CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT
White, McKenna, Holmes, Day, Lurton, Hughes, Van Devanter, Lamar, Pitney
MR. JUSTICE HOLMES delivered the opinion of the court.
This case brings up two suits that were consolidated and tried together, both being suits for penalties under the Hours of Service Act of March 4, 1907, c. 2939, 34 Stat. 1415, for keeping employes on duty for more than sixteen consecutive hours. The main question is whether, when several persons thus are kept beyond the proper time by reason of the same delay of a train, a separate penalty is incurred for each or only one for all. The Circuit Court of Appeals decided for Government without discussion.
The petitioner cites many cases in favor of the proposition that generally, when one act has several consequences that the law seeks to prevent, the liability is attached to the act, and is but one. It argues that the delay of the train was such an act and that the principle, which is a very old one, applies. Baltimore & Ohio Southwestern R. R. Co. v. United States, 220 U.S. 94. But unless the statute requires a different view, to call the delay of the train the act that produced the wrong, is to beg the question. See Memphis & Charleston R.R. Co. v. Reeves, 10 Wall. 176. Denny v. New York Central R.R. Co., 13 Gray, 481. The statute was not violated by the delay. That may have made keeping the men overtime more likely, but was not in itself wrongful conduct quoad hoc. The wrongful act was keeping an employe at work overtime, and that act was distinct as to each employe so kept. Without stopping to consider whether this argument would be met by the proviso declaring a 'delay' in certain cases not to be within the statute, it is enough to observe that there is nothing to hinder making each consequence a separate cause of action or offence, if by its proper construction the law does so., see Flemister v. United States, 207 U.S. 372,
; so that the real question is simply what the statute means. The statute makes the carrier who permits 'any employe' to remain on duty in violation of its terms, liable to a penalty 'for each and every violation.' The implication of these words cannot be made much plainer by argument. But it may be observed as was said by the Government that as towards the public every overworked man presents a distinct danger, and as towards the employes each case of course is distinct. United States v. St. Louis Southwestern Ry. Co., 184 Fed. Rep. 28; People v. Spencer, 201 N.Y. 105, 111.
One of the delays was while the engine was sent off for water and repairs. In the meantime the men were waiting, doing nothing. It is argued that they were not on duty during this period and that if it be deducted, they were not kept more than sixteen hours. But they were under orders, liable to be called upon at any moment, and not at liberty to go away. They were none the less on duty when inactive. Their duty was to stand and wait. United States v. Chicago, M. & P.S. Ry. Co., 197 Fed. Rep. 624, 628; United States v. Denver & R.G.R. Co., 197 Fed. Rep. 629.
It is urged that in one case the delay was the result of a cause, a defective injector, that was not known to the carrier, and could not have been foreseen when the employes left a terminal, and that therefore by the proviso in § 3 the act does not apply. But the question was raised only by a request to direct a verdict for the defendant and the trouble might been found to be due to the scarcity and bad quality of the water, which was well known. See Gleeson v. Virginia Midland Ry. Co., 140 U.S. 435. The Majestic, 166 U.S. 375, 386.
The statute provides for a penalty not to exceed five hundred dollars. It is argued that the amount of the penalty was for the jury, the proceeding being a civil suit. But the penalty is a deterrent not compensation. The
amount is not measured by the harm to the employes but by the fault of the carrier, and being punitive, rightly was determined by the judge. United States v. Atlantic Coast Line R. Co., 173 Fed. Rep. 764, 771. Atchison, ...