Cyclopædia of Political Science, Political Economy, and the Political History of the United States

Edited by: Lalor, John J.
(?-1899)
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Editor/Trans.
First Pub. Date
1881
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New York: Maynard, Merrill, and Co.
Pub. Date
1899
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Includes articles by Frédéric Bastiat, Gustave de Molinari, Henry George, J. B. Say, Francis A. Walker, and more.
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POLICE POWER OF A STATE

III.65.1

POLICE POWER OF A STATE. The police power of the state is an authority conferred by the American constitutional system upon the individual states, through which they are enabled to establish a special department of police; adopt such regulations as tend to prevent the commission of fraud, violence, or other offenses against the state; aid in the arrest of criminals, and secure generally the comfort, health and prosperity of the state, by preserving the public order, preventing a conflict of rights in the common intercourse of the citizen, and insuring to each an uninterrupted enjoyment of all the privileges conferred upon him by the laws of his country. The organization of a state police, which shall fulfill its functions effectively, and yet leave to the individual unimpaired freedom under the liberal laws of a republican form of government, is one of the most delicate tasks ever intrusted to the lawgiver.

III.65.2

—Blackstone defines the system to be "the due regulation and domestic order of the kingdom, whereby the inhabitants of a state, like members of a well-governed family, are bound to conform their general behavior to the rules of propriety, good neighborhood and good manners, and to be decent, industrious and inoffensive in their respective stations." (4 Bl. Com., 162.)

III.65.3

—Jeremy Bentham, in his "General View of Public Offenses," defines it to be a system of precaution for the prevention of crimes or of calamities.

III.65.4

—With regard to its effect upon the use and enjoyment of property, the object being to exhibit the universality of its presence, and to define the limits which settled principles of constitutional law assign to its interference, Chief Justice Shaw declares it to be a settled principle (Commonwealth vs. Alger, 7 Cushing, 84), that every holder of property, however absolute may be his title, holds it under an implied liability that its use shall not be injurious to the equal rights of another in the enjoyment of his property; nor injurious to the rights of the people of a community. And the right to adopt regulations necessary to enforce this limitation by legislative enactments under the controlling power vested in them by the national constitution, differs from the right of eminent domain, which only permits a government to possess itself of private property whenever the public needs require it, on the condition of granting a reasonable compensation therefor. It is less difficult to conceive of the existence and sources of this power which permits the adoption of various laws, statutes and ordinances for the good and welfare of the community, than to define its limits and lay down the rules for its exercise.

III.65.5

—It is a recognized principle that the national government can not, through any of its departments, invade the reserved rights of the states, and assume the power of supervising their police regulations, when they do not conflict with the national sovereignty and the exercise of federal authority conferred by the constitution. Nevertheless, the powers of the states may be so employed as to conflict with the jurisdiction of the national government, and serious questions have arisen between the police power of the state and the authority conferred upon congress by the constitution. To prevent the state from operating within the sphere of the national government, in the exercise of this conferred power, its limits can be extended no further than a just regulation of its rights demands for the protection of the citizen of the state in the enjoyment of life, liberty, health and property. Says Cooley (Con. Lim., 574), "This subject has often been considered in its bearings upon the clause of the constitution of the United States, which forbids the states passing any laws violating the obligations of contracts; and invariably it has been held that this clause does not so far remove from state control the rights and properties which depend for their existence on enforcement of contracts, as to relieve them from the operation of such general regulations for the good government of the state and the protection of the rights of individuals as may be deemed important. All contracts and all rights, it is held, are subject to this power; and regulations which affect them may not only be established by the state, but must also be subject to change from time to time, with reference to the general well-being of the community, as circumstances change, or as experience demonstrates the necessity."

III.65.6

—Perhaps the most striking illustration of the principle here stated, will be found among the judicial decisions which hold that the rights insured to private corporations by their charters, and the manner of their exercise, are subject to such new regulations as from time to time may be made by the state, with a view to the public protection, health and safety and to properly guard the rights of other individuals and corporations. Although these charters are considered as contracts, and their rights held inviolable, it does not follow that they are removed from state regulation. Nevertheless, there must be a limit to the exercise of the police power of the state. The regulating ordinances must have reference to the comfort, safety or welfare of society; they must not conflict with any provisions of the charter, nor take from the corporation any of the essential rights and privileges which the charter confers. They must, in fact, be police regulations, and not amendments to the charter itself, as, where a corporation was chartered with the right to exact toll from passengers, a subsequent statute authorizing a certain class of passengers to travel free over the road was held to be void. (Pingrey vs. Washburn, 1 Aiken, 268.) The rule has been further held, that, while the corporate charter itself contained a provision empowering a legislature to alter, modify or repeal it, such a provision would not, on pretext of amendment or police regulation, have the effect to appropriate any portion of the corporate property to the public ouse. Nor would it justify an act requiring a railroad company to cause a proposed new street or highway to be taken across their track and all labor and materials necessary for the same to be furnished at their own expense. (Miller vs. New York & Erie R. R. Co., 21 Barb., 513.) Nor can a corporation be held liable for the obstruction of a river, by a subsequent amendment to a charter granting them the right to erect a bridge over a navigable stream, which must necessarily obstruct the said river. Nor can the police power of a state, in regulating the speed of railway carriages, extend further than the streets and public grounds of a city. But it can require all railroad corporations to fence their tracks, and hold them liable for the loss of all domestic animals killed thereon, and for the double reason of protection to domestic animals and to persons being transported in railway carriages. Under the common law rule, where a corporation has failed to obey the regulations adopted for its government, and injury has resulted therefrom, such disobedience would not make the corporation liable to the party injured, if his own negligence aided that of the corporation in producing the injury. Nevertheless, under the police power of the state, a legislature may enact such a law as shall hold the corporation liable for the animals thus destroyed, notwithstanding the negligence of the party injured. The state may likewise, under the same power, regulate the grade of railroads, and prescribe the way in which railroads shall cross each other, and apportion the expense of such crossings among the corporations owning the roads. It may also establish regulations requiring existing railroads to ring the bell and blow the whistle of their engines at all places on their roads where their approach might be dangerous to travel. And it has been held that the power may extend so far as to make such corporations liable as insurers for the safety of their passengers in the same manner they are by law liable as common carriers. (Thorpe vs. Rutland & Burlington R. R. Co., 27 Vt., 152.) And those statutes of the various states which grant an action to the representatives of persons killed by the neglect, default or wrongful act of another, may apply to corporations already chartered, and give a remedy for a wrong which the common law fails to supply.

III.65.7

—Another point where the police power of the state has by some been held to conflict with the federal constitution is, where by statute the sale of intoxicating liquors has been altogether prohibited. The weight of authority, however, determines the question thus: when these statutes merely assume to regulate and to prohibit sales by other persons than those licensed by public authority, there can be no question of a conflict with constitutional power entertained, as they are but simple police regulations of the same character as those which any state or community might adopt for the regulation of any class of trade or employment. Those which prohibit entirely the manufacture and sale of intoxicating liquors as a beverage, have been attacked as subversive of fundamental rights, and urged to be in violation of express provisions of the federal constitution relating to the commerce of the states. This view of the case, however, although strongly advocated, was not sustained by the supreme court of the United States in the noted license cases. The majority of the court expressed the opinion that the introduction into a state of imported liquors could not be prevented, as it would be in conflict with the act of congress regulating commerce and levying imposts; but it ceased to be an impost when broken up for retail, and at once became subject to the laws of the state, and amenable to taxation and regulation by the state, the same as other property; and further, that the power to regulate commerce between the states did not exclude regulations by the state save when they conflicted with the laws of congress.

III.65.8

—It would thus appear that the state laws, known as prohibitory liquor laws, are not held void, as in conflict with national authority, in the regulation of commerce between the states. The same laws have been sustained when urged to be in conflict with state constitutions, on the ground that they are police regulations established by the legislature for the prevention of intemperance, vagrancy and crime. The power to declare the sale of liquor to be a nuisance has been determined by the court, and it has been held competent to provide legal process for its destruction, and for the seizure and condemnation of the building in which it is sold, as a nuisance, provided the fundamental principle of protection which surrounds persons and dwellings relating to seizure and search shall not be invaded, and that the right of trial shall be granted before condemnation. Says Cooley (Con. Lim., p. 583): "Perhaps there is no instance in which the power of the legislature to make such regulations as may destroy the value of property without compensation to the owner, appears in a more striking light than in the cases of these statutes. The trade in alcoholic drinks being lawful, and the capital employed in it being fully protected by law, the legislature then steps in, and for general reasons of public utility annihilates the traffic, destroys altogether the employment, and reduces to a nominal value the property on hand. The sale of liquor becomes a criminal offense, and the merchant of yesterday becomes the criminal of to-day, and the very building in which he lives, and conducts the business which at that moment was lawful, becomes a nuisance, if the statute shall so declare, and liable to be proceeded against for a forfeiture. Statutes which can do this must be justified upon the highest reasons of public benefit; but whether satisfactory or not, they rest exclusively in the legislative wisdom."

III.65.9

—Other matters affecting commerce, in which the police power of the state may be invoked in behalf of the public interests, are quarantine regulations, and health laws in all forms. These latter may be so far extended as to embrace the destruction of private property when infected by disease, or dangerous in other particulars. Inspection laws may be adopted and duties levied to make them operative. Regulations may also be enforced regarding the time and manner of transacting business to promote trade, establish order and prevent confusion. These regulations embrace the right to control the movements and station of ships and vessels in the harbors of cities, and streams lying within the limits of cities and seaport towns, and the wharves thereof, and to remove such vessels as had discharged or received their cargoes to enable others to perform the same essential labor; and penalties may be inflicted upon all such as refuse to obey the directions of the harbor masters who are vested with the authority to determine such matters. (Vanderbilt vs. Adams, 7 Cow., 351.) Congress, however, may establish police regulations, as well as the states, relating to all subjects where control is given by the constitution, but as this power can be more satisfactorily exercised by local authority, and the jurisdiction to arrest collision is confined to the United States courts, congress has generally relegated this power to the states.

III.65.10

—Questions have arisen with regard to the power of a state to enact laws requiring importers of foreign goods to take out a license, and in case of refusal, to inflict penalties and forfeitures. Such acts have been held void as not partaking of the principles of mere police regulations such as might require the payment of a license fee to cover expenses of enforcing harbor regulations, but rather of the power of taxation to raise revenue for the state, and therefore in conflict with the provision of the constitution which prohibits a state from laying imposts or levying duties, and likewise with the provision that congress alone shall possess the power to regulate commerce. But the police power of a state has been sustained (City of New York vs. Miln, 11 Peters, 102), inflicting a penalty upon the master of every foreign vessel who should not report, upon arrival in port, to the mayor or recorder of the city, an account of the names, places of birth, business, etc., of his passengers; this police regulation having been adopted to prevent the city of New York from being burdened by persons shipped as paupers or criminals by foreign governments. Notwithstanding the fact that congress can adopt all laws regulating pilots and pilotage, a state regulation relating to the same has been held unobjectionable, when such power had not been exercised by that body.

III.65.11

—With regard to the power of a state to enact such laws as shall compel all persons to refrain from labor during the first day of the week, it has been held by the courts that such laws were not encroachments upon the religious liberty of persons who do not regard that day as sacred, nor in conflict with the constitution because acting, as a restraint upon the trade and commerce of a community, or rendering void a contract for Sunday services.

III.65.12

—An important part of the jurisdiction of a state is the control of its highways. These are constructed by the state, and the state has full power to adopt all police regulations for the public good controlling the actions of those who use them, and to alter and change them as the proper authorities consider best for the general interest. This power enables a state to determine the mode of travel; regulate the speed; cause parties meeting to turn each to their right; prevent a public nuisance; prohibit animals from running at large under penalty of fine and confiscation; require the owners of incorporated property to construct, and keep in repair and free from obstruction, the sidewalks in front of it and, in case of failure, to perform such work at the expense of the owner, the courts having held such acts not to be in the nature of taxation, on account of the paramount interest which the owners have in the performance of the work, and their peculiar ability to perform it promptly in accordance with the necessity of the community; and for similar reasons require the owners of adjacent lands, where the country was liable to be overflowed by a stream of considerable size, to construct levees upon their river front at their own expense, and in default thereof, to cause such work to be done under the direction of the public authorities, and to assess the expense upon the lands of such owners.

III.65.13

—Navigable waters are declared public highways, and as such are under the control of the states. At common law, only those streams were held to be navigable where the tide ebbed and flowed, but all streams of sufficient depth of water to render them capable of navigation for useful purposes were known as public, and became subject to the same general rules governing the public highways on land. In this country the rule has been adopted to consider all streams public whose capacity is sufficient for channels of commerce in floating the products of the soil, forests and mines of the country through which they flow, although at stated periods of the year they may become too shallow for navigable purposes, such as the floating of logs and rafts of timber. Therefore, as public highways, all such streams are under the control of the state authority, and subject to all proper police regulations, as much so as a land highway. But if a stream, in its natural condition, is not thus useful, and has been created so by the subsequent labor of the owners of the soil, it is not public property nor liable to police regulations as such; and it remains in the nature of a private way or easement, unless the owner chooses to dedicate it to public use. It has been held that a legislature may determine what streams within the boundaries of a state are navigable, and subject to police regulations as highways (Glover vs. Powell, 2 Stockt., 211); still, this proposition is combated with the rule of law that the legislature can not, by a simple declaration, appropriate private property to public use without just compensation.

III.65.14

—While general control and regulation of navigable streams rest with the state authorities, there are certain restrictions upon this right emanating from the constitutional power of congress over commerce with foreign nations and between the states. Wherever a river forms a highway upon which foreign commerce or that between the states is conducted, it passes under the control of congress, on account of this constitutional restriction. But, as already observed, should congress fail for any reason to exert this power, or if, having exercised it, the state law should not conflict with the national, the fact that a stream is navigable would not bar a state from adopting just regulations for its use and control.

III.65.15

—Under the decisions of the federal courts, a state can not grant an exclusive monopoly for the navigation of any part of the waters within its jurisdiction upon which commerce is conducted under coasting licenses by authority of congress, as such grant would conflict with the power which congress has exercised. But if the upper waters of a stream lying within its limits are wholly separated from tide water by impassable falls, and are not a continuous stream open to foreign or state commerce, a state law granting exclusive control to a party to navigate them can not be voided on the ground of conflict with the authority of congress to regulate commerce.

III.65.16

—It is competent for a state to exact toll from all commerce passing through its navigable waters for the benefit of any improvement by the state where it has expended money, although the stream may be one over which the regulations of commerce extend, because the state has the same right to improve a water as a land highway.

III.65.17

—A state may direct the construction of bridges over navigable streams for highway purposes, although they may in some degree interfere with free navigation. If congress has no control over the stream, the right can not be questioned at all on the ground of public inconvenience. If the stream is under the control of congress, it becomes necessary to determine whether or not the construction of such a bridge will conflict with its regulations. Although the bridge to some extent may prove a hindrance to commerce, it is not absolutely unlawful for a state to construct it, if the general traffic of the country be aided rather than depressed by its construction; as the navigation of a stream may be far less important than the construction of a bridge, and its obstruction be a much lighter burden upon the people than a break in the line of railroad travel by compelling the use of a ferry, with its dilatory operations, especially when draws are so constructed as to admit the passage of vessels through the bridges with but slight inconvenience and loss of time. The decision of the question, however, does not rest with the state authority as to the relative character of obstructions, but with the federal courts, which have jurisdiction to determine the same, and cause the removal of the obstruction if it be found to unnecessarily impede or destroy the traffic upon the stream.

III.65.18

—As ferries over navigable streams are but the creation of highways, the states may lawfully establish them, grant licenses for keeping the same, and prohibit persons from engaging in such occupations without such license, and it does not impair the right of a state to enact such laws, though a part of the waters be without the jurisdiction of the state, or a highway for interstate or foreign commerce.

III.65.19

—Dams may also be constructed by state authority across navigable streams; and such as involve no question of federal authority are exempt from being declared a nuisance, through legislative consent to construct them; and so long as the builder confines himself to the provisions of the legislative charter, he likewise is exempt from any liability to private action for injury to river navigation.

III.65.20

—A state possesses the same power to regulate the speed, mode of travel and general conduct of ships and other vessels upon its water highways that it does upon its land highways, subject, however, to the limitation that its ordinances must not conflict with the laws of congress for the regulation of foreign and domestic commerce.

III.65.21

—There are some extreme points to which the police power of a state may extend, where the control of property by individual owners may be interfered with and even destroyed by public authority, when the owners themselves have performed all the duties of good citizenship, and in no way violated a law or defied public authority. Such cases are to be cited, when the public exigency is so great, and the public interests so overwhelming, as to justify its seizure and destruction, on the highest grounds of public interest. Such would be the seizure and destruction of private property to prevent the spread of flames, the advance of a pestilence or an invading army, or any other great calamity where the highest interests of the public are involved. In all such cases the rights of individuals, which in times of peace and health and order are inalienable, in periods of public calamity sink out of sight, and in all things relating to the public danger private rights yield instantly to the inexorable law of public necessity.

III.65.22

—The police power of a state enables a community to protect itself by the establishment of precautionary measures against the destruction of life or health or property, by the enactment of ordinances defining the limits, within the denser portions of towns, cities and villages, within which buildings composed of inflammable materials can not be erected. Wharf lines may be established, although they may prevent the owners of water fronts from erecting buildings on that which constitutes private property. For the protection of a harbor, a legislative enactment may prevent the removal of stones, sand or gravel from the beach, under penalties, applicable to the owners of the soil equally with all other persons.

III.65.23

—Under the police power of a state, a special use of property may at times be prohibited, where, by the change of circumstances surrounding it, and without any offense or even dereliction of duty by the owner, that which was once lawful and unobjectionable becomes a public nuisance and inimical to the life and health of the community. Bridges and mill dams that occasion overflows or accrete such substances as produce miasmatic growths of vegetation, may be removed or destroyed for this cause. Cemeteries and graveyards, and bone boiling and refining establishments, whose locus in quo was once remote from the heart of a city, but which from swift urban growth have become incorporated within the limits of the same, and hence detrimental to the health of the population, are liable to be closed for such purposes. The keeping of gunpowder in large quantities, or dynamite in towns, villages or cities, may by law be prohibited; the sale of poisonous drugs, unless properly labeled or by order of a practicing physician; the keeping for sale of unwholesome provisions and all other deleterious substances; unmuzzled dogs running at large, and all such acts, are liable to be forbidden under the authority granted the state to provide for the abatement of nuisances, whether occasioned by the offense of the individual or not.

III.65.24

—Another matter of great public importance, over which the police power of a state has full and complete jurisdiction, is the preservation of the public morals. Under this power the legislature may, by special enactment, prohibit the keeping, sale or exhibition of indecent or immoral books or pictures, and cause the seizure and destruction of the same, wherever found; close up places of amusement where gaming is resorted to, or regulate them by license, or forbid the keeping of gaming implements for gaming purposes. It may likewise provide such regulations as will prevent the keeping and use of stallions or other breeding animals in public places. It may likewise provide for the compulsory observance of the Christian Sabbath on the first day of the week.

III.65.25

—Under this power, markets may be regulated, special places assigned for the venders of special articles, licenses granted, weights and measures established, and merchants and dealers compelled, under penalty, to comply with all such regulations.

III.65.26

—Such are some of the police powers of the society. They are of such intricacy as to pervade all conditions of business and society. Those enumerated are sufficient to illustrate the authority of the state to establish varied and far-reaching regulations as to the time, manner and circumstances under which its citizens shall maintain and enjoy their rights without conflicting with these great constitutional principles which have been finally settled for the defense of private rights and property.

JNO. W. CLAMPITT.

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