In an earlier decision than this Chief Justice Marshall lays down some principles which have a very important bearing upon this question. He said:

The government which has a right to do an act, and has imposed upon it the duty of performing that act, must, according to the dictates of reason, be allowed to select the means; and those who contend that it may not select any appropriate means, that one particular mode of effecting the object is excepted, take upon themselves the burden of establishing that exception. (17 U. S., 409 )

Take, for example, the power "to establish post-offices and post-roads." This power is executed by the single act of making the establishment. But from this has been inferred the power and duty of carrying the mail along the post-road from one post-office to another. And from this implied power has again been inferred the right to punish those who steal letters from the post-office or rob the mail. It may be said, with some plausibility, that the right to carry the mail and to punish those who rob it is not indispensably necessary to the establishment of a post-office and post-road. This right is indeed essential to the beneficial exercise of the power, but not indispensably necessary to its existence. So of the punishment of the crimes of stealing or falsifying a record or process of a court of the United States, or of perjury in such court. To punish these offenses is certainly conducive to the due administration of justice. But courts may exist and may decide the causes brought before them, though such crimes escape punishment (17 U.S., 417).

We admit, as all must admit, that the powers of the Government are limited, and that its limits are not to be transcended. But we think the sound construction of the Constitution must allow to the National Legislature that discretion with respect to the means by which the powers it confers are to be carried into execution which will enable that body to perform the high duties assigned to it in the manner most beneficial to the people. Let the end be legitimate; let it be within the scope of the Constitution; and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional (17 U.S., 421).

This great principle is, that the Constitution and the laws made in pursuance thereof are supreme; that they control the constitution and laws of the respective States, and cannot be controlled by them. From this, which may be almost termed an axiom, other propositions are deduced as corollaries on the truth or error of which, and on their application to this case, the cause has been supposed to depend. These are, first, that a power to create implies a power to preserve; second, that a power to destroy, if willed by a different hand, is hostile to, and incompatible with, these powers to create and preserve; third, that where this repugnancy exists, that authority which is supreme must control, not yield to that over which it is supreme. (17 U. S., 426.)

The decisions which have been quoted seem to leave no doubt that the authority of Congress extends into the interior of a State for the purpose of carrying out any measures necessary for the regulation of commerce, but it may be asked, Does this include all portions of a State, or only such as are on through lines of communication? Pomeroy, in his well-known work on the Constitution, says:

Commerce includes means, instruments, and places by and in which intercourse and traffic are carried on; and, further still, comprehends the act of carrying them on at these places and by and with these means.

Lakes, rivers, canals, roads, turnpikes, and railways are channels for intercourse and traffic, and commerce carried by these if foreign or inter-State is as much a subject of regulation by Congress as that transacted over the highway of nations (p. 244).

If this definition of commerce is correct, then there are few places in the country where the power of Congress would not reach for its regulation, since in these days the most obscure lanes in the interior of our States are traversed by animals on their way from one State to another. It appears, however, from the following decision of Justice Story that the power of Congress extends beyond lines of communication, and takes in such subjects, at a distance from them, as interferes with, obstructs, or prevents commerce. He says:

But we are of opinion that under the clause of the Constitution giving power to Congress "to regulate commerce with foreign nations and among the several States,"

Congress possessed the power to punish offenses of the sort which are enumerated in the ninth section of the act of 1825, now under consideration. The power to regulate commerce includes the power to regulate navigation, as connected with the commerce with foreign nations, and among the States. It was so held and decided by this court. after the most deliberate consideration, in the case of Gibbons v. Ogden (9 Wheat., 189-198). It does not stop at the mere boundary line of a State; nor is it confined to acts done on the water, or in the necessary course of the navigation thereof. It extends to such acts done on land which interfere with, obstruct, or prevent the due exercise of the power to regulate commerce and navigation with foreign nations, and among the States. Any offense which thus interferes with, obstructs, or prevents such commerce and navigation, though done on land, may be punished by Congress, under its general authority to make all laws necessary and proper to execute their delegated constitutional powers. No one can doubt that the various offenses enumerated in the ninth section of the act are all of a nature which tend essentially to obstruct, prevent, or destroy the due operations of commerce and navigation with foreign nations and among the several States. Congress has, in a great variety of cases, acted upon this interpretation of the Constitution from the earliest period after the Constitution, as will be abundantly seen by the punishment of certain offenses on land, connected with piracies and felonies on the high seas, in the act of 1790 (ch. 36, sec. 10 and sec. 11), and in the acts for regulation of commerce and navigation, and for the collection of the revenue, passed from time to time; in which many of the penalties, forfeitures, and offenses provided for are such as are, or may be, done on land; and yet which arise from the power to regulate commerce and navigation, and to levy and collect duties. The ship registry act of 1792 (ch. 45), the act of 1798 (ch. 52), for the enrollment and licensing of vessels in the coasting trade and fisheries; the act of 1790 (ch. 102), for the regulation and government of seamen in the merchant service; and the revenue collection act, from the act of 1789 (ch. 5), to that of 1799 (ch. 128), afford many pointed illustrations. We do not hesitate, therefore, to say that in our judgment the present section is perfectly within the constitutional authority of Congress to enact, although the offense provided for may have been committed on land and above high water mark.-(U. S. v. Coombs, 37 U. S., p. 78.)

Applying this to our case, it would seem that wherever pleuro-pneumonia exists, and by such existence constitutes an interference with, obstruction or danger to inter-State or foreign commerce, there it can be reached by the power of the nation and exterminated.

STATE POLICE POWERS.

It has been suggested that such action on the part of the Federal Government would be an infringement upon the reserved police powers of the several States-powers which have been recognized in the decisions of the Supreme Court since the formation of our Government. That the States possess such police powers for the protection of health and property within their territory is not contested; but here we have a case where a subject may be regulated for national purposes and under the authority for the regulation of commerce, or it may be reg ulated for local purposes under the police powers of the States, providing such regulation can be effected without placing restrictions on inter-State or foreign commerce. As a matter of fact it has not been regulated satisfactorily or effectually by the individual States for two reasons; first, owing to the difficulty of controlling such a disease without restricting inter-State commerce, and secondly, because the losses. in the affected States do not so greatly exceed the cost of stamping out the plague and the inconvenience that would result from this work, as to make the measure a very desirable one from a local point of view. All of the States infected with pleuro-pneumonia now have certain repressive measures in force for holding such maladies in check and preventing disastrous losses from them. As a rule the country districts are preserved from excessive losses, but the large dairies about the cities lose heavily and keep up the infection year after year. But as it operates upon each of these substantially the same, its effects are taken into account as increasing the cost of production, and as the price

of the article produced (milk) is regulated locally by the demand and supply, there are not the local reasons for exterminating such a disease that one would at first thought suppose. To exterminate the disease completely in Maryland, in New Jersey, or in New York would require what for a single State would be a large expenditure of money, and would also necessitate local quarantine regulations that would not be popular in the districts where enforced. It seems very plain, therefore, that the reason why pleuro-pneumonia has not been extirpated by the individual States, under the reserved police powers of the States, is that such States have not considered that their local inerests would warrant such a measure.

Looked at from a national point of view, however, it is very desirable to have this plague exterminated at once. Not only is our enormous investment of $1,200,000,000 in cattle menaced, but we have now on our national commerce, foreign and domestic, restrictions which cost us every year several times as much as would be required to exterminate the disease once and forever.

The question at issue may, consequently, be stated in this form: Given a subject to be regulated which may be reached under the police powers of the States, but which is not effectually regulated under that power, and which may at the same time be reached under the national authority to regulate commerce, should the fact that it can be reached under the State police power prevent its regulation by Congress, no matter how great the interest at stake?

In the decision of Chief Justice Marshall, already quoted (Gibbons v. Ogden, 22 U.S., 205-206), it was said that although the acts of Congress of 1796 and 1799 directed the officers of the General Government to conform to and assist in the execution of the quarantine and health laws of a State, the opinion is unequivocally manifested that Congress may control the State laws, so far as it may be necessary to control them for the regulation of commerce. In the same decision he goes on to say:

In argument, however, it has been contended that if a law, passed by a State in the exercise of its acknowledged sovereignty, comes into conflict with a law passed by Congress in pursuance of the Constitution, they affect the subject, and each other, like equal opposing powers.

But the framers of our Constitution foresaw this state of things, and provided for it by declaring the supremacy not only of itself but of the laws made in pursuance of it. The nullity of any act, inconsistent with the Constitution, is produced by the declaration that the Constitution is the supreme law.

In Cooley's Constitutional Limitations it is stated that

It is not doubted that Congress has the power to go beyond the general regulations of commerce which it is accustomed to establish, and descend to the most minute directions, if it shall be deemed advisable, and that to whatever extent ground shall be covered by those directions, the exercise of State power is excluded. Congress may establish police regulations, as well as the States, confining their operation to the subjects over which it is given control by the Constitution (p. 731).

These points seems to be so well settled, and have been reaffirmed so many times, that it is not deemed necessary to go into the subject at greater length in this report.

APPROPRIATION OF PROPERTY UNDER THE RIGHT OF EMINENT DOMAIN.

It being conceded by all, that to stamp out pleuro-pneumonia and similar diseases, a necessary measure is to take possession of affected animals and slaughter them, the question has been raised as to whether the Federal Government has the authority to enforce such a regulation

within the territorial limits of the States. As bearing directly upon this point the following language is quoted from the decision of the Supreme Court in the case of Kohl et al. v. United States (91 U. S., 367379):

It has not been seriously contended during the argument, that the United States Government is without power to appropriate lands or other property within the States for its own uses, and to enable it to perform its proper functions; such an authority is essential to its independent existence and perpetuity. These cannot be preserved if the obstinacy of a private person, or if any other authority, can prevent the acquisition of the means or instruments by which alone governmental functions can be performed. The powers vested by the Constitution in the General Government demand for their exercise the acquisition of land in all the States. If the right to acquire property for such uses may be inade a barren right by the unwillingness of property-holders to sell, or by the action of a State prohibiting a sale to the Federal Government, the constitutional grants of power may be rendered nugatory, and the Government is dependent for its practical existence upon the will of a State or even upon that of a private citizen. This cannot be. No one doubts the existence in the State government of the right of eminent domain-a right distinct from and paramount to the right of ultimate ownership. It grows out of the necessities of their being, not out of the tenure by which lands are held. It may be exercised, though the lands are not held by grant from the Government, either mediately or immediately, and independent of the consideration whether they would escheat to the Government in case of failure of heirs. The right is the offspring of political necessity; and it is inseparable from sovereignty, unless denied to it by its fundamental law. But it is no more necessary for the exercise of the powers of a State government than it is for the conceded powers of the Federal Government. That Government is as sovereign within its sphere as the States are within theirs. True, its sphere is limited. Certain subjects only are committed to it; but its power over these subjects is as full and complete as is the power of the States over the subjects to which their sovereignty extends. The power is not changed by its transfer to another holder.

But if the right of eminent domain exists in the Federal Government, it is a right which may be exercised within the States, so far as is necessary to the enjoyment of the powers conferred upon it by the Constitution. In Ableman v. Booth (21 How., 523), Chief Justice Taney described in plain language the complex nature of our Government, and the existence of two distinct and separate sovereignties within the same territorial space, each of them restricted in its powers, and each, within its sphere of action, prescribed by the Constitution of the United States, independent of the other. Neither is under the necessity of applying to the other for permission to exercise its lawful powers. Within its own sphere it may employ all the agencies for exerting them which are appropriate or necessary, and which are not forbidden by the law of its being. When the power to establish post-offices and to create courts within the State was conferred upon the Federal Government, included in it was authority to obtain sites for such offices and for court-houses, and to obtain them by such means as were known and appropriate. The right of eminent demain was one of those means well-known when the Constitution was adopted, and employed to obtain lands for public uses. Its existence, therefore, in the grantee of that power ought not to be questioned. The Constitution itself contains an implied recognition of it beyond what may justly be implied from the express grants. The fifth amendment contains a provision that private property shall not be taken for public use without just compensation. What is that but an implied assertion that, on making just compensation, it may be taken? That this right of eminent domain applies to all property, real or personal, where there is a necessity for its appropriation for public use, appears from the language used in 6 Howard, 532, 537, 546. In this case Justice McLean said: "But no one doubts the power of the State to take a banking house for public use, or any other real or personal property owned by the bank."

THE QUESTION OF POLICY.

As to the power of Congress to make necessary laws for the extirpation of dangerous contagious diseases of animals, there would seem to be little doubt from the above-mentioned decisions. It is certain that the General Government can enforce measures for this purpose much more effectually that can be done by the States acting separately. The States do not act in concert; many of them have no laws, and their

powers are restricted by that clause of the United States Constitution giving to Congress the exclusive power to regulate commerce among the States.

The importance and magnitude of the stock interests were so clearly set forth in the address which you delivered at Chicago, in November, 1885, that I take the liberty of making the following extracts:

The history of the development and of the present wonderful magnitude of the cattle industry creates increased interest and fresh astonishment the more it is studied and the more we trace its relations to the comfort and prosperity of our people.

When the first accurate statistics of the cattle in this country were collected in 1850 it was found that we had in round numbers about 17,778,000, and, in 1860, 25,620,000; in 1870 this number had been reduced to 23,820,000; in 1880 there were 35,925,000, while in 1885 there are not far from 45,000,000. This last number is so great that it is difficult for the human mind to grasp its significance or to appreciate the vast accumulation of cattle which it represents, which have been gathered together and reared by the industry and enterprise of our people.

If a solid column should be formed 12 animals deep, one end resting at New York City, its center encircling San Francisco, and its other arm reaching back to Boston, such a column would contain about the number which now forms the basis, the capital stock, so to speak, of the cattle industry of the United States. The value of these animals is not less than $1,200,000,000.

While the cattle industry has reached this remarkable development, and those engaged in it have accumulated this fabulous aggregate of wealth, you, who represent the industry here to-day, find yourselves confronted by problems which have increased in seriousness even more rapidly than your herds have multiplied upon their luxuriant pastures. Insidious cattle plagues exist in the country, and eternal vigilance is required to keep them from sweeping through your herds as a fire sweeps the dry grass from the prairie. To protect from these diseases, State regulations and State restrictions upon the movement of cattle have been formulated, which during the past year have been the cause of the most serious disturbance and loss to those engaged in this industry in a considerable number of States. Those who are raising cattle upon the arid plains of the West are becoming uneasy in regard to the security of their ranges. Our people are impatient under the restrictions upon our foreign trade. And so, in whatever direction we turn, there are important questions to be met which will doubtless tax your talent, energy, and perseverance to the utmost, and require wise and united action to secure a satisfactory solution of them.

But it is not the cattle interest alone that has to meet these questions. When we attempt to consider the importance of the industries affected by them, we find that the various branches of the animal industry are so linked together that all are more or less affected. Contagious diseases are not confined to cattle alone. The swine industry is at this time perhaps the very greatest sufferer from them, and from all parts of the country comes up the cry for relief. Nor are these restrictions upon our foreign trade confined to cattle alone. Our sheep and swine are also slaughtered on the English docks with an even more destructive effect upon the traffic. The prohibition of our pork is only too well known; and the interest in a settlement of the range questions is shared by the breeders of cattle, horses, and sheep. The questions which a national convention of cattlemen must consider are, consequently, broad questions, which involve great principles, and are of national importance from various standpoints. And with you are directly interested the breeders and owners of the 13,000,000 of horses and mules, of the 50,000,000 of sheep, and of the 45,000,000 of swine. This great animal industry may be said, therefore, to be united in interest, aud by embracing the horses, and cattle, and sheep, and swine, we have a capital represented of $2,500,000,000.

In the thirteen Southern States, beginning with Virginia and ending with Texas, and including Kentucky, Tennessee, and Arkansas, all the assessed real estate and personal property, as returned in the census of 1880, did not equal the present estimated value of our animal industry. And all the New England States combined, with the single exception of New Hampshire, did not have enough assessed valuation in 1880 to equal the present value of our domestic animals.

You all know what an enormous amount of cotton is produced in the Southern States; and those who have been in the South when this crop was being marketed, and have seen the bales piled up on every wagon that was entering the towns, who have seen the warehouses overflowing, the railway stations and platforms overwhelmed, and the trains loaded down with this staple, can realize more plainly than I can picture the magnitude of the cotton crop. Still, in 1880, our railroads carried two and one-half times as many tons of live stock as of cotton. Why, gentlemen, the product of our animal industry in 1884, including meat, and labor, and dairy products, and