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Page:Harvard Law Review Volume 2.djvu/328

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3IO

HAR VARD LA W RB VIE W,

while the person in quarantine is forcibly prevented from going to the only place to which he desires to go, from carrying his goods to the only point to which he chooses to take them, he is unre- stricted as to going or taking his goods anywhere else.^ An act prohibiting the manufacture or sale of substitutes for dairy butter, however wholesome, was held unconstitutional in New York, on the ground that the statute being clearly only a colorable police law, the makers of oleomargarine were deprived of their liberty without due process of law.^ The same view is expressed by Mr Justice Field, in Mann v, Illinois.^ " By the term * liberty,' as used in the provision [Fourteenth Amendment], something more is meant than mere freedom from physical restraint or the bounds of a prison. It means freedom to go where one may choose, and to act in such manner, not inconsistent with equal rights of others, as his judgment may dictate for the promotion of his happiness."* When the action of one becomes inconsistent with the equal rights of others, it is the province of police legislation to deter- mine.^ This idea has been paradoxically expressed as follows :

  • ' By the police power we understand a power vested in executive

officers of the government under certain circumstances to deprive a person of liberty or property without process of law.*'® Ac- cording to this view, the moment the quarantine regulation ceases to be a bon& fide exercise of i>olice power, it violates the Four- teenth Amendment by depriving a person of liberty or property without due process of law.

1 Compare Bird v, Jones, 7 Q. B. 742.

  • The People v. Marx, 99 N. Y. 377. See, also, Matter of the Application of Jacobs,

98 N. Y. 98 (1885). The decision in Sute v, Addington, 77 Mo. no (1882), and Powell V. Commonwealth, 114 Penn. St. 265 (1886), are not contra upon this point, for they proceed upon the ground that the law must be considered a bond fide police regula- tion for the prevention of fraud, such as, for example, an act prohibiting the sale of pure milk mixed with pure water. Commonwealth v, Waite, 11 All. 264 (1865). The Penn> sylvania decision has since been afhrmed by the Supreme Court, upon the ground that the court was unable to affirm that the legislation had no real or substantial relation to the protection of the public health, or the prevention of fraud. If such were not the case, however, it is intimated that the Fourteenth Amendment would be violated. Powell V, Commonwealth of Pennsylvania, 127 U. S. 678, 8 Sup. Ct. Rep. 992 (April 9, 1886); s. c. 16 Wash. Law Rep. 262.

«94U. S. 113, 142 (1876).

  • See, also, the Slaughter-House Cases, 16 Wall. 36, dissenting opinion of Bradley, J.,

at p. 122; Swayne, J., at p. 127.

« Mugler V, Kansas, 123 U. S. 623, 660 (1887).

  • 6 N. J. Law Journal, 135.