Plaintiffs have a large and valuable business in the raising, and in the sale and transportation from Wisconsin to New York, of cattle for dairy and breeding purposes. Defendant, acting under state statutes, made and is enforcing an order to guard against Bang's disease, bovine infections abortion. The order requires that the cattle imported into New York for such purposes and also the herds from which they come shall be certified to be free from that disease by the chief sanitary official of the state of origin and that each shipment be accompanied by such a certificate.
Plaintiffs shipped 20 head from Wisconsin for delivery to one Bartlett in New York. The animals were accompanied by a certificate which was sufficient as to them, but there was nothing to show the freedom from Bang's disease of the herd of herds from which they came. For that reason defendant refused to permit them to be delivered, and so plaintiffs were compelled to take them out of New York.
Plaintiffs brought this suit for a temporary and perpetual injunction to restrain enforcement of the order. Their claim, so far as here material, is that the order is repugnant to the commerce clause (Const. art. 1, § 8, cl. 3) because in conflict with federal statutes relating to interstate transportation of livestock. Cattle Contagious Diseases Acts: February 2, 1903, 32 Stat. 791, 21 U.S.C. §§ 111, 120-122 (21 USCA §§ 111, 120-122); March 3, 1905, 33 Stat. 1264, 18 U.S.C. § 118 (18 USCA § 118), and 21 U.S.C. §§ 123-127 (21 USCA §§ 123-127). Their application for a temporary injunction was brought on for hearing before a specially constituted court. 28 U.S.C. § 380 (28 USCA § 380). Defendant answered, and, upon stipulation of the parties, plaintiffs' motion for interlocutory decree and defendant's motion to dismiss the complaint were submitted upon the pleadings, the affidavit of one of the plaintiffs, the affidavit of defendant, and affidavits of others in his behalf. Temporary injunction was denied, and the bill was dismissed.
The court made special findings of fact which include the following: Bang's disease prevails throughout the United States, and is one of the greatest limiting factors, both as to reproduction and milk yield. Undulant fever may be caused by the disease germs when introduced into the human body by drinking raw milk of an infected cow. The disease may generally be diagnosed about 60 days after infection, though the time may be considerably longer. Two blood tests are customarily made to detect the disease, but they may not disclose it in the incubative stage. A substantial percentage of cattle imported into New York under certificate that they have passed tests for the disease are shown to have been infected. There is a body of expert opinion that such cattle should only be admitted when certified to have come from a clean herd, and that by such a safeguard danger of infection would be greatly lessened. The disease is exceedingly infectious, and the defendant concluded that, in order to protect herd owners and milk consumers, he should require a certificate not only that imported cattle showed no infection, but that they came from herds free from disease. This resulted in the order. By reason of danger of infection from the disease, many states of the Union have imposed restrictions upon the admission of cattle. The federal Department of Agriculture, November 15, 1932, by letter to defendant, declared that the Department had issued no quarantine or regulations pertaining to Bang's disease, and that its policy for the present is to leave the control with the various states.