Riley v. Ayer & Lord Tie. Co.

I concur with Judge HOLDEN'S opinion in holding that chapter 118, Laws of 1926, is unconstitutional, for the reasons therein stated. I think, however, that it is also unconstitutional for the further reason that the statute, in effect, prohibits an individual from engaging in a lawful occupation, and thus denies the liberty of a citizen and violates the Fourteenth Amendment to the Constitution of the United States.

Where a business is not harmful within itself, and is not affected with any public use, I think it is not competent for the legislature to place a tax thereon so high as to prevent the business being conducted without loss to the person engaged therein. It is not competent for the legislature to so monopolize a business that only those can engage in it who can do so upon the basis of monopoly. In Illinois it has been held that an act requiring an examination in licensing persons engaged in the trade of horseshoeing is not justifiable. Bessette v. People,193 Ill. 334, 62 N.E. 215, 56 L.R.A. 558; People v. Beattie,96 App. Div. 383, 89 N.Y.S. 193; In re Aubrey, 36 Wn. 308, 78 P. 900, 104 Am. St. Rep. 952, 1 Ann. Cas. 927. Black's Constitutional Law, p. 411, after discussing certain trades that could be regulated or prohibited, says:

"But, in general, the ordinary and common trades, callings, and forms of business, which are innocuous in themselves, and have been followed in all communities from time immemorial, are not subject to interference or restraint under the pretence of police regulations, and must be free to all alike on the same terms."

Allegyer v. Louisiana, 165 U.S. 578, 17 S.Ct. 427, 41 L.Ed. 832, in defining the liberty of a citizen under the Fourteenth Amendment to the Federal Constitution, held as follows:

"The liberty mentioned in that amendment means not only the right of the citizen to be free from the mere physical restraint of his person, as by incarceration, but the term is deemed to embrace the right of the citizen to be free in the enjoyment of all his faculties; to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; to pursue any livelihood or avocation, and for that purpose to enter into all contracts which may be proper, necessary and essential to his carrying out to a successful conclusion the purposes above mentioned. It was said by Mr. Justice BRADLEY, in Butchers' Union Company v. Crescent CityCompany, 111 U.S. 746, 762 [4 S.Ct. 652, 657 (28 L.Ed. 585)], in the course of his concurring opinion in that case, that the right to follow any of the common occupations of life is an inalienable right. It was formulated as such under the phrase ``pursuit of happiness' in the Declaration of Independence, which commenced with the fundamental proposition that ``all men are created equal, that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty and the pursuit of happiness.' This right is a large ingredient in the civil liberty of the citizen. Again on page 764 [658] [589] the learned Justice said: ``I hold that the liberty of pursuit — the right to follow any of the ordinary callings of life — is one of the privileges of a citizen of the United States.' And again, on page 765 [658] [590]: ``But if it does not abridge the privileges and immunities of a citizen of the United States to prohibit him from pursuing his chosen calling, and giving to others the exclusive right of pursuing it, it certainly does deprive him (to a certain extent), of his liberty; for it takes from him the freedom of adopting and following the pursuit which he prefers; which, as already intimated, is a material part of the liberty of the citizen.' It is true that these remarks were made in regard to questions of monopoly, but they well describe the rights which are covered by the word ``liberty' as contained in the Fourteenth Amendment."

In the case of Wolff Packing Co. v. Court of IndustrialRelations of State of Kansas, 262 U.S. 522, 43 S.Ct. 630, 67 L.Ed. 1103, 27 A.L.R. 1280, the court had occasion to deal with a statute of Kansas, which undertook to enact laws designed to affect the liberty of the individual which is protected by the due process clause of the Fourteenth Amendment to the Constitution of the United States, and it was held that the act abridged the right of liberty of contract, and thus violated the Fourteenth Amendment to the Constitution of the United States, in that it deprived both the employer and employee of the right to contract in reference to said business. It was therein further held that businesses clothed with a public interest justifying some public regulation are divided into three classes: (1) Those carried on under a public grant of privileges; (2) certain occupations regarded as exceptional, such as the keeping of inns, cabs and gristmills; and (3) business, the owner of which, by devoting it to public use, in effect, grants the public an interest in that use, and subjects himself to public regulation to the extent of that interest. It was further held therein that the mere declaration by the legislature that a business is affected with a public interest is not conclusive of the question whether or not its attempted regulation on that ground is justified. At page 537 of the United States Report (page 633, 43 S.Ct., page 1109, 67 L.Ed.), the court said:

"It has never been supposed, since the adoption of the Constitution, that the business of the butcher, or the baker, the tailor, the wood chopper, the mining operator, or the miner, was clothed with such a public interest that the price of his product or his wages could be fixed by state regulation. It is true that in the days of the early common law an omnipotent Parliament did regulate prices and wages as it chose, and occasionally a colonial legislature sought to exercise the same power; but nowadays one does not devote one's property or business to the public use or clothe it with a public interest merely because one makes commodities for, and sells to, the public in the common callings of which those above mentioned are instances. An ordinary producer, manufacturer or shopkeeper, may sell or not sell as he likes [citing authorities], and while this feature does not necessarily exclude businesses from the class clothed with a public interest [citing authorities], it usually distinguishes private from quasi public occupations. In nearly all the businesses included under the third head above, the thing which gave the public interest was the indispensable nature of the service and the exorbitant charges and arbitrary control to which the public might be subjected without regulation. In the preparation of food, the changed conditions have greatly increased the capacity for treating the raw product and transferred the work from the shop with few employees to the great plant with many. Such regulation of it as there has been, has been directed toward the health of the workers in congested masses, or has consisted of inspection and supervision with a view to the health of the public. But never has regulation of food preparation been extended to fixing wages or the prices to the public, as in the cases cited above, where fear of monopoly prompted, and was held to justify, regulation of rates. There is no monopoly in the preparation of foods. The prices charged by plaintiff in error are, it is conceded, fixed by competition throughout the country at large. Food is now produced in greater volume and variety than ever before. Given uninterrupted interstate commerce, the sources of the food supply in Kansas are country-wide, a short supply is not likely, and the danger from local monopolistic control less than ever. It is very difficult under the cases to lay down a working rule by which readily to determine when a business has become ``clothed with a public interest.' All business is subject to some kinds of public regulation; but when the public becomes so peculiarly dependent upon a particular business that one engaging therein subjects himself to a more intimate public regulation is only to be determined by the process of exclusion and inclusion and to gradual establishment of a line of distinction. We are relieved from considering and deciding definitely whether preparation of food should be put in the third class of quasi-public businesses, noted above, because even so, the valid regulation to which it might be subjected as such, could not include what this act attempts. To say that a business is clothed with a public interest, is not to determine what regulation may be permissible in view of the private rights of the owner. The extent to which an inn or a cab system may be regulated may differ widely from that allowable as to a railroad or other common carrier. It is not a matter of legislative discretion solely. It depends on the nature of the business, on the feature which touches the public, and on the abuses reasonably to be feared. To say that a business is clothed with a public interest is not to import that the public may take over its entire management and run it at the expense of the owner. The extent to which regulation may reasonably go varies with different kinds of business. The regulation of rates to avoid monopoly is one thing. The regulation of wages is another. A business may be of such character that only the first is permissible, while another may involve such a possible danger of monopoly on the one hand, and such disaster from stoppage on the other, that both come within the public concern and power of regulation."

See, also, authorities there cited.

In Wilby v. State, 93 Miss. 767, 47 So. 465, 23 L.R.A. (N.S.) 677, this court, in discussing this proposition held that a plumbing business was one which a citizen had the right to engage in without being subjected to unreasonable and prohibitive restrictions or conditions.

The statute in the case at bar may not be unconstitutional upon its face, but the statute is unconstitutional in that it invades the constitutional rights of a citizen and denies those rights to him, and this may be developed by proof. In the present case, the bill makes a case within this principle. The allegations are confessed by the attorney-general.

I therefore concur in the conclusion that the statute is inoperative, and that the former statute continues in force.