The law of Louisiana under which the Board of Health exerted the
authority complained of in this case is found in section 8 of Act
192 of 1898. The Supreme Court of Louisiana, interpreting this
statute, held that it empowered the board to exclude healthy
persons from a locality infested with a contagious or infectious
disease, and that this power was intended to apply as well to
persons seeking to enter the infected place, whether they came from
without or within the state.
Held: that this empowered the
hoard to exclude healthy persons from a locality infested with a
contagious or infectious disease, and that the power was intended
to apply as well to persons seeking to enter the infected place,
whether they came from without or within the state.
This action was commenced in the state court against the Board
of Health of the State of Louisiana and three persons who were
members of said board, and whom it was sought to hold individually
responsible for damages alleged to have been suffered from the
enforcement of a resolution adopted by the board upon the theory
that the resolution referred to was
ultra vires, and hence
the members of the board who voted for it
Page 186 U. S. 381
were personally liable for any damages occasioned by the
enforcement of the resolution. The board was thus described in the
petition:
"That the defendant the state Board of Health was a body created
by Act No. 192 of the General Assembly of the State of Louisiana of
the year 1898, with power to sue and be sued, domiciled in this
city (the City of New Orleans), and composed of seven members,
whose duty it was, by the provisions of said act, to protect and
preserve the public health by preparing and promulgating a sanitary
code for the State of Louisiana, by providing for the general
sanitation of the state, and with authority to regulate infectious
and contagious diseases and to prescribe a maritime and land
quarantine against places infected with such diseases."
It was asserted that the plaintiff, a corporation created by and
existing under the laws of the Republic of France and a citizen of
said Republic, on or about September 2, 1898, caused its steamship
Britannia to be cleared from the ports of Marseilles,
France, and Palermo, Italy, for New Orleans with a cargo of
merchandise and with about 408 passengers, some of whom were
citizens of the United States returning home, and others who were
seeking homes in the United States, and who intended to settle in
the State of Louisiana or adjoining states, and that all the
passengers referred to at the time of their sailing were free from
infectious or contagious diseases. It was further averred that, on
September 29, 1898, the vessel arrived at the quarantine station
some distance below the City of New Orleans, was there regularly
inspected, and was found, both as to the passengers and cargo, to
be free from any infectious or contagious disease, and accordingly
was given a clean bill of health, whereby the ship became entitled
to proceed to New Orleans and land her passengers and discharge her
cargo. This, however, it was asserted she was not permitted to do,
because, on the date last mentioned at a meeting held by the Board
of Health, the following resolution was adopted:
"
Resolved, That hereafter in the case of any town,
city, or parish of Louisiana being declared in quarantine, no body
or bodies of people, immigrants, soldiers, or others shall be
allowed
Page 186 U. S. 382
to enter said town, city, or parish so long as said quarantine
shall exist, and that the president of the board shall enforce this
resolution."
It was charged that, in order to enforce this resolution, the
president of the Board of Health, who was one of the individual
defendants, instructed the quarantine officer to detain the
Britannia at the quarantine station, and the president of
the board addressed to the agent of the steamship the following
communication explanatory of the detention of the vessel:
"Referring to the detention of the
S.S. Britannia at
the Mississippi River quarantine station, with 408 Italian
immigrants on board, I have to inform you that, under the
provisions of the new State Board of Health law, section 8, of
which I enclose a marked copy, this board has adopted a resolution
forbidding the landing of any body of people in any town, city, or
parish in quarantine. Under this resolution, the immigrants now on
board the
Britannia cannot be landed in any of the
following parishes of Louisiana, namely: Orleans, St. Bernard,
Jefferson (right bank), St. Tammany, Plaquemines, St. Charles, or
St. John. You will therefore govern yourselves accordingly."
The president of the Board of Health, it was alleged, moreover
notified that agent of the ship that, if an attempt was made to
land the passengers at any place contiguous to New Orleans, such
place not being in quarantine, a quarantine against such place
would be declared, and thus the landing be prevented.
It was averred that, while the resolution of the Board of Health
purported on its face to be general in its operation, in truth it
was passed with the sole object of preventing the landing of the
passengers from the
Britannia, and this was demonstrated
because no attempt was made by the Board of Health to enforce the
provisions of the resolution against immigrants from Italy coming
into the United States via the port of New York and thence reaching
New Orleans by rail, and that, after the promulgation of said
resolution "more than 200 such persons varying in groups of 30 to
100 in number, have from time to time been permitted to enter said
city." It was averred that the action of the board was not
authorized by the state
Page 186 U. S. 383
law, and if it was, such law was void because repugnant to the
provision of the Constitution of the United States conferring upon
Congress power "to regulate commerce with foreign nations, and
among the several states and with the Indian tribes." Averring that
damage had been already entailed to the extent of $2,500, for which
not only the board, but its members who voted for the resolution,
were liable, and reserving the right to claim such future damage as
might be entailed by the further enforcement of the resolution, the
petition asked for an injunction restraining the enforcement of the
resolution in question, and prayed judgment against the board and
the members named for $2,500
in solido.
The court declined to allow a preliminary restraining order, and
upon a hearing on a rule to show cause, the injunction was refused.
The order of the Board of Health which was complained of continued,
therefore, to be enforced against the ship. Subsequently the
plaintiff filed a supplemental and amended petition. It was
reiterated that the immigrant passengers on board the
Britannia were free from disease when they shipped and at
the time of their arrival, and, in addition, it was alleged that
the steamer with the immigrants on board had sailed from her port
of departure "prior to the declaration by said Board of Health of
the existence of any infectious disease in the City of New
Orleans." It was alleged that, in consequence of the insistence of
the Board of Health and its members in enforcing the illegal order
refusing to allow the landing of the immigrant passengers, the
steamer had been obliged to proceed to Pensacola, Florida, where
they were landed, and then the steamer returned to New Orleans for
the purpose of discharging cargo. The damage resulting was averred
to be $8,500, besides the $2,500 previously claimed, and a judgment
for this amount, in addition to the previous sum, was also asked
in solido against the board and the members thereof, who
were individually made defendants. It was, moreover, averred that
the action of the board was
"in violation of the laws of the United States, and the rules
and regulations made in pursuance thereof, relating to quarantine
and immigration from foreign countries into ports of the United
States, and especially Acts of Congress approved
Page 186 U. S. 384
February 15, 1893, and Acts of Congress of March the 3d, 1893,
August the 3d, 1882, and June the 26th, 1884, and the rules and
regulations made in pursuance thereof, and of the treaties now
existing between the United States, on the one part, and the
Kingdom of Italy and the Republic of France, on the other
part."
The defendants filed a peremptory exception of no cause of
action, which was sustained by the trial court, and the suit was
therefore dismissed. On appeal to the Supreme Court of the State of
Louisiana, the judgment of the trial court was affirmed. 51
La.Ann.
MR. JUSTICE WHITE, after making the foregoing statement,
delivered the opinion of the Court.
The law of Louisiana, under which the Board of Health exerted
the authority which is complained of, is found in section 8 of Act
No.192, enacted in 1898. The portion of the section which is
essential is as follows, the provision which is more directly
pertinent to the case in hand being italicized:
"In case that any parish, town, or city, or any portion thereof,
shall become infected with any contagious or infectious disease to
such an extent as to threaten the spread of such disease to the
other portions of the state, the State Board of Health shall issue
its proclamation declaring the facts and ordering it in quarantine,
and shall order the local boards of health in other parishes,
towns, and cities to quarantine against said locality, and shall
establish and promulgate the rules and regulations, terms and
conditions on which intercourse with said infected locality shall
be permitted, and shall issue to the other local sanitary
authorities instructions as to the measures adopted in quarantining
against persons, goods, or other property coming from said infected
localities, and these rules and regulations,
Page 186 U. S. 385
terms and conditions shall be observed and obeyed by all other
health authorities, provided that should any other of the
noninfected portion of the state desire to add to the regulations
and rules, terms and conditions already imposed by the state board,
they do so on the approval of the State Board of Health.
The
State Board of Health may, in its discretion, prohibit the
introduction into any infected portion of the state, persons
acclimated, unacclimated, or said to be immune when in its judgment
the introduction of such persons would add to or increase the
prevalence of the disease. The State Board of Health shall
render the local boards of health all the assistance in their power
and which the condition of their finances will permit."
The Supreme Court of the State of Louisiana, interpreting this
statute, held that it empowered the board to exclude healthy
persons from a locality infested with a contagious or infectious
disease, and that this power was intended to apply as well to
persons seeking to enter the infected place, whether they came from
without or from within the state. The court said:
"The law does not limit the board to prohibiting the
introduction of persons from one portion of the state to another
and an infected portion of the state, but evidently looked as well
to the prohibition of the introduction of persons from points
outside of the state into any infected portion of the state. As the
object in view would be 'to accomplish the subsidence and
suppression of the infectious and contagious diseases, and to
prevent the spread of the same,' it would be difficult to see why
parties from outside of the state should be permitted to enter into
infected places, while those from the different parishes should be
prevented from holding intercourse with each other."
"The object in view was to keep down as far as possible the
number of persons to be brought within danger of contagion or
infection, and by means of this reduction to accomplish the
subsidence and suppression of the disease and the spread of the
same."
"The particular places from which the parties who were to be
prohibited from entering the infected district or districts came
could have no possible influence upon the attainment of the result
sought to be attained. "
Page 186 U. S. 386
"It would make no possible difference whether this 'added fuel'
sought to be excluded should come from Louisiana, New York, or
Europe."
Referring to past conditions and the public dangers which had
arisen from them, the evil which the statute of 1898 was intended
to remedy was pointed out as follows:
"During the fall of 1897, and during the existence of an
epidemic, a vessel arrived in the Mississippi River with immigrants
aboard under conditions similar to those under which the
Britannia reached the same stream in 1898."
"The excited public discussions at the time as to the right of
the state board, under the then existing law, to prevent the
landing of the immigrants and as to its duty in the premises were
so extended as to authorize us to take judicial notice of the fact,
and in our opinion the clause in the present act which covers that
precise matter was inserted therein for the express purpose of
placing the particular question outside of the range of
controversy."
"For a number of years past, immigrants have been coming into
New Orleans in the autumn from Italy."
"There was a probability when the General Assembly met in 1898
that the epidemic of 1897 might be repeated, and a great
probability that immigrants would seek to enter, as they had done
the year before, to the great danger not only of the people of
Louisiana, but of the immigrants themselves."
"Independently of this, there was great danger to be apprehended
from the increasing intercourse between New Orleans and the West
India islands in consequence of a war with Spain."
"It was to ward off these dangers that this particular provision
was inserted in the act of 1898."
And, by implication from the reasoning just referred to, the
existence of the conditions rendering it necessary to call the
power into play in the case before it was recognized. Thus
construing the statute, the state court held that it was not
repugnant to the Constitution of the United States and was not in
conflict with any law or treaty of the United States. These latter
considerations present the questions which arise for our decision.
All the assignments of error relied upon to show the
Page 186 U. S. 387
invalidity of the statute of the State of Louisiana, and hence
the illegality of the action of the Board of Health from the point
of view of federal considerations, are in the argument at bar
summarized in four propositions. We shall consider them separately,
and thus dispose of the case. In doing so, however, as the first
and second contentions both rest upon the assertion that the
statute violates the Constitution of the United States, we shall
treat them together.
"First. The statute drawn in question, on its face and as
construed and applied, is void for the reason that it is in
violation of Article I, Section 3, paragraph 8 of the Constitution
of the United States, inasmuch as it vests authority in the State
Board of Health, in its discretion, to interfere with or prohibit
interstate and foreign commerce."
"Second. The statute is void for inasmuch as it is in conflict
with Section 1 of the Fourteenth Article of Amendment to the
Constitution of the United States, in that it deprives the
plaintiff of its liberty and property without due process of law,
and denies to it the equal protection of the law."
That from an early day the power of the states to enact and
enforce quarantine laws for the safety and the protection of the
health of their inhabitants has been recognized by Congress is
beyond question. That until Congress has exercised its power on the
subject, such state quarantine laws and state laws for the purpose
of preventing, eradicating, or controlling the spread of contagious
or infectious diseases, are not repugnant to the Constitution of
the United States although their operation affects interstate or
foreign commerce is not an open question. The doctrine was
elaborately examined and stated in
Morgan Steamship Company v.
Louisiana Board of Health, 118 U. S. 455.
That case involved determining whether a quarantine law enacted by
the State of Louisiana was repugnant to the commerce clause of the
Constitution because of its necessary effect upon interstate and
foreign commerce. The Court said:
"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 186 U. S. 388
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. New York, 92 U. S.
259,
92 U. S. 272;
New Orleans
Gas Co. v. Louisiana Light Co., 115 U. S.
650,
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 contribute
Page 186 U. S. 389
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."
Again, in
Louisiana v. Texas, 176 U. S.
1,
176 U. S. 21, the
court was called upon to consider a quarantine law of the State of
Texas which, by its terms, was applicable to and was enforced as to
both interstate and foreign commerce. After referring approvingly
to the case which we have above cited, the Court, speaking through
MR. CHIEF JUSTICE FULLER, said:
"It is not charged that this statute is invalid, nor could it be
if tested by its terms. While it is true that the power vested in
Congress to regulate commerce among the states is a power complete
in itself, acknowledging no limitations other than those prescribed
in the Constitution, and that, where the action of the states in
the exercise of their reserve powers comes into collision with it,
the latter must give way, yet it is also true that quarantine laws
belong to that class of state legislation which is valid until
displaced by Congress, and that such legislation has been expressly
recognized by the laws of the United States almost from the
beginning of the government."
Further, in calling attention to the fact, as remarked by the
Court in
Morgan Steamship Company v. Louisiana Board of Health,
supra, that in the nature of things, quarantine laws and laws
relating to public health must necessarily vary with the different
localities of the country, it was said:
"Hence, even if Congress had remained silent on the subject, it
would not have followed that the exercise of the police power of
the state in this regard, although necessarily operating on
interstate commerce, would be therefore invalid. Although, from the
nature and subjects of the power of regulating commerce,
Page 186 U. S. 390
it must be ordinarily exercised by the national government
exclusively, this has not been held to be so where, in relation to
the particular subject matter, different rules might be suitable in
different localities. At the same time, Congress could, by
affirmative action, displace the local laws, substitute laws of its
own, and thus correct any unjustifiable and oppressive exercise of
power by state legislation."
Despite these conclusive adjudications, it is earnestly insisted
in the argument at bar that, by a correct appreciation of all the
decisions of this Court on the subject, the rule will be discovered
to be that the states may enact quarantine or other health laws for
the protection of their inhabitants, but that such laws, if they
operate upon or directly affect interstate or foreign commerce, are
repugnant to the Constitution of the United States independently of
whether Congress has legislated on such subjects. To sustain this
contention, a most copious reference is made to many cases decided
by this Court where the nature and extent of the power of Congress
to regulate commerce was considered and the validity of state
legislation asserted to be repugnant to such power was passed upon.
To analyze and review the numerous cases referred to in order to
point out their want of relation to the question in hand would
involve in effect a review of the whole subject of the power of
Congress to regulate commerce in every possible aspect, and an
analysis of practically the greater body of cases which have in
this Court involved that serious and difficult subject from the
beginning. We shall not undertake to do so, but content ourselves
with saying, after duly considering the cases relied upon, that we
find them inapposite to the doctrine they are cited to sustain, and
hence, when they are correctly appreciated, none of them conflicts
with the settled rule announced by this Court in the cases to which
we have referred.
The confusion of thought which has given rise to the
misconception of the authorities relied upon in the argument, and
which has caused it to be supposed that they are apposite to the
case in hand, is well illustrated by the premise upon which the
proposition that the cited authorities are applicable rests. That
proposition is thus stated in the printed argument (italics in the
original):
Page 186 U. S. 391
"Turning now to the decisions of this Court, it will be found
that the basis upon which it has upheld the exclusion, inspection,
and quarantine laws of various states is that criminals, diseased
persons and things, and paupers are not legitimate subjects of
commerce.
They may be attendant evils, but they are not
legitimate subjects of traffic and transportation, and therefore,
in their exclusion or detention, the state is not interfering with
legitimate commerce, which is the only kind entitled to
the protection of the Constitution."
But it must be at once observed that this erroneously states the
doctrine as concluded by the decisions of this Court previously
referred to, since the proposition ignores the fact that those
cases expressly and unequivocally hold that the health and
quarantine laws of the several states are not repugnant to the
Constitution of the United States, although they affect foreign and
domestic commerce, as in many cases they necessarily must do in
order to be efficacious, because until Congress has acted under the
authority conferred upon it by the Constitution, such state health
and quarantine laws producing such effect on legitimate interstate
commerce are not in conflict with the Constitution. True it is
that, in some of the cases relied on in the argument, it was held
that a state law absolutely prohibiting the introduction, under all
circumstances, of objects actually affected with disease, was valid
because such objects were not legitimate commerce. But this implies
no limitation on the power to regulate by health laws the subjects
of legitimate commerce. In other words, the power exists, until
Congress has acted, to incidentally regulate by health and
quarantine laws even although interstate and foreign commerce is
affected, and the power to absolutely prohibit additionally obtains
where the thing prohibited is not commerce, and hence not embraced
in either interstate or foreign commerce. True also, it was held in
some of the cases referred to by counsel that where the
introduction of a given article was absolutely prohibited by a
state law upon the asserted theory that the health of the
inhabitants would be aided by the enforcement of the prohibition,
it was decided that, as the article which it was thus sought to
prohibit was a well known article of commerce, and therefore
Page 186 U. S. 392
the legitimate subject of interstate commerce, it could not be
removed from that category by the prohibitive effect of state
legislation. But this case does not involve that question, since it
does not present the attempted exercise by the State of the power
to absolutely prohibit the introduction of an article of commerce,
but merely requires us to decide whether a state law which
regulates the introduction of persons and property into a district
infested with contagious or infections diseases is void because to
enforce such regulation will burden interstate and foreign commerce
and therefore violate the Constitution of the United States. It is
earnestly insisted that the statute whose constitutionality is
assailed is, on its face, not a regulation but an absolute
prohibition against interstate commerce, and it is sought to
sustain this contention by various suggestions as to the wrong
which may possibly arise from a perversion and an abuse by the
state authorities of the power which the statute confers. Thus it
is said what is an infectious and contagious disease is uncertain,
and involves a large number of maladies. How many cases of such
malady are essential to cause a place to be considered as infected
with them is left to the determination of the Board of Health. That
board, it is argued, may then arbitrarily, upon the existence of
one or more cases of any malady which it may deem to be infectious
or contagious, declare any given place in the state, or even the
whole State of Louisiana, infected and proceed to absolutely debar
all interstate or foreign commerce with the State of Louisiana.
True it is, as said in
Morgan v. Louisiana, ubi sup.:
"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. New York, 92 U. S.
259;
Chy Lung v. Freeman, 92 U. S.
275;
Cannon v. New Orleans, 20
Wall. 577."
But this implies that we are to consider the statute as enacted
and the natural results flowing from it. It does not import that we
are to hold a state statute unconstitutional by indulging in
Page 186 U. S. 393
conjecture as to every conceivable harm which may arise or wrong
which may be occasioned by the abuse of the lawful powers which a
statute confers. It will be time enough to consider a case of such
supposed abuse when it is presented for consideration. And it is
also to be borne in mind, as said by this Court in
Louisiana v.
Texas, 176 U. S. 1,
176 U. S. 22, if
any such wrong should be perpetrated,
"Congress could by affirmative action displace the local laws,
substitute laws of its own, and thus correct any unjustifiable and
oppressive exercise of power by state legislation."
And the views which we have previously expressed suffice to
dispose of the contention that the subjecting of the vessel of the
plaintiff in error to the restriction imposed by the quarantine and
health law of the state operated to deprive the defendant in error
of its property without due process of law, in violation of the
Fourteenth Amendment. It having been ascertained that the
regulation was lawfully adopted and enforced, the contention
demonstrates its own unsoundness, since, in the last analysis, it
reduces itself to the proposition that the effect of the Fourteenth
Amendment was to strip the government, whether state or national,
of all power to enact regulations protecting the health and safety
of the people, or, what is equivalent thereto, necessarily amounts
to saying that such laws, when lawfully enacted, cannot be enforced
against person or property without violating the Constitution. In
other words, that the lawful powers of government which the
Constitution has conferred may not be exerted without bringing
about a violation of the Constitution.
"Third. The statute as applied and construed is void for the
reason that it is in conflict with treaties between the United
States, on the one part, and the Republic of France and the Kingdom
of Italy, on the other part, guaranteeing certain rights,
privileges, and immunities to the citizens and subjects of said
countries."
Reliance is placed, to sustain this proposition on the
provisions of a treaty concluded with the Kingdom of Italy on
February 26, 1871; on the terms of a treaty with Great Britain of
July 3, 1815, as also a treaty between the United States and the
Kingdom of Greece concluded December 22, 1837, and one
concluded
Page 186 U. S. 394
with the Kingdom of Sweden and Norway on July 4, 1827. The
treaties of other countries than Italy are referred to upon the
theory that, as by the treaty concluded with France on April 30,
1803, by which Louisiana was acquired, it was provided that France
should be treated upon the footing of the most favored nation in
the ports of the ceded territory, therefore the treaties in
question made with other countries than France were applicable to
the plaintiff in error, a French subject.
Conceding
arguendo this latter proposition, and
therefore assuming that all the treaties relied on are applicable,
we think it clearly results from their context that they were not
intended to, and did not, deprive the government of the United
States of those powers necessarily inhering in it and essential to
the health and safety of its people. We say the United States
because if the treaties relied on have the effect claimed for them,
that effect would be equally as operative and conclusive against a
quarantine established by the government of the United States as it
would be against a state quarantine operating upon and affecting
foreign commerce by virtue of the inaction of Congress. Without
reviewing the text of all the treaties, we advert to the provisions
of the one made with Greece, which is principally relied upon. The
text of article XV of this treaty is the provision to which out
attention is directed, and it is reproduced in the margin.
[
Footnote 1]
Page 186 U. S. 395
It is apparent that it provides only the particular form of
document which shall be taken by a ship of the Kingdom of Greece
and reciprocally by those of the United States for the purpose of
establishing that infectious or contagious diseases did not exist
at the point of departure. But it is plain from the face of the
treaty that the provision as to the certificate was not intended to
abrogate the quarantine power, since the concluding section of the
article in question expressly subjects the vessel holding the
certificate to quarantine detention if, on its arrival, a general
quarantine had been established against all ships coming from the
port whence the vessel holding the certificate had sailed. In other
words, the treaty having provided the certificate and given it
effect under ordinary conditions, proceeds to subject the vessel
holding the certificate to quarantine, if, on its arrival, such
restriction had been established in consequence of infection deemed
to exist at the port of departure. Nothing in the text of the
treaty, we think, gives even color to the suggestion that it was
intended to deal with the exercise by the government of the United
States of its power to legislate for the safety and health of its
people or to render the exertion of such power nugatory by
exempting the vessels of the Kingdom of Greece, when coming to the
United States, from the operation of such laws. In other words, the
treaty was made subject to the enactment of such health laws as the
local conditions might evoke not paramount to them. Especially
where the restriction imposed upon the vessel is based not upon the
conditions existing at the port of departure, but upon the presence
of an infectious or contagious malady at the port of arrival within
the United States, which, in the nature of things, could not be
covered by the certificate relating to the State of the public
health at the port whence the ship had sailed.
"Fourth. The statute as applied is void for the reason that it
is in conflict with the laws of the United States relating to
foreign immigration into the United States."
In the argument at bar, this proposition embraces also the claim
that the statute is void because in conflict with the Act of
Congress of 1893 entitled "An Act Granting Additional Quarantine
Powers and Imposing Additional Duties upon the Marine
Page 186 U. S. 396
Hospital Service." 27 Stat. 449. And that it also is in conflict
with the rules and regulations adopted for the enforcement of both
the immigration laws and the quarantine law referred to.
The immigration acts to which the proposition relates are those
of March 3, 1875, of August 3, 1882, of June 26, 1884, of February
26, 1885, of February 23, 1887, and March 3, 1891, and the
regulations to enforce the same. Without undertaking to analyze the
provisions of these acts, it suffices to say that, after
scrutinizing them, we think they do not purport to abrogate the
quarantine laws of the several states, and that the safeguards
which they create and the regulations which they impose on the
introduction of immigrants are ancillary, and subject to such
quarantine laws. So far as the act of 1893 is concerned, it is
manifest that it did not contemplate the overthrow of the existing
state quarantine systems and the abrogation of the powers on the
subject of health and quarantine exercised by the states from the
beginning, because the enactment of state laws on these subjects
would, in particular instances, affect interstate and foreign
commerce. An extract from section 3 of the act, which we think
makes these conclusions obvious, is reproduced in the margin.
[
Footnote 2]
Page 186 U. S. 397
Nor do we find anything in the rules and regulations adopted by
the Secretary of the Treasury in execution of the power conferred
upon him by the act in question giving support to the contention
based upon them. It follows from what has been said that the
Supreme Court of Louisiana did not err in deciding that the act in
question was not repugnant to the Constitution of the United States
and was not in conflict with the acts of Congress or the treaties
made by the United States which were relied upon to show to the
contrary and its judgment is therefore affirmed.
[
Footnote 1]
"Article XV. It is agreed that vessels arriving directly from
the United States of America at a port within the dominions of His
Majesty the King of Greece, or from the Kingdom of Greece at a port
of the United States of America, and provided with a bill of health
granted by an officer having competent power to that effect at the
port whence such vessel shall have sailed, setting forth that no
malignant or contagious diseases prevailed in that port, shall be
subjected to no other quarantine than such as may be necessary for
the visit of the health officer of the port where such vessel shall
have arrived, after which said vessels shall be allowed immediately
to enter and unload their cargoes; Provided always, that there
shall be on board no person who, during the voyage, shall have been
attacked with any malignant or contagious disease, that such
vessels shall not, during the passage, have communicated with any
vessel liable itself to undergo a quarantine, and that the country
whence they came shall not at that time be so far infected or
suspected that, before their arrival, an ordinance had been issued
in consequence of which all vessels coming from that country should
be considered as suspected, and consequently subject to
quarantine."
[
Footnote 2]
"SEC. 3. That the Supervising Surgeon General of the Marine
Hospital Service shall, immediately after this act takes effect,
examine the quarantine regulations of all state and municipal
boards of health, and shall, under the direction of the Secretary
of the Treasury, cooperate with and aid state and municipal boards
of health in the execution and enforcement of the rules and
regulations of such boards and in the execution and enforcement of
the rules and regulations made by the Secretary of the Treasury, to
prevent the introduction of contagious or infectious diseases into
the United States from foreign countries, and into one state or
territory or the District of Columbia from another state or
territory or the District of Columbia, and all rules and
regulations made by the Secretary of the Treasury shall operate
uniformly and in no manner discriminate against any port or place,
and at such ports and places within the United States as have no
quarantine regulations under state or municipal authority, where
such regulations are, in the opinion of the Secretary of the
Treasury, necessary to prevent the introduction of contagious or
infectious diseases into the United States from foreign countries,
or into one state or territory or the District of Columbia from
another state or territory or the District of Columbia, and at such
ports and places within the United States where quarantine
regulations exist under the authority of the state or municipality
which, in the opinion of the Secretary of the Treasury, are not
sufficient to prevent the introduction of such diseases into the
United States or into one state or territory or the District of
Columbia from another state or territory or the District of
Columbia, the Secretary of the Treasury shall, if in his judgment
it is necessary and proper, make such additional rules and
regulations as are necessary to prevent the introduction of such
diseases into the United States from foreign countries, or into one
state or territory or the District of Columbia from another state
or territory or the District of Columbia, and when said rules and
regulations have been made they shall be promulgated by the
Secretary of the Treasury and enforced by the sanitary authorities
of the states and municipalities, where the state or municipal
health authorities will undertake to execute and enforce them; but
if the state or municipal authorities shall fail or refuse to
enforce said rules and regulations, the President shall execute and
enforce the same and adopt such measures as in his judgment shall
be necessary to prevent the introduction or spread of such
diseases, and may detail or appoint officers for that purpose. The
Secretary of the Treasury shall make such rules and regulations as
are necessary to be observed by vessels at the port of departure
and on the voyage, where such vessels sail from any foreign port or
place to any port or place in the United States, to secure the best
sanitary condition of such vessel, her cargo, passengers, and crew,
which shall be published and communicated to and enforced by the
consular officers of the United States."
MR. JUSTICE BROWN, with whom was MR. JUSTICE HARLAN,
dissenting:
The power of the several states, in the absence of legislation
by Congress on the subject, to establish quarantine regulations, to
prohibit the introduction into the State of persons infected
Page 186 U. S. 398
with disease or recently exposed to contagion, and to impose a
reasonable charge upon vessels subjected to examination at
quarantine stations is so well settled by repeated decisions of
this Court as to be no longer open to doubt. This case, however,
does not involve that question, but the broader one, whether, in
the assumed exercise of this power, the legislature may declare
certain portions of the state to be in quarantine, and prohibit the
entry therein of all persons whatsoever, whether coming from the
United States or foreign countries, from infected or uninfected
ports, whether the persons included are diseased or have recently
been exposed to contagion, or are perfectly sound and healthy, and
coming from ports in which there is no suspicion of contagious
diseases.
I have no doubt of the power to quarantine all vessels arriving
in the Mississippi from foreign ports for a sufficient length of
time to enable the health officers to determine whether there are
among her passengers any persons afflicted with a contagious
disease. But the State of Louisiana undertakes to do far more than
this. It authorizes the State Board of Health at its discretion,
to
"prohibit the introduction into any infected portion of the
state of persons acclimated, unacclimated, or said to be immune,
when in its judgment the introduction of said persons would add to
or increase the prevalence of the disease,"
and at its meeting on September 29, 1898, the Board of Health
adopted the following resolution:
"That hereafter, in the case of any town, city, or parish of
Louisiana being declared in quarantine, no body or bodies of
people, immigrants, soldiers, or others shall be allowed to enter
said town, city, or parish so long as said quarantine shall exist,
and that the president of the board shall enforce this
resolution."
In other words, the Board of Health is authorized and assumes to
prohibit in all portions of the state which it chooses to declare
in quarantine, the introduction or immigration of all persons from
outside the quarantine district, whether infected or uninfected,
sick or will, sound or unsound, feeble or healthy, and that too not
for the few days necessary to establish the sanitary status of such
persons, but for an indefinite and possibly
Page 186 U. S. 399
permanent period. I think this is not a necessary or proper
exercise of the police power, and falls within that numerous class
of cases which hold that states may not, in the assumed exercise of
police power, interfere with foreign or interstate commerce.
The only excuse offered for such a wholesale exclusion of
immigrants is, as stated by the supreme court,
"to keep down, as far as possible, the number of persons to be
brought within danger of contagion or infection, and by means of
this reduction to accomplish the subsidence and suppression of the
disease, and the spread of the same."
In other words, the excuse amounts to this: that the admission
even of healthy persons adds to the possibility of the contagion's
being communicated upon the principle of adding fuel to the flame.
It does not increase the danger of contagion by adding infected
persons to the population, since the bill avers that all the
immigrants were healthy and sound. All it could possibly do is to
increase the number of persons who might become ill if permitted to
be added to the population. This is a danger not to the population,
but to the immigrants. It seems to me that this is a possibility
too remote to justify the drastic measure of a total exclusion of
all classes of immigrants, and that the opinion of the Court is
directly in the teeth of
Railroad Company v. Husen,
95 U. S. 465,
wherein a state statute which prohibited the driving or conveying
of any Texas, Mexican, or Indian cattle into the state between
March 1 and November 1 in each year was held to be in conflict with
the commerce clause of the Constitution. Such statute was declared
to be more than a quarantine regulation, and not a legitimate
exercise of the police power of the state. Said Mr. Justice Strong,
page
95 U. S.
472:
"While we unhesitatingly admit that a state may pass sanitary
laws and laws for the protection of life, liberty, health, or
property within its borders; while it may prevent persons and
animals suffering under contagious or infectious diseases, or
convicts, etc., from entering the state; while, for the purpose of
self-protection, it may establish quarantine and reasonable
inspection laws -- it may not interfere with the transportation
into or through the state beyond what is absolutely necessary
Page 186 U. S. 400
for its self-protection. It may not, under the cover of exerting
its police powers, substantially prohibit or burden either foreign
or interstate commerce."
The statute was held to be a plain intrusion upon the exclusive
domain of Congress, that it was not a quarantine law, not an
inspection law, and was objectionable because it prohibited the
introduction of cattle no matter whether they may do an injury to
the inhabitants of a state or not,
"and if you do bring them in even for the purpose of carrying
them through the state without unloading them, you shall be subject
to extraordinary liabilities."
Cases covering the same principle are those of
State v.
Steamship Constitution, 42 Cal. 578, and
Bangor v.
Smith, 83 Me. 422.
I am also unable to concur in the construction given in the
opinion of the Court to the treaty stipulation with France and
other foreign powers. The treaty with France of 1803 provides that
"the ships of France shall be treated upon the footing of the most
favored nations in the ports above mentioned" of Louisiana. Article
15 of the treaty with Greece of December 22, 1837, set forth in the
opinion, provides that vessels arriving directly from the Kingdom
of Greece at any port of the United States of America
"and provided with a bill of health granted by an officer having
competent power to that effect at the port whence such vessel shall
have sailed setting forth that no malignant or contagious diseases
prevailed in that port shall be subjected to no other quarantine
than such as may be necessary for the visit of the health officer
of the port where such vessels shall have arrived, after which said
vessels shall be allowed immediately to enter and unload their
cargoes:
Provided always, That there shall be on board no
person who during the voyage shall have been attacked with any
malignant or contagious diseases, that such vessels shall not,
during their passage, have communicated with any vessel liable
itself to undergo a quarantine, and that the country whence they
came shall not at that time be so far infected or suspected that,
before their arrival, an ordinance had been issued in consequence
of which all vessels coming from that country should be considered
as suspected, and consequently subject to quarantine. "
Page 186 U. S. 401
If the law in question in Louisiana, excluding French ships from
all access to the port of New Orleans, be not a violation of the
provision of the treaty that vessels
"shall be subjected to no other quarantine than such as may be
necessary for the visit of the health officer of the port where
such vessels shall have arrived, after which said vessels shall be
allowed immediately to enter and unload their cargoes,"
I am unable to conceive a state of facts which would constitute
a violation of that provision. Necessary as efficient quarantine
laws are, I know of no authority in the states to enact such as are
in conflict with our treaties with foreign nations.