« SebelumnyaLanjutkan »
As a matter of course, if the absolute prohibition of drinking saloons is constitutional, it would be lawful to subject them to more or less strict police regulations, where the regulations have for their reasonable object the prevention of some special evil which the prosecution of the trade threatens to the public. Thus it has been held reasonable to compel the closing of saloons on Sunday,' not only because the pursuit of the business would be a violation of the ordinary Sunday laws,” but also because there is increased danger on that day of breaches of the peace in bar-rooms, on account of the idleness of those persons who are most likely to frequent such places. It has also been held to be reasonable, for similar reasons, to prohibit the sale of liquors on primary and other election days; : on court, show and fair days; 4 compelling the saloons to be closed at a certain hour in the night, and in one case it was maintained to be lawful for the legislature to authorize the Board of Police Commissioners to order all saloons to be closed, “ temporarily," whenever in their judgment the public peace required it. It has also been declared to be reasonable to prohibit the erection of screens and shutters before places in which liquors are sold.?
This, therefore, is the conclusion reached after a careful consideration of all the constitutional reasons for and against the prohibition of the liquor trade : the prohibition of the manufacture and sale of spirituous and intoxicating liquors is unconstitutional, unless it is confined to the prohibition of drivking saloons, and the probibition of the sale of liquor to minors, lunatics, confirmed drunkards, and persons in a state of intoxication. As has already been explained, there is an almost unbroken array of judicial opinions against this position, and there is not any reasonable likelihood that there will be any immediate revulsion in the opinions of the courts. But it is the duty of a constitutional jurist.to press his views of constitutional law upon the attention of the legal world, even though they place him in opposition to the current of authority.
| Hudson o. Geary, 4 R. 1. 485; Gabel v. Houston, 29 Tex. 335; State o. Ludwig, 21 Minn. 202.
2 As to which see ante, § 76.
6 State v. Welch, 36 Conn. 215; State v. Freeman, 38 N. H. 426; Smith v. Knoxville, 3 Head, 245; Maxwell v. Jonesboro, 11 Heisk. 257; Baldwin V. Chicago, 68 Ill. 418; Platteville v. Bell, 43 Wis. 488. In Ward v. Greenville, 1 Baxt. 228 (35 Am. Rep. 700), it was held to be unreasonable to compel saloons to be closed between 6 p. m. and 6. a. m. But a stat. ute prohibiting sale of liquors between 11 p. m. and 5 a. m. was held to be constitutional. Hedderich v. State, 101 Ind. 564 (51 Am. Rep. 768.)
6 State v. Strauss, 49 Md. 288.
7 Commonwealth v. Costello, 133 Mass. 192; Commonwealth o. Casey, 134 Mass. 194; Shultzv. Cambridge, 38 Ohio St. 659.
Police control of employments in respect to locality. Another more or less common mode of police regulation of employments is the determination of the localities, in which the trade will be allowed. Very many trades are beneficial to society in general, and it would be unconstitutional to prohibit them altogether, and yet they may be subjected to whatever reasonable regulations may be needed to avert or prevent some special danger, which is threatened by the prosecution of them. Very many instances of such regulations have been given in preceding sections of this chapter. A trade may be highly dangerous or offensive to the people, when prosecuted in one locality, while the danger or offensiveness may be dissipated altogether or considerably abated, if it is carried on in a different community. Machine shops and the cotton trade may be cited as a good example of trades, which are more dangerous in one locality than in some other; while a soap factory or a tannery may be referred to as illustrating cases, in which offensiveness would constitute a serious objection
1 See post $ 122c in respect to the confinement of objectionable trades to certain localities.
to their prosecution in the residential portion of a city. It would not constitute any unreasonable interference with the right to pursue without restraint any lawful trade or employment, if the legislative authority should require the prosecution of such trades and occupations within a certain area of a populous city, and prohibit them outside of such area. This power has been often exercised, and but rarely questioned. It has been held reasonable to prohibit the keeping of slaughter-houses in certain parts of the city, and to exclude hacks from certain streets. But the prohibition as to locality must be reason able, in order that it may not offend the constitutional limitations. If the area, in which the prosecution of a useful trade is prohibited, is so extensive that it amounts to a practical prohibition of the trade, the regulation will be unconstitutional. Thus it has been held to be unreasonable to prohibit the establishment of a steam engine in the city.3 A law has also been declared to be unconstitutional, which prohibited the manufacture of cigars in tenement houses, on the ground that the public health or comfort was endangered by the prosecution of the trade in such places. Not only has the legislature exercised the power of confining the prosecution of certain trades to certain localities, but it has very often, particularly in respect to the vending of fresh meat and vegetables, prohibited the plying of the trade in any other place than the market, established and regulated by government. This regulation is very common in all parts of this country, and has frequently been the source of litigation ; but it has generally been held to be reasonable. In the case of New Orleans v. Stafford, the Supreme Court of Louisiana presents forcibly the reasons which justify this police regulation:
1 Cronin v. People, 82 N. Y. 318 (37 Am. Rep. 564); Metropolitan Board of Health v. Heister, 37 N. Y. 661; Milwaukee v Gross, 21 Wis. 241.)
a Commonwealth v. Stodder, Cush. 561.
4 Matter of Jacobs, 98 N. Y. 98. 6 Buffalo v. Webster, 10 Wend. 99; Bush v. Seabury 8 Johns. 418; Winnsboro o. Smart, 11 Rich. L. 551; Bowling Green v. Carson, 10 Bush, 64; New Orleans v. Stafford, 27 La. Ann. 417 (21 Am. Rep. 563); Wartman o. Philadelphia, 33 Pa. St. 202; St. Louis v. Weber, 14 Mo. 547; Ash v. People, 11 Mich. 347; LeClaire v. Davenport, 13 Iowa 210. But see contra Bethune v. Hayes, 28 Ga. 560; Caldwell v. Alton, 34 Ill. 416; Bloomington v. Wahl, 46 Ill. 489. 127 Lu. Ann. 417 (51 Am. Rep 563.)
“ Has the legislature the power to make the regulation which it made by this act of the twenty-sixth of February, 1874, declaring that private markets shall not be established, continued or kept open within twelve squares of a public market? This question, we think, must be answered in the affirmative. And the power arises from the nature of things, and what is termed a police power. It springs from the great principle, salus populi suprema est lex. There is in the defendant's case no room for any well grounded complaint of the violation of a vested private right, for the privilege, if he really possessed it, of keeping a private market, was acquired subordinately to the right existing in the sovereign to exercise the police power to regulate the peace and good order of the city, and to provide for and maintain its cleanliness and salubrity. By way of illustrating this necessarily existing power to regulate the number, location and management of markets, take the city of New Orleans, in a warm climate, located in a low district of country, surrounded by marshes and swamps, which in the hot season under favorable conditions envelopes its large population in a malarious atmosphere. Under such circumstances the danger of epidemics becomes imminent. It behooves the city authorities at such periods to be on the alert to obviate local causes of disease within the limits of the city. Among such causes the decay of animal and vegetable matter is a prominent one. The markets therefore must on that account be strictly attended to and such measures adopted in regard to them as in the judgment of the proper authorities, the public health may require."
“ We presume it will not be denied that under circumstances of peril and emergency the law-maker would have the right to abolish or suspend an occupation imperiling the public safety. This power is inherent in him. He may exercise it prospectively for prevention as well as pro rata, for immediate effect. It is within his discretion when to exercise this power and persons under license to pursue such occupations as may in the public need and interest be affected by the exercise of the police power, embark in those occupations subject to the disadvantages which may result from a legal exercise of that power.
1 "The necessity of a public market, where the producers and consumers of fresh provisions can be brought together at stated times for the purchase and sale of those commodities is very apparent. There is nothing which more imperatively requires the constant supervision of some authority which can regulate and control it. Such authority in this country is seldom if ever vested in individuals. It can never be so well placed, as where it is put into the hands of the corporate officers who represent the people immediately interested. A municipal corporation, comprising a town of any considerable magnitude, without a public market subject to the regulation of its own local authorities, would be an anomaly which at present has no existence among us. The State might undoubtedly withhold from a town or city the right to regulate its markets, but to do so would be an act of tyranny, and a gross violation of the principle universally conceded to be just, that every community, whether large or small, should be permitted to control, in their own way, all those things which concern nobody but themselves. The daily supply of food to the people of a city is emphatically their own affair. It is true that the persons who bring provisions to the market have also a sort of interest in it, but not such an interest as entitles them to a voice in its regulation. The laws of a market (I am now using the word in its larger sense) are always made by the persons whoreside at the place, and that whether they be buyers or sellers. It is, therefore, the common law of Pennsylvania, that every municipal corporation which has power to make by-laws and establish ordinances to promote the general welfare and preserve the peace of a town or city, may fix the time or places of holding public markets for the sale of food, and make such other regulations concerning them as may conduce to the public interest. We take this to be the true rule, because it is necessary and proper, in harmony with the sentiments of the people, universally practiced by the towns,