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In a general, and yet essentially correct sense, all of the legal control exercised by a State over persons and property, whatever form it may take, is an exercise of the State's Police Power. In American constitutional law, however, characterized as it is by the existence of written constitutional limitations upon the legal powers of governmental organs, whether legislative, executive, or judicial, the phrase Police Power is ordinarily limited in its ap plication to the general power which the State, in cases of need, may employ without reference to the ordinary private rights of person and property of the individual.

§ 725. Police Power Defined.

One of the classic definitions of the Police Power is that of Chief Justice Shaw, given in his opinion in Commonwealth v. Alger. He says: "We think it is a settled principle, growing out of the nature of well-ordered civil society, that every owner of property, however absolute and unqualified may be his title, holds it under the implied liability that his use of it shall not be injurious to the general enjoyment of others having an equal right to the enjoyment of their property, nor injurious to the rights of the community. All property in this Commonwealth is

held subject to those general regulations which are necessary to the common good and general welfare. Rights of property, like all other social and conventional rights, are subject to such reasonable limitations in their enjoyment as shall prevent them from being injurious, and to such reasonable restraints and regulations established by law as the legislature, under the governing and controlling power vested in them by the Constitution, may think necessary and expedient. This is very different from the right of eminent domain,- the right of a government to take and appropriate private property whenever the public exigency requires it, which can be done only on condition of providing a reasonable compensation therefor. The power we allude to is

47 Cush. 53.

5 This requirement of compensation in the case of the appropriation of private property under the right of eminent domain, is created in this country

rather the police power; the power vested in the legislature by the Constitution to make, ordain, and establish all manner of wholesome and reasonable laws, statutes, and ordinances, either with penalties or without, not repugnant to the Constitution, as they shall judge to be for the good and welfare of the Commonwealth, and of the subjects of the same. It is much easier to perceive and realize the existence and the sources of this power than to mark its boundaries, and prescribe the limits to its exercise." Hare, in his American Constitutional Law," says:

"The police power may be justly said to be more general and pervading than any other. It embraces all the operations of society and government; all the constitutional provisions presuppose its existence, and none of them preclude its legitimate exercise. It is impliedly reserved in every public grant. Chartered rights and privileges are therefore like other property, held in subordination to the authority of the government, which may be so exercised as to preclude the use or doing of the very thing which the company was constituted or authorized to manufacture or perform. The legislature cannot be presumed to have intended to tie its hands in this regard in the absence of express words; but if such a purpose were declared, it would fail, as an attempt to part with an attribute of sovereignty which is essential to the welfare of the community."

§ 726. Police Power Limited.

Though, as we have seen, there are necessarily many circumstances under which the political power, in behalf of public interests, may interfere with the freedom of action of the individual and the use by him of his own property, in no one of these cases by express constitutional provisions. In the absence of such constitutional provisions, express and implied, the individual thus deprived of property would have no legal claim for damages. To the author it appears proper to group the power of eminent domain under the general police powers of the State.

6 Vol. II, 766.

may this interference be an arbitrary one. That is to say, in each case, the propriety of the interference may be questioned by the individual, and, when so questioned, the official whose act constitutes the interference must be able to justify his act by referring to a valid law and to some consideration of public necessity or convenience. If a person is drafted into military service, there must have been enacted a valid drafting law, including within its application the class of persons to which the individual drafted belongs. If a contract formally valid is refused enforcement, it must be shown to be opposed to public policy. If property is taken under eminent domain, it must be for a public use, and compensation must be given. If the rates charged by public service corporations are regulated by law, the regulation must be a reasonable one and not one, in its effect, confiscatory of private property. Finally, to constitute a valid exercise of the so-called police power of the State, there must be shown some public advantage to be gained by thus interfering with the personal liberty and property rights of the individual.

Now, in exactly the same way in which the civil authorities. may by law or through executive action control the activities of the individual and the use of his property in the interest of the public good, the military arm of a government may be employed to preserve the public peace and to secure the execution of the laws.

In European countries, living under written constitutions, provision is quite generally made for the declaration in times of danger of what is called a "state of siege," the effect of which is immediately to suspend the operation of all the ordinary constitutional limitations upon executive power. No similar status is known to American law. The use of the military arm of our States or of the Federal Government in time of peace and upon domestic soil to maintain order and secure the execution of law in no wise operates to suspend civil law or to negate individual rights of liberty and property, any more than the exercise of the ordinary police powers by the State has this effect. The use of

the military forces of a State for the maintenance of order and law is, indeed, not dissimilar in purpose and character to the employment by a sheriff of a posse comitatus to assist him in making an arrest, preventing an escape, or serving a writ. In both cases those who exercise authority are obliged to justify whatever acts they may have committed by showing their necessity, or, at least, producing evidence to show that they had reasonable grounds for believing them to be necessary.

§ 727. Martial Law Does not Abrogate Civil Law and Civil Guarantees.

There is, then, strictly speaking, no such thing in American law as a declaration of martial law whereby military is substituted for civil law. So-called declarations of martial law are, indeed, often made, but the legal effect of these goes no further than to warn citizens that the military powers have been called upon by the executive to assist him in the maintenance of law and order, and that, while the emergency lasts, they must, upon pain of arrest and punishment, not commit any acts which will in any way render more difficult the restoration of order and the enforcement of law. Some of the authorities stating substantially this doctrine are quoted in the footnote below."

7" The term martial law refers to the exceptional measures adopted whether by the military or the civil authorities, in times of war or of domestic disturbance, for the preservation of order and the maintenance of the public authority. To the operation of martial law all the inhabitants of the country or of the disturbed district, aliens as well as citizens, are subject." Moore, Int. Law Digest, II, 186. As to the subjection of aliens to Martial Law, see Moore, II, 196.

In the cases of the Bristol Riots in 1831-1832 (S. T. U. S. III, 2-56), the opinion reads: "A soldier for the purpose of establishing civil order is only a citizen armed in a particular manner. He cannot because he is a soldier excuse himself if without necessity he takes human life. The duty of magistrates and peace officers to summon or to abstain from summoning the assistance of the military depends in like manner on the necessities of the case. The whole action of the military when called in ought, from first to last, to be based on the principle of doing, and doing without fear, that which is absolutely necessary to prevent serious crime, and of exercising all care and skill with regard to what is done. No set of rules exists which

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During the time that the military forces are employed for the enforcement of law, that is to say, when so-called martial law is in force, no new powers are given to the executive, no extension of arbitrary authority is recognized, no civil rights of the individual are suspended. The relations of the citizen to his State are unchanged. Whatever interference there may be with his personal freedom or property rights must be justified, as in governs every instance or defines beforehand every contingency which may The question whether, on any occasion, the moment has come for firing upon a mob of rioters, depends, as we have said, on the necessities of the case. . . An order from the magistrate who is present is required by military regulations, and wisdom and discretion are entirely in favor of the observance of such a practice. But the order of the magistrate has at law no legal effect. Its presence does not justify the firing if the magistrate is wrong. Its absence does not excuse the officer from declining to fire when the necessity exists. With the above doctrines of English law the Riot Act does not interfere. Its effect is only to make the failure of a crowd to disperse for a whole hour after the proclamation has been read a felony; and on this ground to afford statutory justification for dispersing a felonious assemblage, even at the risk of taking life.”

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In Ela v. Smith (5 Gray [Mass.], 121) the court say: "While thus recognizing the authority of the civil officers to call out and use an armed force to aid in suppressing a riot or tumult actually existing, or preventing one which is threatened, it must be borne in mind that no power is conferred on the troops, when so assembled, to act independently of the civil authority. They are to act as an armed police only, subject to the absolute and exclusive control and direction of the magistrates and other civil officers designated in the statute, as to the specific duty or service which they are to perform. Nor can the magistrate delegate his authority to the military force which he summons to his aid; or vest in the military authorities any discretionary power to take any steps or do any act to prevent or suppress a mob or riot. They must perform only such service, and render such aid, as is required by the civil officers. It does not follow from this, however, that the military force is to be taken wholly out of the control of the proper officers. They are to direct its movements in the execution of the orders given by the civil officers, and to manage the details in which a specific service or duty is to be performed. But the service or duty must be first prescribed and designated by the civil authority."

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8 The writ of habeas corpus may have been suspended. Of this we shall speak presently. But this suspension does not give any additional arbitrary authority to either the civil or military authorities,—it does not operate to legalize any act of theirs that otherwise would have been illegal. The only effect of the suspension of the writ is to prevent, for the time being, a judi cial examination of the legality of the detention of the individual.

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