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Vol. V.

OCTOBER, 1891.

No. I




When the people of the United States arise when the State passes a law, or does in unity adopted the Constitution, they any act which tends to impair or destroy established for the nation a dual form of the rights guaranteed by the Constitugovernmental agency, consisting of the tion to the individual against State interFederal or national government, and the ference. With this class of prohibitions State or local government, each supreme as a basis of inquiry the Federal courts within its sphere,' the Federal government scrutinize acts of State legislatures to dehaving the powers delegated to it in the termine whether such acts done under claim Constitution, and the States having all the of police power are properly within its pale." powers belonging to sovereignty not given Individual liberty, according to a written up to the Federal government. As part constitution, is a modern growth. In of the Federal agency of government they ancient times the State had authority to established the Supreme Court with powers do whatever it had power to do ; now it commensurate with the legislative func- has only the powers delegated to it by the tions granted to the government. This people. Then police powers (noliteia) tribunal is the final interpreter of the Con- included all internal regulations, as opstitution, and of all laws and treaties made posed to foreign relations. This broad by the United States. Its decisions are power must of necessity be limited in the supreme law of the land. It has

a government of powers restricted by power to review State constitutions and constitution, although the United States laws as well as acts of Congress.'

Courts in some decisions have given it Conflict upon questions of police power a wide range nearly equal to noliteia between the national and State authorities without the jural power."

3 Pom. Constitutional Law, 72 ; Art. VI., Const., 1 Tennessee vs. Davis, 100 U. S. 257, 263 ; McCul

Sec. 2. loch vs. Maryland, 4 Wheat. 316; 3 Wall. 713. 4 Myer's Federal Decisions, Vol. I., § 1032. ? Pom. Constitutional Law, 79.

97 U. S. 213.


Police power, broadly stated, is that Police regulations are for the general authority which rests in a government to benefit and do not proceed to the impairact within constitutional limits, and along ing of any right, but every right acknowlconstitutional lines for the security of the edged to the individual by the State may general comfort, health, and morals of be abused by him to the detriment of the the State. The foundation of the police State. The State must therefore confer power is the right of self-preservation upon the government the power to watch given to each individual”); it rests on for and prevent such abuse.' In dealing the ground of public necessity,' and ope- with the police power, therefore, we must rates upon all alike. It is yielded by each view it from the standpoint of the commonmember when he enters society for the wealth protecting itself against the acts of benefit of all.' Chief Justice Marshall the individual, and from the standpoint of extended police laws beyond the narrow the individual who has been given certain range of health and morals of the com- rights by the State and insists that the conmunity. He said : “ They form a portion stitutional guaranties shall not be impaired. of that immense mass of legislation which In this latter phase of the question the controls everything within the territory of Federal government supervises the action a State not surrendered to the general of the States. In the exercise of acts pergovernment-all which can be most ad- taining to police powers there is a point vantageously administered by the States beyond which the State may not go without themselves. Inspection laws, quarantine interfering with the constitutional rights of laws, health laws of every description, as the individual. Within the proper limit well as laws for regulating the internal the police power of the State is supreme commerce of a State, and those which and not subject to question by the Federal respect turnpike roads, ferries, etc., are authorities. It is only when the State component parts."

under claim of police power has gone beJudge Cooley says : “ The police of a

yond that power that the Federal courts State, in a comprehensive sense, embraces inquire into the act. Just where the dividits whole system of internal regulation by ing line between a valid exercise of police which the State seeks not only to preserve power and an infringement of individual the public order and to prevent offences rights must be drawn, is difficult to deteragainst the State, but also to establish for mine. It is much easier to perceive and the intercourse of citizens with citizens

realize the existence and sources of this those rules of good manners and good power than to mark its bounderies, or preneighborhood which are calculated to pre- scribe limits to its existence." vent a conflict of rights and to insure to In order to understand more clearly each the uninterrupted enjoyment of his where the line of demarcation is, perhaps own so far as it is reasonably consistent it would be well to consider some specific with a like enjoyment of rights by others.” instances in which the Supreme Court has

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3 Sawyer 283 ; 95 U. S. 472. 9 Mich. 285. 3 Ohio & Miss. R. R. Co. vs. McClelland, 25


7 Cowen, 349, 351. Burgess Polit. Sc. & Const. Law, 216. 8 Gibbons vs. Ogden, 9 Wheat. 203 ; 9 Wall. 41 ; 16 Wall. 36 ; 17 Wall. 560.

97 Cush. 53, 85.
10 Commonwealth vs. Alger, 7 Cush. 53, 85.

Ill. 140.

* Gibbons vs. Ogden, 9 Wheat. 203. 6 Constitutional Lim., 572.

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