the states. The Federalist in the 45 number speaking of this subject, says: 'the power reserved to the several states will extend to all the objects which in the ordinary course of affairs concern the lives, liberties and properties of the people; and the internal order, improvement and prosperity of the state .'. If (this regulation) is to secure that very welfare "The court here clearly distinguishes between the power over commerce, and the police power, and indicates that the term is at least no more comprehensive and probably less so than the limits provided by the passage quoted from the Federalist. This again is clear evidence that the early uses of the term were considerably less comprehensive than the broad definitions now current. That the court regarded the term as even less comprehensive than the passage from the Federalist is clear from a later statement in the same opinion.23 "But we do not put our opinion on this ground. We chose to plant ourselves on what we consider impregnable positions. They are these: That the state has the same undeniable and unlimited jurisdiction as any foreign nation, where that jurisdiction is not surrendered or restrained by the Constitution of the United States. That by virtue of this it is not only the right but the burden and solemn duty of a state to advance the safety, happiness and prosperity of its people, and to provide for its general welfare That all those pow

to what may .

be called in

ers which relate ternal police, are not thus surrendered or restrained." The implication of this passage is that at least the powers of "internal police" as thought of by the court would not include certain, governmental, administrative, etc., acts, and the branch of adjective law, which would be included in the quotation from the Federalist. A further instructive reference to the police power is made by Story, J., in a dissenting opinion submitted at the same case. "I admit in the most unhesitating manner, that the states have a right to pass health laws, and quarantine laws and other police

23 At p. 139.

24

24 Supra, 23.

laws.'' 25 In 1842 it was clearly indicated that the court would restrict the breadth of the term by the following language: "And it could hardly be maintained that the arrest and confinement of the fugitive in a public prison under such circumstances until he could be delivered to his owner, was necessary for the internal police of the state, and therefore a justifiable exercise of the powers of police." 28

Irrespective of the arguments already advanced in favor of the narrow definition in general use, sufficient consideration justification is found upon consideration of logic alone. It should be quite evident that the protection of the public health, morals, and safety, and the protection from fraud, are different in kind from other clearly recognized public purposes, such as taxation, which is: "The public enforced contribution of persons and property, levied by the authority of the state for the support of the government and all public needs"; 27 "A pecuniary burden imposed for the support of the government"; 28 and eminent domain which is exercised where: ". private property is taken for public use, and the owner is entitled to compensation therefore"; 20 and from the field of criminal justice and civil justice denoted as remedial.

29

66

In certain lines of cases where close reasoning is necessary because of the nature of the matter involved, courts have shown such a disposition to regard the police power narrowly, that there is some justification for concluding that in all decisions necessitating close distinction between what is and what is not the police power, made subsequent to the establishment of the "due process of law" restriction upon the police power of legislature, the narrow meaning has been adhered to.

25 At p. 153. Other references to power, Brown v. Md., 12 Wheat (U. S.) 419, 444, 1827; Marshall Ch. J.

26 Dictum Prigg v. Pa. 16 Peters (U. S.) 539, 1824. For explanation of its later extension see Blayley, "The Term Police Power, 59 Cent. L. Jr. 486, 1904.

27 Cooley Taxation, Sec. 1; Opinion of Justices, 58 Me. 591.

28 U. S. v. Rry. Co., 17 Wall. (U. S.) 322, 21 L. Ed. 597.

29 C. B. & Q. Rry. Co. v. People ex rel. Griswold 72 N. E. 219, 224, 212 I. 103 (citing Frazer v. Chicago, 57 N. E. 1055, 186 Ill. 480, 51 L. R. A. 306, 78 Am. St. Rep. 296.

34

33

One of the cases in which this close distinction is necessary is in the alteration of the provision of corporate charter subsequent to issue. It is admitted in general that corporate charters constitute contracts with the state,30 to which applies the constitutional prohibition of the violation of contracts.31 Thus courts will hold unconstitutional laws rendering inoperative the previously granted burial privileges of a cemetery association, if it clearly appears that there is no question of the public health involved, while on the other hand regulations suppressing lotteries, changing grade crossings, prohibiting the conduct of fertilizer plants, 35 and slaughter houses, the sale of intoxicating liquors, making railroad companies liable for stock killed in the operation of the same,38 and many others falling within the narrow scope of the police power, are upheld irrespective of the fact that they interfere with the unrestricted enjoyment of privileges granted in corporate charters. These decisions go on the ground that the police power cannot be bargained away by contract or otherwise, but that regulations for other purposes interfering with such provisions embodied in contract cannot be upheld because they are not included within the police power.

37

36

An apparent exception to the assertion just made respecting the refusal of the courts to uphold any statutory interference with the contract portion of corporate charters is that changes of remedies existing at the time the charter was issued are upheld. Closer inspection of cases in which such provisions are upheld however clearly shows that it is done upon entirely different groudns, the reason being, not because the power to change remedies is a part of the police

30 Bouvier, Law Dict. (Rawley's Third Revision) 2616; Freuend Police Power, Sec. 3, p. 3; C. W. Cook, What is the Police Power, 7 Col. L. J. 322.

31 U. S. Const., Art. 1, Sec. 10.

32 Town of Lake View v. Rose Hill Cemetery Co., 70 Ill. 191; 22 Am. Rep. 71, 1873.

33 Stone v. Mississippi, 101 U. S. 814, 1879.

34 N. Y. & N. E. Rry. Co. v. Bristol, 151 U. S. 556, 1893.

35 Fertilizer Co. v. Hyde Park, 97 U. S. 659.

36 Butchers Union S. Y. Co. v. C. C. S. Y. Co., 111 U. S. 746, 1883.

37 Boston Beer Co. v. Mass., 97 U. S. 25, 24 L. Ed. 989, 1879.

38 Thorpe v. Ry. Co., 27 Vt. 140; 62 Am. Dec. 625, 1890.

power by which a contract may be altered, but because the remedy is not a part of the contract," and hence there had been no violation of the obligation of contracts, within the constitutional prohibition. Another evidence of this distinction is that where it can be proved that a given remedy is a part of the contract in question, change thereof will be considered a violation of contract, and hence unconstitutional.*0 Proof of this fact is generally made by showing that the change of remedy makes impossible the execution of the admitted terms of the contract. This places the apparent exception of change of remedies clearly in accord with the above stated rule. If the particular change of remedy is declared unconstitutional, it is not a part of the police power, because police regulations changing the terms of a contract are not declared unconstitutional, for the very reason that they are police regulations. On the other hand, if the changes are upheld it is not because they are police regulations but because they do not affect the contract. Among the remedial changes that have been upheld upon this ground a few are: changes in the method of valuing property at mortgage foreclosure," corporate stockholders' liability," methods of service upon corporations," requirements as to payment of bank depositors," statute of limitations.45

Distinction between remedial legislation and police measures is not only recognized at present, but such recognition has been given historically. Blackstone divides laws as follows: ". . . every law may be said to consist of several

39 Hepburn v. Curts., 32 Am. Dec. 760, ? Watts 300, 1838.

40 Dictum Bronson v. Kinzie, 1 How (U. S.) 311; Von Hoffman v. Quincy, 4 Wall. (U. S.) 535.

41 Williams v. Waldso, 3 Scan (Ill.) 246, 1841.

42 Coffin v. Rich, 45 Me. 507; 71 Am. Dec. 559, 1858.

43 Smith v. Bryan, 43 Ill. 364, 1864.

44 Banker's Bank v. Willard, 24 Ill. 433; 76 Am. Dec. 755, 1886.

45 Wood v.,Chield, 20 Ill. 211 1858. In many cases that were noted, but one justified remedial changes as police regulations (Barlow v. Gregory, 31 Conn. 261, 1863) which involved the constitutionality of a law changing the method of counting days of grace when one was a holiday, thus being clearly remedial, and much in the minority.

parts; one declaratory, whereby the rights to be observed and the wrongs to be eschewed are clearly defined and laid down; another directory; whereby the subject is instructed and conjoined to observe those rights, and to abstain from the commission of those wrongs; a third remedial whereby a method is pointed out to cover a man's private rights or redress his private wrongs; and to which may usually be added the fourth, usually termed the sanction, or our declaratory branch of the law, whereby it is signified what evil or penalty shall be incurred by those who commit wrongs or transgressions, or neglect their duty." 46 It is clear that the above statement of the constituent parts of a law recognize remedial provisions as separate and distinct from those establishing rights and duies.

Hence it would seem that those definitions of the police power, confining its scope to regulations in behalf of the primary social interests: the public health, morals, safety, and economic welfare, would seem to be preferable upon the basis of considerations of expediency, logic, the original use of the term, and the practice of the courts where close definition is actually necessary.

University of Wisconsin.

L. DEE MALLONEE.

46 Wendell, Blackstone's Commentaries on the Law of England, Vol.

1, p. 53ff.