United States v. Wabash R. Co.
| Decision Date | 25 October 1910 |
| Docket Number | 3,352. |
| Parties | UNITED STATES v. WABASH R. CO. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Syllabus by the Court
It is no defense to a charge that a railroad company or a common carrier in transporting animals has confined them knowingly and willfully more than 28 hours without unloading them, in violation of Act June 29, 1906, c. 3594, 34 Stat. 607 (U.S Comp. St. Supp. 1907, p. 918; Supp. 1909, p. 1178), that another carrier that participated in the transportation of the same shipment was also guilty of a violation of the statute and has forfeited and paid the penalty therefor.
Truman P. Young, Asst. U.S. Atty. (Charles A. Houts, U.S. Atty. on the brief), for the United States.
James L. Minnis (Wells H. Blodgett and N. S. Brown, of counsel) for defendant in error.
Before SANBORN and VAN DEVANTER, Circuit Judges, and REED, District judge.
Complaint is made because the court below overruled a demurrer to an answer which pleaded that the claim of the United States to recover of the Wabash Railroad Company the penalty denounced by the 28-hour law (Act June 29, 1906, c. 3594, 34 Stat. 607 (U.S. Comp. St. Supp. 1907, p. 918; Supp. 1909, p. 1178)) for knowingly and willfully confining cattle during their transportation 21 hours without unloading them for rest, water, and feeding when it knew that they had already been so confined 16 hours by its connecting carriers, was satisfied and barred by the fact that the United States had recovered and received a penalty from the St. Louis Merchants' Bridge Terminal Railway Company for its subsequent receipt from the defendant and confinement of these cattle about two hours while continuing their transportation from the terminus of the defendant's railroad in St. Louis to the national stockyards in Illinois. The case is conditioned by the material fact that the defendant received the cattle within the 28-hour period and confined them beyond that period, while the terminal company received them after that period had expired and confined them about 2 hours, but not beyond a second period of 28 hours. An immaterial fact in the case is that the shipper had requested that the time of confinement be extended to 36 hours. As the defendant received the cattle when they had been confined but 16 hours and kept them confined without unloading them until after the expiration of the 36 hours, this fact will not be further noticed, and the case will be treated as though the limit was 28 hours.
The argument in support of the answer is that the transportation, the offense, and the penalty are each single, that the action to recover the penalty is a civil action, and that but a single penalty can be recovered for a confinement of a single shipment of cattle beyond the 28 hours, and that, as the penalty for this confinement has been collected of the terminal company, the claim of the government for the violation of the law has been fully satisfied, and no cause of action exists against the defendant. The briefs in this case contain much discussion of the question whether this is a civil or a criminal action. The majority of the court are of the opinion that it is a civil action on the authority of and for the reasons stated in the opinions in Chicago, Burlington & Quincy Railway Co. v. United States, 95 C.C.A. 642, 644, 645, 170 F. 556, 558, 559, Hepner v. United States, 213 U.S. 103, 29 Sup.Ct. 474, 53 L.Ed. 720, 27 L.R.A. (N.S.) 739, and United States v. Southern Pacific Co. (D.C.) 162 F. 412, and the cases there cited, while the writer is persuaded that while it is civil in form it is criminal in its nature on the authority of and for the reasons stated in United States v. Shapleigh, 4 C.C.A. 237, 241-245, 54 F. 126, 129-134, United States v. Illinois Central R.R. Co. (D.C.) 156 F. 182, and Atchison, Topeka & Santa Fe Ry. Co. v. United States, 96 C.C.A. 646, 648, 649, 172 F. 194, 196, 197, 27 L.R.A. (N.S.) 756, and the cases there cited.
But is the cause of action for the penalty single so that but one penalty can be recovered for the confinement of a single shipment beyond the 28 hours although several connecting carriers knowingly and willfully participated therein? The act of Congress reads:
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