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railway company.-^

§ 3997. As to Connecting- Carriers. ^ — See elsewhere.-''

§ 3998. Just and Reasonable Rates. — See elsewhere. s"

§ 3999. Printing and Publishing Schedules of Rates. — See elsewhere.^'^

§ 4000. Reports to Commission. — See elsewhere. s-

§§1 4001-4014. Unloading, Feeding and Watering Stock— § 4001.
Statutory Provision. — The Act of June 29, 1906, commonly known as the
"twenty-eight hour law," prohibits interstate carriers of live stock from con-
fining the same in cars or vessels for more than twenty-eight consecutive hours
without unloading them for feed, water, and rest, and imposes a penalty for its
violation. 2^ The statute is criminal and the rule of strict construction is appli-



27. Switches.— Act of June 29, 1906, c.
3591, § 1, 34 Stat. 584 (U. S. Comp. Stat.
Supp. 1909, p. 1149).

28. Interstate Commerce Comni. v.
Delaware, etc.. R. Co., 216 U. S. 531, 54
L. Ed. 605, 30 S. Ct. 415, affirming 166
Fed. 498.

29. As to connecting carriers. — See
post, "Facilities," §§ 4051-4052.

30. Just and reasonable rates. — See
post, "Just and Reasonable," § 4059.

31. Printing and publishing schedules
of rates. — See post. "Printing and Pub-
lishing Schedules," §§ 4125-4145.

32. Reports to commission. — See post,
^'Particular Powers," § 4154.

33. Unloading, feeding and watering
stock.— Rev. St. U. S., § 4386, providing
that no interstate railroad shall confine
cattle in cars for a longer period than
twenty-eight hours without unloading the
same for rest, water, and feeding, unless
prevented from so doing by storm or
other accidental cause, was not intended
to fix a period during which the com-
pany could, without incurring liability,
hold cattle without unloading for such
purposes. Missouri Pac. R. Co. 7'. Ivy,
79 Tex. 444, 15 S. W. 692.

A statute requiring a carrier to feed
and water, "sufficiently," live stock in
transit, is not too indefinite to carry a
penalty. Gulf, etc.. R. Co. v. Gray (Tex.
Civ. App.), 24 S. W. 837.

Shipment of sheep. — Under the twenty-
eight-hour law (Act June 29, 1906, c. 3594,
§ 1. 34 Stat. 607 [U. S. Comp. St. Supp.
1909, p. 1178]), prohibiting the confine-
ment of live stock in interstate shipment
for more than twenty-eight consecutive
hours without unloading for rest, water.



and feeding, subject to the extension of
such time to thirty-six hours on written
request of the shipper, "provided that it
shall not be required that sheep be un-
loaded in the nighttime, but where the
time expires in the nighttime in case of
sheep the same may continue in transit
to a suitable place for unloading, sub-
ject to the aforesaid limitation of thirty-
six hours," the proviso does not author-
ize the confinement of sheep for more
than thirty-six consecutive hours in any
case, but applies only where there has
been no extension at request of the ship-
per and the twenty-eight hour period ex-
pires in the nighttime. United States v.
Atchison, etc., R. Co., 185 Fed. 105.

Shipment of horses and mules. — Rev.
St. U. S., § 4386, requiring railroads over
which "cattle, sheep, swine, or other ani-
mals" are shipped to unload them for
rest, water, and feeding once every twen-
ty-eight hours, applies to a shipment of
horses and mules. Chesapeake, etc., R.
Co. V. American Exch. Bank, 92 Va. 495,
23 S. E. 935, 44 L. R. A. 449.

"Contingencies hereinbefore stated." —
Act Cong. June 39, 1906, c. 3594, 34 Stat.
607 (U. S. Comp. St. Supp. 1907, p. 918).
forbids railroads from confining cattle
longer than twenty-eight hours without
unloading, unless prevented by storm or
other accidental or other unavoidable un-
anticipated causes, provided that on the
written request of the owner the time
may be extended to thirty-six hours ;_ it
being the intent of the act to prohibit
continuous confinement for more than
twenty-eight hours except "upon the con-
tingencies hereinliefore stated." Held,
that "the contingencies hereinbefore



3619



interstate; COMMERCIi ACT.



4001-4002



cable thereto.^"*

Compliance with Statute. — A railroad company which delivers the cars con-
taining such stock to a connecting carrier or to the consignee within the prescribed
time is reheved from further responsil)ihty.'''"'

The time consumed in loading and unloading stock is not to be considered
as a part of their confinement in the cars permitted by the law.^*^

Carrier Not Insurer. — The carrier is not made an absolute insurer of the
safety of sheep in transit, but its duty is fully performed by providing pens prop-
erly e([uipped, unless it has notice, or by reasonable diligence could have discov-
ered, that the surrounchng conditions were such that injury to the sheep, while in
the pens, from dogs or wild animals, might be expected, in which case it would
be bound to make reasonable provision for their safety.''''

§ 4002. Carriers Liable for Penalty. — Receiver. — Railroad receivers
are not liable to an action for penalties for failure to comply with the regulations
as to transportation of live stock by "any company, owner, or custodian of such
animals," since receivers are plainly not within the letter of the statute, and not
necessarily within its purpose or spirit ; and therefore, as the statute is penal, it
can not be construed to extend to them.^'*

Carrier of Intrastate Shipment. — The statute does not apply to a railroad
carrying live stock from a point within a state to another point therein, but only
to such as convey stock from one state to another. -^'^

Connecting Carriers. — The duty of a connecting carrier of live stock is not
discharged until it has been imposed upon the carrier next in order.^*^

Terminal Company. — A terminal railroad company, though controlled by
associated railroads for which it operated terminal yards, was nevertheless a dis-
tinct corporation and separate entity from any of such associated railroads. The
terminal company operated under a contract providing that its employees should
be regarded as the servants of the associated railroad companies during the time
they were working for them. One of such companies, after having retained
certain cattle transported in interstate commerce in the cars for a time longer than
that authorized by the twenty-eight hour law turned over the cattle to the terminal



.stated" included both the case where the
carrier was prevented from unloading by
storm or other accidental or unavoidable
causes and the contingency of the owner
having filed a written request extending
the time of confinement to thirty-six
hours. United States v. Pere Marquette
R. Co., 171 Fed. 586.

34. United States v. New York, etc.,
R. Co., 156 Fed. 249; United States v.
Louisville, etc., R. Co., 157 Fed. 979.

But it has been held that the statute
is not a criminal statute, nor subject to
the strict rules of construction or of evi-
dence applied in criminal prosecutions.
Montana Cent. R. Co. v. United States,
164 Fed. 400.

The twenty-eight hour law (Act June
29, 1906, c. ?,594, § 3, 34 Stat. 608 [U. S.
Comp. St. Supp. 1907, p. 919]) declares
that any railroad or common carrier other
tlian l)y water, which "knowingly and
willfully" fails to comply with the pro-
visiuns (if the act, for every such failure
sliall l)e liable for and forfeit and pay a
penalty of not less than $100 or more
than $500. Held, that the statute is not
criminal in the sense that a violation
llicrc-of constitutes a crime, and hence the

4 Car— 33



words "knowingly and willfully" should
not be construed to require the confine-
ment of transported animals beyond the
prescribed period with a malevolent pur-
pose on the part of the carrier to cruelly
torture them, but only to require that
the animals be knowingly and intention-
ally confined beyond the prescribed pe-
riod. United States v. Sioux City Stock
Yards Co., 163 Fed. 556, judgment af-
firmed in 167 Fed. 126.

35. Compliance with statute. — United
States z'. Southern Pac. Co., 157 Fed.
459.

36. United States v. Nortliern Pac. Ter-
minal Co., 186 Fed. 947.

37. Carrier not insurer .^Beckman v.
Southern Pac. Co., 118 I'ac. 118, 39 Utah
472.

38. Carriers liable for penalty. — United
States V. Harris, 177 U. S. 305, 44 L. Kd.
780, 20 S. Ct. 609, affirming 78 Fed. 290,
and 29 C. C. A. 327, 85 Vc(\. 533.

39. Carrier of intrastate shipment. —
United States v. East Tennessee, etc., R.
Co., 13 Fed. 642.

40. Connecting carriers. — United States
V. Union I'ac. R. Co., 213 Fed. 332.



§ 4002 CARRIERS. 3620

company, which continued the transportation to the stockyards where the cattle
were unloaded. The fact that the original company was convicted and fined be-
cause of such transportation did not relieve the terminal company from its viola-
tion of the act on the theory that it was acting merely as an agent of the initial



carrier.^ ^

Where Stock Had Been Previously Confined. — Where the defendant, a
terminal railroad company, received cattle from a connecting carrier for the sole
purpose of transporting them to certain stockyards to feed, water, and. rest them,
and then to return them to the carrier from which they have been received, not
knowing that such carrier had already confined them in the cars exceeding the
time allowed by Act of June 29, 1906, providing that cattle shall not be confined
for a longer period than thirty-six hours, the terminal carrier, having used due
diligence in carrying the cattle to the stockyards and unloading them, was not
guilty of itself "knowingly and willfully" violating such act; such words being
intended to mean either an intentional violation of the statute or an indifferent
disregard of its requirements.'^^ Where a terminal company's railroad formed
a part of a continuous line of interstate transportation over which live stock was
transported, and the animals had been confined in the cars without being unloaded
for food, water, and rest for a period longer than that prescribed by the act be-
fore being delivered to the terminal company for transportation to the stockyard
for unloading, the terminal company could not relieve itself from liability for
continuing such transportation on the ground that it found the cattle so confined
at a place where they could not be unloaded except by being taken to the stock-
yards, nor except in exceptional cases, because its violation of the law would
subserve a humane purpose ; the terminal company being under no obligation to
accept the cattle from its connecting carrier under such circumstances.^^ But a
stock yards company without actual knowledge that cattle had been confined
nearly twenty-eight hours, and without making any eft'ort to find out whether they
had been or not, which receives from a common carrier, and hauls a few miles
to its stockyards, and there unloads, cattle for rest, food, and water, when the
stockyards are nearer to the place *of the receipt of the cattle than any other
place where they could be unloaded, fed, and watered, is not guilty of knowingly
and willfully confining the cattle, in violation of the act.'*** A terminal railroad

41. Terminal company. — United States of road over which animals shall be con-

V. Northern Pac. Terminal Co., 186 Fed. veyed from one state to another, from

947; New York, etc., R. Co. v. United confining the same for a longer period

States, 203 Fed. 953, following United than twenty-eight consecutive hours with-

States V. Lehigh Valley R. Co., 184 Fed. out unloading, etc. United States v.

971, affirmed in 187 Fed. 1006, 109 C. C. Sioux City Stock Yards Co., 162 Fed.

A. 211. 556, judgment afifirmed in 167 Fed. 126.

Where defendant stockyards company, 42. Where stock had been previously

as authorized by its articles of incorpora- confined.— Act June 29, 1906, c. 3594, § 1,

tion,. constructed and mamtamed radroad 34 Stat. 607 (U. S. Comp. St. Supp. 1909,

tracks on acquired real estate and owned p. 1178); United States v. Stock Yards

or leased and opeYated engines and cars Terminal R. Co., 101 C. C. A. 147, 178

for hire, by which it transported live Pgd. 19, affirming judgment, 172 Fed. 452.

stock brought to the Sioux City market ^^^^^ ^ terminal carrier received

by other mterstate railroad companies be- ^^^^^^ ^j^j^ knowledge that its connect-

tween their terminals and the stockyards, . ^^^^.^^ ^^^ ^j^^^^ confined them for

and also hauled such of the products or ^ ° ^,; 1 i^„„^.. (-!,.,„ t-u^^ ^^^.^Ui-^A u-,r

£ ■ 1 ^ c ., 1- 1 r a period longer than that permitted by

freight of the packing houses from one . ^^, „• u* 1-^.. 1^ rs 1 o ;*- -,0 t-u^

.^ . , ^ ■'^ , , 1 J J twenty-eight hour law, §§ 1, 3, it was the

to the other, as required, and cars loaded , , ■' r ^,,^1 <.^^„ ■„ '1 ^^^' • ' (.^ 4.^^„c

.^, r , ' . ^ ^ , ', r .t duty ot such terminal carrier to trans-

with fuel or ice to such houses irom the 1 ^u i. j i- ..• ■ 1 1 „^

.-re . -1 J i • iU -4. -4. port them to destination as quickly as

different railroads entering the city, it ^ -^^^^ New York, etc., R. Co. v.

was a radroad conipany or common car- ^^.^^^ ^ ^^3 p^^_ ^^^

rier other than by water within the

twenty-eight hour law (Act June 29, 1906, 43. United States v. Northern Pac.

c. 3594, 34 Stat. 607 [U. S. Comp. St. Terminal Co., 186 Fed. 947.
Supp. 1907, p. 918]), prohibiting any rail- 44. St. Joseph Stock Yards Co. v.

road or common carrier other than by United States, 110 C. C. A. 432, 187 Fed.

water, whose road forms a part of a line 104, reversing judgment, 181 Fed. 625.



3621



INTERSTATE COMMERCE ACT.



§§ 4002-4003



company, received a carload of horses from a connecting railroad company, which
had transported them in interstate commerce. Such carrier had kept them con-
hned in the car for more than twenty-eight hours without unloading- for rest,
water, and feeding, and was indicted and fined therefor. The terminal company
received them for transportation over its line for some one thousand feet to
stockyards, and moved them to such yards with all speed possible, and there un-
loaded them for rest, water, and feed. The terminal company was not charge-
able with violation of the statute, but, on the contrary, its action aided in giving
effect to its object and purpose. ■*•''

§ 4003. Knowingly and Willfully. — The words "knowingly and willfully"
described an essential element of the oft"ense on account of which penalties are
prescribed, without proof of which they can not be recovered;'**' "knowingly"
meaning with knowledge of the facts which, taken together, constitute a failure
to comply with the statute, and "willfully" meaning purposely or obstinately, de-
scribing the attitude of a carrier, who, having a free will or choice, either inten-
tionally disregards the statute, or is indift'erent to its requirements. -^"^ The words



45. Northern Pac. Terminal Co. v.
United States, 106 C. C. A. 583, 184 Fed.
603.

46. Knowingly and willfully. — St. Louis,
etc., R. Co. V. United States, 94 C. C. A.
437, 169 Fed. 69.

Act Cong. June 29, 1906, c. 3594, 34
Stat. 607 (U. S. Comp. St. Supp. 1907,
p. 918), prohibits the confinement of live
stock in transit for more than twenty-
eight consecutive hours, and § 3 provides
that any common carrier who "knowingly
and willfully" fails to comply with the
law shall be subject to a penalty. Held,
that a complaint under such act, failing
to charge that defendant carrier "know-
ingly and willfully" restrained stock in its
possession, which had been confined for
a period longer than twenty-eight hours,
was fatally defective. United States v.
Oregon, etc., R. Co., 160 Fed. 526.

The words "knowingly and willfully,"
as used in the twenty-eight hour law,
mean with a knowledge of the facts
which, taken together, constitute failure
to comply with the statute, and "pur-
posely" or "obstinately" describe the at-
titude of the carrier, who, having a free
will or choice, either intentionally disre-
gards the statute or is plainly indifferent
to its requirements. Oregon-Washington
R., etc., Co. V. United States, 205 Fed.
337, 123 C. C. A. 471.

"Willfully," as used in twenty-eight
hour law, § 1, providing for a penalty or
forfeiture by a carrier who knowingly
and willfully fails to comply with the pro-
visions of the act. means purposely or
obstinately and describes the attitude of
a carrier who, having free will or choice,
either intentionally disregards the statute
or is plainly indifferent to it. St. Louis,
etc., R. Co. V. United States, 209 Fed.
600.

But it has been held that it is not es-
sential to a recovery for violation of the
twenty-eight hour law to show that de-
fendant knew that the animals did not



have proper food, water, or space to rest
in the cars. Chicago, etc., R. Co. v.
United States, 195 Fed. 241.

Allegation of negligence only. — In an
action by the government against an in-
terstate carrier for violation of the twen-
ty-eight hour law, mere proof warrant-
ing a conclusion that the carrier's em-
ployees negligently, as distinguished from
"willfully" and "intentionally," omitted to
feed and water certain sheep, in trans-
portation, during the rest period, was in-
sufficient to subject the carrier to a pen-
alty. LTnited States v. Lehigh Valley R.
Co., 204 Fed. 705, 123 C. C. A. 9.

47. United States v. St. Joseph Stock
Yards Co., 181 Fed. 625.

The word "knowingly," means with a
knowledge of the facts which taken to-
gether constitute a failure to comply with
the statute, as is the case where a car-
rier receives from another a car loaded
with cattle, and, with knowledge how
long they have been confined without
rest, water, or food, prolongs the con-
finement until the statutory limit is ex-
ceeded. St. Louis, etc., R. Co. v. United
States, 94 C. C. A. 437. 169 Fed. 69.

The word "willfully" is not used as im-
plying a vicious or evil intent, but as
meaning intentionally or voluntarily.
United States v. Atchison, etc., R. Co.,
166 Fed. 160; United States v. Union Pac.
R. Co., 94 C. C. A. 433, 169 Fed. 65.

"Willfully," means purposely or obsti-
nately, and describes the attitude of a
carrier who having the free choice either
intentionally disregards the statute, or is
indifferent to its requirements. St. Louis,
etc., R. Co. V. United States, 169 Fed. 69,
94 C. C. A. 437.

"Willfully" means "purposely or ob-
stinately, and is designed to describe the
attitude of a carrier who, having a free
will or choice, either intentionally disre-
gards the statute or is plainly indifferent
to its requirements." Chicago, etc., R. Co.
V. United States, 194 Fed. 342.



§§ 4003-4005 CARRIERS. 3622

"knowingly and willfully" require only that defendant should have failed to obey
the statute purposely and with knowledge of the facts."**

Knowledge of Servants. — A railroad company is subject to the penalty im-
posed by the Act for knowingly and willfully failing to comply with its provi-
sions as to the unloading of live stock for rest, water, and feeding, where its
servants or employees in charge of its train knowingly keep such stock confined in
cars for more than twenty-eight consecutive hours without any lawful excuse, as
prescribed by the act.-""'

§ 4004. Separate Offenses. — Under the penal clause of such law, each
shipment of stock confined beyond the period prescribed in violation of its pro-
visions constitutes a separate offense.^'- Where several shipments of live stock,
belonging to dift'erent owners, are contained in the same train, and the carrier
fails to unload, as provided in such act, a penalty is recoverable for each ship-
ment, the shipment, and not the train load, being the integer contemplated as
the objective thing to which the ofi^ense relates.'''^ Where a railroad train car-
ried a number of difi^erent consignments of live stock, and the company failed
to unload any of them for rest, water, and feeding, as required, it became sub-
ject to a penalty thereunder for each consignment.-^- The act provides that no
railroad or common carrier other than by water, whose road forms any part of a
line over which cattle shall be conveyed from one state or territory into or
through another state or territory, shall confine the same longer than twenty-
eight consecutive hours, except that on the written request of the owner the
time of confinement may be extended to thirty-six hours, and that any carrier
knowingly and willfully violating such provisions for every such failure shall
be liable to a penalty. But a single penalty is incurred for confining live stock
beyond the period of twenty-eight or thirty-six hours, so that the time of con-
finement beyond that period is not material, unless it be for another period of
twenty-eight or thirty-six hours.""^ Where cars of cattle are loaded at nearly
the same time, although at difl^erent points, are forwarded to the same destina-
tion, the consignor and consignee are the same, and they are consolidated into
one train and so received by a connecting carrier, the failure of such carrier to un-
load the same for rest, water, and feeding as required by the act constitutes but
one violation of the statute. -^"^

The confinement of each animal does not constitute a separate offense, mul-
tiplying the penalty by the whole number of animals carried, but the confinement
of an entire number of animals is a single offense. ^-^

§ 4005. Negligence of Servant. — It is no defense to an action for "know-
ingly and willfully"' violating the act that the defendant made rules requiring its

48. New York, etc., R. Co. v. United ascertaining the number of offenses corn-
States, 165 Fed. 833, 91 C. C. A. 519. mitted. United States v. New York, etc.,

49. Knowledge of servants.— United R. Co., 168 Fed. 699, 94 C. C. A. 76.
States v. Southern Pac. Co., 157 Fed. 459. Each independent shipment or consign-

50. Separate offenses. — United States v. ment of stock constitutes tiie basis for a
Atchison, etc., R. Co., 166 Fed. 160. separate charge, and each separate con-

51. United States v. Baltimore, etc., R. finement of the same stock for longer
Co., 159 Fed. 33, 86 C. C. A. 223; United than the prescribed time, although dur-
States V. Oregon R., etc., Co., 163 Fed. ing the same continuous transportation,
642. But see United States v. St. Louis, also constitutes a separate offense,
etc., R. Co., 107 Fed. 870, United States v. Southern Pac. Co., 157

The individual shipment, and not the Fed. 459.

car load, is the unit in case of violation 52. New York, etc., R. Co. v. United

of the act. Judgment, United States v. States, 165 Fed. 833, 91 C. C. A. 519.

Southern Pac. Co., 162 Fed. 412, affirmed 53. United States v. Sioux City Stock

in 171 Fed. 360, 96 C. C. A. 252. Yards Co., 162 Fed. 556, judgment af-

Where several shipments of live stock firmed, 167 Fed. 126.

belonging to different owners are car- 54. United States v. New York, etc.,

ried in the same train in violation of the R. Co., 191 Fed. 938.

act, each shipment, and not the train 55. United States v. Boston, etc., R.

load, is the integer for the purpose of Co., 15 Fed. 209.



3623



INTERSTATE COMMERCE ACT.



4005-4008



employees to comply with such statute, and that its failure to do so was through
the negligence of an employee, and in violation of its rules.-"'^ A carrier of live
stock may employ a subordinate agency to perform a service undertaken by it,
but the agency must be subordinate to the carrier, and not to one who neither
employs it, pays it, nor has any right to interfere with it.^"

§ 4006. Preparation and Facilities. — Under the act providing that no
railroad company shall confine live stock in cars for a longer period than twenty-
eight hours without unloading for rest, water, and feed, it is the duty of a rail-
road to be reasonably well prepared to care for stock at the places where it is
unloaded for rest, water, and feed.-'^'^

§ 4007. Shipment Through Foreign Country. — The act prohibiting in-
terstate carriers of live stock from confining the same in cars for a period longer
than twenty-eight consecutive hours without unloading for rest, water, and feed-
ing, is applicable to a shipment originating in one state and ending in another,
when confinement for more than the statutory period is shown, even though
part of such period elapsed while the animals were in a foreign country. ^^

§ 4008. Shipment under Agreement. — A legal request for an extension of
time of confinement of cattle, may be made before the transportation commences,
although it is not induced by any unforeseen contingency.''^ But an agreement



Online LibraryThomas Johnson MichieA treatise on the law of carriers (Volume 4) → online text (page 98 of 214)