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adjudged the State action to be proper, authorize double recovery for cattle injured and then contrast with these cases which by a railroad company which failed to erect have been pronounced invasions of private and maintain such fences'; or make liable rights. Let us consider them under the by statute a person having in his possesconstitutional guaranties.

sion “Texas cattle” for any damage re

sulting from the spread of a contagious No person shall be deprived of life, liberty,

disease from them." or property, without due process of law.'

The State may regulate or prohibit the Nor shall private property be taken for manufacture or sale of intoxicating liquors public use without just compensation."" within its limits. It may regulate charges Under this head the court has held that in public warehouses for warehousing a State might forbid the manufacture of and inspecting grain, on the ground that oleomargarine for use as food," or forbid the property is devoted to public use the carrying on of a business producing and therefore subject to public con- odors noxious to the public health,' or trol.' It may grant to a corporation the prohibit the sale of intoxicating liquor exclusive right to slaughter animals for in existence either before or after the pasfood within a certain prescribed territory sage of the statute," or regulate the rates about a city, even though this act impairs of charge for handling grain in grain elethe value of property formerly devoted to vators." Police power and eminent domain such use; or prohibit the manufacture of are distinct, but sometimes in the exercise substances noxious to the health of the of police power private property is taken community without making recompense to for public use, when compensation must the owners of the property injured by the be made." This does not apply to cases prohibition, who had been chartered by the where the act is within the police power State to carry on the business subsequently and incidentally injures private property, prohibited'; or provide that clothes-wash- as where private property is destroyed to ing in public laundries should be done prevent further spread of fire. Whenever only within certain hours and under certain the State has made a contract it may not conditions.' It may pass a law making impair it under claim of police power. every railroad company in the State liable When a State gives permission for the for all damage occurring to its employes carrying on of any enterprise involving the through negligence of its agents'; or health and morals of the community, it compel a railroad company to erect and does not bind itself by contract, but gives maintain fences along the sides of its road merely a revocable license.'' so that cattle might not be injured ; or

9 Union & St. L. R. R. Co. vs. Beckwith, 129 1 Art. XIV. Amend.

U. S. 26.
Bartemeyer vs. Iowa, 18 Wall. 129; Weil vs. 10 Kemmish vs. Ball, 129 U. S. 217.
Calhoun, 25 Fed. Rep. 865 ; Mugler vs. Kansas, 11 Const., Amend. V.
123 U. S. 661 ; Beer Co. vs. Mass., 97 U. S. 25. 19 Powell vs. Penn., 127 U. S. 683.

* Munn vs. Illinois, 94 U. S. 113, 147 ; Budd vs. 18 Fertilizer Co. vs. Hyde Park, 97 U. S. 501. People, 117 N. Y. 1.

14 Mugler vs. Kansas, 123 U. S. 661. • Slaughter House Cases, 16 Wall. 36.

15 Munn vs. Illinois, 94 U. S. 113, 147 ; People 5 Fertilizer Co. vs. Hyde Park, 97 U. S. 501. vs. Budd, 117 N. Y. 1.

• Barbier vs. Connolly, 113 U. S. 27; Loon Hing 16 New Orleans Water Works Co. vs. St. Tamvs. Crowley, 113 U. S. 703.

many Water Works Co., 14 Fed. Rep. 194; 120 1o. Pac. R.R. Co. vs. Mackey, 127 U. S. 205. U. S. 64. 8 Mo. Pac. R.R. Co. vs. Humes, 115 U.S.512,523. 17 97 U. S. 501.




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No State shall make or enforce any law impose a charge for such service,' or charge which shall abridge the privileges or immuni- wharfage fees,' or force a railroad company ties of citizens of the United States ; nor shall to post in a conspicuous place on its staany State ..

deny to any person within tions its rates of fare,'' or protect itself its jurisdiction the equal protection of the against paupers, idlers, idiots, insane perlaws.

sons, and criminals; it has no power to reA State may not impose a tax on the ject in general persons "or goods" wishing sale of goods manufactured outside of the to enter it. No State may grant exclusive State but sold within the State, when it right to navigate the waters of the United imposes no tax on similar goods made States within its boundaries," nor pass, laws within the State'; or forbid the recapture regulating pilots," nor impose a tonnage of runaway slaves within its borders' or tax," nor impose a tax upon immigrants discriminate against any race or class of or goods" coming to the State, and so persons by directing that the hair of every raise a revenue under claim of protecting person imprisoned in the city jail should the State against an influx of foreign paube clipped within an inch of his head; pers ; nor fobid generally the importation nor against the products of another State of cattle or other animals on pretence that by providing that before any flesh of cattle, they introduced contagious diseases," nor sheep, or swine could be exposed for sale prescribe that a common carrier may not within the State for human food, the bring intoxicating liquors into the State animals from which such flesh was taken without a certificate." What the police must be inspected within the State before power is on this point is no more defined being slaughtered.

than on other subjects. Commerce is

intercourse and any restriction on ingress Congress shall have power to regulate com

or egress whether of goods or persons, merce with foreign nations and among the

unless such intercourse is a direct menace several States.

to the health and morals of the State, is a Although under proper exercise of police regulation of commerce.Measures, howpower a State may compel masters of

ever, which are properly within the police foreign vessels bringing passengers to the

regulation are not to be regarded as reguports of the State to file with the authorities

lations of commerce however much they a record of the place of birth, age, etc., of

may incidentally affect it. each passenger,' or direct the inspection

It must be borne in mind, too, that the at quarantine of incoming vessels and

use and consumption of property are not · Const., Amend. XIV.

commerce." This will serve to explain the ? Webber vs. Virginia, 103 U. S. 344 ; Welton vs. Missouri, 91 U. S. 275.

12 Leisy vs. Hardin, 135 U. S. 100. Prigg vs. Commonwealth, 16 Pet. 539.

13 Gibbons vs. Ogden, 9 Wheat. I. 4 How Ah Kow vs. Nunau, 5 Sawyer 552.

14 Cooley vs. Port Wardens, 12 Howard 299 ; 5 Minnesota vs. Barber, 136 U. S. 313.

Wilson vs. McNamee, 102 U. S. 572. 6 Art, I., Const., Sec, 8.

12 Wall. 204. ? New York vs. Miln, 11 Pet. 102.

16 Passenger Cases, 7 How. 283, 15 Wall. 280, 281. 8 Morgan S. S. Co. vs. Louis. B. of H., 118

17 Brown vs. Maryland, 12 Wheat. 419 ; Tiernan U. S. 455.

vs. Rinker, 102 U. S. 123, 15 Wall. 232. 9 Packet Co. vs. Keokuk, 95 U. S. 8o, affirmed 18 Railroad Co. vs. Husen, 95 U. S. 465. 100 U. S. 423.

19 Bowman vs. Chicago & N. W. R. R. Co., 125 10 Railroad Co. vs. Fuller, 17 Wall. 560.

U. S. 465. 11 Henderson vs. Mayor, 92 U. S. 259; Chy Lung 20 Henderson vs. Mayor, 92 U. S. 259. vs. Freeman, 92 U. S. 275.

25 Am. Law Rev. 168.



long line of cases which hold that while the The term “conflict ” implies that the State has no control over the importation State and Federal courts have come to of goods, it may regulate their use and opposite conclusions on the same or simiconsumption as soon as they become part lar state of facts. It implies that the of the general property in the State, which Federal courts have inquired into the acts is not the instant the property comes into of the State to determine whether those the State, but when the importer has acted acts actually are within the police power upon it so that the original package is no of the State or outside the police power longer in his hands.

and done merely under pretence of an

exercise of police regulation. If there is “ No State shall pass any law no inquiry there could be no conflict. It impairing the obligation of contracts." is of vital importance to the rights of the

The charter to maintain waterworks' or individual that such inquiry be made. For supply a city with gasis a contract not to that reason the doctrine announced by the be impaired by the State. The permission Supreme Court in Powell vs. Pennsylvaniao to manufacture or sell intoxicating liquors must be viewed with alarm. We cannot is not a contract which the State may not but regret the decision of the Slaughter impair; or to manufacture fertilizers, or House Cases, Powell vs. Pennsylvania," to conduct a lottery.' The dividing line Munn vs. Illinois," People vs. Budd," and between what the State may or may not do Fertilizer Co. vs. Hyde Park, in which the seems to be drawn at the cases which Supreme Court has receded from the high properly involve the health and morals of ground of Federal supremacy so strenuthe community. The courts hold that the ously asserted by Chief Justice Marshall State has no power to divest itself of police and his colleagues, and vindicated by fifty power and that a charter to carry on any years of forensic combat and four years' business involving the health and morals resort to arms.

While these cases seem of the community is not a contract, but a to have gone too far in allowing the State revocable license. “No State can bargain to trespass on the constitutional rights of away the public health or the public morals. the individual they at least made inquiry The people themselves cannot do it, much to determine whether the State acts were less their servants.

Government properly with the self-regulating power of is organized with a view to their preserva- the State and concluded that the Federal tion and cannot divest itself of the power authorities could not interfere, but in one to provide for them."" No law can bind case a doctrine was announced which bid future legislatures on questions of health fair to strip the individual of Federal proand morals.

tection and leave the State the final arbiter

of rights guaranteed to the individual by · Brown vs. Maryland, 12 Wheat. 419; Leisy vs. Hardin, 135 U. S. 100.

· Stone vs. Mississippi, 101 U. S. 814, 816. ? Art. I., Const., Sec. 10; Dart. Coll. vs. Wood- 8 Stone vs. Mississippi, 101 U. S. 814, 816; Boyd ward, 4 Wheat. 518.

vs. Alabama, 94 U. S. 645 ; Beer Co. vs. Massa3 N. 0. Water Works Co. vs. St. Tammany chusetts, 97 U. S. 25. Water Works Co., 14 Fed. Rep. 194.

9 127 U. S. 683. * N. 0. Gas. Co. vs. Louis. Light Co., 115 U. S.

10 16 Wall. 361, supra p. 6. 650.

127 U. S. 683, post p. 15. 5 Beer Co. vs. Mass., 97 U. S. 25 ; Mugler vs. 94 U. S. 113, 147, supra p. 6. Kansas, 123, U. S. 661.

117 N. Y. 1. 6 Fertilizer Co., vs. Hyde Park, 97 U. S. 501. 14 97 U. S. 501, supra p. 6.




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the Constitution against State encroach- fundamental law, the legislative determination ment.

of those questions is conclusive upon the The very purpose of giving to the Fed- courts(p. 685). The Slaughter House eral courts the power to supervise the cases, after inquiry, decided that the State action of the State on questions of indi- act was within police power and the Fed. vidual liberty was to guard the individual eral courts had no right to interfere, but against State encroachment upon his the doctrine of Powell vs. Pennsylvania guaranteed rights, and yet the Supreme shuts off even inquiry. What is to preCourt announced that it was for the State vent a State legislature from passing a bill legislature to determine when its acts were cunningly devised, so that on its face it properly within the police power. The does not infringe private rights ? Justice legislature of Pennsylvania, by act of May Field, dissenting, said (p. 695): “Un21, 1885, prohibited the manufacture of doubtedly this power of a State extends butter and cheese, within the State of to all regulations affecting not only the Pennsylvania, out of oleaginous substances health, but the good order, morals, and or from any compound thereof, other than safety of society ; but a law does not that produced from unadulterated milk, necessarily fall under the class of police and also prohibited the sale or offer of the regulations because it is passed under the same for sale as an article of food. The pretence of such regulation as in this case, real object of this legislation was not to by a false title, purporting to protect the protect the public health, but to create a health and prevent the adulteration of monopoly for the manufacturers of butter dairy products and fraud in the sale therefrom milk and cream.

The court said : of. It must have in its provisions some “ Whether the manufacture of oleomarga

relation to the end to be accomplished. rine or imitation butter of the kind de- If that which is forbidden is not injurious scribed in the statute, is, or may be, con- to the health or morals of the people, if it ducted in such a way, or with such skill does not disturb their peace or menace and secrecy as to baffle ordinary inspec- their safety, it derives no validity by calltion, or whether it involves such danger ing it a police or health law.” Before this to the public health as to require for the case the court had laid down the rule that protection of the people the entire sup- if the State act were within the police pression of the business, rather than its power, the Supreme Court had no right to regulation in such manner as to permit the inquire into the wisdom of the act,' and manufacture and sale of articles of that that every presumption is in favor of the class that do not contain noxious ingredi- validity of the State act'; but in no case ents, are questions of fact and of public was the doctrine announced that the Supolicy which belong to the legislative depart- preme Court had no right to inquire into ment to determine, and as it does not appear the State act unless, on the face of the upon the face of the statute or from any facts statute or from some fact of which the of which the courts must take judicial cogni- court must take judicial notice, the act was zance, that it infringes rights secured by the in contravention of private rights.

1 Powell vs. Pennsylvania, 127 U. S. 683.
? Patterson vs. Kentucky, 97 U. S. 504.
3 Powell

vs. Pennsylvania, 127 U. S. 684.

Fletcher vs. Peck, 6 Cranch 87, 128. Dartmouth Coll. vs. Woodward, 4 Wendel 518, 625 ; Livingston vs. Darlington, 101 U. S. 407.

Bartemeyer vs. Iowa' held that, under fundamental law, it is the duty of the court pretence of exercising police power the to so adjudge and thereby give effect to the State must not encroach upon any just Constitution." This doctrine is enforced rights of the citizen. In every case since by some State courts." The New York the foundation of the government where State decisions stand in shining contrast the Supreme Court has reversed the deci- to those of the United States on this subsions of the State court on a question of ject.' In People vs. Marx, a case involvpolice power, the State had acted under a ing the same questions as Powell vs. Pennclaim of police power.' I think the proper sylvania, the Court of Appeals repudiated rule was laid down by Mr. Justice Field in the United States' doctrine, and in all cases Loon Hing vs. Crowley · (p. 710): “And has it been declared that the courts were the rule is general with reference to the under a duty to ascertain the real intent of enactments of all legislative bodies that the a statute, no matter what it might purport courts cannot inquire into the motives of to be. Judge Earl said in matter of the legislators in passing them except as Jacobs: “When a health law is challenged they may be disclosed on the face of the in the courts as unconstitutional on the acts, or inferrible from their operation." ground that it arbitrarily interferes with The effect of the laws should be the test. personal liberty and private property withThe courts should take judicial notice of out due process of law, the courts must be whatever should be known generally within able to see that it has at least in fact some their jurisdiction, and, among other things, relation to the public health, that the pubthe reasonable effect of a statute. Before lic health is the end actually aimed at, and Powell vs. Pennsylvania the doctrine had that it is appropriate and adapted to that been announced by Mr. Justice Harlan,' end." In a late case, however" (supra p. which, had the court adhered to it, would 9), the Supreme Court has come out not have necessitated a return. The squarely against the doctrine in Powell vs. courts are not bound by mere forms, nor Pennsylvania. The court said (p. 319): are they to be misled by mere pretences. “The presumption that this statute was They are at liberty-indeed are under a enacted in good faith for the purpose exsolemn duty-to look at the substance of pressed in the title, namely, to protect the things, whenever they enter upon the in- health of the people of Minnesota, cannot quiry whether the legislation has transcend- control the final determination of the ed its authority. If, therefore, a statute question whether it is not repugnant to purporting to have been enacted to pro- the Constitution of the United States." It tect the public health, the public morals, is to be seen that there is no definite rule or the public safety, has no real or sub- which the court must follow in policestantial relation to those objects, or is a power questions. Each case as it arises palpable invasion of rights secured by the must be decided by itself; the Constitu118 Wall. 129, 138.

* 1 Green. Ev., sec. 6. ? Gibbons vs. Ogden, 9 Wheat. I; N. 0. Gas 5 Mugler vs. Kansas, 123 U. S. 661. Co. vs. Louis. Light Co., 115 U. S. 650 ; Hender- People vs. Marx, 99 N. Y. 377 ; People vs. son vs. Mayor, R. R. Co. vs. Husen, 95 U. S. 465; Gilson, 109 N. Y. 389. Passenger Cases, How. 283 ; Butchers' Union vs. : Matter Application of Jacobs, 98 N. Y. 98. C. C. Co., 111 U. S. 746 ; Leisy vs. Hardin, 135 People vs. Marx, 89 N. Y. 377. U. S. 100.

98 N. Y. 98. 3 Loon Hing vs. Crowley, 113 U. S. 703.

10 Minnesota vs. Barber, 136 U. S. 313.

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