1900.1 HASTINGS—POLICE POWER OF THE STATE. 529 
The action of the court in declining to look into the claim of 
unreasonableness, put forward on behalf of the company, indicates 
that a dona fide exercise of the police power whose reasonableness, 
and, therefore, whose title to be set above the constitutional guar- 
antees of individual rights, has been affirmed by the judiciary of 
the state of its origination, is also above such guarantees in the 
federal constitution. By the terms the chief justice uses, he con- 
fines such a prerogative, as did Justice Harlan in New Orleans 
Water Works Company vs. Rivers, to provisions for the safety, 
health and morals of the people. 
He does not here any more than in Rahrer’s case set the police 
power above the federal control of commerce. The lawyers 
approached the court on that side and found much comfort. In 
the application of the fourteenth amendment, however, there seems 
to be an increasing tendency to restrict it by means of the common 
law precedents. Even as to the commerce clause, we have just been 
told by the latest examiners of that subject that the validity of state 
legislation affecting commerce must ultimately become a question 
of the extent of the necessity in which its laws have their origin.’ 
It is impossible, however, not to feel the force of Justice Gray’s 
complaint in his dissenting opinion in the original package case 
that the court set commerce above the morals, health and safety of 
the people. It seems to set commerce above personal and prop- 
erty rights. 
In Lawton vs. Steele,? Chief Justice Fuller found himself com- 
pelled to dissent from a slight extension of his own doctrines just 
examined. It was applied to game laws instead of public health, 
morals and safety. Steele was a game and fish protector appointed 
by the fish commissioners of New York. He seized a quantity of 
Lawton’s fish nets on the ground that they were maintained on 
state waters in violation of law and destroyed them as a public nui- 
sance. Lawton sued for their value. 
The nets when taken were for the most part in actual use and 
the rest had been just recently. This was in violation of the state 
law, which provided that any net for taking fish maintained upon 
any waters of the state was a public nuisance, and every game con- 
stable was directed to summarily destroy it, and no action was to 
be maintained against any person for its destruction. The act 
1 Guthrie, 74th Amendment, 76. ERD (OS Wek 
