|SLAUGHTER-HOUSE CASES (1872)
THE BUTCHERS' BENEVOLENT ASSOCIATION OF
NEW ORLEANS v. THE CRESCENT CITY LIVE-STOCK LANDING AND SLAUGHTER-HOUSE COMPANY.
PAUL ESTEBEN, L. RUCH, J. P. ROUEDE, W. MAYLIE, S. FIRMBERG, B. BEAUBAY, WILLIAM FAGAN,
J. D. BRODERICK, N. SEIBEL, M. LANNES, J. GITZINGER, J. P. AYCOCK, D. VERGES, THE
LIVE-STOCK DEALERS' AND BUTCHERS' ASSOCIATION OF NEW ORLEANS, AND CHARLES CAVAROC v.
THE STATE OF LOUISIANA, ex rel. S. BELDEN, ATTORNEY-GENERAL. THE BUTCHERS'
BENEVOLENT ASSOCIATION OF NEW ORLEANS v. THE CRESCENT CITY LIVE-STOCK LANDING AND
December Term, 1872 (83 U.S. 36)
ERROR to the Supreme Court of Louisiana.
Mr. Justice MILLER, now, April 14th, 1873, delivered the opinion of the court.
The statute . . . assailed as unconstitutional was passed March 8th, 1869, and is
entitled 'An act to protect the health of the city of New Orleans, to locate the
stock-landings and slaughter-houses, and to incorporate the Crescent City Live-Stock
Landing and Slaughter-House Company.'
The first section forbids the landing or slaughtering of animals whose flesh is
intended for food, within the city of New Orleans and other parishes and boundaries named
and defined, or the keeping or establishing any slaughter- houses or abattoirs within
those limits except by the corporation thereby created, which is also limited to certain
places afterwards mentioned. Suitable penalties are enacted for violations of this
The second section designates the corporators, gives the name to the corporation, and
confers on it the usual corporate powers.
The third and fourth sections authorize the company to establish and erect within
certain territorial limits, therein defined, one or more stock-yards, stock-landings, and
slaughter-houses, and imposes upon it the duty of erecting, on or before the first day of
June, 1869, one grand slaughter-house of sufficient capacity for slaughtering five hundred
animals per day.
It declares that the company, after it shall have prepared all the necessary buildings,
yards, and other conveniences for that purpose, shall have the sole and exclusive
privilege of conducting and carrying on the live-stock landing and slaughter-house
business within the limits and privilege granted by the act, and that all such animals
shall be landed at the stock-landings and slaughtered at the slaughter-houses of the
company, and nowhere else. Penalties are enacted for infractions of this provision, and
prices fixed for the maximum charges of the company for each steamboat and for each animal
Section five orders the closing up of all other stock-landings and slaughter-houses
after the first day of June, in the parishes of Orleans, Jefferson, and St. Bernard, and
makes it the duty of the company to permit any person to slaughter animals in their
slaughter-houses under a heavy penalty for each refusal. Another section fixes a limit to
the charges to be made by the company for each animal so slaughtered in their building,
and another provides for an inspection of all animals intended to be so slaughtered, by an
officer appointed by the governor of the State for that purpose.
These are the principal features of the statute, and are all that have any bearing upon
the questions to be decided by us.
This statute is denounced not only as creating a monopoly and conferring odious and
exclusive privileges upon a small number of persons at the expense of the great body of
the community of New Orleans, but it is asserted that it deprives a large and meritorious
class of citizens--the whole of the butchers of the city--of the right to exercise their
trade, the business to which they have been trained and on which they depend for the
support of themselves and their families, and that the unrestricted exercise of the
business of butchering is necessary to the daily subsistence of the population of the
But a critical examination of the act hardly justifies these assertions.
It is true that it grants, for a period of twenty-five years, exclusive privileges. And
whether those privileges are at the expense of the community in the sense of a curtailment
of any of their fundamental rights, or even in the sense of doing them an injury, is a
question open to considerations to be hereafter stated. But it is not true that it
deprives the butchers of the right to exercise their trade, or imposes upon them any
restriction incompatible with its successful pursuit, or furnishing the people of the city
with the necessary daily supply of animal food.
The act divides itself into two main grants of privilege,--the one in reference to
stock-landings and stock-yards, and the other to slaughter- houses. That the landing of
livestock in large droves, from steamboats on the bank of the river, and from railroad
trains, should, for the safety and comfort of the people and the care of the animals, be
limited to proper places, and those not numerous, it needs no argument to prove. Nor can
it be injurious to the general community that while the duty of making ample preparation
for this is imposed upon a few men, or a corporation, they should, to enable them to do it
successfully, have the exclusive right of providing such landing-places, and receiving a
fair compensation for the service.
It is, however, the slaughter-house privilege, which is mainly relied on to justify the
charges of gross injustice to the public, and invasion of private right.
It is not, and cannot be successfully controverted, that it is both the right and the
duty of the legislative body--the supreme power of the State or municipality--to prescribe
and determine the localities where the business of slaughtering for a great city may be
conducted. To do this effectively it is indispensable that all persons who slaughter
animals for food shall do it in those places and nowhere else.
The statute under consideration defines these localities and forbids slaughtering in
any other. It does not, as has been asserted, prevent the butcher from doing his own
slaughtering. On the contrary, the Slaughter-House Company is required, under a heavy
penalty, to permit and person who wishes to do so, to slaughter in their houses; and they
are bound to make ample provision for the convenience of all the slaughtering for the
entire city. The butcher then is still permitted to slaughter, to prepare, and to sell his
own meats; but he is required to slaughter at a specified place and to pay a reasonable
compensation for the use of the accommodations furnished him at that place.
The wisdom of the monopoly granted by the legislature may be open to question, but it
is difficult to see a justification for the assertion that the butchers are deprived of
the right to labor in their occupation, or the people of their daily service in preparing
food, or how this statute, with the duties and guards imposed upon the company, can be
said to destroy the business of the butcher, or seriously interfere with its pursuit.
The power here exercised by the legislature of Louisiana is, in its essential nature,
one which has been, up to the present period in the constitutional history of this
country, always conceded to belong to the States, however it may now be questioned in some
of its details.
'Unwholesome trades, slaughter-houses, operations offensive to the senses, the deposit
of powder, the application of steam power to propel cars, the building with combustible
materials, and the burial of the dead, may all,' says Chancellor Kent, 'be interdicted by
law, in the midst of dense masses of population, on the general and rational principle,
that every person ought so to use his property as not to injure his neighbors; and that
private interests must be made subservient to the general interests of the community.'
This is called the police power; and it is declared by Chief Justice Shaw that it is much
easier to perceive and realize the existence and sources of it than to mark its
boundaries, or prescribe limits to its exercise.
This power is, and must be from its very nature, incapable of any very exact definition
or limitation. Upon it depends the security of social order, the life and health of the
citizen, the comfort of an existence in a thickly populated community, the enjoyment of
private and social life, and the beneficial use of property. 'It extends,' says another
eminent judge, 'to the protection of the lives, limbs, health, comfort, and quiet of all
persons, and the protection of all property within the State; . . . and persons and
property are subject to all kinds of restraints and burdens in order to secure the general
comfort, health, and prosperity of the State. Of the perfect right of the legislature to
do this no question ever was, or, upon acknowledged general principles, ever can be made,
so far as natural persons are concerned.'
The regulation of the place and manner of conducting the slaughtering of animals, and
the business of butchering within a city, and the inspection of the animals to be killed
for meat, and of the meat afterwards, are among the most necessary and frequent exercises
of this power. . . .
It cannot be denied that the statute under consideration is aptly framed to remove from
the more densely populated part of the city, the noxious slaughter- houses, and large and
offensive collections of animals necessarily incident to the slaughtering business of a
large city, and to locate them where the convenience, health, and comfort of the people
require they shall be located. And it must be conceded that the means adopted by the act
for this purpose are appropriate, are stringent, and effectual. But it is said that in
creating a corporation for this purpose, and conferring upon it exclusive privileges--
privileges which it is said constitute a monopoly--the legislature has exceeded its power.
If this statute had imposed on the city of New Orleans precisely the same duties,
accompanied by the same privileges, which it has on the corporation which it created, it
is believed that no question would have been raised as to its constitutionality. In that
case the effect on the butchers in pursuit of their occupation and on the public would
have been the same as it is now. Why cannot the legislature confer the same powers on
another corporation, created for a lawful and useful public object, that it can on the
municipal corporation already existing? That wherever a legislature has the right to
accomplish a certain result, and that result is best attained by means of a corporation,
it has the right to create such a corporation, and to endow it with the powers necessary
to effect the desired and lawful purpose, seems hardly to admit of debate. The proposition
is ably discussed and affirmed in the case of McCulloch v. The State of Maryland, in
relation to the power of Congress to organize the Bank of the United States to aid in the
fiscal operations of the government. . . .
The plaintiffs in error . . . allege that the statute is a violation of the
Constitution of the United States in these several particulars:
That it creates an involuntary servitude forbidden by the thirteenth article of
That it abridges the privileges and immunities of citizens of the United States;
That it denies to the plaintiffs the equal protection of the laws; and,
That it deprives them of their property without due process of law; contrary to the
provisions of the first section of the fourteenth article of amendment.
This court is thus called upon for the first time to give construction to these
We do not conceal from ourselves the great responsibility which this duty devolves upon
us. No questions so far-reaching and pervading in their consequences, so profoundly
interesting to the people of this country, and so important in their bearing upon the
relations of the United States, and of the several States to each other and to the
citizens of the States and of the United States, have been before this court during the
official life of any of its present members. We have given every opportunity for a full
hearing at the bar; we have discussed it freely and compared views among ourselves; we
have taken ample time for careful deliberation, and we now propose to announce the
judgments which we have formed in the construction of those articles, so far as we have
found them necessary to the decision of the cases before us, and beyond that we have
neither the inclination nor the right to go.
Twelve articles of amendment were added to the Federal Constitution soon after the
original organization of the government under it in 1789. Of these all but the last were
adopted so soon afterwards as to justify the statement that they were practically
contemporaneous with the adoption of the original; and the twelfth, adopted in eighteen
hundred and three, was so nearly so as to have become, like all the others, historical and
of another age. But within the last eight years three other articles of amendment of vast
importance have been added by the voice of the people to that now venerable instrument.
The most cursory glance at these articles discloses a unity of purpose, when taken in
connection with the history of the times, which cannot fail to have an important bearing
on any question of doubt concerning their true meaning. Nor can such doubts, when any
reasonably exist, be safely and rationally solved without a reference to that history; for
in it is found the occasion and the necessity for recurring again to the great source of
power in this country, the people of the States, for additional guarantees of human
rights; additional powers to the Federal government; additional restraints upon those of
the States. Fortunately that history is fresh within the memory of us all, and its leading
features, as they bear upon the matter before us, free from doubt.
The institution of African slavery, as it existed in about half the States of the
Union, and the contests pervading the public mind for many years, between those who
desired its curtailment and ultimate extinction and those who desired additional
safeguards for its security and perpetuation, culminated in the effort, on the part of
most of the States in which slavery existed, to separate from the Federal government, and
to resist its authority. This constituted the war of the rebellion, and whatever auxiliary
causes may have contributed to bring about this war, undoubtedly the overshadowing and
efficient cause was African slavery.
In that struggle slavery, as a legalized social relation, perished. It perished as a
necessity of the bitterness and force of the conflict. When the armies of freedom found
themselves upon the soil of slavery they could do nothing less than free the poor victims
whose enforced servitude was the foundation of the quarrel. And when hard pressed in the
contest these men (for they proved themselves men in that terrible crisis) offered their
services and were accepted by thousands to aid in suppressing the unlawful rebellion,
slavery was at an end wherever the Federal government succeeded in that purpose. The
proclamation of President Lincoln expressed an accomplished fact as to a large portion of
the insurrectionary districts, when he declared slavery abolished in them all. But the war
being over, those who had succeeded in re-establishing the authority of the Federal
government were not content to permit this great act of emancipation to rest on the actual
results of the contest or the proclamation of the Executive, both of which might have been
questioned in after times, and they determined to place this main and most valuable result
in the Constitution of the restored Union as one of its fundamental articles. Hence the
thirteenth article of amendment of that instrument. Its two short sections seem hardly to
admit of construction, so vigorous is their expression and so appropriate to the purpose
we have indicated.
'1. Neither slavery nor involuntary servitude, except as a punishment for crime,
whereof the party shall have been duly convicted, shall exist within the United States or
any place subject to their jurisdiction.
'2. Congress shall have power to enforce this article by appropriate legislation.'
To withdraw the mind from the contemplation of this grand yet simple declaration of the
personal freedom of all the human race within the jurisdiction of this government--a
declaration designed to establish the freedom of four millions of slaves--and with a
microscopic search endeavor to find in it a reference to servitudes, which may have been
attached to property in certain localities, requires an effort, to say the least of it.
That a personal servitude was meant is proved by the use of the word 'involuntary,'
which can only apply to human beings. The exception of servitude as a punishment for crime
gives an idea of the class of servitude that is meant. The word servitude is of larger
meaning than slavery, as the latter is popularly understood in this country, and the
obvious purpose was to forbid all shades and conditions of African slavery. . . .
The process of restoring to their proper relations with the Federal government and with
the other States those which had sided with the rebellion, undertaken under the
proclamation of President Johnson in 1865, and before the assembling of Congress,
developed the fact that, notwithstanding the formal recognition by those States of the
abolition of slavery, the condition of the slave race would, without further protection of
the Federal government, be almost as bad as it was before. Among the first acts of
legislation adopted by several of the States in the legislative bodies which claimed to be
in their normal relations with the Federal government, were laws which imposed upon the
colored race onerous disabilities and burdens, and curtailed their rights in the pursuit
of life, liberty, and property to such an extent that their freedom was of little value,
while they had lost the protection which they had received from their former owners from
motives both of interest and humanity.
They were in some States forbidden to appear in the towns in any other character than
menial servants. They were required to reside on and cultivate the soil without the right
to purchase or own it. They were excluded from many occupations of gain, and were not
permitted to give testimony in the courts in any case where a white man was a party. It
was said that their lives were at the mercy of bad men, either because the laws for their
protection were insufficient or were not enforced.
These circumstances, whatever of falsehood or misconception may have been mingled with
their presentation, forced upon the statesmen who had conducted the Federal government in
safety through the crisis of the rebellion, and who supposed that by the thirteenth
article of amendment they had secured the result of their labors, the conviction that
something more was necessary in the way of constitutional protection to the unfortunate
race who had suffered so much. They accordingly passed through Congress the proposition
for the fourteenth amendment, and they declined to treat as restored to their full
participation in the government of the Union the States which had been in insurrection,
until they ratified that article by a formal vote of their legislative bodies.
Before we proceed to examine more critically the provisions of this amendment, on which
the plaintiffs in error rely, let us complete and dismiss the history of the recent
amendments, as that history relates to the general purpose which pervades them all. A few
years' experience satisfied the thoughtful men who had been the authors of the other two
amendments that, notwithstanding the restraints of those articles on the States, and the
laws passed under the additional powers granted to Congress, these were inadequate for the
protection of life, liberty, and property, without which freedom to the slave was no boon.
They were in all those States denied the right of suffrage. The laws were administered by
the white man alone. It was urged that a race of men distinctively marked as was the
negro, living in the midst of another and dominant race, could never be fully secured in
their person and their property without the right of suffrage.
Hence the fifteenth amendment, which declares that 'the right of a citizen of the
United States to vote shall not be denied or abridged by any State on account of race,
color, or previous condition of servitude.' The negro having, by the fourteenth amendment,
been declared to be a citizen of the United States, is thus made a voter in every State of
We repeat, then, in the light of this recapitulation of events, almost too recent to be
called history, but which are familiar to us all; and on the most casual examination of
the language of these amendments, no one can fail to be impressed with the one pervading
purpose found in them all, lying at the foundation of each, and without which none of them
would have been even suggested; we mean the freedom of the slave race, the security and
firm establishment of that freedom, and the protection of the newly-made freeman and
citizen from the oppressions of those who had formerly exercised unlimited dominion over
him. It is true that only the fifteenth amendment, in terms, mentions the negro by
speaking of his color and his slavery. But it is just as true that each of the other
articles was addressed to the grievances of that race, and designed to remedy them as the
We do not say that no one else but the negro can share in this protection. Both the
language and spirit of these articles are to have their fair and just weight in any
question of construction. Undoubtedly while negro slavery alone was in the mind of the
Congress which proposed the thirteenth article, it forbids any other kind of slavery, now
or hereafter. If Mexican peonage or the Chinese coolie labor system shall develop slavery
of the Mexican or Chinese race within our territory, this amendment may safely be trusted
to make it void. And so if other rights are assailed by the States which properly and
necessarily fall within the protection of these articles, that protection will apply,
though the party interested may not be of African descent. But what we do say, and what we
wish to be understood is, that in any fair and just construction of any section or phrase
of these amendments, it is necessary to look to the purpose which we have said was the
pervading spirit of them all, the evil which they were designed to remedy, and the process
of continued addition to the Constitution, until that purpose was supposed to be
accomplished, as far as constitutional law can accomplish it.
The first section of the fourteenth article, to which our attention is more specially
invited, opens with a definition of citizenship--not only citizenship of the United
States, but citizenship of the States. No such definition was previously found in the
Constitution, nor had any attempt been made to define it by act of Congress. It had been
the occasion of much discussion in the courts, by the executive departments, and in the
public journals. It had been said by eminent judges that no man was a citizen of the
United States, except as he was a citizen of one of the States composing the Union. Those,
therefore, who had been born and resided always in the District of Columbia or in the
Territories, though within the United States, were not citizens. Whether this proposition
was sound or not had never been judicially decided. But it had been held by this court, in
the celebrated Dred Scott case, only a few years before the outbreak of the civil war,
that a man of African descent, whether a slave or not, was not and could not be a citizen
of a State or of the United States. This decision, while it met the condemnation of some
of the ablest statesmen and constitutional lawyers of the country, had never been
overruled; and if it was to be accepted as a constitutional limitation of the right of
citizenship, then all the negro race who had recently been made freemen, were still, not
only not citizens, but were incapable of becoming so by anything short of an amendment to
To remove this difficulty primarily, and to establish a clear and comprehensive
definition of citizenship which should declare what should constitute citizenship of the
United States, and also citizenship of a State, the first clause of the first section was
'All persons born or naturalized in the United States, and subject to the jurisdiction
thereof, are citizens of the United States and of the State wherein they reside.'
The first observation we have to make on this clause is, that it puts at rest both the
questions which we stated to have been the subject of differences of opinion. It declares
that persons may be citizens of the United States without regard to their citizenship of a
particular State, and it overturns the Dred Scott decision by making all persons born
within the United States and subject to its jurisdiction citizens of the United States.
That its main purpose was to establish the citizenship of the negro can admit of no doubt.
The phrase, 'subject to its jurisdiction' was intended to exclude from its operation
children of ministers, consuls, and citizens or subjects of foreign States born within the
The next observation is more important in view of the arguments of counsel in the
present case. It is, that the distinction between citizenship of the United States and
citizenship of a State is clearly recognized and established. Not only may a man be a
citizen of the United States without being a citizen of a State, but an important element
is necessary to convert the former into the latter. He must reside within the State to
make him a citizen of it, but it is only necessary that he should be born or naturalized
in the United States to be a citizen of the Union.
It is quite clear, then, that there is a citizenship of the United States, and a
citizenship of a State, which are distinct from each other, and which depend upon
different characteristics or circumstances in the individual.
We think this distinction and its explicit recognition in this amendment of great
weight in this argument, because the next paragraph of this same section, which is the one
mainly relied on by the plaintiffs in error, speaks only of privileges and immunities of
citizens of the United States, and does not speak of those of citizens of the several
States. The argument, however, in favor of the plaintiffs rests wholly on the assumption
that the citizenship is the same, and the privileges and immunities guaranteed by the
clause are the same.
The language is, 'No State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States.' It is a little remarkable, if
this clause was intended as a protection to the citizen of a State against the legislative
power of his own State, that the word citizen of the State should be left out when it is
so carefully used, and used in contradistinction to citizens of the United States, in the
very sentence which precedes it. It is too clear for argument that the change in
phraseology was adopted understandingly and with a purpose. . . .
Having shown that the privileges and immunities relied on in the argument are those
which belong to citizens of the States as such, and that they are left to the State
governments for security and protection, and not by this article placed under the special
care of the Federal government, we may hold ourselves excused from defining the privileges
and immunities of citizens of the United States which no State can abridge, until some
case involving those privileges may make it necessary to do so. . . .
The argument has not been much pressed in these cases that the defendant's charter
deprives the plaintiffs of their property without due process of law, or that it denies to
them the equal protection of the law. The first of these paragraphs 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 form of expression in the constitutions of nearly
all the States, as a restraint upon the power of the States. This law then, has
practically been the same as it now is during the existence of the government, except so
far as the present amendment may place the restraining power over the States in this
matter in the hands of the Federal government.
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.
'Nor shall any State deny to any person within its jurisdiction the equal protection of
In the light of the history of these amendments, and the pervading purpose of them,
which we have already discussed, it is not difficult to give a meaning to this clause. The
existence of laws in the States where the newly emancipated negroes resided, which
discriminated with gross injustice and hardship against them as a class, was the evil to
be remedied by this clause, and by it such laws are forbidden.
If, however, the States did not conform their laws to its requirements, then by the
fifth section of the article of amendment Congress was authorized to enforce it by
suitable legislation. We doubt very much whether any action of a State not directed by way
of discrimination against the negroes as a class, or on account of their race, will ever
be held to come within the purview of this provision. It is so clearly a provision for
that race and that emergency, that a strong case would be necessary for its application to
any other. But as it is a State that is to be dealt with, and not alone the validity of
its laws, we may safely leave that matter until Congress shall have exercised its power,
or some case of State oppression, by denial of equal justice in its courts, shall have
claimed a decision at our hands. We find no such case in the one before us, and do not
deem it necessary to go over the argument again, as it may have relation to this
particular clause of the amendment. . . .
Under the pressure of all the excited feeling growing out of the war, our statesmen
have still believed that the existence of the State with powers for domestic and local
government, including the regulation of civil rights--the rights of person and of
property--was essential to the perfect working of our complex form of government, though
they have thought proper to impose additional limitations on the States, and to confer
additional power on that of the Nation.
But whatever fluctuations may be seen in the history of public opinion on this subject
during the period of our national existence, we think it will be found that this court, so
far as its functions required, has always held with a steady and an even hand the balance
between State and Federal power, and we trust that such may continue to be the history of
its relation to that subject so long as it shall have duties to perform which demand of it
a construction of the Constitution, or of any of its parts.
The judgments of the Supreme Court of Louisiana in these cases are
Mr. Justice FIELD, dissenting:
I am unable to agree with the majority of the court in these cases, and will proceed to
state the reasons of my dissent from their judgment.
The substance of the averments of the plaintiffs in error is this: That prior to the
passage of the act in question they were engaged in the lawful and necessary business of
procuring and bringing to the parishes of Orleans, Jefferson, and St. Bernard, animals
suitable for human food, and in preparing such food for market; that in the prosecution of
this business they had provided in these parishes suitable establishments for landing,
sheltering, keeping, and slaughtering cattle and the sale of meat; that with their
association about four hundred persons were connected, and that in the parishes named
about a thousand persons were thus engaged in procuring, preparing, and selling animal
food. And they complain that the business of landing, yarding, and keeping, within the
parishes named, cattle intended for sale or slaughter, which was lawful for them to pursue
before the first day of June, 1869, is made by that act unlawful for any one except the
corporation named; and that the business of slaughtering cattle and preparing animal food
for market, which it was lawful for them to pursue in these parishes before that day, is
made by that act unlawful for them to pursue afterwards, except in the buildings of the
company, and upon payment of certain prescribed fees, and a surrender of a valuable
portion of each animal slaughtered. And they contend that the lawful business of landing,
yarding, sheltering, and keeping cattle intended for sale or slaughter, which they in
common with every individual in the community of the three parishes had a right to follow,
cannot be thus taken from them and given over for a period of twenty-five years to the
sole and exclusive enjoyment of a corporation of seventeen persons or of anybody else. And
they also contend that the lawful and necessary business of slaughtering cattle and
preparing animal food for market, which they and all other individuals had a right to
follow, cannot be thus restricted within this territory of 1154 square miles to the
buildings of this corporation, or be subjected to tribute for the emolument of that body.
No one will deny the abstract justice which lies in the position of the plaintiffs in
error; and I shall endeavor to show that the position has some support in the fundamental
law of the country.
It is contended in justification for the act in question that it was adopted in the
interest of the city, to promote its cleanliness and protect its health, and was the
legitimate exercise of what is termed the police power of the State. That power
undoubtedly extends to all regulations affecting the health, good order, morals, peace,
and safety of society, and is exercised on a great variety of subjects, and in almost
numberless ways. All sorts of restrictions and burdens are imposed under it, and when
these are not in conflict with any constitutional prohibitions, or fundamental principles,
they cannot be successfully assailed in a judicial tribunal. With this power of the State
and its legitimate exercise I shall not differ from the majority of the court. But under
the pretence of prescribing a police regulation the State cannot be permitted to encroach
upon any of the just rights of the citizen, which the Constitution intended to secure
In the law in question there are only two provisions which can properly be called
police regulations--the one which requires the landing and slaughtering of animals below
the city of New Orleans, and the other which requires the inspection of the animals before
they are slaughtered. When these requirements are complied with, the sanitary purposes of
the act are accomplished. In all other particulars the act is a mere grant to a
corporation created by it of special and exclusive privileges by which the health of the
city is in no way promoted. It is plain that if the corporation can, without endangering
the health of the public, carry on the business of landing, keeping, and slaughtering
cattle within a district below the city embracing an area of over a thousand square miles,
it would not endanger the public health if other persons were also permitted to carry on
the same business within the same district under similar conditions as to the inspection
of the animals. The health of the city might require the removal from its limits and
suburbs of all buildings for keeping and slaughtering cattle, but no such object could
possibly justify legislation removing such buildings from a large part of the State for
the benefit of a single corporation. The pretence of sanitary regulations for the grant of
the exclusive privileges is a shallow one, which merits only this passing notice.
It is also sought to justify the act in question on the same principle that exclusive
grants for ferries, bridges, and turnpikes are sanctioned. But it can find no support
there. Those grants are of franchises of a public character appertaining to the
government. Their use usually requires the exercise of the sovereign right of eminent
domain. It is for the government to determine when one of them shall be granted, and the
conditions upon which it shall be enjoyed. It is the duty of the government to provide
suitable roads, bridges, and ferries for the convenience of the public, and if it chooses
to devolve this duty to any extent, or in any locality, upon particular individuals or
corporations, it may of course stipulate for such exclusive privileges connected with the
franchise as it may deem proper, without encroaching upon the freedom or the just rights
of others. The grant, with exclusive privileges, of a right thus appertaining to the
government, is a very different thing from a grant, with exclusive privileges, of a right
to pursue one of the ordinary trades or callings of life, which is a right appertaining
solely to the individual.
Nor is there any analogy between this act of Louisiana and the legislation which
confers upon the inventor of a new and useful improvement an exclusive right to make and
sell to others his invention. The government in this way only secures to the inventor the
temporary enjoyment of that which, without him, would not have existed. It thus only
recognizes in the inventor a temporary property in the product of his own brain.
The act of Louisiana presents the naked case, unaccompanied by any public
considerations, where a right to pursue a lawful and necessary calling, previously enjoyed
by every citizen, and in connection with which a thousand persons were daily employed, is
taken away and vested exclusively for twenty-five years, for an extensive district and a
large population, in a single corporation, or its exercise is for that period restricted
to the establishments of the corporation, and there allowed only upon onerous conditions.
If exclusive privileges of this character can be granted to a corporation of seventeen
persons, they may, in the discretion of the legislature, be equally granted to single
individual. If they may be granted for twenty-five years they may be equally granted for a
century, and in perpetuity. If they may be granted for the landing and keeping of animals
intended for sale or slaughter they may be equally granted for the landing and storing of
grain and other products of the earth, or for any article of commerce. If they may be
granted for structures in which animal food is prepared for market they may be equally
granted for structures in which farinaceous or vegetable food is prepared. They may be
granted for any of the pursuits of human industry, even in its most simple and common
forms. Indeed, upon the theory on which the exclusive privileges granted by the act in
question are sustained, there is no monopoly, in the most odious form, which may not be
The question presented is, therefore, one of the gravest importance, not merely to the
parties here, but to the whole country. It is nothing less than the question whether the
recent amendments to the Federal Constitution protect the citizens of the United States
against the deprivation of their common rights by State legislation. In my judgment the
fourteenth amendment does afford such protection, and was so intended by the Congress
which framed and the States which adopted it.
The counsel for the plaintiffs in error have contended, with great force, that the act
in question is also inhibited by the thirteenth amendment.
That amendment prohibits slavery and involuntary servitude, except as a punishment for
crime, but I have not supposed it was susceptible of a construction which would cover the
enactment in question. I have been so accustomed to regard it as intended to meet that
form of slavery which had previously prevailed in this country, and to which the recent
civil war owed its existence, that I was not prepared, nor am I yet, to give to it the
extent and force ascribed by counsel. Still it is evidence that the language of the
amendment is not used in a restrictive sense. It is not confined to African slavery alone.
It is general and universal in its application. Slavery of white men as well as of black
men is prohibited, and not merely slavery in the strict sense of the term, but involuntary
servitude in every form.
The words 'involuntary servitude' have not been the subject of any judicial or
legislative exposition, that I am aware of, in this country, except that which is found in
the Civil Rights Act, which will be hereafter noticed. It is, however, clear that they
include something more than slavery in the strict sense of the term; they include also
serfage, vassalage, villenage, peonage, and all other forms of compulsory service for the
mere benefit or pleasure of others. Nor is this the full import of the terms. The
abolition of slavery and involuntary servitude was intended to make every one born in this
country a freeman, and as such to give to him the right to pursue the ordinary avocations
of life without other restraint than such as affects all others, and to enjoy equally with
them the fruits of his labor. A prohibition to him to pursue certain callings, open to
others of the same age, condition, and sex, or to reside in places where others are
permitted to live, would so far deprive him of the rights of a freeman, and would place
him, as respects others, in a condition of servitude. A person allowed to pursue only one
trade or calling, and only in one locality of the country, would not be, in the strict
sense of the term, in a condition of slavery, but probably none would deny that he would
be in a condition of servitude. He certainly would not possess the liberties nor enjoy the
privileges of a freeman. The compulsion which would force him to labor even for his own
benefit only in one direction, or in one place, would be almost as oppressive and nearly
as great an invasion of his liberty as the compulsion which would force him to labor for
the benefit or pleasure of another, and would equally constitute an element of servitude.
The counsel of the plaintiffs in error therefore contend that 'wherever a law of a State,
or a law of the United States, makes a discrimination between classes of persons, which
deprives the one class of their freedom or their property, or which makes a caste of them
to subserve the power, pride, avarice, vanity, or vengeance of others,' there involuntary
servitude exists within the meaning of the thirteenth amendment. . . .
It is not necessary, however, . . . to rest my objections to the act in question upon
the terms and meaning of the thirteenth amendment. The provisions of the fourteenth
amendment, which is properly a supplement to the thirteenth, cover, in my judgment, the
case before us, and inhibit any legislation which confers special and exclusive privileges
like these under consideration. . . . .
The first clause of this amendment determines who are citizens of the United States,
and how their citizenship is created. . . .
In the Dred Scott case this subject of citizenship of the United States was fully and
elaborately discussed. The exposition in the opinion of Mr. Justice Curtis has been
generally accepted by the profession of the country as the one containing the soundest
views of constitutional law. And he held that, under the Constitution, citizenship of the
United States in reference to natives was dependent upon citizenship in the several
States, under their constitutions and laws.
The Chief Justice, in that case, and a majority of the court with him, held that the
words 'people of the United States' and 'citizens' were synonymous terms; that the people
of the respective States were the parties to the Constitution; that these people consisted
of the free inhabitants of those States; that they had provided in their Constitution for
the adoption of a uniform rule of naturalization; that they and their descendants and
persons naturalized were the only persons who could be citizens of the United States, and
that it was not in the power of any State to invest any other person with citizenship so
that he could enjoy the privileges of a citizen under the Constitution, and that therefore
the descendants of persons brought to this country and sold as slaves were not, and could
not be citizens within the meaning of the Constitution.
The first clause of the fourteenth amendment changes this whole subject, and removes it
from the region of discussion and doubt. It recognizes in express terms, if it does not
create, citizens of the United States, and it makes their citizenship dependent upon the
place of their birth, or the fact of their adoption, and not upon the constitution or laws
of any State or the condition of their ancestry. A citizen of a State is now only a
citizen of the United States residing in that State. The fundamental rights, privileges,
and immunities which belong to him as a free man and a free citizen, now belong to him as
a citizen of the United States, and are not dependent upon his citizenship of any State.
The exercise of these rights and privileges, and the degree of enjoyment received from
such exercise, are always more or less affected by the condition and the local
institutions of the State, or city, or town where he resides. They are thus affected in a
State by the wisdom of its laws, the ability of its officers, the efficiency of its
magistrates, the education and morals of its people, and by many other considerations.
This is a result which follows from the constitution of society, and can never be avoided,
but in no other way can they be affected by the action of the State, or by the residence
of the citizen therein. They do not derive their existence from its legislation, and
cannot be destroyed by its power.
The amendment does not attempt to confer any new privileges or immunities upon
citizens, or to enumerate or define those already existing. It assumes that there are such
privileges and immunities which belong of right to citizens as such, and ordains that they
shall not be abridged by State legislation. If this inhibition has no reference to
privileges and immunities of this character, but only refers, as held by the majority of
the court in their opinion, to such privileges and immunities as were before its adoption
specially designated in the Constitution or necessarily implied as belonging to citizens
of the United States, it was a vain and idle enactment, which accomplished nothing, and
most unnecessarily excited Congress and the people on its passage. . . .
What, then, are the privileges and immunities which are secured against abridgment by
In the first section of the Civil Rights Act Congress has given its interpretation to
these terms, or at least has stated some of the rights which, in its judgment, these terms
include; it has there declared that they include the right 'to make and enforce contracts,
to sue, be parties and give evidence, to inherit, purchase, lease, sell, hold, and convey
real and personal property, and to full and equal benefit of all laws and proceedings for
the security of person and property.' That act, it is true, was passed before the
fourteenth amendment, but the amendment was adopted, as I have already said, to obviate
objections to the act, or, speaking more accurately, I should say, to obviate objections
to legislation of a similar character, extending the protection of the National government
over the common rights of all citizens of the United States. Accordingly, after its
ratification, Congress re-enacted the act under the belief that whatever doubts may have
previously existed of its validity, they were removed by the amendment.
The terms, privileges and immunities, are not new in the amendment; they were in the
Constitution before the amendment was adopted. They are found in the second section of the
fourth article, which declares that 'the citizens of each State shall be entitled to all
privileges and immunities of citizens in the several States,' and they have been the
subject of frequent consideration in judicial decisions. In Corfield
v. Coryell, Mr. Justice Washington said he had 'no hesitation in confining these
expressions to those privileges and immunities which were, in their nature, fundamental;
which belong of right to citizens of all free governments, and which have at all times
been enjoyed by the citizens of the several States which compose the Union, from the time
of their becoming free, independent, and sovereign;' and, in considering what those
fundamental privileges were, he said that perhaps it would be more tedious than difficult
to enumerate them, but that they might be 'all comprehended under the following general
heads: protection by the government; the enjoyment of life and liberty, with the right to
acquire and possess property of every kind, and to pursue and obtain happiness and safety,
subject, nevertheless, to such restraints as the government may justly prescribe for the
general good of the whole.' This appears to me to be a sound construction of the clause in
question. The privileges and immunities designated are those which of right belong to the
citizens of all free governments. Clearly among these must be placed the right to pursue a
lawful employment in a lawful manner, without other restraint than such as equally affects
all persons. . . .
The privileges and immunities designated in the second section of the fourth article of
the Constitution are, then, according to the decision cited, those which of right belong
to the citizens of all free governments, and they can be enjoyed under that clause by the
citizens of each State in the several States upon the same terms and conditions as they
are enjoyed by the citizens of the latter States. No discrimination can be made by one
State against the citizens of other States in their enjoyment, nor can any greater
imposition be levied than such as is laid upon its own citizens. It is a clause which
insures equality in the enjoyment of these rights between citizens of the several States
whilst in the same State. . . .
Now, what the [second section of the fourth article of the Constitution] . . . does for
the protection of citizens of one State against the creation of monopolies in favor of
citizens of other States, the fourteenth amendment does for the protection of every
citizen of the United States against the creation of any monopoly whatever. The privileges
and immunities of citizens of the United States, of every one of them, is secured against
abridgment in any form by any State. The fourteenth amendment places them under the
guardianship of the National authority. All monopolies in any known trade or manufacture
are an invasion of these privileges, for they encroach upon the liberty of citizens to
acquire property and pursue happiness, and were held void at common law in the great Case of Monopolies, decided during the reign of Queen Elizabeth.
A monopoly is defined 'to be an institution or allowance from the sovereign power of
the State by grant, commission, or otherwise, to any person or corporation, for the sole
buying, selling, making, working, or using of anything, whereby any person or persons,
bodies politic or corporate, are sought to be restrained of any freedom or liberty they
had before, or hindered in their lawful trade.' All such grants relating to any known
trade or manufacture have been held by all the judges of England, whenever they have come
up for consideration, to be void at common law as destroying the freedom of trade,
discouraging labor and industry, restraining persons from getting an honest livelihood,
and putting it into the power of the grantees to enhance the price of commodities. The
definition embraces, it will be observed, not merely the sole privilege of buying and
selling particular articles, or of engaging in their manufacture, but also the sole
privilege of using anything by which others may be restrained of the freedom or liberty
they previously had in any lawful trade, or hindered in such trade. It thus covers in
every particular the possession and use of suitable yards, stables, and buildings for
keeping and protecting cattle and other animals, and for their slaughter. Such
establishments are essential to the free and successful prosecution by any butcher of the
lawful trade of preparing animal food for market. The exclusive privilege of supplying
such yards, buildings, and other conveniences for the prosecution of this business in a
large district of country, granted by the act of Louisiana to seventeen persons, is as
much a monopoly as though the act had granted to the company the exclusive privilege of
buying and selling the animals themselves. It equally restrains the butchers in the
freedom and liberty they previously had, and hinders them in their lawful trade. . . .
So fundamental has this privilege of every citizen to be free from disparaging and
unequal enactments, in the pursuit of the ordinary avocations of life, been regarded, that
few instances have arisen where the principle has been so far violated as to call for the
interposition of the courts. But whenever this has occurred, with the exception of the
present cases from Louisiana, which are the most barefaced and flagrant of all, the
enactment interfering with the privilege of the citizen has been pronounced illegal and
void. When a case under the same law, under which the present cases have arisen, came
before the Circuit Court of the United States in the District of Louisiana, there was no
hesitation on the part of the court in declaring the law, in its exclusive features, to be
an invasion of one of the fundamental privileges of the citizen. The presiding justice, in
delivering the opinion of the court, observed that it might be difficult to enumerate or
define what were the essential privileges of a citizen of the United States, which a State
could not by its laws invade, but that so far as the question under consideration was
concerned, it might be safely said that 'it is one of the privileges of every American
citizen to adopt and follow such lawful industrial pursuit, not injurious to the
community, as he may see fit, without unreasonable regulation or molestation, and without
being restricted by any of those unjust, oppressive, and odious monopolies or exclusive
privileges which have been condemned by all free governments.' And again: 'There is no
more sacred right of citizenship than the right to pursue unmolested a lawful employment
in a lawful manner. It is nothing more nor less than the sacred right of labor.'
. . . .
This equality of right, with exemption from all disparaging and partial enactments, in
the lawful pursuits of life, throughout the whole country, is the distinguishing privilege
of citizens of the United States. To them, everywhere, all pursuits, all professions, all
avocations are open without other restrictions than such as are imposed equally upon all
others of the same age, sex, and condition. The State may prescribe such regulations for
every pursuit and calling of life as will promote the public health, secure the good order
and advance the general prosperity of society, but when once prescribed, the pursuit or
calling must be free to be followed by every citizen who is within the conditions
designated, and will conform to the regulations. This is the fundamental idea upon which
our institutions rest, and unless adhered to in the legislation of the country our
government will be a republic only in name. The fourteenth amendment, in my judgment,
makes it essential to the validity of the legislation of every State that this equality of
right should be respected. How widely this equality has been departed from, how entirely
rejected and trampled upon by the act of Louisiana, I have already shown. And it is to me
a matter of profound regret that its validity is recognized by a majority of this court,
for by it the right of free labor, one of the most sacred and imprescriptible rights of
man, is violated. As stated by the Supreme Court of Connecticut, in the case cited, grants
of exclusive privileges, such as is made by the act in question, are opposed to the whole
theory of free government, and it requires no aid from any bill of rights to render them
void. That only is a free government, in the American sense of the term, under which the
inalienable right of every citizen to pursue his happiness is unrestrained, except by
just, equal, and impartial laws.
I am authorized by the CHIEF JUSTICE, Mr. Justice SWAYNE, and Mr. Justice BRADLEY, to
state that they concur with me in this dissenting opinion.
[Separate dissents of Mr. Justice BRADLEY and Mr. Justice Swayne are omitted.]