Must Hatch Incubator Co. v. Patterson

• Citation: 27 F.2d 447
• Decision Date: 14 May 1928
• Docket Number: No. 8953,341-E.,8953
• Parties: MUST HATCH INCUBATOR CO., Inc., v. PATTERSON, Governor of Oregon, et al. SAME v. HARTLEY, Governor of Washington, et al.
• Court: U.S. District Court — District of Oregon

27 F.2d 447 (1928)

MUST HATCH INCUBATOR CO., Inc., v. PATTERSON, Governor of Oregon, et al.

SAME v. HARTLEY, Governor of Washington, et al.

Nos. 8953, 341-E.

District Court, D. Oregon District Court, W. D. Washington, S. D.

May 14, 1928.

Dey, Hampson & Nelson, of Portland, Or., and Bogle, Bogle & Gates, of Seattle, Wash., for plaintiffs.

I. H. Van Winkle, Atty. Gen., and Willis S. Moore, Asst. Atty. Gen., for defendants Patterson and others.

John H. Dunbar, Atty. Gen., and B. B. Adams, Asst. Atty. Gen., for defendants Hartley and others.

Before GILBERT, Circuit Judge, and BEAN and CUSHMAN, District Judges.

PER CURIAM.

Alleging them to be in violation of the commerce clause of the Constitution, these suits were brought, one in Oregon and the other in Washington, to enjoin and restrain the enforcement of board or department regulations of the respective states, prohibiting the shipment or bringing into those states of baby chicks, unless accompanied by an official health certificate showing that they are, and have come, from parent stock which has been found free from bacillary white diarrhea, by application of the agglutination test within 12 months immediately prior to their importation or such other test or tests as may be prescribed or approved by the Bureau of Animal Industry of the Department of Agriculture of the United States. While the regulations of which complaint is made in the two cases are not identical, they do not essentially differ, in so far as the questions presented are concerned. By stipulation, the two cases were heard together.

Plaintiff cites Hannibal & St. Joseph R. Co. v. Husen, 95 U. S. 465, 472, 24 L. Ed. 527; Gibbons v. Ogden, 9 Wheat, 1, 205, 6 L. Ed. 23; Minnesota Rate Case, 230 U. S. 352, 406, 33 S. Ct. 729, 57 L. Ed. 1511, 48 L. R. A. (N. S.) 1151, Ann. Cas. 1916A, 18; O.-W. R. & N. Co. v. State of Washington, 270 U. S. 87, 46 S. Ct. 279, 70 L. Ed. 482; Vide, Napier v. A. C. L. R. Co., 272 U. S. 605, 47 S. Ct. 207, 71 L. Ed. 432; Reid v. Colorado, 187 U. S. 137, 23 S. Ct. 92, 47 L. Ed. 108; Chicago, B. & Q. Ry. Co. v. Frye-Bruhn Co. (C. C. A.) 184 F. 15, 21; Asbell v. Kansas, 209 U. S. 251, 28 S. Ct. 485, 52 L. Ed. 778, 14 Ann. Cas. 1101.

Defendants in No. 8953 cite Adams v. Lytle (C. C.) 154 F. 876; Chicago, B. & Q. Ry. Co. v. Frye-Bruhn (C. C. A.) 184 F. 15; Evans v. Chicago N. W. R. Co., 109 Minn. 64, 122 N. W. 876, 26 L. R. A. (N. S.) 278; Commonwealth v. Moore, 214 Mass. 19, 100 N. E. 1071; State v. Rasmussen, 7 Idaho, 1, 59 P. 933, 52 L. R. A. 78, 97 Am. St. Rep. 234; Hannibal & St. Joseph R. Co. v. Husen, 95 U. S. 465, 24 L. Ed. 527; Kimmish v. Ball, 129 U. S. 217, 9 S. Ct. 277, 32 L. Ed. 695; Rasmussen v. Idaho, 181 U. S. 198, 21 S. Ct. 594, 45 L. Ed. 820; Savage v. Jones, 225 U. S. 501, 32 S. Ct. 715, 56 L. Ed. 1182; Missouri, Kansas & Texas Ry. Co. v. Haber, 169 U. S. 613, 18 S. Ct. 488, 42 L. Ed. 878; Freeborn v. Smith, 2 Wall. 177, 17 L. Ed. 922; United States v. Heinszen, 206 U. S. 370, 27 S. Ct. 742, 51 L. Ed. 1098, 11 Ann. Cas. 688; Windsor v. City of Des Moines, 110 Iowa, 175, 81 N. W. 476, 80 Am. St. Rep. 280; Morris v. Duby, 273 U. S. 641, 47 S. Ct. 109, 71 L. Ed. 818; Id., 274 U. S. 136, 47 S. Ct. 548, 71 L. Ed. 966; Clark v. Poor, 274 U. S. 554, 47 S. Ct. 702, 71 L. Ed. 1199.

Defendants in 341-E cite Thurston v. Carter, 112 Me. 361, 92 A. 295, L. R. A. 1915C, 359, Ann. Cas. 1917A, 389; 1 Halsbury, 365; Holcomb v. Van Zylen, 174 Mich. 274, 140 N. W. 521, 44 L. R. A. (N. S.) 607, Ann. Cas. 1915A, 1241; State v. Bruner, 111 Ind. 98, 12 N. E. 103; Huber v. Mohn, 37 N. J. Eq. 432; Reichie v. Smythe, 80 U. S. (13 Wall.) 162, 20 L. Ed. 566.

It is well settled that a state may, in the exercise of its police power, make laws and regulations to prevent the introduction into it of diseased animals and plants, the coming of which may expose its inhabitants, stock, or plants to injury or disease, although interstate or foreign commerce is involved, subject, however, "to the paramount authority of Congress, if it decides to assume control." Gibbons v. Ogden, 9 Wheat. 203, 6 L. Ed. 23; Minnesota Rate Cases, 230 U. S. 352, 33 S. Ct. 729, 57 L. Ed. 1511, 48 L. R. A. (N. S.) 1151, Ann. Cas. 1916A, 18; Oregon-Washington R. & N. Co. v. Washington, 270 U. S. 87, 46 S. Ct. 279, 70 L. Ed. 482.

The question for decision is: Has Congress "assumed control" of the entire field of transportation of live poultry from one state to another, in so far as means for the prevention and suppression of dangerous, contagious, infectious, or communicable diseases are concerned? There are two acts of Congress, consideration of which is necessary in determining this question: One, Act Feb. 2, 1903, 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," 32 Stat. at Large, 791, Comp. Stat. § 8698 et seq. (21 USCA § 120 et seq.), and the other, Act March 3, 1905, entitled "An act 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 Large, 1264, Comp. Stat. § 8701 et seq. (21 USCA § 123 et seq.).

By the first of these acts the Secretary of Agriculture is authorized and directed to establish such rules and regulations concerning the transportation of live stock from any place within the Untied States, where he may have reason to believe dangerous, contagious, infectious, or communicable diseases among such live stock may exist, into and through any state or territory as he may deem necessary. It further provides that, whenever any inspector or assistant inspector of the Bureau of Animal Industry shall issue a certificate showing such officer had inspected any cattle or other live stock, which were about to be driven or transported from any such locality to another, as above stated, and had found them free from infectious, contagious, or communicable disease, the animals so inspected and certified may be shipped, driven, or transported from such place into and through any state or territory without further inspection.

By the second of these acts the Secretary of Agriculture is authorized and directed to quarantine any state or territory, or portion thereof, when he shall determine the fact that cattle or other live stock in such state or territory are affected with any contagious, infectious, or communicable disease, and when the public safety will permit make rules and regulations permitting and governing the inspection, disinfection, certification, treatment, handling, and method and manner of delivery and shipment from any quarantined state or territory into another state or territory. This law makes it a misdemeanor to move, or allow to be moved, any live stock from any quarantined state, territory, or quarantined portion of a state or territory, into any other state or territory under conditions other than those prescribed by the Secretary of Agriculture.

Both of these acts were amended on February 7, 1928, to include live poultry. It seems clear, from the language of these acts as recently amended, that Congress intended thereby to give the Agricultural Department supervision of the shipment or transportation of live poultry, from one state to another, in so far as action in order to prevent or lessen the spread of dangerous, contagious, infectious,...