brace almost every function of civil government. In this signification, the authority of the state to create educational and charitable institutions, to provide for the establishment and control of public highways, turnpikes, canals, wharves, ferries, and telegraph lines, to direct the reclamation of swamp lands, etc., may be referred to the power in question. But there is also a more particular and restricted sense, in which the term is almost always used when it enters into the discussion of constitutional questions. And in this meaning its scope is limited to the making of laws which are necessary for the preservation of the state itself, and to secure the uninterrupted discharge of its legitimate functions, for the prevention and punishment of crime, for the preservation of the public peace and order, for the preservation and promotion of the public safety, the public morals, and the public health, and for the protection of all the citizens of the state in the enjoyment of their just rights against fraud and oppression. Some laws are clearly within that scope. Others are more doubtful. But in the latter case, if the act in question is not open to objection on the ground of infringing some positive constitutional prohibition, its validity is sufficiently established without justifying it as a manifestation of the police power in action. And it is much better not to stretch the term to its widest limits. For the police power, properly so called, is so far-reaching in its importance and so paramount in its sway, even as against guarantied private rights, that its enlargement, by continual loose applications of the term to cases where it is neither needed nor appropriate, is dangerous to the safeguards of freedom. LOCATION OF THE POLICE POWER. 152. Under the American system of government, the power and authority to make police regulations is vested(a) In the legislatures of the several states, to a plenary degree, subject only to the paramount authority of positive constitutional prohibitions. • See New Orleans Gaslight Co. v. Louisiana Light, etc., Co., 115 U. S. 650, 6 Sup. Ct. 252. And see Lawton v. Steele, 152 U. S. 133, 14 Sup. Ct. 499; People v. Jackson & M. Plank-Road Co., 9 Mich. 307. (b) In congress, to a limited extent and for special purposes. (c) In the authorities of municipal corporations, in a subordinate and delegated manner. It must be observed that there is not a distinct police power inherent in municipal corporations, other than that of the state to which they owe their existence. In incorporating a municipality, the state delegates to it the power to make police regulations so far as may concern its own citizens, its own affairs, and its own territorial jurisdiction. This is in accordance with the principle of local self-government. Ordinances made in pursuance of this power must be tested as other municipal ordinances are. They must not contravene any constitutional provision, nor exceed the charter powers of the municipality, nor be unreasonable. The state may also make police regulations applicable to all its municipal corporations of a certain grade or class, or for particular cities, unless restrained by the constitution. And of course the police power delegated to a municipal corporation is not exclusive of that retained by the state. That is, municipal police regulations must yield to the general laws of the state, enacted under the same power, whenever there is a conflict between them. POLICE POWER VESTED IN CONGRESS. 153. Within the scope of its supreme authority, and in the exercise of its expressly granted powers, congress has the right to enact measures relating to the public police of the nation. The statement is frequently made that congress is not invested with the police power. It is true that congress has no general power to make police regulations for the people of the United States, nor has it authority to interfere, in matters not committed to its exclusive jurisdiction, with the internal affairs of the states, under the pretense of police regulations. The protection of the public safety, health, and morals is in general left to the care of the individual states. For example, when congress passed an act prohibiting the sale of certain kinds of oil, or of oil unable to undergo a fire test, it was adjudged that this act was plainly a police regulation, relating exclusively to the internal trade of the states, and therefore beyond the rightful power of congress, and it could be operative only within the District of Columbia.). But within its appointed sphere, congress possesses paramount authority. In the highest sense it is vested with the power of police, since it possesses the power to legislate for the preservation of national existence, the protection of national integrity, and the supremacy of national law.>The police power being primarily a right of self-defense, as applied to organized civil society, it must belong of right to every independent government, including that of the United States. Thus it is within the necessary power of the federal government to protect its own existence and the unhindered play of its legitimate activities. And to this end, it may provide for the punishment of treason, the suppression of insurrection or rebellion, and for the putting down of all individual or concerted attempts to obstruct or interfere with the discharge of the proper business of the government or those operations of commerce over which it has exclusive jurisdiction. So also in the important case of Re Neagle, the doctrine was laid down that there is "a peace of the United States," which it is the right and duty of federal officers to defend and preserve. And it belongs to the United States, as a sovereign and independent nation, to determine what classes or races of foreigners shall be admitted to settle within its limits, and who shall be forbidden, and also to expel or deport those unnaturalized aliens whose presence may be deemed detrimental to the general welfare. It is on this principle that the Chinese exclusion acts are sustained.⚫ 8 7 U. S. v. Dewitt, 9 Wall. 41. 8 135 U. S. 1, 10 Sup. Ct. 658. So, also, in Ex parte Siebold, 100 U. S. 371, Mr. Justice Bradley said: "We hold it to be an incontrovertible principle that the government of the United States may, by means of physical force, exercised through its official agents, execute on every foot of American soil the powers and functions that belong to it. This necessarily involves the power to command obedience to its laws, and hence the power to keep the peace to that extent." • See Nishimura Ekiu v. U. S., 142 U. S. 651, 659, 12 Sup. Ct. 336; Chae Chan Ping v. U. S., 130 U. S. 581, 9 Sup. Ct. 623; Fong Yue Ting v. U. S., 149 U. S. 698, 13 Sup. Ct. 1016. Again, the constitution confers upon congress power to levy taxes to provide for the common defense and general welfare of the United States; to establish a uniform rule of naturalization; to provide a punishment for counterfeiting the securities or coin of the United States; to define and punish piracies and felonies committed on the high seas and offenses against the law of nations; to provide for calling out the militia; to raise and support armies and navies; and to declare the punishment of treason. Laws have been passed in execution of every one of these powers. And every one of such laws is strictly and properly speaking an exercise of the police power. Furthermore, congress, under the constitution, possesses exclusive jurisdiction over certain subjects. And in its legislation upon these subjects, an act is not to be declared invalid merely because it has a purpose and design which ranks it as a police regulation. For instance, congress has no authority to legislate directly for the suppression of lotteries. But having exclusive control over the postal system, it has the power to prohibit the use of the mails for the transmission of lottery advertisements.10 So again, congress possesses the exclusive power to regulate foreign and interstate commerce. And in the exercise of this power it has passed laws to protect such trade and commerce against unlawful restraints and monopolies and against trusts and illegal combinations.11 To the same. category belong the acts of congress prohibiting the importation of adulterated articles of food or drink,12 and the laws regulating immigration, and prohibiting the entry of insane persons, paupers, persons suffering from contagious diseases, convicts, polygamists, assisted immigrants, and alien laborers brought in under contract for their labor.13. Here also should be classed the statute forbidding the importation of opium by the Chinese, and the national quarantine law." In the exercise of its power to regulate commerce with the Indian tribes, congress may prohibit the sale of liquor to an Indian under the charge of an 10 In re Rapier, 143 U. S. 110, 12 Sup. Ct. 374. 11 See U. S. v. Patterson, 55 Fed. 605. 12 Act Aug. 30, 1890. 13 See U. S. v. Craig, 28 Fed. 795; Church of Holy Trinity v. U. S., 143 U. S. 457, 12 Sup. Ct. 511; Head Money Cases, 112 U. S. 580, 5 Sup. Ct. 247. 14 The former of these is the act of February 23, 1887, and the latter the act of February 15, 1893. agent anywhere within the United States. And under the taxing power, and in connection with the internal revenue system, it has enacted a law "defining butter and imposing a tax upon, and regulating the manufacture, sale, importation, and exportation of oleomargarine." 1 The character of these various statutes, as police regulations, will be more clearly seen by comparison with the examples of the exercise of the same power by the states, now to be mentioned. 16 POLICE POWER OF THE STATES. 154. Subject to the authority of congress, within the sphere of its rightful powers, and subject to any restrictions imposed by the constitution, the legislature of each state possesses full power to enact police regulations on matters relating to— (a) The preservation of the state itself and the unhindered execution of its legitimate functions. (b) The prevention and punishment of crime. (c) The preservation of the public peace and order. (e) The purity and preservation of the public morals. (h) The regulation of property and rights of property, so far as to prevent its being used in a manner dangerous or detrimental to others. (i) The prevention of fraud, extortion, and oppression. (j) Roads and streets, and their preservation and re pair. (k) The preservation of game and fish. 18 U. S. v. Holliday, 3 Wall. 407. 16 See U. S. v. Eaton, 144 U. S. 677, 12 Sup. Ct. 764. |