State v. Redmon , 1907 Wisc. LEXIS 328 ( 1907 )

MaRshall, T.

It is conceded that the legislation in question was an attempt to exercise the police power of the state which is inherent in sovereign authority under such limitations as exist in the national and state constitutions, and' that if as a police regulation it is not legitimate it is not the law though possessing the form thereof. A legislative enactment approved by the executive and duly published is not necessarily a law or binding on any one in respect to his liberty, his business, or his property. It is such if it is susceptible of passing the judicial test of whether it is warranted by the fundamental law, which our constitutional system contemplates may be applied to all such enactments. Perhaps the thought sometimes expressed that the vital feature suggested, which every good law must possess, is not as fully appreciated by the law-making power as it ought to be, leading to infractions of some express limitation as well as that broad general restriction of legislative power contained in the declaration that

“All men are horn equally free and independent, and have •certain inherent rights; among these are life, liberty, and the pursuit of happiness; to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.”

Too much dignity cannot well be given to that declaration. That it was intended to cover a broad field not practicable to •circumscribe by any specific limitation or limitations cannot well be doubted. This court has given thereto its proper plaee in unmistakable language, particularly in recent decisions. Durkee v. Janesville., 28 Wis. 464, 471; State ex rel. Adams v. Burdge, 95 Wis. 390, 70 N. W. 347; State ex rel. Kellogg v. Currens, 111 Wis. 431, 435, 87 N. W. 561; State ex rel. Zillmer v. Kreutzberg, 114 Wis. 530, 90 N. W. 1098; State ex rel. Jones v. Froehlich, 115 Wis. 32, 42, 91 N. W. 115; State ex rel. Milwaukee Med. Coll. v. Chittenden, 127 Wis. 468, 521, 107 N. W. 500. Doubtless tbe fathers of tbe constitution foresaw tbe likelihood and danger of tbe security of personal rights, which the fundamental law was intended to firmly entrench with the judiciary as its efficient defender, being jeopardized at times by excessive regulation of the ordinary affairs of life, and with that in view incorporated in the fundamental law at sec. 22, art. I, that admonition so full of meaning:

“The blessings of a free government can only be maintained by a firm adherence to justice, moderation, temperance, frugality and virtue, and by frequent recurrence to fundamental principles.”

The idea is found expressed now and then, that the police power is something not dealt with or affected by the constitution, at least in any marked degree, which is a mistake hardly excusable. The error suggested here and there, that the police power is “a sovereign power in the state, to be exercised by the legislature, which is outside, and in a sense above, the constitution (Donnelly v. Decker, 58 Wis. 461, 17 N. W. 389), or that a police regulation which is clearly a violation of express constitutional inhibition, is legitimate, subject to a judicial test as to reasonableness . . . (Tiedeman, State & Federal Control, § 3), or that 'no police regulation, not condemned by some express constitutional prohibition, is illegitimate, or that legislation not so condemned is legitimate if the law-making power so wills, though it violates some fundamental principles of justice, or that the reasonableness of a police regulation, and whether it unjustly deprives the citizen of natural rights, is wholly of legislative concern (Hedderich v. State, 101 Ind. 564, 1 N. E. 47), and others of a similar character now and then found in legal opinions and text-books, are highly misleading” and have been distinctly discarded by tliis court. State ex rel. Milwaukee Med. Coll. v. Chittenden, supra. As was there said, “If it were true that all police regulations are legitimate which are reasonable, and all are reasonable which the legislature so wills, the constitution as to very much of the field of civil government would be of no use whatever. The contrary has been the rule without any legitimate question since Marbury v. Madison, 1 Cranch, 137.”

The following significant expressions of this court as to the constitutional limitations in the exercise of the police power leave nothing further to be said on the subject:

“As the police power imposes restrictions and burdens upon the natural and private rights of individuals, it necessarily depends upon the law for its support; and, although of comprehensive and far-reaching character, it is subject to constitutional restrictions. . . .” State ex rel. Adams v. Burdge, 95 Wis. 390, 398, 70 N. W. 347, 349.

“At this late day it cannot be doubted that this declaration of the purpose to be accomplished is to be construed as a limitation upon the powers given. By the preamble, preservation of liberty is given precedence over the establishment of government. It would be inconceivable that the people of Wisconsin, in establishing a government to secure the rights of life, liberty, and the pursuit of happiness, should by general grant of legislative power have intended to confer upon that government authority to wholly subvert those primary rights; and in this view it has been held by this court that legislative acts conflicting with that declared purpose are forbidden by the constitution, and must be denied efficacy by the courts.” State ex rel. Zillner v. Kreutzberg, 114 Wis. 530, 532, 90 N. W. 1098, 1099.

“The police power has been wittily defined as the power to pass unconstitutional laws, and some utterances of courts have seemed to justify such conception. It is nevertheless erroneous. An act which the constitution clearly prohibits is beyond the power of the legislature, however proper it might be as a police regulation but for such prohibition.” State ex rel. Jones v. Froehlich, 115 Wis. 32, 42, 91 N. W. 115, 118.

“So legislation referring to police authority for legitimacy, like any other exercise of the law-making power, must bear the test of constitutional limitations, which will be found upon all sides. On the one side it may meet the barrier of an express prohibition; on another the implied prohibition of any law not in harmony with the all-prevailing purposes of the constitution; on another the implied inhibition involved in the declaration that The blessings of a free government can only be maintained by a firm adherence to justice, moderation, temperance, frugality and virtue, and by frequent recurrence to fundamental principles.’ ” State ex rel. Milwaukee Med. Coll. v. Chittenden, 121 Wis. 468, 521, 107 N. W. 500, 517.

Doubtless in most, if not all, of the instances above referred to where language was used descriptive of police authority, which, as indicated, are misleading, the ideas in the minds of the judicial writers were in the main, at least, correct, but the manner of expressing them was not altogether fortunate.

The police power is so obviously essential to the public welfare that it is presumed the framers of the constitution did not intend to prohibit its exercise where reasonably necessary therefor, though such exercise might invade the scope, viewing the language in the literal sense, of some fundamental prohibition, as that against taking property for public use without rendering just compensation therefor. So it is said that a law authorizing the destruction by public authority of private property without the owner’s consent, where necessary to prevent the spread of a contagious disease, is legitimate not because the police power is above or superior to or not dealt with by the constitution, but because it was not intended to deal with the suggested situations by such express prohibition. Therefore the law is not to be regarded as a violation thereof, though if the field of reasonable necessity were exceeded that of the prohibition would be invaded. Up to the boundary between the two the police authority is not restricted by the prohibition, while the existence of it is rather guaranteed by the general declaration breathing the dominant purpose of civil government. So a police regulation, correctly speaking, is no more legitimate than a law in any other field if it in fact violates any principle entrenched in the constitution.

What is this police power about which so much is said, and which is so commonly and, generally speaking, legitimately invoked as a justification for legislation regulating the affairs of life? In view of the multiplication of legislative enactments hedging the citizen about as to many of such affairs and in a manner quite novel as compared with former conditions, it is quite important that the character of that broad power and its limitations by the fundamental law should be as accurately understood as practicable.

Many attempts have been made to define police power. There is good reason to say that the multitude of such, attempts with the many variations in phrasing the matter have not added very much to the simple expression, that it is the power to make all laws which in contemplation of the constitution promote the public welfare. That both defines the power and states the limitations upon its exercise, it being understood that it is a judicial function to determine the proper subject to be dealt with, and that it is a legislative function, primarily, to determine the manner of dealing therewith, but ultimately a judicial one to determine whether such manner of dealing so passes the boundaries of reason as to overstep some constitutional limitation, express or implied.

This court, in common with others, has said that the police power extends to legislation regulating, reasonably — that is, to an extent not entering the realms of the destructive, — all matters appertaining to the lives, limbs, health, comfort, good morals, peace, and safety of society. Baker v. State, 54 Wis. 368, 372, 12 N. W. 12; State ex rel. Larkin v. Ryan, 70 Wis. 676, 681, 36 N. W. 823; State v. Heinemann, 80 Wis. 253, 49 N. W. 818; Bittenhaus v. Johnston, 92 Wis. 588, 66 N. W. 805; State ex rel. Kellogg v. Currens, 111 Wis. 431, 87 N. W. 561. Again tbis court said, by wav of approval of expressions of standard authors and opinions in leading cases, tbe police power includes “all laws for the protection of life, limb, and health, for the quiet of the person and for the security of property.” “All persons and property are subjected to all necessary restraints and burdens to secure the general comfort, health, and prosperity of the state.” “It is co-extensive with self-protection and is not inaptly termed ‘the law of necessity.’ It is that inherent and plenary power in the state which enables it to prohibit all things hurtful to the comfort and welfare of society.” State ex rel. Adams v. Burdge, 95 Wis. 390, 398, 70 N. W. 347. These and many other similar phrasings, meaning the same thing, are far from being entirely satisfactory. They are misleading to one who reads them without having in mind the idea that all legislative regulations of human affairs interfering with personal liberty or other private rights, to be legitimate, tested by constitutional limitations, must be .reasonably for the public benefit.

It were better to always say that the police power extends to and permits legislation regulating reasonably matters appertaining to the public welfare, since anything beyond that must necessarily fall at the threshold of some constitutional defense. It is a great power, having more to do with the well-being of society than any other, yet one which if exercised autocratically would supersede some of the most cherished principles of constitutional freedom. It may be extended disastrously, or restrained and administered beneficially, according as the judiciary shall perform its constitutional functions. Confined within its legitimate field of reasonable regulation it is essential, as we have heretofore indicated, to' the full accomplishment of the purposes of civil government.

There may be autocracy of the sovereign, whether the term is used in a personal sense or as representing the people in the aggregate acting through, their representatives. One might be quite as dangerous as the other without the restraints of a written constitution and an independent and courageous judiciary to stand guard at the boundaries thereof.

"With our system the danger of destruction or impairment of inherent rights by well-meant but improvident legislation is too remote to be disturbing as to the future, for, as said in effect in Marbury v. Madison, 1 Cranch, 137, no enactment is controlling if the tribunal created by the constitution to pass upon its character cannot reasonably escape the conclusion that the paramount law condemns it.

"With the foregoing general observations as to the character and limitations upon the police power we shall proceed to consider, respecting the law in question, these propositions; Is it a police regulation, laying aside for the purposes of the inquiry the question of whether it is within the constitutional held ? Second, if it be such a regulation, is it outside the held of reasonable interference with private rights ?

The ostensible purpose of the law, as indicated by its title, is to promote the “health and comfort of occupants of sleeping-car berths.” .Words were used in such title ex in-dustria, seemingly, to give to the enactment, unmistakably, the character of a police regulation, but a law is not necessarily one to promote the public health and comfort of people generally, or of a legitimate class thereof, merely because such is its declared purpose.

As it is a judicial function to dehne the proper subjects for the exercise of police power (Lake View v. Rose Hill C. Co. 70 Ill. 191), it must be to decide, as to any enactment, whether it really relates to a legitimate subject, or under the guise of doing so violates rights of persons or property. The idea that all legislation is within the police power which the law-making authority determines to be so, and that all which might be within such power is within it if the legislature so determines, is, as we have seen, a heresy, and one which was repudiated sufficiently for all time by the early decision, heretofore referred to, in Marbury v. Madison, supra, the American classic which first and conclusively defined the general character of the constitutional limitations and the relations of the legislature and the judiciary thereto and to each other. The doctrine there laid down more than a century ago in the unanswerable logic of Chief Justice Mabshaij, has never been departed from, except accidentally, inconsiderately, or ignorantly.

These words of the supreme court of the United States, speaking by Mr. Justice Haklan, in Mugler v: Kansas, 123 U. S. 623, 661, 8 Sup. Ct. 273, 297, express in a different form the spirit of the opinion in Marbury v. Madison, supra:

“The courts are not bound by mere forms, nor are they to be misled by mere pretenses. They are at liberty — indeed, are under a solemn duty — to look at the substance of things, whenever they enter upon the inquiry whether the legislature has transcended the limits of its authority. If, therefore, a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to, those objects, or is a palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the constitution.”

That states the law as it has been uniformly administered. Many examples might be given of like judicial treatment of the matter. We will rest the subject with one further citation. In In re Jacobs, 98 N. Y. 98, 110, an act declared, as in this case, to be for the promotion of the public health, was condemned as an unconstitutional interference with private rights, the court saying:

“It matters not that the legislature may in the title to the act, or in its body, declare that it is intended for the improvement of public health. Such a declaration does not conclude the courts, and they must yet determine the fact declared and enforce the supreme law.”

It is not every enactment which “will to some extent promote the public health, comfort, or convenience, which is legitimate. Otherwise the way wonld Re open for legislative interference witR the ordinary affairs of life to an extent destructive of many of the most valuable purposes of civil government. An expert on sanitation, or one on the manner of living best calculated to promote long and enjoyable life, wRo Ras become an enthusiast in bis special study of tRe matter, could doubtless suggest a multitude of really, or apparently, good rules to be followed; the temperature of the air of sleeping rooms, the proper size of the rooms as regards the number of occupants, the arrangements for frequently changing the air by displacing that within for that without the habitation, the hours for sleeping, for retiring, and for arising, the amount and kind of food to eat, the proper number of meals per day, the proper admixture of solids and liquids and length of time for each meal, the amount and kind of exercise required, and other things too numerous to mention might be suggested for legislative interference, each with a provision for a severe penalty for its violation, with a division of the penalty, perhaps, between the informer and the public, till one would be placed in such a straight-jacket, so to speak, that liberty and the pursuit of happiness, the incentive to industry, to the acquirement and enjoyment of property, — those things commonly supposed to make a nation intelligent, progressive, prosperous, and great, — would be largely impaired and in some cases destroyed. That such an extreme would be regulation run mad and is quite improbable, ’tis true, but it would be possible without limitations of some sort, if a police law be conclusively legitimate merely because it promotes, however trifling in degree, public health, comfort, or convenience.

To take a view of a possible extreme running into the absurd is sometimes a most helpful method of illustrating that which must be regarded as false from its very absurdity. Law can never legitimately go clearly beyond tbe boundaries of reason.

Illustrating tbe matter as above, in Ex parte Jentzsch, 112 Cal. 468, 472, 44 Pac. 803, 804, tbe court said:

“Tbe spirit oí a system sucb as ours is, therefore, at total ■variance with that wbicb, more or less veiled, still shows in the paternalism of other nations. It may be injurious to health to eat bread before it is twenty-four hours old, yet it would strike us with surprise to see the legislature making a crime of the sale of fresh bread. . . . So, while the police power is one whose proper use makes most potently for good, in its undefined scope and inordinate exercise lurks no small danger to the republic. Eor the difficulty which is experienced in defining its just limits and bounds affords a temptation to the legislature to encroach upon the rights of citizens with experimental laws, none the less dangerous because well meant.”

The doctrine that the police power is really a law of necessity forms the key, it would seem, with which to unlock the mysteries, so far as practicable, of what is within and what is without the limits of such power. Not that a police regulation, in form or pretense, to be one in fact must supply some absolute essential to the public welfare, but that the exigency to be met must so concern such welfare, be sufficiently vital thereto, as to suggest some reasonable necessity for a remedy affordable only by a legislative enactment, as to efficiently invite public attention thereto1, it being regarded as a legislative function to primarily pass upon the matter. No more definite rule can be well worked out except as it may be evolved by the process of inclusion and exclusion in the treatment of cases as they arise.

Illustrations of the necessary degree of exigency are cases of.the deprivation of liberty by isolation to prevent the spread of contagious diseases, deprivation of property without the consent of the owner and without rendering a compensation therefor, as the destruction of animals in case of their being afflicted with incurable diseases, or the destruction of buildings as the only practicable method of staying the spread of a conflagration, or of bedding used in caring for persons affected with serious contagious diseases, where fumigation or some other comparatively inexpensive method of removing the dangerous germs from the articles is not practicable; the prevention of the pollution of water supply, the regulation of the construction or arrangement and care of buildings, especially in cities or where large numbers of persons are wont to congregate, to avoid very serious dangers which experience shows would otherwise exist; dangers so serious as to challenge the attention of any one of ordinary intelligence conversant with such matters. As said in Lawton v. Steele, 152 U. S. 133, 137, 14 Sup. Ct. 499, 501:

“To justify the state in thus interposing its authority in behalf of the public, it must appear, first, that the interests of the public generally, as distinguished from those of a particular class, require such interference; and, second, that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals.”

To the same effect are: In re Wilshire, 103 Fed. 620; Toledo, W. & W. R. Co. v. Jacksonville, 67 Ill. 37; Ritchie v. People, 155 Ill. 98, 40 N. E. 454; Ruhslrat v. People, 185 Ill. 133, 57 N. E. 41; Bessette v. People, 193 Ill. 334, 62 N. E. 215; In re Jacobs, 98 N. Y. 98; Health Dept. v. Trinity Church, 145 N. Y. 32, 39 N. E. 833; C., B. & Q. R. Co. v. State ex rel. Omaha, 47 Neb. 549, 66 N. W. 624.

Controlling significance should be attached to the words above quoted, “the interests of the public generally,” etc., “require such interference.” Not that some individuals now and then, or even generally, demand it, or require it, but that the interests of the people generally require it. In other words, that it is reasonably essential or necessary to such interests that the subject thereof should be dealt with by the legislature.

Further discussion on this subject might be indulged in at great length, which, though it might be interesting, would not be necessary or perhaps helpful in the decision of this or future cases.

The inquiries to be solved in testing an enactment purporting to be for the promotion of the public health as to whether it is fairly within the field of police power are well stated at sec. 143, Freund, Police Power, thus:

“Does a danger exist? Is it of sufficient magnitude? Does it concern tire public ? Does the proposed measure tend to remove it ? Is the restraint or requirement in proportion to the danger ? Is it possible to secure the object sought without impairing essential rights and principles ?”

The judgment of the legislature, of course, as to all of them is to be taken as correct, unless it appear to be clearly wrong, and also it is to be taken as true that its ostensible is its actual purpose, unless the contrary clearly appears.

Now how is it with sleeping-cars, as regards whether the upper berths are open or closed when the lower ones are occupied, respecting any substantial danger, inconvenience, or discomfort to persons generally patronizing such utilities; danger sufficient to challenge attention as. one reasonably requiring for the public interests a remedy? Persons so circumstanced as a rule, we apprehend, are so indifferent as to whether the upper berth is closed or not that they would not seriously think of having it closed at their expense or to the extent of even a small sum. Many probably would prefer to have it open if they were permitted to deposit some of their belongings therein in case of its not being otherwise occupied, which is commonly allowed. That is recognized in the law itself. Had it been thought that there is a substantial reason why, in the public interests, an upper berth should be closed when unoccupied, in case of the lower one being in use, the law would have so provided in all cases, instead of leaving it to the mere dictation, whether springing from judgment or mere whim, of each individual customer for a lower berth, to control the upper one, in respect to the matter. To thus leave such matter to the mere caprice of the occupant of the lower berth is a confession on the face of the act that it was not treated by the legislature as one deemed to be reasonably vital to the public interests. So the law is not, in reality, a police regulation but an unwarranted interference with property rights; an attempt in the circumstances specified to give to any person, at his option, who pays for a part of a section in a sleeping-car the use, free of charge, of the balance thereof; an obvious, though well meant, attempt, it would seem, through mistaken notions of legislative power, to appropriate the property of one for the benefit of another in violation of several constitutional safeguards that might be referred to, but particularly the guarantee that “no person shall be . . . deprived of life, liberty, or property without due process of law,” and the further guarantee that “private property shall not be taken for public use without just compensation therefor,” and the safeguard springing from the whole constitutional system that private property shall not be taken at all for private use, except in the-enforcement of obligations inter partes. In the foregoing it is not intended to foreclose the question of whether the scope of police power extends to preventing, as a rule, the letting down of upper berths in sleeping-cars when not occupied or engag'ed, in cases where the lower ones are occupied.

The proposition as to whether, if it were legitimate under the.police power, in the interests of public health and comfort, to burden the business of operating sleeping-cars with a regulation giving an occupant of a lower berth dominion over the upper one, it is reasonable to do so in the manner provided, need not necessarily be treated, especially since it is incidentally involved and fairly covered in what has been said. Therefore, we will rest the case without much further discussion.

As we have seen, legislative interference with, property or other private rights for the ostensible purpose of promoting public health and comfort, or both, to be valid must be adapted to that end,, not merely to make effective mere individual dictation. It must neither deal with a matter not in reason forming a proper subject for police regulation, nor deal with a proper subject therefor by means which are clearly unreasonable for the accomplishment of the purpose nor which are oppressive. Lawton v. Steele, 152 U. S. 133, 137, 14 Sup. Ct. 499. So, courts have held the law may properly provide for the summary destruction of property which is of little value and being illegally used, while one for such destruction of property of considerable value for proper use, the annihilation thereof not being necessary to remedy the improper use, would be invalid. Lanvton v. Steele, supra. A house may not be lawfully tom down because of its use for an unlawful purpose. Ely v. Niagara Co. 36 N. Y. 297. A regulation requiring a railroad to keep a flagman at every crossing, regardless of the amoimt of traffic and the degree of danger, is invalid upon the ground of unreasonableness. Toledo, W. & W. R. Co. v. Jacksonville, 67 Ill. 37.

In general, as before shown, all police regulations must bear the judicial test of reasonableness under all the circumstances. This doctrine is being more and more emphasized as the number of police regulations multiply, evincing a tendency to fence in individual freedom as to matters not formerly so narrowed by legislative enactments. The writers declare that the supervision which courts widely exercise regarding the adjustment of means to ends in the protection of public interests as to ordinances extends to legislative enactments as to health and safety. Freund, Police Power, § 142. Illustrative of that it is said in Plessy v. Ferguson, 163 U. S. 537, 16 Sup. Ct. 1138, that every legislative exercise of the police power must be reasonable, and in Rideout v. Knox, 148 Mass. 368, 19 N. E. 390, that reasonableness is one of the inherent limitations of such power.

In the foregoing it is not intended, even impliedly, to make any suggestion as to the wisdom of the increase of police regulations mentioned. That is heyond our functions. We only point to such, increase as a circumstance which has aroused into greater activity and significance than formerly was apparent the judicial power of supervision which was intrenched in the constitution to prevent excesses.

It follows that an arbitrary appropriation in the name of law of the space of an upper berth in a sleeping-car for the greater comfort and safety, as regards the health of the occupant of the lower berth, at his option, if such use of such space were reasonably necessary, is highly oppressive. A regulation under the police power securing such, privilege, in case of the upper berth not being engaged, by paying for it, would present a different question.

The learned deputy attorney general suggests that the law in question was borrowed from the state of - Hew Hampshire, where it was adopted in 1883 (see. 2, ch. 40, Laws of 1883; Pub. St. N. H. 1901, ch. 160, sec. 11). We are unable to find its validity to have been passed upon in that state. In any event, in our judgment, it is clearly unconstitutional, both because the subject as dealt with is not within the scope of police power, but is a mere matter, as to the persons sought to be benefited, of individual concern, and because if it were otherwise the character of the remedy, under the circumstances, is not within the boundaries of reason and so is an interference with constitutional rights of property.

By the Gourt. — The question submitted for decision in the first case is answered in the negative, and the same question submitted in the second case is likewise answered.