The power of a state legislature to make a contract of such a
character that, under the provisions of the Constitution, it cannot
be modified or abrogated does not extend to subjects affecting
public health or public morals so as to limit the future exercise
of legislative power on those subjects to the prejudice of the
general welfare.
In 1879, the Legislature of Louisiana granted the appellee
exclusive privileges for stocklanding and slaughterhouses at New
Orleans for twenty-five years, which were sustained by this Court
in the
Slaughterhouse
Cases, 16 Wall. 36. In 1881, under a provision of
the state constitution of 1874, the municipal authorities granted
privileges for slaughterhouses and stocklanding at New Orleans to
the appellants. The appellee as plaintiff below filed its bill in
the circuit court to restrain the appellants from exercising the
privileges thus conferred. A preliminary injunction was granted
which, on hearing, was made perpetual. From this decree the
defendants below appealed. The legislation and other facts bearing
upon the issues are stated in the opinion of the court.
MR. JUSTICE MILLER delivered the opinion of the Court.
This is an appeal from the Circuit Court for the Eastern
District of Louisiana.
The appellee brought a suit in the circuit court to obtain an
injunction against the appellant forbidding the latter from
exercising
Page 111 U. S. 747
the business of butchering, or receiving and landing livestock
intended for butchering, within certain limits in the parishes of
Orleans, Jefferson, and St. Bernard, and obtained such injunction
by a final decree in that court.
The ground on which this suit was brought and sustained is that
the plaintiffs had the exclusive right to have all such stock
landed at their stocklandingplace, and butchered at their
slaughterhouse, by virtue of an Act of the General Assembly of
Louisiana approved March 8, 1869, entitled
"An act to protect the health of the City of New Orleans, to
locate the stocklanding and slaughterhouses, and to incorporate the
Crescent City Livestock Landing and Slaughter house Company."
An examination of that statute, especially of its fourth and
fifth sections, leaves no doubt that it did grant such an exclusive
right.
The fact that it did so, and that this was conceded, was the
basis of the contest in this Court in the
Slaughterhouse
Cases, 16 Wall. 36, in which the law was assailed
as a monopoly forbidden by the Thirteenth and Fourteenth Amendments
to the Constitution of the United States, and these amendments, as
well as the Fifteenth, came for the first time before this Court
for construction. The constitutional power of the state be enact
the statute was upheld by this Court. This power was placed by the
Court in that case expressly on the ground that it was the exercise
of the police power which had remained with the states in the
formation of the original Constitution of the United States and had
not been taken away by the amendments adopted since. Citing the
definition of this power from Chancellor Kent, it declares that the
statute in question came within it.
"Unwholesome trades, slaughterhouses, operations offensive to
the senses, the deposit of powder, the application of steam power
to propel cars, the building with combustible materials, and the
burial of the dead, may all (he says) be interdicted by law in the
midst of dense masses of population on the general and rational
principle that every person ought so to use his property as not to
injure his neighbors, and that private interests must be made
subservient to the general interest of the community.
Page 111 U. S. 748
2 Kent Commentaries 340; 16 Wall.
83 U. S.
62. In this latter case it was added that"
"the regulation of the place and manner of conducting the
slaughtering of animals, and the business of butchering within a
city, and the inspection of the animals to be killed for meat, and
of the meat afterwards, are among the most necessary and frequent
exercises of this power."
But in the year 1879 the State of Louisiana adopted a new
Constitution, in which were the following articles:
"Article 248. The police juries of the several parishes, and the
constituted authorities of all incorporated municipalities of the
state, shall alone have the power of regulating the slaughtering of
cattle and other livestock within their respective limits,
provided, no monopoly or exclusive privilege shall exist in this
state, nor such business be restricted to the land or houses of any
individual or corporation, provided, the ordinances designating
places for slaughtering shall obtain the concurrent approval of the
board of health or other sanitary organization."
"Article 258. . . . The monopoly features in the charter of any
corporation now existing in the state, save such as may be
contained in the charters of railroad companies, are hereby
abolished."
Under the authority of these articles of the Constitution the
municipal authorities of the City of New Orleans enacted ordinances
which opened to general competition the right to build
slaughterhouses, establish stocklandings, and engage in the
business of butchering in that city under regulations established
by those ordinances, but which were in utter disregard of the
monopoly granted to the Crescent City Company, and which in effect
repealed the exclusive grant made to that company by the act of
1869.
The appellant here, the Butchers' Union Slaughter house Company,
availing themselves of this repeal, entered upon the business, or
were about to do so, by establishing their slaughterhouse and
stocklanding within the limits of the grant of the act of 1869 to
the Crescent City Company.
Both these corporations, organized under the laws of Louisiana
and doing business in that state, were citizens of the same
Page 111 U. S. 749
state, and could not, in respect of that citizenship, sue each
other in a court of the United States.
The Crescent City Company, however, on the allegation that these
constitutional provisions of 1879, and the subsequent ordinances of
the city, were a violation of their contract with the state under
the act of 1869, brought this suit in the circuit court as arising
under the Constitution of the United States, Article I, Section 10.
That court sustained the view of the plaintiff below, and held that
the act of 1869, and the acceptance of it by the Crescent City
Company, constituted a contract for the exclusive right mentioned
in it for twenty-five years; that it was within the power of the
Legislature of Louisiana to make that contract, and as the
constitutional provisions of 1879 and the subsequent ordinances of
the city impaired its obligation, they were to that extent
void.
No one can examine the provisions of the act of 1869, with the
knowledge that they were accepted by the Cresecent City Company,
and so far acted on that a very large amount of money was expended
in a vast slaughterhouse, and an equally extensive stockyard and
landingplace, and hesitate to pronounce that in form they have all
the elements of a contract on sufficient consideration.
It admits of as little doubt that the ordinance of the City of
New Orleans, under the new Constitution, impaired the supposed
obligation imposed by those provisions on the state, by taking away
the exclusive right of the company granted to it for twenty-five
years, which was to the company the most valuable thing supposed to
be secured to it by the statutory contract.
We do not think it necessary to spend time in demonstrating
either of these propositions. We do not believe they will be
controverted.
The appellant, however, insists that, so far as the act of 1869
partakes of the nature of an irrepealable contract, the legislature
exceeded its authority, and it had no power to tie the hands of the
legislature in the future from legislating on that subject without
being bound by the terms of the statute then enacted. This
proposition presents the real point in the case.
Page 111 U. S. 750
Let us see clearly what it is.
It does not deny the power of that legislature to create a
corporation, with power to do the business of landing livestock and
providing a place for slaughtering them in the city. It does not
deny the power to locate the place where this shall be done
exclusively.
It does not deny even the power to give an exclusive right, for
the time being, to particular persons or to a corporation to
provide this stocklanding and to establish this slaughterhouse. But
it does deny the power of that legislature to continue this right
so that no future legislature, nor even the same body, can repeal
or modify it, or grant similar privileges to others. It concedes
that such a law, so long as it remains on the statute book as the
latest expression of the legislative will, is a valid law, and must
be obeyed, which is all that was decided by this Court in the
Slaughterhouse Cases. But it asserts the right of the
legislature to repeal such a statute, or to make a new one
inconsistent with it, whenever, in the wisdom of such legislature,
it is for the good of the public it should be done.
Nor does this proposition contravene the established principle
that the legislature of a state may make contracts on many subjects
which will bind it, and will bind succeeding legislatures for the
time the contract has to run, so that its provisions can neither be
repealed nor its obligation impaired. The examples are numerous
where this has been done and the contract upheld.
The denial of this power in the present instance rests upon the
ground that the power of the legislature intended to be suspended
is one so indispensable to the public welfare that it cannot be
bargained away by contract. It is that well known but undefined
power called the police power. We have not found a better
definition of it for our present purpose than the extract from
Kent's Commentaries in the earlier part of this opinion. "The power
to regulate unwholesame trades, slaughterhouses, operations
offensive to the senses," there mentioned, point unmistakably to
the powers exercised by the act of 1869, and the ordinances of the
city under the Constitution of 1879. While we are not prepared to
say that the legislature can make
Page 111 U. S. 751
valid contracts on no subject embraced in the largest definition
of the police power, we think that, in regard to two subjects so
embraced, it cannot, by any contract, limit the exercise of those
powers to the prejudice of the general welfare. These are the
public health and public morals. The preservation of these is so
necessary to the best interests of social organization, that a wise
policy forbids the legislative body to divest itself of the power
to enact laws for the preservation of health and the repression of
crime.
It cannot be permitted that, when the constitution of a state,
the fundamental law of the land, has imposed upon its legislature
the duty of guarding, by suitable laws, the health of its citizens,
especially in crowded cities, and the protection of their person
and property by suppressing and preventing crime, that the power
which enables it to perform this duty can be sold, bargained away,
under any circumstances, as if it were a mere privilege which the
legislator could dispose of at his pleasure.
This principle has been asserted and repeated in this Court in
the last few years in no ambiguous terms.
The first time it seems to have been distinctly and clearly
presented was in the case of
Boyd v. Alabama, 94 U.
S. 646. That was a writ of error to the Supreme Court of
Alabama, brought by Boyd, who had been convicted in the courts of
that state of carrying on a lottery contrary to law. In his
defense, he relied upon a statute which authorized lotteries for a
specific purpose, under which he held a license. The repeal of this
statute, which made his license of no avail against the general law
forbidding lotteries, was asserted by his counsel to be void as
impairing the obligation of the contract, of which his license was
evidence, and the Supreme Court of Alabama had in a previous case
held it to be a contract.
In
Boyd's Case, however, that court held the law under
which his license was issued to be void, because the object of it
was not expressed in the title as required by the constitution of
the state. This Court followed that decision, and affirmed the
judgment on that ground.
But in the concluding sentences of the opinion by MR.
JUSTICE
Page 111 U. S. 752
FIELD, the Court, to repel the inference that the contract would
have been irrepealable if the statute had conformed to the special
requirement of the Constitution, said:
"We are not prepared to admit that it is competent for one
legislature, by any contract with an individual, to restrain the
power of a subsequent legislature to legislate for t e public
welfare, and to that end to suppress any and all practices tending
to corrupt the public morals,"
citing
Moore v. State, 48 Miss. 147, and
Metropolitan Board of Excise v. Barrie, 34 N.Y. 663.
This cautionary declaration received the unanimous concurrence
of the court, and a year later the principle became the foundation
of the decision in the case of
Beer Company v.
Massachusetts, 97 U. S. 25, 28
[argument of counsel -- omitted].
In that case, the plaintiff in error, the Boston Beer Company,
had been chartered in 1828 with a right to manufacture beer, which
this Court held to imply the right to sell it. Subsequent statutes
of a prohibitory character seemed to interfere with this right, and
the case was brought to this Court on the ground that they impaired
the obligation of the contract of the charter.
But the Court, speaking by JUSTICE BRADLEY, held that, on this
subject, the legislature of Massachusetts could make no
irrepealable contract. "Whatever differences of opinion," said the
Court,
"may exist as to the extent and boundaries of the police power,
and however difficult it may be to render a satisfactory definition
of it, there seems to be no doubt that it does extend to the
protection of the lives, health, and property of the citizens, and
to the preservation of good order and public morals. The
legislature cannot by any contract divest itself of the power to
provide for these objects. They belong emphatically to that class
of objects which demand the application of the maxim,
salus
populi suprema lex, and they are to be attained and provided
for by such appropriate means as the legislative discretion may
devise. That discretion can no more be bargained away than the
power itself."
In the still more recent case of
Stone v. Mississippi,
101 U. S. 814, the
whole subject is reviewed in the opinion delivered
Page 111 U. S. 753
by THE CHIEF JUSTICE. That also was a case of a chartered
lottery, whose charter was repealed by a constitution of the state
subsequently adopted. It came here for relief, relying on the
clause of the federal Constitution against impairing the obligation
of contracts.
"The question is therefore presented (says the opinion) whether,
in view of these facts, the legislature of a state can, by the
charter of a lottery company, defeat the will of the people
authoritatively expressed, in relation to the further continuance
of such business in their midst. We think it cannot. No legislature
can bargain away the public health or the public morals. The people
themselves cannot do it, much less their servants. The supervision
of both these subjects of governmental power is continuing in its
nature, and they are to be dealt with as the special exigencies of
the moment may require. government is organized with a view to
their preservation, and cannot divest itself of the power to
provide for them. For this purpose, the legislative discretion is
allowed, and the discretion cannot be parted with any more than the
power itself."
But the case of the
Fertilizing Company v. Hyde Park,
97 U. S. 659, is,
perhaps, more directly in point as regard the facts of the case,
while asserting the same principle. The Fertilizing Company was
chartered by the Illinois legislature for the purpose of
converting, by chemical processes, the dead animal matter of the
slaughterhouses of the City of Chicago into a fertilizing material.
Some ordinances of the village of Hyde Park, through which this
dead matter was carried to their chemical works, were supposed to
impair the rights of contract conferred by the charter. The opinion
cites the language of the court in
Beer Company v.
Massachusetts, supra, and numerous other cases, of the
exercise of the police power in protecting health and property, and
holds that the charter conferred no irrepealable right for the
fifty years of its duration to continue a practice injurious to the
public health.
These cases are cited, and their views adopted in the opinion of
the Supreme Court of Louisiana, in a suit between the same parties,
in regard to the same matter as the present
Page 111 U. S. 754
case, and which was brought to this Court by writ of error, and
dismissed before a hearing by the present appellee.
The result of these considerations is that the Constitution of
1879, and the ordinances of the City of New Orleans which are
complained of, are not void as impairing the obligation of
complainant's contract, and that
The decree of the circuit court must be reversed, and the
case remanded to that court, with directions to dismiss the
bill.
MR. JUSTICE FIELD, concurring.
I concur in the doctrine declared in the opinion of the Court,
that the legislature cannot, by contract with an individual or
corporation, restrain, diminish, or surrender its power to enact
laws for the preservation of the public health or the protection of
the public morals. This is a principle of vital importance, and its
habitual observance is essential to the wise and valid execution of
the trust committed to the legislature. But there are some
provisions in the act of Louisiana upon which the appellees rely
that have not been referred to, and which, from the interest
excited by the decision rendered when that act was before us in the
Slaughterhouse Cases, should be mentioned in connection
with the views now expressed.
83
U. S. 16 Wall. 36.
No one of the judges who then disagreed with the majority of the
Court denied that the states possessed the fullest power ever
claimed by the most earnest advocate of their reserved rights, to
prescribe regulations affecting the health, the good order, the
morals, the peace, and the safety of society within their
respective limits. When such regulations do not conflict with any
constitutional inhibition or natural right, their validity cannot
be successfully controverted. The general government was not formed
to interfere with or control them. No aid was required from any
external authority for their enforcement. It was only for matters
which concerned all the states, and which could not be efficiently
or advantageously managed by them separately, that a general and
common government was desired. And the recent amendments to the
Constitution have not changed nor diminished their previously
existing
Page 111 U. S. 755
power to legislate respecting the public health and public
morals. But though this power rests with them, it cannot be
admitted that, under the pretense of providing for the public
health or public morals, they can encroach upon rights which those
amendments declare shall not be impaired. The act of Louisiana
required that the slaughtering of cattle and the preparation of
animal food for market should be done outside of the limits of the
City of New Orleans. It was competent to make this requirement,
and, furthermore, to direct that the animals, before being
slaughtered, should be inspected, in order to determine whether
they were in a fit condition to be prepared for food. The
dissenting judges in the
Slaughterhouse Cases found no
fault with these provisions, but, on the contrary, approved of
them. Had the act been limited to them, there would have been no
dissent from the opinion of the majority. But it went a great way
beyond them. It created a corporation, and gave to it an exclusive
right for twenty-five years to keep, within an area of 1,145 square
miles, a place where alone animals intended for slaughter could be
landed and sheltered, and where alone they could be slaughtered and
their meat prepared for market. It is difficult to understand how
in a district embracing a population of a quarter of a million, any
conditions of health can require that the preparation of animal
food should be entrusted to a single corporation for twenty-five
years, or how in a district of such extent there can be only one
place in which animals can, with safety to the public health, be
sheltered and slaughtered. In the grant of these exclusive
privileges a monopoly of an ordinary employment and business was
created.
A monopoly is defined
"to be an institution or allowance from the sovereign power of
the state, by grant, commission, or otherwise, to any person or
corporation, for the sole buying, selling, making, working, or
using of anything whereby any person or persons, bodies politic or
corporate, are sought to be restrained of any freedom or liberty
they had before or hindered in their lawful trade,"
All grants of this kind are void at common law, because they
destroy the freedom of trade, discourage labor and industry,
restrain persons from getting an
Page 111 U. S. 756
honest livelihood and put it in the power of the grantees to
enhance the price of commodities. They are void because they
interfere with the liberty of the individual to pursue a lawful
trade or employment.
The oppressive nature of the principle upon which the monopoly
here was granted will more clearly appear if it be applied to other
vocations than that of keeping cattle and of preparing animal food
for market -- to the ordinary trades and callings of life -- to the
making of bread, the raising of vegetables, the manufacture of
shoes and hats, and other articles of daily use. The granting of an
exclusive right to engage in such vocations would be repudiated in
all communities as an invasion of common right. The state
undoubtedly may require many kinds of business to be carried on
beyond the thickly settled portions of a city, or even entirely
without its limits, especially when attendant odors or noises
affect the health or disturb the peace of the neighborhood; but the
exercise of this necessary power does not warrant granting to a
particular class or to a corporation a monopoly of the business
thus removed. It may be that for the health or safety of a city,
the manufacture of beer, or soap, or the smelting of ores, or the
casting of machinery should be carried on without its limits, yet
it would hardly be contended that the power thus to remove the
business beyond certain limits would authorize the granting of a
monopoly of it to anyone or more persons. And if not a monopoly in
business of this character, how can a monopoly for like reasons be
granted in the business of preparing animal food for market, or of
yarding and sheltering cattle intended for slaughter?
As in our intercourse with our fellow men, certain principles of
morality are assumed to exist without which society would be
impossible, so certain inherent rights lie at the foundation of all
action and upon a recognition of them alone can free institutions
be maintained. These inherent rights have never been more happily
expressed than in the declaration of independence, that new evangel
of liberty to the people: "We hold these truths to be self-evident"
-- that is, so plain that their truth is recognized upon their mere
statement -- "that all men are
Page 111 U. S. 757
endowed" -- not by edicts of emperors, or decrees of Parliament,
or acts of Congress, but "by their Creator with certain inalienable
rights" -- that is, rights which cannot be bartered away, or given
away, or taken away, except in punishment of crime -- "and that
among these are life, liberty, and the pursuit of happiness, and to
secure these" -- not grant them, but secure them -- "governments
are instituted among men, deriving their just powers from the
consent of the governed."
Among these inalienable rights, as proclaimed in that great
document, is the right of men to pursue their happiness, by which
is meant the right to pursue any lawful business or vocation, in
any manner not inconsistent with the equal rights of others, which
may increase their prosperity or develop their faculties, so as to
give to them their highest enjoyment.
The common business and callings of life, the ordinary trades
and pursuits, which are innocuous in themselves, and have been
followed in all communities from time immemorial, must therefore be
free in this country to all alike upon the same conditions. The
right to pursue them, without let or hindrance, except that which
is applied to all persons of the same age, sex, and condition, is a
distinguishing privilege of citizens of the United States, and an
essential element of that freedom which they claim as their
birthright.
It has been well said that
"the property which every man has in his own labor, as it is the
original foundation of all other property, so it is the most sacred
and inviolable. The patrimony of the poor man lies in the strength
and dexterity of his own hands, and to hinder his employing this
strength and dexterity in what manner he thinks proper, without
injury to his neighbor, is a plain violation of this most sacred
property. It is a manifest encroachment upon the just liberty both
of the workman and of those who might be disposed to employ him. As
it hinders the one from working at what he thinks proper, so it
hinders the others from employing whom they think proper."
Smith, Wealth of Nations, Bk. I, c. 10.
In this country, it has seldom been held, and never in so odious
a form as is here claimed, that an entire trade and business
Page 111 U. S. 758
could be taken from citizens and vested in a single corporation.
Such legislation has been regarded everywhere else as inconsistent
with civil liberty. That exists only where every individual has the
power to pursue his own happiness according to his own views,
unrestrained except by equal, just, and impartial laws. The act of
Louisiana compelled more than a thousand persons to abandon their
regular business, and to surrender it to a corporation to which was
given an exclusive right to pursue it for twenty-five years. What
was lawful to these thousand persons the day before the law took
effect was unlawful the day afterwards. With what intense
indignation would a law be regarded that should, in like manner,
turn over the common trades of the community to a single
corporation. I cannot believe that what is termed in the
declaration of independence a God-given and an inalienable right
can be thus ruthlessly taken from the citizen, or that there can be
any abridgment of that right except by regulations alike affecting
all persons of the same age, sex, and condition. It cannot be that
a state may limit to a specified number of its people the right to
practice law, the right to practice medicine, the right to preach
the gospel, the right to till the soil, or to pursue particular
business or trades, and thus parcel out to different parties the
various vocations and callings of life. The first section of the
Fourteenth Amendment was, among other things, designed to prevent
all discriminating legislation for the benefit of some to the
disparagement of others, and when rightly enforced as other
prohibitions upon the state, not by legislation of a penal nature,
but through the courts, no one will complain. The disfranchising
provisions of the third section naturally created great hostility
to the whole amendment. They were regarded by many wise and good
men as impolitic, harsh, and cruel, and the manner in which the
first section has been enforced by penal enactments against
legislators and governors has engendered widespread and earnest
hostility to it. Communities, like individuals, resent even favors
ungraciously bestowed. The appropriate mode of enforcing the
amendment is, in my judgment, that which has been applied to other
previously existing constitutional prohibitions, such as the one
against a state passing
Page 111 U. S. 759
a law impairing the obligation of contracts, or a bill of
attainder, or an
ex post facto law. The only provisions
deemed necessary to annul legislation of this kind have been such
as facilitated proceedings for that purpose in the courts; no other
can be appropriate against the action of a state. Thus enforced,
there would be little objection to the provisions of the first
section of the amendment. No one would object to the clause
forbidding a state to abridge the privileges and immunities of
citizen of the United States -- that is, to take away or impair
their fundamental rights. No one would object to the clause which
declares that no state shall deprive any person of life, liberty,
or property without due process of law, nor to the provision which
declares that no state shall deny to any person within its
jurisdiction the equal protection of the laws. If the first section
of the amendment is thus applied as a restriction against the
impairment of fundamental rights, it will not transfer to the
federal government the protection of all private rights, as is
sometimes supposed, any more than the inhibition against impairing
the obligation of contracts transfers to the federal government the
cognizance of all contracts. It does not limit the subjects upon
which the states can legislate. Upon every matter, in relation to
which previously to its adoption they could have acted, they may
still act. They can now, as then, legislate to promote health, good
order, and peace, to develop their resources, enlarge their
industries, and advance their prosperity. It only inhibits
discriminating and partial enactments -- favoring some to the
impairment of the rights of others. The principal, if not the sole,
purpose of its prohibitions is to prevent any arbitrary invasion by
state authority of the rights of person and property, and to secure
to everyone the right to pursue his happiness unrestrained, except
by just, equal, and impartial laws.
The first section of the amendment is stripped of all its
protective force, if its application be limited to the privileges
and immunities of citizens of the United States as distinguished
from citizens of the states, and thus its prohibition be extended
only to the abridgment or impairment of such rights, as the right
to come to the seat of government, to secure any claim
Page 111 U. S. 760
they may have upon that government, to transact any business
with it, to seek its protection, to share its offices, to engage in
administering its functions, to have free access to its seaports,
to demand its care and protection over life, liberty, and property
on the high seas, or within the jurisdiction of a foreign
government, the right to peaceably assemble and petition for
redress of grievances, and the right to use the navigable waters of
the United States -- which are specified in the opinion in the
Slaughterhouse Cases as the special rights of such
citizens. If thus limited, nothing was accomplished by adopting it.
The states could not previously have interfered with these
privileges and immunities, or any other privileges and immunities
which citizens enjoyed under the Constitution and laws of the
United States. Any attempted impairment of them could have been as
successfully resisted then as now. The Constitution and laws of the
United States were as much then as now the supreme law of the land,
which all officers of the state governments were then, as now,
bound to obey.
While, therefore, I fully concur in the decision of the court
that it was entirely competent for the state to annul the monopoly
features of the original act incorporating the plaintiff, I am of
opinion that the act, in creating the monopoly in an ordinary
employment and business, was to that extent against common right,
and void.
MR. JUSTICE BRADLEY (with whom agree HARLAN and WOODS, JJ.),
concurring.
I concur in the judgment of the Court in this case, reversing
the judgment of the circuit court. I think that the act of the
Legislature of Louisiana incorporating the Crescent City Livestock
Landing and Slaughterhouse Company, and granting to said company
for twenty-five years the exclusive right to erect and maintain
stocklandings and slaughterhouses within the limits of the Parishes
of Orleans, Jefferson, and St. Bernard was not a valid contract,
binding upon the State of Louisiana, and protected by the
Constitution of the United States from alteration or repeal; but my
reasons for this opinion are different from those stated in the
opinion of the Court. They are
Page 111 U. S. 761
not based on the ground that the act was a police regulation.
The monopoly clause in the act was clearly not such. It had nothing
of the character of a police regulation. That part of the act which
regulated the position on the river, relatively to the City of New
Orleans, in which slaughterhouses and stocklandings should be
built, was a police regulation, proper and necessary to prevent the
offal of such establishments from floating on the water in front of
the city. But such a regulation could be complied with by any
butcher erecting a slaughterhouse, or by any wharfinger erecting a
stocklanding, and so could every other real police regulation
contained in the act. The police regulations proper were hitched on
to the charter as a pretext. The exclusive right given to the
company had nothing of police regulation about it whatever. It was
the creation of a mere monopoly, and nothing else; a monopoly
without consideration and against common right; a monopoly of an
ordinary employment and business, which no legislature has power to
farm out by contract. Suppose a law should be passed forbidding the
erection of any bakery or brewery or soap manufactory within the
fire district, or any other prescribed limits in a large city. That
would clearly be a police regulation; but would it be a police
regulation to attach to such a law the grant to a single
corporation or person of the exclusive right to erect bakeries,
breweries, or soap manufactories at any place within ten miles of
the city? Every one would cry out against it as a pretense and an
outrage.
I hold it to be an incontrovertible proposition of both English
and American public law, that all mere monopolies are odious, and
against common right. The practice of granting them in the time of
Elizabeth came near creating a revolution. But Parliament, then the
vindicator of the public liberties, intervened, and passed the act
against monopolies. 21 Jac. I, c. 3. The courts had previously, in
the last year of Elizabeth, in the great case of Monopolies, 11
Rep. 84
b, decided against the legality of royal grants of
this kind. That was only the case of the sole privilege of making
cards within the realm; but it was decided on the general principle
that all monopoly patents were void, both at common law and by
statute, unless granted to the
Page 111 U. S. 762
introducer of a new trade or engine, and then for a reasonable
time only; that all trades, as well mechanical as others, which
prevent idleness, and enable men to maintain themselves and their
families, are profitable to the commonwealth, and therefore the
grant of the sole exercise thereof is against not only the common
law, "but the benefit and liberty of the subject." It was in view
of this decision, and in accordance with the principles established
by it, that the act of 21 James I was passed abolishing all
monopolies, with the exception of
"letters patent and grants of privileges, for the term of
fourteen years or under, of the sole working or vending of any
manner of new manufactures to the true and first inventor and
inventors of such manufactures, which others at the time of making
such letters patent and grants, shall not us."
As a mere declaration of the common and statute law of England,
the case of Monopolies, and the act of 21 James I, would have but
little influence on the question before us, which concerns the
power of the legislature of a state to create a monopoly. But those
public transactions have a much greater weight than as mere
declarations and enactments of municipal law. They form one of the
constitutional landmarks of British liberty, like the petition of
right, the habeas corpus act, and other great constitutional acts
of Parliament. They established and declared one of the inalienable
rights of freemen which our ancestors brought with them to this
country. The right to follow any of the common occupations of life
is an inalienable right, it was formulated as such under the phrase
"pursuit of happiness" in the declaration of independence, which
commenced with the fundamental proposition that
"all men are created equal; that they are endowed by their
Creator with certain inalienable rights; that among these are life,
liberty, and the pursuit of happiness."
This right is a large ingredient in the civil liberty of the
citizen. To deny it to all but a few favored individuals by
investing the latter with a monopoly is to invade one of the
fundamental privileges of the citizen, contrary not only to common
right, but, as I think, to the express words of the Constitution.
It is what no legislature has a right to do, and no contract to
that end can be binding on subsequent legislatures.
Page 111 U. S. 763
I do not mean to say that there are no exclusive rights which
can be granted, or that there are not many regulative restraints on
civil action which may be imposed by law. There are such. The
granting of patents for inventions, and copyrights for books, is
one instance already referred to. This is done upon a fair
consideration, and upon grounds of public policy. Society gives to
the inventor or author the exclusive benefit for a time of that
which, but for him, would not, or might not, have existed, and thus
not only repays him, but encourages others to apply their powers
for the public utility. So, an exclusive right to use franchises,
which could not be exercised without legislative grant, may be
given; such as that of constructing and operating public works,
railroads, ferries, etc. In such cases, a part of the public duty
is farmed out to those willing to undertake the burden for the
profit incidentally arising from it. So, licenses may be properly
required in the pursuit of many professions and avocations which
require peculiar skill or supervision for the public welfare. But
in such cases there is no real monopoly. The profession or
avocation is open to all alike who will prepare themselves with the
requisite qualifications, or give the requisite security for
preserving public order; except in certain cases, such as the sale
of intoxicating drinks, where the interests of society require
regulation as to the number of establishments, as well as the
character of those who carry them on. All such regulations as are
here enumerated are entirely competent to the legislature to make.
But this concession does not in the slightest degree affect the
proposition (which I deem a fundamental one), that the ordinary
pursuits of life, forming the large mass of industrial avocations,
are and ought to be free and open to all, subject only to such
general regulations, applying equally to all, as the general good
may demand, and the grant to a favored few of a monopoly in any of
these common callings is necessarily an outrage upon the liberty of
the citizen as exhibited in one of its most important aspects --
the liberty of pursuit.
But why is such a grant beyond the legislative power, and
contrary to the constitution?
The Fourteenth Amendment of the Constitution, after
declaring
Page 111 U. S. 764
that all persons born or naturalized in the United States, and
subject to the jurisdiction thereof, are citizens of the United
States and of the state wherein they reside, goes on the declare
that
"No state shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States, nor
shall any state deprive any person of life, liberty, or property
without due process of law, nor deny to any person within its
jurisdiction the equal protection of the law."
I hold that a legislative grant, such as that given to the
appellees in this case, is an infringement of each of these
prohibitions. It abridges the privileges of citizens of the United
States; it deprives them of a portion of their liberty and property
without due process of law, and it denies to them the equal
protection of the laws.
1. I hold that the liberty of pursuit -- the right to follow any
of the ordinary callings of life -- is one of the privileges of a
citizen of the United States. It was held by a majority of the
court in the former decision of the
Slaughterhouse
Cases, 16 Wall. 36,
83 U. S. 57, that
the "privileges and immunities of citizens of the United States,"
mentioned and referred to in the Fourteenth Amendment, are only
those privileges and immunities which were created by the
Constitution of the United States, and grew out of it, or out of
laws passed in pursuance of it. I then held, and still hold, that
the phrase has a broader meaning; that it includes those
fundamental privileges and immunities which belong essentially to
the citizens of every free government, among which Mr. Justice
Washington enumerates the right of protection; the right to pursue
and obtain happiness and safety; the right to pass through and
reside in any state for purposes of trade, agriculture,
professional pursuits, or otherwise; to claim the benefit of the
writ of habeas corpus; to institute and maintain actions of any
kind in the courts of the state, and to take, hold, and dispose of
property, either real or personal.
Corfield v. Corryell, 4
Wash. C.C. 381. These rights are different from the concrete rights
which a man may have to a specific chattel or a piece of land, or
to the performance by another of a particular contract, or to
Page 111 U. S. 765
damages for a particular wrong, all which may be invaded by
individuals; they are the capacity, power, or privilege of having
and enjoying those concrete rights, and of maintaining them in the
courts, which capacity, power, or privilege can only be invaded by
the state. These primordial and fundamental rights are "the
privileges and immunities of citizens" which are referred to in the
fourth article of the Constitution and in the Fourteenth Amendment
to it. In the former, it is declared that "the citizens of each
state shall be entitled to all privileges and immunities of
citizens in the several states" -- that is, in the other states. It
was this declaration which Justice Washington was expounding when
he defined what was meant by "privileges and immunities of
citizens." The Fourteenth Amendment goes further, and declares that
"no state shall abridge the privileges and immunities of citizens
of the United States;" which includes the citizens of the state
itself, as well as the citizens of other states. In my opinion,
therefore, the law which created the monopoly in question did
abridge the privileges of all other citizens, when it gave to the
appellees the sole power to have and maintain stocklandings and
slaughterhouses within the territory named, because these are among
those ordinary pursuits and callings which every citizen has a
right to follow if he will, subject, of course, to regulations
equally open to all.
2. But if it does not abridge the privileges and immunities of a
citizen of the United States of prohibit him from pursuing his
chosen calling, and giving to others the exclusive right of
pursuing it, it certainly does deprive him (to a certain extent) of
his liberty, for it takes from him the freedom of adopting and
following the pursuit which he prefers, which, as already
intimated, is a material part of the liberty of the citizen. And if
a man's right to his calling is property, as many maintain, then
those who had already adopted the prohibited pursuits in New
Orleans were deprived by the law in question of their property as
well as their liberty without due process of law.
3. But still more apparent is the violation, by this monopoly
law, of the last clause of the section -- "no state shall deny to
any person the equal protection of the laws." If it is not a
Page 111 U. S. 766
denial of the equal protection of the laws to grant to one man
or set of men the privilege of following an ordinary calling in a
large community and to deny it to all others, it is difficult to
understand what would come within the constitutional prohibition.
Monopolies are the bane of our body politic at the present day. In
the eager pursuit of gain, they are sought in every direction. They
exhibit themselves in corners in the stock market and produce
market and in many other ways. If by legislative enactment they can
be carried into the common avocations and callings of life so as to
cut off the right of the citizen to choose his avocation -- the
right to earn his bread by the trade which he has learned -- and if
there is no constitutional means of putting a check to such
enormity, I can only say that it is time the Constitution was still
further amended. In my judgment, the present Constitution is amply
sufficient for the protection of the people if it is fairly
interpreted and faithfully enforced.