Kimmish v. Ball
129 U.S. 217 (1889)

Annotate this Case

U.S. Supreme Court

Kimmish v. Ball, 129 U.S. 217 (1889)

Kimmish v. Ball

No. 1254

Submitted January 2, 1889

Decided January 28, 1889

129 U.S. 217

Syllabus

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.

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