LEGAL ANALYSIS 67 



persons were dependent upon commercially manufactured ice, con- 

 sidered "as a household necessity, indispensible to preservation of 

 food and so to economical household management and the mainte- 

 nance of health. "^^ He further stated: 



"It is urged specifically that manufacturing ice for sale and distribution 

 is a common calling; and that the right to engage in a common calhng is 

 one of the fundamental liberties guaranteed by the due process clause. To 

 think of the ice-manufacturing business as a common calHng is difficult; 

 so recent is it in origin and so peculiar in character. Moreover, the consti- 

 tution does not require that every calling which has been common shall 

 ever remain so. The liberty to engage in a common calling, like other 

 liberties, may be limited in the exercise of the police power. The slaughter- 

 ing of cattle had been a common calling in New Orleans before the 

 monopoly sustained in Slaughter-House Cases, 16 Wall. 36, was created 

 by the legislature. Prior to the Eighteenth Amendment selling liquor was 

 a common calling, but this court held it to be consistent with the due 

 process clause for a State to abolish the calling ... or to establish a system 

 limiting the number of licenses ... It is settled that the police power 

 commonly invoked in aid of health, safety and morals, extends equally to 

 the promotion of the public welfare. "^^ 



That a state should have the power, as against a claim made 

 upon the Due Process Clause, to make substantial changes upon 

 property rights and other economic rights is very clearly pointed 

 out in an opinion by Mr. Justice Rutledge in a 1948 case, Republic 

 Natural Gas Co. v. Oklahoma.^^ Although the majority opinion 

 disposed of the case on a purely procedural point and did not deal 

 with the merits of the problem, Mr. Justice Rutledge's views on the 

 merits of the problem were joined by three others of the court. 

 Speaking of the state regulation of taking natural gas, he said: 



"These peculiar qualities (of natural gas), moreover, have been re- 

 flected in the legal rights relating to the ownership of gas in place, as well 

 as its extraction. They have been adapted to its nature and to that of the 

 competitive struggle regarding it . . . these difficulties, intensified by the 

 competitive struggle for the product and the inadequacy of common-law 

 ideas to control it, have forced both the states and the federal government 

 to adopt extensive regulatory measures in recent years. This has been 

 necessary both to conserve the public interest in this rapidly depleting 

 natural resource and to secure fair adjustment of private rights in the 

 industry. Rather than being a sacred, untouchable enclave of the common 



35. 285U. S. at287. 



36. 285 U. S. at 303 and 304. 



37. 334U. S. 62 (1948). 



