ST. LOUIS MERCHANTS' BRIDGE TERMINAL RY. CO. v. UNITED STATES, 209 F. 600

KOHLSAAT, Circuit Judge (after stating the facts as above).

The statute under which this suit was instituted (Supplement of 1911 to Compiled Statutes of 1901, passed June 29, 1906) prohibits the confinement of stock for a period of more than 28 hours, without unloading, resting, feeding, and watering for at least 5 hours, provided that upon the written request of the owner or person in charge—separate and apart from the bill of lading—the period of confinement may be enlarged to 36 hours, and provides that any carrier “who knowingly and willfully fails to comply” with the provisions of the act “shall for every such failure be liable for and forfeit and pay a penalty,” etc., except in certain cases enumerated which are not here in question.

The declaration charges, as the statute requires, that plaintiff in error “knowingly and willfully confined” said stock in said cars for a longer period than that permitted by the statute. As was said by the United States Circuit Court of Appeals for the Eighth Circuit in C., B. & Q. Ry. Co. v. United States, 194 Fed. 342, 114 C. C.

A. 334: “ ‘Willfully’ means purposely or obstinately, and is designed to describe the attitude of á carrier who, having a free will or choice, either intentionally disregards the statute or is plainly indifferent to its requirements.” Thus, where the succeeding carrier did not know that the stock had been confined contrary to law, it was held that the carrier had not violated the statute. St. Joseph Stockyards Co. v. United States, 187 Fed. 104, 110 C. C. A. 432; United States v. Stockyards Terminal Ry. Co., 178 Fed. 19, 101 C. C. A. 147.

It is inferable from the record that in taking the cars in question from St. Louis, Mo., to the tracks of ,the National Stockyards, plaintiff in error was obliged to traverse a considerable portion of its tracks used in hauling cars from the Wabash and the Chicago & Rock Island railroad termini in St. Louis, Mo., to the forwarding connections across the river in Illinois. Were it not for this fact, it would be difficult to conceive of even colorable support for the government’s contention that the statute had been violated by the above-enumerated acts.

If, for instance, plaintiff in error had been compelled, in delivering the stock to an unloading place, to go in an opposite direction from the places where the western roads connected with those across the river, would there have been any pretense for the construction now sought to be placed upon the acts-of plaintiff in error in taking the stock with all reasonable dispatch to the nearest, most convenient, and most suitable unloading place? Most assuredly not. How is the situation disclosed in this record different?

Plaintiff in error hauled the stock in question with all dhe diligence, on its trades, being the only available and quickest route to the stockyards for unloading; that being, so far as shown, the only available place for that purpose. In so doing it was placing the most humane and most reasonable construction upon the statute. As was said by Judge Adams in United States v. Union Pacific Ry. Co., 169 Fed. 68, 94 C. C. A. 433, and adopted by the court in United States v. Stockyards Terminal Ry.

Co., supra, the real purpose of the legislation “was to alleviate the condition of dumb animals in transit.” In the case just cited the stock was hauled 11 miles to the St.' Paul stockyards at St. Paul, Minn.; that being the nearest and most suitable place for unloading. This act was regarded as a recognition of the statute rather than as a violation. In Northern Pacific Terminal Co. v. United States (C. C. A. 9th Cir.) 184 Fed. 603, 106 C. C.

A. 583, where a car load of horses had been confined for more than the period allowed by the statute, prior to its delivery to the plaintiff in error in that case, and the latter at once removed it to the Union Stockyards Company of' Portland, Or., a distance of 1,300 feet, the court says: “This action of the plaintiff in error, so far from being in contravention of the provisions of’the act of Congress in question, was, in our opinion, but aiding in giving effect to its object and purpose. * * * No law should be so construed as to do violence to its clear meaning and intent, and bring about unjust or absurd results.” We have searched this record in vain for any facts tending to show that plaintiff in error knowingly and willfully violated the statute.

In our opinion the acceptance, under the circumstances, of the cars of stock by the plaintiff in error, was in effect

an act in the process of delivering the same to' the stockyards for the purpose of unloading the stock. Had it done otherwise than it did, plaintiff in error would have been guilty of inflicting further suffering upon dumb animals, and would have sacrificed the spirit of the áct for the letter. The judgment of the District Court is reversed, with direction to grant a new trial.