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the Government intervene to preserve the integrity of the law.

Johnson had practically exhausted his scanty resources, and was unable to furnish the bond that was necessary to accompany the petition for the writ of certiorari, but this was arranged for him by a friend in Washington, and Hon. Henry M. Hoyt, Solicitor General of the United States, whose work in connection with the case can not be too highly praised, drew the petition for the writ. It must be remembered that a rehearing in matters of this kind is rare, as the de

this petition was so admirably done that the Supreme Court acted favorably upon it; the case was ordered up for review, and the Government was granted the right to intervene and file a brief and make arguments. In other words, the Government of the United States became a party to the suit, to the extent of using all the resources of the Department of Justice in aid of poor Johnson's attempt to secure a review and reversal of the decision of the Circuit Court of Appeals by the Supreme Court of the United States.

The Supreme Court having consented to review the case, the next point was the preparation of briefs and a proper presentation of evidence to convince the Supreme Court that the decision of the Circuit Court of Appeals should be reversed. This involved an immense amount of labor and research. Points of law bearing on the case had to be looked up and properly arranged, and the entire legislative history of the act, together with the conditions and circumstances that made it necessary, had to be placed in proper sequence and set forth in concise form and with such clearness and force as to convince the Supreme Court. It was, indeed, fortunate that this work came under the supervision of such men as Attorney General Knox and Solicitor General Hoyt. Both gentlemen displayed a wide and intelligent grasp of the vital points involved and a keen appreciation of the importance of the case to railroad employés. It was fortunate, too, that upon Mr. Knox's retirement he was succeeded by such a man as Attorney General Moody, as he immediately familiarized himself with the case and became interested in it, coöperating earnestly with Mr. Hoyt in the preparation of the case after Mr. Knox's retirement. Both Attorney General Moody and Solicitor General Hoyt signed the brief for the Government, and Mr. Hoyt made an admirably clear and convincing argument before the Supreme Court at the hearing of the case.

In the meantime, and supplemental to the work of the officers of the Government, Hon. W. L. Maginnis, of Ogden,

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mirably complete presentation which resulted. Much credit is also due Brother Fuller, our legislative representative in Washington, for his advice and assistance in preparing the case.

Mr. Maginnis followed Solicitor General Hoyt at the hearing of the case with an oral argument of great clearness and force. It is doubtful if any case of this character, the plaintiff being an uninfluential and practically penniless person, ever

was rendered on December 19th. The opinion was written by Chief Justice Fuller himself, and is unanimously concurred in by the other members of the court. It completely reverses the decision of the Circuit Court of Appeals and sustains the law at every point wherein it had been weakened. . In his opinion, Chief Justice Fuller discloses a full appreciation of the importance and humane purpose of the law, as well as a remarkable knowledge of the technical details of railway operation. The opinion is convincing, clear, terse and vigorous, free from quibbles and technicalities, and full of sound common sense. The result demonstrates that no matter how humble the litigant, if he can only reach the highest court in our land with a proper presentation of his case he will receive justice, no matter what may be the action of the lower courts. The points in the opinion of Judge Sanborn, of the Circuit Court of Appeals, and of Chief Justice Fuller, of the United States

with automatic couplers in interstate commerce.

2. This is a penal statute, and it may not be so broadened by judicial construction as to make it cover and permit the punishment of an act which is not denounced by the fair import of its terms. The acts which this statute declares to be unlawful, and for the commission of which it imposes a penalty, were lawful before its enactment and their performance subjected to no penalty or liability It makes that unlawful which was lawful before its passage and






Supreme Court on reversal are presented below for comparison:

What Judge Sanborn said:

1. As Congress expressed in this statute (Act of March 2, 1893) no intention to forbid the use of locomotives which were not equipped with automatic couplers, the legal presumption is that it had 'no such intention, and provisions to import such an intention into the law and to effectuate it may not be lawfully enacted by judicial construction. The statute does not make it unlawful to use locomotives that are not equipped

it imposes a penalty for its performance. Nor is this penalty a mere forfeiture for the benefit of the party aggrieved or injured. It is a penalty prescribed by the statute and recoverable by the govern

It is, therefore, under every definition of the term a penal statute.

3. There is nothing in it (Act of March 2, 1893) which requires a common carrier engaged in interstate commerce to have every car on its railroad equipped with the same kind of coupling, or which requires it to have every car equipped with a coupler which will couple automatically with every other coupler with which it may be brought into contact in the usual course of business upon a great transcontinental system of railroads. * * * It does not bar the handling and use of a car which will couple automatically with couplers of its kind because it will not also couple automatically with couplers of all kinds, and it would be an unwarrantable extension of the terms and efficient automatic couplers such as Janney couplers or the Miller Hooks, which will couple automatically with those of their kind, fully and liter

have been used in moving interstate traffic, either while it was standing on the sidetrack or while it was going to and returning from the turntable? If the defendant had drawn it vacant over every foot of its railroad it would not have been engaged in moving interstate traffic, and it would not have fallen under the ban of the statute.

What Chief Justice Fuller said:

1. It was as necessary for the safety of employés in coupling and uncoupling that locomotives should be equipped with automatic couplers as it was that

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freight and passenger and dining-cars should be, perhaps more so, as Judge Thayer suggests, “since engines have to make couplings more frequently." And manifestly the word "car” was used in its generic sense. There is nothing to indicate that any particular kind of car was meant. Tested by context, subject matter and object, “any car" meant all kinds of cars running on rails, including locomotives. And this view is supported by the dictionary definitions and by many judicial decisions, some of them having been rendered in the construc

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tion of this act. The result is that if and they are not to be construed so the locomotive in question was not strictly as to defeat the obvious intenequipped with automatic couplers, the tion of the legislature." U. S. company failed to comply with the pro Lacher, 134 U. S., 624. visions of the act.

3. The view of the Circuit Court of 2. The primary object of the act was Appeals, which limits the second section to promote the public welfare by secur to merely providing automatic couplers, ing the safety of employés and travelers. does not give due effect to the words and it was in that aspect remedial, while "coupling automatically by impact, and for violations a penalty of one hundred which can be uncoupled without the nedollars, recoverable in a civil action, was cessity of men going between the ends provided for, and in that aspect it was of the cars," and can not be sustained. penal. But the design to give relief was * * * The risk in coupling and uncoup

ling was the evil sought to be remedied, and that risk was to be obviated by the use of couplers actually coupling automatically. The Circuit Court of Appeals was of opinion that it would be an unwarrantable extension of the terms of the law to hold that where the couplers would couple automatically with couplers of their own kind, the couplers must so couple with couplers of different kinds. But we think that what the act plainly forbade was the use of cars which could not be coupled together automatically by impact, by means of the couplers actually used on the cars to be coupled. The object was to protect the lives and limbs of railroad employés by rendering it unnecessary for a man operating the couplers to go between the ends of the cars, and that object would be defeated, not necessarily by the use of automatic couplers of different kinds, but if those different kinds would not automatically couple with each other. The point was that the railroad com

panies should be compelled, respectively, HON. EDW. A. MOSELEY,

to adopt devices, whatever they were, Secretary Interstate Commerce Commission, whose

which would act so far uniformly as to interest in the case was of invaluable assist eliminate the danger consequent on men ance in protecting the intent of the law.

going between the cars. * * * The risk

in coupling and uncoupling was the evil more dominant than to inflict punish- sought to be remedied, and that risk was ment, and the act might well be held to to be obviated by the use of couplers fall within the rule applicable to stat actually coupling automatically. * * * utes, to prevent fraud upon the revenue, In the present case the couplers would and for the collection of customs, that not work together, Johnson was obliged rule not requiring absolute strictness of to go between the cars, and the law was construction. Moreover, it is settled

not complied with. that “though penal laws are to be con 4. Another ground on which the destrued strictly, yet the intention of the cision of the Circuit Court of Appeals legislature must govern in the construc was rested remains to be noticed. That tion of the penal as well as other statutes; court held by a majority that as the

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