"With regard to the police power, as elsewhere in the law, lines are pricked out by the gradual approach and contact of decisions on the opposing sides. . . . It will serve as a datum on this side, that in our opinion the statute before us is well within the state's constitutional power, while the use of the public credit on a large scale to help individuals in business has been held to be beyond the line."

..

In an earlier case 33 the Supreme Court declared that while "the right to exercise the police power is a continuing one yet the exercise of this power is subject to judicial review, and property rights cannot be wrongfully destroyed by arbitrary enactment." In every case, the courts at all events must inquire34 "whether the legislature has adopted the statute in the exercise of a reasonable discretion, or whether its action be a mere excuse for unjust discrimination, or the oppression or spoliation of a particular class. "'35

So far from the Supreme Court being open to fair criticism for giving unduly narrow construction to constitutional provisions in favor of individual rights, as against measures designed for the public welfare, a more candid criticism might suggest that that great tribunal in common with other courts had yielded somewhat unduly to public criticism in giving effect to legislation, which, however desirable from the standpoint of social reform, yet involves a measurable encroachment upon some of those individual rights to secure which the Fourteenth Amendment was adopted.

Modern criticism of courts apparently proceeds upon the theory that constitutional provisions shall be enforced only until a certain number of people who are able to give expression to their views in newspapers, magazines, and on the lecture platform shall contend that some other principles should control legislative action. The theory of the framers of constitutions in the past has been that their provisions were to be more than temporary in duration, and that they should be respected and enforced, until a sufficiently large number of people should disagree with them to bring about a modification of the constitution in the method provided in such instru

Dobbins v. Los Angeles, 195 U. S. 223–239.

4 Holden v. Hardy, 169 U. S. 366, 398.

35 See also Dobbins v. Los Angeles, supra, and cases cited on pp. 236-238.

ment; and that the question whether or not legislative or executive action exceeded constitutional limitations should not be left to the final determination of those acting, but, when arising in the course of litigation, should become a judicial question, to be determined by the courts of justice. This has been the American theory of constitutional government; and it is interesting to note that the same theory was deliberately adopted in one of the newest and, in some respects, the most radical of English federations, Australia.

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In the convention which framed the constitution of the Commonwealth of Australia it was proposed that when any law passed by the Commonwealth Parliament was declared unconstitutional by a decision of the High Court, the executive might, upon the adoption of a resolution by absolution majorities in both houses, or in one house alone, refer the law to the electors for their approval, and, if so approved, that the same should become a law notwithstanding the constitution in effect Colonel Roosevelt's proposition for the recall of judicial decisions.

But Mr. Moore, in his work on the "Constitution of the Commonwealth," says:

"The proposal received no support, and the maintenance of the individual right to impugn laws is the more significant because in other respects the constitution differs markedly from the Constitution of the United States in not establishing rights of individuals against governmental interference." 36

The constitution, as adopted, expressly empowered the Parliament, "subject to this constitution," "to make laws for the peace, order, and good government of the Commonwealth, with respect to" certain enumerated subjects, and authorized Parliament to confer original jurisdiction upon the High Court in any matter "arising under this constitution, or involving its interpretation." Not only was the finality of judicial interpretation of constitutional power recognized as incident to the ordinary administration of justice, but it was also provided that under certain conditions the executive or the legislature might require the opinions of the justices of the High Court upon constitutional questions, and it was further declared

36 See Moore's Constitution of the Commonwealth, 2 ed., Melbourne, 1910, p. 360.

"No appeal shall be permitted to the Queen in Council from the decision of the High Court upon any question howsoever arising as to the limits inter se of the constitutional powers of the Commonwealth and those of any state or states, or as to the limits inter se of the constitutional powers of any two or more states, unless the High Court shall certify that the question is one which ought to be determined by Her Majesty in Council." 37

It would be well if the exercise of the police power could be limited by the test often enunciated, but not always followed, of reasonableness, as distinguished from arbitrary or capricious action.38

But the pressure is very great on the part of social reformers to compel legislation which transcends constitutional restrictions, and seeks justification under the elastic boundaries of the police power, and any interference with their programs by decisions of courts based upon constitutional limitations is received by them with impatience, and provokes them to intemperate attacks on judges and the exercise of the judicial function just described. The leader of the radical movement against the judicial enforcement of constitutional limitations has declared his belief that courts should continue to have the power to declare void unconstitutional legislation, but, he adds, "only provided the power is exercised with the greatest wisdom and self-restraint."39 If the continued existence of governmental functions were to be dependent upon officials always exercising powers vested in them "with the greatest wisdom and self-restraint," it may be questioned how long government could continue. Certainly there have been times when the executive office under such a test would have had to go into commission. There are infirmities in all human institutions, but government is an exceedingly practical business. The framers of our institutions believed that the welfare of society would suffer if the legislature had unlimited power. When the states became members of a federal union the short experience under the original Articles of Confederation demonstrated

37 See Edgerton, Federations and Unions Within the British Empire, Oxford, 1911, pp. 58, 66, 212, 214.

38 State ex rel. Davis v. Clausen, 117 Pac. 1101.

See also "Judicial Construction of Fourteenth Amendment," by Francis J. Swayze, 26 HARV. L. REV. I.

39 The Outlook, supra, Jan. 6, 1912.

the need of a stronger central government, and of some power to prevent either state or national government from encroaching upon the domain assigned to the other. This power was provided in an impartial judicial establishment. Our forefathers had suffered from various kinds of tyranny. They proposed to protect the individual citizen in his life, his liberty, his reputation, and his property, against any form of oppression, and to that end they formulated and embodied in the fundamental law declarations of rights which were to be forever recognized and preserved. The judiciary was made the guardian of those rights. In the discharge of that sacred trust it has sometimes erred; but on the whole it has not allowed the letter to stifle, but has been quickened by the spirit of liberty under law. Mr. Justice Holmes recently said he did not believe the Union would be imperilled if the Supreme Court lost its power to declare an act of Congress void; but he added, "I do think the Union would be imperilled if we could not make that declaration as to the laws of the several states. For one in my place sees how often a local policy prevails with those who are not trained to national views and how often action is taken that embodies what the commerce clause was meant to end."40

Whether the power be taken away directly, or be deadened and atrophied in its action by adverse criticism and demagogic clamor, when the judiciary no longer shall feel at liberty to construe the provisions of the fundamental law "in the light of reason," constitutional government, in the sense in which it has been understood for a century and a half, will be at an end, and the doctrine of the police power will have been swallowed up in the capacious maw of unrestrained democracy.

George W. Wickersham.

NEW YORK CITY.

40 Speech by Mr. Justice Holmes before the Harvard Law Association, New York, Senate Doc. No. 1106, 62d Cong., 3d session.

PUBLIC WRONG AND PRIVATE ACTION.

WHEN

THEN does the violation of a criminal statute or ordinance make the wrongdoer civilly responsible? On this question the law is in some confusion. Sometimes it is said that the wrongful act is "negligence per se"; sometimes that it is only "evidence of negligence"; sometimes again that it is "prima facie evidence of negligence." With the bulk and variety of new legislation the question often comes up in one form or another, and it is desirable to recognize as exactly as possible the principles involved.

Much of the confusion in the cases has come from obscurity as to fundamental conceptions of the law of negligence. This is not surprising, for negligence is a modern head of the law, and decisions rendered before it attained its present development, when principles now well established were still imperfectly perceived, naturally make complications. To-day some things can to advantage be reëxamined and restated. And this ought to be done in as plain and straightforward a fashion as possible. Important as it is everywhere in our law that its distinctions follow simple and rational lines, this is particularly true of the law of negligence. In that topic refinement and complexity are least excusable. Owing to its recent development it is little complicated by outgrown rules; and its characteristic feature is the use of broad and general tests in which everything depends on the facts of the case. Within wide limits the jury is given the power to determine the propriety of conduct. The "ordinary prudent man" is a palpable fiction, designed to present to the jury's mind in concrete form the conception of an external as distinguished from a personal standard. What this imaginary person would have done really means what the jury thinks was the proper thing to do;3 and so long as there is room for a fair difference of

...

1 "The general question . . . whether an injury caused by the defendant while violating a statute is actionable per se is a troublesome one, open to much argument, and not yet settled by any generally accepted principle." Professor Wigmore, in 6 Ill. Law Rev. 350.

2 For the authorities, see Jaggard on Torts, § 263.

3 Arnold, Psychology applied to Legal Evidence, 168; Terry, Leading Principles of Anglo-American Law, § 204.