lii!' »!:i i- l> THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW THE POLICE POWER PUBLIC POLICY AND CONSTITUTIOxNAL EIGHTS BY ERNST FREUND PROFESSOR OF JCRISPRUDEXCE AND PUBLIC LAW IN THE CXIVEESITV OF CHICAGO. CHICAGO CALLAGHAN & COMPAXY 1904 Copyright 1904 BY KHNST FHFX'ND Wf4 . » iTmi, T Mi 00^ C(t PREFACE The term police power, while in constant use and indis- pensable in the vocabulary of American constitutional law, has remained without authoritative or generally accepted definition. It is therefore proper to state at the outset, that the term will be employed in the following pages as meaning the power of promoting the public welfare by restraining and regulating the use of liberty and property. Under this defini- tion constitutional questions regarding civil and criminal jus- tice, taxation, and public improvements and services, are out- side of the scope of this treatise, the plan of which also excludes the administrative law of the police power, i. e., the common law and constitutional principles regarding the exe- cution and enforcement of police legislation, and the remedies against unlawful official action in the pretended exercise of the police power. The first part of the treatise develops the idea of the police power by assigning to it its place among governmental powers (chap. I) ; and by discussing its various methods of operation (chap. II) ; and a chapter is given to a summary of the relation of the federal government to the police power (chap. III). The main division of the treatise is dictated by the considera- tion that certain rights yield to the police power, while it respects and accommodates itself to others. The part entitled the Public "Welfare defines the conditions and interests which call for restraint or regulation. These are classified as pri- mary social interests and economic interests. The former constitute the undisputed field of the police power, in which state control is universally regarded as legitimate. These interests are peace and security from crime (chap. IV), public safety and health (chap. V), public order and comfort (chap. VI), and public morals (gambling, drink and vice, chapters VII, VIII, IX). The control of dependent classes is treated in connection with these interests (chap. X). The economic interests relating to the conditions of produc- tion and distribution of wealth constitute the debatable field 111 618541 j^. PREFACE. of the police power. The prevention of fraud (chap. XI) is generally conceded to be a legitimate function, but the pre- vention of oppression is frequently met by the assertion of a constitutional right of liberty of contract. The legislation against oppression deals with the protection of debtors (chap. XII » and of laborers (chap. XIII), and with combinations of labor (chap. XIV) and of capital (chap. XV). Closely con- n.'cted with the latter is the state control of corporations (chap. XVI), while the restraint of perpetuities (chap. XVII) pre- sents but few constitutional aspects. The important classes of business which require special state control by reason of natural monopoly or legal privileges, are tn-ated under the head of business affected with a public interest (chap. XVIII), while the limitations upon rights of property resulting chiefly from public easements or natural conditions are discussed under the head of qualified property (chap. XIX). A chapter on compulsory benefits (chap. XX), showing how far the individual may be compelled to act for his own benefit or that of limited groups, concludes this part of the treatise. , The third part, entitled fundamental rights under the police power, is naturally divided into three main subportions: liln-rty. property, and equality. Immunity from governmental restraint is generally conceded to the lilxTty of the body, and to the liberty of private con- duct, cla.ssed together as personal liberty (chap. XXI) ; our con.stitutions expressly guarantee religious and political liberty (chap. XXII); of the economic aspects of liberty (chap. XXI 1 1 . tlint of migration and settlement is fully recognised, whih' the freodom of contract jmkI of pursuit of livelihood has at h»'Ht an uncertain status. Thf huliject of property is practically identical v/ith that of V. .t.(i ritrhts. the protection of which under adverse claims of pul.hr policy forms one of the most difficult problems of con- Hlilulionni law. A chapter f)n appropriation, injury and de- ulnirtion (chap. XXIV) .lilTcreiitiates police power from rniinc-nt domain, regulation from taking, and useful property from danRoroiiH things. Retroactive legislation sacrificing Vf-nlcil rijfhts f., » change of legislative policy is discussed luuU'T the hen.lH of confiscatory regulation (chap. XXV) and public RranU and licenscH (chap. XXVI), and the chief his- PREFACE. y torical illustrations of the conflict of vested rights and public policy are reviewed under the head of social and economic reforms (chap. XXVII). The principle of equality (chap. XXVIII) constitutes a limitation upon the police power of equal importance with that of vested rights. It means that government shall neither im- pose particular burdens upon individuals or corporations to meet dangers for which they cannot in justice be held respons- ible (chap. XXIX), nor grant special privileges or monopolies (chap. XXX), and that all legislative discrimination should be justified by differences of status, act, or occupation, corre- sponding to the difference of legislative measures (chap. XXXI). The law of the police power is practically a growth of the last thirty or forty years, and much of it remains unsettled. There has, however, been a sufficient amount of judicial dis- cussion and decision to warrant the attempt to summarise the results so far reached. A work upon a subject which is still in a formative stage is necessarily constructive, and the writer must claim considerable independence in the classification and formulation of principles ; but it is hoped that the substance of the law as given in this treatise will be found to be a faithful and accurate presentation of the authorities. The author will be satisfied if he has succeeded in making some contribution to the correct understanding of a branch of the law which yields to no other in importance and interest. E. F. University of Chicago, January, 1904. CONTENTS. THE POLICE POWER. FIRST PART : NATURE AND GENERAL SCOPE OF THE POLICE POWER. CHAPTER I. GOVERNMENTAL POWERS AND PUBLIC POLICY. § 1. Division of governmental powers. § 2. The term "police." § 3. The term ' ' police power. ' ' A. The Police Power as a Means of Furthering the Public Welfare. §§ 4-2L Division of objects of government. Maintenance of national existence. Supply of ways and means. Maintenance of right and the redress of wrong. Civil and crim- inal justice. Public welfare or internal public policy. Scope of internal public policy and welfare. The primary social interests: safety, order and morals. Care and control of dependents. Economic interests. Non-material or ideal interests. Political interests. Relative attitude of the government toward the three classes of interests. Relation between private right and public welfare. The constitution as judicially enforceable law. Specific limitations upon police legislation. General limitations. Due process of law. Justice and judicial policy. B. The Police Power as a Power of Restraint and Compulsion. §§ 22-26. § 22. Corporate and moral capacity of the state. § 23. Corporate powers of state and individual rights. vii § 4. § 5. § 6. § 7. § 8, § 9. § 10. § 11. § 12. § 13. § 14. § 15, § 16, § 17, § 18, § 19, § 20, § 21 ^jjj CONTENTS. S 24. Power over licenses and privileges. § 25. The police power and other restraining powers. S 26. Police legislation and the criminal law. CHAPTEE II. METHODS OF THE POLICE POWER. § 27. Outline. S 2S. Restraint as distinguished from regulation and prohibition. Positive standards and Umitations. §§ 29-34. § 29. General principle. § 3(t. Imposed standards as compared with customary standards. 5 31. Regulations applied to innocuous conditions. S 32. Standards of articles of consumption. § 33. Regulation by municipal authority. i 34. Choice between measures of equal efficiency. Regulations to insure compliance with the law. §§ 35-57. § 35. Prevention through publicity. Licenses. §§ 36-39. i 36. In general. ( 37. License or occupation tax. I 38. Licen!«c as a police measure. I 39. High liconse as a method of restriction. 8 40. iJonds anf citizenship. i L'.io. Kn-ciirtm of conimorce. I 231. Lirrnno cases. I LTi'J. LciHy V. Hardin and the Wilson Act. I 233. The South Carolina Law. CHAPTER TX. PUDLIC MORALS (CoMtimud). VICE AND BRUTALITY. 1. Srxual lice. §§ 234-246. I 234. Piirpodo find Hcopc of police control. LoMciviousvciiH and oh«cenity. §§ 235-239. I 23't. I,«»wd nnd Innrivinun conduct. I 23fl, ()h«irivil. { J MS. i'cfldlcrH. { L'S'.t. .'^opo (if legislation. i L".'(i. Auctioiii'crH. I'J'.'I. Tnkcl broker.ige. I '• ' Miiiikrupt and firo naleo. { ift mili>fi nnH. Public inlereMt in prevention of fr;ni4. Intcrprctution of anti-trust acts. I 35.'). Constitutionality of anti-trust legislation. I 350. Discrimination between combinations for different purposes. CllAl'TEK XVI. CORPORATIONS. I 357. AMocintion nnd incorporation. I S.W, The right to iiicorpurafe as a license. I 3.'i9. Hporial rharters ami general incorporation laws. f ."WO Kmtrictions on corporate capacity. I 3fll, Tho rhnrtcr an n contract nnd rcservafion of legislative power. •• ■ r .,ji„n„ „f j|„, doctrine of the Dartmimth (College case. I ■' t ••ffert of Dartmouth <'ull<'ge dnlHion. 1 364. Compuliinry incorporation. Cll.M'TKlJ XVII. FUKEDOM OF rUOPFUTV I'ERrETT'TTTES. J.V. .. 1,. • --y. I ."WWi, I)< r tying up property. Civil luw. CO.XTEJNTS. 2:ix § 367. Common law. The rule against perpetuities. § 368. Mortmain legislation in England. § 369. Mortmain legislation in America. § 370. Perpetual rents. § 371. Long leases. CHAPTER XVIII. BUSINESS AFFECTED WITH A PUBLIC INTEREST. § 372. Statement of doctrine. § 373. Kinds of business and forms of control. Regulation of charges. §§ 374-385. § 374. English legislation. § 375. American legislation. § 376. Attitude of the courts. § 377. Justification by legal or virtual monopoly. § 378. Constitutionality in other cases. § 379. Earlier doctrine that reasonableness legislative question. § 380. Regulation not confiscation. § 381. Rates fixed by commission and due process. § 382. Rates fixed by legislature. § 383. Jurisdiction of federal courts. § 384. Difiiculties of judicial control. § 385. Judicial regulation. Bequiremejit of equal service. §§ 386-394. § 386. To what kind of business applicable. § 387. Equal and sufficient service. § 388. Grounds of requirement. § 389. Objects of discrimination. § 390. Legislation against discrimination, § 391. What constitutes unjust discrimination. § 392. Circumstances justifying discrimination. § 393. Discrimination allowed or prescribed by law. § 394. Discrimination forbidden though circumstances dissimilar. Requirements of particular arrangements in the interest of public con- venience. §§ 395-398. § 395. Particular arrangements not within common law duty of equal service. § 396. Cab and other privileges granted by railroad companies. § 397. Legislative requirements. § 398. Public convenience not ordinarily a ground of police control. Requirements and reductions in the interest of financial security. §§ 399-401. § 399. Banking and insurance. § 400. Grounds of control. § 401. Restriction of right to carry on business. ^^ CONTENTS. CHAPTER XIX. QUALIFIED PROPERTY. S 402. In general. Navigable waters and riparian rights. §§ 403-409. S 403. Title and easement of navigation. § 404. Land covered by water. § 405. Special grants. Commonwealth v. Alger. § 406. Establisbmeut of harbor lines. Effect on existing wharves. i 407. Obstructions under act of Sept. 19, 1890. 9 408. Easements of the riparian owners. i 409. Riparian land. Mill dam privileges. §§ 410-413. S 410. Legislation. 8 411. Theory of Massachusetts courts. 5 41-- Taxing for public use. 5 413. Other legislation authorizing the flooding of land. Natural water as qualified property. §§ 414-417. 8 414. Common law easements. 8 415. Doctrine of prior appropriation. 8 416. Subordination of right to beneficial purpose. 8 417. Constitutional recognition of doctrine. Game and fish. §§ 418-421. 8 418. Common law and legislation. 8 419. Constitutionality. I 4li0. Game and fi.sh laws and freedom of commerce. |4L'l. Property in dogs. Uagtc of natural ucalth. §§ 4l2L'-423. 8 4-J. Hnmo and fixh. Natural gas. I 4l.'3. Fort-lit prcHcrvation. Jlettrictionn on property in the interest of other owners. §§ 424-427. I 424. LanempntH of support. 1 425. Nutiirai walvrtt. I 426. Malirious creotions and private nuisances. 1427. Privato roads. CIIAI'TKU XX. COMPULSORY HENEFITS. I'rotwtion and bountien. I 4»'i*. Hcopo of poliro power. Comput$orj/ menMurca against improvidence. 55 430-437. ! • ^ -v lawn, I 4^1. ^t» I'll iirifta. CONTENTS. XXJ § 432, Compulsory insurance. § 433. Its constitutional aspect. § 434. American legislation providing insurance. § 435. Insurance in connection with registration of titles. §436. Teachers' pension funds. § 437. Compulsory insurance of workmen. Compulsory industry and improvement. §§ 438-439. § 438. Former English and colonial legislation. § 439. Constitutional aspect of such legislation. Compulsory joint improvements. §§ 440-444. § 440. Difference from cases before considered. § 441. Drainage and irrigation. § 442. Constitutional justification. § 443. ±^arty walls. § 444. Division fences. THIRD PART : FUNDAMENTAL RIGHTS UNDER THE POLICE POWER. FIRST : LIBERTY. CHAPTER XXI. PERSONAL LIBERTY. § 445. Different aspects of liberty. Note — The right to life. Liberty of the body. §§ 446-452. § 446. Cases of deprivation of personal liberty. § 447. Compulsory vaccination. § 448. Compulsory service and labor contracts. § 449. Unreasonable contracts to serve. § 450. Contract labor laws. § 451. American legislation. § 452. Specific enforcement and criminal punishment. Liberty of private conduct. §§ 453-457. § 453. Legislative policy. § 454. Private consumption of liquor. § 455. Question of constitutional right. § 456. Principle of statutory construction. Liquor in clubs. § 457. Freedom of social intercourse. CHAPTER XXIL CIVIL LIBERTY: RELIGIOUS AND POLITICAL. Freedom of religion. §§ 458-470. § 458. The constitutional guaranty. § 459. Repressive sectarian legislation. XXll CONTENTS. § 460. Support of church out of public funds. § 461. Keligious disqualifications. i 462. Kecognition of religion. § 463. The Bible in public schools. § 464. Protective and restrictive legislation. § 465. Blasphemy. § 466. Regulative legislation. § 467. Limits of religious freedom. § 468. Practices and doctrines in conflict with public safety and order. S 469. Conflict between civic and religious duties. § 470. Sunday laws. Freedom of speech and press. §§ 471-479. §471. The constitutional guaranty and censorship. § 472. Freedom of speech and press, and the law of libel. §473. Fox's Libel Act. § 474. Prosecutions for seditious libel in America. § 475. Attacks upon government in general. Anarchism. § 476. Incitement to crime and violence. §477. Anarchists' cases. § 478. Legislation. § 479. Freedom of culture. Freedom of assembly and association. §§ 480-484. { 480. Right of assembly and use of public places. §481. History of the right of association. §482. Constitutional power in America. §483. Political parties and primary election laws. § 484. Conclusions reached. Note — Social control. CHAPTER XXIII. CIVIL LIBERTY: ECONOMIC. Freedom of immifjrntion and settlement. §§ 485-491. § 485. CnnBidcrationa of public welfare. § 486. Movement from and to foreign countries. I 487. Rmigrntion and cxjiatriation. I 488. Ri((ht to come into a state. §480. Emigration from a state. § 490. Movement from and to United States territories. §491. Migration and Hettlomcnt within a state. Freedom of pur.suit of livelihood. §§ 4!t2-497. § 492. Rcntrirtion on right to pursue business as distinguished from regu- lation. § 49.3. ClnMHfH of buHinnsH requiring liccnRo. §494. I^gilimnto gronn.lH ..f r.-straint and protection from competition. § 495. Ccrliflrntion in plnoo of license. § 4W1, Dologfition of legiHlntive power. I 497. Prinripio of oqimlity. CONTENTS. xxiii Freedom of contract. §§ 498-503. § 498. Contract essential to property. § 499. Contract part of civil liberty. § 500. Freedom of contract and oppression. § 501. Legislation and United States Supreme Court. § 502. Decisions of state courts. § 503. Formulation of principle. SECOND : PEOPERTY. VESTED RIGHTS UNDER THE POLICE POWER. CHAPTER XXIV. APPROPRIATION, INJURY AND DESTRUCTION. Taking for public use. Appropriation. §§ 504-506. § 504. Principle of law of nature. § 505. Doctrine of English law. § 506. American constitutions and Fourteenth Amendment. Injury. §§ 507-510. § 507. Property injuriously affected under acts of Parliament. § 508. Physical invasion. § 509. Doctrine of consequential damages. § 510. Moditications of doctrine. Talcing to ward of plihlic injury. §§ 511-517. § 511. Difference between police power and eminent domain, and principle of compensation. § 512. Appropriation generally outside of the police power. § 513. Prejudicial regulation without compensation. § 514. Justification of such regulation. § 515. Regulation of property rights. § 516. Illustrations of regulation not amounting to taking. § 517. Cases of destruction or abrogation of property rights. Insubstantial invasion or destruction. §§ 518-519. § 518. Transitory disturbance of possession. • § 519. Property taken of slight value. Nuisances. §§ 520-528. § 520. Property imminently dangerous. § 521. Summary abatement. § 522. Carcasses, garbage, &c. § 523. Abandoned animals. § 524. Infected cattle. § 525. Property unlawfully used and forfeiture. § 526. Judicial safeguards. XXIV CONTENTS. S 5:27. Lriwton v. Steele. S 528. Property erected or acquired in violation of law. Useful and offensive industries. §§ 529-533. S 529. Status of noxious establishments. § 530. Exercise of municipal power. 5 531. Judicial safeguards. J 532. Status of offensive industries under foreign laws. S 533. Massachusetts law. Destruction to avoid calamity. §§ 534-537. S 534. Destruction to check spread of fire. 5 535. Statutory compensation. 5 536. Pestruction for military purposes. 5 537. Where not ordered by military authority. CHAPTER XXV. CONFISCATORY LEGISLATION. A. Retro.\ctive Prohibition. §§ 538-547. I 538. In general. Principle of non-retroactive operation. S 539. Prohibition against the use of property. I 540. MugliT V. Kanwis. §541. Powfll V. Pennsylvania. I 542. Regulation involving partial prohibition. I 543. Prohibition operating upon estt^blished business or practice of pro- fi>8aion. 5 .'■>44. The t<>.st oatli cases. I 545. tlutvkcr v. .Now York. 5 540. CriticiHm of Hawker v. New York. I 547. Prohibition of oleomargarine business. H. KXPKNSIVE Al-TKKATIONS AM) I MPKOVEMENTS. §§ 548-549. I 548. What in an excesHivr rt'ijuirement. I 549. Limit of constitutional power. C. Heulttion ok ('hak<;k..s. §§ 550-554. I 550. '■ ■' and Judicial control. I 'j't\. ition the whole buHiness within the state. I 622. Value of particular service. I 553. VaIuo of |>re>pcrty. I &&4. Fair rrturo. I), iMfAIKMrST or TIIK OllMOATION OF CONTRACTS. §§ 555-.560. f 5fi8. Polire pnwpf rt^trirtci] with reference to oxisting contracts. ' ' forbidden only if in interest of party obligated. -, iz-j^nKii lori fdf the relief (if debtors. CONTENTS. XXV § 558. Retrospective legal tender laws. § 559. Contracts to pay in specific kind of money. § 560. Sealing laws. CHAPTER XXVI. PUBLIC GRANTS AND LICENSES. § 561. In general. License to imrsue a business prejudicial to safety or morals. §§ 562-564. § 562. Statement of principle. § 563. Lotteries. § 564. Liquor licenses. Useful but offensive undertakings carried on under license. § 565. Cemeteries, markets, &c. Exemptions. §§ 566-568. § 566. From personal services. § 567. From liability for debts. § 568. From taxation. Corporate powers and privileges. §§ 569-572. § 569. Dartmouth College doctrine. § 570. Question whether contract or not. § 571. Illinois water rate cases. § 572. Reservation of power to alter and repeal. Licenses to use public property. Street and other franchises. §§ 573-577. § 573. Public utilities. § 574. Question of municipal power. § 575. Question of surrender of police power. § 576. License a contract or a right of property. § 577. Revocability not effected by exclusiveness. Suggestions regarding rights claimed under affirmative sanction. §§ 578-582. § 578. Theory of vested rights. § 579. Equity of executed consideration. § 580. Licenses limited in time not a surrender of the police power. § 581. Perpetual licenses unreasonable. § 582. Licenses in terms made revocable. CHAPTER XXVIL SOCIAL AND ECONOMIC REFORMS. § 583. In general. The abolition of slavery. §§ 584-586. § 584. Early legislation. § 585. Legislation during the civil war and the question of compensation. XXVI CONTENTS. § 586. Constitutioual aspect of abolition. Trade privileges and Feudal rights. §§ 587-588. § 5S7. Class and trade privileges and exemptions. § 588. Seignorial rights. Perpetuities and mortmain. §§ 589-596. § 5S9. Perpetual rents. § 590. Perpetual covenants. § 591. Entails. § 59J. Acts of secularisation. § 593. Suppression of monastaries in England. S .594. Virginia legislation. § 595. Pawlet v. Clark. § 596. The Mormon Church case. Legislative power over eleemosynary trusts. §§ 597-601. 5 597. Eleemosynary trusts and the Dartmouth College doctrine. S 598. Dorfrincs laid down in Mormon Church case. § 599. Effect of reserved power over corporate charter. § 600. Trust objects becoming contrary to public policy. S 601. English legislation. Note — Power over eleemosynary trusts by Prussian law. 5 60-. SiHiiiiiary of principles regarding property under the police power, FUNDAMENTAL RIGHTS. THIRD. EQUALITY. CHAPTER XX VI II. EQUALITV AS A POLITICAL PRINCIPLE. \ 603. Rcicinl and natural inequality. 1604. Pi.litical inequality. BOOS. Equality in Kngland. I 606. Equality in France. I 607. Kf|iiiility in Prussia. I 608. Equality under American state constitutions. I 609. The rdnrti-eulh Ainendineiit and the Slaughter House cases. I 610. I'>ju«lity and the equal protection of the laws. J 611. Equality and duo process uf l.iw. •HArrKK XXIX. PARTICULAR I'.rUDKXS. |6I'J. 8nbj<'ft Ht'Wu-i] to be responsible for condition calling for burden nnd re»(pon«ibility. 1613. rnrtirtilnr iierviron. V.mcTgency nervicc* ■i ' '' lfnvrltern' pntrnln. CONTENTS. XXvii Dangers due to natural conditions. §§ 616-620. § 616. At common law. § 617. Under tlie police power. § 618. Eeasonableness of requirement. § 619. Where land not the source of the danger. § 620. Cleaning sidewalks. Special liahility in connection with hazardous undertakings. §§ 621-638. § 621. Extension of liability beyond common law principles. § 622. Liability for cost of official supervision. § 623. Liability for the cost of remedial measures. § 624. Liability for acts of persons employed under legal compulsion. § 625. Ship 's liability for fault of pilot. §626. Civil Damage acts. Note — Subcontractors' liens. § 627. Liens under U. S. Eevenue laws. § 628. Dangers incident to the operation of railroads. § 629. Injuring or killing of cattle. § 630. Fire started by sparks from locomotives. § 631. Railroad crossings. § 632. Injury to passengers. § 633. Absolute liability for personal injuries under other legal systems. § 634. Constitutionality of absolute liability. § 635. Penal liability and fault, wrongful intent dispensed with. § 636. Knowledge presumed. § 637. Penal liability of railroad companies. § 638. Penalty corresponding to fault. CHAPTER XXX. SPECIAL PRIVILEGES. A. Discriminative Licenses. §§ 639-655. § 639. Cases calling for discrimination. § 640. Right to equality notwithstanding liability to entire prohibition. Eestrictions based on objective conditions. §§ 641-645. § 641. Regulations superseding administrative discretion. § 642. License a jninisterial or a judicial act. § 643. Unregulated discretion : cases in which held unconstitutional. § 644. Unregulated discretion : cases in which sustained. § 645. Vote or consent of people of locality. Professional qualification. §§ 646-650. § 646. Methods of ascertaining fitness. § 647. Discrimination in tests of fitness. § 648. Encroachment upon judicial power. § 649. Delegation of legislative power. § 650. Privileges accompanying professional license. ^..jii COxNTENTS. Qualification of character. §§ 651-653. § 651. Administrative determination. § 65'2. Substitution of ministerial function. § 653. Administrative discretion as regards business intrinsically harmless. Judicial Control. §§ 654-655. § 6.54. Judicial character of discretion. S 655. Federal protection against arbitrary discretion. B. -Monopolies. §§ 656-681. S 656. Historical remarks. S 657. American constitutional provisions. Monopolies of necessity (franchises). §§ 658-662. § 658. Right to occupy highway. S 659. Right of condemnation of property. 9 660. Temporarily exclusive right under special legislation. 9 661. Canals and river improvements. 9 662. Bank notes. Monopolies to secure the benefit of original production (authors' and in- ventors' rights). §§ 663-665, 9 663. K(]uity of c-xchisive right. 9 664. Kederal legislation. 9 665. Monopoly character. Monopolies against common right. §§ 666-673. 9 666. State monopolies. 9 667. Municipal monopolies. 9 668. Private monopolies against common right. Ferries. 9 669. Mono[>.)ly as a moans of police control. Slaughter house cases. 9 670. l.iccnMc, IcaHc or contract. 9 671, I'owcT over monopolised business, 9 672, Kentrirtion of numberH. 9 673. K«*Hulting privilegcH, Revocability of viouopnlics and grant of competing rights. §§ 674-681, 9 674, IHMlinguiHhr-<| from prohibition of biisincHH. 9 675, Uni-quivocnl grant ttf oxcluHive character required. 9 676. Triiu-iplf of Hiri«'t fr)nHtruction justified. 9 677. Hivnl public undrrtakingH. 9 67M, (^ucntion of power to make oxcluHivcnesH a niad.r of right. 9 079. Cmnt of rcmp.-ting right an impairing the obligation of contracts. 9 6HO. I.plir'Hti(in to Admission to I'mrticp, In Re, It S. 1). 429, R.'S ,V. W. 992 543 Archer v. Baltimore Building 4 Loan AMmiriaf i(in, 45 W. Vn. 37. .10 S. K. 327 304 ArcntiLc-rg, Ponpln of State of New York v., 105 N. Y. 123, 11 N. E. 277, 59 Am. Rep. 483 49 AfKentine, City of v. Atrhiaon, T. and R. V. R. Co., 55 Kan. 7.10, 41 I'nc. 946, 30 L. R. A. 255 548,631 Arimond v. Green Bay etc. Co., 31 Wis. 316 409 Arkadelphia, Town of v. Clark, 52 Ark. 23, 11 S. W. 957, 20 Am. St. Rep. 154....33, 141 Arms V. Ayer, 192 111. 601, 61 N. E. 851, 85 Am. St. Rep. 357 34 Armstrong v. Murphy, 65 Appl. Div. (N. Y.) 123, 72 N. Y. Suppl. 473 251,652 Armstrong v. Treasurer of Athens Co., 16 Pet. 281 568 Arnot V. Pittston & Elmira Coal Co., 68 N. Y. 558, 23 Am. Rep. 190 347 Arthur v. Craig, 48 la. 264, 30 Am. Rep. 395 105 Arthur v. Cakes, 63 Fed. 310, 25 L. R. A. 414, 24 U. S. App. 239, 11 C. C. A. 209 450, 452 Ash V. The People, 11 Mich. 347, 83 Am. Dec. 740 38 Ashbrook v. Commonwealth, 1 Bush. (Ky.) 139, 89 Am. Dec. 61G 176,529 Asher v. Texas, 128 U. S. 129, 9 Sup. Ct. Rep. 1 295 Atchison v. Lucas, 83 Ky. 451 701 Atchison v. Peterson, 20 Wall. 507 414 Atchison and Nebraska R. Co. V, Baty, 6 Neb. 37 637 Atchison St. R. Co. v. Mis- souri Pacific R. Co., 31 Kan. 660, 3 Pac. 284 658 Atchison, Topcka & Santa Fe R. R. Co. V. Campbell, 61 Kan. 439, 59 Pac. 322, 48 L. R. A. 251, 78 Am. St. Rep. 328 394 Atchison, Tojieka & Santa Fe R. Co. V. Denver & N. O. R. Co., 110 IT. S. 667, 4 Sup. Ct. Rep. 185 397 Atcliison, Topeka and Santa IV R. To. V. Matthews, 174 TABLE OF CASES CITED. XXXlll [references are to sections.] U. S. 96, 19 Sup. Ct. Eep. 609 300, 610, 637, 727,736 Atkiu V. Kansas, 191 U. S. 207.. 310 Atkins V. Atkins, 18 Neb. 474, 25 N. W. 724 709 Atlantic, City of v. Turner, 67 N. J. L. 520, 51 Atl. 691 41 Attorney General v. Abbott, 121 Mich. 540, 80 N. W. 372, 47 L. E. A. 92 701 Attorney General v. Metropol- itan E. Co., 125 Mass. 515, 28 Am. Eep. 264 576 Attorney General v. Old Col- ony E. Co., 160 Mass. 62, 35 N. E. 252, 22 L. E. A. 112.. 397 Attorney General v. Tongue, 12 Price 51 288 Attorney General v. Williams et al., 174 Mass. 476, 55 N. E. 77 23,180,514 Attorney General ex rel. Du- senbury v. Looker, 111 Mich. 498, 69 N. W. 929, 56 "L. E. A. 947 363 Augusta, City Council of v, Burum, 93 Ga. 68, 19 S. E. 820, 26 L. E. A. 340 163, 581 Augusta and S. E. Co. v. Ean- dall, 79 Ga. 304, 4 S. E. 165.. 628 Austerberry v. Corporation of Oldham, L. E. 29 Ch. D. 750, 784 372 Austin V. Avigusta Terminal E. Co., 108 Ga. 671, 34 S. E. 852, 47 L. E. A. 755 510 Austin V. State, 22 Ind. App. 221, 53 N. E. 481 454 Austin V. State, 110 Tennessee 563, 50 L. E. A. 478 129 Austin V. Tennessee, 179 U. S. 343, 21 Sup. Ct. Eep. 132 81, 84, 134, 137, 145, 295 Avent-Beattyville Coal Com- pany V. Commonwealth, 96 Ky. 218, 16 Ky. Law Eep. 414, 28 S. W. 502, 28 L. E. A. 273 319 Avis V. Borough of Vineland, 56 N. J. L. 474, 28 Atl. 1039, 22 L. E. A. 685 610 Ayres v. Chicago & North- western E. Co., 71 Wis. 372, 37 N. W. 432, 5 Am. St. Eep. 226 387 Ayres v. Eichards, 38 Mich. 214 427 Babcock v. Buffalo, 56 N. Y. 268 525 Bacon v. Wayne Co., 1 Mich. 461 613 Bailey v. Master Plumbers' Association of Memphis, 103 Tenn. 99, 52 S. W. 853, 46 L. E. A. 561 344 Bailey v. The People of the State of Illinois, 190 111. 28, 60 N. E. 98, 54 L. E. A. 838, 83 Am. St. Eep. 116. .46, 728, 737 Bailey v. Phildelphia W. and B. E. Co., 4 Harr. (Del.) 389, 44 Am. Dec. 593 576 Baker, Ee, 29 How. Pr. 486... 227 Baker v. City of Cincinnati, 11 Oh. St. 534, 80 Am. Dec. 375 37,250 Baker v. Normal, 81 111. 108.. 164 Baker v. State, 54 Wis. 368, 12 N. W. 12 731 Ball V. Herbert, 3 Term Eep. 253 409 Ballance v. Peoria, 180 111. 29, 54 N. E. 428 404 Ballard v. Mississippi Cotton Oil Co. (Miss.), 34 Sou. 533.. 715 Ballentine v. North Missouri E. E. Co., 40 Mo. 491, 93 Am. Dec. 315 387 Ballock V. State, 73 Md. 1, 20 Atl. 184, 8 L. E. A. 671, 25 Am. St. Eep. 559 198 Baltimore v. Eadecke, 49 Md. 217, 33 Am. Eep. 239 643 Baltimore and O. S. W. E. Co. V. State ex rel. Green- wood (Ind.), 65 N. E. 508.... 631 XXXIV TABLE OF CASES CITED. [references are to sections.] Baltimore and Ohio R. Co. v. Kreager, 61 Ob. St. 312, 56 N. E. 203 630 Bancroft v. Cambridge, 126 Mass. 438 518,617 Bank of Columbia v. Okely, 4 Wheaton 235 20 Bank of Commerce v. Tennes- see, Use of City of Memphis, 163 U. S. 416, 16 Sup. Ct. Eep. 1113 568 Banks, In re, 56 Kans. 242, 42 Pac. 693 472 Banta v. City of Chicago, 172 111. 204, 50 N. E. 233, 40 L. R. A. 611 37 Rarbier v. Connolly, 113 U. S. 27, 5 Sup. Ct. Rep. 433 690 Barclay v. Pearson, L. R. 1893 2 Ch. 154 198 Bardon v. Montana Club, 10 Mont. 330, 25 Pac. 1042, 11 L. R. A. 593, 24 Am. St, Rep. 17 456 Bardwell v. Mann, 46 Minn. 285, 48 X. W. 1120 626 Barnes v. Barnes, 8 Jones L. (N. C.) 366 557 Barnett v. Atlantic and Pacific R. Co., 68 Mo. 56, 30 Am. Rep. 773 637 Barney v. Tlic D. R. Martin, 11 Blati-hf. 2:53, Fed. r'as. No. 1030 386 Barney v. Keokuk, 94 IT. S. 324 160 Barnoy v. Oyster liay and Huntington Steamboat Co., 67 N. Y. .301, 23 Am. Hep. 115. . 395 Barrows v. McDermott, 73 Me. 441 518 Bartcmoyor v. Iowa, 18 Wall. 129 539 Bjirtlwt V. Now OrloauH, 24 Fnd. 561 643 Bnrtlott V. Grand Rapids Slrrct R. Co., 82 Mich. 658, 46 N. W. 1034 316 Bass V. The State, 34 La. Ann. 494 409 Batters v. Dunning, 49 Conn. 479 651 Baylies v. Curry, 128 111. 287, 21 N. E. 595 389, 694, 695 Beadles v. Bless, 27 111. 320, 81 Am. Dec. 231 195 Beardsley v. New York, Lake Erie & Western R. Co., 162 N. Y. 230, 56 N. E. 488 393 Beck V. Railway Teamsters' Protective Union, 118 Mich. 497, 77 N. W. 13, 42 L. R. A. 407, 74 Am. St. Rep. 421 333 Bedford, Duke of, v. Trustees of British Museum, 2 Myl. & K. 552 590 Bedore v. Newton, 54 N. H. 117 626 Beebe v. The State, 6 Ind. 501, 63 Am. Dec. 391. .59, 213, 214, 218 Beer Company v. Massachu- setts, 97 U. S. 25 24, 362, 564 Beha v. State (Neb.), 93 N. W. 155 284 Belling v. Evansville, 144 Ind. 644, 42 N. E. 621, 35 L. R. A. 272 141, 530, 641 Bell V. Quebec, L. R. 5 App. C. 84 408 Bennett v, Bennett, 13 N. J. Eq. 114 260 Bennett v. Dutton, 10 N. H. 481 388 Bennett v. Harms, 51 Wis. 251, 8 N. W. 22 709 Bennett v. The Mayor etc. of Town of Pulaski (Tenn.), 52 S. W. 913, 47 L. R. A. 278.. 52 Bent V. Emory, 173 Mass. 495, 53 N. E. 910 .508,518 Bergman v. Cleveland, 39 Oh, St. 651 703 Bortholf V. O'Reilly, 74 N. Y. 509, 30 Am. Rep. 323 20, 626 Bertonneau v. Board of Direct- ors, 3 Woods 177 698 TABLE OF CASES CITED. XXXV [references are to sections.] 201 133 629 32 250 Bessette v. People, 193 111. 334, 62 N. E, 215, 56 L. E. A. 558 493, 497, 646, 688 Bessonies v. City of Indian- apolis, 71 Ind. 189..33, 38, 141, 643 Betts V. State, 93 Ind. 375 245 Beynian v. Black, 47 Tex. 558. 20 Bibb V. Allen, 149 U. S. 481, 13 Sup. Ct. Eep. 950 Bibber v. Simpson, 59 Me. 181.. Bielenberg v. Montana Union Ry. Co., 8 Mont. 271, 20 Pac. 314, 2 L. R. A. 813 Biesecker, People v., 169 N. Y. 50, 61 N. E. 990, 57 L. R. A. 178 Billis V. Burghall, 2 Esp. 722. Billmeyer v. Evans, 40 Pa. St. 321 557 Binghamton Bridge, 3 Wall. 51 363, 577, 675, 679 Birdsall v. Twenty-third Street R. Co., 8 Daly (N. Y.) 419... 323 Birmingham Mineral R. Co. v. Parsons, 100 Ala. 662, 13 So. 602, 46 Am. St. Rep. 92 629 Bisbee v. McAIlen, 39 Minn. 143, 39 N. W. 299 274 Bishop V. American Preserv- ers' Co., 157 111. 284, 41 N. E. 611 Bishop Auckland Local Board V. Bishop Auckland Iron and Steel Co. Ltd., L. R. 10 Q. B. D. 138 Bissell V. Davison, 65 Conn. 183, 32 Atl. 348, 65 L. R. A. 183 447 Bissell V. Heath, 98 Mich. 472, 57 N. W. 585 567 Blaekwell v. Old Colony R. Co., 122 Mass. 1 408 Blades v. Higgs, 11 House of Lords Cases, 621 418 Blair v. Forehand, 100 Mass. 136, 1 Am. Rep. 94 526 Blair v. Kilpatrick, 40 Ind. 312 640,703 353 176 163 90 566 418 Blair v. Williams, 4 Littell 34. 558 Blake v. McClung, 172 U. S. 239, 19 Sup. Ct. Rep. 165.... 709 Blaxton v. Pye, 2 Wils. 309.... 194 Blewitt, Re, 131 N. Y. 451, 30 N. E. 587 252 Bliss, Ex parte, 63 N. H. 135. . 710 Bliss V. Ball, 99 Mass. 597 Bliss V. Commonwealth, 2 Lit- tell (Ky.) 90, 13 Am. Dec. 251. Bloom V. State, 20 Ga. 443 Blount V. Layard, L. R. 1891, 2 Ch. 681 Blue V. Beach, 155 Ind. 121, 56 N. E. 89, 50 L. R. A. 64.... 447 Blythe v. State, 4 Ind. 525 613 Board of Education v. Minor, 23 Oh. St. 211, 13 Am. Rep. 233 Board of Police Commission- ers V. Wagner, 93 Md. 182, 48 Atl. 455 Bohen, Ex parte, 115 Cal. 372, 47 Pac. 55, 36 L. R. A. 618.. Bohn Manufacturing Co. v. W. G. Hollis, 54 Minn. 223, 55 N. W. 1119, 40 Am. St. Rep. 319 Boom Co. V. Paterson, 98 U. S. 403 506 Booth V. Illinois, 184 U. S. 425, 22 Sup. Ct. Rep. 425. .59, 201, 730 Booth V. People of the State of Illinois, 186 111. 43, 57 N, E. 798, 50 L. R. A. 762, 78 Am. St. Rep. 229n.59, 201, 730, 737 Bostock V. Sams, 95 Md. 400, 52 Atl. 665 Boston V. Schaffer et al., 9 Pick. 415, 19 Am. Dec. 332 37, Boston and Albany R. Co. v. Brown, 177 Mass. 65, 58 N. E. 189, 52 L. R. A. 418 Boston and Albany R. Co. v. Cambridge, 159 Mass. 283, 34 N. E. 382 Boston and Albany R. Co. v. 463 526 687 345 181 250 396 631 XXXVl TABLE OF CASES CITED. [refebexces are to sections.] Countv Commissioners, 116 Mass. 73 631 Boston and Maine E, Co. v. County Commissioners, 79 Me. 3S6, 10 Atl. 113 397, 631 Boston and Boxbury Mill Cor- poration V. Newman, 12 Pick. 467, 23 Am. Dee. 622 412 Bottoms V. Brewer, 54 Ala. 288 412 Boutwell V. Marr, 71 Vt. 1, 42 Atl. 607, 43 L. R. A. 803, 76 Am. St. Rep. 746 344 Bowditch V. Boston, 101 U. S. 16 534 Bowe V. State, 25 Ind. 415... 191 Bowen v. Hall, L. R. 6 Q. B. D. 333 333 Bowie V. Birmingham Railway Co., 125 Ala. 397, 27 So. 1016, 50 L. R. A. 632, 82 Am. St. Rep. 247 695 Bowliii V. Lyon, 67 Li. 536, 25 N. W. 766, 56 Am. Rep. 355 388, 695 Bowman v. Chicago and Xorth- wcstfTii Railway Company, 125 V. S. 465, 8 Sup. Ct. Rep. 689, 1062 74, 76, 80, 82, 83, 231 Boyd, State v., 63 Neb. 829, 89 N. W. 417, 58 L. n. A. loH. .. 37 Boyd V, Alabama, 94 U. S. 645 503 Boyd V. Stato, 46 Ala. 329 503 Boyd V. United StatoH, 110 U. H. 616 44 BrrKoville Coal Company v. r.oplp, 147 III. 66, 35 N. E. 62, 22 L. R. A. 340, 37 Am. 8t. Hop. 206 320,502,715,735 Brfiddy V. City of Milb-dge- vilb', 74 CSa. 516, 58 Am. Rep. 443 <(<» BrndlnuKh v. R.-g, L. R. 3 (}. B. I). 607 Ii:i7 T'rndlpy v. Pipmon, 148 Pa. St. S02. 24 Atl. 65 327 hrndwxil, Ho, r,r, III. r,:\ri 702 Hmdwoll V. Illinnin, 10 Wnll. 130 7()o 7f)i! Brady v. McArgle, 14 L. R. (Ireland) 174 249 Bragg V. People, 78 111. 328. . . 566 Bragg V. State (Ala.), 58 L. R. \\. 925, 32 Sou. 767 133 Branson v. Philadelphia, 47 Pa. St. 329 556 Brass V. North Dakota, ex rel. Stoeser, 153 U. S. 391, 14 Sup. Ct. Rep. 857 376, 394 Brewster v. Hough, 10 N. H. 138 568 Brewster v. J. & J. Rogers Co., 169 N. Y. 73, 62 N. E. 164. . . 413 Breyer v. State, 102 Tenn. 103, 50 S. W. 769 735 Brick Presbyterian Church v. Mayor, 5 Cow. 538 565 Brigham v. Edmands, 7 Gray 359 508 Brightman v. Bristol, 05 Me. 426, 20 Am. Rep. 711 525 Brim v. Jones, 11 Utah 200, 39 Pac. 825, 29 L. R. A. 97 634 i'-riruiner v. Rehmnu, 138 U. S. 78, 11 Sup. Ct. Rej). 213.. ..77, 138 Briscoe v. Bank of Common- wealth of Kentucky, 11 Pet. 257 '. 662 401 Bristol V. Barker, 14 Johns 205 Broadway etc. Ferry Co. v. Haukcv. 31 Md. 346 668 Hrodliiiic V. Inhabitants of Re- vere (Mass.), 66 N. E. 607... 171 P.ronson v. Rodos, 7 Wall. 229 308, 559 Hrook.' V. i'liiladelphia, 162 Pa. St. 123, 29 Atl. 387, 24 L. R. A. /81 .548,631 Brooklyn v. Nodine, 26 Hun. •">12 168 BrookH V. ("odar Brooks and S. <'. R. Tmprovcinont Co., 82 Mo. 17, 19 Afl. 87, 7 L. R. A. 400, 17 Am. St. Rep. 4.59 409 Brongliton v. Singleton, 2 Nott & Mcf;. (.S. C.) .388 418 TABLE OF CASES CITED. XXXVll [references are to sections.] Brown et al. v. Houston, Col- lector et al., 114 U. S. 622, 5 Sup. Ct. Eep. 1091 81 Brown v. Hummel, 6 Pa. St. 86, 47 Am. Dec. 431 361 Brown v. New York Central & Hudson River E. Co., 75 Hun 355, 27 N. Y. Supp. 1126. 396 Brown v. Perkins, 12 Gray 89. 526 Brown v. State, 82 Ga. 224, 7 S. E. 915 564 Brown et al. v. State of Mary- land, 12 Wheat. 419 63, p. 58, 74, 81, 230, 295 Brown v. Walker, 161 U. S. 591, 16 Sup. Ct. Rep. 644. .54, p. 48 Brown v. Weaver, 76 Miss. 7, 23 So. 388, 42 L. R. A. 423, 71 Am. St. Rep. 512 445 Brown & Allen v. Jacobs Phar- macy Co., 115 Ga. 429, 41 S. E. 553, 57 L. R. A. 547, 90 Am. St. Rep. 126 345 Brua's Appeal, 55 Pa. 294. .. . 200 Bryan v. Lewis, Ry. and M. 386 200 Buccleuch, Duke of, v. Board &c., L. R. 5 H. L. 418 408 Budd v. New York, 143 U. S. 517, 12 Sup. Ct. Rep. 468 93, 376, 382, 394, 497, 688 Budd v. State, 3 Humph. 483, 39 Am. Dec. 189 731 Buell v. State, 45 Ark. 336... 96 Buffalo v. Buffalo Gas Co., 80 App. Div. 505, 80 N. Y. Suppl. 1093 394 Buffalo V. Chadeayne, 134 N. Y. 163, 31 N. E. 443 538, 565 Buffalo v. Collins etc. Co., 39 App. Div. 342, 57 N. Y. Suppl. 347 275 Buffalo East Side Street R. Co. v. Buffalo Street R. Co., Ill N. Y. 132, 19 N, E. 63, 2 L. R. A. 381 556 Buffington v. Grbsvenor, 46 Kan. 730, 27 Pac. 137, 13 L. R. A. 283 70<» Bulling v. Frost, 1 Ksp. 235.. 195 Burdick v. The Peoj)lc of the State of Illinois, 149 111. 600, 36 N. E. 948, 24 L. R. A. 152, 41 Am. St. Rep. 329 61, 2:; I Burgess v. Sims Drug Co., 114 Iowa 275, 86 N. W. 307, 54 L. R. A. 364 624 Burlington & H. C. Ferry Co. v. Davis, 48 la. 133, 30 Am. St. Rep. 390 678 Burlington v. Burlington St. R. Co., 49 Iowa 144, 31 Am. Rep. 145 576 Burlington C. R. and N. Ry. Co. v. Dey, 82 la. 312, 48 N. W. 98, 31 Am. St. Rep. 477, 12 L. R. A. 436 394 Burnham v. Thompson, 35 la. 421 412 Matter of Burns, 155 N. Y. 23, 49 N. E. 246 413 Burns v. State, 48 Ala. 195, 17 Am. Rep. 34 i;97 Busbee v. Commissioners of Wake County, 93 N. C. 143.. 444 Bussy V. Donaldson, 4 Dall. 206 625 Butchers' Union Slaughter- House Co. v. Crescent City Live-Stock Landing Co., Ill U. S. 746, 4 Sup. Ct. Rep. 652 577, 671, 679 Butler V. Chambers, 36 Minn. 69, 30 N. W. 308 62,283 Butler v. Pennsylvania, 10 now\ 402 579 Butler v. State, 97 Ind. 373. . . 108 Byers and Davis v. Common- wealth, 42 Pa. St. 89 96 Byrd, Ex parte, 84 Ala. 17, 4 Sou. 397, 5 Am. St. Rep. 328 641, 667 Cadell V. Palmer, 1 CI. & F. 372 367 Ca dwell V. State, 17 Conn. 467 245 XXXVlll T-\BLE OF CASES CITED. [references are to sections.] Cairo, St. Louis K. Co. v. Peo- ple, 92 111. 97, 34 Am. Rep. 11:,' 637 Caldcr V. Kurby, 5 Gray 597.. 564 Caldwell v. Alton, 33 111. 416, So Am. Dee. 282 667 Callagban v. Society Prev. Cruelty to Animals, 16 L. R. (Ireland) 235 249 Callanan v. Oilman, 107 N. Y. 30O, 14 N. E. 264, 1 Am. Rep. 831 172 Cullender v. Marsh, 1 Pick. 417 510, 509 Cambridge v. Trelegan, 181 Mass. 565. 64 X. K. 204 565 Campbell, Ex parte, 74 Cal. 20, 15 Pa.-. 318, 5 .\m. St. Rep. 41S 216 Campaii v. Langley, 39 Mich. 451, 33 .\m. Hep. 41ln 168, 526 Camjiliell v. District of Co- lumbia, 19 .\pp. D. C. 131 522 Campbell v. Evans, 45 N. Y. 356 168 ('amiil»ellHburg, <'ity of v. Odowalt, 24 Ky. L. Rep. 1717, 1739, 72 S. W. 314 626 ^'iinadn Roufli<>rn R. Co. v. In- ti-nintional Hridge Co., Tv. R. « App. Cns. 723 552 J'annI AppraiKcrH v. People, 17 Wend. 571 408 ' • Ml City Dairy Co. v. '. 1«3 li. 8. 238, 22 Sup. Ct. Rop. 120 731 Cnrdwel! v, American Piridpc '■■. 113 V. S. 205. 5 -123. ill Co. V. MinneHotn, 180 I'. K. 452, 21 Sup. Ct. Rep. 297,493 • Ti V. -r Aln. 17, 4 Ti. If A. :. ,. lis oo| on V, Rt. LouIh River Dnm nml Tmprovnment Co., " " "2H, 75 N. W. 1044, 41 L. R. A. 371, 72 Am. St. Rep. 610 410 Carrol v. Olmsted, 16 Oh. 251. . 590 Carroll v. Campbell, 108 Mo. 550, 17 S. W. 884 668, 678 Carson v. Blazer, 2 Biun. (Pa.) 475, 4 Am. Dec. 463 418 Carson v. Stale, 69 Ala. 235. .. 223 Carter v. Colby, 71 N. H. 230, 51 Atl. 904 523 Carter v. Coleman, 84 Ala. 256, 4 So. 151 733 Carthage v. Frederick, 122 N. Y. 268, 25 N. E. 480, 10 L. R.- A. 178, 19 Am. St. Rep. 490. 620 Carv Ijibrary v. Bliss, 151 Mass. 365, 25 N. j:. 92 599 Casinello, Ex ])artc, 62 Cal. 538 164 Castner v. Ricgel, 54 N. J. L. 498, 24 Atl. 484 444 Cateril v. Union Pacific R. Co., 2 Id. 540, 21 Pac. 416 629 Cearfoss v. State, 42 Md. 403.. 454 Cecil V. Green, IGl 111. 265, 43 N. H. 1105, 32 L. R. A. 566... 389 Central Bridge Corporation v. Lowell, 70 Mass. (4 Gray) 474 587 Central Elevator Co. v. People, 174 111. 203, 51 N. E. 254, 43 L. R. A. 658 297 Central Military Tract R. Co. V. Kockafcllow, 17 111. 541... 461 Central Ohio Salt Co. v. Guth- rie, 35 Ohio St. 066 347 T'cntral Vn'um Tol. Co. v. Brad- bury, 106 Tud. 1, 5 N. E. 713. 376 Central TTniou Telephone Co. v. Swoveland, 14 Ind. App. 341, 42 N. E. 1035 398 Chambers v. Church, M R. T. 398, 51 y\m. Rep. 410 712 ChamlxM-H v. Warkhousc, 3 Salk. 1 10 421 Chaniper v. T'ity of Green- castln, 138 Ind. 339, 35 N. E. 14, 21 L. n. A. 768, 46 Am. St. Ur\,. 390 ; 52 TABLE OF CASES CITED. XXXIX [references AJIE TO SECTIONS,] Champion v. Ames (Lottery Case), 188 U. S. 321, 23 Sup. Ct. Eep. 321. . .58, 65, 66, 198, 236 Chariton v. Simmons, 87 la. 226, 54 N. W. 146 174 Charles Kiver Bridge v. War- ren Bridge, 11 Pet. 419 675 Charless v. Rankin, 22 Mo. 566, 66 Am. Dec. 642 424 Charlotte C. and A. E. Co. v. Gibbes, 142 U. S. 386, 12 Sup. Ct. Rep. 255 622 Chase v. Hathaway, 14 Mass. 222 252 Chase v. Stephenson, 71 111. 383 698 Chasemore v. Richards, 7 H. L. C. 349 425 Chatfield v. Wilson, 28 Vt. 49. 425 Chavannes v. Priestly, 80 la. 316, 45 N. W. 766, 9 L. E. A. 737 252 Cheesom v. State, 8 Black 332. 194 Chemung Canal Bank v. Low- ery, 93 U. S. 72 709 Chesapeake and Ohio Railway Company v. Kentucky, 179 U. S. 388, 21 Sup. Ct. Rep. 101 73, 699 Chesapeake Potomac Telephone Co. V. Baltimore & O. Tel. Co., 66 Md. 399, 7 Atl. 809 389 Chicago Anarchists' Case (Spies V. People), 122 111. 1, 12 N. E. 865, 17 N. E. 898, 3 Am. St. Rep. 320 476, 477 Chicago V. Bartee, 100 111. 57. 288 Chicago V. Bureky, 158 111. 103, 42 N. E. 178, 29 L. R. A. 568, 49 Am. St. Rep. 142 166 Chicago V. Chicago Union Trac- tion Company, 199 111. 259, 65 N. E. 243 620 Chicago V. Collins, 175 111. 445, 49 L. R. A. 408, 51 N. E. 907, 67 Am. St. Rep. 224 38, 168 Chicago V. Jackson, 196 111. 496, 63 N. E. 1013 511, 631 Chicago V. La-flin, 49 111. 172. . 576 Chicago V. O'Brien, 111 111. 532, 53 Am. Rep. 640 620 Chicago V. Netcher, 183 111. 104, 55 N. E. 707, 48 L. R. A. 261, 75 Am. St. Rep. 93.. 148, 494 Chicago V. Rumpf, 45 111. 90, 92 Am. Dec. 196 670 Chicago V. Stratton, 162 111. 494, 44 N. E. 853, 35 L. R. A. 84, 53 Am. St. Rep. 325. . .645, 689 Chicago V. Taylor, 125 U. S. 161, 8 Sup. Ct, Rep. 820 510 Chicago V. Trotter, 136 111. 430, 26 N, E. 359 174, 468, 480, 643 Chicago V. Union Stockyards Co., 164 111. 224, 45 N. E. 430, 35 L, R. A. 281 525 Chieage & Alton R. Co. v. Erickson, 91 111. 613, 33 Am. Rep. 70 387 Chicago & Alton R. Co. v. Joliet etc, R. Co., 105 111. 388, 44 Am. Rep. 799 631 Chicago & Alton R. Co, v. Peo- ple, ex rel. Attorney General, 152 111. 230, 38 N. E. 562, 26 L. R. A. 224 395 Chicago, Burlington & Quincy R. Co. V. Chicago, 166 U. S. 226, 17 Sup. Ct. Rep. 581.506,631 Chicago, Burlington and Quin- cy R. Co. V. Hague, 48 Neb. 97, 66 N. W. 1000 632 Chicago, Burlington & Quincy R. Co. V. Iowa, 94 U. S. 155 362, 379, 393, 556, 733 Chicago, Burlington & Quincy R. Co. V. Jones, 149 111. 361, 37 N. E. 247, 24 L. R. A. 141, 41 Am. St. Rep. 278 381 Chicago, Burlington & Quincy R. Co. V. Nebraska, 170 U. S. 57, 18 Sup. Ct. Rep. 513 631 Chicago City Railway Co. v. People, ex rel. Story, 73 111. 541 576, 658, 670 Chicago etc. Cdal Co. v. PrtJple, xl TABLE OF CASES CITED. [references are to sections.] 181 111. 270, 54 N. E. 961, 48 L. K. A. 554 622 Chicago Dock Canal Co. v. Garrity, 115 111. 155, 3 N. E. 448 ..' 162 Chicago ami Erie E. Co. v. Keith, 67 Oh. 1^79, 65 N. E. 1020 426, 439 Chicago and Grand Trunk E. Co. V. Hough, 61 Mich. 507, 28 N. E. 532 631 Chicago and G. T. Ey. Co. v. Wellman, 143 U. S. 339, 12 Sup. Ct. Eep. 400 384 Chicago Life Insurance Co. v. Needles, 113 U. S. 574, 5 Sup. Ct. Eep. 681 362 Chicago, Milwaukee & St. Paul E. Co. V. Ackley, 94 U. S. 179 379 Chicago, Milwaukee & St. Paul B. Co. V. Minnesota, 134 U. 8. 418, 10 Sup. Ct. Eep. 462, 702 381,570.611 Chicago, Milwaukee and St. I'aul Hallway Company v. Solan, 169 U. S. 133, 18 Sup. a. R.-p. 940 7.3,79 Chi'-ago Municipal (Jas Light and Fuel Co. v. Town of Lake, no III. 42, 22 N. K. 616. 576, 579 Chi<*ag«> and Nortliwfsforn E. Co. V. rhiragn, M(t III. 3()eeman et al., 92 II. S. 275 71,101,486,705 Ciiicinti.if i, II. and D. E. Co. v. Tiowling Green, 57 Oli. St. 336, 49 N. K. 121, 41 L. E. A. 422. 6T2 Cincinnati H. and T. E. Co. v. ClilTord, 113 Ind. 460, 15 N. E. 524 579 <'ily of, see name of city and Mayor. C'ity Council v. Baptist Church, 4 Strob. (S. C.) .306 141 City ('ouncil of Augusta v. Buruni, 93 Ga. 68, 19 S. E. 820, 26 Ti. E. A. 340 163, 581 Civil Eights Canes, 109 IT. S. 1, 3 Sup. Ot. Eep. 18 663 TABLE OF CASES CITED. xli [references are to sections.] Clack V. White, 2 Swan (Tenn.) 540 427 Clark, Matter of Mary, 1 Blaekf. 122 449 Clark V. Mitchell et al., 64 Mo, 564 20 Clark V. Washington, 12 Wh. 40 196 Classen v. Chesapeake Guano Co., 81 Md. 258, 31 Atl. 437. . 406, 579 Cleland v. Anderson (Neb.), 92 N. W. 306 337, 356 Cleveland, City of v. Clements Brothers Construction Co., 67 Ohio 197, 65 N. E. 885 310 Cleveland C. C. and St. Louis R. Co. V. Connersville, 147 Ind. 277, 46 N. E. 579, 37 L. R. A. 175, 62 Am. St. Eep. 418.. 612 Cleveland, Cincinnati, Chicago and St. Louis R. Co. v. Illi- nois, 177 U. S. 514 395 Clews v. Jamieson, 182 U. S. 461 ... 200 Clinton, City of v. Phillips, 58 111. 102, 11 Am. Eep. 52 43 Clintsman v. Northrup, 8 Cow. (N. Y) 46 276 Coates V. Mayor, 7 Cow. 585. . 565 Cobb V. Commissioners of Lin- coln Park, 202 111. 427, 67 N. E. 5 72 Cochrane v. Frostburg, 81 Md. 54, 31 Atl. 808, 27 L. R. A. 728, 48 Am. St. Rep. 479 156 Coflfey V. United States, 116 U. S. 427, 6 Sup. Ct. Rep. 432. . . 526 Coffin V. Nantucket, 5 Cush. 269.. 534 Cohen v. Berlin & Jones Enve- lope Co., 166 N. Y. 292, 59 N. E. 906 347,353 Cohn V. Wausau Boom Co., 47 Wis. 314, 2 N. W. 546 408 Colby V. Jackson, 12 N.H. 526.. 252 Cole V. Cunningham, 133 U. S. 107, 10 Sup. Ct. Rep. 269 709 Collins V. Hatch, 18 Ohio 523. 156 Collins V. New Hampshire, 171 U. S. 30, 18 Sup. Ct. Rep. 768 49, 58, p. 54, 77, 284 Colon V. Lisk, 153 N. Y. 188, 47 N. E. 302, 60 Am. St. Rep. 609 527 Columbia Carriage Co. v. Hatch, 19 Tex. Civ. App. 120, 47 S. W. 288 346 Columbia College, Trustees of v. Thacher, 87 N. Y. 311, 41 Am. Rep. 365 Columbus City v. Cutcomp, 61 Iowa 672, 17 N. W. 47. .. . Combs V. Agricultural Ditch Co., 17 Col. 146, 28 Pac. 966, 590 564 31 Am. St. Rep. 275. 416 Commissioners of Easton v. Covey, 74 Md. 262, 22 Atl. 266 644 Commissioners on Inland Fish- eries V. Holyoke Water Power Co., 104 Mass. 446, 6 Am. Rep. 247 407,418 Commissioners of the Sinking Fund V. Green etc. River Navigation Co., 79 Ky. 73 587, 661 Commonwealth v. Alger, 7 Cush. 53 405, 409, 576, 617, 620 Commonwealth v. Bacon, 13 Bush. (Ky.) 210, 26 Am. Rep. 189 175,464 Commonwealth v. Bean, 14 Gray 52 156 Commonwealth v. Bearse, 132 Mass. 542, 42 Am. Rep. 450 175, 336, 464 Commonwealth v. Bird. 12 Mass. 443, 9 Am. Dec. 161. . . 566 Commonwealth v. Blackington, 24 Pick. 352 651,672 Commonwealth v. Blanding, 3 Pick. 304 471 Commonwealth v. Blaisdell, 107 Mass. 234 162 Commonwealth v. Brinton, 132 Pa. St. 69, 18 Atl. 1092 ... 288, 294 xlii TABLE OF CASES CITED. [references are to sections.] 16/ 225 292 331 156 Commonwealth v. Brown, Mass. 144, 45 N. E. 1 105 Commonwealth v. Brown, 141 Mass. 78, 6 N. E. 751 244 Commonwealth v. Carey, 151 Pa. St. 368, 25 Atl. 140 454 Commonwealth v. Carter, 132 Mass. 12 519 1 uminonwealth v. Chapin, 5 Pick. 199, 16 Am. Dec. 386 ' 418, 419 Conimouwealth v. Cobb, 120 Mass. 356 245 rommwi wealth v. Collberg, 119 Mass. 350, 20 Am. Rep. 328.. 248 Co-nmonwealth v. Conlin (Ma.ss.), 68 N. E. 1107 rommonwcalth v. Crowell, 156 Ma.HS. 215, 30 N. E. 1015 roiiininnwoalth v. Curren, 3 Pittsb. 143 Commonwealth v. Curtis, 9 Al- len 266 r,,ri.iiumwflalth v. Davis, 162 .M.,vs. 510, 39 N. E. 113, 26 L. R. A. 712, 44 Am. St. Rep. 3«9 167. 174, 480, 644 rommonwealth v. Doherty, 137 Mass. 245 99,244 Commonwenlth v. Dowdican's '. lir, Mass. 133 108 uonwoallh. V. Duane, 98 ,M. 1 376 • ommonwenlth v. Eastern R. Co., 103 Mass. 254, 4 Am. n.,„ sr.S 363, 395 iionwonlth v. Ellis, 158 MnM. SSS, 33 N. K. 388 157 Uh V. Emnrson, 105 ■ . »•_• N. E. 559 60, 198 wfnllh V. Knnox Co., 13 Omy, 239 362,407 wi-nlth V. EvnnH, 132 II 635 ' -'tinonwrnlth v. Ewig, 145 Ml**. nt>, 13 N. E. 36ri 456 -1th V. T'nrren, 9 . 035 Commonwealth v. Fenton, 139 Mass. 195, 29 N. E. 653 . .157, 173 Commonwealth v. Fitchburg R. Co., 12 Gray 180 395 Commonwealth v. Fowler, 96 Ky. 166, 28 S. W. 786, 33 L. R. A. 839 59, 222,650 Commonwealth v. Gage, 114 Mass. 328 376 Commonwealth v. Gardner, 133 Pa. State, 284, 19 Atl. 550, 7 L. R. A. 666, 19 Am. St. Rep. 645 294 Commonwealth v. Gilbert, 160 Mass. 157, 35 N. E. 454, 22 L. R. A. 439 419,422 Commonwealth v. G oiling, 3 Mete. 130 193 Commonwealth v. Gordon, 159 Mass. 8, 33 N. E. 709 32 Commonwealth v. Haggerty, 4 Brewst. 326 104 Commonwealth v. Hallett, 103 Mass. 452 223 Commonwealth v. Hamilton Manufacturing Company, 120 Mass. 3S3 149,312 Commonwealth v. Hilton, 174 Mass. 29, 54 N. E. 362, 45 L. R. A. 475 712 Commonwealth v. Hopkins, 2 Dana, 418 96,191 Commonwealth v. Hunt, Thatcher Cr. C. 609 331 Commonwealth v. Hunt, 4 Mctc. Ill, 3S Am. Dec. 346. 331, 333, 334, .356 Commonwealth v. Julius, 1)3 Mass. 132, H N. E. 89S ().35 Commonwealth v. Keary, 198 !'!i. SI. 500. 48 Atl. 472. .61, 291 Commonwealth v. Keivhill. 12 Cush. Ill 214 Commonwenilli v. Ki.ldor, 107 Mass. 18H 176 Commonwe:ilth v. Ki!iil)all, 24 Pick. 366 223 TABLE OF CASE8 CITED. xliii [references are to sections.] Commonwealth v. Kneeland, 20 Pick. 206 465 Commonwealth v. Lagorio, 141 Mass. 81, 6 N. E. 546 157 Commonwealth v. Lambert, 12 Allen 177 245 Commonwealth v. Landis, 8 Phila. 453 237,238 Commonwealth v. Lewis, 140 Pa. St. 261, 21 Atl. 396, 11 L. R. A. 522 249 Commonwealth v. Look, 108 Mass. 452 419 Commonwealth v. McCafferty, 145 Mass. 384, 14 N. E. 451. . 168 (;ommonwealth v. McDonough, 13 Allen, 581 245 Commonwealth v. Mash, 7 Mete. 472 635 Commonwealth v. Miller, 139 Pa. St. 77, 21 Atl. 138, 23 Am. St. Eep. 170 531 Commonwealth v. Mobile and Ohio E. Co., 23 Ky. Law Rep. 784, 54 L. R. A. 916 719 Commonwealth v. Morning- star, 144 Pa. St. 103 390 Commonwealth v. Munson, 127 Mass. 459, 34 Am. Rep. 411.. 241 Commonwealth v. Murphy, 166 Mass. 171, 44 N. E. 138, 32 L. R. A. 606 90, 91 Commonwealth v. Parks, 155 Mass. 531, 30 N. E. 174 62 Commonwealth v. Passmore, 1 S. & R. 217 172 Commonwealth v. Pear (Mass.), 66 N. E. 719 447 Commonwealth v. Pennsylva- nia Canal Co., 66 Pa. 41, 5 Am. Rep. 329 407 Commonwealth v. Perry, 139 Mass. 198, 29 N. E. 653 176 Commonwealth v. Perry, 155 Mass. 117, 28 N. E. 1126, 14 li. E. A. 325, 31 Am. St. Eep. 533 ....1... 324 Commonwealth v. Petranich (Mass.), 66 N. E. 807 232 Commonwealth v. Plaisted, 148 Mass. 375, 19 N. E. 41, 2 L. E. A. 42, 12 Am. St. Rep. 566. ..36, 158, 174, 468, 480, 644, 729 Commonwealth v. Ramsdell, 130 Mass. 68 221 Commonwealth v. Regan, 182 Mass. 22, 64 N. E. 407 205, 636 Commonwealth v. Roberts, 155 Mass. 281, 29 N. E. 522, 16 L. E. A. 400 542 C'ommonwealth v. Rumford Chemical Works, 16 Gray 231. 176, 179 Commonwealth v. Sehaffner, 146 Mass. 512, 16 N. E. 280. . 32 Commonwealth v. Sisson, 178 Mass. 578, 60 N. E. 385... 60, 198 Commonwealth v. Smith, 102 Mass. 144 ' 456 Commonwealth v. Smith, 166 Mass. 370, 44 N. E. 503 636 Commonwealth v. Sylvester, 13 Allen, 247 389 Commonwealth v. Tay, 170 Mass. 192, 48 N. E. 1086 .... 97 Commonwealth v. Tewksbury, 11 Mete. 55.... 114, 409, 424, 619 Commonwealth v. Turner, 145 Mass. 296, 14 N. E. 130 249 Commonwealth v. Tipton, 6 Gray 473 176,529 Commonwealth v. Vrooman, 164 Pa. 306, 30 Atl. 217, 25 L. R. A. 250, 44 Am. St. Rep. 603 219, 364,401 Commonwealth v. Waldman, 140 Pa. 89, 21 Atl. 248, 11 L. R. A. 563 735 Commonwealth v. Wardell, 128 Mass. 52, 35 Am. Rep. 357.. . 235 Commonwealth v. Wentworth, Brightly (Pa.), 318 162 Commonwealth v. Wetherbee, 153 Mass. 159, 26 N. E. 414. . 32 xliv TABLE OF CASES CITED. [references are Commonwealth v. Whitney, 5 Gray S3 225 Commonwealth v. Willard, 22 Pick. 476 722 Commonwealth v. Zelt. 13S Pa. (515, 1 L. R. A. 602 232, 635 Commonwealth ex. rel. Chew v. Carlisle, Brightly N. P. (Pa.), 36 331, 332 Compaguie Francaise de Navi- gation V. Louisiana State Boanl of Health, 186 U. S. 380. ..31, 71, 82, 136, 486, 488, 705 Concord & Montreal R. Co. v. Boston & Maine R. Co., 67 N. H. 464, 41 Atl. 263 395 Conditional Discharge of Con- vict.s. In Re, 73 Vt. 414, 51 Atl. 10, 56 L. R. A. 658 105 Conner v. Elliott. IS How. 591.. 709 Connor v. Black, 119 Mo. 126, 24 S. W. 772 201, 202 Conolly V. Union Sewer Pipe Co., 184 U. S. .540 339, :\r,i\, (ilO, 734, 7:'.l) Con«idino. He, 83 Fed. 157... 703 ConBolidated <'oal Co. v. llli- ■ ;-. 1.S5 U. S. 203 724, 727 k V. (iregg. 46 \. Y. 439. . 168 «ook V. Lilln. 103 r. S. 793... 560 Cook V. Ponnsylvania, 97 U. H, .'ififi 294, 295 Coolcy V. Board of Wardens of Port of Philadclpiiia .1 ;il., 12 How. 209 72, 80, 135, IM CoomPB V. Burt, 22 Pick. 422. Ml ' .T. In re, 22 N. Y. 67 618 . 'T Nffg. Co. V. KorgiiHon, n.1 tT. a 727, 5 Snp. Ct. Rep. 720 • orljcit, .st.'itc of Minnenota v., f.7 Minn. 315, .59 N. W. 317, 24 L. R. A. 49ft 61 iorilpn V. Rtnto, 37 Knn. 4S, i l Vnr. 41»3 G.-JS '' ' " '■ ". i^nrHon Crim- , .:.. icM ICO 331 TO SECTIONS.] Corfield v. Coryell, 4 Wash. C. C. 371 712 Corwin v. New Haven & Erie R. Co., 13 N. Y. 42 629 Cory V. Carter, 48 Ind. 327, 17 Am. Rep. 738 698 Coster V. Albany, 43 N. Y. 399 166,510 Cote V. Murphy, 159 Pa. St. 420, 28 Atl. 190, 23 L. R. A. 135, 39 Am. St. Rep. 686 326, 337, 3.JG Cothran v. Ellis, 125 111. 496, 16 N. E. 646 200 Cotting V. Kansas City Stock Yards Co. (Cotting v. God- ard), 183 U. S. 79 375, 390, 552, 554, 610, 637, 724, 733, 7,36 Cottrell v. Myrick, 12 Me. 222. 418 Council of Reading v. Com- monwealth, 11 Pa. St. 196, 51 Am. Dec. 534 163 Counselman v. Hitchcock, 142 U. S. 547 54 I'ounty (if, see name of (•(umty. Coverdalo v. Edwards, 155 lud. 374, 58 N. E. 495 582 Covington & <'i)iiMiin:ili Bridge Company v. Kentucky, 154 U. S. 204, 14 Sup. Ct. Rep. 10S7. 72 <'ovingt(\ .1)1 Fnnnlng v. fJregoire, 16 TTow. •VJ.1 075 Fnriat Htcol Co. v. Bridgeport, 60 Conn. 278, 22 Atl. 561, 13 L. R. A. 590 181 I'arm Investment Co. v. Car- penter, 9 Wyo. 110, 61 Pac. 258, 50 L. R. A. 747, 87 Am. St. Rep. 918 417,425 Farmer v. People, 77 111. 400.. 635 Farmers' and Merchants Insur- ance Co. V. Dobney, 62 Neb. 213, 86 N. W. 1070 714, 727 Farmers' and Merchants Insur- ance Co. V. Dobney, 189 U. S. 301 714, 727 Farmers' Loan and Trust Co. V. Chicago and Alton R. R. Co., 27 Fed. 146 706 Farnham v. Pierce, 141 Mass. 203, 6 N, E. 830, 55 Am. Rep. 452 261, 263 Farrell v. State, 45 Ind. 371.. 635 Faw V. Marsteller, 2 Cranch. 10 560 Feek v. Township Board of Bloomingdale, 82 Mich. 390, 47 N. W. 37, 10 L. R. A. 69. . 217 Fell v. State, 42 Md. 71, 20 Am. Rep. 83 564 Folsenhcld v. United States, 186 U. S. 126 25, 275 Ferguson v. Gies, 82 Mich. 358, 46 N. W. 718, 9 L. R. A. 589, 21 Am. St. Rep. 576 389, 695 Ferguson v. Selma, 43 Ala. 398 520 Forner v. State, 151 Ind. 247, 51 N. E. 360 673 Ferrier, Ex parte, 103 111. 367, 42 Am. Rep. 10 260 Ferriter v. Tyler, 48 Vt. 444, 21 Am. Rep. 133 469 Festorazzi v. St. Joseph's Catholic ("Inirch of Mobile, ini ,\|;i. :{27, 18 So. .394, 25 L. K. A. 360, 53 Am. St. Rep. 48 369 Ficklcn V. T:i.xing District of Shelby (Jounty, 145 U. S. 1, 12 Sup. Ct. Rep. 810 295 TABLE OF CASES CITED. xlix [references are to sections.] Fidelity Mutual Life Associa- tion V. Mettler, 185 U. S. 308 714, 727 Field V. Chicago, 44 111. App. 410 177 Field V. Des Moines, 39 la. 575, 18 Am. Kep. 46 534 Fields V. Stokley, 99 Pa. St. 306, 44 Am. Eep. 109 528 Fire Department of the City of New York v. Gilmour, 149 N. Y. 453 142 Fishburn v. Chicago, 171 111. 338, 49 N. E. 532, 39 L. R. A. 482, 63 Am. St. Rep. 236. 673 Fisher v. Horicon Iron and Man. Co., 10 Wis. 351 411 Fisher v. McGirr, 1 Gray 1, 61 Am. Dee. 381 526 Fisk V. Jefferson Police Jury, 116 U. S. 131, 6 Sup. Ct. Eep. 329 579 Fiske, Ex Parte, 72 Cal. 125, 13 Pae. 310 644 • Fiske V. Framington Mfg. Co., 12 Pick. 68 411 Fitchburg E. Co, v. Gage, 12 Gray 393 389 Fitchburg E. Co. v. Grand Junction E. Co., 4 Allen 198. 397 Flagg V. Baldwin, 38 N. J. Eq. 219, 48 Atl. 319 200 Flaherty, Ee, 105 Cal. 558, 38 Pac. 981, 27 L. E. A. 529... 174, 644 Fleming v. Hull, 73 la. 598, 35 N. W. 673 427 Fletcher v. Peck, 6 Cranch. 87. 561 Flinn v. New York Central and Hudson Elver Eailroad, 142 N. Y. 11, 36 N. E. 1046 630 Fluker v. Georgia E. and Banking Co., 81 Ga. 461, 8 S. E. 529, 2 L. E. A. 843 396 riukes. Ee, 157 Mo. 125, 51 L. E. A. 176, 57 S. W. 545.. 301 Fong Yue Ting v. United States, 149 U. S. 698, 13 Sup. Ct. Eep. 1016 486, 487, 704 Foote V. Buchanan, 113 Fed. Eep. 156 .54, p. 48 Ford V. State, 85 Md. 465, 37 Atl. 172, 41 L. E. A. 551, 60 Am. St. Eep. 337 198, 635 Ford V. Thralkill, 84 Ga. 169.. 141 Fort Smith v. Scruggs, 70 Ark. 549, 69 S. W. 679, 58 L. R. A. 921 38, 168 Fortenbury v. State, 47 Ark. 188, 1 S. W. 58 201 Foster v. Police Commissioner- ers, 102 Cal. 483, 37 Pae. 763. 546, 703 Fowle V. Park, 131 U. S. 88, 9 Sup. Ct. Eep. 658 346 Fowler v. State, 5 Day (Conn.) 81 235, 453 Fox V. Washington Territory, 2 Wash. 297, 5 Pac. 603 ...... 684 France v. State, 57 Oh. St. 1, 47 N. E. 1041 647 Francois, Ex Parte, 3 Woods 367 697 Fraser v. McConway & Torley Co., 82 Fed. 257 706 Frasher v. State, 3 Tex. App. 263, 30 Am. Eep. 131 697 Frazee, Ee, 63 Mich. 396, 30 N. W. 72, 6 Am. St. Eep. 310. 174, 468, 643, 673 Ex parte Frazer, 54 Cal. 94. . .. 673 Frazer v. Chicago, 186 111. 480, 57 N. E. 1055 178, 510, 511 Freeport Water Co. v. Freeport, 186 111. 179, 57 N. E. 862 571 Freeport Water Co. v. Freeport, 130 U. S. 587 571, 679 Freleigh v. State, 8 Mo. 606.. 563, 579 French v. State (Texas Cr. App.), 58 S. W. 1015, 52 L. R. A. 160 294 Frisbie v. United States, 157 U. S. 160, 15 Sup. Ct. Eep. 586 24 TABLE OF CASES CITED. [keferexces are to sections.] Frorer v. People, 141 111. 171, 31 N. E. 3ii5. 16 L. K. A. 492. 320, Frost V. Chicago, 178 111. 250, 52 N. E. 869, 49 L. E. A. 657, 69 Am. St. Rep. 301 Frost V. People, 193 111. 635, 61 N. E. 1054 Frost V. Washington County E. Co., 96 Me. 76. 51 Atl. S06. .. Fry V. The State, 63 Ind. 552, 39 Am. St. Rep. 238 61, Fuller V. Mt. Vernon, 171 X. Y. 247, 63 X. E. 964 Fuller V. State, 122 Ala. 32, 26 So. 146, 45 L. R. A. 502, 82 Am. St. 17 104, Gaines v. Buford, 31 Ky. 481.. Gaines v, Coates, 51 Miss. 335. Gallagher v. Dodge, 48 Conn. 387, 40 Am. St. Rep. 182 Gannon v. Doyle, 16 R. I. 726, 19 Atl. 331, 5 L. R. A. 359... Gardner v. Hope Insurance Company, 9 R. 1. 104, 11 Am. Rpp. 238 Garland, Ex Parte, 4 Wall. 33. Garland Xovelty Co. v. State f..\rk.). 71 S. W. 257 (larncft, «'t ala., In Re, 141 IT. 8. 1, 11 Rup. Ct. Rep. 84*0 Gnrxt V. IlarriH, 177 Mass. 72, r.«* .V. K. 174 (Jartnn v. HrlHtol nnrd V. Hnnitnry DiHtrict of ChlrftKo, 204 III. .'570, 08 N. K. .",22 f:.,l,r; r . Htnfe, .'» Iowa 491 norllrnt. 101 V. S. '. 10 Hnp. Ct. R<.p. 000,.417, Ucorgo V. IVopIp of State of 735 286 526 408 291 510 107 439 274 426 252 507 544 526 66 340 397 168 703 560 412 217 420 Illinois, 1G7 111. 447, 47 X. E. 741 105 Gibbons v. Ogden, 9 Wheat. ]. 2, 69, 72, 136 Gibson v. United States, 16G U. S. 269, 17 Sup. Ct. Eep. 578 114, 408 Gifford Drainage District v. Shroer, 145 Ind. 572, 44 X. E. 636 442 Giles' Case, 2 Stra. 881 654 Giles V. Walker, L. E. 24 Q. B. D. 656 616 Gillespie v. People, 188 111. 176, 58 X. E. 1007 3:^6, 735 Oilman v. Philadelphia, 3 Wall. 713 72 Gilman v. McArdle, 99 N. Y. 451, 2 X. E. 464, 52 Am. Rep. 41 369 Gilpin V. Williams, 25 Oh. St. 283 591 Gilpin Overseers v. Parks Overseers, 118 Pa. St. 84, 11 Atl. 791 271 Gladson v. Minnesota, 166 U. S. 427, 17 Sup. Ct. Eep. 627. . 73 Glennon v. Britton, 155 111. 232, 40 N. E. 594 520 Gloucester Ferry Company v. Pennsylvania, 114 U. S. 196, 5 Sup. Ct. Rep. 826. . .117, 717, 718 Gloucester Isinglass and Glue Co. V. Russia Cement Co., 154 Mass. 92, 27 X. E. 1005 .347 Glovrr v. Powell, 10 X. J. F.q. 211 576 Godhout V. St. Paul Union De- pnt Iv'. ('«., 79 Minn. ISS, SI X. W. 8.35, 47 L. R. A. 532.. 396 Godcharles v. Wigoman, 113 Pa. St. 431. C, Atl. 354.. .320, 735 Goddard v. Cliicngo & North- wcHtorn Railway Co., 202 111. 302. 00 X. E. 1066 49.3 Goddard. Polilioncr. 16 Pick. .')04. 28 Am. Dec. 259 620 Good in. Ex Parte, 67 Mo. 037. 566 TABLE OF CASES CITED. li [references are to sections.] Gordon V. Hutchinson, 1 W. & S. 285, 37 Am. Dec. 464 388 Gordon v. State, 46 Ohio St. 607, 23 N. E. 63, 6 L. E. A. 749 217 Gordon v. Winchester Bldg. etc.. Association, 12 Bush 110, 23 Am. Eep. 713 304 Gould V. Hudson River R. Co., 6 N. Y. 522 408 Governor, etc., of British Cast Plate Manufactures v. Mere- dith, 4 T. R. 794 507 Graded School District v. Trus- tees of Bracken Academy, 95 Ky. 436, 26 S. W. 8 362, 599 Graff V. Evans, L. R. 8 Q. B. Div. 373 .' 456 Grand Junction Canal Co. v. Shu'gar, L. R. 6 Chan. App. 483 425 Grand Lodge v. New Orleans, 166 U. S. 143, 17 Sup. Ct. Rep. 523 362,568 Grand Rapids, City of v. Brandy, 105 Mich. 670, 64 N. W. 29, 32 L. R. A. 116, 55 Am. St. Rep. 472 93 Grand Rapids v. De Vries, 123 Mich. 570, 82 N. W. 269 670 Grand Rapids v. Williams, 112 Mich. 247, 70 N. W. 547, 36 L. R. A. 137, 67 Am. St. Rep. 396 168 Grand Rapids Booming Co. v. Jarvis, 30 Mich. 308...4U8, 409, 508 Grand Rapids Chair Co. v. Runnels, 77 Mich. 1134, 43 N. W. 1006 727, 735 Granger Cases, 94 U. S. 113, 155, 164, 179, 180, 181, 183.. 376 Grant v. Davenport, 18 la. 179.. 408 Graves v. Shattuck, 35 N. H. 257, 69 Am. Dec. 536 168 Gray v. Connecticut, 159 U. S. 74, 15 Sup. Ct. Rep. 985 222 Gray v. State, 4 Oh. 353 700 Great Western R. Co. v. Sutton, L. R. 4 H. L. 226 389 Green v. Savannah, 6 Ga. 1. . . 127 Green v. State, 58 Ala. 190, 29 Am. Rep. 739 69G Green v. Swift, 47 Cal. 536. 114, 409 Greene, Re, 52 Fed. Rep. 104. . 346 Greensboro, City of v. Ehren- reich, 80 Ala. 579, 60 Am. Rep. 130 62 Greenville v. Kenimis, 58 S. C. 427, 50 L. R. A. 725 190, 453 Greenwood v. Union Freight R. Co., 105 U. S. 13 362,363 Greer v. Downey (Ariz.), 71 Pac. 900, 61 L. R. A. 408 168 Greers v. Hangabook, 47 Ga. 282 668 Gregory's Executrix v. Trus- tees of Shelby College, 2 Mete. (Ky.) 589 556,563 Gregory, Ex parte, 20 Tex. App. 210, 54 Am. Rep. 516 n 168 Gregg V. Granby Mining and Smelting Company, 164 Mo. 616, 65 S. W. 312 363 Grice, Re, 79 Fed. Rep. 627... 35S Gridley v. Bloomington, 88 111. 554, 30 Am. Eep. 566 620 Grimm v. United States, 156 U. S. 604, 15 Sup. Ct. Rep. 470 236, 453 Grisell v. Noel Brothers, etc., Co., 9 Ind. App. 251, 36 N. E. 452 316 Grissell v. Housatonic R. Co., 54 Conn. 447, 9 Atl. 137, 1 Am. St. Rep. 138 ...629, 630,634 Griswold v. Webb, 16 R. I. 649, 19 Atl. 143, 7 L. R. A. 302. . . 396 Groesch v. State, 42 Ind. 547. 217 Gross' License, 161 Pa. St. 344, 29 Atl. 25 209, 654 Gulf, C. and S. F. R. Co. v. El- lis, 165 U. S. 150, 17 Sup. Ct. Rep. 255 610, 714, 715, 727, 735 Gulf, C. and S. F. Ry. Co. v. Hi TABLE l)F CASES CITED. [references are to sections.] Ellis (Tex.), IS S. W. 723, 17 L. R. A. 286 727 GuniUing v. Chicago, 177 U. S. 1S3. 20 Sup. Ct. Rep. 633 655 Guun V. Barry, 15 Wall. 610.. 557 Gushee v. New York, 42 App. Div. 37, 57 N. Y. Supp. 967 . . 670 Glittery v. Glenn, 201 111. 275, 66 N. E. 305 171 Guy V. Cumberland Co. Com- missioners, 122 N. C. 471, 29 S. E. 771 667 Hagerstown v. Witmer, 86 Md. 293, 37 Atl. 965, 39 L. R. A. 649 156,421 Haggart v. Stohlin, 137 Ind. 43, 35 X. E. 997, 22 L. R. A. 577 178 Haile v. State, 38 Ark, 564, 42 Am. Rep. 3 90 Hall, Re, 50 Conn. 131, 47 Am. Rep. 625 702 Hall V. De Cuir, 95 U. S. 485. 73, 694 Hall V. Mayor of Bristol, L. R. 2 C. P. 322 510 Hall.-r V. Slieridari, 27 Ind. 494 421 Hamilton Gas Light and (,'oke Co, V. Hamilton, 146 U. S. 258, 13 Sup. Ct. Rep. 90 677 Hancock v. Yaden, 121 Ind. 360, 23 N. E. 253, 16 Am. St. Rop, 390 320, 735 Haney v, Clompton, 36 N. J. L. r,i\7 527,712 llankins v. State (Tex.), 72 S. W. 191 I'.Mi Hannah v. People, 198 III. 77, 01 N. ?:. 770 i;97 Hannibal and St. .ToHoph Rail- rond Company v. HiiHon, 95 r, «, 46.'; 71, 77, 83, 101, 138 Hnnnnn v. Webb. 3 C'nj. 236. . . 668 Hnnnrnn v. Lowidl. 105 MaHH. 119. 4.T N. K. 190 429 H'rbnuKh V. People, 10 111. :;•» ncj HnrbiRon v. Knoxvillc Iron Co,, 103 Tenu. 421, 53 S. W. 955, 56 L. E. A. 316 Hardin v. Jordan, 140 U. S. 371. 11 Sup. Ct. Eep. 808, 838 11, Harding v. American Glucose Co., 182 111. 551, 55 N. E. 577, 74 Am. St. Rep. 189 Harding v. People, 160 111. 459, 43 N. E. 624, 32 L. R. A. 445, 52 Am. St. Rep. 344. .394, 502, Harding v. Goodlett, 3 Yerg. 41, 24 Am. Dec. 546 Harmon v. Chicago, 110 111. 400, 51 Am. Rep. 698 Harmon v. State, 66 Oh. St. 249, 64 N. E. 117, 58 L. R. A. 618 493, 496, 649, Harney v. State, 8 Lea. 113. . . Harrington v. Providence, 20. R. I. 233, 38 Atl. 1, 38 L. E, A. 305 Harris v. White, 81 N. Y. 532. 192, Harrison v. Brophy, 59 Kans. 1, 40 L. R. A. 721, 51 Pac. 883 Harrison v. Ely, 120 111. 83, 11 N. E. 334 Harrison v. Glucose Sugar Re- fining Co., 116 Fed. 304, 58 L. R. A. 915 Harrison v. Mayor of Balti- more, 1 Gill (Md.) 264... 123, Harrison v. People, 101 III. 320 404 353 412 177 684 722 542 194 369 226 App 212. Harrison v. People ex rel. Boettcr, 195 111. 466, 63 N. E. 191 212, Harrison v. Wisdom. 7 TToisk. (Tcnn.) 99 Hart V. Boston, etc., E, Co., 121 Mass. 510 Hart V. Mayor of Alliany, 3 Paige 213 lliirt V. Western Railroad Co., 13 Mete. 99 ... Hartnett v. Plumbers' Sup]dy Association of New England, 348 446 644 652 537 626 170 630 TABLE OF CASES CITED. liii [references are to sections.] 169 Mass. 229, 47 N. E. 1002, 38 L. E. A. 194 301 Harvey v. Merrill, 150 Mass. 1, 22 N. E. 49, 5 L. E. A. 200, 15 Am. St. Eep. 159 200 Haskell, Ex Parte, 112 Cal. 412, 44 Pac. 725, 32 L. E. A. 527 58, p. 53 Hatwood V. State, 18 Ind. 492 . 488, 691 Hauenstein v. Lynham, 100 U. S. 483 706 Hawker v. People of State of New York, 170 U. S. 189, 18 Sup. Ct. Eep. 573 26, 110, 545 Hawkins, Ex Parte, 61 Ark. 321, 33 S. W. 106, 30 L. E. A. 736, 54 Am. St. Eep. 209 104 Hawkins, Ee, 165 N. Y. 188, 58 N. E. 884 683 Hawkins v. Sanders, 45 Mich. 491, 8 N. W. 98 162 Hawkins Point Lighthouse Case, 39 Fed. 77 404 Hawthorn et al. v. The People of the State of Illinois, 109 111. 302, 50 Am. Eep. 610. .40, 297 Hayden v. State (Miss.), 33 So. 653 133 Hayes, Ex Parte, 98 Cal, 555, 33 Pac. 337, 20 L. E. A. 701. . 703 Haverty v. Bass, 66 Me. 71 123 Head v. Amoskeag Mfg. Co., 113 U. S. 9, 5 Sup. Ct. Eep. 441 410, 411 Health Department v. Trinity Church, 145 N. Y. 32, 39 N. E. 833, 27 L. E. A. 710, 45 Am. St. Eep. 579 150, 549 Hechinger v. Maysville, 22 Ky. L. Eep. 486, 57 S. W. 619, 49 L. E. A. 114 158, 457 Heilbron, Ex Parte, 65 Cal. 609. 141 Helphenstine v. Hartig, 5 Grif- fiths (Ind. App.) 172 316 Heilbron, Ex Parte, 65 Cal. 609, 4 Pac. 648 530 Henderson et al. v. Mayor of the City of New York et al., 92 U. S. 259 71, 79, 101, 271, 486,705 Henderson Bldg. Loan Associ- ation V. Johnson, 88 Ky. 191, 10 S. W. 787, 3 L. E. A. 289. . 304 Hennington v. Georgia, 163 U. S. 299, 16 Sup. Ct. Eep. 1086. 73, 159 Hepburn v. Griswold, 8 Wall. 603 558 Hewitt V. Charier, 16 Pick. 353 153, 673 Hewitt V. Story, 64 Fed. 510, 30 L. E. A. 265 416 Hewitt V. Watkins, 11 Barb. 409 444 Hibbard, Spencer, Bartlett & Co. V. Chicago, 173 111. 91, 50 N. E. 256, 40 L. E. A. 621 ... 163 Hibbard v. People, 4 Mich. 125 526 Hibbard v. State, 65 Oh. St. 574, 64 N. E. 109, 58 L. E. A. 654 436' Hibblewhite v. McMorine, 5 M. & W. 462 200 Hilo Sugar Mfg. Co. v. Mioshi, 8 Haw. Eep. 201 450 Hine v. New Haven, 40 Conn. 478 528, 644 Hiner v. Fond du Lac, 71 Wis. 74, 36 N. W. 632 620 Hirn v. State, 1 Oh. St. 15... 564 Hisey v. Mexico, 61 Mo. App. 248 163 Hobbs, Ee, 1 Woods 537 697 Hoboken, City of v. Goodman (N. J.), 51 Atl. 1092 703 Hockett V. State, 105 Ind. 250, 5 N. E. 178, 55 Am. Eep. 201. 376 Hocking Valley Coal Co. v. Eosser, 53 Oh. St. 12, 41 N. E. 263, 29 L. E. A. 386, 53 Am. St. Eep. 622 714,735 Hodges, Ex parte, 87 Cal. 162, 25 Pac. 277 618 Hodges V. Ferine, 24 Hun 516. 409 Hoeffer v. Clogan, 171 111. 462, liv TABLE OF CASES CITED. [references are 40 L. E. A. 730, 63 Am. St. Rep. 241 369 Hokleu V. Hardy, 169 U. S. 366, IS Sup. Ct. Eep. 383... 131, 155, 317, 501, 735 Hollailay v. Marsh, 3 Wend. 142, 20 Am. Dec. 678 444 Holland V. Allcock, 108 N. Y. 312, 16 N. E. 305, 2 Am. St. Kep. 420 369 Hollister v. Union Co., 9 Conn. 436, 25 Am. Dec. 36 409 Holmes v. Jennison, 14 Peters 540 5 Holmes v. Smytlie, 100 111. 413. 304 Hoist V. Eoe, 39 Oh. St. 340, 48 Am. Eep. 459 434 Holyoke Water Power Co. v. Lyman, 15 Wall. 500 ....407,418 Home Insurance Co. v. Morse, 20 Wall. 445 716 Homer Ramsdell Transportation Co. V. Comjiaj^nie Generale Transatlantiquc, 182 U. S. 406. 626 Honker V. Town of Greenville, 130 \. C. 472, 42 S. E. 141. . 700 Hooker v. Vandewater, 4 Den. 349, 47 Am. Dec. 258 347 Hooper v. California, 155 U. 8. 648, 15 Sup. Ct. Eep. 207. . 715 Hooper V. Emery et :il., 14 Me. 375 23 HopkinH V. United States, 171 U. 8. 578, 19 Sup. Ct. Eep. 40 3n. 351,354 HopBon 'b Appeal, 65 Conn. 140, 31 All. 531 209 Hornn v. Hyrncs (N. TL), 54 All. 045 4L'fi Horn Silver Mininj; <'o. v. Now York, 143 U. 8. 305, 12 Sup. Ct. Hep. 403 . 350 Horner v. United States, 147 U. 8. 410, 13 Sup. Ct. Eep. 409 196,198 Horwirh v. WalkerOordon Lnliorntnry Co., 205 HI. 497, fiH N. H. 038 298 TO SECTIONS.] House of Eefuge v. Eyan, 37 Ob. St. 197 262 Hovelman v. Kansas City Horse E. Co., 79 Mo. 632 576 Howes V. Maxwell, 157 Mass. 333, 32 N. E. 152 . . ; 626 Hronek v. People, 134 111. 139, 24 N. E. 861, 8 L. E. A. 837, 23 Am. St. Eep. 652 461 Hubbard v. Callahan, 42 Conn. 524, 19 Am. Eep. 564 555 Huber v. Merkel (Wis.), 94 N. W. 354 425 Hudelson v. State, 94 Ind. 426, 48 Am. Eep. 171 198 Hudson V. Thorne, 7 Paige 261. 141 Hughes V. Eecorder's Court of Detroit, 75 Mich. 574, 42 N. W. 984, 4 L. E. A. 863, 13 Am. St. Eep. 475 667 Humpeler v. People, 92 IlL 400. 635 Hunt V. Coggin, 66 N. H. 140. 426 Hunt V. Searcy, 167 Mo. 158, 67 S. W. 206 253 Hurley v. Eddingfield, 56 Ind. 416, 59 N. E. 1058, 53 L. E. A. 135 386, 650 Hussey v. Crickett, 3 Campb. 168 195 Hyde v. County of Middlesex. 2 Gray 267 162 leck v, Anderson, 57 Cal. 251, 40 Am. Eep. 115 527 llor V. Eoss (Neb.), 90 N. W. 869, 57 L. E. A. 895 670 Illinois Central E. Co. v. liloomington. 76 111. 447 631 Illinois Ceufral 1\. Co. v. ('(im- iiKinwcallh, 23 Ky. Ti. Hop. 1159, 64 S. W. 975 392 Illinois Central E. Co. v. (rider, 91 Teun. 489, 19 S. W. CIS 629,727 Illinois Central E. Co. v. illi noia, 146 T^ S. 387, 13 Sup. Ct. Eep. 110 408, 574,601 Illinois Centr:il Eailroad Com- TABLE OF GASES CITED. Iv [references are to sections.] pany v. Illinois, 163 U. S. 142, 16 Sup. Ct. Rep. 1096. .73, 395, 408 Illinois State Board of Dental Examiners v. People ex rel. Cooper, 123 111. 227, 13 N. E. 201 153, 647 Indiana, State of, v. Woram, 6 Hill (N. Y.) 33 22 Indianapolis & Cincinnati E. Co. V. Kercheval, 16 Ind. 84. 362 Indianapolis Cable Street E. Co. V. Citizens Street E. Co., 127 Ind. 369, 24 N. E. 1054, 26 N. E. 893, 8 L. E. A. 539. 660, 675 Indianapolis Union E. Co. v. Dohn, 153 Ind. 10, 53 N. E. 937, 45 L. E. A. 427, 74 Am. St. Eep. 274 398 IngersoU v. Sargent, 1 Whart. 337 370 Ingram v. The State, 39 Ala. 247, 84 Am. Dec. 782 58, p. 53, 516 Intendant v. Sorrell, 1 Jones Law (N. C.) 49 274 Intendant and Council of Town of Marion v. Chandler, 6 Ala. 899 216 International Text Book Com- pany V. Weissinger (Ind.), 65 N. E. 521 319 Inter Ocean Publishing Co. v. Associated Press, 184 111. 438, 56 N. E. 822, 48 L. E. A. 568, 75 Am. St. Eep. 184 386 Interstate Commerce Commis- sion V. Alabama Midland E. Co., 168 U. S. 144, 18 Sup. Ct. Eep. 45 381, 392 Interstate Commerce Commis- sion V. Baltimore & Ohio E. Co., 145 U. S. 263, 12 Sup. Ct. Eep. 844 391 Interstate Commerce Commis- sion V. Cincinnati, N. O. and T. P. Ey. Co., 167 U. S. 479, 17 Sup. Ct. Eep. 896 375 Iowa Savings & Loan Associa- tion V, Heidt, 107 la. 297, 77 N. W. 1050, 43 L. E. A. 689, 70 Am. St. Eep. 197 304 Irwin V. Phillips, 5 Cal. 140, 63 Am. Dec. 113 415 Irwin V. Williar, 110 U. S. 499, 4 Sup. Ct. Eep. 160 200 Isenhour v. The State, 157 Ind. 517, 62 N. E. 40 34 Jackson, Ex parte, 96 U. S. 727 48,236 Jackson v. Phillips, 14 Allen 539 599 Jackson v. Eogers, 2 Shower 327 387 Jackson v. Shawl, 29 Cal. 267. 303, 733 Jackson v. Stanfield, 137 Ind. 592, 36 N. E. 345, 23 L. E. A. 588 345 Jacksonville v. Ledwith, 26 Fla. 163, 7 So. 885, 9 L. E. A. 69, 23 Am. St. Eep. 558 667 Jacobs, In re, 98 N. Y. 98 151 Jamieson v. Indiana Natural Gas and Oil Co., 128 Ind. 555, ' 28 N. E. 76, 12 L. E. A. 652. 556 Jamison v. Burton, 43 Ind. 282 635 Janes, Ee, 30 How. Pr. (N. Y.) 446 227 Janesville v. Carpenter, 77 Wis. 288, 46 N. W. 128, 8 L. E. A. 808, 20 Am. St. Eep. 123 404 Jannin v. State (Texas), 51 S. W. 1126, 53 L. E. A. 349. 61, 291,298 Janvrin, Ee, 174 Mass. 514, 55 N. E. 381 385 Jeffries v. Ankeny, 11 Oh. 372. 700 Jeffreys v. Boosey, L. E, 4 H. L. Cas. 815 663 Jencks v. Coleman, 2 Sumn. 221 386 Jenkins v. Ballantyne, 8 Utah 245, 30 Pac. 760, 16 L. E. A. 689 421 Ivi TABLE OF CASES CITED. [references are to sections.] Jenks V. Turpin, L. R. 13 Q. B. D. 505 190, 191 Jensen v. Union Pacific R. Co., 6 Utah 253, 21 Pac. 994, 4 L. R. A. 724 629 Jentzsch, Ex parte, 112 Cal. 468, 44 Pac. 803, 32 L. R. A. 664 735 John D. Park & Sons Co. v. National Wholesale Druggists Assoc 'n, 175 N. Y. 1, 67 N. E. 136 346 John Spry Lumber Co. v. Sault Savings Bank, Loan and Trust Co., 77 Mich. 199, 43 N. W. 788, 18 Am. St. Rep. 396. 626 Johnson v. Chicago, Milwaukee and St. Paul R. Co., 29 Minn. 425, 13 N. W. 673 727 Johnson v. Fall, 6 Cal. 359, 65 Am. Dee. 518 195 Johnson v. Goodyear Mining Company, 127 Cal. 4, 59 Pac. 304, 47 L. R. A. 338, 78 Am. St. Rep. 17 320,715 Johnson v. Midland K. R. Co., 4 Exch. 367 388 Johnson v. Oregon Short Line Co. (Idaho), 63 Pac. 112, 53 I,. H. A. 744 629 .lohnHon v. Peiisacohi &c. R. Co. 16 Fla. 623, 26 Am. Rep. 731.. 389 JonPH V. lirim, 165 V. S. 180, 17 Sup. Ct. Rep. 253 632 Joncfi V. Oalona, etc, R. Co., 16 Iowa 6 629 JoncB V. People, 14 111. 196... 214 Jones V. Perry, 50 N. H. i:!t . tit Jordan. In re, 90 Mi<-li. .'!. 5(1 .\. W. 1087 99 Jordan v, Ovothooth nt Dayton, 4 Oh. 29." i:!5 Jordan v. Wodilvvard, -lO Me. 317 411 Joseph V. Rnnilolph, 71 Ala. 4Wt, 46 Am. Kcp. .147 4H9 Jonoph V. HidwoH, 2« TJ66 105 Murphy v. Leggett, 164 N. Y. 121, 58 N. E. 42 162,172 Murjihy v. Rogers, 151 Mass. lis, 24 X. E. 35 lf)2 Murray v. Menefee, 20 Ark. .561 668 Musgrove v. St. Louis Church, 10 La. Ann. 431 178 Myers v. Field, 146 111. 50, 34 N. E. 424 567 Myii.-k V. Battle, 5 Fla. 345.. 555 Myrick v. Brawley, 33 Minn. 377, 23 N. W. 549 363 Nash V. Page, 80 Ky. 539, 44 Am. Rep. 490 390 Nasliville and Chattanooga R. \i. Co. V. Peacock, 25 Ala. li*J9 628 Nashville. Chattanooga and St. Louis Railway v. Alal)aiiia, 128 U. S. 96, 9 Sup. Ct. Rep. 2« 73, 622 Natal V. Louisiana, 139 U. S. 621, 11 Sup. Ct. Rep. 636 667 Nathan v. State of Louisiana, H How. 73 71, 7ti National I'rotoclivc Assoctia- tion of Steam Fitters v. Ciim- niing, 170 N. Y. 315, 63 N. E. 360. HH Am. St. Hep. 6)8.. 333, 334 N<'l)rn«ka Toli-grajjh Co. v. HtJitp, M No}.. fi27, 70 N. W. 171, 45 L. U. A. 113 385 * ■ V. C.Mlfr.-v, 12 IM. 20. . IC'J V. P.nplo, .13 111. 39(» 488. 691 Nolnon V. Htafi- Hoard Health, 22 Ky. I,. Rf-p. 438, 57 S. W. 501, 50 L. R. A. 383.... 133, 153. 647 Nesbit V. Trumbo, 39 111. 110, 89 Am. Dec. 290 427 Nester v. Continental Brewing Co., 161 Pa. 473, 29 Atl. 102, 24 L. E. A. 247, 41 Am. St. Rep. 894 344 Nettles V. Sommervell, 6 Tex. Civ. App. 627, 25 S. W. 658. . 301 Newark &c. Ey. Co. v. Hunt, 50 N. J. L. 308, 12 Atl. 697 . . 521 New Castle v. Cutler, 15 Pa. Super. Ct. 612, 625 288, 732 Newcomb v. Smith, 2 Pinn. (Wis.) 131 412 New England Trout etc. Club V. Mather, 68 Yt. 338, 35 Atl. 323, 33 L. R. A. 569 518 New England Express Co. v. Maine Central R. Co., 57 Me. 188 395 Newman, Ex parte, 9 Cal. 502. 185 New Jersey v. Wilson, 7 Cranch 164 561, 568 New Jersey v. Yard, 95 U. S. 104 568 New Orleans v. Faber, 105 La. 208, 53 L. R. A. 165, 83 Am. St. Rep. 232 530,565,667,670 New Orleans v. (it. Southern Telejdione and Telograpli Co., 40 La. Ann. 41, 3 So. 533, 8 Am. St. Rep. 502 576 Now Orleans v. St. TiOuis Church, 11 La. Ann. 244.. 178, 565 New Orleans v. Koo, 107 La. 762, 31 Sou. nil 4 622 New Orleans \. St.-id'ord, 27 L:i. Ann. -117, 21 Am. Rep. 563... 565 Now Orleans (!aa Comprniy \'. Louisiana Light C()in|)aiiy, 115 U. S. 650, <; Sup. ('1. Ri'|.. L'52 22, 3(;;{, 577, 669, 67'.) New Orleans Wafer Works Co. V. Rivers. 1 15 l'. S. (".7 1, 6 Sup. Ct. K'ep. 273. 679 Newport etc. I'.ridge Co. v. United States, 105 V. S. 170 106, 576 TABLE OF CASES CITED. Ixv [references are to sections.] New York, see also Mayor. New York, In re City of, 168 N. Y. 134, 61 N. E. 158 408 New York v. Herdje, 68 App. Div. 374, 74 N. Y. Supp. 104. 556 New York v. Miln, 11 Peters 102 2,45,271,705 New York & Chicago Grain & Stock Exchange v. Chicago Board of Trade, 127 111. 153, 19 N. E. 855, 48 L. E. A. 568, 11 Am. St. Kep. 107 386 New York Board of Under- writers V. Whipple, 37 N. Y. Suppl. 712 615 New York & New England E. Co. V. Board E. E. Commission- ers, 162 Mass. 81, 38 N. E. 27 427 New York and New England E. E. Co. V. Bristol, 151 U. S. 556, 14 Sup. Ct. Eep. 437... 548, 556, 631 New York and New England E. Co. V. Waterbury, 60 Conn. 1, 22 Atl. 439 631 New York, Lake Erie and Western E. Co. v. Pennsyl- vania, 153 U. S. 628, 14 Sup. Ct. Eep. 952 576 New York, New Haven and Hartford Eailroad Company V. New York, 165 U. S. 628, 17 Sup. Ct. Eep. 418 73, 134, 135, 727 New York, New Haven and Hartford E. Co. v. Scovill, 71 Conn. 136, 41 Atl. 246, 42 L. E. A. 157, 71 Am. St. Eep. 159 396 New York Sanitary Utilisation Co. V. Department of Public Health, 61 App. Div. 106, 70 N. Y. Suppl. 510 530 Newson v. Galveston, 76 Tex. 559, 13 S. W. 368, 7 L. E. A. 797 667 Newton v. Belger, 143 Mass. 598, 10 N. E. 464 643, 644 Nickerson v. Boston, 131 Mass. 306 617 Nightingale, Re, 11 Pick. 168.. 173 Nixson V. Eeed, 8 S. D. 507, 67 N. W. 57, 32 L. R. A. 315. 668 Noel V. People, 187 111. 587, 58 N. E. 616, 52 L. E. A. 287, 79 Am. St. Eep. 238. .149, 643, 650 Nordenfeldt v. Maxim-Norden- feldt Co., L. E. 1894 App. Cas. 535 348 Norfolk, Duke, Case of, 3 Ch. Cas. 1 367 Norris v. Farmers' Teamsters Co., 6 Cal. 590, 65 Am. Dec. 535 668 North V. Board of Trustees of University of Illinois, 137 111. 296, 27 N. E. 54 463 North V. The People of State of Illinois, 139 111. 81, 28 N. E. 966 87,90 North Chicago E. Co. v. Lake View, 105 111. 207, 44 Am. Eep. 788 158 North Dakota v. Nelson Coun- ty, 1 N. D. 88, 45 N. W. 33, 26 Am. St. Eep. 609 268 North Springs Water Co. v. City of Tacoma, 21 Wash. 517, 58 Pac. 773, 47 L. E. A. 214. . 677 Northern Central E. Co. v. Baltimore E. Co., 46 Md. 425. 631 Northern Pacific E. Co. v. Washington, 142 U. S. 492... 395 Northrup, Ex Parte, 41 Or. 489, 69 Pac. 445 735 Northwestern Fertilizing Com- pany V. Hyde Park, 97 U. S. 659 '.24, 565 Northwestern Telephone Ex- change Co. V. Minneapolis, 81 Minn. 140, 83 N. W. 527, 86 N. W. 69, 53 L. E. A. 175... 575 Norwalk Street Eailway Com- pany's Appeal, 69 Conn. 576, Ixvi TABLE OF CASES CITED. [references are to sections.] 37 Atl. lOSO, 38 Atl. 708, 39 L. K. A. 794 385 Norwich Gas Light Co. v. Nor- wich City Gas Co., 25 Conn. 19 574 Notfs Case, 11 Me. 208. .. .98. 244 Northern Pacific R. Co. v. Washington, 142 U. S. 492, 12 Sup. Ct. Rep. 283 395 Nunes v. State of Georgia, 1 Ga. 243 90 Nutting V. Massachusetts, 183 r. S. 5.")3 716 Oakdalc Manufacturing Co. v. Caret, 18 K. I. 484, 28 Atl. 973, 23 L. R. A. 639, 49 Am. St. Rep. 784 353, 716 O'Connor v. Pittsburgh, 18 Pa. 187 510 «•:',, or V. Young, 5 Yerger V r.'nn.) 320, 26 Am. Dec. 268. 20 Og'len V. Saunders, 12 Wheat. 213 306, 378, 558 O'Leary, Ex parte, 65 Miss. 80, 3 So. 144, 7 Am. St. Rop. 640. 33 O'Ncil V. Hehanna, 182 Pa. 236, 37 Atl. 843, 38 L. R. A. 382, 01 .\m. St. Rop. 702 333 Ohio V. NelT, 52 Oh. St. 375, 40 N. K. 720 362,599 Ohio V. Thomas, 173 U. S. 276. . 67 Ohio nml MiHHisHi|»pi H. Co. v. Lackey, 78 111. 55, 20 Am. Rep. 259 612 Ohio & Mnl.ilo R. Co. V. People, 120 III. 200, 11 N. E. 347 :J95 Ohio Life InHurnnce and Trust Co, V. Diol.olt, 16 How. 416,. 676 Ohio Oil Co, V. Indiana, 177 V. H. 190. 20 Sup. Ct. Rop. 576. . 422 ' RuperviflorH, 16 Old Colony R. Co. v. Tripp, 147 Mrnw. ari, 17 N, K. 89. 9 Am. «t. Rrp, - Olive V. V.iii r.ittcii, 7 Tex. 306 .'!ir, Olmstead v. Camp, 33 Conn. 532, 89 Am. Dec. 221 412 Olympia, City of v. Mann, 1 Wash. 389, 12 L. R. A. 150... .141 Opinion of Justices, 21 Col. 27, 39 Pac. 431 275 Opinion of Justices, 155 Mass. 598, 30 N. E. 1142, 15 L. E. A. 809 23,666 Opinion of Justices, 163 Mass. 589, 40 N. E. 713 735 Opinion of Justices, 165 Mass. 599, 43 N. E. 927, 32 L. R. A. 350 701 Oregon R. and N. Co. v. Smal- ley, 1 Wash. St. 206, 23 Pac. 1008, 22 Am. St. Rep. 143 629 Oren, Attoruey General, v. Ab- bott, 121 Mich. 540, SO N. W. 372. 47 L. R. A. 92 701 Orient Insurance Co. v. Daggs, 172 U. S. 557, 19 Sup. Ct. Rep. 281 400, 501 Osborn v. Knife Falls Boom Corporation. 32 Minn. 412, 21 N. W. 704, 50 Am. Rep. 590. 408 Osborn v. Hart, 24 Wis. 89, 1 Am. Rep. 161 427 Otis V. Parker, 187 U. 8. 606..59, 201 Oviatt V. Pond, 29 Conn. 479.. 526 Owcnsboro and X. H. Co. v. Todd. 91 Ky. 175, 15 S. W. r,r,, 11 L. Iv'. \. L's.-, G29 Pace V. Alabama, 106 V. S. 583, 1 Sup. Ct. Rep. 637 697 Pacific Mail S. S. Co. v. .b.lif(>, 2 Wall. 150 117 Packanl v. h'yd.T. Ml Mass. 4 10, 11 N. E. 578, 59 Am. i:.-)). 101 405 Pacdtor V. Welsted, 2 Sid. 39, . Ill 427 Parkott Company v. Catlctta- burg, 105 U. H. 559 72 Palairot'H Appeal, 67 Pa. St. 179, 5 Am. Rop. 450 370, 589 Palmer v. Tingle, .55 Oh. St. 123, 45 N. E. 313 626 TABLE OF CASES CITED. Ixvii [references are to sections.] Palmer v. Way, 6 Col. 106 620 Paris, Trustees of Town of V. Berry, 25 Ky. 483 620 Park and Sons Co. v. National Wholesale Druggists Ass., 175 N. Y. 1, 67 N. E. 136.. 346 Parker et al. v. Common- wealth, 178 Mass. 199, 59 N. E. 634 23, 180, 514 Parker v. Commonwealth, 6 Pa. St. 507, 47 Am. Dec. 480. 217 Parker v. Kaughman, 34 Ga. 136 614 Parker v. Metropolitan E. E. Co., 109 Mass. 506 363 Parker v. People, 111 111. 581, 53 Am. Dee. 643 407,418 Parker v. Otis and Gassman, 130 Cal. 322, 62 Pac. 571.. 59, 201 Parks V. State (Ind.), 64 N. E. 862 133, 711 Parrott, Ee, 1 Fed. 481 706 Parsons v. District of Co- lumbia, 170 U. S. 45, 18 Sup. Ct. Eep. 521 620 Parsons v. Trask, 7 Gray 473, 66 Am. Dec. 502 449 Passenger Cases (Smith v. Turner), 7 Howard 283 2, 45, 66, 71, 101, 271, 486, 705 Patapsco Guano Company v. North Carolina Board of Ag- riculture, 171 U. S. 345, 18 Sup. Ct. Eep. 862 75,277 Patterson v. The Eudora, 190 U. S. 169 329,501 Patterson v. Kentucky, 97 U. S. 501 135 Patterson v. Wollman, 5 N. D. 608, 67 N. W. 1040, 33 L. E. A. 536 668 Paul V. Virginia, 8 Wallace 168 79, 342, 716 I'awlet V. Clark, 9 Cranch 292. 596 Paj'ne v. Gould, 74 Vt. 208, 52 Atl. 421 518 Pearce v. Eice, 142 IT. S. 28, 12 Sup. Ct. Eep. 130 200 Pearsall v. Great Northern E. Co., 161 U. S. 646, 16 Suj). Ct. Eep. 705 354, 362 Pearson v. Zehr, 138 ill. 48, 29 N. E. 854, 32 Am. St. Eep. 113 521 Peart v. Meeker, 45 La. Ann. 421, 12 Sou. 490 409 Pedrick v. Baiiey, 12 Gray 161.. 163 Peel Splint Coal Co. v. State, 36 W. Va. 802 320, 735 Peik V. Chicago and North- western Eailway Co., 94 U. S. 164 73, 379 Pembina Con. Silver Mining and Milling Co. v. Pennsyl- vania, 125 U. S. 181, 8 Sup. Ct. Eep. 737 716 Pendleton v. State, 6 Ark. 509 488, 691 Pennsylvania College Cases, 13 Wall. 190 597 Pennsylvania E. Co. v. Eiblot, 66 Pa. St. 164, 5 Am. Eep. 360 629 Pennsylvania v. Standard Oil Co., 101 Pa. St. 119 717 Penrice v. Wallace, 37 Miss. 172 114 Pensacola Telegraph Company v. Western Union Telegraph Company, 96 U. S. 1 79 People V. Adelphi Club, 149 N. Y. 5, 43 N. E. 410, 31 L. E. A. 510, 52 Am. St. Eep. 700 456 People V. Alton, 159 111. 615, 54 N. E. 421 698 People V. Andrews, 115 N. Y. 427, 22 N. E. 128, 6 L. E. A. 128 456 People V. Arcnsberg, 105 N. Y. 123, 11 N. E. 277, 57 Am. Eep. 483 49, 284 People V. Armstrong, 73 ^Mich. 288, 41 N. W. 275, 2 L. E. A. 721, 16 Am. St. Eep. 578. .158, 164 People V. Bellet, 99 Mich. 151, l^yiii TABLE OF CASES CITED. [references are to sections.] 22 L. R. A. (596, 57 N. W. 1094. 41 Am. 8t. Kep. 589 7.S.T Peojile V. Bie.seoker, 169 X. Y. 53, Gl N. E. 990, 57 L. R. A. 178, 88 Am. St. Rep. 534 32 People V. Blooki, 203 111. 363. 67 N. E. 809 162, 576 People V. Board of Assessors of Brooklyn, 85 N. Y. 610 568 Piople V. Board of Railroad Commissioners, 160 N. Y. 202, 54 N. E. 697 401, 659 Peoj-le V. Brady, 40 Cal. 198, 6 Am. St. Rop. 604 693 People V. Bridges, 142 III. 30, 31 N. E. IIT), IG L. H. A. 6S4 419 People V, Brown, 54 Mich. 15.. 108 People V. Budi)raisers, 33 .V. Y. 461 408 Po..ple V. Cannon. 139 N, Y. 32, 34 N. E. 759, 36 Am. St. Rep. fi6S 298 !'• !.Ic V. Carpenter, 1 Mifh. - ; 161 People V. Chiengo & Alton R. «'.., ]:w 111. 175, 22 N. !•;. *•': 39.') i. ido V, Cipperly, 101 N. Y. fl.TI. 4 N. K. 107. 117 I do V. Coli-r, 106 N. Y. 1, . .• .V. K. 71fl. .12 L. R. A. 814, »2 Am. St. Hep. OO."! 310 IV.., do V, Colliwm, 85 Mieh. 105, I" N'. W. 292 419 I'l-.ple V. <''iinp:itfnie floneralf Trnn:. Y. Supp. 571 251 People V. Duke, 19 Miscel. (N. Y.) 292, 44 N. Y'. Suppl. 336.. 346, 352 People V. Ewer, 141 N. Y. 129, 36 N. E. 4, 25 L. R. A. 794. . . 259 People V. Fisher, 14 Wend. 9, 28 Am. Dec. 501 331, 356 People V. Forbes, 4 Park. Cr. Cas. 611 98 People V. Gallagher, 93 X. Y. 438 698 People V. Gastro, 75 Mich. 127, 42 X. W. 937 245 People V. Gillson, 109 X. Y. 389, 17 X. E. 343, 4 Am. St. Rep. 465 198, 293 People V. Girard, 145 X. Y. 105, 39 X. E. 823, 45 Am. St. Rep. 595 32 I'eoi)le V. Gordon, 194 111. 560. 62 X. E. 858 ' 13;i People V. Harper, 91 111. 357 278, 622 People V. Il.isbrouck, 11 Utah 291 711 IVojiIe V. Havnor, 149 X. Y. 195, 43 i\. E. 541, 31 L. R. .\. fi.S9 7;i") IV.. pie V. Hawker, 152 X. Y. 234, 46 X. E. 607 .545 Penplr v. Il:iwkiiis. 157 X. \. 1. 42 L. K. A. I!)0 .-.() lVo,de V. Haw ley. 3 Mich. 330. 5,^6 People V. Hill, 163 111. 186, 46 N. E. 796 270 People V. .TenkiiiH, I Hill, 469.. 72 Peoj)le V. .lenningH (Miidi.). 94 X. W. 210 32, 280 TABLE OF CASES CITED, Lxix [llEFERENCES ARE People V. King, 110 N. Y. 418, 18 N, E. 245, 1 L. R. A. 293, 6 Am. St. Rep. 389.. 389, 694, 695 People V. Lake Shore and Mich- igan Southern R. Co., 52 Mich. 277, 17 N. W. 841.. 631 People V. Lewis, 86 Mich. 273, 49 N. W. 140 177 People V. Lochner, 76 N. Y. Suppl. 396, 73 App. Div. 120, affd. 69 N. E. 373 317, 735 People V. Lowndes, 130 N. Y. 455, 29 N. E. 751 712 People V. McCoy, 125 111. 289, 17 N. E. 786 546 People V. Marx, 99 N. Y. 377, 2 N. E. 29, 52 Am. Rep. 34 62, 147, 283 People V. Melvin, 2 "Wheeler Cr. C. 262 331 People V. Milk Exchange, 145 N. Y. 267, 39 N. E. 1062, 27 L. R. A. 437, 45 Am. St. Rep. 609 347, 355 People V. Miller, 38 Hun 82.. 157 People V. Moses, 65 Hun 161, 20 N. Y. Supp. 9 186 People V. Most, 128 N. Y. 108, 27 N. E. 970, 26 Am. St. Rep. 458 477, 480 People V. Most, 171 N. Y, 423, 64 N. E. 175 477 People V. Muller, 96 N. Y. 408, 48 Am. Rep. 635 237 People V. Naglee, 1 Cal. 232, 52 Am. Dec. 312 706 People V. New York Central and Hudson River Railroad Company, 28 Hun 543 63, 452 I'eople V. New York, Lake Erie & Western R. R. Co., 104 N. Y. 58, 9 N. E. 856, 58 Am. Rep. 484 387, 395 People V. North River Sugar Refining Co., 121 N. Y. 582, 24 N. E. 384, 9 L. R. A. 386, 18 Am. St. Rep. 843 350 People V. O'Brien, 111 N. Y. : TO SECTIONS.] 1, 18 N. E. 692, 2 L. R. A. 255, 7 Am. St. Rep. 684 362 People V. Phippin, 70 Mich. 6, 37 N. W. 888 543, 711 People V. Phyfe, 136 N. Y. 554, 32 N. E. 978, 19 L. R, A. 141. 316 People V. Pierson (N. Y.), 68 N. E. 243 260, 468 People V. Potter, 1 Park Cr. R. 47 104 People V. Pratt, 129 N. Y. 68, 29 N. E. 7 141 People V. Reetz, 127 Mich. 87, 86 N. W. 396 543 People V. Rochester, 45 Hun. (N. Y.) 102 274 People V. Roper, 35 N. Y. 629.. 568 People V. Rosenberg, 138 N. Y. 410, 34 N. E. 285 158 People V. Ruggles, 8 Johns. 290, 5 Am. Dec. 335 465 People V. Russell, 49 Mich. 617, 14 N. W. 568, 43 Am. Rep. 478 288 People V. Sheldon, 139 N. Y, 251, 34 N. E. 785, 23 L. E. A. 221, 36 Am. St. Rep. 690. . . 347 People V. Shurly (Mich.), 91 N. W. 139 52 People V. Smith, 108 Mich. 527, 32 L. R. A. 853 144 People V. Soule, 74 Mich. 250, 4 N. W. 908, 2 L. R. A. 494 . . 456 People V. Taylor, 96 j\Iich. 576, 56 N. W. 27, 21 L. R. A. 287. 248 People V. Thurber, 13 111. 554. . 38 People V. Todd, 51 Hun. 466, 4 N. Y. Supp. 25 202 People V. Trequier, 1 Wh. Cr. C. 142 331 People V. Turner, 55 HI. 280, 8 Am. Rep. 645 260 People V. Vandecarr, 175 N. Y. 440, 67 N. E. 913 652 People V. Vanderbilt, 38 Barb. 282 163 People V. Van Pelt, 90 N. W. 424 419 Ixx TABLE OF CASES CITED. [refekences ake to sections.] People V. Wagener, S6 Mich. 594, 49 N. W. 609, 13 L. E. A. 286, 24 Am. St. Rep. 141 275 People V. Walbritlge, 6 Cow. 512 725 People V. Weissenbach, 60 N. Y. 385 -63 People V. West, 106 X. Y. 293, 12 N. E. 610, 60 Am. Eep. 45'_2 635 People ex rel. Smith v. Allen, 155 111. 61. 39 N. E. 568, 41 L. R. A 473 108 People ex rel. Boenert v. Bar- rett (111.), 67 N. E. 23 108 People ex rel. Linton v. Brook- lyn Heights R. Co., 172 N. Y. 90, 64 N. E. 788 395 People ex rel. Akin v. Butler Street Foundry and Iron Com- pany, 201 111. 236, 66 N. E. 349" 55, 356 People ex rel. Fleischman v. CaMwell, 64 App. Div. 46, 71 N. Y. Suppl. 654, affirmed 61 N. E. 1132, 16S N. Y. 671.. 61, 291 People ex rel. Peabody v. Chi- cago Gas Trust Co., 130 Til. 20s, 22 N. E. 798, 8 L. R. A. 497, 17 Am. St. Hep. 319. .349, 360 People ex rel. Valentine v. Cool- i«lgp, Harien Circuit .Tiidgc, 124 Mich. 664, 50 L. R. A. 493, 83 N. W. 594, S3 Am.^t. Rep. 352 297 PfMipIo OX rel. ForHyth v. Cnurt of HiwxionH of .Monroe County, 141 N. Y. 28S, 30 N. E. 3S6, 23 L. R. A. H56. . 108 I'. i.I«< ex rel. CofTcy V. licilio- ' ralic (ienerai Committee, KM N. V. 335, M N. K. 124, 51 \j. R. A. 674 483 People ex rel. Madden v. Dyck- rr, 72 Apj.. 01 v. CN. \.) 30S. 76 N. Y. Huppl. Ill .60, 293 lo ex rel. RickH V. Kik ...v.r Co., 107 Cn]. 214, 40 Pnr. SSI 418, 419 133 54 10 People ex rel Lawrence v. Fal- lon, 152 N. Y. 12, 46 N. E. 296, 37 L. R. A. 227, 57 Am. St. Rep. 492 194, 195 People ex rel. Healey v. Forbes, 52 Hun. 30, 4 N. Y. Supp. 757 192, 193 People ex rel. St. Board of Health V. Gorden, 194 HI. 5G0, 62 N. E. 858 151 People ex rel. Schwab v. Grant, 126 N. Y. 473, 27 N. E. 964. . 652 People ex rel. Postal Tel Co. v. Hudson River Telephone Co., 19 Abb. N. C. 466 389, 395 Peojde ex rel. State Board of Health v. Lehr, 196 111. 361, 63 N. E. 725 People ex rel. Haekley v. Kelly, 24 N. Y. 74 I'cople ex rel. John Hoy v. Mills, 91 Hun 144, 36 N. Y. Supp. 371 People ex rel. Einsfeld v. Mur- ray, 149 N. Y. 367, 44 N. E. 146, 32 L. R. A. 344 37, 39 People ex rel Lewinsohn v. O'Brien, 176 N. Y. — , 68 N. E. 353 People ex rel. Cartwell v. Ro- chester, 44 Hun. 166 People ex rel. Cantrell v. St. Louis, A. & T. H. R. Co., 176 111. 512, 52 N. E. 292, 35 L. R. A. 656 People ex rel. Cisco v. School Hoard, 161 N. Y. 598, .56 N. E. 81 Pno|>le ex rel. New York, etc., Co. V. Squire, 107 N. Y. 593, 14 N. E. 820, 1 .\iii. St. Uep. 893, 8. C. 145 U. S. 175 575, 622 T'eople ex rel, Br;idley v. Super- intendent Illinois Stat(! Re- f.irmatory, 148 III. 413, 36 N. E. 76 105 People ex rel. Nechnnicus v. War- den of- City Prison, 144 N. Y. 54 468 395 698 TABLE OF CASES CITED. Ixxi [references are to sections.] 529, 39 N. E. 686, 27 L. E. A. 718 646 People of State of New York ex rel. Tyroler v. Warden of the City Prison of City of New York, 157 N. Y. 116, 51 N. E. 1006, 43 L. E. A. 264, 68 Am. St. Eep. 763 61, 291, 673 I'eople ex rel. Sullivan v. Wen- del, 33 Miscel. (N. Y.) 496, 68 N. Y. Suppl. 948 253 People ex rel. City of Chicago v. West Chicago Street E. Co., 203 111. 551, 68 N. E. 78. . .406, 576 People ex rel. Cairo Telegraph Co. V. Western Union Tele- graph Co., 166 111. 15, 46 N. E. 731, 36 L. E. A. 637 395 People ex rel. Copeutt v. Yonk- ers Board of Health, 140 N. Y. 1, 35 N. E. 320, 23 L. R. A. 481, 37 Am. St. Eep. 522. . 521 People 's Building Loan Associ- ation of Saginaw Co. v. Billing, 104 Mich. 186, 62 N. W. 373. . 304 Peoria, etc., E. E. Co. v. Dug- gan, 109 111. 537, 50 Am. Eep. 619 727 Perkins v. St.* Louis and Iron Mountain E. Co., 103 Mo. 52, 15 S. W. 320, 11 L. E. A. 426. 727 Perrine v. Chesapeake & Dela- ware Canal Co., 9 How. 172. . . 375 Pervear v. Commonwealth of Massachusetts, 5 Wall. 475... 81 Petit V. Minnesota, 177 U. S. 164 735 Pettis V. Johnson, 56 Ind. 139. 162, 163 Phalen v. Virginia, 8 How. 163 563, 579 Phelps V. Eacey, 60 N. Y. 10, 19 Am. Eep. 140 419, 516 Philadelphia v. Brabender, 201 Pa. 574, 51 Atl. 374, 58 L. E. A. 220 164 Philadelphia and Southern Mail S. S. Co. V. Pennsylvania, 122 U. S. 326 717 Philadelphia Fire Association v. New York, 119 U. S. 110 716 Philadelphia, W. & B. E. Co. v. Bowers, 4 Houst. 506 571,572 Phoenix Insurance Co. v. Levy, 12 Tex. Civ. App. 45, 33 S. W.' 992 501 568 200 395 456 323 99 363 Phoenix Insurance Co. v. Ten- nessee, 161 U. S. 174 Pickering v. Cease, 79 111. 328. . Pickford v. Grand Junction R. Co., 10 M. & W. 399 Piedmont Club v. Common- wealth, 87 Va. 540, 12 S. E. 963 Pierce v. Whittlesey, 58 Conn 104 Pinkerton v. Verberg, 78 Mich 573, 44 N. W. 579, 7 L. E. A 507, 18 Am. St. Eep. 473 Fiqua Branch of State Bank v. Knoop, 16 How. 369 Pitts V. Lancaster Mills, 13 Mete. 156 425 Pittsburg and Southern Coal Company v. Louisiana, 156 U. S. 590 75, 274 Pittsburg, C. C. & St. L. R. Co. V. Montgomery, 152 Ind. 1, 49 N. E. 582, 71 Am. St. Eep. 300 715 Plant V. Woods, 176 I\Iass. 492, 57 N. E. 1011, 51 L. R. A. 339, 79 Am. St. Rep. 330 333, 336 Platte and D. Canal & Milling Co. V. Dowell, 17 Col. 376, 30 Pac. 68 362 Plessy V. Ferguson, 163 U. S. 537 63, p. 59, 610, 697, 699 Pleuler v. State, 11 Neb. 547, 10 N. W. 481 564 Plumb V. Christie, 103 Ga. 6S6, 30 S. E. 759, 42 L. R. A. 181.. 218.667 Plumley, Re, 156 Mass. 236, 30 N. E. 1127, 15 L. R. A. 839. . 284 Ixxii TABLE OF CASES CITED. [references are to sections.] 209 700 88 Plumley v. Massachusetts, 155 U. S. 461 49, 62, 77, 84, 271, 284, 295 Pocopson Road, 16 Pa. St. 15. . 427 Polak V. San Francisco Orphan Asylum, 48 Cal. 490 166 Pollar.rs Appeal, 127 Pa. St. 507, 17 Atl. 1087 Polly Gray v. State, 4 Oh. 353. . Pond V. The People, 8 Mich. 150 Pooling Freights, In Ke, 115 Fed. 5S8 55 Porter v. Ritch, 70 Conn. 235, 39 Atl. 169, 39 L. R. A. 353. . 252 Portland v. Bangor, 65 Me. 120, 20 Am. Rep. 681 98, 244 Portland & R. R. Co. v. Decr- ing, 78 Me. 61, 2 .Atl. 670, 7^7 Am. Rep. 784 631 Port Royal Mining Co. v. Ha- good, 30 S. C. 519, 9 S. E. 686, 3 L. R. A. 841 644 Post V. W.il, 11.'-. X. Y. 361, 22 N. E. 14.'-), 5 1.. U. A. 422, 12 Am. St. Rep. 809 590 Potter V. Collins, 156 N. V. Hi, 60 N. E. 413 576 Pottfl V. Broon, 167 111. 67, 47 \. K. 81. r.'.t Am. St. IJrp. 262. 111,117 Pound V. Tnrrk, 95 U. S. 459. . . 72 Powell V. Comnuinwfultli, 114 Pa. Ht. 28.';. 7 .\fl. 913, 60 Am. R4«p. .150 r,:, I 17, 283,541 Powell V, PfiirixylvHiiiii, 127 U. H. 678..0'J. 69, H4. 134. 137, 28.3, 541 PowHI V, State. 69 Ala, 10. )rt4 Powem V. Commonwealth, 90 Ky. 167, 13 a W, 4.'50 454 Prntt V. HutrhinNon, 15 East 511 481 Prntt », Tcfft, 14 Mich, 191 709 Prorngntlvp, Cnmp of the, 12 B^T- 1 ■ . r,:\{ Prc^iby V. Klirkitiit ("o,. 5 Wanh. 3:J>, 31 '• -zr, r.i.i 214 36i Prescott V. State, 19 Ohio St, 184, 2 Am. Rep. 388 261 Presser v. Illinois, 116 U. S. 252 91 Preston, Re, 63 Oh. St. 428, 59 N. E. 101, 52 L. R. A, 588.378, 394 Preston v. Drew, 33 Me. 558, 54 Am. Dec. 639 539 Price V. People, 193 111. 114, 61 N. E. 844, 55 L, R. A. 588, 86 Am. St. Rep. 306 287, 328 Priewe v. Wisconsin State Laud & Inipl. Co., 93 Wis. 534, 67 N. W. 918, 33 L. R. A. 645 408 Prohibitory Amendment- Cases, 24 Kan. 700 Proprietors of Bridges v. Hobo- ken Land & Improvement Co., 1 Wall. 116 Proprietors of Mills v. Brain- tree Water Supply Co., 149 Mass. 478, 21 N. E. 761, 4 L. R. A. 272 425 Proprietors of Mount Hope Cenu'tory v. Boston, 158 Mass. 509, 33 N. E. 695, 35 Am. St. Rep. 515 512 Prosser v. Wapello Co., 18 la. 327 • 668 Provident Saving Life Aasoci- .-ition Society v. Cutting, 181 Mass. 261, 63 N. E. 433 716 Pryor, Re. 55 Kan. 724, 41 Pac. 958. 29 L. R. A. 398, 49 Am. St. Hrp. 280 374 Pnitt V. County Commissioners, 94 N. C, 709. 55 Am. Rep, 638 698 I'lilltnjiii I'.'il.Mce Car Co, v, Mis- Houri Pa.ifii- R, Co., 115 U, S. 587 395 Punly V, Erie R. Co,, 162 N. Y. 42. 56 N. E. 508, 48 L, R. A, 669 393 I'limpclly V. CrfMii Bay, etc., Co., 13 Wall. 166 409, 410, 508 Pye V. Poterson, 11 Tex, 312,,, 141 QiinckenhuHli v, Wisconsin, etc, R. Co., 62 Wis. 411. 22 N. W. TAULK OF CASES CITED. Ixxiii [references ark to SKCTIONS.J 519; same case, 71 Wis. 472, 37 N. W. 384 629 Quartimas v. State, 48 Ala. 269. 240 Queen Insurance Co. v. State, 86 Tex. 250, 24 S. W. 397, 22 L. K. A. 483 340 Quincy v. Bull, 106 III. 337 576 Quincy v. Kennard, 151 Mass. 563, 24 N. E. 860 644 Quinn v. Leathern, L. K. 1901 A. C. 495 334 Quintini v. Bay St. Louis, 64 Miss. 483, 1 So. 625 178 Eabe v. State, 39 Ark. 204 221 Eagan & Buffet v. Aiken, 9 Lea (Tenn.) 609, 42 Am. Rep. 684. 392 Eahrer, Petitioner, In re, 140 U. S. 545 76 Railroad Commission Cases, 116 U. S. 307 63, p. 60, 363, 380 Railroad Commissioners v. Port- land, 63 Me. 269, 18 Am. Rep. 208 363, 395 Eailroad Co. v. Iowa, 94 U. S. 155 362 Railway Co. v. Sharpe, 38 Oh. St. 150 629 Ramsdale v. Foote, 55 Wis. 557, 13 N. W. 557 413 Ramsey v. People, 142 111. 380, 32 N. E. 364, 17 L. R. A. 853. 394 Randolph v. Builder's, etc., Supply Co., 106 Ala. 501, 17 Sou. 731 727 Rapier, In re, 143 U. S. 110 198 Raritan, etc., R. Co. v. Dela- ware, etc., Canal Co., 18 N. J. Eq. 546 660 Rasmussen v. Idaho, 181 U. S. 198 77, 136, 138 Raudenbusch, Re., 120 Pa. St. 328, 14 Atl. 148 210, 651 Reade v. Conquest, 9 C. B. (N. S.) 755 663 Reagan v. Farmers' Loan and Trust Company, 154 U. S. 362. 63, p. 60, 383, 384, 611, 612 Kcod 's Appeal, 114 Pa. St. 452, 6 Atl. 910 (,-y] Reetz V. Michigan, 188 U. S. 505 543, 647 Reg. V. Ashton, 1 E. & B. 286. . IK'.) Reg. V. Downes, 13 Cox C. ('. Ill 4C„ Reg. V. Hieklin, 11 Cox Crim. Cases, 19 237 Reg. V. Most, L. R, 7 Q. B. D. 244 477 Reg. V. Tolson, L. R. 23 Q. B. Div. 168 635 Reg. V. Tuchin, Holt, 424 475 Reg. V. Walsall Justices, 3 C. L. R. 100, 3 Wkly. Rep. 69 208, 210, 672 Regents, etc., v. Williams, 9 G. & J. (Md.) 365, 31 Am. Dec. 72 361 Reid V. Colorado, 187 U. S. 137 77, 136, 13S Reining v. New York, Lake Erie & Western R. Co., 128 N. Y. 157, 28 N. E. 640, 14 L. R. A. 133 510 Reinken v. Fuehring, 130 Ind. 382, 30 N. E. 414, 15 L. R. A. 624, 30 Am. St. Rep. 247 620 Republic Iron & Steel Co. v. State (Ind.), 66 N. E. 1005... 320 Respublica v. Dennie, 4 Yeates 267, 2 Am. Dec. 402 471, 474 Respublica v. Duquet, 2 Yeates (Pa.) 483 141 Respublica v. Sparhawk, 1 Dall. 357 518, 534, 536 Revell V People, 177 111. 468, 52 N. E. 1052, 43 L. R. A. 790, 69 Am. St. Rep. 257 408 Rex V. Carlile, 6 C. & P. 636. . . . 168 Rex V. Dean of Asaph, 3 T. R. 428 471 Rex V. Pasmore, 3 T. R. 199.. 361 Rex V. Webb, 14 East. 406 481 Rex V. Young and Pitts, 1 Burr. 556 654 Reynolds v. Plumbers* Mate- rial Protective Association, 30 Lxxiv TABLE OF CASES CITED. [references are to sections.] Miscel. (X. Y.) 709, 63 X. Y. Suppl. 303 301 Reynolds v. State, 73 Ala. 3 454 Fcvnolds V. United States. 98 U. S.' 145 460, 467,468 Rhodes v. Iowa, 170 U. S. 412. 76, 81, 232 Rice y. Foster, 4 Harrington (Del.) 479 217 Rice V. Winslow, 180 Mass. 500, 62 N. E. 1057 201 Riihardson v. Buhl, 77 Mich. 632, 43 X. W. 1102, 6 L. R. A. 457 353 Richmond, City of, v. Dudley, 129 Ind. 112, 28 N. E. 312, 13 L. R. A. 5,S7, 28 Am. St. Rep. 180 643 Richmond v. Foss, 77 Me. 590, 1 Atl. 830 274 Richmond and Alleghany Rail- road Company v. Patterson To- bacco Co., 169 U. S. 311 73, p. 69. 73. p. 70 Rickart v. People, 79 III. 85 456 Rideout V. Kimx et al., 148 MasH. .30S, 19 X. E. 390, 2 I.. R. A. 81, 12 Am. St. Rep. 500 63, p. 59, 182,426 Bider v. United States, 178 U. S. 251 407,519 Rinney v. Chicago, 102 III. 64. 508 Rippe V. Becker, 56 Minn. 100, 57 N. W. 331, 22 L. R. A. 857. 060 Ritchin V. The People. 155 111. 98, 40 N. E. 454, 29 L. R. A. 79. 46 Am. 8t, Rep. 315 30. 313. 735 liiMT Renderlnjf Co. v. Behr, 77 Mo. 91, 46 Am. Rep. 522 Rohliinii V. Shelby Cfninly Tax- Oi^lrlet, 120 V. S. 4«9. . 74. 79, 294, '295, 718 pr.Scr«nn V. Wtnfe. 42 Fin. 233. \.. R. A. 751.. 90 Itul^rl V. P.. will. lOH N. Y. 411, 01 N. E. 099, 55 T,. t? a 775, 85 Am. St. Rop. 07:! . . 102 Roberts v. Boston, 5 Cush. 198. Robertson v. Baldwin, 165 U. S. 275 329, Robertson v. Commonwealth, 101 Ky. 285, 40 S. W. 920 Robinson's Case, 131 Mass. 376, 41 Am. Rep. 239 Robinson, Clerk, v. Hamilton, 60 la. 134, 46 Am. Rep. 63. .44, Robinson v. Mayor and Alder- men of Franklin, 1 Humph. (Tenn.) 156, 34 Am. Dec. 625. Robison v. Miner, 68 Mich. 549 210, Roby V. Smith, 131 Ind. 342, 30 X. E. 1003, 15 L. R. A. 792, 31 Am. St. Rep. 439 706, Rochester v. West, 164 N. Y. 510, 58 N. E. 673, 53 L. R. A. 518, 79 Am. St. Rep. 659... 118, 147, Rockwell V. Nearing, 35 X^. Y. 302 Rogers v. .Tones, 1 Wend. 237, 19 Am. Dec. 493 Rogers Park Water Co. v. Fer- gus, 178 111. 571, 53 X. E. 363. Rogers Park Water Co. v. Fer- gus, 180 U. S. 624 Rohan v. Sawin, 5 Cush. 281 .. . Rosedalo, Town of v. TT.iiiiier, 157 Ind. .390, 61 X. H. 7!t2. . Roseiiliiunii v. Xewbeni, lis X'^. C. 83, 32 L. R. A. 123 Rosenbloom v. State of X'^e- Ijra.-^ka, 57 L. R. A. 922. 89 X. W. 1053 37. 2S9. Rossmiller v. Slate, 1 1 1 \\'is. 169, S9 X. W. s;{!», r.S L. H. A. 93 Rowe V. Yuba Co., 17 Cil. (il . Rowj.'ind V. Cily of fireenciHtle, 157 Ind. 707, 62 X. E. )7t, 58 N. !•;. Ki:?! Roxbury v. Boston & M;iitn' R. Co.. CuHh. 424 Ruch V. Xew Orleann, 43 La. Ann. 275, 9 So. 473 610 451 170 702 613 37 651 709 182 168 712 571 571 87 108 i:?o 417 613 33 363 409 TABLE OF CASES CITED, Ixxv [references are to sections.] Rucker v. State, 67 Miss. 328, 7 So. 223 186 Ruggles V. Illinois, 108 U. S. 526 362, 363, 379, 570 Ruggles V. Nantucket, 11 Cush. 433 534 Ruhstrat v. People of State of Illinois, 185 111. 133, 57 N. E. 41, 49 L. R. A. 181, 76 Am. St. Rep. 30 63, p. 59, 183, 729 Rumsey v. New York & N. E. R, Co., 133 N. Y. 79, 30 N. E. 654, 15 L. R. A. 618, 28 Am. St. Rep. 600 408 Rundle v. Delaware & Raritan Canal Co., 14 How. 80 576 Rushville v. Rushville Natural Gas Co., 132 Ind. 575, 28 N. E. 853, 15 L. E. A. 321 372 Russell V. New York, 2 Den. 461 534 Rust V. Low, 6 Mass. 90 444 Ruth, Re, 32 Iowa 250 651 Ryall V. State, 78 Ala. 410 221 Ryers, Re, 72 N. Y. 1, 28 Am. Rep. 88 442 Ryerson v. Brown, 35 Mich. 333, 24 Am. Rep. 564 412 Sacramento, City and County, v. Crocker, 16 Cal. 119 38 Sadler v. Langham, 34 Ala. 311 427 Sage V. Mayor of New York, 154 N. Y. 61, 47 N. E. 1096, 38 L. R. A. 606, 61 Am. St. Rep. 592 408 Salem v. Eastern R. Co., 98 Mass. 431, 96 Am. Dec. 650.. 521 St. Anna 's Asylum v. New Or- leans, 105 U. S. 362 St. Joseph V. Harris, 59 Mo App. 122 St. Joseph, City of, v. Levin, 128 Mo. 588, 31 S. W. 101, 49 Am. St. Eep. 577 43, 53 St. Louis V. Bell Telephone Co., 96 Mo. 623, 10 S. W. 197, 2 L. R. A. 278, 9 Am. St. Eep. 370 374 St. Louis V. Dorr et al., 145 Mo. 568 225 466, 41 S. W. 1094, 42 L. R. A. 686, 68 Am. St. Rep. 575.23, 181 St. Louis V. Fischer, 167 Mo. 654, 67 S. W. 872 644 St. Louis V. Heitzeberg Packing & Provision Co., 141 Mo. 375, 42 S. W. 954, 39 L. R. A. 551, 64 Am. St. Rep. 516 177 St. Louis, City of, v. Hill, 116 Mo. 527, 22 S. W. 861, 21 L. R. A. 226 23, 34, 181, 514, 613 St. Louis V. Meyrose Lamp Mfg. Co., 139 Mo. 560 654 St. Louis V. Russell, 116 Mo. 248, 22 S. W. 470, 20 L. E. A. 721 645 St. Louis V. Webber, 44 Mo. 547 641 St. Louis V. Western Union Tel. Co., 148 U. S. 92 165 St. Louis & San Francisco R. Co. V. Gill, 54 Ark. 101, 15 S. W. 18, 11 L. R. A. 452. . . . 384 St. Louis and S. F. E. v. Gill, 156 U. S. 649 551 St. Louis and San Francisco E. Co. V. James, 161 U. S. 545.. 718 St. Louis and San Francisco E. Co. V. Mathews, 165 U. S. 1 . . . 630, 727 St. Paul V. Gilfillan, 36 Minn. 298, 31 N. W. 49 177 St. Tammany Water Works Co. V. New Orleans Water Works Co., 120 U. S. 64 679 Salem v. Manyes, 123 Mass. 372 556 Salt Co. V. East Saginaw, 13 Wall. 373 568 Samuels v. County of Dubuque, 13 Iowa 536 613 Sanborn v. Benedict, 78 111. 309 199 San Diego Land &c. Co. v. Na- tional City, 174 U. S. 739 552 San Diego Water Co. v. San Diego, 118 Cal. 556, 50 Pac. 633, 38 L. E. A. 460, 62 Am. St. Eep. 261 382, 553 Sands v. Manistee Eiver Im- provement Co., 123 U. S. 288.. 661 Ixxvi TABLE OF CASES CITED. Sanford v. St. -'78 . [references are to sections.] Catawassa, 24 Pa. 395 Santo V. State, 2 Iowa 165, 63 Am. Dec. 487 -'U Sarrls v. Commonwealth, 83 Ky. 327 59, 222, 223 Savannah v. Mulligan, 95 Ga. 323, 22 S. E. 621, 29 L. R. A. 303, 51 Am. St. Rep. 86 521 Savannah and Ogeechee Canal Co. V. Shuman, 91 Ga. 400, 17 S. E. 937. 44 Am. St. Rep. 43. 63, p. 61 Sthaezliu et al. v. Cabaniss, Jii.lge, 135 Cal. 466, 67 Pac. 755. N7 Am. St. Rep. 122 34 Sthehr v. Detroit, 45 Mich. 626, 7 N. W. 799 427 Srhenck v. Union Pacific Co., 5 Wyu. 43(1, 4(t Pac. 840 629 Schlaudecker v. Marshall, 72 Pa, St. 20U 209 Sohoen Hrothers v. City of At- lanta, 97 C.a. 697. 25 S. E. 380, 33 L. H. .\. Mil 34,522 S<-holle v. State, 90 M.l. 729, 50 L. K. A. 411, 46 Atl. 326 673 B<-hollcnl»erger v. Pennsylvania, 171 U. 8. 1 . . .62, 69. 77, 84, 137, 145, 147, 283 Bchool TruHtees v. Tatnian, 13 111. 27 668 8<-hultr. v, HyorH, 53 N. .1. Law IIJ. 22 All. 514. 13 L. R. A. "<•.•, 26 Am. St. Kep. 435 424 iiachiT ft ul. V. The City of N.»w Yi.rk. lOfi .\. Y. 103. 59 ' K. 773 47 I'l.r.w V. Chicago, 68 111. •HI 58:' 8rotl V. DonnM. 165 U. 8. 58. . . 76, 82, 233 • t. 7 iVt. 590 ri70 ;<, 39 (}a. 321 697 f'.n. Re. fi III. 161 r.iW Whoolrr, 179 U. 8. 141 . ,404, 40H, 509 320 20 Scrip Bill, Re, 23 Colo. 504, 48 Pac. 512 Sears v. Cottrell, 5 Mich. 251.. Sears v. Gallatin County, 20 Mont. 462, 52 Pac. 204, 40 L. R. 405 614 Seidenbender v. Charles, 4 S. & R. 151, 8 Am. Dec. 682 197 Selden v. Overseers, 11 Leigh. 132 , 594 Selectmen v. Murray, 16 Pick. 121 141 Senate of Happy Home Club v. Alpena Co., 99 Mich. 117, 57 N. W. 1101, 32 L. R. A. 144. . 227 Sentell v. New Orleans & C. R. Co., 166 U. S. 698 421, 526 Sessions v. Crunkleton, 20 Oh. St. 349 442 Shaffer v. Union Mining Co., 55 Md. 74 320 Shanley v. Wells, 71 111. 78 99 Shejtpprd v. Sumpter County Commissioners, 59 Ga. 535, 27 Am. Rep. 394 328 Sherlock v. Stuart, 96 Mich. 193, 55 X. W. 845, 21 L. R. A. 580. 210, 651 Sherman v. Baker, 20 R. I. 446, 40 Atl. 11, 40 L. R. A. 717 ... 369 Sherman v. Buick, 32 Cal. 241, 91 Am. Dec. 577 427 Sherman v. Sherman, 18 R. I. 504. 30 Atl. 459 576 Slii'rman v. Sinitli, 1 Black, 587. 567 Shields v. Ohio, 95 U. S. 319. . 362, 363 Shiiili-y v. I-'ifty Associates, lOfi Mass. 194, 8 Am. Rep. 318 . . . 616 Shi])nian v. State Live Stock (!omml8HionorH, 115 Mich. 488, 73 N. W. 817 521 Shirk v. La Fayette, 52 Fed. 857 706 Shively V. Bowlby, L52 U. S. 1. 403 Sliohcrt, e.\ parte, 70 Cal. 632, I 1 Pac. 786, 59 Am. W. p. 132. . 198 Short V. Mnllion, etc., Co., 20 TABLE OF CASES CITED. Ixxvii [references are to sections.] Utah 20, 57 Pac. 720, 45 L. K. A. 603 155,316 Shreveport v. Levy, 26 La. Ann. 671, 21 Am. Rep. 553 470 Shrieve v. Stokes, 8 B. Mon. (47 Ky.) 453, 48 Am. Dec. 401 ... 424 Shriver v. Stephens, 20 Pa. St. 138 444 Shuman v. City of Ft. Wayne, 127 Ind. 109, 26 N. E. 560, 11 L. R. A. 378 38 Siebold, Ex Parte, 100 U. S. 371 65 Sifers v. Johnson, 7 Idaho 798, 65 Pac. 709, 54 L. R. A. 785. . 171 Sigel V. Jebb, 3 Stark. 1 192 Simon v. Craft, 182 U. S. 427. . . 252 Simon's Executors v. Gratz, 2 Pa. 412 469 Sinclair v. State, 69 N. C. 47. . 710 Sing Lee, Ex Parte, 96 Cal. 354, 31 Pac. 245, 24 L. R. A. 195, 31 Am. St. Rep. 218 645 Singer v. Maryland, 72 Md. 464, 19 Atl. 1044, 8 L. R. A. 551. . 646 Singer Mfg. Co. v. Fleming, 39 Neb. 679, 58 N. W. 226, 23 L. R. A. 210 301 Sinking Fund Cases, 99 U, S. 727 363 Sinnot v. Davenport, et als., Commissioners of Pilotage of Bay and Harbor of Mobile, 22 How. 227 41 Sinsheimer v. United Garment Workers, 77 Hun. 215, 28 N. Y. Supp. 321 326 Sioux Falls V. Kirby, 6 S. D. 62, 60 N. W. 156, 25 L. R. A. 621. 643 Skaneateles, etc., Water Com- pany V. Skaneateles, 161 N. Y. 154, 46 L. R. A. 687, 55 N. E. 562 677, 701 Skaneateles, etc., Water Com- pany V. Skaneateles, 184 U. S. 354 677, 701 Slaughter House Cases, 16 Wall. 36 ....219, 577, 609, 669, 671, 680 Slosser v. Salt River Valley Canal Co. (Ariz.), 65 Pac 332 ...417 Smiley v. McDonald, 42 Neb. 5, 60 N. W. 355, 27 L. R. A. 540, 47 Am. St. Rep. 691 670 Smith, Ex Parte, 38 Cal. 702, 244, 703 Smith, Ex Parte, 135 Mo. 223, 68 S. W. 628, 33 L. R. A. 606, 58 Am. St. Rep. 576 457 Smith, Re, 146 N. Y. 68, 40 N. E. 497, 28 L. R. A. 820, 48 Am. St. Rep. 769 446 Smith V. Alabama, 124 U. S. 465 73, 116 Smith V. Arnold, 106 Mass. 269. 274 Smith V. Brooklyn, 160 N. Y. 357, 54 N. E. 787, 45 L. R. A. 664 425 Smith V. Chamberlain, 38 S. C. 529, 17 S. E. 371, 19 L. R. A. 710 695 Smith V. Johnson, 76 Pa. St. 191 444 Smith V. Lane, 24 Hun 632 .. . 133 Smith V. Maryland, 18 How. 71. 525 Smith V. People, 65 111. 375 252 Smith V. Rochester, 92 N. Y. 463, 44 Am. Rep. 393 408 Smith V. St. Louis and South- western Railway Co., 181 U. S. 284 77, 136, 138 Smith V. State, 155 Ind. 611, 58 N. E. 1044, 51 L. R. A. 404.516, 635 Smith V. State, 100 Tenn. 494, 46 S. W. 566, 41 L. R. A. 432. . 699 Smith V. Turner (Passenger Cases), 7 How. 283 2, 45, 271 Smyth T. Ames, 169 U. S. 466. . 73, 384, 550, 553, 554, 611 Snell, In re, 58 Vt. 207 193 Snell V. Cincinnati Street R. R. Co., 60 Oh. St. 256, 54 N. E. 270 714 Snow V. Parsons, 28 Vt. 459, 67 Am. Dec. 723 425 Soby V. People, 31 111. App. 242 202 Ixxviii TABLE OF CASES CITED. [refekexces are to sections.] Society for the Prop, of the Gos- pel V. New Haven, 8 Wh. 464. . Soon Hing v. Crowley, 113 U. S. 703 ''-^> Soper V. Harvard College, 1 Pick. 177, 11 Am. Dec. 159 .. Soules V. Robinson, 158 Ind. 97, 60 N. E. 726, 6-2 N. E. 999.. South Covington &c. Street Car Co. V. Berry, 93 Ky. 43, 15 L. K. A. (3ti4 South and North Alabama E. Co. V. Morris, 65 Ala. 193 South Eastern Ry. Co. v. Railway Commissioners, L. P. 6 g. B. Div. 5S6 Sparf V. United States, 156 U. S. 129 Specht V, Commonwealth, 8 Pa. St. 312, 49 Am. Dec. 518 . 185, Spencer, Town of v. Andrew, 82 la. 14, 47 N. W. in07, 12 L. R. A. 115 16.3, 581 Spies V. People, 122 III. 1, 12 N. E. 865, 17 N. E. 898, 3 Am. St. Rep. 320 476, Spiller V. Wnburn, 12 Allen, 127 Spinney, Ex Parte, 10 Nev. 323. 646, 6S4, Spmijfue et als. v. Thompson, 118 r. S. 90 72, 117, Hprinjr v. Hydo Park, 137 Mass. .',.'■•4, .''.0 Am. R.'p. 334 .508, 511, BprinK Valley Water Wurks v. '.no IT. R. 347 Hj. K ^'1, City of, V. Jacobs, 7.T S. W. 1097 8prinKfl«'ld v. RprinKfioId Sfroot R. Co., 182 MnM. 41, 04 N. E. 595 736 267 252 116 727 395 473 470 477 463 711 135 512 376 292 HpHnjfflcId R. Co. r. Springfield, Mo. 017 ' '■ ". Wall. 119 y, 26 Me, 191. Htanlon v. Allen, ii Denlo (N. Y.) 43<. 49 Am. Dor. 282. .347, HUrk V. Millor. 3 .Mo. 470 ntaU V. Adnms, 44 Mo. 570.507, 576 576 590 567 :\r,i 608 599 State V, Addington, 2 Bailey L, 516, 23 Am. Dec. 150 104 State V. Addington, 77 Mo. 110. 284, 541 State V. Addy, 14 Vroom 113, 39 Am. St. Rep. 547 108 State V. Allmond, 2 Houst. (Del.) 612 214, 515,539 State V. Ambs, 20 Mo. 214 470 State V. Armstrong, 106 Mo. 395, 16 S. W. 604, 13 L. E. A. 419, 27 Am. St. Rep. 361 301 State V. Austin Club, 89 Tex. 20, 33 S. W. 113, 30 L. R. A. 500. . 456 State V. Bailey, 157 Ind. 324, 61 N. E. 730 264 State V. Barge, 82 Minn. 256, 84 N. W. 911, 53 L. R. A. 428 244. 526, 542 State V. Barnes, 32 S. C. 14, 10 S. E. 611, 6 L. R. A. 743, 17 Am. St. Rep. 832 104 State V. Beardsley, 108 la. 396, 79 N. W. 138 407 State V. Benadom, 79 la. 90, 44 N. W. 218 223 State V. Bordetta, 73 Ind. 185, 38 Am. Rep. 117 162 State V. Berlin, 21 S. C. 292, 52 Am. Rep. 677 688 State V. Bi'swick, 13 R. I. 211, 43 Am. Rep. 26 96 State V. Billings, 55 Minn. 467, 57 N. W. 794, 43 Am, St. Rep. 525 254 State V. Board of Commissioners of Polk County, 87 Minn. 32.'). 441 State V. Boar.I of Health of St. Louis, 16 Mo. App. 8 176, 520 State V. Bogardus, 4 Mo. Apj). 215 249 State V. Bohcmier, 96 Me. 257, 52 Atl. 6):i 711 State V. Bonner, 2 Head. 135.. 722 State V. Boston Club, 45 La. Ann. .WS, 12 So. 895, 20 L. R. A. 185 456 TABLE OF CASES CITED. Ixxix [references are to sections.] 720 32 State V. Botkin, 71 Iowa 87, 32 N. W. 185, 60 Am. Eep. 780. 246, 722 Steele v. Brannan, 41 L. J. M. C. 85 .. 237 State V. Brennan 'a Liquors, 25 Conn. 278 218 State V. Brown, 31 Me. 522 223 State V. Brunell, 29 Wis. 435.. 245 State V. Burgdoerfer, 107 Mo. 1, 17 S. W. 646, 14 L. R. A. 846. 729 State V. Burgoyne, 75 Tenn. 173, 40 Am. Eep. 60 564 State V. Buswell, 40 Neb. 158, 58 N. W. 728, 24 L. R. A. 68 133, 468 State V. Cadigan, 73 Vt. 245, 50 Atl. 1079, 57 L. R. A. 666, 87 Am. St. Rep. 714 State V. Campbell, 64 N. H. 402, 13 Atl. 585, 10 Am. St. Rep. 419 State T. Carey, 4 Wash, 424, 30 Pac. 729 152 State V. Cassidy, 22 Minn. 312, 21 Am. Rep. 765 623 State V. Gate, 58 N. H. 240. .175, 464 State V. Certain Intoxicating Liquors and Cummings, Claim- ant, 76 la. 243, 41 N. W. 6, 2 L. R. A. 408 32 State V. Chandler, 2 Harr. 533. 465 State V. Chandler, 5 La. Ann. 489, 52 Am. Dec. 599 90 State V. Chicago, Milwaukee & Saint Paul R. Co., 68 Minn. 381, 71 N. W. 400, 38 L. R. A. 672, 64 Am. St. Rep. 482 397 State V. Cincinnati, 19 Oh. 178. 698 State V. City of New Orleans, 27 La. Ann. 521 123 State V. Claiborne, 19 Tenn. 331 691 State V. Clarke, 54 Mo. 117 245 State V. Conlon, 65 Conn. 478, 33 Atl. 519, 31 L. R. A. 55, 48 Am. St. Rep. 227 653 State V, Consadine, 16 Wash. 358, 47 Pac. 755 703 State V. Corbett, 57 Minn. 345, 59 N. W. 317, 24 L. R. A. 498. 61,291 State V. Corrigan Cons. St. R. Co., 85 Mo. 263, 55 Am. St. Rep. 361 r,7G State V. Corson, 67 N. J. L. 178, 50 Atl. 780 712 State V. Creditor, 44 Kan. 565, 24 Pac. 346, 21 Am. St. Rep. 300 684, State V. Creeden, 78 la. 556, 43 N. W. 673, 7 L. R. A. 295.... State V. Crescent Creamery Com- pany, 83 Minn. 284, 86 N. W. 107, 54 L, R. A. 466, 85 Am. St. Rep. 464 State V. Cullins, 53 Kans. 100, 36 Pac. 56, 24 L. R. A. 212 State V. Dalton, 22 R. I. 77, 46 Atl. 234, 48 L. R. A. 775, 84 Am. St. Rep. 818 60, 198, State V. Davis, 108 Mo. 666, 18 S. W. 894, 32 Am. St. Rep. 640 State V. Divine, 98 N. C. 778, 4 S. E. 477 637, State V. Donaldson, 32 N. J. L. 151, 90 Am. Dec. 649 State V. Donaldson, 41 Minn. 74, 42 N. W. 781 149, State V. Duffy, 7 Nev. 342, 8 Am. Rep. 713 State V. Dupaquier, 46 La. Ann. 577, 15 So. 375, 26 L. R. A. 162, 49 Am. St. Rep. 334 State V. Easton Social Club, 73 Md. 97, 20 Atl. 783, 10 L. R. A. 64 State V. Edens, 85 N. C. 522.33, State V. Edwards, 86 Jle. 102, 29 Atl. 947, 25 L. R. A. 505, 41 Am. St. Rep. 528 376, 378 State V. Essex Club, 53 N. J. L. 99, 20 Atl. 769 456 State V. Fagan, 22 La. Ann. 545 669 State V. Fairfield, 37 Me. 517. . 539 State V. Fire Creek Coal & Coke Co., 33 W. Va. 188..320, 735 711 231 32 722 293 53 688 331 650 698 519 456 168 Lxxx TABLE OF CASES CITED. [references are to sections.] 29: '35 231 State V. Fiske, 9 R. I. 94 643 State V. Fleming, 32 Kans. 588, 5 Pac. 19 223 State V. Forcier, 65 N. H. 42, 17 Atl. 577 646 State V. Foster, 22 E. I. 163, 46 Atl. 833, 50 L. R. A. 339. .58, p. 53 State V. Foster, 21 R. I. 251, 43 Atl. 66. 50 L. R. A. 339 State V. Frederick, 45 Ark. 347, 55 Am. Rep. 555 State V. Fulker, 43 Kan. 237, 22 Pac. 1020, 7 L. R. A. 183 State V. Gallagher, 4 Mich. 244. 214 State V. Garbroski, 111 la. 496, 56 L. R. A. 570, 82 Am. St. Rep. 524 497, 732 State V. Gardner, 58 Oh. St. 599, 41 L. R. A. 689, 51 N. E. 136, 65 Am. St. Rep. 785 493, 497, 646, 732 State V. Gerhardt, 145 Ind. 439, 44 X. E. 469. 33 L. R. A. 313. . 52 State V. Gibson, 36 Ind. 389, 10 Am. Rep. 42 State V. Gilliland, 51 W. Va, 27H, II S. !•:. 131, 57 T,. R. A, 126, 90 Aim. St. Rop. 79.? State V. Goodwill, 33 W. Va. 179, 10 S. E. 28.5, 6 L. R. A. 621, 25 Am. St. Rep. 863. . .320, 735 State V. Gravett, 65 Ohio State :M», 62 N. E. 325, 55 L. R. A. 791. 87 Am. St. Rep. 605. . .152, .546 State V. Green, 112 Ind. 462, 14 N. E. 352 711 Stale V. GroRory, 83 Mo. 123, 53 Am. Rpp. 565 647 Stale V. Grit7.n«T, 1.^4 Mo. 512, .16 S. W, .39 201 State V. GuinneiiN, 16 R. I. 401, 16 Atl, 910 32 StafP V. Gnrnoy, .37 Me. 1.56, 58 Am. Dcr. 7HL' 214 Rtnle V. Hahrrle. 72 Town 138, 33 N. W. 461 . L'45 ^' '<• V. H:iitn'>i. :»0 Mi.. 45 193 • • HiiirHfon, 63 N. C. 151 . 697 69/ 109 State V. Hall, 32 N. J. L. 158. . in State of Vermont v. Harrington, 68 Vt. 622, 35 Atl. 515, 34 L. R. A. 100 39, 40, 58, p. 53, 292, State V. Hartfiel, 24 Wis. 60 State V, Hartford, New Haven R. Co., 29 Conn. 538 State V. Hathaway, 115 Mo. 36, 21 S. W. 1081 State T. Haun, 61 Kan. 146, 59 Pac. .340, 47 L. R. A. .369 320, 724, State V. Hawley, 3 Mi.li. 330.. Slate V. Hawthorn, 9 Mo. 389. . State V. Hay, 126 N. C. 999, 49 L. R. A. 588, 35 S. E. 459, 78 Am. St. Rep. 691 State V. Hennepin County Dis- trict Court, 42 Minn. 247, 44 N. W. 7, 7 L. R. A. 121 State V. Higgs, 126 N. C. 1014, .35 S. E. 473, 48 L. R. A. 446. . State V. Hill, 126 N. C. 1139, 36 S. E. 320, 50 L. R. A. 473.. 641, Stale V. Hiniiiaii, 65 N. IT. 10.3, 18 Atl. 194, 23 Am. St. Rop. 22 Slate V. Hipp, 38 Oh. St. 199. . Slate V. Ilohokon, 33 N. J. L. 280 State V. HogjHi, 63 Oh. St. 202, 5S N. E. 572, 52 L. R. A. 86.3, 81 Am. St. Rep. 626 90, 99, 491, State V. Hogrcivcr. 152 Ind. 652, 53 N. E. 921, 45 L. R. A. 504. . State V. Tlolcoml), 68 la. 107.. State V. II. .1.1. 11. 1 I n.ili 71, 37 L. K'. A. 10.3 State V. lloImcM. 3S N. H. 225. State V. Horacck. 41 Kans. 87, 21 Pae. 204. 3 L. R. A. 587... State V. TIoHtollcr. 137 Mo. 6.36, 39 S. W. 270, 3S ],. R. A. 208, 59 Am. SI. Krp. 515 State V. HiighcH, 72 N. C. 25.. State V. Hunt, 129 N. C. 686, 40 193 653 635 395 683 735 214 556 447 631 163 670 684 37 162 702 721 in l.tl 56 1 4.56 701 174 TABLE OF CASES CITED. Ixxxi [references are to sections.] S. E. 216, 85 Am. St. Rep. 758. 38, 328, 489 State V. Hunter, 106 N. C. 796, 1] S. E. 366, 8 L. R. A. 529.158, 168 State V. Inhabitants of Free- port, 43 Me. 198 163 State V. Inhabitants of Tren- ton, 53 N. J. L. 132, 11 L. R. A. 410 116 State V. Interstate Savings In- vestment Co., 64 Oh. St. 283, 60 N. E. 220, 52 L. R. A. 530, 83 Am. St. Rep. 754 198 State V. Jackman, 69 N. H. 318, 41 Atl. 347, 42 L. R. A. 438 . . 620 State V. Jackson, 80 Mo. 175, 50 Am. Rep. 499 697 State V. Johnson, 61 Kan. 803, 60 Pac. 1068, 49 L. R. A. 662. 385 State V. Jones, 39 Vt. 370 454 State V. Judge of Circuit Court, 50 N. J. L. 585, 1 L. R. A. 86. 217 State V. Julow, 129 Mo. 163, 31 S. W. 781, 29 L. R. A. 257, 50 Am. St. Rep. 443 326, 735 State V. Justus, 85 Minn. 279, 88 N. W. 759, 89 Am. St. Rep. 550 327 State V. Kalb, 14 Ind. 403 635 State V- Karstendiek, 49 La. Ann. 1621, 22 So. 845, 39 L. R. A. 520 249 State V. Kean, 69 N. H. 122, 45 Atl. 256, 48 L. R. A. 102 162 State V. Kenilworth (N. J.), 54 Atl. 244 59 State V. Kingsley, 108 Mo. 135, 18 S. W. 994 731 State V. Kreuzberg, 114 Wis. 530, 90 N. W. 1098 326 State V. Laffer, 38 Iowa 422 ... 221 State V. Lancaster, 63 N. H. 267 710 State V. Larrimore, 19 Mo. 391. 223 State V. Layton, 160 Mo. 474, 61 S. W. 171, 83 Am. St. Rep. 487 32 State V. Lewis, 134 Ind. 250, 33 N. E. 1024, 20 L. R. A. 52 ... 527 State V. Loeffring, 61 Oh. St. 39, 46 L. R. A. 168 133 State V. Loomis, 115 Mo. 307, 22S. W. 350, 21 L. R. A. 789.. 320, 611,735 State V. Ludington, 33 Wis. 107 626 State V. McCann, 21 Ohio St. 198 698 State V. McKee, 73 Conn. 18, 46 Atl. 409, 49 L. R. A. 542, 84 Am. St. Rep. 124 248, 472 State V. MacKnight (N. C), 42 S. E. 580 133 State V. McMahon, 65 Minn. 453, 68 N. W. 77 727 State V. Madden, 81 Mo. 421 . . . 613 State V. Mahner, 43 La. Ann. 496, 9 Sou. 480 643 State V. Main, 69 Conn. 123, 37 Atl. 80, 36 L. R. A. 623, 61 Am. St. Rep. 30 144, 520 State V. Manual, 4 Dev. (N. C.) 20 691 State V. Marsh, 37 Ark. 356 232 State V. Marshall, 64 N. H. 549, 15 Atl. 210, 1 L. R. A. 51.... 49, 58, p. 53, 284 State V. Martin, 34 Ark. 340. . . 221 State V. Marvin, 12 Iowa 499. . 240 State V. Medbury, 3 R. I. 138.. 712 State V. Miller, 50 Mo. 129 556 State V. Mitchell, 3 Blackf. (Ind.) 229 90 State V. Mitchell, 97 Me. 66, 53 Atl. 887 724 State V. Montgomery, 92 Me. 433, 43 Atl. 13 288, 289 State V. Moore, 104 N. C. 714.. 93 State V. Moore, 113 N. C. 697, 18 S. E. 342, 22 L. R. A. 472.. 38, 58. 328, 489 State V. Morris, 47 La. Ann. 1660, 18 So. 710 521 State V. Morris. 77 N. C. 512. . 563 State V. Mugler, 29 Kans. 256. 541 State V. Muncey, 28 W. Va. 494 221 State V. Myers, 42 W. Va. 822, 26 S. E. 539, 35 L. R. A. 844, Ixx-sii TABLE OF CASES CITED. [references ake to sections.] 57 Am. St. Rep. 887 49, 58, p. 53, 284 State V. Mvlod, 20 R. I. 632, 40 Atl. 753, 41 L. R. A. 428.. 133, 468 State V. Napier, 63 S. C. 60, 41 S. E. 13 328, 489 State V. Nash, 97 N. C. 514, 2 S. E. 645 232 State V. Neidt (N. J. Ch.), 19 Atl. 318 176 State V. Neis, 108 N. C. 787, 13 S. E. 225, 12 L. R. A. 412. . 456 State V. Nelson. 52 Oh. St. 88, 39 N. E. 22, 26 L. R. A. 317.. 735 State V. Newark, 3 Dutch. (N. J.), 185 441 State V. New Orleans, C. and L. R. Co., 49 La. Ann. 1571, 22 So. 839, 39 L. R. A. 618 613 State V. Noyes, 47 Me. 189..363, :^97 State V. Noyes, 30 N. H. 279. . . 193 State V. Ohio Oil Co., 150 Ind. 21, 49 N. E. 809, 47 L. R. A. 627 422 State V. Olympic Club, 46 La. 935, 15 So. 190, 24 L. R. A. 452 248 State V. Orr, 68 Conn. 101, 35 Atl. 77(1. 34 L. R. A. 279. . .522, ("O State V. Paul, 5 H. 1. 185 214, 515,539 State V. IVol Splint Coal Co., 36 W. Va. «02, 15 S. K. 1000.. .'iOL', 7:»5 State V. IVnnoyor, 65 N. II. 1 Kt, 1« All. H78, 5 L. R. A. 7()9..133, 684 Hlnlo V. iVterH, 43 Ohio St. 629, 4 N. K. H! 105 State V. IMit, 74 Minn. 37(1, 77 N. W. 225 7.15 aintn V. Porter, 112 N. C. 887, 16 H. K. 915 219 Btnto V. Pf.woll, 5S Ohio St. .T24, r.O N. E. 900, 41 I,. H. A. 854. 1 H5 Hfnto V. Hand, 51 N. H. 361, 12 Am. Hop. 127 722 Hlalf V. Rnmlnlph, 23 Oregon 74. 31 Par. 'jni. 17 Ti. R. A. 470, 37 Am. St. Rep. 0G5 684 State V. Ray, 63 N. H. 406, 56 Am. Rep. 529 261 State V. Ray, 131 N. C. 814, 42 S. E. 960 186 State V. Read, 12 R. I. 137. .175,464 State V. Reid, 1 Ala. 612, 35 Am. Dec. 44 90 State V. Robbins, 124 Ind. 308, 24 N. E. 978, 8 L. R. A. 438. . 526 State V. Rodman, 58 Minn. 393, 59 N .W. 1098 419, 422, 516 State V. Rohart, 83 Minn. 257, 54 L. R. A. 947 168 State V. Ryan, 70 Wis. 676, 36 N. W. 823' 227 State of Iowa v. Santee, 111 la. 1, 53 L. R. A. 763, 82 Am. St. Rep. 489 34, 673 State V. Sargent, 45 Conn. 358. 406, 576 State V. Sarradat, 46 La. Ann. 700, 15 So. 87, 24 L. R. A. 584. 641, 667 State V. Schlemmera, 42 La. Ann. 11G6, 10 L. R. A. 135. . . 127 State V. Schlenkcr, 112 Iowa 642, 84 N. W. 698, 51 L. R. A. 347, 84 Am. St. Rep. 360. . 32 State V. Scougal, 3 S. D. 55, 51 N. W. 858, 15 L. R. A. 477, 44 Am. St. Rep. 756 219, 364, 401 State V. Sharplcss (Wash.), 71 Pac. 737 494 State V. Sherod, 80 Minn. 446, 83 N. W. 417, 50 L. R. A. 660, 81 Am. St. Rep. 268 41 State V. Sinks, 42 Oh. St. 345.37, 207 St:.to V. Smyth, 14 R. I. 100, 51 Aim. H.'].. :!11 280 State V. Snow, 81 Ta. 642, 47 N. W. 777, 11 L. R. A. 3.55.. 41 St.ite V. Standish, 37 Kans. 643, 10 Pac. 66 454 State V. S. S. Constitution, 42 Cm I. 578, 10 Am. Hep. 303 705 Stiitf. V. Str.'lf., 106 N. C. 766, 11 S. E. 478, 8 L. R. A. 516. . . 386 TABLE OF CASES CITED. Ixxxiii [references are to sections.] 130 360 state V. Stovall, 103 N. C. 416, 8 S. E. 900 175,464 State V. Stucker, 58 Iowa 496. . 232 State V. Taft, 118 N. C. 1190, 32 L. E. A. 122 State V. Taylor, 55 Oh. St. 61, 44 N. E. 513 State V. Tenant, 110 N. C. 609, 14 S. E. 387, 15 L. E. A. 423, 28 Am. St. Bep. 715 643 State V. Thompson, 160 Mo. 333, 60 S. W. 1077, 54 L. E. A. 950, 83 Am. St. Eep. 468...195, 651, 730 State V. Topeka, 36 Kane. 76, 12 Pac. 310, 59 Am. Eep. 529. . 421 State V. Travelers' Insurance Company, 70 Conn. 590, 40 Atl. 465, 66 Am. St. Eep. 138 707 State V. Tutty, 41 Fed. 753, 7 L. E. A. 50 697 State V. Vandersluis, 42 Minn. 129, 43 N. W. 789, 6 L. E. A. 119 133, 684 State V. Vankirk, 27 Ind. 121.. 89 State V. Van Doran, 109 N. C. 864, 14 S. E. 32 133, 711 State V. Van Wye, 136 Mo. 227, 37 S. W. 938, 58 Am. St. Eep. 627 248, 472 State V. Vineland, 56 N. J. L. 474, 23 L. E. A. 685 State V. "Walker, 36 Kan. 297, 13 Pac. 279, 59 Am. Eep. 556 ... State V. Walruff, 26 Fed. 178. . . State V. Walsh, 136 Mo. 400, 37 S. W. 1112, 35 L. E. A. 231. 195, 730 State V. Ward, 41 Fed. 753, 7 L. E. A. 50 697 State V. Weir, 33 Iowa 134, 11 Am. Eep. 115 217 State V. Wheeler, 25 Conn. 290. . 214 State V. White, 64 N. H. 48, 5 Atl. 828 468 State V. Wiggin, 64 N. H. 508, 15 Atl. 128, 1 L. E. A. 56 710 State V. Williams, 30 N. J. L. 102 245, 626 160 241 540 State V. Williams, 32 S. C. 123, 10 S. E. 876 451 State V. Wilson, 61 Kans. 32, 60 Pac. 1054, 47 L. E. A. 71..44, 394 State V. Wilson, 43 N. H. 415, 82 Am. Dec. 163 176, 529 State V. Woodman, 26 Mont. 348, 67 Pac. 1118 722 State V. Woodward, 89 Ind. 110 563 State of Indiana v. Woram, 6 Hill (N. Y.) 33, 40 Am. Dec. 378 22 State V. Wordin, 56 Conn. 216, 14 Atl. 801 613 State V. Workman, 35 W. Va. 367, 14 S. E. 9, 14 L. E. A. 600 95 State V. Wray, 72 N. C. 253 223 State V. Zeno, 79 Minn. 80, 81 N. W. 748, 48 L. E. A. 88, 79 Am. St. Eep. 422 494, 646 State ex rel. Monuett v. Adams, 58 Oh. St. 612, 51 N. E. 135, 41 L. E. A. 727, 65 Am. St. Eep. 792 701 State ex rel. George v. Aiken, 42 S. C. 222, 20 S. E. 221, 26 L. E. A. 345 218, 666 State ex rel. Wyatt v. Ash- brook, 154 Mo. 375, 55 S. W. 627, 48 L. E. A. 265, 77 Am. St. Eep. 765 494,611 State ex rel. Star Publishing Co. V. Associated Press, 159 Mo. 410, 60 S. W. 91, 51 L. E. A. 151, 81 Am. St. Rep. 368 386 State ex rel. Chapman v. Board of Medical Examiners, 34 Minn. 387, 26 N. W. 123 546 State ex rel. Auburn School District v. Boyd, 63 Neb. 829, 89 N. W. 417, 58 L. R. A. 108.. 37 State ex rel. Curtis v. Brown and Sharpe Mfg. Co., 18 R. I. 16, 25 Atl. 246, 17 L. E. A. 826. . 320, 715 State ex rel. Monnett v. Buck- Ixxxiv TABLE OF CASES CITED. [references are to sections.] eye Pipe Line Co., 61 Oh. St. 5-20, 56 N. E. 464 355 State ex rel. Adams v. Burdge, 95 Wis. 390, 70 N. W. 347, 37 L. K. A, 157, 60 Am. St. Rep. 1: 447 h^late ex rel. Ossenkop v, Cass County Commissioners, 12 Neb. 54, 10 N. W. 571 651 State ex rel. Corcoran v. Chap- el, 64 Minn. 130. 66 N. W. 205.. 419 State ex rel. Tompkins v. Chi- cago, St. P., M. ic O. R. Co., 12 S. D. 305, 81 N. W. 503, 47 L. H. A. 569 395 State ex rel. Coffey v. Chitten- den, 112 Wis. 569, 88 N. W. 587 647 .St:ite ex rel. Bruns v. Claus- meier et al.. 154 Ind. 599. 57 N. E. 541, 50 L. R. A. 73, 77 Am. St. Rep. 511 103 State ex rel. Wood v. Con- Hiimers Oas Trust Co., 157 Ind. .345, 61 N. E. 674 387 State ex rel. Alwater v. Ddii ware, La«'ka\vanna and Wost- .■rn R. Co., 4H N. .T. L. .').5, 2 Atl. 80.1, r,7 .\m. R<"i>. 54:5... 387 State ex n-l. (iarralcid v. Dt-r- injf, 84 Win. 585, 54 N. W. 1104, 19 L. R. A. 858, .16 Am. Ht. R<'p. 913 46S, 013, 729 State ex rel. WciHH v. DiHtrict Hoard. 76 WIb. 177, 44 N. W. 967, 7 L. R. A. 733, 20 Am. St. Rep. 41 463 Btnto ox rel. Alexander v. Kliza- Uth, rM N. .1. L. 71, 28 Atl. 51, LM ].. R. A. r,'.'.'} 6H7 Stale vt r«d. Witter v. Ff)rkn<>r, 94 Iowa 1. 02 N. W. 772, 28 I,. R. A. 206 217 St - rrl. Att'y Oen'I v. < , r,(\ Oh, St, rtirt, 47 N. K. SSI, 38 L. R, A. 519, 60 Am. SI. R.-p. 7.''.rt 4.35 Stall* «s rel. Wfidemnn v. Hor- gan, 55 Minn. 183, 56 N. W. 688 284 State ex rel. Corwin v. Indiana & Ohio Oil Gas Co., 120 Ind. 575, 22 N. E. 778, 6 L. R. A. 579 420 State ex rel. Ives v. Kansas Cen- tral R. R. Co., 47 Kans. 497, 28 Pac. 208 387, 395 State ex rel. Bethell v. Kilving- ton, 100 Tenn. 227, 41 L. R. A. 284, 45 S. W. 579 262 State ex rel. Johnson v. Lutz, 136 Mo. 633, 38 S. W. 323 ... 647 State ex rel. Graham v. Mc- Mahon, 65 Minn. 453, 68 N. W. 77 727 State ex rel. Columbia Club v. Mc.Master, 35 S. C. 1, 14 S. E. 290, 28 Am. St. Rep. S26 456 State ex rel. Remky v. Meek, 112 la. 338, 84 N. W. 3, 51 L. R. \. 414, 89 Am. St. Kep. 342 407, 418 State ex rel. Chiids v. Minnc- tonka, 57 Minn. 526, 59 N. W. 315, 25 L. R. A. 755 688 State ex rel. St. Louis Under- ground Service Co. v. M\irphy, 134 Mo. 548, 31 S. W. 784, 34 S. W. 51, 35 S. W. 1132, 34 L. R. A. 369, .56 Am. St. Rep. 515 678 State ex rel. Field v. City of New Orleans, 27 La. Aim. 5_M . 446 State ex rel. H.-iyles v. Newton, 50 N. .1. L. 549, 18 Atl. 77 284 State ex rel. Waterhury v. New- ton, ,50 N. .1. L. n:!4, 14 Atl. 604 284 State ex rel. Attorney General v. PeterH, 43 Ohio St. 629, 4 N. E. 81 105 State ex rel. Walker v. Or loanH, .Indue, .'!9 La. Ann. 132. 1 So. 437 185 State ex rrl. Marion v. Rey- noldH, 14 Mont: 383, 3(5 l':ie. 449 703 TABLE OF CASES CITED. Ixxxv [references are to sections.] State ex rel. Duensing v. Roby, 142 Ind. 268, 41 N. E. 145, 33 L. R. A. 213 194 State ex rel. Jennison v, Rog- ers, 87 Minn. 130, 58 L. R. A. 663 436 State ex rel. Bell v. St. Louis Club, 125 Mo. 308, 28 S. W. 604, 26 L. R. A. 573 546 State ex rel. Freeman v. Scheve (Neb.), 93 N. W. 169 463 State of Minnesota ex rel. Minces v. Schoenig, 72 Minn. 528, 75 N. W. 711 39, 58, 292 State ex rel. Attorney General V. Schweichardt, 109 Mo. 496, 19 S. W. 47 670 State ex rel. Attorney General V. The Simmons Hardware Company, 109 Mo. 118, 18 S. W. 1125, 15 L. R. A. 676 State ex rel. Board of Transp. V. Sioux City, O. and W. R. Co., 46 Neb. 682, 65 N. W. 766, 31 L. R. A. 47 State ex rel. Watson v. Stand- ard Oil Company, 49 Oh. St. 137, 30 N. E. 279, 15 L. R. A. 145, 34 Am. St. Rep. 541 350 State ex rel. Bishop v. State Board of Corrections, 16 Utah 478, 52 Pac. 1090 105 State, ex rel. Luria, v. Wagener, 69 Minn. 206, 72 N. W. 67, 38 L. R. A. 677 289,497, 732 State ex rel. Atty. Gen. v. Wat- ers-Pierce Oil Co. (Tex.), 67 S. W. 1057 356, 731 State ex rel. Burroughs v. Web- ster, 150 Ind. 607, 50 N. E. 750, 41 L. R. A. 212 543 State ex rel. O 'Connor v. Wolf er, 53 Minn. 135, 54 N. W. 1065, 19 L. R. A. 783, 39 Am. St. Rep. 582 107 State ex rel. Goodsill v. Wood- mansee, 1 N. D. 246, 46 N. W. 970, 11 L. E. A. 420. . . 219, 364, 401 53 394 State on Complaint of Zehner v. Vankirk, 27 Ind. 121 89 State ex rel. Freeman v. Zim- merman, 86 Minn. 353, !»U .\. W. 783, 58 L. R. A. 78 -1^7 State to the use of the School Fund of Gentry County v. The Wabash, St. Louis and Pacific R. Co., 83 Mo. 144... 395 Stearns v. Minnesota, 179 U. S. 223 .568, 579 Steele v. Brannan, 41 L. .1. M. C. 85 237 Stegenga, In re (Mich.), 94 N. W. 385 99 Stein V. Bienville Water Sup- ply Co., 141 U. S. 67 675 Stephen v. Reynolds, 6 N. Y. 454 371 Stevens v. Patterson & Newark R. Co., 34 N. J. Law 532, 3 Am. Rep. 269 408 Stevens v. State, 2 Ark. 291, 35 Am. Dec. 72 193 Stewart v. Salamon, 94 U. S. 434 560 Stickrod v. Commonwealth, 86 Ky. 285, 5 S. W. 580. .516, 539,687 Stimson Mill Co. v. Braun, 136 Cal. 122, 68 Pac. 481, 57 L. E. A. 726, 89 Am. St. Rep. 116. . 626 Stockton v. City of Newark, 42 N. J. Eq. 531, 9 Atl. 203 565 Stokes & Gilbert v. Corporation of New York, 14 Wend. 87.. 274 Stone v. Farmers' Loan & Trust Co. (Railroad Commission Cases), 116 U. S. 307. .63, 380. 57ii Stone V. Graves, 145 Mass. 353, 13 N. E. 906 7.35 Stone v. Mayor, 25 Wend. 157. 534 Stone v. Mississippi, 101 U. S. 814 24, 362, 563,674 Stone v. Wisconsin, 94 U. S. 181 379,572 Story V. New York Elevated R. Co., 90 N. Y. 122, 43 Am. Rep. 146 510 Stoutenburgh v. Frazier, 16 Ixxivi TABLE OF CASES CITED. [REFERENCES ARE TO SECTIONS.] 95 295 691 310 10 >S8 vi; App. Cas. D. C. 229, 48 L. R. A. 220 Stoutenburgh v. Hennick, 129 U. S. 141 Strauder v. West Virginia, 100 U. S. 303 Street v. Varney Electrical Sup- ply Co. (Ind.), 66 N. E. 895.. Stuart, City of, v. Cunningham, 88 la. 191, 55 N. W. 311, L. R. A. 430 Sturgea v. Crowinshield, 4 Wheat. 122 306, 555,557 Sullivan v. Lafayette Co. Super- visors, 58 Miss. 790 668 Sullivan v. Oneida, 61 111. 242. . 526,528 Sullivan v, Oregon R. and N. Co., 19 Oregon 319, 24 Pac. 408 .. . 629 Summerville v. Pressley, 33 S. C. 56, 8 L. R. A. 845 Surocco v. Geary, 3 Cal. 69, 58 Am. Dec. 385 Susrjuehanna Canal Co. v. Wright, 9 W. & S. 9, 42 Am. Der-. 312 Sutton V. Clarke, 6 Taunt. 29. . Swearingen v. United States, nn r. s. mg 636 Sweeny v. Hunter, 145 Ta. St. 303, 22 Atl. 6.-3, 14 L. H. A. - ,1 .'{Ol r ■ >A V. Hallcntiiio (Idaho), 69 PftP. 995 1"! Swett V. CuttB, 50 N. II. 439, 9 Atn. R<'p. 276 425 s.. ,ft v. (Hainan, 102 Iowa 206. 71 N, W. 2.13. 37 1,. H. A. 462, 63 Am. St. Rep. 443 443 Swift V, People ex rol. I'VrriH • Wheel Co., 162 111. 534. 44 N. K. r.2«, 33 L. R. A. 470. . . 212,645,652 Hwlirnrt V. People, 154 111. 284, 40 N. K. 432 195,730 Tnromn v. Krerh, 15 Wnwh. 296. 46 Vnr. LT.r,. 3t L. R. A. 68.. 7:15 Talbot v. Illacklcgc, 22 la, D72. 444 534 576 507 Tanner v. Albion, 5 Hill 121, 40 Am. Dec. 337 193 Tate V. Davidson, 143 Mass. 590, 10 N. E. 492 226 Tatman v. Strader, 23 111. 493. 194 Taunton v. Taylor, 116 Mass. 254 531 Taylor, Ex Parte, 87 Cal. 91, 25 Pac. 154 163 Taylor, Re, 48 Md. 28, 30 Am. Rep. 451 692 Taylor v. Plymouth, 8 Mete. 462 534 Taylor v. Porter, 4 Hill 140, 40 Am. Dec. 274 427 Taylor v. The State, 49 Ala. 19 99 Templar v. Michigan State Board of Examiners, 90 N. W. 1058 706 Ten Hour Law for Street Rail- way Corporations (R. I.), 54 Atl. 602 316, 556, 683 Tenney, Chairman, etc., v. Lenz, 16 Wis. 566 39. 434 Tcrre Haute v. Kersey (Ind.), 64 N. E. 469 168 Tcrrett v. Taylor, 9 Cranch. 43. 460, 594 Territory v. Ah Lim, 1 Wash. 1.56, 9 L. R. A. 395 455 Texas Central R. Co. v. Childress, 64 Tex. 346 629 Texas & Pacific Coal Co. v. Lawson, 89 Tex. 394, 32 S. W. 871, 34 S. W. 919 354 Thorington v. Smith, 8 Wall. 1. 560 Thorpe v. Rutland and Burling- ton Railroad Company, 27 Vt. 140, 62 Am. Dec. 625 24, 362, 565, 629 Thrift V. Elizabeth City. 122 N. C. 31, 30 S. E. 349, 44 L. H. A. .1127 574,681 Thiirh.T V. Martin, 2 Cray 304, 61 Am. Dec. lOH 425 Thurlow V. Massarhusetts (Li- cruHo Cnsos), 5 Howard 504.. 2, 76 Tlinrston v. Whitney, 2 Cuah. 104 46J TABLE OF CASES CITED. Ixxxvii [references are to sections.] Tide Water Co. v. Costar, 3 C. E. Green (N. J.) 54 441 Tiernau v. Einker, 102 U. S. 123 76, 82, 232 Tierney v. New York Central & Hudson Eiver R. E. Co., 76 N. Y. 305 387 Tilley v. St. Louis and S. F. Ey. Co., 49 Ark. 535, 6 S. W. 8 . . . 628 Timm v. Harrison, 109 HI. 593. 38 Todd V. Clapp, 118 Mass. 495. . 702 Toledo, A. A. & N. M. Ey. Co. V. Pennsylvania Co., 54 Fed. 730 450, 452 Toledo, Wabash and Western Eailway Company v. City of Jacksonville, 67 111. 37, 16 Am. Eep. 611 63, p. 59, 145, 150 Toll Bridge Co. v. Flowers, 110 N. C. 381, 14 S. E. 918 668 Tomlinson v. City of Indianap- olis, 144 Ind. 142, 43 N. E. 9, 36 L. E. A. 413 38, 168 Tomlinson v, Jessup, 15 Wall. 454 363, 568 Topeka v. Zufall, 40 Kansas 47, 19 Pac. 359, 1 L. E. A. 387 32 Tourne v. Lee, 8 Mart. (N. S.) 548, 20 Am. Dec. 260 170 Town of, see name of town. Townsend v. State, 147 Ind. 624, 47 X. E. 19, 37 L. E. A. 294, 62 Am. St. Eep. 477 422 Trade Mark Cases, 100 U. S. 82 664 Traer v. State Board of Medical Examiners, 106 la. 559, 76 N. W. 833 546 Trageser v. Gray, 73 Md. 250, 20 Atl. 905, 9 L. E. A. 780, 25 Am. St. Eep. 587 706 Train et als. v. Boston Disinfect- ing Company, 144 Mass. 523, 11 N. E. 929, 59 Am. Eep. 113. .31, 521 Transportation Co. v, Chicago, 99 U. S. 635 508 Trcbilcock v. Wilson, 12 Wall. 687 559 Tredway v. Sioux City, etc., E. Co., 43 la. 527 637 Trent v. Cartersville Bridge Co., 11 Leigh 544 668 Trenton Potteries Co. v. Oli- phant et al., 58 N. J. Eq. 507, 43 Atl. 723, 46 L. E. A. 255, 78 Am. St. Eep. 612 349 Trenton Water Power Co. v. Raff, 36 N. J. L. 335 410 Trout V. Marvin, 62 Oh. St. 132, 56 N. E. 655 190, 626 Truesdale v. Peoria Grape Sugar Co., 101 111. 561 162 Trustees of Columbia College v. Thaeher, 87 N. Y. 311, 41 Am. Eep. 365 590 Trustees of Dartmouth College V. Woodward, 4 Wheat. 518.. 24, 361, 363, 561, 597 Trustees of Town of Paris v. Berry, 25 Ky. 483 620 Tucker v. Ferguson, 22 Wall. 527 568 Tugman v. Chicago, 78 111. 405. 687 Tullis v. Lake Erie and Western E. Co., 175 U. S. 348 715 Turner v. Maryland, 107 U. S. 38 75, 276, 277 Turner v. Nye, 154 Mass. 579, 28 N. E. 1048 413 Turpin v. Locket, 6 Call. 113.. 460, 594 Tuthill, Ee, 163 N. Y. 133, 57 N. E. 303, 49 L. E. A. 781..427, 442 Tyler v. Beacher, 44 Vt. 648, 8 Am. Eep. 398 412 Underwood v. Green, 42 N. Y. 140 522 Ungericht v. State, 119 Ind. 379, 21 N. E. 1082, 12 Am. St. Eep. 419 735 Union Central Life Insurance Co. V. Chowning, 86 Tex. 654, 26 S. W. 982, 24 L. E. A. 504. 637, 714, 727 Union Pacific E. Co. v. Porter, 38 Neb. 226, 56 N. W. 808 ... 633 Ixxxviii TABLE OF CASES CITED. [references are to sections.] Union Strawboanl Co. v. Bon- fieUl, 193 111. 420, 61 N. E. 1038, 86 Am. St. Rep. 346. .. . 348 United States v. Bellingham Bay Boom Co., 176 U. S. 211 407 United States v. Bennett, 16 Blatch. 338 237 United States v. Buntin, 10 Fed. 730 698 United States v. Cassidy, 67 Fed. 698 341, 356 United States v. Clarke, 38 Fed. Kep. 732 237 United States v. Chesman, 19 Fed. 497 237, 23S United States v. Cruikshank, 92 U. S. 542 480,611 Cnited States v. Dewitt, 9 Wall. 41 i^-'^ Initod States v. E. C. Knight Company, 156 U. S. 1 69, 79, 341, 342 United States v. Forty-three Gallons of Whiskey, 93 U. S. 188 fi7 United States v. Gettysburg Electric Railway Company, 160 U. S. 668 13, 183 United States v. Greenhut, 51 Fed. 205, 213 346, 353 T'nifod States v. Harmon, 45 F.'d. HI 237 United States v. Harris, 106 U. H. 629 693 United States v. Ilolliday. 3 Wall. 407 67 United States v. Kirhy, 7 Wall. 482 15S United Rtntes v. Joint Traffic Attwiriiition. 171 U. S. .505. .355, 5ii2 United 8tnte« v. Jones, 109 U. 8. Ria 506 United Stfttcs v. Tjamkin, 73 F.-d. ■\:>'J 237. 453 Unitfxl Btntwi v. Lynah, 188 U. R. Urt 40!» Unltwl 8tntm v. Martin, 50 Fed. yi8 207, 453 United States v. Moline, 82 Fed. 592 40.3, 406 United States v. Northern Se- curities Co., 120 Fed. 721 351 United States v. Pacific Railroad Co. 120 U. S. 227 530 United States v. Perkins, 163 U. S. 625 22, 269,307 United States v. Realty Co., 103 U. S. 427 428 United States v. Russell, 13 Wall. 623 536 United States v. Smith, 45 Fed. 470 237 United States v. Stowell, 133 U. S. 1 627 United States v. Trans-Missouri Freight Association, 160 U. S. 290 354, 355 United States v. Waddell, 112 U. S. 76 693 United States v. Wightman, 29 Fed. 630 230 United States v. Wilson, 46 Fed. 748 108 Unitod States v. Wong Kim Ark, 109 U. S. 649 091 United States v. Workingmen's Amalgamated Council, 54 Fed. 994 341, 356 United States v. Zucker, 101 U. S. 475 526 United States ex rcl. Hoop v. Douglass, 19 D. C. 99 209, 654 University v. Pco]>lo, 99 IT. S. 309 568 Updegrapli v. Conimoiiwcnltli, 11 S. & R. 394 405 Vance v. Vandorcook Co., 170 U. S. 438 233 Vunderbilt v. Adams, 7 Cowcn 349 175 Vanderlmrsl v. Tixdckc, 113 Cal. 117, 15 I'ac. 200, 35 L. U. A. 207 158 Vanderpool v. Gorni.-in, 140 N. V. 503, 35 N. E. 932. 24 L. R. A. 048. 37 Am. Ht. Rbp. OlJl. . 716 TABLE OF CASES CITED. Ixxxix [references are to sections.] Van Deusen v. Newcomer, 40 Mich. 90 252 Vandine, Ee, 6 Pick. 187, 17 Am. Dec. 351 168, 641 Van Horn v. People, 46 Mich. 183, 9 N. W. 246, 41 Am. Rep. 159 434 Van Wormer v. The Mayor, etc., of Albany, 15 Wend. 262 521 Veazie Bank v. Fenno, 8 Wall. 533 58, p. 53 Vegelahn v. Guntner, 167 Mass. 92, 44 N. E. 1077, 35 L. E. A. 722, 57 Am. St. Eep. 443 333 Vermont Loan and Trust Asso- ciation V. Whithed, 2 N. D. 82, 49 N. W. 318 304 Village of Des Plaines v. Poyer, 123 111. 348, 14 N. E. 677, 5 Am. St. Eep. 524 250 Villavaso v. Barthet, 39 La. Ann. 247, 1 Southern 599 565 Virginia, Ex parte, 100 U. S. 339 693 Vise V. Hamilton Co., 19 111. 78. 613 Vogel V. Pekoe, 157 111. 339, 42 N. E. 386, 30 L. E. A. 491 314, 321, 502, 735, 736 Voight V. Wright, 141 U. S. 62. 77, 82, 138, 277 W. W, Cargill Co. v. Minne- sota, 180 U. S. 452 297, 493 Wabash, St. Louis and Pacific Eailway Company v. Illinois, 118 U. S. 557 73, 79 Wadleigh v. Oilman, 12 Me. 403, 28 Am. Dec. 188 141, 538, 685 Wadsworth v. Union Pacific E. Co., 18 Col. 600, 33 Pac. 515, 23 L. E. A. 812, 36 Am. St. Eep. 309 629, 637 Wahll, Ee, 42 Fed. 822 236 Walker v. Cronin, 107 Mass. 555 333 Walker et als. v. The City of New Orleans, 31 La. Ann. 828.. 41 Wall, Ex parte, 48 Cal. 279, 17 An). Rep, 425 .217 346 424 Walla Walla v. Walla Walla Water Co., 172 U. S. 1 6''S Wallace v. Georgia, Carolina & Northern E. Co., 94 Ga. 732, 22 S. E. 579 327 Wallace v. Eichmond, 94 Va. 204, 26 S. E. 586, 36 L. E. A. 554 537 Wallace v. Western N. C. E. Co., 104 N. C. 442, 10 S. E. 552. . . 628 Walling V. Michigan, 116 U. S. 446 76, 82, 232 Wallis V. Day, 2 M. & W. 273. . 449 Walsh V. Dwight, 58 N. Y. S. 91, 40 App. Div. 513 Walters v. Pfeil, Moo. & Mai. 362 Ward V. Flood, 48 Cal. 36, 17 Am. Eep. 405 698 Ward V. State, 17 Oh. St. 32 192 Warren v. Tanner, 21 Ky. L. Eep. 1678, 56 S. W. 167, 49 L. E. A. 248 Washington Bridge Co. v. State, 18 Conn. 53 Washington lee Co. v. Shortall, 101 111. 46, 40 Am. Eep. 196. . . 418 Washington, etc., Toll Bridge Co. V. Commissioners of Beau- fort, 81 N. C. 491 682 Waterhouse v. Comer, 55 Fed. 149 341 Waters v. People, 23 Colo. 33, 46 Pac. 112, 33 L. R. A. 836, 58 Am. St. Rep. 215 249 Waters v. Wolf, 162 Pa. St. 153, 29 Atl. 646, 42 Am. St. Rep. 815 626 Waters-Pierce Oil Co. v. State, 19 Tex. Civ. App. 1, 44 S. W. 936 356, 734 Watuppa Reservoir Co. v. Fall River, 147 Mass. 548, 18 N. E. 465, 1 L. R. A. 466 408. 576 Watuppa Reservoir Co. v. Fall River, 154 Mass. 305, 28 N. E. 2'57, 13 L. R. A. 255 408, 576 668 576 xc TABLE OF CASES CITED. [references are to sections.] Watuppa Reservoir Companj- v. Mackenzie, 132 Mass. 71 34 Way, In re, 41 Mich. 299, 1 N. W. 1021 99 Waye v. Thompson, L. E. 15 Q. B. D. 342 521 Weaver v. People, 33 Mich. 296.. 108 Webb V. Bair.l. 6 Ind. 13 613 Webber v. Harding, 55 Ind. 408 244 Webster v. Cambridge Female Seminary, 78 Md. 193, 28 Atl. 25 362, 599 Webster v. Sughrow, 69 N. H. 380, 45 Atl. 139, 48 L. R. A. 100 369 Weise v. Smith, 3 Ore. 445, 8 Am. Rep. 621 409 Welch V. Cook, 97 U. S. 541. . . . 568 Welch V. Phelps and Bigelow Wind Mill Co., 89 Tex. 653. . . 346 W.-I.li V. Stowell, 2 Dougl. (Mich.) 332 245, 250,525 Weller v. Snovcr, 42 N. J. L. 341 527 Wellcr V. The State, 53 Ohio State 77, 40 N. E. 1001 32 Wellington, etc., R. Co. v. King, 91 U. S. 3 560 Wells, Ex parte. 18 How. 307. . 104 Welsh V. State, 126 Ind. 71, 9 L. R. A. 664 710 Woinh V. Wil.son, 101 N. Y. 254, 4 N. K. 633, .'54 Am. Rep. 698. . 172 Welton V. State of Missouri, 91 U. 8. 275 74, 82, 294 Wonhiun v. State (Xeb.). 91 N. W. 421, 5H L. U. A. 825.. :n2, 31-1, 317, 735 Went V. furter, 129 111. 249, 21 N. E. 782 192 Went V. Kmnnuel, 198 Pa. IHO. 47 Atl. 965, 53 L. Iv. .A. \\ . I Chicnfin MnHonir Abbo- elation v. Cnhn, 192 111. 210, 61 N. E. 431), 55 L. R. A. 2.35.. Wcjit River nridRO Co, v. Dix, 6 n .w. .'-,07 Wr 1 WiiM'onmn R. Co. v. 8u- I )!• 16i 587 pervisors of Trempealeau County, 93 U. S. 595 568 Westchester, etc., R. Co. v. Miles, 55 Pa. St. 209, 93 Am. Dec. 744 695 Westerfield, Ex parte, 55 Cal. 550, 36 Am. Rep. 47 317, 735 Western Granite Co. v. Knicker- bocker, 103 Cal. Ill, 37 Pac. 192 426 Western Union Telegraph Co. v. Call Publishing Co., 44 Neb. 326, 62 N. W. 506, 27 L. E. A, 622, 48 Am. St. Rep. 729 389 Western Union Telegraph Com- pany V. Call Publishing Com- pany, 181 U. S. 92 73, 79 Western Union Telegraph Co. v. Pensacola, etc., Co., 96 U. S. 1 79, 719 Western Union Telegraph Co. v. Texas, 105 U. S. 460 717 Westervelt, executor, etc. v. Gregg, 12 N. Y. 202, 62 Am. Dec. 160 20 Westmoreland & C. Natural Gas Co. V. De Witt, 130 Pa. St. 235, 18 Atl. 724, 5 L. R. A. 731 422 Weston V. Barnicoat, 175 Mass. 4.54, 56 N. E. 619, 49 L. R. A. 612 301 Weston V. Sampson, 8 Cush. 347, 54 Am. Dec. 764 405 Wetmore v. State, 55 Ala. 198. . 192 When ton v. Peters, 8. Pet. 590. . . 603 Wliceling and R. Bridge Co. v. Wlieoling Bridge Co., 138 U. S. 287 075 Wliecler v. Northern Colorado Irrigating Co., 10 Col. 582, 17 Par. 487, 3 Am. St. Rep. 603. . 416 White V. City Council of Charles- ton, 2 Hill (S. C.) 571 534 While V. Godfrey, 97 Mass. 472 163 White V. Kent, 11 Oliio State 550 1 73 White Deer f'reek Improvement, Co. V. SaHsamau, 07 Pa. St. 415 409 TABLE OF CASES CITED. XCl [references are to sections.] Wlutebreast Fuel Co. v. People, 1 75 III. 51, 51 N. E. 853 394 Vvhittenton Mills v. Upton et ills., 10 Gray (Mass.) 582, 71 Am. Dec. 681 350 Whit well, Ex parte, 98 Cal. 73, 32 Pac. 870, 19 L. E. A. 727, 35 Am. St. Rep. 152 256 Wight V. United States, 167 U. 8. 512 392 Wiggins V. The City of Chicago, 68 111. 372 40 Wilder v. Chicago and W. M. R. Co., 70 Mich. 382, 38 N. W. 289 727 Wilkins v. Jewett, 139 Mass. 29, 29 N. E. 214 443 Wilkinson v. Board of Chil- dren 's Guardians, 158 Ind. 1, 62 N. E. 481 262 Wilkinson v. Rahrer, 140 U. S. 545 232 Wilkinson v. Stitt, 175 Mass. 581, 56 N. E. 830 192 Wilkinson v. Tousley, 16 Minn. 263 194 Williams v. Citizens' Enterprise Co., 25 Ind. App. 351, 57 N. E. 581 360 Williams v. Fears, 179 U. S. 270 74, 79, 328, 489 Williams v. Fears, 110 Ga. 584, 35 S. E. 699, 50 L. R. A. 685. . . 489 Williams v. Mayor, etc., of New York, 105 N. Y. 419, 11 N. E. 829 406, 576 Williams v. Nelson, 23 Pick. 141, 34 Am. Dec. 45 412 Williams v. Parker, 188 U. S. 491 180 Williams v. People, 121 111. 84, 11 N. E. 881 133, 684 Williams v. State, 44 Ala. 41 . . . 87 Williams v, Wingo, 177 U. S. 601 675 Williamson v. Price, 4 Mart. (N. S.) 399 625 Willia'msptrtt pas^nger E. Co. V. Williamsport, 120 Pa. St. 1, 13 Atl. 496 576 Willow River Club v. Wade, 100 Wis. 86, 76 N. W. 273, 42 L. R. A. 305 404, 417, 418 Wilmington & Weldon R. Co. v. King, 91 U. S. 3 560 Wilson et als. v. Blackbird Creek Marsh Company, 2 Pet. 245 72 Wilson V. Board of Trustees of Sanitary District of Chicago et al., 133 111. 443, 27 N. E. 203. 22 Wilson V. Eureka City, 173 U. S. 32 168, 644, 655 Wilson V. Iseminger, 185 U. S. 55 370 Wilson V. United Traction Co., 72 App. Div. 233, 76 N. Y. Suppl. 203 613 Wilson, Town of v. Weston, Town of, 48 Conn. 325 434 Winchester, etc., L. Turnpike Road Co. V. Croxton, 98 Ky. 739, 34 S. W. 518, 33 L. R. A. 177 362, 363,570 Windisch-Muhlhauser Brewing Co. V. Bacom, 21 Ky. L. Rep. 928, 53 S. W. 520 301 Winget V. Quincy B. & H. As- sociation, 128 111. 67, 21 N. E. 12 304 Winn V. State, 43 Ark. 151 221 Winona & St. Paul R. Co. v. Blake, 94 U. S. 180 379 Winslow V. Gilford, 6 Cush. 327. 5L8 Wisconsin, Minnesota and Pa- cific Railroad v. .Tacobson, 179 U. S. 287 63, p. 59, 397 Witham v. Osborn, 4 Ore. 318, 18 Am. Rep. 287 427 Woh Lee, Re, 26 Fed. 471 643 Wong Wing v. United States, 163 U. S. 228 704 Wood V. Whitehead Brothers Co., 165 N. Y. 545, 59 N. E. 357 348 XCll TABLE OF CASES CITED. [references are to sections.] Wooden v. Shotwell, 23 N. J. L. 465 197 Woodruff V. Catlin, 54 Conn. 277, 6 Atl. 849 548, 631 Woodruff V. Kellyville Coal Co., 182 111. 480, 55 N. E. 550 638 Woodruff V. Mississippi, 162 U. S. 291 309 Woodruff V. Parham, 8 Wall. 123 74, 81, 295 Woodruff V. Woodruff, 44 N. J. Eq. 349, 16 Atl. 4, 1 L. R. A. 880 590 Woodson V. State, 69 Ark. 521, 65 S. W. 465 394 World V. State of Maryland, 50 Md. 49 96 Wortliington Company, Matter of the, 62 X. Y. S. R. 115, 30 N. Y. Suppl. 361, 24 L. K. A. 110 237 Wreford v. The People, 14 Mich. 41 33, 141 Wripht V. Cudahy, 168 111. 86, 48 X. E. 39 200 Wright V. Xagle, 101 U. S. 791 . 678 Wright V. Noell, 16 Kan. 601. . . 701 Wriglit V. People, 101 111. 126. 2"2 2"3 Wright V. Tlio State of Mary- land, 88 Md. 436, 41 All. 7!>r). 62, 147. 283 WurtH V. Iloagland. 114 U. S. 606 441 Wynohamrr v. People, 13 N. Y. 378 214, 539 Yamataya v. Fisher, 189 U. S. 86 704 Yarbrough, Ex parte, 110 U, S. 651 693 Yates V. Brown, 8 Pick. 23 625 Yates V. Milwaukee, 12 Wis. 673 274 Y^'ates V. Milwaukee, 10 Wall. 497 406,576 Yeager, Ex parte, 11 Gratt. 655 209, 654 Yeomans v. Contra Costa, etc., Co., 44 Cal. 71 628 Yick Wo V. Hopkins, 118 U. S. 356 63, 134 610, 643, 655, 690, 700, 705, 706 ^oung V. Commonwealth (Va.), 45 S. E. 327 60, 293 Young V. Harrison, 6 Ga. 130. 668 Youngblood v. Birmingham Trust and Savings Co., 95 Ala. 521, 12 So. 579, 20 L. R. A. 58, 36 Am. St. Rep. 245 733 Youngblood ct als. v. Sexton, 32 Mich. 406, 20 Am. Rep. 654.. 37 Younger v. Judah, 111 Mo. 303, 19 S. W. 1109, 16 L. R. A. 558, 33 Am. St. Rep. 527 695 Zabriskio v. Hackonsack &c. R. Co., 18 N. J. Eq. 17S, 90 Am. Dec. 617 .■^O."), :!!I7 Zanone v. Mound City, 103 111. 552 209, 0.")4 Zeiglcr v. South and North Ala- bama Railroad Company, 58 Ala. 594 20,629 FlRSr PART. NATURE AND GENERAL SCOPE OF THE POLICE POWER, CHAin-ER I. GOVERXMEXTAL POWEES AXD PTTBLTC POLICY. IT. METHODS OF THE POLICE POWER. III. THE FEDERAL GOVERXMENT AND THE POLK E POWER. THE POLICE POWER FIKST PAllT. NATURE AND GENERAL SCOPE OF THE POLICE POWER. CHAPTER I. GOVERNMENTAL POWERS AND PUBLIC POLICY. § 1. Division of governmental powers.— Governmental pow- ers are commonly distinguished aeeordiug to the departments of government by which they are exercised, as legislative, ex- ecutive, and judicial. This division is closely connected with the development of modern constitutional government, and has been distinctly recognised and made part of the fundamental law in nearly all American constitutions. It is a division of an administrative character based on principles of organisation, and has no logical or legal relation to different subject-matters or objects of government. The three departments set a cheek upon one another, and thus upon the government as a whole, and the separation of powers has therefore always been looked upon as a valuable safeguard of free institutions ; but the divi- sion does not necessarily limit the substance of governmental powers and does not indicate the nature of such limitations as it may eventually bring about. We recognise on the other hand that government consists of a number of powers differing from each other in object and content. There has never been an exhaustive classification of these powers, and only those have distinctive names which have been conspicuously the subject of constitutional conten- tion or discussion. Thus there is no brief or comprehensive word to designate the power to make laws for the regulation of private rights, the power to define and punish crimes, or the power to enact codes of procedure ; but the military power, 1 1 2 GOVERXMEXTAL POWERS. § 2 the taxing power, the police power, the power of eminent do- main, have become familiar terms in our constitutional law. Of these, the police power is the most comprehensive, and therefore necessarily the vaguest. ^2. The term ■police."— -The term police has never been clearly circumscribed. It means at the same time a power and function of government, a system of rules, and an adminis- trative organisation and force. Blackstone couples ])nblic police and economy which he defines as "the due regulation and domestic order of the kingdom, whereby the individuals <»f the state, like the members of a well governed family, are bound to conform their general behavior to the rules of pro- priety, good neighborhood, and good uuvnners, and to be decent, industrious anil inoffensive in their respective stations."* He treats under this head of clandestine marriages, of bigamy, of waiuleriiig soldiers, of gypsies, of common nuisances (includ- ing disorderly houses, inns, plays and shows, lotteries, fire- works, eavesdroppers, connnon scolds), idleness, luxury, gam- ing, and the game laws. Offenses against public trade and against j)ublic health are treated separately from police. The infliieiu'e of Hlackstone's arrangement is noticeable in the legislation of those states which have nuide police one of the j)rincipal divisions of their slalujory revisions.- An arrange- ment of this kind is sinii)ly ;i mallei- of convenience and has no legal significance. If would be impossible to discover any y)rinciple upon wliieli tli«se partieidar mattiM's are brought to- gether and separated from others. In the decisions of the rourts we find the term police coupled with internal comnuu'ce jind domestic trade; health ami safety measures are commonly aseribeil to it; hut it is also made to iueludc the esfahlishmeiil of eonrts of jusliee and tlie punishment of offenses, and the general feudeney is tu identify it with the whole (d" internal governnu'iit and sovereignty, and to regard it as an undeliued masH of legislation.'' « Itliirkiitonf IV. lrt*J-17i}. Oliid, inioilc IhImiwI, Wahliinfjton, » The torm p<»nrp n|)pcnrH firHl uh ami WiHcoiiBin. a flU'iiiton of |PKi"lnti<)n in Iho He ■i(;i))l>(mH v. Ondcn, ;» Wli. 1, 204* \ r N How. M4, r,s:\; Now "l"I'l*"l it in ">«' •*'• Vork v. Miln, II r(-t. lO'J, l.ii); I'us- viRinti of 1S36, it in now nlmi fdiimi h'-iikct Cuhch, 7 How. 283, 424. in Drlnwjiro, lown, .Ww HiimpHliire, H DEFINJTIOX OF POLICE POWER. ^ 3. The term "police power."— It has been inferred from this vajjueness of the term police, that the idea of the police power must be equally undefined, and a recent author has jrone so far as to deny its existence, treating it as a fiction, and hold- iim it equivalent to indefinite supremacy.^ The inference is, however, unwarranted. As soon as the idea of the police be- came the centre and foundation of a governmental power, the exercise of which had to justify itself in the face of constitu- tional limitations, the courts were bound to use the term with greater care, and to attempt to define it. From the mass of de- cisions, in which the nature of the power has been discussed, and its application either conceded or denied, it is possible to evolve at least two main attributes or characteristics which dif- ferentiate the police power : it aims directly to secure and pro- mote the public welfare, and it does so by restraint and compul- sion. It will be necessary to offer a few general observations upon these two points, bearing in mind that it is not by general statements, but only by a detailed examination of statutes and decisions that the power can be fully understood and defined. Such an examination will shoAv what has been done and what has been approved by experience, what has been attempted and has failed, what has been surrendered, and what is aimed at and in process of being accomplished. It will reveal the police power not as a fixed quantity, but as the expression of social, economic and political conditions. As long as these conditions vary, the police power must continue to be elastic, i. e., capa- ble of development. A. THE POLICE POWER AS A MEANS OF FURTHERING THE PUBLIC WELFARE. §4-21. § 4. In order to understand the police power with reference to its purpose, it is necessary to distinguish the great objects of government: the maintenance of national existence; the maintenance of right, or justice : and the public welfare. § 5. Maintenance of national existence.— The maintenance of national existence, including the relation to other states and the expansion of national power, involves the creation of an adequate governmental organisation, the management of for- * W. G. Hastings, Development of state. Proeeedings of the American Law as illustrated by the decisions Philosophical Society, Sept. 1900. relating to the Police Povrer of the 4 GOVEKXMHNTAL POWERS. §6 eign relations through diplomatic intercourse, treaties, and legislation affecting foreign interests, the conduct of war, and the protection of the state against internal revolt and insur- rection. The organising power is largely exercised hy the con- stitution directly and otherwise forms part of the general legis- lative power, while appointment and removal of officers are regarded generally as executive functions. The international power is under the federal constitution reserved to the national government,^ and is divided between the legislative and ex- ecutive departments. The conduct of war and the suppression of insurrection call into play the military power of the gov- ernment, vested largely in the executive. In the exercise of its international and military power the state is freed from many of the restraints under which it must conduct the peaceful govfrnmi'iit of its own citizens.*^ ;^ 6. Supply of ways and means.— Closely associated Avith the maiiitmaiice of slate existence is the supply of ways and ni<'ans. In all its functions the government needs persons, funtls, and material equipment. To obtain these, the state may under circumstances resort to the exaction of services, and to the taking <»r ])roperty for compensation, ^lost import- ant, however, is the sui)ply of financial ways and means, the collection and expendiliiic of revenue, which in every state forms one of the main departments of the government. It involves the nianagciin'iit of pul)lic property with a view to incoiiM'. the j)ower 1o ineiir in(h'l)tedness, the ajipropriation of funds, and alK)ve all the taxing ])ower, i. e., the ])Ower to im- pose pecuniary burdens according to some principle of appor- tionnieiit and for jtublie piir|)oses. !5 7. The maintenance of right and the redress of wrong. — Civil and criminal justice. The riiiKhiineiital canons of justice result from the eoiniiion sense of riii;ht and w I'ong, ot" nioi"al r<'Si»onHibility and Ihr laitli of ohiigat ions. They ai-e a|)plie(l to, and in their ini-n are alTecled by. established social and econojnic conditiouN. and the inslilntions of government. I'anii- B Holmm V, Jonnimm, II I'.-l. .OK). c;iHiia!ticH aiMl (Iiiiihith to wliicli no « Kwlcriilidf, l,oH«T 31: "Ah fho poHnihln limitH can bo aHHipncd, tlio • liififit «if Mnp«Tirit«Mi(linK <'"' "«• power of makiiij,' tli.il proviHion tmnal ritnon or redua lln danger of tin (d>use of these rif/lits on tin part of llios< who an unskilful, cardess or unscrupulous.' ■ Ifirrmrlv tin- "listiiir-tioii lictwcMMi Hiining of imiini; .iinl tliis is exer- jiiHticc ( rniiiiilriiaiici' of |iriv:iti' cisnl hy ('(iiiity .'iihI juHlicp in onli- ri(;ht) niul policy (|)romotion of tlic imiy iMuirts. mihI liy Ihc civili.-ins is piihlii! wolfaro) Hourly. coiiK-idetl iioiiiinalcil jus iniinhnii, .iiiil with with fho (liviHion of Jiidicial or Icjjis- \\h common law; ami these laws can Intivi- an(l from f'h'icf Huron .-iikI allhon^'li tli.il tlieir form ami Klfiiiiny 'h ur^nnHMit in Huti'H* cuhc fcnirse may hi' chanjjed ;inil inter (1(100): "The kiuy^'n power is rupteil, yet they can never be •loiihlf*, cirdinury and uhNolnte, und chunked in Hnhstam'e. The alisohite thry linvc Hoverul I.-iwh and einlH. power of the kin^ is not thai which Thiif of llie ordimiry \h for the \h conviTted or executed to |irivate profit of partieiilur NiihjectH, for the iihc, to the benefit of any particniar rxci'ution of rivil juwticv, the deter- perHoii, but is only that which is up- § 10 PRIMAKY SOCIAL INTEKKSTS. 7 § 9. Scope of internal public policy and welfare.— The pul)- lie welfare embraces a variety of interests, calling' in diircrcnt degrees for public care and control. They may be classified as follows: the primary social interests of safety, order, and morals; economic interests; and non-material and i)olitical in- terests. § 10. The primary social interests : safety, order, and morals.— In order that social life may exist, that human faculties may be developed, and the progress of civilisation be made possible, a certain minimum of physical well-being is necessary. This minimum varies in different periods, and rises with advancing civilisation until it includes a certain standard of comfort. Closely connected with physical well- being is a recognition of elementary moral standards, and a repression of at least the outward manifestations of vice and immorality. In so far as the maintenance of these physical and moral standards depends upon conditions affecting a consider- able number of people alike, the government attempts to secure them to the public and to the individual. Criminal justice, the proprietary action of the state, and the police power, are equally enlisted for this purpose. The exercise of the police power for the protection of safety, order, and morals, constitutes the police in the primary or nar- rower sense of the term. It is a power so vital to the com- munity that it is often conceded to local authorities of limited powers. It is the police power in this narrower sense of the term which the Supreme Court of the United States concedes on principle to the states, even where its exercise affects inter- state and foreign commerce. § 11. Care and control of dependents.— It will be convenient to treat in connection with these primary social interests, the care and control of dependent classes, especially of minors. While not greatly developed until recent times, the power is generally felt to belong to the state in the fullest measure, and is conceded by the courts without question. plied to the general benefit of the varieth with the time, so varieth this l»oople, and is sdlus populi; as the absolute law. according to the wis- people is the body, and the king the dom of the king, for the coininiin head; and this ])o\ver is not guided gooil; and these being general rules, by the rules which direct only at the and true as they are, all things done common law, and is most properly within these rules are lawful." named policy and government, and (I'rotliero Statutes and Constitu- as the constitution of this body tional Pocnmcnts, p. 341.) g GOVERNMENTAL POWERS. § 12 ;; 12. Economic interests. — That the organized community should att'ord its members protection against physical danger and moral scandal, is generally admitted, and only the ques- tion to what extent this protection should go, is controverted. It is otherwise as to economic interests. Wealth is almost as essential to our civilisation as safety, order, and morals; but while these can be secured to a substantial degree by restraint, the acquisition of wealth is based on active efforts; and while systematic restraint proceeds naturally from government, active effort must be chiefly individual. Our economic system is es.sentially individualistic, and, more than that, is based upon peaceful struggle and conflict. An absolute govern- mental control over economic interests, similar to that over the interests of order, peace and security, would be possible only if with regard to the former as well as with regard to the latter, ('([uality were a desirable or practicable end, i. e., if the state were socialistic. Under existing conditions, gov- ernmental activity in the care and control of economic interests must operate largely as interference and disturbance, as fa- voritism or oppression. There are important exceptions to this rule, and especially in providing faeilities of communication, the necessity and the utility of governnu'iital action — action chiefly of a corporate or proprietary character— has generally been conceded, and this is also a case where the benefit bestowed is tolerably equal for all. As the avowed purpose of legiplatioii dealing with economic interests is generally aid .iikI encouragement to eom- nierce and industry, the governmental power next largely call«'«l into play after the jjroprietary power, and indeed in- vf)lverl in the latter, is that of 1;ixation. prinei])iill\' in the foi-iu of proteetion atrainst foreign eonipet il ion. in wliirli it ni;i\- at least be plausibly nrLnied that there is an e(|ual benelit to the whole comniuriity. iViwers «>f eonipulsion ami restraint are very inndi less e.isily jiiHtified on the ground of i'i\\in\ benelit. I'](iuality of benelit iiuiy b«' claimed for the suppression of IV.iuil. ami ;i liiKJ.iiey townrds ejpiality underlies the re^rulnt ions to pi-evcnt oppres- HUtn. Itut miieh of the restrictive economic legisliition of for- mer nm-.H has been class legislation, based upon the sujtpo^ed iieccHMity of imiintaining the established order of society. .\n(l pvon to-day there nuiy ])e foinid instanci-s id" police legislation not only ai^ninst fraud and op[(ression, but against disorder, § 13 ECONOMIC AND NON-MATEKIAL INTERESTS. 9 disease and accident, which is in reality legislation favoring certain economic interests against injurious competition. Much of this legislation, it is true, is also class legislation in a mod- ern and benevolent sense, based on the theory that the power of the state should come to the aid of those who are economic- ally and socially weak, and should tiMiipcr the UMturnl incquiili- ties in the struggle of life. The exercise of the police power over economic interests may be divided as follows: 1. protection against fraud; 2. protec- tion against oppression and the promotion of economic liberty ; 3. public convenience and advantage ; -t. compulsory benefits. § 13. Non-material or ideal interests.— The cultivation of moral, intellectual and aesthetic forces and interests which advance civilisation and benefit the community in innumerable ways, cannot be a matter of indifference to the state. This do- main was formerly left to the church, and the church regarded it as her right and duty to keep movements and aspirations of this character under her control. The church, having lost her political authority, has become one of the numerous voluntary associations pursuing ideal interests. To some extent the functions of the church have been assumed by the state, so especially the important tasks of education and poor relief, which, as dealing with dependent classes, may properly be regarded as primary social interests. The state moreover in many other ways supports and encourages the higher and less urgent social interests: by granting facilities and exemptions to private enterprise, by disseminating information, by organ- ising scientific work of its own, by maintaining institutions, museums, etc. All this the state can do without compulsion or restraint. The exercise of the police power might conceivably serve the purpose of guiding and checking intellectual move- ments so as to further the ideas of the government of what is beneficial to society or state. Such a purpose is however disclaimed by liberal governments, and the guaranty of free- dom of religion and of speech and press removes the pursuit of ideal interests on the whole from the operations of the police power. § 14. Political interests.— Political interests as distinguished from those which are moral and intellectual vnelude the ef- ficient operation of the governmental machinery, and the maintenance and strengthening of the institutions, traditions 10 GOVERNMENTAL POWEKS. 5^ 13 and sentiments which eonstitule what we call nationality. The latter purpose justifies the exercise of the power of eminent domain, but not a material impairment of private rights with- out compensation.^ As for the well-working of the governmen- tal machinery, it may depend on or involve two entirely differ- ent sets of conditions: The standard of performance of pub- lie functions, and the good will, approval and acquiescence of the people at large. The control of public functions belongs to the corporate powers of the government. In prescribing the duties of officers and of municipal corporati(nis, or disposing of their official rights and powers, the legislature is not bound by all the limitations on its power created in behalf of private liberty."' The same is probably true where the legislature regu- lates the conduct of elections. The right of suffrage is indeed confcrnMl by the constitution, and cannot therefore be circum- scribed by arbitrary legislative conditions; but it is neverthe- less a j)ublic function, the efficient exercise of which requires a large amount of administrative machinery; the citizen there- fore cannot claim the same liberty in voting as in the conduct of his |)rivate affairs, and election regulations may be regarded as conditions annexed to the enjoyment of a privilege. So far as Ibr altitude <>1" the people toward the government <'an lie controlled by governmental restraints, such restraints would fall under the donniin of the police power. In former times the state aimed steadily to influence political sentiment by {)rohibiting the expression and dissemination of disaffection, ami by enfon'iiig at least oulwai-;iit at le;ist to secure this libei-ty by Hpecial guaranties. Tli>' eonsl itntiimal provisions lieju-inM- npou • Thn ({"^■'rtiinoiit nC flic I'liiliMJ iii;iy \>r r<(|iiii('il In he incscrvcd, Hinttf) may ('oiKlcnin privat)' pron- u|m)ii |iiiymoiil <>(' oH(< of proMiTviny a tlioy arc privad- pmiHilv. I'Vciidi ' ■-• rirni I-;'" - iukI. Ifiiitc.l law Marcli .'<(», IHST, |)n. but its aulhorit,\ may have no other sanc- tion than the oath and conscience of the legislative factors of the govcrnupiit. The Swiss constitution e\|)i-essly provides that the hiWH and genei-al resolutions enacted \)y the Federal AHKcmbly and the treaties ratified by it shall he hindiiiL;- upon the federal courts.'" In the (iiiman states (in the lOnipife the, probh'tn docs not i-xist since tin- constitution is changeable i^HwijMt Kcilcral (!onHtitutifni, Art. li.'J. § 18 CONSTITUTIONAL LIMITATIONS. I3 in the forms of statutory legislation) it is understood that a statute enacted in due form cannot be questioned by the courts." The German view is that the power to make laws under the constitution necessarily implies the power to inter- pret the constitution, and that the department called upon to interpret in the first instance must be presumed to have been ^uiven power to make its interpretation conclusive. The Ameri- can view is that the power to apply and enforce the law neces- sarily involves the power to choose between two conflicting? laws and to give effect to that having superior force, ignoring that of inferior authority. This view is also conformable to the theory, which is accepted almost as axiomatic in our jurisprudence, that the interpretation of the law is a judicial and not a legislative function, Avhereas the German view ex- presses perhaps more truly the idea of the co-ordination of the legislative with the judicial power. The question is one of fundamental constitutional policy, and in America has been settled from the beginning of independent government in favor of the courts. The judicial power to declare laws un- constitutional has been approved by experience as one of the most valuable features of American government ; it is acqui- esced in by the legislative power, and it has in some instances been recognised by the constitutions themselves.^^ § 18. Specific limitations upon police legislation.— The con- stitutional limitations upon police legislation are partly specific and partly general. The principal specific limitations are di- rected against legislation establishing a religion or forbidding its free exercise, abridging the freedom of speech and press, and assembly, restraining the right to keep and bear arms, and authorising unseasonable searches and seizures. Retroactive legislation is restrained by the prohibition of ex-post facto laws and of laws impairing the obligation of contracts, and the power of eminent domain is restrained by the requirement of compensation. It is clear that a vast field of legislative j)Ower is not within these restraints. If the constitutions were narrowly construed they would furnish no safeguard against laws restraining the freedom of occupation, and of migration and settlement 11 Georg Meyer Staatsrecht, p. 1- Constitution of California. 1. 519. §22; Constitution of Ohio, IV. §2. 14 OOVEKNMICXTAL POWERS. § 19 Avitliiii the stiite, prohibiting- organised associations, or limiting the power of individuals to acquire or dispose of property or to make contracts. Ji 19. General limitations. — To prevent oppressive legisla- tion of this kind the courts must rely upon the general clauses of the con.stitution. Of these the duty of the equal protection of the laws enjoined upon the states by the federal constitution is perhaps the great- est safeguard of justice. The etfect of the principle of eciuality upon the jiolice power wall be fully discussed in a subsequent portion of this treatise. It is necessary here to say a few^ words regarding another general principle which the fourteenth amendment couples with that of equality, nam-'ly. the principle of due process of law. 55 20. Due process of law. — The guaranty that no i)erson sluiU be deprived (»f life, liberty or property without due pro- cess of hiw may be traced to the Great Charter and was origi- nally intended as a safeguard against the arbitrary and des- potic exercise of exeeutive power, and not rovision that i>rivate ])rop- erty nnist not be taken i'or public use without cdiiipcnsal ion, and thai the obligation nf cunt rads nnist not be ini|)aircd. .\ii Hct of legislation taking life, libei'ty or pi'opcrt\ and not cov- ered l)y eithei' n[' these clauses was pmbably not tiioui;lit of when tlie first eoiistilulions were framed. At the [ireseiit time howevei- the idea ol" due prcicess is Iri'dy a[)plied to legislation, and nieaus with regard to it "coiirorniit.\ to the Mettled maxiniH of free government."'-' Where an act of jf(»vernirie!it is basetl upon tlie especial circumstances of a liolf V. O'lJi'illy, 74 N. V. iiHiialiy iileiitificil witli in<"r)r|ir()fess to apply or to make laAV, and the nature of law implies the idea of restraint according to intelligible principles of reason. The peculiarity of American jurisprudence and gov- ernment lies in the i)ossibility of subjecting legislation to judi- cial control witli a view t<» I'uforcing these principles and limi- tations. In one view of the matter, it is still the government, and only a ditferent department of it, which conclusively deter- mines whether a given act is within the principle of reason or not. But the great advantage of the American system is that the power of conclusive determination is Avithdrawn from a body accustomed to follow considerations of expediency' and interest, and vested in organs which by virtue of their consti- tution. iiu'IIkkIs of |)i'(icc(luf('. .-iiid t I'.'iditions, are peculiarly (pialitieil ami apt to give etTei-t to the claims of reason and ju.stice. ^ 21. Justice and judicial policy.— The guaranty of due I)roc»'ss is thus a guai-auty against any abuse of governmental power undci- tlu' plea of public policy, but it cannot be as read- ily construed into a guaranty of a certain system or theory of government. Our constitutions, however, contain other gen- eral clauses. Thus they state the principle of the Declaration of Independence that life, liberty and the pursuit of happiness are the inalienable rights of man, that governments are insti- tuted tovseeure these rights, and that the enumeration of e<'r- tniii ritrhls in the constitution shall not be construed to imj)air other riv'hls retained liy the people. Tf these clauses can be reganb-<| ;is binding upon the legislature and as eiulxxlying a definite theory ol" j,'overnineii1 . then it follows that the jioliey of the h'trisiaturr can be met by the policy of the constitution, and eoTlHe(Hieiit ly lie (ivecridcii by the courts uildei' the J)lea of justice. The coiifliet between justice and policy becomes here in real- ity nothing more than a conflict between dilTerent policies, and the judicial control over legislation assumes a tloubtful aspect. What is meant by liberty depends \ryy nuK'h ui)on eiionomic^ and social ideas; should tlim llic |)ri'cise eonlrnt of lil)eiiy be. held to he fixeil by the constitution, or to be variable in accord- ance with chatiging ideas as to the pfre definite terniinol- (578; Loan Association v. Topeka, 20 offv; there i«, however, authority for Wall. 655; Lowell v. lio.ston, 111 the wider use. So in Xew Orleans Mass, 454. As to money not raised Ons f'o. V. Louisiana I^i^ht &c, Co,, by taxation, see ITooixr v. Emery, 14 11.') V. H. n.'O. "We may not im- Me. 375 and nolo on p. 11211, Thay- properly refer to that power [police cr's (.'ases on T'onstifiitional Law. |K.wer) the authority of the state to Jo St. Louis v. Hill, lid Mn. r,-27 ; create educational and charitable in Si. Louis v. Dorr. 145 Mo. 466; At- ... .^^ ,|p,j provide for the es torney (iiMicra! v. Williams, 174 1 i'-nl, nuiinlcnance and con- M.-iss. 476. 55 X. E, 77; I'arker v, trol of public hinliways, turnpike Commonwealth, 178 Mass, 199, 59 N, r..:id«. canaN, wharves, ferries .-ind V]. 634; Dillon Munic. Corporations. U'UHTiiyh lines, and the drainint: "f 8 599. See §181. infni. s 04 CUKPOK AT E ACT 1 V IT ^- ; L 1 C !•; .\ .S l',S. 1 ; j is not regarded as primarily involved in tlu^ expenditure of public funds. Individual liberty may suffer indirectly through excessive growth of state enterprise where it discoui-agcs private initi- ative. The Supreme Court of ]Massachusetts has held that the legislature cannot authorise a city to engage in the business of supplying fuel to its inhabitants. 2" State activity may also prejudice private interests through discrimination; therefore it is commonly provided that the state may not in its institu- tions give preference to any one form of religious belief, and that it may not make donations for sectarian purposes. There is generally a tendency to secure the principle of equality in the distribution of the advantages which are at the disposal of the public. 21 The principle of equality of benefits being se- cured, the fact that they must be ultimately paid for by taxa- tion is too remote to make the exercise of corporate powers felt as a burden. The result is that the range of the internal police is wider than that of the police power. § 24. Power over licenses and privileges.— The police power is the power to restrain common rights of liberty or property. When it is sought to exercise rights which are not common or fundamental, still more when special privileges are asked, the state may grant the required permit or license upon such con- ditions as it pleases, without observing the limitations which otherwise hedge about the exercise of the police power. The restrictions upon the exercise of corporate rights afford th-3 most conspicuous illustration of this ; others are found in fish and game laws, and others in cases of qualified property. When the state grants a bounty it may determine the conditions upon which it is to be obtained with the like freedom -. so the United States may regulate everything pertaining to the payment and receipt of pensions, including the compensation of pension attorneys.22 20 Opinion of Justices, 155 Mass. ment might constitute itself an 598, 30 N. E. 1142, 15 L. K. A. 809, agent for the relief of the communi- 1892. More recently the justices of ty, so that money expended for the the Supreme court of Massachusetts purpose would be money expended have expressed the opinion that in for public use. In re Municipal Fuel case of a scarcity falling short of a Plants (Mass.), 66 N. E. 25, 1903. famine, but yet so great as to create 21 So especially in the Civil Serv- ■svidespread and general distress in ice Laws. the community wliieh cannot, be met 22 Frisbie v. United States, 157 U. by private enterprise, the govern- S. 160. •_>() GOVEKNMEXTAL POWKKS. § 25 The doctriDe promulgated iu the Dartmouth College ease-^ that a corporate charter i.s a contract, raises the question to what extent the state may become bound by and to the condi- tions which it annexes to the grant of a license or franchise. It is obvious that if a grant is protected by the federal consti- tution from impairment, the state instead of having a greater, has really less power over holders of franchises than over other property holders, after it has once made a grant without reser- vation. To a certain extent this result follows from the doc- trine of the Dartmouth College case ; in many respects, how- ever, and especially as far as the primary social interests of safety, order and morals are concerned, it has been counter- acted by the development of the principle that the police power cannot be barganied away, and that therefore any at- tempt of any one legislature to bind the right of subsequent legislatures to guard the safety and morals of the people by appropriate measures must be null and void and cannot con- stitute a valid contract. ^^ The application of this principle will be discussed in con- nection with the subject of corporate charters and of vested rights under the police power. A number of state constitu- tions-'" expressly provide that the police power shall never Ix* so abridged as to permit corporations to conduct their business so as to infringe rights of individuals or the general Wfll-b«tiTn I'Vrtili/.in^' Houri, Montana, Tionisiana, Pennsyl- <■ V. TTy.lo Park, 97 U. H. vnnia. » •' :<>i» IJ<-arties to them are punishable by imprisonment in the peniti'Utiary for a term not exceeding ten j'ears. If it be con- ceded tliat trusts and marriages between first cousins may be constitutionally forbidden, yet they are distinctly mala pro- hibita and not mala in se ; the legislature condemns Avhat is (lone in iiiost civilised communities with impunity, and what may lutiK'stly be regarded as harmless. Can it be that the legis- lature has i)()wer to further any policy it may deem wise by visiting ui)on offenders the extreme penalties of the law .^ Not, it would st'cni. in states which, like Illinois, have constitutional provisions to tlif effect that all peiuilties shall be proi>ortioned to the nature of the offense; nor, it is conceived, in other states in which the constitution is silent on this point, so long as im- plied limitations u|)on the legislative power of any sort are recognised. Laws of this n;itui-e ;ii-e not enforced, and tluMi- enforcement would shne|< the cdninion sense of fitness and jus- tice. The recognition ol' ,1 pfiiK-ipJe to the effect that violations of po.sitive regulations not involving any moral turpitude can- not coMHtitutionally Ite trciled jis infamous crimes might W(>11 be jtiHtified by tin- intritisic difference of purpose between the I)f»li<'e power and the criminal law. ^0 Tho 'liHtinrtinn if m'r-iiiH tn lie oh thnn the law; in tlio jiidgnipnt of rern(;niM'<| l,y .Miiiiti>f(f|tiirMi wlipn ho fiiiiicH, if is rnflior ftic l;iw wiiicli uayn: " In fho oxoroiw of pnliop, if pnniHhoH fli:in (he inaciafrnto. " i* rnthcr fho mnjjixtrnto who jMiniBh- (Spirit r.f the I,:iwh, X.XVI, -24.) CHAPTER II. METHODS OF THE POLICE POWER. § 27. Outline.— The police power like other powers of gov- ernment may be subjected to limitations both from the innni of view of its purposes and from the point of view of its means and methods. An analysis of the various interests which may or may not be controlled by the exercise of compulsion, will reveal the limitations of the first class; those of the second class will appear from an examination of the rights upon which the police power acts and the particular manner and degree in which the free exercise and enjoyment of these rights is impaired. As to the rights acted upon, they are comprised under the two great heads of liberty and property. Liberty has various gra- dations: we may distinguish the liberty and integrity of the body, the liberty of private conduct, liberty of social inter- course, liberty of opinion, and the liberty of assuming legal relations with other persons, which we may designate as civil liberty. Civil liberty is the chief means of acquiring property, and many forms of property can be enjoyed only through acts of disposition with regard to them, so that bare undisturbed possession is of no value. The restraint of civil liberty may un- der circumstances virtually result in the taking of property. As both rights are coupled together in the constitutional pro- tection, a rigorous distinction is often immaterial. As to the manner of its operation, there are two funda- mental problems which will require extended discussion: how and to what extent does the principle of eciuality control and modify the exercise of the police power ? and : may the police power go so far as to take away or destroy a person's prop- erty, and if so under what conditions? The latter problem in- volves an inquiry into the sanctity of vested rights and the legitimacy of retroactive legislation. From the absolute taking of property we can in most cases distinguish measures of restraint and regulation, which deter- mine the conditions under which a right is to be enjoyed or exercised. As these are the normal methods of the police 23 04 METHODS OF THE POLICE POWER. § 28 power, a preliminary examiuatiou of their various forms will further illustrate and exphiin the general nature of the power itself. ;; 28. Restraint as distinguished from regulation and pro- hibition.— The term restraint may be used to designate the for- biildiug and punishing of the excess or abuse of liberty or property to the inconvenience or injury of the commuuity; regulation differs from restraint either by detining by a pre- cise line the limit beyond which rights may not be exercised, or by creating ])ositive duties which without the statute would have no existence; by prohibition is meant the forbidding of acts in them.selves harmless because they may be carried to excess. Restraints in the sense here indicated are covered by the common law of misdemeanors, especially the law of nuisance, conspiracy against trade, and seditious libel. The general rule that "when a thing is done to the injury of the whole com- munity, and suflieient in nuignitude for the tribunals to notice, it is cognizable criminally,"-"' which is also embodied in the offense of a common nuisance,'" makes it possible to prosecute and punish many forms of evil or excess not otherwise tie- fined. The j)olify of the lavr in allowing such prosecutions flilVers radically from that i)ursued with regard to graver crimes, all of whi"-h ;in' delined with very considerable minute- ness. The offense of ;in injury to the public is vague not (udy because the elements eonsliluting it are not specilied, but be- cause nt) definite right or duty is violated by it. Fraud and libel involve fal.sehood which is a distinct wrong, but con- s|)iracy against trade ;in(l seditious libel (if true) violnle only a (trevailiiig niiii"l;ir_v v. Si. Louis (oiiiity t 'onimiHsioncrs, linen of IuikIn whii'li Imvr Iktoiiic (!;" Minn. mO; 'M T>. I{. A. C?!'. unrcrtniii in niinlo|;niiN; licrr- Hk ii, |». flriitioii Miimi of lonrm- vary with 1^71. ' " 'i |.;irli. iilnr ciiw, tluTcforc, no- •i'- Low v. |{c<-h Piintiiijr (;„., ^l iiwl hniriiiK in rc<|iiircr) \\l. 5)8; I,'.- M..rjrji„, L'li ('..1, M.''). tc"Q9 EEGULATlUN. o the individual interest must yield to this ixM^uiremeut. Thus in case of vaccination it would not be possible to inquire or discover whether each child vaccinated was predisposed to ward snuiU-pox. Where a board of health required that certain articles should be disinfected at the expense of the owner, it was not competent for an OAvner to show that his goods d;<: not require disinfection. The danger being general a measure would be defeated in its beneficial eifect, if the question of ils necessity could be raised in each particular case.-*''' §32. Standards of articles of consumption.-''— Some eoui-t-j have said that the legislative determination that some sul)- stance or mixture is intoxicating or unwholesome is conclu- sive. ^^^^ But such a statement cannot be accepted without (puili- fication. Alcohol is as a matter of fact intoxicating if taken in suficient quantity. To cut off controversies as to the intoxi- cating quality of different kinds of drinks,-"^*' the legislature may define as intoxicating all liquors containing a certain i)er- centage of alcohol. If such liquors when consumed to execs'^ produce in normal eases intoxication, they are very properly described as intoxicating, although they may not have that effect in each particular case. Where the alcohol is so much diluted as to be harmless, a legislative fiat will not make it intoxicating. But if the legislature for the purpose of pre- venting evasion or in order that an appetite for stronger liquors may not be fostered,^" deems it wise or necessary to forbid any alcoholic admixture, it may do so since it thereby interferes at most with the gratification of a pleasure. So the standard of pure milk may be so fixed as to exclude th<' addition of water or coloring matter-*^ and it may be for])id(U'n to sell cream as such which contains less than 20 per cent fat.'- If a considerable admixture of l)oracic acid to milk tends to ae Train v. Boston Disinfecting drink is intoxicating is ordinarily :i Company. 144 Mass. 523; 11 N. E. question of fact. Topoka v. 7.\\- 9:j9, 1887. Conipaguie Fraucaise v. fall, 40 Kan. 47; 1 L. R. A. 387. Louisiana State Board of Health, 4o state v. Guinness, 16 R. 1. 4(i I. 186 U. S. 380. *i Commw. v. Wetherbee, 153 Ma^•s. "See also §§274-286. 159; 26 X. E. 414; Commw. v. 38 State V. Intoxicating Liquors, Schaft'ner, 146 Mass. 512; 16 X. K. 76 la. 243; 2 L. R. A. 408, 1S88; 280. State V. Campbell, 64 X. H. 402, 13 -i^i State v. Crescent Creamery C.., Atl. 585. 83 Minn. 284 ; ,54 L. R. A. 466. 39 The question whether some 28 ^lETHODS OF THE POLICE POWER. § 32 injure health, it is legitimate for the legislature to determine the quantity that may be added, but if a slight admixture is not only perfectly harmless but positively useful in keeping milk from spoiling, the absolute prohibition should be re- garded as exceeding the just limits of the police power. This is the view taken in New York.-*^ In Massachusetts where the absolute prohibition was upheld, this point Avas not noted,-*-* while ill Iowa the legislative power in this respect was held to be absolute.-*^ In ^Missouri the prohibition against the use of alum in baking powder was sustained, the court refusing, in the face of conflicting testimony, to take judicial notice of the fact that alum is innocuous.^*' The regulation of food stufts or other articles of consumption has for its object the protection of health or the prevention of fraud. The latter purpose requires a wider power than the former, and the courts go very far in supporting the principle of positive regu- lation. That direct imitation may be forbidden has been con- ceded in all decisions on oleomargarine legislation. The Court of Appeals of New York has moreover held that the legis- lature may not only prohibit the coloring of distilled vinegar in imitation of cider vinegar but may forbid the addition of any foreign coloring matter whatever.-*" So long as the color- ing serves no useful purpose such a regulation remains within the bounds of Avhat is legitimate, for, as the New York court points out. it tends 1o cliiuiiiale difficult questions of fact by a general rule. In Ohio it has, however, ])ei'n held that coloring matter may not even be added, though it gives aroma and fla- vor.'"* In New Jersey it had been held that the ]irohibition of coloring matter in oleomargarine does not exclude the use of a substantial ingredient like cotton seed oil. though it does color;'" and the Ohio court makes, a distinction between ingre- dients wliieli ;ii(' substantini and tliose which are not ; it would perha[)s be better to say that nolliiiig of iiit rinr,lc, viilue may be <-i Ppoplc V. MirHi'ckiT. !()!» \. V. 1(1.-); :5!l X. K. SU:{. Tliiit cil.uinj,' M; 61 N. K. mxi; r»7 I,. I{. A. 17S. whicli (h.oH not (IcfciiniMir ,,r ,„ii- <* Coniniw. V. Oor.Ion, \r,<) Maws, ((al dclcrioralioii is not in il.solf H; .71 N. K. 701». adulteration, see Pcoplo v. Jon- «a.HtHt«' V. Hrlilr-nkcr. II'J Iowa iiinRH (Mich.). 04 N. W. 216. lii-2; r,] ].. H. A. :517. tsWcilpr v. State, 5.3 Oli. SI. 77; <" Stulr V. Layton, 100 Mo. 471; !<> X. K. 1001. ♦'»! H W. 171. i''Ainrnon \. Xcwion, .^O N. .] . L. •Jininl, II.-. x. y. ni;}. § 33 EEGULATION. 29 f'or])idden unless the primary purpose is to imitate and de- fraud.^*^ In the Ohio ease the foreign substance had as a mat- ter of fact been added in order to give a misleading color. Upon principle the power of regulation should allow the setting of positive standards and limitations, provided they are not carried beyond what is reasonably calculated to pre- vent evasions and to avoid difficult controversies as to facts, and provided they are not so fixed as to prohibit practices which are both clearly harmless and positively useful. § 33. Regulation by municipal authority.— It is generally held that a positive limitation by municipal authority is iiot conclusive, but may be shown to be unreasonable. The courts have especially refused to recognise in a number of cases terri- torial limitations for off;ensive establishments and employ- ments."^ A strict view of the power of municipal corporations is also taken in England.^- AVhere the indictment is under the general criminal law, proof of actual nuisance is properly in- sisted upon.^^ On the other hand so far reaching a limitation by municipal ordinance as the establishment of fire limits within which wooden buildings may not be erected, has been upheld in the majority of jurisdictions.-'^^ Where the law authorises cities to confine the places where sales of intoxicating liquor may be made to the business por- tion of the city, the city may by ordinance declare what shall constitute the business portion of the city, bounding it by designated streets and avenues. Such declaration is at least prima facie binding, although evidence may be admissible to the effect that the declaration is wrong as a matter of fact.'^'^ The Supreme Court of Illinois has laid down a three-fold 50 People V. Biesecker, 169 N. Y. 52 Addison on Torts, 54. 53; 61 N. E. 990; 57 L. E. A. 178. ss State v. Edens, 85 N. C. 522. 51 As to hospitals, Bessonies v. 54 See § 141, infra. Indianapolis, 71 Ind. 189; as to sr. -Rowland v. Greencastle, 157 cemeteries. Lake View v. Letz, 44 Tnd. 707; 62 N. E. 474, modifying 111. 81; as to keeping animals. Ark- on rehearing an earlier decision in adelphia v. Clark, 52 Ark. 23; ex the same case in which it had been parte O 'Leary, 65 Miss. 80; as to held that the city had to prove in slaughter houses, Wreford v. People, every case that the place was lo- 14 Mich. 41. See as to this §§ 177- cated in the residence portion. See 179, infra. 58 N. E. 1031. 3Q METHODS OF THE POLICE POWER. j^ :]4 classitieation of nuisances for the purpose of determining the extent of municipal power to declare nuisances: 1. those which are nuisances per Si\ denounced as such by connuon law or statute ; 2. those which in their nature are not nuisances but may become such by reason of locality or management ; 3. those which in their nature may be imisances but as to which there may be honest differences of opinion in impartial minds. As to 1 and 3 the municipal declaration is conclusive, but as to 2 the municipal power is confined to such as are nuisances in fact."''' ^ 34. Choice between measures of equal efficiency.— Assum- ing that several measures are equally efficient to avert dan- ger In Ilea It li or safety, it would still seem to be within the legislative power to select one method and require its adoption, for it is easier to enforce uniform police regulations than a great variety of measures, the efficiency of each of which would be a (juestion of fact in each particular case.^*^ The limit of legislative power in this respect is that it may not prescribe the use of a method or article which can be jirocured onl}^ from one source of supplies, since this would create a monopoly.^** A certain (juality may be prescribed, but it must not be assumed that only (»iil' produce)- or manufacturer satisfies the required standard. Where a i-egulation proceeds from an administrative board, however, lln' pnwii- delegated to it often does not extend to prescribing one particular method, but it is sufficient if the object whicli tlic I)oaivl is to secure is accomjilishcd by the indiviilual owner in some way.-''^ Compliance with the I'cgula- tion then protects the owner li-oiii pi-osecution ; if he selects 6" UiuKcl V. MiisImkII, 11>7 Jll. i20; front part of the lot, tlie measure 63 N. E. 10H(5; .IH I,. H. A. li(>(). .•viilontly also serves tlio imrposo of "•7 WhtTc tiiiH roiisiflcratidii docs w iilciiiiiff tiic jjiihlic strcH't witliout licit enter, it is ilifliciiit to say cxj>ensc. l'i'ili;i|is tliis lu.iy be sus- whether the le^^iHhitiire may parliiii- taiiKMJ wlicrc iirivalo rigiit.s are not hirize ifH ini'iiHiireH «o as to ))r('jinlic(? materially prejndiceil, ;is a rofjula- • if iH-ollcHMly injure private rijjlils. tion of llie nse of I lie property, htit I'erhapN the coiirtH miyht control tlie see St. I.oiiis v. Hill. I Hi Mo. .")Ll7. re<|iiirement if it eoulil lie made to '^ Slate v. Hantee, 111 In. 1; ")'.] nppeiir that the parlicnhir ciioiee L. U. A. Td.'i. i«iilm«'rveil nlterior pnrpoMeH. So tlic! f'» Morfonl v. Board ul lle.illli, (11 Inw ttiiiy (iroliihit that tlie Imildinj,' N. .1. Ti. 3S0, IHOS; \V:iiii|>|i,i Reser- hil Im' eovered with Itiiildiii^K to voir Co. v. Mackenzie, l',\'2 Mass. 71; more than four flfthH of itH area; Sihoeii v. Athinta. '.)7 Ca. 697; 33 Imt if the one-fifth or |iart of it Ih I . U. A. 804, (applied to ordinance). rur|iiired to Iw h-ff vacant in the j; ;{5 PREVENTIVE REGULATION. 31 his own method he takes tlie risk of creatinjr or continiiinfr a nuisance, hnt the mere departure from tli<^ official |)ian is no offense. It cannot Ije left to an administrative officer to determine conclusively the existence of a danger and the choice of meas- ures to be taken against it, since that would hivolve an uncon- stitutional delegation of legislative power.^" It seems, how- ever, that this objection may be avoided by interpreting the delegation of power as vesting the administrative officer merely with a discretion in requiring usual and appropriate safe- guards against a danger, subject to judicial control as to the existence of the danger and the reasonableness of the relief. Such delegation of powers is certainly in accordance with legis- lative practice, so especially in dealing with a danger of epi- demic disease.®^ EEGULATIONS TO INSURE COMPLIANCE WITH LAW. §35-57. § 35. Prevention through publicity.— Among the positive re- quirements of the police power the measures securing publicity and notice in matters subject to restraint or regulation, deserve special mention. The power of police regulation finds its sanc- tion generally in a penalty affixed to every violation, which penalty consists in fine or imprisonment or both. The infliction of the penalty belongs to the criminal courts, and concerns the police powder mainly as an indirect means of securing compli- ance. The object of the police power is, however, emphatically prevention of mischief and danger, and hence prevention of violations of its rules, and it will therefore naturally resort to such subsidiary means of control and restraint as will tend to insure compliance with the regulation in the first instance. These subsidiary means are therefore common features of police •legislation. The principal forms are : license and security, no- tices and signs, and reports and registration. In their turn they can be enforced only by resorting to criminal, civil or administrative proceedings; but if properly selected, compli- "o Schaezlein v. Cabaniss, 135 Cal. power to fix stamlards of purity 466; 67 Pac. 755. of food is upheld in Isenhour v. '!i So also in the matter of fire es- State, 157 Ind. 517; 62 N. E. 40. capes to be placed on tenement The general subject of the validity houses, Arms v. Aver, 192 111. 601; of delefration of legislative powers 61 N. E. 851. The delegation to is not within the scope of this the State Board of Health of the treatise. 32 METHODS OF THE POLICE POWEK. j: S6 ance with them is more easily seciiivd than the accomi)li^huiiMit of the ultimate object without them, and their operation will in many instances determine the success or failure of regulative legislation. Measures securing publicity are especially valuable and may often be relied upon to bring about the desired standard of private action without prescribing that standard in jiositive terms. Many practices cannot stand the light of publicity, and will be abandoned voluntarily, or under the stress of public opinion, if secrecy is impossible. The requirement of publicity is now generally advocated as the most effectual means of deal- ing with the abuses of monopolies, both restraint and regula- tion having proved unsuccessful. Under such policy compul- sion may still be necessary to secure information through re- ports or testimony, but otherwise administrative action will consist largely in supervision, advice, and the collection and publication of statistics. The history of the IMassachusetts Railroad Commission is often pointed to as an example of a successful policy of this kind.*''^ About one-half of the states liaving railroad commissions confine their powers to super- vision without regulation.*'^ LICENSES. § 36-39. i; 36. Licenses or permits are administrative acts authoriz- ing th<' doing of a thing which is subject to police regulation or restraint. Tlie license or i)fi-iiiit is given if the proper au- thr)rity is satisfied tliat the imposed regulations have been or will be complied wilh. The steps to be taken before the licenst^ i.s issued iire prescribed l\v statute or onlinance. .V typical oa.se is tliiit ' Hadlcy Kuilroa•' HtimHon Atncricnn Statute Tiniv ' ■ '"n. J], h.-jzl'. Hr,7c>, s.ssa. 37 LI(JEi\8KH. essary administrative expenses, there can be hardly any question as to the legality of this form of control."^ If tiif regulations involve considerations of personal qualification, the principle of equality comes into play, and licenses of this nature will be discussed later on.°^ § 37. License or occupation tax.— Often, however, the license bears no relation to regulation or supervision, and is imposed as a source of revenue, being in reality a tax called license or occupation tax. For the purpose of determining whether cer- tain constitutional provisions regarding taxation are applica- ble, or whether a municipal corporation under its charter may impose license fees, it becomes in many cases important to dis- tinguish the license as a police measure from the license as a revenue measure.^^ That a revenue is produced above the ex- penses of supervision, and that this result was contemplated, 64 Com. V. Plaisted, 148 Mass. 375. 65 See §§ 639-655, infra. 66 The distinction between a li- cense and a tax is illustrated by the liquor legislation of Ohio. The con- stitution of 1851 provides that "no license to traffic in intoxicating liquors shall hereafter be granted in this state, but the General Assembly may, by law, provide gainst the evils resulting therefrom. ' ' The earlier license laws were expressly repealed in 1854, and under very considerable restrictions any one had the right to engage in the traffic. By act passed in 1882 (Pond law) the right to sell liquor was made dependent upon the payment of a tax and the execution of a bond; default in pay- ment of the tax was to forfeit the bond, and to engage in the traffic without the bond was made a mis- demeanor. This law was held to be a stringent prohibitory law as to those failing to comply with its terms, hence as to those complying with the act a license law in the sense of the constitution and there- fore unconstitutional. (State v. 3 Hipp, 38 Oh. St. 199.) Another act (Scott law) was thereupon passed in 1883, which likewise imposed -a tax upon the business. The tax was made a lien upon the real property on which the business was carried on, and it was made a misdemeanor to engage in the business without the consent of the owner of the property. This latter feature was held to vest in the owner of the prop- erty the power to license or forbid the traffic, and hence obnoxious to the constitutional provision, — a some- what remarkable interpretation of the act, or of the term license. The whole act was in consequence de- clared unconstitutional (State v. Sinks, 42 Oh. St. 345.) This decis- ion led to the enactment of the Dow law of 1886, which imposed a tax and makes it a lien upon the real property on and in which the busi- ness is conducted, but omits the provision requiring as a matter of law the consent of the owner, al- though of course in view of the lien clause his consent will as a matter of fact be indispensable. This act was upheld, the difficulty which a 34 METHODS OF THE POLICE POWKK. >^:I7 ..r even tluit it is called a license tax. does not make it neces- sarily a tax if in reality its primary purpose is to restrain and <-ontrol a dangerous business.^' The revenue may be a means of meeting governmental cliarges created or increased by the l)usiness which is placed under license.*^^ On the other hand it has been held that there may be a tax, although the payment is a condition precedent to the right to carry on a business, whereas this feature is normally characteristic of a police license.*'^ It has been held that where licenses in reality are taxes imposed by a municipality, the right or license to carry on the occupation being derived from a state law. a penalty cannot be imposed for a sale without a license."" In the case of many occupation licenses, it is impossible or unnecessary to distinguish between the regulative and the financial character jterson not owning real properly A\oulniH' rlanne in th«' r-oiiHtitution nimilar to thnf of Ohio. (Young- blood V. Soxton, 3'-' Mich. 406, J87r..) •» people V. Murray, 149 N, Y. :ir.:. imm. •'8 Baker v. Cincinnati, 11 Oh. St. 534. «n Banta v. Chicago, 172 111. 204. "The occupation may be lawful in itself and not subject to pro- hibition or regulation by the state, yet it may be j)roliibited iu order to compel the taking out of a license if tlio i)urpose is to raise revenue by uH'ans of license fees;" citing Coolcy Taxation, p. 597; also State ex rel Auburn School District v. Poyd, 63 Neb. 829; 58 L. H. A. 108; but in Ohio and ^lichigan where un- der the constitution the licensing of liquor business was forbidden, it was I. ('Ill tliiit tlic tax was distinguished from I ho license l\v tiie fact hat its nfui-payment does not render the biisiness illegal, ami lliat it does not ic(|uire :i preliminary .iilmiiiistrative act (o alluw a person to eng;ige in il. (Sec note (5(5.) 70 Robinson v. Mayor of I'ranklin. I Hnmph. (Tenn.) 156. A stalnte n-.jiy |)unish non-payment by a line, though the license is regardeil as a tux. Kosenbloom v. Slate (Neb.) H9 X. W. 1053, 57 h. K. A. 922, 1902. § 38 LICENSES. -^5 of the measure.' ' The license may also he a form of controULii«; the payment of the tax, heinf;- merely incidental to the revenue system, and furnishing' no j)Ositive authority to carry on the husiness.'- § 38. License as a police measiu'e. — The license as a police nieasin-e is i)ro])ei'ly only an incident to restraint or regulation and should, therefore, not be upheld where there is no power to restrain.'^ Upon this principle an ordinance imposins: a license fee upon the owners of bicycles was declared illegal in Illinois, the court holding that the use of streets for private vehicles is as much a matter of common right as their use for walking on foot, and that the charter power to regulate the use of streets cannot be made the foundation for a restraint upon the exer- cise of common rights except for specific purposes of order or safety. The ordinary use of the wheel was held to justify no restraint upon this principle, and upon this theory the decision seems sound; for it would not he maintained that a license might be required for walking on the streets."^ It would have been different had there been a charter power to impose license taxes upon all vehicles."''' A license has also been held to be invalid as a police measure, where there was no attempt to regulate the business which was made subject to the license.'" Discriminative licenses may be justified by the conditions of a business ; thus it has been held that a municipal corporation may impose a license fee on meat shops kept outside of the public market, since they recpiire special supervision ;'' and licenses may be graded according to the amount of business done."^ $ 39. High license as a method of restriction.— A license may also serve the purpose of restraint by fixing the fees so high as to reduce the number of those engaged in the licensed ■1 Bostou V. Seliaffer, 9 Pick. 41.1. "'•State v. ^Joorc, llo X. C. GiC, "2 License tax cases, 5 Wall. 462. but in that case the license was pro- "" Bessonies v. Indianapolis, 71 hibitivc, and it seems that as to the Ind. 1899. See also Sluiman v. Ft. point of the license being invalid as Wayne, 127 Ind. 109; 11 L. R. A. a police regulation the case is over- 378. ruled by State v. Hunt, 129 X. C -* Chicago V. Collins, 17.5 111. 445; 686, 40 S. E. 216. 51 N. E. 907, 1898. "Ash v. the People, 11 Mich. 347. "5 Tomlinson v. Indianapolis, 144 "« People v. Thurber, 13 III. 554. Ind. 142; 36 L. R. A. 413; Ft. Smith Timm v. Harrison, 109 III. 593; Sac- V. Scruggs (Ark.) ; 58 L. R. A. 921. nimento v. Crocker, 16 Cal. 119. 3(j METH(,)L)S OK THE rOT.ICK rowKi;. ^ 40 business. The restraint of the liquor business by high license is conspicuous as an illustration of this. Even a municipal cor- poration may lix licenses with that end in view.'-' High license atfords a convenient method of restricting- numbers Avithout discriminating between persons; this is the policy of the present excise law of the state of New York."*," Where business is of such a character as to induce or facili- tate fraud, high licenses have been upheld though admittedly oppressive in their operation; so a license required of itinerant merchants, of $25.00 a month in each town in which the business is carried on;^i but a license of similar amount was held void, because unreasonable, where it was imposed by ;i munici- pal ity.'*^ Licenses of a prohibitive amount should be treated as a pro- hiliition of the business affected, and will he discussed under that head. 5; 40. Bonds and deposits. — Somewhat related to the re- qiiiri'iiirni of a license is that of a bond or de])osit to secure the faithful compliance with ]iolice r(\uulations, and the satis- faction of liabililies that ni;i\- ai'ist' from their violation, or to servo as an indemnity fund i'i»r persons who have suffered by the fraudulent conduct of the business. As a subsidiary meas- ure of police control it appears to be pei'niissil)le wliei-evei- a license nia\- bi- rr(|uired, but it is resorted to Irss frequently. ,\ bond is i-e(|uired not uncommnnly of li{|uor sellers and of auctioneers; deposits are sometimes rccpiired of peildlers, ititierant merehants, of persons advertising baidvrui)t sales, abovf all of j)t'rsons or corporations engaged in the (luasi-i)ublic busines-s of bunking, insurance, or \va rehousing.^-' NOTirKS. MMv'KS AND SKiXS. ^4.1. ('i-rtain forms of notice .-ind pniilicity (lireetl\' pro- iiioti- public order and convenience, and may be tlierelore i"e- «piircd without ulterior |Mirpose; so the alVixing (»!' sti-ect iinni hern to houses. Sncli ;i fcgidiit inn is un; Tpnn«7 v. lAtn?.. 1« Wi». nOK. h'i Wi^^inH v. ("hic-i^r,,, cs Ml. :',7J; •« IVojilc Px n-l KinHfcM v. Mnr- lla\vtlilaee ereditoi-s and <»thers in a position to jud|/e of the cjtmpany's financial condition. We speak of re- ftorts where infftrmatioji is given periodically or wlienevei- de- manded: registraticMi is very often in the nature of a pre- liminary notice, a derdaralion advising the authoi-ities of the exiHtene*' of some fact, such as the estal)lislnnent of some busi- ucHH, giving location, name of owner and other particulars."" ••Htate V. Snow, Ml In. rt4'J; til,. ■•■' In Ccniian.v ll |HMiiri^ ,,f j,„y R. A. .Tiri ; Stnt«' V. Shoroft, MO Minn, pjaic of l)\iHincss ri'ijnires .micli ua, r.o I,. \i. A. rtOd. n..i ;.■<;. •• Donwy v. Htnto. 38 Tex. (rim. App. 527; 40 I,. H. A. JOl. § 43 EEPORTS AND REGISTKATIUX. 39 A license regularly serves at the same time the purpose of registration, but where it may be refused or is connected with the payment of a fee, it becomes a substantial restraint or bur- den. The freedom of assembly was recognised in France by a law which substitvited for the re(iuirement of a license that of a preliminary notice to the police.^^ § 43. As applied to business. — Reports are required chiefly of corporations engaged in a business affected with a public interest : railroad, insurance and banking companies ; to a less degree of other corporations. They are further re(|uired where some condition imminently dangerous to life or property calls for measures of protection; thus sanitary authorities must be notified at once of cases of contagious disease, and certain dis- eases of animals must be brought to the notice of veterinary surgeons. A number of states have recently enacted statutes requiring notice of the inflammation of the eyes of new-born infants. Reports are also required of businesses placed under supervision because facilitating the commission of crime or affecting public morals.- In many cases registration of deal- ings, in books kept by the dealer, which are open to inspec- tion, is suf^cient. The courts have gone far in sustaining such requirements. Thus the Supreme Court of Illinois upheld an ordinance of the city of Chicago which provided that every pawnbroker should deliver daily to the superintendent of police a book showing every article pledged and the name and resi- dence of the pledger, etc.'-'- The court relied upon the fact that the business was carried on under revocable license, and that the city had charter power to suppress it altogether; the con- ditions under which it should be allowed to be conducted were therefore held to be entirely Avithin the discretion of the city council. A similar decision was made in Missouri.^^ But in an earlier Illinois case an ordinance requirement that druggists should report by affidavit all sales of liquor made by them was held unreasonable and void.^^ The court spoke of the sanctity of private business and of the constitutional prohibition of unreasonable searches; however, it was sufficient that the re- ((uirement was regarded as oppressive, and, as was intimated in the Launder case, the business was one which could not be "1 Law of June 30, 188T. 93 St. Joseph v. Levin, 128 Mo. y-; Laniidor v. Chicaiio, 111 111. 588; 31 S. W. lOL 291. •■>* Clinton v. Phillips, 58 111. lOi'. 40 METHODS OF THE POLICE POWEK. § 4^ prohibited. l*rovisioiis reqinriny drugyists to keep records of sales of liquor or poison, and imposing a similar duty upon dealers in -weapons, are not nneommon. ^ 44. Statistical information.— As a rule tlie reiiuiremeut of reports and registration refers to matters whieli are subject to regulation, and the same considerations which justify the exer- cise of regulative power, also justify subsidiary means. In some cases, however, the requirement does not serve the i)ur- pose of regulation, but is mei-ely intended generally to inform the state of the condition of the people, tlieir industries and otlu'r interests. This is analogous to the power exercised in taking the census whicli is justified primarily by the need of electoral apportioiniiciil. but in tlie second place also by the necessity of giving the stale such information as will make intelligent legislation possible. Hence the law may require under j)enalty that the (pu'stions put 1)\ einnnerators be an- swered,' excepting probably su<'li (lueslions as bavi' no con- ceivable reference to legislation, as for instance questions con- cerning i-eligious Ijclief. 'I'lic requirement of reports of vital statistics (i)irths and deaths).- lias been upheld.-' In sustaining a coal weighing act tlic Supreme* Court of Kansas relied in l»art upon its bcnciit in .securing ini'(»rnia1 ion regarding an im- portant industi'\' of the state;' but tlie Supreme Court of Illi- n(Ms has held that coal weighing acts, if otherwise unconsti- tutional, eaniiol lie snstaine(l merely on the gi'ound that the reeor-ds ol" tlh' weighing give valiial)le statistical infornmtion : " Wc deny thai the bni'di-n ejiii be inqiosed 011 any corporation or individual not aelinLf undei- ,1 license, or by virtue of a franchise, bn\ing pi'operty or hiring labor, merely to furnish .statistics, unless upon due conqieiisat ion to be made 1 lierefo)-. "•'"' A recpiireiiienl foi- mere slatislical purposes must be I'eason- nble and not bui'(|eiisome or unequal: a liberal interpretation nf thi' const il u1 ional guaranty aitainsl unreasonable searches would sustain an aiiijile judicial control." .; 45. Passports and registration of strangers. The Chinese ••X«'ltiHi(tn act of 1S!IL' ri'<(uires of ('liinesc laboi-crs certificates ■ 1 iuii''. .\. 71. li. H, ■ .\Iillctt V. I'c.i.lc. 117 ill. L'iM. ^ KnhiiiMoti V. Iliiiniitiiii, (iO jnwii .'{(•.''i. '■■ n.iv.i V. r. s.. 1 ir. d. s. liKi. § 46 KEGISTKATIOX. 41 of residence without which their being in the country is deemed unlawful. Perhaps this is at present the only instance in this country (except in the case of convicts on parole), where regis- tration is made a condition of residence. A law of New York formerly required all immigrants to register their names and this act was upheld by the federal Supreme Court." It was also said in the Passenger Cases^ that every state has an unques- tioned right to require the register of the names of the persons who come within it to reside temporarily or permanently. This right is exercised in Germany, aiid formerly passi)orts were re([uired to travel from place to place, and no one was allowed to stay in a city for more than a few days without a permit— a system first introduced in Paris in 1792. That re([uirements of this nature are burdensome is undeniable, and is proved by the fact that most European states have abolished them. They may, however, be valuable aids in tracing criminals, and it would be difficult to point out a constitutional principle with which a general requirement of this nature could be said to be in conflict. § 46. Registration and equality.— But it would not be con- sistent with the principle of equality to require registration only of specified classes unless these classes are aliens not en- joying full constitutional rights. A statute of Illinois required that keepers of lodging-houses should keep registers of their lodgers accessible without charge to any person asking to see the same, and should file with the County Clerk sworn state- ments giving particulars as to the house and the number of guests.^ The act was held unconstitutional as class legislation since it applied to lodging houses only and not to boarding houses or inns.^^' The act was thereupon amended so as to apply to all lodging houses, inns and boarding houses, estab- lishing a full and comprehensive system of registration witb regard to all strangers not stopping at innvate houses, and any persons not strangers who may happen to use hotels and board- ing houses.i^ If the measure Avere purely and simply one of registration of strangers it might be objected that it discrimin- ates in favor of those visiting privately, but such discrimination TNew York v. Miln, 11 Pet. 102, lo Bailey v. People, 190 111. 28; 1837. 60 N. E. 98. s 7 How 1^83, 404. n Act May 10, 1901. oAct April 21, 1899. 42 METHODS OF THE POLICE POWEE. ^ 47 is fommou iu European cities aud cannot be regarded as un- reasonable; the measure, however, is in reality one for the regulation of the business of lodging persons for hire, and such regulation cannot be beyond the power of Ihe state. The act provides for a more extensive plan of registration than has been previously attempted under our system of government; but no attempt is made to enforce the law.'- IXSPECTTOX. § 47-48. 5; 47. Inspection and search.— The power of insi)ection is exercised as an mcideiit to regidations for the prevention of disease, accident or framl. It operates almost exclusively on buildings and machinery or other api)aratus, and on articles exposed for sale. The powei- of insi)ection is distinguishable from the power to search: the latter is exercised to look for pi-(ipeity which is concealed; the former to look at property which is exposed to i)ublic view if offered for sale, ami in 'nearly all cases accessible without violation of i)rivacy. Hence inspection d-oes not iHMiuire aiVulavit, prot)abh' cause or ju- dicial warrant, 'i'lie I'ight to inspect may he reserved as a i-on- dition in granting a license.'-' The constitutional aspect of inspection is, however, ditferent i-Objeclions to icyistraliun.— an ideal state of society, pviblicity Whore tb«> rcfurnfiiiiMit of refjistra- inij^lit he no objection, but the po- tion I'onflii-ts witli ciistoni or scnii- lice puwer in such a state would bo nient, it is apt to be rej^arded as superlluous. Vet tluTc is notliin;^ extremely oiliouH. No diflieuity la in our eonstitutional law whu-h felt in insisting n|)(in iicensea or i-er- woidd prevent the enaetnienl of a « nmnies in the furnnition (if the similar measure in this country, .just niHrria^e relation because .such pub- a.i we ha\r laws ir(|uiriiif,r rejKirts lieity in traditional. When, how- from all corporations. Public senti- <-ver, a (lerman law recently rei|iiired meat must be relied upon to pre- aH a cdnditiim of Ihe validity ;iliii){H in fnturen that tlie parties umiiI. .\ ;;nverniiient cannot be said nhotil'l be entered in an exjov- \»ith Ihe re<|nire:nenl, preferring to «!innu«nl iniist iiave powt-rs to exer liike their chanceM »H to the perform- cJHe in time nY enuM>cency which it nnee of e«.nlr»et»«. The dennind for would be tyranny tii!il Liiw. |.. -•• 10.') N'. V. Il'.H. «nfl. -"Stjifc V. MiirHliJill. i;i X. IK r));t; 75 7 Will IV I Vi.t.. rli. :5(5. 9 25. Sl:il.' \. MyorH, 4L' W. Vji. SL'12. ■1 Kx piirlr Jiukmiii, 51(5 V. S. 7'27, -' ('nUiux v. New ll:mi|iHliin>. 171 IH7«. I* H. :Ht; Phimlry v. MjissiKlniHctt.s, a«H«-o iijmi 9 TiH. ]',r} U. S. U]]. § 50 PREJUDICIAL MARKS. 43 §50. Goods marked "convict-made."— The decision in the Collins case establishes for purposes of interstate c(niiuieree the principle Avhich ought to be recognised for all i)urposes that the power to require the marking of goods may be exercised only so as to reveal their true character, and not so as to im- press upon them a character which they have not in reality. The Court of Appeals of New York has gone one step further, and decided that it may not even be required that the goods shall be marked so as to show their true origin or manufacture, when there is no real fraud to be prevented, merely for the purpose of making the goods distasteful and hinder their sale. It was therefore held that the legislature may not recjuire goods manufactured in prisons (not controlled by the state itself, the act applying only to prisons of other states) to be marked "convict-made."-'^ § 51. Goods marked "tenement made."— Perhaps the same objection applies to the requirement of marking goods "tene- ment made, "29 unless it can be shown that such notice serves a valuable purpose, and the same principle should be generally applied to all notices where the requirement plainly indicates an intent to harm a lawful business. The state should certainly not require notice to be given of certain facts, merely because these facts are prejudicial, when their concealment involves no element of deception or other danger, and when their knowl- edge will not aid some legitimate purpose. And if it is urged that the law may insist upon the statement of the truth regard- ing any matter, because the knowledge of the truth is generally beneficial, and may serve valuable legitimate purposes in the assertion of civil rights, it must be answered that the require- ment must operate equally upon all, and not single out special classes of goods or persons. That only the principle of equality could save such a requirement, is distinctly recognised in the Hawkins case. Perhaps it should be said that even where the possibility of deception exists, the requirement of particular forms of notice is not legitimate, when others are adeciuate. and those insisted upon are plainly intended to prejudice. This would do away with such an unenforceable requirement as that the innkeepei- 28 People V. Hawkins, 1.57 N. Y. 1, -•■' Mass Rev. Laws, i-b. 106. § .IS. 1898. 46 METHODS OF THE POLICE POWER. § 52 should orally inform his jiuests that he sells oleomargariue — a requirement found in a number of states. ^ 52. Resulting" injury. - Where, on the other hand, the primary purpose is legitimate, the fact that the nature of the business makes publicity odious, (hies not invalidate the retpiire- ment. Thus it is provided in a nundier of states, that rooms Avhere intoxicatino; liquors are sold shall be situatetl on the jrround floor of the buildiny, frontinjr on the street, so arranjyed with windows and <;lass doors that the interior may be on view from the street, that no screens, blinds, or other obstructions l)e placed so as to prevent the entire view of the room from the street. It is obvious that such an arrangement allows a police- man to perform liis duty in supervising the conduct of the busi- ne.ss without leaving the street. Uiit a reiiuirement which deprives tiie patrons of substantial comforts, as by forbidding the use of shades against the sun, is opjiressive, and can be uplield oidy where the business may be altogetlier ])rohibited. It is, therefore, regularly not within the scope of municijial ordinance pow(M"s.-'" but lias hrou upheM wIkmi iiiqx^sed by statute.:" I'pon ihf same jirin('ii)l(' llii' law may re<(uire notice to he irivcn of cases of infectious oi- contagious disease dangerous to tin* ])id)Iic health, althoii'_;h such notice may hi' prejudicial to the j)erson affected by the disease. •'- NOTICE Ul" \\ I\ N. K. Iii'.t. •. F'lihifiki fTniin.). r.J H. W. '.M.'t; •!-■ IVoplc v. Slmilv (Mi.l,.). bedience to its subpoena, or the subpoena of either of thtMu. or in any such case or pro- ceeding. "^^ In Brown v. Walker^'^ it was held that Avith this protection the witness mi^ht be compelled to testify. Four Justices dis- sented on the ground that the witness was still ex])osed to dis- grace and to the possibility of having to defend himself against the prosecution 1>rought notwithstanding the statute. When we consider that the constitution provides merely that no one shall be compelled in any criminal case to be a witness against himself, the ])urpose seems clear to protect from punishment, and absolute security from punishment should perhai)s be re- garded as sufficient to overcome a i)rivilege which, too liberally construed, might greatly hamper the discovery of truth in ad- ministrativi' proceedings. ^ 55. Obligation to report subject to claim of privilege.— The analogy between compulsory testimony and comjmlsory reports is obvious. Tlie constitutional ])rotection against self- crinnnation would not ordinarily render invalid a statute im- posing an obliu'ation to report; for the ])res\nnption is that the report called foi- will not reveal illegal conduct. Tf a ]iarty rci|Mii-iM| lo rc|)(ir1 I'ears that his report will make him liable lo prosecution, il will be incmnhctil upon liim lo claim bis consfi- tUlio|i;il in-iviletj-e, ;iii(| he ;i|(ine will lii' ivlieved. May the l;iw re(|llil-e ;i i'(|icirt mel-ely 1(1 the effect that its provisif>ns li;ive ni- h;ive iini heeii violated, |)i-(iniisiiiL:' at the iKit iiivo c-viiifticf ii|)()ii tiic trial of T\io|)l(> v. O'liiicn, (is \. K. ;{;").■!. iinother pcTNon wiflHuil ;ims(iii v. innki- liiM nwii ;;iil!f u|i|i:irriil , or jil iiovdni, Kid III. ()i;{; 4:5 N. 10. 7S1. IciiMt ciipalilc (if prodl', thoiijjli his 'rin- aiitlioril y of tlie V. S. Hniirciiif nccount of tlip tranmu-tioiiM HhonId vi!r )u! iiMcil nH (>viiicnc<>, it iH flic Htatcs in this m.itlcr, since 1 he rninforliinc of liiM coiKlitiuii, ami not I'iflli .\ mcnilinciil has im :\|i|ilica- aiiy want of huinanity in the Law. timi to I In- states. However, the Court of Appi-alH of •"•Aft l"el>. II, Ih'.i.'., lM Sn|i|.l. Ni'w York JuiH n-contly n'v«'rHfi| SO. S.e I'oot \. I'.M.Iianaii, 11.! I'e.l. itK poxition and adopted the view I.^ti, moru favoraJde to flw witness. :i"l(il T. S. ."I'.M, ISIIC. ^ 55 INCRIMINATING REPORTS. 49 same time immunity from prosecution l)y i-eason of anything' (lisolosed by the report? It may he contemk'd -with ^'roat foree that the spirit of the constitutional claus(! forl)icls examinations the sole object of which is to compel the admission of illi'<;al conduct. Yet such a requirement has been sustained in Illinois, where the anti-trust law requires of corporations statements under oath as to whether they are parties to trusts, ^ivinj; at the same time the necessary guaranty ag:ainst prosecution."*" The effect of such a Uiw would be that every corporation may violate the law with impunity, provided it is willinjr to disclose such violation. The prohibition of the law would thus practi- cally be confined to secret and undisclosed combinations. An act requiring- all printed articles which ar(' libelous to be signed with the true name of the writer,^i but containing no provision giving immunity from prosecution, is probably un- constitutional in accordance with the j)rinciples above set forth, while an act requiring all articles to be signed would be unob- jectionable.-*2 40 People V. Butler Street Foundry and Iron Co. (Til.), 201 111. 2.S6, 66 N. E. 349. 41 California Penal Code, § 259. 42 May an oflScer or shareholder of a corporation be compelled to testify or report, and the corporation be fined on account of matters thus dis- covered? As the shareholder pays part of the fine, it seems that it would be unconstitutional to fine the corporation. It -n'ould also seem inadmissible to treat oflScer and cor- poration for this purpose as dis- tinct. If a corporation is subject to criminal prosecution, it must have the constitutional protection against self-crimination, this however it can have only in the persons of its mem- bers and oificers; the incriminating testimony must therefore be gath- ered from persons not connected with the corporation in either ca- j)acity. However, see In Re Pooling Freights, 115 Fed. Rep. 588, con- Ira: "You are also instructed that this act of February 11, 1893, does not grant immunity from indictment and prosecution to a corporation even though its officers or agents have been compelletl to appear be- fore the grand .jury and testify to facts which would lead to incrimi- nate it, or produce books and papers of the corporation bearing upon the offense of which it is charged. The immunity of the statute is confined to the witness who gives his testi- mony, belongs only to him person- ally, and cannot, in the nature of Ihe thing, be extended to include the corporation ho represents. There is no vicarious immunity providcil for by the statute, and therefore the corporation carrier cannot become immune through the grace of the statutory pardon." 50 METHODS OF THE POLICE POWER. § 56 COMPULSORY ASSOCTATION.43 §56-57. j; 56. Legislation using it as a means of control. — Compul- sory association is a eharaeteristie of llic jxjlitical cnmniunily. the state and its subdivisions. It is also resorted to as a meas- ure of police legislation in tlie ease of certain improvements (drainage and irrigation) where the relative position of several pieces of land makes joint action necessary or beneficial."*"* As a means of police control compulsory association may be used to secure the better supervision of the conduct of certain forms of business which are subjected to regulation in the public in- terest. It is practically immaterial Avhether all the jx'rsons engaged in the business are forced 1o join the association or are made members of it by act of law, or whether an association which they have a right to join is given power over them, for in the latter case they are members at all events for the i)urpose of being liound, and it is merely optional with tliem Avhether they will jiarticipate in the exercise of tlu' association's power. The i^olicy of compulsory association is not a common ouv ill tliis country, and is j)ractically confined to tlie professions that have lo do with the public hi-alth (medicine and sni'gery, dentisti'\'. pli;ii-iiiacy, etc). Al an carl\- date the laws of New York provided that evei-y j^hysician and sni-geon. upon pain of forfi'iting his license, should join tlie comity niere. to employ in- spectors a>id inspect pharmacies, etc. lo examine applicants for lic«'iise and issue licenses for eu^jiging in the business of druggist or f)harmaeist (subject to lei^al re(|uireim>!i1s regard- iiii: Jipi)renticeship or erpiiv.-ileut expei-ience i. to rcfpiirc regis- tration of jtharmacies and ilrug st(U-i's. :ind to revoke licenses ^sSpo nlwi 95 .104. ■»4(t-444. ••"Article X I . I'uMir lleiilili j.aw **Hvo 85 440444. infni. of Now York. *^ 1 Krv. Mtafiif«'«, y. 4r.2. v; ,-j7 ('OM!*^LS()l;^■ associa'IMox. 51 for cause. It thus appears that the control of the business is vested in an extraordinary dejiree in the pcM-sons (•ni.'-;if_'-<'(| in thilt l)usin<'ss and thwers of the association should be strictly confined to tilt' administi-ative management of those interests of the busi- ness ill which joint and uniform action is a legitimate public concern. The policy of compulsory association should not be applied to callings, the pursuit of which is a common right and not de- |H'iidcnt upon license.'' PROHIBITTOX.-»« § 58-62. ;; 58. Meaning of prohibition.— By prohibition is under- stnod tliat letrislative policy which renders illegal some entiri' sphei-e of action or business, and not merely scune particular mode oi- form of it, or merely its exercise at a particular time or ill a j>arti('nlar phu-e, so that it would still be possil)ie to erii;age in the same pursiiil b\' an accommodation to legal vo- <|uirements. With rel'ereiiee lo any |iarlicular su)>,jeet-iiiat ler therefore partial jtrohibit ion constitutes regulation.''' rmlii- l)ition is of special constitutional interest only ^\ here it is not confined to acts intrinsically evil or harmful, but extends to practices which in the case of modei-ale or careful exercise may be innocent or harmless, and ai-e foi-bidden on account of a supposed tendency towanl abuse and injury. I'roliibition acts u|)on civil liberty, but may indirectly make projterfy less valuable by .•.• 8 VXA, ■ini. liil>i1' makes excep- tions in favor of nicdicin.il. saci-;i mmmiI;! I and nieclianical uses, 6»('ollinn V. Now Hiimi>Hliirr, 171 r-'* lioolic v. Slate, r frini'lulfiif, ho H. 6fl(i. nil lit jmliniNfrv, State v. Ki-iiil- r-" Hootii v. lVit|iic, lS(i ill. •».'.: worth (N, .T.). r»4 Atl. 'J»l. I'.i.otli v. lllinoiH, 184 U. H. 42.1. ^{lO i'];c)iiii;iTiu.\. 55 and there is no doubt that these exceptions are constitutionally required.^" §60. Trading Stamp Business/'^— The prohibition of the trading stamp business has been declared unconstitutional in several states,*'- but has been sustained in the District of Co- lumbia as involving- an element of gambling,''^ and in IMassa- chusetts in so far as it appeals to the gambling instinct, but not otherwise."^ It is difficult to see how the business can be treated as a form of gambling, but it may be conceded that it serves no useful purpose ; and if it is conducted so as to defraud the public, the policy of prohibition must be placed upon that basis. The argument against the validity of its prohibition proceeds upon the ground that the business furnishes a legiti- mate device to attract custom, and that the hostile legislation is merely protection against competition— a purpose for which the police power cannot be exercised. § 61. Ticket Brokerage."'^ — The prohibition of ticket broker- age (^ anti-scalper's legislation) has been upheld in Illinois, Indi- ana, Pennsylvania, and Minnesota, and has been declared unconstitutional in Ncav York and Texas.*^<* The legislation was undoubtedly intended as a protection against fraud; but none of the decisions can be taken as a clear adjudication either that the danger of fraud may, or that it may not, be met ))y the absolute prohibition of the business. In Illinois the pro- hibition was sustained on the ground that the sale of tickets was merely an incident to a business affected with a public interest, and therefore subject to the like ample legislative control as the latter. In New York the earlier statute was held invalid because it in effect granted a monopoly, in Texas, be- coSarrls v. Commonwealth, 83 Ky. wealth v. Sisson, 178 Mass. 578; CO 327; Commonwealth v. Fowler, 96 N. E. 385. Ky. 166. See § 222-224, infra. cs See § 291. 61 See § 293. ''■" Burdick v. People, 149 111. 600 ; «2 State V. Dalton, 22 Rh. 1. 77; 48 State v. Corbett, 57 Minn. 345; Fry L. E. A. 775; Young v. Com. (Va.), v. State, 63 Tnd. 552; Commonwealth 45 S. E. 327; People v. Dycker, 72 v. Keary, 198 Pa. 500; People ex App. Div. (N. Y.), 308; 76 N. Y. rel Tyroler v. Warden, 157 N. Y. Suppl. 111. 116; 51 N. E. 1006; People ex rel «3 Lansburgh v. District of Colum- Fleischman v. Caldwell, 64 App. Div. Gia, 11 App. D. C. 512. 46; 71 N. Y. Suppl. 654; affirmed 64 CommonweaWi v. Emerson, 165 61 N. E. 1132; 168 N. Y. 671; Jan- Mass. 146; 42 N. E. 559; Common- nin v. State, 51 S. W. 1126 (Tex.). 5tj METHODS OF THE POLICE POWEK. 55 62 L-ause it vested the railroad companies with dispensing- powers.^" The Texas court seems to reirard prohibition in this matter otherwise as lawful; the Indiana court quotes "without in any wise endorsing" from counsel's brief to the effect that the legislature may strike at a business giving rise to extensive frauds by prohibiting it altogether; on the other hand the New York court says that while stringent rules may be enacted to punish those who are guilty of dishonest practices, it is beyond llio legislative poAver to cut up. root and branch, a business that ma}' be honestly conducted to the convenience of the pub- lic and the profit of the persons engaged in it. ;:; 62. Oleomargarine legislation."'^ — The nu)st conspicuous instance of the prohibition of a useful industiy is to be found in the legislation against oleomargarine. Statutes forbidding the numufacture and sale of any article made of oleaginous substance or compound other than milk or cream, designed to take the ])huH* of butter, have been upheld in several states, inchidiiig Pennsylvania,'"''' ^Maryland."" and Minnesota,'' and the Penn.sylvania decision has been confirmed by the !Su- prcme Court of the United States."- Hul the Supreme Court in subs('(|u<'nt l\' declaring the proliihit ion in\ali(l for purposes of intcrstati' coiiiiiii'i-ci'' •■ h;is cast considerable doubt upon the sountlncss of its earlier ruling, and the statutes in (piestion having been repealed, no state a1 present adheres to the policy of prohibition. Tlie tlevelopment of the law has thus vindi- cated the position assumed l)y the Court of Ajjpeals of Xew York, wiiich in declaring the prohibitiiui invalid, said: "Who will have the temerity t(t say that these constitutional prin- ciples are imt \iolale(l by an fiiaet nieiil which absolutely pro- hibits an iinporlant branch of iiidiislcy foi- the sole reason that it competes with another, and may reduce the price (d' an arti- clf of food for till' hiinian race.'"""' It was assuMictl that frandnlent imitations of bnfti'r were .salisfactorily gnardi'd airainst by otJH'c legislation. The |)fo- Am til thiH HPO jiIhii .\II.O"1i \. '' Mullir v. ( 'liamhcrs, '.W Minn. ivopi.., 11(7 III. .''lOi ; (u N. E. r>;w. (ij». •"•HtMi 8 ->*.'{. Ta|'„wrll V. l*.MinHvlv:nii:i, 1'J7 U. •»» I'owpII V, CrtmtiKinwciilili. Ill S. r»7S. 1.1 Si, 'JOr», ';i ScJinlli'iiliiTyor V. PciniHylvuiiiii ■" WriKlif V. .SiHtc, 88 M.l. »:»$; 171 T. S. I. •«' ^'l "M. ■• IV(i|)lc \. AUox, '.111 X. V. :577, 1885. § g;j eeasonableness. 57 hibition of the manufacture of oleomargarine in semblance of yelloAv butter -is uniformly upheld and is conceded by the Su])reme Court of the United States to be a lee;itimate police measure though ali'ecting- interstate commerce.'"' This pro- liibition, it will be observed, leaves the industry intact, and strikes merely at a practice not essential to it. Since the repeal of the prohibitory oleomargarine legislation llie preponderance of legal opinion and practice seems \n Ix' against the prohibition of useful forms of industry and t)iisiiiess sim])ly l)ecause there is a liabilily to the peri)etration of fraud. The doubts concerning the validity of this kind of prohibitory legislation are strengthened by the fact that it is generally used for the protection of rival industries. Even the danger to health or safety should not justily llie absolute prohibition of a useful industry or i)ractice wbei-e the danger can be dealt with by regulation, and this principle has l)een enforced against the exercise of municipal ordinance power.'^^ THE PRINCIPLE OF REASONABLENESS." § 63. It is a well established principle that municipal police ordinances, like all other municipal ordinances, nnist l)e rea- sonable in order to be lawful."^ The Supreme Court of the United States has declared it to be an ancient jurisdiction of judicial tribunals to pronounce upon the reasonableness and consequent validity of the bye-laws of inferior municipal bodies,"'^ the "inferior municipal body" in the case cited being the Boa I'd of Supervisors of the County of San Francisco. It is possible to say that there is implied in every delegation of power to a municipal corporation a condition that the power nnist be exercised reasonably, and that therefore every uin-ea- sonable ordinance is ultra vires, and the court, in treating it as null and void, merely enforces the legislative will and prin- ciples of policy embodied in it. If the courts undertake to declaj-e a statute void on the ground that it is unreasonable, they must assume the existence "r> Plumley v. Massachusetts, 155 "See also §S 14-. 150, 178, 316, TT. S. 461, 1894. ?.79-386, 397, 449, 516. .550-554. Til Greensboro v. Ehrenreicli, SO ^r Dillon Municipn] ('(iriKPiations, Ala. 579, second hand clothing-; Com- § 319. momvealth v. Parks, 155 Mass. 531, "'•' Yick Wo v. Hoi)kins, 118 U. S. blasting of rocks. 356, 1886. 58 MKTHODS OF THE POLICE POWEK. § 63 of a standard of reasonableness whieli is above legislative policy. Do our constitutions embody such a standartl of rea- sonableness? In discussing this question we nuiy safely discard all argu- ments drawn from the assumption that unreasonable means absurd or plainly arbiti;ir\- ; statutes which deserve that desig- nation are not nuidi more ajit to occur than judicial decisions of the like character.'"' If on the other hand reasonable is understood to UK^nn well atlapted to the end in view, thei-e is practically no judicial claim to control the judgment of the legislature of what is rea- sonable. The courts are certainly emphatic in their assertion that they have nothing to do with the wisdom or expediency of legislative measures. The question of judicial power pr.ictically coniines itself to a third meaning of reasonableness, namely modei-ation and i)i'o- portionateness of means to ends. The earliei- attitude of the courts seems to have l)een that if il w;)> ackii(n\-ledgeil thai ;i condition consisted I'oi' legislative ;i('tioii, the legislature was sole and conclusive judge (under siiecilie constitutional limita- tions) to \\\\;\\ degree its ])OWer slioiiM be exei'eised. So it was said ill l>ro\vii v. .M;ir\land r"^' "(^{iicsl ions of power do not nc; Jai-obson. 179 T^. S. 287, 1000. 49 T.. R. A. 181 ; 57 N. E. 41. '^■"' Toledo &e. R. Co. v. Jackson- ville, (i7 Til. 37. (jO METHODS OF THE POLICE POWER. § G3 tiou that the principle of separation might be carried to the length of assigrniny: to black and white different quarters of the city for living or different sides of the street for walking, the Supreme Court said: "The reply to all this is, that every exercise of the police power must be reasonable." And in the matter of the regulation of charges, the Supreme Court has en- tirely abandoned the attitude expressed in ]Munn v. Illinois that the remedy for an abuse of the ]>0Aver must be sought al the polls and not in the courts. After declaring in the Railroad Connnission cases,^'-^ that the power to regulate is not a power to destroy, the court, in Reagan v. Farmer's Loan & Trust Co.'^" said distinctly : "There can be no doubt of the power and duty (of the courts] to inquire whether a body of rates imposed by a legislatui'c or a commission is unjust and unreasonable, and such as to work a ])ractical destruction of rights of property, and if found so to be, to restrain its operation." In Covington ike. Turnpike Road v. Sandford,'" the power of the court to inijuire into the reasonableness of a legislative rate was re- garded as establish(Hl beyond cpiestion, and in Lake Shore and .Michigan Southei-n K. U. Co. v. Smith"'- a rate fixed by statute was liwld to ])(• unconstitutionjil. Effective judicial limitations of the police poAvei- would be impossible, if llir legislature Avcrc the sole judge of the neces- sity of tile measures i1 I'lijictccl. The only ((uestion a court could then ;is]c in dealing \v\\\\ ijolicc legislation, would be: doi's a coiitiilion exist which juslilics any legislal ivc aclion.' lint the maiiitcnaiiiM' ol' private rights luidcr tlu' ii'([uiri'nien1s of the |»nblic welfai'e is a question of pro])ortionateiu'ss of nii'asures entirely. Liherl.\- and i)ropei'1y yield to the police power-. Iiiit not to tlie |i(iiiii of (lesl I'licl ion. While an (\xcessive degree of im|)aii-nient would as ;i rule be conti'iii'v to legislative jiK well as to conslitut ioii.il pnlicy. the liistor.\- of the i-cgulation of niilr«»ad charges has shown that the <|ucstion of the indirect and perhaps nnintende<| dcslrnction (»f private i-i^lit ina.v be- ennii' an important and extremely diflicnlt issue for determina- tion. In reserving the conclusivi- detei minMt ion of this issue to flieniMclvcH, the courts have lirnily esl;d)lishe(l the principle thlit till' duty of the reasonable exercise of the iiojice powei- is n coiistifnf ionul limilati(ui n|>on the letrislalure. There are few - iir; I', s. :{(i7, m 104 tt. S. .its. «"■ i-.i I- y :w^. U2 i7rf ret;ulatioii :ind coiisc((iicnt ly lilierty. \ l'f)SFTIVK rul,I.\Tl()\ OF 'I'lIK I'KDKlv'.X 1- COV- i;i{.\MK\T. §f,.l.n7. ..'65. The federal exercise of till- police jtowcr lluvnigh posi- tivi" Ipgisbition rests upon ll nuniei;iler| jxiwcis of ('ongi-ess under the constitution. The prnicip.il p(n\«'r looking to the 02 i; (;<; KllUKKAI. I'OLKi: LIU : ISLA'I'KJ.X. (J3 promotion of the internal pul)lic welfare is that of rf^Milatin*; commerce with foreign nations and anion^- Ww states. The power to regulate commerce includes the power to ptuliiliit and suppress objectionable forms of traffic.^ Under this powc^r Congress has also legislated regarding shipping and navigation, interstate common c;ii"riers, Mud combinations in restraint ol' trade. A combination of the i)owcr over foreign connuercc and the taxing power is found in the tariff legislation of the United States, while the contract labor law of 1885, tlie innni- gration law of 1908, and the legislation excluding vessels built abroad or owned by non-residents from American regis- try and from the coasting trade,- should be assigned to tlic power of territorial sovereignty. The power over coinage and over weights and measures has been expressly conferred, but the latter has not been exercised. In a sense the power to legislate regarding bankruptcies, and patents and copyrights, may be assigned to the internal police. Certain forms of business are dealt with in ilic exercise of the taxing power so the sale of liquor and of oleomargarine. The control of post offices and post roads, intrinsically a corporate power, is used for tlu^ suppression of lotteries and of obscene and fraudulent matter. By virtue of its general sovereignty the United States may take such measures as are necessai'y to insure peace and order in the performance of any of its func- tions.-' v^ 66. Commerce and Navigation.'— In view of all this legis- lation, it is impossible to deny that the federal government exercises a considerable police powei- of its own. This police power rests chiefly upon the constitutional power to i-egulate commerce among the states and with foreign nations, but not exclusively so. Thus the control over navigation is based upon the grant of admiralty and maritime jurisdiction and applies to vessels sailing betwanm two i)orts of the same state."' It has been said that a ship sailing from San Francisco to San Diego enters upon a navigation, and therefore upon a commerce, necessarily connected with other nations; "she Avas navigating with them [the vessels of other nations], and consequently with them was engaged in connnerce.'''^ But Avhile thus strain- 1 Lottery Case, 188 U. S. 321. * See §§ 341, 3412, 407. 2 Rev. Stat. Title 48. •'In re Garnett, 141 U. S. 1. :? Ex parte Siebold, 100 IT. tS. 371 ; c Lord v. SteamslHp Co.. 102 U. Ill re Dobs. 15S U. 8. r^(i4. S 541. (54 FEDEKAL UOVEEXMENT. § 67 ing the sense of the commerce clause, the decision clearly inti- mates that navigation of the high seas must be subject to federal law because it is national or international in character, and "vve may say, according to the language of Justice Wood- bury in the Passenger Cases, that "the police of the ocean be- long to Congress."" It must now also be regarded as firmly established that the power over commerce, while primarily in- tended to be exercised in behalf of economic interests, may be iLsed for the protection of safety, order and morals.^^ This seems to have been doubted formerly, for it is said that when the general government prohibited the import of obscene prints in th<^ tariff of 1842, it was a novelty, and was considered by soiiic more ])roperly to be left to the states." $ 67. Indians and territories.— The United States has exer- cised ail amjile police power over Indians partly under the commerce clause of the constitution,^'^ partly under the power to make regulations for the government of territories, partly under reservation of national control of Indian lands contained in the acts enabling territories to become states. The United States is vested by the constitution with the fullest police power over territories, and with regard to Alaska this power has been exercised to a consideral)le extent. With regard to • ithi'P organized territories, the policy of the government has always Ix'en to leave llie iiileriial ])oliee entirely to tlie territo- r-ial lejrisjatures, the only notable exception being the legisla- tion for the sui)pression of jiolygamy. In the District of Co- lMnii)ia. CotiLM-iss pi'i'Toi'iiis all funetions of state and local legislation. In llie control oi' public places and buildings acijuired I'or irdrial purposc^s a cession of juiMsdiction by the Htnte would oust its police power: it has also hovu held thai where Congress had (imIciI the jurisdiction over grounds occu- pied by a Soldiers" Ilnnie tiaek to the state, yet th(^ oleomarga- rine laws of the state cannot control the managing |)owers of th«" fcflcral u'«»vern(M' of the honse acting under authority of Coni:reHK. not at least to the extent of ai-rcsting or punishing hii?i. since the act of retrocession saverj tlie corporate |)()wer-s <>\ the lioani of uiaiuigerH.' ' T 7 How. 523. iMTnito.l Htntcs v. Tlolli.lfiy, 3 •Chnmpion v. Amen, 1SS V. S. Wiiil. 407; Same v. i:! (iMllmiH of rt'Jl (I.«itt«Ty Cnur). Wliiskr,v. l*."^ U. S. 1HH. •r, How. rtan. n ohi.. v. ThomnH. 17.T V S. l.'7(i. § 68 FEDERAL UUVEK.XMENT. B. CONTROL OVER STATK POLICE POWER. § GH-S;!. 65 § 68. The [nnx'\y restrictive or ne^-ative influence ol' tlie federal constitution upon the police power of the states is more important than the positive police legislation of Congress. A deliberate purpose to place the state police power under federal control can hardly be attributed to the framers of the constitution. The prohibitions upon state legislation con- tained in the original constitution are directed against inva- sions of vested rights by retroactive statutes ;i2 the first ten amendments apply only to the federal government itself; the thirteenth amendment interfered vitally with the police power of the states, but only as to the specific institution of slavery. The fourteenth amendment and the commerce clause are at present chiefly relied upon as cheeks upon the police power of the states. 1. THE FOURTEENTH AMENDMENT. § 69. — The fourteenth amendment, guaranteeing due process of law and the equal protection of the laws, is capable of aii interpretation subjecting all state legislation to a federal con- trol nearly equal in scope to that noAv exercised by the state courts, and, of course, superior to the latter. The view ex- pressed in the Slaughter House Cases that the chief applica- tion of this clause would be found in the protection* of the negro, has practically been abandoned. In the various railroad rate cases the Supreme Court has used the fourteenth amend- ment to control the police power of the state, if not as to the subjects of its exercise, yet as to the extent of permissible restraint; in several other cases the equality clause has been made the ground for declaring legislation, discriminating against classes of corporations or of business, to be unconsti- tutional. It is moreover a most significant fact that there i?. hardly any important police legislation which is not questioned in the Supreme Court as violating the Fourteenth Amendment, and the Supreine Court entertains such jurisdiction and ex- amines the merits of the claim. It is true that the Supreme Court has generally, in cases coming from the state courts, upheld the statutes attacked, and has taken on the whole the position that the judgment of the state legislature as to the 12 Legal tender of inferior cur- pairing the obligation of contracts, rency, ex post facto laws, laws im- ^^ FEDERAL CiOVERNMEiXT. § 70 requireinonts of the. public- welfare will be taken as conclusive against the claim of liberty, })r()perty oi- e(}uality. In this its attitude ditt'ers not only from that of the state courts, but also from its own attitude toward state legislation where it is im- peached on the ground of its interfering with the freedom of commerce. The same U'gislation has been upheld as an exer- cise of the domestic police pow(>r which has been condemned as interfering with the freedmii of coiuiuei'ce.''* The commerce clause is therefore now used as the principal check upon the police power of the states. Its operation is of such importance, as to require a separate examination. It will, however, be noted that it is framed as a power of i)ositive legislation, and not as a restraint upon the states, specific restraints upon the states being found in ihe prohibition of duties upon exports and inipiU'ts. IJy interpreling the federal ])ower as exclusive,^'* tlie yupreme Court has hki.Io it j)ossible lo ainiul state legisla- tion relating to coiinnerce. and has established fi-eedom of commerce throughout tlic I'liion witliout tlie aid of congres- sional legislation to that effect. "The constitution does not provide that interstate comiiuM-cc shall l)e fi'ee. l)ut liy the grant of this exclusive ])owt'r to i-egulate it, it was left free except as Congress might impose restraints.'"'-"' Tlu^ result is in accordance with tiw |)i-inciple of federal government which l)rings about an enlargement of liberty with a consolidation of ])olitical |>o\vei' over foi'iiiei'ly distinct ctuimiunities. 2. 'I'lli: coMMKK'ci: CI^.M'SK. §70-85. 5i 70. Different subjects of legislation, it is a finidamental principle of ihe rehilion between the comniei'ce clause and the police power s bcri^cr V. rcnnH.vlv»niii, 171 1'. S. 1. or witliin the t'r.lri:il territory in >♦ (lihJMiiiM V. ()>j U. S. Conntn. VI 2. eral conHtitiitioiiH tiioHe of AuHtriiiiu § 71 STATE LAWS AND COMMERCE. 67 consistent with the freedom of commerce or Avith the federal power of regulating commerce, may be divided into two classes : measures of revenue and measures of police. Some of the subtlest distinctions have been made by the Su- preme Court with regard to the former class, and they will be referred to only incidentally in this connection, since ques- tions of the taxing power are distinct from those of the police power. As for measures of police, the following are the prin- cipal subjects, Avhieh have come before the Supreme Court: immigration, navigation, navigable waters and bridges, rail- roads, certain forms of licensed business, especially peddlers, auctioneers and brokers; exports, foodstuffs, and intoxicating liquors. §71. Immigration and quarantine.^" — It is admitted and has been recognised by congressional legislation that a state may establish necessary quarantine measures, although they in fact regulate commerce ;^'^ but the state may not place burdens on immigrants generally, irrespective of specific dan- gers to health, safety or morals, nor may burdens be imposed according to the arbitrary discretion of an administrative offi- cer.^ ^ Even valid state regulations are liable to be superseded by federal legislation, and immigration is now regulated by act of Congress,-*^ still, however, subject to state quarantine laws.-^ Cases involving the exclusion of persons coming from other states have not come before the Supreme Court, but it has been intimated that a state maj^ protect itself from an influx of paupers, criminals, or persons affected with contagious dis- ease.2 2 § 72. Navigation and navigable waters.--^— The Supreme Court has held that a state cannot grant an exclusive right to run steamboats on its navigable Avaters, when these boats are used as instruments of interstate and foreign com- merce,-^ for the principle of the freedom of navigation is a 17 See §§ 101, 123, 271, 486-490. -'<> Act March 3, 1903, 32 Stat, at 18 Morgan &c. Co. v. Louisiana Bd. L. p. 1213. of Health, 118 LT. S. 45.5; Louisiana 21 Compagnie Francaise v. Louisi- V. Texas, 176 U. S. 1 ; Compagnie ana St. Bd. Health, 186 U. S. 380. Francaise v. Louisiana State Board -- Hannibal &c. R. R. Co. v. Husen, of Health, 186 V. S. 380. 95 U. S. 465. 19 Passenger Cases, 7 How. 283; -3 See §§ 159, 407. Henderson v. Mayor, 92 U. S. 259; 24 Gibbons v. Ogden, 9 Wheaton 1. Chy Lung v. Freeman, 92 U. S. 275. 1824. 68 FEDERAL GOVERNMENT. §73 matter exclusively of national concern. A state may establish pilotage and other harbor regulations,-^ this being a subject of local character, and Congress having recognised the state laws in this matter as early as 1789.-*' But the state laws are liable to be superseded by acts of Congress.-" Until Congress has acted,-^ states may authorise the building of bridges or dams across navigable rivers,^^ although navigation may there- by be interfered with, and local regulations regarding the opening and closing of bridges are valid, though they neces- sarily atfect and temporarily hinder the passage of ships.^" The Supreme Court has held that such regulations, being local and not national in character, are not encroachments upon the domain reserved to the exclusive action of the federal gov- ernment."^^ 1^ 73. Railroads and common carriers. ■^2_it is conceded that states may enact measures necessary to safeguard the se- curity of passengers though such measures are applicable to trains running between different states. Laws have accord- ingly been upheld which require the licensing of railroad en- gineers and exclude those affected with color blindness from pursuing that business, ■'^'^ or which require a special system of heating on railroad cars.'*-* A state may also prohibit and -5 Appointing places for landing, I'acket to. V. Tatlottsburg, 105 U. S. r,-)9, 188J. Rate of speed for Bicamers leaving wharves at Albany, People V. Jenkins, 1 llill 4(59, 1841. A federal prohibition against build- ing beyon ("arJier law must be re- g:irde Hmytli v. Ames, Kilt f'<» Sco § lil)4. I'. 8., 4(U5; L. & N. R. Co. v. Kon- fn McCiill v. California, Crutcher tiicky, 183 U. 8. MX \. Kcnunkv. ••• W. U. Tol. Co. V. Call I'nh. Co., r.-2 I{„hl)ins v. Shelby County T:ix- 181 U. H. 912, 1001. ii.jr District, 120 U. S. 489. *•('. & N. W. R. Co. V. i'nilcr, 17 -■ WilliiiniH v. Fears, 179 U. S. Wall. .''.HO. 1>7(), 1900. «7 R. & A. R. Co, V. I'attorHon T(.- r,t Nathan v, Louisiana. 8 Kow. I arc. Co,, 109 IT. S. .11.''., 7.'i, lM.'-)(). ♦« .MrCall V. Cnlifornin, I.V. IT. M. r.r, Kmerf v. Missouri, ir.C, IT, S. 104, 1H90, -jiM;. I S9r,. ♦"Cnifrhor V. Kentucky, 141 U. r-" VVclton v. MisHouri. 91 IT. S. « «7 I'^'O. -:.-,, ls7(i. § 75 STATE LAWS AND COMMERCE. 7^ mated in Brown v. ]\raryland,^" that such licenses are valid even though the auctioneer sell foreign goods, and a non-dis- criminative license tax upon auctioneers selling goods coming from other states has been upheld,"** it is true upon a distinc- tion between imports from other states and imports from for- eign countries, which has since been discountenanced.^'-* Cana- da allows the provincial governments to impose trade license taxes in order to raise revenue for provincial, local, or muni- cipal purposes.^*^ §75. Inspection la ws.*5i— Statutes requiring goods to be packed and marked in certain ways, before they are exported from a state, are undoubtedly regulations of commerce. They are upheld largely because the federal constitution recognises and sanctions their existence subject to the power of Congress to disapprove them.^- If non-discriminative, they are also up- held as to imports from other states,^ ^ and so as to provision for gauging boatloads of coal or coke before their sale is per- mitted.<5-* § 76. Liquor.^^ — The status of state statutes regarding in- toxicating liquors under the federal constitution has been the subject of repeated and not always harmonious adjudica- tions. In the License Cases^^ statutes were sustained which re- quired licenses for the retail sale of liquors imported from abroad, and for the sale, in original packages, of liquors brought from other states. In Bowman v. C. & N. W. R. Co.*'' it was held that a state cannot prohibit the bringing of liquor into the state since it is a lawful article of commerce, and in Leisy v. Hardin,*'® that the state cannot prohibit the sale by the importer in original packages. Leisy v. Hardin overruled Pierce v. New Hampshire, one of the license cases, although the decision in that case, while arguing for the poAver to pro- hibit, actually upheld only a license. The question would there- 5T 12 Wh. 419, 44.3. Turuer v. Maryland, 107 U. S. 38, r.8 Woodruff v. Parham, 8 Wall. 1883. 123. 0" Patapsco Guano Co. v. Board 39 BoTi-man v. C. & N. W. E. Co., of Agriculture, 171 U. S. 345. 125 U. S. 465. ''i Pittsburg, &c. Coal Co. v. Lou- «o British North America Act, isiana, 156 U. S. 590. 1^67, § 92. 05 See §§ 228-233. fii See §§ 276-278. 86 5 How. 504, 1847. 62 U. S. Constitution, 1, 10, 2; 67 125 U. S. 465, 1888. 68 13.5 U. S. 100, 1890. 72 FEDEKAL GOVERNMENT. § 77 fore arise whether a state could not even require a license of dealers in liquor, where the liquor comes from other states and is sold in original packages, a power which if exercised with- out discrimination seems to be conceded in Walling v. Michi- gan f'-* but the question is now without practical importance since Congress has interposed and has subjected liquor in the hands of the importer to the operation of state laws.""^ The right to manufacture liquor may be forbidden, though the li(|uor be intended for export, since manufacturing is not itself a transaction of commerce."^ In requiring licenses of dealers in liquor no discrimination may be made either against dealers of other states'^ nor against products of other states,"^ and provisions in a law establishing a state monopoly, by which a legal preference is given to do- mestic products of the state, are invalid.'-* Switzerland'^ and Australia"*^ make exceptions from the princii)le of federal freedom of commerce in favor of local control of intoxicating liquors. ij 77. Foodstuffs and live stock.'' — It has been held that a state may not absolutely forbid the bringing of Texas cattle into the state during the greater part of the year,'* since this was at tbe time regarded as more than was absolutely necessary as a measure of protection for the state. But laws creating the strictest rules of liability for infection spread by Texas cattle have been upheld,"^ and in Kimmish v. Ball the Snprenie Court said with reference to the Ilusen case: "No attempt was made to show Ili;i1 all Texas, Mexican or Indian cattle coming from the nml.iiial districts during the months iiieiitioiied. wfi-e infected with Ihc disease, or that such cattle wiTc so generally infected ih.it it would have been impossible to separate the healthy from the diseased. Had such jiroof bciMi given a dilTereiit § l.'iH. lor. 110 IT. 8, 54.'), and hoc KliodnH 7h ifannihiil, etc., H. R. Co. v. Hu- V. Iowa. 170 XI. S. 412. m n. !».') U. S, 46.'), 1878. -t Kirld V. Ponrm.n, I'JH II. S. 1, •" KimmiNli v. Bail, 129 U. S. 217; )H8«. \liHHouri, K. & T. H. Co. v. Haber, TiWnllinK v. Midiin,,,,, lIC I'. S. 169 U. S. 61.H. 446, 1SH6. c 7g STATE LAWS AND COMMERCE. 73 consideration of the court." Quarantine measures afrainst animals have since been upheld, although some federal legisla- tion exists regarding the same matter.^^ ^Measures requiring the inspection of animals, meat or tlour have been declared invalid because either directly or by their necessary operation they discriminated against the products of other states, so a law forbidding the sale of fresh meat un- less the animal had within twenty-four hours before it was slaughtered been inspected within the state, and a law requir- ing the inspection of all meat slaughtered more than one hun- dred miles away from the place where it was offered for sale.^^ A state statute forbidding the sale of oleomargarine made in semblance or imitation of butter, has been sustained in its operation on oleomargarine brought from other states r'^^ ]y^^i statutes have been held void as to oleomargarine so imported, which prohibited its sale altogether, or allowed it only if col- ored pink,^^'"^ the difference being that oleomargarine was a lawful article of commerce, but oleomargarine so prepared as to deceive was not. PRINCIPLES UNDERLYING THE DECISIONS OF THE SUPREME COURT. §§ 78-85. § 78. We can trace in the decisions of the Supreme Court upon the validity of state statutes under the commerce clause of the constitution, a number of distinctions, not all of which are marked by great clearness, and certainly not all of which have been easy of application. § 79. Business v^hich is commerce and business which is not commerce. — There is in the first place the distinction between what is commerce and what is not commerce. Not only the transportation of goods is commerce, but also the transporta- so Rasmussen v. Idaho, 181 U. S. §2 Plumley v. Massachusetts, 154 198; Smith v. St. Louis & S. W. R. U. S. 461, 1894. Co., 181 U. S. 248 ; Reid v. Colo- «« Schollenberger v. Pennsylvania, rado, 187 U. S. 137; Act May 29, 171 U. S. 1 ; Collins v. New Hamp- 1884, 1st Suppl. U. S. R. St. 436. shire, 171 U. S. 30. Congress, by 81 Minnesota v. Barber, 136 U. S. act of May 9, 1902, has since sub- 313, 1890; Brimmer v. Rebman, 138 jeeted oleomargarine imported into U. S. 78, 1891; Voight v. Wright, a state to the laws of that state 141 U. S. 62, 1891. enacted in the exercise of its police powers. 74 FEDERAL GOVERNMENT. § 79 tiou of persons and the eonveyanee of intelligence.' On the other hand a contraet of insurance with a foreign company is not commerce.- As to manufacture, it is within the control of the state because not commei'ce, although the product or part of it may be intended to be exported." but a contract of sale made with persons in other states to which the goods are to be sent, is within the control of the United States, although the goods are first to be manufactured."* While manufacture, the product of which is intended for export, is conceded to be subject to state control, in the absence of federal legislation, the question whether such manufacture is also subject to fed- eral control has not yet been passed upon judicially. It is true that the Supreme Court has disclaimed for the United States any control ovei- manufacturing, mining and agriculture in the states,-'' but it has had no occasion to make any binding decision to that effect. The case of Ignited States v. E. C. Knight Co." merely holds that a particular statute intended to a])i)ly to interstate commerce had no ai)plic« 125 U. S. 465. 76 FEDERAL GOVERNMENT. § 80 tioii of wharfs, piers and docks, and the like, which can be properly regulated only by special provisions adapted to their localities, the state can act until Congress interferes and super- sedes its authority ; but where the subject is national in its char- acter, and admits and requires uniformity of regulation, alfect- ing alike all the states, such as transportation between the states, including the importation of goods from one state to another. Congress can alone act upon it and provide the needed regulations. The absence of any law of Congress on the sub- ject is eciuivalent to its declaration that commerce in that matter shall be free." As a matter of fact the recognition of state control has been determined in many cases by the fact that in the absence of Congressional regulation some regulation by some authority was necessary. That the control of navigable waters should be national is clear Avhere these w^aters belong to several states in common ; and Congress has recognised this by placing navi- gable waters of the United States under federal jurisdiction and forbidding the erection of bridges without the consent of the Secretary of War.^" Congress has also legislated in a measure with regard to pilotage. Quarantine regulations in order to be effective should be national ami not local; local regulations have been recognised because some regulation was absolutely ref|uired. So. in tlic al)senee of fedi'i-nl legislation. state laws are ui)held requiring safety arrangements on trains and prescribing rules of (pialification for engineers, or forbid- ding the ruiniing of trains on Sundays. Yet nothing is ch^arer than that with r<'fer('nce to interstate tr;iins tlie operation of siu'li rules should be national and nnifoi-ni. If it has been said on the other hand tli;it the riglit to import goods and sell the inijtorts is nalionnl. jiinl tli;it llic non-action of Congress is equivalent to its (leel;ir;itin|| tliiit siieli rights shall lie Ti-ee and niu-i'striclcd. the Inlter arginnent is not ;il\\;i\s in accordance with the facts. I'ur when the ddetrine \v;is ;i|»|»lied (o intoxicat- int: liquors Congress answer-ed iinniediately hy the passage of Mil act decl;n*iiii. I'j, law. § 81 FKEEDOAJ OF (JUMAiEKCl-:. 77 ii 81. Point at which commerce ceases to be interstate or foreign commerce; original package doctrine.— The decision in Brown v. Maryland' '^ established with rej^ard to taxation of foreign imports the doctrine that the federal freedom of com- merce continues while an imported article remains in tlie orij;- inal package in the hands of the importer, and until he has sold it in such package, and that therefore the state cannot restrain the right to make such sale.''^ If the importer sells in the original package, the purchaser becomes subject to state law.-*' The reason underlying this doctrine has perhaps been best explained by Chief Justice Taney, in the License Cases:-' * ' The immense amount of foreign products used and consumed in this country are imported, landed and offered for sale in a fcAV commercial cities, and a very small portion of them are intended or expected to be used in the state in which they are imported. A great (perhaps the greater) part imported, in some of the cities, is not owned or brought in by citizens of the state, but by citizens of other states, or foreigners. And while they are in the hands of the importer for sale, in the form and shape in which they were introduced, and in which they are intended to be sold, they may be regarded as merely in iransitu, and on their way to the distant cities, villages, and country for which they are destined, and where they are ex- pected to be used and consumed, and for the supply of which they were in truth imported. And a tax upon them Avhih^ in this condition, for state purposes, whether by direct assess- ment, or indirectly, by requiring a license to sell, would be hardly more justifiable in principle than a transit duty upon the merchandise when passing through the state. A tax in any shape upon imports is a tax upon the consumer by enhanc- ing the price of the commodity, and if a state is permitted to levy it in any form, it will put it in the power of a maritime iJ^l^ Wh. 419, 1827. r.ge from state taxation thus appears I'-'The act of Maryland taxing ini- to have been recognised by state leg- porters (ch. 246 of 1821). was an islation before it was insisted on amendment of an earlier act (ch. by Iho Supreme Court. It would be 184 of 1819) taxing retailers of interesting to ascertain in what stat- goods except such as are sold by the nte the exemption of the original importers thereof in the original package first occurs, cask, case, box or package wherein 20 Pervear v. Massachusetts, 5 the same shall have been imported. Wall. 475. The exemption of the original pack- -i 5 How. 575. 78 FEDEEAL GOVERNMENT. § 81 importing: state to raise a revenue for the support of its own government from citizens of other states, as certainly and effectually as if the tax was laid openly and without disguise as a duty upon imports. Such a power in a state would defeat one of the principal objects of framing and adopting the Con- stitution. It cannot be done directly in the shape of a duty on imports for that is expressly prohibited. And as it cannot be done directly, it could hardly be a just and sound construc- tion of the Constitution which would enable a state to accom- plish precisely the same thing under another name and in a different form." It was formerly strongly doubted whether the doctrine applied to imports from one state to another,^^ but it was so applied in the case of Leisy v. Hardin,-^ with reference to an exercise of the police power. Since the decision in Leisy v. Hardin the doctrine has been modified in two directions: Congress by the so-called Wilson Act of 1890 provided that intoxicating liquors transported into a state should upon their arrival there become subject to the police poAver of such state, and not be exempt by reason of being introduced in original packages ;2-i and the Supreme Court by two decisions-^ restricted the protection accorded to original packages to such as were suitable for wholesale im- portations, leaving the state laws free to deal with small pack- ages intended for retail sales, especially where these small packages are brought in in larger enclosures or receptacles. Under llu' Wilson act llic federal immunity of commerce ceases only when the li(|iii3r, u, H. 100. r. s. lu.-j. 2* A Himilnr conccHHion Iimh Im-cii -■'■ Rhodes v. Iowa, 170 IJ. H. 412, §82 J'ju-:ei)().\i of ('i).,i.Mi;i^ci;. 79 the decision was by a bare majority, the question as to the right to import cannot perhaps be regarded as settled. § 82. The principle of non-discrimination.— It was said by .Iiistiee Field in liis eoncurring opinion in Bowman v. C. & N. W. R. Co. :2' ' ' It is evident that the value of the importation will be materially affected if the article imported ceases to be under the protection of the commercial power upon its sale by the importer. There will be little inducement for one to purchase from the importer, if immediately afterwards he can be restrained from selling the article imported ; and yet the power of the state must attach when the imported article has become mingled with the general property within its limits, or its entire independence in the regulation of its internal affairs must be abandoned. The difficulty and embarrassment which may follow must be met as each case arises. " It is how- ever clear that in one respect the freedom of commerce must accompany imported goods through all stages subsequent to the breaking of the original package, namely to protect them from discrimination by reason of their foreign origin. A state may under no circumstances treat imported goods less favor- ably than domestic goods. This has been recognised repeatedly by the Supreme Court,- ^ and while it was said in one case-" that it would be an error to lay any stress upon the fact of discrimination, yet this element has been absolutely controlling in a number of important decisions.-"^" The principle of non-discrimination suffers an apparent ex- ception in the case of quarantine laws. Measures of quaran- tine may affect commerce from other states or countries, oi- from particular foreign localities, while leaving domestic com- merce free. Since the source of disease is local, the preventive measure has likewise a particular local bearing, and there is in reality no discrimination, as the term is commonly under- stood. Such cases as Louisiana v. Texas,'^i and Compagnie 27 125 U. S. 465. The license exacted of importers by 28 Welton V. Missouri, 91 U. S. the law of Marvlniul which was de- 275; Tiernan v. Einker, 102 U. S. dared unconstitutional in Brown v. 123. ^laryland was $50 a year, while other 20 Bowman v. C. & N. W. E. Co., retailers of dry goods paid only $8; 125 U. S. 465. compare chap. 184 laws of 1819 with so Walling v. Michigan, 116 U. S. chap. 246 laws of 1821. 446 ; Voight v. Wright, 141 U. S. 3i 176 U. S. 1. 62; Scott V. Donald, 165 U. S. 58. jjQ FEDERAL GOVEENMENT. § 83 Fraueaise v. State Board of Health of Loiiisiana,^- however, clearly show the possibility of abuse of state power and the desirability of federal control, and it is merely a question of time when the whole matter of interstate and foreign quaran- tine will be covered by legislation of Congress to the exclusion of state law. § 83. Things which are lawful articles of commerce and things which are not— State power of exclusion.— Whatever just doubts there may be as to the right to sell imported goods, it is clear that the freedom of commerce involves the freedom of importation. The question then remains to be answered : to what extent and under what conditions does the right to import yield to state legislation .' In answer to this question the distinction has been evolved between things which are law- ful and proper articles of commerce and things which are not. "If the thing," says Justice Catron in the License Cases, "from its nature does not belong to commerce, or if its condition from putrescence or other cause is such, when it is about to enter the state, that it no longer belongs to commerce, or in other words is not a commercial article, then the state power may exclude its introduction. * * * That which does not be- long to commerce is within the jurisdiction of the police powei- of the states ; and that which does belong to commerce is within the jtii-isdiction of the United States. ''^^ It liiis been admitted by the Supreme Court of the United States that a state may exclude from its limits persons and ani- mals sufTcring from contagious or infectious diseases, as well as convicts, i)aupers, idiots, or lunatics, or other persons liable to Ix'f'oin*' a pu))Iic charge,'" and Congress has by statute placed tin- transportation of nitro-glycerine entirely within state control. •''•'■' lint not even lor the purpose of accomplisliing an object othcrwis<^ legitimate can the state exclude what is a lawful article of commerce, I'oi- i)y doing so it would assume control over interstate :iii(l foreign commerce. This doctrinr \\;is ;i|t|ilic(l to the attempted exclusion of in- trixicating liquors by a statute »tl" Iowa and the law was held 1o be inieonstitutional. "It is not an insjx'ction law; it is not a r|uarantinc or sanitary law. It is (\ssentially n regulation of •12 1H6 V. S. HHO. :ii II:iiiiiil);il. .■t... I{. Co. v. TliiflPii, •■•••'5 How, 504. iwo. m II. s. icr,. •'••'• U('\. St., Hfc. 4280. § g4 FREEDOM OF COMMERCE 81 commerce among the states within any definition heretofore given of that term, or which can be given ; and although its motive and purpose are to perfect the policy of the state of Iowa in protecting its citizens against the evils of intemper- ance, it is none the less on that account a regulation of com- merce. If it had extended its provisions so as to prohibit the introduction into the state from foreign countries of all impor- tations of intoxicating liquors produced abroad, no one would doubt the nature of the provision as a regulation of foreign commerce. Its nature is not changed by its application to commerce among the states. "^^ § 84. Conflict between state policy and freedom of com- merce. -v There is thus an apparent contiict between the com- merce power and the police power in which the police power must yield. Upon the contrary theory "the power to regulate commerce instead cf being paramount over the subject would become subordinate to the state police power ; for it is obvious that the power to determine the articles which may be the subject of commerce, and thus to circumscribe its scope and operation, is in effect the controlling one. The police power would not only be a formidable rival but in its struggle must necessarily triumph over the commercial power as the power to regulate is dependent upon the power to fix and determine upon the subjects to be regulated."^' In a majority of cases such a conflict will not arise since the power of exclusion is not apt to be exercised except against persons and articles manifestly dangerous and not recognised as within the protection of legitimate commerce. The statutes in connection with which the Supreme Court has had occasion to apply the idea of lawful articles of com- merce, have prohibited the sale and not the importation of the article, but as the right to sell in the original package is regarded as inseparable from the right to import, they may be treated as if they had prohibited the importation itself. There are three cases which illustrate the operation of the doctrine : Plumley v. Massaehusetts,^^ Schollenberger v. Penn- sylvania,39 and Austin v. Tennessec^*^ The Supreme Court 3c Bowman v. C. & N. W. R. Co., 38 155 U. S. 4GL 125 U. S. 465. 30 171 U.S.I. 37 Justice Catron in the License *» 179 U. S. 343. Cases, 5 How. 504, 600. 6 82 FEDERAL GOVERNMENT. § 85 has liekl that tlie prohibition of oleomargarine made in imita- tion or semblance of bntter prevails over the freedom of com- merce, bnt that the freedom of commerce prevails over the ])rohibition of oleomarjiarine not fraudulently made, and that it will also prevail ovtM* tlie prohibition of cigarettes. The Supreme Court has in other words sustained the exercise of state police power except when the state overstepped the just limitations of its power by extreme measures of prohibition. The adjudications regarding the right to sell oleomargarine"*^ reveal this peculiar ditference : the federal j^ower may protect oleomargarine as an article of commerce, but does not protect it as property;'- for once a jiai't of the mass of property in the state its sale may be entirely prohibited, and it may be made useless in lln" liands of th(> owner. The theory is evi- dentlx' this: the police jxnver rests Avitli the states and the 14th Amendment can be relied upon to check only a iiagraut abuse of that j)ower; the state determines what is injurious to till' people and in case of doubt as to what is a i)roper business, the United States yields to the state as far as domestic busi- ness is concerned. Commerce, however, is entrusted to the regulative jjuwcr nl" ijic federal government, and itf judgment as to what is an article of commerce is formed independently of state legislation, and in the absence of congressional legisla- tion this judgment must be exercised by the Supreme Court. Tt is ([uite conceivable that the Supreme Court will eventually protect property as it now protects commtM'ce, and will develop and enforce just limitations of tlie police ])ower under the Fourteenth AMiendnienl : in that event it will not allow an absolute prohibition to sell where it disallows an absolute pro- hibition III import. §85. Summary of principles. Tlie state may enact meas- ures for tlie proteeiioii of safel.w order ,111(1 morals, though afl'ecting foi-eign and iiilerstate coniiiii'i-ce. subji'ct to the fol- lowing |)riiu'iples : 1. Mvery measure of state letrislat ion. however legitimate in itself, yields to jyositive regulation of interstate oi- foreign coimnerce by .\ct of Congress, iucousisteiil with such measure or iiitendi'llfnh()12. ^ 35 FRERDOM OF COMMERCE. 83 2. Every state measure is void which in any way discrim- inates against interstate or foreign commerce, or against the products of other states or countries by reason of their foreign origin, unless the local conditions of the place of origin involve a peculiar danger of disease or other harm. 3. It is within the province of federal jurisdiction to deter- mine whether some article is a lawful article of commerce or not; a determination by the state is not conclusive. A state may not prohibit or restrain the importation of lawful articles of commerce, nor their sale, as long as they retain the char- acter af imports. The decision in Leisy v. Hardin^'' has shown how much the last one of these three principles interferes with the enforce- ment by the state of its domestic policy. That this result is not always desirable Congress itself has recognised by the enact- ment of the Wilson law nullifying this decision with particular reference to intoxicating liquors. The necessary effect of ham- pering the state police power to an undue extent will be the demand for federal instead of state regulation. The efficiency of federal administration is on the whole superior to that of the states, and in so far as police restraint is beneficial its uniform operation throughout the country is an additional benefit. In so far, however, as police restraint means inter- ference with the legitimate exercise of individual liberty, its centralisation can hardly be viewed with favor. An over- straining of the original package doctrine would have hastened this process of centralisation, and its partial relaxation in Plumley v. ^Massachusetts and Austin v. Tennessee must be welcomed as securing to the states a power which they were intended to retain, the unwise exercise of which will find its natural corrective in the more liberal policy of other states, and the arbitrary exercise of which ought to be checked under the Fourteenth Amendment. 43 135 U. S. 100, SECOND PART. THE PUBLIC WELFARE. FIRST: THE PRIMARY SOCIAL INTERESTS: SAFETY, ORDER AND MORALS. CHAITEK TV. PEACE AND SECURITY FROM CRIME. V. SAFETY AND HEALTH. YT. PUBLIC ORDER AND COMFORT. YTT. PUBLIC MORALS: GAMBLING. YIII. PUBLIC MORALS: INTOXICATING LIQUORS. TX. PUBLIC MORALS: VICE AND BRUTALITY. X. CONTROL OF DEPENDENTS. SECOND: ECONOMIC INTERESTS. XL PROTECTION AGAINST FRAUD. XTT. PROTECTION OF DEBTORS. XIII. PROTECTION OF LABORERS. XIV. COMBINATIONS OF LABORERS. XV. rOMBINATIONS OF CAPITAL: RESTRAINT OF TRADE, MANIPT'LATTON OF PRICES, AND TRUSTS AND MONOPOLIES. XVT. CORPORATIONS. XVII. FTfKKDOM OF PROPERTY. PERPETUITIES. XVIII. BUSINESS AFFECTKI) WTTIT A PUBLIC INTEREST. XIX. QUALIFIED PROPERTY. XX. COMPULSORY BENEFITS. 8G SECOND PART. THE PUBLIC WELFARE FIRST. THE PRIMARY SOCIAL INTERESTS: SAFETY, ORDER AND IMORALS. CHAPTER IV. PEACE AND SECURITY FROM CRIME. § 86. Police patrol and general vigilance.— The first and most essential requirement of life in c. civilised community is protection from crime and open force and violence. The crim- inal law deals with offenses after they have been committed, the police power aims to prevent them. The activity of the police for the prevention of crime is partly such as needs no special legal authority : so the patrolling of streets, the general supervision of known criminals, or suspected persons or re- sorts, by watching them, keeping track of movements, etc., in so far as all this can be done without infringing upon personal liberty.^ Among proprietary functions the lighting of streets furnishes protection against crime. ^ 1 See Rules and Regulations of sons of known bad character; 159: Chicago Police Department, Duties of to report policy dealers, gamblers, re- Patrolmen ; 149 : chief duty to pre- ceivers of stolen property and houses vent crime; to examine every part of bad repute, and also suspicions as of his post ; vigilantly watch every to such ; 16i! : to carefully watch dis- description of person passing his oiderly houses and observe by whom way; 151: to prevent commission of tliey are frequented; 163: to notice any assault or breach of peace; 152: .suspicious vehicles at night; 165: to to render by his ^dgilance commis- report lamps not lit; 169: to con- sion of crime extremely difficult; stantly patrol his post ; 171: to pay 153: to acquire knowledge of inhab- attention to public houses and drink- itants in his post; 154: to inspect ing places, and report violation of carefully every part of his post; oidinances; 172: if he observes in 156: to examine in night time doors the street anything likely to produce and low windows; 157: to fix in his danger or public incc.ivenience, or mind persons he frequently meets at anything peculiar or offensive, to re- night, and endeavor to ascertain their port and if possible to remove the names and residences; 158: to same, strictly watch the conduct of all per- - See statute of Winchester 1285, 87 gg PEACE AND SECURITY FROM CRIME. § 87 Leaving aside these forms of prevention, the police power either represses directly crime or violation of peace attempted to be committed or in the course of commission, or it deals by restrictive measures with conditions which tend to favor the commission of crime, or to render its detection difficult. COERCIVE MEASURES TO PREVENT IMMINENT OFFENSES. §§ 87-89. ;; 87. Arrest. — The power to deal with the present or imiiii- lu'iit foiiuuission of felony or breach of the peace is so mani- festly necessary as to be a matter of connnon bnv. Public au- tliority is for this purpose vested not merely in every peace officer, but in every private individual.'^ From the iiature of the case, an arrest under such rircumstances must be made without warrant, and such an arrest is legal. The constitutions do not forbid arrest without warrant. They merely prescribe special safeguards for the issue of warraifts in order to do away with the former practice of general warrants.-* TIkm-c is authority for saying that private i)ersons may arrest ti) jtrevcnt any misdemeanoi" committed in tlieii* i>resence,"'' but it is probably safer to confine the common law right to felonies and breaches of the peace. By statute the right has been ex- ti'Jided, so in l']ngland a person doing malicious injury to property may In- .in-cstcd by the owner oi- any person author- i.sed by iiim." and any one may arrest niiy |»erson round com- mitting an indictable oU'ense between !• p. m. and Vic, eh. 97, §61. ■< 11 • V.» rrhiiimil Pr..i-f«liiro, 7 14 ..,,i Ciinh. 'J81 ; Nortli " Norfli v. i'.n|.l<', l.t'.t III. SI. . r.opir, 139 III. 81. i'> North v. I*rn|.lr, I.'tli III. Ml. § 88 COERCIVE MEASURES. 39 § 88. Suppression of riot.— Special powers of summary re- pression are given by statute in case of unlawful assemblies and riots.^i The statute of Illinois makes killing in the suppres- sion of a riot justifiable, as follows :^ 2 "jf j^ ^j^^ efforts made as aforesaid to suppress such assembly and to arrest and secure the persons composing it, who refuse to disperse, though the number remaining is less than twelve, any such persons, or any persons present as spectators, or otherwise, are killed or wounded, said magistrates and officers, and persons acting with them by their order, shall be held guiltless and justified in law." The law in Massachusetts is practically the same. ^2 The common law rule is more cautiously expressed by ]\Ir. Bishop as follows: "If rioters and other like offenders stand their ground, and only by killing them can the disorder be sup- pressed, they who do it are justified."^-* The law in New York provides: "Every endeavor must be used, both by the magis- trates and civil officers, and by the officer commanding the troops, which can be made consistently with the preservation of life to induce or force the rioters to disperse, before an attack is made upon them by which their lives may be en- dangered."^^ § 89. Security of the peace.— Where a person threatens to commit a crime or breach of the peace, he may be required to give security of the peace. The law as stated by Black- stone^^ may be traced back to the creation of the office of justice of the peace and is substantially in force at the present time, being embodied in the criminal codes of many states.^" The proceeding generally falls within the jurisdiction of any judge or justice of the peace, and may be instituted by him ex officio, if the threat is made in his presence, otherwise upon the sworn application of the person threatened showing the danger of the crime (articles of the peace). A warrant is thereupon issued and the accused apprehended and examined ; 11 Steplieii Hist. Grim. Law, I, (Laws 1887, ch, 765, Revised Laws, 200-206; Blackstone, IV, 142-1-13. ch. 100, §39). 1- Criminal Code, 255. i-t New Criminal Law, II, 6')5, 4; 13 Rev. Laws, ch. 211, § 6. Mas- Pond v. People, 8 Mich. 150 (dic- saehusetts also authorises municipal tum). niitliorities to forbid the sale of i' Code Crim. Proc, § 114. liquor in cases of riot or great pub- i" IV, 251-255. lie excitement for a period not ex- "Mass. Rev. Laws, ch. 216; New ceeding three days at any; one time York Code Crim. Proc, §§ 84-99; Illinois Crim. Code, Div. V. 90 PEACE AND SECURITY FEOM CRIME. § 90 if there appears to be danger of his committing the crime, he is required to enter into a recognizance, with sufficient surety, to keep the peace either generally or towards the person threat- ened, for a time specified in the recognizance; and upon his violating the stipulation the undertaking may be enforced. While the proceeding for this purpose is had before a judge or justice of the peace, it is not in the nature of a criminal prose- cution, the machinery of the courts being here used for the purpose of police restraint : therefore the rule against double jeopardy does not ap]ily.^^ ;; 90. Concealed weapons.— Of the conditions tending to facilitate the connaission of crime, the carrying of weapons should first be mentioned. As it is not customary in civilised communities to carry weapons about the person, the habit of doing so may be regarded to some extent as an indication of lawlessness.'" The police power is here however confronted l)y a constitutional right. The Second Amendment of the Federal Constitution says: "A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed." Provisions of the same import are found in most state constitutions, the pur[)os(' of self-defence being in .some cases added to that of the common defence. Tliis constitutional guaranty has not prevented the very gcnci-al enactment of statutes forbidding the carrying of concealed weapons, and the possession or use of certain dea»ll\' weapons not generally used ("or legitimate |iiii-|»» Sco .North V. I'coplu, l.'Jit 111. >S1. |)rohibitioii of paruiles with arms, It has, howcvor, been hehl in Florifla although the arms are so fixed that that carrying roncculed \vra|)onH in they cannot discharge a missile. a "quiet and |ii-acralil<' manner" " Tlie men who carried tliese wcap- • loeu not tend toward a hreach of the ons could not a(;tuaily fire them, but pvacc m an to justify .in arrest it would be generally supjiosed that without warrant; and tliis although they could. With the exception of the weapon had .j\iKt been used for being actually shot ilown, all the evils an awmiiill. It was therefore heM which the statute intended to remedy that the act of tin- pcrsun arrested still exist in the parade in which the in killing the ofTicer did not <'onsti- defendiml Inuk p.ir)." Common- liito murder (Koberson v, Htatc, 42 wi'alth v. Murphy, Kid .Mass. 171. Kla. 'JSn. L'H Son. 424, r,'2 \.. R, A. -"• Illinois Trim. Code. §§ .'ita, 54d; Tfjl). In .MaNWichuwtts, on the other N Y. I'cn.ii < ode, § IJii. hand, the power to (irevent breaches § 91 MILITARY ORGANISATIONS. 9I the carrying of arms in a threatening manner.-' The constitu- tionality of this legishition has been unheld from an early date in the states in which it has been (questioned.-- In Kentucky it was declared unconstitutional,--' but expressly authorised by subsequent constitutional amendment. 2-* We find here an application of the general principle that constitutional rights must if possible be so interpreted as not to conflict with the requirements of peace, order and security, and that regulations manifestly demanded by these requirements are valid, pro- vided they do not nullify the constitutional right or materially embarrass its exercise. § 91. Military organisations.— In a number of states the law forbids any body of men, other than the regularly organised militia and the United States troops, to associate themselves together as a military company or organisation, or to drill or parade with arms, without the license of the governor. ^^ This provision has been upheld in Illinois^'' and in ]\Iassachusetts,^'^ while the Supreme Court of the United States has held that the federal constitution applies in this matter only to federal legislation and therefore does not control the action of the states.-^ The existence of uncontrolled military organisations, while perhaps not an encouragement to the commission of crime, may yet constitute a serious menace to the public peace and an obstacle to the orderly anl effectual enforcement of the law. As such it would afford a very legitimate ground for 21 state V. Hogan, 63 Ohio St. -s Illinois Military aud Naval Code 202, 58 N. E. 572. 1899, XI, § 2. " It shall not be law- 22 State V. Mitchell, 3 Blaekf. Ind. ful for any body of men whatever 229; State V. Reid, 1 Ala. 612, 1840; other than the regular organised Nnnes v. State, 1 Ga. 243, 1846; militia * * * to associate them- Slate V. Chandler, 5 La. Ann. 489, selves together as a military company 1860; Haile v. State, 38 Ark. 564, or organisation or to drill or parade 1882. ^Aith arms in this state except that 23 Bliss V. Commonwealth, 2 Lit- permission may be granted by the tell (Ky.) 90. governor, etc." Mass. Rev. Laws, 24 Const. 1891, § 1, No. 7, enu- ch. 16, § 147; N. Y. Military Code, merating among the inalienable § 177. rights : the right to bear arms in de- 2(i Dunne v. People, 94 111. 120, fense of themselves and of the state, 1879. subject to the power of the general 27 Commonwealth v. Murpliy, Kii) assembly to enact laws to prevent Mass. 171, 32 L. R. A. 606. persons from carrying concealed 2s Presser v. Illinois, 116 T'. S. weapons. -52, 1886. 92 PEACE AND SECUEITY FROM CRIME. § 91 restrictive police reg:iilation, in the absence of any positive con- stitutional right, and since in Illinois the constitution is silent as to the right to bear arms, the decision rendered in that state can be questioned only on the ground that contrary to the doc- trine prevailing in the same jurisdiction, it sanctions the delega- tion of a discretion unregulated by laAv to an executive officer, and thus violates the principle of equality.-^ The Sui)reme Court of Illinois has however also expressed the opinion that the right to bear arms is not even remotely involved in the question of the validity of police regulations regarding military com- panies,-"' and the United States Supreme Court has expressed itself to the same eifect.^^ And the same view was necessary to support the decision in Massachusetts, where the right to bear arms is recognised by the constitution. The court says that the right to keep and bear arms for the common defence does not include the right to associate together as a military organisation or to drill and parade in cities and towns. This may be conceded to be true as far as parading on the streets is concerned ; l)ut the principle is stated in a broader form, as applying to military organisation in general. The constitu- tional right is thus recognised merely as ;in individual right. Tlic prevailing doctrine seems to be that the constitutional recognition (if tin' militia implies a limitation upon the right "f military association in other and more .irregular forms. It is clear llial ii" the state pays in whole oi- in part the expense of arming and drilling the militia, and of erecting armories, it innsl have power In control its size, and this again implies some pow<'r ol" select ion. There cannol in other words be an indiscriminate right to join the militia. As a matter of fact the statiitory maxinnim lunnber (»r the state militias will gen- erallv lir i'oiind to accommodate only a small fraction oi' the male adult popniation. I'.nl this necessary power of selection may still hi- controlled 1)\- law and should he so exercised as »<• 8 «43 infni. < otinn.iiKl by tlic United Stntos or •■*""ThiH Hcr-iion [ f I'reHser v. Illinois, 1 Hi IJ. S. ..il.in.iu.. iiniler n<» diheiplinc or -52, g 92 BODIES OF ARMED MEN. 93 to make arbitrary discrimination impossible'*- Is the "security of the free state" consistent with the al)solute power of the executive to control the constitution of the militia .' It would seem to be far more consonant with the principle of equality to allow the right of military association to all, subject to such regulations as to prevent danger to public peace and order, and to secure the uniformity and efficiency required for i)ublic service. The claim that a body of men cannot be safely en- trusted with the privilege of military organisation-*'^ should be established in accordance with definite principles of law. § 92. Bodies of armed men (Pinkerton men).'*^— A some- what peculiar form of military organisation is presented by the existence of bodies of armed men used for the protection of property in times of disorder and especially during labor troubles. Legislation has been enacted in a number of states directed against the practice of letting out and employing such armed forces. Thus Wisconsin forbids the employment of bodies of armed men to act as militiamen, policemen or peace officers who are not duly authorised as such under the laws of the state. 2^^ Illinois forbids private detectives to assume to act as officers of the law.^*^ Minnesota forbids the keeping of pri- vate detective offices for the purpose of letting out armed men for hire.^^ Massachusetts,^^ Texas,-^*^ and West Virginia^" for- bid the employment of non-residents for that purpose, and New York,-*^ Pennsylvania^- and Illinois^-* provide that no non- residents shall be employed for police duty by the sheriff. The constitution of Idaho^^ provides "No armed police force, or detective agency, or armed body of men, shall ever be brought into this state for the suppression of domestic violence except upon application of the legislature, or the executive when the legislature cannot be convened." There is no doubt that the state may exclude non-residents from being vested with official powers under its laws. The 3'- The Supreme Court of Massa- •'" Criminal Code, § 256q. chusetts states expressly that dis- ■*" General St. 1894, § 6960. crimination in this matter is not -'s Rev. Laws, ch. 108, § 11. open to constitutional objections. "" Laws 1893, ch. 104. 33 In Illinois the license was re- +" Laws 1893, ch. 4'J. fused as anarchist association. •*! Laws 1892, ch. 272. 34 Industrial Commission Report, -i^ Purdon 's Digest, 189.5, p. 169. V, 142-147. *■■•' Act Juno 19, 1893. 35 Laws 1893, ch. 163. 4* Art. 14, § 6. 94 PEACE AND SECUKITY FEOM CRIME. § 93 tliscriiiiination against iiou-resideuts iu the employment of armed bodies of men not vested with any official authority, might conceivably raise a federal question Avhich, however, has not as yet been passed upon by the courts.-*^' Apart from such discrimination it seems clear tliat the state may prohibit the use of organised bodies for the protection of property; for the natural right of self-defence must not be extended to sanction private warfare, or to supersede the proper and ex- clusive functions of the regularly constituted public authorities. A precedent for this legislation may be found in the English statutes of liveries directed against the maintenance of bodies of armed retainers by the lords and barons.-*'' i 93. Restraints upon business and upon particular deal- ings.— Certain cla.sses of business may be i:)laced under special control because they furnish facilities for the commission of crimes (tr for their concealment. Crimes may to some extent \u- preventi'cl l)y properly restricting the sale of weapons, poi- sons ov explosives; ami their detection nuiy be facilitated by a strict supervision of these trades. The law may. therefore, forbid till' sale of jioisons except upon responsible prescrip- tions; and it may require the keeping of registers showing every .sale of weajjons, with the name of the purchaser.-*" As stolen goods usually find their way into the hands of ]iawn- brokers or dejilci's in second-hand goods, these trades iiuiy l)e kept under conti-oj iiy llic i'i'(|iiii-cnient of a license, by deniiind- inp reports and autliorising inspection."^ The prevention oi- detection ol' crime may also justify re- straints upon transactions apai-t fi-om regular trades. Tlie great facility with wliicli llie llieTt of cotton in 1lie seed may be concealed led llic legislalui'e o|" N()i-tli Carolina lo make h H ini.sdemeanor, lirsl, to sell small (juantities of such cotton be- tween Hunset and sunrise; then to make any such sale without writing ami without docketing the receipt for the i)urchase price with till- justice of tin- peace. The statute was iiitheld l7 nC tlic Forest Code, (\ I., c, uf 'ii fnrest willlnnl H|)eci;il ;ic||||iiiis- li!ili\e |>crinil, tlie |iiir|iose li<'iiij; to ^^iiruiKl Ua|*iwise he prohibited and punished as an otTense. * • • 'I'lii- offense consists no| in pai-liculai- acts hut intlu'mO(h> of life, the habits and practices of the a(!cuse(l in respect to the r'haracter or traits whicli it is the object of the statute creating the olTeiise to suppress."'' The Ix-ttci- doctrine is that a con- •T Htoutontiiir^jli v. Knizier, If) App. Ilic kniiwii ch.ii.irtrr of tlic porpon. D, C. 229, -JM L. |{. A. 2L'(). In I'\.r |.rruli.ir inlci pirlatidii of ;i Kn^'Iiind iimlcr flic Prevention nf wtiitntc on three grounds: tliat it was for the woman's own benefit, that it was a sort ol' (|nar;iii1 iiie to protect the com- nnniity I'i'oiii containiiuit ion, and that the pet it ioner's dissolute habits were h-adini; her to indigene(\ so that she might be treated as an iii(liL;cnt although sIk' had not yet i-eceived alms. All thi-i'c iii-gumeids ai-e pal])ably unsound: there exists no authorits' to deprive s;iiie adults of tlieii- lil)ei'ty simply as a means of improvement ; the (|uarantine of those atVected l)y con- tagious disease is justified an\' i<.Mi practice of our {)oIi(M' authorities thus sanctions ;i form of j)reventive an-csl which has no warrant in oui- hiw, but which is recognised in (iermany as within tlic inherent powers of the police.-' This mere precautionary arrest is lawful uiidei- oui- law <>iil.\ in oi-dci- lo jii'cvent an offense which is imminent m- in course of Ix'ing fomiiiitted.'- }; 101. Control over immigration. In the exerci.sc of its power of terriloi-ial sovereignl\ thi- government of the United States has eiiacterj l;iws excluding imnugrants helonging to tin- criminal ami otlier objectionable classes.-'' Such control over f73; liiit Mr-c |{rah ahi'oad the court held thai if this constituted ;i lihel. the sheritV. in conuiiitting it, h;i(l not ncted l»y virtue of his oflicc. and could thi-rcfore not he held liable upon his bond.-' It is certainly better to deny the powei- of photographing in J«8o New York, !«!)«, Californi!!. riui.r, IHI Ind. HiMt, r>7 N. E. 541. lf!97, VirKiniii, 1M08, Sec; hco Muhh. Autlmrity granted by statute as to R('v. TjnwH, rh. 'J'jri, S9 18-21. jJcrHoiiH hold on clmr^c of fnlony. sTHtiitc I'X rci. TirunH v. Clans- low.-i li.-iwH. HKI12, cii. :?Hr). < 104 CONTROL OF CONVICTED LRIMIXALS. Kj.j b such cases, except under authority of a statute restricting it to its proper purpose and providing:- safeguards against its abuse. Where a suspected criminal is arrested but must bf discharged for lack of evidence, therc^ seems to I)h no consti- tutional warrant for compulsory photographing or measure- ment, desirable as some such measure of identification may be for practical purposes. § 104. Conditional pardon. — It is recognised that the i)ar- doning power may be exercised by annexing conditions to the pardon.2^ Some times the conditional pardon is expressly provided for in the constitution-'* or by statute.-'" The condition must not be impossible, criminal or illegal; but there can be no valid objection to the requirement that the pardoned offender shall remain within a certain locality, report to the police, not engage in certain pursuits, etc. ; in other words, the power of conditional pardon may be used to establish a very effective supervision, to continue until the expiration of the original term of imprisonment. It is also held that the condition may be that the offender shall leave the country or the state ;3^ even, it seems where banishment as a punishment is forbidden [^^ on principle the legality of this condition may well be doubted ; for what right has a state to force an offender upon another community? § 105. Indeterminate sentence laws and parole.— Akin to the conditional pardon is the parole (under English laws ticket of leave) under which a convict is provisionally discharged from prison, and which is authorised in a rapidly increasing number of states, generally in connection with a system of sen- tences of imprisonment of indeterminate duration within a minimum and maximum term fixed by law. Under regulations to be established by the prison authorities, or by a state board of pardon, the convict may be allowed to depart from the pen- itentiary on condition of good behavior, and liable to be re- turned to prison without a new conviction until his term expires ^8 Ex parte Wells, 18 How. 307. 4 Brewst. 3:26, 1869; State v. Ad- ■-•9 State V. Barnes, 32 S. C. 14, dington, 2 Bail. L. 516, 23 Am. Dec. Constitution S. C. IV, § 11. 150, 1831 ; ex parte Marks, 64 Cal. "0 Fuller v. State, 122 Ala. 32, 45 29, 1883. L. K. A. 502. ■■*- Ex parte HaAvkins, 61 Ark. 321, 31 People V. Potter, 1 Park Cr. R. 30 L. R. A. 736. 47; Commonwealth v. Haggerty, 104 PEACE AND SECURITY FEOM CRIME. § 106 or until he is sooner tinally discharged. The legality of these laws has been contested partly upon the ground that they are encroachments upon the executive pardoning power, partly upon the ground that they vest judicial powers in the prison authorities, the punishment depending upon their discretion instead of upon the sentence of the court. Upon one or both of these grounds they have been held to be unconstitutional in several states.^^ In other states, however, these acts have been sustained, though in some cases by a divided court.'*^ The Illinois act seeks to avoid the constitutional difficulties l)y nuiking the discharge of the prisoner dependent upon an order of the court and the approval of the governor. The Supreme Court of ^lassachusetts sustains the act upon the theory that its effect is to inflict the maximum of punishment for the offense subject to reduction. •^''' The same view has been taken in Illinois.-"' Tliis view, however, encounters some diffi- culty where the law provides that after a breach of the parole the convict is to serve out the whole of the unexpired maximum term of imprisonment, not counting the time he was out on parole. If during this time the convict is still in legal custody — and that is his status umler the law of Illinois — the effect of this pi-()visi()ii is to deprive him of his lilx'tMy t'oi* a fixed max- imum liTiii plus the parole time. To i-cmovc this tlifliculty til"' piTSDii (111 parole must be licit! tt» he iVee subject to condi- tions !»>• Ilic l)i'c;ich of wliich he foi-t'cils his freedom and to which he voluntarily submits i)y accepting the parole. Such a status of liberty is certainly most anomalous: Imt it seems to he san<-tii)ned by the establisiied practice and constitutional reeognit inn of conditional pardons.''" 15 106. Question of delegation of judicial powers. — Where dischii?';^!' ;iiiil recommit iiieiil (lej)ciid upon the orth'r of the •■I'l I'coplc V. ('nmniiii^H, SS Miih. Ki? .M:iss. lit, If) X. I]. 1; (Jcorjjo v. •JU), 14 L. H. A. !!«.'■), ISIH ; Statr ex iVopic. 1(!7 III. ■t47, 47 .\. K. 741; rcl. FliHhop v. Stnto M(.anl ..f Cor- .\iillcr v. St:ilc, M'.» In. I. ()()7, 49 N. rr. K. A. l.".l. In .Mi<'lii(jaii a conHtifiif ional :iiiit'iiil- •'" Pcoplfi ex rcl. Hradlcy v. SuptT- iiirnf Mani'tiiiiiiiij4 Uic liyislatida waH iMlfiiilciit I IlinoiH State Hcfonnatory, a[' aii\' <>t' llie conditions subjects the offender to recommitment without judicial proceedings, if the liability to summary retaking is one of the conditions of his (lualitied release."*" This is constitutional since he remains technically a prisoner."*^ Supervision and recommitment ai-e not acts of tlie police power, but i)nit of the punishment inflicted for crime. ij 108. Suspension of sentence and probation. —In a number of states courts have exercised the power, without distinct warrant of law, of suspending sentence after conviction for an iiidelinile time, with the undei-staiiding thai, if the offtMider behavt's well, the sentence will nevei- be pioiiounci'd. The I)ractice seems also to have existed in England,'- and to have been well established ;is :i powci- (if i('sj)ite or reprieve in i-aj)- ital cases. ■*•' I'factically tliis ainoimls to an exercise ot" a con- ditional |)ardoning ]>ower. and iiia> he used fctr the |)urpose of conti'olling the conduet of an offcndei- while leaving him at large. The pi'a<'tiee was in some cases noticed by the courts but passed unchalleiiged." In Massacluisetts (where it had been recognised hy statute), in New 'I'oi'U {overruling the lower courts, whose decisions led tlie legislature to legalise tln' practice), and .\c\v Jersey, tlh' pnwci- to suspend sentence has been sustained :'•' In .Michit^an. I lliufiis .md I lie federal courts ' .■^.f HiiloH iirnl I'iir.ilc ,\^rr iJ •_• H;il,. |'. ( '., ,li. r,s. |,. Hl'. mRiilH, AiiK'ririiii Hiir Axsdi-i.-itiiiii ^'' liislinp Now ('rim. I'lor., I, K«'|H.rt, 1H9H, p. 477-484. § l'_'S)5). ^nRtiito ex rol. OTonnor v. •• Wcii\ii- v. I'l-ojilc. X\ .Midi. 129(). Wclfor. r>:t Nfinn. l.l.'i, lit I-. If. A. <•'• ('<)Mitiinii\\<:illli v. Dowfiiciiii, Itf) 7H3. MiiHH. l.'S.'t; l'cn|.lc V. <'(iur( of Sch- «> Kill lor V. Hlalr. IJJ Al«. :VJ, HidiiH, 1 II \. Y. L'88; State V. Addy, 4.' I,, n. A. 502; K.-imrdy'H Ciihc, 14 Vmnni 11 :t. \:ir, Mri«« t" ^; lU(j CONTROL OF CONVICTED CRIMINALS. IQJ its legality has been denied. ^"' Indiana seems to regard the power as inconsistent with the governor's eonstitntional pre- rogative of pardon,^' a vieAV Avhich Avill hardly find favor else- where. The tendency is to sanction the jjracticf by statute, (the first step to that effect having been taken in Massachusetts-'**), applying it to first offenders who are to be saved from the con- tamination of prison life.^" Similtir legislation exists in p]ng- land,^" France,-^^ Belgium,''^^ some other European states, and a number of English colonies. The system of France and Px-I- gium differs from that of England and America in that under the former the conditional liberty is forfeited only by the com- mission of another crime of which the offender is convicted, while under the English and American laws the enforcement of the sentence is at any time Avithin the power of the court, which may exercise it when satisfied of the misconduct of the offender. § 109. Security of good behavior. — While indefinite suspen- sion of sentence is of doubtful validity without statutory sanc- tion, it is a principle of the common law that the court may require as part of the sentence in cases of misdemeanor that the defendant give bonds to keep the peace and be of good behavior.^ 3 In New York this authority is confirmed by statute.=5-* § 110. Disabilities of ex-convicts. — Where the right to pur- sue a calling may be restricted in the public interest, persons having been convicted of a crime may be excluded l)y law from such pursuit. Thus liquor licenses may be refused to ex-convicts. In New York persons convicted of infamous ■4" People V. Browu, 54 Mkli 15; "'i Lui Bereiiger, Murcli 26, 1891. People V. Allen, 155 111. 61, 39 N. E. 52 May 31, 1888. 568 ; People ex rel. Boenert v. Bar- ••^- Bishop Cr. T^., I., See. 945. reft. 67 N. E. 23; United States v. r.4 2 R. St. 737, Sec. 1. In West Wilson, 46 Fed. Rep. 748. Virginia the ])raftice is recognised ■»■ Butler V. State, 97 Ind. 373. only in ease of gross common law ■is The creation of a probation offi- misdemeanor, ])unishment for \\ hidi cer for the county of Suffolk by act is not prescribed by statute. State of 1878. " V. (iillilan (W. Va.). 51 AV. Va. 278, *nSee New Jersey Probation Law 41 S. E. 131, 57 L. K. A. 426; so in in Report Am. Bar Ass'n, 1900, p. Tennessee, Estes v. State, 2 Humph. 405. 496. 50 Probation of First Offenders' act, 1887, 50 & 51 Vict. ch. 25. 108 PEACE AND SECUKITY FEOM CRIME. § HQ crimes are excluded from the practice of medicine. Where the restriction operates only prospectively, its legality is undoubted, Avhether regarded as a police regulation or as part of the crim- inal punishment ; its retroactive operation has been upheld as an exercise of the police power, when the commission of the crime showed unfitness of the calling. This point will be dis- cussed in another connection."'^ Police supervision as an addition to the regular punishment for crime, seems to be unknown in this country, but is recog- nised in European systems. In Germany it may be made part of the sentence in a imniber of offenses specified by statute.^*^ Ill France where it was introduced in 1810, it was abolished l>\- an act of 1885, which substituted a prohibition against living in designated cities. In England police sujiervision was intro- duced by the Habitual Otfen(l(M-s' Act 1869, and is now regu- lated by the Prevention of Crimes Act 1871. The court upon the second conviction of an olt'ender is authorised to add to jiiiy other punishment police supervision for a period of seven years: the person nndcr supervision nnist notify the police of every change of residence and n-poi't himself once a month. •'••'• Hawker \. Xi'w ^'oik, 17ii V . S. ineiit, reeeiviiijj stolon jjoods, rohhtTv, 1S9; nt'v § .'345, iiifiii. niVciisos ajjainst gaino laws, arson, in- *'" Riot, countcrfcitinfi, indcniiii;^ ji'^T to property with dauger to life, immorality, larceny and embezzle- CHAPTER V. SAFETY AND HEALTH. § 111. Growth of legislation. — Tlie protection of persons and property from the elements, from mechanical forces pressed into human service, and from disease, calls in many respects for the combined action of society, and the urgent need of this protection makes it impossible to wait for, or to rely entirely upon, voluntary combination. A large amount of state activity is thus called into play. The government provides for the preservation of life, health and property by preventive and other arrangements, which it manages in a proprietary capacity and places at the service of the public ; but in addition it regu- lates, compels and restrains private action for the like purpose. A vast amount of police legislation is justified on this ground, and the state is readily conceded more incisive powers than despotic governments would have dared to claim in former times.^ The earlier history of legislation shows comparatively little care for the prevention of accident or disease. The XII Tables contain what appears to be a sanitary regulation, viz : the pro- hibition of burials in the city. The Roman praetor entertained popular actions for damages and penalties in case of injury done by matter carelessly thrown or poured from houses upon public highways, or dangerously placed thereon ;2 the protec- tion was thus confined strictly to public places. Apparently the earliest English sanitary legislation is an act regarding nuisances in towns of the 12th Richard II, chapter 13; com- missions of sewers were first created by 8" Henry VI, chapter 2; slaughtering of animals in walled towns was prohibited by 4 Henry VII, chapter 3. Building regulations were establishe(l for London after the great fire of l(i()B. The need of public measures for health and safety would naturally first be felt in cities, and it was through autonomous nmnicipal legislation 1 Thus sanitary measures against tolerated for centuries the grossest ' tlie plague have been resented in In- forms of governmental o]ipression dia as interfering with the sanctity and spoliation, of private life by a population which - Dig. 9, 3. 109 IIQ SAFETY AND HEALTH. § 112 that (»u the continent of Europe dnring the latter part of the ^liddle Ages this branch of internal police was first called into existence/' Since the last centnry health and safety have be- come prominent objects of the so-called social legislation— that is to say. legislation for the benefit of wage earners, covering chiefly the following subjects: factories, mines, ships, and tenements. ^ 112. Principal subjects of legislation.— The legislation in the interest of safety and health is so extensive that it is not possible to do more than indicate its principal subjects and the measures adopted for dealing Avith them. This will at the same time serve to define the scope of these two interests for the purposes of the police power. SAFETY LEGISLATION. §§ 113-lL'l. )i 113. In the legislation which seeks to afford protection from injury or destruction due to mechanical causes, the fol- lowing principal agencies or dangers are guarded against: water, lire, explosion, the power of moving bodies, structural defects, and the action of animals. According to subjects regulated - ii|>aiMan proprietor ; in other states such an obli- gation does not exisl^ and probably eaiinol, be const it ut ionally imposed, nnder the |)rineiple ol' e(pialil \- ;'' but w liei'e a iiiniiher of pieces of lan'l i'orniinv' a lari^e tract are similarly e\|iose(l, an owner may be conipelled to join with others in cohiukiii measures rnvrMi('ntH. -?.r,; f:;i,-,.M v i-„iie(l HtulcH, lOH IJ. § 115 SAFETY LEGISLATION. HI land in such a manner as to weaken the natural protection afforded by it against the inroads of the water.** Under the law of necessity, without statutory authority, all able-l)odie(l persons may be required to assist in Avardiiig' off a present and immediate danger of inundation." § 115. Mines.i'^— Legislation for the safety of miners exists in all states in which mining operations are carried on. For a recent revision and codification of the laws regarding bitumin- ous coal mines see Illinois Act of April, 1899 ; regarding anthra- cite coal mines, the act of Pennsylvania in Brightly and Pur- don's Digest, 1895, p. 1342. The provisions relate to maps and surveys, the construction of shafts, the observance of proper partitions, the operation of hoisting- engines and other machin- ery, the storage and use of explosives, ventilation and lighting, and signal codes. The state exercises supervision over mines through inspectors, and requires certificates of competency granted upon examination of those employed as managers or foremen, hoisting' engineers, and mine examiners, at the same time frequently compelling such employment.^ ^ For question arising as to statutory liability in case of such compulsory em- ployment, see § 624, infra. § 116. Railroads.^ 2_The police power is exercised by statu- tory legislation and by municipal ordinances in the interest of the public at large using highways at railroad crossings, of pas- sengers, of railroad employees, and of the owners of property liable to be injured or destroyed by the operation of railroad trains. Regulations, restraints, and requirements relate to the following matters : the rate of speed of trains in cities ; warning sign boards, gates, and flagmen at crossings ; grade elevation or depression ;^''^ switches, brakes, couplers, signals; the use of stoves in cars; fences and cattle guards; employment of sufficient numbers of men and of men properly qualified, and testing such qualification by examination;^^ provisions against overwork of train operators ; supervision, sometimes at the expense of the railroad company ; strict responsibility for in- 8 Commw. V. Tewksbury, 1 1 Mete. i* South Covington &c. Street Car 55, § 409, infra. Co. v. Berry, 93 Ky. 43, 15 L. R. A. sPenriee v. Wallis, 37 Miss. 172. 6U4; State v. Inhabitants of Tron- 10 See § 638. ton, 53 N. .L L. 132. 11 L. R. A. 11 Illinois Act, §§7, 8, 16, 17, 18. 410; Smith v. Alabama, 124 U. S. 1-' See §§ 622, 623, 628-634, 637. 465. 13 § 631, infra. 11-2 SAFETY AND HEALTH. § 117 juries to persons or property. Constitutional questions arising with retrard to some of these re(iuirements will be discussed in their proper places; it is sufficient here to say that the amplest exercise of the police power is sustained by the courts in this field of lecrislation. § 117. Ships and navigation.^'" — The great bulk of legislation in this matter is federal, enacted under the constitutional power of the United States over commerce. But the regulation of port pilotage is left to the states/*^ and state laws contain other provisions regarding the safety of navigation within their limit.^' Local municipal authority also frequently ex- tends to the enactment of harbor regulations.^*^ As regards federal legislation, the establishment and maintenance of light- houses and life saving stations belongs to the proprietary })()w- ers of the government; th(> folloAving provisions fall within the province of the i)olice power: laws for the j^revention of collisions at sea, in harbors, rivers, and inland waters, and on the great lakes, by prescribing lights, fog signals, and sailing and steering rules ;^'^ relating to the transportation of nitro- glycerine,^" gunpowder,-' and other infiammable or dangerous materials ;22 steam boilers and their inspection ;23 licensing of captains, chief mates, engineers, and steamer pilots;-"* safe- guards for the prevention and extinguishment of fire, and for the saving of lives in (»mergencies.-"' Many of these safeguards are also n'arks. sewer syslcms imd drainage, cleaning of streets, also tin- riiniishing ol" inrormation and advice tend- ing to reduce disease and i)romott' health. The police power operates on persons; land, struelures and establishments; ob- no.xious things; and on business, ti-ay Clmrlcs V. ('Ii:i|piii, New York Lawn. 1H7K, eh. 4H ; 8(il.S. Mimi(i|>;il Saiiilati.in of tlic United ivtn. SlatcH. i'ruvi.lfiic.', I'.IOj, »«««•*• al.y hereditai'v disease; of this character is a hiw of Connecticut- forbidding epileptics, imbeciles, or feeble-minded persons to marry, where the woman is under forty-five years of age. This age limitation clearly indicates that Ihr jMirpo.se of the act is to prevent the transmission of the defect to offspring. Legishiti(»ii loi-bidding the marriage of persons alHicted with diHcusc, which is liable to hereditai-y transmission, should be conceded, as a matter of priiiciplc. to Ix' within the police [)ow<'r of the state; for the health of imhoi'ii ucnei-ations is a. matter of profound coneei-ii to the community which may justly assume the guardianship of their interests. As a matter of practical legislation, however, restrictions upon the right *» Kc'v. Stat. TownHhip OrKiinisn- r>'» Hoc § fiU?. tion, XIV, J 1, 1 Laws IMH), p. 247. «» HnrriKon v. Mayor of Riiltimori>, '^ Act of July ttli, 180.'), amciMlod 1 (Jill. (.M.I.) -ZiH, IHJ.'l; State v. .Inly Ofli. IHirj ; also l.a\vn of .Miiiiie- Clty of Nnw OrloanH, 27 La. Ann. Hota, 1901, -ch. 234, and Laws of ri2l; Tfavcrty v. |{aH», 60 Me. 71, KanHaH, liM)3, cb. 220, nnil nt'o gg Mf!. 447. S 125 SANITARY LEGISLATION. 117 to marry resting upon scientific theories which arc not abso- lutely clear in their operation, and upon facts which an- iml easily ascertainalble, must meet with ahnost insuperable dif'li- culties of enforcement. Provisions merely penalising iiiai-- riages contracted in contravention to the law would i-ciiiairi dead letters, while to vest the licensing official with power to refuse marriage licenses to api)li(';uits whiiin lie knows to Ix' afflicted with inheritable disease,-' or to make the. i-ight to marry dependent upon a physician's certificate, would make the enjoyment of an essential right subject to the exercise of a discretion which the courts might well deem unreasonabU', because uncontrollable as to its responsible and impartial exe- cution. The prohibition of marriages between uncle and niece, or aunt and nephew, or between first cousins, is different in nature, since it creates merely a relative and not an absolute impediment. The validity of the prohibition is not questioned in the states in which it exists, although it rests upon a theory which is not supported by any respectable evidence.^ § 125. Burials and cemeteries.'''— The state may exercise the fullest control over the disposition of dead bodies with a view to protecting the public health. Under the laws of many states permits for burial and for transportation of corpses may be required.*' The practice of embalming has been regulated in recent years in a number of states by a system of examination and licensing. The control of cemeteries is only a further ap- plication of the control over the disposition of dead bodies. This control is often delegated to local authorities, with power to prohibit, remove and vacate.^ and in some states statutes directly prohibit the establishment of new burial grounds in built-up portions of cities, or on lands draining into a source of water supply."* Dead animals do not at once cease to be property, if they were property while alive, but if not imme- 3 Act of Minnesota, § 2. mits serve also the purpose of fiir- 4 Huth, The Marriage of Near iiisliinjj information as to deaths. Kin, London, 1887. ■ Illinois City Act, Art. V. § 1. 5 See § 565. No. 79; Act of May 29, 1879, Sec. 1. c See Mass. Rev. Laws, ch. 78. § « Pennsylvania Acts of June 24, 38, also rhapin, p. .oS. Such per- 1895, April 20, 1899; Tennessee March 28, 1S9U. llg SAFETY AND HEALTH. § 126 diately eared for and disposed of by the owner, they may be treated as nuisanees.'' § 126. Dead bodies.— The legal status of dead human bodies is quitt* anomalous. They have ceased to be persons without becoming a detinite species of ])roi)erty. Relatives have a ([ualitied right of disposal for purposes of interment, which cannot be regarded as property. A medical institution may acquire a body for dissection: thereby it loses its peculiar and distinctive character and becomes property like any other in- animate object. But this transformation into property requires legal authority, and is generally regulated by statute.^*^ Aside from this use, the nonnal destination of the body after death is its decent disposal, and this seems to be altogether within the control of the law, saving legitimate religious usages not contrary to health or safety or the accepted standards of morals. The police power may control the manner of disposi- ti(»ii of dead bodies for the purpose of preventing the conceal- iiit-nt of ci-imes, or to guard against the comnumication of disea.se, or to prevent the desecration of remains, or to prevent disorder in funeral processions oi- exercises. In this country reguhitions exist for the first two ])u?'poses; so the time iluring wliieb bodies may remain unl)uried is limited in a number of stati-s. jiiid burials at night are foi'biddi'u in Boston.^' Probably the courts would control l(>gislativ(> discretion were it exercised in ;in unreasonable manner. Thus a legislative prohibition of ereiiuition on thr izi-ound that it is contrary to good niofMls, would not l»c lil<•«< fi .'ijij, u./;,j. II cii.'iiiiii, p. Kio. DiHintcniM'iil of >" H«> i>. ({. IlliiKiiH l{i'V. Stat., 'I'illc ImhIjcs iiunlc ilc|)iMi(lciit on iiciiiiit : .Me«li<'inc, No. 1-4; Mukh. Kov. Liiwh, R<' Woii>j Vimjr C^uy, 2 Fc-il. Hep. ()L'4. ch. 77; N(rw York I'nblir llr.ilHi >a ('hiipin. p. | ..,-1 of M.ircli •_', 189.'), in(j ifnfiortiition of ciitllr-; act M.-iy II Siippl. 10;$, for inHpection of caf- '2V, IM.Sl, I Hiippl. 4:iri, cHtaldisliin^' tic, lio^;s, carcnsHeH and products Biircnii of Animal IndiiMtry in flie thereof wliicli jire llic sulijeits of I'epiirlment of Ajjrieullure; \<'l infrTslate and foroijjn (•oimtiiT((!. AiiK. :in. IMJM), I Snppl. 7!M, for in ■;■■• Austin v. State, lot 'I'cim. .1«.1, ripfH'tinti of iinimalH tl.e meat of .00 L. K. A. 47b. whirh in intcnflH for export, and § 131 SANITARY LEGISLATION. 121 the sale of liquor, other than purely sanitary considerations come into play. In Massachusetts the prohibition of the use of injurious ingredients is extended to the manufacture of toys.2<^ The trade in second hand articles, especially second hand clothing, may also be subjected to sanitary restrictions, and is not uncommonly left to municipal regulation.^'^ § 131. Employment.2^— The first impulse to mining and fac- tory regulation was given by the wretched sanitary conditions under which mining and manufacturing operations were car- ried on, and a large part of this legislation is now of a sanitary character. As far as requirements for the arrangements in mines and factories are concerned, this is clear, but in the regu- lation of conditions of employment, especially as to time of labor, there may be considerable doubt whether the object of legislation is sanitary or social and economic. In view of the very ample legislative power over children, the restrictions upon their Avork need not be carefully scrutinised as to their character. The restrictions upon the employment of women in underground or night work are generally accepted as sanitary regulations, or regulations in the interest of morals and de- cency! As to male adults, restrictions upon hours of labor are infrequent; an 11 hours' maximum day for operatives in cot- ton and woolen manufactories in Georgia and South Carolina has not been questioned judicially ; an eight-hour day for miners has been upheld in Utah,^^ and for Utah also by the Supreme Court of the United States,^^ but declared invalid in Colorado. •■*' § 132. Qualifications for the exercise of callings affecting health.^^-— The right to pursue the following callings is regu- lated under the plea of protection of health : medicine and sur- gery, midwifery, pharmacy, dentistry, veterinary medicine; -! Re Morgan, 26 Col. 415. 47 L. •-- State V. Taft, 118 N. C. 1190, 32 R. A. 52. Tho Ipfr'slatiou thus de- L. R. A. 122; Rosenbaum v. New- clared unconstitutional has since bern, 118 N. C. 83, 32 L. R. A. 123; been expressly authorised by consti- Chapin, p. 209. tutional amendment adopted Nov.. 28 See §§310-317, infra. 1902. 29 State V. Holdeu, 14 Utah 71, -'^ See also §§152-154, 544, 545, 96, 37 L. R. A. 103, 108. 646, 650. 30 Holdeu V. Hardy, 169 U. S, 366, 1898. 1-2-2 SAFETY AND HEALTH. § 133 under recent legislation also the vocations of plumbers, under- takers and embalmers, and in a few states also of barbers. >; 133. Practice of medicine. — Thf i-iuht to practice as physician or surgeon was restricted to members of the corpora- tion of that profession by statutes of Henry VIII, and in New York admission to the profession was regulated by colonial li*gislatii)n as early as 1684. At present there are no states in which the right to practice is not regulated by statute. A license to practice medicine is granted upon evidence of ipialihcation according to requirements Avhich vary in different states, the following being the usual systems: admission upon presentation of a diploma from a reputable medical school or college; admission upon examination by official boards of ex- aminers; and a combination of the diploma and examination system either so that either one will be suificient, or so that both are retpiired, or s(» that an applicant for examination must show a specitied nuinbtn- of years' study. •^•^ Generally the statutes require proof of qualification only of those who shall in lln- future desire to begin the i)ractice of mctlieinc ; tin- \:\\v may. however, apply to existing practi- tioners tests of litness to continue in the practice of their l)rofession,-" and it has been held that where a license fee is imposed, existing practitioners cannot be constitutionally ex- empted from it.''"' On the other hand, the law may accept the i'aet that tin- applie;mt has i)raetieed ("or a numlier of years as sufTieieiit evidence of qualilieatiou, and in lieu of either diphuna (tr examination.-'" Exceptions .ire tVe(|uent l.\ made in I'aviir of nicilic;il jiract it ioiiers i-esiding in other states and (•alh'd in I'or i-onsiiltat ion it tfcjilineiit in speei;il eases. -'^ WliiTf ji license is i-c(|nin'il. the practice ol' medicine without it is i'orbiddi-n ;in(l |Minishenneclion with tlie a>i' the IcKiHlji- •'••'• Sinio v. IVimoycr, (jr) N. II. 1 i;{, tion of tho flifTiTftU HtHtPfi \h given 5 L. R. A. TO'.i. ifi III*' IJcvicw (if I,«'>fiKljilii)ii, l!tO|, •>'• \VilIi:iiiis \. I'c(i|)lc, li'l 111. ,S4 ; ptihliHlicil \>y flu- .New Yuik Si.ilc Stale v. VjiiKJerMlniK, 41! Minn. I ij!). liibrnry, pp. 1(»1-107. =7 si:ifi> v. Vnn l)i)r:in. Kill N. (.'. -••Dent V. WeHt Virginia, TJlt U. S(54 ; I'artts v. Sl:ile (In.D.C) \. ]•]. H lU. HOli. § 133 PRACTICE OF MEDICINE. 123 for sale,^^ treatment by massage, nursing without the use of medicine or operative surgery, and mental or spiritual treat- ment. In some states the law has been held to apply to Chris- tian Science and to osteopathy,^'' and the services of a clairvoy- ant physician have been held to be medical services •*" in other states methods of healing not using medicine or surgery arr regarded as not Avithin the spirit of the law." The law of IlIinois^2 defines practice of medicine as treating, or proposing to treat, operating on or prescribing for any physical ailment or any physical injury to or deformity of another, but excludes from the operation of the act the administration of domestic or family remedies in cases of emergency^ ^ and treatment by mental or spiritual means, without the use of any drug or material remedy. The phrasing of a particular statute may be conclusive as to its application to certain methods of treatment, and the decision may turn in part upon the interpretation given to such terms as "appliance" or "agency;"^"* the provisions of the law regarding study and examination may also be relied upon to show that they were intended to apply only to par- ticular schools of medicine."*^ Massachusetts provides that the act for the registration of physicians and surgeons shall not apply to osteopathists, clairvoyants or persons practicing hyj)- notism, magnetic healing, mind cure, massage, Christian Science or cosmopathic methods of healing, if they do not hold them- selves out as practitioners of medicine, or practice, or attempt to practice medicine in any of its branches.-**^ In Germany it is only the assumption of the title or designation "doctor,"' 38 People ex rel. St. Bd. Health v. E. A. 383; State v. Loeflfring, 61 Lehr, 196 111. 361, 63 N. E. 725. Oh. St. 39, 46 L. R. A. 168. 39 state V. Buswell, 40 Xebr. 158, -i^ Illinois Act, Apr. 24, 1899, § 7. 24 L. R. A. 68; Little v. State, 60 43 The law formerly e.\clutled both Neb. 749 84 N. W; 248, 51 L. R. A. administration of domestic remedies 717; People v. Gordon, 194 111. 560, and emergency services; the change 62 N. E. 858; Bragg v. State, 134 making only an exception in favor Ala. 165, 58 L. E. A. 925, 32 So. of the conjoint application of the 767. two is said to have been due to iu- 40 Bibber v. Simpson, 59 Me. 181. advertence in drafting the act. 41 Smith V. Lane, 24 Hun. 632; 44 Hay den v. State (Miss.). 33 State v. Mylod, 20 Eh. T. 632, 41 L. So. 653. E. A. 428; Nelson v. State Bd. of 45 state v. :\racKnight (X. C.), 42 Health, 22 Ky. Law Eep. 438, 50 L. S. E. 580. 4« Rev. Laws, ch. 76, Sec. 9. 124 SATETY AND HEALTH. § 134 "physician," etc.. which is forbidden without proper license.^" All the American states go further than this, covering at least the traditional methods of professional treatment irrespective of the use of title or designation indicating professional stand- ing. It is probable that private treatment, not for money, and not as a matter of profession, cannot be entirely prohibited, but the neglect of parents or others to call in medical aid for those who are in their custody may be made an offense, and has been made an offense by statute.-*^ LIMITATIONS OF THE FEDEKAL CONSTITUTION UPON THE POLICE POWER FOR THE PROTECTION OF SAFETY AND HEALTH. §§ 134-139. ;j 134. Fourteenth amendment and commerce clause.'— The t'nited States has power to control state legislation r(\garding safety ;iinl lu'.-illh under the 14th Amendment, and under its power over commerce. Under the Fourteenth Amendment the United States is com- petent to protect individual liberty and property against arlu- trary or unequal state legislation enacted under color of pro- tection of safety and health, but having in reality no such justification, even wliei-e interstate or foreign commerce is not involved. Thus the United States Supreme Court has an- nulled ;in ordinance regarding laundry establishments because it appeared that it ^\•as in i-c.ilily ;i measure discriminating against one race;- but so far no case has arisen in which the iud^rineiit of the state that a i-estraint Avas rcfpiired in the in- terest of health or safelx. operative exclusively ui)()n internal interests, .-irid respect in;: the jn-inciple of ecpiality, has been overrulefl by till' I'nited Sl.iles Supreme Court. The extreme limit of toJeraner nnisl Kr ImiiikI in the sjinetion given to the absolute prohibition of the iloniestie ni;i nui'aet ui'e and s;ile oi" ojroniHru'arine.'' TIm' lu-ohiliit ion i>\' the uKiiuifacture and sale of li«|uor.' and of ci^^jii-et tes'' has likewise been held to he legiti- mate under the jxiliee pdwer. It ni;iy. llierej'ore, be said tiiat «T Mrvor VcrwnhunKHn'i-ht, § 7it. :' INiwrll v. PpniiHylvaiii:!, 1:^7 U. S. •- IVopli. V. l'i.TMon(.\.V.)OM N. K. <578. l.'i:«; Ui-u. V. Df.wncH, l.'M'ox (•'.111. * Mii)r|i' I'sittfTHon V. Kintti.ky, 97 U. S. ^ Uiiitcct States v DcWitl. H Wall. 501, 1M7JI, v'tWufi with a|i[»n)val an Jl, 1870. Hiinlri({otiN (IpriHioii rcjjaniiiij^ tiic '"'Sec. 'A (if Act of Feb. l.", 1 S!t.'{, ronllict hotwci'ii a statr- law n-j^iilat- II Siippl. S4. iriK tlw practice of mcilicim- and tlic "i Morjrjm 's &c. S. S. Co. v. Loiiisi- claiin to mil :i rncijicinc for wliicli :i ana St. Boar't, lunl ('njiipa^^iiie I'ramaisc v. linn V. f)vcr>4ccrH ..f Djiylon. | Oli. State Hoard of I lea It li. 1S(5 V. S. '2f*r,. :is(i. '•' .Mixture of naplillia with illn • ' KiniiniHli \ . I'.ail, I L'!» U. S. i:i7 ; miDatiug oil». 'aHmuHHcn v. Idaho, 181 U. S. 198; § 137 FEDERAL LIMITATIONS. 127 same ship, that may be the subject of commercial regulation, may also be the vehicle of disease. And the health laws that require them to be stopped and ventilated are no more intench^l as regulations on commerce than the laws which permit their importation are intended to inoculate the comnnmity with disease. Their different purposes mark the distinction between the powers brought into action; and, while frankly exercised, they can produce no serious collision. "^^ § 137. Exercise of state police power not conclusive.— Yet it is the purpose of the federal power over commerce to pre- serve its freedom, and an unrestricted power of the states for the alleged protection of health might easily be abused to impede commerce and protect domestic industries. Therefore the federal courts do not accept as conclusive the judgment of the state legislature that a measure restraining commerce is called for by the interest of public health, but inquire in every case whether there is a legitimate exercise of the police powder. Thus wiiere a state forbids the manufacture and sale of an article as injurious to health, which article is generally recognised as a legitimate subject of commerce, the United States wall protect its importation and sale, while in the orig- inal package. This principle was applied to the legislation prohibiting the sale of oleomargarine, which had previously been upheld as a purely domestic measure.^ ^ So the prohibi- tion of the sale of cigarettes, recognised as valid where com- merce is not affected, was held inapplicable to imported cigar- ettes in the original package, although the court refused to recognise small packages for retail sale as original packages for the purpose of withdrawing them from the power of the state. 2" § 138. Discriminative legislation under color of sanitary power.— The federal courts moreover will not allow a measure to stand which upon the plea of health discriminates against foreign products, the discrimination being in reality not Smith V. St. Louis & S. W. E. Co., i» Schollenberger v. Pennsylvania, 181 U. S. 248; Missouri, K. & T. 171 U. S. 1; Powell v. Pennsylvania, K. Co. V. Haber, 169 U. S. 613; Eei.1 127 U. S. 67S. V. Colorado, 187 U. S. 1.37. -^'i Austin v. Tennessee, 179 U. S. 18 Johnson J. in Gibbous v. Ogileu, 343. 9 Wh. at p. 235. 128 SAFETY AND HEALTH. § 137 ajrainst the disease, but afrainst the locality from which the import comes. In Minnesota a statute prohibited the sale of fresh beef, veal, etc., except from animals inspected by local officers in the stati^ within twenty-four hours before their slaufi:hter; in Virjrinia a statute allowed the sale of fresh meat at a distance of one hundred miles or miu'c from the place of slauiihter only after inspection by local officers for which the owner lind to |)ay one cent per pound. The Supreme Court declared both statutes unconstitutional, the Minnesota Act, because it made the importation of fresh meat from other states jn'actically impossible.-' the Viro:inia Act because it burdened this im- l)ortation by an onci-ous tax havintr practically the same ett'ect as an absolute ])rohibition.-- Another Yirjjinia act Avas de- clared unconstitutional which required the inspection of all fltiiii- lirouirht into the state and payment of a fi>e therefor, while it (lid not require the inspection of Hour made within tlif statt*.-- Ill these cases it was clear that the statute ex- presslx' or hy necessjii-y operation made a difference between the state in which it was enacted and other states, which did not corri'spond to a similai" difference of sanitary conditions. FjVcii wlici-c tilt' disease guarded aj;ainst is local the pro- tection of the freedom of connnerce will warrant an inquiry whellici- tile daiiiicr justifies the dcni-cc of the restraint im- po.sed. S(» ;i .Missouri statulc fdrliiddiiii; the importation of Texas cattle durinir ci.irlit inontlis nl' llic vcjir, was declared une<»nstit lit ioii;il.-' The court took tlie view that since no dis- eriniiiiat ion was madr lirtweeii sound mikI infected cattlt\ the sliitiitc went bey(»nd the necessities of tlu' case. Uut in llu' later ciise of Kiiiiiiiish v. I'.all-"' the court said, referriiiL;' to Uailroad ( 'om|»an\' v. Iliiseii: ".Xo ;itteiiipt was iiiiide lo show that all Texas. Mexic;iii. or Indinii c;it11e coiiiin;.r iVoiii the malaria! districts cr. I.'IC. I'. S. -'•> Voi^jlil v. \Vri^;lll, Ml I'. S. iJi', •''•i:». !'.-). 1M7M. 20 129 IT. H. JIT, IHSfl. § 139 FEDERAL LIMITATIONS. 129 court." This statement, contirnied in a subsequent case,-" indicates that a proper quarantine measure will he upiicld though operating against importation from other states where it can be shown that the source of disease is local, and this principle lias since been liberally applied by the Suj)rem«' Court.-' § 139. Louisiana v. Texas.— The conflict between state police power and the freedom of interstate commerce was presented in a peculiar form in the case of Louisiana v. Texas.^** The health authorities of the state of Texas had declared a rigid quarantine and embargo on goods coming from New Orleans, where cases of yellow fever had appeared, virtually prohibit- ing all commerce from that city into Texas, to the great detri- ment of the business interests of New Orleans, and, as was alleged, to the great advantage of rival commercial centres in Texas. The state of Louisiana, alleging that such absolute l)rohibition was unnecessary— as was demonstrated by the very different treatment on the part of Texas of fever infected parts of Mexico and the West Indies— and that her citizens were thereby impoverished, the value of her taxable property and ])ublic lands reduced, her revenues diminished, and immigra- tion into the state retarded, asked for an injunction against the state of Texas, her governor and health officers, restraining them from carrying into effect such regulations and from ap- plying to New Orleans other regulations than those establisbinl against other foreign ports infected with yellow fever. The Supreme Court refused the injunction on the ground that it had no jurisdiction over a grievance of that character which did not constitute a controversy between two states within the meaning of the second section of the third article of the con- stitution. The court held on the one hand that inasmuch as the vindication of the freedom of interstate commerce is not committed to the state of Louisiana, and that state is not en- gaged in such commerce, the cause of action must be regarded, not as involving any infringement of the powers of the state of Louisiana or any special injury to her property, but as as- serting that the state is entitled to seek relief in this wa>- because the matters complained of. aff'ect her citizens at large, ■2<: Missouri, K. & T. E. Co. v. Ha- Co., ISl U. S. 248; Reid v. Colorado, her, 169 U. S. 613, 1898. 187 U. S. 1.S7. -•T Rasmussen v. Idaho, 181 U. S. -'s 176 U. S. 1. 1900. 198; Smith v. St. Louis & S, W. R. 130 SAFETY AND HKALTir. § UO which is obnoxious to the principle thai the Eleventh Amend- ment must not be evaded by a state assuming the prosecution of claims of her citizens against another state; it held on the other hand that "a controversy between states does not arise unless the action complained of is state action, and aets of state officers in abuse or excess of their powers cannot be laid hold of as in themselves committing one state to a distinct collision with a sister state. "-'-^ Whether the action of the Texas health officer was justified by the statutes of Texas or whether it was valid or invalid under the Federal Constitution, the court does not determine, but some of the concurring ojiinions strongly intimate that if a case were properly brought before tht» federal courts, the Texas regulations might be de- clared void as violating the freedom of interstate commerce, if their character appeared to be as alleged. The case shows very clearly the possible abuses of the sanitary power of the states, and points to the remedy suggested by the court, namely, that "Congress could by al'lirmative action, disi)lace the local laws, substitute laws of its own, and thus correct any unjusti- fiable and ')])pressive exercise of power by state legislation." LOCAL rOWKKS FOK TIIH PHOTI-:('TIOX OF SAFETY AND HEALTTT. §§ UO-142. ij 140. Delegated ordinance powers. The exercise of the police power for safety and healtli is of the greatest importance in ciost'ly populated districts. 'I'his part of the police powei* has thcn'rorc chiefly grown up in cities, and there to-da>' (inds its in<»sf extensive aj)|)lication. This fact is recognised by an ample (lelei,Mti(»n «if j)owers of local legislation in this field by file state to inc<)rpoi'ate(l muni(ip;ili1 ies. This delegation — found in special cbai'ters or in genef;il a<'ts niidei- which cities are organised — consists |i;irlly in Hie einnner;il ion of specific powers inilicating the sui)jects uimti which, .-iiid the measni-es by which local legislation m.i\ operate. i)artl\' in grants of power, couclie«l in more gcnerji! tiTnis, to dechice \\\\:\\ sli;ill he a nnisjincc, and to altatc the .same; to do ;dl acts and make all regulations wliieh may be necessaiy oi- i-.\|)e(lient for the j)i-o- inotion of health ot- the sn|>pressioii of disease; or generally to provide ff»r the safety, welfare, .-iiid good goveniiiient of the connininity (k'cnenil welfare clause). wHw on the point of jiiri.mlirfion, MiwHonri v. iJJiiKpis, isd IT. S. 208. § 141 LOCAL POWERS. 131 Comparing the list of subjects of ordinance power to be found in most American city charters with the classification of safety and sanitary legislation above given, it will be found that it covers almost the whole of the police power in this mat- ter, so far as its operation can be locally restricted to the terri- tory of a city. The notable exceptions are regulations con- cerning the practice of professions and the field of factory legislation, which are usually left to state statutes, the former having no specific reference to density of population, and the latter having a considerable influence upon conditions of pro- duction and being therefore inseparable from economic inter- ests generally reserved to state legislation. The principle of delegation seems to be to make the municipal police power co-extensive with local dangers arising from the close aggrega- tion and contact of persons and property in a limited space or territory. § 141. Principle of construction.— This principle of delega- tion may be fitly recognised as a principle of construction of charter powers, which should, if consistent with their wording, be given an effect adequate to meet local dangers by appro- priate and customary measures of restraint or requirement. In case of an epidemic disease local authorities are allowed to exercise incisive powers over person and property^** which in the absence of immediate danger would not be sustained under a delegation couched in general terms. s^ Under a power to take measures for the prevention of fires, or even under the general welfare clause, cities may, according to the predom- inant judicial opinion, establish fire limits, within which the erection of frame houses is prohibited •,^^ a power in some juris- dictions denied in the absence of a specific grant,^^ but sup- ported by the long established practice of legislation.^^ As regards establishments or arrangements which affect health only very remotely, and are dangerous chiefly when not properly kept, or when existing in excessive numbers, or when 30 Mayor of Baltimore v. Harri- 29 La. Ann. 651 ; City of Olympia v. son, 1 Gill. (Md.) 264. Mann, 1 Wash. 389, 12 L. R. A. 150. 31 Potts V. Breen, 167 111. 67, 47 33 Hudson v. Thornc, 7 Paige 261; N. E. 81. Pye V. Peterson, 45 Tex. 312. 32 Wadleigh v. Gilman, 12 Me. 34 Massachusetts Colonial Acts of 403; Alexander v. Greenville, 54 1679, 1692; Resp. v. Duquet, 2 Miss. 659; Ford v. Thralkill, 84 Ga. Yeates (Pa.) 483, 1799. 169; Mayor of Monroe v. Hoffman, 9 232 SAFETY AND HEALTH. § 142 located in built-up portions of a city, we may distinguish two tendencies in the judicial interpretation of municipal charters : the one, to sustain their prohibition only where the. particular establishment can be shown to be a nuisance in fact ; the other, to allow a total prohibition within the city limits, provided the prohibition is not altogether unreasonable or oppressive. So as to cemeteries. 3'''' hospitals,^*^ keeping animals,^" and slaughter houses."'^'' Where the power is only to declare and abate nuisances, it is properly restricted to nuisances in fact; where a power is given over a subject-matter that ma.y tend to give rise to nuisances, the charter will usually express whether it is a power to regulate or to suppress. In the ab- sence of such expression it would seem that the city should have power to forestall the nuisance by keeping the danger altogether away from its territory, provided such course is in / accordance with the customary practice of municipalities ; and provided that regulation is not e(iually efficient, for then pro- hihition would be oppressive and unreasonable. J5 142. ^i* Judicial control as to reasonableness:— The nuinieipal police power is subject to a strong jutlieial control as to the njode of its exercise. The courts assume a general function of supervision regarding the adjustment of means to ends in the protection of public interests. While they profess to regard the state legislature as a co-ordinate power, they frankly treat thi* nninicii)al authorities as subordinate. Through this atti- tuile the courts have avoided the laying down of absolute liiiiitjitions, but have been satisfied to judge each ordinance oil its own merits. This jirocess has however resulted in devel- oping i)rincii)les of limitation which can with great advantage bf applied to state legishilion. As the power of judicial control •''5 Wider p0; P«K)plo V. Pratt. 129 N. Y. OS, 1S<»7; State v. Holcomb, OS I:.. 107. 29 N. K. 7. Narrower: V.\ parte (I'Lcarv, i\~> Nnrrf)wor: Lake \'ie\\ v. Let/,, 41 Miss. SO; ArkiKlelpJiJa v. Clark, 5:2 111. HI. Ark. L'.J. I" Wider power: .Milne v. David- •••"Wider ])ower: i;.\ |i:irte lleil •on, r> Mart. N, H. 409, 18'J7; jier- hron, 65 Cal. 00!»; BeiliiiK v. lOvans- hnpH to \h> explained by loeal Hani- ville, 144 Ind. (511; .'55 L. W. .\. 272. Uiry eonditionH in New OrleaiiH. Narrower: Wrcford v. I'eople, 14 Narrower: HeUn'tmen v. Murray, Mich. 41. Ifl I'iek. 121; HeHMonieH v. Fmlian- •■"• Adtninislrat ive orders, see npoli" '1 T..d m9^ isHO. J''irc Dopt. v. (Jilnionr.MK N.Y. 453. § 143 CONDITIONS AND MEASURES. I33 over statutory legislation is more and more distinctly assumed, and the theory of the necessity of express limitations is aban- doned, the adjudications on ordinances will become more valu- able as x)recedents to indicate the measure of legislative power in the interest of health and safety. Even applying some of the essential limitations of the municipal ordinance power to state legislation, others will remain peculiar to the former. Under the principle of local self-government, local authorities cannot be vested with powers necessarily exceeding their ter- ritorial jurisdiction ; those matters therefore, which eciually affect the people of the state at large, and cannot be confined locally, must be reserved to the state legislature ; so the opera- tion of railroads apart from local traffic aud the safety of the streets of the city. Moreover, the inauguration of a novel policy in matters of safety and health, the prohibition of arti- cles of consumption possibly but not undoubtedly injurious to health, the establishment of monopolies, the restriction of the right to pursue established avocations, may under circum- stances be conceded to the legislature of the state, but cannot be introduced by local authorities under mere general grants of power. LIMITATIONS OF HEALTH AND SAFETY POWEES WITH EEFEEENCE TO CONDITIONS AND MEASURES. §§ 143-155. § 143. The problems involved.— The peculiar difficulty of safety and health legislation is that the possible causes of injury to person and property are extremely numerous and practically ubiquitous, that there is hardly any industry in which they may not be found if sought for, and that while the danger is often slight and remote, the measure devised to com- bat it may profoundly aft'ect economic interests, favoring one set of interests and prejudicing another. The questions which present themselves in the examination of a safety or health measure are: does a danger exist? is it of sufficient magnitude? does it concern the public? does the proposed measure tend to remove it ? is the restraint or require- ment in proportion to the danger? is it possible to secure the object sought without impairing essential rights and princi- ples? does the choice of a particular measure show that some other interest than safety or health was the actual motive of legislation ? j^34 SAFETY AND HEALTH. § 144 $ 144. Inconclusiveness of legislative judgment.— All these are (Jonn. 123, l.'W. may mak«> inve<(tigations which the - He Morgan, 2(5 (!ol. 415, 47 Ti. r....,r» •■■•mot." (I'eople v. Smith. 1? A. 52. § 146 COiNDITiONS AND MEASUKES. I35 measure proposed, the effect of time of labor upon health is the exigency or occasion ; and it is difficult upon that l)asis to dis- tribute the functions of courts and h'oishitun-s. § 145. Judicial notice of established scientific laws and general conditions. — Thei-e is, however, sufficient authority for saying that while the courts will not enter into controverted questions of fact, they Avill take judicial notice of established sanitary and mechanical laws and conditions, of the (juality of articles of consumption, etc. Thus the Supreme Court of Illi- nois has taken notice of a degree of danger in holding that safety regulations required in densely populated districts or countries are unnecessary in a more sparsely settled country ;3 the United States Supreme Court has recognised that while the wholesomeness of a novel article of consumption may be a doubtful question to be resolved by the legislature, it may in course of time become so well known and established that its wholesomeness will be judicially noticed.-^ The judicial notice may also be of a negative character ; i. e., the court may refuse to accept legislative condemnation, because it knows that the detrimental character of an article is not established. So in the matter of cigarettes.^ § 146. Sanitary purpose need not be expressed.— A legisla- tive declaration that a danger to health or safety exists is therefore not conclusive. If the danger exists an express legislative declaration of the fact is not necessary ; it is suffi- cient that it appears from the provisions. Even where the subject-matter of a law must be stated in its title, an express reference in it to health or safety is not necessary.^ When the act proclaims itself expressly as a safety or health measure, while in fact it subserves another interest, a question under constitutional provisions as to title may arise, although thr precise point does not appear to have been adjudicated ; but where the subject-matter is otherwise sufficiently indicated in the title, an additional untenable reference to safety or hen 1th should not be fatal, if not deceptive or misleading. Thus it is conceived that a title "an act to regulate the manufacture and 3 Toledo &c. E. Co. v. Jacksonville, ■' Dictuvi in Austin v. Tennessee, 67 111.37. 179U. S. 343. * Scholleuberger v. Pennsylvania, "= Re .Morgan, 2G Col. -415, 47 L. K. 171 U. S. 1. A. 52, recognising tliis with some hesitation. -^36 SAFETY AND HEALTH. § 147 sale of oleomargarine, and for the better protection of the public health" (leaving out the words "and for the prevention of fraud" which are found in the law of New York), would not be fatal, although oleomargarine legislation can be justi- fied only on the ground of prevention of fraud. § 147. Difference of objects as justifying different meas- ures.— The distinction between different objects of legislation is important, because a measure may be appropriate and admis- sible for one object, but not for another. The sale of oleomar- garine may be subjected to stringent regulations, to protect the public against fraud ; it can, according to the better doc- trine, be absolutely prohibited only if the article is unwhole- some, and the probability that the article may be so adulterated as to become unwholesome does not furnish a justification for an absolute prohibition." The diff'erence of objects may also become relevant if the enactment proceeds from a subordinate authority having power only to protect health and safety. It may thus be questionable whether a prohibition against spit- ting in public conveyances is within the power of a board of health: or whether the prohibition of bill boards could be jus- titi»'d iiH'i't'ly as a regulation foi- safety.*^ If watered milk is not uiiwhoU'soiiu', its sale may be forbidden as a measure against fraud only if it is sold as milk, on the ground that an article sold under that name may l)e required to have standard ingredients prescrilnd liy law, the statute could probably not condemn it as unwholesome, and (»ii lliat ground pr()hil)it its sale al)S()lutely no matter how ti-uthi"ully the admixture were indicated tn tin- purchaser." 5; 148. Measure must tend to remove danger. — That the measure proposed should at least have a tendency to remove or re(lu<-e the danger against which i1 purp(U-ts to he dii-ected, is a princii)le which does not need unich argumeni to supj)ort it. Tlie case of Chicago v. Xelchei-'" rurnishes an e.xaiuple of an 'riactmeiit - in this case an ordinance based u|)on the sani- T SrholIenbcrKor v. I'ciiiiHylvaniii, v. WchI, 104 N. V. SIO. M N. K. 673. 171 U. 8. 1; Penplr> v. Marx, 05) N. » Pcr.pio v. ('ippprly. 101 N. Y. Y. 377; cnntrn, I'nwrll v. Ci.mmon- VM, .-ippMnMitly lo the cotitrarv, Imt wraith. 114 I'll. Hf. 2r^^^■, \\'r\v.h\ v. the Htiitiitc coiKlcninod watered milk 8»nlc, SH .M.|, 4.1(5, M Atl. TSr*. as a.liiltcrafod, not uh unwholesome. • Upheld on that ^fronnfl, RochcHter i" 183 III. 104, 55 N. E. 707. § 149 APPROPRIATENESS OF MEASURES. 137 tary power, yet having no ascertainable relation to the public health. The ordinance made it unlawful for any person selling dry goods, clothing, jewelry, and drugs, to have exposed for sale, or sell, any meats, fish, butter, cheese, lard, vegetables or other provisions. The city of Chicago has power to regulate the sale of these provisions, and to provide for place and man- ner of selling the same. This power is granted for the public health, but the mere prohibition of their sale by persons who also happen to sell other goods without reference to place or manner of sale, has evidently not the slightest tendency to I)romote the public health. The ordinance was therefore de- clared to be invalid. There can be no doubt that a statute containing the like enactment would not have fared differently. § 149. Measure need not be the most adequate conceivable. — On the other hand a statute in providing against some par- ticular danger need not cut off all possible ways of incurring it, provided the measure adopted greatly reduces its likelihood. In sustaining the act forbidding women to be employed in any manufacturing establishment more than ten hours in any one day, the Supreme Court of Massachusetts remarked' ^ that this prohibition did not prevent any woman from laboring in any occupation as many hours as she pleased, provided she did not labor in the same service. This possibility, so far from remov- ing, might on the contrary be held to be an objection to the constitutionality of the act, if it in reality frustrated its object, for a restraint serving no purpose has no justification. But practically the control of the number of hours of labor of one person in one employment, will have the effect that such person will not work beyond the number, for he is not apt to seek or obtain employment in another occupation or estab- lishment for additional hours of the same day, and the legisla- ture may take cognisance of that fact in order to avoid a needless complication of laws. In connection with the statement that it is sufficient if the restrictive measure tend to reduce the danger, though not all means of providing against it are exhausted, mention should be made of the cases holding it unconstitutional to forbid any person to sell patent and proprietary medicines and domestic remedies at retail unless such person is a registered pharma- 11 Commonwealth v. Hamilton Manufacturing Co., 120 Mass. 383. 138 SAFETY AND HEALTH. § 150 cist.'- These eases hold that since these medicines are pre- pared ready for immediate use the fact that the seller is a pharmacist, of itself, furnishes no protection to the public * * * ''without some further regulation as to inspection or analysis that would tend to exclude from sale those that might be injurious to health or something requiring pharmacists to exercise their skill and science in determining the quality and properties of such as they sold." Such a provision would un- doubtedly add very much to the efificiency of the measure, especially as the duty to examine the medicine sold or a war- ranty of its soundness is not implied/"^ and yet it is true that the skilled pharmacist is more apt to recognise and to exclude from sale compounds which are positively harmful. It is there- fore perhaps too much to say that the public health is not protected in any manner. vi 150. Measure proportionate to danger.— The restraint must not be disproportionate to the danger. This is simply an appli- cation of the principle that every exercise of the police power must be reasonable, a principle long since enforced as against municipal corporations, but also beginning to be recognised as binding on the legislature. Thus in Toledo &c. R. Co. v. Jack- sonville'^ an ordinance was set aside requiring a railroad com- pany to keep a tlagman at every street crossing, even where traflic was very light. The court said it would treat the measure as if the city had all the powers of the state legisla- ture. Compulsory vaccination is as a rule allowed only where an epidemic of smallpox exists or is threatening.'^' And with regiird to sanitary re!c, 1K7 III. r>H7, 58 cretion of the Mn;inl. N. K. ni«. Thf net of lllinoiH al- i-> WohI. v. Knuiniicl, I'.IS Pa. 180, lonrd llif JKHiiu l»y the State Hoard iJ.S L. H. A. :JL'!». of I'liarmacy of pertnitH for the wile '■'(57 III. 37. of patent medieincH to any ;:iiiist a Hvslcm the <>no or iipprovo the other. " Slate of mcdicitie, we .slmiild not liesitrite I Wft«h. ■»'J4, :<0 l'a<-. 7'2'.K to liold tliat tlie hoard liad exceede.l ■ V. (Jriivctf, {\r, Oh. St. its power." Nel.son v. St.-ite IJoard 'JH», fl2 N. K. 3U5, nr, I.. |{. A. 7»1 ; of H.-alth, L'l! Ky. L. Hej). 4W, Fyi) h. iVopIo vx ri'l. Hfale I'.d. Health \. 1.'. .\. :\h:\; State l?oarn ha. Ann. 1358, 24 8o. 809. 1835. § 155 PROTECTION OF A CLASS. 141 professional treatment of the sick, though not "medical," by a system of examination and licensing not amounting to ])r()- hibition, whether such treatment consist in simple nursing, or in manipulation of the body, or in influences brought to bear upon the mind. And since the terms medicine, physician, doctor, M. D., etc., have a well established meaning, the law may clearly prevent their fraudulent use to indicate the pos- session of qualifications which as a matter of fact do not exist. Xor is there any decision Avhich denies such power. Cases in which it is held that a statute, properly interpreted, does not extend to a certain method of treatment, furnish no basis for the contention that a system of regulation expressly including that method would be unconstitutional. § 155. Measures restraining a class for its own protection.— The Supreme Court of Colorado, in the decision by which it annulled the miners' eight hour law,^^ asserts the principle that while the sanitary power extends to the protection of the health of the community at large, and even of the health of portions and classes of the community, yet it may not be exer- cised so as to protect these classes from their own acts. "The reason for the existence of the power rests upon the theory that one must so use its own as not to injure others, and so as not to interfere with or injure the public health, safety, morals or the general welfare. How can one be said injuriously to affect others, or interfere with these great objects, by doing an act which confessedly visits its consequences on himself alone? and how can an alleged law that purports to be the result of an exercise of the police power, be such in reality, when it has for its only object, not the protection of others or the public health, safety, morals or general Avelfare, but the welfare of him whose act is prohibited, -when, if committed, it will injure him who commits it and him only?" It is true that the police power does not undertake to protect the individual against his own acts, partly because that would involve an inquisitorial control over private life and conduct both intolerable and unenforceable,^^ partly because the police power ought not and is not intended to be a substitute for individual self-control and responsibility, but finds its proper sphere in guarding against evils and dangers beyond th(^ con- 25 Re Morgan, 26 Col. 415, 47 L. -« See Sec. 453-455, infra, Liberty K. A. 52. of Private Conduct. 142 SAFETY a>;d health. § 155 trol of him whom they threaten. The right to choose one course of action even to the extent of incurring risks, where others are not concerned, is a part of individual liberty. This principle can be traced through the whole of our police legis- lation, Avhich, e. g., would not assume to prescribe for the individual affected with a disease which is not contagious a specific course of medical treatment. If individuals are for- bidden to do acts primarily dangerous to themselves on rail- roads, in sports, etc., it is either because even an individual accident may disturb or endanger the general traffic, or be- cause—in the case of sports — the exhibition of dangerous feats may amount to a public nuisance. It is, however, a fallacy to transfer this argument from the individual to a particular class, and to say that the police power has no business to protect the class against its own acts. It is conceded by the Supreme Court of Colorado that the in- terest of a class may constitute a public interest, that is to .say, an interest of sufficient magnitude to make itself felt throughout the community. If then the health of the class is impaired 1)\' long hours of work under unsanitary conditions, a public interest exists which may set the police power in motion. If the employer had absolute poAver, he might be constrained for the benefit of the class, as he may be and is constrained to adopt sanitary and safety arrangements in mine or factory, and it is noteworthy that the Supreme Court of tin- I'niled States recognises in the limitation of hours of lalior i)riniarily a restraint upon the employer: ''The pro- prietors lay (jown llu' rules and the lal)orers are practically constrainiMJ to obey them."-" However even if we regard the restraint as being laid upon the employee, it is not true that t-acli ('iiipioycc is protected against his own aets.-'^ In reality the law imposes the restriction npon any one member on behalf of all othci-s, it heing well imdei'stood that if a portion of a class jire willin^r to accept nns;ini1;ii\v conditions competition will force others to do the lil People v. Rosenberg, 138 N. Y. 7 People V. Armstrong, 73 Mich. 410, 34 N. E. 285 ; Commonwealth v. 288 2 L. R. A. 721. Plaisted, 148 Mass. 375, 2 L. R. \. 8 Ex parte McCarver, 39 Texas 146 PUBLIC ORDER AND COMFORT. § 159 ji 159. Order and freedom of commerce.— A power exercised Id jrood faith for i)ublic' order and eonifort Avill be recognised by the United States though it may bear on agencies of com- merce. Thns an ordinance of the city of Chicago was uphold which provided that bridges across the Chicago River, a navi- gable water of the l.'nited States, should not be opened for passage of vessels diu-ing one hour in the morning and one hour in the evening, and that during the daytime it should be opened for not longer than ten minutes at a time, and then to be closed for fully ten minutes to allow passengers to cross. "The local authority can better direct the manner in which they shall be used and regulated than a government at a dis- tance. It is. therefore, a matter of good sense and practical wisdom to leave their control and management with the state. Congress having the poAver at all times to interfere and super- sede their authority whenever they act arbitrarily and to the injury of connnerce.''^" So a state law was sustained forbid- ding the moving <>f freight trains on Sundays." POWKK OVER E.NCKOAClliMENTS ON STREETS. §§160-164. .i IGO. Fee and easement. — Streets and olln'i- public places are real estate ;ind as sueh sul\jeet to pr()i)rietary rights. The pulilic right in tlie street may be acquired by reservation, pur- chase, dcflieation or condemnation, and it may be either an casement or a fee. Where the fee remains in the adjoining owner, he may retain certain rights in the soil unall'eeted l)y v|i t uses, and be ]ii;iy be entitled 1o additional compensation 14:^, an order of ii l)t>jirpb< 'I m statutes: S. .'S'.t'.t. § 161 ENCEOACHMENTS ON STREETS. I47 for an increase in the public easement by novel and burrlon- some public uses.^^ n has also been intimated that the original owner may dedicate a highway c«w onere, i. e., subject to an existing encroachment, as for instance trees. ^-"^ But at least as far as city streets are concerned, the public easement is neces- sarily so comprehensive, if it is to be adequate to the complex uses of soil and surface for improvements deemed essential to modern municipalities, that the difference between fee and easement has become more and more technical and insubstan- tial, and the city's rights against the abutter are for most pur- poses the same whether the fee is in the city or in the abutter. "On the general question as to the rights of the public in a city street we cannot see any material difference in the prin- ciple with regard to the extent of those rights, whether the fee is in the public or in the adjacent land owner, or in some third person. "1^ § 161. Control of public use.— In placing a structure upon or under or over the street, the adjoining owner, therefore, although he may have a technical legal title to the soil, is necessarily subject to any restraint required by public street uses.i^ The city controls the street in trust for the public, and has no inherent right to surrender or impair that trust. The legislature of the state which represents the public at large and controls the trust upon which streets are held* (subject to private easements of light, air and access), may either grant directly the right to occupy part of the street, as for instance for door-steps,!" or may authorise the city to grant to the ad- joining owners rights in the streets; but an express grant of such power is unusual.^" 12 See as to these rights Dillon the coustitution the legislature can- Munic. Corp., Sees. 687-704a; also not grant the exclusive use of a §§ 509 510, infra. street to an individual must be un- 13 State V. Vineland, 56 N. J. dorstood with reference to a grant Law 474 23 L. E. A. 685. which makes the street useless to the iiBarney v. Keokuk, 94 U. S. 324, abutters, and not as forbidding the 1877; Dillon, Sees. 689-699. grant of reasonable privileges; the 15 Allen v. Boston, 159 Mass. 324; decision seems to anticipate the doc- McCarthy v. Syracuse, 46 N. Y. 194. trine of the New York Elevated E. v« Gushing v. Boston, 122 Mass. Co. cases. Dillon, Sec. 660, refers 173, 124 Mass. 434, 128 Mass. 330. to it as an extreme view. The' remarks in People v. Carpenter. it instance of power to grant en- 1 Mich. 273, to the effect that under croachraents expressly given to city: 10 148 PUBLIC OEDER AND COMFORT. §162 § 162. Customary encroachments.— What then is the legal status of the eneroaohments so commonly found in city streets: signs, awnings, posts, porches, stands? If they obstruct the street, diminish the space available for walking, or impede traffic, they are nuisances subject to indictment and abate- ment,'* and it is not necessary that the comfortable enjoyment of the highway should be interfered with materially.''-^ Some decisions require for criminal prosecution more than a technical encroachment. A liberty pole erected in the street,-*^ a vault,-' an opening in the sidewalk in front of a cellar window for light and ventilation, usual and customary in the city,-- a plat- form with steps for approach to a building within the area generally used for that purpose, ^3 stepping stones for car- riages.-^ and a wooden awning over a sidewalk-'^ have been liild not to be nuisances per se. Perhaps in these cases a license from the city could have been implied from custom.^^ ); 163. Power to prohibit and regulate. — \Yhere the city, as is usuall\- tlif case, has power to regulate the use of the streets, or to declare and abate nuisances, or to prevent and remove encroachments and obstructions, it may by ordinance prohibit all structures in any way impairing the public easement; and an cxprrss power to prohibit ma}' be interpreted as re({uiring Kirtianrl v. Mayor of Macon, 66 Ga. 385; Daly v. Georgia &c. R. R. Co., H(» (;a. 7St:^. • "Projecting steps, Hyde v. County of Middlesex, 2 Gray 267, 1S54; Cinw. v. Dlaisdcll, 107 Mass. 'SM, 1H71; Pettis v. .Inliiison, r)6 Ind. I'M, 1S77; hay windows, State v. K«in, 61) N. n. 122; stalls and cases for ineri'handise, Lavery v. llanni- gan, 20 .1. & S. UV.i. ISKf); fmw. v. Wcntworfli, Hrightly (Pa.) iJlH, 1823; Idling v. Americus, Hfi Ga. 7r)fi, IWM. • •Htati- V. lirrdetla. 7.H Ind. iMf). ><• Alleghany v. /irnnicrtnan, •.•"> Pa. Hiatf, 2H7, IHSn. »« Dillon. Hoc. nm>, State v. Ho- bnkrn, 33 N. .1. I.. 2H0; West Chi- cago .Manonic Afwociation v. Crdin, 192 III. 210; Denhong v. New York, OH N. K. 880. ■•;••! King V. Thompson, 87 Pa. State 365, 1878. •■!3 Murphy v. Leggett, 164 N. Y. 121, 58 N. E. 42. 2* Robert v. Powell, 168 New York 411, 61 N. E..699. -•'' TT.Mwkiiis V. Sanders, 45 Midi. 4itl. 2" Nelson v. Godfrey. 12 111. 20. Switch tracks connecting a railio.id with a factory or warehouse, tlioiigh paid for l)y tiie owner of tiie latter, are ill Illinois lieM to he part of the puhlii; road, and justi(ieoria (irap<' Sugar Co., 101 III. 561 ; Chicago Dock C.inal Co. V. Garrity, 115 III. 155, 3 N. K. 44S; McG:iini v. I'.-ople, l!tl 111. 526, 62 \. v.. 041 ; People v. DIocki, 203 III. 363, 67 N. E. 809. e 163 ENCEOACHMENTS ON STREETS. 149 positive action by the city before the encroachment can be dealt with as illegal, so in the matter of trees ;2" but where the charter recognises the customary existence of technical en- croachments such as awnings, and gives power to regulate them, an absolute prohibition may be held to be unreasonable.^** But the city may, nnder the power to regulate the nse of streets and sometimes under express power to regulate the use of side- walks and structures thereunder, or to regulate their use for signs, posts, awnings, etc., authorise customary encroachments, and such authority will then remove the indictability of the structure.2» Such authority may be made to depend upon com- pliance with prescribed conditions, and the disregard of such conditions may then make the structure a nuisance,^^ but the city cannot authorise a structure that would materially incom- mode public traffic f^ and above all, under its ordinary powers of regulation the city cannot part with proprietary rights, and the authority which it gives is in the nature of a license sub- ject to revocation.32 But it has also been held that the revoca- tion of a license, if not called for by some public need, will be treated as oppressive and therefore illegal, before the licensee by the use of the structure for a reasonable time has been reimbursed for his outlay in erecting the same ■,^^ after twenty years enjoyment a full return for the outlay may be presumed to have been obtained.s^ a grant of more than a license, so the grant of a franchise to occupy the street with tracks, poles, etc., requires express legislative authority.^^ The power over encroachments on water, suchi as piers and bridges, is governed by the same principles as that over street encroachments. 2^ 27 White V. Godfrey, 97 Mass. 472, 32 Council of Keading v. Common- 1867; Bliss v. Ball, 99 Mass. 597, wealth, 11 Pa. State 196, 1849; in 1868; Cross v. Morristown, 18 N. J. tlus case a legislative license was Eq 305 1867 li^ld to be revocable; ex parte Tay- 28Hisey v.* Mexico, 61 Mo. App. ^or, 87 Cal. 91, 1890; Hibbard v. 248, 1894; see also State v. Higgs, ^^l^i^ago, 173 111. 91, 1898. 126 N. C. 1014, 48 L. R. A. 446. ^^ Town of Spener v. Andrew, 82 29 Everett v. Marquette, 53 Mich. la. 14, 12 L. R. A. 115. 450, 1884; ex parte Taylor, 87 Cal. 34 Augusta v. Burum, 93 Ga. 68, 91, 1890; Dillon, Sees. 732-734. 26 L. R. A. 340. 30 Pedriek v. Bailey, 12 Gray 161, 35 See Sec. 658, infra, 2g5g^ 30 Mayor of New York v. Cunard 31 Pettis v. Johnson, 56 Ind. 139. S. S. Co., 61 Hun 346; State 150 PUBLIC ORDER AND COMFORT. § 164 ^ 164. Protection of streets from injury, etc.— In protecting streets and public grounds from injury and defilement the city does not act in its capacity as a corporate owner of the fee of the street, but in the exercise of the delegated power to regu- late the public use, the regulation here consisting in such meas- ures as will maintain public use and enjoyment to the utmost extent ; therefore the city may protect trees from injury, even as against the acts of the adjoining owner who owns the fee of the street and therefore the tree itself.^^ The city should also have power to prevent the distribution of handbills if it is matter of experience that the handbills will be thrown away and the street will thereby become littered with pa»per ; it has, however, been held otherwise in ^Michigan.^^ THE COMMOiX RIGHT TO USE PUBLIC PLACES. §§ 165-170. ^ 165. Natiure of common use.-'''— The adjoining owner who encroaches upon the street, however slight the encroachment may be, is at best a licensee, and the limitations or conditions (lualifying the license cannot be regarded as impairing any right of property or liberty protected by the constitution. The coiniium use of the streets is, however, far more than a license. This use is of the essence of the purpose for which the street exi.sts, for which it has l)een dedicated, or for which the power of eminent ilomain has been exercised, and it enters therefore into the very nature of the public highway, and the use is so essential to the functions of social jiml economic life that the full enjoyment of individual libcrly and property cannot be eonceiveil witlioul il. It must, therefore, be looked upon as <>n<' of the constitulional rights of the individual, in so far as the iDdividual is p;ir-t of the geni'r;il mass ol' flu' people which is rlrsiL'ii.'itiMl iis the |)iil)lie. >; 166. Power to vacate highway. — Tli is rinht wllaehes to the liighway while it is a high\v;iy, jiiul is not inconsistent with V. InhahitnntH nf Kropporf, 13 Mo. ImuHt's, if tlicy arp likply to bo taken 1J»H, 1857; rc'«)iilc V, VaiidcrJiilt, .'IS up by tliP wind ami Hcattored in the Hnrb. 'JH'J, IHH'J. Hcp 55 lOii-lOS, HtrcptH. IMiiladpIphia v. BralxMider, infra. -'"M I'a. •'■)74, 5H L. K. A. JL'O, f)! a^HiikcT V. .\..rmal, Ml 111. jOH. Atl. :i71. 3» I'ooplp V. AniiHtroii);, 7'.\ .Midi. ■'"' DiHtiiictidii bctwi-cn ((iiiiiiKiii usu 2H8, 2 h. K. A. 7-1. Hpp px partp and cxi'IiiHivc poBHCSHion pr)intP(l out Ciminpllo, 62 Cnl. Ti^H. TIip pity may in Ht, LoiiIh v. W. U. TcI. Co., 148 forbid tlip throwing of liandbillH, U. 8. S>li, pp. (♦MOO. <•'■• ;•■♦■• »'■■ ^'"tibuic* of j)rivatp § 167 POWER OVER USE OF STREETS. Jf,! the right of the organised community to vacate or discontinue a street. For such vacation proceeds upon the theory that one particular highway is no longer required for public use, and so long as sufficient other accommodation of traffic and passage exists, the right to the common use of streets remains practi- cally unimpaired. It is another question— which need not be further discussed here— whether the delegated power of a municipality is sufficient to vacate a street, and in how far the special easement of an abutter qualifies the exercise of the public right.'**' §167. Power over use of street not absolute."* i— The Su- preme Court of Massachusetts has said that the right to put an end to the dedication to public use includes the lesser stej) of limiting the public uses to certain purposes, and it has likened the power of the public over the highway to that of the owner over the private house.'*^ The case before the court was one, not of common, but of special use of a public park (public speaking on the Boston Commons) ; and with regard to the common use of streets the statement cannot be accepted as correct; for the power to abolish the public use altogether is one which in the nature of things cannot be exercised with regard to all streets alike ; hence it has in reality no existence in the same sense as the asserted right to limit public uses, and the argument from the greater to the lesser is therefore unwar- ranted ; the right of the private owner to control the use of his house is unlimited, and to concede the like power to the legis- lature would be equivalent to the recognition of a despotic power over every act which may be done in the public streets without regard even to the requirement of due process or of equality. It is obvious that such power cannot be claimed under our system of government. The sound principle is that every restraint upon the common use of streets must be justifiable upon established principles of government, and cannot be referred simply to the imcon- troUed exercise of proprietary discretion.-* •' This follows from the fact that the highway was, and could have been, acquired 40 Dillon, Sec. 666, Chicago v. of bridge. Coster v. Albauy, 43 N. Burcky, 158 111. 103, 42 N. E. 178; Y. 399. Meyer v. Teutopolis, 131 III. 552; 4i See §§ 641-644. Polak V. Sau Francisco Orphan Asy- *- Commonwealth v. Davis, 162 lum, 48 Cal. 490. Case of removal Mass. 510. 43 See § 174 and §§ 641-644, infra. 152 PUBLIC OEDER AND COMFORT. §168 by the public only for its use as such, and that the proprietary right of the organised community is therefore qualified by an easement of use in favor of the unorganised public of which every individual is a representative. § 168. Extent of common use.— The extent of public power is therefore determined by the nature of the right of common use, and by the obvious conditions which publicity imposes on the acts of the individual. The common use of the street consists in passing along the street for purpose of business or pleasure, on foot or by ve- hicles. It does not include the use of the street as a play- ground,-*^ or as a place on which animals may stray.^^ It is especially to be noticed that the use of private vehicles constitutes a common right, not subject to police restriction ex- cept for cause. A license may be exacted for vehicles as a revenue measure, where there is no constitutional limitation of the taxing power in this respect, and may be imposed by local authority, where the pov.'er has been duly delegated;'*^ or as a police measure where the vehicle is by reason of weight apt In injure the roadl)ed ;"*" but except for purposes of safety the mere power to regulate the use of the streets will not authorise a i-estrietion by the imposition of n lieense fee ui)on the use of the bicycle,"'*' or of other priv;ite veliicles."''' "Illinois City Aft V., Sec. 1, No. 92. «8ee note .39 L. K. A. tl47. Wlicrc animulH are fouml niniiiniij ;it lar;^<' the law may authorise their seizure, and, ujfon proper notice, their sale. IjK'k of notice was lielil fatal in New York, Koekwell v. Ncarinjj, .35 N. V. l»ut tlie i|<'fe<'t in the law was •.iii.-.c<|uently cured and the act the,' u|dn'ld. Canijihcll v. I-^vans, 4^) N. Y. 356; Cook V. (ir.'KK, 40 N. V. t.iit, where it is said tlial it is iniMiatcri.-il wliither tho seizure is for a public er private wronj;. In .Mic)ii(;an it w:is upwially said that the strayinjj of lals eoiistitiilcd a puldic uricv . ■. Cnnipau v. I^angley, TUt Mich. 451, 83 Am. Kej.. 114, Compare Donovan v. VieksluirR, 2ii Miss. 1347, I-'', "ifh Andcrdon v. Locke, 64 Aliss. 283, and see Creer v. Down- ey (Ariz.), (i1 T>. R. A. 408. '" Tondinsiiii \.. Indianapolis, 144 In. I. 142, 36 L. R. A. 413; Terre Haute V. Kersey, l.lit lud. ;?()(), (5 1 X. !•:. 4(iit; Ft. Smith v. Scruggs, 7(/ Ark. 549, 58 L. R. A. 921, 69 S. W . <)79. <- 1629 19 Rymer's Focdera, 130, provision against excessive wciglit of cr.rriages ou |)ul)lic roads. (i;irlsidi' v. Kast St. Louis, 4:5 III. 47, !S(i7; Nagle V. Aug\ista, 5 (ia. 541) ; h'c Vandiue, 6 Pick. 187, 1828; such ordinances must not impose umluly hurdensome re<|uirements, Stato v. Uohart. S,3 Minn, •jr.7, .'"i 4 I,. U. A. '.14 7. ••« Chicago V. Collitis. 175 111. 445. 51 N. 10. 907, 49 L. K. A. 40.H. '"Brooklyn v. Noiline, 2(! Hun § 169 COMMON USE OF STEEETS. I53 The right to pass includes the right to carry goods ; but while the removing of a house through the street without unneces- sary obstruction and delay has been held not to be a nuisance per se,^^ this cannot be claimed as a common right; for it amounts, for the time being, to an exclusive occupation of the street.^^ § 169. Obstruction and disorderly conduct.— The enjoyment of the common public use of streets requires freedom from ob- struction, and abstaining from obstructing others is therefore a limitation upon every one's right. An actual obstruction is a common nuisance, and in order to support an indictment, it must be charged and shown that traffic was impeded.^^ jf ^^g power of municipal regulation is to have any additional value, it must extend to the prohibition of those things that have a tendency to create obstruction, especially the stopping of ve- hicles, or of numbers of persons, for an undue length of time. Thus while the stopping of a cart for an hour may not be a nuisance in every case, it might be prohibited by ordinance.^ ^ The power must be reasonably exercised, and it has been hold that one person cannot be forbidden to stop on the sidewalk for a reasonable length of time.^^ The reasonable exercise of the power is of special importance because there are many cus- tomary practices which have a slight tendency to obstruct, as. e. g., by attracting crowds, which yet serve valuable business and social interests. Thus while an effigy in a window causing the collection of great crowds was held to be a common nui- sance,^^ an ordinance forbidding the common display of goods in store windows would be unreasonable. The German Imperial Court while holding that picketing was not criminal intimated that it could be dealt with as a form of obstruction under the common police power for the protection of public order, and in England book-making on the streets is likewise sought to be 512; Ex parte Gregory, 20 Tex. App. obstruction of highways, a munieipal 210; Joyce v. East St. Louis, 77 111. ordinance may forbid the construc- 156. tion or continued use of gates open- so Graves V. Shattuck, 35 N. H. ing or smnging out upon the street 257, 1857. or sidewalk. Town of Rosedale v. r.i Wilson v. Eureka City, 173 U. Hanner, 157 Tnd. 390, 61 N. E. 792. S. 32, 1899. r,4 state v. Hunter, 106 N. C. 796, 52 State V. Edens, 85 N. C. 522. 8 L. E. A. 529. 53 State V. Edens, 85 N. C. 522. r-n k. v. Carlisle, 6 C. & P. 636, So where the statute punishes the 1834. l^^ PUBLIC ORDER AM) COMFORT. § 1G9 restrained on the ground of obstruction.^*^ To constitute a com- mon law oifense. it seems there must be actual obstruction amounting to a nuisance, while under the police power within reasonable limits practices may be forbidtlen which merely tend to cause obstruction. The Supreme Court of Massachusetts has held that the municipality may forbid persons with placards on their backs to parade the streets."" This practice rarely constitutes an actual obstruction and the tendency to attract a crowd is slight; yet the use of the street for the })urpose of attracting attention cannot be said to be a common riglit ; and its prohibition to Ix^ invalid must be shown to be an unreasonable exercise of nuniicii)al discretion. The common right to use the streets is subject to manifold restrictions in the interest of good order, upon the principle tliat publicity imposes greater restraints upon individual con- duct than privacy, and that the ordinary standards of public conduct require some regard for other persons' feelings. It is unnecessary to enumerate the various possible acts of inde- cency, breach of the peace and quiet, and molestation, that are thus prohibited either by ordinance or by the general crim- inal law.''^ Till' i)i-aetice of begging may be prohibited on this pi'inciplt'. 5i 170. Use of rivers. — I'rinciples very similar to those gov- ♦•rning the use of streets apply to rivers. The right to pass on tlif river by boat is a common right, but the anchoring or mooring of vessels is ;in incident to it only while not carried to ;iii excessive lenglli of time, iiiid tlic time may i)e limited by ordinance.-'''-' Tlierc is no right to use the i-ivei- for lloating warehouses,"" and a license may be exacted for residing or transacting business on boats. "Wlu-n one takes up his home on a highway his very right oT occupan(;y rests on the Avill of the s(»vereignly. and his being there at all except as he may use it in common with the public and in pursuit of the pur- [KiHcH of its dedication de|)ends on the will of the goveru- m.nt."*" f-n H«'|Mirl of H|ifH-ial ('omtniHMidii Hfi; (it.iixl li'Mjiiils v. Wiilinins, IIU of HouHc nf Lc.rih (HI lU'ttinjj, .Inly, Midi. L'I7, 'M\ L. IC. A. i;i7. >'>02. r.i. Tciinic v. I,..(", H Mart, N, S. f'T Commonwfiiltb v. Mc.Cafrcrty, .'>48, Mr, .Mbmi. .384, no Hurt. v. Mayor of Albany, .! ^•HrfHoii v. Commonwcalfli, KH Ky. 1:85, 40 S. W. 920. § 171 SPECIAL STREET USES. I55 § 171. Right to use parks,''^ public buildings, etc.— Parks are established not for traffic or communication, but for recrea- tion of such kind as may be determined by the proper authori- ties. Hence the right to use paries is subject to greater restric- tion than the right to use the streets, and the conduct of the individual while in the park may be subjected to rules which reasonably tend to its better preservation for the purposes for which it is established. Upon this principle it has been held that vehicles for conveying merchandise may be excluded from a boulevard,^^ the reasonableness of such a rule according to the circumstances of each case being matter of judicial control. Public buildings erected for business, recreation, or instruc- tion are subject to such proprietary control as is not incon- sistent with the constitutional right of the citizen to participate in the enjoyment of institutions supported by public taxation."-* SPECIAL STREET USES. §§ 172-174. § 172. Special uses by abutters.— Custom concedes to the business and domestic requirements of the abutting owner cer- tain uses of the street in addition to the mere right of passage and access : he may have a carriage wait in front of his house, he may load and unload goods on the sidewalk, and he may be permitted while building to deposit a pile of brick in the street.^ These slight and temporary technical obstructions are to be distinguished from encroachments which involve a proprietary occupation of the street.^ They are convenient and sometimes necessary and where they do not incommode the public mate- rially an ordinance prohibiting them might well be declared 62 Chicago Revised Code 1897, States were subject to state regii- § 1373 and following. lation. The act was upheld as a '••3Brodbine v. Inhabitants of Re- police regulation upon the ground vere (Mass.), 66 N. E. 607; Gut- that the proximity of large herds of tery v. Glenn, 201 111. 275, 66 N. sheep was offensive to the senses. E. 305. Sifers v. Johnson, 65 Pac. 709, 54 L. G4A statute of Idaho (Revised R. A. 785; Sweet v. Ballentine, 69 Statutes 1887, §1210) forbidding Pac. 995. The act has, however, the grazing or herding of sheep with- since been modified so as to forbid in two miles of a dwelling house grazing, etc., only on the land and seems to have been intended to apply possessory claims of others. Revision to the public domain, and might have 1901, § 689. been sustained without difficulty if 1 Dillon, Section 730. the use of public lands of the United - §§ 162, 163, supra. J56 PUBLIC OKDER AND COMFORT. § 173 unreasonable. As a matter of fact such practices are univer- sally allowed.^ They become obstructions only when carried to imreasonable lengths and may then be treated as nuisances, so where a bridge is stretched from a wagon to a house, and remains there for hours.-* The power to regulate the use of streets should be held to authorise the enactment of ordinances defining the manner in which such special privileges are to be exercised, and to require, if deemed expedient, a permit for temporary exceptional uses, such as piling brick on the street,^ and it would seem reasonable to prohibit loading and unload- ing on the street entirely, where an alley exists that can be used for that purpose. i; 173. Use for profit.— It is not one of the purposes for which streets are established, to afford a convenient place on which to expose merchandise for sale. Auction sales as well as ped- dling on the streets may, therefore, be made dependent on luMMise^' or entirely prohibited.'^ But in the absence of special prohibition such practices must be actual nuisances or obstruc- tions to be unlawful. 'I'll!' carrying of goods and persons for hire likewise involves a profitable use of highways. Such use is conformable to the general purposes of the street, and is advantageous and neces- sary to Ihe comnumity; yet it is in a sense a special use and, therefore, cannot be claimed as a matter of absolute right, where the business requires an exclusive privilege like the lay- ing of tracks, or where it carries with it an occupation of street space which may tend toward obstruction, as in the case of cab stands. It is, however, also not unconunon tliat other common carriers I'oi- hire asking no special privileges, like onniibus drivers and draymen, are i-e(iuinM| to lake out a license as a prcre(|uisile lo ihe right to do l)nsincss. The validity of such rc(|uircincnt is generally acci|)teil, and it may be justilied on the ground that these occui)ations subject the street to special wear and tear, and tnay tend to ol)stru(^tion of traffic or acci- d«;ntH uhen carried on by incompetent persons. •■>rV)mm<)ii\vc.iltli V. f'jiHHinoro, 1 S. ■• .McCarlliy v. (.'hicapo, 5.^ 111. 38. & K. 2\7; HkiilH fn.m tniik to HtepH, •> Kc Xinhfinjralp, II Pick. 1(5.8. WoIhIi v. Wilm>n. 101 N. Y. 2.'54, 7 (lomiiKiinvcnltli v. I'enfoii, 1.39 pinlform for iinloiKliiiK, Murphy v. Muhh. 1!»5; White v. Kent, 11 Oh. St. I^'KKcft. KM N. Y. I'Jl, r,H N. K. 42. 550. «r':,ll;n,...n v. (iilm.'in, 107 N. Y. 360. § 174 PARADES AND MEETINGS. I57 § 174. Use for parades, processions, public addresses and meetings. — There are four classes of decisions bearing upon this subject: first, those which hold that an orderly addr(^ss or parade, not in fact obstructing traffic, is not a nuisance;^ this seems to be the general doctrine and means that the use of streets for this purpose, though subject to the police power, is not intrinsically unlawful ; second, those which hold an ob- structive or noisy gathering to be a nuisance ;" third, those which hold that the right to hold a meeting or parade cannot be made to depend upon an unregulated official discretion;^" and fourth, those which hold that it may be made to depend upon such discretion.ii The Supreme Court of Massachusetts admits the legality of an unrestricted discretion in allowing or disallowing public parades and addresses on the ground that it is within the power of the state to prohibit them entirely, and hence also to permit them on such terms as it chooses. On the other hand the decisions holding an unrestricted discretion to be illegal, do not by necessary implication support an unqualified right to use public places for gatherings or demonstrations. To hold that a particular gathering is not a nuisance is not inconsistent with the recognition of the power of regulation, and to hold that it is, is not inconsistent with the denial of the power of absolute prohibition. It cannot be conceded that the state controls streets as the private owner controls his house. Yet parading and holding meetings are not common street uses, nor are they uses for which a park is established. The entire prohibition of public meetings in parks seems to be open to no constitutional objec- tion. The question of the power to prohibit parades on streets entirely is not apt to arise. The practical question is whether parades are subject to restraint and regulation, and consider- ing the fact that, indiscriminately allowed and uncontrolled, they may easily lead to confusion and breaches of the peace, it can hardly be denied that they are so subject. The law upon 8 state V. Hughes, 72 N. C. 25 ; n Commonwealth v. Davis, 162 Fairbanks v. Kerr, 70 Pa. 86. Mass. 510 ; Davis v. Massachusetts, 9 Chariton V. Summons, 87 la. 226. 167 U. S. 43; Commonwealth v. 10 Re Frazee, 63 Mich. 396; An- Plaisted, 148 Mass. 375; Re Flaher- derson v. Wellington, 40 Kan. 173; ty, 105 Cal. 558. Chicago V. Trotter, 136 111. 430. 258 PUBLIC ORDEE AND COMFORT. ^ 175 this subject will be fully discussed iu couuection with the principle of equality.^ - POWER OVER PLACES OF PUBLIC RESORT IN PRIVATE OWNERSHIP. i; 175.— Places to which people come in numbers and indis- criminately by invitation or license of the owner and generally for his profit: such as public conveyances, railroad depots, wharves, inns, restaurants and theatres, may be said to be affected with a public interest. The police poAver is usually exercised only for safety and health ; but sometimes also for public comfort, so in directing the heating of cars or depots, restricting the number of passengers to be carried in a car, regulating the landing of vessels at wharves ;'•• and — an ex- treme instance — reciuiring women attending theatrical per- formances to remove their hats.^^ The protection of meetings, especially religious meetings, from disturbance, which goes to the extent of prohibiting peddling within a prescribed distance from grounds where camp meetings are being held, falls under this head.'^ UFFEN«IVENESS Afci A SUBJECT OF POLICE CONTROL. §§ 176-]7it. ii 176. Offensiveness as a nuisance. — The law relating to nuisances dovs not always make a sharp tlistinction between that which is ofl'ensive and that Avhich is unwholesome. The two l'-'55 <541-«i»-J, infid. -IK), S S. 10. '.Mill. It imisl l.c ,l,>iil)t.'(l >^ Vainlorliill v. AiIjimih, 7 Cnwcn wliotlior tlic (IccisioiiH in ho fjir as 34S>. tlicy .siiHtiiin llio power given to llio '♦('hicuKo H«'viHC(| ('(((Ic, Si'fH. n)jiiiJijj;f'rH of the iiicctinj^s to license 1L'51-125H, iin(); State exenptinj,' ownerH of lands in the V. Cnte, r>H N. H. 'J40; Htntc v. Itead, ncijrhhorhood of the cainj) jneeting, I'J K. f, HT; MyepH v. Baker, I'JO in Coinw. v. Bacon, K? Hush. L'lO. III. 007; Hfato V. Htovall, lOn \. C. c 177 OFFENSIVENESS. 159 on that ground be regarded as detrimental to health,"' Proof of danger to health may be required where statutory authority IS confined to guarding against such danger,'" but boards of health are frequently given authority over offensive conditions in general, and the common law idea of a nuisance is satisfied by mere offensiveness.^'^ Where the offensive condition affects the community at large, or a portion of it, it becomes indictable as a common or public nuisance and may be abated as such.^'-* The offense of public nuisance is recognised in our criminal codes, and the general law is not necessarily superseded by special statutes dealing with certain aspects of dangerous industries and regu- lating them.2o It is no defense to the charge of a nuisance that the oft'ensive industry is useful, or conducted with great care,2i qj. that it is located in a convenient or appropriate place, or that it was established when the neighborhood was unset- tled, and that the complaining public "has come to the nuisance. ' '^^ The status of established industries will be discussed in connection with the subject of vested rights.^s § 177. Municipal power over offensive establishments.— The public comfort being thus placed under the strong protec- tion of the criminal law, positive police regulations are gener- ally left to local legislation. Municipal charters frequently give power to prohibit noxious establishments in cities alto- gether, or to direct their location or to regulate them. In Massachusetts the law allows boards of health to forbid offensive trades within the limits of a town, or particular por- tions thereof, or to assign places for their exercise, and such assignments may be revoked.^-* Provision is also made for 16 People V. Detroit White Lead Eumford Chemical Works, 16 Gray Works, 82 Mich. 471. -31. 17 State V. Neidt (N. J. Ch.), 19 21 state v. Wilson, 43 N. H. 415. Atl. 318. " Commonwealth v. Upton, 6 Gray 18 Commonwealth v. Perry, 139 473; People v. Detroit White Leail Mass. 198; Bishop Auckland Local Works, 82 Mich. 471; Ashbrook ^v. Board v. Bishop Auckland Iron and Commonwealth, 1 Bush. Ky. 139; Steel Co. Ltd., 10 Q. B. D. 138. State v. Board of Health of St. 19 Bishop New Grim. Law § 1138- louis, 16 Uo. App. 8. 1143, § 1079-1082. -' §§ 529-533, 565, infra. 20 Commonwealth v. Kidder, 107 -'4 Kev. L. ch. 75, Sec. 91. Mass. 188, 1871; Commonwealth v. 160 PUBLIC OEDER AND COMFORT. § 17S revocation by judicial proceedings where upon complaint it is found that the place so assigned has become a nuisance.-'' The order of prohibition of the board of health is subject to appeal to the Superior Court for a jury.^'' The consent of municipal or local authorities is necessary to the erection of slaughtering or rendering establishments, or noxious or offensive trades or occupations.-' Licenses run for only one year.--'' Like other municipal powers, that over nuisances must be reasonably exercised, and courts have frequently annulled op- pressive ordinances. In Missouri an ordinance of the City of St. Louis declaring the emission, for however brief a period and however unavoidable, of dense smoke, to be a nuisance, was held to be unreasonable and void,-'' but similar smoke or- dinances have been upheld in Illinois, INIichigan, and ]\Iinne- sota.-*" In ]\Ioses v. United States^^^ the prohibition was declared by an act of Congress, and the defendant was not al- lowed to prove that he had used the best known smoke consum- ing appliances, the court holding that Congress may have contemplated the use of smokeless fuel. Tn many ])arts of the country, the recjuirement, whether mnnicipal or statutory, to use smokeless fuel, would be plainly unreasonable. J; 178. Reasonableness of standards.— The oft'ensiveness must as a rule consist in actual jihysical discomfort, or in a viola- tion of the sense of decency; mere undesirableness by reason of social or other prejudices is not sufficient, not even if it leads to ;i r owners. Frazer v. Chi- .jiijiliceM diHHentin^. cajjo, 1,S() 111. 4H(), .O? N. K. luri.-). ■>' WJ A|.p. Chh. n. C. 4L'8. r.O L. 1.'. la Lake View v. T.etz. tl III. si ; A. ''3-. Mnsjjrove v. SI. I,cinis ('Iniicli, ID "'The wime principle generally ap- La. Ann. llll ; New Orle.ins v. St. pli<» to a imiHame considered as an Lonis I'hnnli, IJ La. Ann, 244. ^179 OFFENSIVENESS. 161 It is certain, moreover, that in defininjo: nuisances no stand- ards may be established which discriminate against tlie poor. The City of Bay St. Louis in Mississippi, much freciuented as a seaside resort, desired to protect the owners of residences fronting on a shell road which was separated from the sea by a narrow strip of land, against cheap structures on that strip. Under special statutory authority an ordinance was therefore enacted forbidding the erection of shanties, etc., which would obstruct the view of the sea, and intercept the sea breezes. The statute and the ordinance described these erections as nuisances ; but it was held that the prohibition of a use of property adapted to the needs of the poorer classes was an unconstitutional taking of property.^^ § 179. Assignment to specified districts. •^'^— The assignment of noxious establishments to designated limits is closely re- lated to their exclusion from specified districts, and would be derived from the power to regulate and direct their location. It is, however, not the practice to exercise the power in this form; the closest approximation to it is found in excluding them from all parts of the city excepting some particular portion. This may leave their status in that portion to the common law. In the most notable case bearing upon this subject,^*^ an ordinance of the City of New Orleans prohibited lewd women from living anywhere without the limits of two particularly described districts, but added that this should not be held to authorise such a woman to live in any portion of the city. The Supreme Court, however, in upholding the ordi- nance as not violating any federal right broadly sanctions this kind of discrimination : ' ' The power to prescribe a limitation carries with it the power to discriminate against one citi/.en and in favor of another. Some must sufit'er by the establish- ment of any territorial boundaries." "If the power to pre- scribe territorial limits exists, the courts cannot say that the limits shall be other than those the legislative body prescribes. If these limits hurt the present plaintiffs in error, other limits would hurt others. But clearly the inquiry as to the reason- ableness or propriety of the limits is a matter for legislative consideration, and cannot become the basis of judicial action. 34 Quintini v. Bay St. Louis, 64 35 See also, §§ 245, 689. Miss. 483. 3cL'Hote v. New Orleans, 51 La, Ann. 93, 177 U. S. 587. 162 PUBLIC ORDER AND COMFORT. § 180 The ordinance is an attempt to protect a part of the citizens from the unpleasant consequences of such neighbors. Because the legislative body is "unable to protect all, must it be denied the power to protect any? "3" This statement will hardly command general assent, and not being called for bj' the circumstances of the case, need not be accepted as authoritative. It is sufficient that in the case before the court the owners in the district were not deprived of any remedy civil or criminal Avhicli they had before ; and the ordinance expressly disclaimed being a license. On general principles an ordinance must not be partial or oppressive, and it is difficult to imagine greater possibilities of partiality and oppressiveness than in the exercise of an uncontrolled power to determine districts for noxious establishments. I\Ioreover it is well established that a nuisance cannot be legalised which is a violation of a private right except through the power of eminent domain.'''* An ordinance withdrawing merely the liability to prosecution, might be legally and practically un- objectionable.-'" So far as private rights are concerned, it would leave owners to their remedy by damages and injunc- tion, if injury could be shown ; but in the case of the selection of a district already given ovov to otfensive establishments tlii'i-r would ;is ;i riilr be no ground for ])rivate complaint, an iiijiiiK'tion could be refused,""* and the damages would be nom- inal. An ordinance assigning limits might thus practically accomplish its purpose without injustice or violation of legal riirhts. rxsiciiTi.iXKss. §s is()-is.s. § 180. Limiting the height of buildings on public parks.— The various locnis of oircMsivcness over which the police power is cxi'rciscd . .iHh V. Tiniiifdril f'hcmiral Wc.rkw, 16 (Jrny, Ij.ll. § 180 UNSIGHTLINESS. 163 The case of Attorney General v. Williams^^ deals with this question, although not directly from the point of view of tin- police power. An act of Massachusetts of 1898 limited build- ings in the neighborhood of Copley Square, Boston, to a certain height, providing at the same time for the payment of com- pensation to those property owners who should suffer by the limitation. The act was uphekl as an exercise of the power of eminent domain, and the principal question discussed by the court was whether the use could be regarded as public. "It is argued by the defendants that the legislature in passing the statute was seeking to preserve the architectural symmetry of Copley Square. If this is a fact, and if the statute is merely for the benefit of individual property owners, the purpose does not justify the taking of a right in land against .the will of the owner. But if the legislature for the benefit of the public was seeking to promote the beauty and attractiveness of a public park in the capital of the commonwealth, and to prevent un- reasonable encroachments upon the light and air which it had previously received, we cannot say that the law-making power might not determine that this was a matter of such public interest as to call for an expenditure of public money, and to justify the taking of private property." The court, how- ever, also suggests another theory for the exercise of such a power. "In view of the kind of buildings erected on the streets about Copley Square, and the use to which some of these build- ings are put, it would be hard to say that this statute might not have been passed in the exercise of the police power, as other statutes regulating the erection of buildings in cities are commonly passed." A later statute of Massachusetts^ » limited the height of buildings on a small tract west of the State House to 70 feet and allowed petitions for the assessment of damages in so far as the act or proceedings to enforce it might deprive the petitioners of rights existing under the constitution. It was contended on the part of the commonwealth that the act was an exercise of the police power, and in so far as the limitation was reasonable no rights under the constitution were impaired. The court however held that Avithout express statutory pro- 42 174 Mass. 476, 55 N. E. 77, ^3 1899 ch. 457. 1899; Williams v. Parker, 188 U. S. 491, 1903. 11 IQ^ PUBLIC ORDER AND COMFORT. § 181 vision to that effect it could not be assumed to have been the legislative will and jiidgnieut that property rights should be restricted without compensation. ''The objection to the in- terpretation is that it supposes the legislature without clear words to have used the police power in one of its extreme man- ifestations for a purpose which although conceded to be public is a purpose which may be described as a luxury rather than necessity, * * * So that to sustain the restriction to its whole extent under the police power would be a startling ad- vance upon anything heretofore done.""*'* This decision shows after all considerable hesitation and doubt as to whether the police power can be validly exercised without compensation for mere aestlietie interests.-*'^ § 181. Building regulations not for purely aesthetic pur- poses.— General inuiiic'ipal liuiltling regulations in this country are enacted exclusively in the interest of health or safety. An ordinance of the City of Baltimore providing for the refusal of building permits unless the size, general character and ap- pearance of the building or buildings to be erected will conform to the general character of the buildings previously erected in the same locality, and will not in any way tend to depreciate tho value of surrounding improved and unimproved property, was held void as not authorised by the city's charter powers, tlie court leaving the question open whether such power can be conferred upon a city at all.-*" In America buildings have never been controlled liy law with a view to securing beauty or symmetry, whereas such regulations are not unknown in Kurnprim cities. It may be conceded that the restrictions im- posed rarely inflict aclti.il ose oloHcly related to th.-se |)ul)lic improvements and lieiicc suffi- cient to .justify the exercise of the power of emiii.'iil domain. «♦ I'nrkor v. f^om., 178 Mhhh. 1!M», <" RoHfock v. RumH, « N. F-:. n.Ti. 5.. ah. mr,. "Heo 5 r,11. infrn. § 182 UNSIGHTLJNESS. ^^5 The purpose of making a parkway attractive does not justify a requirement that owners place their houses forty feet back of the line of the boulevard,*" nor the prohibition of business avocations on property fronting thereon.^^ Such requirement and prohibition might be sustained upon payment of compensa- tion, for space and quiet may be regarded as auxiliary to the sanitary purposes of a park system which justify the exercise of the power of eminent domain. But if the purpose were purely aesthetic, the impairment of property rights, even upon payment of compensation, would not pass unchallenged. The city of Bridgeport in Connecticut attempted to prohibit the erection of buildings on either side of a new bridge, that might mar the sightliness of the structure. The purpose was proposed to be accomplished by the establishment of harbor lines, with- out payment of compensation, a measure which the supreme court of the state held to be both in violation of vested rights and in contravention of the city charter. The court, however, also took occasion to condemn the purpose as one "which no one would claim, to be a public one within the meaning of the constitution. "■*'^ The point received no further discussion, and, as will be noted, it was not essential to the decision of the case. It is therefore not necessary to accept this view as final and conclusive.^** § 182. Unsightly advertisements.— Municipal ordinances against bill boards used for advertising purposes, are usually placed on grounds of public safety, and are therefore restricted to boards exceeding a certain height and placed within a cer- tain distance from the sidewalk. Whether they are upheld *" St. Louis V. Hill, 116 Mo. 527. held liable to make compensation. 48 St. Louis V. Dorr, 145 Mo. 466. (Imperial Court .Ian. 9, 1SS2. Gru- 40Farist Steel Co. v. Bridgeport, chot, Vol. 26, p. 935.) Regulations 60 Conn. 278, 1891. , intended to maintain the suburban 50 The Prussian Code (1, 8 § 66) character of certain localities have provides that no building shall be been upheld in Prussia, in the ab- erected or altered so as to prejudice sence of statute, as sanitary meas- or endanger the public or so as to ures within the jurisdiction of the disfigure cities and public places, police authorities. (Kamptz Ober- Where a building permit was refused verwaltungsgericht IV., 1, p. 388. in order to save the view of a public Decision of Jan. 13, 1894.) In other monument from obstruction, the German states they are authorized state as owner of the monument was by law. 166 PUBLIC OEDEK AND COMFORT. §182 as safet.y measures.^ or held to be unreasonable and void as not being: called for by any real danger,- they do not claim to restrain on the ground of unsightliness, and no attempt has been made to deal with unsightly advertisements placed on houses or on conspicuous natural objects or monuments. ^ It is generally assumed that the prohibition of unsightly advertisements (provided they are not indecent), is entirely beyond the police power, and an unconstitutional interference with the rights of property. Probably, however, this is not true. It is conceded that the police power is adequate to re- strain oft"ensive noises and odors. A similar protection to the eye, it is conceived, would not establish a new principle, but carry a recognised principle to further applications. In the matter of offensiveness, the line between a constitutional and an unconstitutional exercise of the police power must necessa- rily be determined by differences of degree.-* It is true that ugliness is not as offensive as noise or stench. But on the other hand offensive manufactures are useful, and the offense unin- tentional and inevitable, whereas in the case of an advertise- ment the owner claims the right to obtrude upon the public an offensive sight which they do not want, and Avhich but for this undesired obtrusion would not be of tlu> slightest value to him."' 1 Rochester v. West, 164 N. Y. 510, 58 N. E. 073. 2 Crawford v. Topcka, ")] Kan. 756, L'O L. ]{. A. 692. •■' In Ciermany a police ordinance ajjaiiiHt coverinj^ roofs with advcr- tiseinotitH was su.stained on tiic (ground tliat such advertisements, by cansin^; people to stop, distiirli traf- fic. « Rideotit V. Knox, 148 Mass. .368. s However, oven if the power to roKtriiin unsif^htly Bigns he romcded, the manner of its exercise would jjive riw to constitutional dillicuities. A I'niwiinn Htatute of 1902 provides that the competent police authorities shall have ti'>wrdcr to jircviMit the ,Mj,hh. I{,,v. LavvH, eh. !I8. § 185 SUNDAY REST. l^jy ber of states.^ 1 Some states forbid only the keeping open of shops, stores and places of business,i^ or only public amuse- ments.i-'^ Colorado and Illinois forbid the disturbinj^r of the peace and good order of society by labor or amusement, and New Hampshire likewise forbids only work to the disturb- ance of others. California, Idaho and Arizona have no Sunday legislation. § 185. Protection of customary quiet.— It is well established that the character of Sunday legislation is secular and not religious, and under the principle of separation of church and state it could not be otherwise.^-* The enforced abstention from work has been held to be justified by the experience, that periods of rest from ordinary pursuits are requisite to the moral and physical well-being of the people.^ •'^ This argument logically implies a recognition of the legislative power over periods of work and of rest in general — a power which many courts would perhaps be unwilling to concede.^^ When we look however upon Sunday rest as an established social institution, the legislation regarding it may be explained upon a different principle. It may then be looked upon as a measure for the protection of the good order and comfort of the community established and recognised by common custom and convention. As under natural conditions public order has a different meaning in the night time and in the day time, so it has under social conventions a different meaning on Sundays and weekdays. 11 Alabama, Arkansas, District of day laws were held to be uncoustitu- Columbia, Kansas, Kentucky, Mis- tional. This decision was subse- sissippi, Missouri, Ehode Island, Ten- quently overruled (ex parte Andrews, nessee, Texas, Virginia and "West 18 Cal. 678), but in 1883 the Sunday Virginia. legislation of California was re- 12 Alabama, Louisiana, Oregon, pealed. Washington, Wyoming. i« An analogous exercise of power 13 Colorado, Mississippi, Montana, would especially be found in the re- Nevada, Texas, Utah and Washing- quirement of closing places of busi- ton. ness at and after a stated hour of tho 14 State V. Orleans Judge, 39 La. evening. As such requirements where Ann. 132; Specht v. Commonwealth, they exist proceed as a rule from o Pa. St. 312. municipal authorities and not from 15 State V. Powell, 58 Ohio St. 324, the legislature, their validity depends 1896. In an early California case in part also upon the extent of dele- (ex parte Newman, 9 Cal. 502) Sun- gation of power to the municipality. 170 PUBLIC ORDER AND COMFORT. § 186 j 186. Prohibition of business. — The iiuostiou tlieu arises how far the enforcement of Sunday rest, as a measure of pro- tection of customary peace and quiet, may go. The common law was adequate to deal with disturbances which amounted to nuisances, and the laws of Illinois and Colorado remain within the like narrow compass. Noisy trades and amusements would fall especially under the ban of these laws. The pro- hibition of keeping- open stores and shops, and places of public amusement goes one step further, but may also be justified as removing a constant invitation and temptation to the public to be drawn into the common traffic and activities of work days. The prohibition of avocations and business not soliciting pub- lic patronage can be justified only l\y the consideration that the prevention of competition is necessary to secure cessation of work to those desiring to rest, that such cessation cannot be maintained unless it is uniform.^' The argument applies with special strength to the protection of employees. Where the business does not require the services of others, its prohibition must be regarded as an extreme measure. It is hardly enforce- able with regai'd to purely private and individual labor, but the state can and does withhold remedies upon contracts entered into on Sunday.'^ As in doing so it does not exercise any compulsion, lliis jiolicy is perluips not open to constitutional objection, hut it can accomplish its purpose only by encourag- ing breach of f;iith and gross injustice. The prohibition of private recreation by ganu's or other annisements not disturb- ing the j)ublic is not only practically beyond the power of the state, but cannot be justified upon ;in>- legitimate consideration ,\' aulumai jc sidt inacliincs fiirnisli- in North (Jaroliim, Htalo v. Hay, 4L' inj; j^noiis. H. K. mo. I'rnviHioiiH for cloHiriK »« Tlio nil<> ,>f the MassaclmscltH plarim where lif|uor iH hoIiI involve courtH (alno adopted in Maim-) (hat difTurcnt conmderationH, a perHon travelling on Siinda.v ( an- " That the danj^er of eoinpetilion not recover for injury snHtainerj juHtifleti nwlrainf, appearH most while (ravelling, has Itcci; abrogated clearly from the (ierniaii practice of by Htafnfo. forliiddiric mi Sundays the operation § 186 SUNDAY BEST. Xjl lative control.^^ Sunday laws should certainly wherever pos- sible be so construed as not to affect any pursuit which is neither competitivi; nor carried on in public. 2" 19 People V. Moses, 65 Hun, 161. so People v. Dennin, 35 Hun 3:^7; Rucker v. People, 67 Miss. 328. CHAPTER VII. PUBLIC MORALS. ^ 187. In general.— The exercise of the police power for the protection oi" public morals proceeds upon a number of g:rotnids: that vice is intrinsically evil and has no right to existence or tok^ration ; that it impairs the strength of the com- munity ; that its practice is of evil example and tends to corrupt others; and that its manifestation is offensive to the public and violates the implied conditions of community life whereby each is bound not to outrage in an offensive manner prevailing public sentiment. These grounds are less urgent than those underlying the measures for the protection of the physical wel- fare of the community, and the exercise of the police power in this direction means a greater assertion of governmental au- thority than the protection of peace, safety and order. The interference of the state is made more plausible and acceptable by taking the view that acts and conditions which primarily violate only morality, are apt, in their more remote and indirect consequences, to produce i)hysical disorder and crime, and thus to endanger the public safety. The practices with which legislation is chiefly concerned are: gaiiililing. nj,dy rclle<'tH pnblic senti- civil liberty affords no >i;iiaranty of inenf and |»r<'jiidico. It is (lie trib- tolerance for practices c(mcei\('c| to lite wliicli the or);aniMed <'oininnnity Ix' iiiniioral, especially wlicrc the im- [lavH to virtne, and the trilnite is will- nidrality bears on social as distin- injjly |»aid so lonj; as it invt)!ves ^iiisiied from ))nsiness and |iolitical nothing; more tiuin the ena<'tnient of rcdations; on the contra I'v, the en- n Htfitnte. The statnti' i)ooks fre- li;,diteiied deinncralic ciiiiiiiiunity is f|nenfly reprcHent a stand.'inl of apt to be iiuire intolerant than that morality far in advance (»f ai'lual whicdi is despotically j^overiieos- executive inithority ni;iy be very radi- § 188 GAMES OF CHANCE. I73 A. GAMBLING. § 188. Justification of exercise of police power.— TIk^ evils of iiambliiis" li^^ i)artly in the possibility of impoverishment through wasteful and unprofitable expenditure, partly in the demoralising effect of gain made without effort, and in the habit, which it fosters, of relying upon chance instead of upon labor for acquiring wealth. Its great attractiveness makes the evil a matter of public concern. The constitutionality of measures against gambling is as a matter of principle not (jues- tioned ; yet those who assert that all forms of paternalism are contrary to American constitutional liberty must admit that anti-gambling legislation is paternal legislation, protecting the individual from temptation and restraining him from acts, which, while hurtful to him, are not immediately offensive to others, and while of evil example, do not in any way affect any one else's liberty of action. § 189. Games for pastime and recreation.— The usual objec- tions to gambling have hardly any application where the ob- ject is not gain, but recreation and pastime, and where there are no valuable stakes. It has been said that such playing is not gaming at all in the legal sense of the term.- American statutes invariably speak of gaming or playing for money or other property or valuable things, and do not concern them- selves with gaming for mere pastime. ^ GAMES OF CHANCE. §§ 190-191. § 190. Legislation.— At common law, the mere playing of a game of chance, of whatever kind, was not regarded as an offense.^ The playing of servants and artificers was restricted by Stat. 33 H. VIII. ch. 9. Deceitful gaming, which is a species of fraud rather than of gambling, was punished by stat. lU t-al in its legislative measures which therefore, full of interest and in- remain dead letters, while a govern- stniction. ment accustomed to a strict enforce- - Reg. v. Ashton, 1 E. & B. l-'SO. ment of police laws will undertake to •"* Except in connection with Sun- deal with immorality by measures day legislation, Mass. Rev. Laws, tending to regulate and diminish it, ch. 9S, § 2. recognising the impossibility of total ■» Jenks v. Turpin. 13 Q. B. I). 505, suppression. Foreign legislation in 1884. this sphere of internal police is, 174 PUBLIC MOKALtt-GAMBLING. § 191 Car. II. ell. 7, which also .subjected the -\vmuer of more than £100 at one sitting to an action of recovery and forfeiture. The latter policy was extended to winnings exceeding £10 by stat. 9 Anne eh. 14, and the same statute made provision for requir- ing persons supporting themselves by gambling to find sureties for their good behavior. A number of specified games of haz- ard were forbidden by statutes of George 11.^ The statute of 8 and 9 Vict. ch. 109 makes all wagering contracts void. The rule that all wagering and gambling contracts are void has been established by statute in most American states.^ Fol- lowing the statute of Anne, winnings exceeding a specified amount at one sitting, sometimes winnings irrespective of amount, are made recoverable by the loser, in some states with an additional forfeiture. The odious provision of the English statute" allowing a treble recovery by any informer if the loser does not bring action, has been adopted in a number of states.** Not uncommonly, moreover, recovery of losses is also allowed against the owner, tenant or occupant of the I)remises, avIio knowingly allows them to be used for gambling, even in favor of the informer.^ A public prosecution of per- sons who play for iikiih'v without aggravating circumstances is allowed in Illinois,'" lint not in Massachusetts or New York.'' Texas prohibits the phiying at a game of cards at any place but a private residence occupied by a family.' - J; 191. Aggravating circumstances. — The following aggra- vating conditions in connection with gambling have become llie subject of legishil imi : (a) Coiiiiiioii Lf.iniblcis. The statute of Ann«» provided MieaHures against pei'sons supporting themselves by gambling, and the Revised Stnlutes of Xew Vol'lc'-' deelni-e llieiii to be » 12 Oeo. II, rh. 'JS, l.'i (}.•,,. II. ■ h. i"(riin. CcmIc. § Il'(;. !!'. 18 Geo. II. r\\. :m ; ilic forl)i oxcept hackjjaiiiinon. :,[) |,. H. A. 72ri. "StiinHon Amoriran Statiilr I,;i\v, i- l' llliiK.iH Art of 1895; N. Y. -- \V;inl v. State, 17 Oh. St. 32, liawH, iHini, cb. CM. .:h i>(,„pl,. v. ForboH, 52 Hum :W. 23 8o nlHo in the Uonian Law, Dig. 2" Statn v. Tlall, 32 N. J. L. 158. 11, n, 2, 3. .1" IIarl):iuf,'h v. People, 10 III. 294. t« Wi'tmor.' V. Staff. 55 Al:i. I'.ts. ''i WilkiiiHon v. Stitt, 175 MaHB. -♦ N. Y. Penal Co.lo, 8 33(5, 310. 5M|, .'",(; N. 10. 830; Wcat v. Carter, » Higfl V. .Tcbb, 3 Htark. 1, 1820. 129 III. 249. §193 GAMES OK SKILL. I77 tion offering the prize, does not make these fees stakes put up by the competitors unless the prize is made up entirely of such fees.3- -phe statute of 8 and 9 Victoria making void all wagering contracts expressly excepts subscriptions to con- tribute towards a prize for the winner of any game, sport, pastime or exercise.^-'' § 193. Billiard tables and bowling alleys.— Since the keep- ing, for hire, of gaming apparatus, is only prohibited if the same is intended to be used for playing for money, there is usually no difference made between games of chance and games of skill. The statute of 33 H. VIII. ch. 9 prohibited the keeping of places for bowling, but this was repealed by 8 and 9 Victoria ch. 109. In this country it has been strongly ques- tioned whether the keeping of bowling alleys would constitute a nuisance per se at common law.^^ A New York statute pro- hibiting billiard tables in houses kept as inns or taverns,^^ though re-printed in the latest revisions, seems to have fallen into disuse. ^^ In Illinois, while the power of cities over gaming and gaming houses and lotteries is simply one of suppression, they are authorised to license and regulate, as well as to pro- hibit and suppress, billiard tables and bowling alleys.^" A power to suppress and restrain gaming has been interpreted to authorise the licensing of billiard tables. ^*^ The legislative power to suppress the keeping of such places for hire, does not appear to be subject to doubt.^^ § 194. Horse races.— Horse racing has become the subject of legislation chiefly on account of the fraudulent and gambling practices connected with it. Racing, in itself, is tolerated or legalised as a means of improving the breed of horses, while a race run for a prize or premium set by some third party 32 Harris v. White, 81 N. Y. 532 ; 39 state v. Noyes, 30 N. H. 279 ; Dudley v. Flushing Jockey Club, 14 State v. Hall, 32 N. J. L. 158; Com. Misc. N. Y. 58. v- Goding, 3 Mete. 130. Otherwise 33 § 18 of act. as to " keeping billiard tables, ' ' 34 State V. Hall, 32 N. J. L. 158 ; which would include private owner- contra: Tanner v. Albion, 5 Hill ship. It has been held that this 121; State v. Haines, 30 Me. 65. cannot be made to depend upon the 35 1 Eev. Stat. 661, § 6. payment of a heavy license fee. 36 People V. Forbes, 52 Hun 30. Stevens v. State, 2 Ark. 291, 35 Am. 37 City Act V. 1, No. 44, 45. Dec. 72. 38 Ee Snell, 58 Vt. 207. 12 178 PUBLIC MORALS— GAMBLING. ^ 195 does not constitute gambling.^" A race is held to be a game within the statutes forbidding or avoiding bets on games.'*^ Early New York statutes declared all races not expressly au- thorised by law to be public nuisances.-*^ This provision was repealed by a general repealing act of 1886, leaving the sub- ject without regulation. A comprehensive regulatioji was un- dertaken in 1895.^^ The formation of corporations for the raising, improving and breeding of horses is authorised, and such corporations, the owners of horses and others who are not participants in the race, may contribute towards the making up of purses, prizes, etc., to be contested for by the OAvners of horses. These corporations may hold races upon obtaining a license from the state racing commission, created by the act; the races being subject to specified rules. All races not au- thorised by the act. for stakes or rewards, are declared public nuisances. Betting upon the result of any race is prohibited, and any money or property staked is forfeited to the other party or to the depositor. The act does not make betting oh the race a penal offense, but the keeping of a betting place is contrary to the act, and, moreover, covered by the provisions of tbc IVnal Code.-»-« Many si)ecial provisions regarding races, especially prohib- iting fraudulent entries, are to be found in the Session Laws of the various states in recent years. New Jersey enacted elaborate legislation in ISf);^ and repealed it in 1894. Indiana ill KS95 imi)osed considerable limitations regarding the period of the year and the length of time during which races should he ;illnw('d to he licM.'f' §195. Betting. -A bet or wager is the act of two or more persons, by wliicli each stakes something of vahie upon the correetnes.s of an assertion, opposite to that of the other party, or pjirlies, the friith being ohjeetively or subjectively uncertain at Ihr tiiiH' the brt is made. 'I'he assertion m.iy involve cah'U- Ifttioii ami judgmenl. in which ease the bel i-esenibles a e.onlesi «" Pooplp ox rol. SliirniH v. Fal- iii.in \. S(r;i(lcr. L'.'J III. 493; Wilkin- Ion, IfiJ N. V. \2, 4«J N. 10. L'".t(i; sou v. Tduslcy, 1(5 Minn. lili.'J. MnrriM v. White, 81 N. Y. 532. ' I iC<-v. Stat., 672, §55. ♦' Hliixton V. Pyp, 2 Wiln. :U)S(. •" < 'luiji. .""iTO, Laws 189!3. 17WJ; KlliH V. n..iilo. IS M,.. :U7; ^'IVniil Cido, § :{4:?. < lM>«m«.m V. Htiilc. S Mhirk .",:!•; T:,r ••• Htiifc v. Koby, IlL' lixl. l!()M. IVA I.. U. A. L'i;{. § 195 BETTING 179 of skill, or the correctness or incorrectness of the assertion may be matter of chance. Bets or wagers, unless in some special manner violating,' order or decency, were in England regarded as enforceable by civil action,'*^ and the same rule was adopted in American states, though sometimes with expressions of regret.'*' Bets on games are uniformly treated by statute like gambling, and in many states all betting and wagering contracts are made unenforceable.^'^ Statute 8 and 9 Victoria ch. 109 makes the keeping of betting places unlawful, and not merely the keeping of, but the presence for the purpose of betting at, places for registering bets on games, contests, etc., is made an offense in Massachusetts.^^ Betting has received special legislative attention in connec- tion with horse races. As before stated, a horse race is a game within the provisions of the law forbidding betting on games, and a statute against keeping betting places will apply to bets on horse races.^*^ i\Iany states have enacted statutes against bet- ting, book-making or pool-selling on races.^^ In some cases. however, an exception is made in favor of the inclosures of track or fair associations.-^- In Illinois it has been held that such an exception leaves the bet made on the race track to the prohibition of the general statutes."'-^ Otherwise such an exception would present the constitutional problem of a legis- lative sanction given to one form of gambling, if carried on at specified times and places.^'* In New York, where the con- stitution forbids the authorising or allowing of any pool-selling, book-making, or other kinds of gambling within the state, the making and recording of bets upon a race-course, and at a race authorised by law, is visited with the exceptionally mild 4c Bulling V. Frost, 1 Esp. 235, sa Tennessee, 1891 ; Missouri, 1895, 1795; McAllister V. Haden, 2 Campb. held unconstitutional in State v. 438, 1810; Hussey v. Crickett, 3 Walsh, 136 Mo. 400, 37 S. W. 1112. Campb. 168, 1811. 35 L. R. A. 231; a similar act of 47 Dewees v. Miller, 5 Harr. 347; 1S97, however, was upheld on the Johnson v. Fall, 6 Cal. 359; Beadles ground that by that act a license V. Bless, 27 111. 320. was required for the legalised bet- 4S Stimson, § 4132. ting. State v. Thompson, 180 Mo. *'•> Mass. Rev. L., ch. 214, § 5, 23. 333, 54 L. R. A. 950. soSwigart v. People, 154 111. 284, ss Swigart v. People, 154 III. 284, 40 N. E. 432. 40 N. E. 432, 1895. 51 So Illinois by Act of 1887. ^4 See § 730, infra. 180 PUBLIC MOKALS- GAMBLING. § 196 penalty of the forfeiture of the stake, while book-making and pool-selling in general, are made felonies. This has been held constitutional upon the ground that the courts cannot control the legislative discretion as to the effectiveness of any measure, which in any degree tends to counteract the evil dealt with.^^ It was the obvious purpose of the New York legislature to give a covert sanction to betting on race tracks, and it is inter- esting to note in this connection that a select committee of the British House of Lords upon the subject of betting has recently made a report in which it expresses its conviction that it is impossible altogether to suppress betting, and its belief that the best method of reducing the practice is to localise it, as far as possible, on race courses, in definite inclosures and other places where sport is carried on. The same report also shows that the suppression of betting places has only resulted in driving the book-makers to the streets, thereby greatly extending the evil.^*^ LOTTERIES. §§ 196-198.1 § 196. Authorised lotteries.— Lotteries have been distin- guished from other forms of gambling ]\y the fact that they were in former times universally used as sources of public revenue, and were also under public authority resorted to for the purpose of raising funds for benevolent and otherwise laudabk' enterprises. If used as sources of public revenue tlii-y might eitiicr be set on foot by the state directly or the privilege to arrange a lottery might be granted for a con- sideration to an individual or a private company. Thus we find in 17'J1 an act of the Province of New York prohi])iting the rafiling of goods with ;ni exception in favor of one William Lake, who holds a license from the government, and in 1740, an act establishing a lottery to raise £2,250 for the founding (»f a college. A long list of lotteries authorised in Virginia is given in JefTerson's works, Vol. 10. p. l^Gr), and under an act (»f congress of May 4, 1H12, tlie i-it y of Washington had power to authorise the drawing of lotteries to effect improvements in the city.- As long ms lotteries existed under governmental " Poopli" ex rol. StiiTKiH V. Falhui, i Hon .loliii Ti. Tliotiuis, liottorios, 162 N. Y. 1, 4fl N. K. 30L'. LawH I'miids ani-i/e were i-ealiy given 1" People V. fiill.son, 101» N. \. " Loliniaii v. State, SI lii«l. l.'i; 3H0; State v. Daltnn, T^ I?. I. 77. ITikIc'Ihoii v. State, •)» Iii-I. 4L'(i. 40 At I. 2.34. ir-S.'c TTonier v. United States, >> Comnioinvcaltli v. Kincrsoii, ' Ifi'i 147 U. S. 441>, aii) Oil. St. L's:!. (id X. ]•]. L'2n, .'52 L. wBnrrlny v. Peam.n. I,, li. 'W. ]{. A. r,:w. 2 Ch. l.''>4. iiKcdiii V. Koelder. iU! \. V. 'M\\l; itCronn v. Pfople. 18 Col. 321, 30 ex p. Sliohert, 70 Cal. 032. Am. St. 1{<|>. 2512; «cc, cnntrn, ThomjiH, op. cit. p. 21-.3.'5. § 199 SPECULATION. 1^3 without consideration, the participators in the chance receiving full value for their money irrespective of the chance. There- fore such a scheme is held to be only "in the nature of a lottery "^'^ or "a similar enterprise offering prizes depending upon lot or chance. "^^ In order to come under the statute of New York, payment for the chance is essential, but there can be no doubt that the purchaser of an article, ticket, or bond, in reality pays for the chance by an increased price, a reduced rate of interest, or diminished security. The statutes against lotteries prohibit and punish not only the arranging of lotteries, but the selling of tickets, and all advertisements relating thereto.^ '-^ Purchasers of tickets are punishable only where the possession of a ticket is made an offense.^^ The United States has legislated against "lotteries, gift con- certs, and similar enterprises" by prohibiting the importation from abroad, the carrying from state to state, and the mailing, of tickets, lists of drawings, advertisements, or newspapers containing advertisements concerning the same.^^ The con- stitutionality of this legislation, as far as importation is con- cerned, is unquestioned; as regards interstate traffic it has been upheld on the ground that such prohibition is regulation of commerce,22 and as regards exclusion from the mails, has been sustained in analogy to the exclusion of obscene matter.-^ SPECULATION. §§ 199-203. § 199. Legitimate speculation.— The element of uncertainty of gain or loss enters into most business transactions, but the uncertainty or chance is not the controlling feature of ordi- nary transactions. Where it is the principal motive we speak of speculative business or speculation. It differs from gam- bling by the fact that it is an incident to an otherwise legiti- mate form of dealing, namely, the purchase and sale of prop- erty, and that the profit, if any, is received in return for a full equivalent given. The circumstance that payment is primarily dependent upon iTBallock V. State, 73 Md. 1, 8 Sept. 19, 1890, I. Suppl. 803, Act L. E. A. 671. Mch. 2, 1895, II. Suppl. 435. 18 Federal Act Sept. 19, 1890. 22 Champion v. Ames, 188 U. S. 19 N. Y. Penal Code, §§ 326, 327. 321. (The Lottery Case.) • 20 Ford V. State, 85 Md. 465. "in re Eapier, 143 U. S. 110. 21 U. S. Eev. Stat. § 3894, Act 2^4 FUBLIC MUlJALb-LiAMBLiNG. § 200 an uncertain future event characterises two kinds of business transactions, bottomry or respondentia loans, and insurance or indemnity contracts. The bottomry loan is sanctioned by the custom of maritime laws. In an insurance contract the insured is not expected to make a profit, but merely to be reimbursed for his loss,-^ while on the part of the insurer the large number of chances goes far toward eliminating the ele- ment of uncertainty in accordance with the doctrine of proba- bilities. Respondentia and insurance serving highly useful economic ends, are universally excepted from the prohibitions of gambling, expresssly or by implication ;-•"' but the special control which the state exercises over the insurance business may in part at least be justified by the fact that it may become gambling, unless conducted on a sufficient scale and upon sci- entific principles. The jiurchase and sale of growing corn is likewise a legiti- mate though speculative transaction, and cannot be regarded as gambling,-" but it was formerly looked upon as a trans- action by which the peasant was apt to be oppressed or over- reached, and was forbidden, or regulated as to price, in Ger- many and France. This legislation, however, has been abro- gated.-" § 200. Stock and produce speculation.— The speculative na- ture of dealings in commodities assumes an aspect of especial interest where values are subject to considerable fluctuations, iiiid the metiiods of dealings are so organised as to facilitate transactions to the utmost. This is the case of the business dom- at stoek and ])ro(Ince exchanges and boards of trade, in Blocks jind bonds, metals ;ini| exchange, ;ui(l pi-oduee of dif- fiTcnt kinds. Speculation of this kind is nol without its econoinic benefits, since the concentration oi" sui)ply and de- niarid has the cfT'ect oC- making market prices tluoughont the community uniform and easily ascertainabl(\ and the price fixed l)y active bidding and asking is apt to corr(^spond to the true value of (he commodity; hut varions phases of it lend fhi-iiiHclvoH easily to the purpf)se of giiml)ling. 2« KsikU' InBiirnncfi Co. v. Lafjiy- l.iltitcil all fontrat'tH nf assunincfi Pttc \nn\irtuut' Ct,., {t Ind. -M.'?. b) way <•(' trsoniiifi or waycrinn. "•Now York IVnal f'odn Hnc. an Simliui i, v. I'.cncli.t, 7H 111. 'M\ ni. Trim, Co.lo Sec I.'IJ. mj). ^..... .,. ,0 f;^„ ij^ ,.j,j^ ,^-^ j^^^^ -'T Fr,.,,,!, T,;i\v July 9. 1SS9; in (! Vn. LMtl; ••'•'■' MaHHachnHctts Rov. Laws cli. KlnRj; V. HaKlwin, 38 N, J. K(\. 219; r9, Sec, 4; al»o Ohio, Missoiiri, .Mis- l'i<-kl, 41 . .InfuioHoii, IMJ V. H. IfU. \. E, 1.'04. § 201 FUTURES AND OPTIONS. 187 the gambling elements of a transaction are severable by thu interposition of a broker, who buys or sells, without possible; gain or loss, while the principal wins or loses, without buying' or selling. If one party is in good faith, the contract ought not to be void because the other is not,'*' although some statutes make it void;^^ but there is no good reason why the law should not nullify the transaction between the gambling principal and the broker, who while not gambling himself aids and abets gambling. The law of Massachusetts, however, does not allow recovery of payments made to the broker, where the oth"- wliieli upon existing companios and tr.'ietH whicli are not ^;aInhlin^ tlieir shareliolders woulil surely vio- f ranwu'lionH ; liut the opinion does late the l''ourteenth Anieinlinent. not refer to the prohibition of HaleH •»'' Mnnsf. Dij^. 1848, ISJO. for future delivery, and it doeH not •»" Fortenbury v. State, 47 Ark. appear whether thin |irohibition is IMH. Hfinetioned or not. Would not a de- f-" People v. Todd, .')1 llun M<). livery on the i 203. Foreign legislation regarding exchanges. — The diffi- culty of distinguishing between legitimate and illegitimate speculation has also been experienced in other countries. The English statute of 1737 Avas repealed in 1860 and there is now no legislation upon the subject of stock speculation in England. The provisions of the French Penal Code were quite compre- hensive in the matter of gambling transactions in stocks: it forbade all machinations to bring jiriccs above or below what they would be in case of free competition f^ all bets on the rise or fall of public securities,^" and all agreements for the sale and delivery of public securities where the seller could not prove that he had them ;it his disposal at the time of the agreement, oi- would have had them at the time set for delivery.'^'^ An a<'1 of M;iri-h 2M, 188'), however, recognises as legal all time fontrai-ts regarding public or other securities, or goods or iiH-n-handisc, and provides llial no one may escape the r^inltiiig obligations by setting up the defense of wager or gambling, even though the settlement should be by payment of differences. The ;ic1 repe.-ils jirlieles 421 and 422 of Ihe Penal Coch' above rcTerred to. Every brnkei- is m.-ide i'isi)oiisihle for tin- deliver.N' and j);iyMieiil of his s.iles .-iiid piiiTliases, ;iiid the terms of llir pi i-roi-ni.iniT uj" time eonlraels Ity bi-okers .'ii'" 1o l»e fixed by administ ral ive ordinance. In Franei- jis well ;is in (Jerjnany iind other eoni inent.jil Htates, the establishment of <'X(dianges has long lieeii depenchmt upon governmental eonsent. and the "j-overinmiil ;dso to n considerable extent supervises llnir ninn.igenM'rd and rules. ft-- IV L'fi. "See. 4'Jl. 6«Se<-. 41 1». f'SHcc. 422. § 2Uo EXCHANGES. lf)l This supervision is based partly on the ground that the (juota- tions fixed by the exchange are for legal purposes accepted as determining the market price of the commodities to which they refer. It is, however, clear that control over exchanges is claimed irrespective of that fact. In 1896 a stringent law was enacted in Germany for the purpose of regulating deal- ings in futures of the character usual in stock and produce exchanges, requiring among other things that in order to make contracts of that kind enforceable the parties thereto should be entered in exchange registers; whereupon the de- fense that the contract was a gambling transaction should be excluded. A great opposition arose to this requirement of registration, to which most bankers and brokers refused to submit. A number of produce dealers in Berlin undertook to form a free exchange association, foregoing the privilege of officially recognised quotations and hoping thereby to escape the provisions of the statute. It has, however, been held that such an exchange is as much subject to the law as any other, and it appears from this that the method of business pursued in exchange transactions and the facilities offered for gam- bling furnish the true ground of government control. This control is sought to be accomplished in Germany in two ways : by an extensive regulation of exchanges regarding establish- ment, membership (exclusion of women, of bankrupts, etc.) and methods of fixing quotations, and by special restraints on dealing in futures, which are altogether prohibited in min- ing and industrial shares and grain and flour and other specified securities, and made dependent upon the requirement of registration in the securities in which they are allowed. Excepting the provision excluding women, legislation like that enacted in Germany does not seem to be beyond the constita- tional power of American states. CHAPTER VIII. PUBLIC MORALS (CONTINUED). INTOXICATING LIQUORS. § 204. Constitutional basis of control.— The evils and dan- gers attending the immoderate use oi" intoxicating liquors are universally recognised. To what extent the state should imdertake to guard against them is a question which has been greatly controverted both from the point of view of right and of expediency. In so far as the liquor traffic may be accom- l)anied by open disturbances of public peace, order or decency, the police power in its narrowest sense is competent to deal with it on principles before discussed; the state, however, attempts to combat more remote and insidious consequences: the wastefulness of excessive consumption of liquor and the gradual undermining of the physical and moral constitu- tion of many individvuils through its habitual abuse. These are evils which primarily affect only the individual addicted to the immoderate use of intoxicants, and against which imder the constitutional view of individual liberty, he can guard by self-control. In that respect the danger from liquor is very ditferent from unsanitary or unsafe conditions which Ihrt-aten the public without the possibility of adequate indi- vidual self-protection. As in the case of gambling, the police power alVords j)rote(ttion from temptation, i. e., from the weak- ness of the will. If this were the sole .iustifieation for the control of llie !i(|iior trallie, there would })e great force in the objection that it runs eouulei- lo I'lindamental principles of individual liln rly; strong i-eliiuiee is therel'ore ])laced upon the ulterior dangers to the community at large IVoin the exist- ence of intemperance in ils midsl. "It is uriicd Hint as the liquors are used as beverages, and Ihe injury following th(>m, if taken in I'Xcess, is voluntarily inflicted ;ind is confined to the party offending, their sales should be without restrictions, the eontention being that what a man shall drink, e(|ually with what ]\i' sludl eat, is not pioperly a matter for legislation. There JM in tliis j)osition an assuniptiral right to engage in till- lii|iinr tfiillic as (list inguislicd IVoni a right- depiMident iiimti llic exercise of ailministrative discretion in cadi case, is not incfjiisistcnt with citlnr dl" the following safeguards: "•Art M.'inli 'Jfl, ISOfi, (',<■„. I.mum, 21 Sec. 34. ch. 2J». -'zScf. 129, 34. i«Hcr. 17, IH. a-iHno § .17, supra. 2« Section L'3. a* Rcc. 33. § 208 LICENSING SYSTEMS. lf)7 1. The exclusion of specified classes of persons; so under the law of New York persons convicted of felony, minors, aliens and non-residents, foreign corporations, persons who under former laws had their licenses revoked and persons convicted of a violation of the present law (these are disqualified for a period of five years). -^ Such exclusion operates without indi- vidual discrimination. 2. The requirement of a bond with sureties for the com- pliance with statutory regulations,— a very common feature of liquor legislation. 3. The requirement of the consent of the landlord of the premises in which the traffic is to he carried on : this is a provision in the interest of private rights only, and does not give the person whose consent is required a licensing power.-^ To require on the other hand the consent of all or of the majority of the inhabitants of a specified district, is to make the liberty to engage in the business practically de- pendent upon a discretionary license, the power to license being delegated to the people instead of being vested in administrative authorities. If the consent of a majority can overcome the dissent of a minority, the consent becomes a public function and trust, and may therefore not be made the subject-matter of a bargain between the applicant and the required number of owners.-' § 208. Requirement of a license to be issued as a matter of judicial discretion.^s— This system, which is not inconsistent with absolute exclusion for stated disqualifications, is the one which was adopted in England by the first licensing act, of 5 and 6 Edward VI, chapter 25, and is embodied in the present English legislation, Avhich provides that it shall be lawful for the justices of the peace assembled at the general annual licensing meeting for the county to grant licenses for the sale of liquor "to such persons as they, the said justices, shall in the execution of the powers herein contained and in the exercise of their discretion, deem fit and proper."-^ The 25 See. 23 of Act. 28 See, also, § 651-655. 26 See, however, State v. Sinks, 299 George IV, ch. 61, See. 1, 42 Ohio St. 345. 1828. 27 Doane v. Chicago City K. Co., 160 111. 22, 45 N. E. 507. 198 INTOXICATING LIQUOKS. § 200 judicial character of the discretion is secured both by the requirement of hearing applications, so that where an applica- tion Avas refused without hearing in pursuance of a general resolution to grant no more licenses, mandamus would lie to hear, although not to grant,^*^ and by provision for appeal from a refusal to grant to the Quarter Sessions.^^ This system of discretionary licenses has been common in this country from the colonial times, and is even now found in the majority of states. The statutes say that "it shall be lawful for" the licensing authorities to grant, or that they "may" grant licenses often adding "to suitable persons," or "if they think the applicant a fit person," or "if deemed, expedient" or like words, or that they may refuse the license if they deem the applicant unfit. AVords of discretion are also used : that they may grant or reject, or approve or disapprove, "at their discretion," "as they think proper," etc. >; 209. Judicial control.— It must be regarded as firmly established that tliis discretion is judicial in its character, and does not mean arbitrary power.'*^^ Statutes often provide for a hearing in express terms, and in a number of states for tlu' hearing of objections and remonstrances as well as for a hearing on behalf of the application. Courts have repeatedly refused to review the discretion of the licensing authority, l)ut this \v;is nearly always done on the theory that the discretion IkhI been honestly exercised. Mandamus will, therefore, not lie In dictate the exercise of the discretion one way or another, unless it appears clearly that there is no ground for refusal,^'' or that the ground of refusal is one not recognised by statute.''^ Tn Virginia it had been held that the discretion of the licensing autiiority eouhl not be reviewed tliougii it was admitted that it couM not be an arbitrary discretion •."'•''• ther<'upon an ai)j)eal was given l)y statute to the cii-cuit court.-''*' Such statutory ajipc.'ils ;ire rouml in other states, jiud the appellate court then .10 Rog, V. Wnlnuil JuHticoH .'< C L. slodd lo (•(iriHlnic tlio imiiii(ii>;il orili- R. 100. jijinco as cxcliidiiig discrotion. •n Hrr. 27 of Act. •'i* I'olliinl 'h Appeal, 127 Pn. St. 32 HrliluiKlwkcr v. MnrHlmll, 72 .'(07. J 'a. St. 200; Unitorl HtntoH ox rfl. ir. Kx parfo YoaRor, 11 Oratt. fi.l.^. Itr.op V. DoiijjlaHH, IJt I). ('. 00. 1.1 i,piyi,t„n v. Maury, 76 Va. 86r) ; '■»••» Znnnno v. MoiuhI City, 10.1 111. AllHti.ck v. I'apo, 77 Va. 3.Sfi. 652. Thin cawj may aJHo bo iirnlor- § 210 DISCRETION OF LICExXSlNG. lyy exercises its own discretion in the matter."*" Where there is no such statutorj^ appeal the relation of th<' courts to the discretion of the licensing authorities is based upon the prin- ciple that there must be a hearing, the refusal must be for a legal reason, and where these two points appear the court will not assume to discuss* the correctness of the result reached. 2^ In Massachusetts it is expressly provided that noth- ing in the act is to be construed as compelling the granting of licenses.^^ § 210. Considerations guiding discretion.— The points to be taken into consideration in exercising discretion are mainly three : the suitability of the person, the suitability of the place, and the number of places in relation to the number of people and their reasonable accommodation. With regard to place there are numerous specific restraining provisions in the stat- utes, which however are not necessarily exhaustive. With regard to number of places, it has been held in England that an absolute limitation is inconsistent with the right of each individual to the exercise of judicial discretion in his par- ticular case;^° but in New York (under the law before 1896), and Pennsylvania, excessive number is a good ground for refusal.-*! The Pennsylvania (Brooks) law of 1887 makes the public need a controlling factor; the court is to refuse the license whenever, in its opinion, it is not necessary for the accommodation of the public and entertainment of the traveler. The suitability of the person is an element of consideration wherever there is any discretion, and in theory it seems plausible and perhaps indispensable to insist upon it. Yet the abuses of favoritism, etc., inseparable from it, deprive even this form of discretion of most of its value. The requirement <>f ;i certificate of character to be given by a specified number of reputable citizens is of even more doubtful utility, and was abandoned in England in 1828 as vexatious and unreliable. The Supreme Court of Michigan has gone so far as to declar.' that under the constitution all disqualifications debarring from the right to engage in a lawful business must be specific, and •"•T Hopson 's Appeal, 65 Conn. 140. •»! People ex rel. Hoy v. Mills, SH 38 Gross' License, 161 Pa. St. 344. llun 144; Re Raudenbuseh, 120 Pa. 39 Rev. Laws, eh. 100, § 16. St. 328. 40 Reg. V. Walsall Justices, 3 C. L. R. 100. oQO IXTOXICATIA'G LIQUOKS. § 211 that the charge of bad character is so vague that an applicant cannot meet it, thus holding the requirement of good character in a general way to be unconstitutional;^- but it has since receded from that position,-*^ and the contrary view has met with the approval of the United States Supreme Court.^^ §211. Absolute limitation as to numbers.^"'— The laAv of jNIassachusetts is conspicuous for a provision by which the number of licenses to be granted is restricted to a definite pro- portion of the population.^*^ Such an absolute limitation may be looked upon as giving to the license holders a monopoly, but it is also true that the monopoly is merely the incidental effect of defining by a fixed and comprehensive rule Avhat according to the legislative judgment is a reasonable restriction upon a business which, carried on to an excessive extent, is harmful to the community. Such a monopoly is a legitimate form of police restraint, if the principle of equality in the selection of the licensees is not violated. It must be admitted that it is not easily reconcilable with the constitutional provision that no privilege shall be granted which shall not on \\\o same terms be open to all others, and it was on this ground held inadmis- sible in Arkansas.-*' While not absolutely inconsistent with tilt* policy of granting licenses as a matter of right, yet the limitation of mimbers is not easily administered under such a policy, ;iiid tliiTcfoi-c not in ])ractice I'ouiid in connection Avith it. High license fees are generally relied upon to keep the iiiiiiiIh'I' III" places within i-easonal)le limits. !$ 212. The right to sell depending upon uncontrolled dis- cretion. •■'^ — A power (if uiMMiiit rolled and ai'bitrary discretion ill the granting or withholding of" licenses differs IVoin a power of proliihilioii in lliis, that Hie roriiier is administrative, the laltei- legislative, in case ol" prohibition llie aiitliority to wliich the matter is comniitted (leteriiiines that no licenses shall lie grjinfed to anybody; no pai'ticiilar reasons are or can '"■ "-iveii in such a case, which represeiils an exercise of" *a Rol)iHon V. Miner, tiS Midi. .I-IH. niilHific (if Hdsloii, uih' to .100 in 4»HtuTl(Kk V. Hinarl. '.•(> Mich. l!<>Ht One licenHe fo 1,(100 inli.iliilaiilH § 213 UNCONTROLLED DISCRETION. 201 legislative judgment upon a general question of policy. Power of uncontrolled discretion would mean that the licensing authority might grant a license to A, and withhold it from B, without any reason for the discrimination. Such a power is not, and on sound constitutional principles cannot b<', vi'stfd in administrative authorities.^^ But it is regarded as in accordance with the principles of popular government, that the people themselves maj- judge in each case whether a license should be granted or not. Necessarily the reasons or motives guiding the action or deter- mination of a considerable number of people, whether ex- pressed by ballot or by petition, consent or remonstrance, are legally imcontrollable, and such popular decision therefore represents a form of absolutely free discretion. The law may require a positive expression of opinion in favor of each license, or it may be satisfied with giving a right to veto by remonstrance,^" the former being of course the more stringent provision. The power of decision usually rests with the inhabitants of a smaller district than a county : a town, or election precinct, or the neighborhood of a church or school, or a district within a specified radivis from the proposed house, or a block or square.^^ Where the dis- trict is very small unanimous consent may be required. This comes then very close to the provision for the consent of adjacent property owners. In one form or other the right to a license is thus made to depend upon the will of private citizens by the statutes of a considerable number of states,^- and undoubtedly under local regulations in many counties, towns or cities in other states. The constitutionality of this method of licensing has been sustained.^^ PROHIBITION. §§ 213-217.54 § 213. Constitutionality . — The name "prohibition" explains the principle of this legislative policy. It aims at the entire suppression of the traffic in intoxicating beverages, either l)e- cause even moderate consumption is regarded as an evil, or *■' § 651-655, infra. I'liu, Illinois, Kentucky, Mississippi, •''0 Indiana Nicholson Act of 1895. Missouri, Oregon, Rhode IsLind. •''^1 Harrison v. People ex rel. Boet- -'-^ Crowley v. Christensen, 137 U. tor, 195 111. 466, 63 N. E. 191. S. 86; Swift v. People e.\ rcl. Ferris ••■- Arkansas, Florida, Iowa, ludi- Wheel Co., 162 111. 534, 44 N. E. 528. 54 See, also, § 538-542, 564. 202 INTOXICATING LIQUOES. § 214 because it is believed that auy method of regulation is inade- quate to prevent excess and abuse. The constitutionality of prohibition is firmly established."^ The one decision in which it was squarely denied"*^ has since been ignored by the court which rendered it. In sanctioning prohibition, the courts do not necessarily accept the view that all use of intoxicants is wrongful, but simply apply the principle that a business which ministers merely to the gratification of pleasure, and does not serve any valuable social or economic end, may be sup- pressed, if attended with evil to the community. >; 214. State wide prohibition.— There are sixteen states which cither at some time have had, or which now have, pro- hibitory legislation covering the entire state. The periods of prohibition in those states in which it has disappeared are as follows: Connecticut, 1853 to 1872. Sustained, State v. Wheeler, 25 Conn. 290, 1856. Delaware, 1855-1857. Upheld as constitutional in State v. Allmond, 2 Houst. 612, 1856. Illinois, 1851-1853. Upheld as constitutional, Jones v. Peo- ple, 14 111. 196, 1852. Indiana, 1855-1858. Dechiicd unconstitutional in Beebe v. State, 6 Tnd. 501, 1855. Iowa, partial from 1851-1884; total from 1884-1894. Upheld in Santo v. State, 2 Iowa, 165, 1855. .Massachusetts, 1838-1840, 1852-1868, 1869-1875. uplu'ld Com. V. Knidall. 12 Cush. 414, 1853. .Michigan. 1855-1858. Upheld in Sl;i1c v. IImwU'V, 3 .Mich. 330, 1H54, and State v. (Jallagher, 4 .Mich. 244, 1856. Nebraska, 1855-1858. New IIami)shire, 1855-1903. New York, 1855. Dcchircd unconstitutional on account of parlicniar provisions, \V,\ inli;iiiiply to the giving away of liquor by a person in his OAvn private dwelling, unless given to a minor other than a member of his own private family or to a habitual drunkard, or unless such dwelling becomes a place of public resort.^ § 216. Local power of prohibition.— The policy of local power of prohibition indicates the sentiment of the legislature that the suppression of the liquor traffic is a legitimate method of dealing with it, and that the legislature is not on principle opposed to it. The question is left to be settled by the people of a local district for that district. In some states we find sjiecial local acts passed by the legis- lature, establishing prohibition in some locality.- Practically this is Tiot very different from a local power of prohibition, since sudi local acts are not apt to l)e imposed upon the locality against its will. Ill ;i number of states llic powers of legislation vested in local authorities extend to llu' sui)i»ression of the Ii(|iior traffic. Thus ill Illinois the city council of every city has power to lieensf, rc^Milate and j^roliihit the selling or giving away of any iiitnxiciit ing, mall, vinous, mixed or reniiente(| lifpiors;'' and ill California the provision of the eonsl it ut ion that " iiiiy county, city, tfiwn or township may make ami cnrorce within its limits all such loc;il police, sanitary and other regulations as are not in coiillicl with geiM'i-al laws."' has been Ih-M to place (lr,imsli()])s ;iimI li;ir roums rntiri'ly williiii local ciinli'dl, even to the extent of proliiliit ioii/' "3 Drnnohy v. (liioij;.!. IHd III, i Ad .\l,S.c. II. r.'Jl. r. Kx i.iirt<« ('jiiiiplu'lj, 74 Cal. L'O. > HiJitiit"" \^'>\ ^ 1 H; ' S.'f !{ (Ti), III Alalcmiii .-i pciwcr to roHtrniii li:is infra. Iiccii licid to he ;i iiowcr In |)r(i- 2 Ho in Aiiilmtiiii. Iiiliil. I nlcnihint, iVc, of Tow ii (if 3 City Act V, Hoc. 1, NO. Hi. .M:irinn v. ( li.ni.JIrr, (i Ahi. «!)!>. § 217 LOCAL OPTION. oQo ^ 217. Local option.— The most common form of local power of prohibition is that of local oi)tion, which is found iti about half of the states of the Union. Legislative provision is made for the expression by vote of the wishes of the people (of the county, or of a town), whether licenses are to be granted or not, such vote to be repeated periodically or upon the petition uf voters. In a number of earlier cases the principle of local option was declared unconstitutional as an undue delegation of legisla- tive power by the legislature to the people.*^ It is not within the scope of this treatise to discuss the validity of processes of legislation, but it seems clear that where the local power does not merely consist in the ratification of some legislative measure which is then withdrawn from local control and can be altered only by another exercise of state legislative power, but is continuing so that the people of the district can both adopt and afterward repeal, or adopt at any time,'^— that then the delegation is undistinguishable from the immemorial grant of local powers of government. The validity of local option is now generally recognised ; and even in the states in which it was formerly held unconstitutional, the position of the courts has been reversed or materially modified.*^ In Texas the con- stitution directs the legislature to provide for local option.'-* PUBLIC MONOPOLY. §§ 218-219.io § 218. South Carolina Dispensary Law,— The exclusive reservation to persons duly appointed and acting under official authority, of the right to sell liquor, was a feature of the Elaine Prohibition law of 1851, and was applied to sales for medicinal and mechanical purposes. It was followed in other states and sustained judicially. ^^ The extension of the policy to the sale Rice V. Foster, 4 Harrington Groesch v. State, 42 Incl. 547 ; State (Del.) 479; Parker v. Common- ex rel. Witter v. Forkner, 04 Iowa, wealth, 6 Pa, St. 507 ; Ex parte 1 ; Gordon v. State, 46 Ohio St. 607, Wall, 48 Cal. 279; Maize v. 6 L. R. A. 749; State v, .Judge of State, 4 Ind. 342; Geebrick v. State, Circuit Court, 50 N. J. L. 5S5, 1 L. f) Fowa 491, declaring local option R. A. 86; Feek v. Township Bt)ard law of 1S57 unconstitutional. of Bloomingdale, 82 Mich. 393, 10 7 Such was the nature of the L. R. A. 69. delegation in State v. Weir, 33 Iowa » Art. XVI, Sec. 20. 134, held unconstitutional. lo See, also, § 666, 667. 8 Locke 's Appeal, 72 Pa. St. 491 ; " State y. Brennan 'a Liquors, 25 206 IXTOXICATIXG LIQUORS. § 218 of liquor for ccnsiimption as a beverage was first undertaken in this country by a local statute enacted for the city of Athens in Georgia. Governor Tillman of South Carolina in his annual message to the legislature in 1892 called attention to this law. A bill embodying the principle was passed for South Carolina on December 24tli of that year, to go into effect July 1, 1893. It has become known as the South Carolina Dispensary Law, and having been amended in important particulars from time to time, in part to meet constitutional objections, is in force at the present time. In 1898 the sj'stem was adopted in South Dakota by constitutional amendment. In 1899 Alabama authorised the establishment of local dispensaries. A brief analysis of the South Carolina law will explain the system. The dispensary system applies to all li(|uor contain- ing alcohol and used as a beverage.^- All manufacturers and distillers must obtain a license, except that any one may make wine for his own use from grapes or other fruit.' ^ Manufac turers and distillers may sell to no one in the state except to the state commissioner,'^ who may also contract for supplies with responsible grape growers in the state.'-'' Tlu' state com- missioner furnishes liquor to county dispensers"' who are appointed, salaried and uiidci- oath, and who are themselves not addicted to the use of intoxicating liquors. They may not buy from any one but the state commissioner.'" No dis- pensary can be established in any township without the ap- I)r(>val of a majority of the township voters."* The state commissioner furnishes the liquor in ])ackages containing from one-half i)int to five gallons, to which his certificate is at- tached.'" The dispenser may sell only in these packages and they nnist not In- hrnktii ]»y the i)urchast'i- on the pr^'mises wlii-n- tlicy are sold.'*^*' No salis ;iic made ('xt'('j)t on written aii'l siLrii<-(l rcqiii'sts, showing for whose use the liipior is wanted, jind provision is nnide against selling to minors and j)ersons addicted to tin- excessive use of intoxicating li(|nors."' Hxeept as [)rovided in iji.- ;ict the iii;innl'aeture, sale, ex- (Jonn, ^78; contra, Bochc v. State, i"Sec. 3. H IikI. ."jOI, whiih \h, li(i\v«!Vor, [inili- i" Sec. 14. ably no lon^'T ntithority. i" Sim-. 8. '2Hpf. 1. 10 Sec. 3,5. 1 »«*•<■. 1.'). aoPp,.. .^, '♦S.«c. 1.'5. 21 Sec. 11. If' See. liS. § 219 PUBLIC MONOPOLY. 207 change, and transportation of alcoholic liquor for any purpose is forbidden in the state.^- The act of 1892 was remodeled in 1893, the main principle of the statute being preserved. In April, 1894, the Supremo Court of the state (one of the judges dissenting) declared tin- law to be unconstitutional upon the broad ground that the state could not in the exercise of its police power engage in a commercial enterprise.^^ For a time, therefore, the dispensaries were closed. A change in the Supreme Court was, however, shortly expected, and the governor declared that since the court had passed only on the act of 1892, and not upon the act of 1893, the latter was in effect and would be enforced. In place of the retiring judge the legislature elected one known to be in sympathy with the law. The act of 1893 came before the newly constituted court and was declared constitutional, against the dissent of the judge who in the earlier case had pronounced against the val- idity of the law of 1892. The court held that it was not within the power of the state to engage in ordinary commercial en- terprises; but that liquor was not on the same footing with other commercial commodities, and being an article dangerous to the community, the assumption of the traffic by the state was simply a form of controlling the danger, as legitimate, if deemed expedient by the legislature, as regulation or prohibi- tion. With regard, at least, to an article dangerous to the morals, good order, health, or safety of the people, a state monopoly is thus declared a proper instrument of the police power.2-1 A county monopoly has since been upheld in Georgia.^^ §219. Gotenburg system.— It is only another form of monopoly, if the state instead of assuming the liquor traffic or delegating it to its administrative subdivisions, entrusts it to a private corporation, to which it grants an exclusive fran- chise. Provided that the terms of the franchise show that the purpose of the monopoly is more efficient restriction and control, it would fall within the principle of the Slaughter 22 See. 1, 15. -* State ex rel. George v. Aiken. 23McCnllough V. Brown, 41 S. C. 42 S. C. 222, 1894; 26 L. E. A. 345. 220 23 L. R. A. 410. 25 Plumb v. Christie, 103 Ga. 686, 42 L. R. A. 181. 208 IX TOXIC ATI Xti LIQUORS. § 220 .House Cases,-^ and not be obnoxious to the federal constitu- tion. Under the provi^ons of many state constitutions, for- bidding the grant of special or exclusive privileges to corpora- tions, this form of monopoly -would be impossible. The so- called Gotenburg system existing in a number of Swedish cities, embodies this form of control, committing the whole of the liquor traffic to a company which pays all the net profits into the city treasury and is subject to strict regulations in the conduct of its business. There would be no constitutional objection to a system au- thorising the formation of corporations under general law, subject to similar restrictions as to profits and conduct of busi- ness, and confining the liquor traffic to such corporations ex- clusively. The principle of the organisation of such corpora- tions would be the same as that adopted by recent statutes for pawners' societies.^^ The principle of confining the liquor business to licensed corporations would find support in judicial decisions upholding similar legislation with regard to the busi- ness of banking-^ and insurance. ^^ *P! LIQUOR NOT USED AS A BEVERAGE. §§ 220-224. i; 220. Subject to control.— Alcoholic liquor is the subject of restrictive legislation in consequence of the harmful effects ol' its consumi)tion as a beverage. Where it is not intended to be used for drink, different rules become applicable. Till" principal uses, to which alcoholic li(|uor not intended for lit'vcrage may l)e put, are: in the mechanic arts and chem- ical industries, in which pure alcohol is variously and exten- sively employed; and for medicinal i)ur|)oses. Wine is also used for sacramental purposes, and aicoliolic li(juors enter into tin- preparation of pi-(>serves and condiments. Liquor lej4:i.slation is nowhere entirely confined to beverages. Upon well recognised pi-inciples, 1lie danger and pi-oliahility that tlie unrestricle(l freedom of legitimate emi)lo>iiieiit may be abused 1<( evade the laws made to restrain the use ol' li(|uor as a l)ev. I!); New York Ijiquor Tnx I.aw, •■•^ See, niHf), § 15L'-1.'54. S 11. siihd. .'t ; llic cxiMiiptioii uf ■"• f 'oinmimwoalfh v. Fowler, UC> dni^jfislH fnuii license fees is not \\y. 100, .'l.'i !,. |{. A. K,35). eninnstilutional discrimination. De- •■"• WrJKlif V. I'eopje, KM 111. l'J(i; moville v. Davidson Co., 87 Tenn. SiirrlH V. ('(.iiimonwealfh, h:\ Ky. 3'J7. L'14, 10 S. \V. .'{ns. <"(iray v. Cunnecf ieut, 15S) U. S. ■•- New York Li(|nor T.-ix Tyaw, 74. 8 n, 31. § 223 LIQUOR AS MEDICINE. 211 exist, and its exercise would be qs purely arbitrary as the pro- hibition of its sale for religious purposes. "^•'^ In the prohibition states of New England we find state com- missioners who furnish the liquor to local official and salaried agents who sell for public account. There is in other words a public monopoly of the same character as was later on adopted for liquors as beverages by the South Carolina dispensary system. In Kansas, and in local option districts in other states, the right to sell is reserved to licensed druggists, much as under the system of restrictive regulation. Where adequate provision exists for the supply of medicines, there is no right to furnish liquor for medicinal purposes in contravention to these provisions.'*'* Not even physicians may sell liquor without the permit provided for by law.-*^ The South Carolina dispensary law makes provision for the fur- nishing by county dispensaries to licensed druggists and manu- facturers of proprietary medicines, and of intoxicating (not malt) liquors for the purpose of compounding medicines, tinc- tures and extracts that cannot be used as a beverage. This ex- cludes altogether wine, whiskey or brandy other than such as can be obtained from the county dispenser, and where there is no county dispenser these liquors would seem to bo unobtain- able for medical purposes. It has been held in Maine in a case where upon a physician 's order a child was rubbed with rum which was privately ob- tained, there being no licensed druggist in the place, that the statutory penalty was incurred, although the court admitted that it was indiscreet to prosecute.^'' This decision is unsatis- factory. The right to an adequate supply of medicines cannot be cut off by the legislature, and when legal provisions would have such effect they must to that extent be inoperative. The plea of necessity should be accepted as a sufficient defense to a 43 Sarrls v. Commonwealth, 83 Ky. ever by construction of law, and es- 327. peeially if there is no special pro- 44 Com. V. Kimball, 24 Pick. 366 45 Carson v. State, 69 Ala. 235 Commonwealth v. Hallett, 103 Mass 452; Wright v. People, 101 111. 126 State V. Fleming, 32 Kans. 588; State V. Benadom, 79 la. 90. How- vision for sales for medicinal inir poses, a physician may be held not to be within the spirit of the act. State V. Larrimore, 19 Mo. 391. 4c State V. Brown, 31 Me. 522. 212 IXTOXICATIXG LIQUORS. § 224 criminal charge under such cirpumstances. Courts have repeat- edly intimated that statutory prohibitions must not be pressed to extreme and imreasonable applications within the letter but not within the spirit of the statute. This view was taken in North Carolina,-*" and ^Mississippi,-** even without j^roof that the necessity could not have been provided for without a viola- tion of the letter of the law. $ 224. Sale of wine for sacramental purposes.^^— The sale of wine for sacraiueutal purposes is in some states expressly pro- vided for, and treated like the sale for medicinal and mechan- ical purposes; the laws of many states, however, fail to provide expressly for this use. Where liquor can be sold under a gen- eral license system, the fact that the license may raise the price of the wine, or that the wine can only be obtained at a limited number of places, or cannot be obtained at certain hours, would of course not furnish sufficient ground for holding that an obstacle was placed upon the free exercise of religion. Where the sale of liquor is entirely prohibited, or allowed only for mechanical or medicinal purposes, or upon a physician's prescription, it may still be freely imported for sacramental use. The liberty of religion pciliaps does not impose i\\)on the state the duty of furnishing a market where the necessary accessories to worshiji Juay be procurccl. The piolubition of the sale of an ni'licle suitable only for ivligious pni'itoscs would itf course l)e unconstilnlioiKtl. TIIK EXCI::«S1VE USE OF I NTOXU'ATl X(; LIQUORS. §§ •22.')-l2L'7. 5- 225. Intoxication.-'''" — There can hai-dly l)e any oeeasion for dealing witli siiii])]!- iiitnxical ion except wlierc il dislni-hs and aniiDys third parties; so the Criminal ('(ule of Illinois punislies only an "intoxicated person found in ;iny street, liigli\v;iy, or other |)ublic place disturl)ing llie peace of the public, oi" oi' his own or any other i'amil\' in :in.\- private building or place. "- N'ojunlary intoxication not thus agiir.ivalrd may liowevei- be made an olTense,^ for il can hardily he conceded Ihal, as one court has intimated, getting druidi is one of the inalienable ♦TStttlo V. Wniy, 72 N. C. 2.'J3, i Crimiiuil Cod.-, S .3 L. uMit'hiKiin, LawH (»f 1893, No. K. A, 144. § 229 FEDERAL CONSTITUTION. 215 provisions of the federal constitution require consid- eration : 1, those bearing on citizenship and equality ;''^ 2, the protection of the right of property ;i'' 3, the clause securing to the United States the right to regulate commerce with foreign nations and among the states and with tin- Indian tribes.^" It will be sufficient here to treat of the right of citizenship and the freedom of commerce, the principle of equality and the protection of property being fully discussed in subse(iuent chapters.^ ^ § 229. Right of citizenship. ' 9— The exercise of the power to control the right to sell liquor by prescribing per.sonal quali- fications or by prohibition does not abridge the privileges and immunities of citizens of the United States. " It is undoubtedly true that it is the right of every citizen of the United States to pursue any lawful trade or business, under such restrictions as are imposed upon all persons of the same age, sex and condition. But the possession and enjoyment of all rights are subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, good order and morals of the community. . . . The police power of the state is fully competent to regulate the business— to mitigate its evils or to suppress it entirely. There is no inherent right in a citizen to thus sell intoxicating liquors by retail ; it is not a privilege of a citizen of the state or of a citizen of the United States. As it is a business at- tended with danger to the community, it may, as already said, be entirely prohibited, or be permitted under such conditions as will limit to the utmost its evils. The manner and extent of regulation rest in the discretion of the governing authority. That authority may vest in such officers as it may deem proper the power of passing upon applications for permission to carry it on, and to issue licenses for that purpose. It is a matter of legislative will only. As in many other cases, the officers may not always exercise the power conferred upon them with wisdom or justice to the parties affected. But 15 IV 2, 1 and Fourteenth Amend- i^ § 539, 542, 564, 655, infra. „ient. * ''■•See. also, § 702, 703, 707, 709, i« Fourteeuth Amendment. 710. 17 Constitution I, 8, 2. 216 INTOXICATING LIQUOKS. § 230 that is a matter which does not affect the authority of the state, or one which can be brought under the cognizance of the courts of the United States. "20 § 230. The freedom of commerce.— In 1827 the decision in Brown v. Maryhind-i established the principle, that an im- porter of goods from foreign countries had the right to sell them in their original packages, free from any restraint or . burden imposed by state laws, and that the power of the state attached only after the original packages in the hands of the importer had been broken and the goods had become mingled with the general mass of property within the state. It was at the same time recognised that the state could exercise its police power over infectious and similarly dangerous articles, on the ground that they^were not subjects of commerce and hence not protected by the federal constitution. J- 231. License cases. — In 1S47, a number of eases collec- tively known as the License Cases-2 -^ere decided without an official court opinion, each of the judges stating his personal reasons. The decision upheUl statutes of ^Massachusetts re- (jniring a license for the retail sale (in less 1b;in undivided lots of 28 gallons) of wines and spirituous li([uors, notwith- standing the fact that such liquors might be imported from abroad, since the state law acted upon the article after it had passed the line of foreign commerce, and became a ])art ujiiield ;i statute of \i'\v liaiiipshire re- «|uirinu' a license ("or the sale by Mh- iinpoitei" in liu' original package of spirituous licjUoi' iniporleil I'l-oni Massachusetts. Chief .rnsticc Taney and -lustice Caliou. with whom Justice loCrov! "liriHtPHHon, 137 V. -•-• .T Fr<.\v. .^OJ. H. 8fi. -•••!< 'liiof .TiihCuc Taney, )>. r>77. 3> 12 Wb. 419. §232 FEDERAL CONSTITUTION. 2\1 Nelson concurred, upheld the act on the ground Uiat tlu- slali- had a power subordinate to that of Congress to Icj^ishitc in matters of commerce for the protection of local interests, and that this power might be exercised in the absence of any federal regulation;— Justice McLean on the ground that the principle of Brown v. Maryland applied only to imports from toreign covintries and not to imports from another state. Justice Daniel questioned altogether the somidness of thi* principle laid down in Brown v. Maryland, and Justice Wood- bury insisted that regulation of sale after import was not inconsistent with the freedom of commerce. In 1888 in Kidd v. Pearson^^ the Supreme Court held that the power to regulate commerce did not extend to manufacture, though the manufactured article was intended to be exported, and that it was therefore within the power of a state to pro- hibit the manufacture of liquor without any exception in favor of intended exports. Earlier in the same year, 1888, the Supreme Court had held, in Bowman v. Chicago & N. W. R. Co.,^"' that a state could not prohibit the transportation of liquor from one state into another, the question whether it could prohibit the sale after importation being left open.2<5 § 232. Leisy v. Hardin and the Wilson act.— In 1890, in Leisy v. Hardin,^" this latter point was determined against the power of the states, and it seems that under this decision a license required of an importer of liquor for sales in original packages would have been unconstitutional. In Walling v. Michigan's a discriminative license was held invalid, but the case strongly intimated that a non-discriminative license re- quired of all liquor sellers alike would be valid as to those selling imported liquor. So also it is very probable that it was competent to the states to forbid the sale of liquor in original packages to intemperates.-^ Shortly after the decision in Leisy v. Hardin, in the same 24 128 U. S. 1. 7 L. E. A. 183 ; State v. Croodon. 78 25 125 U. S. 465. Towa 556, 7 L. R. A. 295. 20 Before the decision in Leisy v. 27135 U. S. TOO. Hardin some state courts held that 2SII6 U. S. 446. the decision in the Bowman Case 29 Common\^ealtli v. Zolt, 138 Pa. did not affect the prohibition of 615, 11 L. E. A. 602. sales. State v. Fulker, 43 Kan. 237, 218 IX TOXIC ATixc; liquors. § 233 >ear, Congress passed a statute^^ providing that "all fer- mented, distilled or other intoxicating liquors or liquids trans- ported into any state or territory, or remaining therein for use, consumption, sale or storage thereni, shall, upon arrival in such state or territory, be subject to the operation and effect of the laws of such state or territory enacted in the exercise of its police powers, to the same extent and in the same manner, as though such liquids or liquors had been pro- duced in such state or territory, and shall not be exempt there- from by reason of being introduced in original packages or otherwise." The constitutionality of this act was upheld in Wilkinson v. Kalirer.-" In Rhodes v. lowa^^ n ^^g jigi^i that the power of the states under the Wilson Act did not attach until the goods imported had reached the consignee. It had been held in Tiornan v. Rinker,"^-^ that a state in its liquor legislation may not discriminate in favor of the product of that state as against the products of other states, and in Walling V. Michigan, •"^•^ that wholesale dealers of other states may not l)e discriminated against. v; 233. The South Carolina law.— The South Carolina dis- pensiir\- law passed upon in Scott v. Donald'*^* (which was enacted subsequent to the passage of the Wilson Act) pro- vided that the state commissioner should in his purchases give preference to th<* brewers and distillers of the state, ^^ and that he should liavc i)0wer to contract with grape growers in the state for the sale of their product through Ihe dispensary, ('barging uol more than 10 per cent, profit for handling their wine;''" it also prohibited all importation into the state ex- cept as provided in llic act. thus making it impossible for tlu^ consumer lo iMq»orl i'ov his own use. These provisions wfTo declared uneonstitntioii;d as discriminating against •'"Known iiH till' Wilboii Act, Au^- void;" special provisions in favor U8t 8, IHSM), I Siip[>. Rov. Stat. 775'. of native wines or cidor seem not 31 140 U. 8. M;!. unusual, so Massacliusetts R. L. ch. 32 170 U, 8. 41i:. 10(1, Hcr. I, ImIiI unconstitutional. 33 102 TT. 8. I'J.'l, IMKO. See, also. ''„m\v. v. IVtrani.li, (i(i N. K. 807. State V. Stncker, .'')8 Iowa, 496; Mr- ■'* 1 10 U. 8. 44(). C'miry v. State, 73 Ala. 480; State nr. ifi.r, n. 8. 58. V. MarHh. .17 Ark. :{.%(? ; State v, 3nSec. IR. Nash. 5»7 \. <'. .''.M; Mdiuir.' v. -fT Sec. 23. State, 42 ni,;,, «» r,:\(), "perluips § 233 FEDERAL CONSTITUTION. 21!) products of other states while recognising liquor as a legiti- mate article of commerce. The provisions condemned in Scott v. Donald were there- fore eliminated from the law. It was held in Vance v. Vander- cook Co.-"^*^ that under the Wilson Act the state in the exercise of the police power might reserve to itself the exclusive riglit to sell liquor after its arrival in the state, so long as any citizen was allowed to import for his own use, but that tlie latter right could not be qualified by a condition that a sample should first be submitted for approval to the state commis- sioner, since the inspection of the sample was not an inspection of the imported goods and the restriction therefore untenable as an inspection law. With this exception, however, the act was upheld as consistent with the commerce clause of the constitution. 38 170 U. S. 438. CHAPTER IX. PUBLIC MORALS (CONTINUED). VICE AND BRUTALITY. SEXUAL VICE. §§ 234-246. § 234. Purpose and scope of police control.— The problems presented by sexual immorality dilt'er considerably from those with VN-hieh the police power has to deal in case of gambling and drink. The gambling instinct and the desire for drink are not recognised as useful or necessary in the economy of civil- ised life, although a moderate indulgence in them is regarded by the majority of people as harmless and unobjectionable, and as a source of rational pleasure. On the other hand the sexual instinct is essential to the perpetuation of the human race, and the stimulation of sexual attraction cannot be con- (U'mned ; but custom, the universal sense of decency, and the subserviency to its natural purpose, set bounds to the indul- gence of sexual passion, Avhich is.immornl only in so far as society derives no benefit from it. According as the element of sexual intercourse is directly or indirectly involved in immoral practices, we may distinguish lasciviousness and obscenity from fornication and prostitution. LASCIVIOUSNESS AND OBSCENITY. §§ 235-239. §235. Lewd and lascivious conduct. — Words, gestures or acts suggestive ol" iinpiirc thoughts or jiassions. if indulged in in private, are bi-yond the cognizance of the police ])ower; if in public. tlu'V arc aj)t to constitnlc disorderly conduct or ii nuisance.' The olVcnce of lewd and l.-iscivions cai'riage or Ix'havioi", u|Hii ;iiid gross lewdness,- or open lewdness,-' if not ainoinding ti» Innncation oi- prostiint ion. can llierefcnv^ hav(^ fndy a liiinted scope. It li;is hccn lield llwil ncl.s ol' indecency coiiimitted ill tlic prcsi-nce ol' ;iiio||ier pei-son willioiit his oi* her con.senl. ;ire open lewdness.' wliilr in llic i)i'cseiice of a coiiKcnting par(\' lhe_\- would nndoulttedly 1 onsidered as private. Snch ads, if the\ stoji short N. Y. fVnal ("o«lc, Hoo. .TS.'). ■» Comnionwojiltli v. Wnrdcll, 128 ■■J Mnjw.rh. 212, Hoc. I'J. .\ijiHH. r,2; Fdwicr v. Stntn, .■"> Day 3 IIIinoiH Crim. (' Fed. v. llickiin conld not be published as 45>7 ; United States v. f'larke, .18 part of ;» rejKirt of the judicial pro- Fed. 73U; United States v. Smith, 4.') ceedinys in which the pamphlet was Fed. 476; Commw. v. Landis, 8 part of the record. Kej^ard for ncession since the obscene matter with decency on the record may be must appear in the evidence. In described in a more general way, England the concession is not made, and then an averment of the too Bradlaugh v. Eeg. 3 Q. B. 0. 607. great obscenity of its words will be i" 96 N. Y. 408. accepted instead of their tenor." is 30 N. Y. Suppl. 361. iM L. R. A, Bishop New Criminal Procedure II, 110. Sec. 790. This seems a needless 224 "^ICE AND BRUTALITY. § 239 eluded by serious scientific purpose, and the legitimate pursuit of science is therefore safe from the charge of criminal ob- scenity or laseiviousness. The investigation and publication of truth for the promo- tion of human knoAvledge is of the essence of science, and must be beyond the interference of the police power. Truth and science are, however, not convertible terms, and it cannot be admitted that every true fact is a contribution to science. "Whether the statement of a fact is a contribution to science or not must depend chiefly upon the form and circumstances of the statement, and commonly accepted canons will gen- erally furnish the safest guidance. It is obvious that if truth were a complete justification the prohibition of obscenity would be entirely futile. The interest of public decency demands that even in the legitimate pursuit of truth the channels selected for the spread- ing of truth be those least harmful to the connnunity, and the traditions of science have accepted this condition, which cannot be regarded as a limitation of true liberty.^ ^ § 239. Art and literature.-'*— Here, too, the purpose should be regarded as controlling, since as a rule it will determine the general effect. An author may depict immorality for a moral purpose, and if he does it in such a way as to impress its evil character upon his readers there can be no danger to I)ublic morals ;2' but if he makes vice alluring, it is just to hold that he must have contemplated the probable consequences of his work, and the avowal of a moral purpose need not l)e ;i('ci'j)t('(l as conclusive. A high degree of artistic- Ix'auty is ijicoiisisttnit with the idea of ob.sceriity to which grossness is essential. The siig- gestivenoss found in dassirtal works of art aiul litcratui-e is gcinTaliy cxcuscmI mi this ground : but even where they have ii()t this saving cli'incMt, it is rightly lu'ld that their contiinied I>ublicalion is justifi('<| by tticir historical of cultui-ai iiit<'rcst, l>rovidc<| that the legitimacy of the purpose appeal's in the forms and chaiuiels of puhlieation. Cnstoni is the best critei-iou "* rommw. V. liMrxliH, S I'liila. iiiiniHirntivc ((mil of S.ixony Hcltiiif; 4.'>3; United Htntes v. ('hcHman, 10 uWuU>. jiti order forhiddiiiff I lie pcr- I'eil. 4117 foriiiiiiicn of' Tolstoi 's Powerw of 2" See, .iImii, tj '2^^. IX'irluicHH is instructive on tliis point. »> A deeiHion of tlie liijrlicnl :i.l- f.lnlv 17. IlldO.) § 240 ILLICIT INTERCOURSE. 225 of decency, and in the absence of positive enactment established conventions should be regarded as i)art of the law. Upon this ground the nude in art is free from ol>jeetion. There is, how- ever, much in art and literature that is merely tolerated, although in grossness or suggestiveness it goes beyond the canons of firmly established tradition; with regard to pro- ductions of that kind not even a long-continued policy of non- interference will necessarily constitute a legal sanction. These tests may be applied to judge what is obscene or indecent under statutes or as a matter of common law. The constitutional power of the legislature imdoubtedly extends to the prohibition of publications which are immoral without being obscene ; but it seems that where the word immoral occurs in statutes, it is used rather in the sense of obscene. ILLICIT SEXUAL INTERCOURSE. §§240-246. § 240. Notorious cohabitation.— Sexual intercourse outside of marriage was a matter with which the common law did not concern itself, but it was an ecclesiastical offense. In some states fornication, without the aggravating element of adultery, has been made criminal, as a rule, however, only where the illicit relation is open, public and notorious.- ^ The mischief against which the law is directed is the scandal arising from a disregard of the established standards of pro- priety. This test should be applied to determine whether a relation is to be held open and public within the statute. Living together in the same house may be a necessary in- gredient to the offense, where the statute speaks of living together ;23 but it has been held that evidence tending to show occasional acts of intimacy between a master and his servant will not establish the offense, since their living in the same house is not in itself scandalous.^'* Generally speaking, the relation must be known to others, and must be such that the fact of intimacy may be inferred. ^^^ § 241. Autonomistic marriage.— A peculiar form of unlaw- ful cohabitation exists where parties live together in a relation which they conceive to be as moral as marriage, but which is 22 III. Crim. Code, Sec. 11 ; Mass. =3 Quartemas v. State, 48 Ala. 2fiO. Rev. Laws. eh. 212, Sec. 14, without 24 State v. Marviu, 12 Iowa. 4lt!>. this ingredient ; N. Y. without pro- 25 Crane v. People, 1 68 111. .lOf,. vision. 15 226 VICE AND BRUTALITY. § 242 not recognised as a marriage by the law, so where the forms prescribed by law are not observed in forming the relation. By the common law as understood in most of the states, the compliance with statutory forms is not essential,-^' though their non-observance may be visited by penalties, the cohabitation not being made unlawful thereby. But the statute may make even such cohabitation unlawful, punishing the disregard of provisions embodying an important statutory policy ; it M'ould not, however, be "lewd and lascivious" cohabitation.-^ In Kansas parties to a so-called "autonomistic" marriage were punished because they did not observe the civil ceremonies prescribed by statute, the words "living together as husband and wife without being married" being interpreted as mean- ing "without having been married as prescribed by law." The law dispensed with the presence of a minister or civil magistrate in the case of Quaker marriages, and it must appear • luestionable whether a privilege may be accorded to one sect and denied to another. However, it seems, that the autono- mistic marriage was regarded by the parties as freely dissol- uble, so llinl it (lid not in reality constitute a marriage in ac- cordance with the institutions of the state.^''' § 242. Prostitution— Scope and ground of state control.— While unlawful or lewd and lascivious cohabitation is gen- erally treated as a joint offense, prostitution is a species of sexual vice peculiar t<» women. For the purposes of the police power prostitution may be defined as the promiscuous admis- sion of men to intercourse for gain and as a means of livelihood. rnislitulion is a subject h^gitimately falling undcM* the police [lower, on ;i variety of grounds: if it is not chiM-ked it is apt to become ;i public nuisance in its outward manifestations; its existence is antagonistic to iii;itriage, and tends to de- moralise Ibe cdiiiiiiniiily ; |ii-ost itutes iire a|»l to bcvome a liurdcii to Ibe public wlieu IhcV ai"e MO loMLI'el' ;\\)\i' to ply their trade; Ibe haunts oi' vice ;ire ;ilso ;ipl lo lie tlie haunts of eriirie; and the venereal diseases which ;ii'e spi-e.id chiefly by ()rostitutes i'inl;inLrer tlie hcidth of inii(»ccii1 women and cliildreri. The (iiit\\,ir-il iii;inir"'stations of Ibe s(»cial evil, sti'cel wallc- ■-'■'• Hi«li(i|f, Mjirriiiyc iiinl Divnrro, -" CommoiiwcMlfti v. MiiiiHun, l'J7 § 449 ; .M.!iHf«T V Mdon-. ItO U. H. TH. MasH. 'I.ltt. ■-•'State V. VViiikcr, 'M', K.m. L".t7. § 243 PROSTITUTION. 227 ing, solicitation on the streets or from windows, etc., are nuisances at common law and generally fall within the prov- ince of the municipal ordinance power. § 243, Systems of legislation.— Prostitution is a social evil from which no civilised country is free, and its practice goes back to very early periods of history. In the mediaeval city the brothel was a recognised municipal institution, and its freedom was accorded by the authorities to visiting princes and other honored guests ; no stigma appears to have attached to intercourse with prostitutes. From the end of the 15th century these licensed and semi-official houses gradually dis- appeared, largely as a consequence of the ravages of venereal diseases which spread through Europe about that time in their most virulent form. In England brothels were licensed until the time of Henry VIII, so it was enacted by 14 Richard II that no such houses should be kept in Southwark, but in the common places there- for appointed. Prostitutes were freely dealt with by executive authority.2^ At present the status of prostitution is in most countries abnormal owing to the fact that it is admitted to be in- eradicable, while yet the law does not dare to sanction it. From this results an administrative practice which is directly contrary to the law. In Germany the penal code forbids the keeping of disorderly houses, yet in many cities they are tolerated and supervised by the police. In France there is no legislation touching prostitution, ex- cept that a statute of 1791 authorises municipal police officers to enter at any time places notoriously given up to debauchery. Otherwise the whole matter is left to the mayor, who acts under his power to take all measures that may be necessary for public order and morality. In Paris (and the Paris regu- lations have largely been adopted by other cities) prostitutes must cause themselves to be registered at the police office. This registration may take place on their own motion or by official order. It is cancelled only if the police is satisfied that the course of life of the woman will be changed. Regis- tered prostitutes are subject to police regulations, the principal 28 See instances given by Coke in III Inst. 205. 228 VICE AND BEUTALITY. § 244 liability being that to periodical physical examination. There are, however, many other rules as to conduct on the streets, etc., violations of which are punishable by imprisonment. Houses of ill-fame exist under permits, and are subject to con- trol as to inmates and as to the way in which they are con- ducted. They may be closed temporarily or permanently. The mayor may forbid the letting of lodgings to prostitutes and bad characters, by virtue of the general police powers given by the municipal law of 1884. It has been contended that registration without the consent of the woman by mere administrative order is not due process of law ;2^ but the exist- ing practice is firmly established. In England legislation exists for a number of places (ports and garrison cities) permitting prostitutes to be placed under police control by order of a justice of the peace, and to bo subjected to periodical physical examinations. The legislation is sanitary in its character, the statutes being known as con- tagious diseases acts. Outside of these places prostitution exists merely by sufferance. In America the policy of regulation, implying a legalisation of prostitution within defined limits, is almost everywhere re- pudiated, and the police power operates entirely by measures of repression and restraint. As an exception it may be noted that Idaho gives power to municipalities to regulate as well as to supi)ress houses of ill-fame. •'''' The measures of restraint are directed eitker against pros- titutes or against plact^s of prostitution. !? 244. Measures against prostitutes.— A common prostitute as a iMilc answers the description of a vagrant, for she is with- out legitimate means of support and is apt to manifest her iHcgitimatc livelihood in an ollVusive manner.'" She may thus be dealt with under the laws against vagrancy, vagabondage 20 Soe .Ttnl(jniont of MaRiHtruto of Rpcction, siipprcssion iKinjr (lie only RhfiniH, n'j»rint('(l in Aimdh State mctlKifl indicatcl \,y tlio city net lU'tMilntioii (if Vice, p. 29:2. for ,' witli lliis m:if1(>r. ("ity ••>■' LawHlH'MJ.p. L'O.*). Art V, I, X... .If,; Act iMarcl. '27, In Illinois ji statute was spocijiily 1S74. onacfed to make it unlawful fur mn- •'" Comnuinwoaltli v. Dolierty, 1.37 nicipal autlioriticH to frrnut liccnscH Mass. LM.*}; Cominonwealth v. Brown, lor tlic keeping; cif Iiouhch of prowti- 111 Mass. 78; Now York Tcncnioiit, tution or to provide for medical in- llouse Act, l!t()l, § in. § 244 PROSTITUTION. 229 and criminal idleness, which are to be found in all tlie states. Prostitution may also be made a distinct offense, and living in a house of ill-fame may be punished as prostitution.''- The prostitute being subject to the penalties of crime is entitled to the safeguards of criminal procedure. She may be arrested and punished by fine or imprisonment, and there is authority for holding that upon conviction she may be required to give surety or recognizance for good "behavior.^*-^ But it would not be possible to exercise this power in such a way as to allow her to ply her trade upon prescribed conditions of submission to control, for since the main part of the understanding, namely, that she should continue her offense, would be illegal, all conditions annexed to it would be void. The punishment inflicted upon her must be in conformity with the law of the land, which does not know licensed illegality conditioned upon the acceptance of a diminished status of personal liberty. In Maine it was formerly held that a prostitute might be confined in a workhouse by administrative process, not by way of pun- ishment, but as a measure for her own benefit and for the protection of the community.^'* This view, which would sweep away all the safeguards of due process of law, was later on declared to be inconsistent with the Fourteenth Amendment, and the decision was overruled. ■^■'' Measures for the repression of prostitution short of punish- ing the act or occupation itself may be directed against all women or only against prostitutes. Thus women may be forbidden to serve as waitresses in saloons or dance halls, and a provision has been sustained pro- hibiting them from frequenting saloons after midnight.^^ The anti-wineroom ordinances forbidding the serving of liquor in private apartments of saloons or restaurants to less than four persons, unless they are* of the same sex, or forbidding the maintenance of such apartments, belong to this class.-*'^ Measures directed only against prostitutes may encounter the difficulty of proving the fact that a person is a prostitute ; if, however, that is proved or not denied, the further difficulfy ■ia Webber v. Harding, 155 Ind. 35 Portland v. Bangor, 65 Me. 120. 408, 58 N. E. 533. -o Ex parte Smith, 38 Cal. 702. 33 Bishop T, § 945. 3- State v. Barge, 82 Minn. 2.56, 3* Adeline G. Nott's Case, 11 Me. 53 L. R. A. 428; Chicago ordinance 208, 1834. Dec. 9, 1901. 230 VICE AND BRUTALITY. § 245 arises of recognising and thereby in a manner legalising the status. An ordinance forbidding prostitutes from being on the street between 7 P. M. and 4 A. M. Avould seem free from the latter difficulty ;38 an ordinance requiring them to live in certain districts would present it very strongly.^^ The same objection would apply still more to physical examination. Tt has been suggested that prostitutes might be subjected to a stringent medical control under appropriate grants of power to health authorities. The theory would be that a general power to quarantine, etc., for the prevention of con- tagious disease might be used for this purpose. But our courts have uniformly held that an interference with the liberty of the person and body under the sanitary power is justified only in cases of imminent danger, as e. g. in epidemic diseases, and the danger of contagion from prostitutes is certainly not of that character. The prevention of the spread of venereal disease would fall within the province of the police power, but it Avould require such specific regulations as would practically amount to a legal recognition of prostitution— the very thing which our legislative policy Avill not concede."*" As a matter of fact the police exercises a considerable con- trol over prostitutes. A woman, who is without legitimate means of support, still more a woman who walks the streets and solicits, is liable to be arrested at any time upon the charge of vagrancy. This power of arrest is a weapon which may be used to enforce the observance of such rules as the police deems essential to public mornls or decency. It is clear tliat this result is accomplished by suspending the enforcement of the law. — an extra-legal condition, wliich can be ni>plied oidy within narrow limits and cannot take the place of avowed regulation. « si 245. Houses of prostitution.— Houses of prostitution are nnisaiici's mI coiriiiion l;i\\," no innlter liow quietly tliey are ■"•1)111111 \. » (irn. for iiHo of Cat- ConiinisHioncr Taft, in ;i lolcj^rnm th'tfHlnirjj, 20 Ky. L. FJrj.. 1649, 43 to tho Secretary of Wiir, .i.lmill.Ml L. K. A, 701, 49 H. W. 813. tliat Hince Novombor, 1900, to dieck ■■"'!. 'Hofe V. N'ew CIrleaiiH, .ll La. tlie Hpread of venereal diseaHC, Ann. 9.'{. known proslilnles were snlijected to «" Under military anlliority Hiidi ((rtidcd examination. n Hyntem was afjopted in Manila; • ' .'} I nst. L'OG. § 245 HOUSES OF PROSTITUTION. 231 kept;^- ill this respect they are like {j:aiiiing houses and dilVcr from places whei-e li(iuor is sold which become disorderly oidy by the manner in which they are kept.^-' The nuisance charac- ter arises not only from the scandal which attaches to the house, but also from the temptation which it offers to indulge in practices which corrupt morals.^ ' The statute may require that in order to constitute a house of ill-fame it must be shown to be of evil repute as well as to be used for immoral practices in fact,''^ but reputation alone can neither be made the gist of the offense, nor conclusive evi- dence of the offense ; it may even be questioned whether the fact may be found from the evidence of reputntion alone, although dicta to that effect may be found.^" The keeping of a house of ill-fame is generally a criminal offense.^^ A person who has let a place to one who uses it for prostitution does not become a keeper of a bawdy house by failing to give her notice to leave,'*^ although a statute making him liable for such default would probably be consti- tutional.^^ A person cannot be made liable for renting a place to a reported prostitute if he had no reason to believe that she would use the place for illicit purposes; for an absolute prohibition against letting to prostitutes would render them homeless and deprive them of shelter.^o As a nuisance a house of ill-fame may be closed and sup- pressed; but the house itself may not be destroyed, since it is capable of serving a lawful purpose.^^ A house of ill-fame would cease to be a criminal nuisance 42 Bishop, New Grim. Law T, § -^^ Massachusetts Rev. Laws, ph. J087. 212, § 19; Illinois Grim. Gode, § 57; 43 Gommonwealth v. McDonough, New York Penal Gode, § 322. 13 Allen 581. *^ State v. Williams, 30 N. J. L. 44 Commonwealth v. Lambert, 12 102. Allen, 177; King v. People, 83 N. 49 in New York he must remove Y. 587; Commonwealth v. Cobb, 120 the tenant within 5 days after re- Mass. 356. ceiving notice from the board of 45CadwelI V. State, 17 Conn. 467. health. Tenement House Act. 1901. 40 State V. Brunell, 29 Wis. 435; § 144. Drake V. State, 14 Neb. 535; Betts -".o Mimkan v. Weatherford. .•>4 V State, 93 Ind. 375; People v. Tex. 388. Gastro, 75 Mich. 127; State v. Ha- ''^ Ely v. Niagara Go. Supervisors, berle, 72 Iowa, 138. Under the New 36 N. Y. 297; Welsh v. Stowell, 2 York Tenement House Act, § 145, Dougl. (Mich.) 332. corroborative evidence is required. 232 " ^'"^^'^ -^^D BEUTALITY. ^ 246 if it were licensed. Laws and ordinances go to the extent of forbidding such houses in designated places, perhaps even forbidding them outside of certain places; this, however, does not necessarily logalise them in the places not specially pro- hibited. In L'llote V. New Orleans^^ the ordinance expressly provided that its provisions should not be construed as sanctioning or authorising houses of ill-fame in the district, outside of M'hich they were specially prohibitetl. While prac- tically this operates as an assignment of limits, it does not so in law. A regulation of houses of ill-fame by license would, however, not be unconstitutional/"'-^ §246. Practices in aid of prostitution.— As regards prac- tices incidental or subservient to prostitution, the law may punish persons who procure or furnish the occasion for illegal intercourse, especially if they do so for gain. This is done by the German Penal Code, while our laws are generally silent with regard to procurers and procuresses. In many states their practices fall under the definition of abduction. Recently a statute of New York has declared nuile persons who live on the earnings of prostitutes to be vagrants.^"* The frequenting of houses of ill-fame may be punished as well as the keeping of them,^'^ though not covered by the com- mon law ; for it can hardly be denied that he who resorts to a prostitute aids and abets prostitution. However, as is usual in the analogous cases of drinking and gambling, the police power confines its restraints to the person who acts for gain and as a matter of business. The prohibition against advertising or selling means, in- struments, etc., to prevent conception is sometimes classed with provisions against obscenity; moi'e j>roperly it should be regarded as a measure to remove inducements to illicit inter- f>2 177 U. 8. 587. See, also, § 170, from 1870 to 1874. In San Aii- 089. tiuiio houses wore liccnsol in ISS!) f'^ State V. Clarke, .54 Mn. 17. It uml iirostitnlcs woro cx.-unincil; iri Htatcfl by Cliapin, Miinifipal S.-iii- attor. 10 ii llis lliis niclhod dl" itation in the United States, tliat le^nilation w.is aljandoned. It in tlierc arc nine eities which attein|)t also staled that tlie (irdinances of \>y lirenses or fines 1o restriet Ihr I'enver provide that llie lic.-ilth com- niirnher of honses of prostihilion, inissinncr may examine prostitutes, and that three eitirs eonfine HU\. Laws, cli. ■I IVopIp V, Taylor. 90 Midi. .'")7(?, _'1L', Sec. 79-8(5; rilinois (Vim. Code, L'l T.. If. A. L'H7. Soc, Wl. < .Now Vcirk I'cnal ((kIc, S ■»•■>><; '" FlliiuiiH Act of 1S99; MaHsachu- llliiioiH Trim, Coile, § L':j.'"». hoIIh Itev. fiawH, eh. 'IVl, Sec. 124, if '' llliridiH Crin). Code, % 'JSH. flie doforiTied pcrHoiis aro minors and " lllinoiH ('rim. Code, § L'31-234. inHaiie, or if deformify is artificially ' Made a felony in Maine liy Act produced. of 1897. § 249 CEUELTY TO ANIMALS. 035 glorification of crime boinj^ both brutal and scandalous. It is forbidden by the statute of Illinois last cited. The statutes of some states forbid the publication of the lives of criminals/^ or the sale to minors of publications de- voted to criminal deeds.^- There are descriptions of tortures and horrors which are not better than obscene publications and appeal to very similar instincts; but as they do not fall under the definition of the obscene, they would require special statutory provision. News- papers which are largely given over to scandalous matter have in some states been declared to be criminal publications.*^ § 249. Cruelty to animals— Vivisection.*^— Animals are not protected against maltreatment by their owners at common law, except that excessive crueltj^ committed in public may be indictable as a nuisance, offending public decency.*'^ Actual cruelty is now forbidden in probably all the states, a peculiar feature of this legislation being the partial reliance upon voluntary associations for the enforcement of the law.*" Where the law forbids cruel ill-treatment, abuse and torture* (as in England) without further specification, it is necessary to determine what is cruel. There are practices which while they inflict great pain upon the animal, render it more useful or valuable. It has been held in England that a painful opera- tion making the animal more fit for food (spaying sows) is not cruel.* '^ On the other hand, there is a conflict of authority as to the dishorning of cattle which increases their marketable value.* ^ The decision in the Callaghan case which sustained the practice, laid stress upon the omission of the word "wan- ton" which was found in a former statute. A higher market- able value does not necessarily indicate greater usefulness, as the price may be dictated by fancy; the docking of tails of horses is expressly forbidden by some of our statutes.*^ 11 Alabama, 1894. Iil2, Sec. 70-77; Illinois Crim. Code, 1- Massachusetts Eev. Laws, ch. Sec. 50, 57. 212, Sec. 21. 17 Lewis v. Fermor, 18 Q. B. Div. 13 State V. McKee, 73 Coun. 18, 532. 41t L. E. A. 542; State v. VanWye, is Brady v. IMcArgle, 14 L. E. 136 Mo. 227. (Irelaud), 174; Callaghan v. So- 1* See, also, § 152-154. ciety Prev. Cruelty to Animals, 16 15 Bishop New Crim. Law I, Sec. L. E. (Ireland), 325. 597; State v. Karstendiek, 49 La. i:> Illinois, 1891, Massachusetts, Ann. 1621, 39 L. E. A. 520. 1894, etc. iG Massachusetts Eev. Laws, ch. 236 VICE AND BRUTALITY. § 249 We should not speak of "wanton'' cruelty where the owner merely tries to save expense and is callous to the suffering which he inflicts upon the animal. Our statutes, however, expressly prohibit practices of that character, and prescribe positive regulations as to the care of cattle in stockyards or while in course of transportation on railroad cars.-*^ It is also now frequently forbidden to abandon disabled animals, and animals found abandoned and disabled beyond recovery for any useful purpose, may be killed.-^ Provision is generally made for compensation of the owner, if the animal has any value. The owner may, however, not be deprived of the property in the animal or its carcass without judicial process, unless his neglect of the animal amounts to abandon- ment of ownership. 2- Legislative provisions may ordinarily extend to the regula- tion of methods of killing animals. Where, however, a partic- ular method of killing is prescribed by the ceremonial law of some religion, the cpiestion whether it is cruel or not can j)robably not be determined arbitrarily by the legislature so as to conclude the courts. In Switzerland the slaughtering of animals without previous stunning (in accordance with the ]\Iosaic Law) was prohibited by constitutional amendment.--'* Vivisection for scientific investigation is not within the spirit or intent of the laws forbidding cruelty to animals, unless needless suffering is inflicted. As a possible subject of police legislation, vivisection presents the problem of two conflicting claims of humanity: the freedom of scientific research, and the I)r()tecti()n oi" sentient beings from suffering and torture. If possible, both must be reconciled; hence the prohibition of vivi- Kcction practiced williout suffering (by use of anaestlietics) would be unreasonable. Where the torture inflicted is un- doubted and cxtrcnic. th(! considerations are closely balanccMl, and Die decision should be with tlu' legislature. The con- sensus of civilised nations is in favf)r of allowing the practice, 2" lllinoiH Orim. (^ode, Sec. 50; U);cnt8 of .i jirivate society, is ques- .Ma.HS. ell. JIJ, Soc. 73; Unilcil ti(iii!il)Ic. SlatoM I{«'v. Sliiluk'H, 4:5H()-43!»(). -^ l.oiwli v. Koehlor, Ml I nd. 2> MaHHUchiiBctts Rev. LawH, di. 1278, 35 L. R, A. 682; King v. Hayes, (•5, Hcc, 13. Till' i)r()viHioii «r tin- HO Me, liOO. Ma.HHachiiHi'ftH Htatiite aeconliii^' to -'•'' Art. L'.'ibiH of Swins Federal wliidi oxfhiHivi- iiowcr to kill tlin ''onHtitution. uiiimal is given to the oQlccrH and i< 250 CRUELTY TO ANIMALS. 237 though, if possible, under regulations mitigating lU ._-vils. in England domestic animals may be experimented upon only under a permit from a Secretary of State. 2 « In (jcrmany regulations have been issued for vivisection at universities, which are without exception under state control. They allow vivisection for serious research and where im{)ortant for pur- poses of instruction. Its practice in lecture rooms is specially restricted, and it must be conducted by instructors or under their responsibility. Where lower animals are equally avail- able for purposes of demonstration, higher animals may not be used. Anaesthetics must be used when not inconsistent with the nature of the experiment.-^ The cruel treatment of animals for sport has already been referred to. Wild animals not being property, the legislature controls the right to hunt absolutely and may forbid hunting if deemed cruel. In Massachusetts, letting loose a fox to be chased and mangled by dogs has been held to be indictable cruelty .2^ The using of pigeons or other tame birds as targets for purpose of amusement or as a test of skill in marksman- ship has been held to be within the statutes against cruelty in North Carolina,^^ and Colorado, ^s while in Pennsylvania^" and Missouri^^ the courts, under the circumstances of the cases, reached a contrary conclusion. But the- practice may un- doubtedly be prohibited by statute as wanton and serving no useful purpose that could not be otherwise accomplished.-''' The prohibition against the killing of song birds falls under this head. ^2 PUBLIC AMUSEMENTS. §§ 250-251. § 250. Ground and scope of police control.— Public amuse- ments have engaged the attention of the police power to a limited extent, chiefly in so far as they are conducted in public 24 Act of 1876. 27 state v. Porter, 112 N. C. 887. 25 Similar restrictions are advo- 28 Waters v. People, 23 Colo. 33, cated in the United States, and a 33 L. R. A. 836. bill to regulate vivisection in the 29 Commonwealth v. Lewis, 140 District of Columbia has been Intro- Pa. St. 261, 11 L. E. A. 522, duced into the Senate. See copy 3o State v. Bogardus, 4 Mo, App. of this Bill in Albert Leffingwell, 215. The Vivisection Question, New Ha- ^i Massachusetts Rov. Laws, di. ven, 1901. 212, Sec, 78, 26 Commonwealth v. Turner, 145 32 New York Forest, Fish and Mass. 296, 14 N, E. 130. Game Law, § 33. 238 VICE AND BEUTALJTY. ^ 250 places, assume the form of gambling-, are connected with drink- ing, encourage sexual vice, or are obscene or brutal. Pro- visions involving either of these elements have been noticed before. It is recognised in a general yvny that there is a possible tendency toward abuse or disorder inherent in public amuse- ments,^^ and upon this ground the power very generally vested in municipal corporations to license them is justified. ^^ Their tendency to encourage idleness has also been relied upon as a ground of restraint, and an old law of New York, still on the statute books, entirely forbids the exhibition or performance for gain or profit, of any puppet show, Avire or rope dance, or any other side shows, acts or feats which common showmen, mountebanks or jugglers usually produce or perfonn."-'' Amusements are public where admission is promiscuous and not based upon personal selection. A private dancing school has been held in England not to be a place kept for public dancing, although run for hire and gain.^^ Under a numicipal power to license, regulate and prohibit amusements, it has been held in Illinois, that picnics arranged by private societies may not he interdicted as nuisances irrespective of the way in which they are conducted.^^ As a rule it does not make anj'- difference for the purpose of the police power, whether the entertainment is provided liy the public themselves (gaming, dancing, etc.) or furnished to them in the form of exhibitions. As public dance halls easily Ix'come centers of vice, they arc sonK^inics made the subjiM't of special provisions, and masked halls to which admission is obtained upon payment of money, etc., may be entirely for- bidden.-'^ The (Jernian law distinguishes between entertain- •i-i Wclcli V. St. .well, 'J l)uii;,rl. •in 1 «. St. GGO, Sec. 1. (Mich.), rWL", 1H4(5; " TIiouhjiikIs ..f ••'"T^illis v. Biirf;li;ill, 12 Esp. 7:2-J. VdiiiiK men are hired to our jmiI)!!"- •'" Uosplaincs v. Poycr, l'J3 111. flieafrcH, in eun»er|iienee ol' tlicir IMS. tteitiK file reHort, ni;,'litly, of llic •"* iMnss. ili. ]{)'.], Sec. 175. Entcr- |tro(liyiite and ahandoiuMl ; tills is a taiiimcnls in places wlicrc ll(|ii(ir is iiuiHan<'e, " sold are subject to absolute coiitiol, ■'* lllinoiH F^ev. Ht. ('ities V, 8 1, :iiid some HtateH forbiil entirely No. 41, 't'l ; MaBH. Hcv. Laws, cli. tlie sale of li(|iior at tlicati'ical per- ]()2, Hrr. inS-lMd; HoHton V. Slia f- foriii.-iiu'cs. ('alifninia Tenal Code, ler, J» Pick. 4ir.; Maker v. ('iiicin- Sec. 3o:}, iiftti, 11 Ohio St. .''j.'M. § 251 STAGE CENSORSHIP. 239 iiients of an artistic character, and tliose whicli do not s«'rvt' siii)erior ends. Of the former class the most imi)ortaiit is the theatre, « § 251. Control over theatres— Stage censorship. ••^ — In Euro- pean countries the theatre is in a special manner siih.jcet to police control. In England, when the stage lost its connection with the church, companies of players were attached to the court or noblemen, as whose servants they were designated and under whose license they acted. So in 1583 a number of selected actors were enrolled under the Master of the Revels as the Queen's company of players. The municipal authorities also claimed the right to control plays and actors within their jurisdiction, and in 1575 all players were expelled by them from the city of London. The provinces of state and munici- pal control were not clearly marked from each other, and we find the Privy Council and the London city authorities partly in conflict, partly in friendly communication with each other, regarding the subject.^*^ Statutes of Elizabeth^ ^ punished common players of interludes or minstrels ''not belonging to any baron of this realm or to any other honorable person of greater degree, ' ' and down to 1824 unauthorised players were treated as vagrants — since 1737, it is true, only if they played where they had no legal settlement. By Walpole's Theatre Act of that year^^ letters patent or the license of the Lord Chamberlain (who succeeded to the function of the Master of the Revels) were required for the performance of any in- terlude, tragedy, comedy, opera, play, farce or other enter- tainment of the stage, for hire or gain. Moreover, no new play, act, or scene was to be put upon the stage without first sending a copy to the Lord Chamberlain, who was given power to prohibit its performance as he should think fit. The same act prohibited the issue of licenses for provincial cities, and this metropolitan monopoly was only gradually abandoned by special acts of Parliament allowing the establishment of theatres in cities outside of London.-* ^ The present theatre ^0 See, also, § 239. -n Especially 39 Eliz. cli. 4. 40 Ordish, Early English Theatres 42 10 George 11, ch. 28. p. 58-61; as to action of the Privy *"• 8 George III, ch. 10; 11 George Council see Dasent Acts, 1543, p. Ill, eh. 16. 109. 2-40 VICE AND BEUTALITY. § 251 act of 1843^^ requires justices' licenses in the provinces, and a license from the Lord Chamberlain in London, and retains the j>rovision that new plays must be submitted to the Lord Chamberlain, who may prohibit them absolutely or for a time, for the preservation of good manners, decorum, or the public peace. The English law thus retains the censorship for the stage. In France, by administrative usage, confirmed by decrees of December 30, 1852, and January 6, 1864, theatrical per- formances require previous authorisation, given in Paris by the minister, in the provinces by the prefect of the department, and the permit may be revoked at any time. However, the establishment of a theatre requires only notice to the au- thorities, and no license. In German j^ theatrical managers require a license, which may be refused only if the authorities are satisfied that the applicant does not possess the necessary moral, financial or artistic qualifications. Actors do not require a license. Cen- sorship is recognised even without specific statutory authority as a measure for the prevention of vice or disorder, with this qualification, however, that plays may, but need not be, exam- ined before they are performed. In America theatres are generally classed with other kinds of shows and exhibitions in making them subject to the power of municipal license. License fees are not uncommonly graded according to the character of the entertainment, so that dra- matic or operatic performances require a smaller fee than circuses or menageries.''-'' The license is required with refer- ence to the place or the kind of entertainments to be given, » not with reference to the pursuit of the profession of actor, or immager, or with regard to a particular performance. The license appears to be in many cases a tax rather than a means of control, in others, however, it may be refused if the place (•an be shown to b Rov. (V)(1p, 1897, Sec. Suppl. 473. 99. «7Rev. Laws, ch. 102, Sec. 172. *" ArmHtronji v. Murphy, 65 N. Y. § 251 STAGE CENSORSHIP. 241 shows.^** Censorship does not exist in America, and may be regarded as prohibited by the spirit of the constitution.-*" Legislation has been enacted with regard to places of publi<' entertainment in the interest of public safety, to compel equal treatment of the races in the matter of admission,^^ and to secure public convenience, notably by requiring the removal of hats.s' 48 People V. Doris, 14 Appl. Div. so gee section 694, infra. N. Y. 117. 51 So in Chicago by ordinance and 49 Dailey v. Superior Court, 112 by statute in Ohio, West Virginia, Cal. 94. Louisiana, Wyoming and Utah. 16 CHATTER X. CONTROL OF DEPENDENTS. INSANITY. §§ 252-256. § 252. Restraints placed on the insane.— Where a person is mentally so tleraiiged, that he is danyerous to himself or others, if permitted to be at large, it is clear that he may be given into proper custody; but the statutes generally allow- also the commitment of the insane, where the restraint is for his benefit, or where he is a fit subject of care, treatment or custody. 1 The commitment may be either to an asylum, public (»r private, oi- to the custody of friend's or relatives,- the statutory provisions being generally confined to the former. Provisionally and until his case can be properly disposed of aecortling to hnv, the insane may be placed under restraint without judicial process,^ but some statutes set a limit of time to such temporary detention,-* and in the absence of statutory provision the person imposing the restraint acts at his peril.'' A more than provisional confinement in an asyhnn can be ordered only by a court, and upon notice to the alleged insane,** unless the condition ol' the patient makes a hearing dangerous or i)rejudicial to his health." In Illinois there is ordinarily a li-iai by jury, and it is provided that the rights of the i)erson whose mental condition is in(|uii'ed into shall be the same as thos<' of any defendant in a civil suit.'* Uniler the same statute » .MaHHachuHCtts Rov. Lhwh, ch. 87, "Chase v. Hatliaway, II .Mass. Sec. M.'{; llliiiiiLs K(«v. St. cli. 85, Sec. 222, as to ap])()intinent of jjuanlian; 1; Ke Duwdell, 1G9 Mass. 1587, 47 Smith v. JVoplc, (i5 111. a75; Gan- N, E. 1033; Porter v. Kitcli, 70 non v. Doylo, J(i K. 1. 72(5, 5 L. R. A. Conn. 235, 39 1,. If. A. :\r,:\. :',.■'.»; Soulcs v. Koljinsoii (liul.), 00 = 111. Rev. SlatiitcH. '2; limit v. Soiircy, ir>7 M. ir)S, «n Infinity Law, § JJ'J. (57 S. W. 'JOG. it People ex rcl. Hnllivaii v. Wcii- <)<-l. fJH N. Y. Suppl. 948. § 255 INSANE ASYLUMS. .>45 view to obtaining a judicial liearing if he so dt'sircs. If such provision is made, the commitment is in reality only pro- visional; but at the same time the person receiving the allegt-d insane is protected from liability for false imprisonment. In so far as the law complies with these requirements it should be held to be constitutional. The California law seems de- fective in not providing for impartial examiners, and in dis- pensing with notice without showing good reason therefor.' '•* § 255. Right to discharge.— It is also proper that statutory provision be made for the discharge of the person confined or restrained, when he has recovered sufficiently to be able to be at large again ;2'' but even without such provision it is within the power of a court of general jurisdiction to order such discharge in a proper case upon habeas corpus or other appro- priate proceedings. 2' The right to apply at any time for dis- charge has been held to reconcile even the absence of hearing in the first instance with the constitutional requirement of due process, and if upon such proceeding the petitioner is found to be insane his detention may bp continued.-^ § 256. Control of private asylums.— While the statutes ap- parently require judicial authority for all cases of more than temporary restraint and commitment of insane persons, the interests of the insane or of the alleged insane also require that the provisions for judicial process before commitment should be supplemented by a systematic control of all asylums, public and private. The control of asylums would have to cover the following points : proper qualification of owners and man- agers, and adequate arrangements in the asylum for receiving and treating patients; the compliance with the prescribed con- ditions to be controlled by the requirement of a license; and constant supervision by public authorities, through require- ment of reports, and periodical visitations. In several states, 19 See, also, State v. Billings, .55 the court seems to be excessively Minn. 467, 57 N. W. 794, 43 Am. strict. St. Eep. 525, holding proceedings ^o Illinois Kev. Statutes, ch. 85, unconstitutional because physicians' sec. 23, 24; New York Insanity; examination not required to be Law, § 74. under oath, and because no judicial 21 Re I\Larquis, 85 Mo. (,)15. safeguard prescribed for the hear- 22 Re Dowdell, 169 Mass. 387. 47 ing by the probate judge or court X. E. 1033; Re Le Donne, 173 Mass. commissioner. The view taken by 550, 54 N. E. 244. 246 C'OXTROL OF DEPENDENTS. § 257 the powers g:iven to commissioners of eliarity or lunacy are wide enough to allow a control in all these points.-^ Such control belongs clearly to the police power for the protection of safety, health, and comfort. In California, a county ordi- nance prescribing arbitrary and oppressive regulations for asylums was declared unreasonable and void ;-"* but the power to control the professional care of the insane by reasonable rules, and by the requirement of licenses, was fully recognised by the court. JMINORS. §§257-267. § 257. In general. — The natural dependence of infancy and youth finds its natural remedy in the institution of the family. The state generally leaves the care and protection of children to their parents, recognising a corresponding right of control, restraint and discipline. The law also provides through the institution of guardianship a substitute for lacking parental power. The constitutional protection of property rights un- doubtedly also applies to persons under age, so that they cannot be deprived of the ultimate beneficial interest in their property, but its management may be given to others in trust lor llu'iii, and they may be placed under disabilities, operating loi' ilieir benefit, with regard to acts of obligation and dis- position.-^ The police power which is exercised for the benefit of minors oix^rates j)artly on them exclusively, partly by r(^- straints on parents or guardians or on other ailults dialling with minors; in either case the liberty of minors is (miumHv restricted. There is no doubt that if the law can |)i<)liil)it minors frimi buying it can :ilsrnu(> v. Nclli^r;ui, <) Wail. Kov. I^wH, ut not an inalienable one;-*^^ that there is no parental authority independent of the supreme power of the state S'^ that in other words the parental right is no vested right.-'^ Tlu'i-c is indeed a tendency to treat this right altogether as a power in trust, Avhich may not only be checked in the case of manifest abuse, but the exercise of which may be directed by such rules as tlio legislature may establisli as best calculated to promote the welfare of the .-hiki. 'I'lic principle of supreme state control lias received strong expression in the statutes providing for the commitment of neglected or destitute children to reform or industrial schools, such as, within a comparatively recent ])erio(l. have been estab- lished in most ol' tlu' states.'" We are lieri' confronted witli the <|nestion : Ts it competent for the state to inflict upon a child such (lepi'ivat ion of lilicrty ;is is insc])iii';il»le I'l-oni c(nii- Miitnient to an instilulioii, whei'c the child has coniniitted no ofVcnse? An act of Illinois of 18(17 i)rovi(le<| 1h;it wlu'ii a child •■'> Kx pnrtp f'ronsc, I W liiirl. -i'' Hon not t v. l?cniio(t, 1.3 N. .1. (\'n.) '.). V.q. 111. MiTccin V. Podpio, LT) Woml. •'* .MaHHapljusettH Rov. Tjiiws, private corporations. The entrusting of a child to the care •n state V. Kilvington, 100 Tenn, ** 55 Illinois, 280. 227, 41 L. R. A, 284. •».-. Act June 23, 1885. 42 Penal Code, Sec. 291. Service 46 Farnham v. Pierce, 141 Mass. ol' process upon the child itself has 403. been held to be unnecessary. Wil- 47 Re Knowaek, 15S X. V. 482, Idnson v. Board of Children's Guar- 53 N. E. 676. djans, 158 Ind. 1, 62 N. E. 481. 48 County of .McLean v. llum- 43County of McLean v. Hum- phreys, 104 111. 378. phreys, 104 111. 378. 252 CONTEOL OF DEPENDENTS. § 264 of a private institution is clearly analogous to the practice of appointing private individuals as guardians. There is no doubt that the state may exercise the fullest control over all private institutions for the care of children."*^ Statutes may also provide that the authorities having control of children shall have the same right as parents and guardians to bind out a child as an apprenticed"^ This appears to be now one of the chief applications of the custom of apprenticing minors which has largely fallen into disuse. Apprenticeship is in most of the states regulated by statute, and the constitution- ality of the institution is not questioned. vi 264. Compulsory education.— One of the most important of parental rights is that of directing the education of the child. While the legislative practice in the United States has for a long time left this right free and unregulated, it is certainly not beyond the exercise of the police power. Com- pulsory education laws have been enacted in a large number of states, and their constitutionality has been sustained where drawn in question.' They proceed upon the theory that the parent has no right to leave the child uneducated; and they fix the age up to which education is required. In some states the same object is also sought to t)c reached by forbidding employment of children except on proof of attendance at school for a prescribed period.^ ^ 265. Truant schools.— A peculiar exercise of the power of compulsory education is to l)e found in the estal)lishment of so-c;i1I(m| ti-uant or parental schools.-' Under the law of Illinois. children wlm an' liahilual li'iiants or jiersistently violate school regulations and jnove uncontrollable by the ordinary school discipline, may be eonnnilled 1o an institution wliei-e they are ki'j)t for ;i1 least four weeks, after wliicli lime Ihev may be dis- charged i)rovisionally on parole. Tlu' institution is primai-ily *» I.UWH of New York, 1884, di. 138, Sec. r,; llliiu.is Act .lunc IH, 43H; MaHmichuHottH Rev. L^wh, di. 1H8.3, Sec 11; rcojile v. Woiason- 83, lirciiHCH for bimrfliiij; Iiohhoh I'cir liacli, 00 N. V. 385. iiifaiitH imiliT two vcarH; IcjjiHiiitioii • State v. Hailoy, l.')7 IikI. 3:^4, hail Ijccn enacted in recent yeurs <)1 N. I-. 73(1. renlrainin^ tlu! |»la<'iiijj out of cliil- - MaHHaclniHetlH Rev. Laws, cli. • Iren from other Htaten l»y cliarita- M)(), Sec. 28-;{r>. l>le HociefieH. i Illinois Act of 189i); MaHH. Kev. f'" LawH of New York, 1884, (ir \v;is iii;iinly left 1o llic ( 'liuicli. Tht! earlier English le^islali<»ii dejilt with pauperism only through 1hi' punishiiieiil of v.igalxmds. I'aupei-s who eatuiot he tre;i|t(| ;is cl-ilirHials hegili to he th>' object of legislation froni the end of the (iriecMth eeiitur\. It was provided in l."):n'~ that beggars not ;d»h' to wock should procure httccs " Krv. Slat. <|i. iL'ij, Sfc. .".. >i I'liivcrsily Law, § 27-3:5. i'-H«»i)i'r V. II:irv:ii.l ( •(,lli.^r,., ] > - L"J Tl<'nry VI 1 1, ell. 1 2. rick. 177. g 269 STATE AND PKIVATI^ CHARITY. 255 of license to beg. Five years latori"' open begging was pro- hibited, and it was provided that vohnitary alms were to be gathered and distributed by the clergy; in 1552 a collector of alms was directed to be appointed by the inhabitants of the parish, who were exhorted and admonished to contribute, and since 1563 those obstinately refusing to give might be taxed by the justices of the peace. Finall}^ in IGOl,'^ a regu- lar system of public poor relief based on taxation was insti- tuted, which has become the basis of our law on the subject.'-'' At present, the activity of the state for the relief of poverty and suffering consists mainly in the management of funds and institutions, i. e., in the exercise of proprietary powers. All such relief, however, also involves the taxing power, and under this head constitutional questions have arisen as to what kind of distress is relievable by the public, Avhich need not be discussed in this connection.^" The police power may be called into play in this matter, first, in the relation of the state to private charity; second, in the imposition of the duty of support upon designated persons; and third, in the adoption of restrictive measures against paupers. § 269. The state and private charity.— The state recognises and encourages the relief of suffering through private agen- cies, and its relation towards private charity is therefore mainly one of furtherance and aid, by granting facilities for incorporation, exemption from taxation, etc. The excessive accumulation of wealth in the hands of private charitable institutions is, however, regarded as being contrary to public policy, and has given rise to restrictive legislation. This legislation consists partly in the limitation of the right to bequeath or devise, partly in a limitation of the power of the charitable institution to acquire real or other property. The right of testamentary disposition being purely statutory, its regulation or limitation is freely conceded to the legislative poAver.i' The same is true of the control which the state exercises over the creation of trusts, and its power to grant 13 27 Henry VIII, ch. 25. 454 ; North Dakota v. Nelson 14 By 43 Elizabeth, ch. 2. County, 1 N. D. 88. 15 See Fariiam, Poor Laws, Pol. i' United States v. Perkins, 1G3 Se. Quarterly III, 282. U. S. 625. i« Lowell V. Boston, 111 Mass. 256 COXTEOL OF DEPENDENTS. § 270 or withhold corporate privileges includes the power to de- termine how much property a corporation shall be allowed to hold. Apart from the matter of excessive wealth, the manage- ment of charitable funds and institutions may give rise to mischief or public scandal, and therefore call for state con- trol. Without statutory provision, a court of equity, either as the representative of the parens patriae, or in the exercise of its general jurisdiction over trusts, or, perhaps, under the powers created in England by 43 Eliz. ch. 4 (if these are re- garded as part of the common law in this country) may inquire into the management of an eleemosynary corporation, and redress abuses.^* This power Avould be adequate to deal with perversions of the original trust, or other plain cases of mis- management, but would hardly extend to dealing with a policy believed to be dangerous in its tendencies or conse- (juences. Police legislation regarding charitable institutions in the interest of safety, health, morals, and comfort would be clearly authorised on general principles; and legislation for the en- forcement of prescribed principles and policy of management would ill most cases be justified under the reserved power to alter and amend corporate charters. j; 270. Compulsory support by relatives.— The statute of Elizabeth cast the duty of supporting impotent poor in the first place upon father and grandfather, mother and grand- mother, and children."' The duty has been further extended by American statutes. Thus it is provided in Illinois: "Tliat every poor person who shall be unable to earn a livelihood in eonsetiuence of any bodily infirmity, idiocy, lunacy, or other unavoidable cause, shall Ix' supported by the father, grand- father, mother, prandniolliiT. cliildrcn, grandcliildi-cii, brothers or sisters ol' siii-ti pooi- iici'son. if tliry, oi* cillicr of lln'iii, be of sufficMent ahilily : Provided. Ili.it when any persons become pauiKTs from inlcinperanec, or oIIh r h.id condnct, they shall not he entitled to support from ;iiiy i-cl;ition, except parent . "• 1 HInckHtone, 448, 454. S 271 KESTKAINTS ON PAUPERS. 257 nois.-i fpjig court recognised the existence of a moral and natural duty on the part of the brother, and argued that the state might protect the public from loss occasioned by thi* neglect of that duty, by transforming the imperfect natural duty into a statutory legal obligation. The statute, it was said, did not extend to such distant collateral relatives as that the courts could pronounce it unreasonable and void. From this last remark it may be inferred that the duty cannot be indefinitely extended, and that the test of the validity of the statute must probably be found in the previous existence of a natural duty. In some of the German states, the master is required to bear the expense of the treatment of a domestic servant during illness, if neither the servant nor his relatives are able to assume the burden p 2 it must be extremely doubt- ful whether our courts would regard such an obligation as the enforcement of a natural duty. § 271. Restrictive measures against paupers. 2;5_^inerican statutes commonly authorise local authorities to provide for poor relief in poorhouses established for that purpose. They assume that the pauper can be induced to enter the institu- tion, and make provision for the case that he cannot be con- veniently removed on account of infirmity or sickness.^-i The.y do not provide for compulsory rem.oval, and it should be noted that the English poor laws, even with the strongest desire to restrict outdoor relief, only indirectly enforced the entering into a poorhouse, by making the refusal to enter it a bar against relief. Further than this, it seems the state cannot go. Should the pauper refuse to enter, and also refuse to work where work is possible, he can be dealt with on the charge of criminal idleness, and confined by way of punish- ment. New York also provides that an inmate of a state alms- house who leaves the same without being discharged, is pun- ishable for soliciting aid within a year thereafter ;-5 and the solicitation of aid from the public or from strangers may prob- ably be entirely forbidden if public relief is offered in an asylum. On the other hand, the compulsory removal of a pauper 21 People V. Hill, 163 111. 186, 46 23 See, also, § 431, 491. j^, E. 796. 24 New York Poor Law, § 20, 23. 22 Prussian Law, November 8, 25 New York Poor Law, § 93. 1810, See. 68. 17 258 CONTKUL OF DEPENDENTS. § 271 to the locality in which hr lias a settlement is not uncommonly provided for. The policy of removal was introduced in Eng- land by 13 and 1-4 Car. II, c. 12. made permanent by 12 Anne st. I c. 18.2** The statutes treat this removal as a matter in which the conflicting interests of dilferent local districts are primarily if not exclusively concerned. The removal operates of course also as a restraint upon the pauper, and is a virtual deprivation of liberty which if illegal would give a cause of action for false imprisonment. The power has so long been exercised in England and in this country, that the established practice has been held equivalent to express constitutional sanction. Upon this ground compulsorj- removal has been sustained in Minnesota.-' If the exercise of the power is confined to those who ajiply for or accept public relief, their own act might wt'U be held to estop them from insisting upon the free choice of a district, which they do not simply j^ise as a place of resi- dence, but upon which they propose to inflict themselves as a burden. The English law, however, allowed the removal of persons likely to become chargeable, a ])rovision copied in American states and retained to the present day in Pennsyl- vania.^** Such a power, in addition to being liable to the grossest abuse,-^ is so inconsistent with thi* freedom of migra- tion in pursuit of livelihood, that it can probably not be main- tained under our constitutional limitations. The earlier law of ^lassachusetts ai)plied only to persons likely to become charge- able by reason of age, infirmity, idleness, or dissoluteness. At present the person to be removed nnist have become actually chargeable,-'" a change in the hiw which was made in Hngland in ITit').-'" In Maine a statuli' reijiiiring a eoninion carrier l)ringing a i)erson not being ent it h'(| to a selth'nient in thestat(\ into the state, to I'eniovc him, if within one year he becomes chargeable to the puhiiit foi' sui)i)or1, \\as hehl to be uncon- stitutional as being conlrary to the fed. 'i-al power to I'eiiulate interstate comniei-ce. Hut the power of reiiioxal IVoni place to i)iace witiiin the slate Avas not denied. I| ;i|)pears that under llie statute ;i pel-son at the time of l)eing brouglit into 2'i Ah Io IIu' uri^iii;!! |iiii°|iiis(! nt' (iil|iiii Ovi^rmicr.s v. I';irks Ovorseors, IhiH Htatutn Hcn NicliolH IliHiory of IIS I'ji. St. «4. tlu! KriKliHli Poor Ltiw, p. 'JH1. -u Sec ciiHO last, cited. -•' Lovcll V. Hcctmck, 4.') Minn. IC."., •■"• Hcviscil Tiiiws, c King 2M;n«|pr nn act of Juru! 1.3, l.S3(>. v. I'ariHh of Aiiii>tliill, 2 h & C. 847. § 271 RESTRAINTS ON PAUPERS. 259 the state need not necessarily have been a pauper. That a state may exchule from its territory paupers eominjj: from other states or from abi'oad, has been repeatedly intimatfd, though not directly decided, by the Supreme Court of the United States,''- but the conditions nnder which a person may 1)(^ regarded and treated as a pauper, have not been deter- mined. The exclusion of paupers fi-om immigration into the Ignited States by act of Congress^*^ rests upon the sovereign interuatioual i)ower of the United States, which stands above and outside of the police power. It may therefore undoubtedly be applied to persons likely to become chargeable. 32 New York v. iNfiln, 11 Pet. 101 ; Phimloy v. Massachusetts, 1.55 U. S. Passenger Cases, 7 TTow. 282; Hen- 461, 47S. (Ifrsoii V. New York, 92 U. S. 259; ^^i Marcli 3d, 1902. SECOND : ECONO:\[IC INTERESTS. PROTECTION AGAINST FRAUD AND OPPRESSION. PUBLIC CONVENIENCE AND ADVANTAGE. CHAPTER XI. PROTECTION AGAINST FRAUD. § 272. Preventive measures against fraud.— The private and the criminal law as well as the police power undertake to afford protection against fraud. They deal, however, with fraudulent practices only by remedial relief, treating a trans- action as void or setting it aside, giving a claim for damages or inflicting a penalty after the fraud has been committed. In either case the element of fraudulent intent is essential. The police power attempts to give an ampler protection both by adopting precautionary measures and by forbidding cer- tain practices irrespective of an actual intent to defraud. It does not in llic first instance punish fraud, but ]n-escribes regulations and punishes their violation. The intei'ventiou of the law proceeds upon the theory that every one who in- vites the confidence of the public may be compelled to submit to such regulations as will guard the public as far as i)ossibIe against misapprehension. Where the confidence of the public is invited to an exceptional degree, the regulations may be made specially stringent, on the ground tliat the business is affected witli a public interest, so in hanking and insurance. A gi'<;it lirld for statutory protection against fraud is also (>tVii-i'd in legislation regarding the organisation of ('ori)ora- tions; but the legislative control over corporations and in- corporation is based on peculiar j)rinci|)les, different from those governing the police power over individuals, and will be exaitiiiH'd sepjiratcly. 'i'lie (ield of legislation here lo Ite examined nia\ l)e divided conveniently as follows: ,\. Weiglits, measures and i)ackages. !'>. Inspection laws. C. Substitutes, imilations, adnlterations. I> Kornis of business lialde In abuse. iv l-'idi |it\- of jigcnts, depositaries, and ti'ustees. 260 273 WEIGHTS AND MEASURES. WEIGHTS, MEASURES AND PACKAGES. §§ 27.3-27.'i. 261 §273. The earliest legislation for the prevention of fraud relates to weights and measures. It goes back to Anglo-Saxon times, and forms part of Magna Carta.' The constitution of the United States provides for uniformity of wcigiits and measures by giving Congress power to fix their standard ;- but Congress has enacted no compulsory legislation in execu- tion of this power. It merely has passed an act authorising the use of the metric system ;3 and the federal government supplies the several states with certain standard weights antl measures as a matter of favor and accommodation imder a resolution of Congress of June 14, 1836.-* Until superseded by act of Congress the regulation of weights and measures therefore devolves upon the states, and is provided for jjy state legislation.^ § 274. Determination and verification of standards.— The statutes of the states generally lix standards to which the standards of like denomination used in trade must, under pen- alty, conform.*' There are otBcial sealers, who, upon recpiest, or irrespective of request, try and mark weights and measures, or test them upon complaint.'^ Statutes not unfrequently prescribe that certain common forms of package, etc., shall contain a fixed amount by weight and measure, and also that the enclosure itself shall not con- tain more than a prescribed weight and content, so e. g. that no baled hay shall be offered for sale with more than 10 per cent of the weight thereof in wood to the bale,^ or that the weight of the package be stamped thereon." Such pro- visions are found with regard to fish, fruit, hoops and staves, iCap. 25; una mensura viui per N. Y. Penal Coile, § 580-583; 111. totum regnum nostrum, etc. ri. St. ch. 147, Sec. 14. 2 18 5. '' Mass. Rev. L. ch. 62, Sec. 21, 37, 3 Act July 28, 1866; Rev. Stat. Chic. Rev. Code, Sec. 2018; Smith Sec. 3569, 3570. v Arnold, 106 Mass. 269; Bisbee v. 4V. Stat, at L. p. 133. See 111. McAllen, 39 Minn. 143; People v. Rev. Stat. ch. 147, Sec. 1. Rochester, 45 Ilun (N. Y.) 102. 5 Mass. Rev. L. ch. 62, New York » Laws of New Jersey, 1890, ch. Domestic Commerce Law, Art. 1; 236. 111. Rev. St. ch. 147. "Chic. Rev. ('...ie, Sec. 1240. cMass. Rev. L. ch. 62, Sec. 31; 262 PROTECTION AGAINST ERAUD. § 275 etc.^*' They are justified by the danger of fraud in the absence of uniformity. Similar in character are the laws which require the weigh- ing or measuring of articles by public authority/^ or the keep- ing of scales to enable the purchaser to verify his purchase.^ 2 The common provision that mine companies paying the miners by weight must keep scales and must allow their employees to have a weigher of their own, is analogous. In England, every clerk or toll collector of any public market may at all reasonable times weigh or measure all goods sold, offered or exposed for sale in such market.^ ^ For the better enforce- ment of this control certain classes of goods are even required to be sold at a place set apart for that purpose.^^ Regula- tions of this character have been upheld in several cases.' •'• They apply only to dealing by weight or measure, and do not necessarily prohibit other modes of dealing.^ ^ § 275. Compelling certain modes of dealing.— In a number of cases statutes prescribe that certain commodities shall be sold by a given weight or measure or in a certain package, and not otherwise ; as, that bread shall be sold in loaves of two pounds or in half, three quarter or quarter loaves;'' that coal when sold in quantities of 500 pounds or more, except by the cargo, shall be sold by weight;''^ that milk shall be sold in wine measures;^" or that in all contracts for the sale and delivery of oats and meal, the same shall be bargained for and sold by the bushel. ^'^ Such laws have been sustained without nnich (piestioning. But the requirement that coal miners shall l)e paid by weight has been declared unconstitu- 10 MasHachusetts Kev. Laws, ch. i^ JMassacliusotis J\ov. Laws, ch. 56, 57. 57, See. 3; Mobile v. Yiiillc, 3 Ala. " I'ittHburp, etc., Coal Co. v. 137; BuiTalo v. Collins, etc., Co., 57 Louisiana, 15(5 TI. S. .500. N. Y. Siii)|)l. 347; IVoplo v. Waj,'- >■- Massacliu.setts Kcv. Laws, ch. oner, 8(5 Midi. 5!)4 ; Ciiica;,^) Mo\. r/7, Sec. 44-40, as to ice wagons. (.'orlo, Sec. 1H7. 13 41 and 42 Vict. ch. 49, Sec. 64. i«Libhcy v. Downey, 5 Allen, 299. iWhic. K<'v. To.Io, See. Ili45. i" Mill.r v. Posl, 1 Alien, 434. "■• Htokcs & (lilhcrt v. Coritoration -'• Laton v. Kcj^.m, 114 Mass. 433, of Now York, 14 Won*!. 87, 1835; 1874. I'Vderal legislation contains iiit(!n(lant v. Sorrcli, I .limes Law analogous j)rovisions (dr I lie cii- (N. ('.) 49. 1853; (laincs v. (loalcs, torccmont of llic internal revcnne 51 MisH. 335; Yates v. ^Ti^v•nlkee, laws. See I'VIscnlicM v. United 12 Wis. 073. Stales, 180 U. S. 126. 1" Kichmond v. I'oss, 77 Me. 590. § 276 INSPECTION LAWS. ._»,-;;j tional in Illinois, the court holdinf>- that the General Assembly has no power to deny to persons in one kind (»f Ijusiness the privilege to contract for labor and to sell their products with- out regard to weight, while allowing this privilege to persons in all other kinds of business.-i Tpon this principle most of the laws above mentioned would be invalid. INSPECTION LAWS. §§276-278. § 276. Scope of legislation. — In the earlier periods of their history a considerable number of states enacted so-called in- spection laws, which to some extent are found on the statute books to the present day. A note in the case of Turner v. I\Iaryland22 gives a long list of such statutes. These acts generally applied to a limited number of articles, those in New York being: flour and meal, beef and pork, pot and pearl ashes, fish, fish and liver oil, lumber, staves or heading, flax seed, sole leather, hoops, distilled spirits, and leaf tobacco. They sometimes contained provisions regarding the treatment of the commodity to keep it from spoiling; they very often specified different grades of quality, each to be known by a certain designation and to be branded on the goods or their package; they always prescribed the manner of packing the goods (material of packing and size of package), and required that goods or packages or both before being marketed should be weighed, or weighed and inspected, and marked by official inspectors, who were entitled to a fee for their services. The object of the inspection laws, as stated in an early New York case, is to protect the community, so far as they apply to domestic sales, from frauds and impositions; and in relation to articles designed for exportation, to preserve the character and reputation of the state in foreign markets.^^ With re- gard to a number of articles the inspection laws confined themselves to packages intended for export ; in other cases they applied to goods intended for the domestic market as well; and in a few eases they applied only to articles coming from other states. §277. Validity under federal constitution.- '-The United 21 Millett V. People, 117 111. 294. 23 Clintsman v. Northrup, 8 Cow. So Opinion of Justices, 21 Col. 27, (N. Y.) 46. 39 Pac. 431. 2* See, also, § 75. 22 107 U. S. 38. 2(34 PROTECTION AGAINST FEAUD, § 277 States Supreme Court in a reeout case has said "Inspection laws are not in themselves regulations of commerce ; ' '^^ but this can only mean that it is not necessarily their sole purpose to control foreign or interstate commerce ; that they do affect and therefore regulate such commerce where they apply to imports and exports cannot he denied. The federal constitution has, however, made express i)ro- vision for them,-^ by forbidding the states without the consent of Congress to lay any imposts or duties on imports or exports except what may be absolutely necessary for executing their inspection laws, all such laws to he subject to the revision and control of Congress. It has been said that the term imports and exports relates only to foreign countries,-" but the case in Avhich this state- ment was made ui)held an in.- paction law operating upon products of other states. No case appears to have arisen under any statute, nor does any statute seem to exist, recjuiring inspection before sending goods to another state. But the validity ol' inspection laws ai)i>lying to exports to foreign countries has Ixhmi t'lilly recog- nised by the Supreme Court,-*^ and it has been held that the inspection need not extend to the goods themselves, but that it is sufficient if tlie package is Aveighed and its brands are inspected. The identification of the jirodneer ]\v mai'lorls from othei- states without discriniiiial ing against theui. since it covered fertilisers niannl'actni'ed in the state ;is well."-' In this c.ise the general pi-inci|»lc w;is rec(»gnise(| lli;it the sl;ites may in- Hpoct for the pfcvcntion of rc-iiid nnd tli;it this powei- |)revails -•' I'al.ipscd t\i'. ( ..ni[iiiiiy v. Hd.-irii -" V(ii;flil v. Wri^lil, 111 U. S. OL'. of AKrir-iihiiri', 171 I'. K .".tr.. ."..%}. .'I'liTi |l. S. :ur,. an Art. f, »ioc. 10, No. L'. "i Ah to Soiitli ('.•in,liii;i I)is|)(.MiH- ■1 171 V. S. 3r)(>. jiry Ijiw hoo mpra, Hw. 1233. 2»TiiriifT V. Marylaii'l. 107 IT. H. 38. § 278 INSPECTIOX LAWS. 'jfio over the freedom of commerce, subject to the power of Con- gress to annul such laws, especially on account of the exces- siveness of inspection charges. §278. Restrictions under state constitutions. — The license under the federal constitution does not, of course, remove any objection to the enactment of inspection laws that may arise under state constitutions. The constitution of New York of 1846 abolished and for- bade the future creation of all offices for the weighing, gaug- ing, measuring, culling or inspecting of any merchandise, produce, manufacture or commodity, saving offices for the pro- tection of the public health, for the supplying of correct standards of weights and measures, and for the protection of the state in its revenues and purchases.-*- By this provision the old inspection laws were al)rogated. They were felt to be oppressive because inspection was made a condition precedent for the marketing of the commodity to which it applied, and being accompanied by the exaction of a fee, operated virtually as a tax. The remedy has, however, gone further than the evil, and New York appears to have surrendered the power to inspect for the prevention of fraud altogether. So New York could probably not enact such legislation as exists in Illinois for the inspection of grain in warehouses, and which in Illinois has been held to be con- stitutional, ^-"^ and the inspection provided for in New York under the dairy laws of that state, though undoubtedly in- tended in part at least to prevent the fraudulent substitution of oleomargarine for butter, can be upheld only as a sanitary measure. Evidently the older New York Inws were intended not merely to prevent the perpetration of frauds, bul ;ilso to en- force a certain standard of quality, i. e. to prevent inferiiu- grades of manufacture. The two objects are by no means identical. New York might have abandoned the policy of enforcing quality w^ithout sacrificing the power to inspect for the detection of fraud; by abolishing inspection it has not even abrogated all legislation for the secui-ing of quality, and the present revision of the statutes retains the provisions 32 Art. V, Sec. 8. ^3 People v. Uarpor, 01 111. 357. 2(56 PKOTECTION AGAINST FKAUD. § 279 regarding the making of barrels for packing beef and pork, which are independent of powers of inspection. ^^ SUBSTITUTES, IMITATIONS, ADULTERATIONS. §§279-286. § 279. Poor quality without deception.— Poor quality which is visible to the eye so that there is no danger of deception, may be dealt with in the interest of public health and safety, so in the case of rotten fruit, or putrid meat. Where the injurious quality is not visible, the protection of health con- curs with the prevention of fraud, and increased penalties are sometimes provided for selling unwholesome provisions without making their condition knoAvn to the buyer. ^^ Where visibly poor quality affects neither health nor safety the police power does not interfere. The trade regulations of the mediaeval guilds claimed to have for their principal object the maintenance and improve- ment of the quality of the goods manufactured, and under the Tudors a very large amount of legislation was enacted for the li]\. "f priiii- in flic firm lliiit tlio prece- IIF, ell. 7, i:?(;3; .') H. IV. «li. i:'., ilcnt lias hccii sumcicnt to kcop \ip 1104; IH Kliz. eh. .',, LlMl. in Aiiicrica a slaiidanl that an •" N. Y. Wf'fkly PoHt, Tell. 1'-', ridicial 'iiall mark' was rc(|iiirc(| to H»(('J. ''Mr. Tinrnny w»s llir (irsf nifdrfc in llic indllicr <5,> ill Powell V, Pennsylvania, 127 U. S. 678. 270 PEOTECTION AGAINST FRAUD. § 284 butter were covered by another act, so that there remained as the sole reason for the prohibition of the industry that it competed with another industry and reduced the price of an article of food.-*^ And the Supreme Court of the United States held in a later case that while the legislative policj'- was conclusive as to domestic manufacture and sale, it could not extend to interstate commerce, and that the absolute pro- hibition of the Pennsylvania statute could not prevent the importation of pure oleomargarine into the state or its sale there in original packages.^" The acts of Pennsylvania and [Maryland forbidding the man- ufacture of substitutes for butter were repealed in 1899 and 1900 respectively, and this legislation is no longer to be found in American statute books. §284. Prohibition of imitation.— The prohibition of the manufacture of oleomargarine in imitation and semblance of yellow butter, by addition of ingredients changing its natural color, is found in many states and has been generally upheld.'^''' This (jualified prohibition is recognised as valid by the Supreme Court of the United States even as to oleomargarine imported from otlier states and sold in original packages, on the ground lliat the object of the statute is only to sujipress false pre- ten.ses, and that the freedom of connm'rce among the states tloes not demand a recognition of the right to practice a de- ception upon the public in the sale of any articles, even those that may have ])ecome the subject of tra(h' in tlili'erent parts of 1h<' count i-y.''' ••"r.MipIc V. .\laix, Slit N. Y. :577. A.lrton, 77 Mo. 110; Ex parte <7 SchnIIenberfi;('r v. Pennsylvania, IMiiniloy, 156 Mass. 236; MeCann v. 171 U. S. 1. The ofTect of lliis a\vs, 19012, cli. .'iS.l, a^ain jiro- ^ul).j«v•tH oleonuirg.'irine iijxtn arrival liiliits llir iiiaiml'acluri' ami salo of in Ji Htato tr) tlio laws of tliat state oieoinar^ariiic or any pnxhict from piiHHCfl in tlio cxercisn of its police jiiiinial fat or vegetable oil in iiiii powers; Init tlie decision ceaseil to latinii or seiiililaiice of hiilter. 'I'lie be of jiulicial importance when Htal)ite seems capaMe df liejn;^ iii- I'pnnMylvunin repealeil tlie pmliilii terpreted as absolute proliiliilidii ; lory oU•omn^^;;l^ine leyislation. bnt sticli etVect would be contrary to ♦"People V. Arensberpf, 10,''i N. V. t he judt;tueiit in People v. Marx. 123; .McAlliHter v. Htnte, 72 Md. •" IMnndey v. MMssudmscttH, 1.55 390; Htate ex rel. Waterbury v. I S. ICl. Vewfon, 50 N. J. L. 534; Htatc v. ^ 285 EEGULATION AND PROHIBITION. 071 The validity of provisions requiring oleomargcarine to be distinctly labeled as such, to be sold in prescribed forms of packages, or in rooms separate from those in which butter is sold, or that the purchaser be expressly informed of the nature of the article, is, in principle, not questioned.'^'* Such provisions, which do not forbid imitation, are found in a num- ber of states. The requirement of some laws that oleomar- garine be given a color or a name calculated to prejudice l)urchasers and to make the article odious, is evidently of a different character; it has been upheld in several cases as an exercise of legislative discretion beyond the control of the courts, but the Supreme Court of the United States treats prejudicial requirements as virtual prohibition, and holds them to be invalid as far as interstate commerce is con- cerned.^^ § 285. Principles governing regulation and prohibition.— The constitutional principles ' regarding regulation and pro- hibition have been fully discussed before, and may be sum- marised as follows : 1. Provisions requiring labeling and marking are valid, provided their primary purpose be not to make a useful article odious. 2. The legislature may fix the standard of an article of commerce known by a certain name, and forbid the selling of an inferior article by that name. 3. The legislature may forbid imitations, subject probably to this modification, that where imitation products have come to be recognised as legitimate substitutes, the power of pro- hibition should not be exercised to the destruction of valuable industries. 4. The legislature should not, and probably may not, pro- hibit the use of harmless ingredients, which increase the in- 1 rinsic value and usefulness of the article, especially of antisep- tics and preservatives. 5. The legislature should not, and probably may not, pro- hibit harmless and useful substitutes and compounds. so State ex rel. Bayles v. Newton, W. 688; Collins v. New Hampshire, 50 N. J. L. 549. 171 U. S. 30; see § 49, 58 aupra. SI State V. Marshall, 64 N.H. 549; Since the act of May 9, 1902, the State V. Myers, 42 W. Va. 822, 35 state legislation would again b.« L. R. A. 844; State ex rel. Weide- valid, man v. Horgan, 55 Minn. 183, 56 N. 272 PEOTECTIOX AGAINST FEAUD. § 286 While statutory provisions contrary to the two principles last stated have in some instances been sustained by the courts, the practice of legislation itself shows an unmistakable ten- dency to conform to them, as may be seen from the latter por- tion of the statute of j\Iassachusetts relative to adulteration, above quoted. § 286. Ordinances.— The courts may apply even stricter limitations to ordinances, and may take cognizance of the fact that certain practices are so common as to be no longer deceptive. Thus all dealers seek to make their wares as at- tractive as possible, and for this purpose use appropriate methods of packing, or displaj'. A city ordinance of Chicago undertook to prohibit the use of colored netting to cover fruit, on the ground that the reflection of the color on the fruit gave it a deceptive appearance of freshness and good quality. This ordinance was declared to be unreasonable and void,^ yet it cannot be said that such legislation is in principle be- yond the police power. The court in the case cite-d relied upon the recognised power of judicial tribunals to prevent an oppressive exercise of the numieipal ordinance power. FORMS OF BUSINESS LIABLE TO ABUSE. §§ 287-295. ^^ 287. Nature of danger or evil.— A considerable amount of legislation has Ih'cu enacted in restraint of certain avocations or forms of business which lend themselves easily to practices of deception either on account of the irresponsible character of 1lie dealer, or by reason of the inducements he employs to Mttract customers, or by reason of the ignorance or help- lessness of the parties \\illi wlioiii he deals. This (|iiestioniible status attaches notably to [x'ddling, and ion sales, ticket brokerage, aii\\\\ products was J'ricc, ni. hchl to be unconstitutional discriin- '•' State V. Montgomery, !>L' Me. ir.alion in Minnesota (State v. A'M, 'Mi Atl. 13. Wagener, G!> Minn. liOO, 3S I;. R. A, 1* Mt. Pleasant v. flntch. (5 Iowa. (>77). See Hosenblooni v. Stale, 89 r)40. X. W. 1().-j3 (Neb.). IS Commonwealth v. I'.rinlon, 1.3_' '<> \Ijihs. Rev. T^aws, eh. fi.'), § 14, I'M. St. (W. If). i*-' l.''in V. H. 2m. -■'•Cerman Tnidc Code, § .'').'')-(53. § 290 AUCTIONEERS-TICKET BROKERS. 275 certain articles are entirely forbidden, notal)ly intoxicatinf; liquors, second-hand clothing and bedding, gold and silver, cards, lottery tickets, shares and bonds, obscene writings, ex- plosives and inflammables, weapons, poisons and drugs. The German restraints on peddling therefore seem to belong rather to the prevention of crime than to the prevention of fraud, and they represent the most liberal and advanced legis- lation on the subject. § 290. Auctioneers.— The characteristic feature of auction sales is the soliciting of competitive bids for the property to be sold, the property going (as a rule) to the highest bidder. The regulation is usually by the requirement of licenses and bonds. The law of New York confines auctioneers to one place of business, and requires of them bonds and periodical accounts ; formerly auction sales were also subject to the payment of duties. In Massachusetts the license may contain conditions relative to the place of selling.-^ England seems to have no legislation restraining auction sales. France pro- hibits auction sales at retail of new articles of commerce, specifying a number of exceptions.^^ The German Trade Code-2 declares the business to be free, but allows the several states to provide for the appointment of auctioneers to be placed under oath. §291. Ticket brokerage. 2^— The abuses of this business have been sought to be met in some states by legislation for- bidding the sale of passage tickets by persons not having pur- chased the same for their own use who are not specially authorised agents of transportation companies.^-'' These acts have been upheld as valid exercises of the police power in Illinois, Indiana, Minnesota and Pennsylvania.^^ The opinion in the Illinois case states the theory upon which this legislation may be sustained, viz : that transportation is a business affected with the public interest, that the sale of tickets is an incident thereto, that such business is subject to an ample legislative control, and may be directed to be conducted entirely by 21 Rev. Laws, ch. 64, Sec. 91. ^o Burdick v. People, 149 III. 600; 22 Law June 25, 1841. Fry v. State, 63 Ind. 5-y2 ; State v. 23 Sec. 36. Corbett, 57 Minu. 345, L'4 L. R. A. 24 See, also, § 61. 498 ; Commonwealth v. Keary, 198 25 Illinois Act, April 19. 1875; Pa. 500. New York Penal Code, Sec. 615. 276 PEOTEGTION AGAINST FRAUD. § 292 transportation companies or their agents, if such policy is deemed to serve the interests of the public. Similar legislation was declared unconstitutional in New York and Texas for special reasons; in New York on the ground that the acts made the right to engage in the ticket brokerage business de- pendent upon the designation and appointment by transporta- tion companies, the appointee of any one company having the right to sell tickets generally, whereby the business of inde- pendent ticket brokerage instead of being suppressed was merely monopolised at the option of any company r" in Texas, where the court recognised the validity of such legislation gen- erally, on the ground that the act applied only to tickets upon which a warning was stamped, thus leaving its enforcement entirely optional with the railroad companies.^s § 292. Bankrupt and fire sales.— The objection to these is that they are not what they pretend to be and that the public is fraudulently led to believe that superior goods can be ob- tained by a special chance while as a matter of fact inferior goods are offered at their full value. They are often con- ducted by itinerant vendors as defined by the INIassachusetts statute. They are subject to the police power on the same principles as peddlers.-^ Questions have chiefly arisen with regard to the license fees. It has been said that under a munici- pal ordinance power they cannot be made prohibitive.-*" But in Vermont and Rhode Island the courts have considered the act of tlie legislature in fixing licenses for itinerant vendors 1() !)(• conclusive, though admitted to be oppressive. ^^ Massa- chusetts requires a statement under oath regarding the facts r(*[)r('sented in the advertisements, which statement is copied ill till' state license.-''" ^■'^ People ex rrO. Tyroler v. War- ^o Commonwealth v. CrowcU, 156 dr-n of City Prison, 157 N. Y. 116, Mass. 'J15, 30 N. E. 1015. 51 N, E. 1006; a new act omitting •»> State ex rel. Mincoa v. Sehoe- the particular objectionable feature nig, 72 Minn. 528, 75 N. W. 711; haH Hinco been declared unconstitu- Ex parte Moaler, 8 Ohio Circuit tional on the ((roiind that the state Court, 3124; City of Springfield v. cannot totally forbid a business of .lacobs (Mo. Ap|).), 73 S. W. 1097. this chararfor; Pcojde v. Cahlwcll, •"»» State v. Harrington, 68 Vt. 71 N. Y. Suppl. 6.54, anirmcd with- 622, 3) L. U. A. 100; State v. Fos- out opinion. 168 X. Y. (571. 61 N. K. tcr, 21 K. I. L'51, 43 Atl. 66, 50 L. R. 1132, A. 330. ".Tannin v. State (Texas). 51 S. 32 Rev. Laws, ch. 65, Sec. 8. W. 11_'6, 1899, 53 L. R. A. 349. § 293 TRADE STAMPS. 277 § 293. Gift sales and trade stamps. 3=*— Gift sales were de- fined by a statute oi' New York'-' as sellinji; or offt'rinf; for sale "upon any representation, advertisement, notice, or in- ducement, that anything other than that which is specifically stated to be the subject of the sale or exchan}?e is or is to be delivered or received or in any way connected with or a part of the transaction as a gift prize, premium or reward to tlie purchaser." The inducement now generally takes the form of a coupon exchangeable for articles to be selected by the purchaser, and these coupons are called trade or trading stamps. The policy of legislation with regard to gift sales and to the business of selling trade stamps is al)solut(' pi-o- hibition. In several jurisdictions the prohibition of gift sales and of trading stamps has been declared to be unconstitutional. •••'' The conclusion is based upon the ground that such sales have no element of chance in it, and can therefore not be treated as forms of gambling, and that it is no function of the police power to protect the public from the temptation to extravagant or unnecessary expenditure offered by special inducements, or to protect conservative dealers from enterprising competition, and that the offering of a premium for a sale is not intrinsically fraudulent. The practice of making small gifts to purchasers or of distributing souvenirs at theatre performances is indeed entirely harmless. The selling of trade stamps to merchants and the furnishing of premiums may, however, also be organised as a separate ■ business, and it is against this business that trade stamp legis- lation is directed. The business has been so well described by the Court of Appeals of the District of Columbia, that the words of the court should be quoted at some length: "The Washington Trading Stamp Company and its agents are not merchants engaged in business as that term is commonly un- derstood. They are not dealers in ordinary merchandise en- gaged in a legitimate attempt to obtain purchasers for their goods by offering fair and lawful inducements to the ti-ade. Their business is the exploitation of nothing more nor less 33 See, also, § 60. Suppl. Ill; State v. Dalton, 2l^ Kli. 34 Penal Code, 335a. I. 77, 48 L. E. A. 775; Young v. 35 People V. Gillson, 109 IST. Y. Com. (Va.), 45 S. E. 327. 389; People v. Dyeker, 76 N. Y, 278 PKOTECTIOX AGAINST FRAUD. § 293 than a cunning device. With no stoclv in trade but that device, and the necessary books and stamps and so-called premiums with Avhicli to operate it successfully, they have intervened in the legitimate business carried on in the District of Columbia between seller and buyer, not for the advantage of either, but to prey upon both. They sell nothing to the person to whom they furnish the premiums. They pretend simply to act for his benefit and advantage by forcing their stamps upon a perhaps unwilling merchant who pays them in cash at the rate of $5.00 per thousand. The merchant who yields to their persuasion does so partly in the hope of obtaining the cus- tomers of another, and partly through fear of losing his own if he declines. Again, a limited number only (an apparently necessary feature of the scheme), are included in the list for the distribution of the stamps, and other merchants and deal- ers who cannot enter must run the risk of losing their trade or else devise some scheme to counteract the adverse agency. The stamps are sold at the rate of 50 cents per hundred to the contracting merchants, and yet purport to be redeemable with premium gifts at the assumed value of $1.00 per hundred. Unless, therefore, the so-called premiums to be distributed among the diligent collectors of stamps are grossly overvalued the scheme cannot maintain itself, for in addition to the actual cost of the premiums it has to bear the cost of the books and stamps, and the maintenance of its office and exhibition room. If its ])remiums should have any fair value, then the stamp c(mi|)any must inevitably rely upon the failure of the presenta- tion chaiKM^s and advantages of its game I'oi* its expectations ol" |)i-o(it or gain."'"' Tlie eoiieliiding statement that the business eonslilulcs a lottery cainiot be conceded to be correct; foi" the ])nrehaser may, if he wants to, secure his preiniimi. ;imiI the ontconie is entirely within his control; and il" the compnny's cah-ula- tioiiH ar'e juslilied liy the doctrine of [Hdhnhilit ies, it does not take iiiiy chances, .ind il is not engagecl in gambling. It is anLariMhurjih v. DiHtrict of Cnlunibi.-i, II App. D. C .Tlli. 5 294 FKEEDOM OF COMMERCE. 271) not even an ordinary case of exploitation of public credulity, since there is -no actual fraud, or misrepresentation. The lefjis- lation is in reality for the protection of the merchants who do not want the trade stamps, but are not strong enough to refuse them for fear that they may lose business to a com- petitor who does take them. It is therefore a case of protec- tion from competition with which the state should have no concern. At the same time it must be admitted that the trad- ing stamp business serves no useful purpose, and the essential constitutional question is whether a useless business may be prohibited. The question cannot be regarded as settled in point of authority. § 294, Peddling", etc., and the freedom of commerce.— The restraint on peddling and auction sales may raise a federal question when it is applied to goods imported into the state. It is clear that the products of other states cannot be discrim- inated against, and a statute requiring a license only of those who peddle such products has therefore been held unconstitu- tional.2" The same principle would apply to products of for- eign countries, for "if a tax assessed by a state injuriously discriminating against the products of a state of the union is forbidden by the constitution, a similar tax against goods imported from a foreign state is equally forbidden. "^^ There would thus seem to be a fatal objection to the statute of New York which applies only to the peddling of foreign products.^'-* But where there is no discrimination against foreign products it is no objection to the requirement of a license of an auction- eer or peddler that he also sells goods from other states,^" at least where these goods have become part of the general 37Welton V. Missouri, 91 U. S. State, 284, 7 L. R. A. 666 (selling 275. soapine manufacturerl in Rhode Is- 38 Cook V. Pennsylvania, 97 U. S. land). 5(;g 40 Emert v. Missouri, 156 U. S. 39 Domestic Commerce Law, Sec. 296. In Texas it is held that a li- 60; the legislation of Pennsylvania cense cannot he required from one shows acts discriminating in favor who travels around selling organs of goods the product or manufac- imported from other states and ture of the state, but the federal carrying one in lus wagon which he question has not been passed upon disposes of if opportunity offers; by the courts; Commonwealth v. French v. State (Texas Cr. App.), Brinton, 132 Pa. State 69; see, also, 58 S. W. 1015, 52 L. R. A. 160. Commonwealth v. Gardner, 133 Pa. 280 PROTECTION AGAINST FRAUD. § 295 mass of property of the state. A non-discriminating tax upon drummers is regarded as more directly a burden upon inter- state transactions and hence void.-*^ It should also be noted that the license paid by the drummer is purely a tax, and not, as the license required of peddlers and auc- tioneers, primarily a measure of police regulation. ^ 295. Non-discriminative license fee.— Can a non-discrim- inative license fee be validly imposed upon a peddler or auc- tioneer selling goods brought from other states in original packages? It was decided in Woodruff v. Parham^- that a tax imposed alike on all auction sales was valid even as to auction sales of goods brought from other states in original packages, but the decision proceeds upon a distinction be- tween imports from other states, and imports from abroad which the Supreme Court in later cases has practically ig- nored.'* -^ In Cook V. Pennsylvania^^ a tax on auction sales was declared invalid as to imported goods in original pack- ages; in that case the statute discriminated against imports, although the decision does not rely primarily upon this dis- crimination, and there was a tax on sales to be collected by the auctioneer from the importer, and not a license fee exacted from the auctioneer. Under Fieklen v. The Taxing District of Shelby County^-'"' it would seem that a fee might be exacted of a peddlei" or auctioneer even if measured by his sales, al- though he sold in part imported goods in original packages, provided the peddler or auctioneer were a resident of the .state; but the authority of that case would not support the exaction of a license fee from a non-resident coming into the state with goods lo be sold at auction or by peddling in original packages, though tlie same fee should be required of residents. It was ImM ill McCall v. California'*" that the imposition of ;i !ieens(^ tax uimii i-nilro.id jiliciiIs Avas invalid as to an agent ol" a railroad ('ompaiiy doing business in otber states. This decision is not necessarily conehisive against tli(> validity of a police regulation restraining ticket brokerage, though such regulation may afVeet sales of tickets for transpoi-tation to anolher state. I'.iil there is no adjudication upon this point. ^' iJul.l.iiiH V. Tjixin^' Kistrict <>\' " • '.»7 XL H. rA]G. Hhol»)y ♦•(.iitity, IJO V. S. |H!». .-. \.\r, u. S. 1. «« Wall. V2X *'n3G U. S. 104. ♦■■"LniHy v, Ifunlin, IM U. S. 100. § 296 WAREHOUSE AND COMMISSION MERCHANTS. 281 The cases of Brown v. Maryland,-'' Robbins v. Taxint,' Dis- trict of Shelby County,'*^ Asher v. Texas,'*'' Stout(Mibiirt,'h v. Hennick,^^ and McCall v. C^lifornia^^ are aiitliority aj^ainst the taxation, though non-discriminating, of businesses or trans- actions directly representing interstate commerce, but a dis- tinction might perhaps be recognised under the authority of Plumley v. ]\Iassachusetts, between measures of taxation and the exaction of a license from peddlers and auctioneers not for the purpose of revenue but as a matter of police restraint for the prevention of fraud. Under the decision in Austin v. Tennessee^- it may perhaps also be held that the packages in. which a peddler is apt to sell are too small to constitute original packages. FIDELITY OF AGENTS, DEPOSITARIES, AND TRUSTEES. §§ 296-297. § 296. The special opportunities for fraud which the posi- tion of these classes of persons carries with it, have given rise to restrictive police regulations. A considerable part of this legislation applies to corporations, and to banking and in- surance, and therefore rests upon special titles of state control to be treated of later on.^^ § 297. Warehousemen and commission merchants.— Atten- tion should here be called to the statutes regarding warehouse- men and commission merchants. For the former the very elaborate regulations of Illinois may be referred to.-'"'-* These regulations apply chiefly to warehouses of grain in which the grain of dift'erent owners is mixed together. The owner or manager of such warehouse must take out a license and give a bond;^^ the grain he receives must before being stored be inspected and graded by an official inspector and must be stored with grain of similar grade received at the same time, the grain may be inspected at any time, and the warehouse commissioners have power to examine books and owners. The warehouseman must make out and post weekly stntenionts 47 12 Wheaton, 419. 1871 ; Rev. Stat. Title Railroads ami 48 120 U. S. 489. Warehouses. 49 128 U. S. 129. •'•' The power to make this reqiiire- 50 129 U. S. 141. ment was sustained by the Unitetl 51 136 U. S. 104, States Supreme Court iu W. W. 52 179 XJ. S. 343. Cargill Co. v. Minuesota, 180 U. S. 53 §§ 399-401, infra. 452. 54 Acts of April 13 and April 25, 282 PROTECTION AGAINST FEAUD. S 298 of the amoimts of each grade of grain stored. It was held that it was inconsistent with the fiduciary position of these ware- housemen that they shoukl store grain of their own because this woukl give them an advantage over other grain dealers ;^^ before the decision of the lower court was affirmed, a statute was enacted relieving them from this disability under special inspection and regulations to be framed by the warehouse commissioners;'^" but this statute was declared to be contrary to the constitutional policy regarding warehouses and there- fore void.^^ "Warehousemen must also receive grain for stor- age without discrimination and at rates fixed by law, but this duty has no relation to the prevention of fraud, but rests on the ground that the business is one affected by a public in- terest.^'' Statutes regulating the business of commission merchants have been enacted in a number of states within the last ten years.*'*' These acts, applying chiefiy to the consignees of farm products, provide for the taking out of licenses, the rendering of accounts and in some cases for the giving of bond by the commission merchant. The principle of such regulation was sustained in Illinois in the analogous case of l)iitter and elu^ese factories on the co-0])erative or dividend plan,'*! and tlif Illinois statute has been upheld with the ex- ception of certain administrative provisions not regarded as essential to the main ])urpose of the act.*'- s; 298. Public interest in prevention of fraud.— There is some autluiril\ for holding that the exercise of the police power foi- the prevention of fraud will not be maintained if it ai)pears that the l;i\v intends to alToid protection to private parties mihI not to t lie [mhlic. .\ inimber of states have enacted so-called bottling acts, f'O Central Klcvator Coiiipniiy v. '■' JFuwlhorn v. People, lOit ill. lVo|.lc, 174 111, '^iVA, r,] N. K. L'.U. :i(tL*. r-T An .May L'H, IKltT. "a La.sluT v. People, 1S;{ 111. 2126, f'" llannali v. P.-upl.-, Ills III. 77, r,r, N. K. (jtiii. The iMiclii^jaii ael, M N. K. 77«;. Iiowcvcr, has l»ecn held iiiie.onsti- f'" H»H'. .'{"3, infra. tutional as elass lojjislatidn unt 1" WcHf Virginia, IMU, t .liitnrnia jiislifie, .N'ortli Ka lel. ValrMiline v. Coolidpre. Harieii kota 1H»7. IllinoiH, Miehigaii, Miii < irciiil Jnilpe. IL'I Miili. (JGI, .'50 L. roflota 1HJ»«>. U. A. WH, 83 N. W. 594. § 298 PUBLIC INTEREST. 283 by which persons engaged in nianulacturing, bottlint^: or selling? specified beverages in casks, barrels, kegs, bottles or cases, with marks of ownership stamped thereon, may register such marks, whereupon it is made unlawful without the consent of the owner, to fill with any beverages, or to traffic in. or to destroy, any such barrels, bottles, etc.«-' The act of Illinois was declared unconstitutional partly as being class legislation, partly because it authorised unreasonable searches, and partly because it protected bottlers, but not the public. "It is for a mere private benefit, having no relation to the police power or the protection of the public against frauds or injurious preparations; since, if the brewer or dealer consents, the bottles or kegs may be refilled with any sort of drink differ- ent from the marks, and it wall be no offense under the acts, however injurious to the public."'^-* Yet the provision for- bidding the refilling of bottles only without the written con- sent of the owner was retained in the re-enactment of the statute eliminating the other features that had been declared unconstitutional.^^ The statute of Texas forbidding the sale of railroad tickets by others than authorised agents of railroad companies was held to be unconstitutional solely for the reason that it re- quired as a condition for its operation that the railroad com- pany using the ticket should stamp a warning on it. It Avas held that there was no absolute requirement to so stamj) tickets, and that the enforcement of the act was therefore left entirely optional with the railroad company.'*" In both eases the reasoning is somewhat strained. In both measures there was some public interest, though not to the same extent as that of the private parties more immediately concerned; and the legislature might well rely upon the in- terest of the private parties to see to the enforcement of the act, and thus to protect the public from fraud. In othov words, where a public interest coincides with a stronger i)ri- vate interest, it would seem to be no fatal defect to leave the 63 Illinois Act of 1873; New York '■* Lippman v. People. 175 III. 101, Laws 1887, ch. 339, and 1896, eh, 51 N, E. 872, 1898. 174; Mass. Rev. Laws, ch. 72, § 15. "s Act May 11. Ut«il. S.m> '2or, 111. The New York Act was sustained in 497. People V. Cannon, 139 N. Y. 32. «6 jannin v. State, 51 s. W. n2(i. 284 PEOTECTION AGAINST FKAUD. § 298 protection of the public to private action. Practically nearly all legislation for the prevention of fraud operates in this way. '^The power of the state to impose tines and penalties for a violation of its statutoiy requirements is coeval with gov- ernment ; and the mode in which they shall be enforced, whether at the suit of a private party or at the suit of the public, and what disposition shall be made of the amounts collected, are merely matters of legislative discretion. "^'^ "^ Missouri Tacilic K. Co. v. Humes, 115 U. S. 512. CHAPTER XII. PROTECTION OF DEBTORS. §299. Protection against oppression in general. — Wlicre the police power seeks to afford protection to peace, security or order, or against fraud and dishonesty, it may justify its interference on the ground, that its ultimate aim and effect is the prevention of distinctly illegal acts, violating specific and well-established rights. We now enter upon a field somewhat different in character. Our whole economic system is based upon a very wide liberty of dealing and contract, and it is deemed perfectly legitimate to use this liberty for the purpose of securing special advantages over others. Tiie resulting disparity of economic conditions is not, on the whole, regarded as inconsistent with the welfare of society. Yet a different view seems to be taken of this liberty of dealing, where eco- nomic superiority is used to dictate oppressive terms, or where a degree of economic power is aimed at that is liable to result in such oppression. The theory of legislative inter- ference seems to be in some cases, that oppression is in itself, like fraud, immoral and a wrong either against the individual affected thereby or against the public at large ; in other cases, that the excessive dependence of whole classes of the com- munity threatens, though perhaps only remotely, the social fabric with grave disturbance or ultimate subversion and ruin. COLLECTION OF DEBTS. §§ 300-30L § 300. Scope of legislation.— The collection of debts is tiie maintenance of the creditor's right and therefore a function of the administration of justice. Provisions which merely tend to facilitate the enforcement of claims, by the creation of liens or other appropriate means, do not belong to the police power, unless the debt arises out of a duty which in a special manner concerns the public welfare, and special rights are given to the creditor to secure a more efficient performance of the duty.^ There is on the other hand a considerable amount of legislation which does not tend to aid the collection of debts, 1 Atchison, T. & St. F E. Co. v. Matthews, 174 U. S. 96. 285 286 PROTECTION OF DEBTORS. § 301 but restrains the creditor for the purpose of protecting debtors as a class from imdue oppression. Partly this legislation aims to inhibit annoying practices, and partly it aims to give the debtor protection against an excessive burden of debt. In legislation of the latter class (usury laws, bankruptcy laws, legal tender laws) the constitutional aspect is very different according as it operates upon existing contracts or as it only affects contracts to be entered into after the enactment of the law. The operation upon existing contracts will be consid- ered in connection with the general problem of the taking of property under the police power. In legislation of the class first mentioned the difference between existing and future contracts is immaterial. § 301. Annoying practices in the collection of debts.— Where one person charges another untruthfully with refusing to pay a just debt, and the charge is made in writing, it con- stitutes a libel, unless the communication is privileged, which in some jurisdictions is held to be the case where it appears that the communication is made merely for the purpose of nuitual protection.2 The idea of mutual protection may be negatived where the avowed purpose is to coerce payment, all the more so where the debt is outlawed or more is claimed than is actually due.^ The actual existence of a debt is no jiistiiication where there is a counterclaim, or where the debtor is charged with a general habit of not paying his debts, or with being generally unworthy of credit;'* perhaps also where the publication ainouuts to a boycott or conspiracy to ruin the debtor."' A .sufficient jjublication is constituted by the send- ing of envelopes marked "Bad debt collecting agency" or in a similar way." TIh' decisions cited having been rendered under the com- MKUi law. Ilie varKlily of stalulcs aHixing a ])('nalt_\' lo llie same = Wiii. Kcp. <.)'JS, \ry\. 40 1.. R. .\. CIJ, .')0 N. E. (511); ry:\ S. VV. .'j'JO; McDcnnolt v. Union Nettles v. Soiiiniervell, 6 Tex. Civ. Cre.lit <;<)., 76 Minn. H4, 78 N. W. A]^). i)'27, 2.') 8. W. G.'jS. S«fi7, 70 N. W. r)7.'{; HeynoMs v. r> Me! iilyre v. Wciii.it, I'.tf. I'a. I'luinlxTM' Material I'roteetivo Ahbo- .Mi, I.T All. (WWi. rial ion, r»:{ .\. y. Hiipjil. 30.1. "Stale \. AriMHtroHK, Hni M". ■••State V. ArmHtrony, lOO Mo. :i!).". I :; I;. K. A. 41!), Mnct/.e v. .".W, 1". I,, i:. A. )Hi; Mnet/.e v. 'I'ntenr 77 Wis. 'jnO. Tntoiir, 77 \Vi». J.'Ui, '.» 1. R. A. M(i. § 801 ILLEGAL COLLECTION PRACTICES. 287 acts would not be questioned. A somewhat difl'erent question would be presented by legislation absolutely forbiddinj,' col- lection practices of an annoying character. A statute of Maine forbids the public advertisement for sale of debts, demands or judgments/ a statute of jMassachusetts makes it unlawful for debt collectors to wear striking costumes.^ Laws of this char- acter go beyond the protection against libel, for they ai)ply to just as well as unjust claims, they benefit the dishonest debtor as well as one who is harassed without good cause. Two arguments may be used to justify such legislation: first, that since it is almost inevitable that now and then injustice Avill be done by these forms of collection, the law may forbid them altogether, on the ground that measures for the prevention of an abuse may strike at the Avhole practice liable to abuse, unless such practice is essential to the enjoyment of valuable social and economic rights; second, that the enforcement of even a just debt must avoid methods which are humiliating or create a public scandal. On both these grounds the statute of ]\Iassachusetts is easily justified. If the Maine law is to be upheld it must be on the ground that the advertisement of lists of debts for sale is merely a colorable device for harassing debtors. If advertising de- mands for sale is not a necessary or usual means of dis- posing of them, the legislature may take notice of the real purpose of the practice. It is therefore not necessary to hold that the assignment of choses in action, not being recognised by the common law, is within the absolute control of the legislature. If the law may forbid advertisement of debts for sales, it may also forbid the publication of lists of debtors, since that is the true intent of the former practice. To sustain such prohibition, the practice must be regarded as going beyond what is necessary or fair for the protection of creditors' interests : the coercion of the debtor must not assume the form of an appeal to public obloquy and a provocation of public disgrace. But a creditor must be allowed some means of moral coercion, and the circulation of lists among the trade for the purpose of warning others and cutting off credit should be held to be a legitimate and a constitutional right." 7 Laws 1899, cli. 112. o In Hartnett v. Plumbers' Siip- 8 Laws 1899, ch. 238, Rev. Laws ply Association of New Enfjland, ch. 212, § 88. 169 Mass. 229, 47 N. E. 1002, 38 288 PKOTECTION OF DEBTOKS. §302 USURY LAWS. §§ 302-304. § 302. History of legislation.— Legislation against the ex- action of excessive rates of interest for the use of money loaned is of ancient date. The history of the Roman law shows many and varj'ing provisions upon this subject; as the law was finally settled bj- Justinian, interest above a certain rate could not be legally stipulated, and, if paid, could be recovered, and professional usury made infamous.^'^ The Canon law, which in this matter became the common law of Christianity, i:)rohib- ited Christians from taking any interest whatever, so that the loaning of money would have become a monopoly of the Jews. The principle was unenforceable and was either directly ig- nored or circumvented by various devices: purchase of rents and annuities, partnership with stipulated and guaranteed profits, charges for bills of exchange, and compensation for risk of loss and for loss of opportunity of profitable investment of the money.' ^ In England usury was an ecclesiastical offense, and was also L. li. A. 194, it was held that the application of such methods was be- yond the corporate powers of an association formed for other pur- poses; but that a right is not en- joyed by some corporation, does not prove that it is not a common or even a constitutional right. Note.— Ab to prohibition of as- signment of claims against wage- earners, or of garnishment of their wages, see Singer Mfg. Co. v. Fleming, 30 Neb. 670, 58 N. W. 226. The right to assign choses in action and to garnishee claims is not a common law right and is therefore within the power of the IcgiHiatiire, subject to the principles of otpiality. Laws are not uncom- mon (lllinoiH, Indiana, Iowa, Min- nesota, Nebraska, Ohio, Pennsyl- vania, Sntifli Dakota, Wisconsin) forbidding the sending out of the Hiafe by assignment or otherwise of claims for debt against residents in order to have the same collected by attachment proceedings in the courts of another state. This pro- hibition has been upheld in the Ne- braska case last cited, also in Sweeny v. Hunter, 145 Pa. St. 363. The prohibition was held to be con- trary to the principle of equality in Re Flukes, 157 Mo. 125, 51 L. R. A. 176. 10 Digest 12, 6: 26 pr.; Code 2, 11: 20. '1 Endemann, Romanistisch-Kano- nistiche Wirtschaflslehre. Roscher I, 574, quotes the following form of evidence of indebtedness: I ac- 1-jiowledgo having accepted from Titius 1000 gold pieces to expend them in legitimate business; and ir. place of an uncertain higher profit tliat might accrue to him from su<'li business, 1 jjroniisc to pay him annually six per centum, and to guarantee liini against tho risk of tli«' loss of sai "^^ L. R. A. 689; Archer v. 29 McLaughlin v. Citizens BIdg. Baltimore B. & L. Assoc 'n, 45 W. Loan Assoc 'n, 62 Ind. 264, 274; Va. 37; Vermont Loan & Trust Holmes v. Smythe, 100 111. 413; Assoc 'n v. Whithed, 2 N. D. 82; Winget V. Quincy B. & H. Assoc 'n, Endlich, Law of Bldg. Associations, 128 111. 67, 21 N. E. 12; People's § 342-366. 292 PROTECTION OF DEBTORS. § 306 ment of contracts and obligations does not require that a debtor should be stripped of all his substance or of the bare means of existence to satisfy his creditor. Considerable varia- tions of policy are possible in the extent of exemption allowed to the debtor; but as long as such laws are general and apply only to debts to be contracted in the future, no constitutional question arises with regard to them. >; 306. Prospective state insolvency laws.— Insolvency and bankruptcy acts belong to the same general order of legisla- tion. Those insolvent laws which give relief only from impris- onment, are in reality mere exemption laAvs, the distinguishing feature of bankruptcy legislation being the discharge of the debtor from the obligation of his debts, so that his after- acquired property is entirely free.-"^" Bankruj")tcy laws may thus be said to operate upon the obligation of contracts and not merely upon the remedy. This was the point insisted upon by Chief Justice JNIarshall in his dissent in the case of Ogden V. Saunders.^^ The Supreme Court had held in Sturges V. Crowninshield^- that a state insolvent law discharging a debtor from debts contracted before the enactment of the law was unconstitutional as impairing the obligation of contracts, but held in Ogden v. Saunders that a similar hiw operating upon debts contracted in the future was not within the pro- hibition, since the existing law modified the obligation of the contract ab initio. Even such a law, however, was refused any extra-territorial effect upon the rights of non-resident credit- ors; hence the discharge of the debtor has never iK^conie a conspicuous feature of state insolvent laws. There was considerable ground for the conlention so strongly urged by Marsliall that the prohibition of state legislation impairing th(^ obligation of contracts, in eonnection with the power given to Congress 1o eiiaci iiiiirni-iii bankruptcy laws, was intended to remove the powei- ol' Ijiiiikniplcx- legislation froiii the states; hut llir (•()iiteiii|)oraneoiis const ruet ion of the const it lit ion was otlierwise,-'' and the Sui)renie Court in adopt- ing it as its own, and eonfining the const ilutional prohibition t(» l)anl possession by contracts which are in other respects lawfnl. And this right Congn^ss has recognis(>(l bv the act of 187H niakinu' silver dollars leujil lender "except where other- wise expressly stipulated in tln' contract.""'" 3" DonniH v. Moses, 18 WiiHh. .'i:??, .'H' Woodruir v. Mississippi, 162 U. ■\() I,. K. A. :U)2, 52 Par. 333. This S. 201. was not tlic MKiin >,'roiinrl (.f Ilic -Ic- '" I'Mrst Siii'p!- ^^''V- ^*-"'<- P- l-'»2- rision. CHAPTER XI n. PROTECTION OF LABORERS. i § 310. In general.— The very large amount of legislation which exists in all the states for the protection of hilx)!-- repre- sents different phases of governmental power and of the police power. The establishment of bureaus of labor statis.ties-' does not involve any compulsory action of the state. Boards of con- ciliation and arbitration having no judicial powers (except perhaps the power to issue subpoenas, administer oaths and call for and examine books and papers), exercise merely a moral influence unless labor disputes are voluntarily submit- ted to their decision. The regulation of convict labor in state prisons,^ and of free labor employed by the state itself,^ is an exercise of the proprietary power, and the control which the state exercises over its municipal subdivisions may be used to some extent to prescribe terms of employment of labor on public works.^ Legislation for the protection of labor which restrains indi- vidual liberty and property rights falls under the police power, but the object is not necessarily an economic one. The great mass of labor legislation is enacted in the interest of health 1 See, also, § 437, 448-452, 498- nieipal work ; ' ' prohibition of em- 503 735. p]oyment of aliens, Illinois Rev. St. 2 Down to 1896 the statutes have cli. 0, Sec. 12-17. The constitutional been collected in a special report (iiiestions as to the power of the of the United States Commissioner state over municipal corporations in of Labor entitled Labor Laws of the dictating terms upon which they or United States; see also Industrial the contractors undertaking public Commission Report 1900, Vol. 5. improvements may employ labor do 3 In nearly all states, Industrial not fall within the scope of this Comm. Rep. V, p. 162. treatise; see the somewhat novel 4 This forms the subject of a doctrine advanced in People v. separate volume of the Report of ( oler, 166 N. Y. 1, 59 N. E. 716, the Industrial Commission of 1900, 52 L. R. A. 814, 82 Am. St.- Rep. Yol^ III_ G05, followed in City of Cleveland v. 5 Industrial Comm. Rep. V, p. 25. Clements Bros. Construction Co. Idaho Constitution article 13, (Ohio), 65 N. E. 885, and Street Sec. 21; "Not more than 8 hours v, Varney Electrical Supply Co. actual work shall constitute a law- (Ind.), 66 N. E. 895. But see At- ful day's work on all state and mu- kin v. Kansas, 191 U. S. — . 295 296 PBOTECTION OF LABOREES. § 311 and safety, and in factory and mining regulations we find, especially where women and young persons are concerned, provisions to promote decency and comfort. Laws of this character rest upon a clear and undisputed title of public power. The control of the labor of children likewise falls under a special head of the police power, as has been shown before. ji 311. Restriction of hours of labor of females.— Special provisions also I'xist for women. In adtlition to those which look toward comfort and decency," prohibitions are found in some of the most important mining states against the employ- ment of women in miues,'^ and the principal manufacturing states^ restrict the hours of labor of women in manufacturing establishments or workshops, usually to sixty hours per week, or ten hours per day with such increase as to make a shorter day for Saturday.^ '^ New York also forbids night labor of women in factories. ^ 312. Commonwealth v. Hamilton Mfg. Co.— The restriction of woman lal)()i' in factories to sixty hours per week was up- held by 1h(^ Supreme Court of Massachusetts in Common- wealth V. Hamilton Manufacturing Company,i^ perhaps the earliest decision dealing with the (juestion of the valitlity of labor legislation, ])ut assuming the validity almost as a nuittor of course, without extended discussion or citation of authori- ties. "It does not forbid any person, firm or corporation from enii)loying as many persons, or as much labor, as such person, liciii or corporation iiia\' w N'nrk, l'rnnsyl%iiiii;i, lumrs per week lias hocn Hustaincd NcbniHka, .\Ii<'liij;aM, Virjiitii.i, in .NchraHka. Wcnli.nni v. .State, 91 South Carolina, Georgia, Loiiisiana. N. W. 421, 58 L. 1{. A. 825. § 313 FEMALE EMPLOYEES. 2!)7 lation may be maintained either as a health oi- j)olice regula- tion, if it were necessary to resort to either of those sources of power. This principle has been so fr('((uently recognised in this commonwealth that reference to the decisions is un- necessary. It is also said that the law violates the right of Mary Shirley to labor in accordance with her own judgnu'ut as to the number of hours she shall work. The obvious and conclusive reply to this is that the law does not limit her riglit to labor as many hours per day or per week as she may de- sire ; it does not in terms forbid her laboring in any particular business or occupation as many hours per day or per week as she may desire ; it merely prohibits her being employed continuously in the same service more than a certain number of hours per day or week, which is so clearly within the power of the legislature that it becomes unnecessary to in- quire whether it is a matter of grievance of which the defend- ant has a right to complain." The passage quoted points to the distinction between direct restraint of the laborer, and indirect restraint operating through prohibitions placed upon the employer. As a matter of policy the latter method is more easily enforced, and therefore preferred ; but as a matter of power both methods must be valid alike ; since the legislature may not do indirectly what it may not do directly. It nuist be assumed that women were to be limited with regard to the time of their work in factories, and it would be strange if the law allowed an unlimited number of hours provided it were distributed between different factories. The decision should, therefore, be interpreted as meaning that the legislation was intended to be confined to factory work, leaving the question open whether the legislative power extends to the restriction of private work or occupation. Such a restriction would raise the problem of the power to interfere with private con- duct. § 313. Ritchie v. People.— In Illinois a statute was enacted in 1893 providing that "no female shall be employed in any factory or workshop more than 8 hours in any one day, or 48 hours in any one week." The provision was declared uncon- stitutional partly upon the ground that there was an arbitrary discrimination between manufacturers and merchants, partly on the ground that there was such discrimination against women, partly on the ground that the right of contracting was 298 PKOTECTION OF LABORERS. § 314 both liberty aud property under the constitution, and that the right to labor and employ labor and make contracts in respect thereto, upon such terms as may be agreed upon be- tween the parties, is included in the constitutional guaranty that no person shall be deprived of life, liberty or property without due process of law. that the limitation upon this right must in every case be based upon some special condi- tion, and not on the absolute right of control, and that there is no reasonable ground for fixing upon eight hours a day as the limit within which woman can work without injury to her physique and beyond which if she Avork injury will neces- sarily follow.^- The case of Commonwealth v. Hamilton ]\Ianu- facturing Company was said not to l)e in line with the current of authority. The opinion in Kitchie v. People can hardly command un- qualified assent either in the light of reason or authority. The statement that the IMassachusetts decision is not in line with the current of authority is unwarranted, for the right to re- strict the labor of women in factories had not been passed upon by other courts of last re.sort, and the precedent of ]\Iassa- chusetts has on the contrary furnished the authority for simi- lar legislation in a number of other states. The limitation of till' law to factories i*; not in itself unconstitutional discrim- ination; the hnv of Illinois forbids women l.-ibor in mines, and tile work in factories and wr the police [)()\vef e;iii he delci'mined. ij 314. Question whether measure sanitary or social. IT we look upon limitation dj" hours oi" hihor in t";ictories ;is ,-i niejisni'c of physicnl protection, ;i discrimiii;it ion hetweeii men ;inil w«)inen c.'innot he conilrnnied ;is ;irhitr;irv. And if ;in exces- '- Kitrliic V. I'roplc, l.'i.") 111. '.ts(. I iiiplojtiicnt which makes lon^ Ikjuth '"» Factory labor iH rliHtin^^iiiHhcil Hpccially (lotriinentiil; son Wells, Re- from nuTcaiif ilc anHti(', lalmr I'i'iit iv'diiniiiic Ch.'oifjcs. p. HI. I.v the monotonouH cliaraftrr cf tho § 314 FEMALE EMPLOYEES. ojjg sive number of hours is regarded as detrimental to w<>iu<-u, it may be forbidden, although the labor of men remain unregu- lated; for there may 1)(' practically no need j"(»i- legislative limitation of men's labor to (say) 11 or 12 houi-s if that num- ber is not as a rule exceeded; and it would be fatal to all' police legislation to hold that it nnist deal with all evils though requiring different remedies or with none.'^ But if we look upon limitation of hours of labor as a measure of eco- nomic and social advancement, and if that principle of limita- tion be conceded as legitimate, the discrimination between men and women can no longer be based upon considerations of physical strength, but must be justified by specific economic and social conditions of employment as affected by difference of sex. It is clear that some special provisions regarding women's labor are justified by their greater physical weakness. Their labor in mines is interdicted largely on that ground, and the prohibition of night labor in factories may be explained in like manner. The German Trade Code'^ prohibits factory work on the part of mothers for the period of four weeks after the birth of a child, and the Federal Council may prohibit any woman's factory labor found specially detrimental to health. A cutting down of an unreasonable number of hours, or llie provision for intervals of rest, falls within the same principle. But it may well be conceded that the control of hours of labor is not absolute, and that the courts are not bound to accept the plea of physical necessity as conclusive. If, how- ever, the limitation of hours is merely a measure of social advancement, a separate rule for all women for all purposes hardly represents a reasonable classification, for in the eff'ort to make a living men and women have a right to the greatest possible equality before the law. The German Trade Code"' provides that women who attend to the household are entitled to an extra half hour for the midday meal, unless an hour and a half is given for the latter; here we have a social measure justified by the special duties of women, and it is perhaps possible that other cases (apart from provisions for deceiu-y and morality) may arise in which all women as distinguished from all men are entitled to distinct consideration or vice 14 Vogel V. Pekoe, 157 111. 339, 30 ^'- See. 137. L. E. A. 491. i« Sec. 137. 300 PROTECTION OF LABORERS. § 316 versa ; so the law may require time to be given to men to vote, a respite from work in which women do not participate ; but to establish a Saturday half holiday for men only, or for women only, would be clearly unequal legislation. Applying these considerations to the existing statutes, there seems to be a general consensus of opinion that ten hours factory labor, or sixty hours per week, is a reasonable maxi- mum for women, and that the observance of that limitation is required by the care for their physical welfare.^' From this it does not follow that the same is true of eight hours, or that the choice of hours is entirely within the discretion of the legislature. This is one of the cases in which reasonableness is a matter of degree, to be determined in the last resort by the courts. Conceding that eight hours is not an unreasonably short day, yet it is generally recognised that the eight hour day is not a requirement of the public health, but is desired as a measure to raise the social and economic standard of the working classes.^ '^ In that aspect women are not entitled to a preference over men. This last consideration seems sufficient to support the decision of the Supreme Court of Illinois, with- out an endorsement of all that was said with reference to the constitutional right to contract and legislative control over it. ^315. Legislation for adult laborers.— In turning to the legislation I'oi- the protection of adult laborers irrespective of sex, we may classify it as relating to the following subjects: hours of labor, rates of wages, time of payment, form of pay, imposed conditions and iicnalties, coercion, discharge and cb^arance cards, l)lacl\-listing, and employment brokerage or in- telligence offices. ?; 316. Hours of labor.'" — Wii ere the law fixes upon a cer- tain nnnilx'i- of hours ;is ;i (hi\'s w(U"k, hut allows special con- tracts I'oi' .-nhlit ional work, llierc is sini|)ly a ruh' of inlerpre- tation and n(»l a police fc<^>-ul;it idn. Wlici-c the hiw aih)ws ovcrwoi'k for an extra c(iiii|(cns;i1 i" WpDh Rfcont Ecotuimic ciianjicH, TO.TJ ; New York Laws, 1892, ch. p. 438. 711. !5 316 HOUKS OF LABOR. :iui and to accept the stipulated wages as including tiie extra (-(.in- pensation.2i A police regulation exists if there is an obliga- tion to pay for work overtime special compensation ix-rliaps at a special rate,22 or where the law establishes an al)s()lute limitation, the violation of which is punishal)lc and which can- not be waived by the employee so that he cainiot recover I'.u' overtime.2^ The cases in which such limitation has been cre- ated so as to apply to adults are as yet exceptional, and they relate chiefly to occupations of a special character. Some of these laws can be justified on the ground of public safety, so the rule found in many states that railroad employees ope- rating trains or cars shall not work more than a stated number of hours,24 especially where the prohibition is direeted against overwork which may incapacitate the employee and result in disaster; so in New York and Michigan where (Mght hours of rest is prescribed after twenty-four hours of work. Considerations of public safety may also support the provision of a maximum number of hours for pharmacists and drug clerks.25 But where the time for all street railroad employees is fixed at ten hours per day, with right to work overtime for special compensation,^^ the justification on the ground of pub- lic safety evidently fails. If safety or health really foi-bid excessive work, special compensation does not remove tlie objection, and the fact that it is allowed indicates that the restriction rests on economic grounds. Hours of labor have besides been limited for persons em- ployed in a number of other special occupations, notably for miners,2^ for operatives in cotton and woolen mills,-'^ em- 21 Helphenstine v. Hartig, 5 Grif- -* In England it took many years fiths Ind. App. 172; Grisell v. Noel before a limitation of twelve hours Brothers, etc., Co., 9 Ind. App. 251, in the railway service was secured, 36 N. E. 452; Bartlett v. Grand and the prevention of accidents was Rapids Street R. Co., 82 Mich. 658; the controlling consideration which People V, Phyfe, 136 N. Y. 554; induced the result ; Roscher III, 923. Christian County v. Merrigan, 191 ^r. New York Laws, 1900, ch. 453. 111. 484, 61 N. E. 479. -" New York, Ohio, Pennsylvania. 22 Low V. Rees Printing Co., 41 27 in Utah and Colorado eight Neb. 127. hours per day. 23 Short v. Bullion, etc., Co., 20 28 Georgia, South Carolina, G6 Utah, 20, 57 Pac. 720, 45 L. R. A. hours per week; Maryland, rc- 603 ; see also Re Ten Hour Law (Op. stricted to manufacturing corpora- Just. R. I.), 54 Atl. 602. tions or companies. 302 PEOTECTION OF LABORERS. § 317 ployees on brick yards,^^ and bakers. ^o In Nebraska an eight- hour day^^ was established for all classes of mechanics, serv- ants and laborers, excepting those engaged in farm or domestic labor, but was declared unconstitntional.^^- § 317. Question of constitutionality.— If these limitations can be regarded as sanitary measures required by the physical well-being of those employed in the occupations specified, they belong to a well established head of the police power, but even a legislative statement of the purpose of protecting health would not be conclusive of their character. But the laAvs as a rule do not state the purpose of the limitation. The pro- vision for an eight-hour's day in mines and smelting works by tlu' legislation of Utah has been upheld by Ihe Supreme Court of the United States as an exercise of the police power for the health of miners,-^-^ while the Supreme Court of Colo- rado has declared a similar statute to be unconstitutional, even if intended for the benefit of health. =^^ Tbe Supreme Court of the United States declined to discuss lln- (pu'stion whether tb(; legislature had the i)ower to lix Imiii-s of labor in other employments than those detrimental to hcaltii. and intinmted tlnil llic ;iulli()i'it ics holding state statutes restricting the hours of l;il)(>r to \)c unconstitutional, li;i(l no application to cases where the legislature h.id adjudged iliat a limitation was necessary foi- Ihe pfcservation of the health of <'mpl()yees. 'I'licrc is no decision of a court of last resort upon the valid- ily of the statutes restricting the hours of la])or of adult cot- ton or wool operatives or hiicU yard employees. Il is also diflieult to say whethei* their purpose is sanitary oi' social oc economic. As to hakers the slatnlory liniilation has been nplK'l'l in New ^'ork,•■•'■ while in ('alironiia an ordinance i-e- (piii'ing the cessation of laln»i' iVoni Satnnlay eveniiiL;- to Suii- ilay Miornin;,'- was hi'ld to lir nncdiist it nl iona I (liscriniinal ion. the eonrt taking juilicial not i< t' the fact that the conditions ^•' New V.iik, It) liuiii-H. »■■• lloM.ii V. Ii;(i'<<]<>. •.';». ;',!• i'.-u-. .'IL'S. prriMition for overwork. '•'•' t'coplr v. I,(ii liner, 7(i N. Y. «2 I.iawH 1801, ch. r)4; Low v. Rtrs Snpp. :t!t(). 7.'! Ap).. Div. 120. .W- Printing Co., 41 Nol). l'J7. (iini.'.l. C'.i ,\. |;. .•;7;!. § 318 RATES OF WAGES. 3q;^ of work iu bakeries were not specially unsanitary.'"' TIk- X.-- braska law, which was more general in its scope than any other, was declared unconstitutional, partly as niakinj^ an un- justifiable discrimination between dift'crcnt classes of labor (by the exception of farm and domestic labor), partly as taking' property and liberty without due process of law.-'" It seems very clear that the Nebraska law was not necessary for the public health, but was purely and simply a measure of an economic and social character. From its sweeping condennia- tion it may be inferred that the Supreme Court of Nebraska regards the limitation of hours of labor, unless recjuired by safety or health, as in the case of womeUj^*** as inconsistent with personal liberty and, therefore, as beyond legislative power. The whole question of hours of labor must, from the point of view of authority, be regarded as still unsettled, but in principle a limitation which is neither unreasonable nor discriminative should be held to be a legitimate exercise of the police power. § 318. Rate of wages.— The power to regulate the rate of wages, .while freely exercised in former times,-^'' has not been claimed by any American state. The constitution of Louisiana provides expressly,^'* "no law shall be passed fixing the price of manual labor." In principle it would make no difference whether the rate fixed by law were intended to be a minimum or a maximum rate. Considerations of health and .safety which complicate the question of hours of labor do not enter into the question of rates. The regulation would be purely of an economic character. It would be closely analogous to the regulation of the price of other connnodities or services. The power to regulate charges in general will be discussed in another connection; the power to regulate wages of labor, even if it can be exercised with due regard for the principle of equality, would undoubtedly be resisted by a strong current 36 Yet a writer on hygiene says, 38 Wenliain v. State, 91 X. W. ' ' That the labor in bakehouses is 421, 58 L. li. A. 825. very damaging to health and short- ■''.» Under 5 Elizabeth, eh. 4, jus- ens life is well known to the trade. ' ' tices of the peace were empowereil J. T. Arlidge, Hygiene, Diseases and to fix the wages of hiborers; this Mortality of Occupations, London, hiw after long disuse was abrogated 1892. by 53 George III, ch. 40. ■■••" Low V. Rees Printing Company, *o See. 49. 41 Neb. 127. 304 PROTECTION OF LABORERS. § 319 of judicial opinion : Init the question need not be discussed in the absence of legislation raising it. ;j 319. Payment of wages.— Two classes of provisions re- lating to the payment of wages may be distinguished : the one requiring payment at stated times or intervals, weekly, monthly or semi-monthly ; the other, requiring the payment of wages in cash. The object of the former class of statutes is to enable the workman to pay cash for his supplies and to protect him from the disadvantages of purchasing on credit. They apply either to all employers,"*^ or to all corporations or business corpora- tions,"*- or to all corporations with specified exceptions,"* ^ or to specified classes of corporations or employers,"*-* or to miners and manufacturers,"*^ or to coal mining companies only."*'"' Legislation of this kind seems to be uncommon in other eoun-. tries."*" Statutes of the second class, often known as store order or truck acts, are directed against the evils of the so-called truck system, under Avhich the employing firm or company, being interested in a store which it desires its employees to patronise, pays them their wages in the form of orders or checks good for merchandise upon which the employer makes a profit. The truck system is old."*'* and was dealt Avilli by earlier English statutes consolidated in 1831."*'-* In P^nglantl an exception from the prohibition of truck is made in payment of medical serv- ices, fuel, infills at llic place of employment, and benefit assess- ments. The Gernuin Tratle Code^" forbids tnicU itaymciit willi simihii' exceptions: it also prohiliits payment in places wliei'e <' Ohii), Iiidianu; in JMassachu- torney's fee and an additional sum HcttH to all (>riii)Ioy<'rs of 'J;") or more. l)y way of poiialty aji^ainsl llu- I'ni- <2 Connccticnt, California, Kan- jdoyor; (MasHacliusottH, Arlatein<'nl. '" 1 ami 2 Willi.ini W. eh. .T". iind givinjj to the delayed laborer '•" Sir. 1 1.'"). who hau to Bue for his wages an at- § 320 MODE OF PAYMENT OF WAGES. 305 liquor is sold, a provision also found in Enjifland. Itiit not in American statutes. Tlie statutes found in many of the American states either forbid the employer to be interested in a truck store, or to control any scheme for the furnishinji: of supplies, tools, cloth- ing, provisions or groceries to his employees, or they forbid deductions from wages for goods furnished, or they prohibit the issue, in payment of wages, of any check, eard or other paper not redeemable at its face value in lawful money of the United States. Acting contrary to the prohibition is punished by fine. Sometimes the provisions also cover coercion of the employee to buy at a company store ;' some- times they are restricted to stores in which the employer has an interest.^ In their application the acts vary much the same as the weekly payment laws; in Colorado, Kansas, Louisiana, Missouri, New Jersey, Ohio, antl West Virginia they api)ly to all emploj^ers, or the statutes are at least capal)le of receiving that construction. In Kentucky the constitution-' prescribes the payment of wages in lawful money, but the provision is held not to apply to the issue of checks payable in merchandise upon the application of the employee, provided the employer pays at reasonable intervals so that the employee is not forced to apply for advances."* § 320. Judicial decisions.— Both classes of statutes have been passed upon by the courts, and have been made the subject of much constitutional argument. The .lustiees of the Supreme Court of Massachusetts advised the legislature that a weekly payment law applying to all manufacturers would be constitutional.^ In Rhode Island and Arkansas acts regarding the time of payment of wages were held valid in so far as they applied to corporations, on the ground that the control over corporate charters extended to such requirement.'*' while in California it was held unconstitutional to single out corporations for that purpose." In Illinois an ac^t recpiiring 1 Indiana, Iowa, Kansas, Tenne- '■ State v. Brown, etc., Mfg. Co., see. Ife R. I. 16, 17 L. R. A. SfiG; Et'.'). ^ Louisiana, Ohio, Kansas. v. St. Louis, etc., E. Co., 58 Ark. 407. ?■ Sec. 244. So, also, a truck act in ^[aryla^l(l. 4 Avent-Beattyville Coal Company Shaffer v. Union Mining Co., 55 M-I. V. Commonwealth, 16 Ky. Law Eep. 74. 414, 28 S. W. 502. ".Johnson v. Gooilycar Mining s 163 Mass. 589. Company, 127 Cal. 4, 59 Pac. 304. o 306 PROTECTIOX OF LABORERS. § 320 weekly payment of wages by every manufacturing, mining, ([uarrying, limibering, mercantile, street, electric and elevated railway, steamboat, telegraph, telephone and municipal cor- poration, and every incorporated express company and water company, was declared unconstitutional, as being an arbitrary discrimination between these and other corporations.'* Like- wise in chief reliance upon the element of unlawful discrim- ination the Supreme Court of Illinois had set aside a store order act applying to all mines and manufactories,^ while in Indiana an act applying to the same employments was upheld, mainly upon the ground that it was within the power of the legislature to protect the lawful medium of payment.^*^ In Pennsylvania and West Virginia, statutes forbidding miners and ma^nufacturers of coal or iron or steel and other minerals, and any other kind of manufacturers, to pay wages in ordei's not redeenudile for face value in lawful money, were*declared unconstitutional." Another act of West Virginia forbidding persons and corporations engaged in mining and manufactur- ing, and interested in selling merchandise and supplies, from selling to tlifir employees at a greater percentage of pi'otit than to others not employed by Ihcni. was likewise declared void.'- But in the same state in 1892 a store order act which applied to all persons engaged in trade and ])usiness was up- ln'id, the objectionable di.scriminating feature having been eliminated from this act.'-' In Missouri a statute forbidding corporations, persons or lirnis engagecl in manufacturing or mining to issu«' for llic |>a.\ imiil ol' wages an\' order, etc., payable 'otlK'fwise than in lawful money, unless the same should be negotiable ami rrdccniahle at face value and withont discoinil in cash oi- in goods, wares, merchandise and sup- plies, and re(|Miring the redemption of such order, etc.. at the option of the holder ill cash, was first upheld by one division of the Sii|ireme ('oiirl. hnt on heiiii: Iransferred to the court in l.:iiic was there (|e(dai'ed to he unconst it 111 ioii;i I Mild void. " nraci'villc ('(till ('oiii|':niy \. I''" l':i. St. i:'.l. I ss(i ; Stuti- v. (lood- |,lr, 117 111. m, IHja will, :V.\ W. V:.. 17!t. ISS'.I. '• Fn.nT V. Proj.!.'. Ill III. 171. ' -• sijitc v. Fin- Crcfk, etc, To., :^.T l.vjCj. W. V:i. iss. issit. I" Hjiiu'ix-U v. Vii.liii, IJI 111.]. I : I'cfl Splint Conl Co. v. St:itc, :;(;(•,. IH'.Hi. :'.i; W. V:i. MO'J, iM'.fJ. i< (JodclmrleH \. Wigcmaii, li:'' § 321 MODE OF PAYMENT OF WAGES. 3O7 as arbitrary and pai-tial legislation." A now act was thorc- upon passed in 1895 npplyino- to all persons, firms and corpo- rations, and this later act does not appear to have been passed upon. A weekly payment act without discriminating features was, however, held unconstitutional in Indiana.^^ The Jus- tices of the Supreme Court of Colorado intimated to the lejjis- lature that a truck act applying: to all employees would be constitutional,! « and such an act was held constitutional in Ten- nessee, i" the decision being affirmed by the Supreme Court of the United States.'^ In Kansas a store order act was held unconstitutional which was restricted to corporations and to trusts employing ten or more persons.^" § 321. Constitutional principle.— It appears from these de- cisions that the store order or weekly payment acts which have been declared unconstitutional (excepting only the In- diana weekly payment act) have been marked by some fea- ture of discrimination. It is true that the courts of Penn- sylvania, Illinois and Kansas have been emphatic in their denunciation of the general principle of this legislation.^'^ The Supreme Court of Pennsylvania speaks of an insulting attempt to put the laborer under legislative tutelage; the Illinois court dwells on the possible detriment of such meas- ures to the workmen— a consideration manifestly inconclu- sive, for there is hardly any police legislation, which will operate beneficially under all circumstances, and the question of wisdom or unwisdom must, within the limits of reasonable- ness, be matter of legislative determination ; the Kansas court says that the laborer by such legislation is in respect 14 State V. Loomis, 115 Mo. 307, the wisdom of the particular method 1893. of relief a question for the legisla- 15 Kepublic Iron & Steel Co. v. ture? State, 66 N. E. 1005. The court, i'"- Re Scrip. Bill, 23 Colorado, 504. however, says: "We do not assert 1^ Harbison v. Knoxville Iron Co., that the Legislature is powerless 103 Tenn. 421, 56 L. R. A. 316. to regulate the payment of wages is Knoxville Iron Co. v. Harbison, when the same are paid at un- 183 U. S. 13. reasonable periods, or that a com- 1=' State v. Haun, 61 Kan. 146, 47 munity composed largely of work- L. R. A. 369, 1899. ingmen may not be injuriously af- -" See especially remarks in Vogcl fected by unduly delayed payments, v. Pekoe, 157 Til. 339, that the ele- for these questions are not before mcnt of discrimination is not con- ns." Does not this concede the prin- trolling, ciple of the legislation? and is not 308 PKOTECTION OF LABOKEES. § 322 to freedom of contract classed with the idiot, the hmatic and the felon in the penitentiary, and asks what right the legis- lature has to assume that one class has the need of protection against another. These courts, therefore, hold that the stat- ute destroys the constitutional liberty of the individual. As an ideal theory of government this view may commend itself to some minds, hut as a matter of constitutional law it is difficult to see the difference in principle between truck and usury legislation. If we do recognise the legitimacy of the ex- ercise of the police power for the prevention of oppression, this legislation, especially store order acts, sanctioned bj' the practice of most civilised countries, is within the province of governmental power. There is undoubtedly an interference with the liberty of contract, but the question is whether such interference does not serve a reasonable object ; to set up liberty of contract as an absolute right is to deny the police power almost altogether. The prompt payment of wages in lawful money is a reasonable incident to the contract of em- ployment; if then the legislature believes that employees are apt to lose this benefit by conditions of employment which are imposed upon them, and Avliich they accept without choice, it may make this recis()ual)le incident necessary and conclu- sive and enforce compliance with it. The legislature thereby does not force an unsought-for contractual relation upon unwilling parties, but carries out the obligation which it believes to be expressive of the ti'ue spirit of the contract into which Ihe parties have entered voluntarily. Legislation of this character, if genei-iil .ind not arbitrarily discriminating, should, therefore, be regartled as constitutional. There is no reason to iissume tbnt the decision of the Federal Suin-enii» Court in the matter of ti-uck legislation will not l)e followed ir ;i weekly payment act shonhl come before that tribunal, so tliiit the Fourteenth Amendment will ]n'(>sent no obstacle to legislation of this cli;ir;ii'tcr. j 322. Imposed conditions and penalties. — The statutes of several st;ites-' niiikc it uiiiiiwliil \'i>v ;iii citiployci' to ex(Miipt liiniseir l»y speeinl contract with an cinidoyee Irom any liabil- ity he may be under to such cmiiloyec I'ur injuries suffered li,\ him in his employment, resulting Irom tin' fmj)loyei"'s own 21 flpjirnin, MuHmichuHoftH, Monlann, Wynmin^j. § 323 PENALTIES. 3Q9 negligence or from the negligence oi' otlier ])ersons in liis .-ni- ploy, or to require from an employee such a contract or agreement as condition of employment or otherwise. Colo- rado,^2 Montana23 and Wyoming24 embody this principle in their constitutions. Where no penalty is imposed for making or requiring such contract, the provision seems to add nothing to what would be lawful without it; for the courts will treat such an agreement as contrary to public policy and void.^-"* The contract being unlawful a prohibition against nuiking it, enforced by penalties, affords an additional protection to the employee, and thus may be looked upon as a legitimate l)olice measure. >5 323. Penalty for leaving without notice.— Agreements between employer and employee, by which the former under- takes to protect himself, by a stipulation of penalties, from injury he may suffer by the act of the latter, stand on a different footing. They are not unlaAvful at common law, and it has been held that a railroad company may stipulate for a penalty of $15.00 to be incurred by a conductor for violation of a rule against receiving fares from passengers.^^ The question is, are these agrements beyond the reach of the police power as essential to the constitutional liberty of contract? The most common stipulation of this kind seems to be that by which the employee is required to give notice of his intention to leave under penalty of the forfeiture of a stated amount of his wages. Stipulations of this kind are forbidden in Connecticut, and it is provided in Massachusetts, Rhode Island, New Jersey and Pennsylvania that in case of such a stipulation the employer shall be subject to a i)enalty of a corresponding amount if he discharges the employee without giving him like notice, unless-^ such discliarge is jus- tified by a general suspension of work on the part of other employees. It has been held in Connecticut that this ju-ohi- bition does not apply where the agreement is mutual,-^ and the question is left open whether the prohibition of mutual 22 Art. 15, § 15. ^«Birdsall v. Twenty-third St. R. 23 Art. 15, § 16. Co., 8 Daly (N. Y.) 41S>. 24 Art. 19, § 1. 27 New Jersey and Pennsylvania. 25 Lake Shore, etc., E. Co. v. 28 Pierce v. Whittlesey, 58 Conn. Spengler, 44 Ohio St. 471. 9 A. a^id 104. E. Cycl. of Law, 1st edition, p. 913. 310 PEOTECTION OF LABOEEES. § 324 stipulations of that kind would be constitutional. This ques- tion does not arise under the statutes of the other states mentioned, for they, on the eontrary, insist on the mutuality of the stipulation. In doing so they undoubtedly interfert* with the liberty of contract, for they add a stipulation which the parties have not made, and thereby in effect prohibit or annul one-sided stii)nlations. Such legislation, however, is justifiable on the principle above explained that for the pre- vention of opj)ression the ol)ligations of a contract may be defined by ;d)solute and unyielding statutory provision. S 324. Fines for imperfect work.— A law of Massachusetts^^* provided: ".Xo employer shall impose a fine upon or with- hokl the wages, or any part of the wages, of an employee engaged in weaving, for imperfections that nuiy arise dur- ing the process of weaving;" violation pimishable by fine. The act was declared nnconstitutional,-^" on the ground that it compelled payment niulcr a contract of th(^ price for good work where only inferior work is done, and was, therefore, an interference with the eonstitnlional right to make reason- able and proper contracts. Justice Holmes dissented on the ground that if operatives were often cheated out of a part of their wages under a false pretense of imperfections of the work, the legislatui-e had poAver to dejn'ive employers of an h(»nest tool liable to be used for a dishonest purpose, and leave them to an action for damages. Perhaps the safest iZTouM"! ii|niii w liicli Id Uphold the decision is, that the act com- pelled, iiiidef ;i penalty, the employer to ]iei'form liis part ol' ihf (M)iitiMct wlii'ii the employee bad not perroriiie(| iiis. .\ "s I'et'iisjd to perl'driii a eontrael with \\ eaniiot i)e declared wrongt'nl withont rid'ci-ciiee to the (piestion whethei" U is i-ntitled t(» pnce u]">on the rela- tion (if llir riiipldyee to Ilis eiii | ilov (T. it is not pail and parcel i»r it, and tln' a!li'm[it tn hrenk U|> lalxu' unions ma\' lliei'e- •■••• Ljmvh imh. ill. :,ns. Sec. ;i; i.'sM III. i7t;, Tis \. !•;. inn?; Hov. I.awH, fh. Kili, 8 IL'. Slate v. KrciitzljLTK, UJ Wi.s. .'3.30, .Ti.Stnto V. .hilow. Ijn Mo. Ifi.3. !•<» <>() N. W. 1098. I>. I{. A. -257 ; (JillcHpir v. I'.n|,ir. § 326 MEMBERSHIP IN TRADE UNIONS. 313 fore be treated as unlawful interference, if the means used for that purpose do not constitute the exercise of a recof^nised right. A threat of discharge intended as intimidation may or may not be justifiable according to the object sought t«» be accomplished; it cannot be said to stand on the same foot- ing as the discharge itself. While the employer cannot b«' forbidden to protect himself against a hostile union, an at- tempt on his part to coerce the laborer to keep away or witli- draw from "any union," if understood as meaning "any union whatsoever," may be treated as exceeding the measure of legitimate self-defence. Gross forms of intimidation may of course be absolutely forbidden. It would seem then to fol- low that the statutes in question are capable of an interpre- tation under which they may be sustained, without infringing upon constitutional rights, saving to the employer all proper power of defending his own interests, and the right to select his employees, but preventing him from using his position to attack and suppress rights of laborers which the law deems essential to their welfare and advancement. The sound prin- ciple of the distinction is not destroyed hy the difficulty of its application, which is perhaps not greater than the diffi- culty of distinguishing between lawful persuasion and un- lawful intimidation. As long as laborers enjoy the right to combine for the pur- pose of practically coercing employers to accede to their de- mands, the latter cannot be constitutionally forbidden to pro- tect themselves against the pressure of such demands by counter-combinations of their own. The Supreme Court of New York has thus recognised the right of manufacturers to lock out all operatives connected with an association of em- ployees, because of demands of such association which it considered unjust, notwithstanding the existence of a statute for the protection of labor unions against coercion or intimi- dation of their members, which statute, it is true, is not re- ferred to by the court ;3'^ and it has been held in Pennsylvania that a combination of employers to resist an advance in wages determined upon by an association of employees, by refusing to sell to any person who concedes such advance, is not an unlawful conspiracy, since the passage of the Pennsylvania statute making it lawful for employees to combine to raise 37 Sinsheimer v. United Garment Workers, 77 Hun 215. 314 PEOTECTION OF LABOKEES. § 327 wages and to persuade by all lawful means others from work- ing for a less sum.^'*' §327. Blacklisting- and clearance cards. — The practice of blacklisting, i. e. nuirkiug a discharged employee as unfit to be given employment elsewhere, is made punishable by the statutes of a number of states,^^ either as the individual act of a person or corporation, or in the aggravated form of a concerted system of a number of employers. The consti- tutionality of these provisions has not been drawn in question. In XeAv York a civil action for conspiracy was maintained for an agreement not to employ one not a member of a certain organisation.^*^ A blacklisting combination has some of the elements of the boycott, while the individual act may consti- tute unlawful interference. A notice sent by one employer to another regarding the cause of an employee's discharge, especially if in response to an inciuiry, may, however, be free from the objection of either oppression or interference, and in that case m.ust, if truthful, be beyond the police power. It is, therefore, provided in most of these statutes that the provision is not to be construed as prohibiting any person from giving in writing to any other person to whom the dis- charged person has applied for employment, a truthful state- ment of the reasons for such discharge, if thereunto requested ; and the word "blacklist" (especially Avhere prohibited by constitutional provision, as in ^lontana and Utah) should be interpreted as not covering legitimate information corre- s[)onding to a privileged communication in the law of libel.^^ The statnte of Missouri forbids especially the use of fictitious names, or' iii;irks oi- signs for l)lacklisting i)urposes, and the (iernian Trade Code-*- i)roliil)its oiil.\- llic marking of certifi- cates .so as to designate the employee in a nianncr conceakul from him. Till' stiiluli's of some states'-' also |»rovi('iirniii V. flalcn, IHli N. Y. :i.1, ii So hold in Stato v. JnHtiis, H.') 37 I.,. H. A. SOL'. A ciiHo involving; Minn. L'7!), SS X. W. T.'iO. an tmrt'cmviil not 1o «'inpIoy labor- '••■' flcrfiian TckIc Code, § ]].\, CTH on Hfrikc camo before Iho roiirtH ■••■' Florid.-i, (ii'ornia, Indiana, ff I'ennHyivaiiia but wan rlecidcd .Montana, Colorado, Kansaa. § 328 EMPLOYMENT BROKER AGI'3. 315 charged employee must upon his request be furiiishfd witli a statement of the reason of his discharj^e. It is not easy to see what reasonable objection there can be to such a recjuire- ment, yet it has been held unconstitutional in Georj^ia on the ground that the public has no interest in a correspondence between discharged employees and their late employers de- signed for private information, and that such requirement violates the liberty of silence which is correlative to tlu; liberty of speech secured by the constitution. It should be said that the excessive fine of $5,000 imposed by the statute of Georgia made it an unreasonable exercise of the police power.'*^ A provision such as existed under a former English law"*^ to the effect that no one should be allowed to employ a servant who could not produce a clearance card from a former master would be inconsistent with the constitutional right of liberty. § 328. Employment brokerage.— Employment agencies or intelligence offices are regulated by statute in a number of states,'**' The person engaged in the business is required to take out a license and often also to give a bond ; he must keep a register of his transactions, and he is forbidden to take pay where no employment is procured ; in New Jersey municipalities are also authorised to fix the rates to be charged. In Illinois the constitutionality of this legislation has been sustained ■,^" the purpose of preventing fraud is a sufficient justification for the exercise of the police power; the fixing of rates of commissions can perhaps be upheld only if the charges forbidden are plainly extortionate. North Carolina, South Carolina and Georgia have also enacted statutes exacting license fees from emigrant agents who are defined in the statutes as persons engaged in hiring laborers in the state to be employed beyond its limits. The earlier act of North Carolina was declared unconstitutional on the ground that as a tax law it was not uniform in opei-a- tion, and that as a police measure it was invalid on account a Wallace v. Georgia, etc., E. Co., *o Maine, Massachusetts, Rliotlu 94 Ga. 732. Island, Ne\v York. New Jersey, 45 5 Elizabeth, ch. 4. The Ger- Pennsylvania, Ohio. Wisconsin, Miii- man Trade Code makes provision nesota, Missouri, Colorado aii.l for clearance books (Arbeitsbuecher) Louisiana. but prohibits employment without *' Price v. People, 193 111. 114, 61 such only in case of minors (§ 107). N. E. 844. 316 PROTECTION OF LABORERS. § 329 of the unreasonableness of the license fee, there being no regulation or supervision involving any expense, and the busi- ness not being so harmful that it could be prohibited alto- gether.^* The statutes of South Carolina and Georgia and the later act of North Carolina were held to be constitutional.^'-^ The validity of the Georgia act was also contested on the ground that it was contrary to rights secured by the federal constitution. The Supreme Court of the United States held that the question whether the license fee was prohibitive was not properly before it, and considered the act as a measure of taxation. It held that the act did not restrain the individual laborer's liberty of movement, that the business was a proper subject of regulation, and that since the busi- ness was confined to the hiring of laborers for employment outside of the state, the regulation could be equallj^ confined M'ithout unlawful discrimination. It also held that labor con- tracts were not subjects of interstate traffic, therefore the emigrant agent was not engaged in interstate commerce, and the tax not a burden on sucli commerce. ■'•'* ^ 329. Federal legislation for the protection of labor.— The power of Congress to enact ])rotective labor l(>gislation is limited under the constitution to measures incidental to the exercise of admiralt.y jurisdiction, to the regulation of inter- state and foreign commerce, to the power of territorial sov- ereignty, and to the prohibition of slavery. In cxi'cutinii <)[' tlicsi' powers Congress has enacted laws forl)i(iding peonage,^ and the coolie trade;- laws regulating the cniploymciit i»i" seamen,-' and l;iws cxclnding foreign lal)ortM-s.' The IcgishirKiii r<»i- the exclusion of foreign bibot- i-csls upon the sovt'i-cign powci- of the national government to (h-al with foreign ;irr;iii-s ;in'.>7. • U. S. Hcv. St. l!t'.)0, .Wi^O, .')r)27. 41' Shcpi.cnl V. Simiptcr County '•: U. S. Itcv. St. 121.')H. I21fil, act OommisHiontTH, M On. .'),3.'3; State v, Miin-li ;t, isT't, 1 Sii|i|il. p. S(]. NapifT, (Kl S. C. ()0, 41 S. K. i:t-, :' Title M U. S. Hev. St. SfatP V. Hunt, I'JO N. C (iSH, 10 S. ■« (Jontruct Labor Act, Kchrnary K. liHJ. L'ti, 18S5; ChincHC Excluaiou Act of f'» WillianiH v. FcarH, J7<.) U. S. May T), 1892. L'70. § 329 FEDEKAL LEGISLATION. ;J17 others, and the reasons for its discrimination an- not npcn to challenge in the courts."^ The legislation regarding seamen, however, affects Ameri(!an citizens and is an exercise of the federal |)olice power. Tin- contract of employment as a sailor is suJjjeet to various re- strictions, partly foi- the restraint of sailors," partly for the restraint of the master and others dealing with the sailor. Provisions of the latter character arc: prescribing under penalty the form of agreements or sliipping articles and their execution before a shipping commissioner;' requiring tin- payment of wages within two days from discharge,'^ and, if in the United States, in the presence of a commissioner,'' and prohibiting the payment of advance wages, and the payment of any remuneration for shipment to any but an authorised officer.^ "^ While the law does not undertake to fix rates of compensation, or hours of labor, and in general rather pre- scribes what points the shipping articles must provide for than in what manner they must be settled, yet there is undoubtedly such an interference with the liberty of contract as has been condemned by some state courts as unconstitu- tional. As the Supreme Court of the United States has declared sailors to be a dependent class not enjoying the fulness of civil status in their relations to the master,' ^ tin' argument of the liberty of contract would have no force as against the needs of protection as understood by the legisla- ture ; but apart from this consideration, none of the provi- sions mentioned impairs the liberty of contract beyond the legitimate exercise of the police power for the prevention of fraud or oppression. The argument of equality, so strongly relied upon by the state courts in dealing with the labor laws, which cover only special classes of labor, is hardly avaibiblr against congressional legislation regarding seamen, since Congress deals with no other class of laborers. 5 Lees V. United States, 150 U. S. s Sec. 4529. •476. Sec. 4549. G Mainly U. S. Rev. St. See. 4596, '" Act. Dec. 21, LsitS; Patterson v. 4598, to be treated of further on. The Kudora, 190 U. S. 169. " United States Rev. St. Sec. 4511, ii Robertson v. Baldwin, 165 U. 4515. S. 275. CHAPTER XIV. COMBINATIONS OF LABOREHS. §330. Combinations under the English law.i— Combina- tions of workmeu for an advance of wages, besides beinir contrary to the early statutes of laborers passed in the time of the reign of Edward III,- were forbidden by a series of acts of Parliament in the succeeding centuries, partly general in their character,^ partly directed against special trades.* A general statute against laborers' combinations was again enacted in 1800,° and expired by limitation in 1824. In 1824 an act was passed declaring that workmen combining for an advance in their wages, or for shorter hours, should not be liable to prosecution for conspiracy, but making violence, threat or intimidation against employers or other employees or workmen, punishable.*^ In 1825 this was replaced by an- other act which punished all violence, threats, intimidation, molestation or obstruction directed against employees, labor- ers, or employers, to force the abandonment of work, or pre- vent the acceptance of work or employment, or to force or induce compliance with trade union rules, or any alteration in the management of a business, but which allowed meetings and agreements for the purpose of consulting upon and deter- mining the rate of wages, or hours of labor, both on the part of employees and employers." By an act of 1859 it Avas, in addition, made lawful peaceably to persuade others to abstain from wni'U in ordrr lo influence the rate of wages or hours of labor. ^ In 1871 1li<' ads of 1825 and of 1S5II wci-e i-cpealed, ami t\v(i ads suhsl i1 nli'ij, one of wliidi dcdarcMl that li'adc nnions should iidI hf lidd In br illegal by reason (d" the i'ad I Sft'plicii, Ili.stnry of tlic ('riiniii;il m;is(iiis; 17^0, 7 (iciir^^c* 1 Sniliitc 1, l^iw Ml, p. 'J(t.'<-'J'J7. c. I.'?, ajfjiinst .joiirnoymen lailfirs, •■.■L'3 Ivl. Ill, -■. I, K'.r.O. «.(<•.; HOC Steplion Hist, of the (^riin. a Ho ir.JH, J iin Oeo. IV, c. ft.'). riiak<' or iln tlicir work Iml at ji ror- "0 Ooo. FV, c. 129. fain ((rice ,,r rati-. x 'S2 Vict. c. M. • I fl. :; n.nrv Vl, c. ], a^ainsl 318 § 331 HISTORY. .^i^ that they were in restraint of trade, while the other mad.- punishable any coercion for trade purposes by personal vi<»- lence, threats, or molestation or obstruction, by personally following about or watching another, or hiding his tools." This latter act was again replaced by another of 1875, which distinctly declared that a combination to do an act in further- ance of a trade dispute should not be punishable, if the act, if committed by one person, would not be a crime, but made punishable any violence or intimidation to compel another, and also wilful breaches of contract liable to cause serious hai-m to persons or property.^ ^ The matter of combinations thus being constantly affected by statutes, some of them very general in their terms, it was extremely difficult to ascertain what was the common law upon the subject, and the opinions of judges and writers varied considerably,! 1 but there Avas undoubtedly at all times a strong current of opinion to the effect that a strike constituted a form of indictable conspiracy irrespective of statute. This view in the course of the last century gradually gave way to a distinction between peaceable combinations and such as were attended by force, threats, intimidation and obstruction. § 331. Earlier American cases and statutes.— Some very early American ctises are reported in which the legality of laborers' combinations was considered. In 1806 in Philadelphia a number of shoemakers were con- victed for combining to compel other shoemakers to quit work to force an increase in wages. The indictment charged threats and other injuries, so that it seems that it was a case of coer- cion, but the court dwelt principally upon the wrongfulness of strikes as an "artificial" means of raising wages.' - In 1810 a conviction was obtained in a similar case in New York. The court left the question open whether a simple agreement not to work except for certain wages was a con- spiracy. The defendants were regarded as having acted in ignorance of the law, and a nominal fine was imposed. '^ In 1815 in Pittsburg it was held that a conspiracy to coerce an employer to have only a certain description of persons « 34 and 35 Vict. c. 31 § 32. 12 Carson Crim. Conspiraoios, p. 10 38 and 39 Vict. c. 86. 145. 11 See Stephen Hist, of the Crim. i"* People v. Melvin, L' Wheeler Cr. Law III, p. 209-227. C. 262. 320 COMBINATIONS OF LABOEERS. § 331 in his employ, to prevent men from freely exercising their trade, and to compel them to become members of a society of Avorkmen, and contribute towards it, was unlawful.^ ^ In 1821 in Philadelphia (at Nisi Prius) Justice Gibson held that a conspiracy artificially to depress or raise wages Avas unlawful, but that a combination to resist a combination might be lawful if its purpose was merely to give labor its due value.^^ In 1823 in New York a conviction Avas obtained against journeymen hatters for inducing, by threatening to leave their work, a master hatter to discharge an employee who was not a member of the society of journeymen hatters, and who worked for ''knocked down" Avages. The facts of the case shoAv that this Avorkman had been subjected to a considerable amount of molestation. ^'^ In 1827 in Philadelphia tAventy-four journeymen tailors Avere indicted for a conspiracy to increase their Avages and lessen the profits of tailors, by quitting Avork, assembling in the streets, obstructing Avorkmen aa^io continued at Avork, and, i»y threats, intimidation niul Adolence, trying to induce them to (juit Avork. The Recorder charged that the action consti- tuted conspiracy.^" The New York Revisers in 1829 in codifying the law of conspiracy included in their definition, conspiracies "to com- mit any act injurious to ])ublic health, to i)ublic morals, or to ti"ide or connnerce."'^ 'I'his was held to co\'er the action oi" a club of jt)urneynu'n shoemakers in establishing a ])y-law imposing a fine ui>on any journeyman who should makt' a pair of shoes for less lli:in the lixcd price, jind agreeing not to work for any master employing such offending journeynien.''' The court took occa- sion to say "A conspii'.-icy 1o r;iise wages oi" jniinie\iiien shoe- makers is ;i iii;itli'r ol" |)ul)lic concci'ii in whii-li llie |»ul)lic have i« f'ordwniiHT'H r.isf, Carson, v:iiii:i in 1 SOit. <'(>inmw. v. ('urrt'ii, f'riiri. ('oiiH|)ir!i(i«'H, |). \r>0. ',) I'illsl). II. '5. in Com. ex rcl. Clii-w v. (;urliHle, i" INdjilc v. TrcMinicr, I Wli. Cr. F'.ri^,'^ltly (Pa.) p. 36. A conviction C It Li. f(ir a conHpirary to coerce by Mie '7 (laHO of .Joiirncyinrii 'I'jiilorH, HimnltaneowH (|nittiti(i of work an em- Car.son, op. cit. j). ir).*?. ployer to reiriHtali' !ni iiutunpetetit "* L' Mow St. ji. ()!•!!. workman was ol)tainc<| in I'riuiHyl- '" t'c'iplc v. Fislicr, II Wcml. 9. § ;332 EARLY CASES. 321 a deep interest, and is indictable at common law. Journey- men may singly refuse to work unless tlicir wa{,'es arc ad- vanced, but if they do so by preconcert or association, it becomes a conspiracy." A similar combination was made the subject of an indictment in Massachusetts, and a convic- tion was obtained in the lower court.-" The Supreme Court said that the manifest intent of tlic association was to induce all engaged in the like work to join it, that such a purpose was lawful or unlawful according to the purpose for wliidi the power of the association was intended to be used, and thai the indictment was defective in failing to charge an unlawful purpose. 21 It was said that the agreement of the members of a temperance society not to work for any one employing a non-member might be laudable. In New Jersey in 1867 it was held that a statutory prohibi- tion of conspiracies to injure trade did not apply to a threat on the part of a number of employees to leave unless another employee was dismissed, but that such a combination was coercion or oppression punishable at common law irrespective of statute.-^ In the same year in New York it was stated, as the result of an examination of the American authorities, that it is lawful for any number of journeymen to agree that they will not work below certain rates, but that any association or combination for the purpose of compelling journeymen or employers to conform to any rule, regulation or agree- ment fixing the rate of wages, to which they are not parties, by the imposition of penalties, by agreeing to quit the service of any employer who employs a journeyman below certain rates unless the journeyman pays the penalty imposed by the combination, or by menaces, threats or intimidation, violence or other unlawful means, is a conspiracy for Avhich the parties entering into it may be indicted.-^ These are the principal of the earlier American decisions made before the era of strikes of enormous proportions which assumed national importance, and they bear out the conclu- sion in the case last cited. § 332. Question of the legality of a strike.— There is no 20 Commonwealth v. Hunt, That- -- State v. Donaldson, 32 N. J. L. Cher Cr. C. p. 609. l-'il. 21 Commonwealth v. Hunt, 4 Mete. 23 Master Steveilores Association 111. V. Walsh, 2 Daly 1. 21 322 COMBINATIONS OF LABORERS. § 333 American decision in which a simple strike has been punished as a conspiracy. The statement in People v. Fisher above (jnoted was a dictum not called lor by the facts of the case. The Suprem*^ Court of Pennsylvania pointed out that English decisions shouhl not be taken to conclude the American law in this matter: 'There are indeed a variety of British prece- dents of indictments against journeymen for combining to raise their wages; but it has been thought sound policy in England to put this class of the eoninmnity under restrictions so severe, by statutes that were never extended to this country, that we ought to pause before we adopt their law of con- spiracy, as respects artisans, which may be said to have in some measure indirectly received its form from the pressure of positive enactment, and M'hich, therefore, may be entirely unfitted to the conditions and habits of the same class here. "2-* The principle of the liberty of strikes has indeed become so firmly established through custom and public sentiment that it is no longer questioned by any American court. In New York it was in 1870 confirmed by a statute which declared that "the orderly and peaceable assembling or co- operation of persons employed in any calling, trade or handi- craft, for the purpose of obtaining an advance in the rate of wages or compensation, or of maintaining such rate, is not a eonsi)iracy."2-'5 Similar declarations are to be found in the statutes of other states.^" vj 333. Intimidation and coercion. Tlic general principle f)i" the legality of strikes does not cover those forms which are niarke. Ind. Coiikii. V, \'.V2; Oon- firiylitly (l':i.; :«■>, IHiil, iicctifiil. Dclnwurc, Kansas, Illinois, ■if' IVnal (!o. M:iin<'. Mi,sHi8si|>i>i, New Jersey, '-'" IndiiHtr. ('f)nim. R('|i. V, \>. \'.'>\ l'i'iiiisylv:ini:i. f MinticH(it;i, Montana, Norlli I >:> k(.fa). 833 INTIMIDATION AND COERfTOX. 323 the refusal to carry out a special piece of work or j(»l) whit-ii has been undertaken, since the entering upon the wtirU implies a contract to finish it.^^ Apart from this consideration the abandonment of a locomotive involves great public danger and inconvenience, and may be made punishable for that rea- son, as pointed out before. In New York, following the Eng- lish statute of 1875, this principle is applied to all breaches of contract, the probable consequence of which is to endanger human life, or to cause grievous bodil}' injury, to to expose' valuable property to destruction or serious injury.^" The most important check upon the right of combination is. however, to be found in the prohibition of its use for thi- purpose of coercion. The New York Penal Code of ISSl-"*" added to the objects of a criminal conspiracy, defined in the Revised Statutes, the following: "To prevent another from exercising a lawful trade or calling, or doing any other lawful act, by force, threats, intimidation, or by interfering or threat- ening to interfere with tools, implements or property belong- ing to or used by another, or with the use or employment thereof." The English legislation of 1875 seems to have been of influence in bringing about this statutory change. Coercion is generally directed against other laborers or employees, wnth the object of making them join the com- bination and quit work in furtherance of its purposes. It is unlawful at common law to entice or induce a servant to leave his employment, and in a number of Southern states^^ this is made punishable by fine. The unlawfulness of the act does not depend upon coercion, but is often said to require malice. •''^ To constitute a criminal combination, however, coercion as distinguished from persuasion is generally required, and in New Jersey persuasion to join a combination was expressly legalised. 33 Force, violence, threat, menace and intimidation are some of the words commonly used to express the idea of coercion; so Pennsylvania provides^^ that the legalisation of combinations shall not prevent the punishment of th(^ use of 28 Mapstrick v. Ramge, 9 Nebr. Kentucky, Mississippi, North Caro- 390, 2 N. W. 739. Una, South Carolina. Tennessee. 2!> Penal Code, Sec. 673, 32 Bowen v. Hall, ISSl. 6 Q. H. O. "oSec. 168. 333; Walker v. Cronin, 107 Mass. 31 Eep. Ind. Comm. V, p. 74, Ala- .').5.5. bama, Arkansas, Florida, Georgia, '•.■! Laws 1883, eh. 28. 34 Act June 16, 1891. 324 COMBINATIONS OF LABOREES. J^ 333 force, threats or menace of harm to person or property to hinder any persons who desire to labor for their employers from so doing; and the display of force, following about, and the use of opprobrious epithets is regarded as actionable. ^^ In- timidation has a somewhat vague meaning. A "request" to stay away from a shop, with an assurance that compliance would command the protection of the employees, "but in no case are you to consider this as an intimidation," was held to be, under the circumstances, a direct threat and intimidation and punishable as such.^" Some statutes specify molesta- tion,3" or persistently following,38 as punishable acts. The well- known custom of "picketing" has been declared unlawful in ?ilassachusetts,3^ and so more recently the threat of a strike directed against an employer to induce him to dis- charge employees refusing to join the association in whose behalf the threat was made.^'* The threat of direct violence or of plain forms of illegality is, therefore, not necessary to make a case of intimidation; the question is whether social pressure resulting from numbers is sufficient for that purpose. If so it would be almost impossible to distinguish between coercion and organised persuasion such as comes from a com- bination of workingmen. It seems that in IMassachusetts where the question has received the fullest discussion, mere organised persuasion is not unlawful,"*^ but that holding forth the prospect of a strike witli incident "trouble," will be re- garded as intimidation."*- The New Jersey statute legalising "persuasion" to join a combination likewise referred to organ- ised persuasion. The safer rule would seem to be to recpiire that to constitute intimidation the methods of coercion must l)(' such as will suggest, and as ai-c evidently intended to suggest, something diffcrenl IVnin .hkI in ;iddition 1(» the mere exercise of :i legal riglit or iiiei-c iii(»r;il (lisai)probation. Co- at O'Neil V. Bcliiinii.i, ISL' P;i. L':?(), T(>:mislors Protcctivo TTnion, US 38 L. R. A. 38L'. Midi. 4<»7, 412 L. R. A. 407. ••«<> Re Doolittle et jil. L'.'l Fed. r.44. ••"Plant v. Woods, 176 Mass. 492, " Delawaro Rev. Code, 1893, cli. 5? N. K. 1011; contra: National 127. I'roloclivc AHsocialion of Stc-nn aNf'oiinccticii) (ifu. St. 1MSS, Neb. ^'* <•(..!(. 1888, Art. 27, Snc. ;n. .njMi, J N. W. 7:i!t. § 336 STRIKES AND DISORDER. 327 nature from the individual act, and whether, if so, it should be treated as unlaAvful, must depend upon eircuuistanecs, and may be determined by considerations of policy within thf control of the legislature. The element of coercion and oppression in particular may depend entirely upon numbers. The whole common law of conspiracy is based upon the theory that the combination of several or many creates a danger not necessarily belonginf^ to the act of one, so where a conspiracy to cheat is treated as a crime. From that point of view alone, the right to quit an employment does not of necessity imply that the agree- ment of many to quit simultaneously may not be unlawful or may not be made so by the legislature. § 336. Strike as a source of disorder.— Conceding that the right to agree to quit work, and to carry out that agreement by concerted action is not an absolute constitutional right, its prohibition might be defended under the principles of the police power on the ground that the strike, even if intrinsi- cally free from acts of illegality, yet has a natural and almost inevitable tendencj^ to lead to acts of coercion if not to acts of violence. So it has been held that the right to trade near a camp meeting ground may be prohibited merely because it tends to produce disturbances.^*^ To a large proportion of strikes may be applied the words used by the Supreme Court of Massachusetts in a recent case: ''It is well to see what is the meaning of this threat to strike, when taken in connec- tion with the intimation that the employer may 'expect trouble in his business.' It means more than that the strikers will cease to work. That is only the preliminary skirmish. It means that those Avho have ceased to work will by strong, persistent, and organised persuasion and social pressure of every description do all they can to prevent the employer from procuring workmen to take their places. It means much more. It means that, if these peaceful measures fail, the employer may reasonably expect that unlawful physical injury may be done to his property; that attempts ni all the ways prac- ticed by organised labor Avill be made to injure him in his business, even to his ruin, if possible ; and that by the use of vile and opprobrious epithets :iiid other annoying conduct, •49 Commonwealth v. Bearse, 1312 567, 12 N. E. 79. Mass. 542; Meyers v. Baker, 120 111. 328 COMBINATIONS OF LABOKEKS. § 337 and actual and threatened personal violence, attempts "vvill be made to intimidate those who enter or desire to enter his employ; and that whether or not all this be done by the strikers or only by their sympathisers, or with the open sanction and approval of the former, he will have no help from them in his efforts to protect himself. However mild the language or suave the manner in which the threat to strike is made under such circumstances as are disclosed in this case, the employer knows that he is in danger of passing through such an ordeal as that above described, and those who make the threat know that as well as he does. Even if the intent of the strikers, so far as respects their own conduct and influence, be to discountenance all actual or threatened injury to person or property or business except that which is the direct necessary result of the interruption of the work, and even if their connection with the injurious and violent conduct of the turbulent among them or of their sympathisers be not such as to make them liable criminally, or even answer- able civilly in damages to those who suffer, still, with full knowledge of what is to be expected, they give the signal, and in so doing must be held to avail themselves of the degree of fear and dread which the knowledge of such consequences will cause in the mind of those— whether their employer or fellow workmen— against whom the strike is directed; and the measure of coercion and intimidation imposed upon those against wliom the strike is threatened or directed is not fully realised until all those probable consequences are considered. Such is the nature of tin- lliivnt, and such the degree of coercion jind intimidation involved in it.""'"^ §337. Strikes and trusts.-If it hr argued — and this argu- ment should b(! controlling— that the danger nf nhuse (hx-s not justify the entire denial or abrogation of ;iii impiu-lnnt eco- nomic right. i)iit ;ill(»ws at most its reguhition l)y i-cison.ihlr restriftif)ns, still the prohibition of strikes cannot be regarded MS exeecding the limits ot' legislntive power. ;is long ns tin- anti-trust acts are iiiiheld ;is eonstitut ion;il. Il is imi»ossil)le to say that there is such diU'erence Ix'tween the price of hihor and till' prii I' other eoiiiMn»dit ies. th;it Jigreements to raise the former arc h.-yomi tlic legislative power ol' pidliihit ion. wliile agreements to raise tin- lattci- arc suhjcci to i|. Both '■•"Plant V. WooflH, I7('. M;iss. I'.tL'. r.7 N. 11. mil. § 337 STKIKES AKD TRUSTS. 329 are equally in restraint of trade as undcrstootl in our law; that is to say in restraint of free competition. It would hv no- ing too far to say that the exemption of labor make-s the anti- trust acts unconstitutional as class legislation ; but since the validity of anti-trust legislation is upheld, the most that can be said in favor of strikes is that it is within the limits of legislative policy to discriminate in favor of wages; but hibor cannot claim, as a matter of constitutional right, tiiat it is exempt from a power of the state, which extends to .ill oiIki- contracts and commodities. The discrimination between em- ployers and employees in this respect was adverted to, but an expression of opinion declined by the Supreme Court of Pennsylvania,'^^ and it has been sustained as legitimate classi- fication in Nebraska.'^^ 51 Cote V. Murphy, 159 Pa. St. ^2 ciclaiul v. Anderson, (Neb.), 92 420. N. W. 306. CHAPTER XV. COMBINATIONS OF CAPITAL. RESTRAINT OF TRADE, MANIPULATION OF PRICES, AND TRUSTS AND MONOPOLIES. § 338. English legislation.— The English statutes and law books mention three kinds of practices calculated to make necessaries of life and other eonnnodities expensive: fore- stalling, regrating, and engrossing. Forestalling is the buy- ing of merchandise or dead victual coming in the way of market, dissuading persons from bringing goods there, or inducing them to enhance tlir i)!-i('i'. Regrating is the buying of corn or dead victual and selling it in the same market, thus making the purchaser pay a double profit. Engrossing is the buying wholesale in the domestic market and selling again wholesale. i The earli(>st provision against practices of this kind seems to be the Judiciuin pilloriae of 51 Henry Til (1266) "de forestallariis qui ante horam debitam et in villa statutam aliquid emant contra statutuiii vilhu' rt mercati."- Ill the Statutes of the Realm, acts against regrators, fore- stallcrs. and engrossers, eitlu'r giMK'i-ally oi- in specified com- modities, are foiiiHl in I'T l^d. Ill slat. 1. in 2 and 'A Ed. VI c. 15, 'A atira('ti('i"s contiiuied to b(^ held |iiniislial)li' a1 ciuiinioii la\v, the coniniDii law offenses were aholislii'd in 1S44 l»y 7 and 8 Vict. di. 24. Condiinations having a like tendency or puri)ose wci-c not scpai-atcly dealt with by I'iiiglish sta1nt(ii\v legislat inn. Init were pnnishahli' <'ith BInrkHtone'H C'onini. I V. \M; -n'd (Ion. III. . h. 71. Coko'H '\<\ InHt. |i. I!!.'). ' .\h tfi till' (-iiiniiion law in I Hfoj)!)*^?!, HiHt. f'rim. I,:i«, III, ,\iiici'i('ii hcc liiHlii)|)'H New CriniiTKil p. 200. liJiw I. Sec. .^IH-.TJSt. •.v.io § 339 AMEKICAX LEGISLATION. 3;jl ity to enact ordinances against these practices, so the first city charter of Chicago of 1837, and the present City Act of Illinois/' But the city of Chicago has enacted no ordinances in pursuance of this power. Where the criminal law has been codified, the definition of consi)iracy includes among the un- lawful objects, acts injurious to the public trade." There is a marked contrast between this spar.se and in a manner perfunctory legislation until about ten or fifteen years ago, and the recent legislative activity upon the subject of manipulation of prices. The attempt to raise and maintain prices Avill naturally tend toward the form most effectual for the purpose, which is the creation of a practical monopoly, and this will be undertaken as a rule only by a combination of persons. Combinations of this kind have come to be known as trusts, in consequence of the peculiar form of organ- isation adopted in some of the most conspicuous cases. The tide of legislation against trusts covers the period from 1889 to 1899, during which there were enacted in tAventy-seven states and territories, and by the United States, about seventy statutes for their suppression and punishment. A few typical examples will illustrate the statutory defini- tions of trusts: The Illinois statute of 1893 defined a trust as follows: A combination of capital, skill or acts by two or more persons, firms, corporations or associations of persons, or of tAvo or more of them, for either, any or all of the following purposes: 1. To create or carry out restrictions in trade. 2. To limit or reduce the production or increase or reduce the price of merchandise or commodities. 3. To prevent competition in manufacture, making, transportation, sale or purchase of merchandise, produce or commodities. 4. To fix at any standard or figure whereby its price to the public shall be in any inanner controlled or estal)lished. any article or commodity of merchandise, produce or manu- facture intended for sale, use or consumption in the state. * * * 5. To make or enter into, or execute or e;u-i-v out any contract, obligation or agreement of any kind or deseription l)y which they shall bind or have bound themselves not to sell, dispose of, or transport nny nrtiele oi- eommodity. or article nAit. V, Sec. 1, No. 51, "to pre- "=111. ("r. Coile, See. 4(i; X. V. vent and punish forestalling and Penal Code, Sec. 168. regrating. ' ' 332 COMBINATION'S OF CAPITAL. § 339 of trade, use, merchandise, commerce or consumption below a common standard figure, or card or list price, or by which they shall agree in any manner to keep the price of such article, commodity or transportation at a fixed or graduated figure, or by which they shall in any manner establish or settle the price of any article or commodity or transportation between them or themselves and others to preclude a free and unrestricted competition among themselves or others in the sale or transportation of any such article or commodity, or by which they shall agree to pool, combine or unite any in- terest they may have in connection with the sale or trans- portation of any such article or commodity that its price might in any manner be affected. All such combinations are made misdemeanors." Substantially the same definition is to be found in the statutes of Louisiana, Texas, Kansas and Nebraska. The ^Michigan act is directed against all contracts, agree- ments, understandings and combinations made, entered into, or knowingly assented to * * * the purpose or object or intent of which shall be to limit, control, or in any manner to restrict or regulate the amount of production or the quan- tity of any article or commodity to be raised or produced by mining, manufacture, agriculture or any other branch of busi- ness or labor, or to enhance, control or regulate the market price thereof, or in any manner to prevent or restrict free comi)etition in the production or sale of any article or com- modity.* The New York act of May 7, 1S!)7. declares unlawful "every contract, agreement, arrangemi'iil of comhination, whereby ;i iiioiiopol_\- ill llic iii;imifacture, production or sale in this state of Miiy ;ii-li<-lr or coiiiniodity of coiiinion nsc is or may be crcatcfl, cstahlislicil oi' m,iiii1;iiii(Ml, or wlici'cby competi- tion in lliis state in tin.? supply or iirirc of ;iny sucli article Of cf the United States, New York, and New Mexico; by the statutes Insuraiu-e is not included vukUt Aetna Insurance ("o. v. Commou- commodities. Queen Insurance Co. wealth, 21 Ky. Law Rep. 503, 45 L. V. State, 86 Tex. 250, 24 S. W. 397; K. A. 355. 334 t'OMBi.XATiONS OF CAPITAL. § 341 against comers on the luavket eiuu-tiHl in Illinois and Tennes- see; and by a provision of the statute of North Carolina for- ])idding the selling- at less than cost to break competition. Omitting the last mentioned provision, all the acts or prac- tices condemned may be brought under the head of either combinations in restraint of trade, or monopolies. § 341. Federal anti-trust legislation.— The federal legisla- tion against trusts rests upon the jjower given to Congress "to regulate commerce Avith foreign nations, and among the several states." Of the principal acts dealing with combina- tions, that of 1887, the Interstate Commerce Act.^o forbids the pooling of freights by competing interstate railroads, that of 1894 forbids combinations by importers.' ^ and that of 1890 (the Sherman anti-trust act)'^ declares to be illegal every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce between the states or with foreign nations, and makes it a misdemeanor for any ])erson to make such contract or engage in such com- bination, or to mon<)i)olise, or to attem])t to monopolise, or to combine with any other person to in()noi)olise, any part of such traile or (Muumerce. As the federal i)ower ol" legislation is confined to interstate nnd foreign connnerce, it has become necessary to determine what combiiuitions belong to this category. The Sn])i-<'in(' Court has derided tli.'it the attempt to buy up the plants of the four most important in(le|>end(Mit siigai- i-elineries in the connti-y is not Avithin the act ol' ISDO, since manufacture is not connneice. "Contracts, conil)ina- lions. or conspiracies to conti'ol domestic enteriu'ise in nianu- laclui'c, agi'icult nre, mining, pi'oduction in all its I'oi'ms, oi- to raise (II" lower pi-iees or wages, mi'jiil niKineslidiiahlv lend lo restrain cxleninl as well as domestic tr;ide, Imt the restraint woulil he an indirect result, liowe\er inevitahle and whatever its extent, and sn. rt'29. iMTnilc.l SfjilcH v. K. C. KniKlil, 11 A 15 Hopkins v. United States, 171 Fed. 149. U. S. 578; Anderson v. United i7 Louisville & X. R. Co. v. Ken- States, 171 U. S. 604. lucky, 161 U. S. (577, 703. 10 United States v. Workinginen 's is Paul v. Yirpinia. S Wall. 168. Amalgamated Council, 54 Fed. 994; 336 • COMBINATIONS OF CAPITAL. § 342 formation of such a combiuatiou, though eoucerns bekmgiug- to different states be parties to it.^'' A state cannot prevent a commercial trust of another state from entering its territory for the purpose of interstate business;-" nor can it prevent an industrial trust organised in another state from coming into its territory for the purpose of selling its products to be sent from the state where they are manufactured. Probably a state cannot even prevent its own citizens from combining in its own territory to restrain free competition in the importa- tion of goods from outside of the state, although prohibitions to that effect are found in the anti-trust laws of several states.2i But all that the state cannot do, Congress may do, and while Congress cannot prevent the organisation of an industrial monopoly, it can probably forbid the sale of its products to other states, after it has been organised.-^ There are some passages in the opinion in United States v. E. C. Knight Co. that lend some support to the con- tention that an industrial monoi)oly is beyond the power of Congress even as to the sale of its manufactures, such sales being merely incidental and collateral to manufacturing; but this evidently cannot be. The sale of the manufactured prod- uct from one state to another not Ix-iiig within the control of any one state, must be under federal control. The trans- action passed upon hy the court was a sale of corporate stock and not a sale of sugar, and while an intent to monojiolise the sale of sugar to other states was charged, it came l)efore the court merely as an ulterior ])uri)0se, and not as the subject matter of any transaction which was directly involved in the ease. >;■ 343. Restraint of trade at common law. — In order to 1" U. S. V. E. C Kiii;,'lit Co., ir»() over forma may be .adopted. For T. S. 1. constitutional jxirposos Die controll- i"* Cnitclicr V. Kentucky, 1-11 U. S. in^j (inrstion is wlictlicr tlio salo is 47. tor .slii|inient to another state, and •' ArkanHas, Minnesota, *Montana, tliis i)urp()SG may be {j:ithereil either TennoHHee, and Utah. from tlie fact that the pnrch.iser 22 Nor, it BCCmH, can the imucr of transpoi'ts ;in arlii'h- in its orij,niial ConfjrcHH T)e evaded by paHsinp title package to anotlier state, or tliat within the state of manufacture; for the manufact>irer or such intermedi- ('onpress must have constitutional ary :is he may employ r(>ceiveH pay- authority to treat a tr:insactiuii nicnl hy n'oiitlaiicc from .-inothcr nccor'iinp to its ri'al nature, what- slate. g 344 KEbTKAiiXT Ui' TlLVDE AT CUM.MuX J.AW. 337 understand the modern anti-trust legislaliou, it is m-c-essary to advert briefly to common law principles. That the spirit of the common law strongly favored free competition in triidi- is well established. But this general policy did not prevent practices and institutions sanctioned by authoi-ity which ran contrary to the principle. ^Monopolies were granted by Royal Letters Patent until the courts and Parliament declared tin- practice to be illegal ;23 but monopolies could of course at any time thereafter be authorised or created by Pai-liamcnt itself. Immemorial custom sanctioned also th;- privileges of guilds and regulated companies which were expressly saved by the Statute of Monopolies, and with reference to which it was said, that bye-laws in restraint of trade might hiwfully h<- made, not to restrain or cramp trade generally, but oidy for its better government and regidation, or for the benefit of the place and to avoid public inconvenience, or for the im- provement of the commodity. 2^ The status of monopolifs sanctioned by authority will be discussed in connection with the constitutional principle of equality. Restraint of trade resting upon private arrangements has this in common with a privileged monopoly, that it lessens or suppresses competition, and this indeed is the chief mean- ing and essence of restraint of trade. Practically it alw;iys takes the form of an agreement, and the question of legality or illegality arises in two different ways ; either : shall the agreement be enforced or not? or, can the agreement be treated as a tort or crime or cause of forfeiture? Illegal may mean both void and wrongful, or it may mean simply unen- forceable. The usual forms of arrangements tending toward restraint of trade are as follows : § 344. Associations with restrictive bye-laws.— 1. An asso- ciation of persons engaged in the same trade, the bye-laws of which restrict the members in the conduct of their business, binding them to charge certain prices, or not t(^ sell certain articles. Such bye-laws are void, and the nuiking of tlu'in IS not within the charter- power of a corporation organised to promote the common trade interests of its members. ^^ 23 See. 656, infra. ^n KolflF v. St. Paul Fuel Ex- 24Mitchel V. Eeynolds, 1 P. W. chniipe, 4S Minn. 215; Xostor v. 181. Continental Browing Co.. 161 Pa. 338 COMBINATIONS OF CAPITAL. § 345 ^ 345. Agreements not to deal with persons acting contrary to agreement. — 2. The forinaliou or inaiiitenanee oi* associa- tions, tlie members of -which bind themselves, or try to induce their customers, not to deal Avith persons wlio refuse to abide by their rules or refuse to join tlicni. oi- who are not mem- bers. The chief question is then, are they liable in damages to the person whose trade they cut off? The leading case upon the subject is ^logul Steamship Company v. ^McGregor (Jow & Company. -•'• The defendants had formed a combination of steamship companies engaged in the Cliina trade from v.-hich the plaintiff, competing carriers, were excluded. The defendants gave notice to the China merchants that any ship- ment by plaintiff's vessels would debar tlicm fi-om the benefit of certain rebates which they otherwise granted to shippers dealing exclusively with them; at tlie same time they began to charge low and luiimus rates of shipment in order to under- bid plaintiff" and drive it out of trade. It Avas held that there was no actionable conspiracy, and that the acts charged would not constitute a crime. The decision Avas chiefly based upon the argnment tbat competition in trade is sufficient justification for injury inflicted upon another, provided it does not descend to fraud, intimidation, obstruction, molesta- tion, oppression, oi- the intentional procurement itl" the viola- tinii of individual I'iLiIds. ;iiid that it does not make any differ- ence whether the action is indi\idual or concerte(|. since combination in trade is the only means of equalising conditions, wealth and economic ]iow \i. ]{. A. •'"tfit ; Mihvimkcc .Miihoiih j.iirlirs sucli !in JiMHoci.-ifion coiisti- & R, AHHOfintioii v. Niozorowski, HH IntoH ;m ■•utioii.'ililc coiiHjiinicy. WiH. 120. 37 T,. f?. A. l'-'7; P.uutw.ll -•" ISH'J App. fas. 2."). §346 EXCLUSIVE ShJLLhMi AKKAiNCiEMEiNTS. 339 injunctions, and the relief asked for has been (h'nit-d in a number of cases. In Illinois the court refused to compi-l admission to membership in a live stock exchan{>:e or to enjoin the exchange from notifying its members not to deal with complainant. 2" The bye-laws of tlie association even if void were held not to be actionable, on tiie authority of the Mogul Steamship Company case. In Matthews v. Associated Press,-'* a bye-law of the Associated Press forbidding its members to receive and publish the dispatches of another association was sustained, the court evidently inclining strongly against the doctrine of restraint of trade, and doubt- ing whether the collection and distribution of news came under the head of trade. In Minnesota the court refused to interfere with the agreement of an association of retail lumber dealers to the effect that they would not deal with any manu- facturer or wholesale dealer who should sell directly to con- sumers at any point where a retail yard w^as carried on, upholding the right of association in strong terms,-*' but a contrary view was taken of similar agreements in Indiana and Texas,^*^ and an injunction against carrying such an agree- ment into effect was granted in Georgia. ^^ None of these eases arose under an anti-trust statute. An agreement similar to the one passed upon in the Chicago Live Stock Exchange case was held not to be illegal under the federal anti-tru.st act, since it had no direct relation to interstate commerce. •"'^ The court also seems to regard an association which admits any one willing to abide by its terms to membership as not being in restraint of trade, but if the object of the bye-laws is to maintain prices, it can hardly be doubted that it would be covered by the provisions of most anti-trust statutes. § 346. Exclusive selling arrangements— Rebates.— 3. Sales with provisions for maintaining prices or for the exclusive handling of goods. Arrangements of this kind are especially 27 American Live Stock Coiniuis- Palteii, 7 T(>x. Civ. 630, 25 S. W. sion Co. V. Chicago Live Stock Ex- 428. change, 143 111. 210, 18 L. E. A. 190. ^i Brown & Allen v. Jacobs Phar- os 136 N. Y. 333, 32 N. E. 981. niacy Co.. 115 Ca. 429, ^7 L. R. A. 2oBohn Manufacturing Co. v. W. 547. G. Hollis, 54 Minn. 223. 32 Anderson v. Fiii1.>.l States. 171 ••io Jackson v. Stanfield, 137 Ind. V. S. 604. 592, 36 N. E. 345; Olive v. Van 340 COMBINATIONS OF CAPITAL. § 346 common between manufacturers and dealers. Where a manu- facturer employs a selling agent, he may undoubtedly stipulate that the agent shall not sell below a stated price or that he shall not handle goods of rival manufacturers.^^ This is true even where he employs many selling agents, for the sales are still his own, and Avhile competition between the agents as to prices is prevented, it must be remembered that such competition would be possible only by violating the duty of the agent to carry out his principal's instructions. The manufacturer may also sell to the dealer and either promise that he will not sell to others, or stipulate that the dealer will not handle rival goods or will not sell below a stated price. Fre- quently this latter agreement is made in this form that the dealer, if he lives up to his agreement, becomes entitled to a rebate from the selling price. In the absence of anti-trust acts, and in the case of goods manufactured by secret processes (patent medicines) such arrangements have been held not to violate the common law rule against restraint of trade. '"^^ In Texas the arrangement under which the dealer purchases of the manufacturer is treated differently from that under which he acts merely as an agent, and is held to fall under the prohibition of the anti-trust act,^-' but in New York an agree- ment to grant a rebate for not selling below the manufac- turer's price is held lawful notwithstanding the statute.^^ On the other hand, the refusal of a monopolistic corporation to sell to those handling rival products has in New York Ix'cii treated as a conspiracy.-'^ In the case of John D. Parks & Sons Co. v. National Whole- sale Druggists Association,'''* the defendant association, repre- senting 90 per cent of the w Imlcsale trmlc, lind i-iMjuired the manufacturers of patent medicines in the I'liited States to coni|i«'l tip' purchasers of llicir i^-oods to accept a conti'.id ••>■•> Wr'lrh V. Pliclps, etc., Co., 89 Hutch, 19 Tex. Civ. A|.|). IJO, 17 S. Tox. ().":?, MuHH. Kcv. Laws. di. ->r,, W. L'SS. § 1. -'"WmIsIi v. i>\vij,'lit, M X. V. S. a+Fowlo V. I'.irk, K!) V. S. SS ; !M, Id App. Div. .'■)I.T ; .Tdlm I ). I':irks (JurHt V, HarriH, 177 Miihh. 7L', 58 N. cV Smis Co. v. Nut 'I W. DnijjjriHts I>. 174; Hfc jiIho Tivi fJroonc, rt2 Fcfl. Ahh'ii, (i7 N. !•'. KJO. 104; United HtuloH v. (irccnlmt, TjI •'' I'r-npl.' v. I)nl<.-. If N. V. Siipjii. Fed. 213; Duebnr Watch Cane Co. :VM. V. Howard Watch Co., HC. I'cd. (5.37. •'"* (57 N. li:. I.'IC. •■"■' ('(dntiiliia C a r r i a ^ c Co. v. § 34G REBATES. ;}41 whereby they became bound to .si-U at the prices iixctl by thi* manufacturer, purchasers violating: such contract to h)sc-"* th<* rebate otherwise granted them on the selling price. The plain- tiffs charged that manufacturers who were willing to sell to them on other terms were coerced into i-efusing to sell to them, through the fear of losing the trade of the associa- tion, and the truth of this charge was admitted. The action of the association was, by a divided court, held not to be illegal or in restraint of trade. Part of the plan was the prevention of secret rebates, a purpose which is undoubtedly lawful, for both at common law and under the anti-trust acts it is perfectly competent for a number of parties to agree that they will not buy of a seller unless he will sell to them as cheapl}^ as to anyone else, such agreement aiming at equality of treatment, and having nothing to do with restraint of competition. Another part of the plan, however, Avas a combination to prevent any dealer from sacri- ficing any part of his regular rebate or eonmiission as a means of underselling his competitors. The combination, while look- ing primarily to the maintenance of commissions, sought to accomplish this object by the maintenance of prices as a neces- sary means thereto ; and the prevailing opinion concedes that "it does away with competition among dealers as to prices," but a strong plea is made in favor of the right of smaller dealers to protect themselves by arrangements like that before the court against the underselling by stronger competitors, and the anti-trust act is ignored.""^ The issue of rebate certificates is forbidden by statute in 30 The plan of the association tirely legal, and that it was within speaks of the purchasers as selling tlioir rights to accomplish this result agents, but in reality they seem to by refusing to deal with or handle be purchasers and not agents, since the goods of any manufacturer who the goods are billed to them at the Mould not comply with their de- selling price, upon which they re- mands. If the object of the coin- ceive a rebate of 10 per cent. bination ceased here, it would not 40 The dissenting opinion of Cul- be subject to criticism. But the len, J., says: "I agree * » * scheme adopted goes further. It that the combination between the requires not only the manufacturer jobbers to force the manufacturers to sell at the same price to each job- to sell to each of their number at ber, but to compel each jobber to exactly the same price and upon the sell to the consumer at the same same terms, and to sell to no one ]>rice, by refusing to sell goods to else on any better terms, was en- any one who would not comply with 340 COMBINATIONS OF CAPITAL. ^ ;U7 Louisiana.^* ^Massachusetts since 1901 provides-*^ that a per- son shall not make it a condition of the sale of jioods that the purchaser shall not sell or deal in the goods of any other per- son, this provision, however, not to prohibit the appointment of agents or sole agents for the sale of, nor the making of contracts for the exclusive sale of goods. ^ 347. Agreements to fix prices, limit supplies, or divide busi- ness.— 4. Agreements In'tween several distinct competing con- cerns looking toward the removal of competition, or of its injurious effects, by fixing prices, limiting supplies, or by distri- bution of business. Such agreements have come before the courts in a few cases on i)roeeedings for conspiracy,^ ^ or in Quo Warranto,^^ or usually in actions arising out of the original agreement or out of contracts entered into in furtherance of it. As early as 1847 and 1848, the Supreme Court of New York held certain agreements between a number of proprietors of transportation lines on the state canals for the regulation of rates to be illegal, and refused to enforce agreements made in connection therewith.*^ Agreements in connection with the formation of combinations for the control of the coal .supply in certain markets have been held to be illegal in Pennsylvania and Ncav York,-**^ a combination for the control of the sup])ly and sale of salt in Ohio.-*' In ^las-sachusetts a contract for the division of the business in fish skins (used for the manufacture of glue) was sustained on the ground that fish glue is not a necessary of life,'^"^ but in New York agree- ments lookin^^ toward the control of the supply of bluestone and of envelopes have been declared unenforceable, since these jirticlcs. lli»Mi;:li not of i)rim(' necessity, were useful, the court |e;i\iiiLr it niKJetcniiinef] wlietlier articles of hixui-y could fall undir tile common l.iw iMile against restraint ol' trade.*"* thcKU rc<|uircmcnlH. Jt is in lliis '•' llookci' v. Vjiiulcwator, 4 Den. respect that the Jijjrnomciit is vie- :;i!>; Staiitdii v. Allen, .T Den. 4.34. imiH iin CununingH v. Union BluoHtuno § 348 COVENANTS ON SALE OF BUSINESS. 34;^ §348. Covenants by vendor of business.— 5. Covenants made by a vendor of a business not to enj^a^'e in tin- same business. As these covenants may be necessary- U) protect the purchaser against what wouUl he unfair competi- tion, the common law relaxes the general rule against restraint of trade, and makes a distinction between total or general and partial restraint. A partial restraint, limited by place, time, or circumstance, and based upon a valuable^ consideration, will be enforced by the courts.^^ In England the idea of reason- able restraint has been given a liberal interpretation in the ease of Nordenfeldt v. IMaxim-Nordenfeldt Co./"'' where, upon a covenant made by a patentee and manufacturer of guns and ammunition of war in transferring his patent to a company, whereby he bound himself not to engage in that Inisiness for a term of twenty-five years, it was held that owing to the nature of the business, and the limited number of customers to whom sales might be made (confined mainly to govern- ments), the restraint imposed w^as not larger than was neces- sary for the protection of the covenantee, and not injui'ious to the public interest. The same, and even a more liberal view, was taken in New York, in Diamond Match Company V. Roeber,^2 where the court sustained a covenant of a nuitch manufacturer upon selling his business not to engage in the same business at any time within 99 years anywhere within the United States, with the exception of the states of Xevada and Montana. The court intinuited that the doctrine of the common law had been weakened and modified, but chose to place its decision upon the ground that the restraint was par- tial, refusing to regard the exception of two remote states as merely colorable. This position cannot be accepted as satis- factory, and the case must be taken as an abandonment or at least a strong modification of the common law doctrine. The latter is strongly upheld in Illinois, Avhere a covenant l)y a vendor not to engage in the same business for a term of twenty-five years was held unenforceable even as to the state of Illinois — a position in its way perhaps as extreme as that of the New York court.^ Co., 164 N. Y. 401, 58 N. E. 525; r.i 1894 App. Ca.s. 535. Cohen v. Berlin & Jones Envelope r.2i06 N. Y. 47.1. Co., 166 N. Y. 292, 59 N. E. 906. 1 Union Strawboard Co. v. Bon- soMitchel v. Eeynold's, 1 P. Will, field, lii3 111. 420, 61 N. E. 1038. ISl, 1711. 344 COMBINATIONS OF CAPITAL. § 349 # It should be noted that in the Roeber ease the purchaser was already engaged in the match business; the very object of the whole transaction was therefore removal of competition. But this in New York is no objection. "We suppose a party may legally purchase the trade or business of another for the very purpose of preventing competition, and the validity of the contract, if supported by a consideration, will depend upon its reasonableness as between the parties. "^ A man may even be paid to go out of business, though he has no stock or good will to deliver.^ New York apparently regards the common law as prohibiting only combinations between distinct concerns for enhancing of prices, limiting of pro- duction, or pooling of profits.-* ^ 349. Consolidation of different concerns. — G. The consoli- dation of several concerns into one differs from the buying out of competitors in the fact that the former does not involve a covenant not to engage in the same business. Tn both cases competition is met, not by agreements regarding the man- agement of distinct concerns, but by removing the source of rivalry and competition. Disregarding in the case of buy- ing out a competitor the possible covenant not to engage in the same business, the two cases constitute transactions which in the absence of complicating circumstances are undoubtedly viilid at common law: nani('l>'. tlie sale of a business, or the formation of a partnership. A c<)ni|)li('a1i()n arises where either of the competing parties is a corporation. .\ corpoi-alion would not ordinarily be prevented from liii\ing or (unh'ss it be a |)ub]ie service cor- poration with ;i I Vancliist' I selling a ])lant from or to a com- petitor, iiut if a imigei- is attempted in otiiei- ways certain diflficuil ies will arise. Tims if one eoi-por;!] ion sleniiil desire to ;ic(|nire the eontrolling interest in the stock ol' ;iiiollier competing forpoi-at ion. the eor|)or;ite power to own sneh stock must be impiiced into. ,\ synopsis of the statntory provi- sions in ipiestion is I'onnd in llie Ivejiort oi' the Industrial ("om- -' I )i:irii(iiii| Match Co. v. RoctiiT, -'Wood v, VVliilchcnil I'.i'os. ( 'o., KiC, N. V. JT.".; :i1h.. I.cslio v. Lnril- Ki". N. V. MS, r)9 N. E. 3.17. lani, no \. Y. r.l9, 1 L. M. A. ir,V,. i L(mik1i v. ()iitrTl)ri(l>,'o, \\:\ N. V. Si) alsii llarriHod v. fihicdst! SviKur DTI, ~^> I-. U. A. fi7l. Urfininn <'..., 1 Ml 1'<'1 10(5 X. Y. 47.'!. Contra in .Miclii^.-iii : I'cd. L'O."). Hiclianl.Moii v. liiilii, 77 Midi. ^S'.Vl. '^ Oakdiilr Mininlacliiriii)^' Co. v. •f> r'umminyH v. Union lihu'Htonc (iiirst, is \{\\. I. 484, L'.S 1^. M. A. Co., 164 N. Y. 401; ('(.hm v. H.-ilin (i.'Jit. & Jones Envolojn' Co., 100 N. \. I'^Scc c. jr. Mcroditli v. New li92. .liTHPy Zinc & Iron f^o., 55 N. J, Eq. 211. tj ;}54 MONOPOLV. :J49 Assuming that the point of practical monopoly is roaeheil when a business "by reason of ownership or control of lands growing timber or other vegetable products, or containing coal, oil, iron, or other minerals or metals used in the manu- facture of such articles, or by reason of ownership or control of the instrumentalities of manufacture, production or salt- shall have the power to control or affect, in whole or in part, the prices of said articles throughout the United States, so as to prevent, forestall, stifle, destroy, or hinder competition therein," can such a business reasonably be declared to be illegal? There may be only one mine containing a certain mineral (so e. g. turquoise) in the United States: can it be illegal to own, or to attempt to acquire, that mine? Certainly not; and how if there are two or three mines? The anti- trust bill introduced (but not passed) in the 57th Congress, from which the above M^ords are quoted, adds that the business, to be illegal, must be "so conducted in whole or in part so as to prevent, forestall, stifle, destroy or hinder such compe- tition," and this seems to contemplate some illegal practice besides the taking advantage of the control of more or less exclusive natural or economic resources; but if so, it would have seemed unnecessary to make an express exception, as the bill does, in favor of a business founded on a secret process. In fact, after a business has obtained a monopoly, it seems superfluous to require that it shall not be so conducted as to hinder competition, for competition will be hindered wntli- cut any particular machinations on its part. The prohibition of the law should be directed against combinations preceding the monopoly and having for their object its formation. And if the term monopoly covers the control of resources enabling a concern to exercise a sensible effect upon the supply or the price of an article throughout the United States, it is cleai- that hardly any consolidation of great corporations can bo law- ful, and that there is a repugnancy between the laws allowing such consolidation, and the prohibition of monopolies. § 354. Interpretation of anti-trust acts.— Having examined the doctrines of the common law regarding restraint of trade and monopoly, we should ask whether they have been sub- stantially altered or Avhether their uncertainties have l)een removed by the statutory legislation oi" recent years. If it could be urged successfullv that the common law con- 350 C0.MBi^AT10x\S OF CAPITAL. ^ 354 demns only those combinations which rohite to articles of prime necessity, the anti-trust acts would constitute an ex- tension of the doctrine in that respect, for in many states they undoubtedly cover all commodities. Thus they have been enforced iy Texas with regard to combinations limiting the sale of intoxicating: liquor.^" But in most states the courts would not recog:nise in this respect any difference betAveen statute and common law, since they regard the common law doctrine as extending to convenient and useful articles, barring- at most luxuries.-*' It has been held by the Supreme Court of the United States that the federal anti-trust act forbids any agreement in re- straint of trade, no matter whether the purpose be to prevent merely ruinous competition or to oppress the public.-^ The dissenting judges were of the opinion that the federal act should be interpreted as applying only to agreements in un- reasonable restraint of trade. But it would be very difficult In prove that the common law made any such distinction as lo arrangements regarding prices; the only forms of restraint of trade which were recognised as reasonable were the vendor's covenant not to engage in the same business, limited as to time and place,22 and the bye-laws of regulated companies. So it was held in New York in a case decided on common law principles that the monoi>olistic agreement remained illegal though it be conceded that one of its i)urposes was to enable the parties to obtain i-casonable i)rices, since it gave them till' [Ktwcf to (ix ;ifbitr;ii'y .-ind unreasonable pi-ices. "Tlu' scope of till' contract, and not the possible self-restraint ol" tin- pnrlics to i1. is tin- test of ils validity."-'' Tii this respect, then, the anti-trust law makes no innovation. The anti-trust acts admit oiv tlicir face of an interpretation making every pai't nersiiip and coi'|)orat ion illegal, sin 'vei'v ])artiiersiii[) ami eorpoi-ation necessarily involves an agi-ee- iiieiit liet Willi persons n^garding suj)plies ami prices. But I lie obvious answer to such a suggestion is lliat every statute '"ToxjiH & Pacilic Coal Co. v. :m a^rrconiciit iiinlcr tlio aiiti-lruHt LawHoii, Hit TfX. .'I'.M. laws is roiircdiMi liy tlio .Suprnmo 2" ('iimminijH v. Union HlncHlonr (unit (Hopkins \. ITnitod Sfatoa, Co., 164 N. V. 101. r,H N. K. HLT). 171 V. S. .^.7s). 2' IhiitfMl St;ifcH V. 'rr.'ins-MisHonri '■' Cninininf^s v. Ciijnii Hlnostone KreiKht AnHociafion. ir.(5 V. S. L'!)(t. Co., 104 N. Y. 401. 22 The continning validity of mich §354 CONSTRUCTION OF ACTS. :}.-,l must receive a reasonable construction and lliat il was mani- festly not intended to touch business associations of the usual kind. The United States Supreme Court approves the saiiif general principle. "The Act of Congress must have a ri'ason- able construction, or else there would be scarcely an agree- ment or contract among business men that could not be said to have, directly or remotely, some bearing upon interstate commerce, and possibly restrain it."-* A distinction bctwecni partnerships and combinations has been recognised repeatedly. So in Stanton v. Allen r'^ "No one can be deceived by any supposed analogy between the principle of uniformity of prices among the members of an ordinary business firm, and the same thing in a confederation formed for no other purpose or use than to bring it about." But it will not save the illegal combination that it assumes the form of articles of co-partner- ship, if the combining concerns retain in reality their former distinctness and individuality. ^^^ The anti-trust acts being primarily directed against com- binations of concerns being and remaining otherwise distinct and separate, they cannot be held to have repealed by implica- tion the statutes allowing the consolidation of corporations engaged in the same general line of business, which will in many cases be competing corporations. But the spirit of the law is violated where the consolidation is formed for the purpose of creating a monopoly, since monopolising a branch of industry is an illegal object at common law, and no cor- poration may be formed for an illegal object. Therefore where a business according to its nature tends toward a monopoly, a consolidation of competing concerns may be ab- solutely forbidden, so in the ease of competing railroads,^" and such consolidation may be held illegal at common law. The great difficultv in the case of consolidation of industrial corporations is to determine when it becomes monopolistic, and unless we confine the term monopoly to a combination which suppresses or absorbs all rivals and perhaps even shuts out opportunities for forming new rival concerns, the differ- ence between legality and illegality will be one of degree, i. e. 24 Hopkins v. United States, 171 637; Craft v. McConoughv, 70 111. U. S. 578. 34(5. 25 5 Donio (N. Y.) 434. st Minnesota legislation, sec Pear- 2c Fail-bank v. Learv, 40 Wis. sail v. Great Northern R. Co.. Ifil U. S. 646. 352 COMBINATIONS OF CAPITAL. § 35;") every consolidation of exceptional magnitude, especially one reaching out toward different parts of the country, will fall under the ban of the anti-trust laws. In this respect, too, the anti-trust legislation adheres to the common law, and, it is true, does nothing to make it more definite. § 355. Constitutionality of anti-trust legislation.-^— The .status of restraint of trade at common law has an important bearing upon the question of the constitutionality of the anti- trust statutes. For if contracts in restraint of trade are gen- erally regarded as void and unenforceable, it nuiy be argued that the right to make them cannot be included in the liberty guaranteed by the bills of rights. As a matter of fact, the validity of these statutes has generally been accepted without (luestion.-** It is, however, necessary to consider a few points, which may seem to present constitutional questions. It can hardly be denied that the anti-trust acts create offenses out* of acts, which in themselves and directly are not necessarily harmful and may even be beneficial, merely because they involve a tendency to develop ultimately oppres- sion of the public, if they are allowed to go unchecked. This aspect has caused the constitutionality of the federal act to be drawn in question on the ground that it deprives of liberty and ])roi)erty without due process of lav/. It was urged in I'liited States v. Joint-Traffic Association,^" that it was not within the power of Congress to prohibit all contracts in re- straint of trade, since not all such contracts are prejudicial to llie security or welfare of society. The court, however, took the vit'W that restraint (»f trade is iiecessai-ilx- iiijiii-ious to tlif |»ul»lic in maintaining i)rices, and tliat Die |)ow('i' to regu- late commerce must include the power to ]irohibit contracts which shut out the operation of the gent^ral law of competition. it was therefore jield irrelevant that the combination merely intended to estabiisii reasouiihle rati's and to prevent i-iiinons aiul reckless competition. Il li;is ;ilso been lield lli;il it is no answei- to tlie elijirge oi" ille'j-;!! (•( »iil hi n;i t ion to show 1h;it its irnnietji.'ite object oi* efT'eet is to i-ediicc jiriees to the consunieiv'" In I'nit'-d States v. Trans-M issonn i''reiL'lil Associ;it lon,'"- ^•'RcT, iil.Mo, 8 7.TJ. •■"•171 V. S. Mr,. -» Ht!itc« i-x n-l. Monnott v. HiK-k- "i I>poplc> v. Milk Kxcliiiiij^o, 14.1 .v.. I'ijK' l.Uic (•<... 7 S. W. 1(1.^.7, sf* Connolly V. niiiciii Sewer I'ipn § 356 TRUSTS AND STRIKES. 355 ing for their object the increase of wages. A immb.T of states (Louisiana, Michigan, .Missouri, Montana, Nel)raska, South Dakota, Texas, Wisconsin) make express exceptions in favor of these ; Illinois provides that where tlie cost of articles is mainly made up of wages it shall not be unlawful to enter into joint arrangements, the principal object or effect of which is to maintain or increase wages ;-^<' in some states strikes have been excepted from the operation of the laws against con- spiracy ;3''' in other states they have long been legalised by custom. Is such a discrimination between hibor and capital justifiable ? The" common law made no distinction in its con- demnation of combinations injurious to trade and commerce, and combinations of workmen were in some early American cases, held to be within the law of conspiracy.-"''^ Under the federal anti-trust act, combinations of workmen have been declared illegal, where their object was to obstruct interstate traffic.^^ The Supreme Court of Pennsylvania has declined to pass upon the constitutional aspect of such discrimination;*" in Nebraska it has been sustained as a legitimate classifica- tion.*^ A special legislative treatment of strikes must justify itself by special conditions which apply only to manual labor as a commodit}^ : either that wage earners need special pro- tection, or that a high price paid for labor cannot be con- sidered as an injury to the public in the community. It is believed that most states would sustain the different treatment of labor and capital in this respect, but it is not easy to recon- cile such discrimination with the doctrine asserted by some courts that with regard to his contract of employment, the laborer cannot be constitutionally controlled on the ground that he is economically weak and dependent. ■in This provision, introrlnced into ■!•• Unitoil Statos v. WorkinpmPii 's the act of 1891 by an amendment Amalgamated ("onncil, 54 Fed. i)!t4 ; of 1897, has been declared imcon- United States v. Cassidy, 67 Fed. stitntional. People v. Butler Street 698. Foundry and Iron Co., 201 Til. 236, « Cote v. Murphy, ir.it Pa. St. 66 N. E. 349. 420. 37 N. Y. Penal Code § 170. " Cleland v. Anderson (Neb.), 92 38 People V. Fisher, 14 Wend. 9; N. W. 306. Com. V. Tluiit. 4 Mete. 111. CHAPTER XVI. CORPORATIONS.! § 357. Association and incorporation.— The American law recognises tlie right ol" associalion roi- economic purposes in principle, and only the abuse of the right for oppression and restraint of trade is dealt with by the police power. The right of association does not, however, include the right of incorpo- ration, which requires some positive governmental authorisa- tion. A corporation is regularly an association,^ but it is an association invested with legal personality. The attribute of legal personality means that the corporation may hold prop- erty in its corporate name, as if the aggregate body were a unit distinct from its members. Corporate rights may then be disposed of, corporate obligations may be assumed, and corporate controversies may be litigated without the actual concurrence of all the members, and a change in the persons of the members does not affect the title to corporate property. Moreover, the liability for corporate obligations is according to tlie theory of our law limited to corporate property. The right to associate does not carry with it the right to hold |)roj>rrty in a corporate cap'acity. Without this right, how- t'VtM'. .Ill association may be seriously handicapp^ed. If the mcmljfi-s of the association are numerous, it is inconvenient and ])raeticall3^ impossible for them to hold property as joint tenants or tenants in common; especially in the case of i-cal »'statt', llii- changes ol" title consequent upon death oi- otlier changes in nii'mbcrshii) would lead to intolerable complications. 'I'o some extent tliese iiicoiiveiiii'nccs may be obviated hy {)la('ing the i)roi)erl\' in tlic hands (tl a few members or otliers as trustees I'of all and hy other contractual stijiulations l)e- tween the mi'mbefs. and devi(M's of this nature have been largely resorteil to in tije formation of joint-stock companies; yet in some res|)e('ls the status of such unincorporated com- I)anies anri so(Meties is uncertain and unsatisfactory, and the • Sep, nlHo, 8 713-7'JO. f^nfliolif Pisliop of Chicago is a 2 Tho corpnr.'if ion hoIi- im imt. iin- < (irpor.-ition sole - ImiI it is of Utile known in the Uniloli<"y. " Iforn Silver control of the legislature, to be Mining Cn. v. 'Sew York, 113 U. S. exercise'l in its jjood jjleaHurc, it 30.'). § ;JGO KESTKICTIOXS ON CORPOIJATE CAI^ACITY. 359 authority even for holding tliat no corporation may be or- ganised for a number of distinct objects, but must restrict its.-M' to some branch of business which can reasonably be rc^^ardrd as a unit.' While individual action can expand in all direc- tions, corporate action is intrinsically limited." The restrictions imposed by statute are manifold, and cover the following principal matters: the objects for which cor- porations may be organised; conditions as to minimum number of organisers, and sometimes as to their residence ; conditions as to denomination of shares and their transferability; manin'r of organisation, name, subscription and payment of capital, and preliminary contracts; regarding officers and members' rights, including general meetings, right to vote, qualification and number of directors, their election, term of office, and removal, the power to make and alter bye-laws ; the manage- ment of corporate business, including payment of dividends, acquisition and disposition of real estate, and the contracting of loans; liabilit}^ and power to assess; increase and reduction of capital ; change of name and purposes ; duration, extension, liquidation, consolidation; registration of officers and share- holders ; and requirement of accounts and reports. Corporations may be subjected to regulations which could be imposed upon individuals, if at all, only for one of the recognised objects of the police power. The majority, perhaps all, of the statutory provisions regarding corporations might, it is true, also be justified on the ground of the prevention of fraud and oppression ; for in the relation of the corporation to outsiders a special danger of fraud arises in connection with the principle of limited liability, and the danger of op- pression may be considered to be inseparable from the power of associated capital; and the regulation of the internal cor- 7 People V. Chicago Gas Trust Co., common carrier shall, directly or 130 111. 268; State v. Taylor, 55 indirectly, prosecute or engaj,'e in Oh. St. 61, 44 N. E. 513; "Williams mining or manufacturing articles V. Citizens' Enterprise Co., 25 Ind. for transportation over its \Yorks, Ap. 351, 57 N. E. 581. nor sliall such company, directly or 8 In some cases there is e.xpress indirectly, engage in any other bu.^i- provision against the carrying on ness than that of common carriers, of several distinct undertakings by or hold or acquire lands, freehold, the same corporation. The Consti- or leasehold, directly or indirectly, tution of Pennsylvania (Art. 17, except such as shall be necessary § 5) provides that no incorporated for carrying on its business, company doing the business of a 360 COKPOKATIO^'S. § 361 porate life may be placed upon the ground that all corporate management is government by a majority, and that the state has the right and duty to protect the minority shareholders from possible fraud and oppression on the part of a corporate majority. But the restrictions placed on corporate action are not generally referred to these grounds, which would equally apply to all associations; but are simply regarded as legislative qualifications of corporate capacity. Corporations as such are not persons having a natural and inalienable right to existence and happiness; but they exist by legislative sufferance subject to legislative conditions. ^ 361. The charter as a contract and reservation of legisla- tive power.'-'— Upon the theory that incorporation is a special privilege which may be qualified ad libitum, a peculiar modifi- cation has been engrafted by the Supreme Court of the United States in the Dartmouth College Case,i'* decided in 1819. Ac- cording to the doctrine of this case every charter of a private corporation constitutes a contract between the state and the corporators which the federal constitution protects from im- pairment by subsequent legislation.'' The franchise once be- stowed and accepted together Avith the conditions annexed is placed beyond legislative control. The doctrine is confined In private corporations, but is applicable to these whether created by special charter or by general statute.'- The legis- lative i)ower in;iy therefore under llie un(iualified operation of the doctrine be designated as one of initial regulation: it would cease or at least become greatly diminished as to each corporation after the same has once been constituted, during thr wholi' dl' the lci:;il life nf th;it coi'pdi-at ion, and can be I'lilly exercised only as to coi-por.it ions to be created in tlie future. Thus if the sjjccial charter, oi-'thc gcnerni l;i\v :it tlie time '•' Srf, :ilHn, J) .'»()'.l-r)7Ll, rtWl, rjit'.). than ill the nianiuT urgoii by oiio '" TniHtwH of DiirliiKiiitli CoIIokc of the relator's coiinsol wlio consid- \. Woodwanl, 4 Wlioalon GIH. Soc, rird tlic <,'r;uit of inc(.r()(. ration to hIho, Hcj^MMifH, I'fc, V. WillianiH, '.• Ix" a (■ompact lit-tweon tlie Crown (!. & .F. (M; Brown v. Ilnni- ami a certain number of the Bub- „icl, (i I'a. SI, Sf). .i<'<'tH, the latter of whom umlertako "The contract theory had lucn in eonsideration nf tlic privili'jreH (•roponnded in Knjjiand in Hex v, wlii(h nn' br'slowcd to exert thein- I'.'iHmore, :? T. I{. !'.•'.', JKi, when seivcH for the frond jrovernment of liuller, .F., Haid: "F do not kntiw the jdaic. " how to reuHon on thin point better I'-i F^odRC v. Woolscy, 18 How. .3.31. § 3G2 CllAKTEK AS COXTKACT. ;jCl of the formation of the corporation, vested th<' control of the • affairs of the corporation in a board of nine trustees or di- rectors, this form of management could not Ix' subscciuently changed without the consent of the corporation. Tliis peculiar doctrine, although it has been acquiesce! in as a principle of constitutional law, at once aroused considerable alarm. An escape from its operation was, however, suggested in the opin- ion of one of the justices concurring in the decision : namely, the insertion in the original grant of a reservation of power to change or modify its terms or to repeal the grant alto- gether.^ ^^ Many states have availed themselves of this sugges- tion, and have inserted in their general incorporation laws clauses to the effect that they may be subsequently changed as to corporations formed under the original act. This reserva- tion of power is also found in a number of state constitutions." It appears then that, while all states exercise a power over corporations to be created in the future which is extremely wide and not subject to all ordinary constitutional limitations in favor of individuals, as to corporations in existence we must distinguish whether the power to alter and repeal has been reserved or not. The difference would at first blush seem to be radical; it might be inferred from the doctrine of the Dart- mouth College Case that existing corporations without the reserved power are practically placed beyond all subsequent legislative control ; and from the reservation of power, that corporations subject to it have no rights secured as against the legislature. The course of judicial decisions has, however, shown that this radical difference does not exist, and has indeed done much to temper if not to obliterate the effect of the doctrine as originally propounded. § 362. Modifications of the doctrine of the Dartmouth Col- lege Case. — It has been held that the doctrine that a charter is a contract does not prevent the operation of the police power in so far as it is exercised to protect peace, safety, health and 1" For earlier acts of incorpora- ^^ Florida and Minnesota appear tion reserving legislative power, to have no reservation of power, ste Mass. Act, March 3, 1809, § 7 Kentucky and Missouri merely re- (inanufg. corporations), and N. Y. serve the e.xercise of the police Laws, 1813, ch. 59, §§ 8 and 9 power .nid provide that corporate (College of Physicians and Sur- powers shall be exercised subject geons), with a saving for vested to law. interests. 3G2 CORPORATIONS. § 362 morals. The constitutions of several states (California, Mis- sissippi. Missouri, Louisiana, ^Montana. Pennsylvania), express, this principle in another form by providing that the police po-wer shall never be so abridged as to permit corporations to conduct their business so as to infringe the rights of individ- uals or the general well-being of the state. A railroad company cannot therefore set up its charter to escape the operation of a law compelling it to adopt certain safeguards calculated to prevent accidents,^'' and the charter right of an electric com- pany to place its wires under the streets of a city is subject to reasonable municipal regulations as to the method of exer- cising that right ;^'^ the charter of a lottery or a brewing com- pany does not prevent subsecjuent legislation to suppress lot- teries or the manufacture of intoxicating liquors.^" For as the governnicnt cannot i)art with its power to guard against disorder, disease, or the corruption of morals, a contract pur- porting to do this is void a 6 iiiilio. and it is impossible to speak of the impairment of the obligation of a contract where the contract is illegal. Corporations are therefore fully subject to the ()p(M"ation of ilic police power in the narrower sense of the term, and must submit to such i-egulations and restraints as are called for by the safety, health, or morals of the com- muiiit\, notwithstanding an\- cluirtcr provisions. It has even been inl ini.ittd liy the I'nited States Supreme Court that there is implied in the charter of every coiporatioii the condition that the corporation shall be subject to such reasonable regula- tions in respect to the general conduct of its att'airs as the legislature may from tiiiK^ to tim(^ ]u-escribe, which do not ma- terially intei-fcn- with the substantial enjoyment of tlu' priv- ileges the state has granted, and serve ou\y to secure the ends for which the corporation was ci-eated; a life iiisui'ance com- jian\' woiilij tlius mil lie pi'olected l)\- its charter IVom a sul)- seipirnt nipiireiiicnt of sworn sl;itenients jind submission to e\;iiiiin;it ions.' '^ In llie c;ise Ix'I'orr llie coui't. howe\'ei-. the loTtioriM' V. IImiImm.I, etc.. U. «'<... I'hifto, ot.-., Co. v. Dow.-ll. 17 Col. 27 Vf. 140; lnili;iri:i|.()liH, olc, K. 'MC). ('«(. V. Korchfival, H". IikI. 84. " fltonn v. MisBisflippi, HM IT. S. >« MiHHiiiiri ex rcl. liJiclcdo Ojih- S14; Ro.slon Bcrr Cn. v. M.'issiiclui linlil Cn. V. .Miirpliy, 17jlc Iu8. C(i. V. ohiu, ir.;{ I', s. 44«;. § 362 iMOUlFlCATlOiNS OF COiNTRACT TIIEOKV. ,ny,i charter of the company contained a clause tliat the act should not exempt the company from tlie operation of t^eneral hiws thereafter to be enacted on the subject of life insurance. And so in the later case of Pearstill v. Great Northern R. Co.,'" where the same doctrine is expressed, a power of ;niiendment had been reserved in the charter of the railroad company, liul in Louisville & Nashville R. Co. v. Kentucky,-" the state was held to have power to forbid the consolidation of competing: corporations, though the right to consolidate should be held to be given by the charter, and though the charter contained no reservation of power. The Court of Api)eals of Kentucky holds that where the property of a corporation is affected by a pub- lic use, a power of alteration is implied, "unless in unmistak- ably clear language the state has indicated a deliberate purpose not to interfere in all time to come."-^ It is not clear how far such an implied power of subsequent regulation might go with- out violating the charter contract; not, it seems, to the extent to which its exercise had been attempted in the Dartmouth Col- lege Case, of which it was said in the Pearsall case: "It was not the case of an amendment in an unimportant particular.— the taking away of a non-essential feature of the charter, but a radical and destructive change of the governing body,— a transfer of its power to the executive of the state, and virtually a reincorporation upon a wholly different basis. "-- There is, moreover, a tendency to place upon the scope of the contractual effect of the charter, niul consequentl\- up(ui its constitutional protection, a narrow construction; the eliai-- ter privileges will, if possible, be so construed as not to be exclusive or irrevocable, ^-^ and a contract will be recognised only where there is a consideration: so an exclusive right to maintain a bridge does not prevent the subsequent authorisa 19 161 U. S. 646. (transfer of fineinnati roHeffC to ••i»> 161 U. S. 677. Cincinnati University), and Graded 21 Winchester, etc., Turnpike School District v. Trustees 95 Ky. Road Co. V. Croxton, 98 Ky. 739, 436 (changing seminary to conimnn 33 L. R. A. 177. school, Init there tlH> diartcr granted 22 That a reservation of power a perpetual appropriation of the does not justify a substantial trust to seminaries). change in an educational trust, held -3 Under many constitutions no in Webster v. Cambridge Female irrevocable grant of sjiecial privi- Seminary, 78 Md. 193 (changing fe- leges or immunities may be made, male into mixed school); Ohio v. so Illinois II, 14. Neff, 52 Oh. St. 375, 40 N. E. 720 364 COEPOKATIONS. § 362 tion of a railroad viaduct ;2^ a charter right to charge reason- able rates or to establish rates by bye-laws does not prevent subse(iuent legislation regulating rates ;-^ and an exemption from taxation where the corporation renders no equivalent in the nature of a consideration, will be treated as a revocable license. 2<5 While thus the charter contract theory is weakened, first, l)y the refusal, if possible, to recognise a contract or vested right, second, by the subjection of the contract to the opera- tion of the inalienable police power in the interest of safety, order and morals, and, third, by the implied reservation of a continuing power of non-destructive regulation, the Supreme Court has on the other hand in a number of cases expressed its opinion strongly to the effect that even the reserved power to alter and repeal charters cannot be so exercised as to de- stroy substantial property rights which are independent of special privilege or corporate capacity, or to divert them from their original purpose, since that would amount to depriving the members of the corporation or its beneficiaries of property without due process of law. Thus it was said in Greenwood v. Union Freight R. C. :-" "Personal and real property ac- (piired by the corporation during its lawful existence, rights of contract, or choses in action so acquired, and which do not in their nature depend upon the general powers conferred by the charter, are not destroyed by such a repeal, and the coui'ts iiiiiy. 11' the l('iiisl;i1ui'(' docs not ])rovide some special remedy, enforce such rights ])y llic nic-ius williin llicir power." In that case it was held that the railroad ('omi)any retained its rolling stock, horses, stables, th(^ delits 'due to it, and the funds oil hand, but lost the riglil to cuinhcr tlie str(H^ts with tracks which il liad no longi'i- the right to use Similar (^x- j)ressions are to be found in other cases ;2^ and il should ln' -1 I'ru|irict(>is of I'.ri Dartmouth College Case lies in the affirmation of the principle that the fact of incorporation does not place property or contracts of corpora- tions at the mercy of the government ;■**■' but it should also be 43 Covington &c. Turnpike Co. v. *•> Louisville & N. R. Co. v. Ken- Sandford, 164 U. S. 578. tueky, 161 U. S. 677, 695. "Lake Shore & M, S. R. Co. v. ■•"See especially pp. 635-63S of Smith, 173 IT. S. 684, 698. opinion. 368 COEPOEATIOAS. § 364 noted that no such power was contended for on behalf of New Hampshire; see the argument on page 602: "It is not necessary to contend that it [the legislature] had the right of wholly diverting the fund from the original objects of its pious and benevolent founders." The mischief of the de- cision was the color it gave to the contention (through the application of the principle to legislation touching merely organisation, and by treating organisation as a vested right) that the fact of incorporation withdraws the corporation from the exercise of legislative power which, if exercised over in- dividuals, would generally be conceded to be constitutional, the contention, in other words, that the charter of incorpora- tion is a charter of exemption from powers of government recognised as legitimate in the case of individuals. It is this last contention which has been gradually overcome by the progress of adjudication.^' § 364. Compulsory incorporation.^^— In view of the special legislative power over corporations, it may be asked whether the law may require that some business shall not be conducted otherwise than by corporations. The (luestion was answered in the affirmative in Pennsylvania, where this requirement was created with regard to the insurance business.^'* The court ba.ses its decision upon the ground that a fair measure of '" It may well be admitted that general legislation, since it was be- forporate charters should not be yond federal cognisance. As to dis- siilf.jected to special acts of inter- tinction between legislative and ju- lerence by the legislature; but the dicial power in dealing with corpo- logical prere(|ui8ite would be that rate charters compare Kailroad Com- charters should not be granted by missioners v. Portland, &c., E. Co., Hjfccial acts. Tliis is now recogiiiscMl (53 Me. 1269, and State v. Noyes, 47 as a general j)rin(iple of constitu- Me. l.Si), with Eoxbury v. Boston, tional poli<'y. The prohibition of etc., R. Co., 6 C!usli. 424, and Corn- special legislation removes the dan- monwealtli v. I-^astern E. Co., 103 gcr of meddlesome interference witli Mass. ':1')4. Also as tn legislative charters to a great extent; and the jiower In declare forfeiture without recognition of the i)ower of altera- .jinliiial procecrcme Hrawley, 33 Minn. 377. Court in the Darfmoutli ('..llr^c <*< See, also, § 1.1(1-444. Ca.se had no occasion to coiisidc'- '•' < 'nnimonwcallh v. Vrooman, HJl thi« distinction between special and I'.i. 306, 25 L. K. A. 250. § 364 COMPULSORV INCORPORATION-. 3^9 fidelity can be compelled only when tlic business is in the hands of corporations, since private individuals cannot Ix- compelled to disclose their business, financial condition, etc. But if incorporation allows a larger than the ordinarily ad- missible measure of state control, it does so on tin- thi-urv of a special license to which conditions are annexfd. To say "You must ask for special privileges; then by reason of these special privileges you must submit to special regula- tions," is equivalent to saying: "You must submit to six-eial regulations. ' ' The real question must therefore be : does the business admit of special regulation ? If it does, the regula- tions may be imposed on individuals, associations and corpora- tions alike. The state may, however, also compel incorporation, if that is the most convenient form of control, provided that facilities for incorporation are extended to all, including single individuals. Compulsory incorporation is a conse- quence of the special control, not vice versa. If, however, the requirement of incorporation has the effect of excluding any one from the business, it can be sustained only, if the nature of the business is such that it may be restricted to select persons, or be made a monopoly. This fact was recog- nised in two cases arising under statutes of North Dakota and South Dakota, restricting the business of banking to cor- porations. The Supreme Court of North Dakota in a brief opinion upheld the law, because private banking might be pro- hibited altogether.^'' The South Dakota court in an elaborate opinion held that the statute could not prohibit any citizen from entering upon a business not injurious to the comniunitx-. though affected by a public interest, and was therefore un- constitutional.^ ^ 50 state ex rel. Goodsill v. Wood- si State v. Scougal, 3 S. D. 55. 15 mansee, 1 N. D. 246, 11 L. E. A, 420. L. R. A. 477. 24 CHAPTER XVII. FREEDOM OF PROPERTY.— PERPETUITIES. ^ 365. Legal policy. — The freedom of property from con- ventional restraints and burdens is of considerable political as well as economic importance. The imposition of restraints upon the alienation of lands or other property is a common device for keeping acquired wealth in the family of the founder, and the perpetuation of wealth in the same families tends to produce an aristocracy. All burdens and restraints on property moreover prevent its free circulation and its being put to the most productive uses, especially where such uses are attended with risk to the owner, and exclude or retard the process by wliieli property gets into the hands of those most competent to manage it. The natural desire of the owner to rctnin over his property a control of the longest possible duration, however much in accordance with class interest, has therefore generally been felt to be contrary to public policy. As a (piestion of the right of ownersbip it is clear that the fullest recognition of the claims of tbe owner would enable him to bind the property in the hands of oIIkts, while the permanent exemption of l)roperty I'lom l)iir(iiMis jiikI restraints can be attained only by restraining his powei- oi' control. TIh' claim of fi-eedom of owiiefshi]) may thus be taken in two opposite senses, and the most inr, to " hitrofhictory Act, Art. r><». >•'' liljickslonc II .S.'iT-O. "Civil (-'ode § 2109. i* Gray, Rule againnt Perpetuities i"Sco, alHo, § .'Sni. 1.14, '2Hr). 11 ILIHr) Rtatutc (1(« DoniB ron.li- "f. Pollock L.-iiid L;nvH, ]>. 111. tionalihuB. '"(Iniy, Sec IfiiMTO. >2 12 Ey onlcr of a fonrt (Lewin Trnsls, 107 III, I'JL', 41 I-. H. A. ■\U>, 17 N. |i. 5:{!l), unless tlic ^ifi is liy its E. 3L'1. , terms subjeet to condition subse- s" Hce, also, S .iniiHO.^. quent or deterniinabic upon eesser ^" I'roperty lield by corporations, nf ilic p.ulirnlur use. §361) MOKT.MAJ .\ LEGISLATION. 375 Under Richard II these statutes, ori<,Miialiy cunlined to Un- church, were extended to lay corporations. •'• lieiii^^ passed primarily for the benefit of the Kinf^-, the Kinj; iiad jxnver to relieve from their operation, and this was done by so-called licenses in mortmain. AVhen corporations came to receive formal and technical charters of incorporation (from the time of Henry VI), a license in mortmain became a regular feature of such a charter, and upon this license rests the right of cor- porations in England, to hold land free from the liL'ht of the lord or King to enter. The power to take or hold personal property was never limited. Trusts for charities not vested in corporations as tr\istees, though likewise perpetual, were not included in the statutes of mortmain, and were favored in equity. It was only in 1736 that gifts of lands (not personal property) to charitable uses Avere subjected to formal restrictions.-^^ § 369. Mortmain legislation in America. •'■^ — In America the power of corporations to hold real property is regulated by statute, the usual provision being that they may hold what is necessary for their corporate purposes. This limitation is inherent in the nature of corporate capacity, and can liai-diy be said to represent a distinct mortmain policy, which, indeed, is entirely unsuited to many classes of business corporations. Railroad corporations are, next to the United States and state governments, the largest landholders in the country. With regard to corporations organised for religious and benevolent purposes, the laws of the different states show a distinct policy to prevent an undue accumulation of property and especially of land. Thus a number of states limit the power to take by will; the constitution of Mississippi forbids devises of land or interests therein for religious or charitable purposes entirely ;2^ Pennsylvania has re-enacted in substance the provisions of the English statute of 1736 extending it to personal property. ^^ New York limits the amount that may be taken under the will of a testator leaving a wife or child or parent, relatively to his estate. ^^^ Moreover, a number of states limit absolutely the total amount which ;i religious society may hold, either by fixing a maximum acreage of land 31 15 Eic. II, cap. 5, 1392. 32 Stat. 9 Geo. II, ch. 26. 33 See, also, § 594-601. 3* Sec. 269. 3s Act April 26, 1855. •ifiLaws 1860, ch. 360 § 1. 37(3 FREEDOM or PKOPEKTY.-PEKPETUITIES. '§369 (so in Illinois), or a maximum value of property, real or personal, or of the income therefrom. In New York the ten- dency has been to increase the amount allowed to be held ($12000 income in 1875; $250000 income or $3000000 principal in 1889; $500000 income and $3000000 principal at present) ;3' and in Pennsylvania the amount allowed to be held may be in- creased according to its purposes by order of a court.^* Gifts to charitable uses are treated by the American courts with the same liberality as they Avere in England, and of course the prohibition of gifts to superstitious uses as under- stood by the statute of Henry YIII has disappeared ; although even now some courts find themselves unable to sustain be- quests for masses on the ground that no beneficiary is ascer- tainable. 3-' In New York it was held that under the recon- struction of the law of trusts effected by the Revised Statutes of 1828, the English law of charitable uses had been entirely done away with, and that charitable gifts in trust could Ix' made only to corporations existing for that purpose;^" but by an act of 1893^^ the legislature reversed this policy and legalised trusts notwithstanding the indefiniteness of bene- ficiaries.^- The history of the law in New York shows that the whole matter of gifts to charities is absolutely within the legislative power, unless controlled by specific constitutional provisions; and the same is true of the corporate capacity to take and hold lands. This legislative jjowcr is iiol in .-my way affected liv claims of i-cligious liberty. 'I'lii- acknowledged power of restraint is, iiowever, exercised witii great moderation, and the j)olicy of the legislature and of courts has on the whole been to encourage gifts foi- cliaritable and l)enevolent jmrposes. •'"General Corporation L;i\v, § lu, 1-. 1\. A. loO; HoofTi-r v. ('I(i)raii, an amoiifled Laws 1892, <-h. 687, 171 111. HiL', 10 I.. IJ. A. 7:!(); in iSiM, ell. 400. iNc'w York nplicid a.s t'lintract, (iil- ■"' LawH IHH:?, .June- G. man v. .McAr«il(>, !)'.) N. V. 4.')1 ; in •■"• MfHnj,'li V. McCoic, '.•7 Wis. Kan.sas aa gift to priest, H.-iirison 1(5(5, to L. I{. A. 7-24 ; Festorazzi v. v. Hropliy, .^9 Kiins. 1, K) !>. U. A. Hf. .FoHPpirs Cafliolif f'iiiircli, 104 71!!. Ala. ;{U'7, l^f) \j. H. A. :^(50; Story •'. llnll:in.l v. Allc.rk, lOH \. Y. Eijnity JiiriMpriKlrMifo, IIOI; conlni W}'!. M«iran v. Moran. In| I.,. _'|(i, :t!i I,. nci,. 7((|. K. A. I'OI; Slu-rnian v. I'.akcr, 'JO ej AIUmi v. Slovens, 1(51 N, Y. W. I. U(l. JO \.. K. A. 717; Wr-1.- I'JL', .If) N. K. .^.(58. »tcr V. HuKhrow, 09 N. H. 380, 48 § 370 PERPETUAL RENTS. 3 I i § 370. Perpetual rents. '-i — Rents are at coiiuikjh law incor- poreal hereditaments and as such interests in real estate. TIk-v are either incidents to feudal tenure (rents service), or may be created irrespective of such tenure (rents charjtje or rents seek). The difference between the two kinds of rents is tliat a right to distrain inheres in the rent service, and had to be expressly reserved in the other class. Rents service in Ent;hind could not be reserved on grants in fee after 1290, in conse- quence of the Statute Quia Emptores. Feudal tenures have disappeared in America (they are expressly abolishcMl hy the constitutions of New York, Arkansas, Minnesota, Wisconsin), and, except in Pennsylvania,^^ rents service issuing out of estates in fee simple have become impossible. Perpetual rents charge can, however, be created in nearly all states, although they are most unusual.'*^ In Pennsylvania where such rents occur, the legislature in 1869 attempted to provide for the compulsory redemption of existing irredeemable rents at the option of the owner of the land, but the act was declared un- constitutional.^*^ The court admitted that it would have betMi within the power of the legislature to forbid the future creation of perpetual rents ; but this the statute failed to do, operating only on existing rents, and apparently assuming that new rents were not apt to be created. In ]Maryland ground rents are redeemable after fifteen years. The absence of provisions in other states is probably to be ascribed like- wise to the fact that such rents are not as a matter of fact created ; in France and Germany all rents are necessarily re- deemable after thirty years,^^ in Germany with a reservation in favor of territorial laws. § 371. Long leases.— The constitution of New York, while saving rents created prior to 1846, prohibits leases or grants of agricultural land, for a longer period than twelve years, in which shall be reserved any rent or service of any kind.-*^ 43 See, also, § 589. aft of Pennsylvania of 1855 de- « Ingersoll v. Sergeant, 1 Whart. elaring ground rents to be extin- 337; see Gray Perpetuities, § 26. guished where no payment or de- 45 See Scott v. Lunt, 7 Pet. 596. niand for payment had been made Leases in fee are recognised in New for 21 years, see Wilson v. TsemiMi- York by statute. Real Property ger, 185 U. S. 55. Law, § 193, Laws 1805, t-li. 98. ^7 C. C. 530, P. C B. 1202. 46Palairet's appeal, 67 Pa. St. ^s Constn. 1, 14. 479; see Sec. 589, infra. As to an 378 FKEEDOM OF PKOPEKTY.-PEKPETUITIES. § 371 The same provision is found in Michigan,-*'^ and, with a change of the maximum term, in lowa,^" JMinnesota,^'' and Wiscon- sin.^- Ahibama provides by statute that no leasehold estate can be created for a longer term than twenty years. California, Nevada, and Dakota limit leases of town lots and build- ings to twenty years, of agricultural lands to ten years. With reference to the prohibition contained in the consti- tution of New York the Court of Appeals of that state says: "The theory of the convention which prepared the provision was that long leases of agricultural lands for agricultural purposes were detrimental to the interests of agriculture, be- cause the tenants had no desire to improve by the best method of cultivation, an inheritance which was liable to pass from them and their descendants without a compensation. "^^ ^^j^jg reasoning seems very peculiar; for the longer the leasehold, tli(> more will the tenant be apt to make improvements, and it is upon this theory that long or perpetual leases are favored by economists. In short leases there will be no inducement to the tenant to make permanent improvements, unless the law secures him compensation therefor upon the expiration nt his lease; and in Enuland and Ireland such right has been in part secured l)y legislation.^^ In the United States such laws seem to be unknown. The natural effect of the prohibi- tion of long agricultural leases would seem to be that land will not be leased for cultivation, but that the owner will cultivate it through hired labor. Tills system will tend to produce small peasant proprietors, and to prevent the development of a class of great landlords and socially and politically depend- ent farmers. In this light the prohibition of long leasi^s a])- f)ears j)iMmaiMly as a measure of a political character. Inci- dentally it may, like the abolition of primogeniture and of entails, prevent the accumulation of landed holdings in a few hands. It is, however, to be noted that in most ol" the states there is nothing to prevent the format ion ol' large corporal ions Tor agrienJtnr-al purposes. It seems also that irrigation eom- patdcs by oiitaitnng control ol" the soin-ces ol" watei" supply, "18, 2. ISlC, pir.L-, 1(1.-);!, \{hu\; iM:ih.s, Nut. 'I ft"!, 24; 20 yoarfl. I'.l<. v. Sliiim, l(i:{ N. V. 300, 57 N. r-J 1, l.*); 21 yearH, K. (ill. f-z 1, 11; }r> yf.irn. ro |.';,u,(.(t M;inii:il I'nI. Ilcoii. di. '■••■' Htcplicil V. Ifc.Vllnl.l.s, (i X. Y. VII. 4r>\, jirliiitcs I'diiMtl. (kmvontidu ^ ;j71 LONG LEASES. Ijy.j could in the absence of regulative legislation, reduce landliold- ers to a condition of absolute dependence, and make tlicni to all intents and purposes rent paying tenants; in llic wcsti-rn arid states water rights have therefore beconic tiii- oljjcct of considerable legislative solicitude.^^ A system of perpetual rents and leases may, how^ever, also have its benelicial n-- sults. While at the beginning of the last century, the con- sideration of political and social dependence was controlling, and legislation was therefore inimical to permanent tenures of that kind, an opposite tendency has set in in recent years, and rent paying estates (Rentengueter) have been encouraged by statute in Prussia. They are intended to be used for the pur- pose of transforming agricultural laborers Into farmers on their own account. The German civil code, while declaring rents in general to be redeemable, has made a saving in behalf of the rent paying estates created under state legislation.''" 55 See §§ 414-417, infra. 51; jntrocluctory act to Civil Code, Art. 62. CHAPTER XVIII. BUSINESS AFFECTED WITH A PUBLIC INTEREST. § 372. statement of the doctrine.— The doctrine of property affected with a public interest Avas definitely formulated in this country in the case of Munn v. Illinois.^ The court laid down the principle that "when one devotes his property to a use in which the public has an interest, he in effect grants to the public an interest in that use, and must submit to be controlled by the public for the common good to the extent of the interest he has thus created." The business affected by the case before the court was that of the storage of grain in elevators in the city of Chicago ; the public control exer- cised consisted in the regulation of charges. A number of other cases decided at the same time (all these cases being l Kovoriinicntal Austerberry v. Corp'n of Oldham, control regarding charges, discrim- 29 Ch. D. 750, on p. 784. inatiou, etc. In Anstria oontro- 3 The doctrine that a railroad is versies as to interpretation of rail- affected with a public use is laid road charters are assigned to the down with especial clearness in 01- ailiiiinistrative courts, the regular cott V. Supervisors, 1(5 Wall (iZS. civil jurisdiction being excluded. In foreign countries railro:ids are (Roschor Nationalockoiuiniie III. also regarded as semi-public j)r()p. -JOO.) erty if they are not altogether ' In (;crn\aiiy niiiiing is also owned and managed by the state, treated as a business affected with 382 BUSINESS AFFECTED WITH PUBLIC INTEREST. ;< 374 While it may be said that the various classes of business mentioned have to do with either transportation, or finance, or the necessaries of life, or the staple products of the com- munity, it does not appear that they have one common char- acteristic which could explain the special public interest. Turning to the special control exercised over them, we lind that it assumes one or more of the following forms: the regu- lation of charges ; the requirement of equal service ; require- ments in the interest of public convenience ; and requirements and restraints in the interest of financial security. It is then necessary to inquire, to what classes of business each of these requirements applies, and how it is justified by the nature of th»^ liusiness to whicli it aj^plies. EEGULATION OF CHARGES. §§ 374-385.5 ;i 374. English legislation. — The English Statutes of the Kiiilm show only I'ew parliamentary enactments regarding charges or prices. Of the time of Edward II there is an assise of bread and ale, and an act fixing toll at mills, and the prices of victuals form the subject of a statute of Henry VIII.'' The legislation regarding the rate of interest on money has already b('(Mi referred to; closely allied to it is the legislation as to profits on exchange of money, of which an exam])le is found in 25 Ed. Ill st. 5, c. 12. Reference has also been matle to the Statutes of Laborers ])roviding for the fixing of maxinuini rates of wages. Of the timi^ of Ihc Tudors we lind statutes fixing prie St. Tiouis V. Jiell Telephone Co., 75, 1.'') L. R. A. 321; Chicajro TTnioii Traction Co. \. ChieaKo, 100 Til. 484 and 579, fi5 N. E 451 and 470. '•• 2r. Henry VIII. .ap. 2. .\s to the dilllcnllies of a just assise of bread see lioHeher Nationaloekono- inie III, 798, 800. T 3 HcTirv VII, 13. §374 REGULATrOX OF t 'I1AI;(;|> :383 men,** books,'-^ and beer barrels.'" The price of coal m Lon- don is fixed by 16 and 17 Car. U c. 2; and by li W mul .M. c. 12, § 24, the justices of Ihc peace are authorised to assess the prices of land carriage for all goods. These statutes proli- ably do not represent the whole of authoritative regulation <>\' charges in England, which should include rates made by local authorities, under charter authority or prescriptive right. If we ask on what principle the power to regulate was claimed, different considerations will be found to ai)ply to diffci-cnt subjects: the price of bread has been from an early time the object of governmental solicitude in all countries; maximum wages were fixed as a means of restraining the laboring cla.sses; the regulation of the rate of interest was regarded as a license rather than as a restriction. But generally the doctrine of the later Middle Ages, enunciated especially in th<^ writings of the canonical jurists, was that every commodity had its just and true price, and that determination by public authority was not only a legitimate, but in many cases the best method of getting at this price. ^^ The doctrine has been abandoned in England, and the old statutes are no longer in force; hut the 8 6 Henry VIII, cap. 7 ; 2 and 3 P. & M. cap. 16. 9 25 Henry VIII, cap. 15. 10 35 H. VIII, c. 8. 11 Cunnhigliam, Growth of Eng- lish Commerce II, 232, and espe- cially Endemann, Studien zur Eo- manistisch - Kauonistischc'n Wirt- sehaftslehre II, 38. order to make them into bread and ale. Not to do this would have been to the mind of the thirteenth century, and for many a century afterwards, to surrender the price of food to a combination of bakers and brewers, or to allow a rapacious dealer to starve the public. They thought that whenever the value or Rogers, Six Centuries of Work part of the value of a nc<'css:iry and Wages, p. 140: "No police commodity was wholly determinable of the middle ages would allow by human agencies, it was possible a producer of the necessaries of to appraise those agencies, and life to fix his charges by the that it was just and necessary to needs of the individual, or in eco- do so. That we have tacitly relin- nomical language, to allow supplies quished the practice of our fore- to be absolutely determined by fathers is, T repeat, the result of demand. The law did not fix the the experience that competition is price of the raw material, wheat or suflicicnt for the protection of the barley. It allowed this to be de- termined by scarcity or plenty; in- terpreted, not by the individual 's needs, but ])y the range of the whole market. But it fixed the value of the labour which must be expended on whcnt and barley in consumer. But I am disposed to believe that, if a contrary experi- ence were to become sensible, wt' sliould discredit our jiresent prac- tice and revive, it may be, the past, at least in some directions." 384 BUSINESS AFFECTED WITH ITl'.LIC INTEREST. §375 earlier practice of legislation has not perhaps been without influence upon the doctrines of American courts. § 375. American legislation regarding prices and charges.— Legislation in the colonies seems to have confined itself to the following of English precedents: the Revised Laws of Massachusetts of 1649 show regulations of prices or rates in the following matters: interest on money; wages; bread; fer- riage; mill tolls; and wharfage. ^Massachusetts also provided for punishing those taking excessive wages or unreasonable prices for merchandise, and in 1777 enacted for the City of Boston an elaborate tariff of charges for labor and merchan- dise, which, however, was repealed in the same year.^^ '['[^^ earliest legislation of the Colony of New York in this matter relates to wharfage rates.^^ A statute of the State of New York of 1786 provided for the furnishing of books by authors at reasonable prices.^ ^ The regulation of wages has been abandoned in all states, and is forbidden by the constitution of Louisiana;^-'' the ma- jority of states regulate the rate of interest on money ; many states provide for authoritative determination of mill tolls, ferry and wharfage rates, and pilot fees. Turnpike corpora- tions and canal companies were first formed by special acts, which often fixed the tolls;"' Avhere turnpikes are now estab- lished under general acts, local authorities are often given power to regulate tolls, so in Illinois.'" The early railroad charters likewise regularly contained provisions regarding rates; and in the first general railroati ae-t, that of New York of 1848, the legislature reserved the right to reduce rates, so that the annual profits should not fall below ten per cent. A nunilx-r, although not a majority, of states, now undertake or give power 1(» railroad commissions, I0 liniil or reeuhile rail- road rates, oftener \v\\\\ reL:;ifd In passenger tliati tVeiLjlit rates.'^ In 1871, niinois added t(» ihc list of state i-cLiulated f'harges tlie wareliousing of gi-ain, and this legislati(tn has heen roljowed in ;i innnlter i)\' the \Ves1(>i-n stales: and some izDnno'H Ahriilgprnoiit Vil, p. .''.<». i' I{c>v. Sl.il.. Tollronds, § 0. >a Act of .June L"J, 17:5). o*StimHon Am. Sl.it. I/iw 11, >• nrornlfjif L.'iwH. j.. J75. i:{.')-441, 4ir>-\r)\l; iiisd lutcrst. ''•8 . (,'0111. ('(iiiim'n V. ("iii('inii:iti, &c., R. '" rVrrin*) v. fhoHapcako & Del. Co., 1G7 U. S. t7!>, •J*».')-4!»!>. f'nnnl Co., !» H..\v. 172. § 376 EEGULATIOX OF CHARGES. 385 of the tobacco producing states regulate the charges for ware- housing tobacco, so North Carolina by act of 1895. The legis- lation of the last decade has added to the list of regulated charges: telephone rates/'' insurance rates,^" the price of gas,2i and the price of water,^^ ^jj^j ^j^q charges made by stock yard companies. ^^ Mention should also be made of the power contained in city charters to regulate the compensation of hackmen,^^ dray- men, omnibus drivers, porters, expressmen, and others pursu- ing a like occupation. ^•'' § 376. Attitude of the courts.— Local regulations have not, in the past, been subjected to serious judicial scrutiny as to the question of their constitutionality.^^ The iixing of maximum rates of interest has always been upheld without questioning, the long established historical usage being re- garded as a sufficient justification. The regulation of grist mill tolls has been sustained in Maine upon the ground, that from the early colonial times mills have always been aided by legislation in the public interest.-' The constitutionality of the legislation regulating railroad charges was upheld, upon the fullest consideration, in the Granger Cases,^^ which at the same time sustained the regulation of warehouse rates. The principal opinion was w^ritten in the warehouse case (ilunn v. Illinois), and the court relied most strongly upon the fact that the business of grain elevators in the city of Chicago, a "gate- way of commerce, ' ' constituted a virtual monopoly. The same justification applies still more strongly to railroads; for the business of a railroad, which calls for extraordinary legal priv- ileges in the exercise of eminent domain, has some of the fea- " Indiana, Maryland, 1896. -^ Illinois City Law, V, § 1, No. 20 New Hampshire, 1899. 42. 21 New York General Laws, ch. -'s Sustained in Commonwealth v. 40 § 70. Duane, 98 Mass. 1; Commonwealth 22 Illinois Act of 1891. v. Gage, 114 INIass. 328; also Chi- 23 Nebraska and Kansas, 1897. cago Union Traction Company v. The act of Kansas was declared un- Chicago, 199 111. 484 and 579, 65 N. constitutional on account of its un- E. 451 and 470, case of a stret-t reasonableness and inequality; see railroad company. Cotting V. Kansas City Stock Yards 27 State v. Edwards, 86 .Mo. 102, Co., 183 U. S. 79. 25 L. R. A. 504. 2* As to regulation of hackney ^s 94 U. S. 11. ^, 155. ir,4. 179, coaches see Anderson, Origin of 180, 181, 183. Commerce, 1635, 1637, 1654; Ry- raer's Foedera XIX 721, XX 159. 25 386 BUSINESS AFFECTED WITH PUBLIC INTEREST. § 376 tures of a de jure, as well as of a de facto monopoly. Not- withstanding: some more general expressions, the Granger Cases might have been construed as making the power to regu- late charges dependent upon the monopolistic character of a business; and the same view may be taken of the decisions in Budd v. New York,-^ sustaining the New York statute fix- ing elevator charges in the cities of New York and Buffalo, in which the court likewise dwelled upon the virtual monopoly enjoyed by the business, and in Spring Valley Water Works V. Schottler,^" where it is recognised that the state may regu- late the price of water if the supply is monopolised. But the requirement of a monopoly, legal or actual, as a justification for the legislative regulation of charges, was abandoned in Brass v. North Dakota, where the regulation was upheld, al- though the grain elevator business in that state did not pre- sent any feature of monopoly.^! "When it is once admitted * * * that it is competent for the legislative power to con- Irol the l)usiness of elevating and storing grain, whether car- ried on by individuals or associations, in cities of one size and in some circumstances, it follows that such power may be le- gally exerted over the same business Avhen carried on in smaller cities and in other circumstances." The expressions in the earlier cases concerning the monopolistic character of the business were now declared to have gone only to the ques- tion of the propriety, ;iii(l not ol" the power of such legislation. The decision was rendered liy a l)a fc majoi-ily of the couft. and the dissenting opinion again emphasised the view that only a practical monopoly justilies the regulation of charges. The regulation of tobacco Avai'ehouse charges would be sim- ilar in i)riiiciple to the i-egulalion ol" gi-ain elevator charges. The regulation oi" telepJKMie i-a1es has bei-n uj)held upon the same grounds as lliat dI' I'ailioail i-ates.''^ The regulation of insurance rat«'s has not yt'\ heen passecl upon jnilicially.'*-'' ji 377. Justification by legal or virtu.-^l monopoly.— When '-fo 143 U. H. fjlT. "lulled, :iii(l in Homo caspfl (bakorH, ■■"'llO U. S. 347. imikoppcrH, «&('.), a requirciuont to ai 1.'j3 U. S, 391. • |)n8t ratoH lias boon Hnhsfitutcd. ■■*2 Hockett V. Htatf, lO.'i Iixl. 'J.'iO; Charges uf ixntiTs, k<(|Mrs of |)iil)- <'fiitral Union Td. Cn. v. Hradlinry, lie convcyaTicrH, cliiiniicy swccpH aii:» I.'. S. .'.'.M. of jirofi'HsioiiMl iiHMi, " ;is thoiijrli •■'7 I'i'o[ilo V. Bmlil, 117 \. V. 1. — tlicv Wf-ri- ii iriiiimnn siwcics of Ic^is- Justico WuHliiiifjfoii, ill Oyilcii v. lalioii. SiiuikI.th. I'J Wlu-at. L'l.S, p. 25\), ic ''^ State v. lOdwnnls, HO Mo. lOL*. ffPH to "lawH wliicli limit tli<' fns ■■> Ur I'rfHton. (V.\ Oli. St. 4'J.S, .^!) § 379 KEASOXABLENESS Ul" i;A Ti:. 389 A possible solution of the difficulty niay bi- I'ouiul in ilw application of the principle of ecjuality. Concedinf^ that it is within the general scope of the jjolicc i)Ower to prevent un- reasonable charges as constituting a form of economic oppres- sion and, as a means of prevention, to fix rates, yet it is clear that a systematic regulation of charges of all commodities ann ol' the legishiturc in tletermining Avhat shall be a maximum reasonable rate, is uncontrollable by the courts, was first questioned in the so-called Railroad Commission Cases^3 decided in 1886. It was noAv said that the power of limitation or regulation is not itself without limit; that the power to regulate is not a power to destroy, and limitation not e(iuivali'nt to confiscation. That under pretense of regu- lating fares and freights the state cannot require a railroad corporation to carry persons or property without reward, for tiiat would amount to tiiking property for public use Avithout just compensation, oi- Avithout due process of law. The court, however, had no occasion in the case before it to apply the judicial j)ow«'i- llius asserted, for no tai'ilf had yet been estab- lished, ;inil llic st.ilute exj)ressly provided that in ;ill trials of cases lirniiLilii for ;iii\- violation ol' ;iny Ini'ilV of charges as fixed by the eoiiimission, it iniLiliI he shown in defence that such tariff was unjust. In l)romptory orders ■*'' Sec. So, of Act. that in the future tlie railroad com- -is Sec. 8f. panies should follow the rates whicli ■"* Sec. 8g. it had determined to have been in 392 BUSINESS ATFECTED WITH PUBLIC INTEREST. § 381 It was further provided that the Commission should conduct its proceedings in such manner as would best conduce to the proper dispatch of business and the ends of justice. That it might make general orders for the conduct of proceedings "including forms of notices and service thereof which shall conform as nearly as may be to those in use in the courts of this state. Any party may appear before the Commission and be heard in person or by attorney." Its proceedings were to be public if required, and any member was authorised to administer oaths and affirmations.^" The Commission was also vested with power to require attendance of witnesses and the production of books, and to that end was given leave to in- voke the aid of the courts.'^ ^ In this case it was sought to enforce a tariff which the Commission had established after complaint made as to cer- tain rates, the railroad company having appeared and been heard by the commission before the making of the tariff. ]\Ian- damus proceedings were instituted, and ihc Company applied for a reference to take testimony on the issue raised by the allegations, and as to whether the rate fixed l)y the Commis- sion was reasonable, fair and just. The court denied the ap- plication for a reference and rendered judgment that a per- emptory writ of mandamus should issue, the only (juestion in issue being the violation of the law, and not \hc reasonable- ness of the rates which was conclusively established by the linding of the Conniiission. The United States Supreme Court held that the Act did not satisfy the principle that llie reasonableness of rates can be established conclusively only by due process of law, since there was no power in IIk' eoui'ts lo stay the hands of tlie ConiJiiission if it chose to establish unecpuil and uiu-easonable rates; that under the construction placed by the state court upon tlie j)owers of tli<' Commission, it eo\il(| not he regarded as ei(»tlie(l with judicial runetions or |)ossessing the machint'ry of courts of justice; that the Commission might declare rates without |)revious lu'aring, suninions oi- notice to the coiii|);iny .,!■ without oiipoftunity on its p.'irt to |troduce witnesses or indeed ;in\thiii<.'- hiiving the srinlil.ince of due process ol" hiw; that altlioMgh the eoiripiiny here ;i p|)e;irr(|, thcfe was nothing to show wh;it th«' ••li;ir;icl it of the investigation was or how r'OSec. 9f. f-' See. 13b. § 382 RATES FIXED BY LEGISLATURE. 393 the result was arrived at. The provisions of section 9f and 13b above set forth were considered either as not nianrhitory upon the Commission, or as not applicabk^ to the process of finding the just rates, or as not satisfying what the Supreme Court deems essential to a judicial investigation, and upon this theory the act undertook to grant a power to concludi* a constitutional right without due process of law, and thereby contravened the Constitution of the United States. This ea.sc, then, establishes the principle, that the legislature in regu- lating charges cannot leave the conclusive determination oi" the question of reasonableness to administrative authorities not proceeding under the same safeguards to private I'iglits as courts of justice. ^Moreover, it is intimated that the mere failure to provide expressly for judicial review violates the re- quirement of due process of law. § 382. Rates fixed by legislature.— As regards rates fixed by the legislature directlj^ it has never been held that the statute itself must provide for judicial revision, and while provision for an appeal to the courts is not infrequently made where the power to fix rates is delegated to local legislative bodies,! no statute determining charges directly contains a provision to that effect. When the case of Budd v. New York^ came before the Supreme Court, this being a case in which charges for elevating grain had been fixed directly by statute, it was contended among other things, relying upon the Minne- sota case, that the question of reasonableness must be reserved for judicial investigation. But the court now drew a dis- tinction between rates fixed by the legislature directly and rates which were left to an administrative commission, and held that as to the latter due process must be secured by the statute, while as to the former that is not necessary.-^ Th<' records in the case of Budd v. New York not showing that the charges fixed by the statute were unreasonable, the court could not inquire into the question of reasonableness, "even iSo Illinois Act June 6, 1891, trative and not as lopislative. Tn with regard to water rates, see California a determination by a lo- Hurd's Eev, Stat. 1899, Cities No. cal legislative council without hear- 257f, ing was held not to constitute due 2 143 U. S. 517 1892. process of law. San Diego Water n A rate made by a local govern- Company v. San Diego, 118 Cal. 556, ing authority for a particular com- 38 L. R. A. 460. pany should be regarded as adminis- 394 BUSINESS AFFECTED WITH PUBLIC INTEREST. § 3^3 if under auy circumstances we could determine that the maxi- mum rate fixed bj' the legislature was unreasonable." It ap- pears that even the power to ([uestion legislative rate is here draAvn in doubt. >; 383. Jurisdiction of federal courts.— The competency of the judicial power to ^inquire into the reasonableness of rates was again strongly insisted upon in Reagan v. Farmers Loan & Trust Company.^ AVhile the case arose under rates established by a railroad commission, the court distinctly says that there is no doubt of the power and duty of courts to inquire whether a body of rates prescribed by a legislature or a commission is unjust and unreasonable, and sueh as to work a practical destruction of rights of property, and if found so to be, to restrain its operation. In this case a Texas statute had provided that rates shouhl be established by a commission, but only upon notice to the railroad company to be affected, Avhich should l)e heard and have process for attendance of witnesses; the rates thus established to be con- clusive until finally found otherwise in a direct action l)rought for that piifposc ill a coiji-i nf coiuiicti'iil jui'isdiction in Travis Couiit\'. Texas, in wliicli tlif hiirdcn of i)roof should rest upnii iht' plaint ilV. A suit in (Miuity was hi'ouLiht by the plaintiff's, citi/cns of New ^'o^k, in tiic Tnited States Cir- cuit Court, a court holding sessions in said Travis County, against the Texas Kailroad Commission to r(>strain it from I'nfoi'cing the rates i-stablishi'd by it. The Cnitcd Stati's Supreme Coui'l upheld the jurisdiction oi' Ihe Circuit Court for tliat purpose upon the gi-ound that Avhenever a citizen of a state can go into the state courts to ilel'end bis propertx rights against the i I lee a I acts of state (tt'licers. a eit i/eii of a not her state may inxnkc tbr iiirisdiet ion ot" the federal courts \n maintain a lik'e dereiicc, and that no leeislat ion of a state as to tlie mode of |)ro('('cding in its own eiMirts. can abridge or modify the powers cxistiiiL' in the fedei-al courts sittiuLr as courts of e(piify. i5 384. DilHculties of judicial control. It is clear ttiat ilie determination of a just, rati' depends upon (dose and com|)li cated cah'uhitions in ea(di ease, and the question naturally sui/i/ests its. 'If: is this a proper I'uiKdion fur the courts to per « ]r,4 V. s. .^r,L', ih94. ^ 38-1 JUDICIAL CONTKOL. :{.j-j form? One dauj^er is adverted to iu Chica{,'0 &c. H. Co. v. Wellman,-"' namely, that of collusion between the railroad com- pany and a person suing for a penalty on account of a eharg.- exceeding the legal rate, such action being brought in tn-tU-v to establish the unreasonableness of this rate Tb.- <|u.'stion can be fairly concluded only if the pul)lic arc pi'opcrly repre- sented, and the United States Supreme Coui-t suggests for this purpose a ])i!l in ('((uity against the railroad citnimission or other board, which is possible only if the fixing or adnjinis- tration of rates is entrusted to a board.'' This course was adopted in Reagan v. Farmers' Loan & Trust Comjiany witli regard to the legislation of Texas." As the Supreme Court has pointed out,^ the question of the reasonableness of rates would be more easily determined by a commission composed of i)ersons whose special skill, observa- tion and experience avouIcI qualify them to so handle great problems of transportation as to do justice both to the public and to those whose money has been used to construct and main- tain highways for the convenience and benefit of the people. In the Reagan case the court had said that the formation of a tariff of charges foi' transportation is a legislative or ad- ministrative rather than a judicial function, and that it is not the province of the courts to enter upon the merely administrative duty of framing siu'h a tariff. TIk^ courts merely restrain what is unreasonable. The states have at- tempted to provide the administrative machinery, but since the question of reasonableness is a judicial one. the work of commissions must always be open to revision by the courts ami to possible destruction without the substitution of something better. It should, moreover, be noted Unit a statute imposing simply a penalty for charging more than a just and reasonable compensation, without fixing any standard to determine what is just and reasonable, has been held unconstitutioiuil because it leaves the criminality of the carrier's act to tiepenil upon the jury's view of the reasonableness of the rate.'' This view would not extend to a statute giving or withholding 5 143 U. S. 339. sSinytli v. Aiiics. Itiii l'. S. 4ljli. cSo also St. Louis & S. F. K. Co. '> Louisville & Xaslivillo R. Co. v. V. Gill, 54 Ark. 101, 11 L. Tf. A. 452. Commonwealth, 99 Ky. 13-J. :W ^.. ' 154 IT. S. 362. R- -^^- -^^- i^i't' § -^ supra. 396 BUSINESS AlTEt'TED AVlTll PUBLIC IN'TEBEST. § 385 merely civil remedies in case of unreasonable charges, for it was said in Munn v. Illinois i^*^ "In matters whicli affect the public interest, and as to which legislative control may be exercised, if there are no statutory regulations upon the sub- ject, the courts must determine what is reasoimble." But an act should not be made penal without being detined to a com- mon certainty. ^ 385. Judicial regulation. — In order to satisfy the principle tliat the question of reasonableness can be determined only by due process of law, the legislature of the state of Kansas, convened in special session for that purpose, created a Court of Visitation for the establishment of railroad rates. This court was vested with full common law and equity powers, and its final decrees were made reviewable by the Supreme Court on petition in error. The court was vested with juris- diction to try and determine nil ([uestions as to what are reasonable freight rates for the transportation of property ])etween points in the state, to apportion charges between con- necting roails, to classify freight, to require the construction and maintenance of facilities for public convenience, to compel reasonable and impartial tram and car service for all ])atrons of the railroad, to I'i'Liulatc ci-ossings and i)rescribe rnles for safety, and to restrict railroad corporations to opciations within tlieii- chai-ter powers. Proceedings were to be insti- tuted in this couft in Ihc name of the stale hy the State Solicitor npon complaint of unreasonable charges, oi- discrim- ination, oi' violation of law or negh^'t of dnty, the decree of the court to ailjndge what are reasonable rates for each and every charge and sei-vice at issue in the ease, and perpetually enjoining tin* defeiidant I'foni ih'niaiidiMg. charging or receiv- ing any olhci- or different I'atcs oi- chai'ges than those deter- mined liy the decree to he re;isona hie. The burden of |H'oot' upon any lirst deteniiinat ion as to what was re;isoii;d»le was imposed upon the railroad company; upon seeking any change from this lirst determinal ion. tin' complain.iut was to |M'ove linil it had become unn-asonahle.' ' The Supi'cme ('(Mirl id' K'ansas held fh.-H ihe court (d' visita- tion was it court for the determination of cont roxcrsies, and was at the Kaino time vested with legislati\c I'uik lions h>' hf'JMg given pow<'?" to establish general schedules u\' rates; i"'.tl U. .S. 113. H .\r| (if .):iim;ov :',, 1 M!»!). § 386 JUDICIAL REGULATION. 397 that this confusion of judicial and legislative functions vio- lated the principle of the separation (^f powers and that the act was therefore unconstitutional. '- A statute of ^Massachusetts regulatinjU' the water supply of certain towns and cities provided: "The selectmen of a town or any persons deeming themselves aggrieved hy the price charged for water by any company may in the year 1898 and e\ery fifth year thereafter apply by petition to the supreme judicial court, asking to have the rate fixed at a reasonable sura, * * * ;iiij two or more judges of said court after hearing the parties shall establish such maxiimini rates as said court shall deem proper; and said maximum rates shall 1)e binding upon said Avater company until the same shall be revised and altered by said court pursuant to this act." It was urged that the provision was unconstitutional as transferring to the court legislative powers, thereby violating the principle of the separation of powers. The court admitted the plausibility of the contention, but preferred to interpret the act in such a manner as to sustain its validity. It therefore held that the judgment of the court was binding only upon the parties before it, and that the legislature only secondarily adopts the rate thus fixed between the parties as a general rate for all. "If this is so, the question whether such a legis- lative consequence can be attached to the decision, is not before us."^^ REQUTEEMENT OF EQUAL SERVICE. §§ 386-394. § 386. To what kinds of business applicable.— By the com- mon law the obligation to render to all alike, at the customary rates, the ordinary services for which the business is estab- lished,^-* to the extent of its available resources, is imposed Instate V. Johnson, 61 Kan. 803, whose business is not tr:ivoI. hnt to (i() Pac. 1068, 49 L. R. A. 662. tlo business with the travellers, so- See, also, as to illegality of delega- lieiting their patronage, &e. Jeneks tion of legislative power to courts, v. Coleman, 2 Sumn. 221, 1835. The Nebraska Tel. Co. v. State, 55 D. R. Martin, 11 Blateh. 233; Neb. 627; Norwalk Street R. Co. 's State v. Steele, 106 N. C. 766. So Appeal, 69 Conn. 576. the business of the innkeeper is to 13 Re Janvrin, 174 Mass. 514, 55 entertain travellers, not to keep per N. E. 381. manent boarders. Lamond v. Tlie i*The ordinary service of the Gordon Hotel, Limited, 1897. 1 Q. ( (uninon carrier is transportation, he B. 541. is therefore not bound to carry one 398 BUSINESS AFFECTED WITH PUBLIC IMTEEEST. ^ 387 upon the common carrier and the innkeeper, the common far- rier, and the owner of a public mill. There is at present some tendency to enforce a similar duty against some other kinds of business on the ground that they are affected with a public interest. So it was held in Illinois, that where tlu^ Chicago Board of Trade had voluntarily engaged for years in compiling- market quotations and of furnishing the same for a considera- tion by telegraph to all members of the public who desired to obtain them, whereby the business of buying and selling- agricultural products throughout the country had been brought under the control of market prices fixed and deter- mined by the board, the board had by its own act so far im- pressed on these quotations a public interest, that it should be required to furnish them to all without discrimination.^^* Again, in a later case, it was held by the same court, that the Associated Press having sold its news reports to various newspapers who became members, and the publication of such news having become of vast importance to the public, it had so used its franchise as to cliarge its business with a public interest, and that therefore all newspaper publishers desiring to purchase^ such news for publication were entitled to pur- chase the same without discrimination against them.^"^ But in a similar case this view has been repudiated by the Supreme Court of ]\rissouri.^^ vj 387. Equal and sufficient service.— The same duty is. moreover, recognised and enforced with regard to tliose classes of business in connection with which sp(>cial ])owers and ])riv- ileges are exercised, so with rcgjii-d 1o railroad coini)Miii(>s which are vested with llic powci- of consistent domain, and others using streets iind highways in a special manner, for 1fac|\s. pipes, |)(»h's ;ind wires. Some of Hk'sc being common carriers, ;ife subject \n the eomiiKni l;iw (lut\' above statiid ; in New Nrirk & f'liicago (!!;iiii & wns t'nrniprly, in ficniiMiiv, iriiixiscd Stoc-k KxcliiHij^c V. Cliicjigo Mil. of upon pliyHicinns, l)nl wns ;il)()li,sli(<(l Trado. I'J? III. l.^..'}, IS I,. R. A. ryfyH. ]>y iin|.eri;il lo;,'isl:il ion, (Joortr in Inter Occnn I'nhlisliinj^ Co. v. .Mover Vcrwnltnngsri'clit, p. 221. AHHoriatod Ph'hh, ]M4 III. -1.38. No hikIi oI. ligation rests upon pliysi- 17 State ex rel. Star I'niilisliinj,' cianH in American states lillur l>v Co. V. AsHoeiatcMl Press, l.'iH .Mo. eoinnion law or by statute, lluriev 410, rj] L. H. A. 1.11. V. Ivl.linnliel.l, !.'■)() Ind. 410, 51) N. An obligation to render scrvlccH H. ]0.'38, .13 L. ]i. .\. 1.3.5. ^388 KEQUIKEMENT OF EC^UAL SERVICE. I^^;, and all of them operating as a rule under corporate charters and under specific public grants, have assumed certain ohlif^a- tions toward tlie public. The extent of tills obligation is not easy to deline, but seems to exceed that of the common law. The (juestion is chiefly as to the extent of the service to be rendered. At common law the carrier and innkeeper were bound to render service only to the extent of their available accommodation/^ but this it seems is not the whole measure of duty of a public service company, which as a rule by the terms of its charter is bound to maintain a service sufficient to meet the public demand, so far as it can be done in the nature of things, and in accordance with the ordinary condi- tions of business.^ ^ Inevitable inadequacy of service, however, does not excuse arbitrary or prejudicial discrimination,^" and such discrimination gives rise to a private cause of action, as well as the refusal to render a service which the pul)li<* service company is able to provide.^^ § 388. Grounds of requirement.— Where a business enjoys special privileges as to the use of public streets, or otherwise exclusive rights (as in the case of a ferry franchise), the duty of equal service is easily justified as a condition necessary to render the special grant consistent with the public interest. So in the Board of Trade and Associated Press cases, the ele- ment of a de facto monopoly clearly entered into the consid- eration of the court. But this element is conspicuously absent in the case of the innkeeper, and does not necessarily belong IS Jackson v. Eogers, 2 Shower 345, where an insufficient supply of 327 (Eng. K. B.), 1683, action for natural gas was held not to excuse refusing to carry goods. "It was Ihe refusal to serve one particular alleged and proved that he had con- person. Quaere, whether in such a venience to carry the same. " case priority of application should 10 Ballentine v. North Missouri not be held to satisfy the demands R. R. Co., 40 :\Io. 491. The terms of equality. As to preference of of charter or statute must be scru- perishable o v c r non-perishable tinised in every case in order to de- freight see Tiorncy v. New York termine whether there is a duty or Central & H. R. R. Co., 70 X. Y. a discretionary power. See People 305. , v. New York, L. E. & W. 'R. R. Co., 21 Ayres v. Chicago & N. W. K. 104 N. Y. 58; State v. Kansas Cen- R. Co., 71 Wis. 372, 37 N. W. 432; tral R. R. Co., 47 Kans. 497. See Chicago & A. R. R. Co. v. Erickson, § 395, infra, and note 43 L. R. A. 91 111. 613. _See^ also.^^taje jex rel 225. Atwater v. Del. L. & W. R. Co., 48 20 See State ex rel. Wood v. Con- N. J. L. 55, 2 Atl. 803. sumers' Gas Trust Co., 157 Ind. 400 BUSINESS AFFECTED WITH PUBLIC INTEREST. § 388 to the business of the common carrier. The obligation of the innkeeper, the common carrier and the common farrier is j)erhaps most satisfactorily explained as due to the policy of the law to give special protection to strangers and travellers, their entertainment being regarded in earlier stages of civilisa- tion as a semi-public duty.-- Blackstone explains the obliga- tion of the innkeeper by sayiiig that if he' hangs out a sign and opens his house for travellers, it is an implied obligation to entertain all persons who travel that way; and npon this universal assumpsit an action on the case will lie against him for damages if he, without good reason, refuses to admit a traveller.--' This theory might be applied to any business in which services or goods are offered indiscriminately to the public and in which no special arrangements are required witli each person who is to be served or supplied. It would only be necessary to provide that the customer's expression of his willingness to take shall be construed as an acceptance of the offer implied in the bid for public patronage, which would thus ripen into a contract at the option of any person who is willing to ])ay at the rates at which the services or goods are offered to all. But upon this theory the legal provision would not prevent anybody from setting up in business and giving notice at the same time that he reserves the right not to deal Avith particular persons or with certain classes of persons.^-* At common law a person may carry another ])er- soii oi- his goods by special contract without becoming thereby a common carrier,^''' and a man may offer to carry for hi it only incidentally to another l)usiness and as occasion may serve;-" in eitlii'r case there would ])e no obligation to carry without a special contract to that effect; a person may also li(il(i liiuiself out as a common carrier for certain kinds of goods or 1 r;iiis|i(ii-t;it imi only;-' Imt il is ;i vei-y (lifrei-eiit (|uesti()ii wlietlief ;i |-esei'V;it inn ol" the cli;! |-;ict (T indicnled, wliei-ehy |);il'- licnhir pei'sons or p.-irt icul;ir (dnsses of pei'sons iii'c exdnded, '■'-Hoe jiociiliar jiroviHioiiH reflect- -f^' Allen v. Snckrider, 'M X. V. in^f Hiis view in liCX ViHi^jfiflioniin 'M\. VI, 4, •!; IX, 1, (5, H, 21; Xil. :'<. -•" (ionln.i v. 1 1 utrliin.soii, I \V. & liO, Lex BurKiinilionjim 38, I. S. L'Sf.. lalMnekHfone III. liWi. -'7 .I<)linH(.n v. Miiji.in.l 11. \(. Co., '.«< See Mowlin v. I,_vnn, serve is based ui)on some ground contrary to public policy which otherwise affords a legitimate occasion for the exercise of the police power, such refusal as Avell as the exaction of unreasonable discriminating terms may l)e made illegal. Third, discrimination also assumes the form of showing special favors to some party whose patronage is especially valuable to the business. It is this kind of discrimination with which railroad companies have been especially charged. Where large and regular shipments permit economies not otherwise possible, the lower rate to the larger shipper is not in reality Hn<'(|ual treatment; and the common law does not forbid such, if indeed it foi'bids any diseriminatioii not involving unreasonable charges or a refusal to serve. •'•' A statutory prohibition of unjust discrimination is maiidainable to the same extent thai business may be required to be done on reasonable terms. In the case of railroad companies the jjrac- tice is perhai^s illei^jil without special legal provision, on ac- count of the monopolistic character of the business and the speci;il iirivilcu-es which it enjoys. •"" §390. Legislation against discrimination.— Legislation of an economic diai'acter, (as distinguished from the civil rights legislation) i-eciuiring service Avithout disci-imination has been enacted in America cliiefl\' wilh regjird to i-ailroad com- panies.-'"' Statutes based uimii 1 he same pi-inciple exist with I'egard to wmitIiouscs oI" grain,'"' and tobacco,''' telegrajih and ^2 Amori<-;ni I^ivo Stock Commis- )-i(»n Co V. Chieago Live Stock I'x- <•ll:ln^.^ 143 Til. I'lO; Dchiwiirc, 1.. iV \V. ]{. Co. V. Contriil Stock Y:ir. :?2( 1) ; coiiira. SCI • I ■'itclilnii •K 1 \i. i < ). \ . C,:\go, 12 Cr :iy ;<'.i:?; .l<.li insoii 1 V. Pciisacola, \-.- ., 1 a". Co., 1(1 Fla. 6; 23. See note, IS L. K. A. 105, ■''• Stimsoii A n:. SI 111. ^.■.\\^ 1 1. ss:{7. 1: ■'■<■ 1 Ilinois Ad .\,.i 11 '--'5, 1S7I, S<'.'. ' '. :i7 " S'ash V . 1 >:.«.-, M(l K.v. .■.:',!>, I>ii \VH § 4H1.3 §391 UNJUST I)J SCR I. MIX A!' I UN. 4(,;{ telephone corporations,"''^ and news agencies.-'" Life insuranec companies have been prohibited from discriminatinji: betwei'ii individuals of the same class or the same expectation of life, or between white and colored persons.*" In Kansas and N«»- braska, in 1897, stock yards doing a stated amount of business were declared by statute to be public markets.-" §391. What constitutes unjust discrimination. — With re- gard to railroad companies attempts have been made to formu- late, with some fullness, what constitutes unjust or ilU'gal discrimination. So the Interstate Commerce Act makes it un- lawful directly or indirectlj^ to charge any person a greater or less compensation for any service in transportation than it charges any other person for doing a like and contempo- raneous service in the transportation of a like kind of traffic under' substantially similar circumstances and conditions ;■*- also to give any undue or unreasonable preference or advantage to any person, locality or ijarticular kind of traffic, or to sub- ject the same to any undue or unreasonable prejudice or dis- advantage ;-*3 also to charge or receive any greater compen- sation in the aggregate for transportation of passengers or of like kind of property, under substantially similar circum- stances and conditions, for a shorter than for a longer distance over the same line in the same direction, the shorter being .included in the longer distance.^^ By speaking of "substantially similar circumstances and conditions" the act makes it clear that no mechanical rule of equality was intended to be enforced. The Supreme Court adopting the language of the lower court, says: "In respect to passenger traffic, the positions of the re- spective parties or classes between whom differences in charges are made, must be compared with each other, and there nuist be found to exist substantial identity of situation and of serv- ice, accompanied by irregularity and partiality resulting in undue advantage to one, or undue disadvantage to tlie olli.'f. 38 New York Gen. Laws, cli. 40, See Cotting v. Kansas City St. Y. g 103. Co., 183 U. S. 79. o9 Tennessee, 1899. *- Sec. 2 of Act; also an a.l.li- 40 New York Gen. Laws, chap. 38, tional act against rebates of F.'b. §§ 89, 90; Commonwealth v. Mor- 19, 1903, 3l' Stat, at L. S47. ningstar, 144 Pa. St. 103. *^ Se<'- 3 of Act. "Nebraska Gen '1 Laws 1897, ch. ^^ ^i^<'- '^ <^f •^<'^- 8; Kansas Laws, Sec. 7458-7465. 404 BUSINESS AFFECTED WITH PUBLIC INTEREST, § ;jy2 in order to constitute unjust discrimination.''^*'* Hence it was held that a railroad compan}' ma}- charge reduced rates for excursions, for large parties, for commutation tickets, etc. Results may have to be taken into consideration in order to determine the legitimacy of the discrimination. In the case of passengers, differences in rates may be made between those using the road to a greater or less extent; but in the case of merchandise "even if the same reduced rate be allowed to every one doing the same amount of business, such discrim- ination may, if carried too far, operate unjustly upon the smaller dealers engaged in the same business and enable the larger one to drive them out of the market."'*^ jj 392. Circumstances justifying discrimination.— The diffi- culty of determining what are substantially similar circum- stances and conditions appears from the radically different interpretation placed upon these words, as used in Section 2. and as used in Section 4 of the act. Under Section 2 it was held that a railroad company may not charge for transporting beer from Cincinnati to Pittsburg a smaller rate to A than to H. ])ecause A's warehouse is directly, upon the line of another road, by the use of which lie would save the expense of cart- age ; in other Avord§, that under this section competition does not create dissimilarity of conditions justifying discrimina- tion.^" Under Section 4 of the same act it was held that a railroatl company may charge a greater rate of freight from the East to Chattanooga than it charges for the longer distance to Nash- ville, because in its Nashville business it has to meet the com- petition <>r I'djuls I'litiiiiiiL;' IVdiii the North. '■'^ In lliis case, tlpii. «'i)iiii)otition does create dissimilarity of condition justify- ing discrimination, 'i'his priiu'iple had lieforc l)een recognised and the different 1 i-c;itiiient of cnnipctitioii iitidcr Section 2 ;iii(l Section 4 of tile Act explained as resulling iVoni the diriVi'eiicc of the purposes of the two sections, although it was not stated wiiercin that (lin'ererice of purpose lay.'-' In the East Ten- ^i Intcratat*' r'omiiu'rcf ('aiiy had voliiiitai-ily sold mileage li(d(i\v V. I',ci.l<-liii;iii. I'J.''. U. S. OSO. § 394 DISCRIMINATION PKESClUbED BV LAW. 407 favor of those who happen to use the road mort' than others. "The power of the h'jiishitiire to enact ^^[eneral hiws ret,'anl- ing a company and its all'airs does not inchide the power to compel it to make an exception in favor of some particular class in the community and to c.i n-y the members thereof at a less Slim than it lias the ri<;ht to charge for those who are not fortunate enough to be members thereof." Yet the court admits that the legislature may establish certain hours of the day during which trains shall be run for a less charge than during the other hours. This is said to be a rate for the whole public during those hours, and not a discrimination in favor of certain persons. The court does not say whether compulsory reduced rates for excursion or commutation tickets \vould be constitutional or not. If constitutional, what ground can be adduced for stopping the legislative power at mileage rates? If mileage ticket holders are a class, why not com- muters? and why not that part of the public which is in the habit of riding at certain hours of the day ? If the mileage ticket holders are a class in. a different sense, and the classifi- cation obnoxious to the constitution, why should the railroad company be allowed to discriminate in their favor? The soundness of the distinction made by the Supreme Court, as well as the soundness of the whole decision, from which the Chief Justice and two associate justices dissented, may well be doubted. It might well be argued that since the require- ment of equal service is essential to reconcile the existence of a monopoly with the equal protection of the law, all monopolies ought to be required to give equal service; if then, any discrim- ination is tolerated, it is because it does not violate, but carries out the principle of equality; it would thus follow that any discriminations which may be tolerated, may also be re- quired. The decision in tlie Smith case Avas necessarily follow<'d by the Court of Appeals of New York,-* but the requirement of reduced rates for mileage tickets was held valid as ap- plied to corporations created after the passage of the act.-"^ § 394. Discrimination forbidden though circumstances dis- similar.— Third : may the legishiture forbid diseriiiiiiiatioii where circumstances are dissiiuibu- .' May it especially re- 4 Beardsloy v. New York, L. E. •• I'unlv v. Erie R. Co., 162 N. Y. & W. R. C.^ 162 N. Y. 230, 56 N. 42, .56 N. E. 508. E. -188. 408 BUSINESS AFFECTED AVI Til PUBLIC INTEEEST. §394 tiuire that services or commodities of different values be given and paid for at the same rates? This question enters into the determination of the validity of the coal-weighing acts enacted by a number of states. The merchantable quality of coal being determined by the size of the pieces, the coal delivered by the miner is put through a screen which sifts the compara- tively worthless small or slack coal from the valuable lump coal. The lump coal is then weighed, and the miner paid •accordingly. The object of the coal-weighing acts is to com- pel weighing before screening so that the miner may be paid for all the coal mined by him. In so far as the effect of this would be to make the operators \)ny the same price for su- perior and inferior coal or for work of superior and inferior skill and care, it would compel equal payment for unequal re- turns. Upon this ground the coal-weighing act of Ohio was declared unconstitutional.*' It may also be contended that reasonable discrimination is forbidden, where the law requires that incidental services be rendered free of charge. In Kansas a statute was declared uncon.stitutional which required that where a carload of live stock was shippeil the usual price charged therefor should in- clude transportation of the shipper. The court said: "We do not mean to say tlinl the legislature is powerless to declare nRe Preston, 63 Ob. St. 428, 59 N. E. 101. In Arkansas this ob.ice- tion seems to Ix' obviated l)_v pcr- niitting the operator to deilutt tho weiplit of impurities contained in tlie car and not discoverable until after the car has been weijjhed. Woodson V. State, (5!) .\rk. 521, Go S. W. 41!."). Tiie same hy a commiHsion is not neces- sarily unrc;is(iiiablp, because at a similar riilr fur all frciglil llir company would not be able to pay (iprTafing expenses, as long as the existing rates on other merchandise earn large j)rofits for the company. Minneapcdis & St. T.. R. Co. v. Minncsf.ta. IHO U. S. 257. Then' is nnddubtedly inequality in such a raflP, but it constitutes a grievance of the class of shippers paying iiigher charges, and not of the railroad com[>any, and there is no rniiHlitvlioiiiil priiniple rcfiuiring publie service com]>anie8 to serve all its jiatrons on equal terms. It is believed that a publie service com- pany cannot be required to render services (other than such as are in- cidental to other services) on terms which mean a positive loss to the company, not even though it may recoup that loss on other services; but the legislature may take the fact into consideration that in view of the inevitable operating expenses of tiie business taken as a whole certain services can be r/^n:' § 395. Particular arrang-ements not within the common law duty of equal service. — As has been seeu before,' ' lli<- etMu- mon carrier or inniveeper at common law was under oblitja- tion to render services only to the extent of his available ac- commodation, which was left to his discretion. The modern public service company enjoying special powers and privileges acts under a franchise which determines the scope of its serv- ice, and thereby the extent and measure of its duty, beyond which it need not go, so that e. g. a railroad company cannot be compelled to construct a line between different points than those contemplated by its charter.^ ^ Within the scope defined by the charter the business must be provided with facilities adequate to render the service offered to the public and which may be expected to be called for under ordinary conditions, though not sufficient to cope with an unusual pressure or emergency •,^*^ but the determination of the plan and manner of equipment, the location of depots, the arrangement of time schedules, etc., so as to adjust the service to a reasonable pub- lic demand without sacrificing the right to profits, is a prob- lem of such difficulty that it is primarily and sometimes ab- solutely committed to the judgment of the board of directors. Thus while in a few cases courts have held that the establish- ment of stations and the operation of trains may be compelled by mandamus,!" ^s a rule this remedy is withheld on the ground that the charter confers an authority without im- posing a duty or that in the nature of things such a duty requires the exercise of discretion and is not merely minis- terial.i-^ The Supreme Court of the United States has inti- mated that the abuse of such discretion is more appropriately dealt with by the legislature or by administrative boartls, than 801, states that he was as- i (}. I'.. Div. 586, 1881. As to Ameri- goorls at warehonses, see Chicago & I an li-giHlali.Mi, which has few spe- N. \V. |{. Co. v. People, 56 Til. 365. j; ;](j(; SPKtIAL ACCOMMODATION' Ol; m,i; \ li i-,.^. 41;^ companies which likewise must be matter of sp<'(;ial con- tract ;23 and to arrangements between telegraph ami li-ji-phone companies regarding transmission of messages.-' In the Express Cases the Supreme Court points out that ''as the things carried are to be kept in the personal custody of the messenger or other employee of the express company, it is important that a certain amount of car space should be specially set apart for the business, and that this should, as far as practicable, be put in the exclusive possession of the expressman in charge. As the business to be done is "ex- press," it implies access to the train for loading at the latest, and for unloading at the earliest convenient moment. .Ml this is entirely inconsistent with the idea of an express ])usiness on passenger trains free to all express carriers." While in similar eases some state courts have arrived at different con- clusions, it did not appear in these cases that the express com- panies which had been refused accommodation, had claimed special privileges of the character indicated.^^ § 396. Cab and other privileges granted by railroad com- panies. — It is a somewhat different (piestion whether railroad companies are iTnder obligation to aff'ord in their depot grounds equal access and accommodation to all owners of cabs or omnibuses desiring to solicit the patronage of arriving i)as- sengers ; for in this case no special contracts are required, but mere sufferance on the part of the railroad company. The courts are divided on this question, the validity of the grant of an exclusive privilege for that purpose being affirmed in New York,26 Massachusetts,-' Rhode Island,2s Connecticut,-" Georgia,3f' and Minnesota ;=^^ and denied in Alabama, ■''- In- 23 Pullman Pal. Car Co. v. Mis- -'• Brown v. New York Cent. Ac souri Pac. E. Co., 115 U. S. 587. H. E. E. Co., 75 Hun 355. 24 People V. Western Union Tel. -~ Old Colony E. Co. v. Tripp, Co., 166 111. 15, 46 N. E. 731; Peo- 147 Mass. 35; Boston & A. U. Co. pie ex rel. Postal Tel. Co. v. Hudson v. Brown. 177 :Mass. 65, 52 L. E. \. Eiver Telephone Co., 19 Abb. N. C. 418. 466. 28Griswoid v. Webb. Iti U. I. t;4!>. 25Sanford v. Catawassa, etc., E. 29 New York, N, H. & II. E. Co. Co., 24 Pa. St. 378; New England v. Scovill, 71 Conn. 136. Express Co. v. IMaine C. E. E. Co.. "'Kates v. Atlanta Baggage Cal. 57 Me. 188; McDuffee v. Portland. Co., 107 Ga. 636, 46 L. E. A. 431. &c., E. E. Co., 52 N. H. 430 ; Pick- •''i Godbout v. St. Paul Union ford V. Grand Junction E. Co., 10 Depot E. Co., 79 Minn. 1S8, 47 L M. & W. 399. E. A. 532. 414 BUSINESS AFFECTED WITH PUBLIC INTEREST. § 397 diana,^^ Kentuckj',^"' Micbigau,^^ Missouri,-"^ and Mon- tana.^' The argument against the validity of the privilege is that, since depot grounds may be acquired by eminent domain, and are, in any event, an essential appurtenance to the rail- road business, they are, like the latter, affected with a public interest, and that therefore their use may not be restricted by a monopoly. On the other hand, it is argued that limitations of space, and the requirement of orderly and efficient service, demand some restriction and discrimination, and that llio rail- road company performs its duty to the public, if it provitles for their accommodation by reasonable regulations. It is plain that in some matters the grant of exclusive privileges is inevitable, so in the grant of restaurant or news-stand privi- leges. ■''^ § 397. Legislative requirements."''' — But the denial of a conniion law obligation is not eciuivalent to the assertion of a constitutional innnunity. It is within the power of the legis- lature to require that adequate accommodation be furnished by a business affected with a public interest for the satisfaction of tlic public needs, and that, if necessary, special arrangements be entered into with that purpose in view. "The regulation nf iiuitters of this kind is legislative in its character, not ju- dicial. To what extent it nmst come, if it come at all, from Congress, and to what extent it may come from the states, are (juestions we do not undertake to decide; l)ut that it must come, when it does come, from the source of legislative power, we do not (loubl. Tlic Icgislatiii-i' may impost^ a duty, and when iiuj)ose(l, it will, if necessary, he enforced l)y the courts; but. unless ;i du1\- li;is been crcjilfil rilln'i- by usage, oi" by con- tract, d •'- UiiidHcy V. Anniston, \"\ AIij. ■■'• < 'ijivciis v. Hodfrcrs, 101 Mo. 257, L'7 L. H. A. 130. L'I7. •■"« rii3 ln\s, rM). ■'•• K,'il(im;izno Hni-k Co. v. SooIh '" iOx|)rosH Cjibch, 117 U. S. 1. ma, N4 Mi«li. I'll. ^1597 KEQUIKEMEXT OF ( UX.XHCTI .\( ; HUSlMvSS. 4^5 to others, subject to the condition that the duplication ul' th.- service impose no unreasonabh' burden ui)on the business. This power is exercised especially by requiring railroads to do connecting business with each other, or to allow connections between tracks.^ 1 Where one common carrier is forced to eiitn- into special relations w\th another for the accommodation .il" the latter, the intended ultimate beneficiary is the publie, and the public benefit alone furnishes the justification for the re- quirement. It has therefore been held that a railroad com- pany cannot be compelled to surrender its property to allow the erection of a private elevator, since that would be taking of private property for private use.^s The requirement must also keep substantially within the scope of the business upon which it is imposed. Thus a railroad company cannot be com- pelled to construct a line between different points than those contemplated by the charter.'*-'' A somewhat narrow view of the legislative power in this re- spect is taken in Massachusetts. A statute of that state refpiired railroad companies to issue mileage tickets and to receive those issued by other companies or parts of such tickets in payment of their fares, subject to the conditions of the issuing com- pany. The requirement was held to be unconstitutional upon the ground, among others, that to compel a railroad company 41 Fitchburg E. Co. v. Grand the party rendering the service. Junction E. Co., 4 Allen 198; State Thus in Minnesota a statute was V. Noyes, 47 Me. 189, denying power passed prohibiting any one from as inconsistent with charter rights, carrying on the warehousing busi- criticised in Boston & M. E. E. Co. ness who was not specially licensed V. County Conimrs., 79 i\Ie. 386. therefor, and requiring transporta- The obligation to allow physical tion companies to deliver all un- connection does not involve the duty claimed goods after twenty day.s to to enter into arrangements for con- a licensed warehouseman. This was necting business. Atchison, T. & St. held to be an unconstitutional re- Fe E. Co. V. Denver & N. O. Co., 110 quirement, since it conferreil ap- U. S. 667. Principle of such require- parcntly no benefit upon any one nients sustained in Wisconsin, etc., but the licensed warehouseman K. Co. V. Jacobson, 179 U. S. 287. whose business might be thereby in- 42 Missouri Pae. E. Co. v. Ne- cheased. State v. Chicago, M. & St. braska, 164 U. S. 403. Nor can the P. E. Co., 68 Minn. 3S1, 38 L. B. A. power to require services be used 672. See, also, Garton v. B. & E. for the purpose of forcing upon the E. Co., 6 C. B. (N. S.), 639, 1859. public accommodations which they 43 Zabriskie v. TIackensack, &i'., do not want, and for which they E. Co., 18 N. J. Eq. 17S, 00 Am. IVc. would have to pay, to the profit of 617. 410 liU.-^lNE^b AI-TEl'TEL» with public interest. ^ 398 to carry passengers on the credit of another company, receiv- ing in return merely a cause of action against the other com- pany without providing for redemption funds or giving liens on tangible property, was taking property for jjublic use without making provision for compensation.^-' Two of the justices dissented upon the ground that the chance of loss was infinitesimal, and that any risk arising from insolvency or abuse in the issue of mileage tickets could be provided against by the power given to the railroad commissioners to exempt or exclude railroads from the operation of the act. The dissent- ing opinion makes a strong plea for the doctrine that the con- stitutionality of a statute should be judged by actual conditions and practically certain results, and not l)y remote theoretical or speculative possibilities. ^ 398. Public convenience not ordinarily a ground of police control. — The ^Supreme Court of the United States, in dis- cussing the nature of the power to impose requirements of the class here discussed^"' recognises distinctly that it has no ref- erence to health, morals or safety, but simply to public con- venience ; but while questioning the propriety of ranging it under the police power, it seems inclined to regard it as a general governmental object to provide for the public con- venience by compulsory measures. The nature of the require- ment seems to iii.iik' it clearly as an exercise of the police power; but it would be unwarranted to conclude that this power can always be set in motion, simply to subserve the convenience of Ihe public. It Avonld be a novel doctrine to assert that the state could pi'escfihr what kinds of goods a dry goods mer- chant shall keep, how many salesmen lie shall enijiloy, how ihe goods shall be exhihiled 1o hiiyers, or how long his store shall lie ki-ji1 open. TIm' |iiil)lic iiiletvst ol" cotivciiicnce is not as urgent as that of lirallli or safety, and hence does not Jiistiry similar inti'T-rci-rticr willi pfivale rights. Whei-c the |iiil>lic determines standard and qnality of service, it assumes a func- tion which })rope?'ly falls within the disrovi(led. This is the theory on wliicji ai-tiial «»Atti.rnoy ficiuT.-iI v. ()|.| ('(.l.iny "•• l<.il kiii'Is of liusiness a savings bank may do. and the securities in wliicli it may invest its funds.^'^ The regulation of the business of insurance is of more recent date than that of banks. The Revised Statutes of Xew York of 1828 contain only a few provisions in restraint of foreign in- surance companies. There is, however, a very large amount of spt'cial legislation for the organisation of insui-auce com- panies, and llii'ou-li this system of special acts the legislature had it ill its i)ower to impose such conditions upon the business as it chose. TIp' first general legislation for the organisation ul" iiiarinf. fire, and lift^ insurance companies was enacted in New York in lS4:i. Al pi-csent most states have elal)orate statutes n-LTuhiting the various lfcls lliosr imposed on hanking. 'I'liere must l)e a pennil to oi-giinisi- and a uiiniinum amount of c'lpital; tliei'e is lull provision Tor repor-ts, |>ul)lishe(| state- ments. ;iiid examinations. Tlie ;imouiil id' indi\idual I'isks in |)ropoi-tion to tlie ejipital is limited-, the m;iiinei' cd" invest- ment of e;ipital is prescribed; capil;il imp;iired must he made g<»od, or it" losses exceed ;i certain amount, no new Inisiness 41' New V..rk P.:irikini: I,:nv Cell, .'i? of deii'l L:iws) §§ 1'.'"), Ilfi, 122, ^ 4U0 BANKLXf! AND IXSURAN'CE. 41«j may be done; some kinds of companies are re(inir<'(l lo ki-cji a reserve or emergency fund; and foreign insurance companies must generally deposit securities; it is provided inidci what conditions dividends may be declared; and with regard to Hr»* insurance, a standard form of insurance is sometimes pre- scribed, ete.i $400. Grounds of control.— When we examine the nature of the restrictions on the ))usiness of banking and insurance, we find that they nearly all aim at the same object: the pro- tection of depositors and insured from losses resulting from insolvency of the bank or insurance company. This loss is to be averted by insisting upon some guaranty of financial stability. Provisions of this character are not absolutely con- fined to banking and insurance ; in some states railroad or other public service corporations nmy not issue securities without complying with prescribed conditions, or without the consent of designated authorities;- and the power of corpora- tions to borrow may be generally limited. -"^ But in the case of banking and insurance they are not necessarily confined to corporations, and ])y far exceed the financial regulations im- posed upon any other kind of business. While all the pro- visions furnish protection against fraud, they do not pretend to be limited to guarding against that danger, but plainly seek to prevent mere improvidence or inadequacy of re- sources. The justification for this must be found in the peculiar na- ture of the business regulated; both banks and in.suranee com- panies deal in their own credit, while they receive cash; and, in addition, banks and life insurance companies are the de- l)Ositaries of a large proportion of the savings of the people. so that the management of each institution affects a consid- erable part of the public. These conditions create a special public danger, requiring a more incisive exercise of the police power than is called for in an ordinary business. These con- siderations do not explain some provisions regarding fire in- surance that have nothing to do with the solvency of the com- pany; as w^here a standard form of policy is jirescribed. or 1 New York General Laws, 1S92, - Massachusetts Rt>v. Laws. .-h. ch. 38, § 9, 12, 16, 24, 39, 41, 120, 109, §§ 24, 25, 26. 205. •'5 New York Stock Corporation Law, § 2. 420 BUSINESS AFFECTED WITH PUBLIC INTEREST. § 401 certain stipulations in a policy are declared void. But the contract of insurance, regarded as an individual transaction, is of the nature of a wagering contract ; it becomes a legitimate business only, where it is undertaken on a large scale by or- ganised capital, or by organised associations; then, however, the conditions of the contract are virtually imposed by the insurer, and it is illusory to speak of a liberty of contract. Reasonable regulations for the purpose of producing equitable rights and obligations between the parties have therefore been upheld l)y the courts.^ ^ 401. Restriction of right to carry on business.— Banking and insurance being peculiarly affected with a public inter- est, it follows that the right to carry on either business may be made to depend upon the compliance with certain condi- tions; and a license may be required as evidence of compli- ance. In New York, in the case of savings banks and trust companies, the authorisation is only given upon ascertaining that the general fitness of the organisers for the discharge of the duties appertaining to the trust is such as to command the confidence of the conmniiiity. and that the public convenience and advantage will be promoted by such establishment.^ This requirement has not yet been passed upon by the courts, but an analogous jirovision making the construction of a rail- rf)a(l dependent upon an administrative determination that public convenience and necessity require it, has been upheld.'^ The requirement of fitness cannot be regarded as prohibitive; hilt llir jtrovision as to public convenience would seem to tend toward the monopolising of the business. Ill ;i less extreme form, the latter objection might be urged against statutes which confine the business of li;iiiking or in- surance to corporations. In Pennsylvania, such a restriction was held to be constitulional with regard to insurance." The state riiMV iiuleed i-equii'c e<)i|»(»riite organisiit ion of associa- tions of jtiTsoiis engaged in ii, business which is subject to sp<'cial control, as a method of exercising such control. But as long as corporate organisation is limited to associations « Orient IriHiirancp Co. v. DaggH, Bi);iril of TJailrnad f'oininissioiinrs, 172 U. H. r,.->7. Sr.<- 5 714, infra. KiO N. Y. 'JO'J. r^\ N. K. (197. 6 Now Yorlt Baiikiny I/aw, § \'K\, " Coiniiioiiwo.-iltli \. Vrooman, 164 1153. I'll. :i<»6, -H 1'. H. A. 250. •"• Railroafl Law, § 5!); People v. § 401 BANK IXC A M ) 1 .\ SU KA.\(JL'. 421 of persons, it is clear that this re(iuiri'mi-iil must liavi- tin- effect of excluding from the business any individual aetin{^ by himself, and is to that extent prohibitive. This fact was recognised in two cases arising under statutes of North Da- kota and South Dakota, restricting the business of banking t«» corporations. The Supreme Court of North Dakota uphehl the laAv, because private banking might be prohibited alto- gether.'^ The South Dakota court ludd that the statute could not prohibit any citizen from entering upon any business not injurious to the community, though affected by a public in- terest, and was therefore unconstitutional." New York regulates this matter so as to obviate this question by allowing the organisation of a bank l)y an "individual banker," subject in all respects to the provisions of the Bank- ing Law.^" The law also recognises the "private banker," who may carry on his business without license and without supervision, but Avho is forbidden to use for his business any artificial or corporate name or any words indicating that liis business is a bank.^^ 8 State ex rel. Goodsill v. Wood- lo The original Banking Act had mansee, 1 N. D. 246, 11 L. E. A. not applied to individual bankers 420. acting alone. Bristol v. Barker, 14 9 State V. Scougal, 3 S. D. 55, 15 Johns. 205. L. E. A. 477. " Banking Law, § 2, 92. CHAPTER XIX. QUALIFIED PROPERTY. § 402. In general.— In the case of a business affected with a public interest it is the act of the owner which by devoting certain property to the public service creates that interest. There are other cases in which property rights are mod- ified irrespective of the act of the owner, by superior public rights or easements, or by the interdependence of several properties upon each other; These may be designated as cases of qualified property. The restric- tions generally exist by common law, but the legislature sometimes defines them and sometimes adds to them, and questions of the law of property then become mingk'd with questions of constitutional power. NAVIGABLE WATEES AND RIPARIAN RIGITTS. §§ 403-409. 5> 403. Title and easement of navigation.— In the law of navigable waters and their shores or banks, property rights are (lualified by public easements existing chiefly in the in- terest of navigation. The treatment of this very important branch of the law of property does not fall within the scope of a treatise on the police power, and will be very briefly dealt with only for the purpose of discussing some constitutional (juestions that have arisen regarding the extent of public power over rii)arian rights. The rights of the public ai-e fully rei)- resented by the federal government wh<»re interests of inter- state or foreign commerce are concerned, it lias Ixm-ii lield that a reservation in ;i water grant in favor of llie stale enures 1(1 thi' lieiielit ul' I lie (Tnited States.' The title of the ri]);ii-iaii ownei- may extend 1o high of low water mark or to the thread of the stream. Title to high water mark is the rule in the case of tidal waters and the (Jreat Lakes, unless ;iltered hy special grants; in the ease ol' non- tidal navigable livers the rule varies in diffei-eiit states, and the- I'ni1<'d States recognises in each slate the rule adopted 1 Unilf.l StiitcH V. Moline, 82 Fcl. 592. 42'J iv 404 NAVIGABLE WATERS. 42;} by that state, even for grants made of lauds belonging io lln- public domain. 2 It will be convenient to treat, first, of the land covered by water and of improvements there constructed ; second, of the easements of the rii)arian owner; and third, of tin- riparian land. § 404. The land covered by water.— The title to this may be in the riparian owner under the common l;iw i-ule regard- ing non-tidal waters as recognised in a number of states. This title, in the case of navigable waters, is subject to the public easement of navigation which is co-extensive with the publie needs. "Whatever the nature of the interest of a riparian owner in the submerged lands in front of his upland bor- dering on a public navigable river, his title is not as full and complete as his title to fast land which has no direct con- nection with the navigation of such water. It is a qualified title, a bare technical title, not at his absolute disposal, as is his upland, but to be held at all times subordinate to such use of the submerged lands and of the waters flowing over them as may be consistent with, or demanded by, the public right of navigation."-'' The right of the state or of the United States to establish harbor lines, or erect light-houses, is there- fore probably the same whether the title to the bed of the stream is in the riparian owner or in the state, these being in aid of navigation ; but where the bed of the stream is pri- vately owned, the owner has been held to be entitled to com- pensation where bridge piers are placed upon submerged lands.'* Since the public right of navigation ((ualilies the riparian owner's rights to a considerable extent, he is entitled to compensation where a non-navigable stream is made navigable.^ ••iShively v. Bowlby, 152 U. S. 1. 54 N. E. 428; Hawkins' Point Light See, however, Hardin v. Jordan, 140 House case, 39 Fed, Rep. 77; Eisen- U, S. 371. bach v. Hatfield, 2 Wash. 236. See sSeranton v. Wheeler, 179 U. S. also Jauesville v. Carpenter, 77 Wis. 141, 163. In Wisconsin the title is 288, 46 N. W. 128, 20 Am. St. Roi>. held to be subject to all kinds of 123, a case of special legislation con- public uses, including the public demned as arbitrary and unerpial and right to fish. Willow River Club v. as a legislative ad.juilication of :i Wade, 100 Wis. 86, 42 L. R. A. 305. nuisance. 4Ballance v. Peoria, 180 111. 29, 5 Morgan v. King, 35 N. Y. 451. 424 QUALIFIED PEOPEETY. § 405 § 405. Special grants— Commonwealth v. Alger.— The title to submerged lauds may be iu the ripariau owuer under special grants and therefore affected by the power under which such grant was made and by its terms. A colonial ordinance of Massachusetts of 1G41 had given the riparian proprietors on certain navigable waters the property to low water mark, provided they did not hinder the passage of boats and other vessels. An Act of the Legislature of 1837 established harbor lines along the shores of one of these waters beyond which any kind of building was forbidden. This line was drawn above low water mark. Defendants erected a wharf, part of which was, subsequent to the passage of the act of 1837, extended beyond this line but remaining above low water mark and without making any hindrance or injur}' to naviga- tion. In an action brought against them the constitutionality of the act Avas maintained and the wharf declared to be an unlawful erection.*^ The court held that all grants of water hunl are impliedly subject to restraints for public use, and that wherever private property is thus qualified by pub- lic interest, the legislature may prescribe a precise i)ractical rule, and that it must be relied upon to save private property rights as much as possible. That the wharf created no actual impediment to navigation was held to be no defense, since it was impracticable to leave the decision of this question to each individual case. The court (i'c;i1('(| the proviso in llie grant "that such pro- prietor shall not by this lil)ci-t\- have power to stop or hinder tlir i»assage ol' bojits oi' otlni- vessels, iu oi- tiu-ough any sea, creeks, or coves, to ollnr men's houses or lands," as reserv- ing to till' |)uMic ;ill ri'jlits incident to the easement ol' naviga- tion, as tiiesc I'ights li;i\e lieeu rMTcised in lOniilaud under the Itoyal I'rei'ogalive.' A Tnll ai-eouut nl' the I'elation between pi'ivate and public iMglit in li.i ibm-s is given in Ilnle's Trea- tise de I'ortil)Us Maris, hut nutliing is said alioul the estab- lishment ol" dejinite hai'bnr liui's. The |inl)lie right is said to consisl in tbe jtreservat ion of the li.iriior I'rom nuisances, one form of nuisance being "the st rMi-jidenin!^ (d' the port by bnildiuL' loo f.ir into the w.'der, when' ships or v<'ssels might '■■ riiniiii(»ii\V(.';illli \, .MgiT, 7 <'iisii. W'pston v. ft:im|(snii, s ('nsli. 'M7 ; .-.3, 1H51. P.-nkard v. Hydcr, 114 Mass. 440. ■ hwlnilin^,' tlic iij,'lit te lake fisli. §406 HARBOK LINKS. 40- havo formerly ridden; for it is to be observed, llial nuisance or no nuisance in such case is a question of fact."* As tlic title below high water mark was usually in the Kin^, anil as the King had to license every public wharf, the cstiiblish- me.nt of a line below w^hich wharves should not be extendi 1 would have met with no legal difficulty in England. In th<- Massachusetts case the fact that the title was in tin- riparian proprietor, and that his erection was admittedly not a nuisiinec, presented a novel question. In support of its ruling, th<' court relied partly upon the easement of navigation, and partly upon the general police power upon the operation of which the court enlarged at some length. As this was one of the first judicial discussions of the police power, the east- is generally treated as one of the leading cases upon the sub- ject, but the definition of the police power {''sic utcrr tno ut alienum, non laedas,^^^ etc.) is very vague, and its application to the case in hand, if we leave out of consideration the ease- ment of navigation, is based upon no intelligible prineiple. The proposition that property rights must be exercised in subordination to the public welfare is a commonplace unless the conditions of such subordination are defined. If the court in this case found any justification for the exercise of the police power, beside the public right of navigation, it failecl to point out with clearness such additional ground. § 406. Establishment of harbor lines— Effect on existing W^harves.— In two re^i)ects, however, the eourt applies impor- tant principles of the police poAver. It recognises in the first place the fact that police regulations need not confine tiiem- selves to a restraint of actual evil or mischief, but may within reasonable limits establish definite lines which in a certain sense must be arbitrary, so as to leave a margin of safety and cut off controversies in each case as to whether luiisanee or no nuisance.io But it does not yet recognise that in its judg- ment as to what is reasonable the legislature is eontrollable by the courts. The second important point is the distinction between the prospective and retroactive operation of the regulation. Oidy that part of the erection was condemned which was made sub- sequent to the restraining act. With regard to a wall jire- 8 Hargrave's Law Tracts, p. 85. ^" See §§ 28, 29, supni. 9 As to this phrase see 9 Harvard Law Review, p. 14-17. 42b QUALII^IED PROPEKTY. § 407 viously built it was held that the aet could have no effect if it was not a nuisance in fact. Where some improvement has been constructed beloAv high water mark hy private per- sons or corporations under statutory authority, they cannot be deprived of it for the benefit of public navigation without compensation.^' This principle was recognised in New York in favor of valuable dock rights, where water grants had been made by the state with covenants for the enjoyment of Avharfage.'- Where in condemning an erection made under statutory authority compensation has been refused it will be foimd that there existed some reservation, express or implied, in favor of the public right.' •■ But some courts recognise a right to compensation also in cases Avhere the improvement was constructed merely under license, and the United States Supreme Court has taken the same position as against a municipal ordinance declaring such an erection to be a nuisance.'^ J; 407. Obstructions under Act of Sept. 19, 1890. — The fed- eral act of Sepleml)er 19, 1(S9(). recjuii-cs affirmative authority of law for any obstruction, not erected for business i)urp()ses, created prior to the passage of the act, and the consent of the Secretary of War for any work obstructing navigation ill a iiavigaldc A\'a1t'r ol' 1lic riiitcd States to be (^stablislicd after said date.''' The ad of .Mai-cli :], 1899, r.M|iiii-("s the affirmative authority of Congress for the erection of any obstruction to the navigable (•ai)a('ity of , any of llic navigable waters of the I'nited States.'" 'I'liese acts also authorise the Secretary of W;n- to direct the alteration of any bridgi' which he lias rejisuii lo l»elieve is an unreiisoiKihle ohstniction to the fret- navigation of an.\' such naviiiable water, without iiuiking j)rovision for compensation. The (|ues1ion M'hether this legis- lation is constitutional as to Inidges previously constructed II SfP on I his Hiil).ic(l 8§ r)73-r)7H, M(l. L>58. Peoi.lo ex rcl. City nf Chi- irifra. cufjo v. Wost CliicMco St. H. Co., 203 !-• Ljin>{■., Mri.JKe Co.. v. Wall. 407. Knitcfl Htatfs, lO.") U, a. 470; United 'f- Uniiod States v. l{ellin-,rli:ini States V. Moline, M'J Ked. Hep. .WJ ; Hay Moom Co.. 170 U. S. L'll. ClasHeii V. Chesapeake (iiiaiio Co.. HI i"|l Siippl. Ucv. St;i1. [i. ODfi. 408 RIPARIAN EASEMENTS. ■i-2: by authority of law has so far been left uiidccidcd \,\ th.. Supreme Court/' but should, it seems, be decided in lavur of the right to compensation.' •** It has also been held that water grants l)y tiie stat.- an- impliedly subject to the right of the legislature to dirrct fish- ways to be built to allow the passage of fish from one part of the stream to another.'" S 408. The easements of the riparian owner. — 'rh.- relation of the riparian easements or advantages with respect t<» navigable waters, to the rights of the public in the same, pre- sents questions upon which there is some difference of opinion. If we r'egard the position of the riparian owner as analogous to that of an owner of property abutting upon a pul)lic high- way,2<^' there is undoubtedly a strong equity in favor of an easement which would at least preserve to liiui tin- nalui-.il advantages of his location ; that is to say, the right of access to the river and the right to have the river contiiuie to flow by his land. It was held in an earlier case in New York^i that an owner of lands on the Hudson River who had no property on the shore between high and low water mark Avas not en- titled to compensation from a railroad company which in pur- suance of a grant from the legislature constructed a railroad along the shore below high water mark so as to cut off all communications between the land and the river otherwise tlian across the railroad. A doctrine similarly adverse to riparian 17 Eider v. United States, 178 U. Pennsylvania, however, this is re- S. 251, 1900. garded as an exercise of the power 18 The Act of March 3, 1899, of eminent domain. Commonwealth seems to leave the question of com- v. Pennsylvania Canal Co., (Hi Pa. pensation deliberately in abeyance 41, 5 Am. Rep. 329; and in Massa- for settlement by the Supreme chusetts it is held that whore in Court, for the removal of obstruc- compliance with a charter a fishway tions from sunken raft is directed is maintained, different fislnvays t-an- expressly without liability for dam- not be required, Commonwealth v. ages. Compare § 18 and § 19 of Essex Co., 13 Gray 239. Act. -" The easements of the owner of 19 Commissioners on Inland Fish- land abutting on a higliway, how- eries v. Holyoke Water Power Co., ever, rest very commonly upon 104 Mass. 446; Holyoke Water qualifications of the original act of Power Co. v. Lyman, 15 Wall 500; dedication or condemnation, wliich Parker v. People, 111 111. 581 ; State are not applicable to tlu- n:.tnr:.l \. Beardsley, 108 la. 396, 79 N. W. highway of a river. 138; State ex rel. Remley v. Meek, 21 Gould v. Hudson River R. Co.. 112 la. 338, 51 L. R. A. 414. In 6 N. Y. 522. 428 QUALIFIED PKOPEKTY. § 408 rights has been put forward in New Jersey.-- After the de- cisions in the elevated railroad eases had recognised abutters' easements as constitutional rights in New York, the Gould case was overruled as inconsistent with the doctrine established in those cases.23 An owner has therefore been held to be entitled to compensation where an embankment or driveway is con- structed along the bank of a river in front of his land depriv- ing him of access and riparian advantages.-^ The same doc- trine has been recognised in England.--'' But it is held in New York that easements of access and other water rights are subordinate to the public right of navigation, and to everything incidental to it, and that there- fore a riparian owner is not entitled to compensation where his right of access is cut off by a public improvement under- taken for the benefit of navigation.^c The same principle is recognised by the Supreme Court of the United States. There- fore where the United States built a dike on the Ohio River for the improvement of its navigation, a riparian owner who thereby lost valuMl)le landing facilities was not entitled to compensation.-' This principle was reaffirmed in Scranton v. Wheeler.28 "If the riparian owner cannot enjoy access to navigability because of the improvement of navigation l)y the construction away from the shore line of works in a pu])li(^ navigable river or water, and if such right of access ceases alone for that reason to be of value, there is not, within the meaning oi" llic Constitution, a taking of private property for ])ublic use, but only a consequential injury to a right whicli iiiust be enjoyed as was said in the Yates case, 'in due sul)jec- tion to the rights of llic ])ubli('' — an injury resulting inci- dentally from lilt' ('X('i'cis(! dI' govcniiiiciitnl powci- i'or the hi'iit'lit of the general ])ubli(', and from wliicii no duty ai-ises to in:ik-e oi' secure compensation to tin' riparian owner. The -- Stcvc'im V. Patcisoii & Newark -" Sage v. Mayor of New York, R. Co., 34 N. J. T.. r,:V2. I't N. Y. (il, 47 N. E. 100(5, 3S L. *•' HiuiiHry V. New York & N. \'.. I». A. ti(l(i. Ho as to (lo.siniclion of |{. Co., i:i:5 X. Y. 7i), .30 N. Vj. 651. w.ilci- power, Canal A|)prai.sors v. So, uIho, Dclaplaine V. Cliicago & N. People, 17 Weiid. r)71 ; People v. \V. K. <■()., 41! WiH. 'J14. ('.■iiKiI Apiiraisers, X] N. Y. 401. 24 III re City of New ^'ork, l'">x ■-' (iiliHon v. TTnited States, l(i6 N. Y. 134, 01 X. E. ms. V. S. 209. '.•r-Duke of Hii.-flcii. 418. § -iUS RIPAKiA.X EASli.MEXTS. 429 riparian owner acquired the ri^'ht of access to navi^iahility subject to the contingency that such ri^Mit inijrht hceoine valueless in consequence of the erection, under coiiiix'tcut au- thority, of structures on the submerj^'ed lands in front of his property for the purpose of improving navigation." Where the public right of navigation is surrendered by legislative authority either in favor of the use of the water for another purpose, or in favor of another work of public improvement (especially in favor of a ])ridge), there is author- ity for holding that the loss to ripai-iau owners, though more sensible to them than to the public at large, does not constitute a special legal injury; but the question does not appear to have been fully considered in its analogy to abutters' rights in case of vacation of a street, nor in connection with the provision of manj^ constitutions that private property shall not be damaged for public use.^'' AVliere Avaters are lield in private ownership subject to the public easement of navigation, they cannot be diverted for other public purposes, e. g. for municipal water works, without compensation.-'" But such diversion has been held legitimate where the water is owned by the state in trust for public uses, so that mill owners whose water supply is impaired, are left without remedy.-"*^ There would, how^ever, be great reason for holding that public, as well as private, ownership is subject to the right of the lower riparian proprietor to a practically unimpaired flow of wati*r by his land. Statements may be found in some cases to the effect that the riparian owner as such (i. e. without title to land under water) has a right to erect wharves provided he does not interfere with navigation, 32 but the more correct doctrine is that the riparian owner has merely a passive or im])lied license re- vocable before execution, which can ripen into a right only 29 See Blackwell v. Old Colony K. of Water Commissioners, ;")(! .Minn. Co., 122 Mass. 1; Frost v. Wash- 4S5; Watuppa Reservoir Co. v. Fall ington Co. E. Co., 96 Me. 7(5; River, 147 Mass. 548; see, however, Lansing v. Smith, 8 Cow. 146; Bell same case 154 :\rass. 305. V. Quebec, L. R. 5 App. C. 84. 3-' Button v. Strong, 1 Black. 23; :''0 Smith v. Rochester, 92 N. Y. Mather v. Chapman, 40 Conn. 3S2 ; 463. They cannot be diverted at all City of Madison v. Mayers, 97 Wis. for private speculative purposes. 309; Grant v. Davenport, IS la. 1*79, Priewe v. Wisconsin State Land & 192; assumed without discussion in Jmpl. Co., 93 Wis. 534, 33 L. R. A. Illinois C. R. Co. v. Illiuois, 146 U. 645. S. 387, 464. 31 Minneapolis Mill Co. v. Board 430 QUALIFIED PKOPEETV. § 409 by statutory recognition.'''^ Nor has the riparian owner a right to phice booms in irout of his land for the purpose of floating kigs. Such right may be given to a quasi-public corporation acting for the benefit of all Avho may have occasion to use the stream for that purpose, although the OAvner may be thereby excluded from direct access to the water, such improvement being in aid of the navigation of the stream.^^ ^ 409. Riparian land.— It has been held in some cases that where, in conseciuence of a river improvciiiciit for the purposes of navigation, the current of the stream is changed and grad- ually undermines and washes away the land of a I'ipaiian owner, that this is damnum absque injuria, and that com- pensation is therefore not due.^-"* Probably the same is true where through the raising of the level of the river the riparian owner loses facilities for drainage.'"' But where water is cast upon riparian land, flooding it and rendering it useless for agricultural jjurposes, there is a taking of property which can- not be constitutionally authorised without compensation.''' .\n interference with a rii)arian upland ina\- also be riMpiired for protection from flood and inundation. Is such upland subject to an easement in that behalf so that the owner nnist yield to the public requirements without compensation .' The Supi'i'inc Coui't of Massachusetts in Commonwealth v. 'P('wls.r>- liur.\- ■"' iii'ld llial tlic legislature to protect the harl)or of Uostoa might prohibit the owners of any beach in the town of Chelsea, from removing stones, gravel and sand from such beach, and the same coufl. (•(uhummiI ing u|)on tliat case in the later case of ( 'onimonwca 11 li \. .\ lucf''''' said: "That when land is so sit- •••:! StevciiM \. I'iitorsoii ami New- 73S, ll' T^. 1\. A. (i?)?, .ind st>o dis- ark K. Cn., 34 N. .1. Law .l.'VJ ; Cdhii scnliiijj oi>iiU(>ii in United States v. V. WauHiiw Koom Co., 47 Wis. :U ! ; L.viinli. 1S8 U. S. 445. Kevell V. i'mpl.-, 177 III. Kis. See ••" (Irand Ra])i; Arini 1 \-. (Ircen lion, :JJ Minn. 411i; Craml Hapid.H T,a,v, &e., Co., .31 Wis. :{1() ; l'nniit(>IIy Boom Co. V. .JarviH, :W Mich. :i(I.S. v. C.reen Bay, ot.e., Co., i:! Wail. KWi ; «r. HolliHfer V. Union Co., Conn. Unit<"d States v. Tiynali, 1SS U. S. 4:'.(;. IH.'t.H; Creen v. Swift, 47 Cal. 44.'); New \nvk Xavijratinn I-.iw, .').'H>; Urookrt v. (JCMJar Urooks I in / _. Iirr)ve?ncnt f'i>., '■*■' Maine 17, I'.t -•'II Mete. r>r,, IslC, Cilluucd in Atl. S7. I Indies V. I'erin.', L' 1 linn. .'')I(). •'•" MillM V. Uniteil SlatoH. U\ I'.d. -"7 CnsliinK .53. §409 RIPARIAN LAND. j.,j uated that it forms a natural hai-i-ier to i-ivfi-s or tidal wati r courses, the owner cannot justifiably rciiiovc it to sudi an extent as to permit the waters to desert their natural channels and overflow and perhaps inundate fields and villat,'es." lint if in accordance Avith this doctrine the i-iparian owin-i- mav In- prohibited from weakening natural eiiVoankments, it does not follow necessarily, that, as the Massachusetts court intimates, he may be compelled to construct or even repair embankments for the public benefit at his private expense.-*" Such a duty seems to have been imposed upon riparian owners under early Louisiana statutes, '^ but is unknown in other states.-*- In Louisiana it is eertainl^y settled that embankments may be built at j)ublic expense without paying to the riparian pro- prietor compensation for his land which is appropriated for that purpose. The Supreme Court of Louisiana has justified this as an exercise of the police poAver,-*-' but the United States Supreme Court has upheld such appropriation as an exercise of the public easement for making and repairing levees, roads and other common or public works to which by the civil codt^ of that state^^ riparian lands are subject, so that the burden qualifies the right of property ah initio.^^ The peculiar juris- +0 " Take the case of the River declared unconstitutional which un- Mississippi, where large tracts of dertook to make it unlawful for a country with cities and villages de- railroad company to make any open- pend for their protection upon ing in its causeway through which the natural river bank which is tidewater from the meadows beyond private property. Perhaps under might be discharged u[)on a certain such circumstances it might not bo tract of land. Koch v. Delaware, too much to say, not only that the etc., R. Co., 53 X. J. L. 256. owner cannot do any positive act ^'■^ Bass v. The State, 34 La. Ann. towards removing the embankment, 494; Ruch v. New Orleans, 43 La. Imt that he may properly be held Ann. 275; Peart v. Meeker, 45 La. responsible for the permissive waste Ann. 421, 12 Sou. 490; p]gan v. of it by negligence and inatten- Hart, 45 La. Ann. 1358, 14 Sou. 244. tion. " Commonwealth v. Alger, 7 ■«■* Sec. 661. Cush. 53. 45 Eldridge v. Trezevant, 160 U. 41 Act of 1829, cited in Counsel 's vS. 452. At common law the pub- Brief in Eldridge v. Trezevant, 160 lie right of navigation does not U. S. 452. include any right to use the banks 42 An act of Illinois of 1873 for purposes in aid of navigation, which in an indefinite way reeog- Ball v. Herbert. 3 Term Rep. 253; uised the duty of riparian owners Ensminger v. People, 47 111. 284. to maintain dikes in order to pre- In Oregon an easement of necessity vent disastrous floods, was repealed is recognised. Weise v. Smith, 3 in 1899. In New Jersey an act was Ore, 445. 432 QUALIFIED PEOPEKTY. 5; 410 prudence of Louisiana adopted from the French civil code cannot, of course, conclude the same question for other states.^" :mill DA:\r privileges. §§ 410-413. § 410. Legislation.— The leji:islation of a number of states reg:arding: the construction of mill dams presents a peculinr and perhaps anomalous qualification of property rights. A list of these acts and a full discussion of their nature will be found in the case of Head v. Amoskeag ^Manufacturing Co.-*" The legislation of Massachusetts inaugurated one type of this legislation, that of Virginia another.-*^ The statute of ]\Iassa- chusetts-*^ authorises any person to erect and maintain a water mill, and a dam to raise water for working it, upon and across any stream not navigable, provided he does not thereby interfere with another mill already lawfully existing on the same stream. If the dam cause the water to flow back and overflow the lands of other owners on the stream, the statute gives to such owners a right of action for damages, at their option either in gross or by annual compensation. The states following Virginia provide for proceedings pi-ior to the erection of the dam to adjust conflicting interests, and also for llic iiiotection of residences, gardens, etc.'^" Under both systems alike the law expressly sanctions the use of ])roperty whidi involves the invasion of other property, com- pelling the owner ot the iattei- property to accept compensa- tion in lieu (d" other remedies which niight protect or restore his original rights. Since the owner of the flooded land does not sh;ii-e direclly in llie IxMielil ot" the mill, the case hicks that c(ininiuni1\- ol' interest which is characteristic of com- jtulsory drainage.-'''' It is also cleiir th;i1 the (hinuige done the flooih-d hind e;inn<»1 lie regarded ;is consetpicnl i;il merely, i. e. as a loss of benelits incident !(» conditions to the iii;iiiit(Mi;ince or contiinnince of which the ownei- h;id no right : for the Ihrnw- ••" TIh' Fri-ncli l.iw n-cupnisoH a *'• li:< V. S. !t. iiiiinlMT of HcrvitiKli'H (lualifyinn tin- "* Mass. I'rov. T/iws I71IM I. ili. • nvnorHliip of land wliicli rt'HuH 1."); Viij,Miiia Ar\ nf ITSfi. I l' ilcn from itH location, ho in favor of in^'s StatiitcH, |i. IS7. liiyhwavH, railroads, cfmctcriofl, '" Hcv. LawH, < li. I'.KI. iirincral Hprin^H, and jitddic ini|irov('- f'"' (iould Waters § Ii(t7. f)i)een adopted by the I'nitfd States Supreme Court — regard the mill owner's privilege as due simply to the recognition by law of the fact that through the laws of nature the full enjoyment of his watci- riglits re- quires the modifications of the rights of others, it being the object of the statute "to provide for the most usefid ;iiid beneficial occupation and enjoyment of natural streams ami watercourses, where the absolute right of each proprietoi- to use his own land and water privileges, at .his own pleasure, cannot be fully enjoyed, and one must of necessity, in some degree, yield to the other, "^ and the United States Supreme Court speaks of a "just and reasonable exercise of the power of the legislature having regard to the public good in a more general sense, as well as to the rights of the riparian proprie- tors, to regulate the use of the water power of running streams which without some such regulation could not be beneficially used. ' '^ How is this legislative authorisation to one OAvner to invade the property of another to be reconciled with the constitutional security of property rights? That some diificulty exists is not disputed. Chief Justice Shaw in 1851-« said "Whether, if this were an original question this legislation would be considered as trenching too closely upon the great principle which gives security to private rights, it seems now too late to iii(|uire, such legislation having been in full operation in this state a century and a half." And similar doubts have been expressed in otlier states.^ § 412. Taking for public use.— The grant of the right to flood the lands of others is most satisfactorily accounted for as a taking for public use, if the erection of the dam can be 1 Pnmpelly v. Green Bay Co., 13 3 Head v. Amoskeag Manufactur- Wall 166; Carlson v. St. Louis ing Co., 113 U. S. 0. Kiver Dam, etc., Co., 73 Minn. 128, * Murdock v. Stickney, S Ciisli. 41 L. E. A, 371; Trenton Water 113. Power Co. v. Eaff, 36 N. J. L. 335. r. Jordan v. Woodward, 40 Mo. 2Fiske V. Framington Manufac- 317; Fisher v. Horicon Co., 10 Wis. ttiring Co., 12 Pick. 68. 351. 28 434 QUALIFIED PKOPERTl'. < 412 said to constitute a public use. lu a few states this has been denied, and the legishition in consequence been declared un- constitutional,*' while in others the i)ublic use has been con- ceded only for o:rist mills, which must grind for everybody, at legal tolls, but not for manufacturing mills." Vpon a more liberal view, however, the encouragement of manufactures and the development of the natural resources of the state is held to be of sufficient public interest to justify the taking of private property.^ Some statutes by confining their provisions to pub- lic mills (111. Rev. Stat. Ch. 92 § 1) seem to leave the question of pul)lie use in every case to judicial determination. The decision of the Supreme Court in Head v. Amoskeag Co. does not make it quite clear whether the court would sustain the exercise of the power for the exclusive private advantage of the land of the mill owner. l)ut if such a case should arise many courts would undoubtedly hold it to be an unjustifiable taking for private use. The difficulty presented by the laws of the jNIassachusetts type is that there is no in-ovision for securing tho application of the water power to a use even remotely public. Tlu' Sui)rL-nie Court of Massachusetts recognises this and seeks to avoid the objection arising on this ground by contending that the flowage does not constitute the taking of j)i-ivatr property or right, bnf is iiicfcl\- a mode of I'cgulating common rights'* — a view to wliidi il is ditlicuH to assent. For the law of joint ownership presents no analogous case of grant- ing to one of the parties exclusive advantages to the prejudice of the others, reniitt in^;- the latter to a cans(> of action for aii-inent of the •I Tyler V. B.;i.li.T. It Vt. 648, Tlu; Virfjinhi A flooded through the operation of booms or similar works for floating lumber, on payment of compensation.^- In IMassachu- setts the flooding of lands is permitted in the interest of cran- berry culture ;i-^ the Supreme Court of Wisconsin has left the (juestion of the constitutionality of similar legislation unde- termined. ^^ An extreme case was presented in Turner v. Nyei5 where an act allowed the owner of land to erect dams to raise a pond for the cultivation of useful fishes, and to flood other lands for that purpose, the owner of the latter l;tnd to i*> Williams v. Nelson, -23 Pick. 12 New York Navigation Law, § 141 ; :\Iurdoek v. Stickney, 8 Cush. 72, and cases cited note 37. § 40i), 113. supra. 11 Block, Dietionnaire, Cours d 'can I'i Rev. Laws, ch. U>6, § 39. non-navigables 16; German Trade 1* Ramsdale v. Foote, 55 Wis. Code § 16; Prussian Law Febr. 28, 557. 1843, § 13. i--]o4 Mass. 579. 436 QUALIFIED PROPERTY. §414 be allowed damages unless he chose to embank his land and stop the flowage. The act was upheld on the ground that though the object of the person erecting the dam was his own pleasure and profit, the public would be benefited by the in- troduction of a new and profitable industry. In New York a statute authorised any person desirous of floating logs, etc., down a river recognised as a public high- way, to construct a chute in any dam across it, and to con- struct such piers or booms as might be necessary for the pass- age of logs, paying to the OAvner of lands floated thereby the damages that he might sustain. The act was held unconsti- tutional partly because the provision for compensation was not sufficiently certain or secure, but partly also on the ground that it could not be deemed to be an appropriation for public use, if each person was allowed to invade private property of another for his own purposes, indemnifying for each particular use, instead of making an appropriation for the public benefit once for all, the result being in reality a taking for private use. The court likens this to a statute which instead of con- demning ground for a public common should allow any person to go on it for recreation, paying compensation for his par- ticular use to the owner.^^ The difficulty is substantially the same as in tlic mill dam cases, and the New York court has adopted the stricter view. The court recognises that the power of eminent doiii.iiii iiiny he exercised for the permanent con- version of a brook into a i)ublic highway and that the use for floating logs mak(^s it a public highway.^' NATURAL WATER AS QUALIFIED PROPERTY. §§ 414-417. ij 414. Common law easements.— In i-oniit'dioii Avith the sub- ject of (|ualifie(l property reference should be made to the de- velopiiHMit of till- law of watei' ;iiiil watercourses iu tli(> and states of the West. A1 coiiiiiKiii law the right of the riparian propi-ictor to the water (tf llic stream running by or tlironvdi his Liiid is (|ualified by easements in favor of olln'c fi|)aii;iii ju-oprietors. "By the eommon law. the rii)arian owih r on ;i stream not navigable, tak'es the lanil to the center of the stream, and such owner has til"' fight to the use of tlu^ water flowing over the land as an i-'HrcwHtor v. J. & .T. Rogers Co., '' Uo PiiriiH, 1.'>.') N. Y. 23, 49 N. Hi'.t \. Y. 73. fi'J \. K. HVl. E, L'46. §415 PRIOR APPRUriilATIoX. j;{7 incident to his estate. And as all such owners on the stream have an equality of right to the use of the water, as it naturally flows, in quality, and without diminution in quantity, except so far as such diminution may be created by tin* rcasonabb- use of the water for certain domestic, a{,'rieulturai or manu- facturing purposes, there could not be, according to that law, any such diversion or use of the water by one owner as would work material detriment to any other OAvner below him. .\or could the water by one owner be so retarded in its flow as to be thrown back to the injury of another owner above him."'** § 415. Doctrine of prior appropriation. — In consequence of the scarcity of water in the Pacific states, and the demand for it in mining operations, a custom sprang up materially altering the common law, which is known as the doctrine of prior ap- propriation. To quote again from the case last cited: "This equality of right among all the ])roprietors on the same stream would have been incompatible with any extended diversion of the water by one proprietor, and its conversance for mining purposes to points from which it could not be restored to the stream. But the government being the sole proprietor of all the public lands, whether bordering on streams or otherwise, there was no occasion for the application of the common law doctrine of riparian i^roprietorship with respect to the waters of those streams. The government, b}^ its silent acquiescence, assented to the general occupation of the public lands for min- ing, and to encourage their free and unlimited use for that purpose, reserved such lands as were mineral from sale and the acquisition of title by settlement. And he who first con- nects his own labor with property thus situated and open to general exploration does, in natural justice, acquire a better right to its use and enjoyment than others who have not given such labor." The court then quotes from an early California ease^^ as follows: "If there are, as must be admitted, many things connected with this system, which are crude and inidi- gested, and subject to fluctuation and dispute, there are still some, which a universal sense of necessity and propriety have so firmly fixed as that they have come to be looked upon as having the force and effect of res judicata. Among these the most important are the rights of miners to be protected in 18 Atchison v. Peterson, 20 "Wall. lo Irwin v. Phillips, 5 Cal. 140, 507. 1855. 438 QUALli^IED PROPERTY. § 41li their selected localities, and the rights of those who, by prior appropriation, have taken the waters from their natnral beds, and by costly artificial works have conducted them for miles over mountains and ravines to supply the necessities of gold digrgers and without which the most important interests of the mineral region would remain without development. So fully recognised have become these rights, that without any specific legislation conferring or confirming them, they are alluded to and spoken of in various Acts of the Legislature in the same manner as if they were rights which had been vested by the most distinct expression of the will of the law makers." In 1866 the doctrine was recognised by legislation of Con- g:ress, now ^ 2339 and 2340 of the Revised Statutes : ' ' When- ever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing or other purposes, have vested and accrued, and the same are recognised and acknowl- edged by the local customs, laws, and the decisions of the courts, the possessors and owners of such vested rights shall l)c' maintained and protected in llie same. * * * AH pat- ents g:ranted, or pre-emption or homesteads allowed, shall be subject to any vested and accrued water rights, or rights to ditches and reservoirs used in connection with such water rights, as may have been acquired under or recognised by the l)receding section." 5$ 416. Subordination of right to beneficial purpose.— The right of piinr nppropriation, ai)plied first to mining, has as- sumed increased importance with the growth of agricultural interests. Where the successful cultivation of the land de- jii'iids u])<)ii ir'rigation, the control of water means the control of hinri;il ion were abused or misai)pli('d. To avoid this, tlw (li»ctrin<' li.id to he developed Ko as to become an insti iinient to serve rather than to control the pu])lic interest. Tliis was done by interpreting: the right as limited in its existence by its beneficial exercise. "Tlie ap- propriation nnist bo for some useful or beneficial puri)()se, and when the af)propriator and his successors in interest cease; to use it for sui-h ;i purpose, the right ceases. "^^ The appro- 2" Civil Coflo of flail fornia, § I II I. i5 417 WATEK iX THE ARID WEST. ■k6'J priator cannot claim more than the amount which he actually diverts, and which he can use beneficially for the purpose toi which he has diverted it. "The rights acquired by tlie ui)prein to he innnateci;!! to the validity of state legislation eiiroreing e(|nal ser-vice on i-r;isonal)le 1j;lit v. ('(.rtri^rlit, (54 (8. C.) 244; HrouKlitoii v. Sin^rli- N. J. L. 330, 4s L. R. A. (iKi. Sec. ton, 2 Nott & McCord (S. ('.) XW. also Wasliinjjtdn lie Co. v. Slmrtall, rizllalt- .If Jure MariH, di. 4. 101 Ml. 4(i. ■■'•'' Hale v. Waile, Blount V. La.var.l. lH!tl, 'J Cli. fisl. 10(1 Wis. MC,. 42 !i. \{. A. :!()."). note. •■"• 13 10(1. 1, c. 47. {^ 419 GAME AND FlSlI. 443 occurs also logislalioii lor tin- prfscrvalion ol' •_miii<\ roii.i.l. ding its taking at certain seasons or in certain ways. Similar legislation has existed in America since the colonial times. An act of ^Massachusetts of 1(J'J8 establishes a closf time for deer, and makes the possession of the skin sulTlicienl evidence for conviction. A similar statute was pasi:ed for XcAv York in 1705. At present elaborate laws exist every- where, establishing close seasons during which the hunting. killing, carrj'ing, selling, and even the possession of killfd game and fish is made unlawful, prohibiting certain ihodes of hunting and fishing altogether, and foi-bidding the pollution of waters by wdiich fish are apt to be destroyed,^" or tin* obstruction of waters by wdiich their free passage is pre- vented.4° « § 419. Constitutionality. — The constitutionality of game and lish law^s may be supported upon several distinct and partly concurrent theories. The one most commonly relied upon is that game and lish are owned by the sovereign state in trust for the people; and while a right of occupancy is recognised with regard to them, this is in the nature of a license or privilege, which the state may circumscribe as it sees fit, or at all events, in a very much more incisive manner than other property rights which under the constitution are purely private.^ ^ The power of the state may be exercised by depriving dead game of the character of an article of commerce, so by forltidding its consignment through a connnon carrier to a connnission mer- chant or sale market.-*- The power of the state extend.s to the protection of fish and game on private property, over which they may pass or in wdiich they may transiently dwell, since such temporary and accidental control does not give absolute 3oPeoplo V. Elk Eiver Co., 107 "R. A. 414. Cal. 214. -Ji Maguer v. People, !i7 111. 3:10; 40Cottrill V. Myrick, 12 Me. 222, State v. Rodman, 58 Minn. :«).H. 1835. See as to requirement to 59 N. W. 1098; E.x i)arto Maior. build fishways for the passage of 103 Cal. 476, 37 Pac. 402. fish, qualifying previous water •»- State v. Chapel. (54 Minn. i:i(». grants, Commissioners on Inland (W N. W. 205; American Exp. Co. Fisheries v. Holyoke Water Power v. People, 133 111. 640. 24 N. E. Co., 104 Mass. 446; Holvoke Water 758, 23 Am. St. Kep. 641, 5> T.. K. Co. V. Lyman, 15 Wall. 500; Parker A. 138; People v. Van Pell, 9o N. V. People, 111 111. 581; State ex rel. W. 424. Eemley v. :Meek, 112 la. 338, 51 L. 444 QUALIFIED PKOPEETY. § 419 property ; and it is~sufficient that waters in private ownership are connected with other waters at certain periods at which fish may pass into them.^^ Where fish are bred or raised by the owner, the state can claim no proprietary interest; if then the state may forbid the killing of such fish during certain seasons,-*-* we must fall back on one of two grounds: that the state has the right to enforce measures for the preservation of a valuable food supply— a ground strongly relied upon in support of fish or game laws in general,-*^— or that an owner may be required to conform to a regulation of his right of property which is necessary to prevent or make more difficult evasions of the law by others ; and this latter theory may also be used in sup- port of the prohibition of the sale of game imported from other states, which will be referred to presently. The protection of song or other wild birds from slaughter-*^ may be placed upon the ground— likewise available for game and fish— that living creatures may be saved by the power of the state from reckless or wasteful sacrifice. Probably, how- ever, an owner cannot be forbidden to destroy a noxious ani- mal when necessary for the protection of his property .•»' The question whether game and fish laws proceed upon the theory of sovereign ownership or of restraint of private prop- erty for the public welfare, would Ixcouic important, if slates like Massachusetts or New Jersey should undertake to Ihi-ow the right to fish in non-tidal navigable waters open to the |.iilili<-, I 111- i)r('vailing doctrine in these states conceding this riglit 1o till' i-ip;ii'l;iii owner."' If llie right of sevei";il fishery is a vested right of property,'' it is still subject to the police powi'i- wliieli )u:\y forbid the taking- at certain seasons and pre- • ■! iVoplu V. Klk Hivt-r Co., 107 •' Al.lii.li v. Wri^^lit, 53 iX. 11. ('ill, L'14; Peoi)lo v. Collison, 85 398. Mi.li. 1(15, 48 N. W. :J1»'J; Peopli! v. •«« fom, v. Chapin, 5 Pick. 199; Hri I.. \{. A. GH4; Comni<.ii\\f:iltli v. 33(i, IS L. ]{. A. (il(i. LiMik, ins MiiHS, 452. "'.i 'riicrc is :iiil limil y Id llif clVi'cf " ('omitionwoiiltli V. (lillMTt, !(>() tliiit. tlic owner dI' m ]iriv:itc (isli- MasH. 1')". '■•'>' ^^-'e^ rcjfjn-ilcd jit ruimniui l;iw as •«'• PliolpH V. K.-icf-y, (HI N. \. Ill; liaviiijr prn|M'ity in tlic (isli. See 15 I'r.oph' V. TiriilKOH, 142 III. 30. .Inii.lir.i! K'cvicw. p. 151. \i'\\ ^'ll|•l< I'ori"*!, I''isli all'! (ijuiif Law, 8 3.1. § 420 ClAxME AND FISH. 445 scribe strict regulations in the interest oi" tlie pn-scrvji^ion of a valuable food supply; l)ut the ri7'}, U L. K. A. 57!). qualification which forbids its re- « Merrilt v. People, Ki'.i 111. 1'18, nioval from the state necessarily en- 48 N. E. 325. tered into and formed part of •• Ex parte Maier, 103 Cal. 470, I very transaction on the subject, 37 I'ac. 402, 42 Am. St. Kep. 120. and deprived the mere sale and ex- <> I'eople v. I'.ull'.iln ImsIi <'<>., Hit change of these articles of tliat \. V^•J>.^, HH N. E. 34. clement of freedom of contract and ^ Manchesler v. Massachusetts, (if full owniTsliip which is an es- l.''.'.' V. S. 210. sential attribute of commerce." • Clininl.ers \. Warkliouse, 3 Salk. :i That the interest whicli the state 1 JO. has in preserving valuable resources §422 WAST 10. J47 the particular breed or individual. * * * As it is prac- tically impossible by statute to distiiifruisli between the dilVer- ent breeds, or between the valuable and the woi-thless, such legislation as has been enacted upon the subject, thoutrh nom- inally including the whole canine race, is really directed against the latter class, and is based upon the theory that the owner of a really valuable dog will Feel sufficient interest in him to comply with any reasonable regulations designated to distinguish him from the common herd. Acting upon the ])rinciple that there is but a qualified proi)erty in them, and that, while private interests require that the valuable ones shall be protected, public interests demand that the worthless shall be exterminated, they have, from time immemorial, been considered as holding their lives at the will of the legislature, and properly falling within the police powers of the several states. "'^ Upon this ground it is held that the keeping of dogs may be conditioned upon a license, and upon compliance with other strict regulations intended to prevent them from becoming a nuisance; and non-compliance Avith such regula- tions may be foUoAved b}^ the entire withdrawal of the legal protection of the property, so that they may be killed without further legal process, and without giving to the owner a right of action for damages.^'' WASTE OF NATURAL WEALTH. §§ 4-'ii-423. § 422. Game and fish— Natural gas.— "While the constitu- tionality of the game and fish laws is maintained on the ground that the state is the real and ultimate proprietor of animals ferae naturae, it is also recognised that in their enactment the state exercises a police poAver for the public welfare in i)re- serving a species of natural Avealth which without si)ecial protection would be liable to extermination. "The ownership of wild animals, so far as they are capable of ownership, is in the state, not as proprietor (beneficial owner V but in its 9 Sentell v. New Orleans, &(-., R. lyne, 8 Utah, 245, 30 Pac. 760. 16 E. Co., 166 U. S. 698. L. R. A. 689. Contra: Lynn v. loHaller v. Sheridan, 27 Ind. State, 33 Tox. Cr. 153, 25 S. W. 779. 494; Hagerstown v. Witmer, 86 Md. bnt there the ordinance provided a 293, 39 L. R. A. 649; Leach v. El- method of killing (shooting unmuz- woo'd, 3 111. App. 453; State v. To- zled dogs in the streets), which was peka, 36 Kans. 76, 12 Pac. 310, 59 contrary to the general law of the Am. Rep. 529; Jenkins v. Ballan- state. 448 QUALIFIED PKOPERTY. § 422 sovereign capacity as the representative and for the benefit of all its people in common. The preservation of such animals as are adapted to consumption as food or to any other useful purpose is a matter of public interest; and it is within the police power of the state as the representative of the people * * * to enact such laws as will best preserve such game and secure its beneficial use in the future to the citizens. "^^ Where game and fish is imported, or bred through the expendi- ture of private capital, restrictive laws can be justified only upon this ground of the police power.^- The question to what extent property which is liable to ex- termination may be protected by restraints upon the owner's power of disposition, has otherwise called for little discussion. Two Indiana cases have maintained the constitutionality of legislation, by which the owner of land on which there are natural gas wells, is forbidden to use them in a waste- ful manner, by burning "flambeau'' lights or by permit- ting a flow of gas to escape into the open air.i=^ The court speaks of natural gas as a mineral ferae naturae,^^ and the first decision relies largely upon the analogy of game and fish laws; the theory being that the title to natural gas does not vest in any private OAvner until it is reduced to actual possession. But the court also argues that after the gas has been drawn into wells or tanks, its waste may be treated as a nuisance. "The object and policy of that inhibition is to prevent, if possible, the exhaustion of the storehouse of nature, wherein is deposited an element of nature that min- isters * * * to the comfort, happiness and W(^ll-being of society. * * * It |the company] may use its wells to pro- duce gas for a legitimate use, and must so use them as not to injure others or the community at large. * * * TIk^ injury— the «'xhaustion of natural gas— is not only an irrc])- aral)lc our, hut it will be a great jjublic calamity." The Supreme Court ol' the United States, in aflii'niing tiic (Iccision in tlic case of the Ohio (»il Company ;is not violating the Four- teenth .\iiiiii(|iii('nt, adopts a somewhat difi'cniil icisonini:.- from Unit rollowiMJ by tln' Indiaiiii court, (i.is :iii(l oil jii-c rc- 11 Stale V. Ifodnian, M Minn, 393. Co., IfjO Tnd. 21, 49 N. E. 809, 47 12 Com. V. (iillMTt, 1(50 MuHH. IT)?. ^,. K. A. 627. 13 TownHPnrl v. Htafc, 147 Itnl. ' ' Sec WoHtiiKurhiMd vVrc C-ih Com- 024, 47 ,N'. K. 19; State v. Oliin Oil pjiiiy v. |)c Will, I .".(i I';i. St. •_':'.;">. ^ 423 FOREST I'KESKKVATION. 44y {?arded as substances, individual ownership in which is pcT- fected only by appropriation and reduction to possessif)n. Until such appropriation, and w'hile occupying? their natural reservoirs beneath the surface of the earth, ^as and oil belong in common to all the surface owners, passin^^ as they do freely and without control from the domain of one to that of th<' other. There is thus a common fund and the legislative power is exerted "for the purpose of protecting all the col- lective owners, by securing a just distribution, to arise from the enjoyment, by them, of their privilege to reduce to pos- session, and to reach the like end by preventing waste.' '•'• The question whether the state may prevent the waste of ])roj)- erty, w'hich has become completely vested in an individual. is thus left unanswered. The view of the federal supreme court has since been adopted in Indiana.^ "^ § 423. Forest preservation.— In a country which has a great abundance of natural resources, legislation to prevent their wasteful and unscientific exploitation is apt to be little needed, and is generally contrary to public sentiment. But even in the older countries, such legislation seems to be avoided. In the sixteenth century, a number of statutes were enacted in England for the preservation of forests, forbidding the fell- ing of timber to be made into coal, and restraining the erection of iron mills to prevent the excessive consumption of fuel.'' At present there is no legislation regarding forestry in Eng- land. In France and in Prussia, the policy of preserving forests as an element of national wealth by controlling the management of private property has been abandoned; as the ownership of forests is largely vested in the state and the communes, the same object can be accomplished by the exer- cise of proprietary powers on the part of the state. In this country it would probably be a strong consideration against legislation prescribing the observance of principles of forestry in the management of private forests, that there is no analogy or precedent for it, unless it could be shown that the supply of forest land was limited and in danger of exhaustion, and 15 Ohio Oil Co. V. Tndiana. 177 U. v. Indiana Gas & Oil Co., If..') In-l. g 190. 461, 57 N. E. 912. See § 425, infra. 10 Manufacturers' Gas & Oil Co. i' 35 H. VII, c. 17; 1 Eliz., c. 15; 23 Eliz., c. 5; 27 Eliz., c. ll>. 29 450 QUALIFIED PKOl'KinV. § 424 that the regulation was not destrnetive of the value of the land to the OAvner. Restrictive legislation for the preservation of forests, where the denudation of the soil endangers neighboring land or the eoimtry at large, exists both in France and in (Jermany. The state requires the maintenance of forests, where they are necessary for the protection of mountain sides or dimes, or for the existence of springs and streams, or for the prevention of erosion or floods, or for the publi9 health. The Prussian law adds that the restraint upon the owner must not be dis- proportionate to the public danger to be averted. ^'^ Similar legislation in this country would, it seems, be justified upon the principle laid down in Commonwealth v. Tewksbury,i» where the owners of shorelands constituting a natural barrier against the inroads of the sea were prohibited from removing gravel and stone. The two cases would seem to be precisely analogous. Forests which are essential to the physical protection of the country may be regarded as subject to a natural easement for that purpose, and the person who ne((uires them takes them cum OH ere. KESTliK'TIONS UPON PROPERTY IN THE INTEREST OF OTHER OWNERS. §§424-427. §424. Easement of support. — The nature of real estate as a subject of i)ropei-ty in.ikes it impossible that the ownership of it should be as absolute as that of many kinds of per- sonal property. The eiijoynuMit of land is in many respects de- pendent upon the condition of otlu-r ami especially neigh- boring estates. The eomjnop law recognises in consequence of this depeiKleiiee certain natuial rights which land owners have against eiidi utlnM-. i-ehiting to llie pui'ity oi" the air, to later;il and snhjac'nl sii|)|kii'I, and to the henefit »»!' natui'al waters. The interests which Jnslily the existence of these er)ninion hiw rights must also justify tli<'ir modification by the legislature, if neeessai-y for the purpose of aeeomi)lishing more perfect just ice. These interests are indeed mofc private than pidilic, and it may thererore be questioned whcllier mod- ifying stat\iles fall under Hie |)oli('e power, and shouhl not rather be ascribed to Hie power of i-ivil legislation. But the fLnw of July 6, 187.'), "'11 Mete. 5.'); § too, supra. §425 NEJGHBURS' KUJHTS. 4;,! elassification of such statutes is of minor coiiscipifiu'.- as Um'j as their vaJidity is recognised. There is comparatively litth' legishUion upon this sulij.-ct. While the common hnv confines the duty of mutual support to soil in its natural state, and recognises with regard to l)uild- ings merely a duty of care in excavating the adjacent soil-" or perhaps a duty to give notice to the owner of the building,2' a statute applying to the City of New York provides that where a wall is endangered by excavations ui)on the neighbor- ing lot going to a depth of more than ten feet below tho curb, the person causing the excavation to be made, if afforded the necessary license to enter the adjoining land shall at his own expense preserve such wall from in jury ,-2 — a reasonable regulation the validity of which has not been questioned. § 425. Natural waters.— The correlative rights and duties of riparian proprietors have to some extent been affected by the mill acts which have been considered before, 23 but on the whole the common law principle, that the right to impair or affect the quantity or quality of watei- or the strength of the current must be determined by what is under all the cir- cumstances a reasonable use, has been left to judicial applica- tion and enforcement,-^ and has not been made, as well it might be, the subject of statutory and administrative regu- lation. The determination of priorities and amounts of appropriation of natural waters under the water act of Wyo- ming's seems, however, practically to amount to such regula- tion, and has in principle been upheld by the supreme court of that state, with respect to rights acquired prior as well as subsequent to the act and the constitution of the state.-" In this connection a decision of the Supreme Court of Wis- 20 Walters v. Pfeil, Moo. & Mai. -•* Pitts v. Lancaster Mills. Hi 362; Moody v. McClelland, 39 Ala. Mete. 156; Thurber v. Martin, 2 45, 84 Am. Dec. 770; Charless v. Gray, 394; Snow v. Parsons, 28 Vt. RanMn, 22 Mo. 566; 66 Am. Dee. 459. 642; Shrieve v. Stokes, 8 B. Mon. 25 Laws 1890-91, Chapter 8, es- (47 Ky.) 453, 48 Am. Dec. 401. peeially See. 20, 24, 25, 26; Revised 21 Schultz V. Byers, 53 N. .T. Law, Statutes 1899, Sec. 867, 871, 872, 442, 26 Am. St. Eep. 435. 873. 22 N. Y. Laws 1882, Chapter 410, 26 Farm Investment Company v. Sec. 474; and see also Jones, Ease- Carpenter, 9 Wyo. 110. 61 Pac. 258. ments. Sec. 587. 50 L. H. A. 747. 23 §§ 410-413. 452 QUALIFIED PEOPEKTY. ^ 42G consin should be noticed. A law of that state-" provided that "any person who shall needlessly allow or permit any artesian well owned or operated by him to discharge greater quantities of water than is reasonably necessary for the use of such person, so as to materially' diminish the flow of water in any other artesian well in the same vicinit.y, shall be liable for all damages which the owner of any such other well may sus- tain." This act was declared unconstitutional on the ground that percolating waters are the absolute property of the owner of the soil, and that the limitation attempted to be imposed upon the owner by the act not being dictated by any public interest does not fall within the police power.^s This, it is submitted, is an unduly narrow view of the powers of the state. True, it luis hei-u held that underground waters flowing in no definite channel may be dealt with by the owner of the soil without regard to the interests of other owners whose water supply he may intercept ;-^ but this right does not go to the extent of draining water from definite watercourses,^" and there is authority for the doctrine that the interception of underground waters is justified only by the reasonable use of the land.3^ If so, the right ought to be subject to a legisla- tive determination of the consequences of an unreasonable use, and the legislation of Wisconsin does not appear to have exceeded this scope. It ought therefore to have been sus- tained as legitimate exercise of legislative power. It is not easy to understand why the decisions in the gas and oil cases,-^- which seem to be closely analogous, should have been rejected by the court as inapplicable to percolating waters. ^ 426. Malicious erections and private nuisances.— Statutes I)rohibiting malicious erections may be referred to this branch of legislative i)Ower. Unless the power to abuse property rights is in('lnd(' dealt with only according to the established principles of common law and equity, and not by the legislative require- ment of positive measures of relief. § 427. Private roads.— Where the legislature authorises the laying out of a private road for the convenience of one owner of land over the land of another, Avithout the consent of the latter, who is forced to yield an easenumt in retui-n for a compensation, it may be said that private property is taken 33Rideout V. Knox, 148 Mass. Knickerbocker, 103 Cal. Ill; Kara- 368; Hunt v. Coggin, 66 N. H. 140; sek v. Peior. L'2 Wash. 419. .'".0 L. H. Lord V. Langdon, 91 Me. 221, ."^O A. 345; Horan v. Byrnes (N. H.), Atl. 552; Gallagher v. Dodge, 48 54 Atl. 945. Conn. 387; Western Granite Co. v. 34 67 Oh. 279, 65 N. E. 1020. 454 QUALIFIED PKOPEETT. § 427 for private use, and the question arises whether this is con- stitutional. The courts have given different answers to this question. In Massachusetts and California the power has been sustained on the ground that the road although called private is sub- ject to public use.35 Pennsylvania, and Michigan hold that clear practical necessity justifies the exercise of the power.3« In Alabama, Illinois, Missouri, New York, Oregon, Tennessee, and Wisconsin the power has been denied on the ground that express authority for taking for public use by implication excludes taking for private use;^^ but in most of these and some other states (Alabama, Colorado, Illinois, New York, Michigan, :\Iississippi, Missouri, New York, South Carolina, AVashington, Wyoming) it has been sanctioned by express constitutional provision. The constitution of Illinois also provides for the construc- tion of drains, ditches and levees for agricultural, sanitary, and mining purposes, across the lands of others,^'^ and a similar clause was placed in the New York constitution of 1894. It was intimated in a decision of the Court of Appeals of New York (but all other justices concurred in the de- cision only upon another ground), that this constitutional pro- as Denham v. Bristol, 108 Mass. but it is also to the prejudice of the 202 ; Sherman v. Buiek, 32 Cal. 241 ; public need that land should lie Monterey Co. v. Gushing, 83 Cal. fresh and unoccupied." 507. A similar view is taken of so Pocopson Road. 16 Pa. St. 15; switch tracks, or spurs, to private Ayres v. Richards, 38 Mich. 214, but factories- McGann v. People, 104 method of procedure in this case 111. 526 62 N. E. 941, also Chicago held unconstitutional, see Schehr v. & N. W. R. Co. v. Morehouse, Detroit, 45 Mich. 626. 112 Wis. 1. The duty of a rail- •'" Sadler v. Langham, 34 Ala. road company to maintain a cross- 311; Nesbit v. Trumbo, 39 111. 110; ing in order to give access to pii- Dickey v. Tennison, 27 Mo. 373; vate property from which the owner Taylor v. Porter, 4 Tlill 140; With- has been cut off by the road (Mass. am v. Osborn, 4 Or. 318; Clack v. Rev. L. ch. Ill, § 144) has been White, 2 Swan (Tenn.), 540; Os- hcld to be a regiil:ilinti of a pre- born v. Hart, 24 Wis. 89. viouHly existing right of necessity; ••<« Constitution, Art. IV, § 31. A IS'ew York and N. E. R. Co. v. provision for private drains was lioard of K. H. Com 'crs, 162 Mass. Iwld unconstitutional in Iowa, the 81 38 N. E. 27. See Packer v. law prescribing no conditions or ju- Wclsted 2 Sid. 39, 111. 1658 .li.i:il iiK|niry for the exercise of tho (Cray's Cases, III. 467): "It is rigUI. Fleming v. Hull, 73 la. 598. not only a private inconvenience, § 427 PKIVATE ROADS. 435 vision violated the federal constitution, since the taking <>f property for private use was takinj^ without due process of law,'^" but this certainly cannot be true Tlic t-ontcntion that l)roperty can under no circumstances Ix/ condciiincd Un- pri- vate use rests chieHy upon the fact that the constitutions pro- vide expressly only for the taking for public use; the expres- sion of one is sui)posed to be the negation of tin* other. Tin* objection on this ground disappears when- llic constitution makes positive provision for the taking I'oi- inivatc use. It ought to be within the power of tln' legislature to pi-ovide for the adequate enjoyment of land, where it can be secured by compelling another owner to make slight concessions whieh can be easily offset by the payment of pecuniary eomj)ensa- tion. In the case of the mill acts, such power has been recog- nised without express constitutional provision. 39 Re Tuthill, 163 N. Y. 133, 57 I<. E. 303. CHAPTER XX. COMPUIiSORY BENEFITS. § 428. Protection and bounties.— The encouragement of trade and industry is everywhere regarded as a legitimate function of government. Most modern states protect their citizens to a greater or less degree from foreign competition, and while this function is not within the province of the com- monwealth governments of the United States, it is exercised very freely 1)\- the national government, and the constitu- tionality of the tariff laws established for that purpose is generally acquiesced in. Protection against domestic com- petition has a very different aspect, for it can aid one class only at the expense of another, and the national wealth is diminished instead of being increased by interfering with the natural play of economic forces. Even the exemption of some industry from taxation is justly regarded as an objectionable form of governmental protection, since it increases the bur- dens of other tax payers, and is therefore forbidden by many state constitutions. 1 'i'hc same objection n])plios still more forcibly against a system of bounties. Bounties to sugar pro- ducers were provided for by the tariff' act of 1890,- but re- pealed by the act of 18!)4.-' The Supreme Court of the Tnitetl States has not passed directly upon the validity of this legis- lation,^ but a similar bounty law of Michigan has been de- clared unconstitutional.'"' § 429. Scope of police power. — While the government may ill other ways aid and encourage industry, especially throniili iid'oi'inat ii)n and ediic.-ilion,"' very little, it' anything, can he aecoiiiplislicd hy iiie;isiii'es of compulsion in the way of stinndal iiiii' Itn' in'iid ud ion dl' wcallli, and leij'islat ion ol" this ehiira<'ter has |ii'act leally hrcn aliandoned, in so i'ai' as the (Mintriil ol' purely indi\i the \)\i\)- lic. So in some states, in conformity to the ])i-aeti('e of the civil law, habitual sjx'ndthrifts may he deprived uj" the eai-e and inanaLTenietil n\' their estates, but only where the spend- thril't wastes <>v lessens his estate so "as to I'Xpose hinisell" or his family to wjint or sulVering, oi- an\' county, town oi- ineoiporated city or village to any cliarge or expense for the siippoi't of himself or liis family."'" The spendthrift appears to be Iri-aled ;is a |)ei'son not in full possession of his nii-ntal powers. It is (rue that, tin- (•ommoii law did not i-estrain "1 \{i-\. Stat. |.. (')()(). § 1. e'lllituiis Revised Statutes, cli. 8G, Sec. 1. §432 COMPULSORY IXSURAiN'CE. 45:iymciit of the land tax. (Roscher sistance; where people are ignorant, Nationaloekonomie, Sec. L'37 c). custom is far beyond the power of 4(j0 COMPULSOEY BENEFITS. § 433 levied on employers even in cases in M-hieli the latter can in no wise be held responsible for the condition provided against, as e. g. old age. To this extent there is not so much insurance (for the contributing employer cannot in any event be a bene- ficiary) as taxation. § 433. Its constitutional aspect.— What would be the con- stitutional aspect of compulsory insurance or indemnity funds in this country ? The levying of an assessment upon employers to insure em- ployees against sickness or old age being in reality a form of taxation, would have to be judged by the constitutional provisions of each state regarding taxation. In most states it would probably violate the rules regarding uniformity of taxation. There would probably be also a strong feeling that the purpose is not a public one; but conceding that the pur- pose is novel, it is impossible to assert that public sentiment will never come to regard the securing of a reasonable com- petence to the economically weak and dependent classes as a proper function of the state. It would lie a form of paternal government, but if all functions which may properly be desig- nated as paternal were necessarily unconstitutional, a large amount of well established legislation could not stand. Should the law undertake to create an indemnity fund from compulsory contributions of all those whose business or i)rop- erty occasions the loss to hv i)rovided against, there Avould be something analogous 1o ;ui employers' liability insurance. The objection to siu-li a system would be tliat an iiidividiial would be forced to share in making good a loss willi which in a ])ai-ti(Milar case ]\r liad no connection, and although he took the utmost precaution to avoid such loss so far as the manage- ment of his own ])ropcfty was concerned, lint the objection is not coTudnsivc. The controlling consideraLion is the exist- ence (iT a risk or danger, wliich the ])olice power may seek to minimise; and it is i-easonaMe that lliose w lio ci'cale oi" maintain the risk oi* danger for llieir own hemlil shonid con- sent !<• Ilie most ed'echial means (d' ohxiating ils liaruirnl <'oii- seqiiences; and collective responsihility is a wise and eon- si'rvative melliud nj" irieeline- the risk, and its imposition shonid he allowed as a valid cotMJilion of the i-i^ht of l. which has its recourse against the is Cooley v. Board of Wardens, owner of the dog. Town of Wilton 12 How. 299. p. 313. V. Town of Weston, 48 Conn. 325. 462 COMPULSOEY BENEFITS. § 435 [Marine Hospital,^'' which tax was abolished by act of June 26, 1884.2'^ The plan was constitutionally objectionable in that it did not give to all contributing' sailors a definite legal right to relief. § 435. Insurance in connection with re^stration of titles.— Compulsory insurance is also found in connection with the registration of land titles. The law of Ohio, following the precedent of the Australian Torrens Act, directed the collec- tion, upon registration of every title, of a fee, to go towards the making up of an insurance fund out of which to indemnify persons who should be deprived of their titles through the operation of the provisions making registration conclusive upon the question of title. This provision was held uncon- stitutional. The Supreme Court said: "These lands by the terms of the act are subjected to a charge or contribution payable through the recorder to the treasurer of the county. That is, to the extent of such assessments this property is to be taken by public authority and without the consent of the owner. For what public purpose? Primarily the purpose is to indemnify private persons whose lands have been wrong- fully taken from them under the provisions of the act. If the act were otherwise constitutional, the ultimate benefit would accrue to those who as the result of registration (which gives conclusive effect to mistake, fraud or forgery) have acfiuired hinds which belong to others. That this is in no sense a pul)lie purpose, seems cleai-. Considering the purpose for which government is instituted, and the high conception of individual right which prevailed at Ihe time of the adojition of the constitution, it would be strange if authority Imd been conferral upon the state to ciii-i-y on the l)iisiiii'ss of an in- surer of private titles. "^^ It is true that compulsory insurance is not an individualistic institulioii. hut the whole development of tlie police power lijis Urrti ;i iiioflaiiil I lie Kinjjdoni. " !)>• Uoyal I'niclaniation in \iVM; sec -i Stale v. CuillHTl. .".C. ( )li. SI. Hym.T'H Kdlclera, vol. L'O, p. 1278, 575, 47 N. E. 551, 38 1. U. A. 51<.». "according to tlic vulimtary ofTcr ^ 4:i(; PEN«10X' l-'UXDS. 4(;;{ seventy-live years aj^o. The purpose ol' tlic Oliio law was im less public than that of the law indeinnifyiiiiu: owners of sherj*; on the contrary, it was a great deal more public since tlic risk of loss sprang from the exercise of a public function. If it is competent for the state to make titles conclusive, tin- indemnifi- cation for losses the risk of which inevitably results from the system, becomes part of the requirements for the suc- cessful operation of that system, and ceases to be a [)urely l)rivate benefit. The system being responsible for the loss, why should it not be constitutional to distribute the loss among the beneficiaries of the system? The provision for the in- demnity fund is found in similar laws of other states-- and has not been judicially questioned. §436. Teachers' pension fund.— The Supreme Court of Ohio has adhered to its condemnation of compulsory insurance in the case concerning the legality of a teachers' pension fund, made up of deductions from salaries.-" It was held that the scheme did not merely involve a reduction of future salaries (so that the tax payers would be the real contributors to the fund), but a deduction from salaries already earned, or con- tracted for, and hence was the taking of private property from one citizen for the benefit of another. "A teacher's salary is his property. He has a right under the constitution, to use that salary for his own benefit or for the benefit of others, as he may see fit. If he thinks it best to provide for old age, he may do so ; but, if he prefers to spend his money as he earns it, it is his right, under the constitution, to do that." The act was also held to be void because not operating imi- formly throughout the state. The objections held fatal to the laAV would have had no force, if it had been general, and had directed the pension fund to be made up of deductions from salaries, the right to which had not become vested. § 437. Compulsory insurance of workmen.— In the com- pulsory insurance of workmen the public interest is more remote than in the insurance of land titles in connection with a system of registration. In a large sense, the conununity is 22 Illinois Act, Sec. 99, 100; Mass. invaliquiring the keep- ing of on(? cow for every sixty sheep.'' in otdcr to maintain find iMijx-ovr tlic 1)1 (■<•(! (>\' horses, tlie owner of ev(>ry park was to keep two mares,' and liorses below a certain size were not to he alloweil lo |>;is1ure on iiny commons.''' To encourage h'liip growing, it was re(|uire(l 11i;i1 one rood oni of every sixty acres oi" lillli'jc shollM he sel ;ip;irt Tof 11l!l1 |)Urpose;" to prot(>ct 1 (i !1. VIII, '•. .'-,; -7 II. VIII, ••. "2 aii.i :t I'. & M. c. 3. 22; 5 Jin a|)- prentice children of persons havinj; less than liO sh. annual rent to a trade ;^ to encourage English manufactures, the peo- ple were required to wear English made caps.'-' Statutes re- straining importation and certain exports to protect doniesti** industries, are mentioned in Blackstone IV 154, IIJO. A colonial act of Massachusetts which is found in the Revised Laws of ir)49 requiring every family to spin an amount to he assessi-d from year to year, belongs to the same category. § 439. Constitutional aspect of such legislation.— Restrictive or compulsory legislation of this eharac-ter is iiot at present to be found on our statute books. It has, moreover, been al)an- doned by nearly all civilised states. One of the last con- spicuous applications of the policy was found in the com- pulsory culture system pursued by the Netherlands in lh<'ii- East Indian colonies; but the policy has been given up as un- just and oppressive. It should be mentioned that Oermany still attempts to maintain the quality of the breed of animals by regulating the standard of males to be admitted to the serv- ice of females,^^'— legislation similar in principle to the English statutes before mentioned. It cannot be denied that the state has a very great interest in the improvement of private land, in the breeds of live stock, and in the distribution and quality of industries and manu- factures. The non-exercise of the police power on behalf of that interest must therefore be due to countervailing consid- erations. The consensus of opinion is that on the one hanil the self-interest of individuals may be relied upon to seek the most productive channels of private enterprise, and that in- evitable mistakes would not be diminished but multiplied by governmental interference; and that on the other hand com- pulsion would not only be burdensome, but so dillicult of en- forcement as to result almost certainly in gross inequality of operation. The latter consideration is probably of controlling effect. The exercise of individual discretion may be mani- festly contrary to the public interest: thus where large traet^ 7 12 Car. II c. 34. ^° Meyer, Verwaltungerecht, Soc. 8 7 H. IV, c. 17. 112. n 13 Eliz. c. 19. 30 466 COMPULSORY BENEFITS. § 439 of land are kept "waste ami uni]ni)rovetl either for sport or for speculation ; and the taxing power may in the absence of con- stitutional restrictions be exercised Avith a view to making this form of holding of property burdensome to the owner ;^^ but to compel him to improve Avould throw upon the state the function of determining the kind of improvements to be made, or would result in undesirable improvements. There has been little occasion for judicial discussion of the constitutional as- pects of such legislation : but at least one court has expressed itself strongly to the effect that land cannot be forfeited for failure to make improvements. "I am unwilling to concede that the legislature can, under pretext of jiromoting the in- terest of the state, control and direct the citizen in the use he shall make of his private property. I subscribe to the maxim, 'sic uterc tiio ut alienum non lacdas/ and I admit the power to punish for an injury done to individuals or the public. But I tleny that the legislature can constitutionally prescribe, under color of preventing public or private mischief, the quantity of labor the citizen shall perform on his farm, the kind of improvements he shall make and the time within which they must be constructed. The toleration of such power on the part of the government would be conceding to it the right of controlling every mnii, and dii-ceting the road he shall travel in the 'pursuit of happiness.' Thus the freedom of llic citi/cii would be lost in the despotic will of the government, and under the semblance of liberty we should have the es- sence of tyranny. "^- It is true that a corporation may have llie duty imposed "In Rome imperial constitutioiis liave been show 11 that the water provided tliat any one ])rinfjin^ de- weakened llie i()adl)ed and thus en- fierted lands under cultivation dangered the safety of iho travel- should obtain title, unless the own- linp public. — After the great fire in er retdaimed them within two years; LcmkIou owners of ho\ises burned or (Codex XI, 58, 8). |.ullcd dnwn were required to re- i-Caines v. Buford, :{1 Ky. 481, build within three years; in ease of 1833. — That a railroad company neglect to do so the value of the ejinnot be compelled to provide out- ground was to be assessed, and the lets fur water accumulating by tlic mayor was directed to sell the side of its right r)f way, if no pub- ground at the estimated value, tlie lie nuisancf! is thereby creatr-d, sec proceeds to be jiaid to the owner. Chicago & 10. R. R. Co. v. Keith, Stat. 19 Car. 11, c. 3, § 15 (i7 Ohio 270, 65 N. K. 1020. It (HitiT). might have been difTiTcnt if it could §440 JOINT IMPROVKMKNTS. 4(;7 upon it by statute (if it is not implied Irom llic dI.J.-.-i of its o,harteri3), to exercise its corporate powers for the ptirpose for which it was created,'^ but a corporate franchise is not a common right, and must be taken subject to such conditions ;is tlic legislature may choose to annex to i1. To impose an analogous duty upon the individual owner of property, would be to treat such property as affected with a public interest. It is not impossible that with regard to some forms of projx'rty and especially with regard to land, the courts may come to i-ecognise such an exercise of the police power, if practical methods can be devised of enforcing such a duty ; but no such power is at present claimed by any state.' •"• COMPULSORY JOINT IMPROVKMENT.S. §§440-444. § 440. Difference from cases before considered. — While in general a person wull not be compelled to improve his land in a particular manner, the principle suffers some modification where the improvement (without being strictly or directly public, though perhaps remotely and indirectly so) is com- mon to several adjoining estates. In one aspect the com- pulsion is exercised in favor of other persons, and thus re- sembles the legislation allowing the construction of private ways, drains, and ditches across the lands of others, which in some states is expressly authorised by constitutional provi- sion.' '^ But in the cases to be now' considered the owner whose land is affected by the exercise of the power shares in the benefit of the improvement to which he is made to con- tribute, and because he does so share he may be compelled to bear a part of the cost of the joint enterprise. § 441. Drainage and irrigation.— The drainage and irriga- tion laws of the several states provide that where a number of pieces of land are so situated that either the improvement can be undertaken only jointly, or that the joint improvement will be more effective or more economical tlinn individual works, a stated number or proportion, usual I \- ;t majority in interest or area, of owners may petition the proper authorities for the creation of a drainage or irrigntion district, whicli may 13 Morawetz Private Corporations, i^ The same would be true of pat- L'd Ed., Sec. 1018, 1019, 1025. ent rights; see infra, Monopolies, § 1-* Stimson Amer. Stat. Law TT, (i65. 8341. i« See See. 427, supra. 468 COMPULSORY BENEFITS. § 442 include the lands of non-eonsenting owners. After notice and hearing which is constitutionally indispensable/' if a proper case is made out, the district is made a quasi-public corpora- tion, commissioners are elected or appointed for the manage- ment of the work, and the expense is assessed upon the own- ers according to the benefit received by each. Laws of this character exist in many states without express constitutional provision; in other states, e. g. Illinois,!^ they are expressly authorised by the constitution. It has been shown that in New Jersey they go back to the year 1783.19 ^s a rule the statutes refer to a public interest subserved by the improvement in addition to that of the owners concerned. The legislation of New Jersey— which recognised the require- ment of the public interest— was sustained by the United States Supreme Court against the contention that it violated the Fourteenth Amendment.^" The legislation of Alassa- chusetts has been sustained although it speaks only of the general advantage of the proprietors.-^ J; 442. Constitutional justification.— In a number of states it has been held, that the mere economic advantage of the owners concerned will not justify the exercise of the power, but that some distinct public benefit must be shown. Hence such acts have been sustained solely as sanitary measures,22 and have been declared unconstitutional when they proceeded upon economic groimds or where no jn'ovision was made for determining whether the pul)lic health would W hciiclited.-'' It would be difficult to show an exercise of sanitary power in the case of compulsory irrigation, and the predominance of the private interest in the case of drainage generally ap- pears in the provision that tlif improvement is undertaken only upon a petition of a majority of owners. Were the sanitary purpose controlling, private owners would not he given power 17 F;illljr(i()k IrriK.'itioii District v. Sec. 3; Coomcs v. Burt, 22 Pick. 422. Brudlcy, 1(54 U. S. 112. See, also. State v. Board of Coni- isConstitutioiiui Anicndmpnt <>f iniHsioiicrs of Polk Co., 87 Mimi. 325, 1878. 1»2 N. W. 21(). 111114 II. s. (JlO. '-"- Kc HycrH, Tli N. \'. I; 1 >i>iiiiclly a"WurtH V. IfoanIaiMl, 111 V. S. v. Decker, 58 Wis. \*\\ \ Kiiiiiie v. CAH), 1885; Hce, also. State v. New- Bare, G8 Midi. 025. ark, 3 Dutch. (N. J.) 185; Tide an Re Tutliill, lfi3 N. Y. 133, 57 Water Co. v. Coatar, 3 C. E. Circeii N. E. 303; CifTord Drainage Dis- (N. J.) 54. trict v. Sliroor, 145 Ind. 572, 41 N. ■ii .MaHsacbuBctts Rev. Laws 105, K. (K'.fi. 5^442 DRAINACiE LAWK. ^^^(J to resist measures required by it. Tlic puMic interest (barriim the general interest in the profitable cniploynient of all prop- ertjO i« therefore in many cases ratlicr a specious plea tliaii a reality. 2^ Placing the power on i)urely ec<)noiiiie ^ruiuuls lliere is still a preponderance of argument in its favoc. It is true tliat ordinarily an owner will not be forced to inii)ro^e his land merely to increase the general prosperity of the country ;'■*•'' nor will one party be forced into a partnership with amillHi-, because the interests of both can be better served by joint than by individual action. But lands may be so situated toward each other as to create a mutual dependence and a natural community. The exercise of the police power then consists in applying to this community the same principle of majority rule which is recognised, as a matter of course, for local pur- poses in larger neighborhoods constituting political subdi- visions. Taking this view, compulsory drainage and irrigation is more easily justified than the mill-dam legislation, which lacks the element of joint benefit. The public interest is, in both classes of legislation, about the same, except that the drainage of wet lands may in some cases substantially improve the sanitary condition of some district.^" The fact that express constitutional provision has been made in some states for compulsory drainage or irrigation, is an additional argument in favor of the inherent power of the 24 In Ohio the legislation was de- Co., 45 N. J. L. 91, an act was Lel«l clared unconstitutional, the joint in- unconstitutional, by which a corpo- terest of the owners not being re- ration was authorised to reclaim the garded as satisfying the nviuirenient marshlands of a certain district of benefit to' public health, conve- without the consent of the owners, nience or welfare (Eeeves v. Treas- The expense was directed to be fixed urer of Wood Co., 8 Oh. St. 333, by contract with officially appointed 1858) ; later on the provision in the commissioners, and to be assessed statute and the finding by the local by them upon the lands reclainied. authorities that in their opinion The court treated the scheme as a the improvement was demanded by private venture for private emoln- or would be conducive to the public ment. (See § 397, note 42.) Had health, convenience or welfare, were the improvement been regarded as held to satisfy the constitution, called for by the public health, the (Sessions v. Crunkilton, 20 Oh, St. act would still have been objection- 349 1870.) able because it left the selection of 25 As to sanitary improvements see the lamls to be reclaimed to the § 617 infra. discretion of the company. 2cln Kean v. Driggs Drainage 470 CO.MPULSORY BENEFITS. §443 legislature; for the implied limitations of the constitution should embody permanent and unalterable principles of jus- tice; and the fact that a power is exi)ressly bestowed by the legislature tends to show that in denying it the courts had misunderstood or unduly strained the inherent limitations of the legislative power. Compulsory drainage is fully recog- nised by European continental legislation. 2" Compulsory as- sociation of land owners has also been resorted to to facilitate measures of common safety, especially the erection of dikes and levees as a protection from inundation. ^^ § 443. Party-walls. — The principle of joint improvements is applied in some states to party-walls.^^ The statute author- ises an owner when erecting a building to place one half of the wall upon his neighbor's land, and requires the adjoining owner upon using the wall in building on his own land, to pay his share of the cost. A provision of this kind was made by the provincial laws of Massachusetts as early as 1692. The party-wall statute of loAva has been upheld as a reasonable regulation of rights of property, and on account of long-con- tinued acquiescence.^" It is said that such a law is a valid exercise of the police power because it prevents disputes and unseemly contentions between neighbors; but it does not ap- pear how the law tends towards that cud. In IMassachusetts the colonial law has been held to be abrogated by the con- stitution of the state, because repugnant to the latter.^' Where l)arty-wall rights liiivc iilways been recognised, they constitute original limitations oi- sei'vitudes ujioii the right of property, and as such are not liable to constitutional objection. This seems to be the law of Frauet! under Sections ()(>() ami (iOl of the Civil Code, which has become also the law of Ijouisiana.-'- Under such a law the presuiii|)t inn is, Ihni in all i-i'cent trans- fers Ihe proj)ei'1y has been ;M'i|uiiT(| ciint (ni(V<. ^'et a French jurist calls Ihis Ici^islalion "one dj' llic mosl ritnnid.'ililc im- I)airments of 1 In- |n'inci|ilc iA' 1 lie inviolability nf pfoperty rights •-:7 I'russian L:i\v April IH, IS7!t, ^"'Swil't, v. (!aln:iii. 102 lown, Fron.-li Law Juih- '1\, ISO.'-). L'OO, Wl !>. 1{. A. MVl. 28 Hoe Act. of IllinniH .Fiinc U7, ••'! Wilkilis v. .Icw.MI, III!) Mass. 1885, Sec. 7r,; Act .Juno 30, 188r,, 29, 29 N. E. 214. Sec. 2. ^" Lnrclin v. .Tackson, 9 Mart. O. 2" Inwa, Sfnitli ('ariiliiia, MisHis- S. 724, 1821. Hi|>|>i, LouiHiana; StimHon, Art. 217. § 444 PARTY WALLS AND DIVISION FENCES. 47I which can be iiuagmL-d. The age of the institution does not alleviate its exorbitant character. "•■^•'^ § 444. Division fences.— The oblij^ation to contribute to the expense of partition or division fences is very much more common than the obligation to join in the erection of a party wall.^^ As the fence is a common measure of protection to both the neighboring owners from the trespass of each other's cattle, the obligation of common contribution to its expen.se may be regarded as a legitimate police regulation. An owner moreover inevitably gets the benefit of his neighbor's fence, while the wall of his neighbor's house affords him no advantage unless he uses it for building his own house. The justice of the contribution is therefore evident, especially since the law does not require it where an owner chooses to let his land lie open.^^ There is a strong equity that he who has let his land lie open until the adjoining owner has constructed the entire division fence should be compelled, when he encloses his lot and receives the benefit of the fence erected by his neighbor, to make satisfaction for the just proportion which he ought to have built.-^*^ The obligation seems, however, to rest in part also upon the consideration of mutual economy, for the owner cannot evade his obligation by building a few feet from the line, unless he desires to dedicate the strip left un- enclosed as a road."" In the case last cited, the court said that it would assume the validity of the legislation, and the ({uestion of constitutionality does not appear to have been seriously raised in any ease.^^ 33 Ducrocq Droit Administratif, 38 See McCormiek v. Tate, I'O 111. Sec. 1347. 334; Eust v. Low, 6 Mass. 90; Hol- 34 Stimson Am. Stat. Law, 2182. laday v. Marsh, 3 Wend. 142 ; Shri- 35 Jones V. Perry, 50 N. H. 134. ver v. Stephens, 20 Pa. St. 138 (leg- "It is not the policy of the law to islation going back to 1700). As to compel a party to maintain a fence legislation providing for common for which in consequence of laying fences enclosing the lands of a his land or part of it in common in number of proprietors for protec- good faith he has not any longer the tiou against stock, in the place of slightest occasion. "—Castner V. Rie- many fences for particular tracts, gel, 54 N. J. L. 498; Smith v. the cost being assessed upon the Johnson, 76 Pa. St. 191. owners benefited, sec Rusboo v. Com- 30 Hewitt V. Watkins, 11 Barb, missioners Wake County. 93 N. C. 409. 143, 1885. 37 Talbot V. Blacklege, 22 la. 572. THIRD PxVRT. FUNDAMENTAL RIGHTS UNDER THE POLICE POWER. FIEST: LIBERTY. CHAPTER XXI. PERSONAL LIBERTY. XXTT. riVIL LIBERTY: RELIGIOUS AND POLITICAL. XXIII. CIVIL LIBERTY: ECONOMIC. SECOND: PROPERTY. VESTED RIGHTS UNDER THE POLICE POWER. XXIV. APPROPRIATION, INJURY, AND DESTRUCTION. XXV. CONFISCATORY LEGISLATION. XXVI. PUBLIC GRANTS AND LICENSES. XXVII. SOCIAL AND ECONOMIC REFORMS. THIRD: EQUALITY. XXVTTT. EQUALITY AS A POLTTTCAI> PRINCIPLE. XXIX. PARTICULAR BURDENS. XXX. SPECIAL PRIVILEGES. XXXI. TLASSIFICATION AND DISCRI^HNATION. 474 THIKJ) PART. FUNDAMENTAi. RIGHTS INDKR TlIK POLICE POWDER. FIRST. LIBERTY. CHAPTER XXI. PERSONAL LIBERTY. § 445. Different aspects of liberty.— The Fourteenth Ani.Mid- ment has ^ivon to liberty, property, and equality the hijjjhc.st protection of which rights are capable under our system of government, and has thus stamped them as the funtlameutal rights of the individual.^ Of these the right of liberty is necessarily the vaguest in content, since it is quite clear that liberty must be understood as being subject to restraint, and the mode and quantum of restraint is the question at issue. We can form a tolerably definite conception of personal liberty in the narrowest sense, 1 The right to life. — It is almost for the prevention or stopping of a matter of course that the police crime is that committed in the sup- power does not exteud to the takings pression of a riot. The laws of of human life. Not even the most imminent danger of contagion would justify the killing of a man, whereas it justifies the killing of animals. An exception from this elementary principle is however ap- parently presented in the case of justifiable homicide by an officer of the peace. The homicide may occur either for the purpose of preventing or stopping a crime, or for the pur- pose of preventing an escape. The execution of a sentence of death need not be here considered, as it belongs to criminal justice, and not to the police power. Tlie most con- spicuous case of justifiable homicide Massachusetts and of Illinois pro- vide that if in the efforts made tn suppress an unlawful a.ssemlily, and to arrest and secure the i)ersoii8 composing it, who refuse to dis- perse, any such jiersous, or any per- sons present as spectators or other- wise, are killed or wounded, (In- magistrates and officers and persons acting with them by their onler, shall be held guiltless and justifie'l in law. (Mass. Rev. Laws, ch. 211, § (i; 111. Crim. Code, § "J55 ; sec. also, Calif. Penal Code, § 7:^1, N<>\\ York Code Crim. Proc. § 114, Bish- op's Xew r'riminal Law f, § S49, No. 5: II. § ()55, Xo. 4.) The state is 475 47G PEESONAL LIBERTY. §445 i. e. the liberty oi' the body, and exemption from servitude; and this will be the first form of liberty that will be con- sidered. The liberty of private conduct is next in order of importance to the individual, and may be regarded as practically enjoy- ing the same immunity from restrictive legislation as the lib- erty of the body. The freedom of purely social intercourse, which leaves the legal relations of the parties to each other un- affected, is in some respects part of the liberty of private con- duct, and even where not carried on strictly in private, is, on principle, a matter of no concern to the state, and there- fore on the whole exempt from the police power. Civil liberty is the freedom of entering into legal relations with others, and of appealing in any manner to public opinion or sentiment. This liberty must be subject, to manifold re- straints in behalf of the public welfare, and as a constitutional right has no specific content. To say that the police power must respect liberty is therefore an unmeaning phrase. But here confrontetl with a menace to the most elementary condition of its existence, namely, the preservation of common peace and security, and does what is necessary to avert im- mediate destruction of life and projicrty. The police power is then merged in the higher power of the state to defend its own existence. Where the crime to be prevented is not dircted against public peace, but otherwise a felony, the justifi- able homicide will in most cases be closely analogous to self-defence; if nvent the es<'ape. The officer may therefore use his weapon in orerately kills, when it is in liis power to disable merely, sluuild not be held to be justified. J$ 446 LIBERTY OF THE BODY. ( ( certain spheres of liberty may be singled i)ressiou of •' HisHfill V. DuvisoM, (55 ('oim. l.s:5; ^DulHcM \. Willi.-irnsport Scliool A1m'.-1 v. Clark, S4 <'al. 226; Bliio v. District, KiU I'a. SI. 47(>; State ex J^carli, ir,') liKJ. 121, no N. E. 89, rol. I'rpcman v. Zimriioriiiaii. 8(5 r.O L. H. A. <;i: ill Die latter case Mimi. Sr^.^, 58 1>. R. A. 78, 90 N. W. (•(>nii>iilHioii couM he avoi'l'-il by 7s;i. Htayiiiy away froni hcIiodI. ^.Morris v. ( 'uluinbiis, 102 (la. "I'oMh v. Breeii, \(\7 111. (>7 ; 792, 42 L. U. A. 175; Stalo v. May, Htuto ex rel. .X.laiiiH v. Hur(lj,'e, 95 120 N. ('. 999. lit I,. I{. A. 588; Com. Wis. :J9ii. :'.7 h. H. .\. 157. V. Pear (MaHH.). (i(i N. E. 719. " See, also, § 584-580. § 449 LABOR CONTRACTS. 47(j vagrancy, but it was also gciu'i-ally eoiisidcriMl a jtrop.-r lunc- tion of the police power to secure, if necessary, by cojujiuisory measures, to agriculture and industry an adequate and st<'ady supply of labor. The policy of the English legislation did not extend to domestic service, which in (lermany was hrld to be subject to similar measures in the interest oi" property and security.^'' At the present day it is only necessary to refer to this kind of labor legislation in order to j)oint out its un- constitutionality. The refpiirenient to serve would beyond any doubt be involuntary service forbidden by the Thirteenth Amendment of the federal constitution, antl a statutory min- imum term for labor contracts is an indirect form of com- pulsory service. Compulsory public service, civil or military, stands of course on a different footing.' ^ The practical (jues- tion at the present time is whether the constitutional freedom of the laborer should be interpreted to mean, not only that he cannot be compelled to enter a service against his will, but that he cannot even be forced to continue in a service which he has voluntarily entered under a contract to remain for a stated period of time. § 449. Unreasonable contracts to serve.— A relation of serv- ice may rest on voluntary contract, and .yet be contrary to public policy. This may be so for the reason that the con- ditions of the contract subject the servant to an arbitrary dis- cretion. So it was held that a contract absolutely indefinite except as to time, leaving the master to determine what the service should be, and the place where, and the person to whom it should be rendered, was contrary to the principle of liberty as declared in the Massachusetts Declaration of Rights.'- Or it may be that the contract is for an unreason- able length of time. In England there is authority for sus- taining contracts to serve for life,'-^ but this is hardly the law in America. In Indiana a w^oman who had bound herself by indenture to serve as a housemaid for the term of twenty years was set free on habeas corpus,^^ it being held that the enforce- ment of personal service under such a cont'-act would be "pro- loRoscher Nationalockonomio, § i'' Wallis v. Day, 1' .M. & W. l'7.*^; 7(5. Broom's Constitutional Law, p. ll.'i. iiMechem Public Officers, § 241- »+ Matter of M;ir.v Clark. 1 243; Kneedler v. Lane, 45 Pa. S.^S. Blackf. 122, 1821. 12 Parsons v. Trask, 7 Gray 473. 4^0 PERSONAL LIBEETY. § 450 duetive of a state of feeling: more discordant and irritating than slavery itself." The civil codes of California, ^Montana, North Dakota and Sonth Dakota^^ provide that contracts for personal services are not enforceable against the employee for longer than two years. The German Civil Code provides that if a contract of service is entered into for life or for a period longer than five years, it may, after the expiration of five years, be terminated upon six months' notice."' In the absence of a statutory provision the courts must determine what is an un- reasonable contract of service. Such a contract being voidable, non-performance or abandonment would not give rise to a cause of action for damages. § 450. Contract labor laws.— The breach of a contract to serve which is reasonable in its terms, like the breach of any other contract, gives a common law right of action for dam- ages. As against a common laborer, this remedy is as a rule practically of no value. A court of equity will not, however, enforce a contract to serve specifically. "The rule, we think, is without exception, that equity will not compel the actual, affirmative performance by an employee of merely personal services, any more than it will coinpcl an employer to retain ill his personal service one who, no matter for what caus(\ is not acceptable to him for service of that character. * * * Kclief of that character has always been regarded as imprac- ticable."'^ The question whether the legislature is competent to i)ro- vi the present day.'^ Could sim- il;ir h'gisiation Iw inl I'odueed into AiiHTieaii tropicnl posses- J^Cal. § ]9H(I, Muiii. § 2675, N. Colonies. — For iiulentured l;ili(ir in I). 8 41(i.'i, S. I). S '-'TiW. tlie Anicrifan Colonies sec the Ser- Kijn'Jl. vant Act of Virfrini:i of 1 TOn, TI(Mi- 'TArlliiir V. Oakcs, iV.\ hVil. .TIO; injr's Sl;i1ntoH 111. p. 117. .mmI Tolf'li) &r. |{. Co. V. P('nnHyIv;nii:i l'.nii-c Ivoiioitiir llisldi-y of \'ir- Cii., r>4 Ked. 7.30, 7 \'.\. S^'inia, iliap. Id. In sfvcial (iernnin • "See Alloynr Irrhui'l, 'rropica! st.-itcH niulcr rcci'iif stiihilcs :i wii ('(iloiiizalioii, ciiap. V. Tlw Incicn- fnl hrfinh nf ihimI iiilmr contr.'icls lured Ij!il)or SvHtein in tin- I'.rilisli is jainislnil ; iimlcr nlilci- hiws, spi' eifie eiifort'eineiil iiimI crimin.-il pun- §451 CONTRACT LABOR LAWS. 4j^l sions without creating "involuntary servitude?" The iV-nal Code of Hawaii! '-^ enforced contracts to serve for not excee ConHjiirar-y ;ui'l I'roteclion to ('oiin. Act. 1895, cli. 87; I'd. Ifcv. I'n.pfrty Act IMTf,. :\H uu<\ :'.(• Vi.'l. (',,. ■-•TOen. Stat. ISOn, p. 2668. 11, § 1. ■-•"Minn. (Jen. Stsil. IS'M, § 6038; § 453 PRIVATE CONDUCT. 4t5;i performance by the corporation depends upon performance by the employee ?2^ The cases in wliich speeiiie cnftn-et'uu'nt of labor contracts was refused by courts of eciuity. leave this question open, for in those cases it did not appear that the laborers were under contract, and it was distinctly recognised, that there might be liability to criminal i)UJiishment, even if there could be no equitable relief.""' We may then conclude that in a business affected with a public interest the violation of a contract of service which is essential to the carrying on of the business, may, as a matter of constitutional power, be punished. LIBERTY OF PRIVATE CONDUCT. §§ 453-457. § 453. Legislative policy. — The conduct of tlie individual in the privacy of his home, not involving or affecting his legal relations to other persons, is generally exempt from the opera- tion of the police power. This sphere of life is not regarded as a legitimate subject of public regulation, and it is recog- nised that regulation Avould in most cases be unenforceable. Non-interference with purely private acts is therefore a firmly established principle of legislative policy. This is especially apparent in the legislation against vice.''^ Although gam- bling for money involves the transfer of property and is there- fore not strictly private conduct, it is as a rule forbidden and punished only if carried on in public or quasi-public places.'*^ 29 See People v. N. Y. Central &c. ter to a uon-consenting party may R. Co., 28 Hun 543, holding that a be made an oflfense, as may be the strike does not excuse a railroad mailing to a consenting party if it company from performing its du- is a matter of business. Grimm v. ties to the public. However, this United States, 156 U. S. 604; An- must be regarded as an open ques- drews v. United States. 162 U. S. lloQ^ 420. But when the law attempts to 30 Toledo &c. R. Co. v. Pennsyl- punish the carrying on of purely vania Co., 54 Fed. Rep. 730; Arthur private correspondence though of an V. Oakes, 63 Fed. Rep. 310. immoral character (arranging for 31 As to sexual vice see § 235, 240, an assignation, etc.), it probably supra. The law deals with "open oversteps the proper sphere of the lewdness," "open and notorious" police power. See United States v. state of adultery, etc. Conduct in Martin, 50 Fed. Rep. 918; Unitcl the presence of another non-con- States v. Lamkin, 73 Fed. Rep. 459. senting party cannot claim to be 32 For prohibition ..f gambling in private. Fowler v. State, 5 Day private places see Greenville v. Kem- (Conn.) 81. And so the sending of a mis, 58 S. C. 427, 50 L. R. A. 725. sealed letter of an obscene charac- 484 PERSONAL LIBERTY. § 454 The policy of prohibitory liquor legislation is questioned chiefly on the ground that it interferes in its effects with the freedom of private consumption. Even the advocates of pro- hibition concede that the state has no concern with the private use of liquor. "The opponents of prohibition misstate the case by saying that the state has no right to declare what a man shall eat or drink. The state does not venture to make any such declaration. A man may debauch himself in private and the state w411 not interfere, unless the debauchery creates a public nuisance or disturbs the public peace. * * * j^ is not the private appetite or home customs of the citizen that the state undertakes to manage, but the liquor traffic. * * * This is the ground of Prohibition. * * * If by abolishing the saloon the state makes it difficult for men to gratify their private appetites, there is no just reason for complaint. "•^■^ §454. Private consumption of liquor.— It is therefore signiticant that the j)()liey of prohibition stops short of dealing with the private act of consumption. Where the sale or giving away of intoxicating liquors is prohibited either absolutely or under stated conditions, the statutes either expressly except the giving away at private houses as an act of hospitality or to members of the family or household, or such an exception is implied by the courts. •'" In Pennsylvania a statute prohi])it- ing the furnishing of liquor to a person already visibly affected by its use was held not to apply to a farmer who treated a number of friends and farmhands in his barn. The court said : "The provisions of the act of 1887 are not directed against tlu^ use of liquor by the individual citizen, and they do not inter- fere with his right to supply his table with them to his family or his guest." But the act of collecting friends already under tlic influence of liquor was looked upon as one affecting not only Ihe individual. 1)ut his iiei-^lihors and the public as well. There was also proof that the price of the liijuors furnished was ehnrgcd up against tiie wages of the men who di-ank it, which )iia.3 N. K. Proliii.iti.in; see, aJHO, § 22.''). 4H1 ; Alhrcdit v. IVoplo, 78 III. r.K). :nHtatc v. .Tones, .39 Vt. .370; •■'g Altcnhurj,' v. Com., ]2() I'a. SI. PowerB V. Com., 90 Ky. 107; Key- 002. nol meaning of a sale or uf)on tbe j)resumable iiiletit of the legislature, 'i'he courts ]iublic welfare, where the theory of r(|ii;ilily of rights prevails. It Kx |):iit.' Smilli, i:i.j Mo. L'l23, ••"• Hechiii;,^,.,- v. Maysville, 22 Ky. 33 L. H. A. (306. l-iw Uvik 480, 49 L. li. A. 114. CHAPTER XXII. CIVIL LIBERTY: RELIGIOUS AND POLITICAL. FREEDOM OF RELIGION. §§ 4.5.S-470. ^458. The constitutional guaranty. — An expre.s.s fjuaraiity of the freedom of religion is found in every American eoiisti- tution. Congress is forbidden to make any law respecting an establishment of religion, or prohibiting the free exiTcise thereof,! and in substance the same limitation of jxjwer re- strains every state legislature. The provision of the constitu- tion of Illinois may be quoted as comprehensive and typical: "The free exercise and enjoyment of religious profession and worship, Avithout discrimination, shall forever be guaranteed, and no person shall be denied any civil or political right, i)rivi- lege, or capacity, on account of his religious opinions ; but the liberty of conscience hereby secured shall not be construed to dispense with oaths or affirmations, excuse acts of licentious- ness, or justify practices inconsistent with the peace or safety of the state. No person shall be required to attend or support any ministry or place of worship against his consent, nor shall any preference be given by law to any religious denomination or mode of worship. "^ The effect of this constitutional guar- anty will appear from a consideration of the various kinds of possible legislation regarding religion. § 459. Repressive sectarian legislation.— The law may con- ceivably undertake to punish or restrain expressions of sen- timent having reference to religion, which are contrary to some particular religion, faith ov doctrine. Sectarian legisla- tion of this character, in addition to the common law punisli- ment of heresy under the writ de haeretico comburcndo, began in England in the fifteenth century,'' and was particularlx active during the reigns of the Tudors and Stuarts, lilack- stone'* discusses a considerable number of these laws which Avere in force at his time; they have all since been repealed. Of the American colonies, Massachusetts and Virginia, in the 1 TT. 8. Constitution, First Amend- ^2 H. IV, cap. 15. ment, ^ Book 4, cli. 4. -•Art. II. § 3. 489 490 CIVIL LIBERTY: RELIGIOUS ANDPOLITICAL. . § 460 course of the seventeenth century, enacted laws for the repres- sion of Catholics and Quakers, but these laws disappeared in the course of the eighteenth century. The absence of all repres- sive sectarian laws constitutes the principle of toleration, first proclaimed in Rhode Island's charter of 1663. This principle is amply secured by the constitutional guaranty of freedom of religion. § 460. Support of church out of public funds.— The state may conceivably, without restraining dissenters, support one religion out of the public funds. This is the principle of the established religion or church. It involves at least the taxa- tion of individuals in behalf of a religion which they do not acknowledge. In ^Massachusetts, the town was at the same time a parish, and M'as under legal obligation to maintain places of worship and ministers. In the seventeenth century, the law was modified so that every Protestant could demand that his contribution should go toward the support of his own denomination, and in this form the principle was carried into the constitution of ^Massachusetts of 1780, and was retained until 1835, when it was superseded by the eleventh amendment to the state constitution.'' There is now no American state in which the power of taxation is exercised for the support of one religion, oi- a number of religions, and all legislation to that effect would be contrary to a provision, that "no person shall be refjuired to attend or support any ministry or place of worship against his consent." The abandonment of such I)ublic support and the emancipation of the civil status from the rtHiuirement of religious sanction or recognition, are the main points in the establishment of the principle of the separa- tion of church and state. ^ 461. Religious disqualifications.— Freedom of religion is impaired l.y Ihf nM|nirement of religious profession of .some sfiit tor the fxercisc of iMihlic lunctions. This was the policy oT till- Knglish ( 'or|)or;i1 ion .iiid Test Acts. The (irst constitu- tions of New ll;iiii|»sliirc .-iiid of N'ortli ;ind Soutli Cnrolina cxcludoi noil ri'otcslants l"i-oni all oi- from the highest olfices; New Jers«'y atnl \'<'i-inon1 pcoviili'd oidy 1h;i1 no I'coti'stanls ■■Tin- liiHtdi-y of li'KiHlalioii in r.'l v. 'l":ivl«>r, !• ( 'r.incli. C! ; mIso .-ic- Viryiiiiii \v:ih cojiiiilicaliMl liv (lie ( oiint (if lo{j;i.sliition of 1784 in Rey- .(infiHcatinii il)lc unless carefully re- stricted to |iui(l.\- hislofical passages, is not a religions oxov- cisc, whcthci- scctjirian <>v not. A liberal interiu-etation of the constitntion jnight aih)\v such non-seclariau religious iustruc- » Nortli V. lioanl nt' TniHtccH, \'.'>~ " I )tin:iliiic v. liidKinls, ;iS Me. 111. unO; Moore v. Monroe, ("> I l:i. :'.7'.>. '.W7 ; Spiljcr v. Wdliiirn, Ml M;iss. '-SI.'Uo ox rcj. Weiss v. District I'J7. Hoani, 7() Wis. 177. • " I )(iii;iti(i<' \. I{icliar. § 464 PROTECTIVE AND RESTKJCTIVE LEGISLATION. 4ut the right of ;itt;i.d< ;ind public propaganda (lo<'s not justify the violation of public order and coMinion decency. The olVense of blasphemy, to l)e consistent with tiie constitution, should not be held to be coni- 17 H .idhiiH. JiKi. '"- "'"'''• •'••'••'• § 4f)(j REGULATIVE LECISLATIOX. 495 plete without calumny, detraction oi- abusive languaj^c; it should in (illici- words l)e treated like profaneness, upon prin- ciples ;ipi)li('able to ;ill nuisances. g 43G. Regulative legislation.— The statutes of the different r.tates show a considerable amount of regulative legislation regarding matters of religion.-^ The bulk of it deals with the pi'operty rights of religious societies. The exercise of religion practically requires the use of property, but it does not follow that its free exercise involves uncontrolled property relations. Where property is placed in the service of religion, it is done almost universally through the machinery of organised asso- ciation; property devoted to religious purposes is regularly j)roperty belonging to some society. The holding of such prop- erty practically requires either a trust or incorporation. Trusts as well as corporations are subject to legislative control, with this difference, that trusts are free, unless specially restrained, while corporations require positive legislative sanction. The statutes of all the states have made provision for the formation of religious societies as property holding bodies. They are not always called corporations ; in some states a distinction between incorporated and unincorporated societies is recognised, and in one state, Virginia, the grant of corporate charters to churches is forbidden. But practically the societies formed under statutory provisions enjoy facilities for exercising prop- erty rights which give them substantially a corporate charac- ter. In providing for their formation, the statutes to a great extent regulate the organisation of the societies, requiring a minimum number of members, specifying the number of trus- tees, providing for their election, &c. Such regulation operates practically as a restraint, but is hardly felt as such ; for the statutes are generally framed for the convenience and accom- modation of the societies, and not for their control. Often the plan of organisation peculiar to the church is adopted or sanc- tioned by the statute.^^ Moreover societies may generally or- ganise themselves irrespective of the statutory provisions, placing their property in the hands of trustees subject to the 21 See W. II. Roberts, Laws re- ~- See the statutes of New York lating to religious corporations, applicable to cliflferent denomina- Philadelphia, 1896. tions. 496 CIVIL LIBERTY: RELIGIOUS AND POLITICAL. §466 general rules of equity and waiving the possible advantages of corporate capacity.-^ There are, however, statutory provisions evincing a clear legislative policy to control or restrain the holding of property by religious organisations. The strongest provision of this character is probably to be found in § 26 of the Act of Con- gress of March 3d, 1887, requiring that lands of the Mormon church should be held by trustees appointed, on the nomination of church authorities, by the probate court of the territory. Such a provision, applied to only one denomination, is not con- sistent with religious equality. In all states a maximum amount of property is fixed, beyond which acquisitions are for- bidden; often also the power to take by devise or bequest is limited ; in :Mississippi the Constitution prohibits all devises of real property to religious corporations and associations. These provisions are derived historically from the English statutes of mortmain, and are to the' present day frequently designated by that name. Sometimes they are confined to corporations, so that the limitation can be escaped by avoiding corporate organisation.^^ Whether they are regarded as manifestations of the police power or as rules of property, or, in so far as they affect corporations, as conditions annexed to the grant of cor- porate capacity, their constitutionality has never been ques- tioned; and it may therefore be safely stated that religious liberty does not preclude the regulation or restraint of the right to hold property for religious purposes, and does not inii)air the well understood and historically established power of the state over the corporate holding of property or the hold- ing of property upon charitable and eleemosynary trusts.^^ Whether freedom of rc^ligion requires freedom of association !!■■» See Alden v. St. Potor's Parish es affected. Differeiu-es of liinita- Churcli, ISH III. (iiU. (inn of property capacity imposc.l -1 Allien V. St. I'eter'K Parish hy the lej^islatun' wonhl Hccin to ("Imrch 158 III. 631. constitute a discrimination in favor •.:r. Under the statutes of New of the chun-hes havinj; a larfjor ca- Vork, jtrior to the {rencral provision jjacity, inconsistent with constitu- niadc liy chap. 35, General Laws, § tional <'c|iiality. Thr first }j;ciicral 12 difTorent limits were fixed to statute of New York for the hold- Ihe amount of |>ro|)erty which in- in^ of property by churches (vVct corporated churches of different de- April (5, 17S4, chap. IS) recited the iiominationH were allowed to hold, "illilteral and partial distribution Pr(d)ably sindi limitationH haliibited ;•'- but also thai prayer and encouragement and direction of the thoughts of the p;i1ient without recommending or administering any drug or medicine, or giving any course of ])hysical ti-entment, is not covered by tlie statutes I'egulatiiig the ])raeli('e of medi- cine. •'•* The private non-professional application of faith cure is probably protected by th(^ guaranty of religious freedom. In England and New Yorl< tlie neglect to c;ill in medical aid is under pertain eii'cumstanees made a ci-inMnnl oCreiise.'" A stat- nte oi" this kind, especially if exception is niadi' \'<>y llie ease of 2" § 174, supra. People ex rol. Cartinill v. Rochoatcr, :>'> Ro Frazeo, 63 Mifh. .396; State 14 Ilun 166. V. DeriiiK. S4 Wis. r^Hr,, 10 L. R. A. ■'-• Slalc v. Riiswell. 40 \ob. l.'5S, HM; Anderson v. Wollintrtoii, 10 i:4 1j. R. A. 6S. KfuiB. 173, 'J L. I{. A. 110, 1888; •"' State v. Mylo.l. I'O U. 1.6312,41 Chicapo V. Trotter, 1.36 111. 430. An-I !-. U. A. 428. See § 133, xupra. Hee Com. v. PlaiHte.l, 148 Mass. 37.'"), •31 anolitical writings in such 37 48 Vt. 444. 500 CIVIL LIBERTY: RELIGIOUS AND POLITICAL. § 469 and when the children stayed away on Corpus Christi day, they were expeUed, and reinstatement refused, except upon condition of a promise, that the rules of the school should be complied with in future. Thereupon the parents brought an action, which however was dismissed. In sustaining- this decree, the Supreme Court said: "Article III. [of the con- stitution, guaranteeing religious freedom] was not designed to subjugate the residue of the constitution and the impor- tant institutions and appliances of the government provided by the enacted laws for serving the highest interests of the public as involved in personal condition and social relations, to the peculiar faith, personal judgment, individual will or wish of any one in respect to religion, however his conscience might demand or protest. In that respect it is im])lied that while the individual may hold the utmost of his religious faith, and all his ideas, notions and preferences as to religious worship and practice, he holds them in reasonable subservi- ency to the equal rights of others and to the paramount interests of the public as depending on and to be served by general laws and uniform administration." In Simon's Executors v. Gratz^s the plaintiff asked for a continuance of his case on the ground that he had scruples of conscience against appearing in court or attending to any secular business on Saturday. The continuance^ was not granted, and in sustaining this decision the Supreme Court said: "The religious scruples of persons concerned with llic administration of justice will receive all due indulgence that is comi)atiblc with the business of the government; and had circumstances permitted it, this cause would not have been ordered for trial on the Jewish Sabbath. But when a con- tinuance for conscience' sake is claimed as a right and at the expense of a Term's delay, the matter assumes a dilTcrciit aspect." Conflicts siich as those mentioned can as a rule be avoided by a projxT administration ()\' existing laws, and it would seem to be the constitutionni duly of ]MiMic' nnlliorilie's to rceoneilc, .'is fiir ;is tbt-ir discfd luii ;illo\vs. civic ;mi(I religious obligation. A rcason;il>lc rcgnrd should be paid in the recpiire- nient of public service to religious scruples, but no religious 88 2 Pa. 412. § 470 SUNDAY LAWS. 501 sect should be allowed to claim ahsolut*' exemption irom a general civic duty. Freedom of religion being a constitutional right, it would seem to be the proper function of the courts to determine what is reasonable on either side. This prin- ciple is not inconsistent with anything that was said either in the Vermont or in the Pennsylvania case, but it may be doubted whether it was correctly applied in Vermont ; for the absence of a limited number of children for six days in the year (which was all that was claimed) can hardly be said to disarrange the public school system. Conscientious scruples against the bearing of arms cannot relieve from general military duty; some, but not all, states excuse from service in the militia on that ground, but only upon payment of a proper equivalent,^^ and it is not claimed that the ex- emption is a matter of constitutional right. The constitution of Tennessee provides: "No person shall, in time of peace, be required to perform any service to the public on any day set apart by his religion as a day of rest. "^"^ $ 470. Sunday laws.— It has been shown before that the enforcement of Sunday rest is regarded as a measure of purely secular and civil character, and as such its constitu- tionality is firmly established.^^ It is however obvious that the institution of the Sabbath rests historically upon religious injunction, and the connection of the secular law with the law of Christianity has been judicially recognised.^2 j^ Minnesota and Dakota the acts forbidden are described in the statute as serious interruptions of the repose and religious liberty of the community ; it seems to be thereby implied that religious liberty involves a claim to have others respect one's religious feelings and practices. The argument of religious liberty and equality has, on the other hand, been urged against the Sunday laws on behalf of those who observe another day as a day of rest. It has been replied to this argument that the law does not interfere with the religious observance of any other day.'*^ A stronger argument may be found in the necessity of uniformity of the day of rest, if peace and quiet is to be secured. If one day is to be 39 New York 1 Rev. Stat. p. 93, 4i §§ 184-186, supra. § 5. 42 State V. Ambs, 20 Mo. 214. 40 Constitution, ' Art. XT, § 15. 43 Specht v. Com., 8 Pa. St. 312. 502 CIVIL LIBERTY: RELIGIOUS AND POLITICAL. § 47I selected, it is a recommendation rather than an objection, that the day chosen conforms to the voluntary practice of the vast majority of the people, since the choice should cause as little inconvenience as possible. Where, however, the pur- suit is not carried on in public, the reason for the uniformity fails, and the claims of those who observe another day are entitled to consideration. In a number of states persons keeping the seventh day as a day of rest (Jews and Sabbata- rians) may Avork on Sundays provided their work do not disturb others.^^ An exemption of this kind in favor of Jews was held imconstitutional in Louisiana as granting special privileges to a class of the community.'-"' But when we consider that the prohibition of work carried on in private is justifiable only on the ground of protection against an unfair advantage over those who rest, it is clear that there is no valid reason for the prohibition where another day is observed, and that on the contrary such prohibition creates a special burden. All laws should scrupulously respect the principle of religious equality, and as experience shows that the exemption within the bounds indicated is quite feasible, it should be recognised as a constitutional right. FREEDOM OF SPEECH AND PRESS. §§ 471-479. § 471. The constitutional guaranty and censorship. — The first amendment of the federal constitution provides that Congress shall make no law abridging the freedom of speech or of the press, and an analogous provision is found in the constitution of every state. Freedom of speech and press aft- thus generally treated togetber as virtually one and the same right. Viewed from the standjioint of the police poM-er, liowevcr, it is clear that speech, unless in a ])nblic ass(>mbly, could ncviT 1h' contfollcd in tlic same iiiaiiiirr ;is the pi-css. The in'iiiling jifrss, oji tlic oilier hand, was in roiMiicr limes, as a maltrr of course, sul^jcclcd to the most .iinpli' police coiiti'ol. Till' bistoi'y of tbis control is set lortli in a note In l\'. r,l,ic|ly Id certain lines on llie Indian and .Mexican frontiers i'ov the connection of iniiit;ny posts and stations, cnnstructeil, owned ;ind ojierated by the fJovornment in lime of peace as well as war. CKev. Stat, 'i'itle Seo Stephen, History of tlio Stutc v. McKce, T.'i Conn. IS, 49 L. f'rimiiiJil Tiinv of EiiKjaiid, eh. R. A. M2. XXIV. ^Book JV, p. 150. t State V. Van Wye, 136 Mo. 227; •' T) Rep. 125. Re BarikH. 50 F{' the I'nited Stntes, with intent to excite i)opular disconlcid, and dissat isTaclion a^'ainsl th<' scheme of policy instituted and on ti-ial in the rnite(| States • * » _ to subv<'i-t. ri'i)ul)licau ' Hi-v Spjirf V. United SUitfs, l.'iO *< Sc- \Vli;iit..M, St;itr Trials. I', s. r,i. |.i. i"i 1 II. ^ 475 SEDlTIOUb LIBEL. 509 institutions and free governments, to involve the United States and the Commonwealth in civil war, desolation, and anarchy, to procure by art and force a radical change in the principles and form of government without the free will, wish and con- currence of the people. The court charged the jury, that it was no infraction of the law to publish temperate investiga- tions of the nature and forms of government, and that they must decide whether the defendant as a factious and seditious person with the criminal intentions imputed to him in order to accomplish the objects stated in the indictment, did make and publish the writing in question. The jury rendered a verdict of not guilty.^ This was probably the last prosecution for seditious libel instituted in this country, and the offense may be said to be practically obsolete. Custom and public sentiment have come to sanction the widest latitude of criticism of the government, although in most cases it must be impossible to make out, by legal proof, the truth of general charges against a statesman or official or his administration. Where the criminal law is codified, the definition of libel often fails to cover sedition and com- prehends only the defamation of individuals.^*^ The most ample freedom of discussion of public affairs is now gen- erally understood to be guaranteed by the freedom of speech and of the press, and the long continued practice of tolera- tion may be accepted as sufficient warrant for modifying the interpretation of the express constitutional guaranty to that effect. § 475. Attacks upon government in general — Anarchism. — A proposition to forbid and punish the teaching or the propagation of the doctrine of anarchism, i. e., the doctrine or belief that all established government is Avrongful and pernicious and should > be destroj^ed, is inconsistent with the freedom of speech and press, unless carefully confined to cases of solicitation of crime, which will bo discussed presently. As the freedom of religion would have no meaning without the liberty of attacking all religion, so the freedom of political discussion is merely a phrase if it must stop short of question- ing the fundamental ideas of politics, law and government. <> Kespublica V. Dennie, 4 Yeates, lo Illinois Criminal Code, § 177, 57, 1805. New York Penal Code, § 242. 510 CIVIL LIBERTY: RELIGIOUS AND POLITICAL. §476 Otherwise eveiy government is justified in drawino- the line of free discussion at those principles or institutions, which it deems essential to its perpetuation, — a view to which the Russian government would subscribe." It is of the essence of political liberty that it may create disaffection oi- other inconvenience to the existing government. otluM-wisc thci-c would be no merit in tolerating it. This toleration, howevei-. like all toleration, is based not upon, generosity, but on sound policy: on the consideration, namely, that ideas are not sup- pressed by suppressing their free and public discussion, and that such discussion alone can render them harndess and remove the excuse for illegality by giving hope of their realisa- tion by lawful means. § 476. Incitement to crime and violence. — Freedom of speech linds. however, its limit in incitement to crime and violence. By the principles of the connnon law, the procure- ment of crime is in itself a criminal act,^- antl a conspiracy to commit a crime is criminal though the end is never accom- plished or even undertaken.' ■'• 'Plic prohibition of acts pun- ishable at coiiimon I;)av is of course within the constitutional power of the state governments. Therefore a statute may validly forbid all speaking and writing the object of which is to incite directly to the commission of violence and cimuhv Such was found to be the character of the utterances of the anarchist leaders in Chicago. Avho were convicted in 1SS7.'^ In the anarchistic ])ropagan(la it is not easy to ihaw the 11 Liu'l Unit expresscil tlic \>r\\\- I'arc, also, '_'ason is, have a good opinion of it. And niriild iHiu/ifiiiiii /(V/i.s' amittil, qui notliing can be worse to any gov- Iciicm ii)sam suhtwrlere intcndU." ernnient tlian to endeavor to i)ro- i- Bishop 's New Criminal T.aw I, diu'e animosities as to Ihf manage- „ ..j., ment mI" it; this has ;ilways been , , , . ," I' ibid, I, § i:',-_'. looked npiin as a crime, ano no gov- ernment <-an be safe without it is "Spies v. I'r..|dc, li'i: 111. 1, W punished." Kcx v. Tnt.liin. II. dt. Am. St. Kep. .120. p. 4L'4, Bislh.p I. Sec. 4.')(i. Com- § 477 ANARCHISM. 511 line between discussion or agitation that nnist or should he tolerated and methods that are or may be made criminal. It is generally conceded that the state may forbid incitement to crime, and incitement not addressed to a specific person n<»r aimed against a specific person may be brought Avithin tlic prohibition of the law: and the law may go so far as to treat the glorification of crimes that have been committed as contrary to public order and decency ; but the doctrine that crime may under given conditions become justifiable or thai it may have a tendency to arouse the public conscience should not in itself be held to constitute a crime. It is clear that an exposition of social wrong or injustice must be allowed, nor can the necessary liberty of agitation be said to be over- stepped by appeals to sentiment rather than to reason; and if it is said that appeal to sentiment is appeal to passion and may lead to disorder and violence, it must be answered that this was always the plea upon which political agitation was formerly suf^pressed. Not even the fact that an adherent of the doctrine commits a crime is conclusive that the teaching of the doctrine amounts to incitement ;^^ for the crime may as well have been induced by a morbid brooding over conditions which are the cause of social discontent, and some of the most notable of recent anarchist crimes must probably be accounted for on the latter theory. §477. Anarchists' cases. — While thus far the anarchist propaganda has not yet been judicially examined with refer- ence to constitutional liberty of speech, yet the range of necessary toleration above set forth has uniformly been respected in adjudication as well as (until the statutes of 1902 below set forth) legislation. In the Chicago anarchists' case,!*' lY^^Q Sx^preme Court of Illinois naturally required proof of actual incitement, for that was a case of prosecution for conspiracy to murder; the legislation which followed under- took to punish speeches or publications advising, encouraging or inciting the destruction of lawful power or authority,^' but the act was repealed in 1891 witho^^t having received authoritative interpretation, and it is therefore left to con- !!■' Stephen Hist. Criminal Law II, leiitly and recklessly matter likely 360. "It is one thing to write with to produce disturbances." a distinct intention to produce dis- kj Spies v. People, 122 111. I, 1887. turbances, and another to write vio- i' Act June 16, 1887. 512 CIVIL LIBEETY: RELIGIOUS AND POLITICAL. §478 jeetiire what kind of agitation would have been held to be covered by the act. In England a general commendation of the assassination of sovereigns, published in an anarchist paper after the murder of Alexander II. of Russia, was held punishable under statute,^ ^ and a eulogy in the same paper upon the murder of Cavendish and Burke in 1882 was treated as a libel. An incendiary speech l)y Most led to his convic- tion on a charge of unlawful assembly in New York;^*^ he had said, "See that you are ready to resist and kill those hirelings of capitalists," and had uttered other threats which while not contemplating immediate action were held to tend toward a breach of the peace. Yet the address considered as an individual act appears to have been deemed insufficient to support a criminal prosecution; hence the charge of unlawful assembly which required proof of the act of three or more ; and the acclamation and applause of the audience (who were shown to be anarchists) was held to make out a case of par- ticipation in the threats. j\Iost was again prosecuted for an article in which he denounced government as "murder dominion," advocated the murder of the "murderers," and declared that to spare them was a crime. The publication of the article was held to be a violation of Section 675 of the Penal Code, which makes it a misdemeanor to wilfully and wrongfully commit any act which seriously disturbs or endangers the public peace, for which no other punishment is expressly prescribed. 2" ^ 478. Legislation. — A statute was enacted by Congress in 1903 which provides that persons wlio disbclicxc in or wlio are opposed to all organised government, slmll In' forbidden to enter the connlrx' . § 479 ANARCHISM. 513 the duty, necessity or propriety of overthrowing or overturnin',' organised government by force or violence, the publication of anarchistic sentiments, the participation in assemblages of anarchists, and the permission of the use of rooms for such assemblages. An act of New Jersey of the same year (chap. 133) punishes the advocacy of the subversion and destruction by force of any and all government, and the incitement, pro- motion, or encouragement of hostility or opposition to any and all government, also the membership in any organisation formed for that purpose, and the introduction and circulation of pamphlets with the like purpose. In accordance with the principles above set forth the consti- tutional guaranty of freedom of speech and press and assembly demands the right to oppose all government and to argue that the overthrow of government cannot be accomplished other- wise than by force ; and the statutes referred to, in so far as they deny these rights, should consequently be considered as unconstitutional. It is probably true to say that to the extent that anarchist agitation exceeds the bounds of free speech it is punishable under the principles of the common law, and that it is impos- sible to strike at anarchism as a doctrine without jeopardising valuable constitutional rights.22 § 479. Freedom of culture. — Freedom in the pursuit of art, literature and science is, as a matter of history, boimd up with the freedom of religion and of speech and press, for it has practically never been opposed for other than religious or political motives. To-day this freedom is established to the fullest extent. The points where it comes in contact with 22 The most conspicuous attempt measures. The party thrived and to suppress revolutionary doctrine prospered under the law as never and agitation was made in Germany before. The law was twice re- with respect to the Social Democra- newed, but was allowed to lapse in cy. This party likewise advocates 1890, having demonstrated its ab- the doctrine that the existing capi- solute futility. — The Gorman Penal talistic society must be overthrown Code (Sec. 130) prohibits the pub- by forcible revolution. After the lie incitement of diflFerent classes two attempts upon the life of Em- of the population to violence against peror William in May and June, each other, and, both the German 1878, a law was enacted absolutely and the French law forbid public prohibiting the propagation of so- ministers of religion to discuss po- cial-democratic teachings and sane- litical matters in a manner danger- tioning the severest administrative ous to the peace of the state. 514 CIVIL LIBERTY: RELIGIOUS AND POLITICAL. § 480 the police power have been touched iipou before, and a l)rief recapitulation will suffice. The freedom of medical science requires that under the san- itary power no exclusive standards of medical treatment be established, as long as there is respectable scientific dissent from the correctness of the theories which the state might seek to establish.^^ In the matter of vivisection the state should be conceded full power of control, but this power should be exercised with proper regard for investigations for the advance of science.-^ Bona fide scientific or scholarly treatment of offensive subjects should never fall under the ban of the crim- inally obscene; but the state must have power (to be exercised very sparingly) to control the license of art and literature in the matter of indecency and immoralit.y.--'* The state has power to control the education of minors, and in doing so may further the interests of nationality, but where minors are not concerned, the pursuit of truth and learning must be absolutely free. These principles are so fully recognised by the practice of legislation that they stand unquestioned, even if lacking express judicial confirmation. FREEDOM OF ASSEMBLY AND ASSOCIATION. §§ 480-484. 5; 480. The right of assembly. — The constitutions secure the right of the people to assemble to consult for the common good, often in conjunction with the right to petition the government for a redress of grievances. Many constitutions speak expressly of peaceably assembling, and the common law and statutory prohibitions of riots and unlawful assemblies disturbing public order or for the purpose of committing iiiihiwfnl acts, and tlir jiowers of officers of the peace to break them up hy iiiiiiH'dijite executive aclion without judicial process, nrc nol jirt'i-ctcd hy jlic giinranty.-'"' What the con- stitutions i'oi-hi(l is thi- I'cstrainl oi- punishment of the mere act of meeting lor llic |>nr|)osc of rs(His ;i( oiio 2« § L;4!I. time lo tlio King or to oither of the -'• 5 '2'.\H, 'SM. FlonscH of I'arlianKMit iii)oi) prctoiico 2" Bishop Now ( riiniiial Proceed- of j)rnHentinjT any petition or ad- iin- 1. 8 IS.3. dross. Tlie sanio net required every 27 Ho an Knglisli slaliitc (]2 Car. petition HJ^fiicd liy inolitif':d ;iLnt:ition. !$ 482. Constitutional power in America.- In Amei-ic;) noth- <" 39 ficfi. Ill, ••!ip. 70. Itidilcii in (icrriuui.v, rcnnl Cudc, § ■ti r,7 (h'h. Ill, Clip. !!•. v^s. <■■! Hndi uHHociatioriH are uIho for- § 483 POLITICAL PARTIES. 51!j ing similar has ever been attempted by legislation. There has been and is the most absolute toleration of all political associations. This, however, does not necessarily mean lack of constitutional power of regulation. Is there any good rea- son why the legislature should not have power to prohibit secret societies or societies whose members should bind them- selves by oath to obey implicitly the orders of superiors? Such a prohibition would seem to be within the legitimate scope of the police power for the prevention of crime and disorder; for the possibility of abuse of such organisation for criminal purposes is apparent, and it certainly impedes the efficient administration of justice. For support of this view reliance may be placed upon the analogy of the prohibi- tion of unauthorised military organisations, which has been upheld as a measure for the public peace, although the right to bear arms is guaranteed by the constitutions.-* ^ On the other hand, the co-operation of different political societies may be quite essential for their greater efficiency, and is an invalu- able aid to legitimate political agitation. Not having any plausible relation to disorder or disturbance of the peace, it seems that such co-operation could not be validly prohibited. The right of association should then be treated as subject to regulation and restraint on the general principles of the police power for the maintenance of peace and order, and these principles afford to all interests concerned the needed pro- tection. § 483. Political parties and primary election laws. — The primary election laws enacted in recent years in many states undertake to regulate the action of political parties in impor- tant particulars, substituting in some respects absolutely binding rules imposed by the legislature for the former power of autonomous management. Thus presiding officers at pri- mary elections may be required to take the oath of election inspectors, or may even be appointed by civil authorities; the right to vote and the disposition of challenges is provided for ; the appointment of watchers is required ; and the whole conduct of the primary election is placed under a control regulated by law. Moreover, in New York, the election and term of office of the members of the general committee of the party is determined by law, so that the attempted removal •43 § 91, supra. 520 CIVIL LIBERTY : RELIGIOUS AND POLITICAL. § 483 from office by the committee of one of its members has been held to be illegal.^^ Upon what principle can such incisive control of party action be reconciled with the principle of freedom of political association? A certain amount of regulation may be justified on the ground that an individual member or a minority is entitled to protection against the abuse of majority powers. It is well established that a member of a club may have a judicial remedy against unwarranted expulsion : but in granting it the courts merely enforce the fair application of the existing rules of the association, and no attempts are made to supersede its autonomy. The plea of minority protection can certainly not justify the compulsory admission of individuals to the right to vote at primary elections. It may also be urged that in primary elections the party exercises a public function essential to the legally established machinery of filling offices, and that upon that ground their action is under public control.-'-''' Th(^ recognition by our i)ub- lic law of the legal status of llu' i)aity as an agency in the making up of our government is, indeed, a development of marked interest .^« But it is to be noticed that for the pur- pose of controlling primary elections the whole party machinery is virtually brought under state regulation, and the (incslioii must arise whether this is consistent with I)olitieal liberty. A strict enforcement of the princii)le of equality as between different parties would prevent flagrant abuses of the powers of the state- but if the principle of public control is recognised without (lunlilicntioii. indcix'iul- cncc of political agitation iimy he sci-ionsly impaired. It is, however, possibh- to explain tlu' power of control over j.arly machinery without r.-sorting to the police power at all. This control, as has been said, is oidy exercised in con- nection with the conduct of |)riniary elections; the |u-iniary election laws, again, are an outgrowth ol' the so-called Austi-alian ballot system. <.ne ni" the principal features of whi.'h is the printing of I. allots at public expense. An ex- jiiiiiii.ition of Ihr laws will show that the compliance with ••• People ex id. Coffey v. Dciiin < )nKnn. I.;il)inion, order or decision of any officer of the United States which denies, restricts, impairs or questions the right of expatriation, is declared inconsistent with the fundamental principles of the Republic." This is as strong a declaration of governmental principle ;iii(l policy as it is possible for llic legislature to make; at the same time if the principle is not one of constitutional law, succeeding legislatures are not bound by the declaration.'^ As a matter of general ])ul)lic bnv. the i)()Aver to restrain emigra- tion belongs to the territorial sovereignty of every nation,'* ;ind its exercise may l)e necessary to enforce the performance •■' Vnnf^ Yiie Ting v. Uniteil States, 7 Revised Statutes § 1999. 149 U. S. G9H. sFonjT Yuo Tin}; v. United States, *Act of February •_'(}, 188.'5, I 149 U. S. G98. Hunpi. 479. ' I'liiHiniuro International TjUW I, •'•Art of May f), 1892, 11 Supj)!. 111. A Hoyal proclamation rerpiir- Kl. As to an.-ircliisls, see § I7H, in>r tiie license of the Coniinissioners f-itprd. of Plantations for emigration to '•Sec Aet Manli .'., 1903, 32 Stat. America was issnc.! in l(i37 (XX ill L. lui:',. Kymer's Foedcra 14 .'5). See Frank- § 487 EMIGRATION. 525 of certain duties, as, e. g., of military service ; but it is not a violation of any international obligation for one state to receive a person whose emigration was prohibited by his sovereign, and this is plainly' implied in the act of Congress above quoted, and has been constantly affirmed by the Amer- ican government.^" Most nations have abandoned the policy of restraining emi- gration by force, and the United States has never had occasion to adopt such policy. The right to leave the country would not necessarily draw with it the right of expatriation, i. e., the right to throw off allegiance and citizenship; but the right of expatriation, recognised as inherent by Congress, cannot be conceived without a right of emigration. The constitution is silent upon any such right, and the question is whether a limitation of governmental powers is to be im- plied. The arguments in favor of such implication are : the fact that the United States has been founded upon emigra- tion and grown by expatriation, the constant assertion of the liberty of emigration as against other nations; and the practice of our legislation. The latter argument is of rela- tively little strength, as governmental inaction which is fully explained by the absence of any need of action cannot be interpreted as a confession of lack of power; moreover in restraining immigration the United States has shown that it does not interpret the inherent right to emigrate as including the right to be received by other nations, and yet perfect freedom of migration demands leave to come as well as leave to go. The implication on the other hand is strongly nega- tived by the general principle that the right of territorial sovereignty should as a matter of law remain unim- paired, since an imperative necessity for its exercise may arise. The traditions of the policy constantly advocated by the American government are sufficiently strong to make it extremely improbable that Congress will attempt to restrain emigration ; if. however, it should do so, directly or indirectly, it is just as improbable that the Supreme Court would deny its power to act. lin's Works IV, 458, against lo Wharton, Digest of Internation- the policy and justice of restraints al Law, § 171-172a. on emigration in connection with a proposed act of Parliament. 526 CIVIL LIBERTY: ECOiNOMIC. §488 It is, however, very clear that the states have no power to prevent emigration to foreign countries, since that would amount to a regulation of foreign commerce or of international relations. § 488. Right to come into a state.— The power of each state to keep from its borders persons dangerous to health or safety has been discussed before.^ ^ It may apply to persons coming from other states as well as from abroad ; and as Con- gress has not legislated upon interstate migration as it has upon iininigration, the power of the states may still be called into play. Legislation is practically confined to the enforce- ment of quarantine in case of epidemic disease; in that emergency powers of exclusion are exercised and sustained.' - Apart from measures necessary for self-protection of this kind, it has been held that the states cannot restrain persons generally from leaving the state or passing through the state, since such leaving or passing may be necessary for the exer- cise of privileges of citizenship of the United States, such as going to the capital or going to the courts of the United States.' =5 The case last cited was decided before the Four- teenth Amendment became law, but recognised in substance (me of the principles secured by that amendment; for the right to travel throughout the country is clearly one oi" the privileges and immunities of national citizenship. The right ol' the citizen of one state to come into another state and sdtlr there is guaranteed by Article IV, Section 2, of the Constiliilion. granting to the citizens of each state the privih'gcs ol' the citiziMis of the several states. Before the Fourteenth Amendment was added to the Con- stitution, ;i nuniber of states |)i-ohil)iteil th(> itiimigration of free negroes .iiid ollu'i' persons of cohn- Ironi other stjites. A provision ol' thai cluiraeter, though now ol' no t'lVect, remains in the constitution of Oregon.'^ A negro :il lii.il lime not being a citizen. Article |\', Section 2, ol (he Constitution. (lid nut apply. L;i\vs of Soiilheni stiiti's. however, exelnding coldfed se;iiiieii rriiiii their ports wiTe held to he nnconstitu- tion;d ;is resti'Jiinls upon eoiniiieree.' •• The ex<-hision ol' free II Her- 8 101, supra. laCrandiili v. N('v:itth> in these po.ssessions as in other territories? Will the inhabitants of these possessions be free to come to the United States, as a matter of constitutional right? The cases so far dccidi'd l)y llic Supreme Court do not answer these (juestions directly, iioi- do tlicy admit of any clear inference, lint there is reason 1<» suppose that the desire 1o keej) Congress unrestrained by constitutional limitations, ^\ hi(di is nianifest in the opinions of the majority of the judges in the insulai- Cases,-- was induenced by the cdiisidei-at ion that il' the const it ul ion were fully extended to the tropical possessions, Congress would he f)owcrlcss 1o inhibit the inllux of undesirable (dements into the |>opulat iitii oT the rnited States. The distinction hetweeu incor|)oratcd and appnrl Unitcl HlatCH Rev. Stat., Sec, '244. 2118. § 491 MIGRATION AND CITIZENSHIP. 529 tices White, Shiras and MeKenna, points in that direction. If it is held that the new possessions are not part of the United States, persons born witliin them since the annexation woukl not fall within the definition of citizenship contained in the Fourteenth Amendment, and whik» it might still be con- tended with great force that by the common law, which the Fourteenth Amendment did not intend to impair, there is no difference between citizen and subject, but only one status of allegiance, yet the law of citizenship, if not bound by the letter of the constitution, could be altered by Congress. It seems that the right of free migration is the only incident of citizenship, to the grant of which to the inhabitants of the new possessions there is strong opposition ; and it seems to be assumed that citizenship carries the right of migration and settlement with it as a matter of course. The unity of the nation and of the territory is in no respect marked more strongly than in the freedom of movement throughout its extent, and the restriction of that freedom with regard to any part of that territory is the clearest evidence that that part is to be treated as dependent and in a manner foreign. § 491. Migration and settlement within a state.— If it is a privilege of a citizen of the United States to move freely within the whole country, the power of the state to control the migration and settlement of its own people within its own territory must logically be denied, for the whole country includes the state. But apart from the federal constitution, the right of each individual to travel about and to choose his residence must be regarded as an essential part of the liberty which every state constitution guarantees. Experience has shown that governmental interference with the natural move- ment of population is unwise, oppressive and futile. There is nothing in modern legislation to parallel the various royal proclamations issued in England toward the end of the six- teenth and beginning of the seventeenth century, prohibiting the building of houses in the London suburbs, because with such multitudes many must live by begging or worse means,^'^ or directing noblemen, knights, and gentlemen having houses in the country to abide there until the end of the sunnner, and attend to their duties.^-* It would not be difficult to 23 1602; 3(1 Inst. 204, XVI Ey- 2-tl617 and 1622; XVII Rymer's mer's Foedera 44r character (d" the person, the inetliod ol" restraint is nsnally tlie rc(piii-eineid R. A. 'jni. •'">■ l>;irl)<'rs. .•|H8t:ilf V, 7. •no, 70 Minn. SO, ■\H 1^ 495 CERTIFICATION AND LICENSE. 535 the principle of equality, but it may be remarked at this ])oint that there has been a noteworthy tendency toward sub- stituting for administrative discretion specific grounds of exclusion, and guaranties by bonds, etc., against the misuse of the business for wrongful ends. While this tendency is not uniform, and cannot be said to have ripened into a constitu- tional principle, it represents an advance towards a better recognition of constitutional equality than the system of ad- ministrative discretion. i5 495. Certification in place of license.— As for trades and jn'ofessions affecting health ami safety, the prevailing opinion seems to be that tests of qualification are wise and necessary. This would be most readily conceded with regard to the prac- tice of medicine. The German law substitutes the principle that only the designation as physician or doctor is reserved to those who have complied with the proper tests of qualifica- tion; without the use of a title indicating professional stand- ing, any one may practice medicine. In recent years a similar policy has been adopted in several American states with regard to the business of accountants. Those passing the prescribed tests may call themselves certified public account- ants, but the business of accountant remains free as hereto- fore.^'' So the restrictions upon the business of banking apply as a rule only to those who wish to do business under the designation of bank, indicating an institution rather than a mere private business. It is difficult to see why this policy does not afford all the guaranties to which the public is entitled or w^hich it needs. It has the advantage that it can- not be used for the restriction of competition. It would cer- tainly strengthen the principle of constitutional liberty, if in all eases where a business is liable to abuse, the license based on administrative discretion were superseded by a license issu- able as a matter of right upon compliance with definite legal requirements, and if at least in all cases in which the public at large is not exposed to the consequences of incompetency, a right to public certification were substituted for the require- ment of a license. § 496. Delegation of legislative power,— Our courts being committed to a less liberal theory regarding the freedom 39 New York Laws, 1896, eh. r.l'J, Illinois, Act May 15, 1903. 536 CIVIL LIBERTY: ECONOMIC. § 497 of pursuit of livelihood than the one here advocated, it remains to inquire whether the legislature is subject to any constitutional limitations in requiring licenses. These limita- tions would have to be found either in the principle that legislative powers must not be delegated, or in the principle of equality. It has been held in Ohio that a law which pro- vides for a license if the examining officer finds the applicant trustworthy and competent, without further specification, is invalid because it delegates to an administrative officer a legislative power.'**' A great many of the licensing laws on the statute books would probably not be able to stand such a rigid test ; at the same time it is easily satisfied by the specification of some requirements of training or knowledge. § 497. Principle of equality.— The principle of equality may be involved in licensing laws in various ways. The require- ment of professional qualification may shut out corporations, a point which has been noticed in Germany, but not, it appears, in this country. To a great extent corporations may overcome this disability by employing officers or agents duly qualified; even where this is not possible, corporations cannot in this respect claim equality with individuals. Some of tlio laws requiring tests of qualification apply only to cities. While this would not violate the Fourteenth Amendment'*^ it may constitute unconstitutional special or local legislation under provisions of state constitutions; on this ground the horse- shoers' act of Illinois was condemned.'*- Discriminations may occur against oi* in favor of non-residents, those already engaged in lln' business, or those carrying on the business in a particular manner, or special classes of persons; these will be noticed hcreaftci-; they rarely affect essential fea- tui-i's of the legislative poliey.'"' The most impoi'lant dis- eriiiiin;iti(iii is uii, II I-. K". A. fi,S9, r^\ N. E. 136; ■" MiHHouri (Hiiwninn) v. TiOwiH, Sfnlf v. WMf^oncr. Hit Minn. 20(5, .3S 101 ir. S. 22; T'.ikIiI v. \.'w Y..rk. L. U. A. (i77; Slule v. (iarbroaki, 14:J V. H. .'-)17. Ml l!.. 496, 56 L. R. A. 570. *2Be»8ettP V. Pfoplo, 19.T 111. 3.14. 62 N. K. 215. 5r, T,. i:. A. r^r^H. § 498 FREEDOM OF CONTRACT. 537 FREEDOM OF CONTRACT. §§ 498-503. § 498. Contract essential to property.— The right to make contracts is in some respects essential to the enjoyment of property. The constitutional guaranty of property rights would be deprived of much of its value if the legislature had absolute power to inhibit acts of disposition or alienation (which are generally contractual acts), or to annex to them arbitrary or imreasonable conditions of consequences. The right to contract is therefore not subject to legislative power to the same extent or in the same sense, as the right to transmit property by last will. § 499. Contract part of civil liberty.— But the liberty of contract, like all other civil libert.y, is subject to restraint and regulation on behalf of the public welfare, and to speak of a constitutional liberty of contract without careful qualifica- tion is a vague and meaningless phrase. The liberty of contract yields readily to any of the acknowledged purposes of the police power, and it differs from fundamental con- stitutional rights, from the liberty of the body or person, from the right of property (including the obligation of exist- ing contracts), from the right of equality, and from political liberty, in that it is neither a vested right, nor a right of definite content, nor a right protected by specific constitu- tional guaranties. § 500. Freedom of contract and oppression.— A constitu- tional right of freedom of contract has been most strongly as- serted, and has received some recognition on the part of the courts, in connection with protective labor legislation. While it is conceded that contracts may be forbidden which in their effects tend to injure or to demoralise the public at large (gam- bling contracts, the sale of liquor, etc.), it is insisted that where the restraint is for the benefit of one party of the contract, it is illegitimate, since the fact of agreement shows that the party to be protected freely consents to the supposed injury, and that the state has no business to force a benefit upon him against his will. It has been pointed out before^^ that this argument is fallacious in the case of wage contracts where the voluntary assumption of a burden by one may, through *4 See § 155, in connection with the ease Re Morgan, 26 Col. 415, 47 L. R. A. 52. 538 CIVIL LIBEKTY: ECONOMIC. § 501 the stress of competition, force others to assume the same burden against their will. However, even if the restraint is looked upon as protecting the party to the contract from his own acts, and not from the act of others, it is maintainable, as long as prevention of oppression is recognised as one of the legitimate grounds for the exercise of the police power. Economic oppression regu- larly proceeds with the apparent consent of the oppressed whose weakness compels him to accede to onerous terms, and such oppression cannot be dealt with otherwise than by restraining the freedom of contract. To emphasise this free- dom in the face of oppression, is to deny the legitimacy of the police power for the protection of economic liberty ; what- ever may be the theoretical strength of this position, it does not constitute a principle of constitutional law. § 501. Legislation and United States Supreme Court.— Legislation has interfered with the freedom of contract for the protection of one of the parties thereto, chiefly in the following matters: rate of interest on money loans, limita- tion of liability for negligence, insurance, and payment of wages and hours of labor. Usury laws have never been ques- tioned. The Supreme Court of the United States has recog- nised that the law may forbid and declare invalid any stipula- tion whereby a liability imposed on grounds of public policy is sought to be evaded -.^•'^ it has also maintained a statute requiring insurance companies, in case of total loss by fire, to pay the full amount of the policy, less depreciation, not- withstanding a provision in a i^olicy that only the cash value of the property destroyed should be paid;-*'"' aiul il has sus- tained the protective labor laws that have been brought be- fore it.-*' § 502. Decisions of state courts. — The decisions of state fciurts (h'cljiring in-olcctivc hihor h'gislat ion unconstitutioiKil have Ix'cn considered before. Il h^s Ix'eii seen Ihnt the s1;il- *(■. Missouri Pjififi.' H. H. < '<>. v. '7 Tloldon v. Unniy, 1(5!) U. S. Mackpy, 127 U. S. '205. :'()fi, cspocially on j). 35)7 ; Kiioxvilh? <" Orient InHunmce ('on)i):iiiy v. Iron Co. v. TT.'irbison, IS."? IT. S. 13; D.'ijjjjH, 17- U. S. .'").'")7; HOC, also, Dnj,'- ■■>1h<> »" act of Conpross for the pro- )iCT V. Mrcliari. & Traders' Ins. Co., t(ctiori of sailors, I'.it tcrsoii v. The n.'j Tenn. L'4.'5, .TJ S. W. .'"). 'J8 L. R. Kndora, I'.id V. S. lO'.t. A. 796; Phoenix Ins. ('o. v. Tievy, 12 Tex. Civ. App. 4.'), .'$.3 S. W. 992. § 503 FREEDOM OF COi\ TRACT. 539 utes have generally contained elements of discrimination which the courts took into consideration in arriving at their decision, but the Supreme Court of Illinois has also said that chief stress should be laid upon the violation of the constitu- tional liberty of contract.-* '^ The same court has, however, used other arguments in denial of the legislative power. Thus in declaring a weekly payment law unconstitutional it I)oints out that the waiver of weekly payments may under circumstances be beneficial to the employees ;-*'-^ again, in annul- ling the coal weighing act of 1887 it dwells upon the fact that the non-compliance with the statute was perfectly satisfac- tory to the employees, who would have been prejudiced by its enforcement.'^" Such considerations cannot be conclusive against the validity of police regulations, which can rarely be framed in such a manner as to work beneficially in all cases; the same arguments might be used against the usury laws with greater force, and a similar plea was held untenable by the Supreme Court of the United States in the case of the Joint Traffic Association. ■'^1 The power of regulation in such cases includes a power of unwise regulation ; the state does not act upon the assumption of superior wisdom, but upon the convic- tion that the laborer is generally not in a position to exercise free judgment, and that "where the number of employees is such that specific contracts with each laborer would be im- probable, if not impossible, in general contracts justice shall prevail. "^2 § 503. Formulation of principle.— The general principle of police regulation of the liberty of contract may, perhaps, be formulated as follows : Where a contractual relation is voluntarily entered into, rights and obligations, which are con- formable to the nature of the relation, may be defined by the law and made conclusive upon the parties irrespective of stipulations attempting to set them aside, especially where such stipulations involve the waiver of valuable personal rights, or where they are virtually imposed by one party without power of choice on the part of the other. 48 Vogel V. Pekoe, l.'S? Til. R3f), .30 si United States v. Joint Traffic L. R. A. 491. Association, 171 TT. S. 505. 40 Bracevillc Coal Co. v. People, 52 State v. Peel Splint Coal Co., 30 147 111. 66. W. Va. 802. MHardintr v. People, 160 111. 459, 32 L. R. A. 445, 43 N. E. 624. FUNDA:\rENTAL RIGHTS. SECOND : PROPERTY. VESTED RIGHTS UNDER THE POLICE POWER. CHAPTER XXIV. APPROPRIATION, INJURY, AND DESTRUCTION. A. TAKING FOR PUBLIC USE. APPROPRIATION. §§ 50-4-506. § 504. Principle of law of nature.— It is a settled principle of public law that private property may be taken when the public welfare recjuires it. The mediaeval jurists who were far from admitting that the power of the state over private property was absolute, yet recognised that it might be taken for just cause, and public necessity constituted a sufficient cause. Wliere, however, the private was thus made to yield to the public interest, a duty of compensation was urged on principles of natural equity.^ The principle received its defin- ite formulation under the doctrines of the law of nature. Grotius expresses it as follows :2 "This also is to be noted that a right, even when it has been acquired by subjects, may be taken away by the King in two modes; either as a penalty, or by force of eminent domain. But to do this by the force of eminent domain, there is required in the first place, public utility; and next, lli.il if possible, compensation be made to liitii who has h)st what was his, at the common expense; and as this holds with i-cgard 1o other matters, so does it with regard to rights which are acquired by pi-oiiiisc or contract." v; 505. Doctrine of English law. — In England the principle of compensation was rstaljlishcd ;il .m cai'ly date with regard 1o thr kiii^-'s right of purveyance for the i-oyal honschold which was in ana!o^\- 1o the talsing i'or public use.-' Later on it became the rule Ili;it every taUiiig ol" property i-iMpiired the sanction of ;in ;ict of Parliament, and Parliament regularly ' riii'rkc, (MMioHHfii.schfiftHrociil, III. •' M.-ij^nn T'li.-irtM, r. 12S, 2 Inst. (il7, niH. 541, 4 IiiHt. KiC), HliickHtoiio T L'S7, - Pr jinr hrlli rl pads. II. 1 I, 7. L'SS. Broom's Const. L:nv .'^M-.'^OG. 540 § 5UG APPROPRIATION FOR PUBLIC USE. 541 provided for compensatiou. Blaekstone speaks of the ri^ht of eminent domain as follows :■* "So great moreover is the regard of the law for private property that it will not author- ise the least violation of it ; no, not even for the general good of the whole commnnit}'. If a new road for instance were to l)e made through the grounds of a private person, it might perhaps be extensively beneficial to the public; but the law permits no man, or set of men, to do this without consent of the owner of the land. In vain may it be urged, that the good of the individual ought to yield to that of the community; for it would be dangerous to allow any private man, or even any public tribunal, to be the judge of this common good, and to decide whether it be expedient or not. Besides the public good is in nothing more essentially interested, than in the pro- tection of everj^ individual's private rights, as modeled by the municipal law. In this and similar cases the legislature alone can, and indeed frequently does, interpose, and compel the individual to acquiesce. But how does it interpose and com- pel? Not by absolutely stripping the subject of his property in an arbitrary manner ; but by giving him a full indemnifica- tion and equivalent for the injury thereby sustained. The l)ublic is now considered as an individual, treating with an individual for an exchange. All that the legislature does is to oblige the owner to alienate his possessions for a reasonable price; and even this is an exertion of power which the legis- lature indulges with caution, and which nothing but the legis- lature can perform." § 506. American constitutions and Fourteenth Amendment. —In America the right to compensation is secured by the federal and most state constitutions. It has been said that the right to take for public use is inherent in sovereignty, and the constitutional provision for compensation merely a positive limitation upon the right ;^ but as a matter of fact the taking for public use Avithout compensation has never in any civilised country been regarded as a legitimate exercise of state power, and the payment of compensation is therefore correctly held to be a requirement of due process under the Fourteenth Amendment. ''Due process of law as applied to judicial pro- ceedings instituted for the taking of private property for pub- 4 Commentaries, I, 139. U. S. 403; United States v. Jones, ^Boom Company v. Patterson, 98 109 U. S. 513. 542 APPEOPEIATION, INJUEY, AND DESTEUCTION. § 507 lie use means such process as recognises the right of the owner to be compensated if his property be wrested from him and transferred to the public. The mere form of the proceeding- instituted against the OAvner, even if he be admitted to defend, cannot convert the process used into due process of law, if the necessar}^ result be to deprive him of his property without compensation. "6 Compensation is indeed a logical outgrowth of the principle of equality which demands that no burden be imposed upon a person from which others are free unless there is some causal connection between him or his property and the condition which the burden imposed upon him is intended to relieve ; " it prevents the public from loading upon one individ- ual more than his just share of the burdens of government, and says that, when he surrenders to the public something more and different from that which is exacted from other members of the public, a just and full equivalent shall be returned to him. "7 INJUEY. §§ 507-510. § 507. Property injuriously affected under acts of Parlia- ment.— On principle there can be no difference between appro- priation for public use and injury done to private property in the course of a public undertaking. An injury to property is practically a partial taking of it. In England Avhere the riglit to compensation always rests upon the act of Parliament which authorises the taking, the failure of the act to make provision for injury done, must defeat the right. The generally accepted doctrine is that injury to private property occasioned by the careful prosecution of some enterprise authorised by act of l';iiliament gives no cause of action for damages, where no provision is made for compensation lo those "injuriously af- fected,"** since Parliament in legalising the object h;is legal- ised llie necessary nie;ins. In tiiis docti-ine the legni onuiijio- tence of l';i!-Ii;inieiit opefiites to the detriment of pi-iv;ile prop- erly i-iglits.'' lint llie provision foj* eompensation to lliose injniMonsly jtCfeeted is ;i comiiiioii one .-md has been enibiKlied in the LmikIs Chinses f'onsolidnl ion Act of 1845, which has in a niiinni'?- eodilicd the l']n!jlis|i l;i\v of condemnation. "Chicago. |{. & (.1 n. Co. V. Clii- "Siittoii v. Clarko, 6 T:nint 20; nttio, 1(5(5 TJ. S. TdC). (iovcnior &<•. of liritisli (':is1 I'latr T Monoiifjahola Navijration ('<.. v. Miuin liirl m-crH v. Mcrcditli, f 'P. U. I iiilfd MtatcH, MS V. H. rJlL'. 794. Sc.-, lu.wcvcr. header v. Mox- « Pollock, TorlH, I'Jfi, l'J7. loll, :{ Wils. Mil. § 509 PHYSICAL INVASION. 543 55 508. Physical invasion. — in America the Englisli rule has sometimes been stated to be a rule of the common law applica- ])le in this country;'" but the constitutional principle which forbids taking: must also forbid injury without compensation." The prineii)lc has been enforced with regard to direct en- croachments upon and physical invasions of property. "It would be a very curious and unsatisfactory result, if in construing a provision of constitutional law, always under- stood to have been adopted for protection and security to the rights of the individual as against the government, and which has received the commendation of jurists, statesmen and com- mentators as placing the just principles of the common law on that subject beyond the power of ordinary legislation to change or control them, it shall l)e held that if the government refrains from the absolute conversion of real property to the uses of the public, it can destroy its value entirely, can inflict irrep- arable and permanent injury to any extent, can in effect subject it to total destruction without making any compensa- tion, because, in the narrowest sense of that word, it is not taken for the public use. Such a construction would pervert the constitutional provision into a restriction upon the rights of the citizen, as those rights stood at the common law, instead of the government, and make it an authority for invasions of private right under the pretext of the public good, which liad no warrant in the laws or practices of our ancestors."^- The rule has been applied to the overflowing of land by the erection of dams, or booms,^'^ to the dredging of flats,^^ and to the temporary occupation of land for a militia encampment,'"' or for a hospital.'" § 509. Doctrine of consequential damages.— Cases in which compensation has been denied will be found to go on the theory that there has been no invasion of any right, and hence loEigney v. Chicago, 102 111. 64, Murdock v. Stickney, 8 Cush. 113, 71 ; Transportation Company v. Chi- doubting whether it should be called cago, 99 U. S. 635, 641. taking or not. 11 Eaton V, Boston, Concord, etc., i*Bent v. Emery, 173 Mass. 495, R. R. Co., 51 N. H. 504. 53 N. E. 910. 12 Pumpelly v. Green Bay &c. Co., is Brigham v. Edmands, 7 Gray. 13 Wall. 166; Eaton v. Boston, Con- 359. cord &c. R. Co., 51 N. H. 504. i" Spring v. Hyde Park, 137 :Mass. 13 Grand Rapids Booming Co. v. 554. Jarvis, 30 Mich. 308, § 409, supra; 544 APPKOPKIATJON, INJUEY, AND DESTRUCTION. § 510 no legal injury. Thus where property is subject to an ease- ment or servitude in favor of the public, what would other- wise be an invasion or a taking, has been held to be the exer- cise of a public right, so that no compensation is due : so in the case of improvements made on navigable waters in the interest of navigation,!^ or under laws recognising a public servitude over riparian lands for the construction of public works.^^ The denial of any liability to compensation in the case of what are called consequential damages, likewise rests on the theory that there is no legal right taken or injured in the prosecution of the public work or enterprise. It was held at a comparatively early date that there is no cause of action for digging down the street by the plaintiff's dwelling house and taking away the earth so as to lay bare the foundation walls of the house, causing a danger of its falling, this damage being regarded as consequential ;!^ and this doctrine has been ac- cepted in all the states except in Ohio.-^ The prevailing doc- trine denies to the owner of property abutting on a street a right or easement to have that street continued in a condition as favorable to him as it happens to be or to have been when he made his improvements ; whatever rights he may have are subject to the superior right of the public to make further improvements for street purposes. ^^ § 510. Modifications of doctrine.— This doctrine was modi- fied or further defined by the New York elevated railroad cases to the effect that the adjoining owner has a right, which is a property right, to have the street kept unimpaired as a public street with the incidental benefits of light, air and ac- cess, and that while this right is subject to the power to control the public uses of the street, the power does not include the authorisation of a structure which is subversive of and repug- nant to the uses of the street as an open public street.-^ Even 17 Scriiiit(in V. Wheeler, 179 U. S. The same principle was applied to 111. Hoc 8§ 403-408, suina. other undertaking-s of a j)ubli(' char- '" Khlridj^e v. Trezevant, TOO TT. actcr iini);iiriii}r the value of exist- S. A')'l; see § 409, supra. ing iniprovomeiits, an a ])icr and 1" Tallender V. Marsh, 1 l'i(k. 117, hasin constructed iiiulcr legislative 382.3. authority which iMi|)('(lcil access to a '-'" Mcf'o!nliH V. Akron, 1.' Oli. 47.'), wharf. Lansing v. Smith, 4 Wend. 9. 184(5. -'.JHtory v. New York Elevated 21 Dilh.n Municipal Corporal ions. \l. Co., 90 N. Y. 122, Dillon §§ 723a- §§ 987-99.5C. • 727, (J.'ifia-fi.^ec. § 510 COx\SEQUENTlAL DAMAGES. 545 a change of street grade cannot be made for railroad purposes so as practically to exclude the abutting owner from the part of the street occupied by the railroad, without compensating him for the injury suft'ered.^^ In Massachusetts a statutory right to damages for injury done by change of grade was created in pursuance of a sug- gestion made by the court in Callender v. IMarsh,^-* and similar provision is made in other states, including the state of New York under special city charters-^i^ In Illinois and a number of other states the Constitution has been so changed as to provide that private property shall not be taken or damaged for public use without compensation, and it has been held, in view of the reason for the adoption of the amendment, that this change means the creation of a liability for consequential damages, especially for those resulting from a change of street grade.2<5 The constitutional change like the statutory remedy may also be regarded as carrying the doctrine of the elevated rail- road cases to the point of recognising that an owner of prop- erty adjoining a public highway, who has been practically invited to adjust his improvements to that highway, has so strong ail equity to have the highway substantially preserved in the condition necessary to the continued enjoyment of the improvements, that such equity should be given the effect of a right of property. It is therefore not every inconvenience or depreciation of value caused by a public improvement for which the constitutional or statutorj^ provisions in question give a right to compensation, 2" but only the impairment of some benefit which is so directly inherent to the property that it can be recognised as part of the legal right or as in the nature of an appurtenant easement, the impairment thus con- stituting a legal injury .28 The doctrine of non-liability for 23Keming v. New York, L. E. & in O'Connor v. Pittsburgh, 18 Pa. W. E. Co., 128 N. Y. 157, 187. 24 Massachusetts Kev. Laws, ch. -'c Chicago v. Taylor, 125 U. S. 48, § 14. 161; contra, see Austin v. Augusta 25 Fuller V. Mt. Vernon, 171 N. Y. Terminal R. Co., 108 Ga. 671, 47 L. 247, 63 N. E. 964 ; Coster v. Albany, R. A. 755. 43 N. Y. 399, 417 (statutory provi- 27 Aldrich v. Metropolitan W. S. sion in consequence of decision in El. R. Co., 195 111. 456, 63 N. E. 155, Lansing v. Smith, 4 Wend. 9). 57 L. R. A. 237; Frazor v. Chicago, So Pennsylvania Constitution, Art. 186 Til. 480, 57 N. E. 1055. XVI, § 8, in consequence of decision 28 The same view has been taken 35 546 APPEOPRIATIOX, INJUEY, AND DESTEUCTION. § 511 consequential damages remains therefore, in principle, undis- turbed, and does not contravene the constitutional protection of property rights, either under the state constitutions or under the Fourteenth Amendment.^*^ B. TAKING TO WARD OFF PUBLIC INJUEY. §§ 511-517. § 511. Difference between police power and eminent domain, and principle of compensation.— The constitutional prohibition against taking px'operty for public use without compensation, applies to injury and destruction as well as to appropriation, and it applies no matter for what purpose the property is taken. If it is recognised that a change of grade entitles to damages, the right cannot be denied on the ground that the change was demanded by considerations of public safety. The rule "has never been qualified or limited by the object or purpose which the municipality had in view in ordering the change. "^'^ Thus while the effect of erecting a smallpox hos- pital upon the value of surrounding property is consequential damnum absque iHJuria,^^ private property cannot be ai-)]-»ro- priated as a hospital without compensation.-"^ If we differentiate eminent domain and police power as dis- tinct powers' of government, the difference lies neither in the form nor in the purpose of taking, but in the relation which the property affected bears to the danger or evil which is to be provided against. Under the police power, rights of property are impaired not because they become useful or necessary to the public, or because some public advantage can be gained by disregarding them, but l)ecause their free exercise is believed to be detri- mental to i)ublic interests; it may be said that the state takes property by cinincnt domain because it is useful to the public, of the statutory compensation for works not been authorised by tlio damage done in tiie execution of llie statute, would have given Iho claim- English Public Health Act; II.ill v. :int a right of action. Mayor of Bristol, L. E. 1' C I*. 322. 20 Meyer v. Eichmond, 172 U. S. Till' |.rinci]de has been well put by 82; also Marchant v. Pennsylvania, saying that a person who sustains Eailroad Company, 15.S U. S. 3S(). injury from the execution of worlfs •-"> City of (.'hicago v. Jackson. 1!M; authorised by statute is not, gen- ill. lOfi, 63 N. E. 101.^ erally speaking, entitled to compen- ■" Frnzer v. Chicago, 1 sn Til. ISO, sation under the compensation 57 N. E. 1055. clauses of the statute, uidess the in- •■!•-; Spring v. Tlyde P:nk, 137 iMass. jury sustained is such as, had the 554. §512 TAKIXC TO WARD UI'F INJURY. ♦ 547 and luieler Ihc police power because it is lianuiul, or as Justice liradiey put it, because "the property itself is the cause of the public detriment. "•'•' From this results the difference ])etween the power of emi- nent domain and the police power, that the former recognises a right to compensation, while the latter on principle does not. § 512. Appropriation generally outside of the police power. — The exercise of the police power can hardly result in appro- priation of property by the public, unless it be by way of con- fiscation as a penalty or for the purpose of destruction; for if the property is dangerous, it is dangerous in the hands of the public as well as of the private owner, and if the danger can be met by regulation, such regulation is possible while the property is left to the owner; appropriation can be necessary only where possession is of positive value to the public ; and if so, there is really a case of eminent domain."'^ Thus if a person affected with a contagious disease, dangerous to the public health, is in such a condition that he cannot be removed, the house in which he is may be considered as a hospital, and per- sons residing there may be subjected to regulations of the board of health ; this is merely regulation ; but the house can- not be seised or taken possession of by the health authorities without compensation. 2^ § 513. Prejudicial regulation without compensation.— The normal form of impairment of property rights under the police power is restraint or regulation which leaves the property physically intact, and merely compels the owner to exercise his right over it in a certain manner. In so far as the regulated exercise results in changes which diminish value or profits, the practical effect, although not the legal aspect, is that of injury to the property. Where no fault is imputable to the owner, a compensation for his loss may be equitable ; so the English Public Health Act of 1875 provides that where any person sustains any damage by reason of the exercise of any of the powers of the act, in relation to any matter as to which 33 Davidson v. New Orleans, 96 TJ. compensation. ' ' Proprietors of Mt. S 97. Hope Cemetei-y v. Boston, 158 Mass. 34 "That power [the police power] 509. does not extend so far as to include sr, Spring v. Hyde Park, 137 Mass. a right to require the transfer of 554. property to another person without 54^ APPEOPKlAT10.\, IxXJURY, AND DESTRUCTION. j; 514 he is not himself in default, full compensation shall be made to such person by the local authority exercising such powers ;^*'' but in the absence of such provision it is sufficient that the owner has the benefit of the property or occupation which is the occasion of the danger, and that where the prevention of the danger requires a burden, the burden should accompany the benefit. Restrictive regulation is therefore regularly im- posed without compensation. § 514. Justification of such regulation.— The absence of compensation, however, makes the police power much more incisive in operation than the power of eminent domain, and hence subject to stricter limitations. A public object maj^ justify impairment of property with compensation, when it could not without it, so the object of public pleasure or recrea- tion and the embellishment of public grounds. The state may require in the interest of health and safety, that a portion of a lot should not be built upon, but not for the purpose of widen- ing a boulevard."^" And so as to the limitation of the height of buildings to add to the beauty of a public square. ^s In Massachusetts it was intimated that such a limitation might be sustained as an exercise of the police power, so that com- pensation would not be claimable as a matter of right.^^ But when another act creating a similar limitation provided for payment of damages for the deprivation of rights existing under the constitution, and it was contended on behalf of the commonwealth that as an exercise of the police power the restriction did not impair constitutional rights, the court re- fused to accede to this view and held that without express statutory provision the intent to deny compensation would not be assumed.-*" It would be correct to say that such denial would b(^ unconstitutional.'*! § 515. Regulation of property rights. — Since regulation is ••'<•• 3H iiiid ;W Vict., ch. 5.5, § 308; •'i^ St. Louifi v. Hill, IIU AJo. f)!'?. !in application of tliLs i.s to bo fouiul •"'s Sec Dillon Municipal Corpora- in §§ 23, 24 of the act; if there iH lion, § 599, as to the exercise of the an insiiflicieiit ilmin. Ilie owner nuist power (if eminent :i\v I, nol3, Ky. 285, 5 S. W. 580; Ingrain v. II, 8205. yt.ite, 39 Ala. 247, 84 Am. Dec. 782. <"• Phelps V. Raci-y, (JO X. Y. K). §518 CASES OF TAKING. 551 be said to bo one of the eonditioiis upon which all property is held iu the community ; but total sacrifice negatives altogether the right of property. The conditions justifying the demand of such sacrifice must therefore be carefully examined. Thi- following classes of cases will be considered : those in which the property proposed to be taken is insig- nificant in value (§§ 518-519) ; those in which the property is imminently dangerous, as against those in wdiich it is unlaAvfully used (§§ 520-528) ; those in which property is offensive and at the same time useful (§§ 529-533); those in which property is sacrificed to avoid a great calam- ity (§§ 534-537); those in which property is made unlawful by a change of legislative policy ; these will include : confiscatory regulation and the impairment of the obligation of contracts (§§ 538-560) ; the taking of rights sanctioned by affirmative act of the state (§§ 561-582); the abrogation of certain forms of property which are contrary to modern economic or social ideas (§§ 583-603). INSUBSTANTIAL INVASION OR DESTRUCTION. §§ 518-519. § 518. Transitory disturbance of possession.— There is au- thority for holding that a very slight interference with prop- erty rights may be permitted by law without compensation. Justice Holmes speaks of the power to exact relatively small sacrifices from the individual for the public good.^ An or- dinance of Massachusetts of 1641, in granting the right to fish in ponds, gave the right to pass and repass on foot through any man's property fo* that end, so they trespass not on any man's corn or meadow. In Maine this ordinance is still recog- nised as law,2 while in Vermont a similar enactment of recent ■ date has been declared to be beyond the power of the legisla- iBent V. Emery, 173 Mass. 495, 2 Barl•o^YS v. McDermott, 73 Me. 53 N. E. 910. For a munber of il- 441. See also Maine Statutes, ch. lustrations, not all of which perhaps 4l2, § 8, right of owner of timber can stand the test of rigid scrutiny, which has been lodged by freshets see Respublica v. Sparhawk, 1 Dall. on the land of another person to 357. As to right of deviation from enter upon such land for purpose of public highway, see Tiffany, Real removal, tendering damages. Property, § 365. 552 APPKOPRIATION, INJUEY, AND DESTRUCTION. § 519 ture.3 But in Vermont, the constitution itself gives the inhabi- tants the liberty in seasonable times to hunt and fowl on the lands they hold, and on other lands not inclosed.-* Provisions of this character may, it seems, be justified by the considera- tion that an owner who does nothing to improve or protect his lands cannot insist upon the fullest legal protection of his right of property, but must at least tolerate customary trespasses. Property may, also, be entered for the performance of a public duty. It has been held in Massachusetts that for the purpose of locating boundary lines entry upon private lands may be justified,^ and the court refers to the familiar instance of selectmen perambulating the lines of towns, legislative com- mittees exploring the routes of proposed railroads or canals, or county commissioners securing the location of a proposed highway.*^ It seems only reasonable that in such cases an action of trespass should not be entertained, and it may per- haps be said that every owner must suffer a brief and momen- tary occupation not amounting to dispossession, when required for pul)lic i)urposes, as one of the conditions upon which all property in the community is held. Even temporary disposses- sion may be legitimate when necessarily incidental to a police regulation, so for the purpose of disinfecting property or exter- minating vermin or weeds or making sanitary improvements.'^ § 519. Property taken of slight value.— 1. Taking samples for inspection. — The dairy or pure food laws of a number of states require that the seller allow the inspecting authorities to take samples without making provision for compensation. It has been ln'ld that this, in view of the legitimacy of the purpose, and of the very trifling amount involved, does not violate the spirit of the constitution.^ While the contrary ••I New Kiighuid Trout &c. Club v. 'I'liose romuiks do uol ul' course Mather, <)S Vt. :?.^S, 33 L. R. A. 5(59. iipply to "temporary" occupation 4 Constu. cliap. L', § 40, Payne v. oxtendinji over weeks or months; Gould, 74 Vt. Ii08, .^'J Atl. 421. such oeeui)ation a'wos a eonstitu- r. Winshnv v. fJifford, ti Cush. 327. tional ri>flit to compensation. iMc- •1 Sec New Jersey Pnli. l^aws, Kcou v. New York, N. H., &c., R. 1MH7, ji. lilli, ;iH 1(1 initliorilv of sur- Co. (Conn.), .^)3 All. O.IO. veyors to eril(!r lands when re(|uired x (',,iniuonwe:iIth v. Carter, 132 for puhl'K- inii)rovements. Mass. 12; State v. l)ui)aniuier, 4fi 7Se.- 111. i{i'v. St., titl<- t';ni:i Michigan, Kentucky, Kansas, but only because it did not provide Iowa, New Jersey, Pennsylvania, ^or notice and hearing. It See Illinois Sorsion Laws, 1901, p. 307. 1^1627, 18 Rymer's Foedera, 813. 65 Minn. 310, 33 L. R. A. 432, where 13 Law March 10, 1819, Ducrocq the act was held unconstitutional. Droit Administratif, § 1282. Illinois, — also Germany. 10 Davis V. St. Louis Co. Conimrs., 554 APPEOPEIATION, INJURY, AND DESTRUCTION. jj 520 NUISANCES. §§ 520-528. § 520. Property imminently dangerous.— Where the condi- tion of a thing is such that is is iiuniinently dangerous to the safet3^, or offensive to the morals, of the community, and is incapable of being put to any laAvful use by the owner, it may be treated as a nuisance per se. Actual physical destruction is in such cases not only legitimate, but sometimes the only legitimate course to be pursued. Rotten or decayed food or meat, infected bedding or clothing, mad dogs, animals affected with contagious diseases, obscene publications, counterfeit coin, and imminently dangerous structures, are the most con- spicuous instances of nuisances per se. The power is chiefly exercised wdiere the preservation of the public health or se- curity of life or limb demands it ; the extreme limit to which it may go in that direction was illustrated where a tenement house in a filthy and unsanitary condition was pulled down dur- ing the prevalence of an epidemic disease.^ ^ But it may also be resorted to for the protection of property, and is applied to trees or animals where destructive vermin or contagious dis- eases threaten the ruin to other property of llie like char- acter.''^ § 521. Summary abatement. — Since a nuisance per se is a source of present and continuing danger, its destruction does not require previous notice to the owner. The rightfulness of the destruction presupposes however that the condition of the property is as a matter of fact hnrin- ful or objectionable, and the ex parte finding of the authorities does Jiot determine this fact conclusively against the owium\ If he cannot get his hearing in advance, he must get it after- ward ; i. e. he has a right to bring an actu)n for the destruction of his property, and the authorities who arc sued nnist justify 1* M<;(;kiT v. V;iii Renssoliicr, 15 with luistinoss to he rebuilt by owii- Wcndoil .'507; hcc also Ferj^uson v. crs, (itiiorwiso proporfy to ^n 1o tiio Solma, 43 Ala. 398, case of a filtliy loid of tlio manor or to tin' coni- arnl wortlilcHS hniiHo affected uitli nuinity. Ordering a liovi.se to be va- tlic smalli)ox; Mont {joinery v. catctl is a coiiiiiioi'. iiiotliod of ilciil HutchiiiHoii, UJ Ala. 573, a dilapi- iiitl willi miisiiiicos of lliis kind; ilatod buililiti); endaiifieriiiK a siilc- rii;i|iiii Mmiiri|i;il S.iiiit;ilioii, p. l.'?H, walk; AnderHoii Onuiii of Com- Kiij^. i'liblic llcaltli .Act, § 1»7. morco. 1535 and 1541, acts dirc.MiiiK "■•Slate v. Main, (i!) Conn. 123, ruined Iiouhch in certain cities filled 3(3 L. li. A. 623. s 520 NUISANCES. 555 their act.'" It" the property pi-oves to have been sound and harmless, the owner is entitled to compensation.'" Since officers thus must act at their peril, they are not apt to exercise their l)OAver of abatement, and this has been urged as a reason why their determination should be held to be conclusive; but the Supreme Court of Massachusetts, in sustaining their liability practically held that a destruction of sound property without compensation would be unconstitutional.''^ The court referred to the decision in Train v. Boston Disin- fecting Company,^ '^ in which it had been held that all imported rags might be required to be subjected to a disinfecting process at the expense of the owner, Avhether in reality infected or not. It was pointed out that there the statute expressly applied to all imported rags, Avhile in the case before the court the authority to kill was confined to infected horses, and some stress was laid upon the trifling values involved in the former case. A more satisfactory distinction between the two cases might be found in the difference between regulation and taking of property. In enacting regulative measures the law need not j-estrict itself to conditions actually harmful, but may require l)reeautions within the whole range of possible danger; while the taking or destruction of property, being an extreme meas- ure, is justified only within the narrowest limits of actual necessity, — unless indeed the state chooses to pay compen- sation.20 i«' Savannah v. Mulligan, 9-5 Ga. plaintiff was not allowed to prove 323, 29- L. R. A. 303; People ex rel. that the property had not in fact Copcutt V. Yonkers, 140 X. Y. 1, been a nuisance, the board's ad- 23 L. R. A. 481; Newark &e. R. Co. judication being held conclusive. V. Hunt, .50 N. J. L. 308. Put the plaintiff had previously IT Miller v. norton, 152 ^lass. ^'I'Peared before the board with 540; Pearson v. Zehr, 138 111. 48. reference to the condition of his r,ropertv, and it was considered IS Miller V. Horton, supra. ',!,', , , i , ^ .■ ■, +•.,„ that he had had substantial notice. 19 144 Mass. 523. and that he could not set up tech- -oln Van Wormer v. Mayor &c. nical irregularities except on cer- of Albany, 15 Wend. 262 (1836), tiorari. As to non-.-onchisiveness the board of health, in time of a of ex parte condeuiuitions of prop- cholera epidemic, had, without erty, see also Salem v. Eastern R. formal notice to the plaintiff, ad- Co., 98 Mass. 431; Shipman v. judged ])roperty owned by him to State Live Stock Comm'rs, 115 be a nuisance, and it was there- Mich. 488; Lowe v. Conroy (Wis.), upon destroyed by order of the 97 X. W. 942; Waye v. Thompson, defendants. Suing for trespass, L. R. 15 Q. B. D. 342. 556 APPEOPEIATION, INJUKY, AND DESTRUCTION. § 522 § 522. Carcasses, garbage, &c.— As long as property is not imminently dangerous or offensive it cannot be treated as a nuisance per se. Thus an ordinance cannot authorise the destruction of property left on a levee because it encumbers the same, where every legitimate purpose would be accom- plished by its removal.-^ This principle is well illustrated by the law regarding the disposal of carcasses of dead animals. They are liable to become nuisances, and if not cared for may be treated as such; but the owner of an animal does not lose his property in it as soon as it dies; he must be given an opportunity to dispose of it since he may realise something from its sale; and to give offal contractors immediately an exclusive control of all dead animals, or even to require their deposit at a designated place is taking property without due process of law.22 Under the statute of Louisiana which was upheld in the Slaughter-house Cases, the slaughter-house com- pany was allowed to take the entrails, etc., of all animals slaughtered ; this provision Avas not passed upon by the Su- preme Court, but seems clearly unconstitutional. So it has been intimated that an exclusive privilege to collect and con- vey garbage cannot be made to apply to such refuse matter as the owner may desire to use or sell, and which is innocuous and capable of being put to useful purposes.23 Under a stat- ute of tlie United States,^^ sunken water craft are not treated as derelict or abandoned until the owner has been given an op- ])ortunity to remove the same. ij 523. Abandoned animals.— In a number of states, fol- lowing a statute of ^Massachusetts of 1881,2^ legislation has been enacted to the effect thnt where an animal is found abandoned <)•• neglected, which ai)pears to hr diseased or disabled Ijeyoiid i-ecovery For any useful purpose, sueli aui- iii;il if IoiukI 1o be woi'tli 110I to exceed live (|olI;irs may lie li.nr.':ir v. Mi.ynr, 4 Lit. ^. '^l T.. U. A. 'JID; ],tj32, C;iiii|)l)('ll \. nistrict of ( "nlimilii;i, 1!) •J^ Undorwooil v. Crcen, 42 Now App. \). i'. 1.31. York 140; River Rondorinc Corn- -■> Sliito v. Orr, (JS ("oini. 101, :U pai.y V. Ficlir, 77 Mo. 01; State v. I,. U. A. 279. Morris. 17 \.:\. Ann. UKiO; ScIkxmi -' Act June 14, ISSd, I Sujipl. 296. r,roH. V. Atliinta, 97 Ca. (597. .3.T T.. -f. Rev. Laws, vh. 9;!, S 1.3. H. A. H04; KiiainT v. LouiHvillc, 20 § 524 INFECTED CATTLE. 557 to animals; the society then to be indebted to the owner for the value of the animal, unless the killin«^ was ren- dered necessary by the owner's cruelty. Acts of this character have been held unconstitutional because failing to provide for notice to the OAvner,-" it being assumed that there is no such urgent necessity for killing the aniuial that there would be no time for some kind of a proceeding in Avhich the owner can be heard. If it is foiuid upon such a proceeding that the dictates of humanity require the killing of the animal, there would seem to be no reason why the owner should be compensated. § 524. Infected cattle.— Most states have enacted legisla- tion, imder which cattle infected with or exposed to contagious disease may be killed by designated authorities. In nearly all these states some compensation is made for the animals so slaughtered. Only one state (Minnesota) expressly restricts compensation to cases where the animal is found entirely free from disease ; in most cases the appraised value is paid, some- times with a statutory maximum limit, and in a number of states one-half or three-fourths of the value is paid if the animal is found to be affected. The purpose is probably to allow the slaughter of animals as a measure of precaution where their condition is not so imminently dangerous as to deprive them of all value or constitute them a nuisance per se. The same principle of compensation is recognised in France,^^ and Germany .28 § 525. Property unlawfully used, and forfeiture. — The power of summary abatement does not extend to property in itself harmless and which may be law^fully used, but which is actually put to unlawful use or is otherwise kept in a condition con- trary to law. So if a certain kind of transportation is a nui- sance this does not justify the tearing up of railroad tracks.^'-' A house of ill-fame may not be torn down summarily;-"' a building where liquor is kept unlawfully for sale may not be 26 Loesch V. Koehler, 144 Ind. 278, 29 Chicago v. Union Stock Yards 35 L. E. A. 682; King v. Hayes, 80 Co., 164 111. 224. Me. 206; Carter v. Colby, 71 N. TT. ^ Wpig]) y, Stowell, 2 Doug. 230, 51 Atl. 904. (Mich.) 332; Ely v. Supervisors of 27 Law of July 21, 1881. Niagara County, 36 N, Y. 297. 28 Law of June 23, 1880. 558 APPEOPKIATIOX, INJURY, AND DESTRUCTION. § 526 destroyed,2i and a canal may not be destroyed because not kept in a clean condition. s- The unlawful use may, however, be punished, and the pun- ishment may include a forfeiture of the property used to com- mit the unlawful act. While in many eases this Avould be an extreme measure, it is subject to no express constitutional restraint except where the constitution provides that every penalty must be proportionate to the offense. The forfeiture of a vessel engaged in unlawful oyster fishing has been up- held by the Supreme Court of the United States."^ The federal anti-trust act of 1890 goes so far as to provide that any prop- erty owned under any contract or by any combination, or pursuant to any conspiracy (and being the subject thereof), mentioned in Section 1 of the act, and being in the course of transportation from one state to another or to a foreign coun- try, shall be forfeited to the United States. § 526. Judicial safeguards.— Such forfeiture is not an exer- cise of the police power, but of the judicial power, i. e. the taking of the property does not directly subserve the public welfare, but is intended as punishment for an unlawful act. Hence forfeiture requires judicial proceedings, either personal notice to the owner, or at least a proceeding in rem with notice by publication. 34 There is perhaps in some cases some confusion between the police power and the judicial power owing to the fact that property unlawfully used may tend to assume the character of a nuisance per se. Animals running at large are not infre- quently impounded and sold upon notice to the owner ; but dogs may, if kept in an unlawful innnncM', be destroyed summarily, because they are at best fiualilied ))r<)perty.='^'^ As long as intoxicating licpior may be used as medicine, or as a lawful article of export, it is not a nuisance pel' se, and cannot be summarily destroyed. =''*^ And while the law may provide :n lOiirj) V. Lcc, 71 III. 193. •>« Smith v. Mnryliiml, IS lion. 71. •■laHubcock v. Buffalo, 56 N. Y. fiCoffry v. Uinhnl Statos, IK! U. L'nS; HO as to n livory Btahle, Miller S. 427; Uiiitod States v. Zuckcr, 161 V. I'.iircli, :!2 Texas 20.S; wlicri' an U. S. 47.'). engine is a iiuiKaiice only on act- •'"'' C'ampaii v. T>aii^l('y, 'M Mich, count of its location, the proper 4.'")1 ; Sontell v. Now Orl(>an.s &c. R. rcninfly in iln removal, Bri^lilnian v. Iv' Co., 166 U. S. 698; P.lair v. I'orc- UriMlol, 6r. Me. 426, 20 Am. Ur\>. hand, 100 Mass. 1.36. 711. •"'•• Brown v. Perkins, 12 Gray 89. § 527 PROPERTY UNLAWFULLY USED. 559 for its seizure and forfeiture where it is l<:ept unlawfully, it may do so only under proper safeguards, and the constitu- tional guaranties against unreasonable searches and seizures have in some cases been insisted upon with great strictness.-*'^ In Connecticut it has, however, been held that where liquor is kept for sale contrary to law, its value for consumption or export will not be considered as that would tend to nullify the statute.-*'^ It has also been held that implements and appara- tus used for gambling, but which may be used for different objects, (as for instance a gaming table), or which may serve the purpose of innocent and harmless amusement, cannot be (.lestroyed without notice to the owner.**'>> Where liquor can serve no lawful use it may be destroyed summarily .4" Where as a matter of notoriety certain arrange- ments in liquor saloons are used for illegal and immoral pur- I)Oses, their removal may be directed, and unless so removed they may be treated as nuisances. The order of removal should be regarded as a regulation and not as the taking of property; it is, therefore, valid, though applied to existing ar- rangements, which, having been declared illegal, can serve no further lawful purpose."*^ § 527. Lawton v. Steele.— The principlen which should gov- ern the forfeiture of property were departed from in the de- cisions of the New York Court of Appeals and -the United States Supreme Court in the case of Lawton v. Steele,"* 2 up- holding a New York statute authorising the summary seizure and destruction of nets used for unlawful fishing, without any judicial process. The chief argument relied on was the trifling value of the property taken (nets worth $15.00 a piece), 37 Fisher v. McGirr, 1 Gray 1 ; clearly intended for unlaw ful use ex- Hibbard v. People, 4 Mich. 125; clusively; Glennon v. Britton, 155 Sullivan v. Oneida, 61 111. 242, where 111. 232, 40 N. E. 594; Frost v. Fec- it is pointed out that the direction pie, 193 111. 635, 61 N. E. 1054; to sell the liquor recognises it as Board of Police Commissioners v. property and is inconsistent with its Wagner, 93 Md. 182, 48 Atl. 455 treatment as a nuisance per se. (slot macliines). See also Garland Darst V. People, 51 111. 286; for a Novelty Co. v. State (Ark.), 71 S. less strict view see tiincoln v. Smith, W. 257. 27 Vt. 328. *o United States Rev. Stat. 2140, 38 Oviatt v. Pond, 29 Conn. 479. 2141, liquor in the Indian country. 39 Lowry v. Rainwater, 70 Mo. *! State v. Barge, 82 Minn. 256. 5H 152; State v. Robbins, 124 Ind. 308, L. R. A. 428, 84 N. W. 911. 8 L. R. A. 438; otherwise as to those -12 119 N. Y. 226, 152 U. S. 133. 5«0 APPEOPEIATIOX, INJURY, AND DESTEUCTIOX. $^ 528 and the disproportiouate cost of condemnation proceedings, — an inadmissible argument where constitutional rights are involved. The dissenting opinion of Chief Justice Fuller, in which Justices Field and Brewer concurred, will appeal to many minds as embodying the sounder doctrine. In accord- ance with the view of the dissenting justices a statute of Ohio allowing the confiscation of nets used in illegal fishing without legal proceedings was held unconstitutional.^^ In a subsequent case the Court of Appeals of New York held that a statute making it a misdemeanor to disturb oyster beds, and providing for the forfeiture of any vessel used in violating the act, by proceedings before a justice of the peace, was unconstitutional as violating the guaranty of jury trial, as being oppressive, and constituting an unauthorised confisca- tion of property for the protection of merely private rights.-*^ This decision certainly goes far toward weakening the author- ity of Lawton v. Steele. Dogs used for unlawful hunting may be killed, since property in dogs is of a qualified nature.^^' ^ 528. Property created or acquired in violation of law.^" —Where the law prohil)its the creation or acquisition of cer- tain property, and thereafter in manifest contravention to it such property is created or acquired, it is perhaps not strictly speaking a nuisance per se, since it is not imminently danger- ous, but it is evidently less entitled to consideration than prop- erty which is merely unlawfully used, since the status of the whole property is illegal ah initio. It has thus been held that a frame building erected in violation of law may be torn down summarily, preserving the material to the owner.-*" But it has been said in Pennsylvania that a wooden house under such circumstances is not n nuisance per se.-^^ 43 Edson V. Cranpjle, 62 Oh. St. saved, Weller v. Snover, 42 N. J. E. 49, 5G N. E. 647. So also leek v, 341. Anderson, .'57 C'al. 2.')1, 40 Am. Rep. ■»•» Colon v. Lisk, l.')3 N. Y. 188, 115. A preliminary seizure is valiil, 47 N. E. 302. Haney V. Compton, 36 N. J. L. 507. -Jr. New York Forest Game ;iiid Where a net is adapted only for Fish Law, § 8. unlawful fisliing it may be de- •"< See also §§ 565, 176-179. Htroyed, State v. Lewis, 134 hid. ^' i-:i(dicnlaub v. St. .Joseph, 113 230, 20 L. R. A. 52, but in that case Mo. 395, 18 L. R. A. 590; King v. m'Tcly a fine was imposed. A fish Davenport, 98 111. 305; lline v. New basket constructed in violation of FTaven, 40 Conn. 478. law may also be destroyed, quaere ■>« Fields v. Stokley, 9!) I'li. St. whether the materials must not bo 306. §529 USEFUL BUT OFFENSIVE I NDUSTIUES. oOl Game unlawfully killed may be destroyed summarily, since no property in it can be aeciuired while the law prohibits its taking-. In this case there is no forfeiture since there is no property right. Statutes however provide for judicial pro- ceedings for confiscation and sale where game is possessed un- lawfully.''^ It may perhaps be said that wherever the forfeited property is sold, judicial proceedings are required, for it is then clear that it is not treated as a nuisance per se.^^ The only proper method of dealing with a nuisance per se is to destroy it. USEFUL BUT OFFENSIVE INDUSTRIES. §§ 529-533. § 529. Status of noxious establishments.— An industrial establishment which is offensive to the senses and the operation of which is attended with noxious effluvia is not a nuisance per se. not at least if it is located in an appropriate place. ^ But it may become so when the character of the neighborhood changes, and .it is in that case no defence either that it is con- ducted with great care,^ or that the complaining public "has come to the nuisance. "^ The theory is that no one can by prior occupancy establish for himself a right to annoy or incommode the public, or, as it has been put, that "the right of habitancy is superior to the exigencies of trade."'* § 530. Exercise of municipal power.— IMunicipal corpora- tions are frequently given power to prohibit and suppress noxious establishments within their limits. This power has been allowed to be exercised with regard to existing establish- ments,^ and it may cover the whole city.*^ It is obvious that property of great value may thus have a very insecure legal status, but practically the power of the courts is sufficient to prevent an abuse of municipal authority. It is well estab- lished that municipal ordinances must not be oppressive, and it would be difficult to find a more striking illustration of op- 49 Illinois Game Law, April 24, State v. Board of Health of St. 1899, §§ 21, 22. Louis, 16 Mo. App. 8. so Sullivan v. Oneida, 61 111. 242. * Greenleaf on Evidence II, § 473. 1 16 Cyclop. Law 1st Ed. pp. 937, ■''.Mass. Rev. Laws ch. 75; Cronin P38. V. People, 82 N. Y. 318; New Or- 2 State V. Wilson, 43 N. H. 415. leans v. Faber, 105 La. 208, 53 L. R. 3 Commonwealth v. Upton, 6 Gray A. 165. 473; People v. Detroit White Lead « Beiling v. Evansville, 144 Ind. Works, 82 Mich. 471; Ashbrook v. 644; ex parte Heilbrou, 65 Cal. 609. Commonuealth, 1 Bush Ky, 139; 36 5G-2 APPEOPKIATION, INJURY, AND DESTRUCTION. :^ 531 pressiveness than the attempted suppression of a great indus- trial establishment or other useful undertaking, ilie prohibi- tion of cemeteries in a sparsely settled district has been de- clared invalid in Illinois,"^ the retroactive prohibition of render- ies in New Yorli.^ § 531. Judicial safeguards.— The question whether nui- sance or not cannot be concluded by the passage of an ordi- nance, still less by an administrative order, although the ver- dict of a jury on an appeal from the order of a board of health may be final.'' The degree of discomfort required for a conviction, and still more for an abatement, will be measured by all the surrounding circumstances so that an establishment which would be a nuisance in a residence district, will not be so regarded in a neighborhood devoted to business and factories, in which life has adjusted itself to the inevitable annoyances of manufacturing industry. In Commonwealth v. Miller,^ " a conviction was reversed because the jury had not been allowed to receive evidence as to the location of the business, the length of time for which it had been carried on, its importance to the community, and the amount of capital invested; all of which, it was held, should have been taken into consideration in determining the question of nuisance. In People v. Detroit White Lead Works^^ it was intimated that the proof upon which the judgment imposing the fine was based would not be considered as binding in a proceeding for abating the business, in which weight would be given to all equities in favor of the establishment. § 532. Status of offensive industries under foreign laws. — With all these judicial safeguards, however, it would seem that the law itself should recognise some limitation of th(^ power over offensive establishments. Such limitations a it found to a greater extent in foreign than in American laws. In England, under the Public Health Act,'^ the defendant in ease of a trade nuisance may show that he has used the best practicable means for abating the nuisance or i)r('venting or counteracting effluvia. 7 Lake Vii'w v. K'usc Hill < 'onio- " Tiiiiiiton v. Taylor. 11(5 Mass. tory, 70 Fll. HH. L'.')4. « Now York Hanitary Utilisation i" 1.30 Pa. St. 77. rritiipany v. Dcparlinont. r.f IMihlic " SL' Midi. 471. Health. 70 \. Y. Snpiil. .^)1(), (>1 .'\i.|>. ''^ IJS and 39 Vict. eh. 55, § 114. Div. KKi. §533 OFFENSIVE INDUSTRIES. jOiJ The French law concern iiifi' (hin<2:eroiis and offensive estab- lishments (decree of October 15, 1810), provicU's that it shall iiave no retroactive effect; hence establishments existing at the time of its enactment were allowed to continue in op- eration, subject to liability for damages to adjoining pro- prietors. An exception is admitted with regard to establish- ments which, under the decree, must in the futiu'e be located away from residences; if these are gravely prejudicial to pub- lie health or other public interests, they may be suppressed ; other establishments cannot be suppressed without paying compensation.^ •" Under the German law provision is likewise made for com- pensation, where the continued operation of an establishment is prohibited,'^ and no distinction is made between unsanitary and merely offensive trades. § 533. Massachusetts law.— In Massachusetts on the other hand assignments of places for the exercise of offensive trades are subject to revocation, and Avhile the consent of mayor and aldermen is required for the establishment of oft'en- sive and noxious occupations, yet the state board of health may forbid their being further carried on if public health or public comfort and convenience so require. The order of a town board of health forbidding an offensive trade within the limits of a town is subject to appeal to the superior court for a jury.'^' DESTRUCTION TO AVOID CALAMITY. §§534-537. § 534. Destruction of property to check the spread of fire.— It is common to cite as an illustration of the right to take prop- erty under the police power, that in case of a conflagration a building may be demolished, if necessary to stop the course of the fire, without any obligation to compensate the owner. If it is true that during the great fire in London the mayor of the city refused to order the destruction of buildings for fear that he might be held liable in damages,'" the principle cannot have been firmly settled in the seventeenth century -. but the IS Block, Dictionnaire, Etablisse- i^ Rev. Laws, cli. 75, §§ 91, 92, 95, ments dangereux 18, 30. 99, 100, 108, 109. 14 Trade Code, §§ 51, 52. i" See Respublica v. Sparbawk, 1 Dall. 357. 564 APPROPRIATIOX, INJURY, AND DESTRUCTION. § 534 older authorities use it to illustrate the law of necessity and the overriding claims of the public welfare;^' and at the pres- ent day courts and writers treat it as established beyond ques- . tion. The • decisions denying the right to compensation may be divided into two classes, those in which the action was brought against the municipality, and those in which it was brought against the person who ordered the destruction. Decisions of the former class throw no light vipon the prob- lem; for even if the destruction were illegal or unconstitu- tional, the political community, whether city or state, Avould, on general principles, not be liable for the unauthorized exer- cise of governmental powers by its officers or agents.^'^ If a statutory remedy is created against the city, it must be strictly pursued, and must fail in cases not covered by the terms of the law.^^ On the other hand, the decisions denying relief against the persoJi or officer ordering the destruction of the property, are based on the theory that overriding and urgent necessity justifies the act of destruction.^'^ The Roman law takes the same view.-^ The decisions make it clear that only the strict- est necessity will excuse the officer. They do not hold that there is an exercise of lawful governmental authority ; neces- sity simply operates to relieve from liability for an act other- wise tortious. In justice, the duty of compensation should fall upon the community, but such a duty can be called into existence by legislation only. It is not surprising that the ordinary principles of the common law should not afford an adefiuate remedy in cases of sudden nnd extraordinary emergency; but a defect of the connnon law is not neces- sarily a principle of constitutional government. Where prop- " Case 'of Prerogative, 12 Rep. Coflin v. Nantucket, ft (Uish. 269; 12; Mouse's Case, 12 Rep. 63. Keller v. Corinis Christi, 50 Tox. iHField V. Des Moinos, 39 To. 575; 614; Russell v. New York, 2 Den. McOonald v. City of Red Winp, 13 461; Itufjjrles v. Nantucket, II Cusli. Minn. 38; White v. City Council of 43.3. Ch.irleHton, 2 Hill (S. C.) 571 ; Tay- ^" Anier. Print Works v. T.nwrence, lor V. Plymouth, 8 Mete. 462; Dil- 3 Zabr. (N. .T. L.) 590, 57 Am. Dec. hm, § 957. ^20; Surocco v. Ceary, 3 Cal. 69; i»Bow man, 12 Me. 403; Buffalo v. Cha- Ind. 201. deayne, 134 N. Y. 163. ■= Illinois City Act V, § 1, No. 62. 567 568 CONFISCATORY LEGISLATION. § 539 ard. The New York Tenement House Law of 1901 contains throughout separate provisions applicable to existing houses and others applicable to houses to be erected in the future. § 539. Prohibition against the use of property.— The rule of prospective operation is invariably observed where its disre- gard would involve the physical destruction of property, not however where retroactive operation only means that property is rendered practically useless and worthless. The latter is the effect of prohibitory liquor legislation in so far as it may destroy the entire value of breweries or of supplies of liquor on hand which the owner cannot personally consume and which he may not dispose of to others. It is true that the technical status of the property as such is not lost, and therefore the owner retains his remedies for recovery, etc. ;■* but it can hardly be denied that for every practical purpose the owner is deprived of his property.^ The courts of Delaware and Rhode Island have taken the view that the prohibition of profitable use merely lessens the value of the property.*^ O^ the other hand, a statute of New York which made the possession of liquor to be used for sale as a beverage a crim- inal offense, and authorised its destruction as a public nuisance, was declared unconstitutional in its operation on liquor oAvned at the time when the statute Avas enacted." In contesting the validity of the Iowa prohibition law of 1860 before the United States Supreme Court, it was contended that a glass of whisky for the sale of which the defendant was tried, was owned by him when the law was enacted. Th(> court regarded the owner- ship as not proved, and treated the act of 1860 as a mere con- tinuation by reenactment of an earlier law;*^ it is, howevoi*. significant that Justice Bradley in a concurring opiiion endorsed by two other justices, expressed himself to the effect that a prohibition hiw cannot interfere with vested rights, and that such rights cannot be removed except by awarding com- • Preston v. Drew, :V,i .Me. ."irjS. liibition. Stickrod v. Coninmii- •'■Tlio .Supreme Court of Mjiinc wcMltli, sr, Ky. 128.'), .T S. W. .^)Sn. nr.tieod the constitutional question "State v. Allmond, '_' Houst. l.iit :i|pp:irently «li.l not <1c..im it (Del.) 6TJ ; St;ite v. Paul, .^ K. I. wortli serious consideration, State iS.I, 1S.')S. V. {''airfield, 'M Me. .^)17. A law t Wym-lianier \. Pe(,|,le. K! N. V. forl>iddinji only sales in very small ."7S. (juantities. as, e. t^., l)y tlie fflass, >< P.artcineyer v. Iowa, IS Wall IJD. constitutes regulation and not pro- § 540 RETROACTIVE PROHIBITION. 5(i9 peiisalioii to the owikt. The same view was later on taken by Justice Brower in a lower federal court.-' § 540. Mugler v. Kansas. — The question was aj^ain pre- sented in Mugler v. Kansas.^'^ The defendants contended that their respective breweries were erected when it was lawful to engage in the manufacture of beer for every purpose (i. e. not only for medicinal purposes), that such establishments would become of no value as property or at least would be materially diminished in value if not employed in the manufacture of beer for every purpose, and that the prohibition upon their being so employed was in effect a taking of property for public use without compensation, depriving the citizen of his prop- erty wnthout due process of law; they contended in other words that (as the court puts it) prohibitory legislation cannot be enforced against those who at the time happen to own property the chief value of which consists in its fitness for such manufacturing purposes unless compensation is first made for the diminution iu the value of their property resulting from such prohibitory enactment. This contention the Supreme Court declares to be inad- missible. It says that the prohibition simply upon the use of property for purposes that are declared, by valid legislation, to be injurious to the health, morals, or safety of the commu- nity, cannot in any just sense be deemed a taking or an appro- priation of property for the public benefit; that the power which the states have of prohibiting such use by individuals of their property as will be prejudicial to the health, the morals, or the safety of the people, is not, and consistently with the existence and safety of organised society, cannot be burdened Avith the condition that the state must compensate such individual owners for the pecuniary losses they may sus- tain by reason of their not being permitted by a noxious use of their property to inflict injury upon the community; that the state by allowing the manufacture of liquors when the breweries were purchased or erected did not give any assur- ance or come under any obligation that its legislation upon the subject would remain unchanged. § 541. Powell V. Pennsylvania.— The legislation prohibiting the manufacture and sale of oleomargarine affected existing property in the same manner as prohibitory liquor legislation. 9 State V. Walruff, 26 Fed. 178. lo 123 U. S. 623, 1887. 570 CONFISCATOEY LEGISLATION. § 541 In the decisions of the state courts sustaining prohibition" this effect upon existing property was not considered. In Powell V. Pennsylvania^^ the defendant offered to prove that the article sold by him was part of a large and valuable quan- tity manufactured prior to the 21st of ilay, 1885. in accordance with the laws of the Commonwealth relating to the manufac- ture and sale of such article so sold by him ; that for the pur- ])ose of prosecuting that business large investments were made by him in the purchase of suitable real estate, in the erection of proper buildings, and in the purchase of the necessary machinery and ingredients; that in his traffic in said article he macie large profits ; and if prevented from continuing it, the value of his property employed therein would Ix^ entirely lost, and he be deprived ol" the means of livelihood. This aspect of the legislation is not discussed in the opinion of the Supreme Court, but perhaps its closing remark refers to it : "It is also contended that the act of ]\Iay 21, 1885, is in con- flict Avith the Fourteenth Amendment in that it deprives the defendant of his property without th;it compensation required by law. This contention is without merit, as was held in ^lugler V. Kansas." Thus the doctrine pronounced Avith regard to intoxicating liquor was without hesitation applied to oleomargarine. The court did not take into consideration the very important fact that in the Kansas case the prohibition to which the destruc- tion of values was incident, was a reserved right, since the manufacture of ]if|uor had been carried on under temporary licenses which had expired.^ ^' Notwithstanding this fact, the Supreme Court had admitted that in liestroAnng the value ol" property invested in the nianufacture of liquor, the legis- lature had probably gone to the utmost vers;e of constitutional niillioiity. Tl was certainly carrying IIh' exercise ol" stale l)ower one step further to destroy values invested in an article and a business iiili-iiisicnllx- harndess .iiid having an unques- tioned legal status; and a retroactive prohibition having this iCl'cct ouulit not to bnvc bc(Mi jdlowed. >' I'dwell V. Commonwealtli, 111 I\:iii. l'^l', wIk^tc it was sanl llial ]'a. St. 'Jfi.*); State V. Aractice, 14 S. I). 429, 85 People V. Reetz, 127 Mi(di. 87. 80 N. W. 002. N. W. .^0^. TliiH ease treats the § 544 EX POST FACTO UlSQUALlFlCATiON. 573 § 544. The test oath cases.— The question wliether condi- tions may be imposed for the right to continue in a business or profession which it may be absokitely impossible for one already engaged in it to comply with, has been presented l<» the United States Supreme Court in some notable cases. The clause of the federal constitution invoked was that forbidding the enactment of ex post facto laws which before the addition of the Fourteenth Amendment was perhaps the only one appli- cable. The Constitution of ^lissouri of 1865 prescribed an oath to be taken by persons holding certain offices and trusts and follow- ing certain pursuits, by which they were required to deny that they had done certain things or had manifested by act or word certain desires or sympathies, the purpose being to prove loyalty to the union during the time of the rebellion. No person was allowed, without taking the oath, to practice as an "attorney or counselor at law, or, as a bishop, priest or clergy- man of any religious persuasion, to teach or preach or solem- nise marriages. Congress by act of July 2, 1862, required a similar oath as a condition for being allowed to appear as attorney or counselor in any of the courts of the United States. These laws were held to be ex post facto and therefore uncon- stitutional, since the exclusion from the profession was in the nature of a penalty; it was not recognised as a police regula- tion for the reason that the past conduct as to which the oath was exacted related to matters which had no connection with the practice of these professions.-'* § 545. Hawker v. New York.— A different view was taken of the effect of a past conviction for crime upon the practice of medicine. A statute of New York of 1893 provided that no person should, after conviction of felony, attempt to prac- tice medicine, on penalty of fine and imprisonment. The defendant at the time of the passage of the act was engaged in the practice of medicine, but had been convicted of felony in 1878. In 1896 he was indicted and convicted for practicing illegally under the statute of 1893 and the conviction was sus- tained by th(^ liighest state court. ^^ The case was carried to 20 CummingR v. Missouri, 4 Wall. -i People v. TTawker, l.')2 N. Y, 277; ex juvrte Garland, 4 Wall. 333; 234. four jnstices dissenting in each case. 574 CONFISCATOEY LEGISLATION. § 546 the federal supreme court on the ground that the act as thus retroactively construed was an ex post facto law. The Supreme Court upheld the act as a valid exercise of the police power, three justices dissenting.^- It Avas held that the state must have continuing poAver to prescribe the conditions under which the practice of medicine may be safely carried on ; that character is essential to safe practice, and that the state may infer from previous conviction of felony the lack of proper character qualification. "Whatever is ordinarily connected with bad character or indicative of it, may be prescribed by the legislature as conclusive evidence thereof." That the rule may work hardly or the test fail in particular cases, can be no objection, for all tests of character are liable to failure. § 546. Criticism of Hawker v. New York.— The decision is open to serious question. It may be conceded that the state may pass a law under which licenses to practice medi- cine may be refused to those who have been convicted of felony before the enactment of the law. The previous con- viction makes a presumption of bad character, and as there can be no conclusive evidence of bad character, a strong pre- sumption may be sufficient to exclude from entrance upon a pursuit to which the applicant has no vested right, and as to which the burden of proving qualification nuiy be tlu-owii upon him. Hut conditions are altered aftei- he li.-'.s IxH'omc established in llie business.^:* lie has now ae(|uii-e(l a right, still subject to regulation, still subject to i)roof of qualifica- tion, but the i)r()()t' must not be made impossible. He may, perhaps, after previous conviction, be required to overthi'ow the presumption of bad character by proof of unblemished life and good reputation; but under this statute he is abso- lutely debarred fi'oiii showing, what may be the fact, that he has reformed.-' The statute is not a proi)er police regulation i!''! Hawker v. New York, 170 U. S. sliould l>e esteeniod ninro s;ur»>(l tli.iii I^Cf^ Ili(> right to niiike coiitracls by '.;;tTliiH is (IciiiiMl ],y tli.' Sii|irciiic ■\vliicli pro)>orty iniglit be Mcquirod? " Court of Oliio: "The (listiint idii 1m- Sl;i1r v. (Iravett, 65 Oh. St. 289, 6li tween the right to establish a prac- N. E. .T-T), r).'5 L. "R. A. 701. Does tien and Ihe right 1<> imrsiie a j>ra<- the Suiireiue Court of Ohio mean to lice already cHtablislK'd seems to be deny the peculiar sanetity of vestetl inadmissible. T^y \\hat process of rights? reasoning <'ould it V)e maintained -' fn this respect the st^iliitc in that the ri^'ht to enjoy properly rjuestion dilTers from one whicli us- ^:, 17 RETKOACTIVE PKOHIBITIOX, 575 since it establishes a conclusive presumption of fact the neces- sary effect of which to take away an acquired right; it cannot be maintained as establishing a cause of forfeiture, since in making the conviction of a felony conclusive evidence of bad character when it was not so before, it adds to the punishiiKMit after the offence has been expiated, and is therefore an ex post facto law. The decision in Hawker v. New York seems to be without a parallel ; the ease of Foster v. Police Commissioners,-'' cited by the Supreme Court, was not, as stated by it, one of an ordinance revoking a liquor ordinance for past acts, but in that case the license had expired and its renewal was applied for and refused. There was no vested right to such renewal.^*' § 547. Prohibition of oleomargarine business.— In sustain- ing the prohibitoiy oleomargarine legislation of Pennsylvania, the Supreme Court sanctioned not only the constructive tak- ing of valuable property by making its profitable use impossi- ble, but also the destruction of an established business. It has already been shown that the analogy of the liquor business relied upon by the court was fallacious, since the latter was carried on under revocable license.. If Powell v. Pennsylvania tiiblishes a disqualification, of con- parently on tli3 theory, that under tinning operation, e. g., excluding the police power the question of one affected with a contagious dis- qualification may be raised continn- ease from practicing, or forbidding ally de novo. State ex rel. Chap- railroad engineers affected with man v. Board of Medical Examin- color blindness to continue in their ers, 34 Minn. 387, 26 N. W. 123; employment. Traer v. State Board of Medical -■-'102 Cal. 483. Examiners, 106 la. 559; Meffert v. -<■' The revocation of a licpnse for State Board of Medical Ecgistra- cause occurring or operating during tion (Kans.), 72 Pac. 247. See also continuance in practice may be pro- People v. McCoy, 125 111. 289. If vided for so as to apply to those the right to practice a profession already established in the profession after license once granted is to be as well as to future practitioners, regarded as an acquired or vested for this is an exercise of the continu- right — and it seems it should be so ing power of regulation. The scri- considered — then the final adjudica- (lus question in this connection is tion of a cause of forfeiture should whether the power of revocation belong to the courts. The question may be conclusively ' vested in an is one of the doctrine of separation ndministrntivo board, without right of powers and as such does not of appeal to the courts. The pre- properly fall within the scope of ■ ponderance of opinion seems to be this treatise, that the power may be so vested, aji- 576 CONFISCATORY LEGISLATION. § 54H is to be accepted as sound constitutional law, an established business can be destroyed to further a new legislative policy for the promotion of health or the suppression of fraud, although the business destroyed is neither unsanitary or fraud- ulent. Such destruction Avould be impossible under the tradi- tions and understandings which bind the practice of European governments. The present state of the authorities in America cannot be regarded as satisfactory. B. EXPENSIVE ALTERATIONS AND IMPROVEMENTS. §§ 548-549. § 548. What is an excessive requirement.— Regulation will amount to confiscation, although the owner retains possession, use, and power to dispose of his property, Avhere he is required either to make such expensive alterations or improvements, or to accept such low remuneration in return for the use of his property, that the property ceases to be profitable. If, notwithstanding the imposed expenditure or the reduced compensation, the business or property continues to yield a reasonable profit, there is no more than regulation, for in that case the requirement may be looked upon as merely the enforce- ment of conservative, economic management, under which the owner simply foregoes a profit which he could make only by the sacrifice of legitimate public interests ; but if the requirement is entirely disproportionate to the value and the possible returns of the property, the practical effect is the same as if the property were actually taken. The question of the constitutionality of excessive require- ments in the way of improvements and alterations has received comparatively little discussion. The most conspicuous instance is that of the abolition of railroad grade crossings. The requirement has been upheld in the state courts and liy llie Ignited States Supreme Court. 2" This legislation shows tliat the absolute amount of the expenditure afToi-ds no criterion of the validity of the re Cottiny v. Kmii. City Stock "I'lls. •■■•■« St.' liOiiis & S. I". 1{. Co. V. Cill. Co.. ls;rr. S. 7!t. Sop niso Cjoi. S. 156 IJ. S. ()4!t. 1^ Co. V. iiilcrii.'itl. Rriil^c <.'<>., L. :"!■' Sco Minneapolis & Si. li. K. K. S App. Caa. 723. Co. V. .Minni'Hota, ISG C. S. -07. g 553 KEDU(JT10.\ OF (JllAKCiES. 579 rule. It is characteristic of all orgauized industry that it sup- ])lies many demands at the same time, and our wlioie economic life is adjusted to that fact. How much some particular serv- ice, as e. g. carrying a letter from America to PJurope, would be worth apart from the general transportation of the mails, is wholly undeterminable, o*- at least such a consideration cannot be the basis of legislation. The statement must be understood in connection with the circumstances of the case in which it was made, and then means that if a business by the industry of the owner, without privileges from the state, has attained exceptional magnitude, the owner must not be deprived of the advantage thereby gained, and has still the right to the same returns as the smaller competitor. In other words, the prin- ciple of equality demands that one man be not discriminated against by law simply because by his own exertions he has gained an advantage over another. § 553. Value of property.— Barring this question of equal- ity, the obvious test of the reasonableness of a rate is whether it allows a fair return upon the value of the property invested in the business, after paying for expenses of operation and management. This is the test laid down by the Supreme Court in Smyth v. Ames.-"'^ The application of the test, however, requires a determination of what is a fair return and what is the value of the property invested in the business. As to the value of the property, the Supreme Court says: "The original" cost of construction, the amount expended in permanent improvements, the amount and market value of its bonds and stock, the present as compared with the original cost of construction, the probable earning capacity of the property under particular rates ])rescribed by statute, and the sum required to meet operating expenses, are all matters for consideration, and nre to be given such Aveight as may be just and right in each case."-'^'' Throe of Ihese items deserve par- ticular consideration because in most cases it will be necessary to make a choice between them: cnpitalisation, cost of repro- duction, and actual cost. It is well known that capitalisation in many cases represents hopes of rnturc earning capacity rather than actual money invested, and even the market value 3T 169 U. S. 466; also San Diego ation wIumc waterworks are taken &c. Co. V. Nat'l City, 174 U. S. over by public, see Kennebec Water 739, 757. District v. Waterville, 97 Me. 185, 38 169 U. S. 466, 547. As to valu- and cases there cited. 580 CO^'FiSCATUKi LEUibLATiUN. § 554 of stocks and bonds is not a safe criterion, since it is based on earning capacity, and the reasonableness of earnings is the point at issue. The cost of reproduction, as has been pointed out,33 ^^.^y not be fair, where a pioneer enterprise by its existence has cheapened the cost of future simihir works. The actual cost, imderstanding thereby the actual necessary cost and not extravagant expenditures, would, in most cases, be the fairest basis of estimating returns; at least for a rea- sonable period after the enterprise has gone into operation. The Supreme Court has, however, intimated that original cost need not be considered where the present owners acquired the property at a reduced price.-*^ It can certainly not be said that the Supreme Court has committed itself to a definite principle of valuation. § 554. Fair return. — The question what is a fair return is still more unsettled. In Covington & Lexington Turnpike Co. V. Sandford^i tlie Supreme Court said : "It cannot be said that a corporation is entitled as of right, and without refer- ence to the interests of the public, to realise a given per cent upon its capital stock." This statement seems to be made without reference to possible excessive or fictitious capitalisa- tion; and it receives additional significance from the remarks made by Brewer, J., in Cotting v. Kansas City Stock Yards Company4 2 ^yith reference to a business discharging a public service. "[The owner] expresses his willingness to do the work of the state, aware that the state in the .jischarge of its public duties is not guided solely by a question of profit. It may rightfully determine that the particular service is of such importance to the public that it may be conducted at a pecu- niary loss, having in view a larger public interest. At any rntc, it does not perform its services with the single idea of profit. Its thought is the general public welfare. If in such a case an individual is willing to undertake the work of the state, may it not be urged Hint he, in a measure, sub- jects hiniseir 1o 1lie sniiie fules of iietion, and 1li;it il" llie Ixxly which expresses Hie .iu federal (•(institution renders impossible many of the devices formerly • Stato V. TTawthorn, Mo. 389, " Tliis was pointod out in Peoplo 1H45; State v. Miller, 50 Mo. 129, v. TTawIoy, 3 Mich. :VM). 1872; Gregory 'fi Executrix v. Triia- ^ ]{(, Ten Hour Law for Street teen of Shelby Collejje, 2 Met. (Ky.) Uiiiln.ad Corporations (R. T.), .'54 r,H9, lHr,9. AM. ()02. •'• DouuiaH V. Kentucky, IG.S U. S. 488. j; 35S RETEOSPECTIVE LEGAL TENDER LAWS. 585 resorted to by the sovereign power to relieve debtors from existing obligations, such as the annulment of existing debts, the retroactive reduction of the rate of interest on loans,^ all stay and respite laws,'' and the retroactive operation of homestead and exemption laws.^'^ Nor is it within the power of the states to enact insolvent laws operating on debts previ- ously incurred.^ ^ But in the absence of a specific prohibition the relief of debtors by bankruptcy legislation is commonly r-egarded as a legitimate exercise of sovereign power, and the retroactive operation of the federal bankruptcy acts has not been questioned.^ - § 558. Retrospective legal tender laws.— Another device of relieving debtors consists in legislation which allows existing obligations to be discharged in a currency inferior to that which was legal tender at the time the obligations Avere incurred. It has been maintained by the United States Supreme Court in the Legal Tender Cases^^ n^^i such legisla- tion does not impair the obligation of contracts, since parties are supposed to contract with reference to the continuing power of Congress to determine what shall be money. But the very idea of a law impairing the obligation of contracts presupposes that parties do not contract subject to the expecta- tion of any and every change in governmental regulations. "If one law enters into all subsequent contracts, so does every other law which relates to the subject. A legislative act, then, declaring that all contracts should be subject to legislative control, and should be discharged as the legislature might prescribe, would become a component part of every contract and be one of its conditions. Thus, one of the most important 8 See § .555, supra. 34 ; Lapsley v. Brashear, 4 Littell 9 Barnes v. Barnes, 8 Jones L. 47. (N. C.) 366, 1861; Billmeyer v. n Sturges v. Crowninshield, 4 Wh. Evans, 40 Pa. St. 321, 1861, as to 122, 1819. lettres de repit and moratoria see i- The Constitution of the Con- Rescher I 286; Just. Cod. 1, 19: 2. federate States (VIII, 4), however, 10 Gunn v. Barry, 15 Wall. 610. provided, in giving power to estab- For another illustration of devices lish uniform laws on the subject of to aid debtors see the relief legisla- bankruptcies: "but no law of Con- tion of Kentucky of 1S18, the judi- gres>. shall discharge any debt con- cial condemnation of which was tracted before the passage of the sought to be nullified by legislative same." action; Blair v. Williams, 4 Littell i-? 12 Wall, 457. 586 CONFISCATOEY LEGISLATION. ^ 559 features iu the constitution of the United States, one Avhieh the state of the times most urgently required, one on which the good and the wise reposed confidently for securing the prosperity and harmony of our citizens, would lie prostrate, and be construed into an inanimate, inoperative, unmeaning clause. "^^ It is a technical and specious argument to say that con- tracts for the paj-ment of money are engagements to pay with lawful money of the United States, that Congress ' is em- powered to regulate that money, and that therefore every change in money is within the contemplation of the parties. The controlling factor is that a retrospective legal tender act directly alters the substance of contractual obligations, giv- ing to the same words a different content. The dissenting- judges in Hepburn v. Griswold,^-'* whose opinions later on prevailed in the Legal Tender Cases, frankly recognised this. Justice iMiller saying: "Undoubtedly it is a law impairing the obligation of contracts made before its passage. But while the Constitution forbids the States to pass such laws it does not forbid Congress."" It is therefore impo.ssible to ac- cede to the statement iinulc in Ihe L(>gal Tender Cases that "there is no well founded distinction to be made between the constitutional validity of an act of Congress decbaring Treas- ury notes a legal tender for the payment of debts contracted after its passage, and that of an act making them a legal ten- der for the discharge of all debts, as well those incurred before as those made after its enactment."'" §559. Contracts to pay in specific kind of money.— In ar- guing that retrospective legal tender acts did not impaii- the obligation of contracts, Justice Strong was careful to add: "We speak now of contracts to pay money generally, not con- tracts to pay some specnfically defined species of money." Contracts of the lattei- kind have been held to be eiiloicenlile ;ii*eof(ling to their lei'nis. jind not intended to be covereil by the legjil tender acts.'' Should ;i legal tenilcni-k v. Wilson, ll' Wall. (IST. SamiderH, 12 Wh. 213, .3.30. As to loKiHlation of California and "■' H Wall. (50.3. Nevada cxjircsHly lo{jaIisin>j sjx'cii' 11 1L' Wall. 4.'")7. r.30. crntraids, sco R. T'. Brcckinridfre, iTBroHHon V. K.kIch, 7 Wall. -'Lli) ; Legal Tender, p. 15G. § 560 SCALING LAWS. 587 enactment, it would beyond any doubt impair the obligation of sueli contracts. § 560. Scaling laws.— After the downfall of the Confed- eracy, statutes were enacted in the Southern states providing that in actions to enforce contracts entered into during the war, evidence might be given as to the understanding of the parties regarding the currency in which they were to be per- formed, and judgment should be given only for the true vahic of the treasury notes at the time of the contract, as mea.sured by lawful money of the United States. These statutes were; upheld by the United States Supreme Court.^*^ But it was held that an alternative provision to the effect that judgment might be given for the true value of the propert}' sold or the fair rent or hire of it, was invalid, as substituting for the stipu- lations of the parties a new and different contract never made by them.^^ 18 Eflfinger v. Kenney, 115 U. S. ginia see Faw v. IMarsteller, 2 Cr. 566. See, also. Cook v. Lillo, 103 U. 10. S. 793; Stewart v. Salamon, 94 U. ^i' Wilmington &c, R. Co. v. King, S. 434; Thorington v. Smith, 8 Wall. 91 U. S. 3. 1. For an early scaling law of Vir- CHAPTER 5XVI. PUBLIC GRANTS AND LICENSES. § 561. In general.— The clause of the federal constitution forbidding states to pass laws impairing the obligation of contracts applies to contracts made by the state itself. In the first case in which legislation was annulled as impairing such a contract, the contract was in reality an executed grant.^ A right of this character would perhaps now be more aptly pro- tected under the Fourteenth Amendment. In the case of New Jersey v. "Wilson,- a statutory exemption from taxation, and in Trustees of Dartmouth College v. Woodward^ the charter of a corporation, was held to be a contract. In order to invoke federal protection against state legislation not of a penal char- acter, the aggrieved parties had before the Fourteenth Amend- ment to show that the alleged right which was menaced by the state, was in the nature of a contract, and hence the doc- trine of vested rights has become closely associated Avith the theory of contracts. Wherever then a claim is made that a right has l)een granted by positive statute or ordinance, and legislation is passed which is hostile to the claim, the question must be : is the subject- matter (franchise, license, privilege, or exemption) of such a nature that the state can bind itself with regard to it by a contract"? and if it is hehl that the state can make a binding contract with regard to it, the further question may be: has it made such a contract? which may be a (piestion of intent, or of consideration. Tn the case of municipal action it must also be asked whctlirr power to make a contract Avas dele- gated by statute. The following jin- llic |)fiiicip;il classes of rights resting upon positive grant : liiccnsi's to |)ni'suc ;i business prejudicial to safety or nioi-ils; nseCul but olVensive und(U'takings eai-ried on umlei' license; cxeiiipl ions IVom personal services. IVom li;iliility I'oi' (lebts. ••Mill IVom taxation: corporate powers and privileges; and licenses to use public |)i-operty (street and orivr fi-ancliises). 1 I'lrlcliiT V. I'cik. C, rnincli .S7. :"1 Wheat. 518. -•7 r'raiwli Kil. 588 is 562 LICENSE TO PURSUE DANGEROUS BUSINESS. 589 LICENSE TO PURSUE A BUSINESS PREJUDICIAL TO SAFETY OR MORALS. §§ 562-564. § 562. Statement of principle.— It has been shown before that the establishment or eontiuuance of a business may be prohibited, if it is prejudicial to safety or morals. A business of this kind may be tolerated, because it meets a demand so strong that it cannot be effectuall}' suppressed, and because the state may desire to minimise the evil effects of the business by placing it under control, and issuing permits or licenses for its conduct. How does such charter or license affect the power to pro- hibit ? While it is in force, the business, if properly conducted, cannot be an indictable nuisance ; but does the license consti- tute a contract or a vested right that cannot be impaired by subsequent legislation ? The preponderance of opinion is that such a license is not constitutionally protected. § 563. Lotteries.— This principle has perhaps been laid down most unequivocally with regard to lotteries. A lottery license not yet acted upon had been declared revocable in ^Missouri in 1844.'* In 1850 the Supreme Court of the United States held that subsequent legislation might place a time limit upon a lottery privilege previously granted, especially as the first grant had been without consideration and had probably be- come inoperative by non-user.^ In Alabama a statute estab- lishing a lottery was at one time held to be a contract, but was later on held to be unconstitutional.^ Lottery privileges were held to be revocable in North Carolina" and in Mississippi, in the latter state although a bonus had been paid which was not returned, the court admitting the bad faith, but stating that it had no concern with this.^ The doctrine was eon- firmed by the United States Supreme Court in 1879.'^ A eliarter had been granted authorising a company to conduct 4 Freleigh v. State, 8 Mo. 606. Mississippi Society of Arts &e. v. •'"> Phalen v. Virginia, 8 How. 163. Musgrove, 44 Miss. 820, 7 Am. Rep. « See Boyd v. State, 46 Ala. 329 ; 723, the bonus had been tendered Boyd V. Alabama, 94 U. S. 645, but refused, and it was therefore 1877. l\eld that no rights had vested under " State V. Morris, 77 N. C. 512, the statutory grant. 1877. Stone v. Mississippi- KM V. S. 8 Moore v. State, 48 Miss. 147. In 814. 590 PUBLIC GEANT AND LICENSES. § 563 a lottery in the state for twentj'-five years, in return for which the company had paid a lump sum and had agreed to make annual payments, a number of which the state had received. Notwithstanding this, the prohibition of the sale of lottery tickets, without compensation to the company, was upheld. But it also appeared that for forty-five years prior to the grant of the charter the conducting of lotteries had been prohibited in the state and punished as gambling. A year after the grant of the charter the people by a new constitution reinstated the prohibition. Under these circumstances, the court was of the opinion that it was not within the power of the legislature to bargain away the moral interests of the people, and the charter was held not to be a contract. "Any one, therefore, who accepts a lottery charter, does so with the implied un- derstanding that the people, in their sovereign capacity and through their properly constituted agencies, may resume it at any time when the public good shall require, and this whether it be paid for or not. All that one can get by such a charter is a suspension of certain governmental rights in his favor, subject to withdrawal at will. He has, in legal effect, nothing more than a license to continue on the terms named for the specified time, unless sooner abrogated by the sovereign power of the state. It is a permit, good as against existing laws, but subject to future legislative or constitutional control or withdrawal." This decision has been accepted as settling the principle that a lottery grant cannot constitute a contract or a vested right under the federal constitution, irrespective of any particular ('([uities, and notwithstanding the fact that there have been dealings upon the faith of the grant. "^ Stone v. Mississippi has been followed in yirginia,^^ and in Indiana has led to the reversal of earlier decisions protecting rights under lottery grants.' 2 'riir ICnglish art of 169S for tlic suppression ol" private lot- tci-ics assumed Hint lliey were i)ublic nuisances, juid that the licenses under which they were conducted were void.^^ K' DouKliis V. Kf'iiturky, IflS U. S. n.Tustico v. Commonwealth, 81 488, overruling earlier Kentucky Va. 209. floctrino ('luinciatoil in fJrcgory'H i-;KoIhiin v. State, fiO IikI. .188, l^xtrx. V. Trustp/>H of Rliclliy Cnllcjro, coinj). w. Sfate v. Woodward, S9 Ind. J Met. 089. 11(1. i-i Id .■iiid 1 I W'illiiim 1 I I, f:i|>. 17. § 5G4 LIQUOR LICENSES. 591 ^564. Liquor licenses. — A license to sell liquor is held not to be a contract, and may therefore, though unexpired, be re- voked by prohibitory legislation. In 1852 the Supreme Court of Ohio refused to interpret a statute as revoking unexpired licenses for which payment had been made, intimating that such revocation, though not beyond the legislative power, would be an act of bad faith.^"* In 1853 it was said in a New Hampshire case that the revocation of an unexpired license would be unconstitutional,^^ but the determination of the question was not essential to the disposition of the case. In 1856, however, it was held in ]\Iassachusetts that a license to sell liquor did not create a contract, but that its effect is only to permit a person to carry on the trade under certain regu- lations, and to exempt him from the penalties provided for unlawful sales. ^^ This doctrine has since been accepted in all states in which the question has arisen, even in New Hampshire, where the contrary opinion had been formerly expressed.'" The Su- preme Court of the United States would probably take the same position, although the precise question has not come be- fore it.i^ The doctrine represents an extreme application of the theory that the state cannot by any act of its own hamper or burden the future exercise of the police poAver. As the law noAv stands, every license to sell liquor is revocable by subsequent law, whether so stated in terms or not, and the legislature has no constitutional power to make the license a vested right. "If the act of 1857 had declared that licenses under it should be irrevocable the legislatures of subsequent years would not have been held by the declaration. "^^ It is, however, to be i4Hirn v. State, 1 Oh. St. 15. S. E. 302; Pleuler v. State, 11 Neb. 15 Adams v. Hackett, 27 N. H. .547, 575. Also MetropoL Bd. of 289. Excise v. Barrie, 34 N. Y. 657, and icCalder v. Kurby, 5 Gray 597. La Croix v. County Commissioners 17 State V. Holmes, 38 N. H. 225 ; of Fairfield County, 50 Conn. 321, McKinney v. Salem, 77 Ind. 213; where however the licenses were by Moore v. Indianapolis, 120 Ind. 483 ; their terms revocable. Fell V. State, 42 Md. 71 ; Columbus is See Beer Co. v. Massachusetts, City V. Cutcorap, 61 Iowa 672; i»7 U. S. 25; Mugler v. Kansas, 123 Powell V. State, 69 Ala. 10; Brown U. S. 623. V. State, 82 Ga. 224; Melton v. lo Metropolitan Board of Excise Mayor of Moultrie, 114 Ga. 462, 40 v. Barrie, 34 N. Y. 657. 592 PUBLIC GEANT AND LICENSES. § 565 noted that the New York liquor tax law of 1896 contains an express saving of existing licenses.^^ Where holders of licenses are exempted from the operation of the new act for a certain period, they cannot, under the pre- vailing doctrine, complain that the period was too short to enable them to dispose of the stock on hand.-^ USEFUL BUT OFFENSIVE UNDEETAKINGS CARRIED ON UNDER LICENSE.22 § 565. Cemeteries, markets, etc.— The same view has been taken of licenses and other acts claimed as sanctioning estab- lishments, undertakings and arrangements prejudicial to pub- lic health and comfort. Thus the theory that a charter of a corporation is protected as a contract is inapplicable to new regulations or restrictions imposed in the interest of public health or safety.^-^ A deed of a city conveying land for a cemetery with covenant of quiet enjoyment does not prevent the subsequent enactment of an ordinance prohibiting the interment of the dead within the city limits -,2^ but here the first conveyance was hardly in the nature of a license. So it was held in Virginia that the city might direct the removal of a powder magazine after it had conveyed the ground for that express purpose.^''' In IMassachusetts a license from the board of aldermen to maintain a slaughter house is no protection against an order of the board of health prohibiting the carry- ing on of the business.^*' And in Louisiana^" a market legally established may be suppressed at any time, if it is deemed ex- pedient to confine the sale of meats to public markets. The same has been held in that state with regard to slaughter h(»uses.28 iioChap. 29 of General Laws, § 4. purposes cannot be destroyed by 21 So held with rej^urd to the busi- legislative authority, where there is ness of Belling pistols in State v. no pretense of sanitary necessity. Burgoyne, 7 Lea (75 Tenn.) 173, Stockton v. City of Newark, 42 N. 4(1 A.M. Rep. 60. .T. Eq. 531, 9 Atl. 203. •--.: See, also, §§ 17()- 179, 529-533. i:.-, Davonport v. Eichninnd City, 2.'t Thorpe v. Rutland &c. R. Co.. 81 Va. (530. 27 Vt. 140; Northwestern Fertilis- 20 Cambridge v. Trelegan. isl ing Comj)any v. Hyde Park, 97 U. Mass. 505, 64 N. E. 204. S. 659. -^ New Orleans v. Stafford, 27 La. -•4 Urirk I'rcshyterian Church v. Ann. 417; New Orleans v. Faber, Mayor, 5 Cow. 538; Coates v. Mayor, 1"5 I -a. 208, 53 L. K'. A. 165. 7 Cow. 585. ■'" Villavaso v. Barf hct, 39 La. Tlowevcr, a trust accf'ijfr'd by a Ann. 247, I So. 599. city to hfild property for ccmf'tcry §560 TKADJ: NUISANCES.— KXEMKnONS. 594 The cases in which ordiuancfs uU(.'iii]jliny tj suppress ex- isting establishments were declared invalid rested on special circumstances. So it was held in Louisiana that a munici- pality having given its consent to the location of a cemetery established under statutory authority could not shortly there- after prohibit cemeteries as nuisances ;2'J and in New York a license to erect a frame building was declared irrepealable after construction commenced ; but the repealing ordinance was held not to be within the delegated power of the city, nor lo have been enacted in the exercise of the police power. •^" In the case of trade nuisances, as in the case of the liquor or lottery business, the theory is that a license cannot bind or prejudice the subsequent exercise of the police power. It cannot be denied that this theory may result in practical in- justice to private interests. Note in contrast the provision of the German Trade Code'^i which allows the suppression of licensed establishments only on payment of compensation. EXEMPTIONS. §§ 566-568. § 566. From personal services. — It is generally held that the state cannot bargain away its power to call for the ser- vices of its citizens when needed for the public welfare, and that therefore an exemption cannot constitute an irrevocable right. Not even the full performance of the equivalent for which the exemption was granted will protect the citizen from its revocation,32 only two states treating the exemption in such a case as a vested right,-^-^ while in Georgia the statute was interpreted as making by implication an exception in favor of those who had earned their exemption. 3-* It has been admitted that the revocation, though valid, may consti- tute a breach of public faith. § 567. Exemptions from liability for debts.— This matter 20 New Orleans v. St. Louis ^- Commonwealth v. Bird, 12 Clhurch, 11 La. Ann. 244. Mass. 443, military service; Ke 30 Buffalo V. Chadeayne, 134 N. Scranton, 74 111. 161, jury service; Y. 163. In California a permit for Bragg v. People, 78 111. 328 ; Dun- the location of gas works, although lap v. State, 76 Ala. 460, jury work had been commenced, was held service; Gatlin v. Walton, 60 N. C to yield to a subsequent ordinance 325, military service, forbidding the erection and mainte- ^^ Ex parte Goodin, 67 'Mo. 637, nance of such works. Dobbins v. .iury service; Zimmer v. State, 30 Los Angeles, 72 Pae. 970. Ark. 677. 31 § 57. 34 Bloom V. State, 20 Ga. 443. 38 594 PUBLIC GRANT AND LICENSES. § 568 does not touch tlie police poAver directly. It has been held that the legislature may Avitlidraw the privilege of limited liability from corporations as regards debts to be incurred in the future, one of the arguments used being that it is free to the stockholders to cease incurring debts.^^* This argument is hardly satisfactory, and it may be urged that the incident of limited liability affects so vitally the value of corporate shares as to constitute an integral element in that class of property.^*' Under a reserved power of alteration the privi- lege may be withdrawn."' The non-liability of a married woman's separate property for family expenses is very clearly only a rule of law without any of the elements of a vested right, and such liability for debts subsequently incurred may be imposed at any time.^s The same is held with regard to homestead exemptions.-^"' § 568. Exemptions from taxation. — The Supreme Court of the United States held at an early date that such exemption may constitute an irrevoca])le contract.^" The doctrine has been resisted by some of the state courts,^ ^ and has been to a considerable extent interpreted away by subsequent decisions of the Supreme Court, so that now there is a strong presump- tion against its application."*- It is believed that the following rules fairly summarise the present status of the doctrine: 1. An exemption contained in a special charter may con- stitute a contract, if clearly expressed, and the contractual exemption may be perpetual, and extend to all future ac- quisitions, even such as are made subsequent ^to the repealing act.-*"' 2. Tlif rxcniption reiinircs a considcralion in order to be ••'r. Stanley v. Stanley, ilO Mv. T.»L Ills; l>ittle v. Bowers, 17 Vroom ;io Morawctz on Corporations. § X. •!. ;>nO. j07g_ •jpiioonix &<■. Co. v. T(>nnossco. "Sherman v. Smitli. 1 I'.la.k HsT ; 161 U. S. 174: "II .annot )..- .I.Miie.l (iardncr v. Hope Insuraiici- Co., it H. thai tlir il.'cisions of this courl ar(! \. 194; Bissell v. Heatli, 08 Mi<-li. sotncwhat involverl in relation to this ^■j2 New JcrHoy v. Wilson. 7 <'raiicli issiieil siihsetpient 1o the prohibition 164 1812. "f exemption \>y a new constitutional *i Brewster v. IToii^h. 10 N. H. provision. Bank of Commerce v. Tennessee, 16.3 U. S. -116. ^569 EXEMPTIONS FROM TAXATION. 595 binding as a contract, and may therefore be revoked, if granted to a corporation with regard to property which it already holds.-*^ So also where corporate land exempt from taxation is authorised to be conveyed, and the conveyance is made, the exemption is lost.-*"* 3. "Where the state has reserved the power to alter, amend or revoke corporate charters, the exemption from taxation may be taken away in the exercise of such reserved power^"' unless the reservation of power is by statute only and the sub- sequent act shows clearly the intent to make a contract un- affected by the right to repeal.-*' But if another payment is made in lieu of taxes, the exemption cannot be revoked and the continuance of paj^ments be demanded at the same time.'**' 4. A general hnv granting exemption will be regarded as a legislative gratuity or bounty, freely revocable at any time.-*'^ This view was even taken where the exemption \vas in con- sideration of public services rendered, some stress being laid upon the fact that the service was compellable, and hence perhaps not a sufficient consideration for the exemption. -^'^ CORPORATE POWERS AND PRIVILEGES. §§ 569-572. i; 569. Dartmouth College doctrine.— The doctrine that a corporate charter is a contract, together with its modifica- tions, has been considered before. ^ In so far as it makes cor- ])orate powers irrevocable grants, it operates as an exemption of the corporation from legislative regulation ordinarily held to be Avithin the police power; and this is ('specially true where the exemption is claimed for powers and privileges not 4-t Christ Church v. Philadelphia ■*" New Jersey v. Yard, 95 U. S. County, 24 How. 300; University v. 104. People, 99 XT. S. 309; Tucker v. -ts Stearns v. Minnesota, 179 U. S. Ferguson, 22 Wall. 527; West Wis- 223. cousin R. Co. v. Supervisors of *'■' Salt Company v. East Saginaw, Trempealeau Co., 93 U. S. 595; 1.3 Wall. 373; Welch v. Cook, 97 Grand Lodge v. New Orleans, 166 U. S. 541; People v. Roper, 35 N. U. S. 143. Y. 629; People v. Board of Asses- •15 Armstrong v. Treasurer of sors of Brooklyn, 84 N. Y. 610. Athens Co., 16 Pet. 281, distinguish- so People v. Roper, 35 N. Y. 629. iiig New Jersey v. Wilson, 7 Cranch For other authorities see Century 164; Lord V. Litchfield, 36 Conn. 116, Digest Constitutional Law, §§ 206, overruling earlier cases. 303, 237, 304. •K-'Tomlinson v. Jessup, 15 Wall. i §§ 361-363, swpro. 4.54. 596 PUBLIC GRANT AND LICENSES. § 570 peculiar to corporate capacity, but merely relating to the business of the corporation. It is sufficient here to consider how the legislative power to regulate charges of public service companies is affected by charter or other special provisions granting power to make rates. § 570. Question vi^hether contract or not.— The United States Supreme Court recognises that a contract may be made be- tween state or municipality and a corpoi-ation, giving the latter an irrevocable right to charge certain rates. Thus where a statute provided that the rates of fare to be charged by a street railroad company should be established by agreement between the company and the municipal authorities, and should not be increased without the consent of such authorities, an ordinance reading "the rate of 'fare for any distance shall not exceed five cents in any one car, etc.," was held to be an ir- revocable contract, leaving no power with the city to reduce the fare without the consent of the company, and this not- Avithstanding the fact that the ordinance reserved to the city the right to make such further rules, orders or regulations as might from time to time be deemed necessary to protect the interest, safety, welfare or accommodation of the city and public.2 But in other cases the Supreme Court has shown a strong disposition to deny the existence of a contract. So a power to fix rates by bye-law has been held not to exchide leg- islative regulation of rates where it is also provided that the bye-laws must not be repugnant to the laws of the state,-^ and it has been said by a state court that in order to constitute a contract there must be an indication by unmistakably clear language of a deliberate purpose not to interfere in all times to come.'* § 571. Illinois Water Rate Cases.— To what lengths the courts will go in denying that the city has a power to make a contract, or that it has as a matter of fact made a contract, by which its power of rcguhition Avould he iiii|i;iii-t'(l, is well illustrated by a iiiiinhcc ol" recent decisions, wliirh, however, should be contrasttnl with the still later decision in the Detroit 2 Detroit V. Detroit Citizens' M. & St. J". K. Co. v. Miiuicsotii, Street Railway Co., 184 U. S. .S68. 134 U. S. 418. " R\i((^Ien V. Illinois, 108 U. S. •« Wincliestcr & Lexinpton Turn- ri'2Ct- also Rtonn v. Fnrmors' Tjoiui & pike Ron|ii, Missouri. Moiilniin, Pciiii- '"Stono V. WiHconsin, 1»4 U. S. LSI. Hylv!ini:i. 11 See .-iH lo lattor IMiihi.lcIpliiii i'' Soo, iilso, §§ G74-68L &c. U. Co. V. HowerH, 4 ilouHt. (Del.) r)()6. § 574 STREET FKA.NClliSEJS. 599 discussed by the courts ; this question has been briefly touched upon before,^"* and need not be considered in this connection. § 574. Question of municipal power.— The question has also arisen whetlier witliout specific delegation the grant of street rights is within the power of municipal authorities. This was denied in New York in the leading case of Davis v. Mayor^^ with reference to an exclusive grant for a term of years, and the power to dispose of street rights is now regu- larly granted to cities in express terms and under certain restrictions. The power of the legislature to make grants of this character or to delegate the authority to make them to municipalities, is not questioned, except that in some states the power to grant monopolies is denied/^ and except that a state has been denied the power to part with the whole of an important harbor to a private company.^" v$ 575. Question of surrender of police power.— The doc- trine that municipalities cannot make such grants under their common power to regulate the use of streets, is largely based upon the view that they involve a surrender of the delegated trust to exercise a continuing control over streets for the benefit of the public, since the possession of special rights limits the general public use. In so far, however, as such control consists in regulation merely, and is demanded by considerations of public health or safety, it is now well under- stood, that a grant does not involve such surrender, since it is impliedly subject to such reasonable safety regulations as may be imposed from time to time.^^ The grant may sur- render to some extent the previous liberty of common use of the public property, but it does so only for the purpose of substituting other and presumably more valuable public fa- cilities. § 576. License a contract or a right of property.— In order to meet the objection that there is a surrender, even to this extent, it has been contended that the act allowing the special 14 §§ 509-510, supra. is People ex rel. New York &c. 15 14 N. Y. 506, 1856. See Booth, Co. v. Squire, 107 N. Y. 593, S. C. Street Eailways, § 15. 145 U. S. 175 ; Elliott, Roads and 1" Norwich Gas Light Co. v. Nor- Streets, §§ 818-819. As to unrea- ■wic'h City Gas Company, 25 Conn, sonable requirement see N. W. Tel- 19; Thrift v. Elizabeth City, 122 N. oph. Exch. Co. v. :\[inneapolis, 81 C. 31, 44 L. E. A. 427. Minn. 140, 83 N. W. 527, 86 N. W. IT Illinois C. E. Co, v. Illinois, 146 69, 53 L. R. A. 175. U. S. 387. 600 PUBLIC GEANT AND LICENSES. §576 use of the public property is merely iu the nature of a lieeuse. Massachusetts, however, is the only state which treats track licenses on public streets as revocable. ^^ The Supreme Court of Illinois, while holding that a municipal grant of a track right is in the nature of a license, as distinguished from a fran- chise,2" also holds that the license, if granted for a valuable consideration or if acted upon by the licensee, becomes a con- tract, and hence irrevocable. ^i The license has been held ir- revocable in other states in which the question has arisen,-- and NcAv York regards a track right as inherently exclusive and necessaril}' extending at least over a term of years -^ The Supreme Court of the United States holds that a state cannot withdraw the assent which it has given upon a valuable con- sideration, to the construction of a railroad within its limits.^'* With regard to improvements constructed under express public license in rivers and streams held in public OA\aiership or subject to a public easement of navigation, Pennsylvania treats mill rights as revocable r^ ^lassachusetts has held cer- tain grants to be subject to an implied reservation in favor of the paramount public uses of the great ponds of that state, which were declared before the grant was made,-^' but has in other cases protected improvements made upon the faith of public grants.2" Where the Supreme Court of the United States has held structures in public waters to be subject to m Springfield v. Si)ringfielcl Street R. Co., 18li Mass. 41, 04 N. E. 577. See § 582, infra. ao Chicago City E. Co. v. People, 73 111. 541, 1874. The same view is taken in Massachusetts Attorney General v. Metropolitan E. E. Co., 11J5 Mass. 515. ^iQuincy v. Hull, 10(5 111. :{37 ; Chicago Municipal (las Light & Fuel Co. V. Town nf Lake, 130 III. 42, 22 N, E. (iKi; People v. Bloeki, L'03 III. 3()3, (i7 N. E. Sn9. 2'.'Si)riiigfi<'l M... 032; State V. Corrigan St. M. Co.. S5 Mo. 263; EleidH, S4 Mich. 257; Burlington V. Burlington Sln-et E. Co., 10 Iowa 144; Williamsport Passenger E. Co. V. Williamsport, 120 Pa. St. 1; New Orleans v. Gt. Sent hern Tel- ephone &c. Co., 40 La. Ann. 41. ■■i-'' Milhau V. Sharp, 27 N. Y. 611 ; Potter V. Collis, 156 N. Y. 16, 50 N. E. 413. ^« New York, L. E. & Western E. Co. V. Pennsylvania, 153 U. S. 628, 043. '-'■'' Siisi|U('lianiia Canal < 'o. v. Wriglil, 5) W. iV: S. !» ; UuiuWr v. Delaware & Earitan Canal Co., 14 How. SO. 2" Watuppa Eeservoir Co. v. Fall Eiv; 57^ SUGGESTIONS REGARDING RIGHTS CLAIMED UNDER AFFIRMATIVE PUBLIC SANCTION. §§ 578-582. § 578. Theory of vested rights.— The course of adjudica- tions on the legal status of rights, exemptions and privileges claimed under affirmative sanction of public autliority reveals a number of anomalies and difficulties. We tind the original theory of the contractual inviolability of corporate charter rights and of exem})tions from taxation so much modified, that the extent of protection has become extremely uncertain; de- cisions depend upon relinements of construction which leave us without any guidance as to future cases; and there are cases in which the public is allowed to ignore its own grants and assurances, contrary to the i)lainest dictates of justice. For much of this unsatisfactory state of the law the contract theory of public grants seems to ])e responsible. The state has been held to a contractual obligation, where it had plainly acted in a sovereign capacity, and it has been allowed to over- ride manifest e(|uities upon the pli-a that it had no f)OAver to bargain away its governmental authoi'ity. Had it been pos- sible from the beginning to substitute for the idea of a contract that of a vested right oi' interest. ;i uiueli more hariiiouious and equitable doctrine would li;i\-e been produced. Our courts have h;id little occasion to discuss Avhat are vested rights, owing to the abscnxi)ense had been reasonably incurred in reliance upon the original ordinance, but that in the case before the court there was no right to indemnity since the tracks were laid after the objections of the Mayor to the double track had been nmde known to the President of the Company.-'^*^ The Supreme Court of Indiana has refused to apply the doctrine of the Dartmouth College case, where a charter was amended four days after the original act, before any rights were acquired on the faith of it,-^" and the attitude of the United States Su- preme Court itself toAvard corporate charters is determined not nearly so much by the theory of contract or of reserved poAver as by the substantial character of the rights and equities involved. 2^ It should also be noted that while the Supreme Court correctly denies that the official relation constitutes a contract,''^'' it protects the salary of the officer after he has earned it upon the theory of a contract implied in law, which in this case can only mean, that by performing the duties of the office the right to the salary becomes vested.^'^ Upon the theory of contract the holder of a franchise might properly claim that the terms of the original grant should remain for- ever unimpaired ; upon the theory of vested rights he is in the same position as any other holder of property, i. e., subject to the full exercise of the police power. Rep. 7'23; also Phaleu v. Virgiuia, 8 line, not having been acted upon, How. 163. construed as revocable license. 35 See Chicago Municipal Gas "~ Cincinnati, H. & I. R. Co. v. Light &c. Co. V. Town of Lake, 130 Clifford, 113 Ind. 460, 15 N. E. 524. 111. 42, 22 N. E. 618. •'•» See the recent cases of Stearns "<■• Lake Roland Elec. R. Co. V. Bal- %. Minnesota, 179 U. S. 223, and timore, 77 Md. 352, 20 L. R. A. 126. Looker v. Maynard, 179 U. S. 46. See also Classen v. Ches. Guauo Co., -io Butler v. Pennsylvania, 10 How. 81 Md. 25S, municipal ordinance 402. allowing t(i build beyond bulkhead -lo Fisk v. Jefferson Police Jury, 11(5 U. S. 131. 604 PUBLIC GKAAT AND LICENSES. § 530 ^ 580. Licenses limited in time not a surrender of the police power.— How should liquor licenses, lottery franchises, and permits for offensive establishments fare under the theory of vested rights ? The prevailing doctrine is that the state cannot bargain away its police power, but this doctrine is applied in an extreme and unjust manner. Let it be conceded that a legislature cannot bind its suc- cessors to tolerate any direct menace to life or property or to public morals, anything, in short, which is a nuisance per se. There are other conditions which affect safety, order and morals in a more remote manner, conditions w'hich it may be desirable to remove, but to which the community may adjust itself without immediate danger. The maintenance of a lot- tery or the sale of intoxicating liquor may thus be tolerated in a community under proper regulations, without greater evil than would result from the evasion of an unenforceable or unenforced prohibition. A legislative policy which takes this fact into consideration is legitimate and defensible. There are industries which cannot be conducted without some danger to safety, health or comfort, and which are yet useful and even necessary. Legislative policy may favor such industries under regulations minimising their evils, if a balancing of advantages and disadvantages shows a clear gain to the com- munity. If then individuals or corporations embark upon such undertakings and invest their capital under legislative sanc- tion, are their interests to be absolutely at the mercy of the government, without any constitutional protection? Such s('(Miis to be tbe prevailing doctrine of our courts which hold that the legislature cannot make a contract binding upon the state which secures the right to continue in a business, con- ceded to be attended with public inconvenience, although not a nuisance per se. lii ])i'oiiiulga1ing this doctrine without qual- ification, a very ol)vious distind ion is lost sight of: namely, 1h;i1 between ii reasonable exei-eise and a surrender of the |K>lic<' power-. I's-'fiil ;iii(l \;ilii;iliic piifposcs iiuiy be subserved by tcMipornry licenses, hence liny ;ire reasonable acts of gov- criniieiil to the protection of Avliidi the state may bind itself, but perprtiinl privileg(>s iiiid licenses nre never neeessiiry Jind therefore necessarily unreasonable. While, therefoi-e. n business cnrried oti nndi'i- lompornry lirense iiuiv l)e subject to |)olice i-egulatioiis. it should he con- I 5S1 PERPETUAL AND REVOCABLE LICENSES. (iQ5 stitutionally secure from suppression and confiscation. cxce])t upon payment of compensation. § 581. Perpetual licenses unreasonable.— In reason, the same principles should apply to all other licenses, franchises, and exemptions. The United States Supreme Court has recognised the grant of a perpetual exemption from taxation as a bind- ing contract, but the tendency of constitutional development has been to stamp such an exemption as unreasonable. On the other hand the exemption of a person which must end with his life, in consideration of public services Avhich he has ren- dered upon the faith of the promise, ought to be protected against withdrawal. Licenses and grants of street rights have now invariably a time limit, frequently under constitutional mandate, the unreasonableness of perpetual privileges thus being recognised by the fundamental law. The maximum duration of such grants is commonly fixed by positive provision ; but the reasonableness of the period may be generally tested by the expenditure made by the li- censee. It is obvious that the amount of the license fee which may be nominal, can furnish no proper standard. So it has been held that a municipal corporation cannot revoke a license before the licensee has been reimbursed for his outlay,^^ but that after a long period of enjoyment such reimbursement will be presumed.'*^ In a majority of cases thirty years is an ample period for the amortisation of the capital invested. § 582. Licenses in terms made revocable.— Where a license is made revocable in its terms, it must be conceded that there can be no constitutional claim to protection,^^ \y^^j^ ^}^q justice and policy of revocable licenses is doubtful, for they will be invariably accepted in reliance upon the non-exercise of the right to revoke, and the revocation is therefore as much a hardship as if the right had not been reserved.^^ It is inter- esting to note that the German Trade Code has abandoned the system of revocable licenses, and in the case of the liquor busi- 41 Town of Spencer v. Andrew, 82 ■*■'• Scliwiiehow v. Chicago, 68 111. Iowa 14, 12 L. E. A. 115. 444. *- City Council Augusta v. Burum, ** Coverdale v. Edwards, 155 Ind. 93 Ga. 68, 26 L. R. A. 340. 374, 5S X. E. 495. ,606 PUBLIC GEANT AND LICENSES. § 582 ness even forbids time limitations, every license being granted for the life of the holder.-*^ In ^Massachusetts the principle of revocability is extended to the location of street railroad tracks. The report of the Spe- cial Committee appointed under the act of 1897 to investigate the relations between cities and towns and street railway com- panies speaks of the legal position of the latter as ''peculiar, almost anomalous,'' and as "in theory to the last degree il- logical." ^Hiile the Committee found that the system worked on the Avhole satisfactorily, so that neither the municipalities nor the companies desired a radical change, the former wish- ing to retain the right of revocation at will as a weaixm— "a sort of discussion bludgeon"— the latter preferring to a fixed term a franchise practically permanent, and what the report calls a tenure during good behavior, yet the Committee recom- mended that the action of the municipal authorities should be subject to revision, and the law'now provides for revocation of locations, upon notice and hearing, if the public necessity and convenience in the use of the streets so require, for good and sufficient reasons to be stated in the order therefor, such oixler, unless the company consents, not to be valid until approved by the board of railroad commissioners after public notice and hearing.-*'^ The right of appeal to a higher administrative au- thority gives practically the same security against arbitrary simliation as would result from judicial protection. The chief ilitference between such tenure and a contractual right seems to be that the latter can be forfeited only by breach of duty and misconduct, while the former may have to be surrenderetl without compensation, if public interest requires it, even where the company is not at fault. But the requirement of notice and hearing and the right of appeal afford adequate ]>mtectiou against the assertion of unjust ;in when twenty-five,-'"' This plnii of gradnal cniimeipation became pai't of the Constitnlinii ol' Wi'st Vii-ginia ; it will lir noticed 1li;i1 as to living slaves inidi r twenty-one it took away vested rights; but it did not provide I'oi' eoiiipi'iisiit ion. In lS(i4 ;i luniiliei- ot Sonlliei-n States, acting under Ndflliei'n dictation, abolished slavery, iiniuediately and without eoiiipensat ion. Tli(> same coiirse was taken voliiiit;i rily l)\' Miiryland. XovenilxT 1, lS(i4. 1 Tlif Constitution of Kentucky of •-: T1ioi|m', Constitiitioiiii] Tlislory IT'.tl, Art. 7, provi.lcij tlwit hIiivcr of tlic^ UnitcMl SI.-Ucs 1 1 f, ;V.»— (IS. blioiild not be em.-UK-ipiitccI i>y law •« Iti Rtiil. at Ti. I^TO. without the consent of tlic owners, ■» 12 Stat, al I>. 432. or without paying fnli conipensation. o 12 Stat.. -it L. ()33. 5; 586 TRADE PRIVILEGES. 609 and Missouri, January 11, 1865. When tlio Thirteenlh Anicnd- ment to the federal constitution, abolishing slavery, was pro- ])()sed, the discussion turned upon the question whether tlie national government had power to abolish for the states, not whether any government might abolish wnthout compensation. Compensation Avas not considered and the amendment became juirt of the constitution without it. § 586. Constitutional aspect of abolition.— Abolition in the United States came as the result of a war, of which slavery had been the cause, and which had cost more money than the shives had been -worth; it came moreover when the institution had been practically destroyed and could not possibly have been maintained any longer. It is therefore impossible to draw ijeneral constitutional inferences from the denial of compen- sation; on the other hand, there is nothing to show that at any time before the war or even during the first years of the war, outright abolition without compensation was regarded as a constitutional power of government. The precedents of England, France and Russia had been in favor of compensa- tion. The preponderance of opinion in favor of compensation is all the more remarkable as the property abolished was of a kind utterly repugnant to moral sentiment. TRADE PRIVILEGES AND FEUDAL RIGHTS. §§ .587-588. § 587. Class and trade privileges and exemptions.— The con- stitutional status of established privileges and exemptions in America has already been considered. They have never been of overruling importance in the United States so as to domi- nate the economic system of the country. It is well recog- nised that they are contrary to public policy, and their aboli- tion for compensation is therefore clearly justified.^ In the states of the European Continent the demand for free- dom of trade and industry, and for equality in the distribution of public burdens, led to an extensive abrogation of privileges and exemptions of various kinds, and the right to compensa- tion seems to have been determined largely by equitable con- siderations. The abolition of gild monopolies was not regarded as sub- I-. West River Bridge Co.- v. Dix, County of St. Clair, 7 111. 197; Ceu- fi How. n07; Commissioners of tlio tral Bridge Corp. v. Lowell, 70 Sinking Fund v. Green &c. River INIass. (4 Gray) 474. Navigation Co., 79 Ky. 73; Mills v. 39 610 SOCIAL AND ECONOMIC IIEFOEMS. § 588 ject to an obligation to make compensation, as their privileges were of a semi-political character, and were claimed to be held for the public benefit and not for private emolument. A German imperial law of 1654 gave to municipal governments the power to alter any gild charter J In England the tendency was since the Fifteenth Century to supersede the restrictive bye-laws of comi)anies and corporations by parliamentary en- actment, which, while they did not establish freedom of trade, at least placed trade restrictions under public sanction and control,'*^ so that the final abolition of restrictions'* did not appear as a measure directed against private right; it saved, indeed, the customs of gilds which by that time had become practically impotent.^" In France gild monopolies were abol- ished in 1776, but it is said that the gild of barbers was ex- cepted, because they had bought their privilege and the state could not pay them^^— a clear recognition of the principle of vested rights. The French law abolishing the UKUiopoly of brokers (excepting exchange brokers) provided for indemni- fying those established in the l)usiness.i - Pryssia al)i'ogated trade monopolies (Bannrechte), partly Avithout compensation "because experience has shown Ih.it the abrogation does not diminish profits, "'•• while as lo others compensation was made to depend npon pi-oof of loss." A Prussian law of 1861 abolished exemptions from the land tax, granting compensation of twenty times the amount of the annual tax where the exemption had been originally granted for a con- sideration ())• otherwise rested upon special acts of a private nature, and of Ihirteen and a half times the amount, in the ab- sense of sneli litlr. The I'l-ussian income tax law of 1891 was made to apply lo members of tlw roi'mecly sovereign liouses as soon as provision should have been m.nle \'n\- ihcir indemni- fication. 5; 588. Seignorial rights. — Seignorial rights of a feudal char- acter are uidr)A, Ail. iDC; ' i lu.s.licr, I 1 1, S73. ■RoHchfT Niilionalockmi.iinii' III, \>. i^ Law .Inly IS, ISOO. ^02. ei Rii('li(>nl)Pr^cr Ajjrarwcscn, § '-'7. " KHiH-cialiy r, Kli/,. <•. 4. " ifnsclKT, III, p. HIT). "54 Opo. Ill, v. 96. '•' I, § IL >« Ciinniiif^liam, fSniwIli of Rn)jliHh rdinmrTcc, § L'76. § 589 SEIGNORIAL RIGHTS. 611 incidents, savin<;- rents and services certain, tlieretui'ure law- fully created or reserved. Similar provisions are found in Wisconsin, IMinnesota and Arkansas. The provision was taken over from the Revised Statutes of 1828 and is also to he found in the Revised Laws of 1813. The saving clause shows that the abolition was intended to be retroactive ; but as mili- tary tenures never existed in New York any more than in the other colonies or states, it is not easy to see what vested rights could have been destroyed, the main incident to socage tenure, the rent service, being expressly saved by the statute. The abo- lition of military tenures in England'*^ was accompanied by the creation of an excise tax to compensate the King for his loss; but no provision was made for compensating the mesne lords w^hose tenures and incidental profits were likewise taken away. The earlier plan for abolishing military tenures, moved in Parliament in the reign of James I, contained a provision "for a convenient rent to be assured to the lords of every knight's fee;" and upon the abrogation of patrimonial and heritable jurisdictions in Scotland in 1747 an indemnity of £164000 was awarded to the lords. The seignorial rights in France (1789), Austria (1848), and Prussia (1850) were abro- gated without provision for indemnity.^' The denial of com- pensation in these cases rested upon the theory that rights to compulsory personal services, hunting privileges, mortuaries, etc., were mere incidents to a personal servitude, and that their exaction could not grow into vested rights/"** PERPETUITIES AND MORTMAIN. §§ 589-596. ,§589. Perpetual rents.— Perpetual ground rents are either incidents to a socage tenure (rents service), or rest upon grant without the relation of lord and tenant."'' They have for a long time ceased to be created in this country, but rents dating from earlier periods still exist in Eastern states, notably in New York and Pennsylvania. In 1869 a statute was enacted in Pennsylvania enabling the owner of property burdened with an irredeemable rent to institute proceedings against the 16 12 Car. II, c. 24, 1660. is Lassalle, System der erworbenen 17 Roseher Nationaloekouomie II, Reclite I, 191, § 9. § 124; Meyer Verwatungsrecht, p. n' Rents charge, or rents seek; 299. The German laws on the sub- Blackst. II, 41. ject are collected in Kraut, Privat- recht, 1886, p. 118-122. 612 SOCIAL AND ECONOMIC EEFORMS. § 59O owner of the rent for its redemption at a sum to be assessed by a jury, the damages not to be estimated at less than twenty years' purchase thereof.-'^ This statute was declared uncon- stitutional upon the ground that the removal of restrictions on alienation did not constitute a public use for which the power of eminent domain can be exercised.- ^ This decision can- not be accepted as sound. In the words of one of the justices of the court: "It cannot be that contracts of a past genera- tion are beyond the reach of laAV for a proper purpose, a pur- pose not to destroy, but to change, to suit the interests of the state. Otherwise a contract would stand on 'a higher plat- form than that of the people to change their form of govern- ment. ' ' It appears from the opinion that the court would have admitted the validity of an act forbidding the future creation of perpetual ground rents. There can indeed be no doubt that the prevention of perpetual burdens is a legitimate object of public policy .22 And it may be confidently asserted, that what- ever policy may be legitimately pursued by prospective stat- utes, may also be enforced against vested rights of indefinite duration by the exercise of the power of eminent vlomnin. Otherwise the heritage of past generations Avoukl shackle for- ever the future of the economic and social system of the coun- try. Upon the principle laid down by the Pennsylvania court, no constitutional legislation could have abolished the feudal system of Europe. § 590. Perpetual covenants, — There seems to have been no legislation in this country dealing retroactively with perpetual restrictions upon the use of land. It is, however, well estab- lished that the courts will construe such restrictions as cove- nants rather than as conditions if it is possible to do so,^'' and the specific enj'orcement of a covenant may be refused, when the condition of the property has materially changed.-' "It must not be supposed that incidents of a novel kind can be de- vised and attached to property at the fancy or caprice of any owner. It is inconvenient to the public weal that such a lati- 2'>L;iwH ISGO, p. 47. I'nst v. Weil, 115 N. Y. 361, 5 L. R. •Ji Puliiirot's Appeal, f,? I'ii. St. A. 422; Stanley v. Colt, 5 Wall. 119. 479. Sec WilHon v. iRcminRcr, IH.'i -» Trust ecs of Columbia, College v. U, S. .15, TiiMclKT, 87 N. Y. 311; Diikc of 22 Sec § 370, supra. Hcdfnrd v. Trustees of tlio T.ritisli 23 WoodrufT V. Woodruff, 44 N. J. Museum, 2 Myl. & K. 552; Addi- Eq. 349, 10 Afl. 4, 1 L. 1?. A. 380; j-on on Contracts, 9th edn. p. 284. § 591 KN TAILS. 618 tude should be givi-ii. TluTi' can be ikj liai'iu in allowinj,^ tlic fullest latitude to men in binding? themselves and their per- sonal representatLves to answer in damages for breach of their obligations; but great detriment would arise, and much confusion of rights, if parties were allowed to invent new modes of holding and enjoying property, and ini[)ress upon their lands and tenements a peculiar character which should follow them into all hands hoAvever remote."-"' A law of ^Fassaehusetts provides that conditions or restrictions, un- limited as to time, by which the title or use of real property is affected, shall be limited to the term of thirty years from the date of their creation except in cases of gifts for public charitable or religious ])urposes. But the law does not apply to conditions or restrictions existing at the time of its enact- ment.26 § 591. Entails. — The rule against perpetuities is received in America as part of the common law,^^ and in Louisiana the rule of the French Civil Code accomplishes the like purpose.^^ The estate tail of the English law does not constitute a per- petuity, since the tenant in tail was at least since the fifteenth century enabled to convey a fee simple by fine and recovery. In many, perhaps nearly all, of the United States estates tail have been abolished by statute, so in Virginia in 1776, in New York in 1786. The statute of New York undertook to con- vert existing estates tail into estates in fee simple. While this destroyed the estates in remainder and reversion, it can- not be regarded as an interference with vested rights, since even before the statute these future intere.sts had been liable to be cut off by the tenant in tail. A special statute for the barring of an entail has therefore been held constitutional in Ohio.^*^ In Illinois estates tail are converted into life estates in the first tenant with remainder in fee simple in the persons to whom at common laAv it would pass upon his death.-"^'^ This statute, however, applies only to estates tail to be created in the future; and it seems that a retroactive provision of this nature Avould be unconstitutional, since the common law right 25 Lord Brougham in Keppel v. ties, § 200; Chilcott v. Hart. 23 Col. Bailey, 2 Myl. & K. 517. 40, 35 L. E. A. 41. 2c Laws 1887, ch. 418 ; Kev. Laws, 28 Louisiana Code, § 768. ch. 134, § 20. 20 Carroll v. Olmsted, 16 Oh. 251. 2T Gray, Kule Against Perpetui- ^'^ Eev. Stat. Conveyances, § 6. 614 SOCIAL AND ECONOMIC EEFORMS. § 592 of the tenant in tail t(i suffer a recovery or the method of as- surance substituted therefor in America must be regarded as constituting a vested property right. ^' § 592. Acts of secularisation.— The holding of property to charitable uses, and the holdings of corporations under licenses in mortmain or other statutory authority corresponding to such license, constitute exceptions to the rule against per- petuities. During the Middle Ages, and down to the last century the large possessions of the Catholic Church illustrated in a con- spicuous manner and on an enormous scale the evils of landed property withdrawn from commerce and alienation. These evils led in France (1789), Germany (1801), and Italy (1870) to a process of so-called secularisation by Avhicli the state con- fiscated large amounts of ecclesiastical property.^^ These acts of secularisation were generally admitted to be violations of the principle of the sanctity of vested rights, but were justified or excused on the ground of political necessity. § 593. Suppression of monasteries in England.— The sup- pression of the monasteries in England at tlie time of the Reformation Avas accomplished only in part by direct con- fiscation. In the canon law suppression is a technical term for the taking of benefices for cause and by a judicial proceeding. Henry VIII began his attack upon the possessions of the church by procuring in 1-528 from the Pope a license to sup- press certain monasteries. A general visitation folloAved in 1535 for the purpose and with the result of discovering abuses sufficient to serve as a warrant for suppression. In the case of the most important monasteries, hoAvever, surrenders vol- untary in rornr'-' were obtained or extorted from Friars and Superiors who siil)ini11e(l themselves to llie King's clemency. The first act of confiscalion was that of ir)3().-" It ai)!)lie(l to all monasteries of less lli;in l!l.'()() ;innu;il income, which on account of ;i1)iises in llii'ii' c(»iiilnct were granted to the Kinji' 31 fiilpin V. WilliiUTiH, LM Oli. St. locii rci jiilicmus •"•z Tlic procoHS 1)1" HCH'iiljirisatioii socJMri. WHS alfio Jipplied by the CliriHtiaii •'■'' I'^or renin ut' hvicIi Hiirroiidcr hoo EmpororH to property dcvotoil to tlic Ifymcr 'h I'ocilcrii, XIV, 748. pagan <-iilt ; Codex 1, 11, .5: omnia •'» 'J? H. VIIJ, c. 28. § 594 SUPPRESSION OF MONASTERIES. 615 and his heirs and assigns "to do and use herewith his and their own wills to the pleasure of Almighty God and to the honour and profit of this realm." Yearly pensions were to be allowed to the chief heads and governors of these houses, and the monks were to be committed to honorable great monas- teries. The statute of 31 Henry VIII chapter 13 entitled "an act for dissolution of monasteries and abbies" is generally be- lieved to have accomplished the suppression of religious houses; but the act merely confirms former suppressions and surrenders and vests in the King all other monasteries, etc., "which hereafter shall happen to be dissolved, suppressed, re- nounced, relinquished, forfeited, given up, or by any other means shall come to the King's hands." The acts of 37 H. VIII cap. 4 and 1 Edw. VI cap. 14 vested in the possession of the King without office found all chantries, colleges, free chap- els and hospitals with certain exceptions (the cathedral churches, the colleges of Oxford, Cambridge, Eton, etc). The act recited the abuses connected with these institutions, and that their conversion to good and godly uses had best be com- mitted to the King. It made provision for annuities to be granted to all persons supported out of these establishments, and directed the continuation of all grammar schools main- tained thereby; the income from a portion of the lands con- fiscated was to be applied toward the maintenance of piers, walls and banks against the ravages of the sea. All these acts are careful to save the rights of strangers, but fail to recog- nise a right of reversion in the original donors or their heirs.^-'' § 594. Virg-inia leg-islation.— There are a few cases in the history of American legislation Avhich throw some light on the constitutional aspects of the secularisation of ecclesiastical property. In Virginia the Episcopal Church had become established during the colonial period, and under legislative sanction projv erty had become vested in the various parishes. At the time of the Revolution, the rights of the church to all its property were confirmed and several statutes were passed from 1784 to 1788 for the vesting of such property in appropriate church authorities. In 1798 however all these confirmatory acts were repealed as inconsistent wnth the constitution and the princi- 35 Burnet, History of Reformation T, 260. 616 SOCIAL AND ECONOMIC REFORMS. ^ 595 pies of religious freedom, and in 1801 the legislature passed an act claiming the right of the state to all the property of the Episcopal Churches, and directed the overseers of the poor to sell all vacant glebe lands and appropriate the pro- ceeds to the use of the poor in the parish. The United States Supreme Court, in a case coming from that portion of the District of Columbia formerly belonging to Virginia, held the acts of 1798 and 1801 inoperative to divest the church of the j)roperty acquired previous to the revolution. ^^ In the state of Virginia itself, this legislation, though with considerable doubt and division of judicial opinion, was sustained and finally acquiesced in.^^ § 595. Pawlet v. Clark.— A different disposition was made" of a case coming from Vermont. A Royal Charter of 1761 had granted lands in the township of Pawlet in the then Prov- ince of New Hampshire in a number of shares, among them "one share for a glebe for the Church of England as by law established." After the Revolution the township fell to Ver- mont. Vermont in 1794 granted to the towns of the state the entire property of the glebes therein situate for the use and support of religious worship; and by another statute of 1805 changed the grant for the use of the seliools of the towns. This act was upheld upon the ground that from the time of the charter to the act of 1794 there existed no episcopal church in the town of Pawlet, and that before the erection of such church, the state of Vermont, as the successor to the rights of the Crown, with the assent of the town, had power to ap- propriate the land to other uses. The original grant in other words was held imperfect for want of a grantee capable of taking. 3** A grant by a charter of the same year to a duly in- corporated society was lield to be irrevocable.-'"' 5! 596. The Mormon Church case. — Tii the case of th(> Mor- mon ("luircji llic Supreme Court had to deal with an net of f('(h'ral h'gishition. The Churcli of Jesus C'hrist of tiu' Latter Day Saints had Ix'cn organised in IS;")! by an act or ordinance of the so-called state of Drseret which was confirmed by the •■'"Torrett v. T.iylnr, '.1 ('r.incli f:?, :<« f.iwlcf v. Clnrk, Cr. 292, ISlf). IS If). ^■7 'ruipiii V. Lu.kct, li <';ill IK!, •''" Socioty for tlir l'r()[i. of the 1804; Sfldoii v. OvorHMTH of Poor, (!os|)cl v. New Haven, 8 Wb. 464. 11 Lc-iKli 132, 1840. § 59G MORMON CHURCH CASE. 617 territorial legislature of Utah in 1855. The act of Congress organising the territory had provided that all its laws should be submitted to Congress and upon disapproval by it should be null and void."**^ It was not, however, until 18G2 that Congress acted. By act of July 1, 1862, it disapproved and annulled the incorporating ordinance of the state of Deseret of 1851, and the confirmatory territorial act of 1855, and all other acts estab- lishing, maintaining or countenancing polygamy; and it pro- vided that no corporation or association for religious or char- itable purposes should hold real estate of greater value than $50,000, and that all real estate held in contravention of this provision should be forfeited and escheat to the United States.^' After an interval of twenty-five years Congress in 1887 undertook to carry into effect the previous act of 1862. By statute of March 3d of that year it dissolved the corpora- tion of the church of Jesus Christ of Latter Day Saints, and directed proceedings to be taken for winding up its affairs and for forfeiting and escheating its property held in violation of the act of 1862 (excepting property held exclusively for purposes of worship or burial) ; such property to be disposed of for the benefit of the common schools of the territory.^^ Suit was brought accordingly by the United States, and it was found that all property had been acquired since 1862, and that only one piece was used for religious purposes ; a receiver was accordingly appointed. Upon appeal to the Supreme Court, the decree of the lower court was sustained.^^ It was held that under the act of 1862 the corporation could be legally dissolved, and that its real propertly was liable to pass to the United States, whether upon the theory of forfeiture for viola- tion of law, or upon that of reverter as a consequence of cor- porate dissolution, the United States, through the Town Site Act, having been the donor of the corporate lands ; and that the personal property ceased to be the subject of private own- ership and became subject to the disposal of the sovereign ; that in accordance with general principles of jurisprudence the proper and lawful disposition of all this property was to devote it to other public beneficial uses, and that the appropri- 40 Act Sept. 9, 1850, § 6? n Stat. •»:! Mormon Church (the late Cor- ,it L. p. 453. poration &c.) v. United States, 136 4112 Stat, at L. 501. U. S. 1. 4-' T Suppl. Rev. Stat. p. 568. 618 SOCIAL AND ECONOMIC REFORMS. § 597 atiou of such property as had been forfeited and escheated to the United States, to common sciiool purposes, Avas within the power of Congress. This suit did not determine which of the property became forfeited or escheated ; nor did the Su- preme Court decide what Avas the proper mode of disposition of the non-forfeited property. These questions seem to have received no further judicial determination, for by resolution of October 25, 1893, Congress restored to the Church all per- sonal property on condition that polygamy should be no longer sanctioned, and by act of March 26, 1896, the real property was restored."** LEGISLATIVE POWER OVER ELEEMOSYNARY TRUSTS. §§ 597-601. § 597. Eleemosynary trusts under the Dartmouth College doctrine. — The extent of the legislative power over corporate or trust property held for eleemosyn;iry ])urposes can hardly be regarded as definitely settled. In the case of The Trustees of Dartmouth College v. Wood- ward,^'^ in which the whole question Avas most fully discussed, the eleemosynary trust Avas vested in a corporation created by royal chartei-. The act of the legislature, the validity of AA'hich Avas attacked, primarily attenii)ted the alteration of the constitution of the corporation, by changing its name, ils gov- erning body, and some principles and details of managenu^nt; but its purpose Avas not to destroy the trust itself, or to ap- j)ropriate the property to uses alien to iho intentions of tlie founder. The Supreme Court held that the particular consti- •" In the case of tlio supjirossioii jjivers should be assigned to oilier of the order of the Kniglits Templar men of holy religion to the iiit(>iit in the beginning of the 1 fth century, that their jirofits might he ch'Xdtcd it waH aflirincd liy Ihf juilgcs of and charit.ahly disposed Id dliicr England that the King and the lords godly uses. Tlic l.inds were there- of the fees might well and lawfully fore by statute vested in the onler retain the lands of the order as their of tlie Hrelhren of the Hos) ital of escheats, in consequence of the dis- St. .Tohu. (Slatutiim de lerris teni- solution of the order, but lieeiinse plaricuiitn, 17 Ivl. II, St. .'>, 1:{J4.) said lands had been given for the Here as in the Mormon ('hundi case dcfenc(! of (Christians, it seenie only (lecisimi (if llic Supreme Court of the United States which 1hrf)ws ligiit upon that (lucstion is the one rendered in the ^lormon Church case." Here the act incorporating an elee- mosynary corporation Avas disapproved and annulled by Con- gress in the exercise of a general power reserved in the act estalilisliing the territorial governuKMit of T^tah, and the corpo- r;i1i■ death: and if certain forms of individual TnistooH of Unickcn ,\c;iiloniy. O-T New .Jersey citnl l.y .TuHticn Bnulley Ky. 4.'in, iind ('ary Library v. liliss, in iriO U. S. ]>. (id. IT)! MaHH. .^^).'"); l))it hcc flic :ic(h of "Sec review of eases in .TaeltHon V. I'liillips, 14 Alien 539, p. 580-596. § 601 POWER OVEK ELEEMOSVNAKY TRUSTS. 623 property become detrimental to the community, they can be taken from individuals on payment of compensation. But purposes and interests, thoufili incorporated and en- dowed with legal personality, have no claim to constitutional equality, they do not die, and the exercise of the power of eminent domain would be of no avail, since compensation Avould not change the purpose. As long as a purpose is re- garded as lawful it should be secured from spoliation, l)ul there ought to be constitutional power to prevent the perpetu- ation of interests which are found to be detrimental or use- less to the public. The police power should therefore be held to extend to the abrogation of eleemosynary trusts and foun- dations under proper safeguards against the abuse of this power. The safeguard most in accordance with our consti- tutional principles would be the formulation of the conditions justifying state interference by general law, and judicial pro- ceedings establishing the existence of one of these conditions in each particular case. § 601. English legislation.— Even in England where the leg- islature pays the most scrupulous regard to the sanctity of vested rights, some concession has been made to the legitimate demand that the state ought to be able to control endowments, which have outlived their usefulness. It is provided by the Endowed Schools Act 1869^2 that the Endowed School Com- missioners (since 1874 the Charity Commissioners) shall have power in such manner as may render any educational en- dowment most conducive to the advancement of education, to alter and add to any existing, and to make any new trusts, di- rections and provisions, including the consolidation and di- vision of endowments.^ '■^ But in the case of endowments created less than fifty years before the passage of the act, the govern- 12 32 and 33 Vict. ch. 56. use that which a member or a 13 § 9 of Act. stranger has given for a specific ob- ATo^^.-Power over eleemosynary J<^ct. ^"^ ^ different purpose. trusts by Prussian law. § 74. In how far under altered The following provisions of the circumstances the state, after the Prussian Landrecht (Part II, Title death of the donor, may vary the YJ) illustrnte the iiriin-iples of the purpose of the trust, is to be judged German law regarding the power of by the principles of § 193. the state over eleemosynary trusts. § 7,5. In all eases in which such § 73. The corporation may not disposition is intended, the corpo- 624 SOCIAL AND ECONOMIC REFORMS. §602 ing body must assent to the new scheme. The scheme of legisla- tion submitted to Parliament had specified the principal condi- tions imder which interference would be called for and be justi- fiable : where the original purpose has failed ; where the founda- tion creates pauperism and immorality ; Avhere foundations, being insufficient in value, may usefully be united with oth- ers; where in foundations which are sixty years old there are no beneficial rjesults or the benefits are insignificant com- pared to the value of the foundation. In America the theory of contractual protection might be found to be an obstacle to the recognition of the two condi- tions last mentioned as justifying an interference with estab- lished trusts, except under a reserved power of alteration, where the trust is incorporated. ration must first be heard, and its opinion must not be departed from without a preponderance of reasons. § 76. The corporation may not of its own authority depart from the means prescribed for the realisation of the objects of the trust. § 77. The state itself may alter these means and arrangements only where it clearly appears that through them the object cannot be accomplished or will fail. § 78. If provisions are made in favor of certain definite persons, they cannot be departed from with- out the consent or full compensation of such persons. § 189. If the object of a corpo- ration prescribed in its charter can no longer be accomplished, f)r fails entirely, the state may dissolve it. § 190. The same is true, if this object, on account of nltcrcd cir- cumHtanccs, l)oconics manifestly dof- rimciital to tlie pul>iic welfare. § 191. If the accomplishment of the object is merely hindered liy .•ibnses or defects of the constitii- lion, the state is merely entiflcfl to jirovide the necessary measures for the removal of the defects or the restoration of good order. § 192. If a corporation is alto- gether dissolved, and no other pro- vision regarding its property is made by the charter for this con- tingency, the property escheats to the state, to be otherwise applied to the public good. § 193. If, however, there arc money or other things, that have been entrusted to the administration of the dissolved corporation for a certain definite object, the state must take care that the purpose of the donor, according to the condi- tions prescribed by him, be further carried out as far as possible. § 194. If the state cannot or will not do this, tlic donor or his heirs may recover the trust i)roperty or funds. § 19.1. Ff tlic donor is no longer in existence, ami liis licirs cannot he ascertained, the property of the former trust belongs to the state as ownerless projicrty, in accordance with the principles of § 192. i^ 602 SUMMAJiV. G25 § 602. Summary of principles regarding property under the police power.— The principles regarding:' llir i-dMlion of the constitutional protection of property lo llic jtolici' powci- may be briefly summarised as follows: 1. The purposes for which th(> police power may be exer- cised do not justify the taking of lawful i)roj)er1y without compensation. 2. Confiscatory regulation is equivalent to taking, but rea- sonable regulation leaving the owner in substantial enjoyment of his property, though diminishing its returns, is legitimate without compensation. 3. Things imminently dangerous or offensive, and serving no useful purpose, have no status as property and therefore enjoy no constitutional protection (nuisances per se). 4. The continuance in an established business may be for- bidden without compensation, if the interests of health, safety or morals make its suppression desirable, although it is not a nuisance per se; the disposition of an article may be forbidden under like conditions. 5. A public license or grant authorising the doing of a thing prejudicial to health, safety or morals, is subject to revo- cation without compensation. 6. A contractual obligation cannot be impaired for the benefit of the party obligated ; but otherwise a proper exer- cise of the police power is not rendered unlawful by the fact that it makes impossible the performance of contracts entered into by a person affected thereby. 7. A lawful trust cannot be impaired unless it is organised under a corporate charter which is subject to a reserved power of alteration or repeal. The following is submitted as preferable to the principles formulated in rules 4 and 5, and in rule 7 : An established business, lawful when established, or estab- lished under a license of reasonable duration, constitutes a vested right of property, and its continuance cannot be for- bidden under a changed legislative policy without compensa- tion. Where property is held upon eleemosynary trusts, and. in accordance with principles established by general law, it« con- tinued application to the original uses is found to be detri- mental or useless to the public, its application to different eleemosynary uses may be required. 40 FUNDAAIENTAL RIGHTS. THIRD : EQUALITY. CHAPTER XXVIII. EQUALITY AS A POLITICAL PRINCIPLE. § 603. Social and natural inequality.— A number of state constitutions, following the words of the Declaration of Inde- pendence, contain the statement that all men are created equal. The idea of a natural equality of men has been a powerful factor in bringing about legal equality ; but the recognition of the hitter does not imply assent to the former. The recogni- tion of a natural inequality has become a problem of great po- litical importance only since essentially different races have come to live together under governments recognising in theory the principle of equal rights. The Ikiropean states have always had to deal within their several jurisdictions wnth populations which from a racial point of view have been essentially upon the same level. The inequality of classes which formerly con- trolled their political systems w^as social and not natural. The institutions of property, iiilu'ritance and the family make it possible to add inequality of classes to the natural in- equality of individuals, and to deprive the latter of its due effect, so that wealth and other advantages come to be dis- tributed upon the basis of birth and social connection rather than of individual merit. It is easily understood how^ under a system of social ineciuality the idea of a natural equality nuiy arise as a protest against the injustice of the former, and become attractive to many minds. Social distinctions are inseparable from the institutions of family and property, and exist in all ilemoeratic states; if in such states they are less pronounced than in others, it is be- cause of e(|ii;il ('(lucatioiuil facilities, manifold opi)or1uuities to ac(|uire we;iltli. absence of caste and class prejudice, and the fjenial of special legal and political advantages.' §604. Political inequality. — The mediaeval political system was base light of the history of these amendments, and the pervatling pui-posr ol" them, wliich we have already discussed, it is not difficnll to giv(^ a meaning to this clause. The existence of laws in the states wliei-(! the jiewly eiuMucipated negroes resided, which dis- criniinated with gross injustice and luirdship against them as "Colorado, Delaware, Illinois, In- "Ohio nml Idiilio. r;,ii, i. Alabama. Montana, Nnbraska, Nevada, New a < i <5 -> , . .. T xi„... V ^\, 1" Conslitntion, Art. I, S •>• IlainpHliiro, New Jersey, New \ nrk, Pennsylvania, Uliode Island, West, " Ki Wall. 30, 1872. Virginia, Wisfonsin. § 610 EQUALITY AND EQUAL PROTECTION. 631 a class, was the evil to be remedied by this elaus(.', and by it such laws are forbidden. If, however, the states did not con- form their laws to its requirements, then by the fifth section of the article of amendment Congress was authorised to enforce it by suitable legislation. We doubt very much whether any action of a state not directed by way of discrimination against the negroes as a class, or on account of their race, will ever be held to come within the purview of this provision. It is so clearly a provision for that race and that emergency that a strong case Avould be necessary for its application to any other." § 610. Equality and equal protection of the laws.— In the thirty years that have passed since the decision on the Slaughter House Cases the equality provision of the Fourteenth Amend- ment has, however, assumed an entirely different aspect. The principle of equality is relied upon more and more to check the exercise of governmental powers, and the controlling jurisdic- tion of the federal .supreme court is invoked with increasing frequency to give it effect. The precise meaning of the clause in question has, however, not yet been defined., The words are "nor [shall any state] deny to any person within its jurisdiction the equal protection of the laws." The equal protection of the laws does certainly not mean equal participation in government, and its primary meaning is simply equal securitj^ in person and property. This narrower conception was undoubtedly most conspicuous in the minds of the framers of the amendment, and if the act of May 31, 1870,^ ^ jj^ay ije regarded as a further definition of the clause, it was also the meaning given to it by Congress. The section reads: "All persons wathin the jurisdiction of the United States shall have the same right in every state and ter- ritory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and pro- ceedings for the security of persons and property, as is en- joyed by white citizens, and shall be subject to like punish- ment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other. "^-^ These words are not absolutely in- 12 Now § 1977 Eevised Statutes. tou, 5 Cush. 19S, where it is said 13 This understanding of the that the principle " will not warrant equal protection of the laws also aji- the assertion that men and women pears iu the case of Roberts v. Bos- are legally clothed with the same 632 EQUALITY AS A POLITICAL PRINCIPLE, 611 consistent with legislative discrimination according to the dic- tates of the public welfare, and equality under the police power is, as will be seen, a problem of considerable complexity. The Supreme Court has leaned strongly against allowing the plea of a violation of the equal protection of the laws. In one case in which the appeal to the Fourteenth Amendment was sus- tained, there Avas a grossly partial administration of laws, pre- tending to be equal, but aimed at the oppression of a particular class,'^ in another case the inequality concerned the relative treatment of two parties in litigation, that is to say, the admin- istration of justiee.i^ In the matter of the police power legis- lative discretion on the part of the states is respected within wide limits.^ ^ But recent decisions show a tendency to sub- ject statutory classification to a more rigid test.^''' v; 611. Equality and due process of law.— The essential principles of equalit}^ must, however, govern the exercise of the police power, whether under the requirement of the equal pro- tection of the laws, or under that of due process. The two ideas are closely associated in the minds of the courts. In the litigation over the state regulation of railroad charges all the later cases emphasised the equal protection of the laws. In the Minnesota case^^ it was said that in so far as railroad com- panies were deprived of their property through unreasonably civil iiiid political powers, and that cliildrcn and adults are legally to have the same functions and be sub- ject to the same treatment, but only that the rights of all, as they are settled and regulated by law, are equally entitled to the paternal consideration and protection of the law for their maintenance and se- curity, ' ' Coke's comnu'iit ini tin- words of the Great Charter, nuHi vcndemus, etc., contains the essence of the principle of ('(|uality as originally understood in the phrase of the e()ual protection nl" the laws: ''ami therefore every sidtject of tliis realm, for injury J . ,Y|j,| j5yj other hand, the la\y requires that the owner leave a portion of his lot 4 Dillon Municipal Corporations, .,,ijoi,iing the street vacant ia .uder 8 7'Jl, aiioan & owner is responsible, and liie biir- 'I'liist Coiapaay, 1.")} U. S. :i()2. The den is placed u] liini for tlie I.me- following will further illustrate the fit of the pid)lic simply because his operation of the principle: The law property is needed; hence coaijuMisa- requires that a tenr-ment house shall tion is due, St. Tiouis v. Hill, IK) not cover mon! than a certain pro- Mo. 527. portion of a buihliag lot; here th(! The Prussian Co.h'of 17!l-t (lutro- iHiildiug 1)]) \-. Bainl, (i Ind. ll!. 8 State V. Madden, 81 Mo. 421. I'l Dane Co. v. Smith, 13 Wis. 58:1. 9 Robinson v. Hamilton, 60 Iowa, i" Samuels v. County of Dubuque, 134; State v. Wordin, 56 Conn. 216. 13 Iowa 536. 638 PAKTICULAE BUKDEXS. S 615 theiu.i'^' Iji an emergency the duty naturally devolves on those Avho are able to help and who are at hand. The common law has long recognised that all persons are required to nid and assist in the enforcement of the law. and authorises the sheriff to call out the power of the county, if necessary to break resist- ance. In such cases the call will necessarily be confined to a portion of the able-bodied men only, and unless the selection is clearly alfected by favor or partiality, the rule of equality is not violated. Thus services may be enlisted in case of a conflagration.'-' The Revised Code of Chicago-'^ provides that every person present at a fire shall be subject and obedient to the orders of the fire marshal in extinguishing the fire and removing and protecting property, a refusal to obey being punished by fine, and power being given to. arrest and detain the person refus- ing until the fire is extinguished, when he is to be taken before a magistrate. In Minnesota an ordinance providing" for the arrest of persons refusing at a fire to obey the orders of au- thorised persons was held void on the ground that the arrest was intended as punishment and was not inflicted by due process of law.-^ So the duty to report cases of contagious disease may be laid not merely upon heads of families, and physicians, l)ut upon, any person having knowledge of a case.-- Since in all these cases tlie duly is in reality general, no com- pensation is due.2 3 ;i 615. Underwriters' patrols. — A pi'culiai' instance of compul- sory service is found at present in the legislation of New York, Illinois, and other states, creating so-called underwriter's patrols.-* Boards of underwriters are incorporated, at the meetings of whi(di each eonipan>'. agent, oi- person doing fire 18 As to liability to military con- I lie [.i(i\isinii liaw sinc<- liccii iii.kIi! Hcription see Kiieedlcr v. Laiio, 45 }>eiioral for liii" state (1*. I>. di. ;!_, Pa. St. 238. Parker v. Kauin Mnnicipal Sanitation, p. e.i By ;i colonial ad of 1711 the 131; rcipiirfil inn number of states. fire wards (.f P.oston were antlioriseil -''i Sears v. (lallatin County, 'JO f(. c(immaM I.:i\VH of IST'J, ell. -JlMt. 7<>. "1 liiiiiiriiri V. ('!imt)r'ulfi<', 1'Jrt Mass. 438. § 619 NATURAL DANGERS. G41 required all owners of land williiii the county within !)() days to exterminate and destroy such ground squirrels on their respective lands. The Supreme Court of the state regarded the requirement as incapable of being carried out, and de- clared the ordinance unreasonable and void."'''' The court said : ''Such an ordinance differs materially from laws requiring an occupant of lands to keep them free from noxious weeds, or such as make it the duty of an owner of diseased domestic animals to kill them in order to prevent the spread of the dis- ease. These are matters over which the propertj^ owner has control, and the requirements are reasonable and just." § 619. Land not the source of the danger.— It seems, how- ever, that the improvement of natural conditions cannot be compelled, where the land to be improved does not contain the source or instrument of the danger. An act of Illinois of May 19, 1883, authorised municipalities to require repairs of embankments of riparian owners whose duty it was in law or equity to maintain them, but the act was repealed in 1899, and probably never had any application, since no such duty existed. An early act of Louisiana^"* imposed the duty of making levees to protect the inhabitants against inundation upon riparian proprietors. The dike burdens recognised by the ancient laws and customs of lower Germany fall upon all the owners of lands exposed to floods, and correspond to the principle of joint compulsory improvements sanctioned by the Supreme Court in Wurts v. Hoagland.^^'^ A Prussian statute provides that where land is in such condition and location that the maintenance of a forest on it will diminish or remove the danger of floods or landslides, the establishment or main- tenance of forests can be compelled, if the loss to be averted considerably outweighs the injury resulting to the owner from the restrictions imposed upon him. Full compensation must be awarded to the owner.^*' 33 Ex parte Hodges, 87 Cal. 162. thereby a considerable injury can 3-1 Act No. 31, February 7, 1829. be avoided from others or from the 35 114 U. S. GOG. state itself, or a considerable ad- 3« Act of July 6, 1875. This legis- vantage can be procured for either, lation is an application of the gen- provided the one or the other can eral principle laid down by the be done without any disadvantage Prussian Code of 1794, which says: lo the owner. Also where the in- the state can restrict the private jury to be averted or the advantage property of its citizens only where 41 (J42 PARTICULAR BURDENS. § 620 Reference has been made before to the doctrine enunciated by the Supreme Court of Massachusetts that when land forms a natural barrier to water courses the owner may be prohibited from unduly weakening it by removal of soil f~ but this is far from holding that positive measures of protection may be re- quired of the owner. So a railroad company cannot be required to maintain a causeway M-hich it has built for its own use, and which happens to protect lands lying back of it from the inroads of the tide.^'^ The principle seems to be that where the natural condition of property threatens an imminent danger which can be averted at reasonable expense or by reasonable restrictions, the owner may be required to do what is necessary to avert the loss; the o^^^ler of property can, however, not be required to take measures for the removal of dangers originating beyond his property, simply because his property is needed or adapted for measures of relief. § 620. Cleaning sidewalks. — The courts are not agreed whether owners of lots abutting on a street can be required to keep the sidewalk free from snow and ice. The duty has been sustained in Massachusetts,:'^ in New York,-*'* and in Indiana,-^' while the power to impose it has been denied in Illinois^- and New Hampshire.-''' The requirement is sanc- tioned by the English Public Health Act.^^ In .AFassachusetts the ordinance was upheld as a police reguhi- tion requiring a duty to be performed highly salutary and ad- vantageous to the citizens of a populous and ckisely built city, imposed upon those who are so situated that they can most ])r()niptiy and conveniently perform it, and Avho have also a peculiar interest in the sidewalk, deriving special benefits from to be procured, from or to tlio state -^ Koch v. Del.iware etc. 1^. R. Co., or its citizens, considerably out- HH N. .T. L. H.^C). weif^lis tiie disadvantafre resultinj; :•» Goddard, Pelitioiicr. IC I'irk. to tlie owner from the restriction. .'>04, ISS.'j. Ill tlie latter case, however, tlic I'l r'arthajje v. Frederick, 1J2 N. stale must take care that the owner V. 2R.S. wlio is restrained be completely in- h Hcinken v. I'ucl.rinp;, 1.30 liid. dcrmiified for the injury suffered by 382. him. Hk. 1, Title H, §§ 2;t-.^l. •-Cri.lJey v. i{|o(,rnin-,'ton. SS Til. "• ('(.mmonwealth v. Tewksbury, ^}^^4 ; Chica^'o v. <) 'liricn, 1 1 1 III. ;").•?•_'. 11 .Mete. .'').'); Commonwealth v. ki state v. Jackinan. ()9 N. IT. :ns, AlKer. 7 r„sh. r,^. -11 All. .-^47, 42 L. R. A. -438. 44 38 and 39 Vid. ch. r,ri, § 44. ^ (j20 CLEANING SIDEWALKS. 643 it for purposes of building- and passage. The New York court rests its decision ehielly on the necessity to the public and the small inconvenience to the owner. In Illinois, on the other hand, it is held that the abutting owner has the same interest in the removal of the snow as other citizens, and no more ; and that the requirement is therefore a special burden inconsistent with the principle of equality. We have then in supi)ort of the power the argument of necessity and convenience and special interest; against the power, the contention that the burden bears no relation to a condition peculiar to the person charged. The argument in favor of sustaining the duty seems the stronger one. The abutting owner has in the street fronting his premises special easements of light and air, he may use it for piling up brick while building, and keep carriages wait- ing in front of his door, and he frequently uses part of the street bed for areas, coal holes, and vaults. This special inter- est seems sufficient to justify the imposition upon those who enjoy it of a common service which is not unduly burdensome. Where the city undertakes to clean the main portion of the street, it may also be said that the apportionment of expense and labor between the city and the owner corresponds approxi- mately to the proportion of public and private interest in the street. The power to regulate property relations by changing indefinite equities into definite rights and obligations between the parties is properly a legislative power where the regula- tion affects many persons in the same condition,^'^ and, espe- cially in cases involving small amounts, is apt to produce better practical justice, than an attempt to weigh minutely charges and benefits. Here the duty is laid according to a compre- hensive and general system, and there is no such disproportion between benefit and burden as to show an abuse of legislative power."*^ In view of the fact that heavy snov/fall and the formation of ice can generally not be foreseen or guarded against, and that there is urgent need of immediate relief to prevent dis- comfort and accident, it may also be said that there is in such cases an emergency which justifies the enlistment of the aid of all who are in a position to render services without a sub- 45 Commonwealth v. Alger, 7 Cush. ^e Parsons v. District of Columbia, 53. 170 U. S. 45, 52, 57. g44 PAETICULAR BURDENS. § 621 stantial sacrifice. This argument has especial force Avhere the duty is thrown upon occupying o^vners. It is certain that the view upholding the power corresponds to the long established practice of legislation, and it may be noted that in Illinois, where the requirement was held to be unconstitutional, the power to impose it was given to the city of Chicago as early as 1837. Every presumption is in favor of the constitutionality of a governmental power which has always been exercised, and has commended itself to the pop- ular judgment as fair and reasonable. The Supreme Court of Illinois sustains the imposition upon street railroad companies of the dut}^ to clean that part of the streets which is occupied by them, partly upon the ground that the construction of the tracks prevents water, etc., from running down the gutters, partly upon the ground of special rights which the railroad company has in the street, while the abutting owner is held to have no such special right.'*' In Wisconsin, Michigan and Nebraska an owner may also be required to keep the sidewalk in front of his lot in repair.^*^ SPECIAL LIABILITY IN CONNECTION WITH HAZARDOUS UN- DERTAKINGS. §§ 621-638. § 621. Extension of liability beyond common law principles. — In a number of cases the law throws burdens upon those who engage in a business or undertaking specially affecting the public welfare, which are not in accordance with the rules of liability of the common law. The departure from the rules of the common law has been complained of as a departure from the rules of justice, and by an identification of justice with due process of law the question of constitutional power has been raised.'*'' Since these special rules of liability are reg- • ' Chicago V. Chicago Union Trac- taxing power. The requirement to tion Co., 199 HI. 2.59, 65 N. E. 243. build sidewalks has been upheld as a -•8 Hiner v. Fond du Lac, 71 Wis. police regulation in Palmer v. Way, 74; Lynch v. Hubbard, Mil Mich, (i Col. 106, and Mayor of New Iberia 43; Lincoln v. .lanesch, 63 Neb. 707, v. Fontelieu, 108 La. 460, 32 So. 369, .')6 L. R. A. 762. and as an exercise of the power to The question of the power to re- compel labor on roads in Trustees (|uiro the building of sidewalks is of Town of Paris v. Berry, 25 Ky. closely connected with the question 483. of the constitutionality of special •"'Missouri Pjuific R. Co. v. assessmentH, which belongs to the Humes, 115 U. S. 512. g (J22 ^^^"^ ^■^^' ^)''''i<-iAL SUPERVISION. (J45 nlarly created to insure an increased protection of persons and property, they fall, if valid, within the province of the police power. They involve the principle of equality, since tlie im- position of a special liability would be undue discrimination, if the special circumstances of the business did not justify it. § 622. Liability for the cost of official supervision.— ^lost states, since the latter part of the past century, have created offices or commissions to supervise certain branches of busi- ness which in a special manner affect safety or some other public interest. This has been done especially with regard to railroads and mines, and banking and insurance. In some cases the cost of these administrative services has been thrown upon the business that has made them necessary. In several states this system has been abandoned in the ease of railroad commissions,^ as unwise, since commissioners paid by the rail- road companies were found not to be sufficiently independent. The validity of such a requirement does not, howe^ver, depend upon its wisdom, and has be£n sustained by the United States Supreme Court.^ The court holds that the exaction is not in the nature of a tax, and that to require that the burden of a service deemed essential to the public in consequence of the existence of the corporations and the exercise of privileges obtained at their request, should be borne by the corporations in relation to whom the service is rendered, is neither denying to the corporations the equal protection of the laws, nor making any unjust discrimination against them. The court refers to the fact that the requirement that a vessel examined shall pay for the examination, is a part of all quarantine systems. So the vessels pay for the services of the pilots whom they are compelled to employ. In New York a statute was sustained imposing the cost of an electrical commission upon the electrical companies s^^bject to its supervision."- In Illinois the fees of grain inspectors are borne by the owners of grain warehouses,^ and the fees of mine inspectors by the owners of the mines in- spected.^ 1 So in Iowa, 1888, ch. 28, § 31. 5 Chicago &c. Coal Co. v. People, 2 Charlotte etc. R. R. Co. v. 181 111. 270, 54 N. E. 961, 48 L. R. Gibbes, 142 U. S. 386. A. .554. Similar decisions in Louisi- 3 People ex rel. N. Y. &c. Co. v. ana: New Orleans v. Kee, 31 So. Squire, 107 N. Y. 593; New York 1014 (laundries); Louisiana State V. Squire, 145 U. S. 175. Bd. of Health v. Standard Oil Co., 4 People V. Harper, 91 111. 367. :51 So. 1015 (coal oil). 646 PAETICULAK BUEDEXS. § 623 The many statutes recently enacted for the admission to certain professions upon examination almost invariably pro- vide that the examiners be paid by fees charged the candidates ; it has, however, been held that the cost of the official examina- tion of railroad engineers as to their fitness for their position may be laid only upon the railroad company employing the engineer examined, and not upon other railroad companies; i. e., the railroad company can be made to pay only for a service indirectly rendered to it by the state." § 623. Liability for the cost of remedial measures.— It has been held in Alinnesota that a special license fee may be col- lected of liquor dealers for the purpose of making up a fund for the establishment and maintenance of an asylum for inebri- ates." Here, too, the cost of a public service is laid upon that business which renders the service necessary. § 624. Liability for acts of persons employed under legal compulsion. — It has never been contended that because a steamer must have officers examined and licensed by federal authority,* the owner of the steamer ceases to be liable for their negligence. The liability of the owner is justified by the fact that he may choose his officers from among those properly qualified, that they are subject to his orders and to discharge for misconduct, and that the license does not mean a guaranty of fitness.'^ A statute of Pennsylvania^ '^ provided that no mine shall be operated without the supervision of a mine foreman;" that no one may act as a mine foreman unless he is registered, as a liolder of a certificate of qualification granted by the secre- tary of internal afl'airs;^- and that the mine foreman shall visit find examine every working place in the mine and direct that il be properly secured by props or timber, and shall see that all slopes, shafts, ways, signal ;ii)paratus, ])ull('ys and '■•Baldwin v. Louisville & N. R. R. ;ni employee, by the fact that tlin Co., 8.5 Ahi. (ill), 7 L. K. A. 26(5; employee was a registered )di:n- Nasliville, C & 8t. L. H. ('o. v. Ala- maeist, wliich elass alone was by bama, 128 U. S. 96. statute allowed to fill pres('rii)tions. estate V. Cassidy, 22 Minn. 312, Burgess v. Sims Drug Company, 114 1875. Iowa 275, 86 N. W. 307, .^t L. R. A. « United States Rev. Stat. 4438, 304. 4463. 10 Digest IS'.).^, p. 1340. "So a druggist is not relieved '< § 108. from liability for iniiiries caused by '-' § KM. a prescription negligently put up by § G25 ACTS BEYOND CONTKUL. (;47 timbering are in sai'e ami fllieit-'nt working- cuntliLion.'' For any injury to person or property occasioned by any violation of the act or any failure to comply -with its provisions by any owner, operator, mine foreman, or iireboss, the statute gave a right of action against the owner or oi^erator.' ' The Supreme Court of Pennsylvania held that so much of the last mentioned section as imposed a liability upon the mine owner for the failure of the forenum to comply with those provisions of the act which compel his employment and define his duties, was unconstitutional and void.^^ The decision should probably not be understood as meaning that the mere compulsory employ- ment of the foreman and the vesting in him of certain powers of direction was sufficient or intended to relieve the mine owner from the duty of the greatest care on his part, but only that in so far as a direction was made by the foreman within his statutory powers, the owner could not be made liable for the consequences of complying with such direction. It would have to be assumed that the owner did not know of the fore- man's incompetency, or, having such knowledge, had no power to discharge him. The principle would then simply be that one person cannot be made liable for the acts of another per- son, which are made binding upon him by law. Such liability would be without any fault, a special burden without any pos- sibility of avoiding it. ij 625. Ship's liability for fault of pilot.— Yet it has been held by the United States Supreme Court, in accordance with certain decisions of state courts,^ ^ that a vessel is liable for a collision solely due to the fault of the i)ilot whose employment was compelled by the port regulations.^'^ The court bases its decision upon the old established ])rinciple of the maritime law impressing upon the ship the liability for the damages it has caused, a principle not yielding to port regulations Avhich the ship owner voluntarily adopts by bringing the vessel wilhiti the port. It is also said that "it is the duty of the master to interfere in cases of the pilot's intoxication or manifest inca- ])acity, in eases of danger which he does not foresee, and in all 13 §§ 149, 150. 206; Williamson v. Price, 4 Mart. 14 §216. N. S. 399; Yates v. Brown, 8 Pick. 15 Durkin v. Kingston Coal Com- 23. puny, 171 Pa. St. 193. it The China, 7 Wall. 53. 16 Bussy V. Donaldson, 4 Dall. 648 PAETICULAE BURDENS. § 626 eases of great necessity. The master lias the same power to displace the pilot that he has to remove any subordinate officer of the vessel. He may exercise it or not, according to his discretion." Perhaps this view of the relation of the master to the pilot may help to reconcile the decision Avith the principle before stated. In England the vessel under similar circumstances is by statute exempt from liability .^^ Such is also the rule under article 738 of the German Commercial Code. And the same rule has recentl}' been recognised by the Supreme Court of the United States as governing actions at common law as dis- tinguished from suits in admiralty.^^ § 626. Civil damage acts. — In several states the laAv provides that any person, or designated relatives (especially husband, Avife, child and parent), who shall be injured in person or propert}^ or means of support, by any intoxicated person, or in consequence of the intoxication of any person, shall have a cause of action for damages against the person who by suppl^y- ing the liquor caused the intoxication, and against the person Avho as OAvner, etc., permits the occupation of premises for the sale of the liquor which causes the intoxication resulting in such injury.-" In some states also the recovery of gambling losses is allowed against the owner of the premises Avho know- ingly allows them to be used for gambling. It is obvious that in such cases the chain of causation between the conduct of the person held liable and the injury for whicli he is held liable is so long and in ils initial links so weak that connnon sense rather revolts against the injustice of the rule. Yet the rule has be(ni h(>l(l to be constitutional.-' The New York Covn-L of ApjK-als holds that while the Icgis- latnre may not impose upon one man a liability foi- an injniy sull'ci-cd by anotlier with which he had no connection, it may change; the lulc of the common law which looks only to Dm ])roximate cause ol" the iniscliicr. in attaching legal i'cs])onsi- i»52 Geo. III. ell. I'll, § :U); Mcr- -'i Bertliolf v. O'Reilly, 74 N. Y. .•li;mt Rliippiiijr Art, 1X94, § ().3:^. r>()9, 1878; Mullen v. Peck, 49 Oh. ii'lIomcT K;nnH(l<"ll Transportjitioii St. 447, SI N. E. 1077; Bedore v, Co. V. ('(iiiipiifjiiio (Jf'ii. TranHatliinti- Xcwidii, .^4 N. II. 117; State v. (Hie, 182 U. S. 400. l,ii(lin;>;t(iii, :53 Wis. 107; Ilowea v. i"e. ii. Mass. Rev. Eaws, cli. IDO. Maxw(>ll. ir.7 Mass. :]r.]. § 58, § 626 CIVIL DAi\JAGE ACTS. 649 bility, and allow a recovery to be had against those whose acts contributed, although remotely, to produce it. The court admits that the only absolute protection against the liability imposed by the act is to be found in not using or permitting the premises to be used for the sale of intoxicating liquors, and it relies strongly upon the legislative power to prohil)it such sale entirely. Instead of prohilnting the legislature may tliscourage the traffic by creating liability for consequential damages. The court speaks of the act as an extreme exercise of legislative power, and it is to be noted that New York has abandoned this legislation, giving a cause of action to a person injured through intoxication only if he gave notice to the seller not to sell to the person intoxicated.22 It appears that the only ground upon which the liability of the owner of the premises can be sustained is that he might have forbidden their use for selling intoxicating liquors. This implies that he had no absolute right to let them for that pur- l)ose, and that again means that the sale of liquor is absolutely within the control of the legislature.^^ Upon a similar reason- ing the civil damage acts in cases of gambling are to be su])- ported.-^ -- Liquor Tux Law, § 39. -3 Howes V. Maxwell, 157 Mass. -i Trout V. :Marvhi, 62 Oh. St. 132, 5G N. E. 655. Note: Subcontractors' liens. — A similar difficulty is presented by the provisions of the Mechanics' Lien Laws which allow subcontractors or laborers to file liens against the property upon which they have been employed, for labor and material furnislied in improving it, although there is no privity of contract be- tween them and the owner. This Itgislation docs not fall under the ]iolice power, since it is enacted merely for the enforcement of private claims, and will therefore not be fully considered here. See Boisot, Mechanics' Lieu Ijaws, § 23. it is sustained in a number of jurisdictions upon the ground that the law constitutes the contractor the owner 's agent for contracting with others, and makes the owner the surety for the performance of the contractor's subcontracts, and that the law may thus import its stipulations into future contracts be- tween owner and contractor. Hart V. Boston &c. E. E. Co., 121 Mass. 510; Bardwell v. Mann, 46 ]Minn. 285, 48 N. W. 1120; Mallory V. La Crosse Abattoir Co., 80 Wis. 170. Other jurisdictions, however, deny that the law may impose burdens upon the owner as a condition of allowing him to improve his property, the creation of wliich he lias not by any act of his invited, and whicli he cannot by rea- sonable precautions avoid. Wat- ers V. Wolf, 162 Pa. St. 153; Palmer v. Tingle, 55 Oh. St. 423. 45 X. E. 313; .Tohu Spry Lumber Co. V. Sault Savgs. Bk. Loan & Trust Co., 77 :\rich. 199, 43 N. W. 778. 650 PAKTICULAK BURDENS. § (J27 If the power of prohibition did not exist, if the OAvntr had a constitutional right to let his premises for the sale of liquor, he could evidentl}^ not be held for consequences of the exercise of that right over which he had no control. It follows also from the principle that acts which are of common right cannot be burdened with consequences flowing from acts of others which cannot be foreseen or avoided, that when the tenant sells liquor illegally without the knowledge of the landlord, the latter cannot be held liable.--"' § 627. Liens under U. S. revenue laws.— The llnited States Revenue laws, under which land used for an illicit distill- ery may be forfeited, providers that no bond of a distiller shall be approved, unless he is the owner in fee, unencumbered by any mortgage, judgment or other lien, of the lot of land on which the distillery is situated, or unless he files with the col- lector the written consent of tlie owiici- and of any mortgagor or lienor, that the premises may be used foi* the i)urpose of distilling spirits, subject to the provisions of law, and expressly stipulating that the lien of liie United States for taxes and penalties shall have priority over such mortgage or lien, and that in case of the forfeiture of the distillery premises the title to the same shall vest in the I'liitcd States discharged from such mortgage, judgment or other iiicuiiibrance.-'^ It also appears from the case of United States v. Stowell, last cited, that personal property used in the violation of the revenue laws, does not become the subject of forfeiture, unless so used with the consent or connivance of the owiiei-. Jf the law is to be free from the ineiits in;ule by the owner lo tlie coii- objc(;tion of creating arbitrary and tractor subsequent to sueh notice, therefore unconstitutional burdens, Kellogg v. Howes, 81 Cal. 170, 22 it should make the owncM- or liis inop- 1 :ic. 509; Rtinison Mill Co. v. Braun, erty liabh- at most for tlie fair vahie i;Ui Cai. 122, 6S i':ic. ISl, HT L. IJ. of flui labor and material furnished, A. 726, 1002. and not for any contract price -•"'State v. Williams, I'.O X. .1. L. agreed upon between lienor and con- 102; City of Canipbellsburg v. Oilc- tractor in excess of what tlu; owner wait (Ky.), 72 S. W. .">M. agreed to pay; and there sliouhl b(! '-'" Kev. St. § ^2()2. either a provision that lien notices -" Dobbins v. United Sliites, '.Mi IT. must be fded within a brief period S. .■JD.'j; United States v. Stowell. ]X', after the work is done, or ilmt the U. S. 1. lien notice shall invalidate only pay- § 628 DA.N'GEKS FROM KAILKOADS. 651 § 628. Dangers arising from the operation of railroads. — It is a matter of common experience tliat the employment of stfam or other mechanical power for purposes of locomotion is attended with danger to the safety of persons and. under certain conditions, of property. The courts recognise this by exacting of railroad companies an extraordinary degree of care. They have, moreover, in vieAv of the difficulty of proving negligence, raised certain presumptions unfavorable to the rail- road company or other carrier: thus where an accident hap- pens, and the passenger shows that he was free from negli- gence, it will be presumed that the carrier was at fault,^** and if fire can be traced to the locomotive of a railroad a like pre- sumption will arisc^'-* Rules that the courts evolve without legislation will naturally also he sanctioned bj^ the courts if enacted by statute.^*^ In Xorth Carolina a statute has been upheld which shifts the burden of proving contributorj' negligence on the part of the passenger to the railroad company.^i A statute of Kentucky provides that the killing or injuring of cattle by the engine or car of any company shall be prima facie evidence of negligence and carelessness on the part of the company, its agents and servants.^2 go in a number of Southern states, statutes makiner railroad companies responsible for all damage done or caused by the running of trains, to cattle or otherwise, have been interpreted as shifting the burden of proof, and have been upheld upon this construction.'''^ § 629. Injuring or killing of cattle.— In many states legisla- tion has been enacted requiring railroad companies to fence their tracks in order to prevent the straying of cattle thereon. As the requirement tends to protect the safety of trains and passengers as well as that of the cattle, it is clearly an exercise of the police power.^^ In Kentucky it seems to be justified 28 Yeomans v. Contra Costa etc. 3?. Ark. 816 ; Tilley v. St. Louis &e. Co., 44 Cal. 71. R. C, 49 Ark. .53-5; :\racon &c. R. Co. 29 Shearman & Redfield, Negli- v. Vaughn, 48 Ga. 464; Mobile &c. gence 5th Ed. § 676. R. C. v. Williams, 53 Ala. 595; 30 Augusta & S. R. R. Co, v. Ran- . Nashville' & Chattanooga R. Co. v. .lall, 79 Ga. 304. Peacock, 1^5 Ala. 229. "1 Wallace v. Western X. C. R. " » Thorpe v. Rutland &c. R. Co., Co., 104 N. C. 442. 27 Vt. 140; Railway Co. v. Sharpe, 32 Kentucky Statutes 1899, § 809. 38 Oh. St. 150; Pennsylvania R. C. 33 Little Rock etc. R. Co. v. Payne, v. Riblet, 66 Pa. St. 164; Missouri 652 PAETICULAE BUEDENS. § 629 exclusively as a measure of safety of traffic, for it has been held to be an unconstitutional delegation of the police power to leave it to the option of the adjoining land owner whether the fence shall be built or not.^^ It is generally admitted that where the requirement exists, the company failing to erect or maintain such fence may be made liable for all damage to cattle caused thereby,^^ although the owner allowed his cattle to stray, and trespass on the tracks. 3" It has also been held that a statute is valid which makes the railroad company liable for the killing or injuring of stock by moving trains, etc., on unfenced tracks, the act being inter- preted as applying to stock killed in consequence of the neglect to maint.-im fences and as containing an implied requirement to build a ''ence.^^ A similar statute was held to be unconsti- tutional in Washington, partly on the ground that no provision was made for the case that no fence could be laAvfully erected, and also because the erection of a fence would apparently ex- cuse from liability even where there was negligence. ^o This case evidently assumes that an absolute liabilit}^ cannot be imposed. The question whether in the absence of any requirement of fencing, express or implied, the legislature can make the rail- road company liable for the killing or injuring of cattle by the running of trains irrespective of negligence or of the lack of fencing, has been presented to the courts of several states : six of these have declared such law to be unconstitutional,-*" Pac. E. Co. V. Humes, 115 U. S. 512; 22 N. W. 519, 71 Wis. 472, 37 N. W. Missouri Pac. E. Co, v. Harrelson, 44 834. Kan. 253, 24 Pac. 465; .Johnson v. st Conviu v. New York & Eric Oregon Short Line E. Co. (Idaho). K. E. Co., 13 N. Y. 42; otherwise at 53 I-. 11. A. 744; Illinois Central E. c., 115 IT. S. 512; Birmingham etc. E. 58 Ala. 594; Birmingham etc. E. CV*. V. Parsons, 100 Ala. 662; .Tones E. Co. v. Parsons, 100 Ala. 662; V. Cialena ete. E. E. Co., 16 Iowa 6; Biclenberg & Montana etc. E. Co., 8 Texas Cenlrnl U. E. Co. v. Childress, Mont. 271. 2 L. E. A. 813; .Tensen 64 Tex. 3 Hi; Qnackonbush v. Wis- v. ITnion {'acific E. Co., 6 Utah 253. consin &<•. E. E. Co., 62 Wis. 411, 4 L. E. A. 724; Schenck v. Union §680 riKES FROM L0C0M0T1VE«. G58 while one court lias lei't the question open." The .Suiifciue Court of the United States has not yet had occasion to pass upon the question. The constitutionality of the burden may br defended ])y the analogy of the absolute liability for damage done by (ire; but, as pointed out by the Supreme Coui-t of Connecticut,"* 2 in this case the animals injured are where they ought not to be — trespassers obstructing the defendant's rail- road track, directly exposing the defendant's property to hazard and loss. § 630. Fire started by sparks from locomotives.— On the other hand it is well established that railroad companies may be made liable for losses by fire communicated to property by sparks escaping from locomotives, notwithstanding the fact that they have used every possible precaution. The law upon the subject is fully reviewed in the learned opinion of Justice Gray in St. Louis & S. F. R. Co. v. ^Mathews.'^^ It appears that the rule of absolute liability was established in ^Massachusetts as early as 1840, changing the earlier rule contained in the statute of 1837, which absolved the railroad company on proof of due caution and diligence.'*^ The reasons on Avhich this statute was maintained are stated by ShaAV, Ch. J., in ITart v. Western Railroad Co. :^^ "Railroad companies acquire large profits by their business. l>ut their business is of such a nature as necessarily to expose the property of others to danger; and yet, on account of the great accommodation and advantage to the public, companies are authorized by law to maintain them, dangerous though they are, and so they cannot be regarded as a nuisance. The mani- fest intent and design of this statute, we think, and its legal effect, are, upon the consideration stated, to afford some, intlemnity against this risk to those who are exposed to it and to throw the responsibility upon those who are thus authorised 1o use a somewhat dangerous apparatus, and "vvho realise a l)rofit from it."^*^ J'iit-ific R. Co., 5 Wyo. 430; Cateril ^^ Grissell v, Housatonic R. R. Co., V. Union Pacific E. E. Co., 2 Id. 540, 54 Conn. 447. 21 Pac. 416; Oregon R. R. Nav. Co. •»•'' 165 U. S. 1. 1008, 22 Am. St. Eep. 14.3. 44 Lyman v. Boston & Worcester •ti Wadsworth v. Union Pa<-ifi<' R. R. R. Co., 4 Cnsh. 288. V. Smalloy, 1 Wash. St. 206, 23 Pac. -t-"- 13 Mete. 99. Co., 18 Col. 600, 23 L. R. A. 812. 40 See, also, Grissell v. Housa- 654 PAETICULAE BUEDE.XS. ^631 § 631. Railroad crossing's. — The obligation freqnently ex- pressed in railroad charters tliat the railroad company shall l^nt highways which they cross in such condition and state of repair as not to impair or interfere with its free and proper use, relates to highways in existence when the railroad is built. In the absence of any positive regulation the expense of carrying a new street over a railroad must be borne by the municipalit}^ laying out the street,'^^ and in Illinois an ordinance requiring the railway company to make a safe and proper crossing was held invalid.'^ *^ It is held in IMassachusetts, Minne- sota and Kansas that the railroad company is entitled to com- pensation for i^lanking its roadway at the crossing of a new street,"^ ^ and in IMichigan such compensation may be claimed as a constitutional right.-''*' Gradually, hoAvever, the view has been gaining ground that the duty to make crossings safe may be imposed upon railroad companies, although the highway is built across the railroad and not vice versa. In some cases this duty Avas created under a reserved power to allow th(> corporate charter,^ but the re- quirement has also been maintained in the absence of any such reservation as an exercise of the police power.- In Illinois a law of 1869^ provided that "hereafter, at all of the railroad tonic &c. R. E. Co., 54 Conn. 447 ; Flinn v. New York C. & H. E. E. Co., 342 N. Y. 11, 36 N. E. 104G; Balti- more & Ohio E. E. Co.' V. Krcager, 61 Oh. St. 312, .56 N. E. 203. 47 Northern Central E. E. Co. v. Baltimore E. E. Co., 46 Md. 425; People V. Lake Shore & M. S. E. Co., C2 Jlich. 277. 48 Illinois Central E. Co. v. Bldomington, 76 111. 447. It was Kaid in a later declKion llial the point Avas left undecMded in IKia tase which merely held Ui;i1 IIk: city liaving made the crossing conhl not recover the expense from the rail- road company ((!hicago & N. W. E. Co. V. Chicago, 140 111. 309). ■•"State V. ITcnnojiiii T'n. Dis(r. Ct., 42 Minn. 247, 7 I.. \l. A. IJI ; Boston & Albany E. Co. v. <'ain- bridge, 159 Mass. 283; Kansas Cen- tral E. E. Co. V. County Commission- ers, 45 Kaus. 716. T'O Chicago & Grand Trunk E. Co. V. Hough, 61 j\Iieh. 507; compare with Peoj^le v. Lake Shore & M. S. E. Co., 52 Mich, 277, where it was intimated that the railroad com- pany might be hold for the expense of making approaches. ^ Albany &c. E. Co. v. Brdwiicll, 21 N. Y. .345; Portland &c. E. Co. v. Decring, 78 Maine, 61; New York & N. E. E. Co. V. Waterbury, 60 Conn. 1. - i'.ostcui &c. E. Co. V. Eailroail C(>inniissioners, 79 Me. 386; Balti- more & O. S. W. B. E. Co. V. State (Ind.), 65 N. E. .508. •'•Now § 8 of 11h> Act of 1874, re- garding fencing and operation of j'ail roads. ^ (];U RAILROAD CROSSINGS. 055 crossings oi" liijiliwjiys iind streets in tliis state, the sever;!! railroad eorporations shall eonstriiet and maintain said ei-oss- in<^s and the approaches thereto, within their respective rij^hls of way, so that at all times they shall be safe as to persons and property'." The Supreme Court of Illinois regards this as a legitimate police regulation, no niattei- whether the highway comes to the railroad or the railroad to the highway.^ This view has been practically adopted by the Supreme Court of the United States/^ As the safety of crossings may require the elevation or de- l)ression of tracks and involve great expense, it is proper to inquire whether the imposition of the duty is in accordance with constitutional principles. The problem is here, as in the case of cattle guards and fences, one of causation and responsi- bilit3\ Can the railroad company be held accountable for dangers resulting from improvements which are not for its benefit and which it has not invited ? Is it not true that the municipalit}' in directing travel across the railroad creates a new danger which the operation of the railroad itself would never have caused ? This contention has been answered by pointing out that travel across the railroad is as much a neces- sity as travel on it, and that the avoidance of accidents Avitli regard to it is one of the inevitable risks of railroad opera- tion, for which the owners of the railroad may be held re- sponsible no matter at wha|; time tlie travel is conducted across the road. "Unless every railroad company takes its right of way subject to the right of the pul)]ic to have other roads constructed across its track whenever the public exigency might be thought to demand it, the grant of the privilege to construct a railroad across the state w'ould be an obstacle in" the way of its future prosperity of no inconsiderable magni- tude."^ Consequently "every railroad companj^ takes its right of way subject to the right of the public to extend the public highways and streets across such right of way;"" and, 4 Chicago & X. W. R. Co. v. Chi- Railroads, V27 Mich, 219, 86 N. W. cago, 140 111. 309, the point not be- 842, affirmed Detroit &e. Ry. v. Os- ing directly involved in the case. born, 189 U. S. 383. 5 Chicago, B. & Q. R. Co. v. Chi- c Chicago & A. R. Co. v. Joliet cago, 166 U. S. 226. Similar prin- etc. R. Co., 105 111. 388. eiple where one railroad crosses ^ Chicago & N. W. R. Co. v, Chi- inother railroad. See Detroit, Ft. cago, 140 111. 309. W. & B. T. Rv. v. Commissioners of 656 PARTICULAE BURDENS. ;< 632 if so, the imposition upon it of the burden of measures required for the safety of the highway from dangers due to the opera- tion of the railroad is justifiable. It is, however, also true that the operation of the railroad would not cause danger at the particular place if it were not for the new establishment of the highway. There is at least a divided responsibility, and this, together with the great expense of raising or lowering tracks, has led in many instances to agreements between municipalities and railroad companies, by which the burden of the abolition of grade crossings is divided between both.^ In the New England States provision has been made by statute for an apportionment of the burden, in which the state shares.'^ § 632. Injury to passengers.— Nebraska seems to be the only state which imposes upon railroad companies a liability not- withstanding due diligence on their part or slight negligence on the part of the passenger. The statute reads i^^^ "Every railroad company shall be liable for all damages inflicted upon the person of passengers while being transported over its road except in cases where the injury done arises from the criminal negligence of the person injured, or where the injury com- plained of shall be the violation of some express rule or regula- tion of said road actually brought to his or her notice. ' ' Crim- inal negligence has been defined as flagrant and reckless disregard of one's own safety and mdifference to injury liable to follow." The statute has been ui)held in a number of eases without a thorough discussion of principle ;^2 and in a recent case the court says:^-' "Whether these decisions are altogether sound in principle we will not stop now to inquire. They sihince opposition by their mere numerical strength, and with- out ncknowledging a servile submission to precedent we feel 8 See Brooke v. Philadelphin, 162 277; New York & N. K. R. Co. v. Pa. 123; Argentine and A. T. & St. Bristol, 151 U. S. 556. V. R. Co., 55 Kan. 7.30; Kolly v. lo Compiled Statutes, eh. 72, Art. Minneapolis, 57 Minn. 294; Chicago, T, § 3. B. & Q. R. Co. V. Nebraska, 170 IT. " Cliicago, B. & Q. \<. Co. v. S. 57; Chicago v. .Tackson, IOC) 111. Hague, 48 Neb. 97. 496, 63 N. E. 1013. '-'Union P. R. Co. v. Porter, 38 "Boston & A. R. Co. v. County Neb. 226, "it is not believed that Commissioners, 116 Mass. 73; Laws the statute is unconstitulimKil. " 1«90, eh. 428; Rev. Laws, di. Ill, § '-t Chicago, R. I. & P. R. Co. v. 149; Wof.dnifr v. Cnllin, HI Cnrui. Ynung, 58 Neb. 678. 79 N. W. 556, § 63:5 PERSONAL INJURIES. G57 bound to accept them as conclusive evidence oi' wlial Ihc law is." The Supreme Court of the United States has affirmed another decision involving the same statute, partly, it is true, upon the ground that the railroad company accepted th.- liability with its charter, but strongly intimating that the rule of absolute liability is justifiable on principle.^ ^ § 633. Absolute liability for personal injuries under other legal systems.— As early as 1838 a Prussian law provided : 'A i-ailroad company is bound to compensate for all damage aris- ing in the carriage on its road to the persons or goods carried or to other persons and their property, unless it can prove that the damage w-as caused b}^ the fault of the person injunnl or by an inevitable outward accident. The dangerous char- acter of the enterprise itself is not to be regarded as .such accident relieving from responsibility." A German Imperial Law of 1871 provides : "If in the opera- tion of a railroad a person is killed or injured in his body, the manager or owner is liable for the resulting damage unless he shows that the accident was caused by a force of nature or by the person's oa^ti fault." The liability thus extends to passengers, servants and strangers equally. The same principle was adopted in favor of workmen only, but so as to include factories, mines, quarries, engineering works, buildings above 30 feet in height, and agricultural em ployments, by the English Workmen's Compensation Acts of 1897 and 1900. The workman loses his right only if his own serious and wilful misconduct is the cause of the accident. Compare Report of Industrial Commission, IV, p. 29, which says: "No witness demands that the law of employers' liabil- ity shall be made as broad as in Great Britain, where the em- ployer is liable for a limited amount of damages on account of injury from any cause whatever, in the absence of con- tributory negligence on the part of the employee injured." § 634. Constitutionality of absolute liability. — If the rule of absolute liability is held to be unconstitutional, it must be on the ground that justice and equality forbid that a person be required to make good the loss of another, unless some fault, 14 Chicago, R. I. & Pac. R. Co. v. 610, S. C. 183 U. S. 582. Zernecke, 59 Neb. 689, 55 L. R. A. 42 658 PARTICULAR BURDENS. § 634 or cul]) AVhere the law prohibits the possession of killed game dur- !!• Brim v. Jones, 11 Utah '200, '29 CommomTealth v. Farren, 9 Allen 1.. R. A. 97. 489. "If the legislature deem it ■-"Bishop New Criminnl T^aw I, important that those who sell shall Jji; 285-336, 425-429. be held absolutely liable notwith- ■ii See Reg v. Tolson, 23 Q. B. Div. standing their ignorance of the 168; Commonwealth v. Mash, 7 adulteration, we can see nothing un- ^letc. 472, and Bishop's note there- reasonable in throwing this risk to, New Cr. L. I. § 303a, notes 15, upon them;" also Commonwealth v. 16, 18. Evans, 132 Mass. 11. 22 People V. West, 106 N. Y. 293; -',-! Criminal Code. § 9ni. 660 PARTICULAE BURDENS. 8 635 ing the close season, it has been held to be no valid defence that the game was killed and acquired during the open sea- son.2-* This decision assumes that it is possible so to arrange the killing and buying of game that it will be disposed of en- tirely during the open season. A statute of ^Maryland pro- vided that, any person should be liable to an indictment who should have in his possession any book or record of numbers drawn in any lottery or any record of any lottery ticket. The accused alleged that the articles were given him by some one he did not know, to deliver them to another man, and that he had no knowledge what the articles were. It was held that it was not necessary to allege or show knowledge; that on grounds of necessity mere possession might be made to con- stitute the offense ; it being intimated that under a reasonable construction of the statute an innocent finder or other clearly innocent holder would not be punishable, or would at most have a nominal fine imposed upon him— the latter alternative, it would seem, a somewhat questionable expedient.^" Per- haps a penalty may be imposed notwithstanding that the un- lawful character of the act could not have been ascertained ■ with due diligence, if the act itself may be entirely forbidden. So a person might be punished for selling liquor to a minor, though the minor represented himself to be of age, and his true age could not be discovered. And so as to a sale to a habitual drunkard.^^ It is held in New Hampshire that the legislature may provide for double damages for injuries caused by the bite of a dog ; " it was to discourage the keep- ing of such dogs that the penalty was imposed,"-" and the keeping of dogs is under the absolute control of the legislature. Mere protective measures may, of course, be taken whether the party whose property is affected thereby is at fault or not ; so animals straying at large may be impounded irrespective of 24 Smith V. state, 155 Ind, 611, 8 N. E. 898; Commonwealth v. Zelt, 58 N. E. 1044, 51 L. R. A. 404. 138 Pa. 615, 11 L. K. A. 602; State 20 Ford V. State, 85 Md. 465. v. Hartfiel, 24 Wis. 60. In Oliio 20 Under tlio following decisions ;nid Indiana ignorance has been held ignorance does not protect: Farmer 1.> be a protection; iMillor v. State, V. People, 77 111. 322; Ilnmpe- 3 Oh. St. 475; State v. Kalb, 14 Ind. ler V. People, 92 111. 400; .Tami- 403; Farrell v. State, 45 Tnd. ."^71. son V. Burton, 43 lo. 282; Common- 27 Craig v, Gerrish, 58 N. H. 513. wealth V. Julius, 143 Mass. 132, § 636 PENAL LIABILITY AND IGNORANCE. 661 any nep:lip:ence on the part of their owner; and h<' may Ix- charged with the cost of impounding.-*' i5 636. Knowledge presumed.— The Supreme Court of Mas- sachusetts says: ''Of course, all liability is measured by thir defendant's knowledge. The question accurately stated is what knowledge is sufficient to throw the peril of action upon the person who does a certain act."-'' And this is further ex- plained as follows: "When according to common experience a certain fact generally is accompanied by knowledge of the further elements necessary to complete what it is the final ob- ject of the law to prevent, or even short of that, when it is very desirable that people should find out whether the fur- ther elements are there, actual knowledge being a difficult mat- ter to prove, the law may stop at the preliminary fact, and, in the pursuit of its policy, may make the preliminary fact enough to constitute a crime. It may say that, as peoj)le gen- erally do know when they are selling intoxicating liquors, they must discover at their peril whether what they sell will intoxicate. It may say that if a man will have connection with a woman to whom he is not married, he nmst take the chance of her turning out to be married to some one else. In like manner it may say that people are not likelj'' to resort to a common gaming house without knowing it, and that they must take the risk of knowing the character of the place to which they resort, if the implements of gaming are actually present. ' '^" § 637. Penal liability of railroad companies.— Railroad com- panies or their agents cannot be made liable criminally or in penal damages for the killing of stock without any neglect on their part.^^ The killing is not a voluntary act, and the run- ning of the trains a lawful occupation which the legislature could not prohibit entirely. The matter assumes a different aspect where the railroad company neglects to fence its tracks; this supplies the element of fault, and penal liability is jus- 28 MeVey v. Barker, 92 Mo. App. Ccrdes v. State, 37 Kan. 48: knowl- 498. edge sufficient to excite the sus- 29 Commonwealth v. Regan, 182 picions of a prudent man would be Mass. 22, 64 N. E. 407. equivalent to knowledge of the ulti- mo Commonwealth v. Smith, 166 mate fact. Mass. 370, 44 N. E. 503, 1896. Also si State v. Divine, 98 N. C. 778. 662 PAETTCrLAR BUEDEXS. § 637 tified.22 'phe validity of penal liability has been denied under statutes making simply an exception in favor of railroad com- panies fencing their tracks, on the ground that as the statute imposes no duty to fence, there is no fault.^'^ The penal liabil- ity in the acts for the protection of live stock is generally imposed for damage caused by the absence of the fence. Puni- tive damages or other penalties have also been imposed by statute for failure to pay for the injury done within a stated time after notice is given to the railroad company. Such a penalty has been declared invalid in North Carolina^^ and in Xebraska.35 The Supreme Court of the United States has sustained a law giving punitive damages in case of refusal to pay within thirty days after demand, but the penalty was imposed only if the duty to fence was neglected.^*^ To impose a penalty simply because a claim is resisted, seems to violate the constitutional right to due process and equal jus- tice; for if there is a defence to the claim there must be an opportunity to have an ndjudication upon it; the penalty can be legitimate only if the litigation shows that a defence was interposed vexatiously, for the purpose of delay. ^" The de- cision in Minneapolis, &c, R. R. Co. v. Beekwith can be recon- ciled with this view by treating the statute in question ;is im- posing a penalty for failure to fence, and remitting the penalty, if the claim 'is paid Avithout litigation. In Atchison, &c, R. R. Co. v. ]\ratthews:>^ the Supreme Court, in sustaining a statute imposing the payment of an at- torney's fee upon railroad companies in actions against them for damages in case of loss by fire caused by spai'ks from locomotive, said: "If in order to accomplish a given beneficial result, a result which depends upon the action of a corporation, 32 Cairo & St. L. E. Co. v. Peoples, 37, pnrtly by reason of special con- 92 111. 97 ; Tredway V. Sioux City &c. stitiitionnl prnvisions not toiu'liiii;^ E. R. Co., 43 la. 5li7; Missouri Pac. the gencinl |irinciiil(> of li;il)ility. E. Co, V. Humes, 115 U. S. 512; so :\liniieai)olis & St.. L. E. E. Co. liarnett v. Atlantic & P. R. Co., 68 v. Beekwith, 129 U. S. 2(5. Mo. 56; where the ])cnal liability :'7 See especially remarks in Cot- eonsists in double damafri-s, 1he jicii- ting v. Kansas C. St. Y. Co., 183 IT. ally is also indpnrHonate to the S. 79, 100, 102; but see Union Cent. < ITfjnse. T'ife Tns. Co. v. Chowning, 86 Tex. •■■•I Wa.lHWorth V. Union Pac. E. 654. 26 S. W. 982, 24 T.. R. A. 504, Co., 18 Col. 600, 23 li. H. A. 812. an regulations must leave a way open to every person who will comply with the )(M|nii-(»ments of the ordinance, to engage in thr husiness;" bnt in an early case in Massachusetts sneli a limitation was not regarded as necessary.^ 8St. Louis V. Webbor, 44 Mo, .'547; "Matter of Lowe, 51 Knii. Z.'j?, State V. Sarradat, 40 Lh. Ami. 700, 27 L. R. A. .545. 24 T>. R. A. r)84; Ex jiartc liyrd, S4 « Re Vjindine, (i Pick. 187, 1S2S. Ala. 17, 4 S... .'?!)7, r, Am. St. Hep. See State v. Tlill, 126 N. C. 113!), ?,2H. r)0 L. R. A. 47.S, where an ordinance "Belling v. Evansville, 144 Ind. ii'(|iiiririfr a liciMisc for sc^avenger 644, 42 N. E. 621 ; Cronin v. Pe()[)Ii', work wliicli pri'vcntcd owners from 82 N. Y. 318. removing refuse from tlicir owu § 642 UNREGULATED DISCHKTIOX. 667 ^642. License a ministerial or a judicial act.— 11' the law prescribes exhaustively the conditions under which the act or thing is permissible, either no license is required, or the license is in the nature of a certificate the issue of which is a ministerial act. The license asJ3umes a different character where the law does not specify the conditions undin- which the act or matter is to be lawful, but requires a determination to be made from case to case according to the judgment of some designated authority. The law delegating such discretion may be a statute or an ordinance, the authority designated may be the legislative body of a municipality or some administrative officer or board. i; 643. Unregulated discretion: cases in which held uncon- stitutional.— There are authorities which hold that an ordinance regulating noxious establishments or the use of public places cannot lawfully be framed in such a manner as to make the right in each case dependent upon a permit without specify- ing the conditions under which the permit is to be issued or withheld. It has thus been held that absolute discretion cannot be given to boards of health to grant or withhold permission to conduct laundries,*^ or to the iMayor to revoke permits for keeping steam engines,^'* that the right to erect buildings," to run a hackney coach,^- to store inllammable oil,^^ or pressed hay,^'* to establish a slaughter house,^^ or a hospital,^^ or a dairy,'" or a laundry,!"* cannot be made to depend upon the permission granted by the common council, still less upon the permission of an administrative officer,'-' without further regu- lation of the conditions determining the grant or refusal of the license. So, with regard to the use of public places, an or- dinance was declared void, which required for j^arades the premises was held unreasouable and i* Mayor of Hudsou v. Thornc, 7 void on account of its special pro- Paige (N. Y.), 261. visions. i^' Bartliet v. New Orleans, 24 Fed. 9 Re Woh Lee, 26 Fed. 471. Rep. 563. 1" Baltimore v. Radecke, 49 I\Id. i*"- Bessonies v. Indianapolis, 71 217. Ind. 189. 11 Newton v. Belger, 143 Mass. i" State v. Maimer, 43 La. Ann. 598, 10 N. E. 464; State v. Tenant, 496, Sou. Rep. 480. no N. C. 609, 15 L. R. A. 423. '^ Vick Wo v. Hopkins, 118 U. S. 12 State v. Fiske, 9 R. L 94. 356. 13 Richmond v. Dudley, 129 Tnd. i'-' Sioux Falls v. Kirby, 6 S. D. 112, 13 L. R. A. 587. 62, 25 L. R. A. 621. 668 SPECIAL PRIVILEGES. § 643 consent of the mayor; it was admitted that it might be proper to confine parades to certain streets or certain hours, or require previous notice to the police; but it Avas held that general conditions must be fixed by bye-laws, and that to commit an arbitrary power to the ]\Iayor was unreasonable.2'> In Illinois an ordinance was held to be invalid which pro- Iiibited parades, processions and open air meetings without a permit from the police department, such permit to designate the route to be followed and to issue without fee.-^ The de- cision went partly on the ground that the ordinance was an unauthorized delegation of power by the common council to the police department, partly that it gave the authorities a power to discriminate. In j\Iichigan an ordinance making all processions with music illegal without the consent of the mayor and council, and requiring those authorised to conform to the directions of the mayor and chief of police, under heavy penalties, was held to be invalid because it left the matter to an irregular official discretion, when, if regulated at all, it must be regulated by permanent legal provisions operating generally and impartially.- ^ A similar decision w^as made in Wisconsin,23 where, however, the ordinance discriminated in favor of certain kinds of processions. The theory upon which these decisions proceed is (Mther lluit a power of regulation delegated by the legislature must l)e exercised by the body in which it is vested and may not l)e further delegated by it, or that an ordinance which leaves everything to the circumstances of the individual case is in reality no reguhiliou and unreasonable by virtue of its loose- ness,2-i or that the micontrolled discretion gives opportunity for arbitrary discrimination and thus violates the i)rinciple of the equal protection of the laws.-^ Where the statute vests -•» Anderson v. Wellington, 40 been liclU unreasniiiiblc iiiul void K;m. 173, 2 L. R. A. 110. that every person who shall play a •Ji Chicago V. Trotter, 13G Til. 4.30. noisy instrnnient or sing or preach 'I'lif soundness of this decision ninst in any street without a previous III' doubted, since the issue of the written license from the Mayor shall l>crmit might well have been re- be fined, etc., as it woidd enable a garded as a ministerial act. Mayor In legalise a nuisance or pro- ^•■i Matter of Frazee, 03 Mich. 300. hibit a lawful act which was not a •-■•■'■ State e.\ rel. (Jiirrabad v. Der- nuisance, Munro v. Watson, 51 J. P. itig, 84 Wis. .-JSG. 060, 57 L. T. 366. •■:4 NewtoiB v. Bcjger, 143 Mass. ^r, Yick Wo v. Hopkins, 1 18 U. S. 598. So in England a bye-law has 356. § 644 UNKEGULATEI) DISCRKTIOX. (jtj9 the discretion directly in the administrative authority, there may also be an objection on the ground that the legislature has abdicated an authority which under the constitution it must exercise itself.-*^ §644. Unregulated discretion ; cases in which sustained.— There are, however, also decisions of a contrary tenor. Thus ordinances have been sustained, which without further speei- lication of conditions reciuire a permit for the erection of wooden buildings within the fire limits,-'^ or for the keeping of swine in a town,^* or for the establishment of a dairy stabh; in the city limits,^''* or for the beating of drums in the streets,"" or for the moving of a building through the streets,^i or even for the erection of any building, without further regulation.32 In South Carolina the Supreme Court declined to consider in a mandamus proceeding the constitutionality of a law giving the state board of agriculture power to grant or refuse licenses for the mining of phosphate, but intimated that the Four- teenth Amendment did not apply to the case.^'^ The Supreme Court of Massachusetts has held that the legislature may permit the use of public places for purposes of parades or public speaking upon such terms as it pleases, and may leave the permit to the discretion of the mayor or board of police; and this view has been confirmed by the United States Supreme Court. 3^ The decisions sustaining discretionary power without fur- ther regulation are based partly upon the free exercise of proprietary control, partly upon the theory that a power to prohibit includes the power to permit upon any terms deemed expedient, "For the legislature absolutely or conditionally to -'■' Noel V. People, 187 111. 587, .58 ao Ee Flaherty, 105 Cal. 558, J7 N. E. 616. L. R. A. 529. -" Hine v. New Haven, 40 Conn. 3i Wilson v. Eureka City, 173 U. 478; Ex parte Fiske, 72 Cal. 125, S, 32. (not presumed that power will be ^2 Commissioners of Easton v. exercised wantonly; impossible to es- Covey, 74 Md. 262. tablish a general rule beforehand) ; '-^'-^ Port Royal Mining Co. v. ITa- McCloskey v. Kreling, 76 Cal. 511. good, 30 S. C. 519, 3 L. R. A. 841. -s Quincy v. Kennard, 151 Mass. s* Commonwealth v. Plaisted, 148 563, 24 N. E. 860. Mass. 375, 2 L. E. A. 142; Coni- -9 St. Louis V. Fischer, 167 Mo. monwealth v. Davis, 162 Mass. 510; 654, 67 S. W. 872, Davis v. Massachusetts, 167 U. R. 43. (i7i) SPECIAL PRIVILEGES. § 644 forbid public speaking in a highway or public park is no more an infringement of the rights of the member of the public than for the owner of a private house to forbid it in his house. "When no proprietary right interferes the legislature may end the right of the public to enter upon the public place by putting an end to the dedication to public uses. So it may take the lesser step of limiting the public use to certain pur- poses. "^^ "The right to absolutely exclude all right to use necessarily includes the authority to determine under what circumstances such use may be availed of, as the greater powei- contains the lesser. "3c Neither of the two theories justifies a power of arbitrary discrimination where a matter is simply subject to regulation and not to prohibition, and this is recog- nised by the Supreme Court of ^Massachusetts.^" So also the Supreme Court of jMichigan, which in the Frazee case, long regarded as the leading case upon the point now under discussion, had held an unregulated discretion in the mayor to allow or disallow parades to be invalid, upholds a free discretion as to permitting or forbidding addresses on public places,=^s distinguishing the former case as one concerning the (luestion, "who may travel on a public highway," while the making of addresses in i)ublic places may be prohibited. The distinction thus emphasized between things Avhich are subject to prohibition, and things which are subject to regula- tion, seems plausible, and may serve to reconcile otherwise conflicting decisions.^^ Yet even as applied to the former, the doctrine propounded in .Massachusetts and Califo)-niii should, if possible, be taken to mean that the unregulated discretion must be exercised judicially, .md, if understood as sanctioning an arbitrary or uncontrollable discretion, should be rejected. There can bi" no donbl Ihal it is desirable to pro- tect the principle of equality wherever it is possible to do so. To deny the application of the ])rinciple to the use of public places for ])ublic s])eaking, or to acts which may be altogether l»rohibited, is not only unnecessary, l)ut s(>enis contrary to the si»ii-it of our institutions, and it needs no argument to show a.'. Coniiiionwwiltli v. Davis, 102 '^sT-dvo v. .Tnd^ro of Ret'onlor's Mass. niO. (Ji)urt ol' iJolmit (I'lu-laii), 1'JS :>» Duvis V. Massiicliusettfl, 167 U. Mich. 545, 55 L. i^ A. (518. S. ,i:i. •■"•Sec irarrisuii \. r<'u).lc, lol 111. ■17 Newton v. Relf;er, lUi Mjihh. App. 'JL'I, as to liceriHcs for linwliny 598. alleys. !5 (J45 CONSENT OF PEOPLE OF LOCALITY. fJ71 that ail uncontrolied i)0wc'r to grant or withliold privilt^gcs which might be accorded on equal terms, is open to tlie great- est abuses. § 645. Vote or consent of people of locality.— In some cases the discretion to allow or forbid the location of noxious estab- lishments, which is withheld from the administrative authori- ties, is committed to a vote of the people of the locality con- cerned. This has been upheld in Illinois with reference to places for the sale of liquor and with regard to livery stables,'*" and has been declared invalid in California with regard to public laundries,-*^ and in Missouri with regard to livery stables.-*- But in California and ^Missouri the qualified pro- hibition extended practically throughout the city, so that the vote of the citizens might have made a lawful business alto- gether impossible ; in Illinois it was confined to residence streets. It may therefore be said that the local legislative body may leave the discretion to allow or forbid to the people of the locality only where and in so far as it has the power to prohibit it altogether. The fact that it is the people who decide is accepted as a sufficient answer to the objection that this method involves both delegation of power and uncontrolled discretion. PEOFESSIONAL QUALIFICATION. §§646-650. § 646. Methods of ascertaining fitness.— Where an occupa- tion demands for its safe exercise competent knowledge, the right to pursue it should be granted equally to all who furnish satisfactory proof of such knowledge. There are two prin- cipal methods of ascertaining fitness: the requirement of a diploma of an institution giving the requisite instruction, and an examination by public authority. Not infrequently the fact of having practiced the occui)ation in question for a stated number of years is accepted as sufficient evidence of qualification, and still more commonly the requirement oper- ates prospectively only upon persons not already engaged in the occupation at the time the requirement is made.-*-"^ Assum- •»'> Swift V. People, 1G2 111. 534; -J^ St. Louis v. Ru.ssell, 116 Mo. Chicago V. Stratton, 162 111. 404, 248, 22 S. W. 470. 44 N. E. 853. *^ See below § 684 on question of 41 Ex parte Sing Lee, 96 Cal. 354. classification. 672 SPECIAL PRIVILEGES. § 647 ing that the freedom of occupation may be restricted in this manner,-*^ the exaction of a test of fitness does not create a special privilege or viohite the principle of the equal pro- tection of the laws, provided the qualification is obtainable by reasonable effort.^^ § 647. Discriminations in tests of fitness.— Unjust discrim- inations in the tests of fitness may, liowever, violate the prin- ciple of equality. It is therefore important to note that no statute makes the right to practice medicine dependent upon the recognition of some particular school of medicine.-**' Care is also generally taken to give the principal schools (honieo- l)athie and allopathic) representation upon the examining l)oard or boards ; but it was held that the exclusion of eclectic examiners is not in itself discrimination, unless it can be shown that applications for admission are improperly rejected.-*" In Kentucky it was said: "In a case where it was clear from the evidence that a discrimination had been made against a system of medicine we should not hesitate to hold that the board had exceeded its power. "-*^ From the necessity of the case, much must be left to the discretion of the examining or licensing authorities, not only in determining the qualifica- tion of the applicant, but also in determining what is a n>j)n- table institution or institution in good standing for the pur- pose of recognising its diploma;-"^ administrative action is here due process of law, and where an appeal is granted, it may lie to other administrative or executive authorities;^" but since a properly qualified person ought to he entitled to ad- mission to practice as a matter of right, there should be an ulliiiijitc rcniiHly in the eoni'ts against gross pai'tiality or abuse •14 §§ 492-497, supra. +« See § 113, supra. 4r. Physicians, Dent v. West Vir- '"Allopathic Slate Hoard of Aled- ginia, 129 U. S. 114; Ex parte Spin- ical Rxamincrs v. Fowler, ilO La. ney, 10 Nev. 323, 1875; druf^gists, Ann. 13.58, 24 South. Rep. 809. State V. Forcier, 65 N. H. 42; plum- <« Nelson v. State Board of hers, I'eople v. Warden, 144 N. Y. Health, 22 Ky. T>avv Reji. 438, 50 529; Singer v. Maryland, 72 iM.I. L. R. A. 383. See also Stale v. -1()4; State v. Gardner, 58 Oh. St. Gregory, 83 Mo. 123. .599, 51 N. E. 136; barbers. State v. ••"State ex rel. Coffey v. Chitten- Zeno, 79 Minn. 80, 48 L. R. A. SS ; .lea (Wis.), 88 X. W. 587. iiursoHlioers, iield unconstitutional in r.o r„ in Ohio to governor and al- lllinolH on a special ground, lies- tornoy-genc-al, Franrc v. State, 57 Hctte V. People, 193 HI. 334, 62 N. K. Oh. St. 1, 47 N. K. lotl. 215, .56 L. R. A. 558. § 648 SEPARATION OF I'OWKRS. (i7;j of discretion.' Tn accordance with this vii'w coiirls liavi' afforded relief by niandanms where the l)oai-d made refjuire- ments not prescribed by the statute,^ or left the deteriiiination of the repiitability of a school to a foreif>n body or n-fiisi'il to recognise a diploma after having recognised .m iiistitnlioii as reputable.-' § 648. Encroachment upon judicial power. — It has been held in Illinois that the legislature cannot prescribe conclusively the qualifications which will entitle a person to be admitted to the practice of the law, since the constitutional independence of the courts requires that they should judge for tln'mselves whether their practitioners are competent or not;* the main contention in this case concerned the mutual limitations be- tween two departments of the government, and not the limita- tions upon the government as such in favor of the liberty of the citizens; for the power to regulate the right to practice law was not questioned. In New York it has been held to fail within the legislative power.-"' § 649. Delegation of legislative power. — It has been held in Ohio that the i-ight to act as a steam engineer cannot be made to depend upon a license to be granted by an administra- tive officer if upon examination he find the applicant trust- w^orthy and competent, subject in case of refusal to appeal to a higher administrative officer.^' While the court dwells upon the absence of rules and the unlimited discretion of the officei-, it seems to base its decision upon the unconstitutionality of delegation of legislative power. If this is the controlling ele- ment, it Avould not have saved the statute if it had directed the examiners to frame rules by which they were to be guided in testing applicants; yet the power to frame such rules is not regarded as an unconstitutional delegation of legislative power in case of the civil service laws, and some rules are generally promulgated by medical and other examining boards. It is a sound constitutional principle that if the right to i)ursue an 1 This follows from the principlo •f State Board of Dental Examin- nf the separation of powers; a con- ers v. People, 123 111. i227. elusive determination by adminis- * Ee Day, 181 111. 7^. .14 N. K. trative authorities satisties the due 646, 50 L. R. A. 510. process required by the Fourteenth ^ In Re Cooper, 22 X. Y. 67. Amendment. Reetz v. Michigan, " Harmon v. State, (i^ Oli. St. 249, 188 U. S. 505. (>4 N. E. 117. 2 State V. Lutz, 1 36 Mo. 633. 43 074 SPECIAL PKIVILEGES. §650 occupation can be made to depend upon a test of qualification that test ought to be defined by general rules, but it is hardly necessary that every detail of the rules should emanate from the legislature directly. The mere requirement of trustworthi- ness and competence is not a definition of a test. It follows that there must be a specification of the course of study which the applicant must pursue, or of branches of knoAvledge with which he must be familiar. A test Avhich is vague and unde- fined is liable to abuse and oppression, but is also the easiest if liberally administered, and it is interesting to note that the stricter constitutional principle involves stricter and therefore possibly more burdensome requirements. It may be men- tioned that the practice condemned in Ohio is sanctioned by the federal legislation regarding the licensing of captains' mates, engineers and pilots." § 650. Privileges accompanying professional license.— A license resting upon professional (lualification cannot be made the basis for the granting of privileges which have no connec- tion with such qualification. Thus it is plain that licensed plumbers could not be given an exclusive right to sell .toilet or gas fixtures. Upon a somewlmt similar ground it has been held in ^Minnesota and Illinois that registered pharmacists cannot be given the sole right to sell patent and proprietary medicines.^ The case is, hoAvever, different from the one be- fore suggested, in that the sale of patent medicines may be made a subject of police regulation and might be confined to persons properly qualified. The decisions cited, therefore, rely maiidy upon the absence in the statutes of any provision for examination or analysis of the patent medicines sold, the ]>har- inncist being, on the contrary, expressly exempted from lia- l)ility for theii- unsoundness. ;iii(i lliey hold the measure unten- ;il)le ;is ;i polii-e reguhiruin hccjiuse failing to give adequate ])rotection.'* It should, howevei-, he observed that statutes requiring professional (|ualification as a i-ule do not prescribe special rules for the praetiee of lh(> profession or business, iioi- inerease 1lie eonimon law liahilify ("or lack of skill, so that Itic license iiiipoiis neitlKM- sjieeial (l;ily'" nor si->ecial regnln- 7 U. S. K. St. 44.39-4442. '"So :i pliysicijiii is not ro()uirctl « State V. Doiijildson. 41 Minn. 74, to render protVssioniil sorvieos. Hnr- 42 N, W. 7S1 ; Noel v. I'coi)lc, 1S7 ley v. IvIdin^ficM, I.'iG Ind. 41(i, 59 III. nm, .-JS N. E. (iir;. N. E. 10.58, .-5.3 E. K. A. IS.'j. § 149, sitpra. §651 QUALIFICATION OF (II. \i;.\ii'i;i;. tj75 tiori ; and this is justiliabK', since the requirement of a license is not intended as a privilege, hut as a common restraint, and tin- law may regard the possession of the re(iuired (lualilicaticjn as sufficient guaranty that it will be used for the benefit of tin- |)ublic. Upon a somcAvhat similai- j)rincii)lr the law may en- trust the sale of liquors to druggists, without special responsi- bilities which could not be met by other persons as well.'' QUALIFECATION OF CHARACTER. §§ 651-653. § 651. Administrative determination. — In some occupations the interests of safety, health or morals are held to justify the requirement of good character, so that this qualification does not constitute a special privilege.^- The liquor business is typical of this class, but the requirement is also made with regard to the practice of medicine and law,^'^ and in European countries is made to apply to teachers, dancing masters, keep- ers of bathing establishments, pawnbrokers,'^ etc. The deter- mination of character does not admit of equally objective tests as that of knowledge, and the statute can indicate the quali- lication hardly otherwise than by speaking of suitable persons or persons of good character, leaving the determination in individual cases to the judgment of licensing authorities. Their discretion under such statutes, while a judicial one, is not easily controllable, and it has been held in Michigan that all disqualifications debarring from the right to engage in a lawful business must be specific, and that the charge of bad character is so vague that the applicant cannot meet it.''' The same court, however, in a later case,'^ held that the suitability of a place for the sale of liquor may be left to the discre- tion of the municipal authorities, and intimated that the ques- tion of fitness of the person might be delegated in like man- ner. This decision seems in effect to overrule Robison v. Miner and was dissented from by two of the judges of the 11 Commonwealth v. Fowlor, 96 admits that the Icgishitiiro may cro- Ky. 166. ate While in this particular busi- ness the history of legislation showed that a discretionary power was intended to be conferred, the court went so far as to hold that the word license by irresistil)le implication in- volved a discretion to refuse, — a position hardly sustainable.^' The court expressed itself ver}- decidedly in favor of admin- istrative discretion, and left the question open, how an abuse of that discretion should be dealt with. The opinion says : "The practice of nearly a century in this state has taught us that there is little to fear from an abuse of this power, for during that time we have yet to learn of an instance where it has been perverted for improper purposes, or excited public condemnation or disapproval. In the government of the affairs of a great municipality many powers must necessarily be con- fided to the discretion of its administrative ofificers, and it can he productive only of mischief in the treatment of such ques- tions to substitute the discretion of strangers to the power, in place of that of the officers best acquainted with the necessitii's of the case, and to whom the legislature has specially confided their exercise. Whether any remedy is afforded by the law for an abuse of such discretion it is not now necessary to in- quire, as that question cannot be presented on an application for a mandamus." The same view has been taken of licenses for places of amusement. 22 The very liberal view thus expressed by the Court of Appeals 20 People V. Grant, 126 N. Y. 473, also upholds a provision of the 27 N. E. 964. Sanitary Code of tlie City of New -1 The same construction is placed York whereby the right to sell milk on the term license in North Caro- ii:. made to depend upon a permit of lina. Muller v. Buncombe County, the Board of TTenlth subject to the 89 N. C. 171. conditions thereof, although these -- Armstrong v. Murphy, 65 N. Y. conditions are not defined in the Appl. Div. 123; 72 N. Y. Suppl. 473. Code; however, the question of the The New York Court of Appeals validity of these conditions was held 678 ' SPECIAL PETVILEGES. § 653 of New York with regard to administrative discretion are in marked contrast to the sonnd tendency of legislative policy as manifested in the Liquor Tax Law of 1896. It is not, how- ever, to be assumed that no relief Avould be afforded, if an arbitrary exercise of discretion could be shown. The liquor business also being one which may be entirely prohibited, the issue of a license may be made to depend upon the consent of adjoining or neighboring owners.-^ § 653. Administrative discretion as regards business intrin- sically harmless. — Where a business is intrinsically harmless, the law, it seems, cannot leave it to the discretion of admin- istrative officers to determine what persons are proper to engage in it. Such a power was therefore held unconstitu- tional with regard to the right to engage in a "temporary or transient business. "^^ The act did not indicate in what manner the temporary or transient business was dangerous or objectionable, and moreover left it to the mayor to license such persons as he found to be proper persons to engage in such business. This was held to confer an unrestrained dis- cretion. In Vermont a similar statute was sustained on the ground that the business, in the judgment of the legislature, offered special opportunities for fraud, and that the discretion was intended to be exercised judicially, although its fair exer- cise was not controllable by mandamus. With reference to the case of State v. Conlon, just cited, the court said: "Had the (yonnecticut statute, like ours, defined 'temporary or transient l)nsiness,' granted no exclusive privileges to any persons of the class of transients, or referred the granting of licenses to the legal discretion, instead of the mere ca])ric(^ of the local authorities, possibly it might have been held constitutional. "^^ JUDICIAL CONTROL. §§ 654, 655. § 654. Judicial character of discretion.— Considering the extent to wliidi unregulated discretion oi" local or adminis- tr;i1iv(' anUiofilics in llie grant or refusal of discriminative not to l)c iiropcrly hcforo tlic court. R. 86; Swift v. People, Kii: III. r^M. People V. Vjindecjirr, 175 N. Y. 440, Such consent may then give a right 67 N. E. 9L3. The opinion dwells to the issue of the license. Harrison u|)on the necessity of giving to the v. People, 105 111. 466, 63 N. E. 191. police jxiwcr in a large city a liberal -•' State v. Conlon, 65 Conn. 478. interpretation. -f" State v. Harrington, 68 Vt. 622, ■--a Crowley v. Christenson, i:?7 TT. M L. Tl. A. 100. § 655 JUDICIAL DISCRETION. ' 679 licenses is iipiield as legal, it is most impoi-taiit tiiat tlic dis- cretion shall in every ease be a judicial and not an arbitrary discretion. Thus an early law writer says: "Where any- thing is left to any person to he done according to his discre- tion the law intends it must be done with a sound discretion and according to laAv, and the Court of King's Bench hath a power to redress things that are otherwise done notwith- standing they are left to the discretion of those that do them ; and thx)ugh there be a latitude of discretion given to one, yet he is circumscribed that what he does be necessary and convenient, without which no liberty can defend it. "^^ In the absence of statutory specification, the nature of the sub- ject-matter will as a rule sufficiently indicate the considerations upon which the discretion is to be exercised. The honest exer- cise of such discretion may then be made conclusive ; for where the question is one of expediency, and the determination must be based upon probabilities rather than upon facts, adminis- trative action constitutes due process of law, and a review of the courts is not a matter of constitutional right.-" Where there is either a refusal to hear an application for a license, or a violation of jurisdictional or procedural limita- tions, the common law writs afford relief.-*^ Where there is a hearing in due form, it must be difficult to prove an abuse of discretion, but grossly arbitrary and oppres- sive action would constitute official misfeasance in office, and redress would be given by the courts.-^ An unregulated ad- ministrative (and probably also municipal) discretion is there- fore not, like a similar legislative discretion, entirely beyond judicial control. § 655. Federal protection against arbitrary discretion. — An undefined official discretion in the matter of granting licenses against the arbitrary exercise of which the state should afford no relief, might be held to violnte the Fourteenth Amendment. While the United States Suprejne Court has 26 Tomlins Law Dictionary "Dis- D. C. 99;. Gross' License, IGl Pa, cretion." 344; §§ 20S-210, supra. 27 See cases cited in following sec- 29 Rex v. Young & Pitts. I Rurr. tion; also Giles' Case, 2 Stra. 881, 557; Zanone v. Mount! City, 103 111. Ex parte Yeager, 11 Gratt. 655. 552; St. Louis v. ^leyrose Lamp 28 United States v. Douglass, 19 Mfg. Co., 139 Mo. 560. 680 SPECIAL PRIVILEGES. § 655 repeatedly sustained the vesting of unregulated discretion in administrative authorities as not being contrary to the equal protection of the laws,^*^ yet these decisions were rendered in cases in which it was not charged that the discretion was arbi- trarily or oppressively exercised. The}^ are, therefore, quite compatible with the assumption that every administrative dis- cretion must by construction at least be a judicial discretion to be reasonably and impartially exercised. The case of Yick Wo V. Hopkins^i shows that the prohibition of the Fourteenth Amendment is adequate to prevent the delegation of adminis- trative powers calculated to produce oppression and discrim- ination. In the case of Gundling v. Chicago,^- the Supreme Court clearly indicates that its attitude towards unregulated administrative powers will be determined by the spirit in which the discretion is exercised. "The ordinance in question in that case [Yick Wo v. Hopkins] was held to be illegal and in violation of the Fourteenth Amendment, because, with refer- ence to the subject upon which it touched, it conferred upon the municipal authorities arbitrary power, at their will and with- out regard to discretion in the legal sense of the term, to give or withhold consent as to persons or phices for carrying on a laundry, with (without?) reference to the competency of the persons applying or the propriety of the place selected. It was also held that there was a clear and intentional discrim- ination made against the Chinese in the operation of the ordi- nance, which discrimination was founded upon the difference of race and was wholly arbitrary and unjust. It appeared that both petitioners, Avho were engaged in the laundry business, were Chinese and had complied with every requisite deemed by the law, or by the public officers charged with its admin- istration, necessary for the protection of neighboring prop- erty from fire or as a protection against injury to the public hcnltli. nnd yot the supervisors, for no reason otluM" than dis- (•liiiiiiiMtioii ;i gainst the Chinese, refused to grant the licenses to the jx'titioners and to some 200 other Chinese subjects, while grnnting them to eighty people who -were not such subjects ;mi(I were woi'k'ing under precisely flic sniiic conditions. Such ;iri ordinaTicc so executed was lidd void li\- Ibis coui't. * * * •■!" Davis V. MiisHaclniHottH, UIT V. •"•i US V. S. .■(.')(;. !-'.. 4.T; WilHoii v. lOiiroka City, 17.". ■'••; 177 U. S. 183. U. S. .'!L' ; (iiiiiiHiii^ \'. <'liic;ij^(i, 177 u. s. is:',. §656 MOiXOl'OLlHS. • yyi The ordinance in question here does not j^raiit to tlie mayor arbitrary power such as is described in the above mentioned laundry case. * * * In the case at bar the license is to be issued if the mayor is satisfied that the person applying is of good character and reputation and a suitable person to be entrusted with the sale of cigarettes, provided such ai)i)licant will file a bond, as stated in the ordinance, as a security that he will faithfuU}^ observe and obey the laws of the state and the ordinances of the city with reference to cigarettes. Th'* mayor is bound to grant a license to every person fulfilling these conditions, and thus the fact of fitness is to ])e submitted to the judgment of the officer, and it calls for the exercise of a discretion of a judicial nature by him." Under this decision it would not seem to make any difference whether the discretion is delegated to administrative officers, or reserved to be exercised from ease to case by the municipal legislative authority. B. MONOPOLIES. §§ 656-681. § 656. Historical remarks. — The customs of English cities and boroughs and of companies and fellowships, concerning trade and commerce, resting upon prescription or ' confirmed or granted by charter, were to a great extent in the nature of exclusive privileges or monopolies. Apart from these, grants of monopolies by ro^^al letters patent became common during the reign of Queen Elizabeth, especially with regard to the following classes of rights: rights of manufacture Avhere new processes had been discovered or introduced ; publishing rights; rights to trade in newly opened channels of commerce; rights affecting the royal prerogative (exportation of eoin and foreign exchange); sole rights to manufacture s are "•■' Durey v. Allen, 11 Cuke Kcji. lii(li:i * 'omiciny \. Siiinlys, 10 St. 84. 'I'r. :<71. Uiil ill ,[;iiiiKiry, t694, the '<* 21 .Tm<;. c. .3. House of Commons resolved "ili.il ;>'• Tiic (iii(!stion of monopolies all the subjects of England lia\c was agitated toward the eml of the ecjiial rights to trade to the Kast seventeenth (century in coiiiiecl ion Indies unless prohihiteij l)y Act of with the East India Company. The Parliament," and the first Parlia- riival prerogative Id grant exclusive nientary charter to the company was traoniHvillo City Ry. Co. v. Citizens Street R. Co., 1-7 Ind. 36!t, LoniHviiic. S Hnsli (71 Ky.) 415. 8 T.. R. A. 539. n" Railroad Ijaw, § 59; People v. ^ (i62 FRAXaUSES. ' 085 contended that the state is boiuul to keep llie inevitable juonop- olies connected with the use oi' highways in its own hands, and the general practice has been to leave tiieir exploitation to private enterprise. A conspicuous exception is to be found in the matter of canals, which have been built by states as well as by private corporations. River improvements under- taken by public authority have generally been treated as pul)- lic works, not managed for profit. Irrespective of any federal (|uestions of interstate commerce, the state, mider the doctrine enunciated in Illinois Central R. Co. v. Illinois (1), cannot bargain away the control of a navigable river which consti- tutes a natural highway :^^ but a different doctrine may apply where a river is not naturally navigable. In Elaine a grant j 662. Bank notes. — The issue of bank notes to circulate as money is a function requiring such extensive safeguards for the protection of the public that it has never been regarded as a matter of common right, but as a privilege to be granted by the state.^^ There is no logical reason why it should not be on the same terms open to all, and this is practically the law luuler the present American national bank system.^"^ But as long as a positive act of the state is necessar}'^ to authori.se the issue, it follows that in the absence of prohibitions against special legislation the authorisation may be granted to one *i 146 U. S. 387. « Briscoe v. Bank of Common- 42 Moor V. Veazie, 32 Me. 343. wealth of Kentucky, 11 Pet. 257; •»■■' MeReynolds v. Smallhousc, 71 Davidson v. Lanier, 4 Wall. 447. Ky. 447; Commissioners etc. v. ■«« U. S. Rev. Stat. Title 62, (heen River Co., 79 Ky. 73. chap. 2. 4+ Sands v. IManistee River Ini- I movement Co., 123 U. S. 288. 686 SPECIAL PRIVILEGES. § 663 bank or to a limited number of banks, and thus constitute a monopoly for the time being. In this respect the note privi- lege resembles other franchises. MONOPOLIES TO SECURE THE BENEFIT OF ORIGINAL PRO- DUCTION (AUTHOR'S AND INWENTOR'S RIGHTS). §§ 663-665. § 663. Equity of exclusive right.— The substance of pat- ent and copyright is the sole right to reproduce and exploit commercially ideas which have been embodied in concrete form. Both, therefore, strictly speaking, constitute monopolies. They ditfer from other monopolies in that they do not violate the principle of equality, since the author or inventor has created the field of profitable activity Avhich the law reserves to him. The exclusion of others, while under a purely mechanical con- ception of rights of property an interference with their natural liberty, is dictated by strong considerations of equity which all civilised sj^stems of law have come to recognise. Con- ceivably these rights might have been developed as forms of property ("founded on labor and invention." as Blackstone says^") by the common law, as the exclusive right'to use words and symbols in connection with merchandise has been evolved by the courts under the name of trade-marks. In fact, it was formerly believed by eminent .judges that at common law the author of a literary composition even after the first publica- tion retained the right to reprint and publish the same in per- jietuity to the exclusion of all others,"''' a doctrine which was denied in America,-*^ and seems to have been abandoned in England.^" As regards patents, they were, as the name im- plies, originally created by royal letters patent by virtue of the Prerogative, and this practice received parliamentary sanc- tion when the statute against monopolies provided thai it slKMild not exlciid to letters patent in favor of liie ti'iie ;in(l first inventor for the sole working or making of a new luann- f;ii-tnre. Author's i-ights were secni-ed by statute in 1709.' S 664. Federal legislation. — The e(.nstitution oi" the United ►States sanctions lliis elnss of nKniopolies by empowering Con- •«T Coinmontaric-H II, -lOr). r-" .loilreys v. Booscy, 4 Jl. L. Cas. '« I)(iTi:iI.ls(.ii V. Beckct, I Rurr. Sl.'j, ]8.'54; Reade v. Conquest, 9 C. L'40H, 1774; Millar v. Taylcr. I P.urr. B. (N. S.) 755, 1861. -'303. 1 ,S Aii.K-. ell. 21. 4»Wheutou V. Petcra, S Pc^t. 500. § GG5 AUTllOliS' AND JNVEXTOKS' RIGHTS. 687 gress "to promote the progress of science and useful arts, by securing for limited times to authors and inventors the ex- elusive right to their respective writings and discoveries."- The legislation of Congress under this clause recognises two classes or rights: patents and copyrights. The patent right consists in the exclusive right to make, use and vend any new and useful art, machine, manufacture or composition of mat- ter,2 or any new and original design, impression, ornament, shape or configuration of any article of manufacture ;■* the copy- right in the sole liberty of printing, reprinting, publishing and vending, or completing, copying, executing and finishing, any book, map, chart, dramatic or musical composition, engraving, cut, print, photograph, painting, draAving, chromo, statue or models for works of the fine arts, or of publicly performing and representing any dramatic composition.-'' This legislation evidently does not cover all novel ideas, in- ventions, discoveries or creations, the sole exploitation of which would be profitable (e. g. architects' designs, medical discoveries, improvements in methods of business), and it has not been decided whether or to what extent the states in the absence of congressional legislation or in cases not covered by the constitutional clause may recognise rights of similar char- acter, except that trade-marks are generally protected as com- mon law rights by the states, and cannot be placed under exclusive federal control.*' The difficulty of determining ques- tions of novelty, priority and identity militates against a very great enlargement of this class of rights, and would, if it were attempted, lead to many of the evils of monopolies. § 665. Monopoly character.— The monopoly character of patent and copyright is recognised in the laws of all countries by granting the respective rights for limited periods only : under foreign systems also by making it a duty to exercise the privilege for the public benefit. Thus in England the Board of Trade may order the patentee to grant licenses on such terms as the board may deem just,*^ and if a book which is of importance to the public is out of print, and the holder of the copyright, after the death of the author, refuses to reprint it, the Judicial Committee of the Privy Council may upon petition 2Constn. I,, 8. 3 Rev. Stat. § 4884, 4886. 4 § 4929. 5 § 4952. « Trade-Mark Cases, 100 U. S. S-J. 7 § 22 Patents Act, 1883. ijSS SPECIAL PRIVILEGES. § 666 of another person, grant him a license to reprint.^ Similar pro- visions would undoubtedly be within the power of Congress, and it may be mentioned that before the establishment of the federal constitution an act of New York required authors to furnish their works at reasonable prices.^ MONOPOLIES AGAINST COMMON RIGHT. §§ 666-C73. § 666. State monopolies.— Monopolies which are justified neither by the purpose of securing the fruits of invention or authorship, nor by the impossibility of granting certain priv- ileges indiscriminately to all alike, are established either as measures of revenue and finance, or for the encouragement and support of undertakings needed by the public, or to restrict or supervise a business afilecting public safety or morals. The monopoly may be exercised either by the state itself or one of its subordinate divisions, or may be granted to a private individual or corporation. The great monopolies of European states (tobacco, matches, formerly salt), are financial in character, the lottery monop- olies belong to the third class, while the post office monopoly is primarily an institution for the public benefit which must exclude competition from its profitable business in order to carry on the unprofitable business. The coinage of money is an authoritative prerogative essential to the authentication of the quality of legal tender, and thereby differs from ordinary monopolies. State monopolies are so uncommon in this country that their constitutionality has not been much discussed. The monop- olistic feature of the post office has never been questioned.'" The monopoly of the liquor traffic established b}^ the South Carolina dispensary act was first declared unconstitutional,^^ 8 Copyright Act 1842, § 5. cannot be prevented if :\ ]>romiscu- '■' 1786, 1 Greenl. 275. ous use of transmitting or taking up i"U. S. Rev. Stat. § 3982 et seq. of foreign Ictlers and packcls should In a royal grant of the office of be sufrcrod. " Cromwell spoke of the postmaster to foreign parts (July Post Office as the best means to dis- 19, 1632, XIX Rymcr's Foedera cover and prevent dangorous and SS.^) the monopoly is justified by the v*icked designs against tlic common- considcratinn "liow mndi it imports wealth. to the state of the King and this n Mi-('ulloiigh v. Hrown, 41 S. C. realm that the secrets thereof be not 220, 23 L, R. A. 110. disclosed to foreign nntions, which § Gtj7 STATE AND MUNICIPAL MONOPOLIES. 689 but lat('r oil uphold as a valid measure of police control of the traffic in an article dangerous to the public welfare, it bein^i: at the same time admitted tliat the monoi)olisin|i^ of an ordinary article of commerce would be unconstitutional.'- Where it is held under special constitutional provisions that the state may not engage in an ordinary business,' ^ a state monopoly would thereby likewise be excluded; and so where it is held that a municipal corporation may not be authorised to assume ordinary economic functions (like the supply of fuel), a munici- pal monopoly would be impossible.'^ $5 667. Municipal monopolies.— If a state monopoly is valid, a municipal monopoly may, it seems, be authorised by legisla- tion; the validity of municipal monopolies therefore resolves itself into a question of delegated powers. The question has arisen chiefly with regard to market and slaughter-house mo- nopolies. Market monopolies have been upheld in a number of cases, especially in Southern states;''^ in Wisconsin a power to direct the location and management of slaughter-houses has been held to sanction the establishment of a municipal slaugh- ter-house monopoly;^*' while in Illinois a monopol}^ has been held illegal where the power was merely to establish a market.'" It does not appear that the validity of a municipal market monopoly expressly authorised by the legislature has ever been denied ; however, an express authorisation to prohibit private markets is not usual.^'* The cases sustaining the nui- nicipal monopoly hold that market regulations must be im- partial and allow to all an equal opportunity to sell. There- fore an ordinance allowing sales only at market stalls is invalid where the market does not furnish accommodations to 12 state V. Aiken, 42 S. C. 222, 26 St. Rep. 328. For earlier authori- L. E. A. 345. ties see Dillon Municipal Corpora- is Rippe V. Becker, 56 Minn. 100, tions, § 386. 23 L. R. A. 857. ^"^ Milwaukee v. Gross, 21 Wis. 14 Opinion of Justices, 155 Mass. 241, 91 Am. Dee. 472, 1S66. 598, 30 N. E. 1142; Re Municipal i" Caldwell v. Alton, 33 111. 416. Fuel Plants, (Mass.), 66 N. E. 25, is In Louisiana cities are au- 1903. thorised by statute to prescribe the 15 Newson v. Galveston, 76 Tex. distance at which private markets 559; Jacksonville V. Ledwith, 26 Fla. may be located from public mar- 163; State v. Sarradat, 46 La. Ann. kets. New Orleans v. Faber, 105 La. 700, 24 L. E. A. 584; Ex parte 208. 53 L. R. A. 165; Natal v. Louis- Byrd, 84 Ala. 17, 4 So. 397, 5 Am. iana, 139 U. S. 62L 44 G90 SPECIAL PKIVILEGES. § 668 persons desiring to sell their produce, and they would be com- l)elled to sell to the tenants of stalls in order to dispose of their goods.^'' .Market monopolies are not common in this country and other municipal monopolies hardly exist.20 With regard to public monopolies generally it may be said that since in a measure all citizens are partners, the constitutional objec- tions against monopolies draAvn from the principle of equality do not apply. § 668. Private monopolies against common right— Ferries. — The most common and conspicuous kind of a private monop- oly is that of keeping a ferry across a river. In the laws of most of the states provisions are to be found requiring a license for setting up a ferry, and prohibiting the carrying of persons for hire across a river Avithin a given distance from an established ferry. It is a commonly accepted doctrine that this is not against common right, since immemorially the right to keep a ferry has been regarded as a franchise.^^ Hale in his treatise de jure maris, chapter 2, says, "the King by an ancient right of prerogative hath had a certain interest in many fresh rivers * * * 1st, a right of franchise or priv- ilege that no man may set up a common ferry for all pas- sengers, Avithout a prescription time out of mind, or a charter from the King. He may make a ferry for his OAvn use or the use of his family, but not for the common use of all the King's subjects passing that Avay ; because it doth in consequence tend to a common charge, and is become a thing of public interest and use, and every man for his passage pays a toll, which is a common charge, and every ferry ought to be under a public regulation, viz: that it keeps attendance at due times, keep a boat in due order, and take but reasonable toll." And lilackstone III 219 says: "Where there is a ferry by prc- scriplion, llx' oavikt is IxMimi In keep it ahvays in repair and readiness, for lln- ease ol" all tlir King's subjects; otherwise he may be grievously amerced ; it would be therefore extremely '" Jhi{,'li<'s V. Dt'tniit, TH Midi. 471, where .siicli :i iiKnuipoly \v;is lield .'574, 4 L. K. A. 863. ii'it tn 1"^ forbidden by an express 20 Municipal Aflfairs, Dec, 1898, eoiistitiitional declarnfion :in;aiiist Miln R. Maltbie Municipal Fiinc- monopolies; also Plumb v. Christie, lions. Ah to loeal liquor monop- 10;> (!a. 686. olics similar to the South CMn.liiia -' M is so treated by \ho Tfevised State monopoly see Ouy v. Cumber- I.iiws of Massachusetis of l()49. land Co. r'ommissioners, 122 N. C. §668 ri;iv'K'ii-:s. ,;m hard if a new ferry were siiHVrcd to share his profits which does not also share his burden," As a matter of hj^ie and I)riiieii)k', these arguments are not eonchisive. 'Die ferry fran- chise does not conllne itself to the connection bi-tween two highways on opposite sides of a river, the landing facilities on which cannot be matter of indiscriminate common right; but it forbids the running of a ferry between two i)oints privately owned, 2- although this can be done witliout asking any special favor at the hands of the public ; for a fei-i-y does not encuiiilxT a river or affect navigation as a bridge does, and the right to navigate a public river is not a special privilege. The right to exact toll cannot be said to be the privilege constituting the franchise, for it would not legalise an unauthorised ferry, if the keeper were to make a bargain with each passenger regard- ing his fare, and while anybody may keep a boat for crossing from his land for himself and his family ,2 3 it has been held that numerous persons may not combine to establish a ferry for their joint use.^^ The gist of illegality at common law is the injury done to the established ferry by diverting its business, and the true consideration of public policy underly- ing the franchise is that an undertaking beneficial to the public should be encouraged by keeping off competition and thereby securing a reasonable profit. Such a consideration may per- haps legitimately induce the legislature to withhold the grant of a competing franchise where legislative authorisation is in Ihe nature of things indispensable, as in the ease of a bridge monopoly, but it is not a sufficient justification for prohibiting the exercise of a common right. For to what useful business could not the same argument be made to apply? Ai)othecaries were formerly encouraged in a similar way, and therefore l)harmacies are in Germany to the present day monopolies. In reason the ferry monopoly stands on no better foundation ; but since the right has always been regarded as a franchise. the prohibition of private ferries is not considered to be an interference with common right, and so Die exclusive privilege 22 Young V. Harrison, 6 Ga. 130; Cal. 236; Greer v. Hangabook, 47 School Trustees V. Tatman, 13 III. Ga. 282 (statutory provision) ; Alox- l;7; Stark v. Miller, 3 Mo. 470; andria Ferry ("o. v. Wisdi, 73 Mo. Murray v. Menefee, 20 Ark. .561. (inr). 39 Am. Kep. .^)3.-). •■;:' Trent V. Carteraville Bridge Go.. •■;■* Warren v. Tanner. 21 Ky. Ti. 11 Leigh 544; Hanson v. Webb, 3 \U']k 1678, 40 L. K. A. 248. 692 SPECIAL PEIYILEGES. § 669 is uniformly upheld.^''' even in states where monopolies are expressly forbidden.-*^ In North Dakota, the constitution of which forbids all special privileges and immunities which upon the same terms shall not be granted to all citizens, the court justifies these privileges on the grovmd that public opinion has never crystallised against grants of exclusive ferry franchises.^" In Missouri, however, it has been intimated that under the constitution of 1875 the grant of an exclusive ferry privilege might be invalid.-* § 669. Monopoly as a means of police control— Slaughter- house cases. — It may be argued that if the state or a municipal- ity may itself monopolise a business dangerous to the health or morals of the community, it should be allowed to employ a private agency for the same purpose, if more economical, and thus entrust the management of the monopolised business to an individual or a corporation. The monopol}' Avottld then be an instrument of the police power. This view was taken by the Supreme Court of the United States of the slaughter-house monopoly in the City of New Orleans, Avliich upon the fullest discussion was sustained as not contravening the Fourteenth Amendment;-'' and while in a later case^" it was doubted whether that particular monopoly was in reality granted for the preservation of the i)ublie health, the principle of the de- cision has not been overruled. The decision in the Slaughter-House Cases is not binding 25 McGowan v. Stark ; 1 Nott & 27 Patterson v. Wollman, 5 N. D. McC, S. C. 387, 9 Am. Dec. 712, 608. 1818; Mills v. County of St. Clair, •■Js Carroll v. Campbell, 108 Mo. 4 111. 53, S IIow. 5(59; Stark v. 550. The grant of a ferry franchise Miller, 3 Mo. 470, 1S34; Norris v. is not in itself exclusive of other ]''armer8' Teamsters Co., 6 Cal. 590; rompcting grants. Fall v. Sutter McRoberts v. Washbiirne, 10 Minn. Co., 21 Cal. 237. 23; Sullivan v. Lafayette Co. Sui>or- In Germany ferry privileges have visors, 58 Miss, 790 ; Prosser v. Wa- been largely abolished ; Meyer Ver pello Co., 18 lo. 327; Douglas' Ap- waltungsrecht I, p. 554, ]ir';il, 118 Pa. St. 65; Mayor etc. v. -'" Sla\ight(-r House Cases, 16 Wall. Slarin, 106 N. Y. 1 ; Nixson v. Reed, .36, LS72; State v, Fagan, 22 La, 8 S. D. 507, .32 L. R. A. 315; and Ann. 545. authorities fited 12 A. & E. Cyelop. -t" New Orleans Gas Light Co. v. of Law, 2 cdn. j). 1090, note 2. Louisiana Light etc. Co., 115 U. S. •-'■• Broadway etc. Ferry Co. v. (;50. Hankf-y, 31 Md. 346; Toll Bridge Co. v. Flowers, 110 N. C. 381, 1892. §670 MOXOPOT.IES AdAlNST ( u.M.MOX HKUIT. -enerallv, thouirh a license may be required. ^^ § 671. Power over monopolised business.— The question of the validity of delegated monopolies against common right cannot be regarded as settled, but as a matter of legislative practice the tendency seems against them. If allowed, it can be only upon condition that in employing the private agency the state or municipality does not surrender its control or al- low the private management to be made an instrument of op- pression. These qualifications were recognised in the grant of the New Orleans slaughter-house monopoly, which subjected the business to police regulations, limited its charges, and se- cured equal service to all. It should also be observed that the slaughter-house monopoly was held by the Supreme Court to be revocable by the legislature before the expiration of its term.'*" ii 672. Restriction of numbers.— If tlie two main objections to a monopoly are that they prevent free competition and shut out the mass of citizens from certain occupations, it is only a diil'erence of degree whether the right to cai'ry on the business is confined to one or to a circumscribed number or to a specified class. It has, however, been held in Arkansas that the constitutional provision against monopolies has no application to a restriction of numbers in a business dangerous to till' public welfare,-"*" and the Suprc^me Court of Massachu- setts has said that the prohibition of exclusive privileges is not violated where the exclusion is merely the collateral and ineideiilal clVect of provisions enacted solely with a view to secure the Welfare of the connnunity.'''* Where, however, the constitution c.\|)ressly provides that the legislature shall not 1,'rant to any citizen or class of citizens privileges or immunities which upon the same terms shall not equally belong to all citi- zens, it lias h.cii licl.l, n|)on very full consideration, that a only to miisanccH /*rr sr, in iior v. W. 869; sec also Chieafjo v. Riimpf, KoHH, 00 \. W. son, r,7 L. K. a. 89.') . 45 Til. 00. HiavenK'T MonoiKilioH exist in a few •'•'Butchers' Union Co. v. Cres- othiT i-ificH; HOC" Clwipin \hniifip!il cent City Co., Ill V. S. 746; see § Siinitatir.n, p. 601 -O'l:}. 679, ivfrn. ^r- Matter of l.owp, r>4 Kans. 7r)7, -t Ex parte Levy, 43 Ark. 42. 27 li. K. A. .".4.''); State v. Tlill, 126 •'« Commonwealth v. Blackington, N. ('. li:»t. .^O L. M. A. 47.T; I lor v. 24 Pick. 3.'i2 ; Decie v. Brown, 167 Rofw (Neb.), •'')7 T.. R. A. 89.1, 90 N. Mass. 290, 45 N. E. 765. § 673 KESTRICTIOX OF NUxMBEKS. (395 liquor license may not be refused simply because a sufficient number have already been granted.'"' In England also it has been held that an absolute limitation of numbers is incon- sistent with the right which each applicant has to the exercise of judicial discretion by the licensing authorities in his par- ticular case.'^^' The restriction of licenses in point of number is a not un- common feature of liquor legislation, so especially in IMassa- chusetts (not more than one to each 1000 inhabitants, in Bos- ton one to each 500). Practically the same result follows where public need is one of the controlling factors in granting or refusing licenses, or where excessive number is a good -ground of refusal.'*^ Where numbers are restricted, some approach to equality may be secured by provisions for fair competition in the matter of application, to avoid favoritism. But where a discrimination is made among applicants of ecjual merit, and numbers are limited, there is, after all, something' in the nature of a monopoly, and the constitutional principle against exclusive privileges suffers an exception on the ground of public safety or morals. § 673. Resulting privileges.— It remains to consider certain statutory provisions which, while not intended to grant mo- nopolies, have incidentally the effect of creating exclusive privileges. 1. An act of Iowa prohibited the sale of products of pe- troleum for illuminating purposes which will emit combustible vapor at a temperature of less than 105 degrees F., except the lighter products of petroleum when used in the Welsbach lamp. The act was declared unconstitutional on the ground that it conferred an exclusive privilege upon the manufacturers of that lamp.^- This decision is based upon the important prin- 39 Ex parte Levy, 43 Ark. 4^. prescribing the kiud of lights and 40 Eeg. V. Walsall Justices, 3 C. L. lamps to be employed. An electric K. 100. comijauy in the village had the sole 41 So in Pennsylvania, and for- right to use these lights, which were merly in New York, see §§ 210, 211, patented, within the village, so that .sayra. the railroad company had to procure 42 State v. Santee, 111 lo. 1, 53 its lights from this company. This L. R. A. 763. In Cincinnati &(-. R. was sustained on the ground that the Co. V. Bowling Green, .57 Oh. St. 336, electric company was under obliga- iin ordinance required a railroad tion to furnish its lights on reason- company to maintain electric lights, able terms. ^^96 SPECIAL PKIVILEGES. § 673 fiple that police regulations in requiring arrangements or safeguards must describe them abstractl.y and by reference to the required (jualities, and must not name some specific pat- ented article or the product of some particular manufacturer. As long as it is possible that the prescribed standard may be reached by others, their exclusion constitutes an unlawful mo- nopoly in favor of the one named.^'' 2. An act of New York provided that the sale of transporta- tion tickets should be restricted to agents specially authorised by transportation companies, hut fui'ther allowed the properly authorised agent of any transportation company to purchase from the agent of another company a ticket for a passenger desiring a through ticket over the lines of both companies. It- was held that by this latter provision the agent of one company was really enabled to engage in the ticket brokerage business generally, that thus the ticket brokerage business was con- lint'd to api)ointees of transportation companies, and that this power of selection confided to corporations wholly uncon- nected with the state government constituted a monopoly and vitiated the act.^' .'3. In Illinois it has been held that the power to license and control commissioii incrchants may not be vested in a board appointed hy iiicor-poiated associations organised for tlic pro- motion of interests allied to the produce commission business, since tliis violates the provision of the state constitution'*^' pro- hibiting the legislature fi-otn granting to any cor})oration, assoeiation. «»r individual any special or exclusive ])rivilege, ujimuiiity or fi-anehise.'" This decision likewise embodies an important principle, which has not yet obtainecj full recogni- tion, namely, that licensing and examining powers should not be granted \n |>iir1icuhir named associations or institutions.'*^ ♦3 Hco iiImo KiMliltuni v. ("hicagi), piililic coiitracls (hchl ill(>jr!il) soo 171 III, .3:lie against such sul)se(|iient action.? In other words, was it within the |.o\ver ol" the granting body to iiiiike n contract uniinpairable iiii(ier the rederal constitution.' Til iirts (leiiiiiml tli.it the exclusive character of the ur;int bf expressed in the clearest terms, evei-y doiilit heing resolved nt'ain.st the grantee.' In tli.' case (.1" ih,. I '.in-^hiiiiiion Dridge.f' charters were grant. • Indiana Cable Street R. Co. v. ply Co., 141 U. S. 67. Citizens Street R. Co., 127 Ind. 369, 'Wheeling & B. Bridge Co. v. S L. R. A. .539; it seems the city Wheeling Bridge Co., 138 U. S. 287; had no power to make the original Williams v. Wingo, 177 U. S. 601. grant exclusive. '^ Fanning v. Gregoire, 16 How. 523, 534. (00 SPECIAL PEIVILEGES. § 677 is drawn origiually by the parties who are personally inter- ested in obtaining the charter ; and that they are often passed by the legislatnre in the last days of its session, when, from the uatnre of our political institutions, the business is unavoid- ably transacted in a hurried manner and it is impossible that every member can deliberately examine every provision in every bill upon which he is called on to act. On the other liami, those who accept the charter have abundant time to ex- amine and consider its provisions, before they invest their money. * * * Ami if individuals choose to accept a char- ter ill which the words used are susceptible of different mean- ings,— or might have been considered by the representatives of the state as words of legislation and subject to future re- vision and repeal and not as Avords of contract,— the parties who accept it have no just right to call upon this couct to exercise its high power over a state upon doul)tful or am- biguous words, nor upon any supposed equitable construction, or inferences made from other provisions in the act of in- cnrporation.""' ^ 677. Rival public undertakings. — Where the charter or grant is silent, no covenant is implied on the part of the grant- ing municipality that it will not itself establish a competing enterprise, but it will not be allowed to tax the private cor- poration for the payment of the obligations incurred in erect- ing the competing work.s, nor to discriminate directly or indi- rectly in its taxation against those citizens who do not transfer their patronage to the city." Where a |)owei' of .ilteration oi- revocation is expressly re- servi'd, its exercise li\- llie establishment of rival municipal works is mil n-iitlrretl invalid I)\- the hardship which i1 inflicts ii|»on the grantee.'- Sudi iiinnifi|i;il ju-lion luay he a, violation of faith, or i1 nuiy he ;i measure o|' seir-|)i-oteetioii ; it is a (picstion t'oi- ihc corpoi'al ion 1o dctei-niine in the first instance wht'tliiT it will jiccept so pi-cciirious ,i grniit. ? 678. Question of power to make exclusiveness a matter of right. Whi'ii' Ihc iiifciition to Lirnnt .-in exclusive IVanchisc! •"Dhio Lifp ItiHiinincn & TniHt E. 501.', S. (J. 184 U. S. .3.'J4. See mIho Co. V. Dir-tx.lf, III ITi.w. tUi, n.'"*, Xortli Si.rin^H Wiitcr Co. V. Taconn, 436. L'l W:isli. r,17, 17 L. R. A. '214. • • HkiiiM'iili'IcM «t«'. VVjiIit ' 'ciiii|i:iiiy '-' ll.iiniltnii (Ins &e. Co. v. llaniil- V. SknncntclcM, 161 .\. V. ir.J, .'55 N. I..i., IKi U. H. 258. S (;79 REVOCABILITY OF MONOPOLIES. 701 is clear the question of power arises. In the case of iniuiieipal corporations the power depends primarily upon the provisions of the charter or statute under which the city acts. These provisions are strictly construed ;i-' so a power to grant ex- clusive track rights was held to apply only to streets specifically designated by the council and not to extend to granting the first right to build in any streets which the council might name in the future.^^ In Iowa a power to grant and refuse ferry licenses (as distinguished from a power to license and regulate) was held to authorise a grant under which the city binds itself to issue no other license.^ ^ But where a city has merely power to license the use of streets for tracks, etc., the power to grant exclusive privileges will not be implied.i*' There may perhaps be city charters or statutes which expressly authorise the municipalities to grant franchises and privileges so as to make them exclusive in a binding manner, but they must be extremely rare, and it is hardly conceivable that this would be done otherwise than Avith a limitation to a term of years. A city in granting a license for water works may, how- ever, contract not to establish within a specified period, Avater works of its own, since municipal competition Avould be prac- tically destructive of the private business.^" § 679. Grant of competing right as impairing the obligation of a contract.— The question of the validity of the grant of competing rights in derogation of a prior legislative grant of exclusive privileges has come before the United States Su- preme Court under the clause of the constitution forbidding laws impairing the obligation of contracts. In the case of the Binghamton Bridge Company^ ^^ a perpetual bridge monopoly was held to be a binding contract ; the New Orleans slaughter- house monopoly, granted for twenty-five years, was held to be revocable before the expiration of that time;i'' the New Or- leans gas and water monopolies, granted for fifty years, were 13 Minturn V. Larue, 23 How. 435 ; 548; Carroll v. Campbell, 108 Mo. Wright V. Nagle, 101 U. S. 791. 550, as to ferries; Dillon § 692, 1* Detroit Citizens' Street E. Co. Booth, Street Eaihvays, § 108. V. Detroit Railway, 110 Mich. 384, i" Walla Walla v. W. W. Water S. C. 171 U. S. 48. Co., 172 U. S. 1. i-"' Burlington etc. Ferry Co. v. is 3 Wall. 51. Davis, 48 Iowa 133. i'» Butchers Union v. Crescent City le State ex rel. St. Louis Under- &c. Co., 1 11 U. S. 746. ground E. Co. v. Murphy, 134 Mo. 702 SPECIAL PKiViLECiElS. § 680 held to be secure against the grant of competing franchises.^" No distinction is therefore made between perpetual monop- olies and those limited in lime; but the test is whether the grant relates to an undertaking which in its nature cannot be thrown open indiscriminately, or whether it affects a busi- ness exercisable as a matter of common right, and restricted only for the real or alleged advancement of the public health or of some other interest. In the latter case, the exercise of the police power Avhicli justifies the original restriction of i)ri- ■vate right, is also held to justify tlic jibrogation of the re- striction at any time. In the ease of the Binghamton Bridge i1 was merely con- tended that the legislature did not grant an exclusive fran- chise ; its power to make such grant was conceded. Should the state courts hold that under the state constitution the legislature is powerless to bind subsequent legislatures, there would be no valid contract; probably the United States Su- j)reine Court would follow this construction of the state con- stitution, although it claims the power of iiuh'pendent judg- ment where it is itself opposed 1o the theory of a contract.-^ ii 680. Louisiana slaughter-house and gas cases. — The Lou- isiana slaughter-house and gas company cases show some fluc- tuation or modilication ol' opinion on the ])art of the Sui)i'('nie Court. The slaughter-houses cases sanction a monopoly for the iirot.'ctioii ol' ih" pul)lie health. Hie Butchers' Union case holds sui-li a iiion(t|)oIy to be i-evocable, the gas company cases sustain the irrevocahility of a gas monopoly. The slaughter- hou.sc ca.scs go on the broad ground that the Fourteenth Amend- ment alTords no ])rotection against monopolies, the Butchers' I'liioii case upon tlir ground thai the Icgislatui-e cannot bar- gain away its power to pi-olcct piililic licaltli or nioi-als. llic gas i'oinp;iii\- cases on llir Lironiid lliat the su|)ply of gas is a public liusincss and inv(»lvcs tin- grant of IVancliiscs which in their nature cannot he (d' common rinht. The slaughtci-- luMise cMscs do not sug^^cst thai a monopoly against common right catuiot hr irrevocably graiMed \'t)v a definite p(>rio(l. and a'» New OrloHiiH Ctnx }A^hi (U,. v. iiinny Wjilcr Works Co. v. N. O. LouiHiaiiM l^iyht &c. Co., ll.T IT. S. W.iUt Works Co., 1 1'O U. S. (i4. • sr.O; \,.w OrloaiiH Wnlcr Works Co. i l^'rccporl W:itcr Co. v. Frcoport, V. RivorH, II.'-, ir. S. (i71; Ht. Tain- IM) V. S. M7, .19.'); [)oiijrl;,s v. Ken- tucky, 168 U. S. 488. ij (j81 liEVUCABiLlTV OF MOXOl'OIJKS. 703 the grant there was for a period of twenty-five years. The Butchers' Union ease says that a wise policy forbids the legis- lative body to divest itself of the power to enact laws for the preservation of health. Had the slaughter-house monopoly endangered the public health, or had the public health re- quired additional slaughter-house facilities not furnished by the monopoly, a case would have been presented within the principle of Beer Co. v. Massachusetts and Stone v. Mississippi. But it was not charged, nor does the opinion of the Supreme Court intimate, that the continuation of the monopoly was in- consistent with the public health. The abrogation of the mo- nopoly was an economic and not a sanitary measure. The decision of the Supreme Court means therefore that while a monopoly against common right can be granted for police pur- poses, the Supreme Court will not recognise such a monopoly as a contract, i. e. it is intrinsically revocable, no matter whether the revocation be demanded by the public health or not. This seems an important modification of the Slaughter- House Cases, which do not suggest any distinction between a slaughter-house and a bridge monopoly. On the other hand, where the monopoly is not against common right, but relates to a public franchise, it may be made exclusive so that subse- quent competing grants cannot be made, and this constitutes a contract. Such a contract is subject to further regulations in the interest of health or safety, but its total abrogation by the grant of competing rights would, it seems, not even be justified by regard for the public health or safety, requiring a different or additional supply of light; the abrogation even for that purpose could be accomplished only by the exercise of the power of eminent domain. § 681. Perpetual monopolies and monopolies limited in time. — In many states the constitution is explicit that the legisla- ture may not grant exclusive privileges by special or local act, and in North Carolina, under the more general constitu- tional provision above cited, the courts have held repeatedly that the legislature cannot create a monopoly .22 As a matter of general constitutional principle, it would seem to be proper to make a distinction between perpetual mo- -- McKee v. Wilmiugtou &c. E. missioners of Beaufort, SI N. C. Co., 47 N. C. 2 Jones 186; Wash- 491; Thrift v. Elizabeth City, ll'L' N. ii!gton &e. Toll Bridge Co. v. Com- C. ."^l. 704 SPECIAL PRIVILEGES. § 681 iiopolies and those limited t(i a period of years, A perpetual monopoly is unjustifiable ou any consideration, hence un- reasonable, and should be held to be intrinsically beyond the ])0wer of the legislature to grant ; the history of monopolies strongly supports this view. On the other hand, if circum- stances justify the grant of exclusive privileges, justice to the grantee Avould seem to recpiire that in return for his outlay there should be power to secui'c him in the enjoyment of his ])rivilege for a reasonable length of time, sufficient at least to )-eimburse him lor the capital invested. It has already been pointed out that the decisions of the federal supreme court do not support this distinction, and it might require constitutional provision to fix the length of the permissible term. Our constitutions are with few exceptions silent regarding the general validity of monopolies ; perhaps the provision found in a luimber of constitutions that the right of eminent domain shall never be so construed as to ju-event llic legislature from taking the i)i'oi>er1y oi- franchises of in- eorporated companies,-'' has reference to exclusive privileges. -^ Pennsylvania, Illinois, Nebras- kansas, California, Colo r ado, ka, West Virginia, Missouri, Ar- Georgia, Alabama. CHAPTER XXXI. CLASSIFICATION AND DISCRIMINATION. § 682. Statement of problem. — Under the head of particular burdens a number of cases have been discussed in which the justification of police legislation was questioned on the ground that there was not sufficient causal connection between the right impaired and the public danger sought to be avoided. Much more frequent are the cases in which, while this con- nection is conceded, it is objected that the restraint is imposed upon some while others who are in a similar position are ar- bitrarily exempted from it. This objection involves the ques- tion of the validity of class legislation, and, in so far as it can be successfully maintained, constitutes one of the most effectual limitations upon the exercise of the police power. The legislative discrimination which is thus questioned may be based on time, on locality, on personal status, and on differ- ence of acts or occupations. DISCEi:\IINATIOX BASED ON TIME.— EXCEPTIONS IN FAVOR OF EXISTING CONDITIONS. §§ 683-687. § 683. 1. Where new measure amounts merely to regula- tion.— It is obvious that a restrictive or prohibitive measure under the police power must operate verj^ differently upon those who have invested property or acted otherAvise in re- liance upon the former condition of the law, and those who have not yet committed themselves in this manner. The loss and sacrifice which the measure entails upon the former ex- ceeds by far the burden placed upon the latter. While an exception in favor of the former will of course create a dis- crimination in the operation of the measure, such discrimina- tion may be a dictate of equity, and may even be demanded by a due regard for constitutional rights. On the other hand, the exception should not go further than the equity of the ease requires, or it may become unconstitutional inequality. The first case to be considered is where the new measure amounts to no more than a regulation even as regards pre- viously vested interests. There is then no doubt that it can 4" 705 70H CLASSIFICATION AND DISCRIMINATION. § 684 be eoustitutionally applied to them, and an exception in their favor should be alloAved only if the application of the rule to them produced special hardship, or where it would impair the obligation of existing contracts.^ Thus increased strin- gency in the regulations of liquor saloons are generally made applicable to existing places, and are not confined to those to be opened in the future, but Avhere the regulation refers to lo- cation, establishments previousl}^ located are properly ex- cepted.2 The establishment of a qualification for the practice of a profession may be such that it can be complied with by estab- lished practitioners, and then its retroactive operation would not be unconstitutional; so the Supreme Court has said that the same reasons which control in imposing conditions upon compliance with which the physician is allowed to practice in the first instance, may call for further conditions as new modes of treating disease are discovered, and that therefore a knowledge of the new acquisitions of the profession may be required for continuance in its practice.^ In this case physi- cians having had ten years' practice were exempt from the requirement of examination, their experience being regarded as sufficient evidence of (lualificatioii, and on the like ground the exemption of five or ten years' practitioners is upheld in other states.^ ^ 684. Exemption of established practitioners.— It is clear that tiif rf(iiiiitiiieiit of an examination is a hardship for any eslai)lished j)raetitioner very difi'ei-ent from the same require- MH'Dt imposed upon future applicants for admission, and there- fore, whether the fact ol" being engaged in practice when the statute is enacted, iiTespective of length of time of such prae- iiee, can be regarded as a test of fitness or not, it should Ix; n-Karded ns a suflieient reason for exemption.^' The exenq)tion, not <>\' all estahlislicj practitioners, but only of those who hav<' b.rn ."ugaged in husiness for a certain ' H«' Ten Hour l-aw f..r Street Willijiiiis v. People, iL'l 111. 84- Wcilwuy Corporatu.nH Mi'. I.), .''i I St.-it.- v. ViiiitlcrHliii.s, 42 Minn. 129, '^"- '■'"-• (• I>. K. A. IH); Kx |.;nto Spinney, -Hi- IIiiwkitiH, Ifj.'i X. Y. 1HH, .')8 10 Nev. .3L':{. ^"- ^'• HH4. ■• Sl:ilr V. U;iii(|,,!p|i, L'!', ( ),•,.<.,, ii 71, •«I).>nt V. W.-Ht Vir«iMi!i, iL'lt U. S. J7 K. H. A. 470; Fox v. T(Mritory, "•• 2 Wnsli. T. L'07; St.-i1.. v. Cr.MlituV, ♦Stiito V. Hnfliiiw.'ty, ]]r, Mo. .'{(i ; 44 Kan. 4(]r,. § 685 EXCEPTIONS BASED Ox\ TIME. 707 number of years, has something arbitrary in it, and has been condemned by the Supreme Court of Ohio as class k^gislation." But if prolonged practice may be taken as proof of experience, it is necessary to fix upon a certain number of years, and this kind of arbitrariness is, as has been pointed out before, in- evitable in a police regulation. If the exemption must come down to the date of enactment, the state is powerless to pre- vent an evasion of the act on the part of those who begin prac- tice in contemplation of the new laAV and in order to escape its requirements. The policy of legislation as to established practitioners is not uniform; in Illinois in the same year an act was passed requiring licenses for architects upon examination, excepting those already practicing the profession, and also an act re- quiring examination of "any person now or hereafter en- gaging in or working at the business of plumbing.''" In New Hampshire it was held unconstitutional to exempt existing practitioners not merely from the requirement to establish their qualification, but also from the payment of the fee exacted from all others, the latter point being controlling,^ or to exempt by reason of the accidental circumstance of residence or non- residence in the same town.^ § 685. 2. Where new regulation is destructive of vested interests. — The second class of cases requiring consideration is that in which a measure which in its prospective operation is merely a regulation, becomes, when applied to vested interests, prohibition or taking of property. So if a law regulating the « Harmon v. State, 66 Oh. St. 249, 181 III. 73, 54 X. E. 646, 50 L. R. 64 N. E. 117, 58 L. E. A. 618. A. 519, where the exemption bv the ~ Laws 1897, p. 81 and p. 279. legislature of law students, who had s State V. Pennoyer, 65 N. H. 113. commenced their studies at the time 18 Atl. 878, 5 L. R. A. 709. certain new rules regarding admis- 9 State V. Hinman, 65 N. H. 103. sion to practice went into effect, If existing practitioners are not from the operation of those rules exempted, it must be asked : Who is was treated as arbitrary classifica- to examine the members of the ex- tion. However, this was not the amining board? The very fact that main ground for holding the stat- Ihey by implication are exempt ute unconstitufional, the chief argu- raises a serious question as to the ment being, that the act constituted constitutionality of the acts which a legislative encroachment upon the fail to exempt all other existing constitutional independence of the practitioners. judicial power. See, also, in the matter of Day, 708 CLASSIFICATION Ai\D DlSCElMixNATIOX. § G8G practice of medicine should require a four years' course in a medical college without accepting another test; existing prac- titioners could practically not comply with this requirement, and if it were applied to them, it would oust them from the practice of their profession; this would be clearly unconsti- tutional. Thus the establishment of fire limits within which frame buildings are forbidden is a regulation as applied to vacant property, while as to existing frame houses it would be a taking of property; hence the exemption of such houses is not only not contrary to, but is demanded, by the con- stitution.^" § 686. 3. Where new measure amounts to prohibition.— The third class of cases is where the police measure exceeds the scope of regulation, and amounts to prohibition. Retro- active prohil)ition means in most cases the taking or economic destruction of property, but wdiile it resembles the second class of cases in this respect, it differs from that class in two other respects: the policy of prohibition implies an evil or danger of exceptional magnitude, and any exception not merely allows a partial perpetuation of the evil or danger, but in addition may give to those excepted a monopoly instead of a mere advantage. It has been sjiown before that retroactive prohibit ii)ii witliout compensation is constitutional, although the granting of compensation has never been held unconsti- tutional ; the demands of e(iuity might therefore always be satisfied by compensation ; the question here to be considered is whether if compensation is not intended the law may con- stitutionally except vested interests from the prohibition. !; 687. Exception in favor of existing rights.— In Illinois it has bfcn lield that a nuniicipal charter power to direct the lo- cation and iiianagement of, and to regulate and prohibit, Hhnightering establislunents within tlie city, could not lie so exerelHcd as 1o pi-dhihit only the future erection of slaughter- houses." The court laid down the principle in rathei- sweep- mn terms: "If it prohibited one from carrying on llic husi- iie.sK that prohil)ition should extend to all regardh^ss of the tiiiif the Inisiness Diay have been commenced." But it should bf nf>t<'(l tliJit in this case the regulatioji emanated from the >" WiullpiKh V. Oilmnn, 12 Mc. 40.3. " Tiifrmiin v. ChieaRO, 78 111. 405. §087 EXCEi'TlU.XS BASED ox TIME. 701) board of health, while the power of regulation belonged only to the city council, so that there was an independent ground of illegality.^ 2 In Massachusetts the municipal power to prohibit was ex- pressly confined to the future erection of noxious establish- ments.^'* There must be many cases in which it is the undue multiplication of noxious establishments which creates the sanitary danger, and in which the district to which the pro- hibition applies is not large enough to give to the existing establishments which are suffered to continue, a virtual mo- nopoly of the business : in such cases there can be no reasonable objection to the policy of exemption. Where the effect of the exemption is that the evil will not be sensibly abated, but simply be made more profitable to those who are pursuing it, the inequality of operation may constitute a fatal defect. Thus an act of New Jersey passed in 1893 created very onerous con- ditions for licensing race courses established after January 1, 1893, while those previously established were allowed to operate under a much more liberal licensing system. This was held to be unconstitutional discrimination.^^ In San Francisco an ordinance w^as passed prohibiting the future acquisition or disposition of any land for purposes of interment, but allowing interments to be made in lots already purchased for that purpose for the use of the owners and their families. This was held illegal as discriminating in favor of those who had already purchased burial plots as 12 In Crowley V. West, 52 La. Ann. j ination and was unreasonable; but |\ 526, 47 L. E. A. 652, the City Coun- it was also held that the charter of cil required all livery stables to be the city did not give it power to ex- eiected after passage of the ordi- elude livery stables from any por- nance to be located outside of a des- tion of the city. ignated district comprehending the In Kentucky it has been intimated business portion of the city. At the that the exemption of persons own- time there were in that district four ing liquor at the time of the en- livery stables; ground had been aetment of a statute forbidding its purchased for the erection of a fifth sale at retail in certain localities one. The owner of the ground after would be unconstitutional dis- the passage of the ordinance pro- crimination ; Stiekrod v. Common- ceeded to erect the stable in the wealth, 86 Ky. 285, 5 S. W. 580. prohibited district, and contested i-'? General Statutes, ch. 80, § 92; the right of the city to treat his see now Rev. Laws, ch. 75, § 108. stable as a nuisance. It was held i-t State v. Elizabeth, 56 N. J. L, that the ordinance under the cir- 71, 23 L. E. A. 525, cumstances made an unjust discrim- 710 CLASSIFICATION AND DlSCKlAJlNATiON. § (,88 against those who had not.^-"' It appeared that the effect of the ordinance would have been to deprive a cemetery asso- ciation of the right to dispose of its unsold lots, w^hile at the same time, under the terms of the ordinance, a very much larger portion of the cemetery already disposed of would have continued to be available for burial purposes. Here then the exception in favor of existing rights was only partial, in that it ignored the vested interest of the cemetery associa- tion, and at the same time Avas so far-reaching as to nullify almost the beneficial effect of the ordinance. As a matter of constitutional and statutory policy it would seem to make a great difference Avhether the continuation of existing conditions will be temporary or perpetual. In the case of licenses to practice professions, the period of exist- ing lives is the limit of inequality; on the other hand the exemption of existing corporate rights may create a perpetual privilege or monopoly. Where existing frame houses are ex- cepted from the operation of new building regulations, the law often forbids repairs when the damage amounts to more than a certain proportion of the original value ; and thus a gradual disappearance of such houses is practically assured. The power of eminent domain is of course always available for the abrogation of vested rights. DISCRIMINATION BETWEEN LOCALITIES. §§ 688-690. ii 688. Constitutional provisions. — In the case of ^Missouri V. Lewis,'" the Supreme Court decided that the equal protec- tion clause of the Fourteenth Amendment does not prevent the application of different rules to different local divisions of the state. "It contemplates persons and classes of persons. It has not respect to local and nninicii)al regulations that do not injuriously alVect oi- discriminate between persons or classes nf persons within the places or nuniicipalities for wdiich such reguhitions are made.'' in the case before the court a difTer- enoe was made in the right ul" .ippciil IVoin the courts of certain counties of the state and those of the rest of the state. It was held that the state was free to establish different systems of courts for (liffej'cnt portions of its territories, and might even place th Slraiidor v. West Virginia, 100 Hljitf V. Claiboriic, li» Toiiii. (.Moijjs) U. S. IMli. :V.i] ; Hilt wood V, State, 18 [nd. 492; •'» Ro Taylor, 48 Md. 28, NclHon V. IVoi)l<', nn m. .lltO. See -la 109 U. S. 1, 1883. I.rf««'i)t conHfiliifiiiii i.f ()rc^r„ii, Art. 'i'' Kx parte Virginia, 100 U. S. I. i .'!.'», retaining liie old provision. ;?39. See People v. T^rady, 40 (.'al. a<»8tate v. Mnnuiil, 20 N. C. (4 198, mistaining a l.iu inc-ipacitating Di-v. & nnt.) 20; African M. Iv fn.Iians :iiid Mongolians (loiii testi- ''hurrh v. Now Orlt-anH, 1.''. ].:i. Ann. fying in criminal cases in favor of t41; *n'i\ howfvcr. .McinphiH v. Win- or against white persons, notwitli- Add, H MnniphreyH (27 Tcnri.) 707. standing the 14tb Amt. But it seems § (j94 RACE. 715 accommodation of public conveyances antl places of amuse- ment was not authorised by the constitution, since it attempted to forbid discrimination not exercised under color of state authority. The amendment has further been construed to the effect that Congress cannot provide for the punishment of a conspiracy on the part of individuals to deprive a person of the equal protection of the laws or of equal privileges and immunities under the laws, or to prevent or hinder state authorities from giving or securing to all persons within the state the equal pro- tection of the kvvs;^^ but may provide for the punishment of a conspiracy to injure, oppress, threaten or intimidate a person in the free exercise or enjoyment of any right or privilege secured to him by the constitution or laws of the United States.35 § 694. State legislation forbidding discrimination.— The substance of the federal law declared unconstitutional in the Civil Rights Cases is embodied in the statutes of some Northern states,^^ which provide that no person shall be denied the full and equal enjoyment of the accommodations, advantages, fa- cilities and privileges of all hotels, inns, taverns, restaurants, public conveyances on land or water, theatres and other places of public resort and amusement, because of race, creed or color.2' The constitutionality of provisions of this character has been upheld,^^ except when their operation cannot be con- fined to one state, but necessarily affects interstate commerce. Thus a statute forbidding the separation of the two races on steamboats within the state is unconstitutional in so far as it will deprive the passenger coming from without the state of the privilege of separate accommodation. •^■' § 695. Discrimination apart from statute. — It will be noted clear that the protection of the crim- liod similar statutes existed in inal law does not operate equally Southern states. Donnell v. State, vrhere a white man is assaulted by a 48 Miss. 661 ; Joseph v. Bidwell, 28 Chinese, and where a Chinese is as- La. Ann. 382. saulted by a white man. 3' New York Penal Code, § 383; s-tU. S. Rev. Stat. § 5519; United Illinois Criminal Code, 42 i-r; in States V. Harris, 106 U. S. 629. some statutes the use of cemeteries 35 United States Revised Statutes, is included. S 5508; Ex parte Yarbrough. 110 U. •■>< people v. King, 110 X. Y. 418, 8. 651; United States v. Waddell, 1888; Baylies v. Curry, 128 111. 287. 112 U. S. 76. 39 Hall v. De Cuir, 95 U. S. 485. 3c During the reconstruction pe- 716 CLASSIFICATION AND DISCEIMINATION. § 695 that these statutes regulate the proprietary control of private property which is in other respects subject to a strong exercise of the police power, and which according to prevalent opinion either by common law is, or by statute may be made, subject to the duty of fair and equal service to the public. The common law duty of carriers, innkeepers, etc., is to furnish accommodation impartially to all who may apply and pay therefor, provided they are not personally obnoxious by reason of disease, intoxication or other offensive personal condition. That the more fact of color cannot under our constitutions be regarded asmaking a person in a legal sense objectionable, must be elear.-^'^ Provided, however, that accommodation is af- forded, and that the accommodation, though differing according to the price charged is equal for all who are willing to pay the same price, the common law duty of equal service is held to be satisfied, although there be separation according to race, setting aside dift'erent coaches and waiting rooms of railroads, and different portions of theatres, for each of the two races.^^ Such separate accommodation does not answer the require- ments of the Civil Rights Acts.-*^ These statutes, therefore, increase the burden of the common law, and there should be some justification for this. The courts which sustain the stat- utes hold in eff'ect that it is a legitimate exercise of the police power to prohibit any method of regulation of places of public resort Avliich prevents the free commingling and association of the two races, and which accentuates the condition of in- feriority of the one race. The statutes are regarded as ap- propriate measures to elevate an oppressed race, and to relieve it from the stigma of degrading discrimination.^^ There is no <,'ood reason why the power, if recognised at all, should be confint'd to those classes of business which happened to be tn-atrd ])y tlic common law as common or public, and the ex- tension of llif rc(|niromonts of the civil rights acts to restaur- ants or harlicr shops is constitntional."*"' The practical difficulty of cnforcinir requirements of this nature is a strong safeguard «<>CliiraK.) & N. W. R. li. Co. v. bnliun, .38 S. C. 5129, 19 -L. R. A. WilliamH, .').'» III. 185. 7J0; Bowie v, Biriniiiphani Railway ♦ 1 Wr'MtchoHfor &c. R, Co. v. MiloH, Co., 125 Ala. 397, 50 T.. R. A. 032. 55 Pa, St. 209; YouTiRor v. Judah, 42 Baylies v. Curry, 128 111. 287; 111 Mo. 303, in L. R. A. 558; Cliil- Dontirll v. State, 48 Miss. GGl. ton V. Ht. Iv. & I. M. R. Co., 114 \Tn. •»-. People v. King, 110 N. Y. 418. 88, 19 L, R. A. 269; Smith v. Cham- ■«4 Ferguson v. Gies, 82 Mich. 358; §(3% SEPARATION OF RACES. 717 against their undue extension. It is believed that these statutes have never been enforced except in sporadic instances. § 696. Compulsory separation.— The separation of the two races by state authority represents a policy opposite to that of the civil rights legislation. Such separation is attempted to be enforced in three directions: in marriage, in education, and in the accommodations of public conveyances. § 697. a. Miscegnation.— The la\YS of a number of states prohibit marriages between white persons and negroes or persons of more than a stated proportion of African blood ;^^ in some states the prohibition is made by the constitution. With the exception of one case, which was subsequently overruled,'*^ the state and federal courts have uniformly sustained the va- lidity of this prohibition.'*' The Supreme Court of the United States has not had occasion to pass upon this question; but it has sustained a law punishing illicit sexual intercourse be- tween white and colored persons more severely than the same offense between persons of the same race, saying that where the same pimishment is meted out to both offenders, the white and the black, there is no discrimination.^s By the same argu- ment, it would probably refuse to see any discrimination in the prohibition of intermarriage; and in Plessy v. Ferguson^^ the prohibition of intermarriages is mentioned as a legitimate exercise of the police power. Marriage is clearly a matter in which race difference has a natural and specific operation, and whether it can be regarded as established that the off- spring is apt to be degenerate or not, the legislature, in judg- ing of the evil tendencies of such marriage in phj-sical re- spects, must exercise a large discretion, and the prohibition is at least as reasonable as that of marriages between first cousins. Messenger v. State, 25 Nebr. 674, 41 State, 3 Heisk, 287 ; Dodson v. State, X. W. 638. See Bowlin v. Lyon, 67 61 Ark. 57, 1895; Scott v. State, 39 la, 536 and Iowa Laws of 1884, ch. Ga. 321; Ex parte Francois, 3 105. Woods 367; Re Hobbs, 1 Woods 45 See Stimson, § 6112. 537; Ex parte Kinney, 3 Hughes 9; 40 Burns v. State, 48 Ala. 195; Frasher v. State, 3 Tex. App. 263; Green v. State, 58 Ala. 190. State v. Tutty, and State v. Ward, 4T State V. Gibson, 36 Ind. 389 ; 41 Fed. 753, 7 L. R. A. 50. State V. Jackson, 80 Mo. 175 ; State 48 Pace v. Alabama, 106 U. S. 583. V. Hairston, 63 N. C. 451 ; Lonas v. 49 163 U. S. 537. 718 CLASSIFICATION AND DISCEIMINATION. § 698 § 698. b. Education. — The constitutions of a number of states require separate scliools for the children of the two races, and the practice of separation prevails throughout the South, and to some extent in Northern states. At the same time constitutions or laAYS seek to secure equality of school benefits.^ Upon the assumption that separation is consistent with equality of privileges, it has been upheld both in state and in federal courts.- The Supreme Court of the United States has not directly adjudicated the point.^ Where no special provision for education of colored children exists, they cannot be excluded from the public schools.^ Separate educa- tion may be justified like the prohibition of intermarriage, by the specific bearing of race upon the subject: there is sufficient ground for maintaining that in view of the different mental characteristics of the two races separate schools can produce better results, or that separation is desirable in the interest of discipline. The distinction of race in this matter is analogous to the distinction of sex, and separate education of the two sexes while not universal is common and tradi- tional. Since education is provided in public schools, the state or municipality cannot remain neutral or inactive but must decide in favor of joint or separate education. In the exercise of the police power it may, however, also forbid joint educa- 1 North Carolina: There shall be -State v. Cincinnati, 19 Oh. 178; no discrimination in favor of, or to Cory v. Carter, 48 Ind. 327; State v. the prejudice of either race. Florida: McCann, 21 Oh. St. 198; Ward v. Impartial y)rovision shall be' made Flood, 48 Cal. 36; Chrisman v. for both. Indiana: The trustees of Brookhaven, 70 Miss. 477, 12 South- fach township » ♦ » shall or- em 458, 1893; Lehew v. Brunimell, ganise the colored children into sepa- 103 Mo. 546, 11 L. R. A. 828; Peo- rute Hchools, having all the rights pie v. Gallagher, 93 N. Y. 438; Peo- und privileges of other schools pie ex rel. Cisco v. School Board, • • • provided there are not a 161 N. Y. 598, 56 N. E. 81 ; Martin hiilTicicnt number within attending v. Board of Education, 42 W. Va. diKfance, the H.'vcnil districts may be 514, 26 S. E. 348, 1896; Bertonneau (•ouHolidatcd and form one district, v. Board of Directors, 3 Wooils 177; But if there are not a sufficient United States v. Buntin, 10 Fed. 730. number within reasonable distance 3 Cummings v. County Board of lo bo tluiH rr)ns((Iidatc' State v. Duffy, 7 Nev. 342, 8 Am. iinmlxTH of mdiool revenue to the Kep. 713. IwMt advantage. ^ (j9n taken in several inrisdictinns witli reference lo ;i(lmission of >3 United StutcH Rev. Stat. § ^Gr,. v. Adnms, .58 Oli. St. (ill', .11 N. E. i«Oron V. Abbott, TJl Midi. .110, 1.3.5. 17 L. R. A. »•_'; Atchisdii V. T.uciia, I'iSce Stale v. TTostcttcr, i:?7 Mo. At3 Ky. jr.I. r<„itr,i. WriRlit v. (i.3(i, :{!i S. W. 270, .-^S L. 1{. A, 2GS, Nooll, 16 KanH. fiOI. witli full note. '6 Op. .IiiHtires, lfi.5 MaHH. .5<)<». r^'J '^ Ail. XX, § 18. ]j. R. A. .3.50, 4.3 N. E. 927; State i" Aet March 22, 1872. in Rallinger's Code, § .3322. §702 DISCRLMINATION ACCORI)l.\(; TO SEX. 723 women to the practice of the law, which was denied in Massa- chusetts, Illinois, Virginia and Maryland.^*' The federal supreme court has held that the right to prac- tice law is not one of the privileges and immunities of United States citizenship, and no use appears to have been made of the argument that the equal protection of the law demanded that women should be allowed the same means of earning a livelihood as men.^^ In Illinois the disability to practice law by reason of sex Avas abolished afterwards by statute, and in most jurisdictions the right is now conceded. With regard to other professions and the ordinary kinds of business there seems to exist neither exnress prohibition nor implied dis- ability. The disability to i)ractice law does not afford any foundation for the claim that the legislature may freely determine what avocations may be pursued by women. The legal profession is in this matter treated more as an office than as a private business. The principle of the equal protection of the laws seems to demand that women shall have the same opportuni- ties of earning their living as men, unless the pursuit is such that sex constitutes a special ground of objection. The laws relating to the right of married women to establish themselves as sole traders, affect only questions of civil liability of husband and wife and the right to earnings, 22 and do not fall under the police power. It would probably be a legitimate exercise of the police power to make a married woman's right to en- gage in industrial employment to depend upon her husband's consent, as a regulation of marital authority, but such legis- lation would be contrary to public sentiment and does not exist. The equality of the sexes should not prevent discriminative police provisions based on difference of sex, though they may operate chiefly as disabilities imposed on women. That dis- crimination does not necessarily operate in this direction, ap- pears from a statute of Ohio providing special punishment 20 Robinson 's Case, 131 Mass. 376, 21 Bradwell v. Illinois, 16 Wall. 41 Am. Rep. 239; Ee Bradwell, 55 130; In re Loekwood, 1.54 U. S. 116. 111. 535; In re Loekwood, 154 U. 22 Schonler Domestic Relations, S. 116; Re Maddox, 93 Md. 727, 55 5th edn. §§ 163-170; Todd v. Clapp, L. R. A. 298. Co7itra, Re Hall, 50 118 Mass. 495. Conn. 131, 47 Am. Rep. 625. 7i»4 CLASSIFICATION AND DISCRIMINATION. § 703 ;i?amst tramps, and defining them so as to exclude females.^- 1 lere it is the male sex which is discriminated against. Special provisions regarding women occur in legislation regarding labor and the retailing of intoxicating liquors. The laws for the protection of women employees have been con- sidered before.-^ § 703. Employment of women in the liquor business.— In Indiana liquor licenses may be granted only to male persons,^^ and the employment of women in places where intoxicating liquors are retailed is not uncommonly restricted or even for- bidden. In New York no woman not a member of the keeper's family may sell or serve liquor on the premises f'' in some cases any employment of women in such a place is made unlawful.-' In California, under the constitutional provision above quoted, an ordinance making it a misdemeanor for a female to wait on any person in any dance cellar or bar room was held invalid,-'^ but later on an ordinance prohibiting the sale of li([uors in dance cellars or other places of amusement where feinales attend as waitresses, was sustained, ^^ as was also the refusal of licenses to those employing femalos,^*^ upon the ground that the constitutional clause did not prevent the pre- scribing of conditions u]ion which the business of retailing lifiuors shall be permitted to be carried on. It would seem that in all these cases alike the female was practically pro- hibited from engaging in one particular business, and that the particular form in which the result is accomplished should be iiiunati'riai. An un<|uali(ied constitutional recognition of the <'(|uulity of sexes in all employments naturally makes it dif- ficult to support legislative discrimination even for the most legitimate purposes. In the absence of specific constitutional provisions the pro- hibiton oi' Ihc eni|)loyment of females as waitresses in places when* li(|uoi* is retailed has been sustained without difficulty.'" 'Pliis sho\ild not be placed upon the ground that the control over llie lifjnor trade is so absolute as to allow diserimination " State V, HdKJin, fi3 Oli. St. 202, an Kx parte Hayes, 98 Cal. 555, 20 58 N. E. 57'J. ' L. "R. A. 701. 2« Sw S •'^11, Kujtra, •'"' FoKtor v. IViIici' ('(imniiHsioiuTS, !f' HInir v. Kilpatrick, 10 lii-l. XV^. 102 Cal. 48:i •n T/if|tnir Tax Law, § :'il. ' Bfrpniaii v. Clovolaiid, '-W Oli. »M{o roiiMidinr, «:i Vvi\. h'lp. LIT. St. ()51 ; City "f Ilf.bdkcri v. (iood- "Ho MaKuirn, 57 Cal. (504. man (N. J. L.), 51 Atl. 1092; Ma- § 703 DISCRIMINATION ACCORDING TO SEX. 725 in the free discretion of legislative or administrative authori- ties, but rather upon the ground that the principle of equality of the sexes yields under circumstances where it would be an encouragement to vice. It seems that women could not be prohibited from accepting employment in wholesale liquor establishments, although these are as much at sufferance as the saloon, and even a sweeping prohibition of their employ- ment in places of retail sale, as e. g. the employment of scrub- women at hours when the place is not frequented by custom- ers, would be unreasonable. A legal provision which should undertake to prohibit women from frequenting saloons would undoubtedly be a more incisive interference with individual liberty. If applied to all places where liquor is sold to be drunk on the premises it would under the social conditions of many cities be clearly unreasonable ; in Kentucky an ordinance forbidding women to "go in and out of any building where a saloon is kept, etc.," was held to be oppressive and void;^^ j^^^^ municipal ordinances have been sustained making it unlawful for any female to be after mid- night in any public drinking saloon.^" The test of the validity of the prohibition would seem to be that the presence of females in a particular class of places, or at some particular time, involves a danger to public order or public morals. The pro- vision of the Rhode Island law^^ forbidding the sale to women of liquor to be drunk on the premises would probably be sus- tained on the theory of absolute legislative power over intoxi- cating liquors; but on principle it seems an unjustifiable discrimination, since the mere consumption of liquor in public places on the part of women is no more immoral than it is on the part of men. It should be concluded that the equality of sexes is a con- stitutional principle only in so far as sex or the difference of sex does not constitute a specific danger. The proper recog- nition of the natural inequality of the sexes should not be regarded as contrary to any principle of our constitutional law. rion V. Reynolds, 14 Mont. 383; Re 32 Gastineau v. Commonwealth, 22 Considine, 83 Fed. Rep. 157; State Ky. Law Rep. 157, 49 L. R. A. 111. V. Consadine, 16 Wash. 858, 47 Pae. as Ex parte Smith, 38 Cal. 702, 755 (here employment in any ea- 1869; Adams v. Cronin, 29 Colo, paeity forbidden), 488, 69 Pae. 590. 34 General Laws, eh. 102, § 13. 72(3 CLASSIFICATION AND DISCEIMINATION. § 70-4 ALIENS. §§ 704-707. § 704. Power of United States. — The constitutional status of aliens must be considered with reference to the power of the United States and of the states. The United States has, as against other nations, all the powers which a sovereignty may exercise under the principles of international law, except in so far as these powers may be modified by special treaty stipulations. In the exercise of these powers the federal government is limited by the require- ment of due process of law, but it has been settled by judicial decision that due process does not require judicial proceedings either for the exclusion or for the deportation or expulsion of aliens, but that the enforcement of laws in those respects may be entrusted to executive officers without any appeal to the courts,-^"' while infamous and probably any other punishment can be intiicted on aliens only by the judgment of a court.^^ In other countries the question usually discussed in this connection is whether the executive without express legislative delegation of authority may expel aliens. In England the power of the Crown is denied ;3" in Germany the right of the executive is recognized ;3s in France it is delegated by stat- ute.3" No such power is claimed foi- the federal executive in llir United States. § 705. Power of states. — The states are bound in their treat- nii'iit of aliens partly by the international obligations of the United States, partly by the provisions of the federal constitu- lion. A state cannot exclude aliens from its territory for political or economic reasons, or limit them in their right to carry on foreign commerce, since in these points the federal aiiUiority is not iiKtcly supreme but exclusive. The state can theri'fore not |>n1 ;i t;i\ u|ii)ii immigrants or place other restric- tions npon llii'ii- i-i'_''lit to land or come into the state.'" An ""Ekiu V. United States, 142 U. ••" Woiijr Wiiifr v. United States, H. (•,:,]■ V„uii Viio TiriK v. United Ki.'V U. S. 228. HintPH, 149 U. S. 608; Lem Moon '17 See Law Quarterly Review. Vol. Hing V, United StatoH, l.'iS U. S. n.'lH; VI, p. 27. Vnmatnya v. KiHhcr, ISO U. S. 86 "s ficorg Meyer, Staat.srecdit, § 21."). (at IcaHt where be han not yet ac- ''n Act of December 3, 1849, Art. 7. qniri'd a jii-rrnanent and Hctlled resi- •»" PasHenger Cases, 7 ITow. 283; denre, Init probalijy irrespective of State v. S. S. Constitution, 42 Cal. thin limitatinn). .'^78; People v. CJompaguie Gencralc § 70ti ALIENS. 727 exception from this priuciple is recognised as to measures confined strictly to immigrants dangerous to health or morals, especially quarantine measures.''^ Nor is it, generally speak- ing, competent for the states to deprive resident aliens of any privileges accorded to foreigners by the comity of nations or to discriminate against them where equal treatment is guar- anteed by treaty .^2 § 706. Equal protection and equal capacity. — A similar prohibition rests upon the states in consequence of the Four- teenth Amendment, which forbids them to deny to any person within their jurisdiction the equal protection of the law. That with regard to aliens equal protection means equal justice and equal security rather than perfect equality*^ follows from the well established principle that the states may in accordance with the common law deny to aliens the right to own land,^'' unless such right is stipulated by treaty.''^ It would be unwarranted to infer from the peculiar power of the states over land tenures that the legal capacity of aliens is in other respects completely under their control, so that the duty of legal protection would apply only to such rights as the state chooses to allow aliens to acquire. It is true that the distinction between security of rights held, and capacity to hold rights, is recognized by the United States Revised Statutes. § 1977 gives to all persons the same security, while § 1978 gives only to all citizens of the United States the same right to inherit, purchase, lease, sell, hold and convey real and personal property. As to the right to engage in occupations the federal statutes are silent except that under § 1977 discriminative taxes, licenses and exactions of every, kind are forbidden. So an act of Pennsylvania (of June 15, 1897) taxing employers for every foreign born unnaturalized person employed by them was declared unconstitutional by the state and federal courts."*^ Transatlantique, 107 U. S. 159; -iL'Yick Wo v. Hopkius, 118 U. S. Henderson v. Mayor, 92 U. S. 259 ; 356 ; Ee Lee Sing, 43 Fed, Eep. 359. Chy Lung v. Freeman, 92 U. S. 275. « See § 1977 E. St. 41 New York v. Miln, 11 Pet. 102 ; 44 Fairfax v. Hunter, 7 Or. 602. Morgan's &c. Co. v. Louisiana, 118 -ts Chirac v. Chirac, 2 Wh. 259; IT. S. 455; Compagnie Francaise v. Hauenstein v, Lynham, 100 U. S. Louisiana State Board of Health, 483. 186 U. S. 380. 40 Juniata Limestone Co. v. Fag- 728 CLASSIFICATION AND DISCKIMINATION. § 706 Before the enactment of the federal statute above cited hxws were upheld requiring of aliens a special license fee for digging in gold mines,-*' and imposing upon them an inheritance tax.^'^ A state may undoubtedh^ require citizenship of its own officers, and by analogy, it seems, of all avocations involving a public trust,-*^ and the requirement is a common one in the rules relating to admission to the practice of the law. As to other occupations, the requirement of citizenship is uncommon, but is found occasionally, so in a statute of New York prescribing the qualification of chiropodists.^" It has been held in ^Maryland that the law may provide that liquor licenses shall be issued only to citizens.^ "If we assume for the sake of argument that Trageser has under treaties every right which a citizen could have, the answer is that no citizen of the United States can complain because a police regulation denies him the privilege of selling liquor even if the privilege is granted to other citizens." In view of the expressions as to the right to sell liquor, to be found in Crowley v. Christen- sen.- it is not improbable that the exclusion of aliens would be sustained by the Supreme Court; but Avith regard to other occupations, even those requiring special skill, or moral quali- lications, discrimination against resident aliens ought not to lie in the discretion of the states. The analogy of the disability to hold laiul, a survival of feudal conceptions, should not be ex- tended. It has, accordingly, been held in Michigan that citi- zenship may not b.e made a requirement for engaging in the avocation of a barber.-'' I'pon well established principles, the right to engage in foreign trade is beyond the control of the states. But it is also clear lliat the right to take up any other common oc- (Mii)ation cannot be ])arred l)y the states to resident aliens, por f)tlierwis(' ii stjit(^ might close all profitnlil" avocations to Icy, 1H7 Pa. VXi, •\- I-. \l. A. 442; struinents, see Eoby v. Siiiitli, \'M FriiHcr V. McConway & Torley Co., IikI. 342; Farmers' L. & Tr. Co. SI' Fi'd. Kep. 2r)7. v. C, & A. R. R. Co., 27 Fed. Kop. »T propio V. Nnglcc, 1 Cul. 232. 146; Shirk v. La Fayette, 52 Fed. riu' Aj 709. Non-resident U. S. citizens. — Have these clauses any ai)[)lication to non-residents.' It may be urged that the law of a state discriminating against non-residents a]iplies to its own citizens who may reside out of the. state, su that a non-resident who is a citizen of another state is treated exactly like a citizen of the first state undei* like citctiiustances. 'I'hiis marital rights and privileges nuiy be conlined to pai-tics marrying or living within the state creating the rights." Vet Avithin the United States residence and citizenship go so connnonly together that the courts may take cognizance of the fact that a discrimina- tion again.st non-residents is in many cases n discrimination against cit/ens of other states. So it has been held that non- resident creditors cannot be postpone! 1 to resident creditors in their right to share in the assets ol' an insolvent debtor.^- There is obviously no intrinsic relation between Hie fact of residence and the preference given. The same is trne of the general right to institute actions.^-' Otherwise, however, of a biw which ])rovides thai when Hie defendant is out of the state tin* statute of limitations shall \\eii thai a right of action wonld be extingnished, |)ei'lia])s for years, in 1h<' state whci'i' the jiai'lies reside, and .\-et if the ilefendant should li,. found in the stale whose la\v is nn(b'r consideration, it ni;i.\ br only in a railroad trai:., a suit could l»e sprung upon him after the claim had be^'ii forgotten'' Thert; is, c<)riset|ui-n1 1.\'. a rrlnlion betwiMMi residence and the •M.'oniH-r V. Klliot, is \\„\\. r,'.n -. i-l'.l;il('..l(. v. ('\inninf;li:iiii, \:VA V. S. lljiniiH, ."»! WiH. L'.")!; UnmngtoM v. !il7. • JrimvpMor, 40 Knn, 7.^0, -j; P;ic. i:!7, " < •lirimm;,' Ciiiiiil l'.;iiilv \. liow- n I,. \{. A. 'JH'J. .ly. !»:', I'. S. 7'-', lS7fi. § 710 NON-RESIDENTS. 731 runiiiug of the statute of limitations which makes a discrim- ination on that basis justifiable. And the question should be in every case : has residence any bearing upon the subject- matter of the law? Non-residents have a constitutional right to become creditors and they must have the usual rights to secure their claims, they may therefore not be forbidden to become or freely select trustees under deeds of trust, ^^ but executors and administrators, who are primarily officers of the court which has jurisdiction of the devolution of decedents' estates, may be required to be residents in order to be under the control of the court. ^"^ § 710. Non-residence relevant for police purposes. — In the matter of police legislation, the requirement of a valid reason for discrimination means that the fact of non-residence consti- tutes a special objection or danger. Even where this condition exists, the police power may give way to the freedom of inter- state commerce.^''' With regard to domestic business only, it has been held in New Hampshire that no discrimination in licenses can be made between the citizens of the state and of other states in the sale of shrubs or trees, or of lightning rods.^^ The same has been held with regard to peddlers ;i^ yet it may be argued that in a business regulated on account of the lack of fixed location a discrimination against non-residents should be valid.2o It is clear that a resident of the state can be held liable more easily than a non-resident for fraud or violation of police regulations. The exclusion of others than inhabitants of the state from the right to retail liquor, which has been sustained,^^ may be justified upon similar principles; the Supreme Court, how- ever, seems to sanction this discrimination upon the broader ground that the selling of liquor is not one of the rights of 15 Roby V. Smith, 131 Ind. 342. refuse peddling licenses to foreign- 16 Woerner, Administration, §§ ers. Trade Code § 56d. 230, 241. -1 Welsh v. State, 126 Ind. 71, iTLeisy v. Hardin, 135 U. S. 100. 9 L. R. A. 664; Mette v. MeGuekin, IS State V. Lancaster, 63 N. H. 18 Neb. 323, affirmed U. S. Supreme 267; State v. Wiggin, 64 N. H. 508, Court L. ed. Bk. 37, p. 934 (not 1 L. R. A. 56. officially reported) ; Kohn v. Mel- i»Ex parte Bliss, 63 N. H. 135. cher, 29 Fed. Rep. 433, 1887, where 20 Germany allows the authorities only residents of the county could to grant and by implication also to be licensed so that there was no dis- crimination between states as such. 732 CLASSIFICATION AND DISCEIMINATION. § 711 citizenship to Avhich the guaranty of the Fourth Article of the constitution applies.22 But a discriminating license tax placed on non-residents has been held to be invalid.^s § 711. Practice of medicine, etc. — Perhaps the state might confine the right to practice medicine to residents, though such a provision does probably not occur; on the contrary, an exemption from the requirement of a state license is not infrequently established in favor of non-resident physicians called into the state for consultation, and has been upheld as reasonable.-^ "With regard to attornej^s the requirement of residence would probably not be questioned; in New York a special provision has been deemed necessary to allow them to reside in another state. ^s Perhaps the provisions against bringing into the state armed bodies of men for, the protection of property might be sustained, though the prohibition does not extend to the employment of residents ; for the letting of services for purposes involving peace and safety is clearly an employment subject to control, and non-residents may be ex- pected to be more indifferent to the peace of the state than residents. The Report of the Industrial Commissions^ ques- tions whether the provision is consistent with the national constitution. In a number of states the laws relating to the admission to the practice of medicine provide for the issue of licenses to practitioners who have practiced for a stated number of years prior to the enactment of the law within the state. This constitutes a discrimination in favor of residents, which has been justified on the ground that a person may be competent to practice in a locality, with the climatic and sanitary con- ditions of which he is familiar, while without scientific training he rnay be incompetent to practice in another locality.^J It may also b(! said that with regard to resident practitioners established local reputation is sufficient protection against (|ua«'kery. The jjrovision has generally been upheld.^s 22 LoiHy V. Ilfinlin, 13;') U. S. 100. 20 V, 144. v.T Sinclair v. Stato, fiO N. C. 47. 27 Ex parte Spinney, 10 Nev. 323, •-•♦Sfaf.- V. Van Doran, 109 N. C. 328. MM; I'arkH v. Slatn Tnd., 04 N. E. 28 State v. Green, 112 Ind. 462, HC)'.'; Slate V. Hr.liftnirr. Ofi Me. 2.'57, 14 N. E. 352; People v. Pliippin, 70 r,'l Atl. (543. Mich. (5, 37 N. W. 888; Slate v. •T'CiMlc Civil Prcic. § 60. Creditor, 44 Kana. 565, 24 Pac. 346; §712 CORPOKATIOXS. 733 vi; 712. Proprietary resources of state. — Aii exception to the principle of equality between citizens of different states, or between residents and non-residents, is recognised in the mat- ter of the enjoyment of and participation in the resources of the state held by it in a quasi-proprietary capacity. Wliere a state institiition is supported by taxation of the people of the state, it seems just that the people of the state may be pre- ferred, and that they may have the benefits of the institution free, Avhile non-residents pay fees. So in state universities, or benevolent and charitable institutions. The same rule has also been applied to the natural common property of the state, fish and game, oyster beds, etc., in which a special interest of the inhabitants of the state is recognised by virtue of "citizen- ship and domicil united."-^ COEPOEATIONS. §§ 713-715. § 713. Inequalities due to special charters. — When corpora- tions were created by special act of the legislature, the charters not infrequently contained grants of special powers and im- munities, and different corporations, even of the same kind. Avere very apt to differ from each other in method of organiza- tion and corporate capacity. Under the system of general incorporation laws these inequalities are greatly reduced, but where the general incorporation laws were of narrow scope, one law providing for one kind of business or activity, another for another restricted class, inequalities were sure to result. So for a long time, in New York incorporation for business purposes required five original members, for manufacturing purposes only three ; so the laws for the incorporation of religious societies of different denominations alloAved different amounts of property to be held by each.^o Such inequalities between different classes of corporations may still occur. § 714. Discrimination in administration of justice. — When People V. Hasbrouck, 11 Utah 291, Jones, 1 Wend. 237; People v. 39 Pac. 918; Craig v. Board of Lowndes, 130 N. Y. 455; State v. Medical Examiners, 12 Mont. 203, Medbury, 3 Eh. I. 138; Chambers v. 29 Pac. 532. Church, 14 Eh. I. 398, 51 Am. Eep. 29 Corfield v. Coryell, 4 Wash. C. 410; Commonwealth v. Hilton, 174 C. 371, 1825 ; McCready v. Virginia, Mass. 29. 54 N. E. 362. 45 E. E. A 94 IT. S. 391; Haney v. Compton, 475. 3(5 X. ,L L. 507; State v. Corson •''o See § 466, supra. (X. .L L.) 50 Atl, 780; Kogers v. 734 CLASSIFICATION AND UISCKIMI.XATIOA'. § 71J. we eouipai'L' corporations wilh iudividuals it mast be borne in mind that there is a large bod}' of corporate law without analogy in the law relating to individuals, uamel}', that relating to corporate organisation and methods of action. ^Moreover; since the liability of corporations is limited, it would seem justifiable to subject them to special rules to enforce prompt payment of their debts. The decision in Gulf, etc., R. R. Co. v. EUis^^ is not contrary to this view, since in that ease the statute discriminated against railroad companies as debtors, and thus singled them out from other corporations in a matter on which the peculiar nature of the railroad business had no bearing. Special considerations, however, M'ould seem to apply to claims against insurance companies, which therefore may be singled out in legislation imposing penalties for vexatious delays in paying policies.'^- A statute of ^Mississippi, allowing an attorney's fee to be taxed against the unsuccessful appellant whenever an appeal shall be taken from the judgment of any eoiu't in any action for damages brought by any citizen of the state against any cori)oralion, was held to be unconstitu- tional. The legislature desired to avoid discrimination be- tween parties to the same action and therefo}-e allowed the attorney's fee. whether the apponl was tak(>n by the corjiora- tions or the citizens: but in doing so was held to have discrim- inated arbitrarily Intwen unsuccessful appellai^ts in dift'erent jH'tions according to the character of the defendant. ^-"^ If the attorney's fee hiid Itrcn ;iII<»\\(m| only ;iL:;iiiist the corporations it njight have Ix'cii contended with considerable force, that where a class of litigants is accorded the pi-ivilege of liiniled liability, its riglit 1o ;ippc,il mny be restrained by reasonable e(»n(litions not generally applicable to appellants;'" and so a discrimination ayainst eorporntions might be justified where liiey interpose vexatious oi- dil;itory defenses, though jx'rhaps not whi're they op|)ose a claim in good faith.-'"' ('oi-])ora1 ions beinp entitled to' ('(pial justice wilh individursls, every pi-o- -•> lar, f. s. 1.00. •■'■■• chicji^ru, St. l. & y. o. -r. Cn. ■"■- Union Confral Life liiHuraiicc v. MdSH, (50 :\!iss. fi^ 1. y. CliowiiinK, SO Ti-x. 054, L'O H. ••'• TImh view, liowincr. was iml '.•HU, 24 L. H, A. r,0|; i'^idrlily tak.-ii l.y fin; MissisHippi court. M.ii. Lifi« FnK. Co. V, .Mcttirr, ISfi ■!■■• Ildckinjr Valloy Coal Co. v. r. S. 308; FarnuTs' & .Mcn-lianls Uohhof, .I.S Oh. St. 12, 29 1>. I{. A. lux. '•(,, V, DoImu'v, (\2 \H». L'13, 8(5 .".SO. \ w. Ki-n, s. r. I HO IT. s. :!ni. i: Uiiv. F.!. V'l, uiil, note. ^ 715 CORPORATE RIGHTS. 735 cedural discrimination should be based on soiui' eonsideration peculiar to the nature of the body corporate."" § 715. Corporate capacity and vested rights.— In the field of the police power, the chief point in which corporations differ from individuals is their limited capacity. They can engage only in such lines of activitj^ as are marked out by law, they cannot go beyond the objects set out in their charter, and under some jurisdictions cannot under one charter combine diverse and distinct objects.^" The legislature may at its pleasure vary or increase these limitations, and in this respect a very important inequality exists between corporations and individuals. It is, on the other hand, clear that where a corporation has, in accordance with its charter powers, invested funds in some enterprise, it is entitled to the protection of the law in the enjoyment of its property, and in its dealings with others incidental to such enjoyment, in the same manner .as indi- viduals. It was held in Arkansas and Rhode Island that laws regarding the mode or time of payment of wages may be enacted Avith regard to corporations, or special classes of cor- porations only, under the reserved power to alter corporate charters ;^^ but the opposite view is taken in other states. ^^ The Supreme Court of the United States strongly supports the doctrine that corporations as owners of property may not be discriminated against. "It is now well settled that cor- porations are persons wnthin the meaning of the constitutional provisions forbidding the deprivation of property without due process of law, as well as a denial of the equal protection of the laws. "40 In the different railroad rate cases the position oC the state derives no strength from the fact that legislation i ; directed against corporations, the corporate propert.y being treated as the property of the shareholders. Moreover '"the power to enact legislation of this character cannot be founded 36 The legislature may recognise v. Browne & Sharpe Mfg. Co., 18 R. the local influence of large corpora- T. 16. tions by allowing a change of venue so Johnson v. Goodyear &c. Miniu;:r from the place where they keep their Co., 127 Cal. 4, 59 Pae. 304; Braec- principal office; Snell v. Cincinnati ^-ille Coal Co. v. People, 147 III. 66. Street R. R. Co., 60 Oh. St. 256, 54 -lo Covington &c. Turnpike Co. v. ^^ E. 270. Sandford, 164 U. S. 578; also GuH ^T Supra, § 360. &c. R. Co. v. Ellis, 165 U. S. 15(\ 38 Leep v. St. Louis & I. M. R. Co., 154. 58 Ark. 407, 23 L. R. A. 264; State 736 CLASSIFICATION AND DISCEIMIXATIOX. § 71G upon the mere fact that the thiug affected is a corporation, even when the legislature has power to amend or repeal the charter thereof. The power to alter or amend does not extend to the taking of the property of the corporation either by confiscation or indirectly by other means. "^^ In every case where a restraint is imposed on corporations alone, the question ought to be: would the evil or danger sought to be met be exactly the same if the owner of the business or property would be an individual ? If so, the discrim- ination is unjustifiable. But if some kind of business may he subjected to special regulations by reason of its special ( ircumstances, and if such business happens to be carried on n:ily by corporations, it is no objection that the statute does iM.t speak of individuals, so in the case of the railroad or insur- business.'*^ FOREIGN CORPORATIONS. §§ 716-720. § 716. Foreign corporations not engaged in conunerce. — A sharp distinction must be made between such foreign corpora- tions as do not carry on commerce with other states or nations, and such as do. Foreign corporations which do not carry on commerce : insurance companies, banking, mining and manufacturing coi-- jjorations, may be forbidden to do any business within the stat(\ ••it her thrf)ugh their officers, or through agents or brokers, or Ihoy may be admitted on such conditions as the state chooses 1o inipose.^^ The state may discriminate against them in favor of domestic <<»rporatioiis (U)ing the like business, and may impose addi- liomil restraints as a condition of permitting a continuance of *• Lake Rliore & M. S. R. Co. v. otlicr corporatioiis " was sustained as Hmitli, 173 U. S. 084, 01)8. to niilroad corporations. Pittsburjih ♦2 Hoo liallai"! v. MlNBiHsippi Cot- &c. R. R. Co. v. Montgomery, If)!! ton Oil Co. (MisH.), :M Sr.n. FiXX liul. 1; Tiillia v. Lake Erie & W. Ri In thi« case it was hold iinconHtitu- R. ('o., 17.1 TT. S. 348. tWinal to mn^'Io out ('(trporatioiiH for •••'' lloojjer v. California, LIS IT. S. ilio ubrojjalion of the fellow servant MR; Nutting v. Massadiusotts, IS.T rule, for uh to that rule, corporate V. S. nn.H. The judtrment of an ad- and individual employers stand rniniHirative oflicor in ilclcrmiiiiii)^ KJiko; otherwine if railroad corpora- the existence of statutory condilions ,, |..,,| },p,,n HJn^ded out, their may tlicreforo l»e mailo conclusive. I lielnjj eH|iecially hazardous. Provident Sav, Tiifo Ass. Soc. v. In Indiana the abrogation of the Cutting', 181 Mass. 201, (5R N. K. 43.3. dc with regard to "railroapri-ly within the state, as in the case of a railroad company seeking to extend its line into another state. Can this be done without authority from the state? While the freetlom of interstate commerce is not satisfied by the plea that residents are subji-cted ti) the s.iiiie bunb'ns n^gnrding f competing,' r:iilroal)iiis v. Slielliy Connty Tax- oxorrinc of powers on the part of inj; DiHtrict, 120 U. S. 489. § 719 FOREIC.N CORPORATIOXS. 7:10 it is a question of exercising the power of eminent domain, -"^ but the practice is the same as to extension of railroad lines into other states generally. "Without objectio,!, so far, from the federal authority, whether legislative or judicial, it has become customary for a state adjacent to the state creating a railroad corporation to legislatively grant aiithority to such foreign corporation to enter its territory with its road, to make running arrangements with its own railroad, to buy or lease them or to consolidate with the companies owning them. Some- times, as in the present case, such foreign corporation is declared upon its acceptance of prescribed terms and condi- tions, to become a domestic corporation of such adjacent state, and to be endowed with all the rights and privileges enjoyed by similar corporations created by such state. "'^ § 719. Foreign railroad companies. — Many states provide that foreign railroad companies may enter the state upon filing their charters or becoming subject to the law^s regarding domestic corporations.-'' Practically these are conditions for doing interstate business ; yet they have never been ques- tioned.*^ Of course, the United States may by act of Congress grant the like authority, and this has been done generally for telegraph companies establishing their lines along post roads.'^ But it cannot be said that the non-action of Congress must mean freedom from any license, for it is well established that lands cannot be held in corporate capacity without the authority of some state creating the corporation, and the prin- ciple of freedom from the requirement of license being neces- sarily broken through, it seems illogical to say that one state must accept the license or authority of another state when such authority can have no extra-territorial operation except by comity. 3 As to maintaining ferries be- •* St. Louis & S. F. R. E. Co. v. tween two states, if the right in James, 161 U. S. 545, 555. both is a franchise, see the remarks ^ Stimson American Stat. Law, IT, of the Supreme Court in the case of 8881. the Gloucester Ferry Case, 114 U. S. " See Commonwealth v. Mobile & 196. In that case no difficulty was Oh. R. R. Co., 23 Ky. Law Rep. 784, felt since in the opinion of the Su- 54 L. R. A. 916. preme Court the running of ferries ^ Act of July 24, 1866, Western across the Delaware River was free L^nion Tel. Co. v. Pensacola, &c., Co., under the laws of Pennsylvania. See, 96 U. S. 1. however, Douglas' Appeal, 118 Pa. St. 65. 740 CLASSIFICATION AND DISCRIMINATION. § 721 § 720. Fixed corporate property within the state. — The Su- preme Court reeoguises a distinction between doing busi- ness in a state on the part of a foreign corporation, and isohited commercial transactions entered into from outside of the state;* but since the right to keep an agency in the state is free from state restraint, it seems that the distinction ought to be between doing business with and doing business without fixed corporate property witliin the state. If interstate com- merce can be carried on in such a waj^ tliat the corporation has merely agencies in the state, and does not hold property there, it cannot be placed under the requirement of a license. But the holding of property is controllable by the state. The case is analogous to that of aliens: they do not depend upon the states for their right to carry on foreign commerce with and in the state ; but without state authority they cannot hold land, though the land be used in connection with such com- merce." DISCRIMINATION BASED ON DIFFERENCE OF ACTS OR OCCU- PATIONS. §§ 721-738. § 721. Police power may singie out particular evils. — While an ideal or perfect system of equality might require a legis- lative treatment of all public dangers by measures exactly ade- quate 1(» tlieir menace, this is manifestly a standard which it is impossible to realise. The police power has dealt and deals with evils as public sentiment requires, and that other evils of a different kind affecting different interests and having (lifTei-cnt consequences are not drawn within the range of legis- lation, or that they are regulated and restrained in a different manner and treated with greater severity or leniency, is not deemed a sufficient reason to invalidate a measure otherwise lefjitiniiile, confining itself 1o some ii.itticiilnr danger. So the absence of any legislation against gambling would be no argu- ment against li(|Uf»r legislation, or vice versa. As long as the ••vil.s nre sufficiently distinct, no question is made of the validity of a partial or unequal exercise of Hie polieo power. ^" •Cooper Mfg. Co. v. Ferguson, tlic domestic jurisdictiou leave part- 113 U. 8. 727. nerships unregulated; State v. Cadi- •» In the criHO of jiarlnershipH it gan, 7.3 Vt. 245, 57 L. R. A. GOG. rnnnot make any difTfrriu-e under i" Sen r. g. State v. TTogrpivt-r, ir)2 tho InwH of whirli wtntf they are or- liid. (\n2, .'5.'^ N. E. 021. Riiniwd, n« long hh the statutes <>f g 7l);>, DlFFEREXt'i:: OF ACTS OR OCCUPATIONS. 741 § 722. Police power may single out one side of a relation. — Moreover for the purposes of the police power the same trans- action may have very different aspects as it concerns one or the other party thereto ; with reference to the one it may be a matter of business or sufficiently public in character to become a legitimate interest of the community, while from the point of view of the other party it may be of a social or private char- acter. Thus engaging in or exhibiting a prize fight is different from witnessing it and prostitution differs from visiting a pros- titute, and while the law may take cognisance of the private side of the act,^^ it need not do so. Thus in the matter of intoxicating liquor, the law deals with traffic and not with consumption. The purchaser is not even regarded as a par- ticipant or accessory to the offense of selling.^ 2 'pj^g ^^[^ ^f legislation is to reduce consumption, but legislation can reach consumption most efficiently through traffic, and consumption becomes important only where it produces open or habitual drunkenness. The keeper of a gambling house or lottery need not be a gambler, but he may be singled out for punishment while the person who gambles may be left unpunished. ^^ It is legitimate for the police power to attempt to r(?strain tempta- tion and scandal instead of the individual acts constituting the real evil, because the former and subsidiary evil is distinct, although the policy results in a different treatment of the two parties to the same transaction. The difference between pro- fessional or business dealing and private acts affords full jus- tification for this discrimination. § 723. Discrimination between similar evils. — Where the danger or evil presented by different acts or conditions is substantially the same, and legislation does not apply to them alike, there ought to be some reason for the discrimination. Thus where a specific form of danger requires specific remedies not otherwise applicable, legislation applying specially to this danger is not only justifiable, but, if there is to be regulation, inevitable. Thus the laws requiring certain safeguards in the operation of railroads could not be made to apply to mines, or "See III. Crim. Code, § 225;f^ (Tenn.) 135, 1858; but in Tennessee State V. Botkin, 71 la. 87. , the prevailing doctrine was subse- 12 State V. Cullins, 53 Kans. 100; quently adopted. Harney v. State^ Commonwealth v. Willard, 22 Pick. S Lea 113. 476; State v. Rand, 51 N. H. 361. i3 State v. Woodman (Mont.), 67 Contra: State v. Bonner, 2 Head. Pac. 1118. 742 CLASSIFICATION AXD DLSCEIMINATION. § 724 vice versa. The validity of legislation restricted in this respect to either is therefore not questioned.^'* Where dangers and evils presented in different forms and relations are so similar that they may be dealt with by like restraints and obligations the chief reason for legitimate discrimination lies in the differ- ence of degree to which the public interest is enlisted. The private law is on the whole independent of this consideration ; thus fraud is dealt with irrespective of form or degree by civil causes of action for damages, while criminal or police legislation regarding fraud singles out certain practices. It must be regarded as a considerable advance in police legis- lation, if a general law comprehensively defines the various forms of adulteration practised with regard to articles of con- sumption, even though similar frauds in other kinds of mer- chandise fail to be reached by the statute.^^ The same is true of other phases of police legislation, whether concerning public health, safety or morals, or economic interests. The common hiw in a general and abstract manner deals with conditions obnoxious to the public good (nuisance, conspiracy, etc.), but the generality of the restraint is at the expense of certainty and definiteness; it is generally inadequate to cope with evils arousing the public interst which are not so flagrant as io amount to crimes, and it affords no preventive relief. The police power finds its peculiar province in the conditions and measures which the criminal law fails to rv^ach and pro- vide for, and which require a more particular definition than tlie criminal law affords. It is here that discrimination be- conu'S necessary and that the danger of partial legislation arises. § 724. Abstract classification according to degree of dan- ger. — Th(! method of discriminaliou most in accordance with the spirit of constitutional equality is that of abstract deter- mination, where it can be applied. This would mean thnt the condition is defined by reference to the public interest which it affects and lln' degree of dnnger Avhich it imports, so that all otlier dangers of the same kind and degree would be cov- ><"Tlio Hpwific roprulatidiiH for tioiiw :im- not imposed upon other one kind of bnnincHH, which niriy he bi)HiiicH.s of ;i dilTorcnt kind," Soon necoMinry for the protection of the Hinfr v. Crowley, 113 U. S. 703. jiiilinr-, can never he the just groiinfl ""' See § 280, supra. of conipliiint Ijccauae like rcetric- § 725 ABSTRACT CLASSlFigATION. 743 ered by the definition. A law which should provide that all articles made of compound material, where the compound is not known in the trade by a distinctive name, must, if exposed for sale, be labeled in such a manner as to show the in- gredients and their proportion, would satisfy this standard. Manifestly few police statutes are framed in such a general wa'y.^^ An approach to such generalisation may, however, be found where the law defines by numbers or other measurable quantities. Where the degree of danger depends upon the extent to which some practice is carried, this would seem to be a just basis of discrimination. But any such limitation by reason of being positive has an element of arbitrariness in it, which is inevitable and yet has furnished a ground for con- demning the measure. Thus some statutes for the protection of laborers have been confined to establishments in which the number of employees is ten or more, and it has been asked what difference it can make whether the number is nine or eleven.^ ''^ But such reasoning would be destructive of the distinction between full age and infancy, and of every other positive limitation in law. The size of a business may have no relation to the evil contended with, as e. g, in the regula- tion of charges,!^ but where it has, a positive limitation on that basis should be regarded as unobjectionable.^^ This has been recognised by the Supreme Court with reference to safety legislation for mines, which applied only to mines in which more than five men were employed at one time.^*^ § 725. Classification by social or economic groups. — In many cases, however, it is impracticable to define the required degree of danger in abstract terms, while it is easy to indicate it by reference to the particular business or other concrete 16 A provision of so sweeping and license fees, held arbitrary and un- general a character has even been constitutional, State v. Mitchell treated as constitutionally objection- (Me.), 53 Atl. 887; but quere able. Dorsey v. State, 38 Tex. Cr. whether it is not the irresponsibility Ap. 527, 40 L. E. A. 201. See § 41, of the small dealer which calls for supra. police regulation. Certainly the 17 State V. Haun, 61 Kan. 146. criticism, that the selection of the 18 Cotting V. Kansas City St. Y. amount of $25 rather than $24 or Co., 183 U. S. 79. $26 shows the arbitrariness of the i!> A classification of peddlers ac- rule, is untenable, cording to the amount of taxes paid -o Consolidated Coal Co. v. Illinois, on the stock of goods, residents pay- 1 85 U. S. 203 ; Daniels v. Hilgard, ing $25 or more being exempt from 77 111. 640. 744 CLASSIFICATION AND DISCRIMINATION. § 726 form in which it appears. The dangers with which the police power copes are not divided into as many different kinds or degrees as there are economic or social groups or forms of action ; but these groups or forms are distinguished by a cer- tain uniformity of practice, in which an evil may assume special magnitude which calls for regulative action by the state. Therefore there is a rough correspondence between group and degree of danger, and the greater degree of danger peculiar to a group will justify its being singled out for police restraint. Thus it is generally conceded that the operation of railroads is attended with so much risk of injury that special rules of liability are justifiable, and it is no objection that the danger is not or cannot be defined abstractly, Muthout refer- enda to the class. It may, however, be that the particular group is singled out simply because it happens to arouse public atten- tion, or because the restraint may serve some ulterior interest by which the business is affected. Classification on the basis of social or economic groups thus easily becomes discrimina- tion in the objectionable sense, and its validity is then ques- tioned. The constitutional problem is one of the utmost imjiortance: Is classification legitimate? Is it consistent with i'<|Mality? Classification is undoubtedly a legitimate legislative fiuictinii. but it is also clear that it can be abused in such a manner as to produce substantial inequality and favoritism or oppression. In consequence of this liability to abuse, legis- lative classification has in recent times been subjected to a strong judicial control ;-^ and it is necessary to inquire whether tliis control has proceeded upon definite constitutional prin- cii)l('s difl'tTcntiating lawful from unlawful discrimination. § 726. Synopsis of decisions. — It will be of advantage to give a brief syn()i)sis of the ])rincipal cases in which the question of discriniinatif)n has been raised and decider! ; most of these cases liave been adverted to and commented U])on in other connections. § 727. Legislation for the prevention of accidents. — Laws have lieeii ii|>lir|(| creiiling, willi regard to raiii'owd eonipMiiies only, rules of liability for injury to ])erson or property which 2> K*>r one of tlin pnrlicst cnsPH in of|n;il nalinnl rifjhts, soo People v. wbirh cluKH loKiHlufion (an art. for- Walhritl^re, Cow. (N. Y.) r>]2, bidding attorncyH to buy cIiohch in ISL'C); Vnit the court diHpoHCil of this nrtion) wan iui[)ugne(l as contrary to coutention with a few words. § 727 SINGLING OUT RAILROAD COMPANIES. 745 do not exist at common law : in case of injury through acts of fellow servants ;22 in case of live stock killed or injured ;23 in case of fire caused by sparks from locomotives.^-* The special risk incident to the operation of railroads is held to justify the imposition of special duties. On the other hand, a boiler inspector's act may exempt from its operation railroad loco- motives and railroad engineers,^^ the discrimination being perhaps justified by the greater difficulty in carrying out th? inspection where engines are constantly moving from place to place. For obvious reasons it is legitimate to distinguish between longer and shorter roads in the matter of safeguards against certain accidents which are more liable to happen on the for- mer.26 By analogy, legislation for prevention of accidents in mines may except those which employ a very small number of miners.^'^ The allowance of extra costs or attorney's fees to the suc- cessful plaintiff in actions against railroad companies for injuries is sustained in some states^s and condemned in others.29 The United States Supreme Court upholds this dis- crimination,^*^ and in this connection suggests a distinction between special legislation against railroad companies relating to the recovery of claims in general, and relating to the recov- ery of claims which are in some way connected with the haz- ardous nature of the railroad business. The railroad company may not be discriminated against in so far as it is merely a 22 Missouri Pacific R. R. Co. v. Mower, 16 Kan. 573; Johnson v. Mackey, 127 U. S. 205. Chicago, M. & St. P. R. R. Co., 29 23 Missouri Pacific R. E. Co. v. Minn. 425, 13 N. W. 673; Illinois Humes, 115 U. S. 512; Minneapolis Central R. R. Co. v. Crider, 91 Tenn. & St. Louis R. R. Co. v. Beckwith, 489, 19 S. W. 618; Gulf, &e., R. R. 129 IJ. S. 26; Minneapolis & St. Co. v. Ellis (Tex.), 18 S. W. 723, Louis R. R. Co. V. Emmons, 149 U. 17 L. R. A. 286; Peoria, &c., R. R. S. 364. Co. V. Duggan, 109 111. 537; Per- 24 St. Louis & San Francisco R. kins v. St. Louis & Iron Mountain Co. V. Mathews, 165 IJ. S. 1. R. R. Co., 103 Mo. 52. 25 State V. McMahon, 65 Minn. 20 Wilder v. Chicago, C. & W. INF. 453, 68 N. W. 77. R. E. Co., 70 Mich. 382; South. 26 New York, N. H. & H. R. R. & N. Ala. R. R. Co. v. Morris, 65 Co. V. New York, 165 U. S. 628. Ala. 193. 27 Consolidated Coal Co. v. Illi- so Atchison, &e., E. Co. v. nois, 185 U. S. 203. Matthews, 174 U. S. 96. 28 Kansas Pacific E. R. Co. v. 74G CLASSIFICATION AND DISCEIMINATIOX. § 728 debtor.^i The recovery of debts as such belongs to the admiu- istratiou of justice aud the distinction drawn by the court may be taken to mean that in the administration of justice perfect equality between debtor and creditor, or between the two parties to litigation, must be observed,22 ^^yIuIb in the exercise of the police power discrimination is legitimate if its purpose is to induce greater care against accident. •^•'^ $ 728. Sanitary legislation. — A statute of Illinois^^ made it unlawful for more than six persons to occupy the same room for sleeping purposes at the same time in any lodging house in any city of 100,000 inhabitants or more. The act was de- clared unconstitutional because it discriminated between keep- ers of lodging houses and keepers of inns and boarding houses,^-'* and the statute was thereupon amended so as to include these classes.^^ The court said : "If intended as a measure to protect health, tlie act should have been directed against the evil which threatens to introduce sickness or dis- ease, whether found in a lodging house, boarding house or hotel, and as its penalties are not so leveled, it can l)ut be regarded as partial and discriminatory legislation." But if a lodging liouse is one in which persons, though strangers to t'ach otlit'i', are allowed to inhabit one common room,"*^' the evil attempted to be remedied hardly seems to extend to hotels or boarding houses. The obnoxious condition may prevail in 3> Gulf, &(•., R. R. Co. V. Ellis, 165 sured are entitled to special consid- U. S. ]')(). oration. The Supreme Court of the S2 See, however, as to corporations, United States upholds also legisla- 8 714, supra. tion granting an attorney's fee 33 Sf o Randolph v. Builder's, &c., against an insurance conij)any iinsue- Supply Co., 106 Ala. ."jOl, 17 Sou. rossfully defending an action for 7.T1 ; ('hair Co. v. Runnels, 77 Mich, total loss in case of fire insurance. 104, 43 .\. W. 1006. As to penalty I'lirincrs' & Merchants' Insurance for not paying promptly life in- (Jompany v. Dobney, 1S9 U. S. 301, Muninco ixdicies see Union Central S. C. below, 62 Neb. 213, 86 N. W. I>ifp InHurancc Co. v. Chowniiig, Sfi 1070. The decision in Gulf, &c., R. Tm. 654, 26 S. W. 082, 24 L. R. A. h\ <(.. v. Kills is not referred to. 504; Fidelity Mat. Life Ass'n. v. -n April 21, 1899. MottiiT, IHf) U. H. 308. If the delay -i'' Bailey v. People. I'.id 111. L'S, 60 \n vcxntiouH anri not just i fled by a N. IC. 98. iKinn fide defence, fhf discriniina- "•'• L.iws 1901, j). 304. • inn aK"i'i)*t ''f'' insHrance coinpa- ■'• Knglisli I'nMii' Health Act, § nif-n neemH juNtiflablc since claims 89. nitninnt them on the part of the in- § 729 DECISIONS REGARDING DISCRIMINATION. 747 private tenements; but the discrimination between the busi- ness of letting rooms for lodging and conditions of private living is a legitimate one under the police power, and would probably be respected by the courts. § 729. Public order. — Where a permit was required for using the public streets for processions, an exception made in favor of funeral processions, lire companies, state militia and political parties, was held to constitute a discrimination fatal to the whole regulation.-"^ In this case there; was also an unlawful delegation of uncontrolled discretion to adminis- trative authorities. A similar discrimination between different kinds of processions in IMassachusetts was not questioned. •"^'^ A statute of Illinois forbidding the use of the nntional flag for advertising purposes made an exception in favor of art exhibitions. It was declared unconstitutional, partly upon that ground.'io The fact that an art exhibition appeals to higher sentiments than mercantile advertising might have been held to justify the discrimination. § 730. Legislation against gambling. — A statute of ^Missouri was upheld which punished bookmaking and pool selling on events occurring beyond the state.'^^ The court said that book- making on events occurring within the state was not thereby sanctioned, that a police statute need not necessarily deal with the wdiole of a recognised evil, and that the statute did not strike at a class of persons, but at a class of transactions. So an act was sustained in Illinois punishing bookmaking and pool selling, and containing a proviso that it should not apply to the actual enclosure of a fair or race track association during the time of the meetings, the court holding that the bets made on the race tracks were left to the prohibition of the general statutes.^ 2 j^ Missouri a discrimination in favor of bookmaking on race courses was first condemned, and later on, upon a very slight distinction, sustained.'*^ If the evil of 38 State V. Bering, 84 Wis. 585. 42 Swigart v. People, 154 III. 284. 30 Com. V. Plaistecl, 148 Mass. 375, -t3 State v. Walsh, 136 Mo. 400, 37 19 N. E. 224, 2 L. R. A. 142. S. W. 1112, 35 L. R. A. 231; State v. loRohstrat v. People, 185 111. 133, Thompson, 160 Mo. 333. 54 L. R. A. 57 N. E. 41, 49 L. R. A. 181; sec § 950; the act of 1S97, which was up- 383, supra. held, diifered from the act of 1895 ■ti State V. Burgdoerfer, 107 Mo. 1, in the fact that it required a license; 34 L. R. A. 846. it really added therefore to the dis- 74S CLASSIFICATIOX AND DISCEIMINATION. § 731 betting can be reduced by localising it, this should be held a sufficient ground for discrimination. The Criminal Code of Illinois-*^ pimishes the making of contracts to have or give the option to sell or buy at a future time any grain or other com- modity, stock of any railroad or other company, or gold. The Supreme Court of Illinois, treating the statute as referring only to the specified articles of property, sustained it, because the remedy need only be as comprehensive as the evil the law designed to remove. "It is not indispensable, in order to be constitutional the section should embrace all kinds of personal property Avhether such kinds of personal property'' had usually or commonly been the subject of option dealing or not."^^ § 731. Legislation against fraud. — It is not heid to be unjust discrimination that the law singles out for punishment fraud connnitted against or in a particular kind of business.'*'^ Thus tlie law may punish those who by deception obtain board or lodging in any hotel, while it has no similar provision for the ju-otection of boarding houses.^^ The law may single out bankers for punishment for receiving deposits when in- solvent ■,^^ but it may not make a separate crime of offenses committed against a particular bank by its officers.^'' The law may forbid the use of harmless coloring matter in oleomar- garine, while allowing it in butter.'^o If the practice of coloring winter butter has been carried on so long as to be regarded legitimate, it may be said that the public is not defrauded therel)y. si 732. Licensing occupations. — In Ohio an act which re- quired all tliosi! engaging in the business of plumbing to secure n license but pi-ovided that in case of a firm or corjioration the examination and licensing of any one member of such (irm or the manager of the corporation should satisfy the re- riiminalion ai-corcliiic to tlic phici- 1 r.iiuliiloiit i)r:uiii'es, 111. ('r. Coile the fiirlliiT (liHcriniiiintioii of ]>cr- 117, ILT)!). Honnl uclcction. ••t Siutc v. Khifrslov, 108 Mo. 13.'5, **8 130. IS S. W. 904. <5Hooth V. People, ISr. III. 4.1, r)7 is Baker v. Stale, r>\ Wis. iUJS, I'J N. E. 708; tlie Siipr<>me Court, of N. W. iL' ; .Meadowc-roft v. People, tho United Sfnfcn in RUHtnininjr MiIh 3(13 m. r^i]^ 45 n, ]i]. 303. S L. E. A. 677 ; upheld in Nebraska •> Getting v. Kansas City St. Y. for purposes of taxation, Eosen- Co., 183 U. S. 79. bloom V. State, 89 N. W. 1053, 57 6 Carter v. Coleman, 84 Ala. 256. L. R. A. 922 ; also in Pennsylvania, " Youngblood v. Birmingham New Castle v. Cutler, 15 Pa. Super. Trust & Savings Co., 95 Ala. 521, 20 l.'t. 612, 625. L. E. A. 5S. •■! State V. Garbroski, 1 1 1 Iowa 496; 56 L. E. A. 570. r50 CLASSIFICATION AND DISCRIMINATION . § 734 An act allowing a higher than the regular rate of interest to pawnbrokers was held valid in California."' The strong preponderance of opinion is in favor of the valid- ity of legislation making an exception from the general usury laws in favor of building and loan associations on the ground that the co-operative nature of their plan of business makes the general objections to usury inapplicable.*^ 5j 734. Anti-trust legislation. — The provision contained in many statutes against trusts, that the law is not to apply to agricultural products or live stock, while in the possession of the producer or raiser, was sustained in Texas on the ground that in the ease of producers, etc., who must dispose of their products quickly and who have no facility for combination, the conditions are different from those affecting the sellers or l)uyers of other articles.!*^ The Supreme Court of the United States, however, declared the Illinois anti-trust act unconsti- tutional because it contained a similar exception," holding that the classification bore no reasonable or just relation to the acts prohibited. A wider power of discrimination was conceded unde-r the taxing power than under the police power. Tht' argument relied upon by the Supreme Court of Texas to justify the exception Avas not referred to by the Supreme Court of the United States. j 735. Labor legislation. — An act requiring glass screens for tlif protection of motormen on electric cars only, while no similar protection need be furnished on cable or steam cars, is siistained in Ohio.^^ The court says it cannot judicially know that similar means «>C i)rotection are required on cable cars. The Supreme Court of llic rnilcd States has sustained an act limiting the lunc p,nni.i ••>5 Vogel v. Pekoe, IH? 111. 339. dnrtriiif, Slat«! v. Peel Splint foal •'"' Hocking,' Valley Coal Co. v. Eos- Co., 36 W. Va. 802. ser, 53 Oh. St. 12. •oOodHinrles v. Wiseman, 113 Pa. 37 Grand Rapida Chair Co. v. R>in- Rt. 131 ; earlier West Virginia doc- nela, 77 Mich. 104. trine, State v. Ooodwill, 33 West 38 r.ulf, &c., R. R. C„. v. Ellis, 165 Va. 179; State v. Fire Crock, &c., U. S. 150. Co., 33 W. Va. 188; Rtato v. an Hnrding t. People, 160 111. 450. I/f.nmiH, nr. Md. 307; Eronr v. Peo- ple, 1-11 111. 171. ^ 73(5 PRINCll'LES DEDUCIBLE. 753 joining labor unions, or to discharge or threaten to discharge them ou account of such connection, have been declared un- constitutional in i\Iissouri and Illinois partly as interfering with the free right of contract, partly because discriminating between union and non-union men.^^ It is not easy to see how if the legislature has power to protect membership in trade unions it can do so otherwise than by an act applying specially to members of unions. If there is a discrimination it consists in this that the employer may not threaten to discharge a man because he is a member of a union, but may threaten to dis- charge a man because he is not a member of a union. The argument therefore is in reality that if you give one class of men some protection, you must give another class not the same but a corresponding protection. The act to be equal in spirit would have to provide that no employer shall threaten to discharge a laborer either because he is or because he is not a member of a union. This is carrying the principle of equality one step beyond its usual application, since the legislature in dealing with one evil, is compelled to deal also with a different evil which may not have naade itself felt as such. § 736. Principles deducible from decisions. — The foregoing synopsis of decisions shows the law in a formative state : the courts assert the power to condemn classification that seems unjust, but have not in their arguments proceeded much be- yond general phrases of denunciation. It is easy to find very sweeping expressions in favor as well as against the power of classification. The Supreme Court of the United States has said "the specific regulations for one kind erf business, which may be necessary for the protection of the public, can never be the just ground of complaint, because like restrictions are not imposed upon other business of a different kind,"*^ and: ''Indeed, the very idea of classification is that of in- equality, so that it goes without saying that the fact of in- equality in no manner determines the matter of constitution- ality. "''^ Yet within three years after the decision last cited the court condemned two important state statutes on the 40 state V. Julow, 129 Mo. 163; 4i Soon Hing v. Crowley, 113 TT. Gillespie v. People, 188 111. 176, 58 S. 703, 1885. N. E. 1007. 42 Atchison, &e., E. Co. v. Mat- thews, 174 U. S. 96, 106, 1899. 48 754 CLASSIFICATIOX AND Dl!:>CKmJXATlON. § 737 ground of unconstitutional classification.^^ The Supreme Court of Illinois, in tlie case of Vogel v. Pekoc,'*^ in which it sup- ported a legislative classification, explained a long line of previous decisions against classification as finding sufficient support in the violation of other constitutional rights. § 737. Systematic legislation. — The. statement that the rem- edy should be coextensive -with the evil has been used by the same court to sustain a classification in one case, and to annul a classification similar in principle in another.-*^ Fluctuations and inconsistencies are inevitable Avhen a new constitutional principle is in process of development. What will be the final result of this development? The stringent exercise of judicial control will tend, and is already tending, to bring about more systematic methods of legislation. If legislation is piecemeal or haphazard, the danger is inevitable that legislators may be influenced by the clamor of interests without ascertaining the existence of conditions requiring special legislation, or by a misapprehension of those conditions due to a skilful presenta- tion of one-sided and partial views. Systematic legislation means that the whole range of the danger or evil is presented and that the classes excepted as well as those covered are taken into consideration. If in a comprehensive codification of labor laws particular trades are specified as requiring special treatm(»nt, there is a certain guaranty that the discrimination is not without valid reasons. The guaranty would be still gf(»ater, if the details of classification were left to administra- tive regulation inider adequate securities for the judicial and impartial exercise of such poAver;-*" but the principles of such ('Jassifieation would have to be most carefully defined, in order 1(» avoid the fatal objection of an unconstitutional delegation of Icgislalivc powers.'" 15iit it woiilil ])e decidedly premature t(» say that it is tlie constitution;! 1 duly of the legislature to ah the specification Co., 1K3 U. S. 79; Connolly v. Union of |i;uli. vW; HO §§ IG, mi), 105d, 105k; but *f' Hooth V. People, ISn 111. i:i, r.7 tills doleyated power is not subject N. K. 70K; Bailey v. People, HIO III. |,, jii.li<'i;il .•ontrol. 28, no N. E. OH. 17 See e. jr. Mass. Rev. L., cli. lOn, ♦oThe (Jenn.'in Trade Code Imvcs § TiS. § 738 FOKMULATION OF PKINCIPLE. 755 § 738. Formulation of principle.— The constant and imme- morial practice of legislation sanctions regulations and re- straints confined to particular classes of business. Nearly the whole of the former English economic legislation consisted of statutes each of which dealt with one trade only, and the early American inspection laws singled out special classes of merchandise. It has never been intimated that all possible forms of mercantile fraud must be dealt with or none, or all sanitary dangers or none. It has always been characteristic of English legislation to proceed tentatively, step by step, and many important reforms could have been accomplished in no other way .^8 Under the operation of the Fourteenth Amend- ment, the legislative power is certainly not as free in this re- spect as it used to be, and on the whole this restriction is a distinct gain, for it tends towards equality, and in a democracy equality is the surest, and, in the long rim, the only possible guaranty of liberty. But classification, and therefore class legislation, has not yet been abolished, it is merely placed un- der judicial control. The principles guiding such control must be evolved by further adjudication; it seems, however, that the trend of decisions may be summarised in the following lim- itations : Where a restraint is confined to a special class of acts or occupations, that class must present the danger dealt with in a more marked and uniform degree than the classes omitted ; and where the restraint is general, with certain (!xceptions, the excepted classes must either be entirely free from the danger, or the exception must tend to reduce the general danger, or a distinct and legitimate public policy must favor the toleration of the evil under circumstances where it is outweighed by great benefits. The decisions of the Supreme Court of the United States seem to be in accordance with these principles. 48 It may even be said that par- of land, its descent to all children, ticular laws and customs and spe- the system of recording deeds, ne- cial privileges have been the pre- gotiability of choses in action, pat- cursors of many of the most valued ent rights and copyright, incorpora- common rights and principles of the tion, &c. modern law; witness the devisability INDEX. [references are to sections.] ABUTTING OWNEE, special use of s'treet by, 172. upon street, cleaning sidewalks by, 620. ACCOUNTANTS, regulation as to certified public, 495, 673, note 50. ACROBATIC AND AERONAUTIC EXHIBITIONS, 120. ACCUMULATIONS, prohibition of, 368. ADMINISTRATIVE DISCRETION. See Discretion. ADMIRALTY AND MARITIME JURISDICTION, police legislation under, 66. ADULTERATION. See Foodstuffs. definition of, 280, 723. ADVERTISEMENTS AND SIGNS, unsightliness of, 182, and note 1. by prostitutes, 246. of claims for sale, 301. use of flag- in advertisements, 63, 183, 729. AGRigULTURAL PRODUCTS, exception of from operation of laws against trusts, invalid, 356, 734. ALIENATION, conditions against, invalid, 515. law restricting to less profitable disposition, 516. restraints upon, 365, 366. suspension of power of, 367. ALIENS. See Chinese. registration of, 45. refusal of license for sale of liquors, 207, 706. right to hold or dispose of property, 515, 516, 706, 720. deportation of, and federal power over, 704. state power, 705. protection of, under Fourteenth Amendment, 706. right to carry on business, 706. non-resident aliens as members of corporations, 707. ALTERATIONS, in buildings, involving partial prohibition, 542. excessively expensive, 548, 549. ALUM, in baking powder, prohibition of, 32. 757 758 INDEX. [references are to sections.] AMUSEMENTS, PUBLIC. See Theaters. what are, 250. theater regulations, 251. license of places of, administrative discretion in issuing, 652. ANARCHISM,. freedom of speech and, 475-478. propaganda of, as inciting to crime, 476, 477. legislation of Illinois, 477. federal law forbidding entry of those opposed td organized govern- ment, 478. legislation of New York and New Jersey, 478. ANIMALS. See Cruelty to Animals, Cattle. bodies of dead, property unless they become nuisance, 125, 522, destructive animals, 121. federal inspection of, when moat intended for exportation, 136. keej)ing of, in city, may be forbidden, 141. running at large of, 156, 526. running on streets, 168. cruelty to animals, 248, 249. abandonment of disabled, 249, 523. compulsory improvement of breed of, 438, 439. killing of abandoned, and compensation to owner, 249, 523. killing of diseased animals, 524. liceiisc to keep within city, 644. atpointing power, vested in j)rivate associations, 673. APPHOPRI.ATIOX OF PROPERTY. See Eminent Domain. .\W<1!1TE(TS, (jualifications of determined by law, 118, 493. examination of, and exemption of those already practicing, 684. ARID STATES, water in, 414-417. ARMED BODIES OF MEN, HtatutCH against use of, 92. <'(n|dc>yment of non-resident, forbidden, 92, 711. ARMS. See Mimtaky OudAKiZATioNS. right to boar, and military organizations, 01. carrying of concealed weapons, 90 iiml n. 1. ARRi:ST, with (ir without w;irranl, .S7. by oflicer or private person, 87. for diHobedicDce, in cnnc of fire, as jtiiniHliment, 614. ART, •ibwenity uinl, niloH controlling, 239, 480. freedom of, 179. ARTESIAN WELLS. regulntion of uho a8 between owners in the same vicinity, 425. INDEX. 759 [references are to sections.] ASSASSINATION, political, 477. ASSEMBLY, RIGHT OF, unlawful assembly, 477. under constitution, 480, 484. ASSOCIATED PRESS, restrictive by-laws, 345. obligation to furnish news, 386. ASSOCIATION, RIGHT OF, history of, 481. political associations, 481. in America, and power of control, 482-484. for economic and commercial purposes, see corporations and combina- tions. ASYLUM. See Inebriates, Insane. for habitual drunkards, 227, 623. commitment of insane to, 252-254. right to apply for discharge at any time, 255. private, state control of, 256. ATHEISTS, disqualifications of, 461. denial of God as blasphemy, 465. ATTORNEYS. See Law, Practice of. laws requiring service of, without compensation, 613. corporation required to pay fees of, in action against it for dam- ages, 637, 714, 727. required to reside in state where practicing, 711. recovery of attorney's fee by laborer, in action for wages, 735. ATTORNEY'S FEES, in addition to damages, as penalty, 637, 714, 727, 735. AUCTION SALES, regulation of, and license of auctioneers, 290, 652. license of auctioneer, and freedom of commerce, 294, 295. of articles in original package, cannot be taxed, 295. BAKERIES, laws regulating work in, 316, 317, 735. BAKING POWDER. See Alum. BALLOTS, conditions annexed to printing at public expense, 483. BANKING, requirements of bond or deposit to engage in business of, 40. restriction of business to corporations, 364, 401. systematic official control of institutions of, 399. ground of supervision of business of, 400. private banker, exempt from restrictions, 401. restrictions upon, applied to business done under title of bank, 49,5. savings banks, fitness of organizers required in New York, 651. issue of notes may be made a monopoly by government) 662. punishment of banks for receiving deposits when insolvent, 731, rjQQ INDEX. [references are to sections.] BANX NOTES. See Banks. BANKRUPTCY, federal power, 65. state ami federal laws, 306, 307. retroactive laws, 557. BANKRUPT SALES, legislative and municipal regulation of, 292. BARBERS. See Tkades and Occupations. regulation of, 494. restriction of business of, to citizens, 706. Sunday work, forbidden, 735. BATHING ESTABLISHMENTS, safety requirements, 1:20. BETTING. See Gambling. contracts unenforcable, 190, 195. statutory regulation of, 195. dealing in futures as, 201. betting at horse races, discrimination in favor of, 730. BEACONS AND BUOYS, local power regarding, 80. BIBLE, reading of, in public schools, 463. BICYCLES, license upon owners of, 38. requirement of numbers for, 41. free use of streets for, 168. long crintiniied racing on, proliiliif ion of, 248. HILLL'VRDS, [(laying for money, or loser to pay for use of table, 192. tables and bowling alleys, license or prohibition of, 193. MILLBO.VHDS, limitation of height oi, lis, 182. prohibition of, as safety measure, 147, 182. HILLS OF EXCHANGE, FOREIGN, dc.-iliiig in, not comniorco, 71. 79. UWA. OF RIGHTS, HwiHS and U. S. constitutions, 64. I'.IKDH. See Fisii AND Game. killing of Hong binls forbidden, 219, 419. I'.I.ACK L1STIN(!. See Lahokki.-s. piohibilion of, :ind lt'gilim;ilr information regarding a dipchiirnred finplnyiM', 329. HLASI'HKMV. See Rki.kiion. definition of, 46.'). F.OAHUS OF MFALTH. xlntf iiikI local, powern of, l'J.1. 1'17. ri'gnlfilinn of ofTonHive fsfablishmcnlH by, 177. ronditioiiH imposed by, in granting license to kcII milk, 652, note 22. INDEX. 761 [references are to sections.] BOARDING HOUSES. See Inns and Lodging Houses. for emigrauts, posting of rates required, 41. registration of guests, 46. laws against overcrowding, 728. BOAED OF TEADE, legitimacy of business of, 202. quotations of must be furnished equally to all, 386. BONDS AND DEPOSITS, as measure of police control, 40. requirement in quasi-public businesses, 40, 297, 494. bond required in sale of liquors, 207. required of warehousemen, 297. BOOKS, sale of obscene, 236, 237. censorship of, 471. New York statute requiring furnishing of, at reasonable prices, 375. BOOK-MAKING. prohibition of, 195. on streets, as obstruction, 169. BOOMS. For Floating Lumber. flooding of lands in connection with, 409, 413. BOTTLING ACTS, question whether for protection of public interest, 298. BOULEVAEDS, heavy vehicles may be forbidden on, 171. houses required to be set back, on, 181, 514, note 41. BOUNTIES, conditions attached to grant of, 24. to sugar producers, constitutionality of, 428. BOWLING. See Billiards. BEEAD, regulation of sale of, 275. regulation of price of, 375. assise of, 374. BEEWERY, rendered useless by prohibitory liquor legislation, 539, 540. BEIDGES. See Navigable Waters. erection of, by state authority, over navigable rivers, 72, 80. local regulation of, 159. exclusive charter right to erect, 362, 363, 675. compensation to riparian owner, when bridge piers built upon his land, 404. when an obstruction to navigation, 407. perpetual bridge monopoly a contract, 679. BEOKEES, dealing in foreign bills of exchange, tax upon, not tax on interstate commerce, 74, 79. ;o INDEX. 762 [rkferences are to sections.] BROKERS— continued. foreign legislation controlling, 203. monopoy of, in France, abolished, 587. BRUTALITY. See Cruelty to Animals, Prize Fights. in sports and amusements, 248. to animals, 249. BUCKET SHOPS. See Gambling Houses. prohibition of, 59, 202. BUILDING AND LOAN ASSOCIATIONS, payment by, of premiums in addition to regular rate of jnterest, 304. rates of interest, exception as to, in case of, 733. BUILDINGS AND STRUCTURES. See Houses. inspection of, 47, 128. limitation of height, 118, 180, 514, 538. permits for construction of, 118. regulation of, for health, 128, 542. regulation as to sightliness, 180, 181. party walls, 443. permits to erect cannot be made dependent upon uncontrolled adminis- trative discretion, 643, 644. permits for moving, 644. I'.IR1.\LS. See Cemeteries. pDJice control of, 125. BUSINESS AFFECTED WITH A PUBLIC INTEREST. See Public Interest, Business Affected With. CAB STANDS, privilege to keep, as justification of regulation of fares, 377. as special use of streets, 173. (•A.MP MEETINGS, prohibition of temporary business in neighborhood of, 175, note 15. CANADA THISTLES, oljljgution to remove, 617. CARCASSES, of animals, as nuisance, 522. CATTLE, <|iiaraiiliiic agaiiiHt infected, 77, 82, 129. fi'ilrral inspcitioii of, when meat is to be exported, 79. iitnto quarantine, excluding infected, from state, 8,3, 129, 136, 138. Btftto lawH regarding treatment or destruction of diseased, 129. slaughtoring of, regulated, 129. cpiar.'intine against caltli' i'mtu mikiIIhi- state, us means of discrimina- tion, 138. reguhitions to prevent cruelty to, in course of transportalion, 2 19. killing of infected rattle, and cnmpr'iisation, r>21. killing (if, by moving trains, and railrnnd's liability in .iariiages, 629, i'M, 727. riiilroad's liability for bringing diseased cattle into state, 6;{4. INDEX. 763 [references are to sections.] CEMETERIES, local power to remove or locate, 125, 141, removal of, as nuisances, 178. reasonableness of regulation, .'530. proiiibition of, where established under license, r)65. prohibition of creation of, as discrimination in favor of existing, 689. CENSORSHIP. See Stage Censorship. of press, 471. in time of war, 471, note. laws of Russia, as to, 471, note. CHARGEABLE, persons a(;tually chargeable and persons likely to become chargeable, 271, 491. CHARGES. See Rates and Charges. CHARITY. See Trusts, Eleemosynary. state control of private, or charitable institutions, 268, 269. gifts to charitable corporations, legislative regulation of, 369. CHARTERS. See Corporate Charters. CHICAGO, anarchists, case, 477. CHILDREN. See Minors, Women and Children, Parent and Child. regulation of conditions of work, 131, 310. employment of young, forbidden, 258. employment of, as actors, 259. commitment to reform school, 260-263. placing out in other states, by charitable societies of other states, re strained, 268 n. compulsory education of, 264, 265. truant schools, 265. CHINESE, registration of, by act of 1892, 45. exclusion of Chinese labor, 329, 486. cannot be compelled to live in separate portion of city, 491. discrimination against in granting laundry licenses, and Fourteenth Amendment, 655, 706. » disqualified from giving evidence in favor of, or against white men, in criminal cases, 693, n. 33. CHIROPODIST, alien forbidden to engage in business of, in New York, 706. CHOSES IN ACTION, sending without state for collection prohibited, 301. prohibition of purchase by lawyer, 725 n. CHRISTIAN SCIENCE, regulations of the practice of medicine and, 133, 154. eohipulsory vaccination and, 144n., 447. and treatment other than medical, 154, 468. compulsory medical treatment, 468. 7(34 INDEX. [REFERENCES ARE TO SECTIONS.] CIGAKETTES, prohibition of manufacture and sale of, 130, 134. as articles of commerce, 137, 145. CITIZENSHIP, RIGHTS OF, and sale of liquors, 229. and interstate migration, 488. negroes', under Fourteenth Amendment, 691. and public ofEce, 706. citizenship of United States confers, in several states, 708, 709. ' ' Citizenship and domicil united ' ' as requirement for participation' in common property of state, 712. CIVIL DAMAGE ACTS. See Liquors. liquor and gambling, 626. CIVIL EIGHTS LEGISLATION, federal and state, 693, 694. CLAIMS, sending out of state for collection, 301 n. CLASSIFICATION. See Class Legislation, Equality, Discrimination. statutory and equality, 610. discrimination and, in general, 682. for police regulation, 724, 725. judicial control of and attitude towards legislative, 725, 736, 738. in anti-trust legislation, exclusion of agricultural products, 734. principle of valid classification, 738. CLASS LEGISLATION, bottling acts as, 298. regulation of hours of labor in factories as, 313, 314. in regard to payment of wages, 320, 321. regulation of charges in particular classes of business, 378. special rates for railroad mileage tickets as, 393. statutory classification, and Fourteenth Amendment, 610. restraint on class for its own protection, 155. CLEARANCE CARDS, right of discharged laborer to, 327. COAL, Bale by weight may be required, 275. requirement that miners at be jiaid l)y weight unconstitutional in Illi- nois, 275. agreement for control of su|)ply of, in market, 347. coal-weighing acts, 394, 502, 735. gauging boatloads of before sale, and freedom of commerce, 75. rccordH of weighing for statistical information, 44. f '()K!{CIO.\'. Hoe Lauorkks, Timiiv^ Tt-ions, tiombinations ok Em- rrx)YKUH. , of lalxiriTH by cinployerH, .125, 326. of employers by labor urganizations, 332-3.14. INDEX. 765 [references are to sections.] COINAGE, federal power, 65. public monopoly, 666. COLLECTION, AGENCIES. See Debtors, Protection of. annoying practices forbidden, 301. COLORED PERSONS. See Negroes. COLORING MATTER. See Foodstuffs, Oleomargarine. when a substantial ingredient, 32. when used to deceive, 32. requirement of offensive coloring in manufacture of oleomargarine, 49, 282. used in oleomargarine, 62, 77, 284, 731. colored netting, to make fruit look attractive, 286. COMBINATIONS IN RESTRAINT OF TRADE. See Trusts, Monop- oly, Conspiracy, Law of. federal control and commerce clause, 79, 341, 342. English legislation, 338. state legislation, 339, 340. federal legislation, 341. when manufacturing concerns are in restraint of interstate commerce, 79, 341, 342. common law rules and their application, 200, 343-353. agreements not to deal with those refusing to adopt certain rules, 345. contract for exclusive sale of certain goods, 346. division of business or regulation of rates, 347. agreement by vendor not to engage in same business, 348. consolidation of corporations, 349-351. corporations as, 351, 352. agreements to fix price, 354. constitutionality of legislation, 355. discrimination by laws in favor of agricultural products, 356, 734. COMBINATIONS OF EMPLOYERS, legal as means of combating labor unions, 326. and labor unions, 337, 356. COMBINATIONS OF LABORERS. See Trade Unions. COMMERCE. See Combinations in Restraint of Trade, Inspection, Railroads and Common Carriers, Quarantine, Original Package Doctrine, Trusts. not a regulation of, to require railroads to post rates for interstate traffic, 41. state law requiring coloring of oleomargarine when it is an article of commerce, 49, 58, 284. labels on ' ' convict-made ' ' goods, 50. federal legislation under commerce clause, 65-67. federal control over state legislation, 69-85. agent of railroad of another state free from license tax, 73, 79, 295. agent of express company, engaged in, 73. 766 INDEX. [references are to sections.] COMMERCE— continued. drummers, engaged in interstate commerce, free from license tax, 74, 294. tax upon auctioneers selling goods from another state, 74, 295. state regulations affecting interestate trains, 135, 699. federal control of state laws for inspection of articles before export, and of imported articles, 75, 77, 233, 277. state liquor regulations and interstate, 76, 230-233. business which is commerce distinguished from business not commerce, 79. freedom of, when congress has not acted, 80. original package doctrine, 81, 232, 284. state cannot discriminate against imported articles, 82. lawful articles of, what are, 83. state police power and freedom of, 84. summary of principles of federal control of, 85. and state regulation of immigration, 101, 705. tax upon emigrant agents not a tax upon interstate commerce, 74, 79, 328, 489. state inspection and quarantine, 136, 138, 139, 705. local police power and interstate, 159. lotteries and commerce power, 198. state exclusion of paupers, and burdens upon those bringing into state, 271. state taxation of, iuvalitl, 295. strikes, when an interference with, 341, 356. manufactures, when controlled by commerce power, 341. sale of manufactured product from one state to another, 342. trusts and federal jiower, 341, 342, 355. fish and game laws interfering with freedom of, 420. civil riglits legislation as regulation of, 694, 699. state cannot forbid aliens engaging in, 706. regulafions as to itinerant dealers from other states as regulation of, 710. corporations engaged in interstate, 717, 720. COMMKRCE CFvArsIO. See Commerce. rO.M .MISSION .MF:H('HANTS. regulation of buHinesH of, 297. licensing of, entrusted to private association, 673. COM. MIT. ME NT. Hiirnnuiry, of vagrants ami |)r09, 570. CONSPIRACY, LAW OF, and labor organizations, 330-332, 335, 356. agreement constituting conspiracy, and agreement merely unenforce- able, 345. agreement that purchaser shall not sell goods of any other person, 346. di\'ision of business, or regulation of rates, 347. and beneficial trade agreements, 355. trusts and labor unions, 356. and anarchistic agitation, 476. CONSTITUTION, as juilicially enforceable law, 17. policy of, as enforced by courts, 20, 21. amendments to, passed in consequence of adverse judicial decisions, 155. CONSTRUCTION OF STATUTES, princiidos of^ 158, n. 9: CONTAGIOUS AND EPIDEMIC DISEASES. See Quarantine, Disin- KECTION. report of, required, 43, 52. inspection in cases of, 47. state proliihition of immigrants having, 71, 88, 122, 705. federal power over diseased immigrants, 123. in animals, state quarantine against, 129, 136, 138. state quarantine against another state where epidemic exists, 139. any one having knowledge of, required to report, 614. CONTRACTS. See Corporate Charters, Dartmouth College Case. limitation of lumrs of labor as afTocting freedom of contract, 155, 500. gaming contracts unenforceable, 190, 195, 201. state bankruptcy laws, and obligation of, 306, 307. Htate laws forbidding contracts payable in gold, 308, 309. freedom of contract ane<-i;i) privilege in, under speeial act, as monopoly, 713. ( 'OH I '•)!{. A TK I'OWKUS ( »!■' STATi;, pDimotion of pii))Iic welfare through, 8, 12, 22, 23. health ;ind safety regulation by exercise ni\ 111, 111, 122. cdiitrol of convict labrtr, and l.'ibor on pnlilic works, 310. enconragenn-nt of industry through exercise of, 428. INDEX. 771 [references are to sections.] CORPORATE POWERS OF STATE— continued. regulation of meetings and parades in public places, 644. state institutions, and common state property, use by non-resident, 712. COTTON, in the seed, restraints on sale of, 93. CREDITORS, preference to those within state invalid, 709. sending claims out of the state for collection, 301, note. CRIME, misdemeanors distinguished from, 26. criminal law as sanction of police legislation, 26. self crimination, 53, 54. prevention of, 86-110. prevention of by police patrol, 86. prevention of by regulating certain businesses, 93, 289. criminal law, and local ordinance power, 157. incitement to, 476, 477. intent in crime and misdemeanor, 635. conviction of, debarring person from certain occupations, 110, 287, 544, 545. knowledge presumed, in statutory offense 635, 636. CRIMINAL CHARACTER, cannot be punished as such, 94-96. CRIMINAL LAW, as sanction of police legislation, 26. distinguished from police power, in dealing with fraud, 272. CRIMINALS, supervision of known, 86. detention of suspected criminals upon charge of vagrancy, 100. control after conviction, 102-110. < conditional pardon, 104. indeterminate sentence and parole, 105-107. suspension of sentence, and probation, 108. police supervision of, after expiration of sentence, 110. CRUELTY TO ANIMALS, legislation to prevent, 249. regulation to prevent, in transportation, 249. killing of abandoned animals by society for prevention of, 523. CULTURE, freedom of, 479. DAIRY, license to keep within city limits, 643, 644. DAMAGE, remoteness of cause of, as affecting liability, 612. civil damage acts, 626. liability for, when not due to negligence. 633-634. civil and penal liability for, 63&, 772 INDEX. [references are to sections.] DAMAGE — continued. by railroad conipanj-, penalties for delaying to pay compensation, 637. consequential, 509, 510. DAMS. See Mill Dams' DAXGEKOUS SPOETS, statutory provisions regarding, 120. DAETMOUTH college CASE, corporate charter as contract, 24, 361, 561, 569. modifications of doctrine, 362, 562, 563. eleemosynary trusts and, 597. DEAD BODIES, property, when acquired for dissection, 125. control of burial of, 125. of animals, property unless they become nuisances, 522. DEBTORS, PROTECTION OF. See Usury, Legal Tender. in general, 300. in collection of debts, 301. publication of debts, 301. sending claims for debt out of state for collection, 301 n. usury laws, 302-304, 557. bankruptcy legislation, 305-307, 557. legislation against contracts payable in gold, 308, 309. legal tender laws, 558, 559. exemption from liability for debts, 567. legislation may not discriminate against railroad as debtor, 714, 727. DKLEGATIOX OF LEGISLATIVE POWER, to administrative board or officer, 34, 496, 497. to professional associations, 56, 57. to prison boards, in regard to parole or indeterminate sentence, 106. to administrative oflicer, in regulation of parades and meetings, 174, 643. ill requiring consent of majority of inhabitants of district to certain business, 207, 212. to community and local option, 217. to people of district to determine as to location of noxious establish- ment, 645. to administrative ofTieer or board. In frame rules for admission to cer- tain occupations, 649. DEPARTMENT STORES, ordinnnco or statute regarding, invalid, 148, 494. DEPENDENTS. See Insane, Minors, Paupers. care and control, in general, 11. general discuHBion of control of, 252-27L DEF»OSITS. Sec BoNns and Deposits. DETECTIVES, PRIVATE, ncting aH police ofTicors, 92. DIKES. See EmHANKMENTS. INDEX. 773 [references are to sections.] DIPLOMA, from institution of learning, as evidence of professional qualification, 133. Disability, of ex-eonviets, 110, 210, 544, 545. of aliens, 207, 704-707, 720. of women, 701-703, 244. DISCRETION. See License, Discrimination, Equality, Parades and Processions. uncontrolled, of administrative officer in granting license or permit, 212, 642-645, 632. judicial control of administrative, in grant of licenses, 653-655. DISINFECTION, in case of contagious diseases, 123. temporary dispossession of property for, 518. as precautionary measure, 521. DISCRIMINATION. See Equality, Classification, Race. in railroad rates, common law rule, 73. in taxing peddlers, 74. against products of other states by inspection laws, 76, 77, 277. under color of sanitary regulation, 138, 139. against imports, by state, 82, 138. principle of non-discrimination, 82. against certain schools of medicine or persons by examining board. 152-154, 647, 673 n. against poor, in definition of nuisances, 178. against district in confining unwholesome establishments to it, 179. in liquor legislation against products of other states, 232, 233. against imported articles, by license fees, 294, 295. in regulation of hours of labor, against factories or other specified industries, 313, 317, 735. between men and women in limitation of hours of labor, 313, 314, 735. against specified industries in legislation regarding payment of wages, 320, 321. between combinations of labor and combinations of capital, 337, 356. in anti-trust laws, in favor of certain industries, 356, 734. by public-service corporation, in furnishing service, 387. by railroad companies, in rates for long and short hauls or because of size of shipments, 391, 392. requirement of special mileage rates as, 393. against certain organisations in permitting street parades, 174, 468, 481, 643, 729. in licensing occupations, 497. in regulation of contracts, 500, 502. and uncontrolled administrative discretion in granting license, 212, 642-645. judicial control of administrative discretion to prevent, 653-655. statutory classification and, 610, 724, 725. — , INDEX. [references are to sections.] DISCRIMINATION— continued. in the fixing qualification for admission to professions, in favor of exist- ing practitioners, 544, 545, 683, 684. in favor of existing estabUshments by prohibition of erection of new ones, 687. between localities, 688-690. because of race, 691-700. because of sex, 701-703. against aliens, 704-707. against non-residents of state or United States, 708-712. against corporations, in regulation of industry, 715. in police measures against different evils, 721, 723. between lodging houses and hotels in prohibiting overcrowding, 728. DISPENSARY SYSTEM, in South Carolina and elsewhere, 218, 233. constitutionality of, 666. DISTRICT OF COLUMBIA, exercise of police power with regard to, 67. DIVISION FENCES. See Neighbors' Rights. joint erection of, 444. DOCKS. See Wharfs, Piers and Docks. V DOGS, property in, 421. tax upon to pay damages resulting from killing of sheep, 434. if kept ill unlawful manner or for unlawful ])urpose, may be destroyed, 526, 527. double damages for injury caused by, 635. DRAINAGE, majority may compel minority of owners to join in improvements, 127, 441, 442. drains and ditches, when across private property, constitutional ques- tion, 427. creation of district, by volo, including land of those not consenting, 441, 442. owners of Iniid may be required to raise grade so as to secure adequate, 617. DHUGGIHTS, ro|iort by, or record of, Hales of liquor or poisons, 43, 222. prcHcriptionH »a jiapers of luiblic nature, 53. (•nmpnlHory aHHociations of, 56. limitation of sale of proprietary medicines to, 149, 650. MiU> of liquor as medicine by, 222, 223, 650. hourH of work 28, .')37. futablifihment of, and existing contracts for erecting frame building, 556. INDEX. 779 [references are to sections.] FIKE LIMITS— continued. uncontrolled discretion of administrative officer in allowing erection of wooden buildings within, 644. establishment of, does not affect existing frame buildings, 685. FIRE SALES, regulation of, 292. FISH AND GAME, laws protecting, 24. history of legislation, 418. methods of hunting or fishing forbidden, 418. possession of in closed season, unlawful, 418, 516, 635. constitutionality of legislation, 419, 422. laws interfering with interstate commerce, 420. summary destruction of property used for unlawful fishing or hunting, 527. game unlawfully killed may be summarily destroyed, 528. non-residents of state may be charged for hunting or fishing licenses, 712. FLAG, legislation forbidding use of, in advertisement, 63, 183, 729. FLOOD, action of state to prevent, 114. duties of riparian proprietors, 114, 409, 619. flooding land by mill dams, compensation for, 410-413, 508. preservation of forests as means of preventing, 423, 619. FOODSTUFFS, regulations to prevent sale of impure milk, 32, 147. inspection of, and commerce power, 77. adulteration of, 41, 129, 280. regulations to prevent fraud in sale of, 147, 279, 280, 282-284. taking samples for inspection, and compensation for, 519. sale of adulterated, 635, 723. FOREIGN COMMERCE. See Commerce. FOREIGN CORPORATIONS. See Corporations. distinction between carrying on commerce in state and exercising cor porate powers in state, 717, 718. FORESTALLING, common law rule, 200. English and American legislation against, 338, 339, FORESTS, protection and preservation of, 423. when required for protection from floods, 619. FORFEITURE, of property unlawfully used or acquired, judicial process in, 525-528. of license for cause, 546 (n. 26). under United States laws, of property used for illicit distillery, 627. FORNICATION, punishment of, 240, 241. -jgQ INDEX. [references are to sections.] FOURTEENTH AMENDMENT, control of state police power under it, in general, 69, protection of property under, 84. legislation for health and safety, and, 134. and due process, 244. and power of majority of property owners to bind minority in crea- tion of drainage, 441, 442. fundamental rights under, 445. equality and equal protection of the laws, 609-611. slaughter house cases, 609. protection under, from administrative discretion in issuing licenses, 655. protection of negroes under, 692. protection of aliens under, 706. i'KANCHlSE, to occupy streets with tracks, requires legislative authority, 163, 658. right to incorporate as franchise, 358. to use streets, under special act, and for exclusive use, 660. exclusive, to ferry companies, 668. exclusive franchise as contract, 675. KRAUD, in general, 12. prevention of in sale of oleomargarine, 77, 84, 146, 147, 284, 731. prevention of in sale of milk, 147. preventive measures against, 272, 273-298. forms of legislation against, 272. I)rohibition and regulation to prevent, 285. on (Toilitors, l»y selling stock of merchandise, 287, n. 3. public and private interest in prevention of, 298. I'HKK M.VSONS, (7, 688 n. INDEX. 78o [references are to sections.] HOSPITALS, regulation of location of, in cities, 141. license to conduct, and administrative discretion, 643. HOTELS. See Inns and Lodging Houses. punishment of fraud in obtaining board at, 731. HOURS OF LABOR. See Laborers. limitation of, in general, 131, 155. limitation of, for women, 149, 311-314, 735. limitation of, whether sanitary or social measure, 314. limitation of, for adult males, 316, 317, 735. limitation, and existing contracts, 556. on public works, 310. HOUSES. See Buildings and Structures. street numbers on houses, 41. sanitary requirements in, 150, 542. party walls, 443. street name affixed to, 519. destruction of, as sanitary measure, 520, 521 n. when used for unlawful purpose, may be destroyed, 525. HOUSES OF CORRECTION. See Reform Schools. ICE, on navigable waters, common property of people of state, 417, note 26, removal of, from sidewalks, 620. IGNORANCE OF FACT, not excusing from liability, 635. ILL-FAME, HOUSES OF. See Prostitutes, Prostitution. regulation of, 243. frequenting, 97, 246, 722. confinement to particvilar district of city, 179, 245, 689, keeping, as crime or disorderly conduct, 157, 244, 245. as common law nuisances, 245. liability of owner of house, 245. house may not be destroyed, 245, 525. IMITATION, of butter, by coloring oleomargarine, 32, 62, 284, 731. by coloring distilled vinegar, 32. prohibition of established imitation products, 285. IMMIGRATION. See Migration. registration of immigrants, 45. law of 1903, 65. state power, 71. state regulation to exclude objectionable classes, 101, 271. exclusion of diseased persons by federal legislation, 123. federal exclusion of paupers, 271. federal law against entry of anarchists, 478. exclusiveness of federal power over foreign, 486, 705. freedom of, from one state to another, 488, 705. from territories of United States, 490. 784 INDEX. [references are to sections.] IMMORALITY. See Obscenity, Fornication, Prostitution. and obscenity, 234-239. fornication, 240, 241. prostitution, 242-246. IMPORTS. See Commerce. INCORPORATION. See Corporate Charter. INCRIMINATING REPORTS. See Reports. immunity from prosecution upon, 53, 54. distinction between compulsory notice and compulsory testimony, 54. INDETERMINATE SENTENCE. constitutionality of, 105, 106. judicial determination of sentence, 106. control of prison authorities by legislation, 106. INDIANS, federal control over lands of, 67. disqualified from giving evidence in favor of or against white men in criminal cases, 693, n. 33. liquor in Indian country, 526, note 40. INEBRIATES. See Habitual Drunkards. INFANTS. See Minors, Children, Parent and Child, Women and Children. infants' boarding houses, license for, 493. INFLAMMABLE MATERIAL, regulation of transportation of, 117, 119. INNS AND LODGING HOUSES. See Boarding Houses. registration of guests, 46. regulation of, 175. rates, regulation of, 373. obligation to serve all guests, 388. laws against overcrowding in, 728. INSANE, restraints upon the, 252. commitment of, to asylum, due process in, 253, 254. right of insane person to apply for discharge, 255. private asylum for, control of, 256. INSPECTION, an incident of regulation, 47. whtTo a violation of privacy, 47. Htate laws regarding, ami fcdcriil cmiHtitutiou, 75, 276-278. of food BtuflTs, 77, 277. diHcriminution by, against products from other states, 77, 233. lift means «»f rontrol, 9.T of mines, 1 15. in cuHH of contagions diseases, 123. of tenement houses, 128. of markets and slaughtor hoiises, 129. of cattle, 79, 136. diHcriminntion against other states by, in liquor legislation, 233. INDEX. 785 [references are to sections.] i NSPECTION— eontiniied. for prevention of fraud, 276-278. discrimination by inspection, laws applicable only to goods imported, 279. New York prohibition of laws for, 278. taking sample for, and compensation, 519. INSURANCE. See Compulsory Insurance. requirement of bonds or deposits to engage in business of, 40. contract of, not commerce, 78. speculative element in, 199. corporations engaged in, subject to certain conditions, 219. combinations between insurance companies forbidden, 340. restriction of business to corporations, 364, 401. regulations of rates of, 375. legislation against discrimination in rates of, 390. state control, 399. ground of supervision of business of, 400. compulsory, 432-437. compulsory maintenance of fire patrol by those engaged in, 615. state may exclude foreign companies, 716. prompt payment of claims by, 714, 727, note 33. INTEREST. See Usury. regulation of rate of, 302-304. regulation of, as affecting existing contracts, 555, 557. premium, in addition to, in ease of building loan associations, 733. INTERSTATE COMMERCE. See Commerce. INTERSTATE COMMERCE ACT. See Railroads. public interest, business affected with, analysis of, 341. discrimination by railroads forbidden, 391, 392. INTIMIDATION, by organizations of labor, of other laborers or employers, 332-334. INTOXICATING LIQUORS. See Liquors. INTOXICATION, as a punishable offence, 225. INUNDATION. See Floods. IRRIGATION, majority of property owners may compel minority to join in, 127, 441, 442. control of waters needed for, 414-417. ITINERANT MERCHANTS. See Peddlers. license required of, 39, 289, 292. municipal license, tax upon, reasonableness of, 39. definition of, 289. uncontrolled administrative discretion in granting license to, 653. from other states, and interstate commerce, 710. JUDICIAL CONTROL, as to reasonableness, 63, 128, 150, 151. 50 786 • immx. [references are to sections.] JUDICIAL CONTROL— continued. reasonableness of municipal ordinances, 142, 158, 178, 179, 286. of safety legislation, 144. of discretionary power in administrative officers to issue liquor or other licenses, 209, 653-655. reasonableness of regulation of charges of business affected with public interest, 379, 385. of rates determined by a commission, 381, 382. jurisdiction of federal court over rates fixed by state, 382. of administrative determination as to nuisances, 521, 526, 527. of municipal determination as to nuisances, 531, 533. as to reasonableness of improvements required to property, 549. as to reasonableness of rates and charges determined by legislature, 550. of legislative classification, 725, 736-738. JUDICIAL CONTROL OF POLICY, under written constitutions, 16, 17. the American principle, 17, 20. Swiss and German principle, 17. in a new field of legislation, 21. JURY SERVICE, exemption from, not a contract, 566. JUSTICE. CIVIL AND CRIMINAL, administration of, as function of government, 7. equality in administration of, 610, 714. JUSTICES OF THE PEACE, proceedings before, to prevent breaches of the peace, 89. KNOWN THIEVES, may not be punished unless for specific acts, 96. others may not be forbidden to associate with, 457. LABELS (SIGNS, MARKS, STAMPS), indicating ingredients in articles of food, 41. "convict made," 50. "tenement made," 51. ' required in sale of oleomargarine, 284. LAHORKHS. Sec Hoirns of Labor, Compulsory Service, Trade Unions, WA(iK.s, Women and Children, Labor Contract, Strikes. legiHlafion [irr>fecling, and attitude of courts, 21. notice of Htrike to, when employed to take place of strikers, 41. importjilion of, under <'ontract, 65, 329, 486. rf'guhilioii of hours, ami condition of work places, 131. limitation of hours of Labor, 155, limitation of hourn of labor, as affecting right of contract, 15.''), 500. IcgiitlHtion for protection of, 310-329. Btate rogiil.'ition of, iijion jmblic works, and of convict labor, 310. hourH of female, 311-314, 7:55. bouM of adult males, 310, 317, 735. INDEX. 787 [references are to sections.] LABOREES— continued. payment of wages at regular intervals and in cash, 319-321, 502, 735. contract with employee, exempting him from liability for injury re- ceived by, 322. penalty for leaving without notice, 323. fines for imperfect work, 324. coercion of, by employer, in exercise of right of voting, 325. coercion by employer, against membership in unions, 326, 735. blacklisting, 327. requirement of statement by employer as to reason of discharge, 327. employment agencies, 328. federal power of excluding foreign laborers, 329. combinations of, 330-337. combinations to raise wages, 356. contract of, specific enforcement of, 448-452. contracts of seamen, 329, 451. specific enforcement of contract, when business affected with public interest, 333, 452. employer's liability for injury to, when not due to laborer's negligence, 633. legislation protecting, applied to establishments employing certain number of, 724. LABOR CONTRACT, limitation of hours of labor, as affecting right of contract, 155, 500. for an unreasonable time, 449. no specific enforcement of, 450-452. question of punishment of breach of, 450-452. LAND, health regulation as to, 127. restrictions upon alienation of, 365-369. mortmain, in Europe and America, 368, 369, 592-596. perpetual rents, prohibition of, 370, 589. long leases, 371. streams necessary for irrigation of, 416, 417, private roads or drains across land of another, 427. drainage and irrigation, 441, 442. division fences, 444. conditions against alienation, invalid, 515. entry for public purpose not a trespass, 518. boundary monuments may be erected at owner 's expense, 519. abolition of feudal tenures, 588. destruction of existing perpetual rents, 589. perpetual covenants, or restrictions upon use of land, 590. entails, 591. lots covered with stagnant water or improperly drained may be re- quired to be filled in, 617. owner of, may be required to destroy noxious weeds, 617. improvement required, reasonableness of, 618. / 738 IxXDEX. [references are to sections.] LAND — continued. requirement that animal pests be destroyed by owner of, 618. where naturally source of imniinent danger, owner may be required to take reasonable steps to avert, 619. LAUNDRIES, absolute administrative discretion in granting permission to conduct, 643. people of locality concerned given right to decide whether to permit, 645. discrimination against Chinese in licensing, and Fourteenth Amend- ment, 134, 655, 706.. LAW, PRACTICE OF. See Professions. legislative power of determining qualifications for, 648. requirement of qualification of good charanfl enumerated, 27. INDEX. 789 [references are to sections.] LIBERTY— continued. economic, and protection of classes from oppression, 299. in general, different aspects, 445. LICENSE. See Discretion, Discrimination, Equality, Liquors. conditions attached to, 24, 652, note 22. as a matter of right, in liquor traffic, 36, 206. as a police measure, 37 and note 38. discriminative licenses, 38, 639. high license as method of restriction, 39. as means of control, 93, 494. of mining engineers and foremen, 115. of ship officers, 117. of slaughter houses and markets, 129, 639, 643. of physicians, 133, 495. to use streets, 163, 168, 173. of draymen, peddlers, auctioneers, using streets, 173. uncontrolled administrative discretiou in granting, 212, 642-645, 652. liquor license as a matter of judicial discretion, 208-210. of theaters, 251. limitation of number of licenses to sell liquor or engage in other busi- ness, 211, 640, 672. requirement of, for private asylum, 256. of peddlers and itinerant merchants, 289, 292, 653, 732. of auctioneers, 290. where discriminating against imported articles, 294. required of emigrant agents, 328. as means of control, in insurance and banking, 401. as contract, 561, 562. to conduct lotteries, revocable, 563. liquor, not a contract, 564. to use public property, 573, 577. not a surrender of police povcer, 575, 580, 602. perpetual license unreasonable, 581. revocable, for use of public property, 582. business established under license of reasonable duration as vested interest, 580, 602, 681. requirement of good character as qualification to secure, 651, 652. to keep noxious establishments, or for sale of liquor, depending upon consent of adjoining property owners, 645, 652. judicial control of administrative discretion in granting, 653-655. revocation of, power of administrative authorities with regard to, 546 n. 26. LICENSE OR OCCUPATION TAX. See License. distinguished from license for regulation, 37, 295. as a police measure, 38. LIENS, subcontractor's, and owner's liability, 626, n. under United States revenue laws upon property used as distillery, 627. 790 INDEX. [references are to sections.] LIFE, taking of, to prevent felony or escape of felon, 445 n. LIQUORS. See Saloons, Wines. municipal regulation as to place of sale, 33. license tax upon sale of, 37. bond required of liquor dealers, 40. report of sales of, by druggists, 43. internal arrangements of rooms for sale of, 52, 244. sale of, may be prohibited, 59. when sale prohibited, exceptions in favor of medicinal, mechanical and sacramental uses, 59, 221-224. state police power, and federal commerce clause, 76, 80, 81, 83, 230-233. original package doctrine, 81, 230-232. sale forbidden in case of riot, 89, n. license for sale of, refused ex-convicts, 110. prohibition of manufacture and sale of, 134. . constitutional basis of control of, 204. regulation and proliibition, 205. license as matter of right, 206. uncontrolled discretion in administrative officer to grant license, 212, 654. regulation of traffic in, 205-212. distinction between wholesale and retail trade in, 205. statutory disqualifications of right to sell, 207, 229, 652. legal distinction between fermented and distilled liquors, 205, 214, 215. discretionary power of licensing to sell, 208-210. limitation of number of licenses, 211, 640, 672. prohibition of sale of, 213-217. state prohibition, 214, 215. local option, 213, 216, 217. public monopoly of sale of, 218, 219, 666. not used as beverage, 220-224. sale of, as medicine, cannot be forbidden, 222, 223, 650. use for sacriunental purposes, 224. excoHHive use of intoxicating, 225-227. restrictions upon habitual drunkards, 226, 227. state power over and federal constitution, 228, 233. privilege of selling not a right of citizenship, 229. i'iri|>I(iyni<'nt of women in sale of, 244, 703. private conHumption of, 453-455. poHHcasion of, as evidence of manufacture or sale, 455. Halo and conHiimption of, in clubs, AT^Ct. Btalufe pniliibiting distillation of grain into, and grain owned at time, 516. may be destroyed when unlawfully keyit for sale, 525. property rondcrr-d useless by proliibition of manufacture and sale of, 5.39, r,U), 54(1. license to sell or manufacture, not a contract, 362, 564. INDEX. 791 [references are to sections.] LIQUOKS— continued. special license fee from dealers in, to maintain asylum for inebriates, 623. law giving action for damages caused by intoxicated persons, against one who sells, and owner of premises, 626. sale to minor or habitual drunkard, not knowing him to be such, 635. right to sell, coufined to males, 640, 703. requirement of good character to secure license for sale of, 651. license to sell, depending upon consent of neighboring property owners, 645, 652. regulations applying to existing saloons, 683. discrimination between city and country districts in regulating sale of, 688, n. refusal of license to aliens, 207, 706. refusal of license to one not a resident of state, 710. punishment of traflBc in, 722. LITERATURE, sale of obscene, forbidden, 237. when depicting immorality, 239, 479. literary, scientific and aesthetic interests, 479. LIVE STOCK. See Cattle. LIVERY STABLES, determination of location of, by property owners of districts, 645, 689. prohibition of erection, of new stables, as discrimination in favor of those existing, 687, n. LOCAL OPTION, as to sale of liquors, 216, 217. LOTTERIES, prohibition of, 59. excluded from mails and from interstate commerce, 65, 198. general discussion of, 196-198. importation or carrying of tickets from one state to another forbidden, 198. license to conduct a lottery not a contract, 362, 563, 674. revocation of lottery grant, and contracts affected thereby, 556. possession of lottery ticket, punishable, 635. ' LOW LAND, raising of level of, required, 617. LUNATICS. See Insane. MACHINERY, inspection of, 47, 119. police regulations for protection from dangerous machinery, 119. MALICE, malicious interference, 334. malicious erections, 426. MANUFACTURE, as affected by commerce power, 79, 281, 341, 342. 792 INDEX. [references are to sections.] MARKS. See Labels. H.\ll Marks. MARKETS, inspection of by municipal authorities, 129. municipal markets, 129, 565. fresh meat required to be sold in public, 641. municipal monopoly of, 669. MARRIAGE, polygamy, federal legislation against, 67, 468. prohibition of, in case of disease, 124. autonomistic, or without observance of statute, 241. reports of, by minister solemnizing, 613. between blacks and whites, prohibited, 697. marital rights may be confined to those living in state creating rights, 709. married woman's liability for family expenses, 567. ME.-VSURES. See Wek.hts and Measures. .ME.\T. See Fresh Meat. MEDICINE. See Physicians. practice of, ex-convicts excluded from in New York, 110, 346, 545. regulation of sale of, in interest of health, 130. qualifications required for practice of, 133, 152-154. neglect of parents to call medical aid for those in their custody, 133. legislative discrimination against certain schools of, in regulating prac- tice of, 152-154. treatment other Ihan medical, 154, 468. sale of liquor as, 222-223, 650. vivisection, 249, 480. exclusive selling arrangements and rebates, 346. comf)ul8ory medical treatment, 468. freedom of medical science, 479. regulations for admi.ssion to practice of, applied to existing practi- tioners, .')42. examining board for jjractice of, representation of various scliools, upon, 153, 647, 673. dincrimination against system of, by examining board, 647. pr(>|>rielary medii-ines, limitation of sale to druggists, 149, 650. requirement of residence in state wlicro practicing, 711. MKJKATION. See Immkiration. and Hettlement, freedom of, 485-491. freedom of, within stale, 491. MILITARY OPERATIONS. di«truilion and .•i|)|in)i)riation of i)ro|)('rty, 536, 537. MILITARY OROANIZATIONS. See AuMEn RontER of Men. prohibition of voluntary organizntions, 91, 482. conwriplionM, flM, n. MILITARY TKLKCRAPII LIXKS. (•(iritriil iif ill llini' nf w;ir, 471. INDEX. 793 [references are to sections.] MILITIA, organization of, under state law, 91. release from service in, because of religious scruples, 469. exemption from service in, 566. MILK, prohibition of sale of adulterated, 32, 147. sale of milk from diseased cattle, 129. conditions attached to license to sell, 652, note 22. MILL DAMS, power of states to authorize, 72. flooding of other property by, 410-412, 508. obligation to provide passageway for fish, 419. MINES, legislation for safety of miners, 115. employment of children, forbidden, 258. miners paid by weight, to have weighers chosen by them, 274. prohibition of female labor in, 311. hours of labor in, legislation limiting, 155, 316, 735. weekly payment acts, and company store orders, 319-321. fees of mine inspectors borne by owners of, 622. state license of foreman, and liability of owner of mine, 624. employment of mine manager required and penalty for noncompliance, 638. requirement of license for mining of phosphate, 644. legislation for protection of miners, applied to mines over certain size, 724, 727. MINORS. See Parent and Child, Women and Children, Children. refusal of license to, for sale of liquors, 209. sale of liquors to, 205, 218, 258. control of, 257-267. restrictions upon adults in dealings with, 258. reasonableness in regulation as to, 259. employment of, as actors, 259. curfew ordinances, 259. commitment of, to reform school, 260-263. state control of education of, 264-266, 479. sale of liquor to one who represents himself as of age, liability for, 635. MISCEGENATION, prohibition of, 697. MISDEMEANOR, distinguished from felony, 26. arrest for, without warrant, 87. MONOPOLY. See Combinations in Restraint of Trade; Trusts; Con- spiracy, Law of. legislative creation of, by requiring use of specific article, prohibited, 34, 673. state establishment of, 142. 794 i>;dex. [references are to sections.] MONOPOLY — continued. creatiou of, by limiting sale of legitimate article to one class of per- sons, 149, 650. in professions, by choosing examiners from certain bodies of practi- tioners, 56, 673. public, of sale of liquors, 218, 219, 666. of sale of liquors to private corporation, as means of police contiol, 219, 669. English and American legislation against, 338, 339. prohibition of attempts at, 340, 341. common law rule and its application, 343-353. corporate, illegal, 352. when is monopoly point reached, 353, 354. grant of, in corporate charter, 363. regulation of rates, where business is legal or virtual monopoly, 376- 378. requirement of equal service by, 387, 388, 393, 667. regulations for public convenience, 398. abrogation of monopoly and contracts affected thereby, 556. exclusive license to use streets, and, 574, 577. abolition of gild or trade monopoly, and compensation for loss thereby, 587. history of, in English law, 656. American constitutional provisions against, 657. natural monopoly, 658-662, 680. patent and copyright, 663-665. state monopoly, 666. municipal monopoly, 667. private ferry monopoly, 668. exchi.sive license and, 670. government in creating, does not surrender its control, 671. limitation of number of licenses and, 672. revocability of grant of, 674. exehjHive charter right, 675. charter not recognized as exclusive unless necessary, 676. grrant of, as contract, 677-680. perpetual, or limited in time, 681. in pxisting establishments by prohibition of erection of new ones, 687. MO.NTMK.NTS, of history or art, preservation of, 14. boumlary, may be erected at owners' expense, 519. MORMON (irURriT, fedf'nil legiHlation against polygamy, 67, 468. |>rop«'rty held by, congreHsionnl legislation as to, .596. MOHTMAF.N, legiHlatif>n in England, 368. legiHlation in T'nilfd States, 369, 466. neon In ri Bat ion of church lands, 592. INDEX. 795 [references are to sections.] MORTMAIN— continued. suppression of monasteries in England, 593. application of principle in states, 594, 595. the Mormon church case, 596. MUNICIPAL CORPORATION, power over location of establishments affecting health, 140, 141. construction of powers of, 141, 142. prohibition of gold contracts by, 309. state regulation of municipal employment of labor, 310. licenses by, for use of street, 574. revocable license by, for use of street and exercise of power to revoke, 581, 582. must have legislative authority to grant franchise for street railroad, 163, 658. creation of monopoly by, 667, 669, grant by, to company and establishment of competing enterprise, 677. power to grant exclusive franchise, 678. MUNICIPAL REGULATION. See Streets. offensive trades and establishments, 42, 150, 158, 178, 179. reasonableness of, 33, 63, 286. establishment of fire limits, 33, 118, 141. as to places for sale of liquors, 33. license when business legal by state law, 38. as to cemeteries, 125, 141, 529, 687. of markets and slaughter houses, 129, 640, 643, 669. in interest of health and safety, 140-142. construction of municipal power of regulation, 141, 142, 158, n. 9. regulation must tend to remove danger, 148, 687. for public order and comfort, 156. where matter is covered by state law, 157. when affecting commerce, 159. of streets and their use, 160-164. of offensive establishments, 177-179, 529-531, 533. of theaters and public performances, 251. to prevent fraud, reasonableness of, 286. by license fees, reasonableness of, 286, 292. of water and other rates, 374, n. ; 382, n.; 570, 571. license to use streets for term of years, 574-577. revocable licenses under, and municipal power to revoke, 581 582 MUNICIPAL TRADING, and private industry, 23 and n., 666. and monopoly, 667. NATIONAL EXISTENCE, governmental functions for maintainance of, 4. NATIONALITY, interests of, 479. NAVIGABLE WATERS. See Bridges, Riparian Owners, Wharfs, Water AND Watercourses. 796 INDEX. [UEFERENCES ARE TO SECTIONS.]. NAVIGABLE WATERS— continued. freedom of navigation upon, 72. where congress has not acted, 72. local regulations of as to bridges, dams, 72, 80, 159. encroachments upon, by piers and bridges, 163, 407. obstruction on, may be forbidden, 170, use of for warehouses, and business, regulation of, 170. and riparian owners of submerged land, 403. where non-navigable made navigable, compensation to riparian owner, 407, 409. state power over fish in, 420. federal power to order alterations in structures interfering with navi- gation, 549. grant of exclusive right of navigation by state for improvement of river so as to be suitable for navigation, 661. NAVIGATION. See Navigable Waters, Vessels, Pilotage. toasting trade, 65. federal regulations of, 66. regulations for safety of, 117. interest of riparian owner subject to easement of, 404. structures interfering with, 549. NEGROES, fri'o negroes before Fourteenth and Fifteenth Amendments, 691. federal and state civil rights legislation, 693, 694. tvjual service to, by public service companies, 695. prohibition of marriage with white, 697. separation from whites in schools, 698. HC|)aratc aeconuiKidations in public conveyances, 699. NEIGHHORS' RIfiHTS. See Land. easement of support, 424. underground natural waters, 425. malicious erections, 426. jirivate roads or drains across land of another, 427. jtarty walls and division fences, 443-444. NEWS AGENfTER, reqwireinent of service by, to all wishing it, 387. legiMJalion against discrimination in ciiargcs by, 390. NITROGLYCI'lRlNi:. See EXPLOSIVES. iranHportutioii of, within state control, 83. NONHEHI DENTS, rifjIilM of. under constilution, 708-712. non resident creditors of iiiKolvent, 709. running of statute of limitationn against non-resident plain! ill, 709. iiH fruHleen innler doods of trust, 709. UH ••xecntorH or iidniinistralorH, 70f). in what avocations lliey may be discriniinated against, 710, 711. exclusion from proprietary resources of state, 712. [references are to sections.] NOTICES, of rates in emigrants' boarding houses, 41. posting of rates by railroad company, 41, 73. posting of prices of bread in Germany, 41. where of prejudicial character, 49-51. NOXIOUS WEEDS, legislation against, 120. owner of land may be required to destroy, 617. NUISANCES. See Offensive Trades and Establishments. common law of and police power, 29, 616, 617. classification of, in Illinois, 33. municipal power to abate, 140, 141, 156. obstruction of streets, a nuisance, 168, 169. parades and processions as, 174, offensive establishments, 176-179, 529-533, 565. cemeteries as, 178, 530, 565. keeping of gambling house a nuisance, 191, 193. obscenity as, 235. house of ill-fame, 245. public cruelty to animals as, 248. public entertainments as, 250. private, whether subject to police power, 426. per se, administrative action and judicial hearing, 521, 531, 602. discussion of, in general, 520-524. where property abated as nuisance, it must be destroyed, 528. must either be result of human action or inaction, 616. OATH, required of members of associations, 481. test oath uses, 544. OBSCENITY, in publications and performances, 236, 237. in public amusements and theatrical performances, 251. and scientific publications on offensive subjects, 238, 479. obscene prints as nuisance per se, 520. OBSTRUCTION, of streets, 169. OBJECTS OF GOVERNMENT, three-fold division of, 4. OCEAN, police of ocean, 66. OCCUPATIONS. See Trades and Occupations. OCCUPATION TAX. See License Tax. OFFENSIVE ESTABLISHMENTS. See Offensive Trades and Estab- lishments. OFFENSIVE TRADES AND ESTABLISHMENTS. See Laundries, Liv- ery Stables, Slaughter Houses. may be restricted as to location, 141. regulation of, 176-179. 798 I.XDEX. [references are to sections.] OFFENSIVE TKADES AND ESTABLISHMENTS— continued. confinement of, to specified districts of city, 179, 533. municipal regulation and abatement as nuisances, 529-531, 565. under foreign laws, o32. licenses limited in time to, 580. decision by the people as to whether location shall be vrithin district, 645. municipal power to prohibit future erection of, 687. confining to a part of city as discrimination, 689. OLEOMARGAEINE, requirement of coloring which renders unsalable, 49, 58, 62. legislation, in general, 62, 282-284. state power over use in federal institutions, 67. a lawful article of commerce, 77, 84. coloring of, to imitate butter, forbidden, 32, 62, 77, 282, 284, 731. state prohibition of manufacture and sale of, 62, 134, 283, 541. federal law regarding, 81, u. attitude of federal courts toward legislation, 84, 137. imported in original packages, 137, 284. prohibition of, as sanitary measure, 145-146. regulations to prevent fraud in sale of, 147, 282. labelling of packages of, 282. property rendered useless by prohibition of manufacture of, 541, 547. prohibition of coloring, when butter is permitted to be colored, 731. OPIUM, possession of, made as misdemeanor, 455. OPTKIAXS, roiniiremcnt of license, 493. OPTIONS AND FUTURES, dealing in, prohibition of, 59, 201, 730. legality of, 200. legislation resl raining, 201. foreign legislation as to, 203. ORIGINAL PACKAGE DOCTRINE, an )i|iplied to lirjuors, and Wilson Act, 80, 230-233. apfilied to foreign commorce, HI. applied to interslate comniprce, 81, 137. Btatntnry and judicial modifications of doctrine, 81, 85. retail packagcH and, H], l.'i7, 295. oloomiirgarine in, 137, 284. OSTEOPATHY, and regulation of practice of medicine, 132-4. PACKA(iK, requirement of certain form :ind wciglit of, in sale of certain com- moditicH, 75, 274, 276. PAHADKS AM) PROCKSSIONS, afl nuiHancen. 171. 039. INDEX. 799 [references are to sections.] PAEADES AND PEOCESSIONS —continued. discrimination in allowing use of streets for, 467, 480, 729. uncontrolled discretion in police to allow or prohibit, 174, 643, 644, 729. PARDON. See Conditional Pardon. PARENT AND CHILD. See Children, Minors. right of parent and commitment of child to reform school, 260. notice to parent of proceeding to commit child, 262. compulsory education, 264. truant schools, 265. PARKS, regulation of use of by public, 167, 171. use of, for public meetings, 174, 481, 644. regulation as to nature of buildings adjoining, 181, 514, exclusive privilege to conduct business in public, 670 PAROLE, of convicted persons, 105, 106. as means of police supervision, 107. PARTICULAR BURDENS. See Railroads, Abutting Owner, Land, Civil Damages Acts. person or property burdened, as responsible for danger, 612. in general, 612-638. PARTY WALLS, legislation permitting building without consent of neighbor 443 PATENTS, ' federal power, 65. and state police control, 131. history of rights of, 663. federal legislation, 664. exercise of privilege for public benefit, 665. PATENT MEDICINES, sale of, restricted to druggists, 149, 650. PATENTED INVENTIONS, use of required in municipal undertakings, question of monopoly, 673, n. 42. PATROL, of police officers, 86. PAUPERS, and idiots may be excluded by state, 83, 271. excluded from immigration into United States, 271. compulsory support of poor by relatives, 270. compulsory removal of, to their places of settlement, 271. restriction to place of settlement, 271, 491. persons likely to become chargeable not paupers, 271, 491. PAWNBROKERS, reports of dealings, 43, 93. limitation of rate of interest to be charged by, 303, 733. incorporated pawners' societies, 303, 800 INDEX. [references are to sections.] PEACE, surety to keep peace, by one who has threatened breach, 89. bond required of one guilty of breach of, 109. PEDDLERS. See Itinerant Merchants. discriminatory tax upon, when selling articles from another state, 74. state license of, does not exclude municipal regulation, 157. may be forbidden to use streets, 173. regulation of and peddling, 288, 289. of imported articles, and freedom of commerce, 294, 295. administrative discretion in licensing, 654. non-resident peddlers and interstate commerce, 710. exceptions in favor of those selling wares of their own production, 732. exception in favor of those who have served in the army, 732. PENALTIES, as sanctions of police legislation, 26. must be proportioned to offense, 26, 638. PENAL LIABILITY, of railroad, for accidents, 637. of corporation in recovery of damages against, 637, 714, 727. PENSIONS, conditions attached to grant of, 24. fund for teachers', by deductions from salaries, 436. PERPETUITIES, conimou law rule against, 367. PERSONAL LIBERTY, and limitation of hours of labor, 317. and acts regulating payment of wages, 323. discussion of, 446-452. private consumption of liquors, 453-456. frcodom of social intercourse, 457. PETITION, frociioin of, 480. I'HAHMACIHTS. See Druugists. control of calling, as sanitary measure, 132. r'TTOTO(;i{APHINr!, for idiMitificalion of one not adjuro]»crty, 567. grant of use of public property if acted u\)nu is property right, 576. grant of use of public property a property right when rights have be- come vested, 57H, 579. rovocjible license to use streets, and rights acquired thereunder, 582. abolition of feudal tenures, 588. porpftiml covenants, or restrictions upon use of hnid, 590. entails, .Wl. Becularizatioii <>f xisting, by oxempfiim frntn new regula* tions, 687. INDEX. gQj [references are to sections.] EAILKOAD CROSSINGS. See Grade Crossings. precautions requiretl at, 116. requirements at, reasonableness of, 612. railroad required to keep in safe condition, 631. grade crossings, abolition of, 548, 556, 631. RAILEOADS AND COMMON CARRIERS. See Rates and Charges, Public Interest, Business Affected With. valid state regulation as to companies engaged in interstate commerce 73, 80. , ' requirement to stop at all stations or at county seats, 73, 397. freight trains may be forbidden to run on Sunday, 73. state regulation of rates, 73, 376, 571. state laws requiring safety appliances, 80, 723. regulation of railroad crossings, 116, 612. regulation as to qualifications of employes, 73, 116. liability for injury to passengers or damage to property, 79, 628-630. state safety regulation aflPecting interstate trains, 135. ordinance requiring flagmen at every crossing, 150. sale of tickets by unauthorized parties, 60, 61, 291, 298, 673, hours of labor of employes operating trains, 316. abandonment of trains by employees in case of strike, 333, 452. pooling, by interstate railroads, 341. reasonableness of rates, 379-385. discriminations in rates by, as to long and short hauls, and size of ship- ments, 390-392. classification of traffic for fixing of rates, 393. mileage tickets, 393, 397. sleeping car accommodations a matter of special contract, 395. establishment, maintenance, or discontinuance of depots, 395. equal access in depot to all owners of cabs, soliciting passengers, 396. requirement of track connections and connecting business 397. ' construction of railroad dependent upon administrative determination as to its necessity, 401, 659. legislation as to organization and capitalization of railroad companies 400, 401. '■ ' grade crossings, 548, 556, 631. determination of rates by state and interstate traffic, 551. equal protection of laws and unreasonable regulation of rates of 611 may be required to bear expense of railroads commissions, 622. legislation requiring fencing of tracks, 629, 637. liability of, for fires caused by sparks from locomotive, 630, 727. liability for injury to passengers, 632. absolute liability for injury, 633, 634. liability for bringing diseased cattle into state, 634. penal liability for injury, when not caused by negligence, 637. discrimination against, in recovery of claims, 637, 714, 727 735. discrimination by, based on local conditions, 690. requirement of separate coaches for blacks and white, 73, 695, 699. [references are to sections.] KAILROADS AND COMMON CAEEIERS— continued. interstate, doing business in state where not incorporated, 719. distinction between long and short hauls in regulations to prevent acci- dents, 727. RATES AND CHARGES. See Railroads, Public Interest, Business Affected With. public notice as to railroad rates, 41. legislative regulation must be reasonable, 63, 550. state regulation of, and interstate traffic, 73, 79, 551. legislative determination of rates of interest, 302-304, 733. charter right to fix, and state regulation, 363. English and American legislation regulating, in business affijcted with public interest, 374, 375. where business a monopoly, 376, 377. reasonableness, legislative or judicial determination of, 379-386. where business not monopolistic, 378. fixing of, a legislative function, 384, 385. taking of property by unreasonable regulation of, 380. (lifticulty of determining what charge is reasonable, 384. judicial regulation of, 385. conclusive determination by administrative boards, 386. discrimination in, by railroad companies, 390-392. requirement of sale of railroad mileage tickets at certain price, 393. regulation of, for services incidental to business, 394. bases for determining reasonableness of, 552-554. legislation changing, and existing contracts, 555. determination of, in corporate charter, as contracts, 570-572. depriv:iti()ii of equal ])rotection of laws and unreasonable regulation of, till. REAHO.NAHLENESS. See Judicial Control. pritifijiie of, (53. in municijial ordinances, 33, 142, 150, 158, 286, 292. in legislative nieaHures, 15(1, 151, 158. of regulation of offensive establishments, 177, 178. in rcHtrietive legislation regarding children, 259. ' in limitation of hours of labor, 313, 317. in regulation of payment of wages, 321. logiKlative and jndicijil control as to charges by business affecteil with imbli.- iiitorest, 379-385. attitude of federal court as to, in state r(>gulatioii of cli.irgcs, 382, of improvemenis re(|uired to be made to property, 549, 618. of rales fixed by legislature, 550, bases for determining, as to rates, 552-554. of r.'ifes of corpor.'itions, .'572. REHATES, by manufacturer to ono handling his goods only, 346. RECCKSMZANCE. to keejp the peace, SO. INDEX. y09 [references are to sections.] REFOEM SCHOOL OR INSTITUTION. See Parent and Child. commitment of children to, 260-262. judicial control of discharge from, 263. REGULATION, distinguished from restraint and prohibition, 28. in general, 35-40. to secure publicity, 35. includes partial 'prohibition, 58. of use of streets, 165-169, 172-174. of places of public resort and meetings, 175. of sale of liquors, in general, 206-212. principles governing prohibition and, 285. . » prejudicial regulation of property and compensation, 512-517. REGKATING, English legislation against, 338. REGISTRATION, as means of control, 42. of strangers in United States and Europe, 45. objections to registration, 46, note 12= of sales of weapons and poisons, 43, 93. RELIGIOUS MEETINGS, protection of, 175, 464. RELIGION. See Mortmain, Public Schools. freedom of, and state control of education, 266. holdings of property by religious societies, 369, 466. constitutional guaranty of freedom of, 458. sectarian legislation, and state support of church, 459, 460. religious disqualifications, 461. state recognition of, 462. reading of Bible in public schools and freedom of, 463. protection of religious meetings, 464. blasphemy, 465. organization of religious societies, 466. limits of religious freedom, 467, 468. faith cure, and compulsory medical treatment, 144n., 447, 468. conflict of civic and religious duties, 469. REMEDY. See Proportionateness of Means to End. RENDERING ESTABLISHMENTS. See Offensive Trades and Estab- lishments. RENTS, prohibition of perpetual, 370, 371. . commutation of existing perpetual rents, 589. REPORTS. See Incriminating Reports. in general, 42. as applied to business, 43, 93. requirement of license and constiutional protection against self-crim- ination, 55. 810 INDEX. [references are to sections.] KEPUTATIOX, bad reputation not a punishable offense, 94-96. RESTRAINT OF TRADE. See Combinations in Restraint of Trade. RESTRAINT, in general, 22. defined and discussed, 28-30. whether constitutional where criminality in each case left to deter- mination of jury, 28. RETROACTIVE LEGISLATION, and property acquired under previous legislation, 538, 540, 545, 683-687. regulation of professions and, 542, 544, 545, 683-685. • affecting contracts, 555. protecting debtors, 557. federal laws regarding legal tender, 558. liquor legislation affecting existing conditions, 683. establishment of fire limits, not retroactive, 685. RIOTS AND UNLAWFUL ASSEMBLIES, powers of summary repression, 88. killing in suppression of, 445, n. 1. officer may require assistance of anyone at hand in repressing, 614. destruction of liquor in apprehension of, 537. RIPARIAN OWNER. See Navigable Waters. compulsory association of owners to prevent inundation, 114, 442, 619. duty of owner to build or preserve embankments, 114, 409, 619. title of owner, extent of, 403. owner's easement of access to navigable stream, 408. owner's easement subordinate to public right of navigation, 408, 509. may be forbidden to weaken his land to injury of other property, 619. HIVHHS. See Waters and Watiok Courses, Navkjable Waters. SAFETY, growth of safety legislation. 111. principal subjects of legislation, 113-121. legislation for, and Fourteenth Amendment, 134. leffiHlatioii affecting commerce, 135-139. local powers, 140-142. qiieHtioriH involved in safely legislation, 143-155. labor legislation for, 310. dlHi-rimination in safety legislation, 727. KAII-OKS. Sc.. Rkamkn. .SALOO.NS. Scf LiyuoRS. regulations as to internal .iriJingements, 52. women as wnitroHSCH, or frequenting, 244, 703. wine rooms, 2M. (lc<-iHi(iti by jieople of lucnlity concerned as to whether one shall be pftfablisheij, 645. ngulnfionH api>lying to existing, 683, HAI/ri'KTHK, prerogative to dig for, .'illt, rjSG, INDEX. y^l [references are to sections.] SCALPERS, TICKET. See Ticket Brokerage. business prohibited, 61, 291. SCHOOLS. See Public Schools, Education. SCIENCE, FREEDOM OF. maintenanee of, necessary, 15. and legislation regarding practice of medicine, 152-154 and offensive publications, 237-239, 479. SEAMEN, federal control over contracts of, 329, 451. tax upon, for support of Marine Hospital, 434. SECOND HAND ARTICLES, regulation of sale of, 93, 130. SECRET SOCIETIES, legislation regarding, 481, 482. SECURITY OF GOOD BEHAVIOR, in case of threatened crime, 89. of one guilty of breach of peace, 109. SECURITY OF THE PEACE, in case of threatened breach, 89. SECURITY HOLDING CORPORATION, whether form of monopoly, 351. SEDITION AND SEDITIOUS LIBEL. See Libel. SERVANTS, enticing from masters, illegality of, 333. indentured servants in American colonies, 450 n. 18. SERVITUDES. See Easements. SEXUAL VICE, in general, 234. SHEEP GRAZING, forbidden within two miles of dwellings, 171. SHERMAN ANTI-TRUST ACT, forbidding combinations in restraint of trade and commerce, 341. interpretation of, 354, 355. SHIPPING. See Vessels and Navigation. SIC UTERE TUO UT ALIENUM NON LAEDAS, principle and its application, 8, 406, 439. SIDETRACKS, of railroads, for use of factories, &c., 162, n ; 427 n. 35 SIDEWALKS, obstruction of, 169. removal of snow and ice from, by abutting owner, 620. building and keeping in repair by abutting owner, 620 and n, SIGNS AND STAMPS, to indicate ingredients of articles to be sold, 41. SLAUGHTER HOUSES. See Ofb'Ensive Trades and Establishments. municipal power over, 129, 177. mumcipal power in location of within city, 141, 179, 640. 812 INDEX. [references are to sections.] SLAUGHTER HOUSES— continued. prohibition of, within city, 565, 640. slaughter house cases, 609, 669. license to erect dependent upon administrative discretion, 643. municipal monopoly of, 667. grant of monopoly to private corporation, as means of police control, 669, 671. revocability of monopoly, 679, 680. prohibition of future erection of, as discrimination in favor of existing establishments, 687. SLAVERY, abolition of, question of compensation, 584-586. SMOKE ORDINANCES, reasonableness of, 177. SNOW, removal of from roofs of houses, 616. removal of from sidewalks, 620. SOCIAL CONTROL, right of association for, 484. SOLICITING, onlcra by personal calls, 288. SPECIE CONTRACTS. See Contracts. enforcement of, 559. SPECULATION. See Options and Futures, Gambling. prohibition of, how far constitutional, 59. options and futures, 200, 201. legitimate, 199, 202. foreign legislation concerning, 203. SPEECH AND PRESS, FREEDOM OF. See Publications development of, and constitutional guaranty, 471. and law of libel, 472-475. and attacks u])on government, 477, 47.S aiul ii. does not extend to incitement to crime, 476, 477. and scientific i)ublicationB, 479. SPITTING, in public conveyance^, whether within .)urisdictiou of board of hciiMh, U7. SPENDTIIHIITH, may bo doi»rivod nt' tiintiM^i'tncnt nt' tli<'ir property, 431. STAGE CKNSOHSHII', Kuropc.'in nnd American regulations, 251. HF'OKTS. dnngeroiiH Hportn, 120. brntal Hfiortn, 24M. STAK rilA.MI'.Kk. court of, referred to, 171, 4H1. INDEX. 813 [references are to sections.] STATISTICS AND STATISTICAL INFORMATION, requirement of, 44. ministers required to report marriages, physicians required to report births and deaths, 613. STATUTORY OFFENSES, knowledge presumed, and wrongful intent dispensed with, 635, 636. STEAM ENGINE. See Engineer. license required of engineers, 493. revocation of permit to keep, by administrative officer, 643. boiler inspection, exemption of locomotives, 727. STOCK EXCHANGES, legitimacy of business in, 59, 202. foreign regulation of, 203. STOCK YARDS, as places affected with public interest, 390. STORE ORDER ACTS. See Truck System. STREET RAILWAY. See Rates and Charges, Streets. restriction of number of passengers to a car, 175. may be required to keep part of street occupied by it clean and free of dust, 612, 620. cannot be forced to carry policemen without pay, 613. municipal power to grant franchise to, 163, 658. a monopoly of necessity, 658. franchise under special legislation, 660. permission to operate does not exclude similar grant to others, 675. exclusive track rights granted by city, strictly construed, 678. STREETS, use of, by private vehicles a right, 38, 168. municipal power over, 160-164. control of, when fee remains in adjoining owner, 160. encroachments on, 161-163. common use of, right to, 165, 167-169. . right of city to vacate street, 166. freedom from obstruction, 168, 169. preservation of order on, 169. special uses of, by abutters, 172. use of, for business purposes, license for, 173. parades, processions and meetings upon, 174, 468, 480, 643, 644, 729. names, affixed to private houses, 519. license to use, for term of years as contract, 574, 576. exclusive grant of use of, 577. revocable license for use of, 582. removal of snow from sidewalks by abutting owner, 620. railroad required to improve crossing for new street, 631. STRIKES, legality of, 332. illegal acts accompanying, 333, 334, 336. constitutional power over, 335. Q-^^ INDEX. [references are to sections.] STRIKES — continued. may they be forbidden because source of disorder? 336, 337. and trusts, 337. and interference witli interstate trains, 341, 356. SUBCOXTKACTOR'S LIENS, how far owner can be made liable, 626 n. SUMPTUARY LAWS, history uf, 430. SUNDAY, freight trains may be forbidden to run on, 73, 80, 159 state regulations for observance of, 184-186. laws and religious liberty, 470. prohibition of work by barbers on, 735. SUSPECTS OR SUSPICIOUS CHARACTERS, duties of police officers regarding, 86. treated as criminals, 95. detention of, on charge of vagrancy, 100. photographing and measuring, 103. SUSPENSION OF SENTENCE. of convicted persons, as means of control, 108. SUSPICION. See Suspects. as evidence of crime, 95. cannot be basis of jiunisliment without some specific offense, 95, 96. SUPPRESSION. See Pkohibition. TARIFFS, PROTECTIVE, against foreign competition, 12, 428. and commerce clause, 65. TAXATION, of commerce, 70, 73, 74, 295. exemption from, as contract, 363, 561, 568. (•x<'m|itioii of certain industries from, forbidden, 428. exemption of property of religious societies from, 464. TAXINC POWKR. See License or Occupation Tax. for revenue purposes, 4. p\ib!ic jiurpoHe, 23. an power of restraint or encouragement, 25. Mid the commerce clause, 70. TELKCKAI'H AND TELKPIIONE, regulation of rates, '.\7(). legihlation against discriiniiiiiliori in i;itrs, .'iiHI. arrangements between r(iiii|i.ini(s tor transmission of messages, must bo matter of 8j)ecial contract, 395. other regulations, 39S. niilil.irv tele^mph linoH, control of, in tin f \v;ir, 471, note. telegraph (-ompanies ;nilliorizcd to cstablisli lines ,ilong post roads, 719. TENEMK.VT HOUSES, fire CHI apes in, 34. requirement that goods be marked "tenement made," 51. INDEX. 815 [references are to sections.] TENEMENT HOUSES— continued. regulation of, in interest of health, 128, 542. unwholesome businesses in, 151. destruction of, as sanitary measure, 520. regulation of, and retroactive legislation, 538. TERRITOEIAL SOVEREIGNTY, as sustaining power to exclude foreign-built and foreign-owned vessels 65. ' TERRITORIES, federal police power in, 67. THEATRES, requirements in, for safety and comfort, 175, 251. control over by censorship, 251. American theatre regulations, 251. employment of children as actors may be forbidden, 259. THREATS, to commit crime, security of peace, 89. in case of strikes, 333, 334, 336. TICKET BROKERAGE, prohibition of, 61, 291. regulation of, 291. regulation of, and interstate commerce, 295. law confining business to railroad appointees, invalid, 673. TOLERATION, religious, 459, 465. political, 475, and see libels, and anarchism. TORRENS REGISTRATION LAW, constitutionality of, 437. TRADES AND OCCUPATIONS. See Professions, Architects, Drug- gists, Auction Sales, Barbers, Peddlers, Plumbers. legislation giving associations power of admitting to, 56, 647. legislation controlling certain, in interests of health, 130, 131. regulation of, 492-494, 639. state certification as means of control, 495. qualifications to pursue, and rules framed by administrative body, 649. requirement of good character in order to engage in certain, 651. restriction to citizens, 706. TRADE MARKS, common law protection of, 664. TRADE SECRETS, revealing of, as form of unfair competition, 288 n. TRADE UNIONS. See Conspiracy, Law of ; Strikes. coercion by employer against membership in, 326, 735. and combinations of employers, 326. earlier legislation and decisions, 330, 331. strikes, 332, 335, 336. illegal methods in strikes, 333, 334. 816 i^'^^^- [references are to sections.] <» TRADE rXIOXS — continued. influeneing other employes to join, and coercion, 333, 334. and trusts, 337, 356. TRADING STAMPS, legislation forbidding use of, 60, 293. whether of nature of lottery, 198, 293. TRAMPS, defined so as to include males only, 702. TRESPASS, entry for public purposes not, 518. on wild land allowed, under what circumstances, 518. TRUCK SYSTEM. See Wages. legislation to force payment of wages in cash, 319-321. discrimination against certain businesses in legislation against, 320, 321, 735. TRUSTS. See Combinations in Restraint op Trade, Monopoly, (;on- SPIRACY, Law of. and labor organizations, discrimination between, in legislation, 337, 356. state legislation against, 339, 340. federal legislation, 341. state and federal power as to corporations doing interstate business, 342. common law rules and their applicntion against, 343-353. trust organization, 350. present organization of, 351, 352. interpretation of anti-trust acts, 354. conHtitutionality of anti-trust legislation, 355. laws against, and exception of agricultural products, 356, 734. TRUSTS, ELEEMOSYNARY, Dartmouth College doctrine, 597. where use to whi<'h property devoted is impracticable, or contrary to public poli.y. 59K, (iOO, 602. rcHcrved power over charter of corporation, cannot destroy purpose for which created, if legal, 599, ()02. l-'tigiish IcgiHiation iir to trusts wliicti hnvc liecnmo useless or harm- ful, 601. PruHHian laws as to trusts, 601 n. TUNNELS, right to maintain yrsiiitcd siitijcr-t to rtvuiircrnciits of navigation, 576. UNK.MK coMi'K'rrriox, what Ih, 288, note 11. UNION LAMOR, rf<|iiircd for work innlcr city <(mtr:icts, 673, n. 43. UM.AWITI, ASSKMMI.V. Sec AKStCMBl.Y. UNHHilill.lNKSH, pf.licc regulation of, 180-183. of iidvertiHementH, 182. INDEX. 817 [references are to sections.] UNWHOLf:SOME OCCUPATIONS, in tenenient houses, 128, 151. as nuisances, 176. confinement to specified districts, 179. USEFUL BUSINESS, cannot be entirely forbidden, 59, 62, 401. USURY. See Interest. history of legislation, 302. American legislation, 303. constitutionality of legislation, 304. exceptions in laws, in favor of pawnbrokers, and building and loan associations, 733. VACATION, of streets, 166. VACCINATION, compulsory vaccination, 144 n., 447. VAGRANCY, discussed, 97-100. definition of, 97. as criminal offense, 99. detention for, as means of dealing with suspects, 100. prostitution as, 97, 98, 244. living upon earnings of prostitutes as, 246. punishment of vagrant for leaving county of residence, 491. VAULT, under sidewalk not a nuisance per se, 162. VEHICLES, license of, as a police measure, 168. stopping of, and obstruction, 169. VESSELS, registry, 65. built abroad and owned by non residents, 65. regulations to prevent collisions at sea, 117. forfeiture of, when engaged in unlawful oyster fishing, 525, 527. federal license of officers, and liability of owners of, for their actions, 624, 625. VESTED RIGHTS. See Property. property rendered useless by change of legislative policy, 539-541. repeal or change of charter under which acquired, 362, 363. in a profession, or occupation, and retroactive legislation, 54^3-547, 683-685. licenses to conduct lotteries, 563. license to sell liquors, 564. license to use public streets or property, 578, 579. economic or social reforms and, in general, 583-601. business established under license of reasonable duration as, 580, 602, 681. 52 gig INDEX. [references are to sections.] VINEGAB, coloring of distilled, forbidden, 32. VIOLENCE. See Strikes, Anarchism. VIVISECTION, regulation of, 249, 479. VOTING, conditions annexed to, 14. laborers given time to vote, 314. coercion by employer t'^ prevent or influence vote of employee, 325. by women, 701. WAGES. See Truck System, Strikes, Conspiracy, Law of. rate of, 318. payment of, at stated intervals, 319-321, 715, 735. accrued, wages, of discharged laborer, to be paitl without abatement, 319 n. truck acts, 319-321, 502, 735. legislation to force payment in cash, 319-321. combinations to raise, early law regarding, 330, 331. recovery of attorney's fee in action for, 319 n., 714, 735. assignment of future, forbidden, 319 u. garnishment of, 301 n. WAR, destruction and ;ii)jir(ipriiitioii in time of, 536, 537. censorship in time of, 471. WAHHIIOUSING. See Grain Elevators, Public Interest, Business Affected With. requirement of service without discrimination, 390. reguhition of, 297. warehousemen not allowed to store their own grain, 297. rates charged in, regidation of, 376. re(|uirenient of service without discrimination, 390. niMiio|M)iy to licensed wareliousenien, uucoustitutiouul, 397 u. W AH KANT, re<|uirement of, for nrrest, 87. WASTK, of Tiafural gas, 422. of walir in arlcsinn wells, 425. W.\TKU A.\i) WATKK COURSES. See Navioable Waters, Riparian OWNKR.S. rifiarian riglits, 4(13-409. mill dam privilegeH :ind Hooding of land liy dams, 410-412. flooding land by other uhch of, 41.S. control of use, for mining and irrigation, 414-417. cntMng of ice from |iid)lic waters, 417 n. natural water, and neigldxir's rights, 425. WATKR HATKS, r.giilalion of, 376, 571. determination of, an contract with company, 571. INDEX. 819 [references are to sections.] WATER WORKS. See Water Rates. charter to company to erect, and competing municipal establishment, 677, 678. exclusive monopoly to, a contract, 679, 680. WEAPONS. See Arms. report or register of sales, by dealer in, 43, 93. constitutional provisions as to carrying, 90. WEEKLY PAYMENT ACTS. See Wages. WEIGHTS AND MEASURES, federal power, 65, 273. federal inaction and state regulation, 273-275. official inspection of, 274. WHARFS, PIERS AND DOCKS. See Navigable Waters. state and local power over, 80. encroachments upon navigable waters by, 163. regulation of landing vessels at, 175. regulation of rates of wharfage, 373. when buildt by riparian owner, he cannot be deprived of them without compensation, 406. right of riparian owner to erect, 408. WINES, used for sacramental purposes, 224, exception in favor of native wines, in state prohibition, 214, 215. WOMEN. See Women and Children. limitation of hours of labor, 311-314. prohibition of labor in mines, 258, 311. civil and political rights of, 701. right to practice law or engage in other employment, 702. employment of, in liquor business, 703. UC SOUTHERN REGIONAL LIBRARY FACILITY AA 000 729 628 UNIVERSITY OF CALIFORNIA LIBRARY Los Angeles This book is DUE on the last date stamped below. NOV 27 1970 DEC 10 1977 AUG 181985 Form L9-Series 4939