ĐĎॹá>ţ˙ ˇšţ˙˙˙ľś˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙ěĽÁ7 đżĆwbjbjUU &7|7|Ćs˙˙˙˙˙˙lBBBBBBBVR,R,R,R,f,”V.ö--------–-˜-˜-˜-˜-˜-˜-$ / -1Vź-B-----ź--BB--Ń-----B-B-–---–---–-BB–--ú, C´tžżVü*R,-–-–-ç-0.–-ƒ1-ƒ1–--VVBBBBŮ[DOCID:amdt14-5] From the U.S. Government Printing Office via GPO Access [U.S. Constitution - Analysis and Interpretation] [14th Amendment--Rights Guaranteed...] [Page 1572-1693] [[Page 1572]] FOURTEENTH AMENDMENT SECTION 1. RIGHTS GUARANTEED: DUE PROCESS OF LAW The Development of Substantive Due Process Although many years after ratification the Court ventured the not very informative observation that the Fourteenth Amendment ``operates to extend . . . the same protection against arbitrary state legislation, affecting life, liberty and property, as is offered by the Fifth Amendment,''\34\ and that ``ordinarily if an act of Congress is valid under the Fifth Amendment it would be hard to say that a state law in like terms was void under the Fourteenth,''\35\ the significance of the due process clause as a restraint on state action appears to have been grossly underestimated by litigants no less than by the Court in the years immediately following its adoption. From the outset of our constitutional history due process of law as it occurs in the Fifth Amendment had been recognized as a restraint upon government, but, with the conspicuous exception of the Dred Scott decision,\36\ only in the narrower sense that a legislature must provide ``due process for the enforcement of law.'' \34\Hibben v. Smith, 191 U.S. 310, 325 (1903). \35\Carroll v. Greenwich Ins. Co., 199 U.S. 401, 410 (1905). See also French v. Barber Asphalt Paving Co., 181 U.S. 324, 328 (1901). \36\Scott v. Sandford, 60 U.S. (19 How.) 393, 450 (1857), is the exception. --------------------------------------------------------------------------- Thus, in the Slaughter-House Cases,\37\ in which the clause was invoked by a group of butchers challenging the validity of a Louisiana statute which conferred upon one corporation the exclusive privilege of butchering cattle in New Orleans, the Court declared that the prohibition against a deprivation of property ``has been in the Constitution since the adoption of the Fifth Amendment, as a restraint upon the Federal power. It is also to be found in some forms of expression in the constitution of nearly all the States, as a restraint upon the power of the States. . . . We are not without judicial interpretation, therefore, both State and National, of the meaning of this clause. And it is sufficient to say that under no construction of that provision that we have ever seen, or any that we deem admissible, can the restraint imposed by the State of Louisiana upon the exercise of their trade by the butchers of New Orleans be held to be a deprivation of property within the meaning of that provision.'' Four years later, in Munn v. Illinois,\38\ the Court again refused to interpret the due process clause as invalidating [[Page 1573]] state legislation regulating the rates charged for the transportation and warehousing of grain. Rejecting contentions that such legislation effected an unconstitutional deprivation of property by preventing the owner from earning a reasonable compensation for its use and by transferring to the public an interest in a private enterprise, Chief Justice Waite emphasized that ``the great office of statutes is to remedy defects in the common law as they are developed. . . . We know that this power [of rate regulation] may be abused; but that is no argument against its existence. For protection against abuses by legislatures the people must resort to the polls, not to the courts.'' \37\83 U.S. (16 Wall.) 36, 80-81 (1873). \38\94 U.S. 113, 134 (1877). --------------------------------------------------------------------------- Deploring such attempts, nullified consistently in the preceding cases, to convert the due process clause into a substantive restraint on the powers of the States, Justice Miller in Davidson v. New Orleans,\39\ obliquely counseled against a departure from the conventional application of the clause, albeit he acknowledged the difficulty of arriving at a precise, all-inclusive definition thereof. ``It is not a little remarkable,'' he observed, ``that while this provision has been in the Constitution of the United States, as a restraint upon the authority of the Federal government, for nearly a century, and while, during all that time, the manner in which the powers of that government have been exercised has been watched with jealousy, and subjected to the most rigid criticism in all its branches, this special limitation upon its powers has rarely been invoked in the judicial forum or the more enlarged theatre of public discussion. But while it has been part of the Constitution, as a restraint upon the power of the States, only a very few years, the docket of this court is crowded with cases in which we are asked to hold that state courts and state legislatures have deprived their own citizens of life, liberty, or property without due process of law. There is here abundant evidence that there exists some strange misconception of the scope of this provision as found in the Fourteenth Amendment. In fact, it would seem, from the character of many of the cases before us, and the arguments made in them, that the clause under consideration is looked upon as a means of bringing to the test of the decision of this court the abstract opinions of every unsuccessful litigant in a State court of the justice of the decision against him, and of the merits of the legislation on which such a decision may be founded. If, therefore, it were possible to define what it is for a State to deprive a person of life, liberty, or property without due process of law, in terms which would cover every exercise of power thus forbidden to the State, and exclude [[Page 1574]] those which are not, no more useful construction could be furnished by this or any other court to any part of the fundamental of law. \39\96 U.S. 97, 103-04 (1878). --------------------------------------------------------------------------- ``But, apart from the imminent risk of a failure to give any definition which would be at once perspicuous, comprehensive, and satisfactory, there is wisdom . . . in the ascertaining of the intent and application of such an important phrase in the Federal Constitution, by the gradual process of judicial inclusion and exclusion, as the cases presented for decision shall require. . . .'' A bare half-dozen years later, in again reaching a result in harmony with past precedents, the Justices gave fair warning of the imminence of a modification of their views. After noting that the due process clause, by reason of its operation upon ``all the powers of government, legislative as well as executive and judicial,'' could not be appraised solely in terms of the ``sanction of settled usage,'' Justice Mathews, speaking for the Court in Hurtado v. California,\40\ declared that ``[a]rbitrary power, enforcing its edicts to the injury of the persons and property of its subjects, is not law, whether manifested as the decree of a personal monarch or of an impersonal multitude. And the limitations imposed by our constitutional law upon the action of the governments, both state and national, are essential to the preservation of public and private rights, notwithstanding the representative character of our political institutions. The enforcement of these limitations by judicial process is the device of self-governing communities to protect the rights of individuals and minorities, as well against the power of numbers, as against the violence of public agents transcending the limits of lawful authority, even when acting in the name and wielding the force of the government.'' Thus were the States put on notice that every species of state legislation, whether dealing with procedural or substantive rights, was subject to the scrutiny of the Court when the question of its essential justice was raised. \40\110 U.S. 516, 528, 532, 536 (1884). --------------------------------------------------------------------------- What induced the Court to dismiss its fears of upsetting the balance in the distribution of powers under the federal system and to enlarge its own supervisory powers over state legislation was the increasing number of cases seeking protection of property rights against the remedial social legislation States were enacting in the wake of industrial expansion. At the same time, the added emphasis on the due process clause afforded the Court an opportunity to compensate for its earlier virtual nullification of the privileges and immunities clause of the Amendment. So far as such modification of its position needed to be justified in legal terms, theories concerning the relation of government to private rights were available [[Page 1575]] to demonstrate the impropriety of leaving to the state legislatures the same ample range of police power they had enjoyed prior to the Civil War. Preliminary to this consummation, however, the Slaughter-House Cases and Munn v. Illinois had to be overruled at least in part, and the views of the dissenting Justices in those cases converted into majority doctrine. About twenty years were required to complete this process, in the course of which the restricted view of the police power advanced by Justice Field in his dissent in Munn v. Illinois,\41\ namely, that it is solely a power to prevent injury, was in effect ratified by the Court itself. This occurred in Mugler v. Kansas,\42\ where the power was defined as embracing no more than the power to promote public health, morals, and safety. During the same interval, ideas embodying the social compact and natural rights, which had been espoused by Justice Bradley in his dissent in the Slaughter-House Cases,\43\ had been transformed tentatively into constitutionally enforceable limitations upon government.\44\ The consequence was that the States in exercising their police powers could foster only those purposes of health, morals, and safety which the Court had enumerated, and could employ only such means as would not unreasonably interfere with the fundamentally natural rights of liberty and property, which Justice Bradley had equated with freedom to pursue a lawful calling and to make contracts for that purpose.\45\ \41\94 U.S. 113, 141-48 (1877). \42\123 U.S. 623, 661 (1887). \43\83 U.S. (16 Wall.) 36, 113-14, 116, 122 (1873). \44\Loan Association v. Topeka, 87 U.S. (20 Wall.) 655, 662 (1875). ``There are . . . rights in every free government beyond the control of the State. . . . There are limitations on [governmental power] which grow out of the essential nature of all free governments. Implied reservations of individual rights, without which the social compact could not exist. . . .'' \45\``Rights to life, liberty, and the pursuit of happiness are equivalent to the rights of life, liberty, and property. These are fundamental rights which can only be taken away by due process of law, and which can only be interfered with, or the enjoyment of which can only be modified, by lawful regulations necessary or proper for the mutual good of all. . . . This right to choose one's calling is an essential part of that liberty which it is the object of government to protect; and a calling, when chosen, is a man's property right. . . . A law which prohibits a large class of citizens from adopting a lawful employment, or from following a lawful employment previously adopted, does deprive them of liberty as well as property, without due process of law.'' Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 116, 122 (1873) (Justice Bradley dissenting). --------------------------------------------------------------------------- So having narrowed the scope of the state's police power in deference to the natural rights of liberty and property, the Court next proceeded to read into the concepts currently accepted theories of laissez faire economics, reinforced by the doctrine of Social Darwinism as elaborated by Herbert Spencer, to the end that ``liberty,'' in [[Page 1576]] particular, became synonymous with governmental hands-off in the field of private economic relations. In Budd v. New York,\46\ Justice Brewer in dictum declared: ``The paternal theory of government is to me odious. The utmost possible liberty to the individual, and the fullest possible protection to him and his property, is both the limitation and duty of government.'' And to implement this point of view the Court next undertook to water down the accepted maxim that a state statute must be presumed to be valid until clearly shown to be otherwise.\47\ The first step was taken with opposite intention. This occurred in Munn v. Illinois,\48\ where the Court, in sustaining the legislation before it, declared: ``For our purposes we must assume that, if a state of facts could exist that would justify such legislation, it actually did exist when the statute now under consideration was passed.'' Ten years later, in Mugler v. Kansas,\49\ this procedure was improved upon, and a state- wide anti-liquor law was sustained on the basis of the proposition that deleterious social effects of the excessive use of alcoholic liquors were sufficiently notorious for the Court to be able to take notice of them, that is to say, for the Court to review and appraise the consideration which had induced the legislature to enact the statute in the first place.\50\ However, in Powell v. Pennsylvania,\51\ decided the following year, the Court, confronted with a similar act involving oleomargarine, concerning which it was unable to claim a like measure of common knowledge, fell back upon the doctrine of presumed validity and sustained the measure, declaring that ``it does not appear upon the face of the statute, or from any of the facts of which the Court must take judicial cognizance, that it infringes rights secured by the fundamental law.'' \46\143 U.S. 517, 551 (1892). \47\See Fletcher v. Peck, 10. U.S. (6 Cr.) 87, 128 (1810). \48\94 U.S. 113, 123, 182 (1877). \49\123 U.S. 623 (1887). \50\Id. at 662. ``We cannot shut out of view the fact, within the knowledge of all, that the public health, the public morals, and the public safety, may be endangered by the general use of intoxicating drinks; nor the fact . . . that . . . pauperism, and crime . . . are, in some degree, at least, traceable to this evil.'' \51\127 U.S. 678, 685 (1888). --------------------------------------------------------------------------- In contrast to the presumed validity rule, under which the Court ordinarily is not obliged to go beyond the record of evidence submitted by the litigants in determining the validity of a statute, the judicial notice principle, as developed in Mugler v. Kansas, carried the inference that unless the Court, independently of the record, is able to ascertain the existence of justifying facts accessible to it by the rules governing judicial notice, it will be obliged to invalidate a police power regulation as bearing no reasonable or adequate relation to the purposes to be subserved by the latter; [[Page 1577]] namely, health, morals, or safety. For appraising state legislation affecting neither liberty nor property, the Court found the rule of presumed validity quite serviceable, but for invalidating legislation constituting governmental interference in the field of economic relations, and, more particularly, labor-management relations, the Court found the principle of judicial notice more advantageous. This advantage was enhanced by the disposition of the Court, in litigation embracing the latter type of legislation, to shift the burden of proof from the litigant charging unconstitutionality to the State seeking enforcement. To the State was transferred the task of demonstrating that a statute interfering with the natural right of liberty or property was in fact ``authorized'' by the Constitution, and not merely that the latter did not expressly prohibit enactment of the same. In 1934 the Court in Nebbia v. New York\52\ discarded this approach to economic legislation, and has not since returned to it. The modern approach was evidenced in a 1955 decision reversing a lower court's judgment invalidating a state statutory scheme regulating the sale of eyeglasses to the advantage of ophthalmologists and optometrists in private professional practice and adversely to opticians and to those employed by or using space in business establishments. ``The day is gone when this Court uses the Due Process Clause of the Fourteenth Amendment to strike down state laws, regulatory of business and industrial conditions, because they may be unwise, improvident, or out of harmony with a particular school of thought. . . . We emphasize again what Chief Justice Waite said in Munn v. Illinois, 94 U.S. 113, 134, `For protection against abuses by legislatures the people must resort to the polls, not to the courts.'''\53\ Yet the Court went on to assess the reasons which might have justified the legislature in prescribing the regulation at issue, leaving open the possibility that some regulation might be found unreasonable.\54\ More recent decisions, however, have limited inquiry to whether the legislation is arbitrary or irrational, and have not addressed ``reasonableness.''\55\ \52\291 U.S. 502 (1934). \53\Williamson v. Lee Optical Co., 348 U.S. 483, 488 (1955). \54\Id. at 487, 491. \55\The Court has pronounced a strict ``hands-off'' standard of judicial review, whether of congressional or state legislative efforts to structure and accommodate the burdens and benefits of economic life. Such legislation is to be ``accorded the traditional presumption of constitutionality generally accorded economic regulations'' and is to be ``upheld absent proof of arbitrariness or irrationality on the part of Congress.'' That the accommodation among interests which the legislative branch has struck ``may have profound and far-reaching consequences . . . provides all the more reason for this Court to defer to the congressional judgment unless it is demonstrably arbitrary or irrational.'' Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 83-84 (1978). See also Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 14-20 (1976); Hodel v. Indiana, 452 U.S. 314, 333 (1981); New Motor Vehicle Bd. v. Orrin W. Fox Co., 439 U.S. 96, 106-08 (1978); Exxon Corp. v. Governor of Maryland, 437 U.S. 117, 124-25 (1978); Brotherhood of Locomotive Firemen v. Chicago, R.I. & P. R.R., 393 U.S. 129, 143 (1968); Ferguson v. Skrupa, 372 U.S. 726, 730, 733 (1963). --------------------------------------------------------------------------- [[Page 1578]] ``Persons'' Defined.--Notwithstanding the historical controversy that has been waged concerning whether the framers of the Fourteenth Amendment intended the word ``person'' to mean only natural persons, or whether the word was substituted for the word ``citizen'' with a view to protecting corporations from oppressive state legislation,\56\ the Supreme Court, as early as the Granger Cases,\57\ decided in 1877, upheld on the merits various state laws without raising any question as to the status of railway corporation plaintiffs to advance due process contentions. There is no doubt that a corporation may not be deprived of its property without due process of law,\58\ and although prior decisions had held that the ``liberty'' guaranteed by the Fourteenth Amendment is the liberty of natural, not artificial, persons,\59\ nevertheless a newspaper corporation was sustained, in 1936, in its objection that a state law deprived it of liberty of press.\60\ As to the natural persons protected by the due process clause, these include all human beings regardless of race, color, or citizenship.\61\ \56\See Graham, The ``Conspiracy Theory'' of the Fourteenth Amendment, 47 Yale L. J. 371 (1938). \57\Munn v. Illinois, 94 U.S. 113 (1877). In a case arising under the Fifth Amendment, decided almost at the same time, the Court explicitly declared the United States ``equally with the States . . . are prohibited from depriving persons or corporations of property without due process of law.'' Sinking Fund Cases, 99 U.S. 700, 718-19 (1879). \58\Smyth v. Ames, 169 U.S. 466, 522, 526 (1898); Kentucky Co. v. Paramount Exch., 262 U.S. 544, 550 (1923); Liggett Co. v. Baldridge, 278 U.S. 105 (1928). \59\Northwestern Life Ins. Co. v. Riggs, 203 U.S. 243, 255 (1906); Western Turf Ass'n v. Greenberg, 204 U.S. 359, 363 (1907); Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925). Earlier, in Northern Securities Co. v. United States, 193 U.S. 197, 362 (1904), a case interpreting the federal antitrust law, Justice Brewer, in a concurring opinion, had declared that ``a corporation . . . is not endowed with the inalienable rights of a natural person.'' \60\Grosjean v. American Press Co., 297 U.S. 233, 244 (1936) (``a corporation is a `person' within the meaning of the equal protection and due process of law clauses''). In First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765 (1978), faced with the validity of state restraints upon expression by corporations, the Court did not determine that corporations have First Amendment liberty rights--and other constitutional rights--but decided instead that expression was protected, irrespective of the speaker, because of the interests of the listeners. See id. at 778 n.14 (reserving question). But see id. at 809, 822 (Justices White and Rehnquist dissenting) (corporations as creatures of the state have the rights state gives them). \61\Yick Wo v. Hopkins, 118 U.S. 356 (1886); Terrace v. Thompson, 263 U.S. 197, 216 (1923). See Hellenic Lines v. Rhodetis, 398 U.S. 306, 309 (1970). --------------------------------------------------------------------------- Ordinarily, the mere interest of an official as such, in contrast to an actual injury sustained by a natural or artificial person through invasion of personal or property rights, has not been [[Page 1579]] deemed adequate to enable him to invoke the protection of the Fourteenth Amendment against state action.\62\ Similarly, municipal corporations are viewed as having no standing ``to invoke the provisions of the Fourteenth Amendment in opposition to the will of their creator,'' the State.\63\ However, state officers are acknowledged to have an interest, despite their not having sustained any ``private damage,'' in resisting an ``endeavor to prevent the enforcement of laws in relation to which they have official duties,'' and, accordingly, may apply to federal courts for the ``review of decisions of state courts declaring state statutes which [they] seek to enforce to be repugnant to the'' Fourteenth Amendment.\64\ \62\Pennie v. Reis, 132 U.S. 464 (1889); Taylor and Marshall v. Beckham (No. 1), 178 U.S. 548 (1900); Tyler v. Judges of Court of Registration, 179 U.S. 405, 410 (1900); Straus v. Foxworth, 231 U.S. 162 (1913); Columbus & G. Ry. v. Miller, 283 U.S. 96 (1931). \63\City of Pawhuska v. Pawhuska Oil Co., 250 U.S. 394 (1919); City of Trenton v. New Jersey, 262 U.S. 182 (1923); Williams v. Mayor of Baltimore, 289 U.S. 36 (1933). But see Madison School Dist. v. WERC, 429 U.S. 167, 175 n.7 (1976) (reserving question whether municipal corporation as an employer has a First Amendment right assertable against State). \64\Coleman v. Miller, 307 U.S. 433, 441, 442, 443, 445 (1939); Boynton v. Hutchinson Gas Co., 291 U.S. 656 (1934); South Carolina Hwy. Dept. v. Barnwell Bros., 303 U.S. 177 (1938). The converse is not true, however, and the interest of a state official in vindicating the Constitution gives him no legal standing to attack the constitutionality of a state statute in order to avoid compliance with it. Smith v. Indiana, 191 U.S. 138 (1903); Braxton County Court v. West Virginia, 208 U.S. 192 (1908); Marshall v. Dye, 231 U.S. 250 (1913); Stewart v. Kansas City, 239 U.S. 14 (1915). See also Coleman v. Miller, 307 U.S. 433, 437-46 (1939). --------------------------------------------------------------------------- Police Power Defined and Limited.--The police power of a State today embraces regulations designed to promote the public convenience or the general prosperity as well as those to promote public safety, health, and morals, and is not confined to the suppression of what is offensive, disorderly, or unsanitary, but extends to what is for the greatest welfare of the state.\65\ \65\Long ago Chief Justice Marshall described the police power as ``that immense mass of legislation, which embraces every thing within the territory of a State, not surrendered to the general government.'' Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 202 (1824). See California Reduction Co. v. Sanitary Works, 199 U.S. 306, 318 (1905); Chicago B. & Q. Ry. v. Drainage Comm'rs, 200 U.S. 561, 592 (1906); Bacon v. Walker, 204 U.S. 311 (1907); Eubank v. Richmond, 226 U.S. 137 (1912); Schmidinger v. Chicago, 226 U.S. 578 (1913); Sligh v. Kirkwood, 237 U.S. 52, 58-59 (1915); Nebbia v. New York, 291 U.S. 502 (1934); Nashville, C. & St. L. Ry. v. Walters, 294 U.S. 405 (1935). See also Penn Central Transp. Co. v. City of New York, 438 U.S. 104 (1978) (police power encompasses preservation of historic landmarks; land-use restrictions may be enacted to enhance the quality of life by preserving the character and aesthetic features of city); City of New Orleans v. Dukes, 427 U.S. 297 (1976); Young v. American Mini Theatres, 427 U.S. 50 (1976). --------------------------------------------------------------------------- Because the police power is the least limitable of the exercises of government, such limitations as are applicable are not readily definable. These limitations can be determined, therefore, only [[Page 1580]] through appropriate regard to the subject matter of the exercise of that power.\66\ ``It is settled [however] that neither the `contract' clause nor the `due process' clause had the effect of overriding the power of the state to establish all regulations that are reasonably necessary to secure the health, safety, good order, comfort, or general welfare of the community; that this power can neither be abdicated nor bargained away, and is inalienable even by express grant; and that all contract and property [or other vested] rights are held subject to its fair exercise.''\67\ Insofar as the police power is utilized by a State, the means employed to effect its exercise can be neither arbitrary nor oppressive but must bear a real and substantial relation to an end which is public, specifically, the public health, public safety, or public morals, or some other phase of the general welfare.\68\ \66\Hudson Water Co. v. McCarter, 209 U.S. 349 (1908); Eubank v. Richmond, 226 U.S. 137, 142 (1912); Erie R.R. v. Williams, 233 U.S. 685, 699 (1914); Sligh v. Kirkwood, 237 U.S. 52, 58-59 (1915); Hadacheck v. Sebastian, 239 U.S. 394 (1915); Hall v. Geiger-Jones Co., 242 U.S. 539 (1917); Panhandle Eastern Pipeline Co. v. Highway Comm'n, 294 U.S. 613, 622 (1935). \67\Atlantic Coast Line R.R. v. Goldsboro, 232 U.S. 548, 558 (1914). \68\Liggett Co. v. Baldridge, 278 U.S. 105, 111-12 (1928); Treigle v. Acme Homestead Ass'n, 297 U.S. 189, 197 (1936). --------------------------------------------------------------------------- A general rule often invoked is that if a police power regulation goes too far, it will be recognized as a taking of property for which compensation must be paid.\69\ Yet where mutual advantage is a sufficient compensation, an ulterior public advantage may justify a comparatively insignificant taking of private property for what in its immediate purpose seems to be a private use.\70\ On the other hand, mere ``cost and inconvenience (different words, probably, for the same thing) would have to be very great before they could become an element in the consideration of the right of a state to exert its reserved power or its police power.''\71\ Moreover, it is elementary that enforcement of uncompensated obedience to a regulation passed in the legitimate exertion of the police power is not a taking without due process of law.\72\ Similarly, initial compliance with a regulation which is valid when adopted occasions no forfeiture of the right to protest when that regulation subsequently loses its validity by becoming confiscatory in its operation.\73\ \69\Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922); Welch v. Swasey, 214 U.S. 91, 107 (1909). See also Penn Central Transp. Co. v. City of New York, 438 U.S. 104 (1978); Agins v. City of Tiburon, 447 U.S. 255 (1980). See supra, pp. 1382-95. \70\Noble State Bank v. Haskell, 219 U.S. 104, 110 (1911). \71\Erie R.R. v. Williams, 233 U.S. 685, 700 (1914). \72\New Orleans Public Service v. New Orleans, 281 U.S. 682, 687 (1930). \73\Abie State Bank v. 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