Compagnie Francaise De Navigation A Vapeur v. State Board Of Health Louisiana/Dissent Brown

Mr. Justice Brown, with whom was Mr. Justice Harlan, dissenting:

The power of the several states, in the absence of legislation by Congress on the subject, to establish quarantine regulations, to prohibit the introduction into the state of persons infected with disease, or recently exposed to contagion, and to impose a reasonable charge upon vessels subjected to examination at quarantine stations, is so well settled by repeated decisions of this court as to be no longer open to doubt. This case, however, does not involve that question, but the broader one, whether, in the assumed exercise of this power, the legislature may declare certain portions of the state to be in quarantine, and prohibit the entry therein of all persons whatsoever, whether coming from the United States or foreign countries, from infected or uninfected ports, whether the persons included are diseased or have recently been exposed to contagion, or are perfectly sound and healthy, and coming from ports in which there is no suspicion of contagious diseases.

I have no doubt of the power to quarantine all vessels arriving in the Mississippi from foreign ports for a sufficient length of time to enable the health officers to determine whether there are among her passengers any persons afflicted with a contagious disease. But the state of Louisiana undertakes to do far more than this. It authorizes the state board of health, at its discretion, to 'prohibit the introduction into any infected portion of the state of persons acclimated, unacclimated, or said to be immune, when in its judgment the introduction of said persons would add to or increase the prevalence of the disease;' and at its meeting on September 29, 1898, the board of health adopted the following resolution:

'That hereafter, in the case of any town, city, or parish of Louisiana being declared in quarantine, no body or bodies of people, immigrants, soldiers, or others shall be allowed to enter said town, city, or parish so long as said quarantine shall exist, and that the president of the board shall enforce this resolution.'

In other words, the board of health is authorized and assumes to prohibit in all portions of the state which it chooses to declare in quarantine, the introduction or immigration of all persons from outside the quarantine district, whether infected or uninfected, sick or will, sound or unsound, feeble or healthy; and that, too, not for the few days necessary to establish the sanitary status of such persons, but for an indefinite and possibly permanent period. I think this is not a necessary or proper exercise of the police power, and falls within that numerous class of cases which hold that states may not, in the assumed exercise of police power, interfere with foreign or interstate commerce.

The only excuse offered for such a wholesale exclusion of immigrants is, as stated by the supreme court, 'to keep down, as far as possible, the number of persons to be brought within danger of contagion or infection, and by means of this reduction to accomplish the subsidence and suppression of the disease, and the spread of the same.' In other words, the excuse amounts to this: that the admission, even of healthy persons, adds to the possibility of the contagion being communicated upon the principle of adding fuel to the flame. It does not increase the danger of contagion by adding infected persons to the population, since the bill avers that all the immigrants were healthy and sound. All it could possibly do is to increase the number of persons who might become ill if permitted to be added to the population. This is a danger, not to the population, but to the immigrants. It seems to me that this is a possibility too remote to justify the drastic measure of a total exclusion of all classes of immigrants, and that the opinion of the court is directly in the teeth of Hannibal & St. J. R. Co. v. Husen, 95 U.S. 465, 24 L. ed. 527, wherein a state statute, which prohibited the driving or conveying of any Texas, Mexican, or Indian cattle into the state, between March 1 and November 1 in each year, was held to be in conflict with the commerce clause of the Constitution. Such statute was declared to be more than a quarantine regulation, and not a legitimate exercise of the police power of the state. Said Mr. Justice Strong (p. 472, L. ed. 530): 'While we unhesitatingly admit that a state may pass sanitary laws, and laws for the protection of life, liberty, health, or property within its borders; while it may prevent persons and animals suffering under contagious or infectious diseases, or convicts, etc., from entering the state; while, for the purpose of self-protection, it may establish quarantine and reasonable inspection laws,-it may not interfere with the transportation into or through the state, beyond what is absolutely necessary for its self-protection. It may not, under the cover of exerting its police powers, substantially prohibit or burden either foreign or interstate commerce.' The statute was held to be a plain intrusion upon the exclusive domain of Congress; that it was not a quarantine law; not an inspection law, and was objectionable because it prohibited the introduction of cattle, no matter whether they may do an injury to the inhabitants of a state or not; 'and if you do bring them in, even for the purpose of carrying them through the state without unloading them, you shall be subject to extraordinary liabilities.' Cases covering the same principle are those of State v. The Constitution, 42 Cal. 578, 10 Am. Rep. 303, and Bangor v. Smith, 83 Me. 422, 13 L. R. A. 686, 22 Atl. 379.

I am also unable to concur in the construction given in the opinion of the court to the treaty stipulation with France and other foreign powers. The treaty with France of 1803 provides that 'the ships of France shall be treated upon the footing of the most favored nations in the ports above mentioned' of Louisiana. Article 15 of the treaty with Greece of December 22, 1837, set forth in the opinion, provides that vessels arriving directly from the Kingdom of Greece at any port of the United States of America, 'and provided with a bill of health granted by an officer having competent power to that effect at the port whence such vessel shall have sailed, setting forth that no malignant or contagious diseases prevailed in that port, shall be subjected to no other quarantine than such as may be necessary for the visit of the health officer of the port where such vessels shall have arrived, after which said vessels shall be allowed immediately to enter and unload their cargoes: Provided always, That there shall be on board no person who, during the voyage, shall have been attacked with any malignant or contagious diseases; that such vessels shall not, during their passage, have communicated with any vessel liable itself to undergo a quarantine; and that the country whence they came shall not at that time be so far infected or suspected that, before their arrival, an ordinance had been issued in consequence of which all vessels coming from that country should be considered as suspected, and consequently subject to quarantine.' If the law in question in Louisiana, excluding French ships from all access to the port of New Orleans, be not a violation of the provision of the treaty that vessels 'shall be subjected to no other quarantine than such as may be necessary for the visit of the health officer of the port where such vessels shall have arrived, after which said vessels shall be allowed immediately to enter and unload their cargoes,' I am unable to conceive a state of facts which would constitute a violation of that provision. Necessary as efficient quarantine laws are, I know of no authority in the states to enact such as are in conflict with our treaties with foreign nations.