United States v. Baltimore & O.S.W.R. Co.

Citation159 F. 33
Decision Date19 February 1908
Docket Number1,770,1,771.
PartiesUNITED STATES v. BALTIMORE & O.S.W.R. CO. (two cases).
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

On Rehearing, March 26, 1908.

S. T McPherson, for the United States.

Edward Colston, for defendant in error.

Before SEVERENS and RICHARDS, Circuit Judges, and KNAPPEN, District judge.

SEVERENS Circuit Judge.

The two causes above entitled were heard together in this court being alike in all essential particulars.

They were 2 of 12 similar causes in which suits were brought by the United States to recover penalties for several violations by the defendant railroad company of an act of Congress entitled 'An act to prevent cruelty to animals while in transit by railroad or other means of transportation' from one state to another, etc., passed June 29, 1906, c 3594, 34 Stat. 607 (U.S. Comp. St. Supp. 1907, p. 918). The suits were all brought in the District Court of the United States for the Southern District of Ohio, and each related to distinct shipments of cattle and swine made by different parties from stations of the railroad company in other states to various consignees at Cincinnati, Ohio. The petition in each case alleged a shipment over the defendant's road, from a station in another state than Ohio, by a party named, of the live stock therein described, to a certain consignee at Cincinnati; and then alleged that the time occupied in the transportation was more than 40 hours-- in the first of the cases above entitled, 43 hours and 45 minutes, and in the second, 45 hours and 25 minutes-- and further alleged that this transportation was made without unloading the said live stock for rest, water, and feeding, or either; 'and that said defendant knowingly and willfully failed to unload the said live stock in a humane manner, into properly equipped pens for rest, water, and feeding, for a period of at least five consecutive hours; and, further, that the said live stock, above described, were carried in a car in which they could not and did not have proper food, water, space, and opportunity to rest.'

The defendant by its answer admitted all the material allegations of the petition, but averred that the shipment mentioned in the petition 'was forwarded to Cincinnati on a certain train of the defendant, known and designated as train No. 98; that on said train there were also loaded and forwarded certain other shipments of live stock, to wit,' describing 11 other such shipments by various other consignors to consignees at Cincinnati, Ohio, from stations in other states; and that in respect of each of those cases the railroad company had been in like default; and that 11 other suits brought by the United States, each for a penalty based on the same default, were then pending in that court. Upon these facts the defendant claimed that but one offense had been committed, and but one penalty incurred. On filing this answer the defendant moved that the several causes be consolidated, 'in order that there may be a recovery of but one penalty for all the shipments. ' The court being of opinion that the statute dealt with the operation of trains by railroad companies, and not with the different shipments which the trains may carry, the motion was allowed. The district attorney moved for a judgment for a penalty, separately, in each case 'for the reason that each of said causes should be treated as a different cause of action, and a separate penalty assessed in each. ' This motion was overruled; and the plaintiff excepted to this ruling. The court thereupon entered the following judgment:

'The court, being fully advised in the premises, finds that the defendant herein admits its liability in this cause, and therefore doth hereby order and adjudge that said defendant pay to the plaintiff herein the sum of one hundred dollars and its costs herein expended, and in default of payment execution shall issue, and the court does order, adjudge and decree that the within foregoing order in cause number 1866, shall apply to, operate upon, and be conclusive of the right of the plaintiff to recover of the defendant in each of the following causes, to-wit: 1867, 1868, 1869, 1870, 1871, 1872, 1873, 1874, 1880, and 1884.'

The causes were properly consolidated. Section 921 of the Revised Statutes (U.S. Comp. St. 1901, p. 685) provides that 'when causes of a like nature or relative to the same question are pending before a court of the United States,' this may be done. Whether one judgment may be given for all or a separate judgment in each case will depend upon the special circumstances. If it is necessary to the due administration of the law and the protection of the rights of the parties that the integrity of the several causes shall be so far preserved as to secure the proper result in each case, to the end that the party aggrieved may not be embarrassed thereby in seeking relief against the judgment or for any other sufficient reason, the court will direct the proceedings accordingly. The statute is one for convenience in saving expense to the parties and the time of the court.

The validity of the act of June 29, 1906, is not disputed; nor is the commission of the offense, or offenses, charged in the several petitions. The question presented on these writs of error relates to the penalty, and that depends upon the construction of the first section of the act which reads as follows:

'Be it enacted, etc., That no railroad, express company, car company, common carrier other than by water, or the receiver, trustee, or lessee of any of them, whose road forms any part of a line of road over which cattle, sheep, swine, or other animals shall be conveyed from one state or territory or the District of Columbia into or through another state or territory or the District of Columbia, or the owners or masters of steam, sailing or other vessels carrying or transporting cattle, sheep, swine, or other animals from one state or territory or the District of Columbia into or through another state or territory or the District of Columbia, shall confine the same in cars, boats, or vessels of any description for a period longer than twenty-eight 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 can not be anticipated or avoided by the exercise of due diligence and foresight: Provided, that upon 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 thirty-six hours. In estimating such confinement, the time consumed in loading and unloading shall not be considered, but the time during 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 twenty-eight hours, except upon the contingencies hereinbefore stated: Provided, that it shall not be required that sheep be unloaded in the night time, but where the time expires in the night time in case of sheep the same may continue in transit to a suitable place for unloading, subject to the aforesaid limitation of thirty-six hours.'

The contention for the plaintiff is that this statute deals with separate shipments or consignments of live stock, and that it does not matter that more than one shipment is taken by a train; and therefore that several offenses may be committed in the transportation of a single train load. The defendant insists that the train load of live stock is the integer which the statute contemplates as the objective thing to which the forbidden act relates and that therefore the offense is single, though there may be several shipments of stock in a train which may be affected by the same neglect. It may be admitted that the statute is not so clear upon this subject as would be desirable. The language is quite general, and there is but one salient expression upon which we can lay hold with confidence. This is contained in the provision that the 28-hour limitation may be extended to 36 hours 'upon 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,' etc. It seems to us that this gives the key by which the meaning of the act in this respect may be interpreted. It is the owner of the shipment or his representative having the custody of the shipment who is to be referred to as authority for prolonging the transportation without unloading; and it is manifestly implied that there is a bill of lading or other contract which governs the transportation of that shipment. No other person than the one concerned with that shipment is given the power to prolong the transportation without unloading. And one shipper could not exercise his right if he was one of several; or if he could, it would disable other shippers from exercising the right to have their stock unloaded for rest and feeding and then go on. It is urged that it would be very inconvenient for the railroad company to dismember its trains by dropping out one or more cars at different stations and leaving them to be picked up by other trains which may or may not find it convenient to take them in. But the duty imposed by the statute, however construed, is highly inconvenient, and it is a difference in degree merely. Besides, we have little doubt that the company, having in mind the duty...

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