the definition of the statute. We find every material element contained within that definition, to be properly alleged in the information, and therefore we cannot agree with the first contention of the defendants.
In so far as the second contention is concerned, under the reasoning employed in our treatment of the first contention, we must conclude that the defendants err when they argue that they are charged in the information with 'an operation which is specifically excluded from the provisions of Title 49 U.S.C.A., & c.'
We are left with only the third contention of the defendants which we understand to be a claim that the government was required to specifically negate the fact that they came within the exceptions provided in the statute. Some substance appears to be loaned to their argument by the case of United States v. English, 5 Cir., 139 F.2d 885. In that case the court considered that the introductory clause of section 306(a), viz., 'Except as otherwise provided in this section and in section 310a * * * ,' constituted a deliberate act upon the part of Congress to compel a construction that the exceptions referred to should be read into the affirmative definition of the offense. The court concluded that such exceptions were a part of the enacting clause of the statute and so bound together with the offense defined that the essential ingredients thereof may not adequately be described without a negation of them. The court therefore upheld a motion to quash the information.
The only exception contained within the body of Sec. 306(a) treats of carriers who are entitled to 'grandfather' rights. Generally Sec. 310 concerns itself with the dual holding of certificates and permits by contract carriers. The defendants did not direct their arguments to the limitations contained in Sec. 306(a). They contend that their exemption as taxicab operators under Sec. 303(b)(2) should have been negatived in the information. The English case, supra, gives no support to such a contention.
In addition to that of taxicabs many classifications of motor vehicles and their operation are given immunity in the last mentioned section such as motor vehicles employed solely in transporting school children and teachers, motor vehicles used exclusively for the transportation of hotel patrons between hotels to railroad stations, etc. Any contention that each of these many exceptions should be individually negatived in an information alleging violations of this law cannot be given serious consideration.
In Krause v. United States, 8 Cir., 267 F. 183, a somewhat similar proposal elicited the following comment by the court:
'The exceptions, of which there are many in favor of various classes of persons, are not inherently a part of the statutory definition of the offense. They are exceptions to the general prohibition, as their designation naturally signifies, and whether a person is or is not within them is largely within his own peculiar knowledge. It appears from the information that the accused obtained and used the interstate transportation of himself as a passenger by falsely representing himself as the owner of the carload of live stock. It was no more necessary to allege that he was not in some other sense a caretaker than it was specifically to negative his membership in each and all of the other excepted classes. On the face of the information the transportation was free transportation unlawfully used in the sense of the statute.' Page 184 of 267 F.
The governing principle seems to be stated in the case of McKelvey v. United States, 260 U.S. 353, 43 S. Ct. 132, 67 L. Ed. 301, where the court said:
'By repeated decisions it has come to be settled rule in this jurisdiction that an indictment or other pleading founded on a general provision defining the elements of an offense, or of a right conferred, need not negative the matter of an exception made by a proviso or other distinct clause, and that it is incumbent on one who relies on such an exception to set it up and establish it.' 260 U.S.at page 357, 43 S. Ct.at page 134.
The doctrine was further supported in the case of Edwards v. United States, 312 U.S. 473, 482, 61 S. Ct. 669, 85 L. Ed. 957. See also United States v. Mendelsohn, D.C., 32 F.Supp. 622.
We therefore find the information sufficient. The motion to quash must be overruled and the defendants are directed to plead.
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