State v. Rasmussen

• Decision Date: 23 January 1900
• Parties: STATE v. RASMUSSEN
• Court: Idaho Supreme Court

59 P. 933

7 Idaho 1

STATE v. RASMUSSEN

Supreme Court of Idaho

January 23, 1900

CONSTITUTIONAL LAW-DISEASED SHEEP-QUARANTINE.-An act of the Idaho legislature, establishing quarantine against diseased sheep etc., passed on March 13, 1899, held not to be in contravention of section 8, article 1, nor section 2, article 4, of the constitution of the United States.

(Syllabus by the court.)

APPEAL from District Court, Oneida County.

Judgment affirmed, with costs to respondent.

Brown &amp Henderson, S. C. Winters, and John J. Guheen, for Appellant.

The important question involved in this cause is the constitutionality of this legislation. It appears to have been settled and determined by this court in the case of State v. Duckworth, 5 Idaho 642, 51 P. 456; Territory v. Evans, 2 Idaho 658, 23 P. 115; Railway Co. v. Husen, 95 U.S. 465; Kimmish v Ball, 129 U.S. 217, 9 S.Ct. 277; Missouri etc. Ry. Co. v. Haber, 169 U.S. 613, 18 S.Ct. 488; Henderson v. Mayor, 92 U.S. 259. Wherever it is apparent that the legislation was not in good faith to provide for the health or regulation of their own property or persons, but to hamper or prevent the introduction of other property from other states to create difficulties with regard to them, the court declares the law unconstitutional as an attempt to interfere with commerce. (In re Rebman, 41 F. 868; Brimmer v. Rebman, 138 U.S. 78, 11 S.Ct. 213; Voight v. Wright, 141 U.S. 62, 11 S.Ct. 855; Minnesota v. Barber, 136 U.S. 313, 10 S.Ct. 862; Leisy v. Hardin, 135 U.S. 100, 10 S.Ct. 681; 1 United States Supp. Rev. Stats., p. 779; Vance v. W. A. Vandercock Co., 170 U.S. 444, 445, 18 S.Ct. 674.) It is for the legislature and not for the executive or judiciary to say what shall be quarantined, and on what terms and in what way these sheep shall be admitted or handled when they are admitted. The detail must be established by the legislature and not by the executive. This is a power that the legislature cannot delegate to the governor. (Sutherland on Statutory Construction, par. 68, p. 69, par. 69, p. 71; Slinger v. Henneman, 38 Wis. 504-508, 510; State v. Field, 17 Mo. 529, 59 Am. Dec. 275; Cooley's Constitutional Limitations, 1st ed., 116, 117, and note; Cooley's Constitutional Limitations 6th ed.)

Samuel H. Hays, Attorney General, for the State.

Quarantine laws are a familiar exercise of the police power by the state. Their enactment is within its lawful province and the making of regulations for their enforcement has always been in trusted to subordinate boards. (Train v. Boston Disinfecting Co., 144 Mass. 523, 59 Am. Rep. 113, 11 N.E. 929; Metcalfe v. City of St. Louis, 11 Mo. 103; Polinsky v. People, 73 N.Y. 65.) The act follows alone the line of the laws of the United States on these subjects. (U.S. Supp. Rev. Stats., 2d ed., p. 794; Act of Congress, Feb. 15, 1893.) Similar provisions are found in the statutes of other states. (Mont. Pol. Code, secs. 3008, 3035; Wyo. Laws 1899, secs. 2081, 2082; Ariz. Rev. Stats., sec. 2812.) No legislative authority is delegated under the act. (Field v. Clark, 143 U.S. 649, 12 S.Ct. 495; Hurst v. Warner, 102 Mich. 238, 47 Am. St. Rep. 525, 60 N.W. 440; Sang Lung v. Jackson, 85 F. 502; Los Angeles Co. v. Spencer, 126 Cal. 670, 77 Am. St. Rep. 217; 59 P. 202; Martin v. Witherspoon, 135 Mass. 175; United States v. Ormsbee, 74 F. 207.) The act provided that when the governor had reason to believe that scab had become epidemic he must issue his proclamation. The law did not specify on what he must base his belief nor in what words he should issue his proclamation. Findings of fact and conclusions of law are not necessary preliminaries to a proclamation; it would be valid without any recital of reasons whatever. (Wolsey v. Chapman, 101 U.S. 755.) The act in question is a reasonable quarantine regulation. (Railroad Co. v. Husen, 95 U.S. 465; Patterson v. Kentucky, 97 U.S. 501; Louisville etc. R. R. Co. v. Kentucky, 161 U.S. 699, 16 S.Ct. 714.) It is customary in statutes of this kind to provide for a quarantine against infected localities. (U.S. Supp. Rev. Stats., 2d ed., p. 794; Mont. Pol. Code, secs. 3008, 3035; Wyo. Laws 1899, secs. 2081, 2082; Act of Congress, Feb. 15, 1893; Cal. Pol. Code, sec. 3017.) A Michigan statute containing such a provision has been upheld. (Hurst v. Warner, 102 Mich. 238, 47 Am. St. Rep. 525, 60 N.W. 440; Minneapolis etc. Ry. v. Milner, 57 F. 276; St. Louis etc. Ry. v. Smith, 20 Tex. Civ. App. 451, 49 S.W. 627; Compagnie Francaise de Nav. v. State Board, 51 La. An. 645, 72 Am. St. Rep. 458, 25 So. 591; Lynch v. Grayson, 5 N. M. 487, 25 P. 992. Affirmed in 163 U.S. 468, 16 S.Ct. 1064; Croff v. Cresse, 7 Okla. 408, 54 P. 558; Train v. Boston Disinfecting Co., 144 Mass. 523, 59 Am. Rep. 113, 11 N.E. 929.) Whether a regulation of this kind is reasonable must depend largely on the nature of the disease to be prevented. As to the disease and its character we refer to Bulletin 21, United States Department of Agriculture, and the Rules and Regulations of the Bureau of Animal Industry. (Rules and Regulations Bureau Animal Industry, p. 26; Kimmish v. Ball, 129 U.S. 217, 9 S.Ct. 277; Missouri etc. Ry. Co. v. Haber, 169 U.S. 613, 18 S.Ct. 488.)

HUSTON, C. J. Quarles and Sullivan, JJ., concur.

OPINION

HUSTON, C. J.

The appellant was convicted of a violation of the provisions of an act of the legislature of Idaho and the proclamation of the governor issued under and in obedience to the command of said statutes, from which judgment this appeal is taken. The said act is as follows:

"Section 1. Whenever the governor of the state of Idaho has reason to believe that scab or any other infectious disease of sheep has become epidemic in certain localities in any other state or territory, or that conditions exist that render sheep likely to convey disease, he must thereupon, by proclamation, designate such localities and prohibit the importation from them of any sheep into the state, except under such restrictions as, after consultation with the state sheep inspector, he may deem proper. Any person or corporation who, after publication of such proclamation, receives in charge any such sheep from any of the prohibited districts, and transports, conveys or drives the same to and within the limits of any of the counties of this state, is punishable by a fine not exceeding $ 1,000 nor less than $ 200, and is liable for all damages that may be sustained by any person by reason of the importation or transportation of such prohibited sheep.

"Sec. 2. Upon issuing such proclamation, the owners or persons in charge of any sheep being shipped into Idaho against which quarantine has been declared, must forthwith notify the deputy inspector of the county into which such sheep first come, of such arrival, and such owner or persons in charge must not allow any sheep so quarantined to pass over or upon any public highway, or upon the ranges occupied by other sheep, or within five miles of any corral in which sheep are usually corralled until such sheep have first been inspected, and any person failing to comply with the provisions of this section is punishable as provided in section one of this act and is liable for all damages sustained by any person by reason of the failure to comply with the provisions of this section."

On the twelfth day of April, 1899, the governor of Idaho in compliance with the provisions of said act, issued the following proclamation:

"State of Idaho Executive Office.

"Whereas, I have received statements from reliable wool-growers and stock raisers of the state of Idaho said statements being supplemented by affidavits of reputable persons, all to the effect that the disease known as 'scab' or 'scabbies' is epidemic among sheep in certain localities or districts, viz., in the county of Cache, state of Utah, the county of Box Elder, state of Utah, and the county of Elko, in the state of Nevada; and whereas, it is known that sheep from said districts are annually moved, driven, or imported into the state of Idaho and, if so moved, would thereby spread infection and disease on the ranges and among the sheep of this state, which act would result in great disaster: Now, therefore, I, Frank Steuenberg, governor of the state of Idaho by virtue of authority in me vested, and after due consultation with the state sheep inspector, do hereby prohibit the importation, driving, or moving into the state of Idaho of all sheep now being held, herded, or ranged within said infected district, viz., the county of Cache, in the state of Utah, the county of Box Elder, in the state of Utah, and the county of Elko, in the state of Nevada, or which may hereafter be held, herded, or ranged within said infected districts, for a period of sixty days from and after the date of this proclamation. After the termination of said sixty days, sheep can be moved into this state only upon compliance with all laws of the state of Idaho regarding the inspection and dipping of sheep. In witness whereof, I have hereunto set my hand, and caused to be affixed the great seal of the state. Done at Boise, the capital, this 12th day of April, in the year of our Lord one thousand eight hundred and ninety-nine.

"FRANK STEUENBERG. [Seal]

"By the governor:

"M. PATRIE,

"Secretary of State."

While there are some sixteen assignments of error in this case, it is conceded by counsel for appellant that the important question involved is the constitutionality of the act of the legislature of Idaho under which the conviction was had. It is claimed that this case comes within the reasoning of this court in the case of State v. Duckworth. 5 Idaho 642, 51 P. 456, 39 L. R. A. 365. In that case the defendant was convicted of a violation of an act of the legislature of Idaho passed in 1895,...