Commerce among the States consisted largely of the interchange of articles that had been imported from other countries for distribution and sale. Importers doing business in one State could sell on credit to persons living in other States so long as they could be sure that no State could pass any law that would affect the legal obligation to pay debts. Until the abolition of slavery and the enfranchisement of the negroes at the end of the Civil War, there was no need of any constitutional provision to prevent the States from violating the rights of citizens of the United States or denying to any person the equal protection of the laws.

During the first part of the nineteenth century, some of the States, in order to safeguard public health, began to regulate burials in city cemeteries by means of laws that limited the property rights of owners of plots. After the introduction of railroads and steamboats, the States, in order to protect the rights of passengers and shippers, enacted new laws that deprived those common carriers of a part of their property right to manage their business as they saw fit. When the growth of manufacturing caused an influx of working people who lived in unsanitary tenements that were a menace to public health, some of the States enacted sanitary laws that affected the property rights of the owners of tenement houses. The employment of women and children in industry led to the enactment of State health laws regulating the sanitary conditions of factories, prohibiting the employment of children of school age, and limiting the hours of labor of women and children workers. These laws affected the right of the factory owners to manage their business as they saw fit, denied to women citizens the right to earn their living by certain kinds of work, and limited the right of parents to

the earnings of their children. Many of the States limited the hours of labor in mines by laws that impaired the property rights of mine owners and of mine workers alike. In course of time, the States and the United States regulated the rates to be charged and the service to be rendered by railroad and other public service corporations by laws that deprived the owners of their property right to carry on their business in their own way. The States and United States enacted quarantine laws; laws declaring unlawful contracts in restraint of trade and commerce and suppressing monopolies; pure food and drug laws; white slave laws; and many other laws that affected constitutional guaranties.

Application of Constitutional Guaranties.

In deciding cases in which the validity of State statutes to protect public health, to promote public morality, and to regulate commerce has been challenged on the ground that in their operation, they either deprived persons of their property without due process of law or impaired the obligation of contracts or abridged the privileges or immunities of citizens of the United States or denied to persons the equal protection of the laws, the courts have ruled uniformly that, under their police power, the State governments have always had the power to provide for public health and public morality, and, under their commerce power, have had power to regulate trade and industry within their borders. The courts also in determining the validity

The police power is so called because it originated in cities which in old times were the only communities that needed health and morality regulations. The Greek word for city—woλs— was applied to all city laws, which were called police laws. It is now used for similar laws of the larger communities.

of such State statutes have constantly declared that the constitutional guaranties of liberty and property are to be construed in the light of the social and economic conditions which existed when the statutes were made, not in the light of such conditions existing when the constitutions were made. In like manner, the courts in dealing with acts of Congress for the regulation of commerce among the States and with foreign countries have held that the United States has power to regulate such commerce in all ways that are not forbidden by the Constitution of the United States, and that the guaranties of liberty and property contained in that instrument and in the amendments, so far as they affect the validity of such acts of Congress, are to be construed in the light of the social and economic conditions that existed when the acts were passed, not in the light of such conditions existing when the guaranties were made.

The courts, in determining the applicability of constitutional guaranties to statutes, have constantly ruled that, as those guaranties are intended to promote the welfare of society, statutes made to promote social welfare under new social conditions are not invalid, although under previous social conditions such statutes would have been repugnant to those guaranties. The courts in applying the constitutional guaranties follow one principle so long as that principle is reasonable. When new social conditions have called for different' statutory enactments and the former principle is no longer reasonable, they apply new principles so that the aims and purposes of the constitutional guaranties may not be defeated.

Many good authorities hold that in thus disregarding rules of laws that have ceased to be reasonable and in making new rules to give effect to the objects of con

stitutional guaranties, the courts have legislated.' Other jurists believe that such rulings show, instead of a close adherence by the courts to the words of constitutional provisions, a distinct movement on the part of the courts toward a recognition of the effect in practice of constitutional provisions, in place of a close adherence to their terms. The courts generally regard their new constructions of such guaranties as judicial acts done in the strict performance of the judicial duty to construe and interpret general constitutional provisions so as to effect the great object for which they were made the welfare of society.

"I recognize without hesitation that judges must and do legislate, but they can do so only interstitially; they are confined from molar to molecular motions." Justice Holmes in So. Pacific Co. v. Jensen, 244 U. S. Rep. 205.

2 "Perhaps the most significant advance in the modern science of law is the change from the analytical to the functional attitude. . . . The emphasis has changed from the content of the precept and the existence of the remedy to the effect of the precept in action and the availability and efficiency of the remedy to attain the end for which the precept was devised." Pound Administrative Application of Legal Standards. Proceedings of American Bar Association, 1919, pp. 441, 449.

CHAPTER VII

THE POLICE POWER

Validity of Welfare Legislation.

In the case of Holden v. Hardy,' decided in 1898, in which the U. S. Supreme Court sustained the constitutionality of an act of the Utah legislature making eight hours a working day in underground mines. Justice Brown explained as follows the origin and nature of the police powers of the States.2

While the people of each State may . . . adopt such systems of laws as best conform to their own traditions and customs, the people of the entire country have laid down in the Constitution of the United States certain fundamental principles to which each member of the Union is bound to accede as a condition of its admission as a State. Thus, the United States are bound to guarantee to each State a republican form of government, and the tenth section of the first article contains certain other specified limitations upon the power of the several States, the object of which was to secure to Congress paramount authority with respect to matters of universal concern. In addition, the Fourteenth Amendment contains a sweeping provision forbidding the States from abridging the privileges and immunities of citizens of the United States, and denying them the benefit of due process or the equal protection of the laws.

This court has never attempted to define with precision 169 U. S. Rep., 366, 395.

"Justices Brewer and Peckham dissented.