1. To prevent the spread of an infectious disease, a state, if
not prevented by action of Congress, may require that cattle shall
not be imported for dairy or breeding purposes unless accompanied
by the certificate of the proper sanitary official of the origin
certifying that the animals to be brought in, and also the herds
from which they come, are free of the disease. Pp. 289 U. S.
2. Congress will not be deemed to have superseded or excluded
such state action under the commerce clause unless its intention to
do so has been made definite and clear. P. 289 U. S.
3. The Cattle Contagious Diseases Act of March 3, 1905, applying
only to shipments from quarantined districts established by the
Secretary of Agriculture, does not conflict with the state
inspection measure here in question as applied to shipments not
made from such a district. P. 289 U. S.
4. The Cattle Contagious Diseases Act of February 2, 1903, is
not inconsistent with enforcement of a state inspection order as to
cattle which have not been inspected and certified by federal
authority. P. 289 U. S.
5. The expression in that Act of a purpose to exclude state
inspection in cases where federal inspection has been made and
certificate issued, strongly suggests that Congress intended not
otherwise to trammel enforcement of state quarantine measures. P.
289 U. S.
6. Much weight is to be given to the practical interpretation of
the Act of 1903 by the Department of Agriculture through its
acquiescence in state measures to suppress the disease involved in
this case. P. 289 U. S.
7. Oregon-Washington R. & N. Co. v. Washington,
270 U. S. 87
distinguished. P. 289 U. S.
2 F. Supp. 700 affirmed.
Appeal from a decree of the three-judge district court denying a
temporary injunction and dismissing the bill in a suit to restrain
a state official from preventing the importation of plaintiffs'
Page 289 U. S. 347
MR. JUSTICE BUTLER delivered the opinion of the Court.
Plaintiffs have a large and valuable business in the raising,
and in the sale and transportation from Wisconsin to New York of
cattle for dairy and breeding purposes. Defendant, acting under
state statutes, made and is enforcing an order [Footnote 1
] to guard against Bang's disease,
Page 289 U. S. 348
bovine infectious abortion. The order requires that the cattle
imported into New York for such purposes and also the herds from
which they come shall be certified to be free from that disease by
the chief sanitary official of the state of origin, and that each
shipment be accompanied by such a certificate.
Plaintiffs shipped 20 head from Wisconsin for delivery to one
Bartlett in New York. The animals were accompanied by a certificate
which was sufficient as to them, but there was nothing to show the
freedom from Bang's disease of the herd of herds from which they
came. For that reason, defendant refused to permit them to be
delivered, and so plaintiffs were compelled to take them out of New
Plaintiffs brought this suit for a temporary and perpetual
injunction to restrain enforcement of the order. Their claim, so
far as here material, is that the order is repugnant to the
commerce clause because in conflict with federal statutes relating
to interstate transportation of livestock. Cattle Contagious
Diseases Acts: February 2, 1903, 32 Stat. 791, 21 U.S.C. §§ 111,
120-122; March 3, 1905, 33 Stat. 1264, 18 U.S.C. § 118, and 21
U.S.C. §§ 123-127. [Footnote 2
Their application for a temporary injunction was brought on for
hearing before a specially constituted court. 28 U.S.C. § 380.
Defendant answered, and, upon stipulation of the parties,
plaintiffs' motion for interlocutory decree
Page 289 U. S. 349
and defendant's motion to dismiss the complaint were submitted
upon the pleadings, the affidavit of one of the plaintiffs, the
affidavit of defendant, and affidavits of others in his behalf.
Temporary injunction was denied, and the bill was dismissed.
The court made special findings of fact which include the
following: Bang's disease prevails throughout the United States,
and is one of the greatest limiting factors, both as to
reproduction and milk yield. Undulant fever may be caused by the
disease germs when introduced into the human body by drinking raw
milk of an infected cow. The disease may generally be diagnosed
about 60 days after infection, though the time may be considerably
longer. Two blood tests are customarily made to detect the disease,
but they may not disclose it in the incubative stage. A substantial
percentage of cattle imported into New York under certificate that
they have passed tests for the disease are shown to have been
infected. There is a body of expert opinion that such cattle should
only be admitted when certified to have come from a clean herd, and
that, by such a safeguard, danger of infection would be greatly
lessened. The disease is exceedingly infectious, and the defendant
concluded that, in order to protect herd owners and milk consumers,
he should require a certificate not only that imported cattle
showed no infection, but that they came from herds free from
disease. This resulted in the order. By reason of danger of
infection from the disease, many states of the Union have imposed
restrictions upon the admission of cattle. The federal Department
of Agriculture, November 15, 1932, by letter to defendant, declared
that the Department had issued no quarantine or regulations
pertaining to Bang's disease, and that its policy for the present
is to leave the control with the various states.
The order is an inspection measure. Undoubtedly it was
promulgated in good faith, and is appropriate for the
Page 289 U. S. 350
prevention of further spread of the disease among dairy cattle
and to safeguard public health. It cannot be maintained, therefore,
that the order so unnecessarily burdens interstate transportation
as to contravene the commerce clause. Gibbons v.
9 Wheat. 1, 22 U. S. 203
The Minnesota Rate Case, 230 U. S. 352
230 U. S. 402
230 U. S. 406
Reid v. Colorado, 187 U. S. 137
187 U. S.
-152; Railroad Co. v. Husen, 95 U. S.
; Henderson v. Mayor, 92 U. S.
, 92 U. S. 268
Unless limited by the exercise of federal authority under the
commerce clause, the state has power to make and enforce the order.
The purpose of Congress to supersede or exclude state action
against the ravages of the disease is not lightly to be inferred.
The intention so to do must definitely and clearly appear.
Atchison, T. & S.F. Ry. Co. v. Railroad Comm'n,
283 U. S. 380
283 U. S. 391
Carey v. South Dakota, 250 U. S. 118
250 U. S. 122
Savage v. Jones, 225 U. S. 501
225 U. S. 533
Missouri, Kansas & Texas Ry. Co. v. Haber,
169 U. S. 613
169 U. S.
Plaintiffs' contention that the order is in conflict with the
Act of March 3, 1905, is groundless. That Act applies only to
shipments from quarantined districts that it authorizes the
Secretary to establish. Plaintiffs' shipments are not made from
such a district.
Examination of the Act of 1903 is necessary. It is a measure
intended to enable the Secretary to prevent the spread of disease
among cattle and other livestock. He is authorized and directed
from time to time to establish such rules and regulations
concerning interstate transportation from any place "where he may
have reason to believe such diseases may exist . . . and all such
rules and regulations shall have the force of law."
"Whenever any inspector or assistant inspector of the Bureau of
Animal Industry shall issue a certificate showing that such officer
had inspected any cattle . . . which were about to be shipped . . .
from such locality . . . and
Page 289 U. S. 351
had found them free from . . . communicable disease, such
animals, so inspected and certified, may be shipped, driven, or
transported from such place"
in interstate commerce
"without further inspection or the exaction of fees of any kind,
except such as may at any time be ordered or exacted by the
Secretary of Agriculture. . . ."
§ 1, 21 U.S.C. §§ 120, 121.
Plaintiffs' cattle were not inspected by, and no certificate was
issued under, federal authority. Unless the Act itself operates to
prevent the enforcement of the order, the suit was rightly
dismissed. The express exclusion of state inspection extends only
to cases where federal inspection has been made and certificate
issued. The clause cannot be read to extend to other cases. The
expression of purpose so to limit the exertion of state power
strongly suggests that Congress intended not otherwise to trammel
the enforcement of state quarantine measures. United
States v. De la Maza Arredondo,
6 Pet. 691,
31 U. S. 725
Much weight is to be given to the practical interpretation of the
act by the federal department through its acquiescence in the
enforcement of state measures to suppress Bang's disease. This case
is governed by the principle on which rests the decision in
Asbell v. Kansas, 209 U. S. 251
Defendant's order does not conflict with the Act of 1903.
Plaintiffs lean upon our decision in Oregon-Washington R.
& N. Co. v. Washington, 270 U. S. 87
as concerns the question of conflict with state measures, the Act
of 1903 is to be distinguished from the Plant Quarantine Act there
interpreted. Act of August 20, 1912, 37 Stat. 315, as amended, 7
U.S.C. §§ 151-154, 156-165. In that case, upon full consideration
of the latter, we said (p.
270 U. S. 99
"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. . . . [P. 270 U. S. 101
.] It [the
Page 289 U. S. 352
Act] covers the whole field so far as the spread of the plant
disease by interstate transportation can be affected and
restrained. . . . 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."
Unlike the Act of 1903, the Plant Quarantine Act does not, by
specification of the cases in which action under it shall be
exclusive, disclose the intention of Congress that, subject to the
limitations defined, state measures may be enforced. This
difference is essential, and controlling.
Plaintiffs' other contentions are not substantial, and need not
be specifically discussed.
"It appearing that Bang's disease, an infectious and
communicable disease affecting domestic animals, exists outside of
the State of New York in areas from which cattle are or may be
imported into this state,"
"Now, therefore, to prevent the bringing into this state of such
disease, and in pursuance of the authority conferred upon me by §§
72 and 74 of the Agriculture and Markets Law, I do hereby order
that all bovine animals coming into the New York shall comply with
the following requirements:"
"All cattle over six months of age imported for dairy or
breeding purposes shall come directly from herds certified to be
free from Bang's disease by the chief livestock sanitary official
by whatever name known of the country, province, or state of
origin. Such animals at the time of import must be accompanied by a
certificate authenticated by such livestock sanitary official
showing the name and address of the laboratory or person making the
last blood test on such herd with a complete statement of the
results of such test on the animals so imported. Such certificate
shall describe each animal in such manner as to enable its
identification by ear tag number, name, and registration number in
the case of purebreds and ear tag number in the case of grades.
Such certificate shall include or be accompanied by the certificate
above mentioned as to freedom of the herd from bang's disease. A
duplicate of such authenticated certificate or certificates must be
filed with the Department of Agriculture and Markets, Albany, N.Y.,
by the consignee at the time the shipment is received, unless such
duplicate has previously been filed by the consignor."
"This order shall not apply to the following classes of bovine
"(a) Cattle for immediate slaughter, consigned to the public
"(b) Steers and beef type cattle for feeding and grazing
Both Acts were amended by Act of February 7, 1928, 45 Stat.