On the facts stated by the Court in its opinion, it declines to
hold that it affirmatively appears from the record that a decision
could not have been had in the supreme court of the state, which is
the highest court in the state, and this being so, it holds that
the writ of error must be dismissed.
This was an action brought by Mullen and McPhee against the
Western Union Beef Company, in the District Court of Arapahoe
County, Colorado, to recover damages for loss of stock occasioned
by the communication from cattle of defendant to cattle of
plaintiffs of the disease known as splenetic or Texas fever, by the
importation into Colorado of a herd of Texas cattle, in June, 1891,
and suffering them to go at large, in violation of the quarantine
rules, regulations, and orders of the United States Department of
Agriculture, in accordance with the Act of Congress approved May
29, 1884, entitled "An act for the establishment of a Bureau of
Animal Industry," etc., 23 Stat. 31, c. 60, and the Act approved
July 14, 1890, 26 Stat. 287, c. 707, and in violation of the
quarantine rules and regulations of the State of Colorado. The
trial resulted in a verdict for defendant, on which judgment was
entered. Plaintiffs sued out a writ of error from the court of
appeals of the State of Colorado, and the judgment was affirmed,
whereupon the present writ of error was allowed.
The court of appeals held that the question of violation by
defendant of the quarantine rules and regulations of the state need
not be considered because, "upon sufficient evidence, it was
settled by the jury in defendant's favor," that "no question of
negligence generally in the shipment and management of the cattle
is presented by the record," and that the theory on which the case
had been tried below and was argued in that court was that
"if the loss of the plaintiffs'
Page 173 U. S. 117
cattle was in consequence of disease communicated by the cattle
of the defendant, its liability depends upon its acts with
reference to rules and regulations which it was legally bound to
observe."
The regulations of the Secretary of Agriculture were as
follows:
"
Regulations Concerning Cattle
Transportation"
"
United States Department of Agriculture"
"
Office of the Secretary"
"
Washington, D.C., February 5, 1891"
"To the Managers and Agents of Railroad and Transportation
Companies of the United States, Stockmen, and Others:"
"In accordance with section 7 of the Act of Congress approved
May 29, 1884, 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 pleuro-pneumonia and other
contagious diseases among domestic animals,"
"and of the Act of Congress approved July 14, 1890, making
appropriation for the Department of Agriculture for the fiscal year
ending June 30, 1891, you are notified that a contagious and
infectious disease known as splenetic or southern fever exists
among cattle in the following-described area of the United States:
. . . From the 15th day of February to the 1st day of December,
1891, no cattle are to be transported from said area to any portion
of the United States north or west of the above-described line
except in accordance with the following regulations:"
"[Here followed a series of stringent rules concerning the
method to be pursued in transporting cattle from the infected
districts.]"
"
United States Department of Agriculture"
"
Office of the Secretary"
"
Washington, D.C., April 23, 1891"
"Notice is hereby given that cattle which have been at least
ninety days in the area of country hereinafter described
Page 173 U. S. 118
may be moved from said area by rail into the States of Colorado,
Wyoming, and Montana for grazing purposes, in accordance with the
regulations made by said states for the admission of southern
cattle thereto."
"Provided:"
"1. That cattle from said area shall go into said states only
for slaughter or grazing, and shall on no account be shipped from
said states into any other state or territory of the United States
before the 1st day of December, 1891."
"2. That such cattle shall not be allowed in pens or on trails
or ranges that are to be occupied or crossed by cattle going to the
eastern markets before December 1, 1891, and that these two classes
shall not be allowed to come in contact."
"3. That all cars which have carried cattle from said area
shall, upon unloading at once be cleaned and disinfected in the
manner provided by the regulations of this department of February
5, 1891."
"4. That the state authorities of the States of Colorado,
Wyoming, and Montana agree to enforce these provisions."
The court, after stating that the territory described in both
orders included that from which the defendant's cattle were
shipped, said:
"It is the rules relating to the isolation of cattle moved from
infected districts, and more particularly the second proviso of the
second order, which were claimed to have been violated by the
defendant."
And it was then ruled that the regulations were not binding, as
it was not shown that the state had agreed to them; that they were
not authorized by the statute; that
"the second provision undertakes to regulate the duties, in
relation to them [the cattle], of the persons by whom they might be
removed after their arrival in the state, and it is upon this
provision that plaintiffs' reliance is chiefly placed. After
becoming domiciled within the state, their management would be
regulated by its laws, and not by the act of Congress. Any
violation of the federal law in connection with the cattle would
consist in their removal . The disposition of them afterwards
Page 173 U. S. 119
was not within the scope of the statute."
49 P. 425.
MR. CHIEF JUSTICE FULLER, after stating the facts in the
foregoing language, delivered the opinion of the Court.
We are met on the threshold by the objection that the writ of
error runs to the judgment of the court of appeals, and cannot be
maintained, because that is not the judgment of the highest court
of the state in which a decision could be had.
The Supreme Court of Colorado is the highest court of the state,
and the court of appeals is an intermediate court, created by an
Act approved April 6, 1891 (Sess.Laws Colo. 1891, 118), of which
the following are sections:
"Section 1. No writ of error from, or appeal to, the supreme
court shall lie to review the final judgment of any inferior court,
unless the judgment, or in replevin the value found, exceeds two
thousand five hundred dollars, exclusive of costs.
Provided, this limitation shall not apply where the matter
in controversy relates to a franchise or freehold, nor where the
construction of a provision of the constitution of the state or of
the United States is necessary to the determination of a case.
Provided further that the foregoing limitation shall not
apply to writs of error to county courts."
"SEC. 4. That the said court shall have jurisdiction:"
"
First -- To review the final judgments of inferior
courts of record in all civil cases and in all criminal cases not
capital."
"
Second -- It shall have final jurisdiction, subject to
the limitations stated in subdivision 3 of this section, where the
judgment, or in replevin the value found, is two thousand five
hundred dollars, or less, exclusive of costs. "
Page 173 U. S. 120
"
Third -- It shall have jurisdiction, not final, in
cases where the controversy involves a franchise or freehold, or
where the construction of a provision of the constitution of the
state or of the United States is necessary to the decision of the
case; also, in criminal cases, or upon writs of error to the
judgments of county courts. Writs of error from, or appeals to, the
court of appeals shall lie to review final judgments, within the
same time and in the same manner as is now or may hereafter be
provided by law for such reviews by the supreme court."
The Supreme Court of Colorado has held, in respect of its
jurisdiction, under these sections, that whenever a constitutional
question is necessarily to be determined in the adjudication of a
case, an appeal or writ of error from that court will lie; that
"it matters but little how such question is raised, whether by
the pleadings, by objections to evidence, or by argument of
counsel, provided the question is by some means fairly brought into
the record by a party entitled to raise it,"
but "it must fairly appear from an examination of the record
that a decision of such question is necessary, and also that the
question raised is fairly debatable,"
Trimble v. People,
19 Colo. 187, and also that
"when it appears by the record that a case might well have been
disposed of without construing a constitutional provision, a
construction of such provision is not so necessary to a
determination of the case as to give this court jurisdiction to
review upon that ground,"
Arapahoe County v. Board of Equalization, 23 Colo. 137,
and again that
"unless a constitutional question is fairly debatable, and has
been properly raised, and is necessary to the determination of the
particular controversy, appellate jurisdiction upon that ground
does not exist."
Madden v. Day, 24 Colo. 418.
This record discloses that defendant insisted throughout the
trial that the acts of Congress relied on by plaintiffs were
unconstitutional if construed as authorizing the particular
regulations issued by the Secretary.
When plaintiffs offered the rules and regulations in evidence
which they contended defendant had violated, defendant
Page 173 U. S. 121
objected to their admission on the two grounds that they were
not authorized by the acts of Congress, and that, if they were,
such acts were unconstitutional. The objection was overruled, and
defendant excepted.
The regulations having been introduced in evidence, plaintiffs
called as a witness, among others, a special agent of the
Department of Agriculture, who was questioned in respect of their
violation, to which defendant objected and excepted on the same
grounds.
At the conclusion of plaintiffs' case, a motion for nonsuit was
made by defendant, the unconstitutionality of the acts under which
the regulations were made being again urged and an exception taken
to the denial of the motion.
The trial then proceeded, and at its close, defendant requested
the court to give this instruction:
"The court instructs the jury that the act of Congress, and
rules and regulations made under the same, which the plaintiffs
allege to have been violated, are not authorized by the
Constitution of the United States, and are not valid subsisting
laws or rules and regulations with which the defendant is bound to
comply, and any violation of the same would not, of itself, be an
act of negligence, and you are not to consider a violation of the
same as an act of negligence in itself in arriving at a verdict in
this case."
This instruction was objected to and was not given, though no
exception appears to have been thereupon preserved.
On behalf of plaintiffs, the court was asked to instruct the
jury as follows:
"If the jury are satisfied from the evidence that the defendant
company failed to comply with paragraph two of the rules and
regulations of the United States Department of Agriculture of April
23, 1891, and that the defendant company did not put its cattle in
pens or on trails or ranges that were to be occupied or crossed by
the plaintiffs' cattle going to eastern markets before December,
1891, so that these two classes should not come in contact, then
that constitutes negligence and want of reasonable care on the part
of the defendant, and you need not look to any other evidence to
find that the defendant did
Page 173 U. S. 122
not use reasonable care in this case, and that the defendant was
guilty of negligence."
This was refused by the court, and plaintiffs excepted. But the
court charged the jury that the rule promulgated by the Secretary
of Agriculture
"would have the effect to give to this defendant notice that the
United States authorities having in charge the animal industries,
so far as the government of the United States may control it, were
of the opinion that it was unsafe to ship cattle from Kimble County
at that period of the year into Colorado and graze them upon lands
that were being occupied by other cattle intended for the eastern
market, or to allow them to commingle with them."
To this modification of the instruction requested plaintiffs
saved no specific exception.
After the affirmance of the judgment by the court of appeals,
plaintiffs filed a petition for a rehearing, the eighth
specification of which was that:
"This Court erred in holding and deciding that the rules and
regulations promulgated by the Secretary of Agriculture on April
23, 1891, as shown by the record herein, were not applicable to the
herd of cattle which the defendant in error imported into Colorado
in June, 1891, as shown by the record herein, for the reason, as
this court held, that after said cattle were domiciled in Colorado,
their management must be regulated by the state laws, and not by
the act of Congress, and that the disposition of said cattle
afterwards was not within the scope of federal authority."
It thus appears that if the trial court and the court of appeals
had been of opinion that the Secretary's rules and regulations were
within the terms of the authority conferred by the statutes, and
that noncompliance therewith would have constituted negligence
per se, those courts would have been necessarily compelled
to pass upon the constitutionality of the acts, which question was
sharply presented by defendant. And it is also obvious that if the
supreme court had been applied to and granted a writ of error, and
that court had differed with the conclusions of the court of
appeals, arrived at apart from constitutional objections, the
validity of the acts and regulations would have been
considered.
Page 173 U. S. 123
The court of appeals seems to have been of opinion that after
the cattle arrived in Colorado, Congress had no power to regulate
their disposition, and hence that the regulations were not binding.
And the question of power involved the construction of a provision
of the Constitution of the United States. At the same time, its
judgment may fairly be said to have rested on the view that the
statutes did not assert the authority of the United States, but
conceded that of the state in this regard, and that the regulations
were not within the terms of the statutes. But, if the case had
reached the supreme court, that tribunal might have ruled that the
judgment could not be sustained on these grounds, and then have
considered the grave constitutional question thereupon arising.
And although the supreme court might have applied the rule that
where a judgment rests on grounds not involving a constitutional
question, it will not interfere, we cannot assume that that court
would not have taken jurisdiction, since it has not so decided in
this case, nor had any opportunity to do so.
We must decline to hold that it affirmatively appears from the
record that a decision could not have been had in the highest court
of the state, and, this being so, the writ of error cannot be
sustained.
Fisher v. Perkins, 122 U.
S. 522.
Writ of error dismissed.
