The Police Power: Public Policy and Constitutional Rights

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Callaghan, 1904 - 819 pages
 

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Contents

safety order and morals 11 Care and control of dependents 12 Economic interests
7
Nonmaterial or ideal interests 14 Political interests
9
Relative attitude of the government toward the three classes of interests
11
Relation between private right and public welfare 17 The constitution as judicially enforceable
12
Specific limitations upon police legislation
13
General limitations
14
Due process of
15
Justice and judicial policy
16
B THE POLICE POWER AS A POWER OF RESTRAINT AND COMPULSION 88 2226 22 Corporate and moral capacity of the state
17
Fower over licenses and privileges
19
The police power and other restraining powers
20
Police legislation and the criminal
21
Corporate powers of state and individual rights
23
Restraint as distinguished from regulation and prohibition
24
Positive standards and limitations 2934
29
Imposed standards as compared with customary standards
30
Regulations applied to innocuous conditions
31
Standards of articles of consumption
32
Regulation by municipal authority
33
Choice between measures of equal efficiency
34
Regulations to insure compliance with the law 3557
35
In general
36
License or occupation
37
License as a police measure
38
High license as a method of restriction
39
Bonds and deposits Notices marks and signs 41 Purpose and application Reports and Registration 8 4246
40
Registration and equality
41
Inspection 47
42
Secrecy of letters
43
Notice of a prejudicial character 4952
44
Goods marked convict made 51 Goods marked tenement made
45
5 Resulting injury
46
Immunity from prosecution
47
Obligation to report subject to claim of privilege
48
Compulsory association 8 56
50
57 Principles applicable
51
5862
52
lotteries speculation liquor
54
Trading stamp business 61 Ticket brokerage
55
Oleomargarine legislation
56
The principle of reasonableness
57
Qualification of character SS 651653
59
CHAPTER III
62
Commerce and navigation
63
Indians and territories
64
Control over state police power 6885
65
The commerce clawse 8 7085
66
Immigration and quarantine 72 Navigation and navigable waters
67
Railroads and common carriers
68
Peddlers auctioneers brokers and drummers
70
Inspection laws
71
76 Liquor
76
Foodstuffs and live stock
77
Nature of distinctions
78
Business which is commerce and business which is not commerce
79
Local and national aspect of commerce
80
Conflict between state policy and freedom of commerce
81
Summary of principles
82
THE PUBLIC WELFARE FIRST THE PRIMARY SOCIAL INTERESTS SAFETY ORDER AND MORALS CHAPTER IV
87
Suppression of riot 89 Security of the peace
89
Concealed weapons
90
Military organisations
91
Bodies of armed men
93
Restraints upon business and upon particular dealings 94 Criminal character
94
Reputation
95
Known thieves
96
Vagrancy vagabondage and criminal idleness
97
Vagrancy not a status of dependence
98
Vagrancy a criminal offense
99
Vagrancy as a means of dealing with suspects 101 Control over immigration
100
Control over criminals after conviction 103 Measures during imprisonment
101
Conditional pardon 8 105 Indeterminate sentence laws and parole
103
Question of delegation of judicial powers
104
Parole conditions a form of police supervision
105
Suspension of sentence and probation
108
Security of good behavior
109
Disabilities of exconvicts
110
Safety legislation 8 113121
113
Protection against overflow and inundation 115 Mines 116 Railroads 117 Ships and navigation 118 Buildings and structures 119 Dangerous mac...
114
Marriage
116
Burials and cemeteries 126 Dead bodies
117
Land structures and buildings
118
Buildings and other establishments 129 Foodstuffs
119
Other articles of consumption
120
Employment 132 Qualification for the exercise of callings affecting health
121
710 Nonresidence relevant for police purposes
122
Practice of medicine
123
Limitations of the federal constitution upon the police power for the protec tion of safety and health 8 134139
124
Safety legislation affecting commerce
125
Federal power not exclusive of protective state legislation
126
Exercise of state police power not conclusive 138 Discriminative legislation under color of sanitary pover
127
Louisiana v Texas
129
Local powers for the protection of safety and health 88 140142
130
Principle of construction
131
Judicial control as to reasonableness
132
Limitations of health and safety powers with reference to conditions and measures 88 143155
133
Inconclusiveness of legislative judgment
134
Judicial notice of established scientific laws and general conditions 146 Sanitary purpose need not be expressed
135
147 Difference of objects as justifying different measures 148 Measure must tend to remove danger
136
Measure need not be the most adequate conceivable
137
CHAPTER VI
144
Protection of streets from injury
150
Special uses of abutters
156
Unsightliness 180183
163
Unsightly advertisements
166
Flag legislation
167
Sunday rest 184186
168
Protection of customary quiet
169
Prohibition of business
170
CHAPTER V
172
Justification of exercise of police power 730
173
Aggravating circumstances
174
Games of skill and contests 192195
176
Billiard tables and bowling alleys 194 Horse races
177
Betting
179
Limiting the height of buildings adjacent to public parks
180
Authorized lotteries 197 Definition of a lottery 198 Gifts to attract custom
181
Speculation 199203
183
Stock and produce speculation
184
201 Legislation restraining dealings in futures and options
186
Places facilitating speculation
188
Foreign legislation regarding exchanges
190
CHAPTER VIII
192
Principal points of legislation and policy
194
Regulation of the liquor traffic 206212
195
Requirement of a license to be issued as a matter of judicial dis
197
Scope of prohibition
203
Right to sell subject to statutory disqualifications and conditions
207
The same under the system of prohibition
210
Freedom of commerce
216
Tests of obscenity
221
science social reform
223
Art and literature
224
Illicit sexual intercourse 8 240246
225
Prostitution Scope and ground of state control
226
Systems of legislation
227
Measures against prostitutes
228
Houses of prostitution
231
Practices in aid of prostitution
232
Brutality and inhumanity 88 247249
233
Cruelty to animals Vivisection
235
Public amusements 250251
237
Control over theatres Stage censorship
239
CHAPTER X
242
Provisions held defective
243
Constitutional requirements
244
Right to discharge 256 Control of private asylums
245
Minors 257267
246
Constitutionality
247
Parental right of custody and commitment to reform institutions
248
Dependence or delinquency
249
Notice to parent
250
Discharge from institution
251
Compulsory education 265 Truant schools
252
Power over private education
253
Power over graduate instruction Pauperism and charity 8 268271
254
The state and private charity
255
Compulsory support by relatives
256
ECONOMIC INTERESTS PROTECTION AGAINST FRAUD AND OPPRESSION PUBLIC CONVENIENCE AND ADVANTAGE CHAPTER XI
260
Determination and verification of standards
261
Compelling certain modes of dealing
262
Inspection laws 276278
263
Restrictions under state constitutions
265
Substitutes imitations adulterations 279286
266
Commodities to which legislation applies Gold and silver 282 Oleomargarine legislation
268
Absolute prohibition
269
Prohibition of imitation
270
Restrictive measures against paupers
271
Ordinances Forms of business liable to abuse 287295
272
Peddlers
273
Scope of legislation
274
Auctioneers 291 Ticket brokerage
275
Bankrupt and fire sales
276
Gift sales and trade stamps
277
Peddling etc and the freedom of commerce
279
Nondiscriminative license fees
280
Fidelity of agents depositaries and trustees 8296297
281
PROTECTION OF DEBTORS 299 Protection against oppression in general Collection of debts 300301
285
Annoying practices in the collection of debts Usury laws 302304
286
History of legislation
288
American legislation
289
Question of constitutionality
290
Bankruptcy legislation 9 305307
291
Prospective state insolvency laws
292
Retrospective bankruptcy legislation Legislation against contracts payable in gold 308 309
293
Constitutionality
294
CHAPTER XIII
295
Corporations banking insurance
296
Warehousemen and commission merchants
297
Public interest in prevention of fraud Bottling Acts
298
Legislation for adult laborers
300
Hours of labor
301
Question of constitutionality
302
Rate of wages
318
weekly payment and store order acts
319
Judicial decisions
320
Constitutional principle
321
Imposed conditions and penalties
322
Penalty for leaving without notice
323
Fines for imperfect work
324
Coercion to influence or prevent the exercise of political rights
325
Coercion against membership in trade unions
326
Blacklisting and clearance cards
327
Exclusive selling arrangements Rebates
339
Agreements to fix prices limit supplies or divide business
342
Covenants by vendor of business
343
Consolidation of different concerns
349
Trusts
350
Consolidation of corporations
351
Monopolistic corporation
352
When is the point of monopoly reached I
354
Constitutionality of antitrust legislation
355
Discrimination between combinations for different purposes CHAPTER XVI
356
The right to incorporate as a license
357
Special charters and general incorporation laws 360 Restrictions on corporate capacity
359
The charter as a contract and reservation of legislative power
361
Modifications of the doctrine of the Dartmouth College case
362
Present effect of Dartmouth College decision
363
Common law The rule against perpetuities
367
Mortmain legislation in England
368
Compulsory incorporation
369
CHAPTER XVII
370
Devices for tying up property Civil
371
Long leases
378
CHAPTER XVIII
380
Statement of doctrine 373 Kinds of business and forms of control
381
Regulation of charges 88 374385
383
English legislation 375 American legislation
384
Attitude of the courts
385
Justification by legal or virtual monopoly
386
Constitutionality in other cases
388
Earlier doctrine that reasonableness legislative question 380 Regulation not confiscation
390
Rates fixed by commission and due process
391
Rates fixed by legislature
393
Jurisdiction of federal courts 384 Difficulties of judicial control
394
385 Judicial regulation
396
Requirement of equal service 88 386394
397
To what kind of business applicable 387 Equal and sufficient service
398
Grounds of requirement
399
Objects of discrimination
401
390 Legislation against discrimination
402
What constitutes unjust discrimination
403
Circumstances justifying discrimination
404
Discrimination allowed or prescribed by
406
Discrimination forbidden though circumstances dissimilar Requirements of particular arrangements in the interest of public con venience 395398
407
Cab and other privileges granted by railroad companies
413
Legislative requirements
414
Public convenience not ordinarily a ground of police control
416
Requirements and reductions in the interest of financial security 399401
417
Grounds of control
419
Restriction of right to carry on business
420
QUALIFIED PROPERTY 402 In general Navigable waters and riparian rights 403409
422
Land covered by water
423
Special grants Commonwealth v Alger
424
Establishment of harbor lines Effect on existing wharves
425
Obstructions under act of Sept 19 1890
426
Easements of the riparian owners
427
Riparian land
431
Mill dam privileges 410413
432
Theory of Massachusetts courts 412 Taxing for public
433
American legislation providing insurance
434
Insurance in connection with registration of titles
435
Other legislation authorizing the flooding of land Natural water as qualified property 414417
436
Doctrine of prior appropriation
437
Subordination of right to beneficial purpose
438
Constitutional recognition of doctrine
439
Game and fish 418421
442
Common law and legislation 419 Constitutionality
443
Game and fish laws and freedom of commerce
445
Property in dogs
446
Waste of natural wealth 422423
447
Forest preservation Restrictions on property in the interest of other owners 88 424427
449
Lasements of support 425 Natural waters
450
Malicious erections and private nuisances
452
Private roads
453
CHAPTER XX
456
Compulsory measures against improvidence 430437
457
Spendthrifts
458
Support of church out of public funds
460
Religious disqualifications
461
Recognition of religion
462
Teachers pension funds 437 Compulsory insurance of workmen
463
Compulsory industry and improvement 8438439
464
Constitutional aspect of such legislation
465
Compulsory joint improvements 88 440444
467
Constitutional justification
468
Party walls
470
Division fences
471
CLASSIFICATION AND DISCRIMINATION
474
FUNDAMENTAL RIGHTS UNDER THE POLICE POWER FIRST LIBERTY CHAPTER XXI
475
Liberty of the body 88 446452
477
Compulsory service and labor contracts
478
Unreasonable contracts to serve
479
Contract labor laws
480
American legislation
481
Specific enforcement and criminal punishment
482
Liberty of private conduct 453457
483
Private consumption of liquor
484
Question of constitutional right
485
Principle of statutory construction Liquor in clubs
486
Freedom of social intercourse
488
CHAPTER XXII
489
The Bible in public schools
492
Protective and restrictive legislation
493
Blasphemy
494
Regulative legislation
495
Limits of religious freedom
497
Practices and doctrines in conflict with public safety and order 469 Conflict between civic and religious duties
499
Sunday laws
501
Freedom of speech and press 471479
503
The coi itutional guaranty and censorship 472 Freedom of speech and press and the law of libel
506
Foxs Libel
507
Prosecutions for seditious libel in America
508
Attacks upon government in general Anarchism
509
Incitement to crime and violence
510
Anarchists cases
511
Legislation
512
Freedom of culture
513
Freedom of assembly and association 480484
514
Right of assembly and use of public places 481 History of the right of association
516
Constitutional power in America
518
Political parties and primary election laws
519
CHAPTER XXIII
523
Emigration and expatriation
524
Right to come into a state
526
Emigration from a state
527
Movement from and to United States territories
528
Migration and settlement within a state
529
Freedom of pursuit of livelihood 492497
531
Classes of business requiring license
532
Legitimate grounds of restraint and protection from competition
533
Certification in place of license 496 Delegation of legislative power
535
Contract essential to property
537
Physical invasion
543
Illustrations of regulation not amounting to taking
549
Carcasses garbage
556
Status of noxious establishments 530 Exercise of municipal power
561
Judicial safeguards 532 Status of offensive industries under foreign laws
562
Massachusetts
563
Destruction to avoid calamity 534537
565
SAFETY AND HEALTH
567
Prohibition against the use of property
568
Mugler v Kansas 541 Powell v Pennsylvania
569
Regulation involving partial prohibition 543 Prohibition operating upon established business or practice of pro fession
571
The test oath cases 545 Hawker v New York
573
Criticism of Hawker v New York
574
Prohibition of oleomargarine business
575
B EXPENSIVE ALTERATIONS AND IMPROVEMENTS 88 548549
576
Limit of constitutional power C REDUCTION OF CHARGES 550554
577
Basis of calculation the whole business within the state 522 Value of particular service
578
Value of property
579
Fair return
581
IMPAIRMENT OF THE OBLIGATION OF CONTRACTS 88 555560
582
Impairment forbidden only if in interest of party obligated
583
Legislation for the relief of debtors
584
Constitutional aspect of abolition
586
Useful but offensive undertakings carried on under license
588
Dartmouth College doctrine
595
Suggestions regarding rights claimed under affirmative sanction 578582
602
Seignorial rights
607
Entails
613
Eleemosyrary trusts and the Dartmouth College doctrine
620
FUNDAMENTAL RIGHTS
626
Equality and the equal protection of the laws
633
Where land not the source of the danger
641
Ships liability for fault of pilot
647
Substitution of ministerial function
652
Fire started by sparks from locomotives
653
Penal liability and fault wrongful intent dispensed with
661
Principle of equality
664
License a ministerial or a judicial
667
Discrimination in tests of fitness
673
Judicial Control 654655 654 Judicial character of discretion
678
Federal protection against arbitrary discretion
679
B MONOPOLIES 656681
681
American constitutional provisions
682
Monopolies of necessity franchises 658662
683
Right of condemnation of property 660 Temporarily exclusive right under special legislation 661 Canals and river improvements
684
Bank notes
685
Equity of exclusive right 664 Federal legislation
686
Monopoly character
687
Monopolies against common right 8 666673
688
Municipal monopolies
689
Private monopolies against common right Ferries
690
Monopoly as a means of police control Slaughter house cases
692
License lease or contract
693
Power over monopolised business 8 672 Restriction of numbers
694
Resulting privileges
695
Revocability of monopolies and grant of competing rights 88 674681
697
Unequivocal grant of exclusive character required
698
Principle of strict construction justified
699
Rival public undertakings 678 Question of power to make exclusiveness a matter of right
700
Grant of competing right as impairing the obligation of contracts
701
Louisiana Slaughter House and Gas Company cases
702
Perpetual monopolies and monopolies limited in time
703
Discrimination in location of noxious establishments
712
Miscegenation
718
Employment of women in the liquor business
724
Nonresident U S citizens
730
Irregularities due to special charters
733
Foreign railroad companies
739
Sanitary legislation
746
Principles deducible from decisions
753
Growth of legislation 112 Principal subjects of legislation
810
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Page 575 - And, in order to ascertain that value, 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 prescribed by statute, and the sum required to meet operating expenses, are all matters for consideration, and are to be given such weight as may be just and right in each case.
Page 378 - Property does become clothed with a public interest when used in a manner to make it of public consequence and affect the community at large. When, therefore, 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.
Page 724 - All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.
Page 434 - That whenever 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 recognized and acknowledged by the local customs, laws, and the decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same...
Page 355 - We leave out of our consideration those territories which at the end of the fourteenth and the beginning of the fifteenth century...
Page 520 - ... government has freely received emigrants from all nations, and invested them with the rights of citizenship; and whereas it is claimed that such American citizens, with their descendants, are subjects of foreign states, owing allegiance to the governments thereof; and whereas it is necessary to the maintenance of public peace that this claim of foreign allegiance should be promptly and finally disavowed: Therefore any declaration, instruction, opinion, order, or decision of any officer of the...
Page 434 - All patents granted, or preemption 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 recognized by the preceding section.
Page 371 - ... the rule against perpetuities. "The rule against perpetuities is thus stated : 'No interest subject to a condition precedent is good unless the condition must be fulfilled, if at all, within twenty-one years after some life in being at the creation of the interest.
Page 487 - No person shall be deprived of life, liberty or property without due process of law. 3. The free exercise and enjoyment of religious profession and worship, without discrimination, shall forever be guaranteed ; and no person shall be denied any civil or political right, privilege or capacity on account of his religious opinions...
Page 216 - ... transported into any State or Territory, or remaining therein for use, consumption, sale or storage therein, 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 animals or birds had been produced in such State or Territory, and shall not be exempt therefrom by reason of being introduced therein in original packages or...

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