164 F. 400 | 9th Cir. | 1908
(after stating the facts as above). From the foregoing statement it will he seen that the answer itself expressly alleges that the horses in question were confined on the company’s cars for a longer period than 28 hours without being unloaded for rest, water, or feeding, and that its failure to so unload them was not caused by storm, or other'accidental or unavoidable causes, which could not have been anticipated or avoided by the exercise of due diligence and foresight on the part of the company’s employés, and that the horses were not carried in cars in which they had, or could conveniently have had, feed, water, or opportunity to rest. The answer further expressly alleges that the cause of this violation of the provisions of the statute was that:
“By and through the oversight, forgetfulness, and unintentional neglect of said dispatchers, and not otherwise, no notice was given to the defendant’s, agent at said station of Clancy that a train containing live stock was being transported over defendant’s line, and would arrive at said station, and no authority or direction was given by said dispatchers for the unloading of said stock at said station.”
The sole defense is that the statute imposes the penalty only on the carrier “who knowingly and willfully” fails to comply with its provisions; and it is earnestly contended for the plaintiff in error that the company here did not “knowingly and willfully” confine the horses for the time and under the circumstances stated. Its counsel insists that the case if not a criminal one, is at least of a criminal nature, and that to it should be applied the same strict rules of construction and of evidence which are applied in criminal prosecutions. In that position he is supported by the cases of the United States v. Louisville & N. R. R. Co. (D. C.) 157 Fed. 979, and United States v. Illinois Central Railroad Company (D. C.) 156 Fed. 182. But we are unable to take that view of the matter. We do not understand the statute to make a violation of its provisions a crime. It is true that a penalty is imposed for its violation, but the penalty is a pecuniary one only, which Congress expressly provided shall be recovered by civil action in the name of the United States, having, as we think, the ordinary-incidents of a civil action. This view is in accord with that taken of the same and of a similar statute in the cases of United States v. Southern Pacific Railroad Company (D. C.) 157 Fed. 459, United States v. Central of Georgia Railway Company (D. C.) 157 Fed. 895, United States v. Philadelphia & Reading Railway Company (D. C.) 160 Fed. 690, and United States v. Baltimore & O. S. W. Railroad Company (C. C. A.) 159 Fed. 33.
The company, being a corporation, could, of course, only act through agents, and its answer expressly alleges that the horses in question were confined on its cars in violation of the statute by reason of the “oversight, forgetfulness, and unintentional neglect” of its train dispatchers. As was held by the court below, we think the facts expressly
The judgment is .affirmed.