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§ 1.: Police power—Defined and explained.— - 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 
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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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
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.”
Redfield, C. J., in Thorpe v. Rutland, etc., R. R., 27 Vt. 140.
4 Bl. Com. 162.
Cooley, Const. Lim. 572.
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.
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.
Thorpe v. Rutland, etc., R. R., 27 Vt. 150.
152 U. S. 133.
112 Cal. 468.
On the general tendency of development of police power in Illinois see Eden v. People, 161 Ill. 296.