maintenance of dairies, the cultivation of land within the limits of a town,2 and the storage of cotton and other combustible material, such as oil and gunpowder, be prohibited in the densely settled parts of the city, and the prosecution of such trades be confined to certain less dangerous localities. In the same way may the sale of intoxicating liquors be prohibited in certain localities, for example, within a certain distance of the State insane asylum, university or State capitol,3 provided it be conceded that the sale of intoxicating liquors in those localities, in a legal sense, threatens an injury to the public. It has also been held to be permissible to prohibit the sale of intoxicating liquors in the residential portions of a town or city; while the business is permitted to be carried on elsewhere. The prohibition of the business of fat-rendering and bone-boiling within the limits of a city has likewise been sustained."

But in all these cases the prohibition must be confined to the removal of the evil to be guarded against. There cannot be an absolute prohibition of a trade in a locality, in which it may be prosecuted without annoyance or inconvenience to the neighboring residents. Thus it has been held to be unreasonable to prohibit the establishment of a steam engine within the limits of the city." So, also, has it been held to be unconstitutional to prohibit indiscriminately the prosecution of all kinds of busi

1 In re Linehan, 72 Cal. 114; State v. Broadbelt (Md. '99), 43 Atl. Rep. 771.

'Town of Summerville v. Pressley, 33 S. C. 56.

8

State v. Joyner, 81 N. C. 534; Ex parte McClain, 61 Cal. 436 (44 Am. Rep. 554); Dorman v. State, 34 Ala. 216; Boyd v. Bryant, 35 Ark. 69 (37 Am. Rep. 6); Trammell v. Bradley, 37 Ark. 356; Bronsin v Oberlin, 41 Ohio St. 476 (52 Am. Rep. 90).

See ante, § 125.

Shea v. City of Muncie, 148 Ind. 14.

• People v. Rosenberg, 67 Hun, 52; Fertilizing Co. v. Hyde Park, 97

U. S. 759.

Baltimore v. Redecke, 49 Md. 217 (33 Am. Rep. 239.)

ness on a certain boulevard or street. And in California, where antipathy to the Chinese has occasioned numerous hostile acts of legislation, it was held to be unconstitutional to prohibit the prosecution of the laundry business in certain localities (in that case the Chinese quarters of San Francisco), unless it can be shown that the health, comfort or safety of the community was thereby endangered.2

It has been well-established that the length of time, during which a business has been conducted in a certain locality, does not make its prohibition for the future unconstitutional. Granted the fact, that by the growth of a city, the locality has been converted into a thickly populated district, and that in consequence of such municipal growth, the health, comfort or safety of the people would be endangered by the continuance of the business in that locality, the power of the government, to prohibit the further prosecution of the objectionable business in that locality, is not at all limited or restricted by the fact that the enforced removal to another locality would entail heavy or irreparable loss upon proprietors.3

An extremely interesting and important case has recently arisen in the courts of Louisiana, which involves the exercise of the police power for the confinement of objectionable trades within a prescribed locality, and the prohibition of it elsewhere; while it at the same time raises the question of the power of the government over vice and vicious practices.

The city of New Orleans enacted an ordinance which set apart certain sections of the city within which prostitutes

1 City of St. Louis v. Dorr, 145 Mo. 465.

2 In re Hong Wah, 82 Fed. 623; Ex parte Sing Lee, 96 Cal. 354. In the latter case, it was held that the regulation was nevertheless invalid, although it provided that the business could be carried on elsewhere, with the written consent of a majority of the real property owners of the block.

3 Fertilizer Company v. Hyde Park, 97 U. S. 759; Fertilizer Company v. Malone, 73 Md. 268; Villavaso v. Barthet, 39 La. Ann. 247.

were required to live. The ordinance has been in force for some time, and recently the area of permitted habitation of that class of the population has been enlarged. The constitutionality of the ordinance was attacked principally upon two grounds: first, that the ordinance necessarily involves the licensing of trade in vice, which is not allowable; and, secondly, that the values of real estate are depreciated by the ordinance. The court denied the soundness of both arguments, and sustained the ordinance as a constitutional exercise of the police power. In rendering this judgment, the court said in part:1

"The regulation of houses of prostitution would seem to be so closely connected with public order and decency, the policy announced by the ordinance has been so long exerted in all large cities of our country, and the power has had such frequent recognition in the charters of this city, that it would seem the power itself cannot be successfully controverted. We have, however, given careful attention to the argument that urges objection to all such legislation, and which directs attention to the grounds of opposition deemed specially applicable to the ordinance, the execution of which is sought to be arrested. That there are limitations to the power asserted by this ordinance, may be conceded. It does not, however, readily occur to the mind that confining houses of this character within certain limits by the appropriate ordinance, is violative of any of the constitutional guaranties invoked in this discussion before

The ordinance neither sanctions nor undertakes to

punish vice. The power to punish vice, not in the form of an offense, denied by the argument and enforced by the authorities we find in the briefs, is, in our view, entirely distinct from the function the ordinance asserts as belonging to municipal government, by the express terms of the city charter. It is urged, too, the 1 L'Hote v. City of New Orleans, 51 La. Ann. 93.

2 City Charter 1870, § 12; Id. 1882, § 8; Id. 1896, § 15.

ordinance is a license for vice, and hence illegal.1 Undoubtedly, the court should refuse its aid to any ordinance if of the character asserted by the argument. The vice, the subject of this ordinance, beyond the reach of penal statutes, is simply subjected by this ordinance to that restraint demanded by the public interest. The unfortunate class dealt with by the ordinance must live. They are not denied shelter, but assigned that portion of the city beyond which they are not permitted to establish their houses. Thus viewed, the ordinance cannot be deemed open to the objections that it either punishes or grants a license to vice beyond the competency of the council." "There remains the argument addressed to us, varied in form, but maintaining the general proposition that the ordinance operates to deprive the citizen of his property, that is, to depreciate its value-the same as deprivation in legal effect. We can readily appreciate there might be an arbitrary exercise of this power that would warrant an appeal to the courts. Thus, to extend these limits so as to embrace, without any apparent reason, if reason could exist, portions of the city always devoted to private residences, schools, churches and other lawful uses, might well be deemed oppressive and an abuse of the power of municipal government; but as we understand this ordinance in its main features, it is restrictive that is, it confines these houses within narrower bounds. To whatever extent, however, the right of private property may be deemed affected by this last ordinance, it must be borne in mind that it is the great power of government given to preserve the morals, health, and lives of the community that requires the surrender of right by the citizens supposed to be exacted by this ordinance. To that police power all must yield obedience. As put in the text-books and enforced by all decisions:

1 Tiedeman Pol. Power, p. 291.

Every citizen holds his property subject to the proper exercise of the police power exerted either by the Legislature or by the subordinate political corporations. It is settled that police laws and regulations, though they may disturb the enjoyment of individual rights, are not unconstitutional. They do not expropriate property for public use. If the individual sustains injury it is deemed damnum absque injuria; or in the theory of the law, the injury to the owner is deemed compensated by the public benefit the regulation is designed to subserve."

The reference of the court to a preceding text of this book1 as well as the present case, should be read in connection with what is stated in the section,2 in which the distinction is made between vice and crime as subjects for police regulation, and the police jurisdiction over the former denied.

In Kentucky, a statute was enacted, forbidding any person from carrying on the stabling business within a specified distance of the grounds of a named agricultural society during the maintenance of its fairs, and imposing a penalty for the breach of the law. In a suit, brought under the statute, it could not be established that the prosecution of the business of stabling in that locality was likely to produce any public harm, and the court therefore declared the regulation to be an unconstitutional interference with the right of enjoyment of private property. But the location

of stables within a city may and is often regulated in the interest of the public health.

Another curious and questionable exercise of police power, in prohibiting objectionable trades in certain localities, is to

1 In the present edition, § 121.

2 Present edition, § 60.

* Commonwealth v. Bacon, 13 Bush, 210 (26 Am. Rep. 189); see to the same effect, Meyers v. Baker, 120 Ill. 567.

4 City of Newton v. Joyce, 166 Mass. 83.