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commerce or privileges and immunities principles, rather than under substantive due process. Ownership of Real Property: Rights and Limitations Zoning and Similar Actions.—It is now well established that states and municipalities have the police power to zone land for designated uses. Zoning authority gained judicial recognition early in the 20th century. Initially, an analogy was drawn to public nuisance law, so that States and their municipal subdivisions could declare that specific businesses, although not nuisances per se, were nuisances in fact and in law in particular circumstances and in particular localities. 308 Thus, a State could declare the emission of dense smoke in populous areas a nuisance and restrain it, even though this affected the use of property and subjected the owner to the expense of compliance. 309 Similarly, the Court upheld an ordinance that prohibited brick making in a designated area, even though the specified land contained valuable clay deposits which could not profitably be removed for processing elsewhere, was far more valuable for brick making than for any other purpose, had been acquired before it was annexed to the municipality, and had long been used as a brickyard. 310 VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00058 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 AMENDMENT 14—RIGHTS GUARANTEED 1729 311 Cf. Developments in the Law-Zoning, 91 HARV. L. REV. 1427 (1978). 312 Welch v. Swasey, 214 U.S. 91 (1909). 313 Gorieb v. Fox, 274 U.S. 603 (1927). 314 Agins v. City of Tiburon, 447 U.S. 255 (1980). 315 Penn Central Transp. Co. v. City of New York, 438 U.S. 104 (1978). 316 Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926); Zahn v. Board of Pub. Works, 274 U.S. 325 (1927); Nectow v. City of Cambridge, 277 U.S. 183 (1928); Cusack Co. v. City of Chicago, 242 U.S. 526 (1917); St. Louis Poster Adv. Co. v. City of St. Louis, 249 U.S. 269 (1919). 317 See, e.g., Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), and discussion of ‘‘Regulatory Taking’’ under the Fifth Amendment, supra 318 Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926). 319 Village of Belle Terre v. Boraas, 416 U.S. 1 (1974). 320 431 U.S. 494 (1977). A plurality of the Court struck down the ordinance as a violation of substantive due process, an infringement of family living arrangements which are a protected liberty interest, id. at 498–506, while Justice Stevens concurred on the ground that the ordinance was arbitrary and unreasonable. Id. at 513. Four Justices dissented. Id. at 521, 531, 541. 321 Buchanan v. Warley, 245 U.S. 60 (1917). With increasing urbanization came a broadening of the philosophy of land-use regulation to protect not only health and safety but also the amenities of modern living. 311 Consequently, the Court has recognized the power of government, within the loose confines of the due process clause, to zone in many ways and for many purposes. Governments may regulate the height of buildings, 312 establish building setback requirements, 313 preserve open spaces (through density controls and restrictions on the numbers of houses), 314 and preserve historic structures. 315 The Court will generally uphold a challenged land-use plan unless it determines that either the overall plan is arbitrary and unreasonable with no substantial relation to the public health, safety, or general welfare, 316 or that the plan as applied amounts to a taking of property without just compensation. 317 Applying these principles, the Court has held that the exclusion of apartment houses, retail stores, and billboards from a ‘‘residential district’’ in a village is a permissible exercise of municipal power. 318 Similarly, a housing ordinance in a community of singlefamily dwellings, in which any number of related persons (blood, adoption, or marriage) could occupy a house but only two unrelated persons could do so, was sustained in the absence of any showing that it was aimed at the deprivation of a ‘‘fundamental interest.’’ 319 Such a fundamental interest, however, was found to be implicated in Moore v. City of East Cleveland 320 by a ‘‘single family’’ zoning ordinance which defined a ‘‘family’’ to exclude a grandmother who had been living with her two grandsons of different children. Similarly, black persons cannot be forbidden to occupy houses in blocks where the greater number of houses are occupied by white persons, or vice versa. 321 VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00059 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 1730 AMENDMENT 14—RIGHTS GUARANTEED 322 Eubank v. City of Richmond, 226 U.S. 137 (1912). 323 Washington ex rel. Seattle Title Trust Co. v. Roberge, 278 U.S. 116 (1928). In a more recent case, the Court held that the zoning power may not be delegated to a church. Larkin v. Grendel’s Den, 459 U.S. 116 (1982) (invalidating under the Establishment Clause a state law permitting any church to block issuance of a liquor license for a facility to be operated within 500 feet of the church). 324 Thomas Cusack Co. v. City of Chicago, 242 U.S. 526 (1917). The Court thought the case different from Eubank, because in that case the ordinance established no rule but gave the force of law to the decision of a narrow segment of the community, whereas in Cusack the ordinance barred the erection of any billboards but permitted the prohibition to be modified by the persons most affected. Id. at 531. 325 City of Eastlake v. Forest City Enterprises, 426 U.S. 668 (1976). Such referenda do, however, raise equal protection problems. See, e.g., Reitman v. Mulkey, 387 U.S. 369 (1967). In one aspect of zoning—the degree to which such decisions may be delegated to private persons—the Court has not been consistent. Thus, for instance, it invalidated a city ordinance which conferred the power to establish building setback lines upon the owners of two thirds of the property abutting any street. 322 Or, in another case, it struck down an ordinance which permitted the establishment of philanthropic homes for the aged in residential areas, but only upon the written consent of the owners of twothirds of the property within 400 feet of the proposed facility. 323 In a decision falling chronologically between these two, however, the Court sustained an ordinance which permitted property owners to waive a municipal restriction prohibiting the construction of billboards. 324 In its most recent decision, the Court upheld a city charter provision permitting a petition process by which a citywide referendum could be held on zoning changes and variances. The provision required a 55% approval vote in the referendum to sustain the commission’s decision, and the Court distinguished between delegating such authority to a small group of affected landowners and the people’s retention of the ultimate legislative power in themselves which for convenience they had delegated to a legislative body. 325 Estates, Succession, Abandoned Property.—The Due Process Clause does not prohibit a State from varying the rights of those receiving benefits under intestate laws. Thus, the Court held that the rights of an estate were not impaired where a New York Decedent Estate Law granted a surviving spouse the right to take as in intestacy, despite the fact that the spouse had waived any right to her husband’s estate before the enactment of the law. Because rights of succession to property are of statutory creation, the Court explained, New York could have conditioned any further exercise of testamentary power upon the giving of right of election to VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00060 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 AMENDMENT 14—RIGHTS GUARANTEED 1731 326 Irving Trust Co. v. Day, 314 U.S. 556, 564 (1942). 327 Demorest v. City Bank Co., 321 U.S. 36, 47–48 (1944). Under the peculiar facts of the case, however, the remainderman’s right had been created by judicial rules promulgated after the death of the decedent, so the case is not precedent for a broad rule of retroactivity. 328 Connecticut Mut. Life Ins. Co. v. Moore, 333 U.S. 541 (1948). Justices Jackson and Douglas dissented on the ground that New York was attempting to escheat unclaimed funds not actually or constructively located in New York, and which were the property of beneficiaries who may never have been citizens or residents of New York. 329 341 U.S. 428 (1951). the surviving spouse regardless of any waiver, however formally executed. 326 Even after the creation of a testamentary trust, a State retains the power to devise new and reasonable directions to the trustee to meet new conditions arising during its administration. For instance, the Great Depression resulted in the default of numerous mortgages which were held by trusts, which had the affect of putting an unexpected accumulation of real property into those trusts. Under these circumstance, the Court upheld the retroactive application of a statute reallocating distribution within these trusts, even where the administration of the estate had already begun, and the new statute had the effect of taking away a remainderman’s right to judicial review of the trustee’s computation of income. 327 The states have significant discretion to regulate abandoned property. For instance, states have several jurisdictional bases to allow for the lawful application of escheat and abandoned property laws to out-of-state corporations. Thus, application of New York’s Abandoned Property Law to New York residents’ life insurance policies, even when issued by foreign corporations, did not deprive such companies of property without due process, where the insured persons had continued to be New York residents and the beneficiaries were resident at the maturity date of the policies. The relationship between New York and its residents who abandon claims against foreign insurance companies, and between New York and foreign insurance companies doing business therein, is sufficiently close to give New York jurisdiction. 328 Or, in Standard Oil Co. v. New Jersey, 329 a divided Court held that due process is not violated by a state statute escheating shares of stock in a domestic corporation, including unpaid dividends, even though the last known owners were nonresidents and the stock was issued and the dividends held in another State. The State’s power over the debtor corporation gives it power to seize the debts or demands represented by the stock and dividends. VerDate Aug<10>2004 02:45 Sep 16, 2004 Jkt 077500 PO 00000 Frm 00061 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 1732 AMENDMENT 14—RIGHTS GUARANTEED 330 454 U.S. 516 (1982). 331 With respect to interests existing at the time of enactment, the statute provided a two-year grace period in which owners of mineral interests that were then unused and subject to lapse could preserve those interests by filing a claim in the recorder’s office. 332 The act provided a grace period and specified several actions which were sufficient to avoid extinguishment. With respect to interests existing at the time of enactment, the statute provided a two-year grace period in which owners of mineral interests that were then unused and subject to lapse could preserve those interests by filing a claim in the recorder’s office. 333 Generally, property owners are charged with maintaining knowledge of the legal conditions of property ownership. 334 454 U.S. at 538. The four dissenters thought that some specific notice was required for persons holding before enactment. Id. at 540. 335 See, e.g., Mugler v. Kansas, 123 U.S. 623, 661 (1887), and discussion supra under ‘‘The Development of Substantive Due Process.’’ A state’s wide discretion to define abandoned property and dispose of abandoned property can be seen in Texaco v. Short. 330 There, an Indiana statute was upheld which terminated interests in coal, oil, gas, or other minerals which had not been used in twenty years and which provided for reversion to the owner of the interest out of which the mining interests had been carved. The ‘‘use’’ of a mineral interest which could prevent its extinction included the actual or attempted extraction of minerals, the payment of rents or royalties, and any payment of taxes. Indeed, merely filing a claim with the local recorder would preserve the interest. 331 The statute provided no notice to owners of interests, however, save for its own publication, nor did it require surface owners to notify owners of mineral interests that the interests were about to expire. 332 By a narrow margin, the Court sustained the statute, holding that the State’s interest in encouraging production, securing timely notices of property ownership, and settling property titles provided a basis for enactment, and finding that due process did not require any actual notice to holders of unused mineral interests. 333 The State ‘‘may impose on an owner of a mineral interest the burden of using that interest or filing a current statement of interests’’ and it may similarly ‘‘impose on him the lesser burden of keeping informed of the use or nonuse of his own property.’’ 334 Health, Safety, and Morals Health.—Even under the narrowest concept of the police power as limited by substantive due process, it was generally conceded that states could exercise the power to protect the public health, safety, and morals. 335 For instance, an ordinance for incineration of garbage and refuse at a designated place as a means of protecting public health is not a taking of private property without just compensation, even though such garbage and refuse may have VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00062 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 AMENDMENT 14—RIGHTS GUARANTEED 1733 336 California Reduction Co. v. Sanitary Works, 199 U.S. 306 (1905). 337 Hutchinson v. City of Valdosta, 227 U.S. 303 (1913). 338 ‘‘The power of the State to . . . prevent the production within its borders of impure foods, unfit for use, and such articles as would spread disease and pestilence, is well established.’’ Sligh v. Kirkwood, 237 U.S. 52, 59–60 (1915). 339 Powell v. Pennsylvania, 127 U.S. 678 (1888); Magnano v. Hamilton, 292 U.S. 40 (1934). 340 North American Storage Co. v. City of Chicago, 211 U.S. 306 (1908). 341 Adams v. City of Milwaukee, 228 U.S. 572 (1913). 342 Baccus v. Louisiana, 232 U.S. 334 (1914). 343 Roschen v. Ward, 279 U.S. 337 (1929). 344 Minnesota ex rel. Whipple v. Martinson, 256 U.S. 41, 45 (1921). 345 Hutchinson Ice Cream Co. v. Iowa, 242 U.S. 153 (1916). 346 Hebe Co. v. Shaw, 248 U.S. 297 (1919). 347 Price v. Illinois, 238 U.S. 446 (1915). 348 Sage Stores Co. v. Kansas, 323 U.S. 32 (1944). Where health or fraud are not an issue, however, police power may be more limited. Thus, a statute forbidding the sale of bedding made with shoddy materials, even if sterilized and therefore harmless to health, was held to be arbitrary and therefore invalid Weaver v. Palmer Bros. Co., 270 U.S. 402 (1926). some elements of value for certain purposes. 336 Or, compelling property owners to connect with a publicly maintained system of sewers and enforcing that duty by criminal penalties does not violate the due process clause. 337 There are few constitutional restrictions on the extensive state regulations on the production and distribution of food and drugs. 338 Statutes forbidding or regulating the manufacture of oleomargarine have been upheld, 339 as have statutes ordering the destruction of unsafe food 340 or confiscation of impure milk, 341 notwithstanding that, in the latter cases, such articles had a value for purposes other than food. There also can be no question of the authority of the State, in the interest of public health and welfare, to forbid the sale of drugs by itinerant vendors 342 or the sale of spectacles by an establishment where a physician or optometrist is not in charge. 343 Nor is it any longer possible to doubt the validity of state regulations pertaining to the administration, sale, prescription, and use of dangerous and habit-forming drugs. 344 Equally valid as police power regulations are laws forbidding the sale of ice cream not containing a reasonable proportion of butter fat, 345 of condensed milk made from skimmed milk rather than whole milk, 346 or of food preservatives containing boric acid. 347 Similarly, a statute intended to prevent fraud and deception by prohibiting the sale of ‘‘filled milk’’ (milk to which has been added any fat or oil other than a milk fat) is valid, at least where such milk has the taste, consistency, and appearance of whole milk products. The Court reasoned that filled milk is inferior to whole milk in its nutritional content and cannot be served to children as a substitute for whole milk without producing a dietary deficiency. 348 VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00063 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 1734 AMENDMENT 14—RIGHTS GUARANTEED 349 ‘‘[O]n account of their well-known noxious qualities and the extraordinary evils shown by experience to be consequent upon their use, a State . . . [is competent] to prohibit [absolutely the] manufacture, gift, purchase, sale, or transportation of intoxicating liquors within its borders. . . .’’ Beer Co. v. Massachusetts, 97 U.S. 25, 33 (1878). See Mugler v. Kansas, 123 U.S. 623 (1887); Kidd v. Pearson, 128 U.S. 1 (1888); Purity Extract Co. v. Lynch, 226 U.S. 192 (1912); James Clark Distilling Co. v. Western Md. Ry., 242 U.S. 311 (1917); Barbour v. Georgia, 249 U.S. 454 (1919). 350 Mugler v. Kansas, 123 U.S. 623, 671 (1887). 351 Hawes v. Georgia, 258 U.S. 1 (1922); Van Oster v. Kansas, 272 U.S. 465 (1926). 352 Pierce Oil Corp. v. Hope, 248 U.S. 498 (1919). 353 Standard Oil Co. v. Marysville, 279 U.S. 582 (1929). 354 Barbier v. Connolly, 113 U.S. 27 (1885); Soon Hing v. Crowley, 113 U.S. 703 (1885). 355 Maguire v. Reardon, 225 U.S. 271 (1921). 356 Queenside Hills Co. v. Saxl, 328 U.S. 80 (1946). 357 Stephenson v. Binford, 287 U.S. 251 (1932). Even before the passage of the 21st Amendment, which granted states the specific authority to regulate alcoholic beverages, the Supreme Court had found that the states have significant authority in this regard. 349 A State may declare places where liquor is manufactured or kept to be common nuisances, 350 and may even subject an innocent owner to the forfeiture of his property if he allows it to be used for the illegal production or transportation of alcohol. 351 Safety.—Regulations designed to promote public safety are also well within a state’s authority to implement. For instance, various measures designed to reduce fire hazards have been upheld. These include municipal ordinances that prohibit the storage of gasoline within 300 feet of any dwelling, 352 require that all gas storage tanks with a capacity of more than ten gallons be buried at least three feet under ground, 353 or prohibit washing and ironing in public laundries and wash houses within defined territorial limits from 10 p.m. to 6 a.m. 354 A city’s demolition and removal of wooden buildings erected in violation of regulations was also consistent with the Fourteenth Amendment. 355 Construction of property in full compliance with existing laws, however, does not confer upon the owner an immunity against exercise of the police power. Thus, a 1944 amendment to a Multiple Dwelling Law, requiring installation of automatic sprinklers in lodging houses of non-fireproof construction, can be applied to a lodging house constructed in 1940, even though compliance entails an expenditure of $7,500 on a property worth only $25,000. 356 States exercise extensive regulation over transportation safety. Although state highways are used primarily for private purposes, they are public property, and the use of a highway for financial gain may be prohibited by the legislature or conditioned as it sees fit. 357 Consequently, a State may reasonably provide that intra- VerDate Aug<10>2004 02:45 Sep 16, 2004 Jkt 077500 PO 00000 Frm 00064 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 AMENDMENT 14—RIGHTS GUARANTEED 1735 358 Stanley v. Public Utilities Comm’n, 295 U.S. 76 (1935). 359 Stephenson v. Binford, 287 U.S. 251 (1932). But any attempt to convert private carriers into common carriers, Michigan Pub. Utils. Comm’n v. Duke, 266 U.S. 570 (1925), or to subject them to the burdens and regulations of common carriers, without expressly declaring them to be common carriers, is violative of due process. Frost Trucking v. Railroad Comm’n, 271 U.S. 583 (1926); Smith v. Cahoon, 283 U.S. 553 (1931). 360 Bradley v. Public Utils. Comm’n, 289 U.S. 92 (1933). 361 Accordingly, a statute limiting to 7,000 pounds the net load permissible for trucks is not unreasonable. Sproles v. Binford, 286 U.S. 374 (1932). 362 Inasmuch as it is the judgment of local authorities that such advertising affects public safety by distracting drivers and pedestrians, courts are unable to hold otherwise in the absence of evidence refuting that conclusion. Railway Express Agency v. New York, 336 U.S. 106 (1949). state carriers who have furnished adequate, responsible, and continuous service over a given route from a specified date in the past shall be entitled to licenses as a matter of right, but that issuance to those whose service began later shall depend upon public convenience and necessity. 358 A state may require private contract carriers for hire to obtain a certificate of convenience and necessity, and decline to grant one if the service of common carriers is impaired thereby. A state may also fix minimum rates applicable to such private carriers, which are not less than those prescribed for common carriers, as a valid as a means of conserving highways. 359 In the absence of legislation by Congress, a State may, in protection of the public safety, deny an interstate motor carrier the use of an already congested highway. 360 In exercising its authority over its highways, a State is not limited to the raising of revenue for maintenance and reconstruction or to regulating the manner in which vehicles shall be operated, but may also prevent the wear and hazards due to excessive size of vehicles and weight of load. 361 No less constitutional is a municipal traffic regulation which forbids the operation in the streets of any advertising vehicle, excepting vehicles displaying business notices or advertisements of the products of the owner and not used mainly for advertising; and such regulation may be validly enforced to prevent an express company from selling advertising space on the outside of its trucks. 362 A State may also provide that a driver who fails to pay a judgment for negligent operation shall have his license and registration suspended for three years, unless, in the meantime, the judgment is satisfied or dis- VerDate Aug<10>2004 06:58 Sep 16, 2004 Jkt 077500 PO 00000 Frm 00065 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 1736 AMENDMENT 14—RIGHTS GUARANTEED 363 Reitz v. Mealey, 314 U.S. 33 (1941); Kesler v. Department of Pub. Safety, 369 U.S. 153 (1962). But see Perez v. Campbell, 402 U.S. 637 (1971). Procedural due process must, of course be observed. Bell v. Burson, 402 U.S. 535 (1971). A nonresident owner who loans his automobile in another state, by the law of which he is immune from liability for the borrower’s negligence and who was not in the state at the time of the accident, is not subjected to any unconstitutional deprivation by a law thereof, imposing liability on the owner for the negligence of one driving the car with the owner’s permission. Young v. Masci, 289 U.S. 253 (1933). 364 Ex parte Poresky, 290 U.S. 30 (1933). See also Packard v. Banton, 264 U.S. 140 (1924); Sprout v. South Bend, 277 U.S. 163 (1928); Hodge Co. v. Cincinnati, 284 U.S. 335 (1932); Continental Baking Co. v. Woodring, 286 U.S. 352 (1932). 365 L’Hote v. New Orleans, 177 U.S. 587 (1900). 366 Ah Sin v. Wittman, 198 U.S. 500 (1905). 367 Marvin v. Trout, 199 U.S. 212 (1905). 368 Bennis v. Michigan, 516 U.S. 442 (1996). 369 Stone v. Mississippi, 101 U.S. 814 (1880); Douglas v. Kentucky, 168 U.S. 488 (1897). 370 See, e.g., Snowden v. Hughes, 321 U.S. 1 (1944) (right to become a candidate for state office is a privilege only, hence an unlawful denial of such right is not a denial of a right of ‘‘property’’). Cases under the equal protection clause now mandate a different result. See Holt Civic Club v. City of Tuscaloosa, 439 U.S. 60, 75 (1978) (seeming to conflate due process and equal protection standards in political rights cases). 371 Angle v. Chicago, St. Paul, M. & D. Ry., 151 U.S. 1 (1894). 372 Coombes v. Getz, 285 U.S. 434, 442, 448 (1932). charged. 363 Compulsory automobile insurance is so plainly valid as to present no federal constitutional question. 364 Morality.—Legislatures have wide discretion in regulating ‘‘immoral’’ activities. Thus, legislation suppressing prostitution 365 or gambling 366 will be upheld by the Court as within the police power of a State. Accordingly, a state statute may provide that judgment against a party to recover illegal gambling winnings may be enforced by a lien on the property of the owner of the building where the gambling transaction was conducted when the owner knowingly consented to the gambling. 367 Similarly, a court may order a car used in an act of prostitution forfeited as a public nuisance, even if this works a deprivation on an innocent joint owner of the car. 368 For the same reason, lotteries, including those operated under a legislative grant, may be forbidden, regardless of any particular equities. 369 Vested and Remedial Rights As the Due Process Clause protects against arbitrary deprivation of ‘‘property,’’ privileges or benefits that constitute property are entitled to protection. 370 Because an existing right of action to recover damages for an injury is property, that right of action is protected by the clause. 371 Thus, where repeal of a provision that made directors liable for moneys embezzled by corpor

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