United States v. Chicago, B. & Q. R. Co.

• Citation: 293 F. 185
• Decision Date: 22 October 1923
• Docket Number: 6226.
• Parties: UNITED STATES v. CHICAGO, B. & Q.R. CO.
• Court: U.S. Court of Appeals — Eighth Circuit

293 F. 185

UNITED STATES v. CHICAGO, B. & Q.R. CO.

No. 6226.

United States Court of Appeals, Eighth Circuit.

October 22, 1923

Clarence L. Ireland, Asst. U.S. Atty., of Denver, Colo (Granby Hillyer, U.S. Atty., and John A. McCann, Asst. U.S Atty., both of Denver, Colo., on the brief), for the United States.

J. L Rice, of Denver, Colo. (E. E. Whitted and J. Q. Dier, both of Denver, Colo., on the brief), for defendant in error.

Before STONE, Circuit Judge, and VAN VALKENBURGH and KENNEDY, District judges.

VAN VALKENBURGH, District Judge.

The United States brought suit against the Chicago, Burlington &amp Quincy Railroad Company to recover a penalty for failure to comply with the provisions of the Act of Congress approved June 29, 1906 (34 Statutes at Large 607 (Comp. St. Secs. 8651-8654)), commonly known as the Twenty-Eight Hour Law. The allegations of the complaint, so far as they are material to this discussion, are as follows: That on or about October 12, 1921, 29 cattle, more or less, were consigned by M. O. Brown, in the state of Colorado, to M. O. Brown, care Beetham Commission Company, in the state of Colorado, and shipped and transported over the line of the defendant and its connecting carrier, the Denver & Rio Grande Railroad, from Pagosa Springs, Colo., into and through the State of New Mexico to Denver, Colo.; that said animals were confined continuously in said car by the Denver & Rio Grande Railroad and the defendant, during their transportation by said carriers from Alamosa, Colo., to Denver, Colo., for 40 hours, without the said Denver & Rio Grande Railroad and the defendant, or either of them, having unloaded said animals in a humane manner during the course of their transportation into properly equipped pens for rest, water and feeding.

The defendant interposed a demurrer to the complaint, upon the ground that the same did not state facts sufficient to constitute a cause of action. This demurrer was sustained by the trial court. In sustaining the demurrer the court applied the rule that courts take judicial notice of the location, routes, and termini of important lines of railroad, and in the application of that rule found that the defendant had no line which, in connection with the Denver & Ria Grande Railroad or otherwise, formed part of a railroad from Alamosa to Denver; that consequently the defendant took no part in the alleged transportation, notwithstanding the allegations in the complaint to the contrary. As an essential to its ruling it held further that a demurrer to a complaint does not admit the allegations therein which the court judicially knows to be untrue.

Conceding for the purposes of this discussion, that courts may take judicial notice of the location, routes, and termini of important lines of railroad, does the ultimate conclusion reached by the court necessarily follow? We do not think so. The Chicago, Burlington & Quincy R.R. Company is undoubtedly an important line of railroad. Judicial notice of its location...