Defendants Brief — Rasmussen v. Idaho

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| THE STATE OF IDAHO.

in Error to’ the

F IN THE

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SUPREME COURT

OF THE

UNITED STATES.

OCTOBER TERM, 1900.

No. 215. (17,658).

R. RASMUSSEN, ;

Plaintiff in Error. |

vs

THE STATE OF IDAHO. \

In Error to the Supreme Court of the State

of Idaho.

BRIEF FOR DEFENDANT IN ERROR.

SAMUEL H. HAYS,

FRANK MARTIN,

Attorney General of Idaho,

For Defendant in Error.

~ STATEMENT.

The plaintiff in error was charged with a violation

of the sheep quarantine law and regulations of the

State of Idaho.

— 2 a=

A trial was had before the District Court for Oneida

County and the defendant was on June 14th, 1899,

found guilty as charged in the information. An ap-

peal was taken to the State Supreme Court and the

judgment was there affirmed. (59 Pac. Rep. 933).

The case now comes to this Court on writ of error, it

being contended that the law in question violates Sec-

tion 8 Article 1 and Section 2 Article 4 of the Constitu-

tion of the United States.

The Act of March 13th, 1899; Session Laws 1899

page 452. is as follows:

“Section 1. Whenever the Governor of the

State of Idaho has reasons to believe that scab or

any other infectious disease of sheep has become

epidemic in certain localities in any other State or

Territory. or that conditions exist that render

sheep likely to convey disease, he must thereupon

by proclamation, designate such localities and pro-

hibit the importation from them of any sheep into

the State, except under such restrictions as, after

consultation with the State Sheep Inspector, he

may deem proper.

Any person or corporation who, after publica-

tion of such proclamation, receives in charge atiy

such sheep from any of the prohibited districts

and transports, conveys or drives the same to and

within the limits of any of the counties of this

State, is punishable by a fine not exceeding $1000

nor less than $200, and is liable for all damages

that may be sustained by any person by reason

eae) |

. f the importation or transportation of such pro-

liibited sheep.

Section 2. Upon issuing such proclamation the

owners or persons in charge of any sheep being

shipped into Idaho, against which quarantine has

been declared, must forthwith notify the Deputy

Inspector of the county into which such sheep

first come, of such arrival, and such owner or per-

sons in charge must not allow any sheep so quar-

antined to pass over or upon any public highway,

or upon the ranges occupied by other sheep or

within five miles of any corral in which sheep are

usually corralled until such sheep have first been

inspected, and any person failing to comply with

the provisions of this section is punishable as pro-

vided in Section one of this Act, and is liable for

all damages sustained by any person by reason of

the failure to comply with the provisions of this

section.

Section 3. Whereas an emergency exists, this

Act shall be in force and effect from and after its

passage.”

Under and by virtue of Section one of this Act the

Governor of Idaho, issued his proclamation, which is

aus follows:

“Whereas I have received statements from relia-

ble wool-growers and stock-raisers of the State of

Idaho, said statements being supplemented by

affidavits of reputable persons, all to the effect

that the disease know as scab or scabbies is epi-

— 4 —

demic among sheep in certain localities or dis-

tricts, viz: In the County of Cache, State of

Utah; the County of Box Elder, in the State of

Utah; and the County of Elko, in the State of

Nevada; and

Whereas, it is known that sheep from said dis-

tricts are annually moved, driven or imported

into the State of Idaho, and if so moved would

thereby spread infection and disease on the ranges

and among the sheep of this State, which act

would result in great disaster.

Now, therefore, I, Frank Steunenberg, Gov-

ernor of the State of Idaho, by virtue of authority

in me vested, and after due consultation with the

State Sheep Inspector, do hereby prohibit the im-

portation, driving or moving into the State of

Idaho of all sheep now being held, herded or rang-

ed within said infected districts, viz: The County

of Cache, in the State of Utah: the County or Box

elder, in the State of Utah, and the County of

Elko, in the State of Nevada, or which may here-

after be held, herded or ranged within said infected

districts, for a period of sixty days from and after

the date of this proclamation; after the termina-

tion of said sixty days sheep can be moved into

this State only upon compliance with the laws of

the State of Idaho regarding the inspection and

dipping of sheep.”

This proclamation was issued on the 12th day of

April, 1899. The offense was committed on or about

the 20th day of April, 1&90.

_ —

—s5—

Plaintiff in error contends that the law above quoted

taken in connection with the proclamation is an inter-

ference with interstate commerce and therefore void.

It appears from the record that plaintiff in error was

in charge of six herds of sheep aggregating about

fifteen thousand head in Box Elder County, Utah, on

April 12th, 1899. (Trans. pg. 9). At the trial he was

asked : “Did your sheep have scabbies or scab ?” Trans-

pg. 10). Which question was objected to and the ob-

jection sustained. Plaintiff in error then offered to

show that none of the sheep in question had the scab

or scabbies and also that they did not have any indica-

tions or hint of having any disease whatever at the

time of coming into the State. This offer of proof was

rejected. Although there are a number of assignments

of error the question at issue was chiefly raised in the

manner above mentioned.

ARGUMENT.

In the State Court in addition to the Federal ques-

tion it was urged:

'. That the act delegates legislative power to the

Governor.

2. That the proclamation is insufficient and was not

in force until April 13th.

4 or r

4. That the proclamation was not proved.

5. That the venue was not properly laid.

= |

lhese points are not now open for discussion in this

Court since they raise no Federal question. As to the

proper construction of the State Statute and what is

a

ome ee

to be regarded as among its terms, no Federal question

can arise.

Morley vs. Lake Shore & M. S. R. Co., 146, U. S.

162.

The objection of plaintiff in error does not go so

much to the statute as to the manner in shich the Gov-

ernor administered it.

This Court held in New Orleans Waterworks Co. vs.

Louisiana Sugar Refining C&%, 125 U. S. 18, quoting

from another decision that: “Any enactment from

whatever source originating, to which a State gives the

force of law, is a statute of the State within the mean-

ing of the clause cited relating to the jurisdiction of

this Court.” In that case it was further held that the

provision of the Constitution there in question was

aimed at the legislative power of the State and not at

the decisions of its Courts or the acts of administrative

or executive boards or officers. See also:

Lent vs. Tillson, 140 U. 5S., 316.

Louisiana vs. Texas, 176 U. S., 1.

lf however this Court has jurisdiction, the question

then to be considered is whether or not the statute taken

in connection with the proclamation is an attempted

regulation of interstate commerce or whether it is a

quarantine law, as held by the State Court.

Quarantine laws in various ferms for preventing the

spread of disease among animals are of ancient origin

but it is only within the last forty years that the matter

has received particular attention. The first Act of Con-

fof © Fh

—_ - —

gress on the subject seems to have been passed in 1865

and amended in 1866. (Sec. 2493-5 R. S. United

States.). No further legislation was had until 1884,

when the Bureau of Animal Industry was established

This was followed by the Act of August 3oth, 1890,

the Acts of March 3rd, 1891, and the Act of March

2nd, 1895.

In the State of Idaho the first statute relating to the

subject was passed in 1889. ‘This was repealed in 1&91

and in 1895 a new act was passed which was amended

in 1897. The amended act was found unconstitutional

in part and was followed by the act here in question

passed in 1899.

The stock interests particularly in the west are so

important and the ravages of disease so great that the

growth of the law in late years has been rapid.

In answering the plaintiff in error we contend :

1. That a State may pass a reasonable quarantine

law for the protection of domestic animals.

2. That under such a law a quarantine may, if nec-

essary, be declared against a locality where an epidemic

exists,

3. That the statute and proclamation provide a rea-

sonable quarantine regulation.

We will first consider the question :

I.

Can the State pass this kind of a quarantine law?

By the Constitution the power “to regulate com-

merce among the severai states” is given to Congress.

This may be taken as a grant of general power and

‘uecessary incidental powers.

a

The legislation of Congress pertinent to the present

inquiry is Sections 3, 6 and 7 of the Act of May 29th,

issy (23A4fat at forge 31)

Those sections are as follows:

“Section 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 regu-

lations to the executive authority of each State and

Territory and invite said authorities to co-operate

in the execution and enforcement of this act.

Whenever the plans and methods of the Commis-

sioner of Agriculture shall be accepted by any

State or ‘Territory in which pleuro-pneumonia or

other contagious, infectious or communicable

disease is declared to exist or such State or Terri-

tory 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 co-operate

for the extinction of any contagious, infectious

or communicable disease in conformity with the

provisions of this ct, the Commissioner of Agri-

culture is hereby authorized to expend so much of

the money appropriated by this Act, as may be

necessary in such investigations and in such dlis-

‘nfection and quarantine measures as may be nec-

————

— gQ—

essary to prevent the spread of the disease from

one State or Territory into another.

Section 6. That no railroad company within

the United States, or the owners or masters of any

steam or sailing or cther vessel or boat shall re-

ceive 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 live stock affected with any

contagious, infectious or communicable disease

and especially the disease known as pleuro-pneu-

monia ; nor shall any person, company or corpora-

tion deliver for such transportation to any rail-

road company, or master or owner of any boat or

vessel, any live stock knowing them to be affected

With any contagious, infectious or communicable

<lisease ; nor shall any person, company or corpo-

ration drive on foot or transport in private con-

veyance from one State or Territory to another, or

from any State into the District of Columbia, or

from the District into any State any ive stock.

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 spleuetic or Texas fever shall

not be considered a contagious, infectious or com-

municable 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.

== 10.-——

Section 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 per-

son 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 live stock within such infected dis-

trict, who shall knowingly violate the provisions

of Section six of {iis Act, shall be guilty of a mis-

demeanor, and upon conviction shall be punished

by a fine of not less than one hundred dollars nor

more than five thousand dollars, or by imprison-

ment for not more than one year or by both such

fine and imprisonment.”

Whether or not the rules and regulatios. which

seem to have been promulgated by the Department in

1887, were ever certified to the authorities of the State

of Idaho, or not, i$ not shown by the record and we

have been unable to learn. In any event, although the

record is silent on the subject, there has been no ac-

ceptance of the regulations by the State and no co-

operation between the State and National Govern-

ments. In fact, there is and has been no law of the

State whereby the rules of the Department could be

adopted or joint action taken. Is the State then, bar-

red from enacting the statute in question. We insist

aot. The Act did not purport to take from the State

—tII—

the power claimed, but on the contrary under the terms

of Section three, there was a direct acknowledgement

of it. The Act sought to secure co-operation. There

having been no acceptance by the State of the rules and

regulations of the Department the remaining question

is whether or not the enactment by Congress of Sec-

tions six and seven is a bar to the State law. These

sections in substance provided that it should be a mis-

demeanor to drive stock from one state to another

knowing them to be affected with disease. These ¢ec-

tions are in no sense a quarantine measure framed for

the purpose of preventing the spread of disease.

We think the question is settled by the decision of

this Court in the case of Missouri, K. & T. R. Co.. vs.

Haber, 169 U. S., 613, where the act of C mgress men-

tioned and a somewhat similar State statute were un-

der consideration. It was there said:

“May not these statutory provision (the State

statute) stand without obstructing or embarassing

the execution of the act of Congress ?

This question, must, of course, be determined

with reference to the settled rule that a statute en-

acted 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 repug-

nance or conflict is so direct and positive that the

‘wo acts cannot be reconciled or stand together.

Sinnot vs. Davenport, 22 How. 227.

We have seen that the first section of the Ani-

tl Industry Act provided for an investigation as

— I2—

to the condition of the domestic animals of the

United States, their protection and use, the causes

of contagious, infectious and communicable dis-

eases among them, and the means for the preven-

tion and cure of such diseases. The second sec-

tion provided for an examination as to the best

methods of treating, transporting and caring for

animals and the means to be adopted for the sup-

pression and extirpation of contagious pleuro-

pneumonia and to guard against the spreading of

ther dangerous. contagious, infectious and com-

municable diseases. If any state was ready to co-

operate with the Commissioner of Agriculture

then, by the third section that officer was author-

‘ved 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 to another.” While the states were

invited to co-operate with the general govern-

ment 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.”

This principle was recognized in the case of Railroad

Co. vs. Huson, 95 U. S. 465, so much relied in by plain-

tiff in error, where it was read :

“It may also be admitted that the police powers

of the 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 disturbances of the peace. It may ex-

clude 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 Grier. J..

in the sacred law of self-defense. The same prin-

ciple it may also be conceded would justify the ex-

clusion of property dangerous to the property of

citizens of the State; for example animals having

contagious or infectious diseases.”

Likewise in Patterson vs. Kentucky, 97 U. S. 501,

the Court says:

“We have frequently decided that the police

power of the States was not surrendered when the

people of the United States conferred upon Con-

gress the general power to regulate commerce with

foreign nations and between the several States.

Hence, the States may by police regulations protect

their people against the introduction within their

respective limits of infected merchandise. ‘A bale

of goods upon which the duties have, or have not,

been paid, laden with infection, may be seized un-

der health laws, and if it cannot be purged of its

poison, may be committed to the flames.” (Gilman

vs. Philadelphia, 3 Wall. 713.) So may the States

by like regulations exclude from their midst not

only convicts, paupers, idiots, lunatics and per-

sons likely to become a public charge but animals

having contagious diseases.”

oo

steals

And in Railroad Co. vs. Kentucky, 161 U.S. AR in

quoting from another case, it was said :

“In conferring upon Congress the regulation of

commerce it was never intended to cut the States

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.”

Animals which are infected with or which are from

the circumstances o1 their situation likely to convey

disease are not merchantable or marketable and are not

a proper subject of commerce.

As was said in Gilman vs. Phalidelphia 3 Wall. 713:

“A bale of goods, upon which the duties

have or have not been paid, laden with infection

may be seized under health laws, and if it cannot

be purged of its poison, may be committed to the

flames.”

In the License Cases (5 How. 576), it was said :

“But it must be remembered that disease, pesti-

lence and pauperism are not subjects of commerce,

although sometimes among its attendant evils.

They are not things to be regulated and trafficked

in, but to be prevented as far as human foresight

or human means can guard against them.”

Likewise in Gibbons vs. Ogden, 9 Wheat. 303, where

it was said by Justice Johnson :

“It is no objection to the existence of distinct

substantive powers that in their application they

bear upon the same subject. The same bale of

goods, the same cask of provisions oF the same

— is —

ship that may be the subject of commercial regula-

tion 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 of

commerce than the laws which permit their im-

portation are intended to innoculate the commun-

ity with disease.”

We submit that where the State has not accepted the

provisions of Section three of the Animal Industry

Act that it still has the power to enact and enforce a

reasonable quarantine law.

If.

May a quarantine be declared against all animals

trom a locality where a disease is epidemic?

Quarantine laws are intended to prevent the spread

of disease and it follows from the nature of contagious

diseases that not only must animals bearing the visible

marks of disease be barred but that animals coming

front a locality where a disease is epidemic and which

are therefore likely to carry disease may be quarantined.

Heaith officers are justified in taking the greatest care

ior the prevention of disease.

Seavey vs. Preble, 64 Me. 120.

A civilized community should be satisfie¢ wich noth

ing less.

All quarantine laws worthy of the name provide

for the execlusion of persons, merchandise or animals

coming from infected districts.

—_ {6 <—

Sup. U. S. Rev. Stat. (2nd Ed.) pg. 796-7, See.

6 and 9.

Political Code Montana, Secs. 3008 and 3035.

Laws of Wyoming 1899, Sec. 2081-2.

Political Code California, Sec. 3017.

Rev. Stat. Utah. (1898) Sec. 1110.

27 U. S. Stat, at Large, pg. 452, Sec. 7.

Compiled Laws of Nevada (1900) Sec. 825.

Revised Codes N. Dakota (1899) Sec. 1600

Z Civil Code Alabama (1896) Sec. 2403.

'

‘

See also:

Parker & Worthington on Public Health and

| Safety Sec. 28.

Statutory provisions of this kind have been upheld

by the Courts. See:

Hurst vs. Warner, 60 N. W. 440.

Minneapolis St. P. & S. S. Ry. vs. Milner 57 ied.

270.

2 St. Louis & S. W. Ry. vs. Smith, 49 5. W. 627.

: Compagnie Francaise de Nav. vs. State Board. 25

: So. 591.

: Young vs. Flower, 22 N. Y. Sup. 332.

‘The disinfection of an entire class of goods may be

; required whether actually infected or not.

i ‘Train vs. Boston Disinfect. Co. 144 Mass. 523.

3 Compulsory vaccination has been required.

:

é Morris vs. City of Columbus, 30 5. E. 850.

E Duffield vs. School District, 162 Pa. St. 476

i Abeel vs. Clark, 84 Cal. 226.

sce also:

Blue vs. Beach, 56 N. E. 80.

This quarantine is nothing more than a quarantine

against an infected district, which is clearly justifiable.

The offer of proof by plaintiff in error (Trans. pgs. 10

and 11) was as follows: “I offer to show that none

of the sheep that he drove into Cassia C vunty had the

scab or scabbies, that not one of the sheep that he drove

into Oneida County had the scab or scabbies. or any

other disease.

%* ok ws be ne ne *

I will add that they did not have any indications or

hint of laving any disease whatever, at the time they

came into Cassia County or Oneida County.”

This offer was certainly as broad as the circum-

stances would permit considering the fact that there

were fifteen thousand sheep (Trans. pg. Q); that they

had just been in a district where the disease was pre-

valent and the further fact that the disease is caused by

a mite or parasite which is for practical purposes mi-

croscopic and hides itself where the wool is most abun-

dant. (See, Bulletin 21 on Sheep Scab, page 10; is-

sued by Bureau of Animal Industry.) Also from the

further fact that the “tags” of wool which are the first

visible signs of the disease may not appear until several

weeks after inoculation. Even taking the offer as true

the sheep may have been carrying contagion and still

have given no hint or indication of having the disease.

It is this particular danger that a quarantine of this

kind is aimed at.

The Idaho law made it the duty of the Governor to

issue his proclamation whenever he found conditions

— {5—-

existing that required it, and it was never intended that

the question of the necessity for the proclamation

should be submitted to a jury in each case of a pros-

ecution under it. Further than that in this case there

was no offer to prove that scab was not epidemic in the

districts named or that no necessity existed for issuing

the proclamation. Perhaps such proof would not be

admissible, but in any event the result is the same, the

existence of the disease and the necessity of a procla-

mation are admitted by the record. The State can not

be called on as a preliminary to a prosecution of this

kind to show the good faith of its executive. It is his

duty to uphold the Constitution and laws of the United

States as well as those of the State. A liberal construc-

tion should be given to the acts of health officers.

Hengehold vs. Covington, 57 S. W. 495.

This brings us to what we believe to he the

tant question in the case.

Ill.

Was the exclusion of all sheep coming from the in-

fected district, for the period of sixty days a reasonable

quarantine regulation?’

In City of St. Louis vs. Boffinger, 19 Mo. 13. the

Court said:

“If the real resign of the ordinance is a quaran-

tine regulation to guard against the introduction

of disease into the city, we will not undertake to

determine whether some other measure interfer-

ing less with commerce could not as well have ac-

complished the object.”

— ig

Whether a regulation of this kind is reasonable or

not must depend largely on the nature of the disease

to be prevented. In the Bulletin on Sheep Scab, issued

by the Bureau of Animal Industry (No. 21 page 8) it

is said:

“The losses from sheep scab have been and are

still very severe in most sheep-raising countries.

They are due to the shedding of the wool, the loss

of condition and the death of the sheep.

Although laws were made for the control of the

(lisease as early as the beginning of the eleventh

century, general ignorance in regard to its nature

and proper treatment has prevented the successful

administration of such laws even to the present

day. The disease exists in most of the countries

ot Europe and also in Asia and Africa, and until

recently in Australia. Most civilized countries

now control the disease to a certain extent, and

limit the losses by the enforcement of stringent

sanitary regulations; but the extent of its preval-

ence is nevertheless surprising. It is a disease not

difficult to cure and eradicate and an accurate

knowledge of its characterictics with attention to

Getails are all that are needed to secure this result.

In the United States some sections have been

overrun with sheep scab and many persons engag-

ed in the sheep industry have been forced to for-

sake it because of their losses from this disease.

It is probable that in its destruction of invested

capital sheep scab is second only to hog cholera

umong our animal diseases. The large flocks of

— 20 —

the plains and Rocky Mountain region and the

feeding stations farther east have suffered severely

and are constantly sending diseased sheep to the

great stock yards of this country.

In addition to the direct losses in wool, in flesh

and in the lives of our sheep we have suffered im-

mensely in our foreign trade because of the preval-

ence of this disease. Great Britain appears to

have been the first country to prohibit live sheep

coming from the United States by an order issued

in 1879. Upon representations that there was no

foot and mouth disease in the United States this

order was rescinded in 1892, but only to be again

enforced in 1896 on account of the many scabby

sheep sent abr vad by our exporters. Our sheep

are consequently slaughtered on the docks where

landed, the market being restricted and the prices

much less favorable than would otherwise be ob-

tained. The markets of continental Europe have

been entirely closed to American sheep, as even the

privilege of slaughtering at the landing places 1s

denied.” (Page 8 Bulletin 21.)

The increase in the number of the sheep and the con-

sequent crowding of the ranges have made conditions

worse than in 1898, when the Bulletin was issued.

‘The sheep here in question came from Utah into

Idaho. Utah has been behind all other sheep raising

\Vestern states in the enactment of appropriate and ef-

fective sheep quarantine laws. but even in that state the

diseased condition of its sheep has been recognized.

Section 63 Rev. Stat. Utah (1898) is as follows:

PRE ALE Ne OA

? eee phe, -

FRG: BE LO AER LIGE IS OLLI LIN APS IO RENE ST: ROR

. OF IEEE

“Every person owning, controlling or ranging

sheep in the State shall have all such sheep thor-

oughly dipped at least once a year in some prepa-

ration that will kill seab or shall be deemed guilty

of a misdemeanor and upon conviction thereof

may be fined in any sum not exceeding one hun-

dred dollars for each offense.”

No doubt plaintiff in error would insist there as he

does here that his sheep were healthy and no dipping

Was necessary. It may be possible also that it would

be cheaper to pay a small fine than to dip these fifteen

thousand sheep.

Referring again to Bulletin 21 we find it stated at

puiges 13 and 14:

“All matters connected with the vitality of the

scab mite have an important bearing in explain-

ing cases of indirect infection on roads over which

scabby sheep have been driven, or in fields and

sheds where they have been kept. Froni the facts

now at our disposal we can lay down the follow-

ing important rules:

Scabby sheep should never be driven upon a

public road ; sheds in which scabby sheep have been

kept should be thoroughly cleaned, disinfected and

aired, and should be left unused for af least four

weeks (better two months) before clean sheep are

placed in them; fields in which scabby sheep have

been kept should stand vacant at least four weeks

(better six or eight) before being used for clean

sheep; a drenching rain will frequently serve te

disinfect a pasture but it is well 10 whitewash the

—

posts against which scabby sheep have rubbed

Even after observing the precautions here given

it is not possible to absolutely guarantee that there

will be no reinfection, but the probabilities are

against it.”

After treating of the life of the parasite the Bulletin

further says ( page 14):

“Several practical lessons are to be drawn from

these figures: first, it is seen that the parasites in-

crease very rapidly, so that if scab is discovered in

a flock, the diseased sheep should be immediately

isolated: second, if new sheep are placed in a

flock, they should either first be dipped, as a pre-

cautionary measure or they should at least be

kept separate for several weeks to see whether

scab developes: third, since the chances of infec-

tion are very great the entire flock should be treat-

ed even in case scab is found only in one or two

animals: fourth, as dipping is not certain to kill

the eggs. the sheep should be dipped a second time,

the time being selected between the moment of

hatching of eggs and the moment the next genera-

tion of eggs is laid.”

As the sheep must necessarily be infected with mites

in all stages of development even a second dipping will

not entirely free the flock from disease, in fact, there is

hardly any disease of domestic animals that requires

more continuous and careful attention.

For a complete discussion of the nature of the dlis-

ease we refer to the Bulletin. We also refer to the

Rules and Regulations of the Bureau of Animal In-

lead ovr

—23—

dustry. By rule 4 (page 33 Bulletin No. g) a ninety-

lay quarantine is established for all diseased animals

or those which have been exposed to disease.

Plaintiff in error Says in his brief:

“AM sheep in all parts of the « untry are liable

to scabbies ; it is a prevalent disease or rather than

a disease, a difficulty in raising sheep. ‘There are

healthy sheep yet it seems as if the scab was almost

a necessary incident to their handling. It has nev

er been eradicated and never can he.” ( Brief

pg. 6.)

We think that this speaks eloquently for the neces-

sity of a quarantine and is a justification for the rigid

statutes on the subject enacted in the great wool-

growing states within the last five years. That the

(lisease can never be cured if a mistake since it has

been eradicated from Australia. ( Pages 21 and 23

Bulletin. )

It is argued that the quarantine is unreasonable and

bad faith may be imputed from the fact that the pro-

clamation covered two months in the spring and from

the further fact that it did not provide for an inspec-

tion and for a cure of sheep found diseased.

In reply we say that sheep are not usually moved

from place to place in the winter time and owing te

climatic conditions they are not dipped during that sea-

son. Owners do not desire to dip ewes until after the

birth of the lambs. ( Bulletin hg. 19). Spring is there-

for a period of great danger. The period of sixty

days is fixed in the proclamation so that the diseas¢

may have time to shoay itself and make it possible to de

a

tect it. and particularly so that the time for shearing

may be passed when the disease will certainly be dis

covered by the owner and may be more readily ob

served by the Inspector. In this connection it should he

noticed that the entire period covered by this proclama-

tion is sixty days and sheep are not required to watt

sixty days at the State line before entering the State

Shearing time in the locality mentioned comes in May

and June. As to an inspection and prescribing rem-

edies we do not think we are bound to prescribe a cure

for Utah sheep, but in any event it was provided by

eT ee

the proclamation that after a reasonable time had

elapsed sufficient for the disease to show itself and the

sheep had been sheared, that then “sheep can be moved

into this State only upon compliance with the laws of

the State of Idaho regarding the inspection and dipping

PR Re eet ae

of sheep.”

\s to the State laws referred to, see Laws of 1899

page 352.

It seems to be urged that the statute delegated legis-

lative authority to the Governor. On this point we cit-

ein the State Court:

Field vs. Clark. 143 U. S. 649.

Hurst vs. Warner, 60 N. W. 440.

Sang Lung vs. Jackson, 85 Fed. 502.

Los Angeles Co. vs. Spencer. 59 Pac. 202.

Martin vs. Witherspoon, 135 Mass. 175.

el a SaaS UAADT A Ra RAD SOT ESN APE TG St bOI

United States vs. Ormsbee, 74 Fed. 207.

2

That question, however, is not 4 Federal question

and is not before this Court.

—_— —2

The courts of Idaho have ever been vigilant in up

fst

holding the Constitutional provision relative to inter-

state commerce. They held to a more stringent rule in

Territory vs. Evans, 2 Idaho 634, than this Court did

in Geer vs. Connecticut. 161 U.S. 319, where the

Idaho case is cited. In State vs. Duckworth, 51 Pace.

456, the Court promptly declared void a statute so

loosely and carelessly drawn as to interfere with com

merce between the states.

We do not dispute the principles of jaw laid down

in Railway Co, vs. Husen. It should be noted. how

ever, that after the establishment of the Bureau of \ni-

mal Industry and after the disease of Texas fever

came to be better understood the Department of Agri-

culture prescribed even a longer period of quarantine

than the Kansas Statute. (Regulations Bureau of

\nimal Industry page 26.) The Husen case must be

considered also in light of Kimmish vs. Ball. 129 U.

S. 217, and Railway Co. vs. Haber. 169 U.S. 613.

In conclusion we say, that the State had the power

to pass the law and authorize the quarantine, and that

the quarantine directed as it was against an infected

district for a period of sixty days was reasonable and

therefore the judgment should be affirmed.

Respectfully submitted,

SAMUEL TL TLAYS.

PRANK MARTIN,

Attorney General of Idahe.

For Defendant in Error.

NOTE.

In relation to sheep scab, we refer in addition to

the Bulletin to the foilowing :

Report Chief of Bureau of Animal Industry,

1899, pg. 247.

Same report for 1900, pg. 216. |

Administrative Work of the Federal Govern-

ment in relation to the Animal Industry,

(18§9), pg. 452.