The Essentials of American Constitutional LawThorpe, Francis Newton
History
The Essentials of American Constitutional Law
Thorpe, Francis Newton
Constitutional law -- United States
They belong emphatically to that class of objects which demand the
application of the maxim, _salus populi suprema lex_; and they are
to be attained and provided for by such appropriate means as the
legislative discretion may devise. That discretion can no more be
bargained away than the power itself.[194]
In exercise of this police power the Legislature prohibits the
manufacture and sale of malt liquor. Such manufacture or sale is not
an exercise of a right by contract, and prohibition of the business
is not legislation impairing the obligation of a contract.[195] So
too, a provision in a State constitution forbidding lotteries and
gift enterprises within a commonwealth, and revoking lottery charters
theretofore granted, is not a law impairing the obligation of a
contract.[196] The principle followed here is expressed by the Chief
Justice (Waite): “No legislature can bargain away the public health or
the public morals.” Thus it may be accepted as settled constitutional
law that the people in their sovereign capacity and through their
properly constituted agencies may exercise powers as the public good
may require.[197] But corporations and private persons possessing and
exercising rights and franchises vested in them by law and possessing
property rights by contract are entitled to compensation when, under
the State power of eminent domain, such vested rights are taken
away.[198]
76. Whether property or employment possesses the qualities or
attributes of a public use will largely determine the character of
legislative control for the purpose of safe-guarding the public against
“danger, injustice, and oppression”; the police power of the State is
here paramount.[199]
77. The principle involved in the obligation of contracts is clearly
set forth by the Supreme Court:
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