The “Police Power” of the States.

In every work on the Constitution of the United States, we find reference to the “police power” of the States.

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In the Mayor of New York v. Miln note the Supreme Court described the powers “which relate to merely municipal legislation, or what may perhaps more properly be called internal police,” in the following terms: “We should say that every law came within this description which concerned the welfare of the whole people of a State or any individual within it; whether it related to their rights or their duties; whether it respected them as men or as citizens of the State; whether in their public or private relations; whether it related to the rights of persons or of property, of the whole people of a State or of any individual within it; and whose operation was within the territorial limits of the State, and upon the persons and things within its jurisdiction.” A later decision, having a closer relation to the modern idea of the functions of government, describes it as the 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.”note

At its broadest, the police power is nothing other than the residuary power of government in the State, and, as such, is hardly capable of exact definition. But it has more restricted used, as where it is distinguished from the taxing power, or power over commerce; and the many attempts that have been made by the Courts to describe if not define it, vary according to the matter in hand and the practical distinction to be emphasised. It has in fact become the “dark continent” of American jurisprudence.note Sometimes it is used in discussions of the limits of the power of the States Legislatures, considered merely in relation to the distribution of power between legislative, executive, and judicial authorities.note Sometimes it is used

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in considering the power of the States Legislatures, as affected by the prohibitions and restrictions, either of the State Constitutions, or the Constitution of the United States.note The Constitutions contain certain guarantees against the interference of the States with private rights: it is held, that such restrictions are to be read consistently with the police power, and that the State is not deprived of its discretionary power to regulate good morals, promote health, and preserve order, though in so doing it may incidentally deteriorate property or diminish profits arising out of a contract. So, though Congress has made patent laws, the State may, as a matter of police, prohibit or regulate the sale of the patent article in the State.note Again, though the admission of subjects or citizens of other nations to American shores is a matter which can be regulated by Congress alone, it may be that a State can protect itself by appropriate legislation against paupers and convicted criminals from abroad.note

So far as concerns the Federal Constitution, the police power has been important mainly in relation to its conflict with the power of Congress over foreign and inter-State commerce. The Courts have declared the commerce power of Congress to be partly exclusive of, partly concurrent with, the power of the States. The exclusive power of Congress over foreign and inter-State commerce is mitigated by the doctrine, that, in the absence of legislation by Congress, the State may affect such commerce by their laws and police. Inspection laws, health laws, quarantine laws, the introduction of impure and adulterated foods or of diseased cattle, are the most conspicuous illustrations of laws of this class.note

As has been pointed out in chapter viii., a law may have more than one aspect. “All experience shows

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that the same measure or measures, scarcely distinguishable from each other, may flow from distinct powers, but that does not show that the powers themselves are identical.”note Public health is eminently a matter of police and for the States; foreign commerce belongs to Congress; and a quarantine law is a legitimate exercise of either power. If each authority has made a law upon the subject, and there is a collision between them, the law of Congress must prevail.note On the other hand, there has been a tendency on the part of Congress to enact laws, purporting to be in pursuance of its commerce power, but affecting matters, which have not become, or which have ceased to be, subjects of foreign or inter-State commerce. Such Acts, whether they affect the internal commerce of a State or deal with matters which are not the subjects of commerce at all, are an invasion of the exclusive powers of the State, and are ultra vires. It has been determined by a large number of cases, that the police power is an exclusive power in the States, and that there is no substantive police power in Congress. The powers of Congress are limited by enumeration, and the extent of the enumerated powers themselves must be defined by a regard to the fact, that the Constitution leaves with the States the general power to protect the lives, health, and property of the citizens, to preserve good order and the public morals. This doctrine has received its most striking and practical application in the restrictive interpretation, put by the Courts, on the prohibition imposed upon the States, and the powers conferred upon Congress, by the Fourteenth and Fifteenth Amendments of the Constitution adopted at the close of the Civil War.note

The frame of the Commonwealth Constitution is the Constitution of the United States; and it remains to

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consider how far the American discussions as to the nature and extent of police power affect the States in Australia. The powers of the States Parliaments in Australia are limited at fewer points than those of the States Legislatures in America; the “police power” is subject to fewer limitations. The questions that have arisen in the United States under the State Constitutions cannot at present arise, for the States Parliaments enjoy plenary powers unlimited by a distribution of powers among the legislative, executive, and judicial organs, or by express restriction. The States Parliaments indeed enjoy a position of independence unknown to the States Legislatures in the United States, or to the Provincial Parliaments in Canada. The powers of the former have been controlled by that jealousy and distrust of government, which has been a characteristic of American constitutional history. The power of the Provincial Parliaments in Canada is limited by the fact, that they have enumerated powers merely, and that the Dominion Executive exercises supervision over them. So far as the Commonwealth Constitution is concerned, the restriction upon State action, imposed by the U.S. Constitution in the interests of individual liberty, are, with one exception (sec. 117), absent. On the other hand, the Commonwealth Constitution leaves room for the conflict of the police power with commerce. The question in the Commonwealth will turn, not upon any “exclusive” power of the Commonwealth Parliament implied by the Courts, but upon the prohibitions of section 92. Some of the ambiguities of that section have been already referred to;note but it raises also questions similar to those which have arisen in America out of the exclusive power of Congress. In the United States, it has been held, that “in conferring upon Congress the regulation of commerce, it was never intended to cut off the States from legislating upon all subjects relating to the health, life, and safety of their citizens, though the legislation might indirectly affect the commerce of the country,note and the strictest interpretation of the police

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power has conceded, that a State may pass sanitary laws, may prevent persons or animals suffering under contagious or infectious diseases from entering the State, and for the purpose of self-protection may establish quarantine and reasonable inspection laws.note Further, “a State may prevent the introduction into the State of articles of trade, which, on account of their existing condition, would bring in and spread disease, pestilence, and death, such as rags or other substances infected with the germs of yellow fever, or the virus of smallpox, or cattle or meat or other provisions that are diseased or decayed, or otherwise from their condition or quality unfit for human use or consumption.”note It can hardly be doubted that the like powers are exerciseable by the States in the Commonwealth, and that a bonafide exercise of such powers is not an infringement of the freedom of trade, commerce, and intercourse under § 92. The case becomes more difficult, when we come to measures for the protection of the moral health of the community. The introduction of intoxicating liquids has given rise to constitutional difficulties both in the United States and Canada. In Leisy v. Hardin the Supreme Court of the United States held, that a statute of Iowa, prohibiting the transportation by a common carrier of intoxicating liquor from a point within any other State for delivery at a place within Iowa, was a restriction of Inter-State commerce, and therefore ultra vires, though in the opinion of the Court, as it might fairly be said that the provision in question had been adopted, “not expressly for the purpose of regulating commerce between its citizens and those of other States, but as subservient to the general design of protecting the morals and health of its people, and the peace and good order of the State, against the physical and moral evils arising from the unrestricted manufacture and sale within the State of intoxicating liquors.” In the Commonwealth

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Constitution, this particular matter is provided for favourably to the power of the State, by § 113, whereby “all fermented, distilled, or other intoxicating liquids passing into any State or remaining therein for use, consumption, sale, or storage, shall be subject to the laws of the States as if such liquids had been produced in the State.” That the State may, as a precautionary measure against social evils, exclude convicts, harlots, paupers, idiots, and lunatics, is now generally admitted in the United States. But as the measure is one of self-defence, arising only from vital necessity for its exercise, it must not be carried beyond the scope of that necessity.note This necessity can hardly be said to exist in respect to the entrance of Asiatics or to the admission of illiterate persons, the cloak under which laws regulating the admission of aliens are commonly hidden. A Victorian law, prohibiting the admission of Chinese from New South Wales, unquestionably restricts freedom of intercourse among the States, which is prima facie contrary to section 92. It would seem that, though such a law is genuinely aimed at preserving the peace and good order and the moral health of the State, in such matters the Court must take “short views” of policy, and must hold it to be void by reason of its immediate purpose.note

While the domestic order of the States is a matter for the States themselves, they are, like the States in America, entitled to call on the Federal Government for protection against “domestic violence”; and against “invasion” the Federal Government is bound to protect them without any request (sec. 119). But it is not to be forgotten, that in the United States it has been laid down, that there is a “peace of the United States,”note which enables the Federal Government to take all steps which it may think fit, and which its courts may support, to protect the instruments and agencies of the Government,

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and to secure the due observance of its laws. In the Commonwealth, the terms, which grant its powers to the Parliament, enable it to make laws for the “peace, order, and good government of the Commonwealth” in respect to the matters committed to it, and it is safe to infer that it will have powers at least as extensive as those of the Federal Government in the United States. The functions of the Commonwealth Government are so far-reaching and its agencies and instrumentalities so many, that internal disorders on any large scale could hardly leave the peace, order, and good government of the Commonwealth unaffected in regard to them. In such a case the Commonwealth Government would intervene upon its own initiative.