# Defendants Brief — Rasmussen v. Idaho

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Defendants Brief
- **Published:** January 1, 1901
- **Citation:** 181 U.S. 198

## Text

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UNI
| THE STATE OF IDAHO.
in Error to’ the

F IN THE
¥

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_0667%3A3. Public record. Not legal advice.