* OF THL U N I VERS ITY Of ILLINOIS n'Dits ■ Unbl-ir The person charging this material is re- sponsible for its return to the library from which it was withdrawn on or before the Latest Date stamped below. Theft, mutilation, and underlining of books are reasons for disciplinary action and may result in dismissal from the University. UNIVERSITY OF ILLINOIS LIBRARY AT URBANA-CHAMPAIGN L161 — 0-1096 Digitized by the Internet Archive in 2017 with funding from University of Iliinois Urbana-Champaign Aiternates H https://archive.org/detaiis/twentyeighthouriOOunit Issued October 12, 1909. U. S. DEPARTMENT OE AGRICULTURE, OFFICE OF THE SOLICITOR. GEO. P. McCABE, Solicitor. THE TWENTY-EIGHT HOUR LAW ANNOTATED ACT OF CONGRESS APPROVED JUNE 29, 1906, C. 3594, 34 STAT. 607. WASHINGTON: GOVERNMENT PRINTING OFFICE. 1909, LETTER OE TRANSMITTAL. U. S. Department of Agriculture, Office of the Solicitor, M^ashington^ D. G October 1909. Sir: I recommend the publication of tlie manuscript transmitted herewith, which is an annotation of the act of Congress approA^ecl June 29, 1906, commonly knoAAm as the “ Twenty-eight Hour LaAv.” This annotation has been prepared under iny. direction by Mr. Otis H. Gates, Mr. lY. Parker Jones, and Mr. K. W. AYilliams, jr., laAv clerks of this Office. It is belieA^ed that this publication aauII be of material help to officers of the GoA^ernmcnt interested in the trial of cases under the act. Kespect fully, Geo. V . McCabe, Solicitor, Hon. James Wilson, Secretary of Agriculture, 2 7 f! r ; ri'i.'s INTRODUCTION. The original act of Congress to prevent cruelty to animals in interstate transit by common carriers was passed by the Forty-second Congress, third session, and approved by the President on March 3, 1873 (17 Stat. SSd). This act was incorporated in the Eevised Stat- utes of the United States, first edition, as sections 4386 to 4390, in- clusive. Comparatively few cases went to trial under this statute, and it was repealed and supplanted by the present law, commonly known as the “ Twenty-eight Hour Law,” which was approved and became effective on June 29, 1906 (34 Stat. 607). Since the present statute has been in effect a great number of cases reported by the Department of Agriculture to the Department of Justice for prosecution have been tried in the courts, and reports of some of these cases now appear in the volumes of the Federal Ke- porter. The Department of Agriculture has made a practice of publishing, in a series of circulars, decisions of the courts in cases involving salient points of the statute, for the use and information of officers of the Department, of common carriers, and of the United States courts and district attorneys. Many of the cases are in accord as to leading questions of construction of the statute. The decisions published in the Federal Eeporter and the circulars of the Depart- ment have now reached considerable volume. The purpose of this annotation is to bring this material together in brief form and to furnish a convenient means of reference to these decisions of the courts construing the various parts of the statute. This publication contains the “ Twenty-eight Hour Law ” anno- tated with brief abstracts from the decisions of the federal courts in cases that have been prosecuted under the act since it went into effect and up to the present time, including also abstracts from five cases and an opinion of the Attorne 3 ^-General of the United States under sections 4386-4390 of the Eevised Statutes of the United States, which are deemed to apph^ also to the present Twenty-eight Hour Law. . 3 1 1 64660 CONTENTS. Page. Text of Twenty-eight Hour Law (act of June 29 , 1906) 7 Annotations 10 Constitutionality A 10 Purpose 11 Parties amenable 12 Stockyard companies and railways • 12 Terminal railroad companies 12 Lessees 12 Carriers in general 12 Venue 13 “ Other animals ” 13 “Knowingly” 14 “Willfully” 15 “Knowingly and willfully” 16 “ Knowingly and willingly ” 18 Period of confinement 18 “Accidental or unavoidable causes ” 19 “Sheep” 20 “ In the nighttime ” 21 Unloading for rest, water, and feeding 21 “ Properly equipped pens” 22 Unit of violation 22 Assessment of the penalty 24 Evidence 24 Burden of proof 24 Presumptions 25 Rule of construction 26 Thirty-six hour request 27 Defenses 27 Depositions • 27 Writs of error 28 5 THE TWENTY-EIGHT HOUR LAW ANNOTATED. TEXT OF TWENTY-EIGHT HOUR LAW (ACT OF JUNE 29, 1906.) AN ACT To prevent cruelty to animals while in transit by railroad or other means of transportation from one State or Territory or the District of Columbia into or through another State or Territory or the District of Columbia, and repealing sections forty-three hundred and eighty-six, forty- three hundred and eighty-seven, forty-three hundred and eighty-eight, forty- three hundred and eighty-nine, and forty-three hundred and ninety of the United States Revised Statutes. Be it enacted Jjy the Senate and House of Representatives of the United States of Ameidca in Congress assembled^ That no railroad, express company, car company, common carrier^ ® other than by Avater, or the receiATr, trustee, or lessee- of any of them, Avhose road forms any part of a line of road over Avhich cattle, sheep, swine, or other animals^ shall be conveyed from one State or Territory or the District of Columbia into or through another State^ or Territory or the District of Columbia, or the owners or masters of steam, sailing, or other ATSsels carrying or transporting cattle, sheep, SAvine, or other animals from one State or Territory or the District of Columbia into or through another State or Territory or the District of Columbia, shall confine ® the same in cars, boats, or vessels of aii}^ description for a jicriod longer than tAventy-eight consecutive hours” Avithout unloading the same in a humane manner, into prop- erly equipped pens” for rest, AAUiter, and feeding,® for a period of at least five consecutive hours, unless prevented by storm or by other accidental or unaAmidable causes” Avhich can not be anticipated or avoided by the exercise of due diligence and foresight: Provided^ That upon the Avritten request of the OAvner or })erson in custody of that particular shipment, Avhicli Avritten 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 esti- mating^^ such confinement, the time consumed in loading and un- loading shall not be considered, but the time during Avhich the animals liav^e been confined without such rest or food or Avater on connecting roads shall be included, it being the inteiiT^ of this act to prohibit their continuous confinement beyond the period of tAventy- eight hours, except upon the contingencies hereinbefore stated:^® “ Figures refer to cross refereuces given on luige 9. 7 8 THE TWENTY-EIGHT HOUR LAW ANNOTATED. Provided,, That it shall not be required that sheep^^ be unloaded in the nighttime, but where the time expires in the nighttime^^ in case of sheep the same may continue in transit to a suitable place for unloading, subject to the aforesaid limitation of thirty-six hours. Sec. 2. That animals so unloaded shall be properly fed and watered during such rest either^® by the owner or person having the cus- tody thereof, or in case of his default in so doing, then by the rail- road, exjDress company, car company, common carrier other than by water, or the receiver, trustee, or lessee of any of them, or by the owners or masters of boats or vessels transporting the same, at the reasonable expense of the oAvner or person in custody thereof, and such railroad, express company, car company, common carrier other than by Avater, receiver, trustee, or lessee of any of them, owners or masters, shall in such case have a lien upon such animals for food, care, and custody furnished, collectible at their destination in the same manner as the transportation charges are collected, and shall not be liable for any detention of such animals, Avhen such detention is of reasonable duration, to enable compliance with section one of this act ; but nothing in this section shall be construed to prevent the oAvner or shij^jier of animals from furnishing food therefor, if he so desires. Sec. 3. That any railroad, express company, car company, common carrier other than by Avater, or the receiver, trustee, or lessee of any of them, or the master or OAvner of any steam, sailing, or other vessel Avho knowingly^’’ and willfully^® fails to comply with the provisions of the tAvo preceding sections shall for cA^ery^® such failure be liable for and forfeit and pay a penalty-*’ of not less than one hundred nor more than five hundred dollars: Provided,, That Avhen animals are carried in cars, boats, or other vessels in Avhich they can and do have proper food, Avater, space, and opportunity to rest the provisions in regard to their being unloaded shall not apply. Sec. 4. That the penalty created by the preceding section shall be recovered by civiP^ action in the name of the United States in the circuit or district court holdeii Avithin the district^^ where the vio- lation may have been committed or the person or corporation resides or carries on business; and it shall be the duty of United States attor- neys to prosecute all violations of this act reported by the Secretaiy of Agriculture, or which come to their notice or knoAvledge by other means. Sec. 5. That sections forty-three hundred and eighty-six, forty- three liundred and eighty-seA^en, forty-three hundred and eighty-eight, forty-three hundred and eighty-nine, and forty-three hundred and ninety of the Revised Statutes of the United States be, and the same are hereby, repealed. Approved, June 29, 1906. REFERENCES TO ANNOTATIONS. 9 (1) See Parties Amenable, p. 12; Defenses, notes a, &, and c, p. 27. (2) See Parties Amenable, note d, p. 12. (3) See “Other Animals,” p. 13. (4) See Parties Amenable, notes i, j, and 1c, p. 13. (5) See Period of Confinement, note a, p. 18. (6) See Parties Amenable, note /, p. 13; “ Knowingly,” notes / and g, p. 14. (7) See “ Properly Equipped Pens,” notes a, &, c, and d, p. 22; “ Knowingly and Willfully,” note h, p. 16. (8) See Unloading for Rest, Water, and Feeding, p. 21. (9) See “Knowingly and Willfully,” p. 16; “Knowingly and Willingly,” p. 18; “Accidental or Unavoidable Causes,” p. 19; Evidence, note d, p. 25. (10) See Constitutionality, notes J) and d, p. 10; Thirty-six Hour Request, p. 27. (11) See Period of Confinement, notes &, c, and d, p. 18; “Knowingly,” notes &, c, d, and e, p. 14 ; Evidence, note j, p. 25. (12) See Purpose, p. 11. ^ (13) See Defenses, note c, p. 27. (14) See “ Sheep,” p. 20. (15) See “In the Nighttime,” p. 21. (16) See Unloading for Rest, Water, and Feeding, note c, p. 21. (17) See “ Knowingly,” p. 14; “ Knowingly and Willfully,” p. 16; “ Know- ingly and Willingly,” p. 18. (18) See “Willfully,” p. 15; “Knowingly and Willfully,” p. 16. (19) See Unit of Violation, p. 22. (20) See Assessment of the Penalty, p. 24. (21) See Evidence, p. 24; Rule of Construction, p. 26; Depositions, p. 27; Writs of Error, p. 28. (22) See Venue, p. 13; Constitutionality, notes a and c, p. 10. 10374—09 2 ANNOTATIONS. [Cases decided in 1907 and subsequently are under the act of June 29, 190G (34 Stat. GOTi. Cases decided prior to 1907 are under sections 4386-4390 K. S. and are marked below with an asterisk.] CONSTITUTIONALITY. a. Since an action against an interstate carrier for violation of the statute is a civil action to recover a penalti^, section L, anthorizing such action to be brought in the district Avhere the violation may have been committed or the person or corporation resides or carries on business, is not unconstitutional as a violation of the Sixth Amendment to the Federal Constitution. Southern Pacific Co. v. U. S., 171 Fed. 364. (C. C. A., 1909.) 1). The provision of the statute authorizing the owner or person in custody of a shipment of live stock to extend the time of confinement to thirty-six hours is not such a delegation of legislative power as renders the law unconstitutional. Southern Pacific Co. r. U. S.. 171 Fed. 360. (C. C. A., 1909.) Circular No. 23, Office of the Solicitor, Department of Agriculture. c. An action under the Twenty-eight Hour Law, as provided in its fourth section, may lawfully be brought and tried in the district wherein the defendant resides or carries on business. This provision of the laAv is not in conflict Avith section 2 of article 3 of the Constitu- tion, nor Avith the Sixth Amendment thereto. St. Louis & San Francisco R. Co. r. U. S., 169 Fed. 69. (C. C. A., 1909.) Circular No. 17, Oflice of the Solicitor, Department of Agriculture. cZ. The provision in the statute that live stock in transit may be continued up to thirty-six hours at the written request of the shipper does not constitute a delegation of legislatii^e power or authority to the owner or shipper, and the act is not thereby made unconstitutional. U. S. V. Oregon Railroad & NaA’igation Co., 163 Fed. 640 (1908). Circular No. 8, Oflice of the Solicitor, Department of Agriculture. e. It is competent for Congress to provide for recoA^ery of penalties imposed for Adolation of a statute either by a criminal or a cIauI action. V. S. V. Chicago North Western R. Co. (1908). Circular No. 5, Oflice of the Solicitor, Department of Agriculture. 10 CONSTITUTIONALITY PURPOSE. /. * The statute (secs. 4386-4390 R. S.) is directly within the terms of that clause of the Constitution which confers upon Congress the power to regulate commerce among the several States, and is con- stitutional. U. S. V. Boston & Albany R. Co., 15 Fed. 209 (1SS3). PURPOSE. a. The purpose of the Twenty-eight Hour Law is to prevent any carrier from transporting animals in interstate commerce for a longer period than twenty-eight consecutive hours without unloading the same in a humane manner into properly equipped pens for rest, water, and feeding, for at least five consecutive hours. U. S. V. Atlantic Coast Line K. Co. (C. C. A., 1909.) Circular No. 21, Office of the Solicitor, Department of Agriculture. h. The object and purpose of this act is to prevent or reduce to a minimum the cruelty incident to the transportation of live stock. U. S. V. Southern Pacific Co. (1909). Circular No. 20, Office of the Solicitor, Department of Agriculture. c. The act is a humane act, intended to prevent cruelty to animals, and the act also has in view the protection of the interests of owners of animals and of the public, in preventing their health and condition being injured in transit. U. S. V. Pere Marquette K. Co., 171 Fed. 586 (1909). Circular No. 19, Office of the Solicitor, Department of Agriculture. d. The real purpose of the statute is to alleviate the condition of dumb animals in transit. U. S. V. Union Pacific It. Co., 169 Fed. 65. (C. C. A., 1909.) Circular No. 14, Office of the Solicitor, Department of Agriculture. e. The act has a twofold purpose: To prevent the cruel treatment of animals in their handling and care, and to subserve the interests of the owner. U. S. V. Oregon Kailroad & Navigation Co., lfi.‘> Fed. 640 (1908). Circular No. 8, Office of the Solicitor, Department of Agriculture. '/. The primary purpose of the statute is to prevent cruelty to animals while in the course of transportation by railroad or other conveyance. It may also have been to prevent damages to the owner by reason of such confinement. U. S. V. Sioux City Stock Yards Co., 162 Fed. 556 (1908). g. The general purpose of the statute was to prohibit the inhuman treatment of domestic animals in the possession of common carriers. U. S. V. Oregon Short Line R. Co., 160 Fed. 526 (1908). Circular No. 6, Office of the Solicitor, Department of Agriculture. h. The object and purpose of the act is to insure the humane treat- ment of animals in their interstate transportation upon cars. U. S. V. Southern Pacific Co., 157 Fed. 459 (1907). Circular (unnumbered), Office of the Solicitor, Department of Agriculture. i. * The statute (secs. 4386-4390 R. S.) was passed not more from considerations of synq)athy for the cattle tlian to protect the public from iu) position and fi'om unwholesome food. U. S. V. Louisville A Nashville R. Co., 18 Fed. 480 (1883). 12 THE TWENTY-ETGtIT HOUK LAW ANNOTATED. ( r M PARTIES AMENABLE. STOCKYARD COMPANIES AND RAILROADS. a. A stockyards company authorized by its articles of incorpora- tion to construct and maintain railroad tracks, and to own or -lease and operate engines and cars for hire, which transports live stock delivered by other interstate railroad comi)anies between their ter- minals and the stockyards, and hauls freight of the packing houses from one to the other, and cars loaded with ice or fuel to such houses from ditl'erent railroads entering the city, is a railroad company or common carrier other than by water, within the Twenty-eight Hour Law, which prohibits aii}^ railroad or common carrier other than by Avater, Avhose road forms a part of a line of road over Avhich animals shall be conveyed from one State to another, from confining the same for a longer period than twenty-eight consecutive hours Avithout unloading. U. S. V. Sioux City Stock Yards Co., 1G2 Fed. 556 (1908). TERMINAL RAILROAD C03IPANIES. l>. The Fort ITorth Belt BailAvay Company, transporting live stock from raihvay terminals at Fort Worth, Texas, to Fort Worth Stock Yards, is amenable to the TAventy-eight Hour LaAv. U. S. V. Fort Worth Belt By. Co. (1908). Circular No. 11, Office of the Solicitor, Department of Agriculture. c. * The Terminal Kailroad Association of St. Louis or the St. Louis Merchants’ Bridge Terminal Eaihvay Company, AAdiich accept at St. Louis, Missouri, liA^e stock which has been confined in cars of connecting raihvays for a period longer than tAventy-eight hours with- out haAdng been unloaded for rest, Avater, and feeding, and carry and deliver the stock across the Mississippi Kiver to the National Stock Yards in Illinois, are liable to the penalty imposed by section 438G K. S., unless the failure of the connecting carriers to unload was due to storm or other accidental causes, or unle.ss the stock Avere carried in cars in Avhicli it had an opportunity for feed, rest, and Avater. XXV Op. Atty. Geii. 411 (1905). LESSEES. d. The statute is aimed at the corporation actually operating the road. It assumes that the lessee is the active operator, and a declara- tion Avhich, folloAving the language of the statute, describes the de- fendant carrier as “ lessee ” is sufficient in this particular. U. S. V. New York Central & Hudson RiA^er R. Co., 165 Fed. 833. (C. C. A., 1908.) Circular No. 15, Office of the Solicitor, Department of Agriculture. CARRIERS IN GENERAL. e. * Section 4386 E. S. is unambiguous, and is clearly designed to prevent any “ railroad company Avithin the United States Avhose rail- road forms any part of a line of road over Avhich cattle, sheep, SAvine, or other animals are conveyed from one State to another ” from trans- PARTIES AMENABLE ^VENUE OTHER ANIMALS. 13 porting such animals under conditions other than those set forth in the statute. XXV Op. Atty. Gen. 411 (1905). /. *A railroad company which accepts stock for transportation when the animals have already been confined for more than twenty- eight consecutive hours without unloading for feed, rest, and water is undoubtedly liable to the penalty which sec. 4388 11. S. provides. XXV Op. Atty. Gen. 411 (1005). g. * The carrier with Avhoin the contract for shipment is made is not liable for the penalty under sec. 4388 11. S. because others in the chain of connecting carriers violated the Jaw after the stock had jtassed out of the control of the first carrier. U. S. V. Lonisville Nashville R. Co., 18 Fed. 480 (1883), h. * That carrier alone is liable for the jienalty imposed by section 4388 K. S. which had actual manual possession of the animals at the expiration of twenty-eight hours after they were loaded. U. S. V. Lonisville & Nashville R. Co., 18 Fed. 480 (1883). i. The statute does not apply to lines which lie wholly within the territorial limits of a State. U. S. V. Lonisville & Nashville R. Co., 18 Fed. 480 (1883). j. railroad company in a State, whose road forms a part of a line over which live animals are conveyed from another State, and which receives from connecting roads to be transported in the State animals which have been brought from another State, is en- gaged in interstate commerce, and is within the terms of sections 4386^390 K. S. U. S. V. Boston & Albany R. Co., 15 Fed. 209 (1883). Z‘. Section 4386 E. S. by its terms imposes a penalty only upon railroads which convey swine, sheep, etc., from one State to another. It does not embrace a shipment of swine from one point to another within the same State over a line entirely within the State. U. S. V. East Tennessee, Virginia and Georgia R., 13 Fed. 642 (1882). VENUE. Actions to recover penalties under tlie Twenty-eight Hour Law may be brought in any one of three districts — the district where the offense is committed; the district where the defendant resides; or a district where it carries on its business. U. S. V. Chicago & North Western Ry. Co. (1908). Circular No. 5, Office of the Solicitor, Department of Agriculture. See also St. Louis & San Francisco R. Co. v. U. S., 169 Fed 69. (C. C. A., 1909.) Circular No. 17, Office of the Solicitor. Department of Agriculture. Also Southern Bacilic Co. v. U. S., 171 Fed. 364. (C. C. A., 1909.) “OTHER ANIMALS.” * TJie term “other animals” employed in the statute (sec. 4386 11. 8.) includes mules and horses. U. S. V. Louisville A Nashville R. Co., 18 Fed. 480 (1883). ■ / '-til* 14 THE TWENTY-EIGHT HOUK LAW ANNOTATED. “ KNOWINGLY.” a. ^‘‘Knou'ingly ” in the Twenty-eight Hour Law simply means with knowledge of the facts. U. S. V. Southern Pacific Co, (1909). Circular No. 20, Office of the Solicitor, Departmeut of Agriculture. h. ^^Knoioingly ” in the Twenty-eight Hour Law means with a knoAvledge of the facts wdiich taken together constitute the failure to comply wdth the statute. A carrier wdiich receives from another a shipment of cattle wdth knowdedge of how^ long they have been con- fined wdthout rest, feed, or w^ater. and prolongs the confinement be- yond the statutory period, ‘‘ knowdngdy ” violates the law^ St. Louis & San Francisco R. Co. v. U. S., 169 Fed. 69. (C. C. A., 1909.) Circular No. 17, Office of the Solicitor, Department of Agriculture. c. It is the duty of a railroad compan}^ holding itself out to trans- port live stock to knoic when shipments are delivered to it and to use reasonable diligence in ascertaining how long stock so delivered have been in the cars wdthout unloading for rest, feed, and w’ater. U. S. V. Fort Worth Belt By. Co. (1908). Circular No. 11, Office of the Solicitor, Department of Agriculture. d. A railroad company knoicingly violates the statute if it has knowdedge of the fact that animals have not been unloaded for rest, feed, and water within the prescribed time, or if it has means of knowdedge of wdiich it is bound to avail itself and wdiich if follow^ed by diligent inquiry wmuld have brought the fact home to it, wdiether it avails itself of such means or not. U. S. V. Fort AVorth Belt By. Co. (1908). Circular No. 11, Office of the Solicitor, Department of Agriculture. e. Common carriers are chargeable under the statute w ith knotv- ledge not only of wdiat its agents actually kiieiv, but of ivliat they could have ascertained by the exercise of reasonable inquiry. U. S. V. Colorado & Southern liy. Co. (1908). Circular No. 7, Office of the Solicitor, Department of Agriculture. /. A complaint to recover the penalties prescribed by the statute is fatally defective if it fails to allege that the defendant “ know’- ingly confined the animals in excess of tAventy-eight hours. This is true even if the shipment Avas made excltisiA^ely upon the defend- ant's line of road. U. S. V. Oregon Short Line B. Co., 160 Fed. 526 (1908). Circular No. 6, Office of the Solicitor, Department of Agriculture. g. Plaintiff’s allegation that cattle had been confined b}^ a con- necting carrier for nineteen and one-half hours, and Avere further “ knoAA ingdy and Avillfully ” confined by the defendant for a period less than tAventy-eight hours, is not eciuivalent to an allegation that the defendant “ knoAvingly ” confined the animals in excess of tAventy- eight hours, and the complaint is fatally defectiA^e. U. S. V. Oregon Short Ifiue B. Co., 160 Fed. 526 (1908). Circular No. 6, Office of the Solicitor, Department of Agriculture. WILLFULLY. 1 15 “WILLFULLY.” a. “ Willfully ” as used in the Twenty-eight Hour Law means intentionally and voluntarily. U. S. V. Southern Pacific Co. (1909). Circular No. 20, Office of the Solicitor, Department of Agriculture. h. “ Willfully ” in the Twenty-eight Hour Law means purposely or obstinately, and is designed to describe the attitude of a carrier Avho intentionally disregards the statute, or is plainly indifferent to its requirements. St. Louis & San Francisco R. Co. v. U. S., 1G9 Fed. 09. (C. C. A., 1909.) Circular No. 17, Ofiice of the Solicitor, Department of Agriculture. c. “ Willfully ” in the Twenty-eight Hour Law means only the intentional doing of an act forbidden by the statute. U. S. V. Union Pacific R. Co., 109 Fed. 05. (C. C. A., 1909.) Circular No. 14, Office of the Solicitor, Department of Agriculture. (I. Defendant’s admission in the answer that the company know- ingly, that is intentionally, confined animals beyond the prescrilted period, is an admission also that it was icillfidJy done. U. S. V. Union Pacific R. Co.. 109 Fed. 05. (C. C. A., 1909.) Circular No. 14, Office of the Solicitor, Department of Agriculture. e. The word “ willfully ” in the Twenty-eight Hour Law does not require that there should be an evil intent to constitute the offense, but it is sufficient if the act was done knowingly and purposely. U. S. r. New York Central & Hudson River R. Co., 105 Fed. 833. (C. C. A., 1908.) Circular No. 15, Ofiice of the Solicitor, Department of Agriculture. /. The defendant, being a free agent, “ willfully ” violated the statute if it knew what it was doing and intended to do what it did. U. S. V. Fort Worth Pelt Ry. Co. (1908). Circular No. 11, Office of the Solicitor, Department of Agriculture. g. A carrier which receives stock after they have already been con- fined more than thirty-six consecutive hours, and delivers them at the next place where they can be unloaded for rest, food, and water with all reasonable dispatch, with the facilities is has for handling them, although it might have learned by inquiry that they had not been unloaded within the prescribed period, can not be held to have acted willfully in confining the cattle after it had received them, or to have participated in confining them any j)art of the time for which the penalty sought to be imposed was incurred. U. S. V. Sioux City Stock Yards Co., 102 FchI. 550 (1908). I” Judgment in the foregoing case was affirmed on appeal on the following grounds: ‘‘An opinion of the trial judge, setting forth the reasons for his decision in an action at law tried by a circuit court without the intervention of a jury, can notdte regarded as a- s])ecial finding within the meaning of Iv. 8. 049, TOO.” The court expressly refi-ained from expression u])on the jfrojKfsitions of laAv advanced bv the trial judge in support of his conclusion. Id., 107 Fed. 120. (C. C. A.,' 1909.)] I ■ I! I 16 th‘e ^twenty-eight hour law annotated. h. The word “willfully” in the statute can not be construed to denote evil intent. It is synonymous with “ voluntarily ” or “ inten- tionally.” U. S. V. Atchison, Topeka & Santa Fe R. Co., IGG Fed. IGO (1908). Circu- lar No. 4, Office of the Solicitor, Department of Agriculture. i. Failure to comply with the law is not willful if it is due to unavoidable causes. U. S. r. Oregon Short Line R. Co., IGO Fed. 52G (1908). Circular No. G, Office of the Solicitor, Department of Agriculture. j. In a complaint to recover penalties under the statute, an allega- tion that the defendant acted willfully is equivalent to an allegation that unloading within the prescribed time was not prevented by storm or by other accidental or unavoidable causes. U. S. V. Oregon Short Line R. Co., IGO Fed. 520 (1908). Circular No. G, Office of the Solicitor, Department of Agriculture. “KNOWINGLY AND WILLFULLY.” a. The words “ knowingly and willfully ” in the Twenty-eight Hour Law do not import an evil intent or motive. Lack of fore- sight and due diligence on the part of agents of a carrier engaged in the transportation of live stock is imputable to the carrier, and the consequent failure of agents, having knowledge of the facts concern- ing a particular shipment, to comply with the requirements of the law, is a willful failure, notwithstanding such precautions as the car- rier may have taken to insure strict compliance by its conductors, agents, and other persons. U. S. V. Atlantic Coast Line R. Co. (C. C. A., 1909.) Circular No. 21, Office of the Solicitor, Department of Agriculture. h. It cannot be said that a carrier “ knowingly and willfully ” violated the law when, at the time the cattle were loaded, there was a reasonable expectation that they could be carried within the period prescribed by the statute to a place where properly equipped pens were available for rest, feed, or water, but the cattle were actually unloaded at an intermediate point into pens which were not properly equipped within the sense of the statute on account of an unexpected situation or emergency, for loliich no fcndt is alleged against the carrier^ whereby it became imjiossible to convey the cattle within the prescribed period to the point where properly equipped pens had been provided by the carrier and were ordinarily used for the purpose. St. Louis & San Francisco R. Co. v. U. S., 1G9 Fed. G9. (C. C. A., 1909.) Circular No. 17, Office of the Solicitor, Department of Agriculture. c. To “ hnoicingly and v'illfully fail and negleet to feed, or irater said cattle ” is an offense only under the second section of the statute. The words are not sufficient to properly describe an offense under the first section. If the count, however, properly declares an offen e under that section, these words may be stricken out as surpluspT ' on motion, but if no motion is made therefor, they become immaterial matter. U. S. V. New York Central & Hudson River R. Co., 1G5 Fed. 833. (C. C. A., 1908.) Circular No. 15, Office of the Solicitor, Department of Agricul- ture. KNOWINGLY AND WILLFULLY. 17 d. AA^erment by a defendant railroad company that hordes were confined in violation of the statute, by reason of the “ oversight, forgetfulness, and unintentional neglect ” of its train dispaiciiers expressly negatiA’es the claim that failure to rest and feed and Avater the horses Avas not tlie resnlt of knoAvledge and Avillfnlness on the part of the company. Montana Central R. Co. v. U. S., 164 Fed. 400. (C. C. A., 1908.) Circular No. 12, Office of the Solicitor, Department of Agriculture. e. A carrier knoAvingly and Avillfnlly Afiolates the statute if it loads stock at one of its stations, Avhen, according to the schedule or ordi- narv running time of the train, it can not reach a place Avhere they may be unloaded and given rest, food, and Avater Avithin the pre- scribed time, and they are not in fact given such rest, food, and Avater. U. S. V. Sionx City Stock Yards Co., 162 Fed. 556 (1908). /. In an action to recover the penalty prescribed by the statute, proof is not required that the defendant confined the animals Avith a inaleAmlent purpose of cruelly torturing them, or of damaging the OAvner. The more reasonable interpretation of the Avords “ knoAvingly and Avillfully ” is that the penalty is incurred if the defendant knoAv- ingly and intentionally or purposely confined the stock beyond the tAventy-eight or thirty-six hour period. U. S. V. Sioux City Stock Yards Co., 162 Fed. 556 (1908). g. A raihvay company “ knoAvingly and Avillfully ” violates the TAventy-eight Hour LaAv if the conq^any, or its agents and servants Avho had charge of the shipments, kneAv, or by reasonable inquiry could liaA^e ascertained, the hour at Avhich the sheep Avere loaded and that they had not been unloaded up to the time the cars came into their joossession and it continues the confinement of the animals be- yond their prescribed period. U. S. V. Colorado & Southern R. Co. (1908). Circular No. 7, Office of the Solicitor, Department of Agriculture. li. A carrier knowingly and willf idly fails to comply Avith the re- quirements of the statute in respect to unloading, rest, and feeding, Avhen the agents and servants in charge of the train knoAvingly con- fine animals for a period longer than that prescribed by the statute, provided they are not prevented from unloading to give them rest, by storm or other accident or unaAmidable cause, Avhicli could not luiA^e been anticipated or avoided by the exercise of due diligence and foresight. U. S. V. Southern Pacific Co., 157 Fed. 459 (1907). Circular (unnumbered), Office of the Solicitor, De])artment of Agriculture. i. The failure of an employee of a carrier to inform other employees tliat live stock AA’ere in the cars does not relieve the company from lia- bility for having %oiUf\dly and knowingly failed to comply Avith the proM.uc.ns of the dhventy-eight Hour LaAA\ U. ?; Cleat N(»rthern R. (’o. (1907). Circular No. 1, Office of the Solic- itor, Depaitment of Agriculture. y. In an action to recover the penalty prescribed by the TAventy- eight Hour Iaiav, the United States must aA^er and establish by aflirm- ativ'O testimony the truth of the averment that the defendant did 18 THE TWENTY-EIGHT HOUE LAW ANNOTATED. “ knowingly and willfully ” fail to comply Avitli the provisions of the statute. U. S. V. Louisville & Nashville R. Co., 157 Fed. 979 (1907). k. A carrier which receives live stock from a connecting carrier after the animals haA^e been already confined beAT)nd the period pre- scribed by the TAventy-eight Hour LaAv, and continues their trans- jiortation for several hours more before unloading, is liable for negligence fer se. Whether the carrier knoAvingly and Avillfully fails to comply Avith the statute is a question for submission to the U. S. V. New York Central & Hudson River R. Co., 15G Fed. 249 (1907). “ KNOWINGLY AND WILLINGLY.” [The word “ icillfulhj ” appears in the original act of March 3, 1873, but when this statute was incorporated in the Revised Statutes (sec. 4388) the word '' icUlingJy '' was substituted therefor.] *A carrier must be deemed to hawe “ knowingly and willingly ” violated the laAv, unless he Avas preA^ented from unloading for rest, food, and Avater as required by laAV by a cause AA^hich could not have been avoided by due care. Accident to a train due to negligence does not excuse the carrier. Newport News & Mississippi Valley Co. v. U. S., G1 Fed. 488 (1894). PERIOD OF CONFINEMENT. a. The words “ confine the same ” mean no more than ordinary transportation of cattle in the ordinary railroad cars used for that purpose. A declaration in Avhich Avords having the same effect are substituted for these Avords of the statute is not open to objection, certainly after verdict, and the requirements of the laAV in this par- ticular are fully complied Avith. U. 8. V. NeAv York Central & Hudson River R. Co., 1G5 Fed. 833. (C. C. A., 1908.) Circular No. 15, Office of the Solicitor, Department of Agri- culture. See also Unit of Violation, infra. h. In estimating the period of confinement, time consumed in load- ing animals upon cars and in unloading them out of cars shall not be included as a part of the time during Avhich a carrier has the right to confine the animals under the statute. U. S. V. Southern Pacific Co., 157 Fed. 459 (1907). Circular (unnumbered). Office of Solicitor, Department of Agriculture. See also “ Sheep,” infra. c. A carrier Avhich accepts for transportation live stock Avhich has been already confined by a connecting carrier beyond the prescribed period, and continues to transport the animals for several additional hours before unloading the same, is ^R'iina facie guilty of a violation of the TAventy-eight Hour LaAv. U. S. V. New York Central & Hudson River R. Co., 15G Fed. 249. d. * The time during Avhich animals haA^e been confined without rest, Avater, or feed on connecting roads from Avhich they are received ACCIDENTAL OR UNAVOIDABLE CAUSES. 19 shall be iiieluded in estimating; whether the animals Iiave been con- fined beyond the period prescribed by the statute. U. S. V. Oregon Short Line R. Co., 160 Fed. 526 (1908), Circular No. 6, Office of Solicitor, Dept. Agricnltnre; U. S. v. Louisville & Nashville R. Co., 18 Fed. 480 (1883), XXV Op. Atty. Gen. 411 (1905), “ACCIDENTAL OR UNAVOIDABLE CAUSES.’^ a. The failure of a conductor to examine a waybill on which a shipment of calves is noted is negligence on the part of the defend- ant company, and if in consequence the calves are confined beyond the period j)ermitted by the Twenty-eight Hour Law the carrier is liable to the penalty thereby prescribed. It can not be contended that such failure was an “ accidental or unavoidable ” cause which could not have been anticipated or avoided by the exercise of due care and foresight. U. S. V. Atlantic Coast Line R. Co. (C. C. A., 1909.) Circular No. 21, Office of the Solicitor, Department of Agricnltnre. h. Great and unusual press of business, unexplained and of itself, is not an accidental or unavoidable cause which could not be antici- pated or avoided by the exercise of due diligence and foresight within the meaning of section 1 of the act. U. S. V. Union Pacific R. Co., 169 Fed. 65. (C. C. A., 1909.) Circular No. 14, Office of the Solicitor, Department of Agricnltnre. c. Failure to provide unloading stations, congested traffic condi- tions reasonably to be anticipated from past experiences, and break- downs en route, resulting from negligent operation or omission to furnish properly equi])ped and inspected engines and cars, are not accidents or imavoidahle causes which can not be anticipated and avoided by due diligence and foresight. U. S. V. Atchison, Topeka & Santa Fe R. Co., 166 Fed. 160 (1908). Circular No. 4, Office of the Solicitor, Department of Agriculture. d. To avail itself of a breakdown or Avreck as an excuse for non- compliance with the statute, the carrier must show that the circum- stances relied upon resulted from a cause Avhich could not have been avoided by the exercise of due diligence and foresight. U. S. V. Atchison, Topeka & Santa Fe R. Co., 166 Fed. 160 (1908). Circular No. 4, Office of the Solicitor, Department of Agricnltnre. e. Drunkenness of an employee of the defendant company and re- sulting failure to perform his duty is not such an accidental cause Avithin the meaning of the statute as Avill excuse noncompliance Avith its terms. U. S. V. Fort AVorth Belt R. Co. (1908). Circular No. 11, Office of the Solicitor, Department of Agricnltnre. /. It is not an excuse under the TAventy-eight Hour LaAV for the railroad comjiany to say that “ Ave ])ut our telegrajihic service to Avork and got the men, but the men called Avent to sleeji and Ave didn’t knoAv Avhere to find them.” U. S. V. Colorado A Soul hern R. Co. (1908). Circular No. 7, Office of the Solicitor, Department of Agriculture. 20 THE TWENTY-EIGHT HOUR LAW ANNOTATED. g. A complaint to recover penalties under the statute is not defec- tive for failure to allege that unloading was not prevented by storm or by other accidental or unavoidable causes, which conld not be anticipated or avoided by the exercise of due diligence and foresight. U. S. V. Oregon Short Line 11. Co., IGO Fed. 520 (1908). Circular No. 6, Office of the Solicitor, Department of Agricnltnre. h. In a complaint to recover penalties under the Twenty-eight Hour Law, an allegation that the defendant acted willfully is equivalent to an allegation that failure to unload within the prescribed time was not due to storm or other accidental or unavoidable causes. U. S. V. Oregon Short Line II. Co., 100 Fed. 520 (1908). Circular No. 0, Office of Solicitor, Department of Agriculture. i. If the confinement of stock for a longer period than the statutory time results from an accident caused by the negligence of the company transjiorting the stock, the transportation company is liable under the statute. U. S. V. Sonihern Pacific Co., 157 Fed. 4.59 (1907). Circular (imn umbered), Office of the Solicitor, De])artment of Agriculture. j. Mere press of business is no excuse for confining stock for a longer period than the time allowed by law. U. S. V. Southern Pacific Co., 157 Fed. 4.59 (1907). Circular (imnnmbered). Office of the Solicitor, Department of Agriculture. h. Sidetracking to allow passenger trains or fast freight trains the right of way is no excuse or defense for the violation of the law, if the meeting of such trains could have been anticipated at the time the stock train was dispatched from its loading point. U. S. V. Southern Pacific Co., 157 Fed. 459 (1907). Circular (imnmnbered) , Otfice of the Solicitor, Department of Agriculture. 1. * To avail itself of the excuse of storm, the carrier must show not only the fact of a storm, but that with due care he was prevented, as an unavoidable result of the storm, from complying with the law. No other accidental causes would be an excuse, unless the cause and effect are likewise unavoidable. Newport News Mississippi Valley Co. r. U. S., 01 Fed. 488 (1894). “ SHEEP.” a. The proviso of the statute “ that it shall not be required that sheep be unloaded in the nighttime, but where the time expires in the nighttime, in case of sheej), the same may be continued in transit to a suitable place for unloading, snl)iect to the aforesaid limitation of thirty-six hours,” is not fatally defective for uncertainty, the meaning being that in case of sheep, if the twenty-eight hour limit expires at night, the transit may be continued to a suitable place for unloading, without the consent of the owner or custodian, except that in no case shall the thirty-six hour limit be exceeded. Sontfiern Pacific Co. r. U. S., 171 Fed. 300. (C. C. A., 1909.) Circular No. 23, Office of the Solicitor, Dei)artment of Agriculture. h. In the case of sheep, when the twenty-eight hour limit expires in the night, the carrier may continue them without unloading until the ex])iration of thirty-six hours. U. S. V. Colorado Southern K. Co. (1908). Circular No. 7, Office of the Solicitor, Department of Agriculture. SHEEP IN THE NIGHTTIME UNLOADING. 21 G. The statute authorizes carriers to continue tlie conhneinent of sheep up to thirty-six hours, but no longer than thirty-six hours, even without the shipper’s request, when the twenty-eight hour period expires in the nighttime. It is the duty of the carrier to unload the sheep on the preceding day if the thirty-six hour limit will expire in the nighttime; at the expiration of the thirty-six hours sheep must be unloaded, even in the nighttime. U. S. V. Atchison, Topeka Santa Fe R. Co,, 166 Fed. 160 (1908). Cir- cular No. 4, Office of the Solicitor, Department of Agricnlture. (I. The limit of time prescribed for the confinement of all animals, except sheep, is twenty-eight hours, except that when there is a writ- ten request for an extension of time they may be confined for thirty- six hours. In the transportation of sheep, if the twenty-eight-liour limit expires in the nighttime, the sheep may be continued in transit to a suitable place for unloading, up to thirty-six hours, without re- quest, but not to exceed the limit of thirty-six hours, even if a reijuest to so exceed the latter limit be made by the owner or shipjier. When tlie limitation of thirty-six hours will expire in the nighttime, it is the duty of the carrier to unload the shipment of sheep before dark. U. S. V. Southern Pacific Co., 157 Fed. 459 (1907). Circular (iimiimibered), Office of the Solicitor, Department of Agriculture. “IN THE NIGHTTIME.” The words “ in the nighttime ’’ mean that period of time between the termination of daylight in the evening of one day and the earliest dawn of the next morning. U. S. v. Southern Pacific Co., 157 Fed. 459 (1907). Circular (umium- hered). Office of the Solicitor, Department of Agriculture. UNLOADING FOR REST, WATER, AND FEEDING. a. A declaration alleging that the defendant failed to unload tlie cattle “ for rest, water, or feeding ” is not open to objection on the ground alleged by the defendant that it would be sufficient if the cattle were unloaded for any purpose. U. S. V. New A"ork Central & Hudson River R, Co., 165 Fed. 833, (C. C. A., 1908.) Circular No. 15, Office of the Solicitor, Department of Agricul- ture. h. It is the duty of the carrier having possession of the cattle when the twenty-eight hour limit is reached to unload the animals for food, Avater, and rest. U. S. V. Oregon Short Line R. Co., 160 Fed. 528 (1908). Circular No. 6, Office of the Solicitor, Department of Agriculture. c. * It is immaterial, in an action to recover a penalty under the statute, Avhether failure to feed and water the stock is due to the ilefault of the shipper or the carrier. The act requires the shipper to feed and Avater the stock in the first instance, but if he fails the car- rier must do it for him. U. S. V. Louisville & Nashville R. Co., 18 Fed. 480 (1883). 22 THE TWENTY-EIGHT HOUK LAW ANNOTATED. “PROPERLY EQUIPPED PENS.” a. A railway company which voluntarily unloads cattle for rest, Avater, and. feeding- into pens Avhich are not properly equipped for the purpose knowingly and willfulh" Auolates the law. U. S. V. Sontbern Pacific Co. (1909). Circular No. 20, Office of the Solicitor, Department of Agriculture. 1}. Whether a pen is “ properly equipped ” Avithin the meaning of the TAventy-eight Hour La ay is a question of fact to be determined by the jury from the testimony offered in each case. U. S. V. Sontbern Pacific Co. (1909). Circular No. 20, Office of tbe Solicitor, Department of Agriculture. c. It is assumed, but not decided, that the statute prohibits not merely the confinement of cattle beyond the prescribed period Avithout rest, water, or food, but also unloading them into pens not properly equipped for rest, Avater, and feeding. St. Louis & San Francisco R. Co. v. U. S., 169 Fed. 69. (C. C. A., 1909.) Circular No. 17, Office of tbe Solicitor, Department of Agriculture. d. It is the duty of a carrier engaged in the interstate transporta- tion of animals to provide a sufficient number of suitably equipped corrals or stock yards at AAdiich to unload stock, and in AAdiich said stock may hai^e suitable care, food, AA’ater, and rest. U. S. v. Sontbern I'acific Co., 157 Fed. 459 (1907). Circular (unnumbered). Office of tbe Solicitor, Department of Agriculture. UNIT OF VIOLATION. a. Where several consignments of live stock, consigned to one con- signee, are coiiA’eyed uiion the same train, the unit in case of Auolation of the act is the indiAudual shipment and not the carload. Sontbern Pacific Co. v. U. S., 171 Fed. 360. (C. C. A., 1909.) Circular No. 23, Office of tbe Solicitor, Department of Agriculture. 1 ). Where a train contains shipments by tAvo different consignors, each shipment not transported in conformitA^ Avith the statute consti- tutes a separate offense. U. S. V. New York, Chicago & St. Louis 11. Co., 168 Fed. 699. (C. C. A., 1909.) Circular No. 16, Office of tbe Solicitor, Department of Agriculture. c. Where there are seAxral shipments of stock handled in one train, there are as many offenses against the statute as there are shipments confined beyond the prescribed period. U. S. V. Atcbisou, Topeka & Santa Fe R. Co., 166 Fed. 160 (1908). Circular No. 4, Office of tbe Solicitor, Department of Agriculture. d. When several consignments of cattle are transported on one or more trains, each consignment must be considered a unit in imposing the penalty. U. S. V. New York Central & Hudson River R. Co., 165 Fed. 833. (C. C. A., 1908.) Circular No. 15, Office of the Solicitor, Department of Agriculture. e. In an action to recoATr the statutory penalty for carrying stock in continuous transportation for more than tAA^enty-eight hours Avitli- UNIT OF VIOLATION. 23 out rest, water, and feed, the shipment, and not the car or trainload, is the integer for the iinjiosition of penalties. U. S. V. Oregon Railway & NaAigation Co., 163 Fed. 642 (1908). Circular No. 8, Office of the Solicitor, Department of Agriculture. /. A single penalty is incurred for confining live stock beyond the period of twenty-eight or thirty-six hours, and the time of its confine- ment beyond that period is not material, unless it shall be for another period of tAA^enty-eight or thirty-six hours, when it might be claimed that another penalty had been incurred. U. S. V. Sioux City Stock Yards Co., 162 Fed. 556 (1908). g. Where several shipments of live stock belonging to ditferent owners are contained in the same train and the carrier fails to unload as prescribed by the statute, a penalty is recoverable for each ship- ment. U. S. V. Baltimore «& Ohio SoutliAA’estern R. Co., 159 Fed. 33. (C. C. A., 1908.) Circular No. 3, Office of the Solicitor, Dei)artmeiit of Agriculture. li. Each independent shipment or consignment of stock is the basis for determining whether a violation has been committed, and when a particular train is made up of several consignments of stock of vari- ous kinds from ditferent consignors to the same or different consignees, and the entire trainload of stock is detained longer than the time pre- scribed by the statute, there are as mau}^ violations of the law as there are various shipments making up the aforesaid train. U. S. V. Southern Pacific Co., 157 Fed. 4.59 (1907). Circular (unnumbered), Office of the Solicitor, Department of Agriculture. i. The time of confinement of a shipment of stock is to be reckoned from the completion of the loading at any given point to the com- mencement of the unloading of the stock at the next point along the route; and there are as many Anolations of the law as the periods of confinement betAveen loading and tlie next unloading are in excess of the statutory time prescribed for such confinement betAveen the point of original departure and the final destination of the shipment, eA^en though they relate to the same stock or the same train. U. S. f. Southern Pacific Co., 157 Fed. 459 (1907). Circular (unnumbered). Office of the Solicitor, Department of Agriculture. j. * Confinement of a trainload of cattle for a longer period than tAventy-eight hours Avithout unloading, Avhen the cars constituted one train, and all the cattle Avere shijtped by the same consignor to the same consignee at the same time, is a single offense. The unlaAvful confinement of each carload can not be held to constitute a separate offense, Avhen the different cars make one train, and the shipment of cattle is one shipment. U. S. V. St. Louis & San Francisco R. Co., 107 Fed. 870 (1901). k. * The unhiAvful confinement of each animal in a trainload cannot be held to constitute a separate offense, dfiie amount of the penalty assessed must be Avithin the limits fixed by tlie statute (secs. 4386-4390 R. S.), that is, “ not less than one hundred nor more than fiA^e hundred dollars.” U. S. V. Boston & Albany R. Co., 15 Fed. 209 (1883), 24 THE TWENTY-EIGHT HOUR LAW ANNOTATED. ASSESSMENT OF THE PENALTY. a. The statute does not definitely fix the penalty, but prescribes for each violation a sum of not less than one hundred nor more than five hundred dollars. Determination of the amount which may be as- sessed in a particular case is a matter of discretion to be exercised by the trial court. U. S. V. Atlantic Coast lane li. Co. (C. C. A.. 1909.) Circular No. 21, Office of tlie Solicitor, Department of Agricnltnre. h. In an action to recover a penalty under the Twenty-eight Hour Latv, if the verdict is found against the defendant, it is necessary for the jury to assess the penalty within the limits prescribed by the statute. U. S. V. Sontliern Pacific Co. (1909). Circular No. 20, Office of the Solic- itor. Department of Agricnltnre. c. It is for the jury, if its ATrdict is for the United States, to assess the penalty tvithin the limits prescribed bi" the statute. U. S. r. Fort Worth Belt By. Co. (1908). Circular No. 11, Office of the Solicitor, Department of Agricnltnre. d. In an action to recover a penalty under the statute, it is for the jury to determine the facts, and if the verdict is against the defendant, to assess the penalty under the limits prescribed in the law. U. S. r. Colorado & Sontliern By. Co. (1908). Circular No. 7, Office of the Solicitor, Department of Agricnltnre. e. After verdict in favor of the Government, the duty of fixing the amount of the penalty devolves upon the court. U. S. V. Southern Pacific Co., 162 Fed. 412 (1908). Circular No. 9, Office of the Solicitor, Department of Agricnltnre. /. Whether the law has been violated is a question of fact to be determined by the jury, and if the verdict is in favor of the United States and against the defendant, it is for the court to determine the amount of the penalty within the limits of the statute. U. S. V. Southern Pacific Co., 157 Fed. 459 (1907). Circular (nnnnmbered). Office of the Solicitor, Department of Agricnltnre. g. *After verdict for the plaintift', the amount of the penalty is to be determined by the court, within the limits prescribed by the’ statute (secs. 4e38G-4390 R. S.). U. S. V. Boston & Albany B. Co., 15 Fed. 209 (1883). h. ^ The plaintiff can sue only for the penalty prescribed by the statute (secs. 4386—1390 R. S.). U. S. V. Boston & Albany B. Co., 15 Fed. 209 (1883). EVIDENCE. P.UIfDEN OF PROOF. a. The burden is on the Government to establish by a preponderance of the evidence the acts charged as constituting a violation of the Tiventy-eight Hour Law. U. S. V. Southern Pacific Co. (1909). Circnlar No. 20, Office of the Solicitor, Dei>artment of Agricnltnre. EVIDENCE. 25 h. The statute provides a penalty to be recovered hy civil action. It must be presumed that the usual incidents of all civil actions at- tach,, one of which is that proof by a reasonable freponderance of the evidence is sufficient. U. S. V. Soiitliern Pacific Co., 162 Fed. 412 (1908). Circular No. 9, Office of the Solicitor, Department of Agriculture. c. A suit under the statute is to be regarded as merely a civil pro- ceeding.^ so far as the ordinary rules of pleading and proof are con- cerned. The United States are bound to support their case by only a jireponderance of the evidence. U. S. r. New York Central & Hudson Fiver R. Co., 165 Fed. 833. (C. C. A., 1908.) Circular No. 15, Office of the Solicitor, Department of Agriculture. d. The burden is on the defendant to prove “ other accidental or unavoidable causes.” U. S. V. New York Central & Hudson River R. Co., 165 Fed. 833. (C. C. A., 1908.) Circular No. 15, Office of the Solicitor, Department of Agriculture. e. The burden is on the Government to prove its charge against the defendant by a preponderance or greater weight of the evidence, but not beyond a reasonable doubt. U. S. V. Fort Worth Kelt R. Co. (1908). Circular No. 11, Office of the Solicitor, Department of Agriculture. /. A suit under the Twenty-eight Hour Law is not a criminal case, and the Government is not held to proof beyond a reasonable doubt, but by a preponderance or greater weight of the evidence. U. S. V. Colorado & Southern R. Co. (1908). Circular No. 7, Office of the Solicitor, Department of Agriculture. g. The burden of proof is not on the Government to show that the defendant w^as not prevented from unloading within the time pre- scribed, by storm or other accidental or unavoidable cause. U. S. V. Oregon Short Line R. Co., 160 Fed. 526 (1908). Circular No. 6, Office of the Solicitor, Department of Agriculture. h. The Government is not required to establish the acts constitut- ing a violation of the statute beyond all reasonable doubt, but simply by a preponderance of the evidence. U. S. V. Southern Pacific Co., 157 Fed. 459 (1907). Circular (unnum- bered), Office of the Solicitor, Department of Agriculture. i. The burden of proof is on the United States to establish every fact constituting an oh'ense under the statute to the exclusion of a reasoncdjle doubt. U. S. V. Louisville & Nashville R. Co., 157 Fed. 979 (1907). PRESUMPTIONS. j. There is no presumption that cattle which have been trans- ported by preceding carriers for twenty-eight or thirty-six hours have not been unloaded, fed, and watered within the required time. The presumption is that the preceding carrier had performed its duty under the law. U. S. V. Sioux City Stock Yards Co., 162 Fed. 556 (1908). 2C) the twenty-eight hour law annotated. h. There is no presumption in a prosecution under the statute, either of law or fact, that cattle have not been taken out, rested, Avatered, and fed by the OAAuier or previous carrier, nor that the last carrier has received information of how long the cattle have been confined, nor how they have been treated. The burden is on the Government to establish these facts affirmatively beyond reasonable doubt. U. S. V. Louisville & Nashville R. Co., 157 Feci. 979 (1907). RULE OF CONSTRUCTION. а. The maxims and rules of interpretation require that we have regard to all provisions of the statute, and, if possible, attribute to the language of each a meaning which will permit other provisions to have their due effect. U. S. v. Baltimore & Ohio Southwestern R. Co., 159 Fed. 33. (C. C. A., 19