Regulatory Takings

• Author: Christian Turner
• Pages: 451-694

4. Regulatory Takings

4.1. Origins

Mugler v. Kansas

123 U.S. 623 (1887)

ERROR TO THE SUPREME COURT OF THE STATE

OF KANSAS. APPEAL FROM THE CIRCUIT COURT

OF THE UNITED STATES FOR THE DISTRICT OF

KANSAS.

Mr. George G. Vest, for plaintiff in error.

Mr. B.S. Bradford, Attorney General of the State of Kansas,

Mr. George R. Peck, Mr. J.B. Johnson, and Mr. George J. Barker

for defendant in error, submitted on their brief.

Mr. S.B. Bradford, Attorney General of the State of Kansas,

Mr. Edwin A. Austin, Assistant Attorney General of that

State, and Mr. J.F. Tufts, Assistant Attorney General for

Atchison County, Kansas, for appellant submitted on their

brief. October 25, 1887, Mr. Bradford moved the court to

reopen the cause and reassign it for argument. October 26,

1887, the court denied the motion.

Mr. Joseph II. Choate for appellee. Mr. Robert M. Eaton and

Mr. John C. Tomlinson were with him on his brief.

MR. JUSTICE HARLAN delivered the opinion of the court.

These cases involve an inquiry into the validity of certain

statutes of Kansas relating to the manufacture and sale of

intoxicating liquors. [A series of Kansas statutes worked to

prohibit the manufacture or sale of alcoholic beverages.]

The first two are indictments, charging Mugler, the plaintiff

in error, in one case, with having sold, and in the other,

with having manufactured, spirituous, vinous, malt,

fermented, and other intoxicating liquors, in Saline County,

Kansas, without having the license or permit required by

the statute. The defendant, having been found guilty, was

fined, in each case, one hundred dollars, and ordered to be

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committed to the county jail until the fine was paid. Each

judgment was affirmed by the Supreme Court of Kansas,

and thereby, it is contended, the defendant was denied

rights, privileges, and immunities guaranteed by the

Constitution of the United States.

The third case – Kansas v. Ziebold & Hagelin – was

commenced by petition filed in one of the courts of the

State. The relief sought is: 1. That the group of buildings in

Atchison County, Kansas, constituting the brewery of the

defendants, partners as Ziebold & Hagelin, be adjudged a

common nuisance, and the sheriff or other proper officer

directed to shut up and abate the same. 2. That the

defendants be enjoined from using, or permitting to be

used, the said premises as a place where intoxicating liquors

may be sold, bartered, or given away, or kept for barter,

sale, or gift, otherwise than by authority of law.

… .

The facts necessary to a clear understanding of the

questions, common to these cases, are the following:

Mugler and Ziebold & Hagelin were engaged in

manufacturing beer at their respective establishments,

(constructed specially for that purpose,) for several years

prior to the adoption of the constitutional amendment of

1880. They continued in such business in defiance of the

statute of 1881, and without having the required permit.

Nor did Mugler have a license or permit to sell beer. The

single sale of which he was found guilty occurred in the

State, and after May 1, 1881, that is, after the act of

February 19, 1881, took effect, and was of beer

manufactured before its passage.

The buildings and machinery constituting these breweries

are of little value if not used for the purpose of

manufacturing beer; that is to say, if the statutes are

enforced against the defendants the value of their property

will be very materially diminished.

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The general question in each case is, whether the foregoing

statutes of Kansas are in conflict with that clause of the

Fourteenth Amendment, which provides that “no State

shall make or enforce any law which shall abridge the

privileges or immunities of citizens of the United States;

nor shall any State deprive any person of life, liberty, or

property, without due process of law.”

[The Court canvasses prior cases and reasons that it is

within a state’s police powers to prohibit alcohol sales and

manufacture.]

Undoubtedly the State, when providing, by legislation, for

the protection of the public health, the public morals, or

the public safety, is subject to the paramount authority of

the Constitution of the United States, and ma y not violate

rights secured or guaranteed by that instrument, or interfere

with the execution of the powers confided to the general

government. Henderson v. Mayor of New York, 92 U.S. 259;

Railroad Co. v. Husen, 95 U.S. 465; New Orleans Gas Co. v.

Louisiana Light Co., 115 U.S. 650; Walling v. Michigan, 116

U.S. 446; Yick Wo v. Hopkins, 118 U.S. 356; Morgan’s

Steamship Co. v. Louisiana Board of Health, 118 U.S. 455.

Upon this ground – if we do not misapprehend the

position of defendants – it is contended that, as the primary

and principal use of beer is as a beverage; as their respective

breweries were erected when it was lawful to engage in the

manufacture of beer for every purpose; as such

establishments will become of no value as property, or, at

least, will be materially diminished in value, if not employed

in the manufacture of beer for every purpose; the

prohibition upon their being so employed is, in effect, a

taking of property for public use without compensation,

and depriving the citizen of his property without due

process of law. In other words, although the State, in the

exercise of her police powers, may lawfully prohibit the

manufacture and sale, within her limits, of intoxicating

liquors to be used as a beverage, legislation having that