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Subject Area: Law
Topic: The American Revolution and Constitution

§ 172.: Regulation and prohibition of manufacture of certain 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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§ 172.

Regulation and prohibition of manufacture of certain property.—

As a general proposition, it can hardly be doubted that one has a constitutional right to change the form and condition of his personal property to whatever extent he may see fit; and he may make a business of manufacturing a given article, provided he does not threaten the public with any injury. And it may be safely stated that the manufacture of no useful article may be prohibited altogether. If the article can be put to a lawful and rightful use, it matters not how likely it will be used in a way harmful to the public, the right to manufacture it cannot be prohibited altogether. As has been already explained, in setting forth the various regulations that may be applied to trades and occupations,1 the manufacture of the article may be subjected to whatever regulations may be necessary to guard the public against injury in the process of manufacture, or afterwards in a wrongful use of it. Those who engage in its manufacture may be required to submit to a certain examination, in order to ascertain their fitness for the business, and to take out a license, if the manufacture requires such regulations. And if the danger to the public of a wrongful and illegitimate use of the manufactured article be so imminent as to call for such legislation, as seems very likely to happen with reference to the manufacture of dynamite, nitro-glycerine, and other like explosive compounds, the manufacture of it for the purpose of sale, that is, as a business, may be prohibited to all but a few licensed manufacturers or the agents of the State. But if, in the actual manufacture of the thing, without police supervision, as in the case of dynamite, there is no danger to the public, the fact that it can be put to a wrongful use will not justify legislation which probibits the owner of the raw material to manufacture the article which he does not intend to sell, but to make use of in a legitimate way. The manufacture of dynamite may be prohibited, as a business, to all but licensed manufacturers, because his intention to sell makes it very likely or at least possible that the identical stuff will be employed in some unlawful way, but when one manufactures it for his own lawful use, he has done nothing to disturb the public safety.

The regulations concerning the manufacture of metallic money are of this character of police regulations. It is true, that the sole power of coining money is given by the United States constitution to the national government.2 But except as a restriction upon the power of the States, the constitutional provision was not necessary. It certainly was not needed to authorize the prohibition of the manufacture of metallic money by the individual. For whatever scientific objections may be made to such regulations by sociological writers, it cannot be denied that the free and indiscriminate coinage would lead to the perpetration of many frauds on those who are least able to discover them. For this reason, the government reserves to itself the right to coin money, and punishes severely any counterfeiting of the coins of this and of any other country.1 Not only this; but it is also prohibited to any one to manufacture for distribution, as an advertisement, or for any otherwise lawful purpose, any metallic pieces with shape and impressions so resembling the shape and impressions of money coins, that there is danger that they may be made the means of practicing frauds upon the unwary.2

But in all of these cases it is a judicial question, whether the manufactured article is calculated to prove an instrument of trespass on the rights of others, and the prohibition of its manufacture can only be justified by an affirmative answer to this inquiry. The absolute prohibition of the manufacture of intoxicating liquors can only be justified by proof of the fact that intoxicating liquors cannot be put to some beneficial use. This is conceded to be false by all, whatever may be their other views on legislation in aid of temperance, and most of the present legislation permit its manufacture and sale for medicinal and mechanical purposes. If the position of temperance reformers, that the use of intoxicating liquors as a beverage is a wrong or trespass on society, cannot be successfully assailed, then the constitutionality of a law, which prohibited the manufacture of it except by certain licensed manufacturers, or by the State officers, could not be questioned. Although it would be unreasonable to confine its manufacture to licensed agents of the State, merely for the purpose of preventing the sale to habitual drunkards, lunatics and minors—great as that evil is, the number of such purchasers does not bear comparison with the immense number of those who buy and use it in moderation;—still the constitutionality of the regulation could not be attacked, for the necessity of the legislation is a legislative and not a judicial question.1

[1]See ante, §§ 89, 119-128. To these sections the reader is referred for the full and complete statement of the regulations which are properly discussed under the heading of the present section.

[2]U. S. Const.

[1]See U. S. Rev. Statutes, §§ 5457, 5458. See post, § 227.

[2]See U. S. Rev. Stat., § 5462.

[1]See ante, § 125, for a general discussion of the prohibition of the liquor trade.