Nav Co v. State of Washington

Decision Date01 March 1926
Docket NumberNo. 187,OREGON-WASHINGTON,187
PartiesR. & NAV. CO. v. STATE OF WASHINGTON
CourtU.S. Supreme Court

Messrs. Arthur C. Spencer, of Portland, Or., Henry W. Clark, of New York City, and F. T. Merritt, of Seattle, Wash., for plaintiff in error.

Messrs. R. G. Sharpe and John H. Dunbar, both of Olympia, Wash., for defendant in error.

[Argument of Counsel from pages 87-89 intentionally omitted] Mr. Chief Justice Taft delivered the opinion of the Court.

This was a bill of complaint filed by the state of Washington in the superior court of Thurston county of that state against the defendant, the Oregon-Washington Railway & Navigation Company, an interstate common carrier in the states of Idaho, Oregon, and Washington. The bill averred that there existed in the areas of the states of Utah, Idaho, Wyoming, Oregon, and Nevada, an injurious insect popularly called the alfalfa weevil, and scientifically known as the phytonomus posticus, which fed upon the leaves and foliage of the alfalfa plant, to the great damage of the crop; that the insect multiplied rapidly, and was propagated by means of eggs deposited by the female insect upon the leaves and stalks of the plant; that, when the hay was cured, the eggs clung to and remained dormant upon the hay, and even in the meal made from it; that the eggs and live weevils were likely to be carried to points where hay was transported, infecting the growing crop there; that when the hay was carried in common box cars the eggs and live weevils were likely to be shaken out and distributed along the route and communicated to the agricultural lands adjacent to the route; that a proper inspection to ascertain the presence of the eggs or weevils would require the tearing open of every bale of hay and sack of meal, involving a prohibitive cost of inspection, and that the only practical method of preventing the spread into uninfested districts was to prohibit the transportation of hay or meal from the district in which the weevil existed; that the pest is new to, and not generally distributed within, the state of Washington; that there is no known method of ridding a district infested of the pest; that subsequent to June 8, 1921, and prior to September 17, 1921, information was received by the Washington director of agriculture that there was a probability of the introduction of the weevil into the state across its boundaries; that he thereupon investigated thoroughly the insect and the areas where such pests existed, and ascertained it to be in the whole of the state of Utah, all portions of the state of Idaho Lying south of Idaho county, the counties of Uinta and Lincoln in the state of Wyoming, the county of Delta in the state of Colorado, the counties of Malheur and Baker in the state of Oregon, and the county of Washoe in the state of Nevada; that he, with the approval of the Governor of the state, thereupon, on or about September 17, 1921, made and promulgated a quarantine regulation and order, under the terms of which he declared a quarantine against all of the above-described areas, and forbade the importation into Washington of alfalfa hay and alfalfa meal, except in sealed containers, and fixed the boundaries of the quarantine. The bill further averred that the defendant, knowing of the proclamation, and in violation thereof, had caused to be shipped into Washington, in common box cars, and not in sealed containers, approximately 100 cars of alfalfa hay, consigned from various points in the state of Idaho lying south of Idaho county, and through the state of Oregon and into the state of Washington, in direct violation of the quarantine order, and that, unless enjoined, the defendant would continue to make these shipments from such quarantined area in the state of Idaho into and through the state of Washington; that large quantities of alfalfa were grown in the eastern and central portions of Washington, and adjacent to the railroad lines of the defendant and other railroads over which such shipments of alfalfa hay were shipped and were likely to be shipped in the future, unless an injunction was granted, to the great and irreparable damage of the citizens of Washington growing alfalfa therein. A tempo- rary injunction was issued, and then a demurrer was filed by the defendants. The demurrer was overruled. An answer was filed, and in each of the pleadings was set out the claim by the defendant that the action and proclamation of the director of agriculture and the Governor, and chapter 105 of the Laws of Washington of 1921, under which they acted, were in contravention of the interstate commerce clause of the federal Constitution, and in conflict with an act of Congress.

At the hearing there was evidence on behalf of the state that the Oregon-Washington and Northern Pacific Railroads ran through the parts of the state where the alfalfa was raised; that the weevil had first appeared in Utah in 1904 in Salt Lake City, and that it had spread about 10 miles a year; that it came from Russia and Southern Europe; that it would be impossible to adopt any method of inspection of alfalfa hay to keep out the weevil, not prohibitory in cost; that in Europe the weevil is not a serious pest, because its natural enemies exist there, and they keep it down; that the United States government had attempted to introduce parasites, but that it takes a long time to secure a natural check from such a method; that methods by using poison sprays, by burning, and in other ways had been used to attack the pest, but that no one method has been entirely successful; that there is no practical way of eliminating the beetles completely, if the field once becomes infected, and the continuance of the pest will be indefinite; that the great danger of spreading the infection is through the transfer of hay from one section to another. In behalf of the defendant it was testified that the prevalent opinion in regard to the spread of the alfalfa weevil and the damage it was doing was vestly exaggerated; that the spread of the weevil from hay shipped in the cars through the state of Washington was decidedly improbable. The superior court made the temporary injunction permanent and the Supreme Court of Washington affirmed the decree. This is a writ of error under section 237 of the Judicial Code (Comp. St. § 1214) to that decree.

By chapter 105 of the Washington Session Laws of 1921, p. 308, the director is given the power and duty, with the approval of the Governor, to establish and maintain quarantine needed to keep out of the state contagion or infestation by disease of trees and plants and injurious insects or other pests, to institute an inspection to prevent any infected articles from coming in, except upon a certificate of investigation by such director, or in his name by an inspector. Upon information received by the director of the existence of any infectious plant, disease, insect or weed pest, new to or not generally distributed within the state, dangerous to the plant industry of the state, he is required to proceed to investigate the same, and then enforce necessary quarantine. There is a provision for punishment of a fine of not less than $100, or more than $1,000, or by both such fine and imprisonment, for violation of the act.

In the absence of any action taken by Congress on the subject-matter, it is well settled that a state, in the exercise of its police power, may establish quarantines against human beings, or animals, or plants, the coming in of which may expose the inhabitants, or the stock, or the trees, plants, or growing crops, to disease, injury, or destruction thereby, and this in spite of the fact that such quarantines necessarily affect interstate commerce.

Chief Justice Marshall, in Gibbons v. Ogden, 9 Wheat, 1, 6 L. Ed. 23, speaking of inspection laws, says at page 203:

'They form a portion of that immense mass of legislation, which embraces everything within the territory of a state, not surrendered to the general government, all which can be most advantageously exercised by the states themselves. Inspection laws, quarantine laws, health laws of every description, as well as laws for regulating the in- ternal commerce of a state, and those which respect turnpike roads, ferries, etc., are component parts of this mass.'

Again he says at page 205:

'The acts of Congress, passed in 1796 and 1799, * * * empowering and directing the officers of the general government to conform to and assist in the execution of the quarantine and health laws of a state, proceed, it is said, upon the idea that these laws are constitutional. It is undoubtedly true, that they do proceed upon that idea; and the constitutionality of such laws has never, so far as we are informed, been denied. But they do not imply an acknowledgment that a state may rightfully regulate commerce with foreign nations, or among the states; for they do not imply that such laws are an exercise of that power, or enacted with a view to it. On the contrary, they are treated as quarantine and health laws, are so denominated in the acts of Congress, and are considered as flowing from the acknowledged power of a state to provide for the health of its citizens. But as it was apparent that some of the provisions made for this purpose, and in virtue of this power, might interfere with and be affected by the laws of the United States, made for the regulation of commerce, Congress, in that spirit of harmony and conciliation which ought always to characterize the conduct of governments standing in the relation which that of the Union and those of the states bear to each other, has directed its officers to aid in the execution of these laws, and has, in some measure, adapted its own legislation to this object, by making provisions in aid of those of the states. But in making these provisions the opinion is unequivocally manifested that Congress may control the state laws, so far as it may...

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