POLICE POWER: PROPER AND IMPROPER MEANINGS.

Exact definition of legal terms is as rare as desirable. It is perhaps largely due to this desirability that it is a rare condition. In an effort to reach a common and accepted ground as to the meaning of terms, it is easy to imagine so many individual suggestions being made, that confusion, the very thing attempted to be prevented, has been increased.

The term "police power" is a case in point. There are, at most, few terms the meaning of which are more indefinite, and more frequently distorted. This is true, not because definition has not been attempted, but because it has been attempted so frequently as to produce definitions with every shade of meaning, both as to the kind and degree of content. Thus a leading law lexicon states that: "This power must be clearly defined from the administration of criminal law, and from the police regulations and the police authority, nor should it be confused with eminent domain, as it sometimes has been done, nor with taxation."" On the other hand, Judge McClain, in his book on Constitutional law, refers to the police power in part as: "The authority to declare what acts shall constitute crimes, and to provide for the trial and punishment thereof." And the following definition clearly includes not only the division of law known as criminal justice, but the power of eminent domain, taxation, foreign relations, and war as well: "The police power of a state is that power which is necessary for its preservation and without which it cannot survive the purpose for which it was formed.''

It is here proposed to give brief consideration to the con

1 Bouvier (Rawley's Third Revision) Law Dictionary 2616.

2 McClain: Constitutional Law in the United States 91.

3 Ex parte, Rowe 59 So. 69, 70;

4 Ala. App. 254. The above definitions are given as examples and with no intention of selecting the most practicable that being the purpose of a later section.

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.*

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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,' 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," it is clearly the opinion that the power is for the public benefit.

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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,

p. 3.

5 Appeal of Allyn, 81 Conn. 534; 23 L. R. A. (N.S.) 630; 12 Am. St. Rep. 225; 71 Atl. 794, 796.

• Beer Co. v. State of Mass. 97 U. S. 25, 24 L. Ed. 989, 1877.

7State ex rel. Beck v. Wagner, 77 Minn. 483, 494; 80 N. W. 633; 77 Am. St. Rep. 681; 46 L. R. A. 422, 1899.

8

public safety, order, morals, and health. This fact is clearly stated in dictum of the United States Supreme Court thus: "Whatever differences of opinion may exist as to the extent and boundaries of the police power, 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 and property of its citizens, and the preservation of the good order and public morals." And again, the same. court in a subsequent dictum, notes that: "The possession and enjoyment of all rights are subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, good order and morals of the community." 10 Other of the narrower definitions might be quoted to demonstrate the same fact.1

11

On the other hand the broader definitions differ from the ones above quoted, not because they do not include the primary social interests, but because they include powers additional to the primary social interests. Thus it should be clear that in the following definitions: the police power is "the power vested in the legislature to make such laws as they shall judge to be for the good of the commonwealth and its subject, ," 12 the primary social interests are included. And in the statement that "police power, in its broadest sense, as sometimes defined, includes all legislation and almost every function of civil government," 13 they also are included, for laws in behalf of primary social interests both effect the "good of the commonwealth" and their promotion is a "function of government.” 14

8 Freuend; Police Power, Sec. 9, p. 7.

9 Beer Co. v. State of Mass., 97 U. S. 25, 24 L. Ed. 989, 1877.

10 Crowley v. Christensen, 137 U. S. 86; 11 S. C. 13.

11 8 "Cyc." 863, 864; City of Rochester v. West, 29 N. Y. App. Div. 125; 51 N. Y. S. 482; Lawton v. Steel, 152 U. S. 133, 14 S. C. 499; Cooley, Const. Lim. 6 ed., p. 704; Pomeroy's Constitutional Law, 10 ed., p. 314.

12 Brown v. Walker, 204 U. S. 311; 27 S. C. 289; 51 Led. 499, Dictum.

13 Dictum Barbier v. Connelly, 113 U. S. 275.

14 See also Ex parte, Rowe, 59 So. 69, 70, 4 Ala. App. 254; Appeal of Allyn, 71 Atl. 794, 796; 81 Conn., 534, 2 L. R. A. (N. S.) 630, 129 Am. St. Rep. 225; Black's Const. Law, p. 290, Hare, American Const. Law, Vol. II, 766; Willoughby, The Constitution 1231, 1232; Com. v. Alger, 7 Cush 53, 84; Cooley, Const. Lim. 572; State ex rel. Beek v. Wagner, 77 Minn. 483, 494, 80 N. W. 633, 778, 1134; 77 Am. St. Rep. 681, 46 L. R. A. 442, 1899.

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 " as to the propriety of such an extension.18

17

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." 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 justify use of broad definition in Licence Cases, 5 Howard (U. S.) 504.

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

74; Blagley; The Term Police Power; 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.

power" thus: "Since however in exercising the power of regulating their own purely internal affairs, whether trading or police, the states may sometimes enact laws, the validity of which depends on this interfering with, and being contrary to, an act of congress passed in persuance of the constitution, the court will enter upon the inquiry whether the (se) laws . . have come into colliShould this collision

sion with an act of congress exist, it will be immaterial whether those laws were passed in virtue of a concurrent power to regulate commerce with foreign nations and among the several states, or in virtue of a power to regulate their domestic trade and police." The clear implication of this statement is that the power of the states to regulate their domestic commerce, and such power as they possess over commerce not domestic, is separate and distinct from the power termed the "power to regulate... their police." Although this distinction is not one that greatly limit the scope of the term, it at least excludes one class of power, clearly included by the most comprehensive definitions, quoted and refererd to." In 1837 the same court speaking through Barbour, J.22 again gave evidence of regarding the police power as less comprehensive than subsequently considered. The question before the court was the power of the State of New York to require certain reports from ship captains discharging passengers at ports of the state, irrespective of the origining of the passengers, and of the ship carrying them. The court said: "If, as we think, it be a regulation not of commerce, but police, then it is not taken from the states. It appears from the whole scope of the law, that the object of the legislature was to prevent New York being burdened by an influx of persons brought thither in ships, either from foreign countries or from any other of the states: . . . Now we hold that the end. (is) are within the competency

off the states . . Let us see what purposes are left to

21 Supra.

VOL. L.

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22 New York v. Miln, 11 Peters (U. S.) 130, 1837.