the other hand, these very powers again are limited, by those expressly granted under the Constitution to Congress, as for instance, special health, harbor, or inspection laws may be in conflict with general laws regulating commerce.

Few writers have traversed this field of inquiry, and except in isolated cases, or in learned opinions of the courts, illustrating some principle invoked to solve intricacies in the controversy before them, the practitioner or the citizen has little aid from references or authorities. It is an interesting task to bring them together in any form for practical use, and none of the accepted treatises on special or kindred topics, belonging to the same great division of government for the preservation of peace and civic welfare, fail to throw additional light upon it, and to be of service.1

The grouping of subjects, and cases applicable, may appear accidental, or more or less artificial. Their history was not dissimilar, drawn as they were into observation by some necessity, in the day-byday experience of men in communal life. Approached from a different point of view, a more rigid and theoretical treatment would be expected. It is, however, of less importance to the worker, to consider under what head of government, the law of bailments, extended and diversified by the common law, or domestic relations, or the title of master and servant, may appropriately come, when all of them may be accepted as incorporated in the body of our jurisprudence, than to see how new subjects are bound together under police powers and laws. Public use and public interest make organized society a party in elevator business and contracts. Railroad agreements, even with trainmen, are under government supervision. Marriage, procured by brokerage, passes the censorship of the courts. Water-works trials involve large questions of public policy, and sovereignty itself is determined in county-seat or lake-front cases, or those involving prior grants within the harbor lines of a city.

Duval v. Wellman, 124 N. Y. 156; Late Cor. of the Church of J. C., of Latter-Day Saints v. U. S., 136 U. S. 68; Ill. C. R. R. v. People of Illinois and the City of Chicago, 146 U. S. 387. Compared with Great Britain we have written constitutions while there Parliament is absolute and without control." 1 Bl. Com. 160; 4 Co. Inst. 36.

1 No student can ignore the importance and authority of Professor Tiedeman's work on Limitations of Police Power, and Wood on Nuisances in its several editions. Since this paragraph was written, there has been published by Mr. Bender, "The Law of Public Health and Safety," by Messrs. Parker and Worthington, a useful book.

It is

Even the right of taxation for city improvements is in the Supreme Court of the United States, and the appeal from an assessment brings forth important rules depending on the construction of a sewer. by police power, the decision informs us, "for the health and cleanliness of the city," and this "police power is to be exercised solely at the legislative will,” but as to the portion of its burden to be borne by "a taxpayer he has the right to be heard. No notice or assent from him was necessary, and notice to him by publication is sufficient."

In contrast we see the cy pres power of administering charities of a public nature assumed by the government, although in many of the States it has been held not to exist; a territorial power of church government set aside, and the right of the national legislature affirmed as parens patria to divert property from an unlawful use in aid of a false belief and appropriate it to the common schools.

Thus we shall observe that points of departure seemingly distant become connected by convenient channels of research for our study of the manifestations of police powers.

The most complete illustration of these police powers is to be found under the system of health laws, founded and administered as an independent part of municipal government.

Closely allied, imperious, and ofttimes appearing arbitrary, but irresistible if sustained by reason and the courts, these powers are first to be considered in their origin and development in any regular or scientific discussion of the subject.

1 Paulsen v. City of Portland, 149 U. S. 30; Church v. U. S., 136 U. S. 68; Holland v. Alcock, 108 N. Y. 312, 336.

CHAPTER I.

ORIGIN AND DEVELOPMENT OF POLICE POWERS.

Police powers have their origin in the law of necessity. Blackstone in his Commentaries construes the law of necessity as that of selfdefense,' and does not apply it strictly to the idea of government; but later in his work he enumerates "offenses against the public health and the public police or economy, which we distribute more accurately under the head of police powers." Chancellor Kent more carefully distinguishes "Cases of urgent necessity" in which no action lay at common law by the individual who sustained injury, as in the instance mentioned, where houses are razed to the ground, to prevent the spread of a conflagration." "There exists a power," says Dwarris, "by which private property may be taken, used, or destroyed for the benefit of others, and this is called the police power, sometimes called the law of overruling necessity. It is clear that before the adoption of the Constitution' it was well settled at common law that in cases of actual necessity, as that of preventing the spread of fire, the ravages of pestilence or any other great calamity the private property of the individual may be lawfully taken, used or destroyed for the relief, protection, or safety of the many." It is not singular that an analogy to the law of self-defense should have been thus early suggested, but the distinction is obvious, when we consider the plea of self-defense is founded upon a right, belonging to the individual by the law of nature, to repel violence against his person, and a concession to him, under certain limitations, by the public authority. In our subject, however, the act is that of the government for the defense of society, or the people whose peace is invaded by any violence.

1 Bl. Com. IV, 30.

Bl. Com. IV, chap. 13, 161.

32 Kent Com. 338.

4 Potter's Dwarris, chap. XIV.

' Potter's Dwarris, 444-5: "The maxim salus populi est suprema lex" applies, 11 Coke, 13.

Again, a certain resemblance has been found to the law of eminent domain, and this the more because in the case of buildings torn down in the path of a fire, compensation has sometimes been provided, by statute, for the owners of the property destroyed. A law of New York State applicable to the city of New York gave power to the mayor or recorder of the city, with the consent and concurrence of two aldermen, to direct a building' "hazardous and likely to take fire or to convey fire to other buildings to be pulled down and destroyed," providing thereafter for the assessment of damages by a jury, to be confirmed by the Mayor's Court, and the amount to be paid "in full satisfaction of all demands, of all parties having any estate or interests in the buildings destroyed." Cases arising under this act were very largely discussed upon the doctrine of eminent domain, in the courts of New York,' and with reference to English authorities, although the error had been clearly pointed out by several of the judges in the courts of first instance.

The decision adverse to the claims was sustained upon the ground that "the property was not taken for public use, but it was destroyed to prevent the spreading of a conflagration, and thus saving the property of other persons in the immediate neighborhood. It was taken for private use. Nine-tenths of the city had little or no interest in the question," says the court. The benefit was considered local and not a benefit to the city - the defendant. The law of eminent domain is too widely extended to be discussed here, but in brief it may be said to have no real relation to the police law of which we treat. It does not even rest upon the basis of necessary action, but on the domination of the public use and benefit over private interests.* For the public benefit obtained just compensation is to be made, but there is no benefit to be recovered for by common law when property is necessarily destroyed.

I This provision of law now exists. N. Y. City Cons. Act of 1882, § 450. 'See Russell v. Mayor, etc., 2 Den. 461; Stone v. Mayor, etc., 25 Wend. 157; Lyon v. Jerome, 15 Wend. 574; see, also, Mass. Stat.; Taylor v. Plymouth, 8 Metc. 462; Parsons v. Pettengill, 11 Allen, 567.

3 Opinion of Judge Bronson, 2 Den. 464, 491; see Mugler v. Kansas, 125 U. S. 623; Mills Em. Dom., § 4; Scoville v. McMahon, 26 Atl. Rep. 470; 62 Conn. 378.

Cf. Monongahela Navigation Co. v. U. S., 148 U. S. 312: Cavanagh v. Durgin, 156 Mass. 466; Boston v. Brookline, 156 Mass. 172: Kellogg v. City of New Britain, 62 Conn. 232; Sargent v. City of New Haven, 62 Conn. 510; Railroad Co. v. Perkins, 49 Ohio, 326.

This police power or the law of overruling necessity is not controlled by the constitutional limitation that private property shall not be taken for public use without compensation, which was not designed for, and should not be extended to such cases. Our highest courts have said that society could not safely surrender the power to regulate by law certain business and trades, quoting the opinion of Lord Hale,' that private property affected with a public interest ceases to be juris privati only. The law of necessity has been stated to be an exception to all human ordinances and constitutions, yet has been frequently decided to be subject to the law of reason and subject to the control of the courts. "Multa autem jure civili contra rationem disputandi pro utilitate communi recepta esse innumerabilibus rebus probari potest" was a statement of the civil law.

"The generality of the terms employed by jurists and publicists in defining this power, while they show the breadth and universality of its presence, nevertheless leave its boundaries and limitations indefinite and impose upon the court the necessity and duty, as each case is presented, to determine its appropriate limits," was the remark of Mr. Justice Andrews in the opinion of the Court of Appeals in People v. Budd,' quoting Chief Justice Shaw in Commonwealth v. Alger, and at the close of this most important of the recent cases under this title extending the law to a comparatively new subject, viz., the charges of grain elevators, the court says: "The moment the police power is destroyed or curbed. by fixed and rigid rules, a danger is introduced into our system."

"The very

Police powers are inherent in every sovereignty." existence of government presupposes the right of the sovereign power to prescribe regulations demanded by the general welfare for the common protection of all." Mr. Justice Andrews says in the case above

'De Portibus Maris, 1 Harg. L. T. 78; Puffendorf, B. 2, chap 6.

Puchta Pandekten, I., § 21, 35. In f. d. ad. Leg. Aquil, 9. 2, III Blackstone Com. 74, quotes opinion in reference to proceedings against Sir Edward Coke for his course in the actions brought against the commissioners of sewers. "The pretense

for arbitrary measures was the necessity of unlimited powers in works of evident utility to the people. The supreme reason above all reasons which is the salvation of the king's lands and people. But now it is clearly held that this is subject to the discretionary coercion of His Majesty's Court of King's Bench." 1 Ventr. 66; Salk. 146.

5 Munn v. Illinois, 94 U. S. 113; People v. Budd, 117 N. Y. at p. 29; People v. Budd, U. S. Sup. Court, 143 U. S. 517, and cases cited; People v. King, 110 N. Y. 48.