validity. Congress had the power to use the general description, and in the legal sense there was no uncertainty. Congress by an appropriate description of an exceptional class had established a standard with respect to which cases that arise must be adjudged. The court said the broad scope of the proviso in section three even if it was construed to include everything that could be in cluded in the emergency clause in section two would not be merely a duplication which would not invalidate the act.

8 544. The Interstate Commerce Commission had authority to require reports. In the same case the court said that the authority to require the secretary or other officers of the carriers subject to this act to make monthly reports under oath showing the instances where employes subject to the act had rendered excess services, and giving the cause and explanatory facts, if any, or where there had been no excess service to make the separate oath to that effect, was conferred upon the Interstate Commerce Commission by the provision of section four of the act; in connection with the amendments of the Interstate Commerce Act of June 18, 1910, authorizing the commission to require the carriers to file periodical or special reports under oath concerning any matter upon which it is by law authorized or required to keep itself informed or which it is required to enforce.

§ 545. No privilege to a corporation or corporation officers against self-incrimination.-In the same case it was ruled that there was no violation of the constitutional provision against unreasonable searches and seizures in the requirements of the reports under this act, and neither the corporation subject to the act nor the officers of the corporation could claim a privilege against self-incrimination to justify refusal to make such reports. The transactions to which the required reports related were corporate transactions subject to the regulating power of congress and the officers of the corporation are bound by the corporate obligation, and could not claim a personal privilege in hostility to the requirement.

40

THE TWENTY-EIGHT HOUR LIVE STOCK TRANSPORTATION LAW.

§ 546. The twenty-eight hour act.

547. Delivery to connecting carrier.

548. Accidental or unavoidable causes defined.

549. Violation of rules and regulations of company no defense. 550. Press of business.

551. Requested confinement-Question for jury.

552. Burden of proof.

553. The government is entitled to writ of error.

554. Pleadings.

555. "Wilfully" construed.

556. Who subject to the act.

557. Place of bringing suits.

558. Procedure-Unit of offense.

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 fortythree hundred and ninety of the United States revised statutes.

§ 546. The twenty-eight hour live stock transportation law. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled. That no railroad, express company, car company, common carrier other than by water, or the receiver, trustee, or lessee of any of them, whose road forms any part of a line of road over which 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 vessels carrying or transporting cattle, sheep, swine, 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 any description for a period longer than twenty-eight 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 storm or by other accidental or unavoidable causes which cannot be anticipated or avoided by the exercise of due diligence and foresight: 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: 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 custody thereof, or in case of his default in so doing, then by the railroad, express company, car company, common carrier other than by water, or the receiver, trustee, or lessee or any of them, or by the owners or masters of boats or vessels transporting the same, at the reasonable expense of the owner or person in custody thereof, and such railroad, express company, car company, common carrier other than by water, 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, when 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 owner or shipper of animals from furnishing food therefor, if he so desires.

SEC. 3. That any railroad, express company, car company, common carrier other than by water, or the receiver, trustee, or lessee, of any of them, or the master or owner of any steam, sailing, or other vessel who knowingly and willfully 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 hundred nor more than five hundred dollars: Provided: That when animals are carried in cars, boats, or other vessels in which they can and do have proper food, water, 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 civil action in the name of the United States in the circuit or district court holden within the district where the violation may have been committed or the person or corporation resides or carriers on business; and it shall be the duty of

the United States attorneys to prosecute all violations of this Act reported by the Secretary of Agriculture, or which come to their notice or knowledge by other means.

SEC. 5. That sections forty-three hundred and eighty-six, fortythree hundred and eighty-seven, forty-three hundred and eightyeight, 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.

§ 547. Delivery to connecting carrier.-It was held in the district court, northern district California in U. S. v. Southern Pac. R. Co., 157 Fed. 459 (1907), that a railroad company which delivers its cars containing such stock to a connecting carrier without keeping the same confined longer than a period of twenty-eight hours is relieved from responsibility. See also M. K. & T. R. Co. v. U. S., 178 Fed. 15 (1910).

8 548. Accidental or unavoidable causes defined.-"An accidental or unavoidable cause which cannot be anticipated or avoided by the exercise of due diligence and foresight" is one which cannot be avoided by that degree of prudence, foresight, care and caution which the law requires of every one under the circumstances of the particular case, and which would have been exercised by a man of ordinary prudence under such circumstances. United States v. Southern Pacific R. Co., 178 Fed. 15. On the other hand in Montana Cent. R. Co. v. U. S., 164 Fed. 400 (1908), it was held that the twenty-eight hour law is not a criminal statute and the violation was not excused by oversight or unintentional neglect.

As to the accidental and unavoidable that come within the section of the statute, see U. S. v. A., T. & S. F. R. Co., 166 Fed. 160 (1908), that a company must know how long a connecting carrier had kept the animals without food or water and must learn such fact at its peril. U. S. v. St. Joe Stock Yds. Co., 181 Fed. 625 (1911).

§ 549. Violation of rules and regulation of company no defense. In U. S. v. Atlantic Coast Line, 173 Fed. 764, C. C. A. 4th Cir. 1909, the fact that the company had made rules and regulations requiring the employes to comply with the act and

that its violation was the act of the employe in disobeying the rules was no defense.

§ 550. Press of business.-Nor does press of business excuse a violation of the Act. U. S. v. Union Pacific R. Co., 169 Fed. 65, 1909.

551. Requested confinement:-Question for jury.-In U. S. v. Terminal Stock Yards Co., 172 Fed. 452 (1909), it was held that the first thirty-six hour confinement could not be counted against the carrier if requested by the owner. And the period beyond the twenty-eight hours (or thirty-six hours if requested). See U. S. v. Sioux City, etc., Co., 162 Fed. 556. In M. K. & T. R. Co. v. U. S., 178 Fed. 15, 8th Cir. 1910, it was held that the question of conformity to the request of extension was for the court and not the jury because a written instrument was involved.

§ 552. Burden of proof.-The government is required to establish its case only by a preponderance of evidence and each independent shipment is a basis for a separate charge. U. S. v. Southern Pacific, 157 Fed. 459; M. K. & T. R. Co. v. U. S., 178 Fed. 15, eighth circuit; U. S. v. N. Y. & C. R. Co., 168 Fed. 699, C. C. A. second circuit; U. S. v. B. & O. S. W. R. Co., 159 Fed. 33, C. C. A. sixth circuit; U. S. v. Oregon & R. N. Co., 163 Fed. 642. On the other hand it was held in the district court of Kentucky (U. S. v. L. & N. R. Co., 165 Fed. 936), that the twentyeight hour law is a criminal statute and although the action is civil in form the defendant is presumed innocent until proven guilty beyond a reasonable doubt. As to burden of proof, see U. S. v. Oregon Short Line, 160 Fed. 526.

§ 553. The government is entitled to writ of error.-And the government is entitled to a writ of error. U. S. v. N. Y. C., etc., Co., 168 Fed. 699, second circuit; U. S. v. B. & O. S. W. R. Co., 159 Fed. 33, C. C. A. sixth circuit.

§ 554. Pleadings.-As to the necessity of pleading the exceptions of the statute see N. Y. & C. H. R. Co. v. U. S., 165 Fed.