The sun. [volume] (New York [N.Y.]) 1833-1916, 1897-04-11

Amendment has rarely been Invoked or discussed
during our national existence OF over q century,
gross seldom has legislated 80 as to come In con-
tict with or to invade individual rights. Such
police or taxing power, however. Is being. con-
stantly challenged, and at every term of the
cases arising under the Fourteenth Amendment.
There Is q great difference between the CONNER
cial power, vested In Congress and the public
power retained by the States. The distinction
difficult to explain, but tie courts constantly
This historic. term, "due process Of law or It's
equivalent, the law OF the land. under which
S SSGn race sSis 5IS6rSSuF slom many unDt Troubled oS C%Gnt n \ has has
bodies the foremost Of our liberties-regarded
even In England as a constitutional right--is not
privation OF the possession OF lands or chattels;
use ones faculties ssS in ali al lawful Ways siDV to i've
and work where one will, to pursue any lawful
Brewer, "among tho inalienable rights OF tho
citizen Is that OF the liberty Of contract" AZ
is not necessary, at this day, to ontor. into any
argument to prove that the clause in the bill OF
tights that no person shall be deprived OF
oss OF law is to have a large and liberal
Interpretation, and that the fundamental ,prin-
these these Words ss'G protests s ! mot only 'f lie, liberty,
and property. in q TECHNICAL sense. against
unlhW1ul lhVhSlOn u ii pONCTnIltIl,l III IL
~exertion of governmental power in any OF it's
departments, but. also protects every essential
liberty to adopt and follow a lawful Industrial
or commercial pursuit Is certainly "infringed
upon, limited. perhaps weakened or DESTROYED
ders it criminal for individuals or corporations
to pursue legitimate business methods or to
make reasonable contracts for the protection of
In New York. the principles Of constitutional
law, which guarantee freedom of contract, have
bppn remarkably rACO0niZel and enforced. md
the true doctrine declared In opinions that leave
little to be added. The Jacobs case in 1888, ar
gued by Mr.. Evarts, resulted In n decision de-
claring void the act prohibiting the manufacture
Of cigars. Sc, In a tenement house, on the ground
without due process flaw. The opinion Of Judge
Earl in this case Is commonly regarded as the
ii IN the rspd preseh Il WSs f 10 love saP dsrin 20 the n ' same
year by the Marx case, in which the oleomar-
garine law Of 1854 was held uGconstitntional.
the opinion being delivered by Judge Rapallo.
preeedents, and said that measures Of this
Three years later, in the ellison case. Mr, JUS
tice Peckham delivered the unanimous opinion
Of our Court of Appeals holding un,eonstitu.
tional a statute prohibiting what are known as
gift sales" and said:
1t seems to me that to uphold the act in question
from buying more food than they may want. and
hence tends TO prevent wastefuiness or lack OF proper
and erroneoIs assumption and is to take a long step
backward and TO favor that class OF paternal legtsls.
with the proper liberty OF the citizen and violates the
constitutional provision rererred 10. Equally In,
assumption that the law is valid as a law regulating
Il irf Sss 1 no ts sGr e = Pt to- prevsn f' e ,riaa S ahd i Hs'e essnin:
tion Of trade Is a mere arbitrary. unreasonable, and
his pursuit. OF a livelihood by engaging in q perfectly
valid business. conducted in a perfectly proper man
ner.
nois, Michigan, Missouri. West Virginia, and
other States similar decisions may be found, all
the Trust act OF 1890 would be held unconstitu-
tonal as conflicting with the fourteenth amend.
on the part Of a State Legislature with reference
reasonable. It must. follow That similar ieeisia-
interstate Is EQUALLY void and for sub
stantially the same reasons.
In 1890, the rule Of the old common law In rela-
ton to the invalidity Of contracts In restraint of
p rae1e n Court 1een h sSai IN 1889, d %SiI,rsda' that hn' the thu,
rule originated under a condition of things and
i'm a s ssis, Of an sSS'iSs sS d dsfIsesd f fFSn , 1hos sps whIeh
cumstances OF the case and the nature OF
The doctrine that a contract in restraint
public Welfare or public policy was ' foSanndsd
upon two grounds. One was tho injury to the
public by being deprived Of the restricted party's
industry; the other was, the injury to tho party
himself by being precluded from pursuing hts
occupation, and thus being prevented from sup
OF these evils ensued. and II the contract was
founded on a valid consideration and afforded a
reasonable ground of benefit TO the other party,
It was free from legal objection and was elwais
enforced. This was the law as declared by the
Supreme TS r he6 Court :, in Two Lead Leading cases. tiors ., oon.
tracts between individuals in restraint OF trade
which involve no public interest whatever and
land and in almost every State to be lawful be-
cause reasonable and necessary and In no sense
injurious tns, sst to . the public Ssrs. we,1are ara Yet ma nSw; cT ey the
punishable by imprisonment and fine, II entered
into upon any matter relating to be-
Of II Congress- oas seen and 'a tks Spsrat aSas Of 'h the P trust
the transport al OF articles bet the States
and that there is little else for the act to take
e chisf justice f Fuller e. t seem net 70 al ha srso dscided i'f the
knight case; "coptraots to buy, sell. or sx.
several States. the Transportation and its in
strumentalities, and articles bought. sold or ex-
the States, or put In the way Of transit, may be
regulated, but this Is because they form part OF
The extreme danger OF intermeddling with
trade and industrial pursuits has been frequent
~ emphasized by Judges, statesmen. and writer's
cial intercourse and business methods are per-
petually varying. Undue innovations %interfer-
they profess to free Il from restraints. Sir VIII.
liam Erie, in his essay on tho Law Of Trades
Unions" speaking Of the right to contract freely
and of efforts to regulate restraints, OF trade.
said: IAN attempt to adjust them by statute
may succeed, II the authors and interpreters Of
the statute understand the principles of the
common law. and in some degree incorporate
OF the words Of a statute merely by q dictionary
leads often to unsatisfactory results. Even II
the statute IL well drawn. society soon pro-
crosses beyond 4. and the need Of the principles
OF the common law IL constantly renewed
The governmental power OF regulation has
been limited ana restricted in analogous cases.
Twenty years ago, during the Granger move
ment lanothor outburst OF the spirit OF social.
ISM. the Elevator case In tho Supreme Court
lMYnn vs.: Illinois, caused as great q sensation
decision. The Court decided that a state
Legislature could control the use Of the prop
crty and regulate the charges OF corporations
or individual engaged in any business clothed
II. Many then believed that the rule an:
nounced was subversiye of the rights OF
private property. Well-founded fears arose
that the decision would be followed by legisla:
tion ruinous TO many enterprises, destructive OF
all security Of Investment and coniscatory in its
effects. such legislation came, and vast dam
age resulted. 1t was aimed principally at rail