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.340 For instance, an ordinance for incineration of garbage and refuse at a designated place as a means of protecting public health is not a taking of private property without just compensation, even though such garbage and refuse may have some elements of value for certain purposes.341 Or, 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.342

There are few constitutional restrictions on the extensive state regulations on the production and distribution of food and drugs.343 Statutes forbidding or regulating the manufacture of oleomargarine have been upheld,344 as have statutes ordering the destruction of unsafe food345 or confiscation of impure milk,346 notwithstanding that, in the latter cases, 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 vendors347 or the sale of spectacles by an establishment where a physician or optometrist is not in charge.348 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.349

Equally valid as police power regulations are laws forbidding the sale of ice cream not containing a reasonable proportion of butter fat,350 of condensed milk made from skimmed milk rather than whole milk,351 or of food preservatives containing boric acid.352 Similarly, a statute intended to prevent fraud and deception by prohibiting the sale of “filled milk” (milk to which has been added any fat or oil other than a milk fat) is valid, at least where such milk has the taste, consistency, and appearance of whole milk products. The Court reasoned that 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.353

Even before the passage of the 21st Amendment, which granted states the specific authority to regulate alcoholic beverages, the Supreme Court had found that the states have significant authority in this regard.354 A state may declare that places where liquor is manufactured or kept are common nuisances,355 and may even subject an innocent owner to the forfeiture of his property if he allows others to use it for the illegal production or transportation of alcohol.356


See, e.g., Mugler v. Kansas, 123 U.S. 623, 661 (1887), and the discussion, supra, under “The Development of Substantive Due Process.” back
California Reduction Co. v. Sanitary Works, 199 U.S. 306 (1905). back
Hutchinson v. City of Valdosta, 227 U.S. 303 (1913). back
“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.” Sligh v. Kirkwood, 237 U.S. 52, 59–60 (1915). back
Powell v. Pennsylvania, 127 U.S. 678 (1888); Magnano v. Hamilton, 292 U.S. 40 (1934). back
North American Storage Co. v. City of Chicago, 211 U.S. 306 (1908). back
Adams v. City of Milwaukee, 228 U.S. 572 (1913). back
Baccus v. Louisiana, 232 U.S. 334 (1914). back
Roschen v. Ward, 279 U.S. 337 (1929). back
Minnesota ex rel. Whipple v. Martinson, 256 U.S. 41, 45 (1921). back
Hutchinson Ice Cream Co. v. Iowa, 242 U.S. 153 (1916). back
Hebe Co. v. Shaw, 248 U.S. 297 (1919). back
Price v. Illinois, 238 U.S. 446 (1915). back
Sage Stores Co. v. Kansas, 323 U.S. 32 (1944). Where health or fraud are not an issue, however, police power may be more limited. Thus, a statute forbidding the sale of bedding made with shoddy materials, even if sterilized and therefore harmless to health, was held to be arbitrary and therefore invalid. Weaver v. Palmer Bros. Co., 270 U.S. 402 (1926). back
“[O]n account of their well-known noxious qualities and the extraordinary evils shown by experience commonly to be consequent upon their use, a State has power absolutely to prohibit manufacture, gift, purchase, sale, or transportation of intoxicating liquors within its borders without violating the guarantees of the Fourteenth Amendment.” Crane v. Campbell, 245 U.S. 304, 307 (1917), citing Bartemeyer v. Iowa, 85 U.S. (18 Wall.) 129 (1874); Beer Co. v. Massachusetts, 97 U.S. 25, 33 (1878); Mugler v. Kansas, 123 U.S. 623 (1887); Crowley v. Christensen, 137 U.S. 86, 91 (1890); Purity Extract Co. v. Lynch, 226 U.S. 192 (1912); Clark Distilling Co. v. Western Md. Ry., 242 U.S. 311 (1917); Seaboard Air Line Ry. v. North Carolina, 245 U.S. 298 (1917). See also Kidd v. Pearson, 128 U.S. 1 (1888); Barbour v. Georgia, 249 U.S. 454 (1919). back
Mugler v. Kansas, 123 U.S. 623, 671 (1887). back
Hawes v. Georgia, 258 U.S. 1 (1922); Van Oster v. Kansas, 272 U.S. 465 (1926). back