CASES

IN THE

SUPREME COURT

OF

IDAHO.

STATE v. RASMUSSEN.

[7 Idaho, 1, 59 Pac. 933.]

QUARANTINE of Animals.—A state has the power by law to prevent the introduction within its boundaries of diseased animals, and it is not an essential to the enforcement of such law that the fact of the existence of disease be primarily established. (p. 238.)

QUARANTINE of Animals-Constitutional Law.-A statute made simply and solely for the protection of the animals of the state from infection by the introduction into the state of diseased animals from a known infected district outside the state is a valid exercise of the police power, and does not in any way interfere with commerce between the states, or abridge the rights of citizens of other states within the state where the statute is enacted. (p. 239.)

Brown & Henderson, S. C. Winters and J. J. Guheen, for the appellant.

S. H. Hays, attorney general, for the state.

8 HUSTON, C. J. The appellant was convicted of a violation of the provisions of an act of the legislature of Idaho, and the proclamation of the governor issued under and in obedience to the command of said statutes, from which judgment this appeal is taken. The said act is as follows:

"Section 1. Whenever the governor of the state of Idaho has reason to believe that scab or any other infectious disease of 4 sheep has become epidemic in certain localities in any other state or territory, or that conditions exist that render sheep likely to convey disease, he must thereupon, by proclamation, designate such localities and prohibit the importation from them of any sheep into the state, except under such restrictions as, after consultation with the state sheep inspector, he may deem proper.

Any person or corporation who, after publication of such proclamation, receives in charge any such sheep from any of the prohibited districts, and transports, conveys or drives the same to and within the limits of any of the counties of this state, is punishable by a fine not exceeding one thousand dollars, nor less than two hundred dollars, and is liable for all damages that may be sustained by any person by reason of the importation or transportation of such prohibited sheep.

"Sec. 2. Upon issuing such proclamation, the owners or persons in charge of any sheep being shipped into Idaho, against which quarantine has been declared, must forthwith notify the deputy inspector of the county into which such sheep first come, of such arrival, and such owner or persons in charge must not allow any sheep so quarantined to pass over or upon any public highway, or upon the ranges occupied by other sheep, or within five miles of any corral in which sheep are usually corraled until such sheep have first been inspected, and any person failing to comply with the provisions of this section is punishable as provided in section 1 of this act, and is liable for all damages sustained by any person by reason of the failure to comply with the provisions of this section."

On the twelfth day of April, 1899, the governor of Idaho, in compliance with the provisions of said act, issued the following proclamation:

"State of Idaho, Executive Office. "Whereas, I have received statements from reliable woolgrowers and stock-raisers of the state of Idaho, said statements being supplemented by affidavits of reputable persons, all to the effect that the disease known as 'scab' or 'scabbies' is epidemic among sheep in certain localities or districts, viz., in the county of Cache, state of Utah, the county of Box Elder, state of Utah, and the county of Elko, in the state of Nevada; and 5 whereas, it is known that sheep from said districts are annually moved, driven, or imported into the state of Idaho, and, if so moved, would thereby spread infection and disease on the ranges and among the sheep of this state, which act would result in great disaster: Now, therefore, I, Frank Steuenberg, governor of the state of Idaho, by virtue of authority in me vested, and after due consultation with the state sheep inspector, do hereby prohibit the importation, driving, or moving into the state of Idaho of all sheep now being held, herded, or ranged within said infected district, viz., the county of Cache, in the state of Utah, the county of Box Elder, in the state of Utah, and the

county of Elko, in the state of Nevada, or which may hereafter be held, herded or ranged within said infected districts, for a period of sixty days from and after the date of this proclamation. After the termination of said sixty days sheep can be moved into this state only upon compliance with all laws of the state of Idaho regarding the inspection and dipping of sheep. In witness whereof, I have hereunto set my hand, and caused to be affixed the great seal of the state. Done at Boise, the capital, this 12th day of April, in the year of our Lord one thousand eight hundred and ninety-nine.

"FRANK STEUENBERG. [Seal]

"By the governor:

"M. PATRIE, "Secretary of State."

While there are some sixteen assignments of error in this case, it is conceded by counsel for appellant that the important question involved is the constitutionality of the act of the legislature of Idaho under which the conviction was had. It is claimed that this case comes within the reasoning of this court in the case of State v. Duckworth, 5 Idaho, 642, 95 Am. St. Rep. 199, 51 Pac. 456. In that case the defendant was convicted of a violation of an act of the legislature of Idaho passed in 1895, and amended in 1897, section 6 of which act provides as follows: "Sec. 6. Any person, persons, company, corporation or association intending to bring, or cause to be brought from any other state or territory into any of the counties of the state of Idaho, any sheep, he or they must first notify the deputy sheep

inspector of the district or county nearest to the point of entrance into this state that at a fixed date he will be within twenty miles from the state line at a designated point, with said sheep for inspection; and it shall be the duty of the deputy sheep inspector to examine such sheep within three days, and if pronounced sound, to immediately dip such sheep once, and then upon being tendered his compensation as hereinafter provided, issue a permit allowing such sheep to enter this state subject to such regulations as are enforced on resident sheep. But if such sheep are found scabby or infected with any contagious or infectious disease, then the deputy sheep inspector must dip said sheep twice with an interval of from eight to fifteen days between dipping and then issue a permit for said sheep to enter said state under the same regulations as heretofore provided; provided, however, that all sheep must enter said state within three days from the final dipping, otherwise permit

so issued shall be null and void. And any person or persons violating any of the provisions of this section shall be deemed guilty of a misdemeanor, and upon conviction, they shall be punished by a fine of not less than one hundred ($100) dollars, nor more than three hundred ($300) dollars, or by imprisonment in the county jail not less than two months nor more than six months, or by both such fine and imprisonment; provided, that any person, persons, company, corporation or association bringing or causing to be brought any sheep into any counties. of this state in violation of the provisions of this act, shall be fined in addition to the penalty imposed in this section, five cents per head, for every sheep so brought into this state, which shall be a lien on said sheep; and it shall be the duty of the deputy sheep inspector to seize and hold such sheep by such means as he deems best, for a period of ten days, and if said sum is not paid within that period, to advertise and sell said sheep, or as many of the same as may be necessary to satisfy and pay such fine and costs."

And section 14 of the law of 1895 provides as follows:

"Sec. 14. It shall be unlawful for any person, persons, company, corporation or association, owning, controlling or managing any ferry-boat, toll-bridge, car, steamboat or other things 7 used for transportation, to allow any sheep to be carried thereon, unless the party in charge of said sheep shall first produce a certificate from a deputy sheep inspector appointed under this act, that said sheep are free from scab, scabbies or other infectious or contagious disease. Any violation of this section shall be deemed a misdemeanor and punishable by a fine of not less than one hundred dollars nor more than two hundred and fifty dollars."

A comparison of the act of 1897 with the act under question will, we think, disclose a greater difference than existed between the law of Missouri held by the supreme court of the United States to be invalid in Railroad Co. v. Husen, 95 U. S. 465, and the law of Kansas, the validity of which was sustained by the same court in Missouri etc. Ry. Co. v. Haber, 169 U. S. 613, 18 Sup. Ct. Rep. 488. The statute under consideration in the case of State v. Duckworth, 5 Idaho, 642, 95 Am. St. Rep. 199, 51 Pac. 456, prohibited the introduction into this state, in any manner or form, or the transportation through the state in any way or by any means, of any sheep, until same had been inspected by a sheep inspector of Idaho, which inspection must be made twenty miles beyond the state line of Idaho; and all

sheep must be dipped at least once, and, if found infected, twice, before they were allowed to enter the state, and all this to be done by a sheep inspector of Idaho, twenty miles beyond the line of the state. The law of 1899 was intended as a quarantine law. It does not exclude all sheep, but only such as from the fact of their coming from an infected district, are liable to import disease. The statute of 1899, under which appellant was convicted, is simply a quarantine law-nothing more, nothing less. We do not understand that it is, or ever was, an essential to the enforcement of a quarantine that the fact of the existence of the disease in the subject of the quarantine should be primarily established. As we understand, it is a preventive measure. It will hardly be claimed, we apprehend, that the state has not the power to prevent, by legislative enactment, the introduction within its boundaries of diseased animals; and this is all that the act under consideration purports or is intended to accomplish.

8 The chief of the bureau of animal industry, in his report to the secretary of agriculture dated March 15, 1898, says: "In the United States, some sections have been overrun with sheep scab, and many persons engaged in the sheep industry have been forced to forsake it because of their losses from this disease. It is probable that, in its destruction of invested capital, sheep scab is second only to hog cholera, among our animal diseases. The large flocks of the plains and Rocky Mountain region, and the feeding stations farther east, have suffered severly, and are constantly sending diseased animals to the great stockyards of this country." The same officer states in his letter transmitting his report to the secretary of agriculture: "The disease known as 'scab' is one of the most serious drawbacks to the sheep industry, and results in enormous financial losses; yet, despite its insidious nature, its ease of transmission, its severe effects, and its prevalence in certain localities, it is a disease which yields readily to proper treatment." That the length of time of quarantine fixed by the Idaho statute is not excessive is, we think, shown by the rules laid down by the authority already cited: "1. Scabby sheep should never be driven upon a public road; 2. Sheds in which scabby sheep have been kept should be thoroughly cleaned, disinfected, and aired, and should be left unused for at least four weeks (better, two months) before clean sheep are placed in them; 3. Fields in which scabby sheep have been kept should stand vacant at least four weeks (better, six or eight) before being used for clean sheep; 4. A