No. 837 | 9th Cir. | Feb 2, 1903
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" court="SCOTUS" date_filed="1901-04-22" href="https://app.midpage.ai/document/rasmussen-v-idaho-95462?utm_source=webapp" opinion_id="95462">181 U. S. 198, 21 Sup. Ct. 594, 45 L. Ed. 820" court="SCOTUS" date_filed="1901-04-22" href="https://app.midpage.ai/document/rasmussen-v-idaho-95462?utm_source=webapp" opinion_id="95462">45 L. Ed. 820, and Smith v. St. Louis & Southwestern Railroad Company, 181 U.S. 248" court="SCOTUS" date_filed="1901-04-22" href="https://app.midpage.ai/document/smith-v-st-louis--southwestern-railway-co-95467?utm_source=webapp" opinion_id="95467">181 U. S. 248, 21 Sup. Ct. 603, 45 L. Ed. 847" court="SCOTUS" date_filed="1901-04-22" href="https://app.midpage.ai/document/smith-v-st-louis--southwestern-railway-co-95467?utm_source=webapp" opinion_id="95467">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
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" court="SCOTUS" date_filed="1902-06-02" href="https://app.midpage.ai/document/compagnie-francaise-de-navigation-a-vapeur-v-louisiana-state-board-of-health-95698?utm_source=webapp" opinion_id="95698">186 U. S. 380, 22 Sup. Ct. 811, 46 L. Ed. 1209" court="SCOTUS" date_filed="1902-06-02" href="https://app.midpage.ai/document/compagnie-francaise-de-navigation-a-vapeur-v-louisiana-state-board-of-health-95698?utm_source=webapp" opinion_id="95698">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
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
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.