the water analyzed at the place where it is drawn into the mains through which it is conveyed to the city, and it appears by the evidence in the case that a chemical and oacteriological analysis could have been made which would have ascertained, with a reasonable degree of certainty at least, whether the water had been corrupted at the intake by the sewage and waste material deposited in the stream at defendant's mill. There is proof on the part of the defendant that there are so many obstructions in the way of the passage of deleterious matter from. the site of the mill to the intake and so many natural means presented for the renewal and purification of the stream by the influx of great quantities of fresh and pure water from its tributaries and by sedimentation, as to make it improbable, if not impossible, that any deadly germs could "survive the journey" for so many miles between the two points on the river. The only evidence offered in answer to the proof introduIced by the defendant and the inference to be fairly drawn from the failure to make a prop. er analysis to establish the contention which seems susceptible of demonstration in that way, are the opinions of several physicians and one or two laymen, to the effect that the pollution at the outlet of the defendant's sewer will injuriously affect the water at the intake and endanger the health of the citizens of Durham who use the water taken from the river. Opinions of this kind are of the highest value under certain circumstances, but the law requires something more tangible and definite as a basis for seriously interfering with important industrial enterprises. In a case somewhat similar to this, in which just such proof was relied on, the court said: "Speaking with all possible respect to the scientific gentlemen who have given their evidence, we think that in cases of this nature much more weight is due to the facts which are proved than to conclusions drawn from scientific investigations. The conclusions to be drawn from scientific investigations are, no doubt, in such cases of great value in aid of or in explanation or qualification of the facts which are proved, but in our judgment it is upon the facts which are proved, and not upon conclusions, we ought in these cases to rely. In our view, therefore, the scientific evidence ought to be considered as secondary only to the evidence as to the facts." Goldsmith v. Turnbridge Wells Co., 1 Ch. App. 349. That case was reviewed at length and approved in Newark Aqueduct Board v. Passaic, supra, where a most learned discussion of the subject will be found, and the same may be said of Mayor v. Warren Mfg. Co., supra, where Judge Alvey, who delivered the opinion of the court, states with his usual clearness and force the true principles and grounds upon which the courts proceed in such cases as the

one we have under consideration. See, also, Missouri v. Illinois, 180 U. S. 208, 21 Sup. Ct. 331, 45 L. Ed. 497; Atty. Gen. v. Mayor, 45 L. J. 736. The injury here is entirely prospective, and it is only possible to form an opinion upon evidence which does not enable us to do more than conjecture whether the apprehension of the plaintiffs is well grounded and free from reasonable doubt. So far as the present state of the proof goes, the jurisdiction of a court of equity is invoked to restrain that which is alleged may, or at the most will, create a nuisance, and not that which, in fact, does create a nuisance. Missouri v. Ill. (U. S.) 26 Sup. Ct. 331, 45 L. Ed. 497; Dorsey v. Allen, 85 N. C. 358, 39 Am. Rep. 704. But if the court should interfere by injunction where it is merely probable that a nuisance will result from the acts of the defendant, we do not think the plaintiffs have sufficiently brought their case within the operation of this rule. Ellison v. Commissioners, 58 N. C. 57, 75 Am. Dec. 430; Barnes v. Calhoun, 37 N. C. 199; Simpson v. Justice, 43 N. C. 115; Vickers v. Durham, 132 N. C. 880, 44 S. E. 685; Dorsey v. Allen. supra; Stockton v. Railroad, 50 N. J. Eq. 80, 24 Atl. 964, 17 L. R. A. 97.

Proof easily accessible to the plaintiffs and which would have established the fact of nuisance beyond any doubt was not produced, but the court is urged to resort to evidence of a secondary and less satisfactory nature upon which to determine the important rights of the parties. Under the facts and circumstances as disclosed by the record, we would have been obliged to reverse the ruling of the court below and leave the plaintiffs to the necessity of making good their allegation of nuisance at the hearing, in order to entitle themselves to injunctive relief, and this course would be pursued if we were confined in our investigation of this case to the mere fact of nuisance. But we are not so restricted, as the Legislature has spoken upon the subject of this controversy, and it is our duty to give due heed to what it has said. Its declared will is the law and must be enforced, if it has been sufficiently expressed or by fair construction it can be ascertained. The Legislature, by chapter 670, p. 857. Laws 1899, undertook to protect public water supplies from contamination by providing for a thorough system of inspection and the adop tion of such sanitary measures as would be likely to contribute to that end. This law contained no provision as to the discharge of sewage into any streams of the state from which a public water supply is taken, but simply related to the subjects of inspection and sanitation. Believing that such a system was not adequate to the full protection of the people of this state from contamination of the water used for drinking and other domestic purposes, the Legislature passed another act, it being chapter 159, p. 182, Laws 1903, ent:

tled, as the former act, "An act to protect water supplies." This act contained all of the features of the act of 1899, and provided generally, in section 1, that water companies should take reasonable precautions to insure the purity of water supplied to the public. It is provided in section 2, that companies which are supplied from lakes, ponds, or small streams not more than 15 miles in length shall at their own expense have a sanitary inspection of their entire watershed not less than once in every three calendar months, and special inspections when circumstances seem to require them. It then directs how the inspection shall be made, namely, by a particular examination of the premises of every inhabitant of the watershed and a search in passing from house to house for dead bodies of animals or the accumulation of filth, excepting uninhabited fields and wooded tracts which are free from suspicion. Where the supply of water is drawn from rivers or large creeks having a minimum daily flow of 10,000,000 gallons, the provisions of section 2 shall apply only to the 15 miles of watershed draining into the said river or creek next above the intake of the water company. Provision is then made for an inspection by every city or town having a public water supply of its entire watershed, and it is declared to be a misdemeanor to deposit dead animals or human excreta on the watershed of any water supply or to defile, corrupt, or pollute any well, spring, drain, branch, brook, creek, or other source of a public water supply. Then follows section 13 of the act, which is as follows: "No person or municipality shall flow or discharge sewage into any drain, brook, creek or river from which a public drinking water supply is taken, unless the same shall have been passed through some well-known system of sewage purification approved by the State Board of Health; and the continual flow and discharge of such sewage may be enjoined upon application of any person." This act has been inserted in the Revisal as chapter 76, and is not materially different, as there found, from what it was in the original form. The provision in regard to the flowing or discharging of sewage into a stream from which a public water supply is taken seems to be very explicit and susceptible of but one construction.

The defendant contends: (1) That section 13, c. 159, p. 185, of the Acts of 1903, being section 3051 of the Revisal of 1905, applies only to sewers maintained within the distance of 15 miles above the intake, which is the watershed, as defined in the second and third sections of chapter 159, p. 183, of the act, and section 3045 and 3046 of the Revisal of 1905. (2) That if the provision of section 13 is construed to apply to this defendant whose mill is situated 17 miles above the intake of the Durham Water Company, then

it is unconstitutional and void as being, in effect, a taking of the defendant's property without condemnation and without compensation; in other words, it is confiscation. We cannot assent to either of these propositions. If we could think that the acts of the defendant are not within the inhibition of that law or that its property is about to be unlawfully taken or interfered with, we would not hesitate to interpose and protect it against such contemplated action. But the meaning of the Legislature is so clear to us and its power thus to legislate is so well established that we could not so act without plainly disregarding the mandate of the lawmaking body given in the rightful exercise of its constitutional power.

As to the defendant's first contention, it is clear that by the second and third sections of the act the Legislature intended to establish a watershed solely for the purpose of inspection. This is to be deduced from the very language in those sections and, further, it appears from the manner in which the inspection is required to be made that sewage was not the source of infection or pollution intended to be guarded against by the inspection of the watershed. It is plainly excluded by the very terms of those two sections. At least it so appears to us. But if there could be any doubt as to the true meaning of that part of the act, we think that section 13 (Revisal 1905, § 3051), which is quoted above, is so broadly worded as to absolutely preclude the construction that the Legislature intended to limit the acts therein prohibited to be done to the watershed of 15 miles above the intake. We can give to that section no other meaning, unless we read into it something that is not there and clearly not intended to be there. The act forbidden is "the flow or discharge of sewage into any river from which a public drinking supply is taken," unless purified as therein provided. It does not confine its operation to the watershed, but extends to any stream from which water is taken to be supplied to the public for drinking purposes. To limit its scope as suggested would be to defeat the clearly expressed intent of the Legislature, and this we are not permitted to do. We entertain no doubt as to what was intended, and we are constrained to hold that the admitted acts of the defendant are within the prohibition of the statute.

The second position is equally untenable. It will be observed by reading the act that it is not required that the sewage discharged into the stream should injuriously affect the water at the intake; it is quite sufficient if it pollutes the river at the sewer's outlet. The Legislature has decided that it is desirable to preserve our natural streams in at least their present state of purity, and, where they have been polluted, to remove the cause as speedily and effectually as possible. It

has therefore said that no person shall deteriorate the water at all by sending sewage into a natural stream, until it has been purified and made wholesome, or until all the noxious matter in it has been eliminated. And this means, of course, that the water shall not be poisoned by sewage at the outfall. We must assume that the defilement of the water is an injury which is forbidden by the Legislature for perfectly good and sufficient reasons. It is not for us to question the policy or expediency of such an enactment. In this respect the Legislature has a large discretion, to be exercised in such way as will, in its judgment, promote the interests and advance the welfare of the people, and it has this discretion to such an extent as to be virtually a law unto itself so far as the manner of its exercise is concerned. Such legislation is not intended merely to abate an existing nuisance, but to prevent that being done which is a menace to the public health, and which it is supposed may become a deadly peril and a public nuisance because fatal in its consequences. It is not, therefore, a void law because it is founded upon mere apprehension of evil, but is a precautionary measure which is clearly within the police power of the state and to be adopted when deemed necessary to secure the public health. We think the general principles we have thus stated will be found clearly stated by Sir George Jessel, for the court, and supported by cogent reasoning, in Attorney General v. Cockermouth Local Board, L. R. 18 Eq. 172. That case and this one are not unlike in the facts to which the principle was applied.

But a more elaborate treatment of the doctrine in its relation to the police power as its basis will be found in State v. Wheeler, 44 N. J. Law, 88. The facts in that case were also like those we now have before us in this record. The language of Judge Magie, speaking for the court, would seem to have been uttered with reference to the facts we have here, did we not know that it was actually used in another case. Its appositeness must be our apology for quoting copiously from that case. The court says: "The whole act plainly shows a design to protect from pollution the waters of creeks, etc., used as the feeders for reservoirs for public use, without any reference to whether such pollution, in fact, appreciably affects the waters when arrived at the reservoir. Nor does such a construction render this act objectionable. The design of the act is not to take property for public use, nor does it do so within the meaning of the Constitution. It is intended to restrain and regulate the use of private property so as to protect the common right to all the citizens of the state. Such acts are plainly within the police power of the Legislature, which power is the mere application to the whole community of the

maxim 'Sic utere tuo ut alienum non lædas. Nor does such a restraint, although it may interfere with the profitable use of the property by its owner, make it an appropriation to a public use so as to entitle him to compensation. Of the right of the Legislature thus to restrain the use of private property in order to secure the general comfort, health, and prosperity of the state, 'no question ever was or, upon acknowledged general principles, ever can be made, so far as natural persons are concerned.' Redfield, C. J., in Thorpe v. Rutland R. R., 27 Vt. 149, 62 Am. Dec. 625. The same view has been always held in this state, and notably in the case of State v. Common Pleas of Morris, 36 N. J. Law, 72, 13 Am. Rep. 422. It was also there held that the extent to which such interference with the injurious use of property may be carried is a matter exclusively for the judgment of the Legislature, when not controlled by fundamental law. Nor is there anything to render such legislation objectionable because in some instances it may restrain the profitable use of private property, when such use, in fact, does not directly injure the public in comfort ог health. For to limit such legislation to cases where actual injury has occurred would be to deprive it of it most effective force. Its design is preventive, and to be effective it must be able to restrain acts which tend to produce public injury. Many instances of such an exercise of this power can be found. The state regulates the use of property in intoxicating liquors by restraining their sale, not on the ground that each particular sale does injury, for then the sale would be prohibited, but for the reason that their unrestricted sale tends to injure the public morals and comfort. The state is not bound to wait until contagion is communicated from a hospital established in the heart of a city. It may prohibit the establishment of such a hospital there, because it is likely to spread contagion. So the keeping of dangerous explosives and inflammable substances, and the erection of buildings of combustible materials within the limits of a dense population, may be prohibited. because of the probability or possibility of public injury. Such instances might be indefinitely multiplied, but these are sufficient to illustrate this case. The object of this legislation is to protect the public comfort and health. For that purpose the Legislature may restrain any use of private property which tends to the injury of those public interests. That the pollution of the sources of the public water supply does so tend, no one will deny."

We might well content ourselves with stopping here and resting our judgment upon the unanswerable argument there presented, and we would do so but for the great importance of the question and the far reach

ing consequences of cur decision. The police power by virtue of which this legislation is vindicated and justified is no new or unusual exercise of the sovereign will. It had its origin in the most ancient maxims of jurisprudence. All property was originally acquired subject to regulation in its use by those cardinal principles embodied in the maxim, "The safety of the people is the supreme law," and that other maxim, "So use your own as not to injure another." This was the original condition imposed upon the right of property in things-that it should be enjoyed subject to reasonable regulations, when considered necessary to promote the general good of society. A good statement of the nature and extent of this police power is to be found in Thorpe v. Railway Co., 27 Vt. 140, 62 Am. Dec. 625, where Redfield, C. J., says: "This police power of the state 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.

* * *

There

is also the general police power of the state, by which 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, 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. And it is certainly calculated to excite surprise and alarm, that the right to do so in regard to railways should be made a serious question. This objection is made generally upon two grounds: (1) That it subjects corporations to virtual destruction by the Legislature and (2) that it is an attempt to control the obligation of one person to another, in matters of merely private concern. The first point has already been somewhat labored. It is admitted that the essential franchise of a private corporation is recognized by the best authority as private property, and cannot be taken without compensation, even for public use." He then proceeds to demonstrate conclusively that the police power resides primarily and ultimately in the Legislature, and that private interests of every kind fall legitimately within the range of legislative control, both in regard to natural and artificial persons. "It seems incredible," he says, "how any doubt should have arisen upon the point now before the court. And it would seem it could not, except from some undefined apprehension, which seems to have prevailed to a considerable extent, that a corporation did possess some more exclusive powers and

privileges upon the subject of its business, than a natural person in the same business, with equal power to pursue and to accomplish it, which, I trust, has been sufficiently denied." The general conclusion reached is that there can be no manner of doubt that the Legislature may, if the public good is deemed to demand it-of which it is the judge, its judgment in all doubtful cases being final-require property to be used by persons, as well as their business to be conducted, so as to prevent harm or injury to the public.

The same principle is strongly stated in State v. Common Pleas of Morris, 36 N. J. Law, 72, 13 Am. Rep. 422: "While alcoholic stimulants are recognized as property and are entitled to the protection of the law. ownership in them is subject to such restraints as are demanded by the highest considerations of public expediency. Such enactments are regarded as police regulations, established for the prevention of pauperism and crime, for the abatement of nuisances, and the promotion of public health and safety. They are a just restraint of an injurious use of property, which the Legislature has authority to impose, and the extent to which such interference may be carried must rest exclusively in legislative wisdom, where it is not controlled by fundamental law. It is a settled principle. essential to the right of self-preservation in every organized community, that however absolute may be the owner's title to his property, he holds it under the implied condition 'that its use shall not work injury to the equal enjoyment and safety of others, who have an equal right to the enjoyment of their property, nor be injurious to the community.' Rights of property are subject to such limitations as are demanded by the common welfare of society, and it is within the range and scope of legislative action to declare what general regulations shall be deemed expedient. If, therefore, the Legislature shall consider the retail of ardent spirits injurious to citizens, or productive of idleness and vice. it may provide for its total suppression. Such inhibition is justified only as a police regulation, and its legality has been recognized in well-considered cases. It is neither in conflict with the power of Congress over subjects within its exclusive jurisdiction, nor with any provisions of our state Constitution, nor with general fundamental principles. Cooley on Const. Limitations, p. 583, and cases there referred

to: Thurlow v. Massachusetts, 5 How. (U. S.) 504, 12 L. Ed. 256. It is not necessary to amplify discussion on this point, or to criticise the cases in detail. The view here taken underlies the whole subject of police regulations, and cannot logically be narrowed in its application." In commissioners v. Alger, 7 Cush. (Mass.) 53, Chief Justice Shaw, referring to the police power, says: "This is

very different from the right of eminent domain, the right of a government to take and appropriate private property to public use, 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 witnout, 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. There are many cases in which such a power is exèrcised by all well-ordered governments, and where its fitness is so obvious, that all well-regulated minds will regard it as reasonable." He then cites numerous instances in which the power can be rightfully exercised, and among them the use of property near inhabited villages in such a way as to produce dangerous exhalations, injurious to health and dangerous to life, and proceeds: "Nor does the prohibition of such noxious use of property-a prohibition imposed because such use would be injurious to the public, although it may diinish the profits of the owner-make it an appropriation to a public use, so as to entitle the owner to compensation. He [the owner] is restrained, not because the public have occasion to make the like use, or to make any use of the property, or to make any benefit or profit to themselves from it, but because it would be a noxious use, contrary to the maxim, 'Sic utere tuo ut alienum non lædas.' It is not an appropriation of the property to a public use, but the restraint of an injurious private use by the owner, and is therefore not within the principle of property taken under the right of eminent domain." A case also directly in point is State v. Streeper, 5 N. J. Law, 116.

The very contention made in this case, that the property of the defendant is taken unlawfully and without due process of law and that it is denied the equal protection of the laws, thereby violating the fourteenth amendment to the Constitution of the United States, was fully met and answered in Mugler v. Kansas, 123 U. S. 623, 8 Sup. Ct. 273, 31 L. Ed. 205, a leading and authoritative decision upon this question. The court, by Harlan, J., there says: "Undoubtedly the state, when providing, by legislation, for the protection of the public health, the public morals, or the public safety, is subject to the paramount authority of the Constitution of the United States, and may not violate rights secured or guaranteed by that instrument, or interfere with the execution

of the powers confided to the general government. But neither the fourteenth amendment, broad and comprehensive as it is, nor any other amendment, was designed to interfere with the power of the state, sometimes termed its police power, to prescribe regulations to promote the health, peace, morals, education, and good order of the people, and to legislate so as to increase the industries of the state, develop its resources, and add to its wealth and prosperity." He then asks the question: "Who shall determine whether the particular use of property is injurious to the public?" and gives this answer: "Power to determine such questions, so as to bind all, must exist somewhere, else society will be at the mercy of the few. Under our system that power is lodged with the legislative branch of the government. It belongs to that department to exert what are known as the police powers of the state, and to determine, primarily, what measures are appropriate or needful for the protection of the public morals, the public health, or the public safety." Summing up and stating the result of all the decisions of that court, it is further said: "The principle that no person shall be deprived of life, liberty, or property, without due process of law, was embodied, in substance, in the Constitutions of nearly all, if not all, of the states at the time of the adoption of the fourteenth amendment; and it has never been regarded as incompatible with the principle, equally vital, because essential to the peace and safety of society, that all property in this country is held under the implied obligation that the owner's use of it shall not be injurious to the community.

This court has, nevertheless, with marked distinction and uniformity, recognized the necessity, growing out of the fundamental conditions of civil society, of upholding state police regulations which were enacted in good faith, and had appropriate and direct connection with that protection to life, health, and property which each state owes to her citizens. A prohibi

tion simply upon the use of property for purposes that are declared, by valid legislation, to be injurious to the health, morals, or safety of the community, cannot, in any just sense. be deemed a taking or an appropriation of property for the public benefit. Such legislation does not disturb the owner in the control or use of his property for lawful purposes, nor restrict his right to dispose of it. but is only a declaration by the state that its use by any one, for certain forbidden purposes, is prejudicial to the public interests."

It was said in Munn v. Illinois, 94 U. S. 124, 24 L. Ed. 77, that while power does not exist with the whole people to control rights that are purely and exclusively private, government may require "each citizen to