ELGIN, J. & E. RY. CO. v. UNITED STATES, 227 F. 411

MACK, Circuit Judge (after stating the facts as above). While questions as to the scope of the Commission’s order and the existence of an emergency have been fully presented, we find it unnecessary to determine them, in view of the conclusions which we have reached as to the construction of

section 20. The

section originally required annual reports from, carriers. A mass of detailed statistical information was to be included therein. Accurate information was, of course, desirable. Whoever was charged with the duty of preparing and swearing to such a report must necessarily, however, rely upon the statement of others and upon doc ■ uments and statistics. Clerical errors might readily occur; both the facts and the law applicable thereto might be uncertain, and give rise to what might ultimately be held a mistaken

interpretation. While Congress undoubtedly expected and required an accurate report, it did not, in this section, prescribe a penalty for failure to make the report absolutely exact, but for failure to make and file a report within a specified time. Errors and omissions, whether accidental or willful, might readily escape detection by the executive officials of the carrier and by the Commission; but a failure ho file any annual report within the fixed period would be quickly discovered.

The penalty of $100 for each day’s delay in filing the report would be sufficient to compel prompt attention to such a requirement. A willfully false sworn report would subject the affiant to the penalties for perjury and the carrier to indictment under

section 10 of the act. These were the express statutory safeguards designed to assure the required accuracy. But in the absence of a clear expression of such intention it will not be presumed that Congress purposed inflicting on the carrier such a penalty as $100 a day for the innocent omission or innocent misstatement of some one of the thousands of facts required to be reported annually. No such expression appears in, and no such intention is to be gathered from, the words of the statute.

The penalty prescribed is not for filing a false or erroneous report; unlike the acts considered in 134,901 Feet of Pine Lumber, 4 Blatchf. 182, Fed. Cas. No. 10,523, and The Ship Anna, 1 Dall. 197, 1 L. Ed. 98, the statute does not expressly characterize the required report as a true report, and punish the failure to make such a report; what it penalizes is the delay in filing any report of the general character specified in the act.

To interpret the penal clause broadly as covering a failure not merely to file a report, but also to include therein each item with absolute accuracy, would violate the fundamental rules for the construction of penal statutes, and, in case the error remained undiscovered for a long time, would subject the carrier to enormous and entirely disproportionate penalties. The amendment of 1910 emphasizes this construction; it repeats the words of the original clause; it again exacts the penalty for the delay in filing the required report, not for omissions therefrom.

While the likelihood of clerical errors, and perhaps of mistakes either of law or of fact, may be less in periodical or special reports than in the general annual report, the amendment is to be construed in harmony with the original act; so construed, it cannot be held to extend to omissions from or misstatements in the periodical report filed in due time, whether such omissions or misstatements be willful or accidental. We concur fully in the opinion rendered by Judge Sanborn in U. S. v. N. P. Ry. Co., 213 Fed. 162, — C. C. A. — (C. C. A. 8th Circuit), followed in O.-W. R. & N. Co. v. U. S., 222 Fed. 887,-C. C.

A.- (C. C. A. 9th Circuit). Compare, too, U. S. v. Four Hundred and Twenty Dollars (D. C.) 162 Fed. 803. As the sufficiency of the declaration has not been and is not questioned by plaintiff in error, it may be construed, especially after verdiet, as charging in substance that no report of service for December, 1912; was rendered; this averment, however, is contrary to conceded facts. A verdict for defendant should have been directed. Tlie judgment will be reversed, and the cause remanded for retrial. <&wkey;For other cases secTsameTopio & KEY-NUMBER in all Key-Numbered Digests & Indexes