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§ 3. Construction of constitutional limitations.But although these fundamental principles of natural right and justice cannot, in themselves, furnish any legal restrictions upon the governmental exercise of police power, in the absence of express or implied constitutional limitations, yet they play an important part in determining the exact scope and extent of the constitutional limitations. Wherever by reasonable construction the constitutional limitation can be made to avoid an unrighteous exercise of police power, that construction will be upheld, notwith

standing the strict letter of the constitution does not proWhibit the exercise of such a power. The unwritten law of this country is in the main against the exercise of police power, and the restrictions and burdens, imposed upon persons and private property by police regulations, are jealously watched and scrutinized. " The main guaranty of private rights against unjust legislation is found in that memorable clause in the bill of rights, that no man shall be deprived of life, liberty or property, without due process of law. This guaranty is not construed in any narrow or technical sense.

The right to life may be invaded without its destruction. One may be deprived of his liberty in a constitutional sense without putting his person in confinement. Property may be taken without manual interference therewith, or its physical destruction. The right to life includes the right of the individual to his body in its completeness and without its dismemberment, the right to liberty, the right to exercise his faculties and to follow a lawful avocation for the support of life, the right of property, the right to acquire property and enjoy it in any way consistent with the equal rights of others and the just exactions and demands of the State.”! In searching for constitutional restrictions upon police power, not only may resort be had to those plain, exact and explicit provisions

1 Bertholf v. O'Reilly, 74 N. Y. 509.



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of the constitution, but those general clauses, which have acquired the name of “ glittering generalities,” may also be appealed to as containing the germ of constitutional limitation, at least in those cases in which there is a clearly unjustifiable violation of private right. Thus, almost all of the State constitutions have, incorporated in their bills of rights, the clause of the American Declaration of Independence that all men endowed by their Creator with certain inalienable rights; that among these are life, liberty and the pursuit of happiness.” If, for example, a law should be enacted, which prohibited the prosecution of some employment which did not involve the infliction of injury upon others, or which restricts the liberty of the citizen unnecessarily, and in such a manner that it did not violate any specific provision of the constitution, it may be held invalid, because in the one case it interfered with the inalienable right of property, and in the other case it infringed upon the natural right to life and liberty. “ There is living power enough in those abstractions of the State constitutions, which have heretofore been regarded as mere · glittering generalities,' to enable the courts to enforce them against the enactments of the Legislature, and thus declare that all men are not only created free and equal, but remain so, and may enjoy life and pursue happiness in their own way, provided they do not interfere with the freedom of other men in the pursuit of the same objects.” 1 This is a novel doctrine, and one which perhaps is as liable


1 Judge Redfield's annotation to People v. Turner, 55 Ill. 280; 10 Am. Law Reg. (n. s.) 372. At a very early day, before the adoption of the present constitution of the United States, it was judicially decided in Massachusetts that slavery was abolished in that State by a provision of the State constitution, which declared that “all men are born free and equal, and have certain natural, essential and inalienable rights,” etc. This clause was held to be inconsistent with the status of slavery, and therefore impliedly emancipated every slave in Massachusetts. See Draper, Civil War in America, vol. I., p. 317; Bancroft, Hist. of U. S. vol. x., p. 365; Cooley Principles of Const., p. 213.


to give rise to dangerous encroachments by the judiciary upon the sphere and powers of the legislature, as the doctrine that a law is invalid which violates abstract principles of justice. If it be recognized as an established rule of constitutional law, it must certainly be confined in its application to clear cases of natural injustice. Wherever there

. is any doubt as to the legitimate character of legislation, it should be solved in favor of the power of the Legislature to make the enactment. In all cases the courts should proceed with caution in the enforcement of this most elastic constitutional provision.

While we find a tendency in one direction to stretch the constitutional restrictions over a great many cases of legislation, which would not fall within the strict letter of the constitution, in order that due force and effect may be given to the fundamental principles of free government; on the other hand, where the letter of the constitution would prohibit police regulations, which by all the principles of constitutional government have been recognized as beneficent and permissible restrictions upon the individual liberty of action, such regulations will be upheld by the courts, on the ground that the framers of the constitution could not possibly have intended to deprive the government of so salutary a power, and hence the spirit of the constitution permits such legislation, although a strict construction of the letter may prohibit. But in such a case the regulation must fall within the enforcement of the legal maxim, sicutere tuo, ut alienum non lædas. “ Powers which can only be justified on this specific ground (that they are police regulations) and which would otherwise be clearly prohibited by the constitution, can be such only as are so clearly necessary to the safety, comfort and well-being of society, or so imperatively required by the public necessity, as to lead to the rational and satisfactory conclusion that the framers of the constitution could not, as men of ordinary prudence and foresight, have intended to prohibit their exercise in the particular case, notwithstanding the language of the prohibition would otherwise include it."i And in all such cases it is the duty of the courts to determine whether the regulation is a reasonable exercise of a power, which is generally prohibited by the constitution. “ It is the province of the law-making power to determine when the exigency exists for calling into exercise the police power of the State, but what are the subjects of its exercise is clearly a judicial

question.” 2

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§ 4. The principal constitutional limitations. — The

principal constitutional limitations, which are designed to protect private rights against the arbitrary exercise of governmental power, and which therefore operate to limit and restrain the exercise of police power, are the following:

1. No bill of attainder or ex post facto law shall be passed by the United States, or by the States."

2. No State shall pass any law impairing the obligation of a contract.

3. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

4. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.?

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9 1 Christiancy, J., in People v. Jackson and Mich. Plank Road Co., Mich. 285.

* Lake View o. Rose Hill Cemetery, 70 III. 192.
* U. S. Const., art. I., $ 9.
* U. S. Const., art. I., $ 10.
• U.S. Const., art. I., $ 10.
• U.S. Const. Amend., Art. VIII.
' U.S. Const. Amend., art. IV.

5. No soldier shall, in time of peace, be quartered in any house without the consent of the owner; nor in time of war, but in a manner to be prescribed by law.!

6. The right of the people to keep and bear arms shall not be infringed."

7. Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people, peaceably to assemble, and to petition the government for a redress of grievances.”

8. No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.4

9. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him ; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.5

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