join the enforcement of the penalties accrued pendente lite, provided it finds that the plaintiff had reasonable grounds to contest the rates as confiscatory.

The statute involved in these two cases was one defining as a public business subject to price fixing any business which by reason of its nature, extent, or the exercise of a virtual monopoly therein, is such that the public must use the same or its services. One complainant ran a laundry and the other was ginning cotton, having combined with competitors to raise prices. The laundry concern had urged before the commission that it was not a monopoly within the section of the statute in question and that the section was void. This seems to be an assertion of an immunity from price fixing; but on the most interesting question whether a laundry can be subjected to rate regulation like an elevator or a railroad, the Supreme Court says not a word. It declared, however, that the commission might proceed to investigate the plaintiff's rates and practices, “so long as its findings and conclusions are subjected to the review of the District Court herein." It can hardly be credited that all the members of the court would consent to the implication that the mere fact that the public must use a laundry makes its charges constitutionally subject to regulation by a commission. Yet the handling of the case in the opinion of Mr. Justice Brandeis is such that it would not be surprising if some of the judges later adduce it as a precedent in favor of the subjection to price-fixing of any business so situated that for a time it is relieved from the competition that keeps its charges reasonably close to what would be enough to attract competitors into the enterprise if the way were open to them.59

Direct or indirect regulations of commercial intercourse were approved in four cases. In Munday v. Wisconsin Trust Co. the power to impose conditions on the doing of business by foreign corporations not engaged in interstate commerce was affirmed and applied to a provision invalidating deeds of land within the state to foreign corporations not admitted to do business. The fact that the deed was executed and delivered in another state was said to make no difference, since the court had long ago declared that "the title

"For discussions of the extension of price fixing see references in note 44, supra, and notes in 33 HARV. L. REV. 838, 861.

62

to land can be acquired and lost only in the manner prescribed by the law of the place where such land is situate." Dunbar v. City of New York found no offence against due process in giving the city a lien on the premises to which water is furnished, even though the meter is installed at the request of the tenant rather than of the owner. A statute forbidding the personal solicitation of employment to "prosecute, defend, present or collect" claims was sustained in McCloskey v. Tobin. Mr. Justice Brandeis pointed out that prohibition of solicitation did not prohibit the business but merely regulated it. He added that "the evil against which the regulation is directed is one from which the English law has long sought to protect the community through proceedings for barratry and champerty" and that "regulation which aims to bring the conduct of the business into harmony with ethical practice of the legal profession, to which it is necessarily related, is obviously reasonable."

The remaining case belongs under the head of industrial relations. This is New York Central R. Co. v. Bianco which sustained the provision in the New York Workmen's Compensation Law allowing the commission to award damages for permanent facial disfigurement. Mr. Justice Pitney thought it most likely that any serious disfigurement would impair earning power, irrespective of its effect on mere capacity to work. But the absence of any finding of such impairment in the case before him moved him to declare that impairment of earning capacity is not essential to the constitutionality of an award. He added that the state was at entire liberty to choose whether the award for disfigurement should be paid in a single sum or in instalments and whether it should be made in combination with the compensation for inability to work computed with reference to loss of earning power or independently thereof. Under

252 U. S. 107, 40 Sup. Ct. 306 (1920). See 6 VA. L. REG. n. s. 213, and 29 YALE L. J. 680.

"See James W. Simonton, "The Validity of Special Legislation Granting Admission to a Profession", 26 W. VA. L. Q. 102. The attorney's lien law of Pennsylvania is considered in 68 U. PA. L. REV. 277; a discriminatory exemption law, in 19 COLUM. L. REV. 502; a law forbidding the refilling of marked bottles, in 18 MICH. L. REV. 546.

04

250 U. S. 596, 40 Sup. Ct. 45 (1919). See 33 HARV. L. Rev. 473, 18 MICH, L. REV. 235, and 29 YALE L. J. 581.

the statute the award might be such sum as the commission deems proper, up to $3,500. Mr. Justice McReynolds dissented but wrote no opinion. His dissent is doubtless dependent on the fact that the statute imposes liability on the employer irrespective of negligence, as there could be no question about damages for such injuries when the person mulcted is at fault.65

This is an unusually small grist of police power cases for the Supreme Court to grind out in a term. Normally it considers more police power questions on a wider variety of subjects. It may be useful to list those subjects, if only to have pegs on which to hang footnotes to discussions in law reviews on decisions in other courts. One is the regulation of "rights of action," but this is more conveniently dealt with in a later section on Jurisdiction and Procedure of Courts. Another is "occupations and professions" under which McCloskey v. Tobins might have been put. A third is "physical conditions" which might embrace a number of the cases put under the head of public utilities. For the rest we have "food and drink,"

1968

The Arizona Workmen's Compensation Law, which was declared constitutional in Arizona Copper Co. v. Hammer, (Arizona Employers' Liability Cases), 250 U. S. 400, 39 Sup. Ct. 553 (1919), is considered in 20 COLUM. L. REV. 89, 33 HARV. L. REV. 86, 18 MICH. L. REV. 316, and 29 YALE L. J. 225. See 68 U. PA. L. Rev. 363 for a note on a Rhode Island case declaring unconstitutional a statute requiring theatre proprietors to employ a fire guard approved by fire commissioners at a compensation provided in the statute. "Note 62, supra.

"See O. L. Waller, "Right of State to Regulate the Distribution of Water Rights", 90 CENT. L. J. 97. See 20 COLUM. L. REV. 350 for discussion of a case holding invalid an ordinance confining care of cemetery lots to superintendent. See 4 MINN. L. REV. 540 for note on case declaring unconstitutional an ordinance forbidding the erection of a public garage without the consent of adjoining landowners. A case holding a public garage to be a nuisance is discussed in 18 MICH. L. REV. 234, and a similar condemnation of a morgue is treated in 33 Harv. L. Rev. 613.

"See Minor Bronaugh, “Limiting or Prohibiting the Possession of Intoxicating Liquors for Personal Use", 23 LAW NOTES 67, and Lindsay Rogers, "Life, Liberty, and Liquor': A Note on the Police Power", 6 Va. L. Rev. 156. Barbour v. Georgia, 249 U. S. 454, 39 Sup. Ct. 316 (1919), sustaining a statute prohibiting possession of liquor acquired after its enactment is com

"social and moral interests," and "methods of enforcement.""" Any classification of police power questions is necessarily somewhat arbitrary, but the law of the police power as a whole is so amorphous that even a poor way of classifying is better than none."1

V. EMINENT DOMAIN

In four of the cases already considered there was complaint that the unwelcome interferences were takings which required compensation. In none of them did the government profess to be exercising the power of eminent domain. In Hamilton v. Kentucky Distilleries & Warehouse Co.2 which sustained the War Prohibition Act of November 21, 1918, Mr. Justice Brandeis said that "there was no appropriation of the liquor for public purposes." He pointed out that it had never been necessary to decide whether an absolute prohibition of the sale of liquor acquired before the enactment of the prohibitory law is proper and that the question did not arise in the case at bar since the law did not become effective until over seven months after it was passed. The fact that liquor could not be advantageously sold till well ripened or aged was called a "resulting inconvenience to the owner attributable to the inherent qualities of the property itself," which "cannot be regarded as a taking of property in the constitutional sense." The point came up again in Ruppert v. Caffey" which sustained the Volstead Act. The plaintiff contended that "even if immediate prohibition of the sale of its non

See 33 HARV. L. Rev. 108 for discussion of a state anti-loafing law; 4 MINN. L. REV. 449 on prohibiting foreign languages in public schools; 33 HARV. L. REV. 108 on denying to aliens privilege of running pool rooms; 33 HARV. L. Rev. 110 on state law against inciting hostility to the United States; 18 MICH. L. REV. 796 on prohibiting display of flag of organization hostile to our form of government; and 29 YALE L. J. 936 on protection of the United States flag from desecration.

"See 5 Iowa L. BUIL. 63 for note on power of health board to detain persons afflicted with venereal disease, and 6 VA. L. REV. 583 for discussion of forfeiture of property of innocent persons used in violation of law.

"For a general article on police power see Thomas Reed Powell, "The Police Power in American Constitutional Law", I JOURN. COMP. LEG. AND INT. LAW. (part 3) 160.

"251 U. S. 146, 40 Sup. Ct. 106 (1919), 19 MICH. L. REV. 8, note 11.

13

251 U. S. 264, 40 Sup. Ct 141 (1920), 19 MICH. L. REV. 9, note 12.

intoxicating beer is within the war power, this can be legally effected, only provided compensation is made." Mr. Justice Brandeis called attention to the fact that in one of the earliest cases one of the judgments affirmed was "for violation of the act by selling beer acquired before its enactment....and that it was assumed without discussion that the same rule applied to the brewery and its product." He then continued:

"But we are not required to determine here the limits in this respect of the police power of the states; nor whether the principle is applicable here under which the federal government has been declared to be free from liability to an owner, 'for private property injured or destroyed during war, by the operations of the armies in the field, or by measures necessary for their safety and efficiency'...; in analogy to that by which states are exempt from liability for the demolition of a house in the path of a conflagration...; or for garbage of value taken...; or for unwholesome food of value destroyed ...for the preservation of the public health. Here as in Hamilton v. Kentucky Distilleries & Warehouse Co., supra, there was no appropriation of private property, but merely a lessening of value due to a permissible restriction imposed upon its use."

This is plainly a stretch of the Kentucky Distilleries case, since the Volstead Act became effective on its passage. There is nothing in the dissenting opinion in the Ruppert case indicating specifically that the objectors would have been mollified if the Volstead Act had provided compensation, though Mr. Justice McReynolds refers to the Fifth Amendment and the "well settled rights of individuals in harmless property."

In Board of Public Utility Commissioners v. Ynchausti & Co. which sustained a requirement of free carriage of the mails from vessels engaged in the Philippine coasting trade, the Chief Justice said that "it is impossible to conceive how either the guaranty by the Bill of Rights of due process or its prohibition against the taking of private property for public use without compensation can have the slightest application to the case if the Philippine government possess