Page:Harvard Law Review Volume 2.djvu/327

 QUARANTINE LAWS. 309

becomes judicial when there is a plain excess of legislative authority. A court can only arrest the proceedings and declare a levy void when the absence of public interest in the purpose for which the funds are to be raised is so clear and palpable as to be perceptible to any mind at first blush." ^ A very similar ques- tion has arisen in case of the regulation by the Legislature of corporations holding inviolable charters. Such laws, purporting to be police regulations, "must have reference to the comfort, safety, or welfare of society ; they must not be in conflict with any of the provisions of the charter; and they must not under pretence of regulation take away from the corporation any of the* essential rights and privileges which the charter confers. In short, they must be police regulations in fact, and not amendments of the charter in curtailment of the corporate franchise.*' ^ If it be clear and manifest beyond a reasonable doubt that under color of quarantine a regulation seeks to accomplish other and unlawful purposes, a court is authorized to declare it unconstitutional. It seems necessary, however, that an express constitutional provision should be violated.

It may be contended with some force that when a quarantine regulation is not a bona fide exercise of police power, it deprives a person of liberty or property without due process of law, within the meaning of the Fourteenth Amendment. As we have seen, it is practically impossible for ** process of law ** to be provided by quarantine laws on account of their necessarily summary charac- ter. It is, of course, out of the question that one compelled to submit to sanitary regulations imposed to prevent actual or reasonably apprehended danger should be heard to say that his constitutional rights had been violated simply because, as it turned out, there was no danger of his communicating the disease. " Such a position, if pushed to its logical conclusion, would utterly overthrow the exercise of the police power by the State." ^ But in the case we are now considering, the police power is out of the question. That the deprivation is only temporary can make no difference. The question would, however, be a nice one, for

^ Cooley, Princ. Const. Law, 58, 59. See, also, S. & V. R. R. Co. v. City of Stockton, 41 Cal. 147, 175 (1871); The Tide Water Company v. Coster, 18 N.J. Eq. 518, 521 (1866).

> Cooley, Const. Lim. 4th ed. 719.

Train v, Boston Disinfecting Co., 144 Mass. 523, 531 (1887).
 * State V, Addington, 77 Mo. no. 117 (1882), an oleomargarine case. See, also,