It made or to be made by said the Pullman | intent of Congress. Johnson v. Southern Company, and do agree to protect, in- P. Co. 196 U. S. 1, 49 L. ed. 363, 25 Sup. demnify, and hold harmless said the Pull- Ct. Rep. 158, 17 Am. Neg. Rep. 412. man Company with respect to any and all applies broadly to any employee of a rai!sums of money it may be compelled to pay road company injured while engaged in or liability it may be subject to, under any interstate commerce. Of course, if plaintiff such contract, in consequence of any in- was in the employ of defendant at the time jury or death happening to me, and this of the accident, he would be entitled to agreement may be assigned to any such maintain his action under § 5 of the act corporation or person and used in its de- of 1908, irrespective of the contract of emfense. ployment. Hence, the case turns solely upon the nature of plaintiff's employment. "Sixth. I will obey all rules and regulations made or to be made for the government of their own employees by the corporations or persons over whose lines of railroad the cars of said the Pullman Company may be operated while I am traveling over said lines in the employment or service of said the Pullman Company; and I expressly declare that while so traveling I shall not have the rights of a passenger with respect to such corporations or persons, which rights I do expressly renounce; and I hereby, for myself, my heirs, executors, administrators, or legal representatives, forever release, acquit, and discharge any and all such corporations and persons from all claims for liability of any nature or character whatsoever on account of any personal injury or death to me while in said employment or service." This appeal turns upon two questions: First: Was plaintiff, at the time of the injury, an employee of defendant railroad company, and, as such, entitled to maintain his action under the provisions of the employers' liability act of April 22, 1908 (35 Stat. at L. 65, chap. 149, Comp. Stat. 1913, § 8657)? Second: Does the contract of employment between plaintiff and the Pullman Company constitute a bar to recovery against the railroad company? The contract between the Pullman Company and the Baltimore & Ohio Railroad Company, whereby the latter company agreed to operate parlor and sleeping cars, was substantially a contract on the part of the railroad company to haul the cars of the Pullman Company. The material stipulations of the agreement were that the Pullman Company should "furnish sleeping and parlor cars properly equipped and acceptable to the railroad company sufficient to meet the requirements of travel over" the railroad company's lines; that the Pullman Company should keep its cars in good order and repair; that it should "have the right to collect from the occupants of Pullman cars, for the use of seats and berths therein, such fares as are customary on competing lines of railroad," and that the Pullman Company should "furnish agents or inspectors to supervise the conduct of employees, cleanliness of cars, etc., while enroute, and the railroad company will transport free over its own lines the employees, agents, or inspectors" of the Pullman Company. The railroad company agreed that its ticket agents, at such offices as should be agreed upon, should "sell tickets for seats and berths in such cars without charge to the Pullman Company;" that "the railroad company shall haul the cars furnished by the Pullman Company under this agreement on its passenger trains in such manner as may be necessary to meet the requirements of travel," and "shall not be entitled to receive compensation from the Pullman Company for the movement of cars furnished under this agreement." Section 1 of the act of 1908 provides: "That every common carrier by railroad while engaging in commerce between any of the several states or territories, or between any of the several states and territories, or between the District of Columbia, and any of the states or territories, . . . shall be liable in damages to any person suffering in- The Pullman Company employed plainjury while he is employed by such carrier in tiff in the capacity of porter, and he was such commerce, resulting in whole acting as such in one of the company's cars or in part from the negligence of any of at the time he was injured. The car was the officers, agents, or employees of such not operated nor controlled by defendant. carrier, or by reason of any defect or in- Defendant, under its agreement with the sufficiency due to its negligence, in its cars, Pullman Company, was simply hauling the engines, appliances, machinery, track, road- car. True, it was hauled for the accommobed, works, boats, wharves, or other equip- dation of the passengers traveling upon dement." It is unnecessary to enter into a fendant's train; but the railroad company discussion of the rules of construction ap- assumed no responsibility for the manageplicable to this act. While it is in deroga- ment of the car or its equipment. The tion of the common law, it should be con- Pullman Company sold passengers the strued so as to give effect to the evident' tickets which entitled them to the privi leges of its car. The proceeds went to the Pullman Company. Its conductor and porter looked after the accommodation of the passengers while in and about the car. In fact, so far as the control of the car was concerned, it was as complete as if the entire train had been operated by the Pullman Company. The railroad company in its contract with its passengers did nothing that limited the Pullman Company's control of its cars. The duty which the railroad company assumed to carry its passengers safely, whether in its cars or in the cars of the Pullman Company, arose from its contract in the sale of tickets entitling them to transportation, and not from their purchase from the Pullman Company of tickets entitling them to the additional privilege of riding in its cars. Plaintiff insists that at the time of the accident he stood in the relation of an employee of defendant company, and bases his contention chiefly upon a suggestion in the decision in the case of Baltimore & O. S. W. R. Co. v. Voigt, 176 U. S. 498, 44 L. ed. 560, 20 Sup. Ct. Rep. 385. In that case, an express messenger had been injured through the alleged negligence of the railroad company. As a condition of his employment by the express company he had executed a release exempting the railroad company from liability for injuries he might sustain as an express messenger on the railroad. The release was held to constitute a bar to recovery against the railroad company. Importance is attached, however, to the following statement of the court: "The relation of an express messenger to the transportation company, in cases like the present one, seems to us to more nearly resemble that of an employee than that of a passenger. His position is one created by an agreement between the express company and the railroad company, adjusting the terms of a joint business, the transportation and delivery of express matter. His duties of personal control and custody of the goods and packages, if not performed by an express messenger, would have to be performed by one in the immediate service of the railroad company. And, of course, if his position was that of a common employee of both companies, he could not recover for injuries caused, as would appear to have been the present case, by the negligence of fellow servants." It will be observed that the court did not say that the express messenger was an employee of the railroad company. In distinguishing his position from a passenger it said it seemed to "more nearly resemble that of an employee than that of a passenger." The same distinction was made as to a Pullman porter by this court in Hughson v. Richmond & D. R. Co. 2 App. D. C. 98, where it was held that a Pullman porter was not an employee of the railroad company. The court, speaking through Chief Justice Alvey, said: "But though the plaintiff was not a servant of the railroad company, and therefore not a coservant with the employees of that company, and consequently not subject to the principle of nonliability of the master for the negligence of his servant producing an injury to a fellow servant, yet the plaintiff was not a passenger in any such sense as to require of the railroad company the highest degree of skill and care in the construction and maintenance of its roadway and machinery, and the operation of its road and the running of its trains, such as are required in the case of a passenger." In their relation to the railroad company, we think there is a marked distinction between an express messenger and a Pullman porter. As was suggested in the Voigt Case, the express messenger occupied a position created by agreement between the express company and the railroad company. He performed duties which, if not performed by him, would have to be performed by the railroad employees. Express matter, when received by the railroad company under its contract with the express company, like freight, has to be handled and cared for. If not looked after by the agents of the express company, the duty would devolve upon the employees of the railroad company. Not so with a Pullman car. It is a vehicle of a common carrier independent of the railroad company. The mere fact that the Pullman Company employs the railroad company to haul its cars does not affect its relation to the public. The railroad company is not under obligation to haul Pullman cars, as it is at common law to carry passengers and freight. Russell v. Pittsburgh, C. C. & St. L. R. Co. 157 Ind. 305, 55 L.R.A. 253, 87 Am. St. Rep. 214, 61 N. E. 678. Passengers occupy Pullman cars under contract with the Pullman Company, and not the railroad company. The service rendered by the porter forms no part of the contractual duty of the railroad company to its passengers. "It is no part of the contract or obligation of a common carrier of passengers to furnish berths, or the services of a porter to make up beds or perform other services for passengers. The passenger pays the Pullman Company for the services performed by it, and not the railroad company, and if one desires such services as are rendered by the Pullman Company and its porter he must contract with that company for them." Chi cago, R. I. & P. R. Co. v. Hamler, 215 Ill. Counsel for plaintiff place strong reliance Pullman car was not an employee of the This brings us to the contract of employ- commerce. There is no importance to be attached to the mere fact that after the execution of the contract of employment plaintiff's salary was increased, and he was assigned the additional duty of occasionally collectThis did not relieve ing railroad tickets. him from the obligations of his contract. It did not affect his waiver of right to maintain this action against defendant company. He was originally employed as a Pullman porter, and at the time of the alleged accident still retained that position. 2. The complaint set forth in this case charges the offense substantially in the language of § 9752, Gen. Stat. 1909, except as to the proviso at the end of such section, and is not defective by reason of the failure to negative such proviso. Weights and measures statutory reg ulation - constitutionality. 3. Sections 9751 and 9752, Gen. Stat. 1909, are not unconstitutional and void as being repugnant to either § 17, art. 2, of the Constitution of the state of Kansas, or to the 14th Amendment to the Constitution of the United States. (November 5, 1910.) A PPEAL by the State from a judgment of the District Court for Saline commenced under §§ 751 and 9752 of the General Statutes of 1909, which provide: "Sec. 14. A print, or package of butter shall contain 16 ounces avoirdupois, and when a print or package of butter containing less than 16 ounces avoirdupois shall be sold its net weight shall be disclosed by the seller to the buyer, or a statement of the net weight be made upon a label attached thereto. "Sec. 15. A person who, by himself or by his servant or agent, or as the servant or the agent of another, uses a weight, measure, balance or measuring device that is false and does not conform to the authorized standard for determining the quantity of any commodity or article of merchandise, or sells or exposes for sale less than the quantity which he represents, or sells or offers for sale commodities in a manner contrary to law, shall be deemed guilty of a misdemeanor, and shall, upon conviction thereof, be fined in a sum of not less than $5 nor more than $100, or by imprisonment in the county jail for not more than ninety days, or by both such fine and imprisonment. He shall also be liable to the injured party in double the amount of the property wrongfully taken or not given, and $10 in addition thereto, to be recovered in any court of competent jurisdiction. The selling and delivery of any commodity or article of merchandise shall be prima facie evidence of representations on the part of the vendor that the quantity sold and delivered was the quantity bought by the vendee. There shall be taken into consideration the usual and ordinary leakThis is a prosecution commenced before age, evaporation or waste that there may D. R. Wagstaff, a justice of the peace of the be from the time the package is filled by city of Salina, in Saline county, Kansas, the vendor until the selling of the same; against P. F. Edquist and the Belle a slight variation from the stated weight, Springs Creamery Company, a corporation. measure or quantity for individual packThe defendant Edquist filed his mo- ages is permissible, provided this variation tion to quash the amended complaint on is as often above as below the weight, measFebruary 9, 1910, which motion was by Jus-ure or quantity stated." tice Wagstaff denied. Thereafter trial The first count of the amended complaint was had, Edquist was acquitted, and the creamery company was convicted. The corporation appealed its case to the district court and there refiled the motion to quash. The district court sustained the motion and the state appeals. The prosecution was Statement by Smith, J.: Headnotes by SMITH, J. Note. reads: "A. E. Ice, being duly sworn according to law, on oath says: That the said defendant on or about the 3d day of September, 1909, in the said county of Saline and state of Kansas, then and there did unlawfully expose for sale and sell and deliver to D. W. Witwer and J. C. Stevens, partners doing business under the firm name and style of Witwer & Stevens, one certain print and package of butter, which said print and package of butter, after taking into consideration the usual and As to criminal responsibility of corporation, see pages 40 et seq. of the note to Com. v. Sacks, 43 L.R.A. (N.S.) 2, covering the general subject of the criminal lia-ordinary leakage, evaporation, and waste bility of master for acts of servant. Specifically, as to the criminal responsibility of a corporation for homicide, see note to People v. Rochester R. & Light Co. 21 L.R.A. (N.S.) 998. from the time the same was filled until it was sold and exposed for sale as aforesaid, did not then and there weigh 16 ounces avoirdupois, and which said print and pack age of butter did not then and there have a label attached thereto with the net weight thereon, and the said defendant did not then and there disclose the net weight of said print and package of butter so sold and exposed for sale as aforesaid to the buyer thereof, and that the said defendant, the Belle Springs Creamery Company, is a corporation duly organized and doing business under the laws of the state of Kansas; contrary to the statutes in such cases made and provided, and against the peace and dignity of the state of Kansas." Each of the other counts of the complaint is similar to the first count, except that other and different sales are alleged in each count from that specified in the first count. Messrs. F. S. Jackson, Attorney General, John Marshall, and Charles D. Shukers, Assistant Attorneys General, and Frank T. Knittle, for the State: Where the statute sets out the acts which constitute an offense, a complaint or information which follows the statute is sufficient. State v. Seely, 65 Kan. 185, 69 Pac. 163; State v. Foster, 30 Kan. 365, 2 Pac. 628; State v. Bellamy, 63 Kan. 144, 65 Pac. 274, | 14 Am. Crim. Rep. 497; 10 Enc. Pl. & Pr. 483; State v. Tanner, 50 Kan. 365, 31 Pac. 1096; State v. Ready, 44 Kan. 697, 26 Pac. 58; State v. Gavigan, 36 Kan. 327, 13 Pac. 554; State v. Beverlin, 30 Kan. 612, 2 Pac. 630; Com. v. Bartholomew, 17 Ky. L. Rep. 1133, 33 S. W. 840. state of Kansas, and is not repugnant to § 17 of article 2 of the Constitution. Noffzigger v. McAllister, 12 Kan. 321; Keyes v. Snyder, 15 Kan. 143; McBride v. Reitz, 19 Kan. 123; Norton County v. Shoemaker, 27 Kan. 77; State v. Butts, 31 Kan. 537, 2 Pac. 618; Koester v. Atchison County, 44 Kan. 141, 24 Pac. 65; Eichholtz v. Martin, 53 Kan. 486, 36 Pac. 1064; McAunich v. Mississippi & M. R. Co. 20 Iowa, 338; Iowa Electric Medical College Asso. v. Schrader, 87 Iowa, 659, 20 L.R.A. 355, 55 N. W. 24; Chicago v. Bowman Dairy Co. 234 Ill. 294, 17 L.R.A. (N.S.) 684, 123 Am. St. Rep. 100, 84 N. E. 913, 14 Ann. Cas. 700; Chesney v. McClintock, 61 Kan. 100, 58 Pac. 993; Campbell v. Labette County, 63 Kan. 377, 65 Pac. 679; State ex rel. Godard v. Downs, 60 Kan. 788; Tarman v. Atchison, 69 Kan. 483, 77 Pac. 111; Parker-Washington Co. v. Kansas City, 73 Kan. 722, 85 Pac. 781; State ex rel. Jackson v. Butler County, 77 Kan. 527, 94 Pac. 1004. The statute is within the police power of the state, and is for the purpose of preventing fraud, and to compel persons and corporations to give 16 ounces of butter for a pound. 19 Cyc. 1087; Chicago v. Bowman Dairy Co. 234 Ill. 294, 17 L.R.A. (N.S.) 684, 123 Am. St. Rep. 100, 84 N. E. 913, 14 Ann. Cas. 700; Com. v. McArthur, 152 Mass. 522, 25 N. E. 836; Blaker v. Hood, 53 Kan. 509, 24 L.R.A. 854, 36 Pac. 1115; State v. Wilson, 61 Kan. 32, 47 L.R.A. 71, 58 Pac. 981; The word "person," as used in the stat- McLean v. State, 81 Ark. 304, 126 Am. St. ute, inc.udes corporations. Williams v. Metropolitan Street R. Co. 68 Kan. 17, 64 L.R.A. 794, 104 Am. St. Rep. 377, 74 Pac. 600, 1 Ann. Cas. 6; State ex rel. Kellogg v. Atchison County, 44 Kan. 188, 24 Pac. 87; State v. Herold, 9 Kan. 194; North Missouri R. Co. v. Akers, 4 Kan. 470, 96 Am. Dec. 183; Standard Oil Co. v. State, 117 Tenn. 618, 10 L.R.A. (N.S.) 1015, 100 S. W. 706; West Virginia Transp. Co. v. Standard Oil Co. 50 W. Va. 611, 56 L.R.A. 804, 88 Am. St. Rep. 895, 40 S. E. 591; 10 Cyc. 1208, ¶ 8; Thomp. Corp. 2d ed. § 5455; United States v. MacAndrews & F. Co. 149 Fed. 835; State v. Baltimore & O. R. Co. 15 W. Va. 362, 36 Am. Rep. 803; Telegram Newspaper Co. v. Com. 172 Mass. 294, 44 L.R.A. 159, 70 Am. St. Rep. 280, 52 N. E. 445; State v. Williams, 74 Kan. 180, 85 Pac. 938; State v. Boogher, 3 Mo. App. 442; State v. Bancroft, 22 Kan. 170. A general law has a uniform operation throughout the state, if it applies to all persons operating within its terms. This is a general act applying to all persons who expose for sale and sell butter within the Rep. 1037, 98 S. W. 729, 11 Ann. Cas. 72; Kansas P. R. Co. v. Mower, 16 Kan. 573; Eaton v. Kegan, 114 Mass. 433; People v. Wagner, 86 Mich. 594, 13 L.R.A. 286, 24 Am. St. Rep. 141, 49 N. W. 609; Powell v. Pennsylvania, 127 U. S. 678, 32 L. ed. 253, 8 Sup. Ct. Rep. 992, 1257; 30 Am. & Eng. Enc. Law, 451, 456; Meffert v. State Bd. of Medical Registration (Meffert v. Packer) 66 Kan. 710, 1 L.R.A. (N.S.) 811, 72 Pac. 247; Isenhour v. State, 157 Ind. 517, 87 Am. St. Rep. 229, 62 N. E. 40; Blue v. Beach, 155 Ind. 131, 50 L.R.A. 64, 80 Am. St. Rep. 195, 56 N. E. 89; State Bd. of Health v. Roy, 22 R. I. 538, 48 Atl. 802; State ex rel. Atty. Gen. v. Capital City Dairy Co. 62 Ohio St. 350, 57 L.R.A. 181, 57 N. E. 62. Messrs. G. W. Hurd, Arthur Hurd, and Ferry, Doran, & Magaw, for appellee: The complaint is insufficient. Evans v. United States, 153 I. S. 598, 38 L. ed. 835, 14 Sup. Ct. Rep. 934, 9 Am. Crim. Rep. 668; 1 Archbold, Crim. Pr. & Pl. p. 265, note 1; State v. Godfrey, 24 Me. 232, 41 Am. Dec. 382; 1 Chitty, Crim. Law, p. 284; State v. Gurney, 37 Me. 149; |