It will be observed that these resolutions do not suggest or recommend that the United States Government shall take control of or interfere with interstate quarantine, except when acting in cooperation with the several State boards of health, and the bill as originally introduced was thought to carry out the purposes desired by this conference of the people of the States which had been infected or threatened with yellow fever, but the substitute changes entirely the purposes of the bill and its provisions, and undertakes to make both maritime and State quarantine exclusively matters of national jurisdiction.

Since 1798 and 1799, following the epidemics of yellow fever in the cities of Philadelphia and New York, the Congress of the United States has at various times passed laws on the subject of quarantine. These laws have always been passed with a view to having the officials of the United States act in cooperation with the health officers of the States and the municipal officers at the ports, and not with a view of having such officers to act independently of such State and municipal officials, and Congress has never undertaken to enact a law to give United States officials exclusive control over quarantine matters, either at the ports or between the States.

The laws of the United States now in force, in our judgment, are ample and sufficient to enforce and carry out all necessary quarantine regulations at the ports and maritime quarantine regulations, and when they are carried out in cooperation with the authorities of the States, as intended by the acts of Congress, they have always operated and will continue to operate harmoniously and for the benefit of the people. Congress has from year to year appropriated money for this purpose and directed it to be expended under the supervision and direction of the Secretary of the Treasury, through the Public Health and Marine-Hospital Service. Of the appropriation made for the last fiscal year that Department has still on hand the sum of $130,000 appropriated for this purpose, and doubtless if an additional sum was needed Congress would appropriate it.

That it may be seen what laws Congress has enacted on the subject of quarantine that are now in force, and what rules and regulations have been made by the officials of the United States having the matter in charge, for the purpose of preventing the introduction of yellow fever and other contagious or infectious diseases into the United States, we make the existing laws and regulations upon that subject a part of this report. (See Appendix.)

We believe that the various States have the power and authority, in the exercise of their police powers, to prevent the introduction of disease and pestilence into their limits and to regulate and control such within their limits. As was said by Chief Justice Taney, in the License cases, 5 Howard, 504-576:

It must be remembered that disease, pestilence, and pauperism are not subjects of commerce, although sometimes amongst the attendant evils. They are not things to be regulated or trafficked in, but to be prevented as far as human foresight and human means can guard against them.

And Chief Justice Marshall, in the case of Brown . Maryland (12 Wheat.), distinctly recognized the right of the States to enact laws for the removal or destruction of infectious or unsound articles, and said that it was undoubtedly an exercise of police power by the States and forms an exception to the prohibition on the States, that Congress

should have exclusive power to regulate the operations of interstate and foreign commerce, and he further said:

The laws of the United States expressly sanction the health laws of the several States.

From the time of this case (Brown v. Maryland) the Supreme Court of the United States-while they have oftentimes declared that regulations in reference to health and other police regulations of the States which unnecessarily place burdens upon commerce, are void-has continually upheld the right of the States in the exercise of their police powe's to pass quarantine laws and regulations, and to exclude from the limits of the several States persons affected with disease, and to pass all necessary and proper regulations for the protection of the health, morals, and welfare of the people of the States. We do not believe, therefore, that Congress has the power to take exclusive control of quarantine matters within the States, or to regulate, under the commerce clause of the Constitution, the transportation of persons from one State to another, who are infected with disease, or who have been exposed to disease. We believe that his power is inherent in the States, was reserved to them by the Constitution of the United States, and remains there, and that the exercise of such police powers by the States is not an interference with or an attempt to regulate commerce between the States.

With this view we must insist that section 7 of the bill, which proposes to make it a crime for any State or municipal health officer or other person to obstruct or delay any common carrier, or interfere with any vessel engaged in the transportation of passengers between the States, is an effort on the part of Congress to control and regulate the police powers of the various States, under the commerce clause of the Constitution. Congress has never before undertaken to assume control over such transportation, doubtless because Congress has heretofore been of the opinion that it had no such authority under the Constitution, nor do we believe that it has. Even if this were a doubtful question, we do not believe that Congress should now undertake, under the guise of regulating commerce, to make it a crime for a State or municipal officer to act in pursuance of the laws of such State or municipality, passed in pursuance of the police powers of the State, and to make such officer amenable to the laws of the United States and subject him to punishment by the United States courts for attempting to enforce the laws of the State.

POWER OF THE STATES AS TO QUARANTINE LAWS.

We cite the following case, to be found in 57 Federal Reporter (p. 276), decided by the circuit court of the United States for the western division of the northern district of Michigan:

[Minneapolis, St. P. and S. Ste. M. Rwy. Co. v. Milner et al. Circuit court, W. D. Michigan, N. D.,

July 20, 1893.]

1. Constitutional law-Regulation of commerce-State quarantine laws.-The detention and disinfection of immigrants by order of a State board of health, with the purpose of preventing infectious disease, is not a regulation of foreign commerce by a State, within the meaning of the prohibition in the Constitution of the United States, article 1, sec. 8. (Brown v. Maryland, 12 Wheaton, 419, followed.)

4. Same-Quarantine regulations.-In enforcing its quarantine regulations a State may detain immigrants from noninfected places who have traveled with others from infected localities.

5. Same-Detaining persons passed by Federal officers.-The enforcement of the quarantine regulations of a State against immigrants can not be restrained by injunetion in a Federal court, although the persons detained thereunder have been examined and passed by Federal health officers.

s. Same-Costs of inspection.-The costs and charges of quarantine inspection under State laws may lawfully be imposed upon the carrier which brings the suspected passengers into the country, as being incident to the business in which it is engaged.

Before Severens and Sage, district judges.

PER CURIAM.

The bill sets forth that the complainant, a corporation of the State of Michigan, is, and has been for several years past, engaged, under a traffic arrangement with the Canadian Pacific Railway Company, in the transportation of passengers, on through tickets from Quebec, westward through Canada and over the line of the complainant's railway to and through the States of Michigan, Wisconsin, Minnesota, and North Dakota; also eastward from those States through Canada to Quebec; a large portion of the passengers westward being persons traveling from Norway and Sweden to points in said States.

The defendants, it is averred, constitute the State board of health of Michigan, assuming to exercise authority under an act passed by the legislature of said State, and approved June 20, 1885, entitled "An act to provide for the prevention of the introduction and spread of cholera and other dangerous communicable diseases,' as amended by 'An act approved April 26, 1893.' The bill has attached to it as exhibits a copy of each of said acts, and of certain rules adopted by the board, purported to be issued under and by virtue of the authority conferred by the amendatory It is further averred that the board, acting through its secretary and one of its inspectors, and in pursuance of said rules, is daily detaining and attempting to detain passengers on the Canadian Pacific Railway at the point opposite Sault Ste. Marie, Mich., and prohibiting their entering the State of Michigan until they have undergone the quarantine detention, and until the disinfection of their baggage as prescribed in said rules.

act.

It is averred that this detention, examination, and process of disinfection of baggage is applied to all immigrants, irrespective of whether they came from an infected or healthy locality abroad, and without regard to their point of destination. It is further averred that all said emigrants and travelers have been, before said detention, inspected by United States officials detailed for the purpose, and that complainant has not received nor permitted to be conveyed within the State of Michigan any passenger, traveler, or emigrant coming from any European port through the Dominion of Canada, excepting such as have presented a certificate of inspection of the United States inspector. It is also averred that the board is threatening to arrest officials and employees of complainant unless complainant shall submit to and comply with the requirements of the board.

The claim is that the rules and action of the board of health are in direct violation of section 8, article 1, of the Constitution of the United States, in that they attempt to regulate and prohibit commerce with foreign nations; and that they are also in violation of the treaty made by and between the United States and Norway and Sweden, and now existing; also that they are over, above, and beyond the powers conferred upon the board by said act and amendatory act of the legislature of Michigan. The bill then sets forth averments of irreparable damages and prays for an injunction.

The motion for a preliminary injunction will be overruled for the following reasons: 1. In Brown v. Maryland (12 Wheat., 419-433), Chief Justice Marshall recognized that the removal or destruction of infectious or unsound articles was undoubtedly an exercise of the police power of the State, and an exception to the prohibition resulting from the exclusive power of Congress to regulate the operations of foreign and interstate commerce, and that laws of the United States expressly sanction the health laws of the several States. In the License Cases (5 Howard, 504, 576), Chief Justice Taney declared that "it must be remembered that disease, pestilence, and pauperism are not subjects of commerce, although sometimes among the attendant evils. They are not things to be regulated or trafficked in, but to be prevented as far as human foresight or human means can guard against them."

In Crutcher v. Kentucky (141 U. S., 47, 11 Sup. Ct. Rep., 851), Justice Bradley referred to these cases with approval, and stated with great clearness and force the distinction between the exercise of its police power by a State and an attempt to leg.

islate upon matters of interstate or foreign commerce which are exclusively within the power of the Federal Government. These authorities render it unnecessary to refer particularly to the cases cited for the complainant. It is sufficient to say that they all relate to State enactments concerning articles of commerce, and hence are not applicable here. Moreover, the quarantine act of Congress, approved February 15, 1893, expressly recognizes the validity of State laws, and in section 3 requires the Supervising Surgeon-General of the Marine-Hospital Service to cooperate with and aid State and municipal boards of health in the execution and enforcement of their rules and regulations.

4. To the objection that passengers from noninfected countries and localities are detained, the answer is that such detentions are, in the nature of the case, to a certain extent unavoidable; and passengers from such countries and localities may have become properly subject to detention by reason of having mingled with others who could communicate pestilence or disease to which they themselves had been exposed or subjected. An opportunity for examination and inspection is indispensable also. 5. The objection that passengers who had certificates from United States inspectors were detained is not tenable. The States may exercise their police power according to their own discretion and by means of their own officials and methods. The inconve nience resulting to emigrants and travelers from being halted and subjected to examination and detention at State lines is of trifling importance at a time when every effort is required and is being put forth to prevent the introduction and spread of pestilential and communicable diseases.

The costs and charges which are incurred in such quarantine inspection may lawfully be imposed on the railway company as being incident to the business in which it is engaged. The costs of the motion will be taxed to the complainant. (57 Federal Reporter, pp. 276-278.)

The Supreme Court of the United States, in the case of Gibbons v. Ogden (9 Wheaton, p. 203), Chief Justice Marshall, delivering the opinion, said:

Inspection laws, quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of a State, and those which respect turnpikes, roads, etc., form a portion of that immense mass of legislation which embraces everything within the territory of a State not surrendered to the General Government. No direct general power over these subjects is granted to Congress, and consequently they remain subject to State legislation.

In the case of Mayor and Aldermen of New York v. Miln (11 Peters, 133), the Supreme Court of the United States decided that the statute of the State of New York, which required every master of a vessel arriving from foreign ports in that of New York City to report the names of all his passengers, with certain particulars of their age, occupation, last place of settlement, and place of their birth, was the exercise of police power, properly within the control of the State, and that this was unaffected by the clause of the Constitution of the United States, which confers on Congress the right to regulate commerce. It was insisted in that case and argued before the court that this act was an invasion of the exclusive right of Congress to regulate commerce. It will be perceived that this was a case in which the State of New York undertook to put a requirement upon the officers of a ship coming from foreign ports; and if it was an interference with commerce at all it was an interference with foreign commerce concerning the regu lation of which it has always been admitted that Congress has the exclusive authority.

The Supreme Court of the United States, in what is known as the Slaughterhouse cases, referred to this case in 11 Peters, page 133, and said that the exclusive authority of State legislatures over this subject (i. e., police powers) is strikingly illustrated in the case of The City of New York v. Miln, and the case was approved by the court in

the Slaughterhouse cases, although Justice Miller declared that it could not be denied that such a statute as was referred to in the Miln case operated, at least, indirectly upon the commercial intercourse between citizens of the United States and foreign countries. The court also decided in the Slaughterhouse cases, referring to the police power of the States:

The powers here exercised by the legislature of Louisiana (i. e., the police power) is in its essential nature one which has been up to the present period in the constitutional history of this country always conceded to belong to the States, however it may now be questioned in some of its details. (Slaughterhouse cases, 16 Wallace, p. 36.)

The headnotes to the case above referred to, Mayor, etc., of New York v. Miln, so clearly and succinctly state the doctrine for which we contend that we incorporate them here:

That a State has the same undeniable and unlimited jurisdiction over all persons and things within its territorial limits as any foreign nation, where that jurisdiction is not surrendered or restrained by the Constitution of the United States.

That by virtue of this, it is not only the right, but the bounden and solemn duty of a State to advance the safety, happiness, and prosperity of its people, and to provide for its general welfare by any and every act of legislation, which it may deem to be conducive to these ends, where the power over the particular or the manner of its exercise is not surrendered or restrained in the manner just stated.

That all these powers which relate merely to a municipal legislation, or what may perhaps more properly be called internal police, are not thus surrendered or restrained; and that, consequently, in relation to these, the authority of a State is complete, unqualified, and exclusive.

In the case of Gilman v. Philadelphia (70 U. S. (3 Wall.), pp. 730– 731) Justice Swayne, delivering the opinion of the court and discussing the police powers of the States under the quarantine laws, said:

Under quarantine laws a vessel registered or enrolled and licensed may be stopped before entering her port of destination, or be afterwards removed and detained elsewhere, for an indefinite period; and a bale of goods upon which the duties have or have not been paid, laden with infection, may be seized under "health laws," and if it can not be purged of its poison may be committed to the flames.

The inconsistency between the powers of the States and the nation as thus exhibited is quite as great as in the case before us, but it does not necessarily involve collision or any other evil. None has hitherto been found to ensue. The public good

is the end and aim of both.

If it be objected that the conclusion we have reached will arm the States with authority potent for evil, and liable to be abused, there are several answers worthy of consideration. The possible abuse of any power is no proof that it does not exist. Many abuses may arise in the legislation of the States which are wholly beyond the reach of the Government of the nation. The safeguard and remedy are to be found in the virtue and intelligence of the people. They can make and unmake constitutions and laws; and from that tribunal there is no appeal. If a State exercise unwisely the power here in question, the evil consequences will fall chiefly upon her own citizens. They have more at stake than the citizens of any other State. Hence, there is as little danger of the abuse of this power as of any other reserved to the States. Whenever it shall be exercised openly or covertly, for a purpose in conflict with the Constitution or laws of the United States, it will be within the power, and it will be the duty of this court to interpose with a vigor adequate to the correction of the evil.

In the case of Smith v. Turner and Norris v. The City of Boston, known as the "Passenger cases" (7 Howard, 400), Justice McLean said:

In giving the commercial power to Congress, the States did not part with that power of s preservation which must be inherent in every organized community. They may guard against the introduction of anything which may corrupt the morals or endanger the health or lives of their citizens. Quarantine or health laws have been passed by the States, and regulations of police for their protection and welfare.