Annotation 7 - Fourteenth Amendment
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 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 milk 139 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 vendors 140 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 fat 143 or of condensed milk made from skimmed milk rather than whole milk 144 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 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 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 prostitution 161 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 Similarly, a court may order a car used in an act of prostitution forfeited as a public nuisance, even if thisworks a deprivation on an innocent joint owner of the car. Supp.1 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, 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
[Footnote 128] See, e.g., Mugler v. Kansas, 123 U.S. 623, 661 (1887), and discussion supra p.1575.
[Footnote 129] Pierce Oil Corp. v. Hope, 248 U.S. 498 (1919).
[Footnote 130] Standard Oil Co. v. Marysville, 279 U.S. 582 (1929).
[Footnote 131] Barbier v. Connolly, 113 U.S. 27 (1885); Soon Hing v. Crowley, 113 U.S. 703 (1885).
[Footnote 132] Maguire v. Reardon, 225 U.S. 271 (1921).
[Footnote 133] Queenside Hills Co. v. Saxl, 328 U.S. 80 (1946).
[Footnote 134] California Reduction Co. v. Sanitary Works, 199 U.S. 306 (1905).
[Footnote 135] Hutchinson v. City of Valdosta, 227 U.S. 303 (1913).
[Footnote 136] Sligh v. Kirkwood, 237 U.S. 52, 59 -60 (1915).
[Footnote 137] Powell v. Pennsylvania, 127 U.S. 678 (1888); Magnano v. Hamilton, 292 U.S. 40 (1934).
[Footnote 138] North American Storage Co. v. City of Chicago, 211 U.S. 306 (1908).
[Footnote 139] Adams v. City of Milwaukee, 228 U.S. 572 (1913).
[Footnote 140] Baccus v. Louisiana, 232 U.S. 334 (1914).
[Footnote 141] Roschen v. Ward, 279 U.S. 337 (1929).
[Footnote 142] Minnesota ex rel. Whipple v. Martinson, 256 U.S. 41, 45 (1921).
[Footnote 143] Hutchinson Ice Cream Co. v. Iowa, 242 U.S. 153 (1916).
[Footnote 144] Hebe Co. v. Shaw, 248 U.S. 297 (1919).
[Footnote 145] Price v. Illinois, 238 U.S. 446 (1915).
[Footnote 146] Sage Stores Co. v. Kansas, 323 U.S. 32 (1944).
[Footnote 147] Weaver v. Palmer Bros. Co., 270 U.S. 402 (1926).
[Footnote 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).
[Footnote 149] Mugler v. Kansas, 123 U.S. 623, 671 (1887).
[Footnote 150] Hawes v. Georgia, 258 U.S. 1 (1922); Van Oster v. Kansas, 272 U.S. 465 (1926).
[Footnote 151] Stephenson v. Binford, 287 U.S. 251 (1932).
[Footnote 152] Stanley v. Public Utilities Comm'n, 295 U.S. 76 (1935).
[Footnote 153] Stephenson v. Binford, 287 U.S. 251 (1932).
[Footnote 154] Michigan Pub. Utils. Comm'n v. Duke, 266 U.S. 570 (1925).
[Footnote 155] Frost Trucking v. Railroad Comm'n, 271 U.S. 583 (1926); Smith v. Cahoon, 283 U.S. 553 (1931).
[Footnote 156] Bradley v. Public Utils. Comm'n, 289 U.S. 92 (1933).
[Footnote 157] Sproles v. Binford, 286 U.S. 374 (1932).
[Footnote 158] Railway Express Agency v. New York, 336 U.S. 106 (1949).
[Footnote 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).
[Footnote 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).
[Footnote 161] L'Hote v. New Orleans, 177 U.S. 587 (1900).
[Footnote 162] Ah Sin v. Wittman, 198 U.S. 500 (1905).
[Footnote 163] Marvin v. Trout, 199 U.S. 212 (1905).
[Footnote 1 (1996 Supplement)] Bennis v. Michigan, 116 S. Ct. 994 (1996).
[Footnote 164] Stone v. Mississippi, 101 U.S. 814 (1880); Douglas v. Kentucky, 168 U.S. 488 (1897).
[Footnote 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).
[Footnote 166] Angle v. Chicago, St. Paul, M. & D. Ry., 151 U.S. 1 (1894).
[Footnote 167] Coombes v. Getz, 285 U.S. 434, 442 , 448 (1932).
[Footnote 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).
[Footnote 169] Shriver v. Woodbine Bank, 285 U.S. 467 (1932).
[Footnote 170] Chase Securities Corp. v. Donaldson, 325 U.S. 304, 315 -16 (1945).
[Footnote 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.
[Footnote 172] City of Chicago v. Sturges, 222 U.S. 313 (1911).
[Footnote 173] Louisiana ex rel. Folsom v. Mayor of New Orleans, 109 U.S. 285, 289 (1883).
[Footnote 174] Michigan ex rel. Kies v. Lowrey, 199 U.S. 233 (1905).
[Footnote 175] Hunter v. Pittsburgh, 207 U.S. 161 (1907).
[Footnote 176] Stewart v. Kansas City, 239 U.S. 14 (1915).