that condition, provided they have failed to use diligence to discover its defective condition, but that, if they have used due diligence, they may haul the car in its defective condition. In all such cases it would be impossible for the officers of the government to determine in advance whether a statute has been violated or not; but, before a prosecution could be properly instituted, they should go to the defendant company; ascertain what care it had used in regard to a certain car; determine as a matter of fact and law, whether the acts of the defendant constituted due diligence, and from that determine whether a prosecution might be safely instituted. It is evident that such a defense would take the very life out of the act in question, and render its enforcement impossible except in a few isolated cases. The courts cannot by judicial legislation read into the act any language which will excuse offenders, any more than they can read into it language which would increase their liability. Courts must enforce the law as they find it.
In State ex rel. Barton Co. v. Kansas City, Ft. S. & G. R. Co. (C. C.) 32 Fed. 722, Justice Brewer, in rendering his decision in a case against a railroad company for violating a statute regulating railroad crossings, says in part:
“Whatever criticism may be placed upon the use of the word ‘conditions,’ the intent of the Legislature is plain; and, although this is a penal statute, it is not to be so construed as to defeat the Intent of the lawmaking power, giving full force to the Intent of the Legislature. It is obvious that it meant to enact that a failure to comply with this mandatory provision cast upon the delinquent the prescribed penalty.”
I have been unable to find that this character of defense has been sustained in any case which reached the courts of last resort. Counsel for defendant has not cited any authority in support of this doctrine of due diligence as a defense to a penal action. It is in the same cate[128]*128gory with the question of intent under the revenue laws, and of good faith under statutes against handling adulterated goods, drugs, etc. It is certainly well established that the good intentions or the lack of evil intent on the part of a liquor dealer is no defense to a prosecution for the statutory penalty. If this is no defense in a quasi criminal action, it certainly would be none in a civil action involving the same facts. It has been held, under statutes called “police regulations for the public health,” that the good faith, diligence, or good intentions of the vendor are no defense, if the facts are that he has sold goods in violation of the statute. Statutes providing that “whoever sells or keeps, or offers for sale, adulterated milk, or milk to which water or other foreign substances have been added,” shall be punished, etc., have been held to throw the risk upon the seller of knowing that the article he offers for sale is not adulterated, and it is not necessary, in an indictment under such a statute, to allege or prove criminal intent or guilty knowledge. 1 Am. & Eng. Enc. of Law (2d Ed.) p. 744, note 1, and criminal cases cited. The same rule applies to cases forbidding the sale of oleomargarine or other imitations of dairy products unless express notice be given to the purchaser. State v. Newton, 50 N. J. Law, 549, 18 Atl. 77; Com. v. Gray, 150 Mass. 327, 23 N. E. 47. In Reg. v. Woodrow, 15 M. & W. 404, a dealer in and retailer of tobacco was held liable to the penalty imposed by statute for having in his possession adulterated tobacco, although he had purchased it as genuine, and had no knowledge or cause to suspect it was not so. One may be convicted of selling adulterated green tea under statute 35 & 36 Viet. 74, although he did not know that the tea was adulterated. L. R. 9 Q. B. 494. To convict one of violating the act making it a misdemeanor to sell adulterated wines, it is not necessary to prove that he knew the wines to be adulterated. Altschul v. State of Ohio, 8 Ohio Cir. Ct. R. 214, 4 O. C. D. 402. “The acts are properly construed as imposing the penalty when the act was done, no matter how innocently; and in such case the substance of the enactment is that a man shall take care that the statutory direction is obeyed, and that, if he fails to so do, he does it at his peril.” Wills, J., in Reg. v. Tolson, 23 Q. B. Div. 168. “Many statutes which are in the nature of police regulations, as this is, impose criminal penalties, irrespective of any intent to violate them; the purpose being to require a degree of diligence for the protection of the public which shall render violation impossible.” People v. Roby, 52 Mich. 577, 18 N. W. 365, 50 Am. Rep. 270 (the opinion in above is by Cooley, J.); People v. Snowberger (Mich.) 71 N. W. 497, 67 Am. St. Rep. 449.
The propositions of law submitted by defendant are therefore denied.
However, the case does not depend on the holding of the court on the propositions of law. The defendant did not exercise reasonable care and diligence to discover and repair the defects. The evidence shows that the inspection made by defendant’s servants for the purpose of discovering and repairing defects in safety appliances before putting the car in use was so weak as to be almost farcical. The force of inspectors and repairers was wholly insufficient at the time, and has been largely increased since. The government inspectors had no difficulty in discovering the defects. They found eight other cars in a de[129]*129fective condition in the same cut of cars. Such wholesale failure to discover defects implies method, and the evidence further supplies the reason. The defendant company, in the conduct of its business, contemplated and expected that in some instances it would put cars in use with defective safety appliances. The testimony of the chief inspector, Holloway, shows this. He testified that the company used what is called an “M. C. B. card.” When this card was placed on a defective car, with the defect described on the card, it was notice to all connecting lines that the defendant sent the car out defective, and that other lines using the car would not have to account to defendant for the particular injury or defect noted on the car. He also testified that in some instances these cards were used for cars defective as to safety appliances. Here is such deliberate violation of the statute as to amount to defiance of the law.
The act is so highly meritorious, so generous in its purposes, so in harmony with the best sentiment of a humane people and a progressive government, that it appeals strongly to the courts for its prompt and vigorous enforcement.
The defendant is found guilty, and judgment will be entered for the statutory penalty.