6o8

THE GREEN BAG

to recover, although he knew of the negli gent condition in which the cars were being operated? The portion of section i which the court quoted in its opinion as applicable to the controversy pending before it, contains only the first proposition to which I have alluded. The court quotes this much only of the section: "Sec. i. That from and after the first day of January, 1898, it shall be unlawful for any common carrier engaged in interstate commerce by railroad to use on its line any locomotive engine in removing interstate traffic not equipped with a power-driving wheel brake and appliances for operating the train-brake system." The court stopped there, leaving out of consideration entirely the second propo sition, which included the element of a "sufficient number" referred to by the Commissioner in his memorandum, and the language used by the court quoted by the Commissioner of Corporations, instead of being applicable to the proposition in the section including the indefinite term "suf ficient number" applied, and applied only to the first proposition in the statute, and had no relation whatever to a construction of this indefinite and indeterminate lan guage. The portion of the statute to which the court referred when it said, " Its terms are plain and free from doubt and its meaning is clear" is not the portion quoted in the Commissioner's memorandum, but is the portion which dec'ared that it was unlaw ful for a common carrier engaged in inter state commerce by railroad to use on its line any locomotive engine in moving inter state traffic not equipped with a powerdriving wheel brake and appliances for operating the train-brake system. The case does not justify the conclusion attempted to be drawn by the Commis sioner in his memorandum. The court did not directly or indirectly, by inference or otherwise, undertake to construe the term

"sufficient number." If the Commissioner had quoted all of the opinion relating to the question there discussed and considered, that fact would have been too obvious for discussion. The Commissioner asserts that a number of convictions have been had under this act and that the point of indefiniteness has never been successfully raised. Not having been able to find any convictions, before I decided to discuss or comment upon this statement of the Commissioner, I called the attention of his bureau to the fact that I had not been able to find any convictions, to say nothing of a number, and asked it to furnish me the facts upon which the Commissioner based his statement. In answer to my inquiry, I was advised "that the statement was evidently made inadvertently," and was enclosed a memo randum furnished it by the Secretary of the Interstate Commerce Commission The memorandum of the Interstate Com merce Commission stated, "There have never been any convictions under the socalled ' Safety Appliance ' law in the sense that they are criminal prosecutions." "There has never been any case brought where the charge was that there was not a ' sufficient number' of cars so equipped with train brakes." " The law was amended, March 2, 1903, for the very reason that it was believed that this was so indefinite that a prosecution under this section would have been almost impossible." I can understand how it may have been an inadvertence in a paper prepared with deliberation for the purpose of sustaining the contention of the Commissioner of Corporations to state that a number of con victions have been had under this act, intending to be understood that they were had under that provision of it relating to a "sufficient number" although there were none. But how it could have been an inadvertence to assert that the point of indefiniteness had never been successfully raised giving the inference that it had been