W. P. SMITH, Piff. in Err., v. ST. LOUIS & SOUTHWESTERN RAILWAY COMPANY OF TEXAS.

There are other questions in the record besides the Federal one, upon which the writ of error is based. They seem not to have been earnestly pressed, either in the trial court or in the court of civil appeals. They were not passed on by either court. The court of civil appeals, however, said:

'It was shown that appellee's vendors had actual notice of the quarantine, and that appellant had not. It was also shown that after such notice was brought home to appellant it sought permission of the sanitary commission to deliver the cattle. The sanitary commission ruled and ordered otherwise. It has been given power to make rules. It has the power to call upon the sheriff and peace officers to enforce them. It was the duty of such officers to obey the orders of such commission. Our law also provides heavy penalties for a violation of the rules and regulations of the sanitary commission.'

It is possible that the court may have concluded that the defense which those facts suggest could not be made by the railway company, and that, notwithstanding the plaintiff in error could compel the company to receive his cattle, and force into contest the constitutionality of the Texas statute, either by resisting the imposition of its penalties or in some other way. At any rate, the court rested its decision on the statute, holding it valid; and it is its judgment which we are called upon to review.

To what extent the police power of the state may be exerted on traffic and intercourse with the state, without conflicting with the commerce clause of the Constitution of the United States, has not been precisely defined. In the case of Henderson v. New York, 92 U. S. 259, sub nom. Henderson v. Wickham, 23 L. ed. 543, it was held that the statute of the state, which, aiming to secure indemnity against persons coming from foreign countries becoming a charge upon the state, required shipowners to pay a fixed sum for each passenger,—that is, to pay for all passengers,—not limiting the payment to those who might actually become such charge,—was void. Whether the statute would have been valid if so limited was not decided.

In Chy Lung v. Freeman, 92 U. S. 275, 23 L. ed. 550, a statute declaring the same purpose as the New York statute, and apparently directed against persons mentally and physically infirm, and against convicted criminals and immoral women, was also declared void, because it imposed conditions on all passengers, and invested a discretion in officers which could be exercised against all passengers. The court, by Mr. Justice Miller, said:

'We are not called upon by this statute to decide for or against the right of a state, in the absence of legislation by Congress, to protect herself by necessary and proper laws against paupers and convicted criminals from abroad; nor to lay down the definite limit of such right if it exist. Such a right can only arise from a vital necessity for its exercise, and cannot be carried beyond the scope of that necessity. When a state statute limited to provisions necessary and appropriate to that object alone shall, in a proper controversy, come before us, it will be time enough to decide that question.'

In Hannibal & St. J. R. Co. v. Husen, 95 U. S. 465, 24 L. ed. 527, a statute of Missouri which provided that 'no Texas, Mexican, or Indian cattle shall be driven or otherwise conveyed into or remain in any county in this state between the 1st day of March and the 1st day of November in each year, by any person or persons whatsoever,' was held to be in conflict with the clause of the Constitution which gives to Congress the power to regulate interstate commerce.

The case was an action for damages against the railroad company for bringing cattle into the state in violation of the act. A distinction was made between a proper and an improper exertion of the police power of the state. The former was confined to the prohibition of actually infected or diseased cattle and to regulations not transcending such prohibition. The statute was held not to be so confined, and hence was declared invalid.

The relation of the police power of a state and the power of Congress to regulate commerce came up again in Bowman v. Chicago & N. W. R. Co. 125 U. S. 465, 31 L. ed. 700, 1 Inters. Com. Rep. 823, 8 Sup. Ct. Rep. 689, 1062. The principle which underlies both powers and the ranged and operation of those powers were considered. The action was against the railroad company for refusing to transport beer from Chicago to Marshalltown, in Iowa. The refusal was attempted to be justified under a statute of Iowa against traffic in intoxicating liquors and the conveyance of the same by an express or railway company into the state, except under certain conditions. The statute was decided to be a regulation of commerce,—to be not within the police power of the state, and therefore void. Leisy v. Hardin, 135 U. S. 100, 34 L. ed. 128, 3 Inters. Com. Rep. 36, 10 Sup. Ct. Rep. 681, is of the same general character, and need not be commented upon. See also Scott v. Donald, 165 U. S. 59, 41 L. ed. 633, 17 Sup. Ct. Rep. 265.

In Schollenberger v. Pennsylvania, 171 U. S. 1, 43 L. ed. 49, 18 Sup. Ct. Rep. 757, some prior cases were reviewed, and the court, speaking by Mr. Justice Peckham, said:

'The general rule to be deduced from the decisions of this court is that a lawful article of commerce cannot be wholly excluded from importation into a state from another state where it was manufactured or grown. A state has power to regulate the introduction of any article, including a food product, so as to insure purity of the article imported, but such police power does not include the total exclusion even of an article of food.

'In Minnesota v. Barber, 136 U. S. 313, 34 L. ed. 455, 3 Inters. Com. Rep. 185, 10 Sup. Ct. Rep. 862, it was held that an inspection law relating to an article of food was not a rightful exercise of the police power of the state, if the inspection prescribed were of such a character, or if it were burdened with such conditions, as would wholly prevent the introduction of the sound article from other states. This was held in relation to the slaughter of animals whose meat was to be sold as food in the state passing the so-called inspection law. The principle was affirmed in Brimmer v. Rebman, 138 U. S. 78, 34 L. ed. 862, 3 Inters. Com. Rep. 485, 11 Sup. Ct. Rep. 213; and in Scott v. Donald, 165 U. S. 58, 97, 41 L. ed 632, 644, 17 Sup. Ct. Rep. 265.'

The exclusion in the case at bar is not as complete as in the cited cases. That, however, makes no difference if it is within their principle; and their principle does not depend upon the number of states which are embraced in the exclusion. It depends upon whether the police power of the state has been exerted beyond its province,—exerted to regulate interstate commerce,—exerted to exclude, without discrimination, the good and the bad, the healthy and the diseased, and to an extent beyond what is necessary for any proper quarantine. The words in italics express an important qualification. The prevention of disease is the essence of a quarantine law. Such law is directed, not only to the actually diseased, but to what has become exposed to disease. In Morgan's L. & T. R. & S. S. Co. v. Louisiana Bd. of Health, 118 U. S. 455, 30 L. ed. 237, 6 Sup. Ct. Rep. 1114, the quarantine system of Louisiana was sustained. It established a quarantine below New Orleans, provided health officers and inspection officers, and fees for them, to be paid by the ships detained and inspected. The system was held to be a proper exercise of the police power of the state for the protection of health, though some of its rules amounted to regulations of commerce with foreign nations and among the states. In Kimmish v. Ball, 129 U. S. 217, 32 L. ed. 695, 2 Inters. Com. Rep. 407, 9 Sup. Ct. Rep. 277, certain sections of the laws of Iowa were passed on. One of them imposed a penalty upon any person who should bring into the state any Texas cattle, unless they had been wintered at least one winter north of the southern boundary of the state of Missouri or Kansas; or should have in his possession any Texas cattle between the 1st day of November and the 1st day of April following. Another section made any person having in his possession such cattle liable for any damages which might accrue from allowing them to run at large, 'and thereby spreading the disease among other cattle, known as the Texas fever,' and there was, besides, criminal punishment. The court did not pass upon the 1st section. In commenting upon the 2d some pertinent remarks were made on the facts which justified the statute, and the case of Hannibal & St. J. R. Co. v. Husen, 95 U. S. 465, 24 L. ed. 527, was explained. It was said that the case 'interpreted the law of Missouri as saying to all transportation companies: 'You shall not bring into the state any Texas cattle, or any Mexican cattle, or Indian cattle, between March 1st and December 1st in any year, no matter whether they are free from disease or not, no matter whether they may do an injury to the inhabitants of the state or not; and if you do bring them in, even for the purpose of carrying them through the state without unloading them, you shall be subject to extraordinary liabilities.' p. 473, L. ed. 531. Such a statute, the court held, was not a quarantine law, nor an inspection law, but a law which interfered with interstate commerce, and therefore invalid. At the same time the court admitted unhesitatingly that a state may pass laws to prevent animals suffering from contagious or infectious diseases from entering within it. p. 472, L. ed. 530. No attempt was made to show that all Texas, Mexican, or Indian cattle coming from the malarial districts during the months mentioned were infected with the disease, or that such cattle were so generally infected that it would have been impossible to separate the healthy from the diseased. Had such proof been given, a different question would have been presented for the consideration of the court. Certainly all animals thus infected may be excluded from the state by its laws until they are cured of the disease, or at least until some mode of transporting them without danger of spreading it is devised.'

In Missouri, K. & T. R. Co. v. Haber, 169 U. S. 613, 42 L. ed. 878, 18 Sup. Ct. Rep. 488, the Husen Case was again commented upon, and what the law of Missouri was and was not was again declared. A statute of Kansas, however, which made any person who shall drive or ship into the state 'any cattle liable or capable of communicating Texas, splenetic or Spanish fever to any domestic cattle of this state shall be liable . . . for . . . damages,' was held not to be a regulation of commerce. It was also held that the statute was not repugnant to the act of Congress of March 29, 1884 (23 Stat. at L. 31, chap. 60), known as the animal industry act.

What, however, is a proper quarantine law—what a proper inspection law in regard to cattle—has not been declared. Under the guise of either a regulation of commerce will not be permitted. Any pretense or masquerade will be disregarded, and the true purpose of a statute ascertained. Henderson v. New York, 92 U. S. 259, sub nom. Henderson v. Wickham, 23 L. ed. 543, and Chy Lung v. Freeman, 92 U. S. 275, 23 L. ed. 550. But we are not now put to any inquiry of that kind. The good faith and sincerity of the Texas officers cannot be doubted, and the statutes under which they acted cannot be justifiably complained of. The regulations prescribed are complained of, but are they not reasonably adaptive to the purpose of the statutes,—not in excess of it? Quarantine regulations cannot be the same for cattle as for persons, and must vary with the nature of the disease to be defended against. As the court of civil appeals said: 'The necessities of such cases often require prompt action. If too long delayed the end to be attained by the exercise of the power to declare a quarantine may be defeated and irreparable injury done.'

It is urged that it does not appear that the action of the live-stock sanitary commission was taken on sufficient information. It does not appear that it was not, and the presumption which the law attaches to the acts of public officers must obtain and prevail. The plaintiff in error relies entirely on abstract right, which he seems to think cannot depend upon any circumstances, or be affected by them. This is a radical mistake. It is the character of the circumstances which gives or takes from a law or regulation of quarantine a legal quality. In some cases the circumstance would have to be shown to sustain the quarantine, as was said in Kimmish v. Bell, 129 U . S. 217, 32 L. ed. 695, 2 Inters. Com. Rep. 407, 9 Sup. Ct. Rep. 277. But the presumptions of the law are proof, and such presumptions exist in the pending case, arising from the provisions of and the duties enjoined by the statute, and sanction the action of the sanitary commission and the governor of the state. If they could have been, they should have been met and overcome, and the remarks of the court of civil appeals become pertinent:

'The facts in this case are not disputed. The plaintiff sues as for a conversion, because of a refusal to deliver his cattle at Fort Worth. It is necessary to his recovery that he show that it was the legal duty of the defendant company to make such delivery. It is for the breach of this alleged duty he sues; yet it nowhere appears from the record that before the quarantine line in question was established the sanitary commission did not make the most careful and thorough investigation into the necessity therefor, if, indeed, that matter could in any event be inquired into. So far as the record shows, every animal of the kind prohibited in the state of Louisiana may have been actually affected with charbon or anthrax; and it is conceded that this is a disease different from Texas or splenetic fever, and that it is contagious and infectious and of the most virulent character.'

Judgment affirmed.

I am unable to concur in the opinion and judgment of the court. The grounds of my dissent are these: (1) The railroad company was bound to discharge its duties as a carrier unless relieved therefrom by such quarantine regulations under the laws of Texas as were consistent with the Constitution of the United States. It could not plead in defense of its action the quarantine regulations adopted by the state sanitary commission and the proclamation of the governor of that state, if such regulations and proclamation were void under the Constitution of the United States. (2) The authority of the state to establish quarantine regulations for the protection of the health of its people does not authorize it to create an embargo upon all commerce involved in the transportation of live stock from Louisiana to Texas. The regulations and the governor's proclamation upon their face showed the existence of a certain cattle disease in one of the counties of Texas. If, under any circumstances, that fact could be the basis of an embargo upon the bringing into Texas from Louisiana of all live stock during a prescribed period, those circumstances should have appeared from the regulations and the proclamation referred to. On the contrary, there does not appear on the face of the transaction any ground whatever for establishing a complete embargo for any given period upon all transportation of live stock from Louisiana to Texas.

I think, therefore, that the regulations and proclamation upon which the defendant relied were to be deemed void and therefore inapplicable to the particular transportation referred to in the complaint.

It seems to me that the present case comes within the principles announced in Henderson v. New York, 92 U. S. 259, sub nom. Henderson v. Wickham, 23 L. ed. 543. That case involved the validity of a statute of New York having for its object the protection of the people of that state against the immigration of foreign paupers. It was held by this court to be unconstitutional, because 'its practical result was to impose a burden upon all passengers from foreign countries.' In that case it was said that, in whatever language a statute was framed, its purpose must be determined by its natural and reasonable effect. So, also, in Hannibal & St. J. R. Co. v. Husen, 95 U. S. 465, 473, 24 L. ed. 527, 531, we held that a statute of Missouri relating to the bringing into that state of any Texas, Mexican, or Indian cattle between certain dates was a plain intrusion upon the exclusive domain of Congress. This court said: 'It is not a quarantine law. It is not an inspection law. It says to all natural persons and to all transportation companies: 'You shall not bring into the state any Texas cattle, or any Mexican cattle, or Indian cattle, between March 1st and December 1st in any year, no matter whether they are free from disease or not, no matter whether they may do an injury to the inhabitants of the state or not; and if you do bring them in, even for the purpose of carrying them through the state without unloading them, you shall be subject to extraordinary liabilities.' Such a statute, we do not doubt, is beyond the power of a state to enact. To hold otherwise would be to ignore one of the leading objects which the Constitution of the United States was designed to secure.' What was said of the Missouri statute may be repeated as to the regulations adopted by the sanitary commission and the proclamation of the governor of Texas forbidding the bringing of cattle into that state from Louisiana. The result in my judgment is, in view of our former decisions, that the quarantine regulations and proclamation in question involved, by their natural and practical operation, an unauthorized obstruction to the freedom of interstate commerce. This must be so, even if the statute of Texas, reasonably interpreted, was itself not repugnant to the Constitution of the United States.

Mr. Justice White authorizes me to say that he concurs in these views.

The law of Texas for the creation of a live-stock sanitary commission, cited in the opinion of the court, provides that 'it shall be the duty of said commission, upon receipt by them of reliable information, . . . of any malignant disease, to go . . . and make a careful examination of the animals believed to be affected, . . . and if said disease is found to be of a malignant, contagious, or infectious character, they shall direct and enforce such quarantine lines and sanitary regulations as are necessary to prevent the spread of any such disease. And no domestic animal infected with disease, or capable of communicating the same, shall be permitted to enter or leave the district, premises, or grounds so quarantined, except by authority of the commissioners.'

I had supposed the authority of the commissioners to be fixed by this act, and their right to quarantine or forbid the entry of animals was limited to such as were infected with disease or capable of communicating the same.

The proclamation of the governor, based upon the report of the sanitary commission, covers two separate classes of cases. It finds that cattle in the southern portion of Jefferson county, Texas, are affected with disease, and liable to impart such disease to cattle ranging in the upper portion of Jefferson and other counties, and therefore forbids such cattle from being transported north or west of certain bayous running across the southern portion of Jefferson county. So far the order is within the statute.

But it also finds that the commission 'has reason to believe that charbon and anthrax has (broken out) or is liable to break out in the state of Louisiana,' and hence that no cattle are to be transported into Texas from Louisiana. This portion of the order seems to me a plain departure from the terms of the statute. It does not find that there are cattle in Louisiana 'infected with disease or capable of communicating the same,' but simply that the disease is liable to break out in that state. It does not even find that it has broken out, or that there are any cattle in that state capable of communicating the disease. If the fact that a contagious disease is liable to break out in a certain locality be sufficient to justify a quarantine against such locality, then it is possible that every port of the United States may quarantine against Cuban or other West Indian ports, since it is a well-known fact that yellow fever is liable to break out there at almost any time, and especially during the summer months.

The sweeping nature of this order is manifest by comparing it with the first order relating to the Jefferson county cattle. There is a finding there that the cattle in the southern portion of a particular county 'are affected with disease, known as charbon or anthrax, and are liable to impart such disease to cattle' ranging in the upper portion of Jefferson county, and therefore no cattle shall be transported north or west of the infected district. In other words, it finds the actual existence of disease within a definite and circumscribed locality, and prohibits the transportation of cattle from such locality to noninfected districts.

On the other hand, the second order assumes to quarantine against cattle from the entire state of Louisiana, without any finding that the disease has broken out there, or that the cattle in such state are liable to communicate such disease to other cattle. The order is not limited to cattle coming from any particular portion of the state, but applies to the whole state, regardless of the actual existence of the disease or the liability to communicate contagion.

It seems to me that the proclamation goes far beyond the authority of the statute, beyond the necessities of the case, and is a wholly unjustifiable interference with interstate commerce. The statute thus construed puts a power into the hands of a sanitary commission which is liable to be greatly abused, and to be put forward as an excuse for keeping out of Texas perfectly healthy animals from other states, and putting a complete stop to a large trade.

In the case of the Missouri, K. & T. R. Co. v. Haber, 169 U. S. 613, 42 L. ed. 878, 18 Sup. Ct. Rep. 488, the statute of Kansas in question applied only to 'cattle capable of communicating, or liable to impart what is known as Texas, splenetic or Spanish fever' to any domestic cattle of the state, and was a proper exercise of the power of quarantine, since healthy cattle were not interfered with. These were substantially the terms of the Texas statute, to which I see no objection; but the action of the commission was a plain departure from the terms of the statute, and I think unauthorized by law. It was practically as sweeping as the statute of Missouri, condemned by this court in Hannibal & St. J. R. Co. v. Husen, 95 U. S. 465, 24 L. ed. 527, which provided that 'no Texas, Mexican, or Indian cattle shall be driven or otherwise conveyed into, or remain, in any county in this state, between the 1st day of March and the 1st day of November in each year, by any person or persons whatsoever,' regardless of the fact whether these cattle were diseased or were capable of communicating disease. This was held to be in conflict with the interstate commerce clause of the Constitution. As justly observed of the opinion in that case by the court in its opinion in this case, 'A distinction was made between a proper and an improper exertion of the police power of the state. The former was confined to the prohibition of actually infected or diseased cattle, and to regulations not transcending such prohibition. The statute was held not to be so confined, and hence was declared invalid.' This is the precise objection I make to the finding of the commission, and to the proclamation of the governor in this case.

It is sufficient to say of the finding of the court of civil appeals of Texas that, 'so far as the record shows, every animal of the kind prohibited in the state of Louisiana may have been actually affected with charbon or anthrax,' that there is no such finding in the report of the commission or in the governor's proclamation, and that, under the statute, there must be a finding either of disease or of a liability to communicate disease, to justify the action of the commission. It cannot of its own motion put in force the quarantine laws of the state, without the finding of some facts that such enforcement is necessary to the protection of Texas cattle. I am therefore constrained to dissent from the opinion of the court.