The opinion of the court was delivered by: MEANEY
Defendant came before this court for trial on a criminal information filed against it under the provisions of the Interstate Commerce Act, 49 U.S.C.A. § 301 et seq., and more particularly under Sec. 306(a) thereof. On the date of trial, but prior to the commencement thereof, the defendant moved to quash the information contending that it is insufficient upon the grounds that (1) it does not sufficiently inform the defendant of the nature and cause of the accusation against it so as to enable it to prepare its defense, and (2) that the exception in Sec. 306(a) of the statute is not negatived so as to show that the accused is not within the exception.
No formal written motion or notice thereof was filed and further proceedings were stayed pending the filing of briefs by both parties on the questions raised by the motion.
The information bringing the defendant into court is in 20 counts of which paragraph 1 of count one is typical of the language of the first paragraph of each count, with the exception that different dates and different points of origin and destination are shown. Paragraph one of count one is in the following language: 'That on, to wit, September 12, 1946, in the District of New Jersey, Apex Express, Inc., a corporation, defendant a common carrier by motor vehicle, unlawfully did knowingly and wilfully engage in an interstate operation on a public highway, in that it did transport a shipment of alcoholic beverages by motor vehicle on public highways from Newark, New Jersey to Washington, District of Columbia, for P. Ballantine & Sons, Consignor, for compensation, without there being in force with respect to defendant a certificate of public convenience and necessity issued by the Interstate Commerce Commission authorizing such interstate operations. (Title 49, Sections 306(a) and 322(a), U.S. Code. (49 U.S.C.A. §§ 306(a), 322(a))) '
The pertinent portions of sec. 306(a), 49 U.S.C.A. § 306(a), provide as follows: 'Except as otherwise provided in this section and in section 310a (49 U.S.C.A. § 310(a))), no common carrier by motor vehicle subject to the provisions of this chapter shall engage in any interstate or foreign operation on any public highway, or within any reservation under the exclusive jurisdiction of the United States, unless there is in force with respect to such carrier a certificate of public convenience and necessity issued by the Commission authorizing such operations: * * *. ' Section 322(a) provides for penalties on violation of any of the provisions of the Act where none are otherwise provided for.
The defendant's first contention is that the information is faulty on the ground that it does not inform the accused of the nature and cause of the accusation against it, so as fully and clearly to inform defendant of the charge to enable it to prepare a defense.
In support of this contention defendant argues that the information recites that the defendant unlawfully did knowingly and wilfully transport 'alcoholic beverages' by motor vehicle from Newark, New Jersey to Washington, D.C. for compensation, without there being in force with respect to defendant a certificate issued by the Interstate Commerce Commission. Defendant then says 'However, as reference to the provisions of (section 306(a) and 322(a)) will indicate, there is nothing therein which sets forth that the transportation of 'alcoholic beverages' by common carrier by motor vehicle without a certificate being issued is unlawful. '
This the defendant argues indicates that the statutes referred to as having been violated by defendant do not make a crime out of the acts complained of in the information, viz.: there being therein no specific reference to the transportation of 'alcoholic beverages'. It is contended further, with ample citation of authorities, that the statutory offense upon which an indictment or information upon which an indictment or information is found must be contained within the statute allegedly violated, and failing in that, the indictment is insufficient.
Defendant's second contention merits greater attention. It is therein argued that the exception in sec. 306(a) is not specifically negated and that such failure is a fatal omission.
Defendant relies principally upon the leading Supreme Court case of United States v. Cook, 84 U.S. 168, 21 L. Ed. 538, and the case of United States v. English, 5 Cir., 1944, 139 F.2d 885. In the Cook case the Court laid down the rule that where a statute defining an offense contains an exception in the enacting clause which is so incorporated with the language defining the offense that the ingredients of the offense cannot be accurately and clearly described if the exception is omitted, the rules of good pleading require that an indictment founded upon the statute must allege enough to show that the accused is not within the exception: but if the language defining the offense is so entirely separable from the exception that the ingredients constituting the offense may be accurately and clearly defined without any reference to the exception, the pleader may safely omit any such reference, as the matter contained in the exception becomes a matter of defense to be shown by the accused.
The rule set forth in the Cook case is unquestioned, but its application to the section of the statute here in question is less certain, both to counsel who both cite the Cook case, supra, to support their positions and to the courts where the precise question at bar has been oppositely decided in recent years. Compare United States v. English, 1944, supra and United States v. Kelly, D.C. 1945, 63 F.Supp. 977.
In this court's opinion, the more applicable rule to the instance case is that found in McKelvey v. United States, 260 U.S. 353, 357, 43 S. Ct. 132, 134, 67 L. Ed. 301, where the court stated: 'By repeated decisions it has come to be a 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, whether in the same section or elsewhere, and that it is incumbent on one who relies on such an exception to set it up and establish it. '
In United States v. Kelly, supra, the court in considering the identical question with that presently before this court concluded that within the rule of the Cook case the exceptions in section 306(a) were not so incorporated with the substance of the clause defining the offense as to constitute a material part of the description of the acts which constitute the offense.
In considering the exception or exceptions contained within section 306(a) the court stated (63 F.Supp. 978): 'However, none of these defined the offense in any of its particulars. It is complete without any of them and none of the ingredients of the crime are missing without them. Their only function, if they be exceptions in fact, is to except some carriers by motor vehicle operating interstate from the necessity of securing a certificate. None of them help mark out the scope of the statutory requirement in the first instance. * * * In other words, the exceptions or so-called exceptions do not define the statutory duty; they merely ...