United States v. Northern Pac. Terminal Co.

• Decision Date: 21 December 1909
• Docket Number: 3,544.
• Citation: 181 F. 879
• Parties: UNITED STATES v. NORTHERN PAC. TERMINAL CO.
• Court: U.S. District Court — District of Oregon

181 F. 879

UNITED STATES v. NORTHERN PAC. TERMINAL CO.

No. 3,544.

United States Circuit Court, D. Oregon.

December 21, 1909

John McCourt, U.S. Atty.

Dolph Mallory, Simon & Gearin, for defendant.

WOLVERTON District Judge.

There are three questions raised upon the part of the defendant (1) It is contended that the Terminal Company is not a connecting carrier; (2) that the Terminal Company should not be held liable to pay the penalty, because the Spokane Portland & Seattle Railway Company has heretofore been prosecuted, and paid the penalty; and (3) the question is presented whether or not the switching at the terminal yards should be considered a part of the loading and unloading of this stock.

It has been held by this court with reference to the safety appliance act that the Terminal Company is a connecting carrier, and that it should be held liable where it has violated the terms of that act. United States v. Northern Pacific Terminal Company (D.C.) 144 F. 861. The Attorney General has passed upon the question in an opinion delivered at the solicitation of the Department of Agriculture, in which he says:

'I concur in this interpretation of the law, and upon the facts stated it is my opinion that the law applies to these terminal railroad companies. The statute is unambiguous, and is clearly designed to prevent any 'railroad company within the United States whose railroad forms any part of a line of road over which cattle, sheep, swine, or other animals are conveyed from one state to another,' from transporting such animals under conditions other than those set forth in the statute. It seems to be clear from your statement of the facts that these terminal companies accept stock for transportation to the National Stockyards that has already been confined for more than 28 consecutive hours without unloading for feed, rest, and water. That being so, the companies are undoubtedly liable for the penalty which the statute provides.'

So I think that in this case, although the Terminal Company did carry this stock but a short distance, it ought to be considered, and will be considered, as a connecting carrier with any other railroad company coming into Portland, through and by reason of its aid in taking stock up delivered to it by other companies centering here, to be carried for delivery to another company, or to be delivered to the Union Stockyards. And thus I hold that, as to the first point, this is a connecting carrier. The same thing is held by Judge McPherson in the case of United States v. St. J., etc., Co., 181 F. 625.

The next question: Can the Terminal Company be held liable when it appears that the Spokane, Portland & Seattle Railway Company has been prosecuted, and has paid the penalty, for carrying this stock? One case has been presented here (United States v. Stockyard Terminal Company (C.C.) 172 F. 452) which holds in effect that, when one company has violated the law by carrying the stock for 28 hours, or with consent 36 hours or more, and then has been prosecuted and paid the fine, no other prosecution can be had, unless some other company has taken up the stock and carried it for 28 or 36 hours, as the case may be, subsequent to that time. I am not in accord with that view of the law. It seems to me that this statute is remedial in its intendment. It was adopted for humane purposes, and was designed to prevent the wrongful or cruel treatment of stock. Furthermore, it was adopted for the purpose of preserving cattle in good order for future uses; and the purpose is to prevent the carrying of stock or the abuse of it in that way. It is criminal in its nature. Yet, in order to enforce the law, the act has given a right of civil action, and whoever violates the law, whether one...