REPORT ON PROPOSITIONS RELATING TO YEL LOW FEVER, BY THE COMMITTEE OF THE AMERICAN PUBLIC HEALTH ASSOCIATION.

A committee consisting of Dr. J. S. Billings, United States Army, Dr. E. M. Snow, of Rhode Island, Dr. John Morris, of Maryland, and Dr. R. W. Mitchell, of Tennessee, was appointed to prepare propositions or questions relating to yellow fever, to serve as a basis for discussion in the body of the Association.

This committee divided its report into two parts. The first contained the following questions intended for discussion, not merely on the floor of the Association, but throughout the country, and with regard to which it was neither expected nor considered desirable that the Association should then as a body express an opinion.

These questions were as follows:

1. In case of the occurrence of an epidemic of yellow fever in a community unprotected by previous attacks, how are the well to be disposed of, and what organization and measures are desirable to afford relief?

2. When should yellow fever be declared epidemic in a community?

3. Can yellow fever be transmitted by personal contagion independent of clothing and fomites of every description?

4. Can yellow fever spread in a place which is and has been previously in a perfect sanitary condition?

5. Can any known disinfectants be relied on to arrest the progress of yellow fever in a city or village?

6. What are the best methods of disinfecting?

7. What influence has the daily thermometric, barometric, or hygrometric range, or both, in promoting or retarding the spread of yellow fever in a community?

8. Are any measures of personal prophylaxis of service?

9. Is it possible and desirable to establish such a maratime quarantine for the Southern Atlantic and Gulf coasts of the United States as is necessary to secure immunity from the importation of yellow fever?

10. Is it possible to secure such a quarantine without placing it under the control of the general government?

11. In case of the arrival of a vessel believed to be infected with yellow

fever, what course should be pursued with the passengers, the baggage and freight, and the ship?

In addition to these questions the committee submitted certain propositions to be voted on by the Association at the close of the discussion-simply to serve as a test of the prevailing opinion of those present. These propositions were as follows:

1. Yellow fever is a specific disease, not indigenous to or originating spontaneously in the United States, and its appearance in this this country is always due to a specific cause.

2. Quarantine established with such rigor and precision as to produce absolute non-intercourse will prevent the importation of the specific cause of yellow fever.

3. It is the duty of the general government to aid in the establishment of a practical and proper quarantine by all means in its power.

4. It is the duty of the general government to appoint a commission of experts to make a thorough investigation into the causes of yellow fever, and the best methods of preventing its introduction into this country, and to make such an appropriation as will permit of the securing the services of the best men and of the best means for carrying out such investigation,

5. That it is the duty of the general government to invite foreign nations to co-operate with it in the establishment of uniform and effective international quarantine regulations.

6. That whatever may be the practical value of quarantine, there is no doubt of the importance and value of internal sanitary measures in the prevention or modification of epidemic yellow fever, and that this Association strongly urges upon State and municipal authorities the great amount of responsibility which rests upon them on this account at times when no disease is prevalent or threatening.

All these propositions except the first were adopted by the Association, a submitted. The first one was modified so as to apply exclusively to the yellow fever epidemic of 1878, and was then adopted.

OPINION OF HON. J. RANDOLPH TUCKER, M. C., OF VIRGINIA, UPON THE CONSTITUTION

ALITY OF QUARANTINE LAWS.

Dr. J. L. Cabell:

LEXINGTON, VA., November 19, 1878.

MY DEAR SIR-In submitting my views, at the request of the Executive Committee of the American Public Health Association, upon the powers of the general government to prevent diseases in the States, I must, for want of time for full consideration, be brief, and avoid any elaborate discussion of the question. It is one which is delicate and difficult; and we must take care to reach no conclusion which, while seeming to do good in the relief of our country from the recurrence of the dreadful pestilence which has recently afflicted the South, may disturb the just equilibrium established by the Constitution between Federal and State power.

The States have undoubtedly reserved to themselves the power to protect the lives and health of their people. The power delegated to Congress "to regulate commerce with foreign nations, and among the several States," cannot be constitutionally exercised, if thereby the introduction of disease into any State is either licensed or permitted. Unless this reserved power of the State to protect its people by quarantine and other health laws be upheld in full force, the commercial regulations of Congress might fill the avenues of trade with disease and death.

The commercial power is inter-national and inter-State-external and federative in its nature-for the regulation of which a general government is best fitted. The health power is local, domestic, and internal in its nature; operates within the State, and guards the homes of its people; and is best exercised by the State governments. As long as Congress regulates commerce, including in this term, if you please, navigation, and the instruments, machinery, and agents of intercourse with foreigners and among the States, it is legitimate and constitutional. But when it transcends the barriers which the States have reared to protect the lives and health of their people, it is without authority and unconstitutional. No State could safely leave to the central government the health regulations of the places within its borders. If the States have any exclusive power, it is here-in the preservation of the health, physical and moral, of the homes of its citizens.

If the question be asked, Where is there any limit to the power of Congress over commerce, I answer, "In the terms of the Constitution itself," Com

such laws as are

No law can be

merce must be regulated by law. Congress can only pass necessary and proper" for the regulation of commerce. necessary, none can be proper, that is not, as Judge Story defines the word, "bona fide appropriate to that end," or which impairs one of the clearest of the domestic powers reserved to the States. No commercial regulation can be constitutional, therefore, which would abate in any degree the undoubted right of the State to preserve the lives and health of its people.

On this subject, the decisions of the Supreme Court are uniform, beginning with the case of Gibbons v. Ogden, 9 Wheaton, 1.

In that leading case, Marshall, Ch. Justice, speaking of the acts of Congress, which had recognized in their establishment of commercial regulations the quarantine laws of the States " as flowing from the acknowledged power of a State to provide for the health of its citizens," states the question with clearness and force in the following language:

"The acts of Congress, passed in 1796 and 1799, empowering and directing the officers of the general government to conform to and assist in the execution of the quarantine and health laws of a State, proceed, it is said, upon the idea that these laws are constitutional. It is undoubtedly true that they do proceed upon that idea; and the constitutionality of such laws has never, so far as we are informed, been denied. But they do not imply an acknowledgment that a State may rightfully regulate commerce with foreign nations, or among the States; for they do not imply that such laws are an exercise of that power, or enacted with a view to it. On the contrary, they are treated as quarantine and health laws, are so denominated in the acts of Congress, and are considered as flowing from the acknowledged power of a State to provide for the health of its citizens. But as it was apparent that some of the provisions made for this purpose, and in virtue of this power, might interfere with and be affected by the laws of the United States made for the regulation of commerce, Congress, in that spirit of harmony and conciliation which ought always to characterize the conduct of governments standing in the relation which that of the Union and those of the States bear to each other, has directed its officers to aid in the execution of these laws, and has, in some measure, adapted its own legislation to this object by making provisions in aid of those of the States. But in making these provisions, the opinion is unequivocally manifested that Congress may control the State laws, so far as it may be necessary to control them, for the regulation of commerce."

In another part of the same opinion, the great Chief Justice speaks of "quarantine laws, health laws of every description," as 'component parts of an immense mass of legislation," "not surrendered to a general government, all of which can be most advantageously exercised by the States themselves." And this is quoted with the sanction of the same court in the case of Gilman v. Philadelphia, 3 Wallace, 726, decided in 1865.

It is true that in some of the late cases it has been hinted by some of the judges of that court that the legislation on all such matters by Congress would be more satisfactory (see Henderson v. Mayer, 2 Otto, 259); but the question has never been before that court for decision, nor has any judicial sanction

been given to a departure from the doctrines stated by Chief Justice Marshall in the case of Gibbons v. Ogden.

And it is well to remember that Judge Marshall cannot be suspected of any strained interpretation of the Constitution in behalf of the reserved powers of the States. On the contrary, his opinions have always been considered as favoring a liberal construction of the Constitution in respect to the powers of the Federal government.

But in his definition of the boundary between the commercial powers of Congress and the health powers of the States, I think he was right—and I would not recede from the position he has sanctioned: that health laws are no parts of the commercial power, but are an acknowledged part of the reserved powers of the States; and that every commercial regulation of Congress must respect and defer to the health laws of each State, passed for the protection of the citizen from disease. To deny this absolute power to the States, and yield it to the general government, to be exercised or not at its pleasure and by its own methods, would not only be obnoxious to sound constitutional principles, but be perilous to the well-being of the people of the States.

But while I hold these views, I think we may find a practical solution of the question in the language of Judge Marshall :

You observe, he says, that Congress "has directed its officers to aid in the execution of these laws" (of the States), "and has, in some measure, adapted its own legislation to this object by making provisions in aid of those of the States." In other words, Congress should sustain the health laws of the States, and may make provisions in aid of them, but not against them, or contrary to their purpose.

As, therefore, Congress, in its commercial rules, has conformed to and assisted in the execution of the health laws of the States in previous legís lation, it should do so in all future acts; and there is no reason why it should not, in its commercial regulations, embody such provisions for vessels and other instruments of inter-national and inter-State intercourse as in its judgment would promote the ends the States have in view, in preventing the introduction and spread of disease. Such laws, though not "necessary" for regulating commerce, would be eminently "proper" (in the constitutional sense), because while they would be needful rules for commerce and for the good of the States, they would prevent the agencies of commerce, operating under Congressional sanction, from invading the reserved authority of the States, and cursing, with the scourge of pestilence, the people upon whom they should bestow the blessings of commercial prosperity.

If, therefore, your Association could induce the States to adopt some uniform system of health regulations, it would accomplish much good. Nor can I see why such a result is not probable. Then let Congress, in its commercial regulations, respect the health laws of the States, and wherein they seem deficient engraft upon the commercial rules it establishes such limitations upon trade as will conserve the health of the people by preventing the ingress or spread of disease. It is the privileges of commerce which create the danger to health. It is thus the power which grants these privileges that menaces