Black's Law Dictionary, Sixth edition, p. 1156:
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]
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)"
Diego Gas & Electric Co. v. City of San Diego, 450 U.S. 621 (1981)]
"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]
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.
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
'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
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.
See also Lottery Case (Champion v. Ames)
188 U.S. 321 , 47 L. ed. 492, 23 Sup. Ct. Rep. 321.
v. United States, 213 U.S. 138 (1909)]
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
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
[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.
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
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
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.
282 U.S. 765, 776 (1931).
"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)."
CORP. et al. v. IOWA UTILITIES
BOARD et al., 525 U.S. 366 (1999)]
"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.
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.
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
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."
v. Hardin, 135 U.S. 100 (1890)]
"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,
[State of Wisconsin v. Pelican Insurance Company, 127 U.S. 265 (1888)]
"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)]
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)]
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.'
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.
12 ] License Cases, 5 How. 504, 583.
v. People of State of New York, 291 U.S. 502 (1934)]