United States v. Chicago, R. I. & P. Ry. Co.

GEIGER, District Judge

(after stating the facts as above). The question in the case is whether the defendant has violated the “28-Hour Law” (Act June 29, 1906), which penalizes carriers for confining' cattle in cars for a longer period than the prescribed period of 28, or a stipulated period (as in the present case) of 36 hours. It will be noted that, 9 hours before the expiration of such time, it delivered the cars to the connecting carrier, which received them—apparently in fulfillment of its obligation to continue the transit. Although its obligation had attached, such connecting carrier seems to have renounced it because the 9 hours remaining, although sufficient for performance of its obligation to transport the cars, would be so nearly consumed that the next succeeding carrier would refuse to accept them. Why it would refuse does not appear, but perhaps because-of the inability of such next succeeding carrier, in view of the time and place of delivery, to comply with the statute.

Now it may be assumed that, in transportation through a connection of carriers, each carrier must observe the statute. That is, no carrier who contributes “knowingly and willfully” to the acts which constitute a violation of the statute can escape the penalty because another also participated therein or contributed thereto. But it cannot be true that the carrier, who, having discharged its obligation in the transportation without a violation of the statute, stands, after delivery to. a connecting carrier, as a sort of absolute guarantor of the latter’s compliance with the statute. The defendant herein surrendered to the Illinois Central Railroad, rightfully, and in discharge of its obligation as a carrier, the possession of the cars. Therefore, in so far as the duty of compliance with the statute rests upon such possession under an obligation to transport, the defendant had freed itself, rightfully (if not absolutely, certainly provisionálly), from the capacity, and hence the necessity, on its part, further to discharge the statutory obligation. When, how, or by force of what circumstance, disclosed in the record, before us, was it reinstated, as it were, to the obligation of the statute ? Certainly, the notification by the connecting carrier, after it had, according to customary method of interchange, fully accepted the cars, and removed them to its own yards, that it would not accept them, did not compel the defendant at once to submit to reassumption of full responsibility for their further transit and the discharge of the statutory duty. It refused, properly, to submit to the connecting carrier’s attitude, based as it was wholly upon a prophecy, or conjecture that a further connecting carrier might or would, nine hours later, decline to accept the cars. Now in this situation, and, so far as the record shows, without the actual knowledge of the defendant, the connecting carrier again placed the cars upon' the defendant’s interchange track, where they remained until the statutory period had expired. In my judgment the facts fall very short of showing a retaking of the cars with such full knowledge as to justify the finding that it “willfully and knowingly” failed to obey the statute. The contention advanced by the government, that the defendant, through the refusal and acts of the connecting carrier, was ■reinstated, constructively, in the possession of the cars, it seems to me, negatives, rather than supports', the claim of1 willfully or knowingly failing to discharge the, statutory obligation.

Judgment for the defendant.