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80 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 be 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 * 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, 612, 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

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20 d suur, in the transportation forudd

be a leading law of 1895 and 1831 and the Law

a 193 ani 1898 prohibited the bringing
2 ben inspector twenty miles beyond

es The law of 1899, and the proclamation of the
22, mutne elep coming from an infected
marketing, we are pertoitting them to be driven into

portance of the sheep industry, 28
portant elements of the wealth and resources
i entent or the enforcement of laws for the
Hop within the state, if we are to be constantly

ordion of sheep from the infected districts of

Tr counties? And we do not think that a law
a v sodely for the protection of the sheep of this
hele moon by the introduction into the state of sheep

wst stringent and comprehensive

szy terre to desinfect a nature

, but ze the poste dalist which is sharing ata berting the preactions bere ,

de guarantee that there were 39

once, and, if found infected, twice, nter the state, and all this to be

Idaho, twenty miles beyond the 1899 was intended as a quarantine sheep, but only such as from the infected district, are liable to im1899, under which appellant was tine law-nothing more, nothing hat it is, or ever was, an essential atine that the fact of the existence of the quarantine should be primerstand, it is a preventive measure. apprehend, that the state has not lative enactment, the introduction ased animals; and this is all that purports or is intended to accom

i bal Industry

, 1933. Tiba 32 zitz, the legature de cantina That, under the cost

lemialist in was necessary ico en ti te spread of this disease among the 23 de edad; and we are cears of the sly the langatore was the most deco altmale

, tras could have been ad parte e pelo sintet'hat contemptuously of these a legna ad animal industry to the secretary of Stori lilies

, but we notice that they are

10 T. 8. 29, 9 Sep. Ct. B-p. 277. The
la beatinted case

, in drawing the disa

ofte deswem in that case (Baituad Co. T.
i una dine pound that no discrimination was

Te ad divated, and this circumstance is
in partea in the opinion" The same distinting

si con theo crtil the same had been inspected

-f animal industry, in his report to dated March 15, 1898, says: "In ons have been overrun with sheep ed in the sheep industry have been

of their losses from this disease. truction of invested capital, sheep olera, among our animal diseases.

and Rocky Mountain region, and east, have suffered severly, and ed animals to the great stockyards - officer states in his letter transcretary of agriculture: “The dis

the most serious drawbacks to the in enormous financial losses; yet, Its ease of transmission, its severe

certain localities, it is a disease per treatment.” That the length

the Idaho statute is not excessive rules laid down by the authority eep should never be driven upon which scabby sheep have been kept

disinfected, and aired, and should ur weeks (better, two months be

them; 3. Fields in which scabby stand vacant at least four weeks being used for clean sheep; 4. A

sedature

, in rightful recognition of the large

de protection of those animals from disease. But

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drenching rain will frequently serve to disinfect a pasture, but it is well to whitewash the posts against which scabby sheep have rubbed. Even after observing the precautions here given, it is not possible to absolutely guarantee that there will be no reinfection, but the probabilities are against it”: Report of Chief of Bureau of Animal Industry, 1898. With this authoritative statement before them, the legislature of Idaho enacted the law under consideration. That, under the conditione established and recognized, some legislation was necessary for the effective prevention of the spread of this disease among the sheep of this state must be conceded; and we are clearly of the opinion that that adopted by the legislature was the most effective, 9 and the least objectionable, that could have been adopted. Counsel for appellant speaks somewhat contemptuously of these reports of the bureau of animal industry to the secretary of agriculture of the United States, but we notice that they are cited as authority by the supreme court of the United States in Kimmish v. Ball, 129 U. S. 217, 9 Sup. Ct. Rep. 277. The supreme court, in the last-mentioned case, in drawing the distinction between it and the case of Railroad Co. y. Husen, 95 T. S. 465, says: "The decision in that case (Railroad Co. v. Husen) rested upon the ground that no discrimination was made by the law of Missouri, in the transportation forbidden between sound cattle and diseased, and this circumstance is prominently put forth in the opinion.” The same distinction appears between the Idaho law of 1895 and 1897 and the law of 1899. The law of 1895 and 1897 prohibited the bringing into the state of any sheep until the same had been inspected and treated by an Idaho sheep inspector twenty miles beyond the state line. The law of 1899, and the proclamation of the governor thereunder, quarantine sheep coming from an infected district or locality, before permitting them to be driven into this state. Our legislature, in rightful recognition of the large and constantly increasing importance of the sheep industry, as one of the most important elements of the wealth and resources of the state, have enacted most stringent and comprehensive laws for the protection of those animals from disease. But what avails the enactment or the enforcement of laws for the protection of sheep within the state, if we are to be constantly subject to an invasion of sheep from the infected districts of adjoining states or counties? And we do not think that a law made simply and solely for the protection of the sheep of this state from infection by the introduction into the state of sheep

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ing from the places where the sheep have been

M. That protection, then, have the sheep-
get on without the aid of just such preventive laws
ad alatire power, as we understand it. Hav.

on tirely proper and legitimate methods,
".. he did co. He could not have done otherwise

dampious to the charge of dereliction in official

***. The bringing into any county of the state of

wer. It simply requires him to act

vecse was committed capable of comune import Texas, splenic or Spanish ferer

1 dl this act, and that the owner or owners, Sul such cattle had full knowledge in Avi this statute was upheld by the United

paint a contention predicated upon the zatim is the appellant in this case, to wit, para o tre stare in the matter of public regula

10

from a known infected district can in any way be said to interfere with commerce between the states, or abridge the rights of citizens of other states within this state. The law only requires persons who desire to drive sheep into this state from known infected districts to be subject to the same rules and regulations for the prevention and cure of disease among their sheep so sought to be driven into this state as is required of our own citizens. The supreme court of the United States, in Missouri etc. Ry. Co. v. Haber, 169 U. S. 613, 18 Sup. Ct. Rep. 488, which is, we believe, the latest expression of that court upon this question-says: "Neither corporations nor individuals are entitled, by force alone of the constitution of the United States, and without liability for injuries resulting therefrom to others, to bring into one state, from another state, cattle liable to import or capable of communicating disease to domestic cattle. The contrary cannot be affirmed under any sound interpretation of the constitution. This court, while sustaining the power of the Congress to regulate commerce among the states, has steadily adhered to the principle that the states possess, because they have never surrendered, the power to protect the public health, the public morals, and the public safety, by any legislation appropriate to that end which does not encroach upon rights guaranteed by the national constitution, nor come in conflict with the acts of Congress passed in pursuance of that instrument. Although the powers of a state must, in their exercise, give way to a power exerted by Congress under the constitution, it has never been adjudged that that instrument by its own force gives anyone the right to introduce into a state, against its will, cattle so affected with disease that their presence in the state will be dangerous to domestic cattle.” We can see but little difference in principle between the case of Railway Co. v. Haber, 169 U. S. 613, 18 Sup. Ct. Rep. 488, and the case under consideration. The Kansas statute under consideration in that case made any person or persons bringing into that state any cattle liable or capable of communicating Texas, splenic, or Spanish fever to any domestic cattle of that state, liable for all damages that might be sustained by reason of the communication of said disease: “Proof that the cattle which such person or perscns are charged with shipping, driving or keeping, or which are claimed to have communicated the said disease, were brought into this state from south of the thirty-seventh parallel of north latitude, shall be taken as prima facie evidence that such cattle were between the first day of February and the first day of December

and wellint that it was not shown that any
22 lim into this state were diseased, or

, although ready to prove that none
na led, cannot be entertained. The ap-

that he had the sheep in Box Elder This is designated in the proclamation of the 12 de ininted districts, and against which 2 un declared for the period of twenty-five

tres sheep came directly from an infected canto establish their capability and liability se on The authorities upon the disease somato say that it may be communicated by

le tap rith another, or indirectly from tags of alte lace

, puista, ete, against which scabby sheep

be Report of Chief of Bureau of Animal

mind and considered the various assignments

talant's briel, and we do not think that achtersikle error. Appellant claims that 21 kg properly laid. We do not think this conten.

e presurited districts is an offense, and
21 be instituted in any county where the sheep
The con not think that the art delegates to the

prosecu

orans that certain conditions exist. This is not

: of the exigenes which, under the law, required

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of the year in which the offense was committed capable of communicating and liable to import Texas, splenic or Spanish fever within the meaning 11 of this act, and that the owner or owners, person or persons in charge of such cattle had full knowledge and notice thereof." And this statute was upheld by the United States supreme court against a contention predicated upon the same lines contended for by the appellant in this case, to wit, the limit of the power of the state in the matter of public regulations,

The contention of appellant that it was not shown that any of the sheep driven by him into this state were diseased, or that he was not permitted, although ready to prove that none of said sheep were diseased, cannot be entertained. The appellant himself testified that he had the sheep in Box Elder county, Utah, which is designated in the proclamation of the governor as one of the infected districts, and against which quarantine had been declared for the period of twenty-five days. The fact that these sheep came directly from an infected district was sufficient to establish their capability and liability to communicate disease. The authorities upon the disease known as "sheep scab” say that it may be communicated by contact of one sheep with another, or indirectly from tags of wool, or from fences, posts, etc., against which scabby sheep have rubbed, or from the places where the sheep have been "bedded down": See Report of Chief of Bureau of Animal Industry for 1898. What protection, then, have the sheepgrowers of Idaho, without the aid of just such preventive laws as that under consideration ?

We have examined and considered the various assignments of error set out in appellant's brief, and we do not think that any of them present reversible error. Appellant claims that the venue is not properly laid. We do not think this contention can obtain. The bringing into any county of the state of sheep from the prescribed districts is an offense, and prosecution therefor may be instituted in any county where the sheep are found. We do not think that the act delegates to the governor legislative power. It simply requires him to act when he ascertains that certain conditions exist. This is not a delegation of legislative power, as we understand it. Having ascertained, through entirely proper and legitimate methods, the existence of the exigency which, under the law, required 12 him to act, he did so. He could not have done otherwise without being obnoxious to the charge of dereliction in official

Am. St. Rep., Vol. 97–16

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