In the present chapter we shall take occasion to speak of the police power principally as it affects the use and enjoyment of property; the object being to show the universality of its presence, and to indicate, so far as may be practicable, the limits which settled principles of constitutional law assign to its interference. No definition of the power can be more complete and satisfactory than some which have been given by eminent jurists in deciding cases which have arisen from its exercise, and which have been so often approved and adopted, that to present them in any other than the language of the decisions would be unwise, if not inexcusable. Says Chief Justice Shaw, "We think it is a settled principle, growing out of the nature of well-ordered civil society, that every holder of property, however absolute and unqualified may be his title, holds it under the implied liability that his use of it shall not be injurious to the equal enjoyment of others having an equal right to the enjoyment of their property, nor injurious to the rights of the community. All property in this Commonwealth is . . . held subject to those general regulations which are necessary to the common good and general welfare. Rights of property, like all other social and conventional rights, are subject to such reasonable limitations in their enjoyment as shall prevent them from being injurious, and to such reasonable restraints and regulations established by law as the legislature, under the governing and controlling power vested in them by the constitution, may think necessary and expedient. This is very different from the right of eminent domain, the right of a government to take and appropriate private property whenever the public exigency requires it, which can be done only on condition of providing a reasonable compensation therefor. The power we allude to is rather the police power; the power vested in the legislature by the constitution to make, ordain, and establish all manner of wholesome and reasonable laws, statutes, and ordinances, either with penalties or without, not repugnant to the constitution, as they shall judge to be for the good and welfare of the Commonwealth, and of the subjects of the same. It is much easier to perceive and realize the existence and sources of this power than to mark its boundaries, or prescribe limits to its exercise." 1 gislation assuming to confer such power would be void. On this general subject the following cases are of interest Anderdon v. Burrows, 4 C & P. 210; Fletcher v. Fletcher, 1 El. & El. 420; Colby v. Jackson, 12 N. H. 526; Look v. Dean, 108 Mass. 116; Van Deusen v. Newcomer, 40 Mich. 90; Morton v. Sims, 64 Ga. 298; In re Gannon, 18 Atl. Rep. 159 (R. I.). 1 Commonwealth v. Alger, 7 Cush. 53, 84. See also Commonwealth v. Tewksbury, 11 Met. 55; Hart v. Mayor, &c. of "This police power of the State," says another eminent judge, "extends to the protection of the lives, limbs, health, comfort, and quiet of all persons, and the protection of all property within the State. According to the maxim, Sie utere tuo ut alienum non ladas, which being of universal application, it must, of course, be within the range of legislative action to define the mode and manner in which every one may so use his own as not to injure others." And again: [By this] "general police power of the State, persons and property are subjected to all kinds of restraints and burdens, in order to secure the general comfort, health, and prosperity of the State; of the perfect right in the legislature to do which, no question ever was, or, upon acknowledged general principles, ever can be made, so far as natural persons are concerned." 1 And neither the power itself, nor the discretion to exercise it as need may require, can be bargained away by the State.2 Where the Power is located. In the American constitutional system, the power to establish the ordinary regulations of police has been left with the individual States, and it cannot be taken from them, either wholly or in part, and exercised under legislation of Congress.3 Neither can the national government, through any of its departments or officers, assume any supervision of the police regulations of the States. All that the federal authority can do is to see that the States do not, under cover of this power, Albany, 9 Wend. 571; New Albany & Salem R. R. Co. v. Tilton, 12 Ind. 3; Indianapolis & Cincinnati R. R. Co. v. Kercheval, 16 Ind. 84; Ohio & Mississippi R. R. Co. v. McClelland, 25 Ill. 140; People v. Draper, 25 Barb. 344; Baltimore v. State, 15 Md. 376; Police Commissioners v. Louisville, 3 Bush, 597; Wynehamer v. People, 13 N. Y. 378; Taney, Ch. J., in License Cases, 5 How. 504, 583; Waite, Ch. J., in Munn v. Illinois, 94 U. S. Rep. 113, 124. i Redfield, Ch. J., in Thorpe v. Rutland & Burlington R. R. Co., 27 Vt. 140, 149. See the maxim, Sic utere, &c., Enjoy your own property in such manner as not to injure that of another,". in Broom, Legal Maxims, (5th Am. ed.) p. 327; Wharton, Legal Maxims, No. XC. See also Turbeville v. Stampe, 1 Ld. Raym. 264; and 1 Salk. 13; Jeffries v. Williams, 5 Exch. 792; Humphries v. Brogden, 12 Q. B. 739; Pixley v. Clark, 35 N. Y. 520; Philadelphia v. Scott, 81 Pa. St. 80. 2 Beer Company v. Massachusetts, 97 U. S. 25, 33, citing Boyd v. Alabama, 94 U. S. 645. 8 So decided in United States v. De Witt, 9 Wall. 41, in which a section of the Internal Revenue Act of 1867—which undertook to make it a misdemeanor to mix for sale naphtha and illuminating oils, or to sell oil of petroleum inflammable at a less temperature than 110° Fahrenheit was held to be a mere police regulation, and as such void within the States. That the States may pass such laws, see Patterson v. Commonwealth, 11 Bush, 311. A license may be required for the peddling of patented articles. People v. Russell, 49 Mich. 617. On the general subject of the police power of the States, see also United States v. Reese, 92 U. S. 214; United States v. Cruikshank, 92 U. S. 542. But the States cannot, by police regulations, interfere with the control by Congress over inter-state commerce. Post, pp. 723, 724, 732, and notes. invade the sphere of national sovereignty, obstruct or impede the exercise of any authority which the Constitution has confided to the nation, or deprive any citizen of rights guaranteed by the federal Constitution.1 Conflict with Federal Authority. But while the general authority of the State is fully recognized, it is easy to see that the power might be so employed as to interfere with the jurisdiction of the general government; and some of the most serious questions regarding the police of the States concern the cases in which authority has been conferred upon Congress. In those cases it has sometimes been claimed that the ordinary police jurisdiction is by necessary implication excluded, and that, if it were not so, the State would be found operating within the sphere of the national powers, and establishing regulations which would either abridge the rights which the national Constitution undertakes to render absolute, or burden the privileges which are conferred by law of Congress, and which therefore cannot properly be subject to the interference or control of any other authority. But any accurate statement of the theory upon which the police power rests will render it apparent that a proper exercise of it by the State cannot come in conflict with the provisions of the Constitution of the United States. If the power extends only to a just regulation of rights with a view to the due protection and enjoyment of all, and does not deprive any one of that which is justly and properly his own, it is obvious that its possession by the State, and its exercise for the regulation of the property and actions of its citizens, cannot well constitute an invasion of national jurisdiction, or afford a basis for an appeal to the protection of the national authorities. Obligation of Contracts. The occasions to consider this subject in its bearings upon the clause of the Constitution of the United States which forbids the States passing any laws impairing the obligation of contracts have been frequent and varied; and it has been held without dissent that this clause does not so far remove from State control the rights and properties which depend for 1 See this subject considered at large in the License Cases, 5 How. 504, the Passenger Cases, 7 How. 283, and the Slaughter-House Case, 16 Wall. 36; People v. Compagnie Gén., 107 U. S. 59; Head Money Cases, 112 U. S. 580. The Four teenth Amendment does not limit the subjects in relation to which the police power of the State may be exercised. Barbier v. Conolly, 113 U. S. 27; Minneapolis & St. Louis Ry. Co. v. Beckwith, 129 U. S. 26, and cases cited. Congress has no power to authorize a business within a State which is prohibited by the State. License Tax Cases, 5 Wall. 462, per Chase, Ch. J. In Canada, power over sales of liquor is in the Dominion parlia ment, and, after license in pursuance of its authority, the provincial parliament cannot forbid. Severn v. The Queen, 2 Can. Sup. Ct. 71; Mayor, &c. v. The Queen, 3 Can. Sup. Ct. 505. their existence or enforcement upon contracts, as to relieve them from the operation of such general regulations for the good gov ernment of the State and the protection of the rights of individuals as may be deemed important. All contracts and all rights, it is declared, are subject to this power; and not only may regulations which affect them be established by the State, but all such regulations must be subject to change from time to time, as the general well-being of the community may require, or as the circumstances may change, or as experience may demonstrate the necessity.1 1 In the case of Thorpe v. Rutland & Burlington R. R. Co., 27 Vt. 140, a question arose under a provision in the Vermont General Railroad Law of 1849, which required each railroad corporation to erect and maintain fences on the line of its road, and also cattle-guards at all farm and road crossings, suitable and sufficient to prevent cattle and other animals from getting upon the railroad, and which made the corporation and its agents liable for all damages which should be done by its agents or engines to cattle, horses, or other animals thereon, if occasioned by the want of such fences and cattle-guards. It was not disputed that this provision would be valid as to such corporations as might be afterwards created within the State; but in respect to those previously in existence, and whose charters contained no such provision, it was claimed that this legislation was inoperative, since otherwise its effect would be to modify, and to that extent to violate, the obligation of the charter-contract. "The case," say the court, resolves itself into the narrow question of the right of the legislature, by general statute, to require all railways, whether now in operation or hereafter to be chartered or built, to fence their roads upon both sides, and provide sufficient cattleguards at all farm and road crossings, under penalty of paying all damages caused by their neglect to comply with such requirements. . . . We think the power of the legislature to control exist ing railways in this respect may be found in the general control over the police of the country, which resides in the law making power in all free States, and which is, by the fifth article of the bill of rights of this State, expressly declared to reside perpetually and inalienably in the legislature; which is, perhaps, no more than the enunciation of a general principle applicable to all free States, and which cannot therefore be violated so as to deprive the legislature of the power, even by express grant to any mere public or private corporation. And when the regulation of the police of a city or town, by general ordinances, is given to such towns and cities, and the regulation of their own internal police is given to railroads to be carried into effect by their by-laws and other regulations, it is of course always, in all such cases, subject to the superior control of the legislature. That is a responsibility which legislatures cannot devest themselves of if they would. "So far as railroads are concerned, this police power which resides primarily and ultimately in the legislature is twofold: 1. The police of the roads, which, in the absence of legislative control, the corporations themselves exercise over their operatives, and to some extent over all who do business with them, or come upon their grounds, through their general statutes, and by their officers. We apprehend there can be no manner of doubt that the legislature may, if they deem the public good requires it, of which they are to judge, and in all doubtful cases their judgment is final, require the several railroads in the State to establish and maintain the same kind of police which is now observed upon some of the more important roads in the country for their own security, or even such a police as is found upon the English railways, and those upon the continent of Europe. No one ever questioned the right of the Connecticut legislature to require trains upon all of their railroads to come to a stand before passing draws in bridges; or of the Massachusetts legislature to require the same thing before passing another railroad. And by parity of reasoning may all rail Perhaps the most striking illustrations of the principle here stated will be found among the judicial decisions which have held the rights insured to private corporations by their charters, and the manner of their exercise, are subject to such new regulations as from time to time may be made by the State with a view to the public protection, health, and safety, and in order to guard properly the rights of other individuals and corporations. Although these charters are to be regarded as contracts, and the rights assured by them are inviolable, it does not follow that these rights are at once, by force of the charter-contract, removed from the sphere of State regulation, and that the charter implies an undertaking, on the part of the State, that in the same way in which their exercise is permissible at first, and under the regula ways be required so to conduct themselves as to other persons, natural or corporate, as not unreasonably to injure them or their property. And if the business of railways is specially dangerous, they may be required to bear the expense of erecting such safeguards as will render it ordinarily safe to others, as is often required of natural persons under such cir cumstances. "There would be no end of illustrations upon this subject. . . . It may be extended to the supervision of the track, tending switches, running upon the time of other trains, running a road with a single track, using improper rails, not using proper precaution by way of safetybeams in case of the breaking of axletrees, the number of brakemen upon a train with reference to the number of cars, employing intemperate or incompetent engineers and servants, running beyond a given rate of speed, and a thousand similar things, most of which have been made the subject of legislation or judicial determination, and all of which may be. Hegeman v. Western R. Co., 16 Barb. 353. "2. There is also the general police power of the State, by which persons and property are subjected to all kinds of restraints and burdens, in order to secure the general comfort, health, and prosperity of the State; of the perfect right in the legislature to do which no question ever was, or, upon acknowleged general principles, ever can be, made, so far as natural persons are concerned. And it is certainly calculated to excite surprise and alarm that the right to do the same in regard to railways should be made a serious question." And the court proceed to consider the various cases in which the right of the legislature to regulate matters of private concern with reference to the general public good has been acted upon as unquestioned, or sustained by judicial decisions; and quote, as pertinent to the general question of what laws are prohibited on the ground of impairing the obligation of contracts, the language of Chief Justice Marshall in Dartmouth College v. Woodward, 4 Wheat. 518, 629, that "the framers of the Constitution did not intend to restrain the States in the regulation of their civil institutions, adopted for internal government, and that the instrument they have given us is not to be so construed." See, to the same effect, Suydam v. Moore, 8 Barb. 358; Waldron v. Rensselaer & Saratoga R. R. Co., 8 Barb. 390; Galena & Chicago U. R. R. Co. v. Loomis, 13 Ill. 548; Fitchburg R. R. v. Grand Junction R. R. Co., 1 Allen, 552; Veazie v. Mayo, 45 Me. 560; Peters v. Iron Mountain R. R. Co., 23 Mo. 107; Grannahan . Hannibal, &c. R. R. Co., 30 Mo. 546; Indianapolis & Cincinnati R. R. Co. v. Kercheval, 16 Ind. 84; Galena & Chicago U. R. R. Co. v. Appleby, 28 Ill. 283; Blair v. Milwaukee, &c. R. R. Co., 20 Wis. 254; State v. Mathews, 44 Mo. 523; Commissioners, &c. v. Holyoke Water Power Co., 104 Mass. 446; Railroad Co. v. Fuller, 17 Wall. 560; Toledo, &c. R. R. Co. v. Deacon, 63 Ill. 91; Ames v. Lake Superior, &c. R. R. Co., 21 Minn. 241; N. W. Fertilizing Co. v. Hyde Park, 70 Ill. 634; State v. New Haven, &c. Co., 43 Conn. 351. |