Southern Pac. Co. v. United States

• Decision Date: 06 July 1909
• Docket Number: 1,672.
• Citation: 171 F. 360
• Parties: SOUTHERN PAC. CO. v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

171 F. 360

SOUTHERN PAC. CO. v. UNITED STATES.

No. 1,672.

United States Court of Appeals, Ninth Circuit.

July 6, 1909

The defendant in error filed its complaint against the plaintiff in error, a common carrier and lessee of railroads and lines of roads, alleging that on August 30, 1906, at Reno, Nev the plaintiff in error received a consignment of sheep consigned by T. Fallon to the Western Meat Company, of South San Francisco, Cal.; that after loading the sheep at Reno and while transporting the same to South San Francisco, and until unloading was commenced at that place, the plaintiff in error did knowingly and willfully confine said sheep in said cars for more than 36 consecutive hours as per request attached, namely, for 38 hours and 45 minutes, without unloading them for rest, water, and feed; that the plaintiff in error was not prevented by storm, or unavoidable cause or accident which could not have been anticipated or avoided by the exercise of due diligence and foresight, from unloading said sheep for rest, water, and feeding during their said conveyance; and that the cars were not such in which the sheep could have sufficient feed, water, space, and opportunity to rest. The plaintiff in error filed a plea in abatement alleging that at the time of the commencement of the action there had been commenced, and were pending in the same court, between the same parties, three other actions for the same cause of action alleged in the complaint in this cause, and that this action constitutes the splitting of a single cause of action. A demurrer to the plea was sustained and the plaintiff in error answered, alleging that it was not guilty of any violation of said act, and did not knowingly or willfully confine said sheep for a longer period than 36 hours; that there was a written request for an extension to 36 hours, but that the time expired in the nighttime; and that the sheep were continued in transit to a suitable place for unloading, and were delivered before the expiration of said 36 hours to the owner and consignee. The answer alleged, also, the commencement and pendency of the three other actions referred to in the plea in abatement. On the trial it was shown that the plaintiff in error completed the loading of the four separate consignments of sheep referred to in the plea in abatement into its railroad cars at Reno, Nev., on August 30, 1906, at 10:45 a.m, and that the cars containing the same were made up into one train, and as one train the same were conveyed over its road, and that the unloading commenced at South San Francisco on September 1, 1906, at 1:30 a.m., 38 hours and 45 minutes after the loading was completed. The plaintiff in error introduced evidence tending to show that, when the train and cars containing the sheep were started, it was honestly believed and reasonably anticipated that the sheep would not be confined in the cars for a period longer than that permitted by law.

C. W. Durbrow and Knight & Heggerty, for plaintiff in error.

Robt. T. Devlin, U.S. Atty., and Alfred P. Black, Asst. U.S. Atty.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

GILBERT Circuit Judge (after stating the facts as above).

The plaintiff in error contends that Act June 29, 1906, c. 3594, 34 Stat. 607 (U.S. Comp. St. Supp. 1907, p. 918), under which the judgment was rendered in this case, is unconstitutional, for the reason that it delegates legislative power to the owner or custodian of stock shipped or in transit, whereby, although the act itself makes it unlawful and inflicts a penalty for confining animals in the cars for a longer time than 28 hours, the power is delegated to the owner or person in custody of the shipment to extend the time by a written request that they be confined 36 hours, leaving it to the will or caprice of the owner or person in custody of animals to say whether the carrier thereof shall or shall not comply with the provisions of the act. A law must be complete in all its terms when it leaves the Legislature. But, while a Legislature may not delegate the power to legislate, it may delegate the power to determine some fact on which the operation of its own act is made to depend. Although the act in question herein incidentally protects the owners of live stock, its primary and important purpose is to prevent cruelty to animals in transportation. It needs no argument to show how great is the evil which it is intended to remedy. We find no ground for saying that the law as framed by Congress is not complete in itself.

No part of it is made by the shipper, nor is he given the option to say that the carrier shall not comply with its provisions. The statute fixes the period of 28 hours as...