THE POLICE POWER.

BY HON. ANDREW J. COBB, OF THE ATHENS, GEORGIA, BAR. FORMER PRESIDING JUSTICE OF THE SUPREME COURT OF GEORGIA, LECTURER ON CONSTITUTIONAL LAW, LAW DEPARTMENT UNIVERSITY OF GEORGIA.

The three indispensable powers of government are the taxing power, the power of eminent domain, and the police power. Government owes its life to the first, its ability to perform its functions to the second, and its orderly continuance to the third. Property is either taken or damaged when any one of these powers is exercised, but Government never takes or damages property without compensation. The citizen cannot be required to surrender anything that he may own to the Government without something being given in return by the Government. The compensation given by the government is not the same in all cases. The manner in which it is given varies in different cases where a Government sees proper to require of the citizen some portion of that which he owns and possesses. When the power of eminent domain is exercised the compensation is in money. When the citizen is deprived of property or a property right under the taxing or police power, the compensation received by the citizen is protection, health, peace, order, and the like. The line of demarcation between these powers is sometimes difficult of ascertainment, though the line between the power of eminent domain and the taxing power is more capable of exact designation than the line marking the difference between the power of eminent domain and the police power. One of the powers may be, for its complete exercise, dependent upon one of the others. The police power is sometimes dependent upon the taxing power. An inspection law, so far as it relates to the matter of surveillance of the business of a citizen, has its foundation in the police power, but the fees which the citizen is required to pay to the inspector are really collected under the taxing power. Each of the powers is inherent in Government. The limitations that may be placed upon the exercise of any of them are to be found either in constitutions or statutes. The exercise of each must be derived from a legislative enactment, and the legislative enactment must be within the prescribed bounds of the constitution. When there is no limit fixed in the constitution, the question as to the limit and extent of the power is to be answered primarily by

the Legislature. Where the constitution has spoken in reference to the subject, the question as to whether the legislative enactment is within the bounds of the constitution is for determination by the Courts.

The police power as to its limits and extent is undefined and indefinable. This is so from necessity. It is through the exercise of this power that we have a guaranty of health, peace, order, and all of those things which make life and its enjoyment possible. The police power may have to be called into exercise in what may be considered the more trivial affairs of life, as well as in those of gravest importance. It is the power which can require the careless citizen to bury a dead fowl upon his premises. It may regulate men of the learned professions in the exercise of the duties of their professional calling when it relates to the health or property of the citizen. It may regulate the great carriers of the world as to the manner in which articles which are dangerous to life may be transported, and prohibit the carriage of those that are a menace to health. By it the limb that overhangs the highway may be cut off, and the edifice may be destroyed to prevent the spread of a conflagration. In its exercise the harmless drunken person may be removed from the street, and the place at which he secured his liquor in violation of the law may be closed. We may obtain a view of the extent of the power by illustration, but its extent cannot be compressed within the bounds of a definition. The beneficent effects that result from its exercise are largely due to its indefinable character. There are some things which the law cannot afford to define. The moment that accurate definition appears, the hands of a wrongdoer are sometimes unloosed.

Is the police power then an arbitrary power? By no means. Its exercise is subject to limitations in the constitution and is also subject to limitations by the Legislature, and the enactment of the Legislature is subject to reveiw and revision by the Courts.. The Legislature may prohibit those things which are prejudicial to the welfare of the public, or it may command those things which are promotive of the general welfare.

At last, however, what is or what is not in the domain of the police power is a judicial question.

What would not be a legitimate exercise of the power in one territory might be a necessary exercise in another. What

would have been considered an unauthorized exercise in an age that has passed may be a necessary exercise in a subsequent age. Its exercise depends upon general conditions, as well as local conditions. Changed conditions may make that necessary which under former conditions might have been properly held to be arbitrary.

The power has been coexistent with government itself. The extent of its exercise broadens or lessens as conditions change. The existence of the power, its indefinable character, the delicate task of declaring when its exercise is arbitrary or when property and personal rights are unduly interferred with, emphasizes the importance of an honest, intelligent, and independent judiciary, and is an answer to those who would make the judiciary subject to the possible influence of popular prejudice and caprice.

To the judicial department of the Government is, therefore, committed the grave and important duty of deciding from time to time, whether that which purports to be in the interest of the general welfare is really such. Such a power should be confided to men of character, men of learning, and men who are fully abreast of the times in thought. The precedents of the past may sometimes have to be disregarded on account of the conditions of the present. One who is not thoroughly imbued with the view of the present in regard to matters which must be considered in the determination of this question is not well qualified for the exercise of the duty of determining the scope of this power. The one who has this responsible duty must not be ultra-conservative so as to cling with undue tenacity to the past. On the other hand, he must not be ultra-progressive so as to declare that within the power when conditions have not arisen that would justify such declaration. If the Judges in whom this power resides are elected by a popular vote the insidious influence of such method of election is bound to have its effect, and in determining the scope of the police power popular prejudice may find an expression either too much limiting it or giving to it too broad scope. If the Judges are chosen by the vote of the Legislature the evils of popular election are to some extent lessened, though they are still present in a degree. The chief executive of a state is one who should be, and generally is, abreast of the times in which he lives, and to him may be confided the selection of the e officers with more confidence

of satisfactory results than any other method that has been adopted. It is true that this reposes the selection in a single person. This is one of the strongest reasons for this method of selection. He can be held responsible for a selection that was unwise or improper. The voters at the ballot box are an irresponsible mass. The voters in a Legislature are a smaller mass, but there is a divided responsibility among a large number. The executive, the single person charged with a grave duty, can be identified and held responsible for his acts. The consciousness of this will generally bring him to the discharge of this duty in a state of mind where he will realize the gravity of the situation by which he is surrounded.

I was requested to write an article upon one phase of the police power, and I have digressed into a discussion of the method of selecting Judges. The digression was easy, and I think it was logical. The manner of selecting those who are to determine the extent of the power is certainly a phase in the discussion of the power itself. However, let it stand as a digression. Sometimes that which is said in a digression is of more importance than what is said in a discussion of the main question, just as what is said in an opinion by way of obiter is sometimes more lasting and of more importance than what was said in the direct discussion of the main question.-Case and Comment.

MR. LLOYD GEORGE'S PROPOSALS.

How eager is officialdom to extend its borders is indicated by the proposals put forward by Mr. Lloyd George in his speech at Swindon recently. A Ministry of Land is to be created, to which the existing functions of the Board of Agriculture are to be transferred, and a number of new duties, including the control of all matters relating to the registration of title and land transfer, are to be assigned. If these matters are to be the subject of official supervision, something may, no doubt, be said in favour of bringing them under the management of one central body. But the proposals of the Chancellor of the Exchequer go far beyond this. The administration of the law respecting settled estates is to be taken from the Court of Chancery-where at present all the questions within its province are dealt with expeditiously and inexpensively-and transferred, with such matters as the revision of notices to quit, the reduction of rents, and the fixing of the price of land required for public purposes, to a body of Commissioners through whom the powers of the new Ministry are to be operated. The Commissioners, though they are to act judicially' are not to sit in Courts. 'We are going,' says Mr. Lloyd George, who never loses an opportunity of gibing at his old profession, to keep the lawyers outside.' In other words, the mischievous policy of the Government to interfere with access to the Courts is to receive a large extension, and a new Department, free from the good influence of publice criticism, is to be established to deal with matters which the Judges are accustomed to decide in open Court. The officialism of the Land Registry is to be transformed into the despotism of a larger Department, and the encroachments of the Executive upon the province of the Law are to become yet more dangerous.