The system of quarantine laws established by statutes of
Louisiana is a rightful exercise of the police power for the
protection of health, which is not forbidden by the Constitution of
the United States.
While some of the rules of that system may amount to regulations
of commerce with foreign nations or among the states, though not so
designed, they belong to that class which the states may establish
until Congress acts in the matter by covering the same ground or
forbidding state laws.
Congress, so far from doing either of these things, has, by the
Act of 1799, c. 53, Rev.Stat., and previous laws, and by the recent
Act of 1878, 20, Stat. 37, adopted the laws of the states on that
subject and forbidden all interference with their enforcement.
The requirement that each vessel passing a quarantine station
shall pay a fee fixed by the statute for examination as to her
sanitary condition and the ports from which she came is a part of
all quarantine systems, and is a compensation for services rendered
to the vessel, and is not a tax within the meaning of the
Constitution concerning tonnage tax imposed by the states.
Nor is it liable to constitutional objection as giving a
preference for a port of one state over those of another. That
section (nine) of the first Article of the Constitution is a
restraint upon powers of the general government, and not of the
states, and can have no application to the quarantine laws of
Louisiana.
This was a writ of error to the Supreme Court of the
Louisiana.
The plaintiff in error was plaintiff in the state court, and in
the court of original jurisdiction obtained an injunction against
the Board of Health prohibiting it from collecting from the
plaintiffs the fee of $30 and other fees allowed by Act 69 of the
Legislature of Louisiana of 1882, for the examination which the
quarantine laws of the state required in regard to all vessels
passing the station. This decree was reversed, on appeal, by the
supreme court of the state, and to this judgment of reversal the
present writ of error was prosecuted.
Page 118 U. S. 456
The grounds on which it is sought in this Court to review the
final judgment of the Louisiana court are thus stated in an amended
petition filed in the cause in the court of first instance:
"The amended petition of plaintiffs respectfully
represents:"
"That all the statutes of the State of Louisiana relied on by
defendants for collection of quarantine and fumigation fees are
null and void because they violate the following provisions of the
United States Constitution:"
"Article first, section 10, paragraph 3, prohibits the states
from imposing tonnage duties without the consent of Congress."
"Article first, section 8, paragraph 3, vesting in Congress the
power to regulate commerce, which power is exclusively so
vested."
"Article first, paragraph 6, section 9, which declares that no
preference shall be given by any regulation of commerce to the
ports of one state over that of another, nor shall vessels bound to
or from one state be obliged to enter, clear, or pay duties in
another."
The statute which authorizes the collection of these fees,
approved July 1, 1882, is as follows:
"SEC. 1.
Be it enacted by the General Assembly of the State
of Louisiana that the resident physician of the Quarantine
Station on the Mississippi River shall require for every inspection
and granting certificate the following fees and charges: for every
ship, thirty dollars ($30); for every bark, twenty dollars ($20);
for every brig, ten dollars ($10); for every schooner, seven
dollars and a half ($7.50); for every steamboat (tow boats
excepted), five dollars ($5); for every steamship, thirty dollars
($30)."
"SEC. 2.
Be it further enacted . . . that the Board of
Health shall have an especial lien and privilege on the vessels so
inspected for the amount of said fees and charges, and may collect
the same, if unpaid, by suit before any court of competent
jurisdiction, and in aid thereof shall be entitled to the writ of
provisional seizure on said vessels."
"SEC. 3.
Be it further enacted . . . that all laws, and
parts of laws, in conflict with the provisions of this act, are
hereby
Page 118 U. S. 457
repealed, and all laws, and parts of laws, on the same subject
matter, not in conflict or inconsistent herewith, are continued in
full force and effect. "
Page 118 U. S. 458
MR. JUSTICE MILLER, after stating the case as above reported,
delivered the opinion of the Court.
The services for which these fees are to be collected are parts
of a system of quarantine, provided by the laws of Louisiana for
the protection of the state, and especially of New Orleans, an
important commercial city, from infectious and contagious diseases
which might be brought there by vessels coming through the Gulf of
Mexico from all parts of the world and up the Mississippi River to
New Orleans.
This system of quarantine differs in no essential respect from
similar systems in operation in all important seaports all over the
world where commerce and civilization prevail. The distance from
the mouth of the Mississippi River to New Orleans is about a
hundred miles. A statute of Louisiana of 1855, organizing this
system, created a Board of Health, to whom its administration was
mainly confided, and it authorized this
Page 118 U. S. 459
board to select and establish a quarantine station on the
Mississippi not less than seventy-five miles below New Orleans.
Money was appropriated to buy land, build hospitals, and furnish
other necessary appliances for such an establishment. This and
other statutes subsequently passed contained regulations for the
examination of vessels ascending the river and of their passengers
for the purpose of ascertaining the places whence these vessels
came, their sanitary condition, and the healthy or diseased
condition of their passengers. If any of these were such that the
safety of the City of New Orleans or its inhabitants required it as
a protection against disease, they could be ordered into quarantine
by the proper health officer until the danger was removed, and, if
necessary, the vessel might be ordered to undergo fumigation. If on
this examination there was no danger to be apprehended from vessel
or passengers, a certificate of that fact was given by the
examining officer, and she was thereby authorized to proceed and
land at her destination. If ordered to quarantine, after such
detention and cleansing process as the quarantine authorities
required, she was given a similar certificate and proceeded on her
way. If the condition of any of the passengers was such that they
could not be permitted to enter the city, they might be ordered
into quarantine while the vessel proceeded without them. Whether
these precautions were judicious or not this Court cannot inquire.
They are a part of and inherent in every system of quarantine.
If there is a city in the United States which has need of
quarantine laws, it is New Orleans. Although situated over a
hundred miles from the Gulf of Mexico, it is the largest city which
partakes of its commerce, and more vessels of every character come
to and depart from it than any city connected with that commerce.
Partaking as it does of the liability to diseases of warm climates,
and in the same danger of all other seaports of cholera and other
contagious and infectious disorders, these are sources of anxiety
to its inhabitants, and to all the interior population of the
country who may be affected by their spread among them. Whatever
may be the truth with regard to the contagious character of yellow
fever and
Page 118 U. S. 460
cholera, there can be no doubt of the general belief, and very
little of the fact, that all the invasions of these epidemics in
the great valley of the Mississippi River and its tributaries in
times past have been supposed to have spread from New Orleans, and
to have been carried by steamboats and other vessels engaged in
commerce with that city. And the origin of these diseases is almost
invariably attributed to vessels ascending the Mississippi River
from the West Indies and South America, where yellow fever is
epidemic almost every year, and from European countries, whence our
invasions of cholera uniformly come.
If there is any merit or success in guarding against these
diseases by modes of exclusion, of which the professional opinion
of medical men in America is becoming more convinced of late years,
the situation of the City of New Orleans for rendering this
exclusion effective is one which invites in the strongest manner
the effort. Though a seaport, in fact it is situated a hundred
miles from the sea, and is only to be reached by vessels from
foreign countries by this approach. A quarantine station located as
this one is under the Louisiana laws, with vigilant officers, can
make sure of inspecting every vessel which comes to New Orleans
from the great ocean in any direction. Safe and ample arrangements
can be made for care and treatment of diseased passengers and for
the comfort of their companions, as well as the cleansing and
disinfecting of the vessels. The system of quarantine has here
therefore as fair a trial of its efficacy as it could have
anywhere, and the need of it is as great.
None of these facts is denied; in all that is important to the
present inquiry, they cannot be denied. Nor is it denied that the
enactment of quarantine laws is within the province of the states
of this union. Of all the elements of this quarantine system of the
State of Louisiana, the only feature which is assailed as
unconstitutional is that which requires that the vessels which are
examined at the quarantine station, with respect to their sanitary
condition and that of their passengers, shall pay the compensation
which the law fixes for this service.
Page 118 U. S. 461
This compensation is called a "tonnage tax," forbidden by the
Constitution of the United States, a regulation of commerce
exclusively within the power of Congress, and also a regulation
which gives a preference to the port of New Orleans over ports of
other states.
These are grave allegations with regard to the exercise of a
power which, in all countries and in all the ports of the United
States, has been considered to be a part of and incident to the
power to establish quarantine. We must examine into this
proposition and see if anything in the Constitution sustains it. Is
this requirement that each vessel shall pay the officer who
examines it a fixed compensation for that service a "tax?" A "tax"
is defined to be "a contribution imposed by government on
individuals for the service of the state." It is argued that a part
of these fees goes into the treasury of the state or of the city,
and it is therefore levied as part of the revenue of the state or
city, and for that purpose. But an examination of the statute shows
that the excess of the fees of this officer over his salary is paid
into the city treasury to constitute a fund wholly devoted to
quarantine expenses, and that no part of it ever goes to defray the
expenses of the state or city government.
That the vessel itself has the primary and deepest interest in
this examination it is easy to see. It is obviously to her
interest, in the pursuit of her business, that she enter the city
and depart from it free from the suspicion which at certain times
attaches to all vessels coming from the Gulf. This she obtains by
the examination, and can obtain in no other way. If the law did not
make this provision for ascertaining her freedom from infection, it
would be compelled to enact more stringent and more expensive
penalties against the vessel herself when it was found that she had
come to the city from an infected port, or had brought contagious
persons or contagious matter with her, and throwing the
responsibility for this on the vessel, the heaviest punishment
would be necessary, by fine and imprisonment, for any neglect of
the duty thus imposed. The state now says:
"You must submit to this examination. If you appear free of
objection, you are relieved by the officer's certificate
Page 118 U. S. 462
of all responsibility on that subject. If you are in a condition
dangerous to the public health, you are quarantined and relieved in
this manner. For this examination and fumigation you must pay. The
danger comes from you, and though it may turn out that in your case
there is no danger, yet, as you belong to a class from which all
this kind of injury comes, you must pay for the examination which
distinguishes you from others of that class."
It seems to us that this is much more clearly a fair charge
against the vessel than that of half pilotage, where the pilot's
services are declined and where all the pilot has done is to offer
himself. This latter has been so repeatedly held to be a valid
charge, though made under state laws, as to need no citations to
sustain it.
In all cases of this kind it has been repeatedly held that when
the question is raised whether the state statute is a just exercise
of state power or is intended by roundabout means to invade the
domain of federal authority, this Court will look into the
operation and effect of the statute to discern its purpose.
See
Henderson v. Mayor of New York, 92 U. S.
259;
Chy Lung v. Freeman, 92 U. S.
275;
Cannon v. New
Orleans, 20 Wall. 577.
In the case of
Packet Co. v. St. Louis, 100 U.
S. 423, where a city wharfage tax was assailed on the
same ground as the fee in the present case, the court said the fee
was a fair equivalent for the use of the wharf;
"Nor is there any ground whatever to suppose that these wharfage
fees were exacted for the purpose of increasing the general revenue
of the city beyond what was necessary to meet its outlay, from time
to time, in maintaining its wharves in such condition as the
immense business of that locality required."
So here there is no reason to suppose that these fees had any
other purpose or destination than to keep up and pay the expenses
of the quarantine station and system.
But conceding it to be a tax, in what sense can it be called a
"tonnage tax?" The cases of
State Tonnage
Tax, 12 Wall. 204;
Peete v.
Morgan, 19 Wall. 581;
Cannon v.
New Orleans, 20 Wall. 577;
Inman Steamship Co.
v. Tinker, 94 U. S. 238, are
all cited and relied on to show that this is a tonnage tax. But
Page 118 U. S. 463
in all these cases, the contribution exacted was measured by the
tonnage of the vessel in express terms, and the decision of the
court rested on that fact. In the first of them, it was admitted
that the statute of Alabama would have been valid as a tax on
property within the state but for the single fact that the amount
of it was measured by the tonnage of the vessel.
In
Peete's Case, the tax was for every vessel arriving
at a quarantine station, whether any service was rendered or not,
five dollars for the first hundred tons of her capacity and one and
a half cents for every additional ton, and this mode of measuring
the tax was held to make it a tonnage tax. The same fact was
presented in
Cannon v. New Orleans, though it was called a
"wharfage tax." The Court, however, held it to be a tax for the
privilege of landing in the port, whether the vessel used a wharf
or not, and for this reason, and because the amount of it was
measured by the vessel's tonnage, it was held void.
In the case of
Steamship v. Port
Wardens, 6 Wall. 31, the Court held a fee payable
to the port wardens by every vessel which entered the port, whether
it received any service or not, to be void as a regulation of
commerce and as contravening the policy of the prohibition of a
tonnage tax by the states. But in almost all the cases relied on by
the appellants, there was a reference to the tonnage capacity of
the vessel as the measure of the tax, and in all of them there was
an absence of any service rendered for which the contribution was a
compensation; generally they were held to be imposed for the
privilege of entering and anchoring in the port.
In the present case, we are of opinion that the fee complained
of is not a tonnage tax; that in fact it is not a "tax" within the
true meaning of that word as used in the Constitution, but is a
compensation for a service rendered, as part of the quarantine
system of all countries, to the vessel which receives the
certificate that declares it free from further quarantine
requirements.
Is the law under consideration void as a regulation of commerce?
Undoubtedly it is, in some sense, a regulation of commerce. It
arrests a vessel on a voyage which may have been a long one. It may
affect commerce among the states when
Page 118 U. S. 464
the vessel is coming from some other state of the union than
Louisiana, and it may affect commerce with foreign nations when the
vessel arrested comes from a foreign port. This interruption of the
voyage may be for days or for weeks. It extends to the vessel, the
cargo, the officers and seamen, and the passengers. Insofar as it
provides a rule by which this power is exercised, it cannot be
denied that it regulates commerce. We do not think it necessary to
enter into the inquiry whether, notwithstanding this, it is to be
classed among those police powers which were retained by the states
as exclusively their own, and therefore not ceded to Congress, for
while it may be a police power in the sense that all provisions for
the health, comfort, and security of the citizens are police
regulations and an exercise of the police power, it has been said
more than once in this Court that even where such powers are so
exercised as to come within the domain of federal authority as
defined by the Constitution, the latter must prevail.
Gibbons v.
Ogden, 9 Wheat. 1,
22 U. S. 210;
Henderson v. The Mayor, 92 U. S. 272;
New Orleans Gas Co. v. Louisiana Light Co., 115
U. S. 661.
But it may be conceded that whenever Congress shall undertake to
provide for the commercial cities of the United States a general
system of quarantine, or shall confide the execution of the details
of such a system to a national Board of Health, or to local boards,
as may be found expedient, all state laws on the subject will be
abrogated at least so far as the two are inconsistent; but until
this is done, the laws of the state on the subject are valid. This
follows from two reasons:
1. The act of 1799, the main features of which are embodied in
Title LVIII of the Revised Statutes, clearly recognizes the
quarantine laws of the states, and requires of the officers of the
Treasury a conformity to their provisions in dealing with vessels
affected by the quarantine system. And this very clearly has
relation to laws created after the passage of that statute as well
as to those then in existence, and when, by the Act of April 29,
1878, 20 Stat. 37, certain powers in this direction were conferred
on the surgeon general of the marine hospital service, and consuls
and revenue officers were required to
Page 118 U. S. 465
contribute services in preventing the importation of disease, it
was provided that "there shall be no interference in any manner
with any quarantine laws or regulations as they now exist, or may
hereafter be adopted, under state laws," showing very clearly the
intention of Congress to adopt these laws, or to recognize the
power of the states to pass them.
2. But aside from this, quarantine laws belong to that class of
state legislation which, whether passed with intent to regulate
commerce or not, must be admitted to have that effect, and which
are valid until displaced or contravened by some legislation of
Congress. The matter is one in which the rules that should govern
it may in many respects be different in different localities, and
for that reason be better understood and more wisely established by
the local authorities. The practice which should control a
quarantine station on the Mississippi River, a hundred miles from
the sea, may be widely and wisely different from that which is best
for the harbor of New York. In this respect, the case falls within
the principle which governed the cases of
Willson v.
Blackbird Creek Marsh Co., 2 Pet. 245;
Cooley v. Board of
Wardens, 12 How. 299;
Gilman
v. Philadelphia, 3 Wall. 727;
Pound v.
Turck, 95 U. S. 462;
Hall v. De
Cuir, 95 U. S. 488;
Packet Co. v. Catlettsburg, 105
U. S. 562;
Transp. Co. v. Parkersburg,
107 U. S. 702;
Escanaba & Co. v. Chicago, 107 U.
S. 678.
This principle has been so often considered in this Court that
extended comment on it here is not needed. Quarantine laws are so
analogous in most of their features to pilotage laws in their
relation to commerce that no reason can be seen why the same
principle should not apply. In one of the latest of the cases cited
above, the Town of Catlettsburgh, on the Ohio River, had enacted
that no vessel should, without permission of the wharf master, land
at any other point on the bank of the river within the town than a
space designated by the ordinance. This Court said
"that, if this be a regulation of commerce under the power
conferred on Congress by the Constitution, that body has signally
failed to provide any such regulation. It belongs also, manifestly,
to that class of rules which, like pilotage and
Page 118 U. S. 466
some others, can be most wisely exercised by local authorities,
and in regard to which no general rules applicable alike to all
ports and landing places can be properly made. If a regulation of
commerce at all, it comes within that class in which the states may
prescribe rules until Congress assumes to do so."
For the period of nearly a century since the government was
organized, Congress has passed no quarantine law, nor any other law
to protect the inhabitants of the United States against the
invasion of contagious and infectious diseases from abroad, and
yet, during the early part of the present century, for many years,
the cities of the Atlantic coast, from Boston and New York to
Charleston, were devastated by the yellow fever. In later times,
the cholera has made similar invasions, and the yellow fever has
been unchecked in its fearful course in the southern cities, New
Orleans especially, for several generations. During all this time,
the Congress of the United States never attempted to exercise this
or any other power to protect the people from the ravages of these
dreadful diseases. No doubt they believed that the power to do this
belonged to the states, or, if it ever occurred to any of its
members that Congress might do something in that way, they probably
believed that what ought to be done could be better and more wisely
done by the authorities of the states who were familiar with the
matter.
But to be told now that the requirement of a vessel charged with
contagion, or just from an infected city, to submit to examination,
and pay the cost of it is forbidden by the Constitution because
only Congress can do that is a strong reproach upon the wisdom of a
hundred years past or an overstrained construction of the
Constitution.
It is said that the charge to the vessel for the officer's
service in examining her is not a necessary part of quarantine
system. It has always been held to be a part in all other countries
and in all quarantine stations in the United States. No reason is
perceived for selecting this item from the general system and
calling it a regulation of commerce, while the remainder is not. If
the arrest of the vessel, the detention of its passengers, the
cleansing process it is ordered to go through
Page 118 U. S. 467
with, are less important as regulations of commerce than the
exaction of the examination fee, it is not easily to be seen.
We think the proposition untenable.
There remains to be considered the objection that the law is
forbidden by paragraph six of section nine of the first article of
the Constitution, which declares that "no preference shall be given
by any regulation of commerce or revenue to the ports of one state
over those of another."
It is not readily perceived how this quarantine statute of
Louisiana, and particularly the fees of the quarantine officers, do
give such a preference. Are the ports of Louisiana given a
preference over ports of other states? Are the ports of any other
state given a preference over those of Louisiana? Or are the ports
of other states given a preference as among themselves. Nothing of
this is pointed out.
The eighth section of this first article of the Constitution is
devoted exclusively to defining the powers conferred on
Congress.
The ninth section, including the above paragraph, is in like
manner devoted to restraints upon the power of Congress and of the
national government, and the tenth section contains only restraints
upon the powers of the states, by declaring what they shall not do.
The most casual inspection shows this, and the clause of the
Constitution here relied on is not found among the restrictions of
the states, but among those imposed upon the federal government. As
the matter under discussion is the validity of the statute of
Louisiana, it is unaffected by the constitutional provision alluded
to. Woodbury, J., in
Passenger
Cases, 7 How. 541;
The Brig Wilson v. United
States, 1 Brock. 432;
Butler v. Hopper, 1 Wash.C.C.
499;
Pennsylvania v. Wheeling
Bridge Co., 18 How. 435;
Munn v. Illinois,
94 U. S.
135.
We see no error in the judgment of the Supreme Court of
Louisiana, and it is
Affirmed.