ILLINOIS CENTRAL RAILROAD COMPANY v. McKENDREE

after making the foregoing statement, 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 section 709 of the Revised' Statutes. 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 show's that the cáse 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 of cattle established by the Secretary’s order.

It was not an action to recover for negligence upon common-law principles. The complaint was amended in such form as to count upon the supposed right of action accruing to the *525 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.

The certificate of the court below is given as to the extent and character of the Federal rights and immimities claimed by the defendant, and clearly states that the defendant alleged the unconstitutionality of the statute and omer, that the order was in excess of the power given the Secretary, and that the statute' gave no' remedy in damáges.

The court left the case to the jury under instructions to find a verdict for the plaintiff if it had been shown that the plaintiff’s cattle were infected by coming in contact 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 madé the issue. The certificate did not originate the Federal question. “It is elementary that the certificate of a court of last resort may not import a Federal question into a record where otherwise such a question does not arise; it is equally elementary that such a certificate may serve to elucidate the determination whether a Federal question exists.” Rector v. City Deposit Bank, 200 U. S. 405, 412; Marvin v. Trout, 199 F. S. 212, 223.

This case comes within the principle decided in Nutt v. Knut, 200 U. S. 12, in which the court said:

“A party who .insists that a judgment cannot be rendered against him consistently w-ith the statutes of the United States may be fairly held, within the meaning of section 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 against his ad *526 versary. Such has been the view taken in many cases where the authority of this court t.o review the final judgment of the state courts was involved. Logan County Nat. Bank v. Townsend, 139 U. S. 67; Railroads v. Richmond, 15 Wall. 3; Swope v. Leffingwell, 105 U. S. 3; Anderson v. Carkins, 135 U. S. 483, 486; McNulta v. Lochridge, 141 U. S. 327; Metropolitan Nat. Bank v. Claggett, 141 U. S. 520; McCormick v. Market Nat. Bank, 165 U. S. 538, 546; California Nat. Bank v. Kennedy, 167 U. S. 362.”

To the same effect is Rector v. City Deposit Bank, 200 U. S. supra.

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 with the power therein conferred, and -the right to a personal action for damages in such manner as to give this court jurisdiction of them under section 709, Rev. Stat.

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 constitutional objections urged to the validity of the statute of February 2, 1903, and the Secretary’s order, No. 107, purporting to be made under authority of the statute, raise questions of far-reaching importance as to the power of Congress to authorize the head of an executive department of tne Government to make orders of this character,' alleged to be an attempted delegation of the legislative power solely vested by the Constitution in Congress. These questions, it is suggested by the counsel for the Government, have become *527 academic by reason of the passage of the later act of March 3, 1905, 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. 33 Stat. 1264, U. S. Comp. Stat., 1901, Supplement of 1905, p. 617.

But we are of opinion that it is unnecessary to determine' them in this case. We think the defendant was right m the contention that, if the act of February 2, 1903, was constituí tional, and rightfully conferred the power upon thé Secretary-of Agriculture to make orders and regulations concerning interstate commerce, there was no power conferred upon the- Secretary to make regulations concerning intrastate commerce, over which Congress has no control, and • concerning 'which we do -not think this act, if it could be otherwise sustained, intended to confer power upon him. Assuming, then, for this purpose, that the Secretary was legally authorized to make orders and regulations concerning interstate commerce, we find that on March 13, 1903, he adopted, in the Order number 107, the following regulation:

“2. Whenever any State or Territory located above or below said quarantine line, as above designated, shall duly establish a different quarantine line, and obtain the necessary legislation to enforce said last-mentioned line strictly and completely within the boundaries of said State or Territory, and said last above-mentioned line and the measures taken to enforce it are satisfactory to the Secretary of Agriculture, he may, by a special order, temporarily adopt said State or Territory line.

“Said adoption will apply only to that portion of said finé specified, and may cease at any time the Secretary may deem it best for the interests involved, and in no instance shall said modification exist longer than the period specified in said special order; and, at the expiration of such time, said quarantine fine shall revert, without further order, to the fine first above described.

*528 “Whenever any State or'Territory shall establish a quarantine line, for above purposes, differently located from the above described line, and shall obtain by legislation the necessary laws to enforce the same completely and strictly, and shall desire a modification of the Federal quarantine line to agree with such State or Territory line, .the proper authorities of such State or Territory shall forward to the Secretary of. Agriculture a true map or description of such line and a copy of the laws for enforcement of the same, duly authenticated and certified.”

And afterward, on March 14, 1903, the Secretary adopted the quarantine line agreed to ,be established by the State off Tennessee, and said to run about the middle of the State, and from the south of which the cattle in this case were trans*ported, and provided:

“And whereas said quarantine line,.as above set forth, is satisfactory to this Department, and legislation has .been enacted by the State of Tennessee to enforce said quarantine line, therefore th.e above line is adopted for the State of Tennessee by this Department for the period beginning with the date of this order and ending December 31, 1903, in lieu of the quarantine line described in the order of March 13, 1903, for said area, unless otherwise ordered.”

The terms of Order 1.07 apply to all cattle transported from the south of this line to parts of the United States north thereof. It would, therefore, include cattle transported within the State of Tennessee from the south of the ■ fine as well as those from outside that State; there is no exception in the order, and in terms it includes all .cattle transported from the south of the line, whether within or without the State of Tennessee. It is urged by the Government that it was not the intention of the Secretary to make provision for intrastate commerce, as the recital of the order shows an intention to adopt the state fine, whén the State by its legislature has passed the necessary laws to enforce the same completely and strictly. But the order in terms applies alike to inter *529 state and intrastate commerce. A party prosecuted for violating this, order would be within its terms if the cattle were brought from the south of theJine to a point north of the Une within the State of Tennessee. It is true the Secretary recites that legislation has been passed by the State of Tennessee to enforce the quarantine line, but he does not Hmit the order to interstate commerce coming from the south of the Une, and,’ as we have said, the order in terms covers it. We do not say that the state Une might not be adopted in a proper case, in "the exercise of Federal authority, if Umited in its effect to interstate commerce coming from below the line, but that is not the present order, and we must deal with it as we find it. Nor have we the power to so Umit the Secretary’s order as to make it apply only to interstate commerce, which it is urged is all that is here involved. For aught that appears’ upon the face- of the order, the Secretary intended it to apply to all commerce, and whether, he would have made such an order, if strictly Umited to interstate commerce, we have no means of knowing. The order is in terms single, and indivisible. In United States v. Reese, 92 U. S. 214, 221, upon this subject, this, court said:

“We are, therefore;'directly called upon to decide whether -a penal- statute enacted by Congress, with its Umited powers, which is in- general language broad enough to cover wrongful acts without as well as within the constitutional jurisdiction, can be Umited by judicial construction so as to make it' operate only on that which Congress may rightfully prohibit and punish. For this purpose we must take these sections of the statute as they are. We are not able to reject a part which is unconstitutional and retain the remainder, because it is not possible to separate that which is unconstitutional, if there be any -such, from that which is not. The proposed effect is not to be attained by striking out or disregarding words that are in the section, but by inserting those .that are not now there. Each of the sections must stand as a whole, or fall altogether. The language is plain. There is no room for construction, *530 unless it be as to the effect-of the Constitution. The question, then, to be determined is, whether we can introduce words of limitation into a penal 'statute so as- to make it specific, when, as expressed, it is general only.”

And the court declined to make such limitation.

And in Trade-Mark cases, 100 U. S. 82, 99, the court said:

“If we should, in the case before us, undertake to make by judicial construction a law which Congress did not make, it is quite probable we should do what, if the matter were now before that body, it would be unwilling to do, namely, make a trade-mark law which is only partial in its operation, and which would complicate the rights rvhich parties would hold, in some instances under the act of Congress, and in others under state law. Cooley, Const. Linn, 178, 179; Commonwealth v. Hitchings, 5 Gray (Mass.), 482.”

And see United States v. Ju Toy, 198 U. S. 253, 262, 263.

We think these principles apply to the case at bar, and that this order of the Secretary, undertaking to make a stringent regulation with highly penal consequences, is single in character, and includes commerce wholly within the State, thereby exceeding any authority which Congress intended to’ confer upon’ Mm by the act in question, if the same is a valid enactment. We, therefore, find it unnecessary to pass upon the other questions which were thought to be involved in the case at bar.

The judgment of the state court will be

Reversed and the cause remanded to it for further proceedings not inconsistent with this opinion.