other name because of its source does not indicate a real difference in the kind or quality of the power exercised. The greatest extension of the police power has come during the last five years, induced in part no doubt by a sentiment that would have supported the all but universal abandonment of legal limitations during the existence of the world war. The police power may be exercised wherever civil rights exist, but, as Professor Freund remarks, it must always justify itself in the face of constitutional limitations. In order properly to consider the subject let us recall briefly some of the fundamentals. God created man and endowed him with certain inalienable rights. In order to make these rights secure man created an instrumentality of his own called government. Whatever right or authority government possesses it derives from man. Government is man's creature, not his creator. In creating his government man has prescribed limits beyond which it may not go. We recall that the Declaration of Independence asserts that governments derive their just powers from the consent of the governed. Among the rights which we have always considered inalienable and which we have said to our governments shall not be invaded is the enjoyment of life, liberty and the pursuit of happiness. We have reduced these abstractions to concrete provisions which we refer to as constitutional guaranties. The general public policy which assumes a superiority of social over individual interests was made to yield by the framers of the federal Constitution, who held, in accordance with the Declaration of Independence, that the highest conception of the state insists upon the preservation of individual liberty. Sacredly preserving unto themselves in the new world the liberty which had been denied them in the old; safeguarding only those personal rights such as the freedom of speech and press, the right of assembly and petition, the right of property, the privilege of the writ of habeas corpus, the sanctity of contracts, the right to trial by jury and due process of law, the framers of the Constitution in clear, certain, unambiguous language entrenched these rights firmly above and beyond the reach of government and safeguarded them against diminution, even against invasion, by any act of government or any branch of government and said more loudly than the intonations of the cannon at Verdun, "Thou shalt not pass." case): Selective Draft Law Cases 245 U. S. 366; Hamilton v. Kentucky Distilleries Co. 251 U. S. 146-156-157. 7. Freund "Police Power," p. 3. The American system of jurisprudence which subjects legislation to judicial review, no more permits violation of constitutional restraints by the court than by the legislature. Government with the consent of the governed no longer exists when there is departure from this elementary principle. A study of the cases discloses that recent leading cases have departed radically from the course of reasoning of preceding cases and have in notable instances reduced the constitutional guaranties from impregnable bulwarks to permissive barriers. Laws impairing the obligation of contract were among the first to come into the arena against civil liberty. The Dartmouth College case had affirmed the doctrine of corporate inviolability. In his opinion in that case Chief Justice Marshall recognized the police power as the only limitation upon that doctrine. Through scores of years the police power has become firmly intrenched as sovereign; a contract with the state is a contract in name only; the state's police power can neither be abdicated nor bargained away; it is inalienable even by express grant; and all contract and property rights are held subject to its fair exercise." Likewise private contracts are not effective against the exercise of police power affecting the rights or duties of either contracting party. . In closing his review of this line of cases a commentator1o says: "The only protection that is left to vested rights is found in the court's review of the reasonableness of legislation. The decisions mentioned cover a hundred years-at one end we have the Dartmouth College case (4 Wheat. 518) declaring for corporate inviolability; at the other the Union Dry Goods Co. v. Georgia Public Service Corporation (248 U. S. 372) making the 'Obligation of Contract' almost subservient to that vast state power, the police power. The various acts by which the cited cases arose are not materially different, the interpretation has changed. It would seem that those who hold that the Supreme Court is, in the final analysis, a law-making body, are correct." Acts of Congress and the state legislatures and decisions of the federal courts for decades gradually extended the power of government in the main with due regard for the rights of citizens under the Fifth and Fourteenth Amendments. In the Slaughter House cases," by holding that the only privileges and immunities protected from state action by the Fourteenth Amendment were 8. (1819) 4 Wheat. 518. 9. Atlantic Coast Line R. Co. v. Goldsboro 232 U. S. 548. those derived from national citizenship (not those derived from state citizenship) and that no privilege or immunity of national citizenship was there involved, the court upheld a state statute granting a monopoly in New Orleans to a corporation to slaughter animals for food. The historic case of Munn v. Illinois12 gave great impetus to state regulatory enactments and though its principles are still in dispute it expresses the almost universally accepted doctrine of the present time. During the past twenty years city zoning plans have been inaugurated in this country. New York and many other cities have recently passed zoning ordinances. The cases involving their validity indicate that they are upheld by virtue of the police power. This legislation may be unobjectionable even though sustained at the expense of private rights. The City of Minneapolis passed an ordinance forbidding the erection of apartment buildings in certain residential portions of the city. The Supreme Court of the state upheld the ordinance as a proper exercise of police power.13 This is the first known case in which the police power has been upheld when exercised merely for aesthetic reasons. However, the Supreme Court of the United States, in St. Louis Poster Advertising Co. v. City of St. Louis,1 gives special consideration to the aesthetic reasons for the enactment of the bill board ordinance of the City of St. Louis and intimates that they have weight in upholding the ordinance. An Indiana statute of 1920 is fairly indicative of the extent to which government is nowadays injecting itself into business in disregard of constitutional rights. The act provides for the creation of a Coal and Food Commission and the licensing of all producers of or dealers in coal; authorizes the fixing of the price of coal; the compulsory production of coal; and the issuance of priority orders as among the various classes of users of coal within the State of Indiana. Kansas, too, is even more progressive than in the days of Pfeffer and the sockless Simpson. On January 24, 1920, the Kansas Court of Industrial Relations was created by Act of the state legislature. It declares that food and provisions, clothing, the mining or production of fuel, the transportation of the above three classes, public utilities and common carriers are "determined and declared to be affected with a public interest." The Industrial Court is given full power, authority and jurisdiction to supervise, direct, and control the operation of such industries. This act was declared constitutional by the Supreme Court of the State of Kansas. On appeal to the Supreme Court of the United States the Supreme Court of the State of Kansas was affirmed, but the constitutional question was not passed upon. The climax of the sovereignty of creature over creator is reached in the rent statutes, upon which were based cases decided by the Supreme Court.15 The Block case involved the power of Congress to declare the letting of buildings in the District of Columbia invested with public interest. The Act was to remain in force two years unless sooner repealed. Despite Article I and the Fifth Amendment, Congress abrogated contracts of lease theretofore uniformly held to be private in character and gave the tenant the privilege of holding over after the expiration of his lease, subject to regulation by the commission to be appointed under the Act, so long as the tenant paid rent and performed the conditions fixed by the lease or as modified by the commission. The New York case involved a state statute and raised practically the identical questions presented in the District of Columbia case. These acts were sustained in the Supreme Court by five to four votes. The dissenting opinion was rendered by Mr. Justice McKenna, with whom concurred the Chief Justice, Mr. Justice Van Devanter, and Mr. Justice McReynolds. The grounds of dissent are the explicit provisions of the Constitution of the United States. Permitting "a lessee to continue in possession of leased premises after the expiration of his term, against the demand of his landlord, and in direct opposition to the covenants of the lease, is contrary to every conception of leases that the world has ever entertained. "Of what concern is it to the public health or the operations of the federal government as to who shall occupy a cellar and a room above it for business purposes in the City of Washington?" . . Justification of the statute is attempted by arguing that it supplies homes to the homeless. But Justice McKenna says: This "does not satisfy. If the statute keeps a tenant in, it keeps a tenant out; indeed, this is its assumption. The facts are significant and suggest the inquiry, Have conditions come not only to the District of Columbia, embarrassing the federal government, but to the world as well, that are not amenable to passing palliatives, and that socialism, or some form of socialism, is the only permanent corrective or accommodation? It is indeed strange that this court, in effect, is (1921) Block v. Hirsh 256 U. S. 135, and Marcus Brown Holding 15. Co. v. Feldman 256 U. S. 170. called upon to make way for it, and, through an instrument of a constitution based on personal rights, and the purposeful encouragement of individual incentive and energy, to declare legal a power exerted for their destruction. The inquiry occurs, Have we come to the realization of the observation that 'war, unless it be fought for liberty, is the most deadly enemy of liberty?' . . . There is not a contention made in this case that this court has not pronounced untenable." In a futile effort to discover the character of the power exercised, Mr. Justice McKenna inferentially concedes it to be the police power. He differentiates cases based upon the exercise of the police power and then says: Call it what you will-an exertion of police power or other power-nothing can absolve it from illegality. Limiting its duration to two years certainly cannot. It is what it does that is of concern. And as a power in government, if it exist at all, it is perennial and universal, and can give what duration it pleases to its exercise, whether for two years or for more than two years. The wonder comes to us, what will the country do with its new freedom? . . . For necessarily, if one contract can be disregarded in the public interest every contract can be." If the exercise of the police power of the states seems to have been encroaching upon constitutional limitations, the exercise of the same quality of power by whatever name it may be called, by the Congress of the United States under the commerce clause of the Constitution, is as freely indulged in and even more uniformly sustained. Indeed the police power of the states, broad as it has been shown to be, yields to power under the commerce clause.16 The most celebrated of all of that class of federal statutes is the Adamson law considered in Wilson v. New. This case involved the power of Congress to establish an eight-hour day for employees of interstate carriers. It resulted in another five to four decision. It required five written opinions to express the views of the court, two for the majority and three for the minority. The court specifically held that the effect of the Act was not only to establish an eight-hour standard for work and wages, but also to fix a scale of minimum wages, and in that extreme view-point sustained the law. The limited period during which the Act was to be enforced seemed, in the opinion of the majority of the court, to justify over-riding the constitutional considerations involved. In other words, the 16. Erie R. Co. v. New York 233 U. S. 671; Shreveport Rate Case 234 U. S. 342. 17. 243 U. S. 332. |