years later, when the legislature propounded the following question to the supreme court: "Is it within the constitutional power of the legislature to enact a law conferring upon a city or town within this commonwealth the power to purchase coal and wood as fuel, in excess of its ordinary requirements, for the purpose of selling such excess, so purchased, to its own citizens?" a majority of the court (five judges out of seven) answered it in the negative.121

LIMITATIONS OF THE POLICE POWER.

155. It is necessary to the validity of police regulations that they should not

(a) Violate any provision of the federal or state constitution.

(b) Interfere with the exclusive jurisdiction of con

gress.

(c) Unlawfully discriminate against individuals or

classes.

(d) Be unreasonable.

(e) Invade private rights of liberty or property unnecessarily.

(f) They must actually relate to some one or more of the objects for the preservation of which this power may be exercised, and be proper and adapted to that purpose.

Limitations under Federal Constitution.

In the nice adjustment of rights and powers between the states and the Union, questions frequently arise which require a determination of the relative scope of the police power of the state and the authority vested in congress. In such cases, the integrity of each must be preserved, without encroachment upon the other. The jurisdiction secured to the federal government by the constitution sets a limit to the police power of the states. "The subjects

121 Opinion of the Justices, 155 Mass. 598, 30 N. E. 1142. These cases are interesting and important as tending to show how our constitutions are opposed to state socialism, or to the wielding of municipal powers in the direction of co-operative business enterprises.

upon which the state may act are almost infinite; yet in its regulations in respect to all of them there is this necessary limitation, that the state does not thereby encroach upon the free exercise of the power vested in congress by the constitution." 122 Yet a state has the same unlimited jurisdiction over all persons and things within its territorial limits as any foreign nation, where that jurisdiction is not surrendered or restrained by the federal constitution, and "all those powers which relate to merely municipal legislation, or what may perhaps more properly be called internal police, are not thus surrendered or restrained, and consequently in relation to these, the authority of a state is complete, unqualified, and exclusive." For instance, notwithstanding the exclusive power of congress to grant patents for inventions, it still remains within the power of each state to make reasonable police regulations to protect the purchaser of patent rights against fraud and imposition in their sale, and also to regulate, or exclude from its internal commerce, articles which its legislature may deem dangerous, noxious, or unfit for use, although covered by patents.124 But while the

" 123

state has power to protect itself by lawful police regulations, they must not be inconsistent with any of the terms of the national constitution, such as those provisions which guaranty to citizens of one state the rights and privileges of citizens in all the states, or which prohibit the states from abridging the privileges and immunities of citizens of the United States.125 Again, the requirement that no state shall pass any law impairing the obligation of contracts imposes a limitation upon the police power. But if the alleged contract involves a relinquishment or surrender of that power to in dividuals or corporations, it is one which the legislature would have

122 W. U. Tel. Co. v. Pendleton, 122 U. S. 347, 7 Sup. Ct. 1126. 128 Mayor, etc., of City of New York v. Miln, 11 Pet. 102, 139.

124 Patterson v. Kentucky, 97 U. S. 501; Reeves v. Corning, 51 Fed. 774; In re Brosnahan, 18 Fed. 62.

125 For example, a state law providing for the inspection of animals intended to be slaughtered for human food cannot be regarded as a rightful exercise of the police power if the inspection prescribed is of such a character, or is burdened with such conditions, as will prevent the introduction into the state of sound meats, the product of animals slaughtered in other states. Minnesota v. Barber, 136 U. S. 313, 10 Sup. Ct. 862; Brimmer v. Rebman, 138 U. S. 78, 11 Sup. Ct. 213.

no power to make, and therefore, being void, may be abrogated by the same or a succeeding legislature.126 Again, neither under this power nor any other exercise of governmental authority, can the citizen be deprived of his property without due process of law. At the same time, it is "the settled doctrine that, as government is organized for the purpose, among others, of preserving the public health and the public morals, it cannot divest itself of the power to provide for those objects, and that the fourteenth amendment was not designed to interfere with the exercise of that power by the states."

99 127

State Police Power and the Regulation of Commerce.

It is often difficult to determine the boundary line between the police power of the state and the commercial power of congress. But the solution is to be found in their co-ordination and not in their antagonism. The power of the national government to regulate foreign and interstate commerce, and the power of the individual state to enact regulations for its internal police, are co-ordinate powers. Each must be preserved entire, but neither must en croach upon the other. On the one hand, congress has no power,

126 The leading case on this point is Beer Co. v. Massachusetts, 97 U. S. 25. The question at issue was whether the charter of a private corporation, authorizing it to engage in the manufacture of malt liquor, and, as incidental thereto, to dispose of the products, constituted a contract protected against subsequent legislation prohibiting the manufacture of liquors within the state. The beer company claimed the right under its charter to manufacture and sell beer without limit as to time, and without reference to any exigencies in the health or morals of the community requiring such manufacture to cease. It was decided that while the company acquired, by its charter, the capacity, as a corporation, to engage in the manufacture of malt liquors, its business was at all times subject to the same governmental control as like business conducted by individuals; and that the legislature could not divest itself of the power, by such appropriate means, applicable alike to individuals and corporations, as its discretion might devise, to protect the lives, health, and property of the people, or to preserve good order and the public morals. The prohibitory enactment of which the beer company complained was held to be a mere police regulation, which the state could establish even had there been no reservation of authority to amend or repeal its charter.

127 Powell v. Pennsylvania, 127 U. S. 678, 8 Sup. Ct. 992, 1257; Munn v. Illinois, 94 U. S. 113; Muun v. People, 69 Ill. 80.

under pretense of regulating commerce, to interfere with the domestic police of the state On the other hand, the state has no power, under pretense of police regulations, to interfere with the paramount control of congress over commerce. "The police power of a state and the foreign commercial power of congress must stand together. Neither of them can be so exercised as materially to affect the other. The sources and objects of these powers are exclusive, distinct, and independent, and are essential to both governments. The one operates upon our foreign commerce, the other upon the internal concerns of a state." 128 While a state, for example, in the exercise of its police power, may enact sanitary laws, quarantine laws, and reasonable inspection laws, and while it may take such action as will prevent the introduction into the state of convicts, paupers, and persons or animals suffering from contagious or infectious diseases, yet it may not interfere with transpor tation into or through the state, beyond what is absolutely necessary for its self-protection. It may not, under cover of exerting its police power, substantially burden or prohibit either foreign or interstate commerce.129 A tax on immigrants is an unlawful interference with foreign commerce, and cannot be justified as an exercise of the police power.' 130 But on the other hand, a state law authorizing the erection of a dam across a small navigable creek, in order to exclude the tide and reclaim an unhealthy marsh, is not a regulation of commerce, but the exercise of the right, common to every state, to adopt such measures as will, in the opinion of the legislature, promote the health of the inhabitants or give additional value to the land.131

The limitation of the police power of the state, when it comes in conflict with the commercial power of congress is well illustrated

128 License Cases, 5 How. 504, 592; Robbins v. Shelby Co. Taxing Dist., 120 U. S. 489, 7 Sup. Ct. 592; Sherlock v. Alling, 93 U. S. 99. A police regulation of a state prohibiting the running of freight trains on Sunday is not invalid, as interfering with interstate commerce, although in effect it prevents freight trains from passing through the state on that day from and to adjacent states. Hennington v. Georgia, 163 U. S. 299, 16 Sup. Ct. 1086. 129 Railroad Co. v. Husen, 95 U. S. 465. And see Kimmish v. Ball, 129 U. S. 217, 9 Sup. Ct. 277.

130 Henderson v. Mayor of City of New York, 92 U. S. 259.

131 Willson v. Blackbird Creek Marsh Co., 2 Pet. 245.

BL.CONST.L.-24

by certain decisions touching the traffic in intoxicating liquors (a subject admittedly within the general scope of the police power) 'to which we now direct the attention of the reader. It had been settled that, as regards foreign commerce, the power of congress was exclusive, and that no state had the power, by taxation, license laws, or otherwise, to impose any burden upon the importation or sale of any article authorized by the laws of congress to be imported into the country, so long as it remained in the hands of the importer and in the original bale, package, or vessel in which it was imported.132) But it was supposed that the rule in regard to commerce between the states was different, at least to the extent that the several states might legislate upon the subject unless and until congress should pass an act occupying the ground. In the case of Pierce v. New Hampshire 133 the inquiry was as to the constitutionality of a law of New Hampshire, prohibiting the sale of liquor without a license, in its application to a case where the article sold was a barrel of American gin, purchased in Boston, and carried coastwise to a landing in New Hampshire and there sold by the importer in the same barrel. It was adjudged that the state law might validly apply to a sale under these circumstances, and that, in such application, it was not inconsistent with the provisions of the federal constitution. The grounds of this decision were summed up by Taney, C. J., in his opinion in the case, as follows: "Upon the whole, the law of New Hampshire is in my judgment a valid one. For although the gin sold was an import from another state, and congress have clearly the power to regulate such importations, under the grant of power to regulate commerce among the several states, yet, as congress has made no regulation on this subject, the traffic in the article may be lawfully regulated by the state as soon as it is landed in its territory, and a tax imposed upon it, or a license required, or a sale altogether prohibited, according to the policy which the state may suppose to be its interest or duty to pursue." And thus the law remained for many years. It was the settled doctrine that liquors transported from one state into another were subject to the laws of the latter state relating to their sale, to the same extent as any other liquors already lawfully with

132 Brown v. Maryland, 12 Wheat. 419.

133 License Cases, 5 How. 504.