Open main menu

Page:Harvard Law Review Volume 2.djvu/321

This page needs to be proofread.


necessary lor executing its inspection laws/*^ The true answer to the question proposed is believed to be a generalization of the rule given by the Constitution. It is interesting to notice how near the language of the courts has unconsciously approached that of the Constitution. We shall be necessarily confined, in our inquiry, to analogous cases, for this question has not yet arisen in case of a quarantine law. It has been intimated, however, and can hardly be doubted, that although a State quarantine law may tax a vessel with the cost of inspection,^ it cannot constitutionally thus exact more than is necessary to defray quarantine expenses.* Such excessive fees would probably be treated as in conflict with the regulation of commerce by Congress under the rule estab- lished by Brown v, Maryland.* Of course the expression "abso- lutely necessary " is to be taken with a grain of salt, for in one sense no provision is absolutely necessary. Essential to the accomplishment of the purpose of the law seems to be the idea.

It was said by Mr. Justice McLean in the License Cases,^ *' To guard the health and safety of the community, the laws of a State may prohibit an importer from landing his goods, and may some- times authorize their destruction. But this exception to the operation of a general commercial law is limited to the existing exigency." The cases applying this rule are comparatively recent. One of the first is In re Ah Fong.^ A California statute provided for the inspection of alien immigrants, and prohibited the landing of any person who had been a pauper or was likely to become a public charge, any convicted criminal or lewd woman, unless a fee was paid or a penal bond given on behalf of the vessel to save harmless any State municipality from expense on their account. The plaintiff, a Chinese woman, being detained on board a vessel by order of the inspector, sued out a writ of habeas corpus before the United States Circuit. Court. Mr. Justice Field conceded that " the police power of the State may be exercised by precautionary measures against the increase of crime and pauperism, or the spread of infectious diseases But

^ Constitution, Art. i. sec. 10.

' Passenger Cases, 7 How. 283, 484 (1849) '* Morgan c. Louisiana, supra,

  • Passenger Cases, 7 How. 283, 570; Patterson's Federal Restraints on State Action,
  • 12 Wheat. 419 (1827).

» 5 How. 504,592(1847). •3 Sawyer, 144 (1874).