nuisances, preserve health, prevent fires, to regulate the use and storing of dangerous articles, to establish and control markets, and the like. These and other similar topics will be considered in appropriate places. But it may here be observed that every citizen holds his property subject to the proper exercise of this power, either by the State legislature directly, or by public or municipal corporations to which the legislature may delegate it.' Laws and ordinances relating to the comfort, health, convenience, good order, and general welfare of the inhabitants are comprehensively styled "Police Laws or Regulations." It is well settled that laws and regulations of this character, though they may disturb the enjoyment of individual rights, are not unconstitutional, though no provision is made for compensation for such disturbances. They do not appropriate private property for public use, but simply regulate its use and enjoyment by the owner. If he suffers injury, it is either damnum absque injuria, or, in the theory of the law, he is compensated for it by sharing in the general benefits which the regulations are intended and calculated to secure. The citizen owns his property absolutely, it is true; it cannot be taken from him for any private use whatever, without his consent, nor can it be taken for any public use without compensation; still he owns it subject to this restriction, namely, that it must be so used as not unreasonably to injure others, and that the sovereign authority may, by police regulations, so direct the use of it that it shall not prove pernicious to his neighbors, or the citizens generally. These regulations rest upon the maxim, Salus populi suprema est lex. This power to restrain a private injurious use of property, is essentially different from the right of eminent domain. It is not a taking of private property for public use, but a salutary restraint on a noxious use by the owner, contrary to the maxim, Sic utere tuo ut alienum non lædas.? an act of the legislature fixing a maximum charge for elevating grain was a proper exercise of the police power of the State; aff'g Munn v. Illinois, supra, Mr. Justice Brewer, with whom concurred Justices Field and Brown, dissented, and said that the vice of the doctrine approved by the court is, "that it places a public interest in the use of property upon the same basis as a public use of property." Brass v. Stoeser, 153 U. S. 391 (North Dakota Grain Elevator case), approved and followed Munn v. Illinois and Budd v. New York, Justices Brewer, Field, Jackson, and White dissenting. Chapter on Public Utilities, post. 1 McKibbin v. Fort Smith, 35 Ark. 352; Textor v. Baltimore & O. R. R. Co., 59 Md. 63 (gates at railroad crossings). 2 Baker v. Boston, 12 Pick. (Mass.) 184 (as to nuisances); Wadleigh v. Gillman, 12 Me. 403 (as to wooden buildings); Vanderbilt V. Adams, 7 Cow. (N. Y.) 349 (as to harbor regulations, where the general principle upon which police laws rest is very satisfactorily discussed by Woodworth, J.); Commonwealth v. Alger, 7 Cush. (Mass.), 53, 84 (valuable opinion by Shaw, C. J.); Fisher v. McGirr, 1 Gray (Mass.) 1; Commonwealth v. Tewksbury, 11 Met. (Mass.) 55; Salem v. All-embracing § 302 (142). Subject to Federal Constitution. and penetrating as the police power of the State is, and of necessity the common law, and the owner was entitled to no compensation. 2 Kent Com. 339 (marg. paging), and notes 1 and a and b"; post, §§ 1632-1635. Eastern Railroad, 98 Mass. 431; haps the most striking application of Watertown v. Mayo, 109 Mass. 315; the police power is in the destruction Dingley v. Boston, 100 Mass. 544; of buildings to prevent the spread of a Cobb v. Boston, 112 Mass. 181; Ban- conflagration. This right existed by croft v. Cambridge, 126 Mass. 438; Welch v. Boston, 126 Mass. 442; Little Rock v. Barton, 33 Ark. 436, citing and approving text; Hollingsworth v. Parish of Tensas, 17 Fed. Rep. 109; Coates v. Mayor, &c. of New York, 7 Cow. (N. Y.) 585 (as to ordinance prohibiting the interment of the dead within the city); Goszler v. Georgetown, 6 Wheat. (U. S.) 593 (as to power to grade); Winter v. Montgomery, 83 Ala. 589 (removal of veranda over street); Frazer v. Chicago, 186 Ill. 480, quoting text. The power to regulate the keeping of dogs and to enforce such regulations by forfeitures, fines, and penalties is recognized as one within the police power. Faribault v. Wilson, 34 Minn. 254. The legislature may, it seems, pass an act limiting the height of dwellinghouses in cities. The New York Act of 1885 construed not to extend to buildings designed for hotels. People v. D'Oench, 111 N. Y. 359. In the case of the Boston Beer Co. v. Massachusetts, 97 U. S. 25, Mr. Justice Bradley, speaking for the court, said: "Whatever differences of opinion may exist as to the extent and boundaries of the police power, and however difficult it may be to render a satisfactory definition of it, there seems to be no doubt that it does extend to the protection of the lives, health, and property of the citizens, and to the preservation of good order and the public morals." See also New Orleans Gas Co. v. Louisiana Light Co., 115 U. S. 650, 661; Index, Police Power. Prohibitory liquor laws valid. Bertemeyer v. Iowa, 18 Wall. 129; Foster v. Kansas, 112 U.S. 201; Kidd v. Pearson, 128 U. S. 1; Mugler v. Kansas, 123 U. S. 623; Bowman v. Chicago N. W. R. Co., 125 U. S. 465, sustaining a statute of a State prohibiting common carriers from bringing intoxicating liquors into the State without first having a certificate from the county auditor that the consignee is authorized to sell in the county. Guthrie, Fourteenth Am. 85-87. See also Fertilizing Co. v. Hyde Park, 97 U. S. 659. In the last case Mr. Justice Swayne says: "Per It is within the police power of the State to authorize the channel of a river to be turned or straightened, in order to protect from threatened inundation a populous portion of the State; and such work is of a public character. Green v. Swift, 47 Cal. 536. In such case the authority of the State is none the less in degree, even if the inhabitants of the district to be protected did not constitute a body politic. Ib. A power "to make and establish rules for the regulation of jut or bay windows" does not authorize the council to pass an ordinance granting permission to an individual to construct a bay window projecting beyond the building line. Reimer's Appeal, 100 Pa. St. 182. See post, $$ 1182-1184. Speaking of turnpike acts, paving acts, &c., Lord Kenyon, in the case of Governor, &c. v. Meredith, 4 Term Rep. 790, 796, says: "Some individuals suffer an inconvenience under all these acts of parliament; but the interests of individuals must give way to the accommodation of the public." And per Buller, J., in the same case: "There are many cases in which individuals sustain an injury for which the law gives no action; for instance, pulling down houses, or raising bulwarks, for the preservation and defence of the kingdom against the king's enemies." But "the law will not allow the right of property to be invaded under the guise of a police regulation for the preservation of health, when it is manifest that such is not the object and purpose of the regulation." Per Wilde, J., in Austin v. Murray, 16 Pick. 126; Green v. Savannah, 6 Ga. 1; People v. Hawley, 3 Mich. 330; Ames v. P. H. L. Co., il Mich. 139. The extent of the police power will be further discussed in the chapter on Ordinances, post. See also Cooley, Const. Lim. 572-594; Guthrie, Fourteenth Am. 52-102. How far and when cities, in executing police duties, are agents of the State, and not of the municipality. See Buttrick v. Lowell, must be, it is nevertheless subject, like all other legislative powers, to the paramount authority of the State and Federal Constitutions. A right conferred or protected by the Constitution cannot be overthrown or impaired by any authority derived from the police power. Thus the police power of the State must be exercised in subordination to the Federal Constitution, and, as was held by the Supreme Court of the United States, in respect to State laws forbidding the transportation of Texas cattle, it cannot extend to interstate transportation of the subjects of commerce.' In a subsequent case the rights claimed by a private corporation, chartered by an act of the legislature, and authorized by its charter to establish and carry on a business which was intrinsically and unavoidably a nuisance to the inhabitants in the neighborhood,3 came in conflict with the police power of the State, subsequently delegated to a municipality within whose limits the offensive and unhealthy business of the private corporation was conducted. The subject was thoroughly considered. The court did 1 Allen (Mass.), 172; Mitchell v. Rockland, 52 Me. 118, 122; 52 Me. 118; Brown v. Vinalhaven, 65 Me. 402; Keller v. Corpus Christi, 50 Tex. 614, approving text; State v. St. Louis Court, 34 Mo. 546; White v. Kent, 11 Ohio St. 550; Thomas v. Ashland, 12 Ohio St. 127; Charleston v. Payne, 2 Nott & McCord (S. Car.), 475; People v. Hurlbut, 24 Mich. 44; ante, § 103; post, §§ 480, 712. 1 Railroad Co. v. Husen, 95 U. S. 465; Guthrie, Fourteenth Am. 87. In Kimmish v. Ball, 129 U. S. 217, an Iowa statute making persons having "Texas cattle" in their possession which have not been wintered north of a certain point, liable for damages which may accrue from allowing them to run at large, and thereby spread "Texas fever," was sustained. Brimmer v. Rebman, 138 U. S. 78 (statute providing for inspection of fresh meat from animals slaughtered one hundred miles or more from place of sale held void). 2 been established there at a cost of more than two hundred thousand dollars; second, they obtained the right to establish receiving depots for receiving and carrying such matter from Chicago; and third, they obtained the right to carry such matter from their receiving depots to their converting works in Hyde Park. Under legislative authority subsequently conferred upon it the municipality of Hyde Park passed an ordinance absolutely prohibiting the transportation of offal through the village. The majority opinion sustaining the ordinance is based upon two propositions: 1. That the chartered rights of the Fertilizing Company were subject to the police power of the State, which was delegated to the municipal authorities. 2. The charter of the company is not a contract guaranteeing, in the locality originally selected, exemption for fifty years from the exercise of the police power of the State, however serious the nuisance might become in the future, by reason of the growth of population around it. Mr. Justice Miller limited his judgment to The Fertilizing Company obtained a concurrence on the second point, and by its charter from the State (which denied the first. Strong, J., dissented. was a legislative contract), for the Field, J., did not sit. Critically viewed, period of fifty years, three rights, the case is perhaps only an authoritaamong others: first, a right to estab- tive decision on the second ground, lish and maintain at a place in Cook since it is relied on in both concurring County, south of the dividing-line opinions, and is amply sufficient to between townships thirty-seven and sustain the judgment, which affirmed thirty-eight, works for converting offal that of the Supreme Court of Illinois. and animal matter; and the works had Infra, § 304. 2 Fertilizing Co. v. Hyde Park, 97 U. S. 659. not deny that by a specific contract the legislature might surrender for a limited period the right to interfere with a business which was a positive nuisance. On the ground, however, that the private corporation, when its charter, tested by the principles of strict construction applicable to such grants,' had no specific legislative authority to maintain its works on the site where they were established, if not, indeed, on the broader ground that all legislative charters to private corporations are subordinate to the police power in all cases whatsoever, or, at all events, in all cases except where it is otherwise provided by the express terms of the contract, or by what is necessarily implied, the municipal ordinances to abate the nuisance were sustained, although the corporation had erected expensive works, and the effect of enforcing the ordinance would be to prevent the further carrying on of the business in that locality. Similar results in favor of the police power as against alleged vested rights under charters have been reached in other cases.2 dens of Trinity Church were the same corporation, and that the body in question was deposited in the vault in the churchyard by the license of that corporation. A general demurrer was filed, and the case was elaborately argued. The validity of the ordinance was sustained. 1 Ante, §§ 237-239, and cases. 2 Coates v. Mayor, &c. of New York, 7 Cow. (N. Y.) 585, referred to in the case of the Fertilizing Co. v. Hyde Park, supra, and thus stated by Swayne, J.; In Coates v. Mayor, &c. of New York, 7 Cow. (N. Y.) 585, a law was enacted by the legislature of the State, on the 9th of March, 1813, which gave to the The court held that "the act under city government power to pass ordi- which it was passed was not unconstinances regulating, and if necessary tutional, either as impairing the oblipreventing, the interment of dead gation of contracts, or taking property bodies within the city; and a penalty of for public use without compensation, $250 was authorized to be imposed for but stands on the police power to make the violation of the prohibition. On regulations in respect to nuisances." the 7th of October, 1823, an ordi- It was said: "Every right, from absonance was adopted forbidding inter- lute ownership in property down to ments or the depositing of dead bodies a mere easement, is purchased and in vaults in the city south of a desig- holden subject to the restriction that nated line. A penalty was prescribed it shall be so exercised as not to infor its violation. The action was brought to recover the penalty for depositing a dead body in a vault in Trinity churchyard. A plea was interposed setting forth that the locus in quo was granted by the King of Great Britain on the 6th of May, 1697, to a corporation by the name of the "Rector and Inhabitants of the City of New York in Communion with the Protestant Episcopal Church of England," and their successors forever, as and for a churchyard and burying place, with the rights, fees, &c. ; that immediately after the grant the land was appropriated and thenceforward was used as and for a cemetery for the interment of dead bodies; that the rector and war jure others. Though at the time it § 303 (143). Prevention of Fires. The prevention of damage by fire is usually an object within the scope of municipal authority either by express grant or by the power, in a chartered town or city, to make police regulations or needful by-laws. Under such power, it may establish fire limits,' prevent the erection of wooden buildings,2 regulate the mode and removal of ashes,3 and make any other reasonable regulations to prevent and extinguish fires. Under such power the town or municipal body is authorized to appropriate money for the purchase of engines, or for the repair thereof, if to be used for the purpose of extinguishing fires therein; and this, whether they belong to the corporation or were purchased by private subscription.* sale of such property by individuals and corporations, even where the charter of the corporation cannot be altered or repealed by the legislature." This judgment was affirmed by the Supreme Court of the United States, 97 U. S. 25. The question whether certain requirements are a part of a system of police regulation adapted to aid in the protection of life and health, is properly one of legislative determination, and a court should not interfere with such determination, unless the legislature has manifestly transcended its province. Daniels v. Hilgard, 77 Ill. 640. 1 Post, § 727. 2 Post, § 727. nuisance, it is the duty of those liable at once to put an end to it. Brady v. Weeks, 3 Barb. (N. Y.) 157; post, § 682. Cemetery associations and their franchises are subject to regulation under the police power. Cemetery Ass. v. Concordia Railroad Co., 121 III. 199. So where a city had conveyed land to individuals for the purpose of erecting powder magazines thereon, and after wards passed an ordinance declaring the magazines so erected dangerous to life and property, and directing them to be removed at the expense of the owners, it was held that the ordinance was a valid exercise of the police power, and did not impair the obligation of the contract under the deed, nor was it a taking of private property without compensation. Davenport v. Richmond City, 81 Va. 636. So in the case of the Boston Beer Company, where the legislature of Massachusetts, on the 1st of February, 1827, incorporated the "Boston Beer Company," "for the purpose of manufacturing malt liquors in all their varieties in the city of Boston," &c. By an Act of June, 1869, the manufacture of malt liquors to be sold in Massachusetts, and brewing and keeping them for sale, were prohibited under penalties of fine and imprisonment and the forfeiture of the liquors to the Commonwealth. In Boston Beer Allen v. Taunton, 19 Pick. (Mass.) Co. v. Commonwealth, the Supreme 485; Hunneman v. Fire District, 37 Court of Massachusetts held that "the Vt. 40; Robinson v. St. Louis, 28 Mo. Act of 1869 did not impair the obliga- 488 (repair of engine house); Wadtions of the contract contained in the leigh v. Gillman, 12 Me. 403; Vandercharter of the claimant, so far as it bilt v. Adams, 7 Cow. 349, 352; post, relates to the sale of malt liquors, but §§ 727, 987, 1156, chap. xxxii. Text is bia ling on the claimant to the same approved. Green v. Cape May, 41 extent as on individuals. The act is N. J. L. 45. A town possesses implied in the nature of a police regulation in power, in the absence of express legisregard to the sale of a certain article lative enactment, to purchase fire of property, and is applicable to the engines. Bluffton v. Studabaker, 106 Many fires are said to be "accidental" which are the result of neglect to keep ashes in fire-proof utensils; and yet regulations for the safe keeping of ashes are seldom made, and when made, rarely enforced. Filbey v. Combe, 2 M. & W. 677; Law v. Dodd, 1 Ex. 845; Lyndon v. Stadbridge, 2 H. & N. 45. See further, Queen v Wood, 5 E. & B. 49; Guardians of Holborn Union v. Vestry of St. Leonard, Shoreditch, L. R. 2 Q. B. Div. 145; Gay v. Cadby, L. R. 2 C. P. Div. 391; Clark v. South Bend, 85 Ind. 276 (ordinance regulating the storage of straw). |