Baltimore & Ohio S.W. R. Co. v. United States, 220 U.S. 94 (1911)

Baltimore & Ohio Southwestern

Railroad Company v. United States
Nos. 7

, 8

Argued March 4, 1910
Restored to docket for reargument April 4, 1910
Reargued January 5, 6, 1911
Decided March 20, 1911
220 U.S. 94

ERROR TO THE CIRCUIT COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Syllabus

Every penal statute has relation to time and place, and corporations whose operations are conducted over a large territory by many agents may commit offenses at the same time in different places, or at the same place at different times.

The construction given to an identical former act prior to its reenactment by Congress, that penalties thereunder were not measured by number of cattle or number of cars, followed. United States v. Boston & Albany R. Co., 15 F. 209; United States v. St. Louis R. Co., 107 F. 807.

The Act of June 29, 1906, c. 3594, 34 Stat. 607, to prevent cruelty to animals in transit is general, and applies to all shipments of cattle as made. The statute is not for the benefit of shippers, but is restrictive of their rights, and violations are not to be measured by the number of shippers, but as to the time when the duty is to be performed.

Under the Act of June 29, 1906, to prevent cruelty to animals in transit, offenses are separately punishable for every failure to comply with its provisions by confining animals longer than the prescribed time, and there is a separate offense as to each lot of cattle shipped simultaneously as the period expires as to each lot, regardless of the number of shippers or of trains or cars.

Where cases are properly consolidated below, as these and others were, the aggregate amount of possible penalties in all the actions consolidated is the measure of the amounts in controversy to give jurisdiction to this Court.

159 F. 33 modified and affirmed.

"The act to prevent cruelty to animals while in transit," approved June 29, 1906 (34 Stat. 607, c. 3594), provides:

SEC. 1. That no railroad . . . whose road forms any part of a line of road over which cattle . . . or other animals shall be conveyed . . . [in interstate commerce] . . . 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 . . . unavoidable causes. . . . 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. . . .

SEC. 2. That animals so unloaded shall be properly fed and watered during such rest. . . .

SEC. 3. 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. . . .

SEC.. 4. That the penalty created by the preceding section shall be recovered by civil action in the name of the United States. . . .

Under this act, eleven actions were instituted in the Southern District of Ohio against the Baltimore & Ohio Southwestern Railroad Company.

The complaint in each case gave the name of the station in Illinois from which the animals were shipped to Cincinnati, the marks of the cars in which they were shipped, the hour on February 2, 1907, when they were loaded, and the various periods of confinement, which varied from thirty-seven to forty-five hours. The separate shipments consisted of one, two, three, and four car-load lots, aggregating twenty-one cars, containing several hundred cattle and hogs. Most of the shipments were loaded at different times, but because one (1872) was forwarded under the thirty-six hour rule, the time for its unloading was the same as that of another shipment (1871), made eight hours later under the twenty-eight hour rule, from a different station. At another station, there were three shipments of one car load each of cattle belonging to different owners, loaded at the same time, but two (1869, 1873) of the cars were forwarded under the twenty-eight hour rule, and the other (1874) under the thirty-six hour rule.

The railroad company filed a separate plea in each case, admitting the allegations of the complaint but setting up that

the shipment therein was forwarded to Cincinnati on its train No. 98, on which there were also loaded and forwarded other cattle, referred to in each of the other suits, and in the said several causes the said plaintiff is entitled to recover but one penalty, not to exceed $500, which it is ready and willing to pay, and it pleads the said separate suits in bar to the recovery of more than $500 for all of the same.

The district attorney’s motions for separate judgments on the admission in the several pleas were overruled. The court sustained the company’s motion to consolidate the causes, entered judgment for a single penalty, and ordered

that the within order in case 1866 shall apply to, operate upon, and be conclusive of all the rights of the plaintiff in each of the several causes, to-wit, 1867-1874, 1880 and 1884.

The government sued out a writ of error in case 1866, and, apparently out of abundant caution, another in 1867, later entering into a stipulation in the circuit court of appeals that the result in these two cases should control all the others.

The Circuit Court of Appeals for the Sixth Circuit (159 F. 33) held that the order of consolidation was proper, but reversed the judgment on the ground that the United States were entitled to recover eleven penalties, or one for each of the eleven shipments.