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association, or corporation to bring or | ant said "that the state board of sanitary drive, or cause to be brought or driven, into inspection, through one of their inspectors, this state, between the first day of April had inspected the cattle against his will and and the first day of November, any cattle or desire, but that he had not obtained from horses from a state, territory, or county, the board any certificate or bill of health south of the 36th parallel of north latitude, whatsoever. But he said that he immediunless said cattle or horses have been held ately theretofore had had the cattle inat some place north of the said parallel of spected by a duly authorized inspector of latitude for a period of at least ninety days the Bureau of Animal Industry of the prior to their importation into this state, or United States, at Hereford, in the state of unless the person, association, or corpora- Texas, and had obtained a certificate from tion owning or having charge of such cattle him to the effect that the same were free or horses shall procure from the state veteri- from any infectious or contagious disease; nary sanitary board a certificate, or bill of that the reason he could not get a certifi. health, to the effect that said cattle or cate or bill of health from the state board horses are free from all infectious or con- of Colorado was because he would not pay tagious diseases, and have not been exposed, the expense of such inspection, and because at any time within ninety days prior there he had opposed such inspection as unnecesto, to any of said diseases. The expense of sary and without any warrant in law." any inspection connected herewith to be When refusing his assent to the state inpaid by the owner or owners of such cattle spection, Reid showed to the state author. or horses,

ities what he called a “United States cere "S 3. Any person violating the provision tificate.” of this act shall be deemed guilty of a mis- The certificate was signed by “Arthur C. demeanor, and shall, on conviction, be pun- Hart, Ass't Inspector, Bureau of Animal ished by a fine of not less than five hundred Industry." That officer certified that he (500) dollars, nor more than five thousand had carefully inspected the cattle in ques(5,000) dollars, or by imprisonment in the tion at Hereford, Texas, and found them county jail for a term of not less than six “free from Texas or splenetic fever* infecmonths, and not exceeding three years, or tion (boophilus bovis), or any other infecby both such fine and imprisonment. tious or contagious disease,” and that "no

"§ 4. If any person, association, or cor- Texas fever infection is known to exist poration shall bring, or cause to be brougḥt, where they have been kept or on the trail into this state, any cattle or horses, in vio- over which they have passed.” Below the lation of the provisions of sections 1 or 2 of signature of the assistant inspector was the this act, or shall, by false representation, following unsigned printed memorandum: procure a certificate of health, as provided "Animals which have been inspected and for in section 2 of this act, he or they shall certified by an inspector of the U. S. Bureau be liable, iu all cases, for all damages sus- of Animal Industry, and are free from distained on account of disease communicated ease, have the right to go into any state and by or from said cattle or horses; judgment be sold for any purpose, without further in. for damag-s in any such case, together with spection or the exaction of fees.” the costs of action, shall be a lien upon all The above, together with certain pubsuch cattle and horses, and a writ of at- lished regulations prepared and issued by tachment may issue in the first instance the Bureau of Animal Industry, was all the without the giving of a bond, and the court evidence in the case. rendering such judgment may order the sale The defendant asked the court to instruct of said cattle or horses, or so many thereof the jury: as* may be necessary to satisfy said judg. That it was unnecessary for the defend

ments and costs. Such sale shall be con- ant to procure from the Colorado veterinary ducted as other sales under execution." sanitary board a certificate or bill of health Colo. Sess. Laws 1885, p. 335.

to the effect that his cattle were free from There was no proof in the case that the infectious or contagious diseases, and had particular cattle in question had any dan- not been exposed at any time within ninety gerous, infectious, or contagious disease. days prior thereto, to any of said diseases, But it did appear that after being kept a for the reason that the cattle had previouslong while in Lubbock and Cochran coun- ly been inspected, “according to the statute ties, Texas, south of the 36th parallel of of the United States in such case made and north latitude, these cattle were shipped on provided, and according to the rules and the 20th day of June, 1901, to Denver, Colo- regulations pursuant to said statute, prorado, on their way to their ultimate desti- mulgated by the Department of Agriculnation in Wyoming, without being first in- ture, by a duly authorized inspector of the spected as required by the statute of the Bureau of Animal Industry of the United former state. The provisions of the Colo States, stationed at Hereford, in the state rado statute were ignored altogether as in. of Texas, and had been duly certified by valid legislation. Being asked by one of the such United States inspector to be free from witnesses whether he had or not allowed the any infectious or contagious disease; and state board of sanitary inspection to inspect for the further reason that he, the said dethe cattle or whether or not he had procured fendant, then and there exhibited and from the state veterinary sanitary board showed to the said state inspector of Coloa certificate or bill of health to the ef- rado the said inspection certificate of the fect that the cattle were free from all in. United States to said cattle;” and, fectious or contagious diseases, the defend- That the Colorado statute, approved March 21st, 1885, and under which defendo , pneumonia and Other Contagious Diseases ant was prosecuted, was repugnant to the among Domestic Animals.” provision of the Constitution of the United By the 1st section the Commissioner of States giving Congress power to regulate Agriculture is directed to organize in his de commerce among the states, as well as to partment a Bureau of Animal Industry, to the provision declaring that the citizens of appoint a chief thereof, who shall be a comeach state shall be entitled to all the privi- petent veterinary surgeon, and whose duty leges and immunities of citizens in the sev- it shall be “to investigate and report upon eral states, and was null and void, as im- the condition of the domestic animals of the posing unnecessary and unlawful burdens United States, their protection and use, and and restrictions upon interstate commerce. also inquire into and report the causes of

• The court refused to so instruct the jury, contagious, infectious, and communicable but instructed them that if they believed diseases among them, and the means for the from the evidence, beyond a reasonable prevention and cure of the same, and to coldouht, that the defendant did, on or about lect such information on these subjects as the 20th day of June, 1901, that is, between shall be valuable to the agricultural and the 1st day of April and the lst day of No commercial interests of the country.” § 1 vember of that year, “unlawfully bring or [U. S. Comp. Stat. 1901, p. 299). drive, or cause to be brought or driven, into By the 2d section the Commissioner is au. the state of Colorado, and into the county of thorized to appoint two competent agents, Arapahoe, the cattle as mentioned in the in- practical stock raisers or experienced busiformation or any part thereof, from certain ness men familiar with questions pertaining counties south of the 36th parallel, north to commercial transactions in live stock, latitude; and that said cattle had not been whose duty it shall be, under the instrucheld theretofore at some place north of said tions of the Commissioner, "to examine and parallel of latitude for a period of at least report upon the best methods of treating, ninety days prior to the importation of said transporting, and caring for animals, and cattle into said state of Colorado; and that the means to be adopted for the suppression the said defendant had not procured from and extirpation of contagious pleuro-pneu. the state veterinary sanitary board of Colo- monia, and to provide against the spread of rado a certificate or bill of health, to the other dangerous contagious, infectious, and effect that said cattle were free from infec- communicable diseases." $ 2 [U. S. Comp. tious or contagious diseases, and to the ef. Stat. 1901, p. 300). fect that the same had not been exposed at The 3d section makes it “the duty of the any time within ninety days prior thereto Commissioner of Agriculture to prepare to any of said diseases; and that then and such rules and regulations as he may deem there the said defendant did refuse and de- necessary for the speedy and effectual supcline to procure, or permit anyone for him pression and extirpation of said diseases, to procure, such certificate bill of and to certify such rules and regulations to health, and did refuse and decline to pay or the executive authority of each state and allow, or suffer or permit anyone for him territory, and invite said authorities to coto pay, the expense of any inspection so as operate in the execution and enforcement of by the act prescribed, then and in that this act." And "whenever the plans and event it is your duty to find the defendant methods of the Commissioner of Agriculture guilty as charged in this information.” shall be accepted by any state or territory

The contention here of the defendant is in which pleuro-pneumonia or other conta. substantially that the subject of the trans- gious, infectious, or communicable disease is portation of cattle from one state to an. declared to exist,* or such state or territory oher has been so far covered by the act of shall have adopted plans and methods for Congress known as the animal industry act the suppression and extirpation of said disof May 29th, 1884 (23 Stat. at L. 31, chap. eases, and such plans and methods shall be 60, U. S. Comp. Stat. 1901, p. 299), that, accepted by the Commissioner of Agricul. after its passage, no enactment by the state ture, and whenever the governor of a state upon the same subject was permissible; and or other properly constituted authorities that, even in the absence of legislation by signify their readiness to co-operate for the Congress, the Colorado statute is invalid, extinction of any contagious, infectious, or in that, by its natural or necessary opera- communicable disease in conformity with the tion, it unreasonably obstructs that free provisions of this act, the Commissioner of dom of commerce among the states which Agriculture is hereby authorized to expend the Constitution established. These ques- so much of the money appropriated by this tions are recognized by the court as of great act as may be necessary in such investigaimportance, and have received its most care- tions, and in such disinfection and quaranful consideration.

tine measures as may be necessary to pre Taking up the first branch of the defend- vent the spread of the disease from one ant's contention, let us look at the control- state or territory into another.” $3 (U. S. 'ling provisions of the above act of Congress, Comp. Stat. 1901, p. 300). and ascertain whether that statute has the In order "to promote the exportation of scope and effect claimed for it.

live stock from the United States,” the The statute is entitled “An Act for the Commissioner was directed to "make spe Establishment of a Bureau of Animal In- cial investigation as to the existence of dustry, to Prevent the Exportation of Dis- pleuro-pneumonia, or any contagious, infes eased Cattle, and to Provide Means for the tious, or communicable disease, along the Suppression and Extirpation of Pleuro 'dividing lines between the United States



and foreign countries, and along the lines meanor, and, upon conviction, shall be punof transportation from all parts of the ished by a fine of not less than one hundred United States to ports from which live stock por more than five thousand dollars, or by are exported, and make report of the re- imprisonment for not more than one year, sults of such investigation to the Secretary or by both such fine and imprisonmente of the Treasury, who shall, from time to (U. S. Comp. Stat. 1901, p. 3184.] time, establish such regulations concerning "g 8. That whenever any contagious, in. the exportation and transportation of live fectious, or communicable disease affecting stock as the results of said investigations domestic animals, and especially the disease may require.” ($ 4 (U. S. Comp. Stat. 1901, known pleuro-pneumonia, shall be p. 3183]); and that “to prevent the expor brought into or shall break out in the Distation from any port of the United States trict of Columbia, it shall be the duty of to any port in a foreign country of live the commissioners of said District to take stock affected with any contagious, infec. measures to suppress the same promptly tious, or communicable disease, and espe and to prevent the same from spreading; cially pleuro-pneumonia,” the Secretary of and for this purpose the said commissionthe Treasury was authorized to take such ers are hereby empowered to order and resteps and adopt such measures, not incon. quire that any premises, farm, or farms sistent with the provisions of the act, as he where such disease exists or has existed, be might deem necessary. $ 5 (U. S. Comp. put in quarantine; to order all or any ani. Stat. 1901, p. 3183).

mals coming into the District to be detained By another section of the act all railroad at any place or places for the purpose of in. companies within the United States, or the spection and examination; to prescribe reg. owners or masters of any steam or sailing ulations for and to require the destruction vessel or other vessel or boat, were forbid- of animals affected with contagious, infecden to receive for transportation or trans- tious, or communicable disease, and for the port from one state or territory to another, proper disposition of their hides and car. or from any state into the District of Co casses; to prescribe regulations for disinlumbia, or from the District into any state, fection, and such other regulations as they “ady live stock affected with any conta. may deem necessary to prevent infection or gious, infectious, or communicable disease, contagion being communicated, and shall reand especially the disease known as pleuro-port to the Commissioner of Agriculture pneumonia; nor shall'any person, company, whatever they may do in pursuance of the or corporation deliver for such transporta provisions of this section. (U. S. Comp. tion to any railroad company, or master or Stat. 1901, p. 3184.) owner of any boat or vessel, any live stock, 9. That it shall be the duty of the sovknowing them to be affected with any con- eral United States district attorneys to tagious, infectious, or communicable dis- prosecute all violations of this act which ease; nor shall any person, company, or cor. shall be brought to their notice or knowlporation drive on foot or transport in pri- edge by any person making the complaint vate conveyance from one state or territory under oath; and the same shall be heard be to another, or from any state into the Dis- fore any district or circuit court of the trict of Columbia, or from the District into United States or territorial court holden any state, any live stock, knowing them to within the district in which the violation of be affected with any contagious, infectious, this act has been committed.” (U. S. Comp. or communicable disease, and especially the Stat. 1901, p. 3185.] 23 Stat. at L 31, disease known as pleuro-pneumonia: Pro- chap. 60 (U. S. Comp. Stat. 1901, p. 299). vided, That the so-called splenetic or Texas It may be here stated that by the act of fever shall not be considered a contagious, February 9th, 1889, the Department of Ag. infectious, or communicable disease within riculture was made one of the Executive the meaning of sections 4, 5, 6, and 7 of this Departments of the government, and placed act, as to cattle being transported by rail to under the supervision and control of a Secmarket for slaughter, when the same are un retary of Agriculture (25 Stat. at La 659, loaded only to be fed and watered in lots on chap. 122, V. S. Comp. Stat. 1901, p. 285), the way thereto.” § 6 (U. S. Comp Stat. and that by the act of July 14th, 1890, the 1901, p. 3184).

Secretary was vested with all the authority Other provisions of the act are as fol which by the above act of May 29th, 1884, lows:

was conferred upon the Commissioner of "§ 7. That it shall be the duty of the Agriculture. 26 Stat. at L. 282, chap. 707. Commissioner of Agriculture to notify, in It is quite true, as urged on behalf of the writing, the proper officials or agents of any defendant, that the transportation of live railroad, steamboat, or other transportation stock from state to state is a branch of incompany doing business in or through any terstate commerce, and that any specified infected locality, and by publication in such rule or regulation in respect of such transnewspapers as he may select, of the exist- portation, which Congress may lawfully ence of said contagion; and any person or prescribe or authorize, and which may proppersons operating any such railroad, or erly be deemed a regulation of such com. master or owner of any boat or vessel, or merce, is paramount throughout the Union. owner or custodian of or person having con. So that when the entire subject of the trol over such cattle or other live stock transportation of live stock from one state within such infected district, who shall to another is taken under direct national knowingly violate the provisions of section supervision, and a system devised by which 6 of this act, shall be guilty of a misde- 'diseased stock may be excluded from inter.

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state commerce, all *local or state regula- | states to care for the safety of the property tions in respect of such matters and cover of their peoples by such legislation as they ing the same ground will cease to have any deemed appropriate. It did not undertako force, whether formally abrogated or not; to invest any officer or agent of the Departand such rules and regulations as Congress ment with authority to go into a state and may lawfully prescribe or authorize will without its assent take charge of the work alone control. Gibbons v. Ogden, 9 Wheat. of suppressing or extirpating contagious, 1, 210, 6 L. ed. 23, 73; Morgan's L. & T. R. infectious, or communicable diseases there & s. s. Co. v. Louisiana Bd. of Health, 118 prevailing, and which endangered the health U. S. 455, 464, 30 L. ed. 237, 241, 6 Sup. Ct. of domestic animals. Nor did Congress Rep. 1114; Hennington v. Georgia, 163 U. give the Department authority by its offiS. 299, 317, 41 L. ed. 166, 173, 16 Sup. Ct. cers or agents to inspect cattle within the Rep. 1086; New York, N. H. & H. R. Co. v. limits of a state, and give a certificate that Neio York, 165 U. S. 628, 631, 41 L. ed. should be of superior authority in that or 853, 854, 17 Sup. Ct. Rep. 418; Missouri, other states, or which should entitle the K. & T. R. Co. v. Haber, 169 U. S. 613, 626, owner to carry his cattle into or through 42 L. ed. 878, 882, 18 Sup. Ct. Rep. 488; another state without reference to the reaRasmussen v. Idaho, 181 U. S. 198, 200, 45 sonable and valid regulations which the latL. ed. 820, 821, 21 Sup. Ct. Rep. 594. The ter state may have adopted for the protecpower which the states might thus exercise tion of its own domestic animals. It should may in this way be suspended until na- never be held that Congress intends to su. tional control is abandoned and the subject persede, or by its legislation suspend, the be thereby left under the police power of the exercise of the police powers of the states, states,

even when it may do so, unless its purpose But the difficulty with the defendant's to effect that result is clearly manifested. case is that Congress has not by any statute this court has said-and the principle has covered the whole subject of the transporta- been often reaffirmed—that "in the application of live stock among the several states, tion of this principle of supremacy of an and, except in certain particulars not in- act of Congress in a case where the state volving the present issue, has left a wide law is but the exercise of a reserved power, field for the exercise by the states of their the repugnance or conflict should be direct power, by appropriate regulations, to pro- and positive, so that the two acts could not tect their domestic animals against conta- be reconciled or consistently stand togethgious, infectious, and communicable dis- er.Sinnott v. Davenport, 22 How. 227,

243, 16 L. ed. 243, 247. The certificato An examination of the animal industry given to the defendant by Assistant Inspectact will make this entirely clear. Three or Hart of the Bureau of Animal Industry distinct subjects are embraced by that act. was in itself without legal weight in ColoOne is the ascertainment through the Agri- rado. As said in Missouri, K. & T. R. Co. cultural Department of the condition of the v. llaber, above cited: “While the states domestic animals of the United States, the were invited to co-operate with the general causes of contagious, infectious, or com government in the execution and enforcement municable diseases affecting them, the best of the act, whatever power they had to promethods for treating, transporting, and car: tect their domestic cattle against such dising for animals, the means to be adopted eases was left untouched and unimpaired by for the suppression and extirpation of such the act of Congress.” Hence, it was decided diseases, particularly that of contagious in that case that the animal industry act pleuro-pneumonia, and to collect such infor- did not stand in the way of the state of mation on those subjects as will be valu. Kansas enacting a statute declaring that able to the agricultural and commercial in- any person driving, shipping, or transportterests of the country. Congress did not ing, or causing to be shipped, driven, or assume to declare that "the rules and regu. transported into or through that state, any lations” which that Department might cattle liable or capable of communicating adopt as necessary "for the speedy and effec- Texas or splenetic fever to domestic cattle tual suppression and extirpation of said dis- should be liable to the person injured there eases” should have in themselves, or apart by for all damages sustained by reason of from the action of a state, any binding the communication of said disease or fever, force upon the states. They were to be cer- to be recovered in a civil action. We there tified to the executive authority of each held that the Kansas statute did nothing state, and the co-operation of such authori. more than establish a rule of civil liability, ties in executing the act of Congress in- in that state, affected no regulation of invited. If the authorities of any state terstate commerce that Congress had preadopted the plans and methods devised by scribed or authorized, and impaired no right the Department, or if the state authorities secured by the national Constitution. adopted measures of their own which the Another subject embraced by the act of Department approved, then the money ap- Congress related to the exportation from propriated by Congress could be used in ports of the United States to ports in for. conducting the required investigations, and eign countries of live stock affected with in such disinfection and quarantine meas-contagious, infectious, or communicable disures as might be necessary to prevent the eases, especially pleuro-pneumonia; and in spread of the diseases in question from one relation to that matter the Secretary of the state or territory into another. Congress Treasury was authorized to take such steps did not intend to override the power of the' and adopt such measures, not inconsistent with the act of Congress, as he deemed nec and its constitutionality is not to be quesessary. As the present case is not one of tioned unless it be in violation of the Conthe exportation of live stock to a foreign stitution of the United States, independent country, it is unnecessary to consider what ly of any legislation by Congress. The latpower, if any, remained with the states, ter question we now proceed to examine. after the passage of the animal industry Certain principles are well settled by the act, to suppress or extirpate diseases that former decisions of this court. One is that in fact affected live stock, which it was the the purpose of a statute, in whatever lan. purpose of the owners to export

guage it may be framed, must be determined still another subject covered by the act is by its natural and reasonable effect. Aen. the driving on foot or transporting from derson v. New York, 92 U. S. 259, 268, sub one state or territory into another state or nom. Il enderson v. Wickham, 23 L. ed. 543, territory, or from any state into the Dis- 548. Another is, that a state may not, by trict of Columbia, or from the District into its police regulations, whatever their ob. any state, of any live stock known to be af-ject, unnecessarily burden foreign or interfected with any contagious, infectious, or state commerce. Hannibal & St. J. R. Co. communicable disease. But this provision v. Ilusen, 95 U. S. 465, 472, 24 L. ed. 527, does not cover the entire subject of the 531. Again, the acknowledged police pow. transporting or shipping of diseased live ers of a state cannot legitimately be exerted stock from one state to another. The owner so as to defeat or impair a right secured by of such stock, when bringing them into an the national Constitution, any more than to other state, may not know them to be dis. defeat or impair a statute passed by Con. cased; but they may, in fact, be diseased, or gress in pursuance of the powers granted to the circumstances may be such as fairly to it. Gibbons v. Ogden, 9 Wheat. 1, 210, 6 L. authorize the state into which they are ed. 23, 73; Missouri, K. & T. R. Co. v. Á aber, about to be brought to take such precau- 169 U. S. 613, 625, 626, 42 L. ed. 878, 882, tionary measures as will reasonably guard 18 Sup. Ct. Rep. 488, and authorities cited. its own domestic animals against danger Now, it is said that the defendant has a from contagious, infectious, or communica- right under the Constitution of the United ble diseases. The act of Congress left the States to ship live stock from one state to state free to cover that field by such regu. another state. This will be conceded on all lations as it deemed appropriate, and which hands. But the defendant is not given by only incidentally affected the freedom of that instrument the right to introduce into interstate commerce. Congress went no a state, against its will, live stock affected farther than to make it an offense against by a contagious, infectious, or communicathe United States for any one knowingly to ble disease, and whose presence in the state take or send from one state or territory to will or may be injurious to its domestic another state or territory, or into the Dis- animals. The state Congress not having trict of Columbia, or from the District into assumed charge of the matter as involved in any state, live stock affected with infectious interstate commerce-may protect its pea or communicable disease. The animal in- ple and their property against such dangers, dustry act did not make it an offense taking care always that the means employed against the United States to send from one to that end do not go beyond the necessities state into another live stock which the ship of the case or unreasonably burden the exerper did not know were diseased. The of- cise of privileges secured by the Constitufense charged upon the defendant in the tion of the United States. state court was not the introduction into Is the statute of Colorado liable to the Colorado of cattle that he knew to be dis- objection just stated? Can the courts hold eased. He charged with having that upon its face it unreasonably obstructs brought his cattle into Colorado from cer- the exercise of the general right secured by tain counties in Texas, south of the 36th the Constitution to ship or send recognized parallel of north latitude, without said cat- articles of commerce from one state to anile having been held at some place north of other without interference by local author. said parallel of latitude for at least the ity? Those questions must be answered in time required prior to their being brought the negative. The Colorado statute, in efinto Colorado, and without having procured fect, declares that live stock coming between from the state veterinary sanitary board a the dates and from the territory specified certificate or bill of health to the effect that are ordinarily in such condition that their his cattle, in fact, were free from all in- presence in the state may be dangerous to fectious or contagious diseases, and had not its domestic animals; and hence the rebeen exposed at any time within ninety quirement that before being brought or sent days prior thereto to any such diseases, but into the state they shall either be kept at had declined to procure such certificate or some place north of the 36th parallel of have the inspection required by the statute. north latitude for at least ninety days prior His knowledge as to the actual condition of to their importation into the state, or thea the cattle was of no consequence under the owner must procure from the state veteri. state enactment, or under the charge made. nary sanitary board a certificate or bill of

Our conclusion is that the statute of health that the cattle are free from all in. Colorado as here involved does not cover the fectious or contagious diseases, and have same ground as the act of Congress, and not been exposed to any of said diseases at therefore is not inconsistent with that act; any time within ninety days prior thereto.

23 S. C.-7.


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