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
Page 220 U. S. 95
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
Page 220 U. S. 96
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,
Page 220 U. S. 97
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.
Page 220 U. S. 103
MR. JUSTICE LAMAR, after making the foregoing statement,
delivered the opinion of the Court.
The consolidated record of the eleven cases shows that several
hundred cattle and hogs of eleven different owners, shipped in 21
cars, loaded at different stations at various hours on February 2,
1907, were in one train at the time of the expiration of the
successive periods for the unloading required by the Act of 1906,
"to prevent cruelty to animals in transit." The question is as to
the number of penalties for which, in such a case, the carrier is
liable.
Under the nearly identical act of 1873, Rev.Stat. 4386, it was
held that the penalties were not to be measured by the number of
cattle in the shipment, nor the number of cars in which they were
transported.
United States v. Boston & Albany R. Co.,
15 F. 209;
United States v. St. Louis & R. Co., 107 F.
870. And the company contends that, as the cattle here were in one
train, the failure to unload was one offense, punishable by one
penalty. In support of its position, it relies, among others, on
authorities which hold that, in larceny, if the goods stolen at one
time belong to several persons, the offense is single, and that, on
conviction for working on Sunday, there is only one breach of the
statute, the penalty for which cannot be multiplied by the number
of items of work done on the day of rest.
Page 220 U. S. 104
But this does not mean that, if the thief should, at a different
time, steal property from the same place, he could not be punished
for the new transaction, nor that, because a man had been convicted
for working on one Sunday, he could not be convicted and punished
for subsequently working on a different Sunday. For every penal
statute must have 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.
Here, the 21 cars, loaded at different periods, had been
gathered into one train. As the period of lawful confinement of the
cattle first loaded expired, there was a failure to unload. For
that failure, the statute imposed a penalty. But there was then no
offense whatever as to the animals in the other 20 cars of the same
train, which, up to that time, had not been confined for 28
hours.
When, however, later in the day at the same or a different
place, the time for the lawful confinement of the animals in the
other 20 cars successively expired, there were similar but distinct
and separate failures then and there to unload. They were
separately punishable, since the provision that, "for every such
failure," the company shall be liable to a penalty prevented a
merger. If the period of lawful confinement of several car loads of
cattle expires at the same time and place, and the company fails to
unload them, as required by the statute, and if these cattle all
belong to one owner, it is conceded that there is only one offense.
It is not different if the same cattle at the same time and place,
had belonged to various owners, or had been shipped under different
consignments.
Several expressions in the statute, and particularly the
provision that, in estimating the period of lawful confinement,
"the time consumed in loading and unloading shall not be
considered," recognize that the proper loading
Page 220 U. S. 105
or unloading of a number of animals may be treated as a single
act, and there is nothing to indicate that it is to be treated as
more than one act because the animals happen to belong to different
persons. The loading of numerous cars might proceed concurrently,
or, if not discontinuous or unduly prolonged, several cars of
cattle of the same consignor might be loaded at the same time
within the meaning of the act, in which event, the period of their
lawful confinement on the same train would end at the same time and
place. There would in this latter case be coincidence between the
one shipment and the one offense.
But, in determining whether the number of penalties is always to
be measured by the number of shipments on the same train, even when
the animals were loaded at different times, it is to be remembered
that the statute is general. It applies to the transportation of a
trainload of cattle belonging to one owner, to the more usual case
where animals belonging to one or more owners are loaded into
different cars at different times, and also to those instances
where one or a few horses or other animals are shipped, and at a
different time or farther on during the journey other animals are
loaded into the same car. These differences in shipments do not
affect the duty of the carrier to the animals, but only the time
when the duty to unload is to be performed. The number of
consignors, the consent of the owner or agent in charge of the
particular shipment that the cattle might be confined for
thirty-six hours, the number of bills of lading, and the
particulars of the shipment, are immaterial, except as they serve
to fix the limit of lawful confinement.
To illustrate: it appears in this record that several hundred
animals belonging to one owner and consigned to one dealer were
loaded into four cars at the same time. The 28 hours of their
lawful confinement necessarily expired at the same time. The
simultaneous failure to unload these four cars was single, and
punishable as a single
Page 220 U. S. 106
offense. But the duty and offense in this transaction would not
have been quadrupled if the company had issued to the owner four
bills of lading instead of one. Nor would there have been any
increase of duty if these same cattle had been received from four
consignors instead of one.
The statute was not primarily intended for the benefit of the
owners. Indeed, it is restrictive of their rights. The penalty does
not go to the consignor, but to the United States for each failure
to unload cattle, regardless of who may own them, and even if the
owner consented to their confinement beyond a period of 36 hours.
The title of the act is "to prevent cruelty to animals in transit,"
its declared
"intent being to prohibit their continuous confinement beyond a
period of 28 hours, except upon the contingencies hereinbefore
stated."
Regardless of the number of shipments at any time and place
where they are willfully and knowingly confined beyond the lawful
period, there is a violation of the statute as to the animal or
animals then and there in custody for transit in interstate
commerce.
The point is made in the brief that this Court has no
jurisdiction, because the amount involved in the cases embraced in
these writs of error was only $1,000. The court, we think properly,
consolidated all the cases (Rev.Stat. ยง 921), and, as consolidated,
the amount of the possible penalties sued for in the eleven actions
was fifty-five hundred dollars. The company is liable of nine
penalties, because nine times it failed to unload as required by
the statute. One penalty should be imposed as to animals referred
to in cases numbered 1871 and 1872, and one as to those in 1869 and
1873, where the time for the required unloading respectively
coincided.
In other respects, the judgment of the circuit court of
appeals reversing the judgment of the district court is
affirmed.
