Commerce Commission, such as is required by the Act.
We may pass over, without deciding, the contention of the defendants that fish scrap and King Crab Meal are "fish" within the meaning of the Act. The defendants argue that they are "fish", and they must so argue, for otherwise the case cannot be brought within the exemption of Section 203(b) of the Act. But even if we took the view that fish scrap and King Crab Meal are to be regarded as "fish", it does not follow that the information is defective for failure to allege or charge that the vehicle used in the transportation of those commodities was being used for carrying any other property or passengers for compensation.
It is well settled that an information which fails to include an allegation or charge negativing the exemption contained in Section 203(b) is not for that reason defective. There is no obligation on the part of the Government to allege facts showing that the defendant did not fall within the exemption of that clause.
In United States v. Chadwick, D.C., 39 F.Supp. 204, I specifically held that whether or not the transportation of the commodities falls within the exemption is a matter of defense and need not be pleaded in the information. The ruling in that case is dispositive of the defendant's contention here, I said (39 F.Supp. at page 206): "The information does not disclose as to whether the defendant's motortrucks, which hauled the poultry feed, sauer kraut, and peas, were used exclusively to haul agricultural commodities, and the rule is well settled that it is not incumbent upon the government in an indictment or information to negative every exemption and exception which may be available to a defendant to avoid prosecution and conviction. Where, as in the present case, the exception is 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 make up the offense charged, it is a matter of defense and need not be pleaded in the indictment or information. See Hockett et al. v. United States, 9 Cir., 265 F. 588." See also United States v. Cook, 17 Wall. 168, 21 L. Ed. 538; United States v. Union Pacific Railroad Co. et al., D.C., 20 F.Supp. 665.
For the reasons stated, the motion to quash is denied.
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