186 F. 947 | U.S. Circuit Court for the District of Oregon | 1911
Five cases instituted by the government against the Northern Pacific Terminal Company to recover for violation of the 28-hour law (Act June 29, 1906, c. 3594, 34 Stat. 607 [U. S. Comp. St. Supp. 1909, p. 1178]) upon five shipments of beef cattle have been consolidated. The cattle were carried by the Southern Pacific Company in two train- loads from Gazelle, in the state of California, to Portland, Ore., being destined to Tacoma, Wash. The Terminal Company received and carried them to the Union Stockyards, where they were unloaded for rest, food, and water. One train load, containing two shipments, was 34 hours and 45 minutes in transit to Portland. Accompanying these were written requests to extend the time for confining the stock in cars to 36 hours. Another train load, comprising three shipments was 36 hours and 10 minutes in transit. The Terminal Company had the first train load in transit 1 hour and 55 minutes, making a continuous carriage of the cattle without unloading of 36 hours and 40 minutes. It had the second load in transit 50 minutes, making a continuous carriage of 37 hours. The distance from the point where the Terminal Company received, the stock from the Southern Pacific Company to the Union Stockyards is about 1,000 feet. The Terminal Company maintains terminal facilities at Portland for the use of the Northern Pacific Railway Company, the Oregon Railroad & Navigation Company, and the Southern Pacific Company, they owning the capital stock of the Terminal Company and bearing proportionally the expenses of conducting the terminal yards. All interstate shipments by any one of these railroad companies to be carried also over the lines of another áre delivered to such other through the yards of the Terminal Company. The Terminal Company issues no bills of lading or shipping receipts, and receives none to itself, and neither charges nor receives freight, but in all such relations acts solely at the request and direc-. tion of the company so delivering or receiving the shipment. The terminal yards, consist of 38 acres of land in area, over which the Terminal Company maintains tracks and switches, running the distance of about 3,000 feet. The Union Stockyards are adjacent to these tracks. The cattle in question were received by the Terminal Com
Upon these facts, which are in substance as stipulated, the question of the liability of the Terminal Company also to prosecution under the set is presented.
Apparently there is some mistake respecting the prosecution of the Southern Pacific Company for the two shipments by the first train load designated above, as' the company was not legally liable therefor, by reason of the extension of time for confinement of the cattle by request of the shipper. In reality, there had not been 36 hours of continuous carriage when the Terminal Company received the cattle; but, adding the two periods named, the time in which the Southern Pacific Company had the stock in transit and that consumed by the Terminal Company in delivering to the stockyards, 36 hours and 40 minutes elapsed, being 40 minutes in excess of the time limited by law. As it pertains to the second train load, there had been a continuous carriage of more than 36 hours before taken in charge by the Terminal Company.
Four objections are interposed against the prosecution, which will be considered in the order adopted by counsel.
“That said cattle were not unloaded from the time of reloading at Gazelle, California, as set forth in said amended complaint, until they were placed by the Terminal Company in the stockyards at Portland, as stated in said amended complaint.”
This objection is therefore not well taken.
“The time limit as fixed by the act had already expired when the cattle were received by the defendatit. That constituted violation of the act. Recovery has been had for the offense against the act thereby committed, and the time thus accounted for cannot be charged against this defendant.”
The time limit had undoubtedly run as to the three shipments comprising the second train load, but not as to the two shipments by the first, whatever might have been done towards prosecuting the .Southern Pacific Company for its part in the carriage. But, conceding the fact, I am unable to agree with counsel that because the offense had been committed by the Southern Pacific Company, and prior to the time when the stock was received in charge by the Terminal Company, the latter company is not amenable for what it did in continuing the carriage. The act includes all carriers and connecting carriers. If it be that one carrier has held stock in transit for less than the time limit, and delivers to another who continues the transportation, so that the combined time of carriage would exceed such limit, although the latter may not have carried for the full limit, it would undoubtedly be liable, if it had knowledge of the time consumed in carriage by the former. This must be conceded. Otherwise the law would be in many instances a dead letter. In such a case, the first carrier would not be liable, because he would not have been concerned in confining the stock for a longer time than limited by law. But suppose the first carrier has held stock in transit for more than the statutory time, and then delivers to another carrier who continues the transportation for 27 hours longer, with knowledge of what preceded, would not the latter, being a connecting carrier, be concerned in carrying stock for a longer time than the law has prescribed, and would he not be just as guilty as the carrier who took up stock that had not been carried the limit as to time, and carried beyond such limit counting the combined time of carriage? Manifestly there is no escape from the conclusion. Suppose, again, that stock confined in cars has passed in transit through and upon the lines of three connecting carriers. Let the time consumed in passing over the first be 27 hours, that over the second 3 hours, and that over the third 27 hours, all continuous and with full knowledge of what had been previously done; could it be said that the second alone is liable in the carriage of the stock so confined for a period of 57 hours, more than double the time limit? The illustration may be varied so that each would carry 27 hours, totaling 81 hours continuous confinement of the stock, and yet could it be that only one of these carriers would be liable? The purpose of the statute is perfectly manifest. It is to inhibit any railroad company whose road forms any part of a line of road over which stock shall be conveyed from one state or territory into or through another from confining-such stock in cars for a greater length of time than therein specified, without unloading for rest, feed, and water. There is no violation of the law so long as the carriage does not exceed the time fixed, but, whenever the continuous carriage without unloading does exceed the limit, then every railroad company forming any part of an interstate line, over which such stock is being shipped, that participates in such
“Xou state: ‘The view of the officers of the department having the matter in charge has been that any railroad company whose road forms any part of a line over which live stock is conveyed from one state to another which confines said live stock in cars for a period longer than 28 consecutive hours without unloading the same for rest, water, and feeding for a period of at least 5 consecutive hours, unless prevented from so doing by storm or other accidental causes, or unless the live stock is carried in ears in which it can and does have opportunity for feed, rest, and water, is a violator of the law; further, that, following the plain language of the statute, the time during which the animals have been confined without such rest on connecting roads from which they are received shall be included in estimating such confinement.’ I concur in this interpretation of the laxv, 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.” Circular No. 27, U. S. Department of Agriculture, issued December 10, 1909.
To the same purpose is the holding of the United States Court of Appeals for the Eighth Circuit. Union Stockyards Co. v. United States, 169 Fed. 404, 94 C. C. A. 626. See also United States v. Sioux City Stockyards Co. (C. C.) 162 Fed. 556. It has been held by this court that this Terminal Company is a connecting carrier within the purview of the safety appliance act while engaged in moving cars used in interstate traffic. United States v. Northern Pac. Terminal Co. (D. C.) 144 Fed. 861. However, it has been recently held by the Supreme Court that the shipment does not constitute the integer contemplated by the statute as the objective thing to which the offense relates, as has been supposed, but that the time of confinement, regardless of ownership or consignment, determines the offense. For instance, the- loading of numerous cars might proceed concurrently, and
As the Southern Pacific Company has been heretofore prosecuted for its part in the carriage of these cattle beyond the lawful period, the lightest penalty should be imposed here, namely, $100 in each of said two offenses.