been herded, or brought into contact, with state board of sanitary inspection to inspect "§ 2. It shall be unlawful for any person, association, or corporation to bring or drive, or cause to be brought or driven, into this state, between the first day of April and the first day of November, any cattle or horses from a state, territory, or county, south of the 36th parallel of north latitude, unless said cattle or horses have been held at some place north of the said parallel of latitude for a period of at least ninety days prior to their importation into this state, or unless the person, association, or corporation owning or having charge of such cattle or horses shall procure from the state veterinary sanitary board a certificate, or bill of health, to the effect that said cattle or horses are free from all infectious or contagious diseases, and have not been exposed, at any time within ninety days prior there to, to any of said diseases. The expense of any inspection connected herewith to be paid by the owner or owners of such cattle or horses. "§ 3. Any person violating the provision of this act shall be deemed guilty of a misdemeanor, and shall, on conviction, be punished by a fine of not less than five hundred (500) dollars, nor more than five thousand (5,000) dollars, or by imprisonment in the county jail for a term of not less than six months, and not exceeding three years, or by both such fine and imprisonment. a certificate or bill of health to the effect that the cattle were free from all infectious or contagious diseases, the defendant said "that the state board of sanitary inspection, through one of their inspectors, had inspected the cattle against his will and desire, but that he had not obtained from the board any certificate or bill of health whatsoever. But he said that he immediately theretofore had had the cattle inspected by a duly authorized inspector of the Bureau of Animal Industry of the United States, at Hereford, in the state of Texas, and had obtained a certificate from him to the effect that the same were free from any infectious or contagious disease; that the reason he could not get a certificate or bill of health from the state board of Colorado was because he would not pay the expense of such inspection, and because he had opposed such inspection as unnecessary and without any warrant in law." When refusing his assent to the state inspection, Reid showed to the state authorities what he called a "United States certificate." exist The certificate was signed by "Arthur C. Hart, Ass't Inspector, Bureau of Animal Industry." That officer certified that he had carefully inspected the cattle in question at Hereford, Texas, and found them "free from Texas or splenetic fever infection (*boophilus bovis), or any other infec-[141] tious or contagious disease," and that "no Texas fever infection is known to where they have been kept or on the trail over which they have passed." Below the signature of the assistant inspector was the following unsigned printed memorandum: "Animals which have been inspected and certified by an inspector of the U. S. Bureau of Animal Industry, and are free from disease, have the right to go into any state and be sold for any purpose, without further inspection or the exaction of fees." " 4. If any person, association, or corporation shall bring, or cause to be brought, into this state, any cattle or horses, in violation of the provisions of sections 1 or 2 of this act, or shall, by false representation, procure a certificate of health, as provided for in section 2 of this act, he or they shall be liable, in all cases, for all damages sustained on account of disease communicated by or from said cattle or horses; judgment for damages in any such case, together with 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 of said cattle or horses, or so many thereof [140] as may be necessary to satisfy said judgments and costs. Such sale shall be conducted as other sales under execution." Colo. Sess. Laws 1885, p. 335. The defendant asked the court to instruct the jury: That it was unnecessary for the defendant to procure from the Colorado veterinary sanitary board a certificate or bill of health 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 destination in Wyoming, without being first insnected as required by the statute of the former state. The provisions of the Colorado statute were ignored altogether as invalid legislation. Being asked by one of the witnesses whether he had or not allowed the mulgated by the Department of Agricul- for the further reason that he, the said de- | *and ascertain whether that statute has the[143 The statute is entitled "An Act for the Establishment of a Bureau of Animal Industry, to Prevent the Exportation of Diseased Cattle, and to Provide Means for the Suppression and Extirpation of Pleuropneumonia and Other Contagious Diseases among Domestic Animals." That the Colorado statute, approved March 21st, 1885, and under which defendant was prosecuted, was repugnant to the provision of the Constitution of the United States giving Congress power to regulate By the 1st section the Commissioner of commerce among the states, as well as to Agriculture is directed to organize in his dethe provision declaring that the citizens of partment a Bureau of Animal Industry, to each state shall be entitled to all the privi-appoint a chief thereof, who shall be a comleges and immunities of citizens in the sev-petent veterinary surgeon, and whose duty eral states, and was null and void, as im- it shall be "to investigate and report upon posing unnecessary and unlawful burdens the condition of the domestic animals of the and restrictions upon interstate commerce. United States, their protection and use, and [142] *The court refused to so instruct the jury, also inquire into and report the causes of but instructed them that if they believed contagious, infectious, and communicable from the evidence, beyond a reasonable diseases among them, and the means for the doubt, that the defendant did, on or about prevention and cure of the same, and to colthe 20th day of June, 1901, that is, between lect such information on these subjects as the 1st day of April and the 1st day of No-shall be valuable to the agricultural and vember of that year, "unlawfully bring or commercial interests of the country." § 1 drive, or cause to be brought or driven, into [U. S. Comp. Stat. 1901, p. 299]. the state of Colorado, and into the county of By the 2d section the Commissioner is auArapahoe, the cattle as mentioned in the in-thorized to appoint two competent agents, formation or any part thereof, from certain practical stock raisers or experienced busicounties south of the 36th parallel, north ness men familiar with questions pertaining latitude; and that said cattle had not been to commercial transactions in live stock, held theretofore at some place north of said whose duty it shall be, under the instrucparallel of latitude for a period of at least tions of the Commissioner, "to examine and ninety days prior to the importation of said report upon the best methods of treating, cattle into said state of Colorado; and that transporting, and caring for animals, and the said defendant had not procured from the means to be adopted for the suppression the state veterinary sanitary board of Colo- and extirpation of contagious pleuro-pneurado a certificate or bill of health, to the monia, and to provide against the spread of effect that said cattle were free from infec-other dangerous contagious, infectious, and tious or contagious diseases, and to the ef- communicable diseases." § 2 [U. S. Comp. fect that the same had not been exposed at Stat. 1901, p. 300]. any time within ninety days prior thereto The 3d section makes it "the duty of the to any of said diseases; and that then and Commissioner of Agriculture to prepare there the said defendant did refuse and de- such rules and regulations as he may deem cline to procure, or permit anyone for him necessary for the speedy and effectual supto procure, such certificate or bill of pression and extirpation of said diseases, health, and did refuse and decline to pay or and to certify such rules and regulations to allow, or suffer or permit anyone for him the executive authority of each state and to pay, the expense of any inspection so as by the act prescribed, then and in that event it is your duty to find the defendant guilty as charged in this information." territory, and invite said authorities to cooperate in the execution and enforcement of this act." And "whenever the plans and methods of the Commissioner of Agriculture The contention here of the defendant is shall be accepted by any state or territory substantially that the subject of the trans-in which pleuro-pneumonia or other contaportation of cattle from one state to an-gious, infectious, or communicable disease is oher has been so far covered by the act of declared to exist, *or such state or territory [144] Congress known as the animal industry act of May 29th, 1884 (23 Stat. at L. 31, chap. 60, U. S. Comp. Stat. 1901, p. 299), that, after its passage, no enactment by the state upon the same subject was permissible; and that, even in the absence of legislation by Congress, the Colorado statute is invalid, in that, by its natural or necessary operation, it unreasonably obstructs that freedom of commerce among the states which the Constitution established. These questions are recognized by the court as of great importance, and have received its most careful consideration. shall have adopted plans and methods for the suppression and extirpation of said diseases, and such plans and methods shall be accepted by the Commissioner of Agriculture, and whenever the governor of a state signify their readiness to co-operate for the or other properly constituted authorities extinction of any contagious, infectious, or communicable disease in conformity with the provisions of this act, the Commissioner of Agriculture is hereby authorized to expend so much of the money appropriated by this act as may be necessary in such investigations, and in such disinfection and quarantine measures as may be necessary to preTaking 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]. [U. S. Comp. Stat. 1901, p. 3184.] In order to promote the exportation of persons operating any such railroad, or live stock from the United States," the master or owner of any boat or vessel, or Commissioner was directed to "make spe-owner or custodian of or person having concial investigation as to the existence of trol over such cattle or other live stock pleuro-pneumonia, or any contagious, infec- within such infected district, who shall tious, or communicable disease, along the knowingly violate the provisions of section dividing lines between the United States 6 of this act, shall be guilty of a misde 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 nor 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 imprisonment. of the Treasury, who shall, from time to time, establish such regulations concerning the exportation and transportation of live stock as the results of said investigations may require" (8 4 [U. S. Comp. Stat. 1901, p. 31831); and that "to prevent the exportation from any port of the United States to any port in a foreign country of live stock affected with any contagious, infectious, or communicable disease, and especially pleuro-pneumonia," the Secretary of the Treasury was authorized to take such steps and adopt such measures, not inconsistent with the provisions of the act, as he might deem necessary. § 5 [U. S. Comp. Stat. 1901, p. 3183]. be "§ 8. That whenever any contagious, infectious, or communicable disease affecting domestic animals, and especially the disease known as pleuro-pneumonia, shall brought into or shall break out in the District of Columbia, it shall be the duty of the commissioners of said District to take measures to suppress the same promptly and to prevent the same from spreading; and for this purpose the said commissioners are hereby empowered to order and re-[146] quire that any premises, farm, or farms where such disease exists or has existed, be put in quarantine; to order all or any animals coming into the District to be detained at any place or places for the purpose of inspection and examination; to prescribe regulations for and to require the destruction of animals affected with contagious, infectious, or communicable disease, and for the proper disposition of their hides and carcasses; to prescribe regulations for disinfection, and such other regulations as they may deem necessary to prevent infection or contagion being communicated, and shall report to the Commissioner of Agriculture whatever they may do in pursuance of the provisions of this section. [U. S. Comp. Stat. 1901, p. 3184.] By another section of the act all railroad companies within the United States, or the owners or masters of any steam or sailing vessel or other vessel or boat, were forbidden to receive for transportation or transport from one state or territory to another, or from any state into the District of Columbia, or from the District into any state, "any live stock affected with any contagious, infectious, or communicable disease, and especially the disease known as pleuro[145] pneumonia; nor shall *any person, company, or corporation deliver for such transportation to any railroad company, or master or owner of any boat or vessel, any live stock, "S 9. That it shall be the duty of the sevknowing them to be affected with any con-eral United States district attorneys to tagious, infectious, or communicable disease; nor shall any person, company, or corporation drive on foot or transport in private conveyance from one state or territory to another, or from any state into the District of Columbia, or from the District into any state, any live stock, knowing them to be affected with any contagious, infectious, or communicable disease, and especially the disease known as pleuro-pneumonia: Provided, That the so-called splenetic or Texas fever shall not be considered a contagious, infectious, or communicable disease within the meaning of sections 4, 5, 6, and 7 of this act, as to cattle being transported by rail to market for slaughter, when the same are unloaded only to be fed and watered in lots on the way thereto." § 6 [U. S. Comp. Stat. 1901, p. 3184]. Other provisions of the act are as follows: prosecute all violations of this act which shall be brought to their notice or knowledge by any person making the complaint under oath; and the same shall be heard before any district or circuit court of the United States or territorial court holden within the district in which the violation of this act has been committed." [U. S. Comp. Stat. 1901, p. 3185.] 23 Stat. at L. 31, chap. 60 (U. S. Comp. Stat. 1901, p. 299). It may be here stated that by the act of February 9th, 1889, the Department of Agriculture was made one of the Executive Departments of the government, and placed under the supervision and control of a Secretary of Agriculture (25 Stat. at L. 659, chap. 122, U. S. Comp. Stat. 1901, p. 285), and that by the act of July 14th, 1890, the Secretary was vested with all the authority which by the above act of May 29th, 1884. was conferred upon the Commissioner of Agriculture. 26 Stat. at L. 282, chap. 707. "S7. That it shall be the duty of the 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 prop states. erly be deemed a regulation of such com-propriated by Congress could be used in merce, is paramount throughout the Union. conducting the required investigations, and So that when the entire subject of the in such disinfection and quarantine meastransportation of live stock from one state ures as might be necessary to prevent the to another is taken under direct national spread of the diseases in question from one supervision, and a system devised by which state or territory into another. Congress diseased stock may be excluded from inter- did not intend to override the power of the [147] 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 undertake 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 offi. S. 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 New 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 sutional 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, 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 certificate 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. Haber, 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 [149 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 thereeases" 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 pre[148]*adopted 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 Department approved, then the money ap eases. Another subject embraced by the act of Congress related to the exportation from Our conclusion is that the statute of Colorado as here involved does not cover the same ground as the act of Congress, and therefore is not inconsistent with that act; and its constitutionality is not to be questioned unless it be in violation of the Constitution of the United States, independenty of any legislation by Congress. The latter question we now proceed to examine. ports of the United States to ports in for- His knowledge as to the actual condition of Certain principles are well settled by the Still another subject covered by the act is the driving on foot or transporting from one state or territory into another state or territory, or from any state into the District of Columbia, or from the District into any state, of any live stock known to be affected with any contagious, infectious, or communicable disease. But this provision does not cover the entire subject of the Husen, 95 U. S. 465, 472, 24 L. ed. 527, transporting or shipping of diseased live 531. Again, the acknowledged police pow- Now, it is said that the defendant has a stock from one state to another. The owner of such stock, when bringing them into another state, may not know them to be diseased; but they may, in fact, be diseased, or the circumstances may be such as fairly to [150]authorize the state into which they are about to be brought to take such precautionary measures as will reasonably guard its own domestic animals against danger from contagious, infectious, or communicable diseases. The act of Congress left the state free to cover that field by such regulations as it deemed appropriate, and which only incidentally affected the freedom of interstate commerce. Congress went no farther than to make it an offense against the United States for any one knowingly to take or send from one state or territory to another state or territory, or into the District of Columbia, or from the District into any state, live stock affected with infectious or communicable disease. The animal in-ple and their property against such dangers, dustry act did not make it an offense against the United States to send from one state into another live stock which the ship per did not know were diseased. The offense charged upon the defendant in the Is the statute of Colorado liable to the state court was not the introduction into objection just stated? Can the courts hold Colorado of cattle that he knew to be dis-that upon its face it unreasonably obstructs eased. He was charged with having the exercise of the general right sccured by brought his cattle into Colorado from cer- the Constitution to ship or send recognized tain counties in Texas, south of the 36th articles of commerce from one state to anparallel of north latitude, without said cat-other without interference by local authortle having been held at some place north of ity? Those questions must be answered in said parallel of latitude for at least the the negative. The Colorado statute, in eftime required prior to their being brought fect, declares that live stock coming between into Colorado, and without having procured the dates and from the territory specified from the state veterinary sanitary board a are ordinarily in such condition that their certificate or bill of health to the effect that presence in the state may be dangerous to his cattle, in fact, were free from all in-its domestic animals; and hence the refectious or contagious diseases, and had not quirement that before being brought or sent been exposed at any time within ninety into the state they shall either be kept at days prior thereto to any such diseases, but had declined to procure such certificate or have the inspection required by the statute. taking care always that the means employed some place north of the 36th parallel of |