Page:Harvard Law Review Volume 2.djvu/318

 300 ^^R VARD LA W RE VIE W.

fore State regulation of the subject was excluded, was treated as an exceedingly nice question of construction.^ Besides general reasoning, the court made use of various statutes of the United States, upon kindred subjects, to interpret the failure of Congress to regulate the matter by legislation.

The preceding discussion of the general doctrines pertaining to the regulation of foreign and interstate commerce has seemed necessary to a clear understanding of the grounds upon which quarantine laWs are to be sustained, and the limits within which they are constitutional. The right of the State to enact quarantine laws has been assumed from the beginning in the decisions of the Supreme Court, and was never brought into question down to so late a date as 1885. In Gibbons v, Ogden^ these laws are named by Chief Justice Marshall as a component part " of that immense mass of legislation which embraces everything within the territory of a State not surrendered to the general government." It is also said of quarantine laws, "The constitutionality of such laws has never, so far as we are informed, been denied.'* Many dicta to the same effect may be found in later cases.^ In Peete v, Mor- gan,* the court say, "That the power to establish quarantine laws rests with the States, and has not been surrendered to the general government, is settled in Gibbons v. Ogden." In Morgan v. Louisiana,^ the plaintiff in error had obtained in the court of original jurisdiction an injunction against the Louisiana Board of Health, forbidding the collection of the fee allowed for examina- tion of vessels by the quarantine laws of the State. This decision was reversed by the Supreme Court of Louisiana^ The Supreme Court of the United States, speaking through Mr. Justice Miller, expressed an opinion substantially as follows : Since the statute provided that the fees collected should go wholly to defray quarantine expenses, and the fees were in compensation for ser- vices actually rendered, there was no tax or duty of tonnage im-

iln Groves v. Slaughter, 15 Pel. 449 (1841), the court were of the opinion that a State could prohibit the introduction of slaves for the purpose of sales without violating the commercial clause of the Constitution.

•9 Wheat. I, 203, 205 (1824).

Cases, 5 How. 504, 581, 632 (1847); Passenger Cases, 7 How. 283, 414, 484 (1849); Gilman v, Philadelphia, 3 Wall. 713, 730 (1865).
 * For example, in City of New York v, Miln. 11 Pet. 102, 142 (1837); Th« License


 * I9 Wall. 581, 582 (1873).


 * ii8U. S. 455 (1886).


 * Railroad and Steamboat Company v. Board of Health, 36 La. An. 666 (1884).