United States v. Atchison, T. & S.F. Ry. Co.

• Decision Date: 04 May 1908
• Citation: 166 F. 160
• Court: U.S. District Court — Northern District of Illinois
• Parties: UNITED STATES v. ATCHISON, T. & S.F. RY. CO. et al.

166 F. 160

UNITED STATES v. ATCHISON, T. & S.F. RY. CO. et al.

United States District Court, N.D. Illinois, Eastern Division.

May 4, 1908

Edwin W. Sims, U.S. Atty., and Ben Davis, Asst. U.S. Atty.

James L. Coleman, for Atchison, T. & S.F. Ry. Co.

Samuel A. Lynde, for Chicago & N.W. Ry. Co.

John A Russell, for Chicago, M. & St. P. Ry. Co.

John G Drennan, for Illinois Cent. R. Co.

Benjamin S. Cable, for Chicago, R.I. & P. Ry. Co.

Chester M. Dawes, for Chicago, B. & Q. Ry. Co.

LANDIS District Judge.

In the matter of the United States versus the Atchison, Topeka &amp Santa Fe Railway Company the Chicago & Northwestern Railway Company, the Illinois Central Railroad Company, the Chicago, Milwaukee & St. Paul Railway Company, the Chicago, Rock Island & Pacific Railway Company, and the Chicago, Burlington & Quincy, being actions to recover penalties under the statute commonly known as the 'Twenty-Eight Hour Law,' and having been submitted to the court mainly on pleas of guilty, but, as in the case of the Northwestern road particularly, to some extent on pleas of not guilty, and a stipulation of facts, supplemented by evidence introduced by the defendant in open court. This statute, which succeeded the old statute on the same subject, and which had been in force for about 30 years without accomplishing anything except its own discredit by reason of its too drastic provisions, was passed in 1906 (Act June 29, 1906, c. 3594, 34 Stat. 607 (U.S. Comp. St. Supp. 1907, p. 918)). It provides that no railroad company, express company, car company, common carrier other than by water, or the receiver, trustee or lessee, etc., shall confine cattle, sheep, swine, or other animals in cars, boats, or vessels of any description for a longer period than 28 consecutive hours, without unloading the same in a humane manner into properly equipped pens for rest, water, and feeding, for a period of at least five consecutive hours, unless prevented by storm or by other accidental or unavoidable causes which cannot be anticipated or avoided by the exercise of due diligence and foresight. Provided that on the written request of the owner or person in custody of that particular shipment, which written request shall be separate and apart from any printed bill of lading or other railroad form, the time of confinement may be extended to 36 hours. In estimating such confinement the time consumed in loading and unloading shall not be considered, but the time which the animals have been confined without such rest or food or water on connecting roads shall be included; it being the intent of this act to prohibit their continuous confinement beyond the period of 28 hours, except upon the contingencies hereinbefore stated, provided that it shall not be required that sheep be unloaded in the nighttime, but where the time expires in the nighttime, in case of sheep, the same may be continued in transit to a suitable place for unloading, subject to the aforesaid limitation of 36 hours. Section 3 is the penal section. Any railroad company, express company, car company, common carrier other than by water, etc., which knowingly and willfully fails to comply with the provisions of the preceding sections, shall for every such failure be liable for and forfeit and pay a penalty of not less than $100 nor more than $500. This is followed by a section specifying the district where the suit may be brought and by a repeal of the former act. It appears from the testimony, and from the facts presented by the several stipulations, that the various stock carrying railway companies centering here have adopted the practice of requesting the shipper at the time he turns over his stock for transportation to execute a written request that the railway company shall not unload his stock, provided the 28-hour period expires while they are in transit, and authorizing the carrier to continue the confinement to 36 hours.

This has practically become the policy of the several carriers, and has resulted in the practical abrogation of the 28-hour law and the substitution in its place of a 36-hour law. I am not prepared to say that Congress did not contemplate that the carriers should do this thing. That Congress did so intend may be fairly inferred from the language of the statute, and that Congress did not so intend may also be as fairly and as rationally inferred. My own notion is that Congress intended to pass a 28-hour law.

For the Chicago & Northwestern Railway Company it has been urged that there should be a finding in favor of that company, for the reason, as claimed, that the evidence does not show the defendant's failure to comply with the law to have been willful. That is to say, the failure is not shown to have been dictated by a vicious intent to do an evil thing. In support of this contention two court decisions are cited namely, Felton v. United States, 96 U.S. 699, 24 L.Ed. 875, and United States v. Louisville & Nashville Railroad Company (D.C.) 156 Fed., cited in counsel's brief, at page 863, but found at page 195 or 182 or 193 of the volume referred to. In counsel's brief, referring to this case, the statement is made that in another district the court held that in a prosecution of this kind this kind of willfulness must be shown by the evidence before a conviction can be had, and that the court had under consideration what the counsel in his brief refers to as the 36-hour law. I cannot find any case in which the court referred to laid down that rule in considering this statute. I do find in the decisions under the safety appliance act where the court gets close to this question with a line of reasoning to...