rendered for the Government. On the retrial a constitutional question being raised, defendant sought to take the case to the Supreme Court of the United States on writ of error, with the result above stated.

The Circuit Court of Appeals for the First Circuit in the case of Central Vermont Railway Co. v. United States (205 Fed., 40), held that the act of March 2, 1893, requires the coupling device on both ends of cars to be in proper condition, and that it is no defense to an action for violation of the act where the coupler on one end of the car was defective, to show that such coupler was coupled with an effective coupler on an adjoining car and could be opened by the lever on that car.

The Court of Appeals for the Third Circuit has decided that the safety appliance acts, requiring automatic couplers, does not apply to the coupling between a locomotive proper and its tender. Pennell v. Philadelphia & Reading Railway Co. (203 Fed., 681).

On July 29, 1907, a suit was instituted in the District Court of the United States for the Western District of Texas against the Galveston, Harrisburg & San Antonio Railway Co. for hauling a train when less than 75 per cent of the cars had their air brakes used and operated and under the control of the engineer of the locomotive drawing the train. The defense was that after leaving the terminal the air pump on the locomotive broke down, thus rendering the power or air brakes on the cars inoperative; that the repairs to the air pump could not have been made en route unless men were sent out from the station to which the train was destined; and that the defendant was justified in hauling the train to the terminal and controlling its speed by the use of hand brakes. In the district court judgment was rendered in favor of the Government, it being ruled that the company must send out a good engine to take the train in. On appeal the Circuit Court of Appeals for the Fifth Circuit, comprised of Circuit Judges Pardee and Shelby, affirmed the decision of the district court (183 Fed., 579). Subsequently, a rehearing was granted by the Circuit Court of Appeals (192 Fed., xv), and after reargument the court, comprised of the two circuit judges named and District Judge Grubb, reversed its former decision and held that the amendment of 1910 should be considered as a congressional construction of the act of 1893, and hence where the power-brake system of a locomotive drawing an interstate train became defective in transit, and there were no facilities for repairs at the place where the break occurred, the carrier was not liable for penalties under the act in transporting the locomotive and train to the nearest repair point for the purpose of repair. Judge Shelby dissenting (199 Fed., 891). This construction is in conflict with the decision of the Eighth Circuit Court of Appeals in the Colorado Midland case (202 Fed., 732),

referred to in our last annual report, wherein it was held that the proviso of section 4 of the act of April, 1910, is inapplicable to offenses committed before its passage and neither that proviso nor the other provisions of the act relating to that subject operate retroactively. A number of cases involving the construction of the proviso of the amended act of 1910 are now pending in the courts.

In the case of Southern Railway Co. v. Snyder (8 C. C. A., 205 Fed., 868), an employee of the railway was injured while attempting to attach a car having a broken drawhead to another car by means of a chain for the purpose of removing it from the general transfer track where it had been left with other cars, some loaded and some empty, the injury being caused by another switching train striking the standing cars. The Court of Appeals said it was the duty of the railway company to leave the disabled car where it would not be in connection with other cars in commercial use, and not having done so it was still subject to the provisions of the safety-appliance act of March 2, 1893. This decision also held that the act applied to switching movements in yards.

In the case of United States v. New York Central & Hudson River Railroad Co. (205 Fed., 428), Judge Hazel expressed the opinion that it was not sufficient for the Government to show that connected cars, constituting a train, were taken over a part of the main line over which interstate traffic customarily moved, and then to claim from that fact that the transportation assumed an interstate character and automatically became subject to the provisions of the safety-appliance law.

Judge Hazel also decided, in the case of United States v. Grand Trunk Railway Co. of Canada (203 Fed., 775), that section 2 of the safety-appliance act of March 2, 1903, requiring the use of power or train brakes, is broadly phrased and does not contain any exceptions or specifically refer to yard or switching movements or to any conditions under which such brakes are not required to be controlled by the engineer. In this case the words, "any train," were construed to include all trains having cars coupled together and locomotives drawing them, irrespective of whether a caboose is attached or markers displayed.

Judge Sessions, in United States v. Pere Marquette Railroad Co., in the District Court for the Western District of Michigan (Sept. 5, 1913), not yet reported, held that every railroad company engaged in interstate commerce must equip with safety appliances all of its cars and all of its trains, regardless of the service in which they are employed, and that a railroad is liable under the act for moving transfer trains from one yard to another within a

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terminal without having air hose coupled up so that they could be operated from the engine.

In the case of the United States v. Virginian Railway Co., in the District Court of the United States for the Western District of Virginia, suit was instituted against that railroad for running trains on which it required brakemen to use common hand brakes to control the speed of the train. This was a test suit in which the Government sought an interpretation of the air-brake provision of the safetyappliance act. Court overruled a demurrer filed by defendant. The case thereafter was heard by the court without a jury, and on October 13, 1913, judgment in favor of the Government was entered by District Judge McDowell, no opinion being filed.

The case of Erie Railroad v. United States (197 Fed., 287), involving the application of the air-brake provisions of the act to movements within terminals was retried in the District Court of New Jersey, and District Judge Orr ordered a verdict for the defendant. The case upon the new record was brought on writ of error to the Third Circuit Court of Appeals, was argued on October 17, 1913, and is now pending decision by that court.

ASH-PAN ACT.

During the fiscal year ending June 30, 1913, three cases involving five violations of the ash-pan act were transmitted by the Commission for prosecution. Defendants confessed judgment during the year as to 10 counts; 1 count was tried in court, resulting in a verdict for defendant. Penalties to the amount of $1,200, exclusive of costs, were collected and paid into the Treasury, and additional penalties in the sum of $1,000, exclusive of costs previously assessed by the courts, were on July 1, 1913, pending payment by defendants.

HOURS OF SERVICE ACT.

During the fiscal year ending June 30, 1913, 306 cases, involving an aggregate of 3,499 violations of the hours of service act, were transmitted to the several United States attorneys for prosecution. During the same period the carriers confessed judgment as to 1,750 counts. Of the 455 counts which went to trial, 186 resulted in favor of and 269 adversely to the Government. Of the latter, 214 counts have been appealed by the Government, and 63 of the 186 counts originally decided in favor of the Government have been appealed by defendants. Penalties aggregating $100,861.14 were collected, and additional penalties to the amount of $32,350, in addition to costs previously assessed by the courts, were on July 1, 1913, pending payment by the carriers.

Since the publication of its last annual report the Commission has prepared and published a statistical analysis of the various instances,

as exhibited by the carriers' monthly reports, in which employees of railroads were on duty during the fiscal year ending June 30, 1913, for longer periods than those permitted by the hours of service act.

During the year in question 1,222 railroads filed complete reports. Of these, 737 submitted each month certificates under oath to the effect that no specific instances of excess service had occurred on their respective lines. The remaining 485 carriers who submitted reports for each of the 12 months included in, the fiscal year reported an aggregate of all classes of excess service of 301,743 instances in which employees were on duty for longer periods than those prescribed by law.

The carriers' reports have been particularly scrutinized with a view to determine the volume of excess service attributable to causes which might have been prevented. The statistics just published by the Commission show the number of instances in which employees in train service were on duty more than 16 consecutive hours by reason of each of 20 principal causes. These data show also the number of such instances attributable to causes directly affecting the trains on which the men involved were at the time employed, as compared with the number of such instances as to each classification, in which delays to other trains contributed to such excess service. The tables show also a classification based upon the time of the occurrence of contributing delays; that is, whether such delays occurred before or subsequent to 14 hours from the beginning of the various periods of service.

The interested carriers have been furnished with copies of these analyses, and the results already accruing from their preparation have been most gratifying. Many cases of marked improvement have appeared, the most notable being a reduction in the number of cases of excess service, on an important line of railway, from 2,024 to 84 within a period of two months.

Great diversity of opinion prevails among the courts as to the proper penalty to be asessed for violation of the hours of service act, penalties ranging from 1 cent to $250 per count having been assessed in actual cases.

The Commission therefore respectfully renews its former recommendation that the penalty of "not to exceed $500" prescribed for violations of the statute be changed to a fixed and determinate sum, or that a minimum penalty of $100 be established.

The number of instances wherein delays causing excess service are attributed to "hot boxes," " leaky flues," "broken drawbars," and such like causes, is still unduly large, and it is again recommended to the Congress that the terms of the proviso in section 3 of the hours of

service act shall be so amended as to clearly and specifically define excepted causes that shall be considered to excuse excess service.

JUDICIAL INTERPRETATION OF THE HOURS OF SERVICE ACT.

During the year a number of important decisions have been rendered under the hours of service law. On June 10, 1913, the Supreme Court of the United States dismissed a petition for a writ of certiorari to the Circuit Court of Appeals in the case of United States v. St. Louis Southwestern Railway Co. of Texas (229 U. S., 622), in which said railway company was a petitioner for the writ. In this case the Circuit Court of Appeals, November 27, 1912, in per curiam opinion (199 Fed., 990), affirmed the decision of Judge Maxey in the district court (189 Fed., 954), holding that a telegraph office closing four times each day for a period of one hour at each time was a continuously operated day and night office within the meaning of this statute. In the case of United States v. Kansas City Southern Railway Co. (202 Fed., 828) the carrier contended that the proviso in section 3 applied to and excused delays due to the use of poor coal, leaky flues on the engine, and defective shaker rod. The district court sustained this contention, but the Circuit Court of Appeals for the Eighth Circuit reversed the decision of the district court, saying: “To bring itself within the exceptions stated the carrier must be held to as high a degree of diligence and foresight as may be consistent with the object aimed at and the practical operation of its railroad. Conformably to this view it has been uniformly held by the courts that ordinarily delays in starting trains by reason of the fact that another train is late, from sidetracking to give superior trains the right of way if the meeting of such trains could have been anticipated at the time of leaving the starting point, from getting out of steam and cleaning fires, from defects in equipment, from switching, from time taken for meals, and, in short, from all the usual causes incidental to operation are not, standing alone, valid excuses within the meaning of this proviso. The carrier must go still further and show that such delays could not have been foreseen and prevented by exercise of the high degree of diligence demanded.”

The decision per curiam of the Circuit Court of Appeals for the Fifth Circuit in the case of Missouri, Kansas & Texas Railway Co. of Texas v. United States, affirming the decision of District Judge Russell, denied the application of the proviso in section 3 to delays for repair of an engine, delays in meeting trains, and resulting from scarcity of water. This case is now pending decision in the Supreme Court of the United States, certiorari having been granted, and the case submitted to the court on briefs.

In assessing penalty after plea of guilty in the case of United States v. Minneapolis, St. Paul & Sault Ste. Marie Railway Co., de