Open main menu

Page:Harvard Law Review Volume 2.djvu/326

This page needs to be proofread.

3o8 ^^^ VARD LA W RB VIB W.

repeal of a quarantine regulation considered to be unjust. It was said by Mr. Webster, in his argument in Gibbons v, Ogden,^

    • While a health law is reasonable, it is a health law ; but if under

color of it enactments should be made for other purposes, such enactments might be void.** As is said by the Supreme Court of Massachusetts, in the case of Austin v. Murray,^ " The law will not allow the right of property to be invaded under the guise of a police regulation for the preservation of health, when it is manifest that such is not the object and purpose of the regula- tion.*' In that case the selectmen of the town of Charlestown had been authorized by statute to make regulations for the inter- ment of the dead, and to " establish the police of the burying- grounds." They made a by-law that no one should bring any dead body into the town for burial without the written consent of a majority of the selectmen. One of the grounds upon which the by-law was held void was that it was manifest that it was ** not a police regulation, made in good faith, for the preservation of the health.** This principle has been recently applied by the New York Court of Appeal, in the Matter of Application of Jacobs,^ holding unconstitutional a law prohibiting the manufact- ure of cigars in tenement-houses, as depriving persons of liberty and property in the guise of a police regulation. The doctrine was recently approved by the Supreme Court in Mugler z'. Kansas,* in an emphatic statement.^ Constitutional limitations cannot be evaded by adopting the guise of police regulations.

The question before the court in such a case seems to be much the same as the one whether in a given case a tax has been levied, or the right of eminent domain exercised for a public purpose. The rule in case of taxation is thus stated by Judge Cooley : ** Primarily, the determination, what is a public purpose, belongs to the Legislature, and its action is subject to no review or restraint so long as it is not manifestly colorable. All cases of doubt must be solved in favor of the validity of legislative action for the obvious reason that the question is legislative, and only

A 9 Wheat, i, 20 (1824). ' 33 Mass. 121, 126, (1834).

8 98 N. V. 98 (1885.) * 123 U. S. 623, 661 (1887) ;

  • » Dicta to the same effect will be found in State v. Fisher, 52 Mo. 174, 177 (1873);

Train v, Boston Disinfecting Co., 144 Mass. 523, 587 (1887) ; Powell v, Conunonwealth of Pennsylvania, 127 U. S. 678, 8 Sup. Ct. Rep. 992, April 9, 1888; s. c. 16 Wash. Law Rep. 272.