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Inthe Supreme Gourt ofthe United States,

OcroBER TERM, 1911.

THE UNITED STATES, PLAINTIFF IN ERROR,
v.
THE BALTIMORE AND OHIO SOUTHWEST-

ern Railroad Company.

No. 464.

IN ERROR TO THE DISTRICT COURT OF THE UNITED STATES
FOR THE SOUTHERN DISTRICT OF OHIO.

BRIEF FOR THE UNITED STATES.

STATEMENT.

The Baltimore and Ohio Southwestern Railroad
Company was indicted in the Southern District of
Ohio for violations of the act of March 3, 1905 (83
Stat., 1264), entitled ‘“‘An act to enable the Secretary
of Agriculture to establish and maintain quarantine
districts, to permit and regulate the movement of
cattle and other live stock therefrom, and for other
purposes.”

THE INDICTMENT
was in three counts, each charging a different offense,
but the offenses were all of the same nature. It will
be sufficient for the purposes of this case to consider

only the first count. (Rec., 2-4.)
71 ge Wea

This charged that the Gompany was a common Gar
ner owning and: operating: a tine Of rairoad ia the
State oF Ohio and other States, and that this line wags
aw connecting one over whieh mbersbabe shipments of
live shock oreiabing tn the State of Nwentueky and
consigned bo the Union stock Yards im the city of
Cinginnats, om the State of Ohio, were carried and
lransported to then destination

Nhat the secretary of Agriculture had determined
(he faek that a contagious and communicable disease
known as seabies existed amone sheep in the State of
Kentucky, and on the Sth day of August, 1909, mace
and promuleated an order and reeulation known as
amendment 4 lo rule 3, revision t, B.A.T. Order 146,
establishing a quarantine of the entire territory of the
State of Kentucky, whieh quarantine became elective
on and alter the 16th day of August, 1909;

That the Secretary of Agriculture, pursuant to law,
had made and issaed certain reeulations effective on
nnd after the toth day of April, 1907, which provided
for and woverned the taspection, disinfection, certifi
Gadion, treatment, handling, and the method and
manner of delivery and shipment of sheep tron quate
anbined States or Perritories mto any other State or
Territory, and that these provisions, requirements,
and reeulations, being st to 387, B.A.T. Order 143,
were tncorporated into and made a part of the order,
“wmendment 4 to rale 8, revision 1, B. A, I. Order 146;

That the Secretary of Agriculture gave notice of
the establishment of quarantine in the State ob Wwen-

bucky and of the making and issuance of the rules

*)
“

and regulations heretofore referred to, by sending
printed copies to the railroad company, receipt of
such copies being acknowledged by the general man-
ager of the company;

That the Secretary of Agriculture also gave notice
of the establishment of the quarantine and of the
orders, rules, and regulations hereinbefore mentioned
by publication in newspapers of general circulation
in the State of Kentucky ;

That on August 2, 1910, 4 shipment of 151 sheep
was made at Danville, in the State of Kentucky, and
within the quarantined area, by W. TH, Lillard, con-
signed to Greene, lambry & Company, at Cincinnats,
in the State of Ohio; that the sheep were loaded and
delivered for transportation to The Cincinnati, New
Orleans & Texas Pacific Railway Company and taken
by that company over its line to # point in the city
of Cincinnati, in the State of Ohio, and there deliv-
eved to the Baltimore and Ohio Southwestern Rail-
road Company, which in turn took them over its line
of road in the State of Ohio to the Union Stock Yards,
city of Cincinnati, the destination of the shipment,
and delivered them to the consignees;

That the car containing this shipment of sheep,
while it was being handled by the Baltimore and Ohio
Southwestern Railroad Company, did not have af-
fixed {0 both or either of its sides, or at all, placards
hearing the words “Dipped scabby sheep’ or the

words “ léxposed sheep for slaughter,’”’ as required by
the orders and regulations of the Secretary of Agri-

culture; and the wayhills, conductors’ manifests,

4

memoranda, and bills of lading pertaining to the
shipment did not have written or stamped upon their
face the words “ Dipped scabby sheep” or “ Exposed
sheep for slaughter,’’ as required by the orders and
regulations of the Secretary of Agriculture; contrary
to the form of the statute in such case made and pro-
vided, and against the peace and dignity of the United
States of America.

The defendant pleaded not guilty to the indictment
(R., 10), but the court disposed of the case in the
manner disclosed by the following

ENTRY OF JUDGMENT.

It appearing to the court that an indictment
has been filed herein charging the defendant,
The Baltimore and Ohio Southwestern Rail-
road Company, with a violation of the act of
Congress of March 38rd, 1905, 33 Statutes,
1264, and the rules and regulations of the Sec-
retary of Agriculture made and promulgated
thereunder, in that said defendant, a common
carrier, did receive and transport in and about
the city of Cincinnati, in the State of Ohio,
certain shipments of sheep originating in the
State of Kentucky, which last mentioned State
had theretofore been quarantined in accord-
ance with law for “Scabies in sheep;” that
said defendant did not receive said shipments
of sheep in said quarantined State of Ken-
tucky and did not transport the same there-
from, but did receive and transport the same
wholly and entirely outside of said quaran-
tined State, and after the same had been
transported therefrom by another carrier;

5

And it further appearing to the court that
a fundamental point of law involved in this
case has been heretofore decided by this court
adversely to the United States in cases similar
in all respects to the one now before the court,
to wit, in cases Numbers 730, 731, and 736 in
this court, entitled The United States of
America versus The Baltimore & Ohio South-
western Railroad Company, wherein demur-
rers to the informations were sustained; it
being the decision of this court therein that
the defendants could not be held to answer
said charge, because said informations upon
their faces showed that said defendant had
not received the shipments of sheep in question
in the quarantined State of Kentucky and had
not transported the same from said quaran-
tined State, but that said defendant had
received said shipments of sheep at a place,
and had transported the same through places,
wholly and entirely without said quarantined
State of Kentucky; and that such facts, in the
opinion of this court, did not constitute a vio-
lation of the aforesaid act of Congress;

Now, therefore, this court, inquiring into
this case upon its own motion and for the pur-
pose of enabling the United States to have the
question here at issue reviewed, doth find that
the indictment herein is not well founded in
point of law and doth hereby quash the same
and each count thereof, for the reasons herein-
before mentioned; and it is the judgment of
this court that the indictment herein be, and
the same hereby is, dismissed. (R., 10, 11.)

6

The case is brought here by the Government by
writ of error to review this judgment and ruling of
the District Court.

In an appendix hereto we set out—

1. The act of March 3d, 1905, except the fifth sec-
tion thereof, which section has no possible relevancy
to the case.

2. The report of the House Committee on Agriculture
upon the bill. This report was approved and adopted
_ by the Senate Committee on Agriculture as its own.
The bill, except as to its fifth section, not relevant
here, was passed into law in the precise form in which
it was reported.

3. Regulations of the Secretary of Agriculture made
and promulgated April 3d, 1907, as Order No. 143 of
the Department of Agriculture, B. A. I. We set
these out from No. 29 to 37, both inclusive, these
numbers being the entire general code of “ Regula-
tions to prevent the spread of scabies in sheep.”

4. Amendment 4 to Rule 3, Revision 1, effective on
and after August 16, 1909. This is the order de-
claring the existence of scabies among sheep in Ken-
tucky and declaring a quarantine in the State.
Regulations 31 and 32 are printed on the reverse side
of this order, but are not set forth in this connection
in the appendix, because they are contained in the
regulations printed under the third head.

The sole question considered by the lower court
was that with respect to the construction of the stat-
ute, and the determination of the court was that the

7

statute applied only to the carrier taking the sheep
in the quarantined State and transporting them
without the State, and did not apply to any succeed-
ing carrier who received the sheep outside of the
quarantined State and continued or completed the
transportation of them to the point of their destina-
tion. The Government contends for the

PROPOSITION

that the statute applies to the shipment of sheep
from a quarantined State or Territory into any
other State or Territory of the Union and to every
carrier participating in such shipment, not alone
the initial carrier who takes up the sheep in the
quarantined district and carries them without, but
as well to every succeeding connecting carrier doing
any part of the work of transportation necessary
to bring the shipment from its place of beginning
to its place of destination.

ARGUMENT.

The act under consideration was H. R. 17589. The
same bill was introduced in the Senate as Senate bill
7167. The House bill became law.

The act has been before the courts a number of
times. In three reported cases the question here
involved was presented for determination and de-
cided in two of them adversely and in the third and
latest favorably to the Government.

The question is in itself one of great practical
importance, and the diversity of ruling in the lower
courts makes a definite and final decision upon it
highly desirable.

8

This court took notice of the act in Asbell v. Kansas
(209 U.S8., 251), but had occasion to say little more
than that “large powers to control the interstate
movement of cattle hable to be afflicted with a com-
municable disease have been conferred upon the
Secretary of Agriculture by the act of February 2,
1903, 32 Stat. 791, and the act of March 3, 1905, 33
Stat. 1264” (p. 257).

The first reported prosecution under the act was
in United States v. L. & N. R. R. Co. (165 Fed., 936),
in the Western District of Kentucky; but all the mat-
ters there passed upon related to the formal suffi-
ciency of the indictment, and as no such questions
are here involved that case calls for no consideration
at the present time.

In United States v. Louisville & Nashville Railroad
Company (176 Fed., 942) the application of the law
to connecting carriers was not involved. The case
none the less calls for consideration because the
court held, upon the authority of United States v.
Grimaud (170 Fed., 205), that a charge of crime
could not be based upon a violation of the regula-
tions provided for in section three of the act, and
that section four was therefore of no practical effect.

But the ruling of the court in the Grimaud case
was reversed by this court at the October Term, 1910,
and a violation of the regulations there involved
was held to be a violation of the law pursuant to
which they were made. (United States v. Grimaud,
220 U.S., 506.)

9

The analogy between the Grimaud case and the
one at bar is a very close one. There is in neither
case a delegation of lawmaking power to the Secre-
tary. In each case the crimes or offenses punish-
able under the act are defined by the act itself. In
the present case the duties imposed upon the Secre-
tary are plainly administrative in their nature.

Section 1 simply imposes upon the Secretary the
duty to ascertain and declare the existence of con-
tagious diseases in live stock in any State or Terri-
tory as a fact, and requires that upon the ascertain-
ment and declaration of the fact he shall establish a
proper quarantine and give notice thereof to the
transportation companies and the general public.

Section 2 prohibits the receiving for transportation,
or transporting, live stock from any quarantined
State or Territory into any other State or Territory,
except as later provided in the act.

Section 3 authorizes and directs the Secretary of
Agriculture, when the public safety will permit, to
promulgate rules and regulations in accordance with
which live stock may be inspected, disinfected, cer-
tified, treated, handled, delivered, and shipped from
a quarantined State or Territory into any other
State or Territory, and requires that notice of these
rules and regulations shall be given to the transporta-
tion companies and to the general public. There is
nothing in this that is in the nature of enacting law.
The proper safeguarding of live stock which is either
diseased or has been exposed to disease, when this is
to be shipped from one part of the country to another,

10

is plainly an administrative matter properly imposed
upon the Secretary of Agriculture, because it requires
expert knowledge which, it must be presumed, repre-
sentatives of the Department of Agriculture possess.
The particular regulations will depend upon the
nature of the disease and its extent, and are therefore
to be adapted to each particular emergency.

Section 4 of the act qualifies the otherwise absolute
ban upon a shipment of live stock from a quarantined
State into another State imposed by section 2, and
provides, first, that live stock may be moved from a
quarantined State into any other State under and in
compliance with the rules and regulations made and
promulgated by the Secretary of Agriculture; and,
second, that it shall be unlawful to move live stock
from a quarantined State into any other State or
Territory in any manner or method or under condi-
tions other than those prescribed by the Secretary
of Agriculture.

Section 6 punishes any violation of section 2 or
section 4 of the act.

Plainly it is Congress which defines the offense, for
it is Congress that has directed the Secretary to make
the regulations in accordance with which live stock
may be moved out of a quarantined State and it is
Congress that has prohibited their movement except
in compliance with those regulations.

The House Committee carefully considered the
adjudications upon the acts of 1884 and 1903, as
their report discloses, and they had especially in
mind that the power of the Secretary could not be

11

extended to the making of regulations which in
themselves had the force of law or which did more
than administer the law which Congress enacted.

Under the law governing forest reserves there was
no absolute right to anybody to make use of the
reserves, but as there might be a use of them by
individuals which was not opposed to the purposes
of the law, the Secretary of Agriculture was author-
ized to prescribe regulations under which such use
might be enjoyed, and a violation of these regulations
was declared by the law to be a crime. Grimaud was
held to have offended this law because he pastured
his flock in a reserve in disregard of the regulations
prescribed by the Secretary.

In the case at bar Congress, in the exercise of
undoubted powers, dealt with the subject of the
interstate movement of cattle which were afflicted
with or had been exposed to a communicable disease.
It determined that such movement could not prop-
erly be left free or at the will of the owners, and yet
to prohibit it altogether and in all cases of a quar-
antine would entail great and unnecessary hardship.
The exigencies of each case could not possibly be
foreseen and provided for in advance by law. It
was given by the law to the Secretary to determine
as a matter of fact whether the disease existed,
and thereupon to establish a quarantine, and in
like manner it was given to him by the law to deter-
mine as a fact of the same kind whether in any case
“the public safety would permit” the movement of
the cattle from the district of quarantine into another

12

State; and, if so, to prescribe the precautions with
which such movement should be attended. The
interstate movement in other manner from a quaran-
tined district was made an offense by the law. The
Secretary was empowered simply to ascertain as a
fact, what was a matter of fact, and might exist
at one time or place and not at another, the exist-
ence of the conditions which called the law into
operation, and then to administer the law in such
manner as the conditions of fact ascertained by
him required.

This was in strict conformity with what was said
in Field v. Clark (143 U.S., 649), and cited with
approval in the Grimaud case, viz:

* * & “The legislature cannot delegate
its power to make a law; but it can make a law
to delegate a power to determine some fact or
state of things upon which the law makes, or
intends to make, its own action depend. To
deny this would be to stop the wheels of gov-
ernment. There are many things upon which
wise and useful legislation must depend which
cannot be known to the law-making power,
and, must, therefore, be a subject of inquiry
and determination outside of the halls of
legislation’”’ (p. 694).

Sections three and four of the law are therefore
valid, and are as much to be taken into account in
determining what are offenses against it as are sec-
tions one and two.

United States v. El Paso and N. E. Rk. R. Co. (178
Fed., 846), like the case at bar, was an indictment of a

13

connecting carrier who took the shipment from the
initial carrier outside the quarantined State and
carried it to its destination. The case was con-
sidered solely with reference to sections one and two
of the law and the connecting carrier held not to be
within their scope. The opinion of the court is sup-
ported by no authority and by no argument, and as
to this question is in full as follows (pp. 847, 848):

Owing to the pressure of official engagements
the court can do little more than state its con-
clusions.

1. It was the intention of Congress, as mani-
fested by the second section of the act, to
punish only the carrier which transports cattle
from a quarantined district, and not the car-
rier to which cattle may be subsequently
delivered by the first carrier for transportation,
although they may be from such a district.
To be more specific: According to the alle-
gations of the indictment, the Chicago, Rock
Island & Pacific Railway Company received
in Texas county, Okl., and transported to
New Mexico, and there delivered to the
defendant, the two head of cattle in question.
The cattle were then transported by the
defendant to El Paso, Tex. Construing the
law, as applied to the allegations of the indict-
ment, the carrier amenable to punishment, if
justified by all the evidence of the case, would
be the Chicago, Rock Island & Pacific Railway
Company, and not the defendant, since the
latter did not transport, from a quarantined
district, cattle to be transported into any state
or territory. In other words, the initial car-

14

rier, receiving or transporting the cattle, and
not subsequent ones, would be punishable
under the act.

United States v. C., B. & Q. R. R. Co. (181 Fed.,
882) was also the case of a connecting carrier, and the
ruling was the same as in the preceding case.

The cattle were shipped from Maud, in the State of
Oklahoma, a quarantined district, through Kansas
to St. Joseph, Missouri. The regulations required
that the car should be placarded as containing
“southern cattle,” and that the waybills, etc., should
so designate them. In fact, the car was not placarded
at all, and the waybills, etc., designated the shipment
as being ‘‘native cattle.’”’ The Missouri, Kansas &
Texas Railway Company was the initial carrier and
was necessarily cognizant of and participated in this
false description in the billing and was also responsible
for the failure to placard the car. This company took
the cattle in Oklahoma, through Kansas to Kansas
City, Missouri, there delivering them in the original
car to the defendant company, which continued and
completed the transportation to St. Joseph, Missouri.
The defendant had no knowledge of the kind of cattle
being shipped, and no information as to the origin of
the shipment except as it was advised by the way-
bills.

The court commented upon the failure to prosecute
the initial carrier, which apparently had been guilty
of an intentional violation of the law, but why
it was not proceeded against does not appear.

15

In reaching the conclusion that the defendant was
not guilty, the court did not consider sections 3
and 4 of the law at all, and in construing section 2,
which alone it took into account, left quite out of view
the purposes of the law. Indeed, after eliminating
all the sections of the law save one, the remaining
section is not fully quoted, and it is not surprising
that after so much and such severe surgery there is
little life left in the law. The court thus states the
statute, as it applies to railroad companies:

‘(hat no railroad company =.'. . shall
receive for transportation . . . from any
quarantined state or territory, etc., into any
other state or territory . . . any cattle
or other live stock, except as_ hereinafter
provided.”

Upon the statute thus stated the court comments
(p. 885):

It is only the railroad company that re-
ceives “for transportation from any quaran-
tined state into any other state or territory any
cattle or other live stock” that may be guilty
of a misdemeanor provided for in the sixth
section of the act. Such transportation, as
applied to the situation under consideration,
must be interstate to give jurisdiction to this
court over the offense. It was the Missouri,
Kansas & Texas Railway Company that re-
ceived the cattle in the State of Oklahoma for
transportation. It crossed the line with the
cattle, bringing them through the States of
Oklahoma and Kansas into Kansas City, Mo.,

16

where the car was transferred by it to the de-
fendant, which only carried the car from Kan-
sas City to St. Joseph, within the state of
Missouri.
But the statute, section 2, limited to railroads, in
fact, reads:

That no railroad company . . ._ shall
receive for transportation or transport from
any quarantined State or Territory
into any other State or Territory
any cattle or other live stock, except as here-
inafter provided. (33 Stat. 1264).

Receiving cattle for transportation from Oklahoma
to Missouri may well be said to be the act only of the
initial carrier, but transporting them from Oklahoma
to Missouri, when that requires passage over two
lines of railroad, operated by two companies, is an
act participated in by them both and which could not
be completed except by their cooperation.

The court proceeds (pp. 885, 886):

The succeeding clause of section 2 of the
statute is as follows:

“Nor shall any person, company or corpora-
tion deliver for such transportation to any
railroad company, etc., nor shall any person,
company or corporation drive on foot or
cause to be driven on foot, or transport in
private conveyance or cause to be transported
in private conveyance from a quarantine
state or territory, etc., into any other state
or territory, etc., any cattle or other live
stock, except as hereinafter provided.”

1%

Thus again indicating that only the person,
company, or corporation that drives or causes
to be driven or transported in private con-
veyances, etc., such live stock “from a quaran-
tine state, etc., into another state, etc., any cat-
tle or other live stock,’’ is subjected to punish-
ment by the statute. Nothing whatever is ex-
pressed by the statute respecting the liability
of any connecting carrier or driver of the cattle
after they pass beyond the quarantine district
into another state or territory. Suppose that
the shipment in question had been from Maud,
Okl., to Chicago, and been carried by the
Missouri, Kansas & Texas Railway Company
in its car through the States of Kansas, Mis-
souri, and Illinois, with the car not placarded
and the waybill just as the one in question,
would there have been more than one offense?
The only offense for which it could have been
indicted would have been for shipping the
cattle from the state of Oklahoma into another
state without complying with the regulations
of the Department of Agriculture. The offense
was completed by the last-named act the
moment it crossed the line between Oklahoma
and Kansas. Can it make any difference,
under the language of the statute, that after
the Missouri, Kansas & Texas Railway Com-
pany got across the line into Kansas it turned
over the transportation of the car for carriage
to its destination to another carrier? The
statute has neither in terms nor spirit subjected
both the carrier that brought the cattle out
of Oklahoma into Missouri and the connecting

i)

1%

carrier, who completes the unfinished part. of
the transportation inside of the latter state,
to punishment.

Undoubtedly in the case supposed by the court
the Missouri, Kansas and Texas Railway Company
would be guilty of but one offense, for the transporta-
tion of the cattle was but one act or transaction and
participated in by but one carrier. And this offense
was ina sense complete when the company brought
the cattle into Kansas from Oklahoma without the
required placarding and billing, even though there-
after and before reaching Chicago it did comply with
the regulations. A man driving for ten miles over
a highway upon which the rate of speed is restricted
violates the law if he drives for the first mile at a pro-
hibited rate, and if he so drives for the entire ten
miles he continues his offense, but he does not
multiply it by ten. As this court said in the Snow
case (120 U.8., 274, |. ec. 284), “it is but one entire
offense, whether longer or shorter in point of dura-
tion.’ Acts continuous in their nature, as the ex-
ercise of a trade or calling, in violation of law, or the
maintenance of a nuisance, constitute but one offense,
no matter how protracted the offending, unless the
law itself provides, as it may, for more. So the
Missouri, Kansas and Texas Railway Company
would be guilty of but one offense though it disre-
garded the quarantine throughout the transportation
of the cattle, and it would have been equally euilty
if it disregarded the quarantine for any portion of the
way.

19

The baker who kept open his shop on Sunday was
guilty of but one offense, although he kept it open
all day and sold many loaves of bread. His offense,
too, was complete, in a way, when he sold his first
loaf. He continued, but did not multiply it. If,
however, he had conducted the shop in the morning
and called in his son to attend it in the afternoon,
the son would also have heen guilty. The act of
keeping the shop open on Sunday, considered as an
offense, would now not be single and indivisible, or,
if so, still as it was a misdemeanor, all who partici-
pated in it would be guilty as principals.

The court assumes that because there was a com-
pleted offense when the Missouri, Kansas and Texas -
Railway Company crossed the State line with the
cattle there could be no farther offending with re-
spect to them by anybody, not even by the Mis-
sourl, Kansas and Texas Company.

The baker offended with every loaf of his bread
that he sold on the Sunday, none the less that he
could be convicted and punished for but one offense.
The charge against him, although single, could be
supported by proof of any sale made by him, and
also by proof of several of his sales, or by proof of
all of them.

So the railroad company would continue to offend
every mile it progressed, without placarding the car,
even though it incurred no further penalties.

This must be so, unless the Jaw restricts the appli-
cation of the quarantine regulations to the portion
of the shipment from the point of origin in the quar-

20

antined State to the crossing of the adjoining State
line.

If, however, the quarantine regulations apply to
the interstate shipment in its entirety, then there
may be as many offenders against the law as there
are carriers concerned in the shipment. The vice of
the adverse decisions in the district court is that they
cut in two both the law and the shipment, and deal
with but a half of each.

The last case is that of The United States v. The
Southern Railway Company (187 Fed., 209).

Here the entire act was taken into consideration,
and the shipment, a through one, from New Market,
Alabama, to Greenville, South Carolina, was dealt
with as one continuous act of interstate transporta-
tion, and, it having been made in violation of the
regulations of the Secretary, the connecting carrier
as well as the initial carrier was held to be guilty.

And considering the statute in its entirety and the
purposes for which it was enacted, the court had no
doubt that it was applicable to an interstate ship-
ment of live stock from the place of origin to the
place of destination.

As a part of the statute, too, we must take into
consideration the regulations made under it. These
are as to sheep in a district quarantined for scabies,
that if inspected and found free from disease and
from exposure to it, they may be shipped out of the
State on the certificate of the inspector. If found
diseased they must, as a condition of being shipped,
be dipped once if intended for immediate slaughter

21

and twice if intended for feeding or stocking purposes.
If they are not diseased, but have been exposed, they
may be shipped without dipping for immediate
slaughter, and after one dipping for feeding or
stocking purposes.

Section 32 then provides for the mode of shipping
and prescribes the duties of the carriers. The sheep
must be billed for what they are—“ dipped scabby
sheep” or “exposed sheep for slaughter.” This
must be shown on all the waybills, manifests, etc.
The car containing the sheep must be placarded to
show the kind of sheep it contains, the placard and
the lettering upon it to be of a prescribed size. The
section concludes:

Whenever such shipments are transferred
to another transportation company or into
other cars or into other boats, or are rebilled
or reconsigned to a point other than the original
destination the cars into which said sheep are
transferred and the new waybills, conductors’
manifests, memoranda, and bills of lading cov-
ering such shipments by cars or boats shall be
marked as herein specified for cars first carry-
ing said sheep and for the billing, etc., covering
the same. If for any reason the placards re-
quired by this regulation are removed from
the car or are destroyed or are rendered illegi-
ble, they shall be immediately replaced by the
transportation company or its agents, the in-
tention being that legible placards shall be main-
tained on the cars from the time of shipment until
they arrive at destination, and the disposition of
the cars is wndicated by an inspector of the
Bureau of Animal Industry.

22

This regulation and all the others apply of course
only to interstate shipments.

Certainly it was competent for Congress to authorize
a regulation which was operative from the beginning
to the end of the shipment. In support of this it is
not necessary to more than refer to cases like Levsy v.
Hardin (135 U.S., 100), and Kelley v. Rhoads (188
U. S., 1), or, indeed, to any of the many cases that
have dealt with the question of when interstate com-
merce begins and when it ends.

The intention of the framers of the law was to
authorize such-a regulation, for the report of the
House Committee says: )

It is therefore obvious that contagious dis-
eases of live stock cannot be stamped out if
animals which have been exposed and which
are capable of communicating the infection,
but which are not themselves actually dis-
eased, can be trailed or shipped from State to
State without restriction. As the law stands
at present, any person may trail or ship cattle
or sheep from a Western or Southern State to
the State of Illinois, spreading infection in every
State through which the cattle pass, and yet,
unless the Government can show both that
the cattle were not only infected but actually
diseased, and that the person moving them
knew them to be diseased, no penalty can be
imposed by the Federal Government.

As tending to control and eradicate the contagious

_ diseases of animals in the United States, they recom-
mend the law in question. They meant to exert

23

the full power of Government, limited at best
in a case like this, and so extended the regulations
authorized by section 3 to “the movement of cattle
from a quarantined State or Territory into any other
State or Territory.”

The purpose of the act absolutely required regula-
tions of the scope of those adopted by the Secretary ;
that is, attending upon the shipment from begin-
ning to end. Certain diseases of animals, as here
scabies, are communicable. The purpose of the act
is to prevent the spread of this disease through the
channels of interstate commerce. If the sheep are
diseased they will carry contagion wherever they go.
If they have been exposed even though they them-
selves escape the disease they may still spread the
germs of contagion. The danger does not cease
when the first State line is crossed, but continues as
long as the infection lasts. The cattle shipped from
Maud, Okla., to St. Joseph, Mo., if they were in-
fected with Texas fever did not lose that infection
by crossing the line that marks the division of terri-
tory between Oklahoma and Kansas. And _ the
sheep in the present case were not cleansed of con-
tagion by delivery from the initial carrier to the
Baltimore and Ohio Southwestern Company for trans:
fer to the Union Stock Yards. This was the time,
above all others, when precaution should be taken.
As diseased or exposed sheep they should be taken
to the quarantined yard, and not to the general yard
where they would be brought into contact with hun-
dreds or thousands of uninfected cattle.

24

We respectfully submit that the law does accom-
plish what its authors intended and what its efficiency
requires.

Section three of the law provides:

That it shall be the duty of the Secretary
of Agriculture, and he is hereby authorized
and directed, when the public safety will
permit, to make and promulgate rules and
regulations which shall permit and govern
the inspection, disinfection, certification,
treatment, handling, and method and manner
of delivery and shipment of cattle or other
live stock from a quarantined State or Terri-
tory or the District of Columbia, and from
the quarantined portion of any State or
Territory or the District of Columbia, into
any other State or Territory or the District
of Columbia; and the Secretary of Agriculture
shall give notice of such rules and regulations
in the manner provided in section two [one]
of this Act for notice of establishment of
quarantine.

It was said in Rhodes v. Iowa (170 U.S., 412, Le.
422), that “the subtle signification of words and the
niceties of verbal distinction furnish no safe guide
for construing the act of Congress. On the contrary,
it should be interpreted and enforced by the light of
the fundamental rule of carrying out its purpose and
object, of affording the remedy which it was intended
to create, and of defeating the wrong which it was its
purpose to frustrate.” The present statute is so
plain that no subtlety or nicety of verbal distinction
can obscure its meaning. The regulations authorized

25

by section 3 are to govern the “delivery and shipment
of cattle or other live stock from a quarantined State
or Verritory or the District of Columbia * * *
into any other State or Territory or the District of
Columbia.”’? This means not simply the delivery for
shipment, which would confine it to the initial carrier,
but the delivery and shipment. It is not merely the
shipment from a quarantined State that is regulated,
but also the shipment into another State, and the other
State is not restricted to an adjacent State, but
includes any State of the Union.

The statute deals with the shipment always as an
entirety, and always as “from any quarantined State”’
and “into any other State.” Five times the move-
ment or shipment which is the subject of regulation
is described in the statute and always in terms of
“from any quarantined State” and “into any other
State.”

The shipment is in fact as well as in law an indi-
visible thing. There can be no shipping from one
jurisdiction without shipping into another. And the
important phase of this entire and indivisible thing
is the shipping or moving “into any other State.”
The disease exists in the quarantined State and the
purpose is to keep it from spreading “into any other
State,” near or far. What an absurd thing to impute
to the law, that it prescribes precautions to be ob-
served while moving within the quarantined State
where the disease already exists, but which may be
disregarded the moment the line is crossed and a State
is reached in which the disease does not exist, but into

26

which it may be carried if the precautions are neg-
lected. And yet that is the result if the two cases
decided by the District Courts adversely to the Gov-
ernment were correctly decided. If in the case of
United States v. C., B. & Q. R. R. Co., supra, the of-
fense, and the only offense possible under the act, was
complete “the moment it (the shipment) crossed the
line between Oklahoma and Kansas,” and so, as a
consequence, no succeeding and connecting carrier
could be guilty of any offense, then by the same token
the original or initial carrier could not be guilty of any
offense of omission or commission after it had crossed
the line. So if the placard had been removed or de-
stroyed or rendered illegible, there would not be upon
it any obligation to obey the requirement of regula-
tion 32, that it “be immediately replaced by the
transportation company or its agents.” More than
this, the initial carrier, when it crossed the State line,
might strip the placard from the car and change its
waybills, moving the shipment thenceforth as one
neither diseased nor exposed to disease. A conven-
ient law this would be for unscrupulous carriers and
shippers, but it would fail in every purpose of its
enactment.

No ease of interstate shipment can be imagined in
which there is such requirement that the shipment
be regarded as an unbroken transaction from begin-
ning toend as where quarantine is involved. The
greater the distance of shipment the greater the
danger of spreading disease. Stock moving from a

27

quarantined State to an adjacent State might not be
unloaded and yarded en route at all. It would be a
source of danger only at its destination. But stock
going through many States must be unloaded and
yarded every twenty-eight hours, and at each place
where this was done a center of infection would be es-
tablished. Andso to limit the quarantine regulations
to the mere crossing of the first State line is to strike
them down altogether and the law as well.

The District Court construed this law as the
bourgeois of Falaise construed the order of the city
authorities requiring anyone out at night to carry a
lantern. The bourgeois, upon being arrested for a
violation of this order, exhibited a lantern. “ But,’
said the officer, “there is no candle in your lantern.”
He replied, ‘The order said nothing about a candle.”
He was admonished that a lantern without a candle
was useless for the purposes of the order and per-
mitted to go his way. The next night he was ar-
rested again, and now he exhibited a lantern with a
candle in it. “ But,” said the officer, “the candle is
not lighted.” “ And,’’ replied the bourgeois, “there
was nothing in the order or the admonition requiring
the candle to be lighted.”

- In the narrow spirit of the bourgeois has this law
been construed. The requirement of a lantern in the
night is of one trimmed and burning and lighting up
the darkness, and so to construe the requirement is
not to add anything to it, but only to give effect to it.
To extend the quarantine regulations provided for by

28

this act to the entire course of an interstate shipment
of diseased or exposed cattle or sheep adds not a word
to the act nor takes a word from it, but only gives to
the words employed the effect which it is manifest
they were intended to have.

It is respectfully submitted that the judgment of
the District Court should be reversed.

F. W. LEHMANN,
Solicitor General.
Juty, 1911.

APPENDIX.
A.

Act of March 3, 1905, 33 Stat., 1264, ‘““To enable the
Secretary of Agriculture to establish and maintain
quarantine districts, to permit and regulate the
movement of cattle and other live stock therefrom,
and for other purposes.’’

Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assem-
bled, That the Secretary of Agriculture is authorized
and directed to quarantine any State or Territory or
the District of Columbia, or any portion of any State
or Territory or the District of Columbia, when he
shall determine the fact that cattle or other live stock
in such State or Territory or District of Columbia are
affected with any contagious, infectious, or communi-
cable disease; and the Secretary of Agriculture is
directed to give written or printed notice of the estab-
lishment of quarantine to the proper officers of rail-
road, steamboat, or other transportation companies
doing business in or through any quarantined State
or Territory or the District of Columbia, and to pub-
lish in such newspapers in the quarantined State or
Territory or the District of Columbia, as the Secretary
of Agriculture may select, notice of the establishment
of quarantine.

Sec. 2. That no railroad company or the owners or
masters of any steam or sailing or other vessel or boat
shall receive for transportation or transport from any
quarantined State or Territory or the District of Co-

lumbia, or from the quarantined portion of any State
(29)

30

or Territory or the District of Columbia, into any
other State or Territory or the District of Columbia,
any cattle or other live stock, except as hereinafter
provided; nor shall any person, company, or corpora-
tion deliver for such transportation to any railroad
company, or to the master or owner of any boat or
vessel, any cattle or other live stock, except as here-
inafter provided; nor shall any person, company or
corporation drive on foot, or cause to be driven on
foot, or transport in private conveyance or cause to
be transported in private conveyance, from a quar-
antined State or Territory or the District of Colum-
bia, or from the quarantined portion of any State or
Territory or the District of Columbia, into any other
State or Territory or the District of Columbia, any
cattle or other live stock, except as hereinafter pro-
vided.

Src. 3. That it shall be the duty of the Secretary
of Agriculture, and he is hereby authorized and di-
rected, when the public safety will permit, to make
and promulgate rules and regulations which shail
permit and govern the inspection, disinfection, cer-
tification, treatment, handling, and method and man-
ner of delivery and shipment of cattle or other live
stock from a quarantined State or Territory or the
District of Columbia, and from the quarantined por-
tion of any State or Territory or the District of Co-
lumbia, into any other State or Territory or the
District of Columbia; and the Secretary of Agricul-
ture shall give notice of such rules and regulations in
the manner provided in section two [one] of this Act
for notice of establishment of quarantine.

Src. 4. That cattle or other live stock may be
moved from a quarantined State or Territory or
the District of Columbia, or from the quarantined

ol

portion of any State or Territory or the District of
Columbia, into any other State or Territory or the
District of Columbia, under and in compliance with
the rules and regulations of the Secretary of Agri-
culture, made and promulgated in pursuance of the
provisions of section three of this Act; but it shall
be unlawful to move, or to allow to be moved, any
cattle or other live stock from any quarantined
State or Territory or the District of Columbia, or
from the quarantined portion of any State or Ter-
ritory or the District of Columbia, into any other
State or Territory or the District of Columbia, in
manner and method or under conditions other than
those prescribed by the Secretary of Agriculture.
x 2 2 x X

Src. 6. That any person, company, or corporation
violating the provisions of sections two or four of
this Act shall be guilty of a misdemeanor, and on
conviction shall be punished by a fine of not less
than one hundred dollars nor more than one thou-
sand dollars, or by imprisonment not more than one
year, or by both such fine and imprisonment.

B.

House Report No. 4200, Fifty-eighth Congress, third session.

QUARANTINE DISTRICTS FOR LIVE STOCK.
Frspruary 3, 1905.—Referred to the House Calendar and ordered to be
printed.

Mr. Haskins, from the Committee on Agriculture,
submitted the following report:

[To accompany H. R. 17589.]

The Committee on Agriculture, having had under
consideration the bill (H. R. 17589) to enable the
Secretary of Agriculture to establish and maintain
quarantine districts, to permit and regulate the move-
ment of cattle and other live stock therefrom, and
for other purposes, respectfully submit the following
report with the recommendation that the bill do pass:

The existing law having reference to quarantine of
live stock in infected districts, and for the suppres-
sion and extirpation of contagious, infectious, and
communicable diseases in live stock, is embodied in
the act of May 29, 1884 (23 Stat. L., 30), and the act
of February 2, 1903 (82 Stat. L., pt. 1, 791).

The first-named act is that providing for the estab-
lishment of the Bureau of Animal Industry. The
first two sections thereof have reference to organiza-
tion.

Section 3 provides for the cooperation of the Com-
missioner of Agriculture and the State and Territorial
authorities for the suppression and extirpation of

(32)

33

diseases in animals. That is, in order that the law
become effective, the rules and regulations promul-
gated by the Commissioner of Agriculture must be
accepted by the State or Territorial authorities, or
the plans and methods adopted by the State or Ter-
ritory must be accepted by the Commissioner of
Agriculture. And it was only by such agreed coop-
eration that the Commissioner of Agriculture was
authorized to expend such portion of the money
appropriated under said act as he might deem neces-
sary in the suppression and extirpation of diseases of
live stock.

Section 4 provides that, to promote exportation of
live stock, the Commissioner of Agriculture is author-
ized to make special investigation as to the existence
of pleuro-pneumonia or any other contagious or com-
municable disease, reporting the results of his inves-
tigation to the Secretary of the Treasury, who, from
time to time, was authorized to establish such regu-
lations concerning the exportation and transporta-
tion of live stock as the results of said investigation
might require.

Section 5 authorizes the Secretary of the Treasury,
in order to prevent the exportation of diseased live
stock from any part of the United States, to take
such steps and adopt such measures as he might deem
necessary, not inconsistent with said act.

Section 6 is a prohibition upon railroad companies,
owners, or masters of steam or sailing vessels from
receiving for transportation from one State or Terri-
tory to another, or into the District of Columbia, live
stock affected with any contagious disease, and espe-
cially that of pleuro-pneumonia; or any person, com-
pany, or corporation from delivering to such railroad

Cj

o4

or transportation company any live stock, knowing
the same to be affected with any contagious, infec-
tious, or communicable disease; or any person, com-
pany, or corporation to drive on foot or to transport
in private conveyance, from one State or Territory to
another, live stock, knowing the same to be affected
with any contagious, infectious, or communicable dis-
ease, and especially the disease known as pleuro-
pneumonia.

Section 7 provides for the notification by the Com-
missioner of Agriculture to transportation companies
and persons doing business in infected districts by
notice in writing and by publication of the existence
of said contagion; that any person or persons oper-
ating a transportation company, or persons having
control of live stock in said infected districts, who
shall knowingly violate the provisions of section 6
shall be guilty of a misdemeanor, and upon conviction
shall be punished by a fine of not less than $100 or
more than $5,000, or by imprisonment for not more
than one year, or by both, in the discretion of the
court. |

Section | of the act of February 2, 1903, transferred
the powers conferred on the Secretary of the Treasury
by section 4 of the first-mentioned act to the Secre-
tary of Agriculture, including among the contagious
diseases that known as the foot-and-mouth disease.
And it authorized the Secretary of Agriculture from
time to time to establish such rules and regulations
concerning the exportation and transportation of
live stock from any place in the United States when
he had reason to believe such diseases existed into
and through any State or Territory, including the
Indian Territory, and into and through the District
of Columbia, and to foreign countries, as he might

30

deem necessary, “and all such rules and regulations
shall have the force of law.”

Section 2 authorizes the Secretary of Agriculture
to make all necessary regulations and to take such
measures as he might deem proper to prevent the
introduction or dissemination of the contagion, or of
any contagious, infectious, or communicable diseases
by animals from a foreign country into the United
States, or from one State or Territory to another,
and to seize, quarantine, and dispose of, etc., when
in his judgment such action is advisable.

Section 3 imposes a fine of not less than $100, or
not more than $1,000, or imprisonment for not more
than one year, or both, as a penalty for the violation
of the rules and regulations promulgated by the Sec-
retary of Agriculture, such violation being declared a
misdemeanor.

It has been found that both of the aforesaid acts
are defective in their provisions, and are wholly inad-
equate to accomplish the purposes which Congress
had in view at the time they were enacted. The
Supreme Court of the United States in the case of
Reid v. Colorado (187 U. 8., 137) declared that the
act of May 29, 1884, conferred power upon the Sec-
retary of Agriculture to institute quarantine meas-
ures only when the State affected had adopted the
measures of the Bureau of Animal Industry or when
the Bureau of Animal Industry had approved the
_measures of the State looking to the suppression and
extirpation of contagious diseases.

Regarding the interstate movement of cattle, the
Supreme Court in the same case said:

“Congress went no further than to make it an
offense against the United States for anyone know-
ingly to take or send from one State or Territory to

36

another State or Territory, or into the District of
Columbia or from the District into any State, live
stock affected with infectious or communicable
diseases. The animal-industry act did not make it an
offense against the United States to send from any
State into another live stock which the shipper did
not know were diseased.”’

The case of the United States v. Slater, reported in
123 Federal, page 115, takes the same view of the
act of 1884. In the case of the United States v.
Alex. Hoover, an unreported case, in the district
court of Nebraska, the court, after quoting a portion
of the opinion of the Supreme Court in the case of
Reid v. Colorado, said:

“The act of Congress, then, being limited to cases
where the animals were affected with an infectious or
communicable disease, it was not within the power
or authority of the Secretary of Agriculture to
extend the act and by an order or regulation bring
within its penal provisions matters which were not
criminal by the terms of the act.”

From the aforesaid cases it seems to be well settled
that to constitute an unlawful movement of cattle
from State to State, under the act of 1884, two ele-
ments must concur, viz, (1) the cattle must be
diseased; (2) the person moving them must know
that they are diseased. Consequently, under this act
exposed cattle, or cattle which are diseased but which
the shipper does not know are diseased, may be
moved with entire freedom from prosecution, and
there is no affirmative provision in the law compelling
the shipper to submit his cattle to inspection before
shipment in order to form an intelligent opinion as to
whether or not they are in fact diseased.

37

After the decision of the Supreme Court in the case
of Reid v. Colorado had been handed down it was felt
that the act of May 29, 1884, was defective, and the
act of February 2, 1903, was passed. As will be
seen, this latter act transferred certain powers vested
in the Secretary of the Treasury to the Secretary of
Agriculture.

The authority donated in this act for the Secretary
of Agriculture to make rules and regulations con-
cerning the interstate movement of live stock and
providing that these rules and regulations shall have
the force and effect of law is, on its face, a very broad
provision, and it is believed that it was the intention
of Congress thereby to place in the hands of the
Secretary of Agriculture absolute control of the
interstate movement of all cattle, whether diseased
or clean, coming from infected territory, in order to
extirpate contagious diseases of animals. Acting
under the provisions of the act of February 2, 1903,
the Secretary of Agriculture has, from time to time,
issued various rules and regulations quarantining
and regulating the movement of both diseased
and exposed animals from certain affected localities.
Violations of these rules and regulations have oc-
curred, and in attempting to secure the punishment
of the guilty persons through the courts it has been
found that it is settled law that the rules and regula-
tions of an administrative officer may not go beyond
the statute under which the rules and regulations
are issued. In other words, as was stated by the
supreme court of Arizona in the case of Dent v.
United States (71 Pacific, 920):

“The act of June 4, 1897 (80 Stat. L., 33), is an
unconstitutional delegation of legislative power to the
Secretary of the Interior in so far as it authorizes him

38

to specify that the performance of certain acts shall
constitute a crime.”

In the case of the United States v. Alex. Hoover,
above referred to, the court said, referring to the act
of February 2, 19038:

“The act nowhere attempts to prohibit the ship-
ment of animals which are free from disease, and if
Congress intended to empower the Secretary of
Agriculture to make rules and regulations, the viola-
tion of which alone should constitute a crime, it was
an unconstitutional delegation of legislative authority.
While Congress may authorize the executive head of
any department of the Government to make binding
rules and regulations which are administrative in
character, it can not delegate the authority to make
laws.”

It is therefore obvious that contagious diseases of
live stock can not be stamped out if animals which
have been exposed and which are capable of com-
municating the infection, but which are not them-
selves actually diseased, can be trailed or shipped
from State to State without restriction. As the law
stands at present, any person may trail or ship cattle
or sheep from a Western or Southern State to the
State of Illinois, spreading infection in every State
through which the cattle pass, and yet, unless the
Government can show both that the cattle were not
only infected but actually diseased, and that the
person moving them knew them to be diseased, no

penalty can be imposed by the Federal Government.
If contagious diseases of animals are to be con-

trolled and eradicated in the United States, it is
respectfully submitted that the following additional
legislation is needed:

RES

39

1. Power to declare a quarantine of any State or
Territory or any portion of any State or Territory
where the existence of contagious diseases of cattle
or other live stock is proven, due notice to be given
of the establishment of quarantine to transportation
companies and to the general public. This is covered
by the first section of the proposed bill. Of course,
if a portion of a State were quarantined, cattle could
be moved from the quarantined portion of that State
to any other part of the same State and the jurisdic-
tion of the Federal Government would not attach.

2. A provision that no cattle or other live stock
shall be moved from a quarantined State or Territory
to any other State or Territory except under certain
prescribed conditions. This is covered by section 2 of
the proposed bill.

3. Direction to and authority in the Secretary of
Agriculture to make rules and regulations under
certain conditions governing and permitting the
movement of cattle from a quarantined State or Ter-
ritory to any other State or Territory, with due pro-
vision for promulgation of notice of these regulations
and conditions to interested parties and to the general
public. This is covered by section 3 of the proposed
bil.

4. Providing that it ‘aha be unlawful to move cattle
or other live stock from a quarantined State or Ter-
ritory into any other State or Territory except in the
manner prescribed by the rules and regulations of
the Secretary of Agriculture. This is provided for in
section 4 of the proposed bill.

5. Imposing a heavy penalty for an assault or
attack with a deadly weapon upon an inspector of
the Bureau of Animal Industry while said inspector
is engaged in the performance of his official duty.

40

This provision is very necessary. During the past
year two vicious, deadly, and unprovoked assaults
have been made upon inspectors engaged in the per-
formance of their official duties, and it was found
that no statute existed under which the perpetrators
could be proceeded against in the Federal courts.
This is provided for in section 5 of the proposed bill.

6. Imposing a penalty for the violation of the pro-
visions of sections 2 and 4 of the proposed bill. This
is covered by the last section.

C.

REGULATIONS TO PREVENT THE SPREAD OF SCABIES
IN SHEEP.

Effective April 15, 1907.

REGULATION 29. No sheep which are diseased with
scabies shall be shipped, trailed, otherwise removed,
or allowed to drift from one State, Territory, or the
District of Columbia, into another State, Territory,
or the District of Columbia, except as hereinafter
provided; and no sheep shall be shipped, trailed,
otherwise removed, or allowed to drift from a State
or Territory or portion thereof quarantined for the
disease of scabies in sheep into another State, Ter-
ritory, or the District of Columbia, except as herein-
after provided, until the sheep shall have been
inspected by an inspector of the Bureau of Animal
Industry, found to be free from the disease and from
exposure thereto, and are accompanied by a certifi-
cate from the said inspector. All of the sheep in a
certain flock or shipment in which the disease is
present shall be classed as diseased sheep, and none
of them shall be removed or offered for interstate
shipment until dipped as hereinafter provided. The
practice of “picking” a flock—i. e., removing sheep
which are visibly diseased and then offering any por-
tion of the remaining sheep for either inspection or
interstate shipment, or both—is directly and _ posi-
tively prohibited.

(41)

42

REGULATION 30. Healthy sheep in an area not
quarantined for the disease of scabies in sheep which
have not been exposed to the disease may be shipped
or trailed interstate without restriction by the regu-
lations of the Secretary of Agriculture to prevent the
spread of scabies in sheep; but if said sheep be un-
loaded en route or at destination and are placed in
infectious premises they shall thereafter be treated
as exposed sheep and shall not be forwarded to des-
tination for purposes other than immediate slaughter
until they shall have been dipped under the super-
vision of an inspector of the Bureau of Animal In-
dustry.

REGULATION 31. Sheep that are diseased with
scabies and that have been dipped once in one of the
approved dips, under the supervision of an inspector
of the Bureau of Animal Industry within ten days of
date of shipment, may be shipped interstate for imme-
diate slaughter to a recognized slaughtering center,
and when so shipped the said sheep shall not be
diverted en route and shall be slaughtered within
two weeks after arrival at destination. If diseased
sheep are to be shipped interstate for stocking or
feeding purposes they shall be dipped twice as above
indicated, ten days apart, and shall be submitted to
inspection before shipment.

Sheep that are not diseased with scabies, but which
have been exposed to the contagion of the disease,
may be moved interstate for feeding or stocking
purposes after one dipping, or they may be shipped
interstate by rail or boat to a recognized slaughtering
center for immediate slaughter without dipping.

REGULATION 32.—When diseased sheep have been
dipped once and are shipped interstate for slaughter
in accordance with Regulation 31, or when exposed

43

sheep are shipped interstate without dipping for
immediate slaughter in accordance with Regulation
31, the proper officers of the transportation company
shall affix to both sides of each car a durable placard
not less than 55 by 8 inches in size, on which shall be
printed with permanent black ink in bold-face letters
not less than 14 inches in height the words “DIPPED
SCABBY SHEEP” or “ EXPOSED SHEEP FOR SLAUGHTER,”
as the case may be. These placards shall also show
the name of the place from which the shipment was
made, the date of the shipment (which must corre-
spond with the date of the waybills and other papers),
the name of the transportation company, and the
name of the place of destination. Each of the way-
bills, conductors’ manifests, memoranda, and bills of
lading pertaining to such shipments by cars or boats
shall have the words “DIPPED SCABBY SHEEP” or
“EXPOSED SHEEP FOR SLAUGHTER,” as the case may
be, written or stamped upon its face. Whenever
such shipments are transferred to another trans-
portation company or into other cars or into other
boats, or are rebilled or reconsigned to a point other
than the original destination the cars into which
said sheep are transferred and the new waybills, con-
ductors’ manifests, memoranda, and bills of lading
covering such shipments by cars or boats shall be
marked as herein specified for cars first carrying said
sheep and for the billing, etc., covering the same. If
for any reason the placards required by this regula-
tion are removed from the car or are destroyed or
rendered illegible, they shall be immediately replaced
by the transportation company or its agents, the in-
tention being that legible placards shall be maintained
on the cars from the time of shipment until they
arrive at destination, and the disposition of the cars

{+

is indicated by an inspector of the Bureau of Animal
Industry.

REGULATION 33.—The dips now approved are:

(a) The tobacco-and-sulphur dip, made with suf-
ficient extract of tobacco or nicotine solution to give
a mixture containing not less than five one-hun-
dredths of 1 per cent of nicotine and 2 per cent flow-
ers of sulphur: Provided, That for the first dipping
of infected sheep, in lieu of the sulphur herein pre-
scribed, a sufficient additional amount of extract of
tobacco or nicotine solution shall be used to give a
mixture containing not less than seven one-hun-
dredths of 1 per cent of nicotine.

(b) The lime-and-sulphur dip, made by mixing
8 pounds of unslaked lime and 24 pounds of flowers
of sulphur and boiling with 30 gallons of water for
not less than two hours. All sediment should be
allowed to subside before the liquid is placed in the
dipping vat. This liquid should be diluted sufh-
ciently to make 100 gailons before use;

And pending further investigation, the following-
described dips:

(c) The cresol dip, which consists of a mixture of
cresylic acid” with soap. When diluted ready for
use this dip should contain one-half of 1 per cent of
cresylic acid.

(dq) The coal-tar creosote dip, which is made by
mixing coal-tar creosote or coal-tar oils and cresylic
acid separately with resin soap in varying proportions.
This dip should contain when diluted ready for use
not less than 1 per cent by weight of coal-tar oils and
cresylic acid. In no case should the diluted dip

a By the term cresylic acid as used in these regulations is meant cresols
and other phenols derived from coal tar, none of which boils below 185°
C. nor above 250° C.

45

contain more than four-tenths of 1 per cent nor less
than one-tenth of 1 per cent of cresylic acid; but
when the proportion of cresylic acid falls below two-
tenths of 1 per cent the coal-tar oils should be in-
creased sufficiently to bring the total of the tar oils
and the cresylic acid in the diluted dip up to 1.2 per
cent by weight.

The cresol dip and the coal-tar creosote dip should
always be tested on a small scale with the water and
under the conditions to be employed in dipping in
order to avoid possible injury to stock. The diluted
sample should be allowed to stand for at least an
hour. If after this length of time there is a separa-
tion of an oily layer the dip should not be used with
that kind of water. Especial care in this connection
is necessary where hard water is to be used.

In the undiluted coal-tar creosote dips there may
be, in cold weather especially, a separation of naph-
thalene and other constituents of the dip. Care
should therefore be taken to see that the concentrated
dip is homogeneous in character before using any
portion of it.

Manufacturers who desire the Department to ap-
prove their dips for official dipping should submit a
sample of their product to the Bureau of Animal
Industry in Washington and accompany this with
the formula used in preparing the dip.

Before a proprietary substance is approved for
use in official dipping the manufacturer must agree
as follows:

(1) To recommend for sheep scab a dilution of his
product which is approved by the Department of
Agriculture.

(2) To maintain his product of uniform composi-
tion.

46

(3) To place on packages of dips which have been
approved the following statement:

A sample of this product has been submitted to the
Department of Agriculture for examination. We
guarantee the contents of this package to be of the
same composition as the sample submitted to the
Department, and that when diluted according to the
directions printed hereon for the treatment of sheep
scab it will give a dipping fluid of the composition
required of a “ dip by the regulations of the
Secretary of Agriculture governing sheep scab.

(4) To have on containers or advertising matter no
reference to the United States Government or any of
its Departments except as provided in the preceding
paragraph.

REGULATION 34. The dipping shall be done care-
fully and the sheep handled as humanely as possible.
The Department disclaims responsibility for any loss
or damage resulting from the dipping, and those who
wish to avoid any risks that may be incident to dip-
ping at the stock yards, as well as to avoid liability to
prosecution, should see that their sheep are free from
disease before shipping them to market.

REGULATION 35. Sheep shipped interstate under a
certificate from an inspector of the Bureau of Animal
Industry are not guaranteed uninterrupted transit;
for in the event of the discovery of scabies or of ex-
posure thereto en route the sheep shall thereafter be
handled as diseased or exposed sheep, as hereinbefore
provided, and the cars or other vehicles and the chutes,
alleys, and pens which have been occupied by them
shall be cleaned and disinfected, as hereinafter pro-
vided.

a There should be inserted here the name of the class of dips to which the
product belongs, such as ‘“‘cresol”’ or ‘‘lime and sulphur,”’ etc.

47

REGULATION 36. Public stock yards shall be con-
sidered infectious and the sheep yarded therein as
having been exposed to the disease, and no sheep shall
be shipped interstate therefrom, except for immediate
slaughter, without dipping. Where, however, a part
or all of the stock yards is reserved and set apart for
the reception of uninfected shipments of sheep and is
kept free of disease, sheep may be shipped interstate
from the uninfectious yards or portions thereof without
dipping. If diseased sheep are introduced into the
uninfectious yards or portions thereof, they shall be
immediately removed therefrom and the chutes,
alleys, and pens occupied by the said sheep shall be
thoroughly cleaned and disinfected. No sheep shall
be shipped interstate for feeding or stocking purposes
from any stock yards where an inspector of the Bureau
of Animal Industry is stationed without a certificate
of inspection or of dipping issued by the said inspector.

REGULATION 37. Cars and other vehicles, yards,
pens, sheds, chutes, etc., that have contained diseased
sheep shall be cleaned and disinfected in the following
manner: Remove all litter and manure and then sat-
urate the interior surfaces of the cars and the wood-
work, flooring, and ground of the sheds, alleyways,
and pens with a solution containing 5 per cent of pure
carbolic acid or with a solution containing 2 per cent
of cresol. When cresol is used it must be mixed with
soft soap in order to render it easily soluble in cold
water. Cars and premises are not required to be
cleaned and disinfected on account of their having
contained ‘dipped scabby sheep” that have been
dipped within ten days or sheep that have been
exposed to scabies. In determining exposure, all
sheep in a flock or shipment in which disease is
present shall be classed as diseased.

(Amendment 4 to
B. A. I. Order 146.)

United States Department of Agriculture,

BUREAU OF ANIMAL INDUSTRY.

AMENDMENT 4 TO RULE 3, REVISION 1.—TO PREVENT THE
SPREAD OF SCABIES IN SHEEP.

Effective on and after August 16, 1909.

UNITED STATES
DEPARTMENT OF AGRICULTURE,
OFFICE OF THE SECRETARY.

The fact has been determined by the Secretary of
Agriculture, and notice is hereby given, that a con-
tagious, communicable disease known as scabies exists
among sheep in the State of Kentucky.

Now, therefore, I, JAMES WILSON, SECRETARY OF
AGRICULTURE, under authority conferred by section 1
of the act of Congress approved March 38, 1905 (338
Stat., 1264), do hereby quarantine the following area,
to wit:

All territory situate within the boundaries of the
State of Kentucky.

It is ordered by this Amendment 4 to Rule 3, —
Revision 1, under the authority and discretion con-
ferred upon the Secretary of Agriculture by section 3

(48)

49

of the act of Congress approved March 3, 1905 (33
Stat., 1264), that sheep in the State of Kentucky shall
be moved therefrom to any other State or Territory
or District only in accordance with Regulations 31
to 37, inclusive, of the regulations of the Secretary of
Agriculture designated as B. A. I. Order 148, pro-
mulgated March 22, 1907, and effective April 15, 1907,
as amended, and that all inspections and dippings
required under said Regulations 31 to 37, inclusive,
shall be made at pomts where Federal inspection is
maintained.

Done at Washington this fifth day of August, 1909.

Witness my hand and the seal of the Department
of Agriculture.

[SBAL. | JAMES WILSON,

Secretary of Agriculture.

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