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ute, approved January 23, 1872, by its first section, enacted as follows: 'No Texas, Mexican, or Indian cattle shall be driven or otherwise conveyed into, or remain in any county in this state, between the first day of March and the first day of November in each year, by any person or persons whatever.' A later section is in these words: 'If any person or persons shall bring into this state any Texas, Mexican, or Indian cattle, in violation of the first section of this act, he or they shall be liable, in all cases, for all damages sustained on account of disease communicated by said cattle.'. . . . It is noticeable that the statute interposes a direct prohibition against the introduction into the state of Texas, Mexican, or Indian cattle during eight months of each year, without any distinction between such as may be diseased and such as are not. It is true a proviso to the first section enacts that 'when such cattle shall come across the line of the state, loaded upon a railroad car or steamboat, and shall pass through the state without being unloaded, such shall not be construed as prohibited by the act, but the railroad company or owners of a steamboat performing such transportation shall be responsible for all damages which may result from the disease called the Spanish or Texas fever, should the same occur along the line of transportation; and the existence of such disease along the line of such route shall be prima facie evidence that such disease has been communicated by such transportation.' This proviso imposes burdens and liabilities for transportation through the state, though the cattle be not unloaded, while the body of the section absolutely prohibits the introduction of any such cattle into the state, with the single exception mentioned. . . . .

"The Missouri statute is a plain interference with such transportation, an attempted exercise over it of the highest possible powerthat of destruction. It meets at the borders of the state a large and common subject of commerce, and prohibits its crossing the state line during two-thirds of each year, with a proviso, however, that such cattle may come across the line loaded upon a railroad car or steamboat, and pass through the state without being unloaded. But even the right of steamboat owners and railroad companies to transport such property through the state is loaded by the law with onerous liabilities, because of their agency in the transportation. The object and effect of the statute are, therefore, to obstruct interstate commerce, and to discriminate between the property of citizens of one state and that of citizens of other states."'

The court then discussed the question of police power, holding that whatever might be its nature, it could not be exercised over a subject confided by the constitution exclusively to Congress; and continued: "Tried by this rule, the statute of Missouri is a plain intrusion upon the exclusive domain of Congress. It is not a quarantine law. It is not an inspection law. It says to all natural persons and to all transportation companies, 'You shall not bring into the state any Texas cattle or any Mexican cattle or Indian cattle, be

tween March 1st and December 1st in any year, no matter whether they are free from disease or not, no matter whether they may do an injury to the inhabitants of the state or not; and if you do bring them in, even for the purpose of carrying them through the state without unloading them, you shall be subject to extraordinary liabili ties.' Such a statute, we do not doubt, it is beyond the power of a state to enact. To hold otherwise would be to ignore one of the leading objects which the constitution of the United States was designed to secure.

"In coming to such a conclusion, we have not overlooked the decisions of very respectable courts in Illinois, where statutes similar to the one we have before us have been sustained: Yeazel v. Alexander, 58 Ill. 254. Regarding the statutes as mere police regulations, intended to protect domestic cattle against infectious disease, those courts have refused to inquire whether the prohibition did not extend beyond the danger to be apprehended, and whether, therefore, the statutes were not something more than exertions of police power. That inquiry, they have said, was for the legislature and not for the courts. With this we cannot concur. The police power of the state cannot obstruct foreign commerce or interstate commerce beyond the necessity for is exercise; and under color of it objects not within its scope cannot be secured at the expense of the protection afforded by the federal constitution."

In Kimmish v. Ball, 129 U. S. 217, 9 Sup. Ct. Rep. 277, the validity of an Iowa statute was involved, making a person having in his possession within that state any Texas cattle, which had not been wintered north of a certain boundary, liable for any damages which might accrue from allowing them to run at large and thus spread Texas fever. The court held that such enactment did not conflict either with the clause relative to the regulation of commerce, or with that relative to the privileges and immunities of citizens of the several states, and that the case of Railroad Co. v. Husen, 95 U. S. 465, did not have any bearing upon the question presented, the court saying that there no attempt was made to show that all Texas and Mexican cattle coming from the malarial districts during the months mentioned were infected with the disease, or that such cattle were so generally infected as to render it impossible to separate the healthy from the diseased. And they added that had such proof been given, a different question would have been presented for the consideration of the court.

A Kansas statute made any person who should ship into the state any cattle capable of communicating Texas fever, liable to anyone injured thereby, and provided that proof that such cattle came from south of a certain parallel of latitude should be prima facie evidence that they were, between prohibited dates, capable of communicating that disease; but that it should not apply if they were shown by a

certificate, as set forth therein, to have wintered north of a fixed parallel of latitude. It was held valid: Missouri etc. Ry. Co. v. Haber, 169 U. S. 613, 18 Sup. Ct. Rep. 488. Here, also, the case of Railroad Co. v. Husen, 95 U. S. 465, was relied on but it was distinguished on the ground that there the statute went beyond the necessities of the case, it excluding all Texas cattle, whether free from disease or not, or whether liable to injure inhabitants of the state or not, the court saying: "No such criticism can be made of the statute of Kansas. It does not prohibit the bringing into the state of all Texas cattle. It does not in any true sense prohibit or burden any commerce among the states specifically authorized by Congress, but, for purpose of self-protection only and in the exercise of its inherent power to protect the property of its people, declared that any corporation or person bringing into the state or driving into or through any county of the state, cattle liable to impart or capable of communicating Texas splenic or Spanish fever to domestic cattle, should be responsible in damages to anyone to whose cattle that disease was communicated by the cattle so brought into the state."

A state may enact a law prohibiting the importation of cattle diseased with the Texas fever, and such a law is valid and does not fall within the Husen case: Missouri Pac. Ry. Co. v. Finley, 38 Kan. 550, 16 Pac. 951.

In State v. Duckworth, 5 Idaho, 642, 95 Am. St. Rep. 199, 51 Pac. 456, the statute under construction provided that before sheep could be brought into that state they should be dipped twenty miles from the state line, if healthy, once, if infected, twice. This was held to interfere with interstate commerce, as no sheep could be shipped over any transportation lines in Idaho without first unloading the sheep, and having a sheep inspector inspect and dip them. It was also held unconstitutional as discriminating against outside sheep, by imposing more stringent regulations on the owners of such sheep, as requiring them to be dipped during the winter months was practically a prohibition against bringing any sheep into the state during that time.

The power to prevent the importation of diseased cattle into a state, and the power to prevent the transportation through a state, rest upon different principles. The former is allowed, as a valid exercise of police power, the latter is forbidden as interfering with interstate commerce. The state may, however, prescribe the manner and mode of transporting cattle through its territory, in order to prevent the spread of disease and contagion: Grimes v. Eddy, 126 Mo. 168, 47 Am. St. Rep. 653, 28 S. W. 756; Selvege v. St. Louis etc. R. Co., 135 Mo. 163, 36 S. W. 652.

A statute of the United States providing that no person shall drive on foot or transport in private conveyance from one state to another any livestock, knowing them to be affected with a contagious disease

is within the power of Congress to regulate interstate commerce: United States v. Slater, 123 Fed. 115.

II. United States and State Statutes.

The transportation of livestock from one state to another, being a braneb of interstate commerce, is controlled by such enactments as Congress may see fit to make, and these will render nugatory all state statutes dealing with the same subject matter, whether formally abrogated or not. But where Congress has not legislated upon the whole subject matter, it is competent for a state to pass laws covering such matter: Reid v. Colorado, 187 U. S. 137, 23 Sup. Ct. Rep. 92, affirming 29 Colo. 333, 95 Am. St. Rep. 69, 68 Pac. 228. Where there is no conflict, the different statutes and regulations are intended to operate concurrently: Missouri etc. Ry. Co. v. Haber, 56 Kan. 694, 44 Pac. 632, affirmed, 169 U. S. 613, 18 Sup. Ct. Rep. 488. After cattle have become domiciled within a state, their management is governed by its laws, and not by act of Congress: Mullen v. Western Union Beef Co., 9 Colo. App. 497, 49 Pac. 425.

Where an act of Congress provided that the Department of Agriculture should prepare regulations for suppressing disease among cattle, that the co-operation of the different states should be invited in attaining that object, and empowering the secretary of agriculture to make certain expenditures for stamping out the disease, upon any state accepting his plans, it was held that these rules and regulations would be ineffective unless a state interested should cooperate with him in their enforcement: Mullen v. Western Union Beef Co., 9 Colo. App. 497, 49 Pac. 425; and according to that case the Secretary cannot make rules, upon compliance with which cattle may be removed from the territory in which the contagion exists to other parts of the United States, where the statute under which he acts merely prohibits the transportation of infected cattle, known to be so, making a violation thereof a misdemeanor, and directing the secretary to notify transportation officials doing business in an infected locality of the existence of the contagion. A mere notice of the existence of the disease, and a statement that it is a violation of the law to receive cattle infected thereby, is sufficient, and the order of the Department of Agriculture need not specify any partieular district or declare within what specific territory a quarantine has been established: United States v. Slater, 123 Fed. 115.

An act of Congress relating to the exportation of diseased cattle and suppression of diseases refers only to interstate shipments and not to those made between different points in the same state: Davis v. Texas etc. Ry. Co., 12 Tex. Civ. App. 427, 54 S. W. 144.

III. Sanitary Boards and Commissions.

Officers or boards have been appointed in the different states for the purpose of protecting their domestic cattle from the ravages of

disease. In Texas the board is known as the "State Livestock Sanitary Commission." Such commission may forbid the importation of cattle from other localities in which disease has broken out, and its regulations do not conflict with the interstate commerce clause: St. Louis etc. Ry. Co. v. Smith, 20 Tex. Civ. App. 451, 49 S. W. 627. Where the statute referring to the movement of livestock provided that the quarantine regulations of the commission should not apply between certain times of each year to the moving of livestock within the state limits, the commission had no authority to prohibit the driving of such stock on a date falling within the times above mentioned, and doing so constituted no offense: Roberson v. State, 38 Tex. Cr. Rep. 507, 43 S. W. 989. By statute in Texas the quarantine line fixed by the livestock sanitary commission against Texas fever, must conform with the federal quarantine line established by the Department of Agriculture: Fort Worth etc. R. Co. v. Masterson, 95 Tex. 262, 66 S. W. 833, and if it does not it is void: Trent v. State (Tex. Cr. App.), 75 S. W. 857.

The livestock sanitary commission has the powers of an inferior tribunal, which, being summary and not according to the course of the common law, must be strictly observed. So where an act provides that a sheriff can seize and quarantine cattle on a "complaint" that such cattle are liable to impart Texas fever, a communication that the sanitary commission requests him to quarantine certain cattle is not a complaint, and he cannot justify under it when sued in replevin for the cattle: Asbell v. Edwards, 63 Kan. 610, 66 Pac. 641. Possession by a sheriff of cattle under an order of the sanitary commission is prima facie a sufficient justification to him in taking and holding them: Hardwick v. Brookover, 48 Kan. 609, 30 Pac. 21. The proceedings had upon a complaint to the sheriff are not, however, conclusive with respect to the animals, or upon their owners, who may show in replevin or trover that their cattle do not fall within the provisions of the statute: Verner v. Bosworth, 28 Kan. 670; Wilcox v. Johnson, 34 Kan. 655, 9 Pac. 670.

In order for the report and rules of a board of livestock commissioners to constitute a justification in a replevin suit to recover cattle seized thereunder, such rules and proclamation must be shown to have been authorized by law and necessary: Pierce v. Dillingham, 203 Ill. 148, 67 N. E. 846, affirming 96 Ill. App. 300. In that case a statute empowered the board to request the governor to issue a proclamation against the importation of livestock when a contagious disease had become epidemic among livestock in other states, or their condition made them liable to convey such disease. This was held not to be complied with where the request to the governor stated that a certain disease "prevailed to a greater or less extent" among the dairy and breeding herds of all the states and territories, and that cattle affected thereby were dangerous and liable to communicate disease.

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