OCR Interpretation


Tombstone epitaph. (Tombstone, Ariz.) 1887-current, November 12, 1887, Image 1

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VOL. IX.
TOMBSTONE, AEIZONA, NOVEMBER 12, 1887.
i
u
NO. 15.
AN ABLE OPINION.
AN UNCONSTITUTIONAL LAW.
The Quarantine Law Declared to be of no Effect
The Commissioner of Agriculture
the Proper Person to En
force Quarantine.
Tombstone, Oct. 31, 1887.
C. M. Bruce Esq., Chairman Live Stock
Sanitary Commission or Arizona:
Dear Sir: The delay in completing the
"opinion" requested, since my return from
Sonora, has been owing to the time re
quired for a complete investigation of
the statutes andauthorities bearing upon
the subject. The question is one of great
importance, and I have felt it my duty to
give it an exhausive, research. It will no
doubt occur to the commissioners that in
view of the very plain provisions of the
United States Statutes, it was a piece of
great carelessness on the part of the last
legislature, that it did not place the Com
jrtission in apposition to Jaynulate.a plan
of action and receive the acceptance of
the Department of Agriculture. I have
no doubt, however, that the Governor
may yet signify his willingness to co
operate with the Department upon a plan
of operations which maybe submitted by
your Commission. Such plan once
adopted by the Commissioner of Agricul
ture, would at once have the force of the
law in this Territory, and the Territorial
courts are clothed with jurisdiction ex
pressly to enforce Its provisions.
Your Commission would, necessarily
be the constituted authority to see the
regulations enforced.
The ccurse which I suggest is free
from all question, and would at once
place your Commission in harmony with
the Department of the Government spec
ially constituted to prevent the spread of
infectious, contagious and communicable
diseases among cattle.
I should gladly have come to the con
clusion that the acts of the Commission
ers in respect to the question submitted,
could be sustained under the law, but I
am compelled to yield in the full light of
the statutes and the authorities, upon the
subject.
The presentation of this subject to a
Commission of laymen has required a
more elaborate statement than would
have been necessary to a court, but I am
satisfied that the fuinessofthe opinion
will not detract from its value in the es
timation of the Commission.
Yours very truly,
. William Herring.
Babacomori Ranch, Nov. 3, 1887.
Col. William Herring, Tombstone A. T.
Dear Sir: I thank you for your es
teemed favor of the 31st ultimo, and also
for the opinion of Messrs. Herring &
Herring (submitted by you by request, as
assistant counsel in the case of the Ter
ritory of Arizona vs. A. Bauer for viola
tion of the Governor's Proclamation (
Quarantine against Mexico) of the con
stitutionality of sections 16 and 17 of the
Act of the Territorial Legislature, giving
the Live Stock Sanitary Commission, the
authority to impose certain restrictions
on the importation of cattle into the Ter
Jtory, from( the States and. Territories
and from foreign countries whenever con
ditions are believed to exist, that make
uch cattle liable to convey disease. The
opinion sets forth in clear language,
with much learning and ability, the lim
ited powers,.of the Territory, and the
nature of the supreme powers, which
have been vested in Congress by
the Constitution over international and
jnter-State commerce, and shows the
extent to which both hay,e been interfered
with by the two sections named, in an
endeavor on the part of the legislature
to give the Commission an authority
which, being subordinate to Congress and
,to the United States Constitution, it had
clearly, in the light of this opinion, no
legal right to bestow. It is of vast im
portance to the cattle industry of Arizona,
however, tha there should be some
authority under which proper restrictions
may be exercised, to protect the Terri
tory from importations of diseased cattle
from the States and Territories and from
foreign, countries, and I am glad to see
by the opinion, since it seems that the
powers granted the Commission by'the
legislature over such importation are
.null and void, that there exist Federal
statutes establishing methods, in the
person of the Commissioner of Aericul-
4tqre,,bywh,ich the proper protection may
yet be secured in all such cases by the
Terrjtorial officials. I shall urge this
Commission, as Its chairman, therefore,
after submittingthis opinion to it, to seek
the co-operation of the Federal author
ities, after the manner which you have
suggested, just as soon as it is practicable
for it to do so, and I hope it may meet
with success. Governor Zulick has
always shown himself eager to advance
the welfare of the cattie interest, as well
as every other interest of the Territory,
by every honorable means, and I feel
sure that he will gladly aid the Commis
ion in acquiring such co operation of the
National Government in this matter as
may 6e necessary, He declared the
quarantine against Mexico at the espec
ial request of the Commission, as re
quired by law, and I sincerely regret to
know that the Territorial statutes, under
which his procl.umtion was issued, and
under which ths" Commission was author
ized to act, cannot be sustained by the
Courts. With repeated thanks to you
for your letter, and to your law firm for
the opinion, I remain, my dear sir,
Your obedient servant,
C. M. Bruce,
Chairman' of the Live Stock Sanitary
Commission of Arizona.
C. M. Bruce, Esq., Chairman Live Stock
Sanitary Commission of Arizona.
Dear Sir: In reply to your request
that we should examine certain provis
ions of the "Stock Laws," passed by the
Territorial Legislature of 1887, and fur
nish the above named commission with
our opinions in relation to the validity of
the same, we beg to submit the follow
ing OPINION.
It Is provided by section 16, Chapter
III, Title LIX, Revised Statutes of Ari
zona, that
"Whenever the Governor of-lhe Ter
ritory shall have reason to believe that
any dangerous, contagious or infectious
disease has become epidemic in certain
localities in other States, territories or
countries, or that there are conditions
which render such domestic animals
from such infected districts liable to con
vey such disease, he shall by proclama
tion, prohibit the importation of live
stock of the kind diseased into the Ter
ritory, unless accompanied by a certifi
cate of health, given by a duly authorized
veterinary inspector, and all such animals
arriving in the Territory shall be exam
ined without delay, by the ternional
veterinary surgeon, and if deemed neces
sary placed in close quarantine until all
danger of infection is passed, when they
shall be released by order of the vet
erinary surgeon or the stock commis
sion.
It is further provided by Section 17,
same chapter and title, that
"The commission shall have the
power to call upon any sheriff, under
sheriff, deputy sheriff, or constable to
execute their orders, and said officers
shall obey the order of said commission
ers, and the officers performing such
duties, shall receive compensation there
for, as is prescribed by law for like ser
vices, to be paid as other expenses of said
commission as hereinbefore provided; and
any officer may arrest on view, and take
befire any magistrate of the county any
person found violating the previsions of
this Act, and such officer shall imme
diately notify the County Attorney of such
arrest, and he shall prosecute the person
so offending according to law."
The Organic Act under which the
Territory of Arizona is constituted, pro
vides that
"The Legislative power of the Terri
tory shall extend to all rightful subjects
of legislation consistent with the consti
tution of the United States and the pro
visions of the Act."
Under Section VIII, Art. I, of the Con
stitutionof the United States, it is pro
vided that
"Congress shall have power to regu
late commerce with foreign nations
and among 1 he several States and with
the Indian tribes."
The framers of the two sections of the
Territorial Statute above quoted un
doubtedly believed that the powers
sought to be expressed in relation to pro
hibiting "the importation of any live stock
of the kind diseased into the Territory,"
were within what are termed "the police
powers" of the Territorial government.
While it must be admitted that the
power to pass quarantine laws, laws for
the protection of the public health and
for the protection of persons and prop
erty, are necessary police powers of the
State or Territory, yet there is another
and highly important principle which
arises in the consideration of the exercise
of such powers, and that is, that such
powers must be exercised in subordina
tion to the power vested in the general
government.
The force of the proposition is best
illustrated when an act passed by a State
legislature is sought to be maintained as
police regulation in cases where such
branch of police power has been surren
dered to the government as a part of the
power to regulate commerce, in which
case its exercise by a State is incompat
ible with the authority vested in the
Government.
As was said in Brown v. the State of
Maryland, 12 Wheat., 419, by Chief Jus
tice Marshall: "When this happens,
that which is not supreme must yield to
that which is supreme."
The application of the principle to
State governments in restricting their
legislative powers from an interference
in the control of matters resting solely
under the authority of the General Gov
ernment, and an authority formerly
deemed inherent in, and individual to,
the States, but now formally surrendered
to the Government.shows the utter weak
ness and inability of a Territory in its
claim to exercise any powers, other than
those expressly derived under its organ
ic act or by subsequent Congressional
legislation.
It may be regarded as the settled law
of the land that the grant of power by the
States to Government to regulate foreign
commerce and commerce between, the
States has divested the States of all pow
er to legislate upon such subjects "where
the matters which are the subject of the
power are in their nature national, or
admit of one uniform system or plan of
regulation."
In the case of Cooley v. Board of War
dens, 12 Howard, 299, which was present
ed to the United States Supreme 'Court
four years after the opinion of the Judges
in the celebrated New York and Massa
chusetts Passenger cases ,(1849), a par
ticular section of the State law of Penn
sylvania regulating pilots and pilotage
was drawn in question, and it was the
opinion of a majority of the Court that
"the mere grant to Congress of the
power to regulate commerce did not de
prive the State of power to regulate
pilots, and that although Congress has
legislated upon this subject, its legislation
manifests an intention, with a simple ex
ception, not to regulate this subject but to
leave its regulation to the several
States." It is expressly declared by the
court that this opinion must be under
stood as confined to the precise question
which the court was called upon to decide,
and that it does not extend to the ques
tion, what other subjects under the com
mercial power are within the exclusive
control of Congress or may be regulated
by the States in the absence of atl Con
gressional legislation. Mr.Justice Dan
iels, who writes a concurring opinion in
this case, places his opinion expressly
upon the ground that the power exercis
ed by the State, "although in some degree
connected with commercial intercourse,
does not come essentially and regularly
within that power of commercial regula
tion vested by the Constitution in Con
gress, and which by the Constitution
must, when exercised by Congress, be
enforced with perfect equality and with
out any kind of discrimination, local or
otherwise in its application."
12 Howard, 326,
In Crandall v. the State of Nevada, 6
Wall., 35, the doctrine was reiterated,
"That the power granted to Congress to
regulate commerce with foreign nations
and among the States includes subjects
pf legislation which are necessarily of a
national character, and therefore exclu
sively within the control of Congress."
The doctrine enunciated in Cooley
v. Board of Wardens was also re-affirmed
in Gilman v. Philadelphia
3 Wall., 173.
Investigation into this branch of the
subject has thus far been made to ascer
tain what might be regarded as a rightful
subject of legislation in regulating com
meice on the part of a State, as it must
logically follow that that which is no
longer a rightful subject of legislation by
a State cannot be a rightful subject of
legislation by a Territory.
The question therefore arises, to what
extent do the sections of the act under
consideration, under the guise of the
"police regulations," operate as the exer
cise of a power which is vested exclusive
ly in the Government, not only as to the
States where the subject is of national
character, or in relation to which a uni
form plan or system has already been
provided, but especially as to the Terri
tories. Section 16, Chapter 3, Stock Laws, ex
pressly authorizes the Governor of the
Territory, under certain conditions, to
prohibit the importation of live stock into
the Territory from other States, Terri
tories, or countries. The reference is
direct and specific to property which is
the subject of trade, traffic and com
merce. Power is reposed in the Commissioners
under the succeeding section to cause
the summary arrest of any person found
violating the regulation imposed, and pro
vision is made for the immediate prose
ecution of the offender.
As has been already stated these pro
visions were designed for the purpose of
protecting the property of the citizens of
the Territory from the disastrous results
which so frequently flow from the spread
of disease among live stock, and if the
legislature had confined the law-making
power to mere internal police regulations
to prevent the spread of disease, the ques
tion would present no difficulties. Ari
zona is bordered on three sides by States
and Territories ot the Union and on the
fourth side by Mexico, an independant
nation. The statute authorizes a direct
prohibition against a foreign nation, of
the property of its citizens, and such pro
hibition is vested in the discretion of the
Governor of the Territory. The statute
is broad, comprehensive and sweeping.
Under its provisions, if the Governor
believes that any dangerous, contagious,
or infectious disease has become epidem
ic in certain localities in Mexico, or
that there are conditions existing in any
localities which render such domestic
animals liable to convey such disease, he
may cause the importation of any cattle
from the entire Republic of Mexico to be
interrupted. It is idle to say that the
statute is only aimed at diseased cattle,
or those liable to convey disease. The
machinery of the Territorial government
once evoked under the Governor's proc
clamation amounts practically to an em
bargo upon all importation of cattle for
the time being. "Legislative enactments,
when the language is unambiguous, can
not be changed by construction nor can
the language be divested of its plain and
obvious meaning."
State Tonnage Tax Cases, 11 Wall.,
217.
The recent quarantine, by the Com
mission appointed under this act, of cat
tle imported into Cochise County from
Sonora, where it was conceded that no
dangerous, contagious, or infectious dis
ease, among domestic animals had be
come epidemic, was a power claimed to
have been exercised under the govern
or's recent proclamation in relation to the
importation of cattle from Mexico, and
aptly illustrates the practical Working
under the sections of the act in qustion.
In the discussion i,( the qutstfon pre
sented it is not ntcessar, however, to en
quire whether the cattle are imported
from an infected district or are liable to
convey disease. The real question at
issue is, whether the power exists to any
extent, which permits the Territory to
make any regulations upon the snbject of
importation.
In addressing ourselves to the discus
sion of this point, our first inquiry must
necessarily be whether the act of impor
tation as referred to in the Arizona
statute is within the meaning of the word
commence as contained in the Constitu
tion, Upon this subject the Supreme Court
of the United States has spoken in un
mistakable terms. In the language of
Mr. Justice Clifford in the "State Ton
nage Cases:
"The word commence as used in the
Constitution comprehends and extends
to every species of commercial inter
course between the United States and
foreign nations, and to all commerce in
the several States, except such as is
completely internal and which does not
extend to or affect other States."
12 Wall., 214.
Gibbons v. Ogden, 9 Wheaton, 202.
Sinnot v. Davenport, 22 Howard, 238.
Foster v. Davenport, 22 Howard, 245.
Perry v. Torrence, 8 Ohio, 524.
It may be claimed that the statute in
question is only intended to operate upon
property which has come within the Ter
ritorial jurisdiction, and that domestic
animals once brought within the Terri
torial limits are made subject to the in
ternal police regulations in the same
manner as any property already in the
Territory. The question was set at rest
in the case of Gibbons v. Ogden. The
defendant had, under an act of the New
York Legislature, secured the exclusive
privilege of navigating the waters of the
State of New York with boats moved by
fire or steam for a term of years, and
Gibbons the plaintiff in error, had two
steamboats which were actually employed
in running between New York and
Elizabethtown in violation of the exclu
sive privilege conferred upon complain
ant Ogden.
Gibbons held a license under an Act
of Congress allowing him to carry on the
coasting trade, and insisted on his right
in virtue of such license to navigate the
waters between Elizabethtown and the
City of New York, the said acts of the
legislature of the State of New York to
the contrary notwithstanding.
Gibbons was enjoined by the courts of
New York from using his boats in navi
gating the waters of New York, and this
decision was sustained by the highest
tribunal in the State, on the ground that
the State Legislature had the power to
control the navigation of the waters
within the State. The case was taken
to the Supreme Court of the United
States by a writ of error.
Chief Justice Marshall, in rendering
the opinion of the Court, disposes of the
question in relation to the power of Con
gress to regulate commerce, as follows:
"In reguhting commerce with foreign
nations, the power of Congress does not
stop at the jurisdictional lines of the
several States. It would be a very use
less power if it could not pass those lines.
The commerce of the United States with
foreign nations is that of the whole
United States.
"If Congress has the power to regulate
it, that power must be exercised wher
ever the subject exists.
"What is commerce among the States,
and how is it to be conducted?
"Cap a trading expedition between two
adjoining States commence and term
inate outside of each?
"Commerce among the States must of,
necessity be commerce with the States.
"The power of Congress then, whatever
it may be, must be exercised within the
Territorial jurisdiction of the several
States.
"It is the power to regulate, that is, to
prescribe, the rule by which commerce
is to be governed. This power, like all
others vested in Congress, is complete in
itself, may be exercised to its utmost ex
tent, and acknowledges no limitations
other than are prescribed in the Con
stitution." Gibbons v. Ogden, 9 Wheaton, 183.
It is proper to remark here that Con
gress passed acts as early as 1796 and
1799 conferring power upon and direct
ing the officers of the General Govern
ment to conform to and assist in the
execution of the quarantine and health
laws of a State.
It is conceded that such laws may be
considered as "flowing fram the acknowl
edged power of a State to provide for the
health of its citizens." But in all the
provisions made by Congress upon this
subject there is unmistakable evidence
that Congress regards its rights as re
served to control the State laws so far as
it may be necessary to control them in
regulating commerce.
Mr. Justice Johnson in his opinion
concurring with Chief Justice Marshall
in Gibbons v. Ogden, in referring to the
distinct substantive powers of Congress
and the States in relation to the same
subject, uses the language:
"The .same .bale of goods, the same
cask of provisions, or the same ship that
may be thVsubject of commercial regula
tion, may also be the vehicle of disease,
and the health laws that require them to
be stopped and Ventilated are no more
intended as - regulations on commerce,
than the laws which permit their impor
tation, are intended to Jnoculate the
community with disease.,""
But the learned Justice does not dis
miss the subject, without holding that:
"An absolute control is eiven over
State legislation upon the subject, as fat
as that legislation may be exercised, so
as to affect the .commerce of the
country." ' ' -
9 Wheaton, 236.
We have pursued this subject of the
constitutional limitation upon the power
of the States to regulate commerce with
foreign nations or among themselves, at
the risk of stating propositions which are
axiomatic to every constitutioual lawyer,
in order that the gentlemen composing
the Live Stock Sanitary Commission of
Arizona may clearly apprehend the dis
tinctions which it is our duty to point out
between the powers which a State may
exercise in relation to its internal regula
tons and those which are necessarily de
nied to a Territorry, owing to the pecu
liarity of its organization.
While a State has certain inherent'
powers, a Territory as a mere geograph
ical division of the body politic which
constitutes the nation, hasPno inherent
powers whatever. The area of the Terri
tory may be increased or diminished at
the sovereign wilt of Congress. Appro
priations for carrying on the Territorial
governments'may be general or special
in their' character, and while certain gen
eral laws are equally applicable to the
Territory as to the countty at large, yet
that which is recognized and ratified as a
law in one Territory may be eschewed
and annulled in another, and so long as
the constitutional guaranty of a republi
can form of government is maintained
and respected, Territories may be said to
be at the sport or caprice of the dominant
nolitical majority of Congress. j
If, therefore, Congress has adopted ex
press provisions of law in relation to the
matters of quarantine against diseased
domestic animals or in relation to any
general police regulation to prevent the
spread of disease and t protect property,
any action by the Territory which inter
feres with the same or provides another or
different regulation upon the same, Is
null and void. '
To go a step further. If Congress has
spoken upon the subject of quarantine
regulations in respect to the importation
of domestic animals, by Acts applicable
generally to the United States, then the
Territorial Legislature becomes not only
divested of power to act in the premises,
but it is absolutely without any power
over the subject 'matter thus legislated
upon.
"It is not doubted that Congress has
the power to go beyond the general reg
ulations of commerce which it is accus
tomed to establish and to descend to the
most minute directions if it shall be
deemed advisable; and that to whatever
extent ground shall be covered by those
directions, the exercise of the State
power is excluded.!'
Cooley's Constitutionaf Ltmitat's, 724.
Mobile v. Kimball, 102 U. S., 691.
We are thus brought directly to the in
quiry, what legislation, has been adopted
by Congress on the subject upon which
the Legislative Assembly' of the Terri
tory of Arizona has assumed to exercise
its power by enacting the sections of the
statute under consideration?
In 1 866, Cengress adopted the follow
ing provision:
"The' importation of neat cattle and
the hides of neat cattle from any foreign
county into the United States, is pro
hibited: Provided, that the operation of
this section shall be suspended as to any
foreign country or countries, or any part
of such country or countries, whenever
the Secretary of the Treasury shall
officially determine and give public
notice thereof, that such importation will
not tend to the introduction or spread of
contagious cr infectious diseases among
the cattle of the United States; and the
Secretary of the Treasury ts hereby
authorized and empowered, 'and it shall
be his duty to make all necessary orders
and regulations to carry this order into
effect, or to suspend the same as therein
provided, and to send copies thereof to
the proper officers or agents in the
United States, and to such officers or
agents of the United States in foreign
countries as he shall judge necessary."
Sec. 2493, R. S. U. S.
The President of the United States,
whenever in his judgment the importa
tion of neat cattle and the hides of neat
cattle may be made without danger of
the introduction or spread of contagious
or infections disease among the cattle of
the United States, may by proclamation
declare the provisions of the preceding
section to be inoperative, and the same
shall be afterward, inoperative and of no
effect from and after thirty days from
the date of said proclamation.
Sec. 2494, R. S. U. S.
Sec. 2495 irtovides for' 'the conviction
and punishment pf apy person convicted
of a violation of any of the provisions of
the two preceding sections.
In Mar.ch, 1883, an Act of Congress
entitled "An Act to Reduce Internal
Revenue, Taxation," and for other pur-,
poses was passed, by which it was pro
vided, that on and after the first day of
July, 1883, Sections 2494 and 2495 in
said Act' should be substituted in place
of the three sections above quoted.
The change re.-enacted the former pro
visions and repealed the power of the
President to declare any of the pro
visions of the Act inoperative.
United States Stat, at Large 1881,
1883, Chap. 12l,Secs.2494 and24o6.
In the same year, under ".Miscella
neous objects under the Treasury De
partment," congress appropriated nity,
thousand dollars to "enable the Secre
tary of the 1 Treasury to prevent the
spread of disease among .neat cattle, tto
establish regulations for the.safe convey
ance of cattle from the interior to the
seaboard, and to establish quarantine
stations and provide necessary shelter
for neat cattle imported, at such ports
as he may deem necessary." .
U. S. Stat, at Large, 1881-1883, Chap.
143 (Sanitary Regulations.)
The rules and regulations of the De
partment the UnitedStates Govern
ment intrusted with the duty of exe
cuting the statutes above cited, have the
force and effect of the laws themselves.
The fact remains that' the Secretary of
the Treasury has prescribed minute and
detailed regulations for the purpose;of
quarantining neat cattle when imported
into the United States.
In the general regulations under the
Customs and Navigation laws of the
United States issued by the Treasury
Department in 1884. the Secretary of the
Treasury declares ( Act 1801 that;
Although Sections 2494 and 2495 of
me nevisea statutes as incorporated in
Act of March 3d, i883,arenot materially
changed, they have the force of new laws
and the Secretary of the Treasury by
virtue thereof hereby gives public notice
that he has officially determined that the
importation of neat cattle, subiect to the
corditions hereinafter perscribed.will not'
irna totne introduction or .spread of in
fectious or contagious diseases among
the cattle of the United States. The
operatious of the sections of law prohib
iting the importation of neat cattle and
the hides of neat cattle into the United
States are therefore suspended, but upon
the condition that importers and owners
of neat cattle shall submit' to and abide
by such orders and regulations as the
Secretary ef the Treasury has prescribed
or may from time to time prescribe, to
carry the above laws into effect.
On the third of March, 1885, Congress
passed an Act (Chap 338) entitled "An
Act making an appropriation for thi
Agricultural Department for the fiscal
year ending June 30, 1886, and for othefr
purposes." By this Act it is provided
in relation to ."Quarantine Stations 0
Neat Cattle," that. this Department shall
have power: , I
"To establish and maintain quaranj
tine stations and to provide proper
shelter for, and care of neat cattle, at
such ports as may be deemed neces
sary." The appropriation to render this pro
vision operative was not applicable until
the first day of July, 1885, since which
time the Department of Agriculture has
had jurisdiction in all matters concern
ing the quarantine of imported cattle.
This latter Act does not affect the
power reposed by Congress in the Secre
tary of the Treasury to make rules and
regulations, concerning the importation
of neat cattle from foreign countries, it
simply transfers to the Department of
Agriculture the duty of providing "proper
shelter for, and care of," the cattle im
ported, which, under the regulations of
the Treasury. Department are subject to
quarantine.
It will thus appear that the power of
Congress in relation to the importation
of cattle into the United States has been
fully exercised. This excludes the right
of the Territorial Legislature to exercise
any power over the subject. ' , ",.
We are in full accord with the doctrine
laid down by Mr. Cooley in his work
upon "Constitutional Limitations," that
in declaring a law unconstitutional, the
task is a delicate one, and only to be
entered upon with reluctance and hesita
tion, but we have endeavored strictly to
follow his injunction "to proceed with
due caution and circumspection, and
under a proper sense as well of our own
responsibility as of the respect due to the
fiction and judgment of the law
makers."
The grave duties imposed, upon the
Commission, by virtue of the provisions
in question under the Governor's Procla
mation, are calculated to lead to conse
quences of a momentous character if
performed without authority of. law.
This has been an additional incentive
to us, to examine the questions, submitted
with great care.
We pronounce the sections of the act
in question repugnant to the Constitu
tion of the United States, and therefore
void in conferring any authority upon the
Live Stock Sanitary Commission of Ari
zona, in relation to the importation of
cattle into the United States.
Having thus disposed of. the question
in relation to the importation of cattle
from foreign countries, we shall proceed:
to the discussion of the remaining ques-,
tion, as to the validity of the sections,
under consideration, in relation to the
transportation of cattle from the States
and Territories into this Territory.
Chapter 60, U. S. Statutes of 1884,
Sec. 1 provides that the Commis
sioner of Agriculture shall organize in
his department a bureau of animal in
dustry whose duty if shall be to investi
gate and report upon the condition of
the domestic animals of the United
States, the causes of contagious, infec
tious and communicable diseases among
them, and the means for the prevention
and cure of the same. H
Sec. 2 provides for the appointment
of agents whose duty it shall be under
the instructions pf the Commissioner of
Agriculture, to examine"and report upon
the best method of treating, transporting
and caring for animals, and the means
to be adopted for the suppression and
extirpation of pleuro-pneumonia, and to
provide against the spread of other dan
gerous, contagious, infectious and com
municable diseases. , '
Sec. 3 provides that it shall be the
duty of the Commissioner of, Agriculture
to prepare such rules and regulations as
he rriay deem necessary for the speedy
and effectual- suppression and extirpa
tion of said diseases, and to certify such
rules and regulations to the executive
authority of each State and Territory,
and invite said authorities to co-operate
in the execution and enforcement of this
Act.
Whenever the plans and methods of
the Commissioner of Agriculture shall
be accepted bv anv State or TVrrlfnrw in
I which pleuro-pneumonia or other con
tagious,- intectious or communicable
disease is declared to exist, or such State
or Territory shall have adopted plans or
methods for the suppression and extir
pation ot said diseases, and such plans
and methods shall be accepted by the
Commissioner of Agriculture, and when
ever the Governor of a State or other
properly constituted authorities signify
their readiness to co-oper..te for the ex
tinction of any contagious, infectious or
communicable disease in conformity with
the provisions of this Act, the Commis
sioner of Agriculture is hereby author
ized to expend so much of the money
appropriated by this Act as may be nec
essary in such inveitigations and in such
disinfection and quarantine measures as
may be necsssary to prevent the spread
of the disease from one State or Terri
tory into another.
Sec. 4 relates to the transportation
of live stock from all parts of the United
States to ports from which live stock are
exported, and clothes the Secretary of
tne ireasury with full power to regulate
the same.
Sec. 5 provides for the prevention of
the exportation of diseased cattle from
any part of the United'States, and con
fers the necessary power upon the Sec
retary of the Treasury in relation thereto.
Sec. 6 prohibits railroad companies
and owners or masters of vessels from
receiving for transportation, or trans
porting from one State or Territory to
another, any live stock affected with con
tagious, infectious or communicable
diseases, nor shall any person, company
or corporation drive on foot or transport
in private conveyance, from one State
or Territory to another, any live stock,
knowing them to be affected with any
contagious, infectious or communicable
disease, and especially the disease known
as pluero-pneumonia.
Sec. 7 provides fines and penalties
for a violation of the provisions of Sec
tion 6.
It is further made the duty of the
several United States District Attorneys
to prosecute all violation of this Act
which shall be brought to their notice or
knowledge.
One hundred and fifty thousand dollars
.was appropriated for the purpose of car
rying into effect the provisions of the
act.
It will be perceived that Congress has
thus provided a complete system and one
uniform plan of police protection in" re
lation to the subject upon which the
Territorial Legislature has sought to ex
ercise its powers.
In futherance of the provisions above
cited, Congress,on March 3, 1883, passed
an Act establishing within the Depart
ment of Agriculture, the "Bureau of
Animal Industry," for carrying out the
provisions of the Act of May 29, 1884,
above cited, and appropriated one hun
dred thousand dollars for the purpose of
preventing the spread of pleuro-pneumonia.
Referring now to the language of Sec
tion 6 of the Act of May 29, 1884 :
Have the plans and methods of the
Commissioner of Agriculture been ac
cepted by the Territory?
Has the Territory adopted plans and
methods for the suppression and extirpa
tion ( "said diseases" which have been
accepted by the Commissioners of Ari
zona? Has the Governor signified his readi
ness to co-operate with the Commis
sioner of Agriculture for the extinction
of any contagious, infectious or commu
nicable disease, in conformity with the
provisions of said Act?
Congress has spoken on the subject.
It has thrown the door wide open and
with liberal hand. '
The failure of our Territorial Legisla
ture to recognize the provisions enacted
by Congress is without excuse.
The attempt to impose restrictions and
limitations upon the importation of cattle
from other States and Territories, when
Congress has exercised its powers in reg
ulating the subject, is without authority.
The Sections of the Statute which
assume to confer power upon your Com
mission, and the proclamations of the
Governor are, for the reasons abbve set
forth, repugnant to the Constitution of
the United States, and are therefore
void. Very respectfully yours,
Herring & Herring, Attorneys.
Tombstone, Oct. 31, 1887.
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More economical then the ordinary kinds
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St., N. Y.
DANCING ACADEMY.
Baron Bros, will open a dancing
school on Tuesday evening next at the
Skating Rink. For particulars and terms
inquire at tlis rink or at the barber shop.
A soiree Saturday evenings. Good music
always in attendance.
PPM
W ROYALKt?ia J
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