Econlib

The Library

Other Sites

 Front Page arrow Titles (by Subject) arrow § 85.: General propositions.— - A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 1

Return to Title Page for A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 1

Search this Title:

Also in the Library:

Subject Area: Law
Topic: The American Revolution and Constitution

§ 85.: General propositions.— - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 1 [1900]

Edition used:

A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 1.

Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


§ 85.

General propositions.—

It will probably not be disputed that every one has a right to pursue, in a lawful manner, any lawful calling which he may select. The State can neither compel him to pursue any particular calling, nor prohibit him from engaging in any lawful business, provided he does so in a lawful manner. It is equally recognized as beyond dispute, that the State, in the exercise of its police power, is, as a general proposition, authorized to subject all occupations to a reasonable regulation, where such regulation is required for the protection of public interests, or for the public welfare. It is also conceded that there is a limit to the exercise of this power, and that it is not an unlimited arbitrary power, which would enable the legislature to prohibit a business, the prosecution of which inflicts no damage upon others. But the difficulty is experienced, when an attempt is made to lay down a general rule, by which the validity of a particular regulation may be tested. No objection can be raised to such a regulation, unless it contravenes some constitutional provision. “The State legislatures have the power, unless there be something in their own constitution to prohibit it, of entirely abolishing or placing under restrictions any trade or profession, which they may think expedient.”1 And the courts, in passing upon the validity of a statute, should hold strongly to the presumption that the legislature had, in the enactment of the police regulation under inquiry, the sole desire and intention of thereby promoting the public health, comfort and safety, by the prohibition of some act injurious thereto. If the statute admits of two constructions, one of which is a reasonable exercise of police power, and the other is unreasonable, in that it promotes or does not promote the public interests; the former construction should be adopted, and the statute sustained as a constitutional exercise of the police power.2

It is a matter of great doubt, whether in any of the State constitutions there is any special limitation upon the power of the legislature to regulate and enjoin the prosecution of trades and occupations; and if there is any limitation it must be inferred from the general clauses, such as “every man has an inalienable right to life, liberty, and the pursuit of happiness,” or “no man shall be deprived of his life, liberty and property, except by due process of law.” No man’s liberty is safe, if the legislature can deny him the right to engage in a harmless calling; there is certainly an interference with his right to the pursuit of happiness in such a case; and such a prohibition would be a deprivation of his liberty “without due process of law.” Judge Cooley says in this connection: “What the legislature ordains and the constitution does not prohibit must be lawful. But if the constitution does no more than to provide that no person shall be deprived of life, liberty, or property, except by due process of law, it makes an important provision on this subject, because it is an important part of civil liberty to have the right to follow all lawful employments.”1 If these general constitutional provisions contain the only limitations upon the legislative power to regulate employments, in order to determine what are the specific limitations which these provisions impose, it will be necessary to refer to the limitations upon the police power in general.

It has already been determined that, in the exercise of the police power, personal liberty can be subjected to only such restraint as may be necessary to prevent damage to others or to the public.1 Police power, generally, is limited in its exercise to the enforcement of the maxim, sic utere tuo ut alienum non lædas.2

Whenever, therefore, the prosecution of a particular calling threatens damage to the public or to other individuals, it is a legitimate subject for police regulation to the extent of preventing the evil. It is always within the discretion of the legislature to institute such regulations when the proper case arises, and to determine upon the character of the regulations. But it is a strictly judicial question, whether the trade or calling is of such a nature, as to require or justify police regulation. The legislature cannot declare a certain employment to be injurious to the public good, and prohibit it, when, as a matter of fact, it is a harmless occupation. “The position, however, is taken on the part of the State, that it is competent for the legislature, whenever it shall deem proper, to declare the existence of any property and pursuit deemed injurious to the public, nuisances, and to destroy and prohibit them, as such; and that such an action of the legislature is not subject to be reviewed by the courts. We deny this position. We deny that the legislature can enlarge its power over property or pursuits by declaring them nuisances, or by enacting a definition of a nuisance that will cover them. Whatever it has a right by the constitution to prohibit or to confiscate, it may thus deal with, without first declaring the matter to be a nuisance; and whatever it has not a right by the constitution to prohibit and confiscate, it cannot thus deal with, even though it first declare it a nuisance.”1 It is also a judicial question whether the police regulation extends beyond the threatened evil, and prohibits that which involves no threatening danger to the public. If it is unconstitutional to impose police regulations upon an innocent calling, it must be likewise unconstitutional to place an occupation under police restraint beyond what is necessary to dissipate the threatening evil. The legislature has the choice of means to prevent evil to the public, but the means chosen must not go beyond the prevention of the evil and prohibit what does not cause the evil. To illustrate, the keeping of a public gambling house is in itself a public evil, and the legislature may place it under whatever police control it may see fit, even to the extent of prohibiting the keeping of them. But the profession of medicine is a proper and necessary calling, and if pursued only by men, possessed of skill, instead of threatening public evil, is of the highest value to a community. The only evil, involved in the prosecution of that calling, is that which arises from the admission of incompetent men into the profession. The police regulation of the practice of medicine must, therefore, be confined to the evil, and any prohibition or other restrictive regulation which went beyond the exclusion of ignorant or dishonest men, would be unconstitutional. The police regulation of trades and professions, must, therefore, be limited to such restrictions and limitations as may be necessary to prevent damage to the public or to third persons. Keeping these general rules in mind, we will now consider the various methods of police interference with employments.

[1]Austin v. State, 10 Mo. 591.

[2]People v. Warden of City Prison, 144 N. Y. 529.

[1]Cooley on Torts, p. 277. “No proposition is now more firmly settled than that it is one of the fundamental rights and privileges of every American citizen to adopt and follow such lawful industrial pursuits, not injurious to the community, as he may see fit. Slaughterhouse Cases, 16 Wall. 106; Corfield v. Coryell, 4 Wash. C. C. 380; Matter of Jacobs, 98 N. Y. 98.” The term ‘liberty,’ as protected by the constitution, is not cramped into a mere freedom from physical restraint of the person of the citizen, as by incarceration, but is deemed to embrace the right of man to be free in the enjoyment of the faculties with which he has been endowed by the Creator, subject only to such restraints as are necessary for the common welfare. In the language of Andrews, J., in Bertholf v. O’Reilly (74 N. Y. 515), the right to liberty embraces the right of man ‘to exercise his faculties and to follow the lawful avocations for the support of life,’ and as expressed by Earl, J., in In re Jacobs (98 N. Y. 98), ‘one may be deprived of his liberty, and his constitutional right thereto violated, without the actual restraint of his person. Liberty in its broad sense, as understood in this country, means the right not only of freedom from servitude, imprisonment or restraint, but the right of one to use his faculties in all lawful ways, to live and work where he will, to earn his livelihood in any lawful calling, and to pursue any lawful trade or avocation.’ ” People v. Marx, 99 N. Y. 377, 386. “The evidence in favor of the petitioner is abundant and of the highest kind that the article he sells, forbidden by the Missouri statute, is wholesome. It is not so much urged that anything in the constitution of Missouri forbids or limits its power in this respect by express language, as that the exercise of such a power in regard to a property shown to be entirely innocent, incapable of any injurious results or damage to the public health and safety, is an unwarranted invasion of public and private rights, an assumption of power without authority in the nature of our institutions, and an interference with the natural rights of the citizen and the public, which does not come within the province of legislation. The proposition has great force, and in the absence of any presentation of the motives and circumstances, which governed the legislature in enacting the law, we should have difficulty in saying it is unsound.” Justice Miller, In re John Brosnahan, Jr., 4 McCrary, 1.

[1]See ante, § 26.

[2]See ante, § 1.

[1]Beebe v. State, 26 Ind. 501. See, also, City of Richmond v. Southern Bell Telephone & Telegraph Co., 85 Fed. 19; Dillon v. Erie Ry. Co., 19 Misc. Rep. 16; 43 N. Y. S. 320; Ex parte Whitwell, 98 Cal. 73. In City of Richmond v. Southern Bell Telephone & Tel. Co., supra, it is expressly declared that the courts must declare invalid all regulations, which promote no public good, but which to no public purpose oppress, control, and possibly defeat the existence of the business or the corporation which is thus subjected to police regulation. On the other hand, in Dillon v. Erie Ry. Co., supra, the mere fact, that a regulation so reduces the profits of a business as to amount to a confiscation, does not make the regulation unreasonable and unconstitutional, as long as the regulation relates to a business which is affected with a public interest, and it is necessary in order to promote that public interest.