United States v. Roehrig , 51 F. 302 ( 1892 )

Thayer, District Judge.

Under the agreed statement it does not appear that the steamer liad the right, under any circumstances, to carry the coal oil in question, as the statement of facts recites that the coal oil carried would not ignite “at less than 100 deg. Fahrenheit.” The inference is that it would ignite above that temperature. Lt will he observed that coal oil cannot be carried, under any circumstances, on a passenger steamer, unless it will bear a test of 110 dog. Fahrenheit. Rev. Ft. § 4472. I presume, however, that the stipulation was intended to read “1 10 deg.,” and will accordingly decide the case on that assumption. The word “ practicable,” as used in the statute, (section 4472.) has been held to mean “commercially practicable,” as distinguished from “'physically or mechanically practicable,” and that seems to be a very reasonable, if not a necessary, interpretation of the statute. U. S. v. Wise and U. S. v. Thornburg. 6 Fed. Rep. 41, and 7 Fed. Rep. 190. Lt appears from the agreed statement that there was a practicable mode of transporting the coal oil in question from Ft. Louis to Osage City and Bonnett’s Mills otherwise than by steamer. It might have beeen carried by rail between those' points for about the same price charged by the steamer. On the other hand, it appears that there was no practicable mode of transporting it from Osage City and Bouuett’s Mills to the points further up the Osage river to which it was destined than by steamer. Does this latter fact render the transportation of the commodity from St. Louis to Osage City and Bonnett’s Mills by a passenger steamer lawful? The court decides this question in the negative. It was not commercially impracticable, as the agreed statement shows, to ship the oil to its ultimate destination partly by rail and partly by water. It had to be unloaded, in any event, at Osage City and Bonnett’s Mills, and to be thenc'e forwarded to its destination by another steamer, as the steamers that ply on the Missouri river cannot ordinarily ascend the Osage; and the total cost of transportation over the whole route, if carried frota St. Louis to the latter place by rail, wmuld not, as it seems, have been máterially greater than if carried for the whole distance by water. If it be conceded that inflammable commodities, like coal oil, can be lawfully carried on passenger steamers merely because the ultimate point'of • destination is a short distance oif the line of a railroad, then it would frequently happen that such commodities would be carried for long distances by water, thereby enhancing the dangers of travel and defeating the beneficent purposes of the act. The court is accordingly of the opinion that when, as in the'present ease, it is commercially practicable to transport such a commodity as coal oil by rail for a considerable portion of the distance to be covered, and thence by water to its ultimate destination, that method of transportation, is the Only oneihat can be lawfully employed, even though it is possible to transport it for the entire distance by water, and not possible to transport it the entire distance by rail. Entertaining these views, judgment will be entered for the government on the second count, and also oh- the- first count, of the information.