Page images

fusion surrounding the terms “police power” and to arrive at some conclusion as to its proper use.

Notwithstanding the confusion in definitions of police power, all definitions noted agree upon certain general properties possessed.

In the first place it is universally admitted that this power is exercised for the purpose of advancing the general public welfare of the state. Thus whether the definition be extremely broad in its scope, as the statement that: The term 'police power' means the general power of governing its people and domains belonging to every sovereignity,''s or the narrow one that: “... it does extend to the protection of the lives, health and property of the citizens, and to the preservation of the good order and the public morals,” 6 it is clearly the opinion that the power is for the public benefit.

It is also generally admitted that the methods of the police power are compulsion. It should take no argument to show that the police power is an instrument of sovereignty acting to restrict private rights in behalf of the public. The power compels the complete or partial abandonment of rights, otherwise unrestricted, and in so doing compels a corresponding inhibition of their enjoyment."

Another characteristic that may be noted as possessed by all definitions of the police power, is that all include the powers enumerated and included by the definitions of minimum breadth. That is all definitions recognize certain minimum limits as constituting or including the police power. The great confusion with regard to the term is due to disagreement and dispute as to what extension, if any, should be made of these minimum limits. Thus the narrow definitions of the police power confine its extent to the socalled “primary social interests" by which is meant the

4 Freuend: Police Power. Sec. 3. 6 Beer Co. v. State of Mass. 97 U. p. 3.

S. 25, 24 L. Ed. 989, 1877.

State ex rel. Beck v. Wagner, 77 5 Appeal of Allyn, 81 Conn. 534; Minn. 483, 494; 80 N. W. 633; 77 23 L. R. A. (N.S.) 630; 12 Am. St. Am. St. Rep. 681; 46 L. R. A. 422, Rep. 225; 71 Atl. 794, 796.


[ocr errors]

From what has been said above, 15 it should be clear that the task of defining the term “police power” is not one of volving a new definition but of adopting and justifying one of the many already evolved. The multitude of definitions (including an infinite variety of powers renders new definition unnecessary, if possible, but at the same time makes selection and the justification of such selection correspondingly difficult.

The definitions confining the police power to the primary social interests would seem to be far superior both for general use, to those more inclusive in extent. An important reason why the narrower definitions are more suitable for general use has already been indicated, by showing that there is no dispute as to the minimum limits of the police power, the only dispute being as to what extensions should be made from those minimum limits. 16 The mere fact that the propriety of extending the term to include more than the primary social interests is questioned, should be important argument against such extension. It is clear that to use the term in its narrowest sense is to more nearly convey to all a clear conception of the meaning of the term, whereas to extend it beyond the universally conceded limits is to introduce confusion and argument 17 as to the propriety of such an extension.18

A second argument in favor of adopting the narrower definition is that was the original meaning of the term, and it was only after the confusing influence of the hot disputes over slavery and states rights had been felt that there was any departure from the proper and original meaning. 19 In 1824 Marshall, Ch. J.,20 in referring to the power of states to pass laws interfering with foreign commerce, first referred to the power afterwards designated the “police

15 Supra, pp. 1-5. 16 Supra, 1

17 Argument felt necessary to jus tify use of broad definition in Li. cence Cases, 5 Howard (U. S.) 504.

18 Noted but not explained in Guthris: The XIV Amendment, p.

74; Blagley; The Term Police Pow. er; 59 Cent. Law Jr. 486, 1904.

19 Blagley; The Term Police Power; 59 Cent. Law. Jr. 486, 1904.

20 Dictum, Gibbons V. Ogden, 9 Wheat (U. S.) 1,210, 1824.

hat th. Ver court hes

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 powers which relate ... to what may.... be called internal 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.24 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 Supra, 23.

« PreviousContinue »