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Topic: The American Revolution and Constitution

CHAPTER I.: SCOPE OF THE GOVERNMENT CONTROL AND REGULATION OF PERSONAL RIGHTS. - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 1 [1900]

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A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 1.

Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.

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Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


CHAPTER I.

SCOPE OF THE GOVERNMENT CONTROL AND REGULATION OF PERSONAL RIGHTS.

SECTION1.Police power defined and explained.
2.The legal limitations upon police power.
3.Construction of constitutional limitations.
4.The principal constitutional limitations.
5.Table of private rights.

§ 1.

Police power—Defined and explained.—

The private rights of the individual, apart from a few statutory rights, which when compared with the whole body of private rights are insignificant in number, do not rest upon the mandate of municipal law as a source.1 They belong to man in a state of nature; they are natural rights, rights recognized and existing in the law of reason. But the individual, in a state of nature, finds in the enjoyment of his own rights that he transgresses the rights of others. Nature wars upon nature, when subjected to no spiritual or moral restraint. The object of government is to impose that degree of restraint upon human actions, which is necessary to the uniform and reasonable conservation and enjoyment of private rights. Government and municipal law protect and develop, rather than create, private rights. The conservation of private rights is attained by the imposition of a wholesome restraint upon their exercise, such a restraint as will prevent the infliction of injury upon others in the enjoyment of them; it involves a provision of means for enforcing the legal maxim, which enunciates the fundamental rule of both the human and the natural law, sic utere tuo, ut alienum non lædas. The power of the government to impose this restraint is called Police Power. 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 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 Blackstone defines the police power 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.”2 Judge Cooley says:3 “The police of a State, in a comprehensive sense, embraces its whole system of internal regulation, by which the State seeks not only to preserve the public order and to prevent offenses against the State, but also to establish for the intercourse of citizens with citizens 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 it is reasonably consistent with a like enjoyment of rights by others.”1 The continental jurists include, under the term PolicePower, not only those restraints upon private rights which are imposed for the general welfare of all, but also all the governmental institutions, which are established with public funds for the better promotion of the public good, and the alleviation of private want and suffering. Thus they would include the power of the government to expend the public moneys in the construction and repair of roads, the establishment of hospitals and asylums and colleges, in short, the power to supplement the results of individual activity with what individual activity cannot accomplish. “The governmental provision for the public security and welfare in its daily necessities, that provision which establishes the needful and necessary, and therefore appears as a bidding and forbidding power of the State, is the scope and character of the police.”1 But in the present connection, as may be gathered from the American definitions heretofore given, the term must be confined to the imposition of restraints and burdens upon persons and property. The power of the government to embark in enterprises of public charity and benefit can only be limited by the restrictions upon the power of taxation, and to that extent alone can these subjects in American law be said to fall within the police power of the State.

It is to be observed, therefore, that the police power of the government, as understood in the constitutional law of the United States, is simply the power of the government to establish provisions for the enforcement of the common as well as civil-law maxim, sic utere tuo ut alienum non lædas. “This police power of the State 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 lædas, it 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.”1 Any law which goes beyond that principle, which undertakes to abolish rights, the exercise of which does not involve an infringement of the rights of others, or to limit the exercise of rights beyond what is necessary to provide for the public welfare and the general security, cannot be included in the police power of the government. It is a governmental usurpation, and violates the principles of abstract justice, as they have been developed under our republican institutions.

In Lawton v. Steele2 the Court say: “The extent and limits of what is known as the police power have been a fruitful subject of discussion in the appellate courts of nearly every State in the Union. It is universally conceded to include everything essential to the public safety, health and morals, and to justify the destruction or abatement, by summary proceedings, of whatever may be regarded as a public nuisance. Under this power it has been held that the State may order the destruction of a house falling to decay or otherwise endangering the lives of passers-by; the demolition of such as are in the path of a conflagration; the slaughter of diseased cattle; the destruction of decayed or unwholesome food; the prohibition of wooden buildings in cities; the regulation of railways and other means of public conveyance, and of interments in burial grounds; the restriction of objectionable trades to certain localities; the compulsory vaccination of children; the confinement of the insane or those afflicted with contagious diseases; the restraint of vagrants, beggars, and habitual drunkards; the suppression of obscene publications and houses of ill-fame; and the prohibition of gambling houses and places where intoxicating liquors are sold. Beyond this, however, the State may interfere wherever the public interests demand it, and in this particular a large discretion is necessarily vested in the legislature to determine not only what the interests of the public require, but what measures are necessary for the protection of such interests. To justify the State in thus interposing its authority in behalf of the public, it must appear, first, that the interests of the public generally, as distinguished from those of a particular class, require such interference; and, second, that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals. The legislature may not, under the guise of protecting the public interests, arbitrarily interfere with private business or impose unusual and unnecessary restrictions upon lawful occupations. In other words, its determination as to what is a proper exercise of its police powers, is not final or conclusive, but is subject to the supervision of the courts.”

In Ex parte Lentzsch,1 the Court say: “Upon the question thus presented of the proper limits of the police power much might be written, and much, indeed, will have to be written, ere just bounds are set to its exercise. But in this case neither time permits nor necessity demands the [its] consideration. Still it may be suggested in passing that our government was not designed to be paternal in form. We are a self-governing people, and our just pride is that our laws are made by us as well as for us. Every individual citizen is to be allowed so much liberty as may exist without impairment of the equal rights of his fellows. Our institutions are founded upon the conviction that we are not only capable of self-government as a community, but, what is the logical necessity, that we are capable to a great extent, of individual self-government. If this conviction shall prove ill-founded, we have built our house upon sand. The spirit of a system such as ours is therefore at total variance with that which, more or less veiled, still shows in the paternalism of other nations. It may be injurious to health to eat bread before it is twenty-four hours old, yet it would strike us with surprise to see the legislature making a crime of the sale of fresh bread. We look with disfavor upon such legislation as we do upon the enactment of sumptuary laws. We do not even punish a man for his vices, unless they be practiced openly, so as to lead to the spread of corruption, or to breaches of the peace, or to public scandal. In brief, we give to the individual the utmost possible amount of personal liberty, and, with that guaranteed to him, he is treated as a person of responsible judgment, not as a child in his non-age, and is left free to work out his destiny as impulse, education, training, heredity, and environment direct him. So, while the police power is one whose proper use makes most potently for good, in its undefined scope, and inordinate exercise lurks no small danger to the republic; for the difficulty which is experienced in defining its just limits and bounds affords a temptation to the legislature to encroach upon the rights of citizens with experimental laws, none the less dangerous because well meant.”1

§ 2.

The legal limitations upon police power.—

This is the subject of the present work, viz.: The legal limitations upon the police power of American governments, national and State. Where can these limitations be found, and in what do they consist? The legislature is clearly the department of the government which can and does exercise the police power, and consequently in the limitations upon the legislative power, are to be found the limitations of the police power. Whether there be other limitations or not, the most important and the most clearly defined are to be found in the national and State constitutions. Whenever an act of the legislature contravenes a constitutional provision, it is void, and it is the duty of the courts so to declare it, and refuse to enforce it. But is it in the power of the judiciary to declare an act of the legislature void, because it violates some abstract rule of justice, when there is no constitutional prohibition? Several eminent judges have more or less strongly insisted upon the doctrine that the authority of the legislature is not absolute in those cases in which the constitution fails to impose a restriction; that in no case can a law be valid, which violates the fundamental principles of free government, and infringes upon the original rights of men, and some of these judges claim for the judiciary, the power to annul such an enactment, and to forbid its enforcement.1 Judge Chase expresses himself as follows: “I cannot subscribe to the omnipotence of a State legislature, or that it is absolute and without control, although its authority should not be expressly restrained by the constitution or fundamental law of the State. The people of the United States erected their constitutions or forms of government, to establish justice, to promote the general welfare, to secure the blessings of liberty, and to protect their persons and property from violence. The purposes for which we enter into society, will determine the nature and terms of the social compact; and as they are the foundation of the legislative power, they will decide what are the proper objects of it. The nature and ends of legislative power will limit the exercise of it. This fundamental principle flows from the very nature of our free republican governments, that no man should be compelled to do what the laws do not require, nor to refrain from acts which the laws permit. There are acts which the Federal or State legislature cannot do, without exceeding their authority. There are certain vital principles in our free republican governments, which will determine and overrule an apparent and flagrant abuse of legislative power; as to authorize manifest injustice by positive law, or to take away that security for personal liberty or private property for the protection whereof the government was established. An act of the legislature (for I cannot call it a law), contrary to the great first principle of the social compact, cannot be considered a rightful exercise of legislative authority. The obligation of a law in governments, established on express compact and on republican principles, must be determined by the nature of the power on which it is founded. * * * The legislature may enjoin, permit, forbid and punish; they may declare new crimes, and establish rules of conduct for all its citizens in future cases; they may command what is right, and prohibit what is wrong, but they cannot change innocence into guilt, or punish innocence as a crime; or violate the right of an antecedent lawful private contract, or the right of private property. To maintain that our Federal or State legislature possesses such powers, if they had not been expressly restrained, would in my opinion be a political heresy, altogether inadmissible in our free republican governments.” But notwithstanding the opinions of these eminently respectable judges, the current of authority, as well as substantial constitutional reasoning, is decidedly opposed to the doctrine. It may now be considered as an established principle of American law that the courts, in the performance of their duty to confine the legislative department within the constitutional limits of its power, cannot nullify and avoid a law, simply because it conflicts with the judicial notions of natural right or morality, or abstract justice.”1

While it is true that the courts have no authority to override the legislative judgment on the question of expediency or abstract justice in the enactment of a law, and if a case, arising under the statute, should come up before them for adjudication, they are obliged by their official oaths to enforce the statute notwithstanding it offends the commonest principles of justice, it is nevertheless true that a law which does not conform to the fundamental principles of free government and natural justice and morality, will prove ineffectual and will become a dead letter. No law can be enforced, particularly in a country governed directly by the popular will, which does not receive the moral and active support of a large majority of the people; and a law, which violates reason and offends against the prevalent conceptions of right and justice, will be deprived of the power necessary to secure its enforcement. The passage of such statutes, however beneficent may be the immediate object of them, will not only fail of attaining the particular end in view, but it tends on the one hand to create in those who are likely to violate them a contempt for the whole body of restrictive laws, and on the other hand, to inspire in those, from whom the necessary moral support is to be expected, a fear and distrust, sometimes hate, of legal restraint which is very destructive of their practical value. And such is particularly the case with police regulations. When confined within their proper limits, viz.: to compel every one to so use his own and so conduct himself as not to injure his neighbor or infringe upon his rights, police regulations should, and usually would, receive in a reasonably healthy community the enthusiastic support of the entire population. There have been, however, so many unjustifiable limitations imposed upon private rights and personal liberty, sumptuary laws, and laws for the correction of personal vice, laws which have in view the moral and religious elevation of the individual against his will, and sometimes in opposition to the dictates of his conscience (all of which objects, however beneficent they may be, do not come within the sphere of the governmental activity), that the modern world looks with distrust upon any exercise of police power; and however justifiable, reasonable and necessary to the general welfare may be a particular police regulation, it often meets with a determined opposition, and oftener with a death-dealing apathy on the part of those who are usually law-abiding citizens and active supporters of the law. Goethe makes Mephistopheles give the cause of this opposition in the following expressive language:—

  • “Ich weisz mich trefflich mit der Polizei
  • Doch mit dem Blutbann schlecht mich abzufinden,”

which, roughly translated, means, “I can get along very well with the police, but badly with the hereditary monopoly.” (Blutbann.)1

But these are considerations, which can alone be addressed to the legislative department of the government. If an unwise law has been enacted, which does not infringe upon any constitutional limitation, the only remedy is an appeal to the people directly, or through their representatives, to repeal the law. The courts have no authority to interpose.

§ 3.

Construction of constitutional limitations.—

But although these fundamental principles of natural right and justice cannot, in themselves, furnish any legal restrictions upon the governmental exercise of police power, in the absence of express or implied constitutional limitations, yet they play an important part in determining the exact scope and extent of the constitutional limitations. Wherever by reasonable construction the constitutional limitation can be made to avoid an unrighteous exercise of police power, that construction will be upheld, notwithstanding the strict letter of the constitution does not prohibit the exercise of such a power. The unwritten law of this country is in the main against the exercise of police power, and the restrictions and burdens, imposed upon persons and private property by police regulations, are jealously watched and scrutinized. “The main guaranty of private rights against unjust legislation is found in that memorable clause in the bill of rights, that no man shall be deprived of life, liberty or property, without due process of law. This guaranty is not construed in any narrow or technical sense. The right to life may be invaded without its destruction. One may be deprived of his liberty in a constitutional sense without putting his person in confinement. Property may be taken without manual interference therewith, or its physical destruction. The right to life includes the right of the individual to his body in its completeness and without its dismemberment, the right to liberty, the right to exercise his faculties and to follow a lawful avocation for the support of life, the right of property, the right to acquire property and enjoy it in any way consistent with the equal rights of others and the just exactions and demands of the State.”1

In a late case2 the Supreme Court expresses itself as follows: “The Fourteenth Amendment is not confined to the protection of citizens.” It says: “Nor shall any State deprive any person of life, liberty or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. These provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality; and the equal protection of the laws is a pledge of the protection of equal laws.”

* * * * * * * * * * *

“When we consider the nature and theory of our institutions of governments, the principles upon which they are supposed to rest and review the history of their development, we are constrained to conclude that they do not mean to leave room for the play and action of purely personal and arbitrary power. Sovereignty itself is, of course, not subject to law, for it is the author and source of law; but in our system, while sovereign powers are delegated to the agencies of government, sovereignty itself remains with the people, by whom and for whom all government exists and acts. And the law is the definition and limitation of power. It is, indeed, quite true, that there must always be lodged somewhere, and in some person or body, the authority of final decision; and in many cases of mere administration the responsibility is purely political, no appeal lying except to the ultimate tribunal of the public judgment, exercised either in the pressure of public opinion or by means of the suffrage. But the fundamental rights to life, liberty and the pursuit of happiness, considered as individual possessions, are secured by those maxims of constitutional law which are the monuments showing the victorious progress of the race in securing to men the blessings of civilization under the reign of just and equal laws, so that, in the famous language of the Massachusetts Bill of Rights, the government of the commonwealth ‘may be a government of laws and not of men.’ For the very idea that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at the mere will of another, seems to be intolerable in any country, where freedom prevails, as being the essence of slavery itself.”

In searching for constitutional restrictions upon police power, not only may resort be had to those plain, exact and explicit provisions of the constitution, but those general clauses, which have acquired the name of “glittering generalities,” may also be appealed to as containing the germ of constitutional limitation, at least in those cases in which there is a clearly unjustifiable violation of private right. Thus, almost all of the State constitutions have, incorporated in their bills of rights, the clause of the American Declaration of Independence that all men “are endowed by their Creator with certain inalienable rights; that among these are life, liberty and the pursuit of happiness.” If, for example, a law should be enacted, which prohibited the prosecution of some employment which did not involve the infliction of injury upon others, or which restricts the liberty of the citizen unnecessarily, and in such a manner that it did not violate any specific provision of the constitution, it may be held invalid, because in the one case it interfered with the inalienable right of property, and in the other case it infringed upon the natural right to life and liberty. “There is living power enough in those abstractions of the State constitutions, which have heretofore been regarded as mere ‘glittering generalities,’ to enable the courts to enforce them against the enactments of the Legislature, and thus declare that all men are not only created free and equal, but remain so, and may enjoy life and pursue happiness in their own way, provided they do not interfere with the freedom of other men in the pursuit of the same objects.”1 This is a novel doctrine, and one which perhaps is as liable to give rise to dangerous encroachments by the judiciary upon the sphere and powers of the legislature, as the doctrine that a law is invalid which violates abstract principles of justice. If it be recognized as an established rule of constitutional law, it must certainly be confined in its application to clear cases of natural injustice. Wherever there is any doubt as to the legitimate character of legislation, it should be solved in favor of the power of the legislature to make the enactment. In all cases the courts should proceed with caution in the enforcement of this most elastic constitutional provision.

While we find a tendency in one direction to stretch the constitutional restrictions over a great many cases of legislation, which would not fall within the strict letter of the constitution, in order that due force and effect may be given to the fundamental principles of free government; on the other hand, where the letter of the constitution would prohibit police regulations, which by all the principles of constitutional government have been recognized as beneficent and permissible restrictions upon the individual liberty of action, such regulations will be upheld by the courts, on the ground that the framers of the constitution could not possibly have intended to deprive the government of so salutary a power, and hence the spirit of the constitution permits such legislation, although a strict construction of the letter may prohibit. But in such a case the regulation must fall within the enforcement of the legal maxim, sic utere tuo, ut alienum non lædas. “Powers which can only be justified on this specific ground (that they are police regulations) and which would otherwise be clearly prohibited by the constitution, can be such only as are so clearly necessary to the safety, comfort and well-being of society, or so imperatively required by the public necessity, as to lead to the rational and satisfactory conclusion that the framers of the constitution could not, as men of ordinary prudence and foresight, have intended to prohibit their exercise in the particular case, notwithstanding the language of the prohibition would otherwise include it.”1 And in all such cases it is the duty of the courts to determine whether the regulation is a reasonable exercise of a power, which is generally prohibited by the constitution. “It is the province of the law-making power to determine when the exigency exists for calling into exercise the police power of the State, but what are the subjects of its exercise is clearly a judicial question.”2

Chief Justice Marshall said in Marburg v. Madison:3 “The courts are not bound by mere forms, nor are they to be misled by mere pretenses. They are at liberty—indeed they are under a solemn duty—to look at the substance of things whenever they enter upon the inquiry whether the legislature had transcended the limits of its authority. If, therefore, a statute purporting to have been enacted to protect the public health, the public morals or the public safety, has no real or substantial relations to those objects, or is a palpable invasion of rights secured by the fundamental law, it is the duty of the court to so adjudge, and thereby give effect to the constitution.”

§ 4.

The principal constitutional limitations.—

The principal constitutional limitations, which are designed to protect private rights, against the arbitrary exercise of governmental power, and which therefore operate to limit and restrain the exercise of police power, are the following:—

1. No bill of attainder or ex post facto law shall be passed by the United States,1 or by the States.2

2. No State shall pass any law impairing the obligation of a contract.3

3. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.4

4. The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated; and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.5

5. No soldier shall, in time of peace, be quartered in any house without the consent of the owner; nor in time of war, but in a manner to be prescribed by law.6

6. The right of the people to keep and bear arms shall not be infringed.7

7. Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people, peaceably to assemble, and to petition the government for a redress of grievances.8

8. No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.1

9. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.2

10. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.3

11. The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.4

12. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.5

13. The right of the citizens of the United States to vote shall not be denied or abridged by the United States, or by any State, on account of race, color, or previous condition of servitude.1

Here are given only the provisions of the Federal constitution, but they either control the action of the States, as well as of the United States, or similar provisions have been incorporated into the bills of rights of the different State constitutions, so that the foregoing may be considered to be the chief limitations in the United States upon legislative interference with natural rights. Where the States are not expressly named in connection with any clause of the United States constitution, the provision is construed by the best authorities to apply solely to the United States.2 But all of these limitations have been repeated in the State bill of rights, with some little but unimportant change of phraseology, together with other more minute limitations.

§ 5.

Table of private rights.—

Police power, being the imposition of restrictions and burdens upon the natural and other private rights of individuals, it becomes necessary to tabulate and classify these rights, and in presenting for discussion the field and scope for the exercise of police power, the subject-matter will be subdivided according to the rights upon which the restrictions and burdens are imposed. The following is

THE TABLE OF PRIVATE RIGHTS.
(a.) Personal rights.
1. Personal security—Life.
—Limb.
—Health.
—Reputation.
2. Personal liberty.
3. Private property—Real.
—Personal.
(b.) Relative Rights
arising between1. Husband and wife.
2. Parent and child.
3. Guardian and ward.
4. Master and servant.
(c.) Statutory Rights
embracing all those rights which rest upon legislative grant.

[1]I do not here undertake to do more than to state those conceptions of natural rights which have by adjudications been embodied in American Constitutional law. The scientific criticisms by Austin and others of the theory of Natural Rights, will be found properly recognized and discussed in the author’s “Unwritten Constitution of the United States,” and in his “Liberty and Equality in the United States.”

[1]Redfield, C. J., in Thorpe v. Rutland, etc., R. R., 27 Vt. 140.

[2]4 Bl. Com. 162.

[3]Cooley, Const. Lim. 572.

[1]The following other definitions present the same ideas in different language, but they are added, ex abundante cautela, with the hope that they may assist in reaching a clear conception of the scope of the police power. “The police power of a State is co-extensive with self-protection, and is not inaptly termed ‘the law of overruling necessity.’ It is that inherent and plenary power in the State, which enables it to prohibit all things hurtful to the comfort and welfare of society.” Lakeview v. Rose Hill Cemetery, 70 Ill. 192. “With the legislature the maxim of law ‘salus populi suprema lex,’ should not be disregarded. It is the great principle on which the statutes for the security of the people are based. It is the foundation of criminal law, in all governments of civilized countries, and of other laws conducive to the safety and consequent happiness of the people. This power has always been exercised, and its existence cannot be denied. How far the provisions of the legislature can extend, is always submitted to its discretion, provided its acts do not go beyond the great principle of securing the public safety, and its duty to provide for the public safety, within well defined limits and with discretion, is imperative. * * * All laws for the protection of lives, limbs, health and quiet of the person, and for the security of all property within the State, fall within this general power of government.” State v. Noyes, 47 Me. 189. “There is, in short, no end to these illustrations, when we look critically into the police of large cities. One in any degree familiar with this subject would never question a right depending upon invincible necessity, in order to the maintenance of any show of administrative authority among the class of persons with which the city police have to do. To such men any doubt of the right to subject persons and property to such regulations as public security and health may require, regardless of mere private convenience, looks like mere badinage. They can scarcely regard the objector as altogether serious. And, generally, these doubts in regard to the extent of governmental authority come from those who have had small experience.” Hale v. Lawrence, 1 Zab. 714; 3 Zab. 590. While it is true that a small experience in such matters is calculated to increase one’s doubts in respect to the exercise of the power, a large and practical experience is likely to make one recklessly disregardful of private rights and constitutional limitations.

[1]Bluntschli, Mod. Stat., vol. II., p. 276. See v. Mohl’s comprehensive discussion of the scope of Police Power in the introductory chapter to his Polizeiwissenschaft.

[1]Thorpe v. Rutland, etc., R. R., 27 Vt. 150.

[2]152 U. S. 133.

[1]112 Cal. 468.

[1]On the general tendency of development of police power in Illinois see Eden v. People, 161 Ill. 296.

[1]Judge Chase in Calder v. Bull, 3 Dall. 386; Judge Story in Wilkinson v. Leland, 2 Pet. 657; Judge Bronson in Taylor v. Porter, 4 Hill, 145; Judge Strong in People v. Toynbec, 20 Barb. 218; Judge Hosmer in Goshen v. Storlington, 4 Conn. 259; Chancellor Walworth in Varick v. Smith, 5 Paige, 137; Judge Spaulding in Griffith v. Commissioners, 20 Ohio, 609; Ch. J. Parker, in Ross’ Case, 2 Pick. 169.

[1]“The question whether the act under consideration is a valid exercise of legislative power is to be determined solely by reference to constitutional restraints and prohibitions. The legislative power has no other limitation. If an act should stand when brought to the test of the constitution, the question of its validity is at an end, and neither the executive nor judicial department of the government can refuse to recognize or enforce it. The theory, that laws may be declared void when deemed to be opposed to natural justice and equity, although they do not violate any constitutional provision, has some support in the dicta of learned judges, but has not been approved, so far as we know, by any authoritative adjudication, and is repudiated by numerous authorities. Indeed, under the broad and liberal interpretation now given to constitutional guaranties, there can be no violation of fundamental rights, which will not fall within the express or implied prohibition and restraints of the constitution and it is unnecessary to seek for principles outside of the constitution, under which legislation may be condemned.” Bertholf v. O’Reilly, 74 N. Y. 509. “Defendant insists that we should pronounce the law now in question to be void, on the ground that it is opposed to natural right and the fundamental principles of civil liberty. We are by no means prepared to accede to the doctrine involved in this claim, that under a written constitution like ours, in which the three great departments of government, the executive, legislative and judicial, are confided to distinct bodies of magistracy, the powers of each of which are expressly confined to its own proper department, and in which the powers of each are unlimited, in its appropriate sphere, except so far as they are abridged by the constitution itself, it is competent for the judicial department to deprive the legislature of powers which they are not restricted from exercising by that instrument. It would seem to be sufficient to prevent us from thus interposing, that the power exercised by the legislature is properly legislative in its character, which is unquestionably the case with respect to the law we have been considering, and that the consideration contains no restrictions upon its exercise in regard to the subject of it.” State v. Wheeler, 25 Conn. 290. See, also, Butler v. Palmer, 1 Hill, 324; Cochran v. Van Surley, 20 Wend. 380; Grant v. Courten, 24 Barb. 232; Benson v. Mayor, 24 Barb. 248, 252; Wynehamer v. People, 13 N. Y. 390; Town of Guilford v. Supervisors, 13 N. Y. 143; Sharpless v. Mayor, 21 Pa. St. 147; Bennett v. Boggs, 1 Bald. 74; Doe v. Douglass, 8 Blackf. 10; State v. Clottu, 33 Ind. 409; Stein v. Mayor, 24 Ala. 614; Dorman v. State, 34 Ala. 232; Boston v. Cummings, 16 Ga. 102; Hamilton v. St. Louis Co., 15 Mo. 23; Powell v. Com., 114 Pa. St. 265; Reeves v. Corning, 51 Fed. 774; Sinking Fund Cases, 99 U. S. 700, 718. “Every possible presumption is in favor of the validity of a statute, and this continues until the contrary is shown beyond a rational doubt. One branch of the government cannot encroach on the domain of another without danger. The safety of our institutions depends in no small degree on a strict observance of this salutary rule.” See, also, Fletcher v. Peck, 6 Cranch, 87, 128; Dartmouth College v. Woodward, 4 Wheat. 518, 625; Livingston v. Darlington, 101 U. S. 407.

[1]Reference is here made to those numerous monopolies, created in various industries for the benefit of certain powerful families and made hereditary, which proved beneficial to their possessors, while they were correspondingly oppressive to the poorer classes. This was one of the crying evils of the old French civilization which led up to the Revolution.

[1]Bertholf v. O’Reilly, 74 N. Y. 509

[2]Yick Wo v. Hopkins, 118 U. S. 356.

[1]Judge Redfield’s annotation to People v. Turner, 55 Ill. 280; 10 Am. Law Reg. (n. s.) 372. At a very early day, before the adoption of the present constitution of the United States, it was judicially decided in Massachusetts that slavery was abolished in that State by a provision of the State constitution, which declared that “all men are born free and equal, and have certain natural, essential and inalienable rights,” etc. This clause was held to be inconsistent with the status of slavery, and therefore impliedly emancipated every slave in Massachusetts. See Draper, Civil War in America, vol. I., p. 317; Bancroft, Hist. of U. S. vol. x., p. 365; Cooley Principles of Const., p. 213.

[1]Christiancy, J., in People v. Jackson and Mich. Plank Road Co., 9 Mich. 285.

[2]Lake View v. Rose Hill Cemetery, 70 Ill. 192.

[3]1 Cranch, 137.

[1]U. S. Const., art. I., § 9.

[2]U. S. Const., art. I., § 10.

[3]U. S. Const., art. I., § 10.

[4]U. S. Const. Amend., art. VIII.

[5]U. S. Const. Amend., art. IV.

[6]U. S. Const. Amend., art. III.

[7]U. S. Const. Amend., art. II.

[8]U. S. Const. Amend., art. I.

[1]U. S. Const. Amend., art. V.

[2]U. S. Const. Amend., art. V.

[3]U. S. Const. Amend., art. VIII.

[4]U. S. Const., art. I., § 9.

[5]U. S. Const. Amend., art. XIV.

[1]U. S. Const. Amend., art. XV.

[2]Barron v. Baltimore, 7 Pet. 243; Livingston’s Lessee v. Moore, Ib. 469; Fox v. Ohio, 5 How. 410; Smith v. Maryland, 18 How. 71; Parvear v. Com., 5 Wall. 475; Twitchell v. Com., 7 Wall. 321; Com. v. Hitchings, 5 Gray, 482; Bigelow v. Bigelow, 120 Mass. 300, etc.