Health, Safety, and Morals
Health.—Even under the narrowest concept of the police power as limited by substantive due process, it was generally conceded that states could exercise the power to protect the public health, safety, and morals.335 For instance, an ordinance for incineration of garbage and refuse at a designated place as a means of protecting public health is not a taking of private property without just compensation, even though such garbage and refuse may have some elements of value for certain purposes.336 Or, compelling property owners to connect with a publicly maintained system of sewers and enforcing that duty by criminal penalties does not violate the due process clause.337
336 California Reduction Co. v. Sanitary Works, 199 U.S. 306 (1905).
337 Hutchinson v. City of Valdosta, 227 U.S. 303 (1913).
There are few constitutional restrictions on the extensive state regulations on the production and distribution of food and drugs.338 Statutes forbidding or regulating the manufacture of oleomargarine have been upheld,339 as have statutes ordering the destruction of unsafe food340 or confiscation of impure milk,341 notwithstanding that, in the latter cases, such articles had a value for purposes other than food. There also can be no question of the authority of the State, in the interest of public health and welfare, to forbid the sale of drugs by itinerant vendors342 or the sale of spectacles by an establishment where a physician or optometrist is not in charge.343 Nor is it any longer possible to doubt the validity of state regulations pertaining to the administration, sale, prescription, and use of dangerous and habit-forming drugs.344
Equally valid as police power regulations are laws forbidding the sale of ice cream not containing a reasonable proportion of butter fat,345 of condensed milk made from skimmed milk rather than whole milk,346 or of food preservatives containing boric acid.347 Similarly, a statute intended to prevent fraud and deception by prohibiting the sale of "filled milk" (milk to which has been added any fat or oil other than a milk fat) is valid, at least where such milk has the taste, consistency, and appearance of whole milk products. The Court reasoned that filled milk is inferior to whole milk in its nutritional content and cannot be served to children as a substitute for whole milk without producing a dietary deficiency.348
338 "The power of the State to . . . prevent the production within its borders of impure foods, unfit for use, and such articles as would spread disease and pestilence, is well established." Sligh v. Kirkwood, 237 U.S. 52, 59-60 (1915).
340 North American Storage Co. v. City of Chicago, 211 U.S. 306 (1908).
341 Adams v. City of Milwaukee, 228 U.S. 572 (1913).
342 Baccus v. Louisiana, 232 U.S. 334 (1914).
343 Roschen v. Ward, 279 U.S. 337 (1929).
345 Hutchinson Ice Cream Co. v. Iowa, 242 U.S. 153 (1916).
346 Hebe Co. v. Shaw, 248 U.S. 297 (1919).
347 Price v. Illinois, 238 U.S. 446 (1915).
348 Sage Stores Co. v. Kansas, 323 U.S. 32 (1944). Where health or fraud are not an issue, however, police power may be more limited. Thus, a statute forbidding the sale of bedding made with shoddy materials, even if sterilized and therefore harmless to health, was held to be arbitrary and therefore invalid Weaver v. Palmer Bros. Co., 270 U.S. 402 (1926).
Even before the passage of the 21st Amendment, which granted states the specific authority to regulate alcoholic beverages, the Supreme Court had found that the states have significant authority in this regard.349 A State may declare places where liquor is manufactured or kept to be common nuisances,350 and may even subject an innocent owner to the forfeiture of his property if he allows it to be used for the illegal production or transportation of alcohol.351
Safety.—Regulations designed to promote public safety are also well within a state's authority to implement. For instance, various measures designed to reduce fire hazards have been upheld. These include municipal ordinances that prohibit the storage of gasoline within 300 feet of any dwelling,352 require that all gas storage tanks with a capacity of more than ten gallons be buried at least three feet under ground,353 or prohibit washing and ironing in public laundries and wash houses within defined territorial limits from 10 p.m. to 6 a.m.354 A city's demolition and removal of wooden buildings erected in violation of regulations was also consistent with the Fourteenth Amendment.355 Construction of property in full compliance with existing laws, however, does not confer upon the owner an immunity against exercise of the police power. Thus, a 1944 amendment to a Multiple Dwelling Law, requiring installation of automatic sprinklers in lodging houses of non-fireproof construction, can be applied to a lodging house constructed in 1940, even though compliance entails an expenditure of $7,500 on a property worth only $25,000.356
States exercise extensive regulation over transportation safety. Although state highways are used primarily for private purposes, they are public property, and the use of a highway for financial gain may be prohibited by the legislature or conditioned as it sees fit.357 Consequently, a State may reasonably provide that intrastate carriers who have furnished adequate, responsible, and continuous service over a given route from a specified date in the past shall be entitled to licenses as a matter of right, but that issuance to those whose service began later shall depend upon public convenience and necessity.358 A state may require private contract carriers for hire to obtain a certificate of convenience and necessity, and decline to grant one if the service of common carriers is impaired thereby. A state may also fix minimum rates applicable to such private carriers, which are not less than those prescribed for common carriers, as a valid as a means of conserving highways.359 In the absence of legislation by Congress, a State may, in protection of the public safety, deny an interstate motor carrier the use of an already congested highway.360
349 "[O]n account of their well-known noxious qualities and the extraordinary evils shown by experience to be consequent upon their use, a State . . . [is competent] to prohibit [absolutely the] manufacture, gift, purchase, sale, or transportation of intoxicating liquors within its borders…" Beer Co. v. Massachusetts, 97 U.S. 25, 33 (1878). See Mugler v. Kansas, 123 U.S. 623 (1887); Kidd v. Pearson, 128 U.S. 1 (1888); Purity Extract Co. v. Lynch, 226 U.S. 192 (1912); James Clark Distilling Co. v. Western Md. Ry., 242 U.S. 311 (1917); Barbour v. Georgia, 249 U.S. 454 (1919).
352 Pierce Oil Corp. v. Hope, 248 U.S. 498 (1919).
353 Standard Oil Co. v. Marysville, 279 U.S. 582 (1929).
355 Maguire v. Reardon, 225 U.S. 271 (1921).
356 Queenside Hills Co. v. Saxl, 328 U.S. 80 (1946).
357 Stephenson v. Binford, 287 U.S. 251 (1932).
358 Stanley v. Public Utilities Comm'n, 295 U.S. 76 (1935).
359 Stephenson v. Binford, 287 U.S. 251 (1932). But any attempt to convert private carriers into common carriers, Michigan Pub. Utils. Comm'n v. Duke, 266 U.S. 570 (1925), or to subject them to the burdens and regulations of common carriers, without expressly declaring them to be common carriers, is violative of due process. Frost Trucking v. Railroad Comm'n, 271 U.S. 583 (1926); Smith v. Cahoon, 283 U.S. 553 (1931).
360 Bradley v. Public Utils. Comm'n, 289 U.S. 92 (1933).
In exercising its authority over its highways, a State is not limited to the raising of revenue for maintenance and reconstruction or to regulating the manner in which vehicles shall be operated, but may also prevent the wear and hazards due to excessive size of vehicles and weight of load.361 No less constitutional is a municipal traffic regulation which forbids the operation in the streets of any advertising vehicle, excepting vehicles displaying business notices or advertisements of the products of the owner and not used mainly for advertising; and such regulation may be validly enforced to prevent an express company from selling advertising space on the outside of its trucks.362 A State may also provide that a driver who fails to pay a judgment for negligent operation shall have his license and registration suspended for three years, unless, in the meantime, the judgment is satisfied or discharged.363 Compulsory automobile insurance is so plainly valid as to present no federal constitutional question.364
361 Accordingly, a statute limiting to 7,000 pounds the net load permissible for trucks is not unreasonable. Sproles v. Binford, 286 U.S. 374 (1932).
362 Inasmuch as it is the judgment of local authorities that such advertising affects public safety by distracting drivers and pedestrians, courts are unable to hold otherwise in the absence of evidence refuting that conclusion. Railway Express Agency v. New York, 336 U.S. 106 (1949).
363 Reitz v. Mealey, 314 U.S. 33 (1941); Kesler v. Department of Pub. Safety, 369 U.S. 153 (1962). But see Perez v. Campbell, 402 U.S. 637 (1971). Procedural due process must, of course be observed. Bell v. Burson, 402 U.S. 535 (1971). A non-resident owner who loans his automobile in another state, by the law of which he is immune from liability for the borrower's negligence and who was not in the state at the time of the accident, is not subjected to any unconstitutional deprivation by a law thereof, imposing liability on the owner for the negligence of one driving the car with the owner's permission. Young v. Masci, 289 U.S. 253 (1933).
364 Ex parte Poresky, 290 U.S. 30 (1933). See also Packard v. Banton, 264 U.S. 140 (1924); Sprout v. South Bend, 277 U.S. 163 (1928); Hodge Co. v. Cincinnati, 284 U.S. 335 (1932); Continental Baking Co. v. Woodring, 286 U.S. 352 (1932).
Morality.—Legislatures have wide discretion in regulating "immoral" activities. Thus, legislation suppressing prostitution365 or gambling366 will be upheld by the Court as within the police power of a State. Accordingly, a state statute may provide that judgment against a party to recover illegal gambling winnings may be enforced by a lien on the property of the owner of the building where the gambling transaction was conducted when the owner knowingly consented to the gambling.367 Similarly, a court may order a car used in an act of prostitution forfeited as a public nuisance, even if this works a deprivation on an innocent joint owner of the car.368 For the same reason, lotteries, including those operated under a legislative grant, may be forbidden, regardless of any particular equities.369
365 L'Hote v. New Orleans, 177 U.S. 587 (1900).
366 Ah Sin v. Wittman, 198 U.S. 500 (1905).
367 Marvin v. Trout, 199 U.S. 212 (1905).
368 Bennis v. Michigan, 516 U.S. 442 (1996).