66 SALMON GEAR LIMITATION 



earlier, pre- 1935 period, then very tolerant of state control there- 

 after. One of the earlier cases is particularly interesting because of 

 the prophetic dissent of Mr. Justice Brandeis: In New State Ice Co. 

 V. Liebmann,^^ decided in 1932, Oklahoma by statute had provided 

 that ice manufacturers and distributors in the state had to be 

 licensed, and that before any new licenses would issue, a showing 

 had to be made that there was a necessity for a supply of ice at the 

 place where it was sought to be established, and further authorized 

 the denial of the license if the present facilities were sufficient to meet 

 the public needs. The court, in an opinion by Mr. Justice Sutherland, 

 who, incidentally, also wrote the opinion in the Adkins^^ case dis- 

 cussed previously, held the statute to violate the Due Process Clause, 

 as infringing upon the liberty to engage in economic activity. 



"Plainly, a regulation which has the effect of denying or unreasonably 

 curtailing the common right to engage in a lawful private business, such as 

 that under review, cannot be upheld consistently with the Fourteenth 

 Amendment. Under that amendment, nothing is more clearly settled than 

 that it is beyond the power of a state, 'under the guise of protecting the 

 public, arbitrarily (to) interfere with private business or prohibit lawful 

 occupations or impose unreasonable and unnecessary restrictions upon 

 them.' "^^ 



It is significant to note that the court in the Daniel case just 

 discussed dealing with funeral insurance, says of this language quoted 

 by Mr. Justice Sutherland, "According to the majority in Liggett, 

 'a state cannot, "under the guise of protecting the public, arbitrarily 

 interfere with private business or prohibit lawful occupations or 

 impose unreasonable and unnecessary restrictions upon them" '. . . 

 But a pronounced shift in emphasis since the Liggett case has de- 

 prived the words 'unreasonable' and 'arbitrary' of the content for 

 which respondents contend."^"* 



To Mr. Justice Brandeis, the decision of the court in the Lieb- 

 mann case was quite wrong. His dissent has, in fact, been frequently 

 quoted in subsequent cases; by contrast, Mr. Justice Sutherland's 

 opinion has not stood the test of time. Mr. Justice Brandeis first 

 emphasized the importance of ice to the economy and health of 

 Oklahoma citizens; he then pointed out that home appliances for ice 

 manufacture or cold storage were not then widely owned and many 



31. 285 U. S. 262 (1932). 



32. 261 U. S. 525, discussed 5z//?/Y/, n. 26. 



33. 285 U.S. at 278. 



34. 336 U. S. at 225. 



