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in the federal and state constitutions, means not only freedom of the citizen from servitude and restraint, but is deemed to embrace the right of every man to be free in the use of his powers and faculties, and to adopt and pursue such avocation or calling as he may choose, subject only to the restraints necessary to secure the common welfare.59

§ 251. Same-Same-Liberty of contract.-The liberty secured to the citizen by the fourteenth amendment embraces the right to make and enter into all lawful contracts which may be proper or necessary or essential to enable him to pursue any lawful trade or calling, and to acquire, hold and sell property; but this right to make and enter into contracts is, like all other rights and liberties, restrained and regulated by law, and must be exercised in subordination to the valid laws and rules established by society for the general welfare. While it may be laid down as a general proposition, that the liberty of contract is an inalienable right of the citizen, yet such right is not absolute, but it is within the undoubted power of both the state

59 Corfield v. Coryell, 4 Wash. 371, Fed. Cas. 3,230; Paul v. Virginia, 8 Wall. 168, 180 (19:357); Froer v. People, 141 Ill. 171; Commonwealth v. Perry, 155 Mass. 117, 31 Am. St. Rep. 533; People v. Gillson, 109 N. Y. 389, 4 Am. St. Rep. 465; Goodcharles v. Wigeman, 113 Pa. St. 431; State v. Goodwill, 34 West Va. 179, 25 Am. St. Rep. 863; Braceville Coal Co. v. People, 147 Ill. 66, 37 Am. St. Rep. 206; Matter of Jacobs, 98 N. Y. 98, 50 Am. Rep. 636; Bertholf v. O'Reilly, 74 N. Y. 509, 30 Am. Rep. 232; People v. Max, 99 N. Y. 377, 52 Am. Rep. 34; Atkin v. Kansas, 191 U. S. 207, 224 (48: 148); Allgeyer v. Louisiana, 165 U. S. 578 (41:832); Williams v. Fears, 179 U. S. 270 (45:186); Cargill Co. v. Minnesota ex rel Railroad & W. Com., 180 U. S. 452, 470 (45:619); United States V. Joint Traffic Association, 171 U. S. 505, 578 (43:288); Hopkins v.

United States, 171 U. S. 578, 604 (43:290); Hooper v. State of California, 155 U. S. 648, 664 (39: 297); Frisbee v. United States, 160, 168 (39:657).

"The liberty mentioned in that amendment" (14th) "means, not only the right of the citizen to be free from the mere physical restraint of his person, as by incarceration, but the term is deemed to embrace the right of the citizen to be free in the enjoyment of all his faculties; to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; to pursue any livelihood or avocation, and for that purpose to enter into all contracts which may be proper, necessary, and essential to his carrying out to a successful conclusion the purposes above mentioned." Mr. Justice Peckham in Allgeyer v. Louisiana, supra.

and federal governments, each acting within its sphere, to regulate and restrain such right. Liberty of contract does not imply liberty in corporations or individuals to defy the national will when legally expressed; it does not imply liberty in corporations and individuals to defy the will of the state, when legally expressed in the exercise of its reserved powers of municipal soverignty."

Go Hing v. Crowley, 113 U. S. 703, 711 (28:1145); Hooper v. State of California, 155 U. S. 648, 664 (39:297); Frisbee v. United States, 157 U. S. 160, 168 (39:657); United States v. Joint-Traffic Association, 171 U. S. 505, 578 (43:259); Hopkins V. United States, 171 U. S. 578, 604 (43:290); Atkins v. Kansas, 191 U. S. 207, 224 (48:148); Allgeyer v. Lousiana, 165 U. S. 578 (41:832); Williams v. Fears, 179 U. S. 270 (45:186); Corgill Co. v. Minnesota ex rel. Railroad & W. Com., 180 U. S. 452, 470 (45:619); Hooper v. State of California, 185 U. S. 648, 664 (39:279); Northern Securities Co. v. United States, 197, 406 (48:679); Addyston Pipe & Steel Co. v. United States, 175 U. S. 211, 248 (44:136).

"However broad the right of everyone to follow such calling and employ his time as he may judge most conducive to his interests, it must be subject to such general rules as are adopted by society for the common welfare. All sorts of restrictions are imposed upon the actions of men, notwithstanding the liberty which is guarantied to each. It is liberty regulated by just and impartial laws. Parties, for example, are free to make any contracts they choose for a lawful purpose, but society says what contracts shall be in writing and what may

be verbally made, and on what days they may be executed, and how long they may be enforced if their terms are not complied with. So, too, with the hours of labor. On few subjects has there been more regulation. How many hours shall constitute a day's work in the absence of a contract, at what time shops in our cities shall close at night, are constant subjects of legislation.. Laws setting aside Sunday as a day of rest are upheld, not from any right of the government to legislate for the promotion of religious observances, but from its right to protect all persons from the physical and moral debasement which comes from uninterrupted labor. Such laws have always been deemed beneficent and merciful laws, especially to the poor and dependent, to the laborers in our factories and workshops and in the heated rooms of our cities; and their validity has been sustained by the highest courts of the states." Mr. Justice Field in Hing v. Crowley, supra.

"While it may be conceded that, generally speaking, among the inalienable rights of the citizen is that of the liberty of contract, yet such liberty is not absolute and universal. It is within the undoubted power of government to restrain some individuals from all contracts, as well as all individ

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§ 252. Same-Corporations not citizens within the meaning of this constitutional provision.-It has long been settled that, for the purposes of suit by or against it in the courts of the United States, the members of a corporation are to be conclusively presumed to be citizens of the state creating such corporation, and that therefore the corporation is to be deemed, for such purposes, a citizen of the state under whose laws it was created and organized. But it is equally well settled, that a corporation is not a citizen within the meaning of the constitutional provision that "the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states." 61 A state may lawfully prohibit a corporation of another state from participating upon terms of equality, with local creditors in the distribution of the assets of an insolvent individual or corporation in the hands and custody of its courts; 2 and it may require an insurance company incorporated in another state to take out a license before doing business within its jurisdiction, and also to make a deposit for the security of its policy-holders. In the case last cited, Field, Justice, delivering the opinion of the court, said: "But in no case which has come under our observation, either in the state or federal courts has a corporation been considered a citizen within the meaning of that provision of the constitution which declares that the citizens of each state shall be entitled to all the privileges and immunities of citizens of the sev

uals from some contracts. It may deny to all the right to contract for the purchase or sale of lottery tickets; to the minor the right to assume any obligations, except for the necessaries of existence; to the common carrier the power to make any contract releasing himself from negligence, and, indeed, may restrain all engaged in any employment from any contract in the course of that employment which is against public policy. The possession of this power by the gov ernment in no manner conflicts with the proposition that, generally speaking, every citizen has a right freely to contract for the

63

price of his labor, services or property." Mr. Justice Brewer in Frisbie v. United States, supra.

61 Blake v. McClung, 172 U. S. 239, 269 (43:432); Paul v. Virginia, 8 Wall. 168, 178 (19:357); Ducat v. Chicago, 10 Wall. 410 (19:972); Liverpool Ins. Co. v. Massachusetts, 10 Wall. 566 (19:1029); Perubina Con. Silver Mining Co. v. Pennsylvania, 123 U. S. 181, 190 (31:650); R. Co. v. Pennsylvania, 136 U. S. 114 (34:394).

62 Blake v. McClung, 172 U. S. 239, 269 (43:432).

63 Paul v. Virginia, 8 Wall. 168, 178 (19:357).

eral states." And, after defining "privileges and immunities," he continued, saying: "But the privileges and immunities secured to citizens of each state in the several states, by the provision in question, are those privileges and immunities which are common to the citizens in the latter states under their constitution and laws by virtue of their being citizens. Special privileges enjoyed by citizens in their own states are not secured in other states by this provision. It was not intended by the provision to give to the laws of one state any operation in other states. They can have no such operation, except by the permission, express or implied, of those states. The special privileges which they confer must, therefore, be enjoyed at home, unless the assent of other states to their enjoyment therein be given. Now, a grant of corporate existence is a grant of special privileges to the corporators enabling them to act for certain designated purposes as a single individual, and exempting them (unless otherwise specially provided) from individual liability. The corporation being the mere creation of local law, can have no legal existence beyond the limits of the sovereignty where created."

And it is also held in a recent case, by the supreme court of the United States, that a corporation is not a citizen within the provision of the fourteenth amendment, which declares that, "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." 04

§ 253. Same-Common property of the state-Fisheries.— Each state owns the beds of all tide-waters within its jurisdiction, unless they have been granted away, and in like manner owns the tide-waters themselves, and the fish in them, so far as they are capable of ownership as they run; and for this purpose, and in this dominion over the tide-beds and tide-waters and fisheries, the state represents its people, and the ownership is that of the people in their united sovereignty. The right to plant, cultivate and take oysters in the tide-waters and tidebeds is in the exclusive control of the state, which has the right in its discretion to appropriate its tide-waters and tide-beds to be used by its people as a common for planting, cultivating and taking oysters, so far as it may be done without obstruct

61 Western Turf Asso. v. Greenberg, 204 U. S. 359-364 (51:520).

ing navigation, and such appropriation is, in effect, nothing more than a regulation of the use by the people of their common property; and the right which the people of the state acquire by such appropriation comes not from their citizenship alone, but from their citizenship and property combined, and is in fact a property right, and not a mere privilege or immunity of citizenship, and, for this reason, and upon this principle, the citizens of one state are not vested with the right by the constitution to plant, cultivate and take oysters in the tide-waters and tide-beds of another state.65

§ 254. Same-Marital rights.-According to the express words and clear meaning of the first clause of the second section of the fourth article of the constitution, no privileges are secured by it, except those which belong to citizenship, and rights attached by law to marital contracts by reason of the place where such contracts are made or executed, wholly irrespective of the citizenship of the parties to those contracts, cannot be deemed privileges of a citizen within the meaning of the constitution; and a widow, who was married to her deceased husband in the state of Mississippi, and who resided there with him during the continuance of their marital relation, is not invested by this clause of the constitution with those marital rights, in a plantation acquired by her husband, during the continuance of the marriage, in the state of Louisiana, given by the laws of that state to a married woman whose marriage with her husband was contracted there, or who resided there with her husband in the marital relation after it was created.c

65 McCready v. Virginia, 94 U. S. 391 (24:248); State v. Towler, 84 Me. 445, 24 Atl. 899.

"The planting of oysters in the soil covered by water owned in common by the people of the state is not different in principle from that of planting corn on dry land held in the same way. Both are for the purposes of cultivation and profit; and if the state, in the regulation of its public domain, can grant its own citizens the exclusive use of dry lands, we see no

reason why it may not do the same thing in respect to such as are covered with water. And as all concede that a state may grant to one of its citizens the exclusive use of a part of the common property, the conclusion would seem to follow, that it might by appropriate legislation confine the use of the whole to its own people alone." Chief Justice Waite in McCready v. Virginia, supra.

66 Conner v. Elliott, 18 How. 591, 594 (15:497).

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