Police Powers

The sovereign power of a state includes protection of safety, health, morals, prosperity, comfort, convenience and welfare of the public.  In the U.S., the authority to regulate local matters concerning health, safety, and morality of state residents is reserved to states under the Tenth Amendment to the constitution.  The basic right of governments to make laws and regulations for the benefit of their communities is police powers.  Police power is defined as the power of a governmental body to impose laws and regulations which are reasonably related to the protection or promotion of a public good such as health, safety or welfare[i].  Usually states delegate to their political subdivisions the power to enact measures to preserve and protect safety, health, welfare, and morals of the community.

Police power does not specifically refer to the right of state and local governments to create police forces.  The exercise of police power can be in the form of making:

  • laws, compelling obedience to those laws through physical means with the aim of removing liberty;
  • legal sanctions; or
  • other forms of coercion and inducements.

Police powers of a municipality are a major function among various governmental functions.  Police power extends to all appropriate ordinances for the protection of peace, safety, health, and good morals of the people.  General welfare is a generic term to describe police power[ii].

The primary function of police power is the promotion of public welfare.  Coercive measures are adopted in police power to regulate threats to public interest[iii].

Generally, a municipality exercises police power by adopting ordinances.  A municipality issues ordinance in order to:

  • promote public welfare;
  • provide for the safety and comfort of its inhabitants; and
  • declare and prevent nuisances[iv].

Preservation of public health is one of the significant aims behind exercising a state’s police power.  A citizen can hold property safely only when municipal corporation exercises police power validly and cautiously.

Police power permits passage of general laws for the entire municipality and special laws applicable to particular localities, highways, rivers, streets, and limits of a territory or a city[v].

Building regulations issued by a municipality is an exercise of police power[vi].

Abatement of nuisances, as a means to promote the public health, safety, and welfare, is a valid goal of the municipal police power.  A municipality has the authority to investigate, declare, and seek the abatement of nuisances

Police power of a municipality includes the power to prevent an anticipation of danger to come.  There must be an active and earnest interest to protect the public.  In order to provide safety, a municipality is empowered to curb and restrain the individual freedom, any business or activity[vii].

The authority given to a municipality to enact ordinances regulating businesses includes:

  • the authority to charge a reasonable regulatory fee to cover the cost of the regulation; or
  • a fee for the cost of a business failure[viii].

The right to exercise police power is an attribute of sovereignty.  Police power is of vast and undefined extent and municipalities have wide discretion while exercising it[ix].  However, although broad, police power is subject to restrictions of state and federal constitutions.  Police power should not infringe protections contained in the U.S. constitution.

Police power is thus limited by:

  • the rights guaranteed by the Constitution;
  • the necessity of a legitimate public purpose; and
  • a reasonable exercise of other powers[x].

 

[i] Shreveport v. Restivo, 491 So. 2d 377, 380 (La. 1986).

[ii] Homewood v. Wofford, 232 Ala. 634, 636 (Ala. 1936).

[iii] Craig v. Macon, 543 S.W.2d 772, 774 (Mo. 1976).

[iv] Cedar Falls v. Flett, 330 N.W.2d 251, 255 (Iowa 1983).

[v] Mayor, etc., of Chattanooga v. Norman, 92 Tenn. 73, 78 (Tenn. 1892).

[vi] State ex rel. Walmar Inv. Co. v. Mueller, 512 S.W.2d 180, 184 (Mo. Ct. App. 1974).

[vii] Brennan v. Seattle, 151 Wash. 665, 668-669 (Wash. 1929).

[viii] Vermont Salvage Corp. v. St. Johnsbury, 113 Vt. 341, 349 (Vt. 1943).

[ix] Porter v. Paris, 184 Tenn. 555, 558 (Tenn. 1947).

[x] President Riverboat Casino-Missouri, Inc. v. Missouri Gaming Comm’n, 13 S.W.3d 635, 641 (Mo. 2000).


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