affirmative allegations of which were con- cattle were infected, and, if so, whether the troverted.

This amended petition sets forth: "The plaintiff, J. U. McKendree, comes, and by leave of the court amends his petition, and says that the defendant, Illinois Central Railroad Company, on the 13th day of June, 1903, received one car of cattle at Grand Junction, Tennessee, to be transported to the town of Arlington, Kentucky, and on the 13th day of said month unloaded them in the stock pens in said town.

plaintiff's cattle contracted the disease from them while they were in the pens of the defendant company at Arlington.

The presiding judge of the Carlisle circuit court filed the following certificate:

"I, R. J. Bugg, sole presiding judge of the circuit court of Carlisle county, in the state of Kentucky, now and at the time of the trial of the above entitled cause, do hereby certify:

"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 re-tary 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 Texas cow fever that said cattle had on them when put in the pens as aforesaid; that said stock pens were suffered and permitted to remain open and exposed to cattle after the removal of said cattle, without disinfecting, or any other effort to protect exposed stock, and plaintiff's cows contracted Texas cow fever from said germs produced from said cattle while in said stock pens, to the damage of plaintiff. "Wherefore he prays as in his original the said regulations or orders did not aspetition."

The court sustained the demurrer to the amended answer of the defendant, and upon the issue joined, the case was sent to the jury. A verdict and judgment were rendered against the railroad company, and in favor of the plaintiff below.

There was no dispute as to the transportation of the cattle from a point south of the quarantine line to a point north thereof, and the placing of them in pens at Arlington. The court, over the defendant's objection, submitted the case to the jury upon the questions of whether the transported

"Said defendant, Illinois Central Railroad Company, further contended throughout the trial of said cause that no right of action against it accrued to the plaintiff by reason of any of the alleged regulations or orders made or promulgated by the Secretary of Agriculture, and offered in evidence upon the trial of this action, or by reason of the alleged failure on the part of the defendant to observe or to comply with any of said regulations or orders, on the ground that

sume or attempt to give, and that the said act of Congress did not assume or attempt to give, to the plaintiff herein, or to any other in like situation, a remedy by way of civil action against the defendant herein for its alleged breach of any of said regulations or orders made or promulgated by the Secretary of Agriculture, and throughout the trial of said action the defendant, Illinois Central Railroad Company, specially set up and claimed, even if said act of Congress and said regulations and orders were valid under the Constitution and laws of the 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, in a civil action for damages claimed on account of its alleged breach of said regulations or orders.

Section 9 of the order provided: "9. The court left the case to the jury under Violation of these regulations is punishable 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." that the act was constitutional and gave a company. It therefore necessarily decided right to recover damages for breach of the requirements of the Secretary made in pursuance thereof, and that the Secretary's order was not in excess of the statutory power given. The amended complaint, as we have said, counted upon the liability in this form. The traverse of the amended complaint made the issue. The certificate did not originate the Federal question. "It is elementary that the certificate of a court of last resort of a state may not import a Federal question

The constitutional objections urged to the validity of the statute of February 2, 1903, and the Secretary's order, No. 107, purporting to be made under authority of the statute, raise questions of far-reaching impor

into a record, where otherwise such question does not arise; it is equally elementary that such a certificate may serve to elucidate the determination whether a Federal question exists." Rector v. City Deposit Bank Co. 200 U. S. 405-412, 50 L. ed. 527-529, 26 Sup.tance as to the power of Congress to authorCt. Rep. 289, 290; Marvin v. Trout, 199 U. S. 212, 223, 50 L. ed. 157, 161, 26 Sup. Ct. Rep. 31.

This case comes within the principle decided in Nutt v. Knut, 200 U. S. 12, 50 L. ed. 348, 26 Sup. Ct. Rep. 216, in which the

court said:

"A party who insists that a judgment cannot be rendered against him consistently with the statutes of the United States may be fairly held, within the meaning of § 709, to assert a right and immunity under such statutes, although the statutes may not give the party himself a personal or affirmative right that could be enforced by direct suit against his adversary. Such has been the view taken in many cases where the authority of this court to review the final judgment of the state courts was involved. Logan County Nat. Bank v. Townsend, 139 U. S. 67, 35 L. ed. 107, 11 Sup. Ct. Rep. 496; Dubuque & S. C. R. Co. v. Richmond, 15 Wall. 3, 21 L. ed. 118; Swope v. Leffingwell, 105 U. S. 3, 26 L. ed. 939; Anderson v. Carkins, 135 U. S. 483, 486, 34 L. ed. 272, 274, 10 Sup. Ct. Rep. 905; McNulta v. Lochridge, 141 U. S. 327, 35 L. ed. 796, 12 Sup. Ct. Rep. 11; Metropolitan Nat. Bank v. Claggett, 141 U. S. 520, 35 L. ed. 841, 12 Sup. Ct. Rep. 60; McCormick v. Market Nat. Bank, 165 U. S. 538, 546, 41 L. ed. 817, 820, 17 Sup. Ct. Rep. 433; California Nat. Bank v. Kennedy, 167 U. S. 362, 42 L. ed. 198, 17 Sup. Ct. Rep. 831."

To the same effect is Rector v. City Deposit Bank Co., supra.

Upon this record, read in the light of the certificate, we think the defendant raised Federal questions as to the constitutionality of the law, and, if constitutional, whether the Secretary's order was within the power therein conferred, and the right to a personal action for damages, in such manner as to give this court jurisdiction of them under 709, Rev. Stat.

ize the head of an executive department of the government to make orders of this character, alleged to be an attempted delegation of the legislative power solely vested by the Constitution in Congress. These questions, it is suggested by the counsel for the government, have become academic by reason of the passage of the later act of March 3, 1905, to enable the Secretary of Agriculture to establish and maintain quarantine districts, to permit and regulate the movement of cattle and other live stock therefrom, and for other purposes. 33 Stat. at L. 1264, chap. 1496, U. S. Comp. Stat. Supp. 1905, p. 617.

But we are of opinion that it is unnecessary to determine them in this case. We think the defendant was right in the contention that, if the act of February 2, 1903, was constitutional, and rightfully conferred the power upon the Secretary of Agriculture to make orders and regulations concerning interstate commerce, there was no power conferred upon the Secretary to make regulations concerning intrastate commerce, over which Congress has no control, and concerning which we do not think this act, if it could be otherwise sustained, intended to confer power upon him. Assuming, then, for this purpose, that the Secretary was legally authorized to make orders and regulations concerning interstate commerce, we find that on March 13, 1903, he adopted, in the order No. 107, the following regulation:

"2. Whenever any state or territory located above or below said quarantine line, as above designated, shall duly establish a different quarantine line, and obtain the necessary legislation to enforce said lastmentioned line strictly and completely within the boundaries of said state or territory, and said last above-mentioned line and the 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 enforcement of a statute and departmental orders averred to be beyond the constitutional power of Congress and the authority of the Secretary of Agriculture, and in the rendition of a judgment for damages in an action under the statute and order, in opposition to the insistence of the defendant that, even if constitutional, the statute did not confer such power or authorize a judgment for damages.

"Said adoption will apply only to that portion of said line specified, and may cease at any time the Secretary may deem it best for the interests involved, and in no instance shall said modification exist longer than the period specified in said special order; and, at the expiration of such time, said quarantine line shall revert, without further order, to the line first above described.

"Whenever any state or territory shall 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 indivisible. In United States v. Reese, 92 U. S. 214, 221, 23 L. ed. 563, 565, upon this subject, this court said:

And afterward, on March 14, 1903, the Secretary adopted the quarantine line agreed to be established by the state of Tennessee, and said to run about the middle of the state, and from the south of which the cattle in this case were transported, and provided:

"We are, therefore, directly called upon to decide whether a penal statute, enacted by Congress, with its limited powers, which is in general language broad enough to cover wrongful acts without as well as within the constitutional jurisdiction, can be limited by judicial construction so as to make it operate only on that which Congress may rightfully prohibit and punish. For this purpose we must take these sections of the statute as they are. We are not able to reject, a part which is unconstitutional and retain the remainder, because it is not possible to separate that which is unconstitutional, if there be any such, from that which is not. The

striking out or disregarding words that are in the section, but by inserting those that are not now there. Each of the sections. must stand as a whole, or fall altogether. The language is plain. There is no room for construction, unless it be as to the effect of the Constitution. The question, then, to be determined, is whether we can introduce words of limitation into a penal statute so as to make it specific, when, as expressed, it is general only."

"And whereas said quarantine line, as above set forth, is satisfactory to this Department, and legislation has been enacted by the state of Tennessee to enforce said quarantine line, therefore the above line is adopted for the state of Tennessee by this Department for the period beginning with the date of this order and ending December 31, 1903, in lieu of the quarantine line described in the order of March 13, 1903, for said area unless otherwise ordered." 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 to parts of the United States north thereof. It would, therefore, include cattle transported within the state of Tennessee from the south of the line as well as those from outside that state; there is no exception in the order, and in terms it includes all cattle transported from the south of the line, whether within or without the state of Tennessee. It is urged by the government that it was not the intention of the Secretary to make provision for intrastate commerce, as the recital of the order shows an intention to adopt the state line, when the state by its legislature has passed the necessary laws to enforce the same completely and strictly. But the order in terms applies alike to interstate and intrastate commerce. A party prosecuted for violating this order would be within its terms if the cattle were brought from the south of the line to a point north of the line within the state of Tennessee. It is true the Secretary recites that legislation has been passed by the state of Tennessee to enforce the quarantine line, but he does not limit the order to interstate commerce coming from the south of the line, and, as we have said, the order in terms covers it. We do not say that the state line might not be adopted in a proper case, in the exercise of Federal authority, if limited in its effect to interstate commerce coming from

And the court declined to make such limitation.

And in Trade-Mark Cases, 100 U. S. 82, 99, 25 L. ed. 550, 553, the court said:

"If we should, in the case before us, undertake to make, by judicial construction, a law which Congress did not make, it is quite probable we should do what, if the matter were now before that body, it would be unwilling to do; namely, make a trademark law which is only partial in its operation, and which would complicate the rights which parties would hold, in some instances, under the act of Congress, and in others under state law. Cooley, Const. Lim. 178, 179; Com. v. Hitchings, 5 Gray, 482."

And see United States v. Ju Toy, 198 U. S. 253, 262, 263, 49 L. ed. 1040, 1043, 1044, 25 Sup. Ct. Rep. 644.

We think these principles apply to the case at bar, and that this order of the Secretary, 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 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 for shipment.*

Mr. Justice McKenna concurs in the result.

ILLINOIS CENTRAL RAILROAD COM-
PANY, Plff. in Err.,

V.

T. C. EDWARDS.

This case is governed by the decision in Illinois C. R. Co. v. McKendree, ante, 153.

[No. 12.]

Submitted December 14, 1905. Restored to docket for oral argument December 18, 1905. Decided December 17, 1906.

N ERROR to the Circuit Court of Carlisle County in the State of Kentucky to review a judgment in favor of plaintiff in an action to recover damages from a railway company for the infection of cattle because of a violation of quarantine regulations promulgated by the Secretary of Agriculture. Reversed and remanded for further proceedings.

Messrs. J. M. Dickinson, Edmund F. Trabue, and Blewitt Lee for plaintiff in error. No brief was filed for defendant in error.

Per Mr. Justice Day:

This case involves the same questions, upon similar facts as No. 13, just decided. Counsel filed a written stipulation that it shall be controlled and determined by the ruling made in that case. The judgment is reversed, and cause remanded to the state court for further proceedings not inconsistent with this opinion.

[No. 47.]

Submitted October 19, 1906. Decided December 17, 1906.

IN ERROR to the Superior Court of the

State of Pennsylvania to review a judg ment which affirmed a conviction in the Court of Quarter Sessions of Northumberland County, in that state, for violating a municipal ordinance exacting a license fee from the person soliciting orders for a foreign corporation and delivering the goods to the customer. Reversed.

See same case below, 26 Pa. Super. Ct. 384.

The facts are stated in the opinion. Messrs. Campbell M. Voorhees and Philemon S. Karshner for plaintiff in error. Messrs. S. P. Wolverton and Harry S. Knight for defendant in error.

Mr. Justice Holmes delivered the opinion of the court:

This case comes here upon a writ of error to the superior court of Pennsylvania, an appeal to the supreme court of the state having been disallowed by the last-named court. The superior court affirmed a conviction of the plaintiff in error for violating an ordinance of the borough of Sunbury, which made it unlawful to solicit orders for, sell, or deliver, at retail, either on the streets or by traveling from house to house, foreign or domestic goods, not of the parties' own manufacture or production, without a license, for which a large fee was required. In the court of quarter sessions, where the plaintiff 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 carrying on interstate commerce, and that the ordinance was void as to him, under clause 3, § 8, article 1, of the Constitution, the commerce clause; and saved his rights. The 14th Amendment also was relied upon, but it is unnecessary to state details concerning that.

*Ed. Note.-For cases in point, see vol. 10, Cent. Dig. Commerce, § 111.