CHAPTER X

THE EXERCISE OF THE POLICE POWER

WE are accustomed to associate with the word "police" the idea of a body of officers to whom the enforcement of law is entrusted. But the legal significance of the word is much broader. In this sense we speak of the police power of a State as its system of internal regulation "by which 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," i.e., of the citizens. It is assumed that all property of the State is held subject to those general regulations which are necessary for the common welfare. So, too, in the conduct of private business and in the family and social relations of life, citizens are not entirely free to determine their own conduct; but through its police regulations the State insures "to each the uninterrupted enjoyment of his own rights so far as is reasonably consistent with a like enjoyment of rights by others." *

We are most familiar with the police regulations that are calculated to preserve public order and prevent offences against persons and property. A number of other instances in which the police power is used will now be noticed.

1. Individuals are subjected to governmental control for the preservation of public health. Until recent years, health and sanitary laws were matters of local govern*Cooley, Constitutional Limitations, 704, 706.

sanitation.

ment only; but at present State boards of health are almost universal. The establishment of these boards has made the regulations upon this subject more uniform; at the same time the administration of laws has Health and become more thorough. For popular ignorance and prejudice often prevent the execution of adequate sanitary measures. This is especially true when contagious diseases prevail. Stringent regulations then become necessary for disinfection, isolation, and quarantine. Local boards of health exist in the cities, but they are not so common in rural districts. These boards are made subject to control by State boards.

In the interest of public health, private property may be declared a nuisance and removed or destroyed at private expense. Many cities have officers who inspect plumbing and appliances for sewage disposal. The inspection of foods of all kinds is a function of health boards. Most States prohibit the sale of cigarettes to minors as being injurious to health. These measures are preventive in character, and their scope is constantly being enlarged. The chemical examination of water supplies reveals an important source of disease. A number of cities have forbidden expectoration in streetcars and public places. The establishment of hospitals and sanitariums for tuberculous patients has been begun in some localities. Health regulations also extend to the examination of horses and cattle and their condemnation when diseased.

from

2. The public is protected from danger in other ways than by these health regulations; for instance, by laws Protection requiring that buildings containing halls for public as danger. semblages shall have doors that swing outward, and by laws compelling the erection of fire-escapes on tall buildings. In cities, wooden structures may not be built within the "fire limits" that are prescribed by ordi

250847

commerce.

nances.

Private property may be destroyed to prevent

the spread of fire.

The law regulates certain kinds of business on the ground that carelessness might render them injurious to individuals or to the public. For this reason the sale of explosives, fire-arms, and poisonous drugs is accompanied by legal restraints. So in the use of a public wharf or a market-place, the interests of the few must be subordinated to the welfare of the greater number.

3. The conduct of individuals upon public highways is subject to legal control; the law may fix the rate of speed and require vehicles to turn to the right. Travel Travel and by water is likewise regulated. The States declare certain rivers and lakes within their limits to be navigable waters; these become highways, open to the public.* Consequently, such matters as the conduct of vessels, the building of dams, bridges, and docks are regulated under the police power of the States.

Common carriers.

4. Persons and corporations are subject to police regulation because of the nature of the service they, render, as in the case of the "common carriers." A common carrier is "one who holds himself as a carrier, inviting the employment of the public generally. The most familiar classes of common carriers are railroad companies, stage coach proprietors, expressmen, truckmen, ship-owners, steam-boat lines, lightermen, and ferrymen." Any person falling within this definition "is bound to serve without favoritism all who desire to employ him, and is liable for the safety of goods entrusted to him, except by losses from the act of God or from public enemies, or unless special exemption has been agreed upon; and in respect to the safety of passengers carried he is liable to injuries which he might

* But if they are used in interstate or foreign traffic, they are subject to control by the National government. See p. 200.

service

have prevented by special care."* Frequently the maximum rates to be charged by common carriers are fixed by law. This is also true in those kinds of business that involve a more or less complete monopoly. It is held that these are quasi (i.e., in a certain degree) public employments. The water, lighting, and transporta- Publiction services of a city are subject to control for this industries. reason. Telegraph and telephone companies resemble common carriers very closely, though they are not considered such in law. Yet they are often made subject to the same regulations and liabilities as common carriers. Legal restraints are enacted for certain employments in which there is liability that patrons will not receive fair treatment. This is true (aside from health regulations) regarding the sale of milk, cheese, and oleomargarine. On the same principles, too, the management of hotels and theatres is controlled.

employ

5. Certain employments and practices are forbidden or placed under restrictions because they are in them- Restricted selves immoral. The pursuit of gambling in its various ments. forms falls under this head. The State interferes to prevent the infliction of cruelty upon animals because acts of this nature are immoral; and also because the moral sense of people is shocked by the sight or knowledge of their occurrence. Partly on the ground of the immorality of intemperance, and partly because of the dangers with which the public is threatened through this vice, the manufacture and sale of intoxicating liquors is the subject of State control.

employ

In the regulation of employments, for whatever reason, it is customary for the State to require licenses. Licensed This is for the purpose of preventing persons from ments. entering these employments indiscriminately. Accompanying the license is a fee, the amount of which may * Century Dictionary.

Liquor laws.

be (1) simply sufficient to cover the expense of inspection and regulation; or (2) it may be large enough to discourage or even to render impracticable the pursuit of the licensed business.* In its legal aspect, then, a business which is licensed is presumed to be legitimate, but to require regulation in order that the public may not suffer from abuses that may arise in connection with it.

The laws regulating the manufacture and sale of intoxicating liquors are very numerous. Some of the most common of these prohibit the sale to minors, to intoxicated persons, and to habitual drunkards; also, the sale of liquors is forbidden on Sunday, on legal holidays, election days, and during certain hours of the night. The following restrictions are found in different States. There shall not be more than one saloon to a certain number of inhabitants. There shall be no saloon within certain distances of public schools, colleges, churches, or parks. Screens and all obstacles to a clear view of the place where liquor is sold are prohibited. In some States liquor must be sold only with eatables or in connection with lodging-houses and hotels. In other States liquor must never be sold under these conditions. The consent of the owners of property in the same block or near the saloon is sometimes required. Liquor dealers are made responsible for damage caused by an intoxicated person who is known to be dangerous when under the influence of liquor.

*The term "license fee " is often attached to taxes; e.g., the license fees paid under United States law on the manufacture and sale of liquors. The idea here is simply the gaining of revenue. Many States require license fees with the sole purpose of raising revenue. See p. 66. For the fiscal year ending June 30, 1896, the license fees, special taxes, and fines imposed upon the liquor business by States, counties, and municipalities amounted to $50,569,313. During the same year the revenue of the United States from this source was $114,450,862. Bulletin of Department of Labor, No. 17, July, 1898.