Page:The Green Bag (1889–1914), Volume 20.pdf/788

 THE SHERMAN ANTI-TRUST LAW traffic that has not a 'sufficient number of cars in it so equipped with power or train brakes that the engineer of the locomo tive drawing such train can control its speed without requiring a brakeman to use the common hand brakes for that purpose.' (Sec. i). "A number or convictions have been had under this act, and the point of indefiniteness had never been successfully raised, if raised at all. In Johnson v. Southern Pacific Company, (117 Feb. Rep. 469) the court said referring to this act : "'The act of March 2, 1893, is a penal statute ... its terms are plain and free from doubt and its meaning is clear.'" The Commissioner in this citation and his comments thereon evidently relies upon the fact that here wa; a statute requiring a "sufficient number" an indefinite and uncertain term, and then leaves the im pression, or in fact specifically states that this provision of that statute had been sus tained and a number of convictions had under it, and that in relation thereto the point of indefiniteness had never been suc cessfully raised. Section i of the act of 1893, to which the Commissioner refers, reads: "That from and after the first day of January, 1898, it shall be unlawful for any common carrier engaged in interstate com merce by -railroad to use on its lines any locomotive engine in moving interstate traffic not equipped with a power driving wheel brake and appliances for operating the train-brake sytsem, or to run any train in such traffic after said date that has not a sufficient number of cars in it so equipped with power or train brakes that the engineer on the locomotive drawing such train can control its speed without requiring brakemen to use the common hand brake for that purpose." This, it will be observed, contains two propositions, the first specific and definite, prohibiting a common carrier from using any locomotive engine not equipped with a

607

power driving wheel brake and appliances for operating the train-brake system; the second prohibiting it from running any train that has not a "sufficient number of cars in it so equipped with power or train brakes, etc." The second proposition in the section containing the indefinite and indeterminate language "sufficient number" upon which the Commissioner of Corporations realize to sustain his contention that language as indefinite as the term unreasonable has already been incorporated in legislation and been sustained by the courts. Having these two propositions in mind, let me call attention to the portion of the opinion from which the Commissioner of Corporations quoted, and it will presently appear that the quotation that he made was a deliberate misquotation, because the court was not, at that stage of the opinion, discussing the second proposition in the statute containing the indefinite phrase "sufficient number." The opinion reads : "The act of March 2, 1893, is a penal statute, and it changes the common law. It makes that unlawful which was inno cent before its enactment, and imposes a penalty recoverable by the Government. Its terms are plain and free from doubt and its meaning is clear." Now follows the portion of the statute upon which the language of the court was predicated. The court says : "It declares that it is unlawful for a com mon carrier to use in interstate commerce a car which is not equipped with automatic couplers, and it omits to declare that it is illegal for a common carrier to use a loco motive that is not so equipped." An examination of the opinion discloses the fact, first that the case was not a crim inal prrsecution, but was a civil action to recover damages for personal injury. The question was: Did sections, 1,2,6 and 8 of the act of 1893 relieve the plaintiff of the assumption of risk, so that he was entitled