Readings on the Relation of Government to Property and Industry

By Samuel P. Orth | Go to book overview

III
THE POLICE POWER

WHAT IS THE POLICE POWER?

By WALTER WHEELER COOK, OF THE UNIVERSITY OF WISCONSIN

(From the Columbia Law Review, May, 1907)

Nearly all of the legislation regulating industry finds its sanction in that elastic, indefinable power called the "police power." Hence, any study of the relation of government to industry must pivot on an understanding of the police power and how federal and state courts interpret it. -- EDITOR'S NOTE.

No phrase is more frequently used and at the same time less understood than the one which forms the subject of the present discussion. It is a common thing for our courts to say that the police power does not admit of an exact definition, yet only a few of those who make the remark appear to understand clearly why this should be so. As the eminent holder of the Roosevelt Professorship in Berlin has so well said:

The police power is the dark continent of our jurisprudence. It is the convenient repository of everything for which our juristic classification can find no other place.1

* * * * * * *

As a convenient method of approaching our subject, let us examine briefly the definitions or descriptions given by two or three writers who have studied the problem with a considerable degree of thoroughness. The author whose words have already been quoted, after showing the apparent confusion of the Supreme Court of the United States upon the question, begins with the derivation of the words from the Greek and traces their introduction into the political science of modern Europe and their history since, and concludes by stating what he conceives to be the most recent view of political science upon the scope of the police power, closing as follows:

____________________
1
Burgess, Political Science and Comparative Constitutional Law, Vol. II, p. 136.

-103-

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