United States v. Slater

• Decision Date: 23 March 1903
• Docket Number: 997,998.
• Parties: UNITED STATES v. SLATER. SAME v. FRANDSEN.
• Court: U.S. District Court — District of Nevada

123 F. 115

UNITED STATES v. SLATER.

SAME v. FRANDSEN.

Nos. 997, 998.

United States District Court, D. Nevada.

March 23, 1903

Sardis Summerfield, U.S. Atty.

Norcross & Orr and Trenmor Coffin, for defendants.

HAWLEY District Judge.

These cases are substantially alike, and are presented upon informations filed by the United States attorney by leave of the court. The information in each case contains two counts. In the first of these cases the first count charged that 'U. M. Slater on or about the 4th day of September, A.D 1902, at Washoe county, Nevada then and there being an owner of about twenty-five hundred sheep, did unlawfully drive on foot said sheep from the state of California into the state of Nevada while at the said time and place said sheep to the knowledge of the said U. M. Slater were affected with a certain contagious disease, to wit, scabies, commonly known as and called 'sheep 'scab', contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the United States of America. ' The second count, as to the acts charged, is identically the same as in the first count, with the addition that said acts were committed 'contrary to the form of the statute, and to the rules and regulations of the Secretary of Agriculture and of the Commissioner of Agriculture, made, certified, and published, in pursuance thereof made and provided, and against the peace and dignity of the United States of America. ' The information against Frandsen is the same except it charges, in addition to his being an owner, that he was 'custodian of and having control over the sheep.'

Demurrers are interposed to these informations upon the grounds (1) that said first count does not state facts sufficient to constitute a public offense; that it does not appear that the state of California was an infected district or a district infected with 'scabies' or 'sheep scab,' or that the Secretary of Agriculture or the Commissioner of Agriculture had ever determined the state of California to be an infected district, or had made any order or rules or regulations or given or published any notice in relation thereto; (2) that the facts stated in said second count do not constitute a public offense; that it does not appear what rules or regulations were ever made by the Secretary of Agriculture, or by the Commissioner of Agriculture, or that said Secretary or said Commissioner of Agriculture ever made any order, rule, or regulation concerning the disease known as 'scabies,' commonly called 'sheep scab,' or ever gave or published any notice concerning the same in the state of California.

The questions to be determined depend upon the interpretation to be given to the act of Congress entitled 'an act for the establishment of a Bureau of Animal Industry, to prevent the exportation of diseased cattle, and to provide means for the suppression and extirpation of pleuro-pneumonia and other contagious diseases among domestic animals,' approved May 29, 1884, 23 Stat. 31 (U.S.Comp.St. 1901, p. 299). This act consists of 11 sections. The entire act will, of course, be considered, but it is only necessary to call special attention to sections 6 and 7 (U.S.Comp.St. 1901, p. 3184), which read as follows:

'Sec. 6. That no railroad company within the United States, or the owners or masters of any steam or sailing or other vessel or boat, shall receive for transportation or transport, from one state or territory to another, or from any state into the District of Columbia, or from the District into any state, any live stock affected with any contagious, infectious, or communicable disease, and especially the disease known as pleuro-pneumonia; nor shall any person, company, or corporation deliver for such transportation to any railroad company, or master or owner of any boat or vessel, any live stock, knowing them to be affected with any contagious, infectious, or communicable disease; nor shall any person, company, or corporation drive on foot or transport in private conveyance from one state or territory to another, or from any state into the District of Columbia, or from the District into any state, any communicable disease, and especially the disease known as pleuro-pneumonia.

'Sec. 7. That it shall be the duty of the Commissioner of Agriculture to notify, in writing, the proper officials or agents of any railroad, steamboat, or other transportation company doing business in or through any infected locality, and by publication in such newspapers as he may select, of the existence of said contagion; and any person or persons operating any such railroad, or master or owner of any boat or vessel, or owner or custodian of or person having control over such cattle or other live stock within such infected district, who shall knowingly violate the provisions of section six of this act, shall be guilty of a misdemeanor, and, upon conviction, shall be punished by a fine of not less than one hundred nor more than five thousand dollars, or by imprisonment for not more than one year, or by both such fine and imprisonment.'

It is proper here to state that by the act approved February 9, 1889, 25 Stat. 659 (U.S.Comp.St. 1901, p. 185), the Department of Agriculture was made an executive department, and that by the act of March 2, 1889, 25 Stat. 835, 840, the authority granted to the Commissioner of Agriculture by the act under discussion establishing the Bureau of Animal Industry, and by the provision of the appropriation act for the Agricultural Department approved July 18, 1888, relating to that bureau, was vested in the Secretary of Agriculture.

There are numerous points urged by defendants in support of their demurrer, some of which, if sustained, are vital, and would prevent any further prosecution of these cases. There are other points, especially in relation to the second count, which only attack the sufficiency of the facts stated in the informations. The questions involved have been ably argued, and many of the points urged by the respective counsel demand careful consideration. The researches of counsel have failed to find any case upon the same or similar state of facts. The court must therefore proceed without the aid or assistance of any precedent, without any direct beacon light to guide it, save and except the language of the act itself, and such indicia as may be gleaned from the decided cases in relation to the general subject, and the aid derived from the established canons of construction, involving the interpretation of all statutes.

Looking first at the act itself, it will be found that Congress, by its passage, had in view the necessity of taking some means to protect the interests of persons engaged in raising live stock, to promote and develop the live stock industry, and to prevent the spread of dangerous, contagious, infectious, and communicable diseases among the live stock of the country at large. The objects sought to be secured, and the business of the live stock interests sought to be protected and regulated, were of vast importance, and necessarily required legislation upon many different conditions that existed or that might arise. This general idea is made clear by an examination of the entire act, and is also embodied in the provisions of section 6, an examination of which shows that there were three distinct offenses which Congress intended to reach, and for violation of either of the provisions therein contained Congress intended the parties should be punished (1) Railroads, steamboats, or other vessels are prohibited from receiving for transportation from one state to another any live stock affected with any of the diseases mentioned in the act; (2) all persons, companies, or corporations are prohibited from delivering to any railroad company or other common carriers any live stock knowing them to be affected with either of the named diseases. Then comes the third one, for a violation of which the information in the present cases were filed: 'Nor shall any person, company, or corporation drive on foot or transport in private conveyance from one state * * * to another * * * any live stock, knowing them to be affected with any contagious, infectious, or communicable disease. ' It is contended that the defendants should be discharged because the act does not provide any penalty for the commission of the acts charged against the defendants therein; that the acts performed by them are declared to be unlawful, yet Congress either designedly, inadvertently, or by mistake overlooked the necessity of prescribing any penalty for the unlawful act. The conclusions of counsel upon this point may be conceded to be correct if the premises upon which the point is made are well founded. But is it true that no penalty is prescribed for the unlawful acts as herein charged? Section 7, imposing the penalty, expressly covers and includes the acts charged...