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 to him without any deduction for benefits.1

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

&c. R. R. Co., 78 Ill. 530; Atlanta v. Central R. R. Co., 53 Geo. 120; Koestenbader v. Pierce, 41 Iowa,

204.

1 Philadelphia and Reading R. R. Co. v. Yeiser, 8 Penn. St. 366; O'Connor v. Pittsburg, 18 Penn. St. 187; Aldrich v. Cheshire R. R. Co., 1 Fost. 359; Dearborn v. Boston, Concord, and Montreal R. R. Co., 4 Fost. 179; Eaton v. Boston, C. and M. R. R. Co., 51 N. H. 504; Dodge v. County Commissioners, 3 Met. 380; Brown v. Providence, W. and B. R. R. Co., 5 Gray, 35; Mason v. Kennebec and Portland R. R. Co., 31 Me. 215;

Bellinger v. N. Y. Central R. R. Co., 23 N. Y. 42; Hatch v. Vt. Central R. R. Co., 25 Vt. 49; Slatten v. Des Moines Valley R. R. Co., 29 Iowa, 148; Whitehouse v. Androscoggin R. R. Co., 52 Me. 208. A corporation appropriating property under the right of eminent domain is always liable for any abuse of the privilege or neglect of duty under the law under which they proceed. Fehr v. Schuylkill Nav. Co., 69 Penn. St. 161; Eaton v. Boston, C. and M. R. R. Co., 51 N. H. 504; Terre Haute, &c. R. R. Co. v. McKinley, 33 Ind. 274.

*CHAPTER XVI.

THE POLICE POWER OF THE STATES.

[* 572]

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.1 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 police and economy as "the due regulation and domestic order of the kingdom, whereby the inhabitants of a State, like members of a well-governed family, are bound to conform their general behavior to the rules of propriety, good neighborhood, and good manners, and to be decent, industrious, and inoffensive in their respective stations." 4 Bl. Com. 162. Jeremy Bentham, in his General View of Public Offences, has this definition: "Police is in general a system of pre

caution, either for the prevention of crimes or of calamities. Its business may be distributed into eight distinct branches: 1. Police for the prevention of offences; 2. Police for the prevention of calamities; 3. Police for the prevention of endemic diseases; 4. Police of charity; 5. Police of interior communications; 6. Police of public amusements; 7. Police for recent intelligence; 8. Police for registration." Edinburgh Ed. of Works, Part IX. p. 157.

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 wellordered 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. 84. See also Commonwealth v. Tewksbury, 11 Met. 57; Hart v. Mayor, &c. of Albany, 9 Wend. 571; New Albany and Salem R. R. Co. v. Tilton, 12

Ind. 3; Indianapolis and Cincinnati
R. R. Co. v. Kercheval, 16 Ind. 84;
Ohio and Mississippi R. R. Co. v.
McClelland, 25 Ill. 140; People v.
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 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 [* 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.2 Neither can the national government, through any of its departments or officers, assume any supervision of the police regulations of the States.

State, 15 Md. 390; Police Commis-
sioners v. Louisville, 3 Bush, 597;
Wynehamer v. People, 13 N. Y. 378;
Taney, Ch. J., in License Cases, 5
How. 583; Waite, Ch. J., in Munn v.
Illinois, 94 U. S. Rep. 113, 124.

1 Redfield, Ch. J., in Thorpe v. Rutland and Burlington R. R. Co., 27 Vt. 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 Penn. St. 80.

2 So decided in United States v. DeWitt, 9 Wall. 41, in which a section of the Internal Revenue Act of 1867- which undertook to make it a

All that the federal authority

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. On the general subject of the police power of the States, see also United States v. Reese, 92 U. S. Rep. 214; United States v. Cruikshauk, 92 U. S. Rep. 542. But the States cannot, by police regulations, interfere with the control by Congress over inter-state commerce; as, for instance, forbidding the introduction into the State of Mexican or Texan cattle at certain seasons, Hannibal, &c. R. R. Co. v. Husen, 95 U. S. Rep. 465; or forbidding discriminations between passengers, on account of color, &c., as they travel from State to State, Hall v. DeCuir, 95 U. S. Rep. 485.