as industry changes from agriculture to commerce, or as property changes from physical things to bargaining and contracts, or as population becomes more congested and people interfere with one another, or as public opinion regarding lice rights and duties, morals and welfare, advances from ignoPower rance to intelligence, from servitude to liberty. It is the police power, for the most part, that affords, in the case of the state governments, that elastic justification by which the state abridges or enlarges liberty or property without compensation, in order to achieve a newly recognized public purpose through a newly recognized class of persons or things.

g. Commerce Power and Federal Powers. The police power is not isolated from the other powers. All of them are but different ways of looking at the single power of sovereignty. But, under our system of government, sovereignty is divided between the federal government and the state governments. The federal government has specific delegated powers of taxation, of regulation of foreign and interstate commerce, while the states have the taxing power, and, in addition, the "police power." But the federal government uses its delegated powers to accomplish the same purposes that the states accomplish with their reserved police power. The taxing power is used by the federal government, not merely to secure revenue, but to protect industry and labor against foreign competition, or to suppress state bank-notes, colored oleomargarine, or poisonous phosphorus matches. The "commerce" power is used to regulate railroad rates and services, to restrict hours of labor and to require the adoption of safety devices by railroad or steamship companies. New lines of legislation protecting labor, such as child labor and workmen's compensation, if adopted by state governments, are justified by the police power -if adopted by the federal government, they are justified by the taxing power or the commerce power. Yet all powers are but the single power of sovereignty split up to fit the constitutional divisions of government.1

h. Police Power and the Constitution. From the foregoing,

1 For detailed history of the conflict between the commerce and police powers, see Hastings, "The Development of Law as Illustrated by the Decisions Relating to the Police Power of the State," in Proceedings of the American Philosophical Society, 1900, Vol. XXXIX, p. 349.

it will be seen how impossible it is accurately to define the police power, the taxing power, or the commerce power. Comparing the police power with the principles of the common law Freund says the state "exercises its compulsory powers for the prevention and anticipation of wrong by narrowing common-law rights through conventional restraints and positive regulations which are not confined to the prohibition of wrongful acts. It is the latter kind of state control which constitutes the essence of the police power. The maxim of this power is that every individual must submit to such restraints in the exercise of his liberty or of his rights of property as may be required to remove or reduce the danger of the abuse of these rights on the part of those who are unskilful, careless, or unscrupulous."

Describing this power as developed under American institutions, Ely says: 2 "It is that power of the courts committed to them by American constitutions whereby they must shape property and contract to existing social conditions by settling the question of how far social regulations may, without compensation, impose burdens on property."

Comparing it with other powers of government, Hastings says: "It is not necessary to adopt Treitschke's oft-repeated declaration, that the state is force, in order to conclude that the 'police power' is a fiction. Every judge whom we have seen attempt to analyze it finds in it Madison's 'indefinite supremacy' of the state. The doctrine of faculties and separate powers of the state may not be as essentially absurd as Treitschke thinks, but in our case the term is certainly a mere abstract and collective one for the state, where regarded as employed in certain functions." Hastings also says that the police power is "a branch of constitutional law peculiar to countries having legislatures with limited power. It is an outgrowth of the American conception of protecting the individual from the state."

"4

We may not say that the police power is a fiction, for it is a necessary part of the reasoning by which, under our federal

1 Police Power, p. 8.

2 Property and Contract in Their Relations to the Distribution of Wealth, 1914, Vol. I, p. 220.

Hastings, op. cit., p. 349.

Ibid., p. 360.

constitution, the distinction is made by the courts between those powers that belong to the states and those that belong to the federal government. Yet, from another point of view, it is a fallacious distinction if it pretends to assign to the states a different kind of power from that exercised by the federal government. We have just said that the federal government accomplishes, under the name of "taxing power" or "commerce power," what the states accomplish under the name of police power. While the refinements of legal logic may seem to make these powers different, they are identical from the standpoint of the kind of legislation and the public purpose which they justify. The police power has sometimes narrowly been held to be limited to matters of health and morals. But legislatures and Congress refuse to be limited in this way. They regulate the bargaining power of individuals and corporations where no justification can be found in the protection of health and morals. From this standpoint the theory of the police power is used by the courts to determine how far the state legislature may be permitted to go. But they use similar standards or principles to determine how far Congress may go in using the taxing power and the commerce

power.

Hereafter, for our purposes, in speaking of the police power, we shall use the term in this broad sense, to imply all the powers of government, whether state or federal, whether of police, taxation, or interstate commerce, in so far as they are used to justify that indefinite extension of power to abridge liberty or property without compensation for some newly recognized public purpose. The practical problem with which we are concerned is not so much the technical legal distinctions between different powers, as the extent to which these powers are increasingly used to determine the bargaining relations between employers and employees. In this way, without formal amendment, the American constitutions are unconsciously amended by the police power through the change of public opinion regarding the rights and duties of labor. This change works its way into the constitutions, partly through the discretion of public authorities, and partly through the application of old principles of justice to new conditions.

(2) Public Authorities

Here the issue is between the amount of discretion, or power to enforce one's own opinion, allotted to the executive, legislative, and judicial branches of government. Shall the legislature or Congress use its sovereign power to the extreme limit of equalizing fortunes and giving labor a high preference over capital, or shall it be restricted to narrower limits? In other words, can the legislature, under whatever power of taxation, commerce, or police, put into force its own notions of "general welfare" and "social expediency," or must it be limited to the notions held by the courts?

In monarchical countries, or countries whose executives inherit monarchical powers, executive discretion still remains to the monarch, or president, or the executive council,' after legislative powers have been taken away by Parliament. This power of discretion is the executive's power to decide when and where a law applies, and to issue rules, regulations, ordinances, or orders which have the effect of law, which are needed to enforce the law, or even are thought by the executive necessary to fill any gaps which Parliament has left in the scheme of laws. Indeed, in enforcing a law, every executive officer must exercise some discretion, which he does as his own opinion directs. Discretion is the power to act without interference according to one's own opinions, or policy, or theory of things. It is not supposed to be capricious or changeable. It is power to adopt and follow a policy, not power to be arbitrary and unreasonable. Even a policeman must make up his mind. whether a man is drunk or not, before applying the law against public intoxication. Policemen may differ in their opinions on this matter, even though the facts do not differ, and their differences are the little germs of what, in the case of a mayor, governor, president, or king, would be called executive policy, or executive discretion.

Under the theory of our constitution, however, the executive officers have no discretion to follow a policy of their own. The legislature is the policy-making branch of government. It has discretion; it can put its opinions into effect; it can

1Switzerland.

adopt a policy, because it is supposed to represent all interests in society and to know all the facts. The effort is therefore made in our country to limit the executive discretion as narrowly as possible, in order that it may be said that the executive merely enforces the law as he finds it. To do otherwise would be to delegate legislative power to an authority that is not legislative under the constitution.

But with us, not even the legislature is the supreme legislative power. The written constitutions are the fundamental laws, enacted directly by the people themselves. Being laws, they also express a policy, based on the opinion of the people who adopted them. And their policy must prevail against the legislative discretion. The policy of the constitutions is extremely individualistic. It asserts inalienable and natural rights of individuals against all others and against the state itself. When a policy of the legislature set forth in a statute comes into conflict with this individualistic policy of the constitutions, some one must be called upon to decide which shall prevail. The supreme courts, at first with hesitation, but afterward with assurance, have made these decisions. If a statute of the legislature fixing the hours of labor conflicts with the constitution, the courts merely refuse to enforce itthey enforce the constitution itself. They declare the law "unconstitutional."

But there is a principle of our courts to the effect that a law is not unconstitutional if a way can be found to sustain it. Hence, if there is an apparent conflict between the constitution and the attempt of the legislature to abridge private rights, and if the court cannot support the legislature under the other limited justifications of taxation, guardianship, proprietorship, eminent domain, or protection of person and property, it may see its way to support it under the elastic justification of the police power. Thus the police power in America may be looked upon as the courts' justification for gradually amending the constitution by interpretation so that it may conform to the new objects and new restrictions on prop

For history of laws declared unconstitutional see Moore, "The Supreme Court and Unconstitutional Legislation,' Columbia University Studies in History, Economics, and Public Law, Vol. LIV, 1913, No. 2.