loose upon the commons, could and did come | Congress and regulations adopted or proin contact with the infected cattle, and con- mulgated by the Secretary of Agriculture." tracted Texas cow fever. That the company A demurrer was filed by the plaintiff to knew or could have known, by the exercise the amended answer. of reasonable care, that the cattle had infectious germs when unloaded, having been brought from an infected district, in conflict with well-known quarantine laws. A general demurrer was interposed by defendant and overruled. After an answer of general denial the defendant filed an amended answer: The plaintiff filed an amended petition, the affirmative allegations of which were controverted. This amended petition sets forth: "The plaintiff, J. U. McKendree, comes, and by leave of the court amends his petition, and says that the defendant, Illinois Central Railroad Company, on the 13th day of June, 1903, received one car of cattle at Grand Junction, Tennessee, to be transported to the town of Arlington, Kentucky, and on the 13th day of said month unloaded them in the stock pens in said town. "Further answering herein, the defendant says that the claims of the plaintiff herein asserted are based upon a certain alleged act of Congress of the United States of America approved February 2, 1903, entitled 'An Act to Enable the Secretary of Agriculture to More Effectually Suppress and Prevent the Spread of Contagious and Infectious Diseases of Live Stock, and for Other Purposes,' which act is published and contained in volume 32, United States Statutes at Large, beginning at page 791, chapter 349. and also in a supplement to the United States Compiled Statutes issued in 1903, by the West Publishing Company, St. Paul, Minnesota, beginning at page 372 of said volume (U. S. Comp. Stat. Supp. 1905, p. 613), and said claims are further based upon certain alleged regulations adopted and promulgated by the Secretary of Agriculture on March 13, 1903, pursuant to the authority attempted to be conferred upon him by said alleged act of Congress above mentioned, ap-ceived said cattle south of said quarantine proved February 2, 1903. "The defendant says that said act of Congress hereinbefore mentioned, and said regulations adopted by the Secretary of Agriculture, as hereinbefore stated, are each and all of them repugnant to and in contravention of the Constitution of the United States of America, and in excess of the powers of Congress and of the Secretary of Agricul[516]ture under the Constitution of the United States, and they are each and all, therefore, unconstitutional and void, and, under the Constitution of the United States, this defendant has the right, privilege, and immunity of being exempt from the assertion or prosecution of any claims against it based upon or arising under such act of Congress or said regulation, or any of them, and this defendant, as permitted by § 709 of the Revised Statutes of the United States (U. S. Comp. Stat. 1901, p. 575), hereby specially sets up and claims and pleads in defense of this action the right and privilege and immunity which is secured to it by the Constitution of the United States, to be exempt from all suits and prosecutions and all claims against it based upon or arising under such unconstitutional and void act of "That the town of Arlington is a small town, located on defendant's road in this, Carlisle, county, and defendant's stock pens are located adjacent to the public highway and commons, and that Grand Junction, Tennessee, is located on defendant's road and south of the quarantine line that was established on the 14th day of March, 1903, by and under the existing quarantine laws, and that said quarantine line, beginning on the Mississippi river, at the southeast corner of the state of Missouri, at the western boundary of Tennessee.' [Here follows a description of the quarantine line through the body of the state of Tennessee as set forth in amendment No. 4 to B. A. I., *Or- [517 der No. 107.] And that the defendants re line, and transported them north and out of a quarantine district, and south of the said quarantine line, and transported them north through the state of Tennessee into this county and state, and unloaded them in the town of Arlington, and placed them in their stock pens adjacent to the public highway and commons, where plaintiff's cows came in contact with the germ of Texas cow fever that said cattle had on them when put in the pens as aforesaid; that said stock pens were suffered and permitted to remain open and exposed to cattle after the removal of said cattle, without disinfecting, or any other effort to protect exposed stock, and plaintiff's cows contracted Texas cow fever from said germs produced from said cattle while in said stock pens, to the damage of plaintiff. "Wherefore he prays as in his original petition." The court sustained the demurrer to the amended answer of the defendant, and upon the issue joined, the case was sent to the jury. A verdict and judgment were rendered against the railroad company, and in favor of the plaintiff below. There was no dispute as to the transportation of the cattle from a point south of the quarantine line to a point north thereof, and the placing of them in pens at Arlington. The court, over the defendant's objection, submitted the case to the jury upon the questions of whether the transported cattle were infected, and, if so, whether the plaintiff's cattle contracted the disease from them while they were in the pens of the defendant company at Arlington. The presiding judge of the Carlisle circuit court filed the following certificate: "I, R. J. Bugg, sole presiding judge of the circuit court of Carlisle county, in the state of Kentucky, now and at the time of the trial of the above entitled cause, do hereby certify: "That, upon the trial of said cause, the defendant, Illinois Central Railroad Company, relied for its defense upon certain rights, privileges, and immunities specially [518] claimed by it under *the Constitution of the United States of America, and it insisted upon its said rights, privileges, and immunities throughout the trial of said action, and in the assertion of them it claimed and contended that the various regulations and orders made and promulgated by the Secretary of Agriculture, and offered in evidence on behalf of the plaintiff herein over the objections of defendant, were unconstitutional, null, and void, as being in excess of the powers conferred, or which could be conferred, by act of Congress upon the Secretary of Agriculture under the Constitution of the United States of America, and that the said act of Congress, approved February 2, 1903, under which the Secretary of Agriculture assumed to promulgate said orders and regulations, was itself unconstitutional, null, and void, as being in conflict with the Constitution of the United States of Ameri ca, and in excess of the powers conferred by it upon the Congress. “Said defendant, Illinois Central Railroad Company, further contended throughout the trial of said cause that no right of action against it accrued to the plaintiff by reason of any of the alleged regulations or orders made or promulgated by the Secretary of Agriculture, and offered in evidence upon the trial of this action, or by reason of the alleged failure on the part of the defendant to observe or to comply with any of said regulations or orders, on the ground that the said regulations or orders did not assume or attempt to give, and that the said act of Congress did not assume or attempt to give, to the plaintiff herein, or to any other in like situation, a remedy by way of civil action against the defendant herein for its alleged breach of any of said regulations or orders made or promulgated by the Secretary of Agriculture, and throughout the trial of said action the defendant, Illinois Central Railroad Company, specially set up and claimed, even if said act of Congress and said regulations and orders were valid under the Constitution and laws of the United States, stiH it had a right, privilege, or immunity under the said act of Congress or the said regulations or orders, from any liability to the plaintiff, *J. U. McKendree,[519] in a civil action for damages claimed on account of its alleged breach of said regulations or orders. "In allowing the said regulations or orders of the Secretary of Agriculture to be given in evidence before the jury, and in overruling the motion of defendant to peremptorily instruct the jury to return a verdict in its favor, the Carlisle circuit court disallowed the various contentions made as above stated on behalf of the Illinois Central Railroad Company, and denied the claims made by it of the rights, privileges, or immunities specially claimed by it as above stated, and held that the various claims made by it were not well founded in law under the Constitution and laws of the United States of America, and the claims of the plaintiff herein were established and a judgment in his favor rendered solely by reason of defendant's alleged breach of said regulations and orders." The testimony tended to show that the cows of the plaintiff came in contact with cattle transported by the railroad company from a point south of the quarantine line set forth in the amended petition. On March 13, 1903, the Secretary of Agriculture, acting under cover of the act of February 2, 1903 (32 Stat. at L. 791, chap. 349, U. S. Comp. Stat. Supp. 1905, p. 613), entitled "An Act to Enable the Secretary of Agriculture to More Effectually Suppress and Prevent the Spread of Contagious and Infectious Diseases of Live Stock, and for Other Purposes," established a quarantine line from west to east throughout the United States, from California to Maryland, and forbidding the transportation of cattle from points south of the line to points north of the line, except in the manner in the said order specified. "9. Section 9 of the order provided: Violation of these regulations is punishable by a fine of not less than one hundred dollars nor more than one thousand dollars, or by imprisonment not more than one year, or by both such fine and imprisonment." By amendment of March 14, 1904, the Secretary of Agriculture adopted as a quarantine line a line running from west to east [520] of the state of Tennessee, from the south of which the cattle said to have infected those of the plaintiff were transported and placed in pens in a manner not in conformity | Federal question was necessarily involved, with the order. Messrs. J. M. Dickinson and Edmund F. Trabue submitted the cause for plaintiff in and that the judgment could not have been rendered without deciding that question, then the certificate is admissible to show that it was raised, and the attention of the court called to it before judgment, and that the court did in fact pass on it. error. Mr. Blewett Lee was on the brief: The case at bar is one of that comparaGulf & S. I. R. Co. v. Hewes, 183 U. S. tively rare class where a decision either way necessarily involves a decision against 66, 68, 46 L. ed. 86, 87, 22 Sup. Ct. Rep. 26; a claim to a Federal right, so that either Armstrong v. Athens County, supra; Parparty, if defeated, would have the right to melee v. Lawrence, 11 Wall. 36, 39, 20 L. appeal to the Supreme Court of the United ed. 48, 49; Brown v. Atwell, 92 U. S. 327, States. Each of the contending parties 330, 23 L. ed. 511, 513; Gross v. United based his right upon the provision of the States Mortg. Co. 108 U. S. 477, 486, 27 L. act of February 2, 1903, and claimed a right, ed. 795, 798, 2 Sup. Ct. Rep. 940; Roby v. privilege, or immunity thereunder, the Colehour, 146 U. S. 153, 160, 36 L. ed. 922, plaintiff claiming that it gave him a right 924, 13 Sup. Ct. Rep. 47; Dibble v. Bellingof action against the defendant, the defend-ham Bay Land Co. 163 U. S. 63, 70, 41 ant claiming that it gave him an immunity L. ed. 72, 74, 16 Sup. Ct. Rep. 939; Yazoo from civil suit, and also that the Constitu- & M. Valley R. Co. v. Adams, 180 U. S. tion gave him immunity from liability. 41, 48, 45 L. ed. 415, 418, 21 Sup. Ct. Rep. Matthews v. Zane, 4 Cranch, 382, 2 L. ed. 654; Buel v. Van Ness, 8 Wheat. 312, 324, 5 L. ed. 624, 627; Palmer v. Hussey, 119 U. S. 96, 30 L. ed. 362, 7 Sup. Ct. Rep. 158; McCormick v. Market Nat. Bank, 165 U. S. 538, 545, 41 L. ed. 817, 820, 17 Sup. Ct. Rep. 433. It is quite immaterial that the state court held valid the statutes of the United States and the authority exercised thereunder which were questioned by the defendant, for the ground of appeal is that the state court decided against a right, privilege, or immunity claimed under the Constitution or the statutes of the United States. Trebilcock v. Wilson, 12 Wall. 687, 20 L. ed. 460; Pennywit v. Eaton (Scott v. Eaton) 15 Wall. 380, 21 L. ed. 72. No particular form of words is needed to raise the Federal question. Dewey v. Des Moines, 173 U. S. 193, 199, 43 L. ed. 665, 666, 19 Sup. Ct. Rep. 379; Green Bay & M. Canal Co. v. Patten Paper Co. 172 U. S. 58, 67, 43 L. ed. 364, 368, 19 Sup. Ct. Rep. 97. The record shows that the question was necessarily involved in the decision. Great Western Teleg. Co. v. Purdy, 162 U. S. 329, 334, 335, 40 L. ed. 986, 989, 990, 16 Sup. Ct. Rep. 810. In such case the certificate of the presiding judge will be looked to to ascertain whether the question was in fact raised. Armstrong v. Athens County, 16 Pet. 281, 285, 10 L. ed. 965, 966; Lawler v. Walker, 14 How. 149, 153, 14 L. ed. 364, 366; Medberry v. Ohio, 24 How. 413, 414, 16 L. ed. 739. The certificate of the presiding judge is not merely waste paper. It cannot of itself invest this court with jurisdiction, it is true; but, if the record discloses the fact that a 256. 166 U. S. 648, 657, 660, 41 L. ed. 1149, 1152, F. G. Oxley Stave Co. v. Butler County, 1153, 17 Sup. Ct. Rep. 709; Boston Beer Co. v. Massachusetts, 97 U. S. 25, 30, 24 L. ed. 989, 991; Nutt v. Knut, 200 U. S. 12, 50 L. ed. 348, 26 Sup. Ct. Rep. 216. The Federal questions were sufficiently presented. Powell v. Brunswick County, 150 U. S. 433, 440, 37 L. ed. 1134, 1136, 14 Sup. Ct. 223, 50 L. ed. 157, 161, 26 Sup. Ct. Rep. 31; Rep. 166; Marvin v. Trout, 199 U. S. 212, Co. 172 U. S. 58, 43 L. ed. 364, 19 Sup. Ct. Green Bay & M. Canal Co. v. Patten Paper Rep. 97. is very similar to Missouri, K. & T. R. Co. Upon the question of jurisdiction the case v. Haber, 169 U. S. 613, 621, 42 L. ed. 878, 881, 18 Sup. Ct. Rep. 488. Where a statute is couched in terms so broad as to exceed the limits of the power of the legislature to enact it, the court will not, by construction, limit the statute to the scope which might constitutionally the statute unconstitutional. be given it by the legislature, but will hold United States v. Reese, 92 U. S. 214, 100 U. S. 82, 98, 99, 25 L. ed. 550, 553, 554; 221, 23 L. ed. 563, 565; Trade-Mark Cases, Allen v. Louisiana, 103 U. S. 80, 85, 26 L. ed. 318, 319; United States v. Harris, 106 U. S. 629, 641, 642, 27 L. ed. 290, 294, 295, 1 Sup. Ct. Rep. 601; Poindexter v. Greenhow, 114 U. S. 270, 305, 29 L. ed. 185, 197, 5 Sup. Ct. Rep. 903, 962; Spraigue v. Thompson, 118 U. S. 90, 94, 30 L. ed. 115, '116, Sup. Ct. Bep. 988; Baldwin v. Franks, 120 U. S. 678, 685, 689, 30 L. ed. 766, 768, Even an act of Congress covering legitimate as well as illegitimate fields of legislation in a single provision cannot be rendered effective by holding it invalid as to the field wherein Congress had no power to legislate. United States v. Reese, Trade-Mark Cases, Spraigue v. Thompson, Baldwin v. Franks, and Conolly v. Union Sewer Pipe Co. supra. Attorney General Moody, Solicitor General Hoyt, and Assistant Attorney General McReynolds submitted the cause for the United States in support of suggestion of lack of jurisdiction: 942, 15 Sup. Ct. Rep. 777; Clarke v. McDade, 165 U. S. 168, 172, 41 L. ed. 673, 674, 17 Sup. Ct. Rep. 284; Marvin v. Trout, 199 U. S. 212-224, 50 L. ed. 157-161, 26 Sup. Ct. Rep. 31. Under the decisions of this court, the alleged Federal question referred to in the certificate was not raised in the court below at the proper time and in the proper way. Spies v. Illinois (Ex parte Spies) 123 U. S. 181, 31 L. ed. 80, 8 Sup. Ct. Rep. 21; Lawler v. Walker, 14 How. 152, 14 L. ed. 365; Brooks v. Missouri, 124 U. S. 394, 31 L. ed. 454, 8 Sup. Ct. Rep. 443; Leeper v. Texas, 139 U. S. 467, 35 L. ed. 226, 11 Sup. Ct. Rep. 579; Powell v. Brunswick County, 150 U. S. 439, 37 L. ed. 1136, 14 Sup. Ct. Rep. 166; Dibble v. Bellingham Bay Land Co. 163 U. S. 69, 70, 41 L. ed. 74, 16 Sup. Ct. Rep. 939; Yazoo & M. Valley R. Co. v. Adams, 180 U. S. 41, 45 L. ed. 415, 21 Sup. Ct. Rep. 256. Where a Federal question is raised in the To give this court jurisdiction the Fed-state court, the party who brings the case eral question must have been distinctly to this court cannot raise here another Fedraised and passed upon by the state court. eral question which was not raised below. It cannot originate in the certificate, assignments of error, or brief. Allen v. Arguimbau, 198 U. S. 149, 49 L. ed. 990, 25 Sup. Ct. Rep. 622; F. G. Oxley Stave Co. v. Butler County, 166 U. S. 648, 41 L. ed. 1149, 17 Sup. Ct. Rep. 709; Sayward v. Denny, 158 U. S. 180, 39 L. ed. 941, 15 Sup. Ct. Rep. 777; Powell v. Brunswick County, 150 U. S. 433, 37 L. ed. 1134, 14 Sup. Ct. Rep. 166; Manning v. French, 133 U. S. 186, 33 L. ed. 582, 10 Sup. Ct. Rep. 258; Felix v. Scharnweber, 125 U. S. 54, 31 L. ed. 687, 8 Sup. Ct. Rep. 759; Mississippi & M. R. Co. v. Rock, 4 Wall. 177, 18 L. ed. 381; Maxwell v. Newbold, 18 How. 511, 15 L. ed. 506. Where the state court sustains the validity of an act or authority called in question, its judgment cannot be reviewed by this court. McNulta v. Lochridge, 141 U. S. 327, 35 L. ed. 796, 12 Sup. Ct. Rep. 11; Jersey City & B. R. Co. v. Morgan, 160 U. S. 288, 40 L. ed. 430, 16 Sup. Ct. Rep. 276; Baker v. Baldwin, 187 U. S. 61, 47 L. ed. 75, 23 Sup. Ct. Rep. 19; Missouri ex rel. Carey v. Andriano, 138 U. S. 496, 499, 500, 34 L. ed. 1012, 1013, 1014, 11 Sup. Ct. Rep. 385. When review of the judgment of a state court is sought, the right, privilege, or immunity claimed under the Constitution must have been indicated specifically by appropriate language, or by necessary intendment, making it clear that a certain definite provision was relied on. Maxwell v. Newbold, 18 How. 511, 516, 517, 15 L. ed. 506, 508, 509; Sayward v. Denny, 158 U. S. 180, 184, 37 L. ed. 941, Chapin v. Fye, 179 U. S. 127, 45 L. ed. 119, 21 Sup. Ct. Rep. 71. Defendant's alleged right, under the act of February 2, 1903, to be exempt from a civil action by an individual for special damages occasioned him by a violation of the regulations of the Secretary of Agriculture made in pursuance thereof, is therefore clearly frivolous and fictitious, and made solely for the purpose of obtaining a review by this court of the constitutional questions involved. Hamblin v. Western Land Co. 147 U. S. 531, 533, 37 L. ed. 267, 270, 13 Sup. Ct. Rep. 353. No brief was filed for defendant in error. Mr. Justice Day delivered the opinion of the court: The government objects to the jurisdiction of this court to entertain the writ of error upon the ground that no Federal question is raised within the intent and meaning of § 709 of the Revised Statutes (U. S. Comp. Stat. 1901, p. 575). But we are of opinion that such questions were raised, and that we are required upon this record to review the judgment of the state court. An inspection of the record shows that the case as made by the plaintiff below upon the amended petition was to recover damages for the infection of his cattle because of coming in contact with cattle transported by the railroad company from a point south to a point north of the quarantine line established by the Secretary of Agriculture, in a manner violative of regulations for the transportation and keeping 203 U. S. of cattle established by the Secretary's or- gan County Nat. Bank v. Townsend, 139 U. S. der. It was not an action to recover for gence upon common-law principles. The complaint was amended in such form as to count upon the supposed right of action ac[525]cruing to the *plaintiff because of the violation of the Department's order. The demurrer of the plaintiff to the answer of the railroad company, setting forth the unconstitutionality of the law and the action of the Secretary thereunder, was sustained. 67, 35 L. ed. 107, 11 Sup. Ct. Rep. 496; Dunegli-buque & S. C. R. Co. v. Richmond, 15 Wall. 3, 21 L. ed. 118; Swope v. Leffingwell, 105 U. S. 3, 26 L. ed. 939; Anderson v. Carkins, 135 U. S. 483, 486, 34 L. ed. 272, 274, 10 Sup. Ct. Rep. 905; McNulta v. Lochridge, 141 U. S. 327, 35 L. ed. 796, 12 Sup. Ct. Rep. 11; Metropolitan Nat. Bank v. Claggett, 141 U. S. 520, 35 L. ed. 841, 12 Sup. Ct. Rep. 60; McCormick v. Market Nat. Bank, 165 U. S. 538, 546, 41 L. ed. 817, 820, 17 Sup. Ct. Rep. 433; California Nat. Bank v. Kennedy, 167 U. S. 362, 42 L. ed. 198, 17 Sup. Ct. Rep. 831." To the same effect is Rector v. City DeBank Co., supra. The certificate of the court below is given as to the extent and character of the Federal rights and immunities claimed by the defendant and clearly states that the defend-posit ant alleged the unconstitutionality of the statute and order, that the order was in excess of the power given the Secretary, and that the statute gave no remedy in damages. Upon this record, read in the light of the certificate, we think the defendant raised Federal questions as to the constitutionality of the law, and, if constitutional, whether the Secretary's order was within the power The court left the case to the jury under therein conferred, and the right to a perinstructions to find a verdict for the plain-sonal action for damages, in such manner as tiff if it had been shown that the plaintiff's to give this court jurisdiction of them under cattle were infected by coming in contact § 709, Rev. Statutes. with those transported by the railroad company. It therefore necessarily decided that the act was constitutional and gave a right to recover damages for breach of the requirements of the Secretary made in pursuance thereof, and that the Secretary's order was not in excess of the statutory power given. The amended complaint, as we have said, counted upon the liability in this form. The traverse of the amended complaint made the issue. The certificate did not originate the Federal question. "It is elementary that the certificate of a court of last resort of a state may not import a Federal question into a record, where otherwise such question The constitutional objections urged to the does not arise; it is equally elementary that validity of the statute of February 2, 1903, such a certificate may serve to elucidate the and the Secretary's order, No. 107, purportdetermination whether a Federal questioning to be made under authority of the statexists." Rector v. City Deposit Bank Co. ute, raise questions of far-reaching impor200 U. S. 405-412, 50 L. ed. 527-529, 26 Sup. tance as to the power of Congress to authorCt. Rep. 289, 290; Marvin v. Trout, 199 U.ize the head of an executive department of S. 212, 223, 50 L. ed. 157, 161, 26 Sup. Ct. Rep. 31. This case comes within the principle decided in Nutt v. Knut, 200 U. S. 12, 50 L. ed. 348, 26 Sup. Ct. Rep. 216, in which the court said: "A party who insists that a judgment cannot be rendered against him consistently with the statutes of the United States may be fairly held, within the meaning of § 709, to assert a right and immunity under such statutes, although the statutes may not give the party himself a personal or affirmative right that could be enforced by direct suit [526]against his adversary. *Such has been the view taken in many cases where the authority of this court to review the final judgment of the state courts was involved. Lo The railroad company, by the proceedings and judgment in this case, was denied the alleged Federal rights and immunities specially set up in the proceedings, in the enforcement of a statute and departmental orders averred to be beyond the constitutional power of Congress and the authority of the Secretary of Agriculture, and in the rendition of a judgment for damages in an action under the statute and order, in opposition to the insistence of the defendant that, even if constitutional, the statute did not confer such power or authorize a judgment for damages. the government to make orders of this We But we are of opinion that it is unneces- |