subjects, so that it is impossible to tell which object was intended by the legislature, the courts are not at liberty to select one object and sustain the law as to that alone; the whole act must fall.153

153 Skinner v. Wilhelm, 63 Mich. 568, 30 N. W. 311; City of San Antonio v. Gould, 34 Tex. 49.

DEFINITION AND GENERAL CONSIDERATIONS.

149. There is in every sovereignty an inherent and plenary power to make all such laws as may be necessary and proper to preserve the public security, order, health, morality, and justice. This power is called the "police power." It is a fundamental power and essential to government, and is based upon the law of overruling necessity.

Definition.

In its most general sense, "police" is the function of that branch of the administrative machinery of government which is charged with the preservation of public order and tranquillity, the promotion of the public safety, health, and morals, and the prevention, detection, and punishment of crimes. And the police power is the power vested in a state to establish laws and ordinances for the regulation and enforcement of its police, as just defined. It has been remarked by the supreme court of the United States that while many attempts have been made to define the police power, the endeavor has never met with entire success. "It is always easier to determine whether a particular case comes within the general scope of the power than to give an abstract definition of the power itself which will be in all respects accurate." 1

1 Stone v. Mississippi, 101 U. S. 814, 818. "The police power of a state is co-extensive with self-protection, and is not inaptly termed 'the law of

Nature and Origin of Power.

It cannot be doubted that the origin of this power must be sought in the very purpose and framework of organized society. It is fundamental and essential to government. It is a necessary and inherent attribute of sovereignty. It antedates all laws, and may be described as the assumption on which constitutions rest. For the state (whether we regard it as an association of individuals or as a moral organism) must have the right of self-protection and the right to preserve its own existence in safety and prosperity, else it could neither fulfill the law of its being nor discharge its duties to the individual. And to this end, it is necessarily invested with power to enact such measures as are adapted to secure its own authority and peace, and to preserve its constituent members in safety, health, and morality. Theories of the state, according as they tend to enlarge or restrict the legitimate sphere of its functions and activities, will create theories as to the proper limitations of the police power. But its existence, in a measure proportioned to the rights and duties it is to guard, is implied in the recognition of the state as a factor in law and civilization. "It is a power," as has been well said, "essential to self-preservation, and exists, necessarily, in every organized community. It is, indeed, the law of nature, and is possessed by man in his individual capacity." For these reasons it appears that the nature and authority of the police power are best described by the maxim "salus populi suprema lex," while the principle, "sic utere tuo ut alienum non laedas," furnishes, in most cases, a convenient rule for its application.3

Police Power Distinguished from Eminent Domain.

There is a broad distinction between the taking of private property for a public use, under the power of eminent domain, and the incidental injury or inconvenience, or damage or deterioration, which may result to property or business on account of the exertion of

overruling necessity.' It is that inherent and plenary power in the state which enables it to prohibit all things hurtful to the comfort and welfare of society." Lake View v. Rose Hill Cemetery, 70 Ill. 191. "The police power of a state extends to the protection of the lives, limbs, health, comfort, and quiet of all persons, and the protection of all property within the state." Thorpe v. Rutland & B. R. Co., 27 Vt. 140.

• License Cases, 5 How. 588. 8 See Wynehamer v. People, 13 N. Y. 378.

the police power of the state, when its purpose is the promotion of the public welfare. In the former case, compensation must be made to the owner; in the latter case, no such obligation arises. All rights of property are subject to the paramount authority of the state to prohibit any use which may be deemed detrimental to the public safety, health, or morals. "Nor does the prohibition of such noxious use of property, a prohibition imposed because such use would be injurious to the public, although it may diminish the profits of the owner, make it an appropriation to a public use, so far as to entitle the owner to compensation. If the owner of a vacant lot in the midst of a city could erect thereon a great wooden building and cover it with shingles, he might obtain a larger profit of his land than if obliged to build of stone or brick with a slated roof. If the owner of a warehouse in a cluster of other buildings could store quantities of gunpowder in it for himself and others, he might be spared the great expense of transportation. If a landlord could let his building for a smallpox hospital, or a slaughter house, he might obtain an increased rent. But he is restrained; not because the public have occasion to make the like use, or to make any use, of the property, or to take any benefit or profit to themselves from it, but because it would be a noxious use, contrary to the maxim, sic utere tuo ut alienum non laedas. (It is not an appropriation of the property to a public use, but the restraint of an injurious private use by the owner, and is therefore not within the principle of property taken under the power of eminent domain) The distinction, we think, is manifest in principle, although the facts and circumstances of different cases are so various that it is often difficult to decide whether a particular exercise of legislation is properly attributable to the one or the other of these acknowledged powers."

4 Com. v. Alger, 7 Cush. 53, 86. See, also, Moore v. City of Indianapolis, 120 Ind. 483, 22 N. E. 424; Fertilizing Co. v. Hyde Park, 97 U. S. 659; Beer Co. v. Massachusetts, Id. 25; Mugler v. Kansas, 123 U. S. 623, 8 Sup. Ct. 273; Bancroft v. City of Cambridge, 126 Mass. 438. Compare Wynehamer v. People, 13 N. Y. 378, with the foregoing cases, and particularly with Mugler v. Kansas.

POLICE POWER INALIENABLE.

150. The police power cannot be surrendered by the legislature or irrevocably alienated in favor of individuals or corporations.

In several instances, police regulations have been assailed, in respect to their validity, on the ground that they were repugnant to that clause of the federal constitution which prohibits the states from passing laws impairing the obligation of contracts. But it has always been held that the police power is an inalienable attribute of sovereignty, and therefore can never be curtailed or diminished; that it is present, by implication, in every act of legislation; and that no legislature can either surrender or sell it, or destroy or hamper the power of its successors to make such enactments as they may deem proper in matters of public police. From this it follows that (if an irrevocable grant of franchises or any contract made by the legislature with an individual or a corporation specifies or implies. a relinquishment of the police power of the state, it is to that extent invalid, the legislature having exceeded the authority delegated to it by the people. In other words, the exercise by the state, at any time, of its right to legislate for the protection and good government of the community can never be construed into a violation of the prohibition in question, notwithstanding its effect may be to repeal existing charters, or otherwise invade the terms of legislative engagements."

SCOPE OF THE POWER.

151. The "police power," as the term is used in constitutional law, does not embrace the general field of legislation, but is restricted to matters which are properly of police regulation.

There is a certain broad and general sense in which the scope of the police power may be made to include all legislation and to em

Stone v. Mississippi, 101 U. S. 814; Boyd v. Alabama, 94 U. S. 645; Butchers' Union Slaughterhouse Co. v. Crescent City Live-Stock Landing Co., 111 U. S. 746, 4 Sup. Ct. 652; Kresser v. Lyman, 74 Fed. 765.

BL.CONST.L.-22