What are Municipal Police Powers?

In the most general sense, the police power is the power to legislate for the public health, order, safety, morals and welfare. A municipality’s police powers are typically employed by the governing body (city or town commission or council) to enact and enforce local ordinances and regulations requiring that those who are subject to the city or town’s jurisdiction conduct themselves and use their property so as not to unnecessarily injure others. Police power is not an inherent power of a Montana municipal government. Rather, it has been delegated by the
state whose own police power derives as a “reserved power” directly from the Tenth Amendment of the U.S. Constitution. In Montana, the delegation of police power to all municipal governments is encoded generally at 7‐1‐4123 and 7‐5-4101, MCA. Montana Municipal Officials Handbook 18 A prudent governing body will exercise caution and seek the advice of the city attorney before employing its police powers to:

• License some commercial activity;

• Define and/or abate some community or neighborhood nuisance; or

• Regulate the use of private property.

In doing so, the municipal government will necessarily interfere in some way with the liberty of action of the people or with the free and unencumbered use of their private property. Legal scholars point out that there must first be a showing that there is a public interest that requires governmental interference with a person’s freedom or property rights. Secondly, the means adopted by the government to advance that public interest must be reasonably
necessary to accomplish that purpose. Moreover, and especially with respect to the exercise of municipal police power to license commercial activity, it is important to note that:
In short, the legitimate purpose of using police power to license pursuant to 7-21‐4101, MCA is to protect the public health, safety and well‐being, not to raise revenues. Finally, a municipality’s power, under state law, to place restraints upon the personal freedom and property rights of individuals for the protection of the public health, safety and well-being, is always subject to the limitations imposed by the Montana State Constitution and the U.S. Constitution. Especially important in the exercise of police power is careful observance of constitutionally protected due process requirements. Accordingly, a prudent municipal council or commission will always seek the advice of the city attorney before trying to exercise its government’s police powers.