United States v. Johnson

• Decision Date: 19 October 1929
• Docket Number: No. 7105.,7105.
• Citation: 35 F.2d 256
• Parties: UNITED STATES v. JOHNSON.
• Court: U.S. District Court — District of Nevada

35 F.2d 256 (1929)

UNITED STATES v. JOHNSON.

No. 7105.

District Court, D. Nevada.

October 19, 1929.

H. H. Atkinson, U. S. Atty., and Geo. A. Whiteley, Asst. U. S. Atty., both of Reno, Nev., and Geo. A. Montrose, Asst. U. S. Atty., of Gardnerville, Nev.

William M. Kearney, of Reno, Nev., for defendant.

NORCROSS, District Judge.

Defendant's demurrer presents the question whether a certain regulation of the Secretary of Agriculture, alleged to have been violated, was within powers conferred by Congress.

The information charges that the defendant on September 23, 1925, "unlawfully did knowingly drive a number of cattle, to wit, thirteen cows, on foot from Eldorado County, in the State of California, into Douglas County in the State and District of Nevada, * * * without the said cattle having been subjected to a tuberculin test * * * contrary to the form of the statute," etc.

The information further recites that "on February 25, 1925, the Secretary of Agriculture, pursuant to the provisions of the Act of Congress approved February 2, 1903 (32 Stat. 791 21 USCA §§ 111, 120-122), did make and duly promulgate a certain regulation, to wit, Regulation 7, * * * which said regulation is contained in B. A. I. Order No. 292 of the Bureau of Animal Industry of the United States Department of Agriculture, * * * the text of which said regulation * * * in substance provides," etc.

The precise language of so much of paragraph 1 of section 1 of said Regulation 7 as is deemed essential for a determination of the question presented upon the demurrer reads: "No cattle shall be shipped, driven on foot, transported, or received for transportation interstate unless and until such cattle have been subjected to a physical examination and tuberculin test, applied as directed in paragraph 2 of this section, and a tuberculin-test chart and health certificate, showing them to be apparently free from tuberculosis and any other contagious, infectious, or communicable disease of animals, has been issued."

The authority, if any exists, for the making and promulgation of said Regulation 7 is to be found in that certain act of Congress, approved February 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," the material portion of which reads:

"That in order to enable the Secretary of Agriculture to effectually suppress and extirpate * * * contagious, infectious, and communicable diseases in cattle, * * * and to prevent the spread of such diseases, the powers conferred * * * by sections four and five of an Act entitled `An Act for the establishment of a Bureau of Animal Industry, * * * approved May twenty-ninth, eighteen hundred and eighty four, * * * are hereby conferred on the Secretary of Agriculture, to be exercised exclusively by him. He is hereby authorized and directed, from time to time, to establish such rules and regulations concerning the exportation and transportation of live stock from any place within the United States where he may have reason to believe such diseases may exist into and through any State or Territory, * * * as he may deem necessary, and all such rules and regulations shall have the force of law. Whenever any inspector * * * shall issue a certificate showing that such officer had inspected any cattle or other live stock which were about to be shipped, driven, or transported from such locality to another, as above stated, and had found them free from * * * disease, such animals, so inspected and certified, may be shipped, driven, or transported from such place into and through any State or Territory. * * *

"Sec. 2. That the Secretary of Agriculture shall have authority to make such regulations and take such measures as he may deem proper to prevent the introduction or dissemination of the contagion of any contagious, infectious, or communicable disease of animals * * * from one State or Territory of the United States * * * to another, and to seize, quarantine, and dispose of any hay, straw, forage, or similar material, or any meats, hides, or other animal products coming from an infected foreign country to the United States, or from one State * * * in transit to another State * * * whenever in his judgment such action is advisable in order to guard against the introduction or spread of such contagion.

"Sec. 3. That any person, company, or corporation knowingly violating the provisions of this Act or the orders or regulations made in pursuance thereof shall be guilty of a misdemeanor. * * *" (21 USCA §§ 111, 120-122.)

It is quite clear from the provisions of section 1 that Congress intended to invest the Secretary of Agriculture with power to make rules and regulations concerning transportation of live stock from "any place within the United States where he may have reason to believe such diseases may exist," but it is also quite clear that the rules and regulations authorized by this section were not intended to be of general application.

By the Act of February 2, 1903, the powers of the Secretary of Agriculture respecting the establishment of quarantine areas were not well defined. It would appear from section 1 of the act (21 USCA §§ 120, 121) that he might in effect establish a quarantine, although that word is not expressly used in the section. The word "quarantine" is expressly used in section 2 of the act (21 USCA § 111), but it would there appear to be limited to animal foods or products "coming from an infected foreign country * * * or from one State * * * in transit to another." As the word "infected" is used in the section, we think it should be construed to apply to the word "State" as well as the words "foreign country."

The Act of May 29, 1884 (23 Stat. 31), "For the establishment of a Bureau of Animal Industry," etc., made provisions for the expenditure of certain moneys for "quarantine measures" and other purposes having to do with the extinction of communicable diseases among domestic animals; but the language of the statute would appear to limit such expenditures to such states where the state authorities "signify their readiness to cooperate." Section 3 (21 USCA § 114).

It was not until the Act of Congress of March 3, 1905 (33 Stat. 1264), "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," that the Secretary of Agriculture was given specific power "to quarantine any State, * * * or any portion of any State * * * when he shall determine the fact that cattle or other live stock in such State * * * are affected with any contagious, infectious, or communicable disease." Section 1 (21 USCA § 123).

By section 2 of the last-mentioned act (21 USCA § 124) it is, among other things, provided: "Nor shall any person * * * drive on foot, or cause to be driven on foot, or transport in private conveyance * * * from a quarantined State * * * into any other State * * * any cattle or other live stock, except as hereinafter provided." A violation of the provisions of the section was made a misdemeanor.

By the provisions of section 6 of the Act of May 29, 1884 (21 USCA § 115), creating the Bureau of Animal Industry, it was made unlawful for any person to "drive on foot or transport in private conveyance from one State or Territory to another * * * any live stock, knowing them to be affected with any contagious, infectious, or communicable disease." U. S. v. Slater (D. C.) 123 F. 115.

A reading of the several acts of Congress referred to discloses that Congress has specifically made the driving of cattle on foot from one state to another an offense in the case of either of two contingencies — where they are so driven "knowing them to be affected," or where they are so driven without permit from a "quarantined State" or from "the quarantined portion of any State."

Congress, having control of interstate commerce, doubtless has power to prescribe by statute that cattle or other domestic animals may not be transported or driven on foot from one state to another without prior...