The Police Power, Public Policy and Constitutional Rights (Google eBook)

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Callaghan, 1904 - Police power - 819 pages
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Contents

Supply of ways and means 7 Maintenance of right and the redress of wrong Civil and crim inal justice
4
Public welfare or internal public policy
5
safety order and morals
7
Care and control of dependents 12 Economic interests 13 Nonmaterial or ideal interests 14 Political interests 15 Relative attitude of the government...
11
Relation between private right and public welfare 17 The constitution as judicially enforceable
12
Specific limitations upon police legislation
13
General limitations
14
Due process of
15
Justice and judicial policy
16
B THE POLICE POWER AS A POWER OF RESTRAINT AND COMPULSION 2226 S 22 Corporate and moral capacity of the state
17
Power over licenses and privileges
19
Corporate powers of state and individual rights
23
Outline
27
Restraint as distinguished from regulation and prohibition Positive standards and limitations 2934
29
Imposed standards as compared with customary standards
30
Regulations applied to innocuous conditions
31
Standards of articles of consumption
32
Regulation by municipal authority
33
Choice between measures of equal efficiency
34
Regulations to insure compliance with the law 3557
35
Licenses 3639
36
Purpose and application Reports and Registration 4246
38
As applied to business
39
Statistical information 45 Passports and registration of strangers
40
Registration and equality
41
Inspection 47
42
Secrecy of letters
43
Notice of a prejudicial character 4952
44
Goods marked convict made
45
Compulsory association 56
50
Brennan 177 11l 194 Am Rep 535 668
52
The principle of reasonableness
57
Hackett 27 N H 64 N E 533
61
Police power in a federal state
64
Inspection laws
71
Point at which commerce ceases to be interstate or foreign com merce original package doctrine
77
The principle of nondiscrimination
79
Things which are lawful articles of commerce and things which are not State power of exclusion
80
Conflict between state policy and freedom of commerce
81
Summary of principles
82
THE PUBLIC WELFARE
85
THE PRIMARY SOCIAL INTERESTS SAFETY ORDER AND MORALS CHAPTER IV
86
Arrest
88
Suppression of riot 89 Security of the peace
89
Concealed weapons
90
Military organisations
91
Bodies of armed
93
Restraints upon business and upon particular dealings
94
Criminal character 95 Reputation
95
Known thieves
96
Vagrancy vagabondage and criminal idleness
97
Vagrancy not a status of dependence
98
Vagrancy a criminal offense
99
Vagrancy as a means of dealing with suspects 101 Control over immigration
100
Control over criminals after conviction 103 Measures during 1mprisonment
101
Conditional pardon 105 Indeterminate sentence laws and parole
103
Question of delegation of judicial powers
104
Parole conditions a form of police supervision
105
Suspension of sentence and probation
106
Security of good behavior 110 Disabilities of exconvicts
107
CHAPTER V
109
Safety legislation 113121
110
Mines 116 Railroads
111
Principal subjects of legislation
112
Buildings andstructures
113
Dangerous sports 121 Destructive animals and vermin noxious weeds and other pests Sanitary legislation 122133
114
Marriage
116
Burials and cemeteries
117
Dead bodies 127 Land structures and buildings
118
Buildings and other establishments 129 Foodstuffs
119
Other articles of consumption
120
Employment 132 Qualification for the exercise of callings affecting health
121
Nonresidence relevant for police purposes 711 Practice of medicine
122
Practice of medicine
123
Limitations of the federal constitution upon the police power for the protec tion of safety and health 134139
124
Safety legislation affecting commerce
125
Federal power not exclusive of protective state legislation
126
Exercise of state police power not conclusive 138 Discriminative legislation under color of sanitary pover
127
Louisiana v Texas
129
Local powers for the protection of safety and health 140142
130
Principle of construction
131
Judicial control as to reasonableness
132
Limitations of health and safety powers with reference to conditions and measures 143155
133
Inconclusiveness of legislative judgment
134
Judicial notice of established scientific laws and general conditions i 146 Sanitary purpose need not be expressed
135
Difference of objects as justifying different measures 1148 Measure must tend to remove danger
136
Measure need not be tne most adequate conceivable 150 Measure proportionate to danger
138
Interference with established economic cr social conditions 152154 The practice of medicine and freedom of science 155 Measures restraining a cla...
141
CHAPTER VI
144
158 Reasonableness
145
Order and freedom of commerce Power over encroachments on streets 160164
146
Fee and easement 161 Control of public use 162 Customary encroachments 163 Power to prohibit and regulate
148
Protection of streets from injury The common right to use public places 5 165170
150
Power over use of street not absolute
151
Extent of common
152
Obstruction and disorderly conduct
153
Use of rivers
154
Special street uses
155
Special uses of abutters 173 Use for profit
156
Use for parades processions public addresses and meetings
157
Power over places of public resort in private ownership 175 Subject to police regulation Offensiveness 176179
158
Municipal power over offensive establishments
159
Reasonableness of standards
160
Assignment to specified districts
161
Addyston Pipe and Steel Com Pa 287 40 Am Rep 649
162
Unsightliness 180183
163
Limiting the height of buildings adjacent to public parks 181 Building regulations not for purely aesthetic purposes
164
Unsightly advertisements
166
United States 239 11 C C A 209 450452
171
CHAPTER VII
172
Betting
179
Legislation restraining dealings in futures and options
186
CHAPTER VIII
192
Prohibition 213217
201
Gotenburg system
207
Habitual intemperance
213
CHAPTER IX
220
Tests of obscenity
221
science social reform
223
Art and literature
224
Illicit sexual intercourse 240246
225
Prostitution Scope and ground of state control
226
Systems of legislation
227
Measures against prostitutes
228
Houses of prostitution
231
Practices in aid of prostitution
232
Brutality and inhumanity 247249
233
Cruelty to animals Vivisection
235
Public amusements 250251
237
Control over theatres Stage censorship
239
CHAPTER X
242
Provisions held defective
243
Constitutional requirements
244
Right to discharge 256 Control of private asylums
245
Minors 257267
246
Constitutionality
247
Parental right of custody and commitment to reform institutions
248
Dependence or delinquency
249
Notice to parent
250
Discharge from institution
251
Compulsory education 265 Truant schools
252
Power over private education
253
Power over graduate instruction Pauperism and charity 268271
254
The state and private charity
255
Compulsory support by relatives
256
Restrictive measures against paupers
257
ECONOMIC INTERESTS PROTECTION AGAINST FRAUD AND OPPRESSION PUBLIC CONVENIENCE AND ADVANTAGE CHAPTER XI PR...
260
Determination and verification of standards
261
Compelling certain modes of dealing
262
Inspection laws 276278
263
Restrictions under state constitutions
265
Substitutes imitations adulterations 279286
266
Commodities to which legislation applies Gold and silver 282 Oleomargarine legislation 283 Absolute prohibition 284 Prohibition of imitation 28...
271
Ordinances Forms of business liable to abuse 287295
272
Peddlers
273
Scope of legislation
274
Auctioneers 291 Ticket brokerage
275
Bankrupt and fire sales
276
Gift sales and trade stamps
277
Peddling etc and the freedom of commerce
279
Mann 46 Minn Beha v State Neb 93
284
CHAPTER XII
285
Annoying practices in the collection of debts
286
Usury laws i 302304
288
American legislation
289
Question of constitutionality
290
Bankruptcy legislation 305307
291
Prospective state insolvency laws
292
Retrospective bankruptcy legislation Legislation against contracts payable in gold 308 309
293
Constitutionality
294
Nondiscriminative license fees
295
Fidelity of agents depositaries and trustees 296297
296
Warehousemen and commission merchants
297
Public interest in prevention of fraud Bottling Acts
298
Legislation for adult laborers
300
Hours of labor
301
Question of constitutionality
302
Rate of wages
303
weekly payment and store order acts 320 Judicial decisions
305
Constitutional principle
307
32? Imposed conditions and penalties
308
Penalty for leaving without notice
309
Fines for imperfect work
310
Coercion to influence or prevent the exercise of political rights 326 Coercion against membership in trade unions
312
Blacklisting and clearance cards
314
Employment brokerage
315
Federal legislation for the protection of labor
316
COMBINATIONS OF LABORERS 330 Combinations under the English
318
Earlier American cases and statutes
319
Question of the legality of strikes 333 Intimidation and coercion
322
Malicious interference S 335 Constitutional power over strikes
325
Strike as a source of disorder
327
Strikes and trusts
329
CHAPTER XV
330
American legislation
331
Analysis of provisions
333
Federal antitrust legislation
334
Division of control between states and United States 343 Restraint of trade at common
336
Associations with restrictive bylaws 345 Agreements not to deal with persons acting contrary to agreement
338
Exclusive selling arrangements Rebates
339
Agreements to fix prices limit supplies or divide business
342
Covenants by vendor of business
343
Consolidation of different concerns
344
Trusts
345
Consolidation of corporations
351
Monopolistic corporation 353 When is the point of monopoly reached I
352
Discrimination between combinations for different purposes
353
CHAPTER XVI
356
The right to incorporate as a license 359 Special charters and general incorporation laws
357
Restrictions on corporate capacity
358
The charter as a contract and reservation of legislative power
361
Modifications of the doctrine of the Dartmouth College case
362
Present effect of Dartmouth College decision
365
Compulsory incorporation
368
Ah Lit Ex parte 26 Fed 512 455 Allen v Stevens 161 N
369
CHAPTER XVII
370
Devices for tying up property Civil
371
Common law The rule against perpetuities
372
Mortmain legislation in England
374
Mortmain legislation in America
375
Perpetual rents 1371 Long leases
377
CHAPTER XVIII
380
Statement of doctrine 373 Kinds of business and forms of control
381
Regulation of charges 374385
383
English legislation 9 375 American legislation
384
Attitude of the courts
385
Justification by legal or virtual monopoly
386
People 78 11l 510 S 578 17 Sup Ct Rep 427 716
387
Constitutionality in other cases
388
Earlier doctrine that reasonableness legislative question 380 Regulation not confiscation
390
Rates fixed by commission and due process
391
Rates fixed by legislature
393
Jurisdiction of federal courts 384 Difficulties of judicial control
394
Judicial regulation
396
Requirement of equal service 386394
397
To what kind of business applicable 387 Equal and sufficient service
398
Grounds of requirement
399
Public convenience not ordinarily a ground of police control
416
Requirements and reductions in the interest of financial security 399401
417
Grounds of control
419
Restriction of right to carry on business
420
QUALIFIED PROPERTY 402 In general Navigable waters and riparian rights 403409
422
Land covered by water
423
Special grants Commonwealth v Alger
424
Establishment of harbor lines Effect on existing wharves
425
Obstructions under act of Sept 19 1890
426
Easements of the riparian owners
427
Riparian land
431
dam privileges 410413
432
Theory of Massachusetts courts 412 Taxing for public
433
413 Other legislation authorizing the flooding of land Natural water as qualified property 414417
436
Doctrine of prior appropriation
437
Subordination of right to beneficial purpose
438
Constitutional recognition of doctrine
439
Game and fish 418421
442
Common law and legislation 419 Constitutionality
443
Wright 53 N H Rep 641 419
444
Game and fish laws and freedom of commerce
445
Property in dogs
446
Waste of natural wealth 422423
447
Forest preservation Restrictions on property in the interest of other owners 424427
449
Easements of support 425 Natural waters
450
North Missouri
451
Malicious erections and private nuisances
452
Private roads
453
CHAPTER XX
456
Compulsory measures against improvidence 430437
457
431 Spendthrifts
458
Compulsory insurance
459
Its constitutional aspect 434 American legislation providing insurance
460
Insurance in connection with registration of titles
462
Teachers pension funds 437 Compulsory insurance of workmen
463
Compulsory industry and improvement 438439
464
Constitutional aspect of such legislation
465
Compulsory joint improvements 440444
467
Constitutional justification
468
Party walls
470
Division fences
471
FUNDAMENTAL RIGHTS UNDER THE POLICE POWER
473
LIBERTY
474
CHAPTER XXI
475
Different aspects of liberty NoteThe right to life Liberty of the body 446452
476
Cases of deprivation of personal l1berty 9 447 Compulsory vaccination
477
Compulsory service and labor contracts
478
Unreasonable contracts to serve
479
Contract labor laws
480
American legislation
481
Specific enforcement and criminal punishment
482
Liberty of private conduct 453457
483
Private consumption of liquor
484
455 Question of constitutional right
485
Principle of statutory construction Liquor in clubs
486
Freedom of social intercourse
488
CHAPTER XXII
489
Support of church out of public funds 461 Religious disqualifications
490
Recognition of religion
491
The Bible in public schools
492
Protective and restrictive legislation i 465 Blasphemy
493
Regulative legislation
495
Limits of religious freedom
497
Practices and doctrines in conflict with public safety and order 469 Conflict between civic and religious duties
499
Sunday laws
501
Freedom of speech and press 471479
503
471 The constitutional guaranty and censorship 472 Freedom of speech and press and the law of libel
506
473 Foxs Libel
507
Prosecutions for seditious libel in America
508
Attacks upon government in general Anarchism
509
Incitement to crime and violence
510
477 Anarchists cases
511
Legislation
512
Freedom of culture
513
Freedom of assembly and association 480484
514
Right of assembly and use of public places 481 History of the right of association
516
Constitutional power in America
518
Political parties and primary election laws
519
CHAPTER XXIII
523
Emigration and expatriation
524
Right to come into a state
526
Emigration from a state
527
Movement from and to United States territories
528
Migration and settlement within a state
529
Freedom of pursuit of livelihood 492497
531
Classes of business requiring license
532
Legitimate grounds of restraint and protection from competition
533
Certification in place of license 496 Delegation of legislative power
535
Principle of equality
536
Contract essential to property 8 499 Contract part of civil liberty 500 Freedom of contract and oppression
537
Legislation and United States Supreme Court 502 Decisions of state courts
538
Formulation of principle
539
PROPERTY VESTED RIGHTS UNDER THE POLICE POWER CHAPTER XXIV
540
American constitutions and Fourteenth Amendment
541
Injury 507510
542
Physical invasion 509 Doctrine of consequential damages
543
Modifications of doctrine
544
Taking to ward off public injury 511517
546
Appropriation generally outside of the police power 513 Prejudicial regulation without compensation
547
Justification of such regulation 515 Regulation of property rights
548
11lustrations of regulation not amounting to taking
549
517 Cases of destruction or abrogation of property rights
550
Insubstantial invasion or destruction 518519
551
Property taken of slight value
552
Nuisances 520528
554
Carcasses garbage
556
Infected cattle 525 Property unlawfully used and forfeiture
557
Judicial safeguards
558
Lawton v Steele
559
Status of noxious establishments 530 Exercise of municipal power
561
Judicial safeguards 532 Status of offensive industries under foreign laws
562
Massachusetts law Destruction to avoid calamity 534537
563
Destruction to check spread of fire 535 Statutory compensation 536 Destruction for military purposes
565
CHAPTER XXV
567
Prohibition against the use of property
568
Mugler v Kansas 541 Powell v Pennsylvania
569
Regulation involving partial prohibition 543 Prohibition operating upon established business or practice of pro fession
571
The test oath cases 545 Hawker v New York
573
Criticism of Hawker v New York
574
Prohibition of oleomargarine business
575
B EXPENSIVE ALTERATIONS AND IMPROVEMENTS 548549
576
Limit of constitutional power C SEDUCTION OF CHARGES 550554
577
Basis of calculation the whole business within the state 522 Value of particular service
578
Value of property
579
Fair return
581
IMPAIRMENT OF THE OBLIGATION OF CONTRACTS 555560
582
Impairment forbidden only if in interest of party obligated
583
Legislation for the relief of debtors
584
Retrospective legal tender laws
585
Contracts to pay in specific kind of money
586
Scaling laws
587
CHAPTER XXVI
588
In general License to pursue a business prejudicial to safety or morals 562564
589
Liquor licenses
591
Useful but offensive undertakings carried on under license 565 Cemeteries markets
592
Exemptions 566568
593
From taxation
594
Corporate powers and privileges 569572
595
Question whether contract or not 571 Illinois water rate cases
596
Reservation of power to alter and repeal Licenses to use public property Street and other franchises 573577
598
Question of municipal power 575 Question of surrender of police power 576 License a contract or a right of property
599
Revocability not effected by exclusiveness Suggestions regarding rights claimed under affirmative sanction 578582
602
Equity of executed consideration
603
Licenses limited in time not a surrender of the police power
604
Perpetual licenses unreasonable 582 Licenses in terms made revocable
605
CHAPTER XXVII
607
Perpetual rents
611
Perpetual covenants
612
Entails
613
Acts of secularisation
614
Suppression of monastaries in England 594 Virginia legislation
615
Pawlet v Clark 596 The Mormon Church case
616
Legislative power over eleemosynary trusts 597601
618
Eleemosynary trusts and the Dartmouth College doctrine 598 Doctrines laid down in Mormon Church case
620
Effect of reserved power over corporate charter
621
Trust objects becoming contrary to public policy
622
English legislation NotePower over eleemosynary trusts by Prussian
623
Summary of principles regarding property under the police power
625
FUNDAMENTAL RIGHTS THIRD EQUALITY CHAPTER XXVIII EQUALITY AS A POLITICAL PRINCIPLE 603 Social and natural inequality ...
626
Equality in England
627
Equality in France 607 Equality in Prussia
628
Equality under American state constitutions
629
The Fourteenth Amendment and the Slaughter House cases
630
Equality and the equal protection of the laws 611 Equality and due process of
633
CHAPTER XXIX
635
PARTICULAR BURDENS 612 Subject selected to be responsible for condition calling for burden and responsibility 613 Particular services
636
Emergency services
637
Underwriters patrols
638
Dangers due to natural conditions 616620
639
Reasonableness of requirement
640
Where land not the source of the danger
641
Cleaning sidewalks
643
Special liability in connection with hazardous undertakings 621638
644
Liability for cost of official supervision 623 Liability for the cost of remedial measures i 624 Liability for acts of persons employed under legal com...
646
Ships liability for fault of pilot
647
Civil Damage acts NoteSubcontractors liens 627 Liens under U S Revenue laws
650
Dangers incident to the operation of railroads 629 Injuring or killing of cattle
651
Substitution of ministerial function
652
Fire started by sparks from locomotives
653
Judicial Control 654655
654
631 Railroad crossings
655
Injury to passengers
656
Absolute liability for personal injuries under other legal systems 634 Constitutionality of absolute liability
657
Penal liability and fault wrongful intent dispensed with
659
Knowledge presumed 637 Penal liability of railroad companies
661
Penalty corresponding to fault
663
CHAPTER XXX
664
Right to equality notwithstanding liability to entire prohibition
665
Restrictions based on objective conditions 641645
666
cases in which held unconstitutional
667
cases in which sustained
669
Vote or consent of people of locality Professional qualification 646650
671
Discrimination in tests of fitness 648 Encroachment upon judicial power 649 Delegation of legislative power
673
Privileges accompanying professional license
674
Statement of problem
682
Monopolies of necessity franchises 658662
683
Right of condemnation of property 660 Temporarily exclusive right under special legislation 661 Canals and river improvements
684
662 Bank notes
685
Equity of exclusive right 664 Federal legislation
686
Monopoly character
687
Monopolies against common right 666673
688
Municipal monopolies
689
Private monopolies against common right Ferries
690
Monopoly as a means of police control Slaughter house cases
692
License lease or contract
693
Power over monopolised business 672 Restriction of numbers
694
Resulting privileges
695
Rcvocability of monopolies and grant of competing rights 674681
697
Unequivocal grant of exclusive character required
698
Principle of strict construction justified
699
Rival public undertakings 678 Question of power to make exclusiveness a matter of right
700
Grant of competing right as impairing the obligation of contracts
701
Louisiana Slaughter House and Gas Company cases
702
Perpetual monopolies and monopolies limited in time
703
Federal civil rights legislation
714
Segregation and equality
720
Aliens 704707
726
Argentine City of v Atchison Co 110 U S 667 4 Sup
730
Proprietary resources of state Corporations 713715
733
Corporate capacity and vested rights
735
Foreign corporations 716720
736
DISCRIMINATION BASED ON DIFFERENCE OF ACTS AND OCCUPATIONS 721738 721 Police power may single out particular evils
740
Police power may single out one side of a relation 723 Discrimination between similar evils
741
Abstract classification according to degree of danger
742
Classification by social or economic groups
743
Synopsis of decisions 727 Legislation for the prevention of accidents
744
Sanitary legislation
746
Public order 730 Legislation against gambling
747
Legislation against fraud 732 Licensing occupations
748
Regulation of rates and charges
749
Antitrust legislation 735 Labor legislation
750
Principles deducible from decisions
753
Systematic legislation
754
Formation of principle
755
floods marked tenement made 5L Resulting injury
814
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Common terms and phrases

Popular passages

Page 583 - And, in order to ascertain that value, the original cost of construction, the amount expended in permanent improvements, the amount and market value of its bonds and stock, the present as compared with the original cost of construction, the probable earning capacity of the property under particular rates prescribed by statute, and the sum required to meet operating expenses, are all matters for consideration, and are to be given such weight as may be just and right in each case.
Page 386 - Property does become clothed with a public interest when used in a manner to make it of public consequence and affect the community at large. When, therefore, one devotes his property to a use in which the public has an interest, he, in effect, grants to the public an interest in that use, and must submit to be controlled by the public for the common good, to the extent of the interest he has thus created.
Page 734 - All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.
Page 442 - That whenever by priority of possession rights to the use of water for mining, agricultural, manufacturing, or other purposes have vested and accrued and the same are recognized and acknowledged by the local customs, laws, and the decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same...
Page 363 - We leave out of our consideration those territories which at the end of the fourteenth and the beginning of the fifteenth century...
Page 528 - ... government has freely received emigrants from all nations, and invested them with the rights of citizenship; and whereas it is claimed that such American citizens, with their descendants, are subjects of foreign states, owing allegiance to the governments thereof; and whereas it is necessary to the maintenance of public peace that this claim of foreign allegiance should be promptly and finally disavowed: Therefore any declaration, instruction, opinion, order, or decision of any officer of the...
Page 442 - All patents granted, or preemption or homesteads allowed, shall be subject to any vested and accrued water rights, or rights to ditches and reservoirs used in connection with such water rights, as may have been acquired under or recognized by the preceding section.
Page 379 - ... the rule against perpetuities. "The rule against perpetuities is thus stated : 'No interest subject to a condition precedent is good unless the condition must be fulfilled, if at all, within twenty-one years after some life in being at the creation of the interest.
Page 495 - No person shall be deprived of life, liberty or property without due process of law. 3. The free exercise and enjoyment of religious profession and worship, without discrimination, shall forever be guaranteed ; and no person shall be denied any civil or political right, privilege or capacity on account of his religious opinions...
Page 216 - ... transported into any State or Territory, or remaining therein for use, consumption, sale or storage therein, shall upon arrival in such State or Territory, be subject to the operation and effect of the laws of such State or Territory, enacted in the exercise of its police powers, to the same extent and in the same manner as though such animals or birds had been produced in such State or Territory, and shall not be exempt therefrom by reason of being introduced therein in original packages or...

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