What makes a state statute unconstitutional

If they do know, do they care? A very large number of legal provisions have been declared unconstitutional. In South Africa, a decision that a law is unconstitutional is not final until it is approved by the Constitutional Court. We have given this quite awesome responsibility to the High Court, and some of the cases have been decided by just one judge. But the decisions of single High Court judges are traditionally not binding even on other High Court judges. Perhaps worse, lawyers, and judges, do not necessarily even know that a law has been held unconstitutional.

The government is usually a party when the constitutionality of a law is being decided. If the law is declared unconstitutional and they disagree, they must appeal. We need a mechanism for informing lawyers. And judges, too, should be informed. And if a law has been declared unconstitutional, and no-one is appealing, Parliament should be invited to change the law, either to make it achieve its purpose without being unconstitutional, or to remove the unconstitutional provision.

To learn more about make donate charity with us visit our " Contact us " site. Blog Details Katiba Institute Article. By Jill Cottrell Ghai. Social Share. That was more so when the role of the Attorney General in determining remuneration for the members of the established Tribunal was considered.

On the amendment to the Advocates Act which opened up the Kenyan market to foreign advocates, the trial court held that section 11 of the Advocates Act had already provided for the practice and regulation of foreign advocates. The High Court erred in not observing the finer details of the amendments and in not appreciating the text, context and effect that rendered them substantive. The amendments had an effect on the business of the appellant and its membership.

Moreover, it undermined the independence of the appellant, something that the Court could not countenance.

It already had the Advocates Complaints Commission under its control. That was enough state control. There was no legitimate purpose to be served by further control through legislative measures clearly cultivated to undermine the independence of the appellant. On the issue of public participation, the High Court failed to appreciate the mandatory provisions in section 5 of the Statutory Instruments Act which required consultations before making statutory instruments that had a direct or substantial indirect effect on business or restricted competition with persons who were likely to be affected by the proposed instrument.

The High Court ought to have found in favour of the appellant based on the claim made on the lack of public participation. It was an error for the trial court to require the appellant to prove the negative—that there was no public participation, for once it stated there was no public participation, the burden shifted to the respondents to show that there was.

Much weight had been placed on public participation because it was the only way to ensure that the legislature would make laws that were beneficial to the mwananchi , not those that adversely affected them. Additionally, the onus was on the Parliament to take the initiative to make appropriate consultations with the affected people. It was therefore misdirection for the High Court to hold that the appellant had the responsibility to prove that the consultations did not happen.

The 1 st respondent was not possessed of an unfettered or carte blanche leeway to table legislation that was detrimental to the people of Kenya or a section of the citizenry.

It ought to follow due process which included consultation with stakeholders. The Constitution established that mechanism to enable the Legislature to make laws that were reasonable, having sought and obtained the views of the people. That was the essence of an accountable limited government and the shift from the supremacy of Parliament to the sovereignty of the people birthed by the Constitution.

The Legislature overreached in passing substantive amendments in an un-procedural non-participatory manner, through the Statute Law Miscellaneous Amendments Act No of A month prior to the hearing of the petition, there was an amendment to sections 31A and 33B of the Act. Those changes were through section 64 of the Finance Act No 10 of which commenced on 1st October The petitioner contended that the impugned provisions discriminated against banks and financial institutions as no similar restriction on interest rates was placed on mortgage finance institutions, micro finance banks, insurance companies and those dealing with Islamic banking.

Held: 1. However, neither had been defined in the interpretation provision of section 2 of the Banking Act. Further, the two terms were not defined in the Interpretation and General Provisions Act Cap 2 Laws of Kenya , which was a statute inter alia in regard to the construction, application and interpretation of written law.

Nevertheless, reference of the two 2 terms had been made in section 44A 5 b of the Act. Ordinarily, where there was no statutory definition of a word, then it ought to be construed in its plain and simple meaning.

If the former, a loan was a type of credit facility, and if the latter, a credit facility was a type of loan.

That interpretation was conflicting. Arguments such as whether the section as worded covered loans such as mobile loans and hire purchase facilities would be avoided. That would be in consonance with good legislative practice that definitions appearing in one statute ought to appear in related statutes for clarity and to avoid inconsistencies and ambiguity when dealing with a related issue.

All laws relating to the same issue had to bear the same meaning as they would have the potential of the same words being assigned different meanings and interpreted differently depending on the statute under consideration. Each statute had to be interpreted in line with all the provisions contained. Unfortunately, the ambiguity persisted even after the Amendment. There was need for clarity on the issue because left as it was; it was open to different interpretations.

It did not specify whether it was to be charged per day, per month or per annum. In any event, any valid law had to be self-explanatory. It had to and should not be qualified by explanations to be found outside of the statute.

No person should be punished for disobeying a law that was uncertain. He had to understand in clear terms the law he was required to obey. As drafted, sections 33B 1 and 2 of the Act were open to different interpretations which could lead to some offending CEOs suffering prejudice while others would go scot free depending on the interpretation that different courts would make.

Therefore, section 33 B 1 and 2 of the Act violated the Constitution in so far as any person contravening the same risked facing criminal liability without the benefit of understanding what s[he] was supposed to comply with.

The penalties for contravention of section 33 B 2 were fairly severe and banks, financial institutions and their respective CEOs risked suffering severe penalties for failure to comply with unclear laws. From the wording of section 33B 2 , the offender could either be the bank or the customer. However, section 33B 3 provided a penalty for the bank and the CEOs only.

The customer had been left out. It was not clear why only the bank and not the customer should be punished yet they would both be contravening the provisions of the law. That anomaly was evident when one compared the provision with the provisions of section 49 of the Act which was the general penalty section. Section 49 covered all offenders and was not discriminatory.

Anyone who did not comply with should be subjected to the same treatment in regards to penalty. By failing to do so, section 33B of the Act was discriminatory and therefore unconstitutional. The only unconstitutional aspect of the penal section of section 33B was that it discriminated against the banks and its CEOs.

If eventually the Court was to declare as invalid section 33B, there would be no lacuna in the law as section 49 of the Act provided for general penalties for offences under the Act. A lesson to be drawn from the provisions of sections 4B, 4C and 4D of the Central Bank Act was that an integral feature of formulating monetary policy; it was a consultative process between CBK and the Executive through the Cabinet Secretary, Treasury.

It was also a process in which the National Assembly had an input when the monetary policy statements were placed before its appropriate committee for deliberation. One organ could not act in isolation. Although the provisions of section 33B were of matters that could be outside monetary policy, a framework that regulated interest rate charged by banks and financial Institutions had far reaching consequences.

There was merit in the argument by CBK that the fixing of interest rates caps and the entire regulatory framework should not be arbitrary. But of course those were matters within the remit of the National Assembly and the Court could only make observations. The Court was aware that thousands of contracts had been entered by borrowers and lenders on the basis of the impugned provisions of section 33B.

Although the provisions generally had constitutional underpinning, some aspects were unconstitutional. Therefore, the remedies granted would take into account the possible disruption that invalidating everything done under the unconstitutional aspects of the provisions could have on existing contracts. The possible harm should not be disproportionate to the harm that could result if the law was to be given a temporary respite. The approach would be taken for the provisions that were found to be vague, imprecise and ambiguous.

Indeed, if the striking out of the provision was not temporarily suspended, there was the risk of throwing the entire banking industry in turmoil. The Circular no 4 of by CBK had brought some measure of certainty amongst stakeholders. That had to subsist before a new provision could be enacted. The petitioners challenged discrimination by the law on children born out of wedlock and unmarried women on the basis of birth, sex and marital status. The 1st petitioner averred that she was cohabiting with one PM as a result of which they were blessed with two issues, EA and NF, out of wedlock.

The petitioners contended that the language in some sections of the Children Act were discriminatory to children born out of wedlock and to unmarried mothers. They also contended that section 12 of the Birth and Deaths Registration Act and sections 3 2 and 3 3 of law of Succession Act were discriminatory to children born out of wedlock.

The High Court had inherent power and constitutional jurisdiction to interpret the Constitution of Kenya, Constitution , the Bill of Rights and other laws on principles premised by article 3, 10, 20 3 , 4 and 5 , 21, 24, , 3 b and d , , and of the Constitution. The Constitution should be interpreted in a manner that promoted its purposes, values and principles, advanced the rule of law, human rights and fundamental freedoms in the Bill of Rights, and that contributed to good governance.

Article 2 e of the Constitution mandated the Court, in exercising its judicial authority, to protect and promote the purpose and principles of the Constitution. The Constitution of a nation was not simply a statute which mechanically defined the structures of government and the relationship between the government and the governed. It was a mirror reflecting the national soul; the identification of ideals and aspirations of a nation; the articulation of the values bonding its people and disciplining its government.

The spirit and the tenor of the Constitution had to preside and permeate the processes of judicial interpretation and judicial discretion. The provisions of the Constitution had to be read as an integrated whole, without any one particular provision destroying the other but each sustaining the other. There was a general presumption that every Act of Parliament was constitutional. The burden of proving the contrary rested upon any person who alleged otherwise.

The Constitution qualified that presumption with respect to statutes which limited or were intended to limit fundamental rights and freedoms. Under the provisions of article 24 there could be no presumption of constitutionality with respect to legislation that limited fundamental rights: it had to meet the criteria set under article In determining whether an Act of Parliament is unconstitutional, consideration had to be given to the objects and purpose of the legislation.

In interpreting the Constitution, the court would be guided by the general principles that;. Courts had to therefore endeavor to avoid crippling it by construing it technically or in a narrow spirit. It had to be construed in tune with the lofty purposes for which its makers framed it.

So construed, the instrument became a solid foundation of democracy and the rule of law. A timorous and unimaginative exercise of judicial power of constitutional interpretation left the Constitution a stale and sterile document;. Restrictions on fundamental rights had to be strictly construed. A party alleging violation of a constitutional right or freedom had to demonstrate that their fundamental right had been impaired, infringed or limited. Once a limitation had been demonstrated, then the party which would benefit from the limitation had to demonstrate a justification for the limitation.

Article 53 of the Constitution was the reference point as far as the rights of children were concerned. It was the yardstick by which laws relating to children were to be measured. The plain meaning of the article was that fathers and mothers had equal responsibility to a child they bore, and that responsibility was not left to the volition of the man or woman. The bottom line was that both of them had to take responsibility.

In determining whether a law was inconsistent with the Constitution so as to make the said law invalid, a court needed to lay the article of the Constitution which was invoked beside the statute which was challenged and to decide whether the latter squared with the former.

The Children Act No. There had been no review of the Act to align it with the Constitution. Some of the provisions of the Act were inconsistent with the Constitution. Section 2 b of the Children Act gave a father the discretion of choosing whether a child was to be his relative or not. A reading of the section had the meaning that if a father did not acknowledge paternity of a child or had not been contributing to the maintenance of the child, that child could not be considered to be a relative of the father.

It also meant that children born inside wedlock had an automatic right to be the relatives of their fathers while those born outside wedlock had no such right.

That was discriminatory on the children born outside wedlock on the ground of birth. That violated the right of equal treatment before the law to children born outside wedlock. The definition was against the spirit of article 53 of the Constitution and offended the principle of the best interests of the child, which the constitution placed at a higher pedestal than that of the father or mother. That section was in line with article 53 1 of the Constitution on equal responsibility of the father and mother whether they were married to each other or not.

It had not been shown that the section was in contravention of the Constitution. Section 26 of the Children Act provided for parental responsibility agreements which agreements could only be vitiated like any other contract.

There was nothing wrong in having parental responsibility agreements in so far as they were not in conflict with the Constitution and relevant statutes. Section 27 1 of the Children Act provided for transmission of parental responsibility to a father and mother who were married or had subsequently married after the birth of the child.

The section provided for the doctrine of survivorship in case of death of either parent where responsibility of the child was transferred to the surviving parent. There was nothing wrong with that provision as a surviving parent continued to have responsibility towards their child. Section 27 2 of the Children Act provided for transmission of parental responsibility of unmarried parents when either parent died.

It provided that the father could only take up responsibility after the death of the mother if he had acquired parental responsibility. That was against the principle of equal responsibility of parents under article 53 1 e of the Constitution which right could not be qualified for reason that the father had or had not acquired parental responsibility. Parental responsibility was automatic and self-activating on parents upon the birth of a child and fathers could not have the discretion of either accepting or rejecting that responsibility.

It also meant that a parent who had not acquired parental responsibility could not do so after the death of the other parent. The section was therefore discriminatory to unmarried fathers on ground of marital status contrary to the provisions of article 27 4 of the Constitution. Section 94 1 of the Children Act implied that parents of children born out of wedlock had to assume parental responsibility before they could be ordered to pay maintenance towards their children.

A parent could not opt out of parental responsibility. The section was in contravention of article 53 1 e of the Constitution which commanded equal responsibility of the mother and father to provide for the child whether they were married to each other or not.

The Court reiterated the automation of parental responsibility upon birth of a child, and the said responsibility was not left to the discretion of either the father or mother.

The section was in contravention of article 53 1 e of the Constitution. Section 4 b of the Children Act was inconsistent with the Constitution in that in adoption proceedings it only provided for the consent of the parent or guardian of the mother of the child where the mother of a child born out of wedlock was a child but did not provide for the consent of the parents or guardian of the father where the father was a child.

That was discriminatory on such fathers in that their parents or guardian were not required to give consent in adoption proceedings.

The section was in contravention of articles 27 1 and 27 4 of the Constitution on equality before the law. The section was discriminatory on fathers who had not acquired parental responsibility. The section had the implication of treating fathers differently based on whether one had acquired parental responsibility which was against the spirit of article 27 1 on equal treatment before the law.

Sections 3 2 and 3 3 of the Law of Succession Act were inconsistent with the Constitution in so far as a child born out of wedlock was regarded as such if the father had expressly recognized or in fact accepted as a child of his own or for whom he had voluntarily assumed permanent responsibility.

The section was in contravention of article 53 1 e of the Constitution which required parents to provide for their children whether they were married or not. The instant Court was agreeable to the reasoning of the Court in that matter. Section 12 was inconsistent with article 27 and 53 of the Constitution. When the High Court in L. That was the proper way to go. Before such names were entered into the register there had to be some regulations in place. The petitioner did not inform the court whether such regulations had been put into place.

An order for birth certificate to be issued to the children of the 1 st respondent indicating the name of their father could not issue before the law was amended to cater for that.

The mandate of the Court was to ascertain whether a law was inconsistent with the constitution or not. The court did not supervise other courts of equal jurisdiction. The instant Court could not issue prohibitory orders on other judges of the High Court. The petition concerned the rights of children born outside marriage with the main issue revolving around the registration of their births and the circumstances under which the name of the biological father should be inserted in the birth certificate of the child.

The Petitioner, a single mother of a child born out of marriage, filed a petition on her own behalf and for her child and other children born out of wedlock, challenging the constitutionality of section 12 of the Registration of Births and Deaths Act, which provided that the only time that the name of the father of a child born outside marriage can be entered in the register of births was upon the joint request of the father and mother, or upon proof of marriage. The Petition was brought against the Attorney General AG , the chief legal advisor and legal representative of the national government and the Registrar of Births and Deaths whose mandate was outlined under the Registration of Births and Deaths Act, and included, inter alia, the registration of all births and deaths in Kenya and the keeping of appropriate records in respect thereof.

In so far as the section requires that the name of the father of a child born outside marriage shall be entered in the register of births only with the consent of the father, that provision is unconstitutional and in violation of Articles 27, 28 and 53 of the Constitution. In addition, I take the view that it has the effect of imposing an unfair burden on women, the mothers of children born outside marriage, and is to that extent discriminatory on the basis of sex.

The Constitution and the Children Act have set out various rights of children, and the obligations of parents to ensure that children have access to these rights. The published rule directed the court to set an intervention time not less than 60 days from the court's certification. The method of serving the notice of constitutional question set by the published rule called for serving the United States Attorney General under Civil Rule 4, and for serving a state attorney general by certified or registered mail.

This proposal has been changed to provide service in all cases either by certified or registered mail or by sending the Notice to an electronic address designated by the attorney general for this purpose.

The rule proposed for adoption brings into subdivision c matters that were stated in the published Committee Note but not in the rule text. The court may reject a constitutional challenge at any time, but may not enter a final judgment holding a statute unconstitutional before the time set to intervene expires. The published rule would have required notice and certification when an officer of the United States or a state brings suit in an official capacity.

There is no need for notice in such circumstances. Several style changes were made at the Style Subcommittee's suggestion. One change that straddles the line between substance and style appears in Rule 5.

The language of Rule 5. Because venue is not part of a transitory cause of action, an Alabama law that created such a cause of action by making the employer liable to the employee for injuries attributable to defective machinery was inoperative insofar as it sought to withhold from such employee the right to sue on such action in courts of any state other than Alabama; the Full Faith and Credit Clause of Art.

IV does not preclude a court in another state that acquired jurisdiction from enforcing such right of action. Louisiana act of repealing prior act of and sequestering with compensation certain property acquired by a canal company under the repealed enactment impaired an obligation of contact. Texas act of stipulating that only those who have previously served two years as freight train conductors or brakemen shall be eligible to serve as railroad train conductors was arbitrary and effected a denial of the equal protection of the laws.

Justices dissenting: McKenna, Pitney. Accord: International Harvester Co. Kentucky , U. South Carolina law making mental anguish resulting from negligent non-delivery of a telegram a cause of action could not be invoked to support an action for negligent non-delivery in the District of Columbia, an area beyond the jurisdiction of South Carolina and, consistent with due process, removed from the scope of its legislative power. The statute, as applied to messages sent from South Carolina to another jurisdiction, also was an invalid regulation of interstate commerce.

Oklahoma Separate Coach Law violated the Equal Protection Clause by permitting carriers to provide sleeping, dining, and chair cars for whites but not for Negroes. Justices concurring: White separately , C. A South Dakota law that required a foreign corporation to appoint a local agent to accept service of process as a condition precedent to suing in state courts to collect a claim arising out of interstate commerce imposed an invalid burden on said commerce. An Oklahoma privilege tax, insofar as it was levied on sale of coal extracted from lands owned by Indian tribes and leased on their behalf by the Federal Government, was invalid as a tax on federal instrumentality.

Justices dissenting: Day, Hughes, Holmes separately. Tennessee county privilege tax law, insofar as it was enforced as to a liquor dealer doing a strictly mail-order business confined to shipments to outofstate destinations was void as a burden on interstate commerce.

North Dakota law compelling carriers to haul certain commodities at less than compensatory rates deprived them of property without due process. Justice dissenting: Pitney. A West Virginia law that compelled carriers to haul passengers at noncompensatory rates deprived them of property without due process. Justices dissenting: Hughes, Pitney, McReynolds. Wisconsin statute requiring interstate trains to stop at villages of a specified number of inhabitants, without regard to the volume of business done there, was void as imposing an unreasonable burden on interstate commerce.

Accord: Mayers v. Anderson , U. A Wisconsin statute that compelled sleeping car companies, if an upper berth was not sold, to accord use of the space to the purchaser of a lower berth, took salable property from the owner without compensation and therefore deprived the owner of property without due process of law.

Justices dissenting: McKenna, Holmes. An Arizona statute that compelled establishments hiring five or more workers to reserve 80 percent of the employment opportunities to U. Justice dissenting: McReynolds. Kentucky statute levying tax, in the nature of a license tax for the doing of local business, on premiums collected in New York by a foreign insurance company after it had ceased to do business in that state violated due process because it affected activities beyond the jurisdiction of the state.

Texas statute imposing special licenses on express companies maintaining offices for C. A Louisiana law that established a rebuttable presumption that any person systematically purchasing sugar in Louisiana at a price below that which he paid in any other state was a party to a monopoly or conspiracy in restraint of trade violated both the Due Process and Equal Protection Clauses of the Fourteenth Amendment because it declared an individual presumptively guilty of a crime and exempted countless others paying the same price.

A Wisconsin law that revoked the license of any foreign corporation that removed to a federal court a suit instituted against it by a Wisconsin citizen imposed an unconstitutional condition. Construction of acts of and as compelling a Detroit City Railway to extend its lines to suburban areas annexed by Detroit only on the same terms as were contained in its initial franchise as authorized by the Detroit ordinance of , wherein its fare was fixed, operated to impair the obligation of contract.

Justices dissenting: Clarke, Brandeis. The two-cent passenger rate fixed by act of the Arkansas legislature was confiscatory and accordingly deprived the railroad of its property without due process.

A Tennessee privilege tax could not validly be imposed on interstate sales consummated at either destination in Tennessee by an Indiana corporation that, for the purpose of filling orders taken by its salesmen in Tennessee, shipped thereto a tank car of oil and a carload of barrels and filled the orders through an agent who drew the oil from the tank car into the barrels, or into barrels furnished by customers, and then made delivery and collected the agreed price, and thereafter moved the two cars to another point in Tennessee for effecting like deliveries.

A Washington law that proscribed private employment agencies by prohibiting them from collecting fees for their services deprived individuals of the liberty to pursue a lawful calling contrary to due process of law. Kentucky act of , amending act of and construed in such manner as to enable a county to avoid collection of taxes to repay judgment on unpaid bonds impaired the obligation of contract. A Texas law that, under the guise of taxing the privilege of doing an intrastate business, imposed on an Illinois corporation a license tax based on its authorized capital stock, was void not only as imposing a burden on interstate commerce, but also as contravening the Due Process Clause by affecting property outside the jurisdiction of Texas.

Pennsylvania gross receipts tax on wholesalers, as applied to a merchant who sold part of his merchandise to customers in foreign countries either as the result of orders received directly from them or as the result of orders solicited by agents abroad was void as a regulation of foreign commerce and as a duty on exports.

License fee or excise of a given per cent of the par value of the entire authorized capital stock of a foreign corporation doing both a local and interstate business and owning property in several States was a tax on the entire business and property of the corporation and was void both as an illegal burden on interstate commerce and as a violation of due process by reason of affecting property beyond the borders of the taxing State.

When a Connecticut corporation maintains and employs a Massachusetts office with a stock of samples and an office force and traveling salesmen merely to obtain local orders subject to confirmation at the Connecticut office and with deliveries to be made directly from the latter, its business was interstate commerce and a Massachusetts annual excise could not be validly applied thereto.

Liberty of contract, as protected by the due process clause of the Fourteenth Amendment, precluded enforcement of the Missouri nonforfeiture statute, prescribing how net value of a life insurance policy is to be applied to avert a forfeiture in the event the annual premium is not paid, so as to prevent a Missouri resident from executing in the New York office of the insurer a different agreement sanctioned by New York law whereby the policy was pledged as security for a loan and later canceled in satisfaction of the indebtedness.

Justices dissenting: Brandeis, Day, Pitney, Clarke. Georgia act of revoking a grant in of a perpetual right of way to a railroad impaired the obligation of contract Art. Kentucky law, insofar as it authorized a judgment against nonresident individuals based on service against their Kentucky agent after his appointment had expired, violated due process.

Tax exemptions in charters granted to certain railroads inured to their lessee, and, accordingly, a Georgia tax authorized by a constitutional provision postdating such charters and imposed on the leasehold interest of the lessee impaired the obligation of contract. Justices dissenting: Pitney, Brandeis, Clarke. Tennessee act that made the annual tax for the privilege of doing railway construction work dependent on whether the person taxed had his chief office in Tennessee, i.

New York income tax law that allowed exemptions to residents, with increases for married persons and dependents but that allowed no equivalent exemptions to nonresidents abridged the Privileges and Immunities Clause of Art.

The Oklahoma constitution and laws, under which an order of the State Corporation Commission declaring a laundry a monopoly and limiting its rates was not judicially reviewable, and that compelled litigant, for purposes of obtaining a judicial test of rates, to disobey the order and invite serious penalty for each day of refusal pending completion of judicial appeal, violated due process insofar as rates were enforced by penalties.

An Illinois law denying Illinois courts jurisdiction in actions for wrongful death occurring in another state, which was construed to bar jurisdiction of actions on a sister state judgment founded upon a like cause, was as so applied, in violation of the Full Faith and Credit Clause. New Mexico law levying annual license on distributors of gasoline plus 2 cents per gallon on all gasoline sold was a privilege tax, and, as applied to parties who bring gasoline from without and sell it in New Mexico, imposed an invalid burden on interstate commerce insofar as it related to their business of selling in tank car lots and in barrels or packages as originally imported.

North Dakota act, as administered, imposed invalid burden on interstate commerce and took property without due process by reason of taxing an interstate railroad by assessing the value of its property in the state at that proportion of the total value of its stock and bonds that the main track mileage within the state bore to the main track mileage of the entire line; this formula was indefensible inasmuch as the cost of construction per mile was within than without the taxing state, and the large and valuable terminals of the railroad were located elsewhere.

Action of Ohio legislature ratifying proposed Eighteenth Amendment could not be referred to the voters, and the provisions of the Ohio constitution requiring such referendum were inconsistent with Article V of the Federal Constitution. Accord: Hawke v. Smith No. Since Pennsylvania Public Service Commission Law failed to provide opportunity by way of appeal to the courts or by injunctive proceedings to test issue as to whether rates fixed by Commission are confiscatory, order of Commission establishing maximum future rates violated due process of law.

Justices dissenting: Brandeis, Holmes, Clarke. A Virginia law that taxed all income of local corporation derived from business within and without Virginia, while exempting entirely income derived outside of Virginia by local corporations that did no local business, violated the Equal Protection Clause. Justices dissenting: Brandeis, Holmes. Justices dissenting: Pitney, McReynolds. Justice dissenting: Clarke. Arkansas statute that authorized local assessments for road improvements denied equal protection of the laws insofar as railroad property was burdened for local improvement on a basis totally different from that used for measuring the contribution demanded of individual owners.

Justices dissenting: Clarke, Pitney, Brandeis. Accord: United Fuel Gas Co. Hallanan , U. Justices dissenting: Brandeis, Clarke. A Kentucky law prescribing conditions under which foreign corporations could do business in that state, and that precluded enforcement in Kentucky courts of contracts made by foreign corporations not complying with such conditions, could not be enforced against Tennessee corporation that sued in a Kentucky court for breach of a contract consummated in that state for the purchase of grain to be delivered to and used in Tennessee; such transaction was in interstate commerce, notwithstanding that the Tennessee purchaser might change its mind after delivery to a carrier in Kentucky and sell the grain in Kentucky or consign it to some other place in Kentucky.

An Arizona statute that regulated injunctions in labor disputes, but exempted ex-employees, when committing tortious injury to the business of their former employer in the form of mass picketing, libelous utterances, and inducement of customers to withhold patronage, while leaving subject to injunctive restraint all other tortfeasors engaged in like wrongdoing, deprived the employer of property without due process and denied him equal protection of the law.

Justices dissenting: Holmes, Pitney, Clarke, Brandeis. An Oklahoma income tax law could not validly be enforced as to net income of lessee derived from the sales of his share of oil and gas received under leases of restricted Indian lands which constituted him in effect an instrumentality used by the United States in fulfilling its duties to the Indians.

An Arkansas law that revoked the license of a foreign corporation to do business in that state whenever it resorted to the federal courts sitting in that state exacted an unconstitutional condition. A North Dakota statute that required purchasers of grain to obtain a license to act under a defined system of grading, inspection, and weighing, and to abide by regulations as to prices and profits imposed an invalid burden on interstate commerce insofar as it was applied to a North Dakota association which bought grain in the state and loaded it promptly on cars for shipment to other states for sale, notwithstanding occasional diversion of the grain for local sales.

Justices dissenting: Holmes, Brandeis, Clarke. Rates fixed for the sale of gas by New York statute were confiscatory and deprived the utility of its property without due process of law.

Accord: Newton v. New York Gas Co. Kings County Lighting Co. Brooklyn Union Gas Co. Consolidated Gas Co. A Florida law retroactively validating collection of fee for passage through a canal, the use of which was then free by law, was ineffective; a legislature could not retroactively approve what it could not lawfully do.

A Georgia law levying inspection fees and providing for inspection of oil and gasoline was unconstitutional as applied to gasoline and oil in interstate commerce; for the fees clearly exceeded the cost of inspection and amounted to a tariff levied without the consent of Congress.

An Arkansas law exacting of persons insuring property in Arkansas a five-percent tax on amounts paid on premiums to insurers not authorized to do business in Arkansas violated due process insofar as it was applied to insurance contracted and paid for outside Arkansas by a foreign corporation doing a local business. A Vermont levy of a property tax on logs under control of the owner which, in the course of their interstate journey, were being temporarily detained by a boom to await subsidence of high waters and for the sole purpose of saving them from loss, was void as a burden on interstate commerce.

A Pennsylvania law that forbade mining in such a way as to cause subsidence of any human habitation or public street or building and which thereby made commercially impracticable the removal of valuable coal deposits was deemed arbitrary and amounted to a deprivation of property without due process. As applied to an owner of land who, prior to this enactment, had validly deeded the surface with express reservation of right to remove coal underneath and subject to waiver by grantee of damage claims resulting from such mining, said law also impaired the obligation of contract.

Justice dissenting: Brandeis. A South Carolina statute, as construed, that sought to convert a covenant in a prior legislative contract into a condition subsequent, and to impose as a penalty for its violation the forfeiture of valuable property, impaired the obligation of contract. A first mortgage executed to a Federal Land Bank is a federal instrumentality and cannot be subjected to an Alabama recording tax. An Ohio law that applied to interstate and intrastate commerce, and that exacted fees for inspection of petroleum products in excess of the legitimate cost of inspection, imposed an invalid import tax to the extent that the excess could not be separated and assigned solely to intrastate commerce.

Insofar as drainage district tax authorized under an Arkansas law imposed upon a railroad a levy disproportionate to the value of the benefits derived from an improvement, the tax violated the Equal Protection Clause. A Minnesota law that provided that interstate railroads that had an agent in Minnesota to solicit traffic over lines outside Minnesota may be served with summons by delivery of copy of it to the agent imposed an invalid burden on interstate commerce as applied to a carrier that owned and operated no facilities in Minnesota and that was sued by a plaintiff who did not reside in Minnesota on a cause of action arising outside the state.

A Nebraska law that forbade the teaching of any language other than English in any school, private, denominational, or public, maintaining classes for the first eight grades denied liberty without due process of law. Justices dissenting: Holmes, Sutherland. Accord: Bartels v. Iowa , U. A similar Iowa law violates due process. Same division of Justices as in Meyer v.

A Georgia law that extended corporate limits of a town and that, as judicially construed, had the effect of rendering applicable to the added territory street railway rates fixed by an earlier contract between the town and the railway impaired the obligation of that contract by adding to its burden. Accord: Dorchy v. Kansas , U. Industrial Court , U. A Wisconsin law that required a foreign corporation not doing business in Wisconsin, or having property there, other than that sought to be recovered in a suit, to send, as a condition precedent to maintaining such action, its officer with corporate records pertinent to the matter in controversy, and to submit to an adversary examination before answer, but which did not subject nonresident individuals to such examination, except when served with notice and subpoena within Wisconsin, and then only in the court where the service was had, and which limited such examinations, in the case of residents of Wisconsin, individual or corporate, to the county of their residence violated the Equal Protection Clause.

A West Virginia law that required pipe line companies to fill all local needs before endeavoring to export any natural gas extracted in West Virginia was void as a prohibited interference with interstate commerce. Washington state and county property taxes cannot be levied on the property of a corporation that, though formed under Washington law, was a federal instrumentality created and operated by the United States as an instrument of war.

A Louisiana license tax law could not validly be enforced as to the business of companies employed as agents by owners of vessels engaged exclusively in interstate and foreign commerce when the services performed by the agents consisted of the soliciting and engaging of cargo, and the nomination of vessels to carry it, etc. See Texas Transp. New Orleans, U. A Texas law that permitted a nonresident to prosecute a case which arose outside of Texas against a railroad corporation of another state, which was engaged in interstate commerce and neither owned nor operated facilities in Texas, was inoperative because it burdened interstate commerce.

As imposed, the tax also violated the Equal Protection Clause. A Michigan law that converted an interstate contract motor carrier into a public utility by legislative fiat in effect took property for public use without compensation in violation of the due process clause, and also imposed unreasonable conditions on the right to carry on interstate commerce. A Washington law that prohibited motor vehicle common carriers for hire from using its highways without obtaining a certificate of convenience could not validly be exacted of an interstate motor carrier; the law was not a regulation designed to promote public safety but a prohibition of competition and, accordingly, burdened interstate commerce.

Accord: Bush Co. Maloy , U. Accord: Allen v. Galveston Truck Line Corp. A Massachusetts law that imposed excise tax on foreign corporations doing business in the state, measured by a combination of the total value of capital shares attributable to transactions therein and the proportion of net income attributable to such transactions, could not validly be applied to a foreign corporation which transacted only as interstate business therein.

The tax as here imposed also violated due process by affecting property beyond Massachusetts borders. Oregon Compulsory Education Law that required every parent to send his child to a public school was an unconstitutional interference with the liberty of parents and guardians to direct the upbringing of children and violated due process.

An Arkansas statute that imposed special assessment on lands acquired by private owners from the United States on account of benefits resulting from road improvements completed before the United States parted with title effected a taking of property without due process of law. Justices dissenting: Holmes, Brandeis, Stone. A Pennsylvania law that prohibited the use of shoddy, even when sterilized, in the manufacture of bedding materials, was so arbitrary and unreasonable as to violate due process.

A New Mexico law that forbade insurance companies authorized to do business in that state to pay any nonresident any fee for the obtaining or placing of any policies covering risks in New Mexico violated due process because it attempted to control conduct beyond the jurisdiction of New Mexico.