The Act of Kansas of 1891, c. 201, as amended and as it appears
in 2 Gen.Stats.Kansas, 1897, 761, c. 139, relating to bringing into
the state cattle liable or capable of communicating Texas, splenic,
or Spanish fever to any domestic cattle of the state and providing
for the trial of civil actions brought to recover damages therefor,
is not overridden by the Act of Congress of March 19, 1884, 23
Stat. 31, c. 60, known as the Animal Industry Act, nor by the Act
of March 3, 1891, 26 Stat. 1044, 1049, c. 544, appropriating money
to carry out the provisions of the above act, nor by section 5258
of the Revised Statutes, authorizing every railroad company in the
United States operated by steam, its successors and assigns,
"to carry upon and over its road, boats, bridges, and ferries
all passengers,, troops, government supplies, mails, freight, and
property on their way from any state to another state, and to
receive compensation therefor, and to connect with roads of other
states so as to form continuous lines for the transportation of the
same to the place of destination,"
as Congress has not assumed to give to any corporation, company,
or person the affirmative right to transport from one state to
another state cattle that were liable to impart or capable of
communicating contagious, infectious, or communicable diseases.
Whether a corporation transporting, or the person causing to be
transported, from one state to another cattle of the class
specified in the Kansas statute should be liable in a civil action
for any damages sustained by the owners of domestic cattle by
reason of the introduction into their state of such diseased cattle
is a subject about which the Act of March 28, 1884, c. 60, 23 Stat.
31, known as the Animal Industry Act, did not make any
provision.
The provision in the Kansas act imposing such civil liability is
in aid of the objects which Congress had in view when it passed the
Animal Industry Act, and it was passed in execution of a power with
which the state did not part when entering the Union, namely, the
power to protect the people in the enjoyment of their rights of
property and to provide for the redress of wrongs within its
limits, and is not, within the meaning of the Constitution nor in
any just sense, a regulation of commerce among the states.
A state statute, although enacted in pursuance of a power not
surrendered to the general government, must in the executions of
its provisions yield in case of conflict to a statute
constitutionally enacted under authority conferred upon Congress,
and this without regard to the source of power whence the state
legislature derived its enactment.
Page 169 U. S. 614
Neither corporations nor individuals are entitled, by force
alone of the Constitution of the United States and without
liability for injuries resulting therefrom to others, to bring into
one state from another state cattle liable to impart or capable of
communicating disease to domestic cattle.
Although the powers of a state must in their exercise give way
to a power exerted by Congress under the Constitution, it has never
been adjudged that that instrument, by its own force, gives anyone
the right to introduce into a state, against its will, cattle so
affected with disease that their presence in the state will be
dangerous to domestic cattle.
Prior cases reviewed and held to proceed upon the ground that
the regulation of the enjoyment of the relative rights, and the
performance of the duties, of all persons within the jurisdiction
of a state belongs primarily to such state under its reserved power
to provide for the safety of all persons and property within its
limits, and that. even if the subject of such regulations be one
that may be taken under the exclusive control of Congress, and be
reached by national legislation, any action taken by the state upon
that subject that does not directly interfere with rights secured
by the Constitution of the United States or by some valid act of
Congress, must be respected until Congress intervenes.
An act of Congress that does no more than give authority to
railroad companies to carry "freight and property" over their
respective roads from one state to another state will not authorize
a railroad company to carry into a state cattle known, or which by
due diligence may be known, to be in such a condition as to impart
or communicate disease to the domestic cattle of such state.
If the carrier takes diseased cattle into a state, it does so
subject for any injury thereby done to domestic cattle to such
liability as may arise under any law of the state, that does not go
beyond the necessities of the case and burden or prohibit
interstate commerce, and a statute prescribing as a rule of civil
conduct that a person or corporation shall not bring into the state
cattle known, or which by proper diligence could be known, to be
capable of communicating disease to domestic cattle cannot be
regarded as beyond the necessities of the case, nor as interfering
with any right intended to be given or recognized by § 5268 of the
Revised Statutes.
If Congress could authorize the carrying of such cattle from one
state into another state, and by legislation protect the carrier
against all suits for damages arising therefrom, it has not done
so, nor has it enacted any statute that prevents a state from
prescribing such a rule of civil conduct as that found in the
statute of Kansas.
The case is stated in the opinion.
Page 169 U. S. 615
MR. JUSTICE HARLAN delivered the opinion of the court.
This action was brought in one of the courts of Kansas against
the Missouri, Kansas & Texas Railway Company, a corporation of
that state, and certain persons constituting the respective firms
of F. Brogan & Sons and Hozier Bros. Its object was to recover
the damages sustained by the plaintiff Charles Haber, one of the
appellees, by reason of the defendants having brought and caused to
be brought into that state certain cattle alleged to have been
affected with the disease known as Texas, splenic, or Spanish
fever, and communicated by them to the plaintiff's cattle, whereby
the latter sickened and died.
Many persons having like causes of action intervened as parties
defendant, and each by cross petition asked judgment against the
railway company.
It appeared in evidence that Hozier Bros., in the spring of
1892, owned and controlled a ranch of several thousand acres of
land in Pecos County, Texas, upon which cattle known as Texas
cattle were permitted to range. They entered into an agreement with
F. Brogan & Sons, whereby the latter were to receive from the
former a part of the above cattle at some point in Lyon County,
Kansas, and take them to their ranch in Chase County, in the same
state, to be there grazed during the summer of 1892. In execution
of that agreement, Hozier Bros. caused to be shipped by railroad
into Kansas from Pecos County, Texas, about 2,500 head of cattle,
which were delivered by the defendant company in its stockyards at
Hartford, Kansas, to F. Brogan & Sons, and by the latter were
driven through Lyon and Chase Counties to their range. These
cattle, it was alleged, communicated Texas, splenic, or Spanish
fever to domestic cattle that were owned by the plaintiff and by
the cross-petitioners.
The case was tried and submitted to the jury only as between the
plaintiff, the cross-petitioners, and the railway company,
Page 169 U. S. 616
the latter denying liability for any damages sustained by the
former. The trial resulted in verdicts and judgments in favor of
the plaintiff and of each of the cross-petitioners. The judgments
having been affirmed by one final judgment in the Supreme Court of
Kansas, the case is here upon a writ of error sued out by the
railway company, which contends that effect has been given to
statutes of the state that are repugnant to the Constitution and
laws of the United States. That contention involves the federal
question presented for determination.
In 1881, the Legislature of Kansas passed an act for the
protection of cattle in that state against contagious diseases.
Laws of Kansas, 1881, c. 161. But those provisions need not be set
out here, because they appear in subsequent enactments to which we
will presently refer.
By a state enactment approved March 25, 1884, provision was made
for a Live Stock Sanitary Commission, which was charged with the
duty of protecting "the health of the domestic animals of the state
from all contagious or infectious diseases of a malignant
character," and was empowered to establish, maintain, and enforce
such quarantine, sanitary, and other regulations as it deemed
necessary. Laws of 1884, c. 2. § 2. And by an Act approved March
26, 1884, that commission was authorized to create and enforce
quarantine against the disease known as Texas, splenic, or Spanish
fever in the unorganized counties of the state. Laws of 1884, c. 4,
§ 1. The commission was also authorized and directed by another act
approved on the same day to cooperate with the Commissioner of
Agriculture of the United States or any officer of the general
government in the suppression and extirpation of contagious
diseases among domestic animals, and in the enforcement and
execution of all acts of Congress passed to prevent the importation
or exportation of diseased cattle and the spread of infectious or
contagious disease among domestic animals. Laws of 1884, c. 5, §
1.
In 1885, another statute was passed, which was amended in 1891.
Laws 1891, c. 201. As amended, and as it appears in General
Statutes of Kansas of 1891, c. 139, p. 761,
Page 169 U. S. 617
that statute made it a misdemeanor for any person, between the
first day of February and the first day of December of any year, to
drive or cause to be driven into or through any county in the
state, or to turn upon or cause to be turned or kept upon any
highway, range, common, or pasture within the state, any cattle
capable of communicating or liable to impart what is known as
Texas, splenic, or Spanish fever. § 13. By another section, it was
made the duty of any sheriff, undersheriff, deputy sheriff, or
constable within the state, upon complaint made to him that there
were within the county where such officer resided cattle believed
to be capable of communicating or liable to impart the disease
known as Texas, splenic, or Spanish fever, to forthwith take charge
of and restrain them under such temporary quarantine regulations as
would prevent the communication of such disease, and make immediate
report thereof to the livestock sanitary commission. § 14.
Other sections provided:
"§ 16. Any person or persons who shall drive, ship or transport,
or cause to be shipped, driven or transported, into or through any
county in this state, any cattle liable or capable of communicating
Texas, splenic, or Spanish fever, to any domestic cattle of this
state, shall be liable to any person or persons injured thereby for
all damages that they may sustain by reason of the communication of
said disease, or Texas, splenic, or Spanish fever, to be recovered
in a civil action in any court of competent jurisdiction, and the
parties so injured shall have a first and prior lien to all other
liens for such damages on the cattle communicating the disease of
Texas, splenic, or Spanish fever."
"§ 17. In the trial of any person charged with the violation of
any provisions of this act, and in the trial of any civil action
brought to recover damages for the communication of Texas, splenic,
or Spanish fever, proof that the cattle which such person or
persons are charged with shipping, driving or keeping, or which are
claimed to have communicated the said diseases, were brought into
this state from south of the thirty-seventh parallel of north
latitude, shall be taken as
Page 169 U. S. 618
prima facie evidence that such cattle were, between the
first day of February and the first day of December of the year in
which the offense was committed, capable of communicating and
liable to impart Texas, splenic, or Spanish fever, within the
meaning of this act, and that the owner or owners or person or
persons in charge of such cattle had full knowledge and notice
thereof. If the owner or owners or person or persons in charge of
said cattle shall show by such certificate or certificates, as
shall hereafter be designated by the livestock sanitary commission
of the state, that the said cattle had been kept since the first
day of December of the previous year west of the twenty-second
meridian of longitude west from Washington, and north of the
thirty-fourth parallel of north latitude, the provisions of this
section shall not apply thereto."
"§ 18. Whenever two or more persons shall in violation of this
act at the same time or at different time during the same year,
drive or cause to be driven upon the same highway, range, common or
pasture within this state, any cattle capable of communicating or
liable to impart Texas, splenic, or Spanish fever, they shall be
jointly and severally liable for all damages that may arise from
the communication of such disease at any time thereafter during the
same year to any native, domestic or acclimated cattle that shall
have been upon the same highway, range, common or pasture so
previously traveled over by such first mentioned cattle."
The general contention of the plaintiff in error is that the Act
of Congress of March 29, 1884, 23 Stat. 31, c. 60, known as the
"Animal Industry Act," together with the Act of March 3, 1891, 26
Stat. 1044, 1049, c. 544, appropriating money to carry out the
provisions of that act, and § 5258 of the Revised Statutes,
relating to the transportation of passengers, freight, property,
etc., from one state to another state by railroad, cover
substantially the whole subject of the transportation from one
state to another state of livestock liable to impart or capable of
communicating infectious or contagious diseases, and therefore that
the State of Kansas has no authority to deal in any form with that
subject.
Page 169 U. S. 619
Are the acts of Congress and the regulations established under
their authority of such a character that the legislation of Kansas
is without effect so far as it relates to injury done to domestic
cattle by the bringing into that State of cattle liable to impart
or capable of communicating Texas, splenic, or Spanish fever to
domestic cattle?
The Act of Congress of March 29, 1884, provided for the
establishment of a Bureau of Animal Industry, and for the
appointment of a chief thereof, and two competent, practical stock
raisers or experienced businessmen, familiar with questions
pertaining to commercial transactions in livestock, whose duty it
should be, under the instructions of the Commissioner of
Agriculture, to investigate and report upon the condition of the
domestic animals of the United States, their protection and use,
and also to examine and report upon the best methods of treating,
transporting, and caring for animals and the means to be adopted
for the suppression and extirpation of contagious pleuro-pneumonia,
and to provide against the spread of other dangerous, contagious,
infectious, and communicable diseases. §§ 1, 2.
By other sections of the act, it was provided:
"§ 3. That it shall be the duty of the Commissioner of
Agriculture to prepare such rules and regulations as he may deem
necessary for the speedy and effectual suppression and extirpation
of said diseases, and to certify such rules and regulations to the
executive authority of each state and territory, and invite said
authorities to cooperate in the execution and enforcement of this
act. Whenever the plans and methods of the Commissioner of
Agriculture shall be accepted by any state or territory in which
pleuro-pneumonia or other contagious, infections, or communicable
disease is declared to exist, or such state or territory shall have
adopted plans and methods for the suppression and extirpation of
said diseases, and such plans and methods shall be accepted by the
Commissioner of Agriculture, and whenever the governor of a state
or other properly constituted authorities signify their readiness
to cooperate for the extinction of any contagious, infectious or
communicable disease in conformity with the provisions of
Page 169 U. S. 620
this act, the Commissioner of Agriculture is hereby authorized
to expend so much of the money appropriated by this act as may be
necessary in such investigations, and in such disinfection and
quarantine measures as may be necessary to prevent the spread of
the disease from one state or territory into another."
"§ 4. That in order to promote the exportation of livestock from
the United States, the Commissioner of Agriculture shall make
special investigation as to the existence of pleuro-pneumonia, or
any contagious, infectious or communicable disease, along the
dividing lines between the United States and foreign countries and
along the lines of transportation from all parts of the United
States to ports from which livestock are exported, and make report
of the results of such investigation to the Secretary of the
Treasury, who shall from time to time establish such regulations
concerning the exportation and transportation of livestock as the
results of said investigations may require."
"§ 5. That to prevent the exportation from any port of the
United States to any port in a foreign country of livestock
affected with any contagious, infectious or communicable disease,
and especially pleuro-pneumonia, the Secretary of the Treasury be,
and he is hereby, authorized to take such steps and adopt such
measures, not inconsistent with the provisions of this act, as he
may deem necessary."
"§ 6. That no railroad company within the United States, or the
owners or masters of any steam or sailing or other vessel or boat,
shall receive for transportation or transport, from one state or
territory to another, or from any state into the District of
Columbia, or from the District into any state, any livestock
affected with any contagious, infectious or communicable disease,
and especially the disease known as pleuro-pneumonia; nor shall any
person, company, or corporation deliver for such transportation to
any railroad company, or master or owner of any boat or vessel, any
livestock, knowing them to be affected with any contagious,
infectious or communicable disease; nor shall any person, company
or corporation drive on foot or transport in private conveyance
from
Page 169 U. S. 621
one state or territory to another, or from any state into the
District of Columbia, or from the District into any state, any
livestock, knowing them to be affected with any contagious,
infectious, or communicable disease, and especially the disease
known as pleuro-pneumonia,
provided, that the so-called
splenetic or Texas fever shall not be considered a contagious,
infectious or communicable disease within the meaning of sections
four, five, six and seven of this act, as to cattle being
transported by rail to market for slaughter, when the same are
unloaded only to be fed and watered in lots on the way
thereto."
"§ 7. That it shall be the duty of the Commissioner of
Agriculture to notify, in writing, the proper officials or agents
of any railroad, steamboat, or other transportation company doing
business in or through any infected locality, and by publication,
in such newspapers as he may select, of the existence of said
contagion, and any person or persons operating any such railroad,
or master or owner of any boat or vessel, or owner or custodian of
or person having control over such cattle or other livestock within
such infected district, who shall knowingly violate the provisions
of section six of this act, shall be guilty of a misdemeanor, and,
upon conviction, shall be punished by a fine not less than one
hundred nor more than five thousand dollars, or by imprisonment for
not more than one year, or by both such fine and imprisonment."
"§ 10. That the sum of one hundred and fifty thousand dollars,
to be immediately available, or so much thereof as may be
necessary, is hereby appropriated, out of any moneys in the
Treasury not otherwise appropriated, to carry into effect the
provisions of this act."
1. The answer of the railway company, as well as its requests
for instructions, and the opinion of the supreme court of the
state, show that the company contended throughout this litigation
that legislation by Congress and the regulations prescribed by the
Secretary of Agriculture in execution of the Animal Industry Act
furnished a complete defense to all claims for damages asserted in
this action. That contention
Page 169 U. S. 622
was overruled by the trial court, as well as by the supreme
court of the state. If the contention of the railway company had
been sustained, the verdict and judgment must have been in its
favor without reference to any other question in the case. In other
words, the state court could not properly have disposed of the case
without deciding the federal question raised by the company. This
Court therefore has jurisdiction to inquire whether the Supreme
Court of Kansas erred in holding that the legislation of Congress
and the regulations of the Secretary of the Interior
* gave to the
railway company the right, privilege, and immunity specially set up
and claimed by it. The motion to dismiss for want of jurisdiction
in this Court is consequently overruled.
Willson v.
Black Bird Creek Marsh Co., 2 Pet. 245,
27 U. S. 251;
Chicago Life Ins. Co. v. Needles, 113 U.
S. 574,
113 U. S. 579;
Sayward v. Denny, 158 U. S. 180,
158 U. S. 184;
Chicago, Burlington & Quincy Railroad v. Chicago,
166 U. S. 226,
166 U. S.
232.
2. If sections 16 and 17 of the Kansas act of 1885, as amended
in 1891, are not inconsistent with the legislation of Congress, no
question can be raised as to other provisions of the Kansas
statutes. The sixteenth section, we have seen, provides that any
person or persons, driving, shipping, or transporting, or causing
to be driven, shipped, or transported, into or through any county
in that state, cattle liable to impart or capable of communicating
Texas, splenic, or Spanish fever to any domestic cattle of Kansas
shall be liable in a civil action to any person injured thereby for
all damages sustained by reason of the communication of such fever
to his cattle, while the seventeenth section makes the bringing
into the state, from south of the thirty-seventh parallel of north
latitude, of cattle alleged to have communicated Texas, splenic, or
Spanish fever
Page 169 U. S. 623
to domestic cattle
prima facie evidence that such
cattle were, between February first and December first in any year,
capable of communication that disease, and that the owner or person
in charge of such cattle had full knowledge and notice thereof.
May not these statutory provisions stand without obstructing or
embarrassing the execution of the act of Congress? This question
must, of course, be determined with reference to the settled rule
that a statute enacted in execution of a reserved power of the
state is not to be regarded as inconsistent with an act of Congress
passed in the execution of a clear power under the Constitution
unless the repugnance or conflict is so direct and positive that
the two acts cannot be reconciled or stand together.
Sinnot v.
Davenport, 22 How. 227,
63 U. S.
243.
We have seen that the first section of the Animal Industry Act
provided for an investigation as to the condition of the domestic
animals of the United States, their protection and use, the causes
of contagious, infectious, and communicable diseases among them,
and the means for the prevention and cure of such diseases. The
second section provided for an examination as to the best methods
of treating, transporting, and caring for animals, and the means to
be adopted for the suppression and extirpation of contagious
pleuro-pneumonia, and to guard against the spreading of other
dangerous, contagious, infectious, and communicable diseases. If
any state was ready to cooperate with the Commissioner of
Agriculture, then, by the third section, that officer was
authorized to use the money appropriated by Congress in such
investigations and in such disinfection and quarantine measures as
were necessary "to prevent the spread of the disease from one state
or territory into another." While the states were invited to
cooperate with the general government in the execution and
enforcement of the act, whatever power they had to protect their
domestic cattle against such diseases was left untouched and
unimpaired by the act of Congress.
The act of Congress did not assume to give any corporation,
company, or person the affirmative right to transport from one
state to another state cattle that were liable to impart or capable
of communicating contagious, infectious, or communicable
Page 169 U. S. 624
diseases. On the contrary, it was made a misdemeanor to deliver
for transportation, or to transport or drive from one state to
another, cattle known to be affected with contagious, infectious,
or communicable diseases. Whether a corporation transporting, or
the person causing to be transported, from one state to another,
cattle of the class specified in the Kansas statute should be
liable in a civil action for any damages sustained by the owners of
domestic cattle by reason of the introduction into their State of
such diseased cattle is a subject about which the Animal Industry
Act did not make any provision. That act does not declare that the
regulations established by the Department of Agriculture should
have the effect to exempt from civil liability one who, but for
such regulations, would have been liable either under the general
principles of law or under some state enactment for damages arising
out of the introduction into that State of cattle so affected; and,
as will be seen from the regulations prescribed by the Secretary of
Agriculture, that officer did not assume to give protection to any
one against such liability.
By those regulations, the secretary gave notice to the "managers
and agents of railroad and transportation companies of the United
States, stockmen, and others" that "a contagious and infectious
disease known as splenetic or Southern fever exists among cattle"
within certain parts of the United States, the outer line of which
area or boundary was fully described by that officer. The same
regulations provided that, from the first day of March to the first
day of December, 1892, no cattle should be transported from any
part of the country included in that area or boundary to any part
of the United States north or west of the described line except by
rail for immediate slaughter, and when so transported, certain
directions were to be observed in handling and caring for them. The
regulations made provision for moving cattle from specified parts
of Tennessee in accordance with the rules established by the
authority of that state. Rules were also prescribed for moving
cattle from named counties in Texas to the States of Colorado,
Wyoming, and Montana, "in accordance
Page 169 U. S. 625
with the regulations made by said states for the admission of
Southern cattle thereto."
The cattle in question were originally received by the Texas and
Pacific Railroad at Midland, Texas, outside of but near to the
boundary of the "infected district" as defined by the Secretary of
Agriculture. They were received by the defendant company at
Dennison, Texas, as a connecting carrier, in the same cars in which
they were loaded, and the entire route to the southern boundary
line of Kansas was through that district. It may be that in the
transportation of the cattle in question from Pecos County, Texas
through the infected district, all the regulations prescribed by
the Secretary were observed. But that fact does not show that
Congress intended or assumed to exempt any one complying with those
regulations from liability to the owners of domestic cattle to
which were communicated the contagious disease with which the
cattle brought into the state were affected. The controlling object
of the regulations was to prevent the spreading from one state to
another of the cattle disease in question, not to deprive anyone of
the right to recover damages for injury inflicted upon his domestic
cattle by reason of their being brought into contact with diseased
cattle.
It is said that the statute of Kansas giving a right of action
for damages is, in itself, a regulation of commerce among the
states, and therefore inconsistent with the power of Congress to
regulate such commerce. But that statute is not, within the meaning
of the Constitution nor in any just sense, a regulation of commerce
among the states. It cannot be supposed to have been so intended,
even if its validity were to depend upon the intent with which it
was enacted. It did nothing more than declare, as a rule of civil
liability in Kansas, that anyone driving, shipping, or
transporting, or causing to be driven, shipped, or transported into
or through any county in that state cattle liable to impart or
capable of communicating Texas, splenic, or Spanish fever to
domestic cattle should be responsible in damages to any persons
injured thereby. In fact, the state law is in aid of the objects
which Congress had in view when it passed the Animal Industry Act.
It was
Page 169 U. S. 626
passed in execution of a power with which the state did not part
when entering the Union -- namely, the power to protect the people
in the enjoyment of their rights of property, and to provide for
the redress of wrongs within its limits. We must not be understood
as saying that this power may be so exerted as to defeat or burden
the exercise of any power granted to Congress. On the contrary, a
state statute, although enacted in pursuance of a power not
surrendered to the general government, must in the execution of its
provisions yield in case of conflict to a statute constitutionally
enacted under authority conferred upon Congress, and this, as was
said by Mr. Justice Nelson, speaking for the Court in
Sinnot v.
Davenport, above cited, "without regard to the source of power
whence the state legislature derived its enactment." This results,
as was said by Chief Justice Marshall in
Gibbons v.
Ogden, 9 Wheat. 1,
22 U. S. 210, as
well from the nature of the government as from the words of the
Constitution. In that case, the argument was pressed that if a law
passed by a state in the exercise of its acknowledged sovereignty
comes into conflict with a law passed by Congress in pursuance of
the Constitution, they affect the subject and each other like
"equal opposing powers." Touching that view, the Chief Justice
said:
"But the framers of our Constitution foresaw this state of
things and provided for it by declaring the supremacy not only of
itself, but of the laws made in pursuance of it. The nullity of any
act inconsistent with the Constitution is produced by the
declaration that the Constitution is the supreme law. The
appropriate application of that part of the clause which confers
the same supremacy on laws and treaties is to such acts of the
state legislatures as do not transcend their powers, but, though
enacted in the execution of acknowledged state powers, interfere
with or are contrary to the laws of Congress made in pursuance of
the Constitution or some treaty made under the authority of the
United States. In every such case, the act of Congress or the
treaty is supreme, and the law of the state, though enacted in the
exercise of powers not controverted, must yield to it."
Nor is the statute of Kansas to be deemed a regulation of
Page 169 U. S. 627
commerce among the states, simply because it may incidentally or
indirectly affect such commerce.
Hennington v. Georgia,
163 U. S. 299,
163 U. S. 317;
New York, New Haven & Hartford Railroad v. New York,
165 U. S. 628,
165 U. S. 631;
Chicago, Milwaukee & St. Paul Railway v. Solan,
169 U. S. 133;
Richmond & Alleghany Railroad v. Patterson Tobacco
Co., 169 U. S. 311, and
authorities cited in each case. Although the power of Congress to
regulate commerce among the states, and the power of the states to
regulate their purely domestic affairs, are distinct powers which
in their application may at times bear upon the same subject, no
collision that would disturb the harmony of the national and state
governments or produce any conflict between the two governments in
the exercise of their respective powers need occur unless the
national government, acting within the limits of its constitutional
authority, takes under its immediate control and exclusive
supervision the entire subject to which the state legislation may
refer. "The same bale of goods," Mr. Justice Johnson well said in
his concurring opinion in
Gibbons v. Ogden,
"the same cask of provisions, or the same ship, that may be the
subject of commercial regulations, may also be the vehicle of
disease. And the health laws that require them to be stopped and
ventilated are no more intended as regulations on commerce than the
laws which permit their importation are intended to inoculate the
community with disease. Their different purposes mark the
distinction between the powers brought into action, and, while
frankly exercised, they can produce no serious collision."
9 Wheat.
22 U. S. 235. It
is therefore a mistake to say that the Kansas statute, so far as it
gives a right of action for injuries arising from disease
communicated to domestic cattle by cattle of a particular kind
brought into the state, comes into conflict with any regulation
established under the authority of Congress to prevent the spread
of contagious or infectious diseases from one state to another.
That statute we repeat, only embodies a rule of civil conduct
prescribed by a state whose government is competent to regulate --
in subordination always to the supreme law of the land and its
Page 169 U. S. 628
own fundamental law -- the relative rights and obligations of
all within its jurisdiction. Neither corporations nor individuals
are entitled, by force alone of the Constitution of the United
States and without liability for injuries resulting therefrom to
others, to bring into one state from another state cattle liable to
impart or capable of communicating disease to domestic cattle. The
contrary cannot be affirmed under any sound interpretation of the
Constitution. This Court, while sustaining the power of Congress to
regulate commerce among the states, has steadily adhered to the
principle that the states possess, because they have never
surrendered, the power to protect the public health, the public
morals, and the public safety, by any legislation appropriate to
that end which does not encroach upon rights guarantied by the
national Constitution, nor come in conflict with acts of Congress
passed in pursuance of that instrument. Although the powers of a
state must in their exercise give way to a power exerted by
Congress under the Constitution, it has never been adjudged that
that instrument, by its own force, gives any one the right to
introduce into a state, against its will, cattle so affected with
disease that their presence in the state will be dangerous to
domestic cattle.
This principle is illustrated in many adjudged cases. In
Railroad Co. v. Husen, 95 U. S. 465,
95 U. S.
471-473 (a case much relied on by the plaintiff in
error), this Court held to be unconstitutional a statute of
Missouri declaring that no Texas, Mexican, or Indian cattle not
kept the entire previous winter in that state should be driven or
otherwise conveyed into or remain in any county in that state
between the first day of March and the first day of November in
each year. The statute contained a proviso to the effect
"that, when such cattle shall come across the line of this
state, loaded upon a railroad car or steamboat, and shall pass
through this state without being unloaded, such shall not be
construed as prohibited by this act; but the railroad company or
owners of a steamboat performing such transportation shall be
responsible for all damages which may result from the disease
called the Spanish or Texas fever, should the same occur along the
line
Page 169 U. S. 629
of such transportation, and the existence of such disease along
such route shall be
prima facie evidence that such disease
has been communicated by such transportation."
It also provided
"If any person or persons shall bring into this state any Texas,
Mexican or Indian cattle in violation of the first section of this
act, he or they shall be liable in all cases for all damages
sustained on account of disease communicated by said cattle."
In that case, the Court cited with approval the language of the
Supreme Court of Vermont in
Thorp v. Rutland & Burlington
Railroad, 27 Vt. 149, in which it was said that, by the
general police power of a state,
"persons and property are subjected to all kinds of restraints
and burdens, in order to secure the general comfort, health, and
prosperity of the state, of the perfect right of the legislature to
do which no question ever was or upon acknowledged general
principles ever can be made, so far as natural persons are
concerned."
Under that power, this Court said that while a state, by
legislation, may not invade the domain of the national government,
it may
exclude from its limits convicts, paupers, idiots,
and lunatics, persons likely to become a public charge, as well as
persons affected by contagious or infectious diseases; adding that
the same principle
"would justify the exclusion of property dangerous to the
property of citizens of the state -- for example,
animals
having contagious or infectious diseases."
Such exertions of power by a state, it was said, were
self-defensive. In affirming the invalidity of state legislation
professing to be an exercise of police powers for protection
against evils from abroad, but which was beyond the necessity for
its exercise, and interfered with the rights and powers of the
federal government, the Court, speaking by Mr. Justice Strong,
said:
"Tried by this rule, the statute of Missouri is a plain
intrusion upon the exclusive domain of Congress. 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
Page 169 U. S. 630
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 it 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."
The decision in that case was placed distinctly on the ground
that although the state could prevent persons and animals suffering
under contagious or infectious diseases, or convicts, etc., from
entering the state, it could not, under the cover of exerting its
police powers, substantially prohibit or burden either foreign or
interstate commerce, and the Missouri statute was held to be
unconstitutional because it went beyond the necessities of the
case, having been so drawn as to exclude all Texas, Mexican, or
Indian cattle from the state (except cattle to be transported
across and out of the state), whether free from disease or not, or
whether they would or would not do injury to the inhabitants of the
state.
No such criticism can be made of the statute of Kansas. It does
not prohibit the bringing into the State of
all Texas
cattle. It does not in any true sense prohibit or burden any
commerce among the states specifically authorized by Congress, but,
for purposes of self-protection only and in the exercise of its
inherent power to protect the property of its people, declared that
any corporation or person bringing into the state or driving into
or through any county of the state cattle liable to impart or
capable of communicating Texas, splenic, or Spanish fever to
domestic cattle, should be responsible in damages to any one to
whose cattle that disease was communicated by the cattle so brought
into the state.
The general views we have expressed are sustained by
Kimmish
v. Ball, 129 U. S. 217,
129 U. S.
220-222. That case involved the validity of section 4056
of the Iowa Code, providing in respect of Texas cattle that had not
been wintered at least one winter north of the southern boundary of
Missouri or Kansas, that
"if any person now or hereafter has in his possession
Page 169 U. S. 631
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."
It was contended that that section was in conflict with the
power of Congress gress to regulate commerce among the states, as
well as with Section 2 of Article IV of the Constitution of the
United States, relating to the privileges and immunities of
citizens of the several states. The Court stated that the statute
of Iowa was based upon the notorious fact that cattle which were
brought during the spring and summer months from Texas and Arkansas
and from the Indian Territory were often affected with what is
known as "Texas fever," and that all danger of infection therefrom
could be removed by cold weather, such as was usual in the country
north of the southern boundary of Missouri and Kansas. Speaking by
Mr. Justice Field, it said:
"Section 4059, with which we are concerned, provides that any
person who has in his possession in the State of Iowa any Texas
cattle which have not been wintered north shall be liable for any
damages that may accrue from allowing such cattle to run at large
and thereby spread the disease. We are unable to appreciate the
force of the objection that such legislation is in conflict with
the paramount authority of Congress to regulate interstate
commerce. We do not see that it has anything to do with that
commerce. It is only leveled against allowing diseased Texas cattle
held within the state to run at large."
In reference to the other objection made to the act, the Court
said:
"There is no denial of any rights and privileges to citizens of
other states which are accorded to citizens of Iowa. No one can
allow diseased cattle to run at large in Iowa without being held
responsible for the damages caused by the spread of the disease
thereby, and the clause of the Constitution declaring that the
citizens of each state shall be entitled to all privileges and
immunities of citizens in the several states does not give
nonresident citizens of Iowa any greater privileges and immunities
in that state than her own citizens there enjoy. So far as
liability is concerned for the act mentioned,
Page 169 U. S. 632
citizens of other states and citizens of Iowa stand upon the
same footing."
The case of
Sherlock v. Alling, 93 U. S.
99,
93 U. S. 103,
well illustrates the principle which we think must control the
present case. That was an action for damages under a statute of
Indiana giving a right of action in favor of the personal
representative of one whose death was caused by the wrongful act or
omission of another whenever the latter, if he had lived, could sue
for an injury for the same act or omission. In that case, the death
on account of which the suit was brought occurred by reason of a
collision between two steamboats navigating the Ohio River. It
appears from the report of the case that one of the grounds of
defense was that at the time of the alleged injuries, the colliding
boats were engaged in carrying on interstate commerce under the
laws of the United States, and that the defendants, as their
owners, were not liable for injuries occurring in navigation
through the carelessness of their officers except as prescribed by
Congress, and that the acts of Congress did not cover the liability
asserted by the plaintiff under the statute of Indiana. The act of
Congress referred to was that of March 30, 1852, 10 Stat. 65, c.
106, providing for the better security of the lives of passengers
on board of vessels propelled in whole or in part by steam. After
referring to some of the principal cases in which state enactments
had been held void for interfering with the freedom of interstate
commerce, the Court said that the Indiana statute
"imposes no tax, prescribes no duty, and in no respect
interferes with any regulations for the navigation and use of
vessels. It only declares a general principle respecting the
liability of all persons within the jurisdiction of the state for
torts resulting in the death of parties injured. And in the
application of the principle, it makes no difference where the
injury complained of occurred in the state, whether on land or on
water. General legislation of this kind prescribing the liabilities
or duties of citizens of a state without distinction as to pursuit
or calling is not open to any valid objection because it may affect
persons engaged in foreign or interstate commerce. Objection might
with equal propriety
Page 169 U. S. 633
be urged against legislation prescribing the form in which
contracts shall be authenticated, or property descend or be
distributed on the death of its owner, because applicable to
contracts or estates of persons engaged in such commerce. In
conferring upon Congress the regulation of commerce, it was never
intended to cut the state off from legislating on all subjects
relating to the health, life, and safety of their citizens, though
the legislation might indirectly affect the commerce of the
country. Legislation, in a great variety of ways, may affect
commerce and persons engaged in it without constituting a
regulation of it, within the meaning of the Constitution."
Again, in the same case:
"Until Congress therefore makes some regulation touching the
liability of parties for marine torts resulting in the death of the
persons injured, we are of opinion that the statute of Indiana
applies, giving a right of action in such cases to the personal
representatives of the deceased, and that, as thus applied, it
constitutes no encroachment upon the commercial power of
Congress."
In
Patterson v. Kentucky, 97 U. S.
501,
97 U. S. 505,
this Court said that "the states may, by police regulations,
protect their people against the introduction within their
respective limits of infected merchandise," and, by like
regulations,
"exclude from their midst, not only convicts, paupers, idiots,
lunatics, and persons likely to become a public charge, but animals
having contagious diseases."
So it has been held that, in the absence of legislation by
Congress on the subject, a state may prescribe as a rule of civil
conduct that engineers on railroad trains engaged in the
transportation of passengers and freight, including interstate
trains, shall undergo an examination by a state board as to their
qualifications before becoming entitled to operate locomotive
engines within such state, and that persons employed on railways
shall be subjected to like examination with respect to their powers
of vision.
Smith v. Alabama, 124 U.
S. 465,
124 U. S. 482;
Nashville &c. Railway v. Alabama, 128 U. S.
96,
128 U. S.
101.
In
New York, New Haven & Hartford Railroad. v. New
York, 165 U. S. 628,
165 U. S. 633,
it was contended that section 5258
Page 169 U. S. 634
of the Revised Statutes, relating to transportation of persons
and property from one state to another state, so far covered the
whole subject of interstate transportation as to render
inapplicable to interstate carriers a statute of New York
regulating the heating of steam passenger cars and directing guards
and guard posts to be placed on railroad bridges and trestles. But
this Court said that the authority conferred by Congress
"upon railroad companies engaged in commerce among the states,
whatever may be the extent of such authority, does not interfere in
any degree with the passage by the State of laws having for their
object the personal security of passengers while traveling, within
their respective limits, from one state to another, on cars
propelled by steam."
In
Western Union Tel. Co. v. James, 162 U.
S. 650,
162 U. S. 660,
this Court sustained as valid a statute of Georgia requiring ever
telegraph company with a line of wires wholly or partly within that
state to receive dispatches, and, on payment of the usual charges,
to transmit or deliver them with due diligence, under a penalty of
one hundred dollars. It was contended in that case, as to telegraph
messages from points outside to points inside the state, that the
local statute was a regulation of interstate commerce, and
therefore void. That contention was overruled, the Court
saying:
"It would not unfavorably affect or embarrass it in the course
of its employment, and hence, until Congress speaks upon the
subject, it would seem that such a statute must be valid. It is the
duty of a telegraph company which receives a message for
transmission directed to an individual at one of its stations to
deliver that message to the person to whom it is addressed with
reasonable diligence and in good faith. That is a part of its
contract, implied by taking the message and receiving payment
therefor. The statute in question is of a nature that is in aid of
the performance of a duty of the company that would exist in the
absence of any such statute, and it is in no wise obstructive of
its duty as a telegraph company. It imposes a penalty for the
purpose of enforcing this general duty of the company. The
direction that the delivery of the message shall be made with
impartiality and in good faith,
Page 169 U. S. 635
and with due diligence, is not an addition to the duty which it
would owe in the absence of such a statute. Can it be said that the
imposition of a penalty for the violation of a duty which the
company owed by the general law of the land is a regulation of or
an obstruction to interstate commerce, within the meaning of that
clause of the federal Constitution under discussion? We think
not."
These cases all proceed upon the ground that the regulation of
the enjoyment of the relative rights, and the performance of the
duties, of all persons within the jurisdiction of a state, belong
primarily to such state, under its reserved power to provide for
the safety of all persons and property within its limits, and that
even if the subject of such regulations be one that may be taken
under the exclusive control of Congress and be reached by national
legislation, any action taken by the state upon that subject that
does not directly interfere with rights secured by the Constitution
of the United States or by some valid act of Congress must be
respected until Congress intervenes.
It is suggested that the statute is so drawn that the railway
company would be liable even if it acted in good faith and had no
reason to believe, after the exercise of the utmost diligence, that
the cattle it received for transportation were liable to impart or
were capable of communicating the fever named in the statute. If
the statute were thus interpreted, it might be -- though upon that
point we express no opinion -- that it would be so oppressive in
its necessary operation as to be deemed a burden upon the
transportation of all cattle from Texas, whether diseased or not,
and for that reason be liable to the same objection urged against
the statute involved in
Railroad Co. v. Husen. But we do
not so construe the statute. Its sixteenth section must be
interpreted in connection with the seventeenth section. The latter,
as we have stated, declares that in the trial of any civil action
under the statute, proof that the cattle were brought into the
state from south of the thirty-seventh parallel of north latitude
(the southern boundary line of Kansas) should be
prima
facie evidence that they were, between the first day of
February
Page 169 U. S. 636
and the first day of December, capable of communicating and
liable to impart Texas, splenic, or Spanish fever, and that "the
owner or owners, or person or persons, in charge of such cattle,
had full knowledge or notice thereof." As the state is competent to
protect its domestic cattle against disease that may be
communicated by cattle coming from beyond its limits, this rule of
evidence cannot be regarded as inconsistent with any right secured
by the national Constitution or as obstructing commerce among the
states, for the rule finds its justification in the fact,
heretofore recognized by this Court, and substantially by the act
of Congress, that Texas cattle, when brought northward during the
spring and summer months, often carry the germs of fever, or are
often, though not always, infected with fever that may be
communicated by them to domestic cattle. That rule, as prescribed,
implies that damages shall not be recovered if, from all the
evidence, it appears that the defendant had no knowledge or notice
that the cattle were of the kind forbidden by the statute to be
brought into the state. This was the interpretation placed upon the
statute by the plaintiff. His petition alleges that before the
cattle in question were shipped, transported, and driven as stated,
the defendants had knowledge and were put upon inquiry and had
reason to know that
"said Texas cattle so kept, shipped, transported, and driven
were of a kind capable of communicating and liable to communicate
and impart said disease to the domestic cattle of this state, and
to the aforesaid cattle of the plaintiff."
And under this construction of the statute the case was tried.
The trial court, among other things, instructed the jury:
"The mere fact that the cattle of the plaintiff or those of any
of the cross-petitioning defendants became sick and died from this
disease, imparted to them by cattle transported by the said
defendant into Lyon or Chase Counties, is not sufficient to warrant
a finding against said defendant railway company. You must find
from the evidence first that Texas cattle were in fact brought into
this state. Of this there is no denial, and you can consider that
fact as established. Second, that the cattle of the plaintiff and
each of the cross-petitioning defendants who seek to recover herein
against
Page 169 U. S. 637
said railway because of the loss of cattle became infected and
died because of the disease imparted to them by such Texas cattle,
and that such disease was Texas, splenic, or Spanish fever. And
third, that the officers, employees, or agents of the railway
company defendant had knowledge that such Texas cattle transported
by it to this state were liable to impart such disease to the
native cattle of this state, or that they ought, by the exercise of
diligence and care, to have known of the dangerous character of
these cattle, and that they would or were liable to impart said
disease to the native cattle of this state."
We do not understand from the opinion of the supreme court of
the state that it disagreed with this interpretation of the
statute.
3. In support of the contention that national legislation leaves
no room for state enactments relating to the bringing of diseased
cattle into one state from another state, the railway company
refers to the Act of Congress approved March 3, 1891, 26 Stat.
1044, 1049, c. 544, appropriating $500,000 for carrying out the
provisions of the act for establishing the Bureau of Animal
Industry, and which authorized the Secretary of Agriculture to use
any part of that sum he might deem necessary or expedient, and in
such manner as he might think best to prevent the spread of
pleuro-pneumonia and other diseases of animals, and for this
purpose to employ as many persons as he might deem necessary, and
to expend any part of that sum in the purchase and destruction of
diseased or exposed animals and the quarantine of the same whenever
in his judgment it is essential to prevent the spread of
pleuro-pneumonia or other diseases of animals from one state into
another. This contention is disposed of by what has already been
said.
4. In support of the same contention, the company refers to
section 5258 of the Revised Statutes of the United States, brought
forward from the Act of June 15, 1866, 14 Stat. 66, c. 124, which
authorizes every railroad company in the United States operated by
steam, its successors and assigns,
"to carry upon and over its road, boats, bridge and ferries, all
passengers, troops, government supplies, mails, freight
Page 169 U. S. 638
and property on their way from any state to another state, and
to receive compensation therefor, and to connect with roads of
other states so as to form continuous lines for the transportation
of the same to the place of destination."
It is scarcely necessary to say that an act of Congress that
does no more than give authority to railroad companies to carry
"freight and property" over their respective roads from one state
to another state will not authorize a railroad company to carry
into a state cattle known, or which by due diligence may be known,
to be in such a condition as to impart or communicate disease to
the domestic cattle of such state. A railroad company carrying
diseased cattle into a state cannot claim the protection of section
5258, any more than it could when carrying into a state rags known,
or which by proper diligence could have been known, to be infected
with yellow fever. If the carrier takes diseased cattle into a
state, it does so subject for any injury thereby done to domestic
cattle to such liability as may arise under any law of the state
that does not go beyond the necessities of the case and burden or
prohibit interstate commerce. A statute prescribing as a rule of
civil conduct that a person or corporation bringing into the state
cattle that are known, or which by proper diligence could be known,
to be capable of communicating disease to domestic cattle cannot be
regarded as beyond the necessities of the case, nor as interfering
with any right intended to be given or recognized by section 5258
of the Revised Statutes.
Applying the principles settled in prior cases to the case
before us, it is clear that a railroad company is not in any just
sense hindered or obstructed by the statute of Kansas in the
exercise of any privilege given or authority conferred by section
5258 of the Revised Statutes. This must be so unless the company
should be held to be entitled, of right, to carry into a state from
another state as freight or property cattle liable to impart or
capable of communicating disease, and of whose condition at the
time it had knowledge or could have had knowledge by the exercise
of reasonable diligence. We cannot so hold. And we adjudge that if
Congress could authorize the carrying of such cattle from one state
into another
Page 169 U. S. 639
state and by legislation protect the carrier against all suits
for damages arising therefrom, it has not done so; nor has it
enacted any statute that prevents a state from prescribing such a
rule of civil conduct as that found in the statute of Kansas.
5. Much was said at the bar about the finding of the jury being
against the evidence. We cannot enter upon such an inquiry. The
facts must be taken as found by the jury, and this Court can only
consider whether the statute, as interpreted to the jury, was in
violation of the federal Constitution.
Chicago, Burlington
& Quincy Railroad v. Chicago, 166 U.
S. 226,
166 U. S.
242-246.
Perceiving no error in the record in respect of any question of
a federal nature, the judgment of the Supreme Court of Kansas
is
Affirmed.
* By the Act approved February 9, 1889, 25 Stat. 659, c. 122,
the Department of Agriculture was made an executive department. And
by the Act of March 2, 1889, 25 Stat. 835, 840, c. 373, the
authority granted to the Commissioner of Agriculture by the Act of
May 29, 1884, establishing the Bureau of Animal Industry, and by
the provision of the appropriation act for the agricultural
department approved July 18, 1888, relating to that bureau, was
vested in the Secretary of Agriculture. The regulations above
referred to were issued by Secretary Rusk, February 26, 1892.
MR. JUSTICE BREWER, dissenting.
I am unable to concur in the opinion filed in this case. The
statute provides that a carrier bringing into the state cattle
which are capable of communicating Texas, splenic, or Spanish fever
to domestic cattle shall be liable to any persons injured thereby
for all damages they may sustain by reason of the communication of
said fever. This liability is not limited to the injury which may
be done by the cattle while in the possession of the carrier, but
extends to that which may be done at any time thereafter in
whosesoever possession they may be. And in this particular case, it
is found by the jury that the fever was communicated and the injury
done after the cattle had passed out of the custody of the carrier
and into the possession of other persons. The statute also provides
that proof that the cattle were brought into Kansas from territory
south of the Kansas state line shall be
prima facie
evidence that they were capable of communicating the fever, and
that the carrier had knowledge of that fact.
I am not disposed to belittle this question, or the difficulties
which attend the effort to prevent a communication of Texas fever
and the injuries which result therefrom. On the contrary,
Page 169 U. S. 640
I fully appreciate the importance of securing to all stock
owners in Kansas and elsewhere the fullest protection against this
so fatal disease, and believe that stringent measures may properly
be adopted to accomplish this result. I differ with my brethren
only as to the authority by which such measures should be enacted
and as to the validity of the legislation before us. It is conceded
in the opinion of the majority that Congress has full control over
interstate commerce, and that it is the only authority by which
that commerce can be regulated. On the other hand, it is equally
clear, as pointed out, that the states may make many police
restrictions and provisions which, while indirectly affecting
interstate commerce, do not directly regulate it, and the question
is whether this particular statute comes within the category of
such police regulations.
It must be premised that Southern cattle which are capable of
communicating this disease are not necessarily themselves diseased,
or their meat unfit for consumption. This is not a mere conjecture,
but a well established fact. In the report of the Bureau of Animal
Industry for the years 1891 and 1892, which contains the results of
investigations into the nature, cause, and prevention of cattle
fever, it is said, on pages 266 and 267:
"The presence of the parasite in Southern cattle does not seem
to materially affect their health, although it may maintain a more
or less constant breaking up of the red corpuscles on a small
scale, which would necessarily tax certain vital organs. . . . From
a practical economic standpoint, we must maintain that Southern
cattle may be healthy, and yet be the cause of Texas fever."
And in the final summing up of the conclusions of the
investigators, on page 290, it is further stated: "Cattle from the
permanently infected territory, though otherwise healthy, carry the
microparasite of Texas fever in their blood."
And in the regulations concerning cattle transportation,
promulgated by the United States Department of Agriculture on
February 26, 1892, as appears from the record in this case, as also
in similar regulations issued by the same department on December
15, 1897, it is provided that, within certain specified
Page 169 U. S. 641
dates, no cattle are to be transported from below the federal
quarantine line except by rail or boat for immediate slaughter.
These cattle are being constantly forwarded by the thousands to the
packing houses of this country, and, when butchered, their meat is
shipped all over the world, and used with impunity. Statistics
found in the cases of
Cotting v. Kansas City Stockyards
Company and
Hopkins v. United States, now pending in
this Court, show that in the year 1896 (and that is but a sample of
other years), of something over 1,700,000 head of cattle shipped to
the Kansas City stockyards, more than 500,000 came from the
territory proscribed by the Kansas statute, and that of these
cattle, 60 percent or more were sold to the packing houses there
situate for immediate slaughter.
It appears from the report above referred to that this fever is
generally disseminated by means of a tick, technically called
"boophilus bovis," though the jury in this case, in answer to
specific questions, found that the fever was communicable otherwise
than in that way. The presence of ticks upon the cattle does not
necessarily indicate disease. They are purely external, like fleas
on a dog, and do not prove that the body is in an unhealthy
condition. It may be a curious fact, the cause of which is not yet
fully explained, that these cattle range in the South without
developing in themselves or communicating to others this Texas
fever, while, when brought into the temperate zone, they seem to
communicate it freely and in a most dangerous form. Whatever may be
the explanation of this fact does not abridge its significance.
Hence it is that these Southern cattle, although they may have
ticks upon them, and thus be liable to communicate the disease to
Northern cattle, may be entirely free from any disease, their meat
a perfectly healthy article of food, and they themselves legitimate
subjects of commerce. If they are, when brought into the North,
pastured at a distance from native cattle, and the latter are not
thereafter permitted to range in the field in which the former have
been kept, the disease will not be communicated; the Southern
cattle may safely be fattened, and prepared for market and use. It
is only when the native
Page 169 U. S. 642
cattle are permitted to pasture in or near the grounds in which
the Southern cattle are or have recently been kept that injury
results. The case presented therefore is not that of legislation to
prevent importation of diseased meat -- that which in itself is
unhealthy and unfit for use -- but something which, if improperly
or carelessly handled, may communicate disease and do injury. The
very phraseology of the statute indicates this. It does not name
diseased cattle, but only those liable to communicate disease. If
other Northern states follow with like legislation, commerce
between the two sections of the country in this most important
product of portions of the South will be practically
interrupted.
The cases referred to in the opinion of the majority in which
the police power of the state has been sustained were cases in
which the restrictions or regulations only indirectly affected
interstate commerce -- as, for instance, requiring an engineer to
take out a state license.
Smith v. Alabama, 124 U.
S. 465, or to be free from and submit to an examination
for color blindness,
Nashville & St. Louis Railway v.
Alabama, 128 U. S. 96,
prescribing the mode of heating passenger cars,
New York, New
Haven & Hartford Railroad v. New York, 165 U.
S. 628, requiring the prompt delivery of telegraphic
messages under condition of a penalty,
Western Union Telegraph
v. James, 162 U. S. 650.
Nothing of that kind is prescribed by this statute. No inspection
is provided for by the state; none required of the carrier; no duty
imposed in respect to the handling and care of the cattle while in
its possession. It simply prescribes the conditions upon which the
carrier may bring cattle into the state, to-wit, liability not
merely for injury which its own improper handling may cause, but
for injury which may result at any time thereafter from any future
improper handling by the consignee or subsequent party into whose
custody the cattle may pass. It seems to me, beyond any
peradventure, this is legislation directly regulating commerce
between the states, and, as such, is within the sole dominion of
Congress. It materially affects the conduct of the carrier outside
of the limits of the state, and that is one of the tests of
invalidity.
Hall v. De Cuir, 95 U. S.
485,
95 U. S.
488;
Page 169 U. S. 643
Bowman v. Chicago & Northwestern Railway,
125 U. S. 465,
125 U. S. 486.
Suppose cattle are presented to a carrier in Texas for shipment to
Kansas, can it properly refuse to receive and transmit? Can it
plead the Kansas statute in defense of its duty as a common
carrier? If it says that the cattle have ticks upon them, and
therefore are liable to communicate Texas fever, or, if not having
ticks upon them, may otherwise (as shown by the verdict of this
jury) communicate the disease, the shipper may reply that he
intends them for immediate slaughter, and that they are a
legitimate article of commerce. But that will not relieve the
carrier. The liability imposed by the Kansas statute does not
depend upon the intent with which the cattle are shipped into the
state, and, having delivered them to the consignee, the carrier has
no further control. Although shipped with the intention of
immediate slaughter, the consignee may change his mind and pasture
them in the state. Whatever may have been the intention of the
shipment, the liability of the carrier is the same.
I cannot believe that the carrier is thus placed beneath the
upper and the nether millstone, liable, under the law of Texas to
the owner of the cattle if he refuses to ship them,
Bowman v.
Chicago & Northwestern Railway, supra, and liable to
anyone in Kansas, under the Kansas statute, if injuries result from
the improper handling by the consignee or others. The presumption
of knowledge, which is provided for in section 17, is, in this
aspect of the case, entirely immaterial, and does not affect the
validity of the statute. Apply the principle of this legislation to
other objects than cattle and see in what it results. Gunpowder,
dynamite, many of the drugs used in medicine, while legitimate
articles of commerce and of great value for certain purposes, may,
if improperly or carelessly handled, be the means of doing immense
injury. Can a state say to a carrier,
"You may bring gunpowder or any other article of danger into the
state, but, if you know its dangerous character, you shall be
responsible for all damages that it may cause in the hands of the
consignee or any subsequent party through improper handling?"
It certainly places it in the power of the state to most
materially interfere with interstate
Page 169 U. S. 644
commerce if it can prescribe that as a condition of its being
carried on. The number of articles and the amount of interstate
commerce thus subjected to the will of the state can scarcely be
overestimated.
It is undoubtedly true that legislation should be had in respect
to matters of this kind, but, in my judgment, such legislation can
only come from Congress, and that body, and that body alone, can
prescribe the conditions upon which commerce in these cattle can be
carried on. Congress has legislated, but only partially, and the
fact that its legislation does not go so far as in the judgment of
the Legislature of Kansas is required is not, in my opinion,
sufficient to warrant the state in enacting this statute. For these
reasons, thus briefly stated, I am compelled to dissent from the
opinion of the court.