POLICE POWER OF THE STATE1

Police power is the sovereign power to promote and protect the general
welfare. It is the most pervasive and the least limitable of the three powers
of the state, the most essential, consistent and illimitable which enables the
State to prohibit all hurtful things to the comfort, safety and welfare of the
society.
It also refers to the power vested in the legislature by the Constitution to
make, ordain, establish all manner of wholesome and reasonable laws,
statutes, or ordinances, either with penalties, or without, nor repugnant to
the constitution, as they shall be judge to be for the good and welfare of the
state and the subjects.
Police power is an inherent attribute of sovereignty. It can exist even without
reservation in the constitution. It is based on necessity as without it, there
can be no effective government. It is also referred to as the law of
overwhelming necessity.
The exercise of police power is founded on the basic principles of
saluspopuliestsupremalex (the welfare of the people is the supreme law) and
sic uteretu et alienum non laedas (so use your property so as not to impair
another).
The basic purposes of Police Power are to serve the general welfare, comfort
and convenience of the people, promote and preserve public health, promote
and protect public safety, maintain and safeguard public order,protect public
morals; andpromote the economic security of the people.
The legal principles employed to sustain state public health police power
were sic uteretuoutalterum non laedas (use that which is yours so as not to
injure others) and saluspublicasupremalexest (public well-being is the
supreme law).2 The principle of sic utere describes the power of the state to
1 NEEDI.K.DINAMANY, 4TH SEMESTER, LLM, SCHOOL OF LEGAL STUDIES, CUSAT,
KERALA.
2Gostin LO, Burris S, Lazzarini Z. , The law and the public's health: a study of infectious disease law in
the United States, Vol.99, Colum L Rev.(1999),pp.59128.

prevent or prohibit the use of private property or the commission of private

acts in a manner harmful to others. The principle of saluspublica, on the
other hand, recognizes police power as a means to prevent or avoid public
harm even if the action has not harmed others.3 While
the saluspublica doctrine implied a more extensive exercise of police powers,
state actions allowable under its aegis were, generally speaking, under the
discretion of the state legislature,4and limited only by infractions to an
express constitutional right or by actions opposite to the principles of
representative government.
The principles of sic utere and saluspublica remained virtually unchanged by
subsequent legal developments. This includes the pro-business
interpretations of the Fourteenth Amendment that rapidly evolved into a
barrier against regulation of private concerns.The courts and legislatures
continued to uphold public health activities necessary for the defense of the
common good despite their disinclination to regulate private businesses and
property.5
Sic uteretuoutalienum non laedas6
At the basis of the police power, is this common lawmaxim enjoining one to
use his property in such a way as not to injurethat of another. This use of the
maxim in connection with the police power furnishessome very interesting
speculation on the attitude of the UnitedStates Supreme Court toward that
very important concept of ConstitutionalLaw. If the police power is to be
interpreted as the powerto regulate men and things or the power to protect
the public health,safety, morals and the general welfare, it is obvious that
the meaningof the maxim, if it is to be used in support of this power at all,
mustbe expanded by interpretation. This is exactly what has happened
andbecause of the nature of the maxim the expansion was very
easilybrought about.
3Reynolds GH, Kopel DB.,The evolving police power: some observations for a new century, Hastings
Constitutional Law Quarterly,(2000), pp.51137.
4Berman v. Parker, 348 US 26, 32 (1954)
5http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2569983/, visited on 7/11/2015
6Elmer E. Smead,Sic UtereTuoUtAlienum Non Laedas A Basis of the State Police Power, Vol. 21
,Cornell Law Review, (1936), pp.276-292.

The court has used the maxim as an instrument for support of thepolice
power. 'Thus in no case where state Acts were declared invalidas improper
exercises of the police power, was the maxim used as ameans of so holding;
i. e. in no case were such measures held void asbeing violations of this
common law maxim. Also, the court frequentlydeclared that the maxim is at
the basis of the police power and thatthis power of the states exists to give
effect to the maxim. In theSlaughter House Cases7, for example, the attitude
of the court was oneof explaining to the defeated parties that slaughter
houses in populoussections had long been considered nuisances, that they
should nothave expected a statute which declared this common law rule to
beheld unconstitutional, and that they were not really being deprived ofany
rights because they had no right to commit this public nuisanceprior to the
enactment of the statute. Thus it would seem, the courtthought, that the
state Act simply prohibited certain action whichthe common law maxim
already prohibited.
It is submitted, however, that an analysis of these cases and thelogical result
to which this use of the maxim leads is that the maximis really, by
implication, a leash or limitation on the state policepower. In the first place,
in those cases in which the maxim is usedthe court is influenced by its belief
that the acts which are beingforbidden or regulated are injurious to another
person or corporation,or to the public, and the maxim is interpreted as
forbidding such injuries.Furthermore, the very fact that the court has
frequentlystated in the cases discussed above that the maxim is at the basis
ofthe police power and that that power of the state legislatures is a means of
giving efficacy to the maxim implies that a statute wouldnot be a valid
exercise of the police power unless it could be shownthat the acts which the
statute regulated or prohibited could also beheld to be regulated or
prohibited by the maxim. The implication isthat the police power cannot be
extended to any statutory regulationto which the maxim cannot be applied
by the court.
The police power is broad and in its exercise the rights of the individualor the
corporation may be curtailed. Consequently, the courtthought that this
power ought to be kept within bounds and it feltthe need of an instrument
whereby it could control this power of thestate legislatures. The case of
Munn v. Illinois,8shows this well. Thatcase brought about a great expansion of
747I6 Wall.36 (1872).
894 U. S. 113 (1876).

the police power and, whilethe example of the Sovereignty of the English
Parliament influencedthe court greatly, yet it was reluctant to recognize an
unlimited powerin the state legislatures. At this time, the due process clause
of theFourteenth Amendment had not yet been developed as a limitation
onthe state police power. That the court felt the need of a check,
however,and viewed the maxim as satisfying this need, seems clear. Since
thattime, the due process clause has been developed into an effective
constitutionalcheck, and this is the principle reason why the court hasnever
expressly used the maxim in that way. Thus, this common lawmaxim has
served as an instrument for supporting the validity ofpolice measures and for
defining the nature and scope of the statepolice power. At the same time, the
very way in which the maxim hasbeen used implies that it is also an
instrument of control and, assuch, it is one which the court may use with
considerable latitude becauseof its indefiniteness and variability of content.
Thus has the maxim grown and developed.Originally applied onlyto those
cases where the defendant had been doing something on hisown property
which the common law courts held was injurious to theproperty of others, it
was ultimately used by the Supreme Court ofthe United States in the
exercise of its right of review over the policepower of the states.
The effect of police power on the rightsof property is generally conceded that
all property isheld subject to the general police power of the state so
toregulate and control its use in a proper case as to securethe general
safety, the public welfare, and the peace, goodorder and morals of the
community.9This principle emanatesfrom the maxim sic
uteretuoutalienumnon laedasandto effect its purpose the legislature under
the police powermay pass laws regulating the acquisition enjoyment,
anddisposition of property,10even though in some respectsthese may operate
as a restraint on individual freedom orthe use of private
property.11Accordingly it has been heldthat statutes and ordinances requiring
the removal or destructionof property or the isolation of infected
personswhen necessary for the protection of the public health donot violate
the Constitutional guarantee of the right of enjoymentof liberty and property
9People v. Smith, 108 Mich. 527.
10Cincinnati I. & W. R. Co.v. Connersville, 170 Ind. 816.
11Booth v. People, 186 Ill. 48.

because neither the rightto liberty nor the right to property extends to the
use ofliberty or property to the injury of others.12
Eminent domain and Police power13
Police regulations are not a taking under the right ofeminent domain or a
deprivation of property without dueprocess of law and so are not
unconstitutional although theymay interfere with private rights without
providing forcompensation. Whenever the use and enjoymentof property by
the owner is regulated by the policepower or if he is deprived of his property
altogether, it isnot taken for public use but rather destroyed in order
toconserve the safety, morals, health, or general welfare ofthe public, and in
neither case is the owner entitled to compensationfor the law either regards
his loss as daminumabsqueinjuria, or considers him sufficiently
compensatedby sharing in the general benefits resulting from the exerciseof
this power.14 Such regulations must however bereasonable, and the
legislature cannot under the guise ofpolice regulations arbitrarily invade
private property orpersonal rights, the test being found in the answer to
thequestion whether the regulations made have some real andsubstantial
relation to the public safety, health or welfare,and whether that is the end
sought. If not, the alleged policeregulation is unreasonable and may be held
void. It isfor the legislature to determine what regulations are properbut it is
for the courts to determine whether the exercise isreasonable and if it tends
to promote the object of the policepower.15
In comparing the power of eminent domain with thatof police power ,they
resemble each other inthat each power recognizes the superior right of the
communityagainst the selfishness of the individual, the formerdepriving him
of the right to obstruct the public necessityand convenience by obstinately
refusing to part with hisproperty when needed for public use, the latter
preventinghis use of his own property in his own way as against thegeneral
12Kirk v. Wyman, 83 So. Carolina 872.
13T. D. Havran, Eminent Domain and the Police Power, Vol 5, Notre Dame L.aw Review, (1930),
pp.380-384.
14Commonwealth v. Plymouth Coal Co., 282, Penn. 141.

15People v. Winner, 271 IIl. 74.

comfort and protection of the public.16 The distinctionhowever lies in the fact
that in eminent domain thepublic welfare is promotedbythe actual taking of
theproperty or some right therein from the owner and transferringit to a
public agency to be enjoyed by it as its own,whereas in police power the
public is benefited merely bythe regulation and restriction of the use of the
property.In the exercise of the former right private property is takenfor public
use invariably entitling the owner to compensation therefore, while police
power is usually exerted merelyto regulate the use and enjoyment of
property of the owner,or if he is deprived outright it is not taken for public
usebut rather destroyed in order to promote the general welfareof the public
and in neither case is the owner entitled tocompensation.17The test is
whether property is condemnedto promote an affirmative public undertaking
or, in otherwords, to confer an added benefit to the public; or whetherto
prevent harm to an established public interest, a deprivationof property is
necessary either in the form of impositionof expense, or of the actual taking
or destruction of propertywhich participates in causing a public detriment. 18
AsC. J. Agnew has said, "these distinctions clearly mark thecases distant
from the border line between the two powers,but in or near to it they begin
to fade into each other andit is difficult to say when compensation becomes
a duty andwhen not.
POLICE POWER IN USA19
The doctrine of state police power was adopted in early colonial America
from firmly established English common law principles mandating the
limitation of private rights when needed for the preservation of the common
good. It was one of the powers reserved by the states with the adoption of
the federal Constitution and was limited only by the Constitution's
Supremacy Clausewhich mandates preeminence of federal law in matters
delegated to the federal governmentand the individual rights protected in
16The People v. The Town of Salem, 20 Micb. 452.
17City of Belleville v. St. Clair County Turnpike Co., 234 I1. 428.

18Philadelphia v. Scott, 81 Penn. St. 80. 85.

19Collins Denny, The Growth and Development of the Police Power of the State, Vol. 20, No. 2,
Michigan Law Review, (Dec., 1921), pp. 173-214

the subsequent Amendments.20 The application of police power has

traditionally implied a capacity to (1) promote the public health, morals, or
safety, and the general well-being of the community; (2) enact and enforce
laws for the promotion of the general welfare; (3) regulate private rights in
the public interest; and (4) extend measures to all great public needs.
The application of police powers is not synonymous with criminal
enforcement procedures; rather, this authority establishes the means by
which communities may enforce civil self-protection rules. More specifically,
public health police power allows the states to pass and enforce isolation and
quarantine, health, and inspection laws to interrupt or prevent the spread of
disease. Historically, the exercise of public health police power was enforced
with strong support of the courts and restraint of police power occurred only
when there was open disregard for individual rights.
The abilities of states to exercise their police powers has been constrained
since the 1960s by the legal and social reexamination of the balance of
power between the individual, the states, and the federal government, which
affects contemporary efforts to reform public health law in the face of
terrorism.
The idea of the police power is very clearly found in the FEDERALIST No. 39
"In this relation (operation of the government) the proposed government
cannot be deemed a national one, since its jurisdiction extends to certain
enumerated objects only, and leaves to the states a residuary and inviolable
sovereignty over all other objects.
In Brown v. Maryland21,J.Marshall held that, The power to direct the removal
of gunpowder is a branchof the police power which unquestionably remains
and oughtto remain with the states."
InMoore v. Illinois22came up in 1852, a law providing that no one should
harbor a slave or prevent the master from retaking him was upheld as being
a "regulation for the restraint and punishment of crime, for the preservation
of the health and morals and the public peace."
20City of New York v. Miln, 36 U.S. (11 Pet.) 102, 9 L.Ed. 648 (1837)
21I2 Wheat. 419.
22I4 How. I3.

The great controlling power of the national government over thepeople is

exercised through the grant of commercial power that ofthe states is
exercised by the police power. While the court triesto ascribe separate fields
to each, the attempt has never been successfuland the two are continually
coming into conflict.
In 1893 case Crown v. Gilberts, the court held that the state police power is
that every man must hold his property and conduct his life to a reasonable
extent interest for the benefit of the public and that trust, if reasonable may
be enforced by the legislature by appropriate legislation passed under its
general police power.
In Commonwealth v. Alger23, Justice Shaw decided that the law was a valid
exercise of the police power, and in this connection he said: "We think it is a
settled principle, growing out of the nature of well-ordered society, that
every holder of property, however absolute and unqualified may be his title,
holds it under the implied liability that his use of it may be so regulated that
it shall not be injurious to the equal enjoyment of others having an equal
right to the enjoyment of their property, nor injurious to the rights of the
community. The power we allude to is rather the police power, the power
vested in the legislature by the Constitution, to make laws not repugnant to
the Constitution as they shall judge to be for the good and welfare of the
commonwealth and of the subjects of the same."
In Munnv. Illinois24, the question at issue here was whether or not thestate
legislature might regulate the maximum charges for storageof grain in cities.
It was argued that such a law deprived the ownersof their property and
denied to them 'the equal protection of thelaws.' This case is of particular
interest because in it Chief JusticeWaite gives to the police power an
historical definition. He arguedthat the principles of the Fourteenth
Amendment are as old MagnaCharta and form a part of all state
constitutions; that the statelegislatures possess the supremacy of Parliament
in so far as theyare not limited by the Constitution, and such regulations are
notwithin the limitations.Two main principles were laid down in thiscase: the
legislature of a state may, through its police power, regulatethe charges of a
business affecting public interest; and the questionof the reasonableness of

23417 Cush.(Mass.) 53 (1851).

2494 U.S. 113.

these rates is one for the legislatureto decide. This leaves to the Supreme
Court the question of whetherthe business is public in nature.
In Mugler v. Kansas25, decided that when the value of property was injured
through a lawful exerciseof the police power the damage was merely
consequential. Two propositions were made clear: (I) that by the Fourteenth
Amendment a state had lost none of its police power; (2) prohibiting or
otherwise regulating liquor in the state is a valid exercise of thepolice power.
Earlier police power was considered as the extent of sovereign power of the
state and it includes the concept of eminent domain, taxation and
administration of justice. Later on the extent of police power was widened
and it includes public health, morality and safety of the general public.
POLICE POWERS IN INDIA
In ChiranjithLalChowdhuriv. Union of India26, Justice B.K.Mukherjee observed
that the importing of expressions like police power which is a term of
variable and indefinite connotation in American law, can only make the task
of interpretation more difficult.
In State of West Bengal v.SubodhGopal Bose27,Chief Justice Shastri concluded
that the doctrine of police power was contrary to our Constitutional scheme.
It was incorrect to interpret Article 31(1) as conferring police power on the
legislature in relation to the right of property.
Our Constitution guarantees the right to carry on business. Reasonable
restrictions can be imposed to curtail this right on the ground mentioned
under Article 19(6). When the right and its extent are clearly spelt out in the
Constitution, there is no necessity to rely on a vague and unwritten doctrine
of police power to define the scope of this right.28

25 123 U.S. 623

26 AIR 1951 SC 41
27AIR 1954 SC 92
28http://www.manupatra.co.in/newsline/articles/Upload/8DE9E7DE-8DDA-48FE-96821C0F0B185AF3.pdf visited on 8/11/2015

Despite the decisive rejection of the theory of police power in SubodhGopal

Case29,this power has been relied on in a number of cases.
The judgment in CooverjeeBharuchav. Excise Commissioner , Ajmer30, dealt
with auction of license to run a liquor shop. Chief Justice Mahajan adopted
the police power theory to justify regulation of trade in liquor.
In P.N.Kaushalv. Union of India31, Justice Krishna Iyer held that any
government, with workers weal and families survival at heart, would use its
police power under Article 19(6) read with Section 59(f)(v) of the Act to
forbid alcohol sales on pay days.But he conceded that the police power, as
developed in the United States, was inapplicable in terms to Indian
Constitutional Law. However, he held that there was a lot in common
between this doctrine and the power of regulation in Article 19(6).
In Kameshwar Prasad v. State of Bihar32, it was held that American cases
which subjected the freedom of speech to the operation of an imprecise
police power were inapplicable when it came to resolving the questions
arising under Articles 19(1) (a) and (b) of our Constitution because the
grounds on which limitations might be placed on these rights were set out
with definiteness and precision.
Under Indian Constitution, the reasonable restrictionsunder Article 19(2) to
(6) and the procedure established by law under Aticle 21 and the reasonable
classification and arbitrary principle under Article 14 can be equated with the
police power of the State. Moreover with respect to the liquor ban, State can
defend the total ban by relying on Article 47 which makes total prohibition a
social goal.

29 AIR 1954 SC 92
30 AIR 1954 SC 220
31 AIR 1978 SC 1457
32 AIR 1962 SC 1166

BIBLIOGRAPHY
ARTICLES
1. Collins Denny, The Growth and Development of the Police Power of
the State, Vol. 20, No. 2, Michigan Law Review, (Dec., 1921).
2. Elmer E. Smead, Sic UtereTuoUtAlienum Non Laedas A Basis of the
State Police Power, Vol. 21 ,Cornell Law Review, (1936).
3. Gostin LO, Burris S, Lazzarini Z. , The law and the public's health: a
study of infectious disease law in the United States, Vol.99, Colum L
Rev.(1999).
4. Reynolds GH, Kopel DB., The evolving police power: some
observations for a new century, Hastings Constitutional Law
Quarterly,(2000).
5. T. D. Havran, Eminent Domain and the Police Power, Vol 5, Notre
Dame L.aw Review, (1930).