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Subject Area: Law
Topic: The American Revolution and Constitution

§ 164.: Regulation and prohibition of the sale of personal property.— - 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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§ 164.

Regulation and prohibition of the sale of personal property.—

It is one of the absolute rights of the individual to be free from unreasonable restraints upon the sale or transfer of his personal property. The right to sell or transfer one’s property is as much an inalienable right as that of enjoyment of the property free from unnecessary restrictions. Of course, the right to sell may be subjected to whatever regulations may be needed to prevent any threatened injury to the public or to third persons. In the discussion of the police regulation of trades and employments, the regulation and prohibition of the sale of personal property, as a trade or occupation, have been discussed at length;1 and, inasmuch as all such regulations are designed to control the sale of merchandise, as a trade, they are considered and criticised in the character of restraints upon the liberty of exercising a lawful calling, rather than as an invasion of the rights of property. In the main, the same objections apply to a police regulation, whether it is considered to be an infringement of personal liberty or of the rights of property. It will, therefore, not be necessary to discuss all such regulations in detail in this place, as it would be hardly more than a repetition of what has already been written.2 But in the application of the principles there set forth, as limiting the police regulation of employments and of the sale of personal property, a distinction should be drawn between the selling of personal property as a trade, and as a solitary or occasional exercise of a right of ownership. The sale of certain personal property, as a trade, may be liable to become harmful to the public, and for that reason may properly be subjected to police regulation; whereas the mere act of selling the article of merchandise, independently of being the ordinary occupation of the seller, would contain no element of danger to the public, and therefore cannot be subjected to any police regulation whatever: and wherever the two acts can be separated, the regulation must be confined to those cases in which the selling, on account of its frequency, or of its connection with the sale of other similar articles of merchandise, assumes the character of a trade or occupation. Regulations for the prevention of fraud are, probably in every case, applicable to the unusual, as well as to the ordinary sale of personal property; so that, for example, in order to make a valid sale, as against a second purchaser, the possession must be delivered, independently of the frequency or infrequency of the act.1

But there are other cases of police regulation, which are designed to correct evils, which only arise in connection with the prosecution of a trade or occupation. Thus, for example, the sale of unwholesome food by a grocer may be prohibited altogether, in the course of his regular business, for his business is the sale of food for human consumption; and the sale by him of unwholesome food to his regular customers will almost necessarily inflict injury on the public health. And so would the sale of such food be likely to prove harmful to the public, if it should be sold by any casual owner for the purpose of being used as an article of food. But if it were sold, independently of one’s business as a vendor of human food, for some other lawful purpose, its sale could not be prohibited, for it contains no element of danger to the public health.

Conceding the position maintained in a previous section,2 that the sale of liquor in saloons, to be drunk on the premises, is the only case of the sale of intoxicating liquors which may be prohibited; and that the ground for the justification of prohibition in that case is the fact, that liquor saloons are the resort of all the more or less lawless elements of society, and consequently the public peace is endangered by their presence in the community; it is easy to understand how the prohibition of liquor saloons may be justified, and yet the application of the prohibitory law to an unusual or single case of the sale of liquor, to be drunk on the premises, by one who is not a saloon keeper, may be resisted on constitutional grounds. The latter case could not threaten a disturbance of the public peace, any more than the intemperate use of liquor, in whatever way it may be procured, is likely to do so. The cases in which this distinction would be likely to find application, are rare, and the subject need not be given any further attention.

In the sale of certain liquids, particularly milk, bottles are used, which are stamped with the name of the owner, who supplies their contents, and who, on account of the value of the bottles, desires them restored to his possession, after the customers have removed the contents. Apart from the value of these bottles, the unauthorized use of them by other dealers in the same commodities would furnish a ready opportunity to commit the fraud of palming off on future customers a spurious or inferior article as the product of the owner of the stamped bottles. For these reasons, a statute was passed in New York, which provides for the registry of stamped bottles, and prohibits the sale of them by any one without the consent of the owner, making such unauthorized sale of them a criminal misdemeanor. In its enforcement in the case of the sale of stamped milk bottles, the constitutionality of the law was attacked on the ground that the purchaser was thereby deprived of his right of property, in violation of constitutional guaranties. This plea was, however, denied, and the law was sustained.1

For the purpose of preventing the practice of fraud in the sale of intoxicating liquors, especially whisky, the distillers are in the habit of bottling the liquor under bond to the United States government, and sealing them with the government stamp, which denotes the age and guarantees the purity and strength of the liquor. An act of Congress makes it a criminal offense to fill up these bottles again, and to sell the substituted liquor in them, without completely removing the stamps and labels. There can be no question of the constitutionality of such laws. Nor would it be unconstitutional for a law to prohibit altogether the re-use of liquor bottles, which by their peculiar shape would be likely to mislead the purchaser as to the character of the contents.

The labor leaders have secured the enactment in some of the States, notably New York, of a law which prohibits the manufacture and sale of any goods, which are made with convict labor. Inasmuch as the convicts and the penitentiaries are under the complete control of the State authorities, and no personal rights can possibly be affected, if such a law were to operate only prospectively, as to the future products of convict labor, such a law in its prospective operation is clearly constitutional. But if it were made to operate retrospectively upon goods, which were made by convict labor prior to the enactment of the prohibitive law, there would be an unconstitutional interference with the right of private property of the owner of the goods so made. And it has been held that the law cannot act retrospectively, so as to annul a contract, not yet performed for farming out convict labor, which was made in accordance with the current laws of the State.1

[1]See ante, chapter IX., and particularly §§ 89, 96, 107, 108, 119, 120-125.

[2]See especially, §§ 89, 120-125.

[1]See in confirmation of the text. Conrad v. Smith (N. D.), 70 N. W. 815.

[2]See ante, § 125.

[1]People v. Cannon, 63 Hun, 306; s. c. 139 N. Y. 32; People v. Quinn, 139 N. Y. 32; People v. Bartholf, 139 N. Y. 32; Bell v. Gaynor, 36 N. Y. S. 122; 14 Misc. Rep. 334.

[1]Bronk v. Barckley, 43 N. Y. S. 400.