1. The power of the states to quarantine against importation of
farm produce likely to convey injurious insects from infested
localities was suspended, insofar as concerns interstate commerce,
by the Act of August 20, 1912, as amended March 4, 1917, investing
the Secretary of Agriculture with full authority over the subject.
P.
270 U. S.
96.
2. This Act of Congress cannot be construed as leaving the
states at liberty to establish such quarantines in the absence of
action by the Secretary of Agriculture. P.
270 U. S.
102.
3. A quarantine proclaimed by the Washington under Ls.1921, c.
105, against importation of alfalfa hay and alfalfa meal except in
sealed containers coming from designated regions in other states
found to harbor the alfalfa weevil is therefore inoperative. Pp.
270 U. S. 93,
270 U. S.
102.
128 Wash. 365 reversed.
Error to a judgment of the Supreme Court of Washington affirming
a decree, in a suit instituted by the state, permanently enjoining
the railroad company from transporting through the state
consignments of alfalfa hay and meal from other designated states
or parts thereof in disregard of a quarantine.
Page 270 U. S. 90
MR. CHIEF JUSTICE TAFT delivered the opinion of the Court.
This was a bill of complaint filed by the State of Washington in
the Superior Court of Thurston County of that state against the
defendant, the Oregon-Washington Railway & Navigation Company,
an interstate common carrier in the States of Idaho, Oregon, and
Washington. The bill averred that there existed in the areas of the
States of Utah, Idaho, Wyoming, Oregon, and Nevada an injurious
insect popularly called the alfalfa weevil, and scientifically
known as the
phytonomus posticus, which fed upon the
leaves and foliage of the alfalfa plant, to the great damage of the
crop; that the insect multiplied rapidly, and was propagated by
means of eggs deposited by the female insect upon the leaves and
stalks of the plant; that, when the hay was cured, the eggs clung
to and remained dormant upon the hay, and even in the meal made
from it; that the eggs and live weevils were likely to be carried
to points where hay was transported, infecting the growing crop
there; that, when the hay was carried in common boxcars, the eggs
and live weevils were likely to be shaken out and distributed along
the route and communicated to the agricultural lands adjacent to
the route; that a proper inspection to ascertain the presence of
the eggs or weevils would require the tearing open of every bale of
hay and sack of meal, involving a prohibitive cost of inspection,
and that the only practical method of preventing the spread into
uninfested districts was to prohibit the transportation of hay or
meal from the district in which the weevil existed; that the pest
is new to, and not generally distributed within, the State of
Washington; that there is no known method of ridding a district
infested of the pest; that, subsequent to June 8, 1921, and
Page 270 U. S. 91
prior to September 17, 1921, information was received by the
Washington director of agriculture that there was a probability of
the introduction of the weevil into the state across its
boundaries; that he thereupon investigated thoroughly the insect
and the areas where such pests existed, and ascertained it to be in
the whole of the State of Utah, all portions of the State of Idaho
lying south of Idaho County, the Counties of Unita and Lincoln in
the State of Wyoming, the County of Delta in the State of Colorado,
the Counties of Malheur and Baker in the State of Oregon, and the
County of Washoe in the State of Nevada; that he, with the approval
of the Governor of the state, thereupon, on or about September 17,
1921, made and promulgated a quarantine regulation and order, under
the terms of which he declared a quarantine against all of the
above-described areas, and forbade the importation into Washington
of alfalfa hay and alfalfa meal except in sealed containers, and
fixed the boundaries of the quarantine. The bill further averred
that the defendant, knowing of the proclamation, and in violation
thereof, had caused to be shipped into Washington, in common
boxcars, and not in sealed containers, approximately 100 cars of
alfalfa hay, consigned from various points in the State of Idaho
lying south of Idaho County, and through the State of Oregon and
into the State of Washington, in direct violation of the quarantine
order, and that, unless enjoined, the defendant would continue to
make these shipments from such quarantined area in the State of
Idaho into and through the State of Washington; that large
quantities of alfalfa were grown in the eastern and central
portions of Washington, and adjacent to the railroad lines of the
defendant and other railroads over which such shipments of alfalfa
hay were shipped and were likely to be shipped in the future,
unless an injunction was granted, to the great and irreparable
damage of the citizens of Washington growing alfalfa therein. A
temporary
Page 270 U. S. 92
injunction was issued, and then a demurrer was filed by the
defendants. The demurrer was overruled. An answer was filed, and in
each of the pleadings was set out the claim by the defendant that
the action and proclamation of the director of agriculture and the
Governor, and Chapter 105 of the Laws of Washington of 1921, under
which they acted, were in contravention of the interstate commerce
clause of the federal Constitution, and in conflict with an act of
Congress.
At the hearing, there was evidence on behalf of the state that
the Oregon-Washington and Northern Pacific Railroads ran through
the parts of the state where the alfalfa was raised; that the
weevil had first appeared in Utah in 1904 in Salt Lake City, and
that it had spread about 10 miles a year; that it came from Russia
and Southern Europe; that it would be impossible to adopt any
method of inspection of alfalfa hay to keep out the weevil not
prohibitory in cost; that, in Europe, the weevil is not a serious
pest, because its natural enemies exist there, and they keep it
down; that the United States government had attempted to introduce
parasites, but that it takes a long time to secure a natural check
from such a method; that methods by using poison sprays, by
burning, and in other ways had been used to attack the pest, but
that no one method has been entirely successful; that there is no
practical way of eliminating the beetles completely if the field
once becomes infected, and the continuance of the pest will be
indefinite; that the great danger of spreading the infection is
through the transfer of hay from one section to another. In behalf
of the defendant, it was testified that the prevalent opinion in
regard to the spread of the alfalfa weevil and the damage it was
doing was vastly exaggerated; that the spread of the weevil from
hay shipped in the cars through the State of Washington was
decidedly improbable. The superior court made the temporary
injunction permanent, and the
Page 270 U. S. 93
Supreme Court of Washington affirmed the decree. This is a writ
of error under § 237 of the Judicial Code to that decree.
By Chapter 105 of the Washington Session Laws of 1921, p. 308,
the Director is given the power and duty, with the approval of the
Governor, to establish and maintain quarantine needed to keep out
of the state contagion or infestation by disease of trees and
plants and injurious insects or other pests, to institute an
inspection to prevent any infected articles from coming in, except
upon a certificate of investigation by such Director, or in his
name by an inspector. Upon information received by the Director of
the existence of any infectious plant, disease, insect, or weed
pest new to or not generally distributed within the state,
dangerous to the plant industry of the state, he is required to
proceed to investigate the same and then enforce necessary
quarantine. There is a provision for punishment of a fine of not
less than $100 or more than $1,000, or by both such fine and
imprisonment, for violation of the Act.
In the absence of any action taken by Congress on the subject
matter, it is well settled that a state, in the exercise of its
police power, may establish quarantines against human beings, or
animals, or plants, the coming in of which may expose the
inhabitants, or the stock, or the trees, plants, or growing crops,
to disease, injury, or destruction thereby, and this in spite of
the fact that such quarantines necessarily affect interstate
commerce.
Chief Justice Marshall, in
Gibbons v.
Ogden, 9 Wheat 1, speaking of inspection laws, says
at p.
22 U. S. 203:
"They form a portion of that immense mass of legislation which
embraces everything within the territory of a state not surrendered
to the general government, all which can be most advantageously
exercised by the states themselves. Inspection laws, quarantine
laws, health laws of every description, as well as laws for
regulating the internal
Page 270 U. S. 94
commerce of a state, and those which respect turnpike roads,
ferries, etc., are component parts of this mass."
Again he says at p.
22 U. S. 205:
"The acts of Congress, passed in 1796 and 1799, . . . empowering
and directing the officers of the general government to conform to
and assist in the execution of the quarantine and health laws of a
state, proceed, it is said, upon the idea that these laws are
constitutional. It is undoubtedly true that they do proceed upon
that idea, and the constitutionality of such laws has never, so far
as we are informed, been denied. But they do not imply an
acknowledgment that a state may rightfully regulate commerce with
foreign nations, or among the states, for they do not imply that
such laws are an exercise of that power, or enacted with a view to
it. On the contrary, they are treated as quarantine and health
laws, are so denominated in the acts of Congress, and are
considered as flowing from the acknowledged power of a state to
provide for the health of its citizens. But as it was apparent that
some of the provisions made for this purpose, and in virtue of this
power, might interfere with and be affected by the laws of the
United States, made for the regulation of commerce, Congress, in
that spirit of harmony and conciliation which ought always to
characterize the conduct of governments standing in the relation
which that of the Union and those of the states bear to each other,
has directed its officers to aid in the execution of these laws,
and has in some measure adapted its own legislation to this object
by making provisions in aid of those of the states. But, in making
these provisions, the opinion is unequivocally manifested that
Congress may control the state laws, so far as it may be necessary
to control them, for the regulation of commerce."
This Court, in the
Minnesota Rate Cases, 230 U.
S. 352,
230 U. S. 406,
said:
"Quarantine regulations are essential measures of protection
which the states are free to adopt when they do
Page 270 U. S. 95
not come into conflict with federal action. In view of the need
of conforming such measures to local conditions, Congress from the
beginning has been content to leave the matter for the most part,
notwithstanding its vast importance, to the states, and has
repeatedly acquiesced in the enforcement of state laws. . . . Such
laws undoubtedly operate upon interstate and foreign commerce. They
could not be effective otherwise. They cannot, of course, be made
the cover for discriminations and arbitrary enactments having no
reasonable relation to health (
Hannibal & St. J. Railroad
Co. v. Husen, 95 U. S. 465,
95 U. S.
472-473), but the power of the state to take steps to
prevent the introduction or spread of disease, although interstate
and foreign commerce are involved (subject to the paramount
authority of Congress if it decides to assume control) is beyond
question.
Morgan's, etc., S.S. Co. v. Louisiana,
118 U. S.
455;
Missouri, Kansas & Texas Ry. Co. v.
Haber, 169 U. S. 613;
Louisiana v.
Texas, 176 U. S. 1;
Rasmussen v.
Idaho, 181 U. S. 198;
Compagnie
Francaise, &c. v. Board of Health, 186 U. S.
380;
Reid v. Colorado, 187 U. S.
137,
187 U. S. 138;
Asbell v.
Kansas, 209 U. S. 251."
Counsel for the company argues that the case of
Railroad Co.
v. Husen, 95 U. S. 465, is an
authority to show that this law as carried out by the proclamation
goes too far in that it forbids importations from certain parts of
Idaho, of Utah, of Nevada, of alfalfa hay without qualification and
without any limit of time. The
Husen case is to be
distinguished from the other cases cited in that the Missouri
statute there held invalid was found by the Court not to be a
quarantine provision at all. It forbade the importation into
Missouri for eight months of the year of any Texas, Mexican, or
Indian cattle, without regard to whether the cattle were diseased
or not, and without regard to the question whether they came from a
part of the country where they had been exposed to contagion.
Page 270 U. S. 96
We think that here the investigation required by the Washington
law and the investigation actually made into the existence of this
pest and its geographical location makes the law a real quarantine
law, and not a mere inhibition against importation of alfalfa from
a large part of the country without regard to the conditions which
might make its importation dangerous.
The second objection to the validity of this Washington law and
the action of the state officers, however, is more formidable.
Under the language used in
Gibbons v. Ogden, supra, and
the
Minnesota Rate Cases, supra, the exercise of the
police power of quarantine, in spite of its interfering with
interstate commerce, is permissible under the interstate commerce
clause of the federal Constitution "subject to the paramount
authority of Congress, if it decides to assume control."
By the Act of Congress of August 20, 1912, 37 Stat. 315, c. 308,
§ 8, as amended by the Act of March 4, 1917, 39 Stat. 1165, c. 179,
it is made unlawful to import or offer for entry into the United
States any nursery stock unless permit had been issued by the
Secretary of Agriculture under regulations prescribed by him.
Section 2 of the Act of 1912 makes it the duty of the Secretary
of the Treasury to notify the Secretary of Agriculture of the
arrival of any nursery stock, and forbids the shipment from one
state or territory or district of the United States into another of
any nursery stock imported into the United States without notifying
the Secretary of Agriculture, or at his direction, the proper
state, territorial, or district official to which the nursery stock
was destined. Whenever the Secretary of Agriculture shall determine
that such nursery stock may result in the entry of plant diseases
or insect pests, he shall promulgate his determination of this, but
shall give due notice and a public hearing at which any interested
party might appear before the promulgation.
Page 270 U. S. 97
Section 7 provides that, whenever, in order to prevent the
introduction into the United States of any tree, plant, or fruit
disease, or any injurious insect, not theretofore widely prevalent
or distributed within and through the United States, the Secretary
shall determine that it was necessary to forbid the importation
into the United States, he shall promulgate such determination, and
such importations are thereafter prohibited.
Section 8 of the Act was amended by the Agricultural
Appropriation Act of March 4, 1917, and reads as follows:
"Sec. 8. That the Secretary of Agriculture is authorized and
directed to quarantine any state, territory, or district of the
United States, or any portion thereof, when he shall determine that
such quarantine is necessary to prevent the spread of a dangerous
plant disease or insect infestation, new to or not theretofore
widely prevalent or distributed within and throughout the United
States, and the Secretary of Agriculture is directed to give notice
of the establishment of such quarantine to common carriers doing
business in or through such quarantined area, and shall publish in
such newspapers in the quarantined area as he shall select notice
of the establishment of quarantine. That no person shall ship or
offer for shipment to any common carrier, nor shall any common
carrier receive for transportation or transport, nor shall any
person carry or transport from any quarantined state or territory
or District of the United States, or from any quarantined portion
thereof, into or through any other state or territory or District,
any class of nursery stock or any other class of plants, fruits,
vegetables, roots, bulbs, seeds, or other plant products, or any
class of stone or quarry products, or any other article of any
character whatsoever capable of carrying any dangerous plant
disease or insect infestation specified in the notice of quarantine
except as hereinafter provided. That it shall be unlawful to
Page 270 U. S. 98
move, or allow to be moved, any class of nursery stock or any
other class of plants, fruits, vegetables, roots, bulbs, seeds, or
other plant products, or any class of stone or quarry products or
any other article of any character whatsoever, capable of carrying
any dangerous plant disease or insect infestation specified in the
notice of quarantine hereinbefore provided, and regardless of the
use for which the same is intended, from any quarantined state or
territory or district of the United States or quarantined portion
thereof, into or through any other state or territory or district,
in manner or method or under conditions other than those prescribed
by the Secretary of Agriculture. That it shall be the duty of the
Secretary of Agriculture, when the public interests will permit, to
make and promulgate rules and regulations which shall permit and
govern the inspection, disinfection, certification, and method and
manner of delivery and shipment of the class of nursery stock or of
any other class of plants, fruits, vegetables, roots, bulbs, seeds,
or other plant products, or any class of stone or quarry products,
or any other article of any character whatsoever, capable of
carrying any dangerous plant disease or insect infestation,
specified in the notice of quarantine hereinbefore provided, and
regardless of the use for which the same is intended, from a
quarantined state or territory or district of the United States, or
quarantined portion thereof, into or through any other state or
territory or district, and the Secretary of Agriculture shall give
notice of such rules and regulations as hereinbefore provided in
this section for the notice of the establishment of quarantine:
Provided, that, before the Secretary of Agriculture shall
promulgate his determination that it is necessary to quarantine any
state, territory, or district of the United States, or portion
thereof, under the authority given in this section, he shall, after
due notice to interested parties, give a public hearing under such
rules and regulations
Page 270 U. S. 99
as he shall prescribe, at which hearing any interested party may
appear and be heard, either in person or by attorney."
Section 10 of the Act provides that any person who shall violate
any provisions of the Act, or who shall forge, counterfeit, or
destroy any certificate provided for in the Act or in the
regulations of the Secretary of Agriculture, shall be deemed guilty
of a misdemeanor, and shall, upon conviction thereof, be punished
by a fine not exceeding $500, or by imprisonment not exceeding one
year, or both such fine and imprisonment, in the discretion of the
court. It is made the duty of the United States attorneys
diligently to prosecute any violations of this Act which are
brought to their attention by the Secretary of Agriculture, or
which come to their notice by other means, and that, for the
purpose of carrying out the provisions of the Act, the Secretary of
Agriculture shall appoint from existing bureaus in his office a
commission of five members employed therein.
It is impossible to read this statute and consider its scope
without attributing to Congress the intention to take over to the
Agricultural Department of the federal government the care of the
horticulture and agriculture of the states, so far as these may be
affected injuriously by the transportation in foreign and
interstate commerce of anything which by reason of its character
can convey disease to and injure trees, plants, or crops. All the
sections look to a complete provision for quarantine against
importation into the country and quarantine as between the states
under the direction and supervision of the Secretary of
Agriculture.
The courts of Washington and the counsel for the state rely on
the decision of this Court in
Reid v. Colorado,
187 U. S. 137, as
an authority to sustain the validity of the Washington law before
us.
The
Reid case involved the constitutionality of a
conviction of Reid for violation of
Page 270 U. S. 100
an Act of Colorado to prevent the introduction of infectious or
contagious diseases among the cattle and horses of that state. The
law made it unlawful for any person, association, or corporation to
bring or drive any cattle or horses, suffering from such disease,
or which had within 90 days prior thereto been herded or brought
into contact with any other cattle or horses suffering from such
disease, into the state unless a certificate or bill of health
could be produced from the state veterinary sanitary board that the
cattle and horses were free from all infectious or contagious
diseases. It was urged that it was inconsistent with the federal
Animal Industry Act. This directed a study of contagious and
communicable diseases of animals and the best method of treating
them by the federal Commissioner of Agriculture, to be certified to
the executive authority of each state and the cooperation of such
authority was invited. If the authorities of the state adopted the
plans and methods advised by the department, or if such authorities
adopted measures of their own which the department approved, then
the money appropriated by Congress was to be used in conducting
investigations, and in aiding such disinfection and quarantine
measures as might be necessary to prevent the spread of the
diseases in question from one state or territory into another. This
Court held that Congress did not intend by the Act to override the
power of the states to care for the safety of the property of their
people, because it did not undertake to invest any officer or agent
of the department with authority to go into a state and, without
its assent, take charge of the work of suppressing or extirpating
contagious, infectious, or communicable diseases there prevailing,
or to inspect cattle or give a certificate of freedom from disease
for cattle of superior authority to state certificates.
It is evident that the federal statute under consideration in
the
Reid case was an effort to induce the states to
Page 270 U. S. 101
cooperate with the general government in measures to suppress
the spread of disease, without at all interfering with the action
of the state in quarantining or taking any other measures to
extirpate it or prevent its spread. Indeed, the Commissioner of
Agriculture in that case was to aid the state authorities in their
quarantine and other measures from federal appropriation. The act
we are considering is very different. It makes no reference
whatever to cooperation with state authorities. It proposes the
independent exercise of federal authority with reference to
quarantine in interstate commerce. It covers the whole field so far
as the spread of the plant disease by interstate transportation can
be affected and restrained. With such authority vested in the
Secretary of Agriculture, and with such duty imposed upon him, the
state laws of quarantine that affect interstate commerce, and thus
federal law, cannot stand together. The relief sought to protect
the different states, insofar as it depends on the regulation of
interstate commerce, must be obtained through application to the
Secretary of Agriculture.
In the relation of the states to the regulation of interstate
commerce by Congress, there are two fields. There is one in which
the state cannot interfere at all, even in the silence of Congress.
In the other, and this is the one in which the legitimate exercise
of the state's police power brings it into contact with interstate
commerce, so as to affect that commerce, the state may exercise its
police power until Congress has by affirmative legislation occupied
the field by regulating interstate commerce and so necessarily has
excluded state action.
Cases of the latter type are the
Southern Railway Co. v.
Reid, 222 U. S. 424;
Northern Pacific Railway Co. v. Washington, 222 U.
S. 370,
222 U. S. 378;
C. R.I. & P. Ry. Co. v. Elevator Co., 226 U.
S. 426,
226 U. S. 435;
Erie Railroad Co. v. New York, 233 U.
S. 671,
233 U. S. 681,
and
Missouri Pacific Railroad Co. v. Stroud, 267 U.
S. 404.
Page 270 U. S. 102
Some stress is laid by the counsel of the state on the case of
Missouri Pacific Ry. Co. v. Larabee Flour Mills Co.,
211 U. S. 612.
There, the question was whether a state court might by mandamus
compel a railroad company, under its common law obligation as a
common carrier, to afford equal local switching service to its
shippers notwithstanding the fact that the cars in regard to which
the service was claimed were two-thirds of them in interstate
commerce and one-third in intrastate commerce. The contention was
that the enactment of the Interstate Commerce Act put such
switching wholly in control of the Interstate Commerce Commission.
The case was one on the border line, three judges dissenting. The
number of cases decided since that case and above cited have made
it clear that the rule, as it always had been, was not intended in
that case to be departed from. That rule is that there is a field
in which the local interests of states touch so closely upon
interstate commerce that, in the silence of Congress on the
subject, the states may exercise their police powers, and local
switchings, as in that case, and quarantine, as in the case before
us, are in that field. But, when Congress has acted and occupied
the field, as it has here, the power of the states to act is
prevented or suspended.
It follows that, pending the existing legislation of Congress as
to quarantine of diseased trees and plants in interstate commerce,
the statute of Washington on the subject cannot be given
application. It is suggested that the states may act in the absence
of any action by the Secretary of Agriculture, that it is left to
him to allow the states to quarantine, and that, if he does not
act, there is no invalidity in the state action. Such construction
as that cannot be given to the federal statute. The obligation to
act without respect to the states is put directly upon the
Secretary of Agriculture, whenever quarantine, in his judgment, is
necessary. When he does not
Page 270 U. S. 103
act, it must be presumed that it is not necessary. With the
federal law in force, state action is illegal and unwarranted.
The decree of the Supreme Court of Washington is
Reversed.
MR. JUSTICE McREYNOLDS, and MR. JUSTICE SUTHERLAND
dissenting.
We cannot think Congress intended that the Act of March 4, 1917,
without more, should deprive the states of power to protect
themselves against threatened disaster like the one disclosed by
this record.
If the Secretary of Agriculture had taken some affirmative
action, the problem would be a very different one. Congress could
have exerted all the power which this statute delegated to him by
positive and direct enactment. If it had said nothing whatever,
certainly the state could have resorted to the quarantine, and this
same right, we think, should be recognized when its agent has done
nothing.
It is a serious thing to paralyze the efforts of a state to
protect her people against impending calamity, and leave them to
the slow charity of a far-off and perhaps supine federal bureau. No
such purpose should be attributed to Congress unless indicated
beyond reasonable doubt.