CITES BY TOPIC:  police power

Black's Law Dictionary, Sixth edition, p. 1156:

Police power.   An authority conferred by the American constitutional system in the Tenth Amendment, U.S. Const., upon the individual states, and, in turn, delegated to local governments, through which they are enabled to establish a special department of police; adopt such laws and regulations as tend to prevent the commission of fraud and crime, and secure generally the comfort, safety, morals, health, and prosperity of the citizens by preserving the public order, preventing a conflict of rights in the common intercourse of the citizens, and insuring to each an uninterrupted enjoyment of all the privileges conferred upon him or her by the general laws.

The power of the State to place restraints on the personal freedom and property rights of persons for the protection of the public safety, health, and morals or the promotion of the public convenience and general prosperity.  The police power is subject to limitations of the federal and State constitutions, and especially to the requirement of due process.  Police power is the exercise of the sovereign right of a government to promote order, safety, security, health, morals and general welfare within constitutional limits and is an essential attribute of government.  Marshall v. Kansas City, Mo., 355 S.W.2d 877, 883.

[Black's Law Dictionary, Sixth edition, p. 1156]

San Diego Gas & Electric Co. v. City of San Diego, 450 U.S. 621 (1981):

"...police power regulations must be substantially related to the advancement of the public health, safety, morals, or general welfare, see Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 395 (1926)"

[San Diego Gas & Electric Co. v. City of San Diego, 450 U.S. 621 (1981)]

Reid v. Colorado, 187 U.S. 137, 148 (1902):

"It should never be held that Congress intends to supersede or by its legislation suspend the exercise of the police powers of the States, even when it may do so, unless its purpose to effect that result is clearly manifested."

[Reid v. Colorado, 187 U.S. 137, 148]

Keller v. United States, 213 U.S. 138 (1909)

Jurisdiction over such an offense comes within the accepted definition of the police power. Speaking generally, that power is reserved to the states, for there is in the Constitution no grant thereof to Congress.

In Patterson v. Kentucky, 97 U.S. 501, 503 , 24 S. L. ed. 1115, 1116, is this declaration:

"In the American constitutional system,' says Mr. Cooley, 'the power to establish the ordinary regulations of police has been left with the individual states, and cannot be assumed by the national government.' Cooley, Counst. Lom. 574. While it is confessedly difficult to mark the precise boundaries of that power, or to indicate, by any general rule, the exact limitations which the states must observe in its exercise, the existence of such a power in the states has been uniformly recognized in this court. Gibbons v. Ogden, 9 Wheat. 1, 6 L. ed. 23; License Cases, 5 How. 504, 12 L. ed. 256; Gilman v. Philadelphia, 3 Wall. 713, 18 L. ed. 96; Henderson v. New York (Henderson v. Wickham) 92 U.S. 259 , 23 L. ed. 543; Hannibal & St. J. R. Co. v. Husen, 95 U.S. 465 , 24 L. ed. 527; Boston Beer Co. v. Massachusetts, 97 U.S. 25 , 24 L. ed. 989. It is embraced in what Mr. Chief Justice Marshall, in Gibbons v. Ogden, calls that 'immense mass [213 U.S. 138, 145]   of legislation' which can be most advantageously exercised by the states, and over which the national authorities cannot assume supervision or control.'

And in Barbier v. Connolly, 113 U.S. 27, 31 , 28 S. L. ed. 923, 924, 5 Sup. Ct. Rep. 357, 359, it is said:

'But neither the amendment-broad and comprehensive as it is-nor any other amendment was designed to interfere with the power of the state, sometimes termed its police power, to prescribe regulations to promote the health, peace, morals, education, and good order of the people, and to legislate so as to increase the industries of the state, develop its resources, and add to its wealth and prosperity.'

Further, as the rule of construction, Chief Justice Marshall, speaking for the court in the great case of M'Culloch v. Maryland, 4 Wheat. 316, 405, 4 L. ed. 579, 601, declares:

    'This government is acknowledged by all to be one of enumerated powers. The principle that it can exercise only the powers granted to it would seem too apparent to have required to be enforced by all those arguments which its enlightened friends, while it was depending before the people, found it necessary to urge. That principle is now universally admitted. But the question respecting the extent of the powers actually granted is perpetually arising, and will probably continue to arise, as long as our system shall exist.'

In Houston v. Moore, 5 Wheat. 1, 48, 5 L. ed. 19, 30, Mr. Justice Story says:

    'Nor ought any power to be sought, much less to be adjudged, in favor of the United States, unless it be clearly within the reach of its constitutional charter. Sitting here, we are not at liberty to add one jot of power to the national government beyond what the people have granted by the Constitution.'

Art. 10 of Amendments; New York v. Miln, 11 Pet. 102, 133, 9 L. ed. 648, 660; License Cases, 5 How. 504, 608, 630, 12 L. ed. 256, 303, 313; United States v. Dewitt, 9 Wall. 41, 44, 19 L. ed. 593, 594; Patterson v. Kentucky, 97 U.S. 501, 503 , 24 S. L. ed. 1115, 1116; Barbier v. Connolly, 113 U.S. 27, 31 , 28 S. L. ed. 923, 924, 5 Sup. Ct. Rep. 357; Re Rahrer ( Wilkerson v. Rahrer) 140 U.S. 545, 555 , 35 S. L. ed. 572, 574, 11 Sup. Ct. Rep. 865; United States v. E. C. Knight Co. 156 U.S. 1, 11 , 39 S. L. ed. 325, 328, 15 Sup. Ct. Rep. 249; Cooley, Const. Lim. 574.

Doubtless it not infrequently happens that the same act [213 U.S. 138, 146]   may be referable to the power of the state, as well as to that of Congress. If there be collision in such a case, the superior authority of Congress prevails. As said in New York v. Miln, 11 Pet. 102, 137, 9 L. ed. 648, 661:

'From this it appears that whilst a state is acting within the legitimate scope of its power as to the end to be attained, it may use whatsoever means, being appropriate to that end, it may think fit, although they may be the same, or so nearly the same as scarcely to be distinguishable from those adopted by Congress, acting under a different power, subject only, say the court, to this limitation, that, in the event of collision, the law of the state must yield to the law of Congress. The court must be understood, of course, as meaning that the law of Congress is passed upon a subject within the sphere of its power.'

In Gulf, C. & S. F. R. Co. v. Hefley, 158 U.S. 98, 104 , 39 S. L. ed. 910, 912, 15 Sup. Ct. Rep. 802, 804, the rule is stated in these words:

'Generally it may be said, in respect to laws of this character, that, though resting upon the police power of the state, they must yield whenever Congress, in the exercise of the powers granted to it, legislates upon the precise subject-matter, for that power, like all other reserved powers of the states, is subordinate to those in terms conferred by the Constitution upon the nation. 'No urgency for its use can authorize a state to exercise it in regard to a subject-matter which has been confided exclusively to the discretion of Congress by the Constitution.' Henderson v. New York (Henderson v. Wickham) 92 U.S. 259, 271 , 23 S. L. ed. 543, 548. 'Definitions of the police power must, however, be taken subject to the condition that the state cannot, in its exercise, for any purpose whatever, encroach upon the powers of the general government, or rights granted or secured by the supreme law of the land.' New Orleans Gaslight Co. v. Louisiana Light & H. P. & Mfg. Co. 115 U.S. 650, 661 , 29 S. L. ed. 516, 520, 6 Sup. Ct. Rep. 252, 258. 'While it may be a police power in the sense that all provisions for the health, comfort, and security of the citizens are police regulations, and an exercise of the police power, it has been said more than once in this court that, where such powers are so exercised as to come within the domain of Federal authority as defined [213 U.S. 138, 147]   by the Constitution, the latter must prevail.' Morgan's L. & T. R. & S. S. Co. v. Board of Health, 118 U.S. 455, 464 , 30 S. L. ed. 237, 241, 6 Sup. Ct. Rep. 1114, 1118.'

See also Lottery Case (Champion v. Ames) 188 U.S. 321 , 47 L. ed. 492, 23 Sup. Ct. Rep. 321.

[Keller v. United States, 213 U.S. 138 (1909)]

Findlaw Website, Fourteenth Amendment Annotations:

  Police Power Defined and Limited .--The police power of a State today embraces regulations designed to promote the public convenience or the general prosperity as well as those to promote public safety, health, and morals, and is not confined to the suppression of what is offensive, disorderly, or unsanitary, but extends to what is for the greatest welfare of the state. 65  

Because the police power is the least limitable of the exercises of government, such limitations as are applicable are not readily definable. These limitations can be determined, therefore, only through appropriate regard to the subject matter of the exercise of that power. 66 ''It is settled [however] that neither the 'contract' clause nor the 'due process' clause had the effect of overriding the power of the state to establish all regulations that are reasonably necessary to secure the health, safety, good order, comfort, or general welfare of the community; that this power can neither be abdicated nor bargained away, and is inalienable even by express grant; and that all contract and property [or other vested] rights are held subject to its fair exercise.'' 67 Insofar as the police power is utilized by a State, the means employed to effect its exercise can be neither arbitrary nor oppressive but must bear a real and substantial relation to an end which is public, specifically, the public health, public safety, or public morals, or some other phase of the general welfare. 68  

A general rule often invoked is that if a police power regulation goes too far, it will be recognized as a taking of property for which compensation must be paid. 69 Yet where mutual advantage is a sufficient compensation, an ulterior public advantage may justify a comparatively insignificant taking of private property for what in its immediate purpose seems to be a private use. 70 On the other hand, mere ''cost and inconvenience (different words, probably, for the same thing) would have to be very great before they could become an element in the consideration of the right of a state to exert its reserved power or its police power.'' 71 Moreover, it is elementary that enforcement of uncompensated obedience to a regulation passed in the legitimate exertion of the police power is not a taking without due process of law. 72 Similarly, initial compliance with a regulation which is valid when adopted occasions no forfeiture of the right to protest when that regulation subsequently loses its validity by becoming confiscatory in its operation. 73  

[Footnote 65] Long ago Chief Justice Marshall described the police power as ''that immense mass of legislation, which embraces every thing within the territory of a State, not surrendered to the general government.'' Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 202 (1824). See California Reduction Co. v. Sanitary Works, 199 U.S. 306, 318 (1905); Chicago B. & Q. Ry. v. Drainage Comm'rs, 200 U.S. 561, 592 (1906); Bacon v. Walker, 204 U.S. 311 (1907); Eubank v. Richmond, 226 U.S. 137 (1912); Schmidinger v. Chicago, 226 U.S. 578 (1913); Sligh v. Kirkwood, 237 U.S. 52, 58 -59 (1915); Nebbia v. New York, 291 U.S. 502 (1934); Nashville, C. & St. L. Ry. v. Walters, 294 U.S. 405 (1935). See also Penn Central Transp. Co. v. City of New York, 438 U.S. 104 (1978) (police power encompasses preservation of historic landmarks; land-use restrictions may be enacted to enhance the quality of life by preserving the character and aesthetic features of city); City of New Orleans v. Dukes, 427 U.S. 297 (1976); Young v. American Mini Theatres, 427 U.S. 50 (1976).

[Footnote 66] Hudson Water Co. v. McCarter, 209 U.S. 349 (1908); Eubank v. Richmond, 226 U.S. 137, 142 (1912); Erie R.R. v. Williams, 233 U.S. 685, 699 (1914); Sligh v. Kirkwood, 237 U.S. 52, 58 -59 (1915); Hadacheck v. Sebastian, 239 U.S. 394 (1915); Hall v. Geiger-Jones Co., 242 U.S. 539 (1917); Panhandle Eastern Pipeline Co. v. Highway Comm'n, 294 U.S. 613, 622 (1935).

[Footnote 67] Atlantic Coast Line R.R. v. Goldsboro, 232 U.S. 548, 558 (1914).

[Footnote 68] Liggett Co. v. Baldridge, 278 U.S. 105, 111 -12 (1928); Treigle v. Acme Homestead Ass'n, 297 U.S. 189, 197 (1936).

[Footnote 69] Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922); Welch v. Swasey, 214 U.S. 91, 107 (1909). See also Penn Central Transp. Co. v. City of New York, 438 U.S. 104 (1978); Agins v. City of Tiburon, 447 U.S. 255 (1980). See supra, pp. 1382-95.

[Footnote 70] Noble State Bank v. Haskell, 219 U.S. 104, 110 (1911).

[Footnote 71] Erie R.R. v. Williams, 233 U.S. 685, 700 (1914).

[Footnote 72] New Orleans Public Service v. New Orleans, 281 U.S. 682, 687 (1930).

[Footnote 73] Abie State Bank v. Bryan, 282 U.S. 765, 776 (1931).

AT&T Corp. et al. v. Iowa Utilities Board et al., 525 U.S. 366 (1999)

"The most the FCC can claim is linguistic ambiguity. But such a claim does not help the FCC, for relevant precedent makes clear that, when faced with ambiguity, we are to interpret statutes of this kind on the assumption that Congress intended to preserve local authority. See, e.g., Cipollone v. Liggett Group, Inc., 505 U. S. 504, 518 (1992) ("presumption against the pre-emption of state police power regulations"); Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 230 (1947) (requiring "clear and manifest" showing of congressional intent to supplant traditional state police powers)."

[AT&T CORP. et al. v. IOWA UTILITIES BOARD et al., 525 U.S. 366 (1999)]

Leisy v. Hardin, 135 U.S. 100 (1890)

"By the tenth amendment, 'the powers not delegated to the United States by the constitution, nor prohibited by it to the states, are reserved to the states, respectively, or to the people.' Among the powers thus reserved to the several states is what is commonly called the 'police power,'-that inherent and necessary power, essential to the very existence of civil society, and the safeguard of the inhabitants of the state against disorder, disease, poverty, and crime. 'The police power belonging to the states in virtue of their general sovereignty,' said Mr. Justice STORY, delivering the judgment of this court, 'extends over all subjects within the territorial limits of the states, and has never been conceded to the United States.' Prigg v. Pennsylvania, 16 Pet. 539, 625. This is well illustrated by the recent adjudications that a statute prohibiting the sale of illuminating oils below a certain fire test is beyond the constitutional power of congress to enact, except so far as it has effect within the United States (as, for instance, in the District of Columbia) and without the limits of any state; but that it is within the constitutional power of a state to pass such a statute, even as to oils manufactured under letters patent from the United States. U. S. v. Dewitt, 9 Wall. 41; Patterson v. Kentucky, 97 U.S. 501 . [135 U.S. 100, 128]   The police power includes all measures for the protection of the life, the health, the property, and the welfare of the inhabitants, and for the promotion of good order and the public morals. It covers the suppression of nuisances, whether injurious to the public health, like unwholesome trades, or to the public morals, like gambling-houses and lottery tickets. Slaughter-House Cases, 16 Wall. 36, 62, 87; Fertilizing Co. v. Hyde Park, 97 U.S. 659 ; Phalen v. Virginia, 8 How. 163, 168; Stone v. Mississippi, 101 U.S. 814 . This power, being essential to the maintenance of the authority of local government, and to the safety and welfare of the people, is inalienable. As was said by Chief Justice WAITE, referring to earlier decisions to the same effect: 'No legislature can bargain away the public health or the public morals. The people themselves cannot do it, much less their servants. The supervision of both these subjects of governmental power is continuing in its nature, and they are to be dealt with as the special exigencies of the moment may require. Government is organized with a view to their preservation, and cannot divest itself of the power to provide for them. For this purpose the largest legislative discretion is allowed, and the discretion cannot be parted with any more than the power itself.' Stone v. Mississippi, 101 U.S. 814 , 819. See, also, Butchers' Union, etc., Co. v. Crescent City, etc., Co., 111 U.S. 746, 753 , 4 S. Sup. Ct. Rep. 652; New Orleans Gas Co. v Louisiana Light Co., 115 U.S. 650, 672 , 6 S. Sup. Ct. Rep. 252; New Orleans v. Houston, 119 U.S. 265, 275 , 7 S. Sup. Ct. Rep. 198.

"The police power extends not only to things intrinsically dangerous to the public health, such as infected rags or diseased meat, but to things which, when used in a lawful manner, are subjects of property and of commerce, and yet may be used so as to be injurious or dangerous to the life, the health, or the morals of the people. Gunpowder, for instance, is a subject of commerce, and of lawful use; yet, because of its explosive and dangerous quality, all admit that the state may regulate its keeping and sale. And there is no article the right of the state to control or to prohibit the sale or manufacture of which within its limits is better established than [135 U.S. 100, 129]   intoxicating liquors. License Cases, 5 How. 504; Downham v. Alexandria Council, 10 Wall. 173; Bartemeyer v. Iowa, 18 Wall. 129; Beer Co. v. Massachusetts, 97 U.S. 25 ; Tiernan v. Rinker, 102 U.S. 123 ; Foster v. Kansas, 112 U.S. 201 , 5 Sup. Ct. Rep. 8; Mugler v. Kansas and Kansas v. Ziebold, 123 U.S. 623 , 8 Sup. Ct. Rep. 273; Kidd v. Pearson, 128 U.S. 1 , 9 Sup. Ct. Rep. 6; Eilenbecker v. District Court, 134 U.S. 31 , ante, 424.

"In Beer Co. v. Massachusetts, above cited, this court, affirming the judgment of the supreme judicial court of Massachusetts, reported in 115 Mass. 153, held that a statute of the state, prohibiting the manufacture and sale of intoxicating liquors, including malt liquors, except as therein provided, applied to a corporation which the state had long before chartered, and authorized to hold real and personal property, for the purpose of manufacturing malt liquors. Among the reasons assigned by this court for its judgment were the following: 'If the public safety or the public morals require the discontinuance of any manufacture or traffic, the hand of the legislature cannot be stayed from providing for its discontinuance, by any incidental inconvenience which individuals or corporations may suffer. All rights are held subject to the police power of the state. Whatever differences of opinion may exist as to the extent and boundaries of the police power, and however difficult it may be to render a satisfactory definition of it, there seems to be no doubt that it does extend to the protection of the lives, health, and property of the citizens, and to the preservation of good order and the public morals. The legislature cannot, by any contract, divest itself of the power to provide for these objects. They belong emphatically to that class of objects which demand the application of the maxim, salus populi suprema lex; and they are to be attained and provided for by such appropriate means as the legislative discretion may devise. That discretion can no more be bargained away than the power itself. Since we have already held, in the case of Bartemeyer v. Iowa, that as a measure of police regulation, looking to the [135 U.S. 100, 130]   preservation of public morals, a state law prohibiting the manufacture and sale of intoxicating liquors is not repugnant to any clause of the constitution of the United States, we see nothing in the present case that can afford any sufficient ground for disturbing the decision of the supreme court of Massachusetts.' 97 U.S. 32 , 33."

[Leisy v. Hardin, 135 U.S. 100 (1890)]

State of Wisconsin v. Pelican Insurance Company, 127 U.S. 265 (1888):

"By the law of England and of the United States the penal laws of a country do not reach beyond its own territory [127 U.S. 265, 290]   except when extended by express treaty or statute to offenses committed abroad by its own citizens; and they must be administered in its own courts only, and cannot be enforced by the courts of another country. Wheat. Int. Law, (8th Ed.) 113, 121. Chief Justice MARSHALL stated the rule in the most condensed form, as an incontrovertible maxim, 'the courts of no country execute the penal laws of another.' The Antelope, 10 Wheat. 66, 123. The only cases in which the courts of the United States have entertained suits by a foreign state have been to enforce demands of a strictly civil nature. The Sapphire, 11 Wall. 164; King of Spain v. Oliver, 2 Wash. C. C. 429, and Pet. C. C. 217, 276." 

[State of Wisconsin v. Pelican Insurance Company, 127 U.S. 265 (1888)]

In Re Quarles, 158 U.S. 532 (1895):

"It is the duty and the right, not only of every peace officer of the United States, but of every citizen. to assist in prosecuting, and in securing the punishment of, any breach of the peace of the United States. It is the right, as well as the duty, of every citizen, when called upon by the proper officer, to act as part of the posse comitatus in upholding the laws of his country. It is likewise his right and his duty to communicate to the executive officers any information which he has of the commission of an offense against those laws; and such information, given by a private citizen, is a privileged and con- [158 U.S. 532, 536]   fidential communication, for which no action of libel or slander will lie, and the disclosure of which cannot be compelled without the assent of the government. Vogel v. Gruaz, 110 U.S. 311 , 4 Sup. Ct. 12; U. S. v. Moses, 4 Wash. C. C. 726, Fed. Cas. No. 15,825; Worthington v. Scribner, 109 Mass. 487.

"The right of a citizen informing of a violation of law, like the right of a prisoner in custody upon a charge of such violation, to be protected against lawless violence, does not depend upon any of the amendments to the constitution, but arises out of the creation and establishment by the constitution itself of a national government, paramount and supreme within its sphere of action. U. S. v. Logan, 144 U.S. 294 , 12 Sup. Ct. 617. Both are, within the concise definition of the chief justice in an earlier case, 'privileges and immunities arising out of the nature and essential character of the national government, and granted or secured by the constitution of the United States.' In re Kemmler, 136 U.S. 436, 448 , 10 S. Sup. Ct. 930.

"The right of the private citizen who assists in putting in motion the course of justice, and the right of the officers concerned in the administration of justice, stand upon the same ground, just as do the rights of citizens voting and of officers elected, of which Mr. Justice Miller, speaking for this court, in Ex parte Yarbrough, above cited, said: 'The power in either case arises out of the circumstance that the function in which the party is engaged, or the right which he is about to exercise, is dependent on the laws of the United States. In both cases it is the duty of that government to see that he may exercise this right freely, and to protect him from violence while so doing, or on account of so doing. This duty does not  rise solely from the interest of the party concerned, but from the necessity of the government itself, that its service shall be free from the adverse influence of force and fraud practiced on its agents, and that the votes by which its members of congress and its president are elected shall be the free votes of the electors, and the officers thus chosen the free and uncorrupted choice of those who have the right to take part in that choice.' 110 U.S. 662 , 4 Sup. Ct. 152.

"To leave to the several states the prosecution and punish- [158 U.S. 532, 537]   ment of conspiracies to oppress citizens of the United States, in performing the duty and exercising the right of assisting to uphold and enforce the laws of the United States, would tend to defeat the independence and the supremacy of the national government. As was said by Chief Justice Marshall in McCulloch v. Maryland, and cannot be too often repeated: 'No trace is to be found in the constitution of an intention to create a dependence of the government of the Union on those of the states, for the execution of the great powers assigned to it. Its means are adequate to its ends; and on those means alone was it expected to rely for the accomplishment of its ends. To impose on it the necessity of resorting to means which it cannot control, which another government may furnish or withhold, would render its course precarious, the result of its measures uncertain, and create a dependence on other governments which might disappoint its most important designs, and is incompatible with the language of the constitution.' 4 Wheat. 316, 424.


"The necessary conclusion is that it is the right of every private citizen of the United States to inform a marshal of the United States or his deputy of a violation of the internal revenue laws of the United States; that this right is secured to the citizen by the constitution of the United States; and [158 U.S. 532, 538]   that a conspiracy to injure, oppress, threaten, or intimidate him in the free exercise or enjoyment of this right, or because of his having exercised it, is punishable under section 5508 of the Revised Statutes."

 [In Re Quarles, 158 U.S. 532 (1895)]

Mugler v. Kansas, 123 U.S. 623 (1887):

The police power cannot go beyond the limit of what is necessary and reasonable for guarding against the evil which injures or threatens the public welfare in the given case, and the legislature, under the guise of that power, cannot strike down innocent occupations and destroy private property, the destruction of which is not reasonably necessary to accomplish the needed reform; and this, too, although the legislature is the judge in each case of the extent to which the evil is to be regulated or prohibited. Where the occupation is in itself immoral, there can be no question as to the right of the legislature. 2 Kent, Comm. 340. Nor is it denied that every one holds his property subject to the proper exercise of the police power. Dill. Mun. Corp. 136; Tied. Lim. Police Power, 122, 122a; Com. v. Tewksbury, 11 Metc. 55. Nor that the legislature can destroy vested rights in the proper exercise of this power. Coates v. Mayor of New York, 7 Cow. 585. But the unqualified statement that when the legislature has exercised its right of judging, by the enactment of a [626-Continued.]

prohibition, all other departments of the government are bound by the decision, which no court has a right to review, (Bish. St. Cr. 995,) cannot be true. The legislative power cannot authorize manifest injustice by positive enactment, or take away security for personal liberty or private property, for the protect on whereof government was established. Calder v. Bull, 3 Dall. 386. The state cannot deprive the citizen of the lawful use of his property if it does not injuriously effect others. Lake View v. Cemetery Co., 70 Ill. 191. The state cannot enact laws, not necessary to the preservation of the health and safety of the community, that will be oppressive and burdensome to the citizen. Railway Co. v. City of Jacksonville, 67 Ill. 37. The constitutional guaranty of life, liberty, and pursuit of happiness is not limited by the temporary caprice of a present majority, and can be limited only by the absolute necessities of the public. Intoxicating Liquor Cases, (BREWER, J.,) 25 Kan. 765; Tenement- House Cigar Case, 98 N. Y. 98; Cooley, Const. Lim. (5th Ed.) 110, 445, 446. No proposition is more firmly established than that the citizen has the right to adopt and follow such lawful and industrial pursuit, not injurious to the community, as he may see fit. People v. Marx, 99 N. Y. 377, 386, 2 N. E. Rep. 29. The mere existence of a brewery in operation, or of beer therein in vats, or packages not intended for consumption in the state is not in any way detrimental to the safety, health, or morals of the people of Kansas; nor can it be said that there is anything immoral in the business of brewing, or in beer itself, as in gambling or lotteries. Stone v. Mississippi, 101 U.S. 814 .

There is no question that this enactment does in the sense of the law deprive appellees of their property. Pumpelly v. Green Bay Co., 13 Wall. 177; Munn v. Illinois, 94 U.S. 141 .

It is a fundamental principle that where a nuisance is to be abated, the abatement must be limited by its necessities, and no wanton injury must be committed. The remedy is to stop the use to which the building is put, not to tear down or destroy the structure itself. Babcock v. City of Buffalo, 56 N. Y. 268, affirming 1 Sheld. 317; Bridge Co. v. Paige, 83 N. Y. 188-190; Wood, Nuis. 738. The nuisance here is sale within the state. To that extent alone can the legislature authorize the nuisance to be abated or the property destroyed.

[Mugler v. Kansas, 123 U.S. 623 (1887)]

Nebia v. People of State of New York, 291 U.S. 502 (1934):

And Chief Justice Taney said upon the same subject: 'But what are the police powers of a State? They are nothing more or less than the powers of government inherent in every sovereignty to the extent of its dominions. And whether a State passes a quarantine law, or a law to punish offenses, or to establish courts of justice, or requiring certain instruments to be recorded, or to regulate commerce within its own limits, in every case it exercises the same power; that is to say, the power of sovereignty, the power to govern men and things within the limits of its dominion. It is by virtue of this power that it legislates; and its authority to make regulations of commerce is as absolute as its power to pass health laws, except in so far as it has been restricted by the constitution of the United States.' 12  

Thus has this court from the early days affirmed that the power to promote the general welfare is inherent in government. Touching the matters committed to it by the Constitution the United States possesses the power,13 as do the states in their sovereign capacity touching all subjects jurisdiction of which is not surrendered to the federal government, as shown by the quotations above given. These correlative rights, that of the citizen to exercise exclusive dominion over property and freely to contract about his affairs, and that of the state to regulate the use of property and the conduct of business, are always in collision. No exercise of the private right can be [291 U.S. 502, 525]   imagined which will not in some respect, however slight, affect the public; no exercise of the legislative prerogative to regulate the conduct of the citizen which will not to some extent abridge his liberty or affect his property. But subject only to constitutional restraint the private right must yield to the public need.

[ Footnote 12 ] License Cases, 5 How. 504, 583.

[Nebia v. People of State of New York, 291 U.S. 502 (1934)]