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can do is to see that the States do not, under cover of this power, 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
ligation of contracts have been frequent and varied ; and it has been held without dissent that this clause does not so far
1 See this subject considered at to authorize a business within a State large in the License Cases, 5 How. which is prohibited by the State. 504, the Passenger Cases, 7 How. License Tax Cases, 5 Wall. 471, per 283, and the Slaughter-House Case, Chase, Ch. J. 16 Wall. 36. Congress has no power
remove from State control the rights and properties which depend for their existence or enforcement upon contracts, as to relieve them from the operation of such general regulations for the good government 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 In the case of Thorpe v. Rutland and road crossings, under penalty of and Burlington R. R. Co., 27 Vt. 140, paying all damages caused by their a question arose under a provision in neglect to comply with such requirethe Vermont General Railroad Law ments. .. We think the power of of 1849, which required each railroad the legislature to control existing railcorporation to erect and maintain ways in this respect may be found in fences on the line of their road, and the general control over the police of also cattle guards at all farm and the country, which resides in the lawroad crossings, suitable and sufficient making power in all free States, and to prevent cattle and other aniinals which is, by the fifth article of the from getting upon the railroad, and bill of rights of this State, expressly which made the corporation and its declared to reside perpetually and agents liable for all damages which inalienably in the legislature; which should be done by their agents or is, perhaps, no more than the enunciaengines to cattle, horses, or other tion of a general principle applicable animals thereon, if occasioned by the to all free States, and which cannot want of such fences and cattle guards. therefore be violated so as to deprive It was not disputed that this provision the legislature of the power, even by would be valid as to such corpora- express grant to any mere public or tions as might be afterwards created private corporation. And when the within the State; but in respect to regulation of the police of a city or those previously in existence, and town, by general ordinances, is given whose charters contained no such to such towns and cities, and the provision, it was claimed that this regulation of their own internal police legislation was inoperative, since is given to railroads to be carried into otherwise its effect would be to modi- effect by their by-laws and other regufy, and to that extent to violate, the lations, it is of course always, in all obligation of the charter-contract. such cases, subject to the superior • The case,” say the court, “re- control of the legislature. That is solves itself into the narrow question a responsibility which legislatures of the right of the legislature, by gen- cannot devest themselves of if they eral statute, to require all railways, would. whether now in operation or hereafter So far as railroads are concerned, to be chartered or built, to fence their this police power which resides priroads upon both sides, and provide marily and ultimately in the legislasufficient cattle guards at all farm ture is twofold: 1. The police of the [* 575] Perhaps the most striking illustrations of the princi
ple here stated will be found among the judicial decisions
roads, which, in the absence of legis- number of brakemen upon a train lative control, the corporations them- with reference to the number of cars, selves exercise over their operatives, employing intemperate or incompeand to some extent over all who do tent engineers and servants, running business with them, or come upon beyond a given rate of speed, and a their grounds, through their general thousand similar things, most of statutes, and by their officers. We which have been made the subject apprehend there can be no manner of of legislation or judicial determinadoubt that the legislature may, if they tion, and all of which may be. Hegedeem the public good requires it, of man v. Western R. Co., 16 Barb. 353. which they are to judge, and in all 6 2. There is also the general podoubtful cases their judgment is final, lice power of the State, by which perrequire the several railroads in the sons and property are subjected to all State to establish and maintain the kinds of restraints and burdens, in same kind of police which is now ob- order to secure the general comfort, served upon some of the more impor- health, and prosperity of the State; tant roads in the country for their own of the perfect right in the legislature security, or even such a police as is to do which no question ever was, or, found upon the English railways, and upon acknowledged general principles, those upon the continent of Europe. ever can be, made, so far as natural No one ever questioned the right of persons are concerned. And it is the Connecticut legislature to require certainly calculated to excite surprise trains upon all of their railroads to and alarm that the right to do the come to a stand before passing draws same in regard to railways should be in bridges; or of the Massachusetts made a serious question.” And the legislature to require the same thing court proceed to consider the various before passing another railroad. And cases in which the right of the legisby parity of reasoning may all rail- lature to regulate matters of private ways be required so to conduct them- concern with reference to the general selves as to other persons, natural or public good has been acted upon as corporate, as not unreasonably to in- unquestioned, or sustained by judicial jure them or their property. And if decisions, and quote, as pertinent to the business of railways is specially the general question of what laws are dangerous, they may be required to prohibited on the ground of impairbear the expense of erecting such ing the obligation of contracts, the safeguards as will render it ordinarily language of Chief Justice Marshall in safe to others, as is often required of Dartmouth College v. Woodward, 4 natural persons under such circum- Wheat. 518, 629, that “the framers stances.
of the Constitution did not intend to " There would be no end of illus- restrain the States in the regulation trations upon this subject. . . . It of their civil institutions, adopted for may be extended to the supervision internal government, and that the inof the track, tending switches, run- strument they have given us is not to ning upon the time of other trains, be so construed.” See, to the same running a road with a single track, effect, Suydam v. Moore, 8 Barb. using improper rails, not using proper 358; Waldron v. Rensselaer and Saraprecaution by way of safety-beams in toga R. R. Co., 8 Barb. 390 ; Galena case of the breaking of axle-trees, the and Chicago U. R. R. Co. v. Loomis, which have held * that the rights insured to private cor- [* 576] porations 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 regulations then ex- [* 577) isting, and those only, may the corporators continue to exercise their rights while the artificial existence continues. The obligation of the contract by no means extends so far; but, on the contrary, the rights and privileges which come into existence under it are placed upon the same footing with other legal rights and privileges of the citizen, and subject in like manner to proper rules for their due regulation, protection, and enjoyment.
The limit to the exercise of the police power in these cases must be this: the regulations must have reference to the comfort, safety, or welfare of society; they must not be in conflict with any of the provisions of the charter; and they must not, under pretence of regulation, take from the corporation any of the essential rights and privileges which the charter confers. In short, they must be police regulations in fact, and not amendments of the charter in curtailment of the corporate franchise. 13 Ill. 548; Fitchburg R. R. v. Grand rior, &c. R. R. Co., 21 Minn. 241; Junction R. R. Co., 1 Allen, 552; N. W. Fertilizing Co. v. Hyde Park, Veazie v. Mayo, 45 Me. 560; Peters 70 III. 634; State ». New Haven, &c. v. Iron Mountain R. R. Co., 23 Mo. Co., 43 Conn. 351. 107; Grannahan 0. Hannibal, &c. 1 Washington Bridge Co. v. State, R. R. Co., 30 Mo. 546 ; Indianapolis 18 Conn. 53; Bailey v. Philadelphia, and Cincinnati R. R. Co. v. Ker- &c. R. R. Co., 4 Harr. 389; State v. cheval, 16 Ind. 84; Galena and Chi- Noyes, 47 Me. 189; Pingrey v. Washcago U. R. R. Co. v. Appleby, 28 Ill. burn, 1 Aiken, 268; Miller v. N. Y. 283; Blair v. Milwaukee, &c. R. R. and Erie R. R. Co., 21 Barb. 513; Co., 20 Wis. 254; State v. Mathews, People v. Jackson and Michigan 44 Mo. 523; Commissioners, &c. v. Plank Road Co., 9 Mich. 307; Sloan Holyoke Water Power Co., 104 Mass. 0. Pacific R. R. Co., 61 Mo. 24; At446; Railroad Co. v. Fuller, 17 Wall. torney-General o. Chicago, &c. R. R. 560; Toledo, &c. R. R. Co. o. Dea- Co., 35 Wis. 425. In Benson v. con, 63 Ill. 91; Ames v. Lake Supe- Mayor, &c. of New York, 10 Barb.
The maxim, Sic utere tuo ut alienum non lædas, is that which lies at the foundation of the power; and to whatever enactment affecting the management and business of private corporations it cannot fairly be applied, the power itself will not extend. It has accordingly been held that where a corporation was chartered with the right to take toll from passengers over their road, a subsequent statute authorizing a certain class of persons to go
toll free was void. This was not a regulation of exist[* 578] ing rights, but it took from the corporation that * which
they before possessed, namely, the right to tolls, and conferred upon individuals that which before they had not, namely, the privilege to pass over the road free of toll. “ Powers," it is said in another case," which can only be justified on this specific ground (that they are police regulations], and which would otherwise be clearly prohibited by the Constitution, can be such only as are so clearly necessary to the safety, comfort, and well-being of society, or so imperatively required by the public necessity, as to lead to the rational and satisfactory conclusion that the framers of the Constitution could not, as men of ordinary prudence and foresight, have intended to prohibit their exercise in the particular case, notwithstanding the language of the prohibition would otherwise include it.” 2 And it was therefore held that an act subsequent to the charter of a plank-road company, and not assented to by the corporators, which subjected them to a total forfeiture of their franchises for that which by the charter was cause for partial forfeiture only, was void as impairing 245, it is said, in considering a ferry ries, to secure the safety of passengers right granted to a city: “Franchises from danger and imposition, &c. But of this description are partly of a the State cannot take away the ferries public and partly of a private nature. themselves, nor deprive the city of So far as the accominodation of pas- their legitimate rents and profits." sengers is concerned, they are publici And see People v. Mayor, &c. of New juris; so far as they require capital York, 32 Barb. 102, 116; Commonand produce revenue, they are privati wealth v. Pennsylvania Canal Co., juris. Certain duties and burdens 66 Penn. St. 41 ; Hegemen v. Western are imposed upon the grantees, who R. R., 13 N. Y. 1. are compensated therefor by the privi- 1 Pingrey r. Washburn, 1 Aiken, lege of levying ferriage and security 268. Of course the charter reserved from spoliation arising from the ir- no right to make such an amendment. revocable nature of the grant. The 3 Christiancy, J., in People v. JackState may legislate touching them, so son and Michigan Plank Road Co., 9 far as they are publici juris. Thus, Mich. 307. Compare Commonwealth laws may be passed to punish neglect v. Pennsylvania Canal Co., 66 Penn. or misconduct in conducting the fer. St. 41.