68 SALMON GEAR LIMITATION 



law, the field by its very nature lends itself especially to governmental 

 intervention for such purposes. "^^ 



Later on in the same opinion, the following significant passage 



is found: 



"So far as the federal constitution is concerned, there is no unrestricted 

 fee simple [a form of land ownership] in the right to drain gas from 

 beneath an adjacent owner's land. It is far too late, if it ever was otherwise, 

 to urge that the states are impotent to restrict this unfettered race or to put 

 it upon terms of proportionate equality by whatever measures may be 

 reasonably necessary to that end. Indeed our constitutional history is 

 replete with instances where the states have altered and restricted schemes 

 of property rights in response to the public interest and the states' local 

 needs. In some cases this has gone to the extent of abolishing basic com- 

 mon-law conceptions entirely and substituting new ones indigenous to their 

 areas and the problems they present. Perhaps the most extensive and 

 obvious illustrations are to be found in the systems developed in our arid 

 and mountainous western states for governing rights in the waters of flow- 

 ing streams and mining rights in respect to precious metals. Others are 

 not lacking. "^9 



Still later, he says: 



"Here as elsewhere, in considering the proper scope for state experi- 

 mentation, it is important that we indulge every reasonable presumption 

 in favor of the states' action. They should be free to improve their regu- 

 latory techniques as scientific knowledge advances, for here too experi- 

 mentation is the life-blood of progress. See Mr. Justice Brandeis dissenting 

 in New State Ice Co. v. Liebmann . . ."''^ 



Similarly in a 1951 case"*^ upholding a city ordinance forbidding 

 uninvited house-to-house canvassing by transient subscription-takers, 

 the court dealt rather summarily with a due process argument that 

 this restriction unconstitutionally interfered with a property right 

 to engage in a particular economic activity. With reference to this 

 argument, rested strongly on the much earlier Liebmann case, the 

 court said: 



"Decisions such as Liebmann and Tanner . . . are hardly in point here 

 . . . Furthermore, neither case is in as strong a position today as it was 

 when Bimger (a litigant in an intervening case) appealed . . . The ques- 

 tion of a man's right to carry on with propriety a standard method of 

 selHng is presented here in its most appealing form — an assertion by a 

 door-to-door solicitor that the Due Process Clause of the Fourteenth 

 Amendment does not permit a state or its subdivisions to deprive a spe- 



38. Id. at 91, 92. 



39. IcL at 92, 93. 



40. Id. ai 96. 



41. Breard v. Alexandria, 341 U. S. 622 ( 1951 ) 



