A receiver of a corporation is not a corporation, and not within
the terms of the penal statute regulating corporations involved in
this action. United States v. Harris, 177 U.
Insofar as a receiver of a railroad company transports
passengers and property he is a common carrier with rights and
responsibilities as such, and while operating a railroad, he is
subject to the penal provisions of a statute regulating the actions
of common carriers in regard to transportation.
Prior to the amendment of March 4, 1913, extending the
Quarantine Act of March 3, 1905, c. 1496, 33 Stat. 1264,
prohibiting the transportation of cattle from a quarantined state
to any other state, so as to make it apply to any common carrier,
§§ 2 and 4 of that act did not apply to receivers of railroad
Entries in the caption and on the back of the indictment are
convenient means of reference, and in cases of doubt might be of
assistance in determining what statute has been violated,
Williams v. United States, 168 U.
, but they form no part of the indictment
The statute on which the indictment is founded must be
determined as matter of law from the facts therein charged, and the
facts as pleaded may bring the offense charged within an existing
statute although the same is not mentioned in the indictment and
another statute is referred to in the entries on the back and in
Under the Criminal Appeals Act of 1913, the statute on which as
matter of law the indictment is based may be misconstrued not only
by misinterpretation but by failing to apply its provisions to an
indictment which sets out facts constituting a violation of its
An indictment must set out the facts, and not the law.
The right of the government to an appeal under the Criminal
Appeals Act of 1907 cannot be defeated by entering a general order
of dismissal without referring to the statute involved or giving
the reasons on which the decision was based.
Page 235 U. S. 232
An error on the part of the trial judge dismissing the
indictment in construing the statute in it original form as not
including the offense charged cannot be cured, nor can his decision
be sustained, because the amendment by which the statute was made
to include the offense had not been called to his attention.
The facts, which involve the jurisdiction of this Court under
the Criminal Appeals Act of 1907 and the construction of the Cattle
Quarantine Act of 1905 and its application to receivers of common
carriers under the Amendment of 1913, are stated in the
MR. JUSTICE LAMAR delivered the opinion of the Court.
The grand jury for the Western Division of the Western District
of Missouri returned an indictment against the St. Louis & San
Francisco Railroad Company and its receivers, charging that, on
August 16, 1913, Nixon, Biddle, and West, as receivers of said
company, were operating the property and business of said
corporation as a common carrier of freight, and unlawfully
transported cattle from a quarantine district in Oklahoma to Kansas
City, Missouri, without compliance with the rules and regulations
established by the Secretary of Agriculture.
Both the indorsement and caption to this indictment described it
as being for "violation of secs. 2 and 4 of the Act of March 3,
1905, 33 Stat. 1264." Those sections of that act provide that "no
railroad company . . . shall transport from any quarantine state .
. . to any other state any cattle . . . " except "in compliance
Page 235 U. S. 233
with regulations promulgated by the Secretary of
The defendants demurred on the ground "that the indictment does
not charge any offense for which receivers herein can be held." The
court treated the indictment as founded on the Act of 1905,
imposing a penalty upon railroad companies, and, after argument,
sustained the demurrer, filing a memorandum in which he held that,
under the ruling in United States v. Harris, 177 U.
, the statute did not create an offense for which
receivers could be punished.
The case is here under the Criminal Appeals Act (34 Stat. 1246)
on a writ of error in which the government excepts generally to the
quashing of the indictment and specially to the court's
construction of this Act of 1905.
In view of the decision in United States v. Harris,
judgment of the court below would necessarily have to be affirmed
if the case was to be determined solely by the provisions of the
Quarantine Act of 1905, which imposes a penalty for the
transportation of cattle by a railroad company. But a receiver is
not a corporation, and therefore not within the terms of a statute
applicable to railroad companies, even though cattle from an
infected district transported by him would be as likely to transmit
disease as if they had been shipped over the same line while it was
being operated by the company itself. And, no doubt in recognition
of this fact, and in order to make the remedy as broad as the evil
sought to be cured, Congress, by the Act of March 4, 1913, 37 Stat.
831, c. 145, made all of the provisions of the original Quarantine
Act of 1905
"apply to any railroad company or other common carrier whose
road or line forms any part of a route over which cattle or
other livestock are transported in the course of a shipment from a
quarantine state to any other state.
The statute, as thus amended, applied to transportation of
livestock over short lines belonging to private individuals
Page 235 U. S. 234
or to lumber companies hauling freight for hire; to roads
operated by trustees under power contained in a mortgage, and also
to the more common case where a railroad was being operated by a
receiver acting under judicial appointment. For insofar as he
transports passengers and property, he is a common carrier with
rights and civil responsibility as such (Eddy v.
Lafayette, 163 U. S. 464
Hutchinson on Carriers § 77). And there is no reason suggested why
a receiver operating a railroad should not also be subject to the
penal provisions of a statute prohibiting any common carrier from
transporting livestock by rail from a quarantine district into
another state. Erb v. Morasch, 177 U.
; United States v. Ramsey,
But it is said that the amendment, buried in the Agricultural
Appropriation Act of 1913, was unknown to the grand jury when the
indictment was found, and was not construed in deciding the motion
to quash. And it is contended that, inasmuch as the criminal
appeals act only authorizes a review of a decision insofar as it
was "based upon the . . . construction of the statute upon which
the indictment was founded" (March 2, 1907, 34 Stat. 1246, c.
2564), the correct ruling that receivers are not within the Act of
1905 ought not to be reversed, because it now appears that they are
within the terms of the Act of 1913, which was not brought to the
attention of the district judge, and was not therefore construed by
him in fact. It is pointed out that, while there is a general
assignment that the court erred in quashing the indictment, yet the
government itself specifically complains of the court's
construction of the Act of 1905, not the Act of 1913. And to
emphasize the fact that the indictment was not founded on the
amendment, attention is called to the fact that entries on the back
and in the caption of the indictment described it as being for
"violation of §§ 2 and 4 of the act of March 3, 1905, 33 Stat.
Page 235 U. S. 235
1264, c. 1496," which apply to railroad companies, and not to
These entries are useful and convenient means of reference, and
in case of doubt might possibly be of some assistance in
determining what statute was alleged to have been violated. But
these entries form no part of the indictment (Williams v.
United States, 168 U. S.
), and neither add to nor take from the legal effect
of the charge that the receivers, while operating the business of
the corporation as a common carrier, transported cattle "contrary
to the form of the statute in such cases made and provided." What
was that statute and on what statute the indictment was founded was
to be determined as a matter of law from the facts therein
There is no claim that it was quashed because of any defect in
matter of pleading, and, that being true, the ruling on the
demurrer that "the indictment does not charge any offense for which
the receivers can be held" necessarily involved a decision of the
question as to whether there was any statute which punished the
acts therein set out. In determining that question, it was
necessary that the indictment should be referred not merely to the
act mentioned in argument, but to any statute which prohibited the
transportation of cattle by the persons in the manner and on the
date charged in that indictment. For the reasons already pointed
out, it was a misconstruction of the Act of 1913, to which the
indictment was thus legally referred, to hold that receivers acting
as common carriers were not within its terms.
Nor can a reversal be avoided by the claim that the Act of 1913,
though applicable to the facts charged in the indictment, had not
been construed by the court. For within the meaning of the Criminal
Appeals Act (34 Stat. 1246), the statute on which, as matter of
law, an indictment is founded may be misconstrued not only by
Page 235 U. S. 236
its language, but by overlooking its existence and failing to
apply its provisions to an indictment which sets out facts
constituting a violation of its terms. It is "a solecism to say
that the decision that the acts charged are not within the statute
is not based upon a construction of it." United States v.
Patten, 226 U. S. 535
It would, of course, be fairer to the trial judge to call his
attention to the existence of the act on which the indictment was
based (United States v. George, 228 U.
). Yet an indictment must set out facts, and not
the law, and when he sustained the demurrer on the ground that the
shipment therein stated did not constitute a crime of which the
receivers could be convicted, he in legal effect held that they
were not liable to prosecution if, while operating a road as common
carrier, they hauled livestock from a quarantine state to another.
In rendering that decision, he made a ruling of the very kind which
the United States was entitled to have reviewed under the
provisions of the Criminal Appeals Act (34 Stat. 1246). If that
were not so, the right of the government could in any case be
defeated by entering a general order of dismissal, without
referring to the statute which was involved, or without giving the
reasons on which the decision was based.
The error can no more be cured by the fact that the existence of
the statute was not called to the attention of the court than the
receivers, on the trial before the jury, could excuse themselves by
proof that they did not know of the passage of the amendment which
made it unlawful for them to transport cattle by rail from a
quarantine state in interstate commerce.
MR. JUSTICE McREYNOLDS took no part in the consideration and
decision of this case.