Article 5043
c of the Revised Statutes of Texas, 1895,
provides:
"It shall be the duty of the commission provided for in article
5043
a to protect the domestic animals of this state from
all contagious or infectious diseases of a malignant character,
whether said diseases exist in Texas or elsewhere, and for this
purpose they are hereby authorized and empowered to establish,
maintain and enforce such quarantine lines and sanitary rules and
regulations as they may deem necessary. It shall also be the duty
of said commission to cooperate with livestock quarantine
commissioners and officers of other states and territories and with
the United States Secretary of Agriculture in establishing such
interstate quarantine lines, rules, and regulations as shall best
protect the livestock industry of this state against Texas or
splenetic fever. It shall be the duty of said commission, upon
receipt by them of reliable information of the existence among the
domestic animals of the any malignant disease, to go at once to the
place where any such disease is alleged to exist and make a careful
examination of the animals believed to be affected with any such
disease, and ascertain, if possible, what, if any, disease exists
among the livestock reported to be affected, and whether the same
is contagious or infectious, and if said disease is found to be of
a malignant, contagious, or infectious character, they shall direct
and enforce such quarantine lines and sanitary regulations as are
necessary to prevent the spread of any such disease. And no
domestic animals infected with disease or capable of communicating
the same, shall be permitted to enter or leave the district,
premises, or grounds so quarantined except by authority of the
commissioners. The said commission shall also, from time to time,
give and enforce such directions and prescribe such rules and
regulations as to separating, feeding and caring for such diseased
and exposed animals as they shall deem necessary to prevent the
animals so affected with such disease from coming in contact with
other animals not so affected. And the said commissioners are
hereby authorized and empowered to enter upon any grounds or
premises to carry out the provisions of this act."
Held that this statute, as construed and applied, in
this case, is not in conflict with the Constitution of the United
States.
The prevention of disease is the essence of a quarantine law.
Such law
Page 181 U. S. 249
is directed not only to the actually diseased, but what has
become exposed to disease.
This case involves the constitutionality of certain quarantine
regulations of the State of Texas. The laws of Texas provide for
the creation of a livestock sanitary commission, consisting of
three members appointed by the Governor, and prescribe their duty.
The particular provisions which are material to the case are
inserted in the margin.
*
The Governor of the state issued the following proclamation:
"Whereas the Livestock Sanitary Commission of Texas
Page 181 U. S. 250
has this day recommended the adoption of the following
regulations:"
" The Livestock Sanitary Commission of the State of Texas have
been reliably informed that the cattle, mules, and horses in the
southern portion of Jefferson County, State of Texas, are affected
with disease known as charbon or anthrax, and are liable to impart
such disease to cattle, mules, and horses ranging in upper portion
of Jefferson and other counties, from this time forth to the 15th
day of November, 1897, no cattle, mules, or horses are to be
transported or driven north or west of Taylor and Salt Bayous, said
bayous running across the southern portion of Jefferson County,
State of Texas. This order is given for the purpose of quarantining
all cattle, mules, and horses south and east of said Taylor and
Salt Bayous. The Texas Livestock Commission has reason to believe
that charbon or anthrax has or is liable to break out in the State
of Louisiana; from this time forth until the 15th day of November,
1897, no cattle, mules, or horses are to be transported or driven
into the State of Texas from the State of Louisiana. The Livestock
Sanitary Commission of the State of Texas hereby order that any
violation of any of the aforesaid rules and regulations by moving
of any cattle, mules, or horses north of said bayous or out of
Louisiana into the State of Texas is contrary to said rules and
regulations, and shall be an offense, and punishable as provided by
the laws of the State of Texas."
"Now, therefore, I, C.A. Culberson, Governor of Texas, in
conformity with the provisions of chapter 7, title 102, of the
Revised Statutes of Texas of 1895, do hereby declare that the
quarantine lines, rules, and regulations set forth in the
above-recited order of the Livestock Sanitary Commission of Texas
shall be in full force and effect from and after this date."
"In witness whereof I have hereunto set my hand and caused the
seal of the state to be affixed at Austin, this 5th day of June,
A.D. 1897."
"C.A. Culberson"
"
Governor of Texas"
In consequence of this proclamation, the railway company
Page 181 U. S. 251
refused to deliver certain cattle to their owners, of whom the
plaintiff in error was one, which it had received as freight from a
connecting carrier, and which had been delivered to the latter in
the State of Louisiana. The facts, or as many of them as is
necessary to state, are as follows:
The shipment of cattle was made upon a through bill of lading
issued by the St. Louis & Southwestern Railway Company at Plain
Dealing, La., for Fort Worth, Tarrant County, Texas, and was a
through and continuous shipment. The cattle arrived at Forth Worth
on the 28th of August, 1897. The owners were ready to receive them,
and tendered the amount of freight due thereon. The tender was
rejected and the delivery of the cattle refused. The cattle
remained in the pens of the plaintiff in error, the stockyards at
Fort Worth refusing to receive them on account of the proclamation
of the Governor, and permission, which was asked by the railway
company of the Livestock Sanitary Commission, to deliver them to
their owners was also refused on account of the Governor's
proclamation. Thereafter the railway company shipped the cattle
back to Texarkana, to the line of railway from which they were
received, by which line they were returned to Plain Dealing, and
there tendered to the shippers, who refused to receive them.
Thereupon they were sold, after proper advertising, and the
proceeds of the sale, less pasturage at Plain Dealing, were
tendered to the owners, which was also refused. At the time of the
shipment, the Livestock Sanitary Commission had recommended the
adoption of the following regulation with reference to Louisiana
cattle:
"The Texas Livestock Commission has reason to believe that
charbon or anthrax has or is liable to break out in the State of
Louisiana, and from this time forth until the 15th day of November,
1897, no cattle, mules, or horses are to transported or driven into
the State of Texas from the State of Louisiana."
The quarantine established (if valid) was in full force at the
time of the shipment of the cattle. The bill of lading contained
stipulations as to a measure of damages in case of a total loss of
the cattle, and other provisions, which, as they do not raise
federal questions, we are not concerned with on this record.
Page 181 U. S. 252
The trial court held that--
"1. The quarantine regulations above mentioned, established by
the Governor of the state, is a regulation of or an interference
with interstate commerce in that its effect is to prohibit the
importation of all cattle from the State of Louisiana into the
State of Texas, whether affected with or capable of communicating
the disease mentioned in said proclamation or not, and is therefore
void as being in contravention of Section 8 of Article I of the
Constitution of the United States."
"Had the Livestock Sanitary Commission of the state found upon
investigation that charbon or anthrax had broken out among the
entire cattle of the State of Louisiana, and that all cattle of the
State of Louisiana were liable to communicate either of said
diseases to cattle of the State of Texas, and had said proclamation
of the Governor been based upon said finding, then I think it would
have been in law a police regulation of no greater scope than
necessary to the protection of cattle in the State of Texas, and
therefore valid, even though it did interfere with interstate
commerce."
It also held that the stipulation in the contract of shipment
limiting the damages at a fixed sum per head was void, and gave
judgment for the actual cash value of the cattle, less freight
charges. The judgment amounted to $578.10.
The judgment was reversed by the court of civil appeals, and
thereupon the chief justice of that court granted this writ of
error. Before the commencement of the action, the plaintiff in
error became the vendee of the interests of the other owners.
MR. JUSTICE McKENNA, after making the foregoing statement,
delivered the opinion of the Court.
There are other questions in the record besides the federal
Page 181 U. S. 253
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
defense 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 into 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 the 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. New
York, 92 U. S. 259, it
was held that the statute of the state, which, aiming to secure
indemnity against persons coming from foreign countries becoming a
charge upon the state, required shipowners 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, 92 U. S.
275, a statute declaring the same purpose as the New
York statute, and apparently directed against persons mentally and
physically infirm,
Page 181 U. S. 254
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 right of a state, in the absence of 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 exist. 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 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 whatsoever"
was held to be in conflict with the clause of the Constitution
which 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 were considered. The action
was against the railroad 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
Page 181 U. S. 255
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 of 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. 59.
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,
165 U. S. 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 commerce -- 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
Page 181 U. S. 256
not only to the 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," 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 first and December
first 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.
118 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
Page 181 U. S. 257
within it. P.
118 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 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 this state shall be
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 Stat. 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 be disregarded, and the
true purpose of a statute ascertained.
Henderson v. 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 court of civil appeals said:
"The necessities of such cases often require prompt action. If
too long delayed, the end to be attained by
Page 181 U. S. 258
the 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
Livestock 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 character 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. Bell, 129 U. S. 217. 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 that 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.
Page 181 U. S. 259
* Article 5043c of the Revised Statutes, 1895, provides:
"It shall be the duty of the commission provided for in article
5043
a to protect the domestic animals of this state from
all contagious or infectious diseases of a malignant character,
whether said diseases exist in Texas or elsewhere, and for this
purpose they are hereby authorized and empowered to establish,
maintain, and enforce such quarantine lines and sanitary rules and
regulations as they may deem necessary. It shall also be the duty
of said commission to cooperate with livestock quarantine
commissioners and officers of other states and territories, and
with the United States Secretary of Agriculture, in establishing
such interstate quarantine lines, rules, and regulations as shall
best protect the livestock industry of this state against Texas or
splenetic fever. It shall be the duty of said commission, upon
receipt by them of reliable information of the existence among the
domestic animals of the state of any malignant disease, to go at
once to the place where any such disease is alleged to exist and
make a careful examination of the animals believed to be affected
with any such disease and ascertain, if possible, what if any,
disease exists among the livestock reported to be affected, and
whether the same is contagious or infectious, and if said disease
is found to be of a malignant, contagious, or infectious character,
they shall direct and enforce such quarantine lines and sanitary
regulations as are necessary to prevent the spread of any such
disease. And no domestic animal infected with disease or capable of
communicating the same shall be permitted to enter or leave the
district, premises, or grounds so quarantined except by authority
of the commissioners. The said commission shall also, from time to
time, give and enforce such directions and prescribe such rules and
regulations as to separating, feeding, and caring for such diseased
and exposed animals as they shall deem necessary to prevent the
animals so affected with such disease from coming in contact with
other animals not so affected. And the said commissioners are
hereby authorized and empowered to enter upon any grounds or
premises to carry out the provisions of this act."
MR. JUSTICE HARLAN dissenting:
I am unable to concur in the opinion and judgment of the Court.
The grounds of my dissent are these: (1) The railroad company was
bound to discharge its duties as a carrier unless relieved
therefrom by such quarantine regulations under the laws of Texas as
were consistent with the Constitution of the United States. It
could not plead in defense of its action the quarantine regulations
adopted by the state sanitary commission and the proclamation of
the Governor of that state, if such regulations and proclamation
were void under the Constitution of the United States. (2) The
authority of the state to establish quarantine regulations for the
protection of the health of its people does not authorize it to
create an embargo upon all commerce involved in the transportation
of livestock from Louisiana to Texas. The regulations and the
Governor's proclamation, upon their face, showed the existence of a
certain cattle disease in one of the counties of Texas. If, under
any circumstances, that fact could be the basis of an embargo upon
the bringing into Texas from Louisiana of all livestock during a
prescribed period, those circumstances should have appeared from
the regulations and the proclamation referred to. On the contrary,
there does not appear on the face of the transaction any ground
whatever for establishing a complete embargo for any given period
upon all transportation of livestock from Louisiana to Texas.
I think, therefore, that the regulations and proclamation upon
which the defendant relied were to be deemed void, and therefore
inapplicable to the particular transportation referred to in the
complaint.
It seems to me that the present case comes within the principles
announced in
Henderson v. Mayor of New York, 92 U. S.
259. That case involved the validity of a statute of New
York having for its object the protection of the people of that
state against the immigration of foreign paupers. It was held by
this Court to be unconstitutional because "its practical result was
to impose a burden upon all passengers from foreign countries."
Page 181 U. S. 260
In that case it was said that, in whatever language a statute
was framed, its purpose must be determined by its natural and
reasonable effect. So also in
Railroad Co. v. Husen,
95 U. S. 465,
95 U. S. 473,
we held that a statute of Missouri relating to the bringing into
that State of any Texas, Mexican, or Indian cattle between certain
dates was a plain intrusion upon the exclusive domain of Congress.
This Court said:
"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, between March first and December
first 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."
"Such a statute, we do not doubt, 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."
What was said of the Missouri statute may be repeated as to the
regulations adopted by the Sanitary Commission and the proclamation
of the Governor of Texas forbidding the bringing of cattle into
that state from Louisiana. The result, in my judgment, is, in view
of our former decisions, that the quarantine regulations and
proclamation in question involved, by their natural and practical
operation, an unauthorized obstruction to the freedom of interstate
commerce. This must be so even if the statute of Texas, reasonably
interpreted, was itself not repugnant to the Constitution of the
United States.
MR. JUSTICE WHITE authorizes me to say that he concurs in these
views.
MR. JUSTICE BROWN, dissenting:
The law of Texas for the creation of a Livestock Sanitary
Commission, cited in the opinion of the Court, provides that
"it
Page 181 U. S. 261
shall be the duty of said commission, upon receipt by them of
reliable information, . . . of any malignant disease, to go . . .
and make a careful examination of the animals believed to be
affected, . . . and if said disease is found to be of a malignant,
contagious, or infectious character, they shall direct and enforce
such quarantine lines and sanitary regulations as are necessary to
prevent the spread of any such disease. And no domestic animal
infected with disease, or capable of communicating the same, shall
be permitted to enter or leave the district, premises, or grounds
so quarantined except by authority of the commissioners."
I had supposed the authority of the commissioners to be fixed by
this act, and their right to quarantine or forbid the entry of
animals was limited to such as were infected with disease or
capable of communicating the same.
The proclamation of the Governor, based upon the report of the
Sanitary Commission, covers two separate classes of cases. It finds
that cattle in the southern portion of Jefferson County, Texas, are
affected with disease, and liable to impart such disease to cattle
ranging in the upper portion of Jefferson and other counties, and
therefore forbids such cattle from being transported north or west
of certain bayous running across the southern portion of Jefferson
County. So far, the order is within the statute.
But it also finds that the commission "has reason to believe
that charbon and anthrax has (broken out) or is liable to break out
in the State of Louisiana," and hence that no cattle are to be
transported into Texas from Louisiana. This portion of the order
seems to me a plain departure from the terms of the statute. It
does not find that there are cattle in Louisiana "infected with
disease or capable of communicating the same," but simply that the
disease is liable to break out in that state. It does not even find
that it has broken out, or that there are any cattle in that state
capable of communicating the disease. If the fact that a contagious
disease is liable to break out in a certain locality be sufficient
to justify a quarantine against such locality, then it is possible
that every port of the United States may quarantine against Cuban
or other West Indian ports,
Page 181 U. S. 262
since it is a well known fact that yellow fever is liable to
break out there at almost any time, and especially during the
summer months.
The sweeping nature of this order is manifest by comparing it
with the first order relating to the Jefferson County cattle. There
is a finding there that the cattle in the southern portion of a
particular county "are affected with disease, known as charbon or
anthrax, and are liable to impart such disease to cattle" ranging
in the upper portion of Jefferson County, and therefore no cattle
shall be transported north or west of the infected district. In
other words, it finds the actual existence of disease within a
definite and circumscribed locality, and prohibits the
transportation of cattle from such locality to noninfected
districts.
On the other hand, the second order assumes to quarantine
against cattle from the entire State of Louisiana without any
finding that the disease has broken out there or that the cattle in
such state are liable to communicate such disease to other cattle.
The order is not limited to cattle coming from any particular
portion of the state, but applies to the whole state, regardless of
the actual existence of the disease or the liability to communicate
contagion.
It seems to me that the proclamation goes far beyond the
authority of the statute, beyond the necessities of the case, and
is a wholly unjustifiable interference with interstate commerce.
The statute, thus construed, puts a power into the hands of a
Sanitary Commission which is liable to be greatly abused and to be
put forward as an excuse for keeping out of Texas perfectly healthy
animals from other states, and putting a complete stop to a large
trade.
In the case of the
Missouri, Kansas, and Texas Railway v.
Haber, 169 U. S. 613, the
statute of Kansas in question applied only to "cattle capable of
communicating, or liable to impart what is known as Texas,
splenetic or Spanish fever" to any domestic cattle of the state,
and was a proper exercise of the power of quarantine, since healthy
cattle were not interfered with. These were substantially the terms
of the Texas statute, to which I see no objection; but the action
of the commission
Page 181 U. S. 263
was a plain departure from the terms of the statute, and I think
unauthorized by law. It was practically as sweeping as the statute
of Missouri, condemned by this Court in
Railroad Co. v.
Husen, 95 U. S. 465, which
provided that
"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 whatsoever,"
regardless of the fact whether these cattle were diseased or
were capable of communicating disease. This was held to be in
conflict with the interstate commerce clause of the Constitution.
As justly observed of the opinion in that case by the Court in its
opinion in this case,
"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."
This is the precise objection I make to the finding of the
commission, and to the proclamation of the Governor in this
case.
It is sufficient to say of the finding of the court of civil
appeals of Texas that, "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," that there is no such
finding in the report of the commission or in the Governor's
proclamation, and that, under the statute, there must be a finding
either of disease or of a liability to communicate disease to
justify the action of the commission. It cannot, of its own motion,
put in force the quarantine laws of the state without the finding
of some facts that such enforcement is necessary to the protection
of Texas cattle. I am therefore constrained to dissent from the
opinion of the Court.
