Baltimore Ohio Southwestern Railroad Company v. United States (220 U.S. 94)

'The act to prevent cruelty to animals while in transit,' approved June 29, 1906 (34 Stat. at L. 607, chap. 3594, U.S.C.omp. Stat. Supp. 1909, p. 1178), provides:

'Sec. 1. That no railroad. . . whose road forms 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 twentyeight 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 wilfully 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 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, 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 (86 C. C. A. 223, 159 Fed. 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.

Messrs. Edward Colston, Judson Harmon, A. W. Goldsmith, and George Hoadly for plaintiff in error.

[Argument of Counsel from pages 97-100 intentionally omitted]

Solicitor General Bowers for defendant in error.

Assistant Attorney General Denison for defendant in error on reargument.

[Argument of Counsel from pages 100-103 intentionally omitted]

Mr. Justice Lamar, after making the foregoing statement, delivered the opinion of the court: