While the state may not legislate for the direct control of
interstate commerce, a proper police regulation which does not
conflict with congressional legislation on the subject involved is
not necessarily unconstitutional because it may have an indirect
effect upon interstate commerce.
Until Congress acts on the subject, a state may, in the exercise
of its police power, enact laws for the inspection of cattle coming
from other states.
Reid v. Colorado, 187 U.
S. 137.
Congress has not enacted any legislation destroying the right of
a state to provide for the inspection of cattle and prohibiting the
bringing within its borders of diseased cattle not inspected and
passed as healthy either by the proper state or national
officials.
A state may not, under pretense of protecting the public health,
exclude the products or merchandise of other states, and this Court
will determine for itself whether it is a genuine exercise of the
police power or really and substantially a regulation of interstate
commerce.
Section 27 of Chap. 495 of the laws of Kansas of 1905,
prohibiting the transportation of cattle from any point south of
the state into the state except for immediate slaughter which have
not been passed as healthy by the proper state officials or by the
National Bureau of Animal Industry is a proper police regulation
within the power of the state, is not in conflict with the Act of
February 2, 1903, 32 Stat. 791, or the Act of March 3, 1905, 33
Stat 1204, in regard to inspection of cattle, and is not
unconstitutional as a direct regulation of interstate commerce.
60 Kans. 51 affirmed.
The facts are stated in the opinion.
Page 209 U. S. 253
MR. JUSTICE MOODY delivered the opinion of the Court.
A statute of the State of Kansas makes it a misdemeanor,
punishable by fine or imprisonment or both, for any person to
transport into the state cattle from any point south of the south
line of the state, except for immediate slaughter, without
having
Page 209 U. S. 254
first caused them to be inspected and passed as healthy by the
proper state officials or by the Bureau of Animal Industry of the
Interior Department of the United States. Session Laws of 1905, c.
495, ยง 27. The plaintiff in error was duly charged by information
in the state court with a violation of this statute, and found
guilty by the verdict of a jury. The conviction was affirmed by the
supreme court of the state, and the case is now here on a writ of
error, allowed by the chief justice of that court. The only federal
question insisted upon in argument is whether the statute was a
restriction of interstate commerce which was not within the power
of a state to impose.
The obvious purpose of the law was to guard against the
introduction into the state of cattle infected with a communicable
disease. It undoubtedly restricts the absolute freedom of
interstate commerce in cattle, but only to the extent that all
cattle coming to cross the guarded boundary are subjected to
inspection to ascertain whether or not they are diseased. If
healthy, they are admitted; if diseased they are excluded. The
validity of such a restriction for such purposes has been
frequently considered by this Court, and the principles applicable
to the settlement of the question have been clearly defined. The
governmental power over the commerce which is interstate is vested
exclusively in the Congress by the commerce clause of the
Constitution, and therefore is withdrawn from the states. It is not
now necessary to cite the many cases supporting this proposition,
or to consider some expressions in the books somewhat qualifying
its generality, because, in carefully chosen words, it has recently
been affirmed by us. At this term, MR. JUSTICE PECKHAM, speaking
for the Court, said:
"That any exercise of state authority, in whatever form
manifested, which directly regulates interstate commerce, is
repugnant to the commerce clause of the Constitution is
obvious."
Atlantic Coast Line v. Wharton, 207 U.
S. 328,
207 U. S.
334.
But, though it may not legislate for the direct control of
interstate commerce, the state may exercise any part of the
legislative
Page 209 U. S. 255
power which was not withdrawn from it expressly or by
implication by the scheme of government put into operation by the
federal Constitution. It may sometimes happen that a law passed in
pursuance of the acknowledged power of the state will have an
indirect effect upon interstate commerce. Such a law, though it is
essential to its validity that authority be found in a governmental
power entirely distinct from the power to regulate interstate
commerce, may reach and indirectly control that subject. It was at
an early day observed by Chief Justice Marshall that legislation
referable to entirely different legislative powers might affect the
same subject. He said in
Gibbons v.
Ogden, 9 Wheat. 194,
22 U. S. 204:
"So, if a state, in passing laws on subjects acknowledged to be
within its control, and, with a view to those subjects, shall adopt
a measure of the same character with one which Congress may adopt,
it does not derive its authority from the particular power which
has been granted, but from some other, which remains with the
state, and may be executed by the same means. All experience shows
that the same measures, or measures scarcely distinguishable from
each other, may flow from distinct powers; but this does not prove
that the powers themselves are identical. Although the means used
in their execution may sometimes approach each other so nearly as
to be confounded, there are other situations in which they are
sufficiently distinct to establish their individuality."
"In our complex system, presenting the rare and difficult scheme
of one general government, whose action extends over the whole, but
which possesses only certain enumerated powers, and of numerous
state governments, which retain and exercise all powers not
delegated to the Union, contests respecting power must arise. Were
it even otherwise, the measures taken by the respective governments
to execute their acknowledged powers would often be of the same
description, and might, sometimes, interfere. This, however, does
not prove that the one is exercising, or has a right to exercise,
the powers of the other. "
Page 209 U. S. 256
Foreseeing cases where national and state legislation based upon
different powers might, in their application, be brought into
conflict, he, in the same case (p.
22 U. S. 211),
declared that then "the law of the state, though enacted in the
exercise of powers not controverted, must yield" -- a rule which
has constantly been applied by this Court. These general principles
control the decision of the case at bar. Cattle, while in the
course of transportation from one state to another, and in that
respect under the exclusive control of the law of the national
government, may at the same time be the conveyance by which disease
is brought within the state to which they are destined, and in that
respect subject to the power of the state, exercised in good faith
to protect the health of its own animals and its own people. In the
execution of that power, the state may enact laws for the
inspection of animals coming from other states with the purpose of
excluding those which are diseased and admitting those which are
healthy.
Reid v. Colorado, 187 U.
S. 137.
The state may not, however, for this purpose, exclude all
animals, whether diseased or not, coming from other states,
Railroad v. Husen, 95 U. S. 465, nor,
under the pretense of protecting the public health, employ
inspection laws to exclude from its borders the products or
merchandise of other states, and this Court will assume the duty of
determining for itself whether the statute before it is a genuine
exercise of an acknowledged state power, or whether, on the other
hand, under the guise of an inspection law, it is really and
substantially a regulation of foreign or interstate commerce which
the Constitution has conferred exclusively upon the Congress.
Minnesota v. Barber, 136 U. S. 313;
Brimmer v. Rebman, 138 U. S. 78;
Patapsco Guano Co. v. Board of Agriculture, 171 U.
S. 345. Tested by these principles, the statute before
us is an inspection law and nothing else; it excludes only cattle
found to be diseased; and, in the absence of controlling
legislation by Congress, it is clearly within the authority of the
state, even though it may have an incidental and indirect effect
upon commerce between the states.
Page 209 U. S. 257
The cause, however, cannot be disposed of without inquiring
whether there was, at the time of the offense, any legislation of
Congress conflicting with the state law. If such legislation were
in existence, the state law, so far as it affected interstate
commerce, would be compelled to yield to its superior authority.
This question was considered and the national legislation carefully
examined in
Reid v. Colorado, supra, and the conclusion
reached that Congress had not then taken any action which had the
effect of destroying the right of the state to act on the subject.
It was there said, p.
187 U. S.
148:
"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,
and which endangered the health of domestic animals. Nor did
Congress give the department authority, by its officers or agents,
to inspect cattle within the limits of a state and give a
certificate that should be of superior authority in that or other
states, or which should entitle the owner to carry his cattle into
or through another state without reference to the reasonable and
valid regulations which the latter state may have adopted for the
protection of its own domestic animals. It should never be held
that Congress intends to supersede or by its legislation suspend
the exercise of the police powers of the states, even when it may
do so, unless its purpose to effect that result is clearly
manifested."
There has, however, been later national legislation which needs
to be noticed. Large powers to control the interstate movement of
cattle liable to be afflicted with a communicable disease have been
conferred upon the Secretaries of Agriculture by the Act of
February 2, 1903, 32 Stat. 791, c. 349, and the Act of March 3,
1905, 33 Stat. 1264, c. 1496. The provisions of these acts need not
be fully stated. The only part of them which seems relevant to this
case and the question under consideration which arises in it is
contained in the law of 1903. In that law it is enacted that, when
an inspector of the Bureau of Animal Industry has issued a
certificate that he has inspected cattle or livestock and found
Page 209 U. S. 258
them free from infectious, contagious, or communicable
disease,
"such animals so inspected and certified may be shipped, driven,
or transported . . . into . . . any state or territory . . .
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."
There can be no doubt that this is the supreme law, and, if the
state law conflicts with it, the state law must yield. But the law
of Kansas now before us recognizes the supremacy of the national
law and conforms to it. The state law admits cattle inspected and
certified by an inspector of the Bureau of Animal Industry of the
United States, thus avoiding a conflict with the national law. Rule
13, issued by the Secretary of Agriculture under the authority of
the statute, is brought to our attention by the plaintiff in error.
It is enough to say now that the rule is directed to transportation
of cattle from quarantined states, which is not this case, and that
in terms it recognizes restrictions imposed by the State of
destination. Our attention is called to no other provision of
national law which conflicts with the state law before us, and we
have discovered none.
Judgment affirmed.