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 conditions 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, 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. v. Husen, 95 U. 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

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 10 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 persons 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

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

duty. The claim that the law discriminates against the citizens of Utah is entirely unsupported. We think most, if not all, of the other questions raised in the assignment of errors have been disposed of in this opinion. The judgment of the district court is affirmed, with costs to respondent.

Quarles and Sullivan, JJ., concur.

REGULATIONS WHICH THE STATE MAY ENFORCE CONCERNING THE QUARANTINE OF ANIMALS.*

I. Constitutionality of Quarantine Statutes.

II. United States and State Statutes.

III. Sanitary Boards and Commissions.

I. Constitutionality of Quarantine Statutes.

In the great cattle and sheep-raising states of this country statutes have been enacted whose object is to protect from contagious and infectious diseases the animals domiciled therein, and with that end in view they restrict or prohibit the importation of cattle from other localities, likely to impart disease. These statutes have been before the courts on numerous occasions, and the question of their constitutionality passed upon, the chief objection urged against them being that they interfere with that clause of the constitution of the United States empowering Congress to regulate commerce between the different states. The statutes themselves differ as to their provisions, and must on that account be separately examined.

In Reid v. People, 29 Colo. 533, 93 Am. St. Rep. 69, 68 Pac. 228, affirmed in 187 U. S. 137, 23 Sup. Ct. Rep. 92, it is said: "Unquestionably, quarantine and inspection laws of a state having for their object the health of its citizens, or the prevention or suppression of disease among its domestic livestock, is within the province of state legislation. It comes within the scope of the general police power which the states have never surrendered. While it is true that, under the guise of exerting its police power, the state may not go beyond what is necessary for the protection of its citizens and their property, or to such length as to interfere with, or obstruct, legislation of Congress calculated to regulate interstate commerce, or infringe upon any of the sovereign powers intrusted to Congress, yet, if it keeps within the scope of its authority and prescribes regulations which are reasonably necessary to further the legitimate object aimed at, its acts may be upheld." The statute there under

*REFERENCES TO MONOGRAPHIC NOTES.

Enactment of quarantine laws: 27 Am St. Rep. 567.

Quarantine and health laws and regulations: 47 Am. St. Rep. 533.

consideration provided that for a certain period of each year it should be unlawful to bring into Colorado cattle from south of the thirty-sixth degree parallel of north latitude, unless they had been held, for at least ninety days prior to their importation, at some place north of that parallel, or unless a certificate from the state sanitary board should be procured, the owner to pay the expense of inspection. This the court held not in conflict either with the commerce clause of the United States constitution, nor with the section guaranteeing equal privileges to the citizens of the several states; nor is the inspection fee an impost, tax or duty.

How far a right of a shipper of cattle is impaired is discussed in the same case before the United States supreme court-Reid v. People, 187 U. S. 137, 23 Sup. Ct. Rep. 92-Justice Harlan, in the course of the opinion, saying: "Now, it is said that the defendant has a right under the constitution of the United States to ship livestock from one state to another state. This will be conceded on all hands. But the defendant is not given by that instrument the right to introduce into a state, against its will, livestock affected by a contagious, infectious or communicable disease, and whose presence in the state will or may be injurious to its domestic animals. The state-Congress not having assumed charge of the matter as involved in interstate commerce-may protect its people and their property against such dangers, taking care always that the means employed to that end do not go beyond the necessities of the case or unreasonably burden the exercise of privileges secured by the constitution of the United States."

An early Illinois statute made it unlawful for anyone to bring into that state, or own, or have in possession, any Texas or Cherokee cattle. The court held in Yeazel v. Alexander, 58 Ill. 254, that this was a valid exercise of police power, and not unconstitutional, and this case was followed in Stevens v. Brown, 58 Ill. 289; Somerville v. Marks, 58 Ill. 371; Chicago etc. R. Co. v. Gasaway, 71 Ill. 570. That line of cases was, however, overruled in Sulzenstein v. Mavis, 91 Ill. 391; Chicago etc. R. Co. v. Erickson, 91 Ill. 615, 33 Am. Rep. 70, following Hannibal etc. Ry. Co. v. Husen, 95 U. S. 465.

Yeazel v. Alexander, 58 Ill. 254, was also at one time followed in Missouri, the statute in question prohibiting the importation, during certain seasons of all Texas or Mexican cattle: Wilson v. Kansas City etc. R. Co., 60 Mo. 184; Husen v. Hannibal etc. R. Co., 60 Mo. 226; Dimond v. Kansas City etc. R. Co., 60 Mo. 393; Mercer v. Kansas City etc. R. Co., 60 Mo. 397; Kenney v. Hannibal etc. R. Co., 62 Mo. 476. These cases were also overruled, the supreme court of the United States declaring such legislation unconstitutional in Hannibal etc. R. Co. v. Husen, 95 U. S. 465, which was followed by the Missouri court: Gilmore v. Hannibal etc. R. Co., 67 Mo. 323; Urton v. Sherlock, 75 Mo. 247.

Hannibal etc. R. Co. v. Husen, 95 U. S. 465, is the leading case on this subject. In the opinion of the court it is said: "The stat