learned justice recognized that this broad statement requires some qualification is evidenced by his further observation :

With regard to the police power, as elsewhere in the law, lines are pricked out by the gradual approach and contact of decisions on the opposing sides. It will serve as a datum on this side, that in our opinion the statute before us is well within the state's constitutional power, while the use of the public credit on a large scale to help individuals in business has been held to be beyond the line.

In an earlier case1 the Supreme Court declared that while "the right to exercise the police power is a continuing one . . . yet the exercise of this power is subject to judicial review, and property rights cannot be wrongfully destroyed by arbitrary enactment."

In every case, the courts at all events must inquire 2 "whether the legislature has adopted the statute in the exercise of a reasonable discretion, or whether its action be a mere excuse for unjust discrimination, or the oppression or spoliation of a particular class." 3

So far from the Supreme Court being open to fair criticism for giving unduly narrow construction to constitutional provisions in favor of public welfare, a more candid criticism might suggest that that great tribunal in common with other courts had yielded somewhat unduly to public criticism in giving effect to legislation, which, however desirable from the standpoint of social reform, yet involves a measurable encroachment upon some of those individual rights to secure which the Fourteenth Amendment was adopted.

Modern criticism of courts apparently proceeds upon the theory that constitutional provisions shall be enforced only until a certain number of people who are able to give expression to their views in newspapers, magazines, and on the lecture platform shall contend that some other principles should control legislative action. The theory of the framers of constitutions in the past has been that their provisions were to be more than temporary in duration, and that they should be respected and enforced, until a sufficiently large number of people should disagree with them to bring about a modification of the constitution in the method provided in such instrument; and that the question whether or not legislative or executive action exceeded constitutional limitations should not be left to the final determination of those acting, but, when arising in the course of litigation, should become a judicial question, to be determined by the courts of justice. This has been the American theory of constitutional government; and it is interesting to note that the same theory was deliberately adopted in one of the newest and, in some respects, the most radical of English federations, Australia.

1 Dobbins vs. Los Angeles, 195 U.S. 223-239.

2 Holden vs. Hardy, 169 U.S. 366, 398.

See also Dobbins vs. Los Angeles, supra, and cases cited on pp. 236–238.

In the convention which framed the constitution of the Commonwealth of Australia it was proposed that when any law passed by the Commonwealth Parliament was declared unconstitutional by a decision of the High Court, the executive might, upon the adoption of a resolution by absolution majorities in both houses, or in one house alone, refer the law to the electors for their approval, and, if so approved, that the same should become a law notwithstanding the constitution - in effect Colonel Roosevelt's proposition for the recall of judicial decisions.

But Mr. Moore, in his work on the "Constitution of the Commonwealth," says:

The proposal received no support, and the maintenance of the individual right to impugn laws is the more significant because in other respects the constitution differs markedly from the Constitution of the United States in not establishing rights of individuals against governmental interference.1

The constitution, as adopted, expressly empowered the Parliament, "subject to this constitution," "to make laws for the peace, order, and good government of the Commonwealth, with respect to" certain enumerated subjects, and authorized Parliament to confer original jurisdiction upon the High Court in any matter "arising under this constitution, or involving its interpretation." Not only was the finality of judicial interpretation of constitutional power recognized as incident to the ordinary administration of justice, but it was also provided that under certain conditions the executive or the legislature might require the opinions of the justices of the High Court upon constitutional questions, and it was further declared,

No appeal shall be permitted to the Queen in Council from the decision. of the High Court upon any question howsoever arising as to the limits inter se of the constitutional powers of the Commonwealth and those of any state or states, or as to the limits inter se of the constitutional powers of any two or more states, unless the High Court shall certify that the question is one which ought to be determined by Her Majesty in Council.'

It would be well if the exercise of the police power could be limited by the test often enunciated, but not always followed, of reasonableness, as distinguished from arbitrary or capricious action."

But the pressure is very great on the part of social reformers to compel legislation which transcends constitutional restrictions, and seeks justification under the elastic boundaries of the police power,

1 See Moore, Constitution of the Commonwealth, 2 ed., Melbourne, 1910, p. 360.

2 See Edgerton, Federations and Unions within the British Empire, Oxford, 1911, pp. 58, 66, 212, 214.

8 State ex rel. Davis vs. Clausen, 117 Pac. 1101.

See also "Judicial Construction of Fourteenth Amendment," by Francis J. Swayze, 26 Harvard Law Review, 1.

and any interference with their programs by decisions of courts based upon constitutional limitations is received by them with impatience, and provokes them to intemperate attacks on judges and the exercise of the judicial function just described. The leader of the radical movement against the judicial enforcement of constitutional limitations has declared his belief that courts should continue to have the power to declare void unconstitutional legislation, but, he adds, "only provided the power is exercised with the greatest wisdom and selfrestraint." If the continued existence of governmental functions were to be dependent upon officials always exercising powers vested in them "with the greatest wisdom and self-restraint," it may be questioned how long government could continue. Certainly there have been times when the executive office under such a test would have had to go into commission. There are infirmities in all human institutions, but government is an exceedingly practical business. The framers of our institutions believed that the welfare of society would suffer if the legislature had unlimited power. When the states became members of a federal union the short experience under the original Articles of Confederation demonstrated the need of a stronger central government, and of some power to prevent either state or national government from encroaching upon the domain assigned to the other. This power was provided in an impartial judicial establishment. Our forefathers had suffered from various kinds of tyranny. They proposed to protect the individual citizen in his life, his liberty, his reputation, and his property, against any form of oppression, and to that end they formulated and embodied in the fundamental law declarations of rights which were to be forever recognized and preserved. The judiciary was made the guardian of those rights. In the discharge of that sacred trust it has sometimes erred; but on the whole it has not allowed the letter to stifle, but has been quickened by the spirit of liberty under law. Mr. Justice Holmes recently said he did not believe the Union would be imperiled if the Supreme Court lost its power to declare an act of Congress void; but he added, "I do think the Union would be imperiled if we could not make that declaration as to the laws of the several states. For one in my place sees how often a local policy prevails with those who are not trained to national views and how often action is taken that embodies what the commerce clause was meant to end." 2

Whether the power be taken away directly, or be deadened and atrophied in its action by adverse criticism and demagogic clamor, when the judiciary no longer shall feel at liberty to construe the provisions of the fundamental law "in the light of reason," constitutional

1 The Outlook, supra, Jan. 6, 1912.

Speech by Mr. Justice Holmes before the Harvard Law Association, New York, Senate Doc. No. 1106, 62d Cong., 3d session.

government, in the sense in which it has been understood for a century and a half, will be at an end, and the doctrine of the police power will have been swallowed up in the capacious maw of unrestrained democracy.

STATE POLICE POWERS AND FEDERAL PROPERTY

GUARANTEES

BY CHARLES C. MARSHALL OF THE NEW YORK BAR

(From the Columbia Law Review, March, 1904)

The Federal Constitution as originally adopted contained only two clauses that could be said to be guarantees of property rights' as against the exercise by the States of their Police Powers. They were contained in the Commerce Clause, providing that Congress shall have power to regulate commerce with foreign Nations and among the several States, and in the Fugitive Slave Clause. The Commerce Clause, in that it signified freedom of commerce from State control was a guarantee of property rights involved therein, and the Fugitive Slave Clause, in that it secured the return of the fugitive slave was a guarantee to the Slave States of slave property. Both operated to restrain the States in the exercise of their Police Powers touching the property in question.

We do not overlook the provisions forbidding the States to pass laws impairing the obligation of contracts, that full faith and credit should be given by each State to the public acts, records and judicial proceedings in every other State, that the citizens of each State should be entitled to all the provisions and immunities of citizens in the several States, nor such provisions as those delegating to the National Government the power to tax, to establish uniform bankruptcy laws, and to coin money and regulate the value thereof, and to fix the standard of weights and measures. All these may at times affect property rights and possibly override some manifestations of State Police Powers, but their effect is indirect and incidental and they are in no sense limitations on State sovereignty in respect to property rights and are not to be considered here.

The jealousy by the States of the Federal Power which thus showed itself in the Federal Constitution as originally adopted was none the less active in 1789 when the first ten amendments were added, for, as is well known, these were directed against the National Government in their restrictive effect and were not intended to apply to the

1 It is, of course, Common Law property rights which are referred to. Special property rights, such as patents, copyrights, etc., are excepted from consideration here.

States. They in effect provided, touching property, that no person should be deprived by the Federal Government of life, liberty or property without due process of law, and that private property should not be taken by the same for public use without compensation. The States in these respects were still left free of Federal limitations.

Each State in the exercise of its Police Power may determine the status of property, may impair and in effect destroy it, whether such property exist originally within the State or come therein from other States in which it enjoys the full property status. No interstate rights or obligations can be pleaded by the other States and there is no Federal power or guarantee which they can invoke. Violent as was the revolution in interstate property rights marked by the Fourteenth Amendment, it was confined, with the qualification stated above, to one species of property which it swept out of existence. All other property in the States of the Union remained with attributes and incidents the same as from the beginning wholly subject to the State Police Powers to whose dread exercise property always has yielded as readily as wax in the blaze of the furnace.

It is desirable at this point to refer to cases which reveal, as no definition can, the present limits of the Police Power under our law. We may select the Slaughter House cases; Mugler vs. Kansas; 2 Munn vs. Illinois.3

1

In the Slaughter House cases the Court sustained the exercise of the Police Power by the State of Louisiana in a statute which in effect destroyed the value of a large amount of property in lands and buildings and fell with crushing force upon the citizens of the State engaged in slaughtering. The statute provided that that business should be entirely given over to a single corporation, or, if pursued by others, should be conducted on the premises of such privileged corporation upon payment thereto for the privilege. We quote from the language of Mr. Justice Field in his dissenting opinion:

The act of Louisiana presents the naked case, unaccompanied by any public considerations, where a right to pursue a lawful and necessary calling previously enjoyed by every citizen, and in connection with which a thousand persons were daily employed, is taken away and vested exclusively for twenty-five years, for an extensive district and a large population, in a single corporation, or its exercise is for that period restricted to the establishments of the corporation, and then allowed only upon onerous conditions.

In the case of Mugler vs. Kansas, the State statute prohibited the manufacture and sale of intoxicating liquors for use as a beverage,

1 (1872) 16 Wall. 36.

2 (1887) 123 U.S. 623.

(1876) 94 U.S. 113.