On Petition for Rehearing.
The defendant has presented a petition for rehearing in which it is alleged, among other things, that the court has mistakenly assumed in the opinion filed that the law of Washington permitted the importation of the cattle in question into that state upon certain conditions with which the defendant might have complied. The part of the opinion in which the alleged mistake occurs reads in this way:
“But if it ¡tile defendant] solicited their shipment, knowing the cattle were from the quarantined area, as found by the court, and agreed to transport them to Seattle through said states, it was its duty to be prepared to comply with the conditions upon which it might lawfully carry them, and it cannot justify its refusal to accept them for such carriage upon the ground that it was not prepared to comply with such conditions.”
In their original brief counsel for defendant say:
“The states through which the Burlington and Northern Pacific Railroads ran forbade the carriage of cattle when unaccompanied by a bill of health, and when the road had no quarantine pens.”
*20And sections of the statutes of Missouri, Nebraska, Wyoming, Montana, and sections 3216-3219 and 6431 of the Washington Code (1896) are cited in support of the statement. This impliedly admits' that if a “bill of health” so-called, had accompanied the cattle, or if' the roads had had the requisite quarantine pens in which to unload the cattle during transit, they might under the state laws have lawfully carried them to their destination, and the state statutes cited were not specifically noticed in the opinion. It is still admitted, as we understand counsel for defendant, that the laws of each of these states, except Washington, conform substantially to the rules and regulations of the Department of Agriculture, made pursuant to the laws of Congress concerning the interstate transportation of Southern cattle, and that the cattle in question might lawfully have been carried into or through those states upon complying with such laws and regulations. In the petition for rehearing, section 6431 of the Code of Washington (1896) is set out for the first time, as follows:
“Any person or persons introducing or bringing into said state any Texas cattle, or cattle infected with the Texas cattle disease, or Spanish fever, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be imprisoned in the county jail for a term not exceeding 12 months, or fined in a sum not less than $5,000, or be both fined and imprisoned, in the discretion of the Court.” ^
And section 3216 reads:
“The introduction of Texas cattle or cattle infected with what is known, as the Texas cattle disease or splenetic fever, into the state of Washington is hereby prohibited.”
It is the contention of the defendant that these sections do not conflict with any law of the United States and forbade, under the penalty prescribed, its carriage of them into the state of Washington and justified its refusal to receive them; and Reid v. Colorado, 187 U. S. 137, 23 Sup. Ct. 92, 47 L, Ed. 108, is cited in support thereof. We are unable to assent to this. The sections quoted from the Washington Code are in no sense an inspection law, or other proper police regulation, -but by their terms exclude absolutely from the state of Washington all Texas cattle, though they may be entirely free from disease of any kind. The sections were enacted in 1869, and are so broad as to fall, apparently, within the class of legislation condemned by the Supreme Court in Hannibal & St. J. Ry. Co. v. Husen, 95 U. S. 465, 24 L. Ed. 527, and later cases in which the rule there announced is. reaffirmed. Whether or not these sections might be upheld in part, as suggested by counsel for defendant, we need not stop to inquire; for, if not repealed or modified by later acts, they must, upon the enactment by Congress of laws within its rightful power to enact, and with which they conflict, yield to the congressional act.
In 1895 the Legislature of Washington passed an act creating the office of State Veterinarian, and empowered him to establish quarantine against contagious and infectious diseases, and, with the concurrence of the Governor of the state, make the necessary rules and regulations with respect thereto, and for this purpose he and the Governor were authorized to ¡co-operate with the government of .the United States in enforcing any law 'of Congress for the prevention. *21and spread of sucli diseases in that slate. Chapter 167, Laws Wash. 1895, incorporated as sections 4653-4657 in the Code of Washington (Pierce’s Code 1905 [sections 3050-3054, Ballinger’s Ann. Codes & St.]). It is quite probable that this act was passed in response to an invitation extended by the Secretary of Agriculture to the executive authority of the state of Washington, pursuant to section 3, c. 60, of the act of Congress of .May 29, 1884 (23 Stat. 33); and presumably the State Veterinarian and Governor of Washington have performed the duties required of them by this law, established the quarantine, and promulgated the requisite rules and regulations necessary for their co-operation with the Department of Agriculture of the United States in the enforcement of proper quarantine regulations for the prevention and spread of such diseases in the state of Washington. Counsel have not seen fit to furnish us with a copy of such quarantine order and the rules promulgated by the state officers pursuant to that .act, if any. We are justified in assuming that, if any were adopted, they do not conflict with the law of Congress and the rules and regulations established by the Secretary of Agriculture pursuant thereto. But however this may be, we are of the opinion that chapter 60 of the act of Congress of May 29, 1884, above authorizes the interstate shipment of cattle to market for slaughter, though they may be infected with the disease known as splenetic or Texas fever. Section 6 of that act contains a proviso as follows:
“ITovifled that the so-called splenetic or Texas fever shall not be considered a contagious, infectious or communicable disease within the meaning of this act, as to cattle being transported by rail to market for slaughter when the same are unloaded only to he fed and watered in lots on the way thereto.”
After the decision in the case of Reid v. Colorado, and obviously in view of that decision, Congress by its act of February 2, 1903 (32 Stat. 791 [U. S. Comp. St. Supp. 1909, p. 1183]), conferred upon the Secretary of Agriculture larger power, to be exercised exclusively by him, over the interstate movement of cattle infected with, or which have been exposed to, contagious, infectious, or communicable diseases. By sections 1 and 2, c. 349. of that act the Secretary of Agriculture is authorized and directed to establish from time to time such rules and regulations as he shall deem necessary concerning the interstate shipment of live stock, from any place within the United States into or through any other state or territory, which he may have reason to believe are infected with any infectious, contagious, or communicable diseases, and to take such measures as he may deem proper to prevent the introduction or dissemination of such diseases from one state or territory to another, whenever in his judgment such action is advisable, to guard against the spread of such contagion; and all such rules and regulations shall have the force of law. It is also provided that whenever an inspector of the Bureau of Animal Industry shall issue a certificate stating that he has inspected any cattle or other live stock which are about to be driven or transported from one state or territory to another, and has found them free from splenetic or Texas fever infection, or any other infectious, contagious, or communicable disease, such animals so inspected and cer*22tified may be driven or transported from such place into or through' any other state or territory without further inspection, except such as may be at any time ordered 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 for the purpose of'such inspection.
Pursuant to this authority the Secretary of Agriculture on March 10 and 13, 1903, promulgated Orders Nos. 10(5 and 10?', respectively, establishing a quarantine line and regulations to be observed by the carrier in the interstate shipment of cattle from an infected state or area, and gave public notice thereof, as directed by the act, to transportation companies, stockmen, and others, and that the disease known as splenetic, Southern, or Texas fever existed among- cattle in a designated area, which included the state of Texas. Section 4 of Order No. 10? provides “that cattle from said area may he transported by rail or boat for immediate slaughter,” and when so transported cer-. tain regulations must be observed, among which are that when any cattle in course of transportation from said area are unloaded above —north, east, or west of — the line so established, for food or water, or for other purposes, said cattle shall be placed in j^ards or pens set apart for infected cattle, and no other cattle shall be admitted thereto. The kind of pens into which the cattle shall be unloaded during transit and upon arrival at their destination is designated, and the observance is directed of all local applicable sanitary regu-r lations prescribed by -the proper officer of the state where they are unloaded.
It is true that Order No. 10? as amended March 14, 1903, so far as it adopted a quarantine line established by a state which was wholly within such state and not along its borders, was held invalid by the Supreme Court as to the portion of such line wholly within such state, because it was applicable to intrastate as well as the interstate shipments of cattle. Railroad Co. v. McKendree, 203 U. S. 514, 27 Sup. Ct. 153, 51 L. Ed. 298. But it is not claimed that this affects the regulations to be observed during the transportation from one state to another and upon the arrival of the cattle at their destination.
The cattle in question were shipped from Texas for immediate slaughter upon their arrival at Seattle, and the Missouri, Kansas & Texas Company was so advised at the time of their shipment. The laws of Congress and the orders of the Secretary of Agriculture made pursuant thereto are controlling, and sections 3216 and 6431 of the Code of Washington (1896), as above quoted, if in force at the time of that shipment, are in direct conflict therewith, and must yield to them. Gulf, etc., Ry. Co. v. Hefley, 158 U. S. 98-102, 103, 15 Sup. Ct. 802, 39 L. Ed. 910; Asbell v. Kansas, 209 U. S. 251-257, 258, 28 Sup. Ct. 485, 52 L. Ed. 778.
Whether or not the defendant might rightly have refused to receive the cattle, if it had not joined with the Missouri, Kansas & Texas Company in the agreement with plaintiff for their transportation to Seattle, we need not determine, for it joined in that agreement prior to their shipment from Texas. After it so agreed and the Missouri, Kansas & Texas Company had performed its part of the agree*23ment by carrying the cattle to Kansas City, the defendant could not then refuse to receive them "because it had no separate pens in which to unload them during transit," the sole ground of its refusal to receive them, without incurring a legal liability for such refusal. We are therefore of the opinion that the defendant cannot escape legal responsibility for refusing to transport the cattle because it did not have the requisite pens "in which it could unload them (luring transit."
It is also, alleged that the opinion mistakenly says, "Nor is there any evidcncc or finding as to what defendant's published rate per car or otherwise was for the transportation of cattle from Kansas City to Seattle, or the joint rate from Texas common points to Seattle ;" for, it is said, there is such evidence. Whether SO or not the facts as found by the trial court are what control. Rev. St. U. S. §§ 649, 700 (U. S. Comp. St. 1901, pp. 525, 570); Martinton v. Fairbanks, 112 U. S. 670, 5 Sup. Ct. 321, 28 L. Ed. 862; The City of New York, 117 U. S. 72, 13 Sup. Ct. 211, 37 L. Ed. 84; Lehnen v. Dickson, 148 U. S. 71-72, 13 Sup. Ct. 481, 37 L. Ed. 373; U. S. Fidelity & Guaranty Co. v. Board of Com'rs, 145 Fed. 144-151, 76 C. C. A. 114. The trial court found that:
"Prior to May 10, 1903. the defendant h~d in effect a filed and published mb from Lorena and other rJ~C~.lS POIIIth to seattle."
The rate is not stated, but the finding obviously refers to the joint rate agreed upon between the clef endant and the Missouri, Kansas & Texas Company, which was filed with the Interstate Commerce Commission, to cover the shipment of plaintiff's cattle to Seattle. The cattle were tendered to the defendant in Kansas City on May 9th. On that (late the rate, according to the finding, was in effect, and the cost to plaintiff for transporting them from Kansas City to Seattle would then have been $185 per car, the defendant's share of the agreed rate, as the court found.
The petition for rehearing is denied.