GPO-CONAN-2017-10-15.pdf

S 262 30203 1932 justice brandeis had also observed

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U.S. 262, 302–03 (1932), Justice Brandeis had also observed: “The notion of a dis- tinct category of business ‘affected with a public interest’ employing property ‘de- voted to a public use,’ rests upon historical error . . . . In my opinion, the true prin- ciple is that the State’s power extends to every regulation of any business reasonably required and appropriate for the public protection. I find in the due process clause no other limitation upon the character or the scope of regulation permissible.” 1870 AMENDMENT 14—RIGHTS GUARANTEED
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interference with individual liberty.” 153 Conceding that “the dairy industry is not, in the accepted sense of the phrase, a public util- ity,” that is, a business “affected with a public interest”, the Court in effect declared that price control is to be viewed merely as an exercise by the government of its police power, and as such is sub- ject only to the restrictions that due process imposes on arbitrary interference with liberty and property. “The due process clause makes no mention of sales or of prices . . . . 154 Having thus concluded that it is no longer the nature of the business that determines the validity of a price regulation, the Court had little difficulty in upholding a state law prescribing the maxi- mum commission that private employment agencies may charge. Re- jecting contentions that the need for such protective legislation had not been shown, the Court, in Olsen v. Nebraska ex rel. Western Ref- erence and Bond Ass’n 155 held that differences of opinion as to the wisdom, need, or appropriateness of the legislation “suggest a choice which should be left to the States;” and that there was “no neces- sity for the State to demonstrate before us that evils persist de- spite the competition” between public, charitable, and private em- ployment agencies. 156 Substantive Review of Price Controls. —Ironically, private busi- nesses, once they had been found subject to price regulation, seemed to have less protection than public entities. Thus, unlike operators of public utilities who, in return for a government grant of virtu- ally monopolistic privileges must provide continuous service, propri- etors of other businesses receive no similar special advantages and accordingly are unrestricted in their right to liquidate and close. Owners of ordinary businesses, therefore, are at liberty to escape the consequences of publicly imposed charges by dissolution, and 153 291 U.S. at 502. Older decisions overturning price regulation were now viewed as resting upon this basis, i.e. , that due process was violated because the laws were arbitrary in their operation and effect. 154 291 U.S. at 531, 532. Justice McReynolds, dissenting, labeled the controls imposed by the challenged statute as a “fanciful scheme . . . to protect the farmer against undue exactions by prescribing the price at which milk disposed of by him at will may be resold!” 291 U.S. at 558. Intimating that the New York statute was as efficacious as a safety regulation that required “householders to pour oil on their
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