Missouri Railway Company v. Haber/Dissent Brewer

Mr. Justice BREWER, dissenting.

I am unable to concur in the opinion filed in this case. The statute provides that a carrier bringing into the state cattle which are capable of communicating Texas, splenic, or Spanish fever to domestic cattle shall be liable to any persons injured thereby for all damages they may sustain by reason of the communication of said fever. This liability is not limited to the injury which may be done by the cattle while in the possession of the carrier, but extends to that which may be done at any time thereafter in whosesoever possession they may be. And in this particular case it is found by the jury that the fever was communicated and the injury done after the cattle had passed out of the custody of the carrier, and into the possession of other persons. The statute also provides that proof that the cattle were brought into Kansas from e rritory south of the Kansas state line shall be prima facie evidence that they were capable of communicating the fever, and that the carrier had knowledge of that fact.

I am not disposed to belittle this question, or the difficulties which attend the effort to prevent a communication of Texas fever and the injuries which result therefrom. On the contrary, I fully appreciate the importance of securing to all stock owners in Kansas and elsewhere the fullest protection against this so fatal disease, and believe that stringent measures may properly be adopted to accomplish this result. I differ with my brethren only as to the authority by which such measures should be enacted, and as to the validity of the legislation before us. It is conceded in the opinion of the majority that congress has full control over interstate commerce, and that it is the only authority by which that commerce can be regulated. On the other hand, it is equally clear, as pointed out, that the states may make many police restrictions and provisions which, while indirectly affecting interstate commerce, do not directly regulate it, and the question is whether this particular statute comes within the category of such police regulations.

It must be premised that Southern cattle which are capable of communicating this disease are not necessarily themselves diseased, or their meat unfit for consumption. This is not a mere conjecture, but a well-established fact. In the report of the bureau of animal industry for the years 1891 and 1892, which contains the results of investigations into the nature, cause, and prevention of cattle fever, it is said, on pages 266 and 267: 'The presence of the parasite in Southern cattle does not seem to materially affect their health, although it may maintain a more or less constant breaking up of the red corpuscles on a small scale, which would necessarily tax certain vital organs. * *  * From a practical, economic standpoint, we must maintain that Southern cattle may be healthy, and yet be the cause of Texas fever.' And in the final summing up of the conclusions of the investigators, on page 290, it is further stated: 'Cattle from the permanently infected territory, though otherwise healthey, carry the microparasite of Texas fever in their blood.'

And in the regulations concerning cattle transportation, promulgated by the United States department of agriculture on February 26, 1892, as appears from the record in this case, as also in similar regulations issued by the same department on December 15, 1897, it is provided that, within certain specified dates, no cattle are to be transported from below the federal quarantine line except by rail or boat for immediate slaughter. These cattle are being constantly forwarded by the thousands to the packing houses of this country, and, when butchered, their meat is shipped all over the world, and used with impunity. Statistics found in the cases of Cotting v. Stockyards Co., Sup. Ct. --, and Hopkins v. U.S., —Sup. Ct. --, now pending in this court, show that in the year 1896 (and that is but a sample of other years), of something over 1,700,000 head of cattle shipped to the Kansas City stockyards, more than 500,000 came from the territory proscribed by the Kansas statute, and that of these cattle 60 per cent. or more were sold to the packing houses there situate for immediate slaughter.

It appears from the report above referred to that this fever is generally disseminated by means of a tick, technically called 'boophilus bovis,' though the jury in this case, in answer to specific questions, found that the fever was communicable otherwise than in that way. The presence of ticks upon the cattle does not necessarily indicate disease. They are purely external, like fleas on a dog, and do not prove that the body is in an unhealthy condition. It may be a curious fact, the cause of which is not yet fully explained, that these cattle range in the South without developing in themselves or communicating too thers this Texas fever, while, when brought into the temperate zone, they seem to communicate it freely and in a most dangerous form. Whatever may be the explanation of this fact does not abridge its significance. Hence it is that these Southern cattle, although they may have ticks upon them, and thus be liable to communicate the disease to Northern cattle, may be entirely free from any disease, their meat a perfectly healthy article of food, and they themselves legitimate subjects of commerce. If they are, when brought into the North, pastured at a distance from native cattle, and the latter are not thereafter permitted to range in the field in which the former have been kept, the disease will not be communicated; the Southern cattle may safely be fattened, and prepared for market and use. It is only when the native cattle are permitted to pasture in or near the grounds in which the Southern cattle are or have recently been kept that injury results. The case presented, therefore, is not that of legislation to prevent importation of diseased meat,-that which in itself is unhealthy and unfit for use,-but something which, if improperly or carelessly handled, may communicate disease and do injury. The very phraseology of the statute indicates this. It does not name diseased cattle, but only those liable to communicate disease. If other Northern states follow with like legislation, commerce between the two sections of the country in this most important product of portions of the South will be practically interrupted.

The cases referred to in the opinion of the majority in which the police power of the state has been sustained were cases in which the restrictions or regulations only indirectly affected interstate commerce,-as, for instance, requiring an engineer to take out a state license (Smith v. Alabama, 124 U.S. 465, 8 Sup. Ct. 564); or to be free from and submit to an examination for color blindness (Nashville, C. & St. L. Ry. Co. v. Alabama, 128 U.S. 96, 9 Sup. Ct. 28); prescribing the mode of heating passenger cars (New York, N. H. & H. R. Co. v. New York, 165 U.S. 628, 17 Sup. Ct. 418); requiring the prompt delivery of telegraphic messages under condition of a penalty (Telegraph Co. v. James, 162 U.S. 650, 16 Sup. Ct. 934). Nothing of that kind is prescribed by this statute. No inspection is provided for by the state; none required of the carrier; no duty imposed in respect to the handling and care of the cattle while in its possession. It simply prescribes the conditions upon which the carrier may bring cattle into the state, to wit, liability not merely for injury which its own improper handling may cause, but for injury which may result at any time thereafter from any future improper handling by the consignee or subsequent party into whose custody the cattle may pass. It seems to me, beyond any peradventure, this is legislation directly regulating commerce between the states, and, as such, is within the sole dominion of congress. It materially affects the conduct of the carrier outside of the limits of the state; and that is one of the tests of invalidity. Hall v. De Cuir, 95 U.S. 485-488; Bowman v. Railway Co., 125 U.S. 465-486, 8 Sup. Ct. 689, 1062. Suppose cattle are presented to a carrier in Texas for shipment to Kansas, can it properly refuse to receive and transmit? Can it plead the Kansas statute in defense of its duty as a common carrier? If it says that the cattle have ticks upon them, and therefore are liable to communicate Texas fever, or, if not having ticks upon them, may otherwise (as shown by the verdict of this jury) communicate the disease, the shipper may reply that he intends them for immediate slaughter, and that they are a legitimate article of commerce. But that will not relieve the carrier. The liability imposed by the Kansas statute does not depend upon the intent with which the cattle are shipped into the state; and, having delivered them to the consignee, the carrier has no further control. Although shipped wt h the intention of immediate slaughter, the consignee may change his mind and pasture them in the state. Whatever may have been the intention of the shipment, the liability of the carrier is the same.

I cannot believe that the carrier is thus placed beneath the upper and the nether millstone, liable, under the law of Texas, to the owner of the cattle if he refuses to ship them (Bowman v. Railway Co., supra), and liable to any one in Kansas, under the Kansas statute, if injuries result from the improper handling by the consignee or others. The presumption of knowledge, which is provided for in section 17, is, in this aspect of the case, entirely immaterial, and does not affect the validity of the statute. Apply the principle of this legislation to other objects than cattle, and see in what it results. Gunpowder, dynamite, many of the drugs used in medicine, while legitimate articles of commerce, and of great value for certain purposes, may, if improperly or carelessly handled, be the means of doing immense injury. Can a state say to a carrier, 'You may bring gunpowder or any other article of danger into the state, but, if you know its dangerous character, you shall be responsible for all damages that it may cause in the hands of the consignee or any subsequent party through improper handling?' It certainly places it in the power of the state to most materially interfere with interstate commerce if it can prescribe that as a condition of its being carried on. The number of articles and the amount of interstate commerce thus subjected to the will of the state can scarcely be overestimated.

It is undoubtedly true that legislation should be had in respect to matters of this kind, but, in my judgment, such legislation can only come from congress, and that body, and that body alone, can prescribe the conditions upon which commerce in these cattle can be carried on. Congress has legislated, but only partially, and the fact that its legislation does not go so far as in the judgment of the legislature of Kansas is required, is not, in my opinion, sufficient to warrant the state in enacting this statute. For these reasons, thus briefly stated, I am compelled to dissent from the opinion of the court.