STATE LIMITS OF POWER:
Cases regarding the police power of the state.
(extracted from another file and posted April 22, 2020)

    The courts have held that the states have a power known as the “police power.” You should know what is the “police power” as well as know about some of the laws which the courts have declared unconstitutional as outside the police power. Here are some of those cases:

A. Introductory Cases:

Replogle v. Little Rock, 166 Ark. 617, 267 S.W. 353 (1924): act relating to the regulation of the plumbing business was held unconstitutional:

“Under our State and Federal Constitutions all men have the inalienable right to acquire, possess and protect property and to pursue their own happiness, and of these sacred rights no man can be deprived without due process of law. Any statute, or municipal ordinance enacted pursuant thereto, which challenges the right of any person to engage in the legitimate and honest occupation of plumbing, without restraint or regulation, must find its justification in the fact that such a statute or ordinance is necessary to promote the general welfare. No individual can be deprived of the right to pursue his happiness in his own way, and to engage in honest toil in any avocation and in any manner he sees proper, in order to make a living for himself and those who may be dependent upon him, so long as he does not use such right in a manner to injure others. So long as the individual does not transcend this bound, his conduct is not subject to police regulation. Police power can only be exercised to suppress, restrain or regulate the liberty of individual action when such action is injurious to the public welfare. When statutes, and municipal ordinances pursuant thereto, have been enacted purporting to protect the health and welfare of a community, all doubts as to the constitutionality of such legislation must be resolved in its favor. * * * But, when such enactments are challenged as an invasion of the rights and liberties of the individual guaranteed by the fundamental law, then it becomes the duty of the courts to lay these enactments alongside the Constitution and determine whether the exercise of the police power in the suppression or regulation of ordinary occupations, trades or callings is really necessary for the public good.”

State v. Childs, 32 Ariz. 222, 257 P. 366, 369 (1927):

“A law enacted in the exercise of the police power must, in fact, be a police law. If it be a law for the protection of public health, it must be a health law having some relation to public health. In this day, when so many selfish and private schemes in the way of securing monopolies and excluding competition in trade are attempted under the mask of sanitary legislation, it may be an important question whether the judiciary are concluded by the mask, or whether they may tear it aside in order to ascertain who is in it. But with this we are not now concerned. It is, at least, settled that, if it is apparent on the face of the act that its provisions, from their very nature, cannot and will not conduce to any legitimate police purpose, it is the right as well as the duty of the court to pronounce it invalid, as in excess of legislative power and an arbitrary and unwarranted interference with the right of the citizen to pursue any lawful occupation.”

McKay Jewelers, Inc. v. Bowron, 19 Cal.2d 595, 122 P.2d 543, 546 (1942): jewelers wanted to hawk wares on sidewalk, but ordinance prevented; held unconst:

“If, in the opinion of the court, a statute or ordinance purporting to be enacted to protect the public health, safety, morals, comfort, convenience or general welfare has no real or substantial relation to any of those objects, it is the duty of the court to so declare. A legislative body may not, under the guise of the police power, impose restrictions that are unnecessary and unreasonable upon the use of private property or the pursuit of useful activities.”

B. Supreme Court Cases:

Adams v. Tanner, 244 U.S. 590 (1917): state law prohibiting employment agencies was void.

Meyer v. Nebraska, 262 U.S. 390 (1923): state law forbidding teaching foreign languages in school was void.

Jay Burns Baking Co. v. Bryan, 264 U.S. 504 (1924): state law mandating bread weight restrictions held void.

Weaver v. Palmer Bros. Co., 270 U.S. 402 (1926): state law preventing use of “shoddy” in mattresses held void.

Tyson & Bro.-United Theatre Ticket Offices v. Banton, 273 U.S. 418 (1927): state’s ticket broker price restriction law held void.

Lanzetta v. New Jersey, 306 U.S. 451 (1939): being mere member of gang can’t be made penal.

C. State Cases:

Town of Greensboro v. Ehrenreich, 80 Ala. 579, 2 So. 725 (1887): prohibition on selling used mattresses held unconstitutional.

Crawford v. City of Topeka, 51 Kan. 756, 33 P. 476 (1893): prohibition on advertising signs held unconstitutional.

In re Opinion of the Justices, 207 Mass. 601, 94 N.E. 558 (1911): statute preventing young women under 21 from entering Chinese operated hotels held unconstitutional.

Chenoweth v. State Board of Medical Examiners, 57 Colo. 74, 141 P. 137 (1913): prohibition on placing ad in paper beyond police powers of board.

Spann v. City of Dallas, 111 Tex. 350, 235 S.W. 513 (1921): law preventing building without consent of neighbors held beyond police power.

Goldman v. Crowther, 147 Md. 282, 128 A. 50 (1925): ordinance preventing business in home held unconstitutional (zoning case containing good cites and quotes).

Bruhl v. State, 111 Tex.Cr.R. 233, 13 S.W.2d 93 (1928): law regarding optometrists held beyond police power.

Travlers’ Ins. Co. v. Marshall, 124 Tex. 45, 76 S.W.2d 1007 (1934): state mortgage foreclosure moratorium held unconstitutional.

City of Miami Beach v. Cohen, 47 So.2d 565 (Fla. 1950): ordinance prevented entertainment at night club found beyond police power.

Town of Bay Harbor Islands v. Schlapik, 57 So.2d 855 (Fla. 1952): restriction on building during certain months held unconstitutional.

Berry v. Summers, 76 Idaho 446, 283 P.2d 1093 (1955): dental technicians law held beyond police powers.

Corneal v. State Plant Board, 95 So.2d 1 (Fla. 1957): law to control nematodes for citrus trees held beyond police power and constituted a taking.

People v. Bunis, 9 N.Y.2d 1, 172 N.E.2d 273 (1961): prohibition on selling magazines without covers held unconstitutional.

Delmonico v. State, 155 So.2d 368 (Fla. 1963): possession of spearfishing equipment law held unconstitutional.

City of Detroit v. Bowden, 6 Mich.App. 514, 149 N.W.2d 771 (1967): ordinance re shouting at cars on street held beyond police powers.

Bruce v. Director, Dep’t. of Chesapeake Bay Affairs, 261 Md. 585, 276 A.2d 200 (1971): crabbing restriction limited to resident’s own county held beyond police powers.

Maryland State Bd. of Barber Examiners v. Kuhn, 270 Md. 496, 312 A.2d 216 (1973): law making distinction between parties allowed to cut male and female hair held beyond police powers.

McGuffey v. Hall, 557 S.W.2d 401, 414 (Ky. 1977): compulsory medical malpractice insurance not shown within police power.

State v. Lee, 356 So.2d 276, 279 (Fla. 1978):  law provided funds to good drivers vis a vis “bad:

“The state’s police power cannot be invoked to distribute collected funds arbitrarily and discriminatorily to a special limited class of private individuals.”
Alford v. Newport News, 220 Va. 584, 260 S.E.2d 241 (Va. 1979): law preventing smoking in restaurants held unconstitutional.

Rogers v. State Board of Medical Examiners, 371 So.2d 1037 (Fla. App. 1979): chelation treatment held not a valid reason for revocation of doctor’s license.

City of Baxter Springs v. Bryant, 226 Kan. 383, 598 P.2d 1051, 1057 (1979): prohibition on dancing in disco found unconstitutional: “Healthful and harmless recreation cannot be prohibited by a municipal corporation.”

City of Junction City v. Mevis, 226 Kan. 526, 601 P.2d 1145 (1979): proscription on merely carrying gun in car beyond police power.

State v. Stewart, 40 N.C.App. 693, 253 S.E.2d 638 (1979): law preventing shining light off road after dark held beyond police power.

Horsemen’s Benevolent & Protective Assoc. v. Div. of Pari-Mutuel Wagering, 397 So.2d 692, 695 (Fla. 1981):

“This statute effectually requires payment of money to a private association to do with as it chooses. This is an unlawful exercise of the police power.”
Daniel v. Dept. of Trans. & Devel., 396 So.2d 967 (La.App. 1981): cutting down historic tree.

Ailes v. Decatur County Area Planning Comm., 448 N.E.2d 1057 (Ind. 1983): prohibition on junkyards amounted to taking and was  beyond police power.

Louis Finocchiaro, Inc. v. Neb. Liquor Control Comm., 217 Neb. 487, 351 N.W.2d 701 (1984): prohibition on giving volume discounts for liquor beyond police power.

State v. Armstead, 103 Miss. 790, 799, 60 So. 778 (1912):

“The rights aforesaid, being fundamental, are constitutional rights, and while the exercise thereof may be reasonably regulated by legislative act in pursuance of the police power of the State, and although those powers are broad, they do not rise above those privileges which are imbedded in the constitutional structure. The police power cannot justify the enactment of any law which amounts to an arbitrary and unwarranted interference with, or unreasonable restriction on, those rights of the citizen which are fundamental.”

State v. Rathbone, 100 P.2d 86, 88 (Mont. 1940): Rathbone killed an elk on his ranch out of season; he argued the killing was necessary to defend his property, and that his inalienable right to acquire, possess, and protect property justified the killing because the elk was causing damage to his ranch.

Illinois cases:

Haller Sign Works v. Physical Culture Training School, 249 Ill. 436, 94 N.E. 920, 922 (1911)(city ordinance which prevented the construction and erection of advertising signs within 500 feet of any park or boulevard held void); Condon v. Village of Forest Park, 278 Ill. 218, 115 N.E. 825 (1917); People v. Weiner, 271 Ill. 74, 110 N.E. 870 (1915); People v. Chicago, M. & St. P. Ry. Co., 306 Ill. 486, 138 N.E. 155 (1923); Heimgaertner v. Benjamin Electric Manuf. Co., 6 Ill.2d 152, 128 N.E.2d 691 (1955); State Bank & Trust Co. v. Village of Wilmette, 358 Ill. 311, 193 N.E. 131, 133 (1934); East Side Levee & Sanitary Dist. v. East St. Louis & C. Ry., 279 Ill. 123, 116 N.E. 720, 723 (1917); Schiller Piano Co. v. Ill. Northern Utilities Co., 288 Ill. 580, 123 N.E. 631 (1919) (An act which has no tendency to affect or endanger the public in any of those particulars and which is entirely innocent in character is not within the police power”); Town of Cortland v. Larson, 273 Ill. 602, 113 N.E. 51 (1916); City of Zion v. Behrens, 262 Ill. 510, 104 N.E. 836 (1914).

People v. Brown, 95 N.E.2d 888 (Ill. 1950): a person’s trade or business is property.

SCHOOLING:

Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925): State law requiring children to be sent to public schools held unconstitutional:

“The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”
SPEECH, PRESS AND RELIGION:

Martin v. City of Struthers, 319 U.S. 141 (1943): freedom of speech and press includes right to pass out flyers.

Murdock v. Comm. of Pennsylvania, 319 U.S. 105 (1943): license tax to sell religious tracts and books held unconstitutional.

People v. Swartzentruber, 170 Mich.App. 682, 429 N.W.2d 225 (1988), and State v. Miller, 196 Wis.2d 238, 538 N.W.2d 573 (1995): reflector law requiring slow moving vehicles to display symbol; held violative of 1st Amendment.

CANNOT LICENSE CERTAIN OCCUPATIONS:

A. Horseshoers:

Bessette v. People, 193 Ill. 334, 62 N.E. 215 (1901)

People v. Beattie, 89 N.Y.S. 193 (1904); see also Application of Jacobs, 98 N.Y. 98 (1885).

In re Aubrey, 36 Wash. 308, 78 P. 900 (1904)

B. Photographers:

Territory v. Kraft, 33 Haw. 397 (1935)

Wright v. Wiles, 173 Tenn. 334, 117 S.W.2d 736 (1938)

Bramley v. State, 187 Ga. 826, 2 S.E.2d 647 (1939)

Buehman v. Bechtel, 57 Ariz. 363, 114 P.2d 227 (1941)

State v. Cromwell, 72 N.D. 565, 9 N.W.2d 914 (1943)

Sullivan v. DeCerb, 156 Fla. 496, 23 So.2d 571 (1945)

Moore v. Sulton, 185 Va. 481, 39 S.E.2d 348 (1946)

State v. Ballance, 229 N.C. 764, 51 S.E.2d 731 (1949)

Abdoo v. Denver, 156 Colo. 127, 397 P.2d 222 (1964)

C. Miscellaneous:

Jackson v. State, 55 Tex. Cr. R. 557 (1908): barbers can’t be licensed.

Gray v. Omaha, 80 Neb. 526, 114 N.W. 600 (1908): can’t license sidewalk builder.

Vicksburg v. Mullane, 106 Miss. 199, 63 So. 412 (1913): privilege tax does not apply to plumber.

Sampson v. Sheridan, 25 Wyo. 347, 170 P. 1 (1918): can’t license masons.

Howard v. Lebby, 197 Ky. 324, 246 S.W. 828 (1923): can’t license house painters; see also Priddy v. City of Tulsa, 882 P.2d 81 (Okl.Cr. 1994): unconst. to license sign painters; State v. Wiggenjost, 130 Neb. 450, 265 N.W. 422 (1936).

Frazer v. Shelton, 320 Ill. 253, 150 N.E. 696 (1926): can’t license public accountants.

Rawles v. Jenkins, 212 Ky. 287, 279 S.W. 350 (1926): can’t license real estate agents.

Doe v. Jones, 327 Ill. 387, 158 N.E. 703 (1927): cant license private surveyors.

Dasch v. Jackson, 170 Md. 251, 183 A. 534 (1936): paper hangers cant be licensed.

S.S. Kresge Co. v. Couzens, 290 Mich. 185, 287 N.W. 427 (1939): cant license florists.

State v. Harris, 216 N.C. 746, 6 S.E.2d 854 (1940): can't license dry cleaners.

Palmer v. Smith, 229 N.C. 612, 51 S.E.2d 8 (1948): cant control opticians.

Livesay v. Tennessee Bd. of Exam. in Watchmaking, 322 S.W. 2d 209 (1959): watch repairs.