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also those incidental injuries to other property, such as would not give to other persons a right to compensation, while allowing those which directly affect the value of the remainder of the land not taken ; such as the necessity for increased fencing, and the like. And if an assessment on these principles makes the benefits equal the damages, and awards the owner nothing, he is nevertheless to be considered as having received full compensation, and consequently as not being in position to complain.3 But in some States, by constitutional provision or by statute, the party whose property is taken is entitled to have the value assessed him without any deduction for benefits.

compensation for the land taken R. R. Co., 46 Penn. St. 520; Winona must be made in money. Sutton o. and St. Peter's R. R. Co. v. Denman, Louisville, 5 Dana, 28; Rice v. Turn- 10 Minn. 267; Mount Washington pike Co., 7 Dana, 81; Jacob v. Co.'s Petition, 35 N. H. 134. Where Louisville, 9 Dana, 114. And some

a part of a meeting-house lot was other States have established, by their taken for a highway, it was held that constitutions, the rule that benefits the anticipated annoyance to worshall not be deducted. See Deaton shippers by the use of the way by r. County of Polk, 9 Iowa, 596; noisy and dissolute persons on the Giesy v. Cincinnati, W. and Z. R. R. Sabbath could form no basis for any Co., 4 Ohio, n. s. 308; Woodfolk v. assessment of damages. First Parish Nashville R. R. Co., 2 Swan, 422. in Woburn v. Middlesex County, 7 But the cases generally adopt the Gray, 106. doctrine stated in the text; and if 8 White v. County Commissioners the owner is paid his actual damages, of Norfolk, 2 Cush. 361; Whitman he has no occasion to complain be- v. Boston and Maine R. R. Co., 3 cause his neighbors are fortunate Allen, 133; Nichols v. Bridgeport, enough to receive a benefit. Green- 23 Conn. 189. But it is not compeville and Columbia R. R. Co. v. tent for the commissioners who assess Partlow, 5 Rich. 438; Mayor, &c. of the compensation to require that Lexington v. Long, 31 Mo. 369. which is to be made to be wholly

1 Somerville, &c. R. R. Co. ads. or in part in any thing else than Doughty, 22 N. J. 495; Dorlan v. East money. An award of " one hundred Brandywine, &c. R. R. Co., 46 Penn. and fifty dollars, with a wagon-way St. 520; Proprietors, &c. v. Nashua and stop for cattle,” is void, as unand Lowell R. R. Co., 10 Cush. 385; dertaking to pay the owner in part in Louisville and Nashville R. R. Co. v. conveniences to be furnished him, Thompson, 18 B. Monr. 735; Winona and which he may not want, and and St. Peter's R. R. Co. v. Denman, certainly cannot be compelled to take 10 Minn. 267.

instead of money.

Central Ohio Pennsylvania R. R. Co. v. Reiley, R. R. Co. v. Holler, 7 Ohio, N. s. 225. 8 Penn. St. 445; Greenville and Co. See Rockford, &c. R. R. Co. v. Coplumbia R. R. Co. v. Partlow, 5 Rich. pinger, 66 Ill. 510. 439; Dearborn v. Railroad Co., 4 Fost. 4 Wilson v. Rockford, &c. R. R. 179; Carpenter v. Landaff, 42 N. H. Co., 59 Ill. 273; Carpenter v. Jen220; Dorlan v. East Brandywine, &c. nings, 77 III. 250 ; Todd v. Kankakee,

.

The statutory assessment of compensation will cover all consequential damages which the owner of the land sustains by

means of the construction of the work, except such as [* 571] may result from * negligence or improper construction,

and for which an action at the common law will lie, as already stated.

&c. R. R. Co., 78 nl. 530; Atlanta Bellinger o. N. Y. Central R. R. Co., 0. Central R. R. Co., 53 Geo. 120; 23 N. Y. 42; Hatch v. Vt. Central Koestenbader v. Pierce, 41 lowa, R. R. Co., 25 Vt. 49; Slatten v. Des 204.

Moines Valley R. R. Co., 29 Iowa, 1 Philadelphia and Reading R. R. 148; Whitehouse v. Androscoggin Co. v. Yeiser, 8 Penn. St. 366; R. R. Co., 52 Me. 208. A corporaO'Connor v. Pittsburg, 18 Penn. St. tion appropriating property under the 187; Aldrich v. Cheshire R. R. Co., right of eminent domain is always 1 Fost. 359; Dearborn 0. Boston, liable for any abuse of the privilege Concord, and Montreal R. R. Co., 4 or neglect of duty under the law unFost. 179; Eaton v. Boston, C. and M. der which they proceed.

Fehr v. R. R. Co., 51 N. H. 504; Dodge o. Schuylkill Nav. Co., 69 Penn. St. 161; County Commissioners, 3 Met. 380; Eaton v. Boston, C. and M. R. R. Co., Brown v. Providence, W. and B. R. R. 51 N. H. 504; Terre Haute, &c. R. R. Co., 5 Gray, 35; Mason v. Kennebec Co. v. McKinley, 33 Ind. 274. and Portland R. R. Co., 31 Me. 215;

* CHAPTER XVI.

[*572)

THE POLICE POWER OF THE STATES.

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WHEN questions arise of conflict between national and State authority, and questions whether the State exceeds its just powers in dealing with the property and restraining the actions of individuals, it often becomes necessary to consider the extent and proper bounds of a power in the States, which, like that of taxation, pervades every department of business and reaches to every interest and every subject of profit or enjoyment. We refer to what is known as the police power.

The police of a State, in a comprehensive sense, embraces its whole system of internal regulation, by which the State seeks not only to preserve the public order and to prevent offences against the State, but also to establish for the intercourse of citizen with citizen those rules of good manners and good neighborhood which are calculated to prevent a conflict of rights, and to insure to each the uninterrupted enjoyment of his own, so far as is reasonably consistent with a like enjoyment of rights by others.

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,

1 Blackstone defines the public caution, either for the prevention of police and economy as " the due crimes or of calamities. Its business regulation and domestic order of the may be distributed into eight distinct kingdom, whereby the inhabitants of branches: 1. Police for the prevention a State, like members of a well-gov- of offences; 2. Police for the prevenerned family, are bound to conform tion of calamities; 3. Police for the their general behavior to the rules of prevention of endemic diseases; 4. Popropriety, good neighborhood, and lice of charity; 5. Police of interior good manners, and to be decent, in- communications; 6. Police of public dustrious, and inoffensive in their amusements; 7. Police for recent inrespective stations.” 4 Bl. Com. 162. telligence; 8. Police for registration.” Jeremy Bentham, in his General View Edinburgh Ed. of Works, Part IX. of Public Offences, has this definition: p. 157. “ Police is in general a system of pre

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 (* 573] 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

1 Commonwealth v. Alger, 7 Cush. Ind. 3; Indianapolis and Cincinnati 84. See also Commonwealth v. Tewks- R. R. Co. v. Kercheval, 16 Ind. 84; bury, 11 Met. 57 ; Hart v. Mayor, &c. Ohio and Mississippi R. R. Co. v. of Albany, 9 Wend. 571; New Albany McClelland, 25 Ill. 140; People . and Salem R. R. Co. 0. Tilton, 12 Draper, 25 Barb. 374; Baltimore v.

*

“ 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, Sic utere tuo ut alienum non lædas, 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 [*574] 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

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. 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 State, 15 Md. 390; Police Commis- misdemeanor to mix for sale naphtha sioners v. Louisville, 3 Bush, 597; and illuminating oils, or to sell oil of Wynehamer v. People, 13 N. Y. 378; petroleum inflammable at a less temTaney, Ch. J., in License Cases, 5 perature than 110° Fahrenheit How. 583; Waite, Ch. J., in Munn v. held to be a mere police regulation, Illinois, 94 U. S. Rep. 113, 124. and as such void within the States.

i Redfield, Ch. J., in Thorpe v. That the States may pass such laws, Rutland and Burlington R. R. Co., see Patterson v. Commonwealth, 11 27 Vt. 149. See the maxim, Sic Bush, 311. On the general subject utere, &c., Enjoy your own prop- of the police power of the States, see erty in such manner as not to injure also United States v. Reese, 92 U, S. that of another," – in Broom, Legal Rep. 214; United States v. CruikMaxims (5th Am. ed.), p. 327; Whar- shank, 92 U. S. Rep. 542. But the ton, Legal Maxims, No. XC. See also States cannot, by police regulations, Turbeville v. Stampe, 1 Ld. Raym. 264, interfere with the control by Congress and 1 Salk. 13; Jeffries v. Williams, 5 over inter-state commerce; as, for Exch. 792 ; Humphries v. Brogden, 12 instance, forbidding the introduction Q. B. 739 ; Pixley v. Clark, 35 N. Y. into the State of Mexican or Texan 520; Philadelphia v. Scott, 81 Penn. cattle at certain seasons, Hannibal, St. 80.

&c. R. R. Co. v. Husen, 95 U. S. Rep. 2 So decided in United States v. 465; or forbidding discriminations beDe Witt, 9 Wall. 41, in which a sec- tween passengers, on account of color, tion of the Internal Revenue Act of &c., as they travel from State to State, 1867 — which undertook to make it a Hall v. DeCuir, 95 U. S. Rep. 485.

was

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