individual for the purpose of increasing the revenues of the city or State, although the public treasury may be benefited incidentally by the exaction of a license fee. It is a police regulation, which is only justifiable when it is instituted to avert or regulate some threatened public injury. And the regulation must be reasonable, and one which can be complied with by any one having the requisite means. Where, for example, the regulation is prompted by the spirit of hostility to a class, such as the Chinese are esteemed in California, and is so framed as to exclude them and not others from pursuing lawful and harmless business, such as laundering, the regulation will be declared to be void, because it is unreasonable and goes beyond the requirements of the public welfare. Thus, a town ordinance prescribed that no one shall carry on the business of laundering, except in certain blocks therein named, without the permit of the board of trustees, and prohibited the issue of the permit, unless the person applying for it shall have obtained the consent of a majority of the property owners on the block, in which it is proposed that the business shall be conducted. The ordinance was held to be unreasonable and unconstitutional.1

While it is probably true that a license tax, as a tax, in the absence of special constitutional restrictions, may be imposed upon a particular use of lands, as upon certain trades and occupations, which are in no way likely to prove harmful to the public; the license tax must be tested by the consideration of the constitutional restrictions upon the power of taxation; and where a municipal corporation has not the power under its charter to impose a license tax as a tax, it cannot impose it as a police regulation upon those who do not make use of their lands in any dangerous manner.2

1 Ex parte Sing Lee, 96 Cal. 354.

2 State v. Hoboken, 33 N. J. 280. In this case the ordinance directed that owners of land should be assessed a certain amount for the

§ 154. Improvement of property at the expense and against the will of the owner. It has long been an established rule of law, and it is still so in the absence of a modifying statute, that the owner of lands is not responsible for any annoyance or discomfort, proceeding from some natural cause, and not from the act of some individual; and he cannot be made to respond in damages for his failure to remove the cause of annoyance, even though the public health of the neighborhood is seriously affected. Thus the owner of swamp lands cannot be held responsible for the injury to the health of the neighbors, caused by the deadly exhalations of his swamp. The owner of land is responsible for the injury or annoyance flowing from the construction of artificial swamps, and the keeping of stagnant water; but he is, independently of statute, under no obligation to drain a natural swamp, in order to improve the public health of the community. It cannot be questioned that the owner of swamps or other unhealthy lands may be compelled to allow them to be drained, and to be otherwise cleared of things which affect the public. For while the owner of lands is not responsible for the continuance of a natural nuisance, he has no indefeasible right to its continuance; and the State may remove such a nuisance, with or without the owner's consent, provided the expense of removing it is borne by the State and not imposed upon the owner. In many of the States, statutory provisions have been made for the compulsory drainage of swamp lands, and the only cause for disputing the constitutionality of such legislation is the provision that the entire cost of drainage shall be imposed upon the owner. The constitutionality of such legislation has, as a reasonable exercise of

privilege of building vaults in front of their dwellings. It was held to be no license in the sense of being a police regulation, and, as a license tax, it could not be referred to the charter power to "regulate" the construction of such vaults. But see ante, § 119.

1 Reeves v. Treasurer, 8 Ohio St. 333.

the police power of the State, been generally sustained,1 on the general ground that the State may impose upon the owner the duty of draining his low lands, in consideration of the consequent increase in the value of his lands. The Supreme Court of Wisconsin justifies such legislation in the following language: "It would seem to be most reasonable that the owners of the lands drained and reclaimed should be assessed to the full extent, at least of his special benefits, for he has received an exact equivalent and a full pecuniary consideration therefor, and that which is in excess of such benefits should be paid on the ground that it was his duty to remove such an obvious cause of malarial disease and prevent a public nuisance. The duty of one owner of such lands is the duty of all, and in order to effectually enter upon and carry out any feasible system of drainage through the infected district, all such owners may be properly grouped together to bear the general assessment for the entire cost proportionably. Assessment in this and similar cases is not taxation." The cases generally sustain the position of the Wisconsin court, and justify the imposition upon the owner of the entire cost of drainage, whether it exceeds or falls within the special benefits he receives from the drainage; but in New Jersey it has been definitely settled that the assessment upon land owners for the drainage of the low lands must be limited to the amount of special

2

1 Donnelly v. Decker, 58 Wis. 461 (46 Am. Rep. 637); Norfleet v. Cromwell, 70 N. C. 634 (16 Am. Rep. 787); Anderson v. Kerns, 14 Ind. 199; O'Reilly v. Kankakee Val. Draining Co., 32 Ind. 169; Draining Co. Case, 11 La. Ann. 338; Woodruff v. Fisher, 17 Barb. 224; French v. Kirkland, 1 Paige, 111; Williams v. Mayor of Detroit, 2 Mich. 560; Phillips v. Wickham, 1 Paige, 590; Sessions v. Crunkleton, 20 Ohio St. 349; Bancroft v. Cambridge, 126 Mass. 438; Dingley v. Boston, 100 Mass. 544; Davidson v. New Orleans, 96 U. S. 97; Wurts v. Hoagland, 114 U. S. 606; Horbach v. City of Omaha, 54 Neb. 83; Hadgar v. Supervisors, 47 Cal. 222; Yeomans v. Riddle, 84 Iowa, 147; Fries v. Brier, 111 Ind. 65; Laverty v. State, 109 Ind. 217; Petition of Cheesebrough, 78 N. Y. 235; Smith v. Carlow, 114 Mich. 67.

2 Donnelly v. Decker, 58 Wis. 461 (46 Am. Rep. 637).

benefits so imparted to them, and any additional assessment is unconstitutional.1 All the cases agree that the compulsory drainage is never justifiable except when the public health requires it. It can never be ordered purely for private gain." "

If it be conceded that the owners of low lands are under a legal obligation to remove from their lands all natural as well as artificial causes of injury to the public health, it

1 Pequest Case, 41 N. J. L. 175; Tidewater Co. v. Coster, 3 C. E. Green, 518; State v. Driggs Drainage Co., 45 N. J. L. 91. "The owners of these lands could not be convicted of maintaining a public nuisance because they did not drain them; even though they were not the owners of the lands upon which the obstructions are situated. It does not appear by the act or the complaint that the sickness to be prevented prevails among inhabitants of the wet lands, nor whether these lands will be benefited or injured by draining; and certainly, unless they will be benefited, it would seem to be partial legislation to tax a certain tract of land, for the expense of doing to it what did not improve it, merely because, in a state of nature, it may be productive of sickness." Woodruff v. Fisher, 17 Barb. 224.

2 State v. Driggs Drainage Co., 45 N. J. L. 91. In Woodruff v. Fisher, 17 Barb. 224, the court say: "If the object to be accomplished by this statute may be considered a public improvement, the power of taxation seems to have been sustained upon analogous principles. Citing People v. Mayor, etc., of New York, 4 N. Y. 419; Thomas v. Leland, 24 Wend. 65; Livingston v. Mayor, etc., of New York, 8 Wend. 85 (22 Am. Dec. 622). But if the object was merely to improve the property of individuals, I think the statute would be void, although it provided for compensation. The water privileges on Indian River cannot be taken or affected in any way solely for the private advantage of others, however numerous the beneficiaries. Several statutes have been passed for draining swamps, but it seems to me that the principle above advanced rests upon natural and constitutional law. The professed object of this statute is to promote public health. And one question that arises is, whether the owners of large tracts of land in a state of nature can be taxed to pay the expense of draining them, by destroying the dams, etc., of other persons away from the drowned lands, and for the purposes of public health. This law proposes to destroy the water power of certain persons against their will, to drain the land of others, also, for all that appears against their will; and all at the expense of the latter, for this public good. If this taxation is illegal, no mode of compensation is provided, and all is illegal." See Priewe v. Wisconsin State Land and Improvement Co., 93 Wis. 534.

cannot be denied that the State may, by appropriate legislation, compel the performance of this duty; and if the land owner refuses to drain his land, to drain it for him and compel him to reimburse the State for the entire cost of drainage, whatever relation it bears to the increase in the value of the land. The burdensome character of the duty does not affect the obligation to perform it, and it would not be unconstitutional to impose upon the land owner the payment of the costs of drainage, in excess of the special benefits he has received from the improvement. On the other hand, if it be true that there is no natural obligation upon the land owner to remove from his land all nuisances produced by natural causes, the entire cost of compulsory drainage cannot be imposed by statute upon those who own such lands at the time when the statute was enacted. The State may in the grant of its public lands impose upon the purchaser whatever conditions and duties the public welfare may seem to demand; and so, likewise, may the State provide that all future purchasers of swamps and other low lands shall drain them of the stagnant water, for in both cases there is no interference with vested rights, which our constitutions prohibit. But it is an unconstitutional interference with vested rights, to impose this statutory obligation upon those who possess such lands when the statute was adopted. Providing for the limitation of the assessment on the land owner to the amount of special benefit received by him from the drainage, is an attempt to make an equitable adjustment of what would otherwise be a clear violation of the rights of property; but it is altogether illogical and untenable. It is as much a violation of the rights of property to compel the owner to pay for improvements to his lands, which he did not order and does not want, as to impose on him the entire cost of removing a natural nuisance, which it was not his duty to abate. The State has the right, either to impose on the land owner the payment of the entire cost of drainage, or to exact nothing.