Dissenting Opinion: Field, J. was dismissed at the special term of the Supreme Court. On appeal to the General Term this order was reversed, and the case was taken to the Court of Appeals. There the claim was made that the legislature passed this act in the exercise of its police power; but the court said in answer: "Generally it is for the legislature to determine what laws and regulations are needed to protect the public health and secure the public comfort and safety; and while its measures are calculated, intended, convenient, and appropriate to accomplish these ends, the exercise of its discretion is not subject to review by the courts. But they must have some relation to these ends. Under the mere guise of police regulations, personal rights and private property cannot be arbitrarily invaded, and the determination of the legislature is not final and conclusive. If it passes an act ostensibly for the public health and thereby destroys or takes away the property of a citizen, and interferes with his personal liberty, then it is for the courts to scrutinize the act and see whether it really relates to and is convenient and appropriate to promote the public health. It matters not that the legislature may, in the title to the act, or in its body, declare that it is intended for the improvement of the public health. Such a declaration does not conclude the courts, and they must yet determine the fact declared and enforce the supreme law." And the court concluded an extended consideration of the subject by declaring that, when a health law is challenged in the courts as unconstitutional, on the ground that it arbitrarily interferes with personal liberty and private property without due process of law, the court must be able to see that it has in fact some relation to the public health, that the public health is the end aimed at, and that it is appropriate and adapted to that end; and as it could not see that the law in question forbidding the cigarmaker from plying his trade in his own room in the tenement house, when allowed to follow it elsewhere, was designed to promote the public health, it pronounced the law unconstitutional and void. If the courts could not in such cases examine into the real character of the act, but must accept the declaration of the legislature as conclusive, the most valued rights of the citizen would be subject Dissenting Opinion: Field, J. to the arbitrary control of a temporary majority of such bodies, instead of being protected by the guarantees of the Constitution. In the recent prohibition cases from Kansas this court, after stating that it belonged to the legislative department to determine primarily what measures are appropriate or needful for the protection of the public morals, the public health, or the public safety, added: "It does not at all follow that every statute enacted ostensibly for the promotion of these ends is to be accepted as a legitimate exertion of the police powers of the State. There are of necessity limits beyond which legislation cannot rightfully go. The courts are not bound by mere form, nor are they to be misled by mere pretences. They are at liberty-indeed, are under a solemn duty to look at the substance of things, whenever they enter upon the inquiry whether the legislature has transcended the limits of its authority. If, therefore, a statute purporting to have been enacted to protect the public health, the public morals, or the public safety has no real or substantial relation to those objects, or is a palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution." Mugler v. Kansas, 123 U. S. 623, 661. In Watertown v. Mayo, the Supreme Court of Massachusetts, speaking of the police power of the State, said: "The law will not allow rights of property to be invaded under the guise of a police regulation for the preservation of the health, or protection against a threatened nuisance; and when it appears that such is not the real object and purpose of the regulation the courts will interfere to protect the rights of citizens." 109 Mass. 315, 319. It would seem that under the constitutions of the States no legislature should be permitted, under the pretence of a police regulation, to encroach upon any of the just rights of the citizen intended to be secured thereby. Be this as it may, certain it is that no State can, under any pretence or guise whatever, impair any such rights of the citizen which the fundamental law of the United States has declared shall neither be destroyed nor abridged. Were this not so, the protection which the Constitution designed to Dissenting Opinion; Field, J. secure would be lost, and the rights of the citizen would be subject to the control of the state legislatures, which would in such matters be practically omnipotent. What greater invasion of the rights of the citizen can be conceived, than to prohibit him from producing an article of food, conceded to be healthy and nutritious, out of designated substances, in themselves free from any deleterious ingredients? The prohibition extends to the manufacture of an article of food out of any oleaginous substances, or compounds of the same, not produced from milk or cream, to take the place of butter or cheese. There are many oleaginous substances in the vegetable as well as the animal world, besides milk and cream, but out of none of them shall any citizen of the United States within the limits of Pennsylvania be permitted to produce such an article of food for public consumption. Only out of pure milk or cream shall that article be made, notwithstanding the vast means for its production furnished by the vegetable as well as by the animal kingdom. The full force of the doctrine asserted will be apparent if the extent is considered to which it may be applied. The prohibition may be extended to the manufacture and sale of other articles of food, of articles of raiment and fuel, and even of objects of convenience. Indeed, there is no fabric or product, the texture or ingredients of which the legislature may not prescribe by inhibiting the manufacture and sale of all similar articles not composed of the same materials. The answer to the second question is equally conclusive against the decision of the court. In prohibiting the sale of the article which had been manufactured by the defendant pursuant to the laws of the State, the legislature necessarily destroyed its mercantile value. If the article could not be used without injury to the health of the community, as would be the case perhaps if it had become diseased, its sale might not only be prohibited but the article itself might be destroyed. But that is not this case. Here the article was healthy and nutritious, in no respect injuriously affecting the health of any one. It was manufactured pursuant to the laws of the State. I do not, therefore, think the State could forbid Dissenting Opinion: Field, J. its sale or use; clearly not without compensation to the owner. Regulations of its sale and restraints against its improper use undoubtedly could be made, as they may be made with respect to all kinds of property; but the prohibition of its use and sale is nothing less than confiscation. As I said in Bartemeyer v. Iowa, 18 Wall. 129, 137, with reference to intoxicating liquors, so I say with reference to this property, I have no doubt of the power of the State to regulate its sale, when such regulation does not amount to the destruction of the right of property in it. "The right of property in an article involves the right to sell and dispose of such article as well as to use and enjoy it. Any act which declares that the owner shall neither sell it nor dispose of it, nor use and enjoy it, confiscates it, depriving him of his property without due process of law. Against such arbitrary legislation by any State the Fourteenth Amendment affords protection. But the prohibition of sale in any way or for any use is quite a different thing from a regulation of the sale or use so as to protect the health and morals of the community." The fault which I find with the opinion of the court on this head is that it ignores the distinction between regulation and prohibition. WALKER V. PENNSYLVANIA, No. 1303. Error to the Supreme Court of the State of Pennsylvania. Argued January 4, 1888. Decided April 9, 1888. MR. JUSTICE HARLAN delivered the opinion of the court. The questions presented in this case do not differ, in any material respect, from those determined in POWELL V. PennSYLVANIA, just decided. The principles announced in that case necessarily require an affirmance of the judgment below. Affirmed. MR. JUSTICE FIELD dissented. Mr. D. T. Watson and Mr. W. B. Rodgers for plaintiffs in error. Mr. Wayne McVeagh for defendant in error. Statement of the Case. MAHON v. JUSTICE. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF KENTUCKY. No. 1411. Argued April 23, 24, 1888. - Decided May 14, 1888. No mode is provided by the Constitution and laws of the United States by which a person, unlawfully abducted from one State to another, and held in the latter State upon process of law for an offence against the State, can be restored to the State from which he was abducted. There is no comity between the States by which a person held upon an indictment for a criminal offence in one State can be turned over to the authorities of another State, although abducted from the latter. A, being indicted in Kentucky for felony, escaped to West Virginia. While the governor of West Virginia was considering an application from the governor of Kentucky for his surrender as a fugitive from justice, he was forcibly abducted to Kentucky, and when there was seized by the Kentucky authorities under legal process, and put in jail and held to answer the indictment. Held, that he was not entitled to be discharged from custody under a writ of habeas corpus from the Circuit Court of the United States. THE Court stated the case as follows: On the 9th of February, 1888, the governor of West Virginia, on behalf of that State, presented to the District Court of the United States for the District of Kentucky a petition, representing that during the month of September, 1887, a requisition was made upon him as governor aforesaid, by the governor of Kentucky, for Plyant Mahon, alleged to have committed murder in the latter State, and to have fled from its justice, and to be then at large in West Virginia; that pending correspondence between the two governors, and the consideration of legal questions growing out of the requisition, and during the month of December, 1887, or January, 1888, the said Plyant Mahon, while residing in West Virginia, was, in violation of her laws, and of the Constitution and laws of the United States, and without warrant or other legal process, arrested by a body of armed men from Kentucky, and by force and against his will, conveyed out of the State of |