Laws Against Fraud and Oppression.

The protection of the whole community, or of classes of individuals, against fraud, overreaching, and oppression, is a legitimate department of the police power. Historically this is shown by the old market laws, against engrossing and forestalling, and the criminal laws against fraud and conspiracy which have always existed; and theoretically it is justified by the consideration that one of the functions of the state is to protect all citizens in the equal enjoyment of their rights. "The decisions," says a learned judge, "show that the right of self-preservation, which exists in the commonwealth no less than in the individual, may, in some circumstances, justify limitations upon freedom of contract, and that when for any reason (for instance, the existence of a monopoly) real liberty of action is wanting on the side of one of the parties, in dealings forming part of the activities of civilized society, a reasonable check may justly be placed by law upon the power of the other to oppress his fellow citizen." 96 And it is to this head that we must refer the laws for the protection of infants, married women, lunatics, and seamen, in their business dealings. But no such power is applicable to the contracts and employment of laboring men, merely as such, as has been already shown. Usury laws proceed upon the theory that the lender and the borrower of money do not occupy the same relations of equality that parties do in contracting with each other in respect to other matters, and that the borrower's necessities deprive him of freedom in contracting and place him at the mercy of the lender.97 On the same general principle are to be considered the statutes regulating dealings in patent rights, those providing for the inspection of goods intended for sale or export,98 those for the inspection and regulation of weights and measures," those regulating the weight of bread,100 and ordinances requiring hay and coal to be weighed on public scales or by public weighers.101

96 State v. Loomis, 115 Mo. 307, 22 S. W. 350, dissenting opinion of Barclay, J.

97 Frorer v. People, 141 Ill. 171, 31 N. E. 395.

98 Turner v. Maryland, 107 U. S. 38, 2 Sup. Ct. 44.

99 Ritchie v. Boynton, 114 Mass. 431.

100 Mayor of Mobile v. Yuille, 3 Ala. 137.

101 Stokes v. New York, 14 Wend. (N. Y.) 87; Yates v. City of Milwaukee,

And so, in New York, the court sustained a law which was intended to empower manufacturers of sparkling and aerated waters to stamp their bottles with a device or trade-mark and have the same registered, and which made it a criminal offense for all other persons to fill such bottles with the substances for which they were intended, or to sell the same without the written consent of the manufacturer or unless purchased from him.102

Same-Monopolies, Trusts, Strikes, and Boycotts.

Trusts, monopolies, corners, engrossing of the market, and other combinations in restraint of trade or intended to raise prices, are all unlawful at common law, and it is within the police power of the state to prohibit them or punish those promoting them. All contracts which have a tendency to stifle competition, or to create or foster monopolies, with a view unreasonably to increase the market price of commodities, are against public interest and contrary to public policy.108 For instance, a "corner," whether to affect the price of articles of commerce or the price of vendible stocks, by confederation to raise or depress the price and operate on the markets, is a conspiracy.104 A pool or trust formed by the manufacturers of a given commodity, giving to a central committee exclusive authority to regulate the price and grade thereof, and prohibiting the members of the association from selling the article except through the trust, and at the established prices, tends to create a monopoly in restraint of trade, and is void as against public policy, and will not be aided by the courts.105 The congress of the United States, so far as the matter lies within its jurisdiction, has taken action to prevent the formation of such trusts and pools. An act of 1890 declares that all contracts, combinations, or conspiracies in restraint of trade are illegal, and makes it a misdemeanor for any person to make or engage in them, or to monopolize, or attempt or conspire with others to monopolize, any part of the trade or commerce among the several states or

102 People v. Cannon, 139 N. Y. 32, 34 N. E. 759.

108 Texas & P. Ry. Co. v. Southern Pac. Ry. Co., 41 La. Ann. 970, 6 South. 888.

104 Morris Run Coal Co. v. Barclay Coal Co., 68 Pa. St. 173.

105 Central Ohio Salt Co. v. Guthrie, 35 Ohio St. 666.

with foreign nations.106 So, also, the interstate commerce act forbids carriers subject to its provisions from entering into any agreement for pooling the freights, or dividing the gross or net earnings, of different and competing railroads.107 In the absence of some such statute, the illegality of such combinations is not perfectly clear. In some states, it is held that an agreement forming a traffic association between a number of railroad companies, by which a managing committee is authorized to fix freight rates, no member being allowed to reduce them, is illegal.108 But in others it is considered that a contract between rival and competing railroads, made for the purpose of preventing competition, but not for the purpose of raising the prices of transportation above a reasonable standard, is not against public policy.109

Strikes and boycotts, when accompanied by, or resulting in, any trespass upon the rights or property of others, or operated by means of violence, threats, or any coercive measures, are likewise illegal, and sometimes amount to breaches of the criminal laws. In an early and leading case on this subject it was held that an indictment lay against certain journeymen tailors for conspiring to raise the price of their labor by refusing to work until the increase demanded should be granted them.110 So, also, it is an indictable conspiracy for several employés to combine and notify their employer that, unless he discharges certain enumerated persons, they will, in a body, quit his employment.111 On the same general prin

112

ciple, a combination formed for the purpose of boycotting a person or firm is a criminal conspiracy and an indictable offense at common law.1 Thus, a combination or conspiracy by a trades union to boycott a newspaper for refusing to unionize its office is illegal and unlawful, and will be enjoined by a court of equity; and equity will enjoin the publication and circulation of posters, hand

106 See U. S. v. Patterson, 55 Fed. 605.

107 24 Stat. 380, § 5.

108 Gulf, C. & S. F. Ry. Co. v. State, 72 Tex. 404, 10 S. W. 81.

109 Manchester & L. R. R. v. Concord R. R., 66 N. H. 100, 20 Atl. 383.

110 Rex v. Journeymen-Tailors of Cambridge, 8 Mod. 10.

111 State v. Donaldson, 32 N. J. Law, 151.

112 Crump's Case, 84 Va. 927, 6 S. E. 620; State v. Stewart, 59 Vt. 273, 9 Atl. 559.

bills, circulars, etc., printed and distributed in pursuance of such combination or conspiracy.118

Regulation of Roads and Streets.

The power of a municipal corporation to order sidewalks of a particular kind to be laid, and to assess against the abutting property owners an amount necessary to pay for the same, and to pay for keeping the same in repair and proper condition for the use of the public, is generally upheld upon the ground that it is a proper exercise of the police power. And it is held that a statute authorizing a city to contract for sprinkling and sweeping the streets at the cost of the property owners along the line of such streets, is valid and constitutional.114 So, also, it has been held to be a competent exercise of the police power to require residents in cities to keep their sidewalks clear of ice and snow, under a penalty or under pain of having it removed by the public authorities at their expense.

Such

a law is not a tax or burden, and is not unequal or partial. The validity of such ordinances is sustained on the ground of the special power and opportunity which the individual residents possess to discharge this public duty with that despatch which the comfort and welfare of the whole community require, and also in view of their peculiar interest in its performance.115 The right of a city to take the land of a riparian proprietor to enlarge a roadway which

118 Casey v. Union, 45 Fed. 135.

114 Reinken v. Fuehring, 130 Ind. 382, 30 N. E. 413. The same principle applies to grading, curbing, or paving streets and laying sewers, at the cost, or partly at the cost, of abutting lot owners, the point, in all these cases, being that the charge upon such owners is not a tax but a local assessment for special benefits, and that they cannot complain that they are deprived of their property without due process of law or without compensation. But it is very doubtful whether these enactments are referable to the police power, properly and strictly so called. If such statutes are not unconstitutional as an exercise of the power of taxation, in a modified form, it is enough, and the police power need not be invoked for their justification.

115 Goddard, Petitioner, 16 Pick. (Mass.) 504; Village of Carthage v. Frederick, 122 N. Y. 268, 25 N. E. 480. But in Illinois, the courts have refused to sustain laws of this character, holding that the sidewalk is a part of the public highway, under the care and control of the municipality, and in which the abutting lot owner has no other or different interest than all the other citizens. Gridley v. City of Bloomington, 88 П 554; City of Chicago v. O'Brien, 111 Ill. 532.

has been encroached on by the waters of the river is an exercise of the police power vested in the city by the state, and not of the power of eminent domain; and hence an ordinance directing the appropri ation of land for such a purpose, without compensation to the ri parian proprietor, is not unconstitutional.116

Game Laws.

The preservation of game and fish has always been treated as within the proper domain of the police power, and laws limiting the season within which birds or wild animals may be killed or exposed for sale, and prescribing the time and manner in which fish may be caught, have been repeatedly upheld by the courts.1 And the prohibition may be extended so as to include fish which have been artificially propagated or maintained.118

State Engaging in Business.

117

The police power of a state to regulate a business does not include the power to engage in carrying on that business. On this ground a statute of Minnesota, providing for the building and maintaining, at the charge of the state, and under the supervision of a commission, of a warehouse and grain elevator, was held unconstitutional.119 And the reader will remember that this was also the ob jection which at first prevailed against the South Carolina dispensary law, mentioned a few pages earlier. In Massachusetts, it is held that the furnishing of gas and electricity for illuminating purposes is a public service. And the performance of this service can be delegated by the legislature to cities and towns for the benefit of themselves and their inhabitants, and such cities and towns may be authorized to impose taxes for this purpose upon their inhabitants, and to estab lish reasonable rates which the inhabitants who use the gas or electricity may be compelled to pay.120 But in the same state, a few

116 Ruch v. City of New Orleans, 43 La. Ann. 275, 9 South. 473.

117 Lawton v. Steele, 152 U. S. 133, 14 Sup. Ct. 499.

118 Com. v. Gilbert, 160 Mass. 157, 35 N. E. 454.

119 Rippe v. Becker, 56 Minn. 100, 57 N. W. 331.

120 Opinion of the Justices, 150 Mass. 592, 24 N. E. 1084. The same decision was made in Ohio in regard to cities furnishing a supply of natural gas for public and private use, and issuing bonds to cover the expense of the wells, works, etc. State v. City of Toledo, 48 Ohio St. 112, 26 N. E. 1061.