United States v. St. Louis, A. & T. R. Co.

43 F. 414, 1890 U.S. Dist. LEXIS 212

• Court: U.S. Circuit Court for the District of Eastern Missouri
• Decided: July 8, 1890
• Status: Published

Opinion

Thayer, J.,

([orally, after stating the facts as above.) The receivers clearly are not liable for the penalty imposed by the statute, because they have never been notified by the secretary of war to make any alteration in the bridge. It is wholly immaterial that the receivers had notice, prior to their appointment and acceptance of the office, that the railway company had been notified to make alterations in the bridge. The statute on which the prosecution is based requires notice to be served on the person or corporation owning or controlling the objectionable structure, before such person or corporation can be held liable to a fine, and it is not pretended that the secretary of war caused any notice to be served on Fordyce and Swanson in their capacity as receivers; hence they cannot be held liable in this proceeding. The court is also of the opinion that the railway company is not liable for the penalty herein sued for. By virtue of the law under which the secretary of war acted, the railway company had until September 1, 1889, to alter the bridge. They were not in default until that time arrived. The fact that the ‘company was dispossessed of its property, including the bridge in controversy, by judicial proceedings instituted by the mortgage bondholders, on Juno 24, 1889, and was for that reason unable to comply with the order of the secretary of war, is, in my judgment, a sufficient excuse for non-compliance with the order. It may be conceded that, if the railway company had assumed by private contract to alter the bridge on or before a given date, it would be no excuse for the non-performance of such contract that within the time limited it had been dispossessed of its property. But there is a marked distinction between duties assumed by contract and duties imposed by operation of law. A party is sometimes excused tor the non-performance of duties of the latter class, when he would not be excused for the non-performance of duties assumed by contract. The duty imposed on the railroad company in this instance was a duty imposed against its will by operation of law, and it is, in my judgment, a sufficient excuse for the non-performance of that duty that it was deprived of the means of executing the order of the secretary of war by judicial proceedings taken against it by the mortgage bondholders. The fact that it was dispossessed of its property, not voluntarily, but against its will, by decree of a court of competent jurisdiction, must be held to be a valid excuse for non-compliance with the order of the secretary of war. If the honorable secretary had caused the fact to he brought to the attention of the court that the bridge was an obstruction to navigation, and that the railway company had been ordered to alter it, it would clearly have been the duty oí the court to have ordered an alteration of the structure, by its receivers, out of the income received by them from the operation of the road. But no such action has been taken by the government in behalf of the public. For the reasons thus briefly indicated, 1 conclude that neither the receivers nor the railway company are liable for the penalty sued for, and the demurrers to the declaration are accordingly sustained.