Solicitor General Lehmann for plaintiff in error. [222 U.S. 8, 9] Messrs. George Hoadly, A. W. Goldsmith, Edward Colston, and Judson Harmon for defendant in error.
Mr. Justice McKenna delivered the opinion of the court:
The defendant in error, called herein defendant, was indicted for violations of the act of March 3, 1905 (33 Stat. at L. 1264, chap. 1496, U. S. Comp. Stat. Supp. 1909, p. 1185), entitled, 'An Act to Enable the Secretary of Agriculture to Establish and Maintain Quarantine Districts, to Permit and Regulate the Movement of Cattle and Other Live Stock Therefrom, and for Other Purposes.'
Defendant entered a plea of not guilty, but subsequently the court quashed the indictment, following the ruling in certain other cases, and this writ of error was sued out to determine the validity of the ruling.
The efficient words of the statute are in 2 (presently to be given), and prohibit receiving stock for transportation or to transport it from a quarantined state into any other state or territory. A summary of the indictment is as follows:
The Secretary of Agriculture, in pursuance of the act of Congress, having determined the fact that a contagious and communicable disease, known as scabies, existed among the sheep in the state of Kentucky, as required by said act, promulgated an order and regulation establishing a quarantine in Kentucky, and gave public notice thereof, as required by the statute. And the indictment charges that he gave notice of the quarantine and of the rules and regulations established by him by sending printed copies of the same to defendant, and that the receipt of notice was acknowledged by the general manager.
There were three separate shipments (each of which is made a count in the indictment), of sheep from Kentucky, upon different dates, and the cars containing the sheep were delivered to the Cincinnati, New Orleans, & Texas Pacific Railway Company, and transported by it over its line of railroad to a point within the city of Cincinnati, [222 U.S. 8, 12] state of Ohio, and were delivered at such point to defendant, and by it conveyed over its line of railroad to the Union Stock Yards in Cincinnati, 'being a place,' as the indictment avers, 'en route to the destination' of the shipments.
The cars in which the shipments were made did not have upon their sides, or at all, placards bearing the words 'Dipped scabby sheep,' or the words, 'Exposed sheep for slaughter,' as provided in the orders and regulations of the Secretary of Agriculture, nor did the waybills, conductors' manifests, memoranda, and bills of lading have written or stamped upon their face those words, as was also required by such orders and regulations.
Section 1 of the act of Congress authorizes the Secretary of Agriculture to quarantine any state or territory, or any portion of any state or territory, when he shall determine the fact that there exists therein live stock affected with any contagious, infectious, or communicable disease, and of such quarantine he is directed to publish notice.
Section 2 forbids railroad companies and others engaged in transportation to 'receive for transportation or transport . . . from the quarantined portion of any state or territory or the District of Columbia, into any other state or territory or the District of Columbia, any cattle or other live stock.' The statute also forbids the delivery for transportation, or the driving on foot or transporting by private conveyance, of such stock 'from a quarantined state or territory or the District of Columbia,' or from any portion of either, 'into any other state or territory or the District of Columbia.' And these words are repeated in other sections as descriptive of the transportation to which the statute applies.
An offender against the statute is declared ( 6) to be guilty of a misdemeanor, and punishable by a fine or imprisonment, or by both.
The question in the case is, What did Congress intend [222 U.S. 8, 13] by the words we have italicized? Did the defendant receive the scheep for transportation from Kentucky, the quarantined state, for delivery in a state, by receiving them in Ohio for delivery in Ohio?
The government urges an answer in the affirmative, and contends that not only an initial carrier, but a connecting carrier, though it receive the stock in a state other than the quarantined state (in the case at bar, Ohio), transports, within the meaning of the statute, stock 'from' one state 'into' another. The argument is that necessarily such connecting carrier is instrumental in the transportation of the stock from the place of shipment to its ultimate destination, and therefore within the reason and purpose of the law.
The contention is untenable. To receive a thing in Ohio is not receiving it in Kentucky, nor is transporting it in Hoio transporting it from Kentucky into Ohio. To sustain the indictment, therefore, we must disregard the plain and only direct signification of the words of the statute. Such extreme liberty with the words of a penal statute may not be taken. We are not unmindful that our function is to seek the intention of the lawmaker, and that illustrations may be found where the literal meaning of words has been extended beyond their absolute sense. But the general rule is that penal statutes must be strictly construed. It is a familiar rule and need not be illustrated. The words of the statute, certainly when they have a sensible meaning and a definite and unmistakable signification, as the words of the statute under review have, mark its extent. We do not mean to say that ambiguity in words may not be resolved by the clear purpose of the statute.
If, however, there be no ambiguity, the words of the statute are the measure of its meaning. If there be ambiguity, the character of the statute determines for a strict or liberal construction. A criminal statute is strictly [222 U.S. 8, 14] construed. Courts are no inclined to make 'constructive crimes.' We therefore might have to decide against the indictment, even if there were more ambiguity in the statute under review than we find in it. It manifests care and a studied purpose to define the extent of the quarantine and of what shall constitute violations of it. Within its limits there shall be no delivery of stock for transportation beyond them 'into any other state or territory' by public for private conveyance or by driving. There is no obscurity whatever. A sensible, definite meaning is expressed. There must be a delivery for or a receiving for transportation 'from the quarantined portion of any state or territory . . . into any other state or territory. . . .' That reception and that transportation are the elements of the crime and must exist to constitute it. None of these elements are charged against the defendant. It did not receive the sheep for transportation in Kentucky, or transport them 'from' Kentucky 'into' Ohio. It received them in Ohio and transported them in Ohio, and the statute, thus construed, adapts the remedy to the mischief. In other words, if the breaking of quarantine is prevented, the purpose of the statute is fulfilled without subjecting to criminal accusation and penalties distant carriers, who, it may be, are ignorant of the existence of the quarantine; and ignorant they may be, for the statute ( 1) requires the Secretary of Agriculture to give notice of the establishment of quarantine only to the 'transportation companies doing business in or through' the quarantined state. It would be strange indeed if the statute intends to confound unwilful with wilful acts by uniting in criminality and penalties the companies to which no notice of quarantine is required to be given with those to which notice is required.
We do not, of course, mean to say that the movement of sheep in Ohio did not tend to spread the contagion, but it is certain there could have been no movement of [222 U.S. 8, 15] them in Ohio if they had not been transported 'from' Kentucky 'into' Ohio.
In United States v. El Paso & N. E. R. Co. 178 Fed. 846, and in United States v. Chicago, B. & Q. R. Co. 181 Fed. 882, the same construction was given to the statute that we have given it. Also by the circuit court of appeals of the eighth circuit in St. Louis. St. Louis Merchants' Bridge Terminal R. Co. v. United States, 188 Fed. 191. In United States v. Southern R. Co. (C. C. D. S. C.) 187 Fed. 209, a contrary ruling was made, and a connecting carrier which received stock outside of the limits of the quarantined state was held to be liable.