Annotation 5 - Fourteenth Amendment

Regulation of Public Utilities (Other Than Rates)

In General .--By virtue of the nature of the business they carry on and the public's interest in it, public utilities are subject to state regulation exerted either directly by the legislature or by duly authorized administrative bodies. 188 But because the property of public utilities remains under the full protection of the Constitution, it follows that whenever the state regulates in a manner that infringes the right of ownership in what the Court considers to be an ''arbitrary'' or ''unreasonable'' way, due process is violated. 189 Thus, a city cannot take possession of the equipment of a street railway company, the franchise of which has expired, 190 although it may subject the company to the alternative of accepting an inadequate price for its property or of ceasing operations and removing its property from the streets. 191 Likewise, a city desirous of establishing a lighting system of its own may not remove, without compensation, the fixtures of a lighting company already occupying the streets under a franchise, 192 although it may compete with a com pany that has no exclusive charter. 193 The property of a telegraph company is not illegally taken, however, by a municipal ordinance that demands, as a condition for the establishment of poles and conduits in city streets, that the city's wires be carried free of charge, and which provides for the moving of the conduits, when necessary, at company expense. 194  

And, the fact that a State, by mere legislative or administrative fiat, cannot convert a private carrier into a common carrier will not protect a foreign corporation which has elected to enter a State the constitution and laws of which require that it operate its local private pipe line as a common carrier. Such foreign corporation is viewed as having waived its constitutional right to be secure against imposition of conditions which amount to a taking of property without due process of law. 195  

Compulsory Expenditures: Grade Crossings, and the Like .-- Generally, the enforcement of uncompensated obedience to a regulation for the public health and safety is not an unconstitutional taking of property without due process of law. 196 Thus, where the applicable rule so required at the time of the granting of its charter, a water company may be compelled to furnish connections at its own expense to one residing on an ungraded street in which it voluntarily laid its lines. 197 However, if pipe and telephone lines are located on a right of way owned by a pipeline company, the latter cannot, without a denial of due process, be required to relocate such equipment at its own expense, 198 but if its pipes are laid under city streets, a gas company validly may be obligated to assume the cost of moving them to accommodate a municipal drainage system. 199  

To require a turnpike company, as a condition of its taking tolls, to keep its road in repair and to suspend collection thereof, conformably to a state statute, until the road is put in good order, does not take property without due process of law, notwithstanding the fact that present patronage does not yield revenue sufficient to maintain the road in proper condition. 200 Nor is a railroad bridge company unconstitutionally deprived of its property when, in the absence of proof that the addition will not yield a reasonable return, it is ordered to widen its bridge by inclusion of a pathway for pedestrians and a roadway for vehicles. 201  

Similarly upheld against due process/taking claims were requirements that railroads repair a viaduct under which they operate, 202 or reconstruct a bridge or provide means for passing water for drainage through their embankment, 203 or sprinkle that part of the street occupied by them. 204 On the other hand, a requirement that an underground cattle-pass is be constructed, not as a safety measure but as a means of sparing the farmer the inconvenience attendant upon the use of an existing and adequate grade crossing, was held to be a prohibited taking of the railroad's property for private use. 205 As to grade crossing elimination, the rule is well established that the state may exact from railroads the whole, or such part, of the cost thereof as it deems appropriate, even though commercial highway users, who make no contribution whatsoever, benefit from such improvements.

While the power of the State in this respect is not unlimited, and an ''arbitrary'' and ''unreasonable'' imposition may be set aside, the Court's modern approach to substantive due process analysis makes this possibility far less likely than it once was. Distinguishing a 1935 case invalidating a statutorily mandated 50% cost sharing which in effect prevented particularized findings of reasonableness (and which contained language suggesting that railroads could not fairly be required to subsidize competitive transportation modes), 206 the Court in 1953 ruled that the costs of grade separation improvements need not be allocated solely on the basis of benefits that would accrue to railroad property. 207 While the Court cautioned that ''allocation of costs must be fair and reasonable,'' it also took an approach very deferential to local governmental decisions, stating that in the exercise of the police power to meet transportation, safety, and convenience needs of a growing community, ''the cost of such improvements may be allocated all to the railroads.''

Compellable Services .--The primary duty of a public utility being to serve on reasonable terms all those who desire the service it renders, it follows that a company cannot pick and choose and elect to serve only those portions of its territory which it finds most profitable, leaving the remainder to get along without the service which it alone is in a position to give. Compelling a gas company to continue serving specified cities as long as it continues to do business in other parts of the State entails therefore no unconstitutional deprivation. 208 Likewise, a railway may be compelled to continue the service of a branch or part of a line although the operation involves a loss. 209 But even though a utility, as a condition of enjoyment of powers and privileges granted by the State, is under a continuing obligation to provide reasonably adequate service, and even though that obligation cannot be avoided merely because performance occasions financial loss, yet if a company is at liberty to surrender its franchise and discontinue operations, it cannot be compelled to continue at a loss. 210  

Pursuant to the principle that a State may require railroads to provide adequate facilities suitable for the convenience of the communities they serve, 211 such carriers have been obligated to establish stations at proper places for the convenience of patrons, 212 to stop all their intrastate trains at county seats, 213 to run a regular passenger train instead of a mixed passenger and freight train, 214 to furnish passenger service on a branch line previously devoted exclusively to carrying freight, 215 to restore a siding used principally by a particular plant but available generally as a public track, and to continue, even though not profitable by itself, sidetrack 216 as well as the upkeep of a switch track leading from its main line to industrial plants. 217 However, a statute requiring a railroad without indemnification to install switches on the application of owners of grain elevators erected on its right-of-way was held void. 218 Whether a state order requiring transportation service is to be viewed as reasonable may necessitate consideration of such facts as the likelihood that pecuniary loss will result to the carrier, the nature, extent and productiveness of the carrier's intrastate business, the character of the service required, the public need for it, and its effect upon service already being rendered. 219 Requirements for service having no substantial relation to transportation have been voided, as in the case of an order requiring railroads to maintain cattle scales to facilitate trading in cattle, 220 and a prohibition against letting down an unengaged upper berth while the lower berth was occupied. 221  

''Since the decision in Wisconsin, M. & P.R. Co. v. Jacobson, 179 U.S. 287 (1900), there can be no doubt of the power of a State, acting through an administrative body, to require railroad companies to make track connections. But manifestly that does not mean that a Commission may compel them to build branch lines, so as to connect roads lying at a distance from each other; nor does it mean that they may be required to make connections at every point where their tracks come close together in city, town and country, regardless of the amount of business to be done, or the number of persons who may utilize the connection if built. The question in each case must be determined in the light of all the facts and with a just regard to the advantage to be derived by the public and the expense to be incurred by the carrier. . . . If the order involves the use of property needed in the discharge of those duties which the carrier is bound to perform, then, upon proof of the necessity, the order will be granted, even though 'the furnishing of such necessary facilities may occasion an incidental pecuniary loss.' . . . Where, however, the proceeding is brought to compel a carrier to furnish a facility not included within its absolute duties, the question of expense is of more controlling importance. In determining the reasonableness of such an order the Court must consider all the facts-- the places and persons interested, the vol ume of business to be affected, the saving in time and expense to the shipper, as against the cost and loss to the carrier.'' 222  

Although a carrier is under a duty to accept goods tendered at its station, it cannot be required, upon payment simply for the service of carriage, to accept cars offered at an arbitrary connection point near its terminus by a competing road seeking to reach and use the former's terminal facilities. Nor may a carrier be required to deliver its cars to connecting carriers without adequate protection from loss or undue detention or compensation for their use. 223 But a carrier may be compelled to interchange its freight cars with other carriers under reasonable terms, 224 and to accept, for reshipment over its lines to points within the State, cars already loaded and in suitable condition. 225  

Due process is not denied when two carriers, who wholly own and dominate a small connecting railroad, are prohibited from exacting higher charges from shippers accepting delivery over said connecting road than are collected from shippers taking delivery at the terminals of said carriers. 226 Nor is it ''unreasonable'' or ''arbitrary'' to require a railroad to desist from demanding advance payment on merchandise received from one carrier while it accepts merchandise of the same character at the same point from another carrier without such prepayment. 227  

Safety Regulations Applicable to Railroads .--Governmental power to regulate railroads in the interest of safety has long been conceded. The following regulations have been upheld: a prohibition against operation on certain streets, 228 restrictions on speed, operations, and the like, in business sections, 229 requirement of construction of a sidewalk across a right of way, 230 or removal of a track crossing at a thoroughfare, 231 compelling the presence of a flagman at a crossing notwithstanding that automatic devices might be cheaper and better, 232 compulsory examination of employees for color blindness, 233 full crews on certain trains, 234 specification of a type of locomotive headlight, 235 safety appliance regulations, 236 and a prohibition on the heating of passenger cars from stoves or furnaces inside or suspended from the cars. 237  

Statutory Liabilities and Penalties Applicable to Railroads .--A statute making the initial carrier, 238 or the connecting or delivering carrier, 239 liable to the shipper for the nondelivery of goods is not unconstitutional; nor is a law which provides that a railroad shall be responsible in damages to the owner of property injured by fire communicated by its locomotive engines and which grants the railroad an insurable interest in such property along its route and authority to procure insurance against such liability. 240 Equally consistent with the requirements of due process are the following two enactments: the first, imposing on all common carriers a penalty for failure to settle within a reasonable specified period claims for freight lost or damaged in shipment and conditioning payment of that penalty upon recovery by the claimant in a subsequent suit of more than the amount tendered, 241 and the second, levying double damages and an attorney's fee upon a railroad for failure to pay within a reasonable time after demand the amount claimed by an owner for stock injured or killed. However, the Court subsequently limited its approval of the latter statute to cases in which the plaintiff had not demanded more than he recovered in court; 242 when the penalty is exacted in a case in which the plaintiff initially demanded more than he sued for and recovered, a defendant railroad is arbitrarily deprived of its property for refusing to meet the initial excessive demand. 243  

Also invalidated during this period of heightened judicial scrutiny was a penalty imposed on a carrier that had collected transportation charges in excess of established maximum rates; the penalty of $500 liquidated damages plus a reasonable attorney's fee was disproportionate to actual damages and was exacted under conditions not affording the carrier an adequate opportunity to safely test the validity of the rates before liability attached. 244 Where the carrier did have an opportunity to test the reasonableness of the rate, however, and collection of an overcharge did not proceed from any belief that the rate was invalid, the Court indicated that the validity of the penalty imposed need not be tested by comparison with the amount of the overcharge. Inasmuch as a penalty is imposed as punishment for violation of law, the legislature may adjust its amount to the public wrong rather than the private injury, and the only limitation which the Fourteenth Amendment imposes is that the penalty prescribed shall not be ''so severe and oppressive as to be wholly disproportioned to the offense and obviously unreasonable.'' In accordance with the latter standard, a statute granting an aggrieved passenger (who recovered $100 for an overcharge of 60 cents) the right to recover in a civil suit not less than $50 nor more than $300 plus costs and a reasonable attorney's fee was upheld. 245  

For like reasons, the Court also upheld a statute requiring railroads to erect and maintain fences and cattle guards, and making them liable in double the amount of damages for their failure to so maintain them, 246 and another law that established a minimum rate of speed for delivery of livestock and that required every carrier violating the requirement to pay the owner of the livestock the sum of $10 per car per hour. 247 On the other hand, the Court struck down as arbitrary and oppressive assessment of fines of $100 per day (and aggregating $3,600) on a telephone company that, in accordance with its established and uncontested regulations, suspended the service of a patron in arrears. 248  

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 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 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 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 business 37 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 . . . 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 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 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 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 licensed 64 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 cigarettes 70 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 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  


[Footnote 188] Atlantic Coast Line R.R. v. Corporation Comm'n, 206 U.S. 1, 19 (1907) (citing Chicago, B. & Q. R.R. v. Iowa, 94 U.S. 155 (1877)). See also Prentis v. Atlantic Coast Line, 211 U.S. 210 (1908); Denver & R.G. R.R. v. Denver, 250 U.S. 241 (1919).

[Footnote 189] Chicago & G.T. Ry. v. Wellman, 143 U.S. 339, 344 (1892); Mississippi R.R. Comm'n v. Mobile & Ohio R.R., 244 U.S. 388, 391 (1917). See also Missouri Pacific Ry. v. Nebraska, 217 U.S. 196 (1910); Nashville, C. & St. L. Ry. v. Walters, 294 U.S. 405, 415 (1935).

[Footnote 190] Cleveland Electric Ry. v. Cleveland, 204 U.S. 116 (1907).

[Footnote 191] Detroit United Ry. v. Detroit, 255 U.S. 171 (1921). See also Denver v. New York Trust Co., 229 U.S. 123 (1913).

[Footnote 192] Los Angeles v. Los Angeles Gas Corp., 251 U.S. 32 (1919).

[Footnote 193] Newburyport Water Co. v. Newburyport, 193 U.S. 561 (1904). See also Skaneateles Water Co. v. Skaneateles, 184 U.S. 354 (1902); Helena Water Works Co. v. Helena, 195 U.S. 383 (1904); Madera Water Works v. Madera, 228 U.S. 454 (1913).

[Footnote 194] Western Union Tel. Co. v. Richmond, 224 U.S. 160 (1912).

[Footnote 195] Pierce Oil Corp. v. Phoenix Ref. Co., 259 U.S. 125 (1922).

[Footnote 196] Atlantic Coast Line R.R. v. Goldsboro, 232 U.S. 548, 558 (1914). See also Chicago, B. & Q. R.R. v. Chicago, 166 U.S. 226, 255 (1897); Chicago, B. & Q. Ry. v. Drainage Comm'rs, 200 U.S. 561, 591 -92 (1906); New Orleans Pub. Serv. v. New Orleans, 281 U.S. 682 (1930).

[Footnote 197] Consumers' Co. v. Hatch, 224 U.S. 148 (1912).

[Footnote 198] Panhandle Eastern Pipe Line Co. v. Highway Comm'n, 294 U.S. 613 (1935).

[Footnote 199] New Orleans Gas Co. v. Drainage Comm'n, 197 U.S. 453 (1905).

[Footnote 200] Norfolk Turnpike Co. v. Virginia, 225 U.S. 264 (1912).

[Footnote 201] International Bridge Co. v. New York, 254 U.S. 126 (1920).

[Footnote 202] Chicago, B. & Q. R.R. v. Nebraska, 170 U.S. 57 (1898).

[Footnote 203] Chicago, B. & Q. Ry. v. Drainage Comm'n, 200 U.S. 561 (1906); Chicago & Alton R.R. v. Tranbarger, 238 U.S. 67 (1915); Lake Shore & Mich. So. Ry. v. Clough, 242 U.S. 375 (1917).

[Footnote 204] Pacific Gas Co. v. Police Court, 251 U.S. 22 (1919).

[Footnote 205] Chicago, St. P., Mo. & O. Ry. v. Holmberg, 282 U.S. 162 (1930).

[Footnote 206] Nashville, C. & St. L. Ry. v. Walters, 294 U.S. 405 (1935). See also Lehigh Valley R.R. v. Commissioners, 278 U.S. 24, 35 (1928) (upholding imposition of grade crossing costs on a railroad although ''near the line of reasonableness,'' and reiterating that ''unreasonably extravagant'' requirements would be struck down).

[Footnote 207] Atchison T. & S.F. Ry. v. Public Util. Comm'n, 346 U.S. 346, 352 (1953).

[Footnote 208] United Gas Co. v. Railroad Comm'n, 278 U.S. 300, 308 -09 (1929). See also New York ex rel. Woodhaven Gas Light Co. v. Public Serv. Comm'n, 269 U.S. 244 (1925); New York & Queens Gas Co. v. McCall, 245 U.S. 345 (1917).

[Footnote 209] Missouri Pac. Ry. v. Kansas, 216 U.S. 262 (1910); Chesapeake & Ohio Ry. v. Public Serv. Comm'n, 242 U.S. 603 (1917); Fort Smith Traction Co. v. Bourland, 267 U.S. 330 (1925).

[Footnote 210] Chesapeake & Ohio Ry. v. Public Serv. Comm'n, 242 U.S. 603, 607 (1917); Brooks-Scanlon Co. v. Railroad Comm'n, 251 U.S. 396 (1920); Railroad Comm'n v. Eastern Tex. R.R., 264 U.S. 79 (1924); Broad River Co. v. South Carolina ex rel. Daniel, 281 U.S. 537 (1930).

[Footnote 211] Atchison, T. & S.F. Ry. v. Railroad Comm'n, 283 U.S. 380, 394 -95 (1931).

[Footnote 212] Minneapolis & St. L. R.R. v. Minnesota, 193 U.S. 53 (1904).

[Footnote 213] Gladson v. Minnesota, 166 U.S. 427 (1897).

[Footnote 214] Missouri Pac. Ry. v. Kansas, 216 U.S. 262 (1910).

[Footnote 215] Chesapeake & Ohio Ry. v. Public Serv. Comm'n, 242 U.S. 603 (1917).

[Footnote 216] Lake Erie & W. R.R. v. Public Util. Comm'n, 249 U.S. 422 (1919); Western & Atlantic R.R. v. Public Comm'n, 267 U.S. 493 (1925).

[Footnote 217] Alton R.R. v. Illinois Commerce Comm'n, 305 U.S. 548 (1939).

[Footnote 218] Missouri Pacific Ry. v. Nebraska, 217 U.S. 196 (1910).

[Footnote 219] Chesapeake & Ohio Ry. v. Public Serv. Comm'n, 242 U.S. 603, 607 (1917).

[Footnote 220] Great Northern Ry. v. Minnesota, 238 U.S. 340 (1915); Great Northern Ry. Co. v. Cahill, 253 U.S. 71 (1920).

[Footnote 221] Chicago, M. & St. P. R.R. v. Wisconsin, 238 U.S. 491 (1915).

[Footnote 222] Washington ex rel. Oregon R.R. & Nav. Co. v. Fairchild, 224 U.S. 510, 528 -29 (1912). See also Michigan Cent. R.R. v. Michigan R.R. Comm'n, 236 U.S. 615 (1915); Seaboard Air Line R.R. v. Georgia R.R. Comm'n, 240 U.S. 324, 327 (1916).

[Footnote 223] Louisville & Nashville R.R. v. Stock Yards Co., 212 U.S. 132 (1909).

[Footnote 224] Michigan Cent. R.R. v. Michigan R.R. Comm'n, 236 U.S. 615 (1915).

[Footnote 225] Chicago, M. & St. P. Ry. v. Iowa, 233 U.S. 334 (1914).

[Footnote 226] Chicago, M. & St. P. Ry. v. Minneapolis Civic Ass'n, 247 U.S. 490 (1918). Nor are railroads denied due process when they are forbidden to exact a greater charge for a shorter distance than for a longer distance. Louisville & Nashville R.R. v. Kentucky, 183 U.S. 503, 512 (1902); Missouri Pacific Ry. v. McGrew Coal Co., 244 U.S. 191 (1917).

[Footnote 227] Wadley Southern Ry. v. Georgia, 235 U.S. 651 (1915).

[Footnote 228] Railroad Co. v. Richmond, 96 U.S. 521 (1878).

[Footnote 229] Atlantic Coast Line R.R. v. Goldsboro, 232 U.S. 548 (1914).

[Footnote 230] Great Northern Ry. v. Minnesota ex rel. Clara City, 246 U.S. 434 (1918).

[Footnote 231] Denver & R. G. R.R. v. Denver, 250 U.S. 241 (1919).

[Footnote 232] Nashville, C. & St. L. Ry. v. White, 278 U.S. 456 (1929).

[Footnote 233] Nashville, C. & St. L. Ry. v. Alabama, 128 U.S. 96 (1888).

[Footnote 234] Chicago, R.I. & P. Ry. v. Arkansas, 219 U.S. 453 (1911); St. Louis, I. Mt. & So. Ry. v. Arkansas, 240 U.S. 518 (1916); Missouri Pacific R.R. v. Norwood, 283 U.S. 249 (1931); Firemen v. Chicago, R.I. & P.R.R. 393 U.S. 129 (1968).

[Footnote 235] Atlantic Coast Line R.R. v. Georgia, 234 U.S. 280 (1914).

[Footnote 236] Erie R.R. v. Solomon, 237 U.S. 427 (1915).

[Footnote 237] New York, N.H. and H.R.R. v. New York, 165 U.S. 628 (1897).

[Footnote 238] Chicago & N.W. Ry. v. Nye Schneider Fowler Co., 260 U.S. 35 (1922). See also Yazoo & Miss. V.R.R. v. Jackson Vinegar Co., 226 U.S. 217 (1912); cf. Adams Express Co. v. Croninger, 226 U.S. 491 (1913).

[Footnote 239] Atlantic Coast Line R.R. v. Glenn, 239 U.S. 388 (1915).

[Footnote 240] St. Louis & San Francisco Ry. v. Mathews, 165 U.S. 1 (1897).

[Footnote 241] Chicago & N.W. Ry. v. Nye Schneider Fowler Co., 260 U.S. 35 (1922).

[Footnote 242] Kansas City Ry. v. Anderson, 233 U.S. 325 (1914).

[Footnote 243] St. Louis, I. Mt. & So. Ry. v. Wynne, 224 U.S. 354 (1912). See also Chicago, M. & St. P. Ry. v. Polt, 232 U.S. 165 (1914).

[Footnote 244] Missouri Pacific Ry. v. Tucker, 230 U.S. 340 (1913).

[Footnote 245] St. Louis, I. Mt. & So. Ry. v. Williams, 251 U.S. 63, 67 (1919).

[Footnote 246] Missouri Pacific Ry. v. Humes, 115 U.S. 512 (1885); Minneapolis Ry. v. Beckwith, 129 U.S. 26 (1889).

[Footnote 247] Chicago, B. & Q. R.R. v. Cram, 228 U.S. 70 (1913).

[Footnote 248] Southwestern Tel. Co. v. Danaher, 238 U.S. 482 (1915).

[Footnote 1] New Orleans Debenture Redemption Co. v. Louisiana, 180 U.S. 320 (1901).

[Footnote 2] National Council U.A.M. v. State Council, 203 U.S. 151, 162 - 63 (1906).

[Footnote 3] Munday v. Wisconsin Trust Co., 252 U.S. 499 (1920).

[Footnote 4] State Farm Ins. Co. v. Duel, 324 U.S. 154 (1945).

[Footnote 5] Watson v. Employers Liability Assurance Corp., 348 U.S. 66 (1954).

[Footnote 6] Asbury Hospital v. Cass County, 326 U.S. 207 (1945).

[Footnote 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).

[Footnote 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.

[Footnote 9] International Harvester Co. v. Missouri, 234 U.S. 199 (1914). See also American Machine Co. v. Kentucky, 236 U.S. 660 (1915).

[Footnote 10] Grenada Lumber Co. v. Mississippi, 217 U.S. 433 (1910).

[Footnote 11] Aikens v. Wisconsin, 195 U.S. 194 (1904).

[Footnote 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).

[Footnote 13] Old Dearborn Co. v. Seagram Corp., 299 U.S. 183 (1936); Pep Boys v. Pyroil, 299 U.S. 198 (1936).

[Footnote 14] Safeway Stores v. Oklahoma Grocers, 360 U.S. 334 (1959).

[Footnote 15] Schmidinger v. City of Chicago, 226 U.S. 578, 588 (1913) (citing McLean v. Arkansas, 211 U.S. 539, 550 (1909)).

[Footnote 16] Merchants Exchange v. Missouri, 248 U.S. 365 (1919).

[Footnote 17] Hauge v. City of Chicago, 299 U.S. 387 (1937).

[Footnote 18] Lemieux v. Young, 211 U.S. 489 (1909); Kidd, Dater Co. v. Musselman Grocer Co., 217 U.S. 461 (1910).

[Footnote 19] Pacific States Co. v. White, 296 U.S. 176 (1935).

[Footnote 20] Schmidinger v. City of Chicago, 226 U.S. 578 (1913).

[Footnote 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).

[Footnote 22] Armor & Co. v. North Dakota, 240 U.S. 510 (1916).

[Footnote 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).

[Footnote 24] Advance-Rumely Co. v. Jackson, 287 U.S. 283 (1932).

[Footnote 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).

[Footnote 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).

[Footnote 27] Booth v. Illinois, 184 U.S. 425 (1902).

[Footnote 28] Otis v. Parker, 187 U.S. 606 (1903).

[Footnote 29] Brodnax v. Missouri, 219 U.S. 285 (1911).

[Footnote 30] House v. Mayes, 219 U.S. 270 (1911).

[Footnote 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).

[Footnote 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).

[Footnote 33] Doty v. Love, 295 U.S. 64 (1935).

[Footnote 34] Farmers Bank v. Federal Reserve Bank, 262 U.S. 649 (1923).

[Footnote 35] Griffith v. Connecticut, 218 U.S. 563 (1910).

[Footnote 36] Mutual Loan Co. v. Martell, 222 U.S. 225 (1911).

[Footnote 37] La Tourette v. McMaster, 248 U.S. 465 (1919); Stipich v. Insurance Co., 277 U.S. 311, 320 (1928).

[Footnote 38] German Alliance Ins. Co. v. Kansas, 233 U.S. 389 (1914).

[Footnote 39] O'Gorman & Young v. Hartford Ins. Co., 282 U.S. 251 (1931).

[Footnote 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).

[Footnote 41] Daniel v. Family Ins. Co., 336 U.S. 220 (1949).

[Footnote 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.

[Footnote 43] California Auto. Ass'n v. Maloney, 341 U.S. 105 (1951).

[Footnote 44] Allgeyer v. Louisiana, 165 U.S. 578 (1897).

[Footnote 45] New York Life Ins. Co. v. Dodge, 246 U.S. 357 (1918).

[Footnote 46] National Ins. Co. v. Wanberg, 260 U.S. 71 (1922).

[Footnote 47] Hartford Accident Co. v. Nelson Co., 291 U.S. 352 (1934).

[Footnote 48] Merchants Liability Co. v. Smart, 267 U.S. 126 (1925).

[Footnote 49] Orient Ins. Co. v. Daggs, 172 U.S. 577 (1899) (the statute was in effect when the contract at issue was signed).

[Footnote 50] Hooperston Co. v. Cullen, 318 U.S. 313 (1943).

[Footnote 51] German Alliance Ins. Co. v. Hale, 219 U.S. 307 (1911). See also Carroll v. Greenwich Ins. Co., 199 U.S. 401 (1905).

[Footnote 52] Life & Casualty Co. v. McCray, 291 U.S. 566 (1934).

[Footnote 53] Northwestern Life Ins. Co. v. Riggs, 203 U.S. 243 (1906).

[Footnote 54] Whitfield v. Aetna Life Ins. Co., 205 U.S. 489 (1907).

[Footnote 55] Polk v. Mutual Reserve Fund, 207 U.S. 310 (1907).

[Footnote 56] Neblett v. Carpenter, 305 U.S. 297 (1938).

[Footnote 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.''

[Footnote 58] Ferguson v. Skrupa, 372 U.S. 726 (1963).

[Footnote 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.

[Footnote 60] Williamson v. Lee Optical Co., 348 U.S. 483 (1955).

[Footnote 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.

[Footnote 62] Collins v. Texas, 223 U.S. 288 (1912); Hayman v. Galveston, 273 U.S. 414 (1927).

[Footnote 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).

[Footnote 64] Olsen v. Smith, 195 U.S. 332 (1904).

[Footnote 65] Nashville, C. & St. L. R.R. v. Alabama, 128 U.S. 96 (1888).

[Footnote 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.

[Footnote 67] Western Turf Ass'n v. Greenberg, 204 U.S. 359 (1907).

[Footnote 68] W.W. Cargill Co. v. Minnesota, 180 U.S. 452 (1901).

[Footnote 69] Lehon v. Atlanta, 242 U.S. 53 (1916).

[Footnote 70] Gundling v. Chicago, 177 U.S. 183, 185 (1900).

[Footnote 71] Bourjois, Inc. v. Chapman, 301 U.S. 183 (1937).

[Footnote 72] Weller v. New York, 268 U.S. 319 (1925).

[Footnote 73] Packer Corp. v. Utah, 285 U.S. 105 (1932).

[Footnote 74] Halter v. Nebraska, 205 U.S. 34 (1907).

[Footnote 75] McCloskey v. Tobin, 252 U.S. 107 (1920).

[Footnote 76] Natal v. Louisiana, 139 U.S. 621 (1891).

[Footnote 77] Murphy v. California, 225 U.S. 623 (1912).

[Footnote 78] Rosenthal v. New York, 226 U.S. 260 (1912).

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