第13章

It was long ago held by the Supreme Court that the legislature had the power to control and regulate a business affected with "a public use." 63 It is held by the Supreme Court today that there is a like power where the business is affected with "a public interest." 64 The business of fire insurance has been brought within that category.65 A recent decision of an inferior court has put within the same category the business of the sale of coal where the emergency of war or of the dislocation that results from war brings hardship and oppression in the train of unfettered competition.66 The advocates of the recent housing statutes in New York 67 profess to find in like principles the justification for new restraints upon ancient rights of property.I do not suggest any opinion upon the question whether those acts in any of their aspects may be held to go too far.I do no more than indicate the nature of the problem, and the method and spirit of approach.68

Property, like liberty, though immune under the Constitution from destruction, is not immune from regulation essential for the common good.What that regulation shall be, every generation must work out for itself.69 The generation which gave us Munn v.Illinois, 94 U.S.113 (1876), and like cases, asserted the right of regulation whenever business was "affected with a public use." The phrase in its application meant little more than if it said whenever the social need shall be imminent and pressing.Such a formulation of the principle may have been adequate for the exigencies of the time.Today there is a growing tendency in political and juristic thought to probe the principle more deeply and formulate it more broadly.

Men are saying today that property, like every other social institution, has a social function to fulfill.Legislation which destroys the institution is one thing.Legislation which holds it true to its function is quite another.That is the dominant theme of a new and forceful school of publicists and jurists on the continent of Europe, in England, and even here.Among the French, one may find the thought developed with great power and suggestiveness by Duguit in his "Transformations générales du droit privé depuis le Code Napoléon." 70 It is yet too early to say how far this new conception of function and its obligations will gain a lodgment in our law.Perhaps we shall find in the end that it is little more than Munn v.Illinois in the garb of a new philosophy.I do not attempt to predict the extent to which we shall adopt it, or even to assert that we shall adopt it at all.Enough for my purpose at present that new times and new manners may call for new standards and new rules.

The courts, then, are free in marking the limits of the individual's immunities to shape their judgments in accordance with reason and justice.

That does not mean that in judging the validity of statutes they are free to substitute their own ideas of reason and justice for those of the men and women whom they serve.Their standard must be an objective one.In such matters, the thing that counts is not what I believe to be right.It is what I may reasonably believe that some other man of normal intellect and conscience might reasonably look upon as right."While the courts must exercise a judgment of their own, it by no means is true that every law is void which may seem to the judges who pass upon it excessive, unsuited to its ostensible end, or based upon conceptions of morality with which they disagree.Considerable latitude must be allowed for difference of view as well as for possible peculiar conditions which this court can know but imperfectly, if at all.

Otherwise a constitution, instead of embodying only relatively fundamental rules of right, as generally understood by all English-speaking communities, would become the partisan of a particular set of ethical or economical opinions, which by no means are held semper ubique et ab omnibus." 71 Here as so often in the law, "the standard of conduct is external, and takes no account of the personal equation of the man concerned." 72 "The interpreter," says Brütt, 73 "must above all things put aside his estimate of political and legislative values, and must endeavor to ascertain in a purely objective spirit what ordering of the social life of the community comports best with the aim of the law in question in the circumstances before him." Some fields of the law there are, indeed, where there is freer scope for subjective vision.

Of these we shall say more hereafter.The personal element, whatever its scope in other spheres, should have little, if any, sway in determining the limits of legislative power.One department of the government may not force upon another its own standards of propriety."It must be remembered that legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as courts." 74