Mintz v. Baldwin

2 F. Supp. 700, 1933 U.S. Dist. LEXIS 1797

• Court: District Court, N.D. New York
• Decided: February 15, 1933
• Status: Published

Opinions

AUGUSTUS N. HAND, Circuit Judge

(after stating the facts as above).

The plaintiffs insist that the order of the New York Commissioner of Agriculture and Markets is invalid because it involves a regulation of slfipments in interstate commerce in a field which Congress has already occupied. The legislation which they regard as occupying the field comprises the act of February 2, 1903 (21 U. S. Code, §§ 120, 121 and 122 [21 USCA §§ 120-122]) and the Act of March 3,1905 (21 U. S. Code §§ 123, 124, 125 and 126 [21 USCA §§ 123-126]).

Section 1 of the act of 1903 (21 USCA § 120) authorizes and directs the Secretary of Agriculture to establish such rules and regulations as he may deem necessary concerning the exportation and transportation of live stock “from any place within the United States, where he may have reason to believe” “dangerous, contagious, infectious, and communicable diseases in cattle and other livestock” exist. The same section of the act (21 USCA § 121) further provides that whenever an inspector of the Bureau of Animal Industry shall issue a certificate showing that he has inspected any cattle about to be shipped and has found them free from communicable disease they may be shipped “from such place into and through any State * * * without further inspection or the exaction of fees of any kind, except such as may at any time be ordered or exacted by the Secretary of Agriculture. * * * ”

Section 1 of the act of March 3, 1905 (21 USCA § 123), authorizes and directs the Secretary of Agriculture to quarantine any state or portion thereof “when he shall determine the fact that cattle or other livestock” therein “are affected with any contagious, infectious, or communicable disease. * * * ” The succeeding sections (21 USCA § 124 et seq.) provide that the Secretary shall make regulations for the inspection and shipment of cattle from the quarantined areas and that cattle may only be transported from such areas under conditions prescribed by the Secretary.

The act of 1905 can hardly have any bearing on the present situation. It is a quarantine act and the sections are so entitled. Speaking of this act, it was said by Judge Grubb that: “Congress legislated, having in view the probable occurrence of epidemics of varying seriousness and intensity.” United States v. Louisville & N. R. Co. (D. C.) 176 F. 942, 947. It in toms only relates to cases where ail area is quarantined after the Secretary of Agriculture has determined that cattle therein are affected with a contagious disease. Such determination is a condition precedent to the operation by the establishment of a quarantine. Whipp v. United States (C. C. A.) 47 F.(2d) 496. There was no such determination here, -nor has any basis for such a determination been shown in tlie states from which the cattle were shipped.

Both the act of 1903 and the act of 1905 were before the Supremo Court in Asbell v. Kansas, 209 U. S. 251, 28 S. Ct. 485, 52 L. Ed. 778, 14 Ann. Cas. 1101. There a statute of the state of Kansas made it a misdemeanor for any person to transport ea.tüo into the state from the south without having them inspected and passed as healthy by the proper state officials or by the Bureau of Animal Industry of the United States. Asbell was convicted under the state statute. Justice Moody, who wrote the opinion, said that: “The only Federal question * * '' is whether the statute was a restriction of interstate commerce which was not within the power of a state to impose.” It was held that the state might “enact laws for the inspection of animals coming from other stales with the purpose of excluding those which are diseased and admitting those which are healthy” and the conviction was sustained. Justice Moody referred to the two acts of Congress we have mentioned and remarked that the only provision relevant to: the issues before the court was the one of the act of 1903 that where a federal inspector had issued a certificate of freedom from, communicable disease, cattle might be transported in interstate commerce without further inspection and that since the Kansas statute recognized this there was no conflict between the act of Congress and the state statute. A departmental regulation brought to the attention of the court was hold to have no bearing because it related only to transportation from quarantined states, and no* quarantine was there involved. In this decision we have a dear ruling that the states may pass inspection laws affecting the importation of cattle, at least where the Department of Agriculture has not acted in the matter.

But it is said that Asbell v. Kansas, supra,, is in effect overruled by Oregon-Washington R. & N. Co. v. Washington, 270 U. S. 87, 46 S. Ct. 279, 70 L. Ed. 482, and such was the holding of a three judge court in Must Hatch Incubator Co. v. Patterson (D. C.) 27 F.(2d) 447. The Oreg-on-Washington Case involved a federal quarantine act against farm produce likely to convey injurious insects from infested localities. The decision in Asbell v. Kansas, supra, was not discussed. A majority of the court hold that the federal act was so broadly drawn as to show an intention of Congress to occupy the field and to inhibit state quarantine legislation. The provisions of the federal plant quarantine act are not unlike those of the cattle quarantine act of 1905, and, if a state quarantine statute were involved here, we might feel that the decision in the Oregon-Washington Case was controlling. The Missouri Court of Appeals has held that state laws providing for interstate quarantine of cattle were superseded by the act of 1905. State v. Chicago, M. & St. P. R. R., 200 Mo. App. 109, 206 S. W. 419 (1918). But the contrary has generally been held. Ex parte Goddard, 44 Nev. 128, 190 P. 916; Pecos & N. T. R. Co. v. Hall (Tex. Com. App.) 223 S. W. 170; St. Lonis, I. M. & S. R. Co, v. Campbell, 116 Ark. 119, 172 S. W. 823; State v. Mo. Pac. R. Co., 71 Kan. 613, 81 P. 212. The Supreme Court of Colorado apparently does not regard the Oregon-Washington Case as controlling where state quarantine acts for cattle are involved. People v. Morgan, 79 Colo. 504, 246 P. 1024, 1026.

But we are not called upon to determine the validity of such state quarantine laws. Quarantine legislation relates normally to infestations in the nature of epidemics in specific areas and differs radically in governmental scope and practical operation from day to day inspection of cattle transported in interstate commerce under ordinary conditions. It is notie'eable that in Asbell v. Kansas, supra, the federal quarantine act of 1905 was treated as totally irrelevant to the question of the power of the state of Kansas to enforce its inspection laws, which were held not to conflict with the inspection provisions of the act of 1903.

State inspection laws to prevent importation of diseased cattle have a long background of administrative and legislative approval and the intent “to override existing state authority to deal with local exigencies is not to be imputed to the Congress unless its enactment compels that conclusion. * * * ” Atchison, T. & S. F. R. Co. v. Railroad Comm., 283 U. S. 380, 51 S. Ct. 553, 556, 75 L. Ed. 1128; Savage v. Jones, 225 U. S. 501, 32 S. Ct. 715, 56 L. Ed. 1182; Missouri, K. & T. R. Co. v. Haber, 169 U. S. 613, 18 S. Ct. 488, 42 L. Ed. 878. The act of 1903 manifests no such intent. It is not an act of general operation. The Secretary of Agriculture is only empowered by the act of 1903 to apply regulations to areas where he has “reason to believe” contagious disease exists. It is only when cattle are about to be transported out of such areas that inspectors of the Bureau of Animal Industry are authorized to issue certificates. United States v. Johnson (D. C.) 35 F.(2d) 256. Moreover, the language of section 1 affirmatively implies that the continued operation of state inspection laws is contemplated, for it provides that cattle certified as free from disease by federal inspectors may be transported in interstate commerce “without further inspection or the exaction of fees of any kind, except such as may at any time be ordered or exacted by the Secretary of Agriculture; and all such animals shall at all times be under the control and supervision of the Bureau of Animal Industry * * * for the purposes of such inspection.” Since such animals continue to be subject to federal inspection, the “further inspection” to which they are not thereafter subject must, it would seem, be state inspection. Why should state inspection laws be nullified where federal certificates have been issued unless their continued vigor in the absence of such certificates is contemplated? Why should cattle which are shipped out of areas where the Secretary of Agriculture has “reason to believe” disease exists be expressly subjected to federal supervision unless it was intended that cattle transported under other circumstances from other areas should continue to be subject to state inspection laws? This aspect of the act of 1903 has not passed unnoticed heretofore. See United States v. Hoover (D. C.) 133 F. 950, 952; Robinson & Reynolds v. Atlantic Coast Line R. Co., 28 Ga. App. 484, 112 S. E. 389, 391.

The Secretary of Agriculture has failed and indeed declined to establish a system of interstate inspection. Meanwhile the states have built up departments to do this work and to g^iard the live stock within their borders against infection from imported diseased cattle. No attempt has been made by the federal government to cheek administration by the states, which has now become general. On the contrary, such inspection has been welcomed by the Department of Agriculture and relied on as a safeguard to interstate commerce. In such circumstances it is against all reason to suppose that the states lack the power to protect themselves against manifest and serious dangers in the only available way. The decision in Asbell v. Kansas is a clear sanction of state inspection laws.

We conclude from the scope and language of the statute that, fairly interpreted, it is not in conflict with the order promulgated by the defendant, and that, therefore, the intent to supersede the state’s exercise of its police power is not to be implied. Carey v. South Dakota, 260 U. S. 118, 39 S. Ct. 403, 63 L. Ed. 886. Congress has circumscribed its regulation and occupied a limited field. Atchison, T. & S. F. R. Co. v. Railroad Comm, of California, 283 U. S. 380, 391, 392, 51 S. Ct. 553, 75 L. Ed. 1128.

The contention that the defendant’s order directly burdens interstate commerce is without merit. The validity of reasonable state inspection laws has always been recognized. Reid v. Colorado, 187 U. S. 137, 23 , 47 L. Ed. 108; Asbell v. Kansas, 209 U. S. 251, 28 S. Ct, 485, 52 L. Ed. 778, 34 Ann. Cas. 1103. The order involves no categorical prohibition of all importation of cattle such as was involved in Hannibal & St. J. Railroad Company v. Husen, 95 U. S. 465, 24 L. Ed. 527. Plaintiffs have not shown that the defendant’s order in any way discriminates against cattlemen outside New York. Cattle are only excluded which are diseased or have been exposed to disease and cattle may lawfully be excluded that have been so exposed. Smith v. St. Louis & Southwestern R. Co., 181 U. S. 248, 21 S. Ct. 603, 45 L. Ed. 847. Cattle within New York are subject to regulation and quarantine. Section 76 of the New York Agriculture and Markets Law. People v. Teuscher, 248 N. Y. 454, 162 N. E. 484. The New York regulation applies to citizens of New York importing’ cattle as well as to those of other slates. Reid v. Colorado, 187 U. S. at page 152, 23 S. Ct. 92, 47 L. Ed. 108. There is not the slightest indication in the Supreme Court decisions that a state must have the same regulations for inspection of diseased cattle within its borders as it requires for those entering it. Rasmussen v. Idaho, 181 U. S. 198, 21 S. Ct. 594, 45 L. Ed. 820; Smith v. St. Louis & Southwestern R. Co., 181 U. S. 248, 21 S. Ct. 603, 45 L. Ed. 847; Reid v. Colorado, 187 U. S. 151, 23 S. Ct. 92, 47 L. Ed. 108.

It may he argued that the commissioner’s order is invalid because it would subject to inspection cattle that have been certified as free from disease by inspectors of the United States Bureau of Animal Industry. The order does not expressly refer to cattle thus certified but it is drawn in general terms and contains no exception in their favor. If applied to such cattle, it would doubtless be unconstitutional. Robinson & Reynolds v. Atlantic Coast Line R. Co., 28 Ga. App. 484, 112 S. E. 389. But it should not be construed as applying to them, for it must be read in subordination to section 74 (3) (4) of the New York Agriculture and Markets Law which provides for admission of any cattle accompanied by certificates issued by the United States Bureau of Animal Industry. Even if the order be construed as excluding cattle with certificates from this Bureau it would not be wholly void. It is well settled that a statute may he constitutional as applied to one set of facts and unconstitutional as applied to another. Dahnke-Walker Milling Co. v. Bondurant, 257 U. S. 289, 42 S. Ct. 106, 66 L. Ed. 239; Kansas City Southern R. Co. v. Anderson, 233 U. S. 325, 34 S. Ct. 599, 58 L. Ed. 983. And this is so, not only when the unconstitutional operation of the statute is tho result of a distinct and grammatically separable provision, but also when it is the result of general prohibitory language contained in a single clause, provided tho intent of the Legislature will not be violated by allowing the statute to operate in a limited field. W. J. Sloane v. Commonwealth, 253 Mass. 529; 149 N. E. 407; Joel v. Bennett, 276 Ill. 537, 115 N. E. 5; State v. Sheldon, 29 Wyo. 233, 213 P. 92, As Justice Brewer remarked in McCullough v. Virginia, 172 U. S. at page 112, 19 S. Ct. 134, 138, 43 L. Ed. 382: “However broad and general its [the statute’s] language; it cannot be interpreted as extending beyond those matters which it was within the constitutional power of the legislature to reach.”

Whether a state statute which is unconstitutional as applied to one situation is capable of a construction that will give it a .restricted and constitutional ojreration as to other situations is a matter upon which the state courts may speak authoritatively. Smiley v. Kansas, 196 U. S. 447, 25 S. Ct. 289, 49 L. Ed. 546, The New York courts would evidently give effect to the Commissioner’s order if limited in its scope to cattle upon which it may constitutionally operate. Robert Dollar Co. v. Canadian Car & Foundry Co., 220 N. Y. at page 278, 115 N. E. 711. To enforce the order within constitutional limits will in no way violate tho intent with which it was promulgated. Though it could not constitutionally operate upon cattle certified by federal inspectors, the plaintiff has presented no certificates from them and, therefore, has not brought himself within the class of persons on whom it could not constitutionally operate. Ho cannot be heard to complain that tho order is unconstitutional as applied to others. Smiley v. Kansas, 196 U. S. 447, at page 457, 25 S. Ct. 289, 49 L. Ed. 546; Robert Dollar Co. v. Canadian Car & Foundry Co., 220 N. Y. 270, 115 N. E. 711.

Tho motion for a preliminary injunction should be denied and the bill of complaint dismissed for the reason that the order of tho Commissioner of Agriculture and Markets appears to have been validly issued pursuant to sections 72 and 74 of the Agriculture and Markets Law of the state of New York under a valid exercise of the police power of that state. The temporary restraining order granted to the plaintiff should likewise be vacated.

BRYANT, District Judge_ concurs.