cited, and the statement of Chief Justice Taney in the License cases' has been often quoted, that this power of government, inherent in every sovereignty, the power to govern men and things, is not an uncontrollable or despotic authority, subject to no limitation exercisable with or without reason in the discretion or at the whim of the legislative body. But within its legitimate domain the power is original, absolute and indefeasible. The same idea was expressed by Lord Kenyon in Rorke v. Dayrell, that the prerogatives of the crown are not given for the personal advantage of the king, but they are allowed to exist because they are beneficial to the subject, and Chitty says: "The splendor, rights and power of the crown were attached to it for the benefit of the people and not for the private gratification of the sovereign." The object of government and law is the welfare of the people. It is not, however, the welfare of the individual, but that of society, which is the first object of the law. In the progress of civilization, and as the larger limits for the necessary exercise of police powers are recognized, as new occasions and new demands arise, the legal relations of the citizens are more and more perfectly defined and limited by public statutes,' and less difficulty will be found in any exigency for its determination under the appropriate law and authority. Wherever there is the legislative power, laws under this head will be enacted and made effective under the larger or more local jurisdictions in which the powers are for this instance vested.

15 How. 583; Mugler v. Kansas, 123 U. S. 623

24 T. R. 410.

3 On Prerogatives, 4.

4 Puchta Pandekten, § 21.

5 The numerous decisions under the Interstate Commerce Law illustrated this rule. Of recent legislation we have examples in the Car-coupling Law of Congress, 1893, and in many of the States prohibitory laws against cigarette smoking in public places or by youths. An appropriation for the State exhibit at the World's fair was held within the public powers of the legislature in Norman v. Kentucky Bd. Man. W. C. Expos., 20 S. W. R. 901; People v. Cannon, 54 N. Y. St. R. 431; U. S. v. World Col. Ex., 56 Fed. R. 630; id. 1654; Marezoll Institution, 4. "Das positive recht und seine enstehung durch publicirte gesetze oder durch rechts gewohnheiten." "The consuetudines mentioned so constantly in the charters of the boroughs were the ordinary or customary laws which had existed in them immemorially and were amended from time to time as by-laws; nor is it clear that the customary law had not a position in the Constitution strong enough to resist, and even as in the case of weights and measures, successfully to defy statutory enactments! Select charters (Stubbs' 7th ed.), pp. 110-111, s. v. Customs of New Castle; see Co. Litt. 110. 6, § 165.

Early examples of sanitary laws are mentioned, as e. g. An act of 1388 in England,' imposing a penalty of £20 on any person who cast animal filth or refuse into rivers and ditches. An act of 1489 proDwarris cites other

3

hibited the slaughtering of cattle within cities. instances of the use of these powers in former times for the public benefit, which is held to be the test of the authority. Thus in an old case in 12 Co. 13,' it was held that the king could not take private property for a wall about his own house, for this was not a public benefit, but much of our sanitary legislation, not only in England and the United States but in the world, dates from this century. "From time immemorial in England," says the court in Munn v. Illinois, and in this country from its colonization it has been customary "to regulate ferries, common carriers, hackmen, brokers, millers, wharfingers, innkeepers, etc." In Aldnutt v. Inglis, rates for storage of wines in the London docks in 1810, were limited to a reasonable compensation, and Congress as early as 1820 conferred powers upon the city of Washington' to regulate rates of wharfage, of chimney-sweeps, of cattlemen, hackmen, carmen and auctioneers.

4

Later, health laws in the different States, and statutes governing car companies, telephone companies, electric-light companies, elevators and other business in which there is a public interest to be protected, have greatly extended the sphere, limits and force of police powers. Taking their rise from sources of common danger, they have reached the protection of the lives, limbs, health, comfort, morals and quiet of all persons and the protection of all property in the State. The introduction of game during certain nonths,' the sale of illuminating oil below a certain standard, and the unregulated use of explosives and dangerous substances, may be prohibited in a State, and quarantine laws enforced in new directions. Such has been the development of police powers,

1 Sanitary Legislation, D. B. Eaton, 1872.

2 Potter's Dwarris, 445, note 2.

394 U. S. 113-136.

4 Id. 127

5 Id. 125.

Slaughter-house cases, 16 Wall. 36.

"Phelps v. Racey, 60 N. Y. 10; State v. Randolph, 1 Mo. App. 13. 8 U. S. v. DeWitt, 9 Wall. 41.

'Compulsory vaccination has been instituted in many countries. In Austria a new and more vigorous measure is now proposed. In England, a committee of Parliament has recently reported on the Eastbourne Improvement Bill, wherein, by the 149th clause, power has been given to the local authorities to forbid processions of the Sal

not dreamed of when their aid was first invoked. The progress of civilization, and the requirements of more perfect government for the public welfare, have sustained and increased them in number certainly, if not in the imperial force they ofttimes assume. The limits are not yet reached while we still advance, but the underlying principles by which the reason or unreason, or the constitutional limits of the authority claimed or used, may be investigated or judged, are now fortunately less obscure, and in the majority of cases they have become fixed, and have been illustrated in many decisions of our highest

courts.

vation Army. Such an ordinance directed against noisy processions of certain classes was declared unconstitutional by Supreme Court of Wisconsin, April, 1893. In re Garrabod, 54 N. W. R. 1104.

CHAPTER II.

DIVISION AND CLASSIFICATION.

A convenient division of laws is as to their subjects. These naturally fall under various heads, and the test of legislative power, to be applied under our written constitutions, varies from that of the British Parliament. The first questions arise concerning limitations, certain powers having been granted to the national government and taken from the States. Thus it is with the regulation of commerce, both foreign and interstate. This includes immigration, and with it are necessarily bound, more or less exclusively, other subjects, to which, however, within State limits, in so far as purely local interests are affected, the reserved powers of the States apply. Generally speaking, what is not covered expressly, or by necessary implication to secure the grant, in the Constitution, is reserved to the States. In one case the letter and spirit of the Constitution, strictly construed, prevails; in the other, all the reserved powers of local administration remain, to be exercised for the welfare of the people of each State separately under its own Constitution. Police powers in the national administration are limited, but in the States they extend and progress in every direction within no well-defined bounds, subject principally to the wisdom of the legislature, and the will of the people, as they find expression under constitutional forms, and in the laws. The regulation of commerce and, as a part of it, the regulation of immigration, is not through the police power, yet police powers may reach to the immigrants. How far the States can by appropriate legislation protect themselves against the introduction of actual paupers, vagrants, criminals, and diseased persons has not been definitely settled.

2

Such a right can only arise from a vital necessity' for its exercise,

1 Pierce v. New Hampshire, 5 How. 514; Leisy v. Hardin, 135 U. S. 100; Bowman

v. R. R. Co., 125 U. S. 465; Minn., St. P. & S. S. M. R. Co. v. Milner, 57 Fed. R. 276. ? Henderson v. Mayor, 92 U. S. at p. 274; Chy Lung v. Freeman et al., 92 U. S. 275; People v. Comp. Gen. Transatlantique, 107 U. S. 59.

and cannot be carried beyond the scope of that necessity. Quarantine established by a State is a rightful exercise of the police power for the protection of health, not forbidden by the Constitution, and although some of the rules' established may amount to regulations of commerce with foreign nations, such regulations are incidental and are valid, where the subject is not one "of which there can be of necessity only one system or plan of regulation for the whole country." Congress has in certain legislation adopted the State laws and forbidden interference; or provided that designated subjects of commerce shall be subject to the laws of a State or Territory enacted in the exercise of its police powers. When the subject upon which Congress can act under its commercial power, is local in its nature or sphere of operation, such as harbor pilotage or improvement of harbors,' establishment of beacons and buoys to guide vessels in and out of port, the construction of bridges over navigable rivers, the erection of wharves, piers and docks which can be properly regulated only by special provisions adapted to their localities, the State can act until Congress interferes and supersedes its authority. Powers relating to municipal regulations are not surrendered by the States. They are, as subjects of legislation, of primary importance. If the right to control these subjects be complete, unqualified and exclusive in the State legislatures, no regulations of secondary importance can supersede them.

Articles in such a condition as tend to spread disease are not merchantable" or legitimate subjects of trade and commerce, and the self

1 Morgan S. S. Co. v. Louisiana, 118 U. S. 455; approved, 121 U. S. 448. See as to limitations of the rule of Pierce v. New Hampshire and the distinction as to subjects, Leisy v. Hardin, 135 U. S. 100, and a later discussion of these cases in Commonwealth v. Huntley, Mass. Sup. Court, May 7, 1892, 156 Mass. 236; Sherlock v. Alling, 93 U. S. 99; Waterbury v. Newton, 50 N. J. L. 534 ; Vannini v. Paine, 1 Harr. (Del.) 65; see also Act of Congress of August 8, 1890, and Wilkerson v. Rahrer, 140 U. S. 545.

2 U. S. R. S., § 4792, act of April 29, 1878, chap. 66, An act to prevent the introduction of infectious and contagious diseases into the United States.

Ouachita Packet Co. v. Aiken, 121 U. S. 448, and cases cited.

'Bowman v. Chicago & N. W. R. R., 125 U. S. 465; Cooley v. Port Wardens of Philadelphia, 12 How. 299.

5 See Pierce v. New Hampshire, 5 How. 514, and dissenting opinion in Leisy v. Hardin, 135 U. S. 144.

Opinion of the court, Leisy v. Hardin, 135 U. S. 100. Opinion of Catron, J., cases, 5 How. 599; see also 125 U. S. 489; 135 U. S. 108; 140 U. S. 545-557.

License