203 U.S. 514
ILLINOIS CENTRAL RAILROAD COMPANY, Plff. in Err.,
J. U. McKENDREE.
Submitted December 14, 1905
Restored to docket for oral argument December 18, 1905.
Suggestion of lack of jurisdiction submitted April 16, 1906.
Decided December 17, 1906.
Defendant in error, plaintiff below, brought an action against the railroad company as a common carrier operating a railroad through Carlisle county, Kentucky, setting forth [203 U.S. 514, 515] that the defendant received certain cars of infected cattle and transported them to Arlington, Carlisle county, Kentucky, where they were unloaded July 13, 1903, and placed in stock pens where the cattle of the plaintiff, rightfully running loose upon the commons, could and did come in contact with the infected cattle, and contracted Texas cow fever. That the company knew or could have known, by the exercise of reasonable care, that the cattle had infectious germs when unloaded, having been brought from an infected district, in conflict with well-known quarantine laws.
A general demurrer was interposed by defendant and overruled.
After an answer of general denial the defendant filed an amended answer:
A demurrer was filed by the plaintiff to the amended answer.
The plaintiff filed an amended petition, the affirmative allegations of which were controverted.
This amended petition sets forth:
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 cattle were infected, and, if so, whether the 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:
The testimony tended to show that the cows of the plaintiff came in contact with cattle transported by the railroad company from a point south of the quarantine line set forth in the amended petition.
On March 13, 1903, the Secretary of Agriculture, acting under cover of the act of February 2, 1903 (32 Stat. at L. 791, chap. 349, U. S. Comp. Stat. Supp. 1905, p. 613), entitled 'An Act to Enable the Secretary of Agriculture to More Effectually Suppress and Prevent the Spread of Contagious and Infectious Diseases of Live Stock, and for Other Purposes,' established a quarantine line from west to east throughout the United States, from California to Maryland, and forbidding the transportation of cattle from points south of the line to points north of the line, except in the manner in the said order specified.
Section 9 of the order provided: '9. Violation of these regulations is punishable by a fine of not less than one hundred dollars nor more than one thousand dollars, or by imprisonment not more than one year, or by both such fine and imprisonment.'
By amendment of March 14, 1904, the Secretary of Agriculture adopted as a quarantine line a line running from west [203 U.S. 514, 520] to east of the state of Tennessee, from the south of which the cattle said to have infected those of the plaintiff were transported and placed in pens in a manner not in conformity with the order.
Messrs. J. M. Dickinson, Edmund F. Trabue, and Blewett Lee for plaintiff in error.
[203 U.S. 514, 522] Attorney General Moody, Solicitor General Hoyt, and Assistant Attorney General McReynolds for the United States.
No brief was filed for defendant in error.
Mr. Justice Day delivered the opinion of the court:
The government objects to the jurisdiction of this court to entertain the writ of error upon the ground that no Federal question is raised within the intent and meaning of 709 of the Revised Statutes (U. S. Comp. Stat. 1901, p. 575). But we are of opinion that such questions were raised, and that we are required upon this record to review the judgment of the state court.
An inspection of the record shows that the case as made by the plaintiff below upon the amended petition was to recover damages for the infection of his cattle because of coming in contact with cattle transported by the railroad company from a point south to a point north of the quarantine line established by the Secretary of Agriculture, in a manner violative of regulations for the transportation and keeping of cattle established by the Secretary's order.
It was not an action to recover for negligence upon common-law principles. The complaint was amended in such form as to count upon the supposed right of action accruing to the [203 U.S. 514, 525] plaintiff because of the violation of the Department's order. The demurrer of the plaintiff to the answer of the railroad company, setting forth the unconstitutionality of the law and the action of the Secretary thereunder, was sustained.
The certificate of the court below is given as to the extent and character of the Federal rights and immunities claimed by the defendant and clearly states that the defendant alleged the unconstitutionality of the statute and order, that the order was in excess of the power given the Secretary, and that the statute gave no remedy in damages.
The court left the case to the jury under instructions to find a verdict for the plaintiff if it had been shown that the plaintiff's cattle were infected by coming in contact with those transported by the railroad company. It therefore necessarily decided that the act was constitutional and gave a 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 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. Ct. Rep. 289, 290; Marvin v. Trout, 199 U.S. 212, 223 , 50 S. 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:
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.
The railroad company, by the proceedings and judgment in this case, was denied the alleged Federal rights and immunities 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.
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 importance as to the power of Congress to authorize 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 [203 U.S. 514, 527] 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:
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:
The terms of order 107 apply to all cattle 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 inter- [203 U.S. 514, 529] state 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 below the line, but that is not the present order, and we must deal with it as we find it. Nor have we the power to so limit the Secretary's order as to make it apply only to interstate commerce, which it is urged is all that is here involved. For aught that appears upon the face of the order, the Secretary intended it to apply to all commerce, and whether he would have made such an order, if strictly limited to interstate commerce, we have no means of knowing. The order is in terms single and indivisible. In United States v. Reese, 92 U.S. 214, 221 , 23 S. L. ed. 563, 565, upon this subject, this court said:
And the court declined to make such limitation.
And in Trade-Mark Cases, 100 U.S. 82, 99 , 25 S. L. ed. 550, 553, the court said:
And see United States v. Ju Toy, 198 U.S. 253, 262 , 49 S. 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, is single in character, and includes commerce wholly within the state, thereby exceeding any authority which Congress intended to confer upon him by the act in question, if the same is a valid enactment. We, therefore, find it unnecessary to pass upon the other questions which were thought to be involved in the case at bar.
The judgment of the state court will be reversed and the cause remanded to it for further proceedings not inconsistent with this opinion.
Mr. Justice McKenna concurs in the result.