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THE

POLICE POWER

PUBLIC POLICY AND
CONSTITUTIONAL RIGHTS

BY

ERNST FREUND

PROFESSOR OF JURISPRUDENCE AND PUBLIC LAW IN THE
UNIVERSITY OF CHICAGO.

COLLEGE
EDITION

CHICAGO

CALLAGHAN & COMPANY

THE UNIVERSITY OF CHICAGO PRESS

COPYRIGHT 1904

BY

ERNST FREUND

PREFACE

The term police power, while in constant use and indispensable in the vocabulary of American constitutional law, has remained without authoritative or generally accepted definition. It is therefore proper to state at the outset, that the term will be employed in the following pages as meaning the power of promoting the public welfare by restraining and regulating the use of liberty and property. Under this definition constitutional questions regarding civil and criminal justice, taxation, and public improvements and services, are outside of the scope of this treatise, the plan of which also excludes the administrative law of the police power, i. e., the common law and constitutional principles regarding the execution and enforcement of police legislation, and the remedies against unlawful official action in the pretended exercise of the police power.

The first part of the treatise develops the idea of the police power by assigning to it its place among governmental powers (chap. I); and by discussing its various methods of operation (chap. II); and a chapter is given to a summary of the relation of the federal government to the police power (chap. III).

The main division of the treatise is dictated by the consideration that certain rights yield to the police power, while it respects and accommodates itself to others. The part entitled the Public Welfare defines the conditions and interests which call for restraint or regulation. These are classified as primary social interests and economic interests. The former constitute the undisputed field of the police power, in which state control is universally regarded as legitimate. These interests are peace and security from crime (chap. IV), public safety and health (chap. V), public order and comfort (chap. VI), and public morals (gambling, drink and vice, chapters VII, VIII, IX). The control of dependent classes is treated in connection with these interests (chap. X).

The economic interests relating to the conditions of production and distribution of wealth constitute the debatable field

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