Contagious and Infectious Diseases of Live Stock, and for Other Purposes."

Section 1 confers upon the Secretary of Agriculture the powers which had been vested in the Secretary of the Treasury by sections 4 and 5 of the Act of May 29, 1884 ("to be exercised exclusively by him") in order to enable the Secretary of Agriculture to effectually suppress and extirpate contagious pleuro-pneumonia, foot and mouth disease, and other dangerous, contagious, infectious, and communicable diseases in cattle and other live stock, and to prevent the spread of such diseases. This section authorizes and directs the Secretary from time to time to establish such rules and regulations concerning the exportation and transportation of live stock from any place where he has reason to believe such diseases may exist into other states, etc., as he may deem necessary, and provides that such regulations shall have the force of law. It further provides that when any federal inspector shall issue a certificate that any cattle or other live stock have been inspected and found free from disease, such animals may be transported in interstate commerce without further inspection or the exaction of fees of any kind, except such as may at any time be ordered or exacted by the Secretary of Agriculture; and all such animals shall at all times be under the control and supervision of the Bureau of Animal Industry of the Agricultural Department for the purposes of such inspection.

Section 2 authorizes the Secretary to make such regulations and take such measures as he may deem proper to prevent the introduction or dissemination of animal diseases from foreign countries, into the United States or from one state to another, and to seize and quarantine any hay, etc., or any hides, animal products, etc.,coming from foreign country into the United States or from one state to another whenever he

deems advisable in order to guard against or suppress contagion.

2. Act of March 3, 1905.—An Act 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.10

Section 1 authorizes and directs the Secretary to establish quarantine district and to notify carriers of and publish informa

tion as to same.

Section 2 prohibits railroad companies, etc., from receiving or transporting, persons from delivering to them, and persons from driving or transporting in private conveyance from state to state from any quarantined area, any live stock except as provided in the subsequent sections.

Section 3 requires the Secretary to make rules which shall permit and govern the inspection, disinfection, certification, treatment, handling, and method and manner of delivery and shipment of cattle or other live stock in interstate commerce from quarantined territory.

Section 4 provides that live stock may be moved from quarantined territory into another state under and in compliance with the regulations of the Secretary made under section 3 of the Act and prohibits any such movement of live stock in interstate commerce from quarantined areas "in manner or method or under conditions other than those prescribed by the Secretary."

Rule 13, referred to in the Asbell case, was as follows:

"Rule 13. From the 1st day of February to the 31st day of October inclusive of each year, no cattle shall be transported or driven or allowed to drift from the area quarantined by the Secretary of Agriculture for splenic fever into any State or Territory or District of Columbia or portion thereof outside of the said quarantined area, except as hereinafter provided. During the

(10) 10 Fed. Stat. Anno., p. 35.

months of January, November and December of each year cattle from the area quarantined by the Secretary of Agriculture for splenic fever may be shipped without restrictions, other than those imposed by state or territorial officers at point of destination."

The Asbell case is direct authority for the proposition that the test is whether the state action actually conflicts with or obstructs the affirmative exercise by Congress of the powers of Congress on the subject and the action of the federal authorities authorized thereby. The state is allowed to supplement the federal laws and regulations and impose additional restrictions and requirements, in the absence of express federal prohibition. This view is supported by the case of Savage v. Jones, to be discussed.

The Asbell case decides that notwithstanding the fact that Congress has imposed upon the Secretary of Agriculture the duty of keeping informed of his stock conditions so far as disease is concerned, and not only authorizes but requires him to establish rules and adopt measures to prevent the communication of disease, yet that Congress has not by enacting these provisions taken possession of the entire subject❘ matter so as to exclude the state; that, notwithstanding the Secretary, under the authority of the federal statutes, may have established certain quarantine districts and made rules regulating the transportation of animals, etc., therefrom (in interstate commerce), the state may decide that territory not covered by the federal quarantine shall be quarantined so far as the state is concerned. (I am, of course, assuming that any state law or regulation is not condemned by the doctrine of the Husen case as being arbitrary and palpably unnecessary.) Under the doctrine of this Asbell case, the state may decide that the Secretary of Agriculture has not made rules or adopted measures which will not protect it and may therefore make its own rules and adopt its own measures; or may reach the

conclusion that the federal quarantine is not sufficiently extensive, and establish for itself additional territory which shall be considered quarantined.

What are the limits of the state's power (still assuming that the state's action is not to be condemned as arbitrary per se)?

If a federal inspector gives a certificate as referred to in section 1 of this Act of 1903, the state cannot prevent the introduction of the live stock or require any other inspection, because the federal act expressly says that such live stock may move without any further inspection. the Asbell case, p. 258.

See

If the federal authorities under the Act of 1905 establish a quarantined area and make regulations under which live stock may move therefrom the state cannot, as to live stock from such quarantined territory, conditions, because section 4 of the said act prohibit the importation or impose other expressly says that such live stock may move from such quarantined territory under the regulations of the federal authorities and in no other manner.

Under the authorization of the Act of 1903, the Secretary may and is required to adopt such measures as he deems proper to prevent and suppress contagion. As we have seen, this does not prevent the state from regulating the subject matter, so long as the federal Secretary has not taken charge of the specific matter which the state is acting upon." But the question arises, is the secretary's power limited to affirmative regulations and measures operating on the subject matter, or can he affirmatively sanction movements under his regulations or officially declare that his rules or methods are intended to cover the subject matter and are exclusive? If the federal acts confer such power upon him and he exercises it, then the power of the state is abrogated and

(11) Reid case; Asbell case. See also Missouri Pacific R. Co. v. Larabee Mills, 221 U. S. 612.

annulled. Can he, for example, say that the quarantine he has established is sufficient to prevent danger and that live stock may move from territory without such quarantined area without restriction of any sort? There is ground for the view that he cannot thus exclude state action in view of the decision helding that Congress did. not intend to prevent state action additional to the federal measures, save in the instances where the federal acts affirmatively authorize movement under federal regulations. The Asbell opinion, however, makes a point of the fact that the regulation of the secretary "in terms recognizes instructions imposed by the state of desti

nation."

The recent decision in Savage v. Jones, 12 is interesting in connection with the subject of these notes. The question involved in this case was whether or not an Indiana Statute

violated the Commerce Clause which prohibited the sale in Indiana of feeding stuff unless there should be first filed with the State Chemist a certificate showing among other things the ingredients which the article contained and unless a label showing the analysis of the article should be affixed to the package and an inspection tax paid. The court declared that the purpose of the statute was to "prevent fraud and imposition in the sale of food for domestic animals" and that the object of the Food and Drugs Act (of June 30, 1906, 34 Stat. 768) was to prevent adulteration and misbranding. It pointed out that in the enumeration of the acts which would constitute a violation of the federal act Congress had not included the failure to disclose ingredients (save in specific instances,

it or the ingredients or substances it contains, which shall be false or misleading. (Section 8). But this does not cover the entire ground. It is one thing to make a false or misleading statement regarding the article or its ingredients, and it may be quite another to give no information as to what the ingredients are. As is well known, products may be sold, and in case of socalled proprietary articles frequently are sold, under trade names which do not reveal the ingredients of the composition and the proprietors refrain from revealing them. Moreover, in defining what shall be adulteration or misbranding for the purposes of the federal act, it is provided that mixtures or compounds known as articles of food under their own distinctive names, not taking or imitating the distinctive name of another article, which do not contain 'any added poisonous or deleterious ingredients' shall not be deemed to be adulterated or misbranded if the name be accompanied on

the same label or brand with a statement of the place of manufacture."

The court goes on to say that Congress "has thus limited the scope of its prohibitions. It has not included that at which the Indiana statute aims." It shows that

Congress has not in the statute expressly denied the power of the state to "permit imposition upon the public by making a

reasonable and non-discriminatory provision for the disclosure of ingredients, and for inspection and analysis.”

In answering (in the negative) the question whether any such denial is implied, the court remarks (p. 533):

"But the intent to supersede the exercise by the State of its police power as to matters not covered by the federal legislation is not to be inferred from the mere fact that Congress has seen fit to circumscribe its regulations and to occupy a limited field. In other words, such intent is not to be

interpreted is in actual conflict with the law of the State."

(12) 225 U. S. 501.

The court proceeds to discuss the Haber, Reid, and Asbell cases in support of its decision. It also cites Northern Pacific Ry. Co. v. Washington,13 (Hours of Service

(13) 222 . S. 370.

case), but does not undertake to reconcile it. It is interesting to compare the foregoing quotation from the Savage case with the following from the Southern Ry Co. v. Indiana (February 23, 1913):

"The test, however, is not whether the state regulation is in conflict with the details of the federal law or supplements it, but whether the State had any jurisdiction of a subject over which Congress had exerted its exclusive control."

See also the New York "Hours of Service" case; and the Quarantine case.15 JOHN K. GRAVES.

Washington, D. C.

(14) Erie R. Co. v. New York, 233 U. S. 671. (15) Chicago, Burlington & Quincy R. Co. v. Frye-Bruhn Co. (C. C. A., 8th Circuit), 184 Fed. 15, 20-22.

NEGLIGENCE-LAST CLEAR CHANCE,

AIKEN v. METCALF.

Supreme Court of Vermont. Oct. 16, 1917.

102 Atl. 330.

An instruction that although plaintiff was negligent in attempting to cross the street if defendant driver of the automobile by looking would have discovered plaintiff and been able to avoid him, plaintiff was entitled to recover was properly refused; the last clear chance doctrine not being applicable where the negligence of plaintiff is concurrent with that of defendant.

MILES, J. This is an action to recover damages for an alleged injury to the plaintiff, occasioned by the defendant's negligence in operating an automobile. The injury occurred on a street in the village of Irasburg, running northerly and southerly along the easterly side of the common, in that village. At the time of the injury, the plaintiff was crossing the street diagonally on foot in a northwesterly direction, intending to cross the common in a beaten path used for that purpose, and when struck by defendant's car was west of the center of the street, which was from 25 to 35 feet wide. Just before the accident, the plaintiff came out of a store on the east side of the street, looked north

and south, saw no team, auto, or person in the street, traveled northerly on the sidewalk or platform of the store about 50 or 60 feet, and then started to cross the street as stated above, and in doing so looked neither to the north or south for approaching teams or autos, except only so far as he could see without turning his head. Just before the accident, the defendant was on the westerly side of the common, and in coming onto the street on the easterly side of the common, he first went south to the southwesterly corner of the common, then turning easterly came to the southeasterly corner of the common, where he turned northerly onto the street in which the accident occurred, about 200 feet south of where the plaintiff attempted to cross it. As he came onto that street, there was nothing to prevent his seeing the plaintiff while attempting to cross the street, if he had looked. He admitted that he did not blow the horn or give any signal, in making the sharp turns at the southwest and southeast corners of the common, and did not see the plaintiff until just before the collision, and not in season to avoid it. The plaintiff's testimony tended to show that he did not see the automobile until about the time he was struck by it, and not in time to avoid it. The case was tried by jury, and verdict and judgment were rendered for the defendant. Only two exceptions were reserved by the plaintiff, the first of which was a request to charge as follows:

"If you find the plaintiff was negligent in attempting to cross the street at the time he did, and you find the defendant, had he been look ing, would have discovered the plaintiff when he had reached a place of danger and had been able to avoid him, then the plaintiff would be entitled to recover."

-which the court refused. The plaintiff based this exception upon the "last clear chance" rule and upon no other ground. There is more or less confusion, if not conflict, in the treatment of this subject by the courts in different jurisdictions; but this court is committed to the doctrine that the last clear chance rule cannot be invoked where the negligence of the plaintiff is concurrent with that of the defendant. The law on that subject, as recognized in this state, is well stated in French v. Grand Trunk Ry. Co., 76 Vt. 441, 58 Atl. 722, that when a traveler has reached a point where he cannot extricate himself and vigilance on his part will not avert the injury, his negligence in reaching that position becomes the condition and not the proximate cause of the injury and will not preclude a recovery, but that it is equally true that if a traveler, when he reaches the point

of collision, is in a situation to extricate himself and avoid injury, his negligence at that point will prevent a recovery, notwithstanding the fact that the trainmen could have stopped the train in season to have avoided injuring him. The rule that, if the plaintiff's negligence proximately contributes to his own injury, he cannot recover is so well settled in this state that it needs no citation of authorities upon that point, and therefore the last clear chance rule can never apply where the plaintiiff's negligence is concurrent with and of the same degree as that of the defendant. A charge as requested by the plaintiff would justify the jury in finding for him, though his negligence may have proximately contributed to his own injury. That the plaintiff cannot recover when his negligence is concurrent with and of the same degree as that of the defendant is also shown in Trow v. Vt. Central R. R. Co., 24 Vt. 487, 58 Am. Dec. 191, in which the authorities upon that subject are collected and commented upon. The only case in this state in conflict with the rule laid down in French v. Grand Trunk Ry. Co., supra, is Willey v. B. & M. R. R., 72 Vt. 120, 47 Atl. 398. In that case Trow v. Central Vt. R. R. Co., supra, is cited in support of the conclusions reached in the Willey Case; but, as we have seen, the Trow Case does not support the Willey Case. In the Willey Case the holding would permit a recovery when the negligence of the plaintiff was concurrent with that of the defendant. That case made the negligence of the defendant the controlling factor in the consideration of his liability, regardless of the plaintiff's negligence. In the French Case the court comments upon the Willey Case and, impliedly at least, overrules it. The Willey Case has never been relied upon by this court since it was promulgated as an authority for the law stated in the opinion. French v. Grand Trunk R. R. Co., supra; Flint's Adm'r v. Central Vt. Ry. Co., 82 Vt. 269, 73 Atl. 590. The Willey Case does not state the law as this court understands it; and, as it is sometimes referred to in briefs of attorneys, we take this occasion to expressly overrule it. There was no error in the court's refusal to charge as requested. The other exception of the plaintiff was as follows:

"The plaintiff excepts as to the charge of the court which eliminates the sounding of the horn as being a matter of negligence, because the plaintiff claims that the pathway across a highway and common was an intersection of the highway under the statute."

The plaintiff argues that this last exception is to the court's failure to charge respecting the defendant's neglect to sound the horn or

give any other signal before making the turn at the southeast corner of the common. The defendant argues that that question is not raised by the exception taken, and that the only exception saved by the plaintiff with respect to giving a signal is to the court's failure to charge that the path across the highway and common was an intersection of highways, and that it was the duty of the defendant to sound the horn on approaching that crossing. We think the exception taken was not to 'the court's failure to charge that it was the duty of the defendant to sound the horn on approaching the southeast corner of the common, but was to the court's failure to charge that it was the defendant's duty to sound the horn on approaching the pathway crossing. The reason stated as the ground of the exception shows that the exception related to the crossing and nothing else, and the court was justified in so understanding it.

NOTE.-Last Clear Chance Doctrine Where Duty to Look Would Have Avoided Injury. -The instant case declares that: "The rule, that, if the plaintiff's negligence proximately contributes to his own injury, he cannot recover is so well settled in this state that it needs no citation of authorities upon that point, and, therefore, the last clear chance rule can never apply where the plaintiff's negligence is concurrent with and of the same degree as that of defendant." The facts in the instant case show that defendant "did not see plaintiff until just before the collision and not in season to avoid it." And the requested, but refused, instruction, injected the thought that had defendant "been looking," he would have discovered the plaintiff in time to have avoided the collision. But the court ruled, practically, that the duty to look was not equivalent to actual discovery of plaintiff being in danger.

In Ill. Cent. R. Co. v. Evans, 170 Ky. 536, 186 S. W. 173, Kentucky Court of Appeals, said: "It is a familiar rule and often applied in the law of negligence, that, however much the negligence of the injured party may have contributed to his injuries, this will not excuse the person injuring him, if this person, after discovering his peril, could by the exercise of ordinary care could have avoided the injury." There seems so far no essential difference between the statements by these courts. But the Kentucky court went fur