United States v. Lehigh Val. R. Co.

• Citation: 204 F. 705
• Decision Date: 05 May 1913
• Docket Number: 1,712.
• Parties: UNITED STATES v. LEHIGH VALLEY R. CO.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

204 F. 705

UNITED STATES v. LEHIGH VALLEY R. CO.

No. 1,712.

United States Court of Appeals, Third Circuit.

May 5, 1913

The following is the opinion of Cross, District Judge:

This action is based upon what is popularly known as the Twenty-Eight Hour Law (Act June 29, 1906, c. 3594, 34 Stat 607 (U.S. Comp. St. Supp. 1911, p. 1341)), an act intended to prevent cruelty to animals while being transported in interstate commerce. The question reserved at the trial was whether the time the animals were confined to the pens of the defendant at Jersey City should be included in the 28-hour period during which the stock was not fed. The questions of fact as to whether the animals were fed, and whether the defendant knowingly and willfully failed to comply with the provisions of the statute, were submitted to the jury, which found a verdict thereon in favor of the United States. The pertinent portions of the statute are as follows:

Section 1: 'No railroad * * * carrying or transporting cattle sheep, swine, or other animals * * * 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,' etc.

Section 2 provides that 'animals so unloaded shall be properly fed and watered during such rest, either by the owner * * * or by the railroad * * * at the expense of the owner.' Section 3 provides that 'any railroad * * * who knowingly and willfully fails to comply with the provisions of the two preceding sections shall for every such failure be liable for and forfeit and pay a penalty of not less than one hundred nor more than five hundred dollars.'

The facts so far as we are at present concerned with them, are as follows: The animals, after having been unloaded, fed, and watered at Coxton, Pa., were reloaded by the defendant into its cars at that place at 6:15 p.m., February 18, 1911. At 3:15 p.m., February 19th, they were unloaded into the stock pens of the defendant company at Jersey City, but were not fed. They remained there in the stock pens of the company until February 20th, at which date, at 3:15 a.m., they were loaded on a barge of the defendant and conveyed to their destination, where they were delivered at 8 a.m., of that day. It thus appears that the animals were in charge of the plaintiffs in interstate transportation for a period of 37 hours and 45 minutes, without being fed. During 12 hours of that period, however, the animals were confined in the stock pens of the defendant at Jersey City, and not in its cars boats, or vessels of any description.

The penalty of section 3 can, as expressly provided, be applied only when the carrier has failed to comply with the provisions of both sections 1 and 2; that is, the carrier must have confined the animals in cars, boats, or vessels for a period longer than 28 consecutive hours without unloading the same into pens for rest, water, and feeding, and it must also have failed to properly feed and water the animals so unloaded during such period of rest. The animals in question were not, however, confined in the cars, boats, or vessels of any description, of the defendant, for a longer period than 21 consecutive hours, or for a longer period in all than 25 hours and 45 minutes during their transportation from Coxton, Pa., to their destination. Consequently there was no infraction of the statute.

The statute under which this action is brought is penal, and must be strictly construed. At all events, it cannot be so construed as to create offenses and inflict penalties not in terms expressed, or necessarily implied from what has been expressed. It seems too plain for argument that no offense is created by this statute which does not contain as one of its elements the confinement of the animals being transported in the cars, boats, or vessels of the carrier, for a period longer than 28 consecutive hours, without unloading, etc. In order to make out a violation of the statute in this case, at least 7 hours of the period during which the animals were unloaded and resting in stock pens must be tacked to the 21-hour period of confinement in the cars of the defendant. Moreover, if we take the total period of confinement in the cars, boats, and vessels of the company, it only amounts to 25 hours and 45 minutes, made up of 21 hours' confinement in its cars and 4 hours and 45 minutes on its barge, which hours of confinement, furthermore, were not consecutive, as provided by the act.

The act neither in terms nor by necessary intendment embraces the case in question. Indeed, its language prohibits the construction which the government seeks to put upon it. If Congress had intended to cover a situation like that here presented, it could easily have done so by prohibiting the confinement in any manner of animals being transported in interstate commerce for a period longer than 28 hours without feeding, watering, and resting them, etc. Confessedly my inclination has been to so construe the act, if possible, as to make it cover the case in question; but it cannot be done, in my judgment, without an exercise of the legislative, rather than the judicial, function.

Accordingly judgment will be entered for the defendant non obstante veredicto.

John B. Vreeland, of Morristown, N.J., for the United States.

Collins & Corbin, of Jersey City, N.J. (George S. Hobart, of Jersey City, N.J., of counsel), for defendant in error.

Before GRAY, BUFFINGTON, and McPHERSON, Circuit Judges.

J. B. McPHERSON, Circuit Judge.

This action against the Lehigh Valley Railroad Company was brought to recover a penalty for 'knowingly and willfully' failing to comply with the Twenty-Eight Hour Law of June 29, 1906. We take the following summary of certain undisputed facts from the government's brief:

'On February 17, 1911, 226 lambs were shipped by C. F. and W. F. Pratt over the defendant's railroad, from Batavia, N.Y., consigned to Newton & Co., Jersey City, contained in a car initialed and numbered 'L.V. 89625,' and conveyed over said line of railroad in that car to Jersey City, and thence by a boat known as 'L.V. Barge 503,' owned and

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