Section 4059 of the Code of Iowa, which provides that a person
having in his possession "Texas cattle" shall be liable for any
damages which may accrue from allowing them to run at large and
thereby spread the disease known as the "Texas fever," is not in
conflict with the commerce clause of the Constitution of the United
States; nor is it a denial to citizens of other states of any
rights and privileges which are accorded to citizens of Iowa, and
thus in conflict with Subdivision 1 of Section 2 of Article IV of
the Constitution.
The Court stated the case as follows:
This case comes from the Circuit Court of the United States for
the Southern District of Iowa. It involves the validity of a
statute of that state making a person having in his possession
within it any Texas cattle which have not been wintered north of
the southern boundary of Missouri and Kansas liable for any damages
that may accrue from allowing them to run at large and thereby
spread the diseaase known as Texas fever. The statute is found in
§ 4059 of the Code of Ohio, which refers to the preceding
§ 4058. The two sections are as follows:
"SEC. 4058. If any person bring into this state any Texas
cattle, he shall be fined not exceeding one thousand dollars or
imprisoned in the county jail not exceeding thirty days unless they
have been wintered at least one winter north of the southern
boundary of the State of Missouri or Kansas,
provided that
nothing herein contained shall be construed to prevent or make
unlawful the transportation of such cattle through this state on
railways or to prohibit the driving
Page 129 U. S. 218
through any part of this state or having in possession any Texas
cattle between the first day of November and the first day of April
following."
"SEC. 4059. If any person now or hereafter has in his possession
in this state any such Texas cattle, he shall be liable for any
damages that may accrue from allowing said cattle to run at large
and thereby spreading the disease among other cattle known as the
Texas fever, and shall be punished as is prescribed in the
preceding section."
The action is based upon this latter section. The petition of
the plaintiff alleges that in June, 1885, the defendants were the
owners of and had in their possession and under their control a
herd of Texas cattle which had not been wintered north of the
southern boundary of Missouri or Kansas and which were purchased at
or near Fort Smith, in Arkansas; that said cattle, while in the
possession and under the control of the defendants, were allowed by
them to run at large in Union Township, Harrison County, Iowa,
contrary to the provisions of § 4059 of its code; and that the
said cattle were infected by a disease known as "Texas cattle
fever," which was spread and disseminated by them among the cattle
of the plaintiff, whereby they sickened and died, to his damage of
five thousand dollars, for which he prays judgment.
To this petition the defendants demurred on the grounds first
that §§ 4058 and 5049 are in conflict with Section 8,
Article I, of the Constitution of the United States in that the
Legislature of Iowa undertakes to regulate and interfere with
interstate commerce, and second that the sections are in conflict
with Section 2 of Article IV of the Constitution of the United
States relative to the privileges and immunities of citizens of the
several states.
The demurrer was heard at March term, 1888, of the circuit
court, the court being held by two judges who were opposed in
opinion upon the constitutionality of § 4059 on the grounds
mentioned. The plaintiff electing to stand upon his petition,
judgment was entered for the defendants sustaining the demurrer
according to the opinion of the presiding judge. Thereupon, on
motion of the plaintiff, it was ordered that the
Page 129 U. S. 219
points of disagreement be certified to this court, and upon this
certificate
* the case has
been heard.
MR. JUSTICE FIELD, after stating the facts as above, delivered
the opinion of the Court.
In order to understand § 4059 of the Code of Iowa, it must
be read in connection with the preceding section, 4058, to which it
refers. It must also be known what is meant by "Texas cattle," and
what influence a winter north has upon the disease called "Texas
Fever," with which such cattle are liable to be infected. Section
4058 is leveled against the importation of Texas cattle which have
not been wintered north of the southern boundary of Missouri or
Kansas. Any person bringing into the state Texas cattle, unless
they have been thus wintered, is subject to be fined or imprisoned.
When, therefore, § 4059 refers to the possession in the State
of any "such Texas cattle," it means cattle which have not been
wintered north, as mentioned in the preceding section. It is only
when they have not been thus wintered that apprehension is felt
that they may be infected with the disease and spread it among
other cattle.
The term "Texas cattle" is not defined in the Code of Iowa, and
whether used there to designate cattle from the State of Texas
alone or, as averred by the plaintiff in error, a particular breed
or variety called Mexican or Spanish cattle, which are also found
in Arkansas and the Indian Territory, is
Page 129 U. S. 220
not material for the disposition of this case. Cattle coming
from both of those states and from that territory during the spring
and summer months are often infected with what is known as "Texas
Fever." It is supposed that they become infected with the germs of
this distemper while feeding, during those months, on the low and
moist grounds of those states and territory, constituting what are
called their malarial districts, which are largely covered with a
thick vegetable growth. These germs are communicated to domestic
cattle by contact or by feeding in the same range or pasture.
Scientists are not agreed as to the causes of the malady, and it is
not important for our decision which of the many theories advanced
by them is correct. That cattle coming from those sections of the
country during the spring and summer months are often infected with
a contagious and dangerous fever is a notorious fact, as is also
the fact that cold weather, such as is usual in the winter north of
the southern boundary of Missouri and Kansas, destroys the virus of
the disease and thus removes all danger of infection. It is upon
these notorious facts that the legislation of Iowa for the
exclusion from their limits of these cattle unless they have passed
a winter north is based.
See Missouri Pacific Railway Company
v. Finley, 38 Kan. 556. Also First Annual Report to the
Commissioner of Agriculture of the Bureau of Animal Industry for
1884, p. 426, and Second Annual Report of same bureau for 1885,
310.
Section 4059, with which we are concerned, provides that any
person who has in his possession in the State of Iowa any Texas
cattle which have not been wintered north shall be allowing such
cattle to run at large, and thereby spread the disease. We are
unable to appreciate the force of the objection that such
legislation is in conflict with the paramount authority of Congress
to regulate interstate commerce. We do not see that it has anything
to do with that commerce. It is only leveled against allowing
diseased Texas cattle held within the state to run at large. The
defendants labor under the impression that the validity of §
4058, which is directed against the importation
Page 129 U. S. 221
into the state of such cattle unless they have been wintered
north, is before us, and that a consideration of its validity is
necessary in passing upon § 4059, but this is a mistake.
Section 4058 is before us only that we may ascertain from it the
meaning intended by certain terms used in the subsequent section
referring to it, and not upon any question of its
constitutionality.
Nor does the case of
Railroad Company v. Husen,
95 U. S. 465, upon
which the defendant relies with apparent confidence, have any
bearing upon the questions presented. The decision in that case
rested upon the ground that no discrimination was made by the law
of Missouri in the transportation forbidden between sound cattle
and diseased cattle, and this circumstance is prominently put forth
in the opinion. "It is noticeable," said the Court,
"that the statute interposes a direct prohibition against the
introduction into the State of all 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."
P.
95 U. S. 469.
It 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.
95 U. S. 473.
Such a statute, the Court held, was not a quarantine law nor an
inspection law, but a law which interfered with interstate
commerce, and therefore invalid. At the same time, the Court
admitted unhesitatingly that a state may pass laws to prevent
animals suffering from contagious or infectious diseases from
entering within it. P.
95 U. S. 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
Page 129 U. S. 222
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.
Railroad Company v. Husen gives no support to the
contention of the defendant. There is no necessary dependence of
the provisions of § 4059, imposing a civil liability, upon
those of § 4058 so that the one may not stand without the
other. If the criminal liability created by § 4058 is open to
doubt, which we do not affirm, the civil liability may remain for
the damages caused by the willful conduct designated in §
4059.
Packet Company v. Keokuk, 95 U. S.
80;
Allen v. Louisiana, 103 U. S.
80.
The case is therefore reduced to this: whether the state may not
provide that whoever permits diseased cattle in his possession to
run at large within its limits shall be liable for any damages
caused by the spread of the disease occasioned thereby, and upon
that we do not entertain the slightest doubt. Our answer,
therefore, to the first question upon which the judges below
differed is in the negative -- that the section in question is not
unconstitutional by reason of any conflict with the commercial
clause of the Constitution.
As to the second question, our answer is also in the negative.
There is no denial of any rights and privileges to citizens of
other states which are accorded to citizens of Iowa. No one can
allow diseased cattle to run at large in Iowa without being held
responsible for the damages caused by the spread of disease
thereby, and the clause of the Constitution declaring that the
citizens of each state shall be entitled to all privileges and
immunities of citizens in the several states does not give
nonresident citizens of Iowa any greater privileges and immunities
in that state than her own citizens there enjoy. So far as
liability is concerned for the act mentioned, citizens of other
states and citizens of Iowa stand upon the same footing.
Paul v.
Virginia, 8 Wall. 168. It follows that the judgment
below must be
Reversed, and the cause remanded for a new trial.
* The questions certified were as follows:
"1st. Is § 4059 of the Code of Iowa repugnant to and in
conflict with the provisions of Sec. 8 of Article I of the
Constitution of the United States relative to the regulation of
commerce among the several states, and by reason thereof
unconstitutional?"
"2nd. Is § 4059 of the Code of Iowa repugnant to or in
conflict with Sec. 2 of Article IV of the Constitution of the
United States relative to the privileges and immunities of citizens
in the several states, and by reason thereof unconstitutional?"
