The Police Power, Public Policy and Constitutional Rights

Ernst Freund

Callaghan, 1904 - 819 pages

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Lawton v Steele	lviii

Property erected or acquired in violation of	lxxix

NATURE AND GENERAL SCOPE OF THE POLICE POWER	xciii

CHAPTER I	xciv

Division of governmental powers	1

The term police 3 The term police power A THE POLICE POWER AS A MEANS OF FURTHERING THE PUBLIC WELFARE 421 4 Division of...	3

Supply of ways and means 7 Maintenance of right and the redress of wrong Civil and crim inal justice	4

Public welfare or internal public policy	5

Regulation of charges 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

safety order and morals 11 Care and control of dependents	7

Economic interests	8

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 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

23 Corporate powers of state and individual rights	23

Restraint as distinguished from regulation and prohibition	24

Positive standards and limitations 2934	29

General principle	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

Licenses 3639	36

License or occupation	37

License as a police measure	38

High license as a method of restriction	39

Bonds and deposits	40

Purpose and application	41

Reports and Registration 4246	42

As applied to business	43

Statistical information	44

Passports and registration of strangers	45

Registration and equality	46

Inspection 47	47

Secrecy of letters	48

Notice of a prejudicial character 4952	49

Goods marked convict made	50

Goods marked tenement made	51

Resulting injury	52

Prohibition 5862	53

lotteries speculation liquor	54

Trading stamp business 61 Ticket brokerage	55

Oleomargarine legislation The principle of reasonableness 63 Enforcement by courts CHAPTER III	62

Commerce and navigation	63

Indians and territories	64

Control over state police power 6885	68

The commerce clause 7085	70

Immigration and quarantine	71

Navigation and navigable waters	72

Railroads and common carriers	73

Peddlers auctioneers brokers and drummers	74

Inspection laws	75

Liquor	76

Foodstuffs and live stock	77

Principles underlying the decisions of the Supreme Court 7885	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	85

THE PRIMARY SOCIAL INTERESTS SAFETY ORDER AND MORALS CHAPTER IV	86

Arrest	88

Suppression of riot 89 Security of the peace	89

Concealed weapons	90

Military organisations	91

Bodies of armed	93

Restraints upon business and upon particular dealings	94

Criminal character 95 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 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	106

Security of good behavior 110 Disabilities of exconvicts CHAPTER V	109

Principal subjects of legislation	110

Safety legislation 113121	113

Dangerous machinery inflammable materials explosives poisons	114

Marriage	116

Burials and cemeteries	117

Dead bodies 127 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

Nonresidence relevant for police purposes 711 Practice of medicine	122

Practice of medicine	123

Limitations of the federal constitution upon the police power for the protec tion of safety and health 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 140142	130

Principle of construction	131

Judicial control as to reasonableness	132

Limitations of health and safety powers with reference to conditions and measures 143155	133

Inconclusiveness of legislative judgment	134

Judicial notice of established scientific laws and general conditions 146 Sanitary purpose need not be expressed	135

Difference of objects as justifying different measures 148 Measure must tend to remove danger	136

Measure need not be the most adequate conceivable	137

Measure proportionate to danger	138

Interference with established economic or social conditions 152154 The practice of medicine and freedom of science	139

Measures restraining a class for its own protection	141

CHAPTER VI	144

Reasonableness	145

Order and freedom of commerce Power over encroachments on streets 160164	146

Control of public	147

Customary encroachments 163 Power to prohibit and regulate	148

Protection of streets from injury The common right to use public places 165170	150

Power over use of street not absolute	151

Extent of common	152

Unsightly advertisements	166

Flag legislation	167

Obstruction and disorderly conduct	169

Use of rivers	170

Right to use parks public buildings	171

Special uses of abutters	172

Use for profit	173

Use for parades processions public addresses and meetings	174

Subject to police regulation	175

Offensiveness 176179	176

Municipal power over offensive establishments	177

Reasonableness of standards	178

179 Assignment to specified districts	179

Legislation Sunday rest 184186	184

Protection of customary quiet	185

Prohibition of business CHAPTER VII	186

In general GAMBLING	187

Justification of exercise of police power 730	189

Legislation Games of chance 190191	190

Aggravating circumstances	191

Games of skill and contests 192195	192

Billiard tables and bowling alleys	193

Horse races	194

196 Betting Lotteries 196198	196

Definition of a lottery	197

198 Gifts to attract custom	198

Speculation 199203	199

Stock and produce speculation	200

201 Legislation restraining dealings in futures and options	201

Places facilitating speculation	202

Foreign legislation regarding exchanges	203

CHAPTER VIII	204

205 Principal points of legislation and policy	205

Regulation of the liquor traffic 206212	206

207 Right to sell subject to statutory disqualifications and conditions	207

Sale of wine for sacramental purposes	212

CHAPTER IX	220

Tests of obscenity	221

science social reform	223

Art and literature	224

Illicit sexual intercourse 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 247249	233

Cruelty to animals Vivisection	235

Public amusements 250251 250 Ground and scope of police control	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

In general Minors 257267	246

Constitutionality	259

260 Parental right of custody and commitment to reform institutions	260

261 Dependence or delinquency	261

Notice to parent	262

263 Discharge from institution	263

Compulsory education	264

Truant schools	265

Power over private education	266

Power over	267

graduate instruction Pauperism and charity 268271	268

The state and private charity	269

270 Compulsory support by relatives	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 296297	281

CHAPTER XII	285

Annoying practices in the collection of debts	286

Usury laws 302304	288

American legislation	289

Question of constitutionality	290

Bankruptcy legislation 305307	291

Prospective state insolvency laws	292

Retrospective bankruptcy legislation Legislation against contracts payable in gold 308 309	293

Constitutionality	294

In general 311 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

Employment brokerage	328

Federal legislation for the protection of labor	329

CHAPTER XIV	330

Earlier American cases and statutes	331

Analysis of provisions	333

Federal antitrust legislation	334

Division of control between states and United States 343 Restraint of trade at common	336

Associations with restrictive bylaws 345 Agreements not to deal with persons acting contrary to agreement	338

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	344

Trusts	345

Consolidation of corporations	351

Monopolistic corporation	352

When is the point of monopoly reached?	353

Interpretation of antitrust acts	354

Constitutionality of antitrust legislation	355

Discrimination between combinations for different purposes CHAPTER XVI	356

The right to incorporate as a license 359 Special charters and general incorporation laws	357

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	365

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

Jurisdiction of federal courts 384 Difficulties of judicial control	394

Judicial regulation	396

Requirement of equal service 386394	397

To what kind of business applicable 387 Equal and sufficient service	398

Grounds of requirement	399

Objects of discrimination	401

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

CHAPTER XIX	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 413 Other legislation authorizing the flooding of land 412 Taxing for public	433

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

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 424427	449

Easements of support	450

Natural waters	451

Malicious erections and private nuisances	452

Private roads	455

CHAPTER XX	456

Compulsory measures against improvidence 430437	457

Spendthrifts	458

Compulsory insurance	459

Its constitutional aspect 434 American legislation providing insurance	460

Religious disqualifications	461

Insurance in connection with registration of titles	462

Teachers pension funds 437 Compulsory insurance of workmen	463

Compulsory industry and improvement 438439	464

Constitutional aspect of such legislation	465

Compulsory joint improvements 440444	467

Constitutional justification	468

Party walls	470

Division fences	471

FUNDAMENTAL RIGHTS UNDER THE POLICE POWER	473

LIBERTY CHAPTER XXI	474

Different aspects of liberty Note The right to life	475

Liberty of the body 446452	477

Compulsory service and labor contracts	478

Unreasonable contracts to serve	479

450 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

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 484 Conclusions reached Note Social control	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

Principle of equality	536

Freedom of contract 498503	537

Legislation and United States Supreme Court 502 Decisions of state courts	538

Formulation of principle	539

PROPERTY VESTED RIGHTS UNDER THE POLICE POWER CHAPTER XXIV	540

American constitutions and Fourteenth Amendment	541

Injury 507510	542

Physical invasion 509 Doctrine of consequential damages	543

Modifications of doctrine	544

Taking to ward off public injury 511517	546

Appropriation generally outside of the police power 513 Prejudicial regulation without compensation	547

Justification of such regulation 515 Regulation of property rights	548

Illustrations of regulation not amounting to taking	549

Cases of destruction or abrogation of property rights	550

Insubstantial invasion or destruction 518519	551

Property taken of slight value	553

Nuisances 520528	555

Property imminently dangerous 521 Summary abatement 522 Carcasses garbage	556

Infected cattle 525 Property unlawfully used and forfeiture	557

Judicial safeguards	558

Status of noxious establishments 530 Exercise of municipal power	561

Judicial safeguards 532	562

534 Status of offensive industries under foreign laws Massachusetts law Destruction to avoid calamity 534537	563

Statutory compensation 536 Destruction for military purposes	565

CHAPTER XXV	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 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 555560	582

Impairment forbidden only if in interest of party obligated	583

Legislation for the relief of debtors	584

Retrospective legal tender laws	585

Contracts to pay in specific kind of money	586

Scaling laws	587

In general CHAPTER XXVI	588

Statement of principle 563 Lotteries	589

Liquor licenses	591

Useful but offensive undertakings carried on under license 565 Cemeteries markets	592

Exemptions 566568	593

From taxation	594

Corporate powers and privileges 569572	595

Question whether contract or not 571 Illinois water rate cases	596

Reservation of power to alter and repeal Licenses to use public property Street and other franchises 573577	598

Question of municipal power 575 Question of surrender of police power 576 License a contract or a right of property	599

Revocability not effected by exclusiveness Suggestions regarding rights claimed under affirmative sanction 578582	602

579 Equity of executed consideration	603

Licenses limited in time not a surrender of the police power	604

Perpetual licenses unreasonable 582 Licenses in terms made revocable	605

CHAPTER XXVII	607

Perpetuities and mortmain 589596	611

Perpetual covenants	612

Entails	613

Acts of secularisation	614

Suppression of monastaries in England 594 Virginia legislation	615

Pawlet v Clark 596 The Mormon Church case	616

Under the police power	617

Legislative power over eleemosynary trusts 597601	618

Eleemosynary trusts and the Dartmouth College doctrine 598 Doctrines laid down in Mormon Church case	620

Effect of reserved power over corporate charter	621

Trust objects becoming contrary to public policy	622

English legislation Note Power over eleemosynary trusts by Prussian	623

Summary of principles regarding property under the police power	625

FUNDAMENTAL RIGHTS THIRD EQUALITY CHAPTER XXVIII	626

Equality in England	627

Equality in France 607 Equality in Prussia	628

Equality under American state constitutions	629

The Fourteenth Amendment and the Slaughter House cases	630

Equality and the equal protection of the laws 611 Equality and due process of	633

CHAPTER XXIX	635

Subject selected to be responsible for condition calling for burden and responsibility	636

Particular services 614 Emergency services	637

Underwriters patrols	638

Where land not the source of the danger	641

Cleaning sidewalks	643

Special liability in connection with hazardous undertakings 621638	644

Liability for cost of official supervision 623 Liability for the cost of remedial measures 624 Liability for acts of persons employed under legal comp...	646

Ships liability for fault of pilot	647

Civil Damage acts NoteSubcontractors liens 627 Liens under U S Revenue laws	650

Dangers incident to the operation of railroads 629 Injuring or killing of cattle	651

Fire started by sparks from locomotives	653

Railroad crossings	655

Injury to passengers	656

Absolute liability for personal injuries under other legal systems 634 Constitutionality of absolute liability	657

Penal liability and fault wrongful intent dispensed with	659

Knowledge presumed 637 Penal liability of railroad companies	661

Penalty corresponding to fault	663

CHAPTER XXX	664

Right to equality notwithstanding liability to entire prohibition	665

Restrictions based on objective conditions 641645	666

cases in which held unconstitutional	667

cases in which sustained	669

Vote or consent of people of locality Professional qualification 646650	671

Discrimination in tests of fitness 648 Encroachment upon judicial power 649 Delegation of legislative power	673

Privileges accompanying professional license	674

Qualification of character 651653	675

Substitution of ministerial function	676

Administrative discretion as regards business intrinsically harmless Judicial Control 654655	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 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 672 Restriction of numbers	694

Resulting privileges	695

Revocability of monopolies and grant of competing rights 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

b Education	718

Employment of women in the liquor business	724

Nonresident U S citizens	730

Proprietary resources of state Corporations 713715	733

Corporate capacity and vested rights	735

Foreign corporations 716720	736

Foreign corporations engaged in commerce	737

Exercising corporate powers within state	738

Foreign railroad companies	739

Fixed corporate property within the state D DISCRIMINATION BASED ON DIFFERENCE OF ACTS AND OCCUPATIONS 721738 721 Police po...	740

Police power may single out one side of a relation 723 Discrimination between similar evils	741

Abstract classification according to degree of danger	742

Classification by social or economic groups	743

Synopsis of decisions 727 Legislation for the prevention of accidents	744

Sanitary legislation	746

Public order 730 Legislation against gambling	747

Legislation against fraud 732 Licensing occupations	748

733 Regulation of rates and charges	749

Antitrust legislation 735 Labor legislation	750

Principles deducible from decisions	753

Systematic legislation	754

Formation of principle	755

Unsightliness 180183	816

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Title	The Police Power, Public Policy and Constitutional Rights Making of modern law The Police Power, Public Policy and Constitutional Rights, Callaghan and Company
Author	Ernst Freund
Publisher	Callaghan, 1904
Original from	the University of Michigan
Digitized	14 Oct 2008
ISBN	5870981069, 9785870981062
Length	819 pages

Export Citation	BiBTeX EndNote RefMan

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