Asbell v. State of Kansas

• Decision Date: 23 March 1908
• Docket Number: No. 166,166
• Citation: 209 U.S. 251,52 L.Ed. 778,28 S.Ct. 485
• Parties: B. F. ASBELL, Plff. in Err., v. STATE OF KANSAS
• Court: U.S. Supreme Court

209 U.S. 251

28 S.Ct. 485

52 L.Ed. 778

B. F. ASBELL, Plff. in Err.,

v STATE OF KANSAS.

No. 166.

Submitted March 6, 1908.

Decided March 23, 1908.

Messrs. Nelson Case and Archie D. Neale for plaintiff in error.

[Argument of Counsel from pages 251-253 intentionally omitted] Messrs. E. L. Burton, C. E. Pile, and W. B. Glasse for defendant in error.

[Argument of Counsel from pages 253-254 intentionally omitted]

Mr. Justice Moody delivered the opinion of the court:

A statute of the state of Kansas makes it a misdemeanor, punishable by fine or imprisonment or both, for any person to transport into the state cattle from any point south of the south line of the state, except for immediate slaughter, without hav- ing first caused them to be inspected and passed as healthy by the proper state officials or by the Bureau of Animal Industry of the Interior Department of the United States. Session Laws of 1905, chap. 495, § 27. The plaintiff in error was duly charged by information in the state court with a violation of this statute, and found guilty by the verdict of a jury. The conviction was affirmed by the supreme court of the state, and the case is now here on a writ of error, allowed by the chief justice of that court. The only Federal question insisted upon in argument is whether the statute was a restriction of interstate commerce which was not within the power of a state to impose.

The obvious purpose of the law was to guard against the introduction into the state of cattle infected with a communicable disease. It undoubtedly restricts the absolute freedom of interstate commerce in cattle, but only to the extent that all cattle coming to cross the guarded boundary are subjected to inspection to ascertain whether or not they are diseased. If healthy they are admitted; if diseased they are excluded. The validity of such a restriction for such purposes has been frequently considered by this court, and the principles applicable to the settlement of the question have been clearly defined. The governmental power over the commerce which is interstate is vested exclusively in the Congress by the commerce clause of the Constitution, and therefore is withdrawn from the states. It is not now necessary to cite the many cases supporting this proposition, or to consider some expressions in the books somewhat qualifying its generality, because in carefully chosen words it has recently been affirmed by us. At this term, Mr. Justice Peckham, speaking for the court, said: 'That any exercise of state authority, in whatever form manifested, which directly regulates interstate commerce, is repugnant to the commerce clause of the Constitution, is obvious.' Atlantic Coast Line R. Co. v. Wharton, 207 U. S. 328, 334, ante, 121, 123, 28 Sup. Ct. Rep. 121, 123.

But, though it may not legislate for the direct control of interstate commerce, the state may exercise any part of the legis- lative power which was not withdrawn from it expressly or by implication by the scheme of government put into operation by the Federal Constitution. It may sometimes happen that a law passed in pursuance of the acknowledged power of the state will have an indirect effect upon interstate commerce. Such a law, though it is essential to its validity that authority be found in a governmental power entirely distinct from the power to regulate interstate commerce, may reach and indirectly control that subject. It was at an early day observed by Chief Justice Marshall that legislation referable to entirely different legislative powers might affect the same subject. He said in Gibbons v. Ogden, 9 Wheat. 194, 204, 6 L. ed. 68, 72:

'So, if a state, in passing laws on subjects acknowledged to be within its control, and, with a view to those subjects, shall adopt a measure of the same character with one which Congress may adopt, it does not derive its authority from the particular power which has been granted, but from some other, which remains with the state, and may be executed by the same means. All experience shows that the same measures, or measures scarcely distinguishable from each other, may flow from distinct powers; but this does not prove that the powers themselves are identical. Although the means used in their execution may sometimes approach each other so nearly as to be confounded, there are other situations in which they are sufficiently distinct to establish their individuality.

'In our complex system, presenting the rare and difficult scheme of one general government, whose action extends over the whole, but which possesses only certain enumerated powers, and of numerous state governments, which retain and exercise all powers not delegated to the Union, contests respecting power must arise. Were it even otherwise, the measures taken by the respective governments to execute their acknowledged powers would often be of the same description, and might, sometimes, interfere. This, however, does not prove that the one is exercising, or has a right to exercise, the powers of the other.'

Foreseeing cases where national and state legislation based upon different powers might, in their application, be brought into conflict, he, in the same case (p. 211), declared that then 'the law of the state, though enacted in the exercise of powers not controverted, must yield,'—a rule which has constantly been applied by this court. These general principles control the decision of the case at bar....