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Page:Harvard Law Review Volume 2.djvu/329

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It is conceived, however, that such a regulation may be held unconstitutional without resort to the doubtful, and, as the writer believes, strained, constitutional construction of the above view. In the case of Crandall v. State of Nevada,^ the Supreme Court held unconstitutional a statute of Nevada imposing a tax of one dollar upon every person transported out of the State by a carrier, upon the ground, amongst others, that it was one of the rights of citizens of the United States to have access to the seat of govern- ment, the ports of entry, and the various Federal offices and courts throughout the United States. As no constitutional principle works in isolation independently of others, it is improbable that a bond fida police regulation of a State would be treated as a violation of this right. Yet when the law, purporting to be for the protection of health, establishes a quarantine clearly for other purposes, it would seem to be no longer within the protection of the police power, and to become unconstitutional under the decision of Crandall v. State of Nevada, as "abridging the privi- lege or immunities of citizens of the United States," in violation of the Fourteenth Amendment.^ Such a law would also be, it is conceived, necessarily an unconstitutional regulation of commerce by a State. If, as we saw reason to think, a State cannot, even in the bond fida exercise of its police power, burden foreign or inter- state commerce to an extent greater than is absolutely necessary to accomplish the purpose of the law, a fortiori a State cannot regulate such commerce under the mere pretence of police legis- lation. Whatever may be thought of the rule in Railroad Co. v, Husen,^ it seems beyond question that a State cannot in the guise of police regulations impose burdens or restrictions which, as in case of quarantine laws, operate directly and immediately upon foreign or interstate commerce itself.*

The above considerations apply to quarantine regulations en- acted by the States as well as to those enacted by local or general boards of health, acting under powers conferred by the Legis- lature. In the latter case, however, there must be considered the additional element, in what terms the delegated powers are granted. It is surmised that such a board would seldom be found, upon a

1 6 Wall. 35 ( 1867) ; and sec Corfield v. Coryell, 4 Wash. C. Ct. 371, 381. « Sec Slaughter-Housc Cases* 16 Wall. 36, at p. 79 (1872).

« 95 U. S. 465 (1877).

  • Supra, p. 277.