reach. The various statutes relating to the writ have not been intended to detract from its force, but to add to its efficiency, has been held alike in State and in National courts."

What law or justice require in a particular case, is often an embarrassing question to the court or judicial officer before whom the petitioner is brought, was said by the Supreme Court in Ex parte Royal, but the same court held in Ex parte Lange' that "where a prisoner shows that he is held under a judgment of a Federal court, made without authority of law, the Supreme Court will, by writs of habeas corpus and certiorari, look into the record so far as to ascertain that fact, and if it is found to be so, will discharge the prisoner, and that the power of the courts of this country over their judgments, orders and decrees cannot be so used as to violate the guaranties of personal rights found in the common law and in the Constitutions of the States and the Union. In many cases already cited, and in the latest decisions under the Chinese Exclusion Acts, and the Geary Law, these principles have been applied to cases of detention, under police laws, and by Federal officers charged with their execution. It cannot be supposed that quarantine or health laws form an exception, and the appeal by habeas corpus from the arbitrary discretionary action of a health officer to the judicial discretion vested in judges of the United States still remains for protection against oppression, even though it be in the guise of sanitary measures or a quarantine. Reason must prevail, and in the language of the opinion in the Lange case, "there is no more sacred duty of a court than in a case properly before it, to maintain unimpaired those securities for the personal rights of the individual which have received for ages the sanction of the jurist and the statesman ; and in such cases no narrow or illiberal construction should be given to the words of the fundamental law in which they are embodied.” We have seen in other cases that an unreasonable construction of powers or duties conferred by law upon ministerial officers, will not be upheld by the courts, and that the letter of a statute is not to govern, wheu the effect is in violation of the spirit of the law, or the intention of the law-makers, and the presumption of the real purpose in view, which is necessarily conclusive, as in the Church of the Holy Trinity v. The United States cited in a previous chapter. The precedents there given

1 Ex parte Lange, 18 Wall. 178.

The Church of the Holy Trinity v. United States, 143 U. S. 457; see chap. XVII, p. 391, note 1; and see, also, Late Corp. of Latter Day Saints v. United States, 136 U.S. 1; as to the right of the sovereign government as parens patriae to supervise the acts of

of the interference of the courts in an unreasonable interpretation of a law are many and varied, both in this country and England, supported by the opinions of great jurists from which quotations are made in the record above mentioned. In a recent well-considered case the Court of Appeals in New York, Mr. Justice Peckham delivering the opinion, holds that where an act required to be performed by a public officer is of a public nature, in the execution of which the public is interested, its performance may be compelled by mandamus sued out upon the relation of any citizen having an interest, as one of the public, in the performance of the act," and says further that it is urged in the case before them, that because the defendants "have met and performed the duty of division and filed their certificate, such action is in its nature judicial, or any rate it is one which requires large discretion in its performanceand for these reasons it cannot be reviewed by the courts. Undoubtedly there is a discretion to be exercised in the division by the board, and with the exercise thereof, this court has as little inclination as right to interfere. By the action already taken the relators in these proceedings have been aggrieved. Mandamus is the only remedy in such a case. The court duly interferes to compel the performance (of defendant's duty). What they have done is utterly void and of no effect. We can only interfere so far as to direct them to come together and perform their duty, and make a constitutional division of their county." Such and other legal remedies are open to persons injured, and it would seem that unreasonable, arbitrary and unnecessary oppressive quarantine measures may be controlled, and health officers may be compelled, if necessary, to perform their duty in a lawful and constitutional way.

A wise moderation however has prevailed in the courts to prevent any interference that would militate against the great object of all quarantine measures, that of securing the safety of the population of the country or the district threatened by danger from pestilence or disThe duty and authority still remain with State administrations. to protect their territory, as will be seen in the case of the Minneapolis,1

ease.

public and charitable institutions and of other funds become bona vacantia or appro. priated to illegal purposes to cause them to be applied in a lawful manner; as to abuse of discretionary power, see chap. XV, p. 347, note 2; Baird v. Supervisors, 138

N. Y. 95.

1 Minn., St. P. & S. S. M. Ry. Co. v. Milner et al., U. S. Cir. Ct., W. D., Mich., N. D.,July 29, 1893, 57 Fed. R. 276; Mich. L., act of June 20, 1885, amended April 26, 1893; U. S. Laws, act of Feb. 15, 1893; Brown v. Maryland, 12 Wheat. 419-433 Crutcher v. Kentucky, 141 U. S. 47; License Cases, 5 How. 504-576.

St. P. & S. S. M. Ry. Co. v. Milner et al., decided in the United States Circuit Court of Michigan, July 29, 1893.

This was a bill brought by the railway company against the Michigan State Board of Health to restrain them from enforcing State quarantine regulations, and the hearing was before the United States District Judges Severens and Sage. Passengers on the Canadian Pacific railroad were detained at a point opposite Sault Ste. Marie, and prohibited from entering the State of Michigan, until they had undergone quarantine detention and their baggage had been disinfected as prescribed in the rules of the State Board of Health. The court says: "The motion for a preliminary injunction will be overruled for the following reasons: 1. In Brown v. Maryland Chief Justice Marshall recognized that the removal or destruction of infectious or unsound articles was undoubt. edly an exercise of the police power of the State, and an exception to the prohibition resulting from the exclusive power of Congress to regu late the operations of foreign and interstate commerce; and that laws of the United States expressly sanction the health laws of the several States. In the License cases, Chief Justice Taney declared that "it must be remembered that disease, pestilence and pauperism, are not subjects of commerce, although sometimes among the attendant evils. They are not things to be regulated and trafficked in, but to be prevented as far as human foresight or human means can guard against them." In Crutcher v. Kentucky, Justice Bradley referred to these cases with approval, and stated with great clearness and force the distinction between the exercise of its police power by a State, and an attempt to legislate upon matters of interstate or foreign commerce, which are exclusively within the power of the federal government. These authorities render it unnecessary to refer particularly to the cases cited for the complainant. It is sufficient to say that they all relate to State enactments concerning articles of commerce, and hence are not applicable here. Moreover, the Quarantine Act of Congress, approved February 15, 1893, expressly recognizes the validity of State laws, and in section 3 requires the supervising Surgeon-General of the Marine Hospital service to co-operate with and aid State and municipal Boards of Health in the execution and enforcement of their rules and regulations.

2. We find nothing in any existing treaty with Norway and Sweden in conflict with the institution or enforcement by any one or more of the States of this Union of quarantine regulations.

3. We do not deem it necessary to express an opinion whether the provision of the Michigan statute, making it a misdemeanor to violate

"the rules of the State Board of Health, adopted in pursuance of the act, is in conflict with the Constitution of Michigan, for we should not, even if we were of opinion that it is unconstitutional, undertake to issue an injunction against criminal prosecution by the State. That the legislature might authorize the board to adopt rules is, we think, beyond question. Such rules are essential to the proper enforcement of the law.

"4. As to the objection that passengers from non-infected countries and localities are detained, the answer is, that such detentions are, in the nature of the case, to a certain extent, unavoidable; and passengers from such countries and localties may have become properly subject to detention, by reason of having mingled with others who could communicate pestilence or disease to which they themselves had been exposed or subjected. An opportunity for examination and inspection is indispensable also.

"5. The objection that passengers who had certificates from United States inspectors were detained, is not tenable. The States may exercise their police power according to their own discretion, and by means of their own officials and methods. The inconvenience resulting to emigrants and travelers from being halted and subjected to examination and detention at State lines, is of trifling importance at a time when every effort is required, and is being put forth to prevent the introduction and spread of pestilential and communicable diseases. The costs and charges which are incurred in such quarantine inspection may lawfully be imposed on the railway company, as being incident to the business in which it is engaged. The costs of the motion will be taxed to the complainant."

CHAPTER XIX.

RECENT STATE POLICE LEGISLATION. •

State police legislation has at least kept pace with the national in the advance made in the last few years, but whether equally sustained, or still within its boundaries, it were difficult to judge. It is more varied and may be tried under two constitutions instead of one, that of the Union and that of the State. We have already noticed the anti-truck, labor, holiday, oleomargarine, game, railroad, elevators, buildings, health and liquor laws, and many others discussed in the preceding pages. But a wider range is necessary in the so-called "Stock-Killing Act" of Colorado, or if we are to be bound by the agency law, or the water-shed law, or the construction claimed of the quarantine law of New York State, or the so-called "Dispensary Act" in South Carolina.* An act was passed by the legislature of New York in 1893 to amend the Penal Code, making it a misdemeanor for any person to carry on or conduct a general mercantile or manufacturing business within the State, as agent or manager for another or others, who shall not within thirty days after the passage of the act, file a sworn statement verified by such agent and principal as to his agency. The effect upon com

1 Yick Wo v. Hopkins, 118 U. S. 356; Crowley v. Christensen, 137 U. S. 86; Budd v. State of New York, 143 U. S. 517.

See N. Y. Laws 1893, chap. 708; id., chap. 189; id., chap. 651, art. 7; South Carolina Statute of Dec. 24, 1892; on Agency Law, see editorial, N. Y. L. Journal, June 5, 1893, with heading, "An act for the oppression of agents;" as to the health law under a similar clause in the law of 1892, chap. 486; Young v. Flower, 22 N. Y. Supp. 352; as to S. Ca. law, Cantini v. Tillman, U. S. Cir. Ct., S. Ca., 54 Fed. R. 969. This "Dispensary Act" has been held unconstitutional by some of the South Carolina State Courts.

In an opinion rendered Dec. 18, 1893, the U. S. Sup. Ct. declined to pass upon the constitutionality of this law. In re Swan, Adv. Ops. No. 5, p. 209; 57 Fed. R. 485.

As to 'Stock Killing" acts, see Wadsworth v. Union P. R. R., 33 Pac. R. 514.

There was also a State law passed "to promote the safety of railway employees by compelling the equipment of freight cars with automatic couplers, chap. 544, N. Y. L. 1893.