203 U.S.

Argument for Appellee.

Rep. 425; United States v. E. C. Knight Co., 156 U. S. 13; Cornell v. Coyne, 192 U. S. 418; In re Greene, 52 Fed. Rep. 113; see People v. Bishop, 94 N. Y. Supp. 74, sustaining New York veal law providing for tagging calves killed, with age and name of raiser and shipper.

The act is a legitimate exercise of the police power and is not dependent in any manner upon the exception contained in the article of the Constitution which provides that States may levy imposts for the execution of their inspection laws. The inspection fee is not levied upon interstate commerce.

Even if the hides in question should be considered interstate commerce at the time the law acts upon them, still the act is not in collision with the commerce clause of the Constitution and is valid, being a legitimate inspection law. See case below, 78 Pac. Rep. 75, and concurring separate opinion of Justice Pope, 79 Pac. Rep. 295; City of New York v. Miln, 11 Pet. 102; Pabst Brewing Co. v. Crenshaw, 198 U. S. 17.

The act answers all essential requirements of a valid inspection law, in that necessity existed for its enactment; it provides a reasonable fee; it intended and is well calculated to eradicate or at least lessen the evil of cattle stealing; it does no violence to the rights secured to the citizens of any other State or Territory; it operates upon property and not upon persons; it can be executed without taking testimony or evidence.

The legislature and courts of New Mexico must be presumed to be perfectly familiar with conditions there existing, and to understand the necessities in regard to legislation for protecting the property of its citizens. Whether such a law as the one now in question is necessary should be referred to the legislative department of the Territory. And the legislature having enacted it, this court will hesitate to deny its. validity. Clark v. Nash, 198 U. S. 361.

The scope of inspection laws can no more be defined or limited than can the scope of police power of which it is a branch. Barton v. Railroad Co., 32 Fed. Rep. 722; Voight v.

Wright, 141 U. S. 62; Slaughter House Cases, 16 Wall. 36, 62. As to whether inspection laws can be resorted to for detection of crime see Railroad Co. v. Husen, 95 U. S. 465, 471.

The constitutional prohibition as to exports refers to foreign commerce and not to interstate commerce. Woodruff v. Parham, 8 Wall. 123, and the States may make inspection laws operating on interstate commerce. Patapsco Guano Co. v. North Carolina, 171 U. S. 345; Neilson v. Garza, 2 Woods, 287.

The fees charged in this case are reasonable, but that is a matter for the legislature to determine. Cases cited, supra. Chester v. Telegraph Co., 154 Pa. St. 464; West. Un. Tel. Co. v. New Hope, 187 U. S. 425. See Phanix Meat Co. v. Moss, 64 Pac. Rep. 442, as to Arizona hide inspection law.

The law does not discriminate between different classes of citizens. It acts upon hides, not persons, and upon hides whosesoever they may be. Whenever a law operates alike upon all persons and property similarly situated, equal protection is not denied. All that is required is that all persons subject to a law shall be treated alike. Mo. Pac. R. R. v. Mackey, 127 U. S. 205; Duncan v. Missouri, 152 U. S. 377; Giozza v. Tiernan, 148 U. S. 657.

In Minnesota v. Barber, 136 U. S. 313; Brimmer v. Rebman, 138 U. S. 78; Voight v. Wright, 141 U. S. 62, state laws were under consideration which discriminated against products of other States, and were for that reason condemned. In this case there is no such discrimination.

MR. JUSTICE DAY delivered the opinion of the court.

This is an appeal from the judgment of the Supreme Court of New Mexico, affirming the judgment of the District Court of Santa Fé County, sustaining a motion to quash an alternative writ of mandamus issued on the relation of E. J. McLean & Company against the Denver and Rio Grande Railroad Company.

From the allegations of the writ it appears that the relators, the appellants here, had delivered to the railroad company at Santa Fé, New Mexico, a bale of hides consigned to Denver, Colorado, a point on the line of the defendant's railroad. The railroad company refused to receive and ship the hides for the reason that they did not bear the evidence of inspection required by the act of the legislature of New Mexico, approved March 19, 1901, which act, to be more fully noticed hereafter, made it an offense for any railroad company to receive hides for shipment beyond the limits of the Territory which had not been inspected within the requirements of the law.

An objection is made to the jurisdiction of this court upon the ground that the case is not appealable under the act of Congress of March 3, 1885. 23 Stat. 443.

Section 1 of the act provides, in substance, that no appeal or writ of error shall be allowed from any judgment or decree of the Supreme Court of a Territory unless the matter in dispute, exclusive of costs, exceeds the sum of $5,000. Section 2 of the act makes exception to the application of section 1 as to the sum in dispute, in cases wherein is involved the validity of a treaty or statute of, or authority exercised under, the United States, and in all such cases an appeal or writ of error will lie without regard to the sum or value in dispute.

Confessedly, $5,000 is not involved; and in order to be appealable to this court the case must involve the validity of an authority exercised under the United States, and also be a controversy in which some sum or value is involved. This court, in the case of Lynch v. United States, 137 U. S. 280, 285, laid down the test of the right to appeal under the statute in the following terms:

"The validity of a statute or the validity of an authority is drawn in question when the existence, or constitutionality, or legality of such statute or authority is denied, and the denial forms the subject of direct inquiry."

The right to legislate in the Territories is conferred, under

constitutional authority, by the Congress of the United States and the passage of a territorial law is the exertion of an authority exercised under the United States. While this act was passed in pursuance of the authority given by the United States to the territorial legislature, it is contended by the relators below, appellants here, that it violates the Constitution of the United States, and is therefore invalid, although it is an attempted exercise of power conferred by Congress upon the Territory. The objection of the relator to the law raises a controversy as to the right of the legislature to pass it under the broad power of legislation conferred by Congress upon the Territory. In other words, the validity of an authority exercised under the United States in the passage and enforcement of this law is directly challenged, and the case does involve the validity of an authority exercised under the power derived from the United States. It is not a case merely involving the construction of a legislative act of the Territory, as was the fact in Snow v. United States, 118 U. S. 346. The power to pass the act at all, in view of the requirements of the Constitution of the United States, is the subjectmatter in controversy, and brings the case in this aspect within the second section of the act.

Is there any sum or value in dispute in this case? While the act does not prescribe the amount, some sum or value must be in dispute. Albright v. Territory of New Mexico, 200 U. S. 9. The matter in dispute is the right to have the goods which were tendered for shipment transported to their destination. As a common carrier, the railroad was bound to receive and transport the goods. Its refusal so to do was based upon the statute in question because of the non-inspection of the goods tendered. The relators claimed the right to have their goods transported because the statute was null and void, being an unconstitutional enactment. The controversy, therefore, relates to the right of the appellants to have their goods transported by the railroad company to the place of destination. We think this was a valuable right, measurable

in money. At common law, a cause of action arose from the refusal of a common carrier to transport goods duly tendered for carriage. Ordinarily, the measure of damages in such case is the difference between the value of the goods at the point of tender and their value at their proposed destination, less the cost of carriage. We are of the opinion that this controversy involves a money value within the meaning of the statute, and the motion to dismiss the appeal will be overruled.

Passing to the merits of the controversy, Congress has conferred legislative power upon the Territory to an extent not inconsistent with the Constitution and laws of the United States. Rev. Stat. § 1851. It is contended that the act under consideration contravenes that part of Article one, Section ten, of the Constitution of the United States, which reads: "No State shall, without the consent of Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws." And also that part of the eighth section of Article one of the Constitution of the United States, which gives to Congress the power to regulate commerce with foreign nations, and among the States and with the Indian tribes.

As to the objection predicated on Section ten of Article one, that section can have no application to the present case, as that provision directly applies only to articles imported or exported to foreign countries. Patapsco Guano Co. v. North Carolina Board of Agriculture, 171 U. S. 345, 350, and cases cited. Moreover, that paragraph of the Constitution expressly reserves the right of the States to pass inspection laws, and if this law is of that character it does not run counter to this requirement of the Constitution.

The question principally argued is as to the effect of this law upon interstate commerce, and it is urged that it is in violation of the Constitution, because it undertakes to regulate interstate commerce and lays upon it a tax not within the power of the local legislature to exact. It has been too frequently decided by this court to require the restatement

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