[116]J. K. MULLEN and Charles D. McPhee, | in that court was that "if the loss of the Plffs. in Err.,



plaintiff's cattle was in consequence of dis-[117]
ease communicated by the cattle of the de-
fendant, its liability depends upon its acts
with reference to rules and regulations
which it was legally bound to observe."

(See S. C. Reporter's ed. 116-123.)

Review of a state judgment-highest state culture were as follows:



A writ of error from this court to review a state judgment cannot be maintained where such judgment is not that of the highest court of the state in which a decision could be had.


It must affirmatively appear from the record

that a decision could not have been had in
the highest court of the state, or a writ of
error to an inferior state court cannot be sus-



N ERROR to the Court of Appeals of the of that court which affirmed a judgment of the District Court of Arapahoe County, Colorado, in favor of the defendant, the Western Union Beef Company, in an action brought to recover damages for the loss of stock occasioned by the communication of an infectious disease from the cattle of the defendant to those of the plaintiff. Writ of error dismissed.

The regulations of the Secretary of Agri

Regulations Concerning Cattle Transporta-

United States Department of Agriculture,
Office of the Secretary,

Washington, D. C., February 5th, 1891.
To the Managers and Agents of Railroad and
Transportation Companies of the United
States, Stockmen and Others:

[No. 153.]

Argued and Submitted January 18, 1899. of Animal Industry, to Prevent the Exporta-
Decided February 20, 1899.
tion of Diseased Cattle, and to Provide
Means for the Suppression and Extirpation
of Pluro-pneumonia and Other Contagious

among Domestic Animals,"

In accordance with section 7 of the act of Congress approved May 29, 1884, entitled "An Act for the Establishment of a Bureau

the act of Congress approved July 14, 1890,
making appropriation for the Department
of Agriculture for the fiscal year ending
June 30, 1891, you are notified that a con-
tagious and infectious disease known an
splenetic or southern fever exists among
cattle in the following described area of the
From the 15th day
United States:
of February to the 1st day of December,
1891, no cattle are to be transported from
said area to any portion of the United States
north or west of the above-described line,
except in accordance with the following reg-

[ocr errors]

See same case below, 9 Colo. App. 497.

Statement by Mr. Chief Justice Fuller: This was an action brought by Mullen and McPhee against the Western Union Beef Company, in the district court of Arapahoe County, Colorado, to recover damages for loss of stock occasioned by the communication from cattle of defendant to cattle of plaintiffs of the disease known as splenetic or Texas fever, by the importation into Colorado of a herd of Texas cattle, in June, 1891, and suffering them to go at large, in violation of the quarantine rules, regulations, and orders of the United States Department of Agriculture, in accordance with the act of Congress approved May 29, 1884, entitled "An Act for the Establishment of a Bureau of Animal Industry," etc., 23 Stat. 31, chap. 60; and the act approved July 14, 1890, 26 Stat. 287, chap. 707; and in violation of the quarantine rules and regulations of the state of Colorado. The trial resulted in a verdict for defendant, on which judgment was entered. Plaintiffs sued out a writ of error from the court of appeals of the state of Colorado, and the judgment was affirmed, whereupon the present writ of error was allowed."

[Here followed a series of stringent rules
concerning the method to be pursued in
transporting cattle from the infected dis-

United States Department of Agriculture,
Office of the Secretary,
Washington, D. C., April 23d, 1891.
Notice is hereby given that cattle which
have been at least ninety days in the area
of country hereinafter described *may be[118]
moved from said area by rail into the states
of Colorado, Wyoming, and Montana for
grazing purposes, in accordance with the
regulations made by said states for the ad-
mission of southern cattle thereto.


1. That cattle from said area shall go into said states only for slaughter or grazing, and shall on no account be shipped from said states into any other state or territory_of the United States before the 1st day of December, 1891.

2. That such cattle shall not be allowed in pens or on trails or ranges that are to be The court of appeals held that the ques- occupied or crossed by cattle going to the tion of violation by defendant of the quaran-eastern markets before December 1, 1891, and tine rules and regulations of the state need that these two classes shall not be allowed not be considered because "upon sufficient to come in contact. evidence, it was settled by the jury in defendant's favor;" that "no question of negligence generally in the shipment and management of the cattle is presented by the record;" and that the theory on which the case had been tried below and was argued

3. That all cars which have carried cattle from said area shall, upon unloading, at once be cleaned and disinfected in the manner provided by the regulations of this department of February 5th, 1891.

4. That the state authorities of the states 635

of Colorado, Wyoming, and Montana, agree to enforce these provisions.

The court, after stating that the territory described in both orders included that from which the defendant's cattle were shipped, said: "It is the rules relating to the isolation of cattle moved from infected districts, and more particularly the second proviso of the second order, which were claimed to have been violated by the defendant."

And it was then ruled that the regulations were not binding, as it was not shown that the state had agreed to them; that they were not authorized by the statute; that "the second provision undertakes to regulate the duties in relation to them [the cattle], of the persons by whom they might be removed after their arrival in the state, and it is upon this provision that the plaintiffs' reliance is chiefly placed. After becoming domiciled within the state their management would be regulated by its laws and not by the act of Congress. Any violation of the Federal law in connection with the cattle would consist in their removal. The dispo[119]sition of them afterwards was not within the scope of the statute. [9 Colo. App. 497],

49 Pac. 425.

Messrs. T. B. Stuart and W. C. Kingsley
for plaintiffs in error.
Messrs. C. S. Thomas, W. H. Bryant,

and H. H. Lee for defendant in error.

*"Third. It shall have jurisdiction, not[120] final, in cases where the controversy involves a franchise or freehold, or where the construction of a provision of the Constitution of the state, or of the United States, is necessary to the decision of the case; also, in criminal cases, or upon writs of error to the judgments of county courts. Writs of error from, or appeals to, the court of appeals shall lie to review final judgments,

within the same time and in the same manby law for such reviews by the supreme ner as is now or may hereafter be provided court."

₪19) *Mr. Chief Justice Fuller delivered the termination of the case as to give this court jurisdiction to review upon that ground"

The supreme court of Colorado is the highest court of the state, and the court of appeals is an intermediate court, created by an act approved April 6, 1891 (Sess. Laws Colo. 1891, 118), of which the following are


"Section 1. No writ of error from, or appeal to, the supreme court shall lie to review the final judgment of any inferior court, unless the judgment, or in replevin the value found, exceeds two thousand five hundred dollars, exclusive of costs. Provided, this limitation shall not apply where the matter in controversy relates to a franchise or freehold, nor where the construction of a provision of the Constitution of the state or of the United States is necessary to the determination of a case. Provided, further, that the foregoing limitation shall not apply to writs of error to county courts."

opinion of the court:

We are met on the threshold by the objec-(Arapahoe County Comrs. v. [McIntire] tion that the writ of error runs to the judg- State Board of Equalization, 23 Colo. 137); ment of the court of appeals, and cannot be and, again, that "unless a constitutional maintained, because that is not the judgment question is fairly debatable, and has been of the highest court of the state in which a properly raised, and is necessary to the dedecision could be had. termination of the particular controversy, appellate jurisdiction upon that ground does not exist." Madden v. Day, 24 Colo. 418.

This record discloses that defendant insisted throughout the trial that the acts of Congress relied on by plaintiffs were unconstitutional if construed as authorizing the particular regulations issued by the Secretary.

"Sec. 4. That the said court shall have jurisdiction:

respect of its jurisdiction under these secThe supreme court of Colorado has held in tions, that whenever a constitutional quesadjudication of a case, an appeal or writ of tion is necessarily to be determined in the error from that court will lie; that "it matters but little how such question is raised, whether by the pleadings, by objections to evidence, or by argument of counsel, provided the question is by some means fairly brought into the record by a party entitled to raise it;" but "it must fairly appear from an examination of the record that a decision of such question is necessary, and also that the question raised is fairly debatable (Trimble v. People, 19 Colo. 187); and also that "when

it appears by the record that a case might well have been disposed of without construing a constitutional provision, a construction of such provision is not so necessary to a de

"First. To review the final judgments of inferior courts of record in all civil cases and in all criminal cases not capital.

"Second. It shall have final jurisdiction, subject to the limitations stated in subdivision 3 of this section, where the judgment, or in replevin the value found, is two thousand five hundred dollars, or less, exclusive of costs.

When plaintiffs offered the rules and regulations in evidence, which they contended defendant had violated, defendant *objected to[121] their admission on the two grounds that they were not authorized by the acts of Congress, and that, if they were, such acts were unconstitutional. The objection was overruled and defendant excepted.

The regulations having been introduced in evidence, plaintiffs called as a witness, among others, a special agent of the Department of Agriculture, who was questioned in respect of their violation, to which defendant objected and excepted on the same grounds.

At the conclusion of plaintiffs' case, a motion for nonsuit was made by defendant, the unconstitutionality of the acts under which the regulations were made being again urged, and an exception taken to the denial of the motion.

The trial then proceeded, and, at its close, defendant requested the court to give this instruction: "The court instructs the jury

that the act of Congress and the rules and regulations made under the same which the plaintiffs allege to have been violated, are not authorized by the Constitution of the United States, and are not valid subsisting laws or rules and regulations with which the defendant is bound to comply, and any violation of the same would not, of itself, be an act of negligence, and you are not to consider a violation of the same as an act of negligence in itself in arriving at a verdict in this case."

therewith would have constituted negligence per se, those courts would have been necessarily compelled to pass upon the constitutionality of the acts, which question was sharply presented by defendant. And it is also obvious that if the supreme court had been applied to and granted a writ of error, and that court had differed with the conclusions of the court of appeals, arrived at avart from constitutional objections, the validity of the acts and regulations would have been considered.

This was refused by the court and plaintiffs excepted. But the court charged the jury that the rule promulgated by the Secretary of Agriculture "would have the effect to give to this defendant notice that the United States authorities having in charge the animal industries, so far as the government of the United States may control it, were of the opinion that it was unsafe to ship cattle from Kimble county at the period of the year into Colorado and graze them upon lands that were being occupied by other cattle intended for the eastern market, or to allow them to commingle with them." To this modification of the instruction requested plaintiffs saved no specific exception.

After the affirmance of the judgment by the court of appeals, plaintiffs filed a petition for a rehearing, the eighth specification of which was that

This instruction was objected to and was not given, though no exception appears to have been thereupon preserved.

On behalf of plaintiffs the court was asked to instruct the jury as follows:

"If the jury are satisfied from the evidence that the defendant company failed to comply with paragraph two of the rules and reg. ulations of the United States Department of Agriculture of April 23, 1891, and that the defendant company did not put its cattle in pens or on trails or ranges that were to be occupied or crossed by the plaintiffs' cattle going to eastern markets before December, 1891, so that these two classes should not come in contact, then that constitutes negligence and want of reasonable care on the part of the defendant, and you need not look to any other evidence to find that the defend-ing. [122]ant did not use reasonable care in this case, and that the defendant was guilty of negligence."

*The court of appeals seems to have been of[123] opinion that after the cattle arrived in Colorado, Congress had no power to regulate their disposition, and hence that the regula tions were not binding. And the question of power involved the construction of a provision of the Constitution of the United States. At the same time its judgment may fairly be said to have rested on the view that the statutes did not assert the authority of the United States, but conceded that of the state, in this regard; and that the regulations were not within the terms of the statutes. But, if the case had reached the supreme court, that tribunal might have ruled that the judgment could not be sustained on these grounds, and then have considered the grave constitutional question thereupon aris

And although the supreme court might have applied the rule that where a judgment rests on grounds not involving a constitutional question it will not interfere, we cannot assume that that court would not have taken jurisdiction, since it has not so decided in this case, nor had any opportunity to do so.

We must decline to hold that it affirmatively appears from the record that a decision could not have been had in the highest court of the state, and, this being so, the writ of error cannot be sustained. Fisher v. Perkins, 122 U. S. 522 [30: 1192]. Writ of error dismissed.

PANY, Appt.,



"This court erred in holding and deciding that the rules and regulations promulgated by the Secretary of Agriculture on April 23, 1891, as shown by the record herein, were not applicable to the herd of cattle which the defendant in error imported into Colorado in June, 1891, as shown by the record herein, for the reason, as this court held, that after said cattle were domiciled in Colorado their management must be regulated by the state laws, and not by the act of Congress, and that the disposition of said cattle afterwards was not within the scope of Federal authority."


The right to issue an attachment "at the commencement of the suit, or at any time during its progress," as given by Ariz. Rev. Stat. 1887, tit. 4, chap. 1, ¶ 42, is taken away by the provision of the act of March 6, 1891, authorizing attachment at the issuance of summons, or at any time afterward.

It thus appears that if the trial court and the court of appeals had been of opinion that the Secretary's rules and regulations were within the terms of the authority conferred by the statutes, and that noncompliance

(See S. C. Reporter's ed. 123-130.)

law as to attachment--time of
issuing attachment-construction of stat


An attachment issued before the issuance of a summons is void under Ariz. Rev. Stat. 1887, 40, as amended by the act of March 6, 1891, allowing attachment "at the time of issuing the summons, or at any time afterward."

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APPEAL from a judgment of the SuON preme Court of the Territory of Arizona affirming a judgment of the District Court of the Fourth Judicial District in and for

Yavapai County, in said Territory, in favor
of James I. Gardner, appellee, against the
Henrietta Mining & Milling Company, in an
action in which an attachment was issued
and property sold upon the judgment. Re-
versed, and cause remanded for further pro-

The facts are stated in the opinion.
Messrs. Frank Asbury Johnson and
William H. Barnes for appellant.

Messrs. S. M. Stockslager and George C.
Heard for appellee.

[124] *Mr. Justice McKenna delivered the opinion of the court:

This is an appeal from a judgment of the supreme court of the territory of Arizona, affirming a judgment of the district court of the fourth judicial district in and for Yavapai county, for $12,332.08 in favor of appellee and against appellant, who was plaintiff in error below. The action was upon an open account and a large number of assigned accounts. An attachment was sued out and the mines and mining property of appellant company were seized. Judgment was rendered by default, and the property attached ordered sold.

The judgment is attacked on two grounds: (1) That there was no personal service on appellant; (2) that the attachment was void because the writ was issued before the

issuance of summons.

It is conceded that the appellant is an Illinois corporation, and that there was no per sonal service upon it. Was the attachment issued in accordance with the statutes of Arizona? If it was not, the judgment must be reversed. Pennoyer v. Neff, 95 U. S. 714 [24:565].

of the territory, or is a foreign corporation, or is acting as such; or,

"3. That he is about to remove permanently cut of the territory, and has refused to pay or secure the debt due the plaintiff; or, "4. That he secretes himself, so that the ordinary process of law cannot be served on him; or,

"5. That he has secreted his property, for the purpose of defrauding his creditors; or, "6. That he is about to secrete his property for the purpose of defrauding his credit

ors; or,

7. That he is about to remove his property out of the territory, without leaving sufficient remaining for the payment of his debts; or,

"8. That he is about to remove his property, or a part thereof, out of the county where the suit is brought, with intent to defraud

his creditors; or,

"9. That he has disposed of his property, in whole or in part, with intent to defraud

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ors; or,

"11. That he is about to convert his property, or a part thereof, into money, for the purpose of placing it beyond the reach of his creditors; or,

"12. That the debt is due for property obtained under false pretenses.

"41 (Sec. 2). The affidavit shall further state:

"1. That the attachment is not sued out for the purpose of injuring or harassing the defendant; and,

*"2. That the plaintiff will probably lose[126] his debt unless such attachment is issued.

"42 (Sec. 3). No such attachment shall issue until the suit has been duly instituted, but it may be issued in a proper case either at the commencement of the suit or at any time during its progress.

"43 (Sec. 4). The writ of attachment above provided for may issue, although the plaintiff's debt or demand be not due, and the same proceeding shall be had thereon as in other cases, except that no final judgment shall be rendered against the defendant until such debt or demand shall become due."

The record shows that the complaint was Paragraph 649 provides that "all civil filed December 4, 1894; that on the 24th of suits in courts of record shall be commenced that month affidavit and bond for attachment were filed and the writ was issued. by complaint filed in the office of the clerk of such court." Therefore, if paragraph 42 The return shows the seizure of the proper- (section 3) was in force at the time the ty on the 26th of December, the day sum-writ of attachment was issued, to wit, on the

mons was issued.

[125] *The Revised Statutes of Arizona of 1887, chapter 1 of title 4, provided for attachments and garnishments as follows:

"46 (Sec. 1). The judges and clerks of the district courts and justices of the peace may issue writs of original attachment returnable to their respective courts, upon the plaintiff, his agent, or attorney, making an affidavit in writing, stating one or more of the following grounds:

"1. That the defendant is justly indebted to the plaintiff, and the amount of the demand; and,

"2. That the defendant is not a resident

24th of December, 1894, there is no doubt of the validity of the writ. But it is contended that the paragraph was not in force, because, it is claimed, it had been repealed by an act passed by the legislative assembly of the territory, approved March 6, 1891.

This act is entitled "An Act to Amend Chapter 1, Title 4, Entitled 'Attachments and Garnishments."" Revised Statutes of Arizona, 1887. Section 1 is as follows:

"Sec. 1. Paragraph 40, being section 1, chapter 1, title 4, Revised Statutes of Arizona, 1887, is hereby amended so as to read as follows:

"The plaintiff at the time of issuing the 173 U. S.


flict with this act are hereby repealed, and
this act shall take effect and be in force from
and after its passage.
"Approved March 6, 1891."

summons, or at any time afterward, may have the property of the defendant attached, as security for the satisfaction of any judgment that may be recovered, unless the defendant gives security to pay such judgment as in this act provided in the following


The amending act is more than a revision of the provisions of the statute of 1887; it is a substitute for them. It, however, does not "First. In an action upon a contract, ex- expressly repeal paragraph 42. Does it do press or implied, for the direct payment of so by implication? Expressing the rule of money where the contract is made or is pay-repeal by implication, Mr. Justice Strong, in able in this territory, and is not secured by Henderson's Tobacco, 11 Wall. 657 [20: any mortgage or lien upon real or personal 238], said: property, or any pledge of personal property. "Second. When any suit be pending for [127]damages, and the *defendant is about to dispose of or remove his property beyond the jurisdiction of the court in which the action is pending, for the purpose of defeating the collection of the judgment.

“Third. In an action upon a contract, express or implied, against the defendant not residing in this territory or a foreign corporation doing business in this territory.

"Sec. 2. Paragraph 41, being section 2, chapter 1, title 4, Revised Statutes of Arizona, 1887, is hereby amended so as to read as follows:

"Section 2. The clerk of the court or justice of the peace must issue the writ of attachment upon receiving an affidavit by or on behalf of plaintiff, showing

"First. That the defendant is indebted to the plaintiff upon a contract, express or implied, for the direct payment of money, and that such contract was made or is payable in this territory, and that the payment of the same has not been secured as provided in section 1 of this act, and shall specify the character of the indebtedness, that the same is due to plaintiff over and above all legal set-offs or counterclaims, and that demand has been made for the payment of the amount due; or,

"Second. That the defendant is indebted to the plaintiff, stating the amount and character of the debt; that the same is due over and above all legal set-offs and counterclaims; and that the defendant is a nonresident of this territory or is a foreign corporation doing business in this territory; or,

"Third. That an action is pending between the parties, and that defendant is about to remove his property beyond the jurisdiction of the court to avoid payment of the judgment: and,

"Fourth. That the attachment is not sought for wrongful or malicious purpose, and the action is not prosecuted to hinder or delay any creditor of the defendant.

"Sec. 3. Paragraph 43, being section 4, chapter 1, title 4, Revised Statutes of Arizona, 1887, is hereby repealed.

"Sec. 4. Paragraph 47, being section 8, chapter 1, title 4, Revised Statutes of Ari[128]zona, 1887, is hereby amended by *striking out the word 'original' where it occurs in the first line of said section.

"Sec. 5. Paragraph 50, being section 11, chapter 1, title 4, Revised Statutes of Arizona, 1887, is hereby amended by striking out the word 'repleviable' where it occurs in line five of said section.

"Sec. 6. All acts and parts of acts in con

"Statutes are indeed sometimes held to be repealed by subsequent enactments, though the latter contain no repealing clauses. This is always the rule when the provisions of the latter acts are repugnant to those of the former, so far as they are repugnant. The enactment of provisions inconsistent with those previously existing manifests a clear intent to abolish the old law. In United States v. Tynen, 11 Wall. 92 [20: 154], it was said by Mr. Justice Field, that 'when there are two acts upon the same subject, the rule is to give effect to both, if possible. But if the two are repugnant in any of their provisions the latter act, without any repealing clause, operates to the extent of the repugnancy as a repeal of the first and even where two acts are not in express terms repugnant, yet, if the latter act covers the whole subject of the first, and embraces new provisions, plainly showing that it was intended as a substitute for the first act, it will operate as a repeal of that act.' For this several authorities were cited, some of which have been cited on the present argument. This is undoubtedly, a sound exposition of the law. But it must be observed that the doctrine asserts no more than that the former statute is impliedly repealed, so far as the provisions of the subsequent statute are repugnant to it, or so far as the latter statute, making new provisions, is plainly intended as a sub-[129] stitute for it. Where the powers or directions under several acts are such as may well subsist together, an implication of repeal cannot be allowed."

with paragraph 42? Certainly not, if the May paragraph 40, as amended, subsist former prescribes the time when the writ of attachment may be issued, and not the time when it may be levied. Its identical language was section 120 of the practice act of California, and was continued as 537 of the Code of Civil Procedure of said state, and was such at the time the act of 1891 of Arizona was passed. When part of the practice act, it was construed by the supreme court of California in the case of Low v. Henry, 9 Cal. 538. Mr. Justice Burnett, speaking for the court, said:

"The twenty-second section of the practice act provides that a suit shall be commenced by the filing of a complaint and the issuance of a summons; and the one hundred and twentieth section allows the plaintiff, 'at the time of issuing the summons, or at any time afterwards,' to have the property of the defendants attached. These provisions must be strictly followed, and the attachment, if issued before the summons, is a nullity. Ex parte Cohen, 6 Cal. 318. The issuance of the

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