19 Mo. 13 (Mo. 1853), City of St. Louis v. Boffinger

Citation:19 Mo. 13
Opinion Judge:GAMBLE, Judge.
Party Name:CITY OF ST. LOUIS, Respondent, v. BOFFINGER, Appellant.
Attorney:F. M. Haight, for appellant. C. G. Mauro, for respondent.
Court:Supreme Court of Missouri
 
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Page 13

19 Mo. 13 (Mo. 1853)

CITY OF ST. LOUIS, Respondent,

v.

BOFFINGER, Appellant.

Supreme Court of Missouri.

October Term, 1853

1. The case of The City v. McCoy, 18 Mo. Rep. 238, affirmed.

Appeal from St. Louis Criminal Court.

The defendant was convicted and fined for a violation of the quarantine ordinance of the city of St. Louis, which is set out in full in the case of the City of St. Louis v. McCoy, 18 Mo. 239. He appealed to this court.

F. M. Haight, for appellant.

The power to regulate commerce is exclusively vested in congress. 9 Wheat. 204. 7 Howard, 283. The transportation of passengers is as much a branch of commerce as the transportation of merchandise. 7 Howard, 405. If this be so, can it be the subject of state or municipal regulation? Congress has regulated the number of passengers a vessel shall take, coming from a foreign port. A more recent act provides for the internal commerce between the States. The power claimed in this case for the city, cannot be sustained unless as a police or sanitaty regulation. It is evident that it has nothing to do with police. Nor can it be sustained as a sanitary regulation. Whether a law is a sanitary regulation is to be decided by the court in reference to its aims and objects. It is not for the city council to create the power by determining the exigency, or by declaring what may affect the public health. The exercise of the power must be under such circumstances that the court may see, on the face of the statute, that it is connected with the prevention or mitigation of disease. This cannot be done in this case. It may be assumed that the greater the number of persons confined in a given space, the greater will be the probability of disease among them. But this can furnish no ground for preventive legislation by a municipal corporation. If there is disease, then they may interpose. Again, this ordinance is a tax on commerce. Delay is a tax. 7 Howard, 404.

C. G. Mauro, for respondent.

OPINION

GAMBLE, Judge.

1. Although this case comes entirely within the decision made at the last term of this court, in the case of the City of St. Louis v. McCoy, it may be well again to state the principles upon which the decision rests.

Whatever exclusiveness may be claimed for the power to regulate commerce conferred upon congress by the constitution of the United States, it is conceded that the power exists in the different States to protect their own citizens against the introduction of diseases by the enactment of quarantine laws, although such laws will inevitably interfere to some extent...

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