Imágenes de páginas
PDF
EPUB

is specially experienced.11 And different penalties may be provided for different acts or different classes of the same act.12 Nor is a statute in conflict with the fourteenth amendment because it provides a fine or forfeiture for its violation by corporations and fine and imprisonment for its violation by individuals.18 The relation of master and servant may properly be made the classification for legislation concerning rights, duties and obligations arising therefrom.14 And a statute regulating sales is not unconstitutional because it exempts from its operation existing contracts,15 nor is a statute providing a heavier penalty for one who has previously been convicted of a felony than for one who has not.16 But the legislature cannot single out particular individuals or classes of individuals, and make it a crime for them to engage in a business which it is lawful for others to engage in, or to make contracts which it is lawful for others to make.17 Further examples of classifications which have been held to be valid and void will be found in the note,18 and in the

470, 113 N. W. 634, 114 N. W. 738; District of Columbia v. Brooke, 214 U. S. 138, 53 L. Ed. 941, 29 Sup. Ct. 560; St. John v. New York, 201 U. S. 633, 50 L. Ed. 896, 26 Sup. Ct. 554, 5 Ann. Cas. 909.

11 Armour & Co. v. State of North Dakota, 240 U. S. 510, 60 L. Ed. 771, 36 Sup. Ct. 440, aff'g 27 N. D. 177, 145 N. W. 1033, L. R. A. 1916 E 380, Ann. Cas. 1916 B 1149; Carroll v. Greenwich Ins. Co. of New York, 199 U. S. 401, 50 L. Ed. 246, 26 Sup. Ct. 66, rev'g 125 Fed. 121.

12 Ex parte Walsh, 59 Tex. Cr. 409, 129 S. W. 118.

A statute is not invalid because it prescribes greater punishment than that prescribed for kindred offenses included in that charged. People v. Mire, 173 Mich. 357, 138 N. W. 1066. 13 Ex parte Walsh, 59 Tex. Cr. 409, 129 S. W. 118.

14 State v. Moilen, 140 Minn. 112, 167 N. W. 345, 1 A. L. R. 331.

15 Williams v. Walsh, 222 U. S. 415, 56 L. Ed. 253, 32 Sup. Ct. 137, aff'g In re Williams, 79 Kan. 212, 98 Pac. 777; Sperry & Hutchinson

Co. v. Rhodes, 220 U. S. 502, 55 L.
Ed. 561, 31 Sup. Ct. 490.

16 Moore v. State of Missouri, 159 U. S. 673, 40 L. Ed. 301, 16 Sup. Ct. 179, aff'g 121 Mo. 514, 26 S. W. 345, 42 Am. St. Rep. 542.

It operates uniformly upon all persons in the same category, and there is a reasonable basis for the classification. People v. Smith, 36 Cal. App. 88, 171 Pac. 696.

17 Frorer v. People, 141 Ill. 171, 31 N. E. 395, 16 L. R. A. 492; Millett v. People, 117 Ill. 294, 7 N. E. 631, 57 Am. Rep. 869; State v. Goodwill, 33 W. Va. 179, 10 S. E. 285, 6 L. R. A. 621, 25 Am. St. Rep. 863.

A statute which imposes special restrictions or burdens, or grants special privileges to persons engaged in the same business under the same circumstances is void. State V. Gardner, 58 Ohio St. 599, 51 N. E. 136, 41 L. R. A. 689, 65 Am. St. Rep. 785.

18 The following statutes have been held not to be unconstitutional:

A statute prohibiting the use of the national flag for advertising pur

subsequent chapters herein dealing with the various specific crimes. 19

§ 49. Religious freedom. The constitutional guaranties of religious freedom, found in the federal 20 and most of the state 21 constitutions, prevent interference by Congress and state legislatures with religious

poses, but which permits representations of the flag to be placed on newspapers, books, periodicals or pamphlets disconnected from any advertising. Halter v. State of Nebraska, 205 U. S. 34, 51 L. Ed. 696, 27 Sup. Ct. 419, 10 Ann. Cas. 525, aff'g 74 Neb. 757, 105 N. W. 298, 7 L. R. A. (N. S.) 1079, 121 Am. St. Rep. 754.

A statute requiring locomotives to be equipped with electric headlights which will give a light of a certain intensity but excepting from its operation tramroads, mill-roads, and logging roads, and which does not apply to receivers. Atlantic Coast Line R. Co. v. State, 135 Ga. 545, 69 S. E. 725.

A statute making it an offense for the owners of pooled farm products to sell the same, or for others to knowingly purchase the same, in violation of the agreement. Com. v. Hodges, 137 Ky. 233, 125 S. W. 689.

A law prohibiting the manufacture of intoxicating liquor, but excepting alcohol of not less than 188 proof for chemical, pharmaceutical, medical and bacteriological purposes. Notlow v. State, 125 Tenn. 547, 145 S. W. 177, L. R. A. 1916 F 177, appeal dismissed 239 U. S. 653, 60 L. Ed. 487, 36 Sup. Ct. 161 (mem. dec.).

A statute providing a special punishment for embezzlement by guardians. State v. Whitehouse, 96 Me. 179, 49 Atl. 869.

A statute in making it an offense to sell or offer for sale meat falsely represented to be kosher. People v. Goldberger, 163 N. Y. Supp. 663.

A statute punishing certain acts by

tramps is not invalid because it defines a tramp as a person, other than a female or a blind person, found going about begging in a county other than that in which he usually lives or has his home. State v. Hogan, 63 Ohio St. 202, 58 N. E. 572, 52 L. R. A. 863, 81 Am. St. Rep. 626.

Discrimination in a liquor law in favor of farmers and of manufacturers of native wines is invalid. State v. Scampini, 77 Vt. 92, 59 Atl. 201. And so is a statute requiring persons purchasing milk for the purpose of reselling or manufacturing it into other products to pay for the same semi-monthly. State v. Latham, 115 Me. 176, 98 Atl. 578, L. R. A. 1917 A 480.

Some of the lower federal courts held that the federal food control act, commonly known as the Lever Act, enacted during the war with Germany, was not invalid as class legislation because it provided that certain of its provisions should not apply to transactions on any exchange, board of trade, etc., or to farmers, gardeners, etc., or to associations of farmers or gardeners. C. A. Weed & Co. v. Lockwood, 266 Fed. 785; United States v. Swedlow, 264 Fed. 1016.

But others held that the classification was arbitrary and unreasonable. United States v. Armstrong, 265 Fed. 683.

[blocks in formation]

beliefs and opinions.22 But they cannot be made a shield for violation of criminal laws which are not designed to restrict religious worship, but to protect society against practices that are clearly immoral and corrupting, or are detrimental to the comfort, health, safety, or peace of the community.23 So they do not prevent Congress from making it an offense to send obscene, lewd, or lascivious matter through the mails,24 nor from punishing a person for falsely pretending to entertain certain religious views and beliefs for the fraudulent purpose of procuring money or other things of value from third persons by the use of the mails,25 nor state legislatures from prohibiting the practice of fortune telling, clairvoyance, and the like,26 or the wearing of badges or emblems of a secret society by persons who are not members of the society,27 nor from punishing blasphemy, 28 or violations of the Sunday laws.29 Nor do they invalidate statutes punishing bigamy or polygamy,30 or the playing of drums or musical instruments, or parading with such instruments, on the streets,81 as applied to per

22 People v. Ashley, 184 N. Y. App. Div. 520, 172 N. Y. Supp. 282; State v. Neitzel, 69 Wash. 567, 125 Pac. 939, 43 L. R. A. (N. S.) 203, Ann. Cas. 1914 A 899.

23 United States. Knowles V. United States, 170 Fed. 409.

Alabama. Fealy v. City of Birmingham, 15 Ala. App. 367, 73 So. 296.

Idaho. Toneray v. Budge, 14 Idaho 621, 95 Pac. 26; Wooley v. Watkins, 2 Idaho 590, 22 Pac. 102.

Massachusetts. Com. v. Plaisted, 148 Mass. 375, 19 N. E. 224, 2 L. R. A. 142, 12 Am. St. Rep. 566.

Michigan. In re Frazee, 63 Mich. 396, 30 N. W. 72, 6 Am. St. Rep. 310. New Hampshire. State v. White,

64 N. H. 48, 5 Atl. 828.

New York. People v. Pierson, 176 N. Y. 201, 68 N. E. 243, 63 L. R. A. 187, 98 Am. St. Rep. 666, rev'g 80 App. Div. 415, 81 N. Y. Supp. 214; People v. Ashley, 184 App. Div. 520, 172 N. Y. Supp. 282.

Ohio. State v. Marble, 72 Ohio St. 21, 73 N. E. 1063, 70 L. R. A. 835, 106 Am. St. Rep. 570, 2 Ann. Cas. 898. The exercise of religion must be

subordinate to criminal laws passed with reference to actions regarded by general consent as properly the subjects of punitive legislation. Davis v. Beason, 133 U. S. 333, 33 L. Ed. 637, 10 Sup. Ct. 299.

a

And a person who practices wrong in the name of religion is not protected by the constitution. People v. Cole, 219 N. Y. 98, 113 N. E. 790, L. R. A. 1917 C 816, rev'g 163 N. Y. App. Div. 292, 148 N. Y. Supp. 708. Nor can a man excuse his violation of a statute because of his religious belief. Reynolds v. United States, 98 U. S. 145, 25 L. Ed. 244. 24 Knowles v. United States, 170 Fed. 409.

25 New v. United States, 245 Fed. 710.

26 See § 1330, infra.

27 Hammer v. State, 173 Ind. 199, 89 N. E. 850, 24 L. R. A. (N. S.) 795, 140 Am. St. Rep. 248, 21 Ann. Cas. 1034.

28 See § 1544, infra.
29 See § 1334 et seq.,
infra.
30 See § 1125 et seq., infra.

31 Mashburn v. City of Blooming

sons who do the forbidden acts as part of a system of religion, nor statutes making it an offense to practice medicine or healing without a license as applied to persons practicing divine healing, and the like,32 nor statutes making it an offense for a person to fail to provide necessary medical attendance for his minor child, as applied to a case where such failure is due to the defendant's religious belief,33 nor statutes directed against fraud which can only victimize persons belonging to a particular religious sect or order.34

§ 50. Freedom of speech and of the press. The first amendment to the federal constitution provides that Congress shall make no law abridging the freedom of speech or of the press,35 and similar provisions limiting the power of state legislatures are to be found in the constitutions of many of the states.36 The main purpose of such provisions is to prevent such restraints upon publications and free speech as had previously been practiced by other governments,37 and they preserve the right to speak or publish without previously submitting for official approval the matter to be spoken or published.38 But the freedom secured thereby is not an unlimited license to speak and to publish whatever one may choose,39 and they do not protect or

ton, 32 Ill. App. 245; Com. v. Plaisted, 148 Mass. 375, 19 N. E. 224, 2 L. R. A. 142, 12 Am. St. Rep. 566; In re Frazee, 63 Mich. 396, 30 N. W. 72, 6 Am. St. Rep. 310; State v. White, 64 N. H. 48, 5 Atl. 828.

32 See § 1392, infra.

33 See § 1150, infra.

34 As a statute making it an offense to sell or offer for sale meat falsely represented to be Kosher. People v. Goldberger, 163 N. Y. Supp. 663.

35 U. S. Const., Amendment 1. To what extent this amendment constitutes a limitation upon the power of state legislatures is still a mooted question. State v. Holm, 139 Minn. 267, 166 N. W. 181, L. R. A. 1918 C 304.

36 See the state constitutions.

37 Patterson v. People of State of Colorado, 205 U. S. 454, 51 L. Ed. 879, 27 Sup. Ct. 556, 10 Ann. Cas. 689; United States v. Toledo Newspaper

Co., 220 Fed. 458. And see Schenck v. United States, 249 U. S. 47, 63 L. Ed. 470, 39 Sup. Ct. 247.

38 State v. Holm, 139 Minn. 267, 166 N. W. 181, L. R. A. 1918 C 304.

The purpose was to prevent the enactment of license laws, or other direct restraints upon publication, leaving individuals at liberty to print without the previous permission of any officer of government, subject to responsibility for the matter printed. Com. v. Kneeland, 20 Pick. (Mass.) 206, aff'g Thach. Cr. Cas. 346.

39 Warren V. United States, 183 Fed. 718; Com. v. Kneeland, 20 Pick. (Mass.) 206, aff'g Thach. Cr. Cas. 346; State v. Holm, 139 Minn. 267, 166 N. W. 181, L. R. A. 1918 C 304; People v. Most, 171 N. Y. 423, 64 N. E. 175, 58 L. R. A. 509, aff'g 71 N. Y. App. Div. 160, 75 N. Y. Supp. 591.

The amendment was not intended to give immunity for every possible

furnish immunity to those who abuse the privilege protected.40 They do not prevent the infliction of punishment for such publications as may be deemed contrary to public welfare, or injurious to society, or which tend to subvert or imperil the government or to impede or hinder it in the performance of its governmental duties, or to cause breaches of the peace,41 and they cannot be made a shield for violation of criminal laws which are not designed to restrict freedom of speech or of the press, but to protect society from acts clearly immoral and corrupting or otherwise injurious to the people.42 Whether particular utterances or publications are within the protection of the constitution depends upon the circumstances under which they were made.43 And many utterances or publications that might be within its protection in time of peace may be prohibited without violating it in time of war. 44 The question in every case is whether the words were used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils which Congress or the legislature has a right to prevent.45

Provisions of this character do not invalidate statutes punishing libel and slander,46 blasphemy,47 or the use of profane or obscene

use of language. Frohwerk v. United States, 249 U. S. 204, 63 L. Ed. 561, 39 Sup. Ct. 249.

The right is not an absolute one. There is no absolute right to speak that which may injure the public or an individual or to remain silent when silence would work a similar result. Dickinson v. Perry, 75 Okla. 25, 181 Pac. 504.

40 United States v. Toledo Newspaper Co., 220 Fed. 458; State v. Holm, 139 Minn. 267, 166 N. W. 181, L. R. A. 1918 C 304.

41 Patterson v. People of State of Colorado, 205 U. S. 454, 51 L. Ed. 879, 27 Sup. Ct. 556, 10 Ann. Cas. 689; United States v. Toledo Newspaper Co., 220 Fed. 458; Tyomies Pub. Co. v. United States, 211 Fed. 385; State v. Holm, 139 Minn. 267, 166 N. W. 181, L. R. A. 1918 C 304; People v. Most, 171 N. Y. 423, 64 N. E. 175, 58 L. R. A. 509, aff'g 71 N. Y. App. Div. 160, 75 N. Y. Supp. 591; Ex

parte Meckel, 87 Tex. Cr. 120, 220 S. W. 81.

United

42 Tyomies Pub. Co. V. States, 211 Fed. 385; Knowles v. United States, 170 Fed. 409.

The constitution does not protect the publisher from the consequences of a crime committed by the act of publication. People v. Most, 171 N. Y. 423, 64 N. E. 175, 58 L. R. A. 509, aff'g 71 N. Y. App. Div. 160, 75 N. Y. Supp. 591.

43 Schenck v. United States, 249 U. S. 47, 63 L. Ed. 470, 39 Sup. Ct. 247.

44 Schenck v. United States, 249 U. S. 47, 63 L. Ed. 470, 39 Sup. Ct. 247; Schoborg v. United States, 264 Fed. 1; State v. Smith, 57 Mont. 563, 190 Pac. 107; State v. Kahn, 56 Mont. 108, 182 Pac. 107.

45 Schenck v. United States, 249 U. S. 47, 63 L. Ed. 470, 39 Sup. Ct. 247. 46 See § 803 et seq., infra. 47 See § 1544, infra.

« AnteriorContinuar »