1. The statute of Missouri which prohibits driving or conveying
any Texas, Mexican, or Indian cattle into the state between the
first day of March and the first day of November in each year is in
conflict with the clause of the Constitution that ordains "Congress
shall have power to regulate commerce with foreign nations, and
among the several states, and with the Indian tribes."
2. Such a statute is more than a quarantine regulation, and not
a legitimate exercise of the police power of the state.
3. That power cannot be exercised over the interstate
transportation of subjects of commerce.
4. While a state may enact sanitary laws, and, for the purpose
of self-protection, establish quarantine and reasonable inspection
regulations, and prevent persons and animals having contagious or
infectious diseases from entering the state, it cannot, beyond what
is absolutely necessary for self-protection, interfere with
transportation into or through its territory.
5. Neither the unlimited powers of a state to tax nor any of its
large police powers can be exercised to such an extent as to work a
practical assumption of the powers conferred by the Constitution
upon Congress.
6. Since the range of a state's police power comes very near to
the field committed by the Constitution to Congress, it is the duty
of courts to guard vigilantly against any needless intrusion.
An Act of the Legislature of Missouri approved Jan. 23, 1872, 1
Wagner's Stat. 251, provides as follows:
"SECTION 1. No Texas, Mexican, or Indian cattle shall be driven
or otherwise conveyed into or remain in any county in this state
between the first day of March and the first day of November in
each year, by any person or persons whatsoever,
provided
that nothing in this section shall apply to any cattle which have
been kept the entire previous winter in this state;
provided
further that when such cattle shall come across the line of
this state loaded
Page 95 U. S. 466
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 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."
"SEC. 9. 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."
Husen brought this action against the Hannibal & St. Joseph
Railroad Company for damages alleged to have been done him by means
of the company's violation of the foregoing act.
On the trial in the Circuit Court for Grundy County it was,
among other things, objected by the company that the act was in
violation of that part of Sec. 8 of Art. I of the Constitution of
the United States which provides that Congress shall have power "to
regulate commerce with foreign nations, and among the several
states, and with the Indian tribes." This objection having been
overruled, there was a judgment for the plaintiff, which the
supreme court on appeal affirmed, holding that the act was "not
contrary in any wise, in regard to this case, to the Constitution
of the United States."
The company then brought the case here.
Page 95 U. S. 468
MR. JUSTICE STRONG delivered the opinion of the Court.
Five assignments of error appear in this record, but they raise
only a single question. It is whether the statute of Missouri upon
which the action in the state court was founded is in conflict with
the clause of the Constitution of the United States that ordains
"Congress shall have power to regulate commerce with foreign
nations, and among the several states, and with the Indian tribes."
The statute, approved Jan. 23, 1872, by its first section, enacted
as follows:
"No Texas, Mexican, or Indian cattle shall be driven or
otherwise conveyed into or remain in any county in this state
between the first day of March and the first day of November in
each year by any person or persons whatsoever."
A later section is in these words:
"If any person or persons shall bring into
Page 95 U. S. 469
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."
Other sections make such bringing of cattle into the state a
criminal offense and provide penalties for it. It was, however,
upon the provisions we have quoted that this action was brought
against the railroad company that had conveyed the cattle into the
county. It is noticeable that the statute interposes a direct
prohibition against the introduction into the state of all Texas,
Mexican, or Indian cattle during eight months of each year, without
any distinction between such as may be diseased and such as are
not. It is true a proviso to the first section enacts that
"When such cattle shall come across the line of the state,
loaded upon a railroad car or steamboat, and shall pass through the
state without being unloaded, such shall not be construed as
prohibited by the 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 of
transportation, and the existence of such disease along the line of
such route shall be
prima facie evidence that such disease
has been communicated by such transportation."
This proviso imposes burdens and liabilities for transportation
through the state, though the cattle be not unloaded, while the
body of the section absolutely prohibits the introduction of any
such cattle into the state, with the single exception
mentioned.
It seems hardly necessary to argue at length that unless the
statute can be justified as a legitimate exercise of the police
power of the state, it is a usurpation of the power vested
exclusively in Congress. It is a plain regulation of interstate
commerce, a regulation extending to prohibition. Whatever may be
the power of a state over commerce that is completely internal, it
can no more prohibit or regulate that which is interstate than it
can that which is with foreign nations. Power over one is given by
the Constitution of the United States to Congress in the same words
in which it is given over the other, and in both cases it is
necessarily exclusive. That the transportation of property from one
state to another is a
Page 95 U. S. 470
branch of interstate commerce is undeniable, and no attempt has
been made in this case to deny it.
The Missouri statute is a plain interference with such
transportation, an attempted exercise over it of the highest
possible power -- that of destruction. It meets at the borders of
the state a large and common subject of commerce, and prohibits its
crossing the state line during two-thirds of each year, with a
proviso, however, that such cattle may come across the line loaded
upon a railroad car or steamboat, and pass through the state
without being unloaded. But even the right of steamboat owners and
railroad companies to transport such property through the state is
loaded by the law with onerous liabilities because of their agency
in the transportation. The object and effect of the statute are
therefore to obstruct interstate commerce and to discriminate
between the property of citizens of one state and that of citizens
of other states. This Court has heretofore said that interstate
transportation of passengers is beyond the reach of a state
legislature. And if, as we have held, state taxation of persons
passing from one state to another, or a state tax upon interstate
transportation of passengers, is prohibited by the Constitution
because a burden upon it,
a fortiori, if possible, is a
state tax upon the carriage of merchandise from state to state.
Transportation is essential to commerce, or rather it is commerce
itself, and every obstacle to it, or burden laid upon it by
legislative authority is regulation.
Case of
the State Freight Tax, 15 Wall. 232;
Ward v.
Maryland, 12 Wall. 418;
Welton v. State of
Missouri, 91 U. S. 275;
Henderson v. Mayor of New York, 92 U. S.
259;
Chy Lung v. Freeman, 92 U. S.
275. The two latter of these cases refer to obstructions
against the admission of persons into a state, but the principles
asserted are equally applicable to all subjects of commerce.
We are thus brought to the question whether the Missouri statute
is a lawful exercise of the police power of the state. We admit
that the deposit in Congress of the power to regulate foreign
commerce and commerce among the states was not a surrender of that
which may properly be denominated police power. What that power is
it is difficult to define with sharp precision. It is generally
said to extend to making regulations
Page 95 U. S. 471
promotive of domestic order, morals, health, and safety. As was
said in
Thorp v. Rutland & Burlington Railroad Co., 27
Vt. 149,
"it extends to the protection of the lives, limbs, health,
comfort, and quiet of all persons, and the protection of all
property within the state. According to the maxim
sic utere tuo
ut alienum non laedas, which, being of universal application,
it must, of course, be within the range of legislative action to
define the mode and manner in which every one may so use his own as
not to injure others."
It was further 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."
It may also be admitted that the police powers of a state
justify the adoption of precautionary measures against social
evils. Under it, a state may legislate to prevent the spread of
crime or pauperism or disturbance of the peace. It may exclude from
its limits convicts, paupers, idiots, and lunatics, and persons
likely to become a public charge, as well as persons afflicted by
contagious or infectious diseases, a right founded, as intimated in
The Passenger
Cases, 7 How. 283, by Mr. Justice Greer, in the
sacred law of self-defense.
Vide 3 Sawyer 283. The same
principle, it may also be conceded, would justify the exclusion of
property dangerous to the property of citizens of the state -- for
example, animals having contagious or infectious diseases. All
these exertions of power are in immediate connection with the
protection of persons and property against noxious acts of other
persons, or such a use of property as is injurious to the property
of others. They are self-defensive.
But whatever may be the nature and reach of the police power of
a state, it cannot be exercised over a subject confided exclusively
to Congress by the federal Constitution. It cannot invade the
domain of the national government. It was said in
Henderson v.
Mayor of the City of New York, supra, to
"be clear from the nature of our complex form of government that
whenever the statute of a state invades the domain of legislation
which belongs exclusively to the Congress of the
Page 95 U. S. 472
United States, it is void, no matter under what class of powers
it may fall or how closely allied it may be to powers conceded to
belong to the states."
Substantially the same thing was said by Chief Justice Marshall
in
Gibbons v.
Ogden, 9 Wheat. 1. Neither the unlimited powers of
a state to tax nor any of its large police powers can be exercised
to such an extent as to work a practical assumption of the powers
properly conferred upon Congress by the Constitution. Many acts of
a state may indeed affect commerce without amounting to a
regulation of it in the constitutional sense of the term. And it is
sometimes difficult to define the distinction between that which
merely affects or influences and that which regulates or furnishes
a rule for conduct. There is no such difficulty in the present
case. While we unhesitatingly admit that a state may pass sanitary
laws and laws for the protection of life, liberty, health, or
property within its borders; while it may prevent persons and
animals suffering under contagious or infectious diseases, or
convicts, &c., from entering the state; while for the purpose
of self-protection it may establish quarantine, and reasonable
inspection laws, it may not interfere with transportation into or
through the state beyond what is absolutely necessary for its
self-protection. It may not, under the cover of exerting its police
powers, substantially prohibit or burden either foreign or
interstate commerce. Upon this subject the cases in 92 U.S. to
which we have referred are very instructive. In
Henderson v.
Mayor,, the statute of New York was defended as a police
regulation to protect the state against the influx of foreign
paupers, but it was held to be unconstitutional because its
practical result was to impose a burden upon all passengers from
foreign countries. And it was laid down that "in whatever language
a statute may be framed, its purpose must be determined by its
natural and reasonable effect." The reach of the statute was far
beyond its professed object and far into the realm which is within
the exclusive jurisdiction of Congress. So in the case of
Chy
Lung v. Freeman, where the pretense was the exclusion of lewd
women; but as the statute was more far-reaching, and affected other
immigrants, not of any class which the state could lawfully
exclude, we held it unconstitutional.
Page 95 U. S. 473
Neither of these cases denied the right of a state to protect
herself against paupers, convicted criminals, or lewd women, by
necessary and proper laws in the absence of legislation by
Congress, but it was ruled that the right could only arise from
vital necessity, and that it could not be carried beyond the scope
of that necessity. These cases, it is true, speak only of laws
affecting the entrance of persons into a state, but the
constitutional doctrines they maintain are equally applicable to
interstate transportation of property. They deny validity to any
state legislation professing to be an exercise of police power for
protection against evils from abroad which is beyond the necessity
for its exercise wherever it interferes with the rights and powers
of the federal government.
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 1 and Dec. 1 in any
year, no matter whether they are free from disease or not, no
matter whether 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.
In coming to such a conclusion, we have not overlooked the
decisions of very respectable courts in Illinois, where statutes
similar to the one we have before us have been sustained.
Yeazel v. Alexander, 58 Ill. 254. Regarding the statutes
as mere police regulations, intended to protect domestic cattle
against infectious disease, those courts have refused to inquire
whether the prohibition did not extend beyond the danger to be
apprehended, and whether, therefore, the statutes were not
something more than exertions of police power. That inquiry, they
have said, was for the legislature, and not for the courts. With
this we cannot concur. The police power of a state cannot obstruct
foreign commerce or interstate commerce
Page 95 U. S. 474
beyond the necessity for its exercise, and under color of it
objects not within its scope cannot be secured at the expense of
the protection afforded by the federal Constitution. And as its
range sometimes comes very near to the field committed by the
Constitution to Congress, it is the duty of the courts to guard
vigilantly against any needless intrusion.
Judgment reversed and the record remanded with instructions
to reverse the judgment of the Circuit Court of Grundy County and
to direct that court to award a new trial.