Amicus Curiae Brief — Home Building & Loan Assn. v. Blaisdell

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INDEX.

‘Preliminary Statement

Summary of Argument

" “I. The statute, because of the degree to which and the

. Manner in which it subserves the general welfare in a

, ' time of emergency, springs from a constitutional exer-

cise of the: police power.........:...... ee aes

II. Certain matters which the courts judicially notice,

_ certain presumptions with which ‘they surround legis-‘=

-. lation, and the general attitude which judicial tribunals

take toward legisjation, all tend to support the act

III. The statute is not repugnant to the contract clause of

Section 10 of Article I of the: Constitution of the

United, States .... ‘

IV. The statute is not repugnant to’ the due ‘process clause

- of Section 1 of the Fourteenth Amendment to the Con-

stitution of the United States... .

' V. The statute is not-repugnant to the equal protection |

' clause of Section 1 of the. Fourteenth Amendment to the

‘Constitution of the United States eaieagen teal

Argument ........... Sinn oennadied oeonsonamccsnelivinent

. TABLE OF TEXTS AND DIGESTS. ;

Burdjck, The Law of the American Constitution, Section 196........10, 41, 50 .

Burdick, The Law of the American Constitution, Section 197........ 10,.41, 50

. Cooley, Constitutional Limitations (8th ed.), Vol. 2, p. 1231............ 22, .103

Cooley, Constitutional Limitations (8th ed.), Vol. 2, p. 1232.........2.....7, 41

Cooley, Constitutional Limitations (8th ed.), Vol. 2, p. 1234................ 8, 41

Cooley, Constitutional Limitations (8th ed.), Vol. 2, p. 1237..16, 17, 76, 77

Corpus Juris, Vol. 12, Const. L., Section, 221...................5.sceeeeeees 16, 58, 74

Corpus Juris, Vol. 12, Const. L., Section 222............ a w.--14, 59, 66

Corpus Juris, Vol. 12, Const. L., Section 22¢4..................... soak bb eansstabamaieledeccil 61.

Corpus Juris, Vol. 12, Const. L., Section 226 ................ ves Cases Be eee 14, 66

‘Corpus Juris, Vol. 12, Const: L., Section 226.............. sc icichiesheblestsisapanoaiied 5S

Corpus Juris, Vol. 12, Const. L., Section 415. :.....................ceceeeeee .:.6, 35, 39

Corpus Juris, Vol. 12, Const. L., Section 430 ......................... Rae

Corpus Juris, Vol. 12, Const. L., Section 608 .............. ceunuadihs ee

Corpus Juris, Vol. 12, Const. L., Section 417 ........ CSET CETA Ae ED Oe a

Corpus Juris, Vol. 12, Const. L., Section 894 .......................-+- icideamianadl 21, 96

Corpus Juris, Vol. 12. Con: . L., Section 962.......... RS Ie 19, 89, 91 °

Corpug Juris, Vol. 23, Evi«., Section 1810............. ica dlaalebseseiid hiuicemsiiapteread 10, 54-

Corpus Juris, Vol. 23, Evid., Section 1900............:.......csccecleeeeeeeeeee hd, 55

Corpus Juris, Vol. 23, Evid., Section 1934.................. Ce EE eee 11,57

Corpus Juris, Vol. 23, Evid., Section 1947.........:....2.....cc--cceseseesseeeees -tekh, 56

Dec. Dig., (Third), Const. L., Section 48............. 11, 16, 68, 59, 74, 98

Dec. Dig., (Third), Const. L., Section 70 (8) ....0...0.........-.00 15, 61, 62, 70

Dec. Dig., (Third), Const. L., Section 212...............g.tineeeeeeeeeteeeeeeeee 21, 95

Dec. Dig., (Third), Const. L., Section 253... — 19, 89

New Standard Dictionary, p.1018......................... Sa ceheiinateaniabiaeitaghiaanunenill 4, 26

Ruling Case Law, Vol. 6, Const. L., Section 183. :..........2......-..-....::--1---+- 5, 34

Ruling Case Law, Vol. 6, Const.:L., Section 184................2..-..-.---.11-eee+ 6, 35.

- Ruling Case Law, Vol. 6, Const. L., Section 185 ............2...-.-.-eeeeseeeseeees i

_ Ruling Case Law, Vol: 6, Const L., Section 188..............4..-.-...-.:0-.--/.----8, 44

. Warren, The Supreme Court in. United States History, Vol. 2,

. p. 735 ... OES ER Ce SE |

Words & Phrases, Vol. 3, p. 2227.....................--.. cca eieammensiicionianensnonannnitil 94

Words & Phrases, Vol. 3, p, 2232 PRR. SEwenerca aihetilessiaiared 1.94

Words & Phrases, Vol. 3, p. 2243............-....--.---c-ocsesteeseesteceeeeeseeeeees jenni ~~ oe

Words. & Phrases, Vol. 3, p.° 2253..........-.......--------cscseceeseeeeeneneneee eeeeees sitciaionne 19 ©

Words & Phrases (2d ser.), VOl. 2, p. 167...1..............::0c0seeeeeoe0 se 94

Words & Phrases (2d ser.), Voli 2, pe 170....\..........------.------2- sal aiashsalbhanatit 94

Words & Phrases (2d ser.), Val. 2, p. 175 ......2.--.-.-.----------cesescneeeesensenseneeneeeeees 94

Words & Phrases (3d ser.), Vol. 3, p. 68...........------------c-cessessescseseseesestenceneenens 94

Words & Phrases (3d ser.), Vol. 3, p. 67.....2..------.-------+-00--0010: 94

- Words & Phrases (4th ser.), Vol. 1, p: 813........ sieiecactesiialesiigahennabeiteacmenessee 94- .

Words & Phrases (4th ser:), Vol. 1, p. 815............... SLE EE AR 94 -

: TABLE OF STATUTES. ea

Agricultural Adjustment Act; Preamble to Tit. I im a 11

Emergency Rd. Transportation Act, 1933 Sections 1 and 2...:......-.....11, 57

Federal Emergency Relief Act of 1933; initial part of act................ 11, 56

-Federal Emergency Relief -Act-of 1933, Section 4 (a).....................--- 11, 56 -

National Industrial Recovery Act, of June 16, 1933, Section 1............ 11, 57

- - & ° - : ,

4 g ‘ 4 oe . ‘ # ii. o*

TABLE OF CASES.

Adams v. Milwaukee, 228 U.. S. 672.020.0020... ccccccccsececcececccictectecesececcesctecsect 103

Aetna Ins. Co. v. Commonwealth, 169 S. E. 859............ piiciietiseaticaadll 12, 60

‘American Coal Mining Co, v. Special Coal & Food Commission,

RT Ae SR SEER aes Na a a a 84, 65, 74

w American Land Co. v. Zeiss, 219 w. YAR Ee aie TR ReMi! 48

Appalachian Elec. Power Co. v. Smith, 4 a. |e aa Gear 61

Arnold &-Murdock Co. v. Industrial Comm ssion, Ett Ti. a pouaate 92

Atlantic Coast Line Rd. Co. Ve. Goldsboro, 232 U. S. 548 .

ae RE EE Oc... Tee EN, 13, 17, 19, 20, 62, 78, 90,91

Austin v. City of-New York, 258 NE Tie SI bk sidiniteis initiate sanessnlibaonensatienphisaa 46

Aymette v. State, 2 Hum h. (21 — [La a | = i.

Bachtel v. Wilson; 204° U. S. 36.. bisa ee

Bacon v. Walker, 204 U.S. 312. c...0s.2.00.oci occ ccccccece Secteecleceoeeotes

Bankers’ Trust Co. v. Russell — ) 249 N. W. 27. ;

Barbier v. Connolly, 113 U. S. 2 icciiadisiibibendencengasisnasteire

Barnitz v. Beverly,: 163 U. S. 118. :

Barret. v. Rickard, 76 Neb. 769... LTE, i

ata 6.3

Blanshard v. City ‘of New Yor | A PRR ANTM VER ce 61

Block. v. Hirsch, 256

2 10, ~18, 18, 18, 20, 43, 63, 85, 57, 62,.67, 71, 74, 88, 90, 91

_. Boston. Beer Co. v. "Massachusetts, 5 4 = See 7, 42, 71,75, 78°

Bottdorf v. Lewis, 121 Iowa i’ MaRCeRE ane een ieiceaiiia ge "20, 93

Bowditch v. Boston, 101 U.S. 16......02..0005...: SE ee eS HiT 48

Béyd v. Alabama, 94 U. S. 646. cane a isee aaaia alitiiae 71

a es Ta, BN inn neinc ens ncsnesnctensenaznnaneanscorennconsnnd 84

ae Bremen. Mining, etc., Co. v: a, 13 N. “Mex. M11... scutiinbinieeaadl 85

Brine v. Ins. Co., 96 U. | __ a e: E a ve

Brinton v. Seevers, 12 fo "389 ssiiaunianaapct aoscdh

v. Kinzie; 42 U. S. 311 esdlitdaniiiideinitbiniatactinniitia heshtmenieesionidinssition’ .18, 86

Br ooklyn Church Society v. Brooklyn Free Kindergarten Society,

- 152 N. Y. Supp. 41..................... , 26

Brown v. Maryland, 12 ‘Wiest SNCS Re 1, 10, 41, 50, 51

Brushaber v. Union Pac, Rd. Co., ey RSet Rael)

Burton v. Emerson, Shields & Co. (iewa),'4 G: Ge. 908.......:.................... 84

Butchers’ Union Co. v. Crescent City Co., 111.U. S. 746 icninencoatidietinimanate 71, 75

Cange: G. Frome & Mem Sep science

Care WV. Welbomiborm, GB Gre. Git is cnc cecctc rected cree! 21, 95°

Cawnee viseeeger, BOT Wee Oe 4, 25

Central Lumber Co. v. South Dakota, 226 U. S.°157............... 102

Chadwick v. Moore (Pa.), 8 Watts & RET EeE: 18, 83

Chamberlain v. City. of Burlington, 19 Iowa 395 4, 25

Chapman v: Boynton, 4 Fed. Supp. 43 19, 89

Charles River Bri v. Warren Bridge, 11 Pet: REHAB Metis 5:

Chas. Wolff Packing Co. v. Court of Industrial Relations, 262 U. € 522..67

Chassanoil v. City of Greenwood (Miss.), 114 So. 781......................... , 60

Chastleton Corp. v. Sinclair, 264 U. S: 543..10, 11, * 16, 55, 57, 68, 72, 73

Chicago & Alfon Rd. Co.-v. Tranbargar, 238 5? Tielantsdtealiaadiiiae 8

icago, Burlington & Quincy ‘Rd. v. Chicago, 166 U S 226 AC ne -..92

icago, rm & Quincy v. Drainage Commissioners,

de mht

Chicago, Ae het & Quincy Rd. v. McGuire, 219 U. S. 549...

Chicago, — & St. Paul -Ry. Co. v. City of Milwaukee, a

Citizens’ Ins. Co. y. Hebert, 139 La. 708 2..6, 35

City of Aurora v. oo (Ill.), 149 N. E. 784........ ESE: 8, 15, 44, 71

City of Butte v. Roberts (Mont.), 23 Pac. (2d) 342... 17, 19, 77, 90

City of — Vv. a Home, 289. Til. 206................ 6, 15,36, 69

‘ $

iv.

City of Coral Gables ‘v. Certain Lands (Fla. ), 149 So, OI ois cidiiabircatecl 94

City of Des Moines v. Manhattan Oil Co., 193 Iowa 96 hicsrsiioal 4, 9, 48

City of New Orleans v. oar 7 La. 113. ce en

- City of Rochester v. West, 51 N. Y. Supp. 482 7, 10, 42,52

bn 4 of/Westport v. Mulhelland, 159 Mo. 86 nina ...17, 10, 42, 51

Collins v. Collins; 79 Ky. 88 oat 85.

Commonweatth v. Algers (Mass), Cush. 53 saieeicue

Commonwealth v. City of Newport News (Va., 1932), 164 S. E. 689...... 30.

Soe veeneee v. Great American Indemnity Co. (Pa.), 167 a

:12, 60

Conley v. Barton, 260 U.S. 677 4 eocesee 86

Connecticut Mutual Life Ins. Co. v. Gia, 108 U; _& eee 86°

Cook County v. Chicago, 311 Ill. 324 5, 34

Correll v. Hull (Iowa), 4 G. Gr. 456....... ine ; 84

_. Cotter v. Stoeckel, 97 Conn. 244 71

. Crowley v. Christenson, 137'U. S. 86. : ‘ be Sangean

Crump v. Guyer, 60 Okla. 222 ry 92

Cusack Co. v. City of Chicago, 242 U, S. 526. Rivemoe

Vaniels v. Teraney, 102 U. S. 415. : 84 .«

Des: Moines v, Manhattan Oil Co:, 193 Iowa 1096 ‘onl

Douglas v. K¢ nnedy, 168 U. S. “488 : 15

Eckerson v. ‘Moines, 137 Iowa 452 aise lg 11, 59

: Edgar A. Levy - Leasing Co. v. Siegel, 258 U. S. 242

Edworthy v. Iowa Savings & Loan Assn., 114 Iowa 220 20, 93

_ Euclid y. Amblex © >, 272 U. S. 365...... ; ola

——— « and’ Merchan + Bank v. Federal Reserve Bank, 262 U. S. —

Farmers: Go-operative Crean‘ery v. Iowa State Ins. Co., 112 lows 608. 84

Fisher Flouring Mills Co. v. _—. 109 Wash. 680 21, 97

Fletcher v. Peck, 6 Cranch 8 ; 67

Garrison v. City of NewYork, 21 Wall. 196.. 80

Gault’s Appeal, 33 Pa. 9 stesseieeeeedl; 88,84, 95.

_ German Alliance Ins. Co. v. Lewis, 288 U. 8: 380_— ' aa

Gibbons v. Ogden, 9 Wheat. 1 _ ae ae =

ilman v. Philadelphia, 3. Wail. 718......: OSE | te

dney v. Sydnor, 172 Mo. 318 : aS

Graham v. Kingwell.(Cal.) 24 Pac. and 488.. ...6, 19, 34, 89

Green v. Biddle, 8 Wheat. 1 é @.....85

’’ Gunn v. Berry, 15 Wall. 610.... i anieiidesatiaia

- Hadachek-v. Los Angeles, 239 .U..S. 394 ; 67

Hamilton v. Kentucky Distilleries & Warehouse Co., .251 we

, 14 ....: 13, 16, 20, 48, ra 13, 92

Harmonson Vv. Wilson, Fed. Cas. No. 80

_ Henderson ge Co. v. Henderson City, 178 U. s. 92 99

. Hollister v. Deabhoe, 11 S. Dak. 197 ; sad

Hooker v. Burr, 194 U.S. 415. aac rea

Howard v. Bugbee, 65 U: S. 461: " ; acini”

Hoyt Metal Co. v. “Atwood, 289 Fed. 453 : 92

Hubbell v. Herring (Iowa), 249 N. W. 430............. 60

Hubbell v. ‘Higgins, 148 Iowa 36 ine 19, 90

Hughes v. City of Detroit, 217 Mich. 567 a 22, 102

Hunter v. Colfax Consol. Coal Co., 175 Iowa 245 11, 59

Hutchens v. Jackson (N. Mex.), 383 Pac. (2d) 355 14, 60

- Jefferson County v. Busby (Ala), 148 So, s.. Sseianinids 12, 13, 16, 60, 62, 14

_ Kirkendall v. Omaha, 39 Neb. 1 » 24

‘Koen v. State, 35. Neb. sired 7" 26

8, 17, 19, 20, 43, 77, 90, 92

Edwards v. Kearzey, 96 U. Ss 595.. ee 5)

Vv.

Lamb v. Powder River Live Stock Co., 132 Fed. 434 cae

Lake Shore & Mich. South. Ry. v. Ohio, 173 U. S. 285 selected encase

Leonard v. State, 100 Ohio St. 456 a |

Leonhart v. Board of Education (Ww. Va.) 170 he . 418

. 2, 14, 15, 60,62, 66, 68

License Cases, 5 How. 504 36

Lindsley v. National Carbonic “Gas. Co., 220 U. S. 61

22, 28, 66, 99,102, 103

Littie v. American State Bank (idich 249 N. W. 23° Silacsaniel 13, 22, 62, 99 |

Louisiana v. New Orleans, 109 U. S. 285

Louisiana v. New Orleans, 102 U. S. 203

Louisville & Nashville Rd. Co. v. Melton, 218 U. S. 86

- Louisville & Nashville Rd. Co. v.. Mottley, 219 U. 8.4

Malone v. Roy, 134 Cal. 344. ae

Maloney v. Fortune, 14 Iowa 417

Manigault v. Springs, 199. U. S. 473. 15, 17, 72, 75, 76, 77;

_ Marcus Brown: Ho ding Co. v. Feldman, 256 U.S. 170 iaaianikced 17, 19, 78,

Martin v. Blattner, 68 Iowa 286. 19,

Martin v.. Hunter, 1 Wheat. 304 ;

Mason v. City of Seattle (Wash.), 24 Pac. (34) 91 ' ae 12.

‘McCabe v. Atchison, etc., Ry. Co., 186 Fed. 966: : 11

‘McCracken v. Hayward, 43 U.S. "608

McCullough v. i Marvland, 4 Wheat. 316.

McGuire v. ay & Quincy Rd. Co., 131 Iowa 340.......6,

‘MeKeen v. Neowe = cg New Haven & Hartford Ry. ‘Co., 75 Conn 347....6,

.. McPherson v. Fisher (Ore. ds a8 Pac. (2d) 913. wesesiencn AB, 16, 62,

Memphis v. U.'S., 97 U. S. 29

Miller v. Board of Public Works (1925), 196 Cal. 477

3,°5,.6, 8, 25, 34, 36, ‘44,

Miller. v. City “of Niagara Falls, 202 N. Y. “Supp 594. 22,.1

Miller v. Wilson, 236 U. S. 372. 103

Mississippi State Tax. Commission v. Flora Drug Go. (iiss), Ae

148 So. 373 13, 62

' Missouri, Kansas & Texas Ry. Co: Vv. ey ~ U.S. 267 13, 64

Morley v. Lake’ Shore Ry. Co., 146 U. S. 1 os 80

Morrison v. State, 116 Tenn, 534 9, 47

Mt. Vernon- Woodberry Cotton Duck Co. v. Alabama: Interstate . ;

Power Co., 240 U.S. 30 43

‘Mugler v. Kansas, 123 U. S. 623...:....... PK Y YS Ff

Munn v: , 94 UL 8.113 i0, 51, 52, 53, 78, 99

Nati ine ns. Co. v. Warburg, 260 U. S. 71.. 18, 62

New. s Co. v. Drainage Commissioners, 197 U. S. 453.......... 92

- New York, etc., Rd..Co. v. Bristol, 151 U. 4. 556

Noble State Bank v. Haskell, 219 U. S. 1

Nolen v. Riechman, 225 Fed. 812

Norris v. Tripp, 111 Iowa 115...:..:...:.... saad 92

Oshkosh Waterworks Co. v. Oshkosh, 187 U. s. 437 84

Ozan Lumber Co. v. Union Coun Bank, 297 U, S. 261 , sane 9D

Packet Co. v. Keokuk, 95 U. S. —— Ss

’ Pennsylvania Coal Co. v. Mahon, 260 Us S. 39 7, 29, 4f .

‘ Pennsylvania’ Hospital v. og eg 245 u. = 20..: .....16; 76

People v, City Prison Warden, 139 N. Y¥ - Supp. 277 sag ....46, 74

People v. Coulides, 265.N. Y. Supp. 765. ‘ 14, 34, 65

People v. La Fetra, 280: N. Y. 429..............\ , 14, “5 4, 48,68, 89

People v. Nebbia, 262: N. Y. 259......... m 8,. io\ a2, 13, 45, 48, 63, 60, =

Petley v. North Carolina, 249 U.

PS as oe ist ees = Lethe” ma oS eee

alg hen dR Pal HERR EE

New Orleans Gus Co. v. Louisiana Light Co., 115 U.S. 650..............71, 2 oe

5, 6, 7, 8 8, 88, 26, 39, a, a

11, 59

_ wi. ‘

Hettin & Alpha reson a LIB Nob, Ba ey tarts |

AB... &, 9B, 94, 90, 44, 47

*hintiey ¥, Phinney, Al Me, 48 oer iil ate

‘Inktint a uf f rh ire, “Wi. bi

TRL

att. ¥.. Ohi 9, 28, BH, .108

pinout ral v Pee gag ti. 8. Ral ne 0

Pound + nity . . . ee,

re vty dis, 98 Th A. 18 ‘ ee

rt iretn’ Fratiaportation, Ce. ¥. Re. Gomi. a5 t. i) , ar

Pupet Suund F Pik Titres Print @ Uo.,. 98 Wash OB1.....:'.....::4, 86°

rity Extract iid snle Co. ¥, Ly teh, 26 U1. 8. 199 . 20, 70, 98

net ¥. Van Yeninan & Lewte Ov. vu, R. 49 6Y, 67

taytoned juniher ». Ni yea i a Light t, wtr., Co., 99 Wash. Ano AT, 19

reves ¢, pet 114 Av

Reicha Liven 8 hag te v. City of Lynchburg (Va. a tay i

adore ' Soma (Mont.), 88 Pac. (Bij 964 oars «aT

; iene v. Riek, 148 ARs, f6R ’ ey

obard "yi Brown, ¥? ath, 499 8B:

Hoche + Vater, t2 A pe | TT Teen iY

Artec ec ei! Tork Bi Se Pee

water vy, ! tale, 10 oye a as he ea Ac, «cahcet ceca taostlinbacdaiacbocilepaana e

Rutt v.. Rtelt’ nh, 220 Mich, 94 a Ey eT at eee RA, OF

Beligtt ¥. Lewis, 192 . buys cng EY A

Sha Rolanider (lowe he tu. Gr, ‘BOT os 4

‘Blaw itechowee Cases, 16 RT,

“RBintth v. Katana Cit Tite & rast Oe, i | i | SP Rr. iaelaleds 61.

Swnlth v. Gutllinan, 108 At oe WO aaer 86 -

okatie ction Core. @ hath 42 Wash 506 ees

* Standard Of Cw. vy. Clty of lige grees 244 Ry,” a 8, 24

Rtate ae sme oy 100 Re 490. A, @, 18, 16, dex ot 6, 6B, 10, mM, 8

State v. Brads ’ RH et 8

Rtate &. Dyer cl Be.) ‘. ee, ee ae | 49, 0, 62>--,

Btate v.. Prevatt (Fla.), 148 8v. gre. ecsssececgghtg 105 GB, 74:

Riate v. Dartivg (Towa), 240.N. apo di, 29, 97, 108 .

; State v. Hutehinavt Tee Cream Co, 168 Towa to 7) 14, 24, 48, 06

State v. Schlenker, 112 Towa 642. : niet

. State ¥.- Witehtill @ Rosenthal, 147 La, jet 88, 102

State v. peat {Miae. .), 849 N. Ws ls ae a: TF

State +. Louris, Mv, 307... ey Roe Lg

Rtate v. Hall (Neb.), 249 N. W. SU ete ye

oo Btate ¥. itzpatrick 198 1. B4 , hs cd Ab bicecok a la

Btate v. Morrison (8. Dak.), oH N. W. Bod... APE BR

State: +. Matriock, 88 Wash, 6:1. ; ‘Scaceareey 0, 47 |

State ¥. Pitney, 70 Wash, 608 hy eee ai

State. v. Superior Court, 24 Sa i ee 5.2/4 boas iidaan act aan ¢

State .v. Sponaugle, 46 W..V sastiist Gn sdicesaldaesl beeen een

“State vy. Harper, 182 Wis. Hh ieisksptanassssiccsueasscicenstiy a, SE EN Be

- State v. Redmon, 136 — AID SESS a Sree eee ae SCY Pan 15, 69

Steele Smith — ai Birmingham Ry. ‘Light & Power.

* : Ce. 73 Sv 7 GRUSEWh Aba cbes Sh cdabadicdrocccccy te sikbgstbenbwwoscddesdsceccncgcodbecsscasséce oneses 3, 25

Stettér v. O'Hare, 69. Ore. ‘bie, CPt TRER OT, TE a, | a

St: Louis Poster Advertising Co. v. St.. Louis 249 U. re 200. Ferner Ree ey 90. «

Stockton v. Williams (Mich. E Doug. esis utgiextionan. “toe ROE. ree 3, 24

‘Stone v. Mississippi, 101 se, at A CNT GER A NRE 71, 76

Strafford v. Sharon, 61 we SE Re On eR oeK —F

Stretch v. Board of Wavcation +" 8. Sere eeuaienccol 8, 46

epnires ad eo Fftighland Box’ Gold Mining on 00 U. 8. ba7 Rewer ccienastual 43, 90

. .

° 7 : ' : r

eee ee ee el a ee ee ee et a ee eae PG TPS , °

- : 4 -) < SED ee tee ie

fa . : ° ’ ’

oud & New Orleans fed. Co. v. Miller, 221 U.S. 408. oe wins iccbsdiedtae

Thornberg v. Jurgenson, 60 F (2d) 4 ee Eee

_ Thorpe v. Rutland @ Burin fe R. Yj Co., 27 Vt. 140 Rattzasaies 9, 48

Thresher v. Atchison, 117 Ca iabiidaadeditatuad 2

Town af Greentiver v, “4 tee Beustl Co. , 05 F (ed), 1190: 21, 9

Townend, Bx parte AAP 1 Dy 44:

Tutte v. Tufts, & titan fee 9,

a ‘United | Stites vs Des dcines Navigation ‘ iy. ‘¢ ‘., 142 U.S, 510. 14, 61, 66 .

vil. ‘se 3

vee Dry .Guods Cov, ¥. OS ia Pile Bervie ura 48 1 U. &.

Y, 57, 62, 76, 78, 90

United States ¥. Lanza, 260 U. 8. 977 © 197.62

Utah Mfrs. Ass'n v. Stewart (Utah), 28 Pac. (9d) 229 iad 49) 60

’ Vanzant v. Waddell, 10 ha i? ae 3) 260... _. 98, 103

Van Hoffman v. Quiney f » RB.

. Village of Carthane ot Peodotick, 129 1. ¥. #98 4, 6, 9, 26, 98, 48

Waugh v.. Shiter .(lowa), 249 N. W.. 246... SAME S RES 12, 60

Waiyte Towtiship.v. rg fim . ), 186°N. fi, ‘Bil. .. 12, 22, 60, 99

Welch v. Bwast if 214 ni CE SET i ccoisiacinieniceae

Wesson v. Washburn Irn liane: > 18 ‘Alien Bb. ; pom Se

West v. City of Asbury Av N. Law ion a eT iC

Whitey. Hart, 80 U. 8. 6 devia pashoiinn dehitnadet Sea

Wilder v. Campbell, 4 lie, “Oo6.. VT SEE TMT NT,

Williams v. Mayer, 69 8. Ct. ea a ae T) 16, 62, 74

Winter vi: Barret (Fla.}¢d86 N. fe iia. eng shies ssaeoul b stiladabinsnsagiadiael 94

wenn Kanne Cit . Andrew Society. v. Kansas City, - :

oo a 8 F (2d) 698... sitdudie'ieessihdeks dae ean

Wonder Bakeries Co., ine., v. v. Mhite, 9 F. Supp. ‘gif. SARE EI NAR OPS 18,62

Young v..Lemeux, 79 Cofin. 440.....:..... julia aetcaind Sa Rk AE ee: te

gcuenet er '¥. aye 178 lowe 808 ‘im Csiecigenite Lis cuteaalgieenicicdocdl it >

ahn v. Board o ublic Works, 21. 5 SR 2.14,

Zucht v.. King, 260 U: 8. 174... 7 ceeadlilnbedconicane iadietheests pesnecenencedels 22, 103

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“

- Supreme Court of the United States

OCTOBER TERM, 1933

No..370

HOME BUILDING AND LOAN ASSOCIATION:

Appellant, -

VB.

JOHN H. BLAISDELL, E‘?.AL.,

Respondents.

@ a ‘ oi

ON APPEAL TO THE. SUPREME COURT OF THE

UNITED STATES |

BRIEF AND ARGUMENT OF VERNON A. VROOMAN

AS AMICUS OURTAE

PRELIMINARY STATEMENT

The undersigned, appearing as amicus curiae in this case,

makes no attempt, in this brief, to argue in opposition to

any particular brief heretofore filed in the case.” The funda-

tnental question herein is, whether Chapter 339, , Laws of

1933 of the State of Minnesota, providing for an extension

< : —_a

of the period in which lands may be redeemed from sales

made-under foreclosure of mortgages, and. touching existing

mortgages. ‘and also sales made prior to the enactment of

the chapter, offends against the Constitution of the United

States.. The provisions of that-chapter and the facts of the

case are already before the court. With respect to the funda-

_ mental question, the undersigned begs leave to present to

this court, without direct reference to the record of the case _

to the briefs already filed herein, certain propositions

w which, as a result of his study of the Constitution, and of

the decision made herein by the Supreme Court of Minne-

-sota and reported in 249 N.W. at 334, and of many other

decisions,-he believes to be controlling on the question and

determinative of the correct doctrine as to the relation be-

tween the federal ‘constitution and the police power of a

state. ‘ . *

‘This brief is submitted in the spirit and attitude which

the Court of Appeals of the State of New York, speaking ©

through Chief Judge Pound, expressed in a recent case,

People v. Nebbia, 262 N. Y. 259, 186 N..E. 694, 699—— the

, spirit and attitude of ‘‘full respect for the Constitution as.

an efficient frame of government in _peace and war, under

normat: conditions or in emergencies, with cheerful sub-.

mission to the rule of the Supreme’ Court that ledlative

authority to abridge property rights and freedom of con-—

tract ean-be justified only by exceptional circumstances and,

even then, by reasonable regulation only, * * * add

SUMMARY OF ARGUMENT,

mie

- The statute, because of the degree to which and the man- |

ner in which it subserves the general welfare in a time of

emergency, springs from | a constitutional exercise of the |

police power. .

A. The terms: “general welfare,’’. ‘public welfare’? and

‘common welfare’’ are synonymous. as

Stocktow v. Williams (Mich.-1845),'1 tiene, 546, 570;

Kirkendall v. Omaha (1894), 39 Neb. 1, 57 N. W. 752,

' 754;

Spokdne Traction Co. v. Granath (1906), 42 Wash.

006, 85;Pac. 26]1,. 264;

rice Aymette, v. State (1840), 2 i (21 Tenn.) 154

é 158. |

Many and diverse wieitters raise questions of general wel-

fare. '

. Standard. Oil Co. v. City of Bowling Gree nN (1932),

244 Ky. 362, 50S. W. (2d). 960, .961.

Kiconomic matters. raise such questions. -

Miller v. Board of Public Works (1925), 195 Gal. 477,

234 Pac. 381, 38 A. L. R. 1479;

Pettis v. Alpha Alpha C eens (1 927), 115 Neb. 5 929,

DIN. W. 835, 838.

General welfare connotes the a of an interest

~ solely that of an individnal-or class.

See Steele-Smith Dry Goods mse mingham Ry.,

)

Light & Power Co. (1916

Ala. —_ 271, 73 |

+ So. 215, 216. !

’

- And see: Platt v. C raig (1902), 66 Ohio 75, 63 N. E. .

594, 595. et

General welfare i the welfare of all who constitute a

given community (c. ¢., a city, a State, the United States).

e —+—

‘Chambértain v. . City or Burlington (1865), 19 Towa

395,403; - -

~ Cawker'v. Meyer (1911), 147 Wis. 320, 133 N. W. 157,

159, 37 L. R. A. N.S. 510. | .

At least in certain connections a distinctiop has been

taken between ‘‘general’’ and ‘‘universal,”’’ that*being gen- -

eral which is merely extensive or widespread. Ee

_Koen v. State (1892), 35 Neb. 676, 53 N. W. 595, 596,

17 L. R.. A. 821;

Puget Sound Pub. Co. v. Fines Printing Co. (1903),

. . 33 Wash. 551, 74 Pac. 802, 805; .

e., Brooklyn Church: Society v. Brooklyn Free Kinder-

garten Society, 152 N. Y. Supp. 41, 43;

New Standard Dictionary, p. 1018, ‘defg. ‘general’.

as.an adjective.

’

“Ina sense, however, general’ (public, communes) welfare is.

in any :view of-the matter the welfare of all. That which is. mi

directly for the welfare of many may bring welfare indi-

_ rectly to all others, so that, in the ultimate, the welfare of

_allis promoted. Individuals and classes find their ultimate .

‘welfare in the welfare of all. _ '

nd see: ‘Glies Burling ton & Quincy Ry. Co. v.

‘People (1906), 200 U. %B 561, 593, 26 S. “Ct. 341,

56 L. Ed. 596. a

B. General welfare is the sna x aim of the constitu-

fare is the most general purpose stated in the preamble to.

the constitution. All other purposes stated in the preamble

range under the one head, promotion of the general welfare.

tion, as of all organic law. Promotion of the general wel-

A constitution must be construed ‘‘in the light of the isi ;

poses for which it was ordained.”’

Commonwealth v. City of N — N ews (Va. 1932),

. 164 S. E. 689,696.

> : Pa « ¢

ae a ee

~*~ C. Ona question of general welfare, the spirit rather than

the letter of the constitution controls:

Village of Carthage v. Frederick (1890), 127 N. Y.

268, 25 -N. E. 480, 481; |

Packet Co: v. K eokuk (1877), 95 U, 8. 80, 87, 24 b. Ed.

377.

. ; D. The police: power, like the constitution, has tur its ob-

ject the general welfare. a

Noble State: Bank v. Haskell (1910), 219 ‘U.-S-104,

1]1, 31S. Ct. 186, 55 L. Ed. ne R. A.N.S. .

1062, Ann. Cas. 1912 A 487.

All proper objects of the police power range under the one

head, promotion of the general welfare, and numerous defi-

_ nitions and characteristics of the power embrace the term

_ “general welfare’’ in such manner as to make clear that the v.

_ promotion of that’ welfare is the essential office of the power,

and tlie foundation of every exercise thereof.

12 C. J., Constitutional Law, sec. 430.

And see: ;

- .Miller v. Board of Public Works (1925), 195 Cal. 477,

. 234 Pac, 381, 383, 38 A. L. R. 1479;

Pettis v. Alpha. Alpha Chapter (1927), 115 Neb. 525,

213 N. W. 835, 838;

State v. Bassett (1924), 100 Conn. 430, 123 Atl..842,

' 87 A. L. R. 131; (United States Supreme Court

decisions cited) :

Cook County v. Chicago = 311 Ill. 324, 142 N. E.

512, 516, 31 A. L..R. 44 Ne

And the following recent cases:

Graham v. Kingwell (Cal.), 24 Pac. (2d) 488;

People v. Coulides, 265 N. Y. Supp. 765, citing "Baker

vz Walker, 204 U. S. 311, 27S. Ct. 289, 51 L. Ed. |

“499, .

\E. Iti isa commoplace that ‘“nolice power’ i ig difficult of

de nition. 0

6 R. C. iL. Constitutional Law, sec. 183.

2 ot

. cov

Broadly considered, “police — is synonymous with ;

‘“sovereign power.’’

: 6R. C. L.,, Constitutional’ ioc séc. (184;

eee” 12 R: C. L. , Constitutional Law, sec. 415;

~ Citizens’ Ins. Co. v. Hebert (1916), 189 La. 708, ny,

71 So: 955, 958.,

a mee 8 5g Te

a Ft, RAP, peepee!

no-one 9 + oon

tion of sovereign power. y

Chicago, Burlington & sis Ry. Co. v. Peo le

(1905), 200 U. S. 561, 588, 26S. “Ct. 431, 56 L. Ed.

596 ;

- - Maller a Sand of Public Works (1925), 195 Cal. 477,

eke 234 Pac. 38", 3A. L. R. 1479;

ier McKeon v. New Y ork, New Haven & Hartford Ry.

para Ste - Co. (1902), 75 Conn. 347, 53 Atl. 656, 657, 61. p

_R. A..730, quoting: from The License Cases,"

How: (46 U.S.) 504, 583, 12 L. Ed. 256; -

State v. Bassett (1924), 100 Conn. 420, 123° “Atl. 842,

.. 43, A. L. R: 131;

City of Chicago v. Washingtonian Home (1919), 289.

Ill. 206, 124°N. E. 416, 419.

‘Less broadly a ee | police power is sovereign power

as exercised to. meet some great public need.

Nable State Bank v. Haskell (1910), 219 U. S. 104,

111, 31S. Ct. 186, 55 L. Ed. 112, 32 L. &. A. N. S. oe

1062, Ann. Cas. 1912 A 487.

~Thus it is ‘‘society’s ; natural sae of self Mtiiais: sie

McGuire v. Chicago, Burlington & Quincy Ry. Co. |

1208), 151 Iowa 340; 354, 108 N:. W. 902,: 907.

And see: . ‘ss

Be 2. iccdiaaitcnea Law, see. 415, and f. n. 13:

Barret v. Rickard een. 76 Neb. 769, 124 N. W. "153, c

155-6;

Pettis v. Alpha Alpha Chapter (1927), 115 Neb. 529,

- 213 N. W. 835, 838: =

F. As to the relation between the police power ‘and the-

~ eA —wimerreR, Oke

The exercise of the ‘police power is at least a manifesta- .

Bie, noes

letter of the constitution, a balanee-of- welfare theory seems

- to be developing.

The process of inclusion and exclusion i is gradually mak-

ing out the boundaries of the power. ie ,

6 R.C.L,, Constitutional Law, sec. 185;

Noble State Bank v. Haskell, supra, (219 U.S. 104, |

name ‘My.

The saad whether Loitiidie contravening the letter

of the constitution is unconstitutional involves, among other

things, the degree to which the legislation promotes the gen-

eral welfare.

Pennsylvania Coal Co. v. Mahon, supra, (260 U.S.

393, #16). ie

G. The title may balance its police peer nidinat the let-

__ ter of the federal constitution.

The police power is inherently the state’ Ss.

12 C. J., Constitutional Law, sec. 447; ,

-2 Cooley, Constitutional Limitations (8th ‘ed. )) Pp

1232, = \

Se a ——

The federal constitution has not deprived the state ‘of the

_ power.

Brown v. Maryland (1827), 12 Wheat. (25 U.S. 4 419,

443 ;

Boston Beer Co. v. Massachusetts (187 7), 97 U. 8. 25,

33, 24 L. Ed. 989;

on v. Schlenker (1900), 112 Iowa 642, bot. 649, 84

.N: W. 698, 699, 51 L. R. A. 347, 84: Am. St. Rep.

360;.

State v. ’Fitepatrick (1888), 16 RB. 1 54, 11° ‘Atl. 767,

769;

| City of Rochester v.. West (1898), 29 App. Div. 125,

_ ol N. Y. Supp. 482, 484;

City of Westport v:.Mulholland G00), 159 “Mo. 86,

60'S. W. 77, 78, 53 L. R.A. 44

Re the contract clause of the federal eoiaotibution, a

aaa ee

= oe ig

—"s The _— of the American Constitution, secs.

* 196 and 197. :

Re sg due pro¢ess and the equal protection clause.

2 Cooley, —— Limitations = ed. ), Pp

1234, f. n.

HL Chanane’ in ‘conditions, whether gradual or siden,

may render promotive of general’ welfare, and constitu-

tional, measures. that formerly would. not have been so.

Block v. Hirsch (1921), 256 U. S. 135, 155,41 S. Ct.

/458, 65 L. Ed. 865, 16 A. L. R. 165;

Edgar'A. Levy Leasing-Co. v. Siegel (1922), 258 U.S.

242, 246, 6 S. Ct. 289, 66 L. Ed.595; -

6 R. C. | 2 Constitutional ‘Law, sec. 188; |

Martin v. Hunter (1816), 1 Wheat. (14 U. Ss. ) 304, 326; .

, Miler v. Board of Public Works (1925), 195 Cal. 477,

234 Pac. 381, 383;

Pettis v. Alpha Alpha Chapter (1927), 115 Neb. 545, :

: 213 N. W. 835, 838;

we City of Aurora v. Byrne 319 Ill. 84, 149 N.E. 784, 788;

| 147 N. W. 779, 781, Ann. Cas. 1917 A. 760; —

~ People v. Seca (1933), 262 N. Y. 259, 186 N.E: 694,

+ 699.

Stretch v. Board of Education (1914), 34 S. D. 169,

| I. An- economic depression may conuttinige or comprise

such an emergency as justifies an 1 unusual exercise of the

police power. "

General w elfare embraces economic _

State v. Hutchinson Ice Cream Co. (1914), 168 Iowa

1, 10, 147 N. W. 195, 199, L..R. A. 1917 B. 1918;

Pettis v. Alpha Alpha Chapte: (1927), 115 Neb. 525,

- 213 N. W. 835,.838.

Various definitions of police power refer to : ‘ prosperity,”

“economic welfare,’’ ‘‘economic concern,’’ etc. |

Bankers’ Trust Co. v. Russell (Mich.) 249 N. W. 27,

"29 (United States Supreme Court ‘decisions

cited.) : ‘

~ Promotion of such objects is sities stated . to be

-among the reasons for the exercise-of the power. --. -

Chicago, ery gton & Quincy Ry. Co. v. ‘People,

} supra, (200 U.S. 561, 592) ;

' Noble State Bank %. Haskell, supra, (219 U. S. 104,

111); _ .

anes Walker, 204 U. S. 311, 318, ‘51-B/ Ba: 499, 27

3 t. 291; . >

Bar bier v. Connolly ie 113 U. S. 27, 31, XS. Ct.

357, 28 L. Ed. 92

Women’s Kansas City 8 St. Andrew Society v. Kansas

City (1932), 58 en Bee 599 ;

City of Des Moines v. Manhattan Oil Co. (1922), 193

| = 1104, 184 N. W. 823, 23 A. L. R.

Pr v. Ce (1921), 230 N. Y. 429, 130 N. E.

Stetter v are (1914), 69 Ores 519, 531, 139 Pac.

. 743, 747, Ann. Cas. 1916 A 217, 222;

State v. Pitney (1914), 79 Wash. 608, 140 Pac. 918, -

919, Ann. Cas. 1916 A, 209;

Ex parte Townsend (1911), 64 Tex. Cr. 350, 144 S. W. |

; 628, 631, 33 ‘Ann. Cas. 1914 C 814,817;

State v. Mamlock (1910), 58 Wash. 631, 633, 109 Pac.

_ 47, 137. Am. St. Rep. 1085;

Morrison v. State (1500); 116 Tenn. 534, 543, 95 S.-W.

_ 494,496; -

- Village ‘of Carthage v. Frederick (1890), 122 N. y.

* ~ 268, 25 N. E.. 480, 482; :

Thorpe v. Rutland é Burlington Rd. Co. (1854), 27

. Vt. 140, 149, 62 Am. Doc. 625, 633.

_ J. The statute is not, and does not profess: to be, a cure

for the depression or any phase of the depression, but merely

a means of ameliorating, during the economic emergency,

a certain condition fraught with _puplic Getcinaget and dan-

. ger.

It is to be noted, bi that the statute is a legislative exer-

cise of a legislative power, and not in any sense or degree

an abdication of such pone: , 3

= natn SID cee

K. The police power is older than any ‘constitution, and

although it has never remained entirely unused in this coun- —

try, the exercise of the power has’become more and ‘more.

_ frequent and varjed during the past generation. :

City of Rochester v. West kaoen es 51 N. Y. Supp. 482;

484;

Brown v: Mar yland, 12 Wheat: (25 U. S.).419, 443 ;

- 1 Warren, The Supreme Court in United States. His-

° . tory, p. 695, f. n. 2;

Munn v. Timoke, 94 U.S. 113, 125, 24°L. Ed. 77;

People v. Ne bia (1933), 262 N. Y. 259, 186 N. E. 694,

698; :

Leonard v. State (1919), 100 Ohio St. 456; 197 N. BE. :

464, 46);

City of W stport U. Mulholland (1900), 159 Mo. 86,

60 S. W. 70, 78, 53 L. R. A. 542;

Chicago, ilwaukee & St. Paul Ry. Co. w. City of Mil-

—.° waukee (1897), 97 Wis. 422, 1 N. W. 1118, 1123;.

Burdick, The Law of the American Constitution, secs.

196. ‘and 197 ;-

2 Warren, The Supreme Court i in United States His-

tory, B p. 735 et seq:, esp. 740-42.

r be ‘a ot , IL. ; Pen

‘Certain matters which the courts judicially notice, certain

presumptions. with which they surround legislation, and

the general attitude which judicial tribunals take toward :

legislation, all tend to support the act. ; :

> See The court knows that a grave economic ompengency

exists. ~~: «8%

The courts judicially notice matters ‘of common knowledge. :

23 C. J.; ee sec. ». 1810.

' %

.°

’ This court’ has heretofore judicially taken notice of an

"emergency.

Block.v. Hirsch, supra, (256 U.S. 135, 154) ;

Chastleton Carp. v. Sinclair’ (1924) 264 U. S. 543, 547,

68 L, Ed. 841, 44 S. Ct. 405.

yeaa —11— |

This court kiiows that on ‘March 6,.1933 the President,

- proclaimed the existence of an economic emergency..° /

+ 23 C. hy , Evidence, sec. 1900. -«. - Re .

- The Federal on Relief Act; the Agricultural Ad.

justment Act, the National Industrial Recovery Act, and

the Emergency Railroad ‘Transportation Act, have apprised 0,

‘ this court of the existence of ‘an emergency.

a: 230.48., Evidence, sec. 1947.

eel WAY

_ - ‘Dhe. court must tikes judicial notice of statements in the

Congressional Record concerning the economic depression.

23-0. J., Evidence, sec. 1934, and foot notes, particu-

larly. fn. 95 -(a, 4). i

This court knows of the ae of a public exigency in

Minnesota in ‘connection with foreclosures of real estate

mortgages. : fad ae

* Block v. irish: supra, (256 U. S. 135, 154); :

Chastleton Corp. v.. Sinclair, supra (264 U. S. 543,

547);

Union ‘Dry Goods Co. v. Georgia Public Service Corp. “

; 248 U. 8. 372, 39 S. Ct. 117, 9 A. L. R. 1420;

State v. Moeller, 249 N. We 330,

B. There ‘i is an almost overwhelming presumption. that

an act of Congress: or a State Legislature is constitutional.

‘Third Dee. Dig., Constitutional, Law, sec. 48;

12 C, J:, Constitutional Law, secs. 221 and 299 ; rer.

McCabe. v. Atchison, etc., Ry. Co. (1911), 186 Fed.:

: 966; affd. 235 U. Ss. 151, 59 L, Ed. 169, 35 S: Ct. 69;

Eckerson v. Des Moines (1908), 137 | Towa 452, 115

'. OLN. W. 177;

Hunter v. Colfax Consol. Coal Co. (1916), 175 Iowa

ao 245, 154.N. W. 1037, L. R. A. 1917 D, 15, Ann.

. Cas. 1917 E, 803 ; “ous

Nolen v. Riechman (1915), 225 Fed. 812;

g ounkot v. Susong (1916), 173 Iowa 663, 156 N. W. |

Utah Mfrs. Ass’n

ae eae - —12—

- Waugh v. Shirer (Iowa), 249 N. W. 430, 435;

Jefferson. County v. Busby (Ala.), 148 So. 411, _

State v. Dyer (Fla.), 143 So. 201, 203; -

State v. Prevatt (Fla.), 148 So. 578, 579;

- Wayne Township v. Brown (Ind.), 186 N. E. 841, 847;

Chassanoil v. City of Greenwood (Miss.) ), 114 So.

781, 783;

Rider v. Cooney (Mont. ), 23 Pac. (2d), 261;

State v. Hall (Neb.), 249 N. W.-756, 758-9;

People v. Nebbia,. 962 N. Y- 269, 186 N. E. 694, 699;

Commonwealth v. Great American Indemnity Co.

(Pa.), 167 me wig 197-8; |

Stewart (Utah), 23 Pac. (2d)

229, 232; .

Richmond Tiinen Sepale Co. v. City of Leniiiiinre

' (Va.), 169 S. E. 554;

| Aetna Ins. Co. v. Commonwealth (Va.), 169 S. E. 859,

864 ;

Mason v. City of Seattle (Wash.), 24 Pac. (2a) 91, o;.-

Leonhart v. Board of Education al Va. )s 170 s: E.

+418, 421.

e court is not concerned with the smetives of a State

Legislature any more than with those of. Congress.

United States v. Des Moines Navigation & Ry. Co.

(1891)3142 U. S. 510, 544, 12 S. Ct. 308, 35 L. Ed.

1099 ;

12.C. J., Constitittional Law, sec. 204.

Third Dee. Dig., Comstitutional Law, sec. 70 (3);

Smith v. Kansas City & Trust Co. Soa 255

U.S. 180, 210, 41'S. Ct. 243,

U.S. 146, 161, 40 8.-Ct. 106, 64 L.

: hall

| Appalachian Elec. Power Co. »% Smith = C., W. Va.)

4 Fed. Supp. 6, 22;

Blanchard v. City of B New York, 262 N: Y. 5, 186 N.

_E. 29,-32. .

D. The court is not concerned with the eben or policy

- of legislation.

Third Dee. Dig. Constitutional Law, sec. .70 (3) ;

‘ ‘ *. ote ‘

National Union Fire. Ins. hie v. Warburg (1922),

260 U.S. 71 (segai7), 43 S. Ct. 32, 67 Ly Ed. 314;

United States v: Lanza (1922), 260 U. S. 377. (see 385)

. 43 8. Ct. 141, 67 L. Ed. 314;

Hamilton v. “Kentucky Distilleries Co., ne (251

; U.S. 146, 161) ;

_ Block v. Hirsch, supra, (256 U. S. 135, 138) ;

Union Dry Goods Co. v. Géorgia Public Service Corp. i

supra, (248.U.S. 372, 374) ;

Atlantic Coast Line Rd. Co. v. Goldsboro, supra, (232

U. S. 548, ema |

Recent cases:

Williams v. Mayor, 53 S. Ct. 431, 433;

Wonder Bakeries Co., Inc: v. White, 3 F. Supp. 311;

Jefferson County v. Busby (Ala.), 148 So. 411, 413;

State v. Dyer (Fla.), 143 So. 201, 203-4;

Mississippi State Tax Commission v. Flora Drug Co.

(Miss.), 148 So. 373, 377;

Little v. American State ‘Bank (Mich.), 249 N. W. 22,

23;

People. v. Nebbia, 262 N. Y. 269, 186 N- E. 694, 699:

McPherson v. Fisher (Ore.), 23 Pac. (2d) 913, 914:

‘. State v. Morrison (S. Dak.), 249 N. W. 563, 565;

Leonhart‘v. Board of Education a Va. ); 170 8. KE.

418, 421.

' E. The legislature's is the first judge of whit i is tal the

- greatest good of the greatest number, and so for the true

ultimate good of all. '

Missouri, Kansas & Texas Ry. Co. v. May (1904), 194

U. S. 267, 270, 24 S. Ct. 638, 48 L. Ed. 971;

State v. Bassett (1924), 100 Conn. 430, 123 Atl. 842,

| 37 A. L. R. 131,

F. peers the court can overtarn the act, the court must

find that the legislature made a mistake as to whether there

is any basis in fact for a finding that the public welfare

is jeopardized, else a mistake as to whether there is any

ali

reasonable connection betes een the provisions of the act and

the thing which jeopardizes that welfare.

Americ an Coal Mining Co. v. Special Coal & Food —

Commission (1920), 268 Fed. 563; (1921) appeal

‘dismissed, 258 U.S. 632, 66 L. Kd. 801, 42 S. Ct.

278. war.

And see's,

State v. Harper (1923), 182 Wis. 148, 196.N. W. 451,

=, 33 A. L. R. 269; ’

State v. Coulides, 265 N. Y. Supp. 765, 768, (recent

case).

A legislature is presumed to*have passed an act with full -

_ knowledge of existing conditions and to have found the facts

on which its power to. act must be predicated. .

12.C. J., Constitutional Law, ‘sees. 222 and 225;

United States v. Des Moines Navigation € Ry. Co.,

= supra, (142 U.S. 510, 544) ;

| State v. Hutchinson Ice Cream Co. (1914), 168 Iowa

1, 147 N. W. 195, L. R. A..1917 B, 198; (1916)

, alfa. 242 U.S. 153, 37S, Ct. 28, 61 ® Kd. 217;

Hutchens v. Jackson (N. Mex. ), 23 Pae. (2d) 355,

‘(recent ease) ;

Leonhart'v. Board of Education (W. Va.), 170 S. EK.

418, 421, (recent case). -

3 air

It seems the presumption is fortified whibe a basis in fact

for the legislation obviously exists, as where the existence

of the basis is a matter of judicial knowledge, and that where

there is reasonable doubt whether such basis exists the pre-

sumption controls.

Zahn v. Bd. Ly Public Works (1925),. 274 U. S. 325,

' 328,47 S. Ct. 594, 71 L. Ed. 1074;

The Chastleton® Corp. v. Sinclair, supra, (264 U. S.

543, 547);

People v. La Fetra (1981), 230 N. y. 429, 130 N. E.

601, .604;

initia v. Board of Education va), 170 S. E.

» 418, 421, (recent case). ‘ |

Legislation ‘“necessary for the pute welfare”’ is legisla-

tion tliat has such a basis.

- State v. ‘Redmon (1907), 134 Wa’ 89, 114, N. Ww. 137,

~126 Am. St. Rep. 1003, 14 L. R. ‘A. N- S. 229, 15

Aun. Cas. 408, an

And see:

Chic ago v. Washingtonian Home (1919), 289 II]. 206,

aoe ee K,. 416, 419, 15 Ann. Cas..408. :

The only other requirement is that the legislation shall

amount to some reasonable way of meeting the yee

or danger which the situation unfolds.

_. Third Dee. Dig., Constitutional Law, sec. 70 (3) lowe

Die p. 557) ;

Chicago, Burlington € Quincy Ry. Co. v. People,

supra, (200 U. 8.561, 592) ;

Block v. Hirsch, pee, (256° U.S. 135, 158) ;

City of Aurora v. Burns, 319 Ill. 84,.149 N. E. 784, 787 ;

State v. Bassett (1924). 100 Conn. 430, 1238 Atl. 842.

37 ALL. R. 134;

State v. Harper (1923), 182 Wis. 148, 196 N. W. 451,

452-3, 33 A. L. ‘R. 269.

G. Relative to matters of geniral welfare, a legislature

. has a wide discrétion.

Manigault v. Springs (1905), 199 U.S. 473, 480, 26.

S. Ct. 127, 50 L. Ed. 274;

State v. Bassett (1924), 100 Conn. 430, 123 Atl. 842,

37 A. L. R. 134.

= *4 limit i in time, to tide over a passing trouble, well

may justify a law that t could not ‘be — asa permanent

change.’’

Block v. Hirsch, supra, (256 U. S. 135, 157).

. And see:

The Chastleton Corp. v. Sinclair, supra, (264 U. B.

«548, 547).

But emerggeney legislatiefi may oxtond>wifficiently beyond =

eericste-eutird against its after effects.

Panini v. Kéntucky Distilleries Co., supra, (251

UL 8.146, 161).

I. It does not devolve upon appellees to show that the

statute is constitutional, but upon — to show, if pos-

gible, that it is not.

12 C. J., Constitutional ae sec. 221;

Third Dee. Dig., Constitutional Law, sec. 48 (see p. |

473) ;

People v. City: Prison Warden, 154 App. Div. 413,

7139 NW. Y. Supp. 277, 286.

Recent cases in ‘point:

Williams v. Mayor, 53 S. Ct. 431, 433;

Jefferson County v. Busby (Alay., 148 So. 411, 413;

State.v. Prevatt (Fla.), 148 So. 578, 579;

McPherson v. Fisher (Ore.), 23 Pac. (2d) 913.

Mm..

The statute is not repugnant to the contract clause of

Section 10 of Article 1 of the Constitution of the United

States.

A. The letter of the clause sometimes yields to consider-

ations of general welfare.

. Penns ylvania Hospital v. Philadelphia (1917), 245

4 S. 20, 23, 38 S. Ct. 35, 62 L. Ed. 124;

Union Dry Goods Co. v. Georgia Public Service Corp.,

supra, (248 U. S. 372, 377) ;

2 Cooley, Constitutional Limitations (sth ed. ), Pp

1237 ;

| —17—

Third Dee. Dig., Constitutional Law, See, 117.

B, ‘Contracts are ——s subject to —— to ‘tee

exercise of the police power. ~

Third Dee. Dig., Constitutional Law, sec. 417;

~ 12 C. J., Constitutional Law, sec. 603 ;

2 Cooley, Constitutional Limitations (sth. ed. .), p

1237;

Edgar A. Levy. Leasing Co. » Supra, (258 U. S.. 242,

. 249) ;

~ Marcus Brown Holding Co. v. ‘Feldman (1921), 256

U. S. 170, 198, 41 S. Ct. 465, 65,L: Ed. 877 ;

1+ ° Atlantic Coast Line Rd. Co. v. Goldsboro, supra, (232

~ U.S. 548, 558);

City of Butte v. Roberts (Mont. ), 23° Pace. (2d) 342, i}

en case). MT f

C. Otherwise, individualé could control thee police power

. and defeat the general welfare. . -

_ Manigalt v. Springs, supra, (199 U. s. 473, 480) ;

12.:C. J., Constitutional Law, sec. 603;

Raymond Lumber Co. v. Ra ymond Light, etc., Co.

(1916) ), 92 Wash. 330, 159 Pac. 133, 136, L. R. A.

- 1917 C. 574.

- D.. The viii of contracts does not protect them from

the exercise of the power. The sacredness of contractual

. obligations was not the reason for incorporating the clause

into the constitution.. The reason probably was, to discour-

age repudiation of debts by the states.

E. Ifa sheriff’ 8 certificate of sale evidences a contract

between him or, the state and a purchaser at an execution

sale, the obligation of that contract, like the obligation of any

-: other contract, is. Secondary to the matter of public welfare,

which is the primary concern of all law. :

F. Whether a legislative act validly impairs the obli-

gation of-contract does not depend upon whether the act

ey.

| SHER ne AR

| —18—,

—— the = or were the acetal law pertaining

to contract.

Block v. Hirsch, supra, (256. U.S. 135, 158);.

Chadwick v. Moore (Pa., 1844), 8 Watts & igen

™.

G. If on the police power the legislature ean inter-

fere with the remedy, the legislature can 80 interfere: at any

stage of the remedy. It would be anomalous if general wel-

fare were the paramount consideration at one. pom but not

~ at another.

- H.. Cases like ree v. Kinzie (1843), 42 U. S. (1 low: )

311, 11 L. Ed. 143; Barnitz 4. Beverly (1895), 163 U. 8. 118,

16 S. Ct. 1042, 41 L. Ed. 93; ete., ete.; containing hardly an

intimation about police power or emergency legislation, are

of no value on the question whether the adjective as well as

' the substantive law shall not yield to the police- power and

the exigencies of public welfare. _

It is not’ without reason that in a recent case, Addis v.

_ Selig, 264 N. Y. Supp. 816 (see top of 824), consideration of

the police power is eliminated from. an opinion in which

Bronzon v. Kinzie, supra, is discussed.

If cases, state or federal, like Bronson v. Kinzie, and

Barnitz v.. Beverly, may. by any remote possibility be re-

garded as emergency or police-power cases, they must yield

to principles announced in later decisions of this court.

Iv.

The statute is not repugnant to the due process clause of

Section 1 of the Fourteenth Amendment to the Constitution .

of the United States.

A. The letter of the due process jr yields to con-

' siderations of general welfare. ;

—19— : |

Third Dec. Dig., Constitutional Law, sec. 253;

_ 12 C.J., Constitutional Law, sec. 962, citing numerous

United: States Supreme Court and other deci-.

sions; ie:

3 Words and Phrases, p. 2253;

_ Edgar A. Levy Leasing Co. v. Stegel, supra, (258

U.S. 242, 247);

Marcus Brown Holding Co. v. Feldman, supra, 256

' U.S. 170; ae

. Umon Dry Goods Co..v. Georgia P-blic Service Corp., :

supra, (232 U. S. 548, 588) ;

People v. La Fetra (1921), 230 N. Y. 429, 130 N. EB,

’ 601, 605-6; | .

Chapman v. Boynton,-4 Fed. Supp. 43, 46 (recent

case), citing several United States Supreme

Court decisions;

Graham v. Kingwell (Cal.), 24 Pac. (2d) 488, 489,

recent case).

All property is held subject to the possibility that

under the police power it may be taken notwithstanding the -

due process clause. Every contract or property right,

whether vested or not, is inherently subject to the possi-

. Dility.

12 C. J., Constitutional Law, sec. 962; |. Ree

we Coast Line Rd. Co. v. Goldsboro, -(232 U. S.

048) 5 : ae |

Chicago, Burlington & Quincy Ry. Co. v. People,

supra, (200 U. S. 561, 588) ; |

Mugler v. Kansas (1887), 123 U. S- 623, 8 S. Ct. 273, .

81 L. Ed. 205; 3 | ao

Hubbell. v. Higgins (1910), 148 Iowa 36, 126.N. ‘W.

914, Ann. Cas. 1912 B, 822; ! :

Martin v. Blatiner (1886), 68 Iowa 286, 289, 25 N. W.

131, 133, 135, 27 N. W. 244; | :

| City of Butte v. Roberts (Mont.), 23 Pac. (2d) 349.

C. So far-reaching is the police power in its relation ‘to

the due process clause that notwithstanding this clause a

ss, ;

. process.”

a | a ——-

person may, under the igen be depiived of property with-

out compensation. _ :

Edgar A. Levy Leasing Co. v. ‘Siegel, supra, (258

i U.S. 242, 247); . "

Block v. Hirsch, supra, (256 U.S. 135, 156);

Hamilton v. Kentucky Distilleries Co., supra, (251

U.S. 146);

Atlantic Coast Line Rd. Co. v. Goldsboro, supra, (232

U. S. - sai nThiy

D. aie like Bottdorf v. Lewis (1903), 121 oe 27, 95

N. W. 26, and Edworthy v. Iowa Savings & Loan Assn.

(1901), 114 Iowa 220, 86 N. W. 315, which are not: police-

power or emergency-situation cases, are of no value on the

question whether vested or property rights are not as sub-.

‘ject as any other rights to yield to the police power, in time

of i slid upon considerations of ease welfare.

-E. The statute must be. balanced, in point of general wel-

fine, against the letter of the due process clause, and the

‘question answered whether the statute manifests a merely

arbitrary attempt to supervene the letter.

’ Purit Extract and Tonic Co. v: ‘Lynch (1912), 226

. S. 192, 204, 33 S. Ct. 44, 57 L. Ed. 184; _

State v: Bassett (1924), 100 Conn. 430, 123 Afl. 842,

fs, ” & L. R. 131. :

F. Although the legislatuse ‘could, under the police.

power, for the public benefit, deprive appellant and others

of property without due process of law, the legislature has

not deprived — of — whatsoever without such

" Rvidently arpellcnt’t has had a hearing upon proper no-

_ tice, with notice and hearing according to the laws ap-

plicable to other like cases within the purview of the statute,

and with the same laws applied to the facts of tlie case as

are applicable to the facts of all other like cases, and ‘with

these laws applied in the same manner in which they are ap-

plicable to all other cases like the case at bar.

H. A Tedemption law i is ‘‘ rious to the rights of prop-

_erty.’’

Gault’s A ppeal (1859), 33 Pa. 94, 98;

Caro v. Wollenberg (1913), 68 Ore. 420, 136 Pac. 866,

869.

ao ae

The statute i is not repugnant to the equal protection ides

of Section 1 of the Fourteenth Amendment to the Constitu-

tion of the United States.

‘A: The equal ae clause yields t to consider ations

of general welfare. , |

Third ‘Dec. Dig.; Constitutional Law, sees. 117 and

a 212;

12 C. J. , Constitutional Law, sec: 894;

Barbier v. Connolly, supra, 113 U. S. 27,31;

Fisher Flouring Mills Co. v. Brown. (P24) 409 ae

+680, 187 Pac. 399, 403. - |

B. But the statute i is not yon legislation.

aa protection in a statute applicable to all alike who are

_ in the same situation or the same natural.classification.

Town of Green Riger v. Fuller Brush Co., 65 F (2d)

~ 112, 114-5, ( nt case), citing several decisions

~ of the Supreme Court of the United States;

State v. ~_ (Iowa), 246 N. W. 390 (recent case).

Barbier v. on ie supra, (113 U. S. 27, 32);

' There.is neither unjust discrimination nor the denial of

"Ee

ie. *

C. - Reasonable classification has never’ been: held un-

constitutional.

Third Dec. Dig., Constitutional Law, sec. 48 en P.

474);

Little v. American State Bank Lam. ); 249 N. wW. 22,

23,. (recent case). ra)

The legislature has wide Hindelion to make a classifica- .

tion on any reasonable basis. The existence, at the time of

a legislative enactment, of any conceivable reasonable basis

for the classification must be assumed and the burden of -

‘showing that no such basis then, existed is upon whoever

. assails the classification as arbitrary.

Lindsley v. Natural Carbonic Gas Co. (1911); 220

U. 8. 61, 78, 55 L. Ed. 369, 31S. Ct. 337, Ann.

Cas. 1912 C, 160; i

Wayne Township v. Brown\(Ind.), 186 N. E. 841, 850,

-. . (recent case); ~ 3

State v. Superior Court (Wasgh.), 24 Pac. (2a) 87, 88.

D. If, in behalf of the general welfare, Lngisbition touches

a certain field, the legislation need not cover the whole field

in order not to:offend against the equa protection clause.

Cooley, Constitutional Limitations’ (8th ed.), p. 1231;

Farmers and Merchants Bank v. Federal Raaris |

Bank (1923), 262 U.S. 649, 661, 43 S. Ct. 651, ‘67

L. Ed. 1157, 30 A. L. R. 635;

: Zucht v. King (1922), 260 U.S: 174, 177, 43 S. Ct. o4,

~ 67 L. Ed. 194;

. City of New Orleans v. LeBlanc (1920), 139 La. 113,

\. 71 So. 248;

‘State. v. Winehill & Rosenthal (1920), 147 La. 781,

| 86 So. 181; (1922), 258 U. S. 605, 66 L. Ed. 786,

-42 8, Ct. 313, writ of error dismissed) ; :.

West.v. City of Asbury, 89 N. J. Law 402; 99 Atl. 190;

Hughes v. City of Detroit (1922), 217 Micb. 567, 187

N. W. 530;

Miller v. City of Niagara Falls (1924), 202 N. Y.

Stes 594, 207 —_ Div. 798.

ee on

-E. A faet that may not be without some significance is,

that in many cases in which the constitutionality of legisla-

tion similar to that here irivolved has been drawn into ques-

tion, the claim that such legislation i impairs the obligation

of contract has frequently been made, and likewise the claim

that it denies due process of law, but seldom the claim that

it denies the equal protection of the law. k

. Cases like State v. Loomis (1893), 115 Mo. 307, 22 S. W.

. 350, 21 L. R: A. 789,. and Vanzant v. Waddel (1829), 10

Tenn. (2 Yous: ) 259, in which emergency legislation is not

‘involved or in which the police power receives little or no’

consideration, have little force in connection with the ques-

‘ tion whether Chapter 389, Laws of 1933 of Minnesota, i is class

legislation, denying to any person or persons the equal pro- |

tection of the laws.

F. The legislature is the first judge of whether a classi-

fication is reasonable. The legislature has a wide diserétior

in the matter of classification. |

_Inndsley v. Natural Carbonic Gas. Co., supra, (220

U.S.-61, 78);

Recent case: ‘State v. Darling (iowa), 246 N. W. 390.

It would seem, also, that where the legislature i is striving

to meet an émergency, the bounds of its discretion enlarge;

the greater the emergency, the wider the discretion.: fe

Ii has even been said that special legislation is permissible _

when ‘‘designed.to meet a temporary emergency in a par- |

: * .ticular locality or in regard to a particular person, * #09

Platt v. Craig a 66 Ohio St. 75, 63 N. E. 594, 596. .

cs ee te ° ' soe *\

- emergency, ‘Springs from a comainanel exercise of the

- police power.

tter which, with respect to any interest, whatever it may

the Welfare of all who constitute a given community (e. g.,

a ‘city, a State, thé United States).

‘‘common welfare’’ are synonymous.

Stockton v. Williams (Mich:, 1845), 1 ial 546, 570;

_ Kirkendall v- Omaha (1894), 39 Neb. 1, 57 N. Ww. 152,

: 794;

506, 85 Pac. 261, 264;

, 198.

- The term. “oeeeel welfare,”? with regard to the number

- — broadest import. ne q

_ 244 Ky. 362, 50 8. W. (2d) 960, 961.

* :

i “The piiblic welfare embraces a variety of interests

‘calling for public care and control. ‘These are: ‘The

fenegta, | Freund Police Power, secs. 9, 15%.”

1,10, 147 N. W. 195, 199, L. R. A. 1917 B, 1918.

-/The statute, ‘because pf the degree to which and the man. -

| ner in.which it subserves the general welfare in a time of

A. General (public, . common) ‘welfare’ ‘embraces aia:

be fe. g.,-any social, political or economic interest), involves

‘The terms ‘‘generak welfare,” "\publie welfare”? and

‘Bpokane Traction Co. ». Granath (1906) 42 Wash.

- Aymette v. State e (1840), 2 ‘Humph. (a1 Tenn.) 154, |

and diversity of the repre it may concern, is a } term of the °

Standard Oil Co. v, SW. ) Bowling si (1932), >

primary social interests of safety, order and morals ; »

' economic interests; and ‘non-material and political in-

State v. Hetchimoon Ice Cream Co. (1914), 168 lowa |

2 —

“As ‘our civie life has developed, so has the definition

of ‘public welfare,’ until it has been held to embrace:

regulations to promote the economic welfare, public

" convenience and general prosperity of the community. si

Miller ». Board of Public Works (1925), 195 Cal.-477,+

- 234 Pac. 381, 38 A. L. R. 1479; -

Pettis:v. Alpha Alpha Chapter (1927), 115. Neb. 925,

213 N. W..835, 838. .

Not only is the term of: broad — with regard to the .

number. and. diversity of the matters it may. concern, in-

‘eluding economic interest or welfare, but also with regard

to the number of individuals and classes it concerns. It cor- ;

notes the antithesis of the special or Private interest of an

individual-or class. :

. See Steele-Smith Dry Goods Co. v. Birmingham Ry., Light — :

& Power Co. (1916), 15 Ala. App. 271, 7880. 215; 216.

. And see: Platt v. Craig (1902), 66 Ohio 75, 63 N. E. 594,

595. ; | 3 ;

_ “Mr. Webster says that ‘in general, public expresses

something common to mankind at large, to a nation,

state, city or town, and is opposed to PRIVATE, which

denotes what belongs to an individual, to a family, to

a company, or a corporation’. “

Chamberlain v. City of Dortiigten (1865), 19 Towa

395, 403.

‘‘The Century Dictionary defines it. [publie} as: ‘Of |

or belonging to the people at large; relating to or affect-

‘ing the whole people of a state, nation or community;

not limited or restricted to any particular class of. the

‘eommunity.’ The New Internatiorial defines it as:

“Of or pertaining to the people; relating to or affecting

a pation, state or conimunity at large’.’””

Cawker v. Meyer (1911), 147 Wis. 320, “133 i. W: 157, |

/159, 87 ER. ALN. 8. 510.

— ™-

At least in certain connections, a distinction has’ been -

- taken between ‘‘géneral’’ and ‘‘universal.’’

Koen v. State (1892), 35 Neb. 676, 63 N. We: 595, 596,

17 L. R. A. 821; ‘ vA

Puget Sound Pub.. Co. v. Times Printing Co. (1903),

~*~ 33 Wash. 551, 74 Pac. 802, 805; / a

Brooklyn Church ‘Society v. Brooklyn Free Kinder- ~

garten Society, 152 N. Y. Supp. 41, 43;

New Standard Dictionary, p. . 8, defining ‘* ven-

eral’? as an pee.

If the distinction between “ general’’ and ‘‘universal’’ be

good in connection with the term ‘‘general welfare,’’ pos-

_ sibly ‘the general welfare is less than the welfare of all the

' —. members of a community; possibly“such welfare is but that

'. of many or thie greatest number—merely a welfare éxtensive

or widespread. i

In a sense; however, general (public, common) welfare is

-in-any view of the matter the welfare of all.. That which ~

is directly for the welfare of many may bring welfare in-

directly to all others, so that, in the ultimate, the welfare of

_ all is promoted. Individuals and classes find their greatest

ultimate welfare i in the welfare of all.

‘* Judge Dillon, i in his work on —- Corpora-

tions, (volume 1, p.-212), says * * * ‘If one suffers

- injury, -it is eithgr damnum absque injurta, or in the °

theory of the law, he is compensated fof it by sharing

in the general benefits which the reguiations are in-

tended and calculated to’ secure’.’’.

ox of Carthage v. Frederick’ (1890), 122 N. ‘Y.--

268, 25 N. E. 480, 481.

And see e Chicago, Burlington & Quincy Ry. Co. v. People

(1906), 200 U. S. 561, 593, 26 S. Ct. 341,56 L. Ed. 596.

So, even if the recipients of the dived benefit of an act be

_a class, if the object of the act is to benefit, not the class,-but

—_ sa

the public at baie (individuals and dita generally), the

object is general welfare. If an act confers a direct benefit

upon debtors as a class or upon a certain class of debtors,

not for the sake of the debtors but for the sake of the public,

the act is dn act to promote the general welfare. There isa

decided difference between legisl@ion which has for its

sole object the benefit of a class and legislation which bene-

fits a class with a view to achieving the ultimate benefit of

the public—between class benefit as an end in itself and

class benefit as a means to a public end.

B. The supreme aim of the federal constitution is the

general welfare of the.people of the United States.

It would seem that any politival aet, from the ordination

of a constitution down to the enactment of a municipal

ordinance, should have as its object the welfare of the com-

munity to be affected by it—the general welfare of the na-

_ tion, the general welfare of a State of the United States, the |

general welfare of county or township, city or village.

That.the general welfare of the people of the United States

- is the object of the Constitution of the United States is at- _

tested by the constitution itself. The preamble to the con-

stitution is as follows: ‘‘We the people of the United States,

‘in order to form a more perfect Union, establish Justice,

insure domestic tranquility, provide for the common defense, |

promote the general Welfare, and secure the Blessings of .

Liberty to ourselves and ovr Posterity, do ordain and estab-

lish this Constitution for the United States of America.”’

Promotion of the general welfare is the most general pur--

pose stated in thé preamble. Indeed, the purpose is so gen-

eral that all the other.purposes stated in the preamble can

be placed under the one head, promotion of the general wel- |

_ fare. It is easy to see that the preamble would contain no

more than it does, in substance and effect, if it were simply

~ this: “We the people of the eas States, in order to pro-

— 28 —

mote the general welfare, do ordain and establish this Con-

stitution for the United States of America.’’

. The inciusion, in the preamble, of a general welfare clause,

indicates that by and under the constitution the general

welfare is to be promoted, not only in the several certain

ways (instance establishirig justice and insuring domestic.

tranquility) mentioned in the preamble, but i in. other ways ©

as well. pees

It stands to reason that the general welfare is the primary

“ object of the constitution,. because the general welfare is

the primary object of all positive law. It is simply a matter

of public policy that we have law. at all, and what reason

. Of public policy there could be, for our having law, unless

the reason be that the public welfare ;can be promoted

through law, it is impossible to perceivé.

Even the sunalind ‘‘private acts’’ of legislatures are not

‘without a measure of public importance, not without a rela-

tion, however tenuous and remote, to the general welfare.

Were it not so, what pessible excuse could there be for them,

in a country whose government is supposed to proceed, in

fact as well as theory, from. the people, and to be for the

people. |

» The difference between a private act saik a public act, in’

point of service to the general welfare, is one of degree, as is

likwise the difference between one public act and another,

and if a given public act be specifically denominated an act

‘for the public’ welfare, such act is so denominated merely

because it is more obviously and immediately in the inter-

est of that welfare than are most other public acts. |

Even when on its face an act is in aid of an individual

only, and is actually denominated a private act, it has—in

order to be justified it must have—some certain, even though .

relatively remote, public significance. Where, in point of

public significance, is the dividing line between an act for

: —39— ns

the relief of John Doe and.an act' for the relief of a great

mass of people? Perhaps no one can trace the line with

precision. However, it suffices, for practical purposes, that

- we can sense the difference betereen the private and the pub- --

lic act. The latter is certainly more for the public welfare

than is the former. And just as there is a difference of de-

gree between the private and the public act, so there is a

_ difference of degree between one public act and another, in |

point of the promotion of the public welfare.

In the prevailing opinion in Pennsylvania Coal Co.

Mahon, 260 U.S. 393, 413, 43 S. Ct. 158, 67 L. Ed. 322, we

.find the following passage:

This is the case of a single private house. No doubt

there is a public interest even in this, as there is in‘every '

purchase and sale and in all that happens within the

' commonwealth. Some existing rights may be modified

even in such a case. Rideout: v. Knox, 148 Mass; 368.

But usually in ordinary affairs the public interest does

not warrant much of this kind of interference. A source

of damage to such a house i is not a public nuisance even

if similar damage is inflicted on others in ~ifferent

_ places. The damage is not-common.or public. Wesson |

v.,Washburn Iron Co., 13 Allen, 95, 103.”? ze

That “usually i in ovilinary affairs the public interest does

not warrant much of this kind of interference’’ can never. be

gainsaid. In.Pennsylvania Coal Co. v. Mahon, the court

divided over whether considerations of general welfare war-

ranted the statute mvolved in that case.. The majority of

the court did not think so; Mr. Justice: Brandeis did. He

thought the ‘statute necessary to protect the public from .

- detriment and danger—that is to say, to promote the gen-

eral welfare. In view of the public detriment and danger

_ involved 1 in the present real estate mortgage situation, the

statute under consideration in tlre case at bar is not the out-

growth ‘of any: of those ‘‘ordinary affairs’? alluded to in ~

—30—

‘Pennsylvania. Coal Co. v. Mahon. It is the outgrowth of

affairs: warranting some of ‘‘this kind of interference.’’ It

is not to be.numbered among ordinary public acts. It is

in such degree in the interest of public welfare that, aithough

all laws are in theory for that welfare, this particular

- statute should be specifically denominated a public-welfare

. statute. It is not only in theory for ” public welfare, but °

is especially so in fact. ,

’ The preamble plays no part in the construction of the.

framework -of the federal government, nor does the pre-

amble play any part—at least, it plays no direct part—in

endowing any branch of the federal government with any

of the powers possessed by that particular branch. How-

“ever, the preamble ean not be taken as an indulgence in

beautiful but idle phraseology. It points to the purpose and

object, basie and supreme, of the federal organic law—the .

general welfare of the people of the United States. Of this:

people the people of every State are a part; this welfare

the welfare of the people of every State affects. And a con-

stitution, as said in Commonwealth v. City of Newport

News (Va., 1932), 164 S. E. 689, 696, must be construed

‘‘in the light of the purposes for which it was ordained ’”—

the general, public, or common welfare. .

“Cc. When by a legislative act which contravenes the let-

* . ter of a constitution the general welfare can be better pro-

moted than by a strict observance of: that letter, the act must

prevail, else the constitution is a self-defeating instrument,

and the organic law fails of the supreme object for which i it

was ordained. .

To concede that the statute impairs the obligation of con-

tracts would not be to concede thatit violates Section 10

of Article T of thé Constitution of the United States: ‘‘N 0

state shall * * * pass any * * * law impairing the obligation

of contracts * * * .”’ es

To concede that the statute ealls for any procedure such as:

does not constitute due process of law, would not be to con--.

. cede that it violates Section I of the Fourteenth Amend-

ment to the Constitution of the United States: ‘‘* * * nor

shall any State deprive any person = edi, property, with-

out due process of law * * *.’’

To concede that the statute withholds from any one the

equal protection of the laws would not be to,coneede that it

violates Section 1 of the Fourteenth Amendment to the Con-

stitution of the United States: ‘‘nor-shall any State ** *

deny. to any person: within its praioe the equal protec-

tion of the laws.”

It is erroneous to assume that any legislative act which

impairs the obligation of contracts or trenches upon due

a of class legislation is a violation of. the

organic law. Whether such act is violative of ‘one or more

of the clauses above quoted depends, fundamentally, upon

how the clauses are to be regarded and applied. Shall they

be interpreted strictly—interpreted according to their very

-Jetter? Or shall they be construed liberally—construed in

the light of the needs of society and the general purpose and

object of a constitution? Shall they be strictly applied,

without regard to whether adherence to their letter helps or

hinders. general welfare? Or liberally, with an eye to pro- -

moting that welfare?

‘Tf all the clauses of a constitution are always to be taken

literally and applied strictly, no legislative act which is in

literal conflict with any of them can by any ‘possibility be |

constitutional. If, however, the clauses receive liberal con-

struction and application, the question whether a given —

legislative act contravenes one or more of. them must de-

_ pend upon.the degree to which the act will serve the purpose

and object of the constitution. ‘Ifthe clause is to be con-

strued according to the spirit of the constitution as a whole,

“

_—

‘and so applied as always to further, never defeat, the basic

nigel ultimiate object of the organic law, certain legislative

vets may impair the obligation of contracts or deprive ‘a

person of property without due process of law-or deny to one

the equal protection of the laws, and yet not contravene the -

constitution. Ln other words, some impairments of the obli-

zation of contracts may be. constitutional, others not. And’

sous to denials of due process or w ithholdings of equal pro-

foe tion, . E Ps

I this brief sueh expressions as ‘repugnant to,’? ‘ vio-

lative of" ‘tin violation of,’* ‘Sin contravention to,’’ “ vio-

lates)’ ‘Seontravenes,’’ and all similar expressions, with

/ reference to the relation between. a legislative act and the’

organie law or any particular provision thereof connotes

more.than a mere literal conflict between them, and it is

respectfully submitted that often in judicial opinions and

the statements of textw riters such expressions are intended

and should be taken fo mean a conflict between the legisla-

tive act and the spirit and fundamental purpose of the con-

“stitution or some one?or more. of its clauses.

Whenever any clause of the constitution, taken literally,

stands in the way of the general welfare, the general welfare

must be deemed above, and constitutionally above, the letter

of the clause.

“A recent writer upon the Limitations of Police

Power says that ‘where tlie-letter of the constitution. -

would prohibit police regulations, which; by all. the prin-

cipals of constitutional government, have been recog-

nized as beneficent and permissible 1 restrictions upon the

individual liberty of action, such regulations will be

upheld by the courts, on the ground that the framers of

the constitution could not possibly have intended to de-

prive the government-of so salutary.a power; and hence

the spirit of the constitution permits such legislation,

although a strict construction of the letter may pro-

hibit.’ Tid. Lim. 12.”’°

aie —3—

‘ Village of Carthage v. Frederick (1890), 122 N. Y.

268, 25 N. 16, 480, 481. " a

It may be said with regard to the contract clause, the due

| process clause and the equal protection clause, as is said,

with regard to a certain clause in-Packet Co. v. Keokuk

(1877), 95 U.S. 80, 87, 24 L.. Wd. 377: ‘A mere adherence

to the letter, without reference to the spirit and purpose,

may in this ease mislead, as it has gnislead in other cases.’’

ID. | The police power, like the constitution, has for its

object the promotion of general welfare.” ~~ @

“Tt may be said in a general way that the police power

extends to all the great public needs. Canfield v. United.

States, 167-U. 8. 518. It may be put forth in aid of |.

- what is sanctioned by usage, or held by the. prevailing

morality and preponderant opinion to be greatly and .-

immediately necessary to the public welfare.”

"Noble State Bank v2 Haskell (1910), 219 U. S. 104,

‘ 141, 31S. Ct. 186; 55 L. Ed. 112, 82 L. R.A. N.S.

1062, Ann. Cas, 1912. A, 487, regcrs

,. Mverything that has ever been stated as a proper object

of the exercise of tle power.can be ranged under the head

of general welfare. The public peace, the public arder, the.

_ publie safety, the public health, the public morals, to men-_

tion only.a few but perhaps the most usual objects of the ex-

~~ ercise of the power—these all range under the head of gen-

eral welfare. They range uhder it as certainly as, from the

* national point of view, do the formation of a more perfect

union; the establishment of justice, the insurance of domes-

tie tranquility, the provision for the common (general, pub- |

lic) defense, and the securing, to ourselves and ou terity,

of the-blessings of liberty. Indeed, the object f\any law,

organic or nonorganic, state or federal, must be something .

that ranges under the general-welfare head.

A + eR a ot ae Se emmerererenrnmreat as

en) yen ee as

—~%—

The term ‘‘general welfare” or its equivalent occurs in

numerous definitions and characterizations of the police

: power, and in such manner as to make clear that the promo-

tion of that welfare is the essential office of the pow, and

the foundation of every. exercise thereof. Ss

12C. J. Constitutional Law, sec. 430. ie

And see:

— Board of Public Works , o>), 195 Cal. 471, \

ac. 381, 383, 38 A. L. R. 1479;

- Pedtis v. Alpha Alpha Chapter (1927), 115 Neb. 525,

* 213 N. W. 835, 838;

State v. Bassett (1924), 100 Conn. 430, 123-Atl. 842,

37 A. L. R. 131 (United States Supreme Court

cases cited). .

And the following recent cases :

_ Graham v. Kingwell (Cal.), 24 Pac. (2a) 4 488; |

People v. Coulides, 265 N. Y. Supp>765, citing Baker.

v. Walker, 204 U. 8. 311, 27 iy Ct. 289, ‘ST L. Ed.

499.

The police power has even. been said to be “the law: of

overruling necessity, for the cuca of the wr

welfare.’’

Cook County v. Chicens (1924), 311 Nl. 324, 142 N. B.

512, 516, 31 A. L. R. 442. :

E. If the object of all law, organic or nonorganic, and

the object of the police power, as exercised in the making of

* law, be upon. ultimate analysis the general welfare, where

within the bounds of law—where within the scdpe of ae .

welfare—lie the boundaries of the police power?

If the police power_ could -be defined with precision, the

question could be readily answered. Definitions aes to

} boundaries, boundaries point to definitions.

- The difficulty of defining the police power or perceiving

its boundaries has been frequently recognized. —

6 R. C..L., Constitutional Law, sec. 183.

a“

It is respectfully submitted that much of the difficulty” =

in defining the police power lies in. the. fact that “‘nolice |

power,’? like many other terms, has different itieiel in

different connections. : nae . ;

- In its broadest sense the term r means, perhaps, sovereign

| power itself, the source of all: positive adie —— the

organic.

6R. C.L., Constitutions Law, sec. 184;

. 2 oe Constitutional Law, sec. 415; . |

Citizens’ Ins. Co. v. Hebert (1916), 139 ‘La. 708, 717,

71 So. 955, 958.

_ In a narrower sense, the police power seems to be the

power to meet the great public needs, whether such needs as

have been immemorially regarded as great (instance th

relative to such matters as public health and public mora 5)

or yet others, net immemorially regarded as great, but by.

_ times and conditions, according to the.preponderant ‘opin- —

ion of what.is required and the prevailing opinion of what

is right, raised to the rank of those things ‘‘oreatly and

immediately necessary to the public good.’’. ‘See Noble:

State Bank v. Haskell, supra (219 U. 8. 104, 111). In the.

narrower sense, police power is but sovereign power in a

certain one of its aspects. We have already had occasi

. (see I B, this Argument) to point out that private acts dif-

fer from public acts in’ ‘degree only, in point of serving the

public welfare, and that public acts differ from one another

- in the same manner. Some serve that welfare in: much

greater degree than do others. . .

If certain characterizations of the police power dofnot

serve to make it synonymous with sovereign power, théy at

_ least go to the verge of doing so, and make out that the er-

cise of the police power is 4 manifestation, at any rate, of -

sovereign power. Thus, in Chicago, Burlington & Quincy

sind Co. v. People (1905), 200 U. S. 561, 588, 26 S. Ct. 341, 56

+ 36

| ; L. Hd. 596, we.read that the police power is“‘ineident, to and.

apart of government itself.’? In Miller v. Board of Public

|. Works (1925), 195, Cal. 47% 234 Pac. 381, 3 A. L. R. 4479, we

read that the police power is ‘‘an indispensable prerogative

ee f soverguenty, and not lightly to be limited.’’. ‘The police

astate *'* * ‘are nothing more or less than the

ent inherent i in every sovereignty to the

‘extent of its dominions.” McKeon v. Railway Co. (1902),

, 75 Conn..347, 53 Atl. 656, 657, 61: L.-R. A. 730, quoting from

The License Cases, 5 How. (46 U.S. ) 504, 583, 12 L. ‘Ed. 256.

pam wed orc LB a er

State v. Bassett: (1924), 100 iGint. 430, 123 Atl. 842,

* 843,37 A. L. R. 13h ;

. City of Chicago v. yee Home —. 289

“Ti. 206, 124 N. E. 416, 419. ;

_—

Regarded as a power exercised for the gtent anil of gen--—

‘gapudies, the police power is hevertheless, of course, a

‘parts of sovereign power. Ita ds‘merely a nfatter of termi- —

nology, whether we shall give the name ‘‘police power’’ to

" sovereign power as a whole or to sovereign power as we see

it manifest itself or capable of manifesting’ itself under cer-

tain circumstance’ _and to certain ends. In strictness, the

pelice power is no e to be separated from the one-and |

only supreme Eek sia in a state than reason, will or

emotion is to be separated from mind and made a mind unto

- itself. - ‘‘ Police power,”’ then, in the narrow sense of the

term (that is to say, the sense in which we usually employ

the term) is a nante for sovereign power as it may or actu- .

ally does manifest itself-iny behalf of great public needs; it

“Is sovereign power. ina certain aspect of that power—sov- .

.ereign power as capable. of acting or as act@ally acting for

“certain highly important objeets of general welfare.

It might seem as if, in a yet narrower sense, the police.

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power is the specific power to override, in certain instances,

the letter of the constitution, fn’ pursuit of the welfare of the * °

ations ‘Perhaps this is the sense-t TH which it is spoken of

‘as a ‘‘reserve element of sovereignty. ’? See Des Moines.v.

Manhattan Ou Co., 193 Iowa 1096, 184 N. W. 823, 23 A. L, Rg

power of contrayéning is letter ‘of ‘the organic slew, but a

power which onoccasion manifests itself in that aise -

way. Weare easily tempted ‘to define the power in théght

of the fact that it may override the letter of the constitution.

Seldom, except when the exércise of the power is contrary

to that letter, do we bother to name the power or pause to

- consider whether it is exercised vonstititionally.- Usually, :

if the use of ‘the ‘power “does not contravene the letter of

the organic law, an exercise of the power. elicits no particu-

lar attention; no one troubles to’ classify the power; no one ~

trouble#to give it a name.

When a statute -is “enacted to accomplish something

“greatly and immediately necessary to the public good,”’’

-and the statute. runs counter to. the phraseology of a pro- -

vision of the constitution, is the statute repugnant to the. «

constitution because repugnant to its letter? The answer

_ 1s, the statute’must be repugnant to the spirit. as well as to

the letter of the provision in order: to be repugnant to the |

coustitution. If, in a given situation, a statute which is .

necessary to the welfare of all is in literal conflict with a

given clause of the constitution, the statute is ‘not, in spirit

‘and reality, repugnant to the organic law, and thereforé ui-

constitutional, but i in line with that law because i in line with ©

— its ultimate purpose, and therefore constitutional.. This

“view shows the true significance ‘of ‘‘repugnant”? in. the~

description of the police power as ‘‘the power vested ‘in the

legislature by the constitution to make, ordain and estab-’

. lish all manner of wholesome and reasonable laws, statutes | |

“4

_ ° . , Z

sii alee Pe ee ‘a | ep

- . " *

;

*, wei <n

and ordinances, either with penalties or without, gnot. re- ae

pugnant to the tare of the Con shall judge. to be for

the good and welfare of the

jects of the Same.”

onwealth, and of the sub-

Shaw, C. J.,.i6fCommonwealth v. Ae (1801), i

. Cush (61 Mass.) 53, 85.

It is: submattted that in certain definitions and character-

izations of the police power, statements that it must be exer-

cised subject to the constitution, or in a manner not repug- |

nant to, or violative of, the constitution, have reference to

_ the spirit and intent of the provisions of the organic law,

rather than to ‘their letter.” Certainlyif to. suppress a public ,

nuisance it is necessary to impair -the obligation .of con-

tracts, deprive of due process, or deny equal protection, the

_ litter of the constitution i is infringed. Whoever. maintains

‘that the letter * can be infringed-in the interests of general

welfare in the case of.a public nuisance, will find himself in

a dilemma if he tries to. explain why the general welfare and.

not the letter of the constitution is not always the test of’

- whether the police power is constitutionally exercised. To

find a statute unconstitutional, we have to find; first, ‘that it

violates the letter of the organic law, and, second, that: ad-

herence to that letter is more for the general. ‘onmania than

is the statute. eae

A term which in: one sense ‘bite the whole and i in an-'

other a part and perhaps in yet another a part of.the part;

is doomed to inadequacy and uncertainty of definition. But

it is respectfully submitted that some such definition as the

following points to the basis, nature and scope of the power:

It is the sovereign power acting or seén in point of its capac-

__ity to act to terminate any existent or obviate any threat-

ened detriment or danger to the-general welfare of the com-

‘ munity, whether such sovereign power be inherent in or

By a

—

39 $

delegated to the people of that octittoaniity, and/ whether or

not in the exercise of that power, when to uge it is greatly

and immediately riscessary to the public good, it contra- .

venes the letter of the’ organic law. |

| Thus it is that the seicate aed is — s natural right :

of self-defense.’ a

McGuire v. Chicago, Pea & olin Rd. Co.

Ute), 4 towa 840, 354, 108 N. W. 902; 907...

* f

And see: =

12C. J,, Constitutional Law, sec. 415, and f. n. 12;

Bares 0, Richafd (1910), 76 Neb. 769, 124 N. W. 153,

. 155-6: :

Pettis v. hiphd Pagers —— (1927), 115 Neb. 505,

213 N. ‘W. 835, 838.

FB What we may tin: a ‘helen of-welfare theory of the

relation between the police power and the letter of the con-

_ stitution is: evidently ix process of evolution. +

Since the organic law and the police j power have as a com-

_ mon object, the promotion of the genera} welfare, they must —

and do work hand in hand. The constitution cannot stand:

. in the way of the fulfillment of. the common object by the

police power, any more than the police power can stand in

~~ the way of the fulfillment of that objéct by the constitution.

. Kither the pétice power or the constitution, in preventing

the fulfillment of the common object, vould, needless to say,

defeat the fulfillment of its own.

The boundaries of the police .power.are being erudite

ascertained through the process of exclusion ané inclusion.

6 R. C. L., Constitutional Law, sec. 185.

SG ‘With regard to the police poy er, as elsewhere in.

the law, lines are pricked out by the general approach

and contact of decisions onthe opposing sides. ”’

. Noble State Bank v. oy i 219-U. et |

TEOMA ENS DLE STEIGER, ERLE IR teal Aan f ORS

Bove

c. 2 eetdloen

It is submitted that the decisions substantiate the follow-

7 ing observ ations concerning the line between’ the constitu- —

tiqnal and the unconstitutional exercise of the police power:

: 1. On‘one side of the line range those exercises of the police .

power which either do not contravene the letter. of the con- *

stitution or, being contrary to the letter, tend more to pro-

“= mote the genqral welfare-and fulfill the spirit of the con-

stitution than would strict adherence to its letter. 2. On the

. other ‘side of the line range such exercises of the police .

power as not only are contrary to the letter,of the constitu-

tion but tend less than would adherenée to ite letter to ruc

its spirit and promote the common weal. ~~.

- ° If the fogegoing observations are corrett, there, is truth

in what we may term a balance-of-welfare doctrine with re- |

spect to the qflestion whether the police power or the letter’ -

- of the constitution shall prevail in any given’ situation in

which, on the one hand, it is assumed: to assert the- police

power, and, on the’ other, to challenge the exercise of the .

power on the ¢ ~ound that such. exercise contravenes some

‘one or more of the prohibitions ef the organic law.. ‘Thus

the true constitutional limitation | on the exercise of the police.

power is at the line at hich the exercise of the power be-

_ comes less promofive’ of the general,welfare than is a strict

—_-—

adherence to the letter. of the organic hy -—_——_———

_— =A the object of organic law be the general wiles, and

the general welfare be likewise the object of the police power,

the point whether adherence to or departure from the let-

ter of the constitution is the more for the public welfara, |

- must be the fulcrum on which pivot the'scgles in' which leg-

islative bodies must-weigh their duties to the people, and in —

-_ which courts must weigh the power of: legislatures. Legis-——

"dation is unconstitntional--only- whens. in those seales, it —

~~ weighs less than the letter of the constitution. _

| as has -been judicially recogined that if sancuatiain is in

———

—41— | Aa | .

‘conflict with the letter of the constitution, the cethetionis by .

_ which the constitutionality or unconstitutionality of the leg- .

_ islation shall be adjuaged involve the ss to which it pro-

motes the general welfare.

Pennsylvania Coal Co, v. Mahon, Supra, (260'U. S. 393,

i > ee

@. A state may balsizios its police power against the letter

of the federa] constitution.

The truth of the statement is so-implicit in so many of the

_ decisions, state and\federal, cited in this brief, that it seems _

‘ almost superfluous to fortify the proposition with particular

& statements and citations.

The contract clause of the federal constitution does not

‘ibhibit a state from i impairing: the obligation of contracts .

‘when exercising its police power with a view to esteemed a:

i in and immediate good.

‘See Burdick, The Law‘of the. American Constitution,

secs. 196 and 197.

N or does ‘the Fourteenth Amendment place a wiiteltoa.

upon the subjects over which a:state may exercise the power. >“

“See 2. Cooley; Constitutional. Limitations as ed. My |

1234, f. n._- a ene sgt

‘Police power belongs inherently to ent of the states. |

12 C. J., Constitutional Law, sec.. 417:

\2 Cooley, Constitutional | Limitations (8th ed.), p

1232.

Except posstity within a ‘field which the hitogile: of the ”

_ United States, as distinguished from ‘the people of one of

_the-stater-mlay oocu occupy exclusively, the federal constitution .

has not deprived the states of their police power.

—_— v. Maryland (1827), 12 Wheat. (25 U.S.) 419,

;

AE PUL OE ener

a. ee: :

, Boston Beer Co. v . Massachusetts stn, 97 U.S.

° 25, 33, 24. L. Ed. 989;

Reeves v. “Corning (1892), 51 Fed. 774, 785; |

State v. Schlenker (1900), 112 Iowa 642, bot. 649, 84 |

nae ath 698," 699, 51 L. R. A: 347, 84 Am. St. Rep..

ene ~ State w Fitepatrick. (1888), 16 R. I. 54, 11 Atl» 767, .

City of Rochester v West (1898), 29 App. Div. 125,

| 51 N. Y. Supp. 482, 484;

City of Westport. v. Mulholland (1900), 159 Mo. 86,

a OR. W. 1, 8, SSL. BR. B.408. .

_ HL Whether given jogiilativin promotes the intwed wel-_ ee

fare at all, nud if so, the degree to which the legislation ] pro- .

motes the. general welfare, may depend upon times and con-

ditions.

As has in effect hetii pointed out, such matters as the pub-

__lie peace, order, safety, health and morals .are ‘at all times

_ to be. weighed against the letter of the constitution. Even —

- with respect to these matters, undoubtedly certain measures _

which at, certain times and undér certain conditions are not:

justified by considerations | of general welfare and-are uli-

constitutional, may so far promote. that: welfare at certain .

-other. times. and under certain. other conditions as to be con-

‘stitutional. The statute now under consideration is not un-

‘+ connected with’ certain of these matters, in. partjcular peace :

: and order, because of conditions now obtaining. j

- Such economic measures as the letter of the soantibaite, |

wlll kill ‘at one time may. at another time kill the. letter .

. _ of the constitution. -

_ No one will. dispute that at most times vad iid most

. conditions most measures in contravention of the letter of

' the contract. clause, the due process clause or the equal: pro-—

tection clause are as contrary to the spirit of the constitu-

- tion as to its letter. But conditions may so change, éven

over night, 2 as to present an occasion on which measures de-

—_ fen

| signed to serve the general welfare fn the particular instance

may serve it so well as to outweigh.all other considerations,- we

_ and thus a measure that would have been contrary to the’

public intergst yesterday may today be imbued -with‘a public ”

interest of the most vital sort. Such a measure is the.statute |

. eonsidered in-the case at bar. ee

ee ee as oO. a ‘ : 2 net

‘‘Plainly cireumstances may so change in time or so

differ in-space as to clothe with such an interest what at

other times. or in other places would be a matter of

__.——~ ‘purely private concern. -It is: enough to refer to the

decisions as to insurance, in German Alliance Insurance.

Co. v. Lewis, 233 U. S. 389; irrigation, in Clark v. Nash,

198 U.'S. 361; and mining, in Strickley.v. Highland Boy

Gold Mining Co., 200 U.S. 527. The sufficiently illus-

trate‘what hardly would be denied. Th

‘that the use by the public generally of each specific

thing affected cannot be made the test of public interest, -

.. Mt. Vernon-Woodberry Cotton Duck Co. v. Alabama:

° Interstate Power Co., 240 U. S..30, 32;,'and that the pub-

- lig interest may extend io the use ‘of land. They dispel

the notion that what in its immediate aspect may be only

a private transaction may not be raised by its class or

character to a public affair. See.also Noble State Banh

- Haskell, 219 U.S. 104,110,111. é

es ~

Block v. Hirsch (1921), 256 U. 8. 135, 155, 41 8."Ct.

7 * . >" 458, 65 L:-Bad, 865,i6A.LB165.°-

_ A matter which in general is private may ina particdlar —

_ situation become public.

Edgar A. Levy Leasing Co. v. Siegel (1923), 258 U.S.

242, 246, 42 S. Ct. 289, 66 L. Bd. 595.

- +: “*The police power of the state, never having been

exactly defined or circumscribed by fixed limits, is con-

‘sidered:as being capable of development and modifica-

. _ tion within certain limits, so that the powers of govern.

‘Mental control may be adequate to meet changing social,

economic, and political conditions. It is very broad and

comprehensive, and is liberally understood and applied.

Pia OKAY EN ¥ PN al aoe

ey illustrate also .

. a

‘

| ~~ The changing conditions of society may make it impera-

_ tive for the state to exercise additional powers, and the

- Welfare of society may’ demand that the state should

. assume such power.’’

’6R. C, L., Constitutional Law, sec. es, citing ample °

authority. Pa ae Se oP esac st

* .*. *>- The instrument was not intended to pro- |

vide merely for the exigencies of a few years, but: was _

to endure through a long lapse of ages; the events of

which were locked up in the inscrutable. purposes of - ,

' Providence... It could not be foreseen-what new changes

and modifications of: power might be indispensable to

effectuate the general objects of. the charter, and re-

- strictions and specifications which at tlie present might

seem salutary might in the end prove the overthrow of

the system itself. Hence its powers are expressed in ..

general terms, leaving to the legislature from time to

time to adopt its-own means to effectuate legitimate

_ objects and to mold and model the exercise of its pow-

ers as its own wisdom and the public intérest should

___ See pts er ta , :

_ “*The police power, as such, is not confined within

44% *

__ the narrow circumscription of precedents, resting upon .

_ past conditions which do not cover and control présent-

day conditions obviously calling for revised regulations ©

‘to promote the health, safety, morals, or general welfare -

of the public; that is to say, as‘a commonwealth devel-

ops politicafly, economically. and socially, ‘the, police

power likewise develops, within reason, to meet the

changed and changing conditions. “What was at one-

time regarded as an improper exercise of the police

bgp may now, because of changed et

recognized as a legitimate exercise of that power.”’

, ' > hm '

Miller v. Board of Public Works (1925), 195 Cal. 477,.

+ 234 Pac, 381, 383, 38 A. L.R.1479; -.

Pettis vy. Alpha Alpha Chapter (1927), 115 Neb. 545,

213 N. W. 835, 838. aire Vue ier

And seé'City of Aurora v. Burns, 319 Ill. 84, 149 N. E.

784, 788 Serge pawn

— 45 — t

~ ‘*What was a reasonable-exercise in-the days of our

fathers may toduy.seem so-utterly unreasonable as: to

make it difficult for ns to comprehend the existence of

ae conditions that would justify same; what would ir

- fathers have been #ejected as unthinkable is today ac-

_ -eepted-as\a most:proper and reasonable exercise there-.

of.’ e. \,.,

a " Streich v. Board of Education (1914), 34 S: D. 169, at a

.147.N. W. 779, 781, Ann. Cas. 1917-A, 760;

_ |... Miller v. Board of Public Works (1925), 195 Cal. 477,

°°". 1934 Pao, 381, 383, 28 A.L.B.1479."

2°

least limitable of the powers of government and ‘that it

extends to all the great public needs; that constitutional

law is a progressive science; that’ statutes aiming to

establish a standard of social justice, to conform the

law to the accepted standards. of the community, to

ing living standards ofMprice for the producer, are to

be interpreted with that degree of. liberality which is

essential -to the attainment of the.end in view (Austin

stimulate the roductiggpot a vital food product by fix-

_. by an earlier generation temerarious interference. * '

“’ with the rights of property and contract * * *. But

we must-nat fail to consider that the police power is.the. .

v. City of New-York, supra, page 117 of 258 N. Y.,179 » .

N: E. 313); and that mere novelty is no objection to

in legislation (People exrel. Durham Realty Corp. v. La

' Petra, 230 N. Y. 429, 130 N. EQget' 16 A. L. R. ¢152).””

| People v Nebbia (1933); 262 N. Y. 259, 186 N. E. 694,

ie 3 . , .. n . ° . ° *% 4 ¥ ° > °

_ I. An economic depression, as ‘well as a war, may consti-

tute or comprise an emergency such as warrants ah unusual -

exercise of the police power. In‘ne case so far decided’ has .

it been said that'war provides the sole oceasion for such leg-

islative overriding of the letter of the constitution as would

not be periissible in ordinary times and under normal cir- -

cumstances. On the contrary, the same reasoning that jus- —

a ad

oW a |

6 ee

: te

- tifies certain legislation i in ‘onnthin, arid sera or ha

the constitution certain exercises of the police powef inwar-

‘time emergency, justifies’ ‘certain. legislation in peacetime, | ;

° and harmonizes with the constitution certain exercises ae

. the police power in peacetime emergency. In peacetime as

in wartime, the point on which turns thé conflict between the

police power and the letter-of the organic law, is the matter

of general welfare. No better-evidence of this exists than

the fact that public péace, order, safety, health and morals

can always be furthered at thé expense of the letter of the

constitution, But certain other things can be furthered at

_that expense only when an emergency of some sort raises

them, for the time being, to the plane that matters of public oa

peace, order, safety, health and morals occupy. in peace or

war, ‘and i in times of economic weniewunin as well as in times

_ of prosperity.

Various definitions of the sililees power embrace such terms

as ‘‘ ‘prosperity,’ ‘economic welfare,’’ ‘‘economic concern,’ ”

etc., ete thus evincing that the police power may be used |

- to further the general welfare along economic lines, and in-

dicating, also, that an economic eme rgency may be a proper

occasion for exercising the power in ways in which it might

_not, ordinarily, be constitutionally exercised. And see:

Bankers’ Trust Co. v. Russell (Mich.), 249 N. W. 27, a

-29 (United States Supreme Court decisions cited).

We have already pointed out that numerous definitions

of the police power embrace the term ‘‘general welfare’’:

(I D, this Argument) and that general welfare, according

to judicial definitions thereof, embraces the primary social

interest of economic welfare (I A, this —* seed

cases here again cited).

. State v. Hutchinson Ice Cream Co. (1914), 168 _—

= 1, 10,147 N. W. 195, 199, L. R. A. 1917 B, 19185.

—47 — oL,

| Pettis v. “Alpha Alpha Chapter (1927), 115 5 Neb. 525, :

212 N. W W. 835, 838. | ss |

It has not bla been said by oe one.of the purposes -

of the police power.is, ‘‘to insure in any respect such €c0-—

nomic conditions as an advancing civilization of a highly

complex charactér requires. ’’

Stetter v. O’Hare (1914), 69 Orl. 519, 531, 139 —

' 743, 747, Ann. Cas. 1916 A, 217, 299. =

Ex parte Townsend (1911), 64 Tex. Cr. 350, 1448. W.

- 628, 631, 33 Amn. Cas. 19140, 814,-817; a

. * State v. ’Mamlock (1910), 58 Wash. 631, 633, 109 Pace. iP

i" .- 47,.137°Am. St. Rep. 1085;

| Morrison v. State (1906), 116 Tenn. 534, 543, 95 - Ww.

- 494, 496.

- power that may be exercised to promote reer es may

‘certainly be exercised to deal with depression. . Therefore it

is important to note that not infrequently the promotion of

public poegeny has been said to be a function of the power.

_ ‘*We hold that the police power r of | a ‘State embraces |

regulations designed to promote the public convenience

or the general prosperity, as well as regulations de-

signed to promote the public health, the public morals -

or the public safety. Lake Shore & Mich. South. Ry. -

Co. v. Ohio, 173 U.S. 285, 292; Gilman v. Philadelphia, :

_ 3 Wall 713, 729: Pound v. Turck, 95. U.S. 459, 464; Rail-

road Co. v. Haven, 95 U.S. 470. »

Chica. Burlington & Quincy Ry. Co. v. People,

supra (200 U. S. 561, 592).

It is a power under which ‘‘persons and property are

subjected to all kinds of restraints and burdens, in order

to secure the general comfort, ‘health, and prosperity

of the State; of the perfect right i in the legislature to

do which, no “question ever was, Or, upon. acknowledged ©

general principles, ever can be made, all vila .

; —48—

Thorpe v. Rutland & Burlington Rd. Co. (1854), 27

: Vt. 140, 149, 62 Am. Dee. 625, 633; *-

- Village of Carthage v. Frederick (1890), 122 N. Y.

268, 25 N. EK. 480, 482. ;

‘“Whatever may be the limits by which the earlier .

decisions circumscribed the (police) power, it has in |

-more recent decisions been defined to include all those .

regulationgylesigned to promote the public convenience,

the geieral welfare, the general prosperity, and extends

to all great public needs, as well as regulations designed

to promote the public health, an public morals or the .

- public safety.’’

State v. Pitney (1914), 79 Wash. 608, 140 Pac. as

919, Ann. Cas. 1916. A, 209. :

“See also:

Noble State Bank -v. Haskell, supra, (219 U. S. 104, ©

. iin

: mes Wigite, 204 U.S. 311, 318, 51 L. Ed. 499, =...

~ §. Ct 3

Barbier v. Connolly (1885), 113 U. S. 27, 31,5 S. Ct.

357, 28 L. Ed. 923;

Women’s Kansas City ’St. Andrew Society v. Kansas

City (1932), 58 ¥ (2d) 593, 599;

City of Des Moines v. Manhattan Oil Co. (1922), 193

: Iowa 1096, bot. 1104, 184 N. W. 823, 23 A. L. R.

1322. ©

‘*Kmergency laws i in time of peace are uncommon but

not, unknown. Wholesale disaster, financial panic, the

aftermath of war (Hamilton v. K entucky Distilleries

W. Co., 251 U.S. 146, 161, 40 S. Ct. 106, 64 L. Ed. 194),

earthquake, pestilence, famine, and fire, a combination

of men 6r the force of circumstances may, as-the alterna-

tive of confusion or chaos, demand the enactment of

- laws that would be thought arbitrary under normal con- -

ditions (Bowditch v. Boston, 101-U. S. 16, 18, 19, 25 L.

Ed. 980; American Land Co. v. Zeiss, 219 U. S. ‘41, 31 -

_ S. Ct. 200, 55 L. Ed. 82).””

-Peopte v. La Fetra (1921), 230 N. y. 429, 130 N. E.

. 601, 606.

— 49 - ahaa

In no well considered modern case is it said, with reference

‘ to public (common, general) welfare, that the police power

. is for exercise with respect to such welfare in.this connec:>

tion but not in that, or that the letter of the constitution must

yield to it in connection with this phase or aspect of such

welfare but not in connection with that.

Although the land involved in the case at bar is not farm

. land, the importance of thé-sfatute to the people of the State .

of Minnesota can not be. fully realized without: bearing in

mind that agriculture is one of the important industries of |

the state and that the prevailing economic distress involves —

a multitude of farm mortgages. —«->-—s//.

It can hardly be maintained that a power whieh j in ordi- -

nary times and circumstances can be exercised in behalf of

the health, morals, peace, order and safety of the people, —

and otherwise for their welfare ‘i in general, can not be ex-

erted by them for their economic welfare in tinies when con-

ditions are such® ‘that they render families homeless, take

. bread from the mouths of children, drive men, women and °

children. into breadlines and i in various ways throw large

numbers of persons upon the bounty of public charity—

times when conditions are-such that they even create ard

fan the very sparks of insurrection itself. ;

The Court of Appeals of the’State of New York, in People —

v. Nebbia (1933), 262 N. Y. 259, 186 N. E. 694, 698, noticed as

a reason justifying a legislative enactment ‘‘scenes of vio-

lence and disorder in the attempt. to organize so-called milk .

, strikes asa protest against the low prices paid for milk.’’

It should hardly be: necessary to argue that in times like

these the power can be used to keep families-in their homes,

fariners on their farms. While farmers keep their land, they

can at least keep themselves usefully employed and keep

themselves and their.families from becoming public charges.

Whether A or B, as an a individual, owns some Particular

‘ ° :

: 5 F 2

. ‘ q

" ‘

: . ‘ . .

Sete = . . : . ‘ on a w -- Pen Neime eRe

— . :

= .

ota

- home or farm, i is wit the nitiint, but what matters is the

detriment and danger to all the citizens of the state through

_ what has happened or may happen to many of its citizens.

«J. -'The statute is not, and does not profess to be,.a cure

for the depression or any phase of the depression, but merely

‘a means of ameliorating, during the economic emergency, a

certain conditidn fraught with public detriment and-danger.

It is to. be noted, too, that the statute is a legislative exer-

cise of a legislative. power, and not in any sense or degree

“an abdication of such power. . 7

K.-: During the past generation, with the concept of the —

.police powers. undergoing clarification, legislatures have

‘more and more weighed ‘this power against. the letter of the

_ organic law. :

It is an irrefutable fact that “during the last generation

- the pendulum has swung.’’ ¢ :

Burdick, The Law of the American Constitution, secs.

196 and 197: ae

_ A detailed history of the swing of ¢he ‘iditien may be

found in 2 Warren, The Supreme ‘Court in United States

History, 735 et seq:, esp. 740-742. oa

"Although the power must always have been as great as it

- now is, the concept of the breadth | of the power has grown’

_as courts and legislatures have come to have a better under-

standing of the relation ‘between the power and the organic —

. Jaw.

The police power can hardly be conceived of as ‘msthing

more potent at one time than at another (see ‘Brown v. Mary-

_ land, 12 Wheat., 25 U. S., 419, 439), but as a power the appli-

cation: of which contracts or enlarges as the necessity for .

“applying it grown or diminishes. " So, in the following --

tation, it would seem, the ‘‘growth of the police power’’

means merely the growth of the necessity for using the

Ya FUCA LE TPR a Pht AE STE eA Tr ea SOE RT rae ene RE nag gee? dete 9 9 Ney a MRSA, am Sees

rs = a iaiededaat tal

a.’

power, and, consequently, of the bounds of the actual exer-

., eige or application of, the power. ap

“*'* * the growth of the police power. must from

‘time ‘to time conform to the growth .of our social, in-

- dustrial ant commeycial life. You cannot put a straight-

jacket on justice alfy- more than you can put a straight- |

jacket on business.’’ .

Leonard v. State (1919), 100 Olio St. 456, 127 N. E.

. 464, 465.

We must without. hesitation or a : Mash of apology dismiss

the view that those who framed our constitution and those

i who voted to adopt it intended jit to be.a reer onetl on -

progress or the. public welfare.

. The tendency of modern development is is in the direc-

tion of greater, rather than more restricted use of pélice

power, and necessarily so in order to-meet the new dap-

gers and increase of old dangers, constantly occurring _

as natural incidents of advancing civilization. en

Chicago, Milwaukee & St. Paul Ry. Co. v. City of

_ « Milwaukee (1897), 97 Wis. 422, 72 N. W. 1118,

ae.

And see: . ater

Cityof Wesi pot-o-Muthalisiad” (1900),.159 Mo. ae

60 S. W. 77, 78, 53 L. B. A. 442,

- Although of late the use of the power has become more

and more frequent and has extended over broader fields than

it teuched in the early days of the republic, it must not be .

‘thought that the power has not always existed, any more

than it must be ‘thought that the power itself has grown.

Although the term ‘“police power’’ found its way into the

decisions in 1827, via Brown v: Maryland, 12 Wheat. (25

U.S.), 419, 443 (see 1 Warren, The Supreme Court i in United

States History, 605, f. 1.2), the use of the power in this coun-

try antedated the use of the term (see Mumn v. Ilinois, 94 U.

S. 113, 125, 24 L. Ed. 77). Not only is it true that the yielding

’

OS LP SRR EL, IIE EDO SEDI OL OG! LCE A ELIE .

; sn

of ‘the letter of the constitution to its spitit is po new thing, |

but it is true, of a necessity, that the existence of the power

aintedated the very organie law with whose letter it some-'

times conflicts. As said in City of Rochester v. West (1898),

51. N.Y. Supp. 482, 484, the power, generally. speaking, ‘may -

be characterized as.a power which.inheres in the state, and

in each political subdivision thereof. * * * It constituted an -

essential feature of some of. the enactments of the, Twelve -

Fables, and it has for ages beon adopted and enforced by

all civilized nations as a cardinal rule of the civil law.’’ The

fact that the relation between the police power and the con-

stitution was not at first thoroughly grasped, ‘and there-

fore not cohsidered in. many cases in which it might have

~ been, is no argument against the existence and the scope of

the power. oe 5 OE ae: a

If the statutes involved ‘ini. certain cases: were the ont- Zz

growths of previous depressions, and were emergeéney acts,

notwithstanding the: fact that’ the decisions in question rv

not allude to those statutes as emergency measures or, dis-

cuss: the relation between the organic law and —

ree two observations are in order:

The force of those decisions ‘as standing for § a narrow

namie of the constitution is weakened by their want

of direct refereitce to! any emergency and their lack of allu-

sion to thé police power. :

- 2. Those decisions must yield to the authority of bober

. Cases, in which emergency statutes are considered as such

and the relation indicated which subsists and must always

have subsisted oe the police power and the constitu-

tion. oo

As to Munn v. Illinois, supra, and saith cases :, + would

stultify the principle enunciated therein to hold ‘that it is

applicable only where the regulation of rates or prices is con-

cerned. The principle is obviously applicable not only.

opr inciple the ise of the police power in a large number

__.-of-cises varying greatly from one. another in their facts.

— ie:

Ww hei rates.or prices are regulated 1 In con, aeetion with a busi- .

‘ ness affected with a public interest, but where for any rea-

son’ anything whatsoever is so far affected with such an’

- interest as to'‘make it reasonably necessary that it be taken

under legislative control. The difference between regulat-

~ Ing the use of property. ‘‘elothed with a public interest”? and

extending for ‘the ‘publie benefit the ‘period in which re. _

. demptien of land may be effected is not a difference in prin-

ciple. “It is not without reason if.in a recent: case, People —

v. Ne bbia, 262.N, Y. 259, 186.N. EB. 694, 698, the Court-of -Ap-

’ peals of the State of New York, citing n us ‘decBions of

the Supreme Court of. "the Unit d States, relates to a single -

-From the time (1820) when Congress empowered. the city of.

' Washington “to regulate * * * the rates of wharfage at pri-

vate wharves, * * * the sweeping of chimneys, and to fix the

rate of fees therefor, * * * and the weight and quality: of

bread,’’ (see Munn v. Illinois, supra, 94 U.S. 113, 125) down

to, through. and past the time (1921) when it was held that

Congress could. regulate the amounts of rents and the tenures _

of lessees in that city (see Block v. Hirsch, supra, 256 U.S.

. 135), the principle has always been applicable, that; given a.

situation in which or occasion on which the public interest

is so great as'to call for legislation contravening the letter &

of the constitution, considerations of general welfare prevail ~

over that letter—the legislation i is constitutional. a

II. ai?

* Mertein maitre which the courts judicially notice, vertadn

_ presumptions with which they surround legislation, and the:

general attitude which judicial tribunals — = legis- ;

lation, all tend to support the act. -

‘é eagle

The relation between the grganic law and the’ police

power involves the principle that whether the letter of that

law or the police power shall prevail depends upon consid-

erations.of general welfare. In the actual balancing of the

letter against the power—the actual process ‘of balancing

‘considerations of public welfare—certain principles, pre-

sumption, ete, apply. Tliey determine what part the agurt

“and what part the legislature takes in the process, atid how

each shall play its part.

A.” The court i is bound to. ‘take judicial notice of the fact

that a grave economic emergency“exists. ’ |

‘. The courts emerald notice matters of common knowl-

edge. 7

— C. J., Evidence, sec. 1810.

‘The: best evidence that an emergency exists is public

i *ognition of the fact. The courts can. not be without

knowledge of that evidence. They know. that people in all

walks of life are continually discussing, and have for years

- bepi? continually discussing, the economic depression; that

newspapers and magazines have teemed, and. teem now more

than ever, with editorials aid‘other articles concerning it;

that books, have been written about it; that sermons have

zy been preached. about it, and that innumerable other dis-

courses have been pronounced concerning it; that there has

been discussion without end as to’ its cause or causes, its

_ numberless ramifications and effects, its composite charac- ‘~

ter (its consisting of or producing countless emergencies that

merge to make of it:one vast emergency), the time and man-

ner of its beginning, ‘its probable duration and how it may

end, as ‘well as what its after effects may be, and the possi-

bilities of curing or ameliorating it as a whole or in some one’

or more of its innumerable particulars.

_ That the e depression. has confronted the respective states

* a

‘

—

. on e 2 \

PE POON TRE EGE REE SCAN LE EE LE LOOM SEES ELE ANG LLL EE AS ELIE ELEN ELLE BLP ION SLES OLS RESET DL

om GR on

‘individually and the United States as whole with countless

and various detriments and dangers, is also a matter of com-

mon knowledge. ‘Tt is even such knowledge, that the whole

- eivilized world faces an emergency. Recently representa- i

”*

,. torremove still beset the world—these facts are all mattersof ~~

sider the economic problems of the world. The fact.that

there was such a conference, the fact that it found the prob-

lems overwhelming, the fact that it adjourned, temporarily

at least, without having solved the problems, and the fact .

that most:if not all of the detriments and dangers it sought,

the most common of common knowledge.

It would seem. to require no specific, authority. for the .

proposition that a court may*fudicially notice the existence

of a public emergency. Yet such authority exists.

Block v. Hirsch, supra, 256 U. S. 135, 154;

Chastleton. Corporation v. Sinclair (1924), 264 U. S.

., 643, 547, 68 L. Ed. 841, 448. Ct. 405. -

te the latter case this court said it could Jadicially. notice

that an emergency has passed. It would be strange if a court |

ould: notice, judicially, that an emergency has passed, but

, ; <7

eS:

could not notice, judicially, that’ an emergency has not. |

passed. This court is bound to notice that the depression,

as a whole an emergency, has not. passed,-and that the ex-

igencies which it embraces or of which it is composed, among

them the. exigencies: of the real estate mortgage situation,

have not passed; moreover, that the real estate mortgage

situation i is not confined te any one state, but’ is of nation- -

wide scope, and. _ been and is the pet of national a Sage

effor for relief..

a court judicially notices the proclamations, and

the contents thereof, of the President of the United States:

23 C. J. — sec. 1900. as

—- 56 —*

Therefore ‘this court knows that. the Presidstit, in ‘his

proclamation of a bank holiday. (proclamation of March 6,

1933), proclaimed the existence of an economic ‘emergency

of national seope. j

3. This ae judicially, potions’ acts of Congress.

“O98 CL, Ev idence, see. 1947. | i

e .

‘That the Colgrces hereby dichaven that the | present |

economie depression has ereated-a serious emergency,

due ‘to widespread: unemployment and increasing in-

didequacy of State and local relief funds, resulting in

the existing or threatened deprivations of a consider-

able number of families and individuals of the necessar,

ies. of life, and making it imperative that the Federal

Government cooperate more effectively with the several

oe... States-and Territories and the Dist viet of Columbia i in

furnishing relief to their needy and distressed people.”

Federal Emergency Rolief Act of 1933 (IL. R. ‘oo,

» aphroved May 12, 1933) ; initial part of act.

See also See, 4 (a) of the Act. ~ 4 * : mn

‘That ‘the present acute econoniic emergency being

in part the consequence of a-severe and increasing dis- -

. parity between the prices of agricultural and other com-

modities, which disparity: has argely destroyed the pur-

chasing power of farmers for industrial products, has

ae - broken ‘down the orderly exchange of commodities, and :

;, | dias seriously impfiired the agricultural assets support- :

| ing the national credit structure, it is hereby declgred

that these conditions in the basic industry of agriculture

ate have affected transactions in. agricultural cgmmodities .

with a national public interest, have burdened and ob-

_ structed the normal currents of commerce in such com- *

modities and render. imperative the immediate enact-

ment of title I of t th his Act.”’ ig ae

A ricultural ARieitianit Act (HL 4 » 3885, approved

_ May 12, 1933) ; a to Title I. =

ey . : os

“Section “I. A. national. emergency produetive: of

widespread unemployment and disorgani2ation of in-

dustry, which burdenge interstate and foreign commerce,

of. living ‘the American people, is hereby declared to

bata ila . 3

_ National Industrial Biaoviits Act, of Fine 16, 1933.

See also the Emergency Railroad ‘Transportation Act,

1933 (S,,1580, approved June 16 1933), Sec. 2—reference, to

‘the present acute economic ememiency. oe :

4, The court may not. only take judicial notice of the

above ciféd and other congressional acts referring to the-de-

pression, but may take notice of all allusions to it in the .

_ Congressiona] Record, in which numerous discussions of the

econonsie debacle and” references to it are reported. ..

98 O, J., Evidence, sec. 1934, and: ale i pairticu-

.. larly f. n. 95 (a, 4).

Geet declaration by a legiglature concerning

public conditions that by necessity and duty it must know,

“is entitled at least to great respect.”’.

Block v. Hirsch, supra, (256. U. S. 135, 154).

See also, on the respect due to a legislative declaration of

the existence of an emergency, Chastleton Corp: v..Smelair,

supra, (264 U. 8. 00), ° .: :

Block v. Hirsch and: Chastleton Corp. v. Sinclair. concern

the respect which this court owes to declarations by Con- .

gress, bat it is submitted that. the court owes the same re-

: spect to the declarations of state legislatures,

- — In Union Dry Goods Co. v. Georgia Public Service Corp. be

248 U.'S. 372; 39 S. Ct. 117, 9A. L. R. 1420, reference is made

- to ‘the. exigencies of the public: -welfare when determined -._

in an. spprepriate manner by’ the authority of the State. Y

. “®, a

* 2 Am

_—

‘The reference is made in a manner to indicate that the de-

_ termination, by such authority, that the state faces an emer- —

gency, is entitled to more than great respect—is entitled to,

* be regarded, by this court, as ey a conclusive find-

ing. ,

It has been Gtincinheapi' in an sngecuslate manner by the. ~

_ authority of the State of Minnesota that the real estate

exigency. The act involved in the case at bar declares the

existence of a ‘‘public economic emergency.’’ And both in

the case at bar and in State v. Moeller, 249 N. W. 330 (ad-:

vance sheet),. the Supreme Court of Minnesota has taken

judicial notice of the: public emergency attendant upon the

real estate mortgage situation in that state. ;

B. Numerous presumptions come to the aid of a legisla-

_ ture, to support its:enactments, and it seems that both fed-

eral and state courts indulge the same presumptions with

regard. to whether state legislation 1 is aren to the fed-

eral constitution.

In the first place, numerous cases attest the general propo-

- sition that any legislative act whatsoever is clothed with

a strong presumption of its constitutionality.

Third Dec. Dig., Constitutional Law, Sec. 48 ;

SC. 2. ‘Constitutional Law, sec. 201,

Not only is it- presumed that an act of the legislature of a

. state is in harmony with the constitution of the state, but -

there is a presumption that the act does not violate the Con-

stitution- of the United States.

12 C. J.; Const. Law, sec. 226, citing, among other

; cases, McCabe v. Atchison, etc., Ry. Co.: (1911),

186 Fed. 966; (1914), affd. 235 U. S. 151, 59 L.

Ed. 169, 35 S. Ct. 69.

_ Every reasonable’ presumption will he made in behalf of

the aaneraesinie kh of-a legislative act.

— 59 —

Eckerson v. Des Moines (1908), 137 Iowa 452, 115

N. W. 177. ~~

The police power, though so exerted by the a as

‘to interfere with contracts, is ment: to be aguante

used. -

en v. Colfax Coneel. Coal Co. (1916), 175 Iowa

245, 154 N. W. 1037 ;

| LR. A. 1917 D, 15,. Ann. Cas. 1917 E, 803.

Certain cases hold that a legislative act. will be held con- ’

stitutional unless clearly shown not to be so.

12 C. J., Const. Law, sec. 222.

Certain other cases hold that a legislative act will be held

constitutional unless shown beyond a reasonable doubt not

to be so. | :

Third Decennial Digest, ‘Constitutional Law, sec. 48 z.

» (see p. 470); . .

12C. J., Constitutional Law, sec: 222.

Or unless the act is plainly unconstitutional.

Third Dec: Dig., Constitutional Law, sec. 48 tone p.-

466) ; ,

12 C. J., Constitutional Law, sec. 222.

And/or palpably So.

Nolen v. Reichman (1915), 925 Fed. 812;

* Younker v. Susong (1916), 173 Towa 663, 156 N. W.

24.

Or unless clearly and palpably so.

Third Dec. Dig., Const. Law, sec. 48, (see > 472).

A recent pronouncement in ade is as follows:

“Courts are reluctant to declare legislative enact-

“ments unconstitutional, and will do.so only when the

violation is clear, palpable, and practically free from

a." ag :

Wangh v. Shirer (lowa), 249 N. W. 246; |

See also Hubbell v. Herring (Lowa), 249 N. W. 430, . °

435.

Among meet cases in point on the presumption of con-

stitutionality and the duty of the courts to seek to sustain

rather than defeat legislation, are the following:

- Jefferson County v. Busby (Ala.), 148 So. 411, 413;

State v. Dyer (Fla.), 143 So. 201, 203;.

State v. Prevatt (Fla.), 148 So. 578, 579;

Wayne Township v. Brows (Ind.), 136 N. E. 841, 847; ~

Chassanoil v. City of Greenwood (Miss.), 114 So. 781,

783; as

_ Rider v. "Cooney (Mont.), 23 Pac. (2d) 261; ;

State v. Hall (Neb.), 249 N. W. 756, 758-9;

People v. Nebbia, 262 N. Y. 269, 186 N. KE. 694, 699 ;

Commonwealth v. Great American Indemuity Co.

(Pa.), 167 Atl. 793, 797-8;

_ Utah Mfrs. Ass'n. v. Stewart (Utah), 23 Pac. (2d)

229, 232;

Richmond Linen Supply Co. v, City of Lynchburg

(Va.), 169 _ K. 554;

Aetna Ins. Co. . Commonwealth (Va. ), 169 S. E.

: 859, 864; -

Mason v. City of Seattle (Wash.), 24 Pac. (2d) 91, 92;

Leonhart v. Board of Educatio (W. Va.), 170 S. EF. °

418, 421. . .

C. The courts are not concerned with legislative motives.

If the good faith of the legislature could be impugned,

we might make an argument like this:, If a statute is not

enacted in good faith, but palpably involves a fraudulent

‘assumption of the exercise of the police power, the statute -

is sought—ends other than those of general welfare—the

_ ‘statute itself breaks down the presumptions which clothe |

legislative acts. It is obvious that only in an unusual case

—a clear case of legislative mala fides—can the statute itself

defeat the presumption. Such a statute does not deserve to

have the question asked concerning it, whether the gereral

welfare is the more to be pregerved by the act or by adher-

ence to the letter of the constitution. Such a statute should

-without hesitation be declared unconstitutional. |

Not only is there no apparent basis for such an argument,

' but if basis for it existed it could not be made, because bad

faith can, never be imputed to a legislatyre. A proper mo-

tive for every legislative enactment is conclusively pre-

suined. Leuiee a Soe

12 C. J.; Constitutional Law, sec. 224;,:

Appalachian Elec. Power Co. v. Smith, 4 Fed. Supp. -

* Blanchard v. City of New York, 262 N. Y.5,186'N. E.

29, 32. P : = | :

This court applies the presumption of proper motive to the

acts of state’legislatures as well as to the acts of Congress.

(1891), 142 U.S. 510, 544, 12 S. Ct: 308, 35 L. Ed.

1099. .- : aoe

“The motives of legislators in the enactment of a — |

statute cannot be inquired into judicially in determin-

ing the validity of the enactment.”’

‘Third Dec. Dig., Constitutional Law, sec. 70 (3), eit-

ing among other cases, Smith v. Kansas City

‘Title & Trust Co. (1921), 255 U. S. 180, 210, 41

_ §. Ct. 243,65 L. Ed. 577. — ;

‘‘No principle of our constitutional law is more firmly

~ established than that this court may not, in passi' g upon

the validity of a statute, inquire into the motive of Con-

gress. United States v. Des Moines Navigation Co.,

142 U. S. 510, 544; McCrary v..United States, 195 U.S.

see _e—

27, 53-59; Weber v. Fried, 239 U. 8. 325, 330; Dakota |

184. * @ #9)

| Hamilton v. clei Distilleriés Co.:, ‘supra, (251

_U. 8. 146, 161). ——

D. Legislative policy is nol matter for judicial re-

view. . It is not: for the courts to say whetler legislation is -

‘ wise or unwise, whether it nianifests good policy or bad.

“The question of the wisdom, justice, policy, or rex. ;

pediency of a statute are for the Legislature alone.”’ =:

Third Dee. Dig. ., Constitutional Law, sec. 70 (3),. cit.

ing, among other cases:

- National Union Fire Ins. Co. v. Warburg (1922), 260

rr, U.S..71 (see 77), 43 S. Ct..32, 67 L. Sed. i;

a ' U nited States v. Lanza (1922), 260 U. ” 377 — 385),

= ; 43S. Ct. 141, 67 L. Ed. 314.

“Nor may the court inquire into the wisdom of the

_ 421; Gibbons v. Ogden, 9 Wheat. ‘i 197; Brushaber -v.

Union Pacific R.-R. Co., 240 U. 8. 1, 25; Rast v. Van

Denman & — Co., 240 U. S. 342, 357.7

: ' Silane. Suibaiies Distilleries Co., supra, (251 U. "7

_* -, §. 146, 161).

See dee ae: ee

Block v. Hirsch, supra (256 U.S. 135, 138) ;. 3

ae Union Dry Goods Co. v. Georgia Public Service rakinies

aie supra (248 U. §.-372, 374) ;

Atlantic Coast Line Rd. Co. v. Goldsboro, supra, Ce

U.S. 548, 558).

And the following recent decisions: _

Wiliams v. Mayor, 53 S. Ct: 431, 433;

Wonder Bakeries Co., Inc.,.v. White, 3 F Supp. 311;

Jefferson County v. Busby —_ ) 148 So. 411, 413;

el oa |

—-\ State v. Dyer (Fla.), 143 So..201, 208-4;

_ Mississiggi State Tax Commission v. Flora Drug Co.

| (Miss.), 148 So. 373, 377; = .

Little v. American State Bank (Mich.), 249 N. W. 22,

People v. Nebbia, 262 N. Y. 269, 186 N. E. 694, 699;

McPherson v. Fisher (Ore.), 23 Pac. (2d), 913, 914;

State v. Morrison (S. Dak.),; 249 N. W. 563,560;.°

a % r* Board of Education (W. Va.), 170 S. E.

| 418, 421. ae : .

- Therefore the court is not.concerned with whether eredi- 7

tors may also be debtors. If the legislature deems it more

| important to the public: welfare to go to the aid of debtors

‘than to go to the aid of creditors, if the latter need aid, the

matter lies in the realm of legislative wisdom and discretion.

_ Legislative wisdom or lack thereof, in doing. nothing for

creditors in the period 1912-1920, a: period of rising prices:

and security-valuations, if indeed anything could or should

have been done for creditors in that period, is not a proper

matter for judicial inquiry, and is not a proper criterion by -

‘which to determine whether a present exercise of the police.

power, for the relief of the public through the relief of mort-

- gagors of real estate, is or is not a valid exercise of the .

power. penn ee ak a

- If it is the thought of the legislature that in view of the

large areas of agricultural lands in the state and the great

- ‘number of its citizens who are.engaged in agriculture, which

js a paramount industry of the state, the vocation of the

- farmer’ is. 80 fundamentally important that every effort

- - should be made to help the farmer remain on his farm, the

legislature is certainly entitled to the thought.. If itis the .

thought of the legislature that homes and homeowners are

of such fundamental importance to the state that every effort —

should be made to, help the homeowner keep his home, the

. - legislature is certainly entitled to the thought. If the legis-

eens.

lature has the thought that although in these times most

creditors are debtors, nevertheless there are more debtors

than creditors, and that a‘man’s distress in the capacity . of

debtor is greater than his distress in the capacity of creditor,

_eoncession. to debtors.than b by. a concession to creditors, the

legislature i is certainly entitled to the thought: “Tf the tegis=-—-—

lature-has the thought that:although it can do something

positive for the general welfare by aiding’ mortgagor-debt-

ors, there is little or nothing positive it can do to aid mort- |

gagee-creditors, and that to do nothing with regard to mort-

gage debts is but to let a bad situation grow worse, alike for

mortgagurs and mortgagees and the public in general, the

legislature is certainly entitled to.the thought.

EK. The legislature is the first judge of what-is for the -

greatest good of the greatest number, and so for the true

- ultimate good of all.

“Great constitutional provisions must: be adminis-

tered ‘with caution. Some play must be allowed for the

joints of the machine, and’it must be remembered that

_ legislatures are ultimate guardians of the liberties and

welfare of the ee in quite as great a degree as 8 the

courts.’’ |

a ‘iat, Kansas & Texas Ry. Co. ». May (1904), 194

U. S. 267, 270, 24S. Ct. 638, 48 L. Ed. 971. |

_ **The legislative department is the judge, within rea-

_ sonable limits, to determine what public convenience

and public welfare require, and the wisdom of its leg-

_.islation is not the concern of the courts. It is our duty

- to sustain an act, unless its invalidity is-in our judg-

ment beyond a reasonable doubt. Beach v. Bradstreet,

85 Conn. 344, 82 Atl. 1030, Ann. Cas. 1913 B, 946; State

v. Lay, 86 Conn. 145, 84 Atl. 522; Cooper v.. Telfair, 4

* Dall. 14, 19, 1 L: Ed. 721.

“The Legislature by the passage’ of this act has ;

inline

judged that the public convenience and welfare would

be substantially subserved by its enactment.””

, State v. Bassett (1924), 100 Conn. 430, 123 Atl. 842,"

37 A. L. BR. 131. ie | :

I. Before the court can overturn the act, the court must |

- find that the legislature made a mistake as to whether there

= \- any basis in fact for a finding that the public welfare is

jeopardized, else a mistake as to whether there is any rea- |

_ sonable connection between the provisions of the act and the |

thing which jeopardizes that-welfare. | : :

The police power is exercised. improperly if ‘‘there

is no basis in fact on which to support the legislative

finding of public welfare, or when the remedy prescribed

has no possible connection with the evil to be cured.’’

American Coal Mining Co. v. Special Coal & Food

Commission of Indiana (1920), 268 Fed. 563;

(1921) appeal dismissed, 258 U. S. 632, 64 L. Ed.

801,428.Ct.273, ~ -. —. oe

And see: _

State v.Harper1923), 182 Wis. 148, 196 N. W. 451,

—~ 458, 33 A. L. R. 269; es ee ay

People v. Coulides, 265 N. Y. Supp. 765, 768 (recent

case). | sre ;

The court is confronted by two questions: 1. Whether a

basis in fact exists for the legislative judgment that a real

estate mortgage situation of an emergency character exists,

‘ or whéther such judgment is unreasonable (arbitrary). 2.

Whether the statute has ‘‘any possible connection with the

evil to be cured.”’ | er ‘i

A thing is. arbitrary which is without. basis in any fact

other than the pleasure or caprice of the author of the thing,

and therefore without a reasonable basis, or basis in reason;

unreasonable. Baas |

Ll -_

See ‘Lindsley v. National Carbonic Gine Cb. 220 U. S. 61,

78, 31 S. Ct. 337, 55 L. Ed. -369, Ann. Cas. 1912 C, 160.

The court judicially notices the existing emergency—judi-

public welfare.’’ Consequently the legislative finding that }

such an emergency exists ¢annot be unreasonable (arbi-.

_ trary). However, were the court without knowledge of such

oes ‘basis in fact, ”? the court would ‘be bound to oe its

existence. \"

Such facts and cireumstances as. must exist to render a

legislative act constitutional are presumed to exist.

12 LC. J, Constitutional Law, 8 sec. 222.

It WA even Deine ‘said that it is thé duty of the edurt to

assume the existence of any conceivable facts and circum-

stances the existence of which is — to the constitu-

tionality of a legislative act; |

State v. Hutchinson Ice Cream Co. (1914), 168 Towa.

- 1,147 N. W. 195, L. R.A. 1917 B, 198; (1916).

affd. 242 U.S. 153, 37 S. Ct. 28, 61 L. Ed. 7.

The legislature is presumed to have passed an act with full

_ knowledge of existing conditions. . ;

‘12 C. J.,.Constitutional Law, sec. 225. ee

And see U nited States v. Des Moines Navigation and .

; Ry Co., supra, (142 U. S. 510, 544). 4

hia are tecent cases in point 6n the proposition that —

legislature is presumed to have found the facts on a which its

power to act must be predicated. ,

Hutchens v. Jackson (N. Mex.), 23 Pac. (2d) 355;

Leonhart v. Board of Education. i Va.), 170 8. E.

418, 421.

‘<The most that can He > said is that oe that deter-

- Inination was an unreasonable, arbitrary or unequal

exercise of power is fairly debatable. In such circum- —

. . >» a

e ° ‘i

. i .

—_——— —_—_—_—_

* :

stancés, the settled rule of.this court is that it will not

\. substitute its judgment for that of the legislative body

- -\eharged with the primary duty and responsibility ef

‘determining the question. _Euclid v.-Ambler Co., supra

99 \

| 294; Hadachek'v. Los Angeles, 239 U. S. 394,-408-

412, 413-413; Cusack Co. v. City of Chicago, 242 U. S.

_ 526, 530-531; Rast v. Van Danman & Lewis, 240 U. S. |

342, 357; Price v. Illinois, 238-U. S. 446, 452.” -

‘Zahn v. Board of Public Works (1925), 274 U. S. 325,

328, 47 S. Ct. 594, 71 L. Ed. 1074. .

It is submitted, therefore, that where reasonable minds

. cagnot differ over whether there is an-emergency, it is as

fully a matter of judicial as: of legislative finding that an.

emergency does or that one does not exist, but that if rea- -

sonable minds can differ in the matter, so that it is one of

reasonable doubt, the finding of the legislature ‘should be

deemed conclusive. Where the legislative finding is in rea-

son indis utedly right, as where it is fortified by judicial

mn 2 the presumption, in favor of the finding cannot

by any possibility be overcome; where the finding is in rea-

son indisputably wrong—clearly. unreasonable or arbitrary

‘the presumption: is. automatically overthrown. Wherein _

- reason there is doubt whether the finding is right or wrong,

whether well or ill founded; the presumption controls. “The

legislative finding that the real estate mortgage situation is

an emergency situation is in reason indisputably right—

" judicial knowledge fortifies the presumption in favor of the «

» finding ; it is insuperable. ar ee ee

Principle applicable where legislative judgment is

obviously erronedas: ‘‘The-court is not at liberty to

shut its eyes to-an obvious mistake, when.the validity of

the law depends on the.truth of what is declared. Block.

‘y. Hirsch, 256 U. S. 154. Chas. Wolff Packing Co. v.*

Court of Industrial Relations, 262 U.S. 522, 536.”’

The Chastleton Corp. v. Sinclair, supra, (264, U.S.

543, 547).

The neiticinie ebhiailli wales the Mitadiatibe judgment

_ is obviously’ correct, as where the legislative finding coin-

cides with something that is a matter of judicial knowledge,

‘may be stated thus: The-court is not at liberty to shut its —

eyes tova legislative declaration of what is a generally known

fact, whether or not the validity of a law demands on the .

truth of the declaration, but especially if the validity of a

law so depends. If there were no emergency and. it ‘vere

gener lly known that none existed, but the legislature should

decla e the existence of one, the court would take notice of

obvious legislative mistake. ‘Needless to say, the court

may equally iiotice the truth of a legislative finding of the’.

éxistence of an emergency when its existence is obvious. ”

Somewhat in point is People v. ‘Le Fetra (1921), 230 N, Y.

429, 180,N. E. 601, 604. 4

Principle. angicable where there " doubt while the’

legislative judgment is correct: ‘‘In determining the .

question as to the constitut tionality of an act of the Leg-

islature, we must remember that the Legislature is an —

independent part of our government. Itis presumed to .

have had the Constitution in mind in passing thé act. It.

is the exponent of the popular-will, and its acts must‘be

treated with respect, reconciled, and sustained if possi-

_ble. A-court is.never justified in setting at'‘naught the ~

will of the Legislature, ‘unless it is clearly repugnant to . °.

the Constitution. The rule laid down in Fletcher v. Peck, ° °

_ 6 Cranch 87, 128, 3 L, Ed. 162, is sound and salutary: -

‘The question, whether a law be void for its repugnancy. ~

to the constitution, is, at all times, a question of much |

delicacy, which ought seldom, if eyer, to bé decided 1 in.

. the affirmative, in'a doubtful case.’ =

Leonhart v. Board of Education (W. Va. dor 170 S. E.

*-418, 421, — case).

—69—

7 It i is submitted, moreover, that ‘‘necessary,”” in such an

expression as ‘‘necessary for the public welfare,’’ has refer-

. ence more to the situation or occasion from which the legis-

‘lation springs than to whether thé particular remedy is-the

* only one of even the best one that could be supplied. Giyx

the actual occasion or situation which reasonably, thoagh

not absolutely, involves a necessity for action, because of

some actually existing or actually threatened pubtic détri-

ment or danger, any enactment, though the least reasonable’

or least desirable of a-number of possible. enactments that .

could, within reas@n, be regarded as designed to terminate

‘or Obviate the particular detriment: or danger, is ‘within the

_, meaning of ‘‘necessary for the public welfare’’—is legisla-

tion for a public ‘‘need.’’ *

“The dodtrine that the police power is a law of neces-

sity may well be'said to furnish the key to what is within |

and what ds without the boundaries of such power; not

that a police regulation to be legitimate must be an abso- .

Jute essential to the public welfare, but that the exigency °

to be met must so concern such welfare as to suggest,

reasonably,. necessity for a legislative remedy.’’

“State v. Redmon.(1907), 134 Wis. 89, 114 N. W. 137,

.126 Am. St. Rep. 1003, 14 L. R. A. N. 8. 229, 15

Ann Cas. 408.

“And see:

City of Chicago v. Weshinctboiin Home (1919), 289. .

“Il. 206, 124.N. E. 416, a sees L. R. 1584.

. In. most cases, the court j is more penne with the rea-|

the necessity of adopting a means, because the necessity is

always factual, ‘but the means is always a law. Given the

necessity, the law must be a reasonable means to the end,

Can any one doubt that the statute involved in the.case at

bar is a sisnaiinailiter means ‘to an end penny sought by the

cee 2 legislature?

« Exercise of the power is primarily though int eon-

clusively for the legislature and so long as its exercise

of the power bears reasonable relation to a legitimate

purpose, the courts may not interfere.’’

Third Dec. Dig. a Constitutional Law, sec. 70 (3) (see

P. 597).

And see State v. Marsex (1993), 182 Wis. 148, 196 N. Ww.

451; 452-3, 33 p Be L. R. 269.

_ ** *.\* the validity of a police regulation, whether

established. directly by the State or by some public body

acting under its sanction, must depend upon the circum-

ec. stances of each case and the character of the regulation, —

. whether arbitrary or reasonable and whether really de-

a signed to accomplish a legitimate public. purpose. ’’

Chicago, Burlington & Quincy Ry. Co. v. People, sue

N _ pra, (200 U. 8. 561, 592). :

™ “Tt was said in Purity Extract € Tonic Co. v. Lynch,

226708, 102 204, 33 Sup. Ct. 44, 47, 57 L. Ed. 184, that,

in examining a given statute relating to an appropriate

— subject of “palice regulation to deterinine whether its

provisions aré“reasonable—

‘The inquiry must-be whether, considering the et aa

-view, the statute passes-the bounds of reason and as-

sumes the character of a merély arbitrary fiat’.’”

State v. Bassett (1924), 100 Conn. 430, 123 Atl. 842,

37 A. L. R. 134.

‘Even as. to the a whether the law, as a means, is |

reasonable, it would seem that the lawmaking branch of

the government and not the court is the first judge, and that

-its judgment should not be’overruled unless plainly, clearly,

palpably, wd beyond a reasonable doubt, ‘such judgment is

wrong. — @

_ «¢* * * Tt is enough that we are not warranted in

saying that legislation * * * has no reasonable relation

to the relief sought. Chicago, Burlington & i R.

R. Co. v, McGuire, 219 U: S. 549, 569...

Block v. Hirsch, supra, (256 U. - 135, 158),

And see: |

City of Aurora v. Burns, 319 Il. 84, 149 N. EK. 784, 787.

G. ‘SA large discretion is necessarily uk i in the

Legislature to determine, not only what the interests

of public convenience and welfare require, but what

measures are necessary to secure such interests. - Cot-

ter v. Stoeckel, 97 Conn. 244, 116 ‘Atl. 248; Young v.

Lemeuz, 79 Conn. 440, 65 Atl. 436, 600, 20 :. R. A. (N.

S.) 160, 129 Am. St. Rep. =, 8 Ann. Cas. 452”

State v. Bassett (1934), 100 Guns: 430, 123 Atl. 842,

: 37 A. L. R. 131.

_ cases, there is a wide discretion gn the part of the legis-

lature in determining what is and what.is not necessary

—a discretion which courts ordifiarily will not interfere

with. The leading case upon this point is that. of -

_ Charles River Bridge v. Warren Bridge, 11 Pet. 420,

in which a franchise to maintain a ferry between Cam.

_ bridge and Boston, under which a bridge was subse-

quently erected, was held to be subject to the power of

the legislature ‘to establish a parallel bridge between.

‘the same points. In Stone v. Mississippi, 101 U. S. 814,

a charter to a lottery company for twenty-five years was

' held to be subject to the power of the State to abolish

lotteries altogether. Similar cases announcing the same .

principle are Boyd v. Alabama, 94 U.:S. 645; Beer Com-

pany v. Massachusetts, 97 U.S. 25; Butchers ?Mnion

ati v. Crescent City Co., 111 U.S. 746; Mew Onheana 3

—72—_

Gas Co. v. Louisiana Light Co., 115 U. S. 650, cee 7

ler v. Kansas, 123 U.S. 623, 665; Chicago € R: R. Co.

v. Chicago, 166 U. S. 226." | |

Manigault v. Springs (1905), 199 U. S. 473, 480, 26

S. Ct. 127, 50-L. Ed. 274.

If. -**A limit in time, to tide over a passing trouble, well

may peany a law that.could not be upheld as a permanent

change.’’ :

. Block v. Hirsch, supra, (256 U. Ss. 135, 157).

One of the reasons Why Chapter 339, Laws of Minnesota

of 1933, does not involve an arbitrary assumption of power,

but a reasonable exercise of power possessed, is that by its

own terms the act will expire on May 1, 1935. By. that time

lature. Thus there will have been a legislative opportunity -

to judge whether circumstances and conditions that now lie

in the lap of the-future shall make it necessary, for the pub-

lie welfare, to extend the life of the act. Congress twice -

continued in effect the provisions of the emergency measures

considered in Block v. Hirsch, supra.

See The Chastleton Corp. v. Sinclair, supra, (264 U.S.

343).

‘It would have been Aiiets unreasonable on the part of

the Minnesota legislature to have provided in the act for the

termination thereof before the legislature is of a certainty to

convene again, and thus not to have forestalled the possi-

bility that the act might go out of existence at a time when

the extension of the period of redemption may, more feat °

ever, be essential to the publi¢ welfare.

As The Chastleton Corporation v. Sinclair shows, meas-

ures passed to meet an emergency, and valid when passed,

will continue valid as long as the emergency lasts, unless they

— 73 —

sooner expire by their own terms. No one knows how long

- the mortgage-situation emergency: will last. That it is still

with us admits of no more doubt than that it was with us

' when said. Chapter 339 was passed. .

A.law ‘« depending upon the existence of an emer-

gency or other certain state of facts to uphold it may

cease to operate if the emergency ceases or the facts

change even though valid when passed.’’

The Chastleton Corporation v. Sinclair, supra, oes .

U: S. 543, 547).

The quotation from The Chastleton Corporation case

must not be taken too literally. No one knows just when the ;

depression began; no one will ever be able to say just when

it will have ended. Even after it may be said to be a thing

of the past, innumerable readjustments ‘must follow in its

train. The owners of farms and homes, in order ultimately

to save them, may need a post-depression period in which

to adjust their affairs.. If we could be sure beyond peradven-

“ture of a doubt that the depression will have become a thing

of history before May 1, 1935, we would still maintain that. |

the act does not unnecessarily extend the period. of redemp-

tion.

. and dispersion of the (insurgent) forces. It carries

_- with it inherently the power to guard against the im-

mediate renewal of the conflict, and to remedy the evils

which have arisen from its rise and progress’.’”: -

; Hamilton v. Kentucky Distilleries Co., supra, (251

U. S.. 146, 161). | .

_ It does not devolve’ upon appellees to show that the

statute is constitutional, but qpen appellant to show, if ~

sible, that it is not,

—a4—..- «

WwW C. J., Constitutional Law, see. 221; .

Third Dee. Dig., Constitutional Law, see. ‘48 (see -p.

473).

when a litigant comes into court to declare

a particular statute null and void as being: beyond the

power of the Legislature to pass he must show precisely

and conclusively that it is beyond such power.”’ . |

at & +

People v. City Prison Warden, 286, 154 App. Div. 413,

. 139 N.Y. si 277. |

‘Recent cases in point: » 's ;

Waltams v. Mayor, 53 8S. Ct. 431,433; eo

. Jefferson County v. Busby (Ala. ), "148 So. 411; 413;

State v. Prevatt (Fla.), 148 So. 578, 579; a

McPherson v; Fisher (Ore.), 23 Pac. (2d) 913.

Appellant, to prevail, must show that such an emergency

as the act is intended to meet does not exist, else that, if the

emergency. exists, there is ‘‘no possible connection’’ (see

American Coal Mining C6. v. Special Coal and Food Com-

mission of Indiana, 268 Fed. 563)—we take this to mean no

possible reasonable connection—between the emergency and

the provisrons of the act. Appellant can not attack the act

on the ground that it is impolitic and unwise. Appellant can

' not attack the act on the ground that it is unnecessary, either

in the sense that, the emergency existing, it might, and per-

haps had better be, left to work itself out without legislative

interference, or in the sense that the legislature might have —

found a different and perhaps better way of meeting the

emergency—perhaps even a way that would not involve a

conflict between legislation and the letter of the constitution.

Appellant can not urge, because the court can not consider,

the grounds in’ question. Granted that there is an emer-

gency, and granted that the provisions of the statute are by

any reasonable possibility such as tend ‘to meet the emer-

geucy, the court is bound to hold the act constitutional; the

court is precluded from questioning the motive or the wis-

dom of the legislature or considering the necessity or the’

,nonnecessity of the legislature’s meeting the emergency in

the particular way in which the legislature has met it by

' the particular act in question.. a

: ITI.

‘The statute is not repugnant to the contract clause of

Section 10 of Article 1 of the Constitution of the United

States: i ; ae

A. Constitutional inhibitions upon impairment of the:

obligation of contracts yield to considerations of general }

‘welfare. Under the police power, the obligation of contracts :

‘may be impaired, and the police power of the people of the’ |

’ state may prevail not only over the contract clause of the —

constitution of the state, but over the contract clause of the

federal constitution also. : eae

court laid down the following proposition, with respect ‘to a

state’s want of power to bind itself not to contravene the let-.

ter of the contract cause of the federal constitution:

' _**'There can be now, in view of the many decisions of

this court on the subject, no room for challenging the

general proposition that the States can not by virtue of

the contract clause be held to have divested themselves

by contract of the right to exert their governmental au-

_ thority in matters which from their very nature so con- ®

cern that authority that to restrain its exercise by con-

. tract would be a renunciation of power to legislate for .

- the preservation of society or to secure the performance

of essential governmental duties.. Beer Company v.

Massachusetts, 97 U.S. 25; Stone v. Mississippi, 101 U.

S. 814; Butchers’ Union Co. v. Crescent City Co., 111

U.S. 746; Douglas v. K ennedy, 168'U. S. 488; Manigault <¢

ee.

v. s prings, 199 U.S. 473; we ee Orleans R. R.

. Co. v. Miller, 221 U.S. 408.”

Pennsylvania Hospital v. “Philadelphia 917), 245

U.S. 20, 23, 38 S. Ct. 35, 62 L. Ed. 124. |

Certainly, if the state can not bind itself not to impair the> =

obligation -of its own contracts through the exercise of the

_ police power, the state is doubly free, in the interests of gen-

eral welfare, to exercise the power to impair the obligation of

contracts between individuals, especially in a matter as to

which the state has never even attempted. to aaa itself, by

contract, not to interfere. a ,

‘*Const. U. Ss, art: 1, Sec. 10, prohibiting impairment

of obligations of eontract, and due process and equal

protection clauses of 14th amendment do not extend to

‘subjects affecting general welfare of public.”’’

‘Third Dee: Dig., Constitutional ‘Law, sec. 117.

‘<The occasions to consider this subject in its bearings

upon the clause of the’ Constitution of the United States —

which forbids the States passing any laws impairing

the obligation of contracts has been frequent and var-

ied ; and it has been held without dissent that this clause

does not so far remove from State control thé rights °

and properties which depend for their existence-or en- - °

forcement upon contracts, as to relieve them from the

- general regulations for the good government of the

State and the protection of the — of individuals as

7: be deemed important.’’

2 Cooley, Constitutional Limitations (8th ed. 7 p. 1237.

~ In Union Dry Goods Co. v. Georgia Public Service Corp.,

"supra; (248 U.S 372, 377), Mr. Justice Clarke, in delivering

the opinion of the court, said, after citing a number of the

decisions of this court: |

“‘These decisions, a few of many to like effect, Should

suffice to show the most skeptical-or belated investigator

that the right of private contract must yield to the

exigencies of the public welfare when determined in an

appropriate manner by the authority. of the State,

: | —spi /

* Daal as RS ‘

_B. ‘Contracts are made subject to the exercise of the

police power of the state, when such exercise is otherwise

justified.’’ ete ee, ee Lee gi ea

Third Dec. Dig.,. Constitutional Law, see. 117;

Recent case: City of Butte v. Roberts (Mont.), 23

_ Pace. (2d) 342. i ae ar?

‘‘All contracts, whether made by the state itself, by

to be interfered with, or otherwise affected by, subse-

quent statutes enacted in‘the bona fide exercise of the

police power, and do not, by reason of the contracts

clause of the constitution, enjoy any immunity from such

legislation. ’’ :

12 C. J., Constitutional Law, see. 603. -

‘*All contracts and all rights, it is declared, are sub-

ject to this power, and not only may regulations which

ulations must be subject to change from time to time,

or as experience. may demonstrate the necessity.”’ .

2 Cooley, Constitutional Limitations (8th ed.); p. 1237.

‘Contracts are inherently subject to the impairment. of

their obligation through the exercise of the police power; a

‘contract is entered into subject to the possibility that it

may have to yield in whole or in-part to the exigencies of the

. public welfare. - ait vt :

Edgar .A. Levy Leasing Co. v. Siegel, supra, (258 U..

. &. 242, 249). any .

municipal corporations, or by individuals, are subject |

affect them be established by the State, but all such reg- .

as the general well-being of the community may require, |

—78—

’ In Dike Brown. Holding Co. v; Feldman. (1921), 256 UL

S. 170, 198, 41 S, Ct. 465, 65 L. Ed. 877, Mr. Justice Holmes,

delivering the opinion of the court stated that

‘‘contracts are made ‘eubjoae to ‘this exercise of the

power of the state when. otherwise justified, * * *.

Manigault v. Springs, 199.U. S. 473, 480; Louisville &

Nashville R. R. Co. v. Mottley, 219 U. S.°467, 482; Chi-

. -* cago & Alton R. R. Co, v. Tranbargar, 238 U.S. 67, 76,

77; Union Dry Goods Co. v. Georgia Public. Service Cor-

coe v. Railroad Commission of os ci 251 U.S. 228,

, a ”’

In Atlantic Coast Line Rd. Co. v. Sistibhstion supra, (232

U. S. 548, 558), Mr. Justice Pitney, in delivering the opinion

_of the court, said that

he ft settled that neither the ‘contract’ pone nor the

“due process’ clause has 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 rights are held subject. to its .

fair exercise. Slaughterhouse Cases,.16 Wall. 36, 62;

Munn v. Illinois, 94 U.S. 118, 125; Beer Co. v. Massé-

_ chusetts, 97 U. S. 25, 33; Mugler v. Kansas, 123 U. S.

623, 665; Crowley v. Christenson, 137 U.S. 86, 89; New

York, ete, R. R. Co. v. Bristol, 151 V. S. 556, 567 ; Texas,

etc. R. R. Co. v. Miller, 221 U.S. 408, 414, 415. r

C. The reasons for the principles here set forth are .

stated as follows by Mr. Justice. Brown, in Manigault v.

Springs, suprd, 199 U. S. 473, 480.

“Tt is the settled law of this court that the interdiation

of statutes impairing the obligation of contracts does

not prevent the State from exercising such powers as

are vested in it for the promotion of the common weal,

“<

eee

or are necessary for the general good of the public,

though contracts previously entered into by individuals

may thereby be affected. This power, which in its vari-

ous ramifications is known as the police power, is an

exercise of the sovereign rights of the government to |

protect the lives, health, morals, comfort and general —

welfare of the people, and is paramount to any rights

under contracts between individuals. Familiar instances

of this are, where parties enter into contracts, properly

lawful at the time, to sell liquor, operate a brewery or

distillery, or carry on a lottery, all of which are subject

‘to impairment by a-change of policy on the part of the.

State, prohibiting an establishment or continuance of

such traffic;—in other words, that parties by entering |

into contracts may not estop the legislature from enact-

_ ing laws intended for the public good.”’ thy

‘‘This rule is not only reasonable but, necessary, as

a contrary rule would enable individuals, by their con-

tracts, to deprive the state of its sovereign power to |

enact laws for the public welfare.’ | | ;

12 C. J., Constitutional Law, sec. 603. ' ;

‘‘If contracts valid when made, covering a subject

matter within the police powér, are not subject to the

subsequent exercise of that power on the part of the

_ State it would place in the hands of. individuals the

power to withdraw from the state the right to subse- ae

quently exercise its police power.”? ,

‘Raymond Lumber Co. v. Raymond Light, ete., Co. _

- (1916), 92 Wash. 330, 159 Pac. 133,.136, L. R. A.

1917 C, 574.. mn ee ea ns

D. Much has been said and written about the sanctity of *

contract. Even if there were no contract clause in the con-

stitution the law would undoubtedly hold the contractual

obligation sacred. In general, it is for the public welfare to

hold sacred the obligation ¢f contracts, but contracts can

- not, under the pretense of sanctity, directly or indirectly

defeat that welfare. | ! ne

As has been pointed out, contracts are inherently subject

/ —80—

‘to the impairment of their obligation through the’exercise of

the police power. (See [II B, this argument.) The sanc-

’- tity of contracts is, necessarily, corfditioned by the inherent

susceptibility of contracts to yielding to thie police power —

_and the demands: of general welfare.

The contract clause was not incorporated | into the federal

constitution because g&the sanctity of contracts. There are

other obligations as legally and morally binding as those of

_contract, and therefore as sacred, but it was not thought

necessary to place them specifically under the aegis of the

organic law. Instance the obligations incident to the marital

statutes. - It hasbeen held that the contract clause; even, °

does not, ‘itself, —_— the obligation of certail™quasi con-

tracts.

Harmonson v. Wilson” (1887), F Hughes 207, Fed.

Cas. No. 6074 (11 Fed. Cas. 541, 549); — .

Morley v. Lake Shore Ry. Co. (1892), 146 U.S. 162,

13S. Ct\54, 36 L: Ed. 925 ;

Louisiana v. New Orleans (1883), 109 U: S. 285, 288,

38. Ct. 241, 27 L. Ed. 936;

Garrison v. City of New York (1871), 21: Wall. a

U.S.) 196,\203.

It may well be considered an. Open question whether the

contract clause was not more the result.of repudiation of -

debts by fin

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