Opinion of the Court-Coleman, C. J.

In the written brief, as well as in the oral argument, counsel bases petitioner's right to a discharge upon three grounds: (1) That the act in question is contrary to and in violation of that portion of section 8, article 1, of the federal constitution, which provides that Congress shall have power to regulate commerce with foreign nations and among the several states; (2) that the act is repugnant to the provisions of sections 1 and 2 of article 4 of the federal constitution, which provides that the citizens of each state shall be entitled to all the privileges and immunities of citizens of the several states; and (3) that the arrest is unlawful for the reason that the provisions of the act under which petitioner was arrested and detained are arbitrary, unreasonable, and discriminatory.

3. Taking up the first ground urged by counsel for petitioner, we need only to say that, while Congress has power to regulate commerce among the several states, it has not covered the whole subject of the transportation of live stock from one state to another, and has left it to the several states to legislate upon this very question; and hence our legislature had authority to enact appropriate legislation upon this branch of the law, subject to the limitations stated in Asbell v. Kansas, 209 U. S. 251258, 28 Sup. Ct. 485, 52 L. Ed. 778; 14 Ann. Cas. 1101, which do not affect this matter.

4. As to the second point, it does not appear that the act is more favorable to citizens of this state than to those of our sister states. We construe the act to refer to sheep which are brought into this state, whether they belong to citizens of this state or of a sister state; and, as we construe the decisions of the Supreme Court of the United States, such an act does not violate either the letter or the spirit of the federal constitution. Reid v. Colorado, 187 U. S. 137, 23 Sup. Ct. 92, 47 L. Ed. 108.

5. We are now brought to a consideration of the last point urged by counsel, to the effect that the statute in question is unreasonable, arbitrary, and discriminatory. It appears that scabies is one of the oldest known,

Opinion of the Court-Coleman, C. J.

most contagious, and most injurious diseases affecting sheep, and that it spreads very rapidly after being introduced into a flock, but that it is communicated through the medium of infected ranges, trails, pastures, corrals, and watering places, and that there are frequent cases of a stray from an infected flock being found in another flock twenty miles distant; that, when allowed to spread, the disease causes great financial loss; that under certain conditions the mites will lie dormant for several months; that when a sheep becomes infected the female mite will lay some fifteen eggs, which hatch after a three or four days' period, and the young mites grow to maturity in seven to ten days and in three or four more days begin to deposit eggs; that in Nevada the usual time before the disease, under painstaking inspection, can be detected, after exposure, is between 90 and 180 days, and that the sheep in question upon coming into Nevada were unaccompanied by a health certificate not more than ten days old, stating that the said sheep were free from disease or exposure thereto, and had not been in any district infected by scabies within six months prior to their being driven into this state.

Our attention is invited to the cases of State v. Duckworth, 5 Idaho, 642, 51 Pac. 456, 39 L. R. A. 365, 95 Am. St. Rep. 199, Hannibal & St. J. Ry. Co. v. Husen, 95 U. S. 465, 24 L. Ed. 527, and Adams & Bryson v. Lytle (C. C.) 154 Fed. 876, as authorities in support of petitioner's contention. There is such a wide difference between the Nevada statute, and rules made in pursuance thereof, and the Idaho statute construed in the Duckworth case, that the decision in that case is not an authority in point. Nor is the exclusion of the sheep, under the act and rules in question, absolute, as in the Husen case, and it is this feature which differentiates that case from the instant one. Nor do we think that Adams & Bryson v. Lytle, supra, an authority supporting petitioner's contention. The statute under consideration in that case is similar to ours, and the learned judge who rendered the opinion expressly says:

Opinion of the Court-Coleman, C. J.

"I am not disposed to question the reasonableness of any of the provisions" of the act considered.

From that opinion it also appears that the governor of Oregon issued his proclamation, declaring the States of Washington, Nevada, and California presumably infected with scabies, and prohibited the importation of sheep from any of said states. The court, referring to the proclamation of the governor of Oregon, said:

“It is quite true that, because of the proclamation of the governor, sheep coming from the State of Washington are presumably infected."

6. In a proceeding of this kind, the question as to the correctness of the statement of facts contained in the governor's proclamation cannot be inquired into. At any rate, there is nothing before us tending to show that the proclamation of the governor was not well founded, and we must presume that it was. The case of Adams & Bryson v. Lytle was an action in equity to restrain certain officers from interfering with the driving of certain sheep from Washington into Oregon, and in that case certain testimony was considered to enable the court to determine as a matter of fact whether the section of Washington from which the sheep in question were being driven was territory infected with scabies, and the court expressly says:

"Now, the testimony adduced by affidavit and orally shows beyond cavil that the sheep which the complainants propose bringing into the state are entirely free from scabies or infectious diseases of any kind; that there has been no disease or contagion within the counties or localities from which the sheep are being driven for at least nine years; and that the sheep are not to pass through any infected territory before reaching the state-line. * Here, therefore, is a case where sheep, perfectly healthy, being driven from localities not infected in any way and through uninfected territory, are about to enter the state."

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A distinguishing feature between that case and the one at bar is that in that case the sheep were not only

Opinion of the Court-Coleman, C. J.

perfectly healthy, but were being driven from localities not infected in any way, while in the case before us the sheep came from a locality admittedly infected.

But we see no occasion for a long-drawn-out discussion of this case, for to our mind it is controlled by that of Asbell v. Kansas, 209 U. S. 251–258, 28 Sup. Ct. 485, 52 L. Ed. 778, 14 Ann. Cas. 1101, which, apparently, was overlooked by counsel for petitioner. It appears from the opinion in that case that the statute of Kansas makes it a misdemeanor, punishable by fine and imprisonment, for any person to transport into the state cattle from any point south of the south line of the state, except for immediate slaughter, without first having caused them to be inspected and passed as healthy by certain officials. Asbell was convicted of violating the statute mentioned, and from a judgment of the Supreme Court of Kansas affirming the judgment of conviction he took a writ of error to the Supreme Court of the United States, and that court upheld the right of a sovereign state to adopt in good faith such reasonable regulations, as a police measure, as might be necessary to protect the health of its own animals. In that case, in a unanimous opinion, the court says:

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"Cattle, while in the course of transportation from one state to another * may be the conveyance by which disease is brought within the state to which they are destined, and in that respect subject to the power of the state exercised in good faith to protect the health of its own animals and its own people. In the execution of that power the state may enact laws for the inspection of animals coming from other states with the purpose of excluding those which are diseased and admitting those which are healthy. Reid v. Colorado, 187 U. S. 137, 47 L. Ed. 108, 23 Sup. Ct. 92."

That some regulations to protect the sheep of this state from sheep infected with scabies or coming from an infected section in another state are amply justified is clear from a consideration of the character of the

Opinion of the Court-Coleman, C. J.

disease, the manner and ease of its communication, the difficulty of detecting it, and the further fact that it may not be detected for 180 days after a flock has been exposed. It is clear from a reading of the statute, and the rules adopted in pursuance thereof, that they were adopted purely as a police measure for the protection of the sheep of this state. This is manifest from the fact that section 9a of the rules, above quoted, expressly provides that sheep from another state, accompanied by a health certificate, may be admitted without dipping.

7. Every presumption is in favor of the validity of the statute, and were there a doubt upon the question it would be our duty to resolve that doubt in its favor; but we are of the opinion that the reasonableness of the statute and the rules, and the good faith of the legislature and of the board in adopting the rules, are so apparent that there can be no question as to their validity.

We are of the opinion that these proceedings should be dismissed, and that the petitioner should be remanded to the custody of the sheriff; and it is so ordered.