AMENDMENT 14

RIGHTS OF CITIZENS

Page

Section 1. Citizenship; privileges and immunities; due process; equal protection 963

Citizens of the United States 963

Kinds and sources of citizenship 963

History 963

Judicial elucidation of the citizenship clause 964

National and State citizenship 965

Corporations 965

Privileges and immunities 965

Purpose and early history of the clause 965

Privileges and immunities of citizens of the United States 967

Privileges held not within the protection of the clause 969

Due process of law clause 971

Historical development 971

Police power: liberty: property 974

Liberty of contract--labor relations 976

Definitions 981

"Persons" defined 981

Due process and the police power 982

Definition 982

Limitations on the police power 982

"Liberty," in general 983

Definitions 983

Personal liberty: compulsory vaccination: sexual sterilization 984

Liberties pertaining to education (of teachers, parents, pupils) 984

Liberties safeguarded by the first eight amendments 985

Liberty of contract (labor relations) 985

In general 985

Laws regulating hours of labor 986

Laws regulating labor in mines 987

Laws prohibiting employment of children in hazardous occupations 987

Laws regulating payment of wages 987

Minimum wage laws 988

Workmen's compensation laws 989

Collective bargaining 991

Regulation of charges; Business affected with a Public Interest 994

History 994

Nebbia v. New York 996

Judicial review of publicly determined rates and charges 998

Development 998

Limitations on judicial review 1000

Ben Avon Case 1003

History of the valuation question 1004

Regulation of public utilities (other than rates) 1008

In general 1008

Compulsory expenditures 1009

Grade crossings and other expenditures by railroads 1010

Compellable services 1011

Intercompany railway service 1012

Intercompany discriminatory service charges 1013

Safety regulations applicable to railroads 1014

Liabilities and penalties 1014

Regulation of corporations, business, professions, and trades 1016

Domestic corporations 1016

Foreign corporations 1016

Business in general 1017

Laws prohibiting trusts, discrimination, restraint of trade 1017

Statutes preventing fraud in sale of goods 1018

Blue sky laws; laws regulating boards of trade, etc. 1019

Trading stamps 1019

Banking 1020

Loans, interest, assignments 1020

Insurance 1021

Professions, trades, occupations 1023

Pharmacies 1023

Miscellaneous business, professions, trades, and occupations 1023

Protection of resources of the State 1025

Oil and gas 1025

Protection of property damaged by mining or drilling of wells 1026

Water 1026

Apple and citrus fruit industries 1026

Fish and game 1027

Limitations on ownership 1027

Zoning, building lines, etc. 1027

Safety regulations 1029

Police power 1029

General 1029

Health measures 1030

Protection of water supply 1030

Garbage 1030

Sewers 1030

Food and Drugs, etc. 1030

Milk 1030

Protection of public morals 1031

Gambling and lotteries 1031

Red light districts 1031

Sunday blue laws 1031

Intoxicating liquor 1031

Regulation of motor vehicles and motor carriers 1032

Succession to property 1033

Administration of estates 1034

Abandoned property 1034

Vested rights, remedial rights; political candidacy 1034

Man's best friend 1035

Control of local units of government 1035

Taxation 1036

In general 1036

Public purpose 1036

Other considerations affecting validity: excessive burden; ration of amount to benefit received 1037

Estate, gift and inheritance taxes 1037

Other types of taxes 1036

Income taxes 1036

Franchise taxes 1036

Severance taxes 1036

Real property taxes (assessment) 1036

Real property taxes (special assessments) 1040

Jurisdiction to tax 1041

Land 1041

Tangible personalty 1041

Intangible personalty 1042

General 1042

Taxes on intangibles sustained 1042

Taxes on intangibles invalidated 1044

Transfer taxes (inheritance, estate, gift taxes) 1045

Corporation taxes 1049

Intangible personal property 1049

Privilege taxes measured by corporate stock 1050

Privilege taxes measured by gross receipts 1051

Taxes on tangible personal property 1052

Income and other taxes 1053

Individual incomes 1053

Incomes of foreign corporations 1054

Chain store taxes 1055

Insurance company taxes 1055

Procedure in taxation 1056

In general 1056

Notice and hearing in relation to general taxes 1057

Notice and hearing in relation to assessments 1057

Notice and hearing in relation to special assessments 1058

Sufficiency and manner of giving notice 1060

Sufficiency of remedy 1060

Laches 1061

Collection of taxes 1061

Eminent Domain 1062

Historical development 1062

Public use 1063

Necessity for a taking 1064

What constitutes a taking for a public use 1064

Just compensation 1066

Uncompensated takings 1067

Consequential damages 1067

Limits to the above rule 1068

Due process in eminent domain 1069

Notice 1069

Hearing 1069

Occupation in advance of condemnation 1070

Due process in civil proceedings 1070

Some general criteria 1070

Ancient usage and uniformity 1070

Equality 1071

Due process and judicial process 1071

Jurisdiction 1072

In general 1072

How perfected: by voluntary appearance or service of process 1072

Service of process in actions in personam: individuals, resident and nonresident 1073

Suits in personam 1075

Suability of foreign corporations 1075

Service of process 1080

Actions in rem--proceedings against land 1080

Actions in rem--attachment proceedings 1081

Actions in rem--corporations, estates, trusts, etc. 1081

Actions in rem--divorce proceedings 1083

Misnomer of defendant--false return, etc. 1083

Notice and hearing 1084

Legislative proceedings 1084

Administrative proceedings 1084

Statutory proceedings 1087

Judicial proceedings 1087

Sufficiency of notice and hearing 1088

Power of States to regulate procedure 1089

Generally 1089

Pleading and practice 1089

Commencement of actions 1089

Pleas in abatement 1090

Defenses 1090

Amendments and continuances 1091

Costs, damages, and penalties 1091

Statutes of limitation 1092

Evidence and presumptions 1093

Jury trials: dispensing with trials 1096

Due process in criminal proceedings 1096

General 1096

Indefinite statutes: right of accused to knowledge of offense 1097

Abolition of the grand jury 1098

Right to counsel 1098

Right to trial by jury 1109

Self-incrimination: forced confessions 1111

Unreasonable searches and seizures 1121

Conviction based on perjured testimony 1124

Confrontation: presence of the accused; public trial 1126

Trial by impartial tribunal 1131

Other attributes of a fair trial 1132

Excessive bail, cruel and unusual punishment, sentence 1133

Double jeopardy 1135

Rights of prisoners 1137

Access to the courts 1137

Appeals: corrective process 1137

Due process: miscellaneous 1139

Appeals 1139

Federal review of State procedure 1140

Equal protection of the laws 1141

Definition of terms 1141

What constitutes State action 1141

"Persons" 1142

"Within its jurisdiction" 1143

"Equal protection of the laws" 1144

Legislative classifications 1145

Taxation 1146

Classifications for the purpose of taxation 1147

Foreign corporations 1149

Income taxes 1150

Inheritance taxes 1150

Motor vehicle taxes 1151

Poll taxes 1152

Property taxes 1152

Special assessment 1152

Police power 1153

Classification 1153

Administrative discretion 1157

Alien laws 1157

Labor relations 1158

Monopolies 1160

Punishment for crime 1160

Segregation 1161

Political rights 1163

Procedure 1165

General doctrine 1165

Access to courts 1166

Corporations 1166

Expenses of litigation 1167

Selection of jury 1167

Section 2. Apportionment of representation 1170

In general 1171

"Indians not taxed" 1171

Right to vote 1172

Reduction of State's representation 1172

Section 3. Disqualification of officers 1173

In general 1173

Section 4. Public debt, etc. 1174

Section 5. Enforcement 1175

Scope of the provision 1175

RIGHTS OF CITIZENS

Amendment 14

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Citizens of the United States

KIND AND SOURCES OF CITIZENSHIP

There are three categories of persons who, if subject to the jurisdiction of the United States, are citizens thereof: (1) those who are born citizens, of whom there are two classes, those who are born in the United States and those who are born abroad of American parentage; (2) those who achieve citizenship by qualifying for it in accordance with the naturalization statutes; (3) those who have citizenship thrust upon them, such as the members of certain Indian tribes and the inhabitants of certain dependencies of the United States. In the present connection we are interested in those who are citizens by virtue of birth in the United States.[1]

HISTORY

In the famous Dred Scott Case,[2] Chief Justice Taney had ruled that United States citizenship was enjoyed by two classes of individuals: (1) white persons born in the United States as descendants of "persons, who were at the time of the adoption of the Constitution recognized as citizens in the several States and [who] became also citizens of this new political body," the United States of America, and (2) those who, having been "born outside the dominions of the United States," had migrated thereto and been naturalized therein. The States were competent, he conceded, to confer State citizenship upon anyone in their midst, but could not make the recipient of such status a citizen of the United States. The Negro, however, according to the Chief Justice, was ineligible to attain United States citizenship either from a State or by virtue of birth in the United States, even as a free man descended from a Negro residing as a free man in one of the States at the date of ratification of the Constitution. That basic document did not contemplate the possibility of Negro citizenship.[3] By the Fourteenth Amendment this deficiency of the original Constitution was cured.[4]

JUDICIAL ELUCIDATION OF THE CITIZENSHIP CLAUSE

By the decision in 1898 in United States v. Wong Kim Ark,[5] all children born in the United States to aliens, even temporary sojourners, if they are not exempt from territorial jurisdiction, are citizens irrespective of race or nationality. But children born in the United States to alien enemies in hostile occupation or to diplomatic representatives of a foreign state, not being "subject to the jurisdiction thereof," i.e., of the United States, are not citizens.[6] Likewise persons born on a public vessel of a foreign country while within the waters of the United States are not considered as having been born within the jurisdiction of the United States, and hence are not citizens thereof.[7] Conversely, a Chinese born on the high seas aboard an American vessel of Chinese parents residing in the United States was declared not to be a citizen on the ground of not having been born "in the United States."[8] But a child who was born in like circumstances of parents who were citizens of the United States was declared, shortly before the Civil War, to be a citizen thereof.[9]

NATIONAL AND STATE CITIZENSHIP

With the ratification of the Fourteenth Amendment a distinction between citizenship of the United States and citizenship of a State was clearly recognized and established. "Not only may a man be a citizen of the United States without being a citizen of a State, but an important element is necessary to convert the former into the latter. He must reside within the State to make him a citizen of it, but it is only necessary that he should be born or naturalized in the United States to be a citizen of the Union. It is quite clear, then, that there is a citizenship of the United States, and a citizenship of a State, which are distinct from each other, and which depend upon different characteristics or circumstances in the individual."[10] National citizenship, although not created by this amendment, was thereby made "paramount and dominant."[11]

CORPORATIONS

Citizens of the United States within the meaning of this article must be natural and not artificial persons; a corporate body is not a citizen of the United States.[12]

Privileges and Immunities

PURPOSE AND EARLY HISTORY OF THE CLAUSE

Unique among constitutional provisions, the privileges and immunities clause of the Fourteenth Amendment enjoys the distinction of having been rendered a "practical nullity" by a single decision of the Supreme Court rendered within five years after its ratification. In the Slaughter-House Cases[13] a bare majority of the Court frustrated the aims of the most aggressive sponsors of this clause, to whom was attributed an intention to centralize "in the hands of the Federal Government large powers hitherto exercised by the States" with a view to enabling business to develop unimpeded by State interference. This expansive alteration of the Federal System was to have been achieved by converting the rights of the citizens of each State as of the date of the adoption of the Fourteenth Amendment into privileges and immunities of United States citizenship and thereafter perpetuating this newly defined status quo through judicial condemnation of any State law challenged as "abridging" any one of the latter privileges. To have fostered such intentions, the Court declared, would have been "to transfer the security and protection of all the civil rights * * * to the Federal Government, * * * to bring within the power of Congress the entire domain of civil rights heretofore belonging exclusively to the States," and to "constitute this court a perpetual censor upon all legislation of the States, on the civil rights of their own citizens, with authority to nullify such as it did not approve as consistent with those rights, as they existed at the time of the adoption of this amendment * * * [The effect of] so great a departure from the structure and spirit of our institutions; * * * is to fetter and degrade the State governments by subjecting them to the control of Congress, in the exercise of powers heretofore universally conceded to them of the most ordinary and fundamental character; * * * We are convinced that no such results were intended by the Congress * * *, nor by the legislatures * * * which ratified" this amendment, and that the sole "pervading purpose" of this and the other War Amendments was "the freedom of the slave race."

Conformably to these conclusions the Court advised the New Orleans butchers that the Louisiana statute conferring on a single corporation a monopoly of the business of slaughtering cattle abrogated no rights possessed by them as United States citizens and that insofar as that law interfered with their claimed privilege of pursuing the lawful calling of butchering animals, the privilege thus terminated was merely one of "those which belonged to the citizens of the States as such, and" that these had been "left to the State governments for security and protection" and had not been by this clause "placed under the special care of the Federal Government." The only privileges which the latter clause expressly protected against State encroachment were declared to be those "which owe their existence to the Federal Government, its National character, its Constitution, or its laws."—privileges, indeed, which had been available to United States citizens even prior to the adoption of the Fourteenth Amendment; and inasmuch as under the principle of federal supremacy no State ever was competent to interfere with their enjoyment, the privileges and immunities clause of the Fourteenth Amendment was thereby reduced to a superfluous reiteration of a prohibition already operative against the States.[14]

PRIVILEGES AND IMMUNITIES OF CITIZENS OF THE UNITED STATES

Although the Court has expressed a reluctance to attempt a definitive enumeration of those privileges and immunities of United States citizens such as are protected against State encroachment, it nevertheless felt obliged in the Slaughter-House Cases "to suggest some which owe their existence to the Federal Government, its National character, its Constitution, or its laws." Among those then identified were the following: right of access to the seat of Government, and to the seaports, subtreasuries, land offices, and courts of justice in the several States; right to demand protection of the Federal Government on the high seas, or abroad; right of assembly and privilege of the writ of habeas corpus; right to use the navigable waters of the United States; and rights secured by treaty.[15]

In a later listing in Twining v. New Jersey,[16] decided in 1908, the Court recognized "among the rights and privileges" of national citizenship the following: The right to pass freely from State to State;[17] the right to petition Congress for a redress of grievances;[18] the right to vote for national officers;[19] the right to enter public lands;[20] the right to be protected against violence while in the lawful custody of a United States marshal;[21] and the right to inform the United States authorities of violations of its laws.[22] Earlier in a decision not referred to in the aforementioned enumeration, the Court had also acknowledged that the carrying on of interstate commerce is "a right which every citizen of the United States is entitled to exercise."[23]

During the past fifteen years this clause has been accorded somewhat uneven treatment by the Court which, on two occasions at least, has manifested a disposition to magnify the restraint which it imposes on State action by enlarging previous enumerations of the privileges protected thereby. In Hague v. C.I.O.,[24] decided in 1939, the Court affirmed that freedom to use municipal streets and parks for the dissemination of information concerning provisions of a federal statute and to assemble peacefully therein for discussion of the advantages and opportunities offered by such act was a privilege and immunity of a United States citizen. The latter privilege was deemed to have been abridged by city officials who acted in pursuance of a void ordinance which authorized a director of safety to refuse permits for parades or assemblies on streets or parks whenever he believed riots could thereby be avoided and who forcibly evicted from their city union organizers who sought to use the streets and parks for the aforementioned purposes.[25] Again in Edwards v. California,[26] four Justices[27] who concurred in the judgment that a California statute restricting the entry of indigent migrants was unconstitutional preferred to rest their decision on the ground that the act interfered with the right of citizens to move freely from State to State. In thus rejecting the commerce clause, relied on by the majority as the basis for disposing of this case, the minority thereby resurrected an issue first advanced in the old decision of Crandall v. Nevada[28] and believed to have been resolved in favor of the commerce clause by Helson and Randolph v. Kentucky.[29] Colgate v. Harvey,[30] however, which was decided in 1935 and overruled in 1940,[31] represented the first attempt by the Court since adoption of the Fourteenth Amendment to convert the privileges and immunities clause into a source of protection of other than those "interests growing out of the relationship between the citizen and the national government." Here the Court declared that the right of a citizen, resident in one State, to contract in another, to transact any lawful business, or to make a loan of money, in any State other than that in which the citizen resides was a privilege of national citizenship which was abridged by a State income tax law excluding from taxable income interest received on money loaned within the State.[32] Whether or not this overruled precedent is again to be revived and the privileges and immunities clause again placed in readiness for further expansion cannot yet be determined with assurance; but in Oyama v. California,[33] decided in 1948, the Court, in a single sentence, affirmed the contention of a native-born youth that California's Alien Land Law, applied so as to work a forfeiture of property purchased in his name with funds advanced by his parent, a Japanese alien ineligible to citizenship and precluded from owning land by the terms thereof, deprived him "of his privileges as an American citizen." In none of the previous enumerations has the right to acquire and retain property been set forth as one of the privileges of American citizenship protected against State abridgment; nor is any connection readily discernible between this right and the "relationship between the citizen and the national government." However, the right asserted by Oyama was supported by a "federal statute enacted before the Fourteenth Amendment" which provided that "all citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to * * * purchase, * * * and hold * * * real * * * property."[34]

PRIVILEGES HELD NOT WITHIN THE PROTECTION OF THE CLAUSE

In the following cases State action was upheld against the challenge that it abridged the immunities or privileges of citizens of the United States:

(1) Statute limiting hours of labor in mines.[35]

(2) Statute taxing the business of hiring persons to labor outside the State.[36]

(3) Statute requiring employment of only licensed mine managers and examiners, and imposing liability on the mine owner for failure to furnish a reasonably safe place for workmen.[37]

(4) Statute restricting employment under public works of the State to citizens of the United States, with a preference to citizens of the State.[38]

(5) Statute making railroads liable to employees for injuries caused by negligence of fellow servants, and abolishing the defense of contributory negligence.[39]

(6) Statute prohibiting a stipulation against liability for negligence in delivery of interstate telegraph messages.[40]

(7) Refusal of State court to license a woman to practice law.[41]

(8) Law taxing in the hands of a resident citizen a debt owing from a resident of another State and secured by mortgage of land in the debtors' State.[42]

(9) Statutes regulating the manufacture and sale of intoxicating liquors.[43]

(10) Statute regulating the method of capital punishment.[44]

(11) Statute restricting the franchise to male citizens.[45]

(12) Statute requiring persons coming into a State to make a declaration of intention to become citizens and residents thereof before being permitted to register as voters.[46]

(13) Statute restricting dower, in case wife at time of husband's death is a nonresident, to lands of which he died seized.[47]

(14) Statute restricting right to jury trial in civil suits at common law.[48]

(15) Statute restricting drilling or parading in any city by any body of men without license of the Governor. "The right voluntarily to associate together as a military company or organization, or to drill * * *, without, and independent of, an act of Congress or law of the State authorizing the same, is not an attribute of national citizenship."[49]

(16) Provision for prosecution upon information, and for a jury (except in capital cases) of eight persons.[50] Upon an extended review of the cases, the Court held that "the privileges and immunities of citizens of the United States do not necessarily include all the rights protected by the first eight amendments to the Federal Constitution against the powers of the Federal Government"; and specifically, that the right to be tried for an offense only upon indictment, and by a jury of 12, rests with the State governments and is not protected by the Fourteenth Amendment. "Those are not distinctly privileges or immunities [of national citizenship] where everyone has the same as against the Federal Government, whether citizen or not." Similarly, freedom from testimonial compulsion, or self-incrimination, is not "an immunity that is protected by the Fourteenth Amendment against State invasion."[51]

(17) Statute penalizing the becoming or remaining a member of any oath-bound association (other than benevolent orders, etc.,) with knowledge that the association has failed to file its constitution and membership lists. The privilege of remaining a member of such an association, "if it be a privilege arising out of citizenship at all," is an incident of State rather than United States citizenship.[52]

(18) Statute allowing a State to appeal in criminal cases for errors of law and to retry the accused.[53]

(19) Statute making the payment of poll taxes a prerequisite to the right to vote.[54]

(20) Statute whereby deposits in banks outside the State are taxed at 50¢ per $100 and deposits in banks within the State are taxed at 10¢ per $100. "* * * the right to carry out an incident to a trade, business or calling such as the deposit of money in banks is not a privilege of national citizenship."[55]

(21) The right to become a candidate for State office is a privilege of State citizenship, not national citizenship.[56]

(22) The Illinois Election Code which requires that a petition to form and nominate candidates for a new political party be signed by at least 200 voters from each of at least 50 of the 102 counties in the State, notwithstanding that 52% of the voters reside in only one county and 87%, in the 49 most populous counties.[57]

Due Process of Law Clause

HISTORICAL DEVELOPMENT

Although many years after ratification the Court ventured the not very informative observation that the Fourteenth Amendment "operates to extend * * * the same protection against arbitrary State legislation, affecting life, liberty and property, as is offered by the Fifth Amendment,"[58] and that "ordinarily if an act of Congress is valid under the Fifth Amendment it would be hard to say that a State law in like terms was void under the Fourteenth,"[59] the significance of the due process clause as a restraint on State action appears to have been grossly underestimated by litigants no less than by the Court in the years immediately following its adoption. From the outset of our constitutional history due process of law as it occurs in the Fifth Amendment had been recognized as a restraint upon government, but, with one conspicuous exception,[60] only in the narrower sense that a legislature must provide "due process for the enforcement of law"; and it was in accordance with this limited appraisal of the clause that the Court disposed of early cases arising thereunder.

Thus, in the Slaughter-House Cases,[61] in which the clause was timidly invoked by a group of butchers challenging on several grounds the validity of a Louisiana statute which conferred upon one corporation the exclusive privilege of butchering cattle in New Orleans, the Court declared that the prohibition against a deprivation of property "has been in the Constitution since the adoption of the Fifth Amendment, as a restraint upon the Federal power. It is also to be found in some form of expression in the constitutions of nearly all the States, as a restraint upon the power of the States. * * * We are not without judicial interpretation, therefore, both State and National, of the meaning of this clause. And it is sufficient to say that under no construction of that provision that we have ever seen, or any that we deem admissible, can the restraint imposed by the State of Louisiana upon the exercise of their trade by the butchers of New Orleans be held to be a deprivation of property within the meaning of that provision."[62] Four years later, in Munn v. Illinois,[63] the Court again refused to interpret the due process clause as invalidating State legislation regulating the rates charged for the transportation and warehousing of grain. Overruling contentions that such legislation effected an unconstitutional deprivation of property by preventing the owner from earning a reasonable compensation for its use and by transferring to the public an interest in a private enterprise, Chief Justice Waite emphasized that "the great office of statutes is to remedy defects in the common law as they are developed, * * * We know that this power [of rate regulation] may be abused; but that is no argument against its existence. For protection against abuses by legislatures the people must resort to the polls, not to the courts."[64]

Deploring such attempts, nullified consistently in the preceding cases, to convert the due process clause into a substantive restraint on the powers of the States, Justice Miller in Davidson v. New Orleans[65] obliquely counseled against a departure from the conventional application of the clause, albeit he acknowledged the difficulty of arriving at a precise, all inclusive, definition thereof. "It is not a little remarkable," he observed, "that while this provision has been in the Constitution of the United States, as a restraint upon the authority of the Federal Government, for nearly a century, and while, during all that time, the manner in which the powers of that government have been exercised has been watched with jealousy, and subjected to the most rigid criticism in all its branches, this special limitation upon its powers has rarely been invoked in the judicial forum or the more enlarged theatre of public discussion. But while it has been part of the Constitution, as a restraint upon the power of the States, only a very few years, the docket of this court is crowded with cases in which we are asked to hold that State courts and State legislatures have deprived their own citizens of life, liberty, or property without due process of law. There is here abundant evidence that there exists some strange misconception of the scope of this provision as found in the Fourteenth Amendment. In fact, it would seem, from the character of many of the cases before us, and the arguments made in them, that the clause under consideration is looked upon as a means of bringing to the test of the decision of this court the abstract opinions of every unsuccessful litigant in a State court of the justice of the decision against him, and of the merits of the legislation on which such a decision may be founded. If, therefore, it were possible to define what it is for a State to deprive a person of life, liberty, or property without due process of law, in terms which would cover every exercise of power thus forbidden to the State, and exclude those which are not, no more useful construction could be furnished by this or any other court to any part of the fundamental law. But, apart from the imminent risk of a failure to give any definition which would be at once perspicuous, comprehensive, and satisfactory, there is wisdom, * * *, in the ascertaining of the intent and application of such an important phrase in the Federal Constitution, by the gradual process of judicial inclusion and exclusion, as the cases presented for decision shall require, * * *"[66]

In thus persisting in its refusal to review, on other than procedural grounds, the constitutionality of State action, the Court was rejecting additional business; but a bare half-dozen years later, in again reaching a result in harmony with past precedents, the Justices gave fair warning of the imminence of a modification of their views. Thus, after noting that the due process clause, by reason of its operation upon "all the powers of government, legislative as well as executive and judicial," could not be appraised solely in terms of the "sanction of settled usage," Justice Mathews, speaking for the Court in Hurtado v. California,[67] declared that, "arbitrary power, enforcing its edicts to the injury of the persons and property of its subjects, is not law, whether manifested as the decree of a personal monarch or of an impersonal multitude. And the limitations imposed by our constitutional law upon the action of the governments, both State and national, are essential to the preservation of public and private rights, notwithstanding the representative character of our political institutions. The enforcement of these limitations by judicial process is the device of self-governing communities to protect the rights of individuals and minorities, as well against the power of numbers, as against the violence of public agents transcending the limits of lawful authority, even when acting in the name and wielding the force of the government."[68] Thus were the States put on notice that every species of State legislation, whether dealing with procedural or substantive rights, was subject to the scrutiny of the Court when the question of its essential justice is raised.

Police Power: Liberty: Property

What induced the Court to dismiss its fears of upsetting the balance in the distribution of powers under the Federal System and to enlarge its own supervisory powers over state legislation were the appeals more and more addressed to it for adequate protection of property rights against the remedial social legislation which the States were increasingly enacting in the wake of industrial expansion. At the same time the added emphasis on the due process clause which satisfaction of these requests entailed afforded the Court an opportunity to compensate for its earlier virtual nullification of the privileges and immunities clause of the amendment. So far as such modification of its position needed to be justified in legal terms, theories concerning the relation of government to private rights were available to demonstrate the impropriety of leaving to the state legislatures the same ample range of police power they had enjoyed prior to the Civil War. Preliminary, however, to this consummation the Slaughter-House Cases and Munn v. Illinois had to be overruled in part, at least, and the views of the dissenting Justices in those cases converted into majority doctrine.

About twenty years were required to complete this process, in the course of which the restricted view of the police power advanced by Justice Field in his dissent in Munn v. Illinois,[69] namely, that it is solely a power to prevent injury, was in effect ratified by the Court itself. This occurred in 1887, in Mugler v. Kansas,[70] where the power was defined as embracing no more than the power to promote public health, morals, and safety. During the same interval, ideas embodying the social compact and natural rights, which had been espoused by Justice Bradley in his dissent in the Slaughter-House Cases,[71] had been transformed tentatively into constitutionally enforceable limitations upon government,[72] with the consequence that the States, in exercising their police power, could foster only those purposes of health, morals, and safety which the Court had enumerated and could employ only such means as would not unreasonably interfere with the fundamental natural rights of liberty and property, which Justice Bradley had equated with freedom to pursue a lawful calling and to make contracts for that purpose.[73]

So having narrowed the scope of the State's police power in deference to the natural rights of liberty and property, the Court next proceeded to read into the latter currently accepted theories of laissez faire economics, reinforced by the doctrine of evolution as elaborated by Herbert Spencer, to the end that "liberty", in particular, became synonymous with governmental hands-off in the field of private economic relations. In Budd v. New York,[74] decided in 1892, Justice Brewer in a dictum declared: "The paternal theory of government is to me odious. The utmost possible liberty to the individual, and the fullest possible protection to him and his property, is both the limitation and duty of government." And to implement this point of view the Court next undertook to water down the accepted maxim that a State statute must be presumed to be valid until clearly shown to be otherwise.[75] The first step was taken with the opposite intention. This occurred in Munn v. Illinois,[76] where the Court, in sustaining the legislation before it, declared: "For our purposes we must assume that, if a state of facts could exist that would justify such legislation, it actually did exist when the statute now under consideration was passed."[77] Ten years later, in Mugler v. Kansas[78] this procedure was improved upon, and a State-wide anti-liquor law was sustained on the basis of the proposition that deleterious social effects of the excessive use of alcoholic liquors were sufficiently notorious for the Court to be able to take notice of them; that is to say, for the Court to review and appraise the considerations which had induced the legislature to enact the statute in the first place.[79] However, in Powell v. Pennsylvania,[80] decided the following year, the Court, being confronted with a similar act involving oleomargarine, concerning which it was unable to claim a like measure of common knowledge, fell back upon the doctrine of presumed validity, and declaring that "it does not appear upon the face of the statute, or from any of the facts of which the Court must take judicial cognizance, that it infringes rights secured by the fundamental law, * * *"[81] sustained the measure.

In contrast to the presumed validity rule under which the Court ordinarily is not obliged to go beyond the record of evidence submitted by the litigants in determining the validity of a statute, the judicial notice principle, as developed in Mugler v. Kansas, carried the inference that unless the Court, independently of the record, is able to ascertain the existence of justifying facts accessible to it by the rules governing judicial notice, it will be obliged to invalidate a police power regulation as bearing no reasonable or adequate relation to the purposes to be subserved by the latter; namely, health, morals, or safety. For appraising State legislation affecting neither liberty nor property, the Court found the rule of presumed validity quite serviceable; but for invalidating legislation constituting governmental interference in the field of economic relations, and, more particularly, labor-management relations, the Court found the principle of judicial notice more advantageous. This advantage was enhanced by the disposition of the Court, in litigation embracing the latter type of legislation, to shift the burden of proof from the litigant charging unconstitutionality to the State seeking enforcement. To the latter was transferred the task of demonstrating that a statute interfering with the natural right of liberty or property was in fact "authorized" by the Constitution and not merely that the latter did not expressly prohibit enactment of the same.

Liberty of Contract—Labor Relations

Although occasionally acknowledging in abstract terms that freedom of contract is not absolute but is subject to restraint by the State in the exercise of its police powers, the Court, in conformity with the aforementioned theories of economics and evolution, was in fact committed to the principle that freedom of contract is the general rule and that legislative authority to abridge the same could be justified only by exceptional circumstances. To maintain such abridgments at a minimum, the Court intermittently employed the rule of judicial notice in a manner best exemplified by a comparison of the early cases of Holden v. Hardy[82] and Lochner v. New York,[83] decisions which bear the same relation to each other as Powell v. Pennsylvania[84] and Mugler v. Kansas.[85]

In Holden v. Hardy, decided in 1898, the Court, in reliance upon the principle of presumed validity, allowed the burden of proof to remain with those attacking the validity of a statute and upheld a Utah act limiting the period of labor in mines to eight hours per day. Taking cognizance of the fact that labor below the surface of the earth was attended by risk to person and to health and for these reasons had long been the subject of State intervention, the Court registered its willingness to sustain a limitation on freedom of contract which a State legislature had adjudged "necessary for the preservation of health of employees," and for which there were "reasonable grounds for believing that * * * [it was] supported by the facts."[86]

Seven years later, however, a radically altered court was predisposed in favor of the doctrine of judicial notice, through application of which it arrived at the conclusion, in Lochner v. New York, that a law restricting employment in bakeries to ten hours per day and 60 hours per week was an unconstitutional interference with the right of adult laborers, sui juris, to contract with respect to their means of livelihood. Denying that in so holding that the Court was in effect substituting its own judgment for that of the legislature, Justice Peckham, nevertheless, maintained that whether the act was within the police power of the State was a "question that must be answered by the Court"; and then, in disregard of the accumulated medical evidence proffered in support of the act, uttered the following observation: "In looking through statistics regarding all trades and occupations, it may be true that the trade of a baker does not appear to be as healthy as some trades, and is also vastly more healthy than still others. To the common understanding the trade of a baker has never been regarded as an unhealthy one. * * * It might be safely affirmed that almost all occupations more or less affect the health. * * * But are we all, on that account, at the mercy of the legislative majorities?"[87]

Of two dissenting opinions filed in the case, one, prepared by Justice Harlan, stressed the abundance of medical testimony tending to show that the life expectancy of bakers was below average, that their capacity to resist diseases was low, and that they were peculiarly prone to suffer irritations of the eyes, lungs, and bronchial passages; and concluded that the very existence of such evidence left the reasonableness of the measure under review open to discussion and that the the latter fact, of itself, put the statute within legislative discretion. "'Responsibility,' according to Justice Harlan, 'therefore, rests upon the legislators, not upon the courts. No evils arising from such legislation could be more far reaching than those that might come to our system of government if the judiciary, abandoning the sphere assigned to it by the fundamental law, should enter the domain of legislation, and upon grounds merely of justice or reason or wisdom annul statutes that had received the sanction of the people's representatives. * * * The public interest imperatively demand—that legislative enactments should be recognized and enforced by the courts as embodying the will of the people, unless they are plainly and palpably beyond all question in violation of the fundamental law of the Constitution.'"[88]

The second dissenting opinion written by Justice Holmes has received the greater measure of attention, however, for the views expressed therein were a forecast of the line of reasoning to be followed by the Court some decades later. According to Justice Holmes: "This case is decided upon an economic theory which a large part of the country does not entertain. If it were a question whether I agreed with that theory, I should desire to study it further and long before making up my mind. But I do not conceive that to be my duty, because I strongly believe that my agreement or disagreement has nothing to do with the right of a majority to embody their opinions in law. It is settled by various decisions of this Court that State constitutions and State laws may regulate life in many ways which we as legislators might think as injudicious or if you like as tyrannical as this, and which equally with this interfere with the liberty to contract. * * * The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics. * * * But a Constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire. It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution * * * I think that the word 'liberty,' in the Fourteenth Amendment is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law."[89]

In part, Justice Holmes's criticism of his colleagues was unfair, for his "rational and fair man" could not function in a vacuum, and, in appraising the constitutionality of State legislation, could no more avoid being guided by his preferences or "economic predilections" than were the Justices constituting the majority. Insofar as he was resigned to accept the broader conception of due process of law in preference to the historical concept thereof as pertaining to the enforcement rather than the making of law and did not affirmatively advocate a return to the maxim that the possibility of abuse is no argument against possession of a power, Justice Holmes, whether consciously or not, was thus prepared to observe, along with his opponents in the majority, the very practices which were deemed to have rendered inevitable the assumption by the Court of a "perpetual censorship" over State legislation. The basic distinction, therefore, between the positions taken by Justice Peckham for the majority and Justice Holmes, for what was then the minority, was the espousal of the conflicting doctrines of judicial notice by the former and of presumed validity by the latter.

Although the Holmes dissent bore fruit in time in the form of the Bunting v. Oregon[90] and Muller v. Oregon[91] decisions overruling the Lochner Case, the doctrinal approach employed in the earlier of these by Justice Brewer continued to prevail until the depression in the 1930's. In view of the shift in the burden of proof which application of the principle of judicial notice entailed, counsel defending the constitutionality of social legislation developed the practice of submitting voluminous factual briefs replete with medical or other scientific data intended to establish beyond question a substantial relationship between the challenged statute and public health, safety, or morals. Whenever the Court was disposed to uphold measures pertaining to industrial relations, such as laws limiting hours[92] of work, it generally intimated that the facts thus submitted by way of justification had been authenticated sufficiently for it to take judicial cognizance thereof; but whenever it chose to invalidate comparable legislation, such as enactments establishing minimum wages for women and children,[93] it brushed aside such supporting data, proclaimed its inability to perceive any reasonable connection between the statute and the legitimate objectives of health or safety, and condemned the former as an arbitrary interference with freedom of contract.

During the great Depression, however, the laissez faire tenet of self-help was supplanted by the belief that it is peculiarly the duty of government to help those who are unable to help themselves; and to sustain remedial legislation enacted in conformity with the latter philosophy, the Court had to revise extensively its previously formulated concepts of "liberty" under the due process clause. Not only did the Court take judicial notice of the demands for relief arising from the depression when it overturned prior holdings and sustained minimum wage legislation,[94] but in upholding State legislation designed to protect workers in their efforts to organize and bargain collectively, the Court virtually had to exclude from consideration the employer's contention that such legislation interfered with his liberty of contract in contravention of the due process clause and to exalt as a fundamental right the correlative liberty of employees, which right the State legislatures were declared to be competent to protect against interference from private sources. To enable these legislatures to balance the equities, that is, to achieve equality in bargaining power between employer and employees, the Court thus sanctioned a diminution of liberty in the sense of the employer's freedom of contract and a corresponding increase in the measure of liberty enjoyable by the workers. To the extent that it acknowledged that liberty of the individual may be infringed by the coercive conduct of other individuals no less than by the arbitrary action of public officials, the Court in effect transformed the due process clause into a source of encouragement to State legislatures to intervene affirmatively by way of mitigating the effects of such coercion. By such modification of its views, liberty, in the constitutional sense of freedom resulting from restraint upon government, was replaced by the civil liberty which an individual enjoys by virtue of the restraints which government, in his behalf, imposes upon his neighbors.

DEFINITIONS

"Persons" Defined

Notwithstanding the historical controversy that has been waged as to whether the framers of the Fourteenth Amendment intended the word, "person," to mean only natural persons, or whether the word, "person," was substituted for the word, "citizen," with a view to protecting corporations from oppressive state legislation,[95] the Supreme Court, as early as the Granger cases,[96] decided in 1877, upheld on the merits various state laws without raising any question as to the status of railway corporation-plaintiffs to advance due process contentions. There is no doubt that a corporation may not be deprived of its property without due process of law;[97] and although prior decisions have held that the "liberty" guaranteed by the Fourteenth Amendment is the liberty of natural, not artificial, persons,[98] nevertheless a newspaper corporation was sustained, in 1936, in its objection that a state law deprived it of liberty of press.[99] As to the natural persons protected by the due process clause, these include all human beings regardless of race, color, or citizenship.[100]

Ordinarily, the mere interest of an official as such, in contrast to an actual injury sustained by a natural or artificial person through invasion of personal or property rights, has not been deemed adequate to enable him to invoke the protection of the Fourteenth Amendment against State action.[101] Similarly, municipal corporations are viewed as having no standing "to invoke the provisions of the Fourteenth Amendment in opposition to the will of their creator," the State.[102] However, State officers are acknowledged to have an interest, despite their not having sustained any "private damage," in resisting an "endeavor to prevent the enforcement of laws in relation to which they have official duties," and, accordingly, may apply to federal courts for the "review of decisions of State courts declaring State statutes which [they] seek to enforce to be repugnant to the" Fourteenth Amendment.[103]

Due Process and the Police Power

Definition.—The police power of a State today embraces regulations designed to promote the public convenience or the general prosperity as well as those to promote public safety, health, morals, and is not confined to the suppression of what is offensive, disorderly, or unsanitary, but extends to what is for the greatest welfare of the State.[104]

Limitations on the Police Power.—Because the police power of a State is the least limitable of the exercises of government, such limitations as are applicable thereto are not readily definable. Being neither susceptible of circumstantial precision, nor discoverable by any formula, these limitations can be determined only through appropriate regard to the subject matter of the exercise of that power.[105] "It is settled [however] that neither the 'contract' clause nor the 'due process' clause had the effect of overriding the power of the State to establish all regulations that are reasonably necessary to secure the health, safety, good order, comfort, or general welfare of the community; that this power can neither be abdicated nor bargained away, and is inalienable even by express grant; and that all contract and property [or other vested] rights are held subject to its fair exercise."[106] Insofar as the police power is utilized by a State, the means employed to effect its exercise can be neither arbitrary nor oppressive, but must bear a real and substantial relation to an end which is public, specifically, the public health, public safety, or public morals, or some other phase of the general welfare.[107]

The general rule is that if a police power regulation goes too far, it will be recognized as a taking of property for which compensation must be paid.[108] Yet where mutual advantage is a sufficient compensation, an ulterior public advantage may justify a comparatively insignificant taking of private property for what in its immediate purpose seems to be a private use.[109] On the other hand, mere "cost and inconvenience (different words, probably, for the same thing) would have to be very great before they could become an element in the consideration of the right of a State to exert its reserved power or its police power."[110] Moreover, it is elementary that enforcement of uncompensated obedience to a regulation passed in the legitimate exertion of the police power is not a taking without due process of law.[111] Similarly, initial compliance with a regulation which is valid when adopted occasions no forfeiture of the right to protest when that regulation subsequently loses its validity by becoming confiscatory in its operation.[112]

"Liberty" in General

Definition.—"While * * * [the] Court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men."[113]

Personal Liberty: Compulsory Vaccination: Sexual Sterilization.—Personal liberty is not infringed by a compulsory vaccination law[114] enacted by a State or its local subdivisions pursuant to the police power for the purpose of protecting inhabitants against the spread of smallpox. "The principle that sustains compulsory vaccination is [also] broad enough to cover" a statute providing for sexual sterilization of inmates of State supported institutions who are found to be afflicted with an hereditary form of insanity or imbecility.[115] Equally constitutional is a statute which provides for the commitment, after probate proceedings, of a psychopathic personality, defined by the State court as including those persons who, by habitual course of misconduct in sexual matters, have evidenced utter lack of power to control their sexual impulses and are likely to commit injury.[116] However, a person cannot be deprived of his liberty under a vague statute which subjected to fine or imprisonment, as a "gangster," any one not engaged in any lawful occupation, known to be a member of a gang consisting of two or more persons, and who had been convicted of a crime in any State in the Union.[117]

Liberties Pertaining to Education (of Teachers, Parents, Pupils).—A State law forbidding the teaching in any private denominational, parochial, or public school, of any modern language, other than English, to any child who has not successfully passed the eighth grade was declared, in Meyer v. Nebraska[118] to be an unconstitutional interference with the right of a foreign language teacher to teach and "of parents to engage him so to instruct their children." Although the Court did incorporate into its opinion in this case the general definition of "liberty" set forth above, its holding was substantially a reaffirmation of the liberty, in this instance of the teacher, to pursue a lawful calling free and clear of arbitrary restraints imposed by the State. In Pierce v. Society of the Sisters,[119] the Court elaborated further upon the liberty of parents when it declared that a State law requiring compulsory public school education of children, aged eight to sixteen, "unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control."[120] As to a student, neither his liberty to pursue his happiness nor his property or property rights were infringed when he was denied admission to a State university for refusing to comply with a law requiring renunciation of allegiance to, or affiliation with, a Greek letter fraternity. The right to attend such an institution was labelled, not an absolute, but a conditional right; inasmuch as the school was wholly under the control of the State, the latter was competent to enact measures such as the present one regulating internal discipline thereat.[121] Similarly, "the Fourteenth Amendment as a safeguard of 'liberty' [does not] confer the right to be students in the State university free from obligation to take military training as one of the conditions of attendance."[122]

Liberties Safeguarded by the First Eight Amendments.—In what has amounted to a constitutional revolution, the Court, since the end of World War I, has substantially enlarged the meaning of the term, "liberty," appearing in the due process clause of the Fourteenth Amendment. As a consequence of this altered interpretation, States and their local subdivisions have been restrained in their attempts to interfere with the press, or with the freedom of speech, assembly, or religious precepts of their inhabitants, and prevented from withholding from persons charged with commission of a crime certain privileges deemed essential to the enjoyment of a "fair trial." Cases revealing to what extent there has been incorporated into the "liberty" of the due process clause of the Fourteenth Amendment the substance of the First Amendment are set forth in the discussion presented under the latter amendment; whereas the decisions indicating the scope of the absorption into the Fourteenth Amendment of the procedural protection afforded by the Fourth, Fifth, Sixth, and Eighth Amendments are included in the material hereinafter presented under the subtitle, Criminal Proceedings.

Liberty of Contract (Labor Relations)

In General.—Liberty of contract, a concept originally advanced by Justices Bradley and Field in the Slaughter-House Cases,[123] was elevated to the status of accepted doctrine in 1897 in Allgeyer v. Louisiana.[124] Applied repeatedly in subsequent cases as a restraint on State power, freedom of contract has also been alluded to as a property right, as is evident in the language of the Court in Coppage v. Kansas:[125] "Included in the right of personal liberty and the right of private property—partaking of the nature of each—is the right to make contracts for the acquisition of property. Chief among such contracts is that of personal employment, by which labor and other services are exchanged for money or other forms of property. If this right be struck down or arbitrarily interfered with, there is a substantial impairment of liberty in the long-established constitutional sense."

However, by a process of reasoning that was almost completely discarded during the depression, the Court was nevertheless able, prior thereto, to sustain State ameliorative legislation by acknowledging that freedom of contract was "a qualified and not an absolute right. * * * Liberty implies the absence of arbitrary restraint, not immunity from reasonable regulations and prohibitions imposed in the interests of the community. * * * In dealing with the relation of the employer and employed, the legislature has necessarily a wide field of discretion in order that there may be suitable protection of health and safety, and that peace and good order may be promoted through regulations designed to insure wholesome conditions of work and freedom from oppression."[126] Through observance of such qualifying statement the Court was induced to uphold the following types of labor legislation.

Laws Regulating Hours of Labor.—The due process clause has been construed as permitting enactment by the States of laws: (1) limiting the hours of labor in mines and smelters to eight hours per day;[127] (2) prescribing eight hours a day or a maximum of 48 hours per week as a limitation of the hours at which women may labor;[128] and (3) providing that no person shall work in any mill, etc., more than ten hours per day (with exceptions) but permitting overtime, not to exceed three hours a day, on condition that it is paid at the rate of one and one-half times the regular wage.[129] Because of the almost plenary powers of the State and its municipal subdivisions to determine the conditions under which work shall go forward on public projects, statutes limiting the hours of labor on public works were also upheld at a relatively early date.[130]

Laws Regulating Labor in Mines.—The regulation of mines being so patently within the police power, States have been upheld in the enactment of laws providing for appointment of mining inspectors and requiring payment of their fees by mine owners,[131] compelling employment of only licensed mine managers and mine examiners, and imposing upon mine owners liability for the wilful failure of their manager and examiner to furnish a reasonably safe place for workmen.[132] Other similar regulations which have been sustained have included laws requiring that entries be of a specified width,[133] that boundary pillars be installed between adjoining coal properties as a protection against flood in case of abandonment,[134] and that washhouses be provided for employees.[135]

Laws Prohibiting Employment of Children in Hazardous Occupations.—To make effective its prohibition against the employment of persons under 16 years of age in dangerous occupations, a State has been held to be competent to require employers at their peril to ascertain whether their employees are in fact below that age.[136]

Laws Regulating Payment of Wages.—No unconstitutional deprivation of liberty of contract was deemed to have been occasioned by a statute requiring redemption in cash of store orders or other evidences of indebtedness issued by employers in payment of wages.[137] Nor was any constitutional defect discernible in laws requiring railroads to pay their employees semimonthly[138] and to pay them on the day of discharge, without abatement or reduction, any funds due them.[139] Similarly, freedom of contract was held not to be infringed by an act requiring that miners, whose compensation was fixed on the basis of weight, be paid according to coal in the mine car rather than at a certain price per ton for coal screened after it has been brought to the surface, and conditioning such payment on the presence of no greater percentage of dirt or impurities than that ascertained as unavoidable by the State Industrial Commission.[140]

Minimum Wage Laws.—The theory that a law prescribing minimum wages for women and children violates due process by impairing freedom of contract was finally discarded in 1937.[141] The current theory of the Court, particularly when labor is the beneficiary of legislation, was recently stated by Justice Douglas for a majority of the Court, in the following terms: "Our recent decisions make plain that we do not sit as a superlegislature to weigh the wisdom of legislation nor to decide whether the policy which it expresses offends the public welfare. The legislative power has limits * * *. But the state legislatures have constitutional authority to experiment with new techniques; they are entitled to their own standard of the public welfare; they may within extremely broad limits control practices in the business-labor field, so long as specific constitutional prohibitions are not violated and so long as conflicts with valid and controlling federal laws are avoided."[142] Proceeding from this basis the Court sustained a Missouri statute giving employees the right to absent themselves four hours on election day, between the opening and closing of the polls, without deduction of wages for their absence. It was admitted that this was a minimum wage law, but, said Justice Douglas, "the protection of the right of suffrage under our scheme of things is basic and fundamental," and hence within the police power. "Of course," the Justice added, "many forms of regulation reduce the net return of the enterprise * * * Most regulations of business necessarily impose financial burdens on the enterprise for which no compensation is paid. Those are part of the costs of our civilization. Extreme cases are conjured up where an employer is required to pay wages for a period that has no relation to the legitimate end. Those cases can await decision as and when they arise. The present law has no such infirmity. It is designed to eliminate any penalty for exercising the right of suffrage and to remove a practical obstacle to getting out the vote. The public welfare is a broad and inclusive concept. The moral, social, economic, and physical well-being of the community is one part of it; the political well-being, another. The police power which is adequate to fix the financial burden for one is adequate for the other. The judgment of the legislature that time out for voting should cost the employee nothing may be a debatable one. It is indeed conceded by the opposition to be such. But if our recent cases mean anything, they leave debatable issues as respects business, economic, and social affairs to legislative decision. We could strike down this law only if we returned to the philosophy of the Lochner, Coppage, and Adkins cases."[143]

Workmen's Compensation Laws.—"This Court repeatedly has upheld the authority of the States to establish by legislation departures from the fellow-servant rule and other common-law rules affecting the employer's liability for personal injuries to the employee.[144] * * * These decisions have established the propositions that the rules of law concerning the employer's responsibility for personal injury or death of an employee arising in the course of employment are not beyond alteration by legislation in the public interest; that no person has a vested right entitling him to have these any more than other rules of law remain unchanged for his benefit; and that, if we exclude arbitrary and unreasonable changes, liability may be imposed upon the employer without fault, and the rules respecting his responsibility to one employee for the negligence of another and respecting contributory negligence and assumption of risk are subject to legislative change."[145]

Accordingly, a State statute which provided an exclusive system to govern the liabilities of employers and the rights of employees and their dependents, in respect of compensation for disabling injuries and death caused by accident in certain hazardous occupations,[146] was held not to work a deprivation of property without due process of law in rendering the employer liable irrespective of the doctrines of negligence, contributory negligence, assumption of risk, and negligence of fellow-servants, nor in depriving the employee, or his dependents, of the higher damages which, in some cases, might be rendered under these doctrines.[147] Likewise, an act which allowed an injured employee an election of remedies permitting restricted recovery under a compensation law although guilty of contributory negligence, and full compensatory damages under the Employers' Liability Act did not deprive an employer of his property without due process of law.[148] Similarly, an elective statute has been sustained which provided that, in actions against employers rejecting the system, the inquiry should be presumed to have resulted directly from the employer's negligence and the burden of rebutting said presumption shall rest upon the latter.[149]

Contracts limiting liability for injuries, consummated in advance of the injury received, may be prohibited by the State, which may further stipulate that subsequent acceptance of benefits under such contracts shall not constitute satisfaction of a claim for injuries thereafter sustained.[150] Also, as applied to a nonresident alien employee hired within the State but injured on the outside, an act forbidding any contracts exempting employers from liability for injuries outside the State has been construed as not denying due process to the employer.[151] The fact that a State, after having allowed employers to cover their liability with a private insurer, subsequently withdrew that privilege and required them to contribute to a State Insurance Fund was held to effect no unconstitutional deprivation as applied to an employer who had obtained protection from an insurance company before this change went into effect.[152] Likewise, as long as the right to come under a workmen's compensation statute is optional with an employer, the latter, having chosen to accept benefits thereof, is estopped from attempting to escape its burdens by challenging the constitutionality of a provision thereof which makes the finding of fact of an industrial commission conclusive if supported by any evidence regardless of its preponderance.[153]

When, by the terms of a workmen's compensation statute, the wrongdoer, in case of wrongful death, is obliged to indemnify the employer or the insurance carrier of the employer of the decedent, in the amount which the latter were required under said act to contribute into special compensation funds, no unconstitutional deprivation of the wrongdoer's property was discernible.[154] By the same course of reasoning neither the employer nor the carrier was held to have been denied due process by another provision in an act requiring payments by them, in case an injured employee dies without dependents, into special funds to be used for vocational rehabilitation or disability compensation of injured workers of other establishments.[155] Compensation also need not be based exclusively on loss of earning power, and an award authorized by statute for injuries resulting in disfigurement of the face or head, independent of compensation for inability to work, has been conceded to be neither an arbitrary nor oppressive exercise of the police power.[156]

Collective Bargaining.—During the 1930's, liberty, in the sense of freedom of contract, judicially translated into what one Justice has labelled the Allgeyer-Lochner-Adair-Coppage doctrine,[157] lost its potency as an obstacle to the enforcement of legislation calculated to enhance the bargaining capacity of workers as against that already possessed by their employers. Prior to the manifestation, in Senn v. Tile Layers Protective Union,[158] decided in 1937, of a greater willingness to defer to legislative judgment as to the wisdom and need of such enactments, the Court had, on occasion, sustained measures such as one requiring every corporation to furnish, upon request, to any employee, when discharged or leaving its service, a letter, signed by the superintendent or manager, setting forth the nature and duration of his service to the corporation and stating truly the cause of his leaving.[159] Added provisions that such letters shall be on plain paper selected by the employee, signed in ink and sealed, and free from superfluous figures, and words, were also sustained as not amounting to any unconstitutional deprivation of liberty and property.[160] On the ground that the right to strike is not absolute, the Court in a similar manner upheld a statute by the terms of which an officer of a labor union was punished for having ordered a strike for the purpose of enforcing a payment to a former employee of a stale claim for wages.[161]

The significance of the case of Senn v. Tile Layers Protective Union[162] as an indicator of the range of the alteration of the Court's views concerning the constitutionality of State labor legislation derives in part from the fact that the statute upheld therein was not appreciably different from that voided in Truax v. Corrigan.[163] Both statutes were alike in that they withheld the remedy of injunction; but by reason of the fact that the invalidated act did not contain the more liberal and also more precise definition of a labor dispute set forth in the later enactment and, above all, did not affirmatively purport to sanction peaceful picketing only, the Court was enabled to maintain that Truax v. Corrigan, insofar as "the statute there in question was * * * applied to legalize conduct which was not simply peaceful picketing," was distinguishable. Specifically, the Court in the Senn Case gave its approval to the application of a Wisconsin statute which authorized the giving of publicity to labor disputes, declared peaceful picketing and patrolling lawful, and prohibited the granting of injunctions against such conduct to a controversy in which the matter at issue was the refusal of a tiling contractor employing nonunion workmen to sign a closed shop agreement unless a provision requiring him to abstain from working in his business as a tile layer or helper should be eliminated. Inasmuch as the enhancement of job opportunities for members of the union was a legitimate objective, the State was held competent to authorize the fostering of that end by peaceful picketing, and the fact that the sustaining of the union in its efforts at peaceful persuasion might have the effect of preventing Senn from continuing in business as an independent entrepreneur was declared to present an issue of public policy exclusively for legislative determination.[164]

The policy of many State legislatures in recent years, however, has been to adopt legislation designed to control the abuse of the enormous economic power which previously enacted protective measures enabled labor unions to amass; and it is the constitutionality of such restrictive measures that has lately concerned the Court. Thus, in Railway Mail Association v. Corsi,[165] section 43 of New York's Civil Rights Law which forbids a labor organization to deny any person membership by reason of race, color, or creed, or to deny any member, on similar grounds, equal treatment in designation for employment, promotion, or dismissal by an employer was sustained, when applied to an organization of railway mail clerks, as not interfering unlawfully with the latter's right to choose its members nor abridging its property rights, or liberty of contract. Inasmuch as it held "itself out to represent the general business needs of employees" and functioned "under the protection of the State," the union was deemed to have forfeited the right to claim exemption from legislation protecting workers against discriminatory exclusion.[166] Similarly approved as constitutional in Lincoln Union v. Northwestern Co.[167] and American Federation of Labor v. American Sash Co.[168] were State laws outlawing the closed shop; and when labor unions invoked in their own defense the freedom of contract doctrine that hitherto had been employed to nullify legislation intended for their protection, the Court, speaking through Justice Black announced its refusal "to return, * * * to * * * [a] due process philosophy that has been deliberately discarded. * * * The due process clause," it maintained, does not "forbid a State to pass laws clearly designed to safeguard the opportunity of nonunion workers to get and hold jobs, free from discrimination against them because they are nonunion workers."[169] Also in harmony with the last mentioned pair of cases is Auto Workers v. Wisconsin Board[170] in which was upheld enforcement of the Wisconsin Employment Peace Act which proscribed as an unfair labor practice efforts of a union, after collective bargaining negotiations had become deadlocked, to coerce an employer through a "slow-down" in production achieved by the irregular, but frequent, calling of union meetings during working hours without advance notice to the employer or notice as to whether or when the employees would return, and without informing him of the specific terms sought by such tactics. "No one," declared the Court, can question "the State's power to police coercion by * * * methods" which involve "considerable injury to property and intimidation of other employees by threats."[171] Finally, in Giboney v. Empire Storage Co.,[172] the Court acknowledged that no violation of the Constitution results when a State law forbidding agreements in restraint of trade is construed by State courts as forbidding members of a union of ice peddlers from peacefully picketing a wholesale ice distributor's place of business for the sole purpose of inducing the latter not to sell to nonunion peddlers.

REGULATION OF CHARGES; "BUSINESSES AFFECTED WITH A PUBLIC INTEREST"

History

In endeavoring to measure the impact of the due process clause upon efforts by the States to control the charges exacted by various businesses for their services, the Supreme Court, almost from the inception of the Fourteenth Amendment, has devoted itself to the examination of two questions: (1) whether that clause precluded that kind of regulation of certain types of business, and (2) the nature of the restraint, if any, which this clause imposes on State control of rates in the case of businesses as to which such control exists. For a brief interval following the ratification of the Fourteenth Amendment, the Supreme Court appears to have underestimated the significance of this clause as a substantive restraint on the power of States to fix rates chargeable by an industry deemed appropriately subject to such controls. Thus, in Munn v. Illinois,[173] the first of the "Granger" cases, in which maximum charges established by a State legislature for Chicago grain elevator companies were challenged, not as being confiscatory in character, but rather as a regulation beyond the power of any State agency to impose, the Court, in an opinion that was largely an obiter dictum, declared that the due process clause did not operate as a safeguard against oppressive rates, that if regulation was permissible, the severity thereof was within legislative discretion and could be ameliorated only by resort to the polls. Not much time was permitted to elapse, however, before the Court effected a complete withdrawal from this position; and by 1890[174] it had fully converted the due process clause into a positive restriction which the judicial branch is duty bound to enforce whenever State agencies seek to impose rates which, in its estimation, are arbitrary or unreasonable.

In contrast to the speed with which the Court arrived at those above mentioned conclusions, more than fifty years were to elapse before it developed its currently applicable formula for determining the propriety of subjecting specific businesses to State regulation of their prices or charges. Prior to 1934, unless a business were "affected with a public interest," control of its prices, rates, or conditions of service was viewed as an unconstitutional deprivation of liberty and property without due process of law. During the period of its application, however, this standard, "business affected with a public interest," never acquired any precise meaning; and as a consequence lawyers were never able to identify all those qualities or attributes which invariably distinguished a business so affected from one not so affected. The best the Court ever offered by way of enlightenment was the following classification of businesses subject to regulation, prepared by Chief Justice Taft.[175] These were said to comprise: "(1) Those [businesses] which are carried on under the authority of a public grant of privileges which either expressly or impliedly imposes the affirmative duty of rendering a public service demanded by any member of the public. Such are the railroads, other common carriers and public utilities. (2) Certain occupations, regarded as exceptional, the public interest attaching to which, recognized from earliest times, has survived the period of arbitrary laws by Parliament or Colonial legislatures for regulating all trades and callings. Such are those of the keepers of inns, cabs and grist mills. * * * (3) Businesses which though not public at their inception may be fairly said to have risen to be such and have become subject in consequence to some government regulation. They have come to hold such a peculiar relation to the public that this is superimposed upon them. In the language of the cases, the owner by devoting his business to the public use, in effect grants the public an interest in that use and subjects himself to public regulation to the extent of that interest although the property continues to belong to its private owner and to be entitled to protection accordingly."

Through application of this now outmoded formula the Court found it possible to sustain State laws regulating charges made by grain elevators,[176] stockyards,[177] and tobacco warehouses,[178] and fire insurance rates[179] and commissions paid to fire insurance agents.[180] Voided, because the businesses sought to be controlled were deemed to be not so affected, were State statutes fixing the price at which gasoline may be sold,[181] or at which ticket brokers may resell tickets purchased from theatres,[182] and limiting competition in the manufacture and sale of ice through the withholding of licenses to engage therein.[183]

Nebbia v. New York

In upholding, by a vote of five-to-four, a depression induced New York statute fixing prices at which fluid milk might be sold, the Court, in 1934, finally shelved the concept of "a business affected with a public interest."[184] Older decisions, insofar as they negatived a power to control prices in businesses found not "to be clothed with a public use" were now reviewed as resting, "finally, upon the basis that the requirements of due process were not met because the laws were found arbitrary in their operation and effect. Price control, like any other form of regulation, is [now] unconstitutional only if arbitrary, discriminatory, or demonstrably irrelevant to the policy the legislature is free to adopt, and hence an unnecessary and unwarranted interference with individual liberty." Conceding that "the dairy industry is not, in the accepted sense of the phrase, a public utility"; that is, a "business affected with a public interest," the Court in effect declared that price control henceforth is to be viewed merely as an exercise by the State of its police power, and as such is subject only to the restrictions which due process of law imposes on arbitrary interference with liberty and property. Nor was the Court disturbed by the fact that a "scientific validity" had been claimed for the theories of Adam Smith relating to the "price that will clear the market." However much the minority might stress the unreasonableness of any artificial State regulation interfering with the determination of prices by "natural forces,"[185] the majority was content to note that the "due process clause makes no mention of prices" and that "the courts are both incompetent and unauthorized to deal with the wisdom of the policy adopted or the practicability of the law enacted to forward it."

Having thus concluded that it is no longer the nature of the business which determines the validity of a regulation of its rates or charges but solely the reasonableness of the regulation, the Court had little difficulty in upholding, in Olsen v. Nebraska,[186] a State law prescribing the maximum commission which private employment agencies may charge. Rejecting the contentions of the employment agencies that the need for such protective legislation had not been shown, the Court held that differences of opinion as to the wisdom, need, or appropriateness of the legislation "suggest a choice which should be left to the States"; and that there was "no necessity for the State to demonstrate before us that evils persist despite the competition" between public, charitable, and private employment agencies. The older case of Ribnik v. McBride,[187] which founded the invalidation of similar legislation upon the now obsolete concept of a "business affected with a public interest" was expressly overruled.

JUDICIAL REVIEW OF PUBLICLY DETERMINED RATES AND CHARGES

Development

In Munn v. Illinois,[188] its initial holding concerning the applicability of the Fourteenth Amendment to governmental price fixing,[189] the Court, not only asserted that governmental regulation of rates charged by public utilities and allied businesses was within the States' police power but added that the determination of such rates by a legislature was conclusive and not subject to judicial review or revision. Expanding the range of permissible governmental fixing of prices, the Court, in the Nebbia Case,[190] more recently declared that prices established for business in general would invite judicial condemnation only if "arbitrary, discriminatory, or demonstrably irrelevant to the policy the legislature is free to adopt." The latter standard of judicial appraisal, as will be subsequently noted, represents less of a departure from the principle enunciated in the Munn Case than that which the Court evolved, in the years following 1877, to measure the validity of State imposed public utility rates, and this difference in the judicial treatment of prices and rates accordingly warrants an explanation at the outset. Unlike operators of public utilities who, in return for the grant of certain exclusive, virtually monopolistic privileges by the governmental unit enfranchising them, must assume an obligation to provide continuous service, proprietors of other businesses are in receipt of no similar special advantages and accordingly are unrestricted in the exercise of their right to liquidate and close their establishments. At liberty, therefore, as public utilities invariably are not, to escape, by dissolution, the consequences of publicly imposed charges deemed to be oppressive, owners of ordinary business, presumably for that reason, have thus far been unable to convince the courts that they too, no less than public utilities, are in need of that protection which judicial review affords.

Consistently with its initial pronouncement in the Munn Case, that the reasonableness of compensation allowed under permissible rate regulation presented a legislative rather than a judicial question, the Court, in Davidson v. New Orleans,[191] also rejected the contention that, by virtue of the due process clause, businesses, even though subject to control of their prices or charges, were nevertheless entitled to "just compensation." Less than a decade was to elapse, however, before the Court, appalled perhaps by prospective consequences of leaving business "at the mercy of the majority of the legislature," began to reverse itself. Thus, in 1886, Chief Justice Waite, in the Railroad Commission Cases,[192] warned that "this power to regulate is not a power to destroy; [and] the State cannot do that in law which amounts to a taking of property for public use without just compensation or without due process of law"; or, in other words, cannot impose a confiscatory rate. By treating "due process of law" and "just compensation" as equivalents, the Court, contrary to its earlier holding in Davidson v. New Orleans, was in effect asserting that the imposition of a rate so low as to damage or diminish private property ceased to be an exercise of a State's police power and became one of eminent domain. Nevertheless, even the added measure of protection afforded by the doctrine of the Railroad Commission Cases proved inadequate to satisfy public utilities; for through application of the latter the courts were competent to intervene only to prevent legislative imposition of a confiscatory rate, a rate so low as to be productive of a loss and to amount to a taking of property without just compensation. Nothing less than a judicial acknowledgment that when the "reasonableness" of legislative rates is questioned, the courts should finally dispose of the contention was deemed sufficient by such businesses to afford the relief desired; and although as late as 1888[193] the Court doubted that it possessed the requisite power, it finally acceded to the wishes of the utilities in 1890, and, in Chicago, M. & St. P.R. Co. v. Minnesota[194] ruled as follows: "The question of the reasonableness of a rate * * *, involving as it does the element of reasonableness both as regards the company and as regards the public, is eminently a question for judicial investigation, requiring due process of law for its determination. If the company is deprived of the power of charging rates for the use of its property, and such deprivation takes place in the absence of an investigation by judicial machinery, it is deprived of the lawful use of its property, and thus, in substance and effect, of the property itself, without due process of law * * *"

Despite a last hour attempt, in Budd v. New York,[195] to reconcile Munn v. Illinois with Chicago, M. & St. P.R. Co. v. Minnesota by confining application of the latter decision to cases wherein rates had been fixed by a commission and denying its pertinence to rates directly imposed by a legislature, the Court, in Reagan v. Farmers' Loan and Trust Co.,[196] set at rest all lingering doubts as to the scope of judicial intervention by declaring that, "if a carrier," in the absence of a legislative rate, "attempted to charge a shipper an unreasonable sum," the Court, in accordance with common law principles, will pass on the reasonableness of its rates and has "jurisdiction * * * to award to the shipper any amount exacted * * * in excess of a reasonable rate; * * * The province of the courts is not changed, nor the limit of judicial inquiry altered, because the legislature instead of a carrier prescribes the rates."[197] Reiterating virtually the same principle in Smyth v. Ames,[198] the Court not only obliterated the distinction between confiscatory and unreasonable rates, but also contributed the additional observation that the requirements of due process are not met unless a court reviews not merely the reasonableness of a rate but also determines whether the rate permits the utility to earn a fair return on a fair valuation of its investment.

Limitations on Judicial Review

As to what courts will not do, when reviewing rate orders of a State commission, the following negative statements of the Supreme Court appear to have enduring value. As early as 1894, the Court asserted: "The courts are not authorized to revise or change the body of rates imposed by a legislature or a commission; they do not determine whether one rate is preferable to another, or what under all circumstances would be fair and reasonable as between the carriers and the shippers; they do not engage in any mere administrative work; * * * [however, there can be no doubt] of their power and duty to inquire whether a body of rates * * * is unjust and unreasonable, * * *, and if found so to be, to restrain its operation."[199] And later, in 1910, although it was examining the order of a federal rate-making agency, the Court made a similar observation which appears to be equally applicable to the judicial review of regulations of State agencies. The courts cannot, "under the guise of exerting judicial power, usurp merely administrative functions by setting aside" an order of the commission within the scope of the power delegated to such commission, upon the ground that such power was unwisely or inexpediently exercised.[200]

Also inferable from these early holdings, and effective to restrict the bounds of judicial investigation, is the notion that a distinction can be made between factual questions which give rise only to controversies as to the wisdom or expediency of an order issued by a commission and determinations of fact which bear on a commission's power to act; namely those questions which are inseparable from the constitutional issue of confiscation, and that judicial review does not extend to the former. This distinction is accorded adequate emphasis by the Court in Louisville & N.R. Co. v. Garrett,[201] in which it declared that "the appropriate question for the courts" is simply whether a "commission," in establishing a rate, "acted within the scope of its power" and did not violate "constitutional rights * * * by imposing confiscatory requirements" and that a carrier, contesting the rate thus established, accordingly was not entitled to have a court also pass upon a question of fact regarding the reasonableness of a higher rate charged by it prior to the order of the commission. All that need concern a court, it said, is the fairness of the proceeding whereby the commission determined that the existing rate was excessive; but not the expediency or wisdom of the commission's having superseded that rate with a rate regulation of its own.

Likewise, with a view to diminishing the number of opportunities which courts may enjoy for invalidating rate regulations of State commissions, the Supreme Court has placed various obstacles in the path of the complaining litigant. Thus, not only must a person challenging a rate assume the burden of proof,[202] but he must present a case of "manifest constitutional invalidity";[203] and if, notwithstanding his effort, the question of confiscation remains in doubt, no relief will be granted.[204] Moreover, even though a public utility, which has petitioned a commission for relief from allegedly confiscatory rates, need not await indefinitely a decision by the latter before applying to a court for equitable relief,[205] the latter ought not to interfere in advance of any experience of the practical result of such rates.[206]

In the course of time, however, a distinction emerged between ordinary factual determinations by State commissions and factual determinations which were found to be inseparable from the legal and constitutional issue of confiscation. In two older cases arising from proceedings begun in lower federal courts to enjoin rates, the Court initially adopted the position that it would not disturb such findings of fact insofar as these were supported by substantial evidence. Thus, in San Diego Land and Town Company v. National City,[207] the Court declared that: After a legislative body has fairly and fully investigated and acted, by fixing what it believes to be reasonable rates, the courts cannot step in and say its action shall be set aside because the courts, upon similar investigation, have come to a different conclusion as to the reasonableness of the rates fixed. "Judicial interference should never occur unless the case presents, clearly and beyond all doubt, such a flagrant attack upon the rights of property under the guise of regulation as to compel the court to say that the rates prescribed will necessarily have the effect to deny just compensation for private property taken for the public use." And in a similar later case[208] the Court expressed even more clearly its reluctance to reexamine factual determinations of the kind just described. The Court is not bound "to reexamine and weigh all the evidence, * * *, or to proceed according to * * * [its] independent opinion as to what are proper rates. It is enough if * * * [the Court] cannot say that it was impossible for a fair-minded board to come to the result which was reached."

Moreover, in reviewing orders of the Interstate Commerce Commission, the Court, at least in earlier years,[209] chose to be guided by approximately the same standards of appraisal as it had originally formulated for examining regulations of State commissions; and inasmuch as the following excerpt from its holding in Interstate Commerce Commission v. Union Pacific R. Co.[210] represents an adequate summation of the law as it stood prior to 1920, it is set forth below: "* * * questions of fact may be involved in the determination of questions of law, so that an order, regular on its face, may be set aside if it appears that the rate is so low as to be confiscatory * * *; or if the Commission acted so arbitrarily and unjustly as to fix rates contrary to evidence, or without evidence to support it; or if the authority therein involved has been exercised in such an unreasonable manner as to cause it to be within the elementary rule that the substance, and not the shadow, determines the validity of the exercise of the power. * * * In determining these mixed questions of law and fact, the Court confines itself to the ultimate question as to whether the Commission acted within its power. It will not consider the expediency or wisdom of the order, or whether, on like testimony, it would have made a similar ruling. * * * [The Commission's] conclusion, of course, is subject to review, but when supported by evidence is accepted as final; not that its decision, * * *, can be supported by a mere scintilla of proof—but the courts will not examine the facts further than to determine whether there was substantial evidence to sustain the order."

The Ben Avon Case

These standards of review were abruptly rejected by the Court in Ohio Valley Water Company v. Ben Avon Borough,[211] decided in 1920, as being no longer sufficient to satisfy the requirements of due process. Unlike previous litigation involving allegedly confiscatory rate orders of State commissions, which had developed from rulings of lower federal courts in injunctive proceedings, this case reached the Supreme Court by way of appeal from a State appellate tribunal;[212] and although the latter did in fact review the evidence and ascertained that the State commission's findings of fact were supported by substantial evidence, it also construed the statute providing for review as denying to State courts "the power to pass upon the weight of such evidence." Largely on the strength of this interpretation of the applicable State statute, the Supreme Court held that when the order of a legislature, or of a commission, prescribing a schedule of maximum future rates is challenged as confiscatory, "the State must provide a fair opportunity for submitting that issue to a judicial tribunal for determination upon its own independent judgment as to both law and facts; otherwise the order is void because in conflict with the due process clause, Fourteenth Amendment."

Without departing from the ruling, previously enunciated in Louisville & N.R. Co. v. Garrett,[213] that the failure of a State to grant a statutory right of judicial appeal from a commission's regulation is not violative of due process as long as relief is obtainable by a bill in equity for injunction, the Court also held that the alternative remedy of injunction expressly provided by State law did not afford an adequate opportunity for testing judicially a confiscatory rate order. It conceded the principle stressed by the dissenting Justices that "where a State offers a litigant the choice of two methods of judicial review, of which one is both appropriate and unrestricted, the mere fact that the other which the litigant elects is limited, does not amount to a denial of the constitutional right to a judicial review."[214]

History of the Valuation Question

For almost fifty years the Court was to wander through a maze of conflicting formulas for valuing public service corporation property only to emerge therefrom in 1944 at a point not very far removed from Munn v. Illinois.[215] By holding, in 1942, in Federal Power Commission v. Natural Gas Pipeline Co.,[216] that the "Constitution does not bind rate-making bodies to the service of any single formula or combination of formulas," and in 1944, in Federal Power Commission v. Hope Gas Co.,[217] that "it is the result reached not the method employed which is controlling, * * * [that] it is not the theory but the impact of the rate order which counts, [and that] if the total effect of the rate order cannot be said to be unjust and unreasonable, judicial inquiry under the Act is at an end," the Court, in effect, abdicated from the position assumed in the Ben Avon Case.[218] Without surrendering the judicial power to declare rates unconstitutional on grounds of a substantive[219] deprivation of due process, the Court announced that it would not overturn a result deemed by it to be just simply because "the method employed [by a commission] to reach that result may contain infirmities. * * * [A] Commission's order does not become suspect by reason of the fact that it is challenged. It is the product of expert judgment which carries a presumption of validity. And he who would upset the rate order * * * carries the heavy burden of making a convincing showing that it is invalid because it is unjust and unreasonable in its consequences."[220]