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Subject Area: Law
Topic: The American Revolution and Constitution

§ 147.: The regulation of unwholesome and objectionble trades.— - 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. 2 [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. 2.

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.

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§ 147.

The regulation of unwholesome and objectionble trades.—

Perhaps the judicial character of the power to determine what is a nuisance, is best displayed in the consideration of a late case from the New York Court of Appeals,2 in which an act of the legislature was declared to be unconstitutional, which made it a misdemeanor to manufacture cigars, in cities of more than five hundred thousand inhabitants, in any tenement house occupied by more than three families, except on the first floor of the house, on which there may be a store for the sale of cigars and tobacco. In delivering the opinion of the court, Judge Earle said: “It is plain that this law interferes with the profitable and free use of his property by the owner or lessee of a tenement house who is a cigar maker, and trammels him in the application of his industry and the disposition of his labor, and thus, in a strictly legitimate sense, it arbitrarily deprives him of his property and of some portion of his personal liberty. The constitutional guaranty that no person shall be deprived of his property without due process of law may be thus violated without the physical taking of property for public or private use. This guarantee would be of little worth if the legislature could, without compensation, destroy property or its value, deprive the owner of its use, deny him the right to live in his own house or to work at any lawful trade therein. If the legislature has the power under the constitution to prohibit the prosecution of one lawful trade in a tenement house, then it may prevent the prosecution of all trades therein.” * * * “All laws which impair or trammel these rights, which limit one in his choice of a trade or a profession, or confine him to work or live in a specified locality, or exclude him from his own house, or restrain his otherwise lawful movements (except in police regulations) are infringements upon his fundamental rights of liberty, which are under constitutional protection.” * * * In speaking of the limitations upon the police power of the government, he continues: “Under it the conduct of an individual, and the use of property may be regulated so as to interfere to some extent with the freedom of the one and the enjoyment of the other, and in cases of great emergency, engendering overruling necessity, property may be taken and destroyed without compensation, and without what is commonly called due process of law. The limit of the power cannot be accurately defined, and the courts have not been able or willing definitely to circumscribe it. But the power, however broad and extensive, is not above the constitution. It furnishes the supreme law, and so far as it imposes restraints the police power must be exercised in subordination thereto.” * * * “Generally, it is for the legislature to determine what laws and regulations are needed to protect the public health and secure the public comfort and safety, and while its measures are calculated, intended, convenient and appropriate to accomplish these ends, the exercise of its discretion is subject to the review of the courts. If it passes an act ostensibly for the public health, and thereby destroys or takes away the property of a citizen or interferes with his personal liberty, then it is for the courts to scrutinize the act and see whether it really relates to and is convenient and appropriate to promote the public health.”

Whether the court was correct in holding this statute to be unconstitutional, because the regulation did not tend to promote the public health, need not be discussed here. The principle is clearly settled, that the court did not exceed its power, in pronouncing the law to be unconstitutional on that ground. But the court would have trespassed upon the powers of the legislature, if it had undertaken to pass upon the necessity of the regulation. It falls within the legislative discretion in every case to decide upon the necessity for the exercise of its police power.

It can not be questioned that the State has the power to prohibit the prosecution of all unwholesome or injurious trades and employments in these large tenement houses in our metropolitan cities, in which the people are often huddled together like cattle. The manufacture of cigars is considered by some to so taint the atmosphere as to endanger the health of the occupants of the house. If this be true, then the legislature has undoubtedly the power to prohibit the prosecution of this trade in a tenement house occupied by three or more families. The injurious effect upon the health of the cigarmaker’s family may not furnish the proper justification for legislative interference, except in behalf of minor children. For since the wife and grown children, in the theory of law, if not in fact, voluntarily subject themselves to the unwholesome odors of the tobacco, they do not need and cannot demand the protection of the law. But where a house is occupied by more than one family, the other families have a right to enjoy the possession of their parts of the house, free from the unwholesome or disagreeable odors of a trade that is being plied by another in the same house.

A very common evil is the washing of soiled clothes in tenement houses. There can be very little doubt that infectious and contagious diseases may be communicated and spread over a large area through the medium of soiled clothes; and if the legislature were to see fit to prohibit washerwomen from plying their trade in tenement houses, I cannot see what constitutional objection could be raised to such and similar regulations, even though their enforcement may impose very great hardships upon those who can least bear them. Granting that the prohibited trade is unwholesome to the occupants of the house, the advisability of the prohibition must be referred to the legislative discretion.

As long as a trade does not injure the public health, and is the source of no annoyance whatever to the inhabitants of the locality in which it is conducted, it cannot lawfully be prohibited.1 Every man has a constitutional right to follow on his premises any calling, provided it does not in any way interfere with another’s reasonable enjoyment of his premises. But if the prosecution of a certain trade affects another injuriously, the State may so regulate the trade that the injury may be avoided or reduced to a minimum. The exclusion of any lawful business from a particular locality can only be justified upon the ground that the health, safety or comfort of the surrounding community requires such exclusion. If the trade is in itself, and necessarily, harmful to one’s neighbors, or to the public health, it may be prohibited altogether. But if it can be prosecuted under certain limitations, so as to avoid injury to others, the police regulation must be confined to the imposition of these needed restrictions, and the trade cannot be absolutely prohibited.1

The police regulation cannot extend beyond the evil to be remedied. Where, therefore, certain trades and employments, which serve some useful purpose and add something to the world’s wealth, are harmful to the inhabitants of the locality, in which they may be conducted; and the harm may be avoided altogether, or considerably reduced, by confining them to localities, in which the population is sparse and the residences are few; it is altogether permissible to prohibit the prosecution of these trades in other localities. The instances of this kind of regulation are very numerous. Slaughter-houses have been confined to certain localities,2 the sale of fresh meat and vegetables has been prohibited except in the public markets, where the articles exposed for sale may be conveniently inspected.3 In the same way may the manufacture of pressed hay,4 the maintenance of dairies,1 the cultivation of land within the limits of a town,2 and the storage of cotton and other combustible material, such as oil and gunpowder, be prohibited in the densely settled parts of the city, and the prosecution of such trades be confined to certain less dangerous localities. In the same way may the sale of intoxicating liquors be prohibited in certain localities, for example, within a certain distance of the State insane asylum, university or State capitol,3 provided it be conceded that the sale of intoxicating liquors in those localities, in a legal sense, threatens an injury to the public.4 It has also been held to be permissible to prohibit the sale of intoxicating liquors in the residential portions of a town or city; while the business is permitted to be carried on elsewhere.5 The prohibition of the business of fat-rendering and bone-boiling within the limits of a city has likewise been sustained.6

But in all these cases the prohibition must be confined to the removal of the evil to be guarded against. There cannot be an absolute prohibition of a trade in a locality, in which it may be prosecuted without annoyance or inconvenience to the neighboring residents. Thus it has been held to be unreasonable to prohibit the establishment of a steam engine within the limits of the city.7 So, also, has it been held to be unconstitutional to prohibit indiscriminately the prosecution of all kinds of business on a certain boulevard or street.1 And in California, where antipathy to the Chinese has occasioned numerous hostile acts of legislation, it was held to be unconstitutional to prohibit the prosecution of the laundry business in certain localities (in that case the Chinese quarters of San Francisco), unless it can be shown that the health, comfort or safety of the community was thereby endangered.2

It has been well-established that the length of time, during which a business has been conducted in a certain locality, does not make its prohibition for the future unconstitutional. Granted the fact, that by the growth of a city, the locality has been converted into a thickly populated district, and that in consequence of such municipal growth, the health, comfort or safety of the people would be endangered by the continuance of the business in that locality, the power of the government, to prohibit the further prosecution of the objectionable business in that locality, is not at all limited or restricted by the fact that the enforced removal to another locality would entail heavy or irreparable loss upon proprietors.3

An extremely interesting and important case has recently arisen in the courts of Louisiana, which involves the exercise of the police power for the confinement of objectionable trades within a prescribed locality, and the prohibition of it elsewhere; while it at the same time raises the question of the power of the government over vice and vicious practices.

The city of New Orleans enacted an ordinance which set apart certain sections of the city within which prostitutes were required to live. The ordinance has been in force for some time, and recently the area of permitted habitation of that class of the population has been enlarged. The constitutionality of the ordinance was attacked principally upon two grounds: first, that the ordinance necessarily involves the licensing of trade in vice, which is not allowable; and, secondly, that the values of real estate are depreciated by the ordinance. The court denied the soundness of both arguments, and sustained the ordinance as a constitutional exercise of the police power. In rendering this judgment, the court said in part:1 —

“The regulation of houses of prostitution would seem to be so closely connected with public order and decency, the policy announced by the ordinance has been so long exerted in all large cities of our country, and the power has had such frequent recognition in the charters of this city, that it would seem the power itself cannot be successfully controverted.2 We have, however, given careful attention to the argument that urges objection to all such legislation, and which directs attention to the grounds of opposition deemed specially applicable to the ordinance, the execution of which is sought to be arrested. That there are limitations to the power asserted by this ordinance, may be conceded. It does not, however, readily occur to the mind that confining houses of this character within certain limits by the appropriate ordinance, is violative of any of the constitutional guaranties invoked in this discussion before us. The ordinance neither sanctions nor undertakes to punish vice. The power to punish vice, not in the form of an offense, denied by the argument and enforced by the authorities we find in the briefs, is, in our view, entirely distinct from the function the ordinance asserts as belonging to municipal government, by the express terms of the city charter. It is urged, too, the ordinance is a license for vice, and hence illegal.1 Undoubtedly, the court should refuse its aid to any ordinance if of the character asserted by the argument. The vice, the subject of this ordinance, beyond the reach of penal statutes, is simply subjected by this ordinance to that restraint demanded by the public interest. The unfortunate class dealt with by the ordinance must live. They are not denied shelter, but assigned that portion of the city beyond which they are not permitted to establish their houses. Thus viewed, the ordinance cannot be deemed open to the objections that it either punishes or grants a license to vice beyond the competency of the council.” * * * “There remains the argument addressed to us, varied in form, but maintaining the general proposition that the ordinance operates to deprive the citizen of his property, that is, to depreciate its value—the same as deprivation in legal effect. We can readily appreciate there might be an arbitrary exercise of this power that would warrant an appeal to the courts. Thus, to extend these limits so as to embrace, without any apparent reason, if reason could exist, portions of the city always devoted to private residences, schools, churches and other lawful uses, might well be deemed oppressive and an abuse of the power of municipal government; but as we understand this ordinance in its main features, it is restrictive—that is, it confines these houses within narrower bounds. * * * To whatever extent, however, the right of private property may be deemed affected by this last ordinance, it must be borne in mind that it is the great power of government given to preserve the morals, health, and lives of the community that requires the surrender of right by the citizens supposed to be exacted by this ordinance. To that police power all must yield obedience. As put in the text-books and enforced by all decisions: Every citizen holds his property subject to the proper exercise of the police power exerted either by the Legislature or by the subordinate political corporations. It is settled that police laws and regulations, though they may disturb the enjoyment of individual rights, are not unconstitutional. They do not expropriate property for public use. If the individual sustains injury it is deemed damnum absque injuria; or in the theory of the law, the injury to the owner is deemed compensated by the public benefit the regulation is designed to subserve.”

The reference of the court to a preceding text of this book1 as well as the present case, should be read in connection with what is stated in the section,2 in which the distinction is made between vice and crime as subjects for police regulation, and the police jurisdiction over the former denied.

In Kentucky, a statute was enacted, forbidding any person from carrying on the stabling business within a specified distance of the grounds of a named agricultural society during the maintenance of its fairs, and imposing a penalty for the breach of the law. In a suit, brought under the statute, it could not be established that the prosecution of the business of stabling in that locality was likely to produce any public harm, and the court therefore declared the regulation to be an unconstitutional interference with the right of enjoyment of private property.3 But the location of stables within a city may and is often regulated in the interest of the public health.4

Another curious and questionable exercise of police power, in prohibiting objectionable trades in certain localities, is to be found reported in the case of Commonwealth v. Bearse.1 A statute was passed, prohibiting the establishment of any store, tent, or booth, for the purpose of vending provisions and refreshments, or for the exhibition of any kind of show or play, within one mile of the camp-meeting grounds during the time of holding any camp or field meeting for religious purposes, except with the consent of those having the camp-meeting in charge, provided that no one will be required to suspend any regular, usual, and established business, which is being conducted within such limits.2 The object of the statute was to prevent the disturbance of the religious meeting by the presence of hucksters and peddlers, who are drawn thither purely by the desire to barter with those who are in attendance upon the meeting. Inasmuch as no one’s regular business is interfered with, the owner of contiguous land is only prohibited from so using his land as to make a profit out of the camp-meeting, to the annoyance of those who have assembled there for worship. This limitation upon the right of enjoyment of one’s lands was declared to be a constitutional exercise of police power. The court say: “It is contended that the defendant’s use of his own land is subjected to the will of another; that he cannot under this law use it for an otherwise lawful purpose, except with the consent of another. But no general control has been assumed over his land; no lawful and established business that he has is interfered with. If it be that of selling provisions and refreshments he may continue it, although the camp-meeting has assembled. If he purposes to make a use of his land that he would not have made but for the assembling of the camp-meeting, that is not an improper police regulation which requires him to obtain the consent of its authorities. * * * If a business were in its character such as was, or was liable to become, a nuisance, the legislature might entirely forbid it. It would equally provide that it should not be maintained except with the consent of those in whose vicinity it was to be carried on, on account of the inconveniences attending it. This does not compel one to submit to others the inquiry whether he shall use his own land in a lawful way, but it is a legislative decision that such use is not lawful or permissible, unless consent is obtained from those who are already using their property in such a way that they may be annoyed.”

Confined within these narrow limits, it is probable that the constitutionality of the regulation may be sustained, on the ground that the business of catering to the wants of those in attendance on the camp-meeting may become a nuisance, unless it is regulated in this manner. But a law could not be sustained, which compelled a man to suspend his regularly established business during the time of holding the meeting, because in the regular prosecution of his business he might supply the wants of the camp-meeting company. Such a law would be an unconstitutional interference with the natural right of enjoyment of one’s property.

Somewhat in the line of the subject of the present section, is the attempt by legislation to suppress the smoke nuisance; particularly, in the places where bituminous coal is used. There can be no question that the State has the power to compel those who use the coal in populated districts to employ every known means of a reasonable character to consume the smoke. But, in the enforcement of such a regulation, it must apply equally and impartially to all. For the reason, that certain factories were excepted from the enforcement of such a regulation, the act, prohibiting the emission of dense smoke within a city was declared to be unconstitutional.1

[2]In the matter of Jacobs, 98 N. Y. 98 (50 Am. Rep. 636).

[1]See ante, § 126, on the police control of employments in respect to locality.

[1]“Conceding that the power ‘to abate and remove’ should be construed as including the power to prevent, yet this preventive power could only be exercised in reference to those things that are nuisances in themselves and necessarily so. There are some things which in their nature are nuisances, and which the law recognizes as such; there are others which may or may not be so, their character in this respect depending on circumstances.” Lake View v. Setz, 44 Ill. 81.

[2]Cronin v. People, 82 N. Y. 318; Metropolitan Board of Health v. Heister, 37 N. Y. 661; Slaughter-house Cases, 16 Wall. 36; Milwaukee v. Gross, 21 Wis. 241; Villavaso v. Barthet, 39 La. Ann. 247; Beiling v. City of Louisville, 144 Ind. 644.

[3]Buffalo v. Webster, 10 Wend. 99; Bush v. Seabury, 8 Johns. 418; Winnsboro v. Smart, 11 Rich. L. 551; Bowling Green v. Carson, 10 Bush, 64; New Orleans v. Stafford, 27 La. Ann. 417 (21 Am. Rep. 563); Wartman v. Philadelphia, 33 Pa. St. 202; St. Louis v. Weber, 44 Mo. 547; Ash v. People, 11 Mich. 347; Leclaire v. Davenport, 13 Iowa, 210. Contra, Bethune v. Hayes, 28 Ga. 560; Caldwell v. Alton, 33 Ill. 416; Bloomington v. Wahl, 46 Ill. 489.

[4]Mayor City of Hudson v. Thorn, 7 Paige, 261.

[1]In re Linehan, 72 Cal. 114; State v. Broadbelt (Md. ’99), 43 Atl. Rep. 771.

[2]Town of Summerville v. Pressley, 33 S. C. 56.

[3]State v. Joyner, 81 N. C. 534; Ex parte McClain, 61 Cal. 436 (44 Am. Rep. 554); Dorman v. State, 34 Ala. 216; Boyd v. Bryant, 35 Ark. 69 (37 Am. Rep. 6); Trammell v. Bradley, 37 Ark. 356; Bronsin v Oberlin, 41 Ohio St. 476 (52 Am. Rep. 90).

[4]See ante, § 125.

[5]Shea v. City of Muncie, 148 Ind. 14.

[6]People v. Rosenberg, 67 Hun, 52; Fertilizing Co. v. Hyde Park, 97 U. S. 759.

[7]Baltimore v. Redecke, 49 Md. 217 (33 Am. Rep. 239.)

[1]City of St. Louis v. Dorr. 145 Mo. 465.

[2]In re Hong Wah, 82 Fed. 623; Ex parte Sing Lee, 96 Cal. 354. In the latter case, it was held that the regulation was nevertheless invalid, although it provided that the business could be carried on elsewhere, with the written consent of a majority of the real property owners of the block.

[3]Fertilizer Company v. Hyde Park, 97 U. S. 759; Fertilizer Company v. Malone, 73 Md. 268; Villavaso v. Barthet, 39 La. Ann. 247.

[1]L’ Hote v. City of New Orleans, 51 La. Ann. 93.

[2]City Charter 1870, § 12; Id. 1882, § 8; Id. 1896, § 15.

[1]Tiedeman Pol. Power, p. 291.

[1]In the present edition, § 121.

[2]Present edition, § 60.

[3]Commonwealth v. Bacon, 13 Bush, 210 (26 Am. Rep. 189); see to the same effect, Meyers v. Baker, 120 Ill. 567.

[4]City of Newton v. Joyce, 166 Mass. 83.

[1]132 Mass. 542 (42 Am. Rep. 450).

[2]Mass. Statute of 1867, ch. 59.

[1]State v. Sheriff of Ramsey County, 48 Minn. 236.