Page:Harvard Law Review Volume 2.djvu/325

 QUARANTINE LAWS. 307

to the protection of the public health that a quarantine should be declared whenever there is reasonable apprehension of danger of pestilence from the place quarantined against, no matter if it turned out later that there was no actual danger. A court ought not, in so serious a matter to interfere except in a case clear beyond a reasonable doubt.^ But if such a case is before them, it seems the unnecessary regulation of interstate or foreign com- merce ought to be declared unconstitutional ; for since it was in no sense necessary to the protection of health, it cannot shelter itself under the police power. The question is, not whether danger actually existed, but whether there was sufficient reason to appre- hend danger to justify the establishment of a quarantine law ; and if this question admits of a reasonable doubt, the quarantine must be declared constitutional, at least unless it is maintained after all reason to believe it necessary has ceased. The only authorities of direct application the writer has found are dicta oi Chief Justice Taney in The Passenger Cases,^ and of the Court of Appeals of Maryland, in an early case.* Chief Justice Taney goes to the length of saying, " However groundless the apprehension, and however injurious and uncalled for such [quarantine] regulations may be, still, if adopted by the State, they must be obeyed, and the courts of the United States cannot treat them as nullities." These dicta would go so far as to exclude any interference by the courts, at least so long as there was no enactment of laws for other and unlawful purposes under color of quarantine laws. In point of authority the dicta alluded to cannot be considered of much weight.

There is additional reason to regard as unconstitutional a quar- antine regulation clearly not necessary for the protection of health, when the regulation is also manifestly enacted for other purposes ; for example, as a commercial retaliation for being quar- antined against, — a not infrequent resort in order to compel the

1 The question left before the court is just such a one as arises when a court is called upon to reverse the action of a jury or a lower court in deciding questions of fact. In order to interfere, the court must be satisfied clearly that upon the evidence presented reasonable men could not fairly have reached that decision. There must be no room for a reasonable difference of opinion. See an article on " Constitutionality of Legislation : The Precise Question for a Court." The Nation, April 10, 1884.

« 7 How 283, 484 (1849).

« Harrison v. Mayor and City Council of Baltimore, i Gill, 264, 277 (1843). ^ce, also, an article on Quarantine Law in i South. L. J. & Rep., pp. 161, 173 et seq.