“We recognize that in Pipoly v. Benson[, 20 Cal.2d 366, 125 P.2d 482 (1942), ] the Chief Justice was dealing with a penal ordinance and that the ordinance with which we are concerned declares no penal sanction, but we nevertheless view the quoted language as applicable here.”
How later courts described this case
- “We recognize that in Pipoly v. Benson[, 20 Cal.2d 366, 125 P.2d 482 (1942), ] the Chief Justice was dealing with a penal ordinance and that the ordinance with which we are concerned declares no penal sanction, but we nevertheless view the quoted language as applicable here.”
- “We recognize that in Pipoly v. Benson[, 20 Cal.2d 366, 125 P.2d 482 (1942
- “We recognize that in Pipoly v. Benson [125 P.2d 482 (Cal. 1942)] the Chief Justice was dealing with a penal ordinance and that the ordinance with which we are concerned declares no penal sanction, but we nevertheless view the quoted language as applicable here.”
- disapproved on other grounds, PetriCleaners, Inc. v. Automotive Employees, Laundry Drivers andHelpers Local No. 88, 53 Cal.2d 455, 2 Cal.Rptr. 470, 349 P.2d 76 (banc 1960)
Written by the judges who cited it.
Later courts went against this
Disapproved on other grounds by Petri Cleaners, Inc. v. Automotive Employees, Laundry Drivers & Helpers Local No. 88, 53 Cal. 2d 455 (1960)
(Chavez v. Sargent (1959) 52 Cal.2d 162, 177, 339 P.2d 801, disapproved on other grounds in Petri Cleaners, Inc. v. Automotive Employees, etc., Local No. 88 (1960) 53 Cal.2d 455, 473-74, 2 Cal. Rptr. 470, 349 P.2d 76.)
The opinion
McCOMB, J.
I concur in the judgment in this case; also in the careful and accurate reasoning of Mr. Justice Sehauer in support of the judgment.
*217 In addition, it is my view that the field has been occupied by the people of the United States when they adopted the Constitution of the United States and by the people of the State of California by the adoption of the Constitution of this state.
The right to contract is a natural and inalienable right protected by both the federal and state Constitutions. The citizen’s rights of liberty, property, and the pursuit of happiness, which are protected by the United States Constitution and the California Constitution, apply as fully to his right to contract, unlimited by unnecessary regulation, as they do to the individual’s freedom from arrest or restraint of person. This liberty of contract, which includes contracts to work, contracts to employ, and liberty freely to make such contracts, means freedom from arbitrary restraint, subject only to reasonable regulation to safeguard the public interest.
The power to restrict the right of private contract is strictly limited to police regulations in behalf of the public health, safety, morals and welfare. The Legislature may not limit parties in their power to incorporate in their contracts, otherwise valid, such terms as may be mutually satisfactory to them. Nor does the Legislature have the power to impose regulations which infringe upon the constitutional rights of the parties making the contract.
The foregoing principles have been recognized in a long line of decisions by the Supreme Court of the United States, the Supreme Court of California, and numerous other courts of last resort. See cases cited in 16 C.J.S. (1956) Constitutional Law, § 210, p. 1065 et seq.; 11 Am.Jur. (1937) Constitutional Law, § 339, p. 1153, § 344, p. 1168.
The following excerpts are just a few which support the principles above announced and they illustrate that the federal and state Constitutions have completely occupied the field of freedom of contract, guaranteeing to citizens the broadest liberty in entering into contracts Avhich are mutually satisfactory to them.
In Allgeyer v. Louisiana, 165 U.S. 578 [ 17 S.Ct. 427 , 41 L.Ed. 832 ], the Supreme Court of the United States in discussing the right of the State of Louisiana to limit the issuance of marine insurance policies to companies authorized to do business in that state said at page 589: “As so construed we think the statute is a violation of the Fourteenth Amendment of the Federal Constitution, in that it deprives the defendants of their liberty without due process of law. . . . The liberty *218 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. ’ ’
In Twin City Co. v. Harding Glass Co., 283 U.S. 353 , at page 356 [ 51 S.Ct. 476 , 75 L.Ed. 1112 , 83 A.L.R. 1168 ], the Supreme Court of the United States said: “The general rule is that competent persons shall have the utmost liberty of contracting and that their agreements voluntarily and fairly made shall be held valid and enforced in the courts.”
In New Method Laundry Co. v. MacCann, 174 Cal. 26 [ 161 P. 990 , Ann.Cas. 1918C 1022], which granted an injunction restraining a former employee of a laundry from soliciting business from customers whose names appeared on the laundry’s list of customers, but not from receiving laundry work from customers of his former employer tendered him without solicitation on his part, the court said at page 32: “To restrain a person lawfully engaged in a laundry business from receiving unlaundered goods from certain former patrons is to sanction, to that extent, the establishment of a trade blacklist, thereby depriving such patrons, without any fault on their part, of the right to have their laundry work done where they will. The constitutional guaranties of liberty include the privilege of every citizen to freely select those tradesmen to whom he may desire to extend his patronage, and equity cannot invade or take away this right, either directly or indirectly. ’ ’
In Snell v. Bradbury, 139 Cal. 379, 381 [ 73 P. 150 ], this court said:‘ ‘ The right to acquire, possess, and protect property includes the right to make all reasonable contracts with respect thereto, and this right is guaranteed by the constitution. The right of the ‘ owner is invaded, if he is not at liberty to contract with others respecting the use to which he may subject his property or the manner in which he may enjoy it.’ (Stimson Mill Co. v. Braun, 136 Cal. 125 [ 68 P. 481 , 89 Am.St.Rep. 116 , 57 L.R.A. 726 ].)”
In Ex parte Dickey, 144 Cal. 234 [ 77 P. 924 , 103 Am.St. Rep. 82, 1 Ann.Cas 428, 66 L.R.A. 928 ], involving a statute limiting the compensation of employment agents, this court *219 said at page 237, quoting from Holden v. Hardy, 169 U.S. 366 [ 18 S.Ct. 383 , 42 L.Ed. 780 ] :" 'As the possession of property, of which a person cannot be deprived, doubtless implies that such property may be acquired, it is safe to say that a state of law which undertakes to deprive any class of persons of the general power to acquire property would also be obnoxious to the same provision (due process of law). Indeed, we may go a step further, and say that, as property can only be legally acquired as between living persons by contract, a general prohibition against entering into contracts with respect to property, or having as their object the acquisition of property, would be equally invalid.' ’ ’
In the same case, at page 238, the court said: “This right of contract common to the followers of all legitimate vocations is an asset of the petitioner in his chosen occupation, and, as has been said, is a part of the property in the enjoyment of which he is guaranteed protection by the constitution. ’ ’
In Ex Parte Hayden, 147 Cal. 649, 650 [ 82 P. 315 , 109 Am.St.Rep. 183 ,1 L.R.A. N.S. 184], we stated: “It has come to be well recognized that the liberty and the pursuit of happiness in which the individual is protected by the constitution of the United States and of the state applies as fully to his right of contract, his right to follow a legitimate vocation, untrammeled by unnecessary regulations, as it does to the freedom from arrest or restraint of his person. . . .
“Putting out of contemplation, therefore, the fundamental right of the government to subject private property to taxation and to take such property in time of public calamity and peril, the right of the state to impose burdens upon such property where the business is legitimate and innocuous,—in other words, to regulate harmless vocations,—is found in the police power alone.”
In Ex Parte Drexel, 147 Cal. 763, 764 [ 82 P. 429 , 3 Ann.Cas. 878, 2 L.R.A. N.S. 588], it was stated: “The liberty mentioned 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, 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 purpose above mentioned. . . . And the court further declare that a statute prohibiting, regulating, or interfering with private business can be upheld only under the police power, and that the police power can be rightfully exercised only when the statute in *220 question is for the protection of the public safety, the public health, or the public morals. ’ ’
On page 767 of the same case it was said: “The law, therefore, being settled that the legislature cannot prohibit or seriously interfere with the right of the citizen to make harmless contracts touching the acquisition, protection, management, and enjoyment of property,—contracts which do not wrongfully affect the lawful rights of others or the public safety, health, or morals,—the remaining question in these cases at bar is whether trading-stamps or coupons constitute contracts which are outside the protection of the constitutional principles above declared.”
In Stimson Mill Co. v. Braun, 136 Cal. 122, 125 [ 68 P. 481 , 89 Am.St.Rep. 116 , 57 L.R.A. 726 ], it is stated: “The right of property antedates all constitutions, and the individual’s protection in the enjoyment of this right is one of the chief objects of society. He has the right to enjoy his property and improve the same according to his own desires in any way consistent with the rights of others, subject only to the just demands of the state. This right is invaded if he is not at liberty to contract with others respecting the use to which he may subject his property, or the manner in which he may enjoy it. The legislature may prescribe the form in' which contracts shall be executed in order that they may be valid or binding, but it cannot limit the right of parties to incorporate into their contracts respecting property, otherwise valid, such terms as may be mutually satisfactory to them. A statute declaring invalid any contract by the owner of real property, for the construction of a building thereon, unless it is provided therein that the contract price shall be payable only in money, is unconstitutional in that it is an infringement upon the right of the owner in the possession and enjoyment, of his property.”
In Gibbs v. Tally, 133 Cal. 373, 377 [ 65 P. 970 , 60 L.R.A. 815 ], this court said: “It is also an unreasonable and unnecessary restriction upon the power to make contracts. (Citations.) It clearly contravenes the provisions of section 1 of article I of the constitution of the state, and the fourteenth amendment to the constitution of the United States. It is not—and clearly it could not be—contended that this law is a regulation which comes within what is called the police power.”
In Ex Parte Quarg, 149 Cal. 79, 80 [ 84 P. 766 , 117 Am.St.Rep. 115 , 9 Ann.Cas. 747, 5 L.R.A. N.S. 183], appears the following: “The constitutional guaranty securing to every *221 person the right of ‘acquiring, possessing, and protecting property,’ refers to the right to acquire and possess the absolute and unqualified title to every species of property recognized by law, with all the rights incidental thereto, and, in connection with the right of personal liberty, it includes the right to dispose of such property in such innocent manner as he pleases, and to sell it for such price as he can obtain in fair barter. Any statute which interferes with this right, except in cases where the public health, morals, or safety, or the general welfare authorizes such restriction as an exercise of the police power, is, to the extent of such interference, unconstitutional and void. ’ ’
In Credit Bureau of San Diego v. Johnson, 61 Cal.App.2d Supp. 834, 839 [ 142 P.2d 963 ], the court said: “The right to make lawful contracts are rights enjoyed by the citizens under the protection of the Fourteenth Amendment of the Constitution of the United States. . . .
“. . . Can it be said that the Employer’s Liability Act and the provisions of the state Constitution authorizing the statute were intended to abrogate the constitutional • right of the parties to so contract ? In approaching this problem we cannot assume that the Legislature either wilfully or ignorantly intended to violate the organic law of the United States.”
Gibson, C. J., and Traynor, J., concurred in the judgment.