Unpopular government in the United States

by Albert Martin Kales

[21] Much of the argument in this volume is in support of the Short Ballot movement. It is only fair to say, however, that the leaders of this movement in the National Short Ballot Organization dissent from the suggestions put forward in this chapter as to the need of special protection to property interests, and the methods suggested of working out such special protection are, therefore, no part of the Short Ballot doctrine.

[22] Hurtado v. California, 110 U.S. 516.

[23] James Bradley Thayer, “The Origin and Scope of the American Doctrine of Constitutional Law,” 7 Harv. Law Rev., 129, 139 ff.

[24] “The validity of a law ought not, then, to be questioned, unless it is so obviously repugnant to the constitution, that when pointed out by the judges, all men of sense and reflection in the community may perceive the repugnancy.”—Per Chancellor Waties in Adm’rs of Byrne v. Adm’rs of Stewart, 3 Des. 466 (South Carolina, 1812).

[25] The results reached by the Illinois Supreme Court, especially when contrasted with those reached by the United States Supreme Court, exhibit an extreme exercise of the power of courts to hold legislation void because it takes the property or liberty of individuals without due process of law.

Since 1886 the Illinois Supreme Court has held void acts of the legislature compelling mine-owners to weigh coal mined and to pay the miners on the basis of such weight, because such acts took the mine-owner’s liberty and property without due process of law contrary to the provisions of the state constitution: Millett v. The People, 117 Ill. 294 (1896); Ramsey v. The People, 142 Ill. 380 (1892); Harding v. The People, 160 Ill. 459 (1896). The United States Supreme Court, however, has held that a similar act from Arkansas did not violate the “life, liberty, or property” clause of the fourteenth amendment: McLean v. Arkansas, 211 U.S. 539 (1908).

Since 1892 the Illinois Supreme Court has held void state acts regulating the keeping of truck stores by owners of coal mines and factories, because they deprived such owners of liberty and property without due process of law, contrary to the state constitution: Frorer v. The People, 141 Ill. 171 (1892); Kellyville Coal Co. v. Harrier, 207 Ill. 624 (1904). In 1886 the Pennsylvania Supreme Court held void an act which prohibited the payment of wages to miners in anything but money: Godcharles v. Wigeman, 113 Pa. 431 (1886). Yet the United States Supreme Court holds that such acts are not in violation of the “life, liberty, or property” clause of the fourteenth amendment: Knoxville Coal Co. v. Harrison, 183 U.S. 13 (1901).

In 1896 the Illinois Supreme Court held void the barbers’ Sunday law, which forbade the employment of barbers on Sunday, because the act violated the “life, liberty, or property” clause of the state constitution: Eden v. The People, 161 Ill. 296 (1896). But the United States Supreme Court sustained a like act from Minnesota, declaring that it did not violate the “life, liberty, or property” clause of the federal constitution: Petit v. Minnesota, 177 U.S. 164 (1898).

In 1900 the Illinois Supreme Court held void the state flag law which prohibited the use of the American flag for advertising purposes, because it deprived advertisers of liberty and property without due process of law, contrary to the provision of the state constitution: Ruhstrat v. The People, 185 Ill. 133 (1900). The United States Supreme Court, however, sustained a similar act from Nebraska holding that it was not in violation of the “life, liberty, or property” clause of the fourteenth amendment: Halter v. Nebraska, 205 U.S. 34 (1907).

In 1908 the Illinois Supreme Court held void the bulk sales acts regulating sales of stocks of goods in bulk otherwise than in the usual course of trade, because it violated the “life, liberty, or property” clause of the state constitution: Off &. Co. v. Morehead, 235 Ill. 40 (1908). But the United States Supreme Court has held similar statutes from Connecticut and Michigan valid and not in violation of the “life, liberty, or property” clause of the fourteenth amendment: Lemieux v. Young, 211 U.S. 489 (1908); Kidd, Dater & Price Co. v. Musselman Grocer Co., 217 U.S. 461 (1910).