CRS Annotated Constitution

Fourteenth Amendment -- Table of Contents

Regulation of Corporations, Business, Professions, and Trades

Corporations.—Although a corporation is the creation of a State, which reserves the power to amend or repeal corporate charters, the retention of such power will not support the taking of corporate property without due process of law. To terminate the life of a corporation by annulling its charter is not to confiscate its property but to turn it over to the stockholders after liquidation.1


Foreign (out–of–state) corporations also enjoy the protection which the due process clause affords, but such protection does not entitle them to the unconditional right to enter another State or, once having been permitted to enter, to continue to do business therein. There is language in the early cases suggesting that the power of a State to exclude or to expel a foreign corporation is almost plenary.2 While modern doctrines of the “negative” commerce clause constrain states’ authority to discriminate against foreign corporations in favor of local commerce, it has always been acknowledged that states may subject corporate entry or continued operation to reasonable, non– discriminatory conditions. Thus, a state law which requires the filing of articles with a local official as a condition prerequisite to the validity of conveyances of local realty to such corporations is not violative of due process.3 Also valid are statutes which require a foreign insurance company, as part of the price of entry, to maintain reserves computed by a specific percentage of premiums, including membership fees, received in all States,4 or to consent to direct actions filed against it by persons injured in the State by tort–feasors whom it insures.5 Similarly a statute requiring corporations to dispose of farm land not necessary to the conduct of their business was not invalid as applied to a foreign hospital corporation, even though the latter, because of changed economic conditions, was unable to recoup its original investment from the sale which it is thus compelled to make.6

Business in General.—“The Constitution does not guarantee the unrestricted privilege to engage in a business or to conduct it as one pleases. Certain kinds of business may be prohibited; and the right to conduct a business, or to pursue a calling, may be conditioned. . . . Statutes prescribing the terms upon which those conducting certain businesses may contract, or imposing terms if they do enter into agreements, are within the State’s competency.”7

Laws Prohibiting Trusts, Discrimination, Restraint of Trade.— Even during the period when the Court was measuring statutes by substantive due process liberty of contract principles, it recognized the right of states to limit liberty of contract by prohibiting combinations in restraint of trade. Thus, states could prohibit[p.1616]agreements to pool and fix prices, divide net earnings, and prevent competition in the purchase and sale of grain.8 Nor, the Court held, does the Fourteenth Amendment preclude a State from adopting a policy against all combinations of competing corporations and enforcing it even against combinations which may have been induced by good intentions and from which benefit and no injury may have resulted.9 Also upheld were a statute that prohibited retail lumber dealers from uniting in an agreement not to purchase materials from wholesalers selling directly to consumers in the retailers’ localities,10 and another law punishing combinations for “maliciously” injuring a rival in the same business, profession, or trade.11

Similarly, a prohibition of unfair discrimination for the purpose of intentionally destroying competition of any other regular dealer in the same commodity by making sales thereof at a lower rate in one section of the State than in another, after equalization for distance, effects no invalid deprivation of property or interference with freedom of contract.12 A law sanctioning contracts requiring that commodities identified by trademark will not be sold by the vendee or subsequent vendees except at prices stipulated by the original vendor does not violate the due process clause.13 Also upheld as not depriving a company of due process was application of an unfair sales act to enjoin a retail grocery company from selling below statutory cost in violation of a state unfair sales act, even though its competitors were selling at unlawful prices. There is no constitutional right to employ retaliation against action outlawed by a State, and appellant had available a remedy whereby it could enjoin illegal activity of its competitors.14

Laws Preventing Fraud in Sale of Goods and Securities.—Laws and ordinances tending to prevent frauds and requiring honest weights and measures in the sale of articles of general consumption have long been considered lawful exertions of the po[p.1617]lice power.15 Thus, a prohibition on the issuance or sale by other than an authorized weigher of any weight certificate for grain weighed at any warehouse or elevator where state weighers are stationed is not unconstitutional.16 Nor is a municipal ordinance requiring that commodities sold in load lots by weight be weighed by a public weighmaster within the city invalid as applied to one delivering coal from state–tested scales at a mine outside the city.17 A statute requiring merchants to record sales in bulk not made in the regular course of business is also within the police power.18

Similarly, the power of a State to prescribe standard containers to protect buyers from deception as well as to facilitate trading and to preserve the condition of the merchandise is not open to question. Accordingly, an administrative order issued pursuant to an authorizing statute and prescribing the dimensions, form, and capacity of containers for strawberries and raspberries is not arbitrary inasmuch as the form and dimensions bore a reasonable relation to the protection of the buyers and the preservation in transit of the fruit.19 Similarly, an ordinance fixing standard sizes is not unconstitutional.20 Regulations issued in furtherance of a statutory authorization which imposed a rate of tolerance for the minimum weight for a loaf of bread were upheld.21 Likewise, a law requiring that lard not sold in bulk should be put up in containers holding one, three, or five pounds weight, or some whole multiple of these numbers, does not deprive sellers of their property without due process of law.22

The right of a manufacturer to maintain secrecy as to his compounds and processes must be held subject to the right of the State, in the exercise of the police power and in the promotion of fair dealing, to require that the nature of the product be fairly set forth.23


A statute providing that the purchaser of harvesting or threshing machinery for his own use shall have a reasonable time after delivery for inspecting and testing it, and permitting recission of the contract if the machinery does not prove reasonably adequate, and further declaring any agreement contrary to its provisions to be against public policy and void, does not violate the due process clause.24 A prohibitive license fee upon the use of trading stamps is not unconstitutional.25

In the exercise of its power to prevent fraud and imposition, a State may regulate trading in securities within its borders, require a license of those engaging in such dealing, make issuance of a license dependent on a public officer’s being satisfied of the good repute of the applicants, and permit the officer, subject to judicial review of his findings, to revoke the license.26 A State may forbid the giving of options to sell or buy at a future time any grain or other commodity.27 It may also forbid sales on margin for future delivery,28 and may prohibit the keeping of places where stocks, grain, and the like, are sold but not paid for at the time, unless a record of the same be made and a stamp tax paid.29 Making criminal any deduction by the purchaser from the actual weight of grain, hay, seed, or coal under a claim of right by reason of any custom or rule of a board of trade is valid exercise of the police power and does not deprive the purchaser of his property without due process of law nor interfere with his liberty of contract.30

Banking, Wage Assignments and Garnishment.—Regulation of banks and banking has always been considered well within the police power of states, and the Fourteenth Amendment did not eliminate this regulatory authority. A variety of regulations has been upheld over the years. For example, state banks are not deprived of property without due process by a statute subjecting them to assessments for a depositors’ guaranty fund.31 Also, a law requiring savings banks to turn over to the State deposits inactive for thirty years (when the depositor cannot be found), with provision for payment to the depositor or his heirs on establishment of[p.1619]the right, does not effect an invalid taking of the property of said banks; nor does a statute requiring banks to turn over to the protective custody of the State deposits that have been inactive ten or twenty–five years (depending on the nature of the deposit).32

The constitutional rights of creditors in an insolvent bank in the hands of liquidators are not violated by a later statute permitting re–opening under a reorganization plan approved by the court, the liquidating officer, and by three–fourths of the creditors.33 Similarly, a Federal Reserve bank is not unlawfully deprived of business rights of liberty of contract by a law which allows state banks to pay checks in exchange when presented by or through a Federal Reserve bank, post office, or express company and when not made payable otherwise by a maker.34

In fixing maximum rates of interest on money loaned within its borders, a State is acting clearly within its police power; and the details are within legislative discretion if not unreasonably or arbitrarily exercised.35 Equally valid as an exercise of a State’s police power is a requirement that assignments of future wages as security for debts of less than $200, to be valid, must be accepted in writing by the employer, consented to by the assignors, and filed in public office. Such a requirement deprives neither the borrower nor the lender of his property without due process of law.36

Insurance.—The general relations of those engaged in the insurance business37 as well as the business itself have been peculiarly subject to supervision and control.38 Even during the Lochner era the Court recognized that government may fix insurance rates and regulate the compensation of insurance agents,39 and over the years the Court has upheld a wide variety of regulation. A state may impose a fine on “any person ‘who shall act in any manner in the negotiation or transaction of unlawful insurance[p.1620]. . . with a foreign insurance company not admitted to do business [within said State].”’40 A state may forbid life insurance companies and their agents to engage in the undertaking business and undertakers to serve as life insurance agents.41 Foreign casualty and surety insurers were not deprived of due process, the Court held, by a Virginia law which prohibited the making of contracts of casualty or surety insurance except through registered agents, which required that such contracts applicable to persons or property in the State be countersigned by a registered local agent, and which prohibited such agents from sharing more than 50% of a commission with a nonresident broker.42 And just as all banks may be required to contribute to a depositors’ guaranty fund, so may all automobile liability insurers be required to submit to the equitable apportionment among them of applicants who are in good faith entitled to, but are financially unable to, procure such insurance through ordinary methods.43

However, a statute which prohibited the insured from contracting directly with a marine insurance company outside the State for coverage of property within the State was held invalid as a deprivation of liberty without due process of law.44 For the same reason, the Court held, a State may not prevent a citizen from concluding a policy loan agreement with a foreign life insurance company at its home office whereby the policy on his life is pledged as collateral security for a cash loan to become due upon default in payment of premiums, in which case the entire policy reserve might be applied to discharge the indebtedness. Authority to subject such an agreement to the conflicting provisions of domestic law is not deducible from the power of a State to license a foreign insurance company as a condition of its doing business therein.45

A stipulation that policies of hail insurance shall take effect and become binding twenty–four hours after the hour in which an application is taken and further requiring notice by telegram of rejection of an application was upheld.46 No unconstitutional restraint was imposed upon the liberty of contract of surety companies by a statute providing that, after enactment, any bond exe[p.1621]cuted for the faithful performance of a building contract shall inure to the benefit of materialmen and laborers, notwithstanding any provision of the bond to the contrary.47 Likewise constitutional was a law requiring that a motor vehicle liability policy shall provide that bankruptcy of the insured does not release the insurer from liability to an injured person.48

There also is no denial of due process for a state to require that casualty companies, in case of total loss, pay the total amount for which the property was insured, less depreciation between the time of issuing the policy and the time of the loss, rather than the actual cash value of the property at the time of loss.49

Moreover, even though it had its attorney–in–fact located in Illinois, signed all its contracts there, and forwarded therefrom all checks in payment of losses, a reciprocal insurance association covering real property located in New York could be compelled to comply with New York regulations which required maintenance of an office in that State and the countersigning of policies by an agent resident therein.50 Also, to discourage monopolies and to encourage rate competition, a State constitutionally may impose on all fire insurance companies connected with a tariff association fixing rates a liability or penalty to be collected by the insured of 25% in excess of actual loss or damage, stipulations in the insurance contract to the contrary notwithstanding.51

A state statute by which a life insurance company, if it fails to pay upon demand the amount due under a policy after death of the insured, is made liable in addition for fixed damages, reasonable in amount, and for a reasonable attorney’s fee is not unconstitutional even though payment is resisted in good faith and upon reasonable grounds.52 It is also proper by law to cut off a defense by a life insurance company based on false and fraudulent statements in the application, unless the matter misrepresented actually contributed to the death of the insured.53 A provision that suicide, unless contemplated when the application for a policy was made, shall be no defense is equally valid.54 When a cooperative life insurance association is reorganized so as to permit it to do a life insurance business of every kind, policyholders are not deprived[p.1622]of their property without due process of law.55 Similarly, when the method of liquidation provided by a plan of rehabilitation of a mutual life insurance company is as favorable to dissenting policyholders as would have been the sale of assets and pro rata distribution to all creditors, the dissenters are unable to show any taking without due process. Dissenting policyholders have no constitutional right to a particular form of remedy.56

Miscellaneous Businesses and Professions.—An act imposing license fees for operating employment agencies and prohibiting them from sending applicants to an employer who has not applied for labor does not deny due process of law.57 Also, a state law prohibiting operation of a “debt pooling” or a “debt adjustment” business except as an incident to the legitimate practice of law is a valid exercise of legislative discretion.58

The Court has sustained a law establishing as a qualification for obtaining or retaining a pharmacy operating permit that one either be a registered pharmacist in good standing or that the corporation or association have a majority of its stock owned by registered pharmacists in good standing who were actively and regularly employed in and responsible for the management, supervision, and operation of such pharmacy.59 The Court also upheld a state law forbidding (1) solicitation of the sale of frames, mountings, or other optical appliances, (2) solicitation of the sale of eyeglasses, lenses, or prisms by use of advertising media, (3) retailers from leasing, or otherwise permitting anyone purporting to do eye examinations or visual care to occupy space in a retail store, and (4) anyone, such as an optician, to fit lenses, or replace lenses or other optical appliances, except upon written prescription of an optometrist or opthalmologist licensed in the State is not invalid. A State may treat all who deal with the human eye as members of a profession that should refrain from merchandising methods to ob[p.1623]tain customers, and that should choose locations that reduce the temptations of commercialism; a state may also conclude that eye examinations are so critical that every change in frame and duplication of a lens should be accompanied by a prescription.60

The practice of medicine, using this word in its most general sense, has long been the subject of regulation.61 A State may exclude osteopathic physicians from hospitals maintained by it or its municipalities,62 may regulate the practice of dentistry by prescribing qualifications that are reasonably necessary, requiring licenses, establishing a supervisory administrative board, and prohibiting certain advertising regardless of its truthfulness.63 But while statutes requiring pilots to be licensed64 and setting reasonable competency standards (e.g., that railroad engineers pass color blindness tests) have been sustained,65 an act making it a misdemeanor for a person to act as a railway passenger conductor without having had two years’ experience as a freight conductor or brakeman was invalidated as not rationally distinguishing between those competent and those not competent to serve as conductor.66

The Court has also upheld a variety of other licensing or regulatory legislation applicable to places of amusement,67 grain elevators,68 detective agencies,69 the sale of cigarettes70 or cosmetics,71 and the resale of theatre tickets.72 Restrictions on advertising have also been upheld, including absolute bans on the advertising of cigarettes,73 or the use of a representation of the United[p.1624]States flag on an advertising medium.74 Similarly constitutional were prohibitions on the solicitation by a layman of the business of collecting and adjusting claims,75 the keeping of private markets within six squares of a public market,76 the keeping of billiard halls except in hotels,77 or the purchase by junk dealers of wire, copper, and other items, without ascertaining the seller’s right to sell.78


Protection of State Resources

Oil and Gas.—To prevent waste, production of oil and gas may be prorated; the prohibition of wasteful conduct, whether primarily in behalf of the owners of oil and gas in a common reservoir or because of the public interests involved, is consistent with the Constitution.79 Thus, the Court upheld against due process challenge a statute which defined waste as including, in addition to its ordinary meaning, economic waste, surface waste, and production in excess of transportation or marketing facilities or reasonable market demands, and which limited each producer’s share to a prorated portion of the total production that can be taken from the common source without waste.80 Whether a system of proration based on hourly potential is as fair as one based upon estimated recoverable reserves or some other combination of factors is a question for administrative and not judicial judgment. In a domain of knowledge still shifting and growing, it has been held to be presumptuous for courts, on the basis of conflicting expert testimony, to invalidate an oil proration order, promulgated by an administrative commission in execution of a regulatory scheme intended to conserve a State’s oil resources.81 On the other hand, where the evidence showed that an order, purporting to limit daily total production of a gas field and to prorate the allowed production among several wells, had for its real purpose, not the prevention of waste nor the undue drainage from the reserves of other well owners, but rather the compelling of pipeline owners to furnish a market to those who had no pipeline connections, the order was held void as[p.1625]a taking of private property for private benefit.82 Also sustained as conservation measures were orders of the Oklahoma Corporation Commission, premised on a finding that existing low field prices for natural gas were resulting in economic and physical waste, fixing a minimum price for gas and requiring one producer to take gas ratably from another producer in the same field at the dictated price.83

Even though carbon black is more valuable than the gas from which it is extracted, and notwithstanding a resulting loss of investment in a plant for the manufacture of carbon black, a State, in the exercise of its police power, may forbid the use of natural gas for products, such as carbon black, in the production of which such gas is burned without fully utilizing for other manufacturing or domestic purposes the heat therein contained.84 Likewise, for the purpose of regulating and adjusting coexisting rights of surface owners to underlying oil and gas, it is within the power of a State to prohibit the operators of wells from allowing natural gas, not conveniently necessary for other purposes, to come to the surface without the lifting power having been utilized to produce the greatest quality of oil in proportion.85

Protection of Property and Agricultural Crops.—An ordinance conditioning the right to drill for oil and gas within the city limits upon the filing of a bond in the sum of $200,000 for each well, to secure payment of damages from injuries to any persons or property resulting from the drilling operation, or maintenance of any well or structure appurtenant thereto, is consistent with due process of law and is not rendered unreasonable by the requirement that the bond be executed, not by personal sureties, but by a bonding company authorized to do business in the State.86 On the other hand, a Pennsylvania statute, which forbade the mining of coal under private dwellings or streets of cities by a grantor that had reserved the right to mine, was viewed as restricting the use of private property too much and hence as a denial of due process and a “taking” without compensation.87 Years later, however, a quite similar Pennsylvania statute was upheld, the Court finding that the new law no longer involved merely a balancing of private[p.1626]economic interests, but instead promoted such “important public interests” as conservation, protection of water supplies, and preservation of land values for taxation.88 Also distinguished from Pennsylvania Coal was a challenge to an ordinance prohibiting sand and gravel excavation near the water table and imposing a duty to refill any existing excavation below that level. The ordinance was upheld; the fact that it prohibited a business that had been conducted for over 30 years did not give rise to a taking in the absence of proof that the land could not be used for other legitimate purposes.89

A statute requiring the destruction of cedar trees within two miles of apple orchards in order to prevent damage to the orchards caused by cedar rust was upheld as not unreasonable even in the absence of compensation. Apple growing being one of the principal agricultural pursuits in Virginia and the value of cedar trees throughout the State being small as compared with that of apple orchards, the State was constitutionally competent to require the destruction of one class of property in order to save another which, in the judgment of its legislature, was of greater value to the public.90 Similarly, Florida was held to possess constitutional authority to protect the reputation of one of its major industries by penalizing the delivery for shipment in interstate commerce of citrus fruits so immature as to be unfit for consumption.91

Water.—A statute making it unlawful for a riparian owner to divert water into another State was held not to deprive the owner of property without due process of law. “The constitutional power of the State to insist that its natural advantages shall remain unimpaired by its citizens is not dependent upon any nice estimate of the extent of present use or speculation as to future needs. . . . What it has it may keep and give no one a reason for its will.”92 This holding has since been disapproved, but on interstate commerce rather than due process grounds.93 States may, however, enact and enforce a variety of conservation measures for the protection of watersheds.94

The Court’s early decisions rested on the legal fiction that states owned the fish and wild game within their borders, hence could reserve these possessions solely for use by their own citizens. The Court soon backed away from the ownership fiction,99 and in Hughes v. Oklahoma100 overruled Geer v. Connecticut, indicating instead that state conservation measures discriminating against out–of–state persons were to be measured under the commerce clause. Although a state’s “concerns for conservation and protection of wild animals” were still a “legitimate” basis for regulation, these concerns could not justify disproportionate burdens on interstate commerce.101 More recently still, in the context of recreational rather than commercial activity, the Court reached a result more deferential to state authority, holding that access to recreational big game hunting is not within the category of rights protected by the Privileges and Immunitites Clause, and that consequently a state could without differential cost justification charge out–of–staters significantly more than in–staters for a hunting license.102 Suffice it to say that similar cases involving a state’s efforts to reserve its fish and game for its own inhabitants are likely to be[p.1628]challenged under commerce or privileges and immunities principles, rather than under substantive due process.


Ownership of Real Property: Limitations, Rights

Zoning and Similar Actions.—That states and municipal subdivisions may zone land for designated uses is now a well established aspect of the police power. Zoning authority gained judicial recognition early in the 20th century. Initially, analogy was drawn to public nuisance law, the Court recognizing that States and their municipal subdivisions may declare that in particular circumstances and in particular localities specific businesses, which are not nuisances per se, are to be deemed nuisances in fact and in law.103 Thus, a State may declare the emission of dense smoke in populous areas a nuisance and restrain it; regulations to that effect are not invalid even though they affect the use of property or subject the owner to the expense of complying with their terms.104 So too, the Court upheld an ordinance that prohibited brickmaking in a designated area, even though the land contained valuable clay deposits which could not profitably be removed for processing elsewhere, was far more valuable for brickmaking than for any other purpose, had been acquired before it was annexed to the municipality, and had long been used as a brickyard.105

With increasing urbanization and consequent broadening of the philosophy of regulation of land use to protect not only health and safety but also the amenities of modern living,106 the Court has recognized the discretion of government, within the loose confines of the due process clause, to zone in many ways and for many purposes. The Court will uphold a challengened land–use plan unless it determines that the plan is clearly arbitrary and unreasonable and has no substantial relation to the public health, safety, or general welfare,107 or unless the plan as applied amounts to a tak[p.1629]ing of property without just compensation.108 Applying these principles, the Court has held that the creation of a residential district in a village and the exclusion therefrom of apartment houses, retail stores, and billboards is a permissible exercise of municipal power.109 So too, a municipality restricting housing in a community to one–family dwellings, in which any number of persons related by blood, adoption, or marriage could occupy a house but only two unrelated persons could do so, was sustained in the absence of any showing that it was aimed at the deprivation of a “fundamental interest.”110 Such a fundamental interest was found impaired by a zoning ordinance in Moore v. City of East Cleveland,111 which restricted housing occupancy to a single family but so defined “family” that a grandmother who had been living with her two grandsons of different children was in violation of the ordinance. Similarly, black persons cannot be forbidden to occupy houses in blocks where the greater number of houses are occupied by white persons, or vice versa.112 But aside from such basic constraints, a wide range of regulation is permissible. Government may regulate the height of buildings113 and establish building setback requirements.114 The preservation of open spaces, through density controls and restrictions on the numbers of houses,115 and the preservation of historic structures116 are also permissible utilizations of the zoning power.

In one aspect of zoning—the degree to which such decisions may be delegated to private persons—the Court has not attained consistency. Thus, it invalidated a city ordinance which conferred the power to establish building setback lines upon the owners of two thirds of the property abutting any street,117 and, subsequently, it struck down an ordinance which permitted the establishment of philanthropic homes for the aged in residential areas but only upon the written consent of the owners of two–thirds of[p.1630]the property within 400 feet of the proposed facility.118 In a decision falling chronologically between these two, it sustained an ordinance which permitted property owners to waive a municipal restriction prohibiting the construction of billboards.119 In its most recent decision, upholding a city charter provision permitting the petitioning to citywide referendum of zoning changes and variances by the city planning commission and necessitating a 55% approval vote in the referendum to sustain the commission’s decision, the Court distinguished between delegating to a small group of affected landowners such a decision relating to other people and the people’s retention of the ultimate legislative power in themselves which for convenience they had delegated to a legislative body.120 The zoning power may not be delegated to a church, the Court invalidating under the Establishment Clause a state law permitting any church to block issuance of a liquor license for a facility to be operated within 500 feet of the church.121

Estates, Succession, Abandoned Property.—The Court upheld a New York Decedent Estate Law that granted to a surviving spouse a right of election to take as in intestacy, as applied to a widow who, before enactment of the law, had waived any right to her husband’s estate. Impairment of the widow’s waiver by subsequent legislation did not deprive the husband’s estate of property without due process of law. Because rights of succession to property are of statutory creation, the Court explained, New York could have conditioned any further exercise of testamentary power upon the giving of right of election to the surviving spouse regardless of any waiver however formally executed.122

Even after the creation of a testamentary trust, a State retains the power to devise new and reasonable directions to the trustee to meet new conditions arising during its administration, especially such as the Depression presented to trusts containing mortgages. Accordingly, no constitutional right is violated by the retroactive application to an estate on which administration had already begun of a statute which had the effect of taking away a remainderman’s right to judicial examination of the trustee’s computation of income. Under the peculiar facts of the case, however, the remainderman’s[p.1631]right had been created by judicial rules promulgated after the death of the decedent, so the case is not precedent for a broad rule of retroactivity.123

States have several jurisdictional bases for application of escheat and abandoned property laws to out–of–state corporations. Application of New York’s Abandoned Property Law to insurance policies on the lives of New York residents issued by foreign corporations did not deprive such companies of property without due process, where the insured persons had continued to be New York residents and the beneficiaries were resident at the maturity date of the policies. The relationship between New York and its residents who abandon claims against foreign insurance companies, and between New York and foreign insurance companies doing business therein, is sufficiently close to give New York jurisdiction.124 In Standard Oil Co. v. New Jersey,125 a divided Court held that due process is not violated by a statute escheating to the State shares of stock in a domestic corporation and unpaid dividends declared thereon, even though the last known owners were nonresidents and the stock was issued and the dividends were held in another State. The State’s power over the debtor corporation gives it power to seize the debts or demands represented by the stock and dividends.

The large discretion the States possess to define abandoned property and to provide for its disposition is revealed in Texaco v. Short.126 There upheld was an Indiana statute which terminated interests in coal, oil, gas, or other minerals which have not been used for twenty years and which provided for reversion to the owner of the interest out of which the mining interests had been carved. With respect to interests existing at the time of enactment, the statute provided a two–year grace period in which owners of mineral interests that were then unused and subject to lapse could preserve those interests by filing a claim in the recorder’s office. The “use” of a mineral interest which could prevent its extinction included the actual or attempted extraction of minerals, the payment of rents or royalties, and any payment of taxes. Merely filing a claim with the local recorder would preserve the interest. The statute provided no notice, save for its own publication, to owners[p.1632]of interests, nor did it require surface owners to notify owners of mineral interests that the interests were about to expire. By a narrow margin, the Court sustained the statute, holding that the State’s interest in encouraging production, securing timely notices of property ownership, and settling property titles provided a basis for enactment, and finding that due process did not require any actual notice to holders of unused mineral interests. Property owners are charged with maintaining knowledge of the legal conditions of property ownership. The act provided a grace period and specified several actions which were sufficient to avoid extinguishment. The State “may impose on an owner of a mineral interest the burden of using that interest or filing a current statement of interests” and it may similarly “impose on him the lesser burden of keeping informed of the use or nonuse of his own property.”127


Health, Safety, and Morals

Even under the narrowest concept of the police power as limited by substantive due process, it was generally conceded that states could exercise the power to protect the public health, safety, and morals.128 Illustrative cases are noted below.

Safety Regulations.—A variety of measures designed to reduce fire hazards have been upheld. These include municipal ordinances that prohibit the storage of gasoline within 300 feet of any dwelling,129 or require that all tanks with a capacity of more than ten gallons, used for the storage of gasoline, be buried at least three feet under ground,130 or which prohibit washing and ironing in public laundries and wash houses, within defined territorial limits from 10 p.m. to 6 a.m.131 Equally sanctioned by the Fourteenth Amendment is the demolition and removal by cities of wooden buildings erected within defined fire limits contrary to regulations in force at the time.132 Construction of property in full compliance with existing laws, however, does not confer upon the owner an immunity against exercise of the police power. Thus, a 1944 amendment to a Multiple Dwelling Law, requiring installation of automatic sprinklers in lodginghouses of non– fireproof construction erected prior to said enactment, does not, as applied to a lodginghouse constructed in 1940 in conformity with all laws then[p.1633]applicable, deprive the owner of due process, even though compliance entails an expenditure of $7,500 on a property worth only $25,000.133

Sanitation.—An ordinance for incineration of garbage and refuse at a designated place as a means of protecting public health is not taking of private property without just compensation even though such garbage and refuse may have some elements of value for certain purposes.134 Compelling property owners to connect with a publicly maintained system of sewers and enforcing that duty by criminal penalties does not violate the due process clause.135

Food, Drugs, Milk.—“The power of the State to . . . prevent the production within its borders of impure foods, unfit for use, and such articles as would spread disease and pestilence, is well established.”136 Statutes forbidding or regulating the manufacture of oleomargarine have been upheld as a valid exercise of such power.137 For the same reasons, statutes ordering the destruction of unsafe and unwholesome food,138 and prohibiting the sale and authorizing confiscation of impure milk139 have been sustained, notwithstanding that such articles had a value for purposes other than food. There also can be no question of the authority of the State, in the interest of public health and welfare, to forbid the sale of drugs by itinerant vendors140 or the sale of spectacles by an establishment not in charge of a physician or optometrist.141 Nor is it any longer possible to doubt the validity of state regulations pertaining to the administration, sale, prescription, and use of dangerous and habit– forming drugs.142

Equally valid as police power regulations are laws forbidding the sale of ice cream not containing a reasonable proportion of butter fat143 or of condensed milk made from skimmed milk rather than whole milk144 or of food preservatives containing boric acid.145 Similarly, a statute which prohibits the sale of milk to which has been added any fat or oil other than a milk fat, and[p.1634]which has, as one of its purposes, the prevention of fraud and deception in the sale of milk products, does not, when applied to “filled milk” having the taste, consistency, and appearance of whole milk products, violate the due process clause. Filled milk is inferior to whole milk in its nutritional content and cannot be served to children as a substitute for whole milk without producing a dietary deficiency.146 However, a statute forbidding the sale of bedding made with shoddy, even when sterilized and therefore harmless to health, was held to be arbitrary and therefore invalid.147

Intoxicating Liquor.—“[O]n account of their well–known noxious qualities and the extraordinary evils shown by experience to be consequent upon their use, a State . . . [is competent] to prohibit [absolutely the] manufacture, gift, purchase, sale, or transportation of intoxicating liquors within its borders. . . .”148 And to implement such prohibition, a State has the power to declare that places where liquor is manufactured or kept shall be deemed common nuisances,149 and even to subject an innocent owner to the forfeiture of his property for the acts of a wrongdoer.150

Regulation of Motor Vehicles and Carriers.—The highways of a State are public property, the primary and preferred use of which is for private purposes; their uses for purposes of gain may generally be prohibited by the legislature or conditioned as it sees fit.151 In limiting the use of its highways for intrastate transportation for hire, a State reasonably may provide that carriers who have furnished adequate, responsible, and continuous service over a given route from a specified data in the past shall be entitled to licenses as a matter of right but that the licensing of those whose service over the route began later than the date specified shall depend upon public convenience and necessity.152 To require private contract carriers for hire to obtain a certificate of convenience and necessity, which is not granted if the service of common carriers is impaired thereby, and to fix minimum rates applicable thereto, which are not less than those prescribed for common carriers, is valid as a means of conserving highways,153 but any attempt to[p.1635]convert private carriers into common carriers,154 or to subject them to the burdens and regulations of common carriers, without expressly declaring them to be common carriers, is violative of due process.155 In the absence of legislation by Congress, a State may, in protection of the public safety, deny an interstate motor carrier the use of an already congested highway.156

In exercising its authority over its highways, on the other hand, a State is not limited merely to the raising of revenue for maintenance and reconstruction or to regulating the manner in which vehicles shall be operated, but may also prevent the wear and hazards due to excessive size of vehicles and weight of load. Accordingly, a statute limiting to 7,000 pounds the net load permissible for trucks is not unreasonable.157 No less constitutional is a municipal traffic regulation which forbids the operation in the streets of any advertising vehicle, excepting vehicles displaying business notices or advertisements of the products of the owner and not used mainly for advertising; and such regulation may be validly enforced to prevent an express company from selling advertising space on the outside of its trucks. Inasmuch as it is the judgment of local authorities that such advertising affects public safety by distracting drivers and pedestrians, courts are unable to hold otherwise in the absence of evidence refuting that conclusion.158

Any appropriate means adopted to insure compliance and care on the part of licensees and to protect other highway users being consonant with due process, a State may also provide that a driver who fails to pay a judgment for negligent operation shall have his license and registration suspended for three years, unless, in the meantime, the judgment is satisfied or discharged.159 Compulsory automobile insurance is so plainly valid as to present no federal constitutional question.160


Protecting Morality.—Unless effecting a clear, unmistakable infringement of rights secured by fundamental law, legislation suppressing prostitution161 or gambling will be upheld by the Court as concededly within the police power of a State.162 Accordingly, a state statute may provide that, in the event a judgment is obtained against a party winning money, a lien may be had on the property of the owner of the building where the gambling transaction was conducted when the owner knowingly consented to the gambling.163

Supplement: [P. 1636, add to text following n.163:]

Similarly, a court may order a car used in an act of prostitution forfeited as a public nuisance, even if this works a deprivation on an innocent joint owner of the car.4

For the same reason, lotteries, including those operated under a legislative grant, may be forbidden, irrespective of any particular equities.164


Vested Rights, Remedial Rights, Political Candidacy

Inasmuch as the Due Process Clause protects against arbitrary deprivation of “property,” privileges not constituting property are not entitled to protection.165 Because an existing right of action to recover damages for an injury is property, that right of action is protected by the clause.166 Thus, the retroactive repeal of a provision which made directors liable for moneys embezzled by corporate officers, by preventing enforcement of a liability which already had arisen, deprived certain creditors of their property without due process of law.167 But while a vested cause of action is property, a person has no constitutionally protected property interest in any particular form of remedy and is guaranteed only the preservation of a substantial right to redress by any effective procedure.168 Accordingly, a statute creating an additional remedy for enforcing stockholders’ liability is not, as applied to stockholders then holding stock, violative of due process.169 Nor is a law which lifts a statute of limitations and makes possible a suit, theretofore barred,[p.1637]for the value of certain securities. “The Fourteenth Amendment does not make an act of state legislation void merely because it has some retrospective operation. . . . Some rules of law probably could not be changed retroactively without hardship and oppression . . . . Assuming that statutes of limitation, like other types of legislation, could be so manipulated that their retroactive effects would offend the constitution, certainly it cannot be said that lifting the bar of a statute of limitation so as to restore a remedy lost through mere lapse of time is per se an offense against the Fourteenth Amendment.”170


Control of Local Units of Government

The Fourteenth Amendment does not deprive a State of the power to determine what duties may be performed by local officers, and whether they shall be appointed or popularly elected.171 Thus, a statute requiring cities to indemnify owners of property damaged by mobs or during riots effects no unconstitutional deprivation of the property even in circumstances when the city could not have prevented the violence.172 Likewise, a person obtaining a judgment against a municipality for damages resulting from a riot is not deprived of property without due process of law by an act which so limits the municipality’s taxing power as to prevent collection of funds adequate to pay it. As long as the judgment continues as an existing liability no unconstitutional deprivation is experienced.173

Local units of government obliged to surrender property to other units newly created out of the territory of the former cannot successfully invoke the due process clause,174 nor may taxpayers allege any unconstitutional deprivation as a result of changes in their tax burden attendant upon the consolidation of contiguous municipalities.175 Nor is a statute requiring counties to reimburse cities of the first class but not other classes for rebates allowed for prompt payment of taxes in conflict with the due process clause.176


1 New Orleans Debenture Redemption Co. v. Louisiana, 180 U.S. 320 (1901) .
2 National Council U.A.M. v. State Council, 203 U.S. 151, 162– 63 (1906).
3 Munday v. Wisconsin Trust Co., 252 U.S. 499 (1920) .
4 State Farm Ins. Co. v. Duel, 324 U.S. 154 (1945) .
5 Watson v. Employers Liability Assurance Corp., 348 U.S. 66 (1954) .
6 Asbury Hospital v. Cass County, 326 U.S. 207 (1945) .
7 Nebbia v. New York, 291 U.S. 502, 527–28 (1934) . See also New Motor Vehicle Bd. v. Orrin W. Fox Co., 439 U.S. 96, 106–08 (1978) (upholding regulation of franchise relationship).
8 Smiley v. Kansas, 196 U.S. 447 (1905) . See Waters Pierce Oil Co. v. Texas, 212 U.S. 86 (1909) ; National Cotton Oil Co. v. Texas, 197 U.S. 115 (1905) , also upholding antitrust laws.
9 International Harvester Co. v. Missouri, 234 U.S. 199 (1914) . See also American Machine Co. v. Kentucky, 236 U.S. 660 (1915) .
10 Grenada Lumber Co. v. Mississippi, 217 U.S. 433 (1910) .
11 Aikens v. Wisconsin, 195 U.S. 194 (1904) .
12 Central Lumber Co. v. South Dakota, 226 U.S. 157 (1912) . But cf. Fairmont Co. v. Minnesota, 274 U.S. 1 (1927) (invalidating on liberty of contract grounds similar statute punishing dealers in cream who pay higher prices in one locality than in another, the Court finding no reasonable relation between the statute’s sanctions and the anticipated evil).
13 Old Dearborn Co. v. Seagram Corp., 299 U.S. 183 (1936) ; Pep Boys v. Pyroil, 299 U.S. 198 (1936) .
14 Safeway Stores v. Oklahoma Grocers, 360 U.S. 334 (1959) .
15 Schmidinger v. City of Chicago, 226 U.S. 578, 588 (1913) (citing McLean v. Arkansas, 211 U.S. 539, 550 (1909) ).
16 Merchants Exchange v. Missouri, 248 U.S. 365 (1919) .
17 Hauge v. City of Chicago, 299 U.S. 387 (1937) .
18 Lemieux v. Young, 211 U.S. 489 (1909) ; Kidd, Dater Co. v. Musselman Grocer Co., 217 U.S. 461 (1910) .
19 Pacific States Co. v. White, 296 U.S. 176 (1935) .
20 Schmidinger v. City of Chicago, 226 U.S. 578 (1913) .
21 Petersen Baking Co. v. Bryan, 290 U.S. 570 (1934) (tolerances not to exceed three ounces to a pound of bread and requiring that the bread maintain the statutory minimum weight for not less than 12 hours after cooling). But cf. Burns Baking Co. v. Bryan, 264 U.S. 504 (1924) (tolerance of only two ounces in excess of the minimum weight per loaf is unreasonable, given finding that it was impossible to manufacture good bread without frequently exceeding the prescribed tolerance).
22 Armor & Co. v. North Dakota, 240 U.S. 510 (1916) .
23 Heath & Milligan Co. v. Worst, 207 U.S. 338 (1907) ; Corn Products Ref. Co. v. Eddy, 249 U.S. 427 (1919) ; National Fertilizer Ass’n v. Bradley, 301 U.S. 178 (1937) .
24 Advance–Rumely Co. v. Jackson, 287 U.S. 283 (1932) .
25 Rast v. Van Deman & Lewis, 240 U.S. 342 (1916) ; Tanner v. Little, 240 U.S. 369 (1916) ; Pitney v. Washington, 240 U.S. 387 (1916) .
26 Hall v. Geiger–Jones Co., 242 U.S. 539 (1917) ; Caldwell v. Sioux Falls Stock Yards Co., 242 U.S. 559 (1917) ; Merrick v. Halsey & Co., 242 U.S. 568 (1917) .
27 Booth v. Illinois, 184 U.S. 425 (1902) .
28 Otis v. Parker, 187 U.S. 606 (1903) .
29 Brodnax v. Missouri, 219 U.S. 285 (1911) .
30 House v. Mayes, 219 U.S. 270 (1911) .
31 Noble State Bank v. Haskell, 219 U.S. 104 (1911) ; Shallenberger v. First State Bank, 219 U.S. 114 (1911) ; Assaria State Bank v. Dolley, 219 U.S. 121 (1911) ; Abie State Bank v. Bryan, 282 U.S. 765 (1931) .
32 Provident Savings Inst. v. Malone, 221 U.S. 660 (1911) ; Anderson Nat’l Bank v. Luckett, 321 U.S. 233 (1944) . When a bank conservator appointed pursuant to a new statute has all the functions of a receiver under the old law, one of which is the enforcement on behalf of depositors of stockholders’ liability, which liability the conservator can enforce as cheaply as could a receiver appointed under the pre–existing statute, it cannot be said that the new statute, in suspending the right of a depositor to have a receiver appointed, arbitrarily deprives a depositor of his remedy or destroys his property without the due process of law. The depositor has no property right in any particular form of remedy. Gibbes v. Zimmerman, 290 U.S. 326 (1933) .
33 Doty v. Love, 295 U.S. 64 (1935) .
34 Farmers Bank v. Federal Reserve Bank, 262 U.S. 649 (1923) .
35 Griffith v. Connecticut, 218 U.S. 563 (1910) .
36 Mutual Loan Co. v. Martell, 222 U.S. 225 (1911) .
37 La Tourette v. McMaster, 248 U.S. 465 (1919) ; Stipich v. Insurance Co., 277 U.S. 311, 320 (1928) .
38 German Alliance Ins. Co. v. Kansas, 233 U.S. 389 (1914) .
39 O’Gorman & Young v. Hartford Ins. Co., 282 U.S. 251 (1931) .
40 Nutting v. Massachusetts, 183 U.S. 553, 556 (1902) (distinguishing Allgeyer v. Louisiana, 165 U.S. 578 (1897) ). See also Hoper v. California, 155 U.S. 648 (1895) .
41 Daniel v. Family Ins. Co., 336 U.S. 220 (1949) .
42 Osborn v. Ozlin, 310 U.S. 53, 68–69 (1940) . Dissenting from the conclusion, Justice Roberts declared that the plain effect of the Virginia law is to compel a nonresident to pay a Virginia resident for services which the latter does not in fact render.
43 California Auto. Ass’n v. Maloney, 341 U.S. 105 (1951) .
44 Allgeyer v. Louisiana, 165 U.S. 578 (1897) .
45 New York Life Ins. Co. v. Dodge, 246 U.S. 357 (1918) .
46 National Ins. Co. v. Wanberg, 260 U.S. 71 (1922) .
47 Hartford Accident Co. v. Nelson Co., 291 U.S. 352 (1934) .
48 Merchants Liability Co. v. Smart, 267 U.S. 126 (1925) .
49 Orient Ins. Co. v. Daggs, 172 U.S. 577 (1899) (the statute was in effect when the contract at issue was signed).
50 Hooperston Co. v. Cullen, 318 U.S. 313 (1943) .
51 German Alliance Ins. Co. v. Hale, 219 U.S. 307 (1911) . See also Carroll v. Greenwich Ins. Co., 199 U.S. 401 (1905) .
52 Life & Casualty Co. v. McCray, 291 U.S. 566 (1934) .
53 Northwestern Life Ins. Co. v. Riggs, 203 U.S. 243 (1906) .
54 Whitfield v. Aetna Life Ins. Co., 205 U.S. 489 (1907) .
55 Polk v. Mutual Reserve Fund, 207 U.S. 310 (1907) .
56 Neblett v. Carpenter, 305 U.S. 297 (1938) .
57 Brazee v. Michigan, 241 U.S. 340 (1916) . With four Justices dissenting, the Court in Adams v. Tanner, 244 U.S. 590 (1917) , struck down a state law absolutely prohibiting maintenance of private employment agencies. Commenting on the “constitutional philosophy” thereof in Lincoln Federal Labor Union v. Northwestern Iron & Metal Co., 335 U.S. 525, 535 (1949) , Justice Black stated that Olsen v. Nebraska, 313 U.S. 236 (1941) , “clearly undermined Adams v. Tanner.”
58 Ferguson v. Skrupa, 372 U.S. 726 (1963) .
59 North Dakota State Bd. of Pharmacy v. Snyder’s Drug Stores, 414 U.S. 156 (1973) . In the course of the decision, the Court overruled Liggett Co. v. Baldridge, 278 U.S. 105 (1928) , in which it had voided a law forbidding a corporation to own any drug store, unless all its stockholders were licensed pharmacists, as applied to a foreign corporation, all of whose stockholders were not pharmacists, which sought to extend its business in the State by acquiring and operating therein two additional stores.
60 Williamson v. Lee Optical Co., 348 U.S. 483 (1955) .
61 McNaughton v. Johnson, 242 U.S. 344, 349 (1917) . See also Dent v. West Virginia, 129 U.S. 114 (1889) ; Hawker v. New York, 170 U.S. 189 (1898) ; Reetz v. Michigan, 188 U.S. 505 (1903) ; Watson v. Maryland, 218 U.S. 173 (1910) ; Barsky v. Board of Regents, 347 U.S. 442 (1954) sustaining a New York law authorizing suspension for six months of the license of a physician who had been convicted of crime in any jurisdiction, in this instance, contempt of Congress under 2 U.S.C. Sec. 192 . Three Justices, Black, Douglas, and Frankfurter, dissented.
62 Collins v. Texas, 223 U.S. 288 (1912) ; Hayman v. Galveston, 273 U.S. 414 (1927) .
63 Semler v. Dental Examiners, 294 U.S. 608, 611 (1935) . See also Douglas v. Noble, 261 U.S. 165 (1923) ; Graves v. Minnesota, 272 U.S. 425, 427 (1926) .
64 Olsen v. Smith, 195 U.S. 332 (1904) .
65 Nashville, C. & St. L. R.R. v. Alabama, 128 U.S. 96 (1888) .
66 Smith v. Texas, 233 U.S. 630 (1914) . See DeVeau v. Braisted, 363 U.S. 144, 157–60 (1960) , sustaining New York law barring from office in longshoremen’s union persons convicted of felony and not thereafter pardoned or granted a good conduct certificate from a parole board.
67 Western Turf Ass’n v. Greenberg, 204 U.S. 359 (1907) .
68 W.W. Cargill Co. v. Minnesota, 180 U.S. 452 (1901) .
69 Lehon v. Atlanta, 242 U.S. 53 (1916) .
70 Gundling v. Chicago, 177 U.S. 183, 185 (1900) .
71 Bourjois, Inc. v. Chapman, 301 U.S. 183 (1937) .
72 Weller v. New York, 268 U.S. 319 (1925) .
73 Packer Corp. v. Utah, 285 U.S. 105 (1932) .
74 Halter v. Nebraska, 205 U.S. 34 (1907) .
75 McCloskey v. Tobin, 252 U.S. 107 (1920) .
76 Natal v. Louisiana, 139 U.S. 621 (1891) .
77 Murphy v. California, 225 U.S. 623 (1912) .
78 Rosenthal v. New York, 226 U.S. 260 (1912) .
79 Thompson v. Consolidated Gas Co., 300 U.S. 55, 76–77 (1937) (citing Ohio Oil Co. v. Indiana (No. 1), 177 U.S. 190 (1900) ); Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61 (1911) ; Oklahoma v. Kansas Natural Gas Co., 221 U.S. 229 (1911) .
80 Champlin Ref. Co. v. Corporation Comm’n, 286 U.S. 210 (1932) .
81 Railroad Comm’n v. Rowan & Nichols Oil Co., 310 U.S. 573 (1940) . See also Railroad Comm’n v. Rowan & Nichols Oil Co., 311 U.S. 570 (1941) ; Railroad Comm’n v. Humble Oil & Ref. Co., 311 U.S. 578 (1941) .
82 Thompson v. Consolidated Gas Co., 300 U.S. 55 (1937) .
83 Cities Service Co. v. Peerless Co., 340 U.S. 179 (1950) ; Phillips Petroleum Co. v. Oklahoma, 340 U.S. 190 (1950) .
84 Walls v. Midland Carbon Co., 254 U.S. 300 (1920) . See also Henderson Co. v. Thompson, 300 U.S. 258 (1937) .
85 Bandini Co. v. Superior Court, 284 U.S. 8 (1931) .
86 Gant v. Oklahoma City, 289 U.S. 98 (1933) .
87 Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922) . On the “taking” jurisprudence that has stemmed from this case, see supra, pp. 1382–84.
88 Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470, 488 (1987) . The Court in Pennsylvania Coal had viewed that case as one of “a single private house.” 260U.S. at 413 260U.S. at 413.
89 Goldblatt v. Town of Hempstead, 369 U.S. 590 (1962) .
90 Miller v. Schoene, 276 U.S. 272, 277, 279 (1928) .
91 Sligh v. Kirkwood, 237 U.S. 52 (1915) .
92 Hudson Water Co. v. McCarter, 209 U.S. 349, 356–57 (1908) .
93 Sporhase v. Nebraska ex rel. Douglas, 458 U.S. 941 (1982) . See also City of Altus v. Carr, 255 F. Supp. 828 (W.D. Tex.), aff’d per curiam, 385 U.S. 35 (1966) .
94 See, e.g., Perley v. North Carolina, 249 U.S. 510 (1919) (upholding law requiring the removal of timber refuse from the vicinity of a watershed to prevent the spread of fire and consequent damage to such watershed).[p.1627]
Fish and Game.— A State has sufficient control over fish and wild game found within its boundaries95 that it may regulate or prohibit fishing and hunting.96 For the effective enforcement of such restrictions, a state may also forbid the possession within its borders of special instruments of violations, such as nets, traps, and seines, regardless of the time of acquisition or the protestations of lawful intentions on the part of a particular possessor.97 The Court also upheld a state law, designed to conserve for food fish found within its waters, restricting a commercial reduction plant from accepting more fish than it could process without deterioration, waste, or spoilage, and applying such restriction to fish imported into the State.98
95 Bayside Fish Co. v. Gentry, 297 U.S. 422, 426 (1936) .
96 Manchester v. Massachusetts, 139 U.S. 240 (1891) ; Geer v. Connecticut, 161 U.S. 519 (1896) .
97 Miller v. McLaughlin, 281 U.S. 261, 264 (1930) .
98 Bayside Fish Co. v. Gentry, 297 U.S. 422 (1936) . See also New York ex rel. Silz v. Hesterberg, 211 U.S. 31 (1908) (upholding law proscribing possession during the closed season of game imported from abroad).
99 See, e.g., Foster–Fountain Packing Co. v. Haydel, 278 U.S. 1 (1928) (invalidating Louisiana statute prohibiting transportation outside the state of shrimp taken in state waters, unless the head and shell had first been removed); Toomer v. Witsell, 334 U.S. 385 (1948) (invalidating law discriminating against out–of–state commercial fishermen); Douglas v. Seacoast Products, 431 U.S. 265, 284 (1977) (state could not discriminate in favor of its residents against out–of– state fishermen in federally licensed ships).
100 441 U.S. 322 (1979) (formally overruling Geer).
101 Id. at 336, 338–39.
102 Baldwin v. Montana Fish and Game Comm’n, 436 U.S. 371 (1978) .
103 Reinman v. City of Little Rock, 237 U.S. 171 (1915) (location of a livery stable within a thickly populated city “is well within the range of the power of the state to legislate for the health and general welfare”). See also Fischer v. St. Louis, 194 U.S. 361 (1904) (upholding restriction on location of dairy cow stables); Bacon v. Walker, 204 U.S. 311 (1907) (upholding restriction on grazing of sheep near habitations).
104 Northwestern Laundry v. Des Moines, 239 U.S. 486 (1916) . For a case embracing a rather special set of facts, see Dobbins v. Los Angeles, 195 U.S. 223 (1904) .
105 Hadacheck v. Sebastian, 239 U.S. 394 (1915) .
106 Cf. Developments in the Law–Zoning, 91 L. Rev. 1427 (1978).
107 Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926) ; Zahn v. Board of Pub. Works, 274 U.S. 325 (1927) ; Nectow v. City of Cambridge, 277 U.S. 183 (1928) ; Cusack Co. v. City of Chicago, 242 U.S. 526 (1917) ; St. Louis Poster Adv. Co. v. City of St. Louis, 249 U.S. 269 (1919) .
108 See, e.g., Lucas v. South Carolina Coastal Council, 112 Ct. 2886 (1992), and discussion of the Fifth Amendment’s eminent domain power, supra pp. 1382–95.
109 Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926) .
110 Village of Belle Terre v. Boraas, 416 U.S. 1 (1974) .
111 431 U.S. 494 (1977) . A plurality of the Court struck down the ordinance as a violation of substantive due process, an infringment of family living arrangements which are a protected liberty interest, id. at 498–506, while Justice Stevens concurred on the ground that the ordinance was arbitrary and unreasonable. Id. at 513. Four Justices dissented. Id. at 521, 531, 541.
112 Buchanan v. Warley, 245 U.S. 60 (1917) .
113 Welch v. Swasey, 214 U.S. 91 (1909) .
114 Gorieb v. Fox, 274 U.S. 603 (1927) .
115 Agins v. City of Tiburon, 447 U.S. 255 (1980) .
116 Penn Central Transp. Co. v. City of New York, 438 U.S. 104 (1978) .
117 Eubank v. City of Richmond, 226 U.S. 137 (1912) .
118 Washington ex rel. Seattle Title Trust Co. v. Roberge, 278 U.S. 116 (1928) .
119 Thomas Cusack Co. v. City of Chicago, 242 U.S. 526 (1917) . The Court thought the case different from Eubank, because in that case the ordinance established no rule but gave to decision of a narrow segment of the community the force of law, whereas in Cusack the ordinance barred the erection of any billboards but permitted the prohibition to be modified by the persons most affected. Id. at 531.
120 City of Eastlake v. Forest City Enterprises, 426 U.S. 668 (1976) . Such referenda do, however, raise equal protection problems. See infra, p.1858.
121 Larkin v. Grendel’s Den, 459 U.S. 116 (1982) .
122 Irving Trust Co. v. Day, 314 U.S. 556, 564 (1942) .
123 Demorest v. City Bank Co., 321 U.S. 36, 47–48 (1944) .
124 Connecticut Ins. Co. v. Moore, 333 U.S. 541 (1948) . Justices Jackson and Douglas dissented on the ground that New York was attempting to escheat unclaimed funds not actually or constructively located in New York, and which were the property of beneficiaries who may never have been citizens or residents of New York.
125 341 U.S. 428 (1951) .
126 454 U.S. 516 (1982) .
127 Id. at 538. The four dissenters thought that some specific notice was required for persons holding before enactment. Id. at 540.
128 See, e.g., Mugler v. Kansas, 123 U.S. 623, 661 (1887) , and discussion supra p.1575.
129 Pierce Oil Corp. v. Hope, 248 U.S. 498 (1919) .
130 Standard Oil Co. v. Marysville, 279 U.S. 582 (1929) .
131 Barbier v. Connolly, 113 U.S. 27 (1885) ; Soon Hing v. Crowley, 113 U.S. 703 (1885) .
132 Maguire v. Reardon, 225 U.S. 271 (1921) .
133 Queenside Hills Co. v. Saxl, 328 U.S. 80 (1946) .
134 California Reduction Co. v. Sanitary Works, 199 U.S. 306 (1905) .
135 Hutchinson v. City of Valdosta, 227 U.S. 303 (1913) .
136 Sligh v. Kirkwood, 237 U.S. 52, 59–60 (1915) .
137 Powell v. Pennsylvania, 127 U.S. 678 (1888) ; Magnano v. Hamilton, 292 U.S. 40 (1934) .
138 North American Storage Co. v. City of Chicago, 211 U.S. 306 (1908) .
139 Adams v. City of Milwaukee, 228 U.S. 572 (1913) .
140 Baccus v. Louisiana, 232 U.S. 334 (1914) .
141 Roschen v. Ward, 279 U.S. 337 (1929) .
142 Minnesota ex rel. Whipple v. Martinson, 256 U.S. 41, 45 (1921) .
143 Hutchinson Ice Cream Co. v. Iowa, 242 U.S. 153 (1916) .
144 Hebe Co. v. Shaw, 248 U.S. 297 (1919) .
145 Price v. Illinois, 238 U.S. 446 (1915) .
146 Sage Stores Co. v. Kansas, 323 U.S. 32 (1944) .
147 Weaver v. Palmer Bros. Co., 270 U.S. 402 (1926) .
148 Beer Co. v. Massachusetts, 97 U.S. 25, 33 (1878) ; Mugler v. Kansas, 123 U.S. 623 (1887) ; Kidd v. Pearson, 128 U.S. 1 (1888) ; Purity Extract Co. v. Lynch, 226 U.S. 192 (1912) ; Clark Distilling Co. v. Western Md. Ry., 242 U.S. 311 (1917) ; Barbour v. Georgia, 249 U.S. 454 (1919) .
149 Mugler v. Kansas, 123 U.S. 623, 671 (1887) .
150 Hawes v. Georgia, 258 U.S. 1 (1922) ; Van Oster v. Kansas, 272 U.S. 465 (1926) .
151 Stephenson v. Binford, 287 U.S. 251 (1932) .
152 Stanley v. Public Utilities Comm’n, 295 U.S. 76 (1935) .
153 Stephenson v. Binford, 287 U.S. 251 (1932) .
154 Michigan Pub. Utils. Comm’n v. Duke, 266 U.S. 570 (1925) .
155 Frost Trucking v. Railroad Comm’n, 271 U.S. 583 (1926) ; Smith v. Cahoon, 283 U.S. 553 (1931) .
156 Bradley v. Public Utils. Comm’n, 289 U.S. 92 (1933) .
157 Sproles v. Binford, 286 U.S. 374 (1932) .
158 Railway Express Agency v. New York, 336 U.S. 106 (1949) .
159 Reitz v. Mealey, 314 U.S. 33 (1941) ; Kesler v. Department of Pub. Safety, 369 U.S. 153 (1962) . But see Perez v. Campbell, 402 U.S. 637 (1971) . Procedural due process must, of course be observed. Bell v. Burson, 402 U.S. 535 (1971) . A nonresident owner who loans his automobile in another state, by the law of which he is immune from liability for the borrower’s negligence and who was not in the state at the time of the accident, is not subjected to any unconstitutional deprivation by a law thereof, imposing liability on the owner for the negligence of one driving the car with the owner’s permission. Young v. Masci, 289 U.S. 253 (1933) .
160 Ex parte Poresky, 290 U.S. 30 (1933) . See also Packard v. Banton, 264 U.S. 140 (1924) ; Sprout v. South Bend, 277 U.S. 163 (1928) ; Hodge Co. v. Cincinnati, 284 U.S. 335 (1932) ; Continental Baking Co. v. Woodring, 286 U.S. 352 (1932) .
161 L’Hote v. New Orleans, 177 U.S. 587 (1900) .
162 Ah Sin v. Wittman, 198 U.S. 500 (1905) .
163 Marvin v. Trout, 199 U.S. 212 (1905) .
164 Stone v. Mississippi, 101 U.S. 814 (1880) ; Douglas v. Kentucky, 168 U.S. 488 (1897) .
165 See, e.g., Snowden v. Hughes, 321 U.S. 1 (1944) (right to become a candidate for state office is a privilege only, hence an unlawful denial of such right is not a denial of a right of “property”). Cases under the equal protection clause now mandate a different result. See Holt Civic Club v. City of Tuscaloosa, 439 U.S. 60, 75 (1978) (seeming to conflate due process and equal protection standards in political rights cases).
166 Angle v. Chicago, St. Paul, M. & D. Ry., 151 U.S. 1 (1894) .
167 Coombes v. Getz, 285 U.S. 434, 442, 448 (1932) .
168 Gibbes v. Zimmerman, 290 U.S. 326, 332 (1933) . See Duke Power Co. v. Carolina Envtl. Study Group, 438 U.S. 59 (1978) (limitation of common–law liability of private industry nuclear accidents in order to encourage development of energy a rational action, especially when combined with congressional pledge to take necessary action in event of accident; whether limitation would have been of questionable validity in absence of pledge uncertain but unlikely).
169 Shriver v. Woodbine Bank, 285 U.S. 467 (1932) .
170 Chase Securities Corp. v. Donaldson, 325 U.S. 304, 315–16 (1945) .
171 Soliah v. Heskin, 222 U.S. 522 (1912) ; City of Trenton v. New Jersey, 262 U.S. 182 (1923) . The equal protection clause has been employed, however, to limit a State’s discretion with regard to certain matters. Infra, pp. 1892–1911.
172 City of Chicago v. Sturges, 222 U.S. 313 (1911) .
173 Louisiana ex rel. Folsom v. Mayor of New Orleans, 109 U.S. 285, 289 (1883) .
174 Michigan ex rel. Kies v. Lowrey, 199 U.S. 233 (1905) .
175 Hunter v. Pittsburgh, 207 U.S. 161 (1907) .
176 Stewart v. Kansas City, 239 U.S. 14 (1915) .

Supplement Footnotes

4 Bennis v. Michigan, 516 U.S. 442 (1996) .
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