Page:Federal Reporter, 1st Series, Volume 7.djvu/203

 UNITED STATES V. WISE. 191 �2. Samb*-SAmb— " Pkacticablb Mode op Transportation." �The Word " praciieable,?' in that section, is used in a ooinmercial or business, and not in a mecbanicali sense. �On Error to the District Court.* �Channing Richards, U. S. Dist, Att'y, for plaintiff. �Mouiton, Johnson d; Levy and W. H. Jones, contra. �Matthews, D. J. These suits were b'rought by the United States to recover statutory penalties for carrying refined pe- troleum as freight on passenger vessels, in violation of section 4472, Eev. St.,-:— in one case from Cincinnati to Memphis, and in the other from Marietta to Cincinnati. It is alleged in each case that there was another practicable mode of trans- portation, whicb, being denied, constitutes the sole issue. �The testimony before the district court, as disclosed by the, buis of exception, was to the effect that there was an all-rail route over which the petroleum could have been carried in each case, but that the rate of charge was s<? high that in one case (Marietta to Cincinnati) it would consume the profit on the sale, and in the other case (Cincinnati to Memphis) it would destroy the trade between those points. The district judge was requested by the plaintiff to charge the jury that if they found from the evidence there was an all- rail route between the places in question that would consti- tute a practicable mode of transportation, within the meaning of section 4472, without regard to cost gr distance, This charge was refused, and exception taken. The jury was then charged, in one case, that if the rate of freight charged by the railroad company would consume the profit upon the sale at the point of destination, it would not be a practicable mode of transportation between those places; and, in the other case, that it would not be practicable if the rate was so high as to destroy the trade between those places. To these charges exceptions were also taken by the plaintiff. The judg- ment of the district court was in favor of the defeudant in each case, and writs of error are prosecuted from this court �*Opinion of Judge Swing in the district court. U. S. v, Thornburg, etc., 6 Fed. Rbp. 41. I ��� �