Front Page Titles (by Subject) § 86.: Prohibition as to certain classes.— - 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
§ 86.: Prohibition as to certain classes.— - 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 
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.
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- Preface to the Second Edition.
- State and Federal Control of Persons and Property. Vol. I.
- Chapter I.: Scope of the Government Control and Regulation of Personal Rights.
- § 1.: Police Power—defined and Explained.—
- § 2.: The Legal Limitations Upon Police Power.—
- § 3.: Construction of Constitutional Limitations.—
- § 4.: The Principal Constitutional Limitations.—
- § 5.: Table of Private Rights.—
- Chapter II.: Government Regulation of Personal Security.
- § 10.: Security to Life.—
- § 11.: Capital Punishment, When Cruel and Unusual.—
- § 12.: Security to Limb and Body—general Statement.—
- § 13.: Corporal Punishment—when a Cruel and Unusual Punishment.—
- § 14.: Personal Chastisement In Certain Relations.—
- § 15.: Battery In Self-defense.—
- § 16.: Abortion.—
- § 17.: Compulsory Submission to Surgical and Medical Treatment.—
- § 18.: Security to Health—legalized Nuisance.—
- § 19.: Security to Reputation—privileged Communications. 3 —
- § 20.: Privilege of Legislators.—
- § 21.: Privilege In Judicial Proceedings.—
- § 22.: Criticism of Officers and Candidates For Office.—
- § 23.: Publications Through the Press.—
- § 24.: Security to Reputation—malicious Prosecution.—
- § 25.: Advice of Counsel, How Far a Defense.—
- Chapter III.: Personal Liberty.
- § 26.: Personal Liberty—how Guaranteed.—
- Chapter IV.: Government Control of Criminal Classes.
- § 27.: The Effect of Crime On the Rights of the Criminal—power of State to Declare What Is a Crime.—
- § 28.: Due Process of Law.—
- § 29.: Bills of Attainder.—
- § 30.: Ex Post Facto Laws.—
- § 31.: Cruel and Unusual Punishment In Forfeiture of Personal Liberty and Rights of Property.—
- § 32.: Preliminary Confinement to Answer For a Crime—commitment of Witnesses.—
- § 33.: What Constitutes a Lawful Arrest.—
- § 34.: Arrests Without a Warrant.—
- § 35.: The Trial of the Accused.—
- § 36.: The Trial Must Be Speedy.—
- § 37.: Trials Must Be Public.—
- § 38.: Accused Entitled to Counsel.—
- § 39.: Indictment By Grand Jury Or By Information.—
- § 40.: The Plea of Defendant.—
- § 41.: Trial By Jury—legal Jeopardy.—
- § 42.: Right of Appeal.—
- § 43.: Imprisonment For Crime—hard Labor—control of Convicts In Prison.—
- § 43 A.: Convict Lease System.—
- Chapter V.: The Control of Dangerous Classes, Otherwise Than By Criminal Prosecution.
- § 44.: Confinement For Infectious and Contagious Diseases.—
- § 45.: The Confinement of the Insane.—
- § 46.: Control of the Insane In the Asylum.—
- § 47.: Punishment of the Criminal Insane.—
- § 48.: Confinement of Habitual Drunkards.—
- § 49.: Police Control of Vagrants.—
- § 50.: Police Regulation of Mendicancy.—
- § 51.: Police Supervision of Habitual Criminals.—
- § 52.: State Control of Minors.—
- Chapter VI.: Regulations of the Rights of Citizenship and Domicile.
- § 53.: Citizenship and Domicile Distinguished.—
- § 54.: Expatriation.—
- § 55.: Naturalization.—
- § 56.: Prohibition of Emigration.—
- § 57.: Compulsory Emigration.—
- § 58.: Prohibition of Immigration.—
- § 59.: The Public Duties of a Citizen.—
- Chapter VII.: State Regulation of Morality and Religion.
- § 60.: Crime and Vice Distinguished—their Relation to Police Power.—
- § 61.: Sumptuary Laws.—
- § 62.: Church and State—historical Synopsis.—
- § 63.: Police Regulation of Religion—constitutional Restrictions.—
- § 64.: State Control of Churches and Congregations.—
- § 65.: Religious Criticism and Blasphemy Distinguished.—
- § 66.: Permissible Limitations Upon Religious Worship.—
- § 67.: Religious Discrimination In Respect to Admissibility of Testimony.—
- § 68.: Sunday Laws.—
- Chapter VIII.: Freedom of Speech and Liberty of the Press.
- § 81.: Police Supervision Prohibited By the Constitutions.—
- Chapter IX.: Regulation of Trades and Occupations.
- § 85.: General Propositions.—
- § 86.: Prohibition As to Certain Classes.—
- § 87.: Police Regulation of Skilled Trades and Learned Professions.—
- § 88.: Regulation of Practice In the Learned Professions.—
- § 89.: Regulation of Sale of Certain Articles of Merchandise.—
- § 90.: Regulations to Prevent Fraud.—
- § 91.: Legal Tender and Regulation of Currency.—
- § 92.: Free Coinage of Silver and the Legal Tender Decisions.—
- § 93.: Legislative Restraint of Importations—protective Tariffs.—
- § 94.: Liberty of Contract, a Constitutional Right.—
- § 95.: Compulsory Formation of Business Relations—common Carriers and Innkeepers Exceptions to the Rule—theaters and Other Places of Amusement.—
- § 96.: Regulation of Prices and Charges.—
- § 97.: Later Cases On Regulating Prices and Charges—regulations Must Be Reasonable—what Is a Reasonable Regulation, a Judicial Question.—
- § 98.: Police Regulation of the Labor Contract.—
- § 99.: Regulation of Wages of Workmen—mode of Measuring Payment—compulsory Insurance and Membership In Benefit Societies—release From Liability For Injuries to Employees.—
- § 100.: Regulation of Wages of Workmen, Continued—time of Payment—medium of Payment—fines and Deductions For Imperfect Work—mechanics’ Lien and Exemption of Wages.—
- § 101.: Prohibition of Employment of Aliens—exportation of Laborers—importation of Alien Laborers Under Contract—chinese Labor—employers Compelling Workmen to Leave Unions.—
- § 102.: Regulating Hours of Labor.—
- § 103.: Regulations of Factories, Mines and Workshops—sweatshops. 1 —
- § 104.: Period of Hiring—breach Or Termination of Labor Contract—compulsory Performance of Labor Contract—requirement of Notice of Discharge—employers Required to Give Statement of Reasons For Discharge.—
- § 105.: Regulations of the Business of Insurance.—
- § 106.: Usury and Interest Laws.—
- § 107.: Prevention of Speculation.—
- § 108.: Prevention of Combinations In Restraint of Trade.—
- § 109.: A Combination to “corner” the Market.—
- § 109a.: Contracts Against Liability For Negligence Prohibited.—
- § 110.: Common Law Prohibition of Combinations In Restraint of Trade Restated.—
- § 111.: Industrial and Corporate Trusts, As Combinations In Restraint of Trade.—
- § 112.: Modern Statutory Legislation Against Trade Combinations, Virtual Monopolies, and Contracts In Restraint of Trade.—
- § 113.: Different Phases of the Application of Anti-trust Statutes—factor’s System—control of Patents—combinations Against Dishonest Debtors—agreements to Sell Only to Regular Dealers—combinations of Employers to Resist Combinations of Employees—departmen
- § 114.: Labor Combinations—trades Unions—strikes.—
- § 115.: Strikes, Continued, and Boycotts.—
- § 116.: Wagering Contracts Prohibited.—
- § 117.: Option Contracts, When Illegal.—
- § 118.: General Prohibition of Contracts On the Ground of Public Policy.—
- § 119.: Licenses.—
- § 120.: Prohibition of Occupations In General. 5 —
- § 121.: Prohibition of Trade In Vice—social Evil, Gambling, Horse-racing.—
- § 122.: Prohibition of Trades For the Prevention of Fraud—adulterations of Goods—harmful Or Dangerous Goods—prohibition of Sale of Oleomargarine.—
- § 123.: Prohibition of Ticket-brokerage—ticket-scalping Prohibited and Punished.—
- § 124.: Prohibition of Sale of Game Out of Season—prohibition of Export of Game.—
- § 125.: Prohibition of the Liquor Trade.—
- § 126.: Police Control of Employments In Respect to Locality. 3 —
- § 127.: Monopolies—general Propositions.—
- § 128.: Monopolies and Exclusive Franchises In the Cases of Railroads, Bridges, Ferries, Street Railways, Gas, Water, Lighting, Telephone and Telegraph Companies.—
- § 129.: Patents and Copyrights, How Far Monopolies.—
- § 130.: When Ordinary Occupations May Be Made Exclusive Monopolies—saloons—banking—insurance—peddling—building and Loan Associations—restriction of Certain Trades to Certain Localities—slaughterhouses—markets.—
- § 131.: National, State and Municipal Monopolies.—
Prohibition as to certain classes.—
A calling may be generally harmless, when prosecuted by some classes of persons, and very harmful when engaged in by others. Thus, for example, it can readily be seen that the keeping of billiard saloons, of bar rooms, and other public resorts by women, will prove highly injurious to the public morals, while there is no such peculiar danger arising from the keeping of such places by men. A law which prohibited women from engaging in these occupations would be for that reason justifiable under the constitutional limitations. Regulations have also been sustained, which were designed to prevent men of bad repute from engaging in employments, which from their nature are likely to become public nuisances, if conducted without safeguards. Thus it has been common, for this reason, to require hackmen, and keepers of places of public resort, to take out a license, and to give security for their good behavior or testimonials of good character. It has also been held that “the State may forbid certain classes of persons being employed in occupations which their age, sex, or health renders unsuitable for them, as women and young children are sometimes forbidden to be employed in mines and certain kinds of manufacture.” The regulations, prohibiting women and children from being employed in certain callings or trades, are becoming quite common, particularly in regard to child labor. In the case of women, the prohibition relates generally to working in mines. But children under ages, stated in and varying with the provisions of the different States, are in some States prohibited altogether from working outside of their homes, while in others they are only prohibited from engaging in certain kinds of work. The total prohibition is designed to aid in the enforcement of the attendance upon the school, and both the total and partial prohibitions of child labor are designed to promote their physical and mental growth, by the removal of all strains, which may be caused by excessive labor. In so far as the employment of a certain class in a particular occupation may threaten or inflict damage upon the public or third persons, there can be no doubt as to the constitutionality of any statute which prohibits their prosecution of that trade. But it is questionable, except in the case of minors, whether the prohibition can rest upon the claim that the employment will prove hurtful to them. Minors are under the guardianship of the State, and their actions can be controlled so that they may not injure themselves. But when they have arrived at majority they pass out of the state of tutelage, and stand before the law free from all restraint, except that which may be necessary to prevent the infliction by them of injury upon others. It may be, and probably is, permissible for the State to prohibit pregnant women from engaging in certain employments, which would be likely to prove injurious to the unborn child; but there can be no more justification for the prohibition of the prosecution of certain callings by women, because the employment will prove hurtful to themselves, than it would be for the State to prohibit men from working in the manufacture of white lead, because they are apt to contract lead poisoning, or to prohibit occupation in certain parts of iron smelting works, because the lives of the men so engaged are materially shortened.
See Blair v. Kilpatrick, 40 Ind. 312; State v. Considine, 16 Wash. 358; Bergman v. Cleveland, 39 Ohio St. 651; in which it was held that the granting of liquor licenses to men only, did not violate the constitutional provisions against the granting of special privileges. But under the constitution of California, which provides that no person shall be disqualified by sex from pursuing any lawful vocation, it was held that a similar regulation, excluding females from employment in certain kinds of drinking saloons, was unconstitutional. Matter of Maguire, 57 Cal. 604 (40 Am. Rep. 125); In re Considine, 83 F. 157. But see Ex parte Felchin, 96 Cal. 360, in which it was held to be not unconstitutional, to exact a license fee of $30 per quarter of saloon keepers in general, and a fee of $150 where a female is employed as bartender, actress, dancer or singer. This was held to be no violation of the constitutional provision that “no person shall, on account of sex, be disqualified from entering upon or pursuing any lawful business, vocation or profession.”
Cooley Const. Law, p. 231. In Com. v. Hamilton Manfg. Co., 120 Mass. 383, it was held that a statute prohibiting the employment of all persons under eighteen, and of all women in laboring in any manufacturing establishment more than 60 hours per week (Mass. Stat. 1874), violates no contract implied in the granting of a charter to any manufacturing company, nor any right reserved under the constitution to any citizen, and may be maintained as a health or police regulation.
People v. Ewer, 141 N. Y. 129.