Page:Harvard Law Review Volume 2.djvu/323

 QUARANTINE LAWS, 305

that the extent of prohibition necessary for the purpose of the law was a question for the Legislature, not subject to the supervision of the courts, unless in case of "glaring abuse of power." It is instructive to compare with this the reasoning of the Supreme Court, in their unanimous opinion, delivered by Mr. Justice Strong. The first proposition is, that the law in question " is a plain regulation of interstate commerce, — a regulation extending to prohibition." It is conceded that under the police power a State is justified in excluding ** property dangerous to the property of citizens of the State ; for example, animals having contagious or infectious diseases. . . . But whatever may be the nature and reach of the police power, it cannot be exercised over a subject confided exclusively to Congress by the Federal Constitution. • . . While for the purpose of self-protection it [the State] may establish quarantine and reasonable inspection laws, it may not interfere with transportation into or through the State, beyond what is absolutely necessary for its self-protection.^ It may not, under cover of exerting its police powers, substantially prohibit or burden either foreign or interstate commerce." Henderson v. The Mayor of New York and Chy Lung v. Freeman are there cited, and it is said : " Neither of these cases denied the right of the State, to protect herself against paupers, convicted criminals, or lewd women, by necessary and proper laws, in the absence of legislation by Congress, but it was ruled that the right could only arise from vital necessity, and that it could not be carried beyond the scope of that necessity. . . . They deny validity to any State legis- lation professing to be an exercise of police power for protection against evils from abroad, which is beyond the necessity for its exercise, wherever it interferes with the rights and powers of the Federal government." The court refused to concur with Yeazel V. Alexander in holding that the courts could not inquire whether the prohibition did not extend beyond the dangers to be appre- hended, saying, that, as the range of the police power of the State " sometimes comes very near to the field committed by the Con- stitution to Congress, it is the duty of the courts to guard vigi- lantly against any needless intrusion."

1 Quoted with approval by the court in Bowman v. Chicago &N. W. Ry. Co., 125 U. S. 465, 492, 8 Sup. Ct. Rep. 689, 702 ( 1888). At p. 513, in the dissenting opinion of Waitc, C. J., Harlan and Gray, JJ., it is said, ** It was only because the Missouri statute embraced cattle that were free from the disease that it was declared unconstitutional"