GILBERT, Circuit Judge,
after stating the case as above, delivered the opinion of the court.
Assuming, as we must, that all the facts pleaded in the bill of complaint are true, the question is presented whether a case is stated for equitable relief. Upon the application for a temporary restraining order in the court below, investigation was had upon affidavits and upon the oral evidence of witnesses taken in court. The court found that such evidence indicated that the sheep were not diseased, and that, according to the testimony of the chief witnesses upon both sides, sheep having the disease of scab could be so far cured as to render a. passage through the country safe from the spread of the disease by dipping them twice at intervals of io days. The court sent the chief sheep inspector of the state and the United States inspector to personally inspect the sheep. The result of their inspection was that the sheep were found practically free from disease. The court said later, in ruling upon the demurrer, “The simple facts in this case are that the sheep were not so diseased as to justify their exclusion.” But, after entertaining the motion for and granting a temporary injunction, the attention of the court was directed to the recent cases of Rasmussen v. Idaho, 181 U. S. 198, 21 Sup. Ct. 594, 45 L. Ed. 820, and Smith v. St. Louis & Southwestern Railroad Company, 181 U. S. 248, 21 Sup. Ct. 603, 45 L. Ed. 847. Upon the authority of those decisions the demurrer to the bill for want of equity was sustained, the court drawing therefrom the conclusion that when the law is upon its face one to prevent the spread of disease in a state, and is a constitutional exercise of the legislative power, the state officers may be relied upon to enforce it in good faith, and in justice to all. In other words, the conclusion reached was that state officers claiming to act under and justifying their acts by a law which is valid, are not subjéct to control or injunction by the courts. We are unable to agree with that conclusion, nor do we find support for that doctrine in either of the cases above referred to or in any decision [757] of the courts. In the Rasmussen Case the validity of the act of the Idaho Legislature of March 13, 1899 — which is the act under which the defendants justify their course in the present suit — was in question. It was held that the act is not in conflict with the Constitution of the United States. There was no suggestion in that case of unlawful action under the law. The sole question was of the legality of the act. So, in the case of Smith v. St. Louis & Southwestern Railroad Company, the court considered a similar quarantine law of Texas, which made it the duty of a live stock sanitary commission, upon receipt of “reliable information” of the existence of certain diseases among cattle, to make careful examination of animals believed to be infected with such disease, and to ascertain what, if any, disease existed; and, if the disease was found contagious or infectious, it was made the duty of the commission to direct and enforce “such quarantine lines and sanitary regulations as are necessary to prevent the spread of any such disease,” and to provide that no domestic animal infected with such disease should be permitted to enter or leave the district or grounds so quarantined, except by authority of the commissioners. It was held that this statute, as construed and applied;"was not in conflict with the Constitution of the United States. In that case, as in the Rasmussen Case, there was no question of misconduct of the commissioners, and there was no contention that their action was controlled by improper motives, or was unjustified by the facts, except that it was contended that it did not affirmatively appear that the action of the commission was taken on sufficient information. But the court held that it did not appear that it was not taken on sufficient information, and therefore applied to the case the presumption which the law attaches to the acts of public officers. The inference fairly to be drawn from thq language of the decision is that, if it had appeared that the action of the sanitary commission was taken on insufficient information, a different case would have been presented.
It is contended that the decision of the Circuit Court finds support in the case of Compagnie Francaise v. Board of Health, 186 U. S. 380, 22 Sup. Ct. 811, 46 L. Ed. 1209. But there, as in the cases above referred to, the sole question was of the validity of the quarantine law. The quarantine had been established by the State Board of Health of Louisiana, a corporation whose existence and powers were derived from the act of the Legislature of that state (section 8 of act No. 192, p. 444, of the year 1898) authorizing the State Board of Health, in its discretion, to “prohibit the introduction into any infected portion of the state persons acclimated, unacclimated, or said to be immune, when in its judgment the introduction of such persons would add to or increase the prevalence of the disease." Under this power the Board of Health excluded healthy persons from a locality infested with a contagious disease, and its power to do so was sustained by the court. No question was raised of the perversion of the law for private gain, or selfish interest, or for any improper purpose. Indeed, it is difficult to conceive how any such question could have arisen. The law did not require the Board of Health to obtain information, or to have good reason for its action, but committed the [758] whole matter to its judgment. In the exercise of its judgment, the board established the quarantine. It was not contended that its judgment was improperly influenced, or that its action was unwise. The case, as it was presented to the court, was one which involved only the power of a state to prevent citizens in good health from entering a quarantined district. The power was sustained, evidently upon the theory that the entrance of such persons added fuel to the flame, furnished new subjects for the disease, extended its ravages, and prolonged its life.
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GILBERT, Circuit Judge,
after stating the case as above, delivered the opinion of the court.
Assuming, as we must, that all the facts pleaded in the bill of complaint are true, the question is presented whether a case is stated for equitable relief. Upon the application for a temporary restraining order in the court below, investigation was had upon affidavits and upon the oral evidence of witnesses taken in court. The court found that such evidence indicated that the sheep were not diseased, and that, according to the testimony of the chief witnesses upon both sides, sheep having the disease of scab could be so far cured as to render a. passage through the country safe from the spread of the disease by dipping them twice at intervals of io days. The court sent the chief sheep inspector of the state and the United States inspector to personally inspect the sheep. The result of their inspection was that the sheep were found practically free from disease. The court said later, in ruling upon the demurrer, “The simple facts in this case are that the sheep were not so diseased as to justify their exclusion.” But, after entertaining the motion for and granting a temporary injunction, the attention of the court was directed to the recent cases of Rasmussen v. Idaho, 181 U. S. 198, 21 Sup. Ct. 594, 45 L. Ed. 820, and Smith v. St. Louis & Southwestern Railroad Company, 181 U. S. 248, 21 Sup. Ct. 603, 45 L. Ed. 847. Upon the authority of those decisions the demurrer to the bill for want of equity was sustained, the court drawing therefrom the conclusion that when the law is upon its face one to prevent the spread of disease in a state, and is a constitutional exercise of the legislative power, the state officers may be relied upon to enforce it in good faith, and in justice to all. In other words, the conclusion reached was that state officers claiming to act under and justifying their acts by a law which is valid, are not subjéct to control or injunction by the courts. We are unable to agree with that conclusion, nor do we find support for that doctrine in either of the cases above referred to or in any decision [757] of the courts. In the Rasmussen Case the validity of the act of the Idaho Legislature of March 13, 1899 — which is the act under which the defendants justify their course in the present suit — was in question. It was held that the act is not in conflict with the Constitution of the United States. There was no suggestion in that case of unlawful action under the law. The sole question was of the legality of the act. So, in the case of Smith v. St. Louis & Southwestern Railroad Company, the court considered a similar quarantine law of Texas, which made it the duty of a live stock sanitary commission, upon receipt of “reliable information” of the existence of certain diseases among cattle, to make careful examination of animals believed to be infected with such disease, and to ascertain what, if any, disease existed; and, if the disease was found contagious or infectious, it was made the duty of the commission to direct and enforce “such quarantine lines and sanitary regulations as are necessary to prevent the spread of any such disease,” and to provide that no domestic animal infected with such disease should be permitted to enter or leave the district or grounds so quarantined, except by authority of the commissioners. It was held that this statute, as construed and applied;"was not in conflict with the Constitution of the United States. In that case, as in the Rasmussen Case, there was no question of misconduct of the commissioners, and there was no contention that their action was controlled by improper motives, or was unjustified by the facts, except that it was contended that it did not affirmatively appear that the action of the commission was taken on sufficient information. But the court held that it did not appear that it was not taken on sufficient information, and therefore applied to the case the presumption which the law attaches to the acts of public officers. The inference fairly to be drawn from thq language of the decision is that, if it had appeared that the action of the sanitary commission was taken on insufficient information, a different case would have been presented.
It is contended that the decision of the Circuit Court finds support in the case of Compagnie Francaise v. Board of Health, 186 U. S. 380, 22 Sup. Ct. 811, 46 L. Ed. 1209. But there, as in the cases above referred to, the sole question was of the validity of the quarantine law. The quarantine had been established by the State Board of Health of Louisiana, a corporation whose existence and powers were derived from the act of the Legislature of that state (section 8 of act No. 192, p. 444, of the year 1898) authorizing the State Board of Health, in its discretion, to “prohibit the introduction into any infected portion of the state persons acclimated, unacclimated, or said to be immune, when in its judgment the introduction of such persons would add to or increase the prevalence of the disease." Under this power the Board of Health excluded healthy persons from a locality infested with a contagious disease, and its power to do so was sustained by the court. No question was raised of the perversion of the law for private gain, or selfish interest, or for any improper purpose. Indeed, it is difficult to conceive how any such question could have arisen. The law did not require the Board of Health to obtain information, or to have good reason for its action, but committed the [758] whole matter to its judgment. In the exercise of its judgment, the board established the quarantine. It was not contended that its judgment was improperly influenced, or that its action was unwise. The case, as it was presented to the court, was one which involved only the power of a state to prevent citizens in good health from entering a quarantined district. The power was sustained, evidently upon the theory that the entrance of such persons added fuel to the flame, furnished new subjects for the disease, extended its ravages, and prolonged its life.
A leading case upon the law of quarantine is Railroad Company v. Husen, 95 U. S. 465, 24 L. Ed. 527, a case in which the court had under consideration an act of the Legislature of Missouri, which provided that no Texas, Mexican, or Indian cattle should be driven or otherwise conveyed into or remain in any county of that state between March 1st and November 1st in each year. The question was whether the statute was in conflict with the clause of the Constitution giving to Congress the power to regulate commerce, and whether it was a proper exercise of the police power. The court said, “It is a plain regulation of interstate commerce, a regulation extending to prohibition,” and the court held also that it was not a lawful exercise of the police power of the state. The decision in that case recognizes the right of a state to pass sanitary laws and laws for the protection of property within its borders, and its right to prevent persons and animals suffering from any contagious or infectious disease from entering the state, and its right to establish quarantine and reasonable inspection laws, but it denies its right to interfere with transportation into the state “beyond what is absolutely necessary for its self-protection. The court said, “It may not, under the cover of exercising its police powers, substantially prohibit or burden either foreign or interstate commerce.” Of the statute then under consideration, the court said:
“It is not a quarantine law. It is not an inspection law. It says to all natural persons and to all transportation companies: ‘You shall not bring into the state any Texas cattle, or any Mexican cattle, or Indian cattle between March 1st and November 1st in any year, no matter whether they are free from disease or not.’ * * * The police power of a state cannot obstruct foreign commerce or interstate commerce beyond the necessity for its exercise. * * * And, as its range some times comes very near to the field committed by the Constitution to Congress, it is the duty of the courts to guard vigilantly against any needless intrusion.”
The application of the doctrine of that case to the present discussion leads to the inquiry: Can state officers accomplish under the protection of a valid law the very results which the state is forbidden to authorize by legislation? Here are state officers who, if the allegations of the bill are true, are so using the police power as to obstruct “interstate commerce beyond the necessity for its exercise.” The contention of the appellees, followed to its logical conclusion, is that, if the act under which state officers proceed to establish a quarantine is of itself valid and constitutional, it matters not to what extent such authority be abused, nor upon what grounds or information the officers proceed. No matter how arbitrary their act, or how unfounded in necessity or reason, it must be presumed that [759] it is done in good faith, and the bona fides thereof is not subject to investigation. By this doctrine the power of congress to regulate interstate and foreign commerce is practically taken away, and vested in the executive officer of the states. The act of the Legislature of Idaho authorizes the Governor to proceed when he “has reasons to believe” that the conditions exist for his action. It contemplates that his action shall be well grounded in fact, and that, in the absence of such reasons, he has no authority to proceed. Such a limitation would necessarily be imported into the law if the act had been silent on the subject. The provisions of the Constitution must necessarily impose restrictions on the action of state officers, and restrain them from exercising the police power further than is reasonably necessary to secure protection against disease. It is alleged in the bill that the sheep in question were not diseased, and the court so found upon a hearing had upon the application for a temporary injunction. It is not disputed that danger of contagion from sheep diseased with scab or scabbies is removed by a simple treatment applied twice with an interval of io days. It is averred also, and it is not disputed, that to exclude sheep for 40 days at the usual time when such sheep are brought from Nevada and Utah into Idaho for summer pasturage is, in effect, a total exclusion. It is alleged that the true purpose of the proclamation and of the acts of the appellees is to prevent the admission of the appellants’ sheep to the pasture on the public domain within the state of Idaho, and to reserve such pasturage for the sheep of the inhabitants of that state. If these averments are true, we think the appellants are entitled to equitable relief, and that the court erred in sustaining the demurrer and dismissing the bill.
The cause will be remanded, with instructions to overrule the demurrer, and for such further proceedings as may not be inconsistent with the foregoing views.