Readings on the Relation of Government to Property and Industry

By Samuel P. Orth | Go to book overview

Justice Brown said in Holden vs. Hardy: "The constitution of the United States, which is necessarily and to a large extent inflexible and exceedingly difficult of amendment, should not be so construed as to deprive the States of the power so to amend their laws as to make them conform to the wishes of their citizens as they may deem best for the public welfare without bringing them into conflict with the supreme law of the land. . . . We concur in the following observations of the Supreme Court of Utah in this connection: '. . . Though reasonable doubts may exist as to the power of the legislature to pass a law, or as to whether the law is calculated or adapted to promote the health, safety or comfort of the people, or to secure good order, or promote the general welfare, we must resolve them in favor of the right of that department of the government.'"


THE POLICE POWER, A PRODUCT OF THE RULE OF REASON

BY THE HON. GEORGE W. WICKERSKAM, FORMER UNITED STATES ATTORNEY-GENERAL

(From the Harvard Law Review, February, 1914)

A well-known writer on the police power calls it "The law of overruling necessity,"1 and he adds:

The law of necessity has been stated to be an exception to all human ordinances and constitutions, yet has been frequently decided to be subject to the law of reason, and subject to the control of the courts.

It would be more accurate to say that the entire doctrine of the police power of the states is the creation of the courts, evolved from the necessity of harmonizing provisions of written constitutions of states and nation with the imperative needs of civilized society. It is the result of the application of the "rule of reason" in the construction of written constitutions. For the absence of exact definitions of such words as "to deprive," "liberty," "property," "due process of law," "equal protection of the laws," "privileges and immunities," and the like, in constitutions,2 left room for but one conclusion, to paraphrase the language of the Chief Justice in the Standard Oil Case,3 which is, that it was expressly designed not to unduly limit or extend the application of the constitution by precise definition, but, while fixing a standard, that is, by declaring the ulterior boundaries

____________________
1
Prentice W. P., The Police Power, p. 6
2
See Francis J. Swayze on the Fourteenth Amendment, 26Harv. L. Rev. I.
3
Standard Oil Co. vs. United States, 221 U.S. 1, 63.

-113-

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