59 P. 933 | Idaho | 1900
The appellant was convicted of a violation of the provisions of an act of the legislature of Idaho, and the proclamation of the governor issued under and in obedience to the command of said statutes, from which judgment this appeal is taken. The said act is as follows:
“Section 1. Whenever the governor of the state of Idaho haa reason to believe that scab or any other infectious disease of*4 sheep has become epidemic in certain localities in any other state or territory, or that conditions exist that render sheep likely to convey disease, he must thereupon, by proclamation, designate such localities and prohibit the importation from them of any sheep into the state, except imdei such restrictions as, after consultation with the state sheep inspector, he may deem proper. Any person or corporation who, after publication of such proclamation, receives in charge any such sheep from any •of the prohibited districts, and transports, conveys or drives Ihe same to and within the limits of any of the counties of this state, is punishable by a fine not exceeding $1,000 nor less than $200, and is liable for all damages that may be sustained by any person by reason of the importation or transportation of such prohibited sheep.
“Sec. 2. Upon issuing such proclamation, the owners or persons in charge of any sheep being shipped into Idaho, against which quarantine has been declared, must forthwith notify the deputy inspector of the county into which such sheep first come, of such arrival, and such owner or persons in charge must not allow any sheep so quarantined to pass over Or upon any public highway, or upon the ranges occupied by other sheep, or within five miles of any corral in which sheep are usually corraled until such sheep have first been inspected, and any person failing to comply with the provisions of this section is punishable as provided in section one of this act and is liable for all damages sustained by any person by reason of the failure to comply with the provisions of this section.”
On the twelfth day of April, 1899, the governor of Idaho, in compliance with the provisions of said act, issued the following proclamation:
“State of Idaho, Executive Office.
“Whereas, I have received statements from reliable wool-growers and stock raisers of the state of Idaho, said statements being supplemented by affidavits of reputable persons, all to the effect that the disease known as ‘scab’ or ‘scabbies’ is epidemic among sheep in certain localities or districts, viz., in the county of Cache, state of Utah, the county of Box Elder, state of Utah, and the county of Elko, in the state of Nevada; and*5 whereas, it is known that sheep from said districts are annually moved, driven, or imported into the state of Idaho, and, if so moved, would thereby spread infection and disease on the ranges and among the sheep of this state, which act would result in great disaster: Now, therefore, I, Frank Steuenberg, governor of the state of Idaho, by virtue of authority' in me vested, and after due consultation with the state sheep inspector, do hereby prohibit thé importation, driving, or moving into the state of Idaho of all sheep now being held, herded, or ranged within said infected district, viz., the county of Cache, in the state of Utah, the county of Box Elder, in the state of Utah, and the county of Elko, in the state of Nevada, or which may hereafter be held, herded, or ranged within said infected districts, for a period of sixty days from and after the date of this proclamation. After the termination of said sixty days, sheep can be moved into this state only upon compliance with all laws of the state of Idaho regarding the inspection and dipping of sheep. In witness whereof, I have hereunto set my hand, and caused to be affixed the great seal of the state. Done at Boise, the capital, this 12th day of April, in the year of our Lord one thousand eight hundred and ninety-nine.
“FRANK STEUENBERG. [Seal]
“By the governor:
“M. PATRIE,
“Secretary of State.”
While there are some sixteen assignments of error in this case, it is conceded by counsel for appellant that the important question involved is the constitutionality of the act of the legislature of Idaho under which the conviction was had. It is claimed that this case comes within the reasoning of this court in the ease of State v. Duckworth, 5 Idaho, 642, 51 Pac. 456, 39 L. R. A. 365. In that case the defendant was convicted of a violation of an act of the legislature of: Idaho passed in 1895, and amended in 1897, section 6 of which act provides as follows:
“Sec. 6. Any person, persons, company, corporation or association intending to bring, or cause to be brought from any other state dr territory into any of the counties of the state of Idaho, any sheep, he or they must first notify the deputy sheep*6 inspector of the district or county nearest to the point of entrance into this state that at a fixed date he will be within twenty miles from the state line at a designated point, with said sheep for inspection; and it shall be the duty of the deputy sheep inspector to examine such sheep within three days, and if pronounced sound, to immediately dip such sheep once, and then upon being tendered his compensation as hereinafter provided, issue a permit allowing such sheep to enter this state subject to such regulations as are enforced on resident sheep. But if such sheep are found scabby or infected with any contagious or infectious disease, then the deputy sheep inspector must dip said sheep twice with an interval of from eight to fifteen days between dipping and then issue a permit for said sheep to enter said state under the same regulations as heretofore provided; provided, however, that all sheep must enter said state within three days from final dipping, otherwise permit so issued shall be null and void. And any person or persons violating any of the provisions of this section shall be deemed guilty of a misdemeanor, and upon conviction, they shall be punished by a fine of not less than one hundred ($100) dollars, nor more than three hundred ($300) dollars, or by imprisonment in the county jail not less than two months nor more than six months, or by both such fine and imprisonment; provided, that any person, persons, company, corporation or association bringing or causing to be brought any sheep into any counties of this state in violation of the provisions of this act, shall be fined in addition to the penalty imposed in this section, five cents per head, for every sheep so brought into this state, which shall be a lien on said sheep; and it shall be the duty of the deputy sheep inspector to seize and hold such sheep by such means as he deems best, for a period of ten days, and if said sum is not paid within that period, to advertise and sell said sheep, or as many of the same as may be necessary to satisfy and pay such fine and costs/’
And section 14 of the law of 1895 provides as follows:
“Sec. 14. It shall be unlawful for any person, persons, company, corporation or asociation, owning, controlling or managing any ferry-boat, toll-bridge, car, steamboat or other things*7 used for transportation, to allow any sbeep to be carried thereon, unless the party in charge of said sheep shall first produce a certificate from a deputy sheep inspector appointed under this act, that said sheep are free from scab, seabbies or other infectious or contagious disease. Any violation of this section shall be deemed a misdemeanor and punishable by a .fine of not less than one hundred dollars nor more than two hundred and fifty dollars.”
A comparison of the act of 1897 with the act under question will, we think, disclose a greater difference than existed between the law of Missouri held by the supreme court of the United States to be invalid in Railroad Co. v. Husen, 95 U. S. 465, 24 L. ed. 527, and the law of Kansas, the validity of which was sustained by the same court in Missouri etc. Ry. Co. v. Haber, 169 U. S. 613, 18 Sup. Ct. Rep. 488, 42 L. ed. 878. The statute under consideration in the case of State v. Duckworth, supra, prohibited the introduction into this state, in any manner or form, or the transportation through the state, in any way or by any means, of any sheep, until same had been inspected by a sheep inspector of Idaho, which inspection must be made twenty miles beyond the state line of Idaho; and all sheep must be dipped at least once, and, if found infected, twice, before they were allowed to enter the state, and all this to be done by a sheep inspector of Idaho, twenty miles beyond the line of the state. The law of 1899 was intended as a quarantine law. It does not exclude all sheep, but only such as from the fact of their coming from an infected district, are liable to import disease. The statute of 1899, under which appellant was convicted, is simply a quarantine law — nothing more, nothing less. We do not understand that it is, or ever was, an essential to the enforcement of a quarantine that the fact of the existence of the disease in the subject of the quarantine should be primarily established. As we understand, it is a preventive measure. It will hardly be claimed, we apprehend, that the state has not the power to prevent, by legislative enactment, the introduction within its boundaries of diseased animals; and this is all that the act under consideration purports or is intended to accomplish.
The contention of appellant that it was not shown that any of the sheep driven by him into this state were diseased, or that he was not permitted, although ready, to prove that none of said sheep were diseased, cannot be entertained. The appellant himself testified that he had the sheep in Box Elder county, Utah, which is designated in the proclamation of the governor as one of the infected districts, and against which quarantine had been declared for the period of twenty-five days. The fact that these sheep came directly from an infected district was sufficient to establish their capability and liability to communicate disease. The authorities upon the disease known as "sheep scab” say that it may be communicated by contact of one sheep with another, or indirectly from tags of wool, or from fences, posts, etc., against which scabby sheep have rubbed, or from the places where the sheep have been "bedded down.” (See Report of Chief of Bureau of Animal Industry for 1898.) What protection, then, have the sheep-growers of Idaho, without the aid of just such preventive laws as that under consideration?
We have examined and considered the various assignments of error set out in appellant’s brief, and we do not think that any of them present reversible error. Appellant claims that the venue is not properly laid. We do not think this contention can obtain. The bringing into any county of the state of sheep from the prescribed districts is an offense, and prosecution therefor may be instituted in any county where the sheep are found. We do not think that the act delegates to the governor legislative power. It simply requires him to act when he ascertains that certain conditions exist. This is not a delegation of legislative power, as we understand it. Having ascertained, through entirely proper and legitimate methods, the existence of the exigency which, under the law, required