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affirmative allegations of which were con- cattle were infected, and, if so, whether the troverted.
plaintiff's cattle contracted the disease from This amended petition sets forth:
them while they were in the pens of the de“The plaintiff, J. U. McKendree, comes, fendant company at Arlington. and by leave of the court amends his peti- The presiding judge of the Carlisle cir. tion, and says that the defendant, Illinois cuit court filed the following certificate: Central Railroad Company, on the 13th day “I, R. J. Bugg, sole presiding judge of the of June, 1903, received one car of cattle at circuit court of Carlisle county, in the state Grand Junction, Tennessee, to be transport of Kentucky, now and at the time of the ed to the town of Arlington, Kentucky, and trial of the above entitled cause, do hereby on the 13th day of said month unloaded certify: them in the stock pens in said town. "That, upon the trial of said cause, the
“That the town of Arlington is a small defendant, Illinois Central Railroad Comtown, located on defendant's road in this, pany, relied for its defense upon certain Carlisle county, and defendant's stock pens rights, privileges, and immunities specially are located adjacent to the public highway claimed by it under the Constitution of the and commons, and that Grand Junction, United States of America, and it insisted Tennessee, is located on defendant's road upon its said rights, privileges, and immuniand south of the quarantine line that was ties throughout the trial of said action, and established on the 14th day of March, 1903, in the assertion of them it claimed and conby and under the existing quarantine laws, tended that the various regulations and orand that said quarantine line, beginning ders made and promulgated by the Secreon the Mississippi river, at the southeast tary of Agriculture, and offered in evidence corner of the state of Missouri, at the west-on behalf of the plaintiff herein over the ern boundary of Tennessee.' [Here follows objections of defendant, were unconstitua description of the quarantine line through tional, null, and void, as being in excess of the body of the state of Tennessee as set the powers conferred, or which could be conforth in amendment No. 4 to B. A. I., Or- ferred, by act of Congress upon the Secreder No. 107.] And that the defendants retary of Agriculture under the Constitution ceived said cattle south of said quarantine of the United States of America, and that line, and transported them north and out the said act of Congress, approved February of a quarantine district, and south of the 2, 1903, under which the Secretary of Agrisaid quarantine line, and transported them culture assumed to promulgate said orders north through the state of Tennessee into and regulations, was itself unconstitutional, this county and state, and unloaded them null, and void, as being in conflict with the in the town of Arlington, and placed them Constitution of the United States of Ameriin their stock pens adjacent to the public ca, and in excess of the powers conferred highway and commons, where plaintiff's by it upon the Congress. cows came in contact with the germ of Tex- "Said defendant, Illinois Central Railroad as cow fever that said cattle had on them Company, further contended throughout the when put in the pens as aforesaid; that trial of said cause that no right of action said stock pens were suffered and permitted against it accrued to the plaintiff by reason to remain open and exposed to cattle after of any of the alleged regulations or orders the removal of said cattle, without disin- made or promulgated by the Secretary of fecting, or any other effort to protect ex- Agriculture, and offered in evidence upon posed stock, and plaintiff's cows contracted the trial of this action, or by reason of the Texas cow fever from said germs produced alleged failure on the part of the defendant from said cattle while in said stock pens, to observe or to comply with any of said to the damage of plaintiff.
regulations or orders, on the ground that "Wherefore he prays as in his original the said regulations or orders did not aspetition."
sume or attempt to give, and that the said The court sustained the demurrer to the act of Congress did not assume or attempt amended answer of the defendant, and upon to give, to the plaintiff herein, or to any the issue joined, the case was sent to the other in like situation, a remedy by way of jury. A verdict and judgment were ren- civil action against the defendant herein for dered against the railroad company, and in its alleged breach of any of said regulations favor of the plaintiff below.
or orders made or promulgated by the SecThere was no dispute as to the transpor- retary of Agriculture, and throughout the tation of the cattle from a point south of trial of said action the defendant, Illinois the quarantine line to a point north there Central Railroad Company, specially set up of, and the placing of them in pens at Ar- and claimed, even if said act of Congress lington. The court, over the defendant's ob- and said regulations and orders were valid jection, submitted the case to the jury upon under the Constitution and laws of the the questions of whether the transported United States, still it had a right, privilege, or immunity under the said act of Congress Hoyt, and Assistant Attorney General Mcor the said regulations or orders, from any Reynolds for the United States. liability to the plaintiff, J. U. McKendree, No brief was filed for defendant in error. in a civil action for damages claimed on account of its alleged breach of said regula
Mr. Justice Day delivered the opinion of tions or orders.
the court: "In allowing the said regulations or or- The government objects to the jurisdicders of the Secretary of Agriculture to be tion of this court to entertain the writ of given in evidence before the jury, and in error upon the ground that no Federal quesoverruling the motion of defendant to per- tion is raised within the intent and meaning emptorily instruct the jury to return a ver- of $ 709 of the Revised Statutes (U. S. dict in its favor, the Carlisle circuit court Comp. Stat. 1901, p. 575). But we are of disallowed the various contentions made as opinion that such questions were raised, and above stated on behalf of the Illinois Cen- that we are required upon this record to tral Railroad Company, and denied the review the judgment of the state court. claims made by it of the rights, privileges, An inspection of the record shows that or immunities specially claimed by it as the case as made by the plaintiff below above stated, and held that the various upon the amended petition was to recover claims made by it were not well founded in damages for the infection of his cattle belaw under the Constitution and laws of the cause of coming in contact with cattle transUnited States of America, and the claims ported by the railroad company from a of the plaintiff herein were established and point south to a point north of the quarana judgment in his favor rendered solely by tine line established by the Secretary of reason of defendant's alleged breach of said Agriculture, in a manner violative of reguregulations and orders.”
lations for the transportation and keeping The testimony tended to show that the of cattle established by the Secretary's orcows of the plaintiff came in contact with der. cattle transported by the railroad company
It was not an action to recover for negli. from a point south of the quarantine line gence upon common-law principles. The set forth in the amended petition.
complaint was amended in such form as to On March 13, 1903, the Secretary of count upon the supposed right of action acAgriculture, acting under cover of the act cruing to the plaintiff because of the violaof February 2, 1903 (32 Stat. at L. 791, tion of the Department's order. The dechap. 349, U. S. Comp. Stat. Supp. 1905, p. murrer of the plaintiff to the answer of the 613), entitled “An Act to Enable the Secre- railroad company, setting forth the uncontary of Agriculture to More Effectually stitutionality of the law and the action of Suppress and Prevent the Spread of Con- the Secretary thereunder, was sustained. tagious and Infectious Diseases of Live The certificate of the court below is given Stock, and for Other Purposes," established as to the extent and character of the Feda quarantine line from west to east through- eral rights and immunities claimed by the out the United States, from California to defendant and clearly states that the defendMaryland, and forbidding the transporta- ant alleged the unconstitutionality of the tion of cattle from points south of the line statute and order, that the order was in points north of the line, except in the excess of the power given the Secretary, and
that the statute gave no remedy in dammanner in the said order specified.
Section 9 of the order provided: "9. ages. Violation of these regulations is punishable
The court left the case to the jury under by a fine of not less than one hundred dol- instructions to find a verdict for the plainlars nor more than one thousand dollars, cattle were infected by coming in contact
tiff if it had been shown that the plaintiff's or by imprisonment not more than one year, with those transported by the railroad or by both such fine and imprisonment." By amendment of March 14, 1904, the that the act was constitutional and gave a x
company. It therefore necessarily decided Secretary of Agriculture adopted as a quar. right to recover damages for breach of the antine line a line running from west to east requirements of the Secretary made in purof the state of Tennessee, from the south suance thereof, and that the Secretary's orof which the cattle said to have infected der was not in excess of the statutory power those of the plaintiff were transported and given. The amended complaint, as we have placed in pens in a manner not in conformity said, counted upon the liability in this form. with the order.
The traverse of the amended complaint made
the issue. The certificate did not originate Messrs. J. M. Dickinson, Edmund F. Tra- the Federal question. “It is elementary that bue, and Blewett Lee for plaintiff in error. the certificate of a court of last resort of a
Attorney General Moody, Solicitor General state may not import a Federal question
into a record, where otherwise such question The constitutional objecticns urged to the does not arise; it is equally elementary that validity of the statute of February 2, 1903, such a certificate may serve to elucidate the and the Secretary's order, No. 107, purportdetermination whether a Federal question ing to be made under authority of the stat. exists." Rector v. City Deposit Bank Co. ute, raise questions of far-reaching impor200 U. S. 405–412, 50 L. ed. 527-529, 26 Sur.tance as to the power of Congress to authorCt. Rep. 289, 290; Marvin v. Trout, 199 U. ize the head of an executive department of S. 212, 223, 50 L. ed. 157, 161, 26 Sup. Ct. the government to make orders of this Rep. 31.
character, alleged to be an attempted deleThis case comes within the principle de- gation of the legislative power solely vested cided in Nutt v. Knut, 200 U. S. 12, 50 L. by the Constitution in Congress. These ed. 348, 26 Sup. Ct. Rep. 216, in which the questions, it is suggested by the counsel for court said:
the government, have become academic by "A party who insists that a judgment can reason of the passage of the later act of not be rendered against him consistently March 3, 1905, to enable the Secretary of with the statutes of the United States may Agriculture to establish and maintain quarbe fairly held, within the meaning of g 709, antine districts, to permit and regulate the to assert a right and immunity under such movement of cattle and other live stock statutes, although the statutes may not give therefrom, and for other purposes. 33 Stat. the party himself a personal or affirmative at L. 1264, chap. 1496, U. S. Comp. Stat. right that could be enforced by direct suit Supp. 1905, p. 617. against his adversary. Such has been the But we are of opinion that it is unnecesview taken in many cases where the author-sary to determine them in this case. We ity of this court to review the final judg. think the defendant was right in the conment of the state courts was involved. Lo- tention that, if the act of February 2, 1903, gan County Nat. Bank v. Townsend, 139 U. S. was constitutional, and rightfully conferred 67, 35 L. ed. 107, 11 Sup. Ct. Rep. 496; Du- the power upon the Secretary of Agriculbuque & S. C: R. Co. v. Richmond, 15 Wall. 3, ture to make orders and regulations con21 L. ed. 118; Swope v. Leffingwell, 105 U. cerning interstate commerce, there S. 3, 26 L. ed. 939; Anderson v. Carkins, 135 no power conferred upon the Secretary to U. S. 483, 486, 34 L. ed. 272, 274, 10 Sup. Ct. make regulations concerning intrastate Rep. 905; McNulta v. Lochridge, 141 U. S. 327, commerce, over which Congress has no con35 L. ed. 796, 12 Sup. Ct. Rep. 11; Metropol- trol, and concerning which we do not think itan Nat. Bank v. Claggett, 141 U. S. 520, this act, if it could be otherwise sustained, 35 L. ed. 841, 12 Sup. Ct. Rep. 60; McCor- intended to confer power upon him. Assummick v. Market Nat. Bank, 165 U. S. 538, ing, then, for this purpose, that the Secre546, 41 L. ed. 817, 820, 17 Sup. Ct. Rep. 433; tary was legally authorized to make orders California Nat. Bank v. Kennedy, 167 U. S. and regulations concerning interstate com362, 42 L. ed. 198, 17 Sup. Ct. Rep. 831." merce, we find that on March 13, 1903, he
To the same effect is Rector v. City De- adopted, in the order No. 107, the following posit Bank Co., supra.
regulation: Upon this record, read in the light of the “2. Whenever any state or territory locertificate, we think the defendant raised cated above or below said quarantine line, Federal questions as to the constitutionality as above designated, shall duly establish a of the law, and, if constitutional, whether different quarantine line, and obtain the the Secretary's order was within the power necessary legislation to enforce said lasttherein conferred, and the right to a per- mentioned line strictly and completely withsonal action for damages, in such manner as in the boundaries of said state or territory, to give this court jurisdiction of them under and said last above-mentioned line and the 8 709, Rev. Stat.
measures taken to enforce it are satisfacThe railroad company, by the proceed- tory to the Secretary of Agriculture, he may, ings and judgment in this case, was denied by a special order, temporarily .adopt said the alleged Federal rights and immunities state or territory line. specially set up in the proceedings, in the "Said adoption will apply only to that enforcement of a statute and departmental portion of said line specified, and may cease orders averred to be beyond the constitu- at any time the Secretary may deem it best tional power of Congress and the authority for the interests involved, and in no instance of the Secretary of Agriculture, and in the shall said modification exist longer than the rendition of a judgment for damages in an period specified in said special order; and, action under the statute and order, in op- at the expiration of such time, said quaranposition to the insistence of the defendant tine line shall revert, without further or. that, even if constitutional, the statute did der, to the line first above described. not confer such power or authorize a judg- “Whenever any state or territory shall ment for damages.
establish a quarantine line, for above pur
poses, differently located from the above- , below the line, but that is not the present described line, and shall obtain by legisla- order, and we must deal with it as we find tion the necessary laws to enforce the same it. Nor have we the power to so limit the completely and strictly, and shall desire Secretary's order as to make it apply only a modification of the Federal quarantine line to interstate commerce, which it is urged to agree with such state or territory line, is all that is here involved. For aught that the proper authorities of such state or terri- appears upon the face of the order, the tory shall forward to the Secretary of Agri. Secretary intended it to apply to all comculture a true map or description of such merce, and whether he would have made line and a copy of the laws for enforcement such an order, if strictly limited to interof the same, duly authenticated and cer- state commerce, we have no means of knowtified."
ing. The order is in terms single and inAnd afterward, on March 14, 1903, the divisible. In United States v. Reese, 92 U. Secretary adopted the quarantine line agreed S. 214, 221, 23 L. ed. 563, 565, upon this subto be established by the state of Tennessee, ject, this court said: and said to run about the middle of the
“We are, therefore, directly called upon state, and from the south of which the cat- to decide whether a penal statute, enacted tle in this case were transported, and pro- by Congress, with its limited powers, which vided :
is in general language broad enough to cover “And whereas said quarantine line, as wrongful acts without as well as within the above set forth, is satisfactory to this De constitutional jurisdiction, can be limited by partment, and legislation has been enacted judicial construction so as to make it operby the state of Tennessee to enforce said ate only on that which Congress may rightquarantine line, therefore the above line is fully prohibit and punish. For this purpose adopted for the state of Tennessee by this we must take these sections of the statute Department for the period beginning with as they are. We are not able to reject a part the date of this order and ending December which is unconstitutional and retain the re31, 1903, in lieu of the quarantine line de mainder, because it is not possible to sepascribed in the order of March 13, 1903, for rate that which is unconstitutional, if there said area unless otherwise ordered."
be any such, from that which is not. The The terms of order 107 apply to all cat-proposed effect is not to be attained by tle transported from the south of this line striking out or disregarding words that are to parts of the United States north thereof. in the section, but by inserting those that It would, therefore, include cattle trans are not now there. Each of the sections ported within the state of Tennessee from must stand as a whole, or fall altogether. the south of the line as well as those from The language is plain. There is no room for outside that state; there is no exception construction, unless it be as to the effect of in the order, and in terms it includes all the Constitution. The question, then, to cattle transported from the south of the be determined, is whether we can introduce line, whether within or without the state words of limitation into a penal statute so of Tennessee. It is urged by the govern- as to make it specific, when, as expressed, ment that it was not the intention of the it is general only." Secretary to make provision for intrastate And the court declined to make such limicommerce, as the recital of the order shows tation. an intention to adopt the state line, when And in Trade Mark Cases, 100 U. S. 82, the state by its legislature has passed the 99, 25 L. ed. 550, 553, the court said: necessary laws to enforce the same com- "If we should, in the case before us, unpletely and strictly. But the order in terms dertake to make, by judicial construction, a applies alike to interstate and intrastate law which Congress did not make, it is commerce. A party prosecuted for violating quite probable we should do what, if the this order would be within its terms if matter were now before that body, it would the cattle were brought from the south of be unwilling to do; namely, make a tradethe line to a point north of the line within mark law which is only partial in its operathe state of Tennessee. It is true the Section, and which would complicate the rights retary recites that legislation has been which parties would hold, in some instances, passed by the state of Tennessee to enforce under the act of Congress, and in others unthe quarantine line, but he does not der state law. Cooley, Const. Lim. 178, limit the order to interstate commerce 179; Com. v. Hitchings, 5 Gray, 482.” coming from the south of the line, and, as And see United States v. Ju Toy, 198 U. we have said, the order in terms covers it. S. 253, 262, 263, 49 L. ed. 1040, 1043, 1044, We do not say that the state line might 25 Sup. Ct. Rep. 044. not be adopted in a proper case, in te ex- We think these principles apply to the ercise of Federal authority, if límited in its case at bar, and that this order of the Seceffect to interstate commerce coming from retary, undertaking to make a stringent regualtion with highly penal consequences, | burdened by a municipal ordinance exacting is single in character, and includes com a license fee from a person employed by a merce wholly within the state, thereby ex. foreign corporation to solicit, within the ceeding any authority which Congress in municipality, orders for groceries, which the tended to confer upon him by the act in company fills by shipping goods to him for
the delivery to, and collection of the purquestion, if the same is a valid enactment. chase price from, the customer, who has the We, therefore, find it unnecessary to pass right to refuse the goods if not equal to upon the other questions which
were sample, such goods always being shipped in thought to be involved in the case at bar. distinct packages, corresponding to the sev.
The judgment of the state court will be eral orders, except in the case of brooms, reversed and the cause remanded to it for which, after being tagged and marked, like further proceedings not inconsistent with the other articles, according to the number this opinion.
ordered, are then tied together in bundles
of about a dozen, wrapped up conveniently Mr. Justice McKenna concurs in the re- for shipment.* gult.
IN CERROR to the Circuit Court of Carlisle
Submitted October 19, 1906. Decided DeILLINOIS CENTRAL RAILROAD COM.
cember 17, 1906.
N ERROR to the Superior Court of the
State of Pennsylvania to review a judg. This case is governed by the decision in ment which affirmed a conviction in the Illinois C. R. Co. v. McKendree, ante, 153. Court of Quarter Sessions of Northumber
land County, in that state, for violating a [No. 12.]
municipal ordinance exacting a license fee
from the person soliciting orders for a forSubmitted December 14, 1905. Restored to eign corporation and delivering the goods to
docket for oral argument December 18, the customer. Reversed. 1905. Decided December 17, 1906.
See same case below, 26 Pa. Super. Ct.
384. N ERROR to the Circuit Court of Carlisle
The facts are stated in the opinion. in
Messrs. Campbell M. Voorhees and Phileview a judgment in favor of plaintiff in an
mon S. Karshner for plaintiff in error. action to recover damages from a railway
Messrs. S. P. Wolverton and Harry S. company for the infection of cattle because Knight for defendant in error. of a violation of quarantine regulations promulgated by the Secretary of Agriculture.
Mr. Justice Holmes delivered the opinion Reversed and remanded for further proceed of the court: ings.
This case comes here upon a writ of error Messrs. J. M. Dickinson, Edmund F. Tra- to the superior court of Pennsylvania, an bue, and Blewitt Lee for plaintiff in error. appeal to the supreme court of the state No brief was filed for defendant in error. having been disallowed by the last-named
court. The superior court affirmed a conPer Mr. Justice Day:
viction of the plaintiff in error for violating This case involves the same questions, an ordinance of the borough of Sunbury, upon similar facts as No. 13, just decided. which made it unlawful to solicit orders for, Counsel filed a written stipulation that it sell, or deliver, at retail, either on the streets shall be controlled and determined by the
or by traveling from house to house, foreign ruling made in that case. The judgment is or domestic goods, not of the parties' own reversed, and cause remanded to the state manufacture or production, without a license, court for further proceedings not inconsist- for which a large fee was required. In the ent with this opinion.
court of quarter sessions, where the plain
tiff in error was convicted, the case was Mr. Justice McKenna concurs in the re-heard upon an agreed statement of facts. sult.
Upon these facts the plaintiff in error asked for a ruling that his acts were done in carry
ing on interstate commerce, and that the N. L. REARICK, Piff. in Err., ordinance was void as to him, under clause
. COMMONWEALTH OF PENNSYLVANIA. 3, § 8, article 1, of the Constitution, the com
merce clause; and saved his rights. The Interstate commerce-state regulation, 14th Amendment also was relied upon, but peddlers and drummers.
it is unnecessary to state details concernInterstate commerce is unlawfully I ing that.
*Ed. Note.-For cases in point, see vol. 10, Cent. Dig. Commerce, § 111.