We are upon very solid ground when we accept the definitions of the American and English Cyclopædia of law (vol. xxvii, p. 632) as to what colleges and universities are. It defines a university to be "an institution of higher learning consisting of an assemblage of colleges united under one corporate organization and government, affording instruction in the arts, sciences, and the learned professions and conferring degrees." It declares a college to be "an organized assembly or collection of persons established by law and empowered to co-operate for the performance of some special function, or for the promotion of some given object, which may be educational, political, ecclesiastical, or scientific in its character."

It has been sufficiently held by the American courts and is generally accepted that a college or university cannot do things which are not specifically or impliedly granted in the charter or the act under which it is incorporated, and has no power to confer degrees or to grant diplomas unless the power is expressly given by the legislature.

This is much, for it goes very definitely to the source of the degree-conferring power. It might well be made more of, because it is so much easier to accentuate the powers of legislatures in the minds of legislators and to induce them to fix the terms upon which they will grant the powers of the state than it is to procure the passage of laws making misdemeanors of conduct which does not seem very heinous to the legislative mind. And it must be said that good, strong, affirmative legislation, and much of it, upon the equipment and powers of colleges and universities, upon the conditions precedent to the granting of degrees, would work a very invigorating effect, both directly and by reflex action, upon the educational situation of the country.

But of course this does not meet the question, What is to be done with those who want to follow an educational business for what money there is in it, and who cannot carry on that business upon a plane to command the approval of the state? What about those whose ignorance, or indifference, or cupidity, leads them to make public pretenses which are impossible and absurd, misleading and demoralizing?

If the state is definitely to assume exclusive authority over the power to confer academic degrees and to prescribe the organization, resources, and outfit of colleges and universities, and then to outlaw all concerns which do not meet its requirements, and prohibit them from using the names which it reserves for the institutions which it sanctions, it must do more than grant authority to do what it approves : it must stop others from doing, or pretending to do, the same things without its approval. This involves the exercise of what is called the police power.

The police power-its growth, its scope, and its limitations can only be referred to here. It cannot be discussed, for volumes are inadequate to its comprehensive exploitation. It would be presumptuous even to attempt to define it. The most learned judges and text-writers have declared that it cannot be defined. In the most general way it may be said that it is the power which has arisen in organized society to regulate its affairs in the interests of the common welfare and progress. It not only allows; it forbids and punishes. It has enlarged and extended as communities have increased and society has advanced. It goes beyond the punishment of the recognized crimes and concerns itself with the life and health of the citizen, with the enjoyment of private and social life, with the comfort of existence in dense population, and with the intellectual progress of the masses.

The police power is the trenchant instrument of democracy, and for reasons quite obvious it has had its fullest development and its widest application in this country. The matters upon which it has assumed to act can hardly be enumerated, but the comprehensiveness of its scope may be indicated by a partial statement of them.

It has undertaken to make dwellings sanitary and to provide means of escape from fire; to regulate the sale of drinks and to prevent the adulteration of foods; to prevent nuisances and to stop games which are hurtful or demoralizing. It supervises transportation companies, insurance companies, building associations, banks, and the like, and sternly prohibits the carrying on of these businesses except by the leave of the state.

It

regulates innkeepers, hack-drivers, and auctioneers. It forbids the practice of many of the professions until the candidate has passed such tests as it prescribes. It refuses permission to teach in the schools until the preparation which it exacts has been accomplished. It even assumes to interdict many of the occupations of skilled labor until it places the mark of its approval upon the workman, and it controls many of the ordinary vocations for the sake of the common good.

Under this power it has been held that the state may tear down a house which is going to decay or one which promises to be food for a conflagration; that it may slaughter cattle with infectious diseases; that it may compel vaccination and confine the insane or those afflicted with contagious diseases; that it may restrain vagrants and beggars and drunkards; that it may suppress obscene publications and houses of ill fame; that it may establish the places where and the conditions upon which certain legitimate callings may be carried on; and that it may fix the price at which water may be sold by one who has a monopoly of it.

The highest court in the land, and by far the most august in the world, has held that under the police power a State may regulate and fix the charges which the owners of private property holding themselves out to do a general business may exact of customers who require their service and the use of that property, whenever it appears that they have a monopoly of the business and it has come to be of public interest. The right to regulate and control involves the right to suppress, if conditions make it necessary. The Supreme Court has held that a valuable property, built up under the protection of the law, may be confiscated and destroyed without compensation under the police power of a State, after an amendment to the State constitution had made the business carried on in that property unlawful, and this notwithstanding the provision in the Federal Constitution against taking property without due process of law, and the other one against impairing the obligation of contracts. The gist of all this is that when a public interest is involved the legislature may intervene and go all lengths to promote it; that whenever a matter is determined to be of a

public as distinguished from a private character, the State may do whatever in its judgment may be necessary concerning it.

In a word it may be said that the police power of the State extends to every matter involving the well-being of the community, whether it be moral or social, industrial, or intellectual and educational.

There are, of course, limitations upon the exercise of this power. It must not contravene the principles established in the charters of English liberty, and it must not get in conflict with the provisions of our State and Federal constitutions. This gives rise to the most intricate legal questions. No law questions have ever so taxed the learning of any court in the world, and, it may be added, have been so safely met as those which have required the Supreme Court of the United States to determine whether the exercise of the police power in certain cases was in conflict with provisions of the Federal Constitution, and particularly whether it was obnoxious to the Civil Rights Amendments thereto.

Of course the exercise of the police power must be in good faith, and not to gain any fatuous or sinister end. It cannot be used as an instrument of persecution. One's right to pursue any business he chooses up to the point where it conflicts with the common welfare is fundamental, but everything hurtful to the public interests may be restricted and prohibited. Whether a statute invades a fundamental right, whether it helps or hurts the common good, whether it conflicts with any of the provisions of the constitution are questions for the courts. Therefore the exercise of the police power must rest in the sound discretion of the legislative branch, and must have the approval of the judicial branch of the government. Within these limits it is untrammeled. The courts will uphold the legislative discretion unless it has fallen into fundamental

error.

Fortunately, in our system the responsibility for public education is with the same authority which is charged with the proper exercise of the police power. Our educational systems are State systems. They are not city, county, town, or district systems except as the State legislatures delegate authority to

cities, counties, towns, or districts. Such delegation of authority may be modified or taken away. The supervision of educational work, the provision and direction of educational instrumentalities, are with the States. These things have never been ceded to the Union. Many of the State constitutions say so. The legislatures and the highest courts in many of the States have said so. The Supreme Court of the United States has said so. The Federal Government may aid and encourage, but it cannot direct or control, education in the States. Of course it may, and must, in the Territories. It has never claimed anything else. The Constitution of the United States contains no reference to the matter. That great document is silent upon the subject of first public concern. It is not because the men who framed it were ignorant or indifferent. They were the very best men in the country: half of them were college graduates. It is because it was deemed best to leave the whole matter with the States, and experience has proved, overwhelmingly, the wisdom of the course. The plan is a wise and beneficent one; it has located authority and responsibility within the popular reach; it has given the educational system its largest opportunities, while it has made it adaptable to the circumstances of all sections of the country.

Educationists of all others should understand this, but the very elect get befogged about it. Last summer, when the adverse report of its committee on a national university was presented to the National Council of Education, some of the past-masters of American education became frantic over it. Happily Mr. Carnegie's munificence has relieved the whole situation, made further discussion of a national university superfluous, and released Congress from the temptation to do much shuffling and prevarication to educational constituents, and lifted the courts out of peril of differences with the Council of Education.

It is a power which, under our system, inheres in the several States. It has never been ceded to the General Government and has never been claimed by it. It is a sacred trust which the people have confided in the State legislatures and which those bodies will neither be allowed to abuse nor divest them