ON MOTION ROE REHEARING.
Hill, J.The opinion of the court in this case is based upon the explicit terms of the act of 1903 in connection with the rules and regulations of the Department of Agriculture, promulgated in pursuance of the terms of said act. 32 Stat. 791. The rules *490and regulations in pursuance of the act, expressly cited and relied upon in the opinion, are found in the publication of the “ Begulations, governing the interstate movement of live stock,” issued by the United States Department of Agriculture, on page 17, paragraph 3. The act of Congress of 1903 referred to, and which is relied upon by the plaintiff in error, is not ambiguous in its terms, but explicitly declares that, “Whenever any inspector or assistant inspector of the Bureau of Animal Industry shall issue a certificate showing that such officer had inspected any cattle or other live stock which were about to be shipped, driven, or transported from such locality to another, as above stated, and had found them free from Texas, or splenetic, fever infection, pleuro-pneumonia, foot- and-mouth disease, or any other infectious, contagious, or communicable disease, such animals so inspected and certified may be shipped, driven, or transported from such place into and through any State or Territory, including the Indian Territory, and into and through the District of Columbia, or they may be exported from the United States without further inspection or the exaction of fees of any kind, except such as may at any time be ordered or exacted by the Secretary of Agriculture; and all such animals shall at all times be under the control and supervision of the Bureau of Animal Industry of the Agricultural Department for the purposes of such inspection, ” and the second section of this act provides that the “ Secretary of Agriculture shall have authority to make such regulations and take such measures as he may deem proper to prevent the introduction or dissemination of the contagion of any contagious, infectious, or communicable disease of animals from a foreign country into the United States or from one State or territory of the United States or the District of Columbia to another.” .
To carry out the provisions of this act the Secretary of Agriculture, on July 1, 1919, published certain rules and regulations. Among these rules and regulations are the following’ which are applicable to the interstate movement of cattle for purposes other than immediate slaughter: Section 3, paragraph 1, of regulation 2, applies to cattle of the quarantined area, or other cattle exposed to or infested with tides, and it permits the movement of such cattle which have been properly dipped twice with an interval of from 7 to 12 days in a permitted arsenical solution or otherwise treated in a manner approved by the Secretary of Agriculture, under *491the supervision of a bureau inspector, and which have been certified by the said inspector to be free of infection from splenetic fever and permits the movement interstate for any purpose. And paragraph 2 of this section of the regulations expressly provides that cattle in areas where tick eradication is being systematically conducted in co-operation with the State authorities, or any cattle presented at a properly equipped dipping station which on inspection by a bureau inspector are found to be apparently free from ticks, may, after- one dipping in an approved arsenical solution under the supervision of a bureau inspector and certification by the said inspector, be shipped interstate for any purpose: provided, that the conditions are such that the cattle may be moved to the free area or to a transportation line without exposure to infection. The difference between the two regulations is apparent. Paragraph 1 provides that the cattle of the quarantined area, or other cattle exposed to' or infested with ticks, must be dipped twice with an interval of from 7 to 12 days in a permitted arsenical solution or otherwise treated in a manner approved by the Secretary of Agriculture under the supervision of a bureau inspector, and which have been certified by the said inspector to be free of infection from splenetic fever, and then the cattle may be moved interstate for any purpose. Paragraph 2 of the section provides that where there has been one dipping in an approved arsenical solution under the supervision of a bureau inspector and certification by the said inspector they may be shipped interstate for any purpose. These regulations are in strict compliance with the act of 1903, and the fact that the cattle in question had been dipped by a bureau inspector and were found to be apparently free from ticks made it unnecessary, in the opinion of this court, by the express terms of the act and the regulations in pursuance thereof, to subject tbe cattle to a second dipping, unless authorized by the Department of Agriculture for some cause either of exposure to infection or to actual infection after the shipment and after the first dipping and the certification showing freedom from splenetic fever.
Paragraph 1 of section 3 of regulation 3, found on page 17 of the pamphlet issued by the Secretary of Agriculture, is as follows: “ Cattle affected with scabies may be shipped interstate for purpose other than slaughter if dipped twice in a permitted dip, 10 to 14 days apart, under the supervision of a bureau inspector, and so *492certified by such inspector, or such cattle may be so shipped if clipped once in a permitted' dip under bureau supervision at the point of origin, provided arrangements have been made for the second dipping, under bureau supervision. ” Paragraph 2 of this section is as follows: “ Cattle of the quarantined or free area not visibly diseased with scabies, but which are known to be part of a diseased herd or to have come in contact with diseased cattle or infectious cars or premises, may be shipped interstate for purposes other than slaughter, if dipped once at the point.of origin, under the supervision of a bureau inspector, in a permitted dip, or the cattle may be dipped on route by special permission first had and obtained from the chief of the bureau.” And paragraph 3 of this section is as follows: “ Cattle of herds of the quarantined area, which are not diseased with scabies, may be shipped or transported interstate for any purpose upon inspection by a bureau inspector and when accompanied by a certificate from such inspector showing the cattle to be free from disease or exposure thereto. ” In the present case the evidence shows the forty head of cattle to have been shipped from a quarantined area; that they were not diseased with scabies; that this fact was determined upon inspection by a bureau inspector; and that this bureau inspector’s certificate accompanied the shipment of cattle showing the cattle to be free from disease or exposure thereto.
These regulations in pursuance of the act of 1903 make it perfectly clear that the provisions of the Act of Congress were not intended to prohibit interstate transportation of what is known as “ free cattle ” or cattle which had been inspected and dipped by a bureau inspector before shipment and pronounced free from infec-. tion. The act of 1903 expressly provides that animals inspected by the Bureau of Animal Industry and certified to be free from disease might be shipped from one State to another without further inspection, and the court explicitly holds, under the terms of said act, that it did not prohibit the shipment of animals free from disease, and that the Secretary of Agriculture had power thereunder to make rules and regulations in reference to such animals, the violation of which alone would not constitute a crime. “ The act of Congress, then, being limited to cases where the animal was affected with an infectious or communicable disease, it was not within the power or authority of the Secretary of Agriculture *493to 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. United States v. Hoover, 133 Fed. 951.
Learned counsel for the' movant insists, in his motion for a rehearing, that the act of 1903 had been repealed by the act of 1905, and that the provisions of the act of 1903 could not be applied to the shipment involved in this case, and thus evince the fact that this court “ has not grasped what was the issue in the case at bar, and hence has failed to decide that issue, while the issue was clearly understood by the trial judge, and was actually decided by him, and thus the opinion does a grave injustice to the trial judge, as well as an injustice to the defendants in error.” This court may have been so unfortunate as to fail to grasp the issue involved in the case. Our excuse is that we decided the issue involved under the explicit terms of the act of 1903, which, according to our limited apprehension, controlled the only question of fact and law in the case, to wit, whether there should have been a second dipping of the cattle in-question, which had been inspected and dipped and certified as free from disease by an inspector of the Bureau of Animal Industry when delivered for shipment. This court is unable to agree with the statement of the learned counsel that the act of 1905 repealed the act of 1903, upon the construction of which the opinion was made. It is conceded that there is no express repeal of the terms of this law or of the regulations made in pursuance thereof. A very close examination of the terms of the act of 1905 and of the rules and regulations which apparently were made in pursuance thereof fails to disclose any conflict that would tend to establish a repeal by implication. The Secretary of Agriculture, in the compilation of the laws and the rules and regulations of the department, seems not to have discovered any conflict between the act of 1903 and the act of 1905. In the publication of the pamphlet showing the laws and the rules and regulations made in pursuance thereof, both the act of 1903 and the act of 1905 are given, and not a hint or intimation made of any conflict between any of their terms or provisions. On the contrary, a- close examination of the two acts discloses the fact that as to tick eradication the rules and regulations published by the Secretary of Agriculture, as made'by the department in 1919, are based entirely upon the act of 1903. ’ It *494is hardly possible that the Secretary of Agriculture would have published both laws if there had been conflicts between the terms of the two, without calling some attention to it. Among the ^regulations for the transportation, of cattle, in paragraph 3 of section 3 of regulation 3, occurs the following clear and unmistakable statement: “ Cattle of herds of the quarantined area, which are not diseased with scabies, may be shipped or transported interstate for any purpose upon inspection by a bureau inspector and when accompanied by a certificate from such inspector showing the cattle to be free from disease or exposure thereto.” These rules are expressly based upon the act of 1903, and if the act of 1903 had been repealed or modified by the act of 1905, it would hardly have appeared as a part of the law regulating interstate movement of live stock, issued by the United States Department of Agriculture in 1919. It would seem, therefore, that where the terms of the act itself are explicit and the rules and regulations made in pursuance thereof are without ambiguity, and the facts, as shown by the record in this case, that the cattle were shipped from a quarantined area and were not diseased with an infectious disease or with scabies, and were inspected by a bureau inspector, and were accompanied by a certificate from such inspector showing that the cattle were free from disease or exposure thereto, as in the present case, there could remain little doubt that the second dipping of the cattle was not authorized even by the Federal bureau through its proper inspector. We can discover nowhere in the act or in the regulations any proposition justifying the dipping of cattle except when authorized by the United States Agricultural Department. But even if the rules and regulations made by the Department of Agriculture under the terms of the act of 1905 were in conflict with the express terms of the act of 1903, the act itself would prevail over such rules and regulations, for it was not within the power of the Secretary of Agriculture to extend the act of 1905 and by an order or regulation bring within its penal provisions matters which were not criminal under the terms of the acts of 1905 and 1903. In other words, there could be no conflict between the terms of the acts, whether the acts of 1905 or 1903, and the regulations made in pursuance of the acts, for in such an event the provisions of the act would control.
The second authority on which the opinion of this court was *495based was the fact that the cattle in question were shipped under a bill of lading calling for the " immediate slaughter ” of the cattle. The learned counsel for the movant insists that the court must have overlooked the fact that the record nowhere shows that this shipment of cattle was for immediate slaughter, and that the opinion to that effect, contained in the second division, makes a “ distinct mistake ” in saying that these cattle were shipped for immediate slaughter, whereas the certificate of the inspector shows that the word “ immediate ” was distinctly left out before the word " slaughter ”. The certificate of the bureau inspector appears to have been attached to the bill of lading on which these cattle moved, and this bill of lading, which is a part of the record, expressly declares “40 head of cattle for immediate slaughter, consigned to Embry, Tatum & Co., Montgomery, Ala., care of Union Stock Yards, Certificate No. AS1044.” There may have been a mistake as to this matter. The mistake was not made by the member of this court who wrote the opinion in this case. Paragraph 2 of section 2 of regulation 3 of the rules and regulations of the Department of Agriculture provides that “ Cattle of the free aTea not visibly diseased with scabies, but which may be a part of a diseased herd, may be shipped or transported interstate for immediate slaughter to any recognized slaughtering center where separate pens are provided for yarding exposed cattle,” provided certain conditions mentioned are observed and complied with; and paragraph 3 of this section provides that “ Cattle of herds of the quarantined area, which are not diseased with scabies, may be shipped, or otherwise moved interstate for immediate slaughter, upon inspection by a bureau inspector and when accompanied by a certificate from such inspector.”
This court is therefore of the opinion that the motion for a rehearing is without merit; that no rule of law or regulation of the Department of Agriculture or fact in evidence was overlooked; and that the decision of the court is in strict conformity to the provisions of the act of 1903 and the rules made in pursuance thereof. The motion is denied.
Rehearing denied.
Jenkins, P. J., and Stephens, J., concur.