1858. California, Ex parte Newman, 9 Cal. 502. A Sunday law held unconstitutional with strong expressions against legislative omnipotence, Judge Field dissenting. The first decision squarely enforcing civil liberty against legislative regulation. Overruled in 1861. Ex parte Andrews, 18 Cal. 678.

1858. Pennsylvania, Mott v. Pa. R. Co., 30 Pa. 9. Act discharging Railroad Company forever from certain state taxes in consideration of a payment, held unconstitutional as a surrender of delegated power. An entirely novel inherent limitation.

1862. Iowa, State v. County of Wapello, 13 Iowa 388. Act authorizing railroad-aid bonds held unconstitutional, citing no authority, but relying in part on retention of non-enumerated rights of people; followed in Michigan, People v. Salem, 20 Mich. 452, 1870, but contrary to weight of authority, which is supported by United States Supreme Court. Subsequently settled by express constitutional prohibitions.

1865. New York, Powers v. Shepard, 54 Barb. 524 (court of first instance). An act prescribing the amount that may be paid for substitutes in the army held unconstitutional; if valid, same decision of case by construction; sweeping statements as to limitation of legislative power to legal sphere; moral, religious, and economic interests being out of that sphere; such legislation inconsistent with constitutional republican government. The first decision maintaining the freedom of contract against legislative regulation; no authority cited.

The period from 1850 to 1870 is thus marked by the first decisions opposing general constitutional limitations to the legislative regulation of civil liberty, but of the two decisions one was three years later overruled, and the other came from a single judge and was rather inconclusive. The decisions against the surrender of the taxing power and against its unlawful exercise in aiding private enterprise are, on the other hand, significant as recognizing limitations not operating directly in favor of an individual right of liberty or property, but inherent in the nature and purpose of governmental functions and particularly of the taxing power.

Surveying the period of approximately one hundred years from the establishment of independent government, we find a thin but continuous stream of dicta in favor of the judicial power to control the exercise of a plain abuse of legislative power, the clauses relied upon being: Separation of powers; law of the land and due process; retention of non-enumerated rights by the people and the nondelegation of power to the legislature; and as additional principles not specifically expressed the inherent limitations of republican government and the incapacity further to delegate delegated power. But not

until 1857 do we get actual decisions declaring laws unconstitutional except for violating vested rights or the separation of powers, and until 1870 decisions involving other principles are so isolated and so contrary to the general trend as to be almost negligible.

From 1870 on we have to take account of the Fourteenth Amendment, but apart from that courts begin to declare with greater frequency and confidence legislation to be unconstitutional because it appears unreasonable either in degree or in kind. In the seventies this new development is illustrated by three decisions from Illinois: the first, 1873 (Toledo v. Jacksonville, 67 Ill. 37), holding certain safeguards required of railroads unreasonable;5 the second, 1875 (O. & M. R. Co. v. Lackey, 78 Ill. 55), holding an act requiring railroad companies to take care of and bear the expense of burial of the bodies of persons dying on their cars arbitrary and void; and 1878 (Gridley v. Bloomington, 88 Ill. 554), holding that there is no constitutional power to require owners to clean sidewalks-upon a principle not theretofore intimated that liabilities may not be imposed without some intelligible justification.

The Fourteenth Amendment gave an express sanction, hitherto lacking, to the principle of equality; on the other hand, the due-process clause merely added the federal guaranty to a principle already familiar under state constitutions; the privileges and immunities of United States citizenship were so narrowly construed in the Slaughter House cases that they have become a negligible quantity.

The decision in the Slaughter House cases in 1872, sustaining the grant of a monopoly charter (16 Wall. 36), in a sense marks a new departure: the conservative construction of the Fourteenth Amendment looks backward; but the emphatic dissent of four justices out of nine foreshadows an enlarged view of constitutional guaranties. This view was presented by Justice Field, while the prevailing opinion was written by Justice Miller, who subsequently wrote the prevailing opinion in Loan Association v. Topeka.

The decision in Loan Association v. Topeka in 1875 (20 Wall. 653) recognized with regard to municipal bonds issued in favor of a manufacturing company the principle, asserted first in Iowa with reference to railroad-aid bonds, that the taxing power may not be exercised for private benefit. In protecting private property against the

5 A case of an ordinance, but the court said that it would treat the question as if the measure had direct legislative sanction.

most insidious source of attack-the abuse of taxation-this decision, based, not on the Fourteenth Amendment, but purely on inherent limitations, gave to the individualistic conception of government a strong support and evinced a disposition to scrutinize loose governmental practices more closely than had been done in the past.

In 1877 came the Granger cases (Munn v. Illinois, 94 U. S. 113). It is well to observe that the leading opinion was not written in a railroad case, but with reference to the state regulation of grain-elevator charges, the elevator business, unlike the railroad business, never having sought public privileges on the plea that it was public in character. It was nevertheless declared to be affected with a public interest on the basis of the obscure public or common calling of the common law, and the reliance upon certain monopolistic features which distinguished the business as carried on in Chicago was tacitly dropped in a later case coming from North Dakota (Brass v. North Dakota, 153 U. S. 391). The business affected with a public interest was declared to be subject to regulation in the economic interest of the public -a phase of state power which had long lain dormant.

In estimating the importance of the Granger decisions the following points should be borne in mind:

First, the decision did not overturn previously established judicial doctrines. This appears from the fact that Justice Field, who, in his dissenting opinion contended for a general limitation upon legislative power upon the basis of the due-process clause, was not in a position to cite a single authority in favor of his view. He himself had dissented from the early California decision denying on equally general grounds the validity of Sunday legislation.

Secondly, the practical effect of the decision was confined to railroads and public utilities, which almost from the very beginning by universal consent had been treated as subject to an extraordinary legislative control.

Thirdly, the coming judicial view of a constitutional right of economic liberty was foreshadowed in the significant observation which came from Chief Justice Waite to the effect that the constitution does not confer power upon the whole people to control rights which are purely and exclusively private.

From the middle of the eighties the main interest in the problem of constitutional liberty shifts to labor legislation.

Before that time there had been too little of that legislation, and

the enforcement of what there was had been too lax to raise serious questions.

In 1874 the governor of Massachusetts, in recommending a tenhour law for males as well as females, adverted to no constitutional question; and in 1876 the Supreme Court of Massachusetts, in sustaining the law which had been enacted for women only, was obviously a good deal puzzled to understand the grounds upon which the measure was contested (Com. v. Hamilton Mfg. Co., 120 Mass. 383).

The New York tenement labor decision of 1885 (Ex parte Jacobs, 98 N. Y. 98) was the first to take a decided stand against the power of the state to control the conditions of labor; the relation between employer and employee, however, was not involved or discussed.

The new doctrine of freedom of contract between capital and labor was inaugurated in 1886 by two decisions (Godcharles v. Wigeman, 113 P. St. 431; Millet v. People, 117 Ill. 294).

Since then probably about half a hundred cases have come before the courts involving legislation dealing with hours of labor, methods of wage payment, and the protection of union labor. The decisions have greatly varied, but the trend adverse to the validity of legislative control of the labor contract has been strong enough to make a profound impression upon public opinion. The decision of the Supreme Court in the New York Bakers' case in 1905 (Lochner v. New York, 198 U. S. 45) adopted the extreme view on that side; but the case of the Oregon ten-hour law for women in 1908 (Muller v. Oregon, 208 U. S. 412) indicated the setting in of the receding tide.

The New York decision of 1911 against the validity of the new type of workmen's compensation (Ives v. South Buffalo R. Co., 201 N. Y. 271), while involving a different problem of a more technically juristic character, again asserted the judicial authority to enforce inherent and general limitations. The doctrine there pronounced has, even in the brief period which has elapsed since the decision was written, been shown to have very much less vitality than the doctrine of freedom of contract. It is true that the latter doctrine, too, as applied to capital and labor, strongly supported as it was for about twenty years by professional opinion, will, in the light of a longer history, probably appear as a merely transitory phase of legal and judicial thought. But to measure correctly the strength of the doctrine that the power to regulate economic freedom is constitutionally limited, we

must take into account other decisions invalidating legislation relating to business or property which is less affected by the present trend toward social reform. Acts have been held unconstitutional creating mechanics' liens in favor of subcontractors (Spry Lumber Co. v. Trust Co., 77 Mich. 199, 1889), prohibiting gift sales or the issue of trading stamps (People v. Gillson, 109 N. Y. 389, 1888), making ticket scalping illegal (People v. Caldwell, 168 N. Y. 671, 1901), forbidding the sale of merchandise in bulk (Block v. Schwartz, 27 Utah 387, 1904), prohibiting the manufacture of olemargarine (People v. Marx, 99 N. Y. 377, 1885), requiring a license as a condition for permission to engage in the business of a horseshoer (Re 'Ambrey, 36 Wash. 308, 1904), plumber (State v. Smith, 42 Wash. 237, 1906), undertaker (People v. Ringe, 197 N. Y. 143, 1910), or dancing master (People v. Wilber, 198 N. Y. 1, 1910), and attempting to restrict outdoor advertising (Com. v. Boston Advertising Co., 1h8 Mass. 348, 1905).

In none of these cases was any specific clause of the constitution applicable, but the doubts which the courts felt were regarding the applicability, and not regarding the existence of general and inherent limitations.

From the point of view of constitutional history the decisions in the labor cases will retain their significance as the most conspicuous expressions of the theory-at the present accepted in no other system, and repudiated particularly in the other English-speaking jurisdictions and in foreign democracies—that it is not only on the ground of specific clauses, or on the ground of vested rights, or on the ground of a violation of the separation of powers, but upon the basis of a general right of liberty, of a certain degree of freedom from legislative regulation and control, that statutes can be declared unconstitutional..

We now associate the exercise of this judicial power with the due-process clause. The Supreme Court has refused to define the meaning of due process, but its underlying philosophical concept is not likely to be disputed: it stands for the idea that it is not the mere enactment of a statute in constitutional form that produces law, but the conformity of that enactment to those essentials of order and justice which in our minds are indispensable to the nature of law. Viewed in the light of history, these essentials are few, and the legislature is not likely to violate them except through inadvertence or in the heat of political passion. There consequently appeared to the original