require that the corpses should not be disinterred or transported from place to place, except under extreme circumstances of exigency." 18 Alb. Law Jour. 488; 31 Legal Int. 268. The exposure of unburied human remains, or neglect to inter the same by the person on whom the duty is cast, is a misdemeanor at common law. See Rex v. Stewart, 12 Ad. & E. 773; Chapple v. Cooper, 13 Mes. & Wels. 252; Ambrose v. Kerrison, 10 Com. B. 776; Jenkins v. Tucker, 1 H. Black. 394; Willes, 536. And this is doubtless so, in part, at least, upon sanitary considerations generally recognized among enlightened nations.

We see nothing in the language of the act, in the surrounding circumstances, or in the nature of the subject-matter upon which the statute operates, to justify us in holding that the object of the legislature was to impose burdens on the commerce or intercourse between this country and China, rather than to provide wholesome sanitary regulations for the protection of our people. The statute is general, and operates wholly upon matters within the territoral jurisdiction of the state, and without discrimination as to remains to be removed to any considerable distance, whether within or without the state, and is within the principle of the case In re Rudolph, recently decided in the United States circuit court for Nevada, upon drummers' licenses. 10 Cent. Law Jour. 224; 2 FED. REP. 65. The exhumation and removal of the dead is not a matter of public indifference, harmless in itself, like the style of wearing the hair, as in the Queue Case; but it affects the public health, and its regulation is, like the regulation of slaughter-houses and other noxious pursuits, strictly within the police powers of the state. See Ex parte Shrader, 33 Cal. 286; Slaughter-House Cases, 16 Wall.

36.

In Gibbons vs. Ogden, 9 Wheat. 203, Mr. Chief Justice Marshall says: "But the inspection laws are said to be regulations of commerce, and are certainly recognized in the constitution as being passed in the exercise of a power remaining with the states. The object of inspection laws is to improve the quality of articles produced by the

labor of a country; to fit them for exportation; or it may be for domestic use. They act upon the subject before it be comes an article of foreign commerce, or of commerce among the states, and prepare it for that purpose. They form a portion of that immense mass of legislation which embraces everything within the territory of a state not surrendered to a general government, all of which can be most advantageously exercised by the states themselves. Inspection laws, quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of a state, and those which respect turnpike roads, ferries, etc., are component parts of this mass."

If, then, as claimed, the transportation of the remains of deceased persons to China is a part of foreign commerce, these supervising and inspection laws "act upon the subject before it becomes an article of foreign commerce," and while the remains are being "prepared for that purpose." They simply provide that the preparations of the remains for foreign transportation, while still within the state and under its jurisdiction, shall be made in such a manner as not to be detrimental to the public health.

The principles relating to sanitary laws recognized in City of New York v. Miln, 11 Pet. 102; Thorpe v. R. & B. R. Co. 27 Vt. 140; The Passenger Cases, 7 How. 283; Railroad Co. v. Huson, 95 U. S. 471, and numerous other cases, are broad enough to cover the provisions in question. In these respects this case differs materially from the Queue Case, reported in 5 Sawyer, 553, and is more like the case arising under the cubic air statute, which we held to be constiutional. It being within the constitutional power to regulate the disinterment and removal of the dead, and to provide officers to scrutinize and supervise the operation in order to secure a conformity to the laws, we see no reason why a fee cannot be charged to and collected from those who desire to exercise the privilege, to defray the expenses of the inspection and supervision. The fee is charged under the law, not for the transportation or for the privilege of carrying the remains out of the country, but to pay the expenses of super

vising their disinterment and due preparation for passing through the territory of the state, and through the streets of populous cities, either to other parts of the state or elsewhere, without endangering the health of the people.

For similar reasons the provision in question does not violate subdivision 2 of section 10, article 1, of the constitution, which provides that "no state shall, without the consent of congress, levy any imposts or duties on imports or exports, except what is absolutely necessary for its inspection laws." The case also seems to be within the terms of this exception. Besides, the remains of deceased persons are not "exports" within the meaning of the term as used in the constitution. The term refers only to those things which are property. There is no property in any just sense in the dead body of a human being. 18 Alb. L. Jour. 487; 17 Alb. L. Jour. 258; Pierce v. Pro. of Swan Point Cemetery, 14 Am. Rep. 667; 10 R. I. 227, and cases cited. There is no impost or duty on exports in any proper sense, or in the sense of the constitution. This provision of the constitution was intended to prevent discrimination in matters of trade.

There is no violation of the fourteenth amendment to the national constitution. There is no discrimination against or in favor of any class of residents. It operates upon aliens. of all nationalities and upon all citizens alike. It applies to all cases of remains to be removed beyond the boundaries of the county, whether to foreign countries, to other states, or to other parts of this state. And there are no restrictions upon disinterments and removals of Chinese dead to other places within the same county for burial not applicable to citizens and all other aliens. It may be that the large number of Chinese removals suggested the necessity for stringent supervision; but we see no reason to suppose that the act was not intended to operate upon all within its terms; and the testimony shows-if it is admissible to look at the testimony-that it is, in fact, enforced against all alike. But, whether enforced or not, the subject-matter, as we have seen, is a proper one for regulation; and if the act is not enforced. upon all alike, there is a gross neglect of duty on the part of

those appointed for this purpose under the law. If the provisions of the act affect a larger number of Chinese than of any other class, it is not on account of any discriminations made by the law, but only because under their customs there is a much larger number of disinterments and removals by them than by any others. In re Rudolph, supra, and cases cited.

There is nothing in the provision in question in conflict with article 4 of the Burlingame treaty, which provides that "Chinese subjects of the United States shall enjoy entire liberty of conscience, and shall be free from all disabilities or persecutions on account of their religious faith or worship." Conceding that the religious sentiment of the Chinese requires that they shall remove the remains of their deceased friends to China for final burial, there is nothing in the provision forbidding or unduly obstructing the performance of that rite or religious duty, and nothing that does not equally apply to other aliens and citizens. It is only provided that, in the performance of that duty, proper precautions shall be taken not to endanger the health of the people among whom they have elected to live, and have died and once been buried. The fee established is only to liquidate the portion of expense of supervision and inspection imposed upon the public resulting from their custom; and, like the other expenses of disin terment and removal, which the surviving friends voluntarily incur, is necessarily incident to their peculiar practice. The customs of Chinese in this respect renders the supervision necessary and proper; and we can perceive no impropriety in charging them with the expense incident to it. The amount of $10 may seem large, but it is charged alike to all, and is not so large as to justify us in holding that it was manifestly intended to obstruct the performance of the duty; and we do not understand that the amount is regarded as objectionable if the charge is otherwise legal. Besides, it may well be questioned whether the treaty-making power would extend to the protection of practices, under the guise of religious sentiment, deleterious to the public health or morals, or to a subject-matter within the acknowledged police

power of the state. See Reynolds v. United States, 98 U. S. R. 145, with respect to religious belief as affected by the first amendment to the national constitution. But, under the view we take, it is unnecessary to consider the question now. We are satisfied that the provisions of the act in question do not violate any provision of the national constitution or of the treaty with China, and that there is no ground for discharging the prisoner by this court.

Let the writ be discharged, and the prisoner remanded to the custody of the officer from whom he was taken.

WASHBURN . THE MIAMI VALLEY INS. Co. and others.

INSURANCE CONDITIONS IN POLICY-EXPLOSION.-Where a policy of insurance against loss by fire contains a condition that the insurance company shall not be liable for any loss or damage occasioned by explosion of any kind, unless fire ensues, and then for the loss and damage by fire only, and a fire originates in the insured premises which produces an explosion by which that property is destroyed, such destruction is a loss by fire within the meaning of the policy.

SAME-SAME-SAME.-An exception in a policy of fire insurance that the "company will not be liable for loss or damage occasioned by the explosion of a steam boiler, gunpowder, or any other explosive substance, except only such loss as shall result from fire that may ensue therefrom; nor shall the company be liable for any loss by such fire, unless privilege shall have been given in the policy to keep such articles," etc. Held, that this exception must be viewed in the light of the surrounding circumstances, and that, from the nature of the business of the plaintiff, the parties must have contemplated the presence in the structure insured of the explosive substance known as flour dust, and that, therefore, its presence was not within the terms of such exception. BAME-EXPLOSIVE SUBSTANCES INCIDENT TO BUSINESS CARRIED ON. Explosions produced incidentally from the manufacturing which the parties contemplate would be carried on in the building insured, and which are an inseparable or necessary result of the process of manufacture, are not within such exceptions.

These actions were founded upon policies of insurance against fire issued by the defendants to the plaintiff upon

*Prepared by Messrs. Florien Giauque and J. C. Harper, of Cincinnati,