Smith v. St. Louis & Southwestern Railway Co. ( 1901 )

Me. Justicio MgKehNa,

after making the foregoing statement, delivered the opinion of the court.

There are other questions in the record besides the Federal one, upon which the writ of error is based. They seem not to have been earnestly pressed either in the trial court or in the Court of Civil Appeals. They were not passed on by either court. The Court of Civil Appeals, however, said:

“ It was shown that appellee’s vendors had actual. notice of the quarantine, and that appellant had not. It was also shown that after such notice was brought home to appellant it sought permission of the sanitary commission to deliver the cattle. The sanitary commission ruled and ordered otherwise. It has been given power to make rules. It has the power to call upon the sheriff and peace' officers to enforce them. It was the duty of such officers to obey the orders of such commission. ' Our 'law also provides heavy penalties for a violation of the rules and regulations of the sanitary commission.”

It is possible that the court may have concluded that the de-fence which those facts suggest could not be made by the railway company, and that, notwithstanding, the plaintiff in error could compel the company to receive his cattle and force it to contest the constitutionality of the Texas statute either by resisting the imposition of its penalties or in some other way. At any rate, the court rested its decision on the statute, holding it valid, and it is its judgment which we are called upon to review.

To what extent the police power of a State may be exerted on traffic and intercourse with the State without conflicting with the commerce clause of the Constitution of the United States has not been precisely defined. In the case of Henderson v. Mayor of New York, 92 U. S. 259, it was .held that the statute of the State, which, aiming,to secure indemnity against persons coining from foreign countries becoming a charge upon the State, required ship owners to pay a fixed sum for each passenger — that is, to pay for all passengers — not limiting the payment to those who might actually become such charge, was void. “Whether the statute would have been valid if so limited was not decided.

In Chy Lung v. Freeman et al., 92 U. S. 275, a statute declaring the same purpose as'the New York statute, and apparently directed against persons mentally and physically infirm, and against convicted criminals and immoral women, was also declared void, because it imposed conditions on all passengers and invested a discretion in officers which could be exercised against all passengers. The court, by Mr. Justice Miller, said:

“ We are not called upon by this statute to decide for or against the fight of a State, in the absence óf legislation by Congress, to protect herself by necessary and proper laws against paupers and convicted criminals from abroad; nor to lay down the definite- limit of such right if it exists. Such a right can only arise from a vital necessity for its exercise, and cannot be carried beyond the scope of that necessity. • When'a state statute, limited to provisions necessary and appropriate to that object alone, shall, in a proper controversy, come before us, it will be time enough to decide that question.”

In Railroad Company v. Husen, 95 U. S. 465, a statute of Missouri which provided that “no Texas, Mexican or Indiah-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 whatever,” was held to bo in conflict with the clause of the Constitution Avhich gives to Congress the power to regulate interstate ' commerce.

The case was an action for damages against the railroad company for bringing cattle into the State in violation of the act. A distinction was made between a proper and an improper exertion' of the police power of the State. The former was confined to.the prohibition of actually infected'' or diseased cattle and to regulations not transcending such prohibition. The statute was held not to be so-confined, and hence was declared invalid.

The relation of the police power of a State and the power of Congress to regulate commerce came up again in Bowman v. Chicago & Northwestern Railway, 125 U. S. 465. The principle which underlies both powers and the range and operation of those powers was considered. The action was against the rail- ■ road company for refusing to transport beer from Chicago to .Marshalltown in Iowa. The refusal was attempted to be justified under a statute of Iowa against traffic in intoxicating liquors. and the conveyance of the same by an express or railway company into the State except under certain conditions. The statute was decided to be a regulation of commerce — to be not within the police power, pf the State’ and therefore void. Leisy v. Hardin, 135 U. S. 100, is of the same general character, and need ‘not be commented.upon. See also Scott v. Donald, 165 U. S. 58.

In Schollenberger v. Pennsylvania, 171 U. S. 1, some prior cases were reviewed, and the court, speaking by Mr. Justice Peckham, said:

“ The general "rule to be deduced from the decisions of this court is that a lawful article of commerce cannot be wholly excluded from importation into a State from another State where it was manufactured or .grown. A State has power to regulate the introduction of any article, including a food product, so as to insure purity of the article imported, but such police power does not include the total, exclusion even of an article of food.

“In Minnesota v. Barber, 136 U. S..313, it was held that an inspection law relating to an article of food was not a rightful exercise of the police power of the State if the inspection prescribed were of such a character or .if it were burdened with ' such conditions as .-Would wholly prevent the introduction of the .sound article from other States. This was. held in relation to the slaughter of animals whose meat was to be sold as food in the State passing the so-called inspection law. The principle was affirmed in Brimmer v. Rebman, 138 U. S. 78, and in Scott v. Donald, 165 U. S. 58, 97.”

The exclusion in the case at bar is not as complete as in the cited cases. That, however,- makes no difference if it is within, their principle, and their principle does not depend upon,.the number of States' which are embraced in the exclusion. It depends upon whether the police power of the-State has-been exerted beyond its province — exerted to regulate interstate.com--merce — exerted to exclude, without discrimination, the good and the bad, the healthy and the diseased, and to an extent beyond what is necessary for any proper quarantine. The words in italics express an important qualification.- The prevention of ' disease is the essence of a quarantine law. Such law is directed not only to tbe actually diseased but to what has become exposed to disease. In Morgan's Steamship Co. v. Louisiana Board of Health, 118 U. S. 455, the quarantine system of Louisiana was sustained. It established a quarantine below New Orleans, provided health officers and inspection officers, and fees for them to be paid by the ships detained and inspected. The system was held to be a proper exercise of the police -power of the State for the protection of health, though some of its rules amounted to regulations of commerce with foreign nations and among the States. In Kimmish v. Ball, 129 U. S. 217, certain sections of the laws of Iowa were passed on. One of them imposed a penalty upon any person who should bring into the State any Texas cattle unless. they had been wintered at least one winter north of the southern boundary of the State of Missouri or Kansas; or should have in his possession any Texas cattle between the first day of November and the first day of April following. Another section made any person having in his possession such cattle liable for any damages which might accrue from allowing them to run at large, “ and thereby spreading the disease among other cattle, known as the Texas fever,7’ and' there was besides criminal punishment. The court did not pass upon the first section. In commenting upon the second, some pertinent remarks were made on the facts which justified the statute, and the case of Railroad Company v. Husen, supra, was explained. It was said that the case “interpreted the law of Missouri as saying to all transportation companies, £ You shall not bring into the State any Texas cattle or any Mexican cattle or Indian cattle between 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 liabilities.’ p. 473. Such a statute, the'court held, was not a quarantine law, rior an inspection law, but a law which interfered with interstate commerce,- and therefore invalid. At the same timé tbe' court admitted unhesitatingly that a State may pass laws .to prevent animals suffering from contagious or infectious diseases from entering within it. p. 472. No attempt was made to show that all Texas, Mexican, or Indian cattle coming from the malarial' districts during the months mentioned were infected with the disease, or that such cattle were so generally infected that it would have been impossible to separate the healthy from the diseased. Had such proof been given, a different question would have been presented for the consideration of the court. Certainly all animals thus infected may be excluded from the State by its laws until they are cured of the disease, or' at least until some mode of transporting them without danger of spreading it is devised.”

In Missouri, Kansas & Texas Railway v. Haber, 169 U. S. 613, the Husen case was again commented upon, and what the law of Missouri was and was not was again declared. A statute of Kansas, however, which made any person who shall drive or ship into the State “ any cattle liable or capable of communicating Texas, splenetic or Spanish fever to any domestic "cattle of the State liable for damages,” was held not to be a regulation of commerce. It was also held that the statute was not repugnant to the act of Congress of March 29, 1884, 23 Stát. 31, c. 60, known as the Animal Industry Act.

What, however, is a proper quarantine law — what a proper inspection law in'regard to cattle — has not been^declared. Under the guise of either a regulation of commerce will not be permitted. Any pretense or masquerade will He disregarded, and the true purpose of a statute ascertained, Henderson v. Mayor of New York, and Chy Lung v. Freeman, supra. But we are not now put to any inquiry of that kind. The good faith and sincerity of the Texas officers cannot be doubted, and the statutes under which they acted cannot be justifiably complained of. The regulations prescribed are complained of, but are they not reasonably adaptive to the purpose of the statutes —not in excess of it ? Quarantine regulations cannot be the •same for cattle as for persons, and must vary with the nature of the disease to be defended against. As the Supreme Court of Tennessee said: “ The necessities of such cases often require prompt action. If too long delayed the end to be attained by tbe exercise of the power to declare a quarantine may be defeated and irreparable injury done.” '

It is urged that it does not appear that the action of the Live Stock Sanitary Commission was taken on sufficient information. It does not appear that it was not, and the presumption which the law attaches to the acts of public officers must obtain and prevail. The plaintiff in error relies entirely on abstract right, which he seems to think cannot depend upon any circumstances or be affected by them. This is a radical mistake'. It is the óharacter of the circumstances which gives or takes from a law or regulation of quarantine a legal quality. In some cases the circumstance would have to be shown to sustain the quarantine, as was said in Kimmish v. Ball, supra. But the presumptions of the law are' proof, and such presumptions exist in the pending case arising from the provisions of and the duties enjoined by the statute and sanction the action of the sanitary commission and the Governor of the .State. If they could have been they should have been met and overcome, and the remarks of the Court of Civil Appeals become pertinent:

“ The facts in this case are not disputed. The plaintiff sues as for a conversion, because of.a refusal to deliver his- cattle at Fort "Worth. It is necessary to his recovery that he show that it was the legal duty of the defendant company to make such delivery. It is for the breach of this alleged duty he sues; yet it nowhere appears from the record that before the quarantine line in question was established the sanitary commission did not make the most careful and thorough investigation into the necessity therefor' if, indeed, that matter could in any event be inquired into. So far as the record shows, every animal of the kind prohibited in the State of Louisiana may have been actually affected with charbon or anthrax, and it is conceded {¡hat this is a disease different from Texas or splenetic fever, and that it is contagious and infectious and of the most virulent character,”

Judgment affirmed.