Health, Safety, and Morals
Health.

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

Safety.

Regulations designed to promote public safety are also well within a state’s authority. For instance, various 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,357 require that all gas storage tanks with a capacity of more than ten gallons be buried at least three feet under ground,358 or prohibit washing and ironing in public laundries and wash houses within defined territorial limits from 10 p.m. to 6 a.m.359 A city’s demolition and removal of wooden buildings erected in violation of regulations was also consistent with the Fourteenth Amendment.360 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 lodging houses of non-fireproof construction, can be applied to a lodging house constructed in 1940, even though compliance entails an expenditure of $7,500 on a property worth only $25,000.361

States exercise extensive regulation over transportation safety. Although state highways are used primarily for private purposes, they are public property, and the use of a highway for financial gain may be prohibited by the legislature or conditioned as it sees fit.362 Consequently, a state may reasonably provide that intrastate carriers who have furnished adequate, responsible, and continuous service over a given route from a specified date in the past shall be entitled to licenses as a matter of right, but that issuance to those whose service began later shall depend upon public convenience and necessity.363 A state may require private contract carriers for hire to obtain a certificate of convenience and necessity, and decline to grant one if the service of common carriers is impaired thereby. A state may also fix minimum rates applicable to such private carriers, which are not less than those prescribed for common carriers, as a valid as a means of conserving highways.364 In the absence of legislation by Congress, a state may, to protect public safety, deny an interstate motor carrier the use of an already congested highway.365

In exercising its authority over its highways, a state is not limited 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.366 No less constitutional is a municipal traffic regulation that 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.367 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.368 Compulsory automobile insurance is so plainly valid as to present no federal constitutional question.369

Morality.

Legislatures have wide discretion in regulating “im-moral” activities. Thus, legislation suppressing prostitution370 or gambling371 will be upheld by the Court as within the police power of a state. Accordingly, a state statute may provide that judgment against a party to recover illegal gambling winnings may be enforced by a lien on the property of the owner of the building where the gambling transaction was conducted when the owner knowingly consented to the gambling.372 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.373 For the same reason, lotteries, including those operated under a legislative grant, may be forbidden, regardless of any particular equities.374

Footnotes

340
See, e.g., Mugler v. Kansas, 123 U.S. 623, 661 (1887), and the discussion, supra, under “The Development of Substantive Due Process.” [Back to text]
341
California Reduction Co. v. Sanitary Works, 199 U.S. 306 (1905). [Back to text]
342
Hutchinson v. City of Valdosta, 227 U.S. 303 (1913). [Back to text]
343
“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 to text]
344
Powell v. Pennsylvania, 127 U.S. 678 (1888); Magnano v. Hamilton, 292 U.S. 40 (1934). [Back to text]
345
North American Storage Co. v. City of Chicago, 211 U.S. 306 (1908). [Back to text]
346
Adams v. City of Milwaukee, 228 U.S. 572 (1913). [Back to text]
347
Baccus v. Louisiana, 232 U.S. 334 (1914). [Back to text]
348
Roschen v. Ward, 279 U.S. 337 (1929). [Back to text]
349
Minnesota ex rel. Whipple v. Martinson, 256 U.S. 41, 45 (1921). [Back to text]
350
Hutchinson Ice Cream Co. v. Iowa, 242 U.S. 153 (1916). [Back to text]
351
Hebe Co. v. Shaw, 248 U.S. 297 (1919). [Back to text]
352
Price v. Illinois, 238 U.S. 446 (1915). [Back to text]
353
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 to text]
354
“[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 to text]
355
Mugler v. Kansas, 123 U.S. 623, 671 (1887). [Back to text]
356
Hawes v. Georgia, 258 U.S. 1 (1922); Van Oster v. Kansas, 272 U.S. 465 (1926). [Back to text]
357
Pierce Oil Corp. v. Hope, 248 U.S. 498 (1919). [Back to text]
358
Standard Oil Co. v. Marysville, 279 U.S. 582 (1929). [Back to text]
359
Barbier v. Connolly, 113 U.S. 27 (1885); Soon Hing v. Crowley, 113 U.S. 703 (1885). [Back to text]
360
Maguire v. Reardon, 225 U.S. 271 (1921). [Back to text]
361
Queenside Hills Co. v. Saxl, 328 U.S. 80 (1946). [Back to text]
362
Stephenson v. Binford, 287 U.S. 251 (1932). [Back to text]
363
Stanley v. Public Utilities Comm’n, 295 U.S. 76 (1935). [Back to text]
364
Stephenson v. Binford, 287 U.S. 251 (1932). But any attempt to convert private carriers into common carriers, Michigan Pub. Utils. Comm’n v. Duke, 266 U.S. 570 (1925), or to subject them to the burdens and regulations of common carriers, without expressly declaring them to be common carriers, violates due process. Frost Trucking Co. v. Railroad Comm’n, 271 U.S. 583 (1926); Smith v. Cahoon, 283 U.S. 553 (1931). [Back to text]
365
Bradley v. Public Utility Comm’n, 289 U.S. 92 (1933). [Back to text]
366
Accordingly, a statute limiting to 7,000 pounds the net load permissible for trucks is not unreasonable. Sproles v. Binford, 286 U.S. 374 (1932). [Back to text]
367
Because 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. Railway Express Agency v. New York, 336 U.S. 106 (1949). [Back to text]
368
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). [Back to text]
369
Ex parte Poresky, 290 U.S. 30 (1933). See also Packard v. Banton, 264 U.S. 140 (1924); Sprout v. City of 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). [Back to text]
370
L’Hote v. New Orleans, 177 U.S. 587 (1900). [Back to text]
371
Ah Sin v. Wittman, 198 U.S. 500 (1905). [Back to text]
372
Marvin v. Trout, 199 U.S. 212 (1905). [Back to text]
373
Bennis v. Michigan, 516 U.S. 442 (1996). [Back to text]
374
Stone v. Mississippi, 101 U.S. 814 (1880); Douglas v. Kentucky, 168 U.S. 488 (1897). [Back to text]