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Page:Harvard Law Review Volume 2.djvu/319

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posed. The law was, indeed, necessarily a regulation of commerce with foreign nations and among the several States, since it inter- rupted the voyage of vessels coming from^ other States. Neverthe- less, such legislation was permissible to the State, for (i) Congress had expressly recognized the power of the States to enact quaran- tine laws,^ and (2) such laws belong to the class of local regula- tions which are valid until displaced, or contravened by congres- sional legislation. The subject of quarantine requires rules varying with the locality, and so falls within the rule established by the closely analogous case of Cooley v. Port Wardens.

The position taken by the court seems a strong one, although it may not be altogether clear that the subject of quarantine does not m fact admit of a national, uniform plan or system of regula- tion. At least it may be said that the States have power to pass such regulation because the power of Congress to regulate com- merce has remained upon the subject **in its dormant state," for there is express legislation by Congress to show that it has never intended to take away the regulation of that subject from the States. In addition to the cases already cited, there are decisions of the Supreme Courts of Missouri ^ and Massachusetts affirming the constitutionality of quarantine laws. In the Massachusetts case a regulation was held constitutional which required that all rags arriving from any foreign port, before being discharged, should be disinfected in a manner satisfactory to the Board of Health, at the expense of the owner.^ Another ground upon which to sustain such a law as the one just referred to is suggested by the court in Bowman v, Chicago & N. W. Ry. Co., just cited, in order to avoid the argument from analogy used by the dissenting judges. It is said that a State may exclude such articles as infected rags, diseased cattle, or decayed meat, because " such articles are not merchantable. They are not legitimate subjects of trade and commerce. They may be rightly outlawed as intrinsically and directly the immediate sources and cause of destruction to human health and life." It may be asked. Who is to determine when a given article is ** merchantable," or a "legitimate subject of trade and commerce" } Under the court's decision, the States cannot

1 U. S. Rev. Stat., Tit. Iviii.

  • City of St. Louis v. McCoy, 18 Mo. 238 (1853); s. c. 19 Mo. 13.

•Train v, Boston Disinfecting Co., 144 Mass. 523 (1887). Sec, also, Bowman z/. Chicago & N. W. Ry. Co., 8 Sup. Ct. Rep. 689, 700; s. c. 125 U. S. 465.