Text: Public Licenses and Private Rights, 33 Oregon Law Review 1 (Barnett, 1953) Because of the rapidly increasing application of the license system to more and more activities by the Federal, state, and local governments, the further consideration of the relation of public licenses to private rights becomes more and more important. The popular understanding of the word "license" [required by government for the performance of various activities] undoubtedly is a permission to do something which, without the license, would not be allowable. The object of the license is to confer a right that does not exist without the license. Standard Oil Co. v. Commonwealth, 119 Ky. 75, 82 S.W. 1020, 1021 (1904); Hackett v. Wilson, 12 Or. 25, 37, 6 Pac. 652 (1885), Reser v. Umatilla Co, 48 Or. 326, 327, 86 Pac. 595 (1906); State v. Martin, 180 Or. 459, 474, 176 P.2d 636, 643 (1947); [33 Or. L. Rev. 3, Fn. 2]. But, in fact, there is no grant of "privilege" (benefaction) of any kind whatever in a public license. Courts sometimes see this, and sometimes they do not; and so the law has become greatly confused. It will be apparent that principles applicable to public licenses (malefactions) have been confused with those applicable to private licenses (benefactions), largely because the two unrelated concepts have the same name; and that a false analogy of "licenses" (malefactions) to true "privileges" (benefactions) granted by the governments has probably made more mischief in this connection. But these two concepts of privilege have no relation whatever to that of a public "license." [33 Or. L. Rev. 3-4]. A license is merely a permission to do what is unlawful at common law, or is made so by some statute or ordinance, including the one authorizing or requiring the license. The Laundry License Case, 22 Fed. 701, 703 (D. Or. 1885); [33 Or. L. Rev. 3, Fn. 2]. And so courts have, in this connection, distinguished "licensed" vocations from vocations "lawful per se." U.S. v. McFarland, 28 App. D.C. 552, 568 (1907); Peginis v. Atlanta, 132 Ga. 302, 63 S.E. 857, 858 (1909); [33 Or. L. Rev. 3, Fn. 3]. A license is "a personal privilege,...conveys no estate or interest, and is revocable at the pleasure of the party making it." De Haro v. U.S., 5 Wall. 599, 627 (U.S. 1866); [33 Or. L. Rev. 3, Fn. 5]. "One-half of the doubts in life arise from the defects of language, and if this instrument had been called an exemption, instead of a license, it would have given a better ideal of its character. Licensing acts, in fact, in legislation, are universally restraining acts ..." Johnson, J., concurring, Gibson v. Ogden, 9 Wheat. 1, 222, 232 (U.S. 1824). See also Creighton & Smart, Introductory Logic 79 (5th ed. 1946); Cohen and Nagel, Introduction to Logic and Scientific Method 17 (1947). [33 Or. L. Rev. 3, Fn. 6]., The distinction between a true "privilege" and a "right" ("vested right") is historical rather than logical. "Frequently a force of history is felt in the distinction between the citizen's rights and a favor accorded to him by government. It is the difference between taking something away from one who has always had it and giving someone something he has no right to demand. To a large degree what one 'has' which may be 'taken away' is an accident of history.." Hale, Hearings: The Right to a Trial, with Special Reference to Administrative Powers, 42 Ill. L. Rev. 749, 775 (1948). So the term "right" or "vested right" itself "indicates little beyond the ideal of inviolability." Freund, Police Power 602 (1909). [33 Or.L.Rev. 4, Fn. 7]. It is thus very clear then that "the requirement of a license is not intended as a privilege, but as a common restraint" ---and a restraint upon activities authorized by the common law. But, as has been said, "a license law ... assumes the illegality of the business, and denounces penalties upon those who pursue it without previously protecting themselves by procuring a license." State v. Parker Distilling Co., 236 Mo. 219, 139 S.W. 453, 462 (1911); [33 Or. L. Rev. 4, Fn. 11]. A license is merely a permit or privilege to do what otherwise would be unlawful. The purpose of it is to regulate and control the manner in which the business is conducted, and prevent its being carried on in such a way as to ignore the public interest. Palmetto Fire Ins. Co. v. Beha, 13 F.2d 500, 503 (S.D. N.Y. 1926); [33 Or. L. Rev. 5, Fn. 13]. The form of licensing to be considered here is the administrative lifting of a legislative prohibition. The primary legislative thought in licensing is not prohibition but regulation, to be made effective by the formal general denial of a right which is then made individually available by an administrative act of approval, certification, consent or permit. Freund, Licensing, 5 Encyc. Soc. Sci. 447 (1933); [33 Or. L. Rev. 5, Fn. 13]. That is just why licenses are required --- to restrict the liberty in activities already existing at common law. [33 Or. L. Rev. 5-6]. The "liberty" guaranteed by the Constitution "must be interpreted in light of the common law, the principles and history of which were familiarly known to the framers of the Constitution." [U.S. v. Wong Kim Ark, 169 U.S. 649, 654 (1898)]. This liberty denotes the "right of the individual ... to engage in any of the common occupations of life ... and generally to enjoy those privileges long recognized at common law as essential to the ordinary pursuit of happiness by free men." Meyer v. Nebraska, 262 U.S. 390, 399; [33 Or. L. Rev. 6, Fn. 19]. Hutcheson, The Common Law of the Constitution, 15 Tex. L. Rev. 317 (1937); Barnett, Vested Rights in the Common Law, 27 Or. L. Rev. 25 (1947); [33 Or. L. Rev. 6, Fn. 21]. Power of State to Restrict One¹s Right to Engage in Lawful Occupation, 25 Va. L. Rev. 219 (1938); [33 Or. L. Rev. 6, Fn. 22]. The opportunity to become a citizen of the United States is said to be merely a privilege and not a right. Tutun v. U.S., 270 U.S. 568, 578 (1926). [33 Or. L. Rev. 7, Fn. 24]. It has been stated that "numerous authorities ... hold that a license is not within the protection of the Constitution." [Fn. 25 citing, State v. Cote, 122 Me. 452, 120 Atl. 538 (1923)]. However, if some Constitutional protection may be denied, there is no good reason in logic why all may not be denied. Frost Trucking Co. v. Railroad Comm¹n., 271 U.S. 583, 593-594 (1926). [33 Or. L. Rev. 8, Fn. 26]. It is an essential ingredient of a legal license, that it confers no right, or estate, or vested interest, but is at all times revocable at the pleasure of the party that grants it ... [33 Or. L. Rev. 8, Fn. 28]. Oppenheim, Unconstitutional Conditions and State Powers, 26 Mich. L. Rev. 176 (1928); [33 Or. L. Rev. 9, Fn. 30]. It would be a palpable incongruity to strike down an act of state legislation which, by words of express divestment, seeks to strip the citizen of rights guaranteed by the Federal Constitution, but to uphold an act by which the same result is accomplished under the guise of a surrender of a right in exchange for a valuable privilege which the state threatens otherwise to withhold. It is not necessary to challenge the proposition that, as a general rule, the state, having power to deny a privilege altogether, may grant it upon such conditions as it sees fit to impose. But the power of the state in that respect is not unlimited; and one of the limitations is that it may not impose conditions which require the relinquishment of constitutional rights. Frost Trucking Co. v. Railroad Comm¹n, supra, at 593-594 (1926); [33 Or. L. Rev. 10, Fn. 32]. "...the acceptance of a license, in whatever form, will not impose upon the licensee an obligation to respect or to comply with any provisions of the statute or the regulations proscribed ... that are repugnant to the Constitution of the United States." Cargill Co. v. Minnesota, 180 U.S. 452, 468 (1901); [33 Or. L. Rev. 10, Fn. 33]. Being a privilege, it [a motor vehicle license] can be given or withheld... As a general rule, the state having the power to deny a privilege altogether may grant it upon conditions, not requiring relinquishment of constitutional rights, as it sees fit to impose....A constitutional power cannot be used by way of condition to obtain an unconstitutional result. McIntyre v. Harrison, 72 Ga. 65, 157 S.E. 499, 506-507 (1931); [33 Or. L. Rev. 11, Fn. 34]. If the wayward courts had only realized that a "license" is not a grant of a new "privilege," but, on the contrary, a restriction on a "right" already existing, all this absurd confusion, with resulting deprivation of constitutional protections, would have been avoided. [33 Or. L. Rev. 15]. N.B. Citizens Savings and Loan v. Topeka, 87 U.S. 455, 461, 20 Wall. 655 (1874) http://laws.findlaw.com/us/87/655.html ; Hurtado v. California, 110 U.S. 516, 536 (1884) http://laws.findlaw.com/us/110/516.html (It must be conceded that there are such rights in every free government beyond the control of the state.); Cf. Adair v. U.S., 208 U.S. 161, 28 S.Ct. 277 (1908) http://laws.findlaw.com/us/208/161.html ; Adkins v. Children¹s Hospital, 261 U.S. 525, 43 S.Ct. 394 (1923) http://laws.findlaw.com/us/261/525.html ; Taxing the Exercise of Natural Rights, Harvard Legal Essays (Maguire, 273, 322 (1934)); and that class of Authority, infra.

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