above ground to 14 feet, requiring a space of 4 feet between them and the ground, and forbidding them nearer than 6 feet to a building or the side of the lot, or nearer than 2 feet to each other or 15 feet to the street. The company appeared to have eliminated dangers from wind and fire, but Mr. Justice Holmes observed that such dangers "are or may be the least of the objections adverted to in the cases," and added: "Possibly one or two details, especially the requirement of conformity to the building line, have aesthetic considerations in view more obviously than anything else. But as the main burdens imposed stand on other ground, we should not be prepared to deny the validity of relatively trifling requirements that did not look solely to the satisfaction of rudimentary wants that alone we generally recognize as necessary." The Thomas Cusack case was referred to as standing for the power to prohibit billboards altogether in residence districts, so that they seem to be doomed so far as the federal Constitution is concerned. Of the fee charged by St. Louis for permits to erect the authorized billboards, the court remarked that "if the city desired to discourage billboards by a high tax we know of nothing to hinder, even apart from the right to prohibit them altogether. A statute of Georgia prohibiting the possession of more than one gallon of intoxicating liquor came before the court in Barbour v. Georgia.56 The state court had assumed that the liquor was acquired between the enactment of the statute and the time when its prohibition became effective, and the Supreme Court held that property thus acquired is taken with full notice of its infirmity and that its mere possession may by lapse of time become a crime. One can no more stay the exercise of the state's police power by acquiring property under such circumstances than by making a contract. An objection that the law could not be applied to liquor acquired before its enactment was found not to be properly raised, and the court declared that on that issue no opinion was expressed. COMMERCIAL INTERCOURSE It may be suspected that the votes of farmers had something to do with two statutes imposing restrictions on the sale of food which successfully ran the gauntlet of the due-process clause. That sus "Thomas Cusack Co. v. Chicago, (1917) 242 U. S. 526, 12 American Political Science Review 442. 56 (1919) 249 U. S. 454, 39 Sup. Ct. 316. See 17 Michigan Law Review 709 and 28 Yale Law Journal 836. tained in Hebe Co. v. Shaw57 forbade the sale of any condensed milk not made from unadulterated full cream milk. The minority consisting of Justices Day, Van Devanter and Brandeis thought that the statute did not apply to the plaintiff's product which was labeled "Hebe; A Compound of Evaporated Skimmed Milk and Vegetable Fat; Contains 6% Vegetable Fat, 24% Solids; For Coffee and Cereals, For Baking and Cooking." The majority, however, took the view that condensed skimmed milk was forbidden in every form, however labeled and whatever ingredients were added. It seemed to be conceded that the product was not unwholesome, but it was thought that fraudulent palming off was not necessarily prevented because the label told the truth, since the consumer in many instances never sees the label. On the constitutional question Mr. Justice Holmes observed: "The purposes to secure a certain minimum of nutritive elements and to prevent fraud may be carried out in this way even though condensed skimmed milk and Hebe should both be admitted to be wholesome. The power of the legislature 'is not to be denied simply because some innocent articles or transactions may be found within the proscribed class.' The answer to the inquiry is that the provisions are of a kind familiar to legislation and often sustained and that it is impossible for this Court to say that they might not be believed to be necessary in order to accomplish the desired ends.” The Kansas statute sustained in Corn Products Refining Co. v. Eddy58 was less drastic. The plaintiff was required to state the ingredients of a compound which in full compliance with the federal law it had labeled "Mary Jane. A Table Syrup Prepared from Corn Syrup, Molasses and Pure Country Sorghum. Contains Sulphur Dioxide." To the complaint that the disclosure of the ingredients and their proportions in a wholesome product made under a secret formula was a denial of due process, Mr. Justice Pitney answered: "Evidently the purpose of the requirement is to secure freedom from adulteration and misbranding; the mischief of misbranding being that purchasers may be misled with respect to the wholesomeness or food value of the compound. And it is too plain for argument that a manufacturer or vendor has no constitutional right to sell goods without giving to the purchaser fair information of what it is that is being sold. The right of a manufacturer to maintain secrecy as to his $7 (1919) 248 U. S. 297, 39 Sup. Ct. 125, footnote 28, supra. See 28 Yale Law Journal 512. compounds and processes must be held subject to the right of the state, in the exercise of its police power and in promotion of fair dealing, to require that the nature of the product be fairly set forth." The prevention of fraud and the facilitation of commercial transactions were the justifications adduced by Mr. Justice Brandeis in Merchants' Exchange v. Missouri59 for a statute which restricted the issuing of weight certificates for grain to duly authorized and bonded state weighers. The limitation of the provision to grain and hay was held not to be an arbitrary discrimination against dealers in those articles. Payne v. Kansas60 found no constitutional flaw in a Kansas statute which forbade the sale of farm produce on commission without an annual license, to be procured from the State Board of Agriculture upon a proper showing as to character, responsibility, etc., and a bond conditioned to make honest accounting. The issue was thought to be so simple that it was disposed of in a memorandum opinion. Two statutes regulating insurance agents and brokers met with unanimous approval. The South Carolina law complained of in La Tourette v. McMaster defined an insurance broker "to be such person as shall be licensed by the insurance commissioner to represent citizens" in securing policies. No one could receive a license unless he was a resident of the state and had been a licensed insurance agent of the state for at least two years. The alleged impairment of the privileges and immunities of citizens of the several states was answered by pointing out that the requirement of residence was not identical with that of citizenship and that there might be reason to think the business would be best conducted by residents. The business of insurance was declared to be clothed with a public interest, and it was said to follow that "those engaged in it or who bring it about are affected with the same interest and subject to regulation as it is." The fidelity of an insurance broker to both insured and insurer was said to be a proper concern of the state and the means devised to secure it were thought appropriate. The statute sustained in American Fire Insurance Co. v. King Lumber & Mfg. Co.62 ordained that the person who solicits insurance and procures applications shall be deemed the agent of the insurer notwithstanding anything in the policy to the contrary. The statute ** (1919) 248 U. S. 365, 39 Sup. Ct. 114, footnote 30, supra. 0 (1918) 248 U. S. 112, 39 Sup. Ct. 32. (1919) 248 U. S. 465, 39 Sup. Ct. 160. See 28 Yale Law Journal 601. was on the books when the business involved in the suit was transacted, and Mr. Justice McKenna reminded the company of this, so that it is not certain that the statute would be applied retroactively. The company's "attempt at rejection" was said to suggest that the purpose of the statute "was to preclude confusion and dispute as to the relation of the broker to the parties respectively, and to preclude an underwriter, after using an agency, from denying responsibility." INDUSTRIAL RELATIONS Dominion Hotel v. Arizona 63 sustained the conviction of a hotel keeper for not confining the eight-hour working period of an employee to a period of twelve hours and rejected his complaint that he was denied the equal protection of the laws by the provision in the statute exempting from the twelve-hour limit railroad restaurants and eating houses on railroad rights of way operated by or under contract with the railroad company. After remarking that "the Fourteenth Amendment is not a pedagogical requirement of the impracticable," Mr. Justice Holmes added that the state "may do what it can to prevent what is deemed an evil and stop short of those cases in which the harm to the few concerned is thought less important than the harm to the public that would ensue if the rule laid down were mathematically exact." So long as the theory of the distinction adopted by the state is justifiable, "the fact that some cases, including the plaintiff's, are very near to the line makes it none the worse.. That is the inevitable result of drawing a line where the distinctions are distinctions of degree; and the constant business of the law is to draw such lines." In Middleton v. Texas Power and Light Co.64 an injured employee who had been denied recovery at common law on the ground that his sole remedy was under the workmen's compensation act complained under the equal-protection and the due-process clauses, but without success. The statute made it optional with the employer to subscribe to the state fund, required subscribing employers to notify their employees, and confined the remedy of such employees to the graded compensation stipulated by the act. To the lament that the employer had a choice whether to come under the act while the employee had not, Mr. Justice Pitney answered that the former accepts by becoming a subscriber while the latter accepts by remaining in the employer's ** (1919) 249 U. S. 265, 39 Sup. Ct. 273. service and that each has the opportunity to choose. The loss by the employee of the right to contract with a subscribing employer outside the terms of the act was justified by saying that no one has a vested right to have the rules of law remain unchanged for his benefit, and that compensation laws compulsory on both employer and employee had been previously sustained. The employee complained also because he was discriminated against in favor of other employees who retained their common-law remedies, but all the distinctions were held reasonable. These included the exemption or exclusion of farm laborers, domestic servants, those who worked for a nonsubscribing employer or for one having less than five employees, cotton-gin laborers and railroad employees. The justification for the latter distinction was said to be the existence of the federal Employers' Liability Law and the difficulty of determining in particular instances whether an employee was engaged in interstate commerce at the time of his injury and therefore excluded from the operation of a state compensation law. It was the employer who objected to the Arizona employers' liability law, sustained in Arizona Employers' Liability Cases65 by a vote of five to four. This differed from the usual compensation law in that the employee, instead of getting a statutory compensation from a commission, had the damages for his injury assessed by a jury. The employer insisted that it was unconstitutional to impose on him liability without fault unless the amount that could be recovered was restricted. This view was shared by Justices McKenna and McReynolds in their separate dissenting opinions, in which the Chief Justice and Mr. Justice Van Devanter concurred. But Mr. Justice Pitney for the majority pointed out it was not true that the responsibility of the employer was unlimited except as it is true of every action for compensatory damages tried before a jury. The objection that juries are prone to render extravagant verdicts was met by referring to the corrective in the authority of the court to set aside an exorbitant verdict and by saying that it was a contradiction in terms to posit a denial of due process in the submission of a controversy between litigants to the established courts, "there to be tried according to long established modes and with a constitutional jury to determine the issues of fact and assess compensatory damages. ." Mr. Justice Holmes in a separate concurring opinion, in which Justices Brandeis and Clarke joined, pointed out that other statutes had put on the employer the risk of what the employee might do and had been 65 (1919) 250 U. S. 400, 39 Sup. Ct. 553. |