*CHAPTER XVI.

THE POLICE POWER OF THE STATES.

[* 572]

ON questions of conflict between national and State authority, and on questions whether the State exceeds its just powers in dealing with the property and restraining the actions of individuals, it often becomes necessary to consider the extent and proper bounds of a power in the States, which, like that of taxation, pervades every department of business and reaches to every interest and every subject of profit or enjoyment. We refer to what is known as 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 offences 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 is reasonably consistent with a like enjoyment of rights by others.1

In the present chapter we shall take occasion to speak of the police power principally as it affects the use and enjoyment of property; the object being to show the universality of its presence,

1 Blackstone defines the public police and economy as "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. Jeremy Bentham, in his General View of Public Offences, has this definition: "Police is in general a system of precaution, either for the prevention of crimes or of calamities. Its business may be distributed into eight distinct branches: 1. Police for the prevention of offences; 2. Police for the prevention of calamities; 3. Police for the prevention of endemic diseases; 4. Police of charity; 5. Police of interior communications; 6. Police of public amusements; 7. Police for recent intelligence; 8. Police for registration." Edinburgh Ed. of Works, Part IX. p. 157.

and to indicate, so far as may be practicable, the limits which settled principles of constitutional law assign to its interference. "We think it is a settled principle," says Chief Justice [*573] Shaw, "growing out of the nature of well-ordered civil 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 general 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 dif ferent from the right of eminent domain, the right of a government to take and appropriate private property whenever the public exigency requires it, which can be done only on condition of providing a reasonable compensation therefor. The power we allude 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 its boundaries, or prescribe limits to its exercise." 1

"This police power of the State," says another eminent judge, "extends to the protection of the lives, limbs, health, comfort, and quiet of all persons, and the protection of all property within the State. According to the maxim, Sic utere tuo ut alienum non

1 Commonwealth v. Alger, 7 Cush. 84. See also Commonwealth v. Tewksbury, 11 Met. 57; Hart v. Mayor, &c., of Albany, 9 Wend. 571; New Albany and Salem R.R. Co. v. Tilton, 12 Ind. 3; Indianapolis and Cincinnati R.R. Co. v. Kercheval, 16 Ind. 84; Ohio and Mississippi R.R. Co. v. McClelland, 25 Ill. 140; People v. Draper, 25 Barb. 374; Baltimore v. State, 15 Md. 390; Police Commissioners v. Louisville, 3 Bush, 597; Wynehamer v. People, 13 N. Y. 402.

ladas, which being of universal application, it must, of course, be within the range of legislative action to define the mode and manner in which every one may so use his own as not to injure others." And again: [By this] "general police power of the State, persons and property are subjected to all kinds of restraints and burdens, in order to secure the general comfort,

*

health, and prosperity of the State; of the perfect right [* 574] in the legislature to do which, no question ever was, or,

upon acknowledged general principles, ever can be made, so far as natural persons are concerned." 1

In the American constitutional system, the power to establish the ordinary regulations of police has been left with the individual States, and cannot be assumed by the national government.2 Neither can the national government through any of its departments or officers assume any supervision of the police regulations of the States, so long as they do not invade the sphere of national sovereignty, and obstruct or impede the exercise of any authority which the constitution has confided to the nation. But on the

1 Redfield, Ch. J., in Thorpe v. Rutland and Burlington R.R. Co., 27 Vt. 149. See the maxim, Sic utere, &c., Enjoy your own property in such manner as not to injure that of another,”—in Broom, Legal Maxims, 5th Am. ed. p. 327. See also Turbeville v. Stampe, 1 Ld. Raym. 264, and 1 Salk. 13; Jeffries v. Williams, 5 Exch. 792; Humphries v. Brogden, 12 Q. B. 739; Pixley v. Clark, 35 N. Y. 520.

2 So decided in United States v. DeWitt, 9 Wall. 41, in which a section of the Internal Revenue Act of 1867 — which undertook to make it a misdemeanor to mix for sale naphtha and illuminating oils, or to sell oil of petroleum inflammable at a less temperature than 110° Fahrenheit — was held to be a mere police regulation, and as such void within the States.

See this subject considered at large in the License Cases, 5 How. 504, and the Passenger Cases, 7 How. 283. Congress has no power to authorize a business within a State which is prohibited by the State. License Tax Cases, 5 Wall. 471, per Chase, Ch. J. A claim has recently been advanced at New Orleans, that the Civil Rights Bill, in connection with the new amendments to the national Constitution, has so far enlarged the jurisdiction of the Federal Courts, as to authorize them, at the suit of citizens of a State, to review one of its statutes purporting to establish a police regulation, and to adjudge it void if in their opinion it wrongfully abridged the right of citizens to follow a lawful employment; but this claim has not been sustained either in the Supreme Court of Louisiana, or in the Federal Supreme Court. See Live Stock, &c., Association v. Crescent City, &c., Co., recently decided in the latter court; Story on Const. Appendix to Vol. 2.

In State v. Hairston, 63 N. C. 451, it was decided that the recent amend

other hand it is easy to see that the power in the States might be so employed as to interfere with the jurisdiction of the general government; and some of the most serious questions regarding the police of the States concern the cases in which authority has been conferred upon Congress. In those cases it has sometimes been claimed that the ordinary police jurisdiction is by necessary impli cation excluded, and that, if it were not so, the State would be found operating within the sphere of the national powers, and establishing regulations which would either abridge the rights which the national Constitution undertakes to render absolute, or burden the privileges which are conferred by law of Congress, and which therefore cannot properly be subject to the interference or control of any other authority. But any accurate statement of the theory upon which the police power rests will render it apparent that a proper exercise of it by the State cannot come in conflict with the provisions of the Constitution of the United States. If the power extends only to a just regulation of rights with a view to the due protection and enjoyment of all, and does not deprive any one of that which is justly and properly his own, it is obvious that its possession by the State, and its exercise for the regulation of the property and actions of its citizens, cannot well constitute an invasion of national jurisdiction, or afford a basis for an appeal to the protection of the national authorities.

The occasions to consider this subject in its bearings upon the clause of the Constitution of the United States which forbids the States passing any laws violating the obligation of contracts have been frequent and varied; and it has been held without dissent that this clause does not so far remove from State control the rights and properties which depend for their existence or enforcement upon 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 declared, are subject to this power; and not only may regulations which affect them be established by the State, but all such regulations must be subject to change from time to time, as the general well-being of the community may

ments to the national Constitution have not had the effect to forbidding marriages between white persons and negroes.

repeal a State law And see ante, 391,

note.

require, or as the circumstances may change, or as experience may demonstrate the necessity.1

In the case of Thorpe v. Rutland and Burlington R.R. Co., 27 Vt. 140, a question arose under a provision in the Vermont General Railroad Law of 1849, which required each railroad corporation to erect and maintain fences on the line of their road, and also cattle guards at all farm and road crossings, suitable and sufficient to prevent cattle and other animals from getting upon the railroad, and which made the corporation and its agents liable for all damages which should be done by their agents or engines to cattle, horses, or other animals thereon, if occasioned by the want of such fences and cattle guards. It was not disputed that this provision would be valid as to such corporations as might be afterwards created within the State; but in respect to those previously in existence, and whose charters contained no such provision, it was claimed that this legislation was inoperative, since otherwise its effect would be to modify, and to that extent to violate, the obligation of the charter-contract. "The case," say the court, "resolves itself into the narrow question of the right of the legislature, by general statute, to require all railways, whether now in operation or hereafter to be chartered or built, to fence their roads upon both sides, and provide sufficient cattle guards at all farm and road crossings, under penalty of paying all damages caused by their neglect to comply with such requirements . . . We think the power of the legislature to control existing railways in this respect may be found in the general control over the police of the country, which resides in the lawmaking power in all free States, and which is, by the fifth article of the bill of rights of this State, expressly declared to reside perpetually and inalienably in the legislature; which is, perhaps, no more than the enunciation of a general principle applicable to all free States, and which cannot therefore be violated so as to deprive the legislature of the power, even by express grant to any mere public or private corporation. And when the regulation of the police of a city or town, by general ordinances, is given to such towns and cities, and the regulation of their own internal police is given to railroads to be carried into effect by their by-laws and other regulations, it is of course always, in all such cases, subject to the superior control of the legislature. That is a responsibility which legislatures cannot devest themselves of if they would.

"So far as railroads are concerned, this police power which resides primarily and ultimately in the legislature is twofold: 1. The police of the roads, which, in the absence of legislative control, the corporations themselves exercise over their operatives, and to some extent over all who do business with them, or come upon their grounds, through their general statutes, and by their officers. We apprehend there can be no manner of doubt that the legislature may, if they deem the public good requires it, of which they are to judge, and in all doubtful cases their judgment is final, require the several railroads in the State to establish and maintain the same kind of police which is now observed upon some of the more important roads in the country for their own security, or even such a police as is found upon the English railways, and those upon the continent of Europe. No one ever questioned the right of the Connecticut legislature to require trains upon all of their railroads to come to a stand before passing draws in bridges; or