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THE POLICE POWER.

The subject assigned me for discussion in this paper embraces a consideration of this sovereign power and some of its incidents.

The following authorities, if they do not define, will show the general nature and scope of that reserved power inherent in every State, termed the police power :

“The police of a State, in a comprehensive sense, embraces its system of internal regulation, by which it is sought not only to preserve the public order and to prevent offenses against the State, but also to establish, for the intercourse of citizen with citizen, those rules of good manners and good neighborhood which are calculated to prevent a conflict of rights and to insure to each the uninterrupted enjoyment of his own so far as reasonably consistent with a like enjoyment of rights by others.” Cooley's Const. Lim. 572.

“We think it a settled principle," says Chief Justice Shaw,“growing out of the nature of well ordered society, that every holder of property, however absolute and unqualified may be his title, holds it under the implied liability that his use of it shall not be injurious to the equal enjoyment of others having an equal right to the enjoyment of their property, nor injurious to the rights of the community. All property in this commonwealth is held subject to those regulations which are necessary to the common good and general welfare. Rights of property, like all other social and conventional rights, are subject to such reasonable limitations in their enjoyment as shall prevent them from being injurious, and to such reasonable restraints and regulations established by law as the Legislature, under the governing and controlling power vested in them by the Constitution, may think necessary and expedient. This is very different from the right of eminent domain-the right of government to take and appropriate property whenever the public exigency re

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quires it, which can only be done on condition of providing a reasonable compensation therefor. The power we refer to is rather the police power; the power vested in the Legislature by the Constitution to make, ordain, and establish all manner of wholesome and reasonable laws, statutes and ordinances, either with penalties or without, not repugnant to the Constitution, as they shall judge to be for the good and welfare of the commonwealth, and of the subjects of the same. It is much easier to perceive and realize the existence and sources of this power than to mark the boundaries or prescribe limits to its exercise."

Commonwealth v. Alger, 7 Cushing, 84.

The late Mr. Justice Walker, in delivering the opinion of the Supreme Court of Illinois, uses this language :

“The power to enact police regulations operates upon all alike. This is a fundamental principle, and lies at the foundation of society itself. It is yielded by each member, when he enters society, for the benefit of all. It is inci. dent to, and a part of government itself, and need not be expressly reserved, when it grants rights or property to individuals or corporate bodies, as they take subservient to this right. Although individual rights may be said to be absolute, they are all subject to be controlled in their enjoyment for the general good. *

* * The law has imposed all these and many other duties and prohibitions upon individuals for the protection of citizens, their morals and property ; and notwithstanding it may appear in some degree to abridge individuals of a portion of their rights, yet we are not aware that their constitutionality has ever been challenged. Their eminent justice and propriety has commended them to the community at large as highly proper. The exercise of the power may be referred to the maxim, Salus populi suprema est lex."

0. & M. R. Co. v. McClelland, 25 Ill. 144.

The police powers are thus defined by Mr. Chief Justice Taney in the License Cases :

“But what are the police powers of a State? They are nothing more or less than the powers of government inherent in every sovereignty to the extent of its dominions. And whether a State passes a quarantine law, or a law to punish offenses, or to establish courts of justice, or requiring certain instruments to be recorded, or to regulate commerce within its own limits, in every case it exercises the same power; that is to say, the power of sovereignty, the power to govern men and things within the limits of its dominion."

License Cases, 5 Howard, 583. In the opinion of the court in Munn v. Illinois, supra, by Mr. Chief Justice Waite, we find the following:

"From this source (referring to the maxim sic utere tuo ut alienum non lædas) come the police powers, which, as was said by Mr. Chief Justice Taney, in the License Cases, 5 How. 583, are nothing more or less than the powers of government inherent in every sovereignty, that is to say, the

power to govern men and things.' Under these powers the government regulates the conduct of its citizens one toward another, and the manner in which each shall use his own property, when such regulation becomes necessary for the public good. In their exercise it has been customary in England from time immemorial, and in this country from its first colonization, to regulate ferries, common carriers, hackmen, bakers, millers, wharfingers, inn-keepers, etc., and in so doing to fix a maximum of charge to be made for services rendered, accommodations furnished, and articles sold."

The courts have uniformly traced to this source the power of the State to pass laws of this nature. Thus in the case of Chosen Freeholders of Hudson Co. v. The State, (4 Zabriskie, 728,) the Supreme Court of New Jersey say:

“ The regulation of tolls of bridges and turnpike roads, and the fares of railroads and ferries, is in no just sense a regulation of commerce, and has never been so regarded. It

is a part of that general power of police essential to every State, and which could not be with safety, and has not been, surrendered to the general government."

We have cited these authorities at some length, indicating the general scope and nature of the police powers of the State, for the reason that the general rule is that these powers are inalienable, and a State Legislature cannot bind itself by contract not to exercise them.

In the opinion of the Supreme Court of the United States in Stone v. Mississippi, 101 U. S. 814, after referring to the Dartmouth College Case, 4 Wheaton, 518, holding that a charter to a private corporation may contain a contract which cannot be impaired by subsequent legislation, it is said :

“In this connection, however, it is to be kept in mind that it is not the charter which is protected, but only any contract the charter may contain. If there is no contract, there is nothing in the grant on which the Constitution can act. Consequently the first inquiry in this class of cases always is, whether a contract has in fact been entered into, and if so, what its obligations are.

And after discussing the terms of the charter, which authorized the maintenance of a lottery for the term of twenty-five years for an express pecuniary consideration, the opinion proceeds :

“If the Legislature that granted this charter had the power to bind the people of the State and all succeeding Legislatures to allow the corporation to continue its corporate existence, there is no doubt about the sufficiency of the language employed to effect that object.

Whether the alleged contract exists, therefore, or not, depends on the authority of the Legislature to bind the State, and the people of the State, in that way. All agree that the Legislature cannot bargain away the police power of a State.”

The court then quote with approbation the following from Metropolitan Board of Ercise v. Barrie, 34 N. Y. 657 : “Irrevocable grants of property and franchises may be made if

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they do not impair the supreme authority to make laws for the government of the State; but no e gislature can curtail the power of its successors to make such laws as they deem proper in matters of police.” And further on (p. 820) the court lay down these general propositions, the soundness of which ought never to be questioned :

“But the power of governing is a trust committed by the people to the government, no part of which can be granted away.

“The contracts which the Constitution protects are those that relate to property rights, not governmental.” 101 U.S. 802.

In the case of Beer Company v. Massachusetts, 97 U. S. 25, it is said:

“But there is another question in the case, which, as it seems to us, is equally decisive. The plaintiff in error was incorporated for the purpose of manufacturing malt liquors in all their varieties,' it is true ; and the right to manufacture, undoubtedly, as the plaintiff's counsel contends, included the incidental right to dispose of the liquors manufactured. But although this right or capacity was thus granted in the most unqualified form, it cannot be construed as conferring any greater or more sacred right than any citizen had to manufacture malt liquor; nor as exempting the corporation from any control therein to which a citizen would be subject, if the interests of the community should require it. If the public safety or the public morals require the discontinuance of any manufacture or traffic, the hand of the Legislature cannot be stayed from providing for its discontinuance, by any incidental inconvenience which individuals or corporations may suffer. All rights are held subject to the police power of the State.

Whatever differences of opinion may exist as to the extent and boundaries of the police power, and however difficult it may be to render a satisfactory definition of it, there seems to be no doubt that it does extend to the protection of the lives, health, and property of the citizens,

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