
    PROSECUTION UNDER THE STATE AUTOMATIC COUPLER ACT.
    Common Pleas Court of Erie County.
    The State of Ohio v. Lake Shore & Michigan Southern Railway Company.
    Decided, November, 1908.
    
      Automatic Couplers■ — Federal and State Laws with Reference to, not in Conflict — Constitutionality of the State Statute — Proceedings Thereunder of a Civil Natu/re — 9S O. L., 75.
    
    1. The state automatic coupler act (9S.O. L., 75) is not in conflict with the federal act relating to the same subject, and is not unconstitutional because relating to the same subject-matter.
    2. Proceedings under the state act are civil in their nature, and guilty • knowledge and intention are therefore not essential elements of the offense.
    
      E. O. Harrison, of counsel for .the Attorney-General, and E. S. Stephens, Prosecuting Attorney of Erie County, for the State of Ohio.
    
      Doyle & Lewis, for defendants.
   Reed, J.

On June 17, 1907, the plaintiff filed this action in the- Court of Common Pleas of Erie County, Ohio, setting forth that the defendant, the Lake Shore ’& Michigan Southern Railway Company, is a corporation duly and legally organized under the laws of the state of Ohio, and engaged in' the railroad business, owning, operating and maintaining a line of railroad running in and through Erie county, Ohio. That at the time mentioned in the petition it was a common carrier engaged in transporting passengers and freight by its railroad.

The plaintiff sets forth as and for its cause of action against the defendant that on February 19, 1907, the defendant company, in violation of an act of the General Assembly of the state of Ohio, passec] March 19, 190§t entitled “An act to pro» mote the safety of employes and travelers upon railroads by compelling common carriers by railroad in the state of Ohio, to equip their ears with automatic couplers, sill steps, grab irons, and continuous brakes” (98 O. L., 75), hauled over its line of railroad in Erie county, from a point at the intersection of Columbus avenue and Railroad streets to the Kelly Island Lime & Transportation Co.’s tracks in the city of Sandusky, a distance of about 2700 feet, L. S. & M. S. car D-38591; that the automatic coupler on this car was at the time out of order, defective and broken; that the coupling chain clevis and lifting pin on the A end of said car were broken and inoperative, necessitating, in case of coupling it with another car, a man going between the cars to make the coupling; that this car by reason of its broken coupler would not couple automatically by impact, and that when coupled with another car could not be. uncoupled except by a man going between the cars; and for this violation of the law the plaintiff seeks to recover the penalty of $100 prescribed by the act for its violation.

It is admitted that the defendant is a corporation duly organized under the laws of the state of Ohio; that on or about the 19th day of February, 1907, the defendant hauled on its line of railroad from a point at the intersection of Columbus avenue and Railroad street in the city of Sandusky, in an easterly direction, to the tracks of the Kelly Island Lime & Transportation Co., in the city of Sandusky, Ohio, a particular car known as L. S. & M. S. ear D-38591; and -that at the time the uncoupling chain on one end of the ear was broken, and the coupler was inoperative.

The defendant claims .that this oar was loaded with coal at the Bradley mines on the line of the Lake Erie & Western Railway Co. and consigned to the Kelly Island Lime & Transportation Co. at Sandusky, Ohio (but the admitted facts are that it was consigned to the Kunz-Smith Coal Co. at Sandusky, Ohio); that this car was transferred, to the' Baltimore & Ohio railroad at Newton Falls, Ohio, and by it transported to Sandusky, Ohio. The defendant claims that this car was delivered to it by the B. & 0, Railroad Co, a short distance from the tracks of the Kelly Island Lime & Transportation Co.; that it was transferred to these tracks where it was unloaded and inspected, and the defect in said coupling was then and for the first time discovered. It claims that the car was in no manner moved or transported except as was necessary, to place said ear on its repair tracks. It claims that ,it had no knowledge of the defective condition of said coupling prior -to the inspection made immediately upon the unloading of said car while on the tracks of the Kelly Island Lime & Transportation Co. That immediately upon discovering said defective condition the ear was placed upon the repair trades where the defective coupling was promptly repaired. It claims it has used all due care in inspecting this car after receiving it; that at.no time was the car moved or transported by it after it had knowledge of its defective condition, and ■that, therefore, it has not violated the act of March 19, 19Q(5, and the State is not entitled to recover the penalty sued for.

A jury was waived, and by agreement of the parties the ease was submitted to the court upon, an agreed statement of facts, and the .testimony taken by agreement in the absence of th'e court.

In the stenographic report of the testimony which was handed to the court there appears objection and exceptions to the introduction of certain testimony, questions calling for conclusions, and answers which clearly state conclusions. The report shows that these objections were overruled and all testimony allowed to go in, some of which is clearly incompetent and should not be considered by the court. This incompetent testimony is utterly disregarded'by ..the court, and is not considered at all in reaching the conclusions which I have reached in this case. It is not necessary to specifically point out these questions and answers which the court holds to be incompetent; they .are apparent from an examination of the questions and answers themselves.

The facts as agreed to in the case, other than those admitted by the pleadings, are as follows:

1. It is hereby agreed by the parties hereto that the defendant, the Lake Shore & Michigan Southern Railway Company, is and was at the time of the commencement of this action a corporation organized under the laws of the state of Ohio^ and a common carrier engaged in transporting passengers and freight by a railroad operated and conducted by it in the state of Ohio.

2. That the said defendant on or about the 19th day of February, 1907, hauled on its line of railroad from a point at the intersection of Columbus avenue and Railroad street in its house yard, in the city of Sandusky, Ohio, in an easterly direction, to '-the Kelly Island Lime & Transportation Company’s tracks, in the city of Sandusky, Ohio, Lake Shore & Michigan Southern Railway car Number D-38591.

3. That the defendant hauled said car said distance aforesaid whén the uncoupling chain clevis and the lifting pin on the A end of said car were broken, Out of repair, inoperative, and in such condition 'that said ear could not be eoupléd automatically by impact, unless the knuckle was open, or' uncoupled without some one going between .the' ends of the cars for said purpose; that' the coupler on the said A end of said oar Was in such a condition- that it would not couple .automatically by impact, unless the knucklé was open- and that the said-coupler on the said A end of said car could not be uncoupled by means of the mechanism of said' coupler without a man or men going between the ends of the car for that purpose.

"4.' That said car had been properly equipped with automatic couplers coupling by impact, but that the same had become broken, inoperative and out of répair.

5. ' That said car was not loaded when hauled by said defendant from the intersection of Columbus avenue and Railroad street, but was hauled in the defective condition, described as'aforesaid, to -the said Kelly Island Lime & Transportation Co.’s tracks, as aforesaid, to be there loaded with sand for said defendant.

6. -.That' the distance said car was hauled as aforesaid was about 2700 feet.

7. That shortly before February 19, 1907, said ear was loaded with coal at the Bradley mines on the line "of the Lake Erie, Alliance & Western Railway Company, in the state of Ohio, and hauled over -the line of said Lake Erie, Alliance & Western Railway from Bradley mines to Newton Palls, Ohio, where said car was .transferred to .the Baltimore & Ohio Railroad Company, and by the said Baltimore & Ohio Railroad Company hauled over its railway from Newton Palls, Ohio, to Sandusky, Ohio, where said car was unloaded by the SmithKunz Coal Company, to which said company said car of coal 'was consigned; that said car, after being unloaded by said Smith-Kunz Co.al Company was hauled by the Baltimore and Ohio Railroad Company, over its .railway, to a point at or near the intersection of Columbus .avenue and Railroad street, in the city of Sandusky, .Ohio; and said ear Wias received by the defendant herein from-, the Baltimore '& Ohio Railroad Company at the point last above described.

From this agreed statement of facts and the testimony which is offered, I conclude that on February 19, 1907, the defendant received from the Baltimore & Ohio Railroad Company a freight car with the automatic coupler in a defective condition.to such an extent that it would not couple automatically by impact, nor could it be uncoupled without a man going between the cars to perform some service in connection therewith; that this ear was hauled for a distance of 2700 feet to the tracks- of the Kelly Island Lime & Transportation Company for the purpose of being loaded with sand; that the car was loaded in the state of Ohio with coal and consigned to Sandusky in -the state -of Ohio, so .that at no time between the time the car'was loaded at Bradley mines and the time it was in on the Kelly Island Lime & Transportation Company’s tracks- to be loaded with sand was it engaged in interstate commerce.

The State asserts that upon this state of facts the defendant company has violated the automatic coupler act, and is liable to the penalty therein prescribed.

The defendant claims that this being in its nature a penal statute the court is not justified in assessing this penalty against the defendant, unless it find beyond a reasonable doubt that at the time the defendant company knew of the defective condition of this coupler before it hauled it, or by, the exercise of reasonable care could have known it. And it contends that there is nothing in the admitted facts or the evidence which would warrant such a finding, and therefore it should be discharged from liability under this complaint.

It has been suggested that the act under which this prosecution is instituted is unconstitutional in that it attempts to regulate interstate commerce; that Congress has the exclusive power to regulate traffic between the states and the instrumentalities of. ■such traffic, .including oars, locomotives and trains, and that Congress has acted in this regard by enacting a law entitled “An act to promote the safety of employes and travelers upon railroads by compelling common carriers engaged in interstate commerce to equip their cars with automatic couplers and continuous brakes, and their locomotives with drive wheel brakes,” and for other purposes, "which act was approved March 2, 1893, and amended April 1, 1896.

It should be added, that .the Lake Shore & Michigan Southern Railway Company has a line of railway extending from Chicago to Buffalo engaged in an interstate commerce traffic.

If this act is ah attempt to regulate interstate commerce, it will not be gainsaid that it is unconstitutional. And this is true whether Congress has acted or not, if the exclusive power lies with Congress. If the exclusive power to regulate interstate commerce is vested in Congress, then a state may not -act.

,'A distinction must be drawn between an act which attempts to regulate commerce between states and .an .act which attempts to regulate the means by which commerce is carried on within a state.

Section 2 of the act of Congress to which I have referred reads as follows: ,

“Section 2. ' That on and after the 1st day of January, 1908, it shall be unlawful for any such common carrier to haul, or, permit to be hauled, or used, on its line any ear 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.”

Section 2 of the act under discussion, that is, the act of the Legislature of .the state of Ohio, approved March 19, 1906, reads as follows:

"Section 2. It shall be unlawful for any such common carrier to haul or permit to be hauled, or used, on its line any locomotive, car, tender or similar vehicle used in moving state 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.”

The two sections are identical, except that one provides for automatic couplers on cars engaged in interstate commerce, and the other provides for ears engaged exclusively in intrastate commerce. Can .it be said that the act under discussion is an attempt to interfere with the right of Congress to regulate interstate commerce ? It seems 'hleaf to me that Congress had in mind, when it passed this .act, the fact that it had .always conceded to the states the right to regulate the means by. which commerce is carried on within the state. And acting iat least upon the supposition .that it had a right to regulate and control intrastate commerce, many laws having been enacted for the protection of life and property, and -the regulating and control of railroads, which from time to time have been enforced without a suspicion that they had in any wise conflicted with the rights of the general government. Clearly Congress in limiting the operations of the automatic coupler act to which I have referred to ears engaged in interstate commerce traffic intended to leave open to the state the right to take such action as it might deem advisable for the safety and protection of employes and travelers upon the railroads wholly within the state.

The act under discussion does not attempt to regulate interstate commerce, nor does it conflict with the act of Congress requiring automatic couplers upon oars engaged in interstate commerce. " The federal enactment is not designed to nor does it apply to cars engaged in intrastate traffic. The act of the Legislature under which this case is instituted is not designed to nor does it apply to ears engaged in .interstate commerce. The two acts construed together cover the whole field of railroad operation and require that all ears either engaged in interstate or intrastate commerce be equipped with' automatic couplers, and suits may be prosecuted under either law as the facts of the ease may be.

In this particular case the car was engaged in strictly intrastate traffic, and if there is any violation of the law at all it is a violation of the act of March 19, 1906. It can not be said that the federal law has been violated; and if the act of 1906 is unconstitutional because it conflicts with the right of Congress to regulate commerce, then we are .in this dilemma — Congress always refusing to interfere with the means by which commerce is carried on within a state affords no relief, and the State being unable to pass lawful acts requiring these things to be done for the safety of employes and the traveling public, all traffic within the state may be carried on with cars not provided -with these automatic couplers. It can not be said that such a paradoxical situation presents itself. As I view it the law is constitutional. In support of this conclusion I cite M., K. & T. v. Harbor, 169 U. S., 613; Addyston Pipe Co. v. United States, 175 U. S., 211; Lord v. Goodall et al Steamship Co., 102 U. S., 541; Milnor v. New Jersey Trans. Co. et al, and David Biglow v. New Jersey Trans. Co., 65 U. S., 799.

The principal contention that the defendant makes in this case is that it is a criminal proceeding, and therefore knowledge and intention are elements which enter into it and must be found to exist in order to warrant the court in assessing the penalty. That in this particular case .there is no evidence of knowledge, or that the company could by the exercise of reasonable care have discovered the defective .coupler, and therefore the defendant can not be required to pay the penalty prescribed for a violation of the law.

If it is a criminal proceeding, then the contention of the defendant is right. The claim of the defendant is based largely upon the fact that the act itself makes it unlawful to haul a car within the state not equipped with an automatic coupler, so that the ear can be coupled with -other, cars and uncoupled without men going between the -cars, and it provides a penalty of $100 for each violation of the act. If it is a penal statute, then of course knowledge and intention are .ingredients of the offense which must be proven. But is it? The mere fact that the word unlawful appears in the act does not make it a penal or criminar statute. Section 6 of the act provides:

"Section 6. That any such common carrier using or permitting to be used or hauled on its line any locomotive, tender, car, or similar vehicle, or train, 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, to be recovered in a suit or suits to be brought by the prosecuting attorney in the common pleas court of the county having jurisdiction in the locality where such violation shall have occurred.”

Prior to the enactment of the act of 1906’ the law provided that every railroad company' should equip or' hate its cars equipped with automatic couplers substantially the same as the present law, and it further provided that for each violation of the act there should be a forfeiture to the state of Ohio of the sum of $25 for each day such defective coupler was used, to be collected in a civil suit in any county in the state where service could be had on the road violating the law, and it was' made the duty of the Attorney-General or the prosecuting attorney of the county wherein the act was violated to prosecute -the suit.

The present law differs from the original act in that the word civil is omitted, and the jurisdiction is limited to the locality wherein the violation occurs. The original act was in this respect like many of the other acts upon our statute books in the nature of police regulations, wherein penalties are prescribed to be collected for the use and benefit of the state by civil actions. What is commonly known as the "Winn law” has in it a provision similar to this one, .providing that penalties are to be collected by civil actions brought in the name of the state of Ohio. This act has been sustained. In prosecutions under it the rules of evidence which pertain to civil procedure have been applied. State v. Allen, 6 O. D., 43.

In bastardy proceedings under the law of this state, where the court has power to imprison to enforce its order and judgment, the -authorities are to the effect that it is iu fact a civil proceeding, only giiasi-criminal and that in the trial of such cases the code of civil procedure is applicable.»

Bates in his new “Pleadings and Practice,” Vol. 3, page 2420, discussing this class of cases, says, “the action is a civil action,” and in support of this cites Wright v. Munger, 5 O., 441; Mack v. Bonner, 3 O. S., 66. A number of other authorities are cited, which while not directly in point bear -out the statement that it is a civil proceeding. In further support of this proposition I cite 121 Wis., 472; 67 N. Y., 269.

The defendant claims that Kvrongs are divided 'inffco two classes, private wrongs and public wrongs, .and that the test as to whether or not a law is penal in the strict and primary sense is, whether the wrong sought to be redressed is a wrong to the public or a wrong to the individual. That the former are infringements or- privations of the private or civil rights belonging to individuals, considered as individuals, and are civil injuries. That the latter are breaches and violations of public rights and duties which affect the whole community, considered as a community, and are distinguished by .the harsher appellations of crimes and misdemeanors. In support of this proposition my attention is called to -the ease of Clyatt v. United States, 197 U. S., 222. In other words, it is claimed that if this penalty was payable to an individual who might be required to go between the cars to adjust this coupling, it would be a civil injury; but inasmuch as it is a penalty which is collected by the State, it is a penal statute; that is to say, crime.

In the case of Inwood v. the State, 42 O. S., 186, the defendant was being prosecuted under Section 3 of the act of Feb. 17, 1831, “for the prevention of certain immoral practices” which provided, “that if -any person or persons shall, at -any time, interrupt or molest any religious society, etc., the person or persons so offending shall be fined in any sum not exceeding $25. And any judge of the court of common pleas, or justice of the peace within the,proper county, be and -they are hereby empowered, authorized and required to proceed against and punish every person offending against the provisions of this act; and upon view and hearing may, if need be, issue his warrant to bring the- body of the accused before him, and shall inquire into the truth of the accusation; .and if guilty shall enforce the penalty of this act annexed to the offense; and said offender (if the judge or justice should think necessary) may be detained in custody and committed until sentence be performed.” A warrant was issued, he was arrested, taken before the court and found guilty. The question was raised that .this law was unconstitutional because it deprived .the defendant of the right of a trial by jury. Reading from page 189:

“The question is: Was the phrase ‘in any trial, in any court’ intended to apply to cases like 'the present, where the penalty is by fine merely, inflicted on the violator of a mere police regulation, only quasi-criminal? A class of cases for the punishment of immoral and pernicious practices by pecuniary penalties, by which, by the common law, as above shown the accused was never entitled to demand a trial by jury, the provision of the Constitution is, that the person accused shall have a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed'. Accused of an offense, to-wit, such an offense as would, before the adoption of the Constitution, have entitled the accused to a jury trial. This provision, in our opinion, was not intended to extend the right of jury trial, but was intended to define the characteristics of the jury.
“.In Thomas v. Ashland, 12 O. S,, 124, it was held that an ordinance of a village which imposed imprisonment as a penalty for an offense, where no provision was made for a trial by jury, was in conflict with Section 10 of the first article of the Constitution above quoted; but the court was careful to exclude from the operation of the rule there laid down, eases' where the punishment was by fine only, although imprisonment was authorized as a means of enforcing the payment of the fine. We *>iink the discrimination between imprisonment as part of the penalty, and as a means of enforcing the penalty, is well made.”

In this decision the Supreme Court speaks of this police regulation as only gwsi-eriminal in its nature, and in ease wherein to enforce the collection of a fine, imprisonment may be resorted to.

In the case of The Commissioners of Champaign Co., etc., v. Church, etc., Admr., 62 O. S., 318, reading from the opinion of Judge Davis on page 345:

‘ ‘ The contention is that the statute deprives the defendant of the right to have the amount to be paid assessed by a jury as damages. A county or municipality can no more complain of this statute as an infringement upon .the right of trial by jury, than the man who has been tried by a jury and found guilty of a crime can complain that the law under which he is tried does not provide that the jury shall assess the amount of his fine or adjudge the extent of his imprisonment. The primary purpose of the Legislature was punishment and correction. The expressed object of -the law is ‘the suppression of mob violence.’ That the Legislature might, in the exercise of the police power, fix the amount of a penalty without the intervention of a jury was long ago decided by this court in Cincinnati, Sandusky & Cleveland Railroad Company v. Cook, 37 O. S., 265. And this being so, it is no concern to the party paying -the penalty, to whom the state, in its sovereignty, may pay it. It may well, as under this statute, turn the-money over to those who suffer by the act of lynching. In .this respect, it makes no difference whether in the statute it be called a penalty, or compensation, or damages. Nor does it alter the case that -the amount is fixed, that is, determined by the statute, as in this case; or that it is to be found by a jury. Nor yet does -it matter that it is declared to be ‘for the suppression of mob violence,’ as in this case, or ‘for compensating parties whose property may be destroyed in consequence of mobs or riots.’ as in the statute which was upheld in Darlington v. The Mayor, etc., 31 N. Y., 187; because the imposition of any amount by authority of the state is, in either case, essentially penal and corrective in its nature. The party paying the money so recovered, that is, as a penalty, has no right to complain that the sovereign pays it over to the person injured, or pay's it for the benefit of the minor children of a person suffering death by lynching, or to the next of kin of such person; nor that the sovereign provides that ‘such recovery ah all not be regarded as a part of the estate of the person lynched, nor be subject to any of his. liabilities. ’ Nor is it a matter which can be put in issue for trial by jury; for the Legislature does not authorize, nor attempt, a compensation of the injury according to the measure >ef the injury, to be settled op $n inquiry of damages,” ' '.......

It seems to me that this reasoning applies in this ease; that is, it makes no difference to the defendant whether the penalty goes to the State or to the individual. The Legislature has enacted, in the nature of a police regulation, a requirement that railway companies shall equip their oars with automatic couplers, and has provided a penalty for a failure to so do, and that the same shall be collected by suit brought by the prosecuting attorney, in the locality where the violation takes place; ancl the fact that the amount collected as a penalty goes to .the State does not make it a criminal statute, so that knowledge and intention are ingredients of the offense which must be proven, beyond a reasonable doubt, to warrant a finding that the law has been violated and the assessment of the penalty.

The object and purpose of this law is to protect the employes and the traveling public, and it would be unwise to give this law such a construction as to destroy the object and purpose of its enactment.

The defendant claims that the law should be liberally construed because of its harsh nature. -Rather should it be reasonably construed to give it that force and effect which will insure to .the public the protection which it affords.

It is not necessary in this decision for me to determine what the law would be, in case it should develop on the trial that this coupler became out of repair while the car was being transported, and that at the first opportunity the car was repaired. Considerations of justice might under some circumstances warrant a court in submitting to a jury such a- defense. But in this case the coupler was broken .and inoperative at the time the defendant received it. It moved this car 2700 feet in that condition for the purpose of having it loaded, and no matter what view the court might take of the law upon a state of facts differ- • ent from the .admitted facts and evidence in this case, the defendant is clearly liable for the penalty prescribed for a violation of this act.

In determining these questions the court should have in mind a due regard for the rights of the employes of these com-, panies as wdl as tjie aampanies themselves, The abject and pur* pose of all such regulation is to protect those who are required to earn a livelihood by working in more or less dangerous places. Railroading is a hazardous business. Many men are required-to follow that business for a livelihood, and the Legislature in its wisdom has seen fit to throw around these men some safeguards that they may not be unnecessarily deprived of their limbs, and ofttimes of their lives, by being compelled to go between cars to make couplings.

If this law is to be liberally construed so that a company may avoid liability by simply pleading ignorance of the condition of its cars and a want of intention to violate the act, then the very purpose of it is defeated. No injustice can be done by holding railroad companies to a strict accountability under this -act, and should it result in the execution of a penalty at some time when it appears to be harsh, it is far better than that the court should give this law such a construction .as- would permit companies to be derelict in this respect, endangering the lives and limbs of the employes of the company and the traveling public. Considerations of humanity -dictated the enactment of this law, and the same considerations call upon the courts to so construe the law and enforce it as will bring to those whom.it was intended to safeguard the fullest and highest degree of protection which this law will afford.

The finding of the court is, that the defendant has violated the law and the penalty of. $100 will be taxed against it.  