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had knowledge of the pendency of the suit or appeared in it, bring her within the terms of the undertaking. That is precisely the measure of protection which the law ought to give, and by the statute does give, to one agairst whom, without notice and hearing, an order of this kind is made.
The appellants alleged various exceptions to the auditor's report, which are directed to the findings of facts, upon which the liability was based and of the amount of damages, and here, apparently, argue those exceptions on the theory that this court is at liberty to consider the evidence de novo, weigh and balance it, and draw such inferences and conclusions as seem proper. But this theory overlooks the proper function of an auditor, which was correctly appreciated by the court below. The findings should not be set aside unless it is shown that there has been an error in law or a conclusion of fact unwarranted by the evidence. It is enough to say that there was evidence which supported the findings of fact of the auditor and his assessment of damages. Nor does it appear that the auditor committed any error of law. His report shows the following facts, briefly stated: It was the habit of Mrs. Munn to occupy her house during the late autumn, the winter and the early spring, and to live elsewhere during the remainder of the year. This was the common season of occupancy in Washington of houses of this character. She intended to occupy her house during the season of 1902 and 1903, but was prevented from doing so by the wrongful use of the restraining order. The addition which, if the work had not been stopped, would have been completed by November 1, was not completed until April, and could not have been completed, if reasonable speed had been used, before March. In the meantime the house, some of whose exterior walls had been removed, was practically uninhabitable. Shelter could doubtless have been found in some of the rooms which could have been closed and warmed. But the owner was entitled to a house which could be occupied as a whole and was available for use as a home for herself and her family. This was denied to her by the defendants' wrongful act. We
Argument for Plaintiff in Error.
think that the auditor correctly adopted as the measure of damages the value of the use of the property for the period and season during which she was thus deprived of it as the direct result of the restraining order which, in another proceeding, has been found to have been wrongfully and inequitably sued out. The decree of the court below is
ASBELL V. STATE OF KANSAS.“
ERROR TO THE SUPREME COURT OF THE STATE OF KANSAS.
No. 166. Submitted March 6, 1908.-Decided March 23, 1908.
While the State may not legislate for the direct control of interstate com
merce, a proper police regulation which does not conflict with congressional legislation on the subject involved is not necessarily unconstitu
tional because it may have an indirect effect upon interstate commerce. Until Congress acts on the subject a State may, in the exercise of its police
power, enact laws for the inspection of cattle coming from other States.
Reid v. Colorado, 187 U. S. 137. Congress has not enacted any legislation destroying the right of a State to
provide for the inspection of cattle and prohibiting the bringing within its borders of diseased cattle not inspected and passed as healthy either
by the proper state or national officials. A State may not under pretense of protecting the public health exclude the
products or merchandise of other States, and this court will determine for itself whether it is a genuine exercise of the police power or really and
substantially a regulation of interstate Section 27 of Chap. 495 of the laws of Kansas of 1905, prohibiting the trans
portation of cattle from any point south of the State into the State except for immediate slaughter which have not been passed as healthy by the proper state officials or by the National Bureau of Animal Industry is a proper police regulation within the power of the State, is not in conflict with the act of February 2, 1903, 32 Stat. 791, or the act of March 3, 1905, 33 Stat. 1204, in regard to inspection of cattle, and is not unconstitu
tional as a direct regulation of interstate commerce. 60 Kansas, 51, affirmed.
The facts are stated in the opinion.
Mr. Archie D. Neale and Mr. Nelson Case for plaintiff in error: A statute which prohibits the bringing of cattle into the State
Argument for Plaintiff in Error.
without having them first inspected, regardless of whether such cattle are infected or are perfectly healthy, is not a proper exercise of the police power.
This statute not only interferes with interstate commerce, but also conflicts with the United States statute and the rules and regulations of the Department of Agriculture. In cases of this kind where Congress has legislated on the subject such legislation is exclusive on that subject.
The Secretary of Agriculture has the power and authority, under the Federal statute, to promulgate rules and regulations for the transportation of cattle, and he does so, but the State of Kansas steps in and nullifies his orders by the passage of the statute under consideration, or rather attempts to do so. A statute attempting such a thing is unconstitutional and void.
Commodities which may lawfully become the subject of purchase, sale or exchange are articles of interstate commerce, within the protection of the commerce clause of the Constitution. Leisy v. Hardin, 135 U. S. 100; Schollenberger v. Pennsylvania, 171 U. S. 1, In re Ware, 53 Fed. Rep. 783; Donald v. Scott, 74 Fed. Rep. 859; Sawrie v. Tennessee, S2 Fed. Rep. 615; In re Schietlin, 94 Fed. Rep. 272; Bennett v. American Erpress Co., 83 Maine, 236; Ballock v. State, 73 Maryland, 1; S. C., 23 Am. St. Rep. 559.
A State has not the power to prevent the importation of lawful subjects of commerce. Cases supra and Lyng v. Michigan, 135 U. S. 161; Hannibal &c. Ry. Co. v. Husen, 95 U. S. 465; Bowman v. Chicago &c. Ry. Co., 125 U. S. 489.
In this case defendant brought the cattle in question from the Indian Territory (now Oklahoma) into Kansas and proceeded with them to the railroad and shipped them to Missouri. He was engaged in interstate commerce, and was in possession of a lawful subject of interstate commerce. State v. Duckworth, 51 Pac. Rep. (Idaho) 456.
If the animals with which defendant was charged with bringing into the State were not diseased, they were lawful subjects of commerce. It was not charged that they were diseased; the
trial court charged the jury that it made no difference whether they were or were not diseased, and the Supreme Court of Kansas agreed with the trial court. Whether an article is or is not a subject of lawful interstate commerce depends upon the intrinsic state or condition of the article, and not upon a mere declaration of a state legislature. In re Rahrer, 140 U. S. 545.
This statute being a regulation of commerce under the guise of an inspection law, cannot be upheld, but must be condemned. State of Minnesota v. Barber, 136 U.S. 313; Brimmer v. Rebman, 138 U. S. 78; Gulf.C.&. S. F. Ry. Co. v. Hefley & Lewis, 158 U. S. 99, 105.
Mr. E. L. Burton, Mr. C. E. Pile and Mr. W. B. Glasse for defendant in error:
The regulation of the rights and duties of all persons within the jurisdiction of a State belongs primarily to such State under its reserved power to guard the safety of persons and property within its borders, and even where the subject of such regulations is one over which Congress exercisos exclusive control, any action of the State upon the subject which is not a direct interference with rights secured by the Constitution of the United States or by some valid act of Congress must be respected until Congress intervencs. Patapsco Guano Co. v. Board of Agriculture of North Carolina, 171 U.S. 345; Minnesota v. Barber, 136 U.S. 313; M., K. & T. Ry. Co.v. Haber, 169 U.S. 613; Morgan's La. & Teras R. R. Co. v. Bd. of Health of La., 118 U. S. 455, and cases cited. See also Patterson v. Kentucky, 97 U.S. 501; Kammish v. Ball, 129 U.S. 217, and cases cited.
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 Burcau of Animal Industry of the Interior Department of the United States. Sec. 27, ch. 495, Session Laws of 1905. 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 discased 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 v. Wharton, 207 U.S. 328, 334.
But though it may not legislate for the direct control of interstate commerce, the State may exercise any part of the legis