The police power, public policy and constitutional rights online

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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.

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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 an<l dcitosits.

Notices, tiiiirhs and si(fns.

i 11. I'urpoHc and application.

Reports and Registration. §§ 42-46.

I 42. In general.

I 43. As applied to business.

I 44. v;. ....â– .,.., I information.

I 4.'5. . m and regist ration of strangers.

I 4'!. H4'giiitratton and c<)uality.

Inspection. 5§ 47, 48.

I 47. InirpiTdion and search.
I 4H. Hccrwrjr of Jotters.

S'otice of a prrjudicial character. §§ 49-52.



f 49. Offensive roloring.

I 60. ({(nnIs marked mnvlct made.

f fiL OotkIs marked tenement made.

I 62. RcHutling iujury.



CONTENTS. ix

Notice of an incriminating character. §§ 53-55.

§ 53. Eequiring statement as to lawful conduct of business.

§ 54. Immunity from prosecution.

§ 55. Obligation to report subject to claim of privilege.

Com'pulsory association. §§ 56, 57.

§ 56. Legislation using it as a means of control.
§ 57. Principles applicable.

Prohibition. §§ 58-62.

§ 58. Meaning of prohibition.

§ 59. What kinds of business may be prohibited: lotteries, speculation,

liquor.
§ 60. Trading stamp business.
§ 61. Ticket brokerage.
§ 62. Oleomargarine legislation.

The principle of reasonableness.
§ 63. Enforcement by courts.

CHAPTER III.

THE FEDERAL GOVERNMENT AND THE POLICE POWER.

§ 64. Police power in a federal state.

Positive police legislation of the federal government. §§ 65-67.

§ 65. Powers of Congress.

§ 66. Commerce and navigation.

§ 67. Indians and territories.

Control over state police power. §§ 68-85.

§ 68. Constitutional provisions applicable.
§ 69. The fourteenth amendment.

The commerce cla',:se. §§ 70-85.

§ 70. Different subjects of legislation.

§ 71. Immigration and quarantine.

§ 72. Navigation and navigable waters.

§ 73. Railroads and common carriers.

§ 74. Peddlers, auctioneers, brokers, and drummers.

§ 75. Inspection laws.

§ 76. Liquor.

§ 77. Foodstuffs and live stock.

Principles underlying the decisions of the Supreme Court. §§ 78-85.

5 78. Nature of distinctions.

§ 79. Business which is commerce and business which is not commerce.

§ 80. Local and national aspect of commerce.



^ CONTENTS.

9 81. Point at which commerce ceases to be interstate or foreign com-
merce; original package doctrine.

g 82. The principle of non-discrimination.

9 83. Things which are lawful articles of commerce and things which
are not. State power of exclusion.

I 84. Conflict between state policy and freedom of commerce.

( 85. Summary of principles.

SECOND PART: THE PUBLIC WELFARE.

FIRST: THE PRIMARY SOCIAL INTERESTS: SAFETY, OEDEE

AND MOEALS.

CHAPTER IV.

PEACE AND SECURITY FROM CRIME.

S 86. Police patrol and general vigilance.

5 87. Arrest.

J 88. Suppression of riot.

89. Security of the peace.

90. Concealed weapons.

91. Military organisations.

92. Bodies of armed men.

93. Restraints upon business and upon particular dealings.

94. Criminal character.

95. Reputation.

96. Kno\vn thieves.

97. Vagrancy, vagabondage and criminal idleness.
9H. Vagrancy not a status nf dependence.
99. Vagrancy a criminjil oflfense.

100. Vagrancy as a means of dealing with suspects.

101. Control over irnmigr:ition.

102. Control over criniiiialH :iftcr conviction.

103. Mcuxnreii during imprisonment.

104. Conditional pardon.

105. Indeterminate Hcnfencc laws and parole.

106. QucMlion of delegation of juilifial powers.

107. I'lirolc con<litionn a form of police Hujicrvision.

108. Suapcniiion of ncntence and probation.
IW. K«'<Mirity of jjood behavior.
IKi. ninabilitics of ox-convictH.

rilAPTKU V.

PAKETY AXn HEALTH.

1111. c;rnw(h of loginlation.

1112. Priodpul nubjoctii of legislation.



CONTENTS.



XI



Safety legislation. §§ 113-121.

§ 113. Classification of subjects.

§ 114. Protection against overflow and inundation,

§ 115. Mines,

§ 116. Kailroads,

§ 117. Ships and navigation.

§ 118. Buildings and structures.

§ 119. Dangerous machinery, inflammable materials, explosives, poisons, &c.

§ 120. Dangerous sports.

§ 121, Destructive animals and vermin, noxious weeds, and other pests.

Sanitary legislation. §§ 122-133.

§ 122, Scope of state activity.

§ 123. Persons. Immigration and quarantine.

§ 124. Marriage.

§ 125. Burials and cemeteries.

§ 126. Dead bodies.

§ 127, Land, structures and buildings.

§ 128. Buildings and other establishments.

§ 129. Foodstuffs, &c.

§ 130. Other articles of consumption,

§ 131. Employment,

§ 132, Qualification for the exercise of callings affecting health.

§ 133. Practice of medicine.

Limitatio7is of the federal constitution upon the police power for the protec-
tion of safety and health. §§ 134-139.

§ 134. Fourteenth Amendment and commerce clause.

§ 135. Safety legislation affecting commerce.

§ 136. Federal power not exclusive of protective state legislation.

§ 137. Exercise of state police power not conclusive.

§ 138, Discriminative legislation under color of sanitary power.

§ 139. Louisiana v. Texas.

Local powers for the protection of safety and health. §§ 140-142,

§ 140. Delegated ordinance powers.

§ 141. Principle of construction.

§ 142. Judicial control as to reasonableness.

Limitations of health and safety powers with reference to conditions and

measures. §§ 143-155,

§ 143, The problems involved.

S 144. Inconclusiveness of legislative judgment.

§ 145, Judicial notice of established scientific laws and general conditions.

§ 146, Sanitary purpose need not be expressed.

§ 147, Difference of objects as justifying different measures.

§ 148. Measure must tend to remove danger.



jjj CONTENTS.

S 14y. Measure need not be tne most adequate conceivable.

{ 150. Measure proportionate to danger.

S 151. Interference with established economic or social conditions.

15 152-154. The practice of medicine and freedom of science.

{ 155. Measures restraining a class for its own protection.

CHAPTER VI.

PUBLIC ORDER AND COMFORT.

Authority exercising the power. §§ 156-159.

I 156. Municipal ordinance power.

9 157. Concurrence of local and state authority.

I 158. Reasonableness.

I 159. Order and freedom of commerce.

Power over encroachments on streets. §§ 160-164.

I 160. Fee and easement.

J 161. Control of public use.

( 162. Customary encroachmente.

f 163. Power to j)rohibit and regulate.

I 164. Pnifi-.tiiiri of streets from injury.

J he comn.nn rir/ht to use jmblic places. §§ 165-170.

I 165. Nature of common use.

I 16<1. Power to vacate highway.

I 167. Power over use of street not absolute.

I 168. Rztcnt of common use.

I 169. Ohntruption and disorderly conduct.

I 170. Pro of rivers.

I 171. Kigbt to use parks, public buildings, etc.

Sjii.i.il street uses.

I 17... Si'fii.il iiHOH i.f ahuttcrs.

I 173. I'lw for profit.

I 174. Vbo for pnrndeii, processions, public addresses and meetings.

Pover over places of public resort in private ownership.
I 175. Subject to police regulation.

Offcnsivenrss. S§ 170- 179.
I 176. n^rr..:r,.n«-. ^^ f^ nuiwince.
I "7- â–  r over ofTcnHjvo establishments.

I I7H. K«<«ii«nnblono«Mi of ntnndards.
I I7». AMiitrnmrnt to npeoifled dixtrirfs.

Untightliurss. S9 180183.

I I«0. I.Jmitinjt Ihp height of buildingw ndjarent fo public parks.
I Ml. HuiWlititf fpgulntionii not for i)urely aesthetic purposes.



CONTENTS. xiii

§ 182. Unsightly advertisements.
§ 183. Flag legislation.

Sunday rest. §§ 184-186.

§ 184. Legislation.

§ 185. Protection of customary quiet.

9 186. Prohibition of business.

CHAPTER VII.

PUBLIC MORALS.
§ 187. In general.

GAMBLING.

§ 188. Justification of exercise of police power. § 730.
§ 189. Games for pastime and recreation.

Games of chance. §§ 190-191.

§ 190. Legislation.

§ 191. Aggravating circumstances.

Games of sJcill and contests. §§ 192-195.

§ 192. Playing for money.

§ 193. Billiard tables and bowling alleys.

§ 194. Horse races.

§ 195. Betting.

Lotteries. §§ 196-198.

§ 196. Authorized lotteries.
§ 197. Definition of a lottery.
^ 198. Gifts to attract custom.

Speculation. §§ 199-203.

§ 199. Legitimate speculation.

§ 200. Stock and produce speculation.

§ 201. Legislation restraining dealings in futures and options.

§ 202. Places facilitating speculation.

§ 203. Foreign legislation regarding exchanges.

CHAPTER VIII.

PUBLIC MORALS (Continued). INTOXICATING LIQUORS.

§ 204. Constitutional basis of control.

§ 205. Principal points of legislation and policy.

1. 'Regulation of the liquor traffic. §§ 206-212.

S 206. Right to sell without license or issue of license as a matter of right —

exclusion of administrative discretion.
5 207. Right to sell subject to statutory disqualifications and conditions.



XIV



CONTENTS.



§ 208. Requirement of a Ucense to be issued as a matter of judicial dis-
cretion.
9 209. Judicial control.
§ 210. Considerations guiding discretion.
§ 211. Absolute limitation of numbers.
5 212. Right to sell depending upon uncontrolled discretion.

2. Prohibition. §§ 213-217.

( 213. Constitutionality.

{ 214. State wide prohibition.

i 215. Scope of prohibition.

I 216. Local power of prohibition.

I 217. Local option.

3. Public monopoly. §§ 218-219.

I 218. South Carolina dispensary law.
I 219. Gotenburg system.

4. Liquor not used as a beverage. §§ 220-224.

I 220. Subject to control.

I 221. Liquor unsuitable for drink.

I 222. Liquor suitable but not intended for a beverage, under the system

of restrictive legislation.
I 223. The same under the system of prohibition.
I 224. Sale of wine for sacramental purposes.

5. The excessive use of intoxicating liquors. §§ 225-227.

1 225. Intoxication.

I 226. Habitual intemperance.

I 227. Compulsory conimitnient to asylums.

0. The liquor traffic and the federal co7istitution. §§ 228-233.

I 228. I'rovjsions applicable.

I 229. Hif^ht i>f 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«iri<nc prrformnncrn and publications.



CONTENTS. XV

§ 237. Tests of obscenity.

§ 238. Legitimate purposes : science, social reform, etc.

§ 239. Art and literature.

Illicit sexual intercourse. §§ 240-246.

§ 240. Notorious cohabitation.

§ 241. Autonomistic marriage.

§ 242. Prostitution. Scope and ground of state control.

§ 243. Systems of legislation.

§ 244. Measures against prostitutes.

§ 245. Houses of prostitution.

§ 246. Practices in aid of prostitution.

2. Brutality and inhumanity. §§ 247-249.

§ 247. Legislation.

§ 248. Brutal sports and entertainments.

§ 249. Cruelty to animals. Vivisection.

3. Public amusements. §§ 250-251.

§ 250. Ground and scope of police control.

§ 251. Control over theatres. Stage censorship.

CHAPTEE X.

CONTROL OF DEPENDENTS.

Insanity. §§ 252-256.

§ 252. Restraints placed on the insane.

§ 253. Provisions held defective.

§ 254. Constitutional requirements.

§ 255. Eight to discharge.

§ 256. Control of private asylums.

Minors. §§ 257-267.

§ 257. In general.

§ 258. Restrictive legislation.

§ 259. Constitutionality.

§ 260. Parental right of custody and commitment to reform institutions.

§ 261. Dependence or delinquency.

§ 262. Notice to parent.

§ 263. Discharge from institution.

§ 264. Compulsory education.

§ 265. Truant schools.

§ 266. Power over private education.

§ 267. Power over graduate instruction.

Pauperism and charity. §§ 268-271.

§ 268. General attitude of the state.

§ 269. The state and private charity.

§ 270. Compulsory support by relatives.

§ 271. Restrictive measures against paupers.



^^j CONTEXTS.



SECOXD: ECONOMIC IXTEEESTS.

PROTECTIOX AGAIXST FRAUD AND OPPRESSION.

PUBLIC CONVENIENCE AND ADVAXTAGE.

CHAPTER XI.

PROTECTIOX AGAIXST FRAUD.

S 272. Preventive measures against fraud.

Weights, measures and packages. §§ 273-275.

5 273. Legislation.

9 274. Detcrmiuation and verification of standards.

S 275. Compelling certain modes of dealing.

Inspection laws. §§ 276-278.

S 276. Scope of legislation.

S 277. Validity under federal constitution.

{ 278. Restrictions under state constitutions.

Substitutes, imitations, adulterations. §§279-286.

I 279. Poor quality without deception.

i 'J80. Deceptive practices. Adulteration.

9 28L Commodities to which legislation applies. Gold and silver.

{ 282. Oleomargarine legislation.

S I'm:?. .\hH()!ute prohibition.

S Ust. I'riiliibition of imitation.

9 285. Principles governing regulation and prohibition.

9 286. Ordinances.

Forms of business liable to abuse. §§ 287-295.

I 217. Nature of danger or <>vil.

{ 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 nn<l trade Htamps.

5 - etc., and the freeilr)m of commerce.

h'idtlttjt uf agents, ili pimilnni s, (nitl litistrrs. §§ 296-297.

5 orpnmlionii, banking, insurannc.

i ..j'l". Wjirrh(i\iiM'mrn and commiHsicm merchants.

9 ~t>H. Public inlereMt in prevention of fr;ni<l. Tioftliiig Acts.



CONTENTS. xvii

CHAPTER XII.
PEOTECTION OF DEBTORS. -
§ 299. Protection against oppression in general.

Collection of debts. §§ 300-301.
§ 300. Scope of legislation.
§ 301. Annoying practices in the collection of debts.

Usury laws. §§ 302-304.
§ 302. History of legislation,
§ 303. American legislation.
§ 304. Question of constitutionality.

BanJcrvptcy legislation. §§ 305-307.
§ 305. Power to relieve insolvents.
§ 306. Prospective state insolvency laws,
§ 307. Retrospective bankruptcy legislation.

Legislation against contracts payable in gold. §§ 308, 309.
§ 308. Statutory provisions.
§ 309. Constitutionality.

CHAPTER Xni.'

PROTECTION OF LABORERS.

§ 310. In general.

§ 311. Restriction of hours of labor of females.

§ 312. Commonwealth v. Hamilton Mfg. Co.

§ 313. Ritchie v. People.

§ 314. Question whether measure sanitary or social.

§ 315. Legislation for adult laborers.

§ 316. Hours of labor.

§ 317. Question of constitutionality.

§ 318, Rate of wages.

§ 319. Payment of wages: weekly payment and store order acta.

§ 320. Judicial decisions.

§ 321. Constitutional principle.

§ 322. Imposed conditions and penalties.

§ 323. Penalty for leaving without notice.

§ 324. Fines for imperfect work.

§ 325. Coercion to influence or prevent the exercise of political rights

§ 326. Coercion against membership in trade unions.

§ 327. Blacklisting and clearance cards.

§ 328. Employment brokerage.

§ 329. Federal legislation for the protection of labor.

CHAPTER XIV.

COMBINATIONS OF LABORERS.

§ 330. Combinations under the English law.
§ 331. Earlier American cases and statutes.



iVUl



CONTENTS.



S 332. Question ol the legality of strikes.

S 333. Intimidation and coercion.

5 334. Malicious interference.

5 335. Constitutional power o%er strikes.

5 336. Strike as a source of disorder.

5 337. Strikes and trusts.

CHAPTER XV.

COMBINATIONS OF CAPITAL.

RESTRAINT OF TRADE, MANIPULATION OF PRICES, ANU

TRUSTS AND MONOPOLIES.

S 338. English legislation.

S 331t. American legislation.

§ 340. Analysis of provisions.

S 341. Federal anti-trust legislation.

5 34::. Division of control between states and United States.