Mr. Justice Van Orsdel
delivered the opinion of the Court:
It is essential to examine the various provisions of the statute composing what may be termed the gas-inspection system of the District of Columbia. By the act of Congress of June 23, 1874 (18 Stat. at L. 277, chap. 480, 1 U. S. Rev. Stat. Supp. 52), there was created the office of gas inspector, who was to be appointed by the President, by and with the advice and consent of the Senate. An assistant inspector was also provided for. Provision -was also made “that the com[470]*470pany, person, or persons furnishing the gas may, if they see fit, on each occasion of the testing of the gas by the inspector or assistant inspector, he represented by some officer, but such officer shall not interfere in the testing.” The inspector was required to keep a record of each inspection, giving the illuminating power and purity, which record should be open to the public. It was also provided that “a copy of the daily inspection shall be furnished the following day to the company, person, or persons furnishing the gas, Saturday’s inspection to be furnished on Monday.” The inspector was also required, upon request, to furnish, for publication, full monthly reports to any daily paper printed in the city of Washington.
By the act of March 3, 1893 (27 Stat. at L. 543, chap. 199, 2 U. S. Bev. Stat. Supp. 110), which was amendatory of the act of 1874, it was provided that daily inspections “shall hereafter, be ma.de at any time after twelve o’clock noon and before twelve. o’clock midnight, in the discretion of the inspector of gas and meters.” By the same act it was provided that two laboratories should be established and maintained by the Washington Gas Light Company and one by the Georgetown Gas Light Company, in which the inspections 'and tests should be made.
By the act of Congress of June 26, 1896 (29 Stat. at L. 251, chap. 335, 2 U. S. Rev. Stat. Supp. 501), it was provided., with reference, to the purity of gas, as follows: “And such gas shall not contain more than twenty grains of sulphur in ahy form in one hundred cubic feet, nor more than five grains of ammonia in any form in One hundred cubic feet, and shall be free of the impurity known as ‘sulphureted hydrogen.’ ” By the same act was provided a method for testing the candle power.“by the Bunsen photometer, using the Bray slit union burner numbered seven, consuming five cubic feet of gas p hour.”
By the act of Congress of March 3, 1905 (33 Stat. at L. 896, chap. 1406), also amendatory of the general act of 1874, it was provided that “hereafter the illuminating power of gas furnished by any gas-lighting company, person, or persons in the District of Columbia shall be equal to twenty-two candles.”
[471]*471The original act of 1874 contains the clause under which this action was brought. It is as follows: “When the illuminating gas supplied by any company, person, or persons in the District of Columbia shall at any one time be of less illuminating power or of less purity than according to the standard just heretofore given, it shall be so reported by the inspector of gas and meters to the company, person, or persons supplying the same, who shall be subject to a penalty of one hundred dollars, to be recovered before the proper tribunal, and paid into the treasury of the District of Columbia, aforesaid, for each and every day during which such violation shall continue: Provided, however, That if it shall appear that such deviation from the above-named standards could not have been prevented by ordinary care and prudence, but was occasioned by some unavoidable cause, then the said penalty shall not be enforced.”
It is sought by the plaintiff to apply what seems to us an unwarranted and harsh construction to the’ various provisions of the inspection law. It is insisted that each default constitutes a separate offense independent of .the term of its duration, but that not more than one penalty can be imposed for any number of defaults occurring during one day. On the other hand, defendant contends that before the penalty attaches, the default must be shown to have continued uninterruptedly for the full period of one day after notice given and reasonable time accorded the company to remedy it.
We are not impressed with either contention. The statute was not intended to create a source of revenue from the collection of penalties, but to insure the people of the District of Columbia good service from the companies furnishing gas. To this end was the provision in the penalty clause inserted that, when the inspector discovered a defect, notice should be given the company. Why give this notice ? In order that the defect could speedily be remedied. Why grant the privilege of correcting the defect ? Because of the great difficulty, as disclosed by the evidence in this case, of maintaining uniform lighting power and purity in the manufacture of gas. Defects [472]*472will arise from sources which, the most skilled in the art cannot detect. We must attribute to Congress knowledge of this fact; hence, it could not have been intended to hold defendant liable criminally for failure to prevent the happening of an event which human skill could not foresee. While defects in illuminating power may be speedily corrected after discovery, it appears from the testimony of the inspector that it takes probably ten hours to restore purity in the gas after the impurity is first detected. We must also impute knowledge of this fact to Congress. This is a potent reason for the nonenforcement-of the strict rule insisted upon by counsel for plaintiff.
At common law a single continuous offense could not be divided into several separate offenses; but in this country such statutes are common. A continuous offense may be divided into several separate offenses by attaching the penalty for each certain period of time during which the offense continues. It usually occurs in cases where the penalty is imposed upon the accused for failure to abate the thing condemned by law for a fixed period of time, and for each succeeding like period.-
The penalty- clause in the act before us conveys the intent of Congress with reasonable clearness. It requires the inspector, when he discovers “at any one time” a defect, either in the illuminating power or purity of the gas, to report it to the company supplying the same. It then provides that the company shall be subject to a penalty of $100 for every day during which the default shall continue. In other words, we think that, after notice, the penalty immediately begins to run; and, if the defect be permitted to extend for the full period of a day, liability for one penalty will attach, and the company will be liable for a similar penalty for each succeeding day during which it permits the default to continue.
This brings us to the question of how the continuous default of the company must be ascertained. Manifestly the inspector and his assistant are not required to stay in the three laboratories, in only two of which they can be present at one time, and continue the test for the full period of twenty-four hours, or so long as the default continues. In fact, they are only [473]*473permitted by law to enter tbe laboratories during twelve hours of the day. It follows, therefore, that a continuous test is not possible, nor do we think it is required.
Free access — add to your briefcase to read the full text and ask questions with AI
Mr. Justice Van Orsdel
delivered the opinion of the Court:
It is essential to examine the various provisions of the statute composing what may be termed the gas-inspection system of the District of Columbia. By the act of Congress of June 23, 1874 (18 Stat. at L. 277, chap. 480, 1 U. S. Rev. Stat. Supp. 52), there was created the office of gas inspector, who was to be appointed by the President, by and with the advice and consent of the Senate. An assistant inspector was also provided for. Provision -was also made “that the com[470]*470pany, person, or persons furnishing the gas may, if they see fit, on each occasion of the testing of the gas by the inspector or assistant inspector, he represented by some officer, but such officer shall not interfere in the testing.” The inspector was required to keep a record of each inspection, giving the illuminating power and purity, which record should be open to the public. It was also provided that “a copy of the daily inspection shall be furnished the following day to the company, person, or persons furnishing the gas, Saturday’s inspection to be furnished on Monday.” The inspector was also required, upon request, to furnish, for publication, full monthly reports to any daily paper printed in the city of Washington.
By the act of March 3, 1893 (27 Stat. at L. 543, chap. 199, 2 U. S. Bev. Stat. Supp. 110), which was amendatory of the act of 1874, it was provided that daily inspections “shall hereafter, be ma.de at any time after twelve o’clock noon and before twelve. o’clock midnight, in the discretion of the inspector of gas and meters.” By the same act it was provided that two laboratories should be established and maintained by the Washington Gas Light Company and one by the Georgetown Gas Light Company, in which the inspections 'and tests should be made.
By the act of Congress of June 26, 1896 (29 Stat. at L. 251, chap. 335, 2 U. S. Rev. Stat. Supp. 501), it was provided., with reference, to the purity of gas, as follows: “And such gas shall not contain more than twenty grains of sulphur in ahy form in one hundred cubic feet, nor more than five grains of ammonia in any form in One hundred cubic feet, and shall be free of the impurity known as ‘sulphureted hydrogen.’ ” By the same act was provided a method for testing the candle power.“by the Bunsen photometer, using the Bray slit union burner numbered seven, consuming five cubic feet of gas p hour.”
By the act of Congress of March 3, 1905 (33 Stat. at L. 896, chap. 1406), also amendatory of the general act of 1874, it was provided that “hereafter the illuminating power of gas furnished by any gas-lighting company, person, or persons in the District of Columbia shall be equal to twenty-two candles.”
[471]*471The original act of 1874 contains the clause under which this action was brought. It is as follows: “When the illuminating gas supplied by any company, person, or persons in the District of Columbia shall at any one time be of less illuminating power or of less purity than according to the standard just heretofore given, it shall be so reported by the inspector of gas and meters to the company, person, or persons supplying the same, who shall be subject to a penalty of one hundred dollars, to be recovered before the proper tribunal, and paid into the treasury of the District of Columbia, aforesaid, for each and every day during which such violation shall continue: Provided, however, That if it shall appear that such deviation from the above-named standards could not have been prevented by ordinary care and prudence, but was occasioned by some unavoidable cause, then the said penalty shall not be enforced.”
It is sought by the plaintiff to apply what seems to us an unwarranted and harsh construction to the’ various provisions of the inspection law. It is insisted that each default constitutes a separate offense independent of .the term of its duration, but that not more than one penalty can be imposed for any number of defaults occurring during one day. On the other hand, defendant contends that before the penalty attaches, the default must be shown to have continued uninterruptedly for the full period of one day after notice given and reasonable time accorded the company to remedy it.
We are not impressed with either contention. The statute was not intended to create a source of revenue from the collection of penalties, but to insure the people of the District of Columbia good service from the companies furnishing gas. To this end was the provision in the penalty clause inserted that, when the inspector discovered a defect, notice should be given the company. Why give this notice ? In order that the defect could speedily be remedied. Why grant the privilege of correcting the defect ? Because of the great difficulty, as disclosed by the evidence in this case, of maintaining uniform lighting power and purity in the manufacture of gas. Defects [472]*472will arise from sources which, the most skilled in the art cannot detect. We must attribute to Congress knowledge of this fact; hence, it could not have been intended to hold defendant liable criminally for failure to prevent the happening of an event which human skill could not foresee. While defects in illuminating power may be speedily corrected after discovery, it appears from the testimony of the inspector that it takes probably ten hours to restore purity in the gas after the impurity is first detected. We must also impute knowledge of this fact to Congress. This is a potent reason for the nonenforcement-of the strict rule insisted upon by counsel for plaintiff.
At common law a single continuous offense could not be divided into several separate offenses; but in this country such statutes are common. A continuous offense may be divided into several separate offenses by attaching the penalty for each certain period of time during which the offense continues. It usually occurs in cases where the penalty is imposed upon the accused for failure to abate the thing condemned by law for a fixed period of time, and for each succeeding like period.-
The penalty- clause in the act before us conveys the intent of Congress with reasonable clearness. It requires the inspector, when he discovers “at any one time” a defect, either in the illuminating power or purity of the gas, to report it to the company supplying the same. It then provides that the company shall be subject to a penalty of $100 for every day during which the default shall continue. In other words, we think that, after notice, the penalty immediately begins to run; and, if the defect be permitted to extend for the full period of a day, liability for one penalty will attach, and the company will be liable for a similar penalty for each succeeding day during which it permits the default to continue.
This brings us to the question of how the continuous default of the company must be ascertained. Manifestly the inspector and his assistant are not required to stay in the three laboratories, in only two of which they can be present at one time, and continue the test for the full period of twenty-four hours, or so long as the default continues. In fact, they are only [473]*473permitted by law to enter tbe laboratories during twelve hours of the day. It follows, therefore, that a continuous test is not possible, nor do we think it is required. All that is required is that when, a defect is discovered, and notice given, the inspector shall make a competent test during each succeeding twenty-four hours, and if he still finds the defect, it will be presumed that it has not been corrected, but has continued from the time it was first discovered, and the penalty will attach for each period of twenty-four hours during which the default shall have continued. Good administration would suggest several tests during each day; but the sufficiency of the test actually made to establish a continuing default is a question for the jury. If, however, upon any succeeding test, it appears that there is no defect, it must be presumed that the company has responded to the last notice given, and remedied the defect, and no penalty will accrue for the period succeeding the last inspection on which the defect was found to exist.
An examination of the schedules of dates when defects are alleged to have existed discloses that in several instances the defect existed on one or more succeeding days. Where this condition is found, the company may be liable for the amount of the penalty for each twenty-four hours that it was shown by successive inspections to have continued. As to these instances, the ease should have been submitted to the jury with proper instructions. For the error committed the judgment will be reversed Avith costs, and the cause remanded, with directions to grant a new trial. Reversed.