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 http://www.archive.org/cletails/cu31924059189815 
 
A TEEATISE 
 
 LIMITATIONS, 
 
 POLICE POWEE 
 
 UNITED STATES 
 
 CONSIDERED FROM BOTH A CIVIL AND CRIMINAL STANDPOINT. 
 
 CHEISTOPHER G.JIEDEMAN, A.M., LL.B., 
 
 Profetaor of Law in the Unioeraity of Missouri. 
 AntbOT of a treatise on "Meal Property." 
 
 ST. LOUIS: 
 
 THE F. H. THOMAS LAW BOOK CO., 
 
 1886. 
 
Entered according to Act of Congress, in the year 1886, by 
 
 C. G. TIEDBMAN, 
 In the Office of the Librarian of Congress, at Washington. 
 
 St. Lowis, Mo.: 
 Press of Nixon-Jones Printing Co. 
 
THESE PAGES AEE AFFECTIONATELY INSCRIBED TO 
 MY WIFE, 
 
 HELEN SEYMOUR TIEDEMAN, 
 
 WHOSE SCRUPULOUS REGARD FOR THE RIGHTS OF OTHERS, 
 
 AND TENDER SYMPATHY FOR THEIR WEAKNESSES, 
 
 HAVE BEEN MY GUIDE AND INSPIRATION. 
 
 (iii) 
 
PREFACE. 
 
 In the days when popular government was unknown, and 
 the maxim Quod principi placuit, legis habet vigorem, 
 seemed to be the fundamental theory of all law, it would 
 have been idle to speak of limitations upon the police power 
 of government ; for there were none, except those which 
 are imposed by the finite character of all things natural. 
 Absolutism existed in its most repulsive form. The king 
 ruled by divine right, and obtaining his authority from 
 above he acknowledged no natural rights in the individual. 
 If it was his pleasure to give to his people a wide room for 
 individual activity, the subject had no occasion for com- 
 plaint. But he could not raise any effective opposition to 
 the pleasure of the ruler, if he should see fit to impose 
 numerous restrictions, all tending to oppress the weaker for 
 the benefit of the stronger. 
 
 But the divine right of kings began to be questioned, 
 and its hold on the public mind was gradually weakened, 
 until, finally, it was repudiated altogether, and the opposite 
 principle substituted, that all governmental power is de- 
 rived from the people ; and instead of the king being the 
 vicegerent of God, and the people subjects of tl^e king, the 
 king and other officers of the government were the servants 
 of the people, and the people became the real sovereign 
 through the officials. Vox populi, vox Dei, became the 
 popular answer to all complaints of the individual against 
 
 (V) 
 
vi PBEFACB. 
 
 the encroachments of popular government upon his rights 
 and his liberty. Since the memories of the oppi'essions o 
 the privileged classes under the reign of kings and nobles 
 were still fresh in the minds of individuals for many years 
 after popular government was established in the English- 
 speaking world, content with the enjoyment of their own 
 liberties, there was no marked disposition manifested by 
 the majority to interfere with the like liberties of the mi- 
 nority. On the contrary the sphere of governmental ac- 
 tivity was confined within the smallest limits by the 
 popularization of the so-called laissez-faire doctrine, which 
 denies to government the power to do more than to provide 
 for the public order and personal security by the preven- 
 tion and punishment of crimes and trespasses. Under the 
 influence of this doctrine, the encroachments of government 
 upon the rights and liberties of the individual have for the 
 past century been comparatively few. But the political 
 pendulum is again swinging in the opposite direction, and 
 the doctrine of governmental inactivity in economical 
 matters is attacked daily with increasing vehemence. Gov- 
 ernmental interference is proclaimed and demanded every- 
 where as a sufficient panacea for every social evil which 
 threaten the prosperity of society. Socialism, Communism, 
 and Anarchism are rampant throughout the civilized world. 
 The State is called on to protect the weak against the 
 shrewdness of the stronger, to determine what wages a 
 workman shall receive for his labor, and how many hours 
 daily he shall labor. Many trades and occupations are be- 
 mg prohibited because some are damaged incidentally by 
 their prosecution, and many ordinary pursuits are made 
 government monopolies. The demands of the Socialists 
 
PREFACE. VU 
 
 and Communists vary in degree and in detail, and the most 
 extreme of them insist upon the assumption by government 
 of the paternal character altogether, abolishing all private 
 property in laud, and making the State the sole possessor 
 of the working capital of the nation. 
 
 Contemplating these extraordinary demands of the great 
 army of discontents, and their apparent power, with the 
 growth and development of universal suffrage, to enforce 
 their views of civil polity upon the civilized world, the con- 
 servative classes stand in constant fear of the advent of an 
 absolutism more tyrannical and more unreasoning than any 
 before experienced by man, the absolutism of a democratic 
 majority. 
 
 The principal object of the present work is to demon- 
 strate, by a detailed discussion of the constitutional limita- 
 tions upon the police power in the United States, that under 
 the written constitutions. Federal and State, democratic 
 absolutism is impossible in this country, as long as the 
 popular reverence for the constitutions, in their restrictions 
 upon governmental activity, is nourished and sustained by 
 a prompt avoidance by the courts of any violations of their 
 provisions, in word or in spirit. The substantial rights of 
 the minority are shown to be free from all lawful control 
 or interference by the majority, except so far as such con- 
 trol or interference may be necessary to prevent injury to 
 others in the enjoyment of their rights. The police power of 
 the government is shown to be confined to the detailed en- 
 forcement of the legal maxim, sic utere tuo, ut alienum non 
 Icedas. 
 
 If the author succeeds in any measure in his attempt to 
 awaken the public mind to a full appreciation of the power 
 
Vlll PEEFACE. 
 
 of constitutional limitations to protect private rights against 
 the radical experimentations of social reformers, he will 
 feel that he has been amply requited for his labors in the 
 cause of social order and personal liberty. 
 
 C. G. T. 
 
 XJniybesity of thb State op Hissottbi, Columbia, Mo., 
 November 1, 1886. 
 
TABLE OF CONTENTS. 
 
 PAKT I. 
 
 CHAPTER I. 
 
 LIMITATIONS UPON THE POLICE POWER OF THE UNITED 
 
 STATES. 
 
 Section 1. Police power, defined and explained. 
 
 2. Tlie legal limitations upon police power. 
 
 3. Constrnction of constitutional limitations. 
 i. The principal constitutional limitations. 
 
 5. Table of private rights. 
 
 CHAPTER II. 
 
 POLICE REGULATION OF PERSONAL SECURITY. 
 
 Section 10. Security to life. 
 
 H. Capital punishment. 
 
 12. Security to limb and body. 
 12a. Corporal punishment. 
 
 126. Personal chastisement in certain relations. 
 
 13. Battery in self-defense. 
 
 14. Abortion. 
 
 16. Compulsory submission to surgical and medical treatment. 
 
 16. Security to health — Legalized nuisances. 
 
 17. Security to reputation — Privileged communications. 
 17o. Privilege of legislators. 
 
 17&. Privilege in judicial proceedings. 
 
 17c. Criticism of officers and candidates for office. 
 
 17d. Publications through the press. 
 
 18. Security to reputation — Malicious prosecution. 
 18a. Advice of counsel — How far a defense. 
 
 (ix) 
 
X TABLE OF CONTENTS. 
 
 CHAPTEE III. 
 
 PERSONAL LIBERTY. 
 Section 30. Personal liberty — How guaranteed. 
 
 CHAPTER IV. 
 
 POLICE CONTROL OF CRIMINAL CLASSES. 
 
 Section 31. The effect of crime on the rights of the criminal. 
 31a. Due process of law. 
 31b. Bills of attainder. 
 31c. Ex post facto law. 
 
 32. Preliminary confinement to answer for a crime. 
 
 33. What constitutes a lawful arrest. 
 33o. Arrest without warrant. 
 
 34. The trial of the accused. 
 34o. The trial must be speedy. 
 346. The trial must be public. 
 34c. Accused entitled to counsel. 
 
 34(2. Indictment by grand jury or by information. 
 
 34e. The plea of defendant. 
 
 34/. Trial by jury — Legal jeopardy. 
 
 35. Control over criminals in the penitentiary. 
 35a. Convict lease system. 
 
 CHAPTER V. 
 
 POLICE CONTROL OF DANGEROUS CLASSES, OTHERWISE THAN 
 BY CRIMINAL PROSECUTION. 
 
 Section 42. Confinement for infectious and contagious diseases. 
 
 43. Confinement of the Insane. 
 
 44. Control of the insane in the asylum. 
 
 45. Punishment of the criminal insane. 
 
 46. Confinement of habitual drunkards. 
 
 47. Police control of vagrants. 
 
 48. Police regulation of mendicancy. 
 
 49. Police supervision of habitual criminals. 
 
 50. State control of minors. 
 
TABLE OF CONTENTS. XI 
 
 CHAPTER VI. 
 
 POLICE REGULATIONS OF THE EIGHTS OF CITIZENSHIP AND 
 
 DOMICILE. 
 
 Sbctio3s^ 56. Citizenship and domicile distinguiahed. 
 
 57. Expatriation. 
 
 58. Naturalization. 
 
 59. Prohibition of emigration. 
 
 60. Compulsory emigration. 
 
 61. Prohibition of immigration. 
 
 62. The public duties of a citizen. 
 
 CHAPTER VII. 
 
 POLICE CONTROL OF MORALITY AND RELIGION. 
 
 Section 68. Crime and vice distinguished — Their relation to police 
 power. 
 
 69. Sumptuary laws. 
 
 70. Church and State — Historical synopsis. 
 
 71. Police regulation of religion — Constitutional restrictions. 
 
 72. State control of churches, and congregations. 
 
 73. Religious criticism and blasphemy distinguished. 
 
 74. Permissible limitations upon religious worship. 
 
 75. Religious discrimination in respect to admissibility of 
 
 testimony. 
 
 76. Sunday laws. 
 
 CHAPTER VIII. 
 FREEDOM OF SPEECH AND LIBERTY OF THE PRESS. 
 Section 81. Police supervision prohibited by the constitutions. 
 
 CHAPTER IX. 
 
 POLICE REGULATIONS OF TRADES AND PROFESSIONS. 
 
 Section 85. General propositions. 
 
 86. Prohibition as to certain classes. 
 
 87. Police regulation of skilled trades and learned professions 
 
Xii TABLE OF CONTENTS. 
 
 Section 88. Regulation of practice In the learned professions. 
 
 89. Regulation of sale of certain articles of merchandise. 
 
 90. Legal tender, and the regulation of the currency. 
 
 91. Legislative restraint of importations — Protective tariffs. 
 
 92. Compulsory formation of business relations. 
 
 93. Regulation of prices. 
 
 94. Usury and interest laws. 
 
 95. Prevention of speculation. 
 
 96. Prevention of combinations In restraint of trade. 
 
 97. Boycotting. 
 
 98. Contracts against liability for negligence prohibited. 
 
 99. Wager contracts prohibited. 
 99a. Option contracts, when illegal. 
 
 100. General prohibition of contracts, on account of public policy. 
 
 101. Licenses. 
 
 102. Prohibition of occupations in general. 
 
 103. Prohibition of the liquor trade. 
 
 104. Police control of employments in respect to locality. 
 
 105. Monopolies, creation of. 
 
 CHAPTEE X. 
 
 POLICE REGULATIONS OF REAL PROPERTY. 
 
 Section 115. What is meant by "private property in land? " 
 
 116. Regulation of estates — Vested rights. 
 
 117. Interests in expectancy. 
 
 118. Limitation of the right of acquisition. 
 
 119. Regulation of the right of alienation. 
 
 120. Involuntary alienation. 
 
 121. Eminent domain. 
 
 121a. Exercise of power regulated by legislature. 
 1216. Public purpose, what is a. 
 121c. What property may be taken. 
 121d. What constitutes a taking. 
 121e. Compensation, how ascertained. 
 
 122. Regulation of the use of lands — What is a nuisance? 
 122a. What is a nuisance, a judicial question. 
 
 1226. Unwholesome trades in tenement houses may be prohibited. 
 
 122c. Confinement of objectionable trades to certain localities. 
 
 122d. Regulation of burial grounds. 
 
 122e. Laws regulating the construction of wooden buildings. 
 
 122/. Regulation of right to hunt game. 
 
 122g. Abatement of nuisances — Destruction of buildings. 
 
 123. How far the use of land may be controlled by the require- 
 
 ment of license. 
 
TABLE OF CONTENTS. XUl 
 
 Section 124. Improvement of property at the expense, and against the 
 will, of the owner. 
 
 125. Regulation on non-navigable streams — Fisheries. 
 125a. Conversion of non-navigable into navigable streams. 
 
 126. Statutory liability of lessors for the acts of lessees. 
 
 127. Search warrants. 
 
 128. Quartering soldiers in private dwellings. 
 
 129. Taxation. 
 
 CHAPTEE XI. 
 
 POLICE REGULATION OF PERSONAL PROPERTY. 
 
 Sbctiok 135. Laws regulating the creation and acquisition of interests 
 in personal property — Real and personal property herein 
 distinguished. 
 135a. Statute of uses and rule against perpetuity, as regulations 
 of personal property. 
 
 136. Regulation and prohibition of the sale of personal prop- 
 
 erty. 
 136a. Laws regulating disposition of personal property by will. 
 
 137. Involuntary alienation. 
 
 138. Control of property by guardian. 
 
 139. Destruction of personal property on account of illegal use. 
 
 140. Laws regulating use of personal property. 
 140a. Prohibition of possession of certain property. 
 
 1406. Regulation and prohibition of the manufacture of certain 
 
 property. 
 140c. Carrying of concealed weapons prohibited. 
 140(2. Miscellaneous regulations of the use of personal property. 
 
 141. Laws regulating the use and keeping of domestic animals. 
 141a. Keeping of dogs. 
 
 1416. Laws for the prevention of cruelty to animals. 
 
 142. Regulation of contracts and other rights of action. 
 
 143. Regulation of ships and shipping. 
 
 CHAPTEE XII. 
 
 POLICE REGULATION OF THE RELATION OP HUSBAND AND 
 
 WIFE. 
 
 Section 149. Marriage, a natural status, subject to police regulation. 
 
 150. Constitutional limitations upon the police control of mar- 
 
 riages. 
 
 151. Distinction between natural capacity and legal capacity. 
 
Xiv TABLE OF CONTENTS. 
 
 Section 152. Insanity as a legal Incapacity. 
 
 153. The disability of Infancy in respect to marriage. 
 
 154. Consanguinity and affinity. 
 
 155. Constitutional diseases. 
 
 156. Financial condition — Poverty. 
 
 157. Differences in race — Miscegenation. 
 
 158. Polygamy prohibited — Marriage confined to mono 
 
 gamy. 
 169. Marriage indissoluble — Divorce. 
 
 160. Regulation of the marriage ceremony. 
 
 161. Wife in legal subjection to the husband — Its justifica- 
 
 tion. 
 
 162. Husband's control of vrife's property. 
 
 163. Legal disabilities of married women. 
 
 CHAPTER XIII. 
 
 POLICE REGULATION OF THE RELATION OF PARENT AND 
 CHILD, AND OF GUARDIAN AND WARD. 
 
 Section 165. Original character of the relation of parent and child — Its 
 political aspect. 
 
 166. No limitation to State interference. 
 
 166a. People v. Turner. ' 
 
 167. Compulsory education. 
 
 168. Parents' duty of maintenance. 
 
 169. Child's duty to support indigent parents. 
 
 170. Relation of guardian and ward altogether subject to State 
 
 regulation. 
 
 171. Testamentary guardians. 
 
 CHAPTER XIV. 
 
 POLICE REGULATION OF THE RELATION OF MASTER AND 
 
 SERVANT. 
 
 Section 175. Terms "master and servant" defined. 
 
 176. Relation purely voluntary. 
 
 177. Apprentices. 
 
 178. State regulation of private employments. 
 
 179. State regulation of public employments. 
 
TABLE OF CONTENTS. XV 
 
 CHAPTER XV. 
 
 POLICE REGULATION OF CORPORATIONS. 
 
 Section 188. The Inviolability of the charters of private corporations. 
 
 189. Police control of corporations. 
 
 190. Freedom from police control, as a franchise. 
 
 191. Police regulation of corporations in general. 
 
 192. Laws regulating rates and charges of corporations. 
 
 193. Police regulation of foreign corporations. 
 
 194. Police regulation of railroads. 
 
 CHAPTER XVI. 
 
 THE LOCATION OF POLICE POWER IN THE FEDERAL SYSTEM 
 OF GOVERNMENT. 
 
 Section 200. The United States government one of enumerated powers. 
 
 201. Police power generally resides in the States. 
 
 202. Regulations affecting interstate commerce. 
 
 203. Police control of navigable streams. 
 
 204. Police regulation of harbors — PUotage laws. 
 
 205. Regulation of weights and measures. 
 
 206. Counterfeiting of coins and currencies. 
 
 207. Regulation of the sale of patented articles. 
 
 208. War and rebellion. 
 
 209. Regulation of the militia. 
 
 210. Taxation. 
 
 211. Regulation of offenses against the laws of nations. 
 
 212. The exercise of police power by municipal corporations. 
 
TABLE OF CASES CITED. 
 
 Abbott V. Lindenbower (42 Mo. 162 ; 
 
 46 Mo. 291), 519. 
 Abbott V. Siegler (9 Ind. 511), 205. 
 •Abrams v. Foshee (3 Iowa, 274), 31. 
 lAbt V. Burgheim (80 111. 92), 28. 
 iAdams v. Beale (19 Iowa, 61), 619. 
 -Adams v. Hatchett (27 N. H. 289), 
 
 583. 
 1 Adams v. Palmer (51 Me. 494), 358, 
 
 359, 362. 
 Adams v. Rivers (11 Barb. 390) 407. 
 Adams v. Stevens (49 Me. 362), 361. 
 Adams Exp. Co. v. Stettaners (61 
 
 111. 174), 257. 
 All Foy, Ex parte (57 Cal. 92), 272. 
 Ah He V. Crlppen (19 Cal. 491), 443. 
 Ah Lew V. Choate (24 Cal. 562), 443. 
 Ainslee v. Martin (9 Mass. 454), 
 
 139. 
 Albrecht v. State (8 Tex. Ct. App. 
 
 216; 34 Am. Rep. 737), 282. 
 Aldrich V. Parsons (6 N. Y. 555), 
 
 366. 
 Aldrich v. Wright (53 N. H. 398; 
 
 46 Am. Rep. 339), 28. 
 Aldridge v. RaUroad Company (2 
 
 Stew. & P. 199), 375. 
 Alexander v. Hoyt (7 Wend. 89), 82. 
 Alexander v. Milwaukee (16 Wis. 
 
 247), 400. 
 Allen V, Armstrong (16 Iowa, 508), 
 
 519. 
 Allen V. Colby (47 N. H. 344), 
 
 463. 
 
 Allen V. Crofoot (2 Wend. 615), 41, 
 
 42. 
 Allen V. Mayfleld (20 Ind. 293), 339. 
 Allen V. Staples (6 Gray, 491), 465. 
 AUery v. Commonwealth (8 B. Mon. 
 
 3), 80. 
 Albany Street, matter of (11 Wend. 
 
 149), 358, 379,393. 
 Ames V. Lake Superior, etc., R. R. 
 
 Co. (21 Minn. 241), 420. 
 Ames V. Rathbun (56 Barb. 194), 
 
 63, 65. 
 Ammerman v. Crosby (26 Ind. 451) 
 
 63. 
 American Print Works v. Lawrence 
 
 (21 N. J. 248-; s. c. 23 N. J. 690), 
 
 399. 
 American River Water Co. «. Ams- 
 
 den (6 Cal. 443), 617. 
 Am. Union Tel. Co. v. W. U. Tel. 
 
 Co. (67 Ala. 26; 42 Am. Rep. 90), 
 
 592. 
 Anderson v. Kerns Draining Co. (14 
 
 Ind. 199), 380, 445. 
 Andres «. Wells (7 Johns. 260; 5 
 
 Am. Dec. 267), 64. 
 Andrew v. Bible Society (4 Sandf. 
 
 156), 169. 
 Andrews v. Spurr (8 Allen, 416), 
 
 361. 
 Andrews v. State (2 Sneed, 550), 86. 
 Annable v. Patch (3 Pick. 360), 340. 
 Anthony v. Lapbam (6 Pick. 176), 
 
 460. 
 Antisdel v. Chicago, etc., R. R. Co. 
 
 (26 Wis. 146), 598. 
 
 (xvii) 
 
XVIU 
 
 TABLE OF CASES CITED. 
 
 Antoni v. Belknap (102 Mass. 200J, 
 
 366. 
 Andrews, Ex parte (18 Cal. 678), 
 
 183. 
 Arimond v. Green Bay Co. (31 Wis. 
 
 316), 394, 397. 
 Armlngton v. Barnet (15 Vt. 745), 
 
 376, 392, 472. 
 Armstrong v. Jackson (1 Blackf. 
 
 374), 367. 
 Arnold v. Arnold (13 Vt. 362), 174. 
 Arnold v. Decatur (29 Mich. 11), 
 
 375. 
 Arnold ti.Foot (12 Wend. 330), 451. 
 Arnold v. Hudson Elrer B. E. Co. 
 
 (55 N. Y. 661), 405. 
 Arnold V. Mundy (6 N. J. 1), 617. 
 Arnot V. Coal Co. (60 N. Y. 558), 
 
 250. 
 Arundel v. McCuUoch (10 Mass. 70), 
 
 617. 
 Ash V. Cummings (50 N. H. 591), 
 
 385, 421. 
 Ash V. People (11 Mich. 347), 274, 
 
 313, 434. 
 Ashley v. Peterson (25 Wis. 621), 
 
 465. 
 Ashley v. Port Huron (35 Mich. 
 
 296), 397. 
 Ashton V. Dakin (4 H. & N. 867), 
 
 265. 
 Atchison & Neb. R. E. Co. v. Baty 
 
 (6 Neb. 37; 29 Am. Sep. 356), 
 
 598. 
 Attorney-General v. Chicago, etc., 
 
 E. E. Co. (35 Wis. 425), 584, 590. 
 Attorney-General v. Metropolitan 
 
 E. B. Co. (125 Mass. 515; 28 Am. 
 
 Eep. 248), 418. 
 Atwood V. Welton (7 Conn. 66), 174. 
 Augusta & S. E. E. Co. v. Eenz (55 
 
 Ga. 126), 187. 
 Austin V. State (10 Mo. 591), 195, 
 
 201,304,305. 
 Austine v. State (51 HI. 236), 91. 
 Ayers v. Birtch (35 Mich. 501), 28. 
 
 Aymette v. State (2 Humph. 154), 
 
 503. 
 Ayres v. Methodist Church (3 
 
 Sandi. .851), 171. 
 
 B. 
 
 Babcock v. Thompson (3 Pick. 
 
 446), 261. 
 Backus V. Lebanon (11 N. H. 9), 
 
 574. 
 Bacon v. Callender (6 Mass. 303), 
 
 367. 
 Bacon v. Towne (4 Cush. 217), 61. 
 Bacon v. Wayne Co. (1 Mich. 461), 
 
 90. 
 Badore v. Newton (54 N. H. 117), 
 
 303. 
 Bagg V. Detroit (5 Mich. 336), 409. 
 Bailey v. Piske (34 Me. 77), 537. 
 Bailey v. Philadelphia, etc., E. E. 
 
 Co. (4 Harr. 389), 584, 585. 
 Bailey v. Wright (38 Mich. 96), 
 
 465. 
 Baker v. Beckwith (29 Ohio St. 
 
 314), 303. 
 Baker v. Johnson (2 Hill, 343), 396. 
 Baker v. Lewis (33 Pa. St. 301), 
 
 617. 
 Baker v. Pope (2 Hun, 556), 303. 
 Baker v. State (12 Ohio St. 214), 
 
 96. 
 Baker, matter of (29 How. Pr. 486), 
 
 115. 
 Balch V. Commissioners (103 Mass. 
 
 106), 386. 
 Baldwin v. Bk. of Newbury (1 Wall. 
 
 234), 521. 
 Baldwin v. Chicago (68 111. 418), 
 
 310. 
 Baldwin v. Hale (1 Wall. 223), 521. 
 Baldwin v. Newark (38 N. J. 158), 
 
 517. 
 Baldwin v. Smith (82 111. 163), 429. 
 Ball V. Gilbert (12 Met. 399)), 261. 
 Baltimore v. Clunity (23 Md. 449), 
 
 583. 
 
TABLE OF CASES CITED. 
 
 XIX 
 
 Baltimore v. Eedecke (49 Md. 217; 
 
 33 Am. Eep. 239), 312, 435. 
 Baltimore, etc., E. E. Co. v. Ma- 
 
 gruder (35 Md. 79; 6 Am. Eep. 
 
 310), 392, 397. 
 Baltimore, etc., E. E. Co. v. Nesbit 
 
 (10 How. 396), 377, 583. 
 Baltimore, etc., E. E. Co. v. Pitts- 
 burg, etc., E. E. Co. (17 W. Va- 
 
 812), 394, 420. 
 Bancroft v. Cambridge (126 Mass. 
 
 438), 445. 
 Bank of Augusta v. Earle (13 Pet. 
 
 519), 592. 
 Bk. of Columbia v. Okely (4 Wheat. 
 
 235), 583. 
 Bank of Old Dominion „. McVeigh 
 
 (20 Gratt. 457), 574. 
 Bank of State v. Bank of Cape Fear 
 
 (13 Ired. 75), 574. 
 Bankhead v. Brown (25 Iowa, 640), 
 
 376, 378, 381, 383. 
 Baptist Church v. Wetherell (3 
 
 Paige, 296 ; 24 Am. Dec. 223), 164, 
 
 166. 
 Barbour v. Barbour (46 Me. 9), 345. 
 Barclay v. Howell's Lessee (6 Pet. 
 
 498), 394. 
 Barfoot v. Eeynolds (2 Stra. 953), 
 
 29. 
 Barling v. West (29 Wis. 307; 9 
 
 Am. Eep. 576), 272. 
 Barnard v. Backhouse (52 Wis. 
 
 593) 267, 270. 
 Barnard v. Bartlett (10 Cush. 601), 
 
 466. 
 Barnes v. Barber (6 III. 401), 83. 
 Barnes v. McCrate (32 Me. 442), 42. 
 Barnett v. Atlantic, etc., E. E. Co. 
 
 (68 Mo. 66; 30 Am. Eep. 773), 
 
 698. 
 Barney v. Keokuk (94 TJ. S. 324), 
 
 408, 420. 
 Barr v. Moore (87 Pa. St. 385; 30 
 
 Am. Eep. 367), 62. 
 Barrett v. Hyde (7 Gray, 160), 267. 
 
 Barron v. Baltimore (7 Pet. 243), 
 
 15. 
 Barron v. Mason (81 Vt. 189), 61. 
 Barry v, Croskey (2 Johns. & H. 1), 
 
 251. 
 Bartemeyer v. Iowa (18 Wall. 729), 
 
 304, 305. 
 Bartlett v. Brown (6 S. I. 37), 63. 
 Bartlett v. Churchill (24 Vt. 218), 
 
 26. 
 Bass V. Nashville (Meigs, 421 ; 33 
 
 Am. Dec. 154), 583. 
 Bates V. McDoweU (68 Miss. 816), 
 
 346. 
 Bauer v. Clay (8 Kan. 680), 61. 
 Baumgardner v. Circuit Court (4 
 
 Mo. 60), 618. 
 Bayer v. Cockerill (2 Kan. 292), 341. 
 Beach v. Hancock (27 N. H. 223), 
 
 23. 
 Beardsley v. Bridgman (17 Iowa, 
 
 290), 64. 
 Beatty v. Evans (L. E. 7 H. L. C. 
 
 102), 262. 
 Beckman v. Eailroad Co. (3 Paige, 
 
 45; 22 Am. Dec. 679), 376, 378, 
 
 379, 388. 
 Beebe v. State (26 Ind. 501), 197, 
 
 308. 
 Beecher v. Parmelee (9 Vt. 352), 28, 
 
 29. 
 Beer Company v. Massachusetts (27 
 
 U. S. 25), 681. 
 Beers v. Haughton (9 Pet. 329), 
 
 517. 
 Bell V. Clapp (10 Johns. 263 ; 6 Am. 
 
 Dec. 339), 466. 
 Bell V. Pearcy (5 Ired. 83), 61. 
 Bell V. Bice (2 J. J. Marsh. 44 ; 9 
 
 Am. Dec. 122), 465. 
 Bell V. State (2 Tex. App. 216; 28 
 
 Am. Eep. 429), 93 
 Bellinger v. N. Y. Cent. E. E. Co. 
 
 23 N. Y. 42), 398. 
 BeUport v. Tooker (21 N. Y. 267; 
 
 29 Barb. 256), 165. 
 
XX 
 
 TABLE OF CASES CITED. 
 
 Bender v. Nashua (17 N. H. 477), 
 
 401. 
 Benedict v. Gait (3 Barb. 459), 409. 
 Bennett u. Bennett (13 N. J. Eq. 
 
 114), 555. 
 Bennett v. Boggs (1 Bald. 74), 8. 
 Bennett v. Borough of Birmingham 
 
 (31 Pa. St. 15), 272. 
 Bennett v. Brooks (9 Allen, 118), 
 
 187. 
 Bennett v. Child (19 Wis. 365), 364. 
 Bennett u. Dutton (10 N. H. 481), 
 
 257. 
 Bennett ». Harms (51 Wis. 25), 346. 
 Benson v. Mayor (24 Barb. 248, 
 
 252), 8. 
 Benson v. Mayor, etc., of N. Y. (10 
 
 Barb. 223), 584. 
 Berpey v. N. T., etc., Tel. Co. (18 
 
 Md. 341), 259. 
 Bertholf v. O'ReUly (74 N. Y. 509 ; 
 
 s. c. 3 Am. Sep. 323), 7, 10, 152, 
 
 196, 303, 454, 457. 
 Besson v. Southard (10 N. Y. 237), 
 
 63. 
 Bethane v. Hayes (28 Ga. 560), 313, 
 
 434. 
 Bevan v. Adams (19 W. R. 76), 251. 
 Bickham v. Smith (62 Pa. St. 45;, 
 
 257. 
 Bigelow V. Benedict (70 N. Y. 202), 
 
 265, 266, 267. 
 Bigelow V. BigeJow (120 Mass. 300), 
 
 15. 
 BUlings V. Russell (23 Pa. St. 189), 
 
 82. 
 Bina's Appeal (55 Pa. St. 294), 265. 
 Binghamton Bridge Case (3 Wall. 
 
 51), 574. 
 Bird V. Holbrook (4 Bing. 628), 28. 
 Bird V. Perkins (33 Mich. 28), 82, 
 
 83. 
 Bird V. Smith (8 Watts, 434), 617. 
 Bird V. State (50 Ga. 685), 94. 
 Bissell V. N. Y. Cent. R. R. Co. (25 
 
 N. Y. 442), 258. 
 
 Black V, State (36 Ga. 447), 96. 
 Blackman o. Halves (72 Ind. 515), 
 
 381. 
 Blair V. Forehand (100 Mass. 136 ; 
 
 1 Am. Rep. 94), 512. 
 Blair v. Kilpatrick (40 Ind. 312), 
 
 198. 
 Blair v. Milwaukee, etc., R. R. Co. 
 
 (20 Wis. 254), 580. 
 Blake v. Rich (34 N. H. 282), 395. 
 Blake v. Winona, etc., R. R. Co. 
 
 (19 Minn. 418; 18 Am. Rep. 345; 
 
 94 U. S. 180), 590. 
 Blanchard v. Blanchard (1 Allen, 
 
 223), 339. 
 Blanchard, Ex parte (9 Nev. 101), 
 
 291. 
 Blass V. Gregor (15 La. Ann. 431), 
 
 63. 
 Blewet V. Wyandotte, etc., R. R. 
 
 Co. (72 Mo. 583), 597. 
 Bliss V. Hosmer (15 Ohio, 44), 392. 
 Bliss V. Wyman (7 Cal. 257), 63. 
 Blocker©. Bumess (2 Ala. 354), 174. 
 Bloodgood V. Mohawk, etc., B. R. 
 
 Co. (18 Wend. 9), 376, 377, 379, 
 
 421. 
 Bloom V. Richards (2 Ohio, 387;, 
 
 183. 
 Bloomfield, etc., R. R. Co. v. Calkins 
 
 (62N. Y. 386), 408. 
 Bloomington o. Wahl (46 Dl. 489), 
 
 313, 434. 
 Bloss V. Tobey (2 Pick. 320), 439. 
 Blunt V. Little (3 Mason, 102), 63, 
 
 64. 
 Board of Education v. McLands- 
 
 borongh (36 Ohio St. 227), 472. 
 Bodwell V. Osgood (3 Pick. 379; 15 
 
 Am. Dec. 228), 49. 
 Bohannan v. Commonwealth (8 
 
 Bush, 481; 8 Am. Rep. 474), 461. 
 Bohannan v. Hammond (42 Cal. 
 
 227), 256. 
 Bohl V. State (3 Tex. App. 683), 
 
 177. 
 
TABLE OF CASES CITED. 
 
 XXI 
 
 Bohlman v. Green Bay, etc., E. E. 
 
 Co. (40 Wis. 157;, 377. 
 Bombaugh v. Bombaugh (11 Serg. 
 
 &E. 192), 340. 
 Booneville v. Ormrod (26 Mo. 193), 
 
 420. 
 Boston V. Cummings (16 6a. 102), 
 
 8, 77. 
 Boston V. SchafEer (9 Pick. 415), 
 
 272, 274. 
 Boston Glass Manufactory v. Bin- 
 
 ney (4 Pick. 425), 248. 
 Boston Mill Dam v. Newman (12 
 
 Pick. 467), 376. 
 Boston & Eoxbury Manf. Co. v. 
 
 Newman (12 Pick. 467), 386. 
 Boston Water Power Co. v. Boston, 
 
 etc., E. E.Co. (23 Pick. 360), 392. 
 Bosworth V. Swansey (10 Met. 364), 
 
 187. 
 Boughton V. Carter (18 Johns. 406), 
 
 394, 397. 
 Bowen v. Matheson (14 Allen, 499), 
 
 248. 
 Bowen v. Preston (48 Ind. 367), 
 
 347. 
 Bowling Green v. Carson (10 Bush, 
 
 64), 312, 434. 
 Bowman v. Middleton (1 Bay, 252) , 
 
 358. 
 Boyd V. Bryant (36 Ark. 69 ; 37 Am. 
 
 Eep. 6), 308, 434. 
 Boyd V. Cross (36 Md. 194), 61. 
 Boyd V. State (36 Ala. 329), 683. 
 Boyd V. State (2 Humph. 635), 
 
 91. 
 Boyle V. McLaughlin (4 H. & J. 
 
 291), 256. 
 Boyle V. Zacharie (6 Pet. 348), 621. 
 Brackett v. Norcross (1 Me. 89), 
 
 367. 
 Bradley v. Buffalo, etc., E. E. Co. 
 
 (34 N. H. 429), 697. 
 Bradley v. Heath (12 Pick. 163), 36, 
 
 44, 49. 
 Bradley ». Eice (13 Me. 200), 462. 
 
 Bradley v. McAtee (7 Bush, 667; 3 
 
 Am. Eep. 616), 681. 
 Bradley v. N. Y. & N. H. E. R. Co. 
 
 (21 Conn. 294), 376, 381. 
 Bradwell v. State (55 HI. 635; s. c. 
 
 16 Wall. 130), 201, 202. 
 Brady v. Bronson (45 Cal. 640), 377. 
 Bralnard v. Head (16 La. Ann. 489), 
 
 82, 83. 
 Brandon v. People (42 N. Y. 266), 
 
 94. 
 Bratton v. Massey (15 S. C. 277)j 
 
 341. 
 Braveboy v. Cockfleld (2 McMul. 
 
 270), 61. 
 BreituDg v. Lindauer (37 Mich. 217), 
 
 520. 
 Brent v. Kimball (60 111. 21 ; 14 Am. 
 
 Eep. 35), 607. 
 Brewer Brick Co. v. Brewer (62 Me. 
 
 62; 16 Am. Eep. 395), 472. 
 Brewster v. Hough (10 N. H. 138), 
 
 474. 
 Brick Presbyterian Church v. 
 
 Mayor, etc. (5 Cow. 538), 437, 683. 
 Briggs V. State (29 Ga. 733), 28. 
 Brigham v. Meade (10 Allen, 246), 
 
 267. 
 Briscoe v. Bank of Kentucky (11 
 
 Pet. 257), 214. 
 Broadbent v. Tuscaloosa, etc.. As- 
 sociation (45 Ala. 170), 583. 
 Brock V. Hishen (40 Wis. 674), 421 . 
 Brock V. Milligan (10 Ohio, 121), 
 
 174. 
 Bronson v. Kinzid (1 How. 311), 
 
 620. 
 Bronson v. Newberry (2 Dougl. 
 
 (Mich.) 38), 618. 
 Bronson v. Oberlin (41 Ohio St. 
 
 476; 5 Am. Eep. 90), 308,434. 
 Brooklyn v. Breslin (57 N. Y. 691), 
 
 272. 
 Brooklyn Central, etc., R. E. Co. v. 
 
 Brooklyn City E. E. Co. (33 Barb. 
 
 420), 396. 
 
xxu 
 
 TABLE OF CASES CITED. 
 
 Brooklyn Park Comrs. v. Armstrong 
 (45 N. Y. 234; 6 Am. Eep. 70), 
 
 380, 396, 403. 
 Brooklyn & Newton E. K. Co. v. 
 
 Coney Island E. E. Co. (35 Barb. 
 
 364), 395. 
 Brookshaw v. Hopkins (Loff. 235), 
 
 108. 
 Brosnahan, In re John (4 McCrary, 
 
 1), 196, 297. 
 Brother v. Cannon (2 111. 200), 82. 
 Brothers v. Church (14 E. I. 398; 
 
 51 Am. Eep. 410), 620. 
 Brown v. Carpenter (26 Vt. 638), 
 
 508. 
 Brown v. Cayuga, etc., E. E. Co. 
 
 (12 N. Y. 486), 397, 400. 
 Brown v. Duplessis (14 La. Ann. 
 
 842), 402. 
 Brown v. Eastern E. Co. (11 Cush. 
 
 97), 257. 
 Brown v. Hitchcock (36 Ohio St. 
 
 667), 518. 
 Brown v. Houston (33 La. Ann. 
 
 843; 39 Am. Eep. 284), 615. 
 Brown v. Lamphear (35 Vt. 260), 
 
 361. 
 Brown v. Leeson (2 H. Bl. 43), 261. 
 Brown v. Lawrence (3 Cush. 390), 
 
 339. 
 Brown v. Maryland (12 Wheat. 
 
 419), 615. 
 Brown v. People (29 Mich. 232), 79. 
 Brown v. Phelps (103 Mass. 240), 
 
 267. 
 Brown ^.Eandall (36 Conn. 56), 65. 
 Brown v. Speyer (20 Gratt. 309) 
 
 266, 267. 
 Browns. Storm (4 Vt. 37), 366. 
 Brua's Appeal (5 Sm. 294), 261. 
 BrufEett). G. W. Ey. Co. (25 111. 353), 
 
 575. 
 Bruning v. N. N. Canal & Banking 
 
 Co. (12 La. Ann. 541), 378. 
 Brunswick v. Litchfield (2 Me. 28), 
 
 536. 
 
 Bryan v. Lewis (Eeq. & Moody, 386) , 
 
 265. 
 Bucklandc. Adams Express Co. (97 
 
 Mass. 124), 257. 
 Buckingham v. Smith (10 Ohio, 288), 
 
 379. 
 Buffalo & N. Y. E. E. Co. v. Brain- 
 
 ard (9N. Y. 100), 381. 
 Buffalo, etc., R. R. Co. v. Ferris (26 
 
 Tex. 588), 421. 
 Buffalo V. Webster (10 Wend. 99), 
 
 312, 434. 
 Bulkley v. N. Y., etc., E. R. Co. (27 
 
 Conn. 497), 597, 599. 
 Bulkley v. Naumkeag, etc., Co. (24 
 
 How. 386), 256. 
 Bunn V. Rikes (4 Johns. 426), 261. 
 Bunton v. Worley (4 Bibb, 88 ; 7 Am. 
 
 Dec. 735), 41. 
 Burckholter v, McConnellsville (20 
 
 Ohio St. 808), 273. 
 Burd V. Dausdale (2 Binn. 80), 344. 
 Burden v. Stein (27 Ala. 104), 380. 
 Burgess v. Clark (13 Ired. 109), 385. 
 Burke, Ex parte (59 Cal. 6; 43 Am. 
 
 Eep. 231), 183. 
 Burlingame v. Burlingame (8 Cow. 
 
 141), 41. 
 Burlington v. Bumgardner (42 Iowa 
 
 673), 281. 
 Burlington v. Putnam Ins. Co. (31 
 
 Iowa, 102), 274. 
 Burnap v. Albert (Taney, 344), 65. 
 Burns v. Erben (40 N. Y. 463), 84. 
 Barrows ». Bell (7 Gray, 301), 69. 
 Burt V. Brigham (117 Mass. 307), 
 
 377. 
 B'lsh V. Seabury (8 Johns. 418), 312, 
 
 434. 
 Butchers' TTnion Slaughterhouse, 
 
 etc., Co. V. Crescent City Live 
 
 Stock, etc., Co. (Ill U. S. 745), 
 
 582. 
 Butler V. Palmer (1 Hill, 324) 8. 
 Butler's Appeal (73 Pa. St. 48), 
 
 473. 
 
TABLE OP OASES CITED. 
 
 XXI 11 
 
 Butts V. Swartwood (2 Cow. 431), 
 
 174. 
 Byers v. Commonwealth (42 Pa. St. 
 
 96), 125, 127. 
 Buzick V. Bazick (44 Iowa, 269 ; 24 
 
 Am. Bep. 40 ), 345. 
 
 C. 
 
 Cairo v. Bross (101 111. 475), 272, 
 
 281. 
 Cairo, etc., R. R. Co. v. People (92 
 
 111. 97; 34 Am. Rep. 112), 598. 
 Calder v. Bull (3 Dall. 386), 5. 
 Calder v. Kurby (5 Gray, 597), 583. 
 Caldwell v. Alton (33 lU. 416), 313, 
 
 434. 
 Caldwell v. Fulton (31 Pa. St. 484), 
 
 361. 
 Caldwell v. N. J. Steamboat Co. 
 
 (47 N. Y. 282), 256. 
 Calkins v. Baldwin (4 Wend. 667; 
 
 21 Am. Dec. 168), 421. 
 Calkins v. Chaney (92 111. 463), 165. 
 Calkins v. State (18 Ohio St. 366), 
 
 94. 
 Calkins v. Sumner (13 Wis. 193), 42. 
 Call V. Hagger (8 Mass. 430), 516. 
 Callahan v. Caffarati (39 Mo. 136), 
 
 61. 
 Callamer v. Day (2 Vt. 144), 261. 
 Callender v. Marsh (1 Pick. 418), 
 
 401, 406. 
 Callison v. Hedrick (15 Gratt. 244), 
 
 421, 422. 
 Camden, etc., R. R. Co. ■». Baldauf 
 
 (16 Pa. St. 67), 257. 
 Cameron v. Durkheim (55 N. Y. 
 
 426), 265. 
 Cameron v. Supervisors, etc. (47 
 
 Miss. 264), 377. 
 Campbell v. Evans (46 N. Y. 356), 
 
 507. 
 Campbell v. Richardson (10 Johns. 
 
 406), 261. 
 Campbell V. Seaman (63 N. Y. 568), 
 
 35. 
 
 Campen v. Langley (39 Mich. 461; 
 
 33 Am. Rep. 414), 607. 
 Canady v. George (6 Rich. Eq. 103), 
 
 541. 
 Canal Com'rs v. People (5 Wend. 
 
 423), 618. 
 Canby v. Porter (12 Ohio, 79), 344. 
 Cannon v. Alsbury (1 A. K. Marsh. 
 
 76), 531. 
 Canton v. Nist (9 Ohio St. 439), 
 -185. 
 
 Caplis, Ex parte (58 Miss. 358), 87. 
 Carew v. Rutherford (106 Mass. 1, 
 
 13), 248. 
 Carl V. Ayers (63 N. Y. 13), 61. 
 Carondelet Canal, etc., Co. v. Parker 
 
 (29 La. Ann. 430; 29 Am. Rep. 
 
 839), 452, 622. 
 Carpenter v. Bailey (53 N. H. 590), 
 
 54. 
 Carpenter v. Oswego, etc., R. R. 
 
 Co. (24N. Y. 655),411. 
 Carpenter v. Pennsylvania (17 How. 
 
 456), 76. 
 Carr v. Brady (64 Ind. 28), 346. 
 Carr v. Georgia R. B. Co. (1 Ga. 
 
 624), 423. 
 Carr v. Northern Liberties (35 Pa. 
 
 St. 824), 33. 
 Carrier v. Brannan (3 Cal. 328), 
 
 261. 
 Carson v. Blazer (2 Binn. 475; 4 
 
 Am. Dec. 463), 400. 
 Carter v. Dow (16 Wis. 298), 511, 
 
 612. 
 Carter v. Dow (16 Wis. 299), 277. 
 Carthage v. Buckner (4 111. App. 
 
 317), 206. 
 Carton v. 111. Cent. R. R. Co. (69 
 
 Iowa, 148; 44 Am. Rep. 672), 616. 
 Casborns v. People (13 Johns. 329), 
 
 97. 
 Cash 17. Whitworth (13 La. 401) , 380. 
 Gates V. Kellogg (9 Ind. 506), 54. 
 Center v. Spring (2 Clarke, 393), 
 
 63. 
 
XXIV 
 
 TABLE OF CASES CITED. 
 
 Central Bridge Co. v. Lowell (i Gray, 
 
 474), 392. 
 Central Bridge v. Lowell (15 Gray, 
 
 106), 574. 
 Central City Horse Eailway Co. b. 
 
 Fort Clark, etc., Ey. Co. (87 111. 
 
 623), 392. 
 Central Ohio Salt Co. ■». Guthrie 
 
 (35 Ohio, 666), 250. 
 Central Park Extension, matter of 
 
 (16 Abb. Pr. 56), 380. 
 Central R. R. Co. v. Rockafellow 
 
 (17 111. 541), 174. 
 Central R. R. Co. u. Hetfield (29 N. 
 
 J. 206), 411. 
 Chagrin Falls, etc.. Plank Road Co. 
 
 V. Cane (2 Ohio St. 419), 409. 
 Chapman v. Calder (14 Pa. St. 365), 
 
 50. 
 Chapman v. Dodd (10 Min. 350), 65. 
 Chapman i>. Gates (54 N. Y. 132), 
 
 421. 
 Charity Hospital v. Stickney (2 La. 
 
 Ann. 550), 272. 
 Charles River Bridge ». Warren 
 
 Bridge (11 Pet. 420), 76, 420. 
 Charleston v. Benjamin (2 Strobh. 
 
 508), 177, 183. 
 Charlestown Branch R. R. Co. v. 
 
 Middlesex (7 Met. 78), 421. 
 Charlton v. Watton (6 C. & P. 385), 
 
 58. 
 Chase v. Chaney (58 111. 508), 166. 
 Chegaray v. Jenkins (5 N. Y. 376), 
 
 82. 
 Chesapeake, etc.. Canal Co. v. Balti- 
 more, etc., R. R. Co. (4 Gill & J. 
 
 5), 392. 
 Chestnut D.Shane's Lessee (16 Ohio, 
 
 599), 362. 
 Chicago & Alton, R. R. C«. v. Peo- 
 ple, ex rel. Koerner (67 111. 11 : 16 
 
 Am. Rep. 599), 590, 594. 
 Chicago V. Bartree (100 111. 57), 273. 
 Chicago V. Evans (24 HI. 52), 418. 
 Chicago!). Lamed (34111. 279), 470. 
 
 Chicago V. McGinn (51 111. 266; 2 
 
 Am. Rep. 295), 622. 
 Chicago V. RumpfE (45 HI. 90), 325. 
 Chicago, etc., R. R. Co. v. Barsie 
 
 (55 111. 226), 598. 
 Chicago, etc., R. R. Co. v. Iowa (94 
 
 U. S. 155), 234, 589, 591. 
 Chicago, etc., R. R. Co. v. Joliet 
 
 (79 III. 25), 416. 
 Chicago, etc., R. R. Co. v, Lake (71 
 
 111. 383), 376, 378. 
 Chicago, etc., R. E. Co. v. Sawyer 
 
 (69 111. 285), 256. 
 Chicago, etc., R. E. Co. v. Smith 
 
 (78 111. 96), 377. 
 Chicago, etc., E. E. Co. v. Stein (75 
 
 111. 41), 398. 
 Chicago, etc., E. E. Co. v. Wilson 
 
 (17 111. 123), 396. 
 Chicago Packing Co. v. Chicago (88 
 
 111.221), 581. 
 Chicago, Eock Island, etc., E. E. 
 
 Co. V. Eeidy (66 111. 43), 599. 
 Child V. Chappell (9 N. Y. 246), 404. 
 Child V. Coffin (17 Mass. 64), 585. 
 Childers v. Mayor (3 Sneed, 356), 
 
 291. 
 Childs V. Shower (18 Iowa, 261), 
 
 367. 
 Chilvers v. People (11 Mich. 43), 
 
 272, 279, 285. 
 Church V. Higham (44 Iowa, 482), 
 
 303. 
 Churchill «. Hulbert (110 Mass. 42; 
 
 14 Am. Eep. 578), 29, 30. 
 Cincinnati v. Bryson (15 Ohio, 626), 
 
 272, 282. 
 Cincinnati v. Eice (15 Ohio, 225), 
 
 185. 
 Cincinnati Gazette Co. v. Timber- 
 lake (10 Ohio St. 548), 56, 68. 
 Cincinnati, H. & D. E. E. Co. v. 
 
 Cole (29 Ohio, 125), 589. 
 Cincinnati M. H. Assurance Co. v. 
 
 Eosenthal (56 111. 85; 8 Am. Bep. 
 
 626), 592. 
 
TABLE OF CASES CITED. 
 
 XXV 
 
 City Council v. Benjamin (2 Strobh. 
 
 629), 183. 
 City Council v. Payne (2 Nott & 
 
 McCord, 475), 84. 
 City Council v. Peper (1 Eich. L. 
 
 364), 272. 
 City CouncU v. Bogers (2 McCord, 
 
 495), 208. 
 City Council v. Wentworth St. Bap- 
 tist Church (4 Strobh. 310), 437, 
 
 583. 
 City of Erie v. Erie Canal Co. (59 
 
 Pa. St. 174), 594. 
 City Railroad Co. v. City Bailroad 
 
 Co. (2 N. J. Eq. 61), 418. 
 Civil Bights Cases (109 U. S. 3), 
 
 231, 614. 
 Clark w. Barnes (70 N. Y. 301; 32 
 
 Am.Eep. 306), 353. 
 Clark V. Binney (2 Pick. 112), 57. 
 Clark V. Clark (56 N. H. 105), 364. 
 Clark V. Gibson (12 N. H. 386), 261. 
 Clark B. Kelliher (107 Mass. 406), 
 
 30. 
 Clark V. Miller (64 N. Y. 528), 420. 
 Clark i;. Rochester (24 Barb. 482), 
 
 470. 
 Clarke v. May (2 Gray, 410), 83. 
 Clarke ». State (23 Miss. 261), 77. 
 Clayton v. Scott (45 Vt. 386), 83. 
 Clay V. Smith (3 Pet. 411), 521. 
 Cleveland, etc., R. R. Co. v. Cur- 
 ran (19 Ohio St. 1), 258. 
 Cleveland, etc., R. R. Co. v. Speer 
 
 (66 Pa. St. 325), 574. 
 Clinton v. Meyers (46 N. Y. 511; 7 
 
 Am. Rep. 373), 451. 
 Clinton v. Phillips (58 III. 102; 11 
 
 Am. Rep. 52), 210. 
 Cloon V. Gerry (13 Gray, 201), 61. 
 Closson V. Staples (42 Vt. 209), 62. 
 Coatesv. Mayor, etc. (7 Cow. 585), 
 
 437, 583. 
 Cobb V. PreU (15 Fed. Rep. 774), 270. 
 Cochran v. Van Surley (20 Wend. 
 380), 8. 
 
 Cochrane v. Van Surlay (20 Wend. 
 
 365), 359. 
 Cockroft V. Smith (11 Mod. 43), 29. 
 Coffin c. Coffin (4 Mass. 1; 3 Am. 
 
 Dec. 189), 39, 40. 
 Coffin u. Rich (45 Me. 607), 585. 
 Cohen v. Wright (22 Cal. 293), 203. 
 Colburn v. Richards (13 Mass. 420), 
 
 450. 
 Colby V. Jackson (12 N. H. 526), 
 
 108. 
 Cole V. Milmine (88 111. 349), 267. 
 Coleman 0. Ballandi (22 Minn. 144), 
 
 620. 
 Coleman ■». Lewis (27 Pa. St. 291), 
 
 366. 
 Collins J). Hayte (50 111. 353), 61. 
 Collins V. Relief Society (73 Pa. St. 
 
 94), 627. 
 Colman v. Anderson (10 Mass. 105), 
 
 82. 
 Commissioners v. Beckwith (10 
 
 Kans. 603), 377. 
 Commissioners Inland Fishing v. 
 
 Holyoke Water Power Co. (104 
 
 Mass. 446; 6 Am. Rep. 547), 451. 
 Commonwealth v. Alderman (4 
 
 Mass. 477), 96. 
 Commonwealth v. Alger (7 Cush. 
 
 53), 358. 
 Commonwealth v. Bacon (13 Ky. 
 
 210; 26 Am. Rep. 189) 435. 
 Commonwealth v. Bakeman (105 
 
 Mass. 53), 96. 
 Commonwealth I!. Bearse (122 Mass. 
 
 442; 42 Am. Rep. 450), 435. 
 Commonwealth v. Blauding (3 Pick. 
 
 304; 16 Am. Dec. 214), 57, 191. 
 Commonwealth v. Boden (9 Mass. 
 
 194), 96. 
 Commonwealth v. Bonner (97 Mass. 
 
 587), 94. 
 Commonwealth v. Brennan (108 
 
 Mass. 70), 583. 
 Commonwealth v. Brickett (8 Pick. 
 
 138), 81. 
 
XXVI 
 
 TABLE OF CASES CITED. 
 
 Commonwealth v. Carlisle (Bright- 
 ley, 40), 246. 
 Commonwealth v. Casey (134 Mass. 
 
 194) 310. 
 Commonwealth v. Chapin (5 Pick. 
 
 199), 451, 618. 
 Commonwealth v. Charlestown (1 
 
 Pick. 180), 617. 
 Commonwealth v. Clapp (4 Mass. 
 
 163; 3 Am. Dec. 212), 51. 
 Commonwealth v. Cochituate Bank 
 
 (3 Allen, 42), 585. 
 Commonwealth v. Crotty (10 Allen, 
 
 403), 465. 
 Commonwealth ■». Costello (133 
 
 Mass. 192), 310. 
 Commonwealth v. CuUen (13 Pa. 
 
 St. 133), 574. 
 Commonwealth v. Curtis (97 Mass. 
 
 574), 91. 
 Commonwealth v. Dana (2 Mete. 
 
 329), 463. 
 Commonwealth v. Deacon (8 Serg. 
 
 & K. 47), 84. 
 Commonwealth v. Dorsey (103 
 
 Mass. 412), 79. 
 Commonwealth v. Eastern R. E. 
 
 Co. (103 Mass. 254; 4 Am. Rep. 
 
 655), 599. 
 Commonwealth v. Erie, etc., R. R. 
 
 Co. (27 Pa. St. 339), 411. 
 Commonwealth v. Erie Ry. Co. (62 
 
 Pa. St. 286; lAm. Rep. 399; s.c. 
 
 15 Wall. 232), 615. 
 Commonwealth v. Essex Co. (13 
 
 Gray, 247), 451. 
 Commonwealths. Farmers' and Me- 
 chanics' Bank (21 Pick. 642), 586. 
 Commonwealth v. Farrer (9 Allen, 
 
 489), 292. 
 Commonwealth v. Fells (9 Leigh, 
 
 620), 97. 
 Commonwealth v. Germania L. I. 
 
 Co. (11 Phila. 553), 281. 
 Commonwealth v. Goddard (13 
 
 Mass. 456), 96. 
 
 Commonwealth v. Haley (4 Allen, 
 
 318), 29. 
 Commonwealth v. Hall (97 Mass. 
 
 570), 79. 
 Commonwealth v. Hamilton Manfg. 
 
 Co. (120 Mass. 383), 199. 
 Commonwealth v. Harman (4 Pa. 
 
 St. 269), 91. 
 Commonwealth v. Has (122 Mass. 
 
 40), 177. 
 Commonwealth v. Hitchings (5 
 
 Gray, 482), 15. 
 Commonwealths. Hopkins (2 Dana, 
 
 418), 125, 126, 129. 
 Commonwealth v. Hunt (4 Mete. 
 
 11), 248, 249. 
 Commonwealth v. Intoxicating 
 
 Liquors (115 Mass. 153), 597. 
 Commonwealth v. Jacobus ( Leg. 
 
 Gaz. Rep. (Pa.) 491), 187. 
 Commonwealths. Jeandell (2 Grant 
 
 Cas. 606), 187. 
 Commonwealth a. Kingsley (133 
 
 Mass. 578), 288. 
 Commonwealth v. Kirkbride (3 
 
 Brewst. 686), 108. 
 Commonwealth v. Kneedland (20 
 
 Pick. 206), 169, 171. 
 Commonwealth v. L. & N. R. R. Co. 
 
 (80 Ky. 291), 187. 
 Commonwealth v. Leftwick (5 
 
 Rand. 657), 535. 
 Commonwealths. Look (108 Mass. 
 
 452), 400. 
 Commonwealth s. Malone (114 
 
 Mass. 295), 28. 
 Commonwealth s. Matthews (122 
 
 Mass. 60), 272. 
 Commonwealth s. Milton (12 B. 
 
 Mon. 212), 592. 
 Commonwealth s. Mitchell (117 
 
 Mass. 431), 91. 
 Commonwealth u. Morgan (lOT 
 
 Mass. 109), 94. 
 Commonwealth s. Moore (25 Gratt. 
 
 951), 282. 
 
TABLE OF CASES CITED. 
 
 XXVll 
 
 Commonwealth v. Morris (1 Va. 
 
 Cas. 175; 5 Am. Dec. 515), 51. 
 Commonwealth v. Nesblt (34: Pa. 
 
 St. 398), 177. 
 Commonwealth v. Nichols (10 Met. 
 
 269), 54. 
 Commonwealth v. Nichols (114 
 
 Mass. 286; 19 Am. Bep. 846), 94. 
 Commonwealth i>. Olds (6 Lit. 140), 
 
 97. 
 Commonwealth v. Pa.^ Canal Co. 
 
 (66 Pa. St. 41; 6 Am.' Rep. 329), 
 
 392. 
 Commonwealth v. Pa. Canal Co. 
 
 (66 Pa. St. 41; 5 Am. Bep. 329), 
 
 450. 
 Commonwealth v. Parker (9 Mete. 
 
 263), 31. 
 Commonwealth «. Ferryman (2 
 
 Leigh, 717), 635. 
 Commonwealth v. Bichards (18 
 
 Pick. 434), 94. 
 Commonwealth v. Bichter (1 Pa. 
 
 St. 467), 400. 
 Commonwealth v. Scott (123 Mass. 
 
 239; 26 Am. Bep. 87), 94. 
 Commonwealth v. Semmes (11 
 
 Leigh, 666), 80. 
 Commonwealth v. Specht, (8 Pa. 
 
 St. 312), 177. 
 Commonwealth v. Stodder (2 Cush. 
 
 562), 272, 281, 312. 
 Commonwealth v. Standard Oil Co. 
 
 (101 Pa. St. 119). 693. 
 Commonwealth v. Stowell (9 Met. 
 
 572), 97. 
 Commonwealth v. SturtSrant (117 
 
 Mass. 122), 91. 
 Commonwealth v. Taylor (5 Cush. 
 
 605), 91. 
 Commonwealth v. Temple (14 Gray, 
 
 76), 418. 
 Commonwealth v. Tuck (20 Pick. 
 
 366), 96. 
 Commonwealth v. Waite (9 Allen, 
 
 264), 292. 
 
 Commonwealth v. Wilkinson (16 
 
 Pick. 175; 24 Am. Dec. 624), 409. 
 Commonwealth v. Williams (6 
 
 Gray, 1), 519. 
 Commonwealth v. Wilson (14 Phila. 
 
 384), 292. 
 Commonwealth v. Wolf (3 Serg. & 
 
 R. 48), 177. 
 Commonwealth v. Wood (11 Gray, 
 
 86), 31. 
 Commonwealth v. Wyatt, (6 Band. 
 
 694), 24. 
 Concord B. E. Co. v. Greely (17 N. 
 
 H. 47), 379. 
 Conedy v. Marcy (13 Gray, 373), 
 
 361. 
 Coney v. Owen (6 Watts, 438), 367. 
 Conkey v. Hart (14 N. T. 22), 618. 
 Conn, Ex parte (13 Nev. 424), 281. 
 Conn. Biver B. E. Co. v. County 
 
 Comrs. (127 Mass. 60; 34 Am. 
 
 Bep. 338), 421. 
 Connolly v. Boston (117 Mass. 64; 
 
 19 Am. Bep. 396), 187. 
 Connors v. People (50 N. Y. 240), 
 
 94, 96. 
 Conway v. Caleb (37 111. 82), 519. 
 Conwell V. Bmrie (2 Ind. 35), 399. 
 Cook V. Gregg (46 N. Y. 439; 507. 
 Cook V. Hill (3 Sandf. 341), 50. 
 Cook o. MofEat (6 How. 295), 621. 
 Cook V. So. Park Comrs. (61 HI. 
 
 115), 420. 
 Cooley V. Wardens (12 How. 299), 
 
 628. 
 Cooper V. Cooper (76 III. 57), 364. 
 Cooper ». Utterbach (37 Md. 282), 
 
 62. 
 Cooper V. Williams (5 Ohio, 391 ; 
 
 24 Am. Dec. 299), 379. 
 Cooper V. Williams (7 Me. 273), 
 
 375. 
 Coosa Eiver St. B. Co. v. Barclay 
 
 (30 Ala. 120), 518. 
 Corbett v. Underwood (83 HI. 
 
 324), 265, 267. 
 
XXVlll 
 
 TABLE OF CASES CITED. 
 
 Cordes v. Miller (39 Mich. 581 ; 33 
 
 Am. Rep. 330), 439. 
 Corfleld v. Coryell (4 Wash. C. C. 
 
 380), 196. 
 Cornell v. Barnes (7 Hill, 35), 83. 
 Cornell v. State (6 Lea, 624), 24. 
 Corning v. McCullough (1 N. Y. 
 
 47), 518. 
 Corwin v. ST. Y. & Erie E. R. Co., 
 
 (18 N. Y. 42), 698. 
 Cosby V. Bailroad Co. (10 Bush, 
 
 288), 411. 
 Coster V. N. J. E. E. Co. (22 N. J. 
 
 227), 396. 
 Coster u. Mayor, etc. (43 N. Y. 
 
 399), 403. 
 Cotes V. Davenport (9 Iowa, 227), 
 
 33. 
 Coulson V. Harris (43 Miss. 728) . 
 Council BluSs v. Kansas City, etc., 
 
 E. B. Co. (45 Iowa, 338; 24 Am. 
 
 Eep. 773), 617. 
 County Court v. Griswold (58 Mo. 
 
 175), 380. 
 Cousins V. State (59 Ala. 113; 20 
 
 Am. Eep. 290), 282. 
 Cox V. Louisville, etc., E. E, Co. 
 
 (48 Ind. 178), 411. 
 Craft J). McConoughy (79 111.346), 
 
 249. 
 Craig V. Kline (65 Pa. St. 399; 3 Am. 
 
 Rep. 636), 620. 
 Craig V. Missouri (4 Pet. 35), 
 
 214. 
 Craig D. Railroad Co. (39.Barb. 449; 
 
 39 N. Y. 404), 418. 
 Cranston v. Mayor of Augusta (61 
 
 Ga. 572), 512. 
 Cratty v. Bangor (57 Me. 423; 2 
 
 Am. Eep. 56), 187. 
 Cravens v. Winter (38 Iowa, 471), 
 
 347. 
 Cravfford v. Branch Bauk (7 How. 
 
 279), 585. 
 Crawford v. Delaware (7 Ohio St. 
 
 459), 401, 402, 410. 
 
 Crawford v. Wick (18 Ohio, 190), 
 
 260. 
 Creal v. Keokuk (4 Greene, Iowa, 
 
 47), 401. 
 Crenshaw v. State River Co. (6 
 
 Rand. 245), 385. 
 Cronin v. People (82 N. Y. 318 ; 37 
 
 Am. Rep. 564), 312, 434. 
 Crossby v. Warren (1 Rich. L. 
 
 388), 429. 
 Croxall V. Shererd (5 Wall. 288), 
 
 339. 
 Cubbinson v. McCreery (7 Watts & 
 
 S. 262), 174. 
 Cummerfordu. McAvoy (16 111. 311), 
 
 64. 
 Cumminga v. Maxwell (45 Me. 190), 
 
 579. 
 Cummings v. Missouri (4 Wall. 
 
 277), 203. 
 Cummings v. Perham (1 Met. 555), 
 
 510. 
 Cunningham v. Brown (18 Vt. 
 
 123), 42. 
 Cunningham v. Mitchell (67 Pa. 
 
 St. 78), 82, 83. 
 Cunningham v. Welde (56 Iowa, 
 
 369), 346. 
 Cupp V. Comrs. of Seneca (19 Ohio 
 
 St. 173), 422. 
 Curran v. Shattuck (24 Cal. 427), 
 
 423. 
 Currie v. White (46 N. Y. 822), 
 
 265. 
 Currier jj.jMarietta, etc., E. E. Co. 
 
 (11 Ohio St. 228), 378, 397. 
 Curtis V. Whipple (24 Wis. 360), 
 
 385. 
 Cusack V. White (2 Mill, 279), 541, 
 
 542. 
 Cushman v. Smith (34 Me. 247), 
 
 421. 
 Caslc V. Douglass (3 Kans. 128), 
 
 520. 
 
TABLE OF CASES CITED. 
 
 XXIX 
 
 D. 
 
 Dalby v. India Life Ins. Co. (15 C. 
 
 B. 365), 261. 
 Dale V. Lyon (10 Jolins. 447 (6 Am. 
 
 Dec. 346), 64. 
 Dame v. Dame (38 N. H. 429), 
 
 369. 
 Danks v. Quackenbash (1 N. Y. 
 
 129), 517. 
 Dartmouth College Case (4 Wheat. 
 
 619), 72. 
 Dartmouth College v. Woodward 
 
 (4 Wheat. 418), 574. 
 Dash V. Van Kleek (1 Johns. 477), 
 
 76. 
 Davenport v. Kelly (7 Iowa, 109), 
 
 324. 
 Davenport v. Lynch (6 Jones L. 
 
 545), 63, 65. 
 Davidson v. B. & M. E. E. Co. (3 
 
 Cush. 91), 400, 401. 
 Davidson v. Johonnot (7 Met. 396), 
 
 359. 
 Davidson v. New Orleans (96 U. S. 
 
 97), 445. 
 Davidson v. Eamsay Co. (18 Minn. 
 
 481), 470. 
 Davie v. Wisher (72 III. 262), 63. 
 Davis V. Burrell (10 C. B. 821), 30. 
 Davis u. McNees (8 Humph. 40), 
 
 41. 
 Davis V. Merrill (47 N. H.208), 109. 
 Davis V. O'Farrell (4 Greene, 168), 
 
 347. 
 Davis V. Somerville (128 Mass. 594), 
 
 187. 
 Davis V. State (17 Ala. 854), 94. 
 Davis V. State (68 Ala. 58; 44 Am. 
 
 Eep. 128), 604. 
 Davis V. Wilson (61 111. 527), 53. 
 Day V. Cochrane (24 Miss. 261), 
 
 344. 
 Day V. State (7 Gill, 321), 463. 
 Dean v. Sullivan E. E. Co. (22 N. 
 
 H. 316), 395. 
 
 Deansville Cemetery Association, 
 
 matter of (66 N. Y. 569; 23 Am. 
 
 Bep. 86), 378, 386. 
 Decatur Co. v. Humphreys (47 Ga. 
 
 565), 377. 
 Decorah v. Dunstan (38 Iowa, 96). 
 Delaplaine v. Cook (7 Wis. 44), 
 
 519. 
 Delaware, etc., E. E. Co. v. Starrs 
 
 (69 Pa. St. 36), 257. 
 Del Costa v. Jones (Comp. 729), 
 
 261. 
 Delphi V. Evans (36 Ind. 90), 33, 
 
 377. 
 DeMill V. Lockwood (3 Blatchf. 
 
 56), 338. 
 Den V. Bolton (12 N. J. 206), 166. 
 Denny v. Tyler (3 Allen, 225), 109. 
 Denten v. English (8 Brev. 147), 
 
 541. 
 Deutzel v. Waldle (30 Cal. 144), 
 
 358. 
 Detroit V. Michigan (34 Mich. 125), 
 
 33. 
 Detroit v. Plankroad Co. (13 Mich. 
 
 140), 584. 
 Devries v. Phillips (63 N. C. 63), 
 
 94. 
 Dewees v. Miller (4 Harr. 347), 
 
 261. 
 Dial V. Holter (S Ohio St. 229), 60. 
 Dickey v. Tennison (27 Mo. 373), 
 
 381, 420. 
 Dickson's Exr. v. Thomas (97 Pa. 
 
 St. 278), 267. 
 Dieffendorf v. Eef. Col. Church (20 
 
 Johns. 12) 166. 
 Dietz V. Langfitt (63 Pa. St. 234), 62. 
 Dingley «. Boston (100 Mass. 644), 
 
 396, 446. 
 Dingman v. People (51 111. 277), 580. 
 Ditchburnt). Goldsmith (4 Campb. 
 
 152), 261. 
 Diver v. Diver (56 Pa. St. 106), 364. 
 Dobbins v. State (14 Ohio St. 493), 
 
 917. 
 
XXX 
 
 TABLE OF CASES CITED. 
 
 Doe V. Deavors (11 Ga. 79), 470. 
 Doeu. Douglass (8 Blackf.l0),8, 359. 
 Donnaher's Case (16 Miss. 649) , 
 
 411. 
 Donahue v. Richards (38 Me. 376), 
 
 161. 
 Done u. People (5 Park. 364), 21. 
 Donnelly. State (48 Miss. 661), 232. 
 Donnelly ». Decker (58 Wis. 461; 
 
 46 Am. Bep. 637), 445. 
 Dorman v. State (34 Ala. 232), 8. 
 Dorman v. State (34 Ala. 216), 308. 
 Dorsey, matter of (7 Port. (Ala.) 
 
 293), 203. 
 Dothage v. Stuart (36 Mo. 570), 
 
 367. 
 Doty V. Burdick (83 111. 473), 29. 
 Dougherty v. Commonwealth (69 
 
 Pa. St. 286), 86. 
 Doughty V. Conover (42 N. J. L. 
 
 192), 451. 
 Douglass V. Pike Co. (101 U. S. 
 
 677), 615. 
 Douglass V. Turnpike Co. (32 Md. 
 
 219), 409. 
 Dowling 0. Mississippi (13 Miss. 
 
 664), 79. 
 Downing v. Porter (8 Gray, 639), 
 
 465. 
 Doyle V. Ins. Co. (94 U. S. 535), 
 
 692. 
 Draining Co. Case (11 La. Ann. 
 
 338), 445. 
 Drehman v. Stifel (41 Mo. 184; 8 
 
 Wail. 595), 517. 
 Drehman v. Stifle (8 Wall. 595), 73. 
 Drenan v. People (10 Mich. 169), 
 
 84. 
 Dronberger v. Beed (11 Ind. 420), 
 
 422. 
 Dubs w. Dubs (31 Pa. St. 154), 
 
 345. 
 Duncan v. Burnett (11 S. C. 333; 32 
 
 Am. Bep. 476), 520. 
 Duncan v. Thwaites (3 B. & C. 656), 
 
 68. 
 
 Dunham v. Powers (42 Vt. 1), 42. 
 Dunham v. Rochester (5 Cow. 462), 
 
 272. 
 Dunlap V. Glidden (31 Me. 436), 42. 
 Dunlap V. Hunting (2 Denio, 643), 
 
 83. 
 Dunlap V. Snyder (17 Barb. 561), 
 
 508. 
 Dunman v. Strother (1 Tex. 89), 
 
 261. 
 Dunn V. City Council (Harp. 129), 
 
 394. 
 Dunn V. Sargent (101 Mass. 336), 
 
 344, 346. 
 Dunn V. Winters (2 Humph. 512), 
 
 50. 
 Durham ». Angler (20 Me. 242), 346. 
 Durach's Appeal (62 Pa. St. 491), 
 
 472. 
 Dustin V. Cowdry (23 Vt. 631), 29. 
 
 E. 
 
 Eames v. State (6 Humph. 63), 84. 
 Eames v. Whittaker (123 Mass. 342), 
 
 41. 
 Earl V. Camp (16 Wend. 562), 83. 
 East Kingston c. Towle (48 N. H. 
 
 57; 2 Am. Bep. 170), 513, 519. 
 East St. Louis b. Wehrung (46 111. 
 
 392), 273. 
 Eaton p. Boston, C. & M. B. R. Co. 
 
 (51 N. H. 504), 376, 397. 
 Eaton V. Eeegan (114 Mass. 433), 
 
 208. 
 Edgecombe v. Burlington (46 Vt. 
 
 118), 386. 
 Edgerton estate (69 Ind. 688), 187. 
 Edgewood B. B. Co.'s Appeal (79 
 
 Pa. St. 277), 379. 
 Edings V. Seabrook (12 Bich. L. 
 
 604), 400. 
 Edwards v. Davis (16 Johns. 281), 
 
 664. 
 Edwards v. Jagers (19 Ind. 407), 675. 
 Edwards v. Kearzey (96 U. S. 696), 
 
 521. 
 
TABLE OF CASES CITED. 
 
 XXXI 
 
 Edwards v. Pope (4 111. 473), 358. 
 Blam V. Badger (23 111. 498), 36. 
 Eldridge v. Smith (34 Vt. 484), 396. 
 Elliott V. Brown (2 Wend. 497), 26. 
 Elliott-B. Fair Haven, etc., R. R. Co. 
 
 (32 Conn. 679), 395,418. 
 Elliott V. Fitchburg R. E. Co. (10 
 
 Gush. 191), 450. 
 Ellis V. Jones (51 Mo. 180), 518. 
 Ellis V. Pac. R. R. Co. (51 Mo. 200), 
 
 877. 
 Embury i;. Conner (3 N. Y. 511), 
 
 379, 395. 
 Emonert v. Hays (59 111. 11), 342, 
 
 357. 
 Emporia v. Soden (28 Eans. S88 ; 37 
 
 Am. Rep. 265), 398. 
 Emporia v. VoUmer (12 Kans. 622), 
 
 277. 
 English V. State (35 Tex. 472; 14 
 
 Am. Rep. 374), 503. 
 Ersliine v. Hohnbach (14 Wall. 613), 
 
 82. 
 Errine's Appeal (16 Pa. St. 256), 359. 
 Erwln V. State (29 Ohio St. 186), 26. 
 Escauaba Company v. Chicago (107 
 
 U.S. 678), 619. , 
 Eslave v. Farmer (7 Ala. 543), 342. 
 Estep V. Hutchman (14 Serg. &R. 
 
 435), 359. 
 Estes V. Redsey (8 Wend. 560), 30. 
 Evans v. Montgomery (4 Watts & 
 
 S.218), 76, 517, 518. 
 Evergreen Cemetery v. New Haven 
 
 (43 Conn. 234), 386. 
 Everingham v. Melghan (55 Wis. 
 
 354), 267. 
 Ewing V. Sandford (19 Ala. 605), 62. 
 Exempt Firemen's Fand v. Roome 
 
 (93 N. T. 313; 46 Am. Rep. 217), 
 
 592. 
 
 Fagnan v. Knox (65 N. T. 626), 61. 
 Fairchllds v. Adams (11 Cush. 649), 
 50. 
 
 Falconer v. Campbell (2 McLean, 
 
 195), 76. 
 Fales V. Wadsworth (23 Me. 553), 
 
 519. 
 Fanning v. Gregory (16 How. 524), 
 
 621. 
 Fareira v. Gabell (89 Pa. St. 89), 
 
 265. 
 Faris v. Starke (3 B. Mon. 4), 61. 
 Farley v. Dowe (45 Ala. ^24), 520. 
 Farmer v. Lewis (1 Bush (Ky.), 
 
 66), 495. 
 Farmers' Loan, etc., Association v. 
 
 Stone (U. S. C. C. Miss., 18 Cent. 
 
 L.J. 472), 691. 
 Farmers' & Mechanics' Bk v. Smith 
 
 (6 Wheat. 131), 621. 
 Farnam v. Feeley (65 N. Y. 551), 
 
 61. 
 Farness v. Fox (1 Cush. 134), 339. 
 Farnsworth Co. v. Lisbon (62 Me. 
 
 461), 473. 
 Farnsworth v. Storrs (5 Cush. 412), 
 
 60. 
 Farr v. Rasco (9 Mich. 353), 54. 
 Farrington v. Tennessee (95 TJ. S. 
 
 679), 676. 
 Fawcetti). Charles (13 Wend. 473), 
 
 56. 
 Fell V. State (42 Md. 1; 20 Am. 
 
 Sep. 83), 288, 583. 
 Fenwick v. Gill (38 Mo. 510), 367. 
 Ferraria v. Vasconcellos (31 111. 
 
 25), 165. 
 Ferrier, Ex parte (103 111.367; 42 
 
 Am. Rep. 10), 135, 559. 
 Ferring v. Irwin (55 N. Y. 486), 
 
 403. 
 Ferris v. Bramble (5 Ohio St. 109), 
 
 381. 
 Fertilizing Co. v. Hyde Park (97 U. 
 
 S. 25), 581. 
 Field V. Des Moines (39 Iowa, 576), 
 
 399. 
 Fillebrowne v. Grand Trunk, etc., 
 
 Co. (65 Me. 462), 256, 257. 
 
XXXll 
 
 TABLE OF CASES CITED. 
 
 Fire Department of Milwaukee v. 
 
 Helfenstein (16 Wis. 136), 692. 
 Fisher©. Forrester (33 Pa. St. 501), 
 
 63, 65. 
 Fisher v. Horricon Co. (10 Wis. 
 
 351), 386. 
 Fisher v. Manufacturing Co. (12 
 
 Pick. 67), 385. 
 Fisher v. McGirr (1 Gray, 26), 804, 
 
 463. 
 Fisher v. Provin (25 Mich. 347), 
 
 364. 
 Fisher's Case (6 Leigh, 619), 203. 
 Fitchburg E. K. Co. v. Grand Junc- 
 tion B. E. Co. (1 Allen, 552 ; 4 
 
 Allen, 198), 699. 
 Fitzgerald v. Eobinson (112 Mass. 
 
 371), 37, 166. 
 Fletcher v. Fletcher (1 El. & El. 
 
 420), 109. 
 Fletcher v. Peck (6 Cranch, 81), 
 
 76. 
 Flickinger v. Wagner (46 Md. 581), 
 
 62. 
 Flint V. Pike (4 B. & C. 473), 57. 
 Flint V. WoodhuU (25 Mich. 99), 
 
 575. 
 Foley V. People (1 111. 31), 80. 
 Fouville V. Casey (1 Murphy, 389) , 
 
 265. 
 Foote V. State (59 Md. 264), 24. 
 Forbes o. Halsey (26 N. Y. 563), 
 
 519. 
 Forbes v. Johnson (11 B. Mon. 48), 
 
 41, 49. 
 Ford V. Chicago, etc., E. E. Co. (14 
 
 Wis. 609), 375, 411. 
 Foster v. Essex Bank (10 Mass. 
 
 245), 586. 
 Foster v. Soripps (39 Mich. 376 ; 33 
 
 Am. Eep. 403), 52. 
 Fountain v. Draper (49 111. 441), 
 
 303. 
 Fowler v. Chichester (26 Ohio St. 
 
 9), 54. 
 Fowler v. Halbert (4 Bibb, 54), 367. 
 
 Fowler, matter of (53 N. T. 60), 
 
 376. 
 Fowles V. Bowen (30 N. Y. 20), 37. 
 Fox V. Ohio (5 How. 410), 15, 628. 
 Fox V. W. P. E. E. Co. (31 Cal. 588), 
 
 421. 
 Frank, Ex parte (52 Cal. 606 ; 28 Am. 
 
 Eep. 642), 282. 
 Frankford, etc., R. E. Co. v. Phila- 
 delphia (58 Pa. St, 119), 579. 
 Frankfort, etc., R. Co. v. Philadel- 
 phia (58 Pa. St. 119), 272. 
 Franklin Bank v. Cooper (36 Me. 
 
 179), 585, 686. 
 Frasher ». State (3 Tex. App. 263), 
 
 637. 
 Franz v. Eailroad Co. (55 Iowa, 
 
 107), 396, 403, 409,415. 
 Freleigh v. State (8 Mo. 606), 291. 
 French v. Camp (18 Me. 433), 617. 
 French v. White (24 Conn. 174), 
 
 380. 
 Fretwell v. Troy (18 Kans. 271), 
 
 273. 
 Friend v. Woods (6 Gratt. 139), 
 
 256. 
 Frolickstein v. Mobile (40 Ala. 725), 
 
 185. 
 Frommer v. Richmond (31 Gratt. 
 
 646), 272. 
 Fry V. State (63 Ind. 552), 292. 
 Fuhr V. Dean (26 Mo. 116), 30. 
 Fuller V. Edings (11 Eich. L. 239), 
 
 400. 
 Furman Street, matter of (17 Wend. 
 
 649), 401. 
 
 9. 
 
 Gabel v. Houston (29 Tex. 335), 
 
 310. 
 Gaggans v. Turnipseed (1 S. C. 40 ; 
 
 7 Am Rep. 23), 515. 
 Gaines v. Union Transp. Co. (28 
 
 Ohio St. 418), 267. 
 Gallaway v. Burr (32 Mich. 332), 
 
 61. 
 
TABLE OF CASES CITED. 
 
 XXXlll 
 
 Galveston, etc., R. R. Co. v. Gierse 
 
 (61 Tex. 189), 597. 
 Garcia v. Territory (1 New Mex. 
 
 415) 24. 
 Gardner v. Newburg (2 Johns. Ch. 
 
 162; 7 Am. Dec. 526), 380,392. 
 
 398. 
 Garland, Ex parte (4 Wall. 333), 72, 
 
 73, 203. 
 Garr v. Selden (4 N. Y. 91) 41, 42. 
 Garrett B. ChesMra (69 N. C. 396; 
 
 12 Am. Rep. 647), 521. 
 Gatlin v. Tarboro (78 N. C. 419) 
 
 282, 283. 
 Gaussby v. Perkins (30 Mich. 492) 
 
 303. 
 Gavin v. Burton (8 Ind. 69) 531. 
 Gee V. Patterson (63 Me. 49), 61. 
 Georgia Penitentiary Co. v. Nelms 
 
 (65 Ga. 499 ; 38 Am. Rep. 793), 99. 
 Gerard v. People (4 111. 363), 96. 
 German Congregation v. Pressler 
 
 (17 La. Ann. 127), 165. 
 Germaniac. State (7 Md. 1), 272. 
 Gibbon V. Ogden (9 Wheat. 1), 605, 
 
 610. 
 Gibbs V. Gale (7 Md. 76), 519. 
 Giesy v. Cincinnati, etc., R. R. Co. 
 
 (4 Ohio St. 308), 395, 396. 
 Gilbert c. People (1 Denio, 41), 44. 
 Gilbert v. Showerman (23 Mich. 
 
 448), 34. 
 Gillam v. Sioux City, etc., R. R. 
 
 Co. (26 Minn. 268), 597. 
 Gillinwater v. Miss., etc., R. R. 
 
 Co. (13 111. 1), 377. 
 Gilman v. Lockwood (4 Wall. 409), 
 
 521. 
 Gilman v. Philadelphia (3 Wall. 
 
 712), 619. 
 Gilmer v. Lime Point (18 Cal, 229), 
 
 376, 378. 
 Gilmore v. Woodcock (69 Me. 118), 
 
 261. 
 Glascock V. Bridges (16 La. Ann.. 
 
 672) 65. 
 
 Glossom u. McFerran (79 Ky. 236) 
 
 365. 
 Glover v. Powell (10 N. J. Eq.211), 
 
 397. 
 Goddard v. Jacksonville (15 111. 
 
 588), 304. 
 Goelett V. Gori (31 Barb. 314) 364. 
 Good V. Elliott (3 T. R. 993), 260. 
 Good V. Zercher (12 Ohio, 368), 358. 
 Goodell V. Jackson (20 Johns. 693, 
 
 710), 143. 
 Goodenough v. McGrew (44 Iowa, 
 
 670), 303. 
 Goodman v. Han. and St. Jo. R. R. 
 
 Co. (45 Mo. 33), 366. 
 Goodman v. State (Meigs, 197) 93. 
 Gore V. Martin (66 N. C. 371), 82. 
 Gorgan v. State (44 Ala. 9), 96. 
 Gorman*. Pac. R. R. Co. (26 Mo. 
 
 441), 580, 597. 
 Goshern v. Kern (63 Ind. 468), 284. 
 Goshen v. Storlington (4 Conn. 259), 
 
 5. 
 Goslint). Cannon (1 Harr. 3), 37, 
 
 41. 
 Gottbehuet v. Hubachek (36 Wis. 
 
 515), 62. 
 Gould ». Gardner (8 La. Ann. 11), 
 
 63. 
 Gould V. Hudson River R. R. Co. 
 
 (6N. Y. 522), 398, 400. 
 Gove V. Blethen (21 Minn. 80; 18 
 
 Am. Rep. 380), 52. 
 Gowen v. Penobscot R. R. Co. (44 
 
 Me. 140), 579, 583, 585. 
 Gozzler v. Georgetown (6 Wheat. 
 
 593), 401. 
 Grace v. Mitchell (31 Wis. 633), 83. 
 Grammar School v. Burt (11 Vt. 
 
 632), 574. 
 Grand Rapids Booming Co. «. Jarvis 
 
 (30 Mich. 308), 397. 
 Grand Rapids, etc., R. R. Co. v. 
 
 Heisel (38 Mich. 62 ; 31 Am. Rep. 
 
 306), 402, 416. 
 Grant v. Courten, (24 Barb. 232), 8. 
 
XXXIV 
 
 TABLE OF CASES CITED. 
 
 Grant v. Hamilton (3 McL. 100), 
 
 261. 
 Graves v. Otis (2 Hill, 466), 401. 
 Gray v. Coffin (9 Cash. 200), 585. 
 Gray v. First Division, etc. (13 
 
 Minn. 315), 411. 
 Gray v. Harris (107 Mass. 492 ; 9 
 
 Am. Rep. 61), 450. 
 Gray«. Hornbeck (31 Mo. 400), 361. 
 Gray i;. Kimball (42 Me. 299), 463. 
 Gray«.Pentland (2 Serg. & E. 23), 
 
 49. 
 Great Falls Manfg. Co. v. Fernald 
 
 (47 N. H. 444), 385. 
 Great West. R. R. Co. v. Hawkins 
 
 (17 Micii. 57; 18 Mich. 427), 257. 
 Green w. Goddard (2 Salt. 641), 28. 
 Green v. Portland (32 Me. 431), 402. 
 Green i>. Reading (9 Watts, 382),401, 
 Green i;. State (58 Ala. 190; 29 Am. 
 
 Rep. 739), 537. 
 Green i;. Swift (47 Cal. 536), 400. 
 Greenough v. Greenough (11 Pa. St. 
 
 489), 357. 
 Gregory v. Wattoma (58 Iowa, 711), 
 
 267. 
 Gregorys. Wendall (39 Mich. 337), 
 
 267, 269. 
 Griffin v. Griffin (8 B. Mon. 120), 
 
 542. 
 Griffin v. Wilcox (21 Ind. 370), 516. 
 Griffith V. Commissioners (20 Ohio, 
 
 609), 5. 
 Griffs t,. Sellars (4 Dev. & Bat. 
 
 176), 61. 
 Grills «. Jonesboro (8 Baxt. 247), 
 
 310. 
 Grimes v. Coyle (6 B. Mon. 301), 
 
 37, 41. 
 Grinnell v. West. Union Tel. Co. 
 
 (113 Mass. 299; 18 Am. Rep. 485), 
 
 259. 
 Griswold v. Bragg (48 Conn. 679), 
 
 367. 
 Groesbeck v. Seeley (13 Mich. 329), 
 
 519. 
 
 Grosvenor v. United Society (118 
 
 Mass. 78), 166. 
 Grore v. Brandenburg (7 Blackf. 
 
 234), 42. 
 Grover e. Jones (62 Mo. 68), 364. 
 Grumon v. Raymond (1 Conn 39), 
 
 83. 
 Guerin v. Moore (26 Minn. 462), 
 
 346. 
 Guild V. Rogers (8 Barb. 602), 618. 
 Guilford v. Supervisors (13 N. Y. 
 
 143), 8. 
 Guillotte V. New Orleans (12 La. 
 
 Ann. 432), 237. 
 Gunn V. Barry (15 Wall. 610), 521. 
 Gunarrsohn*. Sterling (92 HI. 669), 
 
 273. 
 Gunnison ». Twitchell (38 N. H. 
 
 68), 345. 
 Gut V. State (9 Wall. 35), 79. 
 Guyer v. Andrews (11 111. 494), 83- 
 
 H. 
 
 Haas V. Chicago & N. W. R. R. Co. 
 
 (41 Wis. 44), 599. 
 Hadgar v. Supervisors (47 Cal. 222), 
 
 446. 
 HaightD. Cornell (15 Conn. 74), 50. 
 Haile v. State (38 Ark. 664 ; 42 Am. 
 
 Rep. 3), 503. 
 Hale V. Everett (53 N. H. 9), 165. 
 Hale V. Lawrence (1 Zab. 714; 3 
 
 Zab. 590), 3. 
 Hale o. Hawkins (6 Humph. 357), 
 
 61. 
 Halloway v. Sherman (12 Iowa, 
 
 282), 518. 
 Ham V. Kendall (111 Mass. 98), 
 
 366. 
 Ham V. Salem (100 Mass. 350), 
 
 380. 
 Hamersly v. New York (56 N. Y. 
 
 633), 421. 
 Hamilton v. Eno (81 N. Y. 116), 52. 
 Hamilton v. Keith (5 Bush, 468), 
 
 575. 
 
TABLE OF CASES CITED. 
 
 XXXV 
 
 Hamilton v. Lomax (26 Barb. 615), 
 
 531. 
 Hamilton i). St. Louis Co. (15 Mo. 
 
 23), 8. 
 HammettB. Philadelphia (65 Pa. St. 
 
 U6; 3 Am. Rep. 615), 581. 
 Hammond v. Haines (25 Md. 541), 
 
 273. 
 Hampden v. Walsh (L. E. 12 B. D. 
 
 192), 261. 
 Hampton v. Wilson (4 Dev. 468), 
 
 54. 
 Hand v. Ballou (12 N. Y. 641), 519. 
 Hanton ». Small (3 Sandf. 230), 265. 
 Happy v. Morton (93 111. 398), 165. 
 Harbor Comrs. v. Pashley (19 S. C. 
 
 315), 625. 
 Hardeman ». Downer (39 Ga. 425), 
 
 520. 
 Harden v. Comstock (2 A. K. 
 
 Marsh. 480; 12 Am. Dec. 168), 43. 
 Harding e. Funk (8 Kan. 315), 385. 
 Harding u. Goodlett (3 Yerg. 40; 
 
 24 Am. Dec. 546), 378. 
 Harding v. Stanford Water Co. (41 
 
 Conn. 87), 397. 
 Harkrader v. Moore (44 Cal. 144; , 
 
 62. 
 Harmon v. Dreher (2 Speer's Eq. 
 
 87), 166. 
 Harmony v. Mitchell (1 Blatchf. 
 
 649), 495. 
 Harp®. Osgood (2 Hill, 216), 81. 
 Harper v. Richardson (22 Cal. 251), 
 
 421. 
 HarphamB. Whitney (77 HI. 32), 
 
 62. 
 Harrigan v. Conn. River Lumber 
 
 Co. (129 Mass. 680; 37 Am. Rep 
 
 887), 620. 
 Harris v. Huntington (2 Tyler, 129 ; 
 
 4 Am. Dec. 728), 49. 
 Harris v. Lumbridge (83 N. Y. 92), 
 
 266, 267, 268. 
 Hart V. People (26 Hun, 896), 291. 
 Hart V. State (40 Ala. 82), 79. 
 
 Hartung «. People (22 N. Y. 95, 
 
 105), 77. 
 Harrison v. Baltimore (1 Gill, 264), 
 
 102. 
 Harrison v. Harrison (43 Vt. 417), 
 
 28. 
 Harrison u. IS. O., etc., R. E. Co. 
 
 (84 La. Ann. 462; 44 Am. Rep. 
 
 438), 416. 
 Harvey v. Brydges (13 M. & W. 
 
 487), 30. 
 Harvey v. Lackawanna, etc., R. R. 
 
 Co. (47Pa. St. 428), 400. 
 Harvey ». Thomas (10 Watts, 63), 
 
 881. 
 Hastings «. Lusk (22 Wend. 410; 
 
 34 Am. Dec. 380), 48, 44. 
 Hatch V. Douglass (48 Conn. 116), 
 
 267. 
 Hatch V. Lane (105 Mass. 394), 36, 
 
 37. 
 Hatch V. Vt. Cent. R. R. Co. (25 Vt. 
 
 49), 398,400. 
 Hatfield u. Gano (15 Iowa, 177), 81. 
 Hathorn v. Lyon (2 Mich. 93), 
 
 344. 
 Hathorn v. Stinson (12 Me. 183), 
 
 451. 
 Haverhill Bridge Prop, and County 
 
 Comrs. (103 Mass. 120; 4 Am. 
 
 Rep. 518), 421. 
 Hawkins v. Lumsden (10 Wis. 359), 
 
 64. 
 Hawthorn v. Calef (2 Wall. 10), 618, 
 
 674. 
 Hay o. Cohoes Company (3 Barb. 
 
 47), 385. 
 Hay u. Kennedy (41 Pa. St. 878), 
 
 256. 
 Haynes v. Burlington (38 Vt. 360), 
 
 394, 397. 
 Haynes v. Carter (9 La. Ann. 266), 
 
 580. 
 Haynes v. State (17 Ga. 465), 26. 
 Haynes v. Thomas (7 Ind. 38), 402. 
 Hays V. Risher (32 Pa. St. 169), 876. 
 
XXXV 1 
 
 TABLE OF CASES CITED. 
 
 Hayward v. Mayor of N. Y. (7N. Y. 
 
 314), 396. 
 Hazen v. Essex Company (12 Cush. 
 
 475), 386. 
 Head v. Goodwin (37 Me. 181), 265. 
 Heald v. Builders' Ins. Co. (Ill 
 
 Mass. 88), 266. 
 Hector v. State (2 Mo. 166), 97. 
 Hedderich v. State (101 Ind. 564 ; 
 
 51 Am. Eep. 768), 310. 
 Hellams o. Abercrombie (15 S. C. 
 
 110), 187. 
 Hemingway v. Scales (42 Miss. 1; 
 
 2 Am. Eep. 586), 364. 
 Henderson's Distilled Spirits (14 
 
 Wall. 44), 284, 463. 
 Hendirckson v. Decon (1 N. J. Eq. 
 
 577), 166. 
 Hennesey v. People (21 How. Pr. 
 
 239), 439. 
 Henry v. Dubuque, etc., E. E. Co, 
 
 (10 Iowa, 540), 423. 
 Henry v. Dubuque & Pac. R. R. Co. 
 
 (2 Iowa, 288), 395. 
 Henry v. Underwood (1 Dana, 247), 
 
 375. 
 Henson v. Moore (104 111. 403), 344, 
 
 346. 
 Hepburn v. Griswold (8 Wall. 603), 
 
 213, 606. 
 Herber v. State (7 Texas, 69), 24, 
 
 77. 
 Herrick v. Randolph (13 Vt. 625), 
 
 472. 
 Hess V. Baltimore, etc., Eailroad 
 
 Co. (52 Md. 242; 36 Am. Eep. 
 
 371), 418. 
 Hess V. Johnson (3 W. Va. 645), 
 
 517. 
 Hewitt V. Charrier (16 Pick. 353), 
 
 204. 
 Heyne v. Blair (62 N. Y. 19), 61. 
 Hey Sing Jack v. Anderson (57 Cal. 
 
 261), 465, 498. 
 Hey ward v. Mayor (7 N. Y. 324), 
 
 368, 359. 
 
 Hibbard v. People (4 Mich. 126), 
 
 463. 
 Hibblewhite v, McMorine (6 M. & 
 
 W. 58), 265. 
 Hickman's Case (4 Harr. 580), 381. 
 Hilbourne v. Fogg (99 Mass. 11), 30. 
 Hildreth v. Lowell (11 Gray, 345), 
 
 380. 
 HiU V. Decatur (22 Ga. 203), 273. 
 Hill V. Kessler (63 N. C. 437), 520. 
 Hill V Miles (9 N. H. 9), 49. 
 HUl V. Wait (5 Vt. 124), 83. 
 Hills V. Miller (3 Paige, 256), 404. 
 Hilton V. Eckersley (6 El. & BI. 47, 
 
 66), 246. 
 Hinckley v. Baxter (13 Allen, 139), 
 
 366. 
 Hinchman v. E. R. Co. (17 N. J. Eq. 
 
 75; 20 N. J. Eq. 360), 418. 
 Hinchman v. Richie (2 Law Eep. 
 
 (N. 8.) 180), 109. 
 Hinckley v. Penobscot (42 Me. 89), 
 
 187. 
 Hinde .,. Gray (1 M. & G. 195), 249. 
 Hinman v. Chicago, etc., E. R. Co. 
 
 (28 Iowa, 491), 598. 
 Him V. State (1 Ohio St. 16), 681. 
 Hirsh V. State (21 Gratt. 786), 273, 
 
 282. 
 Hitchcock V. Coker (6 Ad. & El. 
 
 438), 249. 
 Hoar V. Wood (3 Mete. 193), 44. 
 Hoare v. Silverlock (9 C. B. 20), 66. 
 Hobart v. Milwaukee, etc., E. E. Co. 
 (27 Wis. 194; 9 Am. Rep. 461), 
 419. 
 Hobbs, Exrel. (1 Woods, 537), 637. 
 Hockett 0. State (Sup. Ct. Ind., 
 
 Cent. L. J., July 9, 1886), 590. 
 Hoffman v. State (20 Md. 475), 96. 
 Hoffman v. Steigers (28 Iowa, 302), 
 
 364. 
 Holbrook v. Finney (4 Mass. 566; 
 
 3 Am. Dec. 243), 340. 
 HoUiday v. Sterling (62 Mo. 321). 
 62. 
 
TABLE OF CASES CITED, 
 
 XXX Vll 
 
 HoUister v. Nowlen (If ., -iid. 234), 
 
 257. 
 Hollo way v. Commonwealth (11 
 
 Bush, 344), 26. 
 Holly V. Mix (3 Wend. 360), 84. 
 Holyoke Co. v. Lyman (15 Wall. 
 
 600), 451, 675. 
 Home Ins. Co. v. Augusta (50 Ga. 
 
 630;, 272, 281. 
 Homestead Cases (22 Gratt. 266; 
 
 12 Am. Rep. 507), 521. 
 Hood 1). Finch (8 Wis. 381), 420. 
 Hook v. Hackney (16 Serg. & B. 
 
 385), 52. 
 Hooker v. Haven, etc., Co. (16 
 
 Conn. 146; 36 Am. Dec. 477), 
 
 422. 
 Hooker v. Miller (37 Iowa, 613 ; 18 
 
 Am. Eep. 18), 28. 
 Hooker v. New Haven, etc., B. B. 
 
 Co. (14 Conn. 186), 397, 400. 
 Hooker v. Vandewater (4 Denio, 
 
 340), 249, 251. 
 Hooper v. Bridgewater (102 Mass. 
 
 512), 880. 
 Hooper v. Wells (27 Cal. 11), 257. 
 Hoover ». State (59 Ala. 59), 537. 
 Hopt V. Utah (110 XJ. S. 574), 76. 
 Horn V. Atlantic, etc., E. E. Co. 
 
 (35 N. H. 169), 598, 599. 
 Hornby ». Close (L. E. 2 Q. B. 183), 
 
 246. 
 Home V. Ashford (3 Bing. 322), 
 
 249. 
 Horton v. Hendershot (1 Hill, 118), 
 
 83. 
 Hosmer i>. Loveland (19 Barb. Ill), 
 
 50. 
 Hotchkiss V. Oliphant (2 Hill, 510- 
 
 513), 52. 
 House of Refuge v. Byan (37 Ohio 
 
 St. 197), 559. 
 Houston, etc., B. R. Co. v. Odum 
 
 (53 Tex. 343), 411. 
 Howard v. Kentucky, etc., Ins. Co. 
 
 (13 B. Mon. 282), 583. 
 
 Howard v. Moot (64 N. Y. 262), 519. 
 Howard ». Proctor (7 Gray, 128), 
 
 82. 
 Howard v. Thompson (21 Wend. 
 
 319), 49. 
 Howard v. Zeyer (18 La. Ann. 407), 
 
 367. 
 Huber v. Eeilly (53 Pa. St. 115), 76. 
 Huckenstein's Appeal (70 Pa. St. 
 
 102; 10 Am. Eep. 669), 34. 
 Hudson B.Geary (4 E. I. 485), 177, 
 
 310. 
 Hulett V. Inlow (57 Ind. 412; 26 
 
 Am. Eep. 64), 364. 
 Hull V. Hull (48 Conn. 250), 265. 
 Humes v. Mo. Pac. E. E. Co. (82 
 
 Mo. 22; 52 Am. Eep. 369), 598. 
 Humes v. Tabor (1 E. I. 464), 465. 
 Hunscom v. Hunscom (15 Mass. 
 
 184), 174. 
 Hunt V. Bennett (19 N. Y. 173), 52. 
 Hunt c.Peake (5 Cow. 475), 531. 
 Hunter v. Burnsville Pike Co. (56 
 
 Ind. 213), 586. 
 Huntington v. Chessbro (57 Ind. 
 
 74), 272. 
 Hunting v. Johnson (66 N. C. 189), 
 
 346. 
 Huntley v. Eice (10 East, 22), 261. 
 Hunt's Lessee v. McMahon (5 Ohio, 
 
 132), 367. 
 Hntchlns u. Com. (2 Va. Cas. 831), 
 
 535. 
 Hutton V. City of Camden (39 N. J. 
 
 122; 23 Am. Eep. 209), 428. 
 Hylton V. United States (3 Dall. 
 
 171), 469. 
 
 Illinois Cent. E. E. Co. v. Arnold 
 
 (47 111. 173), 598. 
 Hlinois Cent. E. E. Co. v. Bead (87 
 
 111. 484), 258. 
 Ilsley V. Nichols (12 Pick. 270), 465. 
 Imhoff V. Whitmer (21 Pa. St. 243), 
 497. 
 
XXXVUl 
 
 TABLE OF CASES CITED. 
 
 Imlay v. Union Branch R. R. Co. 
 
 (26 Conn. 249), 395, 410, 411. 
 Indian Bagging Co. v. Cock & Co. 
 
 (14 La. Ann. 164), 251. 
 Indiana Cent. R. W. Co. ■<>. Gapen 
 
 (10 Ind. 292), 598. 
 Indiana Cent. R. R. Co. v. Mundy 
 
 (21 Ind. 48), 258. 
 Indianapolis, etc., E. R Co. v. Al- 
 len (31 Ind. 394), 257. 
 Indianapolis, etc., R. R. Co. v. 
 
 rowler (22 Ind, 316), 597. 
 Indianapolis, etc., E. R. Co. i>. Ker- 
 
 cheval (16 Ind. 84), 581, 597. 
 Indianapolis, etc., R. R. Co. v. Mar- 
 shall (27 Ind. 300), 597. 
 Indianapolis R. R. Co. v. Smith (52 
 
 Ind. 428), 402. 
 Inge V. Police Jury (14 La. Ann. 
 
 117), 380. 
 Inglis V. Sailor's Snug Harbor (3 
 
 Pet. 99), 139. 
 Inhabitants of Springfield v. Conn. 
 
 River R. R. Co. (4 Cush. 71), 
 
 410. 
 Inland Fishery Comrs. v. Holyoke 
 
 Water Power Co. (104 Mass. 
 
 446), 575. 
 Inman Steamship Co. t>. Tinker 
 
 (94 U.S. 238), 625. 
 Intoxicating Liquor Cases ( 25 
 
 Kans. 751; 37 Am. Rep. 284), 324. 
 Iron R. R. Co. v. Ironton (19 Ohio 
 
 St. 209), 375. 
 Iron R. R. Co. v. Lawrence Fur- 
 nace Co. (29 Ohio St. 208), 590. 
 Israel v. Brooks (23 III. 575), 61. 
 
 Jackson v. Burns (3 Blnn. 85), 139. 
 Jackson v. Butler (8 Minn. 117), 
 
 516. 
 Jackson v. Commonwealth (19 
 
 Gratt. 656), 86, 93. 
 Jackson v. Edwards (7 Paige, 391; 
 
 22 Wend, 498), 345. 
 
 Jackson v. Hathaway (15 Johns. 
 
 447), 395. 
 Jackson v. Lyon (9 Cow. 664), 344. 
 Jackson v. Rutland, etc., R. R. Co. 
 
 (25 Vt. 150), 395. 
 Jacobs V. AUard (42 Vt. 303; 1 Am. 
 
 Rep. 331), 449. 
 Jacobs V. Cone (5 Serg. & B. 335), 
 
 86. 
 Jacobs, matter of (98 N. Y. 98), 
 
 196, 312, 430. 
 Jacobus 1). St. Paul, etc., R. R. Co. 
 
 (20 Minn. 125), 258. 
 Jacoway v. Denton (23 Ark. 641), 
 
 515. 
 James v. Rowland (42 Md. 462), 357. 
 Janes, matter of (30 How. Pr. 446), 
 
 115, 116. 
 Jarvls V. Hathaway (3 Johns. 180), 
 
 41. 
 Jeck V. Anderson (57 Cal. 261 ; 40 
 
 Am. Rep. 116), 498. 
 JeffersonvlUe, etc., R. E. Co. v. 
 
 Nichols (30 Ind. 321;, 698. 
 Jenkins v. Jenkins (82 N. C. 202), 
 
 346. 
 Jennings v. Paine (4 Wis. 358), 43, 
 
 44. 
 Jerome v. Ross (7 Johns. Ch. 315 ; 
 
 11 Am. Dec. 484), 392. 
 Joannes v. Bennett (5 Allen, 170), 
 
 37. 
 John and Cherry Street (19 Wend. 
 
 676), 358. 
 Johns V. State (65 Md. 350), 93. 
 Johns V. State (78 Ind. 332), 177, 
 
 186. 
 Johnson v. Atlantic, etc., R. R. Co. 
 
 (35 N. H. 569), 392,397. 
 Johnson v. Fletcher (54 Miss. 628 ; 
 
 28 Am. Rep. 388), 520. 
 Johnson v. Hall (6 Cal. 359), 261. 
 Johnson v.Hanahan (1 Strobh. 313), 
 
 30. 
 Johnson v. Irasburg (47 Vt. 28; 19 
 
 Am. Rep. Ill), 187. 
 
TABLE OF CASES CITED. 
 
 XXXIX 
 
 Johnson v. Lonsley (12 C. B. 468), 
 
 261. 
 Johnson v. People (31 111. 469), 187. 
 Johnson v. Philadelphia (60 Pa. St. 
 
 445), 272, 274, 281. 
 Johnson v. Eussell (37 Cal. 670), 
 
 261. 
 Johnson v. Simonton (43 Cal. 542), 
 
 296, 297. 
 Johnston v. Commonwealth (10 
 
 Harris, 102), 183. 
 Jordan v. Woodward (40 Me. 317), 
 
 385. 
 Jones V. Andrews (10 Allen, 18), 
 
 188. 
 Jones V. Fletcher (41 Me. 254), 465. 
 Jones V. Galena, etc., E. E. Co. (16 
 
 Iowa, 6), 597. 
 Jones ». Harris (1 Strobh. 160), 174. 
 Jones V. Lees (1 H. & N. 189), 246. 
 Jones i>. Marable (6 Humph. 116), 
 
 342. 
 Jones t>. People (14 111. 196), 304. 
 Jones V. Perry (10 Terg. 69), 358. 
 Jones V. State (1 Ga. 610), 79. 
 Jones ». Voorhees (10 Ohio, 146), 
 
 267. 
 Judges, Opinions of (48 Me. 691), 
 
 470. 
 Jadson v. Bridgeport (25 Conn. 
 
 426), 877. 
 Juillard v. Greenman (110 U. S. 
 
 421), 213, 216, 607. 
 
 E. 
 
 Kallock V. Superior Court (56 Oal. 
 
 229), 92. 
 Kane v. Baltimore (15 Md. 240), 
 
 380. 
 Kansas Eac. By. Co. v Mower (16 
 
 Kan. 573), 597. 
 Karney v. Paisley (13 Iowa, 89), 519. 
 Kean v. Stetson (5 Pick. 492), 617. 
 Kearney v. Taylor (15 How. 494), 
 
 362. 
 Keenan v. State (8 Wis. 132), 84. 
 
 Keene's Appeal (64 Pa. St. 274), 
 
 361. 
 Keller i). Corpus Christi (50 Tex. 
 
 614; 32 Am. Eep. 513), 399. 
 Kellinger v. 42nd St., etc., E. E. Co. 
 
 (50 N. Y. 206), 403, 418. 
 Kellum V. Jansorn (17 Pa. St. 467), 
 
 30. 
 Kellum V. State (66 Ind. 688), 683. 
 Kelly 0. Scott (5 Gratt. 479), 531. 
 Kendall ». State (65 Ala. 492) , 97. 
 Kendricks ». State (10 Humph. 
 
 497), 94. 
 Kennedy v. Insurance Company (11 
 
 Mo. 204), 347. 
 Kennett's Petition (24 N. H. 135), 
 
 400. 
 Kerwhacker v. Cleveland, etc., E. 
 
 E. Co. (3 Ohio St. 172), 407. 
 Kester v. Stark (19 111, 328), 631. 
 Keyser v. School District (35 N. H. 
 
 480), 366. 
 Keyser v. Stansifer 6 Ohio 363), 
 
 165. 
 Kidder o. Parkhurst (3 Allen, 393), 
 
 41, 42. 
 Kimball u. Bates (50 Me. 308), 65. 
 Kincaid's Appeal (66 Pa. St. 423; 
 
 5 Am. Eep. 377), 437, 583. 
 KingB. Boot (4 Wend. 113; 21 Am. 
 
 Dec. 102), 52. 
 King «. Ward (77 111. 603), 61, 66. 
 Kingsbury v. Kirwan (71 N. Y. 612), 
 
 266, 268. 
 Kinney v. Cent. E. E. Co. (32 N. J. 
 
 407; 34N. J. 513), 258. 
 Kinney's Case (30 Gratt. 868) 537. 
 Kipp V. Paterson (26 N. J. 298), 
 
 281. 
 Kirby v. Chitwood (4 B. Hon. 96), 
 
 358, 359. 
 Kirby v. Shaw (90 Pa. St. 258) 472. 
 Kirkmani). Handy (11 Humph. 406), 
 
 34. 
 Kirkpatrick v. Bonsall (72 Pa. St. 
 
 165), 267. 
 
xl 
 
 TABLE OF CASES CITED. 
 
 Eirkpatrlck v. Eagle Lodge (26 
 
 Kans. 381) 60. 
 Kirkpatrick v. Kirkpatrick (39 Pa. 
 
 St. 288), 61. 
 Kirkland v. Hotchkiss (100 O. S. 
 
 491), 472. 
 Klelzer v. Symmes (40 Ind. 462), 
 
 50. 
 Klinck V. Colby (46 N. Y. 274 (7 
 
 Am. Rep. 360), 37, 41. 
 Knight V. Knight (90 111. 208), 29. 
 Kniper v. Louisville (7 Bush, 699), 
 
 272. 
 Knowles v. Peck (42 Conn. 386; 19 
 
 Am. Eep. 542), 37. 
 Knowles 1). People (15 Mich. 408), 
 
 94. 
 Knoxville v. Bird (12 Lea, 121 : 47 
 
 Am. Eep. 326), 439. 
 Kohlheimer v. State (89 Miss. 548), 
 
 96. 
 Kohn V. Koehler (21 Hun, 466) 291. 
 Kramer v. Cleveland, etc., R. E Co. 
 
 (5 Ohio St. 140), 372. 
 Krevet v. Meyer (24 Mo. 107), 30. 
 Kroop V. Eorman (31 Mich. 144), 
 
 377. 
 Kuttes V. Smith (2 Wall. 491), 366. 
 
 Laceyc. Davis (4 Mich. 140), 519. 
 Lackland o. North Mo. E. E. Co. 
 
 (31 Mo. 180), 402. 
 La Croix v. County Comrs. (50 
 
 Conn. 321; 47 Am. Eep. 648), 583. 
 La Croix v. Fairfield Co. Comrs. 
 
 (49 Conn. 591), 288. 
 Ladd V. Southern C. P. & M. Co. 
 
 (58 Tex. 172), 594. 
 Lafayette v. Bush (19 Ind. 326), 
 
 401. 
 Lakevievy v. Rose Hill Cemetery (70 
 
 111. 192; 8. c. 22 Am. Eep. 71), 3, 
 
 13, 437, 438, 683. 
 Lakevievif v. Setz (44 111. 81) 429, 
 
 433. 
 
 Lake Shore, etc., E. E. Co. v. Chi- 
 cago, etc., E. E.Co. (97 HI. 506), 
 
 392. 
 Lamb v. Lane (4 Ohio St. 167), 420. 
 Lambe». St. Louis (15 Mo. 610), 
 
 33. 
 Lancaster Co. Bk. v. StanfEer (10 
 
 Pa. St. 398), 344, 345. 
 Lane v. Dorman (4 111. 238), 358. 
 Lang V. Weeks (2 Ohio (n. s.) 519), 
 
 246, 251. 
 Larkin 1). Noonan (19 Wis. 82), 49. 
 Lasure v. State (10 Ohio St. 43), 
 
 79. 
 Laughlin v. Clawson (27 Pa. St. 
 
 330), 63. 
 Law, Ex parte (36 Ga. 286), 203. 
 Lawrence, In re (1 Eedf. Sur. Rep. 
 
 310), 342. 
 Lawrence v. Lanning (4 Ind. 194), 
 
 61. 
 Lawson j>. Hicks (38 Ala, 279), 44. 
 Lawyer u. Cipperly (7 Paige, 281) , 
 
 1U5. 
 Lea V. White (4 Sneed, 111), 41. 
 Leachman v. Dougherty (81 Dl. 
 
 324) 83. 
 Learned v. Cutler (18 Pick. 9), 
 
 345. 
 Leavenworth v. Booth (15 Kan. 
 
 627), 279, 281. 
 Lebanon i>. Griffin (46 N. H. 558). 
 Lebanon v. Olcott (1 N. H. 339), 
 
 376. 
 Leelaire v. Davenport (13 Iowa, 
 
 210), 313, 324, 434. 
 Lee V. Pembroke Iron Co. (57 Me. 
 
 481; 2 Am. Eep. 59), 450. 
 Lees. State (26 Ark. 260; 7 Am. 
 
 Rep. 611), 96. 
 Legal Tender Cases (12 Wall. 467), 
 
 213, 607. 
 Lemay v. Williams (32 Ark. 166), 
 
 63. 
 Lemmon v. Chicago, etc., R. E. Co. 
 
 (32 Iowa, 151), 698. 
 
TABLE OF CASES CITED. 
 
 xli 
 
 liCSsley V. Phipps (49 Miss. 790), 
 
 521. 
 Lenz». Charlton (23 Wis. 478), 619. 
 Lester 0. State (33 Ga. 339), 97. 
 Lester v. Thurmond (51 Ga. 118), 
 
 44. 
 Levy V. Brannan (39 Cal. 485) 63. 
 Lewellen ii. Lockhardts (21 Gratt. 
 
 570), 273, 282. 
 Lewis V. Avery (8 Vt. 287), 83. 
 Lewis V. Bk. of Kentucky (12 Ohio 
 
 St. 132), 586. 
 Lewis .«. Chapman (16 N. Y. 369), 
 
 36, 37, 55. 
 Lewis V. Few (5 Johns. 1), 51, 54. 
 Lewis V. Levy (E. B. & E. 537), 56, 
 
 58. 
 Lewis V. Littlefleld (15 Me. 233), 
 
 261. 
 Lewis V. Lyman (22 Pick. 437) . 
 Lewis V. State (51 Ala. 1), 26. 
 Lewis B.Washington (5 Gratt. 265), 
 
 383. 
 Lexington, etc., E. E. Co. o. Apple- 
 gate (8 Dana, 289; 33 Am. Dec. 
 
 497), 411. 
 Ligat V. Commonwealth (19 Pa. St. 
 
 456), 420. 
 Lincoln t). Alexander (52 Cal. 482; 
 
 28 Am. Eep. 639), 496. 
 Lincoln, etc.. Bank v. Eichardson 
 
 (1 Greenl. 79), 685. 
 Lincoln®. Smith (27 Vt.328), 304. 
 Lindenmuller v. People (33 Barb. 
 
 568), 178, 183. 
 Linsley v. Hubbard (44 Conn. 109; 
 
 26 Am. Eep. 431), 366. 
 Litchfield V. Cudworth (15 Pick. 
 
 28), 344. 
 Little Miama, etc., E. E. Co. v. Day- 
 ton (23 Ohio St. 510), 392. 
 Little Eock, etc., E. E. Co. v. Payne 
 
 (33 Ark. 816; 34 Am. Eep. 55), 
 
 619, 598. 
 Liverpool Ins. Co. v. Mass. (1 Wall. 
 
 606), 592. 
 
 Livingston v. Mayor, etc. (8 Wend. 
 
 85; 22 Am. Dec. 622), 446. 
 Livingstone. Tanner (14 N. H. 64), 
 
 30. 
 Livingston's Leasee v. Moore (7 
 
 Pet. 469), 15. 
 Lock V. Dane (9 Mass. 360), 76. 
 Locke 0. United States (7 Cranch, 
 
 339), 463. 
 Logan ». Matthews (6 Pa. St. 417), 
 
 187. 
 Logan o. Musick (81 -ll\. 415), 265. 
 Logan V. Walton (12 Ind. ,639), 
 
 346, 347. 
 Logan B. Payne (43 Iowa, 523 ; 22 
 
 Am. Eep. 261), 317. 
 Lonast). State (3 Heisk. 287), 637. 
 Longc. Fuller (68 Pa. St. 170), 380, 
 
 421. 
 Long V. Marvin (15 Mich. 60), 
 
 344. 
 Long V. State (12 Ga. 233), 84. 
 Longmer v. Smith (1 B. & C. 1), 
 
 265. 
 Longville v. State (4 Tex. App. 
 
 312), 272. 
 Longworth v. Worthington (6 Ohio, 
 
 9), 367. 
 Look V. Dean (108 Mass. 116; 11 
 
 Am. Eep. 323), 108, 109. 
 Loomis «. Terry (17 Wend. 496), 
 
 28. 
 Loomis V. Spencer (1 Ohio St. 163), 
 
 82. 
 Lord II. Litchfield (36 Conn. 116; 4 
 
 Am. Eep. 41), 679. 
 Lott». Hubbard (44 Ala. 593), 82. 
 Lottu. Sweet (33 Mich. 308), 108. 
 Loughbridge v. Harris (42 Ga. 500) , 
 
 378, 385. 
 Louisville & N. E. E. Co. w. Burke 
 
 (6 Caldw. 46), 697. 
 Louisville, etc., E. E. Co. v. Bal- 
 lard (2 Met. (Ky.) 165), 580. 
 Love V. Shartzer (31 Cal. 487), 367. 
 Love B. ShefEelin (7 Fla. 40), 206. 
 
xlii 
 
 TABLE OF CASES CITED. 
 
 Low V. Galena, etc., K. E. Co. (18 
 
 111.324), 396. 
 Loweree v. Newark (38 N. J. 151), 
 
 421. 
 Lowery B. Rainwater (70 Mo. 152; 
 
 35 Am. Eep. 420), 463, 498. 
 Lucas V. Case (9 Bush, 662), 60, 
 
 165, 166. 
 Lucas V. Sawyer (17 Iowa, 617), 
 
 346. 
 Luminary, The (8 Wheat. 401), 
 
 463. 
 Lumsden v. Cross (10 Wis. 282), 
 
 519. 
 Lund V. New Bedford (121 Mass. 
 
 286), 377. 
 Lyman v. Boston, etc., E. E. Co. (4 
 
 Cush. 288), 699. 
 Lynch «. Brudie (63 Pa. St. 206), 
 
 267. 
 LyouB. Culbertson (83 HI. 33), 265, 
 
 267. 
 Lyon V. Jerome (26 Wend. 484), 
 
 376. 
 Lyons v. Jerome (15 Wend. 569), 
 
 392. 
 
 M. 
 
 Mabry v. Tarver (1 Humph. 94), 
 
 272. 
 Macomber v. Godfrey (108 Mass. 
 
 219; 11 Am. Eep. 349), 460. 
 Macy». Indianapolis (17 Ind. 267), 
 
 401. 
 Madison, etc., E. E. Co. v. White- 
 neck (8 Ind. 217), 598. 
 Magee v. Young (40 Miss. 164), 
 
 346. 
 Maguire v. Srpock (42 Ind. 1), 261. 
 Magulre, matter of (57 Cal. 604; 
 
 40 Am. Eep. 125), 199. 
 Mahala v. State (10 Yerg. 682), 97. 
 Mahon v. N. Y. Cent. E. E. Co. (24 
 
 N. Y. 658), 411. 
 Malone v. Murphy (2 Kan. 250), 
 
 61. 
 
 Manderson v. Lukens (23 Pa. St. 
 
 31), 339. 
 Manhattan Fertilizing Co. v. Van 
 
 Keuren (8 C. E. Green, 251), 428. 
 Mansfield v. Clark (23 Mich. 519), 
 
 375. 
 Marburg v. Cole (49 Md. 402 ; 33 
 
 Am. Eep. 266), 364. 
 March v. Portsmouth, etc., E. E. 
 
 Co. (19 N. H. 372), 394,397. 
 Marsh v. Ellsworth (50 N. Y. 309), 
 
 42, 43. 
 Marsh v. Eussell (2 Lans. 75), 
 
 249. 
 Marshall v. Gunter (6 Eich. 419) , 
 
 41, 44. 
 Marshall v. King (24 Miss. 90), 
 
 339, 342. 
 Marshalltown v. Blum (58 Iowa, 184 ; 
 
 43 Am. Eep. 116), 615. 
 Marten «. Van Shaik (4 Paige, 479), 
 
 64. 
 Martin v. Hughes (67 N. C. 293), 
 
 520. 
 Martin v. Hunter's Lessee (1 
 
 Wheat. 304), 605. 
 Marysville Turnpike Co. v. How, 
 
 (14 B. Mon. 429), 575. 
 Mason v. Halle (12 Wheat. 370), 
 
 518. 
 Mason v. Mason (4 N. H. 110), 54. 
 Massie v. Mann (17 Iowa, 131), 
 
 205. 
 Mather v. Hood (8 Johns. 447), 
 
 83. 
 Matthew v. Fiestel (3 E. D. Smith, 
 
 90), 507. 
 Matthews v. Beach (6 Sandf. 259), 
 
 58. 
 Mattocks V. Stearns (9 Vt. 326), 
 
 344. 
 Maul V. Stark (25 Tex. 166), 77. 
 Maull V. Vaughn (45 Ala. 134), 
 
 520. 
 Maurer v. People (43 N. Y. 1), 
 
 86. 
 
TABLE OF CASES CITED. 
 
 xliii 
 
 Maurice v. Maurice (43 N. T. 380), 
 
 339. 
 Maurice v. Worden (64 MA. 233; 
 
 39 Am. Rep. 384), 41. 
 Maxey v. Loyal (38 Ga. 531), 518. 
 Maxwell v. Jonesboro (11 Heisk. 
 
 257), 310. 
 Maxwell v. Palmerston (21 Wend. 
 
 407), 507. 
 May V. Fletcher (40 Ind. 575), 
 
 346. 
 Mayor v. Phelps (27 Ala. 55), 272. 
 Mayor, etc., v. Beasley (1 Humph. 
 
 232), 283. 
 Mayor of New York v. 2d Ave. E. 
 
 B. Co. (32 N. Y. 261), 272, 281. 
 Mayor of City of Hudson v. Thorne 
 
 (2 Paige, 161), 324. 
 Mayor, etc., u. YulUe (3 Ala. 137), 
 
 272. 
 Mayrant u. Eichardson (1 Nott & 
 
 McCord, 348 ; 9 Am. Dec. 707), 51. 
 Mays V. Cincinnati (1 Ohio St. 
 
 268), 272,281. 
 McAlister v. Clark (33 Conn. 91), 
 
 453. 
 McAndrew v. Electrical Tel. Co. 
 
 (17 C. B. 3), 259. 
 McArthur v. Franklin (16 Ohio St. 
 
 200), 346. 
 McBee ». Fulton (47 Md. 403; 28 
 
 Am. Rep. 465), 66. 
 McDonald v. Redwing (13 Minn. 
 
 38), 399. 
 McDonough v. Webster (68 Me. 
 
 530), 261. 
 McCarty ». Blevins (13 Tenn. 195), 
 
 265. 
 McCarty v. Fremont (26 Cal. 196), 
 
 28. 
 McClain, Ex parte (61 Cal. 435; 
 
 44 Am. Eep. 554), 308. 
 McClary v. Lowell (44 Vt. 116; 8 
 
 Am. Rep. 366), 187. 
 McComb V. Akron (15 Ohio, 474; s. 
 
 e. 18 Ohio, 229), 401. 
 
 McCoy V. Brie, etc., E. R. Co. (42 
 
 Md. 498), 258. 
 McCoy V. Grandy (3 Ohio St. 463), 
 
 369. 
 McCracken v. Hayward (2 How. 
 
 608), 515. 
 McCuUoch 1). Maryland (4 Wheat. 
 
 428), 470, 472. 
 McCurdy v. Canning (64 Pa. St. 
 
 39), 364. 
 McFadden v. Commonwealth (23 
 
 Pa. St. 12), 96. 
 McFarland v. Butler (8 Minn. 116), 
 
 516. 
 McGatrick ». Wason (4 Ohio Sr. 
 
 566), 177. 
 MoGaughey v. Henry (16 B. Mon. 
 
 383), 342. 
 McGinnis v. Watson (41 Pa. St. 9), 
 
 166. 
 McGoon I). Scales (9 Wall. 31), 
 
 586. 
 McGregor v. Erie Railway (35 N. 
 
 J. L.li5), 593. 
 McKay v. Campbell (2 Sawyer, 
 
 118), 143. 
 McKee v. People (32 N. Y. 239), 97. 
 McKeon v. Lee (61 N. Y. 300; 10 
 
 Am. Eep. 659), 34. 
 McKewn v. Hunter (30 N. Y. 624), 
 
 62. 
 McKinney v. Salem (77 Ind. 213), 
 
 583. 
 McLaughlin v. Cowley (127 Mass. 
 
 316), 41, 43. 
 McLaughlin v. State (45 Ind. 338), 
 
 79. 
 McLaughlin, Ex parte (41 Cal. 
 
 211; 10 Am. Eep. 272), 97. 
 McLean «. Cook (23 Wis. 364), 82. 
 McMillan ». Birch (1 Binn. 178 ; 2 
 
 Am. Dec. 426), 43, 50. 
 McMillan v. Michigan, etc., R. R. 
 
 Co. (16 Mich. 79), 266. 
 McMillan v. McNiell (4 Wheat. 
 
 209), 621. 
 
xliv 
 
 TABLE OF CASES CITED. 
 
 McPherson v. State (29 Ark. 225), 
 
 26. 
 McPherson v. State (22 Ga. 478), 
 
 28. 
 Mechanics' Bank v. De Bolt (1 
 
 Ohio St. 691), 675. 
 Medway v. Natick (I Mass. 88), 
 
 537. 
 Medway v. Needham (16 Mass. 
 
 167) 637. 
 Meeker v. Wright (76 N. Y. 262), 
 
 364. 
 Meliget's Appeal (17 Pa. St. 449), 
 
 346. 
 Memphis v. Water Co. (5 Heisk. 
 
 492), 317. 
 Memphis & C. R. E. Co. v. Payne 
 
 (37 Miss. 700), 422, 428. 
 Merchants' Dispatch Co. v. Smith 
 
 (76 111. 542), 266. 
 Merriam v. Mitchell (13 Me. 439), 
 
 62. 
 Merrill v. Sherburne (1 N. H. 199; 
 
 8 Am. Dec. 52), 345. 
 Metoalf V. Putnam (9 Allen, 97), 
 
 361. 
 Metropolitan Board v. Barrie (34 
 
 N. Y. 657), 285, 304. 
 Metropolitan Board v. Heister (37 
 
 N. Y. 661), 312. 
 Metropolitan Board of Excise v. 
 
 Barrie (34 N, Y. 667), 683. 
 Metropolitan Board of Health v. 
 
 Heister (37 N.Y. 661), 434. 
 Metropolitan R. R. Co. v. Quincy 
 
 R. R. Co. (12 Allen, 262), 418. 
 Michaels v. N. J. Cent. R. R. Co. 
 
 (30 N. Y. 571), 267. 
 Mifflin V. Railroad Co. (16 Pa. St. 
 
 182), 411. 
 Millbum V. Cedar Rapids, etc., R. 
 
 R. Co. (12 Iowa, 246), 396, 402, 
 
 403, 409. 
 Miller v. Miller (9 Pa. St. 74), 451. 
 Miller v. Miller (10 Met. 393), 342. 
 Miller v. Miller (16 Mass. 59), 340. 
 
 Miller v. Troosh (14 Minn. 365), 
 
 386. 
 Miller v. Clark (4 Bosw. 632), 205. 
 Milliken v. City Council (54 Tex. 
 
 388; 38 Am. Rep. 629), 351. 
 Mills V. Brooklyn (32 N. Y. 489), 33. 
 Mills V. Commonwealth (13 Pa. St. 
 
 631), 31. 
 Mills ». Lockwood (42111.111), 361. 
 Mills «. Williams (11 Ired. 658), 574. 
 Mills V. Williams (16 S. C. 694), 187. 
 Mills, matter of (1 Mich. 392), 203. 
 Milnor v. N. Y., etc., R. R. Co. (53 
 
 N. Y. 164), 693. 
 Milwaukee?;. Gross (21 Wis. 241), 
 
 312, 434. 
 Milwaukee Industrial School v. Su- 
 pervisor (40 Wis. 328; 28 Am. 
 
 Rep. 702), 559. 
 Mississippi Soc. of Arts v. Mus- 
 
 grove (44 Miss. 820) 683. 
 Missouri Val. R. R. Co. v. Caldwell 
 
 (8 Kan. 244), 257. 
 Mitchell ». Harmony (13 How. 115), 
 
 496. 
 Mitchell V. Lemon (34 Md. 176), 85. 
 Mitchell V. Williams (27 Ind. 62), 
 
 512. 
 Mltchinson v. Cross (58 111. 366), 
 
 61. 
 Mithoff V. CarroUton (12 La. Ann. 
 
 185), 380. 
 Mobile V. Kimball (102 U. S. 691), 
 
 624. 
 Mobile ®. Yuille (3 Ala. (sr. 8.) 140), 
 
 208, 237. 
 Mobile & M. R. R. Co. v. Steiner 
 
 (61 Ala. 559), 590. 
 Mobile, etc., R. R. Co. v. Moseley 
 
 (62 Miss. 127), 575. 
 Mobile, etc., E. R. Co. v. State (51 
 
 Miss. 137), 599. 
 Monongahela Nav. Co. v. Coons (6 
 
 Watts & S. 101), 400. 
 Monroe •«. Smelley (25 Tex. 686), 
 
 261. 
 
TABLE OF OASES CITED. 
 
 xlv 
 
 Moore v. Allegheny City (18 Pa. St. 
 
 56), 82. 
 Moore u.Boyd (24 Me. 247), 29. 
 Moore v. City of N. Y. (8 N. Y. 110) , 
 
 343, 345. 
 Moore v. Frost (3 N. H. 127), 345. 
 Moore v. Illinois (14 Ohio, 13), 628. 
 Moore*. Kent (37 Iowa, 20), 347. 
 Moore v. Monroe (64 Iowa, 367 ; 52 
 
 Am. Eep.444), 162. 
 Moore D. Railway Co. (34 Wis. 173), 
 
 377. 
 Moore v. State (43 N. J. 203), 76, 
 
 517. 
 Moore v. State (48 Miss. 147; 12 
 
 Am. Rep. 367), 683. 
 Moore v. State (36 Miss. 137), 80. 
 Moreau v. Detachmendy (18 Mo. 
 
 522), 346. 
 Morehead v. State (9 Humph. 635), 
 
 91. 
 Morey w. Brown (42 N. H. 373), 511, 
 
 512. 
 Morgan v. King (18 Barb. 84; 35 
 
 N. Y. 454), 617. 
 Morgan v. King (35 N. Y. 454), 398. 
 Morgan v. Nolte (37 Ohio St. 23 ; 41 
 
 Am. Rep. 485), 126, 127. 
 Morrill v. State (38 Wis. 428; 20 
 
 Am. Rep. 12), 282. 
 Morris v. Wrenshall (34 Md. 494), 
 
 518. 
 Morris Run Coal Co. v. Barclay 
 
 Coal Co. (68 Pa. 43), 250. 
 Morrison B. Davis, (20 Pa. St. 171), 
 
 256. 
 Morse v. Goold (11 N. Y. 281), 517, 
 
 520. 
 Mortimer ». McCallan (6 M. & W. 
 
 58), 266. 
 Morton, matter of (10 Mich. 208), 
 
 466. 
 Moseleyi). State (33 Tex. 671), 97. 
 Moses V. Pittsburg, etc., R. R. Co. 
 
 (21 111. 516), 395, 409, 416. 
 Mott V. Dawson (46 Iowa, 633), 51. 
 
 Mott V. Palmer (1 Const. 571), 366. 
 Mount V. Commonwealth (2 Duv. 
 
 93), 96. 
 Mt. Carmel v. Wabash (60 111. 69), 
 
 277. 
 Mount Washington Road Co., peti- 
 tion of (35 N. H. 134), 376. 
 Mounts V. State (14 Ohio, 295), 96. 
 Mouse y. Switz (19 How. 275), 252. 
 Mower v. Watson (11 Vt. 586; 34 
 
 Am. Dec. 704), 44. 
 Mowry v. Whipple (8 R.I. 360), 61, 
 
 62. 
 MuhlerbrinckB. Commonwealth (42 
 
 N.J. L. 364; 36 Am. Rep. 518), 272. 
 Mummy t!. Johnston (3 A. K. Marsh. 
 
 220), 361. 
 Munger v._ Tonawando R. R. Co. 
 
 (4 N. Y. 349), 396. 
 Municipality 0. Dubois (lOLa. Ann. 
 
 56), 283. 
 Munn V. Illinois (94 U. S. 113), 229, 
 
 235, 236, 240, 342, 588, 590. 
 Munn V. State (1 Ga. 243), 603. 
 Murphy ». Chicago (29 111. 279), 401. 
 Murphy v. Larson (77 111. 172), 63. 
 Murray v. Commonwealth (79 Pa. 
 
 St. 311), 26. 
 Murray v. County Com'rs (12 Met. 
 
 455). 409. 
 Murray v. Menefee (20 Ark. 561), 
 
 400. 
 Murray v. Sharp (1 Bosw. 539), 397. 
 Murray v. The Charming Betsey (2 
 
 Cranch, 64), 139. 
 Mussey v. Scott (32 Vt. 82), 29. 
 
 Nashville, etc., R. R. Co. v. Hodges, 
 
 (7 Lea, 663), 473. 
 Nathan v. State (8 How. 73), 615, 
 
 616. 
 Neass v. Mercer (15 Barb. 318), 
 
 519. 
 Nelson v. Sheboygan Nav. Co. (4 
 
 Mich. 7; 38 Am. Dec. 222), 622. 
 
xlvi 
 
 TABLE OF CASES CITED. 
 
 Nesbit V. Trumbo (39 111. 110), 391. 
 Neth V. Crofut (30 Conn. 580), 82. 
 Nevitt V. Bk. of Port Gibson (6 
 
 Smedes & M. 513), 585, 586. 
 New Albany, etc., B. K. Co. v. Til- 
 ton (12Incl. 3), 598. 
 New Albany, etc., E. E. Co. v. 
 
 Maiden (12 Ind. 10), 598. 
 New Albany, etc., E. E. Co. v. 
 
 O'Dailey (13 Ind. 353), 395, 402, 
 
 410, 415. 
 New Brunswick, etc., Co. v. Tiers 
 
 (24 N. J. 697), 256. 
 New Castle, etc., E. E. Co. v. Peru, 
 
 etc.,E. E. Co. (3 Ind. 464), 392. 
 Newcome v. Smith (1 Chandl. 71), 
 
 385. 
 N. J. St. Nav. Co. V. Merchants' 
 
 Bk. (6 How. 344), 256. 
 Newman, Ex parte (9 Cal. 509), 176, 
 
 177, 179, 182, 183. 
 New Orleans v. Eclipse Towboat 
 
 Co. (33 La. Ann. 647; 39 Am. 
 
 Eep.) 279, 626. 
 New Orleans v, Fourchy (30 La. 
 
 Ann. pt. 1, 910), 473. 
 New Orleans v. GuUlotte (12 La. 
 
 Ann. 818), 324. 
 New Orleans v. Kaufiman (29 La. 
 
 Ann. 283; 29 Am. Eep. 328), 282. 
 New Orleans v. People's Bank (32 
 
 La. Ann. 82), 473. 
 New Orleans v. Stafford (27 La. 
 
 Ann. 417; 21 Am. Eep. 563), 812, 
 
 313, 434. 
 New Orleans, etc., E. E. Co. v. Gay 
 
 (32 La. Ann. 471), 395. 
 N. 0., etc., E. E. Co. v. Southern, 
 
 etc., Tel. Co. (53 Ala. 211), 392. 
 N. O. Ins. Co. i>. N. O., etc., E. E. 
 
 Co. (20 La. Ann. 302), 257. 
 N. Y., etc., E. E. Co. v. Kip (46 N. 
 
 Y. 546; 7 Am. Eep. 383), 379, 
 
 396. 
 N. Y. Cent. E. E. Co. v. Met. Gas 
 
 Co. (63 N. Y. 326), 376. 
 
 NiccoUs D. IngersoU (7 Johns. 146), 
 
 81. 
 Nichols V. Bridgeport (23 Conn. 
 
 189), 377. 
 Nicholson v. N. Y., etc., E. E. Co. 
 
 (22 Conn. 74), 416. 
 Nichols V. Somerset, etc., K. E. 
 
 Co. (43Me. 356),421. 
 Nichols, matter of (8 E. I. 50), 518. 
 Noel V. Ewing (9 Ind. 37), 346, 549. 
 Nolan u. State (55 Ga. 621), 96. 
 Noland v. Busby (28 Ind. 154), 82. 
 Nolin V. Franklin (4 Yerg. 163), 
 
 606. 
 Noonan v. Orton (32 Wis. 106), 36. 
 Norfleet v. Cromwell (70N.C. 634; 
 
 16 Am. Eep. 787), 445. 
 Norris v. Vt. Cent. E. E. Co. (28 
 
 Vt. 99), 397. 
 Norris u. Beyea (13 N. Y.273), 344. 
 North V. Phillips (89 Pa. St. 250), 
 
 265, 267. 
 N. C, etc., R. R. Co. v. California 
 
 Cent. R, E. Co. (83 N. C. 489), 
 
 392. 
 N. E. & S. W. E. R. Co., Ex parte 
 
 (37 Ala 679), 680. 
 North Mo. R. R. Co. v. Gott (25 
 
 Mo. 540), 376. 
 North Mo. E. R. Co. v. Lackland 
 
 (25 Mo. 616), 376. 
 Norwich Gaslight Co. v. Norwich 
 
 City Gas Co. (26 Conn. 19), 317. 
 Noyes v. Jenkins (65 Ga. 686), 265. 
 Noyesv. Spalding (27 Vt. 420), 266, 
 
 267. 
 Nugent V. State (4 Stew. & Port. 
 
 72), 97. 
 
 0. 
 
 Oaks, matter of (8 Law Reporter, 
 
 122), 108. 
 O'Bannon v. Louisville, etc., E. E. 
 
 Co. (8 Bush, 348), 598. 
 O'Brien v. Commonwealth (6 Bush, 
 
 503), 94. 
 
TABLE OF CASES CITED. 
 
 xlvii 
 
 O'Brien v. Kastener (27 Mich. 292), 
 
 366. 
 O'Connor v. Pittsburg (18 Pa. St. 
 
 187), 401, 406. 
 O'Donoghue v. McGovern (23 
 
 Wend. 26), 50, 56. 
 O'FerrallD. Simplot (4 Iowa, 381), 
 
 346. 
 Ogden V. Saunders (12 Wheat. 213), 
 
 76, 515, 517, 619. 
 Ogden V. Stock (34 111. 522), 366. 
 O'Hara v. Lexington, etc., R. E. Co. 
 
 (I'Dana, 232), 375. 
 O'Hara v. Stack (90 Pa. St. 477), 
 
 165. 
 Ohio & M. B. E. Co. v. Lackey (78 
 
 111. 55; 20 Am. Rep. 259), 599. 
 Ohio & Miss. E. E. Co. v. McClelland 
 
 (25 111. 140), 597. 
 Ohio, etc., E. E. Co. v. Selby (47 
 
 Ind. 471), 258. 
 O'Kelly V. Williams (74 N. C. 281), 
 
 346. 
 Oliver v. Memphis, etc., E. E. Co. 
 
 (30 Ark. 128), 515. 
 Olmstead v. Camp (33 Conn. 632), 
 
 376, 378, 385. 
 Olmstead v. Partridge (16 Gray, 
 
 383), 63. 
 Orange Co. Bank v. Brown (9 Wend. 
 
 85), 256. 
 O'Eeilly v. Kankakee Val. Draining 
 
 Co. (32 Ind. 169), 445. 
 Oregon St. Nav. Co. v. Winsor (20 
 
 Wall. 64), 251. 
 Ormond v. Martin (37 Ala. 598), 
 
 367. 
 Ormsby v. Douglass (37 N. Y. 477), 
 
 37, 55. 
 Orr V. Box (22 Minn. 485), 82. 
 Orr V. Quimby (54 N. H. 590), 
 
 421. 
 Osborn v. Hart (24 Wis. 89 ; 1 Am. 
 
 Eep. 161), 381. 
 Osborn v. Nicholson (13 Ark. 654), 
 
 516, 516. 
 
 Osborne v. Mobile (44 Ala. 493), 
 
 592. 
 Osgood V. Howard (6 Greenl. 462), 
 
 366. 
 Oswego V. Oswego Canal Co. (6 N. 
 
 Y. 267), 404. 
 Ould V. Eichmond (23 Gratt. 464 ; 
 
 14 Am. Eep. 139), 282. 
 Our House v. State (4 Greene, Iowa, 
 
 172), 304. 
 Owners of Ground a. Mayor, etc., 
 
 of Albany (16 Wend. 374), 380. 
 Oystead v. Shed (13 Mass. 520), 465. 
 
 Pacific Ins. Co. v. Soule (7 Wall. 
 
 433), 469. 
 Pa. R. E. Co. V. Butler (57 Pa. St. 
 
 335), 258. 
 Packet Company v. Keokuk (95 U. 
 
 S. 80), 625. 
 Pacquette v. Pickness (19 Wis. 
 
 219), 367. 
 Page V. Tazackerly (36 Barb. 392), 
 
 237. 
 Paine v. Woods (108 Mass. 170), 
 
 462. 
 Palairet's Appeal (67 Pa. St. 479), 
 
 369. 
 Palmer v. State (39 Ohio St ), 
 
 297. 
 Palmore v. State (29 Ark. 248), 28. 
 Pangburn v. Bull (1 Wend. 345), 
 
 62. 
 Pardy v. N. Y. &. N. H. B. E. Co. 
 
 (61 N. Y. 353), 592. 
 Paris V. Mason (37 Texas, 447), 
 
 377. 
 Parker v. Bidwell (3 Conn. 84), 81. 
 Parker v. Metropolitan B. E. Co. 
 
 (109 Mass. 507), 590, 621. 
 Parker v. McQueen (18 B. Mon. 16), 
 
 64. 
 Parker v. Milldam Co. (20 Me. 353 ; 
 
 37 Am. Dec. 66), 400. 
 Parker i;. Savage (6 Lea, 406), 421. 
 
xlviii 
 
 TABLE OF CA8E8 CITED. 
 
 Parver v. Com. (5 Wall. 475), 15. 
 Pasley v. Freeman (3 J. E. 61), 252. 
 Passmore v. W. U. Tel. Co. (78 Pa. 
 
 St. 238,), 259. 
 Patten v. People (18 Mich. 314), 28. 
 Patterson «. Kentucky (97 U. S. 
 
 601), 207, 295, 613. 
 Pattersons. People (46 Barb. 625), 
 
 26. 
 Pattison v. Jones (8 B. & C. 578), 
 
 36. 
 Patton V. Patton (39 Ohio St. 590), 
 
 493. 
 Paul V. Detroit (32 Mich. 108), 394. 
 Payne u. Payne (18 Cal. 291), 369. 
 Payson v. Caswell (22 Me. 212), 61. 
 Pearce v. Savage (45 Me. 101), 339. 
 Peck V. Chicago, etc., K. R. Co. 
 
 (94 U. S. 164), 589. 
 Peck V. Gurney (L. R. 6 H. L. Cas. 
 
 377), 251. 
 Peddicord v. Baltimore, etc., R. R. 
 
 Co. (34 Md. 463), 411. , 
 Peik .». Chicago, etc., R. R. Co. 
 
 (94U. 8.164), 234,593. 
 Pekinu Winkel (77 111. 56), 402. 
 Penniman's Case (103 U. S. 714), 
 
 518. 
 Pennsylvania, etc., R. R. Co. v. N. 
 
 Y., etc., R. R. Co. (23 N. J. Bq. 
 
 157), 398. 
 Penn. R. R. Co. „. Riblet (66 Pa. 
 
 St. 164; 5 Am. Rep. 360), 597, 
 
 599. 
 Penrose v. Erie Canal Co. (56 Pa. 
 
 St. 46), 516,518. 
 Pensacola, etc., R. R. Co. v. W. U. 
 
 Tel. Co. (96 U. S. 1), 326. 
 People ti. Barrett (2 Calnes, 304), 
 
 9k. 
 People V. Boston, etc., R. R. Co. 
 
 (70 N. Y. 569), 597. 
 People V. Brighton (20 Mich. 57), 
 
 377. 
 People V. Canal Appraisers (13 
 
 Wend. 355), 398. 
 
 People 9. Cipperly (Ct. App. N. Y. 
 
 Feb. 5, 1886), 292. 
 People V. Colman (3 Cal. 46), 473. 
 People V. Commissioners (59 N. Y. 
 
 92), 581. 
 People V. Cook (10 Mich. 164), 96. 
 People S.Fisher (14 Wend. 9), 248, 
 
 250. 
 People V. Forbes (4 Park. 611), 122. 
 People V, German Church (53 N. Y. 
 
 103), 166. 
 People V. Goodwin (18 Johns. 187), 
 
 97. 
 Peoples. Gray (4 Park. 616), 122. 
 People V. Green (3 Mich. 496), 421. 
 People V. Hawley (3 Gibbs, 330), 
 
 804. 
 People V. Hennesy, 15 Wend. 147), 
 
 93. 
 People V. Hubbard (24 Wend. 369), 
 
 465. 
 Peoples. Ingersoll (58 N. Y. 1), 515. 
 People V. Jackson (3 Hill, 92), 31. 
 People s. Jackson, etc.. Plank Road 
 
 Co. (9 Mich. 282), 13, 68. 
 People s. Jackson, etc., Plank Road 
 
 Co. (9 Mich. 285), 583, 586. 
 People V. Kerr (37 Barb. 357 ; 27 
 
 N. Y. 188), 395, 400, 403, 409. 
 People s. Kniskern (54 N. Y. 52), 
 
 420. 
 People V. Manchester (9 Wend. 
 
 351), 574. 
 People V. Marx (99 N. Y. 377), 196, 
 
 296. 
 People s. Marx (99 N. Y. 307 ; 52 
 
 Am. Rep. 314), 196, 296. 
 People V. Mayor of N. Y. (4 N. Y. 
 
 419), 446, 470. 
 People V. McGowan (17 Wend. 386), 
 
 9C. 
 People V. McMahon (15 N. Y. 385), 
 
 91. 
 People s. Mulholland (82 N. Y. 
 
 324; 37 Am. Rep. 568), 273. 
 People V. Murphy (45 Cal. 137) ; 94. 
 
TABLE OF CASES CITED. 
 
 xlix 
 
 People V. Nearing (27 N. Y. S06), 
 
 380. 
 People V. Olmstead (30 Mich. 431), 
 
 79. 
 People D.Phillips, (1 Park. 95), 122. 
 People V. Phillips (42 N. Y. 200), 91. 
 People ». Plant Boad Co, (9 Mich. 
 
 286), 133. 
 People V. Buggies (8 Johns. 289; 
 
 6 Am. Dec. 835), 168, 169, 171. 
 People V. Smith (21 N. Y. 695), 373, 
 
 375, 376. 
 Peoples. Smith (1 Cal. 9), 80. 
 People 1). Smith (20 Johns. 63), 82. 
 People V. Sullivan (7N. Y. 396), 26. 
 People V. Thurber (13 111. 667), 
 
 272, 281, 283. 
 People V. Thurber, (13111.564), 692. 
 People V. Township Board of Salem 
 
 (20 Mich. 452), 888. 
 People*. Toynbec (20 Barb. 218), 5. 
 People V. Turner (66 111. 280; 8 
 
 Am. Bep. 645), 11, 185, 566. 
 People V. Tyler (7 Mich. 161), 96. 
 People V. Tyler (36 Cal. 522), 94. 
 People V. Wabash, etc., E. E. Co. 
 
 (104 III. 476), 617. 
 People V. Webb (28 Cal. 467), 96. 
 People V. Weisenbach (60 N. Y. 
 
 386), 656. 
 Peoria, etc., E. E. Co. u. Duggan 
 
 (109 111. 537; 50 Am. Bep. 619), 
 
 598. 
 Pequest Case (41 N. J. L. 176), 446. 
 Percy, Ex parte (36 N. Y. 661), 203. 
 Perdue v. Ellis (18 Ga. 586), 304. 
 Perkins v. Eaton (3 N. H. 152), 261. 
 Perkins i;. Mitchell (31 Barb. 461), 
 
 40. 
 Perkins u. N. Y. Cent. B. E. Co. 
 
 (24 N. Y. 197), 258. 
 Perry?). Phipps (10 Ired. L. 259), 
 
 508. 
 Perry v. Wilson (7 Mass. 395), 375. 
 Perry's Case (3 Gratt. 632), 76, 176. 
 Petillon V. Hippie (90 111. 420), 26li 
 
 Pettigrew v. Evansville (26 Wis. 
 
 223), 394, 397. 
 Phelps u. Eacey (60 N. Y. 10; 19 
 
 Am. Rep. 140), 500. 
 Phila. Ass'u, etc., u. Wood (39 Pa. 
 
 St. 73), 470. 
 Phila. & B. R. E. Co. v. Lehman 
 
 (66 Md. 209), 187. 
 Philadelphia, etc., B. E. Co. u. Derby 
 
 (14 How. 468), 268. 
 Phila., etc., B. E. Co. v. Quigley 
 
 (21 How 202), 50. 
 Phila. & Trenton E. B. Co., cases 
 
 of (6 Whart. 26 ; 36 Am. Dec. 202), 
 
 411. 
 Phila. W. B. E. E. Co. v. Bowers 
 
 (4 Houst. 606), 594, 597. 
 Phillips a. Bouham (16 La. Ann. 
 
 387), 63. 
 Phillips V. Disney (16 Ohio, 639), 
 
 346. 
 Phillips V. Ives (1 Eawle, 36), 261. 
 Phillips V. Ocmulgee Mills Co. (66 
 
 Ga. 633), 266. 
 Phillips u. Trull (11 Johns. 477), 84. 
 Phillips B. Wickham (1 Paige, 690), 
 
 546. 
 Pickering o. Cease (79 111. 828), 
 
 265, 267. 
 Pierce v. Hubbard (10 Johns. 406), 
 
 82. 
 Pierce o. Kimball (9 Me. 54; 23 
 
 Am. Dec. 537), 208. 
 Pierces). People (106 111. 11; 46 Am. 
 
 Bep. 683), 592, 693. 
 Pingry v. Washburn (1 Aiken, 264), 
 
 636. 
 Piqua Bank v. Enoop (16 How. 
 
 869), 674. 
 Pistauque Bridge Co. v. N. H. 
 
 Bridge (7 N. H. 35), 892. 
 Pitford c. Armstrong (Wright, 
 
 Ohio, 94), 28. 
 Pitt V. Cox (48 Pa. St. 486), 396. 
 Pittock D. O'NeiU (63 Pa. St. 253; 
 
 3 Am. Rep. 544), 67. 
 d 
 
1 
 
 TABLE OF CASES CITED. 
 
 Pittsburg V. Scott (1 Pa. St. 
 
 809), 381. 
 Pittsburg, etc., R. R. Co. „. S. W. 
 
 Penn. R. R. Co. (77 Pa. St. 173), 
 
 599. 
 Pittsburg, C. & St. L. R. R. Co. 
 
 V. Brown (67 Ind. 45; 33 Am. 
 
 Rep. 73), 597. 
 Pittsburg, etc., R. R. Co. v. Crown 
 
 (57 Ind. 45; 33 Am. Rep. 73), 
 
 424. 
 Pixley V. Boynton (79 111. 351), 265, 
 
 267. 
 Planters' Bk. v. Sharp (6 How. 301), 
 
 574, 586. 
 Platteville v. Bell (43 Wis. 488), 
 
 310. 
 Pleuler v. State (11 Neb. 547), 273, 
 
 583. 
 Plumb V. Sawyer (21 Conn. 351), 
 
 844. 
 Pocopson Road (16 Pa. St. 15), 
 
 381. 
 Polenskie v. People (73 N. T. 65), 
 
 292. 
 Poler V. N. Y. Cent. R. R. Co. (16 N. 
 
 y. 476), 598. 
 Pollard's Lessee v. Hagan (3 How. 
 
 212), 367. 
 Pomeroy v. Cliicago, etc., R. R. Co. 
 
 (16 Wis. 640), 411. 
 Poncher v. N. Y. Cent. R. R. Co. 
 
 (49 N. Y. 263), 258. 
 Pond V. People (8 Mich. 150), 28, 
 
 461. 
 Pontiac v. Carter (32 Mich. 164), 
 
 401. 
 ■ Pool «. Lewis (46 Ga. 162; 5 Am. 
 
 Rep. 526), 451. 
 Pope V. Macon (23 Ark. 644), 367. 
 Pope V. State (22 Ark. 371), 94. 
 Porter i;. Mariner (50 Mo. 364), 518. 
 Portland Bank v. Apthorp (12 Mass. 
 
 252), 472. 
 Potter V. Sealey (8 Cal. 217), 63. 
 Potter V. Titcomb (22 Me. 300). 
 
 Powell V. M. & B. Mfg. Co. (3 
 
 Mason, 369), 366. 
 Powell V. MUls (30 Miss. 231), 256. 
 Powers V. Bears (12 Wis. 213), 
 
 421. 
 Powers V. Dubois (17 Wend. 63), 
 
 52. 
 Power's Appeal (29 Mich. 504), 377, 
 
 420. 
 Pratt V. Brown (3 Wis. 603), 376, 
 
 379, 385. 
 Pratt V. Jones (25 Vt. 303), 519. 
 Pratt V. Tefft (14 Mich. 191), 346. 
 Presbyterian Society, etc., ■». Au- 
 burn, etc., R. R. Co. (3 Hill, 
 
 567), 411. 
 Prescott V. State (19 Ohio St. 
 
 184; 2 Am. Rep. 388), 136, 559. 
 Preston v. Drew (33 Me. 559), 
 
 304. 
 Price V. State (36 Miss. 533), 96. 
 Price V. State (19 Ohio, 423), 96. 
 Price ». Talley (10 Ala. 946). 
 Pritchard v. Citizens' Bank (8 La. 
 
 130; 23 Am. Dec. 132), 344. 
 Proctor V. Andover (42 N. H. 348), 
 
 381. 
 Proctor V. Jennings (6 Nev. 83 ; 3 
 
 Am. Rep. 240), 450. 
 Prohibition Amendment Cases (24 
 
 Kans. 700), 288, 304. 
 Proprietors, etc., v. Nashua R. R.- 
 
 Co. (10 Cash. 388), 394, 397. 
 Protzman v. Indianapolis, etc., R. 
 
 R. Co. (9 Ind. 467), 895, 402, 410, 
 
 415. 
 Prough V. Entriken (11 Pa. St. 81), 
 
 65. 
 Providence Bank v. Billings (4 Pet. 
 
 561), 470, 472. 
 Providence Savings Institute v. 
 
 Skating Rink (52 Mo. 452), 518. 
 Pugh V. Ottenheimer (6 Ore. 231; 
 
 25 Am. Rep. 513), 344. 
 Pumpelly v. Green Bay, etc., Co. 
 
 (13 Wall. 166), 397, 401. 
 
TABLE or CASES CITED. 
 
 li 
 
 Putnam o. Douglass Co. (6 Ore. 
 
 378; 25 Am. Eep. 527), 420. 
 Putnam v. Payne (13 Johns. 312), 
 
 509. 
 
 Quackenbush v. Danks (1 Denio, 
 128; 3 Denio, 594; 1 N. Y. 129), 
 620. 
 
 Qualn V.Russell (12 Hun, 376), 303. 
 
 R. 
 
 Radcliffe's Ex'rs v. Mayor of Brook- 
 lyn (4 N. Y. 195; s. c. 7N. Y. 195), 
 
 401, 406. 
 Rafferty v. People (69 111. Ill ; 72 
 
 111. 37; 18 Am. Eep. 601), 82. 
 Railroad v. Hecht (29 Ark. 661 ; 95 
 
 U.S. 170), 583. 
 Railroad v. Reeves (10 Wall. 176) > 
 
 256. 
 Railroad Co. ■». Combs (10 Bush, 
 
 382; 19 Am. Rep. 67), 411. 
 Railroad Co. v. Husan (95 U. S. 
 
 465), 624. 
 Railroad Co. v. Lockwood (17 Wall. 
 
 357), 257. 
 Railroad Co. v. Richmond (96 U. S. 
 
 521), 400. 
 Railroad Co. v. Shurmeir (7 Wall. 
 
 272), 395. 
 Railway Co. u. Philadelphia (101 U. 
 
 S. 528), 473. 
 Railway v. Renwick (102 U. S. 180), 
 
 398. 
 Raleigh, etc., R. R. Co. •». Davis (2 
 
 Dev. &Bat. 451), 376. 
 Rand v. Commonwealth (9 Gratt. 
 
 738), 79. 
 Ratch V. Planders (29 N. H. 304), 
 
 345. 
 Ratzky ». People (29 N. Y. 124), 77. 
 Raulston v. Jackson (1 Sneed, 128), 
 
 61. 
 Raymonds. Leavitt (46 Mich. 447), 
 
 249. 
 
 Reaper's Bank v. Willard (24 111. 
 
 433), 680. 
 Rearick v. Wilcox (81 111. 77), 52. 
 Rector v. Smith (11 Iowa, 302), 37, 
 
 41, 42. 
 Read v. Beall (42 Miss. 672), 288. 
 Reed v. Case (4 Conn. 166; 10 Am. 
 
 Dec. 110), 81. 
 Reddall v. Bryan (14 Md. 444), 380. 
 Reeder v. Purdy (41 111. 261), 29. 
 Reeves v. Treasurer (8 Ohio St. 333), 
 
 33, 380, 381. 
 Reid V. DeLorme (2 Brev. 76), 49, 
 
 50. 
 Reid V. Kirk (12 Rich. 54), 366. 
 Reiser v. Tell Association (39 Pa. 
 
 St. 137), 357. 
 Reitenbaugh v. Chester Val. R. R. 
 
 Co. (21 Pa. St. 100), 377. 
 Reithmuller ». People (44 Mich. 
 
 280), 289. 
 Remington v. Congdon (2 Pick. 
 
 310), 50. 
 Renck v. McGregor (32 N. J. 70) , 84. 
 Respublica v. Dennie (4 Yeates, 207 ; 
 
 2 Am. Dec. 402), 191. 
 Respublica v. Montgomery (1 
 
 Yeates, 419), 84. 
 Rex V. De Berenger (3M. & S. 67), 
 
 249. 
 Rexford v. Knight (11 N. Y. 308), 
 
 396, 421. 
 Rex V. Waddington (1 East, 43), 
 
 246. 
 Reynolds v. United States (98 U. S. 
 
 145), 172, 539. 
 Rice V. Parkman (16 Mass. 326), 
 
 358, 366. 
 Rice V. Wadsworth (27 N. H. 104), 
 
 82. 
 Rich V. Chicago (69 lU. 286), 420. 
 Rich V. Flanders (39 N. H. 304), 
 
 619. 
 Richards v. Nye (5 Ore. 382), 83. 
 Richardson v. Kelley (85 111. 491), 
 
 261. 
 
Hi 
 
 TABLE OF CASES CITED. 
 
 Richardson v. Vt. Cent. R. B. Co. 
 
 (25 Vt. 465), 400. 
 Eichmond T. & P. E. E. Co. v. City 
 
 of Richmond (26 Gratt. 83; 96 U. 
 
 S. 521), 597. 
 Eichmond Manfg;. Co. v. Atlantic 
 
 Delaine Co. (10 E. I. 106; 14 Am- 
 
 Eep. 658), 449. 
 Eichmond E. E. Co. v. Louisa R. R. 
 
 Co. (13 How. 71), 392. 
 Ridge Street, In re (29 Pa. St. 391), 
 
 401. 
 Ring V. Wheeler (7 Cow. 725), 44. 
 Ritchie ?;. Boynton (114 Mass. 431), 
 
 208. 
 Risen D. Farr (24 Ark. 161), 516. 
 River Rendering Co. s.Behr (77 Mo- 
 
 91;46 Am. Rep. 6), 504. 
 River Rendering Co. v. Behr (7 Mo. 
 
 App. 345), 316. 
 Roach V. People (77 111. 25), 26. 
 Bobbins v. Treadway (2 J. J. Marsh. 
 
 540; 19 Am. Dec. 152), 51. 
 Robbins v. State (8 Ohio St. 131), 
 
 31. 
 Roberts v. Chicago (26 III. 249), 33, 
 
 401. 
 Roberts v. Ogle (38 111.459), 507. 
 Roberts v. Whiting (16 Mass. 186), 
 
 344. 
 Robertson v. Bullions (11 N. Y. 
 
 243), 165. 
 Robertson v. State (12 Tex. App. 
 
 541), 288. 
 Robinson*. Hamilton (60 Iowa, 134; 
 
 46 Am. Eep. 63), 206. 
 Robinson v. Richardson (13 Gray, 
 
 456), 464. 
 Robinson •». Swope (12 Bush, 21), 
 
 381. 
 Robinson, Ex parte (12Nev.263; 28 
 
 Am. Eep. 798), 615. 
 Robinson, Ex parte (12 Nev. 263), 
 
 282, 283. 
 Rochester Water Com'rs, In re (66 
 
 N. Y. 413), 392. 
 
 Eockford, etc., R. E. Co. v. Hill- 
 man (72 111. 235), 299. 
 Rockwell V. Hubbell's Adm'rs (2 
 
 Dongl. (Mich.) 197), 518. 
 Rockwell V. Nearing (35 N. Y. 302), 
 
 507. 
 Rodemacher v. Milwaukee, etc., R. 
 
 R. Co. (41 Iowa, 297; 20 Am Eep- 
 
 592), 599. 
 Eogers v. Woodbury (15 Pick. 156), 
 
 366. 
 Eohen v. Sawen (6 Cush. 281), 84. 
 Rome V. Addison (34 N. H. 306), 
 
 397. 
 Eoser, Ex parte (60 Cal. 177), 183. 
 Boss' Case (2 Pick. 169), 6. 
 Ross V. Innis (26 111.269), 63. 
 Ross V. Irving (14 III. 171), 367. 
 Eoth«.Eppy (80 111. 283), 303. 
 Both V. House of Eefuge (31 Md. 
 
 329), 559. 
 Rover v. Webster (3 Clarke, 502), 
 
 63, 65. 
 Rowe V. Addison (39 N. H. 306), 
 
 394. 
 Royston v. Royston (21 Ga. 161), 
 
 346. 
 Ruchizky v. De Haven (97 Pa. St. 
 
 202), 267. 
 Rudolph V. Winters (7 Neb. 126), 
 
 267. 
 Ruggles V. Nantucket (11 Cush. 
 
 433), 399. 
 Ruggles V. People (91 HI. 256), 590. 
 RulofE V. People (45 N. Y. 213), 
 
 84. 
 Rumseyi;. Berry (65 Me. 570), 265, 
 
 267, 268. 
 Ruohs V. Backer (6 Heisk. 395; 19 
 
 Am. Rep. 598), 41,44. 
 Russell V. Anthony (21 Kan. 450) 
 
 30 Am. Rep. 436), 52. 
 Russell •». Mayor of N. Y. (2 Denio, 
 
 461), 399. 
 Russell V. Richards (10 Me. 429), 
 
 366. 
 
TABLE OF CASES CITED. 
 
 liii 
 
 Bassell v. Rumse; (35 111.362), 316, 
 
 368. 
 Rust V. Lowe (6 Mass. 90), 394. 
 Ruth, In re (32 Iowa, 253), 324. 
 Ryckman v. Coleman (13 Abb. Pr. 
 
 398), 206. 
 Ryder v. Innerarity (4 Stew. & P. 
 
 14), 361. 
 Byerson v. Brown (35 Mich. 333; 
 
 24 Am. Rep. 564), 378, 385. 
 
 Sadler v. Langbam (34 Ala. 311), 
 
 379, 381, 386. 
 Sager o. Portsmouth, etc., R. R. 
 
 Co. (31 Me. 228), 257. 
 Sala V. New Orleans (2 Woods, U. 
 
 S. C. C. 188), 675. 
 SaUee v. Smith (llJohns. 500), 463. 
 Sampson v. Henry (13 Pick. 336), 
 
 29. 
 Sampson o. Shaw (101 Mass. 145), 
 
 250. 
 Sanborn t>. Benedict (78 111. 309), 
 
 265. 
 Sanford v. Bennett (24 N. Y. 20), 
 
 64. 
 Sandford v. Nichols (13 Mass. 286; 
 
 7 Am. Dec. 161), 463,465. 
 Sante v. State (2 Clarke (Iowa) 
 
 165), 304. 
 Santissima Trinidad, The (7 Wheat. 
 
 283), 139. 
 Sappington v. Watson (60 Mo. 
 
 83), 61. 
 Satterlee v. Matthewson (2 Pet. 
 
 380), 76. 
 Saunders v. Baxter (6 Heisk. 369), 
 
 66. 
 Saunders v. Mills (6Bing. 213), 67. 
 Savannah v. Charlton (36 Ga. 460), 
 
 272, 280. 
 Sawyer v. Davis (136 Mass. 239; 
 
 49 Am. Rep. 27), 424. 
 Sawyer v. Vt., etc., R. R. Co. (105 
 
 Mass. 196), 697. 
 
 Sawyer, etc., v. Taggart (14 Bush, 
 
 730), 265, 269. 
 Schmidt v. Weidman (63 Pa. St. 
 
 173), 65. 
 School Dist. V. Boston, etc., B. B. 
 
 Co. (102 Mass. 562), 257. 
 Schurmeier ». St. Paul, etc., B. R. 
 
 Co. (10 Minn. 82), 411. 
 Schwuchon v. Chicago (68 111. 444), 
 
 288. 
 Scott V. Wakem (3 Fost. & Fin. 
 
 328), 108. 
 Scribner v. Rapp (5 Watts, 311; 
 
 30 Am. Dec. 327), 166. 
 Scripps V. Reilly (38 Mich. 10), 
 
 57. 
 Scudder v. Trenton, etc., Co. (1 N. 
 
 J. Eq. 694; 23 Am. Dec. 756), 
 
 378. 
 Seamen's Friend Society v. Boston 
 
 (116 Mass. 181), 473. 
 Searight v. Calbraith (4 Dall. 324), 
 
 215. 
 Seers v. West (1 Murphy, 291;, 272. 
 Selmanw. Wolf (27 Tex. 78), 617. 
 Servatius v. Pichel (34 Wis. 292), 
 
 60. 
 Sessions ». Crunkleton (20 Ohio 
 
 St. 349), 445. 
 Shanks v. Dupont (3 Pet. 242), 139. 
 Shannon v. Frost (3 B. Mon. 253), 
 
 165. 
 Sharpe v. Johnson (59 Mo. 577; 76 
 
 Mo. 660), 65. 
 Sharpless v. Mayor (21 Pa. St. 147), 
 
 8. 
 Sharpless v. Mayor, etc., (21 Pa. St. 
 
 145), 472. 
 Shaul V. Brown (28 Iowa, 57; 4 Am. 
 
 Rep. 151), 61. 
 Shaw V. Clark (49 Mich. 384), 267. 
 Shawv. Dennis (10 111. 405), 82. 
 Shehan v. Barnett (6 B. Mon. 594), 
 
 369. 
 Sheldon v. Van Buskirk (2 N. Y. 
 
 473), 82. 
 
liv 
 
 TABLE OF CASES CITED. 
 
 Sheldon •«. Wright (5 N. Y. 497), 
 
 83. 
 Sheperd v. Buff., N. Y.& Erie B. E. 
 
 Co. (35N. Y. 641), 598. 
 Shepherd v. People (25 N. Y. 124), 
 
 77. 
 Shepherd v. People (25 N. Y. 406), 
 
 77. 
 Shepherdson v. Milwaukee, etc., E. 
 
 E. Co. (6 Wis. 605), 421. 
 Sheppard v. Comrs. of Eoss Co. (7 
 
 Ohio, 271), 361. 
 Sherborne v. Coleback (2 Vent. 
 
 175), 260. 
 Sherman v. Brick (32 Cal. 241), 
 
 381. 
 Shocks. McChesney (4Yeates, 507; 
 
 2 Am. Dec. 415), 42. 
 Shore v. State (6 Mo. 640), 80. 
 Shorter v. People (2 N. Y. 198), 
 
 26. 
 Shover v. State (10 Ark. 259), 183. 
 Shreveport v. Levy (27 La. Ann. 
 
 671), 160, 186. 
 Shrunk v. Schuylkill Nav. Co. (14 
 
 Serg. &E. 71), 400. 
 Schultz V. Cambridge (38 Ohio St. 
 
 659), 310. 
 Shurtleff v. Stevens (51 Vt. 501 ; 31 
 
 Am. Eep. 698), 50, 59. 
 Siebold, Ex parte (100 U. S. 385), 
 
 627. 
 Simmons B. State (12 Mo. 268), 272. 
 Simms v. Eailroad Co. (12 Heisk. 
 
 621), 421. 
 Simond's Ex'rs v. Gratz (2 Pen. & 
 
 Watts, 412), 186. 
 Simpson v. Ammons (1 Biun. 175), 
 
 340. 
 Simpson v. Savings Bank (66 N. H. 
 
 466), 517. 
 Sioux City v. School District (56 
 
 Iowa, 150), 473. 
 Sirocco V. Geary (3 Cal. 69), 399. 
 Skinner v. Hartford Bridge Co. (29 
 Conn. 623), 401. 
 
 Slaughter v. Commonwealth (13 
 
 Gratt. 767), 272, 592. 
 Slaughter-house Cases (16 WaU. 
 
 106), 196, 234, 322,434. 
 Sloan v. Pac. E. E. Co. (61 Mo. 24; 
 
 21 Am. Eep. 397), 584, 591,594. 
 Sneider v. Heidelberger (45 Ala. 
 
 126), 520. 
 Smith V. Atkins (18 Vt. 461), 265. 
 Smith V. Connelly (1 T. B. Mon. 
 
 58), 385. 
 Smith V. Cooper (28 Ga. 643), 
 
 257. 
 Smith V. Eastern E. E. Co. (35 N. 
 
 H. 356), 697. >^ 
 Smith V. Howard (28 Iowa, 51), 
 
 42. 
 Smith V. Kelly (23 Miss. 167), 342. 
 Smith V. Knoxville (3 Head, 246), 
 
 310. 
 Smith V. Maryland (18 How. 71), 
 
 15. 
 Smith 1). Nelson (18 Vt. 611), 165. 
 Smith V. N. Y. Cent. E. E. Co. (24 
 
 N.Y. 222),268. 
 Smith 1). N. C. E. E. Co. (64 N. C. 
 
 235),' 267. 
 Smith o. Packard (12 Wis. 370), 
 
 618. 
 Smith V. Smith (21 111. 244), 261. 
 Smith V. Thomas (2 Bing. N. C. 
 
 372), 37. 
 Smith J). Van Gilder (26 Ark. 521), 
 
 618. 
 Smith V. Washington (20 How. 
 
 135), 401. 
 Snow V. Allen (1 Stark. 409), 63, 
 
 66. 
 Snydecker v. Brosse (51 111. 357), 
 
 465. 
 Snyder v. Penn. E. E. Co. (65 Pa. 
 
 St. 340), 411. 
 Sohier «. Mass. Gen. Hospital (3 
 
 Cush. 488), 358, 369, 362, 365. 
 Sohier v. Trinity Church (109 Mass. 
 1), 165. 
 
TABLE OP CASES CITED. 
 
 Iv 
 
 Somar v. Canaday (63 N. Y. 298; 13 
 
 Am. Eep. 523\ 345. 
 Somerville v. Richards (37 Miss. 
 
 299), 84. 
 Sommers v. Johnson (4 Vt. 278; 24 
 
 Am. Dec. 604), 518. 
 Sommer v. Wilt (4 Serg. & R. 20), 
 
 63. 
 Soule V. Winslow (66 Me. 447), 63. 
 South, etc., R. R. Co. v. Henlein 
 
 (52 Ala. 606), 257. 
 So. Ca. R. R. Co. v. Steiner (44 Ga. 
 
 646), 411. 
 Southern Express Co. v. Caperton 
 
 (44 Ala. 101), 267. 
 Southern Express v. Moon (39 Miss. 
 
 822), 257. 
 Southwestern R. R. Co. v. Tele- 
 graph Co. (46 Ga. 43), 421. 
 Southwick V. Southwick (49 N. Y. 
 
 510), 519. 
 Spalds V. Barrett (67 111. 289), 41, 
 
 43. 
 Sparhawk v. Union 'Passenger R. 
 
 Co. (54 Pa. St. 401), 187. 
 Spealman v. Railroad Co. (71 Mo. 
 
 434), 698. 
 Specht V. Commonwealth (8 Pa. St. 
 
 312), 183. 
 Speer v. Commonwealth (23 Gratt. 
 
 935; 14 Am. Rep. 164), 615. 
 Spengle v. Davy (16 Gratt. 381), 
 
 61. 
 Spiering v. Andrea (45 Wis. 330; 
 
 30 Am. Rep. 744), 51. 
 Spiller V. Wobum (12 Allen, 127), 
 
 161, 162. 
 Spinney, Ex parte (10 Nev. 323), 
 
 204. 
 Spraguei). Birchard (1 Wis. 457), 83. 
 Sprague v. Worcester (13 Gray, 
 
 493), 401. 
 Sprecker ». Wakeley (11 Wis. 432), 
 
 520. 
 Spring V. Russell (3 Watts, 294), 
 
 375. 
 
 Springer v. United States (102 U. 
 
 S. 586), 466. 
 Spring Valley Waterworks v. 
 
 Schottler (110 U. S. 347), 690, 691. 
 Stackpole v. Hennen (6 Mart. (n. 
 
 8.) 481; 17 Am. Dec. 187), 44. 
 Stacy V. Vermont Cent. R. R. Co. 
 
 (27 Vt. 39), 377. 
 Staehlin v. Destrehan (2 La. Ann. 
 
 1019), 28. 
 Stanford v. Worn (27 Cal. 171), 377. 
 Stanley!). Stanley (26 Me. 196), 585. 
 Stanley v. Webb (4 Sandf. 21), 56, 
 
 57, 58. 
 Stanton B. Allen (5 Denio, 434), 261. 
 Stanton v. Hart (27 Mich. 639), 62, 
 
 63. 
 Starr v. Camden, etc., R. R. Co. 
 
 (24 N.J. 692), 411. 
 State C.Abbott (8 W. Va. 741), 28. 
 State V. Accommodation Bk. (26 La. 
 
 Ann. 288), 576. 
 State V. Addington (77 Mo. 118), 
 
 296. 
 State V. Ah Chew (16 Nev. 5C; 40 
 
 Am. Rep. 488), 294. 
 Statei). AhSam(15Nev.27; 37 Am. 
 
 Rep. 454), 294. 
 State v.Alman (64 N. C. 364), 86, 
 
 96. 
 State V. Ambs (20 Mo. 214), 177. 
 State V. Arlin (39 N. H. 179), 77. 
 State V. Bait. & O. R. R. (ISW.Va. 
 
 362; 36 Am. Rep. 803), 177, 180, 
 
 186. 
 State V. Bank of So. Ca. (1 S. C. 
 
 63), 521. 
 State V. Battle (7 Ala. 269), 96. 
 State V. Bartlett (66 Me. 200), 94. 
 State V. Baughman (20 Iowa, 497), 
 
 304. 
 States. Bostick (4 Harr. 563) 91. 
 State V. Bott (31 La. Ann. 663; 33 
 
 Am. Rep. 224), 177. 
 State V. Brennan's Liquors (25 
 
 Conn. 278), 304,305,318. 
 
Ivi 
 
 TABLE OP CASES CITED, 
 
 State V. Brennan's Liquors (25 
 
 Conn. 278), 463, 466. 
 State V. Brockman (46 Mo. 666), 
 
 91. 
 State V. Brown (19 Fla. 563), 273. 
 State V. Burgoyne (7 Lea, 173 ; 40 
 
 Am. Eep. 60), 304, 583. 
 State V. Bumham (9 N. H. 34), 37, 
 
 40, 49. 
 State V. Burwell (63 N. C. 661), 28. 
 State V. Buzzard (4 Ark. 18), 503. 
 State V. Callendine (8 Iowa, 288), 
 
 96. 
 State V. Cameron (40 Vt. 565), 94. 
 State V. Carney (20 Iowa, 82), 
 
 304. 
 State V. Cassidy (22 Minn. 312 ; 21 
 
 Am. Kep. 767), 272, 276. 
 State V. Champeau (53 Vt. 313; 36 
 
 Am. Eep. 754), 96. 
 State V. Chandler (2Harr.553), 168, 
 
 169. 
 State V. Christman (67 Ind. 328), 
 
 310. 
 State V. Cincinnati Gas Co. (18 
 
 Ohio St. 262), 396, 402. 
 State V. Cincinnati, etc.. Gas Co. 
 
 (18 Ohio St. 292), 317. 
 State V. Cleaves (59 Me. 298 ; 8 Am. 
 
 Rep. 422), 94. 
 State V. Clottu (33 Ind. 409) 8, 561. 
 State o. Columbus Gaslight, etc., 
 
 Co. (34 Ohio St. 216 ; 32 Am. Eep. 
 
 390'), 590. 
 State V. Common Pleas (36 N. J. 72 ; 
 
 13 Am. Eep. 422), 304. 
 State V. Connor (5 Cold. 311), 96. 
 State t. Cook (24 M'nn. 247), 583. 
 State V. Cooper (22 N. J. L. 52), 31. 
 State V. Cornwall (27 Ind. 63), 512. 
 State V. Corson (59 Me. 137), 79. 
 State V. County Court (19 Ark. 360), 
 
 473. 
 State V. Curtis (5 Humph. 601), 97. 
 State V. Dixon (75 N. C. 275), 26. 
 State V. Donehey (8 Iowa, 396), 304, 
 
 State V. Drainage Co. (45 N. J. L. 
 
 91), 446. 
 State V. Duelle (48 Mo. 282), 82. 
 State V. Bast Orange (12 Vroom, 
 
 127), 594, 597. 
 State V. Endom (23 La. Ann. 663), 
 
 a82, 283. 
 State V. Farris (45 Mo. 183), 166. 
 State V. Freeman (38 N. H.426), 310. 
 State V. Garvey (28 La. Ann. 955; 26 
 
 Am. Eep. 123), 91. 
 State V. Garvey (42 Conn. 232), 96. 
 State V. Gazley (5 Ohio, 21), 272. 
 State V. Gibson (10 Ired. 214), 29. 
 State V. Gibson (36 Ind. 389 ; 10 Am. 
 
 Eep. 45), 537. 
 State s.Goff (20 Ark. 289), 188. 
 States. Graves (19 Md. 351), 423. 
 State V. Green (16 Iowa, 239), 96. 
 State V. Guild (10 N. J. 163; 18 
 
 Am. Dec. 404), 91. 
 State V. Gurney (37 Me. 166), 304. 
 State V. Hairston (63 N. C. 451), 537. 
 State V. Harris (10 Iowa, 441), 273. 
 State V. Hayne (4 Eich. L. 403), 383. 
 State V. Hebrew Congregation (30 
 
 La. Ann. 306; 33 Am. Bep. 317), 
 
 166. 
 State V. Herod (29 Iowa, 123), 272. 
 State V. Herod (39 Iowa, 133), 580. 
 State V. Hibbard (3 Ohio, 33), 372. 
 State V. Hoboken (33 N. J. L. 380), 
 
 272, 374, 281. 
 State V. Hoboken (33 N. J. 280), 
 
 444. 
 State V. Holmes (48 N. H. 377), 84. 
 State w. Hooker (17 Vt. 658), 94. 
 State V. Hooper (5 Ired. 201), 537. 
 State V. Hudson (78 Mo. 302), 273. 
 State t. Indianapolis (69 Ind. 375; 
 
 35 Am. Eep. 223), 473. 
 State V. Jackson (80 Mo. 176), 537. 
 State V. Jervey (4 Strobh. 304), 82. 
 State V. Johnson (75 N. C. 174), 28. 
 State V. Jumel (13 La. Ann. 399), 
 
 503. 
 
TABLE OF CASES CITED. 
 
 Ivii 
 
 State V. Kearney CI Ha-wks, 63), 23. 
 States. Kennedy (20 Iowa, 569), 26. 
 State V. Kennedy (67 N. C. 26), 537. 
 State V. Kenney (76 N. C. 251 ; 22 
 
 Am. Rep. 683), 637. 
 State V. Lathrop (10 La. Ann. 398), 
 
 281. 
 State V. Laverack (34 N. J. 201), 
 
 395, 409. 
 State V. Lawrence (57 Me. 375), 94. 
 State V. Learned (47 Me. 426), 79. 
 State V. Lee (10 R. I. 494), 67. 
 State V. Little (1 N. H. 257), 96. 
 State I/. Larry (7 Barb. 95), 187. 
 State V. Lowborne (66 N. C. 588) , 91 . 
 State V. Ludington (33 Wis. 107), 
 
 303. 
 State V. Ludwig (21 Minn. 202), 310. 
 State ». Lutz (66 N. C. 503), 82. 
 State V. Madden (81 Mo. 421), 544. 
 State 0. Manning (14 Texas, 402) , 79. 
 State V. McGinniss (37 Ark. 362), 
 
 616. 
 State V. McNally (34 Me. 210), 82. 
 State V. Messenger (27 Minn 119), 
 
 421. 
 State V. Miller (48 Me. 676), 498. 
 State V. Mills (34 N. J. 177), 473. 
 State V. Milwaukee Gas-light Co. 
 
 (29 Wis. 454), 317. 
 State V. Mitchell (3 Blackf . 229), 503. 
 State V. Moffett (1 Greene (Iowa), 
 
 247), 617. 
 State V. Morris (77 N. C. 512), 682. 
 State V. Maxey (1 McMull. 501), 
 
 122. 
 State V. Mayor of Mobile (5 Port. 
 
 279; 30 Am. Dec. 664), 420. 
 State t). Mayor of Newark (35 N. J. 
 
 L. 157), 674. 
 State V. Magler (29 Kans. 252 ; 44 
 
 Am. Rep. 634), 304. 
 States. Ned (7 Port. 217), 96. 
 State V. Nelson (26 Ind. 366), 96. 
 State V. New Jersey, etc., R. R. Co. 
 
 (29 N. J. L. 170), 429. 
 
 State V. North (27 Mo. 464), 473, 
 
 615, 616. 
 State V. Norvell (2 Yerg. 24), 97. 
 State V. Noyes (47 Me. 198), 3. 
 State V. Noyes (30 N. H. 279), 304. 
 State V. Noyes (47 Me. 189), 392, 674, 
 
 683. 
 State V. Ober (62 N. H. 459; 13 
 
 Am. Rep. 88), 95. 
 State V. O'Flaherty (7 Nev. 163), 79. 
 State V. Parker (33 N. J. 213), 473. 
 State V. Paul (6 R. I. 186), 304. 
 State V. Peckham (8 R. I. 298), 304. 
 State V. Penny (19 S. C. 218) 627. 
 State V. Phalen (3 Harr. 441), 291. 
 State V. Plunkett (3 Harr. N. J. 5), 
 
 273. 
 State V. Prescott (27 Vt. 194), 304. 
 State V. Prince (63 N. C. 529), 91. 
 State V. Proudflt (3 Ohio, 33), 272. 
 State V. Redman (17 Iowa, 329), 97. 
 State V. Reid (1 Ala. 612), 503 
 State V. Reinhardt (63 N. C. 547), 
 
 637. 
 State V. Roane (2 Der. 68), 84. 
 State V. Roberts (1 Dey. 259), 91. 
 State V. Roberts (11 Gill & J. 506), 
 
 272,281. 
 State V. Rockafellow (6 N. J. 332), 
 
 80. 
 State V. Ross (76 N. C. 242), 587. 
 State V. Ryan (13 Minn. 370), 79. 
 State V. Scott (1 Bailey, 294), 83. 
 State V. Seary (20 Mo. 489), 304. 
 State V. Seymour (36 N. J. L. 47), 
 
 377. 
 State V. Sherman (20 Mo. 265), 273. 
 States. Shippen (10 Minn. 223), 26. 
 State V. Slack (6 Ala. 676), 97. 
 State V. Smith (32 Me. 369), 31. 
 State V. Smith (11 La. Ann. 633), 
 
 503. 
 State V. Smythe (14 R. I. 100 ; 61 
 
 Am. Rep. 344), 292, 499. 
 State V. Snow (3 R. I. 68), 304, 466, 
 498. 
 
Iviii 
 
 TABLE OF CASES CITED. 
 
 State V. Southern, etc., B. K. Co. 
 
 (24 Tex. 80), 576. 
 State V. Spier (1 Dev. 491), 96. 
 State V. Staley (14 MinD. 105), 91. 
 State I). Start (7 Iowa, 499), 203. 
 Staten 1). State (30 Miss. 619), 28. 
 State V. Sterling (8 Mo. 797), 291. 
 State «. Stockton (61 Mo. 382), 28. 
 State V. Strauss (49 Md. 288), 310. 
 State V. Summons (19 Ohio, 139), 80 
 State V. Thomas (64 N. C. 74), 93. 
 State V. Tombeckbee Bk. (2 Stew. 
 
 30), 575. 
 State V. Vaigneur (5 Rich. 391), 91. 
 State V. Vance (17 Iowa, 138), 28. 
 State V. Walker (26 Ind. 346), 97. 
 State*. Washington (44 N. J. L. 605 ; 
 
 43 Am. Eep. 402), 289. 
 State V. Watkins (3 Mo. 480), 203. 
 State V. Weed (21 N. H. 262), 82. 
 State V. Welch (36 Conn. 215) 310. 
 State 17. Wentworth (65 Me. 254; 
 
 20 Am. Bep. 688), 95. 
 State V. Wheeler (25 Conn. 290), 8, 
 
 304. 
 State V. Wheeler (44 N. J. L. 88), 
 
 449. 
 State 0. Will orth (74 Mo. 528 ; 41 
 
 Am. Eep. 330), 503. 
 State ». Williams (2 Bich. 418), 77, 
 
 79. 
 State «. WUliams (11 S. C. 288), 291. 
 State V. Wilson (48 N. H. 398), 79. 
 State V. Wiseman (68 N. C. 203), 96. 
 State V. Woodward (89 Ind. 110; 
 
 46 Am. Rep. 160), 583. 
 Stearns v. Sampson (59 Me. 569; 8 
 
 Am. Bep. 442), 30. 
 Steele v. Gellatly (41 111. 39), 346. 
 Steele J). Spruance (22 Pa. St. 256), 
 
 367. 
 Stein n. Burden (24 Ala. 130), 394, 
 
 397. 
 Stein V. Mayor (24 Ala. 614), 8. 
 Stein V. Mobile (49 Ala. 362 ; 20 Am- 
 
 Eep. 283), 515. 
 
 Sterling v. Warden (51 N. H. 239 ; 
 
 12 Am. Bep. 80), 30. 
 Stetson V. City Bank (2 Ohio St. 
 
 114), 586. 
 Stevens v. Middlesex Canal (12 
 
 Mass. 466), 376. 
 Stevens v. Paterson, etc., B. R. Co. 
 
 (34 N.J. 532), 398. 
 Stewart v. Hartman (46 Ind. 331), 
 
 381. 
 Stewarts. Potts (49 Miss. 949), 282. 
 St. Helen's Smelting Co. v. Tipling 
 
 (11 H. L. Cas. 642), 34. 
 Stiles V. Nokes (7 East, 493), 57. 
 St. Joseph, etc., E. E. Co. v. CaUen- 
 
 der (13 Kans. 496), 377. 
 St. Louis ». Green (70 Mo. 662; «. 
 
 c. 6 Mo. App. 590), 272, 282. 
 St. Louis V. Manfg. Sav. Bank (49 
 
 Mo. 574), 575. 
 St. Louis V. Weber (14 Mo. 647), 
 
 313, 434. 
 St. Louis, etc., B. E. Co. v. Teters 
 
 (68 111. 144), 377. 
 Stockton «. Whitmore (50 Cal. 554), 
 
 377. 
 Stokes V. New York (14 Wend. 87), 
 
 209. 
 Stokes V. People (53 N. Y. 164), 79. 
 Stone V. Mayor, etc., of N. Y. (25 
 
 Wend. 157), 399. 
 Stone 1). Mississippi (101 U. S. 814), 
 
 581, 582. 
 Stone V. Stevens (12 Conn. 219), 61. 
 Stone V. Stone (32 Conn. 142), 564. 
 Stoneman v. Commonwealth (26 
 
 Gralt. 887), 28. 
 Storey v. Wallace (60 111. 51), 57. 
 Story V. Elliott (8 Cow. 27), 183. 
 Story V. Firman (25 N. Y. 214), 518. 
 Story V. N. Y. Elevated E. E. Co. 
 
 (90 N. Y. 122), 403, 407. 
 Story u. Salomon (71 N. Y. 420), 
 
 266, 267, 268. 
 Stoughton V. Taylor 2 Paine, 655), 
 
 139. 
 
TABLE OF CASES CITED. 
 
 lix 
 
 Stover V. People (56 N. Y. 315), 
 
 94. 
 Stover V. State (10 Ark. 259), 
 
 178. y 
 
 St. Paul V. Smith (27 Minn. 164 ; 38 
 
 Am. Rep. 296), 272. 
 St. Pauls. Traeger (25 Minn. 248; 
 
 33 Am. Rep. 462), 272, 281. 
 Stratton v. Collins (43 N. J. 563), 
 
 472. 
 Strauss v. Meyer (48 111. 385), 41. 
 Street v. Wood (15 Barb. 105), 49, 
 
 50. 
 Street Railway v. Cummingsville 
 
 (14 Ohio St. 523), 395, 402, 410. 
 StringfellowD. State (26 Miss. 155), 
 
 93. 
 Strong V. Clem (12 Ind. 37), 347. 
 Strong V. State (1 Blackl. 193), 77. 
 Strutbers v. Railroad Co. (87 Pa. 
 
 St. 282), 411. 
 Sturdevant a. Norris (30 Iowa, 65), 
 
 346. 
 Sturgeon v. St. Louis, etc., R. R. 
 
 Co. (60 Mo. 669), 257. 
 Sturgis V. Crownlnshield (4 Wheat. 
 
 122), 518, 521. 
 Stnrgis v. Swing (18 111. 176), 342, 
 
 357. 
 Sullivan v. Oneida (61 111. 242), 79, 
 
 466. 
 Sutton V. Asken (66 N. C. 172 ; 8 
 
 Am. Rep. 500), 346. 
 Summons v. State (5 Ohio St. 326), 
 
 94. 
 Sunderlin v. Bradstreet (46 N. Y. 
 
 188; 7 Am. Rep. 322), 37. 
 Supervisors of Doddridge Co. v. 
 
 Stout(9 W. Va. 703), 377. 
 Swain v. Mizner (8 Gray, 182), 465. 
 Swan V. Williams (2 Mich. 427), 376. 
 Sweeney «. Baker (13 W. Va. 169 ; 
 
 31 Am. Rep. 757), 61, 52. 
 Sweet V. Wabash (41 Ind. 7), 282. 
 Swindler v. Billiard (2 Rich. 286), 
 
 256. 
 
 T. 
 
 Taggert v. Western, etc., R. R. Co. 
 
 (24 Md. 563), 579, 580. 
 Talbot V. Hudson (16 Gray, 417), 
 
 421. 
 Talbot B. Janson, (3Dall.l33), 139. 
 Tapley v. Smith (18 Me. 12), 366. 
 Tarlton v. Baker (18 Vt. 9), 261. 
 Tamer v. State (67 Ind. 595), 187. 
 Tatem v. Wright et al. (23 N. J. L. 
 
 429), 692. 
 Taylor v. Church (8 N. Y. 452), 37, 
 
 52. 
 Taylor v. Marcy (25 111. 518), 421. 
 Taylor v. Miles (5 Kans. 498 ; 7 Am. 
 
 Rep. 558), 519. 
 Taylor v. Plymouth (8 Met. 462), 
 
 399. 
 Taylor v. Porter (4 Hill, 140), 381. 
 Taylor v. Porter 4 Hill, 145), 5, 
 
 358. 
 Taylor v. Sample (51 Ind. 423), 347. 
 Taylor v. State (35 Tex. 97), 96. 
 Temple o. Sumner (51 Miss. 13), 
 
 272. 
 Teneyck v. Canal Co. (18 N. J. 200; 
 
 37 Am. Dec. 233), 379. 
 Tennessee v. Sneed (96 U. S. 69), 
 
 517. 
 Tenney v. Lanz (16 Wis. 666), 277. 
 Tenney v. Lenz (16 Wis. 666), 512, 
 
 513. 
 Tenney, Ex parte (2 Duv. (Ky.) 
 
 351), 203. 
 Territory v. Dakota (2 Dak. 155), 
 
 453. 
 Terry v. Fellows (21 La. Ann. 375), 
 
 42, 56, 69. 
 Terry v. 01cotfr(4Conn.442), 291. 
 Theilan v. Porter (14 Lea, 622 ; 52 
 
 Am. Rep. 173), 441. 
 Thien v. Voegtlander (3 Wis. 461), 
 
 385. 
 Thomas I). Crosswell (7 Johns. 264; 
 
 5 Am. Dec. 269), 52. 
 
Ix 
 
 [table of cases cited. 
 
 Thomas v. Leland (24 Wend. 65), 
 
 472. 
 Thomas v. Tiles (3 Ohio, 74), 246, 
 
 251. 
 Thompson v. Commonwealth (20 
 
 Gratt. 724), 91. 
 Thompson v. Commonwealth (81 
 
 Pa. St. 314), 616. 
 Thompson v. Spraigue (69 Ga. 409 ; 
 
 47 Am. Kep. 760), 627. 
 Thorn v. Blanchard (5 Johns. 508), 
 
 49. 
 Thorne u. Travelers' Ins. Co. (80 
 
 Pa. St. 16; 8 Am. Eep. 626), 592. 
 Thornton v. Marginal Freight Rail- 
 way (123 Mass. 32), 675. 
 Thorpe v. Rutland, etc., E. R. (27 
 
 Vt. 140), 2, 4, 578, 681, 697. 
 Thrall ». Hill (110 Mass. 328), 265. 
 Thunder Bay, etc., Co., ». Speechly 
 
 (31 Mich. 332), 398. 
 Tidewater Co. v. Coster (3 C. E. 
 
 Green, 618), 446. 
 Tiflti). Griffin (5 Ga. 186), 519. 
 Tillsoni;. Robbins (68 Me. 295; 28 
 
 Am. Rep. 60), 52. 
 Tinicum Fishing Co. v. Carter (61 
 
 Pa. St. 21), 400. 
 Tinicum Fishing Co. v. Carter (90 
 
 Pa. St. 85; 35 Am. Rep. 632), 
 
 622. 
 Todd V. Jackson (26 N. J. L. 525), 
 
 30. 
 Toledo, etc., R. R. Co. o. Fowler 
 
 (22 Ind. 316), 597. 
 Toledo, etc., R. R. Co. v. Jackson- 
 ville (67 111. 37), 681, 594, 597. 
 Tomlin v. Dubuque, etc., R. R. Co. 
 
 (32 Iowa, 106; 7 Am. Rep. 176), 
 
 398. 
 Tonawanda R. E. Co. v. Munger (5 
 
 Denio, 256), 407. 
 Torrey v. Field (10 Vt. 353), 56. 
 Towanda Bridge, In re (91 Pa. St. 
 
 216), 392. 
 Tower v. Tower (18 Pick. 262), 610. 
 
 Town Council v. Harbers (6 Rich 
 
 L. 96), 273. 
 Town of Guilford v. Supervisors (13 
 
 N. Y. 143), 8. 
 Trammell ». Bradley (37 Ark. 356), 
 
 308. 
 Transportation Co. v. Chicago (99 
 
 U. S. 636), 401. 
 Travis v. Smith (1 Pa. St. 234), 61. 
 Treat v. Lord (42 Me. 662), 617. 
 Tredway v. Railroad Co. (43 Iowa, 
 
 527), 598. 
 Tremont v. Clarke (33 Me. 482), 82. 
 Trenton Ins. Co. a. Johnson (4 
 
 Zabr. 576), 261. 
 Tribble v. Frame (1 J. J. Marsh. 
 
 599), 30. 
 True V. Int. Tel. Co. (60 Me. 9), 
 
 259. 
 Trustees v. Keeting (4 Denio, 341), 
 
 273. 
 Trustees Brooks Academy v. George, 
 
 14 W. Va. 411 ; 35 Am. Eep. 760), 
 
 494. 
 Trustees E. F. Fund o. Roome (93 
 
 N. Y. 313), 281 . 
 Trustees of Griswold College v. 
 
 State (46 Iowa, 275; 26 Am. Rep. 
 
 138), 473. 
 Trustees of M. E. Church v. Ellis 
 
 (38 Ind. 3), 473. 
 Trustees of Watertown v. Coweu (4 
 
 Paige, 510), 404. 
 Trustees, etc., v. Indiana (14 How. 
 
 268), 574. 
 Tuckahoe Canal Co. v. R. R. Co. (11 
 
 Leigh, 42; 36 Am. Dec. 374), 392. 
 Turner v. Franklin (29 Mo. 285), 
 
 82. 
 Turner v. Maryland (107 U. S. 38), 
 
 208, 615. 
 Turner v. State (4 Ala. 21), 77. 
 Turner v. Walker (3 G. & J. 380), 
 
 63. 
 Turney u. Wilson (7 Yerg. 540), 
 
 256. 
 
TABLE OF CASES CITED. 
 
 Ixi 
 
 TuthiU V. Scott (44 Vt. 625; 6 Am. 
 
 Rep. 301), 460. 
 Tweedy v. State (5 Iowa, 433), 26. 
 Twitchell -a. Com. (7 Wall. 321) 
 
 15. 
 Twitchell v. Shaw (10 Cush. 46), 
 
 83. 
 Tyler v. Beacher (44 Vt. 648), 378, 
 
 381, 385. 
 Tyler v. W. U. Tel. Co. (60 111. 421 ; 
 
 14 Am. Rep. 38), 259. 
 
 U. 
 
 Underwood v. People (32 Mich. 1), 
 
 111. 
 Underwood «. Robinson (106 Mass. 
 
 296), 82. 
 Union Nat. Bk. of Chicago v. Carr 
 
 (15 Fed. Rep. 438), 268. 
 Union Pac. Ry. ■». U. S, (99 U. S. 
 
 700), 589. 
 United States v. Bainbridge (1 Ma- 
 son, 71), 555. 
 United States v. DeWltt (9 Wall. 
 
 541), 613 
 United States v. Gillies (1 Pet. C. C. 
 
 159), 139. 
 United States v. Hamilton (3 Dall. 
 
 17), 80. 
 United States v. Harris (1 Sumn. 
 
 21), 375. 
 United States v. Marigold (9 How. 
 
 660), 628. 
 United States v. Perez 9 Wheat. 
 
 679), 96. 
 United States v. Reed (56 Mo. 565), 
 
 377. 
 Universalist Society v. Providence 
 
 (6 R. I. 235), 474. 
 University of No. Ca. v.TS. 0. R. R. 
 
 Co. (76 N. C. 103; 22 Am. Rep. 
 
 671), 494. 
 Updegraph v. Commonwealth (11 
 
 S. & R. 394), 169, 171. 
 Usher v. Severance (21 Me. 9 ; 37 
 
 Am. Dec. 33) 58. 
 
 Van Arnsdale v. Laverty (69 Pa. St. 
 
 103), 49. 
 Van Baalen v. People (40 Mich. 
 
 458), 274. 
 Van Baumback v. Bade (9 Wis. 
 
 559), 515. 
 Van Buren v. Downing (41 Wis. 
 
 122), 615. 
 Vanderbelt v. Adams (7 Cow. 349), 
 
 439. 
 Vanderveer v. Mattocks (3 Ind. 
 
 479), 84. 
 Vanderzee v. McGregory (12 Wend. 
 
 545), 49. 
 Van Deusen v. Newcomer (40 Mich. 
 
 90), 104, 107, 109. 
 Vandine, Petitioner (9 Pick. 187 ; 7 
 
 Am. Dec. 351), 316. 
 Van Duzer v. Van Duzer (6 Paige, 
 
 366), 344. 
 Varden v. Mount (78 Ky. 86 ; 39 Am. 
 
 Rep. 366), 507. 
 Varner «. Martin (21 W. Va. 548), 
 
 379, 381, 383. 
 Van Rensselaer v. Snyder (9 Barb , 
 
 302; 13 N. Y. 299), 518. 
 Varrick v. Smith, 5 Paige, 137), 5, 
 
 358, 375, 397. 
 Vansee v. Lee (1 Hill (S.C), 197; 26 
 
 Am. Dec. 168), 41. 
 Veazie v. Mayo (45 Me. 560 ; 49 Me. 
 
 156), 599. 
 Veazie Bank v. Fenno (8 Wall. 533), 
 
 469. 
 Venard u. Cross (8 Kan. 248) 385. 
 Vincennes v. Richards (23 Ind. 381), 
 
 401. 
 Vidal V. Girard's Exrs. (2 How. 
 
 127), 167. 
 Virginia, etc., R. R. Co. v. Sayers 
 
 (26 Gratt. 328), 257. 
 Vise V. Hamilton Co. (19 111. 18), 90. 
 Vogelsang v. State (9 Ind. 112), 
 
 183. 
 
Ixii 
 
 TABLE OF CASES CITED. 
 
 w. 
 
 Wabash, St. L. & P. R. R. Co. v. 
 
 People (105 111.231), 617. 
 Wadleigh v. Gilman (12 Me. 403), 
 
 439. 
 Wadsworth v. Sharpsteen (8 N. Y. 
 
 388), 497. 
 Wager v. Troy Union R. E. Co. (25 
 
 N. Y. 526), 410, 418. 
 Waits V. Merrill (4 Me. 102 ; 16 Am. 
 
 Dec. 238), 165. 
 Walieraan v. Dalley (44 Barb. 498), 
 
 252. 
 Wolcott V. Heath (78 111. 433), 265. 
 Waldeni). Dudley (49 Mo. 419), 82. 
 Wales V. Stetson (2 Mass. 143), 
 
 574. 
 Wallier v. Deaver (5 Mo. App. 139), 
 
 346. 
 Walljer v. Springfield (94 III. 364), 
 
 281. 
 Wall V. State (51 Ind. 453), 28. 
 Wall V. Trumbull (16 Mich. 228), 
 
 83. 
 Walling V. Michigan (116 U. S. 
 
 446), 615. 
 Walpole V. Saunders (16 E. C. L. E. 
 
 276), 260. 
 Walter v. People (32 N. Y. 147), 
 
 79. 
 Walter v. Sample (25 Pa. St. 275), 
 
 63. 
 Walther v. Warner (25 Mo. 277), 
 
 421. 
 Walton V. Commonwealth (16 B. 
 
 Mon. 15), 79. 
 Walton V. Fill (1 Dev. & B. 507), 
 
 30. 
 Wamesit Power Co. v. Allen (120 
 
 Mass. 352), 377. 
 Ward V. Parwell (97 111. 693), 586. 
 Ward B. Greenville (1 Baxt. 228; 
 
 35 Am. Rep. 700), 310. 
 Ward V. State (31 Md. 279; s. c. 
 
 12 Wall. 418), 615. 
 
 Ware v. Miller (9 S. C. 13), 618. 
 Ware u. Owens (42 Ala. 212), 346. 
 Warner v. Paine (2 Sandf. 195), 43. 
 Warner v. Shed (10 Johns. 138), 
 
 82. 
 Warren v. Commonwealth (37 Pa. 
 
 St. 45), 79. 
 Warren v. Mayor, etc., of Charles- 
 town (2 Gray, 98), 304. 
 Warren v. St. Paul, etc., R. E. Co. 
 
 (18 Minn. 384), 376. 
 Wartman v. Philadelphia (33 Pa. St. 
 
 202), 312, 313,316, 434. 
 Warwick v. Cooper (5 Sneed, 659), 
 
 531. 
 Washburn v. Gilman (64 Me. 163; 
 
 18 Am. Rep. 246), 449. 
 Washington Bridge Co. v. State (18 
 
 Conn. 63), 584. 
 Waterman v. Johnson (13 Pick. 
 
 261), 452. 
 Waterworks v. Schotler (110 U. 
 
 S. 347), 234. 
 Waterworks Co. v. Burkhardt (41 
 
 Ind. 364), 375, 378, 396. 
 Watkins v. Walker Co. (18 Texas, 
 
 585), 392. 
 Watson 1). Avery (2 Bush, 332), 165. 
 Watson •». Jones (13 Wall. 679), 
 
 165, 166. 
 Watson V. Mercer (8 Pet. 88), 76, 
 
 362. 
 Watson V. N. Y. Cent. R. R. Co. 
 
 (47 N. Y. 157), 518. 
 Watson V. Watson (9 Conn. 140), 
 
 82, 83. 
 Watson V. Watson (13 Conn. 88) 
 
 344. 
 Watson, In re (15 Fed. Rep. 511), 
 
 616. 
 Wayne Co. v. Waller, (90 Pa. St. 
 
 99; 35 Am. Rep. 636), 90. 
 Weaver v. Fegely (29 Pa. St. 27), 
 
 627. 
 Weaver v. Gregg (6 Ohio St. 547), 
 
 346. 
 
TABLE OF CASKS CITED. 
 
 Ixiii 
 
 Webb V. Den (17 How. 576), 619. 
 Webb V. Dunn (18 Fla. 721), 626. 
 Webbe v. Commonwealth (33 Gratt. 
 
 898), 282. 
 Webber v. Gay (24 Wend. 485), 82, 
 
 83. 
 Webster v. Potter (105 Mass. 416), 
 
 366. 
 Weeks v. Milwaukee (10 Wis. 242), 
 
 473. 
 Weil V. Eicord (9 C. E. Green, 169), 
 
 428. 
 Weise v. Smith (3 Ore. 445; 8 Am. 
 
 Rep. 621), 617. 
 Weister v. Hade (62 Pa. St. 474), 
 
 472. 
 Welch V. Boston, etc., K. R. Co. 
 
 41 Conn. 333), 267. 
 Welch V. Hotchkiss (39 Conn. 140), 
 
 274. 
 Welch V. Hotchkiss (39 Conn. 144), 
 
 439, 441. 
 Welch V. Stowell (2 Dougl. Mich. 
 
 332), 441. 
 Weller v. Snover (42 N. J. L. 341), 
 
 451, 498. 
 Wells V. N. Y. Cent. R. E. Co. (24 
 
 N. Y. 181), 258. 
 Wells V. Somerset, etc., R. R. Co. 
 
 (47 Me. 345), 392. 
 Welsh V. Chicago, B. & Q. E. R. 
 
 Co. (53 Iowa, 632), 598. 
 Westv. Sansom (44 Ga. 295), 516. 
 West V. Stewart (7 Pa. St. 122), 366. 
 West Jersey R. R. Co. v. Cape May, 
 
 etc., Co. (34 N. J. Eq. 164), 411. 
 West Eiver Bridge v. Dix (6 How. 
 
 507), 392. 
 W. V. Tel. Co. V. Carew (15 Mich. 
 
 525), 259. 
 W. U. Tel. Co. V. Graham (1 Cal. 
 
 230), 259. 
 W. XJ. Tel. Co. V. Mayor (28 Ohio 
 
 St. 621), 472. 
 W. U. Tel. Co. V. Tyler (74 111. 
 
 168), 259. 
 
 Westervelt v. Gregg (12 N. Y. 202), 
 
 344. 
 Weston V. Foster (7 Met. 297), 396. 
 W. Va. Transportation Co. v. Vol- 
 canic Oil, etc., Co. (5 W. Va. 
 
 382), 377, 378. 
 Wheeler v. Friend (22 Tex. 683), 
 
 261. 
 Wheeler v. Nesbit (24 How. (U. S.) 
 
 546), 61. 
 Wheeler v. Shields (8 111. 348), 54. 
 Wheeler, etc.. Transportation Co. 
 
 V. City of Wheeling (9 W. Va. 
 
 170; 27 Am. Eep. 662), 626. 
 Wheeling Bridge Case (13 How. 518 ; 
 
 18 How. 421), 618. 
 Wheelock'B. Young (4 Wend. 647), 
 
 392. 
 Whitcomb v. Gilman (35 Vt. 497), 
 
 188. 
 White V. Carroll (42 N. Y. 166; 1 
 
 Am. Eep. 503), 42. 
 White V. Carroll (42 N. Y. 161), 205. 
 White V. Charleston (1 Hill (S. C.) 
 
 571), 399. 
 White's Creek Turnpike Co. v. 
 
 Davidson Co. (3 Tenn. Ch. 896), 
 
 584. 
 White V. Hart (13 Wall. 646), 515. 
 White V. Flynn (23 Ind. 46), 519. 
 White V. Graves (107 Mass. 325 ; 9 
 
 Am. Rep. 38), 346. 
 White V. Moses (21 Cal. 44), 859. 
 White V. Nashville, etc., R. R. Co. 
 
 (7 Heisk. 588), 421. 
 White I). Nichols (3 How. 266), 36, 
 
 37. 
 White V. Tucker (16 Ohio St. 468), 
 
 62. 
 White V. Yazoo (27 Miss. 357), 33. 
 Whitehead v. Latham (83 N. C. 
 
 232), 518. 
 Whitehead v. Root (2 Mete. (Ky.) 
 
 584), 365. 
 Whitman v. Devere (33 Wis. 70), 
 
 303. 
 
Ixiv 
 
 TABLE OF CASES CITED. 
 
 Whiteman's Ex'rs v. Wilmington, 
 
 etc., E. K. Co. (2 Harr. 5U), 376. 
 White Elver Turnpike Co. v. Vt. 
 
 Cent. E. E. Co. (21 Vt. 590"), 392. 
 White Eiver Turnpike v. Central 
 
 E. E. Co. (21 Vt. 690), 376. 
 Whitaey «. Allen (62 111.472), 49. 
 Whitney v. Bartholomew (21 Conn. 
 
 213), 34. 
 Whitney v. Peckham (15 Mass. 242), 
 
 61. 
 Whitney v. Eichardson (31 Vt. 
 
 300), 367. 
 Whittaker v. Perry (38 Vt. JOT), 29. 
 Whittlngham v. Bowen (22 Vt. 
 
 317), 381. 
 Wicker v. Hotchkiss (62 111. 107), 
 
 63. 
 Wiggins V. Chicago (68 111. 372). 
 Wiggins Ferry Co. v. East St. 
 
 Louis (107 U. S. 365), 621, 625. 
 Wilcox V. Hemming (58 Wis. 144; 
 
 46 Am. Sep. 625), 607. 
 Wild D. Delg (43 Ind. 4.5; 13 Am. 
 
 Eep. 399), 381. 
 Wilder V. Me. Cent. E. E. Co. (65 
 
 Me. 332), 597. 
 Wiley V. Owens (39 Ind. 429), 273. 
 WilkersoQ i;. Eust (57 Ind. 172), 
 
 303. 
 Wilkinson v. Arnold (13 Ind. 45), 
 
 63. 
 Wilkinson v. Leland (2 Pet. 667), 
 
 6, 368, 359, 362. 
 Willard v. Stone (17 Cow. 22), 521. 
 Williams ». Carr (80 N. C. 294), 
 
 267, 269. 
 Williams v. Commonwealth (2 
 
 Gratt. 568), 96. 
 Williams c. Courtney (77 Mo. 687). 
 Williams v. Haines (27 Iowa, 251), 
 
 518. 
 Williams v. Mayor of Detroit (2 
 
 Mich. 560), 445. 
 Williams v. Nat. Bridge Flankroad 
 
 Co. (21 Mo. 580), 409. 
 
 Williams v. N. Y. Central E. E. Co. 
 
 (16N. Y. 97),411. 
 Williams v. School District (33 Vt. 
 
 271), 380. 
 Williams v. Taylor (6 Bing. 183), 
 
 61. 
 Williams v. Tiedemann (6 Mo. App. 
 
 269), 267, 268. 
 Williams v. Van Meter (8 Mo. 339), 
 
 63. 
 Williams v. Williams (4 Thomp. & 
 
 C. 261), 108. 
 Williams' (Isaac) Case (2 Cranch, 
 
 82), 139. 
 Williamson v. Field (2 Sandf. Ch. 
 
 533), 339. 
 Williamson v. Willis (15 Gray, 427), 
 
 82. 
 Wilmarth v. Burt (7 Met. 267), 83. 
 Wilson V. Blackbird Creek Marsh 
 
 Co. (2 Pet. 246), 376. 
 Wilson V. Brown (68 Ala. 62; 29 
 
 Am. Eep. 727), 520. 
 Wilson V. Iowa (2 Ohio St. 319), 31. 
 Wilson V. John's Island Church (2 
 
 Eich. Eq. 192), 166. 
 Wilson V. McNamee (102 U. S. 
 
 572), 627. 
 Wilson a. Mayor of N. Y. (1 Denio, 
 
 695), 401. 
 Wilson V. N. Y. (1 Denio, 595), 33. 
 Wilson u.Noonau (36 Wis. 321), 62.» 
 Wilson V. Ohio, etc., E. E. Co. (64 
 
 111. 542), 76. 
 Wilson V. Supervisors of Sutter 
 
 (47 Cal. 91), 473. 
 Wilson V. Wilson (37 Mo. 1). 
 Winchell v. State (7 Cow. 526), 86. 
 Winchester v. Nutter (52 N. H. 
 
 607), 261. 
 Wlnneblddle v. Porterfield (9 Pa. 
 
 St. 137), 61. 
 Wingate v. Sluder (6 Jones (N. C), 
 
 552), 472. 
 Winnsboro v. Smart (11 Eich. L. 
 
 651), 311, 434. 
 
TABLE OF CASES CITED. 
 
 Ixv 
 
 Winona, etc., R. B. Co. v. Waldron 
 
 11 Minn. 675), 697. 
 Wisconsin River Improvement Co. 
 
 V. Manson (43 Wis. 255; 28 Am. 
 
 Eep. 542), 022. 
 Witham v. Gowen (14 Me. 362), 61. 
 Witham i). O.sburn (4 Ore. 318; 18 
 
 Am. Rep. 287), 881. 
 Withers v. Buckley (20 How. 84), 
 
 619. 
 Withers v. State (36 Ala. 262), 203. 
 WIthington v. Corey (2 N. H. 116), 
 
 367. 
 Woart V. Winnick (3 N. H. 473), 76, 
 
 77. 
 Wood V. Kelley (30 Me. 47), 452. 
 Wood o. Weir (5 B. Mon. 544), 63. 
 Woodbury v. Grimes (1 Col. 100), 
 
 518. 
 Woodman v. Howell (45 111. 367), 
 
 28. 
 Wood Mowing Machine Co. v. Cald- 
 well (51 Ind. 270; 23 Am. Eep. 
 
 641), 592. 
 WoodruEf V. Fisher (17 Barb. 224), 
 
 445, 446. 
 Woodruff V. Neal (28 Conn. 165), 
 
 407. 
 Woolever v. Stewart (36 Ohio St. 
 
 146; 38 Am. Rep. 566), 450. 
 Woolf V. ChalkcT (31 Conn. 121), 
 
 508. 
 Wolfe V. Covington, etc., K. R. Co. 
 
 (15 B. Mon. 404), 411. 
 Worcester v. N. & W. R. E. Co. 
 
 (109 Mas-i. 103), 675. 
 World V. State (50 Md. 64), 125, 
 
 130. 
 Worthington ». Scribner (108 Mass. 
 
 487; 12 Am. Rnp. 736), 41. 
 Wright V. Carter (27 N. J. 76), 
 
 409. 
 Wristht V. Cradlebaugh (3 Nev. 
 
 341), 5l!i. 
 Wrisht V. Dunham (13 Mich. 414), 
 
 619. 
 
 Wright V. State (5 Ind. 290), 96. 
 Wyatt V. Buell (47 Cal. 624), 41. 
 Wjicb V. Aspinwall (17 N. Y. 190), 
 
 50. 
 Wyman «. Fiske (3 Allen, 238), 266. 
 Wyman v. Mayorof N. Y. (11 Wend. 
 
 487), 404. 
 Wynehamer v. People (13 N. Y. 
 
 390), 8. 
 Wynehamer v. People (3 Kern. (N. 
 
 Y.) 435), 304. 
 Wynne v. Wright (1 Uev. & B. L. 
 
 19), 272. 
 
 T. 
 
 Yale, Ex parte (24 Cal. 241), 203. 
 Yarborough, Ex parte (110 U. S. 
 
 651), 614. 
 Yates V. Milwaukee (12 Wis. 673), 
 
 209. 
 Yati-s ». Milwaukee (10 Wall. 497), 
 
 398, 430. 
 Yates V. Mullen (24 Ind. 278), 366. 
 York V. Pease (2 Gray, 282) , 50. 
 York Co. V. Central R. R. Co. (8 
 
 Wall. 107), 257. 
 Young V. BearUsIey (U Paige, 93), 
 
 519. 
 Young V. Harrison (6 Ga. 130), 574. 
 Young B. McKenzie (3 Ga. 81), 381. 
 Young V. Thomas (17 Fla. 16i)), 272, 
 
 282. 
 Young V. West. Un. Tel. Co. (66 N. 
 
 Y. 163), 259. 
 YoungMood v. Sexton (32 Mich. 
 
 406; 20 Am. Eep. 654), 273, 276, 
 
 282, 283, 286. 
 
 z. 
 
 Zabriskie v. Hackensack, etc., R. B. 
 
 Co. (17 N.J. Eq. 178), 574. 
 Zell V. Reame (31 Pa. St. 304), 30. 
 Zimmerman v. Union Caual Co. (1 
 
 Watts & S. 846), 400. 
 Zumhoff V. State (4 Greene, Iowa, 
 
 526), 304. 
 
CONSTITUTIONAL LIMITATIONS 
 
 POLICE POWER IN THE UNITED STATES 
 
 PART I. 
 
 CHAPTBE I. 
 
 LIMITATIONS UPON THE POLICE POWER IN THE UNITED 
 
 STATES. 
 
 Secttoit 1. Police power, defined and explained. 
 
 2. The legal limitation3 upon police power. 
 
 3. Construction of constitutional limitations. 
 
 4. The principal constitutional limitations. 
 
 5. Table of private rights. 
 
 § 1. Police power — ^Defined and explained. — The private 
 rights of the individual, apart from a few statutory rights, 
 which when compared with the whole body of private rights 
 are insignificant in number, do not rest upon the mandate 
 of municipal law as a source. They belong to man in a 
 state of nature ; they are natural rights, rights recognized 
 and existing in the law of reason. But the individual, in a 
 state of nature, finds in the enjoyment of his own rights 
 that he transgresses the rights of others. Nature wars upon 
 nature, when subjected to no spiritual or moral restraint. 
 The object of government is to impose that degree of 
 j restraint upon human actions, which is necessary to the 
 /uniform and reasonable conservation and enjoyment of 
 private rights. Government and municipal law protect 
 and develop, rather than create, private rights. The 
 
 0) § 1 
 
2 LIMITATIONS UPON THE POLICE POWER. 
 
 conservation of private rights is attained by the im- 
 position of a wholesome restraint upon their exercise, 
 such a restraint as will prevent the infliction of injury 
 upon others in the enjoyment of them ; it involves a provis- 
 ion of means for enforcing the legal maxim, which enunciate* 
 the fundamental rule of both the human and the natural law, 
 sic utere tuo, ut alienum non loedas. The power of the gov-^ 
 ernment to impose this restraint is called Police Power, j 
 By this "general police power of the State, persons and 
 property are subjected to all kinds of restraint^ and bur- 
 dens, in order to secure the general comfort, health and 
 prosperity of the State ; of the perfect right in the legisla- 
 ture to do which no question ever was or upon acknowl- 
 edged general principles ever can be made, so far as natural 
 persons are concerned."^ Blackstone defines the police 
 power to be " 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 gen- 
 eral behavior to the rules of propriety, good neighborhood 
 and good manners, and to be decent, industrious and inof- 
 fensive in their respective stations."^ Judge Cooley says: ^ 
 " 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 
 offenses against the State, but also to establish for the in- * 
 tercourse of citizens with citizens those rules of good man- 
 ners 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 it is reasonably consistent 
 with a like enjoyment of rights by others." * The conti- 
 
 1 Redfield, C. J., in Thorpe v. Butland, etc., E. R.,27 Vt. 140. 
 
 2 4 Bl. Com. 162. 
 
 ' Cooley, Const. Lim. 572. 
 
 » Tlie following other definitions present the same ideas in different 
 
 language, but they are added, ex abundante cautela, with the hope that 
 
 they may assist in reaching a clear conception of the scope of the police 
 
 power. "The police power of a State is co-extensive with self-protee- 
 
 § 1 
 
POLICE POWER, DEFINED AND EXPLAINED. 
 
 nental jurists include, under the term Police Power, noti 
 only those restraints upon private rights which are imposed/ 
 for the general welfare of all, but also all the governmental] 
 institutions, which are established with public funds for the I 
 better promotion of the public good, and the alleviation of ( 
 private want and suffering.^ Thus they would include the , 
 power of the government to expend the public moneys in | 
 the construction and repair of roads, the establishment of 
 hospitals and asylums and colleges, in short, the power to 
 supplement the results of individual activity with what in- 
 dividual activity can not accomplish. " The governmental 
 
 tion, and is not inaptly termed ' the law of overruling necessity.' It is 
 that inherent and plenary power in the State, which enables it to prohibit 
 all things hurtful to the comfort and welfare of society." Lakeview 
 V. Rose Hill Cemetery, 70 111. 192. " With the legislature the maxim 
 of \a,yf ' solus populi suprema lex,^ should not be disregarded. It is the 
 great principle on which the statutes for the security of the people are 
 based. It is the foundation of criminal law, in all governments of civil- 
 ized countries, and of other laws conducive to the safety and consequent 
 happiness of the people. This power has always been exercised, and its 
 existence cannot be denied. How far the provisions of the legislature 
 can extend, is always submitted to its discretion, provided its acts do not 
 go beyond the great principle of securing the public safety, and its duty to 
 provide for the public safety, within well defined limits and with discre- 
 tion, is imperative. » * * AH laws for the protection of lives, limbs, 
 health and quiet of the person, and for the security of all property within 
 the State, fall within this general power of government." State B.Noyes,. 
 47 Me. 189. "There is, in short, no end to these illustrations, when w& 
 look critically into the police of large cities. One in any degree familiar 
 with this subject would never question a right depending upon invinci- 
 ble necessity, in order to the maintenance of any show of administrative 
 authority among the class of persons with vyhich the city police have to do. 
 To such men any doubt of the right to subject persons and property to 
 such regulations as public security and health may require, regardless of 
 mere private convenience, looks like mere badinage. They can scarcely 
 regard the objector as altogether serious. And, generally, these doubts 
 In regard to the extent of governmental authority come from those who 
 have had small experience." Hale v. Lawrence, I Zab. 714; 3 Zab. 690. 
 While it is true that a small experience in such matters is calculated' to 
 increase one's doubts in respect to the exercise of the power, a large and 
 practical experience Is likely to make one recklessly disregardf ul of pri- 
 vate rights and constitutional limitations. 
 
 § 1 
 
4 LIMITATIONS UPON THE POLICE POWER. 
 
 provision for the public security and welfare in its daily 
 necessities, that provision which establishes the needful and 
 necessary, and therefore appears as a bidding and forbid- 
 ding power of the State, is the scope and character of the 
 police." ^ But in the present connection, as may be gath- 
 ered from the American definitions heretofore given, the 
 term must be confined to the imposition of restraints and bur- 
 dens upon persons and property. The power of the gov- 
 ernment to embark in enterprises of public charity and 
 benefit can only be limited by the restrictions upon the 
 power of taxation, and to that extent alone can these sub- 
 jects in American law be said to fall within the police power 
 of the State. 
 
 It is to be observed, therefore, that the police power of 
 the government, as understood in the constitutional law of 
 the United States, is simply the power of the government 
 to establish provisions for the enforcement of the common 
 as well as civil-law maxim, sic utere tuo, ut alienum non 
 Icedas. " This police power of the State extends to the pro- 
 tection 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 loedas, 
 it being of universal application, it must of course be within 
 the range of legislative action to define the mode and man- 
 ner in which every one may so use his own as not to injure, 
 others."* Any law which goes beyond that principle, 
 which undertakes to abolish rights, the exercise of which 
 does not involve an infringement of the rights of others, 
 or to limit the exercise of rights beyond what is necessary 
 to provide for the public welfare and the general security, 
 cannot be included in the police power of the. government. 
 It is a governmental usurpation, and violates the principles 
 
 1 Bluntschll, Mod. Stat., vol. 11., p. 276. See v. Mohl's comprehen- 
 sive discassion of the scope of Police Power in the introductory chapter 
 to his PolSelwissenschaft. 
 
 2 Thorpe ©."Rutland, etc., E. E., 27 Vt 150. 
 
 § 1 
 
THE LEGAL LIMITATIONS UPON POLICE POWER. 5 
 
 of abstract justice, as they have been developed under our 
 republican institutions. 
 
 § 2. The legal limitations upon police power. — 
 
 This is the subject of the present work, viz. : The legal 
 limitations upon the police power of American governments, 
 national and State. Where can these limitations be found^ 
 and in what do they consist? The legislature is clearly the 
 department of the government which can and does exercise 
 the police power, and consequently in the limitations upon 
 the legislative power, are to be found the limitations of the 
 police power. Whether there be other limitations or not, 
 the most important and the most clearly defined are to be 
 found in the national and State constitutions. Whenever 
 an act of the legislature contravenes a constitutional pro- 
 vision, it is void, and it is the duty of the courts so to de- 
 clare it, and refuse to enforce it. But is it in the power of 
 the judiciary to declare an act of the legislature void, 
 because it violates some abstract rule of justice, when there 
 is no constitutional prohibition? Several eminent judges 
 have more or less strongly insisted upon the doctrine that 
 the authority of the legislature is not absolute in those 
 cases in which the constitution fails to impose a restriction; 
 that in no case can a law be valid, which violates the funda- 
 mental principles of free government, and infringes upon 
 the original rights of men, and some of these judges claim 
 for the judiciary, the power to annul such an enactment, 
 and to forbid its enforcement.^ Judge Chase expresses 
 himself as follows : " I cannot subscribe to the omnipotence 
 of a State legislature, or that it is absolute and without 
 control, although its authority should not be expressly re- 
 
 1 Judge Chase in Calder v. Bull, 3 Dall. 386; Judge Story in Wilkinson 
 t>. Leland, 2 Pet 657; Judge Bronson in Taylor v. Porter, 4 Hill, 145; 
 Judge Strong in People v. Toynbec, 20 Barb. 218; Judge Hosmer in 
 Goshen v. Storlington,. 4 Conn. 259 ; Chancellor Walworth in Varick v. 
 Smith, 5 Paige, 137; Judge Spaulding in Griffith v. Commissioners, 20 
 Ohio, 609 ; Ch. J. Parker, in Eoss' Case, 2 Pick. 169. 
 
 § 2 
 
6 LIMITATIONS UPON THE POLICE POWEE. 
 
 strained by the constitution or fundamental law of the State. 
 The people of the United States erected their constitutions 
 or forms of government, to establish justice, to promote 
 the general welfare, to secure the blessings of liberty, and 
 to protect their persons and property from violence. The 
 purposes for which we enter into society, will determine 
 the nature and terms of the social compact; and as they 
 are the foundation of the legislative power, they will decide 
 what are the proper objects of it. The nature and ends of 
 of legislative power will limit the exercise of it. This 
 fundamental principle flows from the very nature of our 
 free republican governments, that no man should be com- 
 pelled to do what the laws do not require, nor to refrain 
 from acts which the laws permit. There are acts which the 
 Federal or State legislature cannot do, without exceeding 
 their authority. There are certain vital principles in our 
 free republican governments, which will determine and 
 overrule an apparent and flagrant abuse of legislative 
 power; as to authorize manifest injustice by positive law, 
 or to take away that security for personal liberty or private 
 property for the protection whereof the government was 
 established. An act of the legislature (for I cannot call-it 
 a law), contrary to the great first principles of the social 
 compact, cannot be considered a rightful exercise of legis- 
 lative authority. The obligation of a law in governments, 
 established on express compact and on republican pr>B(ci- 
 ples, must be determined by the nature of the power on 
 which it is founded. * • * The legislature may enjoin, 
 permit, forbid and punish; they may declai-e new crimes, 
 and establish rules of conduct for all its citizens in future 
 cases; they may command what is right, and prohibit what 
 is wrong, but they cannot change innocence into guilt, or 
 punish innocence as a crime ; or violate the right of an 
 antecedent lawful private contract, or the right of private 
 property. To maintain that our Federal or State legislar- 
 ture possesses such powers, if they had not been expressly 
 § 2 
 
THE LEGAL LIMITATIONS UPON POLICE POWER. 7 
 
 restrained, would in my opinion be a political heresy, al- 
 together inadmissible in our free republican governments." 
 But notwithstanding the opinions of these eminently respect- 
 able judges, the current of authority, as well as substan- 
 tial constitutional reasoning, is decidedly opposed to the 
 doctrine. It may now be considered as an established 
 principle of American law that the courts, iu the perform- 
 ance of their duty to confine the legislative department 
 within the constitutional limits of its power, cannot 
 nullify and avoid a law, simply because it conflicts with the 
 judicial notions of natural right or morality, or abstract 
 justice." ^ 
 
 1 " The question whether the act under conslderatlonis a valid exercise 
 of legislative power is to be determined solely by reference to constitu- 
 tional restraints and prohibitions. The legislative power has no other 
 limitation. If an act should stand when brought to the test of the con- 
 stitution, the question of its validity is at an end, and neither the execu- 
 tive nor judicial department of the government can refuse to reco^ize 
 or enforce it. The theory, that laws may be declared void when deemed 
 to be opposed to natural justice and equity, although they do not violate 
 any constitutional provision, has some support in the dtcta of learned 
 judges, but has not been approved, so far as we know, by any authoritative 
 adjudication, and is repudiated by numerous authorities. Indeed, under 
 the broad and liberal interpretation now given to constitutional guaran- 
 ties, there can be no violation of fundamental rights, which will not fall 
 within the express or implied prohibition and restraints of the constitution 
 and it is unnecessary to seek for principles outside of the constitution, 
 under which legislation may be condemned." Bertholt v. O'Eeilly, 71 
 N. y. 609. " Defendant Insists that we should pronounce the law now in 
 question to be void, on the ground that it is opposed to natural right and 
 the fundamental principles of civil liberty. We are by no means prepared 
 to accede to the doctrine involved in this claim, that under a written con- 
 stitution like ours, in which the three great departments of government, 
 the executive, legislative and judicial, are confided to distinct bodies of 
 magistracy, the powers of each of which are expressly confined to its own 
 proper department, and in which the powers of each are unlimited, in its 
 appropriate sphere, except so far as they are abridged by the constitution 
 itself, it is competent for the judicial department to deprive the legisla- 
 ture of powers which they are not restricted from exercising by that 
 instrument. It would seem to be sufficient to prevent us from thus inter- 
 posing, that the power exercised by the legislature is properly legislative 
 in its character, which is unquestionably the case with respect to the law 
 
 § 2 
 
8 LIMITATIONS UPON THE POLICE POWER. 
 
 While it is true that the courts have no authority to 
 override the legislative judgment on the question of expedi- 
 ency or abstract justice in the enactment of a law, and if a 
 case, arising under the statute, should come up before 
 them for adjudication, they are obliged by their oflScial oaths 
 to enforce the statute notwithstanding it offends the com- 
 monest principles of justice, it is nevertheless true that a 
 law which does not conform to the fundamental principles of 
 free government and natural justice and morality, will prove 
 ineffectual and will become a dead letter. No law can be 
 enforced, particularly in a country governed directly by the 
 popular will, which does not receive the moral and active 
 support of a large majority of the people ; and a law, which 
 violates reason and offends against the prevalent conceptions 
 of right and justice, will be deprived of the power neces- 
 sary to secure its enforcement. The passage of such stat- 
 utes, however beneficent may be the immediate object 
 of them, will not only fail of attaining the particular end 
 in view, but it tends on the one hand to create in those 
 who are likely to violate them a contempt for the whole 
 body of restrictive laws, and on the other hand, to inspire 
 in those, from whom the necessary moral support is to be 
 expected, a fear and distrust, sometimes hate, of legal 
 restraint which is very destructive of their practical value. 
 And such is particularly the case with police regula- 
 tions. When confined within their proper limits, viz. :' 
 to compel every one to so use his own and so conduct him- 
 self as not to injure his neighbor or infringe upon his rights, 
 
 we have been considering, and that the consideration contains no restric- 
 tions upon its exercise in regard to the subject of it." State v. Wheeler, 
 25 Conn. 290. See, also, Butler v. Palmer, 1 Hill, 324 ; Cochran v. Van 
 Surley, 20 Wend. 380 ; Grant v. Courten, 24 Barb. 232 ; Benson v. Mayor, 
 24 Barb. 248, 252; Wynehamer ». People, 13 N. Y. 390; Town of Guilford 
 V. Supervisors, 13 N. Y. 143; Sharpless v. Mayor, 21 Pa. St. 147; Bennett 
 V. Boggs, 1 Bald. 74; Doe v. Douglass, SBlackf. 10; State ». Clottu, 33 
 Ind. 409 ; Stein v. Mayor, 24 Ala. 614 ; Dorman v. State, 34 Ala. 232 ; Bos- 
 ton V. Cummings, 16 Ga. 102; Hamilton v. St. Louis Co., 16 Mo. 23. 
 § 2 
 
THE LEGAL LIMITATIONS UPON POLICE POWER. 9 
 
 police regulations should, and usually would, receive in a 
 reasonably healthy community the enthusiastic support of 
 the entire population. There have been, however, so many 
 unjustifiable limitations imposed upon private rights and 
 personal liberty, sumptuary laws, and laws for the correc- 
 tion of personal vice, laws which have in view the moral 
 and religious elevation of the individual against his will, and 
 sometimes in opposition to the dictates of his conscience, 
 (all of which objects, however beneficent they may be, do 
 not come within the sphere of the governmental activity), 
 that the modern world looks with distrust upon any exer- 
 cise of police power ; and however justifiable, reasonable > 
 and necessary to the general welfare may be a particular 
 police regulation, it often meets with a determined opposi- 
 tion, and oftener with a death-dealing apathy on the part 
 of those who are usually law-abiding citizens and active 
 supporters of the law. Goethe makes Mephistopheles give 
 the cause of this opposition in the following expressive 
 language: — 
 
 " Ich weisz mich trefflich mit der Polizei 
 Doch mit dem Blutbann schlecht mich abzufinden," 
 
 which, roughly translated, means " I can get along very 
 well with the police, but badly with the hereditary mono- 
 poly. ' ' ( Blutbann . ) ^ 
 
 But these are considerations, which can alone be addressed 
 to the legislative department of the government. If an 
 unwise law has been enacted, which does not infringe upon 
 any constitutional limitation, the only remedy is an appeal 
 to the people directly, or through their representatives, to 
 repeal the law. The courts have no authority to interpose. 
 
 • Beference is here made to those numerous monopolies, created in 
 various industries for the benefit of certain powerful families and made 
 hereditary, which proved beneficial to their possessors, while they were 
 correspondingly oppressive to the poorer classes. This was one of 
 the crying evils of the old French civilization which led up to the Eevolu- 
 tion. 
 
 § 2 
 
10 LIMITATIONS UPOK THE POLICE POWER. 
 
 § 3. Construction of constitutional limitations. — 
 
 But although these fundamental principles of natural right 
 and justice cannot, in themselves, furnish any legal restric- 
 tions upon the governmental exercise of police power, in 
 the absence of express or implied constitutional limita- 
 tions, yet they play an important part in determining the 
 exact scope and extent of the constitutional limitations. 
 Wherever by reasonable construction the constitutional 
 limitation can be made to avoid an unrighteous exercise of 
 police power, that construction will be upheld, notwith- 
 standing the strict letter of the constitution does not pro- 
 hibit the exercise of such a power. The unwritten law of 
 this country is in the main against the exercise of police 
 power, and the restrictions and burdens, imposed upon per- 
 sons and private property by police regulations, are jeal- 
 ously watched and scrutinized. " The main guaranty of 
 private rights against unjust legislation is found in that 
 memorable clause in the bill of rights, that no man shall be 
 deprived of life, liberty or property, without due process 
 of law. This guaranty is not construed in any narrow or 
 technical sense. The right to life may be invaded without 
 its destruction. One may be deprived of his liberty in a 
 constitutional sense without putting his person in confine- 
 ment. Property may be taken without manual interfer- 
 ence therewith, or its physical destruction. The right to 
 life includes the right of the individual to his body in its 
 completeness and without its dismemberment, the right to 
 liberty, the right to exercise his faculties and to follow a 
 lawful avocation for the support of life, the right of prop- 
 erty, the right to acquire property and enjoy it in any 
 way consistent with the equal rights of others and the just 
 exactions and demands of the State." ^ In searchinor for 
 
 O 
 
 constitutional restrictions upon police power, not only may 
 resort be had to those plain, exact and explicit provisions 
 
 I Bertholf v. O'Reilly, 74 N. Y. 509. 
 § 3 
 
CONSTRUCTION OF CONSTITUTIONAL LIMITATIONS. 11 
 
 -of the constitution, but those general clauses, which have 
 acquired the name of " glittering generalities," may also 
 be appealed to as containing the germ of constitutional 
 limitation, at least in those cases in which there is a clearly 
 unjustifiable violation of private right. Thus, almost all of 
 the State constitutions have, incorporated in their bills of 
 rights, the clause of the American Declaration of Independ- 
 ence that all men " are endowed by their Creator with cer- 
 tain inalienable rights; that among these are life, liberty 
 and the pursuit of happiness." If, for example, a law 
 should be enacted, which prohibited the prosecution of 
 some employment which did not involve the infliction of 
 injury upon others, or which restricts the liberty of the 
 citizen unnecessarily, and in such a manner that it did 
 not violate any specific provision of the constitution, it 
 may be held invalid, because in the one case it interfered 
 with the inalienable right of property, and in the other case 
 it infringed upon the natural right to life and liberty. 
 "There is living power enough in those abstractions of 
 the State constitutions, which have heretofore been regarded 
 as mere ' glittering generalities,' to enable the courts to en- 
 force them against the enactments of the Legislature, and 
 thus declare that all men are not only created free and equal, 
 but remain so, and may enjoy life and pursue happiness 
 in their own way, provided they do not interfere with the 
 freedom of other men in the pursuit of the same objects." ^ 
 This is a novel doctrine, and one which perhaps is as liable 
 
 1 Judge Eedfleld's annotation to People v. Turner, 65 111. 280; 10 Am. 
 Iiaw Eeg. (n. s.) 372. At a very early day, before the adoption of the 
 present constitution of the United States, it was judicially decided in 
 Massachusetts that slavery was abolished in that State by a provision of 
 the State constitution, which declared that " all men are born free and 
 equal, and have certain natural, essential and inalienable rights," etc. 
 This clause was held to be inconsistent with the status of slavery, and 
 therefore impliedly emancipated every slave in Massachusetts. See 
 Draper, Civil War in America, vol. I., p. 317; Bancroft, Hist, of U. S- 
 vol. X., p. 365; Cooley Principles of Const., p. 213. 
 
 § 3 
 
12 LIMITATIONS UPON THE POLICE POWER. 
 
 to give rise to dangerous encroachments by the judiciary 
 upon the sphere and powers of the legislature, as the doc-' 
 trine that a law is invalid which violates abstract principles 
 of justice. If it be recognized as an established rule of 
 constitutional law, it must certainly be confined in its appli- 
 cation to clear cases of natural injustice. Wherever there 
 is any doubt as to the legitimate character of legislation, it 
 should be solved in favor of the power of the Legislature 
 to make the enactment. In all cases the courts should 
 proceed with caution in the enforcement of this most elas- 
 tic constitutional provision. 
 
 While we find a tendency in one direction to stretch the 
 constitutional restrictions over a great many cases of legisla- 
 tion, which would not fall within the strict letter of the con- 
 stitution, in order that due force and effect may be given to 
 the fundamental principles of free government ; on the other 
 hand , where the letter of the constitution would prohibit 
 police regulations, which by all the principles of constitu- 
 tional government have been recognized as beneficent and 
 permissible restrictions upon the individual liberty of action^ 
 such regulations will be upheld by the courts, on the ground 
 that the framers of the constitution could not possibly have 
 intended to deprive the government of so salutary a power, 
 and hence the spirit of the constitution permits such legis- 
 lation, although a strict construction of the letter may pro- 
 hibit. But in such a case the regulation must fall within the 
 enforcement of the legal maxim, sicutere tuo, utalienum non 
 Icedas. " Powers 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 satisfac- 
 tory 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, 
 § 3 
 
THE PRINCIPAL CONSTITUTIONAL LIMITATIONS. 13 
 
 notwithstanding the language of the prohibition would 
 otherwise include it." ^ And in all such cases it is the duty 
 of the courts to determine whether the regulation is a 
 reasonable exercise of a power, which is generally pro- 
 hibited by the constitution. "It is the province of the 
 law-making power to determine when the exigency exists 
 for calling into exercise the police power of the State, but 
 what are the subjects of its exercise is clearly a judicial 
 question." '■^ 
 
 § 4. The principal constitutional limitations. — The 
 principal constitutional limitations, which are designed to 
 protect private rights against the arbitrary exercise of gov- 
 ernmental power, and which therefore operate to limit and 
 restrain the exercise of police power, are the following : — 
 
 1. No bill of attainder or ex post facto law shall be passed 
 by the United States,* or by the States.* 
 
 2. No State shall pass any law impairing the obligatibi^ 
 of a contract." 
 
 3. Neither slavery nor involuntary servitude, except as a 
 punishment for crime whereof the party shall have been 
 duly convicted, shall exist within the United States, or any 
 place subject to their jurisdiction.® 
 
 4. The right of the people to be secure in their persons, 
 houses, papers, and effects, against unreasonable searches 
 and seizures, shall not be violated; and no warrants shall 
 issue but upon probable cause, supported by oath or affirm- 
 ation, and particularly describing the place to be searched, 
 and the person or thing to be seized.' 
 
 I Christiancy, J., in People v. Jackson and Mich. Flank Bead Co., 9 
 Mich. 285. 
 
 « Lake View v. Rose HiU Cemetery, 70 111. 192. 
 
 » tr. S. Const., art. I., § 9. -^' 
 
 « U. S. Const., art. I., § 10. 
 
 5 U. S. Const., art. I., § 10. 
 
 • U. S. Const. Amend., Art. ifit KT^nTT: 
 
 ' U. S. Const. Amend., art. IV. 
 
 §4 
 
14 LIMITATIONS UPON THE POLICE POWER. 
 
 5. No soldier shall, in time of peace, be quartered in any 
 house without the consent of the owner ; nor in time of 
 war, but in a manner to be prescribed by law.^ 
 
 6. The right of the people to keep and bear arms shall 
 not be infringed.^ 
 
 7. Congress shall make no law respecting an establish- 
 ment of religion or prohibiting the free exercise thereof; 
 or abridging the freedom of speech, or of the press, or the 
 right of the people, peaceably to assemble, and to petition 
 the government for a redress of grievances.^ 
 
 8. No person shall be held to answer for a capital, or oth- 
 erwise infamous crime, unless on a presentment or indict- 
 ment of a grand jury, except in cases arising in the laud or 
 naval forces, or in the militia, when in actual service in 
 time of war or public danger ; nor shall any person be sub- 
 jeqt for the same offense to be twice put in jeopardy of life 
 or limb ; nor shall be compelled in any criminal case to be 
 a witness against himself, nor be deprived of life, liberty, 
 or property, without due process of law; nor shall private 
 property be taken 'for public use without just compensa- 
 tion.* 
 
 9. In all criminal prosecutions, the accused shall enjoy the 
 right to a speedy and public trial, by an impartial jury of 
 the State and district wherein the crime shall have been 
 previously ascertained by law, and to be informed of th« 
 nature and cause of the accusation; to be confronted with 
 the witnesses against him ; to have compulsory process for 
 obtaining witnesses in his favor, and to have the assistance 
 of counsel for his defense." 
 
 ' IT. S. Const. Amend., art. III. 
 2 U.S. Const. Amend., art. 11, 
 ' U. S. Const. Amend., art. I. 
 * U. S. Const. Amend., art.V. 
 6 U. S. Const. Amend., art. Vt- 
 § 4 
 
THE PRINCIPAL CONSTITUTIONAL LIMITATIONS. 15 
 
 10. Excessive bail shall not be required, nor excessive 
 fines imposed, nor cruel and unusual punishment inflicted.^ 
 
 11. The privilege of the writ of habeas corpus shall not 
 be suspended, unless when in cases of rebellion or invasion 
 the public safety may require it.^ 
 
 12. No State shall make or enforce any law which shall 
 abridge the privilges or immunities of citizens of the United 
 States, nor shall any State deprive any person of life, lib- 
 erty or property, without due process of law ; nor deny to 
 any person within its jurisdiction the equal protection of 
 the laws.* 
 
 13. The right of the citizens of the United States to vole 
 shall not be denied or abridged by the United States, or by 
 any State, on account of race, color, or previous condition 
 of servitude.* 
 
 Here are given only the provisions of the Federal consti- 
 tution, but they either control the action of the States, as 
 well as of the United States, or similar provisions have 
 been incorporated into the bills of rights of the different 
 State constitutions, so that the foregoing may be considered 
 to be the chief limitations in the United States upon legis- 
 lative interference with natural rights. Where the States 
 are not expressly named in connection with any clause of 
 the United States constitution, the provision is construed 
 by the best authorities to apply solely to the United States.* 
 But all of these limitations have been repeated in the State 
 bill of rights, with some little but unimportant change of 
 phraseology, together with other more minute limitations. 
 
 1 U. S. Const. Amend., art. "VIII. 
 
 ' U. S. Const., art. I., § 9. 
 
 ' U. S. Const., Amend, art. XIV. 
 
 * U. S. Const. Amend., art. XV. 
 
 * Barron «. Baltimore, 7 Pet. 243; Livingston's Lessee is. Moore, 76. 
 469; Fox V. Ohio, 5 How. 410; Smitli v. Maryland, 18 How. 71; Parvear ». 
 Com., 5 Wall. 475; Twitchell v. Com., 7 Wall. 321 ; Com. v. Hitchings, 6 
 Gray, 482; Bigelowf. Bigelow, 120 Mass. 300, etc. 
 
 § 4 
 
16 LIMITATIONS UPON THE POLICE POWER. 
 
 § 5. Table of private rights. — Police power, being the 
 imposition of restrictions and burdens ^pou the natural and 
 other private rights of individuals, it becomes necessary to 
 tabulate and classify these rights, and in presenting for dis- 
 cussion the field and scope for the exercise of police power, 
 the subject-matter will be subdivided according to the 
 rights upon which the restrictions and burdens are imposed. 
 The following is 
 
 THE TABLE OP PBIVATB EIGHTS. 
 
 (a.) Personal rights. 
 
 1. Personal security — Life. 
 
 — Limb. 
 
 — Health. 
 
 — Eeputation. 
 
 2. Personal liberty. 
 
 3. Private property — Eeal. 
 
 — Personal, 
 (i. ) Relative Rights 
 
 arising between 1. Husband and wife. 
 
 2. Parent and child. 
 
 3. Guardian and ward. 
 
 4. Master and servant, 
 (c.) Statutory Eights 
 
 embracing all those rights which rest upon leg- 
 islative grant. 
 § 5 
 
CHAPTEE 11. 
 
 POLICE REGULATION OP PERSONAL SECURITY. 
 
 Section 10. Security to life. 
 
 11. Capital punishment. 
 
 12. Security to limb and body. 
 12a. Corporal punishment. 
 
 126. Personal chastisement in certain relations. 
 
 13. Battery in seU-defense. 
 
 14. Abortion. 
 
 15. Compulsory submission to surgical and medical treatment. 
 
 16. Security to health — Legalized nuisances. 
 
 17. Security to reputation — Privileged communications. 
 17a. Privilege of legislators. 
 
 17b. Privilege in judicial proceedings. 
 
 17c. Criticism of officers and candidates for office. 
 
 17d. Publications through the press. 
 
 18. Security to reputation — Malicious prosecution. 
 18a. Advice of counsel — How far a defense. 
 
 § 10. Security to Ijife. — The legal guaranty of the pro- 
 tection of life is the highest possession of man. It consti- 
 tutes the condition precedent to the enjoyment of all other 
 rights. A man's life includes all that is certain and real in 
 human experience, and since its extinction means the de- 
 privation of all temporal rights, the loss of his own person- 
 ality, so far as this world is concerned, the cause or motive 
 for its destruction must be very urgent, and of the highest 
 consideration, in order to constitute a sufficient justification. 
 If there be any valid ground of justification in the taking of 
 human life, it can only rest upon its necessity as a means of 
 protection to the community against the perpetration of 
 dangerous and terrible crimes by the person whose life is 
 to be forfeited. When a person commits a crime, that is, 
 trespasses upon the rights of his fellow-men, he subjects his 
 own rights to the possibility of forfeiture, including even 
 
 2 § 5 (17) 
 
18 POLICE REGULATION OF PERSONAL SECURITY. 
 
 the forfeiture of life itself; and the only consideration, in- 
 dependently of constitutional limitations, being, whether the 
 given forfeiture, by exerting a deterrent influence, will fur- 
 nish the necessary protection against future infringements 
 of the same rights. That is, of course, only a question of 
 expedience addressed to the wise discretion of legislators, 
 and does not concern the courts. Except as a punishment 
 for crime, no man's life can be destroyed, not even with 
 his consent. Suicide, itself, is held to be a crime, and one 
 who assists another in the commission of suicide is himself 
 guilty of a crime.^ This rule of the common law is in 
 apparent contradiction with the maxim of the common 
 law, which in every other case finds ready acquiescence, 
 viz. : an injury (*. e. a legal wrong) is never committed 
 against one who voluntarily accepts it, volenti non fit in- 
 juria. If a crime be in every case a trespass upon 
 the rights of others^ suicide is not a crime, and 
 it would not be a crime to assist one "to shuffle 
 off this mortal coil." But the dread of the uncertainties 
 of the life beyond the grave so generally " makes us rather 
 bear those ills we have, than fly to others that we know not 
 of," that we instinctively consider suicide to be the act of a 
 deranged mind ; and on the hypothesis that no sane man ever 
 commits suicide the state may very properly interfere to 
 prevent self-destruction, and to punish those who have 
 given aid to the unfortunate man in his attack upon him- 
 self, or who have with his consent, or by his direction, 
 killed a human being. But if we hold suicide to be in any 
 case the act of a sane man, I cannot see on what legal 
 grounds he can be prevented from taking his own life. It 
 would be absurd to speak of a man being under a legal ob- 
 ligation to society^ live as long as possible. The immor- 
 ality of the act does not make it a crime,* and since it is 
 
 1 4 Bl. Com. 188, 189. 
 
 2 See post, § 68. 
 » See post, § 68. 
 
 § 10 
 
CAPITAL PUNISHMENT. 19 
 
 not a trespass upon the rights of any one, it is not an act that 
 the State can prohibit! But even if suicide be declared a 
 crime, the act has carried the criminal beyond the jurisdic- 
 tion of the criminal courts, and consequently no punish- 
 ment could be inflicted on him. The common law in 
 providing that the body of a suicide should be buried at the 
 cross-roads with a stake driven through it, and that his 
 property shall be forfeited to the crown, violated the 
 fundamental principle of constitutional law that no 
 man can be condemned and punished for an offense, ex- 
 cept after a fair trial by a court of competent jurisdiction, in 
 which the accused is given an opportunity to be heard in his 
 own defense. It is somewhat different where one man kills 
 another at the latter' s request. If it be held that the man 
 who makes the request is sane, the killing is no more a 
 crime than if it was done by the unfortunate man himself. 
 But in consideration of the dilEculty in proving the request, 
 and the frequent opportunities for felonious murders the 
 allowance of such deeds would afford, the State can very 
 properly prohibit the killing of one man by another at the 
 latter's request. These considerations would justify this 
 exercise of police power, and in only one case is it supposed 
 that any fair reason may be given for allowing it, and that 
 is, where one is suffering from an incurable and painful 
 disease. If the painful sufferer, with no prospect of a re- 
 covery or even temporary relief from physical agony, in- 
 stead of praying to God for a deliverance, should determine 
 to secure his own release, and to request the aid of a physi- 
 cian in the act, the justification of the act on legal grounds 
 may not be so difBcult. But even in such a case public, if 
 not religious, considerations would justify a prohibition of 
 the homicide. * 
 
 § 11. Capital punishment. — That capital punishment 
 may be imposed for the commission of crimes against the life 
 of another, and crimes against those rights of personal secur- 
 
 § 11 
 
20 POLICE REGULATION OF PERSONAL SECTTEITT. 
 
 ity, which are in the estimation of the generality of mankind 
 as dear as life itself, forexample, arson and rape, seems to ad- 
 mit of no doubt, not even in the realms of reason and natural 
 justice. Certainly there is no constitutional prohibition 
 ao-ainst its infliction for these offenses. These are mala in 
 se, violations of the natural rights of man, and there is in 
 the breast of every human being a natural fear of punish- 
 ment, proportionate to each and every violation of human 
 rights. In the absence of a regularly established society, 
 in a state of nature, the power to inflict this punishment for 
 natural crimes is vested in every individual, since everyone 
 is interested in providing the necessary protection for life. 
 "Whereof," Mr. Blackstone says, "the first murderer, 
 Cain, was so sensible, that we find him expressing his ap- 
 prehensions, that whoever shovld find him would slay him." i 
 In organized society, a supreme power being established, 
 which is able and is expressly designed to provide for the 
 public security, the government succeeds to this natural right 
 of the individual. * ' In a state of society this right is trans- 
 ferred from individuals to the sovereign power, whereby 
 men are prevented from being judges in their own causes, 
 which is one of the evils that civil government was intended to 
 remedy."^ These cases of capital punishment are readily jus- 
 tified, but it would seem to be a matter of very grave doubt, 
 certainly on rational grounds, whether the legislature hpd 
 the power to provide capital punishment for the commission 
 of a crime which is only a malum prohibitum, an act which 
 by the law of nature is not a violation of human rights. 
 But whatever may be the final settlement of this question, 
 by the common-law capital punishment was inflicted for 
 numerous crimes of very different characters and grades of 
 heinousness. Says Blackstone: " It is a melancholy truth, 
 that among the variety of actions which men are daily liable 
 
 » i Bi. Com. 8. 
 2 i Bl, Com. 8. 
 
 § 11 
 
CAPITAL PUNISHMENT. 21 
 
 to commit, no less than a hundred and sixty have been de- 
 clared by act of Parliament to be felonies without benefit of 
 clergy ; or in other words, to be worthy of instant death." ^ 
 Sir Matthew Hale justifies this practice of inflicting capital 
 punishment for crimes of human institution in the follow- 
 ing language: "When offenses grow enormous,. frequent 
 and dangerous to a kingdom or state, destructive or highly 
 pernicious to civil societies, and to the great insecurity and 
 danger of the kingdom or its inhabitants, severe punishment 
 and even death itself is necessary to be annexed to laws in 
 many cases by the prudence of law-givers." ^ 
 
 It may now be considered as a settled doctrine that, in 
 the absence of an express constitutional prohibition, the in- 
 fliction of capital punishment rests entirely in the discretion 
 of the legislature. The only constitutional limitation 
 which can bear upon the subject under discussion, is that 
 found in both the national and State constitutions, which 
 prohibits the imposition of " cruel and unusual punish- 
 ments." ^ Capital punishment in itself is not " cruel," 
 but the mode of its infliction may be " cruel and unusual," 
 and hence contravene this constitutional provision. Thus, 
 for example, would be those cruel punishments of colonial 
 times and of the common law, such as burning at the stake, 
 breaking on the wheel, putting to the rack, and the like. 
 In the present temper of public opinion, these would un- 
 doubtedly be considered " cruel and unusual punishments," 
 and therefore, forbidden by the constitution.* But would 
 the infliction of capital punishment for offenses, not involv- 
 ing the violation of the right to life and personal security, 
 be such a "cruel and unusual" punishment, as that it 
 would be held to be forbidden by this constitutional pro- 
 vision. It would seem to me that the imposition of the 
 
 » i Bl. Com. 18. 
 
 2 4 Bl. Com. 9. 
 
 ' U. S. Const. Amend., art. 8. 
 
 * Done V. People, 5 Park. 364. 
 
 § 11 
 
22 POLICE REGULATION OF PERSONAL 8ECURITT. 
 
 death penalty for the violation of the revenue laws, i.e., 
 smuggling, or the illicit manufacture of liquors, or even for 
 larceny or embezzlement, would properly be considered as 
 prohibited by this provision as being " cruel and unusual." 
 But if such a construction prevailed, it would be difficult to 
 determine the limitations to the legislative discretion. 
 
 There has been so little litigation over this provision of 
 our constitutions, that it is not an easy matter to say what 
 is meant by the clause. Judge Cooley says : " Probably 
 any punishment declared by statute for any offense, which 
 was punished in the same way at common law, could not be 
 regarded as cruel and unusual in the constitutional sense. 
 And probably any new statutory offense may be punished 
 to the extent and in the mode permitted by the common law 
 for offenses of a similar nature." ^ Capital punishment can 
 be inflicted, in organized society, only under the warrant of 
 a court of Justice, having the requisite jurisdiction, and it 
 must be done by the legal officer, whose duty it is to exe- 
 cute the decrees of the court. The sentence of the court 
 must be followed implicitly. The sheriff is not authorized 
 to change the mode of death, without becoming guilty of 
 the crime of felonious homicide.'' 
 
 Section. 12. Security to limb and body — General statement. 
 12a. Corporal punishment. 
 126. Personal chastisement in certain relations. 
 
 § 12. Security to limb and body — General state- 
 ment. — This right is as valuable, and as jealously guarded 
 against violation, as the primary right to life. Not only 
 does it involve protection against actual bodily injuries, 
 but it also includes an immunity from the unsuccessful 
 attempts to inflict bodily injuries, a protection against 
 assaults, as well as batteries. This protection against 
 
 1 Cooley Const. Lim. 403, 404. 
 " 4 Bl. Com. 402-404. 
 
 § 12 
 
COKPORAL PUNISHMENT. 23 
 
 the hostile threats of bodily injury is as essential to 
 one's happiness as immunity from actual battery.^ But 
 however high an estimate may be placed generally upon 
 this right of personal security of limb and body, there are 
 cases in which the needs of society require a sacrifice of the 
 right; usually, however, where the wrongful acts of the 
 person, whose personal security is invaded, have subjected 
 him to the possibility of forfeiture of any right, as a penalty 
 for wrong-doing. 
 
 § 12a. Corporal punishment. — The whipping-post con- 
 stituted at one time a very common instrument of punish- 
 ment, and in the colonial days of this country it ornamented 
 the public square of almost every town. At present cor- 
 poral punishment is believed to be employed only in Dela- 
 ware and Maryland.^ It was much resorted to in England 
 as a punishment for certain classes of infamous crimes. 
 "The general rule of the common law was that the punish- 
 ment of all infamous crimes should be disgraceful ; as the 
 pillory for every species of crimen falsi, as forgery, perjury 
 and other offenses of the same kind. Whipping was more 
 peculiarly appropriated to petit larceny and to crimes which 
 betray a meanness of disposition, and a deep taint of moral 
 •depravity."^ It does seem as if there are crimes so infa- 
 mous in character, and betoken such a hopeless state of 
 moral iniquity, that they can only be controlled and arrested 
 by the degrading punishment of a public whipping. It is now 
 being very generally suggested as the only appropriate pun- 
 ishment for those cowardly creatures, who lay their hands 
 in violence upon their defenseless wives. But public opin- 
 
 1 "Without such security society loses most of its value. Peace and 
 order and domestic happiness, inexpressibly more precious than mere 
 forms of government, cannot be enjoyed without the sense of perfect se- 
 -curity." Gilchrist, J., in Beach «. Hancock, 27 N. H. 223. 
 
 2 In Maryland it has been revived as a punishment for wife beating. 
 * Taylor, Ch. J., in State v. Kearney, 1 Hawks, 63. 
 
 § 12a 
 
24 POLICE REGULATION OF PERSONAL SECURITY. 
 
 ion is still strongly opposed to its infliction in any case. 
 The punishment is so degrading that its infliction leaves the 
 criminal very little chance for reformation, unless he betakes 
 himself to a land, whither the disgrace will not follow him, 
 or be generally known. ^ 
 
 In respect to the constitutional right to impose the 
 penalty of corporal punishment for crime. Judge Cooley- 
 says: "We may well doubt the right to establish 
 the whipping post and the pillory in the States in 
 which they were never recognized as instruments of 
 punishment, or in States whose constitutions, revised 
 since public opinion had banished them, have forbidden 
 cruel and unusual punishment. In such States the public 
 sentiment must be regarded as having condemned them as 
 ' cruel ;' and any punishment, which if ever employed at all 
 has become altogether obsolete, must certainly be looked 
 upon as ' unusual.' " ^ The fact, that this mode of punish- 
 ment has become obsolete, has made it impossible to secure 
 any large number of adjudications on the constitutionality 
 of a statute, which authorized or directed the infliction of 
 corporal punishment. But so far as the courts have passed 
 upon the question, they have decided in favor of its consti- 
 tutionality, and held that whipping was not a " cruel and 
 unusual" punishment.* It has also been recognized as a 
 legitimate power in keepers of prisons and wardens of 
 penitentiaries to administer corporal punishment to refrac- 
 tory prisoners.* But whatever may be the correct view in 
 
 1 "Among all nations of civilized man, from the earliest ages, the Inflic- 
 tion of stripes has been considered more degrading than death Itself." 
 Herber v. State, 7 Texas, 69. 
 
 2 Cooley Const. Llm. *330. 
 
 8 Commonwealth v. Wyatt, 6 Band. 694 ; Foote v. State, 59 Md. 264 
 (for wlfe-beatlng) ; Garcia v. Territory, 1 New Mex. 416. In the last 
 case, the corporal punishment was inflicted for horse stealing. 
 
 ■* Cornell y. State, 6 Lea, 624. This power is exercised generally 
 throughout the country; it is hard to say, to what extent with the direct 
 sanction of law. 
 § 12a 
 
BATTERY IN SELF-DEFENSE, 25 
 
 respect to the constitutionality of laws imposing corporal 
 punishment, this mode of punishment has now become very 
 generally obsolete, and no court would presume to employ 
 it upon the authority of the English common law. A stat- 
 ute would be necessary to revive it.^ 
 
 § 126. Personal chastisement In certain relations. — 
 
 As a natural right, in consequence of the duty imposed 
 upon the husband, parent, guardian and master, it was 
 conceded by the common law that they could inflict cor- 
 poral punishment, respectively, upon the wife, child pupil, 
 ward and apprentice. But as the domestic relations, and 
 the relative rights and duties growing out of them will, 
 receive a more detailed treatment in a subsequent chapter, 
 the reader is referred to that chapter.* 
 
 § 13. Battery in self-defense. — One of the primary 
 restrictions upon individual liberty, growing out of the 
 organization of society and the institution of government, 
 is that which limits or takes away the right to undertake 
 the remedy of one's own wrongs, and provides a remedy in 
 the institution of courts and the appointment of ministerial 
 officers, who hear the complaints of parties, and condemn 
 and punish all infractions of rights. But the natural right 
 of protecting one's own rights can only be taken away justly 
 where the law supplies in its place, and through the ordi- 
 nary judicial channels, a reasonably efi'ective remedy. In 
 most cases, where the remedy should be preventive, in 
 order that it may be effectual, the law is clearly powerless 
 to afford the necessary protection, and hence it recognizes 
 in private persons the right to resist by the use of force 
 all attacks upon their natural rights. The degree of force, 
 
 1 1 Bishop Crim. Law. § 722. Under the national government, both 
 the whipping post and the pillory were abolished by act of Congress in 
 1839. 5 U. S. Stat, at Large, ch. 36, § 5. 
 
 ^ See post, §§ 160, 165, 172. 
 
 § 13 
 
26 POLICE REGULATION OP PERSONAL SECURITY. 
 
 which one is justified in using in defense of one's rights, is 
 determined by the necessities of the case. He is author- 
 ized to use that amount of force which is necessary to re- 
 pel the assailant.i And in defending his rights, as a 
 general rule, he may use whatever force is necessary for 
 their protection, although it extends to the taking of life. 
 But before using force in repelling an assault upon one's 
 person, certainly where the necessary force would involve 
 the taking of life, the law requires the person, who is 
 assailed, to retreat before his assailant, and thus avoid a 
 serious altercation as long as possible. When escape is im- 
 possible, then alone is homicide justifiable. Says Black- 
 stone: " For which reason the law requires that the person, 
 who kills another in his own defense, should have retreated 
 as far as he conveniently or safely can, to avoid the violence 
 of the assault, before he turns upon his assailant ; and that 
 not fictitiously, or in order to watch his opportunity, but 
 from a real tenderness of shedding his brother's blood." ' 
 In the excitement which usually attends such occurrences, 
 it would be requiring too much of the party assailed to ad- 
 just to a nicety the exact amount of force which would be 
 sufficient to furnish him and his rights with the necessary 
 protection, and hence he is required to exercise that degree 
 of care which may be expected from a reasonably prudent 
 man under similar circumstances.^ 
 
 Blackstone also justifies, in cases of extreme necessity, 
 the taking of the life of another, for the preservation of 
 one's own life, where there is no direct attack upon the 
 
 1 Bartlett v. Chnrchhill, 24 Vt. 218; Elliott ». Brown, 2 Wend. 497; 
 Murray V. Commonwealth, 79 Pa. St. 311; Lewis ■». State, 51 Ala. 1; 
 McPherson v. State, 29 Ark. 225 ; HoUoway v. Commonwealth, 11 Bush, 
 344; Erwin v. State, 29 Ohio St. 186; Roach v. People, 77 111. 25; State v. 
 Kennedy, 20 Iowa, 569; State v. Shlppen, 10 Minn. 223. 
 
 2 4 Bl. Com. 217. See People v. Sullivain, 7 N. Y. 396 ; State v. Dixon, 
 75 N. C. 275; Haynes v. State, 17 Ga. 465; Tweedy v. State, 6 Iowa, 433. 
 
 8 Shorter v. People, 2 N. Y. 193; Patterson v. People, 46 Barb. 625. 
 § 13 
 
BATTERY IN SELF-DEFENSE. 27 
 
 personal security, but the circumstances, surrounding the 
 persons, require the death of one of them. He says: 
 "There is one species of homicide se defendendo where 
 the party slain is equally innocent as he who occasions his 
 -death : and yet this homicide is also excusable from the 
 great universal principle of self-preservation, which prompts 
 every man to save his own life preferable to that of another, 
 where one of them must inevitably perish. As, among 
 others, in that case mentioned by Lord Bacon,^ where two 
 persons being shipwrecked, and getting on the same plank, 
 but finding it not able to save them both, one of them 
 thrusts the other from it, whereby he is drowned. He who 
 thus preserves his own life at the expense of another man's 
 is excusable through unavoidable necessity, and the principle 
 of self-defense ; since both remaining on the same weak plank 
 is a mutual, though innocent, attempt upon, and an endanger- 
 ing of each other's life." ^ But, of late, the doctrine has 
 been repudiated by the English Courts in a case, which has 
 created widespread interest. A shipwreck had occurred, 
 and some four or five persons occupied one of the life-boats. 
 They were without provisions, and after enduring the pangs 
 of hunger until they were almost bereft of reason, one per- 
 son, a young boy, was selected by the others to die for their 
 benefit. The boy was killed, and the others subsisted on 
 his flesh and blood, until they were overtaken by a vessel, 
 and carried to England. Their terrible experience was 
 published in the papers, and the ship having been an English 
 vessel, they were arrested on the charge of murder, and 
 convicted, notwithstanding the strong effort of counsel to 
 secure from the court a recognition of the principle advo- 
 cated by Blackstone. A contrary doctrine is laid down by 
 the Court, that no one has a right to take the life of another 
 to save his own, except when it is endangered by the attacks 
 of the other person. Even in cases of the extremest 
 
 ' Elem. c. 6. 
 i 4B1. 186. 
 
 § 13 
 
28 POLICE EEGULATION OF PEESONAL SECUEITT. 
 
 necessity the higher law must be obeyed, that man shall not 
 save his life at the expense of another, who is not responsible 
 for the threatening danger. 
 
 Homicide is not only justifiable when committed in de- 
 fense of one's life, but it is likewise excusable, when it is 
 necessary to the protection of a woman's chastity. She 
 may employ whatever force is necessary to afford her pro- 
 tection against the assault, even to the taking of life.^ So 
 may one use any degree of force that may be necessary to 
 protect any member of his family, a wife, child, etc.* 
 So may a battery be justified which is committed in defense 
 of one's property, both real and personal, providing, 
 always, that the force used is not excessive.^ And where 
 one is assaulted in one's dwelling, he is not required to 
 retreat, but he may take the trespasser's life, if such ex- 
 treme force is necessary to prevent an entrance.* But, 
 although one may resist to any extent the forcible taking 
 away of any property from himself, yet homicide in resist- 
 ing a simple trespass to property, where there is no violence 
 offered to the person, is never justifiable, except in the case 
 of one's dwelling." 
 
 In all these cases, the assault and battery are justified, 
 
 1 Staten v. State, 30 Miss. 619; Briggs v. State, 29 (Ja. 733. 
 
 2 Commonwealth v. Malone, 114 Mass. 295; Stoneman v. Common- 
 wealth, 25 Gratt. 887; State v. Johnson, 75 N. C. 174; Staten v. State, 30 
 Miss. 619; Patten p. People, 18 Mich. 314. 
 
 3 Green v. Goddard, 2 Salk. 641 ; Beecher v. Parmele, 9 Vt. 352 ; Har- 
 rison V. Harrison, 43 Vt. 417 ; Ayers v. Birtch, 35 Mich. 501 ; Woodman 
 V. Howell, 45 111. 367; Abt v. Burgheim, 80 111. 92 ; Staehlin v. Destrehan, 
 2 La. Ann. 1019 ; McCarty v. Fremont, 23 Cal. 196. 
 
 * State V. Burwell, 63 N. C. 661 ; McPherson v. State, 22 Ga. 478 ; State 
 V. Abbott, 8 W. Va.741; Pitford v. Armstrong, Wright (Ohio), 94; Wall 
 V. State, 51 Ind. 453; Pond v. People, 8 Mich. 150; State v. Stockton, 61 
 Mo. 382 ; Palmore v. State, 29 Ark. 248. 
 
 5 State V. "Vance, 17 Iowa 138. See Loomis v. Terry, 17 Wend. 496. 
 See, also, Birdi;. Holbrook, 4 Bing. 628; Aldrlch v. Wright, 53 N. H. 398 
 (16 Am. Eep. 339); Hooker v. Miller, 37 Iowa, 613 (18 Am. Rep. 18), 
 where it is held that the use of spring guns and other like instruments, 
 ■which cause the death of trespassers upon the land, is not permissible. 
 § 13 
 
BATTERY IN SELF-DEFENSE. 2Q 
 
 only where they are employed in protecting rights against 
 threatened injury. One cannot use force in recovering 
 property or rights which have been taken or denied,^ or in 
 punishing those who have violated his rights. It is no 
 part of one's legal rights to avenge the wrongs of himself 
 and of his family.* 
 
 At common law it was the right of one, who was unlaw- 
 fully disseised, to recover his lands by force of arms, 
 using whatever force was necessary to that end. But 
 in the reign oF Eichard II. , a statute was passed which 
 prohibited entries upon land, in support of one's title, 
 "with strong hand or a multitude of people, but only 
 in a peaceable and easy manner." * Similar statutes have 
 been passed in most of the States of this country, and the 
 effect of the statute has been the subject of more or less 
 extensive litigation. The question has been mooted from 
 an early period, whether the purpose of the statute was to 
 take away the common-law civil right to recover one's 
 lawful possession by force of arms, or simply to provide a 
 punishment for the breach of the public peace thereby oc- 
 casioned. Although there are decisions, which maintain 
 that the statute has this double effect, and that such a 
 forcible entry would lay the lawful owner open to civil ac- 
 tions for trespass and for assault and battery,* yet the 
 weight of authority, both in this country and England, is 
 certainly in favor of confining the operation of the statute 
 to a criminal prosecution for the prohibited entry. The 
 decisions cited below maintain that the plea of liberum 
 
 1 Commonwealth v. Haley, i Allen, 318; Sampson v. Henry, 13 Pick. 
 336; Churchill v. Hulbert, 110 Mass. 42 (U Am. Kep. 578). 
 
 2 Cockroftw. Smith, 11 Mod. 43; Barfoot v. Reynolds, 2 Stra. 953; 
 State V. Gibson, 10 Ired. 214. 
 
 3 Tiedeman on Real Property, § 228. 
 
 * Reader v. Pardy, 41 111. 261 ; Doty v. Burdick, 83 III. 473 ; Knight v. 
 Knight, 90 111. 208 ; Dustin v. Cowdry, 23 Vt. 631 ; Whittaker v. Perry, 38 
 Vt. 107 (but see contra Beecher v. Parmelee, 9 Vt. 352; Mussey v. Scott, 
 32 Vt. 82). See Moore v. Boyd, 24 Me. 247. 
 
 § 13 
 
30 POLICE REGULATION OF PERSONAL SECUUITT. 
 
 tenementum is a good plea to every action of trespass quart, 
 clausum fregit, and even if the tenant is forcibly expelled 
 and suffers personal injuries therefrom, no civil action for 
 any purpose will lie, unless the force used was greater than 
 what was necessary to effect his expulsion.^ 
 
 § 14. Abortion. — In the act of abortion, there is a two- 
 fold violation of rights. In the first place, it involves a 
 violation of personal security to the limbs and body of the 
 woman. The foetus is part of the body of the woman and an 
 unnatural expulsion of it inflicts injury upon the mother. 
 But since the maxim of the law is, volenti non fit injuria, 
 there is at common law no crime of assault and battery 
 against the woman, where she procures or assents to the 
 abortion. But abortion involves also the destruction of the 
 life-germ of the fcetus, which is considered, even by the 
 common law, to be a living human being for certain pur- 
 poses. Mr. Blackstone says: "Even aa miant in ventre 
 sa mere, or in the mother's womb, is, for many purposes, 
 which will be specified in the course of these commentaries, 
 treated in law as if actually born.' ' * But the fcetus was not 
 supposed to have such an actual separate existence as to 
 make abortion a crime against the unborn child, until it had 
 reached that stage of its growth when it is said to *' quicken." 
 Consequently at common law, where an abortion is commit- 
 
 1 Harvey v. Brydges, 13 M. & W. 437; Davis v. Burrell, 10 C. B. 821; 
 Hilbourne v. Fogg, 99 Mass. 11; Churchill v. Hulbert, 110 Mass. 42 (16 
 Am. Eep. 578) ; Clark v. Kelliher, 107 Mass. 406 ; Steams v. Sampson, 59 
 Me. 569 (8 Am. Rep. 442) ; Sterling v. Warden, 51 N. H. 239 (12 Am. Eep. 
 80) ; Livingston v. Tanner, 14 N. H. 64; Estes v. Redsey, 8 Wend. 560; 
 Kellum V. Jansom, 17 Pa. St. 467; Zell v. Eeame, 31 Pa. St. 304; Toddc. 
 Jackson, 26 N. J. L. 525 ; Walton v. Fill, 1 Dev. & B. 507 ; Johnson v. 
 Hanahan, 1 Strobh. 313 ; Tribble v. Frame, 1 J. J. Marsh. 599 ; Krevet v. 
 Meyer, 24 Mo. 107; Fnhr v. Dean, 26 Mo. 116. But where force is used 
 after a peaceable entry to eject a tenant, it is lawful and will not sustain a 
 prosecution for assault and battery. Steams v. Sampson, 69 Me. 569 (& 
 Am Eep. 442). 
 
 2 1 Bl. Com. 154. 
 
 § 14 
 
COMPULSOEY SUBMISSION TO MEDICAL TREATMENT. 31 
 
 ted upon a woman, with her consent, before the child had 
 quickened, it is no crime unless the death of the mother en- 
 sues.^ The crime of abortion is now regulated by statute 
 in the different States, and is generally made a crime, under 
 all circumstances, to procure the miscarriage of a pregnant 
 woman, whether she consents to the act, or the child has 
 not quickened, and even where she herself , unaided, attempts 
 the abortion. 
 
 § 15. Compalsory submission to surgical and medical 
 treatment. — Although it has never been brought before 
 the courts for adjudication, it is nevertheless a most inter- 
 esting question of police power, whether a person who is 
 suffering from disease can be forced to submit to a surgical 
 operation or medical treatment. We can readily under- 
 stand the right of a parent or guardian to compel a child to 
 submit to necessary medical treatment, and likewise the 
 right of the guardian or keeper of an insane person to treat 
 him in a similar manner. So also can we justify the exer- 
 cise of force in administering remedies to one who is in the 
 delirium of fever. But can a sane, rational man or woman 
 of mature age be forced to submit to medical treatment, 
 though death is likely to follow from the consequent neglect? 
 If the disease is infectious or contagious, we recognize 
 without question the right of the State to remove the 
 afflicted person to a place of confinement, where he will not 
 be likely to communicate the disease to others ; * and we 
 recognize the right of the State to keep him confined, as 
 long as the danger to the public continues. Inasmuch as 
 the confinement of such\ a person imposes a burden upon 
 the community, all means for lessening that burden may be 
 
 1 Commonwealth «. Parker, 9 Mete. 263; State v. Cooper, 22 N. J. L. 
 52; see Abrams v. Foshee, 3 Iowa, 274; Hatfield v. Gano, 15 Iowa, 177; 
 People ». Jackson, 3 Hill, 92; Wilson v. Iowa, 2 Ohio St. 819; Bobbins 
 V. State, 8 Ohio St. 131 ; State v. Smith, 32 Me. 369 ; Commonwealth v. 
 Wood, 11 Gray, 86; Mills «. Commonwealth, 13 Pa. St. 631. 
 
 2 See post, § 42. 
 
 § 15 
 
32 POLICE REGULATION OF PERSONAL SBCURITr. 
 
 employed as a legitimate exercise of police power ; and 
 if a surgical operation or medical treatment be necessary 
 to eflFect a cure, the patient cannot lawfully resist the treat- 
 ment. Not only is this true, but it seems that medical and 
 surgical treatment can be prescribed, against the consent 
 of the individual, as a preventive of contagious and infec- 
 tious diseases. Thus in England, and probably in some of 
 the United States, vaccination has been made compulsory.^ 
 When one remembers the terrible scourges suffered from 
 small-pox in the past, and thinlss of the moderation and 
 control of them effected by a general vaccination of the 
 the people, no one would hesitate to answer all philosophi- 
 cal objections to compulsory vaccination by an appeal to the 
 legal maxim, solus populi suprema lex. In the same man- 
 ner, where medical attendance and surgical operations 
 are necessary to procure the successful delivery of a child, 
 the consent of the woman is not necessary. The saving 
 of her life and the life of the child is a sufficient justi- 
 fication for this invasion of the right of personal secur- 
 ity. But where the neglect of medical treatment will not 
 cause any injury to others, it is very questionable if any 
 case can be suggested in which the employment of force, 
 in compelling a subjection to medical treatment of one who 
 refused to submit, could be justified, unless it be upon 
 the very uncertain and indefinite ground that the Sta.te 
 suffers a loss in the ailment of each inhabitant, which 
 may be guarded against or cured by the proper medical 
 treatment. 
 
 § 16. Security to health — Legalized nuisance. — The 
 
 security against all causes of injury to health and bodily 
 comfort is also highly essential to human happiness, and 
 those acts of individuals which produce injury to health, 
 
 ^ In Montreal, Canada, (luring the winter of 1885-86, the enforcement 
 of auch a law was resisted by a large part of the population, and serious 
 riots ensued. 
 § 16 
 
SECURITY TO HEALTH — LEGALIZED NUISANCE. 33 
 
 or seriously interfere with bodily comfort, are called nuis- 
 ances and are, as a general rule, prohibited. But it is not 
 every annoyance to health and comfort, which constitutes 
 a nuisance.^ Where the annoyance proceeds from some 
 natural cause, and is not the consequence of an act of 
 some individual, it is no nuisance, if the public or private 
 owner should fail to remove the cause of annoyance.^ 
 Thus, it is not actionable, if the owner o f swamp lands 
 fails to drain his lands, and in consequence the neigh- 
 bors are made sick by the injurious exhalations.^ Nor is it 
 any ground for an action against a municipal corporation, 
 that it has failed to provide proper remedies for the preven- 
 tion of nuisances and other annoyances to health and bod- 
 ily comfort.* And although, as a general proposition, no 
 one has a right to do any act which will cause injury to the 
 health or disturb seriously the bodily comfort or mental 
 quietude of another, yet this right of security to health and 
 comfort cannot be left absolute in a state of organized 
 society. It must give way to the reasonable demands of 
 trade, commerce, and the other vital interests of society. 
 While the state cannot talse away absolutely the private 
 rights of individuals by the legalization of nuisances,* yet 
 in most cases of nuisances, affecting the personal health 
 and comfort, there is involved the consideration of what 
 constitutes a reasonable use of one's property, and that is 
 a question of fact, the answer to which varies according to 
 the circumstances of each case. One is expected to submit 
 
 1 See post, § 122, for a more thorough discussion ot nuisances. 
 
 ' See post, § 124, in respect to the power of the state to compel the 
 owner of land to remove natural causes of annoyance. 
 
 3 Eeeves v. Treasurer, 8 Ohio St. 333. 
 
 * Roberts v. Chicago, 26 111. 249. See Wilson v. New York, 1 Denio, 
 595; Mills v. Brooklyn, 32 N. Y. 489; Carr v. Northern Liberties, 35 Pa. 
 St. 824; Detroit v. Michigan, 34 Mich. 125; Delphi v. Evans, 36 Ind. 90; 
 Cotes V. Davenport, 9 Iowa, 227; Lamber v. St. Louis, 15 Mo. 610; 
 White V. Yazoo, 27 Miss. 357. 
 
 5 See Cooley on Torts, 616. 
 
 3 § 16 
 
34 POLICE REGULATION OF PERSONAL SECURITY. 
 
 to a reasonable amount of discomfort for the convenience 
 or benefit of his neighbor. If a discomfort were wantonly 
 caused from malice or wickedness, a slight degree of incon- 
 venience might be sufficient to render it actionable ; but if 
 it were to result from pursuing a useful employment in a 
 way which but for the discomfort to others would be rea- 
 sonable and lawful, it is perceived that the position of both 
 parties must be regarded, and that what would have been 
 found wholly unreasonable before may appear to be clearly 
 justified by the circumstances.^ Instead of being a ques- 
 tion of personal health and comfort on the one hand, and 
 a profitable use of property on the other hand, the question 
 is, on whom in equity should the loss fall, where two adjoin- 
 ing or contiguous land proprietors find their interests clash- 
 ing in the attempted use of the land by one for a purpose 
 or trade, which causes personal discomfort to the other, 
 who is residing upon his land. The injury to the personal 
 comfort and health is not in such a case an absolute one. 
 For, as was said by the court in one of the leading cases,' 
 " the people who live in such a city, i.e., where the princi- 
 pal industry consists of manufactures, or within its sphere 
 of influence, do so of choice, and they voluntarily subject 
 themselves to its peculiarities and its discomforts for the 
 greater benefits they think they derive from their residence or 
 business there." If a noisome or unhealthy trade is plie(J in 
 apart of a city, which is given up principally to residences, it 
 might be considered a nuisance, while the same trade mighty 
 in a less populous neighborhood, or in one which is de- 
 voted to trade and manufacturing, be considered altogether 
 permissible.' 
 
 1 Cooley on Torts, 696. 
 
 2 Huckenstein's Appeal, 70 Pa. St. 102 (10 Am. Eep. 669). 
 
 3 St. Helen's Smelting Co. v. Tipllng, 11 H.L. Cas. 642; Whitney «. 
 Bartholomew, 21 Conn. 213 ; McKeon v. Lee, 61 N. Y. 300 (10 Am. Rep. 
 659); Huckenstein's Appeal, 70 Pa. St. 102 (10 Am. Kep. 669); Gilberts. 
 Showerman, 23 Mich. 448; Kirkman «. Handy, 11 Humph. 406; Cooley 
 
 § 16 
 
SECURITY TO REPUTATION. 35 
 
 Section 17. Security to reputation — Privileged communications. 
 17a. Privilege of legislators. 
 176. Privilege in judicial procedings. 
 17c. Criticism of officers and candidates for office. 
 nd. Publication through the press. 
 
 § 17. Security to reputation — Privileged communica- 
 tions. — A man's reputation, the opinion entertained of 
 him by his neighbors, is another valuable possession, and 
 the security to which is most jealously, but, it must be con- 
 fessed in most cases, ineffectually guarded against infrac- 
 tions. The breath of suspicion, engendered by a slanderous 
 lie, will tarnish a fair name, long after the injurious state- 
 ment has been proved to be an unfounded falsehood. But 
 the aim of all legislation on the subject is to provide the 
 proper protection against slander and libel, and failure in 
 ordinary cases is caused by the poverty of the means of 
 penal judicature, and does not arise from any public indif- 
 ference. But dear to man as is the security to reputation, 
 there are cases in which it must yield to the higher demands 
 of public necessity and general welfare. Malice is gener- 
 ally inferred from a false and injurious statement or 
 publication, and the slanderer and libeler are punished 
 accordingly. But there are special cases, in which for rea- 
 sons of public policy, or on account of the rebuttal of the 
 j)-resumption of malice by the co-existence of a duty to 
 speak or an active interest in the subject, the speaker or 
 writer is held to be " privileged," that is, relieved from 
 liability for the damage which has been inflicted by his false 
 
 on Torts, 596-605 ; 1 Dillon's Municipal Corp., § 374, note. " If one lives 
 in a city he must expect to sufEer the dirt, smolie, noisome odors, noise 
 and confusion incident to city life. As Lord Justice James beautifully 
 said in Salvin v. North Brancepeth Coal Co., L. M. 9 Ch. Ap. 705, ' if some 
 picturesque haven opens its arms to invite the commerce of the vrorld, it 
 is not for this court to forbid the embrace, although the fruit of it should 
 be the sights and sounds and smells of a common seaport and ship- 
 building town, vrhich v^ould drive the Dryads and their masters from 
 their ancient solitude.' " Earl, J., in Campbell v. Seaman, 63 N. Y. 668. 
 
 § 17 
 
36 POLICE REGULATION OF PERSONAL SECURITY. 
 
 charges. These privileged communications are divided 
 into two classes ; first, those which are made in a public or 
 official capacity, and which for reasons of public policy are 
 not permitted to be the subject of a judicial action ; and sec- 
 ondly, all those cases in which the circumstances rebut the 
 presumption of malice. In these cases of the second class, 
 the privilege is only partial. As already stated, the circum- 
 stances are held to rebut the presumption of malice, and 
 throws upon the plaintiff the burden of proving affirma- 
 tively that the defendant was actuated by malice in making 
 the false statement which has injured the plaiutiflT's reputa- 
 tion. In these cases, the proof of express malice revives 
 the liability of the alleged slanderer.^ As Mr. Cooley says, 
 "they are generally cases in which a party has a duty to 
 discharge, which requires that he should be allowed to 
 speak freely and fully that which he believes ; or where he 
 is himself directly interested in the subject-matter of the 
 communication, and makes it with a view to the protection 
 or advancement of his own interest, or where he is com- 
 municating confidentially with a person interested in the com- 
 munication, and by way of advice." ^ The cases of a private 
 nature are very numerous, and for a full and exhaustive 
 discussion of them, reference must be made to some work 
 on slander and libel. Under this rule of exemption are 
 included answers to inquiries after the character of one, whb 
 had been employed by the person addressed, and who is 
 soliciting employment from one who makes the inquiry,' 
 
 1 " It properly signifies this and nothing more; that the excepted in- 
 stances shall so far change the ordinary rule with respect to slanderous 
 or libelous matter as to remove the regular and usual presumption of 
 malice, and to make it incumbent on the party complaining to show 
 malice." Daniel, J., in White v. Nichols, 3 How. 266, 287. See Lewis o. 
 Chapman, 16 N. Y. 369. 
 
 = Cooley Const. Lim. 425. 
 
 ' Pattison v. Jones, 8 B. & C. 578; Bradley «. Heath, 12 Pick. 168; 
 Hatch ». Lane, 105 Mass. 394; Elam ». Badger, 23 111.498; Noonan ». 
 Orton, 32 Wis. 106. So also is a subsequent communication, to one who 
 § 17 
 
PRIVILEGE OF LEGISLATORS. 37 
 
 the answer of all inquiries between tradesmen concerning 
 the financial credit and commercial reputation of persons 
 who desire to enter into business dealings with the inquirers.'^ 
 While the private reports of mercantile agencies are priv- 
 ileged,* the published reports of such agencies, which are 
 distributed among the customers, are held not to constitute 
 one of the privileged classes.' 
 
 All 6oraa_/?(?e communications are privileged, where there 
 is a confidential relation of any kind, existing between the 
 parties in respect to the subject-matter of the inquiry. 
 "All that is necessary to entitle such communications to 
 be regarded as privileged is, that the relation of the parties 
 should be such as to afibrd reasonable ground for supposing 
 an innocent motive for giving the information, and to de- 
 prive the act of an appearance of officious intermeddling 
 with the afilairs of another." * 
 
 The first class of privileged communications, enumerated 
 above, is absolutely privileged, and there is no right of ac- 
 tion, even though the false statement is proved to be 
 prompted by malice. They are few in number, and the 
 privilege rests upon public policy, and usually have refer- 
 ence to the administration of some branch of the govern- 
 ment. They will be discussed in a regular order. 
 
 § 17a. Privilege of legislators. — In order that the 
 
 had employed a clerk upon the former's recommendation, of the facts 
 which have induced a change of opinion. Fowles v. Bowen, 30 N. Y. 20. 
 
 1 Smith V. Thomas, 2 Bing. N. C. 372; White v. Nichols, 3 How. 266; 
 Cooley on Torts, 216. 
 
 2 Lewis V. Chapman, 16 N. T. 369 ; Ormsby ». Douglass, 37 N. Y. 477. 
 s Taylor v. Church, 8 N. Y. 452; Sunderlin v. Bradstreet, 46 N. Y. 188 
 
 (7 Am. Rep. 822). See note 2, p. 55. 
 
 ' Lewis V. Chapman, 16 N. Y. 369. See Todd v. Hawkins, 8 C. & P. 
 88 ; Cockagne v. Hodgkisson, 6 C & P. 643 ; Klinck v. Colby, 46 N. Y. 274 
 (7 Am. Eep. 360); Joannes v. Bennett, 5 Allen, 170; Hatch v. Lane, 105 
 Mass. 894; Fitzgerald v. Eobinson, 112 Mass. 371; State v, Burnham, 9 
 N. H. 84; Knowles©. Peck, 42 Conn. 386 (19 Am. Eep. 642); Goslin o. 
 Cannon, 1 Harr. 3; Grimes v. Coyle, 6 B. Men. 301; Eectori;. Smith, 11 
 Iowa, 302. 
 
 § 17a 
 
38 POLICE REGULATION OF PERSONAL SECURITY. 
 
 legislator may, in the performance of his official duties, feel 
 himself free from all restraining influences, and able to act 
 without fear or favor of any one whatsoever, it is usually pro- 
 vided by a constitutional clause, that he shall not be sub- 
 jected elsewhere to any legal liability for any statement he 
 may have made in speech or debate.^ Inasmuch as this ab- 
 solute privilege is established in behalf of the legislator, 
 not for his own benefit, but with a view to promote the 
 public good, and inasmuch as the houses of Congress, and 
 of the State legislatures, have the power to punish their 
 members for disorderly behavior and unparliamentary lan- 
 guage, a most liberal construction is given to this constitu- 
 tional provision. "These privileges (the privilege of 
 legislators from arrest and from liability for false statemeuts 
 in speech or debate) are thus secured, not with the inten- 
 tion of protecting the members against prosecutions for 
 their own benefit, but to support the rights of the people, 
 by enabling their representatives to execute the functions 
 of their office without fear of prosecutions civil or criminal. 
 I therefore think that the article ought not to be construed 
 strictly, but liberally, that the full design of it may be an- 
 swered. I will not confine it to delivering an opinion, ut- 
 tering a speech, or haranguing in debate, but will extend it 
 to the giving of a vote, to the making of a written report, 
 and to every other act resulting from the nature and in the 
 execution of the office ; and I would define the article as se- 
 curing to every member exemption from prosecution for 
 everything said or done by him, as a representative, in the 
 exercise of the functions of that office, without inquiring 
 
 I The provision in the United States constitution is, " And for any 
 speech or debate in either house they (the members of Congress) shall 
 not be questioned in any other place." U. S Const, art. I., § 6. It is 
 believed that similar provisions are to be found in every State constitu. 
 tlon having reference to members of State legislatures, except those of 
 North Carolina, South Carolina, Mississippi, Texas, California and Nev- 
 ada. Cooley Const. Lim. *446, note 1. 
 
 § 17a 
 
PRIVILEGE OF LEGISLATORS. 39 
 
 whether the exercise was regular and according to the rules 
 of the house, or irregular and against their rules. I do not 
 confine the member to his place in the house, and I am sat- 
 isfied that there are cases in which he is entitled to this pri- 
 vilege when not within the walls of the representatives' 
 chamber. He cannot be exercising the functions of his 
 office as the member of a body, unless the body be in ex- 
 istence. The house must be in session to enable him to 
 ■claim this privilege, and it is in session, notwithstanding 
 occasional adjournments for short intervals for the conven- 
 ience of its members. If a member, therefore, be out of 
 the chamber, sitting in committee, executing the commis- 
 sion of the house, it appears to me that such a member is 
 within the reason of the article, and ought to be considered 
 within the privilege. The body of which he is a member is 
 In session, and he, as a member of that body, is in fact dis- 
 charging- the duties of his office. He ought, therefore, to 
 be protected from civil or criminal prosecutions for every- 
 thing said or done by him in the exercise of his functions, 
 as a representative, in debating or assenting to or drafting a 
 report. Neither can I deny the member his privilege when 
 executing the duties of his office, in convention of both 
 houses, although the convention should be holden in the 
 senate chamber." ^ But even to so absolute a privilege as 
 this, there is a limitation. Because a man holds the position 
 of a legislator, the public interests do not require that he 
 be given unlimited license to slander whom he pleases, and 
 to screen himself from a just retribution under his legisla- 
 tive privilege. It is only when he is acting in his official 
 capacity, that he can claim this protection. If, therefore, 
 the slanderous statement has no relevancy to any public busi- 
 
 1 Coffin V. Coffin, i Mass. 1, 27 (3 Am. Deo. 189) . The constitutional 
 provision, which was in force when this case arose, was as follows : 
 *' The freedom of deliberation, speech and debate in either house, can- 
 not be the foundation of any accusation or prosecution, action or com- 
 plaint, in any other court or place whatever." 
 
 § 17a 
 
40 POLICE EEGULATION OF PERSONAL SECURITY. 
 
 ness or duty, is not even remotely pertinent to public 
 questions then under discussion, the legislator in his utter- 
 ance of them subjects himself to civil and criminal liability .^ 
 A similar exemption from responsibility for official utter- 
 ances is guaranteed to the President of the United States 
 and to the governors of the several States.^ 
 
 § 176. Privilege in judicial proceedings. — The object 
 of all judicial proceedings is the furtherance of justice by 
 preventing or punishing wrongs and providing protection 
 to rights. Although the law does not support, and is not 
 designed to foster, a litigious spirit, yet whenever one, from 
 all the facts within his knowledge, is justified in believing 
 that he has suffered a wrong ; in other words, if the facts 
 within his knowledge make out a prima facie cause of 
 action, he has a right to call to his aid the whole power of 
 the law in the protection and enforcement of his rights, and 
 it is to the public interest that a sufficient remedy be pro- 
 vided, and a resort to the courts be encouraged, in order to 
 diminish the temptation, which is always present, to re- 
 dress one's own wrongs. Now, if one, in stating his cause 
 of action to the court, will subject himself to liability for 
 every mistake of fact that he might innocently make, 
 appeals to the courts in such cases would thus be discour- 
 aged. It is therefore consonant with the soundest public 
 policy, to protect from civil liability all false accusations 
 contained in the affidavits, pleadings, and other papers, 
 which are preliminary to the institution of a suit. But the 
 courts are not to be made the vehicles for slanderous villifica- 
 tion, and hence the false accusations are privileged only 
 when made in good faith, with the intention to prosecute, 
 and under circumstances, which induced the affirmant, as a 
 reasonably prudent man, to believe them to be true. The 
 
 1 Coffin B. Coffin, i Mass. 1 (3 Am. Dec. 189) ; State v. Burnham, 9 N. H. 
 34; Perkins ». Mitchell, 31 Barb. 461. 
 
 2 Cooley on Torts, 214. 
 
 § 176 
 
PRIVILEGE IN JUDICIAL PROCEEDINGS. 41 
 
 good faith rebuts the presumption of malice, and the affiant 
 is protected under his privilege, as long as the statement 
 is pertinent to the cause of action, and where he is not 
 actuated by malice in making it. If the statement is not 
 pertinent, or if express malice be proved, the liability 
 attaches.^ All allegations in pleadings, if pertinent, are 
 said to be absolutely privileged,' except where the libelous 
 words in the pleadings refer to third person, and not 
 to the defendant. Then they are only privileged, when 
 they are pertinent and are pronounced in good faith.' 
 Not only are false statements privileged, when made 
 in preliminary proceedings, but a false statement has 
 also been held to be privileged, where it has been made to 
 one, after the commission of a crime, with a view to aid him 
 in discovering the offender and bringing him to justice.* 
 And so, likewise, is a paper privileged, which is signed by 
 several persons, who thereby agree to prosecute others, 
 whose names are given in the paper, and who are therein 
 chai'ged with the commission of a crime. * 
 
 In the same manner is the report of the grand jury privi- 
 leged, notwithstanding, in making it, they have exceeded 
 their jurisdiction.® 
 
 1 Kine v. Sewell, 3 Mees. &.W. 297; Kidder v. Parkburst, 3 Allen, 398; 
 Worthlngton v. Scrlbner, 108 Mass. 487 (12 Am. Rep. 736) ; Eames v. 
 Whittaker, 123 Mass. 342; Jarvis ». Hathaway, 3 Johns. 180; Allen ». 
 Crofoot, 2 Wend. 515; Burlingame v. Burllngame, 8 Cow. 141; Garr ». 
 Selden,4 N. Y. 91; Maurice v. Worden, 54 Md. 233 (39 Am. Rep. 384) ; 
 Vaussee v. Lee, 1 Hill (S. C), 197 (26 Am. Dec. 168) ; Marshall ». Giinter, 
 6 Rich. 419 ; Lea v. Sneed, 4 Sneed, 111 ; Grimes v. Coyle, 6 B. Mon. 301 ; 
 Bunton v. Worley, 4 Bibb, 38 (7 Am. Dec. 735) ; Strauss v. Meyer, 48 
 111. 385; Spaids v. Barrett, 57, 111. 289; Wyatt v. Buell, 47Cal. 624. 
 
 » Strauss v. Meyer, 48 HI. 385 ; Lea v. White, 4 Sneed, 111 ; Forbes v. 
 Johnson, 11 B. Mon. 48. 
 
 « McLaughlin o. Cowley, 127 Mass. 316; Davis v. McNees, 8 Humph. 
 40; Ruohs v. Packer, 6 Heisk. 395 (19 Am. Rep. 598) ; Wyatt v. Buell, 47 
 Cal. 624. 
 
 * Goslin V. Cannon, 1 Harr. 3. 
 
 5 Klinck V. Colby, 46 N. Y. 427 (7 Am. Rep. 360). 
 
 « Rector v. Smith, 11 Iowa, 302. 
 
 § 176 
 
42 POLICE REGULATION OP PERSONAL SECURITY, 
 
 "When the case is called up in court for trial, the chief 
 aim of the proceeding is the ascertainment of the truth, and 
 all the protections thrown around the dramatis personce in 
 a judicial proceeding are designed to bring out the truth, 
 and to insure the doing of justice. We therefore find 
 as a familiar rule of law, that no action will lie against a 
 witness for any injurious and false statement he might make 
 on the witness-stand. If he is guilty of perjury, he subjects 
 himself to a criminalliabillty, but in no case does he incur 
 any civil liability.* But he is only privileged when the 
 statement is pertinent to the cause and voluntarily offered. 
 He is not the judge of w^hatis pertinent, and is protected if 
 his statement is prompted by a question of counsel, which is 
 not forbidden by the court.** 
 
 The statements of the judge are privileged for similar 
 reasons,^ and in the same manner are jurors privileged in 
 statements which they make during their deliberations upon 
 the case.* 
 
 The most important case of privilege, in connection with 
 judicial proceedings, is that of counsel in the conduct of the 
 cause. In order that the privilege may prove beneficial to 
 the party whom the counsel represents, it must afford him 
 the widest liberty of speech, and complete immunity from 
 liability for any injurious false statement. It is, therefore, 
 held very generally, that the privilege of counsel is as brogd 
 as that of the legislator, and that he sustains no civil liabil- 
 
 1 Dunlap V. Glidden, 31 Me. 435; Barnes v. McCrate, 82 Me. 442; 
 Cunningham v. Brown, 18 Vt. 123 ; Allen v. Crofoot, 2 Wend. 515 (20 Am. 
 Dec. 647) ; Garr v. Selden, 4 N. Y. 91 ; Marsh v. Ellsworth, 50 N. Y. 309; 
 Grove v. Brandenburg 7 Blackf . 234 ; Shock v. McOhesney, 4 Yeates, 507 
 (2 Am. Dec. 415) ; Terry ». Fellows, 21 La. Ann. 375; Smith v. Howard, 
 28 Iowa, 51. 
 
 2 See Barnes ». McCrate, 32 Me. 442; Kidder v. Parkhurst, 3 Allen, 
 393; White v. Carroll, 42 N. Y. 166 (1 Am. Rep. 603); Calkins v. Sum- 
 ner, 13 Wis. 193. 
 
 * Dunham i) Powers, 42 Vt. 1 ; Rector v. Smith, 11 Iowa, 802. 
 « Cooley on Torts, 214 ; Townshend on Slander and Libel, § 227. 
 
 § 176 
 
PRIVILEGE IN JUDICIAL PEOCEEDINGS. 43 
 
 ity for false, injurious statements, however malicious an 
 intent may have actuated their utterance, provided they are 
 pertinent to the cause on trial. ^ Nowhere is the privilege 
 •of counsel more clearly elucidated than in the following ex- 
 tract from an opinion of Chief Justice Shaw: "We take 
 the rule to be well settled by the authorities, that words 
 spoken in the course of judicial proceedings, though they are 
 such as impute crime to another, and, therefore, if spoken 
 elsewhere, would import malice and be actionable in them- 
 selves, are not actionable, if they are applicable and perti- 
 nent to the subject of inquiry. The question, therefore, in 
 such cases is, not whether the words spoken are true, but 
 whether they were spoken in the course of judicial proceed- 
 ings, and whether they are relevant or pertinent to the cause 
 or subject of inquiry. And in determining what is perti- 
 nent, much latitude must be allowed to the judgment and 
 discretion of those who are entrusted with the conduct of a 
 cause in court, and a much larger allowance made for the 
 ardent and excited feelings with which a party or counsel, 
 who naturally and almost necessarily identifies himself with 
 his client, may become animated, by constantly regarding 
 one side only of an interesting and animated controversy, in 
 which the dearest rights of such a party may become in- 
 volved. And if these feelings sometimes manifest them- 
 selves in strong invectives, or exaggerated expressions, 
 beyond what the occasion would strictly justify, it is to be 
 recollected that this is said to a judge who hears both sides, 
 in whose mind the exaggerated statement may be at once 
 controlled and met by evidence and argument of a contrary 
 tendency from the other party, and who, from the impar- 
 tiality of his position, will naturally give to an exaggerated 
 
 1 Hastings v. Lusk, 22 Wend. 410 (34 Am. Dec. 380) ; Warner v. Paine, 
 3 Sandf. 193; Marsh v. Ellsworth, SON. Y. 309; McMillan v. Birch, 1 Bin- 
 ney, 178 (2 Am. Dec. 426) ; McLaughlin v. Cowley, 127 Mass. 316; Har- 
 •den V. Cpmstock, 2 A. K. Marsh. 480 (12 Am. Dec. 168); Spaids v. 
 Barnett, 57 111. 289 ; Jennings v. Paine, 4 Wis. 358. 
 
 § 176 
 
44 POLICE REGULATION OF PERSONAL SECURITY. 
 
 assertion, not warranted by the occasion, no more weight 
 than it deserves. Still, this privilege must be restrained by 
 some limit, and we consider that limit to be this : that a 
 party or counsel shall not avail himself of his situation to 
 gratify private malice by uttering slanderous expi-essions, 
 either against a party, witness or third person, which have 
 no relation to the cause or subject-matter of the inquiry. 
 Subject to this restriction, it is, on the whole, for the pub- 
 lic interest, and best calculated to subserve the purposes of 
 justice, to allow counsel full freedom of speech in conduct- 
 ing the causes and advocating and sustaining the rights of 
 their constituents ; and this freedom of discussion ought not 
 to be impaired by numerous and refined distinctions." ' 
 
 While the importance of an almost unrestricted liberty 
 of speech to a counsel is recognized and conceded, and like- 
 wise the difficulty in restraining abuses of the privilege, still 
 the commonness of the abuse would well make the student 
 of police power pause to consider, if there be no remedy 
 which, while correcting the evil, will not tend to hamper 
 the counsel in the presentation of his client's case. Per- 
 sonal invective against one's opponent, the " browbeating " 
 of hostile witnesses, are the ready and accustomed weapons 
 of poor lawyers, while really able lawyers only resort to 
 them when their cause is weak. If the invective was con- 
 fined to the subject-matter furnished and supported by tiie 
 testimony before the court, and consisted of exaggerated 
 and abusive presentations of proven facts, while even this 
 would seem reprehensible to us, there are no possible 
 means of preventing it. But it is not within the privilege 
 of counsel to gratify private malice by uttering slanderous 
 
 1 Hoar V. Wood, 3 Mete. 193. See Bradley v. Heath, 12 Pick. 163; 
 Mower v. Watson, 11 Vt. 536 (34 Am. Dec. 704) ; Gilbert v. People, 1 
 Denio, 41; Ring v. Wheeler, 7 Cow. 725; Hastings v. Lusk, 22 Wend. 410 
 (34 Am. Dec. 380) ; Stackpole v. Hennen, 6 Mart. (n. s.) 481 (17 Am. Dec. 
 187); Marshall B. Gunter, 6 Rich. 419; Lester v. Thurmond, 51 Ga. 118; 
 Ruohs V. Backer, 6 Heisk. 395 (19 Am. Sep. 598) ; Lawson v. Hicks, 38' 
 Ala. 279; Jennings v. Paine, 4 Wis, 358. 
 § 176 
 
CRITICISM OP OFFICERS AND CANDIDATES FOR OFFICE. 45 
 
 •expressions, either against a party, a witness or a third per- 
 son, which have no relation to the subject-matter of the in- 
 <juiry. Counsel should be confined to what is relevant to 
 the cause, whatever may be his motive for going outside of 
 the record. The courts are too lax in this regard. No 
 legislation is needed ; they have the power in their reach to 
 reduce this evil, for it is an evil, to a minimum. The most 
 salutary remedy would be raising the standard of qualifica- 
 tion for admission to the bar. The number of poor lawyers, 
 now legion, would be greatly reduced, and consequently the 
 abuse of this privilege lessened. 
 
 § 17c. Criticism of officers and candidates for office. — 
 
 When a man occupies an official position, or is a candidate 
 for office, the people whom he serves, or desires to serve, 
 are interested in his official conduct, or in his fitness and 
 capacity for the office to which he aspires. It would seem, 
 therefore, that, following out the analogy drawn from cases 
 of private communications, affecting the reputation of per- 
 sons, in whom the parties giving and receiving the commu- 
 nications are interested, any candid, honest, canvass of the 
 official's or candidate's character and capacity would be 
 privileged, and the party making the communication will 
 not be held liable, civilly or criminally, if it proves to be 
 false. But here, as in the case of private communications, 
 one or the other of the parties, who were concerned in the ut- 
 terance of the slander or publication of the libel, must have 
 been interested in the subject-matter of the communication. 
 In the case of officials and candidates for office, in order to 
 be privileged, the criticism must be made by parties who 
 are interested personally in the conduct and character of 
 the official or candidate. The subject-matter of the com- 
 munication must, therefore, relate to his official conduct, 
 if the party complained of be an officer, and, if he be a can- 
 didate for office, the communication should be confined to a 
 statement of objections to his capacity and fitness for office. 
 
 § 17c 
 
46 POLICE EEGULATION OF PERSONAL SECDEITT. 
 
 Not that in either case the man's private conduct cannot be 
 discussed under a similar privilege, although such a distinc- 
 tion is advocated in an English case.^ In this case, Baron 
 Alderson says : " It seems there is a distinction, although 
 I must say I really can hardly tell what the limits of it are, 
 between the comments on a man's public conduct and upon 
 his private conduct. I can understand that you have a right 
 to comment on the public acts of a minister, upon the public 
 acts of a general, upon the public Judgments of a judge, 
 upon the public skill of an actor ; I can understand that ; 
 but I do not know where the limit can be drawn distinctly 
 between where the comment is to cease, as being applied 
 solely to a man's public conduct, and where it is to begin 
 as applicable to his private character; because, although it 
 is quite competent for a person to speak of a judgment of 
 a judge as being an extremely erroneous and foolish one, — 
 and no doubt comments of that sort have great tendency to 
 make persons careful of what they say, — and although it 
 is perfectly competent for persons to say of an actor that 
 he is a remarkably bad actor, and ought not to be permitted 
 to perform such and such parts, because he performs them 
 so ill, yet you ought not to be allowed to say of an actor 
 that he has disgraced himself in private life, nor to say of a 
 judge or of a minister that he has committed a felony, or 
 anything of that description, which is in no way connected 
 with his public conduct or public judgment ; and, therefore, 
 there must be some limits, although I do not distinctly see 
 where those limits are to be drawn." Judge Cooley, in 
 criticising this opinion,^ says : " The radical defect in this 
 rule, as it seems to us, consists in its assumption that the 
 private character of a public officer is something aside from, 
 and not entering into or influencing his public conduct; 
 that a thoroughly dishonest man may be a just minister, 
 and that a judge, who is corrupt and debauched in private 
 
 1 Gathercole v. Miall, 15 Mees. & W. 319. 
 ' Cooley Const. Lim. 440. 
 § 17c 
 
CRITICISM OF OFFICERS AND CANDIDATES FOR OFFICE. 47 
 
 life may be pure and upright in his judgments ; in other 
 words, that an evil tree is as likely as any other to bring 
 forth good fruits. Any such assumption is false to human 
 nature, and contradictory to general experience ; and what- 
 ever the law may say, the general public will still assume 
 that a corrupt life will influence public conduct, and that a 
 man who deals dishosiestly with his fellows as individuals 
 will not hesitate to defraud them in their aorwregate and 
 
 Do O 
 
 corporate capacity, if the opportunity shall be given him." 
 Where the private character would indicate the posses- 
 sion of evil tendencies, which can manifest themselves in, 
 and influence, his official conduct to the detriment of the 
 public, it would seem but natural that the same privilege 
 should be extended to such a communication concerning a 
 candidate for office, as if the same evil tendency had been 
 manifested by some previous public or official conduct. 
 In both cases, the conduct is brought forward as evidence 
 of the same fact, his unfitness for the office to which he 
 aspires. But a candidate for office may possess defects of 
 character, which cannot in any way affect the public wel- 
 fare by influencing or controlling his official conduct, and 
 inasmuch as the privilege is granted, if at all, for the sole 
 purpose of promoting a free discussion of the fitness of the 
 candidate for office, such an object can be attained without 
 opening the floodgates of calumny upon a man, and depriv- 
 ing him of the ordinary protection of the law, because he 
 has presented himself as a candidate for the suffrages of the 
 people. Thus while vulgarity of habits or speech, unchas- 
 tity, and the like, maybe considered great social and moral 
 evils, they can hardly be considered to affect a candidate's 
 fitness for any ordinary office. Integrity, fidelity to trusts, 
 are not incompatible with even libertinism, which is attested 
 by the acts and lives of some of the public men of every coun- 
 try.^ Whereas dishonesty, in whatever form it may manifest 
 
 * But the retirement from public life duriug the present year, of a 
 prominent English statesman on account of his couvictioa of the act of 
 
 § 17c 
 
48 POLICE EEGULATION OF PERSONAL SECDEITT. 
 
 itself, blind bigotry, and the like, do enter largely into the 
 composition of one's official capacity, and consequently the 
 discussion of any acts which tend to establish these charac- 
 teristics would come within the privilege, although these 
 acts may be of a private nature. But, although it may be 
 justifiable in charging a candidate with vulgarity or uuchas- 
 tity, and the like, if they are true, there is no reason why 
 they should be privileged, because they do not enter into 
 the determination of the candidate's fitness for office, and 
 only raises a question of preference. 
 
 Where the party is holding an office instead of being a 
 candidate for office, the only public interest to be subserved 
 in the establishment of a privilege is the faithful perform- 
 ance of his official duty, and where the office is one, the in- 
 cumbent of which can only be removed for malfeasance in 
 office, only those communications should be held to be 
 privileged, which criticise his public conduct. If, however, 
 the office is appointive, and the incumbent is removable at 
 the pleasure of the appointive power, the privilege should 
 be as extensive as that which should relate to candidates, as 
 already explained. 
 
 The foregoing statement presents what it is conceived 
 should be the law. An investigation of the authorities, 
 however, reveals a different condition of the law. The 
 cases which fall under the subject of this section are 
 naturally, as well as by the variance in the authorities, 
 divided into two classes : , First, where the office is one of 
 appointment, and the criticism is contained in a petition or 
 address to the appointing or removing power ; and, secondly, 
 where the office is elective, and the criticisms appear in 
 publications of the press, or are made in speeches at public 
 meetings, and are intended to influence the votes of the 
 electors at large, who will be called upon to pronounce for 
 
 adultery, would indicate that public sentiment is changing in this regard, 
 and at no distant day will require that the private character of public 
 men shall be as pure as their public character. 
 § 17c 
 
CRITICISM OF OFFICERS AND CANDIDATES FOR OFFICE. 49 
 
 or against the candidate. In the cases of the first class, 
 it has been very generally held that the communications 
 are privileged as long as they are bona fide statements, and 
 the burden of establishing malice in their utterance is 
 thro-wn upon the plaintiff. The Supreme Court of New 
 York characterizes a contrary ruling in the court below, as 
 " a decision which violates the most sacred and unquestion- 
 able rights of free citizens ; rights essential to the very ex- 
 istence of a free government, rights necessarily connected 
 "with the relation of constituent and representative, the 
 Tight of petitioning for a redress of grievances, and the 
 right of remonstrating to the competent authority against 
 the abuse of official functions." ^ Not only are these peti- 
 tions privileged when they are presented, but also when 
 they are being circulated for the purpose of pi-ocuring sig- 
 natures.'' 
 
 This privilege is not confined to communications, in the 
 form of petitions, which relate to the incompetency, and 
 call for the removal, of public officials. It is applied also 
 to similar cases arising in the management and government 
 of other and private bodies, whether incorporated or unin- 
 corporated. Thus all communications to church tribunals 
 in reference to the moral character of its members, both 
 lay and clerical, are protected by this privilege so as not 
 
 1 Thorn v. Blanchard, 5 Johns. 608. In Howard v. Thompson, 21 
 Wend. 319, it was held in order that plaintiff may sustain his action in such 
 a case, he must not only prove actual malice, but also show the want of 
 probable cause, the action being considered by the court of the nature of 
 an action for malicious prosecution. See, generally, in support of the 
 privilege, Bodwell© Osgood, 3 Pick. 379 (15 Am. Dec. 228); Bradley e. 
 Heath, 12 Pick. 163 ; Hill v. Miles, 9 N. H. 9 ; State v. Burnham, 9 N. H. 
 34 (31 Am. Dec. 217) ; Howard v. Thompson, 12 Wend. 545 ; Gray v. Pent- 
 land, 2 Serg. & R. 23 ; Van Arnsdale v. Laverty, 69 Pa. St. 103 ; Harris v. 
 Huntington, 2 Tyler, 129 (4 Am. Dec. 728) ; Eeid o. DeLorme, 2 Brev. 
 76; Forbes v. Johnson, 11 B. Mon. 48; Whitney v. Allen, 62 HI. 472; 
 Xarkin v. Noonan, 19 Wis. 82. 
 
 'Vanderzee v. MoGregory, 12 Wend. 645; Street v. Wood, 15 Barb, 
 106. 
 
 4 § 17c 
 
50 POLICE REGULATION OP PERSONAL SECURITY. 
 
 to be actionable, if they were not prompted by malice.^ 
 The same privilege protects a communication to the lodge; 
 of some secular or'ganization, preferring charges against a 
 member.^ In all these cases the privilege only extends to 
 the communication or petitions, which are presented to the 
 body or person, in whom the power of appointment and 
 removal is vested, and if a petition is prepared, but never 
 presented to the proper authority, any other publication of 
 it would not be privileged.' 
 
 There is apparently no rational difference, so far as the 
 justification of the privilege is concerned, between those 
 cases, in which there is a remonstrance or petition to the 
 body or person having the power of appointment and re- 
 moval, and the cases of appeal or remonstrance to the gen- 
 eral public, pronouncing the candidate for an elective ofiioe 
 unfit for the same, either through incompetency or dis- 
 honesty, and one would naturally expect such a privilege. 
 The electors, and the public generally, are interested in 
 iinowing the character and qualifications of those who ap- 
 ply for their suffrages ; and the public welfare, in that 
 regard, is best promoted by a full and free discussion of 
 all those facts and circumstances in the previous life of the 
 candidate, which are calculated to throw light upon his- 
 
 1 Kershaw «. Bailey, 1 Exch 743; rarnsworth v. Storrs, 5 Cush. 412; 
 Eemington v. Congdon, 2 Pick. 310; York v Pease, 2 Gray, 282; Fairchild 
 V. Adams, 11 Cu'h. 549; Shurtleff c. Stevens, 51 Vt. 501 (31 Am. Eep. 
 698); Haighti). Cornell, 15 Conn. 74 ; O'Donaghue «. McGovern, 23 Wend. 
 26; Wyick v. Aspinwall, 17 N. Y. 190; Chapman?). Calder, 14 Pa. St. 365; 
 McMillan v. Birch, 1 Binn. 178 (2 Am. Dec. 426;) Reld ». DeLorne, 2 
 Brev. 76; Dunn v. Winters, 2 Humph. 612; Lucas v. Case, 9 Bush, 562; 
 Dial®. Holter, 6 Ohio St. 228; Kleizer v. Symmes, 40 Ind. 562; Serva- 
 tins V. Pichel, 34 Wis. 292. 
 
 * Streety v. Wood, 15 Barb. 105; Klrkpatrick ». Eagle Lodge, 26 Kan. 
 384. A report by officers of a corporation to a meeting of its stockholders 
 falls under the same rule. Philadelphia, etc. E. R. Co. v. Quigley, 21 
 How. 202. 
 
 8 Fairman v. Ives, 5 B. &. Aid. 642; Woodward v. Lander, 6 L. & P. 
 548 ; State v. Burnham, 9 N. H. 34 ; Hosmer v. Loveland, 19 Barb. Ill ; 
 Cook V. Hill, 3 Sandf . 341. 
 § 17c 
 
CRITICISM OP OFFICEKS AND CANDIDATES FOR OFFICE. 51 
 
 fitness for the office for which he applies. Where the 
 statements respect only the mental qualification of the can- 
 didate, it has been held that they are privileged. " Talents 
 and qualifications for office are mere matters of opinion, of 
 which the electors are the only competent judges." ^ But 
 where the communication impugns the character of the 
 candidate, it appears that the privilege does not cover the 
 case, and the affirmant makes the statement at his peril, 
 being required by the law to ascertain for himself the 
 truth or falsity of it. A.nd the same rule applies to the 
 deliberations of public meetings, as well as to the state- 
 ments of an individual. In the leading case on this sub- 
 ject^ the court say: " That electors should have a right 
 to assemble, and freely and openly to examine the fitness 
 and qualifications of candidates for public offices, and com- 
 municate their opinions to others, is a position to which I 
 most cordially accede. But there is a wide difference be- 
 tween this privilege and a right irresponsibly to charge a 
 candidate with direct, specific, and unfounded crimes. It 
 would, in my judgment, be a monstrous doctrine to estab- 
 lish that, when a man becomes a candidate for an elective 
 office, he thereby gives to others a right to accuse him of 
 any imaginable crime with impunity. Candidates have 
 rights as well as electors ; and those rights and privileges, 
 must be so guarded and protected as to harmonize one with 
 the other. If one hundred or one thousand men, when as- 
 sembled together, may undertake to charge a man with 
 specific crimes, I see no reason why it should be less crim- 
 inal than if each one should do it individually at different 
 times and places. All that is required in the one case or 
 
 ' Mayrant v. Eichardson, 1 Nott & McCord, 348 (9 Am. Dec. 707J ; 
 Commonwealth v. Clapp, 4 Mass. 163 (3 Am. Dec. 212) ; Commonwealth 
 V. Morris, 1 Va. Cas. 175 (5 Am. Dec. 615) ; Sweeney v. Baker, 13 W. Va. 
 158 (31 Am. Kep. 757) ; Mott v. Dawson, 46 Iowa, 533. But see Bobbins 
 V. Treadway, 2 J. J. Marsh 540 (19 Am. Dec. 152) ; Spiering v. Andrea, 
 45 Wis. 330 (30 Am. Rep. 744). 
 
 * Lewis V. Few, 5 Johns. 1, 35. 
 
 § 17c 
 
52 POLICE KBGULATION OF PERSONAL SECUBITT, 
 
 the other is, not to transcend the bounds of truth. If a 
 man has committed a crime, any one has a right to charge 
 him with it, and is not responsible for the accusation; and 
 can any one wish for more latitude than this ? Can it be 
 claimed as a privilege to accuse ad libitum a candidate with 
 the most base and detestable crimes? There is nothing, 
 upon the record showing the least foundation or pretence 
 for the charges. The accusation, then, being false, the 
 prima facie presumption of law is, that the publication 
 was malicious, and the circumstance of the defendant being 
 associated with others does not per se rebut this presump- 
 tion." This position of the New York court has not only 
 been sustained by later cases in the same State, but it has 
 been followed generally by the other American courts, 
 and it may be considered as the settled doctrine in this 
 country.^ 
 
 § 17c?. Publications through the press. — It has been 
 often urged in favor of the press, that a general and almost 
 unrestricted privilege should be granted the proprietors of 
 newspapers for all statements that might be received and 
 printed in their paper in good faith, which subsequently 
 prove to be false and injurious to some individual, pro- 
 vided it pertain to a matter in which the public may justly 
 be supposed to be interested. This view has of late met 
 with a strong support in Judge Cooley. In criticising an 
 opinion of the New York court to the contrary,* he says: 
 
 1 See King v. Root, 4 Wend. 113 (21 Am. Deo. 102) ; Powers v. Dubois, 
 ITWend. 63; Hunt B.Bennett, 19 N.Y. 173; Hamilton®. Eno, 81 N.Y. 116; 
 Thomas v. Crosswell, 7 Johns. 264 (5 Am. Dec. 269) ; Tillson v. Bobbins, 
 68 Me. 295 (28 Am. Eep. 50) ; Hook v. Hackney, 16 Serg. & K. 886 ; 
 Sweeney v. Baker, 13 W. Va., 158 (31 Am. Eep. 767) ; Foster v. Scripps, 
 39 Mich. 376 (33 Am. Eep. 403) ; Wilson v. Noonan, 35 Wis. 321 ; Gottbeliuet 
 V. Hubachek, 36 Wis. 615; Gove v. Blethen, 21 Min. 80 (18 Am. Eep 380) , 
 Rearick v. Wilcox, 81 111. 77; Russell v. Anthony, 21 Kan. 450 (30 Am- 
 Rep. 436). See Barr v. Moore, 87 Pa. St. 385 (30 Am. Rep. 367.) 
 
 " Hotchkiss V. Oliphant, 2 Hill, 510-513, per Nelson, Ch. J. 
 § 17d 
 
PUBLICATIONS THROUGH THE PRESS. 53 
 
 ' ' If this strong condemnatory language were confined to 
 the cases in which private character is dragged before the 
 public for detraction and abuse to pander to a depraved 
 appetite for scandal, its propriety and justice and the force 
 of its reasons would be at once conceded. But a very 
 large proportion of what the newspapers spread before the 
 public relates to matters of public concern, in which, 
 nevertheless, individuals figure, and must, therefore, be 
 mentioned in any account or discussion. To a great extent 
 also, the information comes from abroad ; the publisher can 
 have no knowledge concerning it, and no inquiries which 
 he could make would be likely to give him more definite in- 
 formation, unless he delays the publication, until it ceases 
 to be of value to his readers. Whatever view the law may 
 take, the public sentiment does not brand the publisher of 
 news as libeler, conspirator or villain, because the 
 telegraphic dispatches transmitted to him from all parts of 
 the world, without any knowledge on his part concerning 
 the facts, are published in his paper, in reliance upon the 
 prudence, care and honesty of those who have charge of the 
 lines of communication, and whose interest it is to be vigi- 
 lant and truthful. The public demand and expect accounts 
 of every important meeting, of every important trial, and 
 of all the events which have a bearing upon trade and 
 business, or upon political affairs. It is impossible that 
 these shall be given in all cases without matters being 
 mentioned derogatory to individuals ; and if the question 
 were a new one in the law, it might be worthy of inquiry 
 whether some line of distinction could not be drawn which 
 would protect the publisher when giving in good faith such 
 items of news as would be proper, if true, to spread before 
 the public, and which he gives in the regular course of his 
 employment, in pursuance of a public demand, and without 
 any negligence, as they come to him from the usual and 
 legitimate sources, which he has reason to rely upon ; at 
 the same time leaving him liable when he makes his columns 
 § 17d 
 
54 POLICE REGULATION OP PERSONAL SECURITY. 
 
 the vehicleof private gossip, detraction and malice." ^ We 
 believe that the law should " protect the publisher when 
 giving in good faith such items of news as would be proper, 
 if true, to spread before the public." But the difficulty is 
 experienced in determining what is proper to be published / 
 in an ordinary newspaper. It seems to us that, whenever 
 an event occurs in which the public generally is justified in 
 demanding information, the published accounts will be cov- 
 ered by the ordinary privilege, which is granted to the in- 
 jurious and false statements of private individuals, when 
 they are made to those who have a legitimate interest in 
 the subject-matter.'' But there is no reason why any 
 special protection should be thrown around the publisher of 
 news. Any such special protection, which cannot in reason 
 be extended to " the village gossiper " would in the main 
 only serve to protect newspaper publishers in the publica- 
 tion of what is strictly private scandal. Except in one 
 large class of cases, in which we think both the press and 
 the individual are entitled to the protection asked for, viz. : 
 in criticisms upon public officials and candidates for office, 
 the general demand of Judge Cooley may be granted, 
 indeed is now granted by the law which denies "that con- 
 ductors of the public press are entitled to peculiar indul- 
 gences and have special rights and privileges." * But the 
 
 >■ Cooley Const. Lim. *454. 
 
 ' See Commonwealth v. Nichols, 10 Met. 259 ; Mason v. Mason, 4 N. H. 
 110 ; Carpenter v. Bailey, 53 N. H. 690 ; Lewis v. Few, 5 Johns. I ; Andres 
 ■0. Wells, 7 Johns. 260 (5 Am. Dec 257) ; Dale v. Lyon, 10 Johns. 447 (6 
 Am. Dec. 346) ; Marten ». Van Shaik, 4 Paige, 479; Sandford v. Bennett, 
 24 N. Y. 20; Hampton v. Wilson, 4 Dev. 468; Parker?;. McQueen, 8 B. 
 Mon. 16; Fowler v. Chichester, 26 Ohio St. 9; Gates v. Kellogg, 9 Ind. 
 506 ; Farr v. Kasco, 9 Mich. 353 ; Wheeler v. Shields, 3 111. 348 ; Cummer- 
 ford V. McAvoy, 15 111. 311 ; Hawkins v. Lumsden, 10 Wis. 369 ; Beardsley 
 X. Brldgman, 17 Iowa, 290. 
 
 3 " The law recognizes no such peculiar rights, privileges or claims to 
 
 Indulgence. They have no rights but such as are common to all. They 
 
 have just the same rights that the rest of the community have and no 
 
 more. They have the right to publish the truth, but no right to publish 
 
 § 17d 
 
PUBLICATIONS THEOUGH THE PRESS. 55 
 
 demands of the press extend beyond the limits set down by- 
 Judge Cooley. The privilege they ask for is intended to 
 furnish protection for all those thrilling accounts of crime 
 and infamous scandal, the publication of which appears to 
 be required by a depraved public taste, but which the 
 thoughtful citizen would rather suppress than give special 
 protection to the publisher. The only two cases in which 
 a change in the existing law of privilege would perhaps be 
 just and advisable, are, first, the public criticism of public 
 officials and political candidates, and, secondly, the reports 
 of failures or financial embarrassments of commercial per- 
 sonages. In the second case, the privilege is granted to 
 individuals, and even to those well-known mercantile agen- 
 cies, when they make private reports to their subscribers of 
 the financial standing of some merchant; ^ but the privilege 
 does not appear to extend to the publication of such items 
 in the newspapers.' 
 
 falsehood to the injury of others with impunity." King ». Boot, 4 Wend. 
 113 (21 Am. Dec. 102). 
 
 > Lewis «. Chapman, 16 N. T. 369 ; Ormsby v. Douglass, 37 N. Y. 477. 
 
 2 ThuS; the reports of a mercantile agency, published and distributed 
 among its subscribers, have been held not to be privileged. Taylor ■». 
 Church, 8 N. Y. 452; Sunderlin v. Bradstreet, 46 N. Y. 188 C7Am. Rep. 
 322) . '' It may be assumed that if any one, having an interest in know- 
 ing the credit and standing of the plaintifEs, or whom the defendants sup- 
 posed and believed to have had such interest, had made the inquiry of the 
 defendants, and the statement in the alleged libel had been made in an- 
 swer to the inquiiT in good faith ; and upon information upon which the 
 •defendants relied, it would have been privileged. This was the case of 
 Ormsby v. Douglass, 37 N. Y. 477. The business of the defendant in 
 that case was of a similar character to that of the present defendants ; 
 and the statement complained of was made orally, to one interested in 
 the information, upon personal application at the office of the defendant 
 who refused to make a written statement. There was no other publica- 
 tion, and it was held that the occasion justified the defendant in giving 
 such information as he possessed to the applicant. 
 
 " In the case at bar, it is not pretended that but few, if any, of the per- 
 sons to whom the 10,000 copies of the libelous publication were trans- 
 mitted, had any interest in the character or pecuniary responsibility of 
 the plaintiffs ; and to those who had no such interest there was no just 
 
56 POLICE KEOULA.TION OF PERSONAL SECURITY. 
 
 The principal inquiry tliat concerns us in the present con- 
 nection is, to what extent privileged communications remain 
 so, when they are published through the public press. The 
 privilege does not extend beyond the necessity which justi- 
 fies its existence. Thus, for example, the law provides for 
 the legal counsellor and advocate a complete immunity from 
 responsibility for anything ho says in the conduct of a 
 cause. The privilege rests upon the nocessity for absolute 
 freedom of speech, in order to insure the attainment of jus- 
 tice between the parties. A publication of his speech will 
 not aid in the furtherance of justice, and hence it is not 
 privileged. But the law favors the greatest amount of 
 publicity in legal proceedings, it being one of the political 
 tenets prevailing in this country, that such publicity is a 
 strong guaranty of personal liberty, and furthers materially 
 the ends of justice. Hence we find that fair, impartial 
 accounts of legal proceedings, which are not ex parte in 
 character, are protected and are recognized as justifiable 
 publications.* The publication is privileged only when it 
 is made with good motives and for justifiable ends.^ Ob- 
 servations or comments upon the proceedings do not come 
 
 occasion or propriety in communicating the information. The defend- 
 ants, in making the communication, assumed the legal responsibility 
 which rests upon all who, without cause, publish defamatory matter of 
 others, that is, of proving the truth of the publication, or responding in 
 damages to the injured party. The communication of the libel, to those 
 not interested in the information, was officious and unauthorized, and, 
 therefore, not protected, although made in the belief of its truth, if It 
 were in point of fact false." Judge Allen in Sunderlin v. Bradstreet, 
 supra. 
 
 J Lewis v. Levy, E. B. & E. 637; Hoare v. Silverlock, 9 C. B. 20; 
 Torrey v. Field, 10 Vt. 353; Stanley v. Webb, 4 Sandf. 21; Fawoett v. 
 Charles, 13 Wend. 473; McBee v. Eulton, 47 Md. 403 (28 Am. Rep. 465); 
 Cincinnati Gazette Co. v. Timberlake, 10 Ohio St. 648. The privilege Is 
 also extended to the publication of investigations ordered by Congress 
 Terry v. Fellows, 21 La. Ann. 375. 
 
 2 Saunders v. Baxter, 6 Heisk. 369. 
 
 § nd 
 
PUBLICATIONS THROUGH THE PRESS. 57 
 
 within the privilege.^ Nor, it seems, do the defamatory 
 speeches come within the privilege thus accorded to the 
 publication of legal proceedings." But ex parte proceedings, 
 and all preliminary examinations, though judicial in char- 
 acter, do not come within the privilege, and are not pro- 
 tected when published in the newspaper. In one case, the 
 court say: " It is our boast that we are governed by that 
 just and salutary rule upon which security of life and char- 
 acter often depends, that every man is presumed innocent 
 of crimes charged upon him, until he is proved guilty. 
 But the circulation of charges founded on ex parte testi- 
 mony, of statements made, often under excitement, by per- 
 sons smarting under real or fancied wrongs, may prejudice 
 the public mind, and cause the judgment of conviction to be 
 passed long before the day of trial has arrived. When that 
 day of trial comes, the rule has been reversed, and the 
 presumption of guilt has been substituted for the presump- 
 tion of innocence. The chances of a fair and impartial 
 trial are diminished. Suppose the charge to be utterly 
 groundless. If every preliminary exparte complaint, which 
 may be made before a police magistrate, may with entire 
 impunity be published and scattered broadcast over the 
 land, then the character of the innocent, who may be the 
 victim of a conspiracy, or of charges proved afterwards to 
 have arisen entirely from misapprehension, may be cloven 
 down without any malice on the part of the publisher. The 
 refutation of slander, in such cases, generally follows its 
 propagation at distant intervals, and brings often but an 
 imperfect balm to wounds which have become festered, and 
 perhaps incurable. It is not to be denied that occasionally 
 
 » Stiles V. Nokes, 7 East, 493; Clark v. Binney, 2 Pick. 112; Common, 
 wealth V. Blanding, 3 Pick. 304 (15 Am. Dec. 214) ; Pittock v. O'Neill, 63 
 Pa, St. 253 (3 Am. Eep. 544); Scripps «. Reilly, 38 Mich. 10; Storey v. 
 WaUace, 60 111. 51. 
 
 2 Saunders v. Mills, 6 Bing. 213; Flint v. Pike, 4 B. & C. 473. See 
 Stanley v. Webb, 4 Sandf. 21. 
 
 § nd 
 
58 POLICE REGULATION OF PERSONAL SECUKITT. 
 
 the publication of such proceedings is productive of good, 
 and promotes the ends of justice. But in such cases, the 
 publisher must find his justification, not in privilege, but in 
 the truth of the charges." ^ 
 
 But the English courts have lately shown an inclination 
 to depart from this doctrine, particularly in relation to the 
 publication of police reports. In a late case," Lord Camp- 
 bell indorses and acts upon the following quotation from an 
 opinion of Lord Denman, expressed before a committee of 
 the House of Lords in 1843 : " T have no doubt that (police 
 reports) are extremely useful for the detection of guilt by 
 making facts notorious, and for bringing those facts more 
 correctly to the knowledge of all parties in unraveling the 
 truth. The public, I think, are perfectly aware that those 
 proceedings are ex parte, and they become more and more 
 aware of it in proportion to their growing intelligence ; they 
 know that such proceedings are only in the course of trial, 
 and they do not form their opinions until the trial is had. 
 Perfect publicity in judicial proceedings is of the highest im- 
 portance in other points of view, but in its effect upon 
 character, I think it desirable. The statement made in open 
 court will probably find its way to the ears of all in whose 
 good opinion the party assailed feels an interest, probably 
 in an exaggerated form, and the imputation may often rest 
 upon the wrong person ; both these evils are prevented by. 
 correct reports." The publication of police reports, or of 
 any other preliminary proceedings of a judicial nature, will 
 bring the news to the ears of countless numbers of strangers, 
 who, not knowing the party accused, will not likely be 
 prejudiced in his favor, and certainly would not have heard 
 or have taken any interest in the rumor of the man's guilt, 
 
 ' Stanley v. Webb, 4Sandf. 21. See Usher v. Severance, 21 Me. 9 (37 
 Am. Dec. 33); Matthews v. Beach, 5 Sandf. 259; Cincinnati Gazette 
 Co. V. Timberlake, 10 Ohio St. 548; Duacan o. Thwaites, 8 B. & C. 556; 
 Charlton v. Watton, 6 C. & P. 385. 
 
 ' Lewis V. Levy, E. B. & E. 537. 
 
 § nd 
 
SECURITY TO REPUTATION — MALICIOUS PROSECUTION. 59 
 
 Isut for the publication. The readers of these reports, who 
 are inclined to receive them in the judicial frame of mind, 
 suggested by Lord Denman, are not numerous, and very 
 few will dismiss from their minds all suspicions against the 
 innocence of the accused when there has been a failure to 
 convict him of the charge. Even when there has been a 
 trial of the defendant, and the jury has brought in a verdict 
 of acquittal, the publication of the proceedings is calculated 
 to do harm to the reputation of the defendant. But the 
 public welfare demands the freest publicity in ordinary legal 
 proceedings, and the interest of the individual must here 
 ^ive way. On the other hand, there is no great need for 
 the publication of the preliminary examinations. In only a 
 few cases can the publication prove of any benefit to the 
 public. The public demand being small, the sacrifice of 
 private interest is not justified. 
 
 Not only is the publication of the proceedings of a court 
 of law privileged ; but the privilege extends to the publica- 
 tion in professional and religious journals of proceedings had 
 before some judicial body or council, connected with the 
 professional or religious organization, which the publishing 
 paper represents.^ And so likewise would be privileged 
 the publication of legislative proceedings, and the proceed- 
 ings of congressional and legislative investigating commit- 
 tees.^ 
 
 Section 18. Security to reputation — Malicious prosecution. 
 18a. Advice of counsel, how far a defense. 
 
 § 18 Security to reputation — Malicious prosecution — 
 
 Although a prosecution on the charge of some crime may 
 result in a verdict of acquittal, even where the trial would 
 furnish to a judicial mind a complete vindication, by remov- 
 
 1 Burrows, v. Bell, 7 Gray, 301 ; Shurtleff v. Stevens, 61 Vt. 501 (31 
 Am, Eep. 698). 
 * Terry ». Fellows, 21 La. Ann. 375. 
 
 § 18 
 
60 POLICE REGULATION OP PERSONAL SECORITY. 
 
 ing all doubts of the innocence of the accused, it will 
 nevertheless leave its mark upon the reputation. Even a 
 groundless accusation will soil one's reputation. But it is 
 to the interest of the public, as well as it is the right of the 
 individual, that resort should be made to the courts for 
 redress of what one conceives to be a wrong. While a 
 litigious spirit is to be deprecated, since in the institution of 
 legal order the right to self-defense is taken away, excej)t 
 as an immediate preventive of attacks upon person and 
 property, it is not only expedient but just, that when a 
 man believing that he has a just claim against the defend- 
 ant, or that this person has committed some act which 
 subjects him to a criminal prosecution, sets the machinery 
 of the law in motion, he should not be held responsible for 
 any damage that might be done to the person prosecuted, in 
 the event of his acquittal. The good faith of the prose- 
 cutor should shield him from liability. Any other rule would 
 operate to discourage to a dangerous degree the prosecution 
 of law-breakers, and hence it has been recognized as a wise 
 limitation upon the right of security to reputation. But the 
 interests of the public do not require an absolute license 
 in the institution of groundless prosecutions. The protec- 
 tion of privilege is thrown around only those who in good 
 faith commence the prosecution for the purpose of securing 
 a vindication of the law, which they believe to have beea 
 violated. Hence we find that the privilege is limited, and, 
 as it is succinctly stated by the authorities, in order that 
 an action for malicious prosecution, in which the prose- 
 cutor may be made to sufi'er in damages, may be 
 sustained, three things must concur : there must be an 
 acquittal of the alleged criminal, the suit must have been 
 instituted without probable cause, and prompted by malice. 
 A final acquittal is necessary, because a conviction would 
 be conclusive of his guilt. And even where he is convicted 
 in the court below, and a new trial is ordered by the 
 superior court for error, the conviction is held to be conclus- 
 § 18 
 
SECDRITT TO REPUTATION MALICIOUS PROSECUTION. 61 
 
 Ive proof of the existence of probable cause.^ But an 
 acquittal, on the other hand, does not prove the want of 
 probable cause, does not even raise the prima facie pre- 
 sumption of a want of probable cause. Probable cause, as 
 defined by the Supreme Court of the United States, is " the 
 existence of such facts and circumstances as would excite 
 belief in a reasonable mind, acting on the facts within the 
 knowledge of the prosecutor, that the person charged was 
 guilty of the crime, for which he was prosecuted."^ 
 
 The want of probable cause cannot be inferred ; it must 
 be proven affirmatively and independently of the presence 
 of actual malice. The plainest proof of actual malice will 
 not support an action for malicious prosecution, if there be 
 probable ciause. With probable cause, the right to institute 
 the prosecution is absolute, and the element of malice does 
 not affect it.* But when it has been shown that the defend- 
 ant in the prosecution has been acquitted and that the suit 
 had been instituted without probable cause, the malice need 
 not be directly and affirmatively proved. It may be infer- 
 red from the want of probable cause. The want of probable 
 cause raises the prima facie presumption of malice, and 
 
 1 Withara v. Gowen, 14 Me. 362; Payson v. Caswell, 22 Me. 212; Whit- 
 aey v. Peckham, 15 Mass. 242; Bacon v. Towne, 4 Cush. 217; Kirpatrick 
 V. Kirkpatrick, 39 Pa. St. 288; Griffs v. Sellars, 4 Dev. & Bat. 176. 
 
 2 Wheeler v. Nesbit, 24 How. (IT. S.) 645. See Gee v. Patterson, 63 
 Me. 49; Barron v. Mason, 31 Vt. 189; Mowry v. Whipple, 8 R. I. 360 
 Stone V. Stevens, 12 Conn. 219; Carl v. Ayres, 53 N. Y. 13; Parnam v 
 Peeley, 55 N. Y. 551; Pagnan B.Knox, 65N. Y. 525; Wlnebiddle v. Porter- 
 field, 9 Pa. St. 137; Boyd». Cross, 36 Md. 194; Spengle v. Davy, 15 Gratt 
 381; Braveboy v. Cockfleld, 2 McMul. 270; Eaulston v. Jackson, 1 Sneed, 
 128; Paris «. Starke, 3 B. Mon. 4; Collins ». Hayte, 60 111. 353; Galla- 
 way t). Burr, 32 Mich. 332; Lawrence v. Lanning, 4 Ind. 194; Shaul a 
 Brown, 28 Iowa, 57 ( 4 Am, Kep. 151) ; Bauer «. Clay, 8 Kan. 580. 
 
 ' Williams v. Taylor, 6 Bing. 183; Cloon v Gerry, 18 Gray 201 ; Heyne 
 V. Blair, 62 N. Y, 19 ; Travis i>. Smith, 1 Pa. St. 234 ; Bell v. Pearcy, 5 Ired. 
 83; Hall v. Hawkins, 5 Humph. 357; Israel ». Brooks, 23 111. 676; King©. 
 Ward, 77 111. 603; Mitchinson v Cross, 68 111. 366; Callahan v. Caffarati, 
 39 Mo. 136 ; Sappinglon v. Watson, 50 Mo. 88 ; Malone v. Murphy, 2 
 Kan. 250. 
 
 § 18 
 
62 POLICE REGULATION OF PEESONAL SECURITY. 
 
 throws upon the prosecutor the burden of proving that he 
 was not actuated by malice in the commencment of the 
 prosecution.^ But this presumption may be rebutted by the 
 presentation of facts, which indicate that the prosecutor was 
 actuated solely by the laudable motives of bringing to jus- 
 tice one whom he considers a criminal. The want of 
 probable cause is not inconsistent with perfect good faith'. 
 The prosecutor may have been honestly mistaken in the 
 strength of his case. But when a man is about to institute 
 a proceeding which will do irreparable damage to a 
 neighbor's reputation, however it may terminate, it is but 
 natural that he should be required to exercise all reasonable 
 care in ascertaining the legal guilt of the accused. As it 
 was expressed in one case:^ " Every man of common infor- 
 mation is presumed to know that it is not safe in matters 
 of importance to trust to the legal opinion of any but 
 recognized lawyers ; and no matter is of more legal import- 
 ance than private reputation and liberty. When a person 
 resorts to the best means in his power for information, it 
 will be such a proof of honesty as will disprove malice and 
 operate as a defense proportionate to his diligence." In 
 order, therefore, that the prosecutor may, where a want of 
 probable cause has been established against him, claim to 
 have acted in good faith and thus screen himself from lia- 
 bility, he must show that he consulted competent legal 
 counsel, and that the prosecution was instituted in reliance 
 upon the opinion of counsel that he had a good cause of 
 action. 
 
 1 Merriam v. Mitchell, 13 Me. 439; Mo wry v. Whipple, 8 E. I. 860 j 
 Closson V. Staples ; 42 Vt. 209 ; Pangburn v. Bull, 1 Wend. 345 ; McKewn 
 V. Hunter, 30 N. Y. 624; Dietz v. Langfltt, 63 Pa. St. 234; Cooper v. 
 Utterbach, 37 Md. 282 ; Flickinger v. Wagner, 46 Md. 681 ; Ewing v. San- 
 ford, 19 Ala. 605; Blass v. Gregor, 15 La. Ann. 421; White v. Tucker, 16: 
 Ohio St. 468 ; Ammerman v. Crosby, 26 Ind. 461 ; Harpham v. Whitney, 77 
 111.32; HoUidayi). Sterling, 62 Mo. 321; Harkraders. Moore, 44 Cal.144. 
 
 2 Campbell, J. in Stanton v. Hart, 27 Mich. 639. 
 
 § 18 
 
ADVICE OF COUNSEL, HOW FAR A DEFENSE. 63 
 
 § 18ff. Advice of counsel, how far a defense. — It is 
 remarkable with what uncertainty the books speak of the 
 manner, in which the advice of counsel constitutes a defense 
 to the action for malicious prosecution. Some of the cases 
 hold that it is proof of probable cause ; ' some maintain that it 
 disproves malice, in most cases imposing no limitation upon 
 its scope, ^ while others, and it is believed the majority of 
 cases, refer to it as establishing both the absence of malice 
 and the presence of a probable cause. ^ If the position of 
 these courts is correct, which hold that the advice of coun- 
 sel establishes the existence of probable cause, then the 
 advice of counsel will constitute an absolute bar to all ac- 
 tions for malicious prosecution, whenever there has been a 
 
 1 See Olmstead v. Partridge, 16 Gray, 383 ; Besson v. Southard, 10 N. 
 Y. 237; Laughlin V. Clawson, 27 Pa. St. 330; Fisher v. Forrester, 33 Pa. 
 St. 501; Ross V. Innis, 26 111. 259; Potter ». Sealey, 8 Cal. 217; Levy v. 
 Brannan, 39 Cal. 485. Mr. Cooley, in his work on Torts, p. 183, says : 
 " A prudent man is, therefore, expected to take such advice Cof counsel), 
 and vrhen he does so, and places all the facts before his counsel, and acts 
 upon his opinion, proof of the fact makes out a case of probable cause, 
 provided the disclosure appears to have been full and fair, and not to 
 have withheld any of the material facts." 
 
 ' Snow V. Allen, 1 Stark. 409; Sommer v. Wilt, i Serg. &E. 20; Dav- 
 enport V. Lynch, 6 Jones L. 545; Stanton v. Hart, 27 Mich. 539; Murphy 
 V. Larson, 77 El. 172 ; Williams v. Van Meter, 8 Mo. 339 ; Center v. 
 Spring, 2 Clarke, 393 ; Eover v. Webster, 3 Clarke, 502. 
 
 3 See Soule v. Winslow, 66 Me. 447; Bartlett v. Brown, 6 E. I. 37 
 Ames V. Eathbun, 55 Barb. 194; Walter v. Sample, 25 Pa. St. 276 
 Turner v. Walker, 3 G. & J. 380; Gould v. Gardner, 8 La. Ann. 11 
 Phillips V. Bonham, 16 La. Ann. 387; Lemay v. Williams, 32 Ark. 166 
 Wood V. Weir, 5 B. Men. 544; Wicker v. Hotchkiss, 62 111. 107; Davie o. 
 Wisher, 72 111. 262; Wilkinson v. Arnold, 13 Ind. 45; Bliss v. Wyman, 7 
 Cal. 257. In the case of Blunt v. Little, 3 Mason, 102, Mr. Justice Story 
 said : " It is certainly going a great way to admit the evidence of any 
 counsel that he advised a suit upon a deliberate examination of the facts, 
 for the purpose of repelling the imputation of malice and establishing probable 
 cause. My opinion, however, is that such evidence is admissible." So, 
 also, in Walter v. Sample, 25 Pa. St. 275, we find the law stated thus : 
 "Professors of the law are the proper advisers of men in doubtful cir- 
 cumstances, and their advice, when fairly obtained, exempts the party who 
 acts upon it from the imputation of proceeding maliciously and without 
 probable ca^lse. 
 
 § 18a 
 
64 POLICR REGULATION OF PERSONAL SECUKITT. 
 
 full and fair disclosure of all the facts within the knowledge 
 of the prosecutor; and the proof of actual malice as the 
 cause of the prosecution will not render him liable, not even 
 where the procurement of professional opinion was to furn- 
 ish a cloak for his malice, or as a matter of precaution, to 
 learn whether it was safe to commence proceedings. But 
 probable cause does not rest upon the sincerity of the 
 prosecutor's belief, nor upon its reasonableness, as shown 
 by facts which are calculated to influence his judgment 
 peculiarly, and not the judgment of others. It must be 
 established by facts, which are likely to induce any reason- 
 able man to believe that the accused is guilty. If probable 
 cause depends upon the honest reasonable belief of the 
 prosecutor in the guilt of the accused, it is certainly based 
 upon reasonable grounds, if his legal adviser tells him that 
 he has a good cause of action. But his belief does not 
 enter into the determination of the question of probable 
 cause. Although his honest belief in the guilt of the ac- 
 cused is necessary to shield him from a judgment for ma- 
 licious prosecution, it is not because such belief is necessary 
 to establish probable cause, but because its absence proves 
 that the prosecution was instituted for the gratification 
 of his malice. The opinion of counsel can not , supplant 
 the judgment of the court as to what is probable cause, 
 and such would be the effect of the rule, that the advice of 
 counsel establishes probable cause. As Mr. Justice Story 
 said : ' ' What constitutes a probable cause of action is, 
 when the facts are given, matter of law upon which 
 the court is to decide ; and it can not be proper to intro- 
 duce certificates of counsel to establish what the law is."^ 
 The better opinion, therefore, is that the advice of coun- 
 sel only furnishes evidence of his good motives, in rebuttal 
 to the inference of malice from the want of probable cause. 
 It does not constitute a conclusive presumption of good 
 
 1 Blunt V. Little, 3 Mason, 102. 
 § 18a 
 
ADVICE OP COUNSEL, HOW FAR A BEPENSE. 65 
 
 faith on the part of the prosecutor. If, therefore, there 
 are facts, which establish the existence of malice, and 
 show that the procurement of professional opinion was to 
 cloak his malice, or as a matter of precaution to learn 
 whether it was safe to commence proceedings, the defense 
 will not prevail, and the prosecutor will, notwithstanding, 
 he held liable.^ 
 
 1 Burnap v. Albert, Taney, 344; Ames v. Eathbun, 65 Barb. 194; Klm- 
 ■ball V. Bates, 50 Me. 308; Brown v. Bandall, 36 Conn. 56; Prough v. En- 
 triken, 11 Pa. St. 81; Pisher v. Forrester, 33 Pa. St. 501; Schmidt v. 
 "Weldman, 63 Pa. St. 173; Davenport v. Lynch, 6 Jones L. 545; Glascock 
 V. Bridges, 15 La. Ann. 672; Kingi;. Ward, 77 111. 603; Eover v. Webster, 
 S Clarke, 502 ; Chapman v. Dodd, 10 Minn. 350. In Snow v. Allen, 1 
 Stark. 409, one of the earliest cases in which the advice of counsel was 
 set up as a defense, Lord Ellenborough inquired: " How can it be con- 
 tended here that the defendant acted maliciously? He acted ignor- 
 antly. * * * He was acting under what he thought was good advice, it 
 was unfortunate that his attorney was mislead by Higgin's Case (Cro. 
 Jac. 320) ; but unless you can show that the defendant was actuated by 
 some purposed malice, the plaintiff can not recover." In Sharpe v. 
 Johnstone (59 Mo. 677; s.c. 76 Mo. 660'), Judge Hough said (76 Mo.) 674: 
 "Although defendants may have communicated to counsel learned in the 
 law, all the facts and circumstances bearing upon the guilt or innocence 
 of the plaintiff, which they knew or by any reasonable diligence could 
 have ascertained, yet. If, notwithstanding the advice of counsel, they be- 
 lieved that the prosecution would fail, and they were actuated in com- 
 mencing said prosecution, not simply by angry passions or hostile 
 feelings, but by a desire to injure and wrong the plaintiff, then most cer- 
 tainly they could not be said to have consulted counsel in good faith, and 
 the jury would have been warranted in finding that the prosecution was 
 malicious." See the annotation of the author to Sharpe v. Johnstone, in 
 21 Am. Law. Beg. (N. s.) 682. 
 
 5 § 18a 
 
CHAPTBE III. 
 
 PERSONAL LIBEETY. 
 
 § 30. Personal liberty — How guaranteed. — It is alto- 
 gether needless in this connection to indulge in a panegyric 
 upon the blessings of guaranteed personal liberty. The 
 love of liberty, of freedom from irksome and unlawful 
 restraints, is implanted in every human breast. In the 
 American Declaration of Independence, and in the bills of 
 rights of almost every State constitution, we find that per- 
 sonal liberty is expressly guaranteed to all men equally. 
 But notwithstanding the existence of these fundamental 
 and constitutional guaranties of personal liberty, the as- 
 tounding anomaly of the slavery of an entire race in more 
 than one-third of the States of the American Union, during 
 three-fourths of a century of national existence, gave the 
 lie to their own constitutional declarations, that " aZZ men 
 are endowed by their Creator, with certain]alienable rights, 
 among which are the right to life, liberty, and the pursuit 
 of happiness." But, happily, this contradiction is now a 
 thing of the past, and in accordance with the provisions of 
 the thirteenth amendment to the constitution of the Unite3 
 States, it is now the fundamental and practically unchange- 
 able law of the land, that " neither slavery nor involuntary 
 servitude, except as a punishment for crime whereof the 
 party shall have been duly convicted, shall exist within the 
 United States, or any place subject to their jurisdiction.^ 
 
 But to a practical understanding of the effect of these 
 constitutional guaranties, a clear idea of what personal 
 liberty consists is necessary. It is not to be confounded 
 with a license to do what one pleases. Liberty, according 
 
 1 U. S. Const. Amend., art. XIII. 
 § 30 (66) 
 
PEESONAI, LIBERTY HOW GUARANTEED. 67 
 
 to Montesquieu, consists " only in the power of doing what 
 we ought to will, and in not being constrained to do what 
 we ought not to will." No man has a right to make such 
 a use of his liberty as to commit an injury to the rights of 
 others. His liberty is controlled by the oft quoted maxim, 
 sic utere tuo, ut alienum non Icedas. Indeed liberty is that 
 amount of personal freedom, which is consistent with a 
 strict obedience to this rule. " Liberty," in the words of 
 Mr. Webster, " is the creature of law, essentially different 
 from that authorized licentiousness that trespasses on right. 
 It is a legal and refined idea, the offspring of high civiliza- 
 tion, which the savage never understood, and never can 
 understand. Liberty exists in proportion to wholesome 
 restraint ; the more restraint on others to keep off from us, 
 the more liberty we have. It is an error to suppose that 
 liberty consists in a paucity of laws. If one wants few 
 laws, let him go to Turkey. The Turk enjoys that blessing. 
 The working of our complex system, full of checks on leg- 
 islative, executive and judicial power, is favorable to liberty 
 and justice. Those checks and restraints are so many 
 safeguards set around individual rights and interests. 
 That man is free who is protected from injury." ^ While 
 liberty does not consist in a paucity of laws, still it is only 
 consistent with a limitation of the restrictive laws to those 
 which exercise a wholesome restraint. " That man is free 
 who is protected from injury," and his protection involves 
 necessarily the restraint of other individuals from the com- 
 mission of the injury. In the proper balancing of the con- 
 tending interests of individuals, personal liberty is secured 
 and developed ; any further restraint is unwholesome and 
 subversive of liberty. As Herbert Spencer has expressed 
 it, "every man may claim the fullest liberty to exercise 
 his faculties compatible with the possession of like liberty 
 by every other man." * 
 
 1 Webster's Works, vol. II., p. 393. 
 ' Social Statics, p. 94. 
 
 § 30 
 
68 PERSONAL LIBERTY. 
 
 The constitutional guaranties are generally unqualified, 
 and a strict construction of them would prohibit all limitations 
 upon liberty, if any other meaning but the limited one here 
 presented were given to the word. But these guaranties 
 are to be liberally construed, so that the object of them 
 may be fully attained. They do not prohibit the exercise 
 of police power in restraint of licentious trespass upon 
 the rights of others, but the restrictive measures must be 
 kept within these limits. " Powers, which can be justified 
 only on this specific ground (that they are police regu- 
 lations), 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 ex- 
 ercise in the particular case, notwithstanding the language 
 of the prohibition would otherwise include it." ^ 
 
 The restrictions upon personal liberty, permissible under 
 these constitutional limitations, are either of a public or 
 private nature. In consequence of the mental and physical 
 disabilities of certain classes, in the law of domestic rela- 
 tions, their liberty is more or less subjected to restraint, the 
 motive being their own benefit. These restraints are of a 
 private nature, imposed under the law by private persons 
 who stand in domestic relation to those whose liberty is 
 restrained. This subject will be discussed in a subsequent 
 connection.* In this connection we are only concerned 
 with those restraints which are of a public nature, i.e., 
 those which are imposed by government. They may be 
 subdivided under the following headings: 1. The police 
 
 1 Christiancy, J., in Peoples. Jackson &Mich. Plank Eoad Co., 9 Mich. 
 285. 
 
 = See post, ch. 12, 13, 14, and §§ 149-178. 
 
 § 30 
 
PERSONAL LIBERTY — HOW GUARANTEED. 69 
 
 control of the criminal classes. 2. Tlie police control of 
 dangerous classes, other than by criminal prosecutions. 
 3. The regulation of domicile and citizenship. 4. Police 
 control of morality and religion. 5. Police regulation of 
 the freedom of speech and of the press. 6. Police regula- 
 tion of trades and professions. 
 
 § 30 
 
CHAPTER IV- 
 
 POLICE CONTROL OF CETMENAL CLASSES. 
 
 Section 31. The effect of crime on the rights of the criminal. 
 31a. Due process of law. 
 316. Bills of attainder. 
 31c. Expost facto law. 
 
 32. Preliminary confinement to answer for a crime. 
 
 33. What constitutes a lawful arrest. 
 33o. Arrest without warrant. 
 
 34. The trial of the accused. 
 3ia. The trial must be speedy. 
 346. The trial must be public. 
 34c. Accused entitled to counsel. 
 
 Sid. Indictment by grand jury or by information. 
 
 84e. The plea of defendant. 
 
 34/. Trial by jury — Legal jeopardy. 
 
 35. Control over criminals in the penitentiary. 
 35a. Convict lease system. 
 
 § 31. The effect of crime on the rights of the crim- 
 inal. — The commission of crime, in the discretion of the 
 government, subjects all rights of the criminal to the possi- 
 bility of forfeiture. Life, liberty, political rights, statutory 
 rights, relative rights, all or any of them may be forfeited 
 by the State, in punishment of a crime. When a man com- 
 mits a crime he forfeits to a greater or less extent his 
 right of immunity from harm. The forfeiture for crime is 
 usually confined to life, liberty and property, and political 
 rights, although all rights in the wisdom of the legislature 
 may be subjected to forfeiture, and the forfeiture of liberty 
 is the most common. 
 
 § 31a. Due process of law. — But the forfeiture of rights 
 is limited and controlled hv constitutional restrictions, and it 
 § 31a (70) 
 
DUE PEOCESS OF LAW. 71 
 
 may be stated as a general proposition, that such a forfeiture, 
 as a punishment for crime, can only be effected after a judi- 
 cial examination and a conviction of the crime charged. In 
 the Magna Charta, in the charter of Henry III., in the 
 Petition of Right, in the Bill of Rights, in England, and in 
 this country in all the constitutions, both State and national, 
 it is substantially provided that no man shall be deprived of 
 his life, liberty, or property, unless by the judgment of his 
 peers or the law of the land. In some State constitutions, 
 the clause " without due process of law " is employed in 
 the place of " the judgment of his peers or the law of the 
 land ; ' ' but the practical effect is the same in all cases, 
 whatever may be the exact phraseology of this constitutional 
 provision.^ Perhaps the scope of the limitation cannot be 
 better explained than by the words of Mr. Webster : " By 
 the law of the land is most clearly intended the general 
 law ; a law which hears before it condemns ; which proceeds 
 upon inquiry, and renders judgment only after trial. The 
 meaning is that every citizen shall hold his life, liberty, 
 property and immunities under the protection of the gen- 
 eral rules which govern society. Everything which may pass 
 under the form of an enactment is not therefore to be con- 
 sidered the law of the land. If this were so, acts of 
 attainder, bills of pains and penalties, acts of confiscation, 
 acts reversing judgments, and acts directly transferring one 
 man's estate to another, legislative judgments, decrees and 
 forfeitures in all possible forms, would be the law of the 
 land. Such a strange construction would render constitu- 
 tional provisions of the highest importance completely inop- 
 erative and void. It would tend directly to establish the 
 union of all powers in the legislature. There would be no 
 general permanent law for courts to administer or men to 
 live under. The administration of justice would be an 
 empty form, an idle ceremony. Judges would sit to exe- 
 
 1 Cooley Const. Lim. *352, *353. 
 
 § 31a 
 
72 POLICE CONTROL OF CRIMINAL CLASSES. 
 
 cute legislative judgments and decrees, not to declare the 
 law or administer the justice of the country." ^ 
 
 § 316. Bills of attainder. — A further limitation is im- 
 posed by the constitution of the United States, which prohib- 
 its the enactment of bills of attainder by Congress andhy the 
 leo-islaturcs of the several States.* A bill of attainder is a 
 legislative conviction for crime, operating against a particu- 
 lar individual, or some one or more classes of individuals. 
 According to the ancient English meaning of the term, it 
 included only those legislative enactments, which pro- 
 nounced the judgment of death. But a broader significa- 
 tion is given to the word in this constitutional limitation, 
 and it includes all attempts on the part of Congress to inflict 
 punishment and penalties upon individuals for alleged 
 crimes of every description. The term bill of attainder is 
 now used to include all bills of pains and penalties. "I 
 think it will be found that the following comprise those 
 essential elements of bills of attainder, in addition to the 
 one already mentioned (vvrhich was that certain persons were 
 declared attainted and their inheritable blood corrupted), 
 which distinguish them from other legislation, and which 
 made them so obnoxious to the statesmen who organized 
 our government: 1. They were convictions and sentences 
 pronounced by the legislative department of the govern- 
 ment, instead of the judicial. 2. The sentence pronounced 
 and the punishment inflicted were determined by no pre- 
 vious law or fixed rule. The investigation into the guilt of 
 the accused, if any such were made, was not necessarily or 
 generally conducted in his presence or that of his counsel, 
 and no recognized rule of evidence governed the inquiry." * 
 
 1 Dartmouth College Case, i Wheat. 519 ; Webster's Works, vol. V., 
 p. 487. For a fall and exhaustive discussion and treatment of this con- 
 stitutional limitation, see Cooley Const. Lim. *351-*413. 
 
 * U. S. Const., art. I., §§ 9, 10. 
 
 " MUler, J., in Ex parte Garland, 4 Wall. 333. 
 
 § 316 
 
BILLS OF ATTAINDER. 73 
 
 Since the formation of the Union, there has happily been 
 but one occasion when there was any inducement to the 
 enactment of such legislative judgments and convictions, 
 and that was at the close of the late civil war. Congress 
 provided by statute that in order that one may enter upon 
 the performance of the duties of any office of trust or profit 
 under the government of the United States, excepting the 
 President of the United States, he shall theretofore take and 
 subscribe an oath that he had not aided or given countenance 
 to the rebellion against the United States. A second act 
 was passed, prescribing a similar oath to be taken by candi- 
 dates for admission to practice in any of the courts of the 
 United States. The Supreme Court held that the latter 
 statute was void, because it offended this constitutional 
 provision, prohibiting the enactment of bills of attainder.^ 
 Inasmuch as the right to hold a public office is a privilege 
 and not a right, the former act of Congress, which provided 
 the so called " iron-clad " oath of office, would not be un- 
 constitutional, unless the qualifications of the candidates 
 for office, to which the statute applied, are stipulated in the 
 constitution. Congress, or a legislature, has no power to 
 change the qualifications for office, where they have already 
 been determined by the constitution.'* It is, probably, for 
 this reason that the office of President was excluded from 
 the operation of this statute. In article I., section 1, of the 
 constitution of the United States, the oath of office is pre- 
 scribed which the President is required to take before 
 entering upon the duties of his office. 
 
 Similar legislation was enacted in some of the States. 
 In Missouri, the constitution of '65 contained a clause, 
 which required a similar oath to be taken by all voters, 
 officers of State, county, town, or city, to be elected or 
 already elected ; attorneys at law, in order to practice law ; 
 clergymen, in order to teach, and preach or solemnize mar- 
 
 1 Ex parte Garland, i Wall. 333 ; Drehman v. Stifle, 8 Wall. 595. 
 
 2 See Cooley Const. Lim. *6i, note. 
 
 § 316 
 
74 POLICE CONTEOL OF CRIMINAL CLASSES. 
 
 riages ; professors and teachers of educational institutions, 
 etc. Although the State court, as it was then constituted, 
 did not hesitate to pronounce these provisions valid, the 
 Supreme Court of the United States has declared them 
 void as being in violation of the national constitution, which 
 prohibits the enactment of bills of attainder by the States.^ 
 
 § 31c. Ex post facto laws. — Another constitutional pro- 
 vision, intended to furnish to individual liberty ample protec- 
 tion against the exercise of arbitrary power, prohibits the 
 enactment of ex post facto laws by Congress as well as by 
 the State legislatures.* The literal meaning of the pro- 
 hibition is that no law can be passed which wJU apply to 
 and change the legal character of an act already done. 
 But at a very early day in the history of the Constitution, 
 the clause was given a more technical and narrow construc- 
 tion, which has ever since limited the application of the pro- 
 vision. In the leading case,^ Judge Chase explains the 
 meaning of the term ex post facto in the following language : 
 " The prohibition in the letter is not to pass any law con- 
 cerning or after the fact ; but the plain and obvious meaning 
 
 1 Cummings v. Missouri, i Wall. 277; s. c. State v. Cummings, 36 Mo. 
 263. The constitutional provision was likewise upheld in the following 
 cases: State v. Garesche, 36 Mo. 256, in its application to an attorney; 
 State V. Bernoudy, 36 Mo. 279, in the case of the recorder of St. LouiSi 
 In State v. Adams, 44 Mo. 570, after the Cummings Case had been de- 
 cided by the Supreme Court of the United States against the State, and 
 after a 'so a change in the personnel of the State court, a legislative act, 
 which declared the Board of Curators of St. Charles College deprived of 
 their office, for failure to take the oath of loyalty, was held to be void as 
 being a bill of attainder. A statute of this kind was likewise passed by 
 the legislature of West Virginia, and although sustained at first by the 
 Supreme Court of the State (Beirne v. Brown, 4 W. Va. 72 ; Pierce v. 
 Earskadon, 4 W. Va. 234), it was subsequently held by the Supreme 
 Court of the State, and of the United States, that the act was unconsti-r 
 tutional. Kyle v. Jenkins, 6 W. Va. 371 ; Lynch v. Hoffman, 7 W. Va. 
 653; Pearce v. Kirskadon, 16 Wall. 234. 
 
 " U. S. Const., art. I., §§9 and 10. 
 
 » Calder v. Bull, 3 Dall. 386, 390. 
 § 31c 
 
EX POST FACTO LAWS. 75 
 
 and intention of tiie prohibitioa is this : that the legislatures 
 of the several States shall not pass laws after a fact done by 
 a subject or citizen, which shall have relation to such factj 
 and punish him for having done it. The prohibition, con- 
 sidered in this light, is an additional bulwark in favor of the 
 personal security of the subject, to protect his person from 
 punishment by legislative acts having a retrospective oper- 
 ation. I do not think it was inserted to secure the citizen in 
 his private rights of either property or contracts. The pro- 
 hibitions not to make anything but gold and silver a tender 
 in payment of debts, and not to pass any law impairing the 
 obligation of contracts, were inserted to secure private 
 rights; but the restriction not to pass any ex post facto law 
 ■was to secure the person of the subject from injury or pun- 
 ishment, in consequence of such law. If the prohibition 
 against making ex post facto laws was intended to secure 
 personal rights from being affected or injured by such laws, 
 and the prohibition is sufficiently extensive for that object, 
 the other restraints I have enumerated were unnecessary, 
 and therefore improper, for both of them are retrospective. 
 " I will state what laws I consider ex post facto laws, 
 within the words and the intent of the prohibition. 1st. 
 Every law that makes an action, done before the passing of 
 the law, and which was innocent when done, criminal, and 
 punishes such action. 2d. Every law that aggravates a 
 crime, or makes it greater than it was when committed. 
 3d. Every law that changes the punishment, and inflicts a 
 greater punishment than the law annexed to the crime when 
 committed. 4th. Every law that alters the legal rules of 
 evidence, and receives less or different testimony than the 
 law required at the time of the commission of the offense, 
 ill order to convict the offender. All these and similar 
 laws are manifestly unjust and oppressive. In my opmion, 
 the true distinction is between ex post facto laws and retro- 
 spective laws. Every ex post facto law must necessarily be 
 retrospective, but every retrospective law is not an ex post 
 
 § 31c 
 
76 POLICE CONTROL OF CRIMINAL CLASSES. 
 
 facto law ; the former only are prohibited. Every law that 
 takes away or impairs rights vested, agreeably to existing 
 laws, is retrospective, and is generally unjust, and may be 
 oppressive ; and there is a good general rule, that a law 
 should have no retrospect ; but there are cases in which 
 laws may justly, and for the benefit ,of the community, and 
 also of individuals, relate to a time antecedent to their com- 
 mencement ; as statutes of oblivion or of pardon . They are 
 certainly retrospective, and literally both concerning and 
 after the facts committed. But I do not consider any law 
 ex post /ac^o, within the prohibition that mollifies the rigor 
 of the criminal law ; but only those that create or aggravate 
 the crime, or increase the punishment, or change the rules 
 of evidence for the purpose of conviction. Every law that 
 IS to have an operation before the making thereof, as to 
 commence at an antecedent time, or to save time from the 
 statute of limitations, or to excuse acts which were unlaw- 
 ful, and before committed, and the like, is retrospective. 
 But such laws may be proper or necessary, as the case may 
 be. There is a great and apparent difierence between mak- 
 ing an unlawful act lawful, and the making an innocent 
 action criminal, and punishing it as a crime. The expressions 
 ex post facto are technical ; they had been in use long before 
 the revolution, and had acquired an appropriate mean- 
 ing by legislators, lawyers, and authors." ^ It is not 
 difficult to understand the scope of the constitutional pro- 
 
 1 See Fletcher ». Peck, 6 Cranch, 87; Ogden v. Saunders, 12 Wheat. 
 213; Satterlee v. Matthewson, 2 Pet. 380; Watson v. Mercer, 8 Pet. 88; 
 Charles River Bridge v. Warren Bridge, H Pet. 420 ; Carpenter v. Pennsyl- 
 vania, 17 How. 456; Hopt v. Utah, 110 U. S. 574; Lock v. Dane, 9 Mass. 
 360; Woart v. Winnlck, 3 N. H. 473; Dashi;. Van Kleek, 7 Johns. 477; 
 Moore v. State, 43 N. J. 203; Perry's Case, 3 Gratt. 632; Evans ». Mont- 
 gomery, 4 Watts & S. 218; Huber v. RelUy, 53 Pa. St. 115. But a retro- 
 spective law will be ex post facto, notwithstanding It does not provide 
 for a criminal prosecution. The exaction of any penalty for the doing of 
 an act, which before the law was altogether lawful, makes the law ex post 
 facto. Falconer v. Campbell, 2 McLean, 195; Wilson v, Ohio, etc., B. B. 
 Co., 64 111. 542. 
 § 31c 
 
EX POST FACTO LAWS. 77 
 
 "tection against ecc post facto laws, except as to those cases, 
 in which it is held that when a less punishment is inflicted, 
 the law is not ex post facto. The difficulty in these cases 
 is a practical one, arising from an uncertainty concerning 
 "the relative grievousness and weight of different kinds of 
 punishment. That a law is constitutional, which mitigates 
 the punishment of crimes already committed, cannot be 
 doubted.^ But all punishments are degrading, and in no 
 case of an actual change of punishment, as for example, from 
 imprisonment to whipping, or vice versa, can the court with 
 certainty say that the change works a mitigation of the 
 punishment. But while the courts of many of the States 
 have undertaken to decide this question of fact,^ the New 
 York Court of Appeals has held that " a law changing the 
 punishment for offenses committed before its passage is ex 
 jtost facto SiXid void, under the constitution, unless the change 
 consists in the remission of some separable part of the pun- 
 ishment before prescribed, or is referable to prison disci- 
 pline or penal administration, as its primary object."^ 
 
 1 Woart V. Wlnnlck, 3 N. H. 179; State v. Arlin,39N.H. 179; Hartung 
 ». People, 22 N. Y. 95, 105; Shepherd «. People, 25 N. Y. 124; State v, 
 Wiliams, 2 Eich. 418; Boston v. Cummings, 16 Ga. 102; Strong v. State, 
 1 Blackf. 193; Clarke v. State, 23 Miss. 261; Maul v. State, 25 Tex. 166; 
 Turner v. State, 40 Ala. 21. 
 
 2 See State v. Arlin, 39 N. H. 17?; State v. WUliams, 2 Rich. 418; 
 Strong V. State, 1 Blackf. 193 ; Herber v. State, 7 Tex. 69. 
 
 ' Davies, J., in Eatzky v. People, 29 N. Y. 124. See Shepherd v. Peo- 
 ple, 25 N. Y. 406. " In my opinion," says Denio, J., in Hartung v. Peo- 
 ple, 22 N. Y. 95, 105, "it would be perfectly competent for the legislature, 
 by a general law, to remit any separable portion of the prescribed pun- 
 ishment. For instance, if the punishment were fine and imprisonment, a 
 law which should dispense with either the fine or the imprisonment 
 might, I think, be lawfully applied to existing offenses ; and so, in my 
 •opinion, the term of imprisonment might be reduced, or the number 
 of stripes diminished, in cases punishable in that manner. Anything 
 which, if applied to an Individual sentence, would fairly fall within the 
 Idea of a remission of a part of the sentence, would not be liable to ob- 
 jection. And any change which should be referable to prison discipline 
 or penal administration, as its primary object, might also be made to take 
 effect upon past as well as future offenses ; as changes in the manner or 
 
 § 31c 
 
78 POLICE CONTROL OF CRIMINAL CLASSES. 
 
 Except in regard to the material changes in the rules of 
 evidence which tend to make conviction easier, laws for 
 the regulation of criminal procedure are always subject to 
 repeal or amendment, and the new law will govern all 
 prosecutions that are begun or are in progress after its en- 
 actment, it matters not when the offenses were committed. 
 Such a law is not deemed an ex post facto law when applied 
 
 kind of employment of convicts sentenced to hard labor, the system of 
 supervision, the means of restraint, or the like. Changes of this sort 
 might operate to increase or mitigate the severity of the punishment of 
 "the convict, but would not raise any question under the constitutional 
 provision we are considering. The change wrought by the act of 1860, in 
 the punishment of the existing offenses of murder, does not fall withui 
 either of these exceptions. K It is to be construed to vest in the gov- 
 ernor a discretion to determine whether the convict should be executed 
 or remain a perpetual prisoner at hard labor, this would only be equiva- 
 lent to what he might do under the authority to commute a sentence. 
 But he can, under the constitution, only do this once for all. If he re- 
 fuses the pardon, the convict is executed according to the sentence. If he 
 grants it, his jurisdiction of the case ends. The act in question places the 
 convict at the mercy of the governor in oflSce at the expiration of one 
 year from the time of the conviction, and of all of his successors during 
 the lifetime of the convict. He may be ordered to execution at any time, 
 upon any notice, or without notice. Under one of the repealed sections 
 of the Revised Statutes, it was required that a period should Intervene 
 between the sentence and the execution of not less than four, nor more 
 than eight weeks. If we stop here, the change effected by the statute is 
 between an execution within a limited time, to be prescribed by the court, 
 or a pardon or commutation during that period, on the one hand, and 
 the placing the convict at the mercy of the executive magistrate for the 
 time, and his successors, to be executed at his pleasure at any time after 
 one year, on the other. The sword is indefinitely suspended over his 
 head, ready to fall at any time. It is not enough to say, if ever that can 
 be said, that most persons would probably prefer such a fate to the 
 former capital sentence. It is enough to bring the law within the con- 
 demnation of the constitution, that It changes the punishment after the 
 commission of the offense, by substituting for the prescribed penalty a 
 different one. We have no means of saying whether one or the other 
 would be the most severe in a given case. That would depend upon the 
 disposition and temperament of the convict. The legislature can not thus 
 experiment upon the criminal law. The law, moreover, prescribes one 
 year's imprisonment, at hard labor in the State prison, in addition to the 
 punishment of death. In every case of the execution of a capital sen- 
 § 31c 
 
PRELIMINARY CONFINEMENT TO ANSWER FOE A CEIME. 79 
 
 to the prosecution of offenses commited before the change 
 in the law.^ 
 
 § 32. Preliminary confinement to answer for a 
 crime. — It is the benign principle of every system of juris- 
 prudence that one is presumed to be innocent of all criminal 
 accusations , until he is proven to be guilty, and that presump- 
 tion is so strong that the burden is thrown upon the prosecu- 
 tion of proving the guilt beyond the shadow of a doubt, 
 in order to secure a conviction. But, notwithstanding this 
 general presumption of innocence, the successful prosecu- 
 tion and punishment of crimes require that the necessary 
 precautions be taken to secure the presence of the accused 
 during the trial and afterwards, in case of conviction, and 
 the fear of a default in attendance becomes greater in por- 
 portion as the likelihood of conviction increases. In order, 
 therefore, that the laws may be enforced, and the guilty be 
 brought to trial and punishment, it is necessary that every 
 one, against whom a charge of crime has been laid, should 
 submit to arrest by the proper officer, whose duty it is to 
 bring the accused before the court or officer by whom the 
 order for arrest has been issued. 
 
 tence, it must be preceded by the year's Imprisonment at hard 
 labor. * * * It is enougli, in my opinion, that it changes it (the pun- 
 ishment) in any manner, except, by dispensing with divisible portions of 
 it; but upon the other definition announced by Judge Chase, where it is 
 implied that the change must be from a less to a greater punishment, this 
 act can not be sustained." 
 
 1 Gut e. State, 9 Wall. 35; State ». Learned, 47 Me. 426; State©. Cor- 
 son, 59 Me. 137; Commonwealth V. Hall, 97 Mass. 570; Commonwealth ». 
 Dorsey, 103 Mass. 412; State v. Wilson, 48 N. H. 398; Walter v. People, 
 32 N. Y. 147; Stokes v. People, 53 N. Y. 164; Warren v. Commonwealth, 
 37 Pa. St. 45; Eand v. Commonwealth, 9 Gratt. 788; State v. Williams, 2 
 Eich. 418; Jones v. State, 1 Ga. 610; Hart v. State, 40 Ala. 32; State v. 
 Manning, 14 Tex. 402; Bowling u. Mississippi, 13 Miss. 664; Walton u. 
 Commonwealth, 16 B. Mon.l5; Lasure «. State, 10 Ohio St. 43; McLaugh- 
 lin V. State, 45 Ind. 338; Brown v. People, 29 Mich. 232; People v. 01m- 
 stead, 30 Mich. 431 ; Sullivan v. Oneida, 61 111. 242 ; State v. Eyan, 13 
 Minn. 370; State v. O'Maherty, 7 Nev. 153. 
 
 § 32 
 
80 POLICE CONTROL OF CRIMINAL CLASSES. 
 
 Since the preliminary confinement is ordered only to 
 insure the attendance of the accused at the trial, the 
 confinement can only be continued as long as there .s 
 any reasonable danger of his default. Where, therefore, 
 the punishment upon conviction will not exceed a fine or 
 imprisonment of short duration, it became customary at 
 an early day to release him upon giving a bond for 
 his appearance, signed by sureties, in the sum which he 
 will have to pay upon conviction, or in such a sum as 
 would probably be sufficient to outweigh the impulse to 
 flee from the threatened imprisonment. This was called 
 giving bail. At common law, bail could not be demanded 
 as a matter of right, except in cases of misdemeanor, and 
 felonies were not bailable as a rule. But the severity of 
 the common law in this regard has been greatly moderated, 
 until at the present day, as a general rule, all offenses are 
 bailable as a matter of course, except in cases of homicide 
 and other capital cases. In all capital cases, it is usually 
 provided that bail should be refused, where the evidence 
 of guilt is strong or the presumption great, and in all 
 such cases it is left to the discretion of the judge to 
 whom application is made, whether bail should be granted 
 or refused.^ When a person is bailed, he is released 
 from the custody of the State authorities, but he is not 
 remanded completely to his liberty. The one who has 
 furnished the security, and is therefore responsible for 
 his default, has in theory the custody of the accused in the 
 place of the State, and he has in fact so much of a control 
 over the accused, that he may re-arrest the latter, whenever 
 he wishes to terminate his responsibility, and deliver the 
 principal to the officers of the law. But the imprisonment 
 by the bail can only be temporary and for the purpose of 
 
 1 United states ?>. Hamilton, 3 Ball. 17; State ». EockafeUow, 6 N, J. 
 332; Com. v. Semmes, 11 Leigh, 665; State o Summons, 19 Oliio, 139; Al- 
 lery v. Com., 8 B. Mon. 3 ; Moore v. State, 36 Miss. 137 ; Foley v. People, 1 
 111. 31; Shore v. State, 6 Mo. 640; People v. Smith, 1 Cal. 9. 
 § 32 
 
WHAT CONSTITUTES A LAWFUL ARREST. 81 
 
 Teturning him to the custody of the law, and must be done 
 with as little violence as possible. This can be done at any 
 time before the forfeiture of the bond for non-appearance 
 has been judicially declared ; it maybe done by the bail or 
 by his duly constituted agent, and the arrest can be made 
 "wherever the accused can be found, even though it is with- 
 out the State. ^ 
 
 The constitutions of most of the States, as well as the 
 constitution of the United States, provide that excessive 
 iDail shall not be required. What constitutes excessive bail, 
 jnust from the necessities of the case be left with the dis" 
 cretion of the judge or magistrate, to whom application 
 for release on bail is made. Any misjudgment in such a 
 •case, or a willful requirement of excessive bail, could not 
 be remedied, except by application to some other court or 
 judge possessing jurisdiction over the case. That bail may 
 be called reasonable, which will be sufficient to secure the 
 attendance of the accused at the trial by outweighing or 
 overcoming the inducement to avoid punishment by a de- 
 fault ; and the court or judge, in determining the amount 
 of the bail, must take into consideration all the circum- 
 stances which will increase or diminish the probability of a 
 -default, the nature of the offense, and of the punishment, 
 "the strength or weakness of the evidence, the wealth or 
 impecuniosity of the accused, etc. 
 
 Section 33. What constitutes a lawful arrest. 
 33a. Arrests without a warrant. 
 
 § 33. What constitutes a lawful arrest. — As a general 
 proposition, no one can make a lawful arrest for a crime, 
 except an officer who has a warrant issued by a court or 
 magistrate having the competent authority. If the process 
 
 1 See Commonwealth ». Brickett, 8 Pick. 138; Parker ». Bidwell, 3 
 Conn. 84; Reed v. Case, i Conn. 166 (10 Am. Dec. 110) ; NiccoUs v. In- 
 gersoll, 7 Johns. 145; Harp v. Osgood, 2 Hill, 216. 
 
 6 § 33 
 
82 POLICE CONTROL OF CRlMIlirAL CLASSES. 
 
 is fair on its face, that is, nothing appears upon its face to 
 lead the officer to an inquiry into the jurisdiction of the 
 court, then the officer who makes the arrest has acted law- 
 fully, notwithstanding the court or magistrate which issued 
 the process had no jurisdiction over the case.^ 
 
 A distinction is made by the cases between courts of gen- 
 eral and of inferior jurisdiction, in respect to what process 
 is fair on its face. If the process issued from a court of 
 general jurisdiction, the officer is allowed to indulge in the 
 presumption that the case came within the jurisdiction of 
 the court, and need make no inquiry into the details of the 
 case, nor need the warrant contain recitals to show that 
 the court had jurisdiction. But if the process issued from 
 a magistrate or court of inferior and limited jurisdiction, 
 the warrant must contain sufficient recitals to satisfy the 
 officer that the case was within the jurisdiction of the court, 
 in order to be fair on its face. This distinction is very 
 generally recognized and applied.^ 
 
 '■ Cooley on Torts, 172, 173, 460. See State v. McNally, 34 Me. 210 r 
 State ». Weed, 21 N. H. 262; Underwood ». Robinson, 106 Mass. 296; 
 Neth V. Crofut, 30 Conn. 580; Warner v. Shed, 10 Johns. 138; Brainard 
 V. Head, 15 La. Ann. 489. See, also, generally, as to what process is fair 
 on its face, Erskine v. Hohnbach, 14 Wall. 613; Watson ». Watson, 9 
 Conn. 140; Tremont ■». Clarke, 33 Me. 482 ; Colman u. Anderson, 10 Mass. 
 105; Howard v. Proctor, 7 Gray, 128; Williamston i). Willis, 15 Gray,* 
 427; Rice v. Wadsworth,27 N. H. 104; Sheldon v. Van Buskirk, 2 N. Y. 
 473; Alexander u. Hoyt, 7 Wend. 89; Webber v. Gay, 24 Wend. 485 j 
 Chegaray ^.Jenkins, 5 N Y. 376; Moore «. Alleghany City, 18 Pa. St. 55; 
 Billings V. Russell, 23 Pa. St. 189; Cunningham v. Mitchell, 67 Pa. St. 
 78; State v. Jervey, 4 Strob. 304; Sl;ate v. Lutz, 65 N. C. 503; Gore v. 
 Martin, 66 N. C. 371; Bird v. Perkins, 83 Mich. 28; Loomis v. Spencer, 
 1 Ohio St, 153; Noland v. Busby, 28 Ind. 154; Lott v. Hubbard, 44 Ala. 
 593; Brother v. Cannon, 2 111. 200; Shaw v. Dennis, 10 111. 405; McLean 
 V. Cook, 23 Wis. 364; Orr v. Box, 22 Minn. 485; Turner v. Franklin, 29 
 Mo. 285; State v. Duelle, 48 Mo. 282; Walden v. Dudley, 49 Mo. 419. 
 The officer can not receive the warrant signed In blank by the judge or 
 magistrate, and fill up the blanks himself. Such a warrant would be 
 void. Pierce v. Hubbard, 10 Johns. 405; People v. Smith, 20 Johns. 68; 
 Eafferty v. People, 69 111. Ill; s. o. 72 111. 37 (18 Am. Rep. 601). 
 ' Cooley on Torts, pp. 173, 464. 
 § 33 
 
AERESTS WITHOUT A WARRANT. 83 
 
 The officer is bound to know whether under the law the 
 warrant is defective, and not fair on its face, and he is lia- 
 ble as a trespasser, if it does not appear on its face to be a 
 lawful warrant. His ignorance is no excuse.^ It has been 
 held in several of the States ^ that where an officer has knowl- 
 edge of the illegality of the warrant, although it is fair 
 on its face, he can not with safety act under it, the protec- 
 tion of process fair on its face being granted to those who 
 ignorantly rely upon its apparent validity. But the better 
 opinion is that the officer is not required in any case to pass 
 judgment upon the validity of a warrant that is fair on its 
 face, and his knowledge of extra-judicial facts will not de- 
 prive him of the right to rely upon its apparent validity.' 
 
 § 33a . Arrests witbont a warrant. — Although it is the 
 general rule of law that there can be no arrest without a 
 warrant of the nature just described, yet there are cases in 
 which the requirement of a warraut would so obstruct the 
 effectual enforcement of the laws, that the ends of justice 
 would be defeated. For public reasons, therefore, in a few 
 
 1 Grumon v. Baymond, 1 Conn. 39; Lewis v. Avery, 8 Vt. 287; Clay- 
 ton V. Scott, 45 Vt. 386. But where the matter of jurisdiction is a ques- 
 tion of fact and not a question of law, upon which the court issuing the- 
 warrant has pronounced judgment, the officer is protected by the warrant, 
 and is not responsible for any error of the court. Clarke v. May, 2 Gray, 
 410; Mather v. Hood, 8 Johns. 447; Sheldon v. Wright, 6 N. Y. 497 j 
 State V. Scott, 1 Bailey, 294 ; Wall v. Trumbull, 16 Mich. 228. 
 
 2 Barnes v. Barber, 6 111. 401 ; Guyer v. Andrews, 11 111. 494 ; Leachman 
 V.Dougherty, 81 lU. 324; Sprague ». Birchard, 1 Wis. 467, 464 ; Grace 
 Mitchell, 31 Wis. 533, 539. 
 
 8 Wilmarth «. Burt, 7 Met, 267; Twitchell ». Shaw, 10 Cush. 46; 
 Grumon v. Baymond, 1 Conn. 40; Watson v. Watson, 9 Conn. 140, 146; 
 Webber v. Gay, 24 Wend. 485; Cunningham v. Mitchell, 67 Pa. St. 78; 
 Wall V. Trumbull, 16 Mich. 228; Bird v. Perkins, 33 Mich. 28; Brainard 
 V. Head, 15 La. Ann. 489 ; Eichards v. Nye, 5 Ore. 382. But he may, if he 
 chooses, refuse to serve such a warrant, and waive the protection which 
 he may claim from its being fair on its face. Horton v. Heudershot, 1 
 Hill, 118; Cornell u. Barnes, 7 Hill, 35; Dunlap v. Hunting, 2 Denio, 
 643; Earl v. Camp, 16 Wend. 662. See Davis v. Wilson, 61 111. 627; Hill 
 V. Wait, 5 Vt. 124. 
 
 § 33a 
 
84 POLICE CONTROL OF CRIMINAL CLASSES. 
 
 cases, the personal security of the citizen is subiected to the 
 further liability of being arrested by a police officer or pri- 
 vate individual without a warrant. But the right thus to 
 arrest without a warrant must be confined to the cases of 
 strict public necessity. The cases are few in number, and 
 may be stated as follows : — 
 
 1. When a felony is being committed, an arrest may be 
 made without warrant to prevent any further violation of 
 the law.^ 
 
 2. When the felony has been committed, and the officer 
 or private individual is justified, by the facts within his 
 knowledge, in believing that the person arrested has com- 
 mitted the crime".^ 
 
 3. All breaches of the peace, in assaults and batteries, 
 affrays, riots, etc., for the purpose of restoring order im- 
 diately.^ 
 
 4. The arrest of all disorderly and other persons who 
 may be violating the ordinary police regulations for the 
 preservation of public order and health, such as vagrants, 
 
 1 Eulofe V. People, 45 N. T. 213 ; Keenan v. State, 8 Wis. 132. But 
 see Somerville v. Richards, 37 Mich. 299. 
 
 ^ But the belief must be a reasonable one. If the facts within his 
 knowledge do not warrant his belief In the guilt of the innocent person 
 whom he has arrested, he will be liable in an action for false imprison- 
 ment. State V. Holmes, 48 N. H. 377; Holly v. Mix, 3 Wend. 3W; 
 Beuck V. McGregor, 32 N. J. 70 ; Commonwealth v. Deacon, 8 Serg. & 
 B. 47; State v. Boane, 2 Dev. 58; Long v. State, 12 Ga. 233; Eames v. 
 State, 6 Humph. 63. Less particularity, in respect to the reasonableness 
 of the suspicions against an individual, is required of an ofllcer who 
 makes an arrestjwithout warrant, than of a private person. The sus- 
 picious must be altogether groundless, in order to make the officer liable 
 for the wrongful arrest. See Marsh v. Loader, 14 C. B. (N. s.) 635; 
 Lawrence v. Hedger, 3 Taunt. 14; Bohan v. Sawin, 5 Cush. 281; HoUey 
 V. Mix, 3 Wend. 360 ; Burns v. Erben, 40 N. Y. 463 ; Drenuan v. People, 
 10 Mich. 169. 
 
 2 Philips V. Trull, 11 Johns. 477; Bespublicac. Montgomery; 1 Yeates, 
 419 ; City Council v. Payne 2 Nott & McCord, 476 ; Vandeveer v. Mat- 
 tocks, 3Ind. 479. 
 
 § 33a 
 
THE TRIAL OP THE ACCUSED. 85 
 
 gamblers, beggars, who are found violating the laws in the 
 public thoroughfares.^ 
 
 Section 34. The trial of the accused. 
 34a. Trial must be speedy. 
 356. Trial must be public. 
 34c. Accused entitled to counsel. 
 34(J. Indictment by grand jury or by information. 
 34e. The plea of defendant. 
 34/. Trial by jury —Legal jeopardy. 
 
 § 34. Tlie trial of the accused. — "No man shall be 
 deprived of his life, liberty, or property except by the judg- 
 ment of his peers or the law of the land." One who has 
 committed a crime can be punished by man, not because 
 he has violated the law of God, or the law of nature (if the 
 two systems of law can be considered distinguishable), but 
 because he has broken the law of man. In order that a 
 man may be lawfully deprived of his life or liberty, he 
 must be convicted of a breach of the human laws, and the 
 conviction must be secured according to the provisions of 
 these laws. If, according to the existing rules of the sub- 
 stantial and remedial law, one charged with a crime is not 
 guilty or can not be convicted of it, he stands free before 
 the law notwithstanding he has violated the God-given rights 
 of others; and to take away his life or his liberty would be 
 as much an infringement of his constitutional rights, as 
 would a like deprivation be of a man who leads a strictly 
 moral life, and scrupulously respects the natural rights of 
 his fellow-men. A man's life, liberty, or property can not 
 be taken away, except by due process of law. It is not 
 proposed to explain all the rules of law governing the con- 
 duct and management of criminal prosecutions, since the 
 
 1 See Mitchell v. Lemon, 34 Md. 176, in which it was held that one 
 may be arrested without a warrant, who was found violating the rules 
 laid down by the city board of health for the preservation of the public 
 health. 
 
 § 34 
 
86 POLICE CONTKOL OF CRIMINAL CLASSES. 
 
 object of the present outline of the subject is simply to 
 make a statement of the leading constitutional protections 
 to personal liberty. The trial must be conducted in com- 
 plete accordance with the rules of practice and the law of 
 evidence, in order that a conviction may lawfully support an 
 imprisonment for crime. But these rules of practice and 
 pleading may be changed by the legislature to any extent, 
 provided the constitutional limitations to be presently men- 
 tioned are not violated. 
 
 As already explained, a temporary confinement of one 
 accused of crime is permissible, in fact necessary, for the 
 purpose of insuring the presence of the alleged criminal 
 at the trial; for in cases of felony no one can be tried and 
 convicted in his absence, even though his absence is volun- 
 tary.^ But this confinement is only temporary, and can 
 justifiably continue only for as long a time as is reasonably 
 required by the prosecuting attorney to prepare the case of 
 the State for trial. 
 
 34a. The trial mnst be speedy. — It is, therefore, one of 
 the constitutional limitations for the protection of personal 
 liberty, that the trial be speedy. A man accused of a crime 
 is entitled to a speedy trial, not merely because he is under 
 a personal restraint, but also because his reputation is under 
 a cloud, as long as the criminal accusation remains undis» 
 posed of. As a general proposition, the accused is entitled to 
 a trial at the next term of the court after the commission of 
 the crime, or after the accused has been apprehended ; and 
 if it should prove to be necessary for any cause, except the 
 
 » Wlnchell v. State, 7 Cow. 625; Maurer v. People, 43 N. Y. 1; 
 Jacobs V. Cone, 5 Serg. & K. 335; State v. Alman, 64 N. C. 364 ; Andrews 
 V. State, 2 Sneed, 650; Jackson v. Commonwealth, 19 Gratt. 656. In cap- 
 ital cases, the record must show affirmatively that the accused was pres- 
 ent throughout the trial, and particularly when the verdict is brought In 
 and sentence pronounced. Dougherty v. Commonwealth, 69 Pa. St. 286. 
 But it seems that the accused need not always be personally present at 
 the trial for misdemeanors. Cooley Const. Llm. 890. 
 § 34a 
 
TEIAL MUST BE POBLIC. 87 
 
 fault of the accused, to adjourn the court without bringing 
 the prisoner to trial, m ordinary cases he would then be en- 
 titled to bail, although originally he was not. This is, how- 
 ever, largely a matter of discretion for the court .^ When 
 the prisoner is ready for trial, the solicitor for the State is 
 not entitled to delay, unless he satisfies the court that he 
 has exercised due diligence, yet for some cause, the short- 
 ness of time, or the absence of material witnesses, etc., he 
 is not prepared to proceed to trial.* The continuance of 
 cases must necessarily be largely left to the discretion and 
 good faith of the prosecuting attorney, although it is the 
 duty of the court to be watchful in behalf of the prisoners, 
 who may through the carelessness or malice of the attorney 
 for the State be kept in prison, indefinitely, awaiting a trial. 
 The discretiomii y character of the duties of prosecuting 
 attorneys furnishes them with powerful means of oppres- 
 sion, if they choose to employ them, and they are too often 
 careless and indifferent to the suffering they cause to the 
 accused, and too frequently ignore his learal right to a 
 speedy trial.' 
 
 § Sib. Trials must be public. — The next constitutional 
 requirement is that the trial must be public. The object of 
 this provision is to prevent the establishment of secret tribu- 
 nals of justice, which can be made effective instruments for 
 the oppression of the people. But there is a difficulty in de- 
 termining what amount of publicity in criminal trials would 
 satisfy this requirement of the constitution. It would not 
 do to say that every person has a constitutional right to at- 
 tend every criminal trial, whether he had an interest in the 
 
 1 See Ex parte Caplis, 58 Miss. 358. 
 
 2 Cooley Const. Lira. 311, 312. 
 
 3 While I am writing, an account of a most flagrant case of official dis- 
 respect of private rigtits of this character has come to my ears. In my 
 neighborhood, a man has been allowed to linger in jail on the charge of 
 burglary, for many days, awaiting his preliminary examination, because 
 the prosecuting attorney was in attendance upon political picnics. 
 
 § Sib 
 
88 POLICE CONTROL OF CRIMINAL CLASSES. 
 
 prosecution or not, for that would necessitate the construc- 
 tion for judicial purposes of a much larger building than is- 
 really needed for the ordinary conduct of the courts. 
 Then, too, since this constitutional requirement was es- 
 tablished for the protection of the accused, it would not b& 
 violating any rights of his, if the courts should be closed, in 
 the trial of causes in which great moral turpitude is dis- 
 played, to those who are drawn thither by no real interest 
 in the prosecution or the accused, or for the performance 
 of a public duty, but merely for the gratification of a 
 prurient curiosity. The admission of such persons may 
 justly be considered injurious to the public morals, and 
 not at all required as a protection against the oppression 
 of star chambers. But, while it is undoubtedly true, 
 that this constitutional requirement could be satisfied, not- 
 withstanding the public generally is excluded from attend- 
 ance upon trials, where on account of the nature of the 
 case public morals would likely be corrupted by an un- 
 necessary exposure of human depravity, still it must be 
 conceded that the present public sentiment in America is. 
 opposed to any exclusion of the public from attendance upon 
 the sessions of the criminal courts, and an attempt of that 
 kind, even if the court possessed the power under the con- 
 stitution and laws, and that seems questionable, would raise 
 a most dangerous storm of public indignation against the 
 offending judge. It is only through the action of the legis- 
 lature that it would be possible to impose effectively the 
 limitations proposed. In framing these limitations, nu- 
 merous diflSculties would present themselves ; and it would 
 finally be ascertained that but two methods were feasible, 
 viz. : either to leave it to the discretion of the court who 
 shall be admitted to witness the trial, or to exclude the 
 public altogether, and admit only the officers of the court, 
 including members of the bar and jurors, the parties to the 
 suit, witnesses, and others who are personally interested 
 in the accused or the subject of the suit, and those whose 
 § 346 
 
ACCUSED ENTITLED TO COUNSEL. 89 
 
 presence is requested by the parties to the cause. Such is 
 believed to be the law prevailing in Germany.^ Such a pro- 
 vision would seem to make the trial sufficiently public in 
 order to protect the individual against unjust and tyrannical 
 prosecutions, and likewise furnish the community with 
 abundant means for enforcing a proper administration of 
 the courts. 
 
 In the same connection, it would be well, in carrying out 
 the same object, to exclude the reporters of the ordinary 
 newspapers. While, as a matter of course, the preserva- 
 tion and publication of criminal trials and statistics are 
 necessary to the public good, it is not only unnecessary as 
 a protection of personal liberty, that they should appear 
 in the ordinary public print, but it is highly injurious to 
 the public morals, as well as revolting to the sensibilities of 
 any one possessing a fair degree of refinement. The most 
 enterprising of the American journals of the larger cities 
 present daily to their reading public a full history of the 
 criminal doings of the previous day, and the length of the 
 reports increases with the nastiness of the details. The 
 amount of moral filth, that is published in the form of 
 reports of judicial proceedings, renders the daily paper 
 unfit to be brought into a household of youths and maidens. 
 There is greater danger of the corruption of the public 
 morals through the publication of the proceedings of our 
 criminal courts, than through the permission of attendance 
 upon the sessions of the court. Only a few will or can 
 avail themselves of that privilege, whereas thousands get 
 to learn through the press of the disgusting details of crime. 
 
 § 34c. Accused entitled to counsel. — The State, in all 
 criminal prosecutions, is represented by a solicitor, learned 
 
 1 The writer remembers how on one occasion, while he was a student 
 of the law at the University of Goettingen, he was bidden to leaye the 
 criminal court, because the case about to be tried was one involving deep 
 moral turpitude. 
 
 § 34c 
 
90 POLICE CONTROL OF CRIMINAL CLASSES. 
 
 in the law, and unless the accused was likewise represented 
 by legal counsel, he would usually be at the mercy of the 
 court and of the prosecuting attorney. The prosecution 
 might very easily be converted into a persecution. It was 
 one of the most horrible features of the early common law 
 of England, that persons accused of felonies were denied 
 the right of counsel, the very cases in which the aid of 
 counsel was most needed ; and it was not until the present 
 century that in England the right of counsel was guaranteed 
 to all persons charged with crime .^ But in America the 
 constitutional guaranty of the right of counsel in all cases, 
 both criminal and civil, is universal, and this has been the 
 practice back to an early day. Not only is it provided that 
 prisoners are entitled to counsel of their own appointment, 
 but it is now within the power of any judge of a criminal 
 court, and in most States it is held to be his imperative 
 duty, to appoint counsel to defend those who are too poor 
 to employ counsel ; and no attorney can refuse to act in 
 that capacity, although he may be excused by the court on 
 the presentation of sufficient reasons.^ 
 
 On the continent of Europe, the prisoner is allowed the 
 aid of counsel during the trial, but until the prosecuting 
 attorney is through with his inquisitorial investigation of 
 the prisoner, and has, by alternately threatening, coaxing, 
 
 » 
 
 1 In 1836, by Stat. 6 and 7 Will. IV., ch. 114. Before this date, English 
 jurists indulged in the pleasing fiction that the judge will be counsel 
 for the prisoner. " It has been truly said that, in criminal cases, judges 
 were counsel for the prisoners. So, undoubtedly, they were, as far as 
 they could be, to prevent undue prejudice, to guard against improper in- 
 fluence being excited against prisoners; but it was impossible for them 
 to go further than this, for they could not suggest the course of defense 
 prisoners ought to pursue; for judges only saw the deposition so short 
 a, time before the accused appeared at the bar of their country, that it 
 was quite impossible for them to act fully in that capacity." Baron 
 Garrow in a charge to a grand jury, quoted in Cooley Const. Lim. *332, 
 n. 2. 
 
 * Wayne Co. v. Waller, 90 Pa. St. 99 (35 Am. Bep. 636'); Bacon i>. 
 Wayne Co., 1 Mich. 461; Vise v. Hamilton Co., 19 111. 18. 
 § 34c 
 
INDICTMENT BY GRAND JURY OR BY INFORMATION. 91 
 
 and entrapping the accused into damaging admissions, 
 procured all the attainable evidence for the State, he is 
 denied the privilege of counsel. The counsel gains access 
 to his client when the prosecuting attorney is satisfied 
 that he can get nothing more out of the poor prisoner, 
 who, finding himself perhaps for the first time in the 
 olutohes of the law, and unable to act or to speak ration- 
 ally of the charge against him, will make his innocence 
 appear to be a crime. Not so with the English and Ameri- 
 can law. From the very apprehension of the prisoner, he 
 is entitled to the aid of counsel, and while his admissions, 
 freely and voluntarily made, are proper evidence to estab- 
 lish the charge against him, it is made the duty of all the 
 officers of the law, with whom he may come into contact, to 
 inform him that he need not under any circumstances say 
 anything that might criminate him. Confessions of the 
 accused, procured by promises or threats, are not legal 
 testimony, and cannot be introduced in support of the 
 case for the State. ^ 
 
 § 34J. Indictment by grand jury or by information. — 
 
 The prevailing criminal procedure, throughout the United 
 States, with perhaps a few exceptions, provides in cases of 
 felony for accusations to be made by an indictment by a 
 grand jury.* But these are matters of criminal procedure 
 
 1 Commonwealth v. Taylor, 6 Cush. 606; Commonwealth v. Curtis, 97 
 Mass. 574; Commonwealth v. Sturtivant, 117 Mass. 122; Commonwealth 
 V. Mitchell, 117 Mass. 431; People®. Phillips, 42 N. Y. 200; Peoples. 
 McMahon, 15 N. Y. 385; State v. Guild, 10 N. J. 163 (18 Am. Dec. 404) ; 
 Commonwealth v. Harman, 4 Pa. St. 269; State v. Bostick, 4 Harr. 563; 
 Thompson v. Commonwealth, 20 Gratt. 724 ; State v. Roberts, 1 Dev. 259 ; 
 States. Lowhorne, 66 N.C.538; State v. Vaigneur, 5 Bich. 391; Train ». 
 State, 40 Ga. 529; State v. Garvey, 28 La. Ann. 955 (26 Am. Rep. 123); 
 Boyd V. State, 2 Humph. 635; Morehead v. State, 9 Humph. 635; Austine 
 ■V. State, 51 111. 236; State v. Brockman, 46 Mo. 566; State v. Staley, 14 
 JUInn. 105. 
 
 2 In some of the States all accusations are now made by information 
 filed by the prosecuting attorney, and probably in all of the States pro- 
 secutions for minor misdemeanors are begun by information. 
 
 § S4d 
 
92 POLICE CONTROL OF CRIMINAL CLASSES. 
 
 that are subject to constant change by the legislature^ 
 and it cannot be doubted that no constitutional limitation 
 would be violated, if the grand jury system were abolished,^ 
 
 § 34e. The plea of defendant. — According to the early 
 common law, it was thought that before the trial could 
 proceed, the defendant had to plead to the indictment. In 
 treason, petit felony, and misdemeanors, a refusal to plead 
 or standing mute, was equivalent to a plea of guilty and 
 the sentence was pronounced as if the prisoner had been 
 regularly convicted. But in all other cases, it was neces- 
 sary to have a plea entered, before judgment could be pro- 
 nounced; and unless the defendant could be compelled to 
 plead, the prosecution would fail. It was the custom in 
 such cases to resort to tortures of the most horrible kind in 
 order to compel the defendant to plead ; and where the refusal 
 was shown to be through obstinacy or a design to frustrate 
 the ends of justice, and not because of some physical or 
 mental infirmity (and these matters were determined by a 
 jury summoned for that purpose), the court would pro- 
 nounce the terrible sentence of ^^ peine forte et dure."* 
 But at the present day the necessity of a voluntary plea to 
 the indictment does not seem to be considered so pressing, 
 as to require the application of this horrible penalty. 
 Respect for the common law requirement is manifested 
 only by the court ordering the plea of not guilty to be 
 
 1 Eallock V. Superior Court, 56 Cal. 229. But the United States Con- 
 stitution requires indictment by grand jury in tliose cases in which it was 
 required at common law. See United States Const., Amend., art., V. 
 
 ^ Which was as follows : " That the prisoner be remanded to the prison 
 from whence he came; and put into a low dark chamber; and there be. 
 laid on his back, on the bare floor, naked, unless where decency forbids ; 
 that there be placed upon his body, as great a weight of iron as he could 
 bear, and more ; that he have no sustenance, save only, on the first day, 
 three morsels of the worst bread ; and, on the second day, three draughts 
 of standing^ater, that should be nearest to the prison door; and in this 
 situation such should be alternately his daily diet till he died, or (as an- 
 ciently the judgment ran) till he answered." 4 Bl. Com. 423. 
 
 § 34e 
 
THE PLEA OF DEFENDANT. 93 
 
 •entered, whenever the prisoner failed or refused to plead, 
 and the trial then proceeds to the end as if he had volun- 
 tarily pleaded. 
 
 If, upon arraignment, the prisoner should plead guilty, 
 it would appear, from a superficial consideration of the 
 matter, that no farther proof need be required. But, 
 «trange as it may seem, there have been cases in which the 
 accused has pleaded guilty, and it has afterwards been dis- 
 covered that no crime had been committed. A tender re- 
 gard for the liberty of the individual would suggest the 
 requirement of extraneous evidence to prove the commis- 
 sion of a crime, and the plea of guilty be admitted only to 
 connect the prisoner with the crime. This would.be suffi- 
 cient precaution in ordinary criminal cases, but in capital 
 cases it would be wise to authorize a refusal of all pleas of 
 guilty ; for a mistake in such cases would be irremediable.^ 
 
 If the plea is not guilty, it becomes necessary for the 
 State to show by competent, legal evidence, that the de- 
 fendant has committed the crime whei'ewith he is charged. 
 Except in a few cases, where the sulject-matter of the 
 testimony forms a part of a public record, or consists of 
 the dying declaration of the murdered man in a case of 
 homicide, which are made exceptions to the rule by the neces- 
 sities of criminal jurisprudence, the evidence is presented to 
 the court by the testimony of witnesses. It is the invaria- 
 ble rule of the criminal law, which is believed to be guaranteed 
 by the constitutional limitations, that the testimony must 
 be given in open court by the witnesses orally, so that the 
 defendant will have an opportunity to cross-examine them.^ 
 
 1 In Stringf ellow v. State, 26 Miss. 155, a confession of murder was held 
 not sufficient to warrant conviction, unless supported by other evidence 
 showing the death of the man supposed to have been murdered. See, 
 also, People v. Hennesy, 15 Wend. 147. 
 
 2 Jackson v. Commonwealth, 19 Gratt. 666; Johns v. State, 55 Md. 350; 
 State V. Thomas, 64 N. C. 74; Bell v. State, 2 Tex. App. 216 (28 Am. Eep. 
 429) ; Goodman v. State, Meigs, 197. But if there has been a preliminary 
 examination before a coroner or magistrate, or a previous trial, when the 
 
 § Ue 
 
94 POLICE CONTEOL OF CKIMINAL CLASSES. 
 
 One of the most important constitutional requirements in 
 this connection, and that which most distinguishes the com- 
 mon-law system of criminal procedure from that of the 
 European Continent, is that the accused can never be com- 
 pelled to criminate himself by his evidence. Nor can he be 
 compelled to testify to any degree whatever. On the con- 
 tinent of Furope he is compelled to answer every question 
 that is propounded to him by the presiding judge. In 
 England and America he may now testify in his own behalf, 
 but the privilege of remaining silent is so strictly guarded, 
 that it is very generally held to be error for the State to com- 
 ment on, and to drawn adverses inferences from, his failure 
 to take advantage of the opportunity to testify in his own 
 behalf. The Anglo-Saxon spirit of fair play requires the 
 State to convict the accused without the aid of extorted 
 confessions, and will not allow such criticisms on his silence.^ 
 But if he goes upon the witness-stand, while he still has 
 the privilege of deciding how far and as to what facts he 
 shall testify, and may refuse to answer questions which may 
 tend to criminate him, the State attorney may comment on 
 the incompleteness of the evidence and his refusal to an- 
 swer proper questions . Having put himself upon the stand, 
 
 defendant had an opportunity to cross-examine the witness, it will b^ 
 allowable to make use of tho minutes of the previous examination in all 
 cases where the witness is since deceased, has become insane, or is sick, 
 or Is kept away by tho defendant. Commonwealth v. Richards, 18 Pick. 
 434 ; State v. Hooker, 17 Vt. 658 -, Brown v. Commonwealth, 73 Pa. St. 
 321; (summons v. State, 5 Ohio St. 325; O'Brien v. Commonwealth, 6 
 Bush, 503 ; Pope v. State, L'J Ark. 371; Davis v. State, 17 Ala. 354; Ken- 
 dricks v. State, 10 Humph. C7d ; People v. Murphy, 45 Cal. 137. 
 
 ' See Commonwealth v. Bonner, 97 Mass. 687; Commonwealth v. 
 Morgan, 107 Mass. 109 ; Comnonwealth v. Nichols, 114 Mass. 285 (19 
 Am. Rep. 346) ; Commonwealth v. Scott, 12.S Mass. 239 (25 Am. Rep. 87) ; 
 State V. Cameron, 40 Vi. 555 ; Brandon v. People, 42 N. Y. 265; Connors 
 V. People, 50 N. Y. 240; Stover „. People, 56 N. Y. 315; Devries v. 
 Phillips, 63 N. C. 53; Bird v. State, 50 Ga. 585; Calkins ». State, 18 Ohio 
 St. 366; Knowles v. People, 15 Mich. 408; People v. Tyler, 36 Cal. 622; 
 See, contra, State v. Bartlett, 65 Me. 200; State r. Lawrence, 57 Me. 376 j 
 State V. Cleaves, 69 Me. 298 (8 Am. Rep. 422). 
 § Sie 
 
TRIAL BY JUEY — LEGAL JEOPARDY. 95 
 
 very little weight can be given to his testimony, if he does 
 not tell the whole truth, as well as nothing but the truth.^ 
 It is hardly necessary to state that a full opportunity 
 must be given to the accused to defend himself against the 
 charge of the State. Without such an opportunity, the pro- 
 ceeding would be only ex parte. 
 
 § 34/. Trial by jury — Lisgal jeopardy. — All prose- 
 cutions are tried at common law by a jury, and in some of 
 our State constitutions the right of trial by jury is expressly 
 guaranteed. Where the right is guaranteed without restric- 
 tion, it means a common-law trial by jury; and where at 
 common law certain offenses were triable by the court with- 
 out the aid of a jury, the jury is not now required.* 
 Whether in the absence of an express guaranty of the trial 
 by jury, it could be abolished by the legislature, is difficult 
 to determine. If one can keep his judgment unbiased by 
 the prevailing sentiment, which makes of the jury " the 
 palladium of liberty," " the nation's cheap defender," etc., 
 it would seem that he must conclude that the jury is not 
 needed to make the trial " due process of law ; " and where 
 the constitutional clause reads in the alternative, as it did in 
 the Magna Oharta, " by the judgment of his peers or the 
 law of the land," the presumption becomes irresistible that 
 when the trial by jury is not expressly guaranteed the power 
 of the legislature to abolish the jury system is free from 
 constitutional restraint. But in the present temper of pub- 
 lic opinion concerning the sacredness of the right of trial by 
 jury, it would not be surprising if the courts should pro- 
 nounce an express guaranty to be unnecessary. 
 
 The last constitutional requirement concerning criminal 
 
 1 State V. Ober, 62 N. H. 459 (13 Am. Rep. 88) ; State v. Wentworth, 
 65 Me. 234 (20 Am. Bep. 688) ; Connors v. People, 50 N. T. 240. 
 
 2 What are the common-law characteristics of a jury trial, are so fully 
 set forth and explained in books of criminal procedure, that any state- 
 ment of them in this connection is unnecessarv. 
 
 § 34/ 
 
96 POLICE CONTROL OF CEIMINAL CLASSES. 
 
 trials to be considered is that which declares that no person 
 shall "be subject for the same offense to be twice put in 
 jeopardy of life or limb. ' ' A person is said to have been in 
 legal jeopardy when he is brought before a court of com- 
 petent jurisdiction for trial, on a charge that is properly 
 laid before the court, in the form of an indictment or an 
 information, and a jury has been impaneled and sworn to 
 try him. When this is done, the defendant is entitled to 
 have the case proceed to a verdict, and if the prosecution 
 should be dropped by the entry of a nolle prosequi against 
 the defendant's will, it is of the same effect as if the case 
 had ended in acquittal of the defendant. There cannot be 
 any second prosecution for the same offense.^ But if the 
 prosecution should fail on account of some defect in the 
 indictment, or for want of jurisdiction,^ or if for unavoidable 
 reasons, the court has to adjourn and the jury be discharged 
 without a verdict,* as when the death of a j udge or of a juror 
 
 1 Commonwealth o. Tack, 20 Pick. 365; People v. Barrett, 2 Calnes, 
 304; State v. Alman, 64 N. C. 364; Nolan v. State, 55 Ga. 621; Grogan v. 
 State, 44 Ala. 9; State v. Connor, 5 Cold. 311; Mounts v. State, 14 Ohio, 
 295; Baker v. State, 12 Ohio St. 214; State «. Callendine, 8 Iowa, 288. 
 But see State v. Champeau, 53 Vt. 313 (36 Am. Eep. 754), in whicha noJZe 
 prosequi at this stage is held not to constitute a bar to a second prosecu- 
 tion. See, generally, as to what constitutes a legal jeopardy, State v. 
 Garvey, 42 Conn. 232; People v. McGowan, 17 Wend. 386; Commonwealtii 
 V. Alderman, 4 Mass. 477; State v. Little, 1 N. H. 257; Williams v. Com- 
 monwealth, 2 Gratt. 568; Hoffman «. State, 20 Md. 475; State v. Spier, 1 
 Dev. 491; McFadden ». Commonwealth, 23 Pa. St. 12; State ». Ned, 7 
 Port. 217; Lee v. State, 26 Ark. 260 (7 Am. Rep. 611) ; O'Brian ». Com- 
 monwealth, 9 Bush, 333 (15 Am. Rep. 715) ; Price v. State, 19 Ohio, 423 ; 
 Wright V. State, 5 Ind. 292 ; State v. Nelson, 26 Ind. 366 ; People v. Cook, 
 10 Mich. 164; State v. Green, 16 Iowa, 239; People v. Webb, 28 Cal. 467. 
 
 2 Commonwealth ■». Bakeman, 105 Mass. 53; Black v. State, 36 Ga. 
 447; Kohlheimer v. State, 39 Miss. 548; Mount v. Commonwealth, 2 
 Duv. 93; Gerard v. People, 4 111. 363; Commonwealth v. Goddard, 13 
 Mass. 455; People v. Tyler, 7 Mich. 161. 
 
 3 See United States v. Perez, 9 Wheat. 679; Commonwealth v. Boden, 
 9 Mass. 194; HoSman v. State, 20 Md. 425; State v. Wiseman, 68 N. C. 
 203; State v. Battle, 7 Ala. 259; Taylor v. State, 35 Tex. 97; Wright w. 
 State, 5 Ind. 290; Price v. State, 36 Miss. 6S3. The result is the same if 
 
 § 34/ 
 
IMPRISONMENT FOR CRIME HARD LABOR, ETC. 97 
 
 occurs,^ or the jury is unable, after a reasonable effort, to 
 agree upon a verdict, and a mistrial has to be ordered.^ 
 A second prosecution may also be instituted when a verdict 
 is set aside, or the judgment reversed, on the ground of 
 error.^ 
 
 Section 35. — Imprisonment for crime — Hard labor — Control of con- 
 vict in prison. 
 35a. — Convict lease system. 
 
 § 35. Imprisonment for crime — Hard labor — Control 
 of convicts in prison. — The most common mode of punish- 
 ment for crime at the present day is confinement in some 
 jail or penitentiary. The liberty of the convict is thus 
 taken away for a specified period, the length of which is 
 graded according to the gravity of the offense committed. 
 What shall be the proper amount of imprisonment to be 
 imposed as a reasonable punishment for a particular crime 
 is a matter of legislative discretion, limited only by the 
 vague and uncertain constitutional limitation, which prohi- 
 bits the infliction of "cruel and unusual punishments."* 
 Within the walls of the prison the convict must conduct 
 himself in an orderly manner, and conform his actions to 
 the ordinary prison regulations. If he should violate any 
 of these regulations, he may be subjected to an appropriate 
 
 the adjournment without a verdict is ordered with the express or implied 
 consent of the defendant. Commonwealth v. Stowell, 9 Met. 572; State 
 t). Slack, 6 Ala. 676. 
 
 1 Nugent V. State, i Stew. & Port. 72; Commonwealth v. Fells, 9 
 Xeigh, 620; Mahala v. State, 10 Yerg. 632; State v. Curtis, 5 Humph. 
 •601; Hector v. State, 2 Mo. 166. 
 
 2 People V. Goodwin, 18 Johns. 187; State v. Prince, 63 N. C. 629; Les- 
 ter?). State, 33 Ga. 329; Moseley v. State, 33 Tex. 671; State v. Walker, 
 26 Ind. 346; Commonwealth v. Olds, 6 Lit. 140; Dobbins v. State, 14 
 Ohio St. 493; Ex parte McLaughlin, 41 Cal. 211 ; 10 Am. Eep. 272. 
 
 « See State v. Lee, 10 E. I. 494 ; Casborus v. People, 13 Johns. 329 ; 
 McKee v. People, 32 N. Y. 239; State v. Norvell, 2 Yerg. 24; Kendall v. 
 State, 66 Ala. 492; State v. Redman, 17 Iowa, 329. 
 
 i As to the meaning of this limitation, see, ante, §§ 11, 12. 
 
 7 § 35 
 
98 POLICE CONTROL OF CRIMINAL CLASSES. 
 
 punishment, and for serious cases of insubordination, cor- 
 poral punishment is very often inflicted, epen in those 
 States in which the whipping-post has been abolished.^ 
 
 For minor offenses, it is usual to confine the criminal in 
 the county jail, and the punishment consists only of a de- 
 privation of one's liberty. But for more serious and graver 
 offenses, the statutes provide for the incarceration of the 
 convict in the penitentiary, where he is required to perform 
 hard labor for the benefit of the State. The product of 
 his labor is taken by the State in payment of the cost of 
 his maintenance. It cannot be doubted that the State has 
 a constitutional right to require its convicts to work during 
 their confinement, and there has never been any question 
 raised against the constitutionality of such regulations. 
 The penitentiary system is now a well recognized feature 
 of European and American penology. 
 
 § 35a. Convict lease system. — An interesting question 
 has lately arisen in this country, in respect to the State 
 control of convicts. In many of the Southern States, in- 
 stead of confining the convict at hard labor within the walls of 
 the penitentiary, in order to get rid of the burden of main- 
 taining and controlling them within the penitentiary, pro- 
 vision was made for leasing the convicts to certain contractors 
 to be worked in different parts of the date, usually in the con* 
 struction of railroads. The entire control of the convict was 
 transferred to the lessee, who gave bond that he would take 
 care and guard them, and promised to pay a penalty to the 
 State for the escape of each convict. The frequency of the 
 reports of heartless cruelty on the part of lessees towards 
 the convicts, prompted by avarice and greed, and rendered 
 possible by the most limited supervision of the State, has 
 aroused public sentiment in opposition to the convict lease 
 system in some of these States, and we may confidently 
 
 1 See ante, § I2a. 
 § 35a 
 
CONVICT LEASE SYSTEM. 99 
 
 «xpect a general abolition of the system at no very distant 
 day. But it is still profitable to consider the constitution- 
 ality of the law, upon which the convict lease system is 
 established. In Georgia, the constitutionality of the law 
 was questioned, but sustained. In pronouncing the statute 
 constitutional, the court said: " In the exercise of its sov- 
 ereign rights for the purpose of preserving the peace of 
 society, and protecting the rights of both person and prop- 
 perty, the penitentiary system of punishment was estab- 
 lished. It is a part of that police system necessary, as our 
 lawmakers thought, to preserve order, peace and the security 
 of society. The several terms of these convicts fixed by 
 the judgments of the courts under the authority of the law, 
 simply subject their persons to confinement, and to such 
 labor as the authority may lawfully designate. The sen- 
 tence of the courts under a violated law confers upon the 
 State this power, no more; the power to restrain their 
 liberty of locomotion, and to compel labor not only for 
 the purposes of health, but also to meet partially or fully 
 the expenses of their confinement. The confinement neces- 
 sarily involved expenses of feeding, clothing, medical atten- 
 tion, guards, etc., and this has been in its past history a. 
 grievous burden upon the taxpayers of the State. Surely 
 it was competent for the sovereign to relieve itself of this 
 burden by making an arrangement with any person to take 
 charge of these convicts and confine them securely to labor 
 in conformity with the judgments against them for a time 
 not exceeding their terms of sentence. It was a transfer 
 by the State to the lessee of the control and labor of these 
 persons in consideration that they would feed, clothe, ren- 
 der medical aid and safely keep them during a limited 
 period." ^ It cannot be doubted that, as a general propos- 
 ition, in the absence of express constitutional limitations as 
 to the place of imprisonment and labor, the canvict could 
 
 ' Georgia Penitentiary Co. ■». Nelms, 66 Ga. 499 C38 Am. Rep. 793). 
 
 § 35a 
 
100 POLICE CONTEOL OP CEIMINAL CLASSES. 
 
 be confined and compelled to labor in any place within the 
 State, and in fact he may be compelled to lead a migratory 
 life, going from place to place, performing the labor re- 
 quired of him by the law of the land. And the only case 
 in which such a disposition of the convict may be ques- 
 tioned, would be where this law was made to apply to one, 
 who had been convicted under a different law, the terms of 
 which allowed or required the sentence to provide for con- 
 finement at hard labor within the walls of the penitentiary. 
 A convict under such a sentence could not, in the enforce- 
 ment of a subsequent statute, be taken out of the peniten- 
 tiary and be compelled to work in other parts of the State. 
 The application of the new law to such a case would give it 
 a retrospective operation, and make it an ex post facto law. 
 But ordinary constitutional limitations would not be violated 
 in the application of such a law to those who may be con- 
 victed subsequently. The convict lease system is not open 
 to constitutional objection, because it provides for the con- 
 vict to be carried from place to place, performing labor 
 wherever he is required. The objectionable feature of the 
 system is the transfer to private persons, as a vested right, 
 of the control over the person and actions of the convict. 
 It is true that all the rights of the individual are subject to 
 forfeiture as a punishment for crime, and the State govern- 
 ment, as the representative of society, is empowered to 
 declare the forfeiture under certain constitutional limita- 
 tions. The State may subject the personal liberty of the 
 convict to restraint, but it cannot delegate this power of 
 control over the convict, any more than it can delegate to 
 private individuals the exercise of any of its police powers. 
 The m.B.x\m, delegatus non delegare potest finds an appropri- 
 ate application in this connection. Certainly, when we 
 consider the great likelihood of cruel treatment brought 
 about by the greed and avarice of the lessees of the con- 
 victs, personal interest outweighing all considerations of 
 humanity, it would not require any stretch of the meaning 
 § 35a 
 
CONVICT LEASE SYSTEM. 101 
 
 of words to declare the convict lease system a " cruel and 
 unusual punishment." The State may employ its convicts 
 in repairing its roads, in draining swamp lands, and carry- 
 ing on other public works ; the State may even lease the 
 convicts to labor, the lessee assuming the expense of main- 
 taining and guarding them, provided the State through its 
 officials has the actual custody of them ; but the State can- 
 not surrender them to the custody of private individuals. 
 Such a system resembles slavery too much to be tolerated in 
 a free State. 
 
 § 35a 
 
CHAPTBE V. 
 
 POLICE CONTROL OF DANGEROUS CLASSES, OTHERWISE THAN 
 BY CRIMINAL PROSECUTION. 
 
 Sec'i'ion 42. Confinement for infectious and contagious diseases. 
 
 43. Confinement of the insane. 
 
 44. Control of the insane in the asylum. 
 
 45. Panishment of the criminal insane. 
 
 46. Confinement of habitual drunkards. 
 
 47. Police control of vagrants. 
 
 48. Police regulation of mendicancy. 
 
 49. Police supervision of habitual criminals. 
 
 50. State control of minors. 
 
 § 42. Confinement for infectious and contagious 
 diseases. — The right of the State, through its proper 
 officer, to place in confinement, and to subject to regular 
 medical treatment, those who are suffering from some con- 
 tagious or infectious disease, on account of the danger to 
 which the public would be exposed if they were permitted 
 to go at large, is so free from doubt that it has been rarely 
 questioned.^ The danger to the public health is a sufficient 
 ground for the exercise of police power in restraint of the 
 liberty of such persons. This right is not only recognized 
 in cases where the patient would otherwise suffer from 
 neglect, but also where he would have the proper attention 
 at the hands of his relatives. While humanitarian im- 
 pulses would prompt such interference for the benefit of 
 the homeless, the power to confine and to subject by force 
 to medical treatment those who are afflicted with a conta- 
 
 1 Harrison v. Baltimore, 1 Gill, 264. In this case it was held that it 
 was competent for the health oflScer to send to the hospital persons, on 
 board of an infected vessel, who have the infectious disease, and all 
 others on board who may be liable to the disease, if it be necessary, in 
 his opinion, to prevent the spread of the disease. 
 § 42 (102) 
 
THE CONFINEMENT OF THE INSANE. 103 
 
 gious or infectious disease, rests upon the danger to the 
 public, and it can be exercised, even to the extent of trans- 
 porting to a common hospital or lazaretto those who are 
 properly cared for by friends and relatives, if the public 
 safety should require it. 
 
 But while it may be a legitimate exercise of governmental 
 power to establish hospitals for the care and medical treat- 
 ment of the poor, whatever may be the character of the 
 •disease from which they are suffering, unless their disease 
 is infectious, their attendance at the hospital must be free 
 and voluntary. It would be an unlawful exercise of police 
 power, if government officials should attempt to confine one 
 in a hospital for medical treatment, whose disease did not 
 render him dangerous to the public health. As a matter of 
 course, the movements of a person can be controlled, who 
 is in the delirium of fever, or is temporarily irrational from 
 any other cause; but such restraint is permissible only be- 
 cause his delirium disables him from acting rationally in 
 his own behalf. But if one, in the full possession of his 
 mental faculties, should refuse to accept medical treatment 
 for a disease that is not infectious or contagious, while pos- 
 sibly, in a clear case of beneficial interference in an emer- 
 gency, no exemplary or substantial damages could be 
 recovered, it would nevertheless be an unlawful violation of 
 the rights of personal liberty to compel him to submit to 
 treatment. The remote or contingent danger to society 
 from the inheritance of the disease by his children would 
 be no ground for interference. The danger must be im- 
 mediate. 
 
 § 43. The confiuement of the insane. — This is one 
 of the most important phases of the exercise of police 
 power, and there is the utmost need of an accurate and 
 exact limitation of the power of confinement. In the 
 great majority of the cases of confinement for insanity, it is 
 done at the request and upon the application of some loving 
 
 § 43 
 
104 POLICE CONTROL OF DANGEROUS CLASSES. 
 
 friend or relative; the parent secures the confinement of h\» 
 insane child, the husband that of his demented wife, and 
 vice versa ; and no doubt in comparatively few cases is there 
 the slightest ground for the suspicion of oppression in the 
 procurement of the confinement. But cases of the confine- 
 ment of absolutely sane people, through the promptings of 
 greed and avarice, or through hate and ignorance, do occur, 
 even now, when public opinion is thoroughly aroused on the 
 subject, and they occurred quite frequently in England, 
 when private insane asylums were common. Although 
 these cases of unjust confinement are probably infrequent, 
 perhaps rare, still the idea of the forcible confinement in 
 an insane asylum of a sane person is so horrible, and the 
 natural fear is so great that the number of such cases is 
 underestimated, because of the difficulty experienced in pro- 
 curing accurate statistical knowledge (that fear being 
 heightened by the well known differences of opinion, among 
 medical experts on insanity, whenever a case comes up in 
 our courts for the adjudication upon the sanity or insanity 
 of some one), one is inclined, without hesitation, to demand 
 the rigorous observance of the legal limitations of power 
 over the insane, and it becomes a matter of great moment, 
 what constitutional limitations there are, which bear upon 
 this question.^ 
 
 In what relation does the insane person stand to the 
 State? It must be that of guardian and ward. The State 
 may authorize parents and relatives to confine and care for 
 the insane person, but primarily the duty and right of con- 
 finement is in the State. " This relation is that of a ward, 
 who is a stranger to his guardian, of a guardian who has no 
 acquaintance with his ward." ^ In the consideration of the 
 rights and duties incident to this relation, it will be neces- 
 
 ' For a careful, able, and elaborate discussion of the rights of the 
 Insane, and of the power of the State over them, see Judge Cooley's 
 opinion In the case of Van Deusen v. Newcomer, 40 Mich. 90. 
 
 ' Preface to Harrison's Legislation on Insanity. 
 § 43 
 
THE CONFINEMENT OF THE INSANE. 105 
 
 sary, first, to consider the circumstances under which the 
 confinement would be justifiable, and the grounds upon 
 which forcible confinement can be sustained, and then de- 
 termine what proceedings, preliminary to confinement, are 
 required by the law to make the confinement lawful. 
 
 The duty of the State, in respect to its insane population, 
 is not confined to a provision of the means of confinement, 
 sufficient to protect the public against any violent manifes- 
 tations of the disease. The duty of the State extends fur- 
 ther, and includes the provision of all the means known to 
 science for the successful treatment of the diseased mind. 
 This aspect of the duty of the State is so clearly and un- 
 equivocally recognized by the authorities and public opinion 
 in some of the States, that the statutes impose upon the 
 State asylums the duty of receiving all voluntary patients for 
 medical treatment, upon the payment of the proper reason- 
 able fees, and retaining them as long as such patients de- 
 sire to remain. In this respect the insane asylum bears the 
 same relation to the public as the hospital does. As long 
 as coercion is not employed, there would seem to be no 
 limit to the power ^of the State to provide for the medical 
 treatment of lunatics, except the legislative discretion and 
 the fiscal resources of the State. But when the lunatic 
 is subjected to involuntary restraint, then there are consti- 
 tutional limitations to the State's power of control. 
 
 If the lunatic is dangerous to the community, and his con- 
 finement is necessary as a means of protecting the public 
 from his violence, one does not need to go farther for a rea- 
 son sufficient to justify forcible restraint. The confinement 
 of a violent lunatic is as defensible as the punishment of a 
 criminal. The reason for both police regulations is the 
 same, viz. : to insure the safety of the public. 
 
 But all lunatics are not dangerous. It is sometimes 
 maintained by theorists that insanity is always dangerous to 
 the public, even though it may be presently of a mild and 
 apparently harmless character, because of the insane pro- 
 
 § 43 
 
106 POLICE CONTROL OF DANGEROUS CLASSES. 
 
 pensity for doing mischief, and the reasonable possibility 
 of a change in the character of the disease. But the same 
 might be said of every rational man in respect to the pos- 
 sibility of his committing a crime. Some one has said, all 
 men are potential murderers. The confinement of one who 
 is liable to outbursts of passion would be as justifiable as 
 the confinement of a harmless idiot, whose dementia has 
 never assumed a violent form, and is not likely to change 
 in the future, simply for the reason that there is a bare pos- 
 sibility of his becoming dangerous. 
 
 But the State, in respect to the care of the insane, owes 
 a duty to these unfortunate people, as well as to the public. 
 The demented are as much under a natural disability as 
 minors of tender age, and the State should see that the 
 proper care is taken of them. The position has been 
 already assumed and justified that the State may make pro- 
 vision for the reception and cure of voluntary patients, 
 suffering from any of the forms of dementia, and for the 
 same reason that the proper authority may forcibly restrain 
 one who is in the delirium of fever and subject him to medi- 
 cal treatment, the State has undoubtedly the right to pro- 
 vide for the involuntary confinement of the harmlessly insane, 
 in order that the proper medical treatment may be given, 
 and a cure effected. The benefit to the unfortunate is a 
 sufficient justification for the involuntary confinement. He 
 is not a rational being, and cannot judge for himself what 
 his needs are. Judge Cooley says: "An insane person, 
 without any adjudication,^ may also lawfully be restrained 
 of his liberty, for his own benefit, either because it is neces- 
 sary to protect him against a tendency to suicide or to stray 
 away from those who would care for him, or because a 
 proper medical treatment requires it." ^ If the possible 
 cure of the patient be the only ground upon which a harm- 
 
 ^ As to the necessity of adjudication in any case of confinement of the 
 Insane, seeposf. 
 
 2 Cooley on Torts, 179. 
 § 43 
 
THE CONFINEMENT OF THE INSANE. 107 
 
 less lunatic could be confined, as soon as it has become 
 <!lear that his is a hopeless case, for which there is no cure, 
 he becomes entitled to his liberty. As already stated, the 
 mere possibility of his becoming dangerous, through a 
 ■change in the character of the disease, will not justify his 
 further detention. But the confinement of a hopeless case 
 ■of harmless lunacy may be continued, where the lunacy is 
 so grave that the afflicted person is unable to support him- 
 :«elf or to take ordinary care of himself, and where if dis- 
 charged he will become a burden upon the public. That 
 manifestly could only happen where the lunatic was a 
 pauper. If he is possessed of means, and his friends and 
 relatives are willing to take care of him, the forcible confine- 
 ment cannot be justified. These points are so clearly sus- 
 tained by reason that authorities in support of them would 
 not be necessary, if they could be found.^ The difficulties, 
 in respect to the question of confinement of the insane, arise 
 only when we reach the discussion of the preliminary pro- 
 <3eedings, which the law requires to justify the forcible 
 restraint of an insane person. 
 
 It is a constitutional provision of all the States, as well 
 ^s of the United States, that " no man shall be deprived 
 of his life, liberty, and property, except by due process of 
 Jaw." There must be a judicial examination of the case, 
 with a due observance of all the constitutional requirements 
 in respect to trials; and the restraint of one's liberty, in 
 order to be lawful, must be in pursuance of a judgment 
 of a court of competent jurisdiction, after one has had an 
 opportunity to be heard in his own defense. This is the 
 general rule. The imprisonment of a criminal, except as 
 preliminary to the trial, can only be justified when it rests 
 upon the judgment of the court. Since this constitutional 
 provision is general and sweeping in its language, there can 
 be no doubt of its application to the case of confinement 
 
 1 The opinion of Judge Cooley in Van Deusen v. Newcomer, 40 Mich. 
 90, supports them in the main. 
 
 § 43 
 
108 POLICE CONTEOL OF DANGEROUS CLASSES. 
 
 of the insane, and we would, from a consideration of this- 
 constitutional guaranty, be forced to conclude that, except 
 in the case of temporary confinement of the dangerously 
 insane, no confinement of that class of people would be per- 
 missible, except when it is done in pursuance of a judgment 
 of a court, after a full examination of the facts and after 
 an opportunity has been given to the person charged with 
 insanity to be heard in his own defense. Indeed, there is 
 no escape from this conclusion. But the adjudications and 
 State legislation do not seem to support this position alto- 
 gether. 
 
 It is universally conceded that every man for his own 
 protection may restrain the violence of a lunatic, and any 
 one may, at least temporarily, place any lunatic under per- 
 sonal restraint, whose going at large is dangerous to others.^ 
 But this restraint has been held by some authorities to be 
 justifiable without adjudication, only while the danger con- 
 tinues imminent, or as preliminary to the institution of 
 judicial proceedings by which a judgment for permanent 
 confinement may be obtained.^ It is believed that no court 
 would justify a permanent confinement of an insane person 
 at the instance of a stranger without adjudication ; and in 
 almost all of the States the statutes provide for an adjudi- 
 cation of the question of insanity in respect to any sup- 
 posed lunatic found going at large and without a home, and 
 forbid the confinement of such person, except after judg- 
 ment by the court.* It may be assumed, therefore, that in 
 those States the permanent confinement of an alleged in- 
 sane person can not be justified by proof of his insanity, 
 not even of his dangerous propensities, where the confine- 
 
 1 Colby V. Jackson, 12 N. H, 626; Brookshaw v. Hopkins, Loff. 235; 
 Williams ■». Williams, 4 Thomp. & C. 251; Scott o. Wakem, 3 Fost. & 
 Fin. 328; Lott«. Sweet, 33 Mich. 308. 
 
 '' Colby V. Jackson, 12 N. H. 626; Matter of Oaks, 8 Law Reporter, 
 122 ; Com. v. Kirkbride, 3 Brewst. 586. 
 
 ' Harrison's Legislation on Insanity; Look d. Dean, 108 Mass. 116 
 (11 Am. Rep. 323). 
 § 43 
 
THE CONFINEMENT OF THE INSANE, 109 
 
 ment was at the instance of a stranger or an officer of the 
 law, unless it be in pursuance of a judgment of a court of 
 competent jurisdiction. 
 
 But where the confinement is on the request of relatives, 
 whose natural love and affection would ordinarily be ample 
 protection against injustice and wrong, there is a tendency 
 to relax the constitutional protection, and hold that rela- 
 tives may procure the lawful confinement of the insane, 
 without a judicial hearing, provided there is actual insanity. 
 The cases generally hold that extra-judicial confinement at 
 the instance of relatives is lawful, where thelunntic is harm- 
 less, as well as in the case of dangerous lunacy, and it would 
 appear that this is the prevailing opinion.^ If the objec- 
 tions to a judicial hearing were sustainable at all, it would 
 seem that, in these cases of confinement on the request of 
 relatives, there would be the least need of this constitu- 
 tional protection, particularly as the person confined can 
 always, by his own application, or through the application 
 of any one who may be interested in him, have his case 
 brought before a court for a judicial hearing, in answer to a 
 writ of habeas corpus. And it may be that he needs no 
 further protection. But there is still some room for the 
 unlawful exercise of this power of control, prompted by 
 cupidity or hate. This danger may be extremely limited, 
 and the cases of intentional confinement of sane persons 
 may be rare ; still the fact that they have occurred, the 
 difficulty in procuring a hearing before the court after 
 confinement, as well as the explicit declaration of the 
 constitution that no man's liberty can be restrained, 
 except by due process of law, urge us to oppose the 
 prevailing opinion, and to require a judicial hearing to 
 justify any case of confinement, except where an imme- 
 
 1 See Hinchmaii v. Richie, 2 Law Reporter (n. s.). 180; Van Duesen 
 II. Newcomer, 40 Mich. 90; Fletcher v. Fletcher, 1 El. & El. 420; Denny 
 c. Tyler, 3 Allen, 225; Davis D.Merrill, 47 N. H. 208; Cooley on Torts, 
 179; Look 0. Dean, 108 Mass. 116 (11 Am. Rep. 323). 
 
 § 43 
 
110 POLICE CONTEOIi OF DANGEROUS CLASSES. 
 
 diately threatening danger renders a temporary restraint 
 of the insane person necessary, as a protection to the public 
 or to himself. 
 
 § 44. Control of the insane in the asylum. — Another 
 important question is, how far the keepers of an insane 
 person may inflict punishment for the purpose of control. 
 When one is confined in an asylum, on account of insanity, 
 the very mental helplessness would prompt a humanitarian 
 method of treatment, as the best mode of effecting a cure, 
 and the keepers should be severely punished for every act 
 of cruelty, of whatever nature it may be. But still every 
 one will recognize the necessity at times for the infliction 
 of punishment, not only for the proper maintenance of 
 order and good government in the asylum, but also for the 
 good of the inmates. Because one is insane, it does not 
 necessarily follow that he is not influenced in his actions 
 by the hope of reward and the fear of punishment, and> 
 when the infliction of punishment is necessary, it is 
 justifiable. But there is so great an opportunity for 
 cruel treatment, without any means of redress or preven- 
 tion, that the most stringent rules for the government and 
 inspection of asylums should be established and enforced. 
 But within these limitations any mode of reasonable pun- 
 ishment, even corporal punishment, is probably justifiable 
 on the plea of necessity. 
 
 § 45. Punishment of the criminal insane. — It is prob- 
 ably the rule of law in every civilized country, that no in- 
 sane man can be guilty of a crime, and hence can not be 
 punished for what would otherwise be a crime. The ground 
 for this exception to criminal responsibility is, that there 
 must be a criminal intent, in order that the act may consti- 
 tute a crime, and that an insane person can not do an in- 
 tentional wrong. Insanity, when it is proven to have 
 existed at the time when the offense was committed, con- 
 § 45 
 
PUNISHMENT OF THE CRIMINAL INSANE. Ill 
 
 stitutes a good defense, and the defendant is entitled to 
 an acquittal. If the person is still insane, he can be con- 
 fined in an asylum, until his mental health is restored, when 
 he will be entitled to his release, like any other insane per- 
 son. In some of the States, a verdict of acquittal on the 
 ground of insanity, in a criminal prosecution, raises a. prima 
 facie presumption of insanity at the time of acquittal , which 
 will authorize his commitment to an asylum, without fur- 
 ther judicial investigation. Other State statutes provide 
 for his detention, until it can be ascertained by a special 
 examination whether the insanity still continues. But as 
 soon as it is made plain that his reason is restored, he is 
 entitled to his liberty. If his confinement was intention- 
 ally continued after his restoration to reason, it would 
 practically be a punishment for the offense or wrong. Mr. 
 Cooley says : " It is not possible constitutionally to provide 
 that one shall be imprisoned as an insane person, who can 
 show that he is not insane at all." ^ This is very true, but 
 I will attempt to show that there is no constitutional ob- 
 jection to the confinement of the criminal insane, after 
 restoration to sanity, as a punishment for the offense which 
 was committed under the influence of insanity. The chief 
 objection to be met in the argument in favor of the pun- 
 ishment of insane persons for the crime or wrong which 
 they have committed, lies in the commonly accepted doc- 
 trine, that a criminal intent, which an insane person is not 
 capable of harboring, constitutes the essential element of a 
 crime. Without the intent to do wrong there can be no 
 crime. But that is merely an assumption, which rests upon 
 a fallacy in respect to the grounds upon which the State 
 punishes for crime, and which, as soon as it is recognized 
 as a controlling principle, is practically abrogated by divid- 
 ing criminal intent into actual and presumed. It is found 
 on applying the rule to the ordinary experiences of life, 
 
 1 Underwood d. People, 32 Mich. 1; Cooley on Torts, 178, n.2. 
 
 § 45 
 
112 POLICE CONTROL OF DANGEROUS CLASSES. 
 
 that it does not fulfill all the demands of society ; for a 
 strict adherence to the principle would exclude from the 
 list of crimes very many offenses, which the general wel- 
 fare requires to be punished. A man, carried away by a 
 sudden heat of passion, slays another. The provocation 
 enabled the animal passions in him to fetter and blind the 
 i-eason, and without any exercise of will, if by will we mean 
 a rational determination, these passions, differing only in 
 degree and duration from the irresistible impulse of insanity, 
 urged him on to the commission of an act, which no one so 
 bitterly regrets as he does himself, after his mental equi- 
 librium has been restored. Where is the criminal intent in 
 most cases of manslaughter? We are told that the law will 
 presume an intent from the unlawful act. 
 
 A man becomes intoxicated with drink, and thus bereft of 
 his reason he commits a crime. Momentarily he is as much 
 a non compos mentis as the premanently insane. But he is 
 nevertheless punished for his wrongful act ; and we are told, 
 in response to our inquiry after the criminal intent, that 
 the law will again presume it from the act ; for by intoxi- 
 cation he has voluntarily deprived himself of his reasoning 
 faculties, and can not be permitted to prove his drunkenness, 
 in order to claim exemption from criminal responsibility. 
 A man handles a fire-arm or some other dangerous machine 
 or implement with such gross negligence that the lives of 
 all around are endangered, and one or more are killed. The 
 law, at least in some of the States, makes the homicide a 
 crime, and punishes it as one grade of manslaughter, and 
 very rightly. But where is the criminal intent? By the 
 very description of the act, all criminal intent is necesarily 
 excluded. It is negligence, which is punished as a crime. 
 
 Now these cases of presumed intent are recognized as 
 exceptions to the rule, which requires an actual intent to do 
 wrong in order to constitute a crime, because it is felt that 
 something in the way of punishment must be inflicted to 
 prevent the too frequent occurrence of such wrongs, even 
 § 45 
 
PUNISHMENT OF THE CRIMINAL INSANE. 113 
 
 though there is involved in the commission of them no will- 
 ful or intentional infraction of right. 
 
 The idea, that the intent was a necessary element of a 
 <5rime, was derived from the conception of a wrong in the 
 realms of ethics and religion, and is but an outcome of the 
 doctrine of free will. When a man has the power to dis- 
 tinguish and choose between right and wrong, and inten- 
 tionally does a wrong thing, he is then guilty of immorality, 
 and if the act is forbidden by law, of a crime; and punish- 
 ment ought to follow as a just retribution for the wrongful 
 act. But if a man can not, from any uncontrollable cause, 
 distinguish between right and wrong, or if the act is an 
 accident, and he does harm to his neighbor, not having 
 rationally determined to do a thing which he knew to be 
 wrong, he is not guilty of a moral wrong, nor of a crime. 
 If the human punishment of crimes rested upon the same 
 grounds, and proceeded upon the same principles, on 
 which, as we are told, the God of the Universe metes out a 
 just retribution for the infractions of His laws, then clearly 
 there can be no punishment of wrongful acts, as crimes, 
 where there is no moral responsibility. But the punish- 
 ment of crimes does not rest upon the same grounds and 
 principles. The human infliction of punishment is an 
 €xercise of police power, and there is no better settled 
 rule than that the police power of a State must be con- 
 :fined to those remedies and regulations which the safety, 
 or at least the welfare, of the public demands. We punish 
 crimes, not because the criminals deserve punishment, but 
 in order to prevent the further commission of the crime by 
 the same persons and by others, by creating the fear of 
 punishment, as the consequence of the wrongful act. A 
 man, laboring under an insane propensity to kill his fellow- 
 man, is as dangerous, indeed he is more dangerous, than 
 the man who for gain, or under the influence of his aroused 
 passions, is likely to kill another. The insane person is 
 more dangerous, because the same influences are not at 
 
 8 § 45 
 
114 POLICE CONTROL OF DANGEKOU8 CLASSES. 
 
 work on him, as would have weight with a rational, but evit 
 disposed person. And this circumstance would no doubt 
 require special and peculiar regulation for the punishment 
 of the insane, in order that it may serve as a protection to 
 the public, and a restraint upon the harmful actions of the 
 lunatic. If, therefore, the protection to the public be the 
 real object of the legal punishment of crimes, it would be a& 
 lawful to punish an insane person for his wrongful acts as 
 one in the full possession of his mental faculties. The 
 lunatic can be influenced by the hope of reward and the 
 fear of punishment, and he can be prevented in large meas- 
 ure from doing wrong by subjecting him to the fear of 
 punishment. This is the principle upon which the lunatics 
 are controlled in the asylums. It would be no more uncon- 
 stitutional to punish a lunatic outside of the asylum. 
 
 It is not liliely that this view of the relation of the insane to 
 the criminal law will be adopted at an early day, if at all ; for 
 the moral aspect of punish ment has too strong a hold upon the 
 public.^ But if its adoption were possible, it would reduce 
 to a large extent the number of crimes which are alleged to 
 have been committed under the influence of an insanity, 
 which has never been manifested before the wrongful 
 occurrence, and has, immediately thereafter, entirely dis- 
 appeared. 
 
 § 46. Conflnemeut of habitual drimkards. — It is the 
 policy of some States, notably New York, to establish asy- 
 lums for the inebriate, where habitual drunkards are re- 
 ceived andsubjected to a course of medical treatment, which 
 is calculated to efiect a cure of the disease of drinking, as 
 
 1 So strong an influence has this theory over the public mind that in a 
 late number of the North American Beview, a writer attempts to prove 
 the "certainty of endless punishment" for the violation of God's laws, 
 by showing inter alia that even human laws are retributive and not cor- 
 rective, that a criminal is punished for the vindication of a broken law, 
 and not that crime may be prevented. See vol. 140, p. 154. 
 § 46 
 
CONFINEMENT OF HABITUAL DRUNKARDS. 115 
 
 it is claimed to be. A large part of human suffering is the 
 almost direct result of drunkenness, and it is certainly to the 
 interest of society to reduce this evil as much as possible. 
 The establishment and maintenance of inebriate asylums 
 can, therefore, be lawfully undertaken by the State. The 
 only difficult constitutional question, arising in this connec- 
 tion, refers to the extent to which the State may employ 
 force in subjecting the drunkard to the correcting influences 
 of the asylum. Voluntary patients can, of course, be 
 received and be retained, as long as they consent to remain. 
 But they can not be compelled to remain any longer than 
 they desire, even though they have, upon entering the 
 the asylum, signed an agreement to remain for a specified 
 time, and the time has not expired.^ The statutes might 
 authorize the involuntary commitment of inebriates, who 
 are so lost to self-control that the influence of intoxicating 
 liquor amounts to a species of insanity, called dipsomania.^ 
 But, if the habit of drunkenness is not so great as to deprive 
 the individual of his rational faculties, the State has no 
 right to commit him to the asylum for the purpose of effect- 
 ing a reform, no more than the State is authorized ta 
 forcibly subject to medical and surgical treatment one who 
 is suffering from some innocuous disease. If the individual 
 is rational, the only case in which forcible restraint would, 
 be justifiable, would be where the habit of drunkenness,, 
 combined with ungovernable fiery passions, makes the in- 
 dividual a source of imminent danger. Every community 
 has at least one such character, a passionate drunkard, who 
 terrorizes over wife and children, subjects them to cruel 
 treatment, and is a frequent cause of street brawls, con- 
 stantly breaking the peace and threatening the quiet and 
 safety of law-abiding citizens. The right of the State to 
 commit such a person to the inebriate asylum, even where 
 
 1 Matter of Baker, 29 How. Pr. 486. 
 
 2 Matter of Janes, 30 How. Pr. 446. 
 
 § 46 
 
116 POLICE CONTROL OF DANGEROUS CLASSES. 
 
 there has been no overt violation of the law, can not be 
 questioned. A man may be said to have a natural right to 
 drink intoxicating liquor as much as he pleases, provided 
 that in doing so he does not do or threaten positive harm 
 to others. Where, from a combination of facts or circum- 
 stances, his drunkenness does directly produce injury to 
 others, — whether they be near relatives, wife and children, 
 or the community at large, — the State can interfere for 
 the protection of such as are in danger of harm, and for- 
 cibly commit the drunkard to the inebriate asylum. It may 
 be said that any form of drunkenness produces harm to 
 others, in that it is calculated to reduce the individual to 
 pauperism, and throw upon the public the burden of sup- 
 porting him and his family. But that is not a proximate 
 consequence of the act, and no more makes the act of 
 drunkenness a wrong against the public or the family, than 
 would be habits of ifti providence and extravagance. For a 
 poor man intoxication is an extravagant habit. The State 
 can only interfere, when the injury to others is a proximate 
 and direct result of the act of drunkenness, as, for example, 
 where the drunkard was of a passionate nature and was in 
 the habit of beating those about him, while in this drunken 
 frenzy. This is a direct and proximate consequence, and 
 the liability to this injury would be sufficient ground for 
 the interference of the State. But in all of these cases of 
 forcible restraint of inebriates, the restraint is unlawful, 
 except temporarily to avert a threatening injury to others, 
 unless it rests upon the judgment of a court, rendered after 
 a full hearing of, the cause. The commitment on ex parte 
 affidavits would be in violation of the general constitutional 
 provision, that no man can be deprived of his liberty, ex- 
 cept by due process of law.' 
 
 § 47. Police control of va^ants. — The vagrant has.been 
 
 1 Matter of Janes, 30 How. Pr. 446. 
 § 47 
 
POLICE CONTROL OF VAGRAKT8. 117 
 
 very appropriately described as the chrysalis of every 
 species of criminal. A wanderer through the land, with- 
 out home ties, idle, and without apparent means of support, 
 what but criminality is to be expected from such a person ? 
 If vagrancy could be successfully combated, if every one 
 was engaged in some lawful calling, the infractions of the 
 law would be reduced to a surprisingly small number ; and 
 it is not to be wondered at that an eifort is so generally 
 made to suppress vagrancy. The remedy is purely statu- 
 tory, as it was not an offense against the common law. The 
 statutes are usually very explicit as to what constitute va- 
 grancy, and a summary proceeding for conviction, before 
 a magistrate and without a jury, is usually provided, and 
 the ordinary punishment is imprisonment in the county 
 jail. 
 
 The provision of the State statutes on the subject bear a 
 very close resemblance, and usually set forth the same acts 
 as falling within the definition of vagrancy. Webster de- 
 fines a vagrant or vagabond to be " one who wanders from 
 town to town, or place to place, having no certain dwelling, 
 or not abiding in it, and usually without the means of liveli- 
 hood." In the old English statutes, they are described as 
 being " such as wake on the night, and sleep on the day, 
 and haunt customable taverns aud ale-houses, and routs 
 about ; and no man wot from whence they come, nor whither 
 they go." The English, and some of the American stat- 
 utes have stated very minutely what ofi'enses are to be in- 
 cluded under vagrancy. But, apart from those acts which 
 would fall precisely under Mr. Webster's definition, the 
 acts enumerated in the statutes in themselves constitute dis- 
 tinct offenses against public peace, morality, and decency, 
 and should not be classified with vagrancy, properly so- 
 called. Thus, for example, an indecent exposure of one's 
 person on the highway, a boisterous and disorderly parade 
 of one's self by a common prostitute, pretending to tell 
 fortunes and practicing other deceptions upon the public, 
 
 i 47 
 
118 POLICE CONTROL OF DANGEROUS CLASSES. 
 
 and other like acts, are distinct offenses against the public, 
 and the only apparent object of incorporating them into the 
 vagrant act is to secure convictions of these offenses by the 
 summary proceeding created by the act.' Mr. Webster's 
 definition will therefore include all acts that can legitimately 
 come within the meaning of the word vagrancy. 
 
 What is the tortious element in the act of vagrancy ? Is 
 it the act of listlessly wandering about the country, in 
 America called "tramping?" Or is it idleness without 
 visible means of support? Oris it both combined? Of 
 course, the language of the particular statute, under which 
 the proceeding for conviction is instituted, will determine 
 the precise offense in that special case, but the offense is 
 usually defined as above. If one does anything which di- 
 rectly produces an injury to the community, it is to be sup- 
 posed that he can be prevented by appropriate legislation. 
 While an idler running about the country is injurious to the 
 State indirectly, in that such a person is not a producer, 
 still it would not be claimed that he was thus inflicting so 
 direct an injury upon the community as to subject him to 
 the possibility of punishment. A man has a legal right to 
 live a life of absolute idleness, if he chooses, provided he 
 does not, in so living, violate some clear and well defined 
 duty to the State. To produce something is not one of 
 those duties, nor is it to have a fixed permanent home. But 
 it is a duty of the individual so to conduct himself that he 
 will be able to take care of himself, and prevent his becom- 
 ing a public burden. If, therefore, he has sufficient means 
 of support, a man may spend his whole life in idleness and 
 wandering from place to place. The gist of the offense, 
 therefore, is the doing of these things, when one has no 
 visible means of support, thus threatening to become a 
 public burden. The statutes generally make use of the 
 words, "without visible means of support." What is 
 
 » See 2 Broom & Hadley's Com. 467, 468. 
 § 47 
 
POLICE CONTROL OF VAGRANTS. 119 
 
 meant by "visible means?" Is it a man's duty to the 
 public to make his means of support visible, or else subject 
 himself to summary punishment ? Is it not rather the duty 
 •of the State to show affirmatively that this •' tramp" is 
 without means of support, and not simply prove that his 
 means of support are not apparent? Such would be a fair 
 deduction by analogy from the requirements of the law in 
 respect to other offenses. But the very difficulty, in prov- 
 ing affirmatively that a man has no means of support, is, no 
 •doubt, an all-sufficient reason for this departure from the 
 general rule in respect to the burden of proof, and for con- 
 fining the duty of the State to the proof that the person 
 charged with vagrancy is without visible means of support, 
 and throwing upon the individual the burden of proving his 
 ability to provide for his wants. 
 
 An equally difficult question is, what amount and kind 
 of evidence will be sufficient to establish a prima facie case 
 of invisibility of the means of support ? If a man is found 
 supporting himself in his journeyings by means of begging, 
 no doubt that would be deemed sufficient evidence of not 
 having proper means of support. But suppose it cannot be 
 proven that he begs. Will the tattered and otherwise dilap- 
 idated condition of his attire be considered evidence of a 
 want of means? The man may be a miser, possessed of 
 abundant means, which he hoards to his own injury. Has 
 he not a right to be miserly, and to wear old clothes as long 
 as he conforms to the requirement of decency, and may he 
 not, thus clad, indulge in a desire to wander from place to 
 place? Most certainly. He is harming no one, provided 
 he pays for all that he gets, and it would be a plain violation 
 of his right of liberty, if he were arrested on a charge of 
 vagrancy, because he did not choose to expend his means in 
 the purchase of fine linen. Or will the lack of money be 
 evidence that he has no visible means of support? In the 
 first place how can that be ascertained ? Has the State a 
 right to search a man's pockets in order to confirm a sus- 
 
 § 47 
 
120 POLICE CONTROL OF DANGEROtTS CLASSES. 
 
 picion that he has no means of support? And even if such 
 a search was lawful, or the fact that the defendant was 
 without money was established in some other way, the lack 
 of money would be no absolute proof of a want of means. 
 A^ain, a man may have plenty of money in his pocket, 
 and yet have no lawful means of support. And if he is 
 strongly suspected of being a criminal, he is very likely to 
 be arrested as a vagrant. Indeed, the vagrant act is 
 specially intended to reach this class of idlers, as a means of 
 controlling them and ridding the country of their injurious 
 presence. But there is no crime charged against them'. 
 They are usually arrested on mere suspicion of being,, 
 either concerned in a crime recently committed, or then en- 
 gaged in the commission of some crime. That suspicion 
 may rest upon former conviction for crime, or upon the 
 presumptions of association, or the police officer may rely 
 upon his ability to trace the lines of criminality upon the 
 face of the supposed offender. But in every case, where 
 there is no overt criminal act, an arrest for vagrancy is 
 based upon the suspicion of the officer, and it is too often 
 unsupported by any reasonably satisfactory evidence. It is 
 true that very few cases of unjust arrests, i.e., of innocent 
 persons, for vagrancy occur in the criminal practice ; but 
 with this mode of proceeding it is quite possible that such 
 may occur. Moreover, the whole method of proceeding is 
 in direct contradiction of the constitutional provisions that 
 a man shall be convicted before punishment, after proof of 
 the commission of a crime, by direct testimony, sufficient to 
 rebut the presumption of innocence, which the law accords 
 to every one charged with a violation of its provisions. In 
 trials for vagrancy, the entire process is changed, and men 
 are convicted on not much more than suspicion, unless they 
 remove it, to employ the language of the English statute, 
 by "giving a good account of themselves." It reminds 
 one of the police regulation of Germany, which provides 
 that upon the arrival of a person at an inn or boarding- 
 § 47 
 
POLICE CONTROL OF VAGRANTS. 121 
 
 house, the landlord is required to report the arrival to the 
 police, with an account of one's age, religion, nationality, 
 former residence, proposed length of stay, and place of 
 destination. Every one is thus required to "give a good 
 account of " himself, and the regulation is not confined in 
 its operations to suspicious characters. Whatever may be 
 the theoretical and technical objections, to which the 
 vagrancy laws are exposed, and although the arrest by mis- 
 take of one who did not properly come under the definition 
 of a vagrant would possibly subject the officer of the law to 
 liability for false imprisonment, the arrest is usually made 
 of one who may, for a number of the statutory reasons, be 
 charged with vagrancy, and no contest arises out of the 
 arrest. But if the defendant should refuse to give testi- 
 mony in defense, and ask for an acquittal on the ground 
 that the State had failed to establish a prima facie case 
 against him, unless the statute provided that a want of law- 
 ful means of support is sufficiently proved by facts which 
 otherwise would create a bare suspicion of impecuniosity, 
 the defendant would be entitled to a discharge. Punishment 
 for vagrancy is constitutional, provided the offense is 
 proven, and conviction secured in a constitutional manner. 
 And since the summary conviction deprives one of the com- 
 mon-law right of trial by jury, the prosecutions should and 
 must be kept strictly within the limitation of the statute. 
 
 The constitutionality of the vagrancy laws has been sus- 
 tained by the courts, although in none of the cases does it 
 appear that the court considered the view of the question 
 here presented. The discussion cannot be more fitly closed 
 than by the following quotation from an opinion of Judge 
 Sutherland, of the New York judiciary : "These statutes 
 declaring a certain class or description of persons vagrants, 
 and authorizing their conviction and punishment as such, 
 as well as certain statutes declaring a certtiin class or de- 
 scription of persons to be disorderly persons, and author- 
 izing their arrest as such, are in fact rather in the nature of 
 
 § 47 
 
122 POLICE CONTROL OF DANGEROUS CLASSES. 
 
 public regulations to prevent crime and public charges and 
 burdens, than of the nature of ordinary criminal laws, pro- 
 hibiting and punishing an act or acts as a crime or crimes. 
 If the condition of a person brings him within the descrip- 
 tion of either of the statutes declaring what persons shall 
 be esteemed vagrants, he maybe convicted and imprisoned, 
 whether such a condition is his misfortune or his fault. 
 His individual liberty must yield to the public necessity or 
 the public good ; but nothing but public necessity or the 
 public good can justify these statutes, and the summary 
 conviction without a jury, in derogation of the common 
 law, authorized by them. They are constitutional, but 
 should be construed strictly and executed carefully in favor 
 of the liberty of the citizen. Their description of persons 
 who shall be deemed vagrants is necessarily vague and un- 
 certain, giving to the magistrate in their execution an 
 almost unchecised opportunity for arbitrary oppression or 
 careless cruelty. The main object or purpose of the stat- 
 utes should be kept constantly in view, and the magistrate 
 should be careful to see, before convicting, that the person 
 charged with being a vagrant is shown, either by his or her 
 confession, or by competent testimony, to come exactly 
 within the description of one of the statutes." ^ 
 
 §48. Police regulation of mendicancy. — Somewhat ^ 
 akin to the evil of vagrancy, and growing out of it, is com- 
 mon and public mendicancy. The instincts of humanity 
 urge us to relieve our fellow-creatures from actual suffer- 
 ing, even though we fully recognize in the majority of such 
 cases that the want is the natural consequence of vices, or 
 the punishment which nature imposes for the violation of 
 her laws. It would be unwise for State regulation to pro- 
 hibit obedience to this natural instinct to proffer assistance 
 
 ' People V. Forbes, 4 Park. 611. See, also, in affirmance of the consti- 
 tutionality of vagrant laws, People v. Phillips, 1 Park. 95 ; People v. Gray, 
 4 Park. 616; State v. Maxey, 1 McMull. 601. 
 § 48 
 
POLICE REGULATION OF MEDlCANCT. 123 
 
 to suffering humanity.^ Indeed, it would seem to be the 
 absolute right of the possessors of property to bestow it as 
 alms upon others, and no rightful law can be enacted to 
 prohibit such a transfer of property. It certainly could 
 not be enforced. But while we recognize the ennoblins: 
 influence of the practice of phiianthrophy, as well as the 
 immediate benefit enjoyed by the recipient of charity, it 
 must be conceded that unscientific philanthropy, more 
 especially when it takes the form of indiscriminate alms- 
 .giving, is highly injurious to the welfare of the community. 
 Beggars increase in number in proportion to the means pro- 
 vided for their relief. Simply providing for their immedi- 
 ate wants will not reduce the number. On the contrary 
 their number is on the increase. State regulation of charity 
 is therefore necessary, and is certainly constitutional A 
 sound philanthropy would call for the support of those 
 who cannot from mental or physical deficiencies provide 
 themselves with the means of subsistence, and include even 
 those who in their old age are exposed to want in conse- 
 ■quence of the lavish gratification of their vices and passions. 
 But all charity institutions should be so conducted that 
 -every one, coming in contact with them, would be stimu- 
 lated to work. Poor-houses should not be made too invit- 
 ing in their appointments. After providing properly for 
 the really helpless, it would then be fit and proper for the 
 State to prohibit all begging upon the streets and in public 
 resorts. Those who are legitimate subjects of charity 
 should be required to apply to the public authorities. All 
 others should be sent to the jail or work-house, and com- 
 pelled to work for their daily bread. It is conceded that- 
 the State cannot prohibit the practice of private philan- 
 thropy, but it can prohibit public and professional begging, 
 and, under the vagrant laws, punish those who practice it. 
 
 1 The religiou.s aspect of the question is not considered here. 
 
 § 48 
 
124 POLICE CONTROL OF DANGEROUS CLASSES. 
 
 §49. Police supervision of habitual criminals. — A. 
 
 very large part of the duties of the police in all civilized 
 countries is the supervision and control of the criminal 
 classes, even when there are no specific charges of crime 
 lodged against them. A suspicious character appears in 
 some city, and is discovered by the police detectives. He 
 bears upon his countenance the indelible stamp of criminal 
 propensity, and he is arrested. There is no charge of crime 
 against him. He may never have committed a crime, but 
 he is arrested on the charge of vagrancy, and since by the 
 ordinary vagrant acts the burden is thrown upon the de- 
 fendant to disprove the accusation, it is not difficult in most 
 cases to fasten on him the offense of vagrancy, particularly 
 as such characters will usually prefer to plead guilty, in 
 order to avoid, if possible, a too critical examination into 
 their mode of life. But to punish him for vagrancy is not 
 the object of his arrest. The police authorities had, with 
 an accuracy of judgment only to be acquired by a long 
 experience with the criminal classes, determined that he 
 was a dangerous character ; and the magistrate, in order to 
 rid the town of his presence, threatens to send him to jail 
 for vagrancy if he does not leave the place within twenty- 
 four hours. In most cases, the person thus summarily dealt 
 with has been ah'eady convicted of some crime, is known 
 as a confirmed criminal, and his photograph has a place ift 
 the " rogues' gallery." Now, so far as this person has 
 been guilty of a violation of the vagrant laws, he is no 
 doubt subject to arrest and can and should be punished for 
 vagrancy, in conformity with the provisions of the statute. 
 But so far as the police, above and beyond the enforcement 
 of the vagrant law, undertake to supervise and control the 
 actions of the criminal classes, except when a specific crime 
 has been committed and the offender is to be arrested 
 theretor, their action is illegal, and a resistance to the con- 
 trol thus exercised must lead to a release and acquittal of 
 the offender. This is certainly true where the control and 
 § 49 
 
POLICE SUPERVISION OF HABITUAL CRIMINALS. 125 
 
 supervision of the habitual criminals are not expressly 
 authorized by statute. But in some of our States, in con- 
 nection with the punishment of vagrancy, provision is made 
 for the punishment of any " common street beggar, common 
 prostitute, habitual disturber ot the peace, known pick- 
 pockets, gambler, burglar, thief, watch-stuffer, ball-game 
 player, a person who practices any trick, game, or device 
 with intent to swindle, a person who abuses his family, and 
 any suspicious person who cannot give a reasonable account 
 of himself." ^ Laws of this character have been enacted, 
 and the constitutionality of them sustained in Ohio, Mary- 
 land, Pennsylvania and Kentucky.'' The only serious con- 
 stitutional objection to these laws for the punishment of 
 habitual criminals is that they provide a punishment for 
 the existence of a status or condition, instead of for a crime 
 or wrong against society or an individual. If an individual 
 has become an habitual criminal, i.e., that he has com- 
 mitted, and is still committing, a number of offenses against 
 the law, for each and every offense he may be punished, 
 and the punishment may very properly be made to increase 
 with every repetition of the offense. But this person can 
 hardly be charged with the crime of being a common or 
 habitual law-breaker. After meting out to him the punish- 
 ment that is due to his numerous breaches of the law, he has 
 paid the penalty for his infractions of the law, and stands 
 before it a free man. 
 
 There can be no doubt that constant wrong-doing warps 
 the mind, and more or less permanently changes the charac- 
 ter, producing a common or habitual criminal. But to say 
 that the being an habitual criminal is a punishable offense, 
 is to say that human punishment is endless, for it is an 
 attempt to punish a condition of mind and character, which 
 
 1 Eev. Stat. Ohio, § 2108. 
 
 ' Morgan v. Nolte, 37 Ohio St. 23 (il Am. Eep. 485) ; Byers v. Com- 
 monwealtji, 42 Pa. Sf. 96; World v. State, 60 Md. 64; Commonwealth o. 
 Hopkins, 2 Dana, 418. 
 
 § 49 
 
126 POLICE CONTKOL OP DANGEROUS CLASSES. 
 
 only years of patient and arduous struggle can obliterate or 
 change. The practical effect of such laws, when vigorously 
 enforced, is to make of such a person an outlaw, without 
 home or country, driven from post to post, for his habitual 
 criminality is an offense against such laws of every com- 
 munity into which he may go, it matters not where the 
 offenses were committed which made him an habitual crim- 
 inal.^ Even the habitual criminal has a right to a home, a 
 resting-place. If the hardened character of the criminal 
 makes his reform an impossibility, and renders him so dan- 
 gerous to the community that he cannot be allowed to live 
 as other men do, he may be permanently confined for life 
 as a punishment of the third, fifth, or other successive com- 
 mission of the offense ; he may be placed under police sur- 
 veillance, as is the custom in Europe, and he may be com- 
 pelled, by the enforcement of the vagrant laws, to engage 
 in some lawful occupation. But it is impossible to punish 
 him, as for a distinct offense, for being what is the necessary 
 consequence of those criminal acts, which have been already 
 expiated by the infliction of the legal punishment. 
 
 But the laws have been generally sustained, wherever 
 their constitutionality has been brought into question. In 
 criticising the objection just made, the Supreme Court of 
 Ohio say : " The only limitations to the creation of offenses 
 by the legislative power are the guaranties contained in the 
 bill of rights, neither of which is infringed by the statute in 
 question. It is a mistake to suppose that offenses must be 
 confined to specific acts of commission or omission. A gen- 
 eral course of conduct or mode of life, which is prejudicial 
 to the public welfare, may likewise be prohibited and pun- 
 ished as an offense. Such is the character of the offense in 
 question. * * * At common law a common scold was 
 indictable; so also a common barrator; and, by various 
 English statutes, summary proceedings were authorized 
 
 1 Commonwealth v. Hopkins, 2 Dana, 418. 
 § 49 
 
POLICiB SUPERVISION OF HABITUAL CRIMINALS. 127 
 
 against idlers, vagabonds, rogues, and other classes of dis- 
 orderly persons.^ In the several States in this country- 
 similar offenses are created. In some of the States it is 
 made an offense to be a common drunkard, a common 
 gambler, a common thief, each State defining the offenses 
 according to its own views of public policy. * * * Ju 
 such cases the offense does not consist of particular acts, 
 but in the mode of life, the habits and practices of the 
 accused in respect to the character or traits which it is the 
 object of the statute creating the offense to suppress." ^ 
 A practical difficulty in enforcing snch laws would arise 
 in determining what kind of evidence, and how much, 
 it was necessary to convict one of being a common or 
 habitual criminal. Conceding the constitutionality of 
 the law which makes habitual criminality a distinct pun- 
 ishable offense, the position assumed by the Kentucky 
 court, in respect to the quality and character of the evidence 
 needed to procure a conviction under the law, cannot be 
 questioned. The court say: "It is the general course of 
 conduct in pursuing the business or practice of unlawful 
 gaming, which constitutes a common gambler. As a man's 
 character is no doubt formed by, and results from, his 
 habits and practices; and we may infer, by proving his 
 character, what his habits and practices have been. But 
 we do not know any principle of law, which sanctions the 
 introduction of evidence to establish the character of the 
 accused, with a view to convict him of offending against the 
 law upon such evidence alone. If the statute had made it 
 penal to possess the character of a common gambler, the 
 rejected testimony would have been proper. But we appre- 
 hend that the question whether a man is, or is not, a com- 
 
 1 See Stephen's Dig. of Crim. Law, art. 193. 
 
 * Morgan v. Nolte, 37 Ohio St. 23 (41 Am. Rep. 485). And it is also 
 held to be constitutional to provide for the punishment of such offenses 
 by a summary conviction without jury trial. Byers v. Commonwealth, 
 42Pa. St. 89. 
 
 § 49 
 
128 POLICE CONTKOL OF DANGEEODS CLASSES. 
 
 mon gambler, depends upon matters of fact — his practices, 
 and not his reputation or character; and, therefore, the 
 facts must be proved, as in other cases. 
 
 "The attorney for the Commonwealth offered to prove 
 by a witness, that the accused ' had played at cards for 
 money,' since February, 1833, and before the finding of 
 the indictment. The court rejected the evidence, and we 
 think erroneously. How many acts there were, of playing 
 and betting, or the particular circumstances attending each, 
 cannot be told, inasmuch as the witness was not allowed to 
 make his statement. Every act, however, of playing and 
 betting at cards, which the testimony might establish, would 
 have laid some foundation on which the venire could have 
 rested, in coming to the conclusion, whether the general 
 conduct and practices of the accused did, or did not, con- 
 stitute him a common gambler. One, or a few acts of bet- 
 ting and playing cards might be deemed insufficient, under 
 certain circumstances, to establish the offense. For in- 
 stance, if the acccused, during the intervals between the 
 times he played and bet, was attending to some lawful 
 business, his farm, his store, or his shop, it might thereby 
 be shown that his playing and betting were for pastime and 
 amusement merely. Under such circumstances the evi- 
 dence might fail to show the accused was a common gam- 
 bler. Thus, while many acts of gaming may be palliated* 
 so as to show that the general conduct and practices of an 
 individual are not such as to constitute him a common 
 gambler; on the other hand, a single act may be attended 
 with- such circumstances as to justify conviction. For 
 example, if an individual plays and bets, and should at the 
 time display all the apparatus of an open, undisguised, 
 common gambler, it would be competent for the jury, 
 although he was an entire stranger, to determine that he fell 
 within the provisions of the statute. The precise nature of 
 the acts which the testimony would have disclosed, had it 
 been heard, is unknown ; but we perceive enough to 
 § 49 
 
POLICE SUPERVISION OE HABITUAL CRIMINALS. 129 
 
 convince us that it was relevant and ought to have been 
 heard. 
 
 " The attorney for the Commonwealth offered to prove 
 by a witness, that the accused had, within the period afore- 
 said, set up and kept faro banks and other gaming tables, 
 at which money was bet, and won and lost, at places with- 
 out the county of Fayette, where the indictment was 
 found ; and the court excluded the testimony. In this the 
 oourt clearly erred. It makes no difference where the 
 gaming takes place. If a person has gamed until he is a 
 common gambler, without the county of Fayette, he may 
 go to that county for the purpose of continuing his prac- 
 tices. In such a case it was the object of the statute to 
 -arrest him as soon as possible by conviction, and requiring 
 the bond provided for in the sixth section of the act of 
 1833. The testimony should have been admitted." ^ 
 
 J Commonwealth v. Hopkins, 2 Dana, 418. In the following opinion 
 Is discnssed the amount and character of the evidence required to con- 
 Tict one of being a common thief : " The act of the assembly under which 
 appellant was indicted, provides that ' any evidence of facts or reputa- 
 tion, proving that such a person is habitually and by practice a thief, shall 
 be sufficient for his conviction, if satisfactorily establishing the fact.' In 
 order to justify a conviction of a party of the offense created by the act, 
 there must be proof of either facts or reputation, sufficient to satisfy the 
 jury that the party accused is hy practice and habit a thief. The offense 
 is but a misdemeanor, and it must, therefore, be prosecuted within one 
 year from the time of its commission. It is necessary, in order to justify 
 conviction, that the proof should establish the fact that the accused vras 
 ' a common thief ' -within one year before the prosecution was begun, and 
 therefore, evidence of 'acts of larceny,' committed more than a year 
 before the indictment v^as found, would not be admissible. Though the 
 conviction of the accused of the larceny of a watch was within a year be- 
 fore this prosecution was begun, it was contended that, standing alone, It 
 was not sufficient to prove that the accused was by habit and practice a 
 thief, and that it was not admissible, unless connected with an offer to 
 follow it up with other proof to the same point, and that, as no such 
 offer was made, the criminal court erred in admitting it. It did not mat- 
 ter that the record of the conviction of the accused, of larceny in 1877, 
 did not prove the whole Issue. The court had no right to require 
 the State's attorney to disclose in advance what other proof he intended 
 to o&er. While the record of conviction was not of itself legally sufficient 
 
 9 § 49 
 
130 POLICE CONTROL OF DANGEROUS CLASSES. 
 
 Another phase of police supervision is that of photograph- 
 ing alleged criminals, and sending copies of the photograph 
 to all detective bureaus. If this be directed by the law as^ 
 punishment for a crime of which the criminal stands con- 
 victed, or if the man is in fact a criminal, and the photo- 
 graph is obtained without force or compulsion, there can b& 
 no constitutional or legal objection to the act ; for no right, 
 has been violated. But the practice is not confined to the- 
 convicted criminals. It is very often employed against 
 persons who are only under suspicion. In such a case, if 
 the suspicion is not well founded, and the suspected person 
 is in fact innocent, such use of his protograph would be a. 
 libel, for which every one could be held responsible who 
 was concerned in its publication. And it would be an, 
 actionable trespass against the right of personal security, 
 whether one is a criminal or not, to be compelled involun-^ 
 tarily to sit for a photograph to be used for such purposes, 
 unless it was imposed by the statutes as a punishment for 
 the crime of which he has been convicted. 
 
 These are the only modes of police supervision of habit- 
 ual criminals which the American law permits. But onth& 
 continent of Europe, it seems that the court may, even in 
 cases of acquittal of the specific charge, under certain 
 limitations which vary with each statute, subject an evil 
 character after his discharge to the supervision and control 
 of the police. Such persons are either confined within 
 
 to convict, it was a link in the chain of evidence admissible per se, -whem 
 ofEered, as tending to prove the issue. Its legal effect was a question for 
 the jury to determine, they being under our constitution the judges o^ 
 the law and the facts in criminal cases. So also with respect to the 
 objection to the evidence of the reputation of the accused, as given by the 
 police officer. Reputation is but a single fact, and the whole may be given 
 in evidence, commencing at a period more than a year before the indict- 
 ment was found. The reputation which the accused bore at a time more 
 than a year before the indictment, was admissible, though it would not. 
 of itself justify a conviction, and unless followed up with proof that such 
 reputation continued, and was borne by the accused within a year before.- 
 the indictment was found." World v. State, 50 Md. 4. 
 § 49 
 
STATE CONTKOIi OF MINORS. 131 
 
 certain districts, or are prohibited from residing in certain 
 localities. They are sometimes compelled to report to 
 certain police officers at stated times, and other like provis- 
 ions for their control are made. This police supervision 
 lasts during life, or for some stated period which varies with 
 the gravity of the offense and the number of offenses which 
 the person under supervision has committed. Similar 
 regulations have been established in England, by " The 
 Habitual Criminal Act."^ 
 
 As a punishment for crime, there can be no doubt of the 
 power of the legislature to institute such police regulations, 
 unless the length of time, during which the convicted crim- 
 nal is kept under surveillance, would expose the regulation 
 to the constitutional objection of being a cruel and unusual 
 punishment. But to enforce such a regulation in any other 
 manner, or under any other character, than as a punish- 
 ment for a specific crime, would clearly be a violation of 
 the right of personal liberty, not permitted by the constitu- 
 tion. 
 
 Police supervision of prostitutes, so universal a custom in 
 the European cities, is sometimes considered in the same 
 light, but is essentially different. Prostitution is an offense 
 against the law, and these city ordinances render lawful the 
 practice by authorizing its prosecution under certain limita- 
 tions and restrictions, among which are police supervision 
 and inspection. But the subjection to this control is vol- 
 untary on the part of the prostitute, in order to render 
 practices lawful which are otherwise unlawful. It is rather 
 in the character of a license, under certain restraints, to 
 commit an offense against public morality. 
 
 § 50. State control of mixiors. — It is not proposed to 
 discuss in this connection the power of the State to inter- 
 fere with the parent's enjoyment of his natural right to the 
 
 1 32 and 33 Vict., ch. 99. See Follzeiaufsicht in Von Holtzendorff's 
 Eechtslexikon, vol. 2, pp. 322, 323. 
 
 § 50 
 
132 POLICE CONTROL OF DANGEROUS CLASSES. 
 
 care and education of his minor child. The regulation of 
 fBis relative right will be explained in a subsequent section.^ 
 Here we shall make reference only to the power of the 
 State to take into its care and custody the young children 
 who have been robbed by death of parental care, and but 
 fbt State interference would be likely to suffer want, or at 
 least to grow up in the streets, without civilizing influences, 
 and in most cases to swell the vicious and criminal classes. 
 There can be no doubt that, in the capacity of a parens 
 pairice, the State can, and should, make provision for the 
 care and education of these wards of society, not only for 
 the protection of society, but also for the benefit of the chil- 
 dren themselves. The State owes this duty to all classes, 
 who from some excessive disability are unable to take care 
 Of themselves. It is clear, as has already been stated, and 
 Explained in several connections, the State has no right to 
 fbrce a benefit upon a full grown man, of rational mind, 
 against his will. But the minor child is not any more cap- 
 able of determining what is best for himself than a lunatic 
 is. Being, therefore, devoid of the average mental powers 
 6t an adult, he is presumed to be incapable of taking care of 
 hiinself, and the State has the right, in the absence of some 
 dne upon whom the law of nature imposes this duty, to take 
 the child in custody, and provide for its nurture and educa- 
 tibn. This subjection to State control continues during 
 minority. 
 
 Now, there are two ways in which the State can interfere 
 in the care and management of a child without parental care. 
 It can either appoint some private person as guardian, into 
 whose custody the child is placed, or it may direct him to 
 be sent to an orphan asylum or reformatory school, 
 especially established for the education and rearing of 
 children who cannot be otherwise cared for. The right of 
 the State to interfere in either way, has never been disputed, 
 
 1 See post, §§ 165, 166o. 
 § 60 
 
STATE CONTROL OF MINORS. 1,3^ 
 
 ]but a serious and important question has arisen as to the 
 necessary formalities of the proceedings, instituted to bring 
 such children under the control of the State. As already 
 explained, the constitution provides, in the most general 
 tprms, that no man shall be deprived of his liberty, except 
 by due process of law. Of course, minors are as entitled to 
 the benefit of this constitutional protection as any adult, 
 within, what must necessarily be supposed to have been, the 
 intended operation of this provision . In the nature of things, 
 we cannot suppose the authors of this provision to have in- 
 tended that, before parents could exercise control over theii* 
 minor children, and restrain them of their liberty, they 
 would be compelled to apply to a court for a decretal ordjejr 
 authorizing the restraint. The law of nature requires the sub- 
 jection of minors to parental control, and we therefore con- 
 clude that " the framers of the constitution could not, as men 
 of ordinary prudence and foresight, have intended to prohibit 
 [such control] in the particular case, notwithstanding the lan- 
 guage of the prohibition would otherwise include it."* The 
 subjection of minors to control being a natural and ordinary 
 condition, when it is clearly established that the State, as 
 parens patriae, succeeds to the parent's rights and duties, in 
 respect to the care of the child, due process of law would Jje 
 no more necessary to support the assumption of control by 
 the State than it is necessary to justify the parental control. 
 The child is not deprived of a natural right, and hence h,e Jjs 
 not deprived of his liberty in any legal sense of the term. 
 In a late case the Supreme Court of Illinois has, in an opin- 
 ion exhibiting considerable warmth of feeling, declared that 
 an adjudication is necessary before the child can be deprived 
 of its natural liberty." 
 
 1 Christiancy, J., in People o. Plank Road Co., 9 Mich. 285. 
 
 ' " In cases of writs of habeas corpus to bring up infants, there are 
 other rights besides the rights of the father. If improperly or illegally 
 restrained, it is our duty, ex debito jusUtice to liberate. The welfare and 
 
 § 50 
 
1S4 POLICE CONTROL OF, DANGEROUS CLASSES. 
 
 This is really only a dictum of the court, so tar as it 
 affirms the right of a child to a trial, before the State can 
 place him under restraint, for in this case the boy was 
 taken from the custody of his father, and the real ques- 
 tion at issue was whether the State had a right to interfere 
 with the father's control of the boy. This aspect of the 
 
 rights of the child are also to be considered. The disability of minors 
 does not make slaves or criminals of them. They are entitled to legal 
 rights, and are under legal liabilities. An implied contract for necessa- 
 ries is binding on them. The only act which they are under a legal inca- 
 pacity to perform, is the appointment of an attorney. All their other 
 acts are merely voidable or conflrmable. They are liable for torts and 
 punishable for crime. Every child over ten years of age may be found 
 guilty of crime. For robbery, burglary, or arson, any minor may be sent 
 to the penitentiary. Minors are bound to pay taxes for support of the 
 government, and constitute a part of the militia, and are compelled to 
 endure the hardship and privation of a soldier's life, in defense of the 
 constitution and the laws; and yet it is assumed that to them liberty is a 
 mere chimera. It is something of which they may have dreamed, but 
 have never enjoyed the fruition. 
 
 " Can we hold children responsible for crime, liable for torts, impose 
 onerous burdens upon them, and yet deprive them of the enjoyment of 
 liberty without charge or conviction of crime? The bill of rights de- 
 clares that ' all men are, by nature, free and independent, and have cer- 
 tain inherent and inalienable rights — among these are life, liberty, and 
 the pursuit of happiness.' This language is not restrictive; it is broad 
 and comprehensive, and declares a grand truth; that 'all men,' all people, 
 everywhere, have the inherent and inalienable right to liberty. Sliall we 
 say to the children of the State, you shall not enjoy this right — a right 
 independent of all human laws and regulations? It is declared in the 
 constitution; is higher than the constitution and law, and should be 
 held forever sacred. 
 
 " Even criminals can not be convicted and imprisoned without due 
 process of law — without regular trial, according to the course of the 
 common law. Why should minors be imprisoned for misfortune? Des- 
 titution of proper parental care, Ignorance, idleness and vice, are 
 misfortunes, not crimes. In all criminal prosecutions against minors for 
 grave and heinous offenses, they have the right to demand the nature 
 and cause of the accusation, and a speedy public trial by an impartial 
 jury. All this must precede the final commitment to prison. Why should 
 children, only guilty of misfortune, be deprived of liberty without ' due 
 process of law? ' 
 § 50 
 
STATE CONTROL OF MINOE8. 135 
 
 question will be presented subsequently.^ The following 
 tjalm, dispassionate language of the Supreme Court of Ohio 
 -commends itself to the consideration of the reader. It was 
 a case of committal to reformatory sjhool on an ex parte 
 examination by the grand jury, of a boy under sixteen, who 
 had been charged with crimen under statutes which author- 
 ize and direct the proceeding: — 
 
 " The proceeding is purely statutory; and the com- 
 mitment, in cases like the present, is not designed as a 
 punishment for crime, but to place minors of the descrip- 
 tion, and for the causes specified in the statute, under the 
 guardianship of the public authorities named, for proper 
 care and discipline, until they are reformed, or arrive at 
 the age of majority. The institution to which they are 
 committed is a school, not a prison, nor is the character of 
 this detention affected by the fact that it is also a place 
 where juvenile convicts may be sent, who would otherwise 
 be condemned to confinement in the common jail or peni- 
 tentiary. * * * Owing to the exparte character of the 
 proceeding, it is possible that the commitment of a person 
 might be made on a false and groundless charge. In s^ch 
 a case neither the infant nor any person who would, in the 
 absence of such commitment, be entitled to his custody 
 and services, will be without remedy. If the remedy pro- 
 
 1 " It cannot be said that in tliis case tliere is no imprisonment. Tliis boy 
 is deprived of alatlier'scare; bereft of home influences ; has no freedom 
 of action ; is committed for an uncertain time ; is branded as a prisoner ; 
 made subject to the will of others, and thus feels that he is a slave. 
 Nothing could more contribute to paralyze the youthful energies, crush 
 all noble aspirations, and unfit him for the duties of manhood. Other 
 means of a milder character; other influences of a more kindly nature ; 
 other laws less in restraint of liberty would better accomplish the re- 
 formation of the depraved, and infringe less upon inalienable rights." 
 People V. Turner, 66 111. 280. But see, contra, Ex parte Ferrier, 103 111. 
 367 (42 Am. Eep. 10). 
 » See post, § 1660. 
 
 § 50 
 
136 POLICE CONTEOL OF DANGEEOUS CLASSES. 
 
 vided in the twentieth section should not be adequate or 
 available, the existence of a sufficient cause for the de- 
 tention might, we apprehend, be inquired into by a pror 
 ceeding in habeas corpus." ^ 
 
 1 Frescottv. State, 19 Ohio St. 181 (2 Am. Bep. 388;. 
 § 50 
 
CHAPT.EK VI. 
 
 POLICE REGULATIONS OF THE RIGHTS OF CITIZENSHIP AND 
 
 DOMICILE. 
 
 Section 56. Citizenship and domicile distinguished. 
 
 67. Expatriation. 
 
 68. Natnralization. 
 
 59. Prohibition of emigration. 
 
 60. Compulsory emigration. 
 
 61. Prohibition of immigration. 
 
 62. The public duties of a citizen. 
 
 § 56. Citizenship and domicile distinguished. — The 
 
 distinction between citizenship and domicile has been so 
 often explained in elementary treatises that only a passing 
 reference will be needed here, in order to refresh the mem- 
 ory of the reader. Mr. Cooley defines a citizen to be "a 
 member of the civil state entitled to all its privileges."^ 
 Mr. Blackstone's definition of allegiance, which is the obli- 
 gation of the citizen, is "the tie which binds the subject 
 to the sovereign, in return for that protection which the 
 sovereign affords the subject."* Citizenship, therefore, is 
 that political status which supports mutual rights and obli- 
 gations. The State, of which an individual is a citizen, may 
 require of him various duties of a political character ; while 
 he is entitled to the protection of the government against 
 all foreign attacks, and is likewise invested with political 
 rights according to the character of the government of the 
 State, the chief of which is the right of suffrage. 
 
 Domicile is the place where one permanently resides. 
 One's permanent residence may be, and usually is, in the 
 country of which he is a citizen, but it need not be, and 
 
 1 Cooley on Const. Law, 77. 
 • 1 Bl. Com. *441. 
 
 (137) § 5(5 
 
138 POLICE REGULATIONS OF RIGHTS OF CITIZENSHIP. 
 
 very often is not. One can be domiciled in a foreign land. 
 While a domicile in a foreign State subjects the individual 
 and his personal property to the regulation and control of 
 the law of the domicile, i.e., creates a local or temporary 
 allegiance on the part of the individual to the State in 
 which he is resident, and although he can claim the protec- 
 tion of the laws during his residence in that State, he does 
 not assume political obligations or acquire political rights, 
 and can not claim the protection of the government, after 
 he has taken his departure from the country. Only a citi- 
 zen can claim protection outside of the country. 
 
 There is no permanent tie binding the resident alien to 
 the State, and there is no permanent obligation on the part 
 of either. The individual is at liberty to abandon his dom- 
 icile, whenever he so determines, without let or hindrance 
 on the part of the State, in which he has been resident. 
 This is certainly true of a domicile in a foreign country. 
 
 § 57. Expatriation. — But it has been persistently main- 
 tained by the European powers, until within the last twenty 
 years, that the citizen cannot throw off his allegiance, and by 
 naturalization become the citizen of another country. The 
 older authorities have asserted the indissolubility of the alle- 
 giance of the natural-born subject to his sovereign or State. 
 Mr. Blackstone says, " it is a principle of universal law that 
 the natural-born subject of one prince cannot by any act of 
 his own, no, not by swearing allegiance to another, put off or 
 discharge his natural allegiance to the former ; for this nat- 
 ural allegiance was intrinsic and primitive, and antecedent 
 to the other ; and cannot be divested without the concur- 
 rent act of the prince to whom it was due." ^ Although all 
 the States of Europe have provided for the naturalization 
 of aliens, they have uniformly denied to their own subjects 
 the right of expatriation. But when emigration to this 
 country became general, this right was raised to an interna- 
 
 1 1 Bl. Com. *446. 
 § 57 
 
EXPATRIATION. 139 
 
 tional question of great importance, and in conformity with 
 their own interests and their general principles of civil lib- 
 erty, the United States have strongly insisted upon the 
 natural and absolute right of expatriation. This question 
 has been before the courts of this country,^ and at an early 
 day the Supreme Court of the United States showed an in- 
 clination to take the European view of this right.* But 
 the question has been finally settled in favor of the right of 
 expatriation, so far at least as the government of the 
 United States is concerned, by an act of Congress in the 
 following terms : — 
 
 " Whereas, the right of expatriation is a natural and in- 
 herent right of all people, indispensable to the enjoyment 
 -of the rights of life, liberty and the pursuit of happiness ; 
 and whereas, in the recognition of this principle, this gov- 
 ernment has freely received emigrants from all nations, and 
 invested them with the rights of citizenship ; and whereas 
 it is claimed, that such American citizens, with their de- 
 scendants, are subjects of foreign States, owing allegiance 
 to the governments thereof ; and whereas it is necessary to 
 the maintenance of public peace that this claim of for- 
 eign allegiance should be promptly and finally disavowed : 
 therefore, be it enacted by the Senate and House of Rep- 
 resentatives of the United States of America, in Congress 
 assembled, that any declaration, instruction, opinion, order 
 or decision of any ojBGicer of this government, which denies, 
 
 ^ See Inglis v. Sailor's Snug Harbor, 3 Pet. 99; Shanks v. Dupont, 3 
 Pet. 242; Stoughton ». Taylor, 2 Paine, 655; Jackson v. Burns, 3 Binn. 
 
 ' " In the first place, she was born under the allegiance of the British 
 crown, and no act of the government of Great Britain has absolved her 
 from that allegiance. Her becoming a citizen of South Carolina did not, 
 ipso facto, work any dissolution of her original allegiance, at least so far 
 as the rights and claims of the British crown were concerned." Shanks 
 V. Dupont, 3 Pet. 242. See Talbot ». Janson, 3 Dall. 133; Isaac Will- 
 iam's case, 2 Cranch, 82, note ; Murray v. The Charmmg Betsey, 2 Cranch, 
 64; The Santissima Trinidad, 7 Wheat. 283; United States « Gillies, 1 
 Pet. C. C. 169; Ainslee v. Martin, 9 Mass. 464. 
 
 § 57 
 
140 POLICE RBGULATIONa OF EIGHTS OP CITIZBNSHIP. 
 
 restricts, impairs or questions the right of expatriation is 
 hereby declared inconsistent with the fundamental prin- 
 ciples of this government." ^ 
 
 The United States government has actively sought the 
 establishment of treaties with other countries, in which the 
 absolute right of expatriation is unqualifiedly recognized ; 
 and such great success has attended these efforts, that 
 expatriation may now be asserted to be a recognized inter- 
 national right, which no government can deny.^ 
 
 § 58. iNTaturalizatioD . — In order that one may expatri- 
 ate himself, he must, by naturalization, become the citizen of 
 another State. International law does not recognize the 
 right to become a cosmopolitan. But because expatriation 
 is recognized as a right indispensable to the enjoyment of 
 the rights of life, liberty, and the pursuit of happiness, and 
 which cannot be abridged or denied to any one, it does not 
 follow that one has a natural and absolute right to become 
 the citizen of any State which he should select. A State 
 has as absolute a right to determine whom it shall make 
 citizens by naturalization, as the individuals have to deter- 
 mine of what State they will be citizens. Citizenship by 
 birth within the country does not depend upon the will of 
 society. By a sort of inheritance the natural-born citizen 
 acquires his right of citizenship. But when a foreigner 
 applies for naturalization, his acquisition of a new citizen- 
 ship depends upon the agreement of the two contracting 
 parties. 
 
 The State, therefore, has the unqualified right to deny 
 citizenship to any alien who may apply therefor, and the 
 grounds of the objection cannot be questioned. The alien 
 has no political rights in the State, and he cannot attack 
 the motive of the State iu rejecting him. 
 
 1 Act of July 27, 1868, 15 Stat, at Large, 223, 224. 
 
 ' The United States have entered into such treaties with almost all the 
 countries of Europe. 
 
 § 58 
 
COMPULSORY EMIGRATION. 141 
 
 § 59. Prohibition of emigration. — Political economy 
 teaches us that national disaster may ensue from an exces- 
 sive depopulation of the country. When the population 
 of a country is so small that its resources can not be de- 
 veloped, it is an evil which emigration in any large degree 
 would render imminent ; and the temptation would, under 
 such circumstances, be great to prohibit aud restrain the 
 emigration to other lands, while the impulse would increase 
 m proportion to the growth of the evil of depopulation. 
 Has the State the right to prohibit emigration, and prevent 
 it by the institution of the necessary police surveillance ? 
 It cannot be questioned that the State may deny the right 
 of emigration to one who owes some immediate service 
 "to the State, as for example in the case of war when 
 one has been drafted for the army, or where one under the 
 laws of the country is bound to perform some immediate 
 military service.^ But it would seem, with this exception, 
 that the natural aud unrestricted right of emigration would 
 be recognized as a necessary consequence of the recognition 
 of the right of expatriation. If expatriation is indispensa- 
 ble to the enjoyment of the rights of life, liberty and the 
 pursuit of happiness, the right of emigration must be more 
 ossential; for expatriation necessarily iuvolves emigration, 
 although emigration may take place without expatriation. 
 But this right of prohibition was once generally claimed 
 and exercised and Russia still exercises the right.^ 
 
 § 60. Compulsory emigration. — General want and suf- 
 fering may be occasioned by over-population. Indeed, ac- 
 cordmg to the Malthusian theory, excessive population is 
 the great and chief cause of poverty. From the standpoint 
 ol public welfare, it would seem well for the State to de- 
 termine how many and who, should remain domiciled in 
 
 1 The compulsory military service for four of the best years of a man's 
 life has been the chief moving cause of emigration of the Germans. 
 
 2 Phillemore International Law, 348, 349. 
 
 § 60 
 
142 POLICE REGULATIONS OF RIGHTS OF CITIZENSHIP. 
 
 the country, in order that the population may be regulated: 
 and kept within the limits of possible well-being, and trans- 
 port the excess of the populatioa to foreign uninhabited. 
 lands, or to other parts of the same country, which are 
 more sparsely settled. But from the standpoint of the in- 
 dividual and of his rights, this power of control assumes a 
 different aspect. If government is established for the bene- 
 fit of the individual, and society is but a congregation of 
 individuals for their mutual benefit ; once the individual is 
 recognized as a part of the body politic, he has as much 
 right to retain his residence in that country as his neighbor ; 
 and there is no legal power in the State to compel him to 
 migrate, in order that those who remain may have more 
 breathing space. Let those emigrate who feel the need of 
 more room. 
 
 Another cause of evil, which prompt the employment of 
 the remedy of compulsory emigration, would be an meradi- 
 cable antagonism serious enough to cause or to threaten so- 
 cial disorder and turmoil. Can the government make a forced 
 colonization of one or the other of the antagonistic races? 
 This is a more stubborn evil than that which arises from ex- 
 cessive population ; for want, especially when the government 
 ofiers material assistance, will drive a large enough number 
 out of the country to keep down the evil. The only modem 
 case of forcible emigration, known to history, is that of the' 
 Acadians. Nova Scotia was originally a French colony, 
 and when it was conquered by the British, a large non- 
 combatant population of French remained, but refused to 
 take the oath of allegiance. The French in the neighboring 
 colonies kept up communication with these French inhabit- 
 ants of Nova Scotia and, upon the promise to recapture the 
 province, incited them to a passive resistance of the British 
 authority. The presence of such a large hostile populatioa 
 certainly tended to make the British hold upon Nova Scotia 
 very insecure, and the English finally compelled these French 
 people to migrate. While the circumstances tend to miti- 
 « GO 
 
COMPULSORY EMIGRATION. 143 
 
 gate the gravity of this outrage upon the rights of the indi- 
 vidual, the act has been universally condemned. ^ The State 
 has no right to compel its citizens to emigrate for any cause, 
 except as a punishment for crime. It may persuade and 
 offer assistance, but it can not employ force in eflTecting 
 emigration, whatever may be the character of the evil, which 
 threatens society, and which prompts a compulsory emigra- 
 tion of a part of its population. 
 
 But it does not follow from this position, that the State 
 has not the right to compel the emigration of residents of 
 the country, who are not citizens. The obligation of the 
 State to resident aliens is only temporary, consists chiefly 
 in a guaranty of the protection of its laws, as long as the 
 residence continues, and does not deprive the State of the 
 power to terminate the residence by their forcible removal. 
 They can be expelled, whenever their continued residence 
 for any reason becomes obnoxious or harmful to the citi- 
 zen or to the State. 
 
 Although the aborigines of a country may not, under the 
 constitutional law of the State, be considered citizens,' they 
 
 1 While the above was being ■written, the world was startled by the 
 expulsion from France of the Orleans and Bonaparte princes, who are in 
 the line of inheritance of the lost crown. These princes were not charged 
 with any offense against the existing government of France, or against 
 France. They were monarchists, and, it is true, they refused to abjure 
 their claims to the throne of France. But, beyond the formation of 
 marital alliances with the reigning families of Europe, they were not 
 charged with any actions hostile or menacing to the present government. 
 The ineradicable antagonism between monarchy and republicanism may 
 possibly furnish justification for these expulsions ; but one who has thor- 
 oughly assimilated the doctrine of personal liberty can hardly escape the 
 conclusion that they were at least questionable exercises of police power. 
 
 2 This is the rule of law in this country in respect to the legal status 
 of the Indian. As long as he continues his connection with his tribe* 
 and consequently occupies towards the United States a more or less for- 
 eign relation, it would be unwise as well as illogical to invest him with 
 the rights of citizenship. Goodell v. Jackson, 20 Johns. 693, 710; McKay 
 V. Campbell, 2 Sawyer, 118. But it is claimed, with much show of reason 
 for it that as soon as he abandons the tribal relation, and subjects him- 
 
 § 60 
 
144 POLICE REGULATIONS OF EIGHTS OF CITIZENSHIP. 
 
 are likewise not alien residents and cannot be expelled from 
 the country or forcibly removed from place to place, except 
 in violation of individual liberty. But the treatment offered 
 by the United States government to the Indians would in- 
 dicate that they have reached a different conclusion. The 
 forcible removal of the Indians from place to place, in vio- 
 lation of the treaties previously made with them, although 
 there is a pretence that the treaties have become forfeited 
 on account of their wrongful acts, differs in character but 
 little from the expulsion of the Acadians, for whose suffer- 
 ings the world felt a tender sympathy. 
 
 § 61. Ppohibition of immigration. — Since the State 
 owes no legal duty to a foreigner, and the foreigner has no 
 legal right to a residence in a country of which he is not a 
 citizen, a government may restrain and even absolutely 
 prohibit immigration, if that should be the poUcy of the 
 State. The policy of each State will vary with its needs. In 
 this country, the need of immigration has been so great that 
 we offer the greatest possible inducements to immigrants to 
 settle in our midst. So general and unrestricted has immi- 
 gration been in the past, that a large class of our people have 
 denied the right to refuse ingress to any foreigner, unless he 
 is a criminal. As a sentiment, in conformity with the uni- 
 versal brotherhood of man, this position may be justified; 
 but, as a living legal principle, it cannot be sustained. The 
 government of a country must protect its own people at all 
 hazards. Races are too dissimilar to bring into harmoni- 
 ous relations with each other under one government, and 
 the presence in the same country of antagonistic races al- 
 ways engenders social and economical disturbances. If 
 they are already citizens of the same country, as, for ex- 
 ample, the negroes and the whites of the Southern States, 
 
 self to the jurisdiction of our government, he becomes as much a citizen 
 of the United States as any other native. See Story on Constitution, § 
 1988. 
 
 § 61 
 
PROHIBITION OF IMMIGRATION. 145 
 
 there is no help for the evil but a gradual solution of the 
 problem by self-adaptation to each other, or a voluntary 
 •exodus of the weaker race. But when an altogether dis- 
 similar race seeks admission to the country, not being citi- 
 zens, the State may properly refuse them the privilege of 
 immigration. And this i^ the course adopted by the 
 American government towards the Chinese who threaten 
 to invade and take complete possession of the Pacific coast. 
 After making due allowance for the exaggerations of the 
 «vil, there can be no doubt that the racial problem, involved 
 in the Chinese immigration, was sufficiently serious to jus- 
 tify its prohibition. The economical problem, arismg from 
 a radical difference in the manners and mode of life of the 
 •Chinese, not to consider the charges of their moral deprav- 
 ity, threatened to disturb the industrial and social condi- 
 tions of those States, to the great injury of the native 
 population. It was even feared that the white population, 
 not being able to subsist on the diet of the Chinese, and 
 consequently being unable to work for as low wages, would 
 be forced to leave the country, and as they moved eastward, 
 the Chinese would take their place, until finally the whole 
 •country would swarm with the almond-eyed Asiatic. Self- 
 preservation is the first law of nature, with States and 
 societies, as with individuals. It can not be doubted that 
 the act of Congress, which prohibited ail future Chinese 
 immigration, was within the constitutional powers of the 
 United States. 
 
 The United States government have also instituted police 
 regulations for the purpose of preventing pauper immigra- 
 tion, and when an immigrant is without visible means of 
 support, the steamship company which transported him is 
 required to take him back. The purpose of these regula- 
 tions itself suggests the reasons that might be advanced in 
 justification of them, and, therefore, no statement of them 
 is necessary. 
 
 10 § 61 
 
146 POLICE EEGULATIONS OF EIGHTS OF CITIZENSHIP. 
 
 § 62. The public duties of a citizen. — In return for the 
 protection guaranteed to the citizen, he is required to do 
 whatever is reasonable and necessary in support of the gov- 
 ernment and the promotion of the public welfare. It will 
 not be necessary to enter into details, for these duties vary 
 with a change in public exigencies. The object of taxation 
 is treated more particularly in a subsequent section.^ The 
 ordinary public duties of an American citizen, are to assist 
 the peace oflBcers in preserving the public order and serving- 
 legal processes, and to obey all commands of the officers to 
 aid in the suppression of all riots, insurrections and other 
 breaches of the peace; to serve as jurors in the courts of 
 justice, to perform military service, in time of peace as 
 well as in war. It is common for the States to require its 
 male citizens to enroll themselves in the State militia, and 
 receive instruction and to practice in military tactics, and in 
 time of war there can be no doubt of the power of the gov- 
 ernment to compel a citizen to take up arms in defense of 
 the country against the attacks of an enemy, in the same 
 manner as it may require the citizen to aid in suppressing- 
 internal disorders.^ At an earlier day, it was also a com- 
 mon custom to require of the citizens of a town or city the 
 duty of assisting in the quenching of accidental fires and the 
 prevention of conflagrations, and in some of the States 
 
 ^ See post, § 129 et seq. 
 
 2 But defensive warfare must in this connection be distinguished 
 from offensive warfare. The duty of the citizen to repel an attacii upon 
 his country is clear, but it is certainly not considered in the United States 
 a duty of the citizen to aid the government in the prosecution of an offens- 
 ive war, instituted for the purpose of aggrandizement But the question 
 involves the practical difficulty of determining which party in a particular 
 war is on the defensive, and which is the attacking party. It is not nec- 
 essary for the territory of one's country to be invaded, in order that the 
 war may be offensive. Substantial and valuable mternational rights may 
 be trespassed without a blow being struclj or a foot of land invaded, and 
 usually both parties claim to be on the defensive But the difficulty in 
 answering this question of fact does not afEect the accuracy of the theo- 
 retic distinction, although it does take away its practical value. 
 § 62 
 
THE PUBLIC DUTIES OF A CITIZEN. 147 
 
 (notably South Carolina) every male citizen, between 
 certain ages, was at one time required to be an active mem- 
 ber of a militia or fire company. '^ 
 
 It was also at one time the common duty of a citizen to 
 perform, or supply at his expense, labor upon the public 
 roads, in order to keep them in repairs. But this specific 
 duty is each day becoming more uncommon, and the re- 
 pairs are beingmadeby employees of the State or municipal 
 community, whose wages are paid out of the common fund. 
 Indeed, the general tendency at the present day is to relieve 
 the citizen of the duty ofperformingthese public duties by 
 the employment of individuals who are specially charged 
 with them, and perform them as a matter of business. 
 Even in regard to the matter of military service in time of 
 war, this tendency is noticeable. Whenever a draft is made 
 by the government for more men, and one whose name is 
 found in the list desires to avoid the personal performance 
 of this public duty, he is permitted to procure a substitute. 
 The duty of acting as juror is about the only public duty, 
 whose performance is still required to be personal, and evea 
 that is somewhat in danger of substitutive performance. 
 The flimsy and unreasonable excuses, too often given and 
 received for discharge from jury duty, are fast paving the 
 way to the appointment of professional jurymen. 
 
 I But it is now found to be more profitable, in combating the danger 
 of flre in municipal life, to employ men who are specially charged with the 
 performance of this duty. Voluntary, or unprofessional, flre depart- 
 ments are now to be found, in the United States, only in the villages and 
 small towns, 
 
 § 62 
 
CHAPTEE YIL 
 
 POLICE CONTEOL OF MOBALITT AND RELIGION. 
 
 Section 68. Crime and vice distinguished — their relation to Police 
 power. 
 69 Sumptuary laws. 
 
 70. Church and State — Historical synopsis. 
 
 71. Police regulation of religion — Constitutional restrictions. 
 
 72. State control of churches, and congregations. 
 
 73. Religious criticism and blasphemy distinguished. 
 
 74. Permissible limitations upon religious worship. 
 
 76. Religious discrimination in respect to admissibility of 
 
 testimony. 
 76. Sunday laws. 
 
 § 68. Crime and vice distinguished — Their relation 
 to police power. — In legal technics, crime is any act which 
 involves the violation of a public law, and which by theory 
 of law constitutes an offense against the State. Crimes 
 are punished by means of prosecution by State officers. 
 When an act violates some private right, and it is either 
 so infrequent, or so easily controlled by private or 
 individual prosecutions, that the safety of society does 
 not require it to be declared a crime, and the subject- 
 of a criminal prosecution, it is then denominated a trespass, 
 or tort. The same act may be both a tort and a crime, and 
 with the exception of those crimes which involve the 
 violation of strictly public rights, such as treason, malfeas- 
 ances in office, and the like, all crimes are likewise torts. 
 The same act works an injury to the State or to the individ- 
 ual whose right is invaded, and according as we contemplate 
 the injury to the State or to the individual, the act is a 
 crime or a tort. The injury to the State consists in the 
 disturbance of the public peace and order. The injury to 
 the individual consists in the trespass upon some right. 
 § 68 (1*8) 
 
CRIME AND VICE DISTINGUISHED, ETC. 149 
 
 But from either standpoint the act must be considered as 
 an infringement of a right. The act must constitute an 
 injuria, i. e, the violation of a right. 
 
 The distinction thus given between a crime and a tort is 
 purely technical, and proceeds from the habit of the com- 
 mon-law jurist to account for differences in legal rules 
 and regulations by fictitious distinctions, which were in fact 
 untrue. There is no essential difference between a crime 
 and a tort, except in the remedy. No act can be properly 
 called either a crime or a tort, unless it be a violation of 
 some right, and with the exception of those crimes which 
 consist in the violation of some public right, such as treason, 
 crimes are nothing more than violations of private rights, 
 which are made the subject of public prosecution, because 
 individual prosecution is deemed an ineflfectual remedy. 
 The idea of an injury to the State, as the foundation for the 
 criminal prosecution is a pure fiction, indulged in by the 
 jurists in order to conform to the iron cast maxim, that no 
 one but the party injured can maintain an action against the 
 wrong-doer. A crime, then, is a trespass upon some right, 
 public or private, and the trespass is sought to be redressed 
 or prosecuted whether the remedy be a criminal prosecution 
 or a private suit. 
 
 A vice, on the other hand, consists in an inordinate, and 
 hence immoral, gratification of one's passions and desires. 
 The primary damage is to one's self. When we contem- 
 plate the nature of a vice, we are not conscious of a trespass 
 upon the rights of others. If the vice gives rise to any 
 secondary or consequential damage to others we are only able 
 to ascertain the effect after a more or less serious delibera- 
 tion. An intimate acquaintance with sociology reveals the 
 universal interdependence of individuals in the social state ; 
 no man Uveth unto himself, and no man can be addicted to 
 vices, even of the most trivial character, without doing 
 damage to the material interests of society, and affecting 
 each individual of the community to a greater or less degree. 
 
 § 68 
 
150 POLICK CONTKOL OF MORALITY AND EEIilGION. 
 
 But the evils to society, flowing from vices, are indirect 
 and remote and do not involve trespasses upon rights. The 
 indolent and idle are actual burdens upon society, if they 
 are without means of support, and in any event society 
 suffers from them because they do not, as producers, con- 
 tribute their share to the vrorld's wealth. We may very 
 well conceive of idleness becoming so common as to 
 endanger the public welfare. But these people are not 
 guilty of the crime of indolence ; we can only charge them 
 with the vice of idleness. 
 
 Now, in determining the scope of police power, we con- 
 cluded that it was confined to the imposition of burdens and 
 restrictions upon the rights of individuals, in order to pre- 
 vent injury to others ; that it consisted in the application of 
 measures for the enforcement of the legal maxim, sic utere 
 tuo, ut alienum non Icedas. The object of police power 
 is the prevention of crime, the protection of rights against 
 the assaults of others. The police power of the government 
 cunnot be brought into operation for the purpose of exact- 
 ing obedience to the rules of morality, aud banishing vice 
 and sin from the world. The moral laws can exact obedi- 
 ence only inforo conscientice. The municipal law has only 
 to do with trespasses. It cannot be called into play in 
 order to save one from the evil consequences of his own. 
 vices, for the violation of a right by the action of another 
 must exist or be threatened, in order to justify the interfer- 
 ence of law. It is true that vice always carries in its train 
 more or less damage to others, but it is an indirect and re- 
 mote consequence ; it is more incidental than consequential. 
 At least it is so remote that very many other causes co-oper- 
 ate to produce the result, and it is difficult, if not impossi- 
 ble, to ascertain which is the controlling and real cause.^ 
 
 ' Thus the iutemperance of a man may result in the suffering of his 
 
 ■wife from want, because of his consequent inability to earn the requisite 
 
 means of support. But she may have been equally responsible for her 
 
 own suffering on account of her recklessness in marrying him, or she may 
 
 § 68 
 
CRIME ANB VICE DISTINGUISHED, ETC. 151 
 
 Because of this uncertainty, and practical inability to 
 determine responsibility, it has long been established as the 
 invariable nile of measuring the damages to be recovered 
 in an action for the violation of aright, that only the proxi- 
 mate and direct consequences are to be considered. In 
 jure noH remota causa, sed proxima spectatur. If this is a 
 necessary limitation upon the recovery of damages where a 
 clearly established legal right is trespassed upon, there surely 
 is greater reason for its application to a case where there 
 is no invasion of a right, in a case of damnum absque injuria. 
 It is apparently conceded by all, that vice cannot be pun- 
 ished unless damage to others can be shown as accruing or 
 threatening. It cannot be made a legal wrong for one to 
 become intoxicated in the privacy of his room, when the 
 limitation upon his means did not make drunkenness an ex- 
 travagance. If he has no one dependent upon him, and 
 does not offend the sensibility of the public, by displaying 
 bis intoxication in the public highways, he has committed 
 no wrong, i.e., he has violated no right, and hence he can- 
 not be punished. When, therefore, the damage to others, 
 Imputed as the cause to an act in itself constituting no tres- 
 pass, is made the foundation of a public regulation or pro- 
 hibition of that act, it must be clearly shown that the act is 
 the real and predominant cause of the damage. The inter, 
 vention of so many co-operating causes in all cases of 
 remote damage makes this a practical impossibility. Cer- 
 tainly the act itself cannot be made unlawful, because in 
 certain cases a remote damage is suffered by others on 
 account of it. 
 
 It may be urged that this rule for the measurement of 
 damages may be changed, and the damages imputed to the 
 remote cause, without violating any constitutional limitation , 
 
 be extravagant and wasteful ; or she may by her own conduct have driven 
 him into intemperance, and many other facts may be introduced to render 
 it very doubtful to which of these moral delinquencies her suffering 
 might be traced as the real moving cause. 
 
 § 68 
 
152 POLICE CONTROL OF MOKALITT AND RELIGION. 
 
 and such has been the ruling of the New York Court of 
 Appeals,^ 
 
 If this rule rested purely upon the will of the governing- 
 power, if it was itself a police regulation, instituted for the 
 purpose of preventing excessive and costly legislation, its. 
 abrogation would be possible. But it has its foundation in 
 fact. It is deduced from the accumulated experience of ages 
 that the proximate cause is always the predominant in effect- 
 ing the result, it is a law of nature, immutable and unvarying.*^ 
 The abrogation of this rule violates the constitutional limita- 
 tion " no man shall be deprived of his life, liberty or prop- 
 erty, except by due process of law," when in pursuance 
 thereof one is imprisoned or fined for a damage which he 
 did not in fact produce. The inalienable right to "liberty 
 
 1 Bertholf v. O'RIelly, 74 N. Y. 309, 509 (30 Am. Eep. 323). In this 
 case it was held that the legislature has power to create a cause of action 
 for damages, in favor of one who was injured in person or property by 
 the act of an intoxicated person, against the owner of real properly, whose 
 only connection with the injury Is that he leased premises, where liquor 
 causing the intoxication was sold or given away, with the knowledge that 
 the intoxicating liquors were to be sold thereon. "The act of 1873 1s 
 not invalid because it creates a right of action and Imposes a liability not 
 known to the common law. There is no such limit to legislative power. 
 The legislature may alter or repeal the common law. It may create new 
 ofEenses, enlarge the scope of civil remedies, and fasten the responsibility 
 for injuries upon persons against whom the common law gives no remedy_ 
 We do not mean that the legislature may impose upon one man liability 
 for an Injury suffered by another, with which he has no connection. But 
 it may change the rule of the common law, which looks only to the proxi. 
 mate cause of the mischief, in attaching legal responsibility, and allow a 
 recovery to be had against those whose acts contributed, though re motely, 
 to produce it. This is what the legislature had done in the act of 1 873. 
 That there is or may be a relation in the nature of cause and effect, 
 between the act of selling or giving away intoxicating liquors, and the 
 injuries for which a remedy is given, is apparent, and upon this relation 
 the legislature has proceeded in enacting the law in question. It is an 
 extension by the legislature, of the principles expressed in the maxim 
 sic utere tuo, ut alienum non Icedas to cases to which it has not before 
 been applied, and the propriety of such an application is a legislative and 
 not a judicial question. 
 
 2 See post, § 129. 
 
 § 68 
 
SUMPTUARY LAWS. 153 
 
 and the pursuit of happiness " is violated, when he is pro- 
 hibited from doing what does not involve a trespass upon 
 others. 
 
 In order, therefore, that vices may be subjected to legal 
 control and regulation, it will be necessary to show that it 
 constitutes a trespass upon some one's rights, or proxi- 
 mately causes damage to others, and that is held to be a 
 practical impossibility. Under the established rules of con- 
 stitutional construction, it is quite probable that proximate 
 damage without trespass upon rights may be made action- 
 able, and the vice which causes it to be prohibited, without 
 infringing the constitution ; but the further practical diffi- 
 culty is to be met and avoided that a trespass upon one's 
 rights, or the threatening danger of such a trespass, is nec- 
 essary to procure from the people that amount of enthusi- 
 astic support, without which a law becomes a dead letter. 
 It is the universal experience that laws can not be enforced 
 which impose penalties upon acts which do not constitute 
 infringements upon the rights of others. But this is not a 
 constitutional objection, and does not affect the binding 
 power of the law, if a sufficient moral force can be brought 
 together to secure its enforcement. This is a question of 
 expediency, which can only be addressed to the discretion 
 of the legislature. 
 
 § 69. Sumptuary laws. — Of the same general char- 
 acter as laws for the correction of vices, are the sumptuary 
 laws of a past civilization. Extravagance in expenditures, 
 the control of which was the professed design of these laws, 
 was proclaimed to be a great evil, threatening the very found- 
 ations of the State ; but it is worthy of notice that in those 
 countries and in the age in which they were more common, 
 despotism was rank, and the common people were subjected 
 to the control of these sumptuary laws, in order that by re- 
 ducing their consumption they may increase the sum of en- 
 joyment of the privileged classes. The diminution of their 
 
 § 69 
 
154 POLICE CONTROL OF MORAilTY AND EELIGION. 
 
 means of luxuriant living was really the danger against which 
 the sumptuary laws were directed. In proportion to the 
 growth of popular yearning for personal liberty, these laws 
 have become more and more unbearable, until now it is the 
 universal American sentiment, that these laws, at least in 
 their grosser forms, and hence on principle, are violations 
 of the inalienable right to "liberty and the pursuit of hap- 
 pmess," and involve a deprivation of liberty and prop- 
 erty — through a limitation upon the means and ways of 
 enjoyment — without due process of law. Judge Cooley, 
 says: " The ideas which suggested such laws are now ex- 
 ploded utterly, aud no one would seriously attempt to just- 
 ify them in the present age. The right of every man to do 
 what he will with his own, not interfering with the recip- 
 rocal right of others, is accepted among the fundamentals 
 of our law." ^ It is true that a public and general extrava- 
 gance in the ways of living would lead to national decay. 
 Nations have often fallen into decay from the corruption 
 caused by the individual indulgence of luxurious tastes. 
 But this damage to others is very remote, if it can be 
 properly called consequential, and in any event of its be- 
 coming a widespread evil, the nation would be so honey- 
 combed with corruption that the means of redemption, or 
 regeneration, except from without, would not be at hand. 
 The enforcement of the laws could not be secured. The 
 inability to secure a reasonable enforcement of a law is 
 always a strong indication of its unconstitutionality in a 
 free State, 
 
 Public sentiment in the United States is too strong in its 
 opposition to all laws which exert an irksome restraint upon 
 individual liberty, in order that sumptuary laws in their 
 grosser forms may be at all possible. But as far as the 
 liquor prohibition laws have for their object the prevention 
 of the consumption of intoxicating liquors, they are sumpt- 
 
 1 Cooley Const. Lim. *385. 
 § 69 
 
SUMPTUARY LAWS. 155 
 
 -ary laws, and are constitutionally objectionable on that 
 ground, if the measures are not confined to the prohibition 
 -of the sale of liquors. This is the usual limitation upon 
 the scope of the prohibition laws. But it is said that in 
 the States of Wisconsin and Nevada laws have been en- 
 acted by the Legislature, prohibiting the act of " treating " 
 to intoxicating drinks, making it a misdemeanor, and pun- 
 ishable by fine or imprisonment. There is probably very 
 little doubt that a large proportion of the intemperance 
 ^mong the youth of this country may be traced to this pe- 
 culiarly American custo.m or habit of "treating." But 
 inasmuch as the persons, who are directly injured — and 
 this is the only consequential injury which can be made the 
 suliject of legislation — are all willing participants, except 
 in the very extreme cases of beastly intoxication, when one 
 or more of the parties " treated " cannot be considered as 
 rational beings — volenti non Jit injuria — these regula- 
 tions are open to the constitutional objection of a depriva- 
 -tion or restraint of liberty, in a case in which no right has 
 been invaded. The manifest inability to secure, even in the 
 slightest degree, an enforcement of these curious experi- 
 ments in legislation has been their most effective antidote. 
 IBut while, as a general proposition, we may freely use 
 "what ever food or clothing taste or caprice may suggest, 
 without the exercise of any governmental restraint, there are 
 some exceptions to the rule, which will probably be admitted 
 without question. Certainly no one would seriously doubt 
 the constitutionality of the laws, to be found on the statute 
 book of every State, which provide for the punishment of 
 an indecent exposure of the person in the public thorough- 
 fares. Every one can be required to appear in public in 
 •decent attire. It is not definitely settled what is meant by 
 indecent attire, but probably the courts would experience 
 no difficulty in reaching the conclusion that any attire is in- 
 decent, which left exposed parts of the human body which 
 according to the common custom of the country are invari- 
 
 § 69 
 
156 POLICE CONTROL OP MORALITY AND RELIGION. 
 
 ably covered. It is questionable that the courts can go 
 farther in the requirement of decent attire, as, for example, 
 to prohibit appearance in the streets in what are usually 
 worn as undergarments, provided that the body is properly 
 covered to prevent exposure. 
 
 Another phase of police power, in this connection, is the 
 prohibition of the appearance in public of men in women's 
 garb, and vice versa. The use of such dress could serve no 
 useful purpose, and tends to public immorality and the per- 
 petration of frauds. Its prohibition is, therefore, proba- 
 bly constitutional. But it does not follow that a law, which 
 prohibited the use by men of a specific article of women's 
 dress, or to women the use of particular piece of men's 
 clothing, would be constitutional. The prohibition must be 
 confined to those cases, in which immorality or the practice 
 of deception is facilitated, viz., where one sex appears 
 altogether in the usual attire of the other sex. 
 
 § 70. Church and State — Historical synopsis. — 
 
 Religious liberty, in all its completeness, is a plant of 
 American growth. In no other country, and in no pre- 
 ceding age, was there anything more than religious tolera- 
 tion, and even toleration was not a common experience. 
 Everywhere, the State was made the instrument for the , 
 propagation of the doctrines of some one religious sect, and 
 all others were either directly prohibited, or so greatly dis- 
 criminated against in the bestowal of State patronage, as to 
 amount, in effect, to an actual prohibition. On the other 
 hand, the State would secure the support of the church in 
 the enforcement of its mandates. Before the American 
 era, the gradual development of the human soul, under the 
 workings of the forces of civilization, had long since done 
 away with physical torture. Heretics were not burned at 
 the stake, or put to the rack, but the same cruel intolerance 
 exacted the creation of social and political distinctions, 
 which were equally effective in oppressing those who dif- 
 § 70 
 
CHURCH AND STATE HISTORICAL SYNOPSIS, 157 
 
 fered in their religious faith with the majority. Protestant 
 England and Germany oppressed the Catholics, and Catho- 
 lie France and Italy oppressed the Protestants, while the 
 infidel received mercy and toleration at the hands of neither. 
 Most of the immigrants to the American colonies were refu- 
 gees from religious oppression, driven to the wilds of Am- 
 erica, in order to worship the God of the Universe according 
 to the dictates of their conscience. The Puritans of New 
 England, the Quakers of Pennsylvania, the English Catholics 
 of Maryland, and the Huguenots of the Carolinas, sought on 
 this continent that religious liberty which was not to be found 
 in Europe. I should not say " religious liberty," for that is 
 not what they sought. They desired only to be freed from 
 the restraint of an intolerant and opposing majority. They 
 desired only to settle in a country where the adherents of 
 their peculiar creed could control the affairs of State. Not- 
 withstanding their sad experience in the old world, when 
 they settled in America, they became as intolerant of dis- 
 senters from the faith of the majority, as their enemies had 
 been towards them. Church and State were not yet sepa- 
 rate. Each colony was dominated by some sect, and the 
 others fared badly. The performance of religious duties 
 was enforced by the institution of statutory penalties. 
 The clergyman, particularly of New England, was not only 
 the. shepherd of the soul, but he was likewise, m some 
 sense, a magistrate. " The heedless one who absented 
 himself from the preaching on a Sabbath was hunted up 
 by the tithing man, was admonished severely, and, if he 
 still persisted in his evil ways, was fined, exposed in the 
 stocks or imprisoned in the cage. To sit patiently on the 
 rough board seats, while the preacher turned the hour-glass 
 for the third time, and with his voice husky from shouting, 
 and the sweat pouring in streams down his face, went on for 
 an hour more, was a delectable privilege. In such a com- 
 munity the authority of the reverend man was almost 
 supreme. To speak disrespectfully concerning him, to jeer 
 
 § 70 
 
158 POLICE CONTROL OF MOKALITY ATSJ) RELIGION. 
 
 at his sermons, or to laugh at his odd ways, was sure to- 
 bring down on the offender a heavy fine." ^ The religious 
 liberty of the colonial period meant nothing more than 
 freedom from religious restraint for the majority, while the 
 minority suffered as much persecution as the immigrants 
 had themselves suffered in Europe, a striking illustration of 
 the accuracy of the doctrine that there are no worse 
 oppressors than the oppressed when they have in turn 
 become the ruling class. It is no exaggerated view to take 
 of the probabilities, that the grand establishment of reli- 
 gious liberty of to-day would not have been attained, at 
 least in the present age, if the rapid increase in the num- 
 ber of religious sects, each one of which was predominant 
 iu one or more of the colonies, had not militated against 
 the successful union of the colonies into one common coun- 
 try. " In some of the States, Episcopalians constituted the 
 predominant sect ; in others, Presbyterians; in others, Con- 
 gregationalists ; in others, Quakers, and in others, again, 
 there was a close numerical rivalry among contending sects. 
 It was impossible that there should not arise perpetual 
 strife and perpetual jealousy on the subject of ecclesiastical 
 ascendancy, if the national government were left free to cre- 
 ate a religious establishment. The only security was in 
 extirpating the power." ^ Congress was therefore denied 
 by the first amendment to the Constitution of the United 
 States the power to make any law respecting an establish- 
 ment of religion or prohibiting the free exercise thereof. 
 " Thus, the whole power over the subject of religion is left 
 exclusively to the State governments, to be acted upon 
 according to their own sense of justice and the State con- 
 stitutions ; and the Catholic and Protestant, the Calvinist 
 and the Armenian, the Jew and the infidel, may sit down at 
 
 1 McMaster's Hist, of People of V. S., vol. I., p. 31. 
 " Story on the Constitution, § 1879. 
 § 70 
 
POLICE REGULATION OF RELIGION. 159 
 
 the common table of the national councils, without any 
 inquisition into their faith or mode of worship." ^ 
 
 Proceeding from this limitation upon the power of the 
 national government to regulate religion, there was ulti- 
 mately incorporated into the constitutions of almost all of 
 the States a prohibition of all State interference in matters 
 of religion, thus laying the foundation for that development 
 of a complete and universal religious liberty, a liberty en- 
 joyed alike by all, whatever may be their faith or creed. 
 Thus and then, for the first time in the history of the world, 
 was there a complete divorce of church and State. But 
 even with the enactment of the constitutional provisions, 
 religious liberty was not assured to all. Legal discrimina- 
 tions, on account of religious opinions, exist in some of the 
 States tothe present day, and public opinion in most Ameri- 
 can communities is still in a high degree intolerant.^ The 
 complete abrogation of all State interference in matters of 
 religion is of slow growth, and can only be attained with 
 the growth of public opinion. 
 
 § 71. Police regulation of religion — Constitutional 
 restrictions. — If there were no provisions in the American 
 constitutions specially applicable to the matter of police 
 regulation of religion, the considerations which would deny 
 to the State the control and prevention of vice would also 
 constitute insuperable objections to State interference in 
 matters of religion. But the rivalry and contention of the 
 religious sects not only demanded constitutional prohibition 
 of the interference of the national government, but gave 
 rise to the incorporation of like prohibitions in the various 
 State constitutions. The exact phraseology varies with 
 each constitution, but the practical effect is believed in the 
 main to be the same in all of them. These provisions not 
 only prohibit all church establishments, but also guarantee 
 
 1 story on Constitution, § 1879. 
 
 2 See post, ^75. 
 
 § 71 
 
160 POLICE CONTROL OF MOEAHTY AND RELIGION. 
 
 to each individual the right to worship God in his own way, 
 and to give free expression to his religious views. The 
 prohibition of a religious establishment not only prevents 
 the establishment of a distinctively State church, but like- 
 wise prohibits all preferential treatment of the sects in the 
 bestowal of State patronage or aid. A law is unconstitu- 
 tional which gives to one or more religious sects a privil- 
 ege that is not enjoyed equally by all.^ " Whatever 
 establishes a distinction against one class or sect is, to the 
 extent to which the distinction operates unfavorably, a 
 persecution ; and if based on religious grounds, a religious 
 persecution. The extent of the discrimination is not ma- 
 terial to the principle, it is enough that it creates an in- 
 equality of right or privilege." ^ 
 
 But while religious establishments and unequal privileges 
 are prohibited, and the State in its dealings with the individ- 
 ual is to know no orthodoxy or heterodoxy, no Christianity 
 or infidelity, no Judaism or Mohammedanism, the law can- 
 not but recognize the fact that Christianity is in the main the 
 religion of this country. While equality, in respect to the 
 bestowal of privileges, is to be strictly observed, the recogni- 
 tion of the prevailing religion, in order to foster and encour- 
 age the habit of worship as a State policy, is permissible, 
 provided there is no unnecessary discrimination in favor of 
 any particular sect. It is said that onlj' unnecessary dis- 
 crimination is prohibited. By that is meant that, in the en- 
 couragement of religious worship, there is in some cases an 
 unavoidable recognition of the overwhelming prevalence of 
 the Christian religion in this country. The masses of this 
 country, if they profess any religious creed at all, are Chris- 
 tians. Thus, for example, it has been long the custom to 
 appoint chaplains to the army and navy of the United 
 States, and the sessions of Congress and of the State legisla- 
 
 1 Shreveport v. Levy, 27 La. Ann. 671. 
 
 2 Cooley Const. Lim. *469. 
 
 § 71 
 
POLICE EEGULATIOK OF EELIGION. 161 
 
 tures are usually opened with religious exercises. These 
 chaplains are naturally Christian clergymen. If they were 
 the teachers of any other religion, their public ministrations 
 would fail in the object of their appointment, viz. : the en- 
 couragement of religious worship, because such exercises 
 would offend the religious sensibilities and arouse the oppo- 
 sition of the masses, instead of exciting in them a greater 
 ■desire for spiritual enlightenment. But these regulations 
 can go no further than the institution and maintenance of 
 devotional exercises. If attendance upon these exercises is 
 made compulsory upon the army and navy, and upon the 
 members of the legislative bodies, there would be a clear 
 violation of the religious liberty of the person who was com- 
 pelled to attend against his will. The Jew and the infidel 
 ■cannot be forced to attend them.^ 
 
 This question has of late years been much discussed in its 
 "bearings upon the conduct of religious exercises in the pub- 
 lic schools of this country. It has been held that the 
 school authorities may compel the pupils to read the Bible 
 in the schools, even against the objection and protest of the 
 parents.^ But it would appear that this view is erroneous. 
 It is true that the regulation does not constitute su(!h a gross 
 violation of the religious liberty of the child, as it would, if 
 attendance upon the school was compulsory. It is true that 
 the Hebrew or infidel need not attend the public schools, 
 if he objects to the religious exercises conducted there. But 
 such a regulation would amount to the bestowal of unequal 
 privileges, which is as much prohibited by our constitutional 
 law as direct religious proscription. In accordance with the 
 permissible recognition of Christianity as the prevailing 
 religion of this country, it may be permitted of the school 
 authorities to provide for devotional exercises according to 
 the Christian faith, but neither teacher nor pupil can lawfully 
 
 1 Cooley Const. Lim. *4;71. 
 
 ' See Donahue v. Richards, 38 Me. 376; Spilleri). Woburn, 12 Allen, 
 127. 
 
 11 § 71 
 
162 POLICE CONTROL OI MORALITY AND RELIGION. 
 
 be compelled to attend.^ All education must be built upoa 
 the corner-stone of morality, in order that any good may 
 come out of it to the individual or to society ; and an educa- 
 tional course, which did not incorporate the teaching of 
 moral principles, would at least be profitless, if not abso- 
 
 1 Speller v. Wobum, 12 AUeu, 127. In Iowa by statute it was provided 
 that the Bible shall not be excluded from the public schools but that no- 
 pupil shall be required to read it contrary to the wishes of his parent or 
 guardian. In declaring the statute to be constitutional, the court says: 
 " The plaintiff' s position Is that by the use of the school-house as a place for 
 reading the Bible, repeating the Lord's prayer and singing religious songs> 
 it is made a place of worship ; and so his children are compelled to attend 
 a place of worship, and he, as a taxpayer, is compelled to pay taxes for 
 building and repairing a place of worship. We can conceive that exer- 
 cises like those described might be adopted with other views than those 
 of worship, and possibly they are in the case at bar; but it is hardly to 
 be presumed that this is wholly so. Por the purposes of the opinion it 
 may be conceded that the teachers do not Intend wholly to exclude the 
 idea of worship. It would follow that the school-house is, in some sense, 
 for the time being, made a place of worship. But it seems to us that if 
 we should hold that it is made a place of worship within the meaning of 
 of the constitution, we should put a very strained construction upon it. 
 
 " The object of the provision, we think, is not to prevent the casual use of 
 a public building as a place for offering prayer, or doing other acts of reli' 
 gious worship, but to prevent the enactment of a law, whereby any person 
 can be compelled to pay taxes for building or repairing any place, designed 
 to be used distinctively as a place of worship. The object, we think, was 
 to prevent an improper burden. It is, perhaps, not to be denied that the 
 principle, carried out to its extreme logical results, might be sufficient to 
 sustain the appellant's position, yet we cannot think that the people of 
 Iowa, in adopting the constitution, had such an extreme view in mind- 
 The burden of taxation by reason of the casual use of a public building 
 for worship, or even such stated use as that shown in the case at bar, is 
 not appreciably greater. We do not think indeed that the plaintiff 's real 
 objection grows out of the matter of real taxation. We infer from his 
 argument that his real objection is that the' religious exercises are made a 
 part of the educational system into which his children must be drawn, or 
 made to appear singular, and perhaps be subjected to some inconven- 
 ience. But so long as the plaintiff 's children are not required to be in 
 attendance at the exercises, we cannot regard the objection as one of 
 great weight. Besides, If we regard it as of greater weight than we do, 
 we should have to say that we do not find anything in the constitution or 
 law upon which the plaintiff can properly ground his application for re- 
 lief." Moore v. Monroe, 64 Iowa, 367 (62 Am. Rep. 444). 
 § 71 
 
STATE CONTEOL OF CHURCHES AND CONGREGATIONS. 163 
 
 lately dangerous. The development of the mind without 
 the elevation of the soul, only sharpens the individual's wits 
 and makes him more dangerous to the commonwealth. The 
 teaching of morality is therefore not in any sense objection- 
 able ; on the contrary, it should be made the chief aim of 
 the public school system. But religion should be carefully 
 distinguished from morality. The Jew, the Christian, the 
 Chinese, the Mohammedans, the infidels and atheists, ail 
 may alike be taught the common principles of morality, 
 without violating their religious liberty. The law exacts 
 an obedience to the more vital and fundamental principles 
 of morality, and the State can as well provide for moral in- 
 struction in its public schools. It is its duty to do so. But 
 moral instruction does not necessitate the use of the Bible, 
 or any other recognition of Christianity, and such recogni- 
 tion is unconstitutional, when forced upon an unwilling 
 pupil. 
 
 § 72. State control of churclies and congregations. — 
 
 In the English law of corporations, one of the classifications 
 is into ecclesiastical and lay. The religious incorporations 
 were called ecclesiastical, and because of the legal recogni- 
 tion and establishment of church and religion, they are 
 possessed of peculiar characteristics, which called for this 
 special classification. But in this country there is no need 
 for it. In conformity with the general encouragement of 
 religious worship, voluntary religious societies are at their 
 request incorporated under the general laws, in order that 
 they may hold and transmit property, and do other neces- 
 sary acts as a corporate body, which without incorporation 
 would be the joint acts of the individual members, with the 
 general liability of partners. All religious societies are 
 alike entitled to incorporation, and whatever privileges are 
 granted to one society or sect, must be granted to all, in 
 order not to offend the constitutional prohibition. 
 
 Upon the incorporation of a religious society, two differ- 
 
 § 72 
 
164 POLICE CONTROL OF MORALITY AND RELIGION. 
 
 ent bodies, co-existing and composed of the same members, 
 are to be recognized. The religious organization, together 
 with all the spiritual affairs of the society, has received no 
 legal recognition and has, in fact, no legal status, except as 
 it might affect the temporal affairs and civil rights of the 
 members of the corporation, wherewith it is so intimately 
 bound up that it is difficult at times to trace the line of de- 
 marcation. There has been no incorporation of the spiritual 
 organization. Its members have only become incorporators 
 of the religious corporation. While the corporation and the 
 spiritual organization are usually composed of the same mem- 
 bers, it is not at all impossible for what appears, to clericals 
 and laymen alike, as a remarkable anomaly to happen, viz. .- 
 that some of the members of the corporation are not mem- 
 bers of the spiritual corporation, and some members of the 
 latter do not belong to the temporal society. Of course, 
 this is only possible when the organic law of the corporation 
 does not require membership in the spiritual organiza- 
 tion, as a condition of membership in the legal incorpora- 
 tion. The law cannot undertake to regulate the religious 
 affairs of the society, or overrule the decisions and actions 
 of the properly constituted authorities of the church in 
 respect to such religious affairs. The creed, articles of 
 faith, church discipline, and ecclesiastical relations generally, 
 are beyond State regulation or supervision. " Over the 
 church, as such, the legal or temporal tribunals of the State 
 do not profess to have any jurisdiction whatever, except so 
 far as is necessary to protect the civil rights of others, and 
 to preserve the public peace. All questions relating to the 
 faith and practice of the church and its members belong to 
 the church judicatories to which they have voluntarily sub- 
 jected themselves." ^ But whenever the civil and property 
 
 1 Walworth, Chancellor, in Baptist Church v. Wetherell, 3 Paige, 296 
 
 (24 Am. Dec. 223) . "In this country the full and free right to entertain 
 
 any religious belief, to practice any religious principle, and to teach any 
 
 religious doctrine which does not violate the laws of morality and prop- 
 
 § 72 
 
STATE CONTROL OF CHURCHES AND CONGREGATIONS. 165 
 
 rights of the individual are invaded, the State is justified 
 and expected to exercise the same control and supervision 
 as it would in the case of any other incorporation.^ The 
 legal corporations may be established simply upon the basis 
 of a community of property, without introducing any relig- 
 ious qualification as a member,^ and in that case there is 
 no opportunity whatsoever for State interference in the 
 religious affairs of the organization . But this is not usually 
 the case. Membership in the corporation assumes ordinar- 
 ily a more or less religious aspect, and depends upon the 
 performance of certain religious conditions. The civil 
 rights of such a member may, therefore, be materially 
 affected by the decisions of the ecclesiastical authorities, and 
 
 erty, and which does not infringe personal rights, is conceded to all. The 
 law knows no heresy, and is committed to the support of no dogma, the 
 establishment of no sect. The right to organize voluntary religious asso- 
 ciations, to assist in the expression and dissemination of any religious 
 doctrine, and to create tribunals for the decision of controverted ques- 
 tions of faith within the association, and for the ecclesiastical govern- 
 ment of all the individual members, congregations, and officers within the 
 general associations, is unquestioned. All who unite themselves to such 
 a body do so with an implied consent to this government, and are bound 
 to submit to it. But it would be a vain consent and would lead to the 
 total subversion of such religious bodies, if any one aggrieved by one of 
 their decisions could appeal to the secular courts and have them reversed. 
 It is the essence of these religious unions, and of their right to establish 
 tribunals for the decision of questions arising among themselves, that 
 those decisions should be binding in all cases of ecclesiastical cognizance, 
 subject only to such appeals as the organism Itself provides for." Wat- 
 son V. Jones. 13 Wall. 679. See, also, Sohier o. Trinity Church, 109 Mass. 
 1; Lawyer?;. Cipperly, 7 Paige, 281; Robertson v. Bullions, 11 N. Y. 243; 
 Heliport V. Tooker, 21 N. Y. 267 (29 Barb. 256) ; O'Hara v. Stack, 90 Pa. 
 St. 4:77; Keyser v. Stansifer, 6 Ohio, 363; Shannon v. Frost, 3 B. Mon. 
 263; Lucas v. Case, 9 Bush, 297; Ferraria v. Vasconcellos, 31 111. 25; 
 Calkins v. Chaney, 92 111. 463; German Congregation v. Pressler, 17 La. 
 Ann. 127. 
 
 ' Watson V. Jones, 13 Wall. 679; Smith v. Nelson, 18 Vt. 511; Hale v. 
 Everett, 53 N. H. 9; Ferraria v. Vasconcellos, 31 111. 25; Watson v. 
 Avery, 2 Bush, 332; Happy v. Morton, 93 111. 398. 
 
 « Waite V. Merrill, 4 Me. 102 (16 Am. Dec. 238) ; Scribner v. Eapp, 6 
 Watts. 311 (30Am. Dec.327). 
 
 § 72 
 
166 POLICE CONTROL OP MORALITY AND RELIGION. 
 
 to that extent and for the protection of such civil rights are 
 these decisions on religious matters subject to review. The 
 religious status cannot be determined in any event by a civil 
 court, except as it bears upon and interferes with the tem- 
 poral or civil rights of the individual. And even then the 
 courts are not permitted to review and determine the essen- 
 tial accuracy of the decision. The court must confine its 
 investigation to ascertaining, whether the proper religious 
 authorities had had cognizance of the case, and had complied 
 with their organic law in the procedure and how far the 
 decision affects the civil rights under the by-laws and char- 
 ter of the corporation.^ 
 
 § 73. Religious criticism and blasphemy dlstinguish- 
 
 ' "When a civil right depends upon an ecclesiastical matter, it is the 
 civil court and not the ecclesiastical which is to decide. But the civil 
 tribunal tries the civil right and no more, taking the ecclesiastical decis- 
 ions out of which the civil right arises as it finds them." Harmon v. 
 Dreher, 2 Speer's Eq. 87. 
 
 " The entire separation of church and State is not the least of the evi- 
 dences of the wisdom and forethought of those who made our nation's 
 constitution. It was more than a happy thought, it was an inspiration. 
 But although the State has renounced authority to control the internal 
 management of any church, and refuses to prescribe any form of church 
 government, it is nevertheless true that the law recognizes the existence 
 of churches, and protects and assures their right to exist, and to possess 
 and enjoy their powers and privileges. Of course, wherever rights of 
 property are invaded, the law must interpose equally in those Instances 
 where the dispute is as to church property as in those where it Is not, 
 and it also takes note of, but does not itself enforce, the discipline of the 
 church, and the maintenance of church order and internal regulation." 
 State V. Hebrew Congregation, 30 La. Ann. 205 (33 Am. Eep. 217). See, 
 also, Watsons. Jones, 13 Wall. 679; Grosvenor d. United Society, 118 
 Mass. 78; Dieffendorf ». Rif. Col. Church, 20 Johns. 12; Baptist Church 
 V. Wetherell, 3 Paige, 301 (24 Am. Dec. 223) ; People v. German Church, 
 63 N. Y. 103 ; Hendirckson v. Decon, 1 N. Y. Eq. 577 ; Den v. Bolton, 12 
 N. J. 206; McGinnis v. Watson, 41 Pa. St. 9; Wilson ». Johns Island 
 Church, 2 Rich Eq. 192; Lucas v. Case, 9 Bush, 297; Chase c.Chaney, 58 
 111. 508; State v. Farris, 45 Mo. 183. See Fitzgerald o. Robinson, 112 
 Mass. 371, in which it was held that an excommunication would not be 
 permitted to affect property and other civil rights. 
 § 73 
 
EELIGIOUS CKITICISM AND BLASPHEMY DISTINGUISHED. 167 
 
 «d. — The recognition of Christianity by the State is not, 
 and need not be, confined to the provision for Christian 
 <Jevotional exercises in the various governmental depart- 
 ments and State institutions, as has been explained and 
 claimed in a preceding section.^ The fostering and encour- 
 agement of a worshipful attitude of mind, the development 
 and gratification of the religious instinct, should be of great 
 concern to the State. While morality is distinguishable 
 from religion, the most important principles of morality re- 
 ceive their highest sanction and their greatest efficacy, as a 
 civilizing force, in becoming the requirements of religion. 
 A high morality is inconsistent with a state of chronic irre- 
 ligiousness. Anything, therefore, that is calculated to 
 diminish the people's religious inclinations is detrimental to 
 the public welfare, and may therefore be prohibited. Public 
 contumely and ridicule of a prevalent religion not only 
 ofiend against the sensibilities of the believers, but likewise 
 threaten the public peace and order by diminishing the 
 power of moral precepts. Inasmuch, therefore, as Chris- 
 tianity is essentially the religion of this country, any defam- 
 ation of its founder or of its institutions, as well as all 
 malicious irreverence towards Deity, must and can be prohib- 
 ited. These acts or ofi'enses are generally comprehended 
 under the name of blasphemy. 
 
 Mr. Justice Story, in the Girard will case, said that, 
 *' although Christianity be a part of the common law of the 
 State, yet it is only so in the qualified sense, that its 
 divine origin and truth are admitted, and therefore it is not 
 to be maliciously and openly reviled and blasphemed, 
 against, to the annoyance of believers or the injury of the 
 public."^ The " divine origin and truth " of the Christian 
 religion are not admitted by the common law of this coun- 
 try. The only thing that the law can admit, in respect to 
 
 1 SeeanJe, § 71. 
 
 2 Vidal». Girard's Exrs., 2 How. 127. 
 
 § 73 
 
168 POLICE CONTROL OF MORALITY AND RELIGION. 
 
 Christianity, is its potent influence in carrying on the devel- 
 opment of civilization, and more especially in compelling 
 the recognition and observance of moral obligations. If 
 the laws against blasphemy rested upon the admission by 
 the law of the " divine origin and truth " of the Christian 
 religion, they would fall under the constitutional prohibi- 
 tions, which withdraw religion proper from all legal control. 
 Blasphemy is punishable, because, as already stated, it 
 works an annoyance to the believer and an injury to the 
 public. While religion proper is by the constitutional 
 limitations taken out of the field of legislation, they were 
 " never meant to withdraw religion in general, and with it 
 the best sanctions of moral and social obligation from all 
 consideration and notice of the law. * * * To construe it 
 as breaking down the common-law barriers against licentious, 
 wanton and impious attacks upon Christianity itself, would 
 be an erroneous construction of its (their) meaning." ^ But 
 it is only as a moral power that any religion can receive legal 
 recognition. " The common law adapted itself to the 
 religion of the country just so far as was necessary for the 
 peace and safety of civil institutions ; but it took cognizance 
 of oflTenses against God only when, by their inevitable 
 effects they became offenses against man and his temporal 
 security." ^ The essential element of blasphemy is malici- 
 ous impiety. " In general, blasphemy may be described as- 
 consisting in speaking evil of the Deity with an impious 
 purpose to derogate from the divine majesty, and to alienate 
 the minds of others from the love of and reverence of 
 God. It is purposely using words concerning God, calcu- 
 lated and designed to impair and destroy the reverence, 
 respect and confidence due to Him, as the intelligent Creator, 
 Governor and Judge of the world. It embraces the idea of 
 detraction, when used towards the Supreme Being; a& 
 
 ^ People ». Buggies 8, Johns. 289 (5 Am. Dec. 335). 
 " State V. Chandler, 2 Harr. 553. 
 § 73 
 
KELIGIOUg CRITICISM AND BLASPHEMY DISTINGUISHED. 165) 
 
 * calumny ' usually carries the same idea when applied to 
 an individual. It is a willful and malicious attempt to 
 lessen men's reverence of God by denying His existence, or 
 His attributes as an intelligent Creator, Governor and Judge 
 of men, and to prevent their having confidence in Him as 
 such."i 
 
 The laws against blasphemy, at least in respect to the 
 more special details, have reference solely to Christianity. 
 If their authority rested on the religious character of the 
 offense, the equality of all religion before the law would re- 
 quire that these laws should embrace blasphemy, against 
 whatever religion it may be directed. And while that would 
 be, under our constitutional provisions, both permissible 
 and commendable, since the laws are designed to prevent 
 widespread irreligiousness and disturbance of the public 
 order, there would be no illegal discrimination, if the pro- 
 visions of the law should in the main be confined to blas- 
 phemy against the Christian religion. " Nor are we bound, 
 by any expressions in the constitution, as some have 
 strongly supposed, either not to punish at all, or to punish 
 indiscriminately, the like attacks upon the religion of Ma- 
 homet or the Grand Lama; and for this plain reason, that 
 the case assumes that we are a Christian people, and the mor- 
 ality of the country is deeply ingrafted in Christianity." * 
 
 In order that an utterance or writing may be considered 
 a legal blasphemy, it must be accompanied by malice and a 
 willful purpose to offend the sensibilities of Christians. 
 The malice or evil purpose is the gravamen of the wrong. 
 The very same words, at least the same thoughts, may 
 under other circumstances, and with a different purpose, 
 be lawful, and the free expression of them may be 
 
 1 Shaw, ch. J., in Commonwealtli v. Kneeland, 20 Pick. 206. See also, 
 People V. Euggles, 8 Johns. 289 (5 Am. Dec. 335) ; TJpdegraph v. Com., 
 lis. &E. 394; State ». Chandler, 2 Harr. 553; Andrew w. Bible Society, 
 4Sandf. 156. 
 
 2 Kent Ch. J. in People v. Euggles, 8 Johns 289 (5 Am. Dec. 225). 
 
 § 73 
 
170 POLICE CONTROL OF MOKALITY AND RELIGION. 
 
 guaranteed by the constitutional provisions in respect to 
 religious liberty. Religious liberty is impossible without 
 freedom of expression and profession of one's faith and 
 doctrines. Religious liberty implies the utmost freedom 
 in the promulgation of the creed one professes, and 
 exhortation to non-believers to embrace that faith. The 
 serious and honest discussion of the doctrinal points of the 
 Christian or any other religion is protected from infringe- 
 ment by our constitutional limitations. But no one can 
 claim, under these provisions of the constitution, the right 
 of indulgence in " offensive levity, or scurrilous and oppro- 
 brious language," which serves no good purpose, and, when 
 done in public, is likely to bring about more or less disturb- 
 ance of the public order. Such actions and such language, 
 whether written or spoken, constitute a nuisance, which 
 comes within the jurisdiction of law. It is legal blasphemy. 
 The statute against blasphemy "does not prohibit the 
 fullest inquiry and the freest discussion, for all honest and 
 fair purposes, one of which is, the discovery of truth. 
 It admits the freest inquiry, when the real purpose is 
 the discovery of truth, to whatever result such inquiries 
 may lead. It does not prevent the simple and sincere 
 avowal of a disbelief in the existence and attributes of a 
 supreme intelligent being, upon suitable and proper occa- 
 sions. And many such occasions may exist; as where a 
 man is called a witness, in a court of justice and questioned 
 upon his belief, he is not only permitted, but bound, by 
 every consideration of moral honesty to avow his unbelief, 
 if it exists. He may do it inadvertently in the heat of de- 
 bate, or he may avow it confidentially to a friend, in the 
 hope of gaining new light on the subject, even perhaps 
 whilst he regrets his unbelief; or he may announce his 
 doubts publicly, with the honest purpose of eliciting a more 
 general and thorough inquiry, by public discussion, the true 
 and honest purpose being the discovery and diffusion of 
 § 73 
 
PERMISSIBLE LIMITATIONS UPON RELIGIOUS WORSHIP. 171 
 
 truth. None of these constitute the willful blasphemy pro- 
 hibited by this statute."* 
 
 § 74. Permissible limitations upon religious wor- 
 ship. — While the constitution of the United States pro- 
 hibits all interference with the free exercise of religion 
 according to the dictates of the conscience, and guarantees 
 before the law a substantial equality to all systems of re- 
 ligion, by the influence of natural social forces, Christianity 
 has become a part of the common law of this country to 
 the extent of those of its moral precepts, which have a 
 bearing upon social order, and the breach of which is pro- 
 nounced by common opinion to be injurious to the welfare 
 of society. Immorality and crime, according to public sen- 
 timent as it has been given public expression in the laws of 
 the country, cannot be sanctioned and permitted to those, 
 who through their mental aberrations have adhered to and 
 professed a religion, which authorizes and perhaps com- 
 mands the commission of what is pronounced a crime. An 
 act is still a crime, notwithstanding the actor's religious 
 belief in its justifiableness. So far, therefore, as religious 
 worship involves the commission of a crime, or constitutes 
 a civil trespass against the rights of others, it can and will 
 be prohibited. As Judge Cooley happily expresses it : 
 *' Opinion must be free ; religious error the government 
 
 1 Com. V. Kneeland, 20 Pick. 206, 220, see Updegraph v. Com., 11 S. & E. 
 394; People v. Euggles, 8 Johns. 289 (5 Am. Dec. 335). In speaking of 
 charitable uses, Judge Duer, in Ayresa. Methodist Church, 3 Sandf. 351, 
 said: "If the Presbyterian and the Baptist, the Methodist and the Protest- 
 ant Episcopalian, must each be allowed to devote the entire income of 
 his real and personal estate, forever, to the support of missions, or the 
 spreading of the Bible, so must the Roman Catholic his to the endowment 
 of a monastery or the founding of a perpetual mass for the safety of his 
 soul ; the Jew his to the translation and publication of the Misliua, or the 
 Talmud; and the Mohametan (if in tha,t colluries gentium to which this 
 city [New York], like ancient Rome, seems to be doomed, such shall be 
 among us), the Mohametan his to the assistance or relief of the annual 
 pilgrims to Mecca." 
 
 § 74 
 
172 POLICE CONTROL OF MORALITY AND EELIGION. 
 
 should not concern itself with; but when the minority of 
 any people feel impelled to indulge in practices or to ob- 
 serve ceremonies that the general community look upon as 
 immoral excess or license, and therefore destructive of pub- 
 lic morals, they have no claim to protection in so doing. 
 The State can not be bound to sanction immorality or 
 crime, even though there be persons in a community with 
 minds so perverted or depraved or ill-informed as to believe 
 it to be countenanced or commanded of heaven. And the 
 standard of immorality or crime must be the general sense 
 of the people embodied in the law. There can be no 
 other." ' Thus it has been held by the Supreme Court of 
 the United States that the religious liberty of the Mormons 
 of Utah is not infringed by the act of Congress providmg 
 penalties for the practice of polygamy, which is sanctioned 
 or commanded by their religious creed. ^ In many of the 
 State constitutions, — notably, California, Colorado, Con- 
 necticut, Florida, Georgia, Illinois, Maryland, Minnesota, 
 Mississippi, Missouri, Nevada, New York, South Carolina, 
 there are provisions to the effect that the constitutional 
 guaranty of religious liberty is not to justify or sanction 
 immoral or licentious acts, the practice of which threatens 
 the peace or moral order of society. 
 
 Of late years the question of police regulation of religious 
 worship has assumed a rather important as well as curious 
 phase, in consequence of the formation of rehgious unions, 
 variously called Salvation Army, Band of Holiness, etc., 
 which parade in the public streets, conduct religious exer- 
 cises in the market place, or other prominent thorough- 
 fares, and do other things of a like character, with the 
 desire to attract the attention of those classes of society 
 which are beyond the reach of the ordinary Christian and 
 moral influences. As long as these unions are quiet and 
 
 1 Cooley on Torts, 34. 
 
 2 Reynolds v. United States, 98 U. S. 145. 
 
 § 74 
 
PERMISSIBLE LIMITATION UPON KELIGIOUS WOESHIP. 173 
 
 peaceable in their actions, neither creating any public dis- 
 turbance nor obstructing the thoroughfare, and are not by 
 their utterances so rudely ojffensive to the public sentiment, 
 as tinged and colored by the prevailing influence of Chris- 
 tianity as to endanger the public peace, there will probably 
 be no question raised against the continuance of their pub- 
 lic parades and exhibitions. But suppose an Israelite, a 
 Chinaman, a Mohammedan, the infidel or the atheist, should 
 undertake in the public streets to preach upon the peculiar 
 doctrines of their respective religions, and in their efforts 
 to win disciples should enter upon a free and searching 
 criticism of the distinctive doctrines of the Christian religion, 
 will they be permitted to proceed with their efforts at pros- 
 -elytism, and outrage the prevailing sentiment by utter- 
 ances, which however honest are held by the majority of 
 the community to be little less than blasphemous ? If the 
 public peace is endangered by these public meetings, they 
 can be lawfully prohibited, whether the doctrines taught 
 be Christian or Hebrew, infidel or Mohammedan. All 
 jeligions are equal before the law-, and the Christian has no 
 more right to disturb the public peace by preaching the gos- 
 pel of Christ in the streets of the Jewish or other unchristian 
 xjuarter of a city, than has the Jew or infidel a right to 
 threaten the public peace by the promulgiition of his religious 
 doctrines in a Christian community. But would it be per- 
 missible to prohibit by law discourses which are designed to 
 assail and supplant the Christian religion with some other 
 creed? The quiet and peace of mind of a Christian 
 believer is greatly disturbed, and his inalienable right to 
 ^' the pursuit of happiness " invaded, by hearing upon the 
 public streets and highways animadversions and free criti- 
 cisms of the Christian doctrines and institutions, in whose 
 divine origin and truth he has implicit faith . And being a 
 trespass it would seem permissible to prohibit all such dis- 
 cussions. But the Jew's or infidel's right to " the pursuit 
 of happiness " is as much invaded by the Christian 
 
 § 74 
 
174 POLICE CONTROL OF MORALITY AND RELIGION. 
 
 exhorter's animadversions upon their religious tenets, and 
 is entitled to equal protection. "We therefore conclude, 
 first, that public religious discussions are not nuisances at 
 common law, that is, independently of statute, unless they 
 incite the populace to breaches of the peace, or obstruct 
 the thoroughfare, and in that case the breach of the peace 
 or obstruction of locomotion constitutes the offense against 
 the law rather than the discourse. However, on the ground 
 that all religious discussions on the public streets are more 
 or less calculated to disturb the mental rest and quiet of 
 those whose religious opinions are assailed, we hold that 
 these public meetings can be prohibited altogether. But a 
 law which prohibited those only, which are conducted by 
 the opponents of the Christian religion, would be uncon-^ 
 stitutiona) on account of the discrimination against other 
 religions and in favor of the Christian religion. All relig- 
 ious discourses in the street and other public places should 
 be prohibited or none at all. 
 
 § 75. Religious discrimination in respect to admissi- 
 bility of testimony. — According to the English common 
 law, no one was a competent witness, who did not believe 
 in the existence of God, and of a state of rewards and pun- 
 ishments hereafter. This rule has been recognized and en- 
 forced to its fullest extent in the earlier cases ,^ and it was 
 almost universally required by the courts of this country, 
 that the witness, in order to be competent, should believe 
 in a superintending Providence, who can and would punish 
 perjury.^ The reason for the rule was declared to be, that 
 without such belief an oath could not be made binding upon 
 
 1 See Atwood v. Welton, 7 Conn. 66. 
 
 ^ See Arnold v. Arnold, 13 Vt. 362; Hnnscom v Hunscom, 15 Mass. 
 184; Butts V. Swartwood, 2 Cow. 431; Cnbbison v. McCreery, 7 Watts 
 & S.-262; Jones v. Harris, 1 Strobh. 160; Blocker v. Bumess, 2 Ala. 364; 
 Brock V. Milligan, 10 Ohio, 121; Central K. R. Co. v. Bockatellow, 17 HI. 
 641. 
 
 § 75 
 
8UNDAT LAWS. 175 
 
 the conscience, and such a person's testimony was there- 
 fore unworthy of belief. The growth of public opinion 
 towards the complete recognition of religious liberty is 
 exerting its influence upon this rule, and in many of the 
 State constitutions there are provisions which abolish this 
 and every other religious qualification of witnesses.^ Mr. 
 Cooley says, "wherever the common law remains un- 
 changed, it must, we suppose, be held no violation of re- 
 ligious liberty to recognize and enforce its distinctions." 
 But it would appear to us that the enforcement of such a 
 law would violate the constitutional guaranty of religious 
 liberty, and hence the enactment of this constitutional pro- 
 vision was an implied repeal of the common-law require- 
 ment.* 
 
 § 76. Sunday laws. — The most common form of legal 
 interference in matters of religion is that, which requires the 
 observance of Sunday as a holy day. In these days, the 
 legal requirements do not usually extend beyond the com- 
 pulsory cessation of labor, the maintenance of quiet upon 
 the streets, and the closing of all places of amusements; 
 but the public spirit which calls for a compulsory obser- 
 vance of these regulations is the same which in the colonial 
 days of New England imposed a fine for an unexcused ab- 
 sence from divine worship. Although other reasons have 
 been assigned for the State regulation of the observance of 
 Sunday, in order to escape the constitutional objections 
 that can be raised against it, if it takes the form of a 
 religious institution,^ those who are most active in securing 
 the enforcement of the Sunday laws do so, because of the 
 religious character of the day, and not for any economical 
 
 1 Such a provision is to be found in Arkansas, California, Florida, 
 Indiana, Iowa, Kansas, Michigan, Minnesota, Missouri, Kebraska, Ne- 
 vada, New York, Ohio, Oregon, Wisconsin. 
 
 2 See Perry's Case, 3 Gratt. 632. 
 
 3 Seepvst. 
 
 § 76 
 
176 POLICE CONTROL OF MORALITY AND RELIGION. 
 
 reason. While it is not true that the institution of a special 
 day of rest for all men is " a purely religious idea," ^ it is 
 because of the strong influence of the religious idea that 
 there are active supporters of such laws. Whatever eco- 
 nomical reasons may be urged in favor of the Sunday laws, 
 requiring the observance of the day as a day of general 
 rest from labor, their influence upon the people would be 
 powerless to secure an enforcement of these laws. The 
 effectiveness of the laws is measured by the influence of the 
 Christian idea of Sunday as a religious institution. " De- 
 rived from the Sabbatical institutions of the ancient He- 
 brew, it has been adopted into all the creeds of succeeding 
 religious sects throughout the civilized world; and whether 
 it be the Friday of the Mohamedan, the Saturday of the 
 Israelite, or the Sunday of the Christian, it is alike fixed in 
 the affections of its followers, beyond the power of eradi- 
 cation, and in most of the States of our confederacy, the aid 
 of the law to enforce its observance has been given under 
 the pretense of a civil, municipal or police regulation." ^ 
 
 But Sunday, as a religious institution, cau receive no 
 legal recognition. It is manifest that the religious liberty 
 of the Jew or the infidel would be violated by a compulsory 
 observance of Sunday as a religious institution. While 
 such a regulation; if it did not extend to a prohibition of the 
 Jew's religious observance of the seventh day, or to a com- 
 pulsory attendance upon Christian worship, may not amount 
 to a direct infringement of his religious liberty, he may still 
 reasonably claim that it operates indirectly as a discrimina- 
 tion against his religion, by requiring him to respect Sunday 
 as a day of rest, while his conscience requires of him a like 
 observance of Saturday.* But the legal establishment of 
 Sunday as a religious institution, would violate the Christian's 
 religious liberty, as much as that of the Jew. The compul- 
 
 1 Terry, Ch. J., in Ex parte Newman, 9 Cal. 609. 
 8 Opinion of Terry, Ch. J., 9 Cal., p. 509. 
 » Cooley's Const. Llm. *4;76. 
 § 76 
 
SUNDAY LAWS. 177 
 
 sory observance of a religious institution against conscience 
 is no more a violation of the constitutional limitations than 
 a like compulsion in conformity with one's religious convic- 
 tions. " The fact that the Christian voluntarily keeps holy 
 the first day of the week does not authorize the legislature 
 to make that observance compulsory. The legislature 
 caunot compel a citizen to do that which the constitution 
 leaves him free to do, or omit, at his election." ' We 
 ■therefore coaclude that Sunday laws, so far as they require 
 a religious observance of the day, are unconstitutional, an^ 
 «annot be enforced^ If these laws can be sustained at alC 
 they must be supported by some other unobjectionable 
 reasons.^ But there have been decisions in favor of the 
 oompulsory observance of Sunday as a religious institution.^ 
 
 1 Burnett, J., in Ex parte Newman, 9 Cal. 510. 
 
 ' '■ Under the constitution of this State, the legislature cannot pass any 
 act, the legitimate effect of which is forcibly to establish any merely 
 religious truth, or enforce any merely religious observances. The Legisla- 
 ture has no power over such a subject. When therefore a citizen is sought 
 to be compelled by the legislature to do any affirmative religious act, or to 
 lefrain from doing anything, because it violates simply a religious princi- 
 ple or observance, the act is unconstitutional." Burnett, J., in Ex parte 
 I^ewman, 9 Cal. 610. See, also, Com. v. Has, 122 Mass. 40; Com. v. 
 Specht, 8 Pa. St. 312; Com. v. Wolf, 3 Serg. & E. 48; Com. v. Nesbit, 34 
 Pa. St. 398; Hudson, v. Geary, 4 E. I. 485; State v. Bait. & O. E. E., 16 
 W. Va. 362 (36 Am. Rep. 803) ; Charlestons. Benjamin, 2 Strobh. 508; 
 McGatricko. Wason, 4 Ohio St. 566; Johns v. State, 78 Ind. 332; Bohl v. 
 State, 3 Tex. App. 683; State !7. Bott, 31 La. Ann. 663 (33 Am. Eep, 224). 
 
 ^ Scott, J., in State v. Ambs, 20 Mo. 214, 216, uses this language: 
 " Those who question the constitutionality of our Sunday laws seem to 
 imagine that the constitution is to be regarded as an instrument formed 
 lor a State composed of strangers collected from all quarters of the globe, 
 «ach with a religion of bis own, bound by no previous social ties, nor 
 sympathizing In any common reminiscences of the past; that, unlike 
 ordinary laws. It is not to be construed in reference to the State and con- 
 ditionof those for whom it was intended, but that the words in which it is 
 comprehended are alone to be regarded without respect to the history of 
 the people for whom it was made. It is apprehended, that such is not the 
 mode by which our organic law is to be interpreted. We must regard the 
 people for whom it was ordained. It appears to have been made by Chris- 
 tian men. The constitution on its face shows that the Christian religion 
 
 12 S 76 
 
178 POLICE CONTKOL OF MOEALITT AND EELIGION. 
 
 Notwithstanding the strictly religious aspect the observance 
 of a general day of rest has always assumed among all people, 
 and under all systems of religion ; although the observance 
 of such a day has always been taught to be a divine inj unction ; 
 it is claimed, with much show of reason, that this custom, 
 even as a religious institution, was originally established as a 
 sanitary regulation, designed to procure for the individual 
 that periodical rest from labor so necessary to the recuper- 
 ation of the exhausted energies : and the religious character 
 was given to it, in order to secure its more universal observ- 
 ance. In the primitive ages of all nations, theology, 
 medicine and law were administered by the same body of 
 
 ■ men, and it was but natural that they should apply to a 
 much needed sanitary regulation, the spiritual influence of 
 theology and its obligation of law. Under this view of the 
 matter, the observance of a day of rest was, in the order of 
 history, primai-ily a sanitary regulation, and secondarily a 
 religious institution. Under our constitutional limitations^ 
 it is only in its primary character that an observance of the 
 law can be exacted. 
 
 (: All sanitary regulations operate directly upon the indi- 
 vidual, and from the medical standpoint, their primary ob- 
 ject is the benefit to the individual. It is so likewise with. 
 
 Cthe observance of a day of rest.*ilt is the individual which 
 is primarily benefited by the cessation from labor, and the- 
 community or society is only remotely and indirectly bene- 
 
 was the religion of its framers. * * * They, then, who engrafted on our 
 constitution the principles of religious freedom contained therein, did not 
 regard the compulsory observance of Sunday, as a day of rest, a violation 
 of those principles. They deemed a statute compelling the observance of 
 Sunday necessary to secure a full enjoyment of the rights of conscience. 
 How could those who conscientiously believe that Sunday is hallowed time, 
 to be devoted to the worship of God, enjoy themselves in its observance 
 amidst all the turmoil and bustle of worldly pursuits, amidst scenes by 
 which the day was desecrated, which they conscientiously believe was 
 holy?" See also, Stover o. State, 10 Ark. 269, 263; LindenmuUer v. 
 People, 33 Barb. 568. 
 § 76 
 
SUNDAY LAWS. 179 
 
 f ted by the increased vitality of his offspring and possibly 
 relief from the public burden of an early decrepitude, the 
 result of overwork^ The failure to observe this law of nature, 
 calling for rest from labor on every seventh day, — for this 
 has been demonstrated by the experience of ages to be a law of 
 nature, — is, like every other inordinate gratification of one's 
 desires, a vice, and not the subject of law. The possible evil, 
 flowing from this " vice," will not justify the State authori- 
 ties in entering the house and premises of a citizen, and there 
 compel him to lay down his tool or his pen, and refrain 
 from labor, on the ground that his unremittent toil will pos- 
 sibly do damage to society through his children. How can 
 it be proved a priori that that man needs the rest that the 
 law requires him to take ? He may be fully able to continue 
 his labor, at least during a portion of the Sunday, without 
 doing any damage to anybody.^ Furthermore, it may be 
 shown that he has for special reasons, or because his relig- 
 ion requires it, abstained from labor for the required time 
 on some other day. And having done so, from the indi- 
 vidual standpoint, he has substantially complied with the 
 requirements of the law.* Then must the conclusion be 
 
 1 « Again it may be well considered that the amount of rest whichi 
 would be required by one half of society may be widely disproportionate- 
 to that required by the other. It is a matter of which each individual 
 must be permitted to judge for himself, according to his own instincts 
 and necessities. As well might the legislature fix the days and hoars for 
 work, and enforce their observance by an unbending rule which shall be 
 visited alike upon the weak and strong ; whenever such attempts are 
 made, the law-making power leaves its legitimate sphere, and makes 
 an incursion into the realms of physiology, and its enactments like the 
 sumptuary laws of the ancients, which prescribe the mode and texture of 
 people's clothing, or similar laws which might prescribe and limit our 
 food and drink, must be regarded as an invasion, without reason or neces- 
 sity, of the natural rights of the citizens, which are guaranteed by the 
 fundamental law." Terry, Ch. J., Ex parte Newman, 9 Cal. 508. 
 
 * " It appears to us that if the benefit of the individual is alone to be 
 considered, the argument against the law which he may make, who has 
 already observed the seventh day of the week, is uwmsraerable." Cooley's 
 Const. Lim. *476, *477. 
 
 § 76 
 
180 POLICE CONTROL OF MORALITr AND RELIGION. 
 
 reached, that there are no satisfactory grounds upon which 
 Sunday laws can be sustained, and the constitutional ob- 
 jections avoided? 
 
 It matters not what is the moving cause, or what amount 
 of gratification is had out of the act, the commission of a 
 trespass upon another's rights, or the reasonable fear of such 
 a trespass, always constitutes sufficient ground for the exer- 
 cise of police power. The prevention of a trespass is the in- 
 variable purpose of a police regulation. It is the right of 
 every one to enjoy quietly, and without disturbance, his 
 religious liberty, and his right is invaded as much by noise 
 and bustle on his day of rest, varying only in degree, as by 
 a prohibition of religious worship according to one's convic- 
 tions. Noisy trades and amusements, and other like dis- 
 turbances of the otherwise impressive quiet of a Sunday, 
 may therefore be prohibited on that day, In complete con- 
 formity with the limitations of police power.^ But the 
 prosecution of noiseless occupations, and the indulgence in 
 quiet, orderly amusements, since they involve no violation 
 of private right, cannot be prohibited by law without in- 
 fringing upon the religious liberty of those who are thus 
 prevented, and such regulations would therefore be uncon- 
 stitutional. It is barely possible, but doubtful, that a law 
 could be sustained under the principles here advanced, 
 which required that the front doors of stores and places of . 
 amusement should be kept closed on Sunday, but not 
 otherwise interfering with the noiseless occupations and di- 
 versions. The total prohibition of such employments and 
 labor on Sunday, except possibly for a reason to be sug- 
 gested and explained later, could only be justified by the 
 
 ' " While I am thus resting on the Sabbath In obedience to law, It Is 
 right and reasonable that my rest should not be disturbed by others. 
 Sach a disturbance by others of my rest, is in its nature a nuisance, 
 which the law ought to punish, and Sabbath-breaking has been fre- 
 quently classed with nnisances and punished as such." State o. B. & 0- 
 
 / E. R., 15 W. Va. 362 (36 Am. Eep. 803, 814.) 
 
 ' § 76 
 
SUNDAY LAWS. 181 
 
 religious character of the day, and we have already seen 
 that that aspect of Sunday cannot be taken into account, ki 
 framing the Sunday laws. 
 
 But there is, perhaps, a constitutional reason why the pro- 
 hibition of labor on Sunday should be extended to other than 
 noisy trades and employments. The reason calls for the 
 avoidance of an indirectly threatened trespass, rather than 
 the prohibition of a direct invasion of right. In the ideal 
 state of nature, when free agency and independence of the 
 behests of others may be considered factual, the prosecution 
 of a noiseless trade or other occupation could not in any 
 sense be considered as, either constituting a trespass, or 
 threatening one. Each man, being left free to do as he 
 pleased, would then have the equal liberty of joining in the 
 religious observance of the day or continuing his labor, sub- 
 ject to the single condition, that he must not in doing so 
 disturb the religious worship of others. But we are not liv- 
 ing in a state of nature. Whatever the metajihysicians or 
 theologians may tell us about free will, in the complex so- 
 ciety of the present age, the individual is a free agent to 
 but a limited degree. He is in the main but the creature 
 of circumstances. Like the shuttle, he may turn to the 
 right or to the left, but the web of human events is woven, 
 unaffected by this freedom of action. Those who most 
 need the cessation from labor, are unable to take the nec- 
 essary rest, if the demands of trade should require their 
 uninterrupted attention to business. And if the law did 
 not interfere, the feverish, intense desire to acquire wealth, 
 so thoroughly a characteristic of the American nation, incit- 
 ing a relentless rivalry and competition, would ultimately 
 prevent, not only the wage-earners, but likewise the capital- 
 ists and employers themselves, from yielding to the warn- 
 ings of nature, and obeying the instinct of self-preservation 
 by resting periodically from labor, even if the mad pursuit 
 of wealth should not warp their judgment and destroy this 
 instinct. Remove the prohibition of law, and this whole- 
 
 § 76 
 
182 POLICE CONTROL OP MORALITT AND RELIGION. 
 
 some sanitary regulation would cease to be observed. No 
 one, if he would, could do so. The prohibition of labor 
 for these reasons may be contradictory of the constitutional 
 affirmation of the equality of all men ; and the prohibitory 
 law may be practically unenforcible ; but it would be diffi- 
 cult to establish any positive constitutional objection to 
 it.^ It has been urged that this law, when founded upon 
 this reason, of protection to the individual, may be sus- 
 tained, if it was confined in its operations to slaves, 
 minors, apprentices and others who are required to obey 
 the commands, of others, and designed to protect them 
 from the cruelty of incessant toil.^ But the slave or 
 apprentice is no more bound to obey the behests of others, 
 and to work at their command, than the free laborer, clerk, 
 and even the employer himself, under the irresistible force 
 of competition, in the struggle for existence and the accumu- 
 lation of wealth. "It is no answer to the requirements of 
 the statute that mankind will seek cessation from labor by the 
 natural influences of self-preservation. The position assumes 
 that all men are independent, and at liberty to work when- 
 ever they choose. Whether this be true or not in theory , it is 
 false in fact ; it is contradicted by every day's experience. 
 The relation of superior and subordinate, master and servant, 
 principal and clerk, always have and always will eyist. 
 
 1 See post i 178. 
 
 2 " The question arising under this act is quite distinguishable from 
 : the case where the legislature of a State, in which slavery is tolerated, 
 
 passes an act for the protection of the slave against the inhumanity of the 
 master in not allowing sufficient rest. ^lathis State, every man is a free 
 agent, competent, and able to protect himself, and no one is bound by law 
 to labor for a particular person. Free agents must be left free as to 
 themselves. Had the act under consideration been confined to infants, or to 
 persons bound by law to obey others, then the question presented would 
 have been very different. Bnt if we cannot trust free agents to resnlate 
 their own labor, its time and quantity, it is difficult to trust them to 
 make their own contracts. If the legislature could prescribe the ' days ' of 
 rest for them, then it would seem that the same power could prescribe 
 hours to work, rest and eatS^ Burnett, J., in Ex parte Newman, 9 Cal. 510. 
 § 76 ^ 
 
SUNDAY LAWS. 1,83 
 
 Labor is in a great degree dependent on capital, and unless 
 the exercise of power which capital aflEbrds is restrained, 
 those who are obliged to labor will not possess the freedom 
 for rest which they would otherwise exercise. Necessities 
 for food and raiment are imperious, and exactions of 
 avarice are not easily satisfied. It is idle to talk of a 
 man's freedom to rest, when his wife and children are look- 
 ing to his daily labor for their daily support. The law 
 steps in to restrain the power of capital. Its object is not 
 to protect those who can rest at their pleasure, but to afford 
 rest to those who need it, and who, from the conditions of 
 society, could not otherwise obtain it. * * * The 
 authority for the enactment, I find in the great object of 
 all governments, which is protection. Labor is necessarily 
 imposed by the condition of our race, and to protect labor 
 is the highest office of our laws. "^ For various reasons, 
 laws have been generally sustained, which compel the clos- 
 ing of the stores of business.^ If the reasoning here pre- 
 
 1 Dissenting opinion of Judge Field in Ex parte Newman, 9 Cal. 502, 618. 
 The opinion of Judge Field although rejected by the majority of the court 
 in Ex parte Newman, was after a change in the personnel of the court 
 adopted as the rule in California in Ex parte Andrews, 18 Cal. 678, and 
 was affirmed in many other later cases, the last being Ex parte Burke, 59 
 Cal. 6 (43 Am. Eep. 231) ; Ex parte Roser, 60 Cal. 177. 
 
 2 Vogelsang v. State, 9 Ind. 112; Shover v. State, 10 Ark. 259; Warne 
 v. Smith, 8 Conn. 14 ; LindenmuUer v. People, 33 Barb. 549 ; Story «. El- 
 liott, 8 Cow. 27; Johnston w. Com., 10 Harris, 102; Bloom v. Richards, 2 
 Ohio, 387; City Councils. Benjamin, 2 Strobh. 529; Specht v. Com., 8 Pa. 
 St. 312. In the last case, the court expresses itself thus : "It intermed- 
 dles not with the natural and indefeasible right of all men to worship 
 Almighty God according to the dictates of their own consciences; it com- 
 pels none to attend, erect or support any place of worship, or to main- 
 tain any ministry against his consent; it pretends not to control or to 
 Interfere with the rights of conscience, and it establishes no preference 
 lor any religious establishment or mode of worship. It treats no relig- 
 ious doctrine as paramount In the State ; it enforces no unwilling attend- 
 ance upon the celebration of divine worship. It says not to the Jew or 
 Sabbatarian, ' You shall desecrate the day, you esteem as holy, and keep 
 sacred to religion that we deem to be so! It enters upon no discussion 
 of the rival claims of the first or seventh days of the week, nor pretends 
 
 § 76 
 
184 POLICE CONTROL OF MORALITY AND RELIGION. 
 
 sented be correct, and the premises into which it has beea 
 formulated be impregnable, the following conclusion is in- 
 evitable, viz. : that no Sunday law is constitutional which 
 does more than prohibit those acts, which are noisy and are 
 1 therefore calculated to disturb the quiet and rest of Sunday 
 ' woi'shipers, or which in their commission demand or are 
 I likely to demand, the services of others, who cannot refuse 
 ^ to serve, on account of the common interdependence of 
 i mankind. The doing of any act, which is noiseless and 
 does not require the service of others, can not be prohibited. 
 It is not maintained that this limitation upon the power of 
 the State to regulate the observance of Sunday, is recog- 
 nized and indorsed by the decisions of our courts. On the 
 contrary, there are police regulations in the different States, 
 which are sustained in violation of this rule of limitation. 
 The laws which prohibit quiet and orderly amusements can- 
 not be sustained under the rule, and so also those laws, 
 which make void the commercial paper and deeds which 
 are executed on Sunday. Other instances of existing legis- 
 lation, contradictory of this rule of limitation, may be cited, 
 but it is not necessary. But although not generally sup- 
 ported by the authorities, it is believed to be the correct 
 rule. The same reasons, which are here advanced, would 
 likewise support and justify legislation, designed to protect 
 the Jew in his religious observance of Saturday, and the 
 Mohamedan in his enjoyment of Friday. But if the rule 
 
 to bind upon the coDscience of any man any conclusion upon a subject 
 which each must decide for himself. It intrudes not into the domestic 
 circle to dictate when, where, or to what God its Inmates shall address 
 their orisons ; nor does it presume to enter the synagogue of the Israel- 
 ite, or the church of the seventh-day Christian, to command or even per- 
 suade their attendance in the temples of those who especially approach 
 the altar on Sunday. It does not in the slightest degree infringe upon the 
 Sabbath of any sect, or curtail their freedom of worship. It detracts 
 not one hour from any period of time they may feel bound to devote to 
 this object, nor does it add a moment beyond vphat they may choose to 
 employ. Its sole mission Is to inculcate a temporary weekly cessation 
 from labor, but it adds not to this requirement any religious obligation." 
 § 76 
 
SUNDAY LAWS. 185 
 
 were carried to the extreme, of giving equal protection to 
 the enjoyment of the religious days of every sect, the business 
 prosperity of the country would be seriously impaired. 
 Although the Jew aud the Mohamedan have the same right 
 to the quiet and undisturbed enjoyment of his holy day, 
 the public welfare, which likewise is the main spring to the 
 Sunday laws, requires that his enjoyment of his religion 
 should sustain the burden and annoyance occasioned by the 
 general prosecution of trades and occupations on their holy 
 days. [In Charleston, S. C, it is said that an ordinance re- 
 quires all vehicles on Saturday to pass the Jewish synagogues 
 in a slow walk, in order to reduce disturbance of the wor- 
 ship to a minimum. J The selection of Sunday, as the day of 
 rest to be observed by all , is not justified by its religious char- 
 acter, although its religious character, in the eyes of the 
 masses of this country, suggests the reason of its selection in 
 preference to some other day. The interference of the State 
 is, after all, for the purpose of promoting the public wel- 
 fare, for the purpose of securing to society the benefits 
 arising from a general periodical cessation from labor ; and 
 that object can be best attained by setting apart as a legal 
 day of rest, that day which is looked upon as a holy day by 
 the vast majority of our people. In some of our States, 
 there are statutory exceptions in favor of those who con- 
 scientiously observe some other day of the week as a holy 
 day, and abstain from labor on that day, and in Ohio, it 
 has been held that a statute which did not contain such an 
 exception, was for that reason unconstitutional.^ But in 
 other States, it is held that the Sunday law in its applica- 
 tion to the orthodox Jew, was not in violation of the article 
 in the State constitution, which declares that no person shall 
 " upon any pretense whatever be hurt, molested, or re- 
 strained in his religious sentiments or persuasions." ^ Tlie 
 restraint upon the right to engage in lawful employment and 
 
 » Cincinnati v. Rice, 15 Ohio, 226; Cantons. Nist, 9 Ohio St. 439. 
 * Frolickstein v. Mobile, 40 Ala. 725. 
 
 S 76 
 
186 POLICE CONTROL OP MORALITY AND KELIGION. 
 
 to do otherwise lawful acts, is reasonable, because necessary 
 to the successful maintenance of a general day of rest.^ 
 
 "While it is claimed that the State can not go beyond the 
 limitations that have been presented, in enacting laws for the 
 observance of Sunday as a day of rest, it rests with the 
 discretion of the legislature how far the enactment should 
 extend within these limitations, and the scope of the legis- 
 lation has varied with the public policy in each State. We 
 have already noticed exemptions from the operation of the 
 Sunday laws in favor of the Jew. In some of the States 
 only a person's ordinary calling is intended to be sup- 
 
 1 " The legislature obviously regarded it as promotive of tbe mental, 
 moral and physical well-being of men, that they should rest from their 
 labors at stated intervals; and in this all experience shows they were 
 right. If then, rest is to be enjoined as a matter of public policy at 
 stated intervals, it is obvious that public convenience would be much 
 promoted by the community generally resting on the same day, for other- 
 wise, each individual would be much annoyed and hindered in finding 
 that those, with whom he had business to transact, were resting on the 
 day on which he was working. The legislature, holding these views in 
 selecting the particular day of rest, doubtless selected Sunday, because it 
 was deemed a proper day of rest by a majority of our people who thought 
 it a religious duty to rest on that day; and in selecting this day for these 
 reasons, the legislature acted wisely. The law requires that the day be 
 observed as a day of rest, not because it is a religious duty, but because 
 such observance promotes the physical, mental and moral well-being of 
 the community ; and Sunday is selected as the day of rest, because if any 
 other day had been named, it would have imposed unnecessarily onerous 
 obligations on the community, inasmuch as many of them would have 
 rested on Sunday as a religious duty, and the requirement of another day 
 to be observed as a day of rest, would have resulted in two days being 
 observed instead of one, and thus time would have been uselessly 
 wasted. This I conceive is the main object of our law ; but it is not 
 its only object." State v. Bait. & O. E. R. Co., 15 W. Va. 302 (36 
 Am. Rep. 803, 814) ; an exemption of this kind was declared uncon- 
 stitutional in Louisiana, because it discriminated between religious 
 sects. Shreveport v. Levy, 26 La. Ann. 67. But it was held valid in Indi- 
 ana. Johns V. State, 78 Ind. 332. InSimonds' Exrs.i;. Gratz, 2 Pen. & 
 Watts, 412, it was held that it was no ground for a continuance that a, 
 Jew had conscientious scruples against attendance at the trial of his 
 cause on Saturday. 
 § 76 
 
SUNDAY LAWS. 187 
 
 -pressed ; ^ and there is an universal exception in favor of 
 works of charity and necessity. But what constitutes 
 charity and necessity is not viewed in the same light in 
 every State. It is a common rule that traveling on Sun- 
 day, except in cases of charity or necessity, is unlawful, 
 and any one injured while so doing cannot recover dam- 
 ages.^ But whether a certaiu act is looked upon as a nec- 
 •essity, will depend largely upon the condition of public 
 sentiment, its mere fitness and propriety being the only 
 standard of right and wrong. ^ We must therefore ex- 
 pect to find contradictory conclusions upon this question of 
 necessity. In Pennsylvania it is not considered a work of 
 necessity for a barber to shave his customers on Sunday,* 
 while it is deemed a necessity in Texas.^ In some States | 
 the running of railroad trains and the operation of street I 
 railroads are held to be necessary.® In other States both 
 have been held to be violations of the Sunday laws.' The 
 transportation of cattle received on Sunday,* feeding stock 
 a,nd gathering the necessary feed,' the gathering of grain 
 which may be injured if left in the field until Monday,'" 
 the expenditure of the labor necessary to prevent waste of 
 
 ' Mills V. Williams, 16 S. C. 594, 597, approving Hellams v. Aber- 
 crombie, 16S. C. 110, 113; Bennett v. Brooks, 9 Allen, 118. 
 
 ' Hinckley v. Penobscot, 42 Me. 89; Cratty v. Bangor, 57 Me. 423 (2 
 Am. Rep. 56) ; Johnson v. Irasburg, 47 Vt. 28 (19 Am. Rep. Ill) ; Bos- 
 "worth V. Swansey, 10 Met. 364; Connolly v. Boston, 117 Mass. 64 (19 
 Am. Rep. 396) ; Davis v. Somerville, 128 Mass. 594. 
 
 * See Davis v. Somerville, 128 Mass. 594 ; McClary v. Lowell, 44 Vt. 
 116 (8 Am. Rep. 366); Logan v. Matthews, 6 Pa. St. 417; Johnson v. 
 People, 31 111. 469. 
 
 * Com. V. Jacobus, 1 Leg. Gaz. Rep. (Pa.) 491. 
 5 State. V. Lorry, 7 Barb. 95. 
 
 « Com. ji. Louisville & Nashville R. R. Co., 80 Ky. 291; Augusta & I- 
 S. R. R. Co. V. Renz, 55 Ga. 126. I 
 
 ' Sparhawk v. Union Passenger R. Co., 64 Pa. St. 401; Com. v. Jean- t 
 dell, 2 Grant Cas. 506. » 
 
 8 Phil. &B. R. R. Co. V. Lehman, 56 Md. 209. 
 ' Edgerton v. State, 69 Ind. 588. 
 io Turner v. State, 67 Ind. 695. 
 
 § 76 
 
188 POLICE CONTROL OF MORALITY AND RELIGION. 
 
 sap in making maple sugar ,^ have been held to be lawful 
 because they were works of necessity. In other States 
 similar acts were held to be unlawful, on the ground of not 
 being deemed necessary.^ 
 
 1 Whitcomb v. Gilmau, 35 Vt. 497. 
 
 * State V. Goff, 20 Ark., 289 ; Jones v. Andrews, 10 Allen, 18. 
 § 76 
 
CHAPTER Vm. 
 
 FREEDOM OP SPEECH AND LIBERTY OF THE PRESSES 
 
 § 81. Police supervision prohibited by the constitu- 
 tions. — A popular goverument, and hence freedom from 
 tyranny, is only possible when the people enjoy the free- 
 dom of speech, and the liberty of the press. If the indi- 
 vidual is not free to publish by word of mouth or writing, 
 or through the press, the complaints of encroachments 
 of the government or of individuals upon his rights and 
 liberties, he is deprived of his liberty, and he is not a free- 
 man. Even if there were no special constitutional restric- 
 tions upon the governmental control ot these rights, the 
 State regulation would be unconstitutional, which denied 
 the right of the individual to publish what he pleases, or 
 prohibited the publication of newspapers or other periodi- 
 cals or books, on the general ground that they would in- 
 volve the deprivation of liberty and the right to pursue 
 happiness. But the liberty of speech and of the press is 
 not to be confounded with a licentiousness and a reckless dis- 
 regard of the rights of others. No one can claim the right to 
 slander or libel another, and the. constitutions do not permit 
 or sanction such wrongful acts. Liberty of speech and of 
 the press, therefore, means the right to speak or publish 
 what one pleases, the utterance of which does not work an 
 injury to any one, by being false. The common law pro- 
 vided for the due punishment of such trespasses upon the 
 right to reputation, and ordinarily these remedies, which 
 prevail generally, afford suffioienfepirotection to the individ- 
 ual and the public. But sometimes, and oftener in these 
 later days, when the press has acquired extraordinary 
 
 (189) 81 
 
190 FREEDOM OF SPEECH AND LIBERTY OF THE PRESS. 
 
 power, these remedies prove ineffectual. The tendency of 
 the press, at least of this country, is to publish sensational, 
 and oftener false, accounts of individual wrongs and immor- 
 alities, to such an extent that newspapers too often fall 
 properly within the definition of obscene literature. If 
 possible, the publication of such matter should be sup- 
 pressed, or at least published in such a way, as to do little 
 or no harm to the morals of the community. 
 
 Then again, we have newspapers, in whose columns we 
 find arguments and appeals to passion, designed to incite 
 the individual who may be influenced thereby to the com- 
 mission of crimes, appeals to " dynamiters," socialists and 
 nihilists, and all other classes of discontents, who believe 
 the world has been fashioned after a wrong principle, and 
 needs to be remodeled. Of course, those who do these 
 reprehensible things may be punished for each overt act. 
 But the only effective remedy would be the establishment 
 of a censorship over the press, by which such publication 
 may be prevented, instead of being punished after the evil 
 has been done. Under the general constitutional pro- 
 visions, this supervision of the press would be permissible, 
 and would not infringe the liberty of the individual. It 
 would be only such a restraint upon the liberty of the 
 speech and of the press, as would promote public welfare, 
 and would be sanctioned as an exercise of the police power 
 of the government. But such a control of the press would 
 be very liable to abuse, and through it the absolute sup- 
 pression of the press would be rendered possible, if the 
 government should fall into the hands of designing men, 
 and at all events it would be an eflFective engine of oppres- 
 sion. 
 
 Profiting by their experience in the colonial days, when 
 the English government exercised a control over the press, 
 sometimes to the extent of prohibiting the publication of 
 the paper, and always to the extent of suppressing all pro- 
 tests and arguments agaii.st England's oppressive acts; our 
 § 81 
 
POUCK SUPERVISION PROHIBITED BY CONSTITUTION. 191 
 
 forefathers provided by constitutional provisions, botli in 
 the Federal and in the State constitutions, that the liberty 
 of speech and of the press shall not be abridged by any 
 law. The provision varies in phraseology in the different 
 constitutions, but the limitation upon the power of govern- 
 ment is the same in all cases. While this constitutional pro- 
 vision prohibits all control or supervision of the press in the 
 way of a license or censorship, the slanderer or libeler may 
 still be punished. He suffers the penalty inflicted by the law 
 for the abuse of his privilege. The opinion of Chief Justice 
 Parker of Massachusetts, has been frequently quoted, and 
 generally recognized as presenting the correct construction 
 of this constitutional provision. In Commonwealth v. 
 Blanding,^ he says: '* Nor does our constitution or declara- 
 tion of rights abrogate the common law in this respect, as 
 some have insisted. The sixteenth article declares that ' lib- 
 erty of the press is essential to the security of freedom in a 
 State ; it ought not, therefore, to be restrained in this Com- 
 monwealth. The liberty of the press, not its licentious- 
 ness: this is the construction which a just regard to the 
 other parts of that instrument, and to the wisdom of those 
 who founded it, requires. In the eleventh article, it is de- 
 clared that ' every subject of the Commonwealth ought to 
 find a certain remedy, by having recourse to the laws, for 
 injuries or wrongs which he may receive in his person, 
 property, or character ; ' and thus the general declaration in 
 the sixteenth article is qualified. Besides, it is well under- 
 stood and received as a commentary on this provision for 
 the liberty of the press, that it was intended to prevent all 
 such previous restraints upon publications as had been prac- 
 ticed by other governments, and in early times hereto stifle 
 the efforts of patriots towards enlightening their fellow- 
 subjects upon their rights and the duties of rulers. The 
 
 1 3 Pick. 304, 313. See, also, Story on Constitution, § 1889; 2 Kent, 
 17; Wharton's State Trials, 323; Bespublica v. Dannie, i Yeates, 207 (2 
 Am. Dec. 402). 
 
 § 81 
 
192 FEEEDOM OF SPEECH AND LIBEETT OF THE PRESS. 
 
 liberty of the press was to be unrestrained, but he who used it 
 was to be responsible in case of its abuse; like the right to 
 keep fire-arms, which does not protect him who uses them 
 for annoyance or destruction." 
 '' But while all previous restraints are forbidden by this pro- 
 vision of the constitution, the permissible restraints upon 
 the freedom of speech and of the press are not confined to 
 responsibility for private injury. All obscene or blasphe- 
 mous publications may be prohibited, as tending to do harm 
 to the public morals. So, likewise, may the publication of 
 all defamatory statements, whether true or false, concern- 
 ing private individuals, in whom the public have no con- 
 cern, be prohibited, as was the case at common law, and is 
 now in some of the States, on the ground that such publica- 
 tions do no good, and excite breaches of the peace. In 
 neither case is there any private injury inflicted, but the 
 harm to the public welfare is the justification of the prohi- 
 bition. 
 
 " The constitutional liberty of speech and of the press, as 
 we understand it, implies a right to freely utter and publish 
 whatever the citizen may please, and to be protected 
 against any responsibility for so doing, except so far as 
 such publications, from their blasphemy, obscenity, or scan- 
 dalous character, may be a public offense, or as, by their 
 falsehood and malice, they may injuriously affect the stand- - 
 ing, reputation, or pecuniary interests of individuals." ^ 
 
 So, also, is it not to be inferred from the prohibition of a 
 censorship of the press, that the pi'ess, can without liability 
 for its wrongful use, make use of the constitutional privilege 
 for the purpose of inciting the people to the commission 
 of crime against the public. The newspapers of anarchists 
 and nihilists cannot be subjected to a censorship, or be 
 absolutely suppressed ; but if the proprietors should in their 
 
 I Cooley Const. Lim. 521 (*422). 
 § 81 
 
POLICE SUPERVISION PROHIBITED BT CONSTITUTION. 193 
 
 columns publish inflammatory appeals to the passion of 
 discontents, and urge them to the commission of crimes 
 against the public or against the individual, they may very 
 properly be punished, and without doubt the right to the 
 -continued publication may be forfeited as a punishment for 
 the crime. 
 
 18 § 81 
 
CHAPTBK IX. 
 
 POLICE EEGITLATIONS OF TRADES AND PEOFESSIONS, 
 
 Section 85. General propositions. 
 
 86. Protilbitlon as to certain classes. 
 
 87. Police regulation of skilled trades and learned professions, 
 
 88. Regulation of practice in the learned professions. 
 
 89. Regulation of sale of certain articles of merchandise. 
 
 90. Legal tender, and the regulation of the currency. 
 
 - ' 91. Legislative restraint of importations — Protective tarifis. — 1^~ 
 
 92. Compulsory formation of business relations. 
 
 93. Regulation of prices. 
 
 94. Usury and interest laws. 
 
 95. Prevention of speculation. 
 
 96. Prevention of combinations in restraint of trade. 
 
 97. Boycotting. 
 
 98. Contracts against liability for negligence prohibited. 
 
 99. Wager contracts prohibited. 
 99a. Option contracts, when illegal. 
 
 100. General prohibition of contracts, on account of public policy, 
 
 101. Licenses. 
 
 102. Prohibition of occupations in general. 
 
 103. Prohibition of the liquor trade. 
 
 104. Police control of employments in respect to locality. 
 
 105. Monopolies, creation of. 
 
 § 85. General propositions. — It will probably not be 
 disputed that every one has a right to pursue in a lawful 
 manner, any lawful calling which he may select. The State 
 can neither compel him to pursue any particular calling, 
 nor prohibit him from engaging in any lawful business, pro- 
 vided he does so in a lawful manner. It is equally recog- 
 nized as beyond dispute, that the State, in the exercise- 
 of its police power, is, as a general proposition, authorized 
 to subject all occupations to a reasonable regulation, where 
 such regulation is required for the protection of public 
 interests, or for the public welfare. It is also conceded 
 § 85 (194) 
 
GENERAL PKOPOSITIONS . 195 
 
 that there is a limit to the exercise of this power, and that 
 it is not an unlimited arbitrary power, which would enable 
 the legislature to prohibit a business, the prosecution of 
 which inflicts no damage upon others. But the difficulty is 
 experienced, when an attempt is made to lay down a general 
 rule, by which the validity of a particular regulation may 
 be tested. There can be no objection raised to such a 
 regulation, unless it contravenes some constitutional provis- 
 ion. " The State legislatures have the power, unless there 
 be something in their own constitution to prohibit it, of en- 
 tirely abolishing or placing under restrictions any trade or 
 profession, which they may think expedient." ^ It is a 
 matter of great doubt, whether in any of the State constitu- 
 tions there is any special limitation ujjon the power of the 
 —legislature to regulate and enjoin the prosecution of trades 
 and occupations, and if there is any limitation it must be 
 inferred from the general clauses, such as " every man has 
 an inalienable right to life, liberty, and the pursuit of hap- 
 piness," or "no man shall be deprived of his life, liberty 
 and property, except by due process of law." No man's 
 liberty is safe, if the legislature can deny him the right to 
 engage in a harmless calling ; there is certainly an interfer- 
 ence with his right to the pursuit of happiness in such a 
 case; and such a prohibition would be a deprivation of his 
 liberty " without due process of law." Judge Cooley says 
 in this connection: "What the legislature ordains and the: 
 constitution does not prohibit must be lawful. But if the 
 constitution does no more than to provide that no person 
 shall be deprived of life, liberty, or property, except by due 
 process of law, it makes an important provision on this sub- 
 ject, because it is an important part of civil liberty to have the 
 right to follow all lawful employments." ^ If these general 
 
 1 Austin V. State, 10 Mo. 591. 
 
 2 Cooley on Torts, p. 277. " No proposition is now more firmly settled 
 than that it is one of the fundamental rights and privileges of every 
 American citizen to adopt and follow such lawful industrial nursuits, not 
 
 § 85 
 
196 POLICE EEGULATIONS OF TRADES AND PEOFESSION8. 
 
 constitutional provisions contain the only limitations upon 
 the legislative power to regulate employments, in order to 
 determine what are the specific limitations which these pro- 
 visions impose, it will be necessary to refer to the limita- 
 tions upon the police power in general. 
 
 It has already been determined that, in the exercise of the 
 police power, personal liberty can be subjected to only such 
 restraint as may be necessary to prevent damage to others or 
 to the public.^ Police power, generally, is limited in its 
 
 injurious to the community, as he may see fit. Slaughterhouse Cases, 
 16 Wall. 106; Corfleld v. Coryell, i Wash. C. C. 380; Matter of Jacobs, 
 98 N. T. 98. The term ' liberty,' as protected by the constitution, is not 
 cramped into a mere freedom from physical restraint of the person of the 
 citizen, as by incarceration, but is deemed to embrace the right of man to 
 be free in the enjoyment of the faculties with which he has been endowed 
 by the Creator, subject only to such restraints as are necessary for the 
 common welfare. In the language of Andrews, J., in Bertholf w. 
 O'Rielly (74 N. Y. 516), the right to liberty embraces the right of man 
 ' to exercise his faculties and to follow the lawful avocations for the sup- 
 port of life,' and as expressed by Earl, J., in In re Jacobs (98 N. Y. 98), 
 ' one may be deprived of his liberty, and his constitutional right thereto 
 violated, without the actual restraint of his person. Liberty in Its broad 
 sense, as understood in this country, means the right not only of freedom 
 from servitude, imprisonment or restraint, but the right of one to use his 
 faculties in all lawful ways, to live and work where he will, to earn his 
 livelihood in any lawful calling, and to pursue any lawful trade or avoca- 
 tion.' " People V. Marx, 99 N. Y. 377, 386. "The evidence in favor of 
 the petitioner is abundant and of the highest kind that the article he sells, 
 forbidden by the Missouri statute, is wholesome. It is not so much 
 urged that anything in the constitution of Missouri forbids or limits its 
 power in this respect by express language, as that the exercise of such a 
 power in regard to a property shown to be entirely innocent, incapable 
 of any injurious results or damage to the public health and safety, is an un- 
 warranted invasion of public and private rights, an assumption of power 
 without authority in the natare of our institutions, and an Interference 
 vrith the natural rights of the citizen and the public, which does not come 
 within the province of legislation. The proposition has great force, and 
 in the absence of any presentation of the motives and circumstances 
 which governed the legislature in enacting the law, we should have 
 difficulty in saying it is unsound." Justice Miller, In re John Brosnahan, 
 Jr., 4 McCrary, 1. 
 1 See ante, § 30. 
 § 85 
 
GENERAL PKOPOSITIONS. 197 
 
 exercise to the enforcement of the maxim, sic utere tuo 
 ut alienum non Icedas} 
 
 Whenever jTherefore, the prosecution of a particular call- 
 ing threatens damage to the public or to other individuals, 
 it is a legitimate subject for police regulation to the extent of 
 preventing the evil. It is always within the discretion of the 
 legislature to institute such regulations when the proper case 
 arises, and to determine upon the character of the regulations. 
 But it is a strictly judicial question, whether the trade or 
 calling is of such a nature, as to require or justify policCi 
 regulation. The legislature cannot declare a certain em- 
 ployment to be injurious to the public good, and prohibit 
 it, when, as a matter of fact, it is a harmless occupation. 
 " The position, however, is taken on the part of the State, 
 that it is competent for the legislature, whenever it shall 
 deem proper, to declare the existence of any property and 
 pursuit deemed injurious to the public, nuisances, and to 
 destroy and prohibit them as such ; and that such an action 
 of the legislature is not subject to be reviewed by the courts. 
 We deny this position. We deny that the legislature can 
 enlarge its power over property or pursuits by declaring 
 them nuisances, or by enacting a definition of a nuisance 
 that will cover them. Whatever it has a right by the con- 
 stitution to prohibit or to confiscate, it may thus deal with, 
 without first declaring the matter to be a nuisance ; and 
 whatever it has not a right by the constitution to prohibit 
 and confiscate, it cannot thus deal with, even though it first 
 declare it a nuisance."^ Itis also a judicial question whether 
 the police regulation extends beyond the threatened evil, 
 and prohibits that which involves no threatening danger to 
 the public. If it is unconstitutional to impose police regula- 
 tions upon an innocent calling, it must be likewise uncon- 
 stitutional to place an occupation under police restraint 
 beyond what is necessary to dissipate the threatening evil. 
 
 1 See ante, § 1. 
 
 2 Beebe v. State, 26 Ind. 501. 
 
 § 85 
 
198 POLICE REGULATIONS OF TRADES AND PROPESSpNS. 
 
 The legislature has the choice of means to prevent evil to 
 the public, but the means chosen must not go beyond the 
 prevention of the evil, and prohibit what does not cause the 
 evil. To illustrate, the keeping of a public gambling house 
 is in itself a public evil, and the legislature may place it un- 
 der whatever police control it may see fit, even to the 
 extent of prohibiting the keeping of them. But the pro- 
 fession of medicine is a proper and necessary calling, 
 and if pursued only by men, possessed of skill, instead of 
 threatening public evil, is of the highest value to a commun- 
 ity. The only evil, involved in the prosecution of that 
 calling, is that which arises from the admission of incompe- 
 tent men into the profession. The police regulation of the 
 practice of medicine must, therefore, be confined to the 
 evil, and any prohibition or other restrictive regulation 
 which went beyond the exclusion of ignorant or dishonest 
 men, would be unconstitutional. The police regulation of 
 trades and professions, must, therefore, be limited to such 
 restrictions and limitations as may be necessary to prevent 
 damage to the public or to third persons. Keeping these 
 general rules in mind, we wTn~now consider the various 
 methods of police interference with employments. 
 
 § 86. Prohibition as to certain classes. — A calling may 
 be generally harmless, when prosecuted by some classes of 
 persons, and very harmful when engaged in by others. 
 Thus, for example, it can readily be seen that the keeping 
 of billiard saloons, of bar-rooms, and other public resorts 
 by women, will prove highly injurious to the public morals, 
 while there is no such peculiar danger arising from the 
 keeping of such places by men. A law which prohibited 
 women from engaging in these occupations would be for 
 that reason justifiable under the constitutional limitations.^ 
 
 1 See Blair v. Kilpatrick, 40 Ind. 312, in which it was held that the 
 granting of liquor licenaes to men only, did not violate the constitutional 
 provisions against the granting of special privileges. But under the con- 
 § 86 
 
PROHIBITION AS TO CERTAIN CLASSES. 199 
 
 Regulations have also been sustained, which were designed 
 to prevent men of bad repute from engaging in employments, 
 which from their nature are likely to become public nui- 
 sances, if conducted without safeguards. Thus it has been 
 common, for this reason, to require haekmen, and keepers 
 of places of public resort, to take out a license, and to 
 give security for their good behavior or testimonials of good 
 character. It has also been held that " the State may for- 
 bid certain classes of persons being employed in occupations 
 which their age, sex, or health renders unsuitable for them, 
 -as women and young children are sometimes forbidden to 
 be employed in mines and certain kinds of manufacture."^ 
 In so far as the employment of a certain class in a particular 
 occupation may threaten or inflict damage upon the public 
 or third persons, there can be no doubt as to the constitution- 
 ality of any statute which prohibits their prosecution of that 
 trade. But it is questionable, except in the case of minors, 
 whether the prohibition can rest upon the claim that the 
 employment will prove hurtful to them. Minors are under 
 the guardianship of the State, and their actions can be con- 
 trolled so that they may not injure themselves. But when 
 they have arrived at majority they pass out of the state of 
 tutelage, and stand before the law free from all restraint, 
 -except that which may be necessary to prevent the infliction 
 by them of injury upon others. It may be, and probably 
 is, permissible for the State to prohibit pregnant women 
 
 stitation of California, which provides that no person shall be disqualified 
 by sex from pursuing any lawful vocation, it was held that a similar reg- 
 ulation, excluding females from employment in certain kinds of drinking 
 saloons, was unconstitutional. Hatter of Magutre, 57 Cal. 601 (40 Am. 
 Eep. 125). 
 
 1 Cooley Const. Law, p. 231. In Com. v. Hamilton Manfg. Co., 120 
 Mass. 383, it was held that a statute prohibiting the employment of all 
 persons under eighteen, and of all women in laboring in any manufactur- 
 ing establishment more than 60 hours per week (Mass. Stat. 1874), vio- 
 lates no contract implied in the granting of a charter to any manufacturing 
 company, nor any right reserved under the constitution to any citizen, and 
 may be maintained as a health or police regulation. 
 
 § 86 
 
200 POLICE REGULATIONS OF TRADES AND PROFESSIONS. 
 
 from engaging in certain employments, which would be 
 likely to prove injurious to the unborn child, but there can 
 be no more justification for the prohibition of the prosecu- 
 tion of certain callings by women, because the employment 
 will prove hurtful to themselves, than it would be for the 
 State to prohibit men from working in the manufacture of 
 white lead, because they are apt to contract lead poisoning, 
 or to prohibit occupation in certain parts of iron smelting 
 works, because the lives of the men so engaged are materially 
 shortened. 
 
 § 87. Police regulation of skilled trades and learned 
 professions. — Where the successful prosecution of a call- 
 ing requires a certain amount of technical knowledge and 
 professional skill, and the lack of them in the practitioner 
 will result in material damage to the one who employs him, 
 it is a legitimate exercise of police power to prohibit any 
 one from engaging in the calling who has not previously 
 been examined by the lawfully constituted authority and 
 received a certificate in testimony of his qualification to prac- 
 tice the profession. The right of the State to exercise this 
 control over skilled trades and the learned professions, with 
 a single exception in respect to teachers and expounders of 
 religion, has never been seriously questioned. Thus we find 
 in every State statutes which provide for the examination ' 
 of those who wish to engage in the practice of the law, of 
 medicine and surgery, of pharmacy, and sometimes we find 
 statutes which require all engineers to be examined before 
 they are permitted to take charge of an engine. So, also, 
 in England, it was once made necessary for one to serve an 
 apprenticeship before he was permitted to pursue any one 
 of the skilled trades. That is not now the law in the United 
 States, but there would be no constitutional objection to 
 such a statute, if it were enacted. Judge Cooley says: 
 «' No one has any right to practice law or medicine except 
 under the regulations the State may prescribe. * * * 
 § 87 
 
POLICE EEGULATIONS OF TRADES AND PROFESSIONS. 201 
 
 The privilege may be given to one sex and denied to the 
 other, and other discriminations equally arbitrary may 
 doubtless be established." ^ A distinguished judge of Mis- 
 souri says there can be no doubt "that the legislature ot 
 Missouri can declare the practice of law or medicine an 
 unlawful calling, if they thought fit to do so." ' If the 
 rules heretofore laid down for the determination of the lim- 
 itation of the police control of employments be sustainable, 
 the position of these distinguished judges is untenable. The 
 professions of law and medicine are profitable employments, 
 to the public as well as to the practitioners ; and the only ele- 
 ments of danger arising from the practice of them lies in the 
 admission of incompetent persons into them. Any prohibi- 
 tion which extends further than to prevent the admission of 
 incompetent men will be unconstitutional. It has been held 
 that women can be denied the right to engage in the practice 
 of law.^ In the State court the principal ground for a denial 
 of the plaintiff 's right to engage in the practice of law was 
 maintained to be that, " as a married woman (she) would 
 be bound neither by her express contracts, nor by those 
 implied contracts, which it is the policy of the law to cre- 
 ate between attorney and client." In the Supreme Court 
 of the United States, although the opinion of the court,, 
 delivered by Justice Miller, was rested upon the fact that 
 the practice of law in Illinois was not one of the privilege* 
 and immunities of citizens of the United States as such,, 
 and therefore did not come within the jurisdiction of the 
 court, in a separate opinion by Judge Bradley, in which 
 Judges Field and Swayne concur, it is claimed that the stat- 
 utes of a State may prohibit a woman from practicing law, 
 because on account of the supposed difference in her mental 
 capacity she cannot acquire that degree of skill which the 
 
 > Cooley on Torts, pp. 289, 290. 
 
 * Napton, J., in Austin v. State, 10 Mo. 691. 
 
 8 BradweU v. State, 65 HI. 636; s. c. 16 Wall. 130. 
 
 § 87 
 
202 POLICE REGULATIONS OF TRADES AND PROFESSIONS. 
 
 successful practice of the law requires.^ Of course, a mar- 
 ried woman, under her strict common-law disabilities, can- 
 not make binding contracts, and it would be impossible for 
 her to be sued on any express or implied obligation which 
 she may have incurred in the practice. This no doubt 
 would furnish a justification for a statute which prohibited 
 married women from engaging in the practice of law, pro- 
 vided the disabilities thus imposed by the law are them- 
 selves constitutional.^ But in resi^ect to the inability of 
 woman to attain the standard of professional skill required 
 by the law to insure clients against the ignorant blunderings 
 of attorneys, one is forced to the conclusion that this, like 
 very many other venerable distinctions between the sexes, 
 is the result of sexual prejudice. 
 
 Judge Cooley's position, in respect to the unlimited 
 power of the State to regulate the practice of law and med- 
 icine, is that the practice of these professions is a privilege, 
 and cannot be demanded as a matter of right. I can see no 
 ground upon which this claim may be supported, so far as 
 it refers to medicine. The physician and surgeon derives 
 no peculiar benefit from the State, and there can be no 
 substantial difference between his right to pursue his call- 
 ing and that of a teacher to ply his vocation, or of the mer- 
 
 1 "In the nature of things it is not every citizen of every age, sex, and 
 condition that is qualified for every calling and position. It is the pre- 
 rogative of the legislator to prescribe regulations founded upon nature, 
 reason and experience for the due admission of qualified persons to pro- 
 fessions and callings demanding special skill and confidence. This fairly 
 belongs to the police power of the State; and in my opinion, in view of 
 the peculiar characteristics, destiny and mission of woman, it is within 
 the province of the legislature to ordain what offices, positions, and call- 
 ings shall be filled and discharged by men, and shall receive the benefit 
 of those energies and responsibilities, and that decision and firmness 
 which are presumed to predominate in the sterner sex. For these rea- 
 sons I think that the laws of Illinois now complained of are not obnox- 
 ious to the charge of abridging any of the privileges and immunities of 
 citizens of the United States." Opinion of Justice Bradley, concurred in 
 by JJ. Swayne and Field, in Bradwell v. Illinois, 16 Wall. 142. 
 
 ' As to which see vost, § 162. 
 § 87 
 
POLICE REGULATIONS OF TRADES AND PROFESSIONS. 203 
 
 -chant to engage in business. They are not enjoying any 
 peculiar privilege. Nor can I see any reason for looking 
 upon the practice of law, outside of the courts, as a privi- 
 lege. I cannot see why it is a peculiar privilege, derivable 
 from the State, for an attorney to draw up a deed, or to 
 make a will for a client. But inasmuch as courts are crea- 
 tures of the law, and independently of the State, there can 
 be no courts and no advocates, the right to appear for 
 another in a court of justice may be considered a privilege 
 which may be denied or granted at the pleasure of the 
 State authorities. In England, at an early day, one accused 
 of crime was not allowed to have counsel, and the right to 
 xippear by counsel in any case, rests upon rule of law. Yet 
 even with this concession, it may still be claimed that such 
 a privilege should be granted equally and to all, to avoid 
 the constitutional objection to the granting of unequal or 
 special privileges and immunities.^ 
 
 In respect to the regulation of the practice of medicine, 
 the constitutionality of laws has likewise been questioned.* 
 
 1 The constitutionality of the regulations of the right to practice law 
 has often been questioned. Thus a statute has been held to be unconsti- 
 tutional which required attorneys to take an oath that they have not en- 
 gaged in dueling, as a condition precedent to practicing law. Matter of 
 Dorsey, 7 Port. (Ala.) 293. It had also been held to be unconstitutional 
 for a statute to prohibit one from engaging in the practice of law who 
 Jiad served in the Confederate Army in the war of the rebellion, or to 
 require them to take an oath that they have never taken up arms against 
 the United States. Ex parte Tenney, 2 Duv. (Ky.) 351 ; Ex parte Law, 35 
 Ha.. 285 ; Ex parte Garland, i Wall. SSS ; Cummings v. Missouri, 4 Wall. 277 
 But it is constitutional to require attorneys to take the oath of allegiance 
 to the United States government. Cohen v. Wright, 22 Cal. 293 ; Ex parte 
 Tale, 24 Cal. 241. And in order that he may be disbarred, preci'Se and 
 specific charges of malpractice or unprofessional behavior must be 
 brought against him, and he must have an opportunity to be heard in his 
 ovra defense. States. Watkins, 3 Mo. 480; Matter of Mills, 1 Mich. 392; 
 State V. Start, 7 Iowa, 499; Fisher's Case, 6 Leigh, 619; Withers v. State, 
 36 Ala. 252; Ex parte Percy, 36 N. Y. 651. 
 
 2 By a Massachusetts law it was provided that no one can be permitted 
 to recover by legal process the fees he has earned In the practice of med- 
 icine and surgery, unless he has been licensed by the Massachusetts Med- 
 
 § «7 
 
204 POLICE REGULATIONS OP TRADES AND PROFESSIONS. 
 
 In respect to the clerical profession, the constitutional guaran- 
 ties against encroachments on religious liberty and freedom 
 of worship would be violated, if an attempt were made by 
 the State to determine who shall minister to the spiritual 
 wants of the people. Every individual, and every body of 
 people, have a constitutional right to select their own cler- 
 gymen and expounders of religion, and it can never, under 
 our present constitutions, which ordain a complete separa- 
 tion of church and State, become a matter of State reg- 
 ulation as it is in some of the states of Europe.^ 
 
 § 88. Regulation of practice in the learned pro- 
 fessions. — Not only does the State undertake to prescribe 
 the terms and conditions for the admission of members to the 
 learned professions, so as to exclude dishonest and incompe- 
 tent men, but in some instances laws have been enacted to 
 regulate the practice of the professions. Thus at common 
 law attorneys were prohibited from making contracts 
 with their clients to receive a certain portion of what is 
 recovered in a suit, as compensation for their services. This 
 was called champerty. It is still the law everywhere, in 
 the absence of a repealing statute ; but public opinion, in 
 respect to the character of the offense, has so far changed 
 that the law has become a dead letter, and reputable at- 
 torneys are daily accepting fees, contingent upon the 
 success of the suit, and proportionate to the amount recov- 
 ered in the judgment. It is also a common rule of the court 
 that attorneys will not be allowed to become bail or surety 
 for their clients in a pending suit.^ 
 
 ical Society or was graduated as a doctor of medicine in Harvard Univers- 
 ity : the statute was held to be constitutional. Hewitt v. Charier, 16 Pict. 
 353. So, also, an act of Nevada, providing that graduation from a medi- 
 cal college was necessary to receive a license to practice medicine except 
 in the case of those who have practiced for ten years in that State, was 
 held to be not unconstitutional, because it does not make a similar ex- 
 ception in favor of those who had practiced for the same length of time 
 elsewhere. Ex parte Spinney, 10 Nev. 323. 
 
 1 Cooley on Torts, p. 290; Cooley Const. Law, pp. 231, 233. 
 § 88 
 
REGULATION OF PRACTICE IN LEARNED PROFESSIONS. 205 
 
 In the practice of medicine, an attempt has often 
 been made by the old school of medicine, the school 
 of allopathy, to bring homeopathy into legal disrepute, 
 and to deny to practitioners of that school equal privi- 
 leges before the law ; but the police power of the State 
 can never be exercised in favor of or against any system 
 of medicine. The police power can be brought to bear 
 upon quacks, and disreputable practitioners, to which- 
 ever school they may belong, but when reputable and 
 intelligent members of the profession differ in theories of 
 practice, the State has no power to determine which of 
 them, if either, is wrong. ^ 
 
 In the practice of medicine, however, there are legal regu- 
 lations which the members of the profession are obliged to 
 observe. It is well known that when a death occurs, the 
 physician who has been in attendance upon the deceased is 
 obliged by the law to furnish a certificate, setting forth the 
 causeof death ; thiscertificatebeingrequired, before there can 
 be a burial, without a coroner's inquest. It is also required 
 sometimes of physicians to report to the health officer all 
 •cases of infectious or contagious diseases, which they have 
 in charge. Such regulations are readily justifiable; the 
 first, because the physician's certificate assists in pre- 
 venting the burial of those who have met with a wrongful 
 or violent death ; and the second, because information con- 
 cerning the location of cases of infectious and contagious 
 diseases will enable the health officers to employ safeguards 
 to prevent an epidemic. But it is not quite so clear that 
 the State has the right to require physicians and midwives 
 to report to some officer, within a certain time, all births 
 and deaths which may come under their supervision, sub- 
 ject to a penalty for failing to perform the duty thus re- 
 
 1 Love V. Sheffelln, 7 Ha. 40; Massie o. Mann, 17 Iowa, 131; Miles v. 
 'Clarke, i Bosw. 632; Eyckman v. Coleman, 13 Abb. Pr. 398. But see 
 Jibbott V, Zeigler, 9 Ind. 611. 
 
 ' Bee White v. Carroll, 42 N. T. 161. 
 
 § 88 
 
206 POLICE REGULATIONS OF TRADES AND PROFESSIONS. 
 
 quired of them. This regulation is now becoming quite- 
 common, and the object of it is to facilitate the collec- 
 tion of statistics. In a case before the Supreme Court of 
 Iowa, such a law was sustained as constitutional, and prob- 
 ably the practical utility of the law, and the absence of any 
 excessive burden in requiring this duty of the physician, 
 will in all cases furnish sufficient justification for the enact- 
 ment of the law.^ 
 
 In support of legislation for the prevention of intoxica- 
 tion, it has been held not unreasonable for an ordinance to 
 make it unlawful for a physician to prescribe liquor for a 
 well man.^ As an attempt to evade a law, it is clearly per- 
 missible to prohibit it, and if any question can arise in that 
 connection, it would have reference to the validity of the 
 law whose enforcement is designed to be attained by the 
 ordinance. If it was permissible for the State or town to 
 prohibit the sale of liquor except for medicinal purposes,, 
 it was proper enough for the town or State to prohibit an 
 evasion of the law by means of false prescriptions. 
 
 Although the clerical profession cannot be subjected 
 to police supervision, so far as to determine the character 
 of its personnel, or of the doctrines to be taught, yet, 
 clergymen in the performance of duties, which are collateral 
 to their main duties, and which have a civil phase as well 
 as a religious phase, may be subjected to the regulations of 
 of the State. Thus it is becoming more and more common 
 
 1 " The statute requires the collection of statistics pertaining to the 
 population of the State, and the health of the people, which may impart 
 Information useful in the enactment of laws, and valuable to science and 
 the medical profession, to whom the people look for remedies for disease 
 and for means tending to preserve health. The objects of the statute 
 are within the authority of the State and may be attained in the exercise 
 of its police power. Similar objects are contemplated by statutes requir- 
 ing a census to be periodically taken, the constitutionality of which we 
 have never heard questioned." Robinson v. Hamilton, 60 Iowa, 134 (4fr 
 Am. Eep. 63). 
 
 2 Carthage v. Buckner, 4 III. App. 317. 
 
 § 88 
 
REGULATION OF SALE OF AETICLES OF MEECHANDISE. 207 
 
 for State laws to prohibit the solemnization of marriages 
 unless the parties have previously received a marriage license 
 from some civil officer, and requiring the clergyman to re- 
 turn the license, with a certificate from himself, announcing 
 the day of the marriage. Marriage is a civil status, as well 
 as a religious institution, and the two are so intimately 
 blended that its regulation by the State in its former charac- 
 ter controls its regulation by the church. 
 
 § 89. Kegulation of sale of certain articles of mer- 
 cbandise. — The regulations, which would fall under this 
 heading, are very numerous, and most of them are free 
 from all doubt in respect to their validity under our con- 
 stitutional limitations. They are instituted either for the 
 purpose of preventing injury to the public, or thwarting 
 all attempts of the vendor to defraud the vendee. 
 
 A regulation, whatever may be its chai'acter, which is 
 instituted for the purpose of preventing injury to the pub- 
 lic, and which does tend to furnish the desired protection, 
 is clearly constitutional. A good example of this class of 
 regulations, would be the Kentuclsy statute, which is also 
 found jn other States, providing for the inspection of kero- 
 sene and other oils, with a view to prohibit the sale of such 
 as ignite below a certain degree of heat. Such a law is a 
 plain and reasonable exercise of the police power of the 
 State.^ So would be any law, providing for the inspection 
 of fresh meat, and other provisions, in order that the public 
 welfare may be protected from the danger, arising from the 
 consumption of unwholesome food. 
 
 But where there is no danger of injury to the public, it 
 is difficult to determine how far the State may by its police 
 regulations attempt to protect private individuals against 
 each other's frauds. A fraud is, of course, a trespass upon 
 another's private rights, and can always be punished, when 
 
 1 Patterson w. Kentucky, 97 U. S. 601. 
 
 § 89 
 
208 POLICE REGULATIONS OF TEADE8 AND PEOFE8SIONS. 
 
 committed. It is therefore but rational to suppose that the 
 State may institute any reasonable preventive remedy, 
 when the frequency of the frauds, or the diflSculty experi- 
 enced in circumventing them, is so great that no other 
 means will prove efficacious. ' Where, therefore, police regu- 
 lations are established, which give to private parties in- 
 creased facilities for detecting and preventing fraud, as a 
 general proposition, these laws are free from all constitu- 
 tional objections. Laws, which provide for the inspection 
 and grading of flour, the inspection of tobacco,* the in- 
 spection and regulation of weights and measures,* the reg- 
 ulation of weight of bread,' requiring all lumber to be 
 surveyed, by a public surveyor,* providing for the weigh- 
 ing of coal and other articles of heavy bulk on the public 
 scales," are constitutional exercises of police power, so far 
 as they permit one party to compel the other to comply 
 with the regulation, in the absence of their agreement to 
 the contrary. For example, it is permissible for a statutory 
 regulation to provide for standard weights and measures, 
 and to compel their use, when the parties have not agreed 
 upon the use of others. But it cannot be reasonable to 
 prohibit the use of any other mode of measurement.* It 
 is an excessive exercise of police power, when the law com- 
 pels one to make use of the means provided for his own 
 protection against fraud. The same distinction would ap- 
 ply to regulations, requiring the inspection and weighing of 
 articles of merchandise by the inspector and weigher, and 
 charging a certain fee for the same, even when the parties 
 have agreed in good faith to waive the compliance with the 
 regulation. There is only one ground, upon which this fea- 
 
 ' Turner v. Maryland, 107 U. S. 38 (22 Am. Law Reg. N. S. 198, note.) 
 ' Ritchie v. Boynton, 114 Mass. 431; Eaton v. Keegan, 114 Mass. 433; 
 Durgin v. Dyer, 68 Me. 143; Woods v. Armstrong, 34 Ala. 150. 
 ' Mobile V. Tuille, 3 Ala. (n. s.) 140. 
 
 * Pierce v. Kimball, 9 Me. 54 (23 Am. Dec. 537). 
 ' City Council o. Rogers, 2 McCord, 495. 
 
 • See Eaton v. Eeegan, 114 Mass. 433. 
 
 § 89 
 
REGULATION OF SALE OF ARTICLES OF MERCHANDISE. 209 
 
 "ture of such laws may be justified; and that is, to insure 
 the State against the expense of maintaining a public in- 
 spection, and the provision will fall under the head of ex- 
 ceptional burdens or special taxation, which in some of the 
 States is prohibited. But the authorities do not support 
 this view of such regulations. The regulation is in most 
 •cases made absolute, and the observance of it is obligatory 
 upon all. Thus it has been held that a city ordinance may 
 require hay or coal to be weighed by city weighers.^ Of 
 the same character, is the New York law, which provides 
 that the sale of oleomargarine, or other product resembling 
 butter, shall be prohibited, unless the box or other recepta- 
 cle, in which it is kept, shall have the true name of the article 
 plainly stamped upon it. The object of the law is the pre- 
 vention of fraud, and is a reasonable police regulation. Of 
 a similar character is the law, which provides that druggists 
 must, in the sale of all poisons, have upon the label of each 
 package the word " Poison " printed in clear type, the 
 name of the poison and a statement of the ordinary anti- 
 ■dotes. The regulation is a reasonable and justifiable one, 
 and works no peculiar hardship upon the pharmacist. But 
 the regulation of the sale of poison assumes an interesting 
 -and peculiar form, when it is extended, as it is in some of 
 the States, to a requirement, that the druggist must keep a 
 register of the poisons sold, and the names of purchasers. 
 Probably a double purpose is intended in the enforcement 
 of this regulation, viz. : the prevention of suicide by check- 
 ing the purchase of poison for such a purpose, and the 
 prevention of homicide by poison, by facilitating the con- 
 viction in furnishing evidence of the purchase of poison. It 
 is probable that the law is easily sustainable on either ground. 
 While the common-law rule making suicide a crime and 
 providing a certain punishment, may be open to serious 
 
 1 Stokes V. New York, 14 Wend. 87; Yates v. Milwaukee, 12 Wis. 
 €73. 
 
 14 § 89 
 
210 POLICE REGULATIONS OF TRADES AND PROFESSIONS. 
 
 constitutional objections,^ it is reasonable to suppose a man, 
 who commits suicide, to be sufficiently insane to justify 
 State interference, in order to prevent his infliction of bodily 
 injury upon himself.^ 
 
 § 90. Legal tender and regulation of currency. — Al- 
 though Sociologists, like Herbert Spencer, may doubt the 
 necessity, and condemn the practice, of the regulation of 
 currency by the government ; and although the private coin- 
 ing of money may be permitted without any detriment to 
 the public interests, arising from the general debasement 
 of the coin : no constitutional question can arise in respect 
 to the exclusive exercise by government of the power to- 
 coin money in the United States ; for the United States 
 constitution gives to the national government this exclu- 
 sive right.' But apart from any special constitutional 
 provision, and on general principles of constitutional law, 
 this phase of police power may be justified on the plea of 
 public necessity. The most devoted disciple of the laisse^ 
 /aire doctrine will admit that so delicate a matter as the 
 determination of the standard value of the current coin cu,n 
 only be obtained by governmental regulation. In the 
 colonial days, and in the days of the confederation, one of 
 the greatest evils, and the in most serious obstacle to com- 
 mercial intercourse between the States, was the almost end- 
 less variety of coin that passed current in different places, 
 and the difficulty was increased by the employment of the 
 same names to denote, in different places, coins of different 
 values. If the States and colonies could not, without the 
 interference of the general governorent, procure for them- 
 
 1 See ante, § 10. 
 
 ■' On the other hand it has been held to be unconstitutional to require 
 druggists to furnish the names of parties to whom he sells liquor. Clin- 
 ton V. Phillips, 58 111. 102 (11 Am. Hep. 52). 
 
 ' See U. S. Const., art. I., § 8, in which it is provided that Con- 
 gress shall have power " to coin money, regulate the value thereof, and 
 of foreign coin." 
 § 90 
 
LEGAL TENDER AND REGULATION OF CURRENCY. 211 
 
 selves coin of uniform value, it would be still more difScuIt 
 for the commercial world to attain the same end. The 
 only safe course is to vest in the Supreme Power — in this 
 country, in the United States government — the exclusive 
 control of the coin. 
 
 The necessity for a public coinage may not be so great 
 as the State regulation of the value of the coins, but the 
 danger of a general debasement of the coin, and the great 
 possibilities of committing fraud upon persons who gener- 
 ally would not have the means at hand for detecting the 
 fraud, would be a sufficient justification of the denial to 
 private individuals of the right to coin money. 
 
 As already stated, in respect to the exclusive power of 
 the United States, to coin money and to regulate the value 
 thereof, no doubt can arise. But grave difficulties are met 
 with, in determining the limitations upon the power of 
 the government to declare what shall be a legal tender in 
 the payment of debts. In fact, the governmental power to 
 coin money is mainly incidental to the regulation of the 
 matter of legal tender. Of course, the power to facilitate 
 exchange by the creation of an ample currency does not 
 necessarily involve the creation of legal tender. For ex- 
 ample, national bank notes are currency, but they are not. 
 legal tender. But the need of a determination by law,, 
 what shall constitute a legal tender for the payment of debts,, 
 led inevitably to the demand for the creation of a sufficient 
 quantity of the things, called money, which are required by 
 law to be tendered in payment of debts. I do not mean 
 to say that the demand for a legal tender preceded, in point 
 of historical sequence, the need of a currency. But from, 
 the standpoint of police power, the necessity of a legal 
 tender requires a regulation of the currency of the govern- 
 ment, instead of the latter bearing the relation of cause to. 
 the former. 
 
 Now, what can government declare to be a legal tender? 
 There can be no doubt that the government has the power 
 
 « 90 
 
212 POLICE REGULATIONS OF TRADES AND PROFESSIONS. 
 
 to declare its own coin to be legal tender. And it may, no 
 doubt, provide that certain foreign coin shall be legal tender 
 at their real value, as estimated by Congress ; nor can it be 
 doubted that the several States have no right to declare any- 
 thing else but gold and silver to be a legal tender.^ But it is 
 not an easy matter to determine the limitations of the power 
 of the United States government, in the matter of legal 
 tender. The question has assumed a practical form by the 
 enactment of laws by Congress, in 1862, 1863, and 1878, 
 declaring the treasury notes of the United States to be 
 legal tender in payment of all debts, public and private. 
 The acts of 1862 and 1863 were passed when the country 
 was rent in twain by a gigantic civil war, which threatened 
 the existence of the Union ; and they were prompted by the 
 desire to force the notes into circulation, and procure funds 
 and materials for the prosecution of the war. In reporting 
 the first act to the Senate, the chairman of the committee on 
 finance (Sumner) said : " It is put on the ground of absolute, 
 overwhelming necessity ; that the government has now ar. 
 rived at that point when it must have funds, and those 
 funds are not to be obtained from ordinary sources, or 
 from any of the expedients to which we have heretofore 
 had recourse, and therefore, this new, anomalous and re- 
 markable provision must be resorted to in order to enable 
 the government to pay off the debt that it now owes, and 
 afEord circulation which will be available for other pur- 
 poses." ^ In other words, in order to furnish the govern- 
 ment with the means, which the exigencies of war de- 
 manded, Congress made use of a power which is possessed 
 by the government for promoting the welfare of the com- 
 mercial world, by providing a uniform mode of settlement 
 of debts. The establishment of a legal tender has for its 
 object the bestowal of benefits upon the private interests of 
 
 1 See art. I., § 10. 
 
 » Cong. Globe, 1861-2, Part 1., 764. 
 § 90 
 
LEGAL TENDER AND REGULATION OF CURRENCY. 213 
 
 individuals, and was not intended to be a source of reve- 
 nue. It cannot be doubted that this is the real object of a 
 legal tender. The question then arises, can Congress em- 
 ploy this power for the purpose of increasing the revenue. 
 The question has been before the United States Supreme 
 Court several times. In the first case,^ the acts of 1862-63, 
 were declared to be unconstitutional in so far as they make 
 the treasury notes of the United States legal tender in pay- 
 ment of existing debts. In the Legal Tender Cases,* the 
 opinion of the court in Hepburn v. Griswold, was over- 
 ruled, and the acts of 1862 and 1863, in making the treas- 
 ury notes legal tender, were declared to be constitutional, 
 whether they applied to existing or subsequent debts, the 
 burden of the opinion being that Congress had the right, as 
 a war measure, to give to these notes the character of legal 
 tender. In 1878, Congress passed an act, providing for the 
 re-issue of the treasury notes, and declared them to be legal 
 tender in payment of all public and private debts. In a 
 case, arising under the act of 1878, the Supreme Court has 
 finally affirmed the opinion set forth in 12 Wallace, and held 
 further, that, the power of the government to make the 
 treasury notes legal tender, when the public exigencies re- 
 quired, being admitted, it becomes a question of legislative 
 discretion, when the public welfare demands the exercise of 
 the power.^ This decision will probably constitute the final 
 adjudication of this question ; and while it must be consid- 
 ered as settled, at least for the present, that the United 
 States has the power to make its treasury notes legal ten- 
 der, it is but proper that, in a work on police power, the 
 rule of the court should be criticised and tested by the ap- 
 plication of the ordinary rules of constitutional law. The 
 decision is so important, that full extracts from the opinion 
 
 1 Hepburn v. Griswold, 8 Wall. 603. 
 
 » 12 Wall. 457. 
 
 » JulUard v. Greenman, 110 U. S. 421. 
 
 § 90 
 
214 POLICE REGULATIONS OF TRADES AND PROFESSIONS. 
 
 of the court, and the dissenting opinion of Justice Field, 
 have been inserted in the note below.^ 
 
 1 " By the Constitution of the United States, the several States are pro- 
 hibited from coining money, emitting bills of credit, or maldng anything 
 but gold and silver coin a tender in payment of debts. But no intention 
 can be inferred from this to deny to Congress either of these powers. 
 Most of the powers granted to Congress are described in the eighth sec- 
 tion of the first article; the limitations intended to be set to Its powers, 
 so as to exclude certain things which might be taken to be included in the 
 ninth section; the tenth section is addressed to the States only. This 
 section prohibits the States from doing some things which the United 
 States are expressly prohibited from doing, as well as from doing some 
 things the United States are expressly authorized to do, and from doing 
 some things neither expressly granted nor expressly denied to the United 
 States. Congress and the States equally are expressly prohibited from 
 passing any bUl of attainder, or expostfactoHw, or granting any title of 
 nobility. The States are forbidden, while the President and Senate are 
 expressly authorized, to make treaties. The States are forbidden, but 
 Congress is expressly authorized, to coin money. The States are pro- 
 hibited from emitting bills of credit; but Congress, which is neither ex- 
 pressly authorized nor expressly forbidden to do so, has, as we have 
 already seen, been held to have the power of emitting bills of credit, and 
 of making every provision for their circulation as currency, short of giv- 
 ing them the quality of legal lender for private debts — even by those 
 who have denied its authority to give them this quality. 
 
 " It appears to us to follow, as a logical and necessary consequence, 
 that Congress has the power to issue the obligations of the United States 
 in such form, and to impress upon them such qualities as currency for 
 the purchase of merchandise, and the payment of debts, as accords with 
 the usage of sovereign governments. The power, as Incident to the 
 power of borrowing money and issuing bills or notes of the government 
 for money borrowed, of impressing upon those bills or notes the quality 
 of being a legal tender for the payment of private debts, was a power 
 universally understood to belong to sovereignty, in Europe and America, 
 at the time of the framing and adoption of the constitution of the United 
 States. The governments of Europe, acting through the monarch or the 
 legislature, accordlngto the distribution of powers under their respective 
 constitutions, had and have as sovereign a power of issuing paper money 
 as of stamping coin. * * * The power of Issuing bills of credit, and 
 making them, at the discretion of the legislature, a tender in payment of 
 private debts, had long been exercised in this country by the several 
 colonies and States; and during the Eevolutionary war the States upon 
 the recommendation of the congress of the confederation, had made the 
 bills issued by Congress a legal tender. See Craig v. Missouri, i Pet, 
 36, 453; Briscoe v. Bank of Kentucky, 11 Pet. 267, 313, 334, 836; Legal 
 § 90 
 
LEGAL TENDER AND ilEGULATlON OF CURRENCY. 215 
 
 A perusal of the decisions in these leading cases will dis- 
 close the fact that the members of the courts, and the 
 attorneys in the causes, have not referred to the same con- 
 stitutional provision for the authority to make the treasury 
 
 Tender Cases, 12 Wall. 557, 658, 622. The exercise of this power not 
 being prohibited to Congress by the constitution, it is included in the 
 power expressly granted to borrow money on the credit of the United 
 States. 
 
 " This position is fortified by the fact that Congress is vested with the 
 •exclusive exercise of the analogous power of coining money, and regu- 
 lating the value of domestic and foreign coin, and also, with the para- 
 mount power of regulating foreign and inter-state commerce, tinder 
 the power to borrow money on the credit of the United States, and to 
 issue circulating notes for the money borrowed, its power to define the 
 <juality and force of those notes as currency is as broad as the like power 
 over a metallic currency under the power to coin money, and to regulate 
 the value thereof. Under the two powers, taken together, Congress is 
 authorized to establish a national currency, either in coin or in paper, 
 and to make that currency lawful money for all purposes, as regards the 
 national government or private individuals. 
 
 " The power of making the notes of the United States a legal tender in 
 payment of private debts, being included in the power to borrow money 
 and to provide a national currency, is not defeated or restricted by the 
 fact that its exercise may affect the value of private contracts. If, upon 
 a just and fair interpretation of the whole constitution, a particular power 
 ■or authority appears to be vested in Congress, it is no constitutional ob- 
 jection to its existence, or to its exercise, that the property or the con- 
 tracts of individuals may be incidentally affected." * * * " So, under 
 the power to coin money and to regulate its value, Congress may (as it 
 did with regard to gold by the act of June 28, 1834, ch. 95, and with re- 
 gard to silver, by act of Feb. 28, 1878, ch. 20) issue coins of the same 
 denominations as those already current by law, but of less intrinsic 
 value than those, by reason of containing a less weight of the precious 
 metals,'and thereby enable debtors to discharge their debts by the payment 
 of coins of less than the real value. A contract to pay a certain sum in 
 money, without any stipulation as to the kind of money in which it shall 
 be paid, may always be satisfied by payment of that sum in any currency 
 which is lawful money at the place and time at which payment is to be 
 made. 1 Hale P. C. 192, 194; Bac. Abr., Tender, B. 2; Pothier, Contract 
 of Sale, No. 416; Pardessus, Droit Commercial, No. 204, 205; Searight, 
 t) Calbraith, 4Dall. 324. As observed by Mr. Justice Strong, in deliver- 
 ing the opinion of the court In the Legal Tender Cases, ' every contract for 
 the payment of money, simply, is necessarily subject to the constitutional 
 power of the government over the currency, whatever that power may 
 
 § 90 
 
216 POLICE REGULATIONS OF TKADES AND PEOFESSIONS. 
 
 notes legal tender. Some have claimed it to be a power,, 
 implied from the power to levy and carry on war, others 
 refer it to the power to borrow money, etc. If the- 
 power to make the treasury notes legal tender cannot be 
 
 be, and the obligation of the parties is, therefore, assumed with reference, 
 to that power.' 
 
 " Congress, as the legislature of a sovereign nation, being expressly 
 empowered by the Constitution ' to lay and collect taxes, to pay the debts 
 and provide for the common defense and general welfare of the TTnited' 
 States,' and ' to borrow money on the credit of the United States,' and 
 'to coin money and regulate the value thereof and of foreign coin; ' and 
 being clearly authorized, as incidental to the exercise of those great 
 powers, to emit bills of credit, to charter national banks, and to provide 
 a national currency for the whole people, in the form of coin, treasury 
 notes and national bank bills ; and the power to make the notes of the 
 government a legal tender in payment of private debts being one of the 
 powers belonging to sovereignty in other civilized nations, and not ex- 
 pressly withheld from Congress by the constitution ; we are irresistibly 
 impelled to the conclusion that the impressing upon the treasury notes of 
 the United States the quality of being a legal tender in payment 
 of private debts is an appropriate means, conducive and plainly 
 adapted to the execution of the undoubted powers of Congress, con- 
 sistent with the letter and spirit of the constitution, and, therefore, 
 within the meaning of that instrument, ' necessary and proper for carry- 
 ing into execution the powers vested by this constitution in the govern- 
 ment of the United States.' 
 
 " Such being our conclusion in matter of law, the question whether at 
 any particular time, in war or in peace, the exigency is such, by reason of 
 unusual and pressing demands on the resources of the government, or of 
 the inadequacy of the supply of gold and silver coin to furnish the cur- 
 rency needed for the uses of the government and of the people, that it is, 
 as matter of fact, wise and expedient to resort to this measure is a poli- 
 tical question, to be determined by Congress when the question of exi- 
 gency arises, and not a judicial question, to be afterwards passed upon 
 by the courts." Opinion of court by J. Gray, in Juillard v. Greenman, 
 110 U. S. 421. 
 
 " It must be evident, however, upon reflection, that if there were any 
 power in the government of the United States to impart the quality of 
 legal tender to its promissory notes, it was for Congress to determine 
 when the necessity for its exercise existed ; that war merely Increased the 
 urgency for money; it did not add to the powers of the government nor 
 change their nature ; that if the power exists it might be equally exer- 
 cised when a loan was made to meet ordinary expenses in time of peace, 
 as when vast sums were needed to support an army or navy in time of 
 § 90 
 
LEGAL TENDER AND REGULATION OF CURRENCY. 217 
 
 shown to be prohibited by the United States constitution, 
 then there would be very little difficulty in determining the 
 power of the government in the premises. The power to 
 
 war. The wants of the government could never be the measure of its 
 powers. But in the excitement and apprehensions of the war these con- 
 siderations were unheeded ; the measure was passed as one of overruling 
 necessity in a perilous crisis of the country. Now, it is no longer advo- 
 cated as one of necessity, but as one that may be adopted at any time. 
 Never before was it contended by any jurist or commentator on the con- 
 stitution that the government, in full receipt of ample income, with a 
 treasury overflowing, with more money on hand than it knows what to do 
 with, could issue paper money as a legal tender. What was In 1862 
 called 'the medicine of the constitution' [by SumnerJ, has now become 
 its daily bread. So it always happens that whenever a wrong principle 
 of conduct, political or personal, is adopted on the plea of necessity, it 
 will afterwards be followed on a plea of convenience. 
 
 " The advocates of the measure have not been consistent in the desig- 
 nation of the power upon which they have supported its validity, some 
 placing it on the power to borrow money, some on the coiaing power; 
 and some have claimed it as an incident to the general powers of the 
 government. In the present case it is placed by the court upon the 
 power to borrow money, and the alleged sovereignty of the United States 
 over the currency. It is assumed that this power, when exercised by 
 the government, is something different from what it is when exercised 
 by corporations or individuals, and that the government has, by the 
 legal tender provision, the power to enforce loans of 'money because the 
 sovereign governments of European countries have claimed and exercised 
 such power. 
 
 * * * " As to the terms to borrow money, where, I would ask, does the 
 court find any authority for giving to them a different interpretation in 
 the constitution from what they receive, when used in other instruments, 
 as in the charters of municipal bodies or of private corporations, or in 
 the contracts of individuals? They are not ambiguous; they have a 
 well-settled meaning in other instruments. If the courts may change 
 that in the constitution, so it may the meaning of all other clauses ; 
 and the powers which the government may exercise will be found 
 declared, not by plain words in the organic law, but by words of a new 
 significance resting in the minds of the judges. Until some authority be- 
 yond the alleged claim and practice of the sovereign governments of 
 Europe be produced, I must believe that the terms have the same meau- 
 ing in all instruments wherever they are used ; that they mean a power 
 only to contract for a loan of money, upon considerations to be agreed 
 upon between the parties. The conditions of the loan, or whether any 
 particular security shall be given to the lenders, are matters of arrange- 
 
 § 90 
 
218 POLICE EEGULATIONS OF TRADES AND PROFESSIONS. 
 
 make and regulate legal tender being denied by the United 
 States constitution to the States, the power must be exer- 
 cised, if at all, by the United States government ; and the 
 
 ment between the parties, they do not concern any one else. They do 
 not Imply that the borrower can give to his promise to refund the money, 
 any security to the lender outside of the property or rights which he pos- 
 sesses. The transaction is completed when the lender parts with his 
 money, and the borrower gives his promise to pay at the time and in the 
 manner and with the securities agreed upon. Whatever stipulations may 
 be made to add to the value of the promises or to secure its fulfilment, 
 must necssarily be limited to the property rights and privileges which 
 the borrower possesses. Whether he can add to his promises auy ele. 
 ment which will induce others to receive them beyond the security which 
 he gives for their payment, depends upon his promise to control such 
 element. If he has a right to put a limitation upon the use of other 
 persons' property, or to enforce an exaction of some benefit from them, 
 he may give such privilege to the lender; but if he has no right thus to 
 interfere with the property or possessions of others, of course he can give 
 none. It will hardly be pretended that the government of the United 
 States has any power to enter into any engagement that, as security for its 
 notes, the lender shall have special privileges with respect to the visible 
 property of others, shall be able to occupy a portion of their labds or their 
 houses, and thus interfere with the possession and use of their property. 
 If the government cannot do that, how can it step in and say, as a condi- 
 tion of loaning money, that the lender shall have a right to interfere with 
 contracts between private parties? A large proportion of the property 
 of the world exists in contracts and the government has no more right 
 to deprive one of their value by legislation operating directly upon them 
 than it has a right to deprive one of the value of any visible and taxable " 
 property. 
 
 " No one, I think, will pretend that individuals or corporations 
 possess the power to impart to their evidences of indebtedness any 
 quality by which the holder will be able to affect the contracts of other 
 parties, strangers to the loan ; nor would anyone pretend that congress 
 possesses the power to impart any one quality to the notes of the United 
 States, except from the clause authorizing it to make laws necessary and 
 proper to the execution of its powers. That clause, however, does not 
 enlarge the expressly designated powers; it merely states what Coagreas 
 could have done without its insertion in the constitution. Without it 
 Congress could have adopted any appropriate means to borrow; but that 
 can only be appropriate for that purpose which has some relation of 
 fitness to the end, which has respect to the terms essential to the con- 
 tract, or to the securities which the borrower may furnish for the repay- 
 ment of the loan. The quality of legal tender does not touch the terms of 
 § 90 
 
LEGAL TENDER AND REGULATION OF CURRENCY. 219 
 
 TTnited States government can exercise it, if the power is not 
 prohibited by the constitution altogether, even though it is 
 not expressly or impliedly delegated tothe general govern- 
 
 the contract; that is complete without it; nor does it stand as a security 
 for the loan, for a security is a thing pledged, over which the borrower 
 has some control, or in which he holds some interest. 
 
 " The argument presented by the advocates of legal tender is, in sub- 
 stance this : The object of borrowing is to raise funds, the addition of the 
 quality of legal tender to the notes of the government will induce parties 
 to take them, and funds will thereby be more readily loaned. But the same 
 thing may be said of the addition of any other quality which would give 
 to the holder of the notes some advantage over the property of others, as 
 for instance, that the notes should serve as a pass on the public convey- 
 ances of the country, or as a ticket to places of amusement, or should 
 exempt his property from State and municipal taxation or entitle him to 
 the free use of the telegraph lines, or to a percentage from the revenues 
 of private corporations. The same consequence, a ready acceptance of the 
 notes, would follow; and yet no one would pretend that the addition of 
 privileges of this kind with respect to the property of others, over which 
 the borrower has no control, would be in any sense an appropriate 
 measure to the execution of the power to borrow. 
 
 " * * * The power vested in Congress to coin money does not in my 
 judgment fortify the position of the court as its opinion affirms. So far 
 from deducing from that power any authority to impress the notes of the 
 government with the quality of legal tender, its existence seems to me in- 
 consistent with a power to make anything but coin a legal tender. The 
 meaning of the terms ' to coin money ' is not at all doubtful. It is to 
 mould metallic substance into forms convenient for circulation and to 
 stamp them with the impress of government authority indicating their 
 "value with reference to the unit of value established by law. Coins are 
 pieces of metal of definite weight and value, stamped such by the au- 
 thority of the government. 
 
 " * * * The clause to coin money must be read in connection with 
 the prohibition upon the States to make anything but gold and silver 
 coin a tender in payment of debts. The two taken together clearly show 
 that the coins to be fabricated under the authority of the general govern" 
 ment, and as such to be a legal tender for debts, are to be composed 
 principally, if not entirely, of the metals of gold and silver. Coins of 
 such metals are necessarily a legal tender to the amount of their respec- 
 tive values without any legislative enactment, and the statutes of the 
 TJnited States providing that they shall be such tender is only declaratory 
 of their effect when offered in payment. When the constitution says, 
 therefore, that Congress shall have the power to coin money, interpret- 
 ing that clause with the prohibition upon the States, it says it shall have 
 
 § 90 
 
220 POLICE REGULATIONS OP TRADES AND PROFESSIONS. 
 
 ment, at least if the position elsewhere taken ^ in respect to 
 the powers of the United States be correct. 
 
 But it is my opinion that, while the constitution of the 
 United States does not prohibit Congress from making any- 
 other coins, than gold and silver, legal tender, it does prohibit 
 it from giving the character of legal tender to the United 
 States treasury notes, or to anything else, which does not 
 have and pass for, its intrinsic value. When gold or silver, 
 or any other article of value is coined and is made a legal 
 tender for the payment of all debts, at its true value, it is 
 a very reasonable exercise of police power ; for no one is 
 deprived of his property against his will and without due pro- 
 cess of law. It is merely a determination by law what coin 
 is genuine, and which, therefore, was bargained for, by the 
 parties to the contract. And when the value of the metal 
 is inclined to be slightly variable from time to time, as in 
 the case of silver, relative to gold, the establishment of a 
 uniform value, when justly made, is likewise no unreasonable 
 regulation. But if a money of a given denomination should 
 
 the 'power to make coins of the precious metals a legal tender, for that 
 alone which Is money can be a legal tender. If this be the true import 
 of the language, nothing else can be made a legal tender. We all know 
 that the value of the notes of the government in the market, and in the 
 commercial world generally, depends upon their convertibility on de- 
 mand into coin; and as confidence In such convertibility increases or 
 diminishes, so does the exchangeable value of the notes vary. So far 
 from becoming themselves standard of value by reason of the legislative 
 declaration to that effect, their own value is measured by the facility with 
 which they can be exchanged into that which alone is regarded as money 
 by the commercial world. They are promises of money, but they are not 
 money in the sense of the constitution. * * * jjow, to coin money 
 is, as I have said, to make coins out of metallic substances, and the only 
 money the value of which Congress can regulate is coined money, either 
 of our mints or of foreign countries. It should seem, therefore, that to 
 borrow money is to obtain a loan of coined money, that is, money com- 
 posed of precious metals, representing value in the purchase of property 
 and payment of debts.' " Dissenting opinion of J. Field in JuUlard v. 
 Greenman, supra. 
 1 See post, § 200. 
 
 § 90 
 
LEGAL TENDKR AND REGULATION OF CURRENCY. 221 
 
 1)6 coined, of less value than existing coins of the same de- 
 nomination, and the people were required to take them at 
 their nominal value, it would be a fraud upon the people, 
 and I can see no reason why such a law should uot be de- 
 clared unconstitutional. Congress has full power to change 
 the value of coins from time to time, but no law is constitu- 
 tional which compels the creditor of existing debts to re- 
 ceive these coins of less value, when the parties contemplated 
 payment in the older coins of a higher value, but of the 
 same denomination. If Congress should coin a dollar in 
 gold or silver, whose intrinsic value was only eighty-five 
 cents in existing coin, no law can compel its acceptance as 
 equivalent to a dollar, worth one hundred cents. The en- 
 forcement of such a law would deprive creditors of fifteen 
 per cent of their loans, without due process of laws, and 
 hence in violation of the constitution of the United States. 
 Mr. Justice Gray says in Juillard v. Greenman,^ that such 
 a law would not infringe any constitutional limitation, but 
 it seems to me to be a plain violation of the constitutional 
 provision, that " no man shall be deprived of his life, liberty 
 or property, without due process of law." 
 
 " Undoubtedly Congress has power to alter the value of 
 coins issued, either by increasing or diminishing the alloy 
 they contain ; so it may alter at its pleasure their denomin- 
 ations ; it may hereafter call a dollar an eagle, and it may 
 call an eagle a dollar. But if it be intended to assert that 
 dongress may make the coins changed the equivalent of 
 those having a greater value in their previous condition, 
 and compel parties contracting for the latter to receive 
 coins with diminished value, I must be permitted to deny 
 any such authority. Any such declaration on its part 
 would be not only inoperative in fact but a shameful disre- 
 gard of its constitutional duty. As I said on a former 
 occasion : ' The power to coin money as declared by this 
 
 1 110 U. S. 449. 
 
 § 90 
 
222 POLICE REGULATIONS OF TRADES AND PROFESSIONS. 
 
 court is a great trust devolved upon Congress, carrying- 
 with it the duty of creating and maintaining a uniform 
 standard of value throughout the Union, and it would be a 
 manifest abuse of the trust to give to the coins issued by its 
 authority any other than their real value. By debas- 
 ing the coins, when once the standard is fixed, is meant 
 giving to the coins by their form and impress a certificate 
 of their having a relation to that standard diflBrent from 
 that which, in truth, they possess; in other words, giving 
 to the coins a false certificate of their value." ^ But even 
 in such a case, where a contract stipulates for the payment 
 of lawful money, and the law should subsequently alter the 
 value of the coin, so that the lawful money in use, when the- 
 contract is to be performed, is of less intrinsic value ; and by 
 construction of law the contract is supposed to refer to 
 what is lawful money at the time of performance ; there still 
 may not be any absolutely arbitrary deprivation of private 
 property. But when the government undertakes to make 
 its own notes legal tender, a thing which has no intrinsic 
 value, whose value as currency depends upon the public 
 credit of the government, and rises and falls with it ; instead 
 of its being the reasonable exercise of a police regulation, 
 the object of which is to facilitate exchange, and provide a 
 satisfactory legal settlement of private obligations by pro- 
 viding a uniform currency of recognized value, it is an arbi- ^ 
 trary taking of private property, compelling private 
 individuals to become creditors of the government against 
 their will. 
 
 Making the treasury notes legal tender is not induced by 
 any desire to provide an easy method of making legal set- 
 tlements of obligations, the only legitimate object of 
 establishing a legal tender of any kind, but for the purpose 
 of increasing the revenue of the government. The Su- 
 
 ' Dissenting opinion of Justice Field in Juillard v. Greenman, 110 U.. 
 V. 465. 
 
 5 90 
 
LEGAL TENDER AND REGULATION OF CURRENCY. 223 
 
 preme Court, in the opinion of Justice Gray, freely acknowl- 
 edge this to be the purpose, and justify the exercise of the 
 power, by claiming it to be implied from the power to 
 borrow money. This clearly is unjustifiable under any 
 known rules of constitutional construction. The acts of 
 1862, and 1863, were justified as war measures, on the plea 
 of necessity. It may be that the government of a country 
 in a state of war, when its very existence is threatened, may 
 compel its citizens to become creditors of the government. 
 It may issue its treasury notes, and compel the creditors of 
 the government of all classes to receive its notes in pay- 
 ment of its debts. It may, possibly, appropriate to its own 
 use the materials necessary for the prosecution of the war, 
 paying for them at their market value in its treasury 
 notes. It may compel the citizens to serve in its land and 
 naval forces, and be paid for their services in treasury notes. 
 But it is difficult to see how it facilitates the borrowing of 
 money by the government to make the treasury notes legal 
 tender in the payment of debts between private parties. It 
 has been claimed that the character of legal tender in- 
 creases the purchasing power of the treasury notes. If 
 this were so, it would be a faint justification of the law as a 
 war measure. But it is not true. The purchasing power 
 of a government treasury note, or of any other paper cur- 
 rency, depends upon the popular confidence in its ready 
 convertibility into specie. There is no difference in the 
 purchasing power of treasury notes and national bank notes, 
 although one is made legal tender, and the other is not. 
 Both are received as the equivalent of a gold or silver dol- 
 lar, because of the confidence in the convertibility of both 
 of them into coin; whereas, during the civil war, when 
 many brave and true men were fearful of the result and the 
 popular confidence in the durability of the United States 
 government was greatly shaken ; although the notes were 
 made legal tender, they sunk steadily in value, until at one 
 time, one dollar in gold was the equivalent of two and a 
 
 § 90 
 
224 POLICE EEGUIiATlONS OF TKADBS AND PROFESSIONS. 
 
 half dollars in treasury notes. The treasury notes of the 
 Confederate States fared worse, because their credit was 
 impaired to a greater degree. Therefore, we must con- 
 clude, that even as a war measure it was unconstitutional 
 to make the treasury notes legal tender in payment of 
 private debts, because it did not in any sense assist them in 
 borrowing money or procuring money's equivalent, for the 
 prosecution of the war. 
 
 It is probable that the latest decision of the Supreme 
 Court on this subject will be treated by the present gener- 
 ation as final. But inasmuch as decisions of courts, even of 
 last resort, do not make law, but are merely evidence, 
 albeit the highest and usually most reliable kind of evidence, 
 of what the law is, it is the duty and within the province 
 of jurists to combat error in decisions as in any other 
 source of law, even when there is very little hope of a gen- 
 eral adoption of their views. 
 
 §91. Legislative restraint of importations — Protec- 
 tive tariffs. — The reader, who has carefully followed the 
 line of argument adopted, and the tests applied, in each 
 case of the exercise of police power, will scarcely need any 
 special elaboration of the grounds upon which it is held to 
 be a violation of civil liberty for the government to do any 
 act which is intended to and does restrain importations. 
 Whatever may be thought of the justice of an import tax, 
 in the abstract, the United States constitution expressly 
 grants to the United States government the power to lay 
 such a tax upon all importations. A tariff for revenue, 
 therefore, comes within the legitimate exercise of police 
 power. It is one mode of taxation. But no claim can be 
 successfully made to an express or implied power to es- 
 tablish a tariff whose object is to restrain importations for 
 the protection of competing home industries. The only pro- 
 vision on the subject is article 1, section 8, where it ia\ 
 provided that Congress shall have power " to lay and col- 
 § 91 
 
LEGISLATIVE EE8TEA1NT OF IMPORTATIONS. 225 
 
 lect taxes, duties, imposts, and excises to pay the debts 
 and provide for tlie common defense and general welfare of 
 the United States." Here is found only an authority to 
 establish a tariff for revenue. In the days when the con- 
 stitutionality of tariff laws used to be discussed, it appears 
 to have been conceded by the abler statesmen, that there 
 was no authority in the constitution for creating a tariff for 
 protection, and the claim was usually made that they may 
 establish " a tariff for revenue with incidental protection." 
 This is clearly an inconsistency. A tariff for revenue, 
 •when carried to its logical extreme, would involve the in- 
 stitution of a policy, which would encourage importations, 
 and discourage home manufactures, for the greater the im- 
 posts the larger will be the revenue. On the other hand, 
 the principle of protection, when pushed to its extremity, 
 would restrain importations, and, if possible, the tariff 
 would be so constructed that there would be no imports, 
 and hence no revenue. While a tariff for revenue so con- 
 structed as to operate as an intentional restraint upon home 
 industries would not be just or wise, all tariffs should be 
 constructed with the single object in view of raising revenue, 
 and so far as there is any attempt to afford the so-called in- 
 cidental protection. Congress exceeds the exjjress power 
 to lay imposts. 
 
 But, in accordance with the rule of constitutional con- 
 struction advocated and explained in a subsequent section,^ 
 since the States are denied the power to lay imposts or 
 duties upon imports, " without the consent of Congress," 
 ♦' except what may be absolutely necessary for executing its 
 inspection laws," ^ we claim that Congress may, without 
 express grant of such a power, lay imposts for the pur- 
 poses of protection, if the constitution does not prohibit it. 
 But we also claim that a tariff for protection is prohibited by 
 
 1 See post, § 200. 
 
 « U. S. Cons., art. I., § 10. 
 
 15 § 91 
 
226 POLICE REGULATIONS OP TEADE8 AND PROFESSIONS. 
 
 the constitution, not in express terms, but by the general 
 clause which provides that no one shall " be deprived of 
 life, liberty or property, without due process of law." ^ It 
 would be as constitutional for a State to prohibit one clasa 
 of citizens from trading with another, as it is for the United 
 States to prohibit, totally or partially, the dealing of citi- 
 zens with foreign countries. It is a part of the civil liberty 
 of a citizen of a constitutional State to be permitted to have 
 business relations with whom he pleases. Even though a 
 protective tariff does not compel the consumer to pay more 
 for the home products than he would have to pay for the 
 foreign articles in the absence of a protective tariff, and 
 the home products were of the same value and intrinsic 
 merit, protection is unconstitutional, because it interferes^ 
 with the civil liberty of the citizen, when he is not threaten- 
 ing any evil to the public. But protective tariffs are usually 
 needed, either because it is impossible to manufacture 
 the home products as cheaply, or because they are of an 
 inferior character. Hence, the consumer is made to pay 
 more for his goods, and the tariff furthermore deprives^ 
 him of his property, without due process of law. Without 
 express constitutional authority, nothing but free trade 
 is permissible under a constitutional government and in a 
 free State. 
 
 § 92. Compnisory formation of business relations. — 
 
 It is a part of civil liberty to have business relations with 
 whom one pleases. Judge Cooley says: "It is a part of 
 every man's civil rights that he be left at liberty to refuse 
 business relations with any person whomsoever, whether 
 the refusal rests upon reason, or is the result of whim, ca- 
 price, prejudice or malice." 2 Business relations must be= 
 voluntary in order to be consistent with civil liberty. An 
 attempt of the State to compel one man to enter into bus- 
 
 ' U. S. Const. Amend., art. 6. 
 ' Cooley on Torts, p. 278. 
 § 92 
 
COMPULSOEY rOEMATION OF BUSINESS RELATIONS. 227 
 
 iness relations with another, can only be justified by some 
 public reason or necessity. In an ordinary private business 
 relation, the State cannot constitutionally interfere, what- 
 ever reason may be assigned for one's refusal to have 
 dealings with another. It is no concern of the State or of 
 the individual, what those reasons are. It is his consti- 
 tutional right to refuse to have business relations with a 
 particular individual, with or without reason. But there 
 are cases in which it has long been held to be within the 
 scope of legislative authority to interfere with, and compel, 
 the formation of business relations. The common law of 
 England, and of this country, has for centuries justified 
 this power of control over common carriers and innkeepers. 
 No man is compelled to become a common carrier or inn- 
 keeper ; but if he holds himself out to the world as such, he 
 is obliged to enter into business relations with all, under 
 impartial and reasonable regulations. The common carrier 
 must carry for all, within his regular line of business, and 
 the innkeeper must provide accommodation for all who 
 come to him, as long as he has room for them. These two 
 cases have for so long a time been recognized as exceptions 
 to the general rule, in respect to the voluntary character 
 of business relations, that the reasons for them are rarely,, 
 if ever, demanded, and certainly not questioned. But a 
 determination of the constitutional reasons for these excep- 
 tions, if there are any, will help to discover the limitations 
 of legislative power in respect to other kinds of business. 
 It is stated usually, that the business of a common carrier 
 is a quasi public business, meaning that the public have 
 some rights in it, as, for example, the right to a compul- 
 sory formation of business relations, which they do not 
 possess in respect to a purely private business. But that 
 is rather a statement of what is, rather than a reason for 
 its existence. A similar statement is usually made in re- 
 gard to the peculiar liability of innkeepers, and ordinarily 
 deemed sufficient. But if this regulation of the business 
 
 § 92 
 
228 POLICE REGULATIONS OF TRADES AND PROFESSIONS. 
 
 of a common carrier, and of an innkeeper, is justifiable un- 
 der our constitutional limitations, there must be some good 
 public reason for the regulation, and not merely a matter 
 of public convenience. Where the common carrier enjoys, 
 fa the prosecution of his business, unusual privileges or 
 franchises, as in the case of railroads, ferries, street car 
 companies and the like,^ one need not go further for a 
 reason to justify such a police regulation. Since the State 
 grants the common carrier a privilege, not equally enjoyed 
 by others, for the promotion of the public convenience, it 
 might very well arrange for the impartial carriage of all, 
 under reasonable regulations. And inasmuch as the common 
 carriers, who do not have any special privileges, like hack- 
 men, draymen, and drivers of express and furniture wagons, 
 make a special use of a general privilege, in plying their 
 trade, it may not be unreasonable for the State to compel them 
 to carry all who may offer themselves or their goods. But 
 no such reasons can be assigned for a similar regulation of 
 innkeepers. They enjoy no privileges of any kind. Every 
 man has a natural right to keep an inn, provided he so con- 
 ducts it as not to violate the rights of others, or to consti- 
 tute a public nuisance. If the business was of such a 
 nature, that for the protection of the public from injury 
 it is necessary to make a monopoly and grant it to one or 
 more, as a special privilege,^ then it would be the duty of 
 the State to provide for the impartial entertainment of all 
 who present themselves, and comply with the reasonable 
 regulations of the inn. But the inn is no more likely to be 
 productive of public injury than is the boarding house, 
 from which the inn is distinguished. The keeper of a board- 
 ing house is not obliged to receive as a guest any one who 
 comes. The threatening danger to the public, arising from 
 the improper conduct of the inn, is, therefore, not the reason 
 
 > See post, §§ 189-194. 
 " See post, § 105 
 
 § 92 
 
COMPULSORY FORMATION OF BUSINESS RELATIONS. 229 
 
 for the rule of law, which obliges the innkeeper to receive 
 as his guest, any traveler of decent behavior, who may 
 apply. The object of the rule is to make it convenient for 
 travelers to find lodging upon arriving in a strange place. 
 It is a worthy object, but no man can be compelled to lodge 
 another, simply because he is a traveler, and a stranger. 
 No sufficient reason can be assigned ; unless the reason, 
 given by Chief Justice Waite in a later case,^ may be ac- 
 cepted as a proper one. He says: " Looking to the com- 
 mon law, from whence came the right which the constitu- 
 tion protects, we find that when private property is affected 
 with a public interest, it ceases to be juris privati only. 
 This was said by Lord Chief Justice Hale more than two 
 hundred years ago, in his treatise De Portibus Maris, 1 
 Harg. Law Tracts, 78, and has been accepted without ob- 
 jection as an essential element in the law of property ever 
 since. Property does become clothed with a public inter- 
 est, when used in a manner to make it of public consequence, 
 and affect the community at large. When, therefore, one 
 devotes his property to a use in which the public has an 
 interest, he, in effect, grants to the public an interest in 
 that use, and must submit to be controlled by the public 
 for the common good, to the extent of the interest he has 
 thus created. He may withdraw his grant by discontinuing 
 the use, but, so long as he maintains the use, he must sub- y 
 niit to the control." ^ In this case, the business in question 
 was the storage of grain in bulk in the Chicago elevators. 
 As applied to the particular case, the rule thus laid down 
 by Chief Justice Waite would give to the legislature the 
 right to regulate any business, which should become a pub- 
 lic necessity. The public utility of the business clothes it 
 with a public interest, and authorizes police regulation to 
 prevent imposition or oppression where the business be- 
 
 1 Munn V. Illinois, 94 U. S. 113. 
 « pp. 125, 126. 
 
 § 92 
 
230 POLICE REGULATIONS OF TRADES AND PROFESSIONS. 
 
 comes a virtual monopoly.^ It is unquestionable that the 
 State can, and indeed it is its duty to, subject to police 
 control a monopoly, created by law; but in this case it is 
 laid down for the first time that where the circumstances, 
 surrounding a particular business, or its character, make it 
 a "virtual monopoly," the State can regulate the conduct 
 of the business, so that all having concern in it, will be 
 treated impartially and fairly. I say this rule has been 
 laid down for the first time, although the chief justice re- 
 fers to it as along established rule, and refers to Lord Hale 
 as his authority. A careful study of Hale's writings will 
 disclose the fact that to no case does he refer in which the 
 business does not under the law constitute a privilege, more 
 or less of a legal monopoly. There is nothing in his 
 writings to justify the application of his rule or his reason- 
 
 ^ "In this conDection it must also be borne in mind that, althongli 
 in 1874, there were in Chicago fourteen warehouses adapted to this par- 
 ticular business, and owned by about thirty persons, nine business firms 
 controlled them, and that the prices charged and received for storage 
 were such as have been from year to year agreed upon and established 
 by the different elevators or warehouses in the city of Chicago, and which 
 rates have been annually published in one or more newspapers printed in 
 said city, in the month of January in each year, as the established rates 
 for the year then next ensuing such publication. Thus it is apparent that 
 aU the elevating facilities through which these vast productions of seven 
 or eight great States of the West must pass on the way to four or five of 
 the States on the seashore may be a ' virtual ' monopoly. 
 
 " Under such circumstances it is difficult to see why, if the common 
 carrier, or the miller, or the ferryman, or the innkeeper, or the wharf man, 
 or the baker, or the cartman or the hackney coachman, pursues 
 a 'public employment and exercises <a sort of public office,' these 
 plaintiffs in error do not. They stand, to use again the language of their 
 counsel, in the very ' gateway of commerce,' and take toll from all who 
 pass. Their business most certainly ' tends to a common charge, and is 
 become a thing of public interest and use.' * • * Certainly, if any 
 business can be clothed ' with a public interest, and cease to be juris 
 privati only,' this has been." Opinion of Waite, Ch. J., supra. See post, 
 § 93, for extracts from the dissenting opinion of Justice Field. 
 S 92 
 
COMPULSORY FORMATION OF BUSINESS RELATIONS. 231 
 
 ing to a business, which is a virtual monopoly, but is not 
 made so by law.^ 
 
 But even this is not a satisfactory reason for compelling 
 all innkeepers to receive all guests applying to them at the 
 present day. Perhaps at an early day, when the number 
 ■of travelers was limited, and was not large enough to 
 support more than one inn in most places, inn keeping 
 may have been a virtual monopoly. But that town is 
 ■very small, in this country, which cannot boast of at least 
 two inns, and the actual rivalry and competition to secure 
 guests will dispel all notions of a virtual monopoly. No 
 reason but public convenience can be suggested for the ex- 
 istence of this law in respect to innkeepers, and it is by 
 no means a satisfactory one. The public convenience can 
 never justify the interference of the State with one's 
 private business. 
 
 Of late a disposition to bring within this category the 
 theaters and other places of public amusements has been 
 displayed by legislatures, both State and national, in order 
 to prevent discrimination by the managers and proprietors of 
 such places against the negro, " on account of his race, color, 
 or previous condition of servitude." The United States 
 statute, which has lately been declared to be unconstitu- 
 tional, because the law encroaches upon the domain of the 
 State legislatures,^ and which corresponds in all essential par- 
 ticulars to the State statutes on the same subject, provided 
 "that all persons within the jurisdiction of the United 
 States shall be entitled to the full and equal enjoyment of 
 the accommodations, advantages, facilities and privileges of 
 inns, public conveyances on land and water, theaters and 
 other places of public amusement, subject only to the con- 
 ditions and limitations established by law, and applicable 
 alike to citizens of .every race and color, regardless of any 
 
 1 See post, § 93, for lengthy quotations from Lord Hale. 
 ' See Civil Rights Cases, 109 U. S. 3. 
 
 § 92 
 
 ^ 
 
232 POLICE REGULATIONS OF TEADE8 AND PROFESSIONS. 
 
 previous condition of servitude." So far as these statutes 
 refer to the enjoyment of the privileges of inns and 
 public conveyances, they merely affirm the common law, 
 and grant no new right. But in respect to theaters 
 and other places of public amusement, the regulation is 
 certainly novel. The only legal reason for the regulation 
 is public convenience, unless the circumstances are such that 
 the business becomes a virtual monopoly. And to justify 
 the regulation on these grounds is, certainly, going very far 
 toward removing all limitation upon the power of the State 
 to regulate the private business of an individual. In the Su- 
 preme Court case,^ in which Chief Justice Waite justifies the 
 police control of " a virtual monopoly," on the ground that 
 the use of the elevator is a public necessity to all merchants, 
 who are engaged in the shipment of grain through Chicago tO' 
 all points of the country. So, also, may the entertainment at 
 an ian be considered a public necessity to all travelers. But 
 attendance upon theatrical and other public amusements can 
 in no sense be considered a necessity, nor is the business a 
 franchise or legal monopoly. Such legislation should, there- 
 fore, be condemned as unconstitutional. But it has been 
 sustained in Mississippi against all objections,^ and Judge 
 Cooley justifies it in the following language : " Theaters and 
 other places of public amusement exist wholly under the 
 authority and protection of State laws; their managers are 
 commonly licensed by the State, and in conferring the 
 license it is no doubt competent for the State to impose the 
 condition that the proprietors shall admit and accommodate 
 all persons impartially. Therefore, State regulations cor- 
 responding to those established by Congress must be clearly 
 within the competency of the legislature, and might be es- 
 tablished as suitable regulations of police." * 
 
 > Mann r. Illinois, supra. 
 ' Donnell ». State, 48 Miss. 661. 
 
 » Cooley on Torts, p. 285. Seepost, § 101, concerning licenses as police 
 regnlations. 
 
 § 92 
 
REGULATION OF PRICES AND CHARGES. 233 
 
 § 93. Regulation of Prices and charges. — A most in- 
 teresting question, somewhat like, and resting upon the 
 same grounds as the one discussed in the preceding section, 
 is the right of the government to regulate prices and 
 charges for things and services. The exercise of this 
 power was quite common in past ages ; and there appeared 
 to be no well defined limitations upon the power, if any at 
 all were recognized. But under a constitutional and 
 popular government, there must necessarily be some limi- 
 tation. It is a part of the natural and civil liberty to 
 form business relations, free from the dictation of the 
 State, that a like freedom should be secured and enjoyed in 
 determining the conditions and terms of the contract which 
 constitutes the basis of the business relation or transaction. 
 It is, therefore, the general rule, that a man is free to ask 
 for his wares or his services whatever price he is able to get 
 and others are willing to pay ; and no one can compel him 
 to take less, although the price may be so exorbitant as to 
 become extortionate. No one has a natural right to the 
 enjoyment of another's property or services upon the pay- 
 ment of a reasonable compensation ; for we have already 
 recognized the right of one man to refuse to have dealings 
 with another on any terms, whatever may be the motive 
 for his refusal. But there are exceptions to the rule 
 which can be justified on constitutional grounds. This^s 
 general freedom from the State regulation of prices and 
 charges can only be claimed as a natural right so far as the 
 business is itself of a private character, and is not connected 
 with, or rendered more valuable by, the enjoyment of some 
 special privilege or franchise. Whenever the business is it- 
 self a privilege or franchise, not enjoyed by all alike, or 
 the business is materially benefited by the gift by the State 
 of some special privileges to be enjoyed in connection with 
 it, the business ceases to be strictly private, and becomes 
 a. quasi public business, and to that extent may be subjected 
 to police regulation. A special privilege or franchise i& 
 
 § 93 
 
234 POLICE KEGULATIONS OF TRADES AND PROFESSIONS. 
 
 granted to individuals because of some supposed benefit to 
 the public, and in order that the benefit may be assured to 
 the public, the State may justly institute regulations to that 
 end. The regulation of prices in such cases, will therefore, 
 be lejritimate and constitutional.^ 
 
 But the regulation of prices will not be justified in any 
 case where the law merely declares the prosecution of the 
 business to be a privilege or fi'anchise. IF it be without leg- 
 islation a natural right, no law can make it a privilege by 
 requiring a license. The deprivation of the natural right to 
 carry on the business must be justifiable by some public rea- 
 son or necessity. Otherwise the general or partial prohibi- 
 tion is unconstitutional, aud furnishes no justification for the 
 regulation of prices and charges, incident to the business.* 
 
 But some of the courts are inclined to extend the exercise 
 of this power of control to other cases, which do not come 
 within the classes mentioned, viz. : those in which no special 
 privilege or franchise is enjoyed, and in which there is no 
 legal monopoly, but in which the circumstances conspire to 
 create in favor of a few persons a virtual monopoly out of 
 
 1 Chicago, etc., R. E. Co. v. Iowa, 94 TJ. S. 155; Peik v. Chicago, etc., 
 K. K. Co., 94 U. S. 164; Slaughterhouse Cases, 16 Wall. 36; Waterworks 
 «. Schotler, 110 U. S. 347. Judge Cooley classifies the cases as follows: — 
 
 "1. Where the business is one, the following of which is not a matter o£ 
 right, but is permitted by the State as a matter of privilege or franchise. 
 Under this head may be classed the business of setting up lotteries, of 
 giving shows, and of keeping billiard-tables for hire ; of selling intoxicat- 
 ing drinks, and of keeping a lerry or toll bridije. 
 
 "2. When the State on public grounds renders to the business special 
 assistance by taxation, or under the eminent domain, as is done in the 
 case of railroads. 
 
 " 3. When, for the accommodation of the business special privileges are 
 given in the public streets, or exceptional use allowed of public property 
 or public easements, as in the case of hackmen, draymen, etc. Com- 
 monwealth V. Gage, 114 Mass. 328. 
 
 "4. When exclusive privileges are granted in consideration of some 
 special return to the public and in order to secure something to the pub- 
 lic not otherwise attainable." Cooley's Principles tif Constitution, p. 234. 
 
 « See post, § 102. 
 
 § 93 
 
EEGULATION OF PRICES AND CHARGES. 235 
 
 :a business of supreme necessity to the public. The leading 
 case is that of Muna v. Illinois, already mentioned in the 
 preceding section.^ It has so important a bearing upon the 
 question under discussion, that we will quote again Chief 
 Justice Waite's statement of the rule laid down in that case. 
 He says : " Looking, then, to the common law, from whence 
 came the right which the constitution protects, we find that 
 when private property is ' affected with a public interest, it 
 ceases to bo juris privati only.' This was said by Lord 
 Chief Justice Hale, more than two hundred years ago, in 
 his treatise De Portibvs Maris,^ and has been accepted with- 
 out objection as an essential element in the law of property 
 ever since. Property does become clothed with a public in- 
 terest when used in a manner to make it of public conse- 
 quence, and affect the community at large. When, 
 therefore, one devotes his property to a use in which the 
 public has an interest, he, in effect, grants to the public an 
 interest in that use, and must submit to be controlled by the 
 <!ommon good, to the extent of the interest he has thus 
 created. He may withdraw his grant by discontinuing the 
 use ; but, so long as he maintains the use, he must submit to 
 the control." * Although the application of these princi- 
 ples to the case in question only constitutes a precedent for 
 justifying the regulation of prices in those cases, where the 
 business is a virtual monopoly and of great necessity to the 
 public,* yet the language is broad enough to justify al- 
 most any case of regulation of prices. Under this rule, 
 
 I Munn V. People, 69 III. 80; s. c, 94 U. S. 118. 
 
 ■3 1 Harg. Law Tracts, 78. 
 
 ' Munn V. Illinois, 94 U. S. 126, 126. 
 
 * In the case in question, the use of the Chicago elevator was neces- 
 sary to all dealers in grain in that city, and was controlled by nine firms, 
 who annually established rates of charges for the regulation of the busi- 
 ness. Says Chief Justice Waite: "Thus itisapparent thatallthe elevating 
 facilities through which these vast productions ' of seven or eight great 
 States of the West ' must pass on the way ' to four or five of the States 
 on the seashore ' maybe a virtual monopoly." p. 131. 
 
 § 93 
 
\ 
 
 236 POLICE REGULATIONS OF TRADES AND PEOFESSIONS. 
 
 the attainment of the object of all individual activity, viz. : 
 to make oneself or one's services indispensable to the pub- 
 lic, furnishes in every case the justification of State inter- 
 ference. Only the more or less unsuccessful will be 
 permitted to enjoy his liberty without governmental molest- 
 ation. We feel with Mr. Justice Field, who dissents 
 from the opinion of the court, that " if this be sound law, if 
 there be no protection, either in the principles upon which 
 our republican government is founded, or in the prohibi- 
 tions of the constitution against such an invasion of private 
 rights, all property and all business in the State are held 
 at the mercy of a majority of its legislature." ^ For the 
 same reasons, we find the Supreme Court of Alabama jus- 
 tifying an act of the legislature which authorized the town 
 council of Mobile to license bakers, and regulate the weight 
 and price of bread. In declaring the act to be constitu- 
 tional, the court said : '< There is no motive, however, for this- 
 interference on the part of the legislature with the lawful ac- 
 
 1 "The public has no greater interest in the use of buildings for the 
 storage of grain than it has in the use of buildings for the residences of 
 families, nor, indeed anything like so great an interest; and, according 
 to the doctrine announced, the legislature may fix the rent of all tene- 
 ments used for residences, without reference to the cost of their erection. 
 If the owner does not like the rates prescribed, he may cease renting his 
 houses. He has granted to the public, says the court, an interest in the 
 use of the buildings, and ' he may withdraw his grant by discontinuing 
 the use ; but, so long as he maintains the use, he must submit to the con- 
 trol.' The public is Interested in the manufacture of cotton, woolen and 
 sUken fabrics, in the construction of machinery, in the printing and pub- 
 lication of books and periodicals, and ia the making of utensils of every 
 variety, useful and ornamental ; indeed, there is hardly an enterprise or 
 business engaging the attention and labor of any considerable portion of 
 the community, in which the public has not an interest in the sense 
 in which that term is used by the court in its opinion; and the doc- 
 trine which allows the legislature to interfere with and regulate the 
 charges which the owners of property thus employed shall make for 
 its use, that is, the rates at which all these different kinds of business 
 shall be carried on, has never before been asserted, so far as I am aware, 
 by any judicial tribunal in the United States." Dissenting opinion of 
 Justice Field in Munn v. Illinois, 94 U. S. 136. 
 § 93 
 
REGULATION OP PRICES AND CHARGES. 237 
 
 tions of individuals or the mode in which private property 
 shall be enjoyed, unless such calling affects public inter- 
 ests, or private property is employed in a manner which 
 directly affects the body of the people." 
 
 "Upon this principle, in this State, tavern keepers are 
 licensed and required to enter into bond, with surety, 
 that they will provide suitable goods and lodgings for 
 their guests, and stabling and provender for their horses. 
 The county court is required, at least, once a year, to settle 
 the rates of innkeepers, and upon the same principle is 
 founded the control which the legislature has always exer- 
 cised in the establishment and regulation of mills, fences, 
 bridges, turnpike roads and other kindred subjects." ^ 
 
 Chief Justice Waite relies upon Lord Hale as an au- 
 thority for his recognition of the rule as of common-law 
 origin. But there is nothing in Lord Hale's wi'itings to 
 support the broad application which the Chief Justice makes 
 of his language. In every case to which Lord Hale applies 
 this doctrine, there is a grant of a special privilege or fran- 
 chise, and the enjoyment of it is regulated by law so that 
 the public may derive from it the benefit which constituted f 
 the consideration of the grant. Thus, in respect to ferries, 
 he says, the king "has a right of franchise or privilege, 
 that no man may set up a common ferry for all passengers, 
 without a prescription time out of mind, or a charter from 
 the king." And he proceeds to make the claim that "every 
 ferry ought to be under a public regulation, viz. : that it 
 give attendance at due times, keep a boat in due order, and 
 take but reasonable toll." So, also, in respect to wharves 
 and wharfingers, the same writer says: — 
 
 " A man, for his own private advantage may, in a port 
 or town, set up a wharf or crane, and may take what rates 
 he and his customers can agree for cranage, wharfage, 
 
 1 Mayor v. Tuille, 3 Ala. 137 (36 Am. Dec. 441). See Page v. Fazack- 
 erly, 36 Barb. 392; Guillotte v. New Orleans, 12 La. Ann. 432. 
 
 § 93 
 
238 POLICE REGULATIONS OF TRADES AND PROFESSIONS. 
 
 housellage, pesage ; for he doth no more than is lawful for 
 any man to do, viz., make the most of his own. * * * 
 If the king or subject have a public wharf, unto which all 
 persons that come to that port must come and unlade or lade 
 their goods, as for the purpose, because they are the only 
 wharves licensed by the king, * * * or because there is 
 no other wharf in that port, as it may fall out where a port 
 is newly erected ; in that case there cannot be taken arbitrary 
 and excessive duties for cranage, wharfage, pesage, etc., 
 neither can they be enhanced to an immoderate rate ; but the 
 duties must be reasonable and moderate, though settled by 
 the king's license or charter. For now the wharf and crane 
 and other conveniences are aflfected with a public interest, 
 and they cease to he juris privati only; as if a man set out 
 a street in new building on his own land, it is now no longer 
 a bare private interest, but is affected by a public interest." ^ 
 At common law, the right of property in a wharf or pier 
 was a franchise. Lord Hale, therefore, cannot be cited in 
 support of the doctrine that the State may regulate the 
 prices charged in a business which from the circumstances 
 becomes a virtual monopoly. And even if he did justify 
 such regulations, his opinions can hardly be set up in oppo- 
 sition to the rational prohibition of the American constitu- 
 tion. By all the known rules of constitutional construction 
 the conclusion must be reached that the regulation of prices 
 in such a case is unconstitutional ; and while the common 
 law is still authority for the propriety and justification of 
 laws, which antedate the American constitutions, it cannot 
 be cited to defeat the plain meaning of the constitution in 
 respect to laws subsequently enacted. 
 
 § 94. Usury and interest laws. — It has long been the 
 custom in England and in this country to regulate the rate 
 of interest. 
 
 ' De Portlbus Maris, 1 Harg. Law Tracts, 78. 
 § 94 
 
USURY AND INTEREST LAWS. 239 
 
 The regulation of interest may be of two kinds. So 
 far as the legislature undertakes to determine what rate 
 of interest can be recovered on contract^ for the payment 
 of money, in the absence of the express stipulation of the 
 parties, it is a reasonable police regulation, the object of 
 which is to aid the parties in effecting settlements, when 
 they have not previously agreed upon any rate of interest. 
 If the parties are not satisfied with the statutory Tate, they 
 can agree upon any other rate. But it is different when the 
 legislature undertakes to prescribe what rate of interest the 
 parties to a contract may agree upon. The rate of interest, 
 like the price of merchandise, is determined ordinarily by 
 the relation of supply and demand. Free trade iu money 
 is as much a right as free trade in merchandise. If the 
 owner of the property in general has a natural right to ask 
 whatever price he can get for his goods, the owner of money 
 may exact whatever rate of interest the borrower may be 
 willing to give. For interest is nothing more than the price 
 asked for the use of money. No public reason can be urged 
 for imposing this restriction upon the money lender, and the 
 utter futility of such laws, in attempting to control the rate 
 of interest, is, or should be, a convincing proof of their 
 unreasonableness. It has been suggested that originally 
 these laws were based upon the fact that the lending of 
 money was a special privilege. "The practice of regu- 
 lating by legislation the interest receivable for the use 
 of money, when considered with reference to its origin, is 
 only the assertion of a right of the government to 
 control the extent to which a privilege granted by 
 it may be exercised and enjoyed. By the ancient com- 
 mon law it was unlawful to take any money for the 
 use of money; all who did so were called usurers, a 
 term of great reproach, and were exposed to the censure of 
 the church, and if, after the death of a person, it was dis- 
 covered that he had been a usurer while living, his chattels 
 were forfeited to the king, and his land escheated to the 
 
 § 94 
 
240 POLICE REGULATIONS OF TRADES AND PROFESSIONS. 
 
 lord of the fee. No action could be maintained on any 
 promise to pay for the use of money, because of the unlaw- 
 fulness of the contract. Whilst the common law thus con- 
 demned all usury, Parliament interfered, and made it lawful 
 to take a limited amount of interest. It was not upon the 
 theory that the legislature could arbitrarily fix the compen- 
 sation which one could receive for the use of property, 
 which, by the general law, was the subject of hire for com- 
 pensation, that Parliament acted, but in order to confer a 
 privilege which the common law denied. The reasons which 
 led to this legislation originally have long since ceased to 
 exist; and if the legislation is still persisted in, it is because 
 a long acquiescence in the exercise of a power, especially 
 when it was rightfully assumed in the first instance, is gen- 
 erally received as suflicient evidence of its continued law- 
 fulness." ^ 
 
 But, of course, this reason furnishes no justification for 
 the present existence of such laws. In the light of modern 
 public opinion, the lending of money on interest is in no 
 sense a privilege, and no law can make it so. The biblical 
 injunction against the taking of interest, and the fact that 
 the original money lenders of Europe were Jews ; in other 
 words, respect for the teachings of the Bible on the subject, 
 and hate for the despised Jew, probably combined to bring 
 the usury laws into being. In the Middle Ages, the Jew 
 had no rights at all. Every recognition of his natural 
 rights was a privilege. Suffice it to say, that on no satisfac- 
 tory grounds can usury laws be justified. But their enact- 
 ment has so long been recognized as a constitutional exercise 
 of legislative authority, and the fact that they become dead 
 letters as soon as enacted, render it very unlikely that the 
 courts will pronounce them unconstitutional, however ques- 
 tionable legal writers and authorities may consider them. 
 Mr. Cooley says that the usury laws are '* difficult to defend 
 
 1 Field, J., in Munn v. Illinois, 94 U. S. 136; 10 Bac. Abr. 264. 
 § 94 
 
PREVENTION OF SPECULATION. 241 
 
 on principle; but the power to regulate the rate of interest 
 has been employed from the earliest days, and has been too 
 long acquiesced in to be questioned now." ^ I differ with 
 the learned judge in his opinion that long acquiescence in 
 such laws precludes an inquiry into their constitutionality ; 
 but will readily accede that the easy evasion of them makes 
 it unimportant whether they are questioned or not, except 
 that it may be considered as highly injurious to enact any 
 law which is not or cannot be enforced, in that the success- 
 ful defiance or evasion of a particular law tends to lessen 
 one's reverence for law in general. 
 
 § 95. Prevention of Speculation. — Free trade is an 
 undoubted constitutional right. Every man has the con- 
 stitutional right, not only to determine with whom he 
 will have business dealings, and to whom be shall offer 
 his goods or his services, but he also has the right, in 
 most cases, whether he shall offer them to any one at all. 
 He may refuse, without giving any reasons, to sell his goods 
 or to tender his services. He cannot ordinarily be compelled 
 to do either. The only exceptions that suggest themselves, 
 are cases in which the right of eminent domain is exercised,* 
 and those in which the State in the emergency of war makes 
 forced sales of the property of private individuals for war 
 purposes,^ and all cases of compulsory performance of du- 
 ties to the State. In all other cases a man cannot lawfully 
 be compelled to part with his property, or to render services 
 against his will. Circumstances may conduce to make a 
 particular business a virtual monopoly in the hands of one 
 man or one partnership. But I apprehend that he cannot 
 for that reason be subjected to police regulation. Because 
 one man has the capital wherewith to buy up all the corn 
 or wheat in our great Western markets, and to cause in con- 
 
 * Cooley's Principles of Const. Law, p. 235. 
 2 See post, § 121. 
 » See post, §137. 
 
 16 § 95 
 
242 POLICE REGULATIONS OF TRADES AND PROFESSIONS. 
 
 sequence a rise in the values of these commodities, does not 
 justify State iuterference with his liberty of action, any 
 more than would the police regulation of the whole capital- 
 i ist class be permissible. And yet this one man occupies 
 an economical position, differing only in degree from the 
 : capitalists as a class. The same qualities and characteristics 
 which enabled him to become a capitalist, will urge him to 
 make the most of the wealth he has accumulated or inherited^ 
 and he will so manipulate it as to increase its returns if possi- 
 ble. Each successful increase in the returns from capital, 
 increase the price of the commodity, in the manufacturing or 
 preparation or handling of which the capital has been inves- 
 ted. It is only in extraordinarily abnormal cases that any one 
 man can acquire this power over his fellow-men, unless he is 
 the recipient of a privilege from the government, or is guilty 
 of dishonest practices. The remedy for the first case, in a 
 constitutional government is to withhold dangerous priv- 
 ileges, or if the grant of them is conducive to the public wel- 
 fare, to subject their enjoyment to police regulation, so that 
 the public may derive the benefit expected and receive no 
 injury. In the second class of cases, a rigid prosecution of 
 dishonest practices will be an efficient remedy. 
 
 The common law did not recognize this view of a right to 
 be free from police regulation, in the matter of trade. 
 "While the general right to buy and sell without let or hin- 
 drance was recognized, certain sales were held to be illegal, 
 and punished as misdemeanors, which are exceedingly 
 common at the present day, and, if not legal, are acknowl- 
 edged by the commercial world as legitimate t^^ansactions. 
 These were sales, known at common law by the names, 
 forestalling, regrating, and engrossing. Says Blackstone r 
 " The offense oi forestalling the market is an offense against 
 public trade. This, which (as well as the two following; is 
 also an offense at common law, was described by statute b 
 and 6 Edw. 6, ch. 14, to be the buying or contracting for any 
 merchandise or victual coming in the way to market ; or 
 § 95 
 
PREVENTION OF SPECULATION. 243 
 
 dissuadiDg persons from bringing their goods or provisions 
 there ; any of whiah practices make the marliet dearer to 
 the fair trade. Regrating was described by the same statute 
 to be the buying of corn or other dead victual, in any. mar- 
 ket, and selling it again in the same market, or within four 
 miles of the place. For this also enhances the price of 
 provisions, as every successive seller must have a successive 
 profit. Engrossing was also described to be the getting into 
 one's possession, or buying up, large quantities of corn or 
 other dead victuals, with intent to sell them again. This 
 must, of course, be injurious to the public, by putting it in 
 the power of one or two rich men to raise the price of pro- 
 visions at their own discretion. And so the total engrossing 
 of any other commodity with an intent to sell it at an un- 
 reasonable price is an offense indictable and finable at the 
 common law." ^ In Kussell on Crimes,^ these offenses are 
 stated as follows: " Every practice or device by art, con- 
 spiracy, words, or news, to enhance the price of victuals 
 or other merchandise, has been held to be unlawful ; as 
 being prejudicial to trade and commerce, and injurious to 
 the public in general. Practices of this kind come under 
 the notion of forestalling, which anciently comprehended,, 
 in its significance, regrating and engrossing and all other 
 offenses of the like nature. Spreading false rumors, buying 
 things in the market before the accustomed hour, or buying: 
 and selling again the same thing in the same market, are 
 offenses of this kind. Also if a person within the realm, 
 buy merchandise in gross, and sell the same in gross, it has 
 been considered to be an offense of this nature, on the 
 ground that the price must be thereby enhanced, as each 
 person through whose hands it passed would endeavor to 
 make his profit of it." As stated by Blackstone, these acts 
 are no longer recognized by the American criminal law as- 
 
 > 4 Bl. Com. 154. 
 
 * 1 Buss. Crimes (Grea. Ed.), 168. 
 
 § 95 
 
244 POLICE REGULATIONS OF TRADES AND PROFESSIONS. 
 
 offenses against the public, or as being in any way illegal. 
 The purchase of merchandise, or any other commodity, 
 that may be the subject of sale, expecting a rise in the 
 price, in other words, speculation, is legal, whether the buyer 
 intends to sell again, in gross, or in retail. A man has a 
 constitutional right to buy anything in any quantity, pro- 
 viding he use only fair means, and set his own price on it, 
 or refuse to sell at all. Where one man, acting independ- 
 ently, does this, he can be only considered guilty of a wrong 
 to the public, when he secures the possession of these things 
 by the practice of fraud, or endeavors by false reports to 
 enhance the price of a commodity which he offers for sale. 
 These are distinct acts of fraud or deception, and it is proper 
 for the law to declare them illegal. Further the law cannot 
 go. Mr Bishop, in discussing these common-law offenses, 
 denies that regrating, as distinguishable from forestalling 
 and engrossing, can be considered a criminal offense in this 
 country,^ but he recognizes the other two offenses, in a 
 modified form. In respect to forestalling, he says : "In 
 reason, the essence of the common law, on the subject of 
 forestalling, considered distinct from engrossing and regrat- 
 ing, seems to be, that, whenever a man, by false news, or hy 
 any hind of deception, gets into his hands a considerable 
 amount of any one article of merchandise, and holds it for 
 an undue profit, thereby creating a perturbation in what ■ 
 pertains to the public interests, he is guilty of the offense of 
 forestalling." * As stated by Mr. Bishop, the common law in 
 making a criminal offense of forestalling is no more open to 
 constitutional objection than the punishment or prohibition 
 of any other act of fraud or deception. But Mr. Bishop's 
 position, in regard to engrossing, is not as free from criti- 
 cism. He says: "Whenever a man, for the purpose of 
 putting things, as it were, out of joint, and obtaining an un- 
 
 1 1 Bishop Crim. Law, § 970. 
 
 2 1 Bishop Crim. Law, § 968. 
 
 § 95 
 
PREVENTION OF COMBINATIONS IN RESTRAINT OP TRADE. 245 
 
 due profit, purchases large quantities of an article of mer- 
 chandise, to hold it, not for a fair rise, but to compel buyers 
 to pay a price greatly above, as he knows, what can be 
 regularly sustained in the market, he may, on principle, be 
 deemed, with us, to be guilty of the common-law offense 
 of engrossing." ^ It is, without doubt, an immoral act, to 
 ask an unconscionably high price for a commodity, taking 
 advantage of the pressing wants of the people ; and it may, 
 under a high code of morals, be held to be an extortion, for 
 one to purchase and hold merchandise for the purpose of 
 gaining from its sale more than a fair profit ; but it cannot 
 be claimed that there is a trespass upon the rights of others 
 in doing so, or that the rights of others are thereby threat- 
 ened with injury. One is simply exercising his ordinary 
 rights in demanding whatever price he pleases for his 
 property. But apart from this objection, the great diffi- 
 culty, if not impossibility, in ascertaining what is an ex- 
 tortionate price, and the practical inability, to enforce ^t, 
 would predetermine such a law to become a dead letter. 
 
 § 96. Prevention of combinations in restraint of 
 trade. — While the manipulation of capital by single in- 
 dividuals cannot threaten the public welfare by the general 
 oppression of the masses ; when two or more people com- 
 bine their energies and their capital, the acquisition of this 
 extraordinary power becomes easier and more common. 
 In fact, it may be stated that, practically, combination is 
 absolutely necessary in all cases to its acquisition. But 
 combinations are beneficial, as well as injurious, according 
 to the motives and aims with which they were formed. It 
 is, therefore, impossible to prohibit all combinations. The 
 prohibition must rest upon the objectionable character of the 
 object of the combination. One of these objectionable ob- 
 jects is the restraint of trade. At common law, audit is 
 
 1 Bishop Crim. Law, § 969. 
 
 § 96 
 
246 POLICE REGULATIONS OF TRADES AND PROFESSIONS. 
 
 still the law in most, if not all, of the States, [in some 
 there are statutory regulations on the subject], all combina- 
 tions in restraint of trade were unlawful, and no contracts, 
 founded upon the combination, would be enforced by the 
 courts.^ 
 
 The cases are numerous and apply to almost all kinds of 
 combinations, the object of which is the extortion of the 
 public. As expressed by one judge, " a combination is 
 criminal, whenever the act to be done has a necessary ten- 
 dency to prejudice the public; or to oppress individuals, by 
 unjustly subjecting them to the power of the confederates, 
 and giving effect to the purpose of the latter, whether 
 of extortion or of mischief.* Even where this effect 
 is more or less remote, the combination will be void. 
 Thus the English court has refused to enforce an agreement, 
 entered into by several employers in the same line of business, 
 to suspend or carry on the business, in obedience to the direc- 
 tion of the majority.* So also, are all combinations among 
 employees void, whose object is the restraint or control of 
 a particular trade. The obligations of the individual mem- 
 ber to obey the orders of the league or combination, to 
 refuse to offer his services to one, against whom the com- 
 bination is directed, cannot be enforced in the courts.* 
 
 Labor organizations are very common in this country, 
 and a consideiation of their rights and powers inside of the law 
 is therefore necessary. It can hardly be denied that so far 
 as these organizations have charitable objects in view, the 
 care of their sick and indigent members, the dissemination 
 of useful literature among them and their enlightenment on 
 
 » 1 Hawk Pleas C, ch. 80, § 1; 1 Bl. Com. 150; Rex v. Waddlngton, I 
 East, 43 ;1 Smith's Lead. Cas. 367,381; Lang o. Weeks, 2 Ohio (n. 8.) 619; 
 Thomas v. Tiles, 3 Ohio, 74; Barry ». Croskey, 2 Johns. & H. 1; Jones 
 V. Lees, 1 H. & N. 189, Gulich v. Ward, 5 Halst. 87; Benjamin on 
 Sales, 799. 
 
 ' Com. V. Carlisle, Brightley, 40. 
 
 * Hilton V. Eckersley, 6 El. & Bl, 47, 66. 
 
 * Hornby v. Close, L. R. 2 Q. B. 183. 
 
 § 96 
 
PEEVENTION OF CONBINATIONS IN EESTRAINT OP TRADE. 247 
 
 matters connected with their trade, they are lawful. For 
 such purposes the formation of associations can never be 
 prohibited in any free State. Their prohibition would be a 
 violation of constitutional liberty. But so far as these com- 
 binations have for their object the control of trade, and of the 
 price of labor, they constitute combinations in restraint of 
 trade, and all contracts founded upon them are void. A 
 successful combination of labor will raise the price of labor 
 and hence the cost of the commodity above its normal value 
 in the same manner as the combination of capitalists will 
 increase the cost of the commodity by increasing the re- 
 turn to capital . Free trade is only possible by a prohibition 
 of both classes of combinations which, if successful, are 
 equally dangerous to the public safety and comfort. 
 
 But at common law the combinations of employees for 
 their mutual protection against the demands of their em- 
 ployers are not punishable criminally, nor actionable civ- 
 illy, unless they commit some distinct offense against the 
 public or against an individual. While an agreement 
 among workmen to labor for not less than a given sum, or 
 to refuse to work for a particular employer, or to work 
 with employees, who do not belong to the union or organ- 
 ization, and the like, will not be enforced by the courts 
 against one who refuses to fulfill his obligations, since it is 
 against public policy; there is no common-law wrong done 
 to the public or to the individuals who may be affected by 
 the combination, as long as they do not by threats or acts 
 of trespass against the rights of persons and property, at- 
 tempt an interference with the freedom of others to employ 
 and be employed by whom they please. Says Chapman, 
 Ch. J. : " Everv man has a right to determine what branch 
 of business he will pursue, and to make his own contracts 
 with whom he pleases, and on the best terms he can. He 
 may change from one occupation to another, and pursue as 
 many different occupations as he pleases, and competition 
 in business is lawful. He may refuse to deal with any mau 
 
 § 96 
 
248 POLICE REGULATIONS OF TRADES AliTD PROFESSIONS. 
 
 or class of men ; and it is no crime for any number of per- 
 sons, without an unlawful object in view, to associate, 
 themselves together and agree that they will not work for 
 or deal with certain .men or classes of men, or work under 
 a certain price or without certain conditions. * * * 
 Freedomis the policy of this country." ^ Mr. Bishop states 
 that in England and in this country, combinations among 
 workmen to raise the price of wages are indictable at com- 
 mon law.^ In England, statutes have been passed making 
 such combinations a criminal offense, but it is not a crime, 
 independently of statute, for workmen to combine to en- 
 hance the price of labor.* But there can be no question 
 concerning the power of the State to make such combina- 
 tions criminal misdemeanors, if the public safety should 
 require it. The power to declare an act unlawful being ad- 
 mitted, the choice of remedies for its prevention is wholly 
 within the discretion of the legislative power.* 
 
 § 96a. A combination to " comer " tlie market. — One 
 
 of the commonest cases of combinations in restraint of 
 trade, is where two or more dealers in a staple commodity 
 undertake to " corner the market." Dos Passos defines 
 "a corner" in the following language: "A scheme or 
 combination of one or more ' bulls ' who are ♦ long ' of cer- 
 tain stocks or securities, to compel the « bears,' or persons 
 ' short ' of the stock to pay a certain price for the same. 
 Or it may be a combination to force a fictitious and un- 
 natural rise in the market, for the purpose of obtaining the 
 
 1 Carew v. Rutherford, 106 Mass. 1, 13, citing Conn. v. Hunt, i Met. 
 Ill ; Boston Glass Manufactory v. Binney, 4 Pick. 425 ; Bowen v. Mathe- 
 son, 14 Allen, 499. 
 
 2 2 Bishop Crim. Law, §§ 224, 225, citing Eex v. Mawbey, 6 T. R. 619; 
 Com. V. Hunt, 4 Met. 11 ; People v. Fisher, 14 Wend. 9. 
 
 a Com. V. Hunt, 4 Met. 111. See post, § 97 on Boycotting. 
 
 * See People v. Fisher, 14 Wend. 9, in which it is held that the New 
 York statute, concerning conspiracy, makes it a misdemeanor for work- 
 men to combine to raise their wages. 
 
 § 96a ^- 
 
A COMBINATION TO •'COENEK" THE MARKET. 249 
 
 advantage of dealers, purchasers, and all persons whose 
 necessities or contracts compel them to use or obtain the 
 thing ' cornered.' " ^ In New York, Illinois, Georgia, and 
 Nebraska, there are statutes prohibiting " cornering," and 
 providing remedies for the breach of the statute, but it is 
 safe to assert that the act is unlawful at common law, and 
 independent of statute. A combination to raise funds, or 
 create fictitious prices by the spread of false rumors, is 
 clearly criminal conspiracy, for it injures every one who 
 would have to make purchases of the commodity and were 
 compelled to pay a higher price in consequence of the false 
 rumors.^ So, also, will a combination be void, which is 
 formed for the purpose of enhancing the price of a com- 
 modity by the making of fictitious sales. There is as much 
 fraud in these cases as where the combination attained their 
 ends by setting false rumors in motion. In both cases 
 there is a fraud against the public* These cases are plain, 
 because in both classes of cases there is a distinct act of de- 
 ception or fraud. But the illegality of combinations is 
 pushed to the extreme limit, when it is held that a combi- 
 nation to enhance the price of a commodity is always un- 
 lawful, even where there is no deception or fraud, and 
 when the combination do nothing more than hold the goods 
 which they control for higher prices. But that is the com- 
 mon-law rule. Such combinations are quite common in later 
 days, and public opinion is very tolerant of them, rarely, 
 if ever, condemning the practice as immoral, but there can 
 be no question concerning their illegality. In Eaymond v. 
 Leavitt,* plaintiff loaned defendant $10,000 for purpose of 
 
 1 Dos Passes on Stock Brokers, p. 454. 
 
 2 Rex V. Be Berenger, 3 M. & S. 67. See, also, Hitchcock v. Coker, 6 
 Ad. & El. 438; Hinde ». Gray, 1 M. & G. 195; Home v. Ashford, 3 Bing. 
 322; Com. v. Hunt, 4 Met. 111. 
 
 ' Marsh ». Russell, 2 Lans. 75; Stanton v. Allen, 5 Denio, 434; 2 Kent 
 Com. 699 ; Bissbane v. Adams, 3 Comst. 129 ; Hooker v. Vandewater, 4 
 Denlo, 349. See Craft v. McConoughy, 79 111. 346. 
 
 i 46 Mich. 447. 
 
 *. § 96a 
 
250 POLICE EEGULATIONS OF TRADES AND PROFESSIONS. 
 
 controlling wheat market at Detroit for parties called the May 
 deal. The scheme was " to force a fictitious rise in values." 
 The court held that the money advanced for the purpose of 
 making a " corner" in wheat, could not be recovered by 
 any legal measures and this, too, independently of statute. 
 " There is no doubt that modern ideas of trade have prac- 
 tically abrogated some common-law doctrines which are sup- 
 posed to unduly hamper commerce." * * * a gut ^g 
 do not feel called upon to regard so much of the common 
 law to be obsolete as treats these combinations as unlawful, 
 whether they should now be held punishable as crimes or 
 not. The statute of New York, which is universally con- 
 ceded to be a limitation of the common-law offenses is 
 referred to in Arnot v. Coal Co.,^ as rendering such con- 
 spiracies unlawful, and this had been previously held in 
 People V. Fisher,^ where the subject is discussed at length. 
 There maybe some difficulty in determining such conduct to 
 be in violation of public policy, where it has not before been 
 covered by statutes as precedents. But in the case before us 
 the conduct of the parties comes within the undisputed cen- 
 sure of the laws of the land, and we cannot sustain the trans- 
 action, without doing so on the ground that such dealings are 
 so manifestly sanctioned by usage and public approval, that 
 it would be absurd to suppose the legislature, if attention were 
 called to them, would not legalize them. We do not think 
 public opinion has become so thoroughly demoralized ; and 
 until the law is changed, we shall decline enforcing such 
 contracts. If parties see fit to invest money in such ven- 
 tures, they must get it back by other than legal measures." ^ 
 
 1 60 N. Y. 568. 
 
 2 U Wend. 9. 
 
 ' See Sampson v. Shaw, 101 Mass. 145; Crawford v. Wick, 18 Ohio, 
 190; Morris Run Coal Co. v. Barclay Coal Co., 68 Pa. 173; Central Ohio 
 Salt Co. V. Guthrie, 35 Ohio, 666. "Whenever a particular staple is 
 ^essential to the health and comfort of a community, a combination to 
 absorb it, for the purpose of extortion, is invalid." 1 Hawk. P C, ch. 
 «0, § 1; 1 Bl.Com. 150; Rex c . Waddington, 1 EastjtB ; Indian Bagging 
 § 96a 
 
A COMBINATION TO "CORNER" THE MARKET. 251 
 
 Of the same character would be an agreement between 
 all the transportation companies of a particular territory, 
 which was made for the purpose of preventing competition, 
 and controlling the rates of charges for transportation. 
 Such agreements are void.^ The only ground upon which 
 "the prohibition of combinations in such cases may be justi- 
 fied is that such combinations tend to give to the mem- 
 bei'S of them an undue and dangerous power over the needs 
 and necessities of the people ; and for that reason it is a 
 legitimate exercise of police power to prohibit such combi- 
 nations. Such a law does not interfere with the equal free- 
 dom of all to do what they will with their own. Every 
 one is left free to do or act as he pleases, but he is not al- 
 lowed to deny to others an equal freedom, not even with 
 their consent. Public policy, the public safety, requires the 
 prohibition. 
 
 Since the common law made it an indictable offense for 
 one man to " corner " the market, there can be no question 
 that the combination of two or more to buy up any article 
 of merchandise, and force the payment of exorbitant 
 prices, is a criminal conspiracy, and may be punishable 
 without further legislation, if public opinion did not look 
 so leniently upon such transactions.^ 
 
 Co. ■». Cock & Co., 14 La Ann. 164; 1 Smith's Lead. Cas. 307, 381 ; Lang 
 -». Weeks, 2 Ohio (n. s.), 619; Thomas v. Tiles, 3 Ohio, 74; Barry v. 
 Croskey, 2 Johns. & H. 1. 
 
 ' Magnire !). Smock, 42 Ind. 1 ; Staunton v. Allen, 6 Denio, 484; Hooker 
 V. Vandewater, 4 Denio, 349; Oregon St. Nav. Co. v. Winsor, 20 Wall. 64. 
 
 ' " By the law of New York, no conspiracies are punishable criminally, 
 except those there stated, and among others the conspiracy of two or 
 more persons ' to commit any act injurious to the public health, to public 
 morals, or trade or commerce, or for the perversion or obstruction of jus- 
 tice, or due administration of the laws ' shall constitute a misdemeanor. 
 Under this broad and comprehensive language, which is practically the rule 
 in all the States, either by adoption of the common law or express statute, 
 it will not be diflScult to punish infamous conspiracies or combinations 
 whether their object be to affect the necessaries of life, or securities, 
 or other property In which the public have an interest." Dos Fassos on 
 Stock Brokers 462,* l63; Peck d. Gurney, L. R. 6 H. L. C. 377; Pasley 
 
 § 96a 
 
252 POLICE REGULATIONS OF TRADES AND PROFESSIONS. 
 
 § 97. Boycotting. — In the last few years, and particu- 
 larly in the current year, the industrial world has been 
 greatly agitated by the employment by trade unions in their 
 contest with the employers of a system of warfare, known 
 as boycotting. The origin of the term is involved in some 
 uncertainty, but the name is believed to have arisen during 
 the Irish land troubles a few years ago, in consequence 
 of the manifesto of the Irish land league, that the payment 
 of rents will be refused, if they were not reduced to what 
 was claimed by the league to be a reasonable amount. 
 During the disturbances which followed this attempt tO' 
 carry the manifesto into effect, the peasants came into 
 conflict with a landlord named Boycott. He had been 
 known to be specially severe in making terms with his 
 tenants, and when he refused to accede to the demands of 
 the league and evicted his tenants for refusing to pay rent, 
 almost the entire population of that community combined 
 to force him to terms. The bakers, butchers and other 
 tradesmen refused to have dealings with him. He could 
 buy nothing wherewith to feed his family. All his domestic 
 servants left him, and he could get none to take their place. 
 He and his family were left alone in the midst of a populous 
 community. Existence under such circumstances became 
 unbearable, and he was forced to yield. The success of 
 the combination was hailed with delight by the Irish peas- 
 antry and their sympathizers, and the method or plan 
 adopted to attain the end desired became known as " the 
 boycott." The boycott, unaffected by complications aris- 
 ing from distinct trespasses upon the rights of others, may 
 be defined as being a combination to force one to terms by 
 
 V. Freeman, 3 J. E. 51 ; Bevan v. Adams, 19 W. R. 76 ; Beatty v. Evans, 
 L. R. 7 H. L. C. 102; Pontifex v. Bignold's, 3 Scott, N. R. 390; Moore v. 
 Burte, 4 F. & F. 268; Cross v. Lockett, 6 Abb. Pr. 247; Wakeman v. 
 Dalley, 44 Barb. 498; Cazeaux v. Mali, 25 Barb. 578; Mouse v. Switz, 
 19 How. 275; In re Chandler, 13 Am. Law Reg. ^n. s.) 260; s. c. Biss. 
 C. C. 53 ; sub. nom. Ex parte Young. 
 
 § 97 
 
BOYCOTTING. 253 
 
 abstaining from having business and social relations with 
 him. And in order to make the combination more effect- 
 ive in its operations against one person, the members of 
 the union usually threaten to "boycott" all others who 
 may dare to have relations of any kind with the objection- 
 able person. So far as the managers of a boycott are able 
 to keep themselves and their followers from interfering 
 with the rights of person or of property of those who are 
 boycotted, their action is not illegal at common law, and is 
 not illegal in any American State in which the common 
 law has not been changed by statute. For while all con- 
 tracts or agreements to obey the orders of a trade union in 
 its contests with employers are void, and cannot be en- 
 forced in a court of law, the combinations of labor do not 
 constitute a civil or criminal wrong, as long as the mem- 
 bers of the combination do not employ force, or otherwise 
 interfere with the legal rights of their opponents.^ As has 
 already been stated,^ it is the constitutional right of every 
 American citizen to refuse to have business and social re- 
 lations with any one who may displease him, and his 
 motives for abstaining from associating with the ob- 
 jectionable person can not be inquired into. So also is it no 
 criminal or civil wrong at common law to conspire or com- 
 bine to do an act which is lawful for the single individual 
 to do.* As long, therefore, as boycotters simply refrain 
 from having dealings with the objectionable person, and 
 induce others to do the same by applying the boycott to 
 them, they commit no crime and are liable for no civil 
 wrong. But the boycott, pure and simple, is very rarely 
 efficacious in bringing the employer or capitalist to terms; 
 and the boycotters, after trying for a while to keep within 
 the law respecting the rights of their powerful opponent, 
 soon are forced either to surrender to the enemy, or to do 
 
 I See ante, § 96. 
 
 » See ante, §§ 95, 96. 
 
 » See ante, § 96. 
 
 § 97 
 
254 POLICE EEGDLATIONS OF TRADES AND PROFESSIONS, 
 
 violence to his personal and property rights. It happened 
 thus in the great railroad strikes of the present year and in all 
 other prominent cases of boycott. A legitimate engine of 
 industrial warfare was turned into an illegal trespass upon 
 private right. And so it will always be in the absence of 
 police regulation. The sharp competition of modern trade ; 
 the rapid increase in the productivity of labor-saving 
 machines ; in fact, all the characteristics of modern industry 
 tend to sharpen the struggle for existence on the part of 
 the weaker ; and the latter has presented to him the alter- 
 native of barely eking out an existence on a mere pittance, 
 or wresting by unlawful means a more comfortable living 
 from those, who by a superior physical or intellectual 
 strength, or by chicanery, have been able to gather together 
 an undue share of the world's wealth, and public disorder and 
 general insecurity ensues. So far as we are able to fathom 
 the mysteries of social life, the whole social fabric is in 
 danger when the personal and property rights of the indi- 
 vidual are not afforded ample protection against unlawful 
 attacks. Public disorder, which is the ordinary accom- 
 paniment of the boycott, is also highly injurious to the 
 commonwealth. In accordance, therefore, with the maxim 
 salus populi suprema lex, the boycott may be prop- 
 erly prohibited by law. But, in the absence of a statute, 
 boycotts, when not accompanied by overt attacks upon per- 
 sonal or property rights, like all other strikes on the part 
 of labor organizations, are legal and cannot be suppressed 
 by law. 
 
 In consequence of the punishment of boycotters in New 
 York and in the United States courts, it has become the 
 popular impression that the boycott is, according to the 
 common law, a criminal offense. But this is a mistake. 
 On the statute books of New York, and of the United States, 
 there are statutes defining the crime of conspiracy, the> 
 « 97 
 
CONTRACTS AGAINST LIABILITT FOR NEGLIGENCE. 255 
 
 language of which is sufficiently broad to cover boycotting, 
 and to make it a criminal offense.^ 
 
 § 98. Contracts against liability for negligence pro- 
 hibited. — The liability for negligence is imposed by the 
 law, and does not arise out of the contract of the parties. 
 The duty, in the performance of which the negligence oc- 
 curred, may arise out of, and rest upon, contract j but the 
 exercise of care in the performance of a duty, whether the 
 duty is legal or contractual, is an obligation often of gen- 
 eral application. Ordinarily, the performance of a legal 
 duty, or the liability for an improper performance, may be 
 waived by agreement of the persons who may be affected 
 by it. The law does not ordinarily compel persons to avail 
 themselves of the protection it affords them. But where 
 the duty is of so general a nature, as that the proper per- 
 formance of it, even where the private individual is most 
 affected by it, becomes a matter of public policy, the right 
 may very properly be denied to the private individual to re- 
 lieve by contract from the liability for improper performance. 
 A private person, probably, cannot be forced to sue on the 
 tort, but the law may declare void any contract, by which 
 he relieves the person, on whom the duty rests, from lia- 
 bility. This is the rule at common law in respect to liability 
 for negligence. No man can by contract relieve himself 
 from liability for negligence in the performance of any duty 
 
 1 See ante, § 96. In 2 Kev. Stat. N. T. 691, § 8, it is declared to be a 
 punishable conspiracy to combine " to commit any act injurious to the 
 public health, to public morals, or to trade or commerce, or for the per- 
 version or obstruction ol justice, or the due administration of the laws." 
 So, also, is it declared by the United States Revised Statutes (§ 5407, p. 
 1052) to be a criminal conspiracy, "if two or more persons in any State or 
 Territory conspire lor the purpose of impeding, hindering, obstructing, or 
 defeating, in any manner, the due course of justice in any State or Terri- 
 tory, with intent to deny to any citizen the equal protection of the laws, 
 or to injure him or his property for lawfully enforcing or attempting to 
 enforce, the right of any person, or class of persons, to the equal pro- 
 tection of the laws." See also, §§ 1977 1991, 2004-2010, 5506-5610. 
 
 § 98 
 
256 POLICE REGULATIONS OP TRADES AND PROFESSIONS. 
 
 to the public generally, or to a particular individual, whether 
 the duty arises out of a contract or is imposed by the law, 
 but particularly so where the law injposes the duty. This 
 restriction upon the contracts of individuals has particular 
 application to contracts with common carriers and telegraph 
 companies. In respect to the common carrier, the common 
 law imposed the obligation to guarantee the safe delivery of 
 the goods intrusted to his care for transportation, and he is 
 liable for the failure to deliver them at the place of desti- 
 nation in every case, except where they are proven to have 
 been destroyed by the intervention of some unavoidable 
 natural agency, or by the act of the public enemy. The 
 exercise of the highest degree of care constitutes no defense. 
 Public policy requires the imposition of this extraordinary 
 obligation.^ But the imposition of this extraordinary obli- 
 gation is not deemed to be so far required by public policy, 
 
 1 Coggs V. Bernard, 2 Ld. Raym. 909 ; Railroad v. Reeves, 10 Wall. 
 176 ; Bulkley v. Naumkeag, etc., Co., 24 How. 386 ; Fillebrown v. Grand 
 Trunk, etc., Co., 55 Me. 462; Caldwell v. N. J. Steamboat Co., 47 N. T. 
 282; Orange Co. Bk. v. Brown, 9 Wend. 85; Hayes v. Kennedy, 41 Pa. 
 St. 378; Morrison v. Davis, 20 Pa. St. 171 ; Boyle v. McLaughlin, 4 H. & 
 J. 291; New Brunswick, etc., Co. ©.Tiers, 24 N. J. 697; Friend ». Woods, 
 6 Gratt. 139 ; Swindler v. Hilliard, 2 Rich. 286 ; Tarney v. Wilson, 7 Terg. 
 540; Powell v. Mills, 30 Miss. 231; Chicago, etc., R. R. Co. v. Sawyer, 
 69 111. 285 ; Merchants' Dispatch Co. v. Smith, 76 111. 542 ; McMillan e. 
 Michigan, etc., R. R. Co., 16 Mich. 79; Bohannan v. Hammond, 42 Cal. 
 227. The exceptions to this general liability as an insurer are usually 
 stated to be "the act of God, or of the public enemy." The " act of God" 
 means any natural cause, which could not be avoided by human foresight. 
 "What is precisely meant by the expression ' act of God ' as used in the 
 case of common carriers, has undergone discussion, but It is agreed that 
 the notion of exception is those losses and injuries occasioned exclusively 
 by natural causes, such as could not be prevented by human care, skill, and 
 foresight. All the cases agree in requiring the entire exclusion of human 
 agency from the cause of the injury or loss. If the loss or Injury happen 
 in anyway through the agency of man, it can not be considered the act 
 of God; nor even if the act or negligence of man contributes to bring or 
 leave the goods of the carrier under the operation of natural causes that 
 work to their injury, is he excused. In short, to excuse the carrier, the act 
 of God, or vis divina, must be the sole and immediate cause of the Injury. 
 If there be anv co-operation of man, or any admixture of human means, 
 § 98 
 
CONTRACTS AGAINST LIABILITY FOE NEGLIGENCE. 257 
 
 as that parties may not be permitted by contract to release 
 the carrier from it. Common carriers may limit their com- 
 mon-law liability to acts of negligence by contract with the 
 consignor. But the contract must be freely and voluntarily 
 made. The carrier cannot refuse to take goods for carriage 
 under the common-law liability, if the consignor should 
 refuse his assent to a limitation.^ But public policy would 
 not permit the enforcement of a contract, which not only 
 Teleased the carrier of his common-law liability as an in- 
 surer, but likewise from the consequences of his negligence. 
 It is the almost invariable rule of law in the United States, 
 that common carriers are forbidden to relieve themselves 
 by contract from liability for injuries caused by the negli- 
 gence of the carrier or his servants. This is the rule of 
 law, whether the carrier be a natural person or a corpora- 
 tion.* In New York and New Jersey, it has been held not 
 
 the injury is not, in a legal sense, the act of God." Wright, J., in 
 Michaels v. N. J. Cent. B. R. Co., 30 N. Y. 671. 
 
 1 New Jersey Steam Na^. Co. v. Merchant's Bank, 6 How. 344; EaQ- 
 roadCo. ». Manufacturing Co., 16 Wall. 318; FlUebrowne e. Grand Trunk 
 B. Co., 56 Me 462; Brown v. Eastern B. Co., 11 Cnsh. 97; Buckland v. 
 Adams Express Co., 97 Mass. 124; HoUister v. Nowlen, 19 Wend. 234; 
 Bennett v. Button, 10 N. H. 481; McCoy v. Erie, etc., B. B. Co., 42 Md. 
 498; Smith ».N.C.E.R., 64 N.C. 235; Southern Express Co. u. Caperton, 
 ■44 Ala. 101 ; Jones v. Voorhees, 10 Ohio, 145 ; McMillan v. Michigan, 
 etc., E. E., 16 Mich. 79. 
 
 * New Jersey, etc., Co. v. Merchants' Bk., 6 How. 344; York Co. v. 
 Central B. B. Co., 3 Wall. 107; Sager v. Portsmouth, etc., E. E. Co., 31 
 Me. 228; School Dist. ». Boston, etc., B. B. Co., 102 Mass. 552; Camden, 
 etc., E. E. V. Baldauf, 16 Pa. St. 67; Bickham v. Smith, 62 Pa. St. 45; 
 Delaware, etc., B. B. v. Starrs, 69 Pa. St. 36; Welch v. Boston, etc., B. 
 E., 41 Conn. 333; Virginia, etc., B. B. v. Sayers, 26 Gratt. 328; Smith v. 
 N. C. E. B., 64 N. C. 235 ; Swindler v. Hilliard, 2 Eich. 286 ; Berry v. 
 Cooper, 28 Ga. 543; Indianapolis, etc., E. E. v. Allen, 31 Ind. 394; 
 Southern Express v. Moon, 39 Miss. 822; Gaines b. Union Transp. Co., 
 28 Ohio St. 418; Great West. E. E. v. Hawkins, 17 Mich. 67; s. c. 18 
 Mich. 427; Adams Exp. Co. v. Stettaners, 61 111. 174; Sturgeon v. St. 
 liOuis, etc., E. E., 65 Mo. 669; South, etc., R E. v. Henlein, 62 Ala. 606; 
 Mo. Val. E. E. V. Caldwell, 8 Kan. 244; N. O. Ins. Co. v. N. O., etc., B. 
 K., 20 La. Ann. 302; Hooper v. Wells, 27 Cal. 11. 
 
 17 § 98 
 
258 POLICE REGULATIONS OF TRADES AND PROFESSIONS. 
 
 to be against public policy for common carriers to make 
 contracts, whereby to release themselves from liability 
 for the negligence of their servants, although it is for- 
 bidden them to divest themselves of responsibility for 
 their own negligence ; and in the case of railroad corpora- 
 tions this principle has been carried so far as to enable a 
 release from liability for the negligence of every agent of 
 the corporation, except the board of directors.^ The prohi- 
 tion of contracts in release of liability for negligence is the 
 same, whether it refers" to the carriage of goods or of pas- 
 sengers. In the latter cases, such contracts* are against 
 public policy, and, therefore, void, even where the pas- 
 senger is traveling on a free pass, whether the pass is 
 given in conjunction with the transportation of freight for 
 hire, as in the case of " drover's passes,"^ but also where 
 it is given as a matter of courtesy.^ The cases generally 
 maintain that the common carrier is held to the same degree 
 of care, whether the carriage is gratuitous or for a consid- 
 eration, but it would sfeem but natural to require of the 
 common carrier, in cases of free passes, only that degree 
 of care, which is required of all bailees, where the bailment 
 is exclusively for the benefit of the bailor, viz. : slight care,, 
 and it has been so held in Illinois.* 
 The same restriction against contractual releases from 
 
 1 Wells V. N. T. Cent.E. R., 24 N. Y. 181; Perkins c.N. Y.CeDt.B. E., 
 24 N. Y. 197; Smith v. N. Y. Cent. R. E., 24 N. Y. 222; BisseU v. N. Y. 
 Cent. R. E., 25 N. Y. 442; Poucher v. N. Y. Cent. R. E., 49 N. Y. 263; 
 Kinney v. Cent. E. E., 32 N. J. 407; s. c. 34 N. J. 513. 
 
 2 Railroad Co. v. Lockwood, 17 Wall. 357; Cleveland, etc., E. E. v, 
 Cnrran, 19 Ohio St. 1; Ohio, etc., E. E. v. Selby, 47 Ind. 471. 
 
 » Philadelphia, etc., E. E. v. Derby, 14 How. 468 ; Pa. E. E. Co. v. 
 Butler, 57 Pa. St. 335; Ind. Cent. E. E. v. Mundy, 21 Ind. 48; Jacobus o. 
 St. Paul, etc., E. E., 20 Minn. 125. 
 
 < " While we hold this argument did not exempt the railroad company 
 from the gross negligence of Its employees, we are free to say that it does 
 exempt it from all other species or degrees of negligence not denomi- 
 nated gross, or which might have the character of recklessness." 111. 
 Cent. E. E. v. Read, 37 111. 484. 
 § 98 
 
WAGERING CONTRACTS PROHIBITED. 259 
 
 liability for negligence has been applied to telegraph com- 
 panies, but with a notable exception. The general rule, 
 that one can not by contract relieve himself from responsi- 
 bility for negligence, applies. But in consequence of the 
 great liability to the commission of errors in the transmis- 
 sion of messages ; arising from the limited control over the 
 electrical current, and the great exposure to accidents to the 
 wires, and to the electrical apparatus at both ends ; it has 
 very generally been held to be a reasonable and permissi- 
 ble stipulation, that the telegraph company will not be re- 
 sponsible for errors in transmission of messages, whether 
 they arise from the intervention of natural causes or the 
 negligence of the operators, unless the message is repeated. 
 Such a contract would be equivalent to an agreement to 
 send the message for a less sum, upon condition of being 
 relieved from liability for errors or delays.^ 
 
 Section 99. Wagering contracts prohibited. 
 99a. Option contracts, when illegal. 
 
 § 99. Wagering contracts probibited. — At all times* 
 in the history of the English and American law, gambling 
 of every variety has been the subject of police regulation. 
 
 1 McAndrew v. Electrical Tel. Co., 17 C. B. 3; Grinnell v. West.. 
 Union Tel. Co., 113 Mass. 299 (18 Am. Rep. 486) ; True ». Int. Tel. Co., 
 60 Me. 9; Young v. West. Union Tel. Co., 65 N. Y. 163; Passmore o. 
 W. U. Tel. Co., 78 Pa. St. 238 ; Berney v. N. Y., etc., Tel. Co., 18 Md. 341 ; 
 W. U. Tel. Co. V. Carew, 16 Mich. 626. In Illinois, it is not permitted 
 to telegraph companies to stipulate that they will not be responsible for 
 errors arising solely from the negligence of the operators. They caa 
 stipulate against liability for errors, only where they occur through some 
 natural cause beyond the company's control. Tyler v. West. Union Tel. 
 Co., 60 111. 421 (14 Am. Eep. 38) ; West. Union Tel. Co. v. Tyler, 74 III. 
 168. See Wann v. West. Union Tel. Co., 37 Mo. 472; Sweatland v. 111., 
 etc., Tel. Co., 27 Iowa, 432; Candee v. West. Union Tel. Co., 34 Wis. 471; 
 West. Union Tel. Co. v. Graham, 1 Col. 230. In the last case it was held 
 that the condition against liability, where the message is not repeated, i» 
 no defense In an action for failure to deliver. 
 
 § 99 
 
260 POLICE EEQULATIONS OF TRADES AND PROFESSIONS. 
 
 The lower and more common forms of gambling, when con- 
 ducted as a business, are now uniformly prohibited and the 
 prosecution of them made a penal offense. Ordinarily, 
 however, wagers or bets are only so far prohibited or regu- 
 lated that the courts refuse to perform the contracts. In- 
 dependently of statute, no wager of any kind constitutes a 
 penal offense. It requires statutory legislation to make 
 betting a misdemeanor. Indeed, such legislation would be 
 open to serious constitutional objections. Gambling or bet- 
 ting of any kind is a vice and not a trespass, and inasmuch 
 as the parties are willing victims of the evil effects, there is 
 nothing which calls for public regulation.* But when they 
 pursue gambling as a business, and set up a gambling house, 
 like all others who make a trade of vice, they may be pro- 
 hibited and subjected to severe penalties,^ And so, also, if 
 they apply to the courts for aid in enforcing the contracts 
 made in the indulgence of this vice, the courts can properly 
 refuse to assist them. 
 
 A wager or bet, according to Mr. Bouvier, is " a contract 
 by which two parties or more agree that a certain sum of 
 money or other things, shall be paid or delivered to one of 
 them on the happening, or not happening, of an uncertain 
 event." Employing the word in this sense, it is pretty 
 well settled that all wager contracts were not void at 
 common law. The distinction between the legal and the 
 illegal wagers seems to rest upon the good or evil character 
 of the event or act, which constitutes the subject-matter of 
 the wager. If the wager was about a harmless and legal act 
 or event, the wager was itself legal, and the wager contract 
 could be enforced.^ But if the wager has reference to the 
 
 1 See, ante, § 68. 
 
 2 See, post, § 102. 
 
 3 Thus it was lawful at common law, to bet that A. has purchased a 
 wagon of B. (Good v. Elliott, 3 T. E. 693) ; or to bet on a cricket-match. 
 Walpole V. Saunders, 16 E. C. L. R. 276. See, also, generally, in support 
 of the position taken above, Sherborne v. Colebach, 2 Vent. 176; Hussey 
 
 § 99 
 
WAGERING CONTRACTS PROHIBITED. 261 
 
 happening or doing of some act which is illegal or against good 
 morals, the wager is void and will not be enforced.^ In no 
 part of the civilized world are contracts for the insurance of 
 life or property against accidental destruction held to be 
 invalid. 
 
 The English doctrine is clearly sustained, as a part of the 
 common law, by the decision of some of the American 
 courts.^ But, except in the matter of insurance contracts, 
 all wager contracts are declared to be invalid in Maine, Mas- 
 sachusetts, New Hampshire, Vermont, and Pennsylvania, 
 whatever may be the character of the event or act, which 
 constitutes the foundation for the wager.^ In many of the 
 States the common law is changed by statutes which pro- 
 hibit all wager contracts, and forbid their enforcement by 
 the courts. Thus, by the New York Revised Statutes,* 
 " all wagers, bets, or stakes, made to depend upon any race, 
 
 ». Crickell, 3 Campb. 168; Grant ». Hamilton, 3 M. L. 100; Cousins v. 
 Mantes, 3 Taunt. 515; Johnson v. Lonsley, 12 C. B. 468; Dalby v. India 
 Life Ins. Co., 15 C. B. 365; Hampden v. Walsli, L. R. 12 B. D. 192. 
 
 1 ThuSj wagers are void, which rest upon the result of an illegal game 
 (Brown «. Leeson, 2 H. Bl. 43) ; which involve the abstinence from mar- 
 riage (Huntley c. Rice, 10 East. 22) ; which refer to the expected birth of 
 an illegitimate child (Ditchburn v. Goldsmith, 4 Campb. 152) ; or to the 
 commission of adultery. Del Costa v. Jones, Comp. 729. See, also, to 
 the same effect, Shirley w. Sankey, 2 Bos. & P. 130; Etham v. Eingsman, 
 1 B. & Al. 684. 
 
 2 Bunn V. Rikes, i Johns. 426 ; Campbell v. Richardson, 10 Johns. 406 
 Dewees v. Miller, 6 Harr. 347; Trenton Ins. Co. v. Johnson, 4 Zabr. 576 
 Dunman v. Strother, 1 Tex. 89; Wheeler ?>. Friend, 22 Tex. 683; Monroe 
 V. Smelley, 25 Tex. 586; Grant b. HamUton, 3 McLean (U. S. C. C), 100 
 Smith V. Smith, 21 111. 244 ; Richardson v. Kelley, 85 111. 491 ; Petillon v 
 Hippie, 90 111. 420; Carriers. Brannan, 3 Cal. 328; Johnsono. Hall, 6 Cal 
 359; Johnson v. Russell, 37 Cal. 670. 
 
 See Lewis v. Littlefleld, 15 Me. 233 ; McDonough v. Webster, 68 Me 
 530; Gilmore v. Woodcock, 69 Me. 118; Babcock «. Thompson, 3 Pick 
 446; Ballv. Gilbert, 12 Met. 399; Sampson v. Shaw, 101 Mass. 150; Per- 
 kins V. Eaton, 3 N. H. 152; Clark v. Gibson, 12 N. H. 386; Winchester v 
 Nutter, 52 N. H. 507 ; Collamer v. Day, 2 Vt. 144 ; Tarlton v. Baker, 18 
 Vt. 9; Phillips v. Ives, 1 Rawle, 36; Brua's Appeal, 5 Sm. 294. 
 * 1 Rev. Stats. N. Y. 661, § 8. 
 
 § 99 
 
262 POLICE REGULATIONS OF TRADES AND PROFESSIONS. 
 
 or upon any gaming by lot or chance, casualty, or unknown 
 or contingent event whatever, shall be unlawful. All con- 
 tracts for, or on account of, any money or property or 
 thing in action so wagered, bet or staked shall be void."^ 
 It is to be observed, that in all of these judicial and 
 legislative determinations of the illegality of wagering con- 
 tracts, although they differ in respect to the legality of par- 
 ticular wagers, they all rest upon the proposition that the 
 prohibited wagers tend to develop and increase the spirit of 
 gambling and at the same time serve no useful purpose. 
 For these reasons all contracts, based upon such wagers, 
 are declared to be illegal. Inasmuch as insurance contracts 
 serve a useful purpose, they are not prohibited; and it is 
 not likely that a law, prohibiting them, would be sustained. 
 It is, therefore, the evil effect of betting, coupled with its 
 practical uselessness, that justifies its prohibition ; for all 
 unobjectionable contracts have, as an incident of property, 
 an inalienable right to S9me effective remedy in the courts 
 of the country.^ 
 
 § 99a. Option contracts, when illegal. — The common 
 forms of gambling are not difficult to define or distinguish 
 from harmless or unobjectionable transactions. The en- 
 forcement of the law against gambling in such cases is not 
 trammeled with confusion as to what constitutes the 
 gravamen of the offense. It is the staking of money on the 
 issue of games of chance, or on the happening or not hap- 
 pening of a contingent event or act, in those cases in which 
 the wager does not promote a public or private good. For 
 many years, in all parts of the commercial world, a species 
 of commercial gambling has been devised and developed, and 
 which is still increasing in proportions. Large bodies of 
 men in our commercial centers congregate daily in the ex- 
 
 1 Similar legislation Is to be found In New Hampshire, Virginia, West 
 Virginia, Wisconsin, Missouri, Illinois, Olilo and Iowa, and other States. 
 * See, posJ, § 142. 
 
 § 99a 
 
OPTION CONTRACTS, WHEN ILLEGAL. 263 
 
 changes for the purpose of betting on the rise and fall in the 
 price of stocks, cotton, and produce. The business is dis- 
 guised under the name of speculation, but it is in nothing 
 different from the wager on the result of some game of 
 cards. The card player bets that he will win the game. 
 The merchant, dealing in " futures," bets that the price of 
 a commodity will, at a future day, be a certain sum, more 
 or less than the ruling market price. In neither case does 
 the result add anything to the world's wealthy there is only 
 an exchange of the ownership of property without any 
 benefit to the former owner. In the liquidation of both bets 
 A. passes over to B. a certain proportion of his property. 
 Under the guise of speculation, it is given an air of respec- 
 tability which makes the indulgence in it all the more 
 dangerous to the public welfare. The disreputable char- 
 acter of the common forms of gambling, made so by 
 public condemnation, is the chief protection against 
 the evil. But men of respectability are engaged in 
 option dealing ; and the apparent respectability of the 
 business develops, to a most alarming extent, the gam- 
 bling spirit in all classes of society. Instead of striv- 
 ing to produce something that will increase the world's 
 wealth, while they accumulate their own, these men are 
 bending every energy, and taxing their ingenuity, to take 
 away what his neighbor has already produced. Apart from 
 this' injury to the public material and moral welfare, the 
 commercial gambling, when developed to its present enor- 
 mous proportions, unsettles the natural values of commodi- 
 ties, and the fate of the producer is made to depend upon 
 the relative strength of the "bulls" and "bears." 
 Conceding the truth of these charges, and the evil effect 
 of this species of gambling which has never been seriously 
 questioned , it would be a legitimate exercise of police power 
 to prohibit these commercial transactions. The difficulty lies 
 not in the justification of this prohibitory legislation, but in 
 'discovering the wrongful element in the transactions, and iu 
 
 § 99a 
 
264 POLICE EEGULATIONS OF TRADES AND PROFESSIONS. 
 
 distinguishing them from legitimate trading. The so-called!. 
 " option contracts " are in form contracts for the sale or 
 purchase of commercial commodities for future delivery, at 
 a certain price, with the option to one or both of the par- 
 ties in settlement of the contract to pay the difference 
 between the contract price, and the price ruling on the day 
 of delivery, the difference to be paid to the seller, if the 
 market price is lower than the contract price, and to the 
 purchaser, if the market price is higher. Such a contract 
 has three striking elements : first, it is a contract for future 
 delivery ; secondly, the delivery is conditional upon the will 
 of one or both of the parties ; and thirdly, the payment of 
 differences in prices, in the event that the right of refusal 
 is exercised by one of the parties. If the common-law 
 offense of regrating were still recognized in the criminal 
 law, all contracts for future delivery may be open to serious 
 question.^ But that rule of the common law is repudiated, 
 and it may now be considered as definitely settled that a 
 contract for future delivery of goods is not for that reason, 
 invalid. If they infringe the law, it must be for some other 
 reason than that the contract stipulates for future delivery. 
 This is not only true, when the vendor has the goods in his 
 possession at the time of sale, but also when he expects to 
 buy them for future delivery. Lord Tenterden claimed 
 that in the latter case the contract was a wager on the price 
 of the commodity, and for that reason should not be en- 
 forced. '^ But the position here taken has since been 
 
 1 See ante, § 95. 
 
 * " I have always thought, and shall continue to think until I am told 
 by the House of Lords that I am wrong, that if a man sells goods to 
 be delivered on a future day, and neither has the goods at the time, nor 
 has entered into any prior contract to buy them, nor has any reasonable 
 expectation of receiving by assignment, but means to go into the market 
 and to buy the goods which he has contracted to deliver, he cannot main- 
 tain an action on such contract. Such a contract amounts, on the part of 
 the vendor, to a wager on the price of the commodity, and is attended. 
 § 99a: 
 
OPTION CONTRACTS, WHEN ILLEGAL. 265 
 
 repudiated by the English courts, on the ground that it is 
 not a wager, and if a wager, not one which tends to injure 
 the public.^ The late English opinion is generally followed 
 in the United States, and it may be stated, as the general 
 American rule, that bona fide contracts for the future de- 
 livery of goods are not invalid, because at the time of sale 
 the vendor has not in his actual or. potential possession the 
 goods which he has agreed to sell.^ 
 
 It is also held to be an unobjectionable feature in such 
 contracts, that the vendee has no expectation of receiving 
 the goods purchased into his actual possession, but intends 
 to resell them before the delivery of the possession to him.* 
 
 with the most mischievous consequences." Lord Tenterden in Bryan v. 
 Lewis, Eeq. & Moody, 386. See, also, Longmer v. Smith, 1 B. & C. 1. 
 
 1 " I have always entertained considerable doubt and suspicion as to 
 the correctness ol Lord Tenterden's doctrine in Bryan o. Lewis. It ex- 
 cited a good deal of surprise in my mind at the time, and when examined, 
 I think it is untenable. I cannot see what principle of law is at all 
 affected by a man's being allowed to contract for the sale of goods, of 
 which he has not possession at the time of the bargain, and has no reason- 
 able expectation of receiving. Such a contract does not amount to a 
 wager, inasmuch as both the contracting parties are not in the vendor's 
 possession; and even if it were a wager, it is not illegal, because it has 
 no necessary tendency to injure third parties." Baron Parke in Hibble- 
 white H. McMorine, 6 M. & W. 68. See Mortimer v. McCallan, 6 M. & W. 
 58; Wells v. Porter, 3 Scott, 141. 
 
 2 Head v. Goodwin, 37 Me. 181 ; Eumsey ®. Berry, 65 Me. 570; Lewis «. 
 Lyman, 22 Pick. 437; Thrall o. HUl, 110 Mass. 328; Heald ». BuUders' 
 Ins. Co., Ill Mass. 38; Smith v. Atkins, 18 Vt. 461; Noyes v. Spaulding, 
 27 Vt. 420; Hull v. Hull, 48 Conn. 260; Hauton v. SmaU, 3 Sandf. 230; 
 Cnrrie v. White, 45 N. Y. 822; Bigelow v. Benedict, 70 N. Y. 202; Bina's 
 Appeal, 66 Pa. St. 294 ; Brown v. Speyer, 20 Gratt. 309 : Phillips v. 
 Ocmulgee Mills, 56 Ga. 633 ; Noyes v. Jenkins, 65 Ga. 586 ; Fonville ». 
 Casey, 1 Murphy, 389; Whitehead v. Root, 2 Mete. (Ky.) 584; McCarty v. 
 Blevins, 13 Tenn. 195; Wilson v. Wilson, 37 Mo. 1; Logan v. Musick, 81 
 111. 415; Pixley u. Boynton, 79 111.351; Pickering v. Cease, 79 111.328; 
 Lyon o. Culbertson, 83 HI. 33; Corbett v. Underwood, 83 111. 324; San- 
 born o. Benedict, 78 HI. 309; Wolcott v. Heath, 78 III. 433. 
 
 ' Ashton V. Dakin, 4 H. & N. 867; Sawyer, Wallace & Co. v. Laggart, 
 14 Bush, 730; Cameron v. Durkheim, 55 N. Y. 426. But see contra, Brua's 
 Appeal, 55 Pa. St. 294 ; Fareira v. Gabell, 89 Pa. St. 89 ; North v. Phillipa 
 89Pa. St. 250, 
 
 § 99a 
 
266 POLICE REGULATIONS OF TRADES AND PROFESSIONS. 
 
 To quote the words of the Kentucky court, " sales for 
 future delivery have long been regarded and held to be in- 
 dispensable in modern commerce, and as long as they 
 continue to be held valid, one who buys for future delivery 
 has as much right to sell as any other person, and there 
 cannot, in the very nature of things, be any valid reason 
 why one who buys for future delivery may not resolve, 
 before making the purchase, that he will resell before the 
 day of delivery, and especially when, by the rules of trade 
 and the terms of his contract, the person to whom he sells 
 will be bound to receive the goods from the original seller, 
 and pay the contract price." ^ 
 
 Nor is a contract necessarily hurtful to the public wel- 
 fare, which provides on payment of a valuable consideration 
 that one at a future day shall have the right to buy certain 
 property or sell other property, according as one or the 
 other happens to be advantageous to him. One may have 
 a lawful and beneficial end in view in acquiring such a right 
 of refusal.* " Mercantile contracts of this character are not 
 infrequent, and they are consistent with a bona fide inten- 
 tion on the part of both parties to perform them. The 
 vendor of goods may expect to produce or acquire them in 
 time for a future delivery, and, while wishing to make a mar- 
 ket for them, is unwilling to enter into an absolute obliga- 
 tion to deliver, and therefore bargains for an option which, 
 while it relieves him from liability, assures him of a sale, 
 in case he is able to deliver ; and the purchaser may, in the 
 same way, guard himself against loss beyond the considera- 
 tion paid for the option, in case of his inability to take the 
 goods, there is no inherent vice in such a contract." ^ And 
 
 ' Sawyer et al. v. Taggart, 14 Bnsh, 730. 
 
 2 Story V. Salomon, 71 N. Y. 420; Kingsbury v. Klrwan, 71 N. T. 612; 
 Harris v. Lumbridge, 83 N. Y. 92; Bigelow v. Benedict, 70 N. Y. 202. 
 
 2 Bigelow V. Benedict, 70 N. Y. 202. In this case, A., for a valuable 
 consideration, agreed to purchase gold coin of B. at a named price, the 
 coin to be delivered at any time within six months that B. might choose. 
 
 § 99o 
 
OPTION CONTRACTS, WHKN ILLEGAL. 267 
 
 the consideration for this option may very properly be the 
 difference between the ruling market price and the price 
 specified in the contract. For that would be the damage to 
 the other party resulting from the sale of the option or re- 
 fusal.^ 
 
 If each of the preceding propositions is correct, then the 
 illegality of option contracts must rest upon the intention 
 of the parties not to deliver the goods bargained for, but 
 merely to pay the difference between the market price and 
 contract price. The cases are unanimous in the opinion 
 that a contract, for the payment of difference in prices, 
 arising out of the rise and fall ia the market price above or 
 below the contract price, is a wager on the future price of 
 the commodity, and is therefore invalid.^ If the contracts 
 ■were in form, as well as in fact, agreements to pay the dif- 
 ference in prices, they could be easily avoided, and thrown 
 out of court. But the contracts never assume the form of 
 wagers on the price of the commodity. They are always 
 in form undistinguishable from those option contracts, in 
 
 This case, as a legitimate transaction, is more easily understood than 
 where the option is to buy certain goods or to sell%thers, but the latter 
 ■can exist under lawful circumstances and have a lawful end in view. See 
 -Story V. Salomon, 71 N. Y. 420. 
 
 1 Story V. Salomon, 71 N. Y. 420; Harris v. Lumbridge, 83 N. Y. 92, and 
 the cases cited in the next note. 
 
 * Eumsey v. Berry, 65 Me. 574 ; Wyman v. Fiske, 3 Allen, 238 ; Brigham v. 
 Meade, 10 Allen, 246; Barratt v. Hyde, 7 Gray, 160; Brown v. Phelps, 103 
 Mass. 303; Hatch v. Douglass, 48 Conn. 116; Noyes b. Spaulding, 27 Vt. 
 240; Story v. Salomon, 71 N. Y. 420; Bigelow t). Benedict, 70 N. Y. 202; 
 Harris v. Lumbridge, 83, 82, N. Y. 92; North i;. Phillips, 89 Pa. St. 250; 
 Kuchizky v. De Haven, 97 Pa. St. 202; Dickson's Ex'oru. Thomas, 97 Pa. 
 St. 278 ; Kirkpatrick v. Bonsall, 72 Pa. St. 155 ; Brown v. Speyer, 20 Gratt. 
 296; Williams ». Carr, 80 N. C. 294; Williams v. Tiedemann, 6 Mo. App. 
 269; Lyon e. Culbertson, 83 111. 33; Cole v. Milmine, 88 111. 349; Corbitt 
 V. Underwood, 83 111. 324; Pickerings. Cease, 79 111. 338; Pixley ». 
 Boynton, 79 111. 351; Barnard v. Backhouse, 62 Wis. 593; Sawyer v. 
 Taggert, 14 Bush, 727; Gregory o. Wendall, 39 Mich. 337; Shawc. Clark, 
 49 Mich. 384; Gregorys. Wattoma, 58 Iowa, 711; Everinghamo. Meighan, 
 55 Wis. 354; Rudolphs. Winters 7 Neb. 125. 
 
 § 99a 
 
268 POLICE EEGULATIONS OP TRADES AND PROFESSIONS. 
 
 which the parties in good faith have bargained for the re- 
 fusal of the goods, and which are valid contracts. The fol- 
 lowing is a good illustration of the ambiguity of the form 
 of the contract. "For value received, the bearer (S.) 
 may call on the undersigned for one hundred (100) shares 
 of the capital stock of the Western Union Telegraph Com- 
 pany, at seventy-seven and one-half (771/2) per cent, at 
 any time in thirty (30) days from date. Or the bearer may, 
 at his option, deliver the same to the undersigned at 
 seventy-seven and one-half (77V2) per cent., any time 
 within the period named, one day's notice required." ^ 
 There is no evidence on the face of this contract of the 
 determination of the parties to settle on the dijBEereuces in 
 price ; and while such a contract may be used as a cover for 
 commercial gambling, it is not necessarily a wager on the 
 future price of the commodity. 
 
 It is the ordinary rule of law that where a writing is 
 susceptible of two constructions, one of which is legal, and 
 the other illegal, that construction will prevail, which is in 
 conformity with the law.^ Applying this rule to the con- 
 struction of option contracts, it has very generally been 
 held that these aentracts are valid and enforcible, unless it 
 be proven affirmatively that the parties did not intend to 
 make a delivery of the goods bargained for, but to settle 
 on the differences.' And if it be shown that only one of 
 the parties entertained this illegal intention, while the other 
 acted in good faith, the contract will be void as to the 
 
 1 Story V. Salomon, 71 N. Y. 420. 
 
 ' " It is a general rule, that wheresoever the words of a deed, or of 
 the parties without deed, may have a double intendment, and the one 
 standeth with law and right, and the other is wrongful and against law, 
 the intendment that standeth with the law shall be taken." Coke on 
 Lyttleton, 42, 183. 
 
 ° Story V. Salomon, 71 N. Y. 420; Kingsbury v. Kirwan, 71 N. Y. 612; 
 Harris v. Lumbrldge, 83 N. Y. 92; Williams v. Tledemann, 6 Mo. App. 
 274; Union Nat. Bank of Chicago v. Carr, 15 Fed. Bep. 438; and cases 
 cited in preceding note. 
 
 § 99a 
 
OPTION CONTRACTS, WHEN ILLEGAL. 269 
 
 first, but will be enforcible in behalf of the second.'^ In 
 delivering the opinion of the New York Court of Appeals^ 
 Earl, J. said: "On the face of the contract the plaint- 
 iff provided for the contingency that on that day he 
 might desire to purchase the stock, or he might desire to 
 sell it, and in either case there would have to be a delivery 
 of the stock, or payment in damages in lieu thereof. We 
 should not infer an illegal intent unless obliged to. Such a 
 transaction, unless intended as a mere cover for a bet or 
 wager on the future price of the stock, is legitimate and 
 condemned by no statute, and that it was so intended was 
 not proved. If it had been shown that neither party in- 
 tended to deliver or accept the shares, but merely to pay 
 differences according to the rise or fall of the market, the 
 contract would have been illegal." This rule of construc- 
 tion is adopted by most of the courts, in determining the 
 legality of these questionable contracts, but a different rule 
 has been laid down by the Supreme Court of Wisconsin. 
 The contract, which constituted the subject of the suit, was 
 in form a legitimate transaction, and there was no proof 
 that it was used as a cover for commercial gambling. The 
 court declared it to be the duty of the plaintiff to show 
 that he had made a bona fide contract for the delivery of 
 the commodities bought and sold, instead of throwing 
 upon the defendant the burden of proving that the contract 
 was made for the payment of differences in price, and did 
 not contemplate any delivery of the grain. The court 
 claimed that it would ' ' not do to attach too much weight or 
 importance to the mere form of the contract, for it is quite 
 certain that parties will be as astute in concealing their in- 
 tention, as the real nature of the transaction, if it be illegal'.' 
 It may be safely assumed, that the parties will make such 
 contracts valid in form ; but courts must not be deceived 
 
 1 Kumsey v. Berry, 65 Me. 570 ; Williams v. Carr, 80 N. C. 94; Sawyer 
 etal. V. Taggert, U Bush, 727; Gregorys. Wendall, 39 Mich. 337. 
 ' Story V. Salomon, supra. 
 
 § 990! 
 
270 POLICE REGULATIONS OF TRADES AND PROFESSIONS. 
 
 by what appears on the face of the agreement. It is of tern 
 necessary to go behind, or outside of, the words of the 
 contract — to look into the facts and circumstances which 
 attended the making of it — in order to ascertain whether 
 it was intended as a bona fide purchase and sale of the 
 property, or was only colorable. And to Justify a court 
 in upholding such an agreement, it is not too much to re- 
 quire a party claiming rights under it, to make it satisfac- 
 torily and affirmatively appear that the contract was made 
 with an actual view to the delivery and receipt of grain, 
 not as an evasion of the statute against gaming, or as a 
 cover for a gambling transaction."^ The power of the 
 legislature to change this rule of construction, and to throw 
 the burden of proof of the legality of the contract upon the 
 party asserting it, cannot be questioned. But it is not 
 within the power of the court to change it, as was done by 
 the Wisconsin court. For the effective prevention of this 
 commercial gambling, this change is most needful, and with 
 one other regulation, which will be suggested here, the 
 prohibition can be made as effective as any prohibition of 
 an act, which operates as a trespass only indirectly through 
 its injurious eflfects. The other needful regulation would 
 be the prohibition of all contracts of sale for future deliv- 
 ery, where the vendor has neither the actual, constructive, 
 nor potential possession of the goods sold. A man has an 
 absolute right, in his personal or representative capacity, 
 to sell for future delivery any goods which he may have in 
 his actual or constructive possession, or which he may 
 have the present capacity of acquiring at some future day. 
 One has the right to sell commodities which he has pur- 
 chased from another for future delivery, or to sell a grow- 
 ing or other future crop, or the flour that his mill will 
 grind during a stated period. But one can serve no useful 
 
 I Barnard v. Backhons, 52 Wis. 693. See, to the same effect, Cobb. 
 V. Prell, 15 Fed. Rep. 774. 
 
 § 99a 
 
LICENSES. 271 
 
 end by selling goods for future delivery, goods which he 
 does not own, and . which he does not expect to possess. 
 Such future contracts may therefore be prohibited. With 
 the aid of this legislation, and by casting the burden of 
 proof upon him who asserts the legality of these question- 
 able or doubtful contracts, gambling in futures may be sub- 
 jected to a more effective restraint. 
 
 § 100. General prohibition of contracts on the ground 
 of public policy. — In the preceding sections, we have 
 given many cases of contracts, which are declared to be 
 invalid, because their enforcement is contrary to public 
 policy, for more or less satisfactory reasons. It only re- 
 mains to be stated generally, that whenever a contract is 
 made, having for its subject-matter the commission of some 
 offense against the law, the violation of some rule of 
 morality, or the commission of some injury to the public 
 health, the contract can not be enforced ; and the courts 
 will leave the parties to the contract and their property in 
 the same position in which they are found. No right of 
 action can be maintained, which has the invalid contract for 
 a legal basis. It is neither possible nor advisable in this 
 connection to refer to special cases ; the principle is the 
 same in all cases, and the whole subject will be found dis- 
 cussed in all of the numerous treatises upon the law of 
 contracts.^ 
 
 § 101. Liicenses. — It is the common custom mail of the 
 towns and cities of the United States to require the pay- 
 ment of a certain sum of money as a license, for the privi- 
 lege of prosecuting one's profession or calling. The 
 license is required indiscriminately of all kinds of occupa- 
 tions, whatever may be their character, whether harmful or 
 innocent, whether the license is required as a protection to 
 
 ' See, also, Benjamin on Sales, and Greeenhood on Public Policy. 
 
 § 101 
 
272 POLICE REGULATIONS OF TRADES AND PROFESSIONS. 
 
 the public or not. The one general object of such ordi- 
 nances, as a whole, whatever other reasons may be assigned 
 for the requirement of a license in any particular occupa- 
 tion, can only be the provision of a reliable source of 
 revenue. It is one of " the ways and means " of defrajdng 
 the current expenses. While the courts are not uniform in 
 the presentation of the grounds upon which the general 
 requirement of a license for all kinds of employments may 
 be justified ; on one ground or another the right to impose 
 the license has been very generally recognized.^ Whatever 
 
 1 Boston c. Schaffer, 9 Pick. 415; Com. v. Stodder,2 Cush.562; Mayor 
 of New York v. 2nd Ave. K. K. Co., 32 N. T. 261 ; Brooklyn v. Breslin, 57 
 N. T. 591; State^.Hoboken, 33N. J. L. 280; Muhlenbrinckc. Com., 42 N. 
 J. L. 364 (36 Am. Eep. 518); Johnson v. Philadelphia, 60 Pa. St. 445; 
 Bennett v. Borough of Birmingham, 31 Pa. St. 15; State v. Roberts, 11 
 GUI & J. 506; The Germania v. State, 7 Md. 1; Slaughter B. Com., 13 
 Gratt. 767; Wynne v. Wright, 1 Dev. & B. (N. C.) L. 19; Home Ins. Co. 
 V. Augusta, 50 Ga. 530; Savannah v. Charton, 36 Ga. 460; Mayor v. 
 Phelps, 27 Ala. 55 ; Mays v. Cincinnati, 1 Ohio St. 268 ; Cincinnati v. 
 Bryson, 15 Ohio, 625; Chilvers ©.People, 11 Mich. 43; State v. Herod, 
 29 Iowa, 123; People v. Thurber, 13 HI. 557; Cairo v. Bross, 101 HI. 475; 
 Kniper v. LouisviUe, 7 Bush, 599. The licensing of hucksters has been 
 held to be unreasonable in Dunham ?;. Rochester, 6 Cow. 462; Muhlen- 
 brinck v. Commissioners, 42 N. J. L. 364 (36 Am. Rep. 518) ; Frommer v. 
 Richmond, 31 Gratt. 646 ; Barling v. West, 29 Wis. 307 (9 Am. Rep. 576) ; 
 St. Paul V. Traeger, 25 Minn. 248 (33 Am. Rep. 462) ; Mays v. Cincinnati, 
 1 Ohio St. 268. License tax upon attorneys and physicians, held to be 
 reasonable. Simmons c. State, 12 Mo. 268 ; State c. Hibbard, 3 Ohio, 33 ; 
 State V. Proudflt, 3 Ohio, 33; State o. Gazley, 5 Ohio, 21; Savannah v. 
 Charton, 36 Ga. 460; Young v. Thomas, 17 Fla. 169; Longvilie v. State, 
 4 Tex. App. 312. Licensing of bakers, reasonable. Mayor, etc., v. 
 Yuille, 3 Ala. 137. License tax on places of public amusement, reason- 
 able. Charity Hospital v. Stickney, 2 La. Ann. 550; Seers et al. u. West, 
 1 Murphy, 291 ; Germania v. State, 7 Md. 1 ; Mabry v. Tarver, 1 Humph. 
 94. Reasonable to require license of hacks and draymen. Brooklyn v. 
 Bresliu, 57 N. Y. 591; Frankfort, etc., R. Co. v. Philadelphia, 58 Pa. St. 
 119; City Council v. Pepper, 1 Rich. L. 364; St. Louis v. Green, 70 Mo. 
 5G2; Cincinnati v. Bryson, 15 Ohio, 625; Commonwealth r. Matthews, 
 122 Mass. 60; St. Paul v. Smith, 27 Minn. 164 (38 Am. Rep. 296). Rea- 
 sonable to prohibit peddling without license. Huntington v. Cheesbro, 
 57 Ind. 74; Ex parte Ah Foy, 57 Cal. 92; Temple «. Sumner, 51 Miss. 13. 
 Reasonable to prohibit sale qf milk without license. People v. Mulhol- 
 
 § 101 
 
LICENSES. 273 
 
 refinements of reasoning may be indulged in, there are but 
 two substantial phases to the imposition of a license tax on 
 professions and occupations. It is either a license, strictly- 
 so-called, imposed in the exercise of the ordinary police 
 power of the State, or it is a tax, laid in the exercise of the 
 power of taxation. In many cases it becomes exceedingly 
 important to determine under which power the particular 
 license is imposed. 
 
 In preceding sections, it has been explained how the right 
 to pursue the ordinary callings of life exists independently 
 of government, and the pursuit of them can only be so far 
 restrained and regulated, as such restraint and regulation 
 may be required to prevent the doing of damage to the pub- 
 lic or to third persons. Where the calling is not dangerous to 
 "the public, either directly or incidentally, it cannot be sub- 
 jected to any police regulation whatever which does 
 not fall within the power of taxation. But those occu- 
 pations which require police regulation, because of their 
 peculiar character, in order that harm might not come to 
 the public, can be subjected to whatever police regulation 
 may be necessary to avert the threatened danger. Among 
 other measures that would be justifiable in such cases, would 
 be a more or less rigid police supervision of those who may 
 be permitted to pursue the calling. Hence, it would be 
 
 land, 19 Hun, 548 ; s. c. 82 N. Y. 324 (37 Am. Rep. 568) ; Chicago v. Bar- 
 tree, 100 111. 57. Imposing heavy license on auctioneers reasonable. 
 Wiggins V. Chicago, 68 lU. 372; Decorah v. Dunstan, 38 Iowa, 96; Fret- 
 well V. Troy, 18 Kan. 271. Licensing of liquor trade. State v. Cassidy, 
 22 Minn. 812 (21 Am. Rep. 767) ; Bancroft v. Dumas, 21 Vt. 456; State v. 
 Brown, 19 Fla. 563; Lewellen v. Lockhardts, 21 Gratt. 570; Hirsh v. 
 State, 21 Gratt. 785 ; Wiley v. Owens, 39 Ind. 429 ; Pleuler v. State, 11 
 Neb. 547; State v. Harris, 10 Iowa, 441; Hammond v. Haines, 25 Md. 
 541; Trustees v. Eeeting, 4 Denlo, 341; Town Council v. Harbers, 6 
 Rich. L. 96 ; State v. Plunkett, 3 Harr. (N. J.) 5 ; Burckholter v. McCon- 
 nellsviUe, 20 Ohio St. 308 ; State v. Sherman, 20 Mo. 265 ; State ex rel. 
 Troll V. Hudson, 78 Mo. 302; Gunnarssohn v. Sterling, 92 111. 669; East 
 St. Louis V. Wehrung, 46 111. 392 ; Hill v. Decatur, 22 Ga. 203 ; Young- 
 blood V. Sezton, 32 Mich. 406 (20 Am. Rep. 654). 
 
 18 « 101 
 
274 POLICE EEGULATIONS OF TRADES AND PROFESSIONS. 
 
 lawful and constitutional for the State or town to require all 
 those, who follow such a vocation, to take out a license. 
 On this principle, attorneys, physicians, druggists, engineers 
 and other skilled workmen may be required to procure a 
 license, which would certify to their fitness to pursue their 
 respective callings, in which professional skill is most nec- 
 essary, and in which the ignorance of the practitioner is 
 likely to be productive of great harm to the public, and to 
 individuals coming into business relations with them. So 
 also, the licensing of dramshops, green groceries, hackmen 
 and the like, is justifiable, in order that these callings maybe 
 efiectually brought within the police supervision, which is 
 necessary to prevent the occupation becoming harmful to 
 the public. The dramshop is likely to gather together the 
 more or less disreputable and dangerous classes of society ; 
 the green grocers are likely, if not honest, to sell to their 
 customers meat that is stale and unhealthy ; and the hack- 
 men are inclined, if not watched by the public authorities, 
 to practice frauds upon the public against which they cannot 
 very well protect themselves without police aid. In the 
 regulation of all such occupations, it is constitutional to 
 require those, who apply for a license, to pay a reasonable 
 sum to defray the expense of issuing the license and main- 
 taining the police supervision. What is a reasonable sum 
 must be determined by the facts of each case ; but where it 
 is a plain case of police regulation, the courts are not in- 
 clined to be too exact in determining the expense of procur- 
 ing the license, as long as the sum demanded is not 
 altogether unreasonable.^ The evils growing out of some 
 occupations may be such that their suppression can only be 
 attained to any appreciable degree by the imposition of a 
 restraint upon the pursuit of such callings or kinds of busi- 
 
 1 Boston V. Schaffer, 9 Pick. 415; Welch ». Hotchklss, 39 Conn. 140; 
 Johnson v. Philadelphia, 60 Pa. St. 445 ; State v. Hoboken, 41 N. J. L. 71 ; 
 Ash V. People, 11 Mich. 347 ; Van Baalen v. People, 40 Mich. 458 ; Burling- 
 ton V. Putnam Ins. Co., 31 Iowa, 102. 
 § 101 
 
LICENSES. 275 
 
 ness. For example, the keeping of saloons produces 
 public evil in proportion to the number of low groggeries, 
 which are allowed to be opened, and in any event the evil is 
 lessened by reducing the number of saloons of all grades of 
 respectability. One of the most effective modes of restrain- 
 ing and limiting the number of saloons in any particular 
 town or city, is to require a heavy license of the keepers of 
 them. Such a license may, probably, be justified on the 
 ground that, since the prosecution of the business entails 
 more or less injury upon society, it is but just that those 
 who make profit out of the traffic should bear the burden of 
 liquidating the damage done to the public in the form of 
 increased pauperism and crime. In Minnesota, an act pro- 
 vided for the payment of a license by all keepers of saloons 
 and dramshops, which would be devoted to the establish- 
 ment of a fund for the foundation and maintenance of an 
 asyluoi for inebriates. In declaring the act to be constitu- 
 tional, the court advanced the following reasons in support of 
 it: " It is very apparent from its provisions, that the law in 
 effect is one further regulating traffic in intoxicating drinks. 
 Such is manifestly one of its objects, and its principal 
 features and provisions accord with this idea. It requires 
 of those desiring to prosecute business the procuring of 
 a special license as a condition precedent to the exercise and. 
 enjoyment of such a right. It regards the traffic as one 
 tending to produce intemperance, and as likely, by reason 
 thereof, to entail upon the State the expense and burden of 
 providing for the class of persons rendered incapable of self- 
 support, the evil influence of whose presence and example 
 upon society is necessarily injurious to the public welfare 
 and prosperity, and, therefore, calls for such legislative 
 interposition as will operate as a restraint upon the busi- 
 nes, and protect the community from the mischief, evils 
 and pecuniary burthens following from its prosecution. 
 To this end the special license is required, and the business 
 restricted to such persons as are willing to indemnify the 
 
 § 101 
 
276 POLICE REGULATIONS OF TRADES AND PROFESSIONS. 
 
 State, in part, against its. probable results and consequences, 
 by contributing towards a fund that shall be devoted ex- 
 exclusively to that purpose in the manner Indicated in the 
 act. That these provisions unmistakably partake of the 
 nature of police regulations, are strictly of that character, 
 there can be no doubt, nor can it be denied that their ex 
 pediency or necessity is solely a legislative, and not a judi- 
 cial, question. 
 
 " Kegardingthe law as a precautionary measure, intended 
 to operate as u wholesome restraint upon a traffic, and as a 
 protection to society against its consequent evils, the exacted 
 fee is not unreasonable in amount, and the purpose to which 
 it is devoted is strictly pertinent and appropriate. It could 
 not be questioned but that a reasonable sum imposed in the 
 way of an indemnity to the State against the expense of 
 maintaining the police force to supei'vise the conduct of those 
 engaged in the business and to guard against disorders and 
 infractions of law occasioned by its prosecution, would be 
 a legitimate exercise of police power, and not open to the 
 objectiou that it was a tax for the purpose of revenue, 
 and therefore unconstitutional. Reclaiming the inebriate, 
 restoring him to society, prepared again to discharge the 
 duties of citizenship, equally promotes the public welfare 
 and tends to the accomplishment of like beneficial results, 
 and it is difficult to see wherein the imposition of a rea- 
 sonable license fee would be any less a proper exercise of 
 the power in one case than in the other." ^ 
 
 But that disposition of the license fees is not necessary as a 
 justification of the law which exacts them. The money, col- 
 lected by way of a license as a police regulation, may go into 
 the State treasury for general revenue purposes, and need not 
 be devoted specially to the relief of burdens which the prose- 
 cution of the trade or occupation imposed on the State, 
 provided that the character of the occupation is such that 
 
 1 State V. Cassldy, 22 Minn. 312 (21 Am. Kep. 765). 
 § 101 
 
LICENSES. 277 
 
 restrictions upon its pursuit, looking to its partial suppres- 
 sion, would be constitutional, whatever their character may 
 be. Since the primary object of such a law would be to 
 operate as a restriction upon the trade, and not to raise a 
 revenue, the incidental increase in the revenue would 
 constitute no valid objection to the law.^ 
 
 The amount demanded for the license, in such a case, 
 would be determinable by the legislature. It would be a 
 legislative, and not a judicial question. But it is a judicial 
 question, whether the particular occupation or trade can, 
 under the constitutional limitations, be restrained. One, 
 desiring to practice law or medicine, can be required to 
 obtain a license from some court or other State authority, 
 to which he is entitled after passing a satisfactory exami- 
 nation into his qualifications for the profession ; and he 
 can be required to pay a small fee to cover the expense 
 incurred in issuing the license ; but he could not be right- 
 
 1 Youngblood v. Sexton, 32 Mich. 406 (20 Am. Eep. 564) ; Carter v. 
 Dow, 16Wis. 299 ; Tenny v. Lanz, 16 Wis. 566. " In granting licenses, the 
 items which may be taken into consideration as elements fixing the costs 
 of the same, would seem to be about as follows : First, the value of the 
 labor and material in merely allowing and issuing the license; second, 
 the value of the benefit of the license to the person obtaining the same; 
 third, the value of the convenience and cost to the public in protecting 
 such business, and in permitting it to be carried on in the community; 
 fourth, and in some cases an additional amount imposed as a restraint 
 upon the number of persons who might otherwise engage In the business. 
 None of these items contemplates, except Incidentally, the raising of rev- 
 enue for general purposes. In many cases, the license, which, if issued 
 for proper purposes would be valid, would not be valid if issued merely 
 for the purpose of obtaining or increasing the general revenue f und.'» 
 Leavenworth v. Booth, 15 Kan. 627. "It Is no doubt true that the city 
 was empowered to resort to other means of restraint (than requiring 
 heavy licenses of saloon keepers), such as requiring such houses to be 
 orderly, and in other respects to conform to such ordinances as might be 
 adopted to properly restrain the business ; but the fact that they had other 
 powers conferred for this purpose in nowise prevented the city from ex- 
 ercising the power to restrain the general free sale of liquors by requiring 
 that a license should be obtained before it could be sold." Mt. Carmel 
 V. Wabash, 50 111. 69; Emporia v. Volmer, 12 Kan. 622. 
 
 § 101 
 
278 POLICE REGULATIONS OF TRADES AND PROFESSIONS. 
 
 fully compelled to pay a large amount, exacted of him with 
 a view to reduce the number of the practitioners of these 
 professions, although they may be overcrowded. A green 
 grocer may be required to take out a license, in order that 
 the proper police supervision may be maintained over his 
 business to prevent the sale of unwholesome meat ; and he 
 may be required to pay a reasonable sum to defray the ex- 
 penses of this necessary police inspection; but the number 
 of green grocers can not be restrained by requiring a large 
 sum in payment for his license. In order to justify a re- 
 [Strictive license, the business must itself be of such a nature, 
 l-that its prosecution will do damage to the public, whatever 
 may be the character and qualifications of those who engage 
 in it. Such would be the keeping of a saloon or dramshop.' 
 Once having been judicially ascertained that the trade or 
 occupation may be restrained, it is a matter of legislative 
 discretion what kind of restraints can be imposed. The 
 prosecution of the trade then becomes a privilege, for which 
 as large a price can be demanded by the State as it may see 
 fit. 
 
 In respect to the great majority of employments and 
 occupations, the principles, explained above, have no ap- 
 plication whatever. They not only do not threaten any 
 evil to the public, but their prosecution to the fullest meas- 
 ure of success is a public blessing. Instead of placing trades 
 in general under restraints and police regulations, in which 
 a license would be required, the utmost freedom can best 
 attain the greatest good to the public. When, therefore, 
 we see municipal coi'porations requiring licenses for the 
 prosecution of all kinds of occupations and employments; 
 if their action can be justified at all, it must rest upon some 
 other grounds than as a police regulation. It can only be 
 justified as a tax upon the profession or calling. Hav- 
 ing the natural, inalienable right to pursue a harmless 
 
 1 See pott, § 18. 
 § 101 
 
LICENSES. 279 
 
 calling, he can not be required to take out a license before 
 he can lawfully pursue it. For what is a license? " The 
 object of a license," says Mr. Justice Manning,^ " is to con- 
 fer a right that does not exist without a license, and con- 
 sequently a power to license involves in the exercise of it, a 
 power to prohibit under pain or penalty without a license. 
 Otherwise a license would be an idle ceremony, giving no 
 right, conferring no privilege, and exempting from no pain 
 or penalty. If the right existed previous to the law re- 
 quiring the license, it would not exist afterwards without a 
 license. The fact that a license is required to do an act, is 
 of itself a prohibition of such act without a license." ^ 
 
 «*A proper license tax is not a tax at all within the meaning 
 of the constitution, or even within the ordinary signification 
 of the word ' tax.' * * * The imposition of a license 
 tax is in the nature of the sale of a benefit, or privilege, to 
 the party who would not otherwise be entitled to the same. 
 The imposition of an ordinary tax is in the nature of the 
 requisition of a contribution from that which the party 
 taxed already rightfully possesses." ' 
 
 The following case, from the Supreme Court of Minne- 
 sota, covers the ground so eflfectually, in presenting the 
 distinction between a " license " and a " tax " upon occu- 
 pations, that an extensive quotation is given from the 
 opinion of the court. The city council of St. Paul had by 
 ordinance required a license fee of twenty-five dollars from 
 every huckster of vegetables, who plied his trade in the 
 streets of the city. In determining whether this was a 
 license or a tax, the court said : — 
 
 "It is apparent that provisions of this section are 
 founded upon the assumption that the common council, un- 
 der the charter, possesses the power to license the pursuit 
 of the particular calling or business mentioned, in and along 
 
 1 Chilvers v. People, 11 Mich. 43. 
 » Chilvers v. People, 11 Mich. 49. 
 > Leavenworth v. Booth, 16 Kan. 627. 
 
 § 101 
 
280 POLICE REGULATIONS OF TRADES AND PROFESSIONS. 
 
 the streets of the city, and to prescribe, as an incident 
 thereto, when it may be followed, what sum shall be paid 
 for the privilege, and also to prohibit the business entirely 
 without a license, as an efficient means for the protection and 
 enjoyment of the power itself. The ordinance is in en- 
 tire harmony with this view and no other. It was not 
 passed as suggested by counsel, by virtue of any power of 
 supervision and control over streets, because powers of that 
 character are conferred for the sole purpose of putting 
 and preserving the public streets in a fit and serviceable 
 condition, as such, by keeping them in repair and free from 
 all obstructions and uses tending in any way to the hinder- 
 ance or interruption of public travel, and to that end alone 
 can they be exercised. The ordinance in question has no 
 such object in view. On the contrary, it expressly author- 
 izes the use of the public streets for the purposes of the 
 licensed traffic during that portion of each day, when ordi- 
 narily the travel is the greatest, and when such traffic would 
 be most likely to interfere with the free and uninterrupted 
 passage of vehicles and footmen, and it contains no pro- 
 vision in any way restricting, or calculated to regulate, the 
 manner in which the licensed business shall be conducted as 
 to occasion the least public inconvenience. It cannot be 
 claimed that it was enacted in the exercise of any police 
 power for sanitary purposes, or for the preservation of good 
 order, peace or quiet of the city , because neither upon its face, 
 nor upon any evidence before us, does it appear that any 
 provision is made for the inspection of any articles sold or 
 offered for sale under the license, or preventing the sale of 
 any decayed or unwholesome vegetables, nor is there any re- 
 straint or regulation whatever, imposed upon the conduct of 
 the business during the time it is permitted to be prose- 
 cuted. The annual sum exacted for the license is manifestly 
 much in excess of what is necessary or reasonable to cover 
 expenses incident to its issue. The business itself is of a 
 useful character, neither hurtful nor pernicious, but benefi- 
 § 101 
 
LICENSES. 281 
 
 cial to society, and recognized as rightful and legitimate, 
 both at common law and by the general laws of the State. 
 No regulations being prescribed in reference to its prose- 
 cution under the license, there could be little, if any, occa- 
 sion for the exercise of any police authority, in supervising 
 the business or enforcing the ordinance, and no cause for 
 any considerable expense on that account. In view of these 
 facts, it is quite obvious that the amount of the license fee 
 was fixed with reference to revenue purposes, which it was 
 the main object of the ordinance to promote, by means of a 
 tax imposed upon the particular employment or pursuit, 
 through the exercise of its power over the subject of grant- 
 ing license." ^ 
 
 It is, therefore, conclusive, that the general requirement of 
 a license for the pursuit of any business that is not danger- 
 ous to the public, can only be justified as an exercise of the 
 power of taxation, or the requirement of a compensation 
 for the enjoyment of a privilege or franchise. In respect 
 to the latter ground, no substantial objection can be well 
 laid to the requirement of a license. When the State grants 
 a franchise, it may demand, as a consideration for its grant, 
 some special compensation, and afterwards tax it as prop- 
 erty ad valorem. Thus insurance companies established by 
 charter from one State have no natural right to carry on 
 business in any other State, and permission to do so is a 
 privilege for which the payment of a substantial sum as 
 license may be required.^ 
 
 1 St. Paul V. Traeger, 26 Minn. 248. See, also, Mayor v. 2nd Ave. 
 K. R. Co., 32 N. Y. 261; Kipij. Paterson, 26 N.J. 298; State v. Hoboken, 
 41 N. J. 71; Commonwealth v. Stodder, 2 Cush. 562; Johnson v. Phila- 
 delphia, 60 Pa. St. 445; Muhlenbrinck v. Commissioners, 42 N. J. 364 (36 
 Am. Eep. 618); State v. Roberts, 11 Gill & J. 606; Home Ins. Co. v. 
 Aagusta, 60 Ga. 630 ; Burlington v. Bumgardner, 42 Iowa, 673 ; Cairo v. 
 Bross, 101 111. 475; Major v. Cincinnati, 1 Ohio St. 268. 
 
 s People ». Thurber, 13 111. 554; Commonwealth ii. Germania, L. I. 
 Co., 11 Phlla. 553; Walker v. Springfield, 94 111. 364; State v. Lathrop, 
 10 La. Ann. 398; Ex parte Conn, 18 Nev. 424; Trustees E. F. Fund v. 
 Roome, 93 N. Y. 313; Leavenworth v. Booth, 15 Kan. 627. 
 
 § 101 
 
282 POLICE REGULATIONS OF TRADES AND PROFESSIONS. 
 
 The right of the State to tax professions and occupa- 
 tions, unless there is some special constitutional prohibition 
 of it, seems to be very generally conceded. Judge Cooley 
 says: "Taxes may assume the form of duties, imposts 
 and excises, and those collected by the national government 
 are very largely of this character. They may also assume 
 the form of license fees, for permission to carry on par- 
 ticular occupations."^ The State and the town author- 
 ities may impose a separate tax upon the same occupation,'' 
 and the fact that the property used in trade is taxed ad val- 
 orem, does not constitute any objection to the imposition of 
 a license tax upon the business.^ 
 
 The most common objection raised to the enforcement of 
 a license tax, is that it offends the constitutional provision, 
 which requires uniformity of taxation, since the determin- 
 ation of the sum that shall be required of each trade or 
 occupation must necessarily, in some degree, be arbitrary, 
 and the amount demanded more or less irregular. But the 
 courts have very generally held that the constitutional re- 
 quirement as to uniformity of taxation had no reference 
 to taxation of occupations. " We are unable to perceive 
 how the ordinance in question violates art. 127, which re- 
 quires taxation to be equal and uniform. Its words are; 
 
 * Cooley Const. Lim. 613 ; Ould v. Richmond, 23 Gratt. 464 (14 Am. 
 Eep. 139); Commonwealth o. Moore, 25 Gratt. 951; Gatlin v. Tarborso, 
 78 N. C. 419; State v. Hayne, 4 Rich. L. 403; Young v. Thomas, 17 Fla. 
 169 (35 Am. Rep. 328) ; Stewart v. Potts, 49 Miss. 949 ; State v. Endom, 
 23 La. Ann. 663 ; New Orleans v. Kaufman, 29 La. 283 (29 Am. Rep. 328) ; 
 Albrecht v. State, 8 Tex. Ct. App. 216 (34 Am. Rep. 737); Cousins v. 
 State, 59 Ala. 113 (20 Am. Rep. 290); Sweet v. Wabash, 41 Ind. 7; 
 Youngblood v. Sexton, 32 Mich. 406 (20 Am. Rep. 664) ; Morrill v. State, 
 38 Wis. 428 (20 Am. Rep. 12) ; Ex parte Frank, 52 Cal. 606 (28 Am. Rep. 
 642) ; Ex parte Robinson, 12 Nev. 263. In Cincinnati v. Bryson, 15 
 Ohio, 625, Judge Read, in a dissenting opinion, denies tliat the legislature 
 of Ohio has the power to tax occupations. 
 
 ' Webbe v. Commonwealth, 33 Gratt. 898. 
 
 ^ St. Louis V. Green, 6 Mo. App. 690; Lewellen v. Lockharts, 21 Gratt. 
 £70; Hirsh v. State, 21 Gratt. 786. 
 
 § 101 
 
LICENSES. 283 
 
 < all keepers or owners of stables where horses and car- 
 riages are kept for hire, etc' The argument seems to be 
 that the business of defendant's livery stable will not bear 
 such a tax. To this it may be again replied — this does 
 not profess to be a tax upon capital or profits, which are 
 property ; but on the person pursuing a certain occupation. 
 To levy such a tax differently upon one and another in 
 proportion to the success of each in such a pursuit would 
 produce the very inequality of which the defendants com- 
 plain. As the ordinance stands, all are taxed alike. "^ 
 
 A more serious question is the character of the remedies 
 that may be employed for the collection of the license tax. 
 Where the tax is laid upon property, the usual remedy is a 
 suit at law and a sale of goods necessary to liquidate the taxes 
 due, or, in the case of real property, a sale of the property 
 against which the taxes are assessed. And a sale of the 
 goods under execution, issued on a Judgment for the license 
 tax, would be an altogether unobjectionable remedy. 
 When the tax is lawfully laid against the individual, it 
 becomes a debt which, like any other kind of indebtedness, 
 can be reduced to judgment, and satisfaction obtained by a 
 sale under execution of the judgment debtor's goods. But 
 the usual remedy is to make the payment of the license tax 
 a condition precedent to the lawful prosecution of the 
 business, whether the license is executed in the enforcement 
 of a police regulation, or as means of raising revenue. As 
 a police regulation the denial of the right to engage in the 
 business before taking out a license is but reasonable. The 
 license operates as a prohibition, and there would clearly 
 
 I Municipality v. Dubois, 10 La. Ann. 56. See, also, to the same eSect, 
 Toungblood v. Sexton, 32 Mich. 406 (20 Ann. Kep. 654) ; Gatlin v. Tar- 
 boro; 78 N. C. 119; Mayor, etc., v. Beasley, 1 Humph. 232; Ex parte Rob- 
 inson, 12 Nev. 263; State v. Endom,23 La. Ann. 663; People v. Thurber, 
 13 111. 654. 
 
 § 101 
 
284 POLICE EEGULATION8 OF TEADES AND PROFESSIONS. 
 
 be no constitutional objection to a law, which even made it 
 penal to prosecute the business without a license.^ 
 
 But the case assumes a different phase, when the occupa- 
 tion is merely taxed, and not licensed in the strict sense of 
 the word. Can the State prohibit the prosecution of a trade 
 or business until the tax is paid? Ordinarily it is conceded 
 that this remedy may be adopted for the effectual collection 
 of the tax. Judge Cooley says : ^ " What method shall be 
 devised for the collection of a tax, the legislature must 
 determine, subject only to such rules, limitations, and re- 
 straints as the constitution may have imposed. Very sum- 
 mary methods are sanctioned by practice and precedent." 
 In a note on the same page, he gives among the methods of 
 collection resorted to, the following: " Making payment 
 a condition precedent to the exercise of some legal 
 right, such as the institution of a suit, or voting at 
 elections, or to the carrying on of business; requir- 
 ing stamps on papers, documents, manufactured articles," 
 etc., and the United States government has employed in 
 the internal revenue service a large force of detectives 
 whose duty it is to discover and bring to punishment all 
 those who are engaged in the manufacturing of distilled 
 spirits. The right of the United States government to 
 make the sale and manufacture of intoxicating liquors and 
 tobacco illegal, unless a revenue license has been previous- 
 ly obtained, and the tax paid, has never been successfully 
 contested , although the prosecutions for the violation of the 
 law have been frequent.* But the right of the States, in 
 taxing the professions, to make the payment of the tax a 
 condition precedent to the lawful pursuit of the business or 
 profession, has been questioned, and likewise denied.* 
 
 1 Goshen d. Kern, 63 Ind. 468. In this case the occnpation was that of 
 auctioneers. 
 
 2 Const. Lim. 645, 
 
 8 See Henderson's Distilled Spirits, 14 Wall 44. 
 
 * " What is a license? It is defined to be a right given by some compe- 
 § 101 
 
LICENSES. 285 
 
 " The popular understandiog of the word license undoubt- 
 edly is, a permission to do something which without license 
 would not be allowable. This we are to suppose was the 
 sense in which it was made use of in the constitution. But 
 this is also the legal meaning. ' The object of a license,' 
 says Mr. Justice Manning, ' is to confer a right that 
 does not exist without a license.' ^ Within this definition, 
 a mere tax upon a traffic cannot be a license of the traffic, 
 unless the tax confers some right to carry on the traffic, 
 which otherwise would not have existed. We do not 
 understand that such is the case here. TheTery act which 
 imposed this tax repealed the previous law, which forbade the 
 traffic and declared it illegal . The trade then became lawful , 
 whether taxed or not ; and this law, in imposing the tax, did 
 not declare the trade illegal in case the tax was not paid. 
 So far as we can perceive, a failure to pay the tax no more 
 renders the trade illegal than would a like failure of a 
 farmer to pay a tax on his farm render its cultivation illegal. 
 The State has imposed a tax in such a case, and made 
 such provision as has been deemed needful to insure its 
 payment ; but it has not seen fit to make the failure to pay 
 a forfeiture of the right to pursue the calhng. If the tax 
 is paid, the traffic is lawful ; but if not paid, the traffic is 
 
 tent authority to do an act which, withont such authority, would be ille- 
 gal. The position of a city then is that, notwithstanding Dr. Chariton 
 has a license from the State to practice medicine anywhere in the State, 
 yet if he exercise the privilege thereby granted in the city of Savannah 
 without a license from the city, it will be illegal. In other words if he 
 acts under a license from the State, he becomes a criminal. The effect 
 of which is to elevate the ordinance of a city above the laws of the 
 State. * * * Under the name of license Dr. Charlton cannot be pro- 
 hibited from availing himself, in the city, of a privilege conferred on 
 him by the State. He is not here contesting the authority of the city to 
 tax him for practicing his profession; what he contends for is, that the 
 city shall not make that illegal which by the law of the State is legal. 
 We see no good reason why the city may not tax the practice of any pro- 
 fession within the corporate limits." Savannah v. Charlton, 36 Ga. 460. 
 1 culvers v. People, 11 Mich. 43. 
 
 § 101 
 
286 POLICE REGULATIONS OF TRADES AND PROFESSIONS. 
 
 equally lawful. There is consequently nothing in the case 
 that appears to be in the nature of license." ^ 
 
 While practice and precedent justify this summary method 
 of collecting the tax upon occupations, it cannot be success- 
 fully denied that it is in contravention of natural right. 
 Every one has a natural right to pursue any innocent call- 
 ing, without permission from the government; and while the 
 right of the government to tax an occupation may be con- 
 ceded, the imposition of the tax creates only a debt between 
 the individual and the State; and the same remedies may 
 be pursued, as are permissible in the collection of ordinary 
 debts. In cases of insolvency of the individual, the 
 indebtedness to the State for a license tax may be given 
 priority of payment ; a very summary proceeding may be 
 devised for reducing the license tax to judgment, and secur- 
 ing payment by a levy upon the goods of the individual ; 
 all these ordinary and special remedies, and others of a 
 like character, might well be provided, but to make it illegal 
 to pursue a trade or engage in an occupation, until the tax 
 is paid, is cle.irly in violation of those fundamental princi- 
 ples of civil liberty, which are recognized and guaranteed 
 by all constitutional governments. The State may make 
 the payment of taxes generally, or of poll tax in particular^ 
 a condition precedent to the exercise of the right of suffrage, 
 for that is generally conceded by all constitutional authori- 
 ties to be a privilege, and not a natural right. But the 
 pursuit of an employment or business is a natural right, 
 which exists independently of State authority, and can only 
 be abridged by the exercise of the police power of the State, 
 in the imposition of those restrictions and burdens which 
 are necessary to prevent, in the prosecution of the trade or 
 business, the infliction of injury upon others. The collec- 
 tion of a tax does not come within the exercise of police 
 power as a prohibitory measure. 
 
 1 Cooley, J., in Toungblood v. Sexton, 32 Mich. 406. 
 § 101 
 
LICENSES. 287 
 
 Another important question, in connection with licenses, 
 is the nature of the right or privilege acquired by a license, 
 strictly so called. A license tax, as a tax, confers no right 
 of any kind ; it simply lays a burden upon an occupation, 
 and creates the duty to pay the tax. But when the license 
 fee is exacted in the exercise of the police power of the 
 State, does its payment give to the owner of the license an 
 irrevocable right to pursue the trade or occupation, subject 
 to no further restrictions by the State? The question has 
 assumed a practical form in determining the effect of the 
 passage of a law, prohibiting the sale of intoxicating liquor, 
 upon the licenses to sell, that have been previously granted, 
 and the time for which they were given has not expired. 
 Can the State, after granting a license to sell intoxicating 
 liquors for one year, during that year revoke the license by 
 prohibiting the sale altogether? The answer must depend 
 upon the nature of the right acquired by the license. It 
 has been repeatedly held that a subsequent prohibition law 
 revokes all outstanding licenses, whatever damage might 
 result to those who, relying upon the license, as giving the 
 right to sell during the year, have incurred obligations and 
 expenses, for which they cannot secure any proper reim- 
 bursement except in the continued enjoyment of the license. 
 But, however great a hardship the revocation of the license 
 may happen to be in particular cases, since the license is an 
 authority to do what is otherwise prohibited, and the issue 
 of the license is one mode of exercise of the police power ; 
 if the occupation or trade can be prohibited under the con- 
 stitutional limitations, because of the injury done to the 
 public in its prosecution, the license must be held to have 
 been given and accepted, subject always to the constant ex- 
 ercise of the police power in the interest of the public, the 
 right to the exercise of which can never be bartered away 
 by any legislative enactment. The Court of Appeals of 
 New York gave utterance to the following language, in ex- 
 plaining the right to revoke licenses : 
 
 § 101 
 
288 POLICE EEGULATIONS OF TEADES AND PEOFESSIONS. 
 
 " These licenses to sell liquors are not contracts between 
 the State and the person licensed, giving the latter vested 
 rit^hts, protected on general principles and by the constitu- 
 tion of the United States against subsequent legislation, nor 
 are they property in any legal or constitutional sense. 
 They have neither the qualities of a contract nor of property, 
 but are merely temporary permits to do what otherwise 
 would be an offense against a general law. They form a por- 
 tion of the internal police system of the State ; are issued 
 in the exercise of its police powers, and are subject to the 
 direction of the State government, which may modify, re- 
 voke or continue them as it may deem fit. If the legisla- 
 ture of 1857 had declared that licenses under it should be 
 irrevocable (which it does not, but by its very terms they 
 are revocable), the legislatures of subsequent years would 
 not have been bound by the declaration. The necessary 
 powers of the legislature over all subjects of internal police, 
 being a part of the general grant of legislative power given 
 by the constitution, cannot be sold, given away, or relin- 
 quished. Irrevocable grants of property and franchises 
 may be made, if they do not impair the supreme authority 
 to make laws for the right government of the State ; but no 
 one legislature can curtail the power of its successors to 
 make such laws as they may deem proper in matters of 
 police."^ 
 
 1 Metropolitan Board ». Barrie, 34 N. T. 657. " Nor can it be doubted 
 that the legislature has the power to prohibit the sale of spirituous or 
 fermented liquors in any part of the State, notwithstanding a party to 
 be affected by the law may have procured a license, under the general 
 license laws of the State, which has not yet expired. Such a license Is in 
 no sense a contract made by the State with the party holding the license. 
 It is a mere permit, subject to be modified or annulled at the pleasure of 
 the legislature, who have the power to change or repeal the law under 
 which the license was granted." Fell v. State, 42 Md. 71 (20 Am. Eep. 
 83); Commonwealth v. Kingsley, 133 Mass. 578; La Croix v. Fairfield Co. 
 Comrs., 49 Conn. 591; Seed v. Beall, 42 Miss. 572; Coulson v. Harris, 
 43 Miss. 728; Eobertson v. State, 12 Tex. App. 541; Schwuchon ■». 
 Chicago, 68 111. 444; Prohibition Amendment Cases, 24 Kan. 700. 
 § 101 
 
PROHIBITION OF OCCUPATIONS IN GENERAL. 289 
 
 By the same course of reasoning is it justified by subse- 
 >quent laws to subject the licensed occupation to further re- 
 strictions. Thus it was held that the grant of a license does 
 not prevent the State from prohibiting by a later law the 
 sale of liquor on certain specified days,l or from prohibit- 
 ing licensed saloons being open after a certain hour in the 
 night.* 
 
 § 102. Prohibition of occupations in general.^ — If the 
 
 police regulation of trades and occupations cannot be insti- 
 tuted and enforced, except so far as a trade or occupation is 
 harmful or threatens to be harmful i n any way to the public, 
 however slight the restraint may be, so much the more 
 necessary must it be to confine the exercise of the police 
 power to the prevention of the injuries with which the 
 public is threatened by the prosecution of a calling, when 
 the law undertakes to deny altogether the right to pursue 
 the calling or profession. In proportion to the severity or 
 extent of the police control must the strict observance of 
 the constitutional limitations upon police power be required.) 
 "There is no easier or more tempting opportunity for the j 
 practice of tyranny than in the police control of occupa-/ 
 tions. Good and bad motives often combine to accomplish] 
 this kind of tyranny. The zeal of the reformer, as well as 
 cupidity and self-interest, must alike be guarded against. 
 Both are apt to prompt the employment of means, to attain 
 the end desired, which the constitution prohibits. 
 
 It has been so often explained and stated, that the police 
 power must, when exerted in any direction, be confined to 
 the imposition of those restrictions and burdens which are 
 necessary to promote the general welfare, in other words to 
 prevent tlie infliction of a public injury, that it seems 
 
 Reichmaller ». People, 44 Mich. 280. 
 2 State V. Washington, 44 N. J. L. 606 (43 Am. Eep. 402). 
 9 See post, § 136, for a discussion of the prohibition of the sale of per- 
 sonal property. 
 
 19 § 102 
 
290 POLICE REGULATIONS OF TRADES AND PROFESSIONS. 
 
 to be an unpardonable reiteration to make any further 
 reference to it. But the principle thus enunciated ia 
 the key to eveiy problem arising out of the exercise 
 of police power. Applied to the question of prohi- 
 bition of trades and occupations, it declares unwar- 
 ranted by the constitution any law which prohibits alto- 
 gether an occupation, the prosecution of which does not 
 necessarily, and because of its unenviable character, work 
 an injury to the public. It is not sufficient that the public 
 sustains harm from a certain trade or employment, as it is 
 conducted by some who are engaged in it. Nor is it suffi- 
 cient that all remedies for the prevention of the evil prove 
 defective, which fall short of total prohibition. Because 
 many men engaged in the calling persist in so conducting 
 the business that the public suffer, and their actions cannot 
 otherwise be effectually controlled, is no justification of a law 
 which prohibits an honest man from conducting the business 
 in such a manner as not to inflict injury upon the public. 
 In order to prohibit the prosecution of a trade altogether, 
 the injury to the public, which furnishes the justification for 
 such a law, must proceed from the inherent character of the 
 business. Where it is possible to conduct the business 
 without harm to the public, all sorts of police regulations 
 may be instituted, which may tend to suppress the evil. 
 Licenses may be required, the most rigid system of police' 
 inspection may be established, and heavy penalties may be 
 imposed for the infractions of the law ; but if the business 
 is not inherently harmful, the prosecution of it cannot 
 rightfully be prohibited to one who will conduct the business 
 in a proper and circumspect manner. Such an one would 
 " be deprived of his liberty " without due process of law. 
 With this understanding of the constitutional limitations 
 upon the police control of employments, it is not difficult to 
 test the constitutionality of the various laws enacted in dif- 
 ferent States, which prohibit the prosecution of certain 
 trades and professions. 
 § 102 
 
PROHIBITION OF OCCUPATIONS IN GENEEAL. 291 
 
 It has been maintained in a previous section,^ that police 
 power does not extend to the punishment of vice. No law 
 can make vice a crime, unless it becomes by its consequence 
 a trespass upon the rights of the public. But while this 
 may be true, no man can claim the right to make a trade of 
 vice. A business that panders to vice may and should be 
 strenuously prohibited, if possible. Fornication is a most 
 grievous and common vice. Under this view of the limita- 
 tions of police power, it could not be made a punishable 
 offense, although it would be commendable as well as per- 
 missible to prohibit the keeping of houses of ill-fame.^ 
 Gambling of every kind is an evil, a vice, which cannot 
 consistently be punished, except indirectly by a refusal of 
 the courts to enforce gambling contracts ; ' but the State 
 may prohibit and punish the keeping of gambling houses, 
 and lotteries, and the sale of lottery tickets.* And it is the 
 same in respect to every vice. Vice, as vice, is not subject 
 to police regulation, but a business may always be pro- 
 hibited, whose object is to furnish means for the indulgence 
 of a vicious propensity or desire. > 
 
 Fraud is a trespass upon the rights of others, and may, 
 therefore, always be punished. When, therefore, a busi- 
 ness consists necessarily in the perpretation of a fraud , the 
 business may be prohibited, although fraud furnishes no 
 justification for the prohibition of a business, which is not 
 necessarily fraudulent, but which only affords abundant 
 facilities for the commission. Thus it has been held within 
 the constitutional limitations of the power of a State legis- 
 
 1 See ante, § 68. 
 
 a State v. Williams, 11 S. C. 288 ; Childers v. Mayor, 3 Sneed, 366. 
 
 3 See ante, § 99. 
 
 * Freleigh v. State, 8 Mo. 606 ; States. Sterling, lb. 797 ; Terry v. Olcott,, 
 i Conn. 442; Ex parte Blanchard, 9 Nev. 101; Kohn v. Koehler, 21 
 Hun, 466 ; Hart v. People, 26 Hun, 396. See State v. Phalen, 3 Harr. 441, 
 in which it is held that an act, prohibiting lotteries, cannot act retro- 
 spectively, so as to affect a lottery which is carried on under special 
 grant of the legislature 
 
 § 102 
 
292 POLICE REGULATIONS OF TRADES AND PROFESSIONS. 
 
 lature to prohibit the sale of adulterated milk, even though 
 the adulteration is made with harmless materials, such as 
 pure water.^ It may be said that a perfectly bona fide sale 
 may be made of adulterated milk, but the position is hardly 
 sustainable. Adulteration is essentially fraudulent, and 
 serves no good purpose, and the sale of the adulterated 
 article of food may be rightfully prohibited, although it pro- 
 duces no unwholesome effect. Sugars are now very com- 
 monly adulterated by the use of a harmless substance called 
 glucose. There can be no doubt of the power of the State 
 to make the sale and manufacture of adulterated sugar a 
 misdemeanor, but the great diflSculty, that is experienced 
 in detecting and suppressing this mode of adulteration, 
 would not justify the absolute prohibition of the sale and 
 manufacture of sugars. 
 
 Of late years stjvtutes have been enacted in several States, 
 notably Indiana and Pennsylvania, which prohibit the sale 
 of railroad tickets, except by the authorized agents of the 
 railroads and ihebonaflde purchaser of an unused ticket or 
 portion of a ticket, the object of the statutes being to put 
 an end to the business of the so-called ticket " scalpers " 
 or brokers, and the Pennsylvania statute makes it compul- 
 sory upon the railroad company to redeem an unused ticket 
 or portion of a ticket. It has been held in both States that 
 the law was constitutional.^ In both cases the law was jus- 
 tified as a measure for the prevention of fraud upon the rail- 
 roads and upon purchasers. The preamble to the Penn- 
 sylvania statute was as follows: "Whereas numerous 
 frauds have been practiced upon unsuspecting travelers 
 by means of the sale by unauthorized persons of rail- 
 
 1 Legislature has the power in an act forbidding the sale of impure or 
 adulterated milk, to fix a standard by which it shaU be judged. People 
 V. Cipperly, Ct. App. N. T., Feb. 6, 1886; State v. Smythe, 14 E. I. 100 
 (51 Am. Rep. 344); Commonwealth u. Waite, 9 Allen, 264; Common, 
 wealth V. Farren, 9 Allen, 489 ; Polenskie v. People, 73 HT. Y. 65. 
 
 2 Fry V. State of Indiana, 63 Ind. 552 (18 Am. Law Keg. (n. s.) 425) ; 
 Commonwealth v. Wilson, 14 Phila. (Pa.) 384. 
 
 § 102 
 
PROHIBITION OF OCCUPATIONS IN GENERAL. 293 
 
 way and other tickets, and also upon railroads and other 
 corporations by the fraudulent use of tickets, in viola- 
 tion of the contract of their purchase," etc. It is 
 not contended that the business of ticket brokerage is 
 in itself of a fraudulent character. The business can be 
 honestly conducted by honest man. It is only claimed 
 that in its prosecution the business presents manifold op- 
 portunities for the commission of fraud. As has already 
 been stated, the police regulation of an employment may 
 extend to any length that may be necessary for the preven- 
 tion and suppression of fraud in its pursuit ; but an honest 
 man cannot be denied the privilege of conducting the busi- 
 ness in an honest and lawful manner because dishonest 
 men are in the habit of practicing gross and successful 
 frauds upon those with whom they have dealings. If 
 that were a justifiable ground for abolishing any business, 
 many important, perhaps some of the most beneficial, em- 
 ployments and professions could be properly prohibited. 
 There is no profession or employment, that furnishes more 
 abundant opportunities for the practice of frauds upon de- 
 fenseless victims than does the profession of the law, andf 
 that profession has its ample proportion of knaves among \ 
 its votaries, although the proportion is very much smaller ' 
 than is popularly supposed. But it would be idle to assert 
 that, because of the frequency of fraudulent practices among 
 lawyers, the State could abolish the profession and forbid 
 the practice of the law. There is no difiierence in princi- 
 ple between the two cases. The business of ticket broker- 
 age does afford many opportunities for fraud and deceit, 
 and it may on that account be placed under strict police 
 surveillance. But the business serves a useful end, when 
 honestly conducted, and the constitutional liberty of the 
 ticket broker is violated, when he is prohibited altogether 
 from carrying on his business. 
 
 A still stronger ground for the total prohibition of a trade 
 or business is when the thing offered for sale is in some 
 
 § 102 
 
294 POLICE REGULATIONS OF TRADES AND PROFESSIONS. 
 
 way injurious or unwholesome. It is not enough that the 
 thing may become harmful, when put to a wrong use. It 
 must be in itself harmful, and incapable of a harmless use. 
 Poisonous drugs are valuable, when properly used, but they 
 may work serious injuries, by being improperly used, even 
 to the extent of destroying life. But it would hardly be 
 claimed that, on that account, their sale could be prohib- 
 ited altogether. Safeguards of every kind can be thrown 
 around the sale of them, so that damage will not be 
 sustained from an improper use of them, but that is the 
 limit of the police control of the trade. Thus, for ex- 
 ample, opium is a very harmful drug, when improperly 
 used, and it is all the more dangerous because the 
 power of resistance diminishes rapidly in proportion to 
 the growth of the habit of taking it as a stimulant, and 
 a miserable, degraded death is the usual end. An opium 
 eater or smoker, not only brings down ruin upon himself, 
 but inflicts misery upon all who stand in more or less in- 
 timate relation with him. The habit is a most dangerous 
 vice. But on the other hand, opium is a very useful, and 
 indispensable drug. Many a poor sufferer has had his de- 
 scent to the grave made easy and painless by the judicious 
 use of this drug. Shall the sale of opium be prohibited al- 
 together simply because some men are apt to misuse it to 
 their own injury? The law can prohibit the keeping of 
 houses where those who are addicted to the opium habit 
 are entertained with the opium pipe ; the law may subject 
 the sale of opium to such regulations as may be calculated 
 to diminish the temptation to acquire this evil habit, but 
 the sale of the drug for proper purposes cannot be pro- 
 hibited.^ It is possible that the sale of opium or other pois- 
 onous drugs maybe prohibited to all except those who, like 
 physicians and druggists, furnish in their professional char- 
 
 1 State ». Ah Sam, 15 Nev. 27 (37 Am. Eep. 454; State v. Ah Chew, 16 
 »ev. 50 (40 Am. Rep. 488) . 
 
 § 102 
 
PROHIBITION OF OCCUPATIONS IN GENERAL. 295 
 
 acter a safe guaranty, that no improper use shall be made of 
 them, and to others upon the prescription of a physician. 
 But that is questionable. The sale of it can, of course, be 
 prohibited to minors and to all who may be suffering from 
 some form of dementia, and to confirmed opium eaters. 
 But it would seem to be taking away the free will of those 
 who are under the law confessedly capable of taking care of 
 themselves, if the law were to prohibit the sale of opium to 
 adults in general. But where a thing may be put to a 
 wrongful and injurious use, and yet may serve in some 
 other way a useful purpose, the law may prohibit the sale 
 of such things, in any case where the vendor represents 
 them as fit for a use that is injurious, or merely knows that 
 the purchaser expects to apply them to the injurious pur- 
 pose. Thus the sale of diseased or spoiled meats or other 
 food, as food, intending or expecting that the purchaser 
 is to make use of them as food, may be prohibited. So, 
 also, the sale of milk which comes from cows fed in whole 
 or in part upon still slops, may be prohibited, if it is true 
 that such milk is unwholesome as human food.^ In the 
 same manner a law was held to be constitutional, which pro- 
 hibited the sale of illuminating oil which ignited below a 
 certain heat.^ But it would be unconstitutional to prohibit 
 altogether the sale of either of these things, if they could 
 be employed in some other harmless and useful way. For 
 example, the oil which was prohibited for illuminating pur- 
 poses, may be very valuable and more or less harmless 
 when used for lubricating purposes. 
 
 These principles have lately been presented for consWer- 
 ation and review in connection with laws prohibitmg the 
 manufacture and sale of a substance, called oleomargarine, 
 which resembles butter, and is intended to be used instead, 
 and to supply the place in trade, of the dairy product. It 
 is manufactured out of certain fatty deposits of the cow, 
 
 1 Johnson v. Simonton, 43 Cal. 642. 
 * Patterson v. Kentucky, 97 U. S. 501. 
 
 § 102 
 
296 POLICE EEGDLATIONS OF TRADES AND PROFESSIONS. 
 
 which contain the same chemical properties as butter, vary- 
 ing only in degree. In New York and Missouri, and per- 
 haps in other States, laws have been enacted, prohibiting- 
 absolutely the sale and manufacture of the oleomargarine. 
 Although there has been some attempt made to show that 
 this butter substitute is unwholesome as food, it seems now 
 to be established by the most thorough chemical analyses, 
 that there is no unwholesome ingredient in unadulterated 
 oleomargarine. If it were shown to be unwholesome as 
 food, its sale for the purpose of human consumption could 
 without doubt be prohibited. But the only valid objection 
 to its sale is the close resemblance to genuine butter, and the 
 consequent opportunity for the perpetration of fraud. And 
 this was the sole ground upon which the constitutionality of 
 the law was sustained by the Supreme Court of Missouri.^ 
 
 But it is plain from the foregoing principles, that a total 
 prohibition of the sale of a thing cannot be justified on any 
 such grounds. The sale must be necessarily fraudulent, in 
 order to admit of its absolute prohibition. The law, there- 
 fore, which prohibits the sale of oleomargarine, granting 
 that it is a wholesome article of food, is unconstitutional, 
 and so it is decided by the New York Court of Appeals, in 
 considering the validity of the New York statute.^ In the 
 United States Circuit Court, the constitutionality of the Mis- 
 
 1 " The central idea of the statute before us seems very manifest; it 
 was, in our opinion, the prevention of facilities for selling or manufac- 
 turing a spurious article of butter, resembling the genuine article so 
 closely in its external appearance, as to render it easy to deceive pur- 
 chasers into buying that which they would not buy but for the deception. 
 The history of legislation on this subject, as well as the phraseology of 
 the act itself, very strongly tend to confirm this view. If this was the 
 purpose of the enactment now under discussion, we discover nothing in 
 its provisions which enables us, in the light of the authorities, to say that 
 the legislature, when passing the act, exceeded the power confided to that 
 department of the government; and, unless we can say this, we cannot 
 bold the act as being anything less than valid." State v. Addington, 77 
 Mo. 118. 
 
 2 People V. Marx, 99 N. T. 307 (52 Am. Rep. 314). 
 
 § 102 
 
PROHIBITION OF OCCUPATIONS IN 6ENEEAL. 297 
 
 souri statute was disputed in a petition by the party to the 
 cause, who prayed for the intervention of the United States 
 courts to prevent the enforcement of the law. The petition 
 was denied, on the ground that the United States court has 
 no jurisdiction, but in delivering the opinion of the court, 
 Justice Miller exf)ressed the opinio^i that the law was in vio- 
 lation of the constitution of Missouri.^ The practice of 
 deception in the sale of the oleomargarine may be made 
 punishable as a misdemeanor, and the law may require, 
 as in Ohio, the oleomargarine to be put up for sale in pack- 
 ages on which shall be distinctly and durably painted, 
 stamped, or marked, the name of each article used or 
 entering into the composition of such substance.* A law 
 has lately been proposed in New York, by which every one 
 dealing in oleomargarine, is required to put up a sign to that 
 effect, and in the manufacture of the substance it is required 
 to be so colored that it may be readily distinguished from 
 pure butter. There can be no doubt as to the constitu- 
 tionality of such laws, for their only effect is the preven- 
 tion of fraud. They do not interfere with the honest sale 
 of a wholesome article of food. 
 
 It has been maintained in one case,' that the judgment 
 of a town board of aldermen that a certain article of food 
 is unwholesome, and that therefore the sale of it can be 
 prohibited, is not open to inquiry in the ordinary courts. 
 There can be no doubt that the scientific correctness of the 
 judgment of the legislative body in such a case is a judicial 
 question, and therefore subject to review by the courts, for 
 in no other way can tbe legislatui-es be kept within the limit- 
 ations of the constitution. If it is only necessary for the 
 legislature to pronounce a calling injurious to the public, in 
 order to justify its prohibition, there is no limit to the 
 police power of the government. Constitutional restrictions 
 
 1 In re John Brosnahan, Jr., i McCrary, 1. 
 
 2 Palmer v. State, 39 Ohio St.— ; 3 Ohio Law J. 708. 
 ' Johnson v. Simonton, 43 Cal. 242. 
 
 § 102 
 
298 POLICE EEGUIiATIONS OF TEADES AND PKOFE8SION8. 
 
 would exert no greater influence than disorganized public 
 opinion ; and absolutism, monarchical, aristocratic or demo- 
 cratic, according to the circumstances, would be the cor- 
 ner stone of such a government, at least in theory. The 
 recognition of the rights of the minority would be only a 
 matter of special grace and favor. 
 
 An important question, in this phase of police power, 
 which will soon demand an explicit answer, is how far and 
 in what manner the government may regulate and prohibit 
 the manufacture and sale of dynamite and other compounds 
 of nitro-glycerine. The deadly character of the composi- 
 tion; the ready opportunity which its portability and easy 
 manufacture afford for its application to base and criminal 
 uses ; the ability of a few miscreants with a few pounds of it 
 to endanger and perhaps destroy the lives of many people, 
 demolish public and other buildings, and bring about a state 
 of anarchy in general, all of which can be done with very 
 little danger of detection; these considerations, if any, 
 would most cei'tainly justify the prohibition of the manufac- 
 ture and sale of so dangerous an article. And yet a law ' 
 would be unconstitutional which prohibited absolutely the 
 manufacture and sale of dynamite and nitro-glycerine. For 
 these powerful agencies are of great value and service in 
 many legitimate trades and occupations. The business may 
 be placed under the strictest police supervision ; heavy pen- 
 alties may be imposed upon those who knowingly sell these 
 articles to persons to be used for criminal purposes ; a heavy 
 bond of indemnity may be required of each dealer, and 
 only men of reputable character, under license, may be per- 
 mitted to carry on the business: these regulations are all 
 reasonable and constitutional, for they do not extend beyond 
 the prevention of the evil which threatens the public. A 
 total prohibition of the trade in dynamite would not only 
 prevent the evil, but also prohibit the lawful use of a 
 most valuable agency, and would therefore be unconsti- 
 tutional . 
 
 § 102 
 
PROHIBITION OF THE LIQUOE TRADE. 299 
 
 § 103. Prohibition of the liquor trade. — This phase 
 of police supervision is not only the most common, but the 
 moral and economical conditions, which induce its exercise, 
 are so great and pressing, and the popular excitement at- 
 tending all agitations against intemperance, like all popular 
 agitations, is usually so little under the control of reason, 
 that it is hard to obtain, from those who are attempting to 
 form and mould public opinion, any approach to a dis- 
 passionate consideration of the constitutional limitations 
 upon the police power of the State, in their application to 
 the regulation and prohibition of the liquor trade. Drunk- 
 enness is distressingly common, notwithstanding the great 
 increase in the number of those who practice and preach 
 total abstinence from the use of intoxicating liquors ; and 
 the multitude of cases of misery and want, caused directly 
 by this common vice, cry aloud for some measure whereby 
 the evil of drunkenness may be banished from the earth. 
 It is no wonder when the zealous reformer contemplates the 
 careworn face of the drunkard's wife, and the rags of his 
 children, that he appeals to the law-making power to enact 
 any and all laws which seem to pi'omise the banishment of 
 drunkenness ; forgetting, as it is very natural for him to do, 
 since zealots are rarely possessed of a philosophical and 
 judicial mind, that to make a living law, it must be de- 
 manded, and its enactment compelled by an irresistible pub- 
 lic opinion : and where the law in question does not have 
 for its object the prevention or punishment of a trespass 
 upon rights, it is impossible to obtain for it the enthusias- 
 tic and practically unanimous support, which is necessary to 
 secure a proper enforcement of it. Furthermore, if in any 
 ■community public opinion is so aroused into activity as to 
 be able to secure the enforcement of a law, having for its 
 object the prevention of a vice, the moral force of such a 
 public opinion will be amply sufficient to suppress it. The 
 temperance agitator does not usually dwell on these scien- 
 tific objections to temperance laws, or if he does, he either 
 
 § 103 
 
300 POLICE EEGULATIONS OF TKADB8 AND PROFESSIONS. 
 
 gives to them a flat and unreasoning denial, which malcea 
 all farther argument impossible, or he justifies the enactment 
 of an otherwise useless law by the claim that the enact- 
 ment would arouse public attention to the evils of drunk- 
 enness, and by making persistent, though unsuccessful, 
 attempts to enforce the law, public opinion will be educated 
 up to the point of giving the proper support to the law. 
 Educate public opinion up to the point of giving proper 
 support to the law I If there is one principle that the his- 
 tory of law and legislation teaches with unerring precis- 
 ion, it is, not only the utter futility as a corrective measure 
 of a law, whose enactment is not the necessary and un- 
 avoidable resultant of the social forces, then at play in 
 organized society, but also the great injury inflicted upon 
 law in general by the enactment of laws before their time. 
 Nothing so weakens the reverence for law, and diminishes 
 its effectiveness as a restraint upon wrong and crime, as the 
 passage of stillborn laws, laws which are dead letters be- 
 fore they have been promulgated to the people. And why 
 are laws for the prevention or punishment of vice ineffec- 
 tual ? Because such a law cannot enlist in its cause the 
 strong motive power of self-interest. I do not mean that it 
 cannot be demonstrated that each individual in the com- 
 munity will be benefited by the effective control of drunken- 
 ness. But I do mean that the people at large cannot be made 
 to feel, sufficiently acutely, the necessity of enforcing these 
 laws, in order to make them effective remedies for the sup- 
 pression of the evil. A man sees a pick-pocket steal his 
 neighbor's handkerchief, while on his way through the pub- 
 lic streets. He will instantly, involuntarily, give the alarm, 
 and probably would render what aid was necessary or pos- 
 sible, in securing the arrest of this offender against the laws 
 of the country. The same man, a few steps further, sees 
 another violating the law against the sale of intoxicating 
 liquor ; and although he may be an active member of some 
 temperance organization, he will be sure to pass on his way, ' 
 § 103 
 
PROHIBITION OF THE LIQUOR TRADE. 301 
 
 and say and do nothing to bring this offender to justice. 
 Why this difference of action in the two cases ? In the 
 first case, the act was a trespass upon the right of property 
 of another, and self-interest, through fear of a like trespass 
 upon his own rights of property, prompted the man who 
 saw the crime to aid in the arrest of the criminal. In the 
 latter case, no man's rights were trampled upon ; the unlaw- 
 ful act inflicted no direct damage upon the man who wit- 
 nessed the violation of the law, and consequently self-interest 
 did not impel him to activity in support of the law. 
 
 But these considerations constitute only philosophical ob- 
 jections to such laws, and can only be addressed to the legis- 
 lative body, as reasons why they should not be passed. They 
 do not enter into a consideration of the constitutionality of 
 the laws after they have been enacted. If the constitution 
 does not prohibit the enactment of these laws, the only ob- 
 stacle in the way of their passage is the unwillingness of 
 the legislators. The question to be answered is, therefore, 
 are the laws for the regulation and prohibition of the liquor 
 trade constitutional? The preceding sections of the pres- 
 «nt chapter contain an enunciation of all the principles of 
 constitutional law, which are necessary to the solution of 
 the present problem. But a recapitulation is necessary, be- 
 fore applying them to the particular case in question. It 
 has been demonstrated, and satisfactorily explained in its 
 application to a sufficient number of parallel and similar 
 cases, in order to lay it down as an invariable rule, that no 
 trade can be subjected to police regulation of any kind, 
 unless its prosecution involves some harm or injury to the 
 public or to third persons, and in any case the regulation 
 cannot extend beyond the evil which is to be restrained. 
 It has also been maintained and, I think satisfactorily es-j 
 tablished, that no trade can be prohibited altogether, unless 
 the evil is inherent in the character of the trade, so that the , 
 trade, however conducted, and whatever may be the char- 
 acter of the person engaged in it, must necessarily produce ] 
 
 § 103 
 
302 POLICE REGULATIONS OF TRADES AND PROFESSIONS. 
 
 injury upon the public or upon individual third persons. 
 It has likewise been shown that, while vice, as vice, can 
 never be the subject of criminal law, yet a trade, which has 
 for its object or necessary consequence, the provision of 
 means for the gratification of a vice, may be prohibited, 
 and its prosecution made a criminal offense. These princi- 
 ples, if sustainable at all, must have a universal application. 
 They admit of no exceptional cases. If the reader has 
 given his assent to the truth of them, in their application to 
 other cases of police regulation of employments, his inabil- 
 ity to adhere to them, in their application to the police 
 regulation of the liquor trade, indicates either a lack 
 of courage to maintain his convictions in the face of popu- 
 lar clamor, or an obscurity of his judgment through his 
 sympathetic emotions, which are aroused in considering the 
 gigantic evil to be combated. 
 
 It has never been claimed that any one could be punished 
 for drunkenness, unless he thrusts the fact upon the atten- 
 tion of the public, so that it offends the sensibilities of th& 
 community, and in consequence becomes a public offense. 
 If a man displays his drunkenness on the public thorough- 
 fares to the annoyance and inconvenience of the public, he 
 can be punished therefor. But if he chooses to degrade 
 himself by intoxication in the privacy of his own home or 
 apartments, he commits no offense against the publicj, 
 and is consequently not subject to police regulation. But 
 the man who proposed to make a profit out of his proneness 
 to drunkenness, would be guilty of a public wrong, and 
 could be punished for it. It is perfectly reasonable for the 
 law to prohibit the sale of liquor to minors, lunatics, per- 
 sons under the influence of liquor and confirmed drunkards, 
 and impose a penalty upon the dealer who knowingly does 
 so In very many of the States there are statutes in which 
 it is provided, that whoever is injured by the wrongful acts 
 of a drunken person may maintain an action for damages 
 against the dealer in liquor who sold or gave the liquor 
 § 103 
 
PROHIBITION OF THE LIQUOR TRADE. 303 
 
 which caused intoxicatioa in whole or in part, where the 
 intoxicated person was neither a confirmed drunkard, nor 
 a minor, nor a lunatic, nor under the influence of liquor, 
 when he purchased the liquor. This legislation has been 
 frequently sustained by the courts in its broadest applica- 
 tion, and it is believed, has in no case been declared un- 
 constitutional, although often contested.^ So far as these 
 statutes prohibit the sale of liquor to persons who, from 
 their known weakness of character, may be expected to 
 make an improper use of it to their own harm and the 
 injury of others, and subject the dealer, who sells liquor to 
 these classes of persons, to an action for the damages that 
 third persons may have sustained from their drunken antics, 
 it cannot be doubted that the statutes are constitutional. 
 These persons, who are laboring under some mental or other 
 infirmity which renders them unable to take care of them- 
 selves, can very properly be placed under the guardianship 
 of the State, if not in all cases for their own benefit, at 
 least for the protection of the public ; and where a dealer 
 in intoxicating liquors sells to such an one, in violation of 
 the statute, he does a wrongful thing, an act prohibited by 
 a constitutional law, and he may therefore be held respon- 
 sible for every damage flowing from his wrongful act, which 
 might reasonably have been anticipated. But when the 
 statutes go farther and make the dealer responsible for 
 every wrongful act committed by any and every person 
 while in a state of intoxication, whose intoxication was 
 caused by the liquor which the dealer had sold, whether 
 the dealer knew of his aptitude to intoxication or not, they 
 can only be justified on the principle that the prosecution 
 
 1 Roth V. Eppy, 80 111. 283; Wilkerson v. Rust, 57 Ind. 172; Fountain 
 V. Draper, 49 111. 441; Church v. Hlgham, 44 Iowa, 482; Goodenough v. 
 McGrew, 44 Iowa, 670; Gaussby v. Perkins, 30 Mich. 492; Badore v. 
 Newton, 64 N. H. 117; Baker v. Pope, 2 Hun, 556; Quain v. Russell, 12 
 Hun, 376 ; Berthoff v. O'Reilley, 74 N. Y. 616 ; Baker v. Beckwith, 29 
 Ohio St. 314; State v, Ludington, 33 Wis. 107; Whitman v. Devere, 33 
 Wis. 70. 
 
 § 103 
 
304 POLICE EEGULATIONS OF TRADES AND PROFESSIONS. 
 
 of the liquor trade is unlawful in itself, and the constitu- 
 tionality of such laws must depend upon the constitutional- 
 ity of laws for the prohibition of the liquor trade in 
 general. For no one can be held responsible for damage, 
 flowing consequentially from an act of his, unless that act 
 is unlawful in itself, or he has done it in an unlawful 
 manner. If the sale of liquor is a lawful occupation he can 
 not be held for a damage that is not the result of his failure 
 to conduct the business in a lawful manner, and he cannot 
 be said to have conducted a lawful business in an unlawful 
 manner, when he sells liquor to one who may not reasona- 
 bly be expected to become intoxicated. 
 
 Is then the absolute prohibition of the liquor trade a con- 
 stitutional exercise of legislative authority under the ordi- 
 nary constitutional limitations? It maybe stated that the 
 decisions of the courts, in different parts of the country, 
 have very generally sustained laws for the prohibition of 
 the sale of intoxicating liquors, in any manner, form or bulk 
 whatever, and on the ground that the trade works an injury 
 to society, and may, therefore, be prohibited.^ 
 
 * Metropolitan Board Excise v. Barrie, 34 N. Y. 657; Wynehame v. 
 People, 3 Kern, 435; Warren v. Mayor, etc., Charleston, 2 Gray, 98; 
 Fisher v. McGirr, 1 Gray, 26; Jones v. People, 14 111. 196; Goddard v. 
 Jacksonville, 15 111. 588; People v. Hawley, 3 Gibbs, 330; Preston ».Drew, 
 33 Me. 659; State v. Noyes, 30 N. H. 279; State v. Snow, 3 K. I. 68; State 
 V. Peckham, 76. 293 ; State v. Paul, 5 R. I. 186 ; State v. Wheeler, 25 Conn. 
 290; Lincoln v. Smith, 27 Vt. 328; Sante «. State, 2 Clarke (Iowa), 165; 
 Prohibitory Am. Cases, 25 Kan. 751 (37 Am. Kep. 284); Bartemeyer v. 
 Iowa, 18 Wall. 729 ; State v. Mugler, 29 Kan. 252 (44 Am. Rep. 634) ; Perdue 
 •y. Ellis, 18 Ga. 586; Austin v. State, 10 Mo. 591; State v. Searcy, 20 Mo. 
 489; Our House v. State, 4 Greene (Iowa), 172; ZumhofE u. State, iJ. 
 526 ; State «. Donehey, 8 Iowa, 396 ; State v. Carney, 20 Iowa, 82 ; State 
 V. Baughman, 76. 497; State v. Gumey, 37 Me. 156; State ». Burgoyne, 7 
 Lea, 173 (40 Am. Eep. 60); State v. Prescott, 27 Vt. 194; Lincoln r. 
 Smith, 27 Vt. 328; State «. Brennan's Liquors, 25 Conn. 278; State o. 
 Common Pleas, 36 N. J. 72 (13 Am. Eep. 422) . " The measures best calcu- 
 lated to prevent those evUs and preserve a healthy tone of morals in the 
 community, are subjects proper for the consideration of the legislature. 
 Courts of justice have nothing to do with them, other than to discharge 
 § 103 
 
PROHIBITION OF THE LIQUOR TRADE. 305 
 
 The citations and quotations may be continued without 
 end, but the invariable argument is that the liquor trade 
 has, following in its train, certain evils, which would not 
 exist, if the trade were prohibited altogether ; conse- 
 quently, the trade may rightfully be prohibited. If the 
 necessary consequence of the sale of liquor was the intoxi- 
 cation of the purchaser, because the liquor could not be 
 used without this or other injury to the person using it and 
 to others, then the trade may be prohibited in accordance 
 with the principles, which have been established in preced- 
 ing sections of this chapter, in application to other employ- 
 ments. In such a case, the trade would be essentially 
 
 their legitimate duties in carrying into execution such laws as the legisla- 
 ture may establish, unless, indeed, they find that the legislature in mak- 
 ing a particular law, has disregarded the restraints imposed upon it by 
 the constitution of this State, or the United States." State v. Brennan, 
 25 Conn. 278. "There is, however, no occasion to pursue this topic. 
 The law in question, is, in our opinion, obnoxious to no objection, which 
 ■could be derived from the establishment oJt the doctrine advanced by the 
 defendant. It is not different in its character, although it may be more 
 stringent in some of its provisions from those numerous laws, which 
 have been passed in almost all civilized communities and in ours from the 
 -earliest settlement of our State, regulating the traffic in spirituous 
 liquors, and which are based on the power possessed by every sovereign 
 State, to provide by law, as it shall deem fit for the health, morals, peace 
 and general welfare of the State, and which, whatever may have been 
 thought of their expediency, have been invariably sustained as being ' 
 within the competency of the legislature to enact." State v. Wheeler, 
 Jb. "The weight of authority is overwhelming that no such immunity 
 has heretofore existed, as would prevent State legislatures from regu- 
 lating and even prohibiting the traffic in intoxicating drinks with a soli- 
 tary exception. That exception is the case of a law operating so rigidly 
 upon property in existence at the time of its passage, absolutely prohib- 
 iting its sale, as to amount to depriving the owner of his property." 
 Justice Miller in Bartemeyer v. Iowa, 18 Wall. 129. " There certainly are 
 provisions in all our State constitutions, which will not permit legisla- 
 tive bodies wantonly to interfere with or destroy many of the natural or 
 •constitutional rights of the citizens. Of this class are those provisions 
 which secure the freedom of the press and of speech, and the freedom of 
 debate. But we are not aware that there is any provision in our consti- 
 which would prevent the legislature from prohibiting dram selling 
 entirely." Napton, J., in Austin v. State, 10 Mo. 591. 
 
 20 § 103 
 
306 POLICE EKGULATIONS OF TRADES AND PROFESSIONS. 
 
 injurious to the public. But it does not necessarily follow 
 that the sale of the liquor will cause the intoxication of the 
 purchaser. The number of those who are likely to become 
 intoxicated by the liquor they purchase is very small, in 
 comparison with the thousands who buy and use it in mod- 
 eration, without ever approaching the state of intoxication. 
 We cannot say, therefore, that the sale of liquor necessarily 
 causes intoxication. On the contrary, the facts establish 
 the truth of the statement that cases, in which the sale of 
 liquor is followed by intoxication, constitute the exception 
 to the general rule. The liquor dealer may, and probably 
 in the majority of cases does, become responsible for the 
 intoxication that follows a sale in these exceptional cases^ 
 by knowingly selling liquor to one who is intoxicated at the 
 time, or is likely to become intoxicated, and he can undoubt- 
 edly be punished for such a wrong against society ; but the 
 main and proximate cause of these cases of intoxication is 
 the weakness of the purchaser, against which no law prob- 
 ably can furnish for him any effective protection. 
 
 But it is often urged as a justification of prohibition that 
 even a moderate use of intoxicating liquor is injurious to 
 the health. A great many people, including the present 
 writer, believe this to be true, and very probably it is. 
 But the majority of people of the present generation think 
 differently. Thousands maintain that it is a harmless in- 
 dulgence, and as many more declare it to be positively 
 beneficial. We, who are opposed to the use of intoxicating 
 liquors, except for medicinal purposes, are convinced that 
 these people are wrong ; but they are entitled to their own 
 opinions, as well as we, and it would be just as much an act 
 of tyranny to compel them to abandon their ideas and prac- 
 tices, in conformity with our own views of what is good 
 for them, as it would be to pass a law prohibiting the eat- 
 ing of hot bread because the majority of the people believe 
 it to be injurious to the health. It is true that a man may 
 be prohibited from doing that which will work an injury to 
 § 103 
 
PROHIBITION OF THE LIQUOR TRADE. 307 
 
 his offspring by the inheritance of diseases caused by the 
 prohibited practice. "While it is probably true that intoxi- 
 cating liquor, like any other stimulant, will produce a more 
 or less lasting effect upon the constitution of the person 
 addicted to its use, it is by no means a demonstrated fact 
 that its use is the cause of any constitutional disease. 
 Whatever injury can be attributed to the moderate use of 
 liquor, so far at least as our present knowledge extends, is 
 
 , functional and not constitutional. If these reasons be well 
 founded, then the liquor trade is not necessarily injurious, 
 in a legal sense, to the public ; and where injury does result, 
 it is either caused by the shortcomings of the purchaser, 
 without any participation in the wrong by the seller, as 
 where he does not know, and cannot be supposed to know, 
 that intoxication will very likely follow the sale ; or the 
 responsibility may be laid at the door of the seller, when 
 he knowingly sells to one who is likely to make an improper 
 use of it. The seller may in the latter case be punished, 
 and his right to pursue the trade thereafter may be taken 
 away altogether, as a penalty for his violation of the law 
 in this regard. But the liquor trade can not, for these 
 reasons, be prohibited altogether, if it be true that no trade 
 can be prohibited entirely, unless its prosecution is essen- 
 tially and necessarily injurious to the public. Even the 
 prohibition of saloons, that is, where intoxicating liquor is 
 sold and served, to be drunk on the premises, cannot be 
 
 justified on these grounds.^ 
 
 1 As stated already, the prohibition of the sale of intoxicating liquor- 
 has seldom been declared to be unconstitutional, but in the following 
 opinion from the Supreme Court of Indiana, which has, however, beea 
 subsequently overruled, or at least departed from, a law which prohibited 
 the manufacture of spirituous liquor was declared to be unconstitu- 
 tional : — 
 
 " The court knows, as matter of general knowledge, and is capable of 
 judicially asserting the fact, that the use of beer, etc., as a beverage, is not 
 necessarily hurtful, any more than the use of lemonade or ice cream. It is 
 the abuse, and not the use, of all these beverages that is hurtful. But the 
 legislature enacted the law in question upon the assumption that the 
 
 § 103 
 
308 POLICE EEGULATIONS OF TRADES AND PROFESSIONS. 
 
 It is quite common for th^ legislature to pass laws pro- 
 hibiting the sale of intoxicating liquors in the neighborhood 
 of schools, colleges, and lunatic asylums, and these laws 
 have uniformly been sustained as constitutional, unless in 
 some of the States they have come under the constitutional 
 prohibition for being special laws, the right to enact which 
 is taken away from the legislature by some of the consti- 
 tutions.^ Surely, if in any case prohibition laws can be sus- 
 tained on principle, their enactment would find ample justi- 
 fication in the removal of temptation to drink from those 
 who, on account of their infancy or mental deficiencies, are 
 not as able to maintain an effective resistance without this 
 protection. But if the principles heretofore developed be 
 at all reliable, as a guide in search of the constitutional 
 limitations upon the police control of trades and employ- 
 ments, these special prohibitory laws are subject to the 
 
 mannfacture and sale of beer, etc., were necessarily destructive to the 
 community; and in acting upon that assumption, in our own judgment, 
 it has invaded unwarrantably the right to private property and its use as 
 a beverage and article of traffic. 
 
 " What harm, we ask, does the mere manufacture or sale or temperate 
 use of beer do to any one? And the manufacturer or seller does not neces- 
 sarily Itnow what use is to be made by the purchaser of the article . It may 
 be a proper one. And if aa improper one, it is not the fault of the manu- 
 facturer or seller, but it is thus appropriated by the voluntary act of an- 
 other person, and by his own wrong. And will the general principle be 
 asserted that to prevent the abuse of useful things, the government shall 
 assume the dispensation of them to all the citizens — put all under guar- 
 dianship? Fire-arms and gunpowder are not manufactured and sold to 
 shoot innocent persons with, but are often so misapplied. Axes are not 
 made and sold to break heads with, but are often used for that pur- 
 pose. * * * Yet who, for all this, has ever contended that the manu- 
 facture and sale of these articles should be prohibited as being nuisances, 
 or be monopolized by government? We repeat, the manufacture and 
 sale of liquors are not necessarily hurtful, and this court has the right to 
 judicially inquire into and act upon the validity of the law in question." 
 Beabe v. State, 6 Ind. 501. 
 
 '■ Dorman v. State, 34 Ala. 216 ; Boyd v. Bryant, 35 Ark. 69 (37 Am. 
 Rep. 6 ; Trammell v. Bradley, 37 Ark. 356 ; Ex parte McClaln, 61 Cal. 436 
 (44 Am. Rep. 554) ; Bronson v. Oberlin, 41 Ohio St. 476 (52 Am. Bep. 90). 
 § 103 
 
PROHIBITION OF THE LIQUOR TRADE. 309 
 
 same constitutional objection, that the trade which they pro- 
 hibit is not essentially and necessarily harmful to society, 
 "even under the peculiar circumstances which furnish a 
 special reason for the enactment of the law. 
 
 It has been stated that the reasons usually assigned for 
 the enactment of prohibitory laws, viz. : the prevention of 
 drunkenness, will not satisfy the constitutional require- 
 ments even in the prohibition of drinking saloons, although 
 most of the drunkenness from which the State suffers is 
 caused by the existence of taverns or saloons, where liquor 
 is sold to be drunk on the premises. For it would be mani- 
 festly untrue to assert that every frequenter of a saloon 
 became intoxicated, and during intoxication did more or 
 less damage to the public, or to third persons : conse- 
 quently the sale of liquor in a saloon does not necessarily 
 bring about the intoxication of the buyer or of his friends. 
 But there is another, and an all-sufficient, reason for the 
 prohibition of drinking saloons, if the legislature should 
 deem it expedient to prohibit them. It is that they consti- 
 tute the places of meeting for all the more or less disrepu- 
 table and dangerous classes of the community, and breaches 
 of the peace of a more or less serious character almost in- 
 variably occur in bar-rooms. It is true that there are many 
 comparatively quiet saloons, where men of good social 
 standing resort, and which are to be distinguished from the 
 low groggeries where the vicious and the criminal classes 
 congregate, but the keeping of a drinking saloon cannot be 
 conducted so that public disorders cannot possibly occur, 
 and some of the most distressing breaches of the peace, 
 resulting in the death of one or more, have occurred in this 
 better class of saloons. The suppression and control of 
 the public disorders caused by the keeping of saloons con-; 
 stitute a heavy burden upon the tax payer, and the cause 
 of them may be removed by a prohibitory law, or restrained 
 and restricted in number by the imposition of a high license, 
 according as it may seem best to the law-making power. 
 
 § 103 
 
310 POLICE REGULATIONS OF TRADES AND PROFESSIONS. 
 
 As a matter of course, if the absolute prohibition of 
 drinking saloons is constitutional, it would be lawful to 
 subject them to more or less strict police regulations, 
 where the regulations have for their reasonable object the 
 prevention of some special evil which the prosecution of the 
 trade threatens to the public. Thus it has been held rea- 
 sonable to compel the closing of saloons on Sunday,^ not 
 only because the pursuit of the business would be a viola- 
 tion of the ordinary Sunday laws,^but also because there 
 is increased danger on that day of breaches of the peace in 
 bar-rooms, on account of the idleness of those persons who 
 are most likely to frequent such places. It has also been 
 held to be reasonable, for similar reasons, to prohibit the 
 sale of liquors on primary and other election days ;' on 
 court, show and fair days;* compelling the saloons to be 
 closed at a certain hour in the night,^ and in one case it 
 was maintained to be lawful for the legislature to author- 
 ize the Board of Police Commissioners to order all saloons 
 to be closed, " temporarily," whenever in their judgment 
 the public peace required it.* It has also been declared to 
 be reasonable to prohibit the erection of screens and shutters 
 before places in which liquors are sold.^ 
 
 This, therefore, is the conclusion reached after a careful 
 
 1 Hudson V. Geary, 4 R. 1. 486 ; Gabel v. Houston, 29 Tex. 336; State v. 
 liUdwig, 21 Minn. 202. 
 
 2 As to which see ante, § 76. 
 
 3 State V. Christman, 67 Ind. 328. 
 
 * Grills 0. Jonesboro, 8 Baxt. 247. 
 
 s State V. Welch, 36 Conn. 216; States. Freeman, 38 N. H. 426; Smith 
 V. Knoxville, 3 Head, 245; Maxwell v. Jonesboro, 11 Helsk. 257; Baldwin 
 V. Chicago, 68 111. 418 ; Platteville v. Bell, 43 Wis. 488. In Ward v. 
 Greenville, I Baxt. 228 (35 Am. Eep. 700), it was held to be unreasooable 
 to compel saloons to be closed between 6 p. m. and 6. a. m. But a stat- 
 ■ute prohibiting sale of liquors between 11 p. m. and 5 a. m. was held to be 
 constitutional. Hedderich v. State, 101 Ind. 564 (51 Am. Eep. 768.) 
 
 « State ». Strauss, 49 Md.288. 
 
 ' Commonwealth v. Costello, 133 Mass. 192; Commonwealth ». Casey, 
 134 Mass. 194; Shultzc. Cambridge, 38 Ohio St. 659. 
 § 10.3 
 
CONTROL OF EMPLOYMENTS IN RESPECT TO LOCALITY. 311 
 
 •consideration of all the constitutional reasons for and 
 against the prohibition of the liquor trade : the prohibi- 
 tion of the manufacture and sale of spirituous and intoxicat- { 
 ing liquors is unconstitutional, unless it is confined to the 
 prohibition of drinking saloons, and the prohibition of the 
 sale of liquor to minors, lunatics, confirmed drunkards, 
 and persons in a state of intoxication. As has already 
 been explained, there is an almost unbroken array of ju- 
 dicial opinions against this position, and there is not any 
 reasonable likelihood that there will be any immediate 
 revulsion in the opinions of the courts. But it is the duty 
 of a constitutional jurist to press his views of constitutional 
 law upon the attention of the legal world, even though they 
 place him in opposition to the current of authority. 
 
 § 104. Police control of emplosmients in respect to 
 locality.^ — Another more or less common mode of police 
 regulation of employments is the determination of the 
 localities, in which the trade will be allowed. Very many 
 trades are beneficial to society in general, and it would be 
 unconstitutional to prohibit them altogether, and yet they 
 may be subjected to whatever reasonable regulations may 
 be needed to avert or prevent some special danger, which 
 is threatened by the prosecution of them. Very many 
 instancesof such regulations have been given in preceding 
 sections of this chapter. A trade may be highly dangerous 
 or offensive to the people, when prosecuted in one locality, 
 while the danger or offensiveness may be dissipated 
 altogether or considerably abated, if it is carried on in a 
 diflPerent community. Machine shops and the cotton trade 
 may be cited as a good example of trades, which are more 
 dangerous in one locality than in some other ; while a soap 
 factory or a tannery may be referred to as illustrating cases, 
 in which ofiensiveness would constitute a serious objection 
 
 1 Bespost § 122c in respect to the conflnement of objectionable trades 
 to certain localities. 
 
 § 104 
 
312 POLICE REGULATIONS OF TRADES AND PROFESSIONS. 
 
 to their prosecution in the residential portion of a city. It 
 would not constitute any unreasonable interference with the 
 right to pursue without restraint any lawful trade or employ- 
 ment, if the legislative authority should require the 
 prosecution of such trades and occupations within a certain 
 area of a populous city, and prohibit them outside of such 
 area. This power has been often exercised, and but rarely- 
 questioned. It has been held reasonable to prohibit the 
 keeping of slaughter-houses in certain parts of the city,* 
 and to exclude hacks from certain streets.* But the pro- 
 hibition as to locality must be reasonable, in order that it 
 may not oJ5end the constitutional limitations. If the area, 
 in which the prosecution of a useful trade is prohibited, is so 
 extensive that it amounts to a practical prohibition of the 
 trade, the regulation will be unconstitutional. Thus it has 
 been held to be unreasonable to prohibit the establishment 
 of a steam engine in the city.* A law has also beea 
 declared to be unconstitutional, which prohibited the manu- 
 facture of cigars in tenement houses, on the ground that the 
 public health or comfort was endangered by the prosecution 
 of the trade in such places.* Not only has the legislature 
 exercised the power of confining the prosecution of certain 
 trades to certain localities, but it has very often, particularly 
 in respect to the vending of fresh meat and vegetables,^ 
 prohibited the plying of the trade in any other place than 
 the market, established and regulated by government. 
 This regulation is very common in ail parts of this 
 country, and has frequently been the source of litigation; 
 but it has generally been held to be reasonable.* In th& 
 
 1 Cronin v. People, 82 N. Y. 318 (37 Am. Eep.564); Metropolitan Board 
 of Health v. Helster, 37 N. Y. 661; Milwaukee v Gross, 21 Wis. 241.> 
 ' Commonwealth v. Stodder, Cnsh. 561. 
 ' Baltimore v. Bedecke, 49 Md. 217 (33 Am. Rep. 239). 
 * Matter of Jacobs, 98 N. Y. 98. 
 6 Buffalo w. Webster, 10 Wend. 99; Bush v. Seabury 8 Johns. 418; 
 Winnsboro v. Smart, 11 Kich. L. 651 ; Bowling Green v. Carson, 10 Bush^ 
 64; New Orleans v. Stafford, 27 La. Ann. 417 (21 Am. Rep. 563) ; Wart- 
 § 104 
 
CONTROL OF EMPLOYMENTS IN RESPECT TO LOCALITY. 31S 
 
 case of New Orleans v. Stafford,^ the Supreme Court of 
 Louisiana presents forcibly the reasons which justify this 
 police regulation : 
 
 " Has the legislature the power to make the regulation 
 which it made by this act of the twenty-sixth of February, 
 1874, declaring that private markets shall not be established, 
 continued or kept open within twelve squares of a public 
 market? This question, we think, must be answered in the 
 affirmative. And the power arises from the nature of 
 things, and what is termed a police power. It springs from 
 the great principle, solus populi suprema est lex. There 
 is in the defendant's case no room for any well grounded 
 complaint of the violation of a vested private right, for the 
 privilege, if he really possessed it, of keeping a private 
 market, was acquired subordiuately to the right existing in 
 the sovereign to exercise the police power to regulate 
 the peace and good order of the city, and to provide 
 for and maintain its cleanliness and salubrity. By way 
 of illustrating this necessarily existing power to regu- 
 late the number, location and management of markets, take 
 the city of New Orleans, in a warm climate, located in a low 
 district of country, surrounded by marshes and swamps,^ 
 which in the hot season under favorable conditions envelopes 
 its large popuiatioa in a malarious atmosphere. Under 
 such circumstances the danger of epidemics becomes immi- 
 nent. It behooves the city authorities at such periods to 
 be on the alert to obviate local causes of disease within the 
 limits of the city. Among such causes the decay of animal 
 and vegetable matter is a prominent one. The markets 
 therefore must on that account be strictly attended to and 
 such measures adopted in regard to them as in the judg- 
 
 man v. Philadelphia, 33 Pa. St. 202; St. Louis v. Weber, 14 Mo. 647; Ash 
 o. People, 11 Mich. 347; LeClalre ». Davenport, 13 Iowa 210. But see 
 contra Bethune v. Hayes, 28 Ga. 660; Caldwell ». Alton, 34 111. 416; 
 Bloomington ». Wahl, 46 111. 489. 
 1 27 Lu. Ann. 417 f51 Am. Rep 663.) 
 
 § 104 
 
314 POLICE EEGULATIONS OF TEADE8 AND PKOFESSIONS. 
 
 ment of the proper authorities, the public health may 
 require." * * * " We presume it will not be denied that 
 under circumstances of peril and emergency the law-maker 
 would have the right to abolish or suspend an occupation 
 imperiling the public safety. This power is inherent in him. 
 He may exercise it prospectively for prevention as well as 
 pro rata, for immediate effect. It is within his discretion 
 when to exercise this power and persons under license to 
 pursue such occupations as may in the public need and 
 interest be affected by the exercise of the police power, 
 embark in those occupations subject to the disadvantages 
 which may result from a legal exercise of that power." ^ 
 
 ' "The necessity of a public market, where the producers and con- 
 sumers of fresh provisions can be brought together at stated times for 
 the purchase and sale of those commodities is very apparent. There is 
 nothing which more imperatively requires the constant supervision of 
 some authority which can regulate and control it. Such authority in this 
 country is seldom if ever vested in individuals. It can never be so well 
 placed, as where it is put into the hands of the corporate officers who 
 represent the people immediately interested. A municipal corporation, 
 comprising a town of any considerable magnitude, without a public 
 market subject to the regulation of its own local authorities, would be 
 an anomaly which at present has no existence among us. The State 
 might undoubtedly withhold from a town or city the right to regulate its 
 markets, but to do so would be an act of tyranny, and a gross violation 
 of the principle universally conceded to be just, that every community 
 whether large or small, should be permitted to control, in their own way^ 
 all those things which concern nobody but themselves. The daily sup- 
 ply of food to the people of a city is emphatically their own affair. It is 
 true that the persons who bring provisions to the market have also a sort 
 of interest in it, but not such an interest as entitles them to a voice in 
 its regulation. The laws of a market (I am now using the word in its 
 larger sense) are always made by the persons whareside at the place, and 
 that whether they be buyers or sellers. It is, therefore, the common law 
 of Pennsylvania, that every municipal corporation which has power to 
 make by-laws and establish ordinances to promote the general welfare 
 and preserve the peace of a town or city, may fix the time or places of 
 holding public markets for the sale of food, and make such other regula- 
 tions concerning them as may conduce to the public interest. We take 
 this to be the true rule, because it is necessary and proper, in harmony 
 with the sentiments of the people, universally practiced by the towns, 
 
 § 104 
 
MONOPOLIKS. 315 
 
 The same principles would govern in their application 
 to cases of a similar character. It cannot be doubted, for 
 -example, that the State may directly, or through a munici- 
 pal corporation, establish a public slaughter-house, where 
 butchers must bring their cattle to be slaughtered, and 
 prohibit the slaughtering of cattle elsewhere. Compelling 
 persons to pursue such callings in public places, estab- 
 lished and regulated by the State, is looked upon as rea- 
 sonable. But when the State, instead of establishing a 
 public market or slaughter-house, and placing it under 
 the management and control of State officials, grants to a 
 private individual or corporation the exclusive privilege 
 of maintaining a public market or slaughter-house, serious 
 objections are raised to the constitutionality of the leg- 
 islative act, and the franchise is often claimed to be void 
 because it creates a monopoly. 
 
 § 105. Monopolies. — As a general proposition, it may 
 be conceded that the creation of a monopoly out of an ordi- 
 nary calling is unconstitutional. But it will not do to say 
 that all monopolies are void. Every man has, under reason- 
 able regulations, a right to pursue any one of the ordinary 
 callings of life, as long as its pursuit does not involve evil 
 or danger to society. And a law which granted to one man, 
 or a few individuals, the exclusive privilege of prosecuting 
 the trade, would be in violation of the constitutional rights 
 of those who are prohibited from pursuing the same call- 
 ing. This is clear. On the other hand, when the State be- 
 stows upon one or more the privileges of pursuing a calling, 
 or trade, the prosecution of which is not a common natural 
 right, a monopoly is created, but no right of the individual 
 is violated, for with the abolition of the monopoly thus 
 created would disappear all right to carry on the trade. 
 The trade never existed before as a lawful calling. Such 
 
 and universally submitted to by the residents of the country." Wartman 
 ■V. PliUadelphia, 33 Pa. St. 202. 
 
 § 105 
 
316 POLICE EEGULATI0N8 OF TRADES AND PROFESSIONS. 
 
 monopolies are valid, and free from all constitutional ob- 
 jections.! The grant of exclusive franchises is a matter of 
 relatively common occurrence, and is rarely questioned. 
 
 As long as the question is confined to the case of excep- 
 tional franchises, as for example, railroads, bridges, ferries, 
 and the like, there seems to be no doubt of the power of the 
 State to grant an exclusive franchise. But when the same 
 principle is applied to the more common and numerous 
 franchises, as for example, a more or less extraordinary use 
 of the streets of a city, the cases do not always support the- 
 distinctions that have been made. On the one hand it has 
 been held to be reasonable to grant to one or more the ex- 
 clusive right to remove the carcasses of animals and other- 
 offal of a city.^ But, on the other hand, it has been held in. 
 some States, although a different conclusion is reached in 
 other States, that the exclusive grant to a company of the 
 right to furnish the city with gas, was unlawful and void, as 
 being a monopoly: "As, then, no consideration what- 
 ever, either of a public or private character, was reserved 
 for the grant ; and as the business of manufacturing 
 and selling gas is an ordinary business, like the manu- 
 facturing of leather, or any other article of trade in 
 respect to which the government has no exclusive pre- 
 rogative, we think that so far as the restriction of other 
 persons than the plaintiffs from using the streets for the 
 purpose of distributing gas by means of pipes, can fairly 
 be viewed as intended to operate as a restriction upon 
 its free manufacture and sale, it comes directly within the 
 definition and description of a monopoly ; and although we 
 have no direct constitutional provision against a monopoly, 
 yet the whole theory of a free government is opposed to 
 such grants, and it does not require even the aid which may 
 be derived from the Bill of Rights, the first section of which 
 
 1 Cooley on Torts, pp. 277, 278. 
 
 2 Vandlne, Petitioner, 9 Pick. 187 (7 Am. Dec. 361) ; Elver Rendering 
 Co. V. Behr, 7 Mo. App. 845. 
 
 § 105 
 
MONOPOLIES. 317 
 
 declares ' that no man or set of men are entitled to exclusive 
 public emoluments ' to render them void." ^ 
 
 Certainly it is a franchise to make excavations for the lay- 
 ing of pipes for the distribution of the gas, very different 
 from " the manufacture of leather ;" and being a franchise, 
 the enjoyment of it may be made an exclusive privilege. 
 In Tennessee it has been held that even if monopolies in 
 general are prohibited, it is nevertheless competent to grant 
 the exclusive right to a company to supply a city with water 
 for a term of years. ^ In Iowa, in a case involving much 
 doubt, it was declared to be unreasonable to grant to one 
 person the exclusive right to run omnibuses in the city.' 
 It is of tea stated, that the copyright and the patent of an 
 invention are monopolies, which are permissible by law. 
 But it seems to me that they are monopolies only so far as 
 they make the right of manufacture exclusive. If the com- 
 mon-law theory in respect to these subjects be correct, that 
 there is no natural right to the exclusive manufacture of 
 one's own inventions and intellectual productions, then the 
 grant of the exclusive right to manufacture is a monopoly, 
 and cannot be better sustained than a monopoly of the man- 
 ufacture of sugar or any other product. But the products 
 of mental labor, when they take the shape of a book or an 
 invented machine, ought to be as secure to the producer, 
 as the products of manual labor, and it is the possible un- 
 conscious recognition of the justice of these claims, which 
 brings about popular justification of these so-called mo- 
 nopolies. 
 
 Notwithstanding the contradictions of the authorities, it 
 is not difficult to determine on principle, as enunciated above, 
 that the grant of privileges may be made a monopoly, but 
 
 1 Norwich Gas-light Co. v. Norwich City Gas Co., 25 Conn. 19; State v. 
 •Cincinnati, etc., Gas Co., 18 Ohio St. 292. But, see contra, State, v. Mil- 
 waukee Gas-light Co., 29 Wis. 454. 
 
 - Memphis v. Water Co., 5 Heisk. 492. 
 
 » Logan V. Payne, 43 Iowa 524 (22 Am. Eep. 261). 
 
 § 105 
 
318 POLICE EEQULATI0N8 OF TRADES AND PROFESSIONS. 
 
 that a monopoly cannot be made of the ordinary lawful oc- 
 cupations. But the difficulty becomes almost inexplicable, 
 when the exclusive privilege is granted of carrying on a bus- 
 iness, which is prohibited to others, because the unlimited 
 pursuit of it works an injury to society. Thei-e is no doubt 
 that a trade or occupation, which is inherently and neces- 
 sarily injurious to society, may be prohibited altogether ; 
 and it does not seem to be questioned that the prosecution 
 of such a business may be assumed by the government and 
 managed by it as a monopoly.^ If it is lawful for the State 
 to prohibit a particular business altogether, or to make a 
 government monopoly of it, the pursuit of such a business 
 would, if permitted to any one, be a privilege or franchise, 
 and like any other franchise may be made exclusive. This 
 is but a logical consequence of the admission, that the State 
 has the power to prohibit the trade altogether. Such an ad- 
 mission is fatal to a resistance of the power to make it a 
 monopoly. Not only is this true in respect to the prosecu- 
 tion of the prohibited trade, but the same principle applies 
 to those cases, where the law provides that a particular trade 
 shall be conducted in certain buildings or localities. We 
 have seen that it is reasonable to prohibit the prosecution 
 of certain trades except within a certain area, or in certain 
 public buildings, owned and managed by the State or town. 
 But the same objection is raised, if the State or town, instead 
 of constructing and maintaining these public buildings, au- 
 thorizes a private individual or corporation to erect and 
 conduct them under police regulations. The monopoly, 
 thus created, is not any more objectionable on principle, be- 
 cause it does not interfere to any greater degree, or in any 
 different way, with the liberties of others who are prohibited, 
 than the erection and maintenance of such buildings by the 
 government. If the State has the constitutional power to 
 
 ' For example, in the regulation of the liquor trade, it was held to be 
 constitutional to prohibit the sale of liquor, except by the agents of the 
 town. States. Brennan's Liquors, 25 Conn. 278. 
 § 105 
 
MONOPOLIES. 319 
 
 prohibit the prosecution of such a trade in all other buildings, 
 the prohibition is equally irksome, whether the buildings 
 are owned by the public or by private individuals ; and the 
 grant of the right to prosecute an otherwise prohibited 
 trade in the buildings of a private individual or corporation 
 would create a privilege, and may therefore be made a mo- 
 nopoly. If there is any valid objection to this regulation, 
 it will be found to apply equally to all like cases, whether 
 the buildings in which the trade is required to be conducted 
 belongs to the State or private persons ; and the regulation 
 is unconstitutional, because the prosecution of the business 
 anywhere will not produce an injury to the public. 
 
 This doctrine has been established and applied to the case 
 of slaughter-houses. The legislature of Louisiana provided 
 for the erection by a certain private corporation of slaugh- 
 ter-houses on the Mississippi, near New Orleans, to which 
 all butchers within a certain area were required to bring 
 their cattle for slaughtering. The law compelled the cor- 
 poration to provide convenient accommodation for all 
 butchers, who applied, upon the payment of a reasonable 
 compensation, and the slaughtering of animals elsewhere 
 was absolutely interdicted. Suits were brought to resist 
 the enforcement of the law, on the ground that it interfered 
 with the constitutional rights of those interdicted and cre- 
 ated a monopoly, not allowed by the constitution. The 
 cases finally reached the Supreme Court of the United 
 States, and the law was declared, by a divided court, to be 
 constitutional. In delivering the opinion of the court Jus- 
 tice Miller said : "It cannot be denied that the statute un- 
 der consideration is aptly framed to remove from the more 
 densely populated part of the city the noxious slaughter- 
 houses, and large and offensive collections of animals 
 necessarily incident to the slaughtering business of a large 
 city, and to locate them where the convenience, health and 
 comfort of the people require they shall be located. And 
 it must be conceded that the means adopted by the act for 
 
 §. 105 
 
320 POLICE EEGULATIONS OF TEADES AND PEOFESSIONS. 
 
 this purpose are appropriate, are stringent, and effectual. 
 But it is said that, in creating a corporation for this purpose 
 and conferring upon it exclusive privileges — which it is said 
 constitute a monopoly — the legislature has exceeded its 
 power. If this statute had imposed on the city of New 
 Orleans precisely the same duties, accompanied by the same 
 privileges, which it has on the corporation which it created, 
 it is believed that no question would have been raised as to 
 its constitutionality. In that case the effect on the butch- 
 ers' pursuit of their occupation and on the public would 
 have been the same as it is now. Why cannot the legisla- 
 ture confer the same powers on another corporation, created 
 for a lawful and useful public object, that it can on the 
 municipal corporation already existing? That wherever 
 a legislature has the right to accomplish a certain result, and 
 that result is best attained by means of a corporation, it 
 has the right to create such a corporation, and to endow it 
 with the power necessary to eflPect the desired and lawful 
 purpose, seems hardly to admit of debate. The proposition 
 is ably discussed and affirmed in the case of McCulloch v. 
 State of Maryland in relation to the power of Congress to 
 organize the bank of the United States to aid in the fiscal 
 operations of the government. * * * 
 
 " Unless, therefore, it can be maintained that the exclu- 
 sive privileges granted by this charter for the corporation, 
 is beyond the power of the legislature of Louisiana, there 
 can be no Just exception to the validity of the statute. And 
 in this respect we are not able to see that these privileges 
 are especially odious or objectionable. The duty imposed 
 as a consideration for the privilege is well defined, and its 
 enforcement well guarded. The prices or charges to be 
 made by the company are limited by the statute, and we 
 are not advised that they are on the whole exorbitant or 
 unjust." 
 
 " The proposition is, therefoie, reduced to these terms : 
 Can any exclusive privilege be granted to any of its 
 § 105 
 
MONOPOLIES. 321 
 
 •citizens, or to a corporation, by the legislature of the 
 State? * * * 
 
 "But it is to be observed, that all such references 
 are to monopolies established by the monarch in dero- 
 gation of the rights of the subjects, or arise out of 
 transactions in which the people were unrepresented and 
 their interests uncared for. The great Case of Monopolies, 
 reported by Coke, and so fully stated in the brief, was un- 
 doubtedly a contest of the Commons against the monarch. 
 The decision is based upon the ground that it was against 
 common law and the argument was aimed at the unlawful 
 assumption of power by the crown ; for whoever doubted 
 the authority of Parliament to change or modify the common 
 law ? The discussion in the House of Commons cited from 
 Macaulay clearly establishes that the contest was between 
 the crown and the people represented in Parliament. 
 
 ' ' But we think it may be safely affirmed that the Parlia- 
 ment of Great Britain, representing the people in their leg- 
 islative functions, and the legislative bodies of this country, 
 have from time immemorial to the present day, continued 
 to grant to persons and corporations privileges — privileges 
 denied to other citizens — privileges which come within any 
 just definition of the word monopoly, as much as those now 
 under consideration : and that the power to do this has 
 never been questioned or denied. Nor can it be truthfully 
 <3enied that some of the most useful and beneficial enter- 
 prises set on foot for the general good, have been made 
 successful by means of these exclusive rights, and could 
 only have been conducted to success in that way. 
 
 " It may, therefore, be considered as established, that the 
 authority of the legislature of Louisiana to pass the present 
 .statute is ample, unless some restraint in the exercise of 
 that power be found in the constitution of that State, or in 
 the amendments to the constitution of the United States." 
 
 "The statute under consideration defines these localities, 
 and forbids slaughtering in any other. It does not, as has 
 
 21 § 105 
 
322 POLICE REGULATIONS OP TRADES AND PROFESSIONS. 
 
 been asserted, prevent the butcher from doing his own 
 slaughtering. On the contrary, the Slaughter-House Com- 
 pany is required, under aheavy penalty, to permit any person 
 who wishes to do so, to slaughter in their houses ; and they 
 are bound to make ample provision for the convenience of all 
 the slaughtering for the entire city. The butcher then is still 
 permitted to slaughter, to prepare and to sell his own meats ; 
 but he is required to slaughter at a specified place and to 
 pay a reasonable compensation for the use of the accommo- 
 dations furnished him at that place. The wisdom of the 
 monopoly granted by the Legislature may be open to ques- 
 tion, but it is difficult to see a justification for the assertion 
 that the butchers are deprived of the right to labor in their 
 occupation, or the people of their daily service in prepar- 
 ing food, or how this statute, with the duties and guards 
 imposed upon the company, can be said to destroy the bus- 
 iness of the butcher, or seriously interfere with its pur- 
 suit." 1 
 
 1 Opinion of J. Miller in Slaughter-House Cases, 16 Wall. 36. C.J. 
 Chase and JJ. Field, Swayne and Bradley, dissent. In delivering his dis- 
 senting opinion, Justice Field said : "By the act of Louisiana, within the 
 three parishes named, a territory exceeding one thousand one hundred 
 square miles, and embracing over two hundred thousand persons, every 
 man who pursues the business of preparing animal food for market must- 
 take his animals to the buildings of the favored company and must per- 
 form his work in them, and for the use of the buildings must pay a pre- 
 scribed tribute to the company, and leave with it a valuable portion of 
 each animal slaughtered. Every man in these parishes who has a horse 
 or other animal for sale, must carry him to the yards and stables of the 
 company, and for their use pay a like tribute. He is not allowed to do 
 his work in his own buildings or take his animals to his own stables, or 
 keep them in his own yards, even though they should be erected in the 
 same district as the buildings, stables and yards of the company, and 
 that district embraces over eleven hundred square miles. The prohibi- 
 tions imposed by this act upon butchers and dealers In cattle in these 
 parishes, and the special privileges conferred upon the favorite corpora- 
 tion, are similar in principle and as odious in character as the restrictions 
 imposed in the last century upon the peasantry in some parts of France, 
 where, as says a French writer, the peasant was prohibited to ' hunt on 
 his own lands, to fish in his own waters, to grind at his own mill, to 
 § 105 
 
MONOPOLIES. 323 
 
 This is not the only case in which the right of the govern- 
 ment to create such a monopoly has been sustained. In 
 Iowa, a law was sustained, which granted to private individ- 
 
 cook at his own oven, to dry his clothes on his own machines, to whet 
 his instruments at his own grindstone, to make his own wine, his oil and 
 his cider at his own press, * * * or to sell his commodities at the 
 public markets. The exclusive right of all these privileges was vested 
 in the lords of the vicinage. The history of the most execrable tyranny 
 of ancient times,' says the same writer, ' offers nothing like this. This 
 category of oppressions cannot be applied to a free man, or to the peas- 
 ant, except in violation of his rights.' 
 
 "But if the exclusive privileges conferred upon the Louisiana corpora- 
 tion be sustained, it is not perceived why exclusive privileges for the 
 construction and keeping of ovens, machines, grindstones, wine presses, 
 and for all the numerous trades and pursuits for the prosecution of which 
 buildings are required, may not be equally bestowed upon other 
 corporations or private individuals and for periods of indefinite dura- 
 tion. * * * This equality of right, with exemption from all dispar- 
 aging and partial enactments, in the lawful pursuits of life, throughout 
 the whole country, is the distinguishing privilege of citizens of the United 
 States. To them, everywhere, all pursuits, all professions, all avoca- 
 tions are open without other restrictions than such as are imposed 
 equally upon all others of the same age, sex, and condition. The State 
 may prescribe such regulations for every pursuit and calling of life as 
 will promote the public health, secure the good order and advance the 
 general prosperity of society, but when once prescribed, the pursuits or 
 calling must be free to be followed by every citizen who is within the 
 conditions designated, and will conform to the regulations. This is the 
 fundamental idea upon which our institutions rest, and unless adhered 
 to in the legislation of the country our government will be a republic 
 only in name. * * * 
 
 <' The keeping of a slaughter-house is part of, and Incidental to, the 
 trade of a butcher — one of the ordinary occupations of human life. To 
 compel a butcher, or rather all the butchers of a large city and an exten- 
 sive district, to slaughter their cattle in another person's slaughter-house 
 and pay him a toll therefor, is such a restriction upon the trade, as mate- 
 rially to interfere with its prosecution. It is onerous, unreasonable, 
 arbitrary and unjust. It has none of the qualities of a police regulation. 
 If it were really a police regulation, it would undoubtedly be within the 
 power of the legislature. That portion of the act which requires all 
 slaughter-houses to be located below the city, and to be subjected to in- 
 spection, etc., is clearly a police regulation. That portion which allows 
 no one but the favored company to build, own, or have slaughter-houses 
 is not a police regulation, and has not the faintest semblance of one," 
 
 § 105 
 
324 POLICE EEGULATION8 OF TRADES AND PBOFESSIONS. 
 
 uals the exclusive right to erect and maintain a public mar- 
 ket in which all vendors of fresh meat and vegetables were 
 required to ply their trade.* And in Louisiana it was held 
 that, not only may the municipality of New Orleans grant 
 to private persons the exclusive privilege of erecting and 
 maintaining a public market, in partnership with the city, 
 but that the city council cannot legislate in respect to the 
 regulation of the markets, without consulting the partners, 
 where the regulation is likely to affect the financial in- 
 terest of the partnership.^ So, also, it has been held in 
 Kansas, that a law is not unconstitutional which restricts 
 the sale of liquors to druggists and for special purposes.' 
 On the other hand, in an early case in New York, it was 
 declared to be unconstitutional to prohibit persons in gen- 
 eral the manufacture of pressed hay in the thickly settled 
 parts of a city, on account of the danger of fire, and grant 
 to one or more the exclusive privilege of engaging in that 
 business within the prohibited district. The court says: — 
 
 " If the manufacture of pressed hay within the compact 
 parts of the city is dangerous in causing or promoting fires, 
 the common council have the power expressly given by their 
 charter to prevent the carrying on of such manufacture ;but 
 as all by-laws must be reasonable, the common council can 
 not make a by-law which shall permit one person to carry 
 on the dangerous business and prohibit another who has 
 an equal right from pursuing the same business." * 
 
 In a case parallel with the slaughter-house cases of Louis- 
 iana, the city of Chicago passed an ordinance designating 
 certain buildings for slaughtering all animals intended for 
 sale or consumption in the city, the owners of the buildings 
 
 1 Le Claire v. Davenport, 13 Iowa, 210, overruling Davenport v. Kelly, 
 7 Iowa, 109, 110. See the dissenting opinion in the latter case. 
 
 2 New Orleans v. Gnillotte, 12 La. Ann. 818. 
 
 * Intoxicating Liquor Cases, 25 Kan. 751 (37 Am. Kep. 284). See In 
 re Euth, 32 Iowa, 253. 
 
 * Mayor City of Hudson v. Thome, 7 Paige, 261. 
 
 § 105 
 
MONOPOLIES. 325 
 
 being granted for a specified period the exclusive privilege 
 of having all such animals slaughtered in their establish- 
 ment, and exacting a certain fee from the owners of ani- 
 mals so slaughtered. In passing upon the constitutionality 
 of this law, the Supreme Court of Illinois pronounced the 
 following opinion : " The charter authorizes the city author- 
 ities to license or regulate such establishments. When that 
 body has made the necessary regulations, required for the 
 health or comfort of the inhabitants, all persons inclined to 
 pursue such an occupation should have an opportunity of con- 
 forming to such regulations ; otherwise the ordinance would 
 be unreasonable and tend to oppression. Or if they should 
 regard it for the interest of the city that such establishments- 
 should be licensed, the ordinance should be so framed that 
 all persons desiring it might obtain licenses by conforming 
 to the prescribed terms and regulations for the government 
 of such business. We regard it neither as a regulation nor a 
 license of a business to confine it to one building or to give it 
 to one individual. Such an action is oppressive, and creates 
 a monopoly that never could have been contemplated by 
 the genera] assembly. It impairs the rights of all other 
 persons, and cuts them off from a share in not only a legal, 
 but a necessary, business. Whether we consider this as an 
 ordinance or a contract, it is equally unauthorized, as being 
 opposed to the rules governing the adoption of municipal 
 by-laws. The principle of the equality of rights is violated 
 by this contract. If the common council may require all of 
 the animals for the consumption of the city to be slaughtered 
 in a single building, or on a particular lot, and the owner 
 be paid a specific sum for the privilege, what would pre- 
 vent the making a similar contract with some other person 
 that all of the vegetables or fruits, the flour, the groceries, 
 the dry goods, or other commodities should be sold on his 
 lot and he receive a compensation for the privilege? We 
 can see no difl'erence in principle." ^ 
 
 1 Citv of Chicago i;. Rnmpff,45 111.90. 
 
 § 105 
 
326 POLICE EEGDLATIONS OF TRADES AND PROFESSIONS. 
 
 This presentation of tiie subject readily indicates an 
 almost hopeless contradiction of authorities ; but it seems 
 to be without doubt, that the doctrine laid down by the 
 Supreme Court of the United States in the Slaughter-house 
 Cases will ultimately come to be recognized as the correct one. 
 
 But there is always this limitation to be recognized upon 
 the power to make a monopoly of any trade, to be con- 
 ducted by itself or by some private individual or corpora- 
 tion to whom it is granted as a privilege, viz. : that the 
 general prosecution of the trade or occupation, by every one 
 who chooses to engage in it, produces injurious results 
 which can only be avoided by making a monopoly of the 
 trade. In all parts of the civilized world, the transporta- 
 tion of the mails has become a government monopoly; and 
 the railroads and the telegraph in Europe are for the most 
 part in the hands of the government. In our own country 
 it has been declared by the Supreme Court of the United 
 States, that it would be a legitimate assumption of power 
 for the United States to make a government monopoly of 
 the management of railroads and the telegraph, and appro- 
 priate to its use the existing lines of railroad and telegraph.^ 
 
 Whether it is impossible for the railroads and telegraph 
 and post-office to be conducted by private individuals or 
 corporations, is a question about which there is a divided 
 opinion. In respect to the post-office, the assumption of 
 its management by government is so universal at the 
 present day that the objections to this monopoly are hardly 
 worthy of a serious consideration, for it is firmly rooted in 
 public opinion that this is a legitimate exercise of govern- 
 mental authority. The same reasons which would justify 
 the post-office monopoly, would be sufficient to establish 
 a claim in favor of a railroad or telegraph monopoly. 
 They are all common means of intercourse and intercom- 
 
 1 Ch. J. Waite in Pensacola, etc., R. E. Co. v. West. Union Tel. Co., 96 
 U.S.]. 
 
 § 105 
 
MONOPOLIES. 327 
 
 munication among people of the same and of different coun- 
 tries, and might very properly be compared with the 
 governmental control of the public highways on land and on 
 water. And whatever serious doubts may be entertained 
 by the philosopher and student concerning the legal pro- 
 priety of such government monopolies ; in these days of 
 labor agitation and gigantic railroad and telegraph combi- 
 nations, when a collision between the capitalist and the 
 workingman stops the wheels of commerce, and brings all 
 commercial intercourse to an end as long as the disagreement 
 continues, public opinion will be very willing to indorse any 
 reasonable proposition to place the management of railroads 
 and telegraphs in the hands of the national government. 
 
 But the application of this principle to practical politics 
 is very likely to result in an abuse of it, and the student of 
 European politics meets with all sorts of monopolies, almost 
 as varied and numerous as they were in France under the 
 ancient regime, the only difference being that the general 
 government, and not the privileged classes, own the monopo- 
 lies. Thus, for example, in most of the European States, 
 the preparation and manufacture of tobacco and cigars has 
 been made a government monopoly. The real object of the 
 monopoly is to increase the revenue of the country, but 
 on no principle of constitutional law could such a monopoly 
 be justified. There may in the future be attempts in this 
 country to create monoplies out of trades and occupa- 
 tions, the prosecution of which by private indiyiduals and 
 corporations would not necessarily inflict injury upon the 
 public. But a resort to the courts will furnish an ample 
 remedy, if public opinion has not grown accustomed to a 
 disregard of constitutional limitations and the rights of in- 
 dividuals. 
 
 § 105 
 
CHAPTEE X. 
 
 POLICE REGULATIONS OF REAL PROPERTY, 
 
 Sbctiost 115. What is meant by "private property in land? " 
 
 116. Regulation of estates — Vested rights. 
 
 117. Interests of expectancy. 
 
 118. Limitation of the right of acquisition. 
 
 119. Begnlation of the right of alienation. 
 
 120. Involuntary alienation. 
 
 121. Eminent domain. 
 
 121a. Exercise of power regulated by legislature. 
 1216. Public purpose, what is a. 
 121c. What property may be taken. 
 121d. What constitutes a taking. 
 121e. Compensation, how ascertained. 
 
 122. Regulation of the use of lands — What is a nuisance? 
 122a. What is a nuisance, a judicial question. 
 
 1226. Unwholesome trades in tenement bouses may be prohibited.. 
 
 122c. Confinement of objectionable trades to certain localities. 
 
 122(2. Regulation of burial grounds. 
 
 122c. Laws regulating the construction of wooden buildings. 
 
 122/. Regulation of right to hunt game. 
 
 122g. Abatement of nuisances — Destruction of buildings. 
 
 123. How far the use of land may be controlled by the require- 
 
 ment of license. 
 
 124. Improvement ol property at the expense, and against the- 
 
 will, of the owner. 
 
 125. Regulation of non-navigable streams — Fisheries. 
 125a. Conversion of non-navigable into navigable streams. 
 
 126. Statutory liability of lessors for the acts of lessees. 
 
 127. Search warrants. 
 
 128. Quartering soldiers in private dwellings. 
 
 129. Taxation. 
 
 § 115. What is meant by " private property in 
 land? " — An accurate answer to this question is exceed- 
 ingly important, because attacks have repeatedly been made 
 upon the existing land tenure of England and the United 
 States by political economists, as being the chief cause of 
 human woes 3 and promises are made of the advent of an 
 
 § 115 (328) 
 
WHAT IS MEANT BY " PKIVATE PROPERTY IN LANDS? " 329 
 
 era of universal prosperity, only a little short of millenium, 
 if private property in land be only abolished. The latest 
 writer upon this subject, Mr. Henry George, has created no 
 little stir by his vigorous attacks upon private property in 
 land, and has succeeded, in no small degree, in unsettling 
 preconceived notions of the right to own land. Our interest 
 in this connection, as a jurist and a student of police econo- 
 mics, lies chiefly in Mr. George's conceptions of the exist- 
 ing law of real property, and the meaning he and other 
 political economists attach to the phrase " private property 
 in land." If we have not mistaken the writer's main idea, 
 it is no less and no more than what is set forth by Mr. 
 Herbert Spencer in his Social Statics,^ with a greater display 
 of rhetoric, however, and an elaborate scheme for the confis- 
 cation of the so-called " private property in land." Both 
 writers present their views under the impression that the 
 existing law recognizes an absolute right of private prop- 
 erty in land, and they both propose that this private prop- 
 erty be abolished, and land become the common property 
 of all, of the State or society. 
 
 Mr. Spencer's entire argument is based upon his first 
 principle of sociology: " Every man has freedom to do all 
 that he wills provided he infringes not the equal freedom 
 of any other man," and in applying this principle — which 
 we most heartily indorse as the ruling principle of police 
 power in the United States,^ and the necessary fundamental 
 principle in every system of sociology in a free State — to 
 the right of property in land, he maintains that no one 
 ' ' may use the earth in such a way as to prevent the rest 
 from similarly using it ; seeing that to do this is to assume 
 greater freedom than the rest, and consequently to break 
 the law." Both writers maintain that land is the free gift 
 of nature, and must ever remain the inalienable property of 
 society. But Mr, Spencer, readily perceiving the practical 
 
 1 pp. 130-144. 
 
 2 See ante, sees. 1, 2. 
 
 § 115 
 
330 POLICE KEGULATION OF EEAL PEOFERTr. 
 
 objections that might be raised to his scheme of a commoQ 
 property in lands, if left unqualified, proceeds to deny that 
 we must, as a result of a common property in lands, " re- 
 turn to the times of uninclosed wilds, and subsist on roots, 
 berries and game." In further explanation of this scheme 
 be says : ' ' Such a doctrine is consistent with the highest 
 state of civilization ; may be carried out without involving a 
 community of goods ; and need cause no very serious revo- 
 lution in existing arrangements. The change required 
 would simply be a change of landlords. Separate owner- 
 ships would merge into the joint stock ownership of the 
 public. Instead of being in the possession of individuals, 
 the country would be held by the great corporate body — 
 society. Instead of leasing his acres from an isolated propri- 
 etor, the farmer would lease them from the nation. Instead 
 of paying his rent to the agent of Sir John or his Grace, he 
 would pay it to an agent or deputy agent of the community. 
 Stewards would be public officials, instead of private ones; 
 and tenancy the only land tenure." ^ Tersely stated, Mr. 
 Spencer's idea is that all men must become tenants of the 
 State or of society, and must pay rent to the State for the 
 exclusive use of the land. Mr. George's proposition is es- 
 sentially the same. He says : " I do not propose either to 
 purchase or to confiscate private property in land. The first 
 would be unjust ; the second needless. Let the individuals 
 who now hold it still retain, if they want to, possession of 
 what they are pleased to call their land. Let them continue to 
 call it tlieir land. Let them buy and sell, and bequeath and 
 devise it. We may safely leave them the shell, if we take 
 the kernel. It is not necessary to confiscate land ; it is only 
 necessary to confiscate rent." ^ And in order that the State 
 need not " bother with the letting of lands," secure the ben- 
 efits arising out of the position of landlord without being 
 
 1 Social Statics, p. 141. 
 
 2 Progress and Poverty, p. 364. 
 
 § 115 
 
WHAT IS MEANT BY " PEIVATE PROPERTY IN LANDS? " 331 
 
 subjected to its annoyances, he proposes to " appropriate 
 rent by taxation . ' ' 
 
 Both writers recognize the absolute right of private prop- 
 erty in the improvements which the possessor may put upon 
 tlie land, and neither would claim the right of confiscation 
 of them, directly or indirectly, except that Mr. George rec- 
 ognizes the right to confiscate those '• improvements which 
 in time become indistinguishable from the land itself.'" 
 But as a general proposition, they both recognized this right 
 to the improvements, which are of course products of man's 
 labor. 
 
 Mr. Spencer claims that this proposed tenantry is 'in 
 strict conformity with his first principles. He says: "A 
 state of things so ordered would be in perfect harmony with 
 the moriil law. Under it all men would be equally landlords ; 
 all men would be alike free to become tenants. A., B., C, 
 and the rest, might compete for a vacant farm as now, and 
 one of them might take that farm, without in any way 
 violating the principles of pure equity. All would be 
 ■equally free to bid ; all would be equally free to refrain. 
 And when the farm had been let to A., B., or C, all parties 
 would have done that which they willed — the one in choos- 
 ing to pay a given sum to his fellowmen for the use of 
 certain lands — the other in refusing to pay that sum. 
 Clearly, therefore, on such a system, the earth might be in- 
 closed, occupied, and cultivated, in entire subordination to 
 the law of equal freedom." In effect, Mr. George's posi- 
 tion is identical. They both assert the natural right of one 
 man to the exclusive possession of a tract or plot of land, 
 for the period of his tenancy, provided he pays the proper 
 rent or equivalent to society. Who is to determine what 
 rent would be a fair equivalent for the right or privilege 
 thus secured? Clearly, the legal representative of society 
 
 ^ Progress and Poverty, p. 308. 
 
 § 115 
 
332 POLICE BEGULATION OF REAL PEOPBBTY. 
 
 in its organized condition, in other words, the government 
 of the State. 
 
 If tenancy be for one year, of course the rent will in 
 proportion be smaller than what would be payable in a ten- 
 ancy for ten, twenty, one hundred, and one thousand years; 
 and there would possibly be a different amount of rent ex- 
 acted for a tenancy for the life of the tenant. Of course, 
 legal limitations could be imposed upon the duration of the 
 tenancy,^ but would this be wise? May not cases arise, in 
 which it would be no inducement for a tenant to make im- 
 provements, unless he was given along lease? The desire 
 for a permanent "local habitation" is very strong in the 
 human breast, and Blackstone tells us that under the feudal 
 system it was considered "that the smallest interest,, 
 which was worthy of a freeman, was one which must endure 
 during his life.'"* Apart from any express legal restric- 
 tions, which of course may be imposed under this theory of 
 property in lands, if the consideration or rent is adequate, 
 there would be no more injustice to the rest of the human 
 race to give one man the exclusive possession of a piece of 
 land during his life, than it would be if his tenancy was only 
 for one year. Having paid to society a fair equivalent for 
 the use of the land, is society at all concerned in the man- 
 ner of his using the land, provided he injures no one else? 
 Would it be an act of natural injustice to society, if he for 
 some satisfactory consideration lets some one else utilize the 
 land, instead of doing so himself? The right of subletting 
 is therefore a natural incident of a tenancy, unless ex- 
 pressly taken away. 
 
 One step farther : suppose society finds out that in a 
 given case it can procure, through individual activity, a long 
 felt want, but the individuals in question will not undertake 
 the project unless they have in certain lands a more per- 
 
 ' See pos«, §116. 
 2 2 Bla. Com. 237. 
 
 § 115 
 
WHAT IS MEANT BY " PRIVATE PROPERTY IN LANDS? " 333 
 
 manent right of possession than what a tenancy for life 
 gives them. Suppose society conclude that they must have 
 this want supplied, and in order to gratify this desire they 
 ^ive to these parties and to their heirs and assigns the ex- 
 clusive possession of certain land, as long as they pay a 
 certain rent, the amount of which is to be determined by 
 society from time to time, and provided further, that the 
 land may be at any time reclaimed by society, if the public 
 exigencies shall require it, upon the payment to these par- 
 ties or their heirs and assigns of a compensation for the loss 
 •of improvements, which have become inseparable from the 
 land, and for future profits in the continued possession? 
 Would such a contract be in violation of Mr. Spencer's first 
 principle ? Would not the State be still the ultimate owner 
 of the land, and the so-called proprietor only vested with 
 the right of possession and enjoyment, in other words, a 
 qualified property? Would he not be essentially a tenant 
 of the State, and his interest in the land a tenancy? 
 
 That is all *' the private property in land " which the 
 American and English laws recognize. The present writer 
 has stated elsewhere ^ this limitation upon the right of prop- 
 erty in land in the following language : — 
 
 " It maybe stated as a general rule, though controverted 
 by eminent authority, that in any system of jurisprudence, 
 there cannot be an absolute ownership in lands. The right 
 of property or interest in them must always be qualified, 
 that interest being known in the English and American law 
 as a.n estate. A man can have only an estate in the land, 
 the absolute right of property being vested in the State. 
 An estate has, in respect to the real property, the three ele- 
 ments, the right of possession, right of enjoyment, and 
 right of disposition, subject to the right of the State to 
 defeat it, and appropriate it to the public use, or for the 
 public good. In what cases, and under what circumstances, 
 
 ' Tiedeman on Real Property, § 19. 
 
 § 115 
 
334 POLICE REGULATION OF EBAL PROPERTY. 
 
 the State can exercise this power of appropriation, and to 
 what extent the rights of possession, enjoyment and dis- 
 position, may be limited by the imposition of restrictions, 
 depends upon the policy of each system of jurisprudence. 
 In some States the restrictions are numerous, while in 
 others they are few, the right of property being almost 
 absolute in the individual. But nowhere can the private 
 right of property be said to be absolute. The absolute 
 right of property being in the State, the right of ownership, 
 which an individual may acquire, must, therefore, in theory 
 at least, be held to be derived from the State, and the State 
 has the right and power to stipulate the conditions and terms 
 upon which the land may be held by individuals. These 
 conditions and terms, and the rights and obligations arising 
 therefrom, constitute what is known as tenure or land ten- 
 ure."^ 
 
 Is not then this statement of the law correct ? Is there 
 an acre of land in this country, that is not held subject to 
 taxation and to the right of eminent domain? Taxation of 
 real estate is essentially the same as rent, for it is not im- 
 posed as an obligation of citizenship . Although the power of 
 taxation generally cannot properly be considered of feudal 
 origin, yet in its application to real property it assumes a 
 decidedly feudal character. If the power to tax real prop- 
 erty rested solely upon the obligations of citizenship, then 
 it could only be levied upon those proprietors of lands whO' 
 were citizens. As a matter of fact, all lands situated within 
 the jurisdiction of the government which levies the tax are 
 taxed for their proportionate share. The levying of a tax 
 upon land and the enforcement of the levy, are usually pro- 
 ceedings in rem against the land, and not in personam against 
 the proprietor.^ 
 
 The right of eminent domain surely can rest only upon 
 
 1 Tledeman on Real Property, § 19. 
 
 2 See;)0««, §129. 
 
 § 115 
 
REGULATION OF ESTATES —VESTED EIGHTS. 335 
 
 the claim that the State is the absolute proprietor of all 
 lands within its jurisdiction, which consequently makes all 
 private owners merely tenants of the State.^ 
 
 Our conclusion therefore is that there is no '• private 
 property in land " in the sense in which Mr. Spencer and 
 Mr. George employ the term, and the provisions of the 
 law in respect to the tenancy of lands are in strict conform- 
 ity with the principles they advocate. It may be, as Mr. 
 George asserts, that certain cunning men in days gone by 
 cheated society out of its dues, and obtained from it fee 
 simple tenancies without rendering an adequate equivalent; 
 and it may be true (we shall not question the proposition 
 in this place), that the present returns to the State for the 
 private enjoyment of these tenancies are grossly inadequate 
 to the benefits thus received : Mr. George may possibly be 
 just in his claim that taxation of lands ought to be increased 
 far beyond its present rate; but the economic problem 
 would be very much simplified, if it is clearly understood 
 that the scheme proposed for the nationalization of land in- 
 volves no legal, as it does an economic, revolution. 
 
 § 116. Kegulation of estates — Vested rights. — If it 
 
 be true that the absolute property in land is in the State, it 
 must follow as a logical consequence that, in the grant of 
 lands to private individuals, the State may impose whatever 
 conditions and terms, under which the land is to be acquired, 
 that may be deemed wise or necessary. For example, the 
 United States government maj' institute whatever regula- 
 tions it pleases for the sale of the public lands of the West. 
 The right to acquire a private property in land is a privilege 
 and not a right. The State may refuse altogether to sell, or 
 exact whatever returns in the way of rents or public duties 
 it pleases. But when the right to the public enjoyment of 
 lands is purchased by the individual, it becomes a vested 
 
 1 See post, § 121. 
 
 § 116 
 
336 POLICE REGULATION OF REAL PROPERTr. 
 
 right, of which he cannot be divested by any arbitrary rule 
 of law. There are several clauses of the constitutions 
 which contain an express or implied prohibition of such 
 interferences with vested rights ; but the principal protec- 
 tion to vested rights is that guaranteed by the clause which 
 declares that " no man shall be deprived of his * * * prop- 
 erty, except by the judgment of his peers or the law of the 
 land." It is not necessary in this place to discuss in general 
 what is meant by vested rights, and what are considered to 
 be such.^ It is sufficient for us to be able to say that when 
 one becomes the tenant of the State, or acquires the abso- 
 lute title to an estate in the land, whether that estate be in 
 fee, for life, for years, or otherwise, his interest is a vested 
 right, which is protected by the constitutional limitations 
 against any arbitrary changes by legislation. But natur- 
 ally, until the estate is acquired, the purchaser has no 
 absolute right to purchase any particular estate in the land. 
 It is fully competent for the legislature to determine what 
 estates one may acquire in lands. For example, estates 
 tail have been abolished in most of the American States. 
 That is, the statutes of the different States have declared 
 what shall be the effect of an attempt to create an estate tail. 
 In Alabama, California, Connecticut, Florida, Georgia, 
 Kentucky, Maryland, Michigan, Minnesota, Mississippi, 
 North Carolina, Tennessee, Texas, Wisconsin, Virginia 
 and West Virginia, estates tail are converted, into fees sim- 
 ple. In Arkansas, Illinois, Kansas, Missouri, New Jersey 
 and Vermont, the tenant in tail takes a life estate, and the 
 heirs of his body, the remainder in iee per formam doni. In 
 Indiana and New York, the tenant takes a fee simple, if there 
 is no limitation in remainder after the estate tail, and a 
 life estate, where there is such a limitation. In Delaware, 
 Maine, Massachusetts, Pennsylvania, and Ehode Island, es- 
 
 ^ For a masterly exposition of this subject, see Cooley Const. Llm. 
 430-511. 
 
 § 116 
 
REGULATION OF ESTATES VESTED RIGHTS. 337 
 
 tates tail are not expressly abolished, but an easy mode of 
 barring the entail by a conveyance in fee simple is provided 
 "by statute.^ 
 
 Another notorious example of legislative interference 
 •with creation of estates in lands is furnished by the enact- 
 ment of Statutes of Uses, which provide for the union ifti 
 the cestui que use of the legal and equitable estates.^ In the 
 same way are the incidents of estates being materially 
 modified and changed by statute. The law of -mortgages 
 is constantly undergoing a change in every State, through 
 the enactment of statutes and by judicial legislation. Joint 
 tenancies have been converted into tenancies in common ; 
 'estates at will have been changed to tenancies from year to 
 year, and estates for years declared to be estates of inherit- 
 ance, with all the incidents of freehold estates. There are 
 many other such instances of legislative changes of the char- 
 acter and incidents of estates in lands, which may be ascer- 
 tainedbya reference to any work on EealProperty. Allsuch 
 legislation, however radical it may be, will be clearly free 
 from all constitutional objections, as long as it is not made 
 to apply to existing estates. To declare, that hereafter no 
 -estate tail or use shall be created, does not infringe any 
 vested right, either of the vendor or vendee, or any third 
 person in privity with either of them. But the effect 
 would be very different if these statutes were. made appli- 
 cable to the existing estates of the prohibited kind. 
 Whether the estate tail was converted into a fee simple or 
 ■divided into a life estate in the first taker and a contingent 
 remainder in the heirs of his body, or if the tenant in tail 
 has the power given him to convert the estate into a fee 
 simple by a conveyance ; in any one of these three cases of 
 legislation, the application of it to existing estates tail would 
 violate the constitutional prohibition of interference with 
 
 1 Tiedeman on Eeal Prop., § 2, n. ; 1 Washb. on Real Prop. 112, note ; 
 WUliams on Real Prop. 35, Rawle's note, 
 a Tiedeman on Eeal Prop., §§ 459-470. 
 
 22 § 116 
 
338 POLICE REGULATION OF EEAL PEOPEKTY. 
 
 vested rights. Of course the heirs of the body have no vested 
 rights/ but the reversioner or remainder-man, after the 
 estate tail has.* Mr. Cooley states that " in this country- 
 estates tail have been very generally changed into estates 
 in fee simple, by statutes the validity of which is not dis- 
 puted." ' If the reversion or remainder after an estate tail 
 be a vested right, and without exception the recognized au- 
 thorities on the law of real property are agreed that these 
 interests are vested rights, the conclusion is irresistible, 
 that laws, changing estates tail into fees simple, are un- 
 constitutional if applied to estates tail already created, 
 when the laws were passed. Mr. Cooley says : " No other 
 person (than the tenant in tail) in these cases has any 
 vested right, either in possession or expectancy, to be 
 affected by such change ; and the expectation of the heir 
 presumptive must be subject to the same control as in other 
 cases."* In a note to the above statement ' he says that 
 " the exception to this statement, if any, must be the case 
 of a tenant in tail after possibility of issue extinct ; where 
 the estate of the tenant has ceased to be an inheritance, 
 and a reversionary right has become vested." There can- 
 not be any doubt whatever, that the conversion of an 
 estate tail after possibility of issue extinct into a fee sim- 
 jfle, would be in violation of the vested rights of the re- 
 versioner or remainder-man. For the estate tail after pos- 
 sdbility of issue extinct is but a life estate.* But, in respect 
 to the matter of being a vested right, there is no difference 
 between the remainder or reversion after an ordinary 
 
 1 See, post, § 117. 
 
 » Tiedeman on Real Prop., §§ 385, 398, 538; 2 Washb. on Real Prop. 
 737, 738; 2 Washb. on Real Prop. 646, 690. 
 
 ' Cooley Const. Lim. 441, citing, in support of the proposition, De 
 Mill V. Lockwood, 3 Blatcbf . 66. 
 
 * Cooley Const. Lim. 441, 442, citing, 1 Washb. on Real Prop. 81-84. 
 5 p. 442. 
 
 • Tiedeman on Real Prop., § 61; 1 Washb. on Real Prop. 110, 111; 2 
 Sharswood Blackstone, 126. 
 
 § 116 
 
REGULATION OP ESTATES VESTED EIGHTS. 339 
 
 estate tail, and one after an estate tail after possibility of 
 issue extinct. There is no uncertainty as to the title in 
 either case. The failure of issue in both simply deter- 
 mines when the reversion or remainder shall take ef- 
 fect in possession, and the uncertainty or impossibility 
 of ever enjoying the estate in possession, never makes a 
 remainder contingent.^ It is true that in England the re- 
 mainder after an estate tail was liable to be defeated by a 
 common recovery, when suffered or instituted by the tenant 
 in tail for the purpose of cutting off the entail.^ And if 
 common recoveries or some other mode of barring the 
 entail had been previously recognized in this country, the 
 remainder after the estate tail would be properly considered 
 a contingent interest instead of a vested right, and could be 
 further regulated by statute. Thus, for example, in Massa- 
 chusetts, the tenant in tail can make a conveyance in 
 fee simple, thus barring the contingent interest of the re- 
 mainder-man or reversioner. Another statute might very 
 well be enacted, making the existing estates tail a fee simple, 
 while they remain in the possession of the tenant in tail. 
 Since the interest of the reversioner or remainder-man was 
 already liable to be defeated by the arbitrary will of the 
 tenant in possession, it was not a vested right, and, there- 
 fore, not protected by the constitutional limitations. 
 
 For the same reason, the right of survivorship in a joint 
 tenancy cannot be considered a vested right. Apart from 
 the fact, that the title to the interest of the co-tenant under 
 the doctrine of survivorship, could not until his death become 
 
 1 Tiedeman on Real Prop., §401; X'earneCont. Rean. 216; 4 Kent Com. 
 202; 2 Washb. on Real Prop. 547; Croxall v. Shererd, 6 Wall. 288; 
 Pearce v. Gavage, 45 Me. 101 ; Brown c. Lawrence, 3 Cash. 390; William- 
 son V. Field, 2 Sandf. Ch. 633; Allen v. Mayfleld, 20 Ind. 293; Marshall 
 V. King, 24 Miss. 00 ; Manderson v. Lukens, 23 Pa. St. 31 ; Maurice v. 
 Maurice, 43 N. Y. 380 ; Furness v. Pox, 1 Cush. 134 ; Blanchard v. Blan- 
 chard, 1 Allen, 223. 
 
 ' Williams on Real Prop. 253 ; 1 Spence Eq. Jur. 144 ; 2 Prest. Est. 
 460; Page v. Hayward, 2 Salk. 570. 
 
 § 116 
 
340 POLICE REGDLATIOSr OF EEAL PROPEETY. 
 
 Tested in the survivor, the co-tenant had the power to 
 defeat the right of survivorship by his own conveyance of his 
 undivided interest. The conveyance of a joint tenant's 
 share in the joint tenancy converts it into a tenancy in com- 
 mon, as between the assignee and the other joint tenants.^ 
 It is, therefore, not difficult to justify on constitutional 
 grounds the statute of Massachusetts which converted exist- 
 ing joint-tenancy into tenancies in common.^ In the same 
 way the enactment of a statute, converting existing trusts, 
 which could not be executed by the English Statute of Uses, 
 into legal estates, could not be considered unconstitutional, 
 except where the effect would be to materially change the 
 beneficial character of the rights of the cestui que trust. 
 The title of the trustee is not a vested right which would be 
 protected by these constitutional limitations. He holds it 
 in trust for the cestui que trust, and if the latter has not 
 been harmed by the transfer of the land to him, the 
 ti-ustee can not complain. A law may be passed, abolish- 
 ing the doctrine of "a use upon a use," and convert into 
 legal estates all uses that remain unexecuted in consequence 
 of this doctrine. It may possibly be claimed that in active 
 trusts the trustee has a vested right to the compensation 
 which the law allows him for the performance of his duties 
 under the trust. But the claim is manifestly untenable. If 
 the performance of his duties is rendered unnecessary by 
 the transfer of the legal estate to the cestui que trust, he has 
 not earned his compensation. One cannot be said to have 
 a vested right to earn compensation by the performance of 
 duties which have by law become unnecessary. 
 
 1 Tiedeman on Eeal Prop., § 238 ; 1 Washb. on Real Property, 6i7, 648 
 Co. Lit. 2736. And the right of survivorship will pro tanto be defeated 
 b.y a mortgage of a joint tenant's interest in a joint tenancy. York v. 
 Stone, 1 Salk. 158; 1 Eq. Cas. Abr. 293; Simpson «. Ammons, 1 Blnn, 
 175. 
 
 2 Holbrook v. Finney, i Mass. 565 (3 Am. Dec. 243) ; Miller v. Miller, 
 16 Mass. 59; Annable v. Patch, 3 Pick. 360. See Bombaugh e. Bom- 
 baugh, 11 Serg. & E. 192. 
 
 § 116 
 
INTEEESTS IN EXPECTANCY. 341 
 
 Under the English Statute of Uses, which has been 
 adopted without change in most of our States, the separate 
 use to a married woman cannot be executed into a legal 
 estate, because she cannot hold the legal estate free 
 from the control of the husband, as she can the use 
 or equitable estate. ^ A statute, which converted such 
 an existing estate into a legal estate, without providing for 
 its remaining her separate property, would clearly be un- 
 constitutional, as being in violation of vested rights. On 
 the other hand, if a statute is passed, which declares that 
 married women shall hold their legal estates as well 
 as equitable estates free from the control or attach- 
 ing rights of the husband, the use to a married woman 
 which remained unexecuted by the statute, only on 
 account of her disability to nold the legal estate inde- 
 pendently of her husband, would at once become executed 
 into a legal estate under the old Statute of Uses, with- 
 out any express legislation to that effect.^ 
 
 § 117. Interests in expectancy. — Interests in expect- 
 ancy, when distinguished from vested rights, are held not 
 to be under the protection of the constitution, and may, 
 therefore, be modified, changed, or completely abolished by 
 subsequent legislation.' A purely contingent interest, to 
 which there cannot be any present fixed title, cannot be 
 considered a vested right. Where the vesting of a right 
 depends under existing laws upon the future concurrence 
 of certain circumstances or facts, the repeal of those laws 
 will operate to defeat the expectant interest. " A person 
 has no property, no vested interest, in any rule of the com- 
 mon law. * * * Eights of property, which have been 
 created by the common law, cannot be taken away without 
 
 » Tiedeman on Real Prop.,§ 469. 
 
 * See Sutton v. Aiken, 62 Ga. 733; Bratton v. Massey, 15 S. C. 277; 
 Bayer v. Cockerill, 2 Kan. 292. 
 ^ Cooley Const. Lim. 440. 
 
 § 117 
 
342 POLICE REGULATION OF REAL PROPERTY. 
 
 due process ; but the law itself, as a rule of conduct, may 
 be changed at the will, or even at the whim of the legisla- 
 ture, unless prevented by constitutional limitations." ^ 
 
 For the reason that an interest in expectancy is not to be 
 considered a vested right, it is the universally recognized 
 rule of constitutional law that the right of inheritance of 
 the heir presumptive is liable to be modified or entirely de- 
 feated by a legislative change in the law of descent. The 
 law of descent varies according to the civil polity of each 
 State, or, as Blackstone has it, it is " the creature of civil 
 polity and Juris positivi." Independently of positive law, 
 the heir acquires no rights whatever in his ancestor's prop- 
 erty. For public reasons, and with an incidental recogni- 
 tion of the moral right to the inheritance of those who stand 
 in the most intimate blood relationship with the deceased 
 owner, the law declares that property, which the owner 
 leaves at his death undisposed of by grant or demise, shall 
 descend to those named by the statute and in the order 
 given. The expectant heir's right of inheritance rests 
 altogether upon this command of positive law. A repeal 
 of the law before the death of the ancestor would take away 
 all authority for his claim of inheritance. It is, therefore, a 
 well recognized and undisputed rule of law that the statute 
 of descent, in force when the ancestor dies, determines the 
 right of inheritance : nemo est hoeres viventis.^ But when the 
 ancestor dies, and under the then existing statute of de- 
 scent, the property is cast upon a particular individual as 
 heir, the right of property becomes a vested right, and like 
 
 1 Walte, Ch. J., in Munn v. Illinois, 94 XJ. S. 113, 134. 
 
 2 Cooley Const. Llm. 441; Story on Confl. Laws, § 484; Tiedeman on 
 Eeal Prop. § 664 ; Potter v. Titcomb, 22 Me. 300; Miller v. Miller, 10 Met. 
 393; In re Lawrence, 1 Eedfleld Sur. Rep. 310; Smith v. Kelly, 23 Miss. 
 167; Marshall v. King, 24Misa. 86; McGaughey v. Henry, 15 B. Mon. 383; 
 Jones u. Marable, 6 Humph. 116; Price «. Talley, 10 Ala. 946; Eslava o. 
 Farmer, 7 Ala. 643; Sturgisv. Ewing, 18 111. 176; Emmert ». Hays, 89 
 111.11. Cooley Const. Lim. 441. 
 
 § 117 
 
INTERESTS IN EXPECTANCY. 343 
 
 all other vested rights, however acquired, it cannot be 
 affected by subsequent legislation. 
 
 Of the same character are the rights which the husband 
 and wife acquire in the real and other property of each 
 other, by virtue of the marital relation existing between 
 them. By rule of positive law, for more or less public 
 reasons, these rights are granted. They do not depend 
 upon contract, and do not emanate from the marriage con- 
 tract. The acquisition of these rights is merely an incident 
 of the marriage, made so by law.^ If, therefore, the 
 law upon which the claim to these marital rights of prop- 
 erty rests, is repealed before the rights become vested, 
 the expectant right would be defeated, because there would 
 be no foundation for the claim of an existing right. "The 
 common law provided that the husband on his marriage 
 would acquire an estate during coverture in all of the lands 
 of the wife which she then owned, and, from the time of 
 purchase, in all other lands which she may subsequently 
 acquire.^ Until she acquires a title to the lands by pur- 
 chase or otherwise, the right to an estate in the lands is 
 merely expectant. A law which provides that married 
 women shall hold their lands and other property free from 
 the attaching rights of the husband, would not be uncon- 
 stitutional if made to apply to those already married, pro- 
 vided it waa not allowed to affect the husband's vested 
 rights in the property, acquired by the wife before the pas- 
 
 1 " Dower is not the result of contract but a positive institution of the 
 State, founded on reasons of public policy. To entitle to dower, It Is 
 true, there must be a marriage, which our law regards in some respects 
 as a civil contract. So the death and seisin of lands by the husband dur- 
 ing the coverture are also necessary to establish a right to this estate. 
 But they are not embraced by, nor are they the subjects of the marriage 
 •contract. The estate is by law made an incident of the marriage relation 
 and the death and seisin of one of the parties are conditions on which it 
 comes into existence. It stands, like an estate by the curtesy, on the 
 foundations of positive law." Moore v. City of New York, 8 N. Y. 110. 
 
 2 Tiedeman on Real Prop., § 90; 1 Bla. Com. 442; 1 Washb. on Eeal 
 Prop. 328, 329. 
 
 § 117 
 
344 POLICE REGULATION OF REAL PROPERTY. 
 
 sage of the remedial statute. The statute can constitu- 
 tionally cut off the husband's expectant interests in the- 
 property of the wife, acquired by her subsequently.' 
 The same principles will apply to tenancies by the curtesy^ 
 and to dower. Until the birth of a child, who was capable- 
 of inheriting the estate, the husband's curtesy was merely 
 an expectant interest. Upon the birth of the child, the- 
 tenancy became initiate. The title vests in him absolutely. 
 His right of possession as tenant by the curtesy is post- 
 poned until the wife's death, but the estate is so far a 
 vested right upon the birth of issue, that he may convey it 
 away, and it is subject to sale under execution for his debts.* 
 Any law which provided for the abolition of tenancy by the 
 curtesy, could not constitutionally be made to apply to those- 
 cases, in which the tenancy by the curtesy has become a 
 vested right by the birth of issue, and a concurrence of 
 all the other conditions, which are necessary to the exist- 
 ence of the tenancy. For in such cases the tenancies by 
 the curtesy have become vested rights.' But the law 
 
 Westervelt v. Gregg, 12 N. Y. 202; Norris v. Beyea, 13 N. T. 273? 
 Pugh V. Ottenheimer, 6 Ore. 231 (25 Am. Rep. 513) ; Bishop Law of 
 Married Women, §§ i5, 46. In Massachusetts it has been held that the 
 husband's contingent Interest as husband, in the right of property to- 
 ■which the wife is entitled subject to a contingency, is so far a vested 
 right that it cannot be affected by remedial legislation. Dunn v. Sar- 
 gent, 101 Mass. 336. See Plumb v. Sawyer, 21 Conn. 'SSl; Jackson ». ' 
 Lyon, 9 Cow. 664; Pritchard v. Citizen's Bank, 8 La., 130 (23 Am. Dec. 
 132.) 
 
 2 Tiedeman on Real Prop., §§ 108, 109; Mattocks v. Stearns, 9 Vt. 
 326; Roberts ». Whiting, 16 Mass. 186; Litchfield i7. Cudworth, 15 Pick. 
 28; Watson v. Watson, 13 Conn. 88; Burd v. Dansdale, 2 Binn. 80; Lan- 
 caster Co. Bk. V. Stauffer, 10 Pa. St. 398; Van Duzer v. Van Duzer, & 
 Paige 366; Day v. Cochrane, 24 Miss. 261; Canby ». Porter, 12 Ohio, 79. 
 Equity will not interfere in behalf of the wife or children. Van Duzer 
 V. Van Duzer, 6 Paige, 366. 
 
 3 Hathon u. Lyon, 2 Mich. 93; Long v. Marvin, 15 Mich. 60. In 
 Illinois, the husband's curtesy is by statute given the character of the 
 wife's dower. It, is therefore, in that State, subject to change by statute, 
 until the death of the wife makes it a vested right. Hensou v. Moore, 
 104 111. 403. 
 
 § 117 
 
INTERESTS IN EXPECTANCY. 345 
 
 could apply to all the property of those already named, 
 who have had no children, capable of inherithigthe estate. 
 And while the birth of issue and its death before the ac- 
 quisition of the property by the wife will be a sufficient per- 
 formance of this condition, to enable the husband's tenancy 
 by the curtesy to attach, as soon as the property is acquired 
 by the wife ;^ yet until the property is acquired, the right 
 to the tenancy by the curtesy in such property is so far an 
 interest in expectancy, that it may betaken away by statute. 
 On the other hand, the wife's dower is inchoate until the 
 death of her husband. Neither he nor his creditors can 
 by any act deprive her of her dower during coverture ; ^ 
 and it is so far a mere expectant interest, that she can 
 neither assign, release, nor extinguish it, except by joining 
 in the deed of her husband. It cannot during coverture be 
 considered even a chose in action; and it is not affected by 
 any adverse possession, although such possession is sufficient 
 to bar the husband's interest in the land.* Although the 
 authorities are not altogether unanimous, the overwhelming 
 weight of authority recognizes the dower during coverture 
 as being so far inchoate and an interest in expectancy, that 
 it may be changed, modified, or altogether abolished by stat- 
 ute.* There is no unconstitutional interference with vested 
 
 ' Tiedeman on Real Prop., § 108; Williamson Real Prop., 228, Eawle's 
 note; Dubs v. Dubs, 31 Fa. St. 164; Lancaster Co. Bk. «. StaufCer, 19 
 Pa. St. 398. 
 
 2 Tiedeman on Real Prop., §§ 115, note, 126. 
 
 ' Tiedeman on Real Prop., § 116; Durham v. Angier, 20 Me. 242; Moore 
 ». Prost, 3 N. H. 127; Gunnison ». Twitchell, 38 N. H. 68; Learned o. 
 Cutler, 18 Pick. 8 ; Moore v. New York, 8N. Y. 110; McArthurc. Franklin, 
 16 Ohio St. 200. But see Somar v. Canaday, 68 N. Y. 298 (13 Am. Rep. 
 623) ; White «. Graves, 107 Mass. 325 (9 Am. Rep. 38) ; Buzick v. Buzick, 
 44 Iowa, 259 (24 Am. Rep. 740), in which the inchoate dower is considered 
 as a vested interest, so far as to enable a wile for its protection to secure 
 in equity a cancellation of a deed, containing her renunciation of dower, 
 which had been procured by the fraud of the purchaser. 
 
 * Barbour v. Barbour, 46 Me. 9; Merrill v. Sherburne, 1 N. H. 199 {8- 
 Am. Dec. 52). See Ratch v. Flanders, 29 N. H. 304; Jackson i>. Ed- 
 wards, 7 Paige, 391 ; s.e. 22 Wend. 498; Moore b. City of New York, 4 
 
 § 117 
 
346 POLICE EEGUIiATION OF REAL PROPERTY. 
 
 rights, as far as the dower right is concerned, whether it is 
 by statute increased, diminished, or completely abolished. 
 But where the dower estate is enlarged in the lands already 
 possessed by the husband, there is a clear violation of his 
 vested rights, because the incumbrance upon his estate has 
 been increased. It would be the same, in respect to the 
 wife's property, if the husband's tenancy by curtesy or 
 other marital rights in her property were enlarged by 
 statute, after the property had been acquired. It is 
 unquestionably the prevailing rule of construction, that the 
 widow's dower right in the lands, which her husband has 
 conveyed away during his lifetime, is governed by the law in 
 force at the time of alienation. But since the dower right in 
 all cases is inchoate during the coverture, even in the lands 
 which have been aliened by the husband, it is in this case 
 as much subject to legislative change, as long as it is not 
 enlarged, as if the property was still in the possession of 
 the husband, and while the presumption of law may be 
 against the application of a statute, regulating dower, to 
 estates which have already been conveyed away, there is no 
 constitutional objection in the way of. its application to 
 
 Sandf. S. C. 456; s. c. 8 N. Y. 110; Melizet's Appeal, 17 Pa. St. 449; 
 Phillips V. Disney, 16 Ohio 639; Weaver v. Gregg, 6 Ohio St. 54T; Noel v. 
 Ewing, 9 Ind. 37; Logan v. Walton, 12 Ind. 639; May v. Fletcher, 40 Ind. 
 575; Carr v. Brady, 64 Ind. 28; Pratt B. Tefft, 14 Mich. 191; Guerin «. 
 Moore, 25 Minn. 462; Bennett v. Harms, 51 Wis. 25; Henson v. 
 Moore, 104 III. 403, 408, 409; Lucas v. Sawyer, 17 Iowa, 517; Sturdevant 
 V. Norris, 30 Iowa, 65; Cunningham ». Welde, 56 Iowa, 369; Ware v. 
 Owens, 42 Ala. 212; Walker v. Deaver, 6 Mo. App. 139; Magee v. Young, 
 40 Miss. 164; Bates v. McDowell, 68 Miss. 815. Contra, Eoyston v. Boys- 
 ton, 21 Ga. 161; Moreau v. Detchmendy, 18 Mo. 622; Williams v. Court- 
 ney, 77 Mo. 687; Russell «. Eumsey, 35 111. 362; Steele «. Gellatly, 41 III. 
 39. See Dunn v. Sargent, 101 Mass. 336, 340. In Indiana, it has been 
 held that dower may be increased, as well as diminished, in the lands 
 owned by the husband at the time when the statute was enacted. Noel v. 
 Ewing, 9 Ind. 37. A contrary conclusion has been reached in North Caro- 
 lina. Sutton V. Asken, 66 N. C. 172 (8 Am. Rep. 500) ; Hunting v. John- 
 son, 66 N. C. 189; Jenkins v. Jenkins, 82 N. C. 202; O'Kelly v. Williams; 
 74 N. C. 281. 
 
 § 117 
 
INTERESTS IN EXPECTANCY. 347 
 
 such cases, if the intention of the legislature is clearly- 
 manifested. It is true, as Mr. Cooley states:^ that if the 
 <iower is diminished, the purchaser will get a more valuable 
 «state for which he had not paid an equivalent consideration. 
 But if it is the wish of the legislature that this shall be 
 done, no provision of the constitution has been violated, 
 for there has been no infringement of vested rights. This 
 proposition was carried to such a logical extreme in Indi- 
 ana, that, in declaring a statute, abolishing the common- 
 law dower, and giving the wife an estate in fee in one-third of 
 ier husband's land in lieu of dower, to apply to the lands 
 granted by the husband to purchasers for value, it was held 
 that her common-law dower in such lands was abolished by 
 the statute; while she could not claim the enlarged dower 
 in such lands, because the statute would then interfere with 
 the vested rights of the purchaser. Thus, she was deprived 
 of both the statutory dower, and the dower at common-law.^ 
 It may be doubted whether, in such a case, the legisla- 
 "true intended that the statute should operate in that 
 manner; but if the intention to have the statute apply to 
 such cases is established, judged by the principles of 
 constitutional construction previously deduced, there can be 
 no doubt that the statute can be made to apply to such cases, 
 ■even when its application will have the effect of depriving 
 the widow of her dower, at common law, without 
 succeeding in vesting in her the greater estate, in- 
 tended by the statute to take the place of the dower at 
 common law. But a statute, which simply provided for 
 the enlargement of the dower at common law into an estate 
 in fee could not be construed, when applied to estates that 
 
 1 Cooley Const. Lim. 442, n. 4. 
 
 » Strong?). Clem, 12 Ind. 37; Logans. Walton, 12 Ind. 639; Bowen v. 
 Treston, 48 Ind. 367; Taylor v. Sample, 61 Ind. 423. See Davis v. O'Far- 
 rall, 4 Greene, 168 ; O'Ferrall v. Simplot, 4 Iowa, 381 ; Moore v. Kent, 37 
 Iowa, 20 ; Craven v. Winter, 38 Iowa, 471 ; Kennedy v. Insurance Co., 11 
 Mo. 204. 
 
 § 117 
 
348 POLICE EEGULATION OF EBAL PROPERTY. 
 
 have been granted away, so as to deprive the wife of her 
 common-law dower; for the dower at common-law would 
 be abolished inferentially from the enlargement of the estate 
 by the operation of the statute ; and since the statute cannot 
 apply to such cases, because it would infringe upon the 
 vested rights of the purchaser, the wife's dower in the 
 lands of the husband's purchaser would remain unchanged 
 at common law. It is probable that the Indiana court was 
 in error in not placing this construction upon the statute 
 in question. 
 
 But every future interest in property is not an interest in 
 expectancy. A vested estate of future enjoyment is as- 
 much a vested right as an estate in possession.^ Vested re- 
 mainders and reversions are, therefore, vested rights, and 
 cannot be changed or abolished by statute. We have already 
 discussed the character of a remainder or reversion after 
 an estate tail, and have concluded that they are vested rights 
 not subject to legislative change or modification .'■* If th& 
 remainder or reversionary interest were contingent, the con- 
 clusion would possibly be different. 
 
 But is a contingent remainder, a contingent use or a 
 conditional limitation,' so far an interest in expectancy, 
 that it may be defeated by subsequent legislation? In 
 those cases in which the interest is contingent, because 
 the person who is to take the contingent estate is not yet * 
 born, it may be reasonable enough to claim that the 
 interest is not a vested right. Until one is born, or at 
 least conceived, he cannot be considered as the subject 
 of rights under the law. He certainly cannot have a vested 
 right in or to anything. A statute might very properly 
 destroy such a contingent interest. This class of cases may 
 
 J Cooley Const. Lim. 440. See ante, § 116. 
 
 ' See ante, § 116. 
 
 8 The term " conditional limitation " Is here employed as a general 
 term, including shifting uses and executory devises. See Tiedeman on 
 Eeal Prop., §§ 281, 398, 418, 536, 537. 
 
 § 117 
 
INTERESTS IN EXPECTANCY. 349 
 
 possibly include also those, in which the contingency arises 
 from an uncertainty as to which of two or more living per- 
 sons shall be entitled to take, as where the limitation is to 
 the heirs of a living person. No man's heirs can be ascer- 
 tained until his death, although one may be the presump- 
 tive or apparent heir of another. The heir presumptive or 
 apparent cannot be said to have a vested right to such an 
 estate, in the sense in which the term "vested right" is 
 employed in the law of real property ; but the same may be 
 said of any contingent interest, whether it be a remainder, 
 a use, or a conditional limitation. The person , who is to take 
 the estate upon the happening of the contingency, can in 
 none of these cases claim to have a vested estate in the 
 land ; but may not the expectant owner of the contingent 
 interest claim to have a vested, indefeasible right to the 
 estate, whenever the contingency happens ? Even in the law 
 of real property, where the term " vested estate " is used 
 in an extremely technical sense, the contingent remainder- 
 man, as well as the expectant owner of a shifting use or 
 executory devise, is deemed to be so far possessed of vested 
 rights in the estate as to be able, at least in equity, to make 
 a valid assignment of the interest.^ It would seem, there- 
 fore, that the interest in such cases would be so far a vested 
 right that it would be beyond the reach of legislative inter- 
 ference. Another reason may be assigned why a statute 
 <;ould not operate to destroy such contingent interests, viz. : 
 that, being created by act of the owner of the property, in- 
 stead of arising by operation of law, its subsequent taking 
 effect in possession does not depend upon the continuance 
 of the present laws. A change in the law can only operate 
 to defeat the contingent estate, by imposing upon the owner 
 a prohibition against doing with the estate, what he could 
 do without the aid of law. In all the common examples 
 of interests in expectancy, which have been changed or abol- 
 
 1 Tiedeman on Real Prop., §§ 411, 530. 
 
 § 117 
 
350 POLICE KEGDLATION OF REAL PROPERTY. 
 
 ished by statute, the interest is the creature of positive law, 
 and does not vest upon any act of disposition of the owner 
 of the land. Its taking effect in possession must conse- 
 quently depend upon the continued existence of the law, 
 which authorizes and creates it. The repeal of the law, 
 before it vests, does not operate retrospectively, in defeat- 
 ing the inchoate estate. But a law would most certainly 
 operate retrospectively, making that unlawful or impossible 
 which was possible and lawful when it was done, which 
 changes or destroys the interest of a contingent remainder- 
 man, or executory devisee. Being retrospective, it will be 
 void if it infringes any vested right, even though it does not 
 amount to a " vested estate," as the term is understood in 
 the law of real property. 
 
 Another interesting question is, how far powers of ap- 
 pointment may be changed or abolished by statute. A law 
 would act retrospectively, if it were made to avoid the deed 
 or grant of a power of appointment, and, if it interfered 
 with vested rights, would be unconstitutional. A special 
 power of appointment, to appoint the estate to certain persons 
 under certain conditions and in accordance with directions 
 given, would give to these beneficiaries a vested right to the 
 exercise of their power in their favor, within the restrictions 
 and limitations imposed by the donor, and the donee of the 
 power can not suspend or extinguish the power by a release. 
 It would be reasonable to claim that no statute could be so 
 framed as to change or destroy such a power, because it would 
 interfere with vested rights. But where the power was gen- 
 eral, the donee having the power to appoint to whom he 
 pleases, there is certainly no vested right to the exercise of the 
 power in the person or persons to whom he might ultimately 
 appoint the estate. But he would have an absolute right to 
 the exercise of the power, either for himself or in trust for 
 others; and this vested right would be violated by a statute, 
 
 ' Tiedeman on Real Prop. § 561. 
 § 117 
 
LIMITATION OP THE EIGHT OF ACQUISITION. 351 
 
 which either took away the power, or imposed upon its exer- 
 cise limitations that did not exist at the time when the power 
 was created, and which have the effect of materially reducing 
 the value of the power. Such a statute would consequently 
 be unconstitutional and void. 
 
 § 118. Liimitation of the right of acquisition. — One 
 
 of the incidental rights of private property in lands is the 
 right to acquire land. Land being the free gift of nature, 
 the regulation of it by the government must be directed in 
 the interest of all, and as every one is guaranteed by the 
 constitution the equal protection of the law, and inequality 
 or partiality in the bestowal of privileges is prohibited, 
 every one may be said to have an indefeasible right to 
 acquire land, by complying with the general laws, which 
 have been enacted for regulating its disposition. As 
 long as there is a public domain, every one has a right to 
 buy of the government, if he pays the price asked for the land. 
 But where all the public lands have been taken up, the 
 only way left open for the subsequent acquisition of land is 
 by purchase from other private owners. If no one is will- 
 ing to sell, one's right to acquire lands has in no way been 
 violated. But if a seller can be found, any law which 
 would interfere with the purchase, that is, prohibit a par- 
 ticular person or class of persons from acquiring any prop- 
 erty in land whatever, would be an unconstitutional 
 violation of a right which belongs to every citizen. Thus an 
 ordinance was held to be unconstitutional by the Supreme 
 Court of Texas, which absolutely prohibited any prostitute 
 or lewd woman from residing in, or inhabiting any room, 
 house, or place in the city, and forbade the leasing of any 
 s,uch premises to such a person.^ Even a chronic breaker 
 of the laws has a right to possess a lodging-house. He has 
 no right to purchase or lease a house for the purpose of 
 
 > Milliken t.CityCouncU, 64 Texas 388 (38 Am.Eep. 629). 
 
 § 118 
 
352 POLICE REGULATION OF EEAL PEOPEETY. 
 
 prosecuting his criminal or nefarious trade, and even though 
 it is a moral certainty that the criminal will use the house or 
 room he occupies for immoral or criminal purposes, he can 
 not be deprived of the use of said room or house as a lodg- 
 ing-house. The citizen has a constitutional right to acquire 
 a local habitation, and no law can impose an absolute pro- 
 hibition. 
 
 It is true that if the Christian principle of the universal 
 brotherhood of man were recognized as a principle of con- 
 stitutional and international law, and nations merely con- 
 sidered as convenient and subordinate subdivisions of this 
 world-wide brotherhood, we would accord to the alien, as 
 well as to the citizen, the equal right to acquire a homestead 
 within our borders. But this principle of Christianity has 
 never been adopted into our law or into the law of any 
 nation, civilized or uncivilized. On the contrary, inter- 
 national law is constructed on the idea of nationality as a 
 cornerstone. The nations of the world are recognized by 
 international law as distinct and independent political enti- 
 ties, having exclusive control over the country and people 
 within their borders, and owing nothing to the people living 
 outside of their jurisdictions. Although an alien born is 
 entitled to the equal protection of the laws, instituted for 
 the benefit of the citizen, while he is sojourning in the 
 country, he has no absolute right to come into our country 
 or to remain there. Unlike the citizen, he can at any mo- 
 ment be compelled to leave,^ with or without cause, unless 
 he has acquired a right of ingress under a treaty with his 
 own government. The alien, therefore, cannot be consid- 
 ered as having any absolute right to purchase or acquire 
 lands. 
 
 It has long been the policy of England and of the States 
 of this country to deny to the alien the right to hold lands 
 within their borders. In many of the Western States, 
 
 ' See ante, § 60. 
 § 118 
 
LIMITATION OF THE EIGHT OF ACQUISITION. 353 
 
 statutes have been passed granting to the alien the unlim- 
 ited right to purchase and hold lands, and many millions of 
 acres are now the property of foreign capitalists, who have 
 never lived in this country and never expect to. 
 
 But while an absolute prohibition against the acquisition 
 ■of lands by a particular person or class of persons would 
 be unconstitutional, it would not be impossible to impose 
 limitations upon the quantity of land which any one person 
 may own. The agrarian evil, known under the name of 
 "landlordism," resulting from the concentration of lands 
 into the hands of a relative few, and the formation of large 
 farms, is one that will threaten every community at some 
 stage of its political existence. It may be considered by 
 some, with some show of reason, to be questionable, whether 
 the situation would be improved by a statute, which prohibi- 
 ted any one person from holding more than a given quantity 
 of land ; but no serious constitutional objection can be raised 
 to such legislation. It would certainly be a constitutional 
 exercise of police power, as long as it was not made to 
 operate against vested rights, by making void the purchase 
 of lands that have already been completed.^ In New- 
 York there is a constitutional prohibition of agricultural 
 leases for a longer period than twelve years.^ Applied to 
 future purchasers, even providing for the confiscation with- 
 out compensation of the lands acquired in excess of the 
 quantity allowed by law, the law would most unquestiona- 
 bly be constitutional. 
 
 When it is said that the citizen has a natural right to 
 acquire a certain quantity of land for lawful purposes, 
 domestic corporations are not included under that term. 
 It is probably true that corporations already created with 
 the power to purchase lands, whose charters are not subject 
 to repeal by the legislature, have as indefeasible a right to 
 
 1 As to the right of expropriation, see post, § 1216. 
 « Clark V. Barnes, 70 N. Y. 301 (32 Am. Kep. 306). 
 
 23 § 118 
 
354 POLICE REGULATION OF REAL PROPERTY. 
 
 purchase lands as the natural person; but statutes of 
 mortmain may, subject to this exception, be passed pro- 
 hibiting absolutely the acquisition of lands by corporations. 
 The rights and powers of a corporation depend altogether 
 upon the will of the legislature. 
 
 § 119. Regulation of the right of alienation. — It can 
 
 hardly be questioned that the government, in making sale 
 of public lands, may provide that the interest which is thus- 
 granted shall not be assigned. For land being the abso- 
 lute property of the State, any condition may be imposed 
 in the original grant of it, that the welfare of the commu- 
 nity may seem to require. If effective measures for the 
 prevention of the concentration of lands in the hands of a. 
 few are considered essential to the prosperity of the State, 
 the government may lawfully impose an absolute prohibi- 
 tion against alienation, for the purpose of attaining that 
 end. 
 
 But in no State is there any law depriving the owner of 
 lands of the right of alienation ( except that in some of the 
 States, statutes have been enacted which declare estates for 
 years of short duration, and tenancies from year to year^ 
 to be inalienable without the consent of the landlord) ; nor 
 did the common-law at any time prohibit alienation alto- 
 gether. Under the feudal system, absolute alienation, of 
 a kind which would shift to the shoulders of the alienee 
 the burden of performing the duties which the feudal tenure 
 imposed upon the tenant, was prohibited, but it was always 
 possible to sublet the land to another, while the original 
 tenant remained liable to the lord for the rendition of the 
 services due to him.^ On the contrary, the history of the 
 law of real property reveals a constant struggle on the 
 part of the common classes, to remove all restrictions upon 
 the alienation of lands. The statute quia emptores,^ declared 
 
 • Tiedeman on Real Prop., §§ 21, 23. 
 2 18 Edw. I. 
 § 119 
 
REGULATION OF THE RIGHT OP ALIENATION. 355 
 
 void all conditions which absolutely prohibited the aliena- 
 tion of estates in fee, permitting grantors to impose limita- 
 tions upon the power of alienation in the grant of 
 any estate less than a fee. So, also, when the courts, by 
 judicial legislation, developed the law of uses and executory 
 devises, the rule against perpetuity was adopted, which 
 prohibited the suspension of alienation by the creation of 
 contingent estates, beyond a life or lives in being, and 
 twenty-one years thereafter.^ The same limitation rests 
 in effect upon the creation of contingent remainders.^ A 
 constant change of ownership has always been considered 
 salutary to the public welfare. 
 
 Inasmuch, therefore, as the private property in land, 
 already acquired, has been procured subject to no condition 
 against alienation, the right of alienation is as much a vested 
 right as the right of possession or the right of enjoyment ; 
 and a law, which materially diminishes this right of alien- 
 ation, without having for its object the prevention of 
 injuries to others, or which takes away the right altogether, 
 is an unconstitutional interference with vested rights. 
 That the right of free alienation is a vested right, which 
 cannot be modified or taken away by subsequent legislation, 
 while the land remains in the possession of the present 
 landholders, cannot be questioned ; and it is equally cer- 
 tain that the government may, in its future grant of the- 
 public lands to private individuals, absolutely prohibit 
 the alienation of these lands without the consent of the 
 State : but it is exceedingly doubtful, whether it is consti- 
 tutional or unconstitutional to apply the statutory prohibi- 
 tion to lands, already the property of private persons, after 
 they have been sold to others, subject to the statutory re- 
 striction upon alienation. There is certainly no interfer- 
 ence with any vested right of the subsequent purchaser, 
 
 1 Tiedeman on Eeal Prop., § 644; 2 Washb. on Real Prop. 580. 
 
 2 Tiedeman on Eeal Prop., § 417; 2 Washb. on Eeal Prop. 701, 702. 
 
 § 119 
 
356 POLICE REGULATION OF REAL PROPERTY. 
 
 but there may be some ground for the claim that the oper- 
 ation of the statute would diminish materially the chances 
 of sale, and consequently would infringe upon the vested 
 right of alienation of the present owners, in a manner not 
 permitted under constitutional limitations. But this posi- 
 tion does not seem to be tenable. While the vested right 
 of alienation cannot by subsequent legislation be taken 
 away altogether, an indirect restriction upon the right, re- 
 sulting from the denial of the right of alienation to subse- 
 quent purchasers and the consequent diminution of sales, 
 would not be properly considered a deprivation of a vested 
 right. It is no more so than the effect of a statute, which 
 prohibited the purchase by one person of more than a 
 specified quantity of land. In both cases, the exercise of 
 police power is reasonable, and the indirect burden imposed 
 upon present owners is but what may be expected from 
 the exercise of the ordinary police power of the State. 
 
 While the vested right of alienation cannot be taken away 
 altogether, its exercise may be subjected to reasonable 
 regulations, which are designed to prevent the practice of 
 fraud, and to facilitate the investigation of titles. The 
 statutory regulation of conveyancing is in some of the States 
 very extensive, providing for almost every contingency, 
 while in others the legislation has been limited. But in 
 all the States it will be found to be necessary, in ordei* 
 to effect a valid transfer, to comply with certain statu- 
 tory requisitions. It is not necessary to speak of them in 
 detail. They all have the same general object in view, and 
 their constitutionality has never been and cannot be ques- 
 tioned. These requirements do not deprive the land owner 
 of his right of alienation. They only regulate his exercise 
 of the right, with reasonable objects in view. But is hardly 
 necessary to state that such statutory regulations can only 
 have a lawful application to future conveyances. Laws for 
 § 119 
 
INVOLUNTAET ALIENATION. 357 
 
 the conveyance of estates are unconstitutional as far as they 
 affect conveyances already made.^ 
 
 But the vested right of alienation which the land owner 
 acquires as a natural incident of his property rests upon the 
 natural power, in the absence of lawful restrictions, to give 
 away or sell what belongs to him. The natural right can 
 only exist as long as his natural dominion over the property 
 lasts, viz. : during his life. His natural dominion over his 
 property terminates with his death. He may sell or give 
 away, as he pleases, as long as he does not violate the rights 
 of creditors, up to the last moment of his life, and his right 
 of alienation inter vivos cannot be taken away by statute ; 
 but after death he ceases to exercise a natural dominion 
 over his property, and if he has any power of disposition after 
 death, it must rest upon positive law, and must change or 
 disappear with the modification or repeal of the law. It is 
 therefore held that no one has a vested right to dispose of 
 lands by will, in accordance with the laws in force when he 
 acquired them. His right to devise depends upon the laws 
 in existence at his death. The new statute may be made to 
 apply to future purchasers of lands, and not to present 
 owners, but it will apply to the latter, if they are not 
 expressly excluded from the operation of the statute.^ 
 
 § 120. Involuntary alienation. — Except the power which 
 the court of chancery possesses in certain cases, and which 
 
 1 Greenough «. Greenongh, 11 Pa. St. 489; Reiser v. Tell Association, 
 39 Pa. St. 137; James v. Bowland, 42 Md. 162. 
 
 * " A party who acquires property does not acquire with it the right to 
 devise such property according to the law as it exists at the time he ac- 
 quires it. Wills and testaments, rights of inheritance and succession 
 are all of them creatures of the civil or municipal law, and the law relat- 
 ing to or regulating any of them may be changed at the will of the legisla- 
 ture. But no change in the law made after the death of the testator or 
 intestate will afiect rights which became vested in the devisee, heir or 
 representative by such death." Sturgis v. Ewing, 18 111. 176. See Em- 
 mert v. Hays, 89 lU. 11. 
 
 § 120 
 
358 POLICE REGULATION OF EEAL PKOPEETT. 
 
 of course is subject to repeal or regulation by the legisla- 
 ture, the power to effect an involuntary alienation rests 
 upon legislative enactment. As a general proposition, the 
 legislature cannot divest one of his vested rights against 
 his will. It can enact laws for the control of property and 
 of its disposition, but it cannot take the private property of 
 one man and give it to another.* But there are certain 
 well-known exceptions to this general rule, where the inter- 
 ference of the legislature is necessary to save and protect 
 the substantial interests of individuals on account of their 
 own inability to do so, or to promote the public good. In 
 some of the State constitutions there is a provision against 
 the enactment of special laws, operating upon particular 
 individuals or upon their property. In those States, there- 
 fore, involuntary alienation can only be effected by a gen- 
 eral law, applicable to all persons under like circumstances. 
 But in the absence of such a constitutional provision, the 
 transfer of lands may be made by special acts of the legis- 
 lature, as well as under a general law.'' But wherever such 
 a transfer by special act of the legislature would involve 
 the assumption of judicial power, it would be generally 
 held void, under the common constitutional provision which 
 denies to the legislature the exercise of such powers. * 
 
 One of the most important, and the most easily justified, 
 cases of involuntary alienation, is one affecting the prop- 
 erty of persons under legal disability. Where persons are 
 under a legal disability which prevents them from making a 
 
 ' Wilkinson ». Leland, 2 Pet. 668; Adams v. Palmer, 61 Me. 494; Com- 
 monwealth V. Alger, TCush. 53; Varick v. Smith, 6 Paige, 159; Matter ol 
 Albany Street, 11 Wend. 149; John and Cherry Street, 19 Wend. 676; 
 Taylor ». Porter, 4 Hill, 147; Heyward v. Mayor, 7 N. Y. 324; Bowman v. 
 Middleton, 1 Bay, 262; Bussell v. Rumsey, 36 111. 374; Good v. Zercber, 
 12 Ohio, 368; Deutzel v. Waldle, 30 Cal. 144. 
 
 ' Sohier v. Mass. Gen. Hospital, 3 Gush. 483 ; Kibby v. Chitwood, 4 B. 
 Mon. 95; Edwards v. Pope, 4 111. 473. 
 
 ' Eice V. Parkman, 16 Mass. 326; Jones v. Perry, 10 Terg. 69; Lane «. 
 Dorman, 4 111. 238 ; Edwards v. Pope, 4 111. 473. 
 
 § 120 
 
INVOLUNTARY ALIENATION. 359 
 
 valid sale of their property, and such sale and reinvestment 
 of the proceeds of sale are necessary for the conservation 
 of their interests, the State, in the capacity of 'parens 
 patricB, has the power to authorize a sale by the guardians 
 of such persons. This may be done by special act or by 
 a general law.^ The law which imposes the disability may 
 very properly provide against the injurious consequences of 
 such disability. But the property of persons who are not 
 under a disability cannot be sold by authority of the courts, 
 on the ground that such a sale would be beneficial.'' In 
 most of the States there are general laws authorizing the 
 <jourts to empower the guardians of minors, lunatics and 
 other persons under disability, to make sale of the real 
 property of such persons. 
 
 The law also provides for sales of real property by 
 the administrators and executors of the deceased owner. 
 Where one dies without having made proper provision, 
 for such contingencies, it is often necessary that some 
 one should be authorized to make a sale of the lands 
 for the purpose of making an effective administration, 
 and to protect and satisfy the claims of those who are in- 
 terested in the property. If the deceased leaves a will he 
 very often, perhaps generally, empowers the executor to 
 make sale of the land, when necessary. Where the execu- 
 tor has the testamentary power, his sales are presumed to 
 be under this power, and there is no need of a resort to the 
 statutory power.' But these express testamentary powers 
 are supplemented by statutes, which authorize courts of pro- 
 
 1 Sohier v. Mass. Gen. Hospital, 16 Mass. 326; s. c. 3 Cush. 483; Da- 
 vidson V. Johonot, 7 Mete. 395; Cochran o. Van Surlay, 20 Wend. 365; 
 Estep V. Hutchman, 14 Serg. & R. 436; Doe v. Douglass, 8 Blackf. 10; 
 Eirby v. Chitwood, 4 B. Mon. 95 ; Shehan v. Barnett, 6 B. Mon. 694 ; Jones 
 V. Perry, 10 Yerg.59. 
 
 ' Wilkinson v. Leland, 2 Pet. 658 ; Adams o. Palmer, 61 Me. 494 ; Sohier 
 v. Mass. Gen. Hospital, 3 Cush. 483; Hey ward v. Mayor, 7 N. Y. 324; 
 Ervine's Appeal, 16 Pa. St. 266; Palairet's Appeal, 67 Pa. St. 479. 
 
 » Payne v. Payne, 18 Cal. 291 ; White ». Moses, 21 Cal. 44. 
 
 § 120 
 
360 POLICE REGULATION OF REAL PROPERTY. 
 
 bate to order a sale of the decedent's lands by the adminis- 
 trator or executor, whenever this is necessary to the full 
 performance of his duties. Thus, if the personal property 
 is not sufficient to satisfy all the debts, the administrator or 
 executor may, under order of the court, make a valid sale of 
 the lands, and the proceeds of sale will constitute in his 
 hands a trust fund out of which the claims of the creditors 
 must be satisfied.-' 
 
 By the early common law, lands were inalienable for any 
 purpose, and consequently they could not be sold to pay 
 the debts of the owner. But as trade and commerce in- 
 creased, it became necessary that the creditors should be 
 provided with means for satisfying their claims by compul- 
 sory process against the debtor's property. In compliance 
 with the popular demand, the statutes merchant and statutes 
 staple were passed, which created in favor of the creditora 
 an estate in the debtor's land, whereby he was enabled to 
 enter into possession and satisfy himself out of the rents 
 and profits." These statutes have been abolished in England, 
 where they are superseded by the writ of elegit, which bears 
 a close resemblance to the American statutes of execution. 
 In all the American States there are statutes which provide 
 that, when a creditor obtains judgment against his debtor, 
 he may cause a writ of execution to be issued against the 
 property of the debtor, under which the sheriff is author- 
 ized to make sale of the real property, and to execute the 
 proper deeds of conveyance. In order to further protect 
 the creditor, it is provided by most of the State statutes 
 that the judgment, when properly docketed, creates a lien 
 upon all the debtor's real property, which attaches to, and 
 binds, the land into whosesoever hands it may come. The 
 judgment lien enables the creditor to sell the land under ex- 
 ecution, although it has been conveyed away by the debtor 
 
 1 See Tiedeman on Real Prop., § 766; 3 Washb. on Real Prop. 209. 
 » 2 Bla. Com. 161, 162. 
 
 § 120 
 
INVOLUNTARY ALIENATION. 361 
 
 to a purchaser for value. It is not necessary to attempt to 
 justify these cases of involuntary alienation. When a judg- 
 ment for debt is rendered, it determines that one man owes 
 another so much property, expressed and estimated in 
 money, and it is a very natural police regulation to give the 
 property to whom it is due. 
 
 The cases are numerous in which the court of chancery 
 has the power to decree a sale and conveyance, and it will 
 he impossible to enumerate them. The more common cases 
 are the decree of sale in the foreclosure of a. mortgage, in 
 the enforcement of an equitable lien, in an action for spe- 
 cific performance of a contract for the sale of lands, in the 
 confirmation of defective titles, and the sale of equitable 
 estates to satisfy the claims of creditors. In all these cases, 
 originally, the court in its decree ordered the holder of the 
 legal title, or the owner of the land, to make the proper deeds 
 of conveyance, upon pain of being punished for contempt of 
 court. If the individual was obstinate or beyond the juris- 
 diction of the court, the court was powerless to effect a 
 conveyance.* But now courts of equity generally possess 
 the power to authorize some officer of the court, usually 
 the master, to execute the necessary deeds of conveyance, 
 and such deeds will be as effectual in passing an indefeasible 
 title as the sheriff's deed under execution.* 
 
 Generally when a title is defective through some infor- 
 mality in the execution of the conveyance, upon a proper case 
 being made out, the court of equity will aflFord an ample 
 remedy by decreeing a reformation of the instrument.' 
 But cases do arise where, through the absence or death of 
 
 ' Ryder v. Innerarlty, 4 Stew. & P. 14; Mummy v. Johnston, 3 A. K. 
 Marsh. 220} Sheppard v. Commissioners of Boss Co., 7 Ohio, 271. 
 
 ' 3 Washb. on Eeal Prop. 219; Tledeman on Eeal Prop., § 758. 
 
 * Adams V. Stevens, 49 Me. 362; Brown v. Lamphear,36 Vt. 260; An- 
 drews V. Spnrr, 8 AUen, 416; Metcalf v. Putnam, 9 Allen, 97; Conedy v. 
 Marcy, 13 Gray, 373; Prescott ». Hawtins, 16 N. H. 122; Caldwell i). 
 Fulton, 31 Pa. St. 484; Keene's Appeal, 64 Pa. St. 274; Mills i;. Lockwood, 
 42 ni. Ill ; Gray v. Bornbeck, 31 Mo. 400. 
 
 § 120 
 
362 POLICE REGULATION OF REAL PROPEETr. 
 
 the parties, or through a want of knowledge as to who they 
 are, it is impossible to obtain a reformation in chancery ; 
 ;ind even in cases where the equitable remedy is only 
 troublesome and inconvenient, and the defect is only an in- 
 formality, which does not go to the essence of the convey- 
 ance, and which does not create any doubt as to the inten- 
 tion to make a valid conveyance ; the power of the legislature 
 to interfere and cure the defect by special act has been gen- 
 erally sustained by the courts of those States, where special 
 acts are not inhibited by the constitution.^ 
 
 The compulsory partition of a joint estate, by allotment 
 or by sale of the premises and distribution of the proceeds 
 of sale, is another recognized class of involuntary alien- 
 ations. The co-tenants of a joint estate may make a vol- 
 untary partiticm by mutual conveyance to each other of 
 their share in different parts of the estate ; that is, by 
 dividing up the estate into several parcels, and making con- 
 veyance of one parcel to each, all joining in the deed or 
 deeds, a partition can be made.* This was effected merely 
 by the joint exercise of the right of alienation. The con- 
 sent of all had to be obtained, for all had to join in the 
 deed of partition. Involuntary partition is quite different. 
 This gives one co-tenant the right to take away the prop- 
 erty of another against his will, and compel him to accept 
 in the place of it a different interest in the land, or his 
 share in the proceeds of sale. At common law, no suit for 
 partition of a joint estate could have been sustained against 
 the will of any one of the co-tenants, except in the case of 
 an estate in coparcenary ; and it was not until the reign of 
 Henry VIII. that any legal action was provided for com- 
 pulsory partition. The distinction, made by the common law 
 
 1 See Wilkinson v. Leland, 2 Pet. 627; s.e. 10 Pet. 294; Watson o. 
 Mercer, 8 Pet. 88; Kearney v. Taylor, 15 How. 494; Adams v. Palmer, 61 
 Me. 494 ; Sohier v. Mass. Gen. Hospital, 3 Cash. 483 ; Chestnut v. Shane's 
 Lessee, 16 Ohio, 599 ; Tledeman on Real Prop., § 755. 
 
 " Tiedeman on Real Prop., § 260; 1 Washb. on Real Prop. 676. 
 § 120 
 
INVOLUNTARY ALIENATION. 363 
 
 in this connection between estates in coparcenary and other 
 joint estates, rests upon the fact that the estate in coparcen- 
 ary arises by operation of law, by descent to the heirs, with- 
 out the consent of the co-tenant. It was but reasonable that 
 the common law should provide a means of converting the 
 estate in coparcenary into estates in severalty. The other 
 joint estates, are created by and with the consent of the co- 
 tenants, for they are always created by purchase, and they 
 may be presumed to have intended that the estate should 
 ever remain a joint estate, at least as long as all the co- 
 tenants do not agree to a partition. But, yielding to the 
 pressure of public opinion, which has always in England 
 ^md in this country demanded the removal of all restrictions 
 against the free alienation of land, and the regulation of 
 estates in land in such a manner that a change of ownership 
 may take place in the easiest possible manner, statutes were 
 passed in the reign of Henry VIII., and likewise in the dif- 
 ferent States of the Union, creating a legal action for the 
 •compulsory partition in all Joint estates except estates in 
 entirety.^ The right of compulsory partition of all joint 
 €states, as an invariable incident of these estates, except in 
 the case of tenancies in entirety, has come down to us as an 
 inheritance from the mother country, and all joint estates 
 in the United States have been created in actual or im- 
 plied contemplation of the possibility of a compulsory 
 partition. Consequently no question can arise as to the 
 •constitutionality of laws providing for compulsory partition. 
 It would be different if the right of compulsory partition 
 were gi-anted now for the first time, and the statute was 
 made to apply to existing joint estates. So far as it ap- 
 plied to existing joint estates, the law would be unconsti- 
 tutional, because of its interference with vested rights. 
 But all subsequently created joint estates would take effect 
 
 > Tiedeman on Real Prop., §§ 261, 262, 290; 1 Washb. on Real Prop. 661, 
 '676; Williams on Real Prop. 103. 
 
 § 120 
 
364 POLICE EEGULATIOnr OF REAL PROPERTY. 
 
 subject to this provision for compulsory partition, and no 
 one's rights are violated. No partition could be made of a 
 tenancy in entirety, principally because a man and his wife 
 could not sue each other. The right of compulsory parti- 
 tion was therefore not an incident of tenancies in entirety .^ 
 It has been much mooted, whether tenancies in entirety 
 were not by implication converted into tenancies in com- 
 mon by statutes, which in general terms give to married 
 women, in respect to their property, the rights and powers 
 of single women. Although there are a few cases, in which 
 the courts have held that tenancies in entirety were inferen- 
 tially abolished,^ the majority of the cases deny that these 
 statutes have had any effect upon the law of estates in en- 
 tirety, and that a conveyance of lands to a man and wife 
 makes them tenants in entirety, with the common-law rights 
 and incidents of such tenancies, now, as before the statute.* 
 The right to the continued existence of the tenancy in en- 
 tirety, except when it is destroyed by a voluntary partition, 
 is a vested right which cannot be taken away by subsequent 
 legislation. A statute, which gave to tenants in entirety 
 the right of compulsory partition would be unconstitutional, 
 so far as it was made to apply to existing tenancies in en- 
 tirety. 
 
 A statute of Kentucky * authorized the sale of real estate 
 in fee, upon the petition of the life tenant, with or without, 
 the consent of the tenant in remainder or reversion. The 
 object of the statute was the same which prompted the 
 
 1 Tiedemanon Real Prop., § 242; 1 Washb. on Eeal Prop. 673. 
 
 ' Clark V. Clark, 66 N. H. 106; Cooper v. Cooper, 76 111. 67; Hoffman 
 V. Steigers, 28 Iowa, 802. 
 
 ' Marburg v. Cole, 49 Md. 402 (33 Am. Rep. 266, Hulett ». Inlow, 67 
 Ind. 412 (26 Am. Rep. 64; ; Hemingway r. Scales, 42 Miss. 1 (2 Am. Rep. 
 686) ; McCurdy v. Canning, 64 Pa. St. 39 ; Diver v. Diver, 66 Pa. St. 106; 
 Bennett D. Child, 19 Wis. 365; Fisher v. Provin, 26 Mich. 847; Groveri?. 
 Jones, 62 Mo. 68; Robinson v. Eagle, 29 Ark. 202; Goelett v. Gori, 31 
 Barb. 314; Meeker v. Wright, 76 N. Y. 262. 
 
 * Civil Code, §491. 
 § 120 
 
INVOLUNTAEr ALIENATION. 365 
 
 grant of the right of compulsory partition, viz. : to facilitate 
 the change of ownership in lands. The statute was declared 
 to be uuconstitutional, except in its application to cases in 
 which the reversioner or remainder-man is laboring under 
 some disability, such as infancy, insanity, or the like. It 
 was claimed that in no other case could a citizen be deprived 
 of the right to manage his property without state interfer- 
 ence.^ There cannot be any doubt of the unconstitutionality 
 of the law when it is applied to existing life estates, re- 
 mainders and reversions, although such laws have been sus- 
 tained in Massachusetts and Connecticut " The application 
 of the statute to such cases would operate to deprive persons 
 of their vested rights, and consequently would be unconsti- 
 
 1 Glossom V. McFerran, 79 Ky. 236. 
 
 ' Statute authorized sale of lands on petition of lite tenant: — 
 
 " It is said by the petitioners that this resolution deprives them of their 
 interest in the property against their will and is therefore void, not only 
 as opposed to natural justice, but as in conflict with the provisions of the 
 constitution of the state. It was held by this court in the case of Rich- 
 ardson V. Monson, 23 Conn. 94, that the statute which authorizes the sale 
 of lands held in joint tenancy, tenancy in common, or coparcenary, when- 
 ever partition cannot conveniently be made in any other way, is consti- 
 tmional. That case was ably discussed by counsel, who offered some 
 arguments against the constitutionality of the statute, which have been 
 urged upon our consideration against the validity of this resolution. It 
 is difllcult to see any distinction in principle between the two cases. 
 When a sale is made of real estate held in joint tenancy, the tenant op- 
 posed to the sale is as much deprived of his estate by the change which 
 is made, as these petitioners are of their property, by the change author- 
 ized by this resolution. In either case the parties are not subjected to a 
 loss of their property. It is simply changed from one kind to another." 
 Linsley v. Hubbard, 44 Conn. 109 (26 Am. Eep. 431) . 
 
 " The Legislature authorizes the sale, taking care that the proceeds 
 shall go to the trustees for the use and benefit of those having the life 
 estate, and of those having the remainder, as they are entitled under the 
 will. This is depriving no one of his property, but is merely changing 
 real estate into personal estate, for the benefit of all parties in interest. 
 This part of the resolve, therefore, is within the scope of the powers ex- 
 ercised from the earliest times, and repeatedly adjudged to be rightfully 
 exercised by the legislature." Sohier v. Mass. Gen. Hospital, 3 Cush. 
 496; Eice v. Parkman, 16 Mass. 326. 
 
 § 120 
 
366 POLICE REGULATION OF REAL PEOPBRTY. 
 
 • 
 
 tutional. But in its application to future cases, the statute 
 violates no provisions of the constitution, for like the statu- 
 tory right of compulsory partition, it would attach as an 
 ordinary incident to all subsequently created estates for life, 
 and in remainder or reversion : no vested right would be in- 
 vaded, for the vested rights of those, who would be affected 
 by the compulsory sale, would be acquired subject to the 
 exercise of this power. 
 
 Another case of involuntary alienation occurs under the 
 operation of the so-called betterment laws. Under the com- 
 mon law maxim, quidquid plantatur solo, solo cedit, what- 
 ever is annexed to the soil, whether by the owner or by a 
 stranger, without the consent of the owner, becomes a part 
 of the soil, in legal contemplation, and consequently the 
 property of the owner of the soil. If a stranger makes an 
 erection upon the land, with the consent of the owner, the 
 property in the house or other erection remains in the 
 licensee, and he can remove it whenever the license is re- 
 voked. If he does not then remove it, he loses his right to 
 it, and it becomes the property of the owner of the soil.^ 
 
 If the building is erected by a stranger without the 
 consent of the owner of the soil, it at once becomes 
 the property of the latter, although the stranger has 
 made the improvements, believing in good faith that 
 he had a good title to the land.^ So far as the principle 
 
 1 Tapley v. Smith, 18 Me. 12; Russell v. Richards, 10 Me. 429; Keyser 
 V. School District, 35 N. H. 480; Coleman i). Lewis, 27 Pa. St. 291; Beid 
 V. Kirk, 12 Rich. 54; Yates v. Mullen, 24 Ind. 278; Mott t). Palmer, 1 
 Const. 571 ; Hinckley v. Baxter, 13 Allen, 139 ; Antoni v. Belknap, 102 Mass. 
 200; Kutter v. Smith, 2 Wall 491; O'Brien ?). Kustener, 27 Mich. 292; 
 Ham V. Kendall, 111 Mass. 298; Goodman v. Hannibal & St. Joseph R. E. 
 Co., 45 Mo. 33. 
 
 2 Osgood V. Howard, 6 Greenl. 452; Aldrichv. Parsons, 6 N. Y. 55g; 
 Dame v. Dame, 38 N. H. 429; Ogden v. Stock, 34 HI. 522; Rogers «. 
 Woodbury, 15 Pick. 156 ; Mott. v. Palmer, 1 Const. 571 ; West v. Stewart, 
 7 Pa. St. 122; Webster v. Potter, 105 Mass. 416; Powells. M. & B. Mfg. 
 Co., 3 Mason, 369; 2 Kent's Com. 334-338; Tiedeman on Real Prop., § 
 702. 
 
 § 120 
 
INVOLUNTARY ALIENATION. 367 
 
 was applied to bona fide holders of land under a mistaken 
 claim of title, it gave to the owner of land property to 
 which he could make no moral or equitable claim. His title 
 to the improvements vested simply under the operation of the 
 technical legal rule j ust stated. In order to remedy this gross 
 injustice of the common law, statutes have been passed in 
 many of the States known as betterment laws, which gen- 
 erally, in substance, provide that upon the recovery of land 
 from one who has been a bona fide disseisor under color of 
 title, the plaintiff shall reimburse the defendant for the im- 
 provements, which he has made under the mistaken belief 
 that he was the owner of the land , or transfer the title to the 
 defendant, upon the payment of the value of the land without 
 the improvements. Although differing somewhat in detail, 
 they all substantially conform to this description. The 
 constitutionality of the statutes has been repeatedly ques- 
 tioned, but they have invariably been sustained.^ 
 
 The constitutionality of these laws has been generally sus- 
 tained in their application to improvements already made 
 under a mistaken claim of title, as well as to those made 
 after the enactment of the statutes. Judge Story held^ that 
 such a law could not constitutionally be made to apply to 
 improvements made before its passage. Mr. Cooley states 
 that this decision was rendered under the New Hampshire 
 constitution, which forbade retrospective laws.' But, even 
 
 ' See Brown «. Storm, 4 Vt. 37; Whitney v. Richardson, 31 Vt. 300; 
 Brackett v. Norcross, 1 Me. 89 ; Withington v. Corey, 2 N. H. 116; Bacon 
 V. Callender, 6 Mass. 303; Fowler v. Halhert, 4 Bibb, 54; Hunt's Lessee 
 V. McMahon, 6 Ohio 132; Longworth «. WortMngton, 6 Ohio, 9; Eoss v. 
 Irving, 14 111. 171 ; Childs v. Shower, 18 Iowa, 261 ; Pacquette v. Pickness, 
 19 Wis. 219 ; Armstrong v. Jackson, 1 Blackf . 374 ; Coney v. Owen, 6 
 Watts, 435 ; Steele v. Spruance, 22 Pa. St. 256 ; Lynch v. Brudie, 63 Pa. St. 
 206; Griswold v. Bragg, 48 Conn. 577; Dothage v. Stuart, 35 Mo. 670; 
 Fenwick v. Gill, 38 Mo. 510; Ormond ». Martin, 37 Ala. 598 ; Pope v. 
 Macon, 28 Ark. 644; Howard v. Zeyer, 18 La. An. 407; Love v. Shartzer, 
 31 Cal. 487. 
 
 « In Society, etc., v. Wheeler, 2 Gall. 105. 
 
 ' Cooley Const. Lim. 479, note. 
 
 § 120 
 
368 POLICE EEGULATION OF REAL PROPEETT, 
 
 independently of this special constitutional provision, and 
 applied to betterment laws generally, the position of Judge 
 Story is sound. Under the legal maxim: quidquid planta- 
 tur solo, solo cedit, the improvements already made, when 
 the statute was passed, had become the absolute property of 
 the real owner of the land, and a statute which took away 
 the right to these improvements would interfere with vested 
 rights, and for that reason would be unconstitutional. But 
 inasmuch as the right to the improvements subsequently 
 made would depend upon the continued existence of this 
 common-law rule, its repeal or change would prevent the 
 right from vesting, and so far as these statutes gave to the 
 bona fide disseisor of the land the right to the improve- 
 ments made by him after the enactment of the statute, it 
 would not violate any constitutional provision. If the 
 statute did not go farther in the adjustment of the antago- 
 nistic rights of the two claimants, the statute would create 
 in them a species of joint estate. But the statute proceeds 
 to give to the real owner of the land his election to pay the 
 bona fide disseissor the value of the improvements, or to 
 transfer to him the title to the land, upon receiving pay- 
 ment of the value of the land without the improvements. 
 This latter provision of the statute without doubt works an 
 interference with vested rights, for a man's right of prop- 
 erty has been either charged with a burden, in the shape of 
 liability for improvements which he has not directed to be 
 made, or given to another on account of no fault of his own. 
 But circumstances and facts, which cannot be changed in 
 order to place the parties in statu quo, have created between 
 them a g'was^-joint estate of such a nature that the property 
 cannot be mutually profitable without a partition. Com- 
 pulsory partition of apeculiar kind is ordered, viz : the owner 
 of the land is obliged to pay for the improvements, or to 
 sell the land to the other claimant. When applied to the 
 improvements, which are made after the enactment of the 
 statute, the statute is as constitutional as the laws which 
 § 120 
 
INTOLUNTABY ALIENATION. 369 
 
 provide for the compulsory partition of ordinary joint 
 «states. "Betterment laws, then, recognize the existence 
 of an equitable right, and give a remedy for its enforce- 
 ment where none has existed before. It is true that they 
 make a man pay for improvements which he has not di- 
 rected to be made ; but this legislation presents no feature 
 of officious interference by government with private prop- 
 erty. The improvements have been made by one person 
 in good faith, and are nowto be appropriated by another. 
 The parties cannot be placed in statu quo, and the statute 
 Accomplishes justice as nearly as the circumstances of the 
 oase will admit, when it compels the owner of the land, who, 
 if he declines to sell, must necessarily appropriate the bet- 
 terments made by another, to pay the value to the person 
 at whose expense they have been made. The case is pecu- 
 liar; but a statute cannot be void as an unconstitutional 
 interference with private property, which adjusts the equi- 
 ties of the parties as nearly as possible according to natural 
 justice." ^ It was held in Ohio that a statute was unconsti- 
 tutional, which gave to the occupying claimant the right to 
 buy the land or receive payment for the improvements he 
 had made. The right of election should be given to the 
 owner of the land. The court say : " The occupying claim- 
 ant act, in securing to the occupant a compensation for his 
 improvements as a condition precedent to the restitution 
 of the lands to the owner goes to the utmost stretch of 
 the legislative power touching this subject. And the stat- 
 ute, * * * providing for the transfer of the fee in the 
 land to the occupying claimant, without the consent of the 
 owner, is a palpable invasion of the right of private prop- 
 €rty, and clearly in conflict with the constitution." ^ 
 
 It would seem reasonable, also, to maintain that in 
 order that the claim for improvements under the better- 
 
 1 Cooley Const. Lim. 480. 
 
 2 McCoy », Grandy, 3 Ohio St. 463. 
 
 24 § 120 
 
370 POLICE REGULATION OF REAL PROPERTY. 
 
 ment laws may be made, the improvements must be per- 
 manent annexations. Where the improvements consist of 
 clearing or draining lands, the benefit has become abso- 
 lutely inseparable from the land ; but where the improve- 
 ments consist of houses and other buildings, they could be 
 removed in most cases, at least when they were frame 
 buildings. Where the buildings are constructed upon firm 
 and permanent foundation imbedded in the soil, particularly 
 when the buildings are made of brick or stone, the cost of 
 removal would in most cases almost amount to the value of 
 the improvement, and to compel a removal would be almost 
 as unjust as to give the improvements to the owner of the 
 land. But when the buildings are frames, resting tempo- 
 rarily upon blocks, or upon the ground, by analogy, the 
 distinction beeween permanent and temporary annexations, 
 which obtain in the law of fixtures, may be recognized in 
 this connection, and in the last case the occupying claimant 
 mny be permitted to remove his temporary structure, but 
 cannot claim any compensation for it under the betterment 
 laws.^ 
 
 Section 121. Eminent domain. 
 
 121a. Exercise of power regulated by legislature. 
 1216. Public purpose, wtiat is a. 
 121c. What property may be taken? 
 121d. What constitutes a taking? 
 121e. Compensation, how ascertained. 
 
 § 121. Eminent domain . — It has been already explained * 
 that all lands were originally the common property of the 
 human race ; necessarily so, since land is the free gift of 
 nature, andnottheproductofman'slabor. It was also shown 
 that, under the present law of real property, the private 
 owner of lands acquires only a tenancy of more or less limited 
 
 1 For a discussion of the law of eminent domain, see next section, 
 § 121 ; for the limitations upon the power of taxation, see post, § 129. 
 » See § 115. 
 § 121 
 
EMINENT DOMAIN. 371 
 
 duration under the absolute and ultimate proprietorship of 
 the State, as the representative of organized society, subject 
 to certain conditions, one of which is that the State may at 
 any time, on payment of its value, reclaim the tenancy so 
 granted to private individuals, whenever the public exigen- 
 cies require such confiscation. This right of confiscation of 
 private lands for public purposes is called the right of emi- 
 nent domain. Mr. Cooley speaks of eminent domain as 
 referring, not only to those superior rights of the State in 
 the private lands of the individual, but also to any lands 
 which the State may own absolutely, such as public build- 
 ings, forts, navigable rivers, etc.^ It seems to me that this 
 more comprehensive use of the term unnecessarily con- 
 founds it with ^^ public domain," and deprives it of its 
 technical and special signification. Mr. Cooley also defines 
 the term to mean ' ' that superior right of property pertain- 
 ing to the sovereignty by which the private property 
 acquired by its citizens under its protection may be taken or 
 its use controlled for the public benefit without regard to 
 the wishes of its owners,"^ including personal, as well as 
 real property, except money and rights of action.^ There 
 is some foundation for this use of the term in the writings 
 of political economists and publicists, and in the dicta of 
 judges.* It is also true that personal property may be for- 
 
 1 Cooley on Const. Lim. 647, 648. 
 
 ' Cooley on Const. Lim. 649. 
 
 "Cooley on Const. Lim. 652,653. "Generally it maybe said, legal 
 and equitable rights of every description are liable to be thus approprU 
 ated. From this statement, however, must be excepted money, or that 
 which in ordinary use passes as such, and which the government may 
 reach by taxation, and also rights in action, which can only be available 
 when made to produce money ; neither of which can It be needful to take 
 under this power." 
 
 ' "The right which belongs to the society or to the sovereign of dis- 
 posing, in case of necessity, and for the public safety of all the wealth 
 contained in the State, is called the eminent domain." McKinley, J., in 
 Pollard's Lessee v. Hagan, 3 How. 212, 223. In this case, as in all other 
 actual cases of the exercise of the right of eminent domain, the thing ap- 
 propriated was land. 
 
 § 121 
 
372 POLICE REGULATION OF REAL PEOPEETr. 
 
 cibly taken from private owners for public uses, whenever 
 extreme necessity requires it, as in the case of war or of a 
 a general famine.^ But, inasmuch as the grounds for the 
 justification of this involuntary appropriation of private 
 property to public purposes are different, according as the 
 pi-operty is real or personal, the former resting upon the 
 claim of a superior property in lands, the other upon the 
 illogical plea of urgent and overruling necessity, it is wise 
 to confine the term "eminent domain " to the cases of land 
 appropriation, and employ some other term to signify the 
 official appropriation of personal property. Eminent 
 domain, therefore, is the superior right of the State to 
 appropriate for public purposes the private lands within 
 its borders, upon payment of a proper compensation for the 
 property so taken. 
 
 § 121a, Exercise of power regulated by legislature. — 
 
 The exercise of this right is in the first instance reposed in 
 the legislature. Until the legislature by enactment deter- 
 mines the occasions when the conditions under which, and 
 the agencies by which, the power of appropriation may be 
 exercised, there can be no lawful appropriation of lands to 
 public purposes. The exercise of the right is a legislative 
 act, and requires no judicial confiscation of the land, in 
 order to divest the private owner of his title.' Except , 
 so far as the exercise of the power may be limited 
 and controlled by provisions of the constitution, the neces- 
 sity for its exercise is left to the legislative discretion. 
 The courts cannot question the necessity for the taking, 
 
 1 See post, § 137. 
 
 2 " It requires no judicial condemnation to subject private property to 
 public uses. Like the power to tax, it resides with the legislative de. 
 partment to v^bom the delegation is made. It may be exercised directly 
 or indirectly by that body; and it can only be restrained by the judiciary 
 when its limits have been exceeded or its authority has been abused or 
 perverted." Kramer v. Cleveland & Pittsburg E. E. Co., 6 Ohio St. l.iO, 
 116. 
 
 § 121a 
 
EXERCISE OF POWER REGULATED BY LEGISLATURE. 373 
 
 provided the land is taken for a public purpose. The leg- 
 islative determination of the necessity is final, and is not 
 subject to review by the courts. 
 
 The following quotation, from an opinion of Judge Denio, 
 of the New York Court of Appeals,^ will be sufficient to 
 explain the reasons by which the exclusion of this question 
 from judicial investigation, and the consequent denial to the 
 property owner of the right to be heard in his behalf, may 
 be justified. The learned judge says : " The question then 
 is, whether the State, in the exercise of the power to appro- 
 priate the property of individuals to a public use, where the 
 duty of judging of the expediency of making the appropri- 
 ation, in a class of cases, is committed to public officers, is 
 obliged to afford to the owners of the property an opportu- 
 nity to be heard before those officers when they sit for the 
 purpose of making the determination. I do not speak now 
 of the process for arriving at the amount of compensation 
 to be paid to the owners, but of the determination whether, 
 under the circumstances of a particular case, the property 
 required for the purpose shall be taken or not; and I am of 
 the opinion that the State is not under any obligation to 
 make provision for a judicial contest upon that question. 
 The only part of the constitution which refers to the sub- 
 ject is that which forbids private property to be taken for 
 public use without compensation, and that which prescribes 
 the manner in which the compensation shall be ascertained. 
 
 " It is not pretended that the statute under consideration 
 violates either of these provisions. There is, therefore, no 
 constitutional injunction on the point under consideration. 
 The necessity for appropriating private property for the use 
 of the public or of the government is not a judicial ques- 
 tion. The power resides in the legislature. It may be 
 exercised by means of a statute which shall at once desig- 
 nate the property to be appropriated and the purpose of the 
 
 » People V. Smith, 21 N. Y. 595. 
 
 § 121a 
 
374 POLICE EKGULATION OP KEAL PROPERTY. 
 
 appropriation ; or it may be delegated to public officers, or, 
 as it has been repeatedly held, to private corporations 
 established to carry on enterprises in which the public are 
 interested. There is no restraint upon the power, except 
 that requiring compensation to be made. And where the 
 power is committed to public officers, it is a subject of leg- 
 islative discretion to determine what prudential regulations 
 shall be established to secure a discreet and judicious exer- 
 cise of the authority. The constitutional provision securing 
 a trial by jury in certain cases, and that which declares that 
 no citizen shall be deprived of his property without due 
 process of law, have no application to the case. The jury 
 trial can only be claimed as a constitutional right where the 
 subject is judicial in its character. The exercise of the 
 right of eminent domain stands on the same ground with 
 the power of taxation. Both are emanations of the law- 
 making power. They are the attributes of political 
 sovereignty, for the exercise of which the legislature is 
 under no necessity to address itself to the courts. In im- 
 posing a tax, or in appropriating the property of a citizen, 
 or a class of citizens, for a public purpose, with a proper 
 provision for compensation, the legislative act is itself due 
 process of law ; though it would not be if it should under- 
 take to appropriate the property of one citizen for the use 
 of another, or to confiscate the property of one person or a ' 
 class of persons, or a particular description of property upon 
 some view of public policy, where it could not be said to be 
 taken for a public use. It follows from these views that it 
 is not necessary for the legislature, in the exercise of the 
 right of eminent domain, either directly, or indirectly 
 through public officers or agents, to invest the proceedings 
 with the forms or substance of judicial process. It may 
 allow the owner to intervene and participate in. the discus- 
 sion before the officer or board to whom the power is given 
 of determining whether the appropriation shall be made in 
 a particular case, or it may provide that the officers shall 
 § 121a 
 
EXERCISE OF POWER REGULATED BY LEGISLATURE. 375 
 
 act upon their own views of propriety and duty, without the 
 aid of a forensic contest. The appropriation of the prop- 
 «rty is an act of public administration, and the form and 
 manner of its performance is such as the legislature in its 
 discretion may prescribe." ^ 
 
 While the exercise of the right of eminent domain belongs 
 primarily to the legislature, it is not necessary for it directly 
 to make the appropriation to public uses. Since the exer- 
 cise of the power is only permissible in the advancement of 
 the public interests, if that requirement is complied with, it 
 is also within the legislative discretion to determine whether 
 the confiscation shall be made by it, or by some other cor- 
 porate body or individual to whom the power is delegated. 
 If the public interests are subserved best, when the right is 
 exercised by a municipal corporation or a railroad company, 
 there can be no constitutional objection to the delegation of 
 the power, for the burden upon private property is not 
 thereby increased. The grant of the power to a town, city, 
 county or school district, needs no special defense, because 
 the delegate of the power is in each instance only a local 
 branch of the general State government. It is the govern- 
 ment in every case which makes the confiscation. But when 
 the power is granted to a corporation, composed of private 
 persons, who procure a grant of the power for the purpose 
 of making a profit out of it ; although the use to which the 
 land is put may serve to satisfy a public want, there is more 
 
 ^ See also United States v . Harris, 1 Sumn. 21 ; Spring v. Russell, 3 Watts, 
 294 ; Varick v. Smitli, 5 Paige Ch. 137 (28 Am. Dec. 417) ; People u. Smith, 21 
 N. Y. 696; Cooper v. Williams, 7 Me. 273; Perry u. Wilson, 7 Mass. 395; 
 Aldridge v. Railroad Company, 2 Stew. & Port. 199 (23 Am. Dec. 307) ; 
 O'Hara v. Lexington, etc., R. K. Co., 1 Dana, 232; Henry v. Underwood, 
 1 Dana, 247 ; Waterworks Co. v. Burkhardt, 41 Ind. 364; Ford v. Chicago, 
 etc., R. R. Co., 14 Wis. 609. But the question, whether the appropriation 
 shall be made, may be submitted by the legislature to a vote of the people, 
 or to some court or jury. Iron R. R. Co. v. Ironton, 19 Ohio St. 299. And 
 In Michigan, the submission of the question of necessity to a jury, is 
 made by the constitution an indispensable requirement. Mansfield, etc., 
 R. R. Co. V. Clark, 23 Mich. 619; Arnold v. Decatur, 29 Mich. 11. 
 
 § 121a 
 
376 POLICE EEGULATION OF KEAL PEOPERTY. 
 
 or less disposition to question the constitutional propriety 
 of the delegation of the power. But the constitutional 
 objection is deemed to be untenable. In granting to a 
 private corporation the right of eminent domain, the State 
 does not consider the benefit to the stockholders of the cor- 
 poration, but rather the public benefit derived from the con- 
 struction and maintenance of a turnpike, a railroad, etc. 
 It is true that government may undertake these public 
 improvements, but it is the prevailing opinion that the best 
 interests of the public are subserved by granting the right to 
 a private corporation which assumes, in return for the right 
 of eminent domain and the private gain to be got out of the 
 business, to satisfy the public want; and the legislature has 
 uniformly been held to hold within its discretion the power 
 of exercising this right or of delegating it, according as the 
 one course or the other seems best to promote the public 
 welfare.^ Not only js this permissible, but it is also held to 
 be constitutionally unobjectionable to delegate to the cor- 
 poration or individual, along with the exercise of the right 
 of eminent domain, the power to determine finally upon the 
 necessity for the taking, without any judicial investigation.* 
 
 1 Wilson ». Blackbird Creek Marsh Co., 2 Pet. 246; Stevens v. Middlel- 
 sex Canal, 12 Mass. 466; Boston Mill Dam v. Newman, 12 Pick. 467; 
 Lebanon v. Olcott, 1 N. H. 339; Petition of Mt. Washington Boad 
 Co., 36 N. H. 134; Eaton v. Boston C. & M. E. E. Co., 51 N- 
 H. 604; Armington v. Bamet, 15 Vt. 746; White Eiver Turnpike v. Centra- 
 E. E. Co., 21 Vt. 590; Bradley v. N. T. & N. H. E. E. Co., 21 Conn. 294; 
 Olmstead v. Camp, 33 Conn. 532; Beekman v. Saratoga & Schenectady B. 
 E. Co., 3 Paige, 73 (22 Am. Dec. 679); Bloodgood j). Mohawk & Hudsott 
 E. E. Co., 18 Wend. 9; Whiteman's Ex'rs o. Wilmington, etc., E. E. Co., 
 2 Harr. 514 ; Ealeigh, etc., E. -JR. Co. v. Davis, 2 Dev. & Bat. 451 ; Swan v. 
 Williams, 2 Mich. 427 ; Pratt v. Brown, 3 Wis. 603 ; Gnmer v. Lime Point, 
 18 Cal. 229. 
 
 ' People V. Smith, 21 N. Y. 595; Lyon v. Jerome, 26 Wend. 484; Mat- 
 ter of Fowler, 53 N. Y. 60; N. Y. Central, etc., E. E. Co v. Met. Gas Co., 
 63 N. Y. 326; Hays v. Eisher, 32 Pa. St. 169; Chicago, etc., E. E. Co. v. 
 Lake, 71 111. 333; North Missouri E. E. Co. v. Lackland, 26 Mo. 615; 
 North Mo. E. E. Co. v. Gott, 25 Mo. 540; Bankhead v. Browny, 25 Iowa> 
 MO; Warren e. St. Paul, etc., E. E. Co., 18 Minn. 384. 
 
 § 121a 
 
EXERCISE OF POWER REGULATED BT LEGISLATURE. 377 
 
 But while the power of the legislature to determine 
 the mode and occasion of the exercise of the right of 
 eminent domain is not restricted by constitutional limi- 
 tations, when the legislature has prescribed the condi- 
 tions and established regulations for the exercise of the 
 right, the performance of the conditions and the observance 
 of the regulations become an indispensable condition prece- 
 dent to the exercise of the right, and any failure to comply 
 with the requirements of the statute, will invalidate the con- 
 fiscation of property. There must be a most scrupulous 
 observance of all those provisions which were designed to 
 serve as a protection to the interests of the land owner.^ 
 
 1 " The statute says that, after a certain other shall have been passed, 
 the company may then proceed to take private property for the use of its 
 road ; that is equivalent to saying that the right shall not be exercised with- 
 out such subsequent act. The right to take private property for public 
 use is one of the highest prerogatives of the sovereign power; and here 
 the legislature has, in language not to be mistaken, expressed its inten- 
 tion to reserve that power until it could judge for Itself whether the 
 proposed road would be of sufficient public utility to justify the use of 
 this high prerogative. It did not intend to cast this power away, to 
 be gathered up and used by any who might choose to exercise it." 
 Gillinwater v. Hiss., etc., B. B. Co., 18 III. 1, 4. See Baltimore, etc., R. 
 E. Co. V. Nesbit, 10 How. 395; Stacy v. Vt. Cent. B. E. Co., 27 Vt. 39; 
 Burt V. Brigham, 117 Mass. 307; Wameslt Power Co. v. Allen, 120 Mass. 
 352; Lund D. New Bedford, 121 Mass. 286; Nichols c. Bridgeport, 23 Conn. 
 189 ; Judson v. Bridgeport, 25 Conn. 426 ; Bloodgood v. Mohawk, etc., B. 
 E. Co., 18 Wend. 9 ; Eeitenbaugh v. Chester Valley, R. R. Co., 21 Pa. St. 100 ; 
 State V. Seymour, 35 N. J. L. 47; W. Va. Transportation Co. ■». Volcanic 
 Oil & Coal Co., 6 W. Va. 382; Supervisors of Doddridge v. Stout, 9 W. 
 Va. 703; Decatur Co. v. Humphreys, 47 Ga. 565; Cameron v. Supervi- 
 sors, etc., 47 Miss. 264; St. Louis, etc., K. E. Co. v. Teters, 68 111. 144; 
 Mitchell V. Illinois, etc., Coal Co., 68 111. 28d; Chicago, etc., B. B. Co. 
 B. Smith, 78 111. 96; People v. Brighton, 20 Mich. 57; Power's Appeal, 29 
 Mich. 504; Kroop «. Porman, 31 Mich. 144; Moore i;. Bail way Co., 34 
 Wis. 173; Bohlman v. Green Bay, etc., E. R Co., 40 Wis. 157; Delphi v. 
 Evans, 36 Ind. 90; Ellis v. Pac. E. E. Co., 51 Mo. 200; United States v. 
 Reed, 56 Mo. 665; Commissioners v. Beckwith, 10 Kan. 603; St. Joseph, 
 etc., B. E. Co. V. Callender, 13 Kan. 496; Stanford v. Worn, 27 Cal. 171 ; 
 Brady v. Bronson, 45 Cal. 640; Stockton v. Whitmore, 50 Cal. 554; Paris 
 V. Mason, 37 Texas, 447. 
 
 § 121a 
 
378 POLICE REGULATION OF REAL PROPERTr. 
 
 It is also recognized as an invariable coroUaiy to this 
 rule, that the grants of the right of eminent domain are to 
 be strictly construed, and the powers delegated are not to 
 he extended by construction beyond the express limitation 
 of the statute. " There is no rule more familiar or 
 better settled than this; that grants of corporate power, 
 being in derogation of common right, are to be strictly con- 
 strued ; and this is especially the case where the power 
 claimed is a delegation of the right of eminent domain, 
 one of the highest powers of sovereignty pertaining to the 
 state itself, and interfering most seriously and often vexa- 
 tiously with the ordinary rights of property." ^ 
 
 But there are two constitutional limitations, imposed very 
 generally upon the exercise of the right of eminent domain, 
 and it is also a judicial question whether the legislature, in 
 the exercise of the right, has fully complied with their re- 
 quirements. One has reference to the ascertainment and 
 payment of the compensation to the land owner for the loss 
 of his land, which will be discussed subsequently,* and the 
 second provides that the private land of the individual shall 
 not betaken in the exercise of the right of eminent domain 
 except for public purposes. It is a legislative question 
 whether the public exigencies require the appropriation, 
 but it is clearly a judicial question, whether a particular 
 confiscation of land has been made for a public purpose.^ 
 
 ' Currier v. Marietta, etc., R. E. Co., 11 Ohio St. 228, 231. See W. 
 Va. Transportation Co. v. Volcanic Oil & Coal Co., 5 W. Va. 382; Brua- 
 Ing V. N. N. Canal & Banking Co., 12 La. Ann. 541 ; Gilmer v. Lime Point, 
 19 Cal. 47. 
 
 ' See post, § 121d. 
 
 ' Tyler v. Beacher, 44 Vt, 648 ; Olmstead v. Camp, 33 Conn. 551 ; 
 Beckman v. Railroad Company, 3 Paige, 45 (22 Am. Dec. 679) ; Matter 
 of Deansville Cemetery Association, 66 N. Y. 569 (23 Am. Rep. 86) ; 
 Scudder v. Trenton, etc., Co., 1 N. J. Eq. 694 (23 Am. Dec. 7S6) ; Lough- 
 bridge V. Harris, 42 Ga. 500; Harding v. Goodlett, 3 Yerg. 40 (24 Am. 
 Dec. 646) ; Chicago, etc., R. R. Co. v. Lake, 71 111. 333; Water Works 
 Co. ■». Burkhardt, 41 Ind. 364; Ryerson v. Brown, 35 Mich. 333 (24 Am. 
 Kep. 564) ; Bankhead v. Brown, 25 Iowa, 540. 
 § 121a 
 
PUBLIC PURPOSE, WHAT IS A. 379 
 
 § 1216. Public purpose, what is a. — The authorities 
 are unanimous in the recognition of the abstract proposition, 
 that the legislature cannot in the exercise of the right of em- 
 inent domain, even when the compensation is made on the 
 most liberal terms, take the land from a private owner and ap- 
 propriate it to any but a public use.^ But a careful reading 
 of the authorities fail to develop any definite meaning for 
 the term " publicuse." As long as the government exercises 
 the right directly and for the State's immediate benefit, no 
 ^ifiiculty is experienced in determining what is a publicuse. 
 There can be no doubt that land is devoted to a public use, 
 when it is taken for the purpose of laying out parks, and 
 
 1 ' ' The right of eminent domain does not imply a right in the sovereign 
 power to take the property of one citizen and transfer it to another, even 
 for a full compensation, where the public interest will be in no way pro- 
 moted by such transfer." Beekman a. Saratoga, etc., E. E. Co., 3 Paige, 
 73 (22 Am. Dec. 679) . " It is true there is neither in our constitution, 
 nor in the constitution of the other States, any express provision forbid- 
 ding, that private property should be taken for the private use of another 
 or any constitutional provisioa forbidding the legislature to pass laws, 
 whereby the private property of one citizen may be taken and transferred 
 ■to another for his private use without the consent of the owner. It was 
 ■doubtless regarded as uunecessary to insert such a provision in the consti- 
 tution or bill of rights, as the exercise of such arbitrary power of trans- 
 ferring by legislation the property of one person to another, without his 
 consent, was contrary to the fundamental principles of every republican 
 government; and in a republican government neither the legislative, ex- 
 ecutive nor judicial department can possess unlimited power. Such a 
 power as that of taking the private property of one and transferring it 
 to another for his own use, is not in its nature legislative, and it 
 is only legislative power, which by the constitution is conferred on the 
 legislature. Such an act, if passed by the legislature, would not in its 
 nature be law, but would really be an act of robbery, the exercise of 
 an arbitrary power, not conferred on the legislature." Varner v. Martin, 
 21 W. Va. 648. See, also, to the same effect, Bloodgoodv. Mohawk, etc., 
 E. E. Co., 18 Wend. 955; Matter of Albany St., 11 Wend. 149 (25 Am. 
 Dec. 618; ; Embury c. Conner, 3 N. Y. 511; N. Y., etc., E. E. Co. v. Kip, 
 46 N. Y. 546 (7 Am. Eep. 383) ; Teneyck v. Canal Co., 18 N. J. 200 (37 
 Am. Dec. 233); Edgewood E. E. Co.'s appeal, 79 Pa. St. 277; Concord 
 E. E. Co. V. Greely, 17 N. H. 47; Buckingham v. Smith, 10 Ohio, 288; 
 Coi'per V. Williams, 5 Ohio, 391 (24 Am. Dec. 299) ; Pratt v. Brown, 3 
 Wis. 603; Sadler r. Langham, 34 Ala. 311. 
 
 § 1216 
 
380 POLICE REGULATION OF REAL PROPERTY. 
 
 public gardens,^ for the constmction of public buildings of 
 all kinds/ aqueducts, drains and sewers,^ and the building of 
 levees on the banks of the Mississippi,* It is likewise 
 freely admitted that the State may appropriate lands with- 
 out limitation for the purpose of laying out streets and 
 highways. In all these cases of the exercise of the right 
 of eminent domain, the land is taken for the general use of 
 the public, and therefore is devoted to a public use. If in 
 any one of these cases the land was to be used by a few pri- 
 vate individuals, and not by the public generally, it would 
 not be a taking for a public use, and consequently it would 
 be unlawful. 
 
 There has been considerable doubt felt and expressed 
 concerning the constitutionality of State statutes, provid- 
 ing for the opening and maintenance of so-called private 
 roads, at the expense of the person or persons who may be 
 benefited thereby. These statutes usually provide that 
 some local offices or officers, usually the county court, shall 
 in all cases, where the public necessity will not justify the 
 opening of a public road, to be constructed and maintained 
 at the expense of the county, authorize, under certain limit- 
 ations, those persons who will be benefited by the open- 
 ing of such a road, to construct and maintain it at their own 
 
 expense, and to appropriate whatever land is needful. 
 
 i* 
 
 1 Owners of Ground v. Mayor, etc., of Albany, 15 Wend. 374; Matter 
 of Central Park Extension, 16 Abb. Pr. 56; Brooklyn Park Commissioners 
 V. Armstrong, 46 N. T. 234 (6 Am. Rep. 70) ; County Court v. Griswold, 
 68 Mo. 176. 
 
 2 Hooper v. Bridgewater, 102 Mass. 612; Williams v. School District, 
 33 Vt. 271; Long v. Fuller, 68 Pa. St. 170. 
 
 3 Ham V. Salem, 100 Mass. 350; French v. White, 24 Conn. 174; Gard- 
 ner V. Newburg, 2 Johns. Ch. 162 (7 Am. Dec. 526) ; Beddall v. Bryan, 
 14 Md. 444; Kane v. Baltimore, 16 Md. 240; Burden v. Stein, 27 Ala. . 
 104; Matter of Drainage of Lands, 34 N. J. L. 497; People v. Nearing, 
 27 N. Y. 306 ; Reeves v. Treasurer of Wood Co., 8 Ohio St. 833 ; Anderson 
 V. Kerns Draining Co., 14 Ind. 199; Hildreth v. Lowell, 11 Gray, 346. 
 
 ■* Mithoff D. CarroUton, 12 La. Ann. 185; Cash ». Whitworth, 13 La. 
 401 • Inge V. Police Jury, 14 La. Ann. 117. 
 § 1216 
 
PUBLIC PURPOSE, WHAT IS A. 381 
 
 The constitutionality of these statutes has been attacked, 
 on the ground that the roads, thus established, were private 
 and not for the benefit of the general public.'^ The diffi- 
 culty in the way of a clear understanding of the matter is 
 increased by a failure to appreciate the difference between a 
 public and a private road. If one or more individuals have 
 the power to appropriate land for the opening of a road for 
 their exclusive benefit, from which they may shut out the 
 general public, and which they may maintain or discontinue 
 at their pleasure, without any supervisory control on the 
 pai't of the State or municipal authorities, the road is most 
 certainly a private one, and the forcible appropriation of 
 land for it is a taking of private property without due pro- 
 cess of law. But if the road is open to the general public, 
 and the persons, for whose special benefit the road was 
 established, have not the power of closing it up at will, but 
 upon them the expense of constructing it and maintaining 
 it is imposed ; even though they may at will discontinue the 
 repairs, the road is a public one, notwithstanding it is called 
 by the statute authorizing it a private road, and it is opened 
 for the special benefit of those, who assume the expense of 
 its construction and maintenance. It being open to the 
 public, the fact that there is no pressing public need for 
 the road is not open to judicial investigation. The legisla- 
 
 1 Taylor v. Porter, 4 Hill, 140; Buffalo &N. Y. E. E. Co. v. Brainard, 9 
 N. Y. 100; Tyler v. Beacher, 44 Vt. 648 (8 Am. Eep. 398) ; Bradley v. N. 
 Y.,etc.,E.E. Co.,21Cona.294; Pittsburg i;. Scott, 1 Pa. St. 809; Varner«. 
 Martin, 21 W. Va. 534 ; Young v. McKenzle, 3 Ga. 31 ; Hickman's Case, 4 
 Harr. 580; Sadler ». Laugham, 34 Ala. 311; Beeveso. Treasurer of Wood 
 Co., 8 Ohio St. 333; Wild v. Deig, 43 Ind. 45 (13 Am. Eep. 399) ; Stewart 
 V. Hartroan, 46 Ind. 331; Blackman v. Halves, 72 Ind. 515; Osborn ». 
 Hart, 24 Wis. 89 (1 Am. Eep. 161) ; Nesbit».Trumbo, 39 111. 110; Dickey 
 V. Tennison, 27 Mo. 373; Bankhead v. Brown, 25 Iowa, 540; Witliam v. 
 Osburn, 4 Ore. 318 (18 Am. Eep. 287). But see Whittingham v. Bowen, 
 22 Vt. 317; Bell v. Prouty, 43 Vt. 279 ; Proctor «. Andover, 42 N. H. 848 ; 
 Pocopson Koad, 16 Pa St. 16 ; Harvey v. Thomas, 10 Watts, 63 ; Ferris v. 
 Bramble, 5 Ohio St. 109 ; Eobinsou v. Swope, 12 Bush, 21 ; Sherman v. 
 Brick, 32 Cal. 241, in which such the constitutionality of appropriations 
 is more or less sustained. 
 
 § 1216 
 
382 POLICE EKGULATION OF KEAL PROPEETY. 
 
 ture is the sole judge of the necessity for the appropriation 
 of private lands to a public use. The following quotation 
 from an opinion of the Supreme Court of Iowa will amply 
 illustrate the limitations upon the power of establishing 
 "private" roads over private lands: "The State may 
 properly provide for the establishment of a public road or 
 highway to enable every citizen to discharge his duties. 
 The State is not bound to allow its citizens to be walled in, 
 insulated, imprisoned, but may provide them a way of de- 
 liverance. The State may provide a public highway to a 
 man's house, or a public highway to coal or other mines. 
 If the road now in question had been established as a pub- 
 lic road under the general road law, as we confess we do 
 not see why it might not have been, there would be in our 
 minds no doubt of its validity, although it does not exceed 
 a half mile in length, and traverses the lands of but a 
 single person. For the right to take land for a public 
 road, that is, a road demanded by public convenience, as 
 an outlet to a neighborhood, or it may be as I think for a 
 single farmer, without other means of communication, can- 
 not depend upon the length of the road, or the number of 
 persons through whose property it may pass. 
 
 " With respect to the act of 1866, we are of opinion that the 
 roads thereunder established are essentially private, that is, 
 the private property of the applicant therefor, because :* 
 First, the statute denominates them private roads. If these 
 roads are not private and different from ordinary and public 
 roads, there was no necessity for these provisions. Sec- 
 ondly, such a road may be established upon the petition of 
 the appUcant alone ; and he must pay the costs and damages 
 occasioned thereby, and perform such other conditions as to 
 fences, etc., as the board may require. Thirdly, the public 
 are not bound to keep such roads in repair, and this is a sat- 
 isfactory test as to whether a road is public or private.^ 
 
 ' The second and third reasons for holding the road to be a private one 
 § 1216 
 
PUBLIC PURPOSE, WHAT IS A. 383 
 
 Fourthly, we see no reason when such a road is established, 
 why the person at whose instance it was done might not lock 
 the gates opening into it or fence it up, or otherwise debar 
 the public of any right thereto. Could not the plaintiffs, in 
 this case, having procured the road in question, abandon it at 
 their pleasure? Could they not relinquish it to the defend- 
 ants without consulting the board of supervisors ? If this is 
 so, does it not incontestably establish the fact, that it is 
 essentially j?Wuate? For it must be private if it is of such 
 a nature, that the plaintiffs can at their pleasure use or for- 
 bid its use, abandon or refuse to abandon it, relinquish or 
 refuse to relinquish it? If the act of 1866 is valid, might 
 not the plaintiffs, having procured the road, use it for lay- 
 ing down a horse or tramway, and forbid everybody from 
 using the road, and even exclude all persons therefrom ? 
 "Who could prevent it ? These conditions make the great 
 difference between such a road and a public highway, and 
 demonstrate the essentially private character of the road."^ 
 
 here stated, rather establish a rebuttable than a conclusive presump- 
 tion in favor of its private character. The establishment of the road up- 
 on the petition of the applicant, and its construction and mainten- 
 ance at his expense, are not necessarily inconsistent with its being a 
 public road, if the public have the use of it, and cannot be excluded 
 from it. 
 
 1 Dillon, Ch. J., in Bankhead v. Brown, 25 Iowa, 545. " The use, con- 
 venience and advantage of the public, contemplated by the law, are bene- 
 fits arising out of the aggregate of such improvements, to which a 
 particular road so established contributes to a greater or less degre^. But 
 no limitation upon the power of the court, in regard to any proposed 
 road, is to be found in the degree of accommodation, which it may ex- 
 tend to the public at large. That is a matter which addresses itself not 
 to the authority, but the discretion of the court. It cannot be predicated 
 of any road that it will be of direct utility to all the citizens of the county. 
 It may accommodate in travel and transportation but a small neighbor- 
 hood, or only a few individuals. Still, when established, it may be used 
 at pleasure by all the citizens of the county or country; and the public is 
 interested in the accommodation of all the members of the community." 
 Lewis V. Washington, 5 Gratt. 265. See Varner v. Martin, 21 W. Va. 
 534, for a most exhaustive review of the law and authorities on this 
 subject. 
 
 § 1216 
 
384 POLICE REGULATION OP KEAL PEOPERTY. 
 
 The difficulty of determining what is a public use becomes 
 greater and more perplexing, when the attention is turned 
 to those cases in which the right of eminent domain is exer- 
 cised, not by the State or municipality, by some private 
 stock corporation, which undertakes the performance of the 
 public work, in consideration of the tolls and other returns 
 they are permitted to require of the public for the outlay of 
 the capital they have made. We have already seen^ that 
 the right of eminent domain may be delegated to private 
 individuals and corporations, provided it is exercised in the 
 promotion of some public good. It is plain enough that 
 the establishment of railroads, turnpikes, canals aiid other 
 means of transportation and locomotion is as much a public 
 use as the construction of public streets or highways. The 
 facts, that they are established and owned by private individ- 
 uals or corporations, and that the general public must pay 
 a certain fee or toll for the privilege of using them, do not 
 affect their legal character. For, as Mr. Cooley says, " the 
 common highway is kept in repair by assessments of labor 
 and money ; the tolls paid upon turnpikes, or the fares on 
 railways, are the equivalents to these assessments ; and when 
 these improved ways are re quired by law to be kept open 
 for use by the public impartially, they also may properly 
 be called highways, and the use to which land for their con- 
 struction is put be denominated a public use." * 
 
 We again reach contested ground, when we inquire into the 
 power of the government to authorize the exercise of the right 
 of eminent domain in the condemnation of lands for manu- 
 facturing and industrial jiurposes. The question has usually 
 arisen in the request for the condemnation of lands on 
 the banks of a river, for the establishment of some sort of 
 mill run by water power. Before the days of steam, water 
 was the only motive power, and sometimes a whole commu- 
 
 1 See § 121. 
 
 " Cooley on Const. Llm. 660, 661. 
 
 § 1216 
 
PUBLIC PURPOSE, WHAT IS A. 385 
 
 nity would depend for milling facilities upon the caprice or 
 avarice of one or more men. It is true that at present a 
 mill site on the river bank is not so essential to industrial 
 activity, but it is still important on the ground of economy, 
 water power being cheaper than steam. In most ot the 
 States, in which the question has arisen, such appropriations 
 •of land have been sustained as being for the public good, if 
 not for a public use.^ But in New York and other States 
 the power of exercising the right of eminent domain in 
 favor of manufacturing and milling industries is denied.^ 
 In pronouncing the opinion of the Supremo Court 
 of Massachusetts in favor of such an exercise of the 
 right of eminent domain, Shaw, Ch. J., said: "It is 
 then contended that if this act was intended to authorize 
 the defendant company to take the mill power and mill of 
 the plaintiff, it was void because it was not taken for public 
 use, and it was not within the power of the government in 
 the exercise of the. right of eminent domain. This is the 
 main question. In determining it we must look to the de- 
 clared purposes of the act ; and if a public use is declared, 
 it will be so held, unlesa it manifestly appears by the 
 provisions of the act that they can have no tendency to 
 advance and promote such public use. The declared pur- 
 poses are to improve thfe navigation of the Merrimac River 
 
 • Fisher v. Mannfacturing Co., 12 Pick. 67 ; Boston & Eoxbury Mill Co. v. 
 Newman, 12 Pick. 467 ; Olmstead v. Camp, 33 Conn. 532 ; Great Falls Manuf . 
 Co. V. Fernald, 47 N. H. 444; Ashe. Cummlngs, 50 N. H. 591; Jordan v. 
 Woodward, 40 Me. 317; Crenshawu. State Kiver Co., 6 Band. 245; Burgess 
 V. Clark, 13 Ired. 109; Smith v. Connelly, 1 T. B. Mon. 58; Shackleford v. 
 Coffey, J.J. Marsh. 40; Newcome v. Smith, 1 Chand. 71; Thienv. Voe-. 
 gtlander, 3 Wis. 461 ; Pratt ». Brown, S Wis. 603 ; (but see Fisher v. Hor- 
 ricon Co., 10 Wis. 351; Curtis ». Whipple, 24 Wis 350;) Miller v. Troosh, 
 14 Minn. 365; Venard v. Cross, 8 Kan. 248; Harding v. Funk, 8 Kan. 315. 
 
 * Hay V. Cohoes Company, 3 Barb. 47; Ryerson v. Brown, 35 Mich. 333 
 (24 Am. Rep. 564) > Loughbridge v. Harris, 42 Ga. 600; Tyler ». Beacher, 
 44Vt. 648 (8 Am. Rep. 398) ; Saddler ». Laugham, 34 Ala. 311. lathe 
 last two cases, theTight to condemn lands for miU sites was recognized^ 
 provided the mill owners were required to serve the public impartially, 
 
 25 1216 § 
 
386 POLICE EEGULATION OF REAL PROPERTY. 
 
 and to create a large mill power for mechanical and manu- 
 facturing purposes. * * * That the improvement of 
 the navigation of a river is done for the public use, has been 
 too frequently decided and acted upon to require authorities, 
 and so to create a wholly artificial navigation by canals. 
 The establishment of a great mill power for manufacturing 
 purposes, as an object of great interest, especially since 
 manufacturing has come to be one of the great public indus- 
 trials pursuits of the commonwealth, seems to have been re- 
 garded by the legislature and sanctioned by the jurisprudence 
 of the commonwealth, and in our judgment rightly so, in 
 determining what is a public use, justifying the exercise of 
 eminent domain. * * » That the erection of this dam 
 would have a strong and direct tendency to advance both 
 these public objects, there is no doubt." ^ On the same 
 general grounds, in the exercise of the right of eminent 
 domain, lands hsiveibeen appropriated for use as a cemetery.^ 
 A careful reading of the authorities forces one to the con- 
 clusion that the term pubUc\useM either misused or is given 
 a peculiar meaning in the law of eminent domain, very 
 different from what it generally bears in other branches of 
 the law, and this thought is most strongly forced upon us 
 in learning from the cases that thei establishment of a pri- 
 vate mill is such a public use as will justify the exercise of 
 the right of eminent domain in its favor.' * 
 
 1 Hazen v. Essex Company, 12 Cush. 475. 
 
 " Edgecombe v. Burlington, 46 Vt. 118 ; Balch v. Commissioners, 103 
 Mass. 106; Evergreen Cemetery ». New Haven, 43 Conn. 234; Matter of 
 Deansville Cemetery, 66 N. Y. 569. But in the last the power to condemn 
 lands for cemetery purposes was denied to a strictly private corporation. 
 
 2 " Reasoning by analogy from one of the sovereign powers of govern- 
 ment to another is exceedingly liable to deceive and mislead. An object 
 may be public in one sense and for one purpose, when in a general sense 
 and for other purposes it would be idle or misleading- to apply the same 
 term. All governmental powers exist for public purposes, butthey are not 
 necessarily to be exercised under the same conditions of public interest. 
 The sovereign police powerwhich the State exercises is to be exercised only 
 forthe general public welfare, but It reaches to every person, to every 
 
 § 1216 
 
PUBLIC PURPOSE, WHAT IS A. 36? 
 
 Indeed, it would appear more correct to say, that while the 
 term public use was originally employed in the law of emi- 
 nent domain as meaning a use by some governmental 
 agency, the ever increasing complications of modern civ- 
 ivilization have compelled an application of the right of 
 eminent d omain to other than public or governmental uses, 
 and the meaning of the term public use was broadened from 
 
 kind of business, to every species of property within the commonwealth. 
 The conduct of every individual, and the use of all property and of all 
 rights is regulated by it, to any extent found necessary for the preserva- 
 tion of the public order, and also for the protection of the private rights 
 of one individual against encroaclynents by others. The sovereign power 
 of taxation is employed in a great many cases where the power of emi- 
 nent domain might be made more immediately efficient and available, if 
 constitutional principles could suffer it to be resorted to ; but each of these 
 has its own peculiar and appropriate sphere, and the object which is piiblia 
 for the demands of the one is not necessarily of a character to permit the 
 exercise of the other. (That Eminent Domain and Taxation are but spe- 
 cial phases of police power, and not distinct and separate powers of 
 government, see ante, § l.J 
 
 "If we examine the subject critically we shall find that the most im- 
 portant consideration in the case of eminent domain is the necessity of 
 accomplishing some public good which is otherwise impracticable ; and 
 we shall also find that the law does not so much regard the means as the 
 need. The power is much nearer akin to that of the public police than 
 to that of taxation ; it goes but a step further, and that is in the same 
 direction. Every man has an abstract right to the exclusive use of his 
 own property for his own enjoyment in such manner as he shall choose; 
 but if he should choose to create a nuisance upon it, or to do anything- 
 which would preclude a reasonable enjoyment of adjacent property, the 
 law would interfere to impose restraints. He is said to own his private- 
 lot to the center of the earth, but he would not be allowed to excavate it 
 indefinitely, lest his neighbor's lot should disappear in the excavation. 
 The abstract right to make use of his own property in his own way is 
 compelled to yield to the general comfort and protection of the commun- 
 ity, and to a proper regard to relative rights in others. The situation 
 of his property may even be such that he is compelled to dispose of it 
 because the law will not suffer his regular business to be carried on upon 
 it. A needful and lawful species of manufacture may so injuriously 
 affect the health and comfort of the vicinity that it cannot be tolerated 
 in a densely settled neighborhood, and therefore the owner of a lot in 
 that neighborhood will not be allowed to engage in that manufacture 
 upon it, even though it be his regular and legitimate business. » ♦ * 
 
 § 1216 
 
388 POLICE REGULATION OF REAL PEOPEETY. 
 
 time to time in order to cover these new applications of the 
 right, until now the term is synonymous with public good, 
 and justifies the following language of Chancellor Walworth. 
 In defining what is a public use,^ he said: " If the public 
 interest can be in any way promoted by the taking of pri- 
 vate property, it must rest in the wisdom of the legislature 
 to determine, whether the benefit to the public will be of 
 sufficient importance to render it expedient for them to ex- 
 ercise the right of eminent domain, and to authorize an in- 
 terference with the private rights of individuals for that 
 purpose. It is upon this principle that the legislatures of 
 several of the States have authorized the condemnation of 
 lands for mill sites, where from the nature of the coun- 
 try such mill sites could not be obtained for the accommo- 
 dation of the inhabitants, without overflowing the lands thus 
 condemned. Upon the same principle of public benefit, 
 not only the agents of the government, but also individuals 
 and corporate bodies, have been authorized to take private 
 
 Eminent domain only recognizes and enlorces the superior right of the 
 community against the selflshness of individuals in a similar way. Every 
 branch of needful industry has a right to exist, and the community has 
 a right to demand that it be permitted to exist, and if for that purpose 
 a peculiar locality already in possession of an individual is essential, the 
 owner's right to undisturbed occupancy must yield to the superior inter- 
 eat of the public. A railroad cannot go around the farm of every unwill- 
 ing person, and the business of transporting persons and property for 
 long distances by rail, which has been found so essential to the general 
 enjoyment and welfare, could never have existed it it were in the power 
 of any unwilling person to stop the road at his boundary, or to demand 
 unreasonable terms as a condition of passing him. "The law Interferes 
 in these cases, and regulates the relative rights of the owner and of the 
 community with as strict regard to justice and *quity as the circum- 
 stances will permit. It does not deprive the owner of his property, but 
 it compels him to dispose of so much of it as is essential on equitable 
 terms. While, therefore, eminent domain establishes no industry, it so 
 regulates the relative rights of all that no individual shall have it In his 
 power to preclude its establishment." People v. Township Board of 
 Salem, 20 Mich. 452. 
 
 ' BeeJjman v. Schenectady and Saratoga R. E. Co., 3 Paige, 45, 73 (22 
 Am Dec. 679). 
 
 § 1216 
 
PUBLIC PURPOSE, WHAT IS A. 389 
 
 property for the purpose of making public highways, 
 turnpike roads and canals ; of erecting and constructing 
 wharves and basins; of establishing ferries; of draining 
 swamps and marshes, and of bringing water to cities 
 and villages. In all such cases the object of the legislative 
 grant of power is the public benefit derived from the con- 
 templated improvement which is to be effected directly by 
 the agents of the government, or through the medium of 
 corporate bodies, or of individual enterprise." In com- 
 menting upon this language of Chancellor Walworth, Judge 
 Cooley says:^ "It would not be entirely safe, however, 
 to apply with much liberality the language above quoted, 
 that, ' where the public interest can be in any way promoted 
 by the taking of private property,' the taking can be con- 
 sidered for a public use. It is certain that there are 
 very many cases in which the property of some indi- 
 vidual owners would be likely to be better employed or 
 occupied to the advancement of the public interest in other 
 hands than in their own; but it does not follow from this cir- 
 cumstance alone, that they may rightfully be dispossessed. 
 It may be for the public benefit that all the wild lands of 
 the State be improved and cultivated, all the low lands 
 drained, all the unsightly places beautified, all dilapidated 
 buildings replaced by new ; because all these things tend to 
 give an aspect of beauty, thrift, and comfort to the country 
 and thereby to invite settlement, increase the value of lands, 
 and gratify the public taste ; but the common law has never 
 sanctioned an appropriation of property based upon these 
 considerations alone ; and some further element must there- 
 fore be involved before the appropriation can be regarded 
 as sanctioned by our constitutions." It is true that the 
 common law has never sanctioned the condemnation of pri- 
 vate property for all the purposes enumerated by Judge 
 Cooley ; and it is likewise true, that in condemning lands for 
 
 1 Cooley Const. Lim. 660. 
 
 § 1216 
 
390 POLICE EEGULATION OF EEAL PEOPERTr. 
 
 such purposes, it could not, with any proper use of the 
 term, be called a taking for a public use ; but there is 
 nothing in our constitutions which require a taking for a 
 public use. We have, as the sole authority for the re- 
 quirement, the judicial opinion that it is unrepublican to take 
 private property for any but a public use ; but we claim 
 that the courts, at least in later years, meant that private 
 property cannot be taken, except to promote some public 
 good, when they required it to be a taking for a public 
 use. There is, therefore, no constitutional limitation 
 upon the power of the government, to declare an appropri- 
 ation of lands in the possession of private persons for the 
 construction of mills, the improvement of wild lands, the 
 drainage of low lands, and for the promotion of any public 
 benefit, where the avarice or selfishness of the private 
 owner necessitates a condemnation of such lands. It is 
 unquestionably unconstitutional and inconsistent with re- 
 publican principles, for a government arbitrarily to take 
 the property of one man and give it to another, or to do so 
 in any case where the public interest will not thereby be 
 promoted. There is certainly some danger of an arbitrary 
 or unreasonable exercise of the power, since the legislature 
 is the supreme judge of the necessity of the condemnation ; 
 and it may be wise to impose such limitations upon the 
 power of the legislature as will serve as safeguards against 
 arbitrary interferences with private property : but it can- 
 not be said to be unrepublican to require the owners of 
 lands to so use them as will best promote the public wel- 
 fare. It is highly republican in principle to place the public 
 good (res publica) above the selfish interest of the indi- 
 vidual ; and inasmuch as the ultimate property in lands is 
 vested in the State for the common benefit, it is not un- 
 reasonable to claim that all private property in lands is 
 acquired and held, subject to the condition, among others, 
 that it may be reclaimed by the State whenever the public 
 interests demand it. There is nothing fundamentally 
 § 1216 
 
WHAT PROPEETY MAY BE TAKEN. 391 
 
 unjust in such a principle, although it may easily be made 
 "the cover for some arbitrary and iniquitous transactions. 
 During the present year, (1886) a bill was proposed by the 
 English cabinet to make a forced purchase of the lands of 
 Irish landlords, and to divide up the land into small hold- 
 ings, and sell the same to the Irish tenantry on easy terms. 
 The object of the bill was to remedy the agrarian evil, 
 which at some time in its history troubles every thickly 
 settled community ; and while it was vigorously and suc- 
 cessfully opposed, the objections to its passage were 
 economical and not constitutional. In a less justifiable 
 oase, the Prussian landtag, at the instance of Prince Bis- 
 marck, has expropriated the lands of the hostile Polish 
 population of Posen, in order to provide for a German set- 
 tlement. Any taking of land from one man and giving it 
 to another in this country, would at the present day be un- 
 justifiable, because land is not yet scarce enough ; or, more 
 correctly stated, the population is not yet large enough to 
 make expropriation of lands a public necessity. But if a 
 similar state of affairs were to arise in one of the American 
 States as exists in Ireland to-day, and the public order and 
 peace was daily and hourly threatened by the lack of small 
 laud holdings, and the exactions of absentee landlords ; if 
 the quiet and order of prosperous times could be restored 
 by an expropriation of the land of large land owners, it 
 would be eminently republican for the State to do so, 
 taking care that the expropriation does not extend beyond 
 the public necessity. If the land owner is rendering his 
 equivalent to society for his ownership of the lands, there 
 will be no agrarian evil ; and he is not entitled, as against the 
 superior demands of society, to the imearned increment, 
 where he does not add to it by the expenditure of capital or 
 labor. 
 
 § 121c. What property may be taken. — Every spo- 
 res of real property may be taken in the exercise of the 
 
 § 121c 
 
392 POLICE EEGULATION OF KEAL PROPERTY. 
 
 right of eminent domain. Not only the land itself may be- 
 taken, but also anything which may actually, or in legal 
 contemplation, be considered a part of the land : All build- 
 ings and other structures that may be in the way of the 
 public use of the condemned lands ; ^ the streams of water,* 
 the stone, gravel and wood that may be needed for the 
 promotion of the public improvement,' apart from the land 
 itself. An easement may be acquired over the land, while 
 the land remained private property, and so also may fran- 
 chises be condemned.* But in all cases no more of the 
 property can be taken than is necessary to serve the public 
 purpose for which it is condemned. No other considerations 
 will justify the taking of the whole of a man's property, 
 when only apart is needed, and the excessive appropriation, 
 must under all circumstances be held to be unconstitu- 
 tional. This limitation is best explained by a reference 
 to the facts of a case, which arose in the State of New 
 
 1 Wells v. Somerset, etc., R. E. Co., 47 Me. 345. 
 
 2 Gardner ii. Newburg, 2 Johns. Ch. 162 (7 Am. Dec. 526); Johnson ». 
 Atlantic, etc., K. K. Co., 35 N. H. 669; Baltimore, etc., E. E. Co. v. Ma- 
 gruder, 35 Md. 79 (6 Am. Eep. 310). 
 
 3 Jerome v. Eoss, 7 Johns. Ch. 315 (11 Am. Dec. 484; ; Wheelock v. 
 Young, 4 Wend. 647; Lyon ?;. Jerome, 15 Wend. 669; Bliss v. Hosmer, 
 16 Ohio, 44; Watkins v. Walker Co., 18 Texas, 685. 
 
 ■* West Eiver Bridge v. Dlx, 6 How. 607; Eichmond R. E. Co. ». Lonisa. 
 E. E. Co., 13 How. 71; State v. Noyes, 47 Me. 189; Armington v. Barnet, 
 15 Vt. 745; White Eiver Turnpike Co. i>. Vt. Cent. E. E. Co., 21 Vt. 690; 
 Pistaque Bridge Co. v. New Hampshire Bridge, 7 N. H. 35 ; Boston Water 
 Power Co. v. Boston, etc., E. E. Co., 23 Pick. 360; Central Bridge Co. v. 
 Lowell, 4 Gray 474; In re Rochester Water Commissioners, 66 N. T. 413; 
 Commonwealth v. Pa. Canal Co., 66 Pa. St 41 ("5 Am. Eep. 829) ; inreTow- 
 anda Bridge, 91 Pa. St. 216; Tuckahoe Canal Co. ■». E. E. Co., 11 Leigh 
 42 (36 Am. Dec. 374) ; Chesapeake, etc., Canal Co. v. Baltimore, etc., R. 
 R. Co., 4 Gill & J. 6 ! No. Ca., etc., R. R. Co. v. Carolina Cent., etc., R. R. 
 Co., 83 N. C. 489; New Orleans, etc., E. R. Co. v. Southern, etc., Tel. 
 Co., 63 Ala. 211 ; Little Miamia, act., R. R. Co. v. Darton, 23 Ohio St. 
 610; New Castle, etc., R. E. Co. v. Peru, etc., E. E. Co., 3 Ind. 464; Lake 
 Shore, etc., E. R. Co. ». Chicago, etc., E. E. Co, 97 HI. 506; Central 
 City Horse Railway Co. v. Fort Clark, ect., R'y Co., 87 111. 523, 
 § 121c 
 
WHAT PROPERTY MAY BE TAKEN. 393 
 
 York.* By a statute, municipal corporations were author- 
 ized, in condemning a part of a city lot for the purpose of 
 extending or widening the streets, to appropriate the whole, 
 if it was deemed advisable, and to sell or otherwis e dispose 
 of the part not needed for the improvement of the street. 
 The statute was pronounced unconstitutional. In deliver- 
 ing the opinion of the court, the Chief Justice, Savage, 
 said: "If this provision was intended merely to give to 
 the corporation capacity to take property under such cir- 
 cumstances with consent of the owner, and then to dispose 
 of the same, there can be no objection to it ; but if it is to 
 be taken literally, that the commissioners may, against the 
 consent of the owner, take the whole lot, when only a part 
 is required for public use, and the residue to be applied to 
 private use, it assumes a power which, with all respect, the 
 legislature did not possess. The constitution, by author- 
 izing the appropriation of private property to public use, 
 impliedly declares that for any other use private property 
 shall not be taken from one and applied to the private use 
 of another. It is in violation of natural right ; and if it is 
 not in violation of the letter of the constitution, it is of its 
 spirit, and cannot be supported. This power has been sup- 
 posed to be convenient when the greater part of a lot is 
 taken, and only a small part left, not required for public 
 use, and that small part of but little value in the hands of 
 the owner. In such case the corporation has been sup- 
 posed best qualified to take and dispose of such parcels, or 
 gores, as they have sometimes been called; and probably 
 this assumption of power has been acquiesced in by the 
 proprietors. I know of no case where the power has been 
 questioned, and where it has received the deliberate sanc- 
 tion of this court. Suppose a case where only a few feet, or 
 even inches, are wanted, from one end of a lot to widen a 
 street, and a valuable building stands upon the other end 
 
 > Matter of Albany St., 11 Wend. 151 (25 Am. Dec. 618). 
 
 § 121c 
 
394 POLICE REGULATION OF SEAL PROPERTY. 
 
 of such lot ; would the power be conceded to exist to take 
 the whole lot, whether the owner consented or not? The 
 quantity of the residue of any lot cannot vary the principle. 
 The owner may be very unwilling to part with only a few 
 feet ; and I hold it equally inconapetent for the legislature 
 thus to dispose of private property, whether feet or acres 
 are the subject of this assumed power." ^ It has also been 
 held, that in establishing a public improvement, it is the 
 duty of those who are exercising the right of eminent do- 
 main to avoid as much as possible the diversion of streams, 
 and to construct whatever culverts and bridges may be 
 necessary to keep the streams in their regular channels.^ 
 
 Another application of the same principle would lead to 
 the conclusion, that where the fee simple estate in the land 
 was not needed, only a less estate or an easement should be 
 taken ; and that the taking of the fee under such circum- 
 stances would be an unlawful appropriation. In the ab- 
 sence of statutory regulations to the contrary, it is certainly 
 a conclusive presumption, that where less than a fee is 
 needed for the public use, and a Joint occupation of the 
 land by the public and by the private individual was possi- 
 ble as in the case of a highway, the fee is not taken for the 
 public use, and if there should be at any time a discontinu- 
 ance of the public use, the land would be relieved of the 
 public easement, and become again the absolute property^ 
 of the original owner.' But in some of the States, it is 
 
 1 See to the same effect, Dunn v. City Council, Harp. 129 ; Baltimore, 
 etc., K. E. Co. ». Pittsburg, etc., E. E. Co., 17 W. Va. 812 ; Paul v. Detroit, 
 32 Mich. 108. In Embury v. Conner, 3 N. Y. 511, It was held that this 
 excessive appropriation of land beyond what is needed for the public use 
 was permissible, provided it was not done against the consent of the 
 owner. 
 
 ^ See Proprietors, etc. v. Nashua E. B. Co., 10 Cush. 388; March v. 
 Portsmouth, etc., R. E. Co., 19 N. H. 372; Eowe i;. Addison, 34 N. H. 
 306; Haynes v. Burlington, 38 Vt. 350; Boughton*. Carter, 18 Johns. 
 405; Stein v. Burden, 24 Ala. 130; Pettlgrew i>. Bvansville, 26 Wis. 223; 
 Arimond v. Green Bay Co., 31 Wis. 316. 
 
 'Bust D.Lowe, 6 Mass. 90; Barclay v. Howell's Lessee, 6 Pet. 498; 
 § 121c 
 
WHAT PROPERTY MAY BE TAKEN. 395 
 
 HOW provided by the statute that in appropriation of lands 
 for highways, the fee shall be held to be condemned, and not 
 simply a public easement acquired.' And it would seem 
 plausible that in the case of an ordinary highway the fee 
 might be needed for use as a highway, since the demands of 
 modern civilizatio n require the soil of the streets of a city to 
 contain imbedded in it the gas, water and sewer pipes, the 
 telephone, telegraph, and electric light wires, etc., as well as 
 to be used as a highway, thus rendering a joint occupation 
 of the land by the public and the private owner impossible. 
 It is by no means unreasonable, therefore, to provide for 
 the condemnation of the fee in the beginning, instead of 
 allowing successive condemnations of the soil, as the pub- 
 lic demands each particular use to which it can be put. But 
 it is hard to see the reason why in the condemnations of 
 land, for other purposes, for railroad purposes, for ex- 
 ample, the fee should be taken ; and unless the necessity of 
 "taking the fee is proven, the taking would be an unlawful 
 ■condemnation of private property." But if the fee is nec- 
 essary, the taking of the fee for any purpose is lawful ; and 
 it seems to be the prevailing opinion that the question, 
 
 "Weston o. Foster, 7 Met. 297; Deani;. Sullivan R. E. Co., 22 N. H. 316; 
 Blake v. Rich, 34 N. H. 282 ; Jackson v. Rutland, etc., E. R. Co., 25 Vt. 
 150; Giesy v. Cincinnati, etc., R. R. Co., <t Ohio St. 308; Jackson v. Hath- 
 away, 15 Johns. 447; Henry v. Dubuque & Pacific E. E. Co., 2 Iowa, 288; 
 Elliott V. Fair Haven etc., R. R. Co., 32 Conn. 679, 686; Imlay v. Union 
 Branch R.R. Co., 26 Conn. 249; State v. Laverack, 34 N. J. 201; Rail- 
 road Co. V. Shurmeir, 7 Wall. 272. 
 
 1 People V. Kerr, 37 Barb. 357; s. c. 27 N. Y. 188; Brooklyn Central, 
 etc., R. R. Co. V. Brooklyn City E. R. Co., 33 Barb. 420; Brooklyn & New- 
 ton R. R. Co. V. Coney Island E. R. Co., 35 Barb. 364; Protzman v. 
 Indianapolis, etc., R. R. Co., 9 Ind. 467; New Albany & Salem R. R. Co. 
 ■V. O'Dailey, 13 Ind. 353 ; Street Railway v. Cummingsville, 14 Ohio St. 523 ; 
 State V. Cincinnati Gas Co., 18 Ohio St. 262 ; Millburn v. Cedar Eapids, 
 etc., E. E. Co., 12 Iowa, 246; Franz v. Eailroad Co., 65 Iowa, 107; Moses 
 V. Pittsburg, etc., E. E., 21 111. 516. 
 
 ^ New Orleans, etc., E. E. Co. v. Gay, 32 La. Ann. 471. In Illinois the 
 condemnation ot the fee for railroad purposes is expressly forbidden. 
 Const. 111. 1870, art. 2, § 13. 
 
 § 121c 
 
396 POLICE REGULATION OF REAL PROPERTY. 
 
 whether it is necessay is a legislative, and not a judicial one. 
 The declaration of the legislature, that the fee is necessary, 
 is, therefore, final and conclusive.^ 
 
 But while the appropriation of land, in the exercise of the 
 right of eminent domain, must be confined to the necessity; 
 on the other hand, that amount may be appropriated, notonly 
 wbat is directly necessary for the public use, but also what- 
 ever is incidentally needed, such as the workshops and depots 
 of railroads.^ But the appropriation of lands for such inci- 
 dental purposes must fall within a fair construction of the 
 grant of power by the legislature, in order to be allowable j 
 for the power to make such an appropriation cannot be jus- 
 tified by a consideration of its convenience or appropriate- 
 ness, if it is not expressly conferred. Thus it was held that 
 where a railroad company was granted the power *' to enter 
 
 1 In Hayward v. Mayor, etc., of New York, 7 N. Y. 314, 325, it is said 
 that the power of deciding upon the need of the fee, " must of necessity 
 rest in the legislature, in order to secure the useful exercise and enjoy- 
 ment of the right in question. A case might arise where a temporary use 
 ■would be all that the public interest required. Another case might re- 
 quire the permanent, and apparently the perpetual, occupation and enjoy- 
 ment of the property by the public, and the right to take it must be 
 co-extensive with the necessity of the case, and the measure of compen- 
 sation should, of course, be graduated by the nature and the duration of 
 the estate or interest of which the owner is deprived." In this case the 
 the land was appropriated for the purpose of extending the almshouse. 
 See, also, Brooklyn Park Commissioners v. Armstrong, 45 N. Y. 234 (9 
 Am. Rep. 70) ; Dingley v. Boston, 100 Mass. 644 ; Baker o. Johnson, 2 Hill, 
 343 ; Munger v. Tonawanda R. R. Co., 4 N. Y. 349; Rexford v. Knight, 11 
 N. Y. 308; Coster u. N. J. R. R. Co., 22 N. J. 227; Plitt v. Cox, 43 Pa. St. 
 486; Water Works Co. v. Burkhart, 41 Ind. 364. 
 
 2 N. Y. & Harlem R. R. Co. v. Kip, 46 N. Y. 646 (7 Am. Rep. 386) ; 
 Chicago, etc., R. R. Co. v. Wilson, 17 111. 123; Low v. Galena, etc., 
 R. R. Co., 18 111. 324; Giesy v. Cincinnati, etc., R. R. Co., 4 Ohio St. 
 308. In Eldridge c. Smith, 34 Vt. 484, it vas held that the erection 
 of buildings for the manufacture of cars, or for leasing to the em- 
 ployes of the road, was not so necessary to the conduct and man- 
 agement of a railroad, as to justify the condemnation of lands for such 
 purposes. But it was held competent for the railroad company to appro- 
 priate lands for piling wood and lumber used in the construction and 
 conduct of the road. 
 
 § 121c 
 
WHAT CONSTITUTES A TAKING. 397 
 
 upon any land to survey, lay down and construct its road," 
 "to locate and construct branch roads," etc. ,to take land 
 *' for necessary side tracks," and " a right of way over 
 adjacent lands sufficient to enable such company to con- 
 struct and repair the road," it was not authorized, after it 
 had located the road, and was constructing its main road 
 along the north side of a town, to appropriate a temporary 
 right of way for a terra of years along the south side, which 
 was to be used while the main road was being built.^ 
 
 § 12ld. What constitutes a taking. — In order to lay the 
 foundation of a claim for compensation for the taking of prop- 
 erty in the exercise of the right of eminent domain, it is not 
 necessary that there should be an actual or physical taking of 
 the laud. Whenever the use of the land is restricted in any 
 way, or some incorporeal hereditament is taken away, which 
 was appurtenant thereto, it constituted as much a tiiking as if 
 the land itself had been appropriated.^ The flowing of 
 lands, ^ the diversion of streams,* the appropriation of 
 water fronts, on streams where the tide does not ebb and 
 flow," and, likewise, in navigable streams, the condemnation 
 of an exclusive wharfage,* are only a few instances of the 
 
 ^ Cnrrier v. Marietta, etc., R. E. Co., 10 Ohio St. 121. 
 
 2 Pampelly v. Green Bay, etc., Co., 13 Wall. 166; Hooker v. New 
 Haven, etc., B. R. Co., 14 Conn. 146; Eaton v. Boston, C. & M. B. R. Co., 
 61 N. H. 504; Glover v. Powell, 10 N. J. Eq. 211 ; Ashley ,;. Port Huron, 
 35 Mich. 296; Arimond v. Green Bay, etc., Co., 31 Wis. 316. 
 
 ' Grand Rapids Booming Co. v. Jarvis, 30 Mich. 308 ; Eaton v. Boston, 
 etc.,R. R. Co., 51 N. H. 604; Brown v. Cayuga, etc., R. R. Co., 12 N. V. 
 486; Norris «. Vt. Cent. R. E. Co., 26 Vt. 99. 
 
 * Harding v. Stanford Water Co., 41 Conn. 87; Proprietors, etc., v. 
 Nashua & Lowell R. R. Co., 10 Cash. 388 ; March v. Portsmouth, etc., R. 
 R. Co., 19 N. H. 372 ; Rome v. Addison, 34 N. H. 306 ; Johnson v. Atlantic, 
 etc., R. R. Co., 35 N. H. 669; Haynes v. Burlington, 38 Vt, 360; Bough- 
 ton P.Carter, 18 Johns. 405; Baltimore, etc., R. R. Co. o. Magender, 34 
 Md. 79 (6 Am. Rep. 310); Stein ». Burden, 24 Ala. 130; Pettigrew ». 
 Evansville, 25 Wis. 223. 
 
 * Varick v. Smith, 9 Paige, 647. 
 ° Murray v. Sharp, 1 Bosw. 639. 
 
 § 121c? 
 
398 POLICE EEGDLATION OF REAL PROPERTY. 
 
 exercise of the right of eminent domain, in which the prop- 
 erty taken is incorporeal. In respect to the appropriation 
 of water fronts, according to the older authorities, if the 
 stream was a navigable one, that is, one in which the tide 
 ebbed and flowed, and the title to the bed of which was in 
 the State, the appropriation to public uses of the water front 
 was held not to involve any taking of property for which 
 compensation had to be made ;^ and this has also been held 
 to be the rule in reference to those fresh water streams, which 
 are practically navigable, and the title to whose beds is in 
 the state.' But these cases have not been followed by later 
 adjudications, so far as they assert the right to take away 
 from the riparian proprietor all access to the navigable 
 stream by and over his land. This right of access to the 
 stream is declared to bean incorporeal hereditament, appur- 
 tenant to the abutting land, which cannot be taken away 
 without proper compensation.^ 
 
 The diversion of navigable streams is also a taking of 
 property, for which compensation must be made to the 
 riparian owner. Although the riparian owner has no prop- 
 erty in the water, or in the bed of the stream, he has a 
 right to make a reasonable use of it, and since a diversion 
 of the stream will interfere with the reasonable use, per- 
 haps deprive him altogether of its use, compensation must 
 be made to him for this loss, as being a taking of property.* 
 
 It frequently happens in the experience of municipal life 
 
 1 Gould V. Hu.dson River R. E. Co., 6 N. T. 522 ; Pennsylvania E. E. Co. 
 V. N. y., etc., R. R. Co., 23 N. J. Eq. 167; Stevens v. Paterson, etc., E. 
 R. Co.,34N. J. 532. 
 
 2 Tomlln V. Dubuque, etc., E. E. Co., 32 Iowa, 106 (7 Am. Rep. 176). 
 
 2 Riilway v. Eenwlck, 102 TJ. S. 180; Ya-tes ti. Milwaukee, 10 Wall. 497; 
 Chicago, etc., R. R. Co. v. Stein, 75 111. 41. As to rights of property in 
 highways, see post. 
 
 ^People V Canal Appraisers, 13 Wend. 355; Gardner o. Newburg, 2 
 Johns. Ch.l62; Bellinger ». N. Y. Central R. R. Co., 23 N. y.42; Morgan 
 V. King, 35 N. Y. 454 ; Hatch t>. Vermont Cent. R. R. Co., 25 Vt. 49 ; Thun- 
 der Bay, etc., Co. u. Speechly,31 Mich. 332; Emporia v. Soden, 25 Kan. 688 
 (37 Am. Rep. 265J. 
 § ]2W 
 
WHAT CONSTITUTES A TAKING. 399 
 
 that in order to prevent an accidental fire from becoming a 
 general conflagration, one or more houses which stand in 
 the path of the fire will be destroyed by means of explo- 
 sions or otherwise, in order to check it. It is never done, 
 except in cases where the destroyed houses would have 
 inevitably been consumed by the fire. The owners of these 
 houses, therefore, have not suffered any loss by their de- 
 struction ; and on this ground, and on the plea of over- 
 ruling necessity, such destruction of buildings have been 
 held not to be an appropriation under the right of eminent 
 domain, and no claim for compensation can be made by the 
 owners. And where a municipal officer orders the destruc- 
 tion, the municipal corporation is not liable for damages, in 
 the absence of a statute to that effect.* 
 
 But the consequential or incidental injury to property, 
 resulting from the lawful exercise of an independent right, 
 is never held to be a taking of property in the constitu- 
 tional sense, where the enjoyment of the right or privilege 
 does not involve an actual interference or disturbance of 
 property rights. "In the absence of all statutory provis- 
 ions to that effect, no case, and certainly no principle, seems 
 to justify the subjecting a person, natural or artificial, in 
 the prudent pursuit of his own lawful business, to the pay- 
 ment of consequential damage to others in their property 
 or business. This always happens more or less in all rival 
 pursuits, and often where there is nothiiig of that kind. 
 One mill or one store or school injures another. One'» 
 dwelling is undermined, or its lights darkened, or its pros- 
 pect obscured, and thus materially lessened in value by the 
 erection of other buildings upon lands of other proprietors. 
 
 1 Taylor v. Plymouth, 8 Met. 462- Euggles v. Nantucket, 11 Cush. 433; 
 Stone V. Mayor, etc., of N. Y., 25 Wend. 157; Russell d. Mayor, etc., of N. 
 Y., 2 Denio, 461 ; American Printworks v. Lawrence, 21 N. J. 248 ; Amer- 
 can Print Works v. Lawrence, 23 N. J. 690 ; White v. Charleston, 1 Hill 
 (s.c.) 571; Keller «. Corpus Christi, 50 Texas 614 (82 Am. Rep. 513); Con- 
 well V. Emrie,2 Ind. 35; Field v. Des Moines, 39 Iowa, 575; McDonald v. 
 Redwing, 13 Minn. 38; Sirocco v. Geary, 3 Cal. 69. 
 
 § 12ld 
 
400 POLICE REGULATION OP REAL PROPERTI. 
 
 One is beset with noise or dust or other inconvenience by 
 th e alteration of a street, or more especially by the intro- 
 duction of a railway, but there is no redress in any of 
 these cases. The thing is lawful in the railroad as much as 
 in the other cases supposed. These public works came too 
 near some and too remote from others. They benefit many 
 and injure some. It is not possible to equalize the advan- 
 tages and disadvantages. It is so with everything, and 
 always will be. Those most skilled in these matters, even 
 empirics of the most sanguine pretensions, soon find their 
 philosophy at fault in all attempts at equalizing the ills of 
 life. The advantages and disadvantages of a single railway 
 could not be satisfactorily balanced by all of the courts in 
 forty years ; hence they would be left, as all other conse- 
 quential damage and gain are left, to balance and counter- 
 balance themselves as they best can."^ Thus there is no 
 taking of property, if the owner of a fishery finds it re- 
 duced in value in consequence of improvement in the nav- 
 igation of the river,^ or a spring is destroyed, or other 
 damage done to riparian land by the same or similar 
 causes,* or when the value of adjoining property is 
 
 1 Hatch V. Vt. Central R. R. Co., 26 Vt. 49 ; Richardson «. Vermont Cent. 
 R. R. Co., 25 Vt. 465; Railroad Company v. Richmond, 96 U. S. 621 ; 
 Davidson v. Boston & Maine R. R. Co., 3 Cush. 91 ; Kennett's Petition, 24 
 N. H. 135 ; Hooker v. New Haven, etc, R. R. Co., 14 Conn. 146 ; Gould v. . 
 Hudson River R. R. Co., 6 N. Y. 522; People ». Kerr, 27N.Y 188; 
 Zimmerman v. Union Canal Co., 1 Watts & S. 846; Monongahela Naviga- 
 tion Co. V. Coons, 6 Watts & S. 101; Shrunk r. Schuylkill Navigation. 
 Co., 14 Serg. & R. 71; Harvey v. Lackawanna, etc., R. R. Co., 47 Pa. 
 St. 428; Tinicum Mshing Co. v. Carter, 61 Pa. St. 21 ; Puller v. Edings, 11 
 Rich. L. 239; Edings «. Seabrook, 12 Rich. L. 504; Alexander ». Milwau- 
 kee, 16 Wis. 247; Murray v. Menefee,20 Ark. 561. 
 
 2 Shrunk v. Schuylkill Navigation Co., 14 Serg. & R. 71. See Parker 
 V. Milldam Co., 20 Me. 36d (37 Am. Dec. 56) ; Commonwealth v. Chapin, 
 5 Pick. 199 (16 Am. Dec. 386); Commonwealth ». Look, 108 Mass. 462; 
 Carson v. Blazer, 2 Binn. 476 (4 Am. Dec. 463). 
 
 ' Commonwealths. Richter, 1 Pa. St. 467, Green v. Swift, 47Cal. 536; 
 Brown v. Cayuga, etc., R. K. Co., 12 N, Y. 486 ; Davlisoa o. Boston & 
 
 § 121d 
 
WHAT CONSTITUTES A TAKING. 401 
 
 ■affected by a change in the grade of the street.^ 
 In reference to this matter, Mr. Justice Miller has said ^ 
 that the decisions, which have denied the right of compen- 
 sation " for the consequential injury to the property of an 
 individual from the prosecution of improvement of roads, 
 streets, rivers, and other highways," " have gone to the 
 extreme and limit of sound judicial construction in favor 
 of this principle, and in some cases beyond it; and it re- 
 mains true that where real estate is actually invaded by 
 superinduced additions of water, earth, sand, or other ma- 
 terial, or by having any artificial structure placed on it, so 
 as effectually to destroy or impair its usefulness, it is a 
 taking within the meaning of the constitution." The 
 greatest difficulty has been experienced in applying these 
 principles to the police regulations of the highways or pub- 
 lic streets, in consequence of the variety of uses to which 
 
 Maine R. E. Co., 3 Cush. 91 ; Sprague v. Worcester, 13 Gray, 193; Trans- 
 portation Co. V. Chicago, 99 U. S. 635. 
 
 ^ Gozzler v. Georgetown, ewtieat. 593; Smith v. Washington, 20 How. 
 (U. S.) 135; Callendar o. Marsh, 1 Pick. 418; Bender ». Nashua, 17 N. H. 
 477; Skinner -o. Hartford Bridge Co., 29 Conn. 523; Green i7. Reading, 9 
 Watts, 382; O'Connor v. Pittsburg, 18 Pa. St. 187; In re Ridge Street, 29 
 Pa. St. 391; Matter of Furman Street, 17 Wend. 649; Wilsons. Mayor, etc., 
 •of New York, 1 Denio, 595; Graves v. Otis, 2 Hill, 466; Radclifte's Ex'rs 
 V. Mayor, etc., Brooklyn,'4 N. Y. 195 ; Pontiac v. Carter, 32 Mich. 164 ; La- 
 fayette V. Bush, 19 Ind. 326 ; Macy v. Indianapolis, 17 Ind. 267 ; Vincennes 
 V. Richards, 23 Ind. 381 ; Roberts v. Chicago, 26 111. 249 ; Murphy v. Chi- 
 cago, 29 111. 279 ; Creal v. Keokuk, 4 Greene (Iowa) 47. But see, contra, 
 Atlanta v. Green, 67 Ga. 386; Johnson v. City of Parkersburg, 16 W. Va. 
 402 (37 Am. Rep. 779) ; McComb v. Akron, 15 Ohio, 474 (18 Ohio, 229) ; 
 Crawford v. Delaware, 7 Ohio St. 459. In the last two cases it is held 
 that when the grade of streets is first established, the consequential injury 
 to adjoining property does not constitute a taking of property ; but when 
 the grade has once been establistfed, and the adjoining property improved 
 with reference to the existing grade, a change in grade, causing damage, 
 "would give rise to a claim for compensation. In O'Brien v. St. Paul, 25 
 Minn. 381, it Is held that If the change in the grade of a street deprives 
 the abutting land of its lateral support, it is a taking of property in the 
 «xercise of the right of eminent domain. 
 
 * Pumpelly v. Green Bay, etc., Co., 13 Wall. 166, 180. 
 
 26 § 121rf 
 
402 POLICE REGULATION OF REAL PROPERTY. 
 
 the demands of modern life require them to be put. It has 
 already been explained that, in most of the cities and vil- 
 lage communities of this country, the public have only an 
 easement of a right of way over the land used as a road, 
 while the title to the soil remained in the owners, subject 
 to the public easement. But in some of the States (notably 
 New York and Indiana ) , it is provided by statute that the 
 fee of land appropriated for highway purposes shall always 
 be vested in the State.* It is clear that any appropriation 
 of the highway to other purposes, which would be incon- 
 sistent with, or different from, its use as a street, would be 
 a taking of the private property of the abutting owner, 
 where the soil remained his property subject to the public 
 easement.'^ But it is not so clear whether such an appro- 
 priation of the highway would require the payment of com- 
 pensation to the abutting owners, in cases where the fee of 
 the road is i-n the State. If any right of property has been 
 invaded in making the appropriation, compensation must 
 be made, otherwise not. It has been very generally held 
 that the proprietors of adjoining property have, as an ease- 
 ment over the land used as a highway, the right to the free 
 and unobstructed use of the street, and any interference with 
 such use was a taking of property, for which compensation 
 had to be made.* In New York, where the fee of the 
 
 1 See ante, § 121c. 
 
 ' All the cases cited post, in connection with the discussion of the 
 right of the State to authorize the construction of horse and steam 
 railways on the highways, support this general proposition. They only 
 di&er as to whether the running of these railways is inconsistent with 
 the use of the land as a highway. 
 
 ' Haynes v. Thomas, 7 Ind. 38; Frotzman v. Indianapolis, etc., E. E. 
 Co., 9 Ind. 467; New Albany & Salem R. E. Co. v. O'DaUy, 13 Ind. 453; 
 Indianapolis E. K. Co. v. Smith, 52 Ind. 428; Crawford v. Delaware, 7 
 Ohio St. 459 ; Street Railway v. Cummingsville, 14 Ohio St. 623 ; State v. 
 Cincinnati Gas, etc., Co., 18 Ohio St. 262; Grand Rapids, etc., R. E. Co. v. 
 Heisel, 38 Mich. 62 (31 Am. Eep. SOB) ; Peking. Winkel, 77 111. 56; Lack- 
 land V. North Missouri E. R. Co., 31 Mo. 180; Green v. Portland, 32 Me.. 
 431; Brown v. Duplessis, 14 La. Ann. 842. But see, contra, MUlburn v. 
 i 121d 
 
WHAT CONSTITUTES A TAKING. 403 
 
 streets is in the State, the earlier cases seemed to deny to 
 the abutting land owner any right of property in the street, 
 as a highway, which would be invaded by a different appro- 
 priation of the land.^ But in a late case,^ it has been held, 
 not only that the abutting land owner has, as appurtenant 
 to his land, an incorporeal right of property in the free and 
 unrestricted use of the street or highway, but also a right 
 to the free passage of light and air over the land used as a 
 street, and any interference with either right would consti- 
 tute a taking of property, for which compensation must be 
 made. Judge Danforth said , in delivering the opinion of 
 the court, that the land in question was " conceded to be a 
 public street. But besides the right of passage, which the 
 grantee as one of the public, acquired, he gained certain 
 other rights as purchaser of the lot, and became entitled to 
 all the advantages which attached to it. The official sur- 
 vey — its filing in a public office — the conveyance by deed 
 referring to that survey and containing a covenant for the 
 construction of the street and its maintenance, make as to 
 him and the lot purchased a dedication of it to the use for 
 which it was constructed. The value of the lot was en- 
 hanced thereby and it is to be presumed that the grantee 
 paid, and the grantor received an enlarged price by reason 
 of this added value. There was thus secured to the plaintiff 
 the right and privilege of having the street forever kept 
 open as such. For that purpose, no special or express 
 grant was necessary; the dedication, the sale in reference 
 to it, the conveyance of the abutting lot with its appurte- 
 nances, and the consideration paid were of themselves suf- 
 
 Cedar Eapids, etc., K. E. Co., 12 Iowa, 246 ; Franzo. Eailroad Co., 65 Iowa, 
 
 107. „ . T • ,.= 
 
 1 People©. Kerr, 37 Barb. 367; s. c. 27 N. Y. 188; Ferring v. Irwm, 55 
 N. Y. 486; Kellinger «. Forty Second St., etc., K. R. Co., 50 N. Y. 206; 
 Broofelyn Park Commissioners v. Armstrong, 45 N. Y. 234 (6 Am. Eep. 
 70) i Costers. Mayor, etc. 43 N. Y. 399. 
 
 2 Story V. New York Elevated E. E. Co., 90 N. Y. 122, 145, 146. 
 
 § 121c? 
 
404 POLICE EEGULATION OF REAL PEOPEETT. 
 
 ficient.^ The right thus secured was an incorporeal here- 
 ditament; it became at once appurtenant to the lot, and 
 formed ' an integral part of the estate ' in it. It follows 
 the estate and constitutes a perpetual incumbrance upon 
 the land burdened with it. From the moment it attached, 
 the lot became the dominant, and the open way or street 
 the servient tenement.^ Nor does it matter that the acts 
 constituting such dedication are those of a municipality. 
 The State even, under similar circumstances, would be 
 bound, and so it was held in the City of Oswego v. Oswego 
 Canal Co. : ® ' In laying out the village plot,' says the court, 
 ' and in selling the building lots, the State acted as the 
 owner and proprietor of the land ; and the effect of the 
 survey and sale, in reference to the streets laid down on the 
 map, was the same as if the survey and sale had been made 
 by a single individual.' * Lesser corporations can claim no 
 other immunity, and all are bound upon the principle that 
 to retract the promise implied by such conduct, and upon 
 which the purchaser acted, would disappoint his just expect- 
 ation . 
 
 "But what is the extent of this easement? what rights 
 or privileges are secured thereby ? Generally it may be said, 
 it is to have the street kept open, so that from it access may 
 be had to the lot, and light and air furnished across the 
 
 1 Citing Wyman v. Mayor of N. Y., 11 Wend. iST; Trustees of Water- 
 town V. Cowen, 4 Paige, 510. 
 
 2 Citing Cliild v. Chappell, 9 N. T. 246; Hills v. MiUer, 3 Paige, 266; 
 Trustees of Watertown v. Cowen, 4 Paige, 514. 
 
 8 6 N. Y. 257. 
 
 * It is a fact, at least in the more modern of our cities, that the pub- 
 lic streets were originally indirect dedications by the owner to the public, 
 by laying out a plat, and selling lots, bounded by certain streets, set forth 
 in the plat. The sale of the lots imposed upon the land, over which the 
 street was laid out, at least as against the owner of the land, an ease- 
 ment that the land shall be forever kept open as a street for the use of the 
 lot owners. And the subsequent acceptance by the public of the street 
 so dedicated can certainly make no change, in this regard, in the rights of 
 the lot owners. 
 § Uld 
 
WHAT CONSTITUTES A TAKING. 405 
 
 open way. The street occupies the surface, and to its uses 
 the rights of the adjacent lots are subordinate, but above 
 the surface there can be no lawful obstruction to the access 
 of light and air, to the detriment of the abutting owner. 
 To hold otherwise would enable the city to derogate from its 
 own grant, and violate the arrangement on the faith of 
 which the lot was purchased. This, in effect, was an agree- 
 ment, that if the grantee would buy the lot abutting on the 
 street, he might have the use of light and air over the open 
 space designated as a street. In this case, it is found by 
 the trial court, in substance, that the structure proposed by 
 the defendant,^ and intended for the street opposite to the 
 plaintiff's premises, would cause an actual diminution of 
 light, depreciate the value of the plaintiff's warehouse and 
 thus work to his injury. In doing this thing, the defendant 
 will take his property as much as if it took the tenement 
 itself. Without air and light, it would be of little value. 
 Its profitable management is secured by adjusting it in 
 reference to the right obtained by his grantor over the 
 adjoining property. The elements of light and air ai'eboth 
 to be derived from the space over the land, on the surface 
 of which the street is constructed, and which is made 
 servient for that purpose. He therefore has an interest in 
 that land, and when it is sought to close it, or any part of 
 it, above the surface of the street, so that light is in any 
 measure to his injury prevented, that interest is to be taken, 
 and one wliose lot, acquired as this was, is directly depend- 
 ent upon it for a supply, becomes a party interested and 
 entitled, not only to be heard, but to compensation."^ 
 
 ' A railroad elevated fifteen feet above the surface. 
 
 2 In a strong dissenting opinion, Judge Earl said : " If the plaintifE 
 has an unqualified private easement in Front Street for light and air 
 and for access to his lot, then such easement cannot be taken or de- 
 stroyed without compensation to hiin. Arnold v. Hudson Eiver R. R. 
 Co., 65 N. Y. 661). But whatever right an abutter, as such, has in the 
 street is subject to the paramount authority of the State to regulate and 
 control the street, for all the purposes of a street, and to make it more 
 
 § 121d 
 
406 POLICE KEGULATION OF BEAL PKOPEBTY. 
 
 It is reasonable for us, therefore, to conclude that, 
 whether the public owns the fee in the road-bed or only an 
 easement to be used as a public way, in either case there is 
 an interest in the road-bed left in the abutting owner, which 
 might be affected by an appropriation of the street or road 
 to other purposes, but the character of the private interest 
 changes with the nature of the public interest. Where the 
 fee is in the public, the abutting proprietor has an incorporeal 
 right to the use of the highway as such, and, if the New York 
 
 suitable for the wants and convenience of the public. The grade 
 of a street may, under authority of law, be changed and thus 
 great damage may be done to an abutter. The street may be cut 
 down in front of his lot so that he is deprived of all feasible 
 access to It, and so that the walls of his house may fall into the 
 street, and yet he will be entitled to no compensation (EadclifE's Ex'ra v. 
 The Mayor, etc., 7 N. Y. 195; O'Connor v. Pittsburg, 18 Pa. St. 187; 
 Callendar v. Marsh, 1 Pick. 418) ; and so the street may be raised in front 
 of his house so that travelers can look into his windows and he can have 
 access to his house only through the roof or upper stories, and all light 
 and air will be shut away, and yet he would be without any remedy. The 
 legislature may prescribe how streets shall be used, as such, by limiting 
 the use of some streets to pedestrians or omaibuses, or carriages or 
 drays, or by allowing them to be occupied under proper regulations for 
 the sale of hay, wood or other produce. It may authorize shade trees to 
 be planted in them, which will to some extent shut out the light and air 
 from the adjoining houses. Streets cannot be couflned to the same use 
 to which they were devoted when first opened. They were opened for 
 streets in a city and may be used in any way the increasing needs of a 
 growing city may require. They may be paved; sidewalks may be built; ■ 
 sewer, water and gas pipes may belaid; lamp-posts may be erected, and 
 omnibuses with their noisy rattle over stone pavements, and other new 
 and strange vehicles may be authorized to use them. All these things 
 may be done, and they are still streets, and used as such. Streets are for 
 the passage and transportation of passengers and property. Suppose the 
 legislature should conclude that to relieve Broadway in the city of New 
 York from its burden of travel and traflBc it was necessary to have an under 
 ground street below the same ; can Its authority to authorize its construc- 
 tion be doubted? And for the same purpose could it not authorize a 
 way to be made fifteen feet above Broadway for the use of pedestrians? 
 Where the streets become so crowded with vehicles that it is inconven- 
 ient and dangerous for pedestrians to cross from one side to another, 
 can it be doubted that the legislature could authorize them to be bridged, 
 60 that pedestrians could pass over them, and that it could do this with- 
 § 12ld 
 
WHAT CONSTITUTES A TAKING. 407 
 
 <jase ^ will be fully indorsed by subsequent adjudication, to 
 the free passage of light and air over the street. If the 
 fee is in the abutting land owner, the bed of the road is his 
 property, subject only to the public easement, that it shall 
 be left open for use as a highway. The abutting land owner 
 may do anything with the land that is not inconsistent with 
 the full enjoyment of the right of way by the public. Thus, 
 the private owner has a right to plant trees in the street, 
 to construct cellars extending to the middle of the street, 
 and to depasture his cattle in the street in front of his own 
 land, where the right has not been taken away by police 
 regulations in the interest of the public. And a law, which 
 granted to another the right of pasturage in such a street 
 or road, would operate as an exercise of the right of emi- 
 nent domain, and constitute a taking of property. ^ The 
 Supreme Court of the United States has held that *' on the 
 general question as to the rights of the public in a city 
 street, we cannot see any material difference in principle 
 
 out compensation to the abutting owners, whose light and air and access 
 might to some extent be interfered with ? These improvements would not 
 be a destruction of or a departure from the use to which the land was 
 dedicatedwhen the street was opened; but they would render the street 
 more useful for the very purpose for which it was made, to wit : travel 
 and transportation. If by these improvements the abutting owners were 
 injured, they would have no constitutional right to compensation, for 
 the reason that no property would be merely consequential. And if the 
 public authorities could make these improvements, then the legislature 
 could undoubtedly authorize them to be made by gaosi-public corpora- 
 tions, organized for the purpose, as it can authorize plank-road and 
 turnpike companies to take possession of highways and take toll from 
 those who use them." (pp. 186-188.) 
 
 1 Story V. N. Y. Elevated E. E. Co., supra. 
 
 ' Tonawanda K. E. Co. v. Hunger, 5 Denio, 266; Woodruff «. Neal, 
 28 Conn. 166. In Ohio, by an ancient custom, the right of pasturage in 
 the public highways was held to be in the public. Kerwhacker v. Cleve- 
 land, etc., E. E. Co., 3 Ohio St. 172. In Adams v. Elvers, 11 Barb. 390, 
 it was held that trespass would lie in favor of the abutting proprietor and 
 against one who stood in the public highway and abused the proprietor, 
 on the ground that he was there without license, and using the land for 
 other purposes than as a highway. 
 
 § 121d 
 
408 POLICE REGULATION OF REAL PROPERTY. 
 
 with regard to the extent of those rights, whether the fee 
 is in the public or in the adjacent land owner, or in some 
 third person. In either case, the street is legally open and 
 free for the public passage, and for such other public uses 
 as are necessary in a city, and do not prevent its use as a 
 thoroughfare, such as the laying of water-pipes, gas-pipe» 
 and the like."^ It may be reasonable to hold, at the 
 present day, that the use of the road-bed for the laying of 
 water, gas, and sewer pipes, was contemplated in the 
 original condemnation of the land for use as a highway, and 
 was considered in the estimation of damages ; but it is alto- 
 gether inconsistent with reason and the nature of things to 
 assert as a general proposition, that the rights of the public 
 in the streets are the same, whether the fee is in the public 
 or is private property.* 
 
 It is more diflScult at times to answer satisfactorily the 
 question of fact, whether a particular use of a street is 
 inconsistent with its use as a highway, and the question has 
 oftenest been applied to the construction of turnpikes, 
 horse and steam railways along the highway. 
 
 The only essential difference between an ordinary high- 
 way and a turnpike is that the former is kept in repair by 
 the public by means of taxation, general or special, and 
 
 1 Barney v. Keokuk, 94 TJ. S. 324, 440. 
 
 2 Judge Cooley says: "The practical difference in the cases is, that 
 when the fee is taken, the possession of the original owner is excluded; 
 and in the case of city streets where there is occasion to devote them to 
 many other purposes besides those of passage, but nevertheless not in- 
 consistent, such as for the laying of water and gas-pipes, and the con- 
 struction of sewers, this exclusion of any private right of occupation is 
 important, and will sometimes save controversies and litigation. But 
 to say that when a man has declared a dedication for a particular use, 
 under a statute which makes a dedication the gift of a fee, he thereby 
 makes it liable to be appropriated to other purposes, when the same 
 could not be done if a perpetual easement had been dedicated, seems to 
 be basing Important distinctions upon a difference which after all is more 
 technical than real, and which in my view does not affect the distinction 
 made." Cooley, Const. Lim. 687n. See Bloomfleld, etc., Co. v. Calkins, 
 62 N. Y. 386. 
 
 § 121d 
 
WHAT CONSTITUTES A TAKING. 409 
 
 the public generally may use it without charge ; while the 
 turnpike is owned and conducted by a private corporation, 
 and a toll is required of all who use it. Since in both cases 
 the public have an indefeasible right to use the road, the 
 establishment of a turnpike over the common highway is not 
 an appropriation of the street to a different purpose. The 
 payment of toll is only an equivalent of the taxation and 
 the highway labor, which in the case of an ordinary high- 
 way might be required of the abutting land owner for keep- 
 ing the road in repair.^ 
 
 The question, whether the construction of a railroad along 
 a highway is such an appropriation of the land to different 
 uses as will support the claim of compensation of the abut- 
 ting land owners, is very hard to answer satisfactorily. The 
 decisions on the subject are at variance, and the grounds upon 
 which the decisions are placed are not always the same, and 
 sometimes confusing. In some of the cases, great stress is 
 laid upon the fact, that the fee is or is not in the public." 
 But the authorities and facts will only justify this distinc- 
 
 \ " When a common highway Is made a turnpike or a plank-road, upon 
 ■which tolls are collected, there is much reason for holding that the owner 
 of the soil is not entitled to any further compensation. The turnpike or 
 the plank-road is still an avenue for public travel, subject to be used in 
 the same manner as the ordinary highway was before, and, if properly- 
 constructed, is generally expected to increase rather than diminish the 
 value of property along its line; and though the adjoining proprietors 
 are required to pay toll, they are supposed to be, and generally are fully 
 compensated for this burden by the increased excellence of the road, and 
 by their exemption from highway laborupon it." Cooley Const. Lim. 677, 
 678. See Commonwealth v. Wilkinson, 16 Pick. 175 (24 Am. Dec. 624) ; 
 Murray v. County Commissioners, 12 Met. 455 ; Benedict v. Goit, 3 B.irb. 
 459; Wright v. Cartey, 27 N. J. 76; State v. Laverack, 34 N. J. 201 ; 
 Douglass V. Turnpike Co., 22 Md. 219 ; Chagrin Falls, etc., Plank-road Co. 
 V. Cane, 2 Ohio St. 419; Bagj? v. Detroit, 5 Mich. 336. But see Williams 
 V. Natural Bridge Plank-road Co., 21 Mo. 580. 
 
 2 See Moses v. Pittsburg, etc., E. E. Co., 21 111. 616, 522; Peoples. 
 Kerr, 37 Barb. 357; s. c. 27 N. Y. 188; Millburnu Cedar Eapids, etc., E. 
 B. Co., 12 Iowa, 246; Franz v. Eailroad Co., 55 Iowa, 107, and the other 
 cases cited in this connection. 
 
 § 12ld 
 
410 POLICE REGULATION OF REAL PBOPEKTY. 
 
 tion : If the new use of the highway is inconsistent with its 
 character as a highway, where the fee is iu the abutting 
 hind owner, it is a taking of property for which compensa- 
 tion must be made, whatever incidental benefits or injuries 
 the land owner may sustain from the new use ; and even if 
 he has sustained no injury whatever, for incidental injuries 
 never constitute a taking of property in the law of eminent 
 domain. But if the fee is in the public, any use of the 
 highway will not operate as a taking of the property of 
 the abutting land owner, which does not interfere with 
 his ordinary use of the street.* Probably this distinc- 
 tion might assist in explaining away many of the difFei-- 
 ences of opinion, which now make the cases on this sub- 
 ject confusing and perplexing. Where the fee is not in 
 the public, it seems to be the opinion of an overwhelm.- 
 ing majority of the cases, that the construction of an 
 ordinary steam railway along a public street was a tak- 
 ing of the property of the owners of the fee for a differ- 
 ent use, for which compensation had to be made. " It is 
 true that the actual use of the street by the railroad may 
 not be so absolute and constant as to exclude the public also 
 from its use. With its single track, and particularly if the 
 cars used upon it were propelled by horse-power, the inter- 
 ruption of the public easement in the street might be very 
 trifling and of no practical consequence to the public at^ 
 large. But this question cannot affect the question of right 
 of property, or of the increase of the burden upon the 
 soil. It would present simply a question of degree in 
 respect to the enlargement of the easement, and would not 
 affect'the principle, that the use of a street for the purposes 
 of a railroad imposed upon it a new burden." ^ 
 
 1 See Protzman v. Indianapolis, etc., E. R. Co., 9 Ind. 467 ; New Albany, 
 etc., R. R. Co. V. O'Daily, 13 Ind. 353; Crawford v. Delaware, 7 Ohio St. 
 459; Street Railways. Cumminsville, 14 Ohio St. 541. 
 
 5 Wager v. Troy Union K. E. Co., 25 N. Y. 526, 532. See Inhabitants of 
 Springfield v. Conn. River R. R. Co., 4 Cush. 71 ; Imlay v. Union Branch 
 § 12ld 
 
WHAT CONSTITUTES A TAKING. 411 
 
 In deciding that the construction of an ordinary railroad as 
 a public street or highway was a new taking of the prop- 
 erty of the owner of the fee, the Supreme Court of Con- 
 necticut presented a very strong argument in favor of the 
 proposition, which is as follows: "When land is con- 
 <lemned for a special purpose on the score of public utility, 
 the sequestration is limited to that particular use. Land 
 taken for a highway is not convertible into a common. As 
 the property is not taken, but the use only, the right of 
 the public is limited to the use, the specific use, for which 
 the proprietor has been divested of a complete dominion 
 over his own estate. These are propositions which are no 
 longer open to discussion. But it is contended that land 
 once taken and still held for highway purposes may be 
 used for a railway without exceeding the limits of the ease- 
 ment already acquired by the public. If this is true, if 
 the new use of the land is within the scope of the original 
 sequestration or dedication, it would follow that the rail- 
 way privileges are not an encroachment on the estate 
 
 E. E. Co., 26 Conn. 249; Presbyterian Society, etc., v. Auburn etc., E. E. 
 •Co., 3 Hill, 567; Williams v. N. Y. Central E. R. Co., 16 N. Y. 97; Car- 
 penter V. Oswego, etc., E. E. Co., 24 N. Y. 655; Mahon v. N. Y. Central 
 E. R. Co., 24 N. Y. 658; Starr v. Camden & Atlantic E. E. Co., 24 N. J. 
 592; Central R. E. Co. ■». Hetfleld, 29 N. J. 206; So. Ca. E. E. Co. v. 
 Steiner, 44 Ga. 546 ; Donnaher's Case, 16 Miss. 649 ; Cox v. Louisville, 
 etc., E. E. Co., 48 Ind. (178; Schurmeier v. St. Paul, etc., E. E. Co., 
 10 Minn. 82; Gray v. First Division, etc., 13 Minn. 816; Pord v. 
 Chicago, etc., E. E. Co., 14 Wis. 609, 616; Pomeroy v. Chicago, 
 ■etc., R. R. Co., 16 Wis. 640; Cox v. Louisville, etc., R. E. Co., 48 
 Ind. 178; Cosby v. Eailroad Co., 10 Bush (Ky.), 288; Eailroad Co. ». 
 Combs, 10 Bush, 382 (19 Am. Eep. 67) ; 2 Dillon Municipal Corp., § 725. 
 See contra, Mifflin v. Eailroad Co., 16 Pa. St. 182; Cases of Phila. & 
 Trenton E. E. Co., 6 Whart. 25 (36 Am. Dec. 202) ; Struthers v. Eailroad 
 €o., 87 Pa. St. 282; Lexington, etc., E. E. Co. v. Applegate, 8 Dana, 289 
 (33 Am. Dec. 497). See, also, West Jersey E. E. Co. v. Cape May, etc., 
 'Co., 84 N. J. Eq. 164; Com. v. Erie, etc. R. R. Co., 27 Pa. St. 339; Sny- 
 der V. Pennsylvania R. R. Co., 55 Pa. St. 340; Peddicord v. Baltimore, 
 «tc, R. R. Co., 34 Md. 463 ; Wolfe v. Covington, etc., E. E. Co., 15 B. Mon. 
 404 ; Houston, etc., E. E. Co. v. Odum, 53 Tex. 343. 
 
 § 121d 
 
412 POLICK REGTJIiATION OF KEAL PEOPEKTY. 
 
 remaining in the owner of the soil, and that the new mode 
 of enjoying the public easement will not enable him right- 
 fully to assert a claim to damages therefor. On the con- 
 trary, if the true intent and efficacy of the original con- 
 demnation was not to subject the land to such a burden as 
 will be imposed upon it when it is confiscated to the uses 
 and control of a corporation, it cannot be denied that in the 
 latter case the estate of the owner of the soil is injuriously 
 afiected by the supervening servitude ; that his rights are 
 abridged, and that in a legal sense his land is again taken 
 for public uses. Thus it appears that the court have sim- 
 ply to decide whether there is such an identity between a 
 highway and a railway, that statutes conferring a right to 
 establish the former include an authority to construct the 
 latter. 
 
 " The term ' public highway,' as employed in such of our 
 statutes as convey the right of eminent domain, has certainly 
 a limited import. Although, as suggested at the bar, a nav- 
 igable river or a canal is, in some sense, a public highway, 
 yet an easement assumed under the name of a highway 
 would not enable the public to convert a street into a canal. 
 The highway, in the true meaning of the word, would be 
 destroyed. But as no such destruction of the highway is 
 necessarily involved in the location of a railway track upon 
 it, we are pressed to establish the legal proposition that a . 
 highway, such as is referred to in these statutes, means, or 
 or at least comprehends a railroad. Such a construction is 
 possible only when it is made to appear that there is a sub- 
 stantial practical or technical identity between the uses of 
 land for highway and for railway purposes. No one can 
 fail to see that the terms ' railway ' and ' highway ' are 
 not convertible, or that the two uses, practically consid- 
 ered, although analogous, are not identical. Land, as 
 ordinarily appropriated by a railroad company, is incon- 
 venient and even impassible to those who would use it 
 as a common highway. Such a corporation does not hold 
 § 121(1 
 
WHAT CONSTITUTES A TAKING. 413 
 
 itself bound to make or keep its embankments and bridges 
 in a condition which will facilitate the transitus of such 
 vehicles as ply over an ordinary road. 
 
 "A practical dissimilarity obviously exists between a 
 railway and a common highway, and is recognized as the 
 basis of a legal distinction between them. It is so recog- 
 nized on a large scale when railway privileges are sought 
 from legislative bodies, and granted by them. If the terms 
 * highway ' and ' railway ' are synonymous, or if one. of 
 them includes the other by legal implication, no act would 
 be more superfluous than to require or to grant authority 
 to construct railways over localities already occupied as high- 
 ways. If a legal identity does not subsist between a high- 
 way and a railway, it is illogical to argue that, because a 
 railway may be so constructed as not to interfere with the 
 ordinary uses of a highway, and so as to be consistent with 
 the highway right already existing, therefore such a new use 
 is included within the old use. It might as well be urged 
 that if a common or a canal, laid out over the route of a 
 public road, could be so arranged as to leave an ample road- 
 way for vehicles and passengers on foot, the land should be 
 held to be originally condemned for a canal or a common, 
 as properly incident to the highway use. 
 
 " There is an important practical reason why courts 
 should be slow to recognize a legal identity between the 
 two uses referred to. They are by no means the same 
 thing to the proprietor whose land is taken ; on the con- 
 trary, they suggest widely different standards of compensa- 
 tion. One can readily conceive of cases, where the value of 
 real estate would be directly enhanced by the opening of a 
 highway through it ; while its confiscation for a railway at 
 the same or a subsequent time would be a gross injury to 
 the estate, and a total subversion of the mode of enjoyment 
 expected by the owner, when he yielded his private rights to 
 the public exigency. But essential distinctions also exist 
 between highway and railway powers, as conferred by stat- 
 
414 POLICE EEGULATION OF EBAL PKOPEETT. 
 
 ute — distinctions which are founded in the very nature of 
 the powers themselves. In the case of the highway, the 
 statute provides that, after the observance of certain legal 
 forms, the locality in question shall be forever subservient 
 to the right of every individual in the community to pass over 
 the thoroughfare so created at all times. This right in- 
 volves the important implication that he shall so use the 
 privilege as to leave the privilege of all others as unob- 
 structed as his own, and that he is therefore to use the road 
 in the manner in which such roads are ordinarily used, with 
 such vehicles as will not obstruct or require the destruction 
 of the ordinary modes of travel thereon. He is not author- 
 ized to lay down a railway track, and run his own locomo- 
 tive and car upon it. 
 
 "No one ever thought of regarding highway acts as 
 conferring railway privileges, involving a right in every 
 individual, not only to break up ordinary travel, but also to 
 exact tolls from the public for the privilege of using the 
 peculiar conveyances adapted to a railroad. If a right of 
 this description is not conferred when a highway is author- 
 ized by law, it is idle to pretend that any proprietor is 
 divested of such a right. It would seem that, under such 
 circumstances, the true construction of highway laws could 
 hardly be debatable, and that the absence of legal identity 
 between the two uses of which we speak was patent and" 
 entire. 
 
 "Again, no argument or illustration can strengthen the 
 self-evident proposition that, when a railway is authorized 
 over a public highway, a right is created against the pro- 
 prietor of the fee, in favor of a person, or artificial person, 
 to whom he bore no legal relation whatever. It is under- 
 stood that when such an easement is sought or bestowed, a 
 new and independent right will accrue to the railroad corpo- 
 ration as against the owner of the soil, and that, without any 
 reference to the existence of the highway, his land will 
 forever stand charged with the accruing servitude. Ac- 
 § 121d 
 
WHAT CONSTITUTES A TAKING. 415 
 
 cordiflgly, if such a highway were to be discontinued, 
 according to the legal forms prescribed for that purpose, 
 the railroad corporation would still insist upon the express 
 and independent grant of an easement to itself, enabling it 
 to maintain its own road on the site of the abandoned high- 
 way. W e are of opinion, therefore, as was distinctly inti- 
 mated by this court, in a former case^ that, to subject 
 the owner of the soil of a highway to a further appro- 
 priation of his land to railway uses is the imposition 
 of a new servitude upon his estate, and is an aict 
 demanding the compensation which the law awards when 
 land is taken for public purposes.'" The dissimilarity 
 of highways and railways cannot be more strikingly pre- 
 sented than by a consideration of the numerous safeguards 
 that are thought necessary to be thrown around the public, 
 when a railroad crosses a highway. The bells must be 
 rung, the whistle must be blown, the speed must be slack- 
 ened, and very often bars are laid across the highway, so 
 that vehicles and foot passengers cannot attempt to cross 
 the track while the train is passing. How much greater 
 would be the inconvenience to the public if a railroad track 
 was laid along the highway, instead of across it. 
 
 But where the fee of the highway is in the public, the 
 cases pretty generally hold that the establishment of a rail- 
 road along a highway is not such a taking of property of 
 the adjoining land owner as will require the payment of 
 compensation.^ It cannot be doubted that in no case 
 
 ' See opinion of Hinman, J., in Nicholson v. N. T.,etc., R. B. Co., 22 
 Conn. 74, 86. 
 
 2 Milburn v. Cedar Rapids, etc., R. R. Co., 12 Iowa, 246; Clinton v. 
 Cedar Rapids, etc., R. R. Co., 24 Iowa, 455; Franz v. Railroad Co., 66 Iowa, 
 107; Grand Rapids, etc., R. R. Co. v. Heisel, 38 Mich. 62 ("31 Am. Rep. 
 306) ; Grand Rapids, etc., R. R. Co. v. Heisel, 47 Mich. 393; Harrison v. 
 New Orleans, etc., R. R. Co., 34 La. Ann. 462 (44 Am. Rep. 438) ; Protz- 
 man v. Indianapolis, etc., R. R. Co., 9 Ind. 467; New Albany, etc., R. R. 
 Co. V. O'Daily, 13 Ind. 353; Chicago, etc., R. E. Co. v. Joliet, 79111.26; 
 Moses V. Pittsburg, etc., R. R. Co., 21 111. 616, 522. In this last case, 
 
 § 121(1 
 
416 POLICE EEGULATION OP REAL PEOPEETT. 
 
 does the consequential depreciation in value of adjoining 
 property, as a result of the construction of a steam rail- 
 way along the street, constitute a taking of property which 
 requires a payment of compensation, any more than the 
 ordinary and reasonable exercise of any right gives rise to 
 liability for incidental injuries to others. The appropria- 
 tion of a highway to other purposes must interfere with 
 some positive right of property, in order that it may be 
 considered a taking of property. Where the public does 
 not own the fee, any other and different use of the highway 
 
 Caton, C. J., said: "By the city charter, the common council is vested 
 with the exclusive control and regulation of the streets of the city, the 
 fee simple title to which we have already decided is vested in the muni- 
 cipal corporation. The city charter also empowers the common council 
 to direct and c mtrol the location of railroad tracks within the city. In 
 granting this permission to locate the track in Beach Street, the common 
 council acted under an express power granted by the legislature. So that 
 the defendant has all the right which both the legislature and the common 
 council could give it, to occupy the street with its track. But the com- 
 plainant assumes higher ground, and claims that any use of the street, even 
 under the authority of the legislature and the common council, which tends 
 to deteriorate the value of his property on the street, Is a violation of 
 that fundamental law which forbids private property to be taken for pub- 
 lic use without just compensation. This Is manifestly an erroneous view 
 of the constitutional guaranty thus invoked. It must necessarily hap- 
 pen that streets will be used for various legitimate purposes, which will, 
 to a greater or less extent, discommode persons residing or doing busi- 
 ness upon them, and just to that extent damage their property; and yet 
 such damage is incident to all city property, and for it a party can 
 claim no remedy. The common council may appoint certain localities, 
 where hacks and drays shall stand waiting for employment, or where 
 wagons loaded with hay or wood, or other commodities, shall stand 
 waiting for purchasers. This may drive customers away from shops 
 or stores in the vicinity, and yet there is no remedy for the damage. A 
 street is made for the passage of persons and property ; and the law 
 cannot define what exclusive means of transportation and passage shall 
 be used. Universal experience shows that this can best be left to the 
 determination of the municipal authorities, who are supposed to be the 
 best acquainted with the wants and necessities of the citizens generally. 
 To say that a new mode of passage shall be banished from the streets, no 
 matter how much the general good may require it, simply because streets 
 were not so used In the days of Blackstone, would hardly comport with 
 § 121d 
 
WHAT CONSTITUTES A TAKING. 417 
 
 would be a taking, whatever eflFect it may have upon the 
 adjoining property, as has been already fully explained, for 
 there would be a fresh appropriation of the property of the 
 owners of the fee. But when the fee is in the State, the 
 adjoining hind owner has only an easement in the street, 
 which entitles him to a reasonable enjoyment of it as a street, 
 and an appropriation of it to other purposes, for example, 
 for the construction of a steam railway, will constitute a 
 taking of the property of the abutting proprietor, only when 
 
 the advancement and enlightenment of the present age. Steam has but 
 lately taken the place, to any extent, of animal power for land trans- 
 portation, and for that reason alone shall it be expelled the streets? 
 Por the same reason camels must be kept out, although they might be 
 profitably employed. Son«e fancy horse or timid lady might be frightened 
 by such uncouth objects. Or is the objection not in the motive-power 
 used, but because the cars are larger than were formerly used, and run 
 upon Iron, and confined to a given track In the street? Then street rail- 
 roads must not be admitted ; they have large carriages which run on iron 
 rails, and are confined to a given track. Their momentum is great, and 
 may do damage to ordinary vehicles or foot passengers. Indeed we may 
 suppose or assume that streets occupied by them are not so pleasant for 
 other carriages or so desirable for residences or business stands, as if 
 not thus occupied. But for this reason the property owners along the 
 street cannot expect to stop such improvements. The convenience of 
 those who live at a greater distance from the center of a city requires the 
 use of such improvements, and for their benefit the owners of property 
 upon the street must submit to the burden, when the common council 
 determine that the public good requires it. Cars upon street railroads 
 are now generally, if not universally, propelled by horses ; but who can 
 say how long it will be before It will be found safe and profitable to pro- 
 pel them with steam, or some other power besides horses? Should we 
 say that this road should be enjoined, we could advance no reason for it 
 which would not apply with equal force to street railroads ; so that con- 
 sistency would require that we should stop all. Nor would the evil 
 which would result from the rule we must lay down stop here. We 
 must prohibit every use of a street which discommodes those who re- 
 side or.do business upon it, because their property will else be damaged. 
 This question has been presented in other States, and in some instances, 
 where the public have only an easement of the street, and the owner of 
 the adjoining property still holds the fee in the street, it has been sus- 
 tained ; but the weight of authority, and certainly, in our apprehension, 
 -all sound reasoning is the other way." 
 
 27 § 121d 
 
418 POLICE REGCLATION OP REAL PROPERTY. 
 
 his reasonable enjoyment of the street as such is denied to 
 him. The noise, smoke, etc., do not involve any taking of 
 property, however much it may depreciate the value and 
 the desirability of the adjoining property. This would 
 seem to be the better doctrine, and such is the opinion of 
 the Indiana courts.^ 
 
 But the courts are almost unanimously of the opinion 
 that the appropriation of the street to the use of au ordi- 
 nary horse railway, designed to convey passengers and 
 property from one part of a city to another, is not a new 
 taking of property, for which compensation must be made^ 
 whether the fee is in the State or in the abutting land 
 owner. The use of the highway by a horse car company is 
 held to be consistent with its use as a highway, and to con- 
 stitute no interference with the reasonable enjoyment of the 
 adjoining property-owner.* But the abutting land owner 
 is only entitled to a reasonable use of the street as such, and 
 the infliction on him of a mere inconvenience in the use of 
 the street, by the construction of a street railway, will not 
 
 1 Protzman v. Indianapolis, etc., R. E. Co., 9 Ind. 467; New Albany, 
 etc., E. E. Co. V. O'Daily, 12 Ind. 551 ; s. c. 13 Ind. 353. See, also, Street 
 Railway «. Cumminsville, 14 Ohio St. 523; Grand Eapids, etc., E. B. 
 Co., 38 Mich. 62 (31 Am. Eep. 806) ; » c. 47 Mich. 393. 
 
 2 For cases, in which the fee was in the adjoining proprietor, se& 
 Attorney-General v. Metropolitan E. E. Co., 125 Mass. 515 (28 Am. Eep. 
 264); Commonwealth ». Temple, 14 Gray, 75; Elliott ». Fairhaven, etc., 
 R. E. Co., 32 Conn. 579; Hinchman v. Eailroad Co., 17 N. J. Eq. 75; s. c. 
 20N. J. Eq. 360; City Eailroad Co. o. City Eailroad Co., 20 N. J. Eq. 61; 
 Street Railway v. Cumminsville, 14 Ohio St. 523 ; Hobart v. Milwaukee 
 City E. E. Co., 27 Wis. 194 (9 Am. Eep. 461). In Craig v. Eailroad Co., 
 39 Barb. 449; s. c. 39 N. Y. 404; Wager v. Eailroad Co., 25 N. Y. 626, it 
 was held that there was no difference between the horse and steam rail- 
 ways. In both cases, there must be a payment of compensation for a new 
 taking of property from the owners of the fee. For cases, in which the 
 fee was in the public, see People v. Kerr, 27 N. Y. 188; Eellioger v. Street 
 Eailroad Co., 60 N. Y. 206; Metropolitan E. E. Co. v. Quincy E. R. Co., 12 
 Allen, 262; Street Eailway ti. Cumminsville, 14 Ohio St. 523; Chicago o. 
 Evans, 24 111. 62; Heas v. Baltimore, etc., RaUway Co., 62 Md.24a (36 Am. 
 Rep. 371. 
 
 § 12ld 
 
WHAT CONSTITUTES A TAKING. 419 
 
 constitute a taking. Thus, it was held in New York, that 
 the construction of a street railway, so near to the sidewalk 
 as not to leave space enough for the standing of vehicles 
 between the track and the sidewalk, was a taking of prop- 
 erty in the constitutional sense.^ And the same opinion 
 was expressed in Wisconsin concerning a street railway 
 whose tracks prevented the owner of a store from having 
 his drays stand transversely to the sidewalk, while unload- 
 ing goods.' While the running of a street railway does 
 not ordinarily interfere with the reasonable enjoyment of 
 the street by the adjoining land owners, still it might, under 
 peculiar circumstances, interfere very seriously with the 
 ordinary use of the street, as where the street is very nar_ 
 row, and at the same time a great business thoroughfare ;, 
 and whenever that happens, the construction of the railway 
 would constitute a taking of property, for which compen- 
 sation can be demanded. Mr. Cooley seems to think that 
 under such circumstances, the property owner would, in the 
 light of the authorities, be without a remedy.* But while the 
 proprietor of the adjoining property may be incommoded to 
 some extent by the construction and maintenance of a street 
 railway, without entitling him to compensation, his com- 
 plete exclusion from the ordinary use of the street, or an. 
 extraordinary and unreasonable interference with such use,, 
 would support a claim for compensation, as being a taking" 
 of property in the exercise of the right of eminent domain.. 
 Such, at least, appears to us to be a reasonable deduction 
 from the authorities, which hold that any interruption of 
 the reasonable use of the streets by the abutting land owner 
 will constitute a taking of property. 
 
 It has sometimes happened that land, which had been 
 appropriated for the opening of a street, is afterwards used 
 
 J Eellinger v. Street E. R. Co., 60 N. Y. 206; People v. Kerr, 27 N. Y. 
 188. 
 
 ' Hobart v. Milwaukee City R. B. Co., 27 Wis. 194 (9 Am. Rep. 461J. 
 * Cooley Const. Lim. 688. 
 
 § 12ld 
 
420 POLICE EEQULATION OF KEAL PROPERTY. 
 
 for the erection of a market, or public scale, etc. This 
 cannot be done in any case without payment of compensa- 
 tion, because the use of the land as a market is inconsistent 
 and interferes with its use as a street.^ 
 
 § 121c. Compensation, how ascertained." — It does not 
 fall properly within the scientific scope of a work on Police 
 Power to enter into a detailed account of the rule and pro- 
 ceedings for the ascertainment and measurement of the 
 compensation, that is to be paid to one whose land is taken 
 away from him in the exercise of eminent domain. That 
 subject belongs more properly to a work on practice or on 
 damages. But there are certain constitutional principles 
 involved in the subject, which will require a cursory con- 
 sideration. 
 
 While the condemnation of land for public purposes is 
 in no sense a judicial act, the determination of the amount 
 of compensation is a judicial act, which requires, for a final 
 adjudication, a trial of the facts before a court, with a due 
 observance of all those constitutional safeguards that are 
 thrown around private rights, for their protection against 
 arbitrary or tyrannical infringements. The legislature can- 
 not fix the limits of compensation, nor can it be done in 
 any ex parte proceeding. But a jury is not necessary, unless 
 the constitution expressly provides for a jury trial.* 
 
 1 State V. Laverack, 34 N. J. 201 ; State v. Mayor, etc., of Mobile, 6 
 Port. 279 (30 Am. Dec. 664) ; Angell on Highways, § 243, et seq. ; Barney 
 V. Keokuk, 94 U. S. 324. 
 
 2 Charles River Bridge v. Warren Bridge, 7 Pick. 344 ; s. c. 11 Pet. 420, 
 571; People v. Kniskem, 54 N. Y. 62; Petition of Mt. Washington Co., 86 
 N. H. 134; Ligati). Commonwealth, 19 Pa. St. 466, 460; People i;. Tall- 
 man, 36 Barb. 222; Clark v. Miller, 54 N. Y. 528; Baltimore, etc., B. B. 
 Co. V. Pittsburg, etc., R. K. Co., 17 W.Va. 812; Power's Appeal, 29 Mich. 
 504; Lamb v. Lane, 4 Ohio St. 167; Hood v. Finch, 8 Wis. 381; Boon- 
 ville V. Ormrod, 26 Mo. 193 ; Dickey v. Tennison, 27 Mo. 873 ; Rich o. 
 Chicago, 59 111. 286 ; Cook v. South Park Com., 61 HI. 116; Ames v. Lake 
 Superior, etc., R. E. Co., 21 Minn. 241. See Putnam v. Douglass Co., 6 
 
 § 121e 
 
COMPENSATION, HOW ASCERTAINED. 421 
 
 Another question relates to the time when the compen- 
 sation should be made. According to the constitutions of 
 many of the States, the payment of compensation must 
 always precede or accompany the condemnation of the land. 
 But where such constitutional provisions do prevail, it is held 
 to be no violation of them for public officers, or the officers 
 and agents of the corporation, in whose favor the right of 
 eminent domain is to be exercised, to enter upon the land, 
 before the payment of compensation, for the purpose of 
 surveying and selecting the land for condemnation.^ In 
 the absence, however, of such a constitutional requirement, 
 at least in thejcase of the appropriation of land by the State 
 or municipal authorities, it is not necessary to provide for 
 the payment of compensation before the appropriation. It 
 is sufficient, if an easy remedy is provided for the recovery 
 of the compensation by the land owner at his own instance." 
 
 Ore. 378 (25 Am. Eep, 627) ; Conn. River R. R. Co. v. County Commis- 
 sioners, 127 Mass. 50 (84 Am. Rep. 338). 
 
 * Cushman v. Smith, 34 Me. 247 ; Nicliols v. Somerset, etc., R. E. Co., 
 43 Me. 356; Bloodgood v. Mohawk, etc., R. R. Co., 14 Wend. 5X ; ». c. 18 
 Wend. 9 ; State v. Seymour, 35 N. J. 47; Walther v. Warner, 26 Mo. 277; 
 Fox V. W. P. R. R. Co., 31 Cal. 538. 
 
 ■' Charlestown Branch R. R. Co. o. Middlesex, 7 Met. 78 ; Haverhill 
 Bridge Proprietors ». County Commissioners, 103 Mass. 120 (4 Am. Rep. 
 618) ; Conn. River R. R. Co. v. Com., 127 Mass. 50 (34 Am. Rep. 338) ; 
 Talbot B. Hudson, 16 Gray, 417; Ash «. Cummlngs, 60 N. H. 591; Orr ». 
 Quinby, 64 N. H.590; Calkins v. Baldwin, 4 Wend. 667 (21 Am. Dec. 168); 
 Bloodgood V. Mohawk, etc., R. R. Co., 18 Wend. 9 ; Gardner v. Newburg, 
 2 Johns. Ch. 162 (7 Am. Dec. 626) ; Rexford v. Knight, 11 N. Y. 308 ; Chap- 
 man V. Gates, 54 N. Y. 132 ; Hamersly v. New York, 66 N. Y. 633 ; Loweree 
 V. Newark, 38 N. J. 151; Long v. Fuller, 68 Pa. St. 170; Callison v. 
 Hedrick, 15 Gratt. 244; Southwestern R. R. Co. v Telegraph Co., 46 Ga. 
 43; Buffalo, etc., R. R. Co. v. Ferris, 26 Tex. 588; Whites Nashville, etc., 
 R. R. Co., 7 Heisk. 518; Simms o. Railroad Co., 12 Heisk. 621; Taylor 
 II. Marcy, 25 111. 618; People v. Green, 3 Mich. 498; Brock «. Hishen, 40 
 Wis. 674; State v. Messenger, 27 Minn. 119; Harper v. Richardson, 22 
 Cal. 251. But the land owner must be able to institute the suit for the 
 recovery of the compensation of his own motion, and without the inter 
 position of some State oflScer. Shepherdson b . Milwaukee, etc., R. R. Co., 
 6 Wis. 605; Powers v. Bears, 12 Wis. 213 ; In the absence bt a statutory 
 
 § 121e 
 
422 POLICE REGULATION OF REAL PROPERTY. 
 
 But this can hardly be taken as an emphatic determination 
 that such is a constitutional requirement in the absence of 
 an express provision to that eflfect. It is rather a consid- 
 eration of what provisions the legislature ought to make 
 for the protection of the land owner, so that he should not 
 be left to the mercy of a possibly dishonest or bankrupt 
 corporation, and run the risk of losing both his land and his 
 money .^ And most of the State statutes do make such 
 provisions. 
 
 Section 122. Regulation of the use of lands — What is a nuisance? 
 122a. What is a nuisance, a judicial question. 
 1226. Unwholesome trades in tenement houses may be prohibited. 
 122c. Confinement of objectionable trades to certain localities. 
 122d. Regulation of burial grounds. 
 
 122e. Laws regulating the construction of wooden buildings. 
 122/. Regulation of the right to hunt game. 
 122flf. Abatement of nuisances — Destruction of buildings. 
 
 § 122. Regulation of the use of lands — What is a 
 
 provision for compensation, the land owner may resort to his common-law 
 remedy. Hookeru. Haven, etc., Co., 16 Conn. 146 (36 Am. Dee. 477). It is 
 not unconstitutional, after providing a proper remedy for the recovery of 
 the compensation, to limit the time in which the remedy may be pursued. 
 Charleston Branch R. R. Co. v, Middlesex, 7 Met. 78; Rexford v. Knight, 
 
 11 N. Y. 808 ; Callison v. Hedricli, 15 Gratt. 244 ; Cupp v. Commissioners of 
 Seneca, 19 Ohio St. 173 ; People v. Green, 3 Mich. 496; Taylor v. Marcy, 
 26 111. 518; Gilmer v. Lime Point, 18 Cal. 229. But where the property 
 is tal^en by a private corporation, instead of by the State, an inclination is 
 manifested by some of the authorities to hold it necessary on general prin- 
 ciples that payment of compensation precede or accompany the condem- 
 nation. "The settled and fundamental doctrine is, that government has 
 no right to take private property for public purposes, without giving just 
 compensation; and it seems to be necessarily implied that the indemnity 
 should, in cases which will admit of it, be previously and equitably as- 
 certained, and be ready for reception, concurrently in point of time with 
 the actual exercise of the right of eminent domain." Kent, Chancellor, 
 in 2 Kent, 329, note. See, also, to the same effect, Loweree v. Newark, 38 
 N. J. 151 ; State v. Graves, 19 Md. 351 ; Dronbergerc. Reed, 11 Ind. 420; 
 Shepherdson v. Milwaukee, etc., R. R. Co, 6 Wis. 605; Powers v. Bears, 
 
 12 Wis. 213. 
 
 ' See Ash v. Cummings, 50. N. H. 691 ; Memphis & Charleston E. R. Co. 
 § 122 
 
KEGULATION OF THE USB OF LANDS. 423 
 
 nuisance? — The reasonable enjoyment of one's real estate 
 is certainly a vested right, which cannot be interfered with 
 or limited arbitrarily. The constitutional guaranty of pro- 
 tection for all private property extends equally to the 
 enjoyment and the possession of lands. An arbitrary in- 
 terference by the government, or by its authority, with the 
 reasonable enjoyment of private lands is a taking of private 
 property without due process of law, which is inhibited by 
 the constitutions. But it is not every use which comes 
 within this constitutional protection. One has a vested 
 right to only a reasonable use of one's lands. It is not 
 difficult to find the rule which determines the limitations 
 upon the lawful ways or manner of using lands. It is the 
 rule, which furnishes the solution of every problem in 
 the law of police power, and which is comprehended in the 
 legal maxim, sic utere tuo, ut alienum non Icedas. One can 
 lawfully make use of his property only in such a manner 
 as that he will not injure another. Any use of one's lands 
 to the hurt or annoyance of another is a nuisance, and may 
 be prohibited. At common law that is a nuisance, which 
 causes personal discomfort or injury to health to an unusual 
 degree. As it has been expressed in a preceding section,^ 
 the right of personal security against acts, which will cause 
 injury to health or great bodily discomfort, cannot be made 
 absolute in organized society. It must yield to the reason- 
 able demands of trade, commerce and other great interests 
 of society. While the State cannot arbitrarily violate the 
 right of personal security to health by the unlimited author- 
 ization of acts which do harm to health, or render one's 
 residence less comfortable, there is involved in this matter 
 the consideration of what constitutes a reasonable use of 
 
 v. Payne, 87 Miss. 700 ; Walthero. Warner, 26 Mo. 277; Can «. Georgia 
 E. R. Co., 1 Ga. 624 ; Southwestern R. R. Co., v. Telegraph Co., 46 Ga. 43 ; 
 Henry v. Dabuque, etc., R. R. Co., 10 Iowa, 640; Curran b. Shattuck, 24 
 Cal. 427. 
 » § 18. 
 
 § 122 
 
424 POLICE EEGULATION OF REAL PROPERTY. 
 
 one's property. At common law this is strictly a judicial 
 question of fact, the answer to which varies according to 
 the circumstances of each case. One is expected to endure 
 a reasonable amount of discomfort and annoyance for the 
 public good, which is furthered by the permission of trades 
 and manufactures, the prosecution of which necessarily 
 involves a certain amount of annoyance or injury to the in- 
 habitants of the neighborhood. In all such cases, it is a 
 question of equity, on whom is it reasonable to impose the 
 burden of the inevitable loss, resulting from this clashing 
 of interests; and independently of statute it is strictly a 
 judicial question, a,nd all the circumstances of the case 
 must be taken into consideration.^ But the legislature fre- 
 quently interferes to modify the common law of nuisances; 
 sometimes legalizing what wei'e nuisances before the enact- 
 ment, and sometimes prohibiting, as being nuisances, what 
 were not considered to be such at common law. No legis- 
 lative act can justify a nuisance, which is willfully commit- 
 ted and which serves no useful purpose. But when the 
 objectionable act serves a useful purpose, and supplies a 
 public want, the private right of personal security against 
 nuisances must yield to the public necessity, whenever a 
 legislative act calls for the sacrifice. It is a constitutional 
 exercise of police power to legalize a nuisance, if the public 
 exigencies should require it. It is of course a matter of 
 legislative discretion, whether the legalization of the nui- 
 sance is required by the public necessities. Thus it has 
 been held to be lawful for the legislature to authorize the 
 ringing of bells and the blowing of whistles by the loco- 
 motives of railroads at the times when, and in the places 
 where, it would otherwise be a nuisance. The public safety 
 required the imposition of this burden upon the comfort 
 and quiet of those who may thereby be disturbed.'* In the 
 
 1 See ante, § 18. 
 
 ' Sawyer v. Davis, 136 Mass. 239 (49 Am. Kep. 27); Pittsburg, Cln. & 
 St. L. E. K. Co. V. Crown, 67 Ind. 45 (33 Am. Rep. 73). 
 § 122 
 
REODLATION OF THE USE OP LANDS. 425 
 
 same manner the legislature may authorize the prosecution 
 of certain trades and occupations in localities, which would, 
 under like circumstances, be considered a nuisance at com- 
 mon law. But in all these cases of legalization of nui- 
 sances, the legislative interference must promote some 
 public good. If the benefit, derived from the authoriza- 
 tion of the nuisance, is altogether of a private character ; if 
 it can in no legitimate sense be considered as a public bene- 
 fit, the legislative interference is unwarranted, and it is the 
 duty of the courts to declare the statute to be unconstitu- 
 tional. It is a question for the legislature whether the pub- 
 lic needs require the legalization of the nuisance ; but it is a 
 judicial question whether such a legislative act serves a 
 public want. 
 
 On the other hand, through the interference of the legis- 
 lature, the doing of acts may be prohibited on the ground 
 of being nuisances, which otherwise have been held to be 
 permissible, because of the public benefit resulting from 
 these acts. The courts may determine, independently of 
 statute, that the public benefit from a certain unwholsome or 
 annoying trade far outweighs the personal discomfort or in- 
 jury to health, which attends the prosecution of the trade, 
 and for that reason may refuse to prohibit ; but the legisla- 
 ture is not precluded from reaching a diflferent conclusion. 
 Granting that the act or trade produces discomfort or 
 injury to health, it is ultimately a legislative question 
 whether the public welfare requii'es the imposition of this 
 burden. No one has a natural right to do that which in- 
 jures another. If the law permits him to do this it is a 
 privilege, which may be revoked at any time by the propp* 
 authority. The police power of the government is reposed 
 in the legislature. It is quite a common experience for the 
 legislature, either to prohibit altogether, or to regulate the 
 
 § 122 
 
426 POLICE REGULATION OF EEAL PEOPEBTY. 
 
 doing of that which works an annoyance or injury to 
 others.' 
 
 § 122a. What Is a nuisance, a jndicial question. — It 
 
 is clearly within the legislative discretion to determine 
 whether the private interest or the public good shall yield 
 in a case where the two are antagonistic, and to prohibit or 
 permit the doing of what promotes the public welfare and 
 at the same time causes personal discomfort or injury ; and 
 its judgment cannot be subjected to a review by the courts. 
 The courts cannot reverse the legislative decree in such a 
 case ; it is not in any sense a judicial question. But the 
 police power of the legislature, in reference to the prohibi- 
 tion of nuisances, is limited to the prohibition or regulation 
 of those acts which injure or otherwise interfere with the 
 rights of others. The legislature cannot prohibit a use of 
 lands, which works no hurt or annoyance to the neighbors or 
 adjoining property. The injurious effect of the use of the 
 'and furnishes the justification for the interference of the 
 legislature. The legislative prohibition or regulation of the 
 use and enjoyment of one's private property in land is in 
 violation of constitutional principles, which is n«t confined 
 to the prevention of a nuisance. A certain use of lands, 
 harmless in itself, does not become a nuisance, because the 
 legislature has declared it to be so. The legislature can 
 determine whether it will permit or prohibit the doing of a 
 thing which is harmful to others, in the proper considera- 
 tion of the public welfare ; but it cannot prohibit as a nui- 
 sance an act which inflicts no injury upon the health or 
 
 ' " Unwholesome trades, slaughter houses, operations offensive to the 
 senses, the deposit of gunpowder, the application o^ steam power to 
 propel cars, the building with combustible materials, and the burial of 
 the dead, may all be interdicted by law, la the midst of the dense 
 masses of population, on the general and rational principle, that every 
 person ought so to use h's property as not to injure' his neighbors; and 
 that private interests must be made Hubservient to the general interests 
 -of the community." 2 Ktjnt Com. 340. 
 § 122a 
 
WHAT IS A NUISANCE, A JUDICIAL QUESTION. 427 
 
 property of others. If the harmful or innocent character 
 of the prohibited use of lands furnishes the test for deter- 
 mining the constitutionality of the legislative prohibition, 
 it is clearly a judicial question, and is certainly not within 
 the legislative discretion, whether the prohibited act or acts 
 work an injury to others. If they do not cause injury 
 or annoyance to others, the attempted legislative interfer- 
 ence is unwarranted by the constitution, and it is the duty 
 of the courts to declare it to be unconstitutional. The fol- 
 lowing language from an opinion of the Supreme Court of 
 New Jersey will serve to fortify the position here taken on 
 the limitation of the legislative power to declare what is a 
 nuisance: "Assuming the power in this board [of health] 
 derived from the legislature, to adjudge the fact of the 
 existence of a nuisance, and also assuming such jurisdiction 
 to have been regularly exercised, and upon notice to the 
 parties interested, still, I think, it is obvious that, in a case 
 ^uch as that before this court, the finding of the sanitary 
 board cannot operate, in any respect, as a judgment at law 
 would, upon the rights involved. It will require but little 
 reflection to satisfy my mind, accustomed to judge by legal 
 standards, of the truth of this remark. To fully estimate 
 the character and extent of the power claimed, will conduct 
 us to its instant rejection. The authority to decide when 
 a nuisance exists, is an authority to find facts, to estimate 
 their force, and to apply rules of law to the case thus made. 
 This is a judicial function, and it is a function applicable to 
 a numerous class of important interests. The use of land 
 and buildings, the enjoyment of water rights, the practice 
 of many trades and occupations, and the business of nian- 
 Tifacturing in particular localities, all fall, on some occasions, 
 in important respects, within its sphere. To say to a man 
 that he shall not use his property as he pleases, under cer- 
 tain conditions, is to deprive him pro tanto, of the enjoyment 
 of such property. To find conclusively against him, that 
 a state of facts exists with respect to the use of his property, 
 
 § 122a 
 
428 POLICE EEGULATIOK OF REAL PROPEETY. 
 
 or the pursuit of his business, which subjects him to the- 
 condemnation of the law, is to affect his rights in a vital 
 point. The next thing to depriving a man of his property, 
 is to circumscribe him in its use, and the right to use prop- 
 erty is as much under the protection of the law as the 
 property itself, in any other respects, is, and the one inter- 
 est can no more than the other be taken out of the hands of 
 the ordinary tribunals. If a man s property cannot be taken 
 away from him except upon trial by jury, or by the exercise 
 of the right of eminent domain upon compensation made, 
 neither can he, in any other mode, be limited in the use of 
 it. The right to abate public nuisances, whether we regard 
 it as existing in the municipalities, or in the community, or 
 in the hands of the individual, is a common-law right, and 
 is derived in every instance of its exercise, from the same 
 source — that of necessity. It is akin to the right of destroy- 
 ing property for the public safety in case of the prevalence 
 of a devastating fire or other controlling exigency. But 
 the necessity must be present to justify the exercise of the 
 right, and whether present or not, must be submitted to 
 a jury under the guidance of a court. The finding of a 
 sanitary committee, or of a municipal council, or of any 
 other body of a similar kind, can have no effect whatever, 
 for any purpose, upon the ultimate disposition of a matter 
 of this kind."^ To the same effect is the following quotation 
 
 1 Hutton V. City of Camden, 39 N. J. 122 (23 Am. Kep. 209). See Man- 
 hattan Fertilizing Co. v. Van Keuren, 8 C. E. Green, 261; Weill). Kicord, 
 9 C. E. Green, 169. "The common council, in the exercise of the power 
 to declare nuisances, may not declare anything such which cannot be 
 detrimental to the health of the city, or dangerous to its citizens, or a 
 public inconvenience, and even then not when the thing complained of 
 is expressly authorized by the supreme legislative power in the State. 
 Its legislation must be subordinate to that of the State, the power to 
 which it owes its existence. When its acts of legislation are brought 
 before this court, whose high duty It is to see that inferior tribunals, 
 vested with a limited jurisdiction, whether legislative or judicial, do not 
 exceed their power, we must determine whether these are valid or 
 not. I cannot think an ordinance declaring the running of any loco- 
 § 122a 
 
WHAT IS A NUISANCE, A JUDICIAL, QUESTION. 429 
 
 from the opinion of tlie Supreme Court of tlie United States 
 in a case in wliich the constitutionality of a city ordinance 
 was questioned, which declared certain wharf structures to 
 be nuisances and provided for their removal : " The mere 
 declaration by the City Council of Milwaukee that a certain 
 structure was an encroachment or an obstruction did not 
 make it so, nor could such a declaration make it a nuisance 
 unless it in fact had that character. It is a doctrine not to 
 be tolerated in this country, that a municipal corporation, 
 without any general laws either of the city or of the State, 
 within which a given structure can be shown to be a nui- 
 sance, can, by a mere declaration that it is one, subject it to 
 removal by any person supposed to be aggrieved, or even 
 by the city itself. This would place every house, every 
 
 motive or train of cars upon any track in the city, at a greater rate than 
 one mile in six minutes a removable nuisance, or declaring the stopping 
 ol a train of cars for one moment upon the track of a railroad authorized 
 by law, where the track does not cross a street or a public square, a re- 
 movable nuisance, is a fair or legal exercise of the power to declare nui- 
 sances and provide for their removal. * ♦ * The doing of such acts 
 cannot interfere with the public health or expose the inhabitants of the 
 city to danger or inconvenience. I do not see why any railroad depot, or 
 track, or freight house, any train of cars in motion or stationary at any 
 point in the city, cannot under the same power, with equal propriety, be 
 declared nuisances, if the common council should so determine." State 
 V. New Jersey, etc., R. R., 29 N. J. L. 170. " There is a difference between 
 abating a nuisance and declaring what shall be a nuisance. For the defin- 
 ition of a nuisance, and consequent ascertainment of the subjects to 
 which their power of abating or removing may be extended, the council 
 must refer to the general law, just as they must, in requiring the per- 
 formance of patrol duty, learn what that duty is. In derogation of the 
 ordinary lights of property, they may abate or remove anything which 
 by law is a nuisance, and in an action against them proof, that a thing 
 was a nuisance, and was therefore removed or destroyed, would consti- 
 tute their justification. But they have no power to declare that to be a 
 nuisance which is not, or to dispense with other proof of the noxious 
 character of a thing, by showing that by an ordinance they had declared 
 that all such thinss should be nuisances." Dissenting opinion of Ward- 
 law, J., in Orossby v. Warren, 1 RichL. 388; Lakeview v. Setz, 44 111. 81. 
 See Baldwin v. Smith, 82 III. 163. 
 
 § 122a 
 
430 POLICE REOnLATION OF REAL PROPEKTT. 
 
 business, and all the property of the city, at the uncon- 
 trolled will of the temporary local authorities. 
 
 >' 1 
 
 § 122b. Unwholesome trades in tenement houses may 
 be prohibited. — Perhaps the judicial character of the 
 power to determine what is a nuisance, is best displayed in 
 the consideration of a late case from the New York Court, 
 of Appeals,* in which an act of the legislature was declared 
 to be unconstitutional, which made it a misdemeanor to 
 manufacture cigars, in cities of more than five hundred 
 thousand inhabitants, in any tenement house occupied by 
 more than three families, except on the first floor of the 
 house, on which there may be a store for the sale of cigars 
 and tobacco. In delivering the opinion of the court. Judge 
 Earlesaid: "It is plain that this law interferes with the 
 profitable and free use of his property by the owner or 
 lessee of a tenement house who is a cigar maker, and tram- 
 mels him in the application of his industry and the dispo- 
 sition of his labor, and thus, in a strictly legitimate sense, it 
 arbitrarily deprives him of his property and of some por- 
 tion of his personal liberty. The constitutional guaranty 
 that no person shall be deprived of his property without 
 due process of law may be thus violated without the physi- 
 cal taking of property for public or private use. This 
 guarantee would be of little worth if the legislature could, ^ 
 without compensation, destroy property or its value, de- 
 prive the owner of its use, deny him the right to live in his 
 own house or to work at any lawful trade therein. If the 
 legislature has the power under the constitution to prohibit 
 the prosecution of one lawful trade in a tenement house, 
 then it may prevent the prosecution of all trades 
 therein." * * * "AH laws which impair or trammel 
 these rights, which limit one in his choice of a trade or a 
 profession, or confine him to work or live in a specified 
 
 » Yates ». Milwaukee, 10 Wall. 605. 
 ' In the matter of Jacobs, 98 N. Y. 98(60 Am. Kep. 636). 
 § 1226 
 
TTNWHOLESOME TRADES IN TENEMENT HOUSES. 431 
 
 locality, or exclude him from his own house, or restrain his 
 otherwise lawful movements (except in police regulations) 
 are infringements upon his fundamental rights of liberty, 
 which are under constitutional protection." * • * Iq 
 speaking of the limitations upon the police power of the 
 government, he continues : " Under it the conduct of an 
 individual, and the use of property may be regulated so as 
 to interfere to some extent with the freedom of the one and 
 the enjoyment of the other, and in cases of great emer- 
 gency, engendering overruling necessity, property may be 
 taken and destroyed without compensation, and without 
 what is commonly called due process of law. The limit 
 of the power cannot be accurately defined, and the 
 courts have not been able or willing definitely to circum- 
 scribe it. But the power, however broad and extensive, 
 is not above the constitution. It furnishes the supreme 
 law, and so far as it imposes restraints the police power 
 must be exercised in subordination thereto." * * • 
 •'Grenerallj', it is for the legislature to determine what laws 
 and regulations are needed to protect the public health and 
 secure the public comfort and safety, and while its measures 
 are calculated, intended, convenient and appropriate to ac- 
 complish these ends, the exercise of its discretion is subject 
 to the review of the courts. If it passes an act ostensibly 
 for the public health, and thereby destroys or takes away 
 the property of a citizen or interferes with his personal 
 liberty, then it is for the courts to scrutinize the act and see 
 whether it really relates to and is convenient and appropri- 
 ate to promote the public health." Whether the court was 
 correct in holding this statute to be unconstitutional, because 
 the regulation did not tend to promote the public health, 
 need not be discussed here. The principle is clearly set- 
 tled, that the court did not exceed its power, in pronounc- 
 ing the law to be unconstitutional on that ground. But the 
 court would have trespassed upon the powers of the legisla- 
 ture, if it had undertaken to pass upon the necessity of the 
 
 § 1226 
 
432 POLICE EEGULATION OF REAL PROPERTY. 
 
 regulation. It falls within the legislative discretion to 
 decide upon the necessity for the exercise of its police 
 power. 
 
 It can not be questioned that the State has the power to 
 prohibit the prosecution of all unwholesome or injurious 
 trades and employments in these large tenement houses in 
 our metropolitan cities, in which the people are often 
 huddled together like cattle. The manufacture of cigars is 
 considered by some to so taint the atmosphere as to endan- 
 ger the health of the occupants of the house. If this be true, 
 then the legislature has undoubtedly the power to prohibit 
 the prosecution of this trade in a tenement house occupied 
 hy three or more families. The injurious effect upon the 
 health of the cigarmaker's family may not furnish the proper 
 justification for legislative interference, except in behalf of 
 minor children. For since the wife and grown children, in 
 the theory of law, if not in fact, voluntarily subject them- 
 selves to the unwholesome odors of the tobacco, they do not 
 need and cannot demand the protection of the law. But 
 where a house is occupied by more than one family, the 
 other families have a right to enjoy the possession of their 
 parts of the house, free from the unwholesome or disagree- 
 able odors of a trade that is being plied by another in the 
 same house. 
 
 A very common evil is the washing of soiled clothea 
 in tenement houses. There can be very little doubt 
 that infectious and contagious diseases may be communi- 
 cated and spread over a large area through the medium of 
 soiled clothes, and if the legislature were to see fit to pro- 
 hibit washerwomen from plying their trade in tenement 
 houses, I cannot see what constitutional objection could be 
 raised to such and similar regulations, even though their 
 enforcement may impose very great hardships upon those 
 who can least bear them. Granting that the prohibited 
 trade is unwholesome to the occupants of the house, the 
 § 1226 
 
CONFINKMENT OF OBJECTIONABLE TRADES. 433 
 
 advisability of the prohibition must be referred to the legis- 
 lative discretion. 
 
 § 122c. Conflnement of objectionable trades to certain 
 localities.^ — As long as a trade does not injure the public 
 health, and is the source of no annoyance whatever to the 
 inhabitants of the locality in which it is conducted, it can- 
 not lawfully be prohibited. Every man has a constitu- 
 tional right to follow on his premises any calling, provided 
 it does not in any way interfere with another's reasonable 
 enjoyment of his premises. But if the prosecution of a 
 certain trade affects another injuriously, the State may so 
 regulate the trade that the injuiy may be avoided or reduced 
 to a minimum. If the trade is in itself, and necessarily, 
 harmful to one's neighbors, or to the public health, it may 
 be prohibited altogether. But if it can be prosecuted un- 
 der certain limitations, so as to avoid injury to others, the 
 police regulation must be confined to the imposition of 
 these needed restrictions, and the trade cannot be absolutely 
 prohibited.* 
 
 The police regulation cannot extend beyond the evil 
 to be remedied. Where, thei'efore, certain trades and 
 employments, which serve some useful purpose and add 
 something to the world's wealth, are harmful to the in- 
 habitants of the locality, in which they may be conducted ; 
 and the harm may be avoided altogether, or considerably 
 reduced, by confining them to localities, in which the pop- 
 
 1 See ante, § 104 on the police control of employments in respect to 
 locality. 
 
 ' " Conceding that the power 'to abate and remove' should be con- 
 strued as including the power to prevent, yet this preventive power could 
 •only be exercised in reference to those things that are nuisances in them- 
 selves and necessarily so. There are some things which in their nature 
 are nuisances, and which the law recognizes as such; there are others 
 which may or may not be so, their character in this respect depending 
 on circumstances." Lake View v. Setz, 44 111. 81. 
 
 28 § 122c 
 
434 POLICE EEGULAXION OF EEALi PROPEKTY. 
 
 ulation is sparse and the residences are few ; it is altogether 
 permissible to prohibit the prosecution of these trades in 
 other localities. The instances of this kind of regulation 
 are very numerous. Slaughter-houses have been confined 
 to certain localities,^ the sale of fresh meat and vegetables; 
 has been prohibited except in the public markets, where the 
 articles exposed for sale may be conveniently inspected.* 
 In the same way may the manufacture of pressed hay ' 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,* 
 provided it be conceded that the sale of intoxicating liquors 
 in those localities, in a legal sense, threatens an injury to 
 the public.^ But in all these cases the prohibition must b& 
 confined to the removal of the evil to be guarded against. 
 There cannot be an absolute prohibition of a trade in a lo- 
 cality in which it may be prosecuted without annoyance or 
 inconvenience to the neighboring residents. Thus it ha& 
 
 ' Cronln®. People, 82 N. Y. 318; Metropolitan Board of Health v. 
 Heister, 37 N. Y. 661; Slaughter-house Cases, 16 Wall. 36; Milwaukee v. 
 Gross, 21 Wis. 241 ; 
 
 ' Bufealo V. Webster, 10 Wend. 99; Bush ». Seaburg, 8 Johns. 418; 
 Winnsboro v. Smart, 11 Eich. L. 551 ; Bowling Green v. Carson, 10 Bush, 
 64; New Orleans „. Stafford, 27 La. Ann. 417 (21 Am. Eep. 663); Wart- 
 man V. Philadelphia, 33 Pa. St. 202; St. Louis v. Weber, 14 Mo. 647; Ash 
 V. People, 11 Mich. 347 ; Leclaire v. Davenport, 13 Iowa, 210. Contra^ 
 Bethune v. Hayes, 28 Ga. 560; Caldwell v. Alton, 33 111. 416; Blooming. 
 ton«.Wahl, 46 111. 489. 
 
 ' Mayor City of Hudson v. Thorn, 7 Paige, 261. 
 
 * State V. Joyner, 81 N. C, 534 ; Ex parte McCIain, 61 Cal. 436 (44 Am> 
 Eep. 554) ; Dorman v. State, 34 Ala. 216 ; Boyd v. Bryant, 35 Ark. 69 (.''7 
 Am. Rep. 6) ; Trammell v. Bradley, 37 Ark. 356 ; Bronsin v. Oberlin, 41 
 Ohio St. 476 (62 Am. Eep. 90). 
 
 6 See ante, § 103. 
 § 122c 
 
CONFINEMENT OF OBJECTIONABLE TRADES. 435 
 
 been held to be unreasonable to prohibit the establishment 
 of a steam engine within the limits of the city.' 
 
 In Kentucky, a statute was enacted, forbidding any per- 
 son 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 pro- 
 duce any public harm, and the court therefore declared the 
 regulation to be an unconstitutional interference with the 
 right of enjoyment of private property.* 
 
 Another curious and questionable exercise of police power, 
 in prohibiting objectionable trades in certain localities, is to 
 be found reported in the case of Commonwealth v. Bearse.* 
 A statute was passed, prohibiting the establishment of any 
 store, tent, or booth, for the purpose of vending provisions 
 and refreshments, or for the exhibition of any kind of show 
 or play, within one mile of the camp-meeting grounds dur- 
 ing the time of holding any camp or field meeting for relig- 
 ious purposes, except with the consent of those having the 
 camp-meeting in charge, provided that no one will be re- 
 quired to suspend any regular, usual, and established busi- 
 ness, which is being conducted within such limits.* The 
 object of the statute was to prevent the disturbance of the 
 religious meeting by the presence of hucksters and peddlers, 
 who are drawn thither purely by the desire to barter with 
 those who are in attendance upon the meeting. Inasmuch 
 as no one's regular business is interfered with, the owner of 
 contiguous land is only prohibited from so using his land 
 as to make a profit out of the camp-meeting, to the annoy- 
 ance of those who have assembled there for worship. This 
 
 » Baltimore v. Redecke, 49 Md. 217 (33 Am. Rep. 239.') 
 2 Commonwealth v. Bacon, 13 Ky.210 (26 Am. Rep. 189). 
 » 132 Mass. 542 (42 Am. Rep. 450). 
 * Mass. Statute of 1867, ch. 59. 
 
 § 122c 
 
436 POLICE EEGULATION OF REAL PROPBETY. 
 
 limitation upon the right of enjoyment of one's lands was 
 declared to be a constitutional exercise of police power. 
 The court say: "It is contended that the defendant's use 
 of his own land is subjected to the will of another; that 
 he cannot under this law use it for an otherwise lawful pur- 
 pose, except with the consent of another. But no general 
 control has been assumed over his land; no lawful and 
 established business that he has is intei'fered with. If it 
 be that of selling provisions and refreshments, he may con- 
 tinue it, although the camp-meeting has assembled. If he 
 purposes to make a use of his land that he would not have 
 made but for the assembling of the camp-meeting, that is not 
 an improper police regulation which requires him to obtain 
 the consent of its authorities. * * * If a business were 
 in its character such as was, or was liable to become, a nuis- 
 ance, the legislature might entirely forbid it. It would 
 equally provide that it should not be maintained except 
 with the consent of those in whose vicinity it was to be car- 
 ried on, on account of the inconveniences attending it. 
 This does not compel one to submit to others the inquiry 
 whether he shall use his own land in a lawful way, but it is 
 a legislative decision that such use is not lawful or permis- 
 sible, unless consent is obtained from those who are already 
 using their property in such a way that they may be an- 
 noyed." Confined within these narrow limits, it is probable 
 that the constitutionality of the regulation may be sustained, 
 on the ground that the business of catering to the wants of 
 those in attendance on the camp-meeting may become a 
 nuisance, unless it is regulated in this manner. But a law 
 could not be sustained, which compelled a man to suspend 
 his regularly established business during the time of hold- 
 ing the meeting, because in the regular prosecution of his 
 business he might supply the wants of the camp-meeting 
 company. Such a law would be an unconstitutional interfer- 
 ence with the natural right of enjoyment of one's property. 
 § 122c 
 
REGULATION- OF BURIAL-GROUNDS. 437 
 
 § I22d. Regulation of burial-grounds. — The burial of 
 the dead within the limits of towns and cities has always 
 been and still is, a common evil. In the past little atten- 
 tion was paid to sanitary regulations of any kind, and the 
 injurious effect of the burial of the dead in thickly settled 
 communities was seldom considered. But in some com- 
 munities public opinion has been aroused on the subject, 
 and laws have been passed, which prohibited interments 
 within certain limits. In all the cases in which the consti- 
 tutionality of this law was brought into question, it has been 
 conceded that the legislature may regulate the burial of 
 the dead, and prohibit it; in those localities in which it will 
 prove injurious to the public health; ^ but it is doubtful how 
 far such a police regulation may be prevented directly 
 or indirectly, by agreements, that a cemetery shall be 
 established in a given locality. In New York it was held 
 that a grant of land by the municipal corporation, for the 
 purpose of a cemetery, with covenants of quiet enjoyment, 
 did not prevent the passage of an ordinance prohibiting in- 
 terments in that part of the city. It was no impairment of 
 a contract, as municipal corporations have no power to make a 
 contract, controlling or taking away their police power.^ But 
 it has been held in Illinois that the legislature has no right 
 to prohibit the burial of the dead in the grounds of a ceme- 
 tery company, which it has been authorized to lay out for 
 that purpose. The court say : "A cemetery is not a nuisance 
 per se and the subject of legislative prohibition. The legis- 
 lature has the constitutional right to pass laws regulating 
 the interment of the dead, so as to prevent injury to the 
 health of the community, and this in respect to a private 
 
 ' Brick Presb. Church v. Mayor, etc., 5 Cow. 638; Coates v. Mayor, 
 etc., 7 Cow. 585 ; Kincald's Appeal, 66 Pa. St. 423 (5 Am. Rep. 377) ; City 
 Council ». Wentworth St. Baptist Church, 4 Strobh. 310; Lake View ». 
 Rose Hill Cemetery Co., 70 111. 192. 
 
 ' Brick Presbyterian Church ». Mayor, etc., 5 Cow. 638; Coates v. 
 Mayor, etc., 7 Cow. 685. 
 
 § I22d 
 
438 POLICE RBGITLATION OP EEAL PROPEKTY. 
 
 corporation acting under its charter, as well as with indi- 
 viduals. But the legislature cannot prohibit the burial of 
 the dead in lands purchased and laid out at great expense by 
 a corporation chartered for the purpose. Such a statute is 
 unconstitutional, as impairing the obligation of the contract 
 contained in the charter. ' '^ The regulations of the burial of 
 the dead have so far been confined to the prohibition of 
 burial in the compact parts of a city, or within the city 
 boundary. It is also held by some ^ that a cemetery is not 
 a nuisance per se, and consequently the interment of the 
 dead cannot be prohibited altogether. Of late, the advo- 
 cates of cremation of dead bodies have been urging the un- 
 wholesomeness of burial as a reason why cremation should 
 be adopted in its stead, as a means of disposing of corpses. 
 If the burial of the dead does not cause or threaten injury 
 to the public health, burial could not lawfully be prohibited; 
 but if it is proven to be a fact that the interment of dead 
 bodies does injure the public health, and is a fruitful source 
 of the transmission of disease, as it is claimed to be by 
 many scientists, it cannot be doubted that the State may 
 prohibit burial and compel the remains of the dead to be 
 cremated, or disposed of in some other harmless way. 
 
 In addition to the regulation of the locality in which 
 buriai is permitted, there are usually some regulations con- 
 cerning the manner of interment, the object of which is to 
 prevent any deterioration of the public health, as, for ex- 
 ample, that the grave must be of a certain depth, and that 
 the interment shall not be made without special license from 
 the health officer. 
 
 § 122e. Laws regulating the construction of wooden 
 buildings in cities. — Another great danger, which threat- 
 
 1 Lake View v. Rose Hill Cemetery Co., 70 111. 192 (22 Am. Bep. 71). 
 See post for the general discussion of the restriction upon the exercise of 
 police power contained in the charters of private corporations. 
 
 2 See Lake View ». Rose Hill Cemetery Co., 70 111. 192 (22 Am. Rep. 71). 
 
 § 122e 
 
CONSTRUCTION OF WOODEN BUILDINGS IN CITIES. 439 
 
 «ns all 'thickly settled communities, is that of more or less 
 •extensive conflagrations, resulting from accidental fires. 
 Every house, everywhere, is subject in a greater or less de- 
 gree to the danger of destruction by fire ; but it is only 
 when the buildings are closely built, that the danger of fire 
 being communicated from an adjoining building becomes 
 great enough to call for special regulations for preventing 
 the spread of such accidental fires. The danger of destruc- 
 tion by fire is least when the buildings are constructed of 
 more or less non-combustible material. It would probably 
 be considered unreasonable to require all buildings to be 
 absolutely fire proof, but it is a common regulation in the 
 large cities to prohibit the erection of wooden buildings, or 
 of buildings with wooden, or shingle roofs. This regulation 
 has often been subjected to judicial criticism, and the con- 
 stitutionality of it has invariably been sustained.^ The in- 
 crease in the danger of a general conflagration, resulting 
 from the construction of wooden buildings in the heart of a 
 large city, furnishes ample justification for the regulation. 
 But the proprietor has the right to erect on his lands 
 whatever kind of buildings or other structures he may 
 please, provided he does not, in doing so, threaten, or do, 
 harm to others ; and, as long as he does not put others in 
 danger, he may even set fire to his own house, without com- 
 mitting any punishable wrong.* While, therefore, it is 
 lawful for the State to prohibit the erection of wooden 
 
 ' See Wadleigh v. Gilman, 12 Me. 403; Welch v. Hotchkiss, 39 Conn. 
 lU; Vanderbelt v. Adams, 7 Cow. 349; Corp. of Knoxville d. Bird, 12 
 Lea, 121 (47 Am. Eep. 326) . In the case of Knoxville v. Bird, a city ordi- 
 nance, prohibiting the erection of wooden buildings, was sustained in its 
 application to cases, in which a contract for the construction of the build- 
 ing was made before the passage of the ordinance, and remained unexe- 
 cuted ; the passage of the law against the erection of such buildings made 
 illegal all contracts for their construction, and released all parties to the 
 contract from the obligations thereby assumed. Cordes v. Miller, 39 
 Mich. 681 (33 Am. Rep. 330). 
 
 « Bloss V. Tobey, 2 Pick. 320; Hennesey v. People, 21 How. Pr. 239. 
 
 § 122e 
 
440 POLICE REGULATION OF REAL PROPERTY. 
 
 buildings in thickly settled communities, because of the 
 danger of fire, it would certainly not be lawful to apply th& 
 same regulation to suburban and country property, on which 
 the buildings are far apart ; for the danger of a general con- 
 flagration is reduced to so low a minimum, that, if the 
 danger existed at all, it could not be appreciably increased 
 by the erection of wooden buildings. 
 
 § 122/. Regulation of the right to hunt game. — It is 
 
 a very common police regulation, to be found in every 
 State, to prohibit the hunting and killing of birds and other 
 wild animals in certain seasons of the year, the object of the 
 regulation being the preservation of these animals from 
 complete extermination by providing for them a period of 
 rest and safety, in which they may procreate and rear their 
 young. The animals are those which are adapted to con- 
 sumption as food, and their preservation is a matter of 
 public interest. The constitutionality of such legislation 
 cannot be questioned. 
 
 § 122g. Abatement of nuisances — Destruction of 
 buildings. — Nuisances may always be abated. The fact 
 of being a nuisance having been established, the thing may 
 be destroyed, removed, or so regulated that it will cease to 
 be a nuisance. In certain cases of extreme necessity, the 
 private individual may, without the aid of government, abate 
 or remove the nuisance ; in other cases the government must 
 through its proper department interfere. But in all these 
 cases the interference with the enjoyment of private prop- 
 erty, whether by the State or by the individual, must be 
 justified by the proof of two facts, viz. : first, that the 
 property, either per se or in the manner of using it, is a 
 nuisance, and secondly, that the interference does not ex- 
 tend beyond what is necessary to correct the evil. To ex- 
 tend the exercise of the power of abatement, beyond the point 
 of necessity, would make the interference unlawful. But 
 § I22g 
 
ABATEMENT OF NUISANCES. 441 
 
 for the purpose of removing a nuisance, the State may go 
 to any length, even so far as to destroy houses and other 
 buildings, where they are in fact nuisances. If a house is 
 falling into decay, and endangering the public safety, or it 
 is irretrievably unhealthy, and consequently threatening 
 evil to the public health,^ or is perse, for any other reason, a 
 nuisance, it may certainly be destroyed, and it is not unusual 
 to find municipal regulations of this character. But where 
 the nuisance consists, not in thebuildingitself.but in the use 
 to which it is put, the building cannot be destroyed. The 
 interference by the State must be confined to the prohibi- 
 tion of the wrongful use. A good illustrative case is to be 
 found in the Michigan reports. The city of Detroit passed 
 an ordinance, providing for the demolition of all buildings 
 used for the purpose of prostitution. It was no doubt 
 thought that, apart from being a severe punishment to the 
 owners of the houses for letting them for this unlawful pur- 
 pose, it would be a most effective effort to suppress the 
 social vice, by destroying the buildings best adapted for 
 carrying on the immoral trade. Whatever good motive 
 may have induced the enactment of the ordinance, it was 
 clearly unconstitutional, as being an interference with pri- 
 vate property beyond what was necessary to abate or remove 
 the nuisance, and such was the opinion of the Supreme Court 
 of Michigan. In delivering its opinion, the court said: 
 "It is said that the house was a nuisance. This may be 
 very true ; but it was a nuisance in consequence of its 
 being the resort of persons of ill-fame. That which con- 
 stitutes or causes the nuisance may be removed ; thus if a 
 house is used for the purpose of a trade or business, by 
 which the health of the public is endangered, the nuisance 
 may be abated, by removing whatsoever may be necessary 
 to prevent the exercise of such trade or business ; so a 
 house in which gaming is carried on, to the injury of the 
 
 1 Theilanc. Porter, 14 Lea, 622 (52 Am. Rep. 173). 
 
442 POLICE REGULATION OF REAL PROPERTY. 
 
 public morals ; the individual by whom it is occupied may 
 be punished by indictment and the implements of gaming 
 removed ; and a house in which indecent and obscene pict- 
 ures are exhibited is a nuisance, which may be abated by 
 the removal of the pictures. Thousands of young men are 
 lured to [some of] our public theaters, in consequence of 
 their being a resort, nightly, of the profligate and aban- 
 doned ; this is a nuisance. Yet in this, and in the other 
 cases stated, it will not be contended that a person would 
 be justified in demolishing the house, for the obvious reason 
 that to suppress the nuisance such an act was unnecessary. 
 So in the case before us the nuisance was not caused by the 
 erection itself, but by the persons who resorted there for 
 the purpose of prostitution. The authority given to the 
 town to suppress bawdy houses does not support and au- 
 thorize an ordinance directing the demolition of buildings, 
 in which such nuisance is committed." ^ 
 
 § 123. How far use of land may be controlled by re- 
 quirement of license? — Inasmuch ascertain uses, to which 
 lands may be put, require police regulation and supervision, 
 in order to prevent the threatened public injury, by bring- 
 ing those cases within the strict control of the police, it is 
 quite reasonable for the State to require the issue of li- 
 censes, before it is lawful to do those things upon the land, 
 which are likely to endanger the public welfare in any way. 
 For example, in order to enforce the law against the erection 
 or enlargement of wooden buildings, it would be reason- 
 able to require a permit or license, before one can law- 
 fully make any improvement or repairs to his buildings.^ 
 In the same manner may the city require a license or per- 
 mit to construct any kind of building, so that it may take 
 the proper precautions against the danger to the public, 
 
 1 Welch V. Stowell, ? Dougl. (Mich.) 332. 
 ' Welch ». Hotchklss, 39 Conn. 140 (12 Am. Eep. 383). 
 § 123 
 
USE OF LAND CONTROLLED BY LICENSE. 443 
 
 resulting from house-building. This is a very common po- 
 lice regulation. The requirement of a license and of a small 
 license fee, large enough to cover the cost of issuing the li- 
 <;ense, and of maintaining the necessary police supervisions 
 cannot be questioned in any case where the act or thing, 
 for which the license is required, contains some element of 
 •danger to the public. All such uses of lands are subject to 
 police regulation, and the legislature is the supreme judge 
 of the ki nd of regulation that the public welfare requires, 
 subject only to the power of the court to confine all police 
 regulations to the prevention of the threatened public 
 injury. But one does not need any license from the State, 
 nor can he be required to procure one, to make a harmless 
 use of his lands. His right to use them is a natural right, 
 -which he possesses independently of positive or statutory 
 law.^ A.S has been already fully explained,^ a license, 
 strictly so-called, is an authority to do that, which on ac- 
 count of its possible danger to the public is subjected to 
 police regulation, and which for that reason is rightly de- 
 clared to be unlawful without the license. It is not required 
 ■of the 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 in- 
 stituted to avert or regulate some threatened public injury. 
 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 
 liarmful to the public ; the license tax must be tested by the 
 •consideration of the constitutional restrictions upon the 
 
 ' See Ah He ». Crippen, 19 Cal. 491 ; Ah Lew v. Choate, 24 Cal. 562, In 
 which it was held that a man's right to mine on his own land cannot be 
 controlled by the imposition of a license. 
 
 2 See ante, § 101, in which the whole subject of licenses, as distinguished 
 from taxation, is exhaustively treated. 
 
 § 123 
 
444 POLICE EEGULATION OF REAL PROPERTY. 
 
 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 
 
 § 124. Improvemeiit 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 responsi- 
 ble 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 ip 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 cf his swamp. The owner of land is responsi- 
 ble for the injury or annoyance flowing from the construc- 
 tion 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 afi'ect 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 con- 
 tinuance ; and the State may remove such a nuisance, with 
 or without the owner's consent, provided the expense of 
 
 1 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 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 " t he construction 
 of such vaults. But see ante, § 101. 
 
 2 Reeves v. Treasurer, 8 Ohio St. 333. 
 
 § 124 
 
IMPROVEMENT OF PROPEETr. 445 
 
 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 drain- 
 age shall be imposed upon the owner. The constitutional- 
 ity of such legislation has, as a reasonable exercise of 
 the police power of the State, been generally sustained,^ 
 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 en- 
 tire 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 
 
 1 Donnelly v. Decker, 58 Wis. 461 (46 Am. Eep. 637) ; Norfleet v. Crom- 
 well, 70 N. C. 634 (16 Am. Rep. 787); Anderson v. Kerns, 14 Ind. 199; 
 O'Reilly ». 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; PhiUips v. Wick- 
 ham, 1 Paige, 590; Sessions v. Crunkleton, 20 Ohio St. 349; Bancroft v. 
 Cambridge, 126 Mass. 438; Dingley v. Boston, 100 Mass. 544; Davidson «. 
 New Orleans, 96 U. S. 97; Hadgar v. Supervisors, 47 Cal. 222. 
 
 ' Donnelly v. Decker, 58 Wis. 461 (46 Am. Rep. 637). 
 
 § 124 
 
446 POLICE REGULATION OF REAL PROPERTY. 
 
 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 
 benefits so imparted to them, and any additional assessment 
 is unconstitutional.^ All the cases agree that the compul- 
 sory drainage is never justifiable except when the public 
 health requires it. It can never be ordered purely for pri- 
 vate gain .* 
 
 ' Pequest Case, 41 N. J. L. 176; Tidewater Co. v. Coster, 8 C. E. Green, 
 618 ; State v. Driggs Drainage Co., 46 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 WoodrufiE v. Fisher, 
 17 Barb. 234, 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.. New York, 8 Wend. 85 (22 Am. Deo. 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 Elver 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 pro- 
 mote public health. And one question that arises is, whether the c wners 
 of large tracts of land in a state of nature can be taxed to pay the ex- 
 pense 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 certein persons against 
 their will, to drain the lands 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." 
 
 § 124 
 
IMPROVEMENT OF PEOPEKTr. 447 
 
 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 caus es of injury to the public health, it 
 cannot be denied that the State may, by appropriate legis- 
 lation, 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 cost 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 purcjasers 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 inter- 
 ference 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 equit- 
 able 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 improve- 
 ments to his lands, which he did not order and does not 
 want, as to impose on him the entire cost of removing a 
 
 § 124 
 
448 POLICE REGULATION OF REAL PROPERTY. 
 
 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. 
 As taxation, this special assessment would seem to offend 
 the constitutional provisions, which require that all taxation 
 shall be equally distributed.^ 
 
 Section 125. Eegulation of non-navigable streams — Fisheries. 
 
 125a. Conversion of non-navigable into navigable streams. 
 
 § 125. Kegulation of non-naTlgable streams — Fish- 
 eries. — Where two tracts of land are divided by a naviga- 
 ble stream , the general rule is that the boundary line is the 
 low water mark on the adjoining shore, and the soil or bed 
 of the stream is the properly of the State.* But if the 
 stream is not navigable, the boundary line is the center of 
 the current of the stream, commonly called the Jilum aquce, 
 and the owners of the shore have a right of property in the 
 bed of the stream up to this Jilum aquce. In neither case 
 does any one acquire any exclusive right of property in 
 the stream of water. The riparian owner, in the case of a 
 non-navigable stream, may make a reasonable use of the 
 water, even appropriating absolutely a portion of it, in the 
 form of water or of ice, but no one has a right to assume, 
 absolute control of the stream, unless from beginning to 
 end it lies wholly within his lands. Where a non-navigable 
 stream passes over the lands of two or more adjacent own- 
 ers, the adjacent riparian owners have mutual easements 
 upon the soil of each for the free and unrestricted flow of 
 the water. The riparian owners have the right to use the 
 water to a reasonable extent, but can not so use it as to di- 
 
 1 See post, § 129. 
 
 ^ As to what Is, and is not, a navigable stream, see Tiedeman on Real 
 Property, § 835 ; 1 Washb. on Real Prop. 413 ; and cases cited in these 
 treatises. 
 
 S 125 
 
REGULATION OF NON-NAVIGABLE STREAMS. 449 
 
 ininish the flow or corrupt the water.^ It may be said with 
 truth that almost any use of a stream of water is likely to 
 corrupt it, and, in the absence of statutory regulation, what 
 is and is not a lawful use of the stream, is a judicial ques- 
 tion, to be determined by the consideration of the circum- 
 stances of the case, including the economic necessities and 
 industries of the community through which the stream 
 passes. 
 
 The maintenance of a tannery or saw mill may not be a 
 nuisance in one locality, while it may be considered one 
 in some other locality. And, independently of statute, if 
 the riparian proprietors make a certain use of a stream 
 for some time, the fact that it renders the stream unfit 
 ior another use, which some other riparian owner wishes 
 to make of it, does not make the customary use of the 
 stream a nuisance. But the legislature may, in consid- 
 eration of the public interest, prohibit any use of a non- 
 navigable stream, which interferes with another use of it, 
 when the public welfare demands that the stream should 
 be adapted to the latter use. Thus, an act of the legisla- 
 ture was declared to be constitutional, which prohibited the 
 use of all streams entering into a reservoir, in any way that 
 would pollute or corrupt the water.^ But it can hardly 
 be doubted that, if such a stream had been previously 
 used in connection with a tannery, or other business, which 
 would render the water of the stream unfit for drinking 
 purposes, the subsequent establishment of a reservoir, draw- 
 ing its water from this stream, and the prohibition of the 
 tannery or other like business, could not be sustained, so 
 far as the prohibition or destruction of the objectionable 
 business is concerned, unless provision was made for pay- 
 ment of compensation to the owner of the tannery or other 
 
 1 Washburn v. Gilman, 64 Me. 163 (18 Am. Rep. 246) ; Eichmond 
 Manuf. Co. v. Atlantic Delaine Oo., 10 E. 1. 106 (14 Am. Eep. 658) ; Jacobs 
 V. Allard, 42 Vt. 303 (1 Am. Rep. 331). 
 
 ' State V. Wheeler, 44 N, J. L. 88. 
 
 29 § 125 
 
450 POLICE EEGCLATION OF REAL PROPERTY. 
 
 like business for the loss he has thus sustained. Such a 
 prohibition would be a taking of private property for a public 
 use, within the meaning of the constitutional provision* 
 which requires the payment of compensation for the prop- 
 erty so taken. 
 
 The riparian owner is prohibited from erecting or main- 
 taining a dam across the stream, and causing an overflow 
 of the land above or diminishing the volume of the stream 
 below. ^ But whenever the public welfare requires it, or it 
 serves in any way to promote the public good, the legisla- 
 ture may authorize the construction and maintenance of such 
 dams, provided compensation is made to all riparian 
 proprietors, who may have been injured thereby.* While 
 the maintenance of a dam, without legislative sanction and 
 without the consent of the riparian owners, is a trespass, 
 if made and maintained for the statutory period of limita- 
 tion under a claim of right to do so, an absolute right 
 to its maintenance may thus be acquired ; and it has 
 been held that one, who has maintained a dam across 
 a non-navigable stream for twenty-one years, cannot be 
 required by statute to construct and maintain a passage-way 
 over the same for fish.^ The owner of the dam cannot be 
 compelled at his own expense to maintain this passage-way, 
 but the State can undoubtedly authorize those, who may be 
 thereby benefited, to construct the passage-way at their 
 expense, taking care to compensate the owner of the dam 
 for whatever damage he has suffered.* 
 
 It is not permissible at common law to divert a stream 
 from its regular channel, if by so doing injury results to the 
 
 1 Sampson v. Hoddinot, 1 C. B. (n. s.) 590; Colbum v. Richards, IS 
 Mass. 420, Anthony ». Lapbam, 5 Pick. 175. 
 
 2 Lee V. Pembroke Iron Co., 57 Me. 481 (2 Am. Rep. 69) j Gray; v. Har- 
 ris, 107 Mass. 492 (9 Am. Rep. 61); Proctor v. Jennings, 6 Nev. 83 (3 Am. 
 Rep. 240). 
 
 8 Woolever v. Stewart, 36 Ohio St. 146 (38 Am. Rep. 566). 
 
 • Commonwealth ». Pa. Canal Co., 66 Pa. St. 41 (5 Am. Rep. 329). 
 
 § 125 
 
NON-NAVIGABLE AND NAVIGABLE STREAMS. 451 
 
 owners above or below.^ Water may be diverted from the 
 channel for any reasonable use, but it can only be detained 
 as long as it is necessary and reasonable, and it must be 
 returned to the channel before it passes to the land of the 
 riparian proprietor below.'* But what would otherwise I)e 
 an unlawful or unreasonable diversion or detention of the 
 stream may be legalized by legislative authorization, upon 
 payment of compensation for all damage suffered by the 
 other riparian owners. 
 
 Another, sometimes valuable, right of property in non- 
 navigable streams, which may be subjected to police regu- 
 lation, is the right to catch the fish of the stream. The 
 riparian owners have the right to fish on their own banks, 
 and in any part of the stream which lies within their bound- 
 ary line. Unless the catching of fish is conducted with rea- 
 son, either the fish may be altogether exterminated, or the 
 enjoyment of the right by one may interfere with the equal 
 enjoyment of the right by others. For the protection of 
 the fish, and for the maintenance of equality in respect to 
 the right to fish, the State can rightly i-egulate fisheries, 
 providing that the regulations are reasonable, and do not 
 extend beyond the prevention of the threatened injuries.' 
 
 § 125a. Conversion of non-navigable into navigable 
 streams. — Whether a stream is a navigable or a non-navi- 
 
 1 Elliott ». Fltchburg P. E. Co., 10 Cash. 191; Macomber v. Godfrey, 
 108 Mass. 219 (11 Am. Rep. 349) ; Tuthill v. Scott, 44 Vt. 525 (6 Am. Bep. 
 301). 
 
 2 Clinton v. Myers, 46 N. Y. 611 (7 Am. Rep. 373) ; Arnol v. Foot, 12 
 Wend. 330; Miller «. Miller, 9 Pa. St. 74; Pools. Lewis, 46 Ga. 162 (5 
 Am. Rep. 526). 
 
 ' See Holyoke Co. v. Lyman, 16 Wall. 500 ; Commonwealth v. Chapin, 
 5 Pick. 199; Commonwealth t). Essex Co., 13 Gray, 247; Weller «. Snover,. 
 42 N.J. L. C13 Vroom), 341 ; Doughty v. Conover, 42 N. J. L. (13 Vroom), 
 192. In the last case, the statute under consideration prohibited the use- 
 of fishing nets at certain times of the year in particular counties. See, 
 also, Commrs. of Inland Fishing v. Holyoke Water Power Co., 104 Mass. 
 446 (6 Am. Rep. 247). 
 
 § 125a 
 
452 POLICE EEGULATION OF KEAL PROPERTY. 
 
 gable stream must, be determined by a consideration of its 
 condition in a state of nature. A stream that is unnavi- 
 gahle in fact cannot, by dredging and the removal of 
 obstructions, be converted into a navigable stream so as to 
 aifect the rights of the riparian owners in the stream or in 
 its bed, except in the exercise by the State of the right of 
 eminent domain. The conversion of a non-navigable into 
 a navigable stream would be a taking of private property 
 for a public use, which is only possible on payment of full 
 compensation to the riparian owners.^ It is sometimes sup- 
 posed that in the case of Carondelet Canal & Navigation 
 Co. V. Parker,^ the State undertook to convert a non-navi- 
 gable into a navigable stream without payment of compen- 
 sation to the riparian owners, and in the syllabus of the 
 case as reported in the American Reports, it is stated that 
 the State may authorize a private corporation to convert an 
 unnavigable stream into a navigable stream, and charge tolls 
 for the improvements. But a careful study of the case will 
 reveal the fact that the bayou St. John was really in legal 
 contemplation a navigable stream, although practically un- 
 navigable for most if not all commercial purposes. But, 
 on payment of compensation, the right of property in anon- 
 navigable stream may be forfeited by its conversion into a 
 navigable stream, in the same manner as all other rights of 
 property in lands must fall under the exercise of the right of 
 eminent domain. 
 
 § 126. Statutory liability of lessors for the acts of 
 lessees. — Independently of statute, the lessor is not in any 
 manner responsible for the wrongful acts of his lessee. The 
 
 1 See Hathorn v. Stinson, 12 Me. 183; Bradley o. Rice, 13 Me. 200; 
 Waterman v. JobnsoQ, 13 Pick. 261 ; Wood v. Kelley, 30 Me. 47; Paine 
 V. Woods, 108 Mass. 170, in which it has been settled that if a natural 
 pond or lake is raised by artiflcial means, the boundary line will continue 
 to be at low water mark of the pond in its natural state. 
 
 2 29 La. Ann. 430 (29 Am. Eep. 339). 
 
 § 126 
 
LIABILITY OF LESSORS FOR THE ACTS OF LESSEES. 453 
 
 owner of an estate for years in lands is, during the continu- 
 ance of the tenancy, as independent an owner, so far as 
 the liability to the State or to the individual is concerned, 
 as the tenant in fee. Certain uses of laads may be pro- 
 hibited, because of their injurious effect upon the person or 
 property of others, and the doing of such acts at once be- 
 comes unlawful. The State may punish the wrong-'doer by 
 the imposition of penalties or otherwise, and the individual 
 who has suffered damage in consequence of the wrongful 
 act, may recover damages of him in the proper action. 
 
 It is often a difficult matter to secure the enforcement of 
 a public regulation, particularly if it concerns the manner 
 of using premises, which does not involve a direct trespass 
 upon the rights of others. Inasmuch as the proprietor 
 of lands is only a tenant of the State, the terms and con- 
 ditions of whose tenancy may be so regulated as that the 
 public good may not suffer, the State may impose upon the 
 landlord the duty of securing the enforcement of the law 
 in respect to the prohibited use of the premises, by impos- 
 ingonhim a penalty for leasing his lands with the intent or 
 knowledge that the premises will be used for unlawful pur- 
 poses ; and the State may also provide it to be his duty, as well 
 as right, to enter upon the land for the purpose of forfeiting 
 the lease, whenever it comes to his knowledge that the 
 lessee is making an unlawful use of the premises. The 
 performance of this police duty may become very burden- 
 some, but the constitutionality of the law which imposes 
 it can not be questioned. Thus it has been held to be 
 reasonable to impose a penalty on the owner of a house for 
 permitting his house to be used for prostitution.' But 
 while the State may impose this police duty upon the lessor 
 to prevent the lessee from making an unlawful use of the 
 premises, he can only be required to exercise reasonable care 
 
 » McAlister ». Clark, 33 Conn. 91; People ». Erwin, 4 Den. (N.Y.) 129; 
 Territory v. Dakota, 2 Dak. 155. 
 
 § 126 
 
454 POLICE REGULATION OF REAL PROPEETr. 
 
 in the performance of the duty ; and his responsibility un- 
 der'such statutes is confined to those cases in which he has 
 actual knowledge of the wrongful use of the property. It 
 is furthermore true, that the State cannot, in imposing this 
 police duty, as was done in one case by the New York 
 legislature, declare the lessor to be responsible to third 
 persons who may have been damaged by the unlawful 
 use of the premises. The New York statute, just re- 
 ferred to, created a cause of action for damages in favor 
 of the person or property which was damaged by the act 
 of an intoxicated person against the owner of real property, 
 whose only connection with the injury is that he leased the 
 premises where the liquor causing the intoxication was sold 
 or given away, with the knowledge that intoxicating liquors 
 were to be sold thereon. The act was declared by the New 
 York Court of Appeals to be constitutional,^ but we hope 
 to show that it was an amazing, and altogether unconstitu- 
 tioniil, interference with civil liberty and private property. 
 The language of the court indicates that they appreciated 
 the practical scope and effect of the statute, and it will be 
 profitable for the reader to quote from the opinion of the 
 court, in describing the character of this piece of legislation. 
 The court say : "To realize the full force of this inquiry 
 it is to be observed that the leasing of premises to be 
 used as a place for the sale of liquors is a lawful act, nob 
 prohibited by this or any other statute. The liability of 
 the landlord is not made to depend upon the nature of 
 the act of the tenant, but exists irrespective of the fact 
 whether the sale or giving away of the liquor was lawful 
 or unlawful, that is, whether it was authorized by the li- 
 cense law of the State, or was made in violation of that law. 
 Nor does the liability depend upon any question of negli- 
 gence of the landlord in the selection of the tenant, or of 
 the tenant in selling the liquor. Although the person to 
 
 1 Bertholf v. O'Reilly, 7i N. Y. 509 (30 Am. Rep. 323). 
 § 126 
 
LIABILITY OF LESSORS FOR THE ACTS OF LESSEES. 455 
 
 ■whom the liquor is sold is at the time apparently a man 
 of sober habits, and, so far as the vendor knows, one whose 
 appetite for strong drink is habitually controlled by his rea- 
 son and judgment, yet if it turns out that the liquor sold 
 causes or contributes to the intoxication of the person to 
 whom the sale or gift is made, under the influence of which 
 te commits an injury to person or property, the seller and 
 his landlord are by the act made jointly and severally re- 
 sponsible. The element of care or diligence on the part of 
 the seller or landlord does not enter into the question of 
 liability. The statute imposes upon the dealer and the 
 landlord the risk of any injury which may be caused by the 
 traffic. It cannot be denied that the liability sought to be 
 imposed by the act is of a very sweeping character, and 
 may in many cases entail severe pecuniary liability ; and its 
 language may include cases not within the real purpose of 
 the enactment. The owner of a building who lets it to be 
 occupied for the sale of general merchandise, including 
 wines and liquors, may under the act be made liable for 
 the acts of an intoxicated person, where his only fault is 
 that he leased the premises for a genei-al business, includ- 
 ing the sale of intoxicating liquors, in the same way as 
 other merchandise. The liability is not restricted to the 
 results of intoxication from liquors sold or given away to 
 be drunk on the premises of the seller. There is no way 
 by which the owner of real property can escape possible 
 liability for the results of intoxication, where he leases or 
 permits the occupation of his premises, with the knowl- 
 edge that the business of the sale of liquors is to be carried 
 on upon the premises, whether alone or in connection with 
 other merchandise, or whether they are to be sold to be 
 drunk on the premises or to be carried away and used else- 
 where." In declaring the act to be constitutional, the 
 court continue: "There are two general grounds upon 
 which the act in question is claimed to be unconstitutional ; 
 first, that it operates to restrain the lawful use of real 
 
 § 126 
 
456 POLICE REGULATION OF REAL PROPERTT. 
 
 property by the owner, inasmuch as it attaches to the par- 
 ticular use a liability, which substantially amounts to 
 prohibition of such use, and, as to the seller, imposes a. 
 pecuniary responsibility, which interferes with the traffic in 
 intoxicating liquors, although the business is authorized by 
 law ; and, secondly, that it creates a right of action unknown 
 to the common law and subjects the property of one person 
 to be taken in satisfaction of injuries sustained by another, 
 remotely resulting from an act of the person charged, which 
 act may be neither negligent nor wrongful, but may be 
 in all respects in conformity with the law. * » » xhe 
 right of the State to regulate the traffic in intoxicating- 
 liquors, within its limits, has been exercised from the found- 
 ation of the government, and is not open to question. 
 The State may prescribe the persons by whom and the con- 
 ditions under which the traffic may be carried on. It may- 
 impose upon those who act under its license such liabilities 
 and penalties as in its judgment are proper to secure soci- 
 ety against the dangers of the traffic and individuals against 
 injuries committed by intoxicated persons under the influ- 
 ence of or resulting from their intoxication. • • * jj^ 
 is quite evident that the act of 1873 may seriously interfere 
 with the profitable use of real property by the owner. 
 This is especially true with respect to a building erected 
 to be occupied as an inn or hotel, and especially adapted to 
 that use, where the rental value may largely depend upon the 
 right of the tenant to sell intoxicating liquors. The owner 
 of such a building may well hesitate to lease his property 
 when by so doing he subjects himself to the onerous liabil- 
 ity imposed by the act. The act in this way indirectly 
 operates to restrain the absolute freedom of the owner iu 
 the use of his property, and may justly be said to impair 
 its value. But this is not a taking of his property within 
 the constitution. He is not deprived either of the title or 
 the possession. The use of his property for any other law- 
 ful purpose is unrestricted, and he may let or use it as a 
 § 126 
 
LIABILITY OP LESSOKS FOR THE ACTS OF LESSEES. 457 
 
 place for the sale of liquors, subject to the liability which 
 the act imposes. The objection we are now considering 
 would apply with greater force to a statute prohibiting, 
 under any circumstances, the traffic in intoxicating liquors, 
 and as such a statute must be conceded to be within the 
 legislative power, and would not interfere with any vested 
 rights of the owner of real property, although absolutely 
 preventing the particular use, a fortiori the act in question 
 does not operate as an unlawful restraint upon the use of 
 property. * * * The act of 1873 is not invalid be- 
 cause it creates a right of action and imposes a liability not 
 known to the common law. There is no such limit to leg- 
 islative power. The legislature may alter or repeal the 
 common law. It may create new oflFenses, enlarge the 
 scope of civil remedies, and fasten responsibility for injur- 
 ies upon persons against whom the common law gives no 
 remedy. We do not mean that the legislature may impose 
 on one man the liability for an injury suflFered by another, 
 with which he has no connection. But it may change the 
 rule of the common law which looks only to the proximate 
 cause of the mischief, in attaching legal responsibility, and 
 allow a recovery to be had against those whose acts con- 
 tributed, although remotely, to produce it. This is what 
 the legislature has done in the act of 1873. That there is 
 or may be a relation in the nature of cause and effect, 
 between the act of selling or giving away intoxicating 
 liquors, and the injuries for which a remedy is given, is 
 apparent, and upon this relation the legislature has pro- 
 ceeded in enacting the law in question. It is an extension 
 by the legislature of the principle, expressed in the maxim 
 sic utei'e tuo ul alienum non Icedas to cases to which it has 
 not before been applied, and the propriety of such an 
 application is a legislative and not a judicial question." ^ 
 Conceding that the sale of intoxicating liquors may be 
 
 1 Bertholf v. O'BeUly, 74 N. Y. 524 (30 Am. Eep. 323). 
 
 § 126 
 
458 POLICE REGULATION OF REAL PROPERTY, 
 
 prohibited altogether, or subjected to whatever other police 
 regulations the legislature may see fit to impose, and this 
 we do not admit to be true, without most material qualifi- 
 cations,^ the claim is still made that this kind of legislation 
 is unconstitutional. The State may impose upon the lessor 
 the police duty of preventing, as far as it lies in his power, 
 the lessee from making an unlawful use of the premises, 
 and may impose upon him penalties for his failure to eject 
 the lessee. This is a legitimate police regulation. It is 
 simply compelling the owner of property to perform a duty 
 to the public which no one can do so well as he ; and he 
 cannot complain if the profits of his property have been 
 diminished by the regulation. Neither he nor his lessee has 
 an indefeasible right to make use of his property in a way 
 to injure another in person or property. And he as well as 
 the lessee can be made to respond in damages to any one 
 who has suflfered injury by and through his unlawful act. 
 But in order that any one may recover damages of another, 
 he must show that the damages were caused by the wrong- 
 ful act. It is only on such a showing that any one can 
 maintain a suit for damages. It is not a subject for police 
 regulation to determine what is the cause of the damage. 
 It is a judicial question of fact, to be determined in a judicial 
 inquiry, free from any control on the part of the legislature. 
 The legislature cannot determine when the legal relation 
 of cause and effect exists between two facts. It will prob- 
 ably be granted that in one sense the relation of cause and 
 effect exists between any two facts that may be selected. 
 In organized society the lives of men are so intimately 
 bound up with each other, there is so much influence and 
 counter influence, that it is diflScult to say whether anything 
 now known would have happened, if some antecedent fact had 
 not occurred, it matters not how remote. To apply the 
 
 * Tor a discussion of limitation upon the power of the government to 
 prohibit the sale of intoxicating liquors, see, ante, § 103. 
 
 § 126 
 
LIABILITY OF LESSORS FOR THE ACTS OF LESSEES. 459 
 
 reasoning to the facts of the case in question, for the pur- 
 pose of easier illustration, if the lessor had done his duty 
 to the public in preventing an unlawful use of the premises, 
 the injury to the third person would not have occurred 
 through this intoxication, but likewise the injury would not 
 have happened, if the lessee had not broken the law in 
 making the prohibited use of the land. Nay, further, the 
 joint wrongful acts of the lessor and lessee would not have 
 caused the injury, if the purchaser had not been guilty of 
 the vice, and, under the peculiar circumstances of the pres- 
 ent case, the crime, of intoxication. Here are three un- 
 lawful acts, following each other in the order of sequence, 
 followed by an injury to a third person. The common-law 
 rule, which made the proximate cause responsible for the 
 damage, to the exclusion of the remote cause, would have 
 declared the intoxicated person to be alone responsible. 
 Indeed, when one considers the fact that the same damage 
 could have been caused as easily by an intoxication pro- 
 duced by liquor bought from some other dealer, within or 
 without the State in which the sale of it is prohibited or 
 regulated, and as easily, whether the lessor did or did not 
 know of the sale of the liquor by his lessee ; when it is still 
 further considered that in the New York case there would 
 have been no violation of law, had no injury been inflicted 
 on another by the intoxicated person, the conclusion become 
 irresistible that the damage was not caused by the wrongful 
 act of the lessor or the lessee. The New Yoi-k court holds 
 that the legislature " may change the rule of the common 
 law, which looks only to the proximate cause of the mischief, 
 in attaching legal responsibility and allow a recovery to be 
 had against those whose acts contribute, although remotely, 
 to produce it. " If this rule of the common law was itself 
 a police regulation, it would of course be subject to legis- 
 lative change ; but it has been established by the accu- 
 mulated experience of ages as the best rule for the 
 ascertainment of the cause of a damage, and is no more 
 
 § 126 
 
460 POLICE REGULATION OF REAL PROPERTY, 
 
 subject to legislative change than is the law of gravitation.^ 
 This subject, and the facts of this particular case,'' has 
 been given this extended consideration, because it was 
 an extraordinary exercise of police power, and furnished a 
 most striking exarople of the great uncertainty that now 
 prevails in the legal minds of this country, concerning the 
 constitutional limitations upon the police power of the gov- 
 ernment. 
 
 § 127. Search Warrants — Sanitary Inspection. — The 
 
 security of the privacy of one's dwelling, not only against 
 private individuals, but also as against the officers of the 
 law, or the frequent and unrestrained interference with this 
 privacy by the common jjolice officers, more than anything 
 else distinguishes a free country, one governed by officials 
 under constitutional limitations, from a country, in which 
 political absolutism is checked only by the limitations of 
 nature. The dwelling of the continental European, partic- 
 ularly the Frenchman, must open at the command of the 
 police officer, whenever a crime has been committed, and 
 suspicion rests upon him. His closets and other private 
 apartments are broken open, his private papers ruthlessly 
 scattered about or taken away, to be subjected to the 
 inspection of some other official without any specific descrip- 
 tion of the persons or things which are to be apprehended ; 
 and without any proof beyond a mere suspicion, that the 
 house contains the person or thing sought for. But under a 
 constitutional government, of which the liberty of the citizen 
 is the corner stone, the privacy of one's dwelling is rarely 
 ever invaded, and then only in extreme cases of public 
 necessity, and under such limitations as will serve to protect 
 the citizen from any unusual disturbance of his home life. 
 The common law maxim, " Every man's house is his castle" 
 
 1 See, ante, | 68, for a further and more general discussion of this 
 question of remote and proximate cause. 
 " Bertholf v. O'Eeilly, supra. 
 § 127 
 
SEARCH WARRANTS SANITARY INSPECTION. 461 
 
 is guaranteed in this country by an express constitutional 
 provision, which declares that " the right of the people to 
 be secure in their persons, houses, papers, and effects, 
 against unreasonable searches and seizures, shall not be 
 violated ; and no warrants shall issue but upon probable 
 cause, supported by oath or affirmation, and particularly des- 
 cribing the place to be searched, and the persons or things to 
 be seized." ^ Except in accordance with, and under the re- 
 strictions of this, constitutional provision, one may close his 
 doors against all intruders, and resist their entrance by the 
 use of all the force that may be necessary for the protection 
 of the property, even to the extent of taking the life of the 
 trespasser.' The constitutional guaranties of the security 
 of one's dwelling enable the Englishman and American to 
 feel that there is a reality in these beautiful words of Lord 
 Chatham, which have been so often quoted : " The poorest 
 man may, in his cottage, bid defiance to all the forces of 
 the crown. It may be frail ; its roof may shake ; the wind 
 may play through it ; the storm may enter ; the rain may 
 enter ; but the King of England may not enter ; all his 
 force dares not cross the threshhold of the ruined tene- 
 ment." 
 
 But the necessities of organized society do require that 
 at times the doors of the private dwellings shall be opened 
 for the admission of the officers of the law, and principally 
 as an aid to the prosecution of criqjes. But, before that 
 is permissible, a search warrant must be obtained from a 
 court of competent jurisdiction, which is authorized bylaw 
 to grant it ; it must be Issued to an officer of the law, and 
 never to the complainant; it can only be granted upon a 
 showing of probable cause for believing that a proper case 
 has arisen for the exercise of this police power ; and lastly, 
 
 1 U. S. Const. Amend., § art. 4. Similar provisions are to be found 
 in each of the State constitutions. 
 
 2 Bohannani). Commonwealth, 8 Bush, 481 (8 Am. Eep. 474) ; Pond v. 
 People, 8 Mich. 150. 
 
 § 127 
 
462 POLICE REGULATION OF HEAL PROPERTY. 
 
 the warrant must contain a particular description of the 
 premises to be searched, and the person or things to be 
 talien into custody.^ A failure to comply with any one of 
 these requirements will render the warrant defective, and 
 the entrance into the dwelling under it an unlawful inva^ 
 sion. In other countries search warrants are issued upon 
 the barest suspicion that the house contains a criminal or 
 things that are for some reason subject to seizure, and often, 
 too, for the sole purpose of procuring evidence wherewith 
 to convict the criminal. The only fact that is required t» 
 be established hy prima facie evidence is that a crime has 
 been committed by some one, known or unknown, it mat- 
 ters not which, and it is in the judgment of the police 
 officer advisable that a particular house shall be searched in 
 the interest of justice. 
 
 Under no circumstances can a search warrant be issued in 
 this country for the sole purpose of securing the necessary 
 evidence for the State. Whenever the police officer shows 
 probable cause for believing that stolen goods are secreted 
 in the house of the supposed thief or some other person, 
 and in all other cases where the house contains the goods, 
 the possession and use of which constituted the crime, that 
 house may be searched, and so far, and in these cases, the 
 State may, with the aid of a search warrant, procure evidence 
 of the guilt of the accused. But ordinarily this is not per- 
 mitted. A man's letters and papers and other effects can- 
 not be searched in the aid of a criminal prosecution against 
 him. Not only is this prohibited by the spirit of the con- 
 stitutional provision in reference to the issue of search 
 warrants, but likewise by another provision^ which pro- 
 vides that no one "shall be compelled in any criminal 
 
 1 Bishop Crim. Procedure, §§ 240-246, 716-719; 2 Hale P. C. 142, 160; 
 Archbold Cr. Law, 145, 147. 
 
 2 U. S. Const. Amend, art 5. The same provision is to be found in 
 most, if not all, of the State constitutions. 
 
 § 127 
 
SEARCH WAERANTS — SANITARY INSPECTION. 463 
 
 case to be a witness against himself." * But, as al- 
 ready stated, where the crime or misdemeanor consists 
 of the possession or use of things, which are pro- 
 hibited by the law, either because of their injurious effect 
 upon the public, or because the goods belong to another, or 
 when there is an unlawful detention of persons, search war- 
 rants may be issued for their recovery, when satisfactory 
 evidence of their being stored in a particular dwelling is 
 presented to the judicial officer who issues the warrant. 
 Thus search warrants have been granted to search for 
 stolen goods, for counterfeit money, forged bills and notes, 
 for goods held in violation of the revenue laws of the 
 United States * in violation of the laws against lotteries and 
 gambling in general * for obscene publications and intoxi- 
 cating liquors kept in violation of the liquor laws * and for the 
 recovery of public books and records which have been taken 
 from the proper custody. Search warrants have also been 
 issued for the purpose of securing the release of females 
 supposed to be forcibly concealed in houses of ill-fame ; for 
 the recovery of minor children, who have been enticed or 
 forcibly taken away from their parents or guardian , and 
 probably in any case of probably unlawful detention of a 
 human being.* Search warrants may also be granted in aid 
 
 1 "To enter a man's house by virtue of a warrant, in order to pro- 
 cure evidence, is vyorse than the Spanish Inquisition, — a law under 
 which no Englishman would wish to live an hour." Lord Camden in 
 Bntinck v. Carrington, 19 State Trials, 1029; s. c. 2 Wils. 275; Hackle v. 
 Money, 2 Wils. 205; Leach v. Money, 19 State Trials, 1001; s. c. 3 Burr. 
 1692; s. c. 1 W.Bl. 555; Wilkes ». Wood, 19 State Trials, 1163; Archbold 
 Cr. Law, 141 ; Cooley Const. Lim. 371, 372. 
 
 2 Sandford v. Michals, 13 Mass. 286 (7 Am. Dec. 151) ; Sallee v. Smith, 11 
 Johns. 500. See Locke v. United States, 7 Cranch, 339 ; The Luminary, 
 8 Wheat. 401 ; Henderson's Distilled Spirits, 14 Wall. 44. 
 
 s Commonwealth v. Dana, 2 Met. 329; Day v. State, 7 Gill, 321 ; Low- 
 ery ». Rainwater, 70 Mo. 162 (35 Am. Rep. 420). 
 
 * State V. Brennan's Liquors, 25 Conn. 278 ; Hibbard v. People, 4 Mich. 
 125; Fisher v. McGirr, 1 Gray, 1; Grayc. Kimball, 42 Me. 299; Allen v. 
 Colby, 47 N. H.445. 
 
 5 Cooley Const. Llm. 372. 
 
 § 127 
 
464 POLICE REGCLATION OF REAL PKOPEETT. 
 
 of those sanitary and other police regulations, which are 
 designed to prevent the storage of gunpowder or other 
 explosive or inflammable materials in such large quantities 
 that it will endanger the public safety, or to check or regu- 
 late the accumulation of offal or garbage to the injury 
 of the public health. It would also be a reasonable regula- 
 tion to compel the search of the house or premises for the 
 discovery of persons suffering from some dangerously 
 infective disease, and whom the law required to be cared 
 for in the public lazaretto ; or to see that after the recovery 
 of such a person from an infectious disease the house is 
 properly disinfected. In consideration of the reasonable- 
 ness of these sanitary regulations, it is supposed that in the 
 enforcement of them, one's house may be searched in op- 
 position to his wishes and by force, without a search war- 
 rant.^ But it is probable that in a clear case of the 
 resistance of the entrance of the health officer, a search war- 
 rant would be required. These regulations are however so 
 reasonable'that it is rarely, if ever, necessary for the officer to 
 do more than to show his general authority. 
 
 The search warrant cannot be issued in aid of civil pro- 
 cess, but one may be ejected from his dwelling in 
 pursuance of a decree of ejectment without a formal 
 search warrant.^ As a general proposition an officer may 
 go to serve a process wherever the subject-matter of the 
 process may be. But, except for the purpose of making 
 
 ' Cooley's Principles of Const. Law p. 211. 
 
 2 " Search warrants were never recognized by the common law as 
 processes which might be availed of by individuals in the course of civil 
 proceedings, or for the maintenance of any mere private right; but their 
 use was confined to the case of public prosecutions instituted and pur- 
 sued for the suppression of crime, and the detection and punishment of 
 criminals. Even in those cases, if we may rely on the authority of Lord 
 Coke, their legality was formerly doubted; and Lord Camden said they 
 crept into the law by imperceptible practice. But their legality has 
 long been considered to be established on the ground of public necessity; 
 because without them felons and other malefactors would escape de- 
 tection." Merrick, J., in Robinson v. Richardson, 13 Gray, 456. 
 § 127 
 
SEARCH WARRANTS SANITARY INSPECTION. 465 
 
 an arrest or seizure in criminal cases and in the few cases 
 in wliich search warrants are issued in the enforcement of 
 sanitary and other police regulations, the service of pro- 
 cess is subject to this limitation, that the officer cannot 
 break open the outer door. But if the outer door is found 
 open, the officer may break open any inner door, if that be 
 necessary for the service of the process.^ 
 
 Another important requisite, is that the warrant must 
 specify and describe particularly the place to be searched, 
 and the person or thing sought after. The description of 
 the house must be sufficiently particular, in order that it 
 may be distinguished from others. A description that is 
 equally applicable to two or more buildings is defective, and 
 an erroneous or defective description will vitiate the war- 
 rant, and make the entrance under it an unlawful tres- 
 pass.^ If a warrant is issued to search a dwelling-house, 
 the adjoining barn cannot under this warrant be forcibly 
 entered. ^ The same regulations apply to the persons or 
 things to be taken into custody. They must be particularly 
 described, in order that the warrant may be free from ob- 
 jection. The warrant for the arrest of a person under a 
 fictitious name, without any further description, whereby 
 he may be identified, would be defective,* and so likewise 
 if the things to be seized are described generally as " goods, 
 
 ' Semayne's Case, 5 Co. 91 ; Smith Lead. Cas. 213 ; Ilsley v. Nichols, 
 12 Pick. 270; Swain v. Mizner, 8 Gray, 182; Oystead v. Shed, 13 Mass. 
 520; People v. Hubbard, 24 Wend. 369; Snydeckerw. Brosse, 31 111. 357; 
 BaUeyo. Wright, 38 Mich. 96. 
 
 ' Sandford v. Nichols, 13 Mass. 286 (7 Am. Dec. 151) ; Allen v. 
 Staples, 6 Gray, 491; McGlinchy v. Barrows, 41 Me. 74; Humes u. 
 Tabor, 1 R. I. 464; Ashley u. Peterson, 25 Wis. 621; Bell v. Rice, 2 J. J. 
 Marsh. 44 (9 Am. Dec. 122). 
 
 'Jones V. Fletcher, 41 Me. 254; Downing v. Porter, 8 Gray, 539; 
 Bishop Cr. Procedure, §§ 716, 719. And when a building is to be 
 searched, It is usually necessary to give the name of the owner or occu- 
 pant. Stone V. Dana, 5 Met. 98. 
 
 * Commonwealth v. Grotty, 10 Allen, 403. 
 
 30 § 127 
 
466 POLICE REGULATION OF REAL PROPERTY, 
 
 wares and merchandise."^ It is considered highly objec- 
 tionable, on principle, for the warrant to be used in the 
 night time ; and while there is no constitutional provision 
 which prohibits a search under a warrant in the night, 
 statutes invariably provide that the search shall be made 
 in the day, except in a few urgent cases of felony.* 
 
 It is also necessary for the warrant to direct that the 
 person or things seized shall, if found, be taken to the 
 magistrate, who issued the warrant, in order that there 
 may be a judicial examination of the facts, and a disposition 
 of the persons or things according to law. A search warrant 
 is fatally defective, which does not provide for this- 
 subsequent judicial examination, but leaves the dispositiou 
 of the person or things to the judgment of the ministerial 
 officer.* 
 
 When the warrant complies with all the requirements of 
 the law, the officer is protected from liability in damages 
 for whatever force he may find it necessary to use in the 
 execution of the warrant, even though the persons or things- 
 sought after should not be found.* But he must keep 
 strictly within the limits of his warrant, and should he 
 enter dwellings, arrest persons, or seize things, not falling- 
 within the description contained in the warrant, he is liable 
 in damages for the unwarranted trespass.^ 
 
 § 128. Quartering soldiers in private dwellings. — It 
 
 1 Sandford v. Nichols, 13 Mass. 286 (7 Am. Dec. 151). 
 
 » 2 Hale P. C. 150; Cooley Const. Lim. 370. 
 
 8 2 Hale P. C. 150 ; Fisher v. McGirr, 1 Gray, 1 ; Greene «. Briggs, 1 
 Curt. 311 ; State v. Snow, 3 B. I. 64 ; Bell v. Clapp, 10 Johns. 263 (6 Am. 
 Dec. 339); Hibbard v. People, 4 Mich. 126; Matter of Morton, 10 
 Mich. 208; Sullivan v. Oneida, 61 111. 242; Lowry v. Rainwater, 70 Mo. 
 152 (35 Am. Rep. 420) ; Hey Sing Jeck v. Anderson, 67 Cal. 251. 
 
 < 2 Hale P. C. 151; Barnard o. Bartlett, 10 Cush. 501; Cooley Const. 
 Lim. 374. 
 
 6 Crozier v. Cudney, 6 B. & C. 232; 9 D. & R. 224; State v. Brennan'a 
 Liquors, 25 Conn. 278. 
 § 128 
 
TAXATION — KINDS OF TAXES 467 
 
 is provided by the United States constitution,^ and by 
 almost every State constitution, that " no soldier shall in 
 time of peace be quartered in any house without the con- 
 sent of the owner, nor in time of war, but in a manner to 
 be prescribed bylaw." At the present time, and in this 
 country, the necessity for this constitutional provision does 
 not seem to be very urgent, and it is not. But at the time 
 when the provision was incorporated into the constitution, 
 the practice was so common in some countries, and the 
 danger of its being generally adopted in our own country 
 [it had in colonial days been occasionally resorted to] 
 appeared to be sufficiently imminent in order to justify its 
 enactment. It is well that there should be an unequivocal 
 declaration on so important a matter ; for no more efficient 
 means of oppression of a people can be devised than the 
 power, at all times and without any limitation, to throw 
 upon an objectional person the burden of housing and sup- 
 porting a company of soldiers. The constitutional pro- 
 vision just cited, protects the house of the citizen against 
 all such intrusions in time of peace, and in war the matter 
 is required to be specially regulated by law. It is safe to 
 say, however, that, with the present temper of public opin- 
 ion, the exercise of this power would not be tolerated 
 now, even in time of war, unless provision is made for the 
 full compensation of those on whom this burden should be 
 made to fall.^ 
 
 Section. 129. Taxation — Kinds of taxes. 
 
 129a. Limitations upon legislative authority. 
 
 § 129. Taxation — Kinds of taxes. — The functions of a 
 government can only be exercised and kept iu operation 
 with the aid of material means furnished by the people ; 
 
 ' U. S. Const. Amend., art. 3. 
 
 * See post, § 137, in reference to forcible appropriation of private 
 property in time of war. 
 
 § 129 
 
468 POLICE REGULATION OF REAL PROPERTY. 
 
 and no government could be properly called stable, which 
 had to depend upon voluntary contributions. The exaction 
 of these means, therefore, is a power which a government 
 inherently and necessarily possesses without any express 
 grant. A tax, is, in its most comprehensive sense, any 
 charge or assessment levied by the government for public 
 purposes upon the persons, property, and privileges of the 
 people within the taxing district or State. It is a forced con- 
 tribution of means towards the support of the government. 
 Taxes may assume very many forms, varying according 
 to the thing, privilege, or right which is taxed. They may 
 take the form of duties, imposts and excises, and the taxes 
 imposed by the general government are confined to these. 
 The power to impose these indirect taxes is expressly 
 granted to the United States government. The constitu- 
 tion provides ^ that " the congress shall have power to levy 
 and collect taxe,s, duties, imposts, and excises to pay the 
 debts, and provide for the common defense and general wel- 
 fare of the United States ; but all duties, imposts and excises 
 shall be uniform throughout the United States." Duties and 
 imposts are the taxes levied upon importations into this 
 country, and under this express power it is claimed that 
 the general government may establish a protective tariff, 
 which has already been shown to be in violation of consti- 
 tutional liberty.^ Excises are the taxes laid upon the man-- 
 ufacture and sale of articles of merchandise, upon licenses 
 to follow certain occupations, and upon the enjoyment of 
 franchises or privileges. The internal revenue tax upon 
 the manufacture and sale of intoxicating liquors and tobacco 
 are at present the only excises levied by the general gov- 
 ernment.* But there is no limitation upon the power of the 
 
 1 Const. U. S., art. I, § 8, ch. 1. 
 
 ' See a»«e, § 91. 
 
 ' Since the above was written at the last session ol Congress, 1885- 
 1886, a law was passed imposing a tax upon the sale and manufacture of 
 oleomargarine. 
 § 129 
 
' TAXATION KINDS OF TAXES. 469 
 
 government in selecting the subjects of taxation ; and dur- 
 ing the late civil war, and immediately thereafter, there 
 were taxes, in the form of stamp duties on matches, bank 
 checks, legal papers and the like. The United States 
 government is also authorized by the constitution to im- 
 pose direct taxes, which has been held to include any capi- 
 tation and land taxes,^ subject to the limitation that they 
 must be apportioned among the several States according to ' 
 the representative population.* 
 
 A very common form of State and municipal taxation is 
 the exaction of license fees for the privilege of pursuing 
 any occupation or profession, a tax, therefore, upon occu- 
 pations. The constitutional character of the license tax, 
 and its points of distinction from the license fee exacted in 
 connection with the police regulation of an occupation, the 
 pursuit of which is likely to prove dangerous or injurious to 
 society, have already been fully explained in another place,' 
 and need not be discussed in this connection. The States 
 have also at times imposed a poll-tax upon the citizen, and 
 made the payment of it a condition precedent to the exercise 
 of the right of suffrage. But this mode of taxation incurs 
 great popular disfavor, and is very rarely, if at all, employed 
 now. The most common form of State and municipal 
 taxation is the taxation of property, both real and personal, 
 and there is a fundamental difference between the charac- 
 ter of taxation generally, including the taxation of personal 
 property, and the character of taxation of real property. 
 Taxation, generally, is imposed upon citizens and resident 
 aliens, resting upon the permanent or temporary allegiance 
 they owe to the government ; and they are supposed to re- 
 
 1 Hylton V. United States, 3 Ball. 171; Pacific Ins. Co. v. Soule, 7 
 Wall. 433 ; Veazie Bank v. Fenno, 8 Wall. 633 ; Springer v. United States, 
 192 U. S. 586. 
 
 ' Const. U. S. art. I, § 2; art. I, § 9. 
 
 8 See ante, § 101. 
 
 § 129 
 
470 POLICE REGULATION OF EEAL PROPERTY. 
 
 ceive a fair equivalent for these involuntary contributions 
 in the domestic peace and order, and the protection to their 
 rights of person and property, which a stable government 
 ensures. The obligation to pay taxes in such cases rests 
 upon the fact of domicile and citizenship. But the taxation 
 of real property rests upon other grounds. In its applica- 
 tion to real property, taxation assumes a decidedly feudal 
 character. If the power to tax real property rested solely 
 upon the obligations of citizenship or domicile, as most of 
 the legal authorities seem to hold,^ then it could only be 
 levied upon those proprietors of lands who were citizens. 
 At the time when the earlier cases, which have been cited, 
 were decided, no one but a citizen could become the pro- 
 prietor of lands in the United States, and this coincidence 
 no doubt caused the learned judges to malie the statements, 
 upon which the claim of a connection between citizenship 
 and taxation of real property rests. But since then the 
 restriction upon the proprietorship of lands by aliens has 
 been removed in most of the States, and now all land situ- 
 ated within the jurisdiction of the government which levies 
 the tax are taxed for their proportionate share, whether 
 the land is owned by citizens or aliens, residents or non- 
 residents. The levying of a tax upon land, and the en- 
 forcement of the levy, are proceedings in rem against the 
 land, and not in personam against the proprietors.^ . 
 
 Taxation of real property is nothing more than the reditus 
 which the tenant of a feud paid to the lord of the manor 
 for the enjoyment of the land; in this country, in the case 
 
 1 Providence Bank v. Billings, 4 Pet. 661 ; McCuUoch v. Maryland, 4 
 Wheat. 428; Opinions of Judges, 48 Me. 591; People v. Mayor, etc., 4 
 N. Y. 422; Clark v. Eochester, 24 Barb. 482; PMla. Assn., etc., v. Wood, 
 39 Pa. St. 73; Moale v. Baltimore, 5 Md. 314; Doe v. Deavors, 11 Ga.79; 
 Chicago V. Lamed, 34 111. 279; Davison v. Ramsay Co., 18 Minn. 481. 
 
 2 Cooley on Tax. 360. In some of the States, however, a distinction it 
 made by statute between the resident and non-resident lands as they are 
 called, imposing a personal liability upon the owners of the resldens 
 lands. Cooley on Tax. 278, 279. 
 
 § 129 
 
LIMITATIONS UPON LEGISLATIVE AUTHORITY. 471 
 
 tenancies in fee, the State taking the place of the inter- 
 mediate landord, as in England, the king did in the case of 
 -tenancies in capite. Indeed the obligation of citizenship 
 is a modern outgrowth of the allegiance of the feudal sys- 
 tem, which the vassal or tenant of land owed through his 
 lord to the king, as the lord paramount or ultimate pro- 
 prietor of the lands of the kingdom. The obligation of 
 citizenship, apart from the obligations of a tenant of lands, 
 was unknown to the feudal age.^ But whatever may be 
 the proper theory in respect to the character and the au- 
 thority of taxation, the power of the government to levy 
 "the proportionate share of taxes upon the lands owned by 
 ^aliens has never been questioned, and an exemption of such 
 lands from the operation of the levy would most surely 
 meet with popular demonstrations of disapproval. 
 
 § 129a. liimitatlons upon legislative autbority. — The 
 
 power of a government to impose taxes is almost without 
 limitation and necessarily so, because of the varied charac- 
 ter of governmental functions and needs. Chief Justice 
 Marshall has almost denied the existence of any limitations 
 upon the power of taxation. He said, in one case, "the 
 power of taxing the people and their property is essential 
 to the very existence of government, and may be legiti- 
 mately exercised on the objects to which it is applicable or 
 the utmost extent to which the government may choose to 
 «arry it. The only security against the abuse of this power 
 is found in the structure of the government itself. In im- 
 posing a tax, the legislature acts upon its constituents. 
 This is, in general, a sufficient security against erroneous 
 and offensive taxation. The people of a State, therefore, 
 give to their government a right of taxing themselves and 
 their property ; and as the exigencies of the government 
 
 1 Tiedeman on Real Prop. § 20 ; 1 Washb. on Real Prop. 46, citing 3 
 Guiz. Hist. Civ. 108. 
 
 § 129a 
 
472 POLICE EEGULATION OF SEAL PROPERTY. 
 
 cannot be limited, they prescribe no limits to the exercise 
 of this right, resting confidently on the interest of the leg- 
 islator, and on the influence of the constituents over their 
 representative, to guard them against its abuse." It is 
 *' unfit for the judicial department to inquire what degree- 
 of taxation is the legitimate use, and what degree may 
 amount to the abuse, of the power."^ 
 
 It is undoubtedly true that the power of the legislature 
 to determine the rate of taxation is limited only by its wise 
 discretion, and may be extended so as to involve a com- 
 plete confiscation of all the taxable property within the 
 State, if the payment of such a tax could be enforced. 
 There would be no redress in the courts for such an abuse 
 of the power. It is also true that the selection of the ob- 
 jects of taxation is without limitation, except those imposed 
 by the United States constitution, and arising out of the 
 inter-relation of the Federal and State governments.^ 
 
 The State may freely determine upon what occupations^ 
 and manufactures to impose a license or excise tax, and may 
 exempt others from the burden of taxation with or without 
 laudable reasons ; it may determine what is taxable prop- 
 erty, and exempt from the levy any kind of property in the 
 exercise of its discretion. The arbitrary character of the 
 exemptions in any of these cases furnishes no ground for 
 an appeal to the courts.* But, usually, as a matter of 
 
 1 McCuUoch V. Maryland, 4 Wheat. 316, 428, 430. See, also. Provi- 
 dence Bk. V. Billings, 4 Pet. 514; Kirtland v. Hotchkiss, 100 U. S. 491; 
 Portland Bk. v. Apthrop, 12 Mass. 252; Herrick v. Eandolph, 13 Vt. 
 525; Armington v. Barnet, 16 Vt. 745; Thomas v. Leland, 24 Wend. 66; 
 People V. Mayor, etc., of Brooklyn, 4 N. Y., 491; Kirby v. Shaw, 19 Pa. 
 St. 268; Sharpless v. Mayor, etc., 21 Pa. St. 145; Weister v. Hade, 82 
 Pa. St. 474; Wlngate v. Sluder, 6 Jones (N. C), 562; West. Un.Tel. Co. 
 V. Mayor, 28 Ohio St. 621 ; Board of Education v. Mcla,ndsborough, 36 
 Ohio St. 227. 
 
 2 As to which, see post, § 210. 
 
 ' Brewer Brick Co. o. Brewer, 62 Me. 62 (16 Am. Rep. 395; Durach's 
 Appeal, 62 Pa. St. 491; Stratton v. Collins, 43 N. J. 663; New Orleans 
 
 § 129a 
 
LIMITATIONS UPON LEGISLATIVE AUTHORITY. 473 
 
 course, there is a public reason, upon which the exemption 
 may be justified. For the promotion of the public wel- 
 fare, educational and religious institutions and their prop- 
 erty are often exempted from taxation, and the right to 
 make the exemption has been rarely questioned .^ For the 
 purpose of lightening the burden of the poorer classes, 
 and relieving the State of the danger of consequent pau- 
 perism, the State may very properly exempt from taxation 
 the tools and other means of support of the wage-earner. 
 But it has been held to be unconstitutional to make exemp- 
 tions from taxation on account of sex or age, as for exam- 
 ple, widows, maids and female minors. Such an act was 
 declared to be void." Classes or kinds of property may be 
 exempted, as well as classes of persons.' But the legisla- 
 ture of the State must determine for itself what shall be 
 objects of taxation. The county or municipal authorities 
 cannot be permitted or authorized by the legislatures to 
 make the exemptions.* Statutory exemptions are always 
 very strictly construed against the individual and in favor 
 of the public;® and ordinarily a general exemption by 
 the State from taxation does not extend to assessments by 
 the municipal authorities for a local improvement. 
 
 B. Pourchy, 30 La. Ann. pt. 1, 910; New Orleans v. People's Bank, 32 
 La. Ann. 82; State v. North, 27 Mo. 464; People v. Colman, 3 Cal 46. 
 
 1 It is no violation of the constitutional principle of religious liberty 
 to exempt the property of religious institutions from taxation. Trustees 
 of Griswold College o. State, 46 Iowa, 275 (26 Am. Eep. 188). 
 
 2 State ». Indianapolis, 69 Ind. 875 (35 Am. Bep. 223). 
 
 ' Butler's Appeal, 73 Pa. St. 48 ; Sioux City v. School District, 55 
 ^owa, 150. 
 
 * Parnsworth Co. v. Lisbon, 62 Me. 451 ; Wilson v. Mayor, etc., of 
 New York, 4 E .D. Smith, 675 ; State v. Parker, 33 N. J. 213 ; State v. Hud- 
 son, etc.. Commissioners, 37 N. J. 11; Hill v. Higdon, 5 Ohio St. 243; 
 State V. County.Court, 19 Ark. 360; Weeks v. Milwaukee, 10 Wis. 242; 
 Wilson V. Supervisors of Sutter, 47 Cal. 91. 
 
 5 Eailway Co. v. Philadelphia, 101 U. S. 528; State v. Mills, 34 N. J. 
 177; Trustees of M. E. Church v. Ellis, 38 Ind. 3; NashvUle, etc., E. K. 
 Co. V. Hodges, 7 Lea, 663. 
 
 « Seamen's Friend Society v. Boston, 116 Mass. 181 ; Universalist 
 
 § 129a 
 
474 POLICE REGULATION OF REAL PEOPERTr. 
 
 In reference to these matters, as just explained, the 
 power of taxation is practically without limitation, at any 
 rate subject to very few limitations. But it would not do 
 to say that evei-y legislative act, which assumes the exercise 
 of the power of taxation, will be constitutional. Levies 
 can be made upon the property of the individual which will 
 transcend the object of taxation, as well as violate its spirit. 
 The levy ot a tax is only permissible, except under a tyr- 
 annical government, when it is made for a public purpose, 
 and it is proportioned uniformly among the objects or sub- 
 jects of taxation. When a tax is imposed for some private , 
 or individual benefit, or is not uniformly imposed upon those 
 who ought to bear it, it is perfectly proper, nay, it ia the 
 duty of the courts to interfere and prohibit what may be 
 justly called an extortion.' But the term " public purpose " 
 must not be used in this connection in any narrow sense. 
 Taxes are levied for a public purpose, not only when they 
 
 Society ». Providence, 6 E. I. 235; Brewster «. Hough, 10 N. H. 138; 
 Seymour v. Hartford, 21 Conn. 681 ; Matter of Mayor, etc., 11 Johns. 77; 
 Patterson «. Society, etc., 24 N. J. 385; Pray v. Northern Liberties, 31 
 Pa. St. 69; Baltimore v. Cemetery Co., 7 Md. 617; Orange, etc., K. B. Co. 
 V. Alexandria, 17 Gratt. 185 ; Lafayette u. Orphan Asylum, 4 La. Ann. 1; 
 Broadway Baptist Church v. MoAtee, 8 Bush, 608 (8 Am. Rep. 480) ; 
 Cincinnati College v. State, 19 Ohio, 110; Palmer v. Stnmph, 29 Ind. 
 329; Peoria v. Kidder, 26 111. 351; Locltwood v. St. Louis, 24 Mo. 20; 
 Le Fever v. Detroit, 2 Mich. 586; Hale v. Kenosha, 29 Wis. 599. 
 
 1 "It is the clear right of every citizen to insist that no unlawful or 
 unauthorized exaction shall be made upon him under the guise of taxa- 
 tion. If any such illegal encroachment is attempted, he can always in- 
 volie the aid of the judicial tribunals for his protection, and prevent his 
 money or other property from being taken and appropriated for a pur- 
 pose and in a manner not authorized by the constitution and laws." 
 Bigelow, Ch. J., in Freeland a. Hastings, 10 Allen, 570, 575. See, also, 
 to the same effect, Hooper v. Emery, 14 Me. 375 ; Allen v. Jay, 60 Me. 124 
 (11 Am. Kep. 185) ; Talbot v. Hudson, 16 Gray, 417; Weismer». Douglass, 
 64 N. Y. 91 (21 Am. Bep. 588) ; Tyson v. School Directors, 51 Pa. St. 9; 
 Washington Avenue, 69 Pa. St. 352 (8 Am. Rep. 255) ; People v. Township 
 Board of Salem, 20 Mich. 452; People o. Supervisors of Saginaw, 26 
 Mich. 22; Ferguson v. Landram, 5 Bush, 230; Morford v. linger, 8 Iowa, 
 82; Hansen v. Vernon, 27 Iowa, 28. 
 § 129a 
 
LIMITATIONS UPON LEGISLATIVE AUTHORITY. 475 
 
 are designed to pay the salaries of government officials, to 
 erect and keep in repair government buildings ; to maintain 
 the public roads, harbors and rivers in a fit condition, and to 
 provide for the defenses of the country. Taxes may not 
 only be levied for such purposes, but also for all purposes 
 of public charity . It is a public purpose to erect with State 
 funds, obtained from taxes, penitentiaries, orphan and 
 lunatic asylums, hospitals and lazarettos, public schools 
 and colleges.^ It is a public purpose to provide pensions 
 for the soldier and other employees of the government, when 
 they have become disabled in service or superannuated.^ 
 And wherever there is a reasonable doubt as to the character 
 of the purpose for which the tax was levied, the doubt 
 «hould be solved in favor of the power of the legislature to 
 lay the tax.* But if the purpose be truly private ; if the 
 tax in effect takes the property of one man and gives it to 
 another, it is illegal and it is the duty of the courts to enjoin 
 its collection.* For example, it has been held unlawful to 
 
 ' But It is only for the support of public charities that the government 
 may tax the people. A levy of a tax for donation to some private benevo- 
 lent or charitable institution is void. St. Mary's Industrial School v. 
 Brown, 45 Md. 310. 
 
 2 Booth V. Woodbury, 32 Conn. 118; Speer v. School Directors of 
 Blairville, 50 Pa. St. 150. 
 
 3 " To justify the court in arresting the proceedings and declaring 
 the tax void, the absence of all public interest in the purposes for which 
 the funds are raised must be clear and palpable; so clear and palpable 
 as to be perceptible by every mind at the first blush." Per Dixon, Ch. 
 J.;, In Brodhead v. City of Milwauliee, 19 Wis. 624, 652. See Spring v. 
 Kussell, 7 Me. 273; Mills v. Charleton, 29 Wis. 411 (9 Am. Rep. 578.) 
 
 * " The legislature has no constitutional right to * * * lay a tax, 
 or to authorize any municipal corporation to do it, in order to raise 
 funds for a mere private purpose. No such authority passed to the as- 
 sembly by the general grant of the legislative power. This would not 
 be leL'islation. Taxation is a mode of raising revenue for public pur- 
 poses. When it is prostituted to objects in no way connected with 
 the public interest or welfare, it ceases to be taxation and becomes plun- 
 der. Transferring money from the owners of it into the possession of 
 those who have no title to it, though it be done under the name and form 
 of a tax, is unconstitutional for all the reasons which forbid the leglsla- 
 
 § 129a 
 
476 POLICE REGULATION OF REAL PROPERTY. 
 
 levy taxes ia aid of manufacturing and other private indus- 
 trial enterprises, 1 for the relief of farmers, whose crops 
 have been destroyed, to supply them with seeds and pro- 
 visions,^ or for making loans to persons whose homes have 
 been destroyed by fire.^ It has also been held illegal to 
 pay a subscription to a private corporation that is to he 
 devoted to a private purpose.* On the other hand, 
 it has been repeatedly held that the legislature may 
 authorize counties and municipal corporations to sub- 
 scribe for capital stock in railroad companies in aid 
 of their construction and may levy a tax in order to 
 pay the subscription.^ Since the legislature is pro- 
 
 ture to usurp any other power not granted to them." Black, Ch. J., in. 
 Sharpless v. Mayor, etc., 21 Pa. St. 147, 168. 
 
 1 Loan Association v. Topeka, 20 Wall. 655; Opinions of Judges, 58 
 Me. 590; Allen v. Jay, 60 Me. 124 (11 Am. Eep. 185) ; Commercial Bank 
 V. lola, 2 Dill. 353. 
 
 2 State V. Osawkee, 14 Kan. 418. But the United States, as well as 
 the State governments, have frequently come with the public funds to the 
 rescue of the people of sections which have been inundated by floods, or 
 devastated by disease or fire ; and it would seem that the State aid under 
 such circumstances differed little if at all from the ordinary bestowal 
 of alms upon the poor, and is equally justifiable, as being a public 
 charity. 
 
 3 Lowell V. Boston, 111 Mass. 454 (15 Am. Rep. 39;. 
 
 * Weismer v. Douglass, 64 N. Y. 91 (21 Am. Kep. 586). 
 
 " Zabriskkie v. Cleveland, C. &. K. E. Co., 23 How. 381; Bissell «. 
 City of Jeffersonville, 54 How. 287; Araey ». Allegheny City, 24 How. 
 364; Curtis v. Butler Co., 24 How. 435; Mercer Co. v. Hacket, 1 Wall. 83; 
 Gelpcke v. City of Dubuque, 1 Wall. 175; Seybert v. City of Pittsburg, 1 
 Wall. 272; Van Hortrup v. Madison City, 1 Wall. 291; Meyer v. City of 
 Muscatine, 1 Wall. 384; Havemeyeri). Iowa Co., 3 Wall. 294; Thomson v. 
 Lee Co., 3 Wall. 327; Rogers v. Burlington, 3 Wall. 654; Mitchell v. Bur- 
 lington, i Wall. 270; Campbell v. City of Kenosha, 5 Wall. 194; Riggs v. 
 Johnson, 6 Wall. 166; Lee Co. v. Rogers, 7 Wall. 181 ; City of Kenosha, 9 
 Wall. 477; Chicago, B. & Q. E. R. Co. v. County of Otoe, 16 Wall. 667; 
 Oilman v Sheboygan, 2 Black, 510; Tipton Co. v. Rogers L. & M. Works, 
 103 U. S. 523. The cases from the State courts are too numerous to cite 
 in detail. But see, to the same effect, Supervisors of Portage Co. tt. 
 Wis. Cent. R. R. Co., 121 Mass. 460; Augusta Bank c. Augusta, 49 Me. 
 S07; Williams v. Duanesburg, 66 N. Y. 129; Brown v. County Comrs., 21 
 
 § 129a 
 
LIMITATIONS UPON LEGISLATIVE AUTHORITY. 477 
 
 Libited from making levies for private purposes, it cannot 
 authorize municipal corporations to do so.^ 
 
 But great difficulty is experienced in enforcing an observ- 
 ance of this limitation, if any desire is manifested to vio- 
 late it, since the legislature usually makes one levy of tax 
 in a gross sum to cover all the probable expenditures of the 
 government during the fiscal year, and there is rarely, if 
 ever, a special levy for each item of expenditure. It would 
 certainly hamper very seriously the operations of govern- 
 ment, if each taxpayer were allowed to question the legality 
 of the levy, because one of the proposed items of expendi- 
 ture is not for a public purpose. In such a case the inter- 
 est of the individual must yield to the public good, and 
 apart from a change of representatives at the next election, 
 there is probably no remedy, unless the treasurer or other 
 disbursing officer should refuse to apply the public funds to 
 the unlawful purpose. But if a special stamp or license 
 tax should be levied for a private purpose, the taxpayer 
 can resist the payment, and demand from the ordinary 
 courts protection against the actions of ths tax collector. 
 
 A tax levy may also be open to objection because it does 
 not comply with the constitutional requirement of uniform 
 apportionment. The language of the State constitutions in 
 in this connection is not invariably the same, and in some 
 of them the language is sufficiently variant to account for 
 the contradiction of authorities ; but as a general proposi- 
 tion, they are considered to make about the same require- 
 ment. Taxation must be equal and uniform, but the 
 constitutions do not require that the same rule of uniformity 
 should be emplf)yed in the apportionment of all taxes. No 
 one rule of uniformity can be devised, which will be appli- 
 cable to all kinds of taxation, and consequently for each 
 mode of taxation there must be a special rule of apportion- 
 
 Pa. St. 37; St. Louis u. Alexander, 23 Mo. 483; Smith v. Clark Co., 54 
 Mo. 58. 
 
 1 Attorney-General v. Eau Claire, 37 Wis. 400. 
 
 § 129a 
 
478 POLICE KEGULATION OF BBAL PEOPEETT, 
 
 ment. Thus, for example, the taxation of property is ap- 
 portioned according to the value, it being considered that 
 such an apportionment will bring about a more perfect 
 equalization of the tax than any other rule. But in laying 
 a tax upon professions and occupations, a different rule of 
 uniformity must be followed.^ And the usual rule is to 
 establish a scale of taxation upon the occupations, graded 
 in proportion to their relative profits. The meaning, there- 
 fore, of this constitutional limitation is that whatever the 
 rule of apportionment is, it must be uniformly and impar- 
 tially applied to all objects of the special taxatiou.'' There, 
 cannot be any partial discrimination between persons or 
 property living in the same taxing district, and falling 
 within the established rule of apportionment. The State 
 has the right to determine the limits of the taxing district,* 
 
 1 As to the uniformity of the tax on occupations, see ante, § 101. 
 
 2 See State Railroad Tax Cases, 92 U. S. 575; Cummings v. National 
 Bank, 101 U. S. 153; Oliver v. Washington Mills, 11 AUeff, 268; Tide- 
 water Co. v. Costar, 18 N. J. Eq. 618 ; Kittanning Coal Co. v. Common- 
 wealth, 78 Pa. St. 100; Galtin v. Tarborough, 78 N. C. 119; Toungblood 
 V. Sexton, .'52 Mich. 406; Bureau Co. v. Railroad Co., 44 111. 229; Marsh 
 V. Supervisors, 42 Wis. 502; Philles v. Hiles, 42 Wis. 627; Ex parte Rob- 
 inson, 12 Nev. 263; Sanborn B. Rice, 9 Minn. 273 ; New Orleans ». Dubarry, 
 33 La. Ann. 481 (39 Am. Rep. 273) ; State v. RoUe, 30 La. Ann. 991 ; Walters 
 V. Duke, 31 La. Ann. 668 ; State v. Cassidy, 22 Minn. 312 (21 Am. Rep. 765). 
 But see, contra, Sims v. Jackson, 22 La. Ann. 440 ; State v. Endom, 23 La. 
 An. 663 ; State v. So. Ca. R. R. Co., 4 S. C. 376. 
 
 ' But the tax district must be of uniform character, so that the tax 
 shall fall upon those who are almost equally benefited by the expendi- 
 ture. It has thus been held unlawful for a legislature to extend the limits 
 of a city so as to include farming lands, and thus Increase the revenue of 
 the city. City of Covington v. Southgate, 15 B. Mon. 491; Arbegnsto. 
 Louisville, 2 Bush, 271 ; Swift v. Newport, 7 Bush, 37; Morford v. Unger, 
 8 Iowa, 82 ; Langworthy v. Dubuque, 13 Iowa, 86 ; Fulton v. Davenport, 
 17 Iowa, 404; Buell v. Ball, 20 Iowa, 282; Bradshaw v. Omaha, 1 Neb. 16; 
 Durant v. Eauffman, 34 Iowa, 194. But see, contra, Stilts v. Indianapolis, 
 55 Ind. 515 ; Giboney v. Cape Girardeau, 68 Mo. 141 ; Martin v. Dix, 62 
 Miss. 63 (24 Am. Rep. 661) ; New Orleans v. Cazelear, 27 La. Ann. 156. 
 See, also, Kelly v. Pittsburg, 85 Pa. St. 170; Hewitt's Appeal, 88 Pa. St. 
 65; Weeks v. Milwaukee, 10 Wis. 242. 
 
 § 129a 
 
LIMITATIONS UPON LEGISLATIVE AUTHORITY. 479 
 
 but when the taxing district is established, and the rule of 
 apportionment determined upon, the tax must be uniformly 
 apportioned throughout the taxing district. There cannot 
 be different rules of apportionment for different persons or 
 differjent sections of the district.^ 
 
 The charge of illegality, because of the violation of the 
 constitutional requirement of equality and uniformity in 
 the apportionment, is most commonly brought against local 
 assessments co-called. It is very common at the present 
 day for municipal corporations, instead of providing for the 
 improvement of the streets, the construction of sewers and 
 drains, and other local arrangements for the promotion of 
 health and comfort, by the imposition of a general tax, col- 
 lectible "from all the taxpayers of the city according to the 
 value of their taxable property, to apportion the cost of 
 the improvement among those contiguous proprietors who 
 are more directly benefited by the improvement. There 
 are two modes of apportionment of the cost of these local 
 improvements, both of which have been sustained as being 
 a substantial compliance with the constitutional requirement 
 of uniformity. One method is a more or less arbitrary ap- 
 portionment of the cost according to the legislative judg- 
 ment of the benefit received by each proprietor from the 
 improvement,^ while it has in other cases been held to 
 
 1 Pine Grove v. Talcott, 19 Wall. 666, 676 ; Knowlton v. Supervisors- 
 of Eock Co., 9 Wis. 510; Exchange Banku. Hines, 3 Ohio St. 1, 15; Kent 
 V. Kentland, 62 Ind. 291 (30 Am. Eep. 182); State v. New Orleans, 16 La. 
 Ann. 364; Chicago, etc., E. B. Co. v. Boone Co., 44 111. 240; Fletcher «. 
 Oliver, 25 Ark. 889; Commissioners of Ottawa Co. v. Nelson, 19 Kans. 
 234 (27 Am. Eep. 101) ; East Portland v. Multnomah Co., 6 Ore. 62. But 
 see, contra, Gillette v. Hartford, 31 Conn. 351 ; Serrill v. Philadelphia, 38 
 Pa. St. 355; Benoist». St. Louis, 19 Mo. 179. 
 
 ' People V. Mayor, etc., of Brooklyn, 4 N. Y. 419 ; Livingston v. New 
 York, 8 Wend. 85 (22 Am. Dec. 622); Wright ». Boston, 9 Cush. 233; 
 Jones V. Boston, 104 Mass. 461; Nichols v. Bridgeport, 23 Conn. 189; 
 Cone V. Hartford, 28 Conn. 363; State v. Fuller, 34 N. J. 227; McMasters 
 V. Commonwealth, 3 Watts, 292; Weber v. Eeinhard, 73 Pa. St. 370 (13 
 Am. Eep. 747); Alexander v. Baltimore, 5 GiU, 383; Howard v. The 
 
 § 129a 
 
480 POLICE REGULATION OF REAL PROPERTY. 
 
 be equally lawful to make a taxing district of one street of 
 a city, and apportion the cost of improvements among 
 abutting proprietors in proportion to the frontage of their 
 lots.^ The reasoning of the courts is invariably that in 
 local assessments, as in the case of a general tax, there is 
 a more or less successful attempt at uniformity, although 
 the rules of apportionment may be different. "A property 
 tax for the general purposes of the government, either of 
 the State at large, or of a county, city, or other district, is 
 regarded as a just and equitable tax. The reason is obvi- 
 ous. It apportions the burden according to the benefit, 
 more nearly than any other inflexible rule of general taxa- 
 tion. A rich man derives more benefit from taxation in 
 the protection and improvement of his property than a 
 poor man, and ought therefore to pay more. But the 
 amount of each man's benefit in general taxation cannot be 
 ascertained and estimated with any degree of certainty ; 
 and for that reason a property tax is adopted, instead of an 
 estimate of benefits. In local taxation, however, for spec- 
 ial purposes, the local benefits may in many cases be seen, 
 traced, and estimated to a reasonable certainty." At least 
 
 Churcli, 18 Md. 451; ScovlUe «. Cleveland, 1 Ohio St. 126; Sessions v. 
 Crunkleton, 20 Ohio St. 349 ; Maloy v. Marietta, 11 Ohio St. 636 ; Bradley 
 V. McAtee, 7 Bush, 667 (S Am. Rep. 309) ; Hoyt v. East Saginaw, 19 Mich. 
 39; Sheley v. Detroit, 45 Mich. 431; Cook ». Slocum, 27 Minn. 600; La- 
 layette V. Fowler, 34 Ind. 140; Peoria v. Kidder, 26 III. 351; Garrett v. 
 St. Louis, 25 Mo. 505 ; Uhrig v. St. Louis, 44 Mo. 458 ; Burnett v. Sacra- 
 mento, 12 Gal. 76. See, contra, States. Charleston, 12 Rich. 702. 
 
 1 Williams v. Detroit. 2 Mich. 560; Northern E. E. Co. v. Connelly, 
 10 Ohio St. 159 ; Lamsden v. CrosH, 10 Wis. 282. Contra, McBean v. 
 Chandler, 9 Heisk. 349; Perry v. Little Rock, 32 Ark. 31. 
 
 " People V. Mayor, etc., of Brooklyn, 4 N. Y. 419, 427. In Ohio, the 
 legislature has expressly authorized the municipal governments to 
 apportion local assessments, either according to the frontage of lots or 
 their assessed value. In declaring this law to be constitutional. Peck, J. 
 says : " It is said that assessments as distinguished from general taxa- 
 tion, rest solely upon the idea of equivalents; a compensation propor- 
 tioned to the special benefits derived from the improvement, and that in 
 § 129a 
 
LIMITATIONS UPON LEGISLATIVE AUTHORITY. 481 
 
 this has been supposed and assumed to be true by the leg- 
 islature, whose duty it is to prescribe the rules on which 
 taxation is to be apportioned, and whose determination of 
 this matter being within the scope of its lawful power, is 
 conclusive." 
 
 the case at bar, the railroad company is not, and in the nature of things 
 cannot be in any degree benefited by the improvement. It is quite true 
 that the right to impose such special taxes is based upon a presumed 
 equivalent, but it by no means follows that there must be in fact such 
 full equivalent in every instance, or that its absence will render the 
 assessment invalid. The rule of apportionment, whether by the front 
 foot or a percentage upon the assessed valuation must be Mm/orm, affect- 
 ing all the owners and aU the property abutting on the street alike. One 
 rule cannot be applied to one owner, and a different rule to another owner. 
 One could not be assessed ten per cent, another Ave, another three, and 
 another left altogether unassessed, because he was not in fact benefited. 
 It is manifest that the actual benefits resulting from the improvement 
 may be as various almost as the number of the owners and the uses to 
 which the property may be applied. No general rule, therefore, could be 
 laid down which would do equal and exact justice to all. The legisla- 
 ture have not attempted so vain a thing, but have prescribed two 
 different modes in which the assessment may be made, and left the city 
 authorities free to adopt either. The mode adopted by the council 
 becomes the statutory equivalent for the benefits conferred, although in 
 fact the burden imposed may greatly preponderate. Northern Indiana E. 
 E. Co. V. Connelly, 10 Ohio St. 159. See, generally, Willard v. Presbury, 
 14 Wall. 676 ; Allen v. Drew, U Vt. 174 ; Washington Avenue, 69 Pa. St. 
 562 (8 Am. Eep. 255) ; Craig v. Philadelphia, 89 Pa. St. 265; Philadelphia 
 V. Eule, 93 Pa. St. 15; Hill v. Higdon, 5 Ohio St. 243; Ernst v. Kunkle, 
 5 Ohio St. 620; White v. People, 94 111. 604; Palmer v. Stumph, 29 Ind. 
 •329 ; St. Joseph ». O'Donaghue, 31 Mo. 345 ; Hines v. Leavenworth, 3 
 Kan. 186; Burnett v. Sacramento, 12 Cal. 76; Chambers v. Satterlee, 40 
 €al. 497. See for an exhaustive treatment of this subject, Cooley Const, 
 iim. 616, 634; 2 Dill. Mun. Corp., §§ 752, 761. 
 
 Note. — The subject of taxation is so extensive that it is itself sufiicient 
 to constitute the subject of a separate volume, and an exhaustive treat- 
 ment of it In the present connection would have swelled the volume 
 beyond reasonable proportions. Moreover, the power of taxation is not 
 -commonly considered abranchof the police power. While I am convinced 
 that it is scientifically correct to consider taxation as the imposition of a 
 burden in the exercise of the police power of the government, the fact 
 
 31 § 129a 
 
482 POLICE REGULATION OF REAL PROPERTY. 
 
 that the subject has been fully and thoroughly treated by distinguished 
 writers (see Cooley Const. Lim. 592, 646 ; 2 Dillon Mun. Corp., §§ 736, 822 j 
 Sedgwick on Statutory and Constitutional Law, ch. 10; , has led me in ex- 
 plaining the power of taxation as a branch of police power, to content 
 myself with stating the constitutional objections that might be made t» 
 different forms of taxation, supporting the statements by a liberal cita- 
 tion of authorities. 
 § 129a 
 
CHAPTER XL 
 
 POLICE REGULATION OP PERSONAL PROPERTY. 
 
 Section 135. Laws regulating tlie creation and acquisition of Interests in 
 personal property — Real and personal property herein 
 distinguished. 
 135a. Statute of uses and rule against perpetuity, as regulations 
 of personal property. 
 
 136. Regulation and prohibition of the sale of personal prop- 
 
 erty. 
 186a. Laws regulating disposition of personal property by will. 
 
 137. Involuntary alienation. 
 
 138. Control of property by guardian. 
 
 139. Destruction of personal property on account of illegal use. 
 
 140. Laws regulating use of personal property. 
 140a. Prohibition of possession of certain property. 
 
 1406. Regulation and prohibition of the manufacture of certain 
 
 property. 
 140c. Carrying of concealed weapons prohibited. 
 140d. Miscellaneous regulations of the use of personal property. 
 
 141. Laws regulating the use and keeping of domestic animals. 
 141a. Keeping of dogs. 
 
 1416. Laws for the prevention of cruelty to animals. 
 
 142. Regulation of contracts and other rights of action. 
 
 143. Regulation of ships and shipping. 
 
 § 135. Laws regulating' the creation and acquisition 
 of interests in personal property — Beal and personal 
 property herein distinguished. — It has been shown in a 
 previous section,^ that the private property in lands is ac- 
 quired from the State, and is held in subordination to the 
 absolute property in lands, which is vested in, and can 
 never be aliened by the State, as the representative of the 
 public in organized society. It was also asserted and ex- 
 plained,^ that in consequence of the public origin of all 
 
 ' Seej ante, § 115. 
 ' See, ante, § 116. 
 
 (483) § 135 
 
484 POLICE REGULATION OF PERSONAL PROPERTY. 
 
 private property in land, there was but one constitutional 
 limitation upon the power of the legislature to regulate the 
 acquisition and transfer of estates in land, viz. : that such 
 regulations must not interfere or conflict with vested rights. 
 Not only in the primary acquisition of land from the State, 
 but also in the acquisition of it from former private owners, 
 the State has the unrestricted power to determine the con- 
 ditions and form of transfer, and the character of the 
 estates so created, as long as there is no interference with 
 vested right by a material obstruction or practical denial of 
 the right of alienation of a vested estate. The regulations 
 may be arbitrary in the extreme, but they cannot be sub- 
 jected to any serious constitutional objection. 
 
 It is different, however, with personal property. All 
 personal property is the product of some man's labor, and 
 whether the owner has acquired it by his own labor, by in- 
 heritance or by exchange, his interest is a vested right of 
 the most unlimited character. He does not hold it by any 
 favor of the State, and in consequence of his possession of 
 it he has assumed no peculiar obligation to the State. He 
 has the right, therefore, to acquire it in any manner that 
 he pleases, provided in so doing he does not interfere with 
 or threaten the rights of others. Laws for the regulation 
 of the conveyance of real property may be altogether arbi- 
 trary, provided the burden so imposed upon alienation does » 
 not amount to a practical prohibition of alienation. But 
 in order that a similar regulation of the transfer of personal 
 property may be lawful, it must serve some public good, 
 and whether it does promote the public welfare is a judicial 
 and not a legislative question. In neither case is there any 
 likelihood that an arbitrary aud wholly unreasonable regu- 
 lation of the conveyance of property will be attempted. 
 In both cases the legislature would usually be prompted to 
 regulate conveyancing only by some public consideration, 
 and hence the distinction here made, between real and per- 
 sonal property, in its application to the regulation of con- 
 § 135 
 
REAL AND PERSONAL PROPERTY DISTINGUISHED. 485 
 
 veyancing, does not possess much practical importance. 
 But a case may arise, in which the attempted regulation 
 could, under this distinction, be declared unconstitutional, 
 and hence it is highly proper that the distinction should be 
 presented in this connection. The ordinary legislation, in 
 the regulation of the conveyance of both real and personal 
 property, has for its object either the prevention of fraud, 
 the removal of doubt concerning the validity of one's title, 
 or the facilitation of investigations of titles. For some one 
 or more of these reasons, the sale of personal property is 
 declared to pass a good title, as against a subsequent pur- 
 chaser, or incumbrancer, only when the possession hiis been 
 delivered, or the bill of sale is recorded ; the chattel mortgage 
 is required to be recorded ; and all transfers of property 
 are avoided in favor of existing creditors, which are not made 
 upon some valuable and substantial considerations. All of 
 these are reasonable regulations, for the restraint upon the 
 rights of alienation and acquisition is but slight and serves 
 a worthy and public purpose ; for every one is interested in 
 the prevention of fraud as he is of all other trespasses on 
 the rights of others. 
 
 But there is a greater likelihood of an arbitrary or unnec- 
 essary regulation of the interests or estates which one may 
 acquire in personal property. As has been already ex- 
 plained, the State has the unrestricted power to determine 
 the kinds and characteristics of the estates which may be 
 created in lands ; but the estate or interest in personal prop- 
 erty may be as varied and unique as human ingenuity may 
 devise, subject to the one limitation imposed by the nature 
 of the article of personal property. Thus, for example, it 
 is common to find it stated in law books that a future estate 
 may be created in personal property, where the present 
 enjoyment does not involve necessarily a consumption of 
 the thing itself.^ Of course, the creation of an estate in 
 
 1 Tledeman on Real Prop., § 646. 
 
 § 135 
 
486 POLICE REGULATION OF PERSONAL PEOPERTY. 
 
 personalty of such a character, that it will prove a public 
 injury or a private wrong, may be prohibited, and all regu- 
 lations of the creation of estates and interests in personal 
 property may be instituted, which have in view the preven- 
 tion of such wrongs. But, except in a few rare cases, it is 
 difficult to see how any interest in personal property can be 
 created which will have an injurious effect on the public or 
 third persons. One exceptional case is thiit of an interest 
 so limited as to deprive creditors of the right to subject the 
 property to their lawful demands. A law, declaring void 
 all conditions against sale for debts, is undoubtedly consti- 
 tutional, for the public is directly interested in enforcing 
 the payment of a debt. The contraction of a debt is a vol- 
 untary subjection of property to liability for it, and the pos- 
 session of property, free from this liability for debt, would 
 tend to induce and increase that wild and irresponsible 
 speculation which does so much to produce fluctuations in 
 values and financial disasters. It is, therefore, proper to 
 prohibit such a limitation of both real and personal pfop- 
 erty. 
 
 § 135a. Statute of uses and rule against perpetuity as 
 regulations of personal property. — It was proper and con- 
 stitutional for the legislature or parliament to enact the 
 statute of uses, which has for its object the abolition of all 
 uses, or other equitable interests, held separately from the 
 legal title and estate, so far as it was held to apply to real 
 property. For, although the creation of such equitable 
 interests was charged to be conducive to the perpetration 
 of fraud,* and that was the reason assigned for the enact- 
 ment, the real purpose was the conservation and protection 
 of those legal rights in land, such as the king's right of for- 
 feiture on account of attainder, alienage and treason, and 
 the manorial lord's wards, marriages, reliefs, heriots, 
 
 1 Tiedeman onKeal Prop., § 459; 1 Sudg. on Powers (ed. 1866), 78. 
 § 135a 
 
STATDTE OF USES AND BULE. 487 
 
 escheats, aids, etc., which were special privileges imposed 
 upon the tenants as burdens of tenure, and the evasion of 
 which constituted the alleged perpetration of fraud. Inas- 
 much as the State can impose whatever conditions and limit- 
 ations upon tenancies of land it pleases, uses and trusts 
 issuing out of land may be abolished altogether. And 
 although the limitation of the operation of the statute to 
 uses issuing out of freehold estates in lands was the result 
 of a technical construction of the statute, induced by the 
 opposition of bench and bar to the statute itself, and not 
 by any consideration of constitutional limitations upon the 
 power of Parliament or of the American legislature to 
 enact the statute ; if the question were to be raised anew, 
 the application of a statute, abolishing uses and trusts, to 
 personal property may be resisted on the ground that it is 
 unconstitutional to prohibit the creation of trusts in per- 
 gonal property.^ The owner, as well as the purchaser of 
 personal property, has a right to have the property in 
 <juestion conveyed to trustees to be held in trust ; and the 
 liberty and right of property of both are invaded in an 
 unconstitutional manner, when a legislature undertakes to 
 prohibit the creation of trusts in personal property. 
 
 In New York all passive trusts have been abolished, and 
 only certain active trusts, enumerated in the statute, are 
 now permitted. All other express trusts are converted by 
 the statute into legal estates by the transfer of the seisin 
 and estate to the cestui que trust.^ So far as the statute 
 limits the creation of active trusts in personal property, 
 the constitutionality of the law must depend upon the evil 
 effect upon others of the creation of such a trust. No 
 active trust in personal property can be prohibited which 
 does not have some immoral or illegal purpose. It may be 
 
 1 The term "personal property, " it must be observed, is used in this 
 connection in the sense of chattels personal, including movable property 
 ■of all kinds, but excluding chattel interests in lands. 
 
 » Tiedeman on Real Prop., § 470; N. Y. Rev. Stat., p. 727. 
 
 § 135a 
 
488 POLICE REGULATION OF PERSONAL PROPERTY. ' 
 
 different with passive trusts. Since such legislation, as the^ 
 New York statute just mentioned, is, whenever copied, 
 usually accompanied with the statutory removal of all dis- 
 abilities in respect to separate property from married 
 women, there can be no sound or substantial reason for thfr 
 existence of passive trusts. The creation of them may not 
 produce any direct or positive harm, but they certainly 
 tend to complicate the administration of the law, and for 
 that reason the prohibition of them may possibly be 
 justified. 
 
 Another case of regulation of the creation of interests 
 in personal property, which may be subjected to serious 
 criticism, is the application of the rule against perpetuity 
 to personal property. In limiting the creation of future' 
 interests by will, the application of the rule can be easily 
 justified, for the power to dispose of any property by will, 
 in any manner whatever, depends upon the legislative dis- 
 cretion.^ But in its application to future interests in per- 
 sonal property, created by conveyances inter vivos, it is 
 hard, if at all possible, to find any constitutional justifica- 
 tion for such legislation. Personal property is the product 
 of man's labor, and he has the right during his life to make 
 whatever use of it, or to dispose of it to any one, in any 
 way, and under any terms that he pleases, provided that in 
 so doing he does not inflict or threaten the infliction of any 
 wrong or damage on others. It may be said that the pros- 
 perity of a country is advanced when the national wealth is 
 not accumulated in the hands of a few, and the rule against 
 perpetuity operates as a check upon such dangerous accu- 
 mulations. But if such a reason served as a justification 
 of this exercise of police power, it would justify the more 
 severe, but, in principle, similar legislation, which would 
 compel a man to confine his earnings to a certain amount, 
 a regulation which has been urged by some labor reformer* 
 
 » See ante, § 119, and post, § 136 
 § 135a 
 
SALE OF PERSONAL PROPERTY. 489 
 
 as a solution of the present industrial problems. There is 
 no trespass, direct or indirect, upon the rights of others, 
 in limiting a future interest in personal property, beyond a 
 life or lives in being. And since the power to make such 
 perpetual limitations of personal property does not depend, 
 as does the like power in respect to real property, in any 
 sense upon the sanction or grant of the State, it cannot be 
 curtailed or taken away. 
 
 The application of the ordinary constitutional limita- 
 tions to the exercise of police power in cases like these, may 
 excite surprise, and is certainly novel. The general impres- 
 sion, both professional and popular, has been that there is 
 no limitation upon the power of the legislature to regu- 
 late such matters. The long acquiescence in the legiti- 
 macy of such legislation tends to confirm the accepted 
 doctrine, in opposition to the view here advocated. But if 
 it be true that no regulation by the government of the 
 natural rights of the individual is constitutional, which does 
 not promote the public welfare by the prevention of a tres- 
 pass upon the rights of others, it must be conceded that in 
 cases like these, the limitations upon the power of the gov- 
 ernment have their full force and effect, and that it is the 
 duty of the courts to see that the legislature in the exer- 
 cise of its police power keeps within these constitutional 
 limitations. 
 
 § 136. Regulation and prohibition of the sale of per- 
 sonal property. — It is one of the absolute rights of the 
 individual to be free from unreasonable restraints upon the 
 sale or transfer of his personal property. The right to 
 sell or transfer one's property is as much an inalienable 
 right as that of enjoyment of the property free from un- 
 necessary restrictions. Of course, the right to sell may be 
 subjected to whatever regulations may be needed to pre- 
 vent any threatened injury to the public or to third per- 
 sons. In the discussion of the police resjulation of trades 
 
 § 136 
 
490 POLICE EEGULATIOHr OF PERSONAL PROPERTY. 
 
 and employments, the regulation and prohibition of the 
 sale of personal property, as a trade or occupation, have 
 been discussed at length ;^ and, inasmuch as all such regula- 
 tions are designed to control the sale of merchandise, as a 
 trade, they are considered and criticised in the character of 
 restraints upon the liberty of exercising a lawful calling, 
 rather than as an invasion of the rights of property. In 
 the main, the same objections apply to a police regulation, 
 whether it is considered to be an infringement of personal 
 liberty or of the rights of property. It will, therefore, 
 not be necessary to discuss all such regulations in detail in 
 this place, as it would be hardly more than a repetition of 
 what has already been written.^ But in the application of 
 the principles there set forth, as limiting the police regula- 
 tion of employments and of the sale of personal property, 
 a distinction should be drawn between the selling of per- 
 sonal property as a trade, and as a solitary or occasional 
 exercise of a right of ownership. The sale of certain per- 
 sonal property, as a trade, may be liable to become harmful 
 to the public, and for that reason may properly be subjected 
 to police regulation ; whereas the mere act of selling 
 the article of merchandise, independently of being the 
 ordinary occupation of the seller, would contain no element 
 of danger to the public, and therefore cannot be subjected 
 to any police regulation whatever : and wherever the two 
 acts can be separated, the regulation must be confined to 
 those cases in which the selling, on account of its f i-equency, 
 or of its connection with the sale of other similar articles 
 of merchandise, assumes the character of a trade or occu- 
 pation. Regulations for the prevention of fraud are, prob. 
 ably in every case, applicable to the unusual, as well as the 
 ordinary, sale of personal property ; so that, for example, 
 in order to make a valid sale, as against a second purchaser, 
 
 1 See ante, chapter IX , and particularly §§ 89, 93, 95, 96, 101, 102, 
 103. 
 
 2 See, especially, §§ 89, 102, 103. 
 
 § 136 
 
SALE OF PERSONAL PROPERTY. 491 
 
 the possession must be delivered, independently of the fre- 
 quency or infiequency of the act. But there are other 
 cases of police regulation, which are designed to correct 
 •evils, which only arise in connection with the prosecution 
 of a trade or occupation. Thus, for examule, the sale of 
 unwholesome food by a grocer may be prohibited altogether, 
 in the course of his regular business, for his business is 
 the sale of food for human consumption ; and the sale by 
 him of unwholesome food to his regular customers will al- 
 most necessarily inflict injury on the public health. And 
 so would the sale of such food be likely to prove harm- 
 ful to the public, if it should be sold by any casual owner 
 for the purpose of being used as an article of food. But 
 if it were sold, independently of one's business as a ven- 
 dor of human food, for some other lawful purpose, its sale 
 could not be prohibited, for it contains no element of 
 danger to the public health. 
 
 Conceding the position maintained in a previous section,^ 
 that the sale of liquor in saloons, to be drunk on the prem- 
 ises, is the only case of the sale of intoxicating liquors 
 which may be prohibited ; and that the ground for the jus- 
 tification of prohibition in that case is the fact, that liquor 
 saloons are the resort of all the more or less lawless elements 
 of society, and consequently the public peace is endangered 
 by their presence in the community ; it is easy to understand 
 how the prohibition of liquor saloons may be justified, and 
 yet the application of the prohibitory law to an unusual or 
 single case of the sale of liquor, to be drunk on the prem- 
 ises, by one who is not a saloon keeper, may be resisted on 
 constitutional grounds. The latter case could not threaten 
 a disturbance of the public peace, any more than the intem- 
 perate use of liquor, in whatever way it may be procured, is 
 likely to do so. The cases, in which this distinction would 
 
 ^ See ante, § 103. 
 
 § 136 
 
492 POLICE REGULATION OF PEESONAL PEOPEETY. 
 
 be likely to find application, are rare, and the subject need 
 not be given any further attention. 
 
 § 136a. Laws regulating disposition of personal prop- 
 erty by will. — The right of disposing of one's property as 
 one pleases, by transfer or conveyance inter vivos, is an inde- 
 feasible incident of the right of property in personalty^ 
 The transfer of real property may, under certain limitations,, 
 be restrained or prohibited according to the discretion of the^ 
 legislature, since lands are acquired by grant from the State,^ 
 subject to the right of the State to determine the conditions, 
 and terms upon which they are to be held. But that can- 
 not be done with personal property. Personal property 
 is the product of man's labor, instead of being the free gift 
 of nature, and one's right of property is derived from the 
 exercise of dominion over the thing. 
 
 It is a part of that lawful dominion over the thing, that 
 the owner has the right to sell or give it away. But the nat- 
 ural right of property, and consequently the natural right 
 of disposition of it, lasts only as long as the natural domin- 
 ion. When that control which one may claim in conse- 
 quence of the actual or constructive possession of the 
 thing ceases, the natural right of disposition ceases ; and if 
 one has under the law any further control of the thing, it 
 must rest upon positive law. It is, therefore, a legislative 
 privilege, and can therefore be taken away by the same 
 power which gave it. It will, therefore, be conceded that 
 the right to dispose of personal property by will rests upon 
 positive or statutory law, and is therefore subject to legis- 
 lative regulation and prohibition without limitation. It is 
 not disputed that such is the rule in respect to the disposi- 
 tion of lands by will,^ for we know that the present right to 
 devise lauds depends upon the authority of the English 
 
 1 See ante, § 119. 
 ' See ante, § 119. 
 § 136a 
 
INVOLUNTAKY ALIENATION. 493 
 
 statute of wills, enacted ia the reign of Henry YIII., or 
 of some A.merican statute, designed to take the place of the 
 English statute ; whereas the right to dispose of personalty 
 by testament comes down to us as a common-law right.^ 
 But there can be no doubt that the right to bequeath per- 
 sonal property is as much the creature of positive law, as 
 the right to devise lands. This was the position taken by 
 the Supreme Court of Ohio in a case, in which au act of the 
 legislature was sustained, which provided that a bequest, 
 by a testator leaving issue living, to any religious or charit- 
 able purpose shall be void, if made within twelve months 
 of the testator's death. The enactment operated as a re- 
 straint upon the right to dispose of his personal property 
 by will. In delivering its opinion, the court said: " We 
 hold that the right to acquire property implies the right to 
 ■dispose of it. But the inalienable rights here declared, as 
 well as those implied, are possessed by living, not dead 
 men. A disposition by will does not take effect during the 
 testator's life, but operates only after his death. While 
 the right of testamentary disposition may be, as Mr. Eed- 
 field in his work on wills says, instinctive, it nevertheless 
 <Jepends solely on municipal law, and has never been re- 
 garded as a natural or inalienable right. It has always 
 been subject to the control of legislative power, and such 
 power is not limited in this State by a constitutional pro- 
 vision." ^ 
 
 § 137. Involuntary alienation. — It is true with personal, 
 as with real property, that as a general rule the property of 
 one man cannot by legislative enactment be taken away and 
 given to another. Not only is this true in respect to known 
 and recognized owners of personal property, but it is also 
 true, where the property is not claimed by any visible or 
 
 1 See 2 Bla. Com. 491,492. 
 
 ' Patton V. Patton, 39 Ohio St. 590. 
 
 § 137 
 
494 POLICE REGULATION OF PERSONAL PROPERTY. 
 
 known owner. Thus it was held in North Carolina to be- 
 unconstitutional for the State by statute to appropriate the 
 unclaimed dividends of private corporations to public uses.^ 
 For the same reasons the legislative diversion of a bequest 
 to a different use, than what was provided by the donor, 
 was held to be unconstitutional, although in both cases the 
 State was the beneficiary. The diversion was an interfer- 
 ence with tlie reversionary interest of the donor's heirs.* 
 But, notwithstanding this general rule, there are a few 
 exceptional cases in which the State may lawfully dispose of 
 one's personal property against his will. They are princi- 
 pally the same as have already been explained and justified 
 in reference to the involuntary alienation of real property ;* 
 and, the reasons for this exercise of police power being the 
 same in both cases, there is no need for a repetition in this 
 place. It seems to be very doubtful whether there is any 
 room for the application of the principles of eminent domain 
 to personal property. Mr. Cooley says that the State may, 
 in the exercise of its eminent domain, appropriate to a public 
 use private property of every description.* This is con- 
 founding the meaning of terms. Eminent domain means 
 that superior and absolute right of property which the 
 State, as the legal representative of organized society, has 
 in the lands within its borders, and subordinate to which all 
 private property therein is held. In cases of extreme public 
 necessity, it is quite probable that the State may appropri- 
 ate the personal property of the citizen on payment of its 
 full value. At least this is the case in time of war. The 
 governments of all civilized nations exercise this power of 
 appropriation of personal property, in order to supply them- 
 
 1 University of North Carolina v. N. C. E. R., 76 N. C. 103 (22 Am. 
 Eep.671). 
 
 2 Trustees Brooks Academy v. George, 14 W. Va. 411 (35 Am. Bep. 
 760). 
 
 8 See ante, § 120. 
 
 « Cooley Const. Lim. 649, 852, 653. 
 
 § 137 
 
INVOLUNTARY ALIENATION. 495 
 
 selves with whatever is needful in the prosecution of the 
 war ; and the forcible and irregular seizure of property by 
 military commanders have been justified, when the neces- 
 sity was urgent and such as will admit of no delay, und 
 where the civil authority would be too late in providing the 
 means required for the occasion.* Not only does the State, 
 in time of war, appropriate whatever personal property they 
 may need for the prosecution of the war, as food or ammu- 
 nition or weapons of warfare, but it more frequently makes 
 forced loans of capital from its people by compelling them 
 to accept its treasury notes as legal tender in payment of 
 debts both public and private.* And it is quite likely that 
 the State may, in any other case of extreme necessity, ap- 
 propriate whatever of private property may be needful to 
 satisfy some urgent general want. Suppose, for example, 
 in the case of a general failure of the crops, a famine should 
 occur, and those who did possess stocks of provisions re- 
 fused to sell at any reasonable price, or refused to sell 
 at all, while people were brought to the extremity of star- 
 vation. Could not the State compel those who had a 
 " corner " on the provision market to deliver up their prop- 
 erty for the public good, on payment of a reasonable price? 
 Every one has a right to put whatever price on his goods his 
 judgment, his cupidity, or other feeling, may prompt, and the 
 State cannot ordinarily regulate the price of commodities.* 
 But when the public want of food becomes so great, that 
 the failure to satisfy it will be sure to give rise to serious 
 disturbances of the public peace and the violent appropria- 
 tion of the food that is denied them, it is idle to speak of the 
 sacredness of private property. It cannot be doubted that 
 an official appropriation of articles of food, under circum- 
 stances of such urgent necessity, would be judicially justi- 
 
 J Farmer ». Lewis, 1 Bush (Ky.), 66. See Harmony v. Mitchell, 1 
 Blatchf. 549; Mitchell v. Harmony, 13 How. 115. 
 
 2 See ante, § 90. 
 
 3 See ante, § 95. 
 
 § 137 
 
496 POLICE REGULATION OF PERSONAL PEOPERTT. 
 
 fied on the plea of necessity, however illogical it may seem. 
 But all other means of satisfying the public hunger must 
 first have been exhausted, before the selfish proprietor of 
 the scarce articles of food may be forcibly subjected to in- 
 struction in the graces of Christian charity.^ 
 
 § 138. Control of property by gnardian. — The control 
 of the ward's property is so common an authority of the 
 guardian, that it is altogether unnecessary to refer to cases 
 in support of the constitutionality of a law which invests 
 the guardian with this control over the property of the in- 
 fant ward. The helplessness of the minor, and his inability 
 to manage his property in a careful manner, resulting from 
 his immaturity, constitute sufficient reasons for taking from 
 him the control of his property. The powers of the guard- 
 ian are dependent upon the provisions of the law, and are 
 constantly subject to legislative regulation and change. 
 The common law gave to the guardian of a minor the pow- 
 er to manage his real estate, lease it and collect the rents, 
 make repairs, etc., but he had not the power to make a sale 
 of it in fee, without an order from a court of equity. And 
 this is the general rule, in this country, at the present day.' 
 But the guardian has, in the absence of statutes to the con- 
 trary, the ordinary power of selling and disposing of the 
 personal property of the minor, whenever he should deem 
 it advisable to do so.* And it seems that, after a guardian 
 has been appointed and has taken charge of the ward's 
 estate, he acquires such a vested interest in the property 
 during the guardianship, that a law would be unconstitu- 
 tional, because it deprived him of a vested right, which 
 provided for the sale of the minor's property by another, 
 even though the other person be the mother of the ward * 
 
 • As to the sale of estrays, see post, § 141. 
 s See Schouler Dom. Bel. 480-487. 
 
 3 See Schouler Dom. Eel. 461-479. 
 
 • Lincoln v. Alexander, 52 Cal. 482 (28 Am. Rep. 639). 
 
 § 138 
 
CONTROL OF PROPERTY BY GUARDIAN. 497 
 
 Not only is it a legitimate exercise of police power to 
 place the control of a minor's property in the hands of a 
 guardian ; but it is equally competent to place under guard- 
 ianship the person and property of all other persons, who 
 from any cause may become unable to take care of them- 
 selves. There can be no doubt of the power to treat the 
 insane in this manner. And it has been held to be compe- 
 tent, in the exercise of the police power, to place habitual 
 drunkards under guardianship. The assumption by the 
 guardian of the control of the property of the drunkard 
 would not be an unlawful deprivation of property. The 
 derangement of mind, resulting from habitual drinking, 
 would place him in the same category with the ordinary 
 insane.* The claim has also been made that the property 
 of spendthrifts may be taken from them and placed under 
 the control of a guardian or curator.^ But it would appear 
 to be a very difficult matter to determine just what degree 
 of extravagance will make the possessor of property a 
 spendthrift. And before that difficulty could be overcome, 
 it would be necessary to determine what makes one a 
 spendthrift. Webster defines a spendthrift to be "one who 
 spends money profusely or improvidently." If that be 
 taken as a correct definition, it would be difficult to discover 
 in it the element which would justify this exercise of police 
 power. If it be established that his improvident expendi- 
 tures are the acts of a deranged mind, then he could 
 lawfully be placed under guardianship, on the ground that 
 he is suffering from a form of dementia. But if a perfectly 
 sane man chooses to spend a fortune in high living; prefers 
 the pleasures of a riotous life, with poverty in advanced 
 years, to an equable and moderate expenditure of his income, 
 with the enjoyment of ease and comfort through life, and a 
 proper provision for his heirs ; who can lawfully hinder him 
 
 1 Wadsworth v. Sharpsteen, 8 N. Y. 388- ImhofC v. Whitmer, 21 Pa. St. 
 243; Devin v. Scott, 34 Ind. 67. 
 * See Schouler Dom. Rel. 404. 
 
 32 § ^^^ 
 
498 POLICE EEGULATION OF PERSONAL PfiOPERTY. 
 
 from making the choice? A man can do what he please 
 with his own property, provided he does not interfere with 
 or transgress some vested right of another. He may, like 
 Eaphael Aben Ezra, give away his entire fortune, and be- 
 come a beggar and a wanderer upon the face of the earth ; 
 and no one in a free State dare deny him that privilege. 
 And what he could give away, without receiving any equiv- 
 lent therefor, he may dispose of in riotous living. 
 
 § 139. Destruction of personal property on account^ 
 of illegal use.^ — In a variety of cases, it has been pro- 
 vided, as a penalty for the infraction of the law, that the 
 implements used in the prosecution of an unlawful trado, or 
 in the doing of an illegal act, shall be seized and destroyed. 
 It is a most common provision in the laws for the reg- 
 ulation and prohibition of the sale of intoxicating liquors.* 
 The same provision has been made to apply to nets 
 and other implements employed in illegal fishing ; ^ so also 
 in respect to the stock in trade of a gambler.* But in all 
 of these cases the seizure and destruction must rest upon a 
 judgment of forfeiture, procured at the close of an ordi- 
 nary trial, in which the owner of the property has had a full 
 opportunity to be heard in defense of his property." Con- 
 ceding in every case the illegality of the use to which the 
 property has been put, the constitutionality of the statute 
 cannot be questioned, when the proper hearing is provided 
 for before condemnation. 
 
 1 In respect to the destruction of domestic animals for being nui- 
 sances, see post, § 141. 
 
 2 State V. Miller, 48 Me. 676; States. Snow, 3 R. I. 64; Greene ». 
 James, 2 Curt. 187. 
 
 3 Jeck V. Anderson, 57 Cal. 251 (40 Am. Rep. 1I5J ; Weller «. Snover, 
 42 N. J. L. (13 Vroora) 341. 
 
 ' Lowry V. Rainwater, 70 Mo. 152 (36 Am. Rep. 420). 
 » Greene v. James, 2 Curt. 187; Jeck v. Anderson, 57 Cal. 251 (40 Am. 
 Rep. 115); Lowry v. Rainwater, 70 Mo. 152 (35 Am. Rep. 420). 
 § 139 
 
LAWS REGULATING THE USE OF PERSONAL PROPERTY. 499 
 
 Section. 140. Laws regulating the use of personal property. 
 140a. Prohibition of possession of certain property. 
 1406. Regulation and prohibition of the manufacture of certain 
 
 property. 
 140c. Carrying of concealed weapons prohibited. 
 liOd. Miscellaneous regulations of the use of personal prop- 
 erty. 
 
 § 140. Liaws regulating the use of personal property. — 
 
 While personal property is protected by constitutional limi- 
 tations against all unnecessary interference and regulation, it 
 is a standard rule of police power that one must not make such 
 a use of his property as to injure another ; and consequently 
 the use and enjoyment of personal property may be subjected 
 to such police regulations as may be necessary to prevent 
 any threatened injury to the public. The proof of the 
 existence of a threatened injury, and of the appropriateness 
 of the proposed regulation as a remedy, will always justify 
 the interference. Its efficacy is not a matter for judicial 
 consideration. Laws for the regulation of the use of per- 
 sonal property may be as varied as the uses to which such 
 property can be put; and it is only possible to a refer to few 
 exemplary cases, which have come up before the courts 
 for construction. 
 
 § 140a. ProMbition of possession of certain prop- 
 erty. — In the first place, the very possession of personal 
 property, coupled with an intent proven or presumed, maybe 
 such a public evil as to justify the prohibition of such a pos- 
 session. Thus, a Ehode Island statute forbade the po.ssession, 
 with intent to sell or exchange, of adulterated milk, and it 
 was declared to be constitutional.^ But the unlawful intent 
 would, in such a case, have to be proven. Without this in- 
 tent, the possession of the adulterated milk neither produces 
 nor threatens any harm to the public ; and since adulterated 
 milk may be put to some other use, which is not, and cannot, 
 
 1 State ». Smyth, 14 R. 1. 100 (61 Am. Rep. 344). 
 
 § 140a 
 
500 POLICE REGULATION OF PEKSOKTAL PEOPEETY. 
 
 be prohibited, the unlawful intent to sell cannot be presumed 
 from the mere possession. But it is different when the 
 thing cannot be put to any unobjectionable use. In such a 
 case the thing cannot be presumed to be of any value to its 
 owner except on the hypothesis ; that he intends to make 
 this injurious use of it, and hence the wrongful intent may 
 be presumed from the act of the possession. Thus the 
 constitutionality of a statute was sustained which imposed 
 a penaltj' upon any one who should have in his possession 
 any dead game in certain seasons of the year.^ 
 
 § 1402). Regulation and prohibition of manufacture of 
 certain property. — As a general proposition, it can hardly 
 be doubted that one has a constitutional right to change 
 the form and condition of his personal property to what- 
 ever extent he may see fit ; and he may make a business of 
 manufacturing a given article, provided he does not 
 threaten the public with any injury. And it may be safely 
 stated that the manufacture of no useful article may be 
 prohibited altogether. If the article can be put to a lawful 
 and rightful use, it matters not how likely it will be used 
 in a way harmful to the public, the right to manufacture 
 it cannot be prohibited altogether. As has been already 
 explained, in setting forth the various regulations that may 
 be applied to trades and occupations,* the manufacture 
 of the article may be subjected to whatever regulations 
 may be necessary to guard the public against injury in the 
 process of manufacture, or afterwards in a wrongful use of it. 
 Those who engage in its manufacture may be required to 
 submit to a certain examination, in order to ascertain their 
 fitness for the business, and to take out a license, if the manu- 
 facture requires such regulations. And if the danger to the 
 public of a wrongful and illegitimate use of the manufac- 
 
 1 Phelps V. Racey, 60 N. Y. 10 (19 Am. Rep. 140). 
 " See ante §§ 89, 101-105. 
 § 1406 
 
REGULATION OF MANUFACTURE OF CERTAIN PROPERTY. 501 
 
 tured article be so imminent as to call for such legislation, 
 as seems very likely to happen with reference to the 
 manufacture of dynamite, nitro-glycerine, and other like 
 explosive compounds, the manufacture of it for the pm-pose 
 of sale, that is, as a business, may be prohibited to all but 
 a few licensed manufacturers or the agents of the State. 
 But if, in the actual manufacture of the thing, without police 
 supervision, as in the case of dynamite, there is no danger 
 to the public, the fact that it can be put to a wrongful use 
 will not justify legislation which prohibits the owner of the 
 raw material to manufacture the article which he does not 
 intend to sell, but to make use of in a legitimate way. 
 The manufacture of dynamite may be prohibited, as a 
 business, to all but licensed manufacturers, because his 
 intention to sell makes it very likely or at least possil)le 
 that the identical stuff will be employed in some unlawful 
 way. But when one manufactures it for his own lawful 
 use, he has done nothing to disturb the public safety. 
 
 The regulations concerning the manufacture of metallic 
 money are of this character of police regulations. It is 
 true, that the sole power of coining money is given by the 
 United States constitution to the national government.^ 
 But, except as a restriction upon the power of the States, 
 the constitutional provision was not necessary. It certainly 
 was not needed to authorize the prohibition of the manu- 
 facture of metallic money by the individual. For whatever 
 scientific objections may be made to such regulations by 
 sociological writers, it cannot be denied that the free 
 and indiscriminate coinage would lead to the perpetra- 
 tion of many frauds of those who are least able to discover 
 them. For this reason the government reserves to itself 
 the right to coin money, and punishes severely any counter- 
 feiting of the coins of this and any other country .* Not 
 
 1 U. S. Const. 
 
 » See U. S. Kev. Statutes, §§ 6467, 6458. See post, § 206. 
 
 § 1406 
 
502 POLICE EEGULATION OF PERSONAL PROPERTY. 
 
 only this, but it is also prohibited to any one to manufac- 
 ture for distribution, as an advertisement, or for any other- 
 wise lawful purpose, any metallic pieces with shape and 
 impressions so resembling the shape and impressions of 
 money coins, that there is danger that they may be made 
 the means of practicing frauds upon the unwary.^ 
 
 But in all these cases it is a judicial question whether the 
 manufactured article is calculated to prove an instrument 
 of trespass on the rights of other, and the prohibition of its 
 manufacture can only be justified by an affirmative answer 
 to this inquiry. The absolute prohibition of the manufacture 
 of intoxicating liquors can only be justified by proof of the 
 fact that intoxicating liquors cannot be put to some benefi- 
 cial use. This is conceded to be false by all, whatever may 
 be their other views on legislation in aid of temperance, and 
 most of the present legislation permit its manufacture and 
 sale for medicinal and mechanical purposes. If the position 
 of temperance reformers, that the use of intoxicating liquors 
 as a beverage is a wrong or trespass on society, cannot be 
 successfully assailed, then the constitutionality of a law, 
 which prohibited the manufacture of it except by certain 
 licensed manufacturers, or by the State officers, could not 
 be questioned. Although it would be unreasonable to 
 confine its manufacture to licensed agents of the State, 
 merely for the purpose of preventing the sale to habitual 
 drunkards, lunatics and minors — great as that evil is, the 
 number of such purchasers does not bear comparison with 
 the immense number of those who buy and use it in 
 moderation ; — still the constitutionality of the regulation 
 could not be attacked, for the necessity of the legislation 
 is a legislative and not a judicial question.* 
 
 § 140c. Carrying of concealed weapons prohibited. — 
 
 1 See U. S. Rev. Stat. § 6462. 
 
 ' See ante, § 103, for a general discussion of the prohibition of the 
 liquor trade. 
 
 § 140c 
 
REGULATION OF MANUFACTURE OF CERTAIN PROPERTY. 503 
 
 For the purpose of preventing or reducing the number of 
 street affrays, which, it is claimed, the habit of carrying con- 
 cealed weapons increases to a most alarming frequency, in 
 most of the States there are now statutes in force, prohib- 
 iting the carrying of concealed weapons. Apart from a 
 provision of the constitutions of the United States, and of 
 the several States, which guarantees to every citizen the 
 right to bear arms, there cannot be any serious constitu- 
 tional objection raised to this regulation. It cannot be 
 <juestioned that the habit of carrying concealed weapons 
 tends to engender strife, for the very act indicates the ex- 
 pectation of a possible use for the weapons. The prohibi- 
 tion of carrying concealed weapons is, therefore, an 
 appropriate remedy for the suppression of street affrays. 
 The American constitutions guarantee to every citizen the 
 right to possess and bear arms, in time of peace as well 
 as in war ; and no binding law can be passed by Con- 
 gress or by a State legislature, prohibiting altogether the 
 carrying of weapons of warfare. But the law against the 
 carrying of concealed weapons is not a total prohibition. 
 It is only a reasonable regulation, established to prevent a 
 serious injury to the public in the enjoyment of this consti- 
 tutional right. It only prohibits the carrying of concealed 
 weapons, and does not interfere with any other mode of 
 carrying them. It is the concealment which is calculated 
 to produce harm to the public. Any one, carrying a 
 weapon for a laudable purpose, will not desire to conceal it. 
 The law against the carrying of concealed weapons has in 
 many cases been declared to be constitutional.^ 
 
 1 Munn V. State, 1 Ga. 243; Aymette v. State, 2 Humph. 154; State «. 
 Buzzard, 4 Ark. 18; State v. Reld, 1 Ala. 612; State v. Mitchell, 3 Blackf. 
 229 ; State o. Jumel, 13 La. Ann. 399; State v. Smith, 11 La. Ann. 633 ; English 
 V. State, 35 Tex. 472 (14 Am. Rep. 374) ; State ». Wilforth, 74 Mo. 528 (41 
 Am. Rep. 330) . In Halle v. State, 38 Ark. 664 (42 Am. Rep. 3) , a statute 
 was held to be constitutional which prohibited the carrying of army pis- 
 tols, unless uncovered and in the hand. 
 
 § 121c 
 
504 POLICE REGULATION OF PERSONAL PROPERTY. 
 
 § liOd. Miscellaneous regulations of the use of per- 
 sonal property. — In Missouri, a municipal ordinance con- 
 ferred upon one person the right to remove and appropriate 
 all carcasses of animals found in the city and not slain for 
 food, to the exclusion of the owner. The statute was sub- 
 jected to judicial construction, and it was held to be uncon- 
 stitutional, so far as it applied to carcasses, which have not 
 become a nuisance, although not slain for use as food.^ As 
 long as the carcasses of animals are not a nuisance to the 
 public, because of their effect upon the public health, they 
 are as much protected by constitutional guaranties, as th& 
 live animals. 
 
 The agricultural communities of the South suffer greatly 
 from the depredations of thieves on the unharvested crop^ 
 and particularly from the stealing of cotton. As a means 
 of checking this pillage, a statute was enacted in Alabama, 
 which made it unlawful "for any person to transport or 
 move after sunset and before sunrise of the succeeding day," 
 within certain counties. " any cotton in the seed," but per- 
 mitted the owner or producer to remove it from the field to 
 the place of storage. This was held to be a reasonable 
 police regulation, and not an unconstitutional interfei'ence 
 with the rights of private property.^ It is a rather 
 peculiar regulation, and may possibly be open to scientific 
 objection, but it is no doubt constitutional. It is made in 
 the interest of the farmer ; and since the statute reserves to 
 the owner or producer the right to remove the cotton after 
 nightfall from the field to a place of storage, the regulation 
 may be considered as being confined to the prohibition of 
 all trading or dealing in cotton after sunset and before sun- 
 rise, and does not interfere with any other harmless use of 
 it by the owner. 
 
 ' Klver Eendering Company v. Behr, 77 Mo. 91 (46 Am. Rep. 6). 
 " Davis V. State, 68 Ala. 58 (44 Am. Rep. 128). 
 
 § UOd 
 
LAWS REGULATING USB OF DOMESTIC ANIMALS 505 
 
 Sbction 141.— Laws regulating use and keeping of domestic animals. 
 141(1. — Keeping of dogs. 
 liib. — Laws for the prevention of cruelty to animals. 
 
 § 141. Laws regulating use and keeping of domestic 
 animals. — The common law has always recognized a right of 
 property in domestic and domesticated animals, the keeping of 
 which serves some useful purpose, such as cows, sheep, fowls, 
 horses, oxen, etc. ; and now a certain right of property is 
 recognized in every species of animal, which may be sub- 
 jected to the control of man, whether they retain their wild 
 nature, or whether it is completely subdued. The only differ- 
 ence between the right of property in a cow or other com- 
 pletely domesticated animal and in some wild or half-tamed 
 beast, is the degree of care required in the keeping of them, 
 in order to prevent injury to the public. For the common 
 law required the owner of every kind of animal to so guard 
 and keep him, as that no injury should result to another; 
 and gave to the one injured a right of action for damages 
 against the owner of the animal, if he had not exercised that 
 degree of care which in ordinary cases may be required to 
 avert an injury to others.^ Thoroughly domesticated ani- 
 mals, such as cattle, sheep, swine, and the like, which may 
 reasonably be presumed to exhibit no vicious propensity, 
 are at common law permitted to go at large, and the owner 
 is only responsible for damages when he permits the animal 
 to go at large, when he knows of his vicious propensity. 
 For without such knowledge, he could not have anticipated 
 any injury to others, and he was therefore guilty of no neg- 
 ligence.^ But all animals, whether tame or wild, are liable 
 in quest of food to trespass upon the lands adjoining the 
 highway ; and the owner of an animal incurred at common 
 law a liability for all trespasses made by animals which he 
 
 1 Cooley on Torts, 348-350. 
 
 * Cooley on Torts, p. 341-348, and cases there cited. 
 
 § 141 
 
506 POLICE REGULATION OF PERSONAL PROPERTY. 
 
 allowed to go upon the highway unattended.^ But if one 
 is driving cattle through the highway, as one has a right to 
 do, independently of statute, and one of the animals should 
 get away from the herd, and trespass upon the adjoining 
 land ; if he has exercised all the care that may be expected, 
 under the circumstances, from a reasonably prudent man, 
 the owner of the land cannot recover of him for the damage. 
 It is a case of damnum absque injuria.^ 
 
 Respect for public decency would require the owners of 
 stallions and bulls to keep them carefully housed, and the 
 law may very properly prohibit the keeping and exhibition 
 of them in public places.' 
 
 This is a summary statement of the common-law rights 
 of property in animals and their attendant duties. But of 
 course these may be subjected to further statutory regula- 
 tion, and they have been. In every State the keeping of 
 live stock is under police regulation. In some communities 
 the common-law rule still prevails, that the owners of stock 
 are liable for all trespasses of their stock upon the lands of 
 others, although there is no enclosure about the land, where 
 they allow their stock to roam at large. In other com- 
 munities the owners of lands are required to maintain en- 
 closures that will be an effective barrier to all trespasses of 
 stock, and a right of action is given for only those trespasses 
 which occur in spite of the enclosure. The clash of inter- 
 est between stock-raising and farming calls for the inter- 
 ference of the State by the institution of police regulations; 
 and whether the regulations shall subordinate the stock- 
 raising interest to that of farming or vice versa, in the case 
 of an irreconcilable difference, as is the case with respect to 
 the going-at-large of cattle, is a matter for the legislative 
 discretion, and is not a judicial question. In the exercise 
 of this general power of control over the keeping of live 
 
 * Cooley on Torts, and cases there cited. 
 
 « Cooley on Torts, 341. 
 
 » Nolin V. Franklin, 4 Yerg. 163. 
 
 § 141 
 
KEEPING OF DOGS. 507 
 
 stock, the State or municipal corporation may prohibit alto- 
 gether the running at large of such animals, and compel 
 the owners to keep them within their own enclosures ; and 
 provide as a remedy for enforcing the law that the animals 
 found astray shall be sold, after proper notice to the owner, 
 and time allowed for redemption, paying over to the owner 
 the proceeds of sale, after deducting what is due to the State 
 in the shape of penalty.^ 
 
 § 141a. Keeping of dogs. — Laws for the regulation of 
 the keeping of dogs are very much more common than the 
 xegulation of property in any other kind of domestic ani- 
 mals, and deserve special consideration. The right of 
 property in a dog, although supposed at common law to be 
 less valuable, and consequently less deserving of legal pro- 
 tection, has always been recognized. But in consequence 
 of the tendency to be vicious, the dog's life has always been 
 somewhat precarious. No one at common law has a right 
 to kill a dog that is doing no harm, and has exhibited no 
 vicious propensities, even though he may be trespassing 
 upon another's land.'' But not only may one kill any ani- 
 mal damage feasant, if it be necessary for the protection of 
 life and property ; ' but also where a ferocious dog, ad- 
 dicted to biting mankind, is suffered to run at large un- 
 muzzled, it is a common nuisance, and any person may kill 
 it, independently of statute ; and independently of the ques- 
 tion whether it was doing or threatening mischief at the time 
 of the killing, or whether the owner had notice of its dis- 
 position.* But no one has, independently of statute, a 
 
 1 Campen v. Langley, 39 Mich. 451 (33 Am. Eep. 414) ; -Wilcox©. Hem- 
 ming, 58 Wis, 144 (46 Am. Kep.625) ; Rockwell v. Nearing, 35 N. Y. 302; 
 Campbell v. Evans, 46 N. Y. 356 ; Cook v. Gregg, 46 N. Y. 439 ; Varden 
 V. Mount, 78 Ky. 86 (39 Am. Rep. 208) ; Roberts v. Ogle, 38 111. 459. 
 
 » Brent v. Kimball, 60 111. 21 (14 Am. Rep. 35) ; Matthew v. Fiestel, 3 
 E. D. Smith, 90; Dodson v. Moch, 4 Dev. & B. L. 146. 
 
 « Aldrich V. Wright, 53 N. H. 398. 
 
 * Putnam o. Payne, 13 Johns. 312; Maxwells. Palmerton, 21 Wend. 
 
 § Ula 
 
508 POLICE REGULATION OP PERSOSTAL PROPERTY. 
 
 rio;ht to kill a fierce or dangerous dog, if it is kept on the- 
 owner's premises and not allowed to go at large.' 
 
 But the duties of the owners of dogs may be and are 
 frequently changed by statute. The following lengthy 
 quotation from an opinion of the Supreme Court of Massa- 
 chusetts, gives an interesting account of the " dog " legisla- 
 tion in that State, and will serve as an index of similar- 
 legislation in other States. It is given in full, because 
 neighborly disputes over dogs are a frequent source of bad 
 feeling and expensive litigation : — 
 
 " There is no kind of property over which the exercise of 
 this power (of police regulatio^i) is more frequent or neces- 
 sary than that which is the subject of the present action. 
 In regard to the ownership of live animals, the law has long 
 made a distinction between dogs and cats and other domestic 
 quadrupeds, growing out of the nature of the creatures 
 and the purpose for which they are kept. Beasts which 
 have been thoroughly tamed, and are used for burden or 
 husbandry, or for food, such as horses, cattle and sheep, are 
 as truly property of intrinsic value and entitled to the same 
 protection as any kind of goods. But dogs and cats, even 
 in a state of domestication, never wholly lose their wild 
 nature and destructive instincts, and are kept either for 
 uses which depend on retaining and calling into action those 
 vei-y natures and instincts, or else for the mere whim or 
 pleasure of the owner ; and, therefore, although a man 
 might have such a right of property in a dog as to maintain 
 trespass or trover for unlawfully taking or destroying it, 
 yet he was held, in the phrase of the books, to have 
 'no absolute and valuable property' therein which could 
 be the subject of a prosecution for larceny at common 
 
 407; Dualap v. Synder, 17 Barb. 561 ; People v. Board of Police, 15 Abb. 
 Pr. 167; Brown v. Carpenter, 26 Vt. 638; Woolf v. Chalker, 31 Conn. 
 121. 
 
 ^ Perry v. Phipps, 10 Ired. L. 259. 
 S 141a 
 
KEEPING OF DOGS. 509 
 
 law, or even, according to some authorities, of an action of 
 ^Jetiiiue or replevin, or a distress for rent, or which could' 
 make him responsible for the trespasses of his dog on the 
 lands of other persons, as he would be for the trespasses of 
 his cattle.i And dogs have, always been held by the 
 American courts to be entitled to less legal regard and pro- 
 tection than more harmless and useful domestic animals.^ 
 " The damages sought to be prevented by the dog laws of 
 the commonwealth, as declared in the preambles to the 
 «arlier ones, are sudden assaults upon persons, worrying, 
 wounding and killing of neat cattle, sheep and lambs, ' dis- 
 tressing evils from canine madness' and other injuries occa- 
 sioned by dogs. These statutes, which have been the 
 subject of repeated consideration and revision by the legis- 
 lature, with a view of securing these objects, and of afford- 
 ing means for ascertaining the owners and making them 
 liable for the mischievous acts of their dogs, have accord- 
 ingly not only provided that any person might kill a dog 
 assaulting him, or attacking cattle or sheep, out of its 
 owner's enclosure ; and that the owner should be responsi- 
 ble, in either single, double, or treble damages, for mischief 
 committed by his dog ; but have also declared that it should 
 be lawful to kill any dog, as to which the requirements of 
 law had not been complied with under circumstances which 
 have varied in successive statutes. At lirst it was only 
 any dog ' found strolling out of the inclosure or immediate 
 care of its owner,' after due notice to him that it was sus- 
 pected of being dangerous or mischievous ; then ' not hav- 
 ing a collar and certified' to the assessor; and, by later 
 statutes, ' any dog found going at large, not wearing a 
 
 1 Vin. Abr, Trespass Z; Replevin A; 2 Bla. Com. 193; 3 Bla. Com. 7; 4 
 Bla. Com. 234, 23S ; Miltonu . Faudrye, Pop. 116; s. c. nom. Millenc.Fawer, 
 Bendl. 171; Mason v. Keeling, 1 Ld. Raym. 608; s. c. 12 Mod. 336; Bead 
 V. Edwards, 17 C. B. (n. S.) 245; Eegina v. Robinson, 8 Cox Crim. Cas. 
 115. 
 
 2 Putnam v. Payne, 13 Johns. 312 ; Brown v. Carpenter, 26 Vt. 638 ; 
 Woolf V. Chalker, 31 Conn. 121. 
 
 § 141a 
 
510 POLICE REGULATION OF PERSONAL PROPERTY, 
 
 collar ; ' ' found and being without a collar ;' ' being with- 
 out a collar ; ' ' going at large, and not registered in the 
 town clerk's office, or the tax on which had not been paid ; ' 
 * going at large and not licensed and collared ; ' or, finally^ 
 all dogs, not licensed and collared, as required by statute, 
 ' whenever and wherever found.' For the last ten years 
 the statutes have also declared it to be the duty of certain 
 public officers to cause such dogs to be destroyed under the 
 circumstances pointed out ; and have given a remedy against 
 the town or country for any injury done by dogs to other 
 domestic animals. 
 
 ' ' These statutes have been administered by the courts 
 according to the fair construction of their terms, and with- 
 out a doubt of their constitutionality. Under the statute 
 of 1812, chapter 146, which required the owner or keeper of 
 any dog to put a collar about its neck, to be constantly worn, 
 with the name and residence of the owner marked thereon, 
 and declared it to be lawful to kill any dog ' found and 
 being without a collar as aforesaid' (omitting the qualifica- 
 tions of other statutes, of ' going at large ' or ' out of the 
 immediate care of its owner ' ), it was held that no action 
 could be maintained for killing a dog without such a collar, 
 out of his owner's inclosure, although under his immediate 
 care; Chief Justice Shaw saying: ' We think it was the 
 intention of the legislature not to give the owner of a dog 
 a right to maintain an action for destroying him, unless he 
 had, in fact, given that security to the public which the act 
 required.' ^ And a person who, instead of killing a dog 
 being without a collar, converted him to his own use, was 
 held liable to the owner in trover, because in the words of 
 Chief Justice Shaw: ' The object of the statute is, not to 
 confer a benefit on an individual, but to rid society of a 
 nuisance by killing the dog.' ' Similiar statutes have been 
 
 1 Tower v. Tower, 18 Pick. 262. 
 
 2 Cummings v. Perham, 1 Met. 556. 
 
 § 12la 
 
KEEPING OP DOGS. 511 
 
 held in other States to be reasonable and constitutional 
 regulations of police.^ The statute under which this de- 
 fendant justifies provides that the mayor of cities and chsiir- 
 men of selectmen of towns, shall within ten days from the 
 first day of July, annually, ' issue a warrant to one or more 
 police officers or constables, directing them to proceed 
 forthwith either to kill or cause to be killed all dogs within 
 their respective cities or towns, not licensed and collared 
 according to the provisions of this act, and to enter com- 
 plaint against the owners or keepers thereof ; and any per- 
 son may, and every police officer and constable shall, kill or 
 cause ' to be killed all such dogs, whenever and wherever 
 found.' * The warrant here provided for, being general in 
 its form, not founded on oath, nor containing any special 
 designation of object, is not indeed a legal warrant of 
 search and seizure; it is rather an appointment of the 
 officer who is to be specially charged with the duty of exe- 
 cuting the authority conferred by the statute. The statute 
 makes it the duty of every police officer and constable to 
 kill or caused to be killed, all dogs not licensed and col- 
 lared according to its provisions, ' whenever and wherever 
 found.' There are no express restrictions of time or place, 
 and no limitation, as in earlier statutes, to dogs going at 
 large, or out of the owner's enclosure or his immediate 
 care. Any restrictions upon the authority of the officer 
 arise by implication, from regard to the sanctity of the 
 dwelling house or the danger of a breach of the peace. 
 But it is unnecessary in the present cases very closely to 
 consider the extent of such restrictions, if any, which are 
 to be implied upon the power and duty of the officer to 
 abate what the law has declared to be in substance and 
 efCect a public nuisance. The regulations imposed by the 
 statute upon the ownership and keeping of dogs are reason- 
 
 1 Morey v. Brown, 42 N. H. 373; Carter v. Dow, 16 Wis. 298. 
 " Statutes 1867, ch. 130, § 7. 
 
 § 141a 
 
512 POLICE REGULATION OF PERSONAL PEOPERTT. 
 
 able and easy to be complied with. If any dog is an object 
 of value or of affection to its owner, he has only to procure 
 and record a license and put on a collar, in order to bring 
 it under the protection of the law. 
 
 " It is agreed that neither of these plaintiffs had complied 
 with the statute in these respects, and there is nothing in 
 the facts agreed in either of the cases from which it can be 
 inferred that the defendant committed any trespass upon 
 the plaintiff's premises, or any act tending to a breach of 
 the peace. Under the defendant's authority and duty to 
 kill or cause to be killed all dogs not licensed and collared, 
 'whenever and wherever found,' he had clearly a right 
 peaceably to enter for that purpose, without permission, 
 upon the close of the owner or keeper of such a dog, and 
 there kill it." ^ 
 
 Regulations of this general character are to be found in 
 very many, if not most, of the States. In Georgia and 
 New Hampshire, the constitutionality of laws has been sus- 
 tained, which authorized the killing of all dogs without a 
 collar.^ And it has frequently been held lawful for the 
 State, as an encouragement for the rearing of sheep, to dis- 
 courage the keeping of dogs by the requirement of a license 
 fee for each dog.^ And, conceding the right of the State 
 to require a license fee for the keeping of a dog, which is 
 intended to operate as a check upon the keeping of dogs, 
 the amount of the license is not open to judicial revision. 
 It cannot be confined by judicial intervention to the mere 
 expense of issuing the license. In order to operate as a 
 restraint upon the keeping of dogs, the amount of the 
 license must be large enough to make it burdensome to keep 
 
 1 Blair w. Forehand, 100 Mass. 136 (1 Am. Eep. 94). 
 
 * Morey». Brown, 42 N. H.373; Cranston v. Mayor of Augusta, 61 Ga. 
 672. 
 
 3 Mitchell V. Williams, 27 Ind. 62 ; Carter v. Dow, 16 Wis. 298 ; Ten- 
 ney o. Lenz, 16 Wis. 566; State v. Cornwall, 27 Ind. 62;Holts v. Eoe, S. 
 0. Ohio, 5 Ohio Law J. 605. 
 
 § 141a 
 
LAWS FOR PREVENTION OF CEUELTT TO ANIMALS. 513 
 
 dogs, and, as has been tally explained in connection with 
 ,, the discussion of licenses in general,^ the imposition of such 
 licenses, as a restraint upon the doing of some thing which 
 inflicts or threatens to inflict injury on the public, is free 
 from all constitutional objections.^ 
 
 In many of the States compensation is given by statute 
 to the owners of the sheep killed by dogs, and a summary 
 proceeding is usually provided for recovering damages from 
 the owner of the dog. But in order to be constitutional, 
 the act must provide for a judicial examination of the wrong 
 •done and the damage suffered, with a full opportunity for 
 the owner of the dog to be heard. In New Hampshire a 
 statute of this kind was declared to be unconstitutional so 
 far as it undertook to bind the owner of the dog by the 
 amount of damages, which had been fixed by the select- 
 men of the town without giving him an opportunity to be 
 heard on the question of damages.' 
 
 § 1416. Laws for the prevention of cruelty to ani- 
 mals. — From a scientific standpoint, perhaps the most 
 curious phase of the exercise of police power is embodied 
 in the laws for the prevention of cruelty to animals. These 
 laws now prevail very generally throughout the United 
 
 1 See ante, § 101. 
 
 2 " We cannot assent to the position taken by appellant, that it the sum 
 required for a license exceeds the expense of issuing, the act transcends 
 the licensing power and imposes a tax. By such a theory the police 
 power would be shorn of all its efllciency. The exercise of that power is 
 baaed upon the idea that the business licensed or kind of property regu- 
 lated, is liable to work mischief, and therefore needs restraints, which 
 shall operate as a protection to the public. For this purpose the license 
 money is required to be paid. But if it could not exceed the mere 
 ■expense of issuing the license, its object would fail altogether. * * * 
 We have no doubt, therefore, that the legislature may, in regulating any 
 matter that is a proper subject of police power, impose such sums for 
 licenses as wUl operate as partial restrictions upon the business, or 
 upon the keeping of particular kinds of property." Tenney v. Lenz, 16 
 Wis. 667. 
 
 » East Kingston®. Towle, 48 N. H. 57 (2 Am. Eep. 170). 
 
 33 § 1416 
 
514 POLICE REGULATION OF PERSONAL PROPERTY. 
 
 States, and public sentiment is in most communities unusually- 
 active in its support, and is not restrained by any difficulty 
 in finding a scientific justification for the law. The enact- 
 ment and enforcement of the law are prompted by a tender 
 sympathy for the dumb brutes, who while serving human ends 
 are being subjected to cruelty. These statutes are designed, 
 as the language of the statutes expressly indicates, for the pre- 
 vention of cruelty to animals. Whose rights are protected 
 by the enactment? Those of the animals? Are animals, 
 other than human beings, recognized as the subjects of 
 rights? Cruelty to animals might be claimed as an ofi'ense 
 against public morality and the public sense of mercy. 
 But that is in the nature of an afterthought, suggested as 
 an escape from the logical dilemma, with which one is other- 
 wise confronted in the consideration of these laws. What- 
 ever may be said to the contrary, in the enactment of these 
 laws, there is an unconscious, if not admitted, recognition 
 of legal rights in the dumb animals, who are subjected to 
 man's dominion. They are by such legislation placed in the 
 same legal relation to the freeman as (the slave was in the 
 days of slavery. Both are the property of the freeman j 
 the master's power of control was limited only by just 
 such laws, as the one now under consideration, which were 
 designed to prevent cruelty in their treatment. It is th& 
 torture to the animal that is prohibited, wherever it was 
 done.^ If the law was considered and justified merely as 
 the prohibition of an offense against the public sense of 
 mercy, and involved no recognition of rights in the dumb 
 animals, the operation of the law would have to be confined 
 to public acts of cruelty, such as unmerciful beating on the 
 streets and other thoroughfares. But it is plain that the or- 
 dinary law for the prevention of cruelty to animals is broken 
 as much by cruel treatment in the stable as in the public 
 highway ; whether done in the presence of a large assembly^ 
 
 1 See State o. Pugh, 15 Mo. 509. 
 § 1416 
 
EEGXn.ATION OP CONTRACTS AND EIGHTS OF ACTION. 515 
 
 as in the cock-pit, or with no others present than the person 
 whose anger or pure maliciousness induces the act of cruelty. 
 The animals'so protected must be recognized as subjects of 
 legal rights. And why should they not be so recognized? 
 Is it not self-conceit for man to claim that he alone, of all 
 God's creatures, is the possessor of inalienable rights ? 
 
 § 142. Begulation of contracts and righta of action. 
 
 The validity of an ordinary contract cannot be impaired by 
 State legislation, for it is protected from such an attack by 
 an express provision of the Federal constitution.^ Any law, 
 therefore, which changes the character of the obligation, 
 either by diminishing or increasing its burden, is void be- 
 cause it impairs the obligation.* The obligation of the con- 
 tract, which is thus protected from impairment, is civil and 
 not moral ; that is, the law must be legal, according to the 
 provisions of the law in force when the contract was made, 
 in order that it may claim this protection. An illegal con- 
 tract creates or supports no rights, in short, has no legal 
 existence.* It will not be necessary to explain in this place 
 
 * " No State shall pass any law impairing the obligation of a contract." 
 U. S. Const., art. I, § 10. 
 
 2 Douglass v. Pike Co., 101 U. S. 677; McCracken v. Hayward, 2 How. 
 608, 612 ; Ogden v. Saunders, 12 Wheat. 213 ; People v. IngersoU, 58 N. Y. ; 
 Goggans v. Turnipseed, 1 S. C. 40 (7 Am. Kep. 23) ; Stein ». Mobile, 49 
 Ala. 362 (20 Am. Bep. 283) ; Van Baumback v. Bade, 9 Wis. 659. And the 
 constitDtional prohibition applies to changes in the State constitutions as 
 weU as to amendments of the statutes. White v. Hart, 13 Wall. 646 ; Os- 
 bom V. Nicholson, 13 Ark. 654 ; Oliver v. Memphis, etc., E. E. Co., 30 Ark. 
 128; Jacoway v. Denton, 25 Ark. 641. 
 
 ' " It is the civU obligation which [the constitution] is designed to 
 reach; that is, the obligation which is recognized by, and results from, 
 the law of the State in which it is made. If, therefore, a contract when 
 made is by the law of the place declared to be illegal, or deemed to be a 
 nullity, or a nude pact, it has no civil obligation ; because the law in such 
 cases forbids its having any binding eflScacy or force. It confers no legal 
 right on the one party, and no corresponding legal duty on the other. 
 There is no means allowed or recognized to enforce it; for the maxim is 
 ex nudo pacta non oritur actio. But when it does not fall within the pre- 
 
 § 142 
 
516 POLICE EEGULATION OF PERSONAL PROPERTY. 
 
 hew far laws may be enacted for the regulation of subse- 
 qii4nt contracts, for this matter has been fully discussed in 
 ^Bother connection.^ Nor is it necessary or appropriate to 
 eil^iin here in detail what is included under the term " con- 
 tJy*cH'" in the sense in which the word is used in the con- 
 stitutJonal provision referred to.^ The term contract is here 
 employed in the sense of " executory contract," an agree- 
 meaaibitettween two or more, for a valuable consideration, to 
 djjl dCagajM^iSomething. 
 
 -^;dril®jOOB9tJ!tutional provision against impairing the obliga- 
 tion; io| obnt^^acts is held to be binding only upon the States., 
 Putitiigrletoaaibe no doubt that similar action by Congress 
 wohldolifeevfiM) be unconstitutional, because it would de- 
 piiiKeoooeiof(iMft;J»roperty without due process of law.* 
 l)njA.llvkiglat,afi®f(i§very description may be violated, and 
 rnfejsnalu^hiijsdlito:!^ prohibits the individual from redressing 
 MbiowTum/ra&^iheds. entitled to an appropriate action in the 
 kiwccbiirtSi bfiMie cflubtry. A denial of this right of action 
 ■W!9;aldjb6;/afe ^oda art interference with the right that has 
 beefaiVdiolated4iiai$f|iieififfiginal trespass was. If the violated 
 right is a broken contract, an absolute refusal of all 
 feaffi^o JsvHiul^jiiHPftMaf thp obligation of a contract in a 
 constitutional sense, and the law taking away all remedies 
 i^^°M; V-¥ka.'*^f '!F3^^ a^Mike reason, a law, which 
 ISquMote^Pfil'Wy-cftsM'^fiffi^ for the violations of other 
 vUgM^ \*htettiSi'0Q(fr)x;peBaaa9mOir of property, would ap- 
 
 gji aaorJijJiJiiuoo 9tiiJ8 eiii in i-yj-gciado oJ 
 
 di©anJWilt.Hfi'Bfei8ife4ljWHrillegair»rv»al/jttB obligatory force is co-extensive 
 vf^th {4i etl^uH.tiilas;;!!!'') .SUnrijiioMQDXi^HltQtion, § 1380. 
 
 1 See ante, §§ 90, 93-100. .li-ii rAi 
 
 o} ^jE^^f a:>diBCt[9Bl!(»tlJiitfi8tMa anibjecfbato Gooley Const. Lim., pp. 331-34:6- 
 WWihfeifthKi (ft)iaearf()!4ri3of iBSDporatiodsiiallrjiroperly within tlie meaning 
 tfild''gd9pifcJOf'4Ws,'jpiidvtsitfh,)iee.ffe«fpf.ilfiaJoii, 
 II ;j»I S4dittfa8y§> sa.,Ij:5'»IIl ad o3 boiiijoh tionlq t. 
 
 Jlai*«(WbaM®^'*.9«ii2itoIspnjilBjjTOMllifi62()ii(Ml M. Hagger, 8 Mass. 430; 
 :&felMfc(»*«'lJl)fie>C!inali'Ool,-6S'iBayiBti^i(3fl?llopBson v. Commonwealth, 
 8i?ipa. Sr{) 3Ki fiWasJa-m^jSsfaaimx^t^-r&aii 2&6 ;f)Bis(>^ v. Farr, 24 Ark. 161 ; 
 GiMaii«; WUaoi„-31 j3id^B?0c))Mo£Ia4^aa<^viaBiatl«ivi8 Minn. 116; Jacksoa 
 
REGULATION OF CONTRACTS AND RIGHTS OF ACTION. 517 
 
 pear to violate the legal sanctity of the substantive right. 
 If it be a right of property that has been transgressed, the 
 deprivation of the right of action would be an interference 
 with vested rights ; and so also would it be an infringement 
 of one's personal security, if a right of action was denied 
 for a trespass upon one's person or liberty. But it has 
 been held by the United States Supreme Court that a 
 constitutional convention of a State may take away existing 
 rights of action, provided the obligation of a contract is not 
 impaired, or a punishment inflicted.* There is certainly no 
 express provision of the constitution which protects these 
 rights of action from interference by legislation; but it 
 would seem to us that the constitution protects from undue 
 interference the right to resort to the courts for redress 
 of one's wrongs, as much as it does the right to pursue 
 a harmless occupation. They are equally essential to the 
 pursuit of happiness. It would be an act of tyranny for a 
 government to deny the right to redress one's own wrongs, 
 and at the same time to refuse an appropriate remedy. 
 It is probable that the Supreme Court would have decided 
 differently, if the constitutional provision under consider 
 ation had had reference to other rights of action than those 
 growing out of the conflict of war. 
 
 But as long as a substantial remedy is provided, the char- 
 acter of it may be changed at the-pleasure of the legislature ; 
 and when it applies to the enforcement of a contract, such 
 a change, however material, will not be considered to impair 
 the obligation of a contract, even though the change is to 
 a less desirable or convenient remedy.^ The most radical 
 
 1 Drehman v. Stilel, 41 Mo. 184; s. c. 8 Wall. 695. See Hess v. John- 
 son, 3 W. Va. 645. In tlie first case, the constitutional provision took 
 away all rights of action for anything done by the State or Federal 
 military anthorities during the civil war. 
 
 » Ogden V. Saunders, 12 Wheat. 213; Beers ». Hanghton, 9 Pet. 329; 
 Tennessee v. Sneed, 96 U. S. 69 ; Simpson w. Savings Bank, 66 N. H. 466 ; 
 Banks v. Quackenbush, 1 N. Y. 129; Morse v. Goold, 11 N. Y. 281 ; Bald- 
 win V. Newark, 38 N. J. 158 ; Moore u. State, 43 N. J. 203 ; Evans v. Mont- 
 
 § 142 
 
518 POLICE REGULATION OV PERSONAL PROPERTY. 
 
 changes are permissible, as long as a substantial remedy 
 remains. Thus a law may take away from existing con- 
 tracts the right to confine the debtor, and yet not impair 
 the obligation of the contract. " Confinement of the debtor 
 may be a punishment for not performing his contract, or 
 may be allowed as a means of inducing him to perform it. 
 But the State may refuse to inflict this punishment, or may 
 withhold this means, and leave the contract in full force. 
 Imprisonment is no part of the contract, and simply to 
 release the prisoner does not impair the obligation," * 
 
 The rules of evidence may also be changed without affect- 
 ing the substantive rights involved. No one can be said to 
 
 gomery, i Watts & S. 218; Penrose v. Brie Canal Co., 66 Pa. St. 46; 
 Baumgardner v. Circuit Court, i Mo. 60; Porter v. Mariner, 50 Mo. 364; 
 Smith V. Van Gilder, 26 Ark. 521 ; Coosa River St. B. Co. v. Barclay, 30 
 Ala. 120; Halloway ®. Sherman, 12 Iowa, 282; Smith v. Packard, 12 Wis. 
 371; Branson v. Newberry, 2 Dougl. (Mich.) 88; Roclcwell v. Hubbell's 
 Admrs. 2 Dougl. (Mich.) 197. 
 
 1 Marshall, C. J., in Scurges v. Crowninshield, 4 Wheat. 122. See 
 Mason «. Haile, 12 Wheat. 370; Penniman's Case, 103 U. S. 714; Matter of 
 Nichols, 8 R. I. 60; Sommers v. Johnson, 4 Vt. 278 (24 Am. Dec. 604) ; 
 Ware v. Miller, 9 S. C. 13 ; Maxey v. Loyal, 38 Ga. 531 ; Bronson v. New- 
 berry, 2 Dougl. (,Mich ) 38. A judgment lien may be taken away by the 
 repeal of the statute authorizing it. Watson v. N. T. Cent. R. R. Co., 
 47 N. Y. 157; Woodbury v. Grimes, 1 Col. 100. But see, contra, Gunno. 
 Barry, 16 Wall. 610. The time of the lien may also be extended before It 
 has expired (Ellis v. Jones, 61 Mo. 180), or the mode of securing it 
 changed before it has attached. Whitehead v. Latham, 83 N. C. 232. See, 
 also, Williams v. Haines, 27 Iowa, 251, in which a statute, which allowed 
 the want of consideration to be set up in defense of an action on a sealed 
 Instrument, was held to be constitutional, because it did not impair the 
 obligation of the contract. On the other hand, where by statute the 
 stockholders are made personally liable for the contracts of the corpora- 
 tion, a statute taking away this liability cannot be made to apply to exist- 
 ing contracts. Hawthorn v. Calef, 2 Wall. 10"; Corning v. McCullough, 
 1 N. Y. 47; Story v. Firman, 25 N. Y. 214; Morris v. Wrenshail, 84 Md. 
 494; Brown v. Hitchcock, 36 Ohio St. 667; Providence Savings Institute 
 V. Skating Rink, 52 Mo. 452. So, also, may the distress for rent be taken 
 away from existing leases. Van Rensselaer v. Snyder, 9 Barb. 308; «. c. 
 13 N. Y. 299; Guild v. Rogers, 8 Barb. 602. And the distress for rent 
 may be abolished, even in cases ia which the parties have expressly stipu- 
 lated for it. Conkey v. Hart, 14 N. Y. 22. 
 § 142 
 
REGULATION OF CONTRACTS AND RIGHTS OF ACTION. 519 
 
 possess " a right to have one's controversies determined by 
 existing rules of evidence." ^ These rules are always subject 
 to change and modification by the legislature, and a new rule 
 can be made to apply to existing rights of action, without in- 
 terfering with vested rights or impairing the obligation of a 
 contract. Thus, alaw could appiy to existing rights of action, 
 which permitted parties in interest to testify.* In the same 
 way may a statute apply to existing rights of action, which 
 changed the burden of proof from the plaintiff to defendant, 
 as, for example, where a tax title is made by statute prima 
 facie evidence of a compliance with the regulations for the 
 sale of land.* But a statute cannot preclude the right to a 
 judicial examination into the facts of a case, by making a 
 certain set of circumstances conclusive evidence of the ex- 
 istence of the right of the plaintiff to recover or to be non- 
 suited. Except in the case of estoppel, where a man is 
 denied the right to question the truth of his representations 
 which he has made falsely to another's hurt, there can be 
 no prejudgment of one's rights by the creation of conclu- 
 sive presumptions.* 
 
 1 Cooley Const. Lim. 452. 
 
 2 Rich O.Flanders, 39 N. H. 304; Southwick v. Southwick, 49 N. Y. 610. 
 So, also, a statute which admits parol evidence to contradict a written 
 instrument. GIbbs v. Gale, 7 Md. 76. See, generally, Ogden u. Saun. 
 ders, 13 Wheat. 213; Webb v. Den, 17 How. 676; Eales v. Wadsworth, 28 
 Me. 553; Pratt v. Jones, 26 Vt. 303; Neass v. Mercer, 15 Barb. 318; 
 Howard v. Moot, 64 N. Y. 262 ; Commonwealth v. Williams, 6 Gray, 1 ; 
 Kamey ». Paisley, 13 Iowa, 89. 
 
 » Hand o. Ballou, 12 N. Y. 641; Porbes ». Halsey, 26 N. Y. 63; Lacey 
 ■B.Davis, 4 Mich. 140; Wright v. Dunham, 13 Mich. 414; Delaplalne o. 
 Cook, 7 Wis. 44; Lumsden v. Cross, 10 Wis. 282; Adams ». Beale, 19 
 Iowa, 61 ; Abbott «. Lindenbower, 42 Mo. 162; s. c. 46 Mo. 291 
 
 * Tift V. Griffin, 5 Ga. 185; Little Rock, etc., R. R. Co. v. Payne, 33 
 Ark. 816 (34 Am. Rep. 65) ; Abbott v. Lindenbower, 42 Mo. 162; s. c. 46 
 Mo. 291 ; Young v. Beardsley, 11 Paige, 93 ; East Kingston v. Towle, 48 
 N. H. 67 (2 Am. Rep. 174) ; Allen v. Armstrong, 16 Iowa, 508; Conway ». 
 Cable, 37 111. 82; White v. Plynn, 23 Ind. 46; Groesbeck v. Seeley, 13 
 Mich. 329; Lenz i>. Charlton, 23 Wis. 478; Taylor v. Miles, 6 Kan. 498 (7 
 Am. Rep 668) ; Wright v. Cradlebaugh, 3 Nev. 341. In the case last cited 
 
 § 142 
 
520 POLICE REGULATION OF PERSONAL PROPERTY. 
 
 It has also been very generally held to be no impairment of 
 the substantive rights of action, if a law should be enacted 
 exempting certain property of the debtor from execution, 
 to an extent not permitted when the contract was executed 
 or the judgment was obtained. "Regulations of this de- 
 scription have always been considered, in every civilized 
 community, as properly belonging to the remedy to b& 
 exercised or not, by every sovereignty, according to its 
 own views of policy or humanity. It must reside in every 
 State to enable it to secure its citizens from unjust and 
 harassing litigation, and to protect them in those pursuits 
 which are necessary to the existence and well being of every 
 community." ^ But an act, which exempted all the prop- 
 erty of the debtor from execution, would, like the law which 
 deprived the creditor of all remedies, be void because it im- 
 
 the court say : " We apprehend that it is beyond the power of the legisla- 
 ture to restrain a defendant in any suit from setting up a good defense ta 
 an action against him. The legislature could not directly take the property 
 of A. to pay the taxes of B. Neither can it indirectly do so by depriving 
 A. of the right of setting up in his answer that his separate property has. 
 been jointly assessed with that of B., and asserting his right to pay his 
 own taxes without being incumbered with those of B. * * * Due 
 process of law not only requires that a party shall be properly brought 
 into court, but that he shall have the opportunity when in court to estab- 
 lish any fact which, according to the usages of the common law, or th& 
 provisions of the constitution, would be a protection to him or his prop- 
 erty." 
 
 1 Taney, C. J., in Bronsons. Kinzie, 1 How. 311, 315; Quackenbush ©. 
 Banks, 1 Denis, 128 ; s. c. 8 Denlo, 594 ; s. c. 1 N. Y. 129 ; Morse v. Goold,. 
 11 N. Y. 281; Hill v. Kessler, 63 N. C. 437; Martin v. Hughes, 67 N. C. 
 293 ; In re Keauedy, 2 S. C. 216 ; Hardeman v. Downer, 39 Ga. 425 ; Maull 
 V. Vaughn, 45 Ala. 134; Sneider o. Heidelberger, 45 Ala. 126; Farley w.. 
 Dowe, 45 Ala. 324; Breitung v. Lindauer, 37 Mich. 217; Sprecker v. 
 Wakeley, 11 Wis. 432 ; Coleman v. Ballandi, 22 Minn. 144 ; Cusic v. Doug- 
 lass 3 Ran. 123. But, of late, there has been a change in the current of 
 judicial authority, and the tendency now is to deny the constitutionality 
 of the changes in the exemption laws in their application to existing con- 
 tracts. See, to that effect, Duncan v. Burnett, 11 S. C. 333 (32 Am. Eep. 
 476) ; Wilson v. Brown, 58 Ala. 62 (29 Am. Rep. 727) ; Johnson v. Fletcher, 
 54 Miss. 628 (28 Am. Eep. 388). 
 § 142 
 
EEGUI.ATION OP CONTRACTS AND EIGHTS OF ACTION. 521 
 
 paired the obligation of a contract.^ It has been held, on 
 the other hand, that homestead laws cannot be made to 
 restrict the right of execution on existing contracts, where 
 there had previously been no homestead law.^ But a home- 
 stead can be claimed against judgments procured on exist- 
 ing rights of action arising out of torts, since these claims 
 do not become debts until they are reduced to judgment.* 
 
 Another interesting phase of the regulation of rights of 
 action is involved in the enactment of bankruptcy and insol- 
 vency laws. The power of the United States, by the enact- 
 ment of bankrupt laws, to provide for the release of the debtor 
 from his contractual obligations on the surrender of his assets 
 to his creditors, cannot be questioned, because the power is 
 expressly given by the Federal constitution.* And it has 
 been settled by the decisions of the United States Supreme 
 Court that the several States may provide similar legisla- 
 tion, subject to the paramount control of Congress. When 
 there is a federal bankrupt law, it supersedes the State 
 law of insolvency ; but the latter come into operation again 
 upon the repeal of the national bankrupt law.' But the 
 State insolvent law, not being authorized by an express con- 
 stitutional provision, cannot be made to apply to existing 
 
 1 State V. Bank of South Carolina, 1 S. C. 63. 
 
 " Gunn V. Barry, 15 Wall. 610; Edwards v. Kearzey, 96 U. S. 595; 
 Homestead Cases, 22 Gratt. 266 (12 Am. Rep. 507) ; Garrett v. Cheshira, 
 69 N. C. 396 (12 Am. Bep. 647) ; Lessley v. Phlpps, 49 Miss. 790. 
 
 » Parker v. Savage, 6 Lea, 406. 
 
 < U. S. Const., art. I., § 8. 
 
 * SeeStnrgiso. Crowninshield, 4 Wheat. 122; Farmers' and Mechanics' 
 Bk. V. Smith, 6 Wheat. 131 ; Ogden v. Saunders, 12 Wheat. 213 ; Baldwin v. 
 Hale, 1 Wall. 223. But the State insolvent laws can have no application 
 to contracts made without the State, or to those made between citizens of 
 different States, unless all the parties to the contract come into court and 
 voluntarily submit to the operation of the State laws. McMillan v. 
 McNeil, 4 Wheat. 209; Ogden v. Saunders, 12 Wheat. 213; Clay v. Smith, 
 3 Pet. 411; Boyle v. Zacharie, 6 Pet. 348; Suydam v. Broadnax, 14 Pet. 
 67; Cook v. Moffat, 5 How. 295; Baldwin v. Hale, 1 Wall. 223; Baldwia 
 ■p. Bank of Newbury, 1 Wall. 234; Gilman v Lockwood, 4 Wall. 409. 
 
 § 142 
 
522 POLICE REGULATION OF PERSONAL PROPERTY. 
 
 contracts, since they cmmot be considered as having been 
 made in contemplation of such a law. State insolvent laws 
 can only apply to future contracts.^ 
 
 While a law would be invalid which denied to one all 
 remedy for the redress of his wrongs; and while resort 
 to the courts for a vindication of one's rights may be 
 considered as an absolute right, which cannot be arbitrarily 
 taken away ; it is nevertheless true that it is not the duty 
 of the State to keep its courts open indefinitely for the 
 institution of private suits. It has performed fully its 
 duty to the citizen, when it has opened its courts to him 
 for a reasonable time after the right of action has accrued. 
 It is also injurious to the public welfare to permit suits upon 
 stale claims ; for the permission of them gives an opportu- 
 nity for the perpetration of fraud and the infliction of in- 
 justice, in consequence of the intermediate loss of evidence 
 and death of witnesses, which prevent the defendant from 
 meeting and disproving the claim of the plaintiflT. For 
 these reasons it has for time immemorial, and in all sys- 
 tems of jurisprudence, been considered wise and proper, by 
 the enactment of statutes of limitation, to compel all rights 
 of action to be prosecuted within a reasonable length of 
 time after the action has accrued. And it is also the settled 
 rule of American constitutional law that the amendments to 
 the statutes of limitation can be made to apply to existing 
 contracts without impairing their obligation in a constitu- 
 tional sense, provided after the enactment a reasonable time 
 is given for the institution of the suit.* 
 
 > Ogden V. Saunders, 12 Wheat. 213. 
 
 " See Terry v. Anderson, 95 U. S. 628 ; Proprietors, etc., v. Laboree, 2 
 Me. 294; Call ». Hagger, 8 Mass. 423; Smith i). Morrison, 22 Pick, 430; Da- 
 vidsons. Lawrence, 49 Ga. 335; Kimbro v. Bk. of Fulton, 49 Ga. 419; Hart 
 V. Bostwick, 14 Fla. 162; Barry v. Eansdell, 4 Met. (Ky.) 292; O'Bannon 
 V. Louisville, 8 Bush, 348; Blackford v. Pettier, 1 Blackf. 36; DeMoss v. 
 Newton, 31 Ind. 219; Prices. Hopkin, 13 Mich. 318; Osborne d. Jainea, 17 
 Wis. 673; State v. Messenger, 27 Minn. 119; Adamaon v. Davis, 47 Mo. 
 § 142 
 
REGULATION OF SHIPS AND SHIPPING. 523 
 
 § 143. Regulation of ships and shipping. — In con- 
 sequence of the exposure to the dangers of the sea, there 
 would be more or less danger of accident and damage to 
 others, in the use of ships, if there were not some legal 
 regulation of their construction and management. All 
 police regulations are therefore lawful, which are designed, 
 and tend, to diminish the dangers of sea voyaging. They 
 are not subject to any constitutional objections. 
 
 In the first place, it is lawful to prohibit the use of unsea- 
 worthy vessels, and to provide for the inspection of all 
 vessels and the condemnation of those that are defective.^ 
 The United States government under the Federal statutes 
 have appointed oflScers, whose duty it is to perform this ser- 
 vice to the traveling public. It is also common to limit by law 
 the number of passengers and the amount of freight which a 
 vessel may be permitted to carry ; " and it is not unreason- 
 able to require the master or purser of a vessel to furnish 
 to some public ofiicer a statement of the amount of freight 
 or the number of passengers he may have on board. ^ The 
 overloading of a boat with freight or passengers may be 
 considered an actual trespass upon the right of personal 
 security of all those who may be on board of the vessel. 
 
 The skill or ignorance of the master or captain, and 
 other officers in charge of the vessel, is of the utmost im- 
 portance to those who entrust their person or property to 
 their care ; and it is consequently permissible to require all 
 those who are applicants for such positions to submit to 
 examinations into their qualifications, and receive a certifi- 
 cate of qualification, without which they cannot assume the 
 
 268 ; Keith v. Keith, 26 Kan. 27. See a fuller discussion of the subject in 
 €ooley Const. Lim. 448-451. 
 
 1 Thus, it -was held to be a reasonable regulation, which provided for 
 the inspection of boilers of vessels. Bradley v. Northern, etc., Co., 15 
 Ohio St. 553, 
 
 2 St. Louis V. McCoy, 18 Mo. 238; St. Louis v. Bofflnger, 19 Mo. 13. 
 8 Canal Commissioners v. Willamette Transp. Co., 6 Ore. 219. 
 
 § 143 
 
524 POLICE EEGULATION OF PERSONAL PROPERTY. 
 
 duties of such a post. This is so common and reasonable a 
 regulation that it has never been questioned .^ 
 
 The navigation of a vessel also requires some regulation 
 by law to remove doubt and uncertainty, and to insure uni- 
 formity in the rules. The principal legal rules of naviga- 
 tion are those relating to the use of colored lights at night,, 
 the regulation of fog signals, and the rules for steering- 
 when two or more vessels come into close neighborhood. 
 These regulations are designed to prevent collision, and a 
 detailed discussion of them may be found in any work on 
 shipping and admiralty. It is not necessary to mention 
 them here. We are only concerned with a consideration 
 of the constitutionality of such laws in general. This reg- 
 ulation by law of the rules of navigation consists chiefly in 
 adopting as legal and binding rules those which had met 
 with the approval of the best part of the marine world, and 
 the object of the interference of the government is to se- 
 cure fixity and uniformity. The constitutionality of these 
 police regulations has never been questioned. 
 
 The navigation of a vessel in mid-ocean involves no 
 special difficulty to any one who is at all skilled in naviga- 
 tion. But the entrance into a harbor does require a pecu- 
 liar knowledge of the coast and of the currents in and out 
 of the bay or river. It would, therefore, be reasonable to 
 require all vessels, on entering a harbor, to be placed in 
 charge of a licensed pilot, and, inasmuch as the law makes 
 it obligatory upon the pilot to beat up and down the coast 
 in search of vessels, which are bound for the port, it is 
 held to be reasonable to compel the master or captain to 
 accept the services of the first pilot who oflfers.' 
 
 1 See ante, § 87, in respect to the police regulation of skilled trades and 
 learned professions. 
 
 2 Thompson v. Spraigue, 69 Ga. 409 (47 Am. Kep. 760). See Sher- 
 lock V. Ailing, 93 tJ. S. 99. As to whether the United States or the States 
 have the power to regulate the matter of pilotage, see post, 204. 
 
 § 143 
 
CHAPTER Xn. 
 
 POLICE EEGITLATION OF THE RELATIOlf OF HUSBAND AND 
 
 WIFE. 
 
 Skction 149. Marriage, a natnral status, subject to police regulatioa 
 
 150. Constitutional limitations upon the police control of mar- 
 
 riages. 
 
 151. Distinction between natural capacity and legal capacity. 
 
 152. Insanity as a legal incapacity. 
 
 153. The disability of infancy in respect to marriage. 
 
 154. Consanguinity and affinity. 
 
 155. Constitutional diseases. 
 
 156. Financial condition — Poverty. 
 
 157. Differences in race — Miscegenation. 
 
 15&. Polygamy prohibited — Marriage confined to monogamy. 
 
 159. Marriage indissoluble — Divorce. 
 
 160. Regulation of the marriage ceremony. 
 
 161. Wife in legal subjection to the husband — Its justification. 
 
 162. Husband's control of wife's property. 
 
 163. Legal disabilities of married women. 
 
 § 149. Marriage, a natural status, subject to police 
 regulation. — Whatever may be one's views conceming 
 the philosophical origin of the institution of marriage ; it 
 matters not whether it is viewed as a divine institution and 
 a sacrament, or as the natural result of the social and 
 physiological forces ; all are agreed that it has its founda- 
 tions in nature, and is not a human contrivance. Mankind 
 cannot be conceived as existing without this status, for the 
 marital relation is co-existent with, and must have accom- 
 panied, the beginning of the creation. The natural element 
 of marriage is discoverable in like relationships among most, 
 if not all, of the lower animals. It is, therefore, but a 
 natural status, one that is brought into existence by natural 
 forces, and cannot be successfully prevented or abolished. 
 The natural status of marriage works for the good or woe 
 of mankind, according as it is founded in purity and rests 
 
 (525) § 1*9 
 
526 REGULATION OF KELATION OV HUSBAND AND WIFE. 
 
 upon sound spiritual and physical foundations, or assumes a 
 contrary character. The welfare of society is inseparably 
 wrapped up with the success of the marital relations of its 
 members : and ill-assorted marriages, marriages between 
 persons who are either mentally or physically unfit to enter 
 into the relation, will surely bring harm to society ; while 
 appropriate marriages constitute the very foundation of 
 society, and its welfare depends upon the fostering and 
 encouragement of them. Indeed nations have often pro- 
 vided inducements to enter into the relation, at times when 
 the general extravagance of the people deterred them from 
 assuming the responsibilities of husband and wife. If, 
 therefore, a happy marriage between competent parties 
 redounds to the lasting benefit of society, and a marriage 
 between persons, who through mental or physical defic- 
 iencies are incapable of contracting a happy marriage, 
 produces harm to the State, surely the State is interested in 
 promoting and encouraging the former, and discouraging 
 and preventing the latter. The State may, therefore, insti- 
 tute regulations having that purpose in view, in the exercise 
 of the ordinary police power. The right of the State to 
 regulate marriages, determining the capacities of parties, and 
 the conditions of marriage, has never been questioned. 
 Indeed, it would be absurd to assert that the State could not 
 prohibit polygamy, and deny the right of marriage to 
 persons whose marriage, on account of their deficiencies, or 
 on account of their near relationship to each other, is likely 
 to be harmful to society in one or more ways, Mr. Bishop 
 says : ^ " The idea, that any government could, consistently 
 with the general well being, permit marriage to become 
 merely a thing of bargain between men and women, and not 
 regulate it by its own power, is too absurd to require refuta- 
 tion." The tendency of modern thought is to recognize no 
 limit to the power of the government to regulate marriage. 
 
 I 1 Mar. & Div., § 1 
 § 149 
 
MARRIAGE SUBJECT TO POLICE REGULATION. 527 
 
 Chief Justice Cockburn, in one case, said that the Parlia- 
 ment could deny the right of marriage altogether. It is 
 not likely that others would go so far in recognition of the 
 police power of the State, for it is generally conceded that 
 marriage is "a thing of natural right," l and cannot be 
 denied except for some good legal reason. But it does not 
 seem to be settled what are good reasons, and who shall 
 determine what they are. Mr. Bishop says: "Surely it 
 (the government), will retain the right to regulate whatever 
 pertains to marriage in its own way, and to modify the inci- 
 dents of the relation from time to time as itself pleases." * 
 And while he recognizes the natural right to marry, the only 
 benefit derived from this recognition, is to throw all pre- 
 sumption in favor of the legality of the marriage, and 
 requiring the courts to sustain the validity of a marriage, 
 ♦' unless the legal rule which is set up to prevent this con- 
 clusion is distinct and absolute, or some impediment of 
 nature intervenes." ^ Judge Cooley admits that the State's 
 control of marriage is not unlimited, but finds it difloicult to 
 determine the limitations. He says: " If the regulations 
 apply universally and impartially, a question of constitu- 
 tional law can scarcely arise upon them, for every inde- 
 pendent State must be at liberty to regulate the domestic 
 institutions of its people as shall seem most for the general 
 welfare. A regulation, however, that should apply to one 
 class exclusively, and which should not be based upon any 
 distinction between that class and others which could be 
 important to the relation, must be wholly unwarranted and 
 illegal. This principle is conceded, but it is not easy to 
 determine what regulation would come within it."* 
 
 1 1 Bishop Mar. & Div., § 13; Cooley's Principles of Const. Law, p. 
 
 228. 
 
 3 1 Bishop Mar. & Div., § 12. See, also, Pennoyer ». Neff, 95 U. S. 714. 
 
 > 1 Bishop Mar. & Div., § 13. 
 
 * Coolev's Principle of Const. Laws 228. 
 
 § 149 
 
528 EEGULATION OF RELATION OF HUSBAND AND WIFE. 
 
 § 150. Constitutional limitations upon the police con- 
 trol of marriages. — It has been often asserted and ex- 
 plained in the preceding pages that the police power can 
 only extend to the imposition of such restraints and bur- 
 dens upon natural right as are calculated to promote the 
 general welfare by preventing injury to others, individually 
 or as a community. If this be the true limitation of police 
 power generally, and the governmental regulation of mar- 
 riage be conceded to be an exercise of police power, the 
 constitutionality of a police regulation of marriage may be 
 tested by determining whether the regulation is designed 
 to, and does, prevent a threatening injury to society or to 
 others. If there is no threatening injury and, so far as 
 the judicial eye can discern, the regulation is arbitrary and 
 unnecessary, the court would pronounce against the con- 
 stitutionality of the regulation. Marriage being a natural 
 right, one is deprived of his liberty and the pursuit of hap- 
 piness if such a regulation is permitted to prevent his 
 marriage. If it is only doubtful that the marriage would 
 prove injurious to others or to society, it would, of course, 
 be proper, in conformity with a general rule of constitu- 
 tional construction, to solve the doubt in favor of the 
 validity of the regulation. But in a clear case of arbitrary 
 regulation, — i.e., where there is no threatening evil out- 
 come of the marriage which the regulation is designed to 
 prevent, it is clearly the duty of the court to declare the 
 regulating law unconstitutional. 
 
 For the purpose of testing their constitutionality, regu- 
 lations of marriage may be divided into those which are 
 designed to prevent injury to society and to third persons, 
 and those which are intended to afford protection to the 
 parties to the contract of marriage. In order that a regu- 
 lation may be constitutional, it must fall into one of these 
 
 They may also be divided into the following classes: 
 (1) Those which relate to the capacity of parties to enter 
 § 150 
 
DISTINCTION BETWEEN NATURAL AND LEQAL CAPACITY. 529 
 
 into a perfect marriage state ; (2) those which require cer- 
 tain forms of ceremony ; and (3) those which are intended 
 to provide for proper harmony and conduct of the parties 
 to each other in the marriage state, in respect to their 
 actions generally and also in respect to the control of their 
 property. The constitutionality of police regulations of 
 marriage will be discussed in this order. 
 
 § 151. Distinction between natural capacity and legal 
 capacity. — While marriage, when consummated, consti- 
 tutes a status, as a result of the execution of ^he con- 
 tract to marry, a valid contract must precede a valid 
 marriage ; and the validity of the contract of marriage is 
 <Jetermined by the same principles which govern ordinary 
 contracts. Among those elementary principles are, the 
 requirement of two persons competent to contract, the 
 agreement, and a consideration, which in the case of the 
 contract of marriage constitutes each other's promise 
 respectively. The law cannot compel an individual to marry 
 against his will, for it is not a duty to the State to marry. 
 His consent or agreement is necessary to the validity of 
 the contract. When, therefore, the consent is not present, 
 •whether it arises from mental inability to give the consent, 
 or from duress or fraud, the contract of marriage, and 
 hence the marriage itself, must be declared void. Hence 
 the marriages of the insane, except during a lucid interval, 
 or of a child of such tender age and immature mind that 
 he cannot be supposed to understand the nature of the 
 contract and therefore cannot be held to have given his 
 consent, are void or voidable, from the very nature of the 
 case. The rules of law which provide for the avoidance 
 of such marriages only lend the aid of the courts to the 
 more effective enforcement of the laws of nature, and do 
 not involve the exercise of police power, since there are no 
 restrictions imposed upon the right of marriage but those 
 
 34 § 151 
 
530 REGIILATION OF RELATION OF HUSBAND AND WIFE. 
 
 which nature herself commands. Police power is exerted 
 only when an artificial incapacity is created. 
 
 § 152. Insanity as a legal incapacity. — If the parties 
 to the contract of marriage are of sane mind when the 
 contract of marriage is made and performed, the subse- 
 quent or previous insanity does not affect the validity of the 
 marriage status. Having entered into the status through a 
 valid contract, the capacity to contract ceases to be of 
 value, since the contract is merged by its performance into 
 a status. But if the blood of either of the parties i» 
 tainted with insanity, there is imminent danger of its 
 transmission to the offspring, and through the procreation 
 of imbecile children the welfare of the State is more or 
 less threatened. It may not be the policy of the State to 
 impose restrictions upon the marriage of those who suffer 
 from mental unsoundness of a constitutional character, or 
 the danger to the State may not be sufficiently threatening ; 
 but if the proper legislative authority should determine 
 upon the establishment of such restrictions, even though 
 they amounted to absolute prohibition, there can be no 
 question as to their constitutionality. The danger to the 
 State arising from the imbecility of the offspring has 
 always been considered an all-sufficient justification of the 
 State interference and regulation of marriage. 
 
 § 153. The disability of infancy in respect to mar- 
 riage. — In the general law of contracts, all minors are 
 declared incapable of making a valid contract, and the law 
 determines the age when they attain their majority and are 
 freed from this disability. In most of the States the age 
 of twenty-one is selected for both sexes, while in some 
 of the States females become of age at eighteen. It mat- 
 ters not what may be the age determined upon, the imposi- 
 tion of the disability is an exercise of police power, and is 
 justified on the ground that on account of his immaturity the 
 § 153 
 
DISABILITY OF INFANCY IN RESPECT TO MARRIAGE. 531 
 
 minor is not on equal terms with the adult, and for his own 
 protection he is rendered unable to subject himself to possi- 
 ble extortion or imposition. If it were the policy of the law 
 to impose the same liability upon the right of marriage, the 
 further, and perhaps more important, reason may be urged 
 that persons of such youthful age are unable to provide 
 properly for the wants of a family, and as a protection to 
 the State against pauperism the youth may be prohibited 
 from marriage altogether until he arrives at the age of 
 twenty-one, and his marriage declared absolutely void. 
 But for various cogent reasons, especially the danger of 
 increasing immorality and the delicacy of the situation of 
 both parties, arising from the avoidance of the marriage 
 of persons under age, infancy is no disqualification ' to the 
 entrance into a completely valid marriage. If the minor 
 is of the requisite physical capacity, the marriage will be 
 valid, notwithstanding infancy ; while the contract to marry,, 
 like all other executory contracts, is voidable by the infant, 
 although binding upon the adult with whom he may have 
 contracted.^ But, arising out of the parental control, 
 authorized by the law, a minor may be prevented by his 
 parents from marrying, if he does not elude them. The 
 law requires the consent of the parents to the marriage 
 only as a preliminary justification of the marriage, but the 
 want of the consent does not invalidate the marriage if it 
 is actually consummated The present policy of the law is 
 opposed to such stringency, but it would be a lawful exer- 
 cise of police power to make the consent of the parents 
 necessary to the validity of the marriage. 
 
 While infancy in itself does not furnish any ground for 
 invalidating a marriage, the physical incapacity arising from 
 
 1 1 Bishop Mar. & Div., § Hi; Gavin v. Burton, 8 Ind. 69. 
 
 " 1 Bisliop Mar. & Div., § 143 ; Hunt v. Peake, 5 Cow. 475 j Williard v. 
 Stone, 17 Cow. 22; Hamilton v. Lomax, 26 Barb. 616; Cannon v. Alsbury, 
 1 A. K. Mar. 76 ; Kester v. Stark, 19 Ell. 828 ; Warwick v. Cooper, 6 Sneed, 
 659; Schouler Dom. Bel. 32. 
 
 § 153 
 
532 REGULATION OP RELATION OP HUSBAND AND WIPE. 
 
 a tender age constitutes a natural incapacity, like general 
 impotence, to perform one of the obligations of the marital 
 relation, and more or less affects the validity of the mar- 
 riage. The physical incapacity of a child renders the 
 marriage inchoate, and it is completely valid only when 
 there is cohabitation after his arrival at the age of puberty. 
 The incapacity is natural ; but in order to avoid the neces- 
 sity of an actual investigation, in each particular case, into 
 the physical capacity of the infant bride or bridegroom, 
 the law provides that males under fourteen and females 
 under twelve shall be held to be physically incapable of 
 performing the marital functions. This regulation was 
 derived from the civil Roman law, and in the warm 
 southern climate the law no doubt represented correctly 
 the physiological fact that at these ages the average child 
 attained the full powers of a man or woman. But in the 
 more northern latitudes the growth is slower, and children 
 are usually immature at these ages, and changes have con- 
 stantly been made in the law, in order that it may more 
 readily conform to the actual age of puberty. Such a 
 change has been made in North Carolina and Iowa, and 
 perhaps in other States.^ But the appointment of an age 
 when the physical capacity will be presumed, is a police 
 regulation, and is plainly justifiable on the ground that it 
 promotes the general welfare to avoid the delicate exam- 
 inations that would otherwise be necessary to establish the 
 fact of capacity, and the law cannot be called into question 
 if it should vary from the physiological facts. 
 
 The common law also provides that the marriage of per- 
 sons, either of whom is under the age of seven, is a mere 
 nullity.* Probably the prohibition rests in this case upon 
 the ground of absolute mental and physical incapacity. 
 
 In all of these cases of police regulation of marriage 
 
 » 1 Bishop Mar. & Dlv., § 142. 
 » 1 Bishop Mar. & Div., § 147. 
 
 § 153 
 
CONSANOUINITY AND AFFINITY. 533 
 
 between or by minors, the inlmaturity of mind or body 
 constitutes the justification for the interference with the 
 natural right, and therr constitutionality admits of no 
 question. 
 
 § 154. Consanguinity and affinity. — In all systems of 
 jurisprudence, beginning with the laws of Moses, marriages 
 between persons of the nearer degrees of relationship by 
 consanguinity have been prohibited ; and in some of these 
 cases, notably that of parent and child, the act of marriage 
 has been declared a crime and punishable as such. The 
 legal justification of this prohibition lies in the birth of im- 
 becile and frail offspring, which is the constant if not in- 
 variable fruit of such marriages. The injury to be avoided 
 by the prohibition consists not only of that which threatens 
 the State in the increase of pauperism through the birth of 
 persons likely to become paupers, but also the injury to 
 the offspring. One might, if allowed a certain latitude of 
 speech, be said to have a natural right to come into this 
 world with normal faculties of mind and body, and the 
 prevention of the birth of issue is justifiable when the 
 parties cannot transmit, at least to a reasonable degree, a 
 mens sana in corpore sano. It can never be questioned 
 that the marriage of very near relations has this disastrous 
 effect, although it may be a proper subject for debate at 
 what degree of relationship marriage would be safe. Still, 
 granting the danger of such marriages, the determination 
 of the degrees of relationship, within which marriage is to 
 be prohibited, must be left to the legislative discretion ; and 
 although it is strictly a judicial question whether consan- 
 guinity is likely to make a particular marriage disastrous 
 or dangerous, it must be a flagrant case of arbitrary exer- 
 cise of legislative power, in order to justify judicial inter- 
 ference. It is a general rule of constitutional construction 
 
 § 154 
 
534 REGULATION OF RELATION OF HUSBAND AND WIFE. 
 
 that all doubts as to the constitutionality of a legislative act 
 must be solved in favor of the legislature.^ 
 
 In England, the relationship by affinity, i.e.,hy marriage, 
 has been held to be a ground for prohibiting marriage with 
 the relations of the deceased wife or husband, within the 
 same degrees in which consanguinity constitutes a bar to a 
 valid marriage.^ The reason for this prohibition is set 
 forth in the leading case of Butler v. Gastrill,^ in this lan- 
 guage: " It was necessary in order to perfect the union of 
 marriage, that the husband should take the wife's relations 
 in the same degree, to be the same as his own, without dis- 
 tinction and vice versa; for if they are to be the same per- 
 son, as was intended by the law of God, they can have no 
 difference in relations, and by consequence the prohibition 
 touching affinity must be carried as far as the prohibition 
 touching consanguinity ; for what was found convenient to 
 extinguish jealousies amongst near relations, and to govern 
 families and educate children amongst people of the same 
 consanguinity, would likewise have the same operation 
 amongst those of the same affinity. And when we consider 
 who are prohibited to marry by the Levitical law, we must 
 not only consider the mere words of the law itself, but 
 what, by a just and fair interpretation, may be deduced 
 from it." If the tests, heretofore given for determining 
 the constitutionality of laws for the regulation of marriage 
 be reliable, no such reasoning as thiswould justify the pro- 
 hibition in this country. It would have to be demonstrated 
 that marriages between persons nearly related by affinity 
 produce imbecile or weak offspring, or will otherwise an- 
 tagonize the public interests, in order that their prohibition 
 may be constitutionally unobjectionable. But there will 
 be very little occasion for testing the constitutionality of 
 this law in this country. Affinity was, and probably still 
 
 1 Cooley Const. Lim. 218. 
 s 1 Bishop Mar. &Div., §§ 314, 315, 316. 
 » Glib. ch. 156, 168. 
 § 154 
 
FINANCIAL CONDITION POVERTY. 535 
 
 is, in Virginia, a ground for invalidating marriages, to the 
 same extent as consanguinity ,i but marriages with the de- 
 ceased wife's sister, as Mr, Bishop expresses it, '< in most 
 of the States, are not only not forbidden, but deemed com- 
 mendable. It would be difficult to find a person who would 
 object to such a union, or pretend that the laws permitting 
 it had wrought injury." ^ 
 
 § 155. Constitutional Diseases. — If the possibility or 
 probability of the procreation of imbecile offspring be a 
 justification of the laws which prohibit the marriage of near 
 relations and of those afflicted with constitutional insanity, 
 so likewise the danger of transmission to the offspring will 
 justify the enforcement of laws which prohibit the marriage 
 of those who are suffering from constitutional diseases, 
 which may be transmitted to the fruit of the marriage, or 
 •which so deplete the constitutions of the parents that the 
 birth of healthy, vigorous children becomes impossible. 
 Such would be leprosy, syphilis, and possibly, tuberculosis. 
 The same reasoning, which has been presented to support 
 the impediments of insanity and consanguinity, applies to 
 the proposed impediment of constitutional diseases, and a 
 repetition of it is unnecessary. This power has not been 
 exercised in this country to the writer's knowledge. 
 
 § 156. Financial condition — Poverty. — Not only isthe 
 ■welfare of society threatened by the transmission of a shat- 
 tered mental or physical constitution to the children, but 
 also by bringing them into the world, when the parents are 
 not possessed of the means sufficient to provide for them. 
 The only difficulty in the enforcement of such a law, as in 
 the cases of constitutional insanity and disease, lies in de- 
 termining in what cases the danger is threatening enough to 
 
 1 Com. V. Ferryman, 2 Leigh, 717; Hutchlns v. Com., 2 Va. Cas. 331; 
 Com. V. Leftwich, 6 Rand. 657; Kelly v. Scott, 5 Gratt. 479. 
 s 1 Bishop Mar. & Div., § 319. 
 
 § 156 
 
536 EEGULATION OF RELATION OF HUSBAND AND WIFE. 
 
 justify the interference of the law ; and in the case of pov- 
 erty, there is the further diflSculty of proving the condition 
 of pauperism, which would operate as a bar to marriage. 
 It would probably be impossible to enforce the rule against 
 any but public paupers, those who are dependent upon the 
 13uV)lic alms, and can, therefore, be easily identified. Such 
 a regulation at one time prevailed in Maine, and it was held, 
 when the constitutionality of the law was called into ques- 
 tion, that the State may by statute prohibit the marriage of 
 paupers.-' 
 
 § 157. Differences in race — Miscegenation. — When 
 the negro race in this country was for the most part held 
 in slavery, the degradation of a state of servitude operated 
 to create a most powerful prejudice against the black man, 
 although he was a free man. As an outcome of this pre- 
 judice, and a popular sense of superiority, the legislatures 
 of very many of the States of this country, particularly in 
 the South, passed laws for the prohibition of marriagea 
 between whites and blacks. These laws for the most part 
 still remain upon the statute book, notwithstanding the full 
 and complete recognition of the rights of citizenship of the 
 black man. In some of the States, marriages between the 
 Indian and white race are also prohibited. Although there 
 is occasionally an attempt made to show some physiological 
 reason for the prohibition, it cannot be denied that the 
 real cause is an uncontrollable prejudice against the black 
 man, and a desire to maintain the inequality of his present 
 social condition. Whatever other reason may be pro- 
 claimed, this is the controlling reason. If this be true, if 
 the law has no better foundation than racial prejudice, is 
 the State justified, under the general constitutional limita- 
 tions, in prohibiting the marriage of a white man and a 
 black woman, or vice versa, when the prejudice is not felt 
 
 I Brunswick v. Litchfield, 2 Me. 28. 
 § 157 
 
DIFFKEENCES IN RACE — MISCEGENATION. 537 
 
 by them? jg it not an unwarrantable act of tyranny to 
 prohibit such a marriage, simply because the community is 
 prejudiced against it? Some attempt has been made to 
 show that the mixture of blood will cause a general decay 
 of the national strength, either through enfeebled constitu- 
 tions or sterility ; but it does not appear that the truth of 
 the proposition has ever been established. At any rate, in 
 no other country, except where slavery has lately prevailed, 
 has such a law ever been enacted. Unless it can be estab- 
 lished beyond a reasonable doubt that the intermarriage of 
 white and black may be expected to produce frail and 
 sterile offspring, or threatens the general welfare in some 
 other well defined way, the duty of the courts is to pro- 
 nounce these laws unconstitutional, because they deprive 
 the parties, so disposed to marry, of their right of liberty 
 without due process of law. But the prejudice of race has 
 been too strong even in the judicial minds of the country 
 to secure for these laws a sci-jntific consideration, and hence 
 they have been repeatedly held to be constitutional.^ 
 
 1 See Bailey v. Fiske, Si Me. 77; Med way «. Natick, 7 Mass. 88; Med- 
 way B. Needham, 16 Mass. 157. In Massachusetts the statute was repealed 
 in 1843. State v. Hooper, 6 Ire. 201 ; State v. Ross, 76 N. C. 242 ; State 
 V. Kennedy, 67 N. C. 25. " It is stated as a well authenticated fact that 
 the issue of a black man and a white woman, and that of a white man 
 and black woman intermarrying, they cannot possibly have any progeny, 
 and such a fact sufficiently justifies those laws which forbid the inter- 
 marriage of blacks and whites laying out of view other sufficient grounds 
 for such enactments." State v. Jackson, 80 Mo. 175. It has been 
 held tnat the fourteenth amendment of the constitution of the United 
 States does not apply to such laws, since the prohibition is upon white 
 and black alike. State v. Hairston, 63 N. C. 451; State v. Reinhardt, 63 
 N. C. 547; State v. Kenney, 76 N. C. 261 (22 Am. Rep. 683) ; State v. Gib- 
 son, 36 Ind. 389 (10 Am. Rep. 42) ; Lonas v. State, 3 Heisk. (Tenn.) 287; 
 Ex rel. Hobbs, 1 Woods, 537 ; Green v. Sta«:e, 68 Ala. 190 (29 Am. Rep. 
 739) ; Hoover v. The State, 59 Ala. 59 ; Frasher v. State, 3 Tex. App. 263 
 (30 Am. Rep. 131); Kinney's Case, 30 Gratt. 858. Judge Cooleysays: 
 " Many States prohibit the intermarriage of white persons and negroes ; 
 and since the fourteenth amendment this regulation has been contested 
 as the offspring of race prejudice, as establishing an unreasonable dis- 
 crimination, and as depriving one class of the equal protection of the laws. 
 
 § 157 
 
538 REGULATION OF RELATION Or HUSBAND AND WIFE. 
 
 § 158. Polygamy prohibited — Marriage confined to 
 monogamy. — While voicing the universal moral sentiment 
 of a higher civilization, the laws against polygamy likewise 
 furnish to society a protection against the evils arising from 
 the degradation of its females and the procreation of more 
 children than one man is able to support. In monogamy, 
 it is often difficult for the husband and father to provide 
 the proper means of support for the offspring of his only 
 wife ; and in polygamy the difficulty would be greatly in- 
 creased if the system did not make plodding slaves of the 
 women. There can be no question that the system of polyg- 
 amy brings about a moral degradation of the women, treating 
 them as mere animals, designed simply to gratify the animal 
 passions of the man who owns them. The wife of a many- 
 wived husband cannot feel for him the noble and enno- 
 bling sentiment of love in its higher phase, for the relation 
 she bears to him is anything but ennobling. Then, again, 
 it is estimated, with a reasonable show of accuracy, that 
 the population of the world is nearly equally divided 
 between the two sexes, the adult female predominating to a 
 small extent. If polygamy were legalized, the logical con- 
 sequence would be that a proportion of men, the number 
 increasing in proportion to the average number of wives 
 to each married man, would be prevented from enter- 
 ing into the maiTiage state ; because through competition a 
 wife had become a luxury, if one could be procured at all, 
 and such men would seek the gratification of their sexual 
 
 Strictly, however, the regulation discriminates no more against one race 
 than against the other; it merely forbids marriages between the two. 
 Nor can it be said to so narrow the privilege of marriage as practically to 
 impede or prevent It. Race prejudice no doubt has had something to do 
 with establishing it, but It cannot be said to be so entirely without reason 
 in its support as to be purely arbitrary. The general current of judicial 
 decision is, that it deprives a citizen of nothing that he can claim as a 
 legal right, privilege or eiemption." Cooley Principles oi Const. Law, 
 228,229. 
 
 § 158 
 
MARUIAGE INDISSOLUBLE DIVORCE. 539 
 
 ■desires in illicit concubinage. Polyandry is and must be 
 the invariable complement of polygyny. 
 
 But, at this late day, it is not necessary to point out the 
 -evils of polygamy, for the accumulated experience of the 
 oriental world confirms the injurious character of the sys- 
 tem, which the moral consciousness of the occidental world 
 had discovered, as if by inspiration. So generally and 
 naturally is the evil character of polygamy recognized that 
 the leading American authority on the law of marriage, 
 "without any qualification or preliminary explanation, de- 
 fines marriage to be " the civil status of one man and one 
 woman united in law for life, for the discharge, to each other 
 and the community, of the duties legally incumbent on 
 Ihose whose association is founded on the distinctionof sex."^ 
 There can be no doubt as to the constitutionality of laws 
 against polygamy, under the general constitutional provis- 
 ions ; but of late the right of government to prohibit and 
 punish polygamy in cases, where its practice is commanded, 
 or at least sanctioned by one's religion, is questioned oa 
 the ground that it is a violation of religious liberty, and 
 hence contravenes the constitutional provision, relating to 
 Teligious liberty. The question has been raised under the 
 United States statutes, which relate to the practice of polyg- 
 amy among the Mormons of Utah. It has been held by 
 the Supreme Court of the United States that the constitu- 
 tional guarantee of religious liberty does not extend its 
 protection to the crimes committed under the sanction of 
 religion. * 
 
 § 159. Marriage indissoluble — Divorce. — Free from 
 legal limitations, in other words, in the absence of police 
 regulations, the status of marriage would not be of any 
 fixed or definite duration. On the contrary, its continued 
 existence would depend upon the mutual good will of the 
 
 1 1 Bishop Mar. & Piv., § 3. 
 
 s See Reynolds v. United States, 98 U. S. 146. 
 
 § 159 
 
540 EEGULATION OF EBLATION OP HUSBAND AND WIFE. 
 
 parties ; and it could be dissolved at any time that either of 
 them declines to continue the relation, or its duration could 
 be determined by the agreement of the parties : it would 
 require no great degree of imagination, under such a state 
 of affairs, to classify marriages, in reference to their dura- 
 tion, into those for life, for an uncertain period which may 
 last during life, for years, from year to year, or at will. 
 And this was practically the condition of the law of mar- 
 riage at one time in the Roman empire.^ 
 
 But the best interests of society, as well as those of the off- 
 spring, require that the relation should be permanent ; and 
 the teachings of morality and religion made this economic 
 necessity a divine command and procured legislative inter- 
 ference, sweeping away all doubts as to the right of the 
 State to interfere. Indeed, morals, religion, political 
 economy and law were so intimately blended together at 
 the time when marriages were first regulated by the State 
 ( the beginning antedates the historic age), that probably 
 the reader of the present volume will be astonished to find 
 reasons presented and urged as a justification of this State 
 interference. But it is clear that but for the evil to society or 
 to the offspring, society could not exact of a married couple 
 the duty to maintain the relation any longer than they chose 
 to do so. The moral or religious element cannot in itself 
 furnish a foundation for legislation, although I am sure that 
 the religious teachings on the subject were themselves 
 prompted by a consideration of the evils flowing from mar- 
 riages loosely contracted and easily dissolved. So many, 
 and such great evils were supposed to flow from them, that 
 in past time we find churchmen, moralists, and jurists, alike 
 demanding that marriages be declared absolutely indissolu- 
 ble, except for causes arising before marriage, which invali- 
 dated the marriage itself. But since it was not in the power 
 
 ' See Sandar's Justinian, p. 102, to the efCect that marriage under 
 Boman law was dissoluble by mutual consent, otherwise at the instance 
 of one party only for certain violations of the marriage vow. 
 § 159 
 
MARRIAGE INDISSOLUBLE — DIVORCE. 541 
 
 of the State to compel ill-suited couples to live in harmony, 
 or bring them together, if they had separated, they sanc- 
 tioned the separation and legalized it ; while the bond of 
 marriage still held them together, and prevented their re- 
 marriage to others. Such was the English and American 
 common law. The State of South Carolina makes it a sub- 
 ject of loud boasts that she clings to these views of social 
 and moral necessity, even in these degenerate days of easy 
 divorces. '< The policy of this State has ever been against 
 divorces. It is one of her boasts that no divorce has ever 
 been granted in South Carolina." ^ But this State stands 
 alone in its adherence to the old law of divorces, while all 
 of her sister States permit divorces for one or more causes, 
 arising subsequent to the marriage, which, under the com- 
 mon law, justified only a divorced mensaet thoro; a separa- 
 tion which deprived the parties of all their marital rights, 
 but kept them bound together, unable to contract a new 
 marriage. The weakness of human nature being consid- 
 ered, but one moral result might be expected from a denial 
 of the right of divorce, in cases where the parties are unable 
 to live together in peace, viz. : illicit connections increase in 
 number to an alarming extent. In speaking of the position 
 taken by South Carolina, Mr. Bishop says:'' "So it has 
 become necessary to regulate, by statute, how large a pro- 
 portion a married man may give of his property to his con- 
 cubine,' — superfluous legislation, which would never have 
 been thought of, had not concubinage been common. Stat- 
 utes like this are unknown, because not required in States 
 where divorces are freely granted."* On the other hand, 
 
 1 Ch. Dargan in Hair v. Hair, 10 Rich. Eq. 163, 174. 
 
 » 1 Bishop Mar. & Div., § 38. 
 
 s See Denton v. English, 3 Brev. 147; Canady v. George, 6 Rich. Bq. 
 103; Cusack v. White, 2 Mill, 279. 
 
 * " In this county," says Judge Nott, " where divorces are not allowed 
 for any cause whatever, we sometimes see men of excellent characters un- 
 fortunate in their marriages, and virtuous women abandoned or driven 
 away houseless by their husbands, who would be doomed to celibacy and 
 
 159 
 
542 REGULATION OF EELATION OF HUSBAND AND WIFE. 
 
 it might well be said that the facility with which divorcer 
 can be obtained is calculated to make the parties more un- 
 easy under the friction that is present in di ff erent quanti- 
 ties in almost all marriages, and less disposed to sacrifice 
 self-will on the altar of their common good ; while the re- 
 marriage of divorced parents to others must certainly have 
 a demoralizing influence over the offspring. It has also 
 been asserted that loose divorce laws tend to diminish the 
 growth of population by making it more difficult to provide 
 for the rearing of the children of the divorced and re- 
 married parents. Perhaps laws which grant divorces to a 
 limited extent, for breaches of the marital duties, and yet 
 keep distinctly in view the stability of the marital relation, 
 are best calculated to avoid both the Scylla and Charibdis of 
 this vexed and much discussed problem of society. " It is 
 the policy of the law, and necessary to the purity and use- 
 fulness of the institution of marriage, that those who enter 
 into it should regard it as a relation permanent as their own 
 lives ; its duration not depending upon the whim or caprice 
 of either, and only t6 be dissolved when the improper con- 
 duct of one of the parties (the other discharging the duties 
 with fidelity as far as practicable under the circumstances)- 
 shall render the connection wholly intolerable, or inconsist- 
 ent with the happiness or safety of the other." ^ Whatever 
 view may be entertained as to the wisdom of denying or 
 granting divorces, and there are all shades of opinion on 
 this subject, the right of the State to regulate the matter 
 has never been seriously questioned. Whether divorces 
 shall be granted or not, is a matter that addresses itself to 
 the discretion of the legislature. 
 
 solitude If they did not form connections which the law does not allow^ 
 and who make excellent husbands and virtuous wives still. Yet they are 
 considered as living in adultery, because a rigorous and unyielding law,, 
 from motives of policy alone, has ordained it so." Cusack v. White, 2 
 Mill, 279, 292. 
 
 1 Simpson, J., in Griffln v. Griffin, 8 B. Mon. 120. 
 
 § 159 
 
REGULATION OF THE MAERIAGE CEREMONY, 543 
 
 § 160. Regulation of the marriage ceremony. — It re- 
 quires no painstaking elucidation of the grounds upon which 
 to justify State regulation of the ceremony, by which is 
 established an institution, in which the welfare of the State 
 is so vitally concerned, as marriage. It is certainly not un- 
 reasonable for the State to provide a fixed, certain mode of 
 entering into marriage, provided the ceremony, thus se- 
 lected, is of such a character, that no one would be pre- 
 vented from entering into the status, on account of religious 
 scruples, or an inability to comply, which did not arise 
 from his legal incapacity for marriage. According to the 
 old English law, the marriage was held to be invalid, unless 
 the ceremony was performed by a clergyman of the Church 
 of England.^ So, also, in the Papal States, before their 
 annexation to the kingdom of Italy in 1870, no mar- 
 riage was valid unless it was solemnized by one in holy 
 orders in the Catholic Church. A religious ceremony has 
 been required in other countries. It is manifest that, while 
 the State may prescribe that a religious ceremony, possess- 
 ing certain features, shall constitute a valid solemnization 
 of the marriage, it would be a violation of the religious lib- 
 erty, guaranteed to all by the American constitutions, if the 
 State compelled one, against his will, to submit to a religious 
 ceremony of marriage, or else be denied the privilege of en- 
 tering into the marriage state. The ceremony prescribed 
 by the State, and made obligatory upon all, must be of such 
 a character that all can conscientiously comply. A regula- 
 tion, like the German law of marriage, which makes a cere- 
 mony before a civil magistrate necessary to the validity of 
 a marriage, would not violate any constitutional right, not 
 even of those who view marriage in the light of a religious 
 sacrament, for the religious ceremony is not forbidden. 
 The policy of our country, in the main, has been to leave 
 
 1 See Reg. v. MlUis, 10 CI. & F. 534. The decision in this case was by a 
 divided court, and the conclusion has been warmly opposed, although: 
 acquiesced in, in England. See 1 Bishop Mar. & Div., §§ 270-282. 
 
 § 160 
 
544 REGULATION OF EELATION OF HnSBAND AND WIFE. 
 
 the law of marriage, in respect to the formality of its sol- 
 emnization, as it was in all Christendom before the Council 
 of Trent, which declared it to be a sacrament and enjoined 
 a religious ceremony, viz. : that no particular ceremony is 
 required, simply a valid contract in verba de prcesenti, by 
 which the parties assume to each other the relation and 
 duties of husband and wife. And where statutes provide 
 for the issue of a marriage license, they do not make the 
 license necessary to the validity of the marriage, the only 
 effect of the statute being that the minister or magistrate 
 who performs the ceremony is subject to a fine, if he offici- 
 ates in a case in which no license has been granted.^ But 
 the present state of the law furnishes no argument against 
 the constitutionality of a statute which required some 
 formal ceremony, subject to the exceptions and limitations 
 already mentioned. 
 
 §161. Wife In legal subjection to the husband — Its 
 justification. — As a matter of abstract or natural justice, 
 the husband and wife must stand on a plane of equality ; 
 neither has the right of control, and both can claim the en- 
 joyment of the same general rights. There are many con- 
 scientious people who think differently ; but apart from the 
 influence or teachings of the Bible on this subject, with 
 every such person the thought is but the resultant of his 
 desires and prejudices. Considering the married couple in 
 a state of isolation, eliminating every influence they may 
 exert upon other individuals, their offspring for example, 
 or upon the general welfare of the State, the conclusion is 
 irresistible, that any subjection by law of the wife to the 
 commands of the husband would be a deprivation of the 
 wife's liberty without due process of law, and, therefore, 
 
 I See State v. Madden, 81 Mo. 421, in which the constitutionality of a 
 law was contested and sustained, which made it a misdemeanor for any 
 one to solemnize a marriage where the parties have not preyiously ob- 
 tained a license . 
 § 161 
 
WIFE IN LEGAL SUBJECTION TO THE HUSBAND. 545 
 
 TToid under our constitutional limitations. And such would 
 likewise be the conclusion, considering the couple in their 
 relation to society and to their offspring, if the ideal mar- 
 riage became the rule, and absolute harmony and compati- 
 bility of temper prevailed in every household. This is, 
 however, at least for the present, an unattainable ideal. 
 There are many individual couples, who have attained this 
 ideal of the domestic relation, where each is "solicitous of 
 the rights of the other," and where " committing a tres- 
 pass " is "the thing feared, and not being trespassed 
 against," and self-sacrifice, not encroachment, the ruling 
 principle.^ With such couples there is no subjection of 
 the wife to her husband, and there is never any inequality 
 of position, where the true, genuine sentiment of love 
 inspires every act ; for the subjection of one to the 
 other is incompatible with the reign of love. But this 
 is not always the case. Indeed, such a relation between 
 husband and wife constitutes the exception, rather than 
 the rule. In the words of Herbert Spencer,'-' " to the 
 same extent that the triumph of might over right is seen in 
 -a nation's political institutions, it is seen in its domestic 
 ones. Despotism in the State is necessarily associated with 
 despotism in the family." The remnant of the savage 
 within us still nurses the desire to rule, and the instinct of 
 selfishness, when unchastened by the principles of altruism, 
 is displayed in the dealings of husband with wife, as of man 
 with man. Might is right, between whatever parties the 
 <luestion may arise. Left, therefore, in a state of nature, 
 it will be a rare exception that the parties to a marriage will 
 sustain an equality of rights ; as a general rule, one of them 
 will be the ruler while the other will be the subject, some- 
 times submissive, but usually more or less rebellious. In 
 most cases, in which this state of affairs exists at all, the 
 
 1 Spencer's Social Statics, p. 188. 
 « Social Statics, p. 179. 
 
 36 § 161 
 
546 EEGOLATION OP RELATION OF HUSBAND AND WIFE. 
 
 contention and discord continue during life, unless before 
 death a beneficent divorce law enables the parties to take 
 leave of each other and go their way alone. Discord in th& 
 family destroys all the benefits that might be expected ta 
 accrue to the community, even if it does not amount to a 
 positive breach of the peace. It demoralizes the offsprings 
 as well as the parties themselves ; and if by a regulation of 
 their conduct towards each other the State could secure a 
 reasonable degree of harmony, the result would justify the 
 interference as tending to promote the general welfare. 
 How shall this intercourse be regulated? Shall the State 
 require the maintenance of substantial equality betweea 
 two people whom nature has endowed unequally, both men- 
 tally and physically? I do not mean in this connection to 
 assert and defend the position, often taken, that women are 
 essentially and radically inferior to men. I merely desire 
 to make the statement, that as a general proposition the 
 man rules, it may be by greater intellectual strength, or it 
 may be by brute force, probably in most cases by the latter. 
 It sometimes happens, but it is the exception, that the 
 woman is the strongest, and she then rules, whatever the 
 law might have to say upon the subject. The maintenance 
 of a fictitious equality, one that is not the legitimate pro- 
 duct of the social forces, by the mandate of the law, even 
 if that were possible, and it is not, would not tend to 
 increase harmony in the domestic relations. Left to 
 themselves the stronger will rule, and the stronger will 
 rule notwithstanding the law proclaims an equality. 
 Harmony can only be approximated by legalizing the rule 
 of the stronger, at the same time placing around it such 
 safeguards as will secure for the weaker protection against 
 the tyranny and cruelty of the stronger. The wife is not 
 subjected by the law to the control of the husband, because 
 the husband has a right to rule, but because he is generally 
 the stronger, and will huve the mastery even though the 
 law might give the control to the weaker. If women were 
 § 161 
 
husband's control of wife's peopeety. 547 
 
 usually the stronger sex, the husbands would be in subjec- 
 tion to them, as they are now, when the husband finds 
 more than his match in his wife. In the management of 
 the things and interests which they hold in common, the 
 husband rules by nature as by law. 
 
 Legalizing his natural control, the ancient law in many 
 countries held him responsible to others for all the acts of 
 trespass which the wife may commit. Even to this day, 
 in most of the States, a husband is responsible to third per- 
 sons for all wrongs against them committed by his wife ; 
 while he is to a certain extent responsible to the State for 
 all the crimes committed by his wife in his presence. 
 Whichever of these facts, the husband's control or his re- 
 sponsibility for his wife's acts, be considered the primal 
 fact, the other must be the legitimate and necessary conse- 
 quence. In proportion that his power of control is dimin- 
 ished, must his responsibility for her acts be lessened, until 
 the happy era is reached, when there will be neither con- 
 trol nor responsibility. But what degree of control and 
 responsibility is to be permitted is left to the legislative 
 discretion. 
 
 § 162. Husband's control of wife's property. — Start- 
 inw out with the proposition, that in the eye of the law 
 husband and wife are looked upon as one person, a duality 
 of which the husband is the head and legal representative, 
 the legal personality being merged in that of her husband, 
 the necessary logical consequence is that he acquires, either- 
 absolutely or during coverture, all the rights of property 
 which she possessed, for rights can only be predicated of a 
 legal personality. For this reason, therefore, in the days 
 when the study of law was an exercise in the rigid rules of 
 logic, instead of an earnest effort to discover the means by 
 which substantial justice may be meted out, the wife's prop- 
 erty passed upon marriage, with herself, under the control of 
 the husband. There were other reasons, which might have 
 
 § 162 
 
548 EEGOLATION OF RELATION OF HUSBAND AND WIFE. 
 
 appeared important in the primeval days of tne common law, 
 and justified in the minds of the framers of the law this legal 
 absorption by the husband of the wife's property, as well as 
 herself. Under the early law as now, the husband was 
 obliged to support the wife, and it was thought but fair that 
 he should have the management and control of all the property 
 that she might have, in consideration of this obligation to sup- 
 port. But probably the best reason for tnis rule may be 
 found in the fact, that when the feudal system prevailed, 
 there wereno obligations of citizenship, except such as arose 
 out of the relation of lord and vassal in respect to the land 
 which the latter may hold under the lord, and for which the 
 vassal had to reader services of various kinds, usually of 
 such a nature that only a man could perform them.^ When, 
 therefore, lands were acquired by a woman, by descent or 
 otherwise, who subsequently married, her husband had to 
 perform the services due to the lord, and it was but just 
 that he should have the credit of it. The same reasons did 
 not apply to personal property, but in this rude age 
 personal property was inconsiderable ; and consisted chiefly 
 of such that a married couple would use in common, house- 
 hold goods and domestic animals, which after a long use in 
 common with like property of the husband, would well nigh 
 pass beyond the possibility of identification, and because of 
 this difficulty the law gave to the legal representative of 
 the duality all such property that was not capable of easy 
 identification as constituting part of the wife's parapherna- 
 lia. These reasons are not presented as the justification of 
 such a law at the present day. So grossly unjust has it been 
 felt to be for years and centuries, that with the aid of 
 equity's corrective influence over the common law, whereby 
 the hard logic of the common law may be respected and 
 yet substantial justice be within the reach of all, it has been 
 
 1 See Tiedeman on Real Property § 20; 1 Washb. on Real Prop. 46, cit- 
 ing 3 Guizot Nat. Hist. Civ. 108. 
 
 « 162 
 
LEGAL DISABILITIES OF MARRIED WOMEN. 549 
 
 possible for any one about to convey property, whether 
 real or personal, to a woman, or for the young woman her- 
 self, before marriage, to so settle her property, that it shall 
 remain her separate property, free from the control of her 
 husband, notwithstanding the rules of the common law. 
 And it is probably on account of the means furnished by 
 equity jurisprudence of escape from the hardships of the 
 common law in this respect, that the statutory changes, 
 now so common, were not made ages ago. Indeed, it is the 
 firm conviction of many jurists that statutes, which give to 
 married women the same absolute and exclusive control 
 over their property, which they had when single, do not 
 confer upon woman an unmixed good. For while she is 
 thus given the unlimited power of control over her prop- 
 erty, she may ruin herself financially by giving heed.to the 
 persuasions of her husband, against which she cannot 
 usually hold out, more readily than she could when, under 
 the rules of equity, her separate property is settled upon 
 her, with limitations upon her power of control, imposed 
 for her own protection. But there can be no doubt that 
 the common law in respect to the property rights of mar- 
 ried women, in the present age, cannot be justified by any 
 rule or reason known to constitutional law, however just it 
 may have been under the feudal system. But it is to be 
 supposed that, in consequence of the proverbial conserva- 
 tism of the law, and the remarkable longevity of common- 
 law principles, the wrong can only be remedied by statutory 
 changes.^ 
 
 § 163. liegal disabilities of married women. — It is also 
 a consequence of the legal theory, that the personality of 
 the wife is lost in that of the husband, that married women 
 
 1 •' Marriage is not simply a contract; but a public institution, not re- 
 served by any constitutional provision from legislative control ; and all 
 Tights in property, growing out of the marital relation, are alike subject 
 to regulation by the legislative power." Noel «. Ewing, 9 Ind 37. 
 
 § 163 
 
550 REGULATION OP RELATION OP HUSBAND AND WIFE. 
 
 are placed under various legal disabilities, the most impor- 
 tant of which is that they cannot make a valid contract. If 
 they could not hold property in their individual capacity, it 
 would hardly be consistent to give them the power to 
 make contracts in their own names. As agents of their 
 husbands they could make any contracts that came within 
 the scope of their expressed or implied authority, but they 
 were not allowed to make contracts, the performance of 
 which they could not guarantee, since their property was 
 not subject to their control. When equity provided a way, 
 in which a married woman could hold separate property, 
 she was permitted in equity to make contracts in respect to 
 such property, and the creditors could enforce such claims 
 against the separate estate by instituting the proper action 
 in a court of equity. This was but just, for the disability 
 to contract was but a consequence of the common-law rule, 
 which gave to the husband the complete control of her 
 property. When, therefore, by statutory changes, her prop- 
 erty rights are secured to the married woman, free from 
 the control of her husband, there can be no reason or jus- 
 tice in retaining the common-law disability to make a con- 
 tract, except as a protection to herself against the evil 
 designs of her husband. It is no doubt permissible for the 
 law to provide this protection by making void all her con- 
 tracts and gifts of property to her husband, but the disabil- 
 ity must be kept within these limits, in order to be 
 consonant with common justice. 
 § 136 
 
CHAPTER Xin. 
 
 POLICE EEGULATION OF THE RELATION OF PARENT AND 
 CHILD, AND OF GUARDIAN AND WARD. 
 
 Section 165. Original character of tlie relation of parent and child— Its 
 political aspect. 
 
 166. No limitation to State interference. 
 166a. People v. Turner. 
 
 167. Compulsory education. 
 
 168. Parents' duty of maintenance. 
 
 169. Child's duty to support indigent parents. 
 
 170. Relation of guardian and ward altogether subject to State 
 
 regulation. 
 
 171. Testamentary guardians. 
 
 § 165. Original character of the relation of parent and 
 ■child — Its political aspect. — The early history of all the 
 Aryan races, from whom the modern European races have 
 sprung, reveals the family, with the husband and father as 
 autocrat, as the primal social and political organization, 
 upon which subsequently the broader organizations of tribe 
 and nation were established. The tribe was a union of fami- 
 lies, of Gentes, and the nation a union of tribes. But the 
 family organization remained intact, and the tribal govern- 
 ment was represented by the father or head of the family. 
 The other members of the family did not have a voice in the 
 administration of the tribal affairs, nor did the government 
 of the tribe have any control of the concerns of the family. 
 The father and head of the family ruled its members without 
 constraint, could command the services of the child, make a 
 valid sale of the adult children as well as the minor, and punish 
 them for offenses, inflicting any penalty which his wisdom 
 or caprice may suggest, even to the taking of life. Nor did 
 this police control extend only to the offenses committed 
 against the members of the same family. The members of 
 
 (551) § 165 
 
552 EB&ULATION OF RELATION OP PAKENT AND CHILD, ETC. 
 
 one family bore no legal relation to those of another, except 
 the two heads. If the member of one family was guilty of 
 a trespass upon the rights of a member of another family, 
 the head of the latter family demanded redress from the 
 head of the former, and he would inflict the proper punish- 
 ment upon his offending kinsman, or else prepare to bear 
 the responsibility of the act in an appeal to the tribal 
 authorities. 
 
 It is not necessary to enter into the details of the family 
 relation, in its political character. It is sufficient for the 
 present purposes to say that it is in the political character 
 of the family as an institution of government, that the father 
 is given this absolute control over the children and others 
 forming the family of which he is the head and ruler. It is 
 not in his natural capacity of a sire that the justification of 
 this control is to be found. When, therefore, the family 
 ceases to be a subdivision of the body politic, and becomes a 
 domestic relation instead of a political institution, we expect 
 to find, and we do find as a fact, that this absolute control 
 of the children is taken away. The children, like the 
 father, become members of the body politic, and acquire 
 political and civil rights, independently of the father. Then 
 this supreme control is transferred to the State, the father 
 retaining only such power of control over his children dur- 
 ing minority, as the promptings of nature and a due consid- 
 eration of the welfare of the child would suggest. By the 
 abolition of the family relation as a political institution, the 
 child, whatever may be his age, acquires the same claim to 
 liberty of action as the adult, viz. : the right to the largest 
 liberty that is consistent with the enjoyment of a like lib- 
 erty on the part of others ; and he is only subject to restraint, 
 so far as such restraint is necessary for the promotion of the 
 general welfare or beneficial as a means of protection to 
 himself. The parent has no natural vested right to the con- 
 trol of his child. Except in the day when the family was a 
 political institution of which the fallier was the king or 
 § 165 
 
ORIGINAL RELATION OF PARENT AND CHILD, ETC. 553 
 
 ruler, his power over the child during minority is in the 
 nature of a trust, reposed in him by the State (or it may, 
 historically, be more correct to say, which the State 
 resei-ved to the father, when the political character of the 
 family was abolished), which may be extended or con- 
 tracted, according as the public welfare may require. To 
 recognize in the father any absolute right to the control of 
 his child, would be to deny that " all men are born free and 
 equal." For if the child is subject to the commands of the 
 father, as a matter of abstract right, there can be no limita- 
 tion upon the parental control, except what may be necessary 
 to promote the general welfare, for the prevention of cruelty 
 to the children, and for the protection of the rights of mem- 
 bers of other families ; the political powers of the father of 
 the patriarchal age could not be taken away from him and 
 vested in some other State organization. The father has 
 as much a right to control the actions of his child when he 
 is over twenty-one years of age as when he is below that 
 age. Liberty, therefore, as we understand it, was not 
 created for him ; the heads of families alone are freemen. 
 But it is said that men are free to do as they please, when 
 they become of age. By what authority are they denied 
 their full liberty until they reach the age of twenty- one? 
 Is a youth of twenty, by nature, less free than the youth of 
 twenty-one ? Is it because the father has a natural right to 
 control the actions, and command the obedience, of the 
 youth of twenty, and had not the same power of control 
 over the youth of twenty-one ? We have seen that in his 
 political character the father exercised the same absolute 
 control over the members of his family, whatever may be 
 the age of the child or other member of the family. With 
 the abolition of the family, as a political institution, the 
 parental control was limited to the period of minority of the 
 child, and the adult was free to do as he pleased, being only 
 amenable to the State or society for infractions of its laws. 
 If all men are born free and equal, are entitled to the 
 
 § 11^5 
 
554 EKGULATION OF GELATION OF PARENT AND CHILD, ETC. 
 
 equal protection of the law, they can claim the enjoyment 
 of equal liberty, whether they be children or parents, in- 
 fants or adults, under or over twenty-one years of age. It 
 is only, therefore, as a police regulation, that the subjection 
 of minor children to the control of parents may be justified 
 under constitutional limitations. The authority to control 
 the child is not the natural right of the parents ; it emanates 
 from the State, and is an exercise of police power. 
 
 § 16f>. No limitation to State interference. — If it be 
 
 true that the control of children, by whomsoever the con- 
 trol is exerted, is an exercise of police power, and can be 
 justified only as such, on constitutional principles, then the 
 parental control is a privilege or duty, and not a natural 
 right ; and this view meets with a tacit acquiescence, as long 
 as the limitations upon the parental control are confined to 
 the ordinary ones, with which long usage has made us 
 familiar. Thus we readily acknowledge the right of the 
 State to punish the parent for inflicting cruel and excessive 
 punishment ; and in a clear case of cruel treatment, we would 
 not be shocked if the authorities were to take the child 
 away from the parent. But we are startled if the rule is 
 carried to its extreme limit in laying down the proposition, 
 that, being a privilege, the State may take away the parental 
 control altogether, and assume the care and education 
 of the child, whenever in the judgment of the legislature 
 such action may be necessary for the public good, or the - 
 welfare of the child. And such has been, with few excep- 
 tions, the opinion of the courts of this country. Thus, at 
 common law, and everywhere in America, in the absence of 
 statutory regulation to the contrary, the father has the 
 absolute control of his minor children, to the exclusion of 
 a similar right in the mother. Is this discrimination against 
 the mother in recognition of the father's natural right to the 
 custody of the child? If this were true, the legislature of 
 New Jersey exceeded its powers when it provided by stat- 
 § 166 
 
NO LIMITATION TO STATE INTERFERENCE. 555 
 
 ute that the mother, in cases of separation, shall have the 
 <justody of children of tender age. But the Supreme Court 
 of that State held that the act was constitutional. In ren- 
 dering the decision the court said : — 
 
 " The argument (that the act is unconstitutional) pro- 
 ceeds upon, the assumption that the parent has the same 
 right of property in the child that he has in his horse, or 
 that the master has in his slave, and that the transfer of the 
 custody of the child from the father to the mother is an in- 
 vasion of the father's right of property. The father has 
 no such right. He has no property whatever in his 
 children. The law imposes upon him, for the good of 
 society and for the welfare of the child, certain specified 
 duties. By the laws of nature and of society he owes the 
 child protection, maintenance, and education. In return 
 for the discharge of those duties, and to aid in their per- 
 formance, the law confers on the father a qualified right to 
 the services of the child. But of what value, as a matter of 
 property, are the services of a child under seven years of 
 age? But whatever may be their value, the domestic rela- 
 tions and the relative rights of parent and child are all under 
 the control and regulation of municipal laws. They may 
 and must declare how far the rights and control of the 
 parent shall extend over the child, how they shall be exer- 
 cised, and where they shall terminate. They have deter- 
 mined at what age the right of the parent to the services of 
 the child shall cease and what shall be an emancipation 
 from his control." ^ 
 
 It has also been held that Congress has power to enlist 
 minors in the navy or army, without the consent, and 
 against the wishes of the parents.' 
 
 In New York, also, it has been held that the commission- 
 ers of public charity have the power, under the statutes of 
 
 * Bennett v. Bennett, 13 N. J. Bq. 114. 
 
 ' See United States v. Bainbridge, 1 Mason, 71. 
 
 § 166 
 
656 EEGULATION OP RELATION OF PARENT AND CHILD, ETC. 
 
 that State, to bind out to apprenticeship a child left to their 
 care by the father, without providing the means of support^ 
 against the father's will or without his consent.^ 
 
 § 166a. People v. Turner. — But in a late decision of 
 the Supreme Court of Illinois the natural right of the parent 
 to the custody of his minor child has been recognized and' 
 affirmed, and an act of the legislature declared unconstitu- 
 tional, which empowered certain officers to commit to the' 
 reformatory school all minors under a certain age, when he 
 is found to be without the proper parental care.' The Court, 
 say: 
 
 " The contingencies enumerated, upon the happening of 
 either of which the power may be exercised, are vagrancy,, 
 destitution of proper parental care, mendicancy, ignorance,, 
 idleness, or vice. Upon proof of any one the child is de- 
 prived of home, and parents, and friends, and confined for 
 more than half of an ordinary life. It is claimed that the 
 law is administered for the moral welfare and intellectual 
 improvement of the minor, and the good of society. From 
 the record before us we know nothing of the management. 
 We are only informed that a father desires the custody of 
 his child, and that he is restrained of his liberty. There- 
 fore we can only look at the language of the law and the 
 power granted. 
 
 " What is proper parental care? The best and kindest 
 parents would differ in the attempt to solve this question. 
 No two scarcely agree; and when we consider the watchful 
 supervision which is so unremitting over the domestic 
 affairs of others, the conclusion is forced upon us that there 
 is not a child in the land who could not be proved, by two 
 or more witnesses, to be in this sad condition. Ignorance, 
 idleness, vice, are relative terms. Ignorance is always pre- 
 
 ' People V. Welsenbach, 60 N. Y. 385. 
 
 2 People D. Turner, 55 111. 280 (8 Am. Sep. 645): 
 
 § 166a 
 
PEOPLE V. TURNER. 557 
 
 ferable to error, but at most is only venial. It may be 
 .general, or it may be limited. Though it is sometimes said 
 that 'idleness is the parent of vice,' yet the former may 
 exist without the latter. It is strictly an abstinence from 
 labor or employment. If the child performs all its duties 
 to parents and to society, the State has no right to compel 
 it to labor. Vice is a very comprehensive term. Acts, 
 wholly innocent in the estimation of many good men would, 
 -according to the code of ethics of others, show fearful de- 
 pravity. What is the standard to be ? What extent of en- 
 lightenment, what amount of industry, what degree of 
 virtue, will save from th^ thi-eatened imprisonment? In 
 our solicitude to form youth for the duties of civil life, we 
 should not forget the rights, which inhere both in parents 
 and children. The principle of the absorption of the child 
 in, and its complete subjection to the despotism of, the 
 State is wholly inadmissible in the modern civilized world." 
 " The parent has the right to the care, custody and 
 assistance of his child. The duty to maintain and protect 
 it is a principle of natural law. He may even justify an 
 assault and battery in the defense Of his children, and up- 
 hold them in their lawsuits. Thus the law recognizes the 
 power of parental duty, strongly inculcated by writers on 
 natural law, in the education of children. To aid in the 
 performance of these duties and enforce obedience parents 
 have authority over them. The municipal law should not 
 disturb this relation except for the strongest reasons. The 
 ease with which it may be disrupted under the laws in ques- 
 tion; the slight evidence required, and the informal mode 
 of procedure, make them conflict with the natural right of 
 the parent. Before any abridgement of the right, gross 
 misconduct, or almost total unfitness on the part of the 
 parent should be clearly proved. This power is an emana- 
 tion from God, and every attempt to infringe upon it, ex- 
 cept from dire necessity, should be resisted in all well 
 governed States. In this country the hope of the child in 
 
 § 166a 
 
558 REGULATION OF RELATION OF PARENT AND CHILD, ETC. 
 
 respect to its education and future advancement is mainly 
 dependent upon tlie father ; for this he struggles and toils 
 through life ; the desire of its accomplishment operating as 
 one of the most powerful incentives to industry and thrift. 
 The violent absorption of this relation would not only tend 
 to wither these motives to action, but necessarily in time 
 alienate the father's natural affections. 
 
 " But even the power of the parent must be exercised 
 with moderation. He may use correction and restraint, 
 but in a reasonable manner. He has the right to enforce 
 only such discipline as may be necessary to the discharge 
 of his sacred trust ; only moderate correction and temporary 
 confinement. We are not governed by the twelve tables, 
 which formed the Eoman law. The fourth table gave 
 fathers the power of life and death and of sale over their 
 children. In this age and country such provisions would 
 be atrocious. If a father confined or imprisoned his child 
 for one year, the majesty of the law would frown upon the 
 unnatural act, and every tender mother and kind father 
 would rise up in arms against such monstrous inhumanity. 
 Can the State, as parens patriae, exceed the power of the 
 natural parent, except in punishing crime ? 
 
 " These laws provide for the ' safe keeping,' of the child, 
 they direct his ' commitment ' and only a ' ticket of leave,' 
 or the uncontrolled discretion of aboard of guardians, will 
 permit the imprisoned boy to breathe the pure air of heaven 
 outside his prison walls, and to feel the instincts of man- 
 hood by contact with the busy world. The mittimus terms 
 him ' a proper subject for commitment ; ' directs the super- 
 intendent to • take his body ' and the sheriff indorses upon 
 it, ' executed by delivering the body of the within named 
 prisoner.' The confinement may be from one to fifteen years, 
 according to the age of the child. Executive clemency can- 
 not open the prison doors, for no offense has been com- 
 mitted. The writ habeas corpus, the writ for the security 
 of liberty, can afford no relief, for the sovereign power of 
 § 166a 
 
PEOPLE V. TUENER. 559 
 
 the State, as parens palricB, has determined the imprison- 
 ment beyond recall. Such a restraint upon natural liberty 
 is tyranny and oppression. If, without crime, without the 
 conviction of any oflPense, the children of the State are to 
 thus confined for the ' good of society,' then society had 
 better be reduced to its original elements, and free govern- 
 ment acknowledged a failure." ^ 
 
 In a later case, arising under a subsequent statute, act of 
 May 29, 1879, which provides for the committal to the in- 
 dustrial school of dependent infant girls, who are beggars, 
 wanderers, homeless or without proper parental care, it was 
 held that the act was constitutional, and was distinguished 
 from the act under consideration in People v. Turner ; by 
 better provisions for a judicial hearing before commitment 
 under the act.^ Laws committing homeless children to in- 
 dustrial schools have in other States been generally main- 
 tained.* 
 
 The opposite views of this most interesting phase of police 
 
 * This case was also published in the American Law Begister, vol. 10 
 (n. s.) , p. 372, with an able annotation by Judge Redfleld. The follow- 
 ing is a quotation from the annotation : — 
 
 " We have read this decision with great admiration. There can be no 
 question, it is a very creditable advance in favor of liberty among the 
 children of white parents, as well as those of more sombre hue. All 
 classes of men, and women too, under this decision, may keep their own 
 children at home and educate them in their own way. This is a very 
 wonderful advance in the way of liberty. It must certainly be a great 
 comfort to a devout Eoman Catholic, father or mother, to reflect that now 
 his child cannot be driven into a Protestant school and made to read the 
 Protestant version of the Holy Scriptures. And what is more, his or 
 her child cannot be torn from home and immured in a Protestant 
 prison, for ten or more years, and trained in what he regards a heretical 
 and deadly faith, to the destruction of his own soul. This is right 
 and we hope the court will be able to maintain this noble stand upon first 
 principles." 
 
 > Ex parte Ferrier, 103 ni. 367 (42 Am. Rep. 10). 
 
 3 Prescott «. State, 19 Ohio St. 184 (2 Am. Eep. 388) ; Roth v. House 
 of Refuge, 31 Md. 329; Milwaukee Industrial School c. Supervisors of 
 Milwaukee Co., 40 Wis. 328 (22 Am. Eep. 702) ; House of Refuge o. Ryan, 
 37 Ohio St. 197. 
 
 § 166a 
 
560 EEGULATION OF RELATION OF PARENT AND CHILD, ETC. 
 
 power are thus presented to the reader with great particu- 
 larity, and the solution of the problem depends upon the 
 nature of the parent's claim to the custody of the child. If 
 it is the parent's natural right, then the State cannot arbi- 
 trarily taiie the child away from the care of the parents ; 
 and any interference with the parental control must be jus- 
 tified as a police regulation on the grounds that the assump- 
 tion of the control of the child by the State is necessary for 
 the public good, because of the evil character of the parents ; 
 and like all other similar cases of restraint upon natural 
 right, the commitment of the child to the care of the State 
 authorities must rest upon a judicial decree, after a fair 
 trial, in which the parents have the right to appear and de- 
 fend themselves against the charge of being unfit to retain 
 the custody of the child. Whereas, if the parental control 
 be only a privilege or duty, granted or imposed by the State, 
 it rests with the discretion of the legislature to determine 
 under what circumstances, if at all, a parent may be en- 
 trusted with the rearing of his child, and it is not a judicial 
 question whether the legislative judgment was well founded.^ 
 
 1 "The duties and authority pertaining to the relation of parent and 
 child have their foundations In nature It is true. Nevertheless all civil- 
 ized governments have regarded this relation as falling within the legiti- 
 mate scope of legislative control. Except in countries vyhlch live In 
 barbarism, the authority of the parent over the child is nowhere left 
 absolutely without municipal definition and regulation. The period of 
 minority is fixed by positive law, vphen parental control shall cease. 
 Within this, the age when the child may marry at its own will is in like 
 manner defined. The matter of education is deemed a legitimate func- 
 tion of the State and with us is imposed upon the legislature as a duty by 
 imperative provisions of the constitution. The right of custody, even, 
 is sometimes made to depend upon considerations of moral fitness m 
 the parent to be entrusted with the formation of the character of his own 
 offspring. In some countries, and even in some of our American States, 
 education has for more than a century been made compulsory upon the 
 parent, by the infliction of direct penalties for Its neglect. The right of 
 the parent to ruin his child either morally or physically has no existence 
 in nature. The subject has always been regarded as within the purview 
 of legislative authority. How far this interference should extend is a 
 
 § 166a 
 
COMPDLSOEY EDUCATION. 561 
 
 But while we may reach the conclusion, that there is no 
 constitutional limitation to the power of the State to inter- 
 fere with the parental control of minors, it does not neces- 
 sarily follow that an arbitrary denial of the parental 
 authority will in every case be enforcible or beneficial. 
 The natural affection of parents for their offspring is ordi- 
 narily the strongest guaranty that the best interests of the 
 <5hild as well as of society will be subserved, by leaving the 
 <!hild to the ordinary care of the parents, and providing for 
 State interference in the exceptional cases, when the parents 
 are of such vile character, that the very atmosphere of the 
 home reeks with vice and crime ; and when it is impossible 
 for the child, under its home influences, to develop into a 
 fairly honest man. The natural bond, between parent and 
 child, can never be ignored by the State, without detriment 
 to the public welfare ; and a law, which interferes without 
 a good cause with the parental authority, will surely prove 
 a dead letter. "Constitutions fall when they ignore our 
 nature. Plato's republic, abolishing the family, making 
 infants but the children of the State, exists only in the 
 imagination."^ These are, however, considerations by 
 which to determine the wisdom of a law ; they cannot bring 
 the constitutionality of the law into question, enabling the 
 ■courts to refuse to carry the law into execution in any case 
 that might arise under it. 
 
 § 167. Compulsory education. — One of the popular 
 phases of police power at the present day is the education 
 of the children at the expense of the State. For many 
 years it has been the policy of every State in the Union to 
 
 <lue8tlon, not of constitutional power for the courts, but of expediency 
 and propriety, wliich it is tlie sole province of the legislature to deter- 
 mine. The judiciary has no authority to interfere with this exercise of 
 the legislative jadgmeut; and to do so would be to invade the province 
 Which by the constitution is assigned exclusively to the law-making 
 power." State v. Clottu, 33 Ind. 409. 
 1 Bliss on Sovereignty, p. 17. 
 
 36 § 167 
 
562 REGULATION OF RELATION OF PARENT AND CHILD, ETC. 
 
 bring the common school education within the reach of th& 
 poorest child in the land, by establishing free schools ; and 
 in the estimation of many the best test of the civilization of 
 a people or a State is the condition of its public schools ; 
 the more public schools, properly organized, the more civ- 
 ilized. Whatever may be the view one may hold of the 
 question of compulsory education, none but the most radi- 
 cal disciple of the laissez-faire doctrine will deny to the 
 State the right to establish and maintain free schools at th& 
 public expense, provided the attendance upon such schools 
 be left to the discretion of the child or its parents. When, 
 however, the State is not satisfied with simply providing 
 schools, the attendance to which is free to all ; but desirea 
 to force every child to partake of the State bounty,, 
 against its will and the wishes of its parents, perhap& 
 against the honest convictions of the parent that attend- 
 ance upon the public schools will be injurious to the 
 child : when this exercise of police power is attempted, it 
 will meet with a determined opposition from a large part 
 of the population. For reasons already explained,^ the 
 child who is altogether bereft of parental care, cannot in- 
 terpose any legal objection ; for he is pi'esumed to be 
 mentally incapable of judging what will best promote his 
 welfare. But it becomes a more serious question when the 
 child has parents, and they oppose his attendance upon the 
 public school. If the children do not go to any school, it 
 does not appear so hard to compel the children to attend 
 the State schools ; but it is an apparent wrong for the State 
 to deny to the parent his right to determine which school 
 the child shall attend. And yet the constitutionality of 
 the law, in its application to the two cases, must be governed 
 by the same law. If the control of children is a parental 
 right, instead of a privilege or duty, then in neither case is 
 the State authorized to interfere with the parental authority, 
 
 1 See ante, § 50. 
 § 167 
 
paeent's duty of maintenance. 563 
 
 unless the parent is morally depraved or insane: while 
 the interference in both cases would be constitutional, if 
 the parental control is held to be a privilege or duty, ac- 
 cording to the point of view. It is probable that, under the 
 influence of the social forces now at work the latter view will 
 prevail, and compulsory education become very general, at 
 least to the extent of requiring every child to attend some 
 school within the specified ages. 
 
 § 168. Parent's duty of maintenance. — The law of every 
 civilized nation imposes upon the parent the duty to main- 
 tain and support the child during his period of infancy, 
 when he is unable to support himself. Having brought the 
 child into the world, he owes this duty, not only to the 
 child, but to society as well, and the legal enforcement of 
 this duty is a justifiable exercise of police power. Prob- 
 ably no one will dispute this, as long as the duty is confined 
 to the support of the child during the time when it is phys- 
 ically or mentally incapable of providing for its own 
 maintenance ; and the duty may be made to last as long as 
 the incapacity exists, notwithstanding it is permanent and 
 will continue through life to old age. But when there is 
 no actual incapacity, and the child is really able to provide 
 for him or herself, may the State impose upon the parent 
 the duty to support the child during the time that the State 
 requires the child to be in attendance upon the schools? 
 This might very properly be considered a doubtful exercise 
 of police power. Still, if the education is necessary to make 
 the child a valuable citizen, and can be made compulsory ; 
 as long as this requirement is kept within the limits of ne- 
 cessity, it would seem that the maintenance of the child dur- 
 ing its attendance upon the school would be as much the 
 duty of the parent, as to provide for the child's physical 
 wants during its early infancy. If the question is ever 
 raised, and this is quite likely in any effort to make com- 
 
 « 168 
 
564 REGULATION OF RELATION OP PARENT AND CHILD, ETC. 
 
 pulsory education a realized fact, it will probably be settled 
 ia favor of the power of the State to impose this duty. 
 
 § 169. Child's duty to support indigent parents. — 
 
 BlacJsstone says : ' ' The duties of children to their parents 
 arise from a principle of natural justice and retribution. 
 For to those who gave us existence, we naturally owe sub- 
 jection and obedience during our minority, and honor and 
 reverence ever after ; they who protected us in the weakness 
 of infancy are entitled to our protection in the infirmity of 
 their age ; they who by sustenance and education have en- 
 abled their offspring to prosper, ought in return to be sup- 
 ported by that offspring in case they stand in need of 
 assistance." ^ In the support of the claim of a moral duty 
 the reasons assigned by Blackstone are all sufficient, but 
 they cannot constitute the basis of a legal duty. Inde- 
 pendently of statute in England and in this country, the 
 child is under no legal duty to support its aged parents.* 
 But statutes have been passed in England and in most of 
 of the United States, providing for the legal enforcement of 
 this obligation, at least to the extent of relieving the public 
 from the support of the paupers.* The same legal duty 
 has been imposed upon children by the laws of other coun- 
 tries, for example, the Athenians.* On what ground can 
 the imposition of these statutory duties be justified? 
 Gratitude is the reason assigned by Blackstone for the 
 exaction of the moral duty. Will the law undertake to com= 
 pel children to manifest to their parents gratitude for past 
 care and maintenance ? That is clearly not the object of 
 the statutes. Their object is to relieve the community of 
 
 1 1 Bl. Com. 453. 
 
 2 Rex V. Munder, 1 Stra. 190; Lebanon v. Grifflin, 45 N. H. 658; Stone 
 V. Stone, 32 Conn. 142; Edwards v. Davis, 36 Johns. 281; Reeve Dom. 
 Bel. 284. 
 
 3 Schoaler Dom. Eel. 365; 2 Kent, 208. 
 * 1 BI. Com. 453; 2 Kent's Com. 207. 
 
 § 169 
 
GUARDIAN AND WARD SUBJECT TO STATE LEGISLATION. 565 
 
 the necessity to support the aged and indigent. As a pro- 
 tection against an increased public burden, the law compels 
 the child to support his parents. The State has a clear 
 right to compel the parent to maintain his infant child, be- 
 cause the father or mother is responsible for its birth. They 
 brought the child into the world, primarily and, in ordinary 
 cases, chiefly to gratify their own desires ; and it is but just 
 that the State should compel the parents to relieve the com- 
 munity of the necessity of supporting their offspring. But 
 the child has done nothing, which in any legal sense would 
 make him responsible to the public to provide his aged 
 parents with the means of support. The law can never be 
 invoked for the purpose of enforcing pure moral obliga- 
 tions ; nor can a law be justified by the fact that its enforce- 
 ment compels incidentally the performance of a moral or 
 religious duty. Clearly, there is no reason arising out of the 
 relation of parent and child, upon which can be rested a leo-al 
 duty of the child to support the parent. If it can be justi- 
 fied on constitutional grounds at all, as an exercise of 
 police power, it can only be as a special tax upon the child, 
 and is constitutional or not, according as special taxes are 
 permitted or prohibited by the limitations of the constitu- 
 tion. 
 
 § 170. Kelatlon of guardian and ward altogether sub- 
 ject to State regulation. — Inasmuch as the guardian is 
 ordinarily appointed by a court of the State in which the 
 minor resides, there can be no doubt that the rights, obli- 
 gations and duties of guardian and ward to each other are 
 subject to the almost unlimited control of the State. The 
 guardianship is instituted for the benefit of the minor, and 
 it is for the liegislature to determine what will advance his 
 interests. But there is some doubt involved in determin- 
 ing the limitations of police power in the control and regu- 
 lation of the powers and duties of 
 
 § 170 
 
566 REGULATION OF RELATION OF PARENT AND CHILD, ETC. 
 
 § 171. Testamentary guardians. — They are those who 
 are appointed by testament by the parent of the minor child. 
 It is permitted by the law of England and of the United 
 States for the father to appoint by testament a guardian by 
 will, and it might very well be urged that if the parent has 
 a natural right to the care and control of his minor child, 
 he would have a right to determine who shall succeed him 
 in the enjoyment of this right. The one position is no 
 more unreasonable than the other. But the argument in 
 favor of the right to appoint testamentary guardians is his- 
 torically weakened by the fact that it did not exist at com- 
 mon law, the privilege being granted for the first time by 
 statute (12 Charles, II). " It is clear by the common law 
 a man could not, by any testamentary disposition, affect 
 either his land or the guardianship of his children." ^ It is 
 our own opinion that all guardianships are trusts or privil- 
 eges, and do not confer upon the guardians any absolute 
 rights ; and such has been the conclusion of the courts, in 
 the few cases in which the question has been raised.^ 
 
 • Lord Alvanley in Ex parte Chester, 7 Ves. 370. But see Coke Lit. 876, 
 in wWch there are statements calculated to throw doubt upon the cor- 
 rectness of this position, at least so far as the guardianship of the ward's 
 person is concerned. 
 
 ' Beaufort v. Berty, 1 P. Wms. 703 ; Gilbert v. Schwenck, 14 M. & W. 
 488. 
 
 § 171 
 
CHAPTER XIV. 
 
 POLICE REGULATION OF THE RELATION OF MASTER AND 
 SERVANT. 
 
 Section 175. Terms " master and servant " defined. 
 
 176. Relatioa purely voluntary. 
 
 177. Apprentices. 
 
 178. State regulation of private employments. 
 
 179. State regulation of public employments. 
 
 § 175. Terms "master and servant" defined. — Al- 
 though these terms were originally referable only to the 
 case of menial or domestic servant, maising one of the 
 domestic relations, strictly so-called ."^ they have been so 
 extended in their application as now to be synonymous 
 with employer and employee. A servant in the legal sense 
 includes now, not only the menial servants of the house- 
 hold, but every class of persons, who for a compensation 
 obligate themselves to render certain services to another. 
 It may be true that in another age and under an earlier civ- 
 ilization, "the relation of master and servant presupposes 
 two parties who stand on an unequal footing in their mutual 
 dealings ;" * but that cannot be said of the relation at the 
 present day, and under the American law. Certain em- 
 ployments denote and compel the recognition of social 
 inferiority. But in the sight of the law the servant stands 
 on a plane of equality with his master, and the constitution 
 guarantees a like protection to the rights of both. 
 
 § 176. Belation purely voluntary. — The relation of 
 master and servant is purely voluntary, resting upon the 
 contract of the parties, and as a general proposition it must 
 
 1 See Schooler Dom. Rel. 699. 
 * Scbonler Dom. Eel. 699. 
 
 (567) § 176 
 
568 REGULATION OF RELATION OF MASTER AND SERVANT. 
 
 ever remain voluntary. The relation ordinarily cannot 
 rest upon compulsion. Every man has a natural right to- 
 hire his services to any one he pleases, or refrain from such 
 hiring ; and so, likewise, it is the right of every one to de- 
 termine whose sei-vices he will hire. " It is a part of every 
 man's civil rights," says Mr. Cooley,^ " that he be left at 
 liberty to refuse business relations with any person whom- 
 soever, whether the refusal rests upon reason, or is the 
 result of whim, caprice, prejudice, or malice. With his 
 reasons neither the public nor third persons have any legal 
 concern. It is also his right to have business relations with 
 any one with whom he can make contracts; and if he is 
 wrongfully deprived of this right by others, he is entitled 
 to redress." This natural right is not limited simply to 
 the formation of the relation of master and servant. Each 
 party has the right to stipulate the terms and conditions 
 upon which he will enter into the relation and refuse to 
 form it, if the other party declines to yield to his demands. 
 Government, therefore, cannot exert any restraint upon the. 
 actions of the parties, nor interfere, except at the call of 
 one of the parties, to enforce his rights under the contract 
 which constitutes the basis of the relation. The law may 
 establish certain presumptions of the intentions of the par- 
 ties, where they have not expressly agreed otherwise ; but 
 the right to agree upon whatever terms they please cannot 
 be in any way abridged, as long as there is no trespass upon 
 the rights of third parties or of the public. 
 
 § 177. Apprentices. — But apprenticeships constitute an 
 exception to this general rule ; the ground for the excep- 
 tion being the minority of the apprentice when he enters 
 into service. His right to make a valid contract for ap- 
 prenticeship constitutes a legal exception to his general 
 disability, and is, therefore, subject to whatever regulations 
 
 ' Cooley on Torts, p. 278. 
 § 177 
 
REGULATION OF PEIVATE EMPLOYMENT. 569 
 
 the State may see fit to impose. The immaturity of the ap- 
 prentice places him on an equal footing with his master, 
 and he deserves and requires the protection of the law. 
 
 § 178. Begulation of private employment. — But be- 
 tween adults, employer and employed, since all men are 
 free and equal, and are entitled to the equal protection of 
 the law, neither party can be compelled to enter into busi- 
 ness relations with the other, except upon his own terms, 
 voluntarily and free from any coercion whatsoever. The 
 State has no right to interfere in a private employment and 
 stipulate the terms upon which the services are to be ren- 
 dered. 
 
 Ordinarily, this proposition will be readily conceded, 
 particularly if one considers the question in its bearings 
 upon his own aflairs. A feeling of indignation arises within 
 us at the contemplation of State interference to determine 
 the wages we shall pay to our domestic servants. But in 
 so far as the question is removed from its relation to our 
 own affaii's, so that it becomes less and less influenced by 
 our prejudice and self-interest, the contemplation of the 
 social inequalities of life, and the truly heartless, if not 
 iniquitous, oppression which is afforded by reason of these 
 inequalities; when we see, more and more clearly each day, 
 that the tendency of the present process of civilization is to 
 concentrate social power into the hands of a few, who, un- 
 less restrained in some way, are able to dictate terms of 
 employment to the masses, who must either accept them or 
 remain idle ; when at best they are barely enabled to pro- 
 vide for the more pressing wants of themselves and families, 
 while their employers are, at least apparently, accumulating 
 wealth to an enormous extent : when all this injustice exists, 
 or seems to exist, the impulse of a generous nature is to 
 call loudly for the intervention of the law to protect the 
 poor wage-earner from the grasping cupidity of the em- 
 ployer. That there is much suffering among the working 
 
 § 178 
 
570 EEGULATION Or RELATION OF MASTER AND SERVANT. 
 
 classes there can be no doubt. And although there may be 
 room for conjecture, whether the suffering is not largely 
 due to their own improvidence and a desire to imitate the 
 luxurious habits of the rich, rather than the oppression of 
 the capitalists, it is certainly true that the employers occupy 
 a vantage ground, by which they are enabled to appropri- 
 ate to themselves a larger share of the profits of the enter- 
 prise. But he has acquired this superior position, this 
 independence, through the exertions of his powers ; he is 
 above, and can to some extent dictate terms to, his em- 
 ployees, because his natural powers are greater, either intel- 
 lectually or morally ; and the profits which naturally flow 
 from this superiority, are but just rewards of his own en- 
 deavors. At any rate, no law can successfully cope with 
 these natural forces. 
 
 But there is undoubtedly a certain amount of un- 
 righteous oppression of the woriiiug classes. In making 
 the contract of hiring, the employer and workman deal 
 with each other at arm's length. Generally speaking, so 
 far at least as the settlement of the terms of hiring is 
 concerned, their rights and interests are antagonistic. It is 
 to the interest of the employer to get a given amount of 
 work done for the lowest wages possible, and it is the inter- 
 est of the wage-earner to get the highest wages obtainable 
 for the given amount of work. If the parties cannot agree 
 upon the terms which will be mutually profitable, can the 
 law determine this dispute for the contesting parties? By 
 statute 30 and 31 Vict., ch. 105 ,i " equitable councils of 
 conciliation," composed of delegates selected by the mas- 
 ters and workiugmen, were empowered to adjust ail such 
 disputes, and determine the rate of wages to be paid to the 
 worlimen. As long as the submission of such disputes to 
 such a council be left voluntary, the statute could meet with 
 no constitutional objection, if it should be enacted in any of 
 
 » 1867. 
 
 § 178 
 
REGULATION OF PRIVATE EMPLOYMENT. 571 
 
 the American States. But its constitutionality would be 
 very doubtful, if the submission was made compulsory. 
 There is an irreconcilable inconsistency in seeking the pro- 
 tection of the law and yet proclaiming one's equality before 
 "the law. As soon as the law places one for any just reason 
 under a disability, or gives to another a privilege not en- 
 joyed in common by all,^ protection from oppregsiou 
 becomes a duty of the State, so far as the disability or its 
 cause, or the grant of the privilege, produces or renders the 
 oppression possible. The law can only guarantee to men, 
 on a legal plane of equality, protection against trespasses 
 upon their rights. To place the working classes under 
 special protection against the aggression of capital, beyond 
 the careful and strict enforcement of their rights ; to compel 
 the employer to pay the rate of wages, determined by the 
 State to be equitable, is to change the government from a 
 government of freemen to a paternal government, or a des- 
 potism, which is the same thing. 
 
 But even if this reasoning should not be sufficient to 
 prove the unconstitutionality of State interference in the 
 relation of master and servant, the very futility of such 
 interference would at least cast a doubt upon its constitu- 
 tionality. Law can never create social forces. On the 
 contrary, law is the resultant of the social forces. If the 
 social forces at work at any given time produce an ine- 
 quality in the material conditions of classes of society, and 
 give rise to the oppression of one class by another ; if the 
 inferior class is not naturally strong enough to resist the 
 ■oppression, when free from legal restraints, no law can 
 afford it protection. For how can the workingman secure 
 the enforcement of a law made for his protection, when 
 the protection of the State is required, because his needs 
 and the necessities of his family compel him to submit to 
 the unricrhteous exactions of the capitalist. Will not the 
 
 1 See ante, § 93. 
 
5 72 REGULATION OF RELATION OF MASTER AND SERVANT. 
 
 same needs and necessities force him to place by his vote men 
 in the various State offices whose antipathy to his interests; 
 will make the law a dead letter, if not secure its repeal ? In 
 England, where suffrage is limited, such a law is somewhat rea- 
 sonable, because those for whose benefit it was enacted are 
 under legal disability. But in this country where suffrage 
 is universal, and the wage-earners constitute a vast majority 
 of the voters, if they are unable to assert their claims 
 without the aid of law, they cannot do so with its aid. And 
 thus their inefficacy confirms the unconstitutionality of 
 laws, which are designed to protect the workman against the 
 oppression of the employer Laws, therefore, which are 
 designed to regulate the terms of hiring in strictly private 
 employments, are unconstitutional, because they operate as 
 an interference with one's natural liberty, in a case in which 
 there is no trespass upon private right, and no threatening^ 
 injury to the public. And this conclusion not only applies 
 to laws regulating the rate of wages of private workmen, 
 but also any other law, whose object is to regulate any of 
 the terms of hiring, such as the number of hours of labor 
 per day, which the employer may demand. There can be 
 no constitutional interference by the State in the private 
 relation of master and servant except for the purpose of 
 preventing frauds and trespasses. 
 
 § 179. Pabllc employments. — But when the employ- 
 ment is connected with a public interest, and particularly 
 when it is connected with the enjoyment of a franchise or 
 privilege, not enjoyed by private individuals, — a privilege 
 which is granted because it will promote the public welfare, 
 such as the railroad, the telegraph, the telephone, and the 
 like, — the public is interested in the proper conduct of the 
 business ; and any disturbance of, or interference with, its 
 regular and orderly prosecution will materially affect the 
 public interest. Where the privilege is a monopoly, as 
 is practically the case with the telegraph in the United 
 § 179 
 
PUBLIC EMPLOYMENTS. 573 
 
 States, a general disagreement of the employer with his op- 
 eratives may often stop the wheels of industry and produce 
 a general paralysis of all commercial energies ; and although 
 the operatives of the railroad or of the telegraph are no more 
 entitled to the aid of the law in enforcing their demand, or 
 in securing better terms from their employers, than the 
 strictly private workman, any disagreement between the 
 railroad and telegraph companies and their employees affects 
 the public interest by interfering with their means of com- 
 munication and transportation ; and to promote the general 
 welfare, not to aid the operatives, it is a legitimate exercise 
 of the police power of the State to compel both parties to 
 submit their claims to a competent tribunal, thus adjusting 
 their differences, and preventing an injury to the public. 
 There may be a practical inability to enforce even such a 
 a law, because of the powerful political influence of the 
 capitalists ; but it is nevertheless justifiable, on constitutional 
 grounds, because the legal equality is disturbed in these 
 <!ases by the grant to the corporation o^ a franchise, a priv- 
 ilege not obtainable by the workman. 
 
 § 179 
 
CHAPTER XV. 
 
 POLICE REGULATION OF COKPORATIONS. 
 
 Section 188. The Inviolability of the charters of private corporations. 
 
 189. Police control of corporations. 
 
 190. Freedom from police control, as a franchise. 
 
 191. Police regulation of corporations in general. 
 
 192. Laws regulating rates and changes of corporations. 
 
 193. Police regulation of foreign corporations. 
 191. Police regulation of railroads. 
 
 § 188. The Inviolability of the charters of private cor- 
 porations. — At a very early day, it was decided by the 
 Supreme Court of the United States that the charter of a 
 private corporation constituted a contract between the State 
 and the stockholders or members of the corporation, by 
 which the State, in consideration of the public benefit, and 
 of the investment of capital in the corporate business, grants 
 to these capitalists the power to act together as one legal 
 personality, with corporate powers and liabilities, separate 
 and apart from the individual responsibilities of the mem- 
 bers. The opinion of Chief Justice Marshall, in the leading 
 case on this subject,^ has been so often affirmed by the Fed- 
 eral courts, as well as by the State Courts,* that it may now 
 
 1 Dartmouth College v. Woodward, 4 Wheat. 618. 
 
 » See Planters' Bank v. Sharp, 6 How. (U. S.) 301 ; Trustees, etc., v. 
 Indiana, 14 How. (U. S.) 268; Piqua Bank v. Knoop, 16 How. (D. S.) 
 369; Hawthorne v. Calef, 2 Wall. 10; Blnghamton Bridge Case, 3 Wall. 51; 
 State V. Moyes, 47 Me. 189; Wales v. Stetson, 2 Mass. 143; Central Bridge 
 ». LoweU, 15 Gray, 106; Grammar School v. Burt, 11 Vt. 632; Backus®. 
 Lebanon, 11 N. H. 19 ; People v. Manchester, 9 Wend. 351 ; Commonwealth 
 V. Cullen, 13 Pa. St. 133 ; Cleveland, etc., E. E. Co. v. Speer, 56 Pa. St. 325 ; 
 Zabriskie v. Hackensack, etc., B. R. Co., 17 N.J. Eq. 178; State «. Mayor 
 of Newark, 35 N. J. L. 157; Bank of Old Dominion ». McVeigh, 20 Gratt. 
 457 ; Bank of State v. Bank of Cape Fear, 13 Ired. 75 ; "Mills v. Williams, 
 11 Ired. 658; Young v. Harrison, 6 Ga. 130; State v. Accommodation Bank, 
 § 188 (574) 
 
INVIOLABILITY OP CHABTKRS OF PRIVATE CORPORATIONS. 575 
 
 be laid down as a settled principle of constitutional law, 
 that an act of incorporation is such a contract between the 
 State and the incorporators as is protected by the clause of 
 the Federal constitution, which denies to the States the 
 power to pass any law impairing the obligation of a contract.^ 
 Any law, therefore, of a State which impairs the corporate 
 rights, or which repeals, annuls or amends the corporate 
 charter, against the wishes of the members of the corpora- 
 tion, impairs the obligation of a contract, and is conse- 
 quently void ; unless the power, so to amend, annul or 
 repeal the charter, is reserved to the State in the charter or 
 by the general laws of the State, in force at the time that 
 the charter was granted. It is now a very common statu- 
 tory or constitutional provision that all charters of private 
 corporations are held subject to the power of the State to 
 repeal or amend. But, even in the case of such a reserva- 
 tion, the charter cannot be so amended or repealed as to 
 interfere with the vested rights of property, which the stock- 
 holders may have acquired by and through the corporation.^ 
 
 26 La. Ann. 288; State v. Tombeckbee Bank, 2 Stew. 30; Commercial Bank 
 V. State, 14 Miss. 699; Mobile, etc., R. R. Co. v. Moseley, 62 Miss. 127; 
 Sala V. New Orleans, 2 Woods (TJ. S. C. C), 188; State v. Southern, etc., 
 E. R. Co., 24 Tex. 80 ; Hamilton v. Keith, 5 Bush, 458 ; Marysville Turn- 
 pike Co V. How, 14 B. Mon. 429 ; Mechanics' Bank v. DeBolt, 1 Ohio St. 
 891 ; Edwards v. Jagers, 19 Ind. 407 ; Flint v. Woodhull, 25 Mich. 99 ; Bruf- 
 fett V. G. W. Ry. Co., 25 111. 353 ; St. Louis v. Manufacturers' Sav. Bank, 
 49 Mo. 674; Harrington v. Tennessee, 95 U. S. 679. 
 
 1 See an ingenious argument against the correctness of the decision of 
 the court in the Dartmouth College Case, in 8 Am. Law Rev. 190. The 
 writer of the article, inter alia, makes the point that, inasmuch as the 
 author of this clause of the constitution, Judge Wilson, of Pennsylvania, 
 afterwards of the Supreme court of the United States, was a Scotch 
 jawyer, and therefore learned in the Roman or Civil law, we must look to 
 that system for the real meaning of the phrase " obligation of a contract." 
 In the Roman law, obligatio ex contractu, invariably meant a pecuniary 
 liability. 
 
 ' Holyoke Co. v. Lyman, 15 Wall. 500; inland Fishery Commissioners 
 V. Holyoke Water Power Co., 104 Mass. 446 ; Worchester v. N. and W. R. 
 E. Co., 109 Mass. 103 ; Thornton v. Marginal Freight Railway, 123 Mass 
 32. 
 
 § 188 
 
576 POLICE REGULATION OF CORPORATIONS. 
 
 § 189. Police control of corporations. — It has been 
 supposed that, because it is the settled law of this country 
 that the legislature of a State cannot repeal or amend the 
 charter of a private corporation, unless the power is expressly 
 reserved, these perpetual corpoi'ations are placed beyond 
 the reach of the ordinary police power of the State ; that, 
 while all the rights of the natural person are subject to the 
 exercise of the police power in the interest of the public, 
 these corporations are free from this burden, because the 
 slightest police regulation operates as a restriction of the 
 enjoyment of the corporate franchise, and hence impairs 
 the obligation of a contract. Such a construction of the 
 operation of this constitutional provision is not only scien- 
 tifically absurb, but it is in violation of the ordinary rules 
 of constitutional construction, which provide for a strict 
 construction of all grants by the State to the individual. 
 Apart from the question whether the State can barter away 
 its police power,^ the intention of a legislature to place a 
 private corporation beyond the reach of the police power 
 of the State ; to grant to a corporation the right to do what 
 it pleases in the exercise of its corporate powers, it matters 
 not how much injury is inflicted upon the public, and yet 
 be subject to no control or restraint, which is not provided 
 by the laws in force when the charter was granted ; is so 
 manifestly unreasonable, that we cannot suppose that t{ie 
 legislature so intended, unless this extraordinary privilege 
 is expressly granted. It cannot be implied from the grant 
 of the charter. The subjection of existing corporations to 
 new police regulations does not involve a repeal or amend- 
 ment of the charters, for an act of incorporation simply 
 guarantees to the incorporators the right to act and do busi- 
 ness as a corporate body, subject, of course, to the laws of the 
 land, and the legitimate control of government. The legal 
 status of the corporation, as an artificial person, does not 
 
 1 As to which, see post, § 190. 
 § 189 
 
POLICE CONTROL OF CORPORATIONS. 577 
 
 ■differ from the natural person, except so far as the charter 
 may reserve or grant special privileges or impose peculiar 
 burdens. As a general proposition, corporations are in- 
 cluded under the name of " persons " in coming within the 
 operation of the law. In order that the law may apply to 
 corporations, it is not necessary that they be expressly 
 named .^ Thus general laws, relating to the validity or 
 enforcement of contracts, are applicable to corporations, 
 ^although persons are only mentioned.* So, also, are cor- 
 porations included in the operation of laws relating to real 
 ■estate, in which there is reference only to "inhabitants" 
 and "occupiers."* Corporations are taxpayers, like 
 natural persons, although the tax laws should speak only of 
 " persons," " individuals," or " inhabitants ; " * and a law, 
 relating to practice or procedure, which refers to " persons " 
 or " residents," would also include corporations within its 
 operation.^ But where the law, on account of the peculiar 
 
 » Beaston v. Farmers' Bk., 12 Pet. 102; U. S. v. Amedy, 11 Wheat. 
 392; People ». TJtica Ins. Co., 15 Johns. 382; Planters' & Mechanics' Bk. 
 V. Andrews, 8 Porter, 404. Compare School Directors v. Carlisle Bk., 8 
 Watts, 291; Blair ». Worley, 1 Scam. 178. And see, Com. v. Phoenix Bk., 
 11 Mete. 129 ; Androscoggin Water Power Co. v. Bethel Steam Mill Co., 
 -64 Me. 441. 
 
 2 Mott B. Hicks, 1 Cow. 513; State of Indiana v. Woram, 6 Hill, 33; 
 State V. Nashville University, 4 Humph. 157; Commercial Bk. v. Nolan, 8 
 Miss. 608. 
 
 8 Curtis V. Kent Water Works, 7 B. & C. 314; State o. Nashville Uni- 
 Tersity, 4 Humph. 157 ; King v. Gardner, Cowper, 79 ; Lehigh Bridge Co. 
 ■». Lehigh Coal & Nav. Co., 4 Eawle, 8. 
 
 * Otis ®. Weare, 8 Gray, 609; People v. Utica Ins. Co., 15 Johns. 368; 
 International L. Ass. Co. v. Comrs., 28 Barb. 318 ; Ontario Bk. v. Bunnell, 
 10 Wend. 186; Baldwin v. Trustees, 37 Me. 369; Curtis v. Kent Water 
 Works, 7B. & C. 314. 
 
 * Knox V. Protection Ins. Co., 9 Conn. 430; Mayor of Mobile v. Row- 
 land, 26 Ala. (n. s.) 498; Planters' Bk. «. Andrews, 8 Porter, 404 ; Trenton 
 Bk. V. Haverstick, 6 Halst. 171; Mineral Point R. R. v. Keep, 22 III. 9; 
 City of St. Louis v. Rogers, 7 Mo. 19; Bushel v. Commonwealth Ins. Co., 
 15 Serg. & R. 176 ; Eslava v. Ames Plow Co., 47 Ala. 384 ; Brauser o. New 
 England Fire Ins. Co., 21 Wis. 606 ; Bristol & Chicago & Aurora R. R. 16 
 111. 436; Bk. of No. America v. Dunvllle, etc., K. K., 82 111. 493; Western 
 
 37 § 189 
 
578 POLICE EBGULATION OF COKPOEATION8. 
 
 character of the corporation as a legal entity, relates tO" 
 matters which are connected with and can only concern 
 natural persons, the law cannot apply to corporations. For 
 example, a corporation cannot be a rebel within the opera- 
 tion of the confiscation acts of the United States.^ 
 
 The act of incorporation, therefore is a governmental act 
 of*creatiou. It creates a legal, artificial personality which 
 becomes the subject of rights, and liiie any other legal 
 personality holds these rights subject to the ordinary laws 
 of the State, Unless there is an express reservation of a 
 freedom from the restraint of police regulations, it would 
 be an exceedingly liberal, and hence wrongful, construction 
 of the constitutional protection against the impairment of 
 the obligation of contracts, to place corporations above and 
 beyond the ordinary police power of the State. As a gen- 
 eral proposition, the principle here advocated has been 
 recognized and adopted by the courts generally. It is only 
 in the application of the principle to a particular case that 
 any doubt as to its correctness is felt or expressed. 
 
 The leading case on the subject is that of Thorpe v, 
 Eutland, etc., K. R. Co.,^ in which Judge Redfield has dis- 
 cussed fully and at length the police control of corporations. 
 In referring to 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 com- 
 fort, health, and prosperity of the State, of the perfect 
 " right in the legislature to do which no question ever was, 
 or upon acknowledegd general principles, ever can be made, 
 so far as natural persons are concerned," he says : — 
 
 " It is certainly calculated to excite surprise and alarm, 
 that the right to do the same in regard to railways should 
 be made a serious question. This objection is made gener- 
 
 Transportatlon Co. v. Scheu, 19 N. Y. 408. See Olcott «. Tioga E. B., 20 
 N. T. 210; Commercial M. F. Ins. Co. v. Daerson, 28 Gratt. 631. 
 
 1 Eisley v. PlioBnix Bank, 83 N. Y. 318. 
 
 » 27 Vt. 150. 
 § 189 
 
POLICE CONTROL OF CORPORATIONS. 579 
 
 ally upon two grounds : 1 . That it subjects corporations to 
 a 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 . * * * 
 
 " All the cases agree that the indispensable franchises of 
 corporations can not be destroyed or essentially modified. 
 This is the very point upon which the leading case of Dart- 
 mouth College V. Woodward, was decided, and which every 
 well considered case in this country maintains. But when it 
 is attempted upon this basis to deny the power of regulating 
 the internal policy of railroads, and their mode of transacting 
 their general business, so far as it tends unreasonably to in- 
 fringe the rights or interests of others, it is putting the whole 
 subject of railway control quite above the legislation of the 
 country. * * * This is a control by legislative action, 
 coming within the operation of the maxim, sic utere tuo ut 
 alienum non Icedas, and which has always been exercised in 
 this manner in all free States, in regard to those whose busi- 
 ness is dangerous and destructive to other persons, property, 
 or business. Slaughterhouses, powder mills, or houses for 
 keeping powder, unhealthy manufactories, keeping of wild 
 animals, and even domestic animals, dangerous to persons or 
 property, have always been regarded as under the control of 
 the legislature. It seems incredible how any doubt should 
 have arisen upon the point now before the court. And it 
 would seem it could not, except from some undefined appre- 
 hension, 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 
 anatural person in the same business, with the equal power 
 to pursue and accomplish it, which I trust has been suffi- 
 ciently denied." ^ * * * 
 
 ' See, also, to the same effect, Gowen v. Penobscott R. E. Co., 44' 
 Me. 140; Cnmmings v. Maxwell, 45 Me. 190; Commonwealth v. Intoxi- 
 cating Liquors, 115 Mass. 153; Lord v. Litchfield, 36 Conn. 116 (4 Am Rep. 
 41); Frankford, etc., Ry. Co. v. Philadelphia, 68 Pa. St. 119; Taggert v. 
 
 § 189 
 
580 POLICE REGULATION OF CORPORATIONS. 
 
 § 190. Freedom from police control, as a franchise. — 
 
 The claim has often been made that, if it is stipulated in 
 the charter of a corporation that it shall not be subjected to 
 a specific police regulation, such a contract is binding upon 
 all the subsequent legislatures, and they are powerless to 
 prevent an injury to the public by instituting this regula- 
 tion. In other words, it is claimed, that the State may, by 
 contract irrevocably preclude itself from the exercise of its 
 ordinary police powef , it matters not what evil consequences 
 to the public may thereby be prevented. The recognition 
 of this doctrine would, if often acted upon, certainly ham- 
 per the government in its effort to protect its citizens from 
 threatening dangers. The dangerous character of the doc- 
 trine is particularly noticeable in its application to the police 
 control of corporations. The franchise of the corporation, 
 even if it consists only in the privilege of acting and doing 
 business in a corporate capacity, enables it, as against the 
 private individual, to occupy a vantage ground; its power 
 for harming and controlling the rights and interests of in- 
 dividuals is thereby greatly increased, and the necessity for 
 police control, in order that the rights of individuals may 
 not be exposed to the danger of trespass, is proportionately 
 increased. To recognize in a legislature the power by a 
 contract to tie the hands of all future legislatures, and de- 
 prive them of the power to interpose regulations that may 
 become needful as a protection to the public against the 
 aggressions or other unlawful acts of the corporation, would 
 be a specimen of political suicide. It has, therefore, been 
 often decided, in the American courts. Federal and State, 
 that the State cannot barter away, or in any way curtail its 
 
 Western, etc., R. R. Co., 24 Md. 563; Hayneso. Carter, 9 La. Ann. 265; 
 Louisville, etc., R. R. Co. a. Ballard, 2 Met. (Ky.) 165; Blair ». Milwau- 
 kee, etc., R. R. Co., 20 Wis. 254; Reapers' Bank®. WUlard, 24 lU. 433; 
 Bank of Republics. Hamilton, 21 III. 53; Dingman®. People, 51 111. 277; 
 State ». Herod, 29 Iowa, 123; Gorman c.Pac. R. R. Co., 26 Mo. 441; Ex 
 parte N.E. & S. W. R. R. Co., 37 Ala. 679. 
 
 § 190 
 
FREEDOM FROM POLICE CONTROL, AS A FRANCHISE. 581 
 
 exercise of any of those powers, which are essential attri- 
 butes of sovereignty, and particularly the police power, by 
 which the actions of individuals are so regulated as not to 
 injure others; and any contract, by which the State under- 
 takes to do this, 13 void, and does not come within the 
 constitutional protection,^ In a late case, it has been 
 definitely settled that the power to regulate the actions of 
 individuals and corporations, for the promotion of the pub- 
 lic health and the public morals, can never be restricted or 
 suppressed by any contract or agreement of the State. In 
 
 delivering the opinion of the court, , J. says : " The 
 
 appellant insists that, so far as the act of 1869 partakes of the 
 nature of an irrepealable contract, the legislature exceeded 
 its authority, and it had no power to tie the hands of the 
 legislature in the future from legislating on that subject 
 without being bound by the terms of the statute then en- 
 acted. This proposition presents the real point in the case. 
 Let us see clearly what it is. It does not deny the power 
 of that legislature to create a corporation, with power to do 
 the business of landing live stock and providing a place for 
 slaughtering them in the city. It does not deny the power 
 to locate the place where this shall be done exclusively. It 
 does not deny even the power to give an exclusive right, for 
 the time being, to particular persons or to a corporation to 
 provide this stock landing, and to establish this slaughter- 
 house. But it does deny the power of that legislature to 
 continue this right so that no future legislature, not even 
 the same body, can repeal or modify it, or grant similar 
 privileges to others. It concedes that such a law, so long 
 
 ' See Beer Company v. Massachusetts, 97 XJ. S. 25 ; Fertilizing Com- 
 pany V. Hyde Park, 97 U. S. 659; Stone v. Mississippi, 101 U. S. 814; 
 Tliorpe V. Rutland, etc., R. E. Co., 27 Vt. 140, 149 ; People v. Commis. 
 sioners, 69 N. Y. 92; Hammett o. Philadelpliia, 65 Pa. St. 146 (3 Am. 
 Sep. 615); Him v. State, 1 Oliio St. 15; Bradley v. McAtee, 7 Bush, 667 
 (3 Am. Eep. 809) ; Indianapolis, etc., R. R. Co. v. Kercheval, 16 Ind. 84 ; 
 Toledo, etc., R. R. Co. v, Jacksonville, 67 111. 37; Chicago Packing Co. v. 
 Chicago, 88 111. 221. 
 
 § 190 
 
582 POLICE REGULATION OF COEPOKATION8 . 
 
 as it remains on the statute book as the latest expression of 
 the legislative will, is a yalid law, and must be obeyed, 
 which is all that was decided by this court in the Slaughter- 
 house Cases. But it asserts the right of the legislature to 
 repeal such a statute, or to make a new one inconsistent 
 with it, whenever, in the wisdom of such legislature, it is 
 for the good of the public it should be done. Nor does this 
 proposition contravene the established principle that the 
 legislature of a State may make contracts on many subjects 
 which will bind it, and will bind succeeding legislatures for 
 the time the contract has to run, so that its provisions can 
 neither be repealed, nor its obligations impaired. The ex- 
 amples are numerous where this has been done, and the 
 contract upheld. The denial of this power, in the present 
 instance, rests upon the ground that the power of the legis- 
 lature intended to be suspended is one so indispensable to 
 the public welfare that it cannot be bargained away by con- 
 tract. It is that well known but undefined power, called 
 the police power. # * * While we are not prepared to 
 say that the legislature can make valid contracts on no sub- 
 ject embraced in the largest definition of police power, we 
 think that, in regard to two subjects so embraced, it cannot 
 by any contract, limit the exercise of those powers to the 
 prejudice of the general welfare. These are the public 
 health and the public morals. The preservation of those is 
 so necessary to the best interests of the social organization, 
 that a wise policy forbids the legislative body to divest itself 
 of the power to enact laws for the preservation of health 
 and the repression of crime." ^ 
 
 On the principle, that the State cannot barter away its 
 police power, it has been held lawful for the State to pro- 
 hibit all lotteries, and to apply the law to existing lottery 
 companies.'' So, also, is it possible for the State to pro- 
 
 1 Butchers' Union Slaughter-house, etc., Co. ». Crescent. City Live 
 Stock, etc., Co., Ill TJ. S. 746. 
 
 » Stone V. Mississippi, 101 U. S. 814; State v. Morris, 77 N. C. 512; 
 § 127 
 
FREEDOM FROM POLICE CONTROL, AS A FRANCHISE. 583 
 
 liibit the sale and manufacture of liquor, although it has 
 previously issued licenses, authorizing the prosecution of 
 these trades,^ and such prohibitory laws may be enforced 
 against existing corporations, whose charters empower them 
 to carry on the prohibited trade.'' In like manner, may 
 laws incorporated in the charter for the government of 
 a corporation, in its relation to the public, be repealed or 
 -amended.' But it has been held in Illinois that, while the 
 State may regulate the interment of the dead, and in the 
 first instance prescribe the localities in which burial will be 
 permitted, yet it is not possible for the legislature to pro- 
 hibit burial upon lands purchased and laid out as a ceme- 
 tery at great expense, by a corporation, which has been 
 -chartered for that purpose.* 
 
 Bass V. Nashville, Meigs, i21 (33 Am. Dec. 164) ; Mississippi Soc. of 
 Arts V. Musgrove, 44 Miss. 820 ; Moore v. State, 48 Miss. 147 (12 Am. 
 Rep. 367); State v. Woodward, 89 Ind. 110 (46 Am. Eep. 160). See, 
 contra, Broadbent v. Tuscaloosa, etc.. Association, 45 Ala. 170; Kellam 
 V. State, 66 Ind. 588. 
 
 1 Calder v. Kurby, 5 Gray, 597; Commonwealth v. Brennan, 103 Mass. 
 70; La Croix v. County Gomrs., 50 Conn. 321 (47 Am. Rep. 648) ; Met. 
 Boaid of Excise v. Barsie, 34 N. Y. 657; Baltimore v. Clunity, 23 Md. 
 449; Fell u. State, 42 Md. 71 (20 Am. Eep. 83) ; McKinney v. Salem, 77 
 Ind. 213. Contra, Adams v. Hatchett, 27 N. H. 289; State v. Phalen, 3 
 Harr. 441; Boyd v. State, 36 Ala. 329. A license for the prosecution of 
 any trade, which tends to be injurious to the public, may be revoked by 
 asubsequent prohibitory law. State v. Burgoyne, 7 Lea, 173. See, gen- 
 •erally, State ». Cook, 24 Minn. 247; Pleuler v. State, 11 Neb. 547. See 
 ante, §§ 101-103. 
 
 * Beer Company v. Massachusetts, 91 U. S. 25 ; Commonwealth v. 
 Intoxicating Liquors, 115 Mass. 153. 
 
 8 Bank of Columbia v. Okely, 4 Wheat. 235; Baltimore, etc., E. R. 
 ■Co. V. Nesbit, 10 How. 395; Railroad v. Heoht, 95 U. S. 170; s. c. 29 
 Ark. 661; Gowen v. Penobscot R. R. Co., 45 Me. 140; Ex parte N. 
 E. & S. W. R. E. Co., 37 Ala (N. s.) 679; Howard v. Kentucky, etc., Ins. 
 <Jo., 13 B. Mon. 282. 
 
 * Lakeview v. Rose Hill Cemetery Co., 70 111. 192. But see, contra, 
 Brick Presbyterian Church v. Mayor, etc., 6 Cowen, 538; Coates v. 
 Mayor, etc., 7 Cow. 585; Kincaid's Appeal, 66 Pa. St. 423; City Council 
 •V. Wentworth Street Baptist Church, 4 Strobh. 310. See, also, ante, 
 i 122(J. 
 
 § 190 
 
584 POLICE REGULATION OF CORPORATIONS. 
 
 § 191. Police reg'alation of corporations in gen> 
 eral. — But the corporation is no more subject to arbitrary 
 regulations than is the individual. In order that the regu- 
 lation of a corporation may be within the constitutional 
 limitations of police power, it must have reference to the 
 welfare of society by the prevention or control of those 
 actions which are calculated to inflict injury upon the pub- 
 lic or the individual. As in all other cases of the exercise* 
 of the police power, the police regulations of corporations 
 must be confined to the enforcement of the maxim, sic 
 utere tuo, ut alienum non laedas, subject to the observance 
 of which every corporate charter must be supposed to have 
 been granted. Any attempt, under the guise of police 
 regulations, to repeal or amend the charter, or to abridge 
 any of the corporate rights and privileges, would of course 
 be unconstitutional and void.* The property of the corpo- 
 ration cannot be confiscated, under pretense of being a 
 police regulation, without payment of compensation. 
 Thus, it was held unconstitutional for a law to require an 
 existing turnpike company to set back its first gate two miles 
 from the corporate limits of a town, which had grown up 
 at the original gate, under penalty of forfeiting all right to 
 tolls.* The two miles of road, included within the exist- 
 ing turnpike, might have been confiscated in the exercise 
 of the power of eminent domain, but compensation for the 
 loss would have been required. So, also, would it be un- 
 lawful to compel a railroad or turnpike to permit certain 
 persons to make use of the road without paying the cus- 
 
 1 State V. Noyes, 47 Me. 189; Washington Bridge Co. v. State, 18- 
 Conn. 53; Benson v. Mayor, etc., of N. T. 10 Barb. 223; Hegeman v. 
 Western E. K. Co., 13 N. Y. 9; Commonwealth e. Pennsylvania Canal 
 Co., 66 Pa. St. 41; Bailey v. Philadelphia, etc., R. R. Co., 4 Harr. 389; 
 People V. Jackson, etc., Plank Road Co., 9 Mich. 285; Attorney-General 
 V. Chicago, etc., E. E. Co., 35 Wis. 425; Sioan v. Pacific E. E. Co., 61 
 Mo. 24. 
 
 ' White's Creek Turnpike Co. v. Davidson Co., 3 Tenn. Ch. 396. See 
 Detroit v. Plankroad Co., 13 Mich. 140. 
 § 191 
 
POLICE KEGULATION OF COEPOKATIONS IN GENERAL. 585- 
 
 tomary toU.^ And while it is permissible to prohibit a 
 corporation from doing the thing, or engaging in the busi- 
 ness, for which it was created, no law can make the corpo- 
 ration responsible for the damages suffered by the public, 
 as a consequenee of what the corporation was authorized 
 to do. Thus, for example, where the legislature author- 
 ized the construction of a bridge over a navigable stream, 
 of such dimensions that it would necessarily become an 
 obstruction to the navigation of the river, the bridge com- 
 pany could not be made responsible to those whose navigation 
 of the stream was impeded, for that would in effect be a de- 
 privation of the corporate rights.^ So, also, would it be 
 unlawful for the legislature to provide by a subsequent law 
 for the complete forfeiture of the charter as a penalty for 
 a prohibited act which under the existing law was a cause 
 for only a partial forfeiture, because the enforcement of the 
 new penalty against a corporation for acts already done 
 would operate to impair the obligation of contracts.* But 
 there is no constitutional objection to the application to ex- 
 isting corporations of new remedies for the attainment of 
 justice, and to secure a performance of the corporate duties- 
 to the public* For example, it is lawful for a legislature 
 to extend the individual liability of the stockholders of a 
 bank for any debt thereafter incurred.* A law is valid, 
 also, which provides that existing corporations shall main- 
 tain their corporate organizations for a limited period after 
 their dissolution, and continue their capacity for being 
 sued, for the purpose of winding up its affairs.' 
 
 1 Pingry v. Washburn, 1 Aiken, 264. 
 
 * Bailey «. Plilladelphia, etc., E. R. Co., 4 Harr. 389. 
 
 ' People V. Jackson, etc., Plankroad Co., 9 Mich. 285. 
 
 * Crawford v Branch Bank, 7 How. 279; Gowen v. Penobscot E. B. 
 Co., 44 Me. 140; Commonwealth v. Cochituate Bank, 3 Allen, 42. 
 
 5 Stanley ». Stanley, 26 Me. 196; Coffin v. Eich, 45 Me. 607; Hathorne 
 V. Calef, 53 Me. 471; Child v. Coffla, 17 Mass. 64; Gray v. Coffin, 9 Cush. 
 200. 
 
 "> Lincoln, etc., Bank v. Elchardson, 1 Greenl. 79- Franklin Bank v.- 
 
 § 191 
 
586 POLICE REGCLATION OF CORPORATIONS. 
 
 Corporations may also be required to submit to an in- 
 spection of their affairs by a public oflScial, in order to as- 
 certain any breaches of duty to the public.^ And the 
 legislature may lawfully provide the extreme remedy of 
 dissolving the bank or other corporation, whenever, upon 
 examination by the public inspector, it should be found in 
 an insolvent condition.* In the case last cited,* it was held 
 that a law was constitutional, which provided for the 
 judicial dissolution of an insurance company, chartered un- 
 der the laws of the State, whenever the auditor upon ex- 
 amination of its affairs, should be of the opinion that its 
 financial condition is such as to render its further continu- 
 ance hazardous to those who are insured in the company. 
 In pronouncing the law to be constitutional the court says: 
 
 " With certain constitutional limitations, the rights of 
 all persons, whether natural or artificial, are subject to such 
 legislative control as the legislature may deem necessary 
 for the general welfare, and it is a fundamental error to 
 suppose there is any difference in this respect between the 
 rights of natural and artificial persons. They both stand 
 precisely upon the same footing. While personal liberty 
 is guaranteed by the constitution to every citizen, yet, by 
 disregarding the rights of others, one may forfeit not only 
 his liberty, but even life itself. So a corporation, by re- 
 fusing to conform its business affairs as to defeat the ob- 
 
 Cooper, 36 Me. 179; Fosters. Essex Bank, 10 Mass. 245; Nevitt o. 
 Bank of Port Gibson, 6 Smedes & M. 513. And a State law of this kind 
 may be made to apply to foreign corporations, in the endeavor to secure 
 a just distribution of their assets lying within the jurisdictionTof the 
 State, which enacted the law. McGoon v. Scales, 9 WaH. 3^1 ; Stetson v. 
 City Bank, 2 Ohio St. 114; Lewis v. Bank of Kentucky, 12 Ohio St. 
 132. 
 
 '^ Hunter 7?. Bnrnsville Pike Co., 56 Ind. 213; Commonwealth v. Far- 
 mers' and Mechanics' Bank, 21 Pick. 542. See Planters' Bank v. Sharp, 
 6 How. 340. 
 
 ' Commonwealth v. Farmers' & Mechanics' Bank, 21 Pick. 542 ; Nevltt 
 V. Bank of Port Gibson, 6 Smedes & M. 613; Ward v. Farwell, 97 HI. 698. 
 
 ' Ward V. Farwell, supra. 
 § 191 
 
REGULATING RATES AND CHARGES OP CORPORATIONS. 587 
 
 jects and purposes of its promoters, and the design of the 
 legislature in creating it, may forfeit the right to further 
 carry on its business, and also its existence as an artificial 
 being. The fact that the stockholders may be personally 
 injured, by declaring a forfeiture of the company's fran- 
 chises, and causing its afiairs to be wound up in a case of 
 this kind, is not a sufficient reason why it should not be 
 •done, if the further continuance of its business would be 
 dangerous to the community. In the proper exercise of 
 the police power, laws are often enacted by the legislature 
 for the common good which materially affect the value of 
 certain kinds of property, by which a particular class of 
 persons are injured ; yet such consequences do not at all 
 affect the validity of the legislation, and to such losses the 
 maxim damnum absque injuria applies. It is generally 
 said one may do as he pleases with his own property, but 
 this is subject to the important qualification — he must 
 please to do with it as the law requires. • * * The 
 maxim sic utere tuo, ut alienum non Icedas, applies to all 
 «uch cases. • * * 
 
 " These general principles would seem to warrant the 
 conclusion that the legislature is authorized, in the proper 
 exercise of the police power, to adopt such necessary legis- 
 lation and regulations as will effectually protect the com- 
 munity from losses incident to a public business, conducted 
 by a corporation under a charter from the State, where such 
 business has become hazardous, and will probably result in 
 financial distress and disappointed hopes to those who, 
 ignorant of its condition, do business with it."^ 
 
 § 192. Liaws regulating rates and charges of corpora- 
 tions. — The right of the legislature to regulate the rates 
 and charges of a corporation has frequently been the sub- 
 ject of litigation in the courts of this country. The estab- 
 
 ^ Ward V. Farwell, 97 111. 608, 609 
 
 § 192 
 
588 POLICE KEGOLATION OF COEPORATION8. 
 
 lishment of extensive and rich corporations, which are 
 often enabled by their combined capital and by the pos- 
 session of special franchises to make a practical monopoly 
 of the business in which they are engaged, and conse- 
 quently to demand of those, who are compelled by circum- 
 stances to have business dealings with the corporations,, 
 extortionate and unequal charges. For these reasons, 
 there is a general popular demand for legislative regulation 
 of the rates and charges of the corporations. 
 
 The general power of the government to regulate prices 
 has already been fully explained,^ and the constitutional 
 limitations discussed. It will not be necessary to repeat 
 here what has been stated there. It was ascertained by a 
 study of the cases that where the government by the grant 
 of a more or less exclusive franchise increases the economic 
 powers of a person or persons, so as to create a monopoly 
 against those to whom the franchise is denied, it had the 
 power to regulate the charges of such person or persons, so 
 that the public may obtain that reasonable enjoyment of the 
 benefits arising out of the monopoly, which indeed was 
 the consideration or inducement of the grant of the 
 franchise.^ The Supreme Court of the United States 
 has even gone further in the recognition of the legisla- 
 tive power to regulate prices, and asserted that, when 
 circumstances make of a particular business "a virtual 
 monopoly," the legislature may prevent extortion by 
 the regulation of prices.* But in order to justify the 
 legislative regulation of the charges of corporations, it will 
 not be necessary to go to the length of this decision. In 
 the first place, if the power to repeal or amend the charter 
 is reserved to the State, no question can arise ; for in the 
 exercise of the power to amend, the legislature may require, 
 
 1 See ante, § 93. 
 
 2 See ante, § 93. 
 
 * Walte, Ch. J., in Munn ». Illinois, 94 U. S. 113. See the criticism of 
 this decision in § 93. 
 § 192 
 
EEGDLATING RATES AND CHARGES OF CORPORATIONS. 589 
 
 as a condition of the continuance of the corporate existence, 
 the observance of whatever police regulation it may see fit 
 to establish, in the same manner, and to the same extent, 
 that it may impose conditions of every sort and kind, in the 
 original grant of the charter. When the power to amend 
 or repeal is not reserved, the question becomes import- 
 ant, whether the corporation may be subjected to this 
 regulation. In regard to police regulations generally, we 
 have seen^ that the corporation occupies no vantage ground 
 above the individual ; that both corporations and natural 
 persons may be subjected to the same regulations under like 
 circumstances ; and that the institution of new and more 
 burdensome regulations, after the creation of the cor- 
 poration, does not constitute any infringement of the cor- 
 porate rights, provided no attempt is made, under the 
 guise of police regulation, to destroy or impair any of the 
 substantial rights of the corporation. It is, therefore, not 
 difficult, under the principles explained and set forth in a 
 previous section,* to justify the regulation of the rates and 
 charges of railroads, turnpikes, telegraph and telephone 
 companies, and other corporations, to which the govern- 
 ment has granted some special franchise — to each of the 
 corporations named is given the right to appropriate land 
 in the exercise of the right of eminent domain, without 
 which it would be almost impossible to construct their lines 
 or road — for the grant of the franchise made these corpo- 
 rations legal monopolies, as against the public, and conse- 
 quently they became subject to police regulation, in order 
 to protect the public from extortion. It has been gener- 
 ally held, with only one or two exceptions, that the legisla- 
 ture may regulate the charges of corporations of this kind.* 
 
 ' See ante, § 189. 
 
 « §93. 
 
 ' Eallroads— Chicago, etc., R. R. v. Iowa, 94 U. S. 115; Peck v. Chi- 
 cago, etc,,E.R., 94 U. S. 164, 176; UnionPac. Ry. v. U. S., 99 U. S. 700; 
 Cin., H, & D. R. R. Co. v. Cole, 29 Ohio, 125; Iron R.R. Co. v. Lawrence 
 
 § 192 
 
590 POLICE EEGUIiATION OF COKPOEATIONS. 
 
 Whether corporations, which receive no franchise or 
 privilege from the government, may be subjected to State 
 regulation of their charges in the conduct of their business, 
 for example, a corporation engaged in the flour milling or 
 cotton manufacturing business, depends upon other grounds. 
 Under the principle established in Munn v. Illinois,^ such a 
 regulation may be easily justified, where the business under 
 peculiar circumstances has become a virtual monopoly. 
 So, also, may a corporation of this kind be subjected to 
 such a regulation, because the very creation of the corpora- 
 tion, which constitutes an authority for the compact com- 
 bination of the capital of many persons in one business, 
 may be considered a special franchise, increasing the power 
 of those who compose the corporation, over the property 
 and the necessities of others. There has been no need for 
 the regulations of the charges of such corporations, and 
 consequently we have no adjudications upon the subject, 
 excejpt the case of Munn v. Illinois. 
 
 It has been stated, as the generally accepted doctrine, 
 that the State cannot make a valid contract in limitation of 
 the exercise of its police power.* But a disposition is dis- 
 played by the authorities to make of the power to regulate 
 the charges of corporations an exception to this general 
 rule, by denying to the legislature the power to regulate 
 such charges by subsequent laws, where the power to do so 
 
 Fnmace Co., 29 Ohio St. 208 ; Chicago & Alton E. R Co. v. People, ex rel 
 Koerner, 67 111. 11 (16 Am. Eep. 599); Buggies v. People, 91 111. 256; 
 Illinois Cent. B. E. Co. v. People, 95 111. 313; Blake o. Winona, 
 etc., R. E. Co., 19 Minn. 418 (18 Am. Eep. 845); .. c. 94 U. S.- 
 180; Mobile & M. E. E. Co. v. Steiner, 61 Ala. 559. Contra, Atty-Gen. 
 V. Chicago, etc., E. E. Co., 36 Wis 425; Philadelphia, etc., E. E. Co. p. 
 Bowers, 4 Houst. 506. Gas and water companies — Spring Valley Water- 
 works V. Schottler, 110 V. S. 347 ; State v. Columbus Gaslight, etc., Co., 
 34 Ohio St. 216 (32 Am. Eep. 390). Ferry companies — Parker v. Metro- 
 politan E. E. Co., 109 Mass. 507. Telephone Companies — Hockett o» 
 State, Sup. Ct. Ind. Cent. L. J., July 9, 1886. 
 
 1 94 U. S. 113. 
 
 2 See ante, § 19i 
 
 § 192 
 
POLICE REGULATION OP FOEEIGN CORPORATIONS. 591 
 
 is denied by the charter, or where the lawful charges are 
 stipulated in the charter. Chief Justice Waite, of the 
 Supreme Court of the United States, expressed the opinion 
 of the court on this point, in the following language : — 
 
 " This company, in the transaction of its business, ha» 
 the same rights and is subject to the same control as private 
 individuals under the same circumstances. It must carry 
 when called upon to do so, and can charge only a reasonable 
 sum for the carriage. In the absence of any legislative 
 regulation iipon the subject, the courts must decide for it, 
 as they do for private persons when controversies arise, 
 what is reasonable. But when the legislature steps in and 
 prescribes a maximum of charge, it operates upon this cor- 
 poration the same as it does upon individuals engaged in a 
 similar business. It was within the power of the company 
 to call upon the legislature to fix permanently this limit and 
 make it a part of the charter, and, if it was refused, to 
 abstain from building the road and establishing the contem- 
 plated business. If that had been done the charter might 
 have presented a contract against future legislative interfer- 
 ence. But it was not ; and the company invested its capital, 
 relying upon the good faith of the people and the wisdom 
 and impartiality of the legislators for protection against 
 wrong under the form of legislation regulation." ^ 
 
 § 193. Police re^nlation of foreign corporations. — It 
 
 is provided by the United States constitution ^ that * ' the citi- 
 zens of each State shall be entitled to all the privileges and 
 immunities of citizens of the several States; " and under 
 this clause of the constitution the citizen of one State is 
 
 1 Ch. J. Waite in Chicago, etc., R. R. Co. v. Iowa, 94 U. S. 155. See, 
 also, Spring Valley Water Works v. Schottler, 110 U. S. 347; Hamilton v. 
 Keith, 6 Bush, 458; niinoisCent. R. R. Co. v. People, 95 111. 113; Sloan v. 
 Pacific R. R. Co., 61 Mo. 24 (21 Am. Rep. 397;) Farmers' Loan, etc. «. 
 Stone, et. al., U. S. C. C. Miss., 18 Cent. L. J. 472. 
 
 « U. 8. Const., art. IV., § 2, cl. 1. 
 
 § 193 
 
592 POLICE EEGUIiATION OF COEPOEATION8. 
 
 protected against any discrimination in another State be- 
 tween himself and the citizens of the latter State. He is 
 entitled to the equal enjoyment of the privileges of the citi- 
 zen, and any arbitrary discrimination between him and the 
 citizen of the latter State in the matter of police regula- 
 tions, would be in violation of this constitutional provision. 
 But corporations are not considered to be citizens within 
 the operation of this guaranty. The legal existence of a 
 corporation is confined to the territory of the State which 
 brings the corporation into existence. The corporations of 
 one State are not entitled to the privileges or immunities of 
 the citizens of the several States, and consequently they 
 cannot claim the right to transact business in any other 
 State but the one in which they were created. If they are 
 permitted to exercise their corporate powers in any other 
 State, it is a privilege and not a guaranteed right. A State 
 may, without violating any provision of the constitution of 
 the United States, prohibit altogether the doing of business 
 by foreign corporations within its territory; and if the 
 privilege is granted, it may be coupled with all sorts of 
 conditions, the performance of which constitutes a condi- 
 tion precedent to the enjoyment of the privilege ; and these 
 requirements will not be open to constitutional objection, 
 because they are not made applicable to domestic corpora- 
 tions.^ It is even permissible for the State legislature to 
 
 1 Liverpool Ins. Co. v. Mass., 1 Wall. 506; Bank of Angasta v. Earle, 
 13 Pet. 619; Pnrdy v. N. Y. & N. H. R. R. Co., 61 N. Y.353; Tatem v. 
 Wright et al., 23 N. J. L. 429 ; Slaughter v. Commonwealth, 13 Gratt. 
 767; Osborn v. Mobile, H Ala. 493; Commonwealth v. Milton, 12 B. Mon. 
 212; People v. Thurber, 13 111. 554; Wood Mowing Machine Co. o. Cald- 
 well, 54 Ind. 270 (23 Am. Rep. 641) ; Am. Union Tel. Co. v. W. U. Tel. 
 Co., 67 Ala. 26 (42 Am. Rep. 90). It is very common to subject foreign 
 insurance companies to special and strict police regulations. Exempt 
 Firemen's Fund v. Eoome, 93 N. Y. 313 (45 Am. Rep. 217); Thome v. 
 Travelers' Ins. Co., 80 Pa. St. 15 (21 Am. Rep. 89) ; Cincinnati M. H. 
 Assurance Co. v. Rosenthal, 55 111. 85 (8 Am. Rep. 626) ; Pierce v. People, 
 106 m. 11 (46 Am. Rep. 683) ; Fire Department of Milwaukee v. Helfen- 
 stein, 16 Wis. 136. See Doyle v. Ins. Co., 94 U. S. 635. 
 § 193 
 
POLICE EEGULATION OF EAILEOADS. 593 
 
 provide for the exaction of a peaalty from any agent of a 
 foreign corporation (in this case it was an insurance com- 
 pany), who shall act without authority from the State, 
 although the contract is made out of the State, and pro- 
 vides that he shall be deemed the agent of the other party to 
 the contract.* But a foreign corporation cannot be taxed 
 for the purchase of raw material, which is shipped from the 
 taxing State to its native State for manufacture, for that 
 cannot be considered a " doing of business within the com- 
 monwealth." ^ In the absence of special regulations, 
 whenever a corporation does business in another State, it is 
 so far considered a corporation of that State as to be amen- 
 able to its ordinary police regulations.^ 
 
 § 194. Police regulation of railroads. — The police 
 regulation of the management of railroads is extremely 
 common and varied, and consequently the exercise of police 
 power over them has more frequently been the subject of 
 litigation. But there is no more need for a judicial deter- 
 mination of the limitations upon police power in this phase 
 of its exercise than in any other. The same principles 
 govern its exercise in every case. Every one, whether a 
 ■corporation or a natural person, must so enjoy and make 
 use of his rights as not to injure another ; and the State 
 may institute whatever reasonable regulations may be 
 necessary to prevent injury to the public or private persons. 
 Here, as elsewhere, however, the exercise of police power 
 must be confined to those regulations which may be needed, 
 and which do actually tend, to prevent the infliction of injury 
 upon others. And it is a judicial question whether a par- 
 ticular regulation is a reasonable exercise of police power. 
 The public necessity of the exercise of the police power in 
 
 1 Pierce ». People, 106 111. 11 (46 Am. Eep. 683). 
 * Commonwealth v. Standard Oil Co., 101 Pa. St. 119. 
 ' Peik V. Cliicago, etc., E. E. Co., 94 V. S. 164; Milnor v. N. Y., etc., 
 E. E. Co., 53 N. Y. 164; McGregor v. Erie Eailway, 35 N. J. L. 115. 
 
 38 § 194 
 
594 POLICE REGULATION OF CORPOEATIONS . 
 
 any case is a matter addressed to the discretion of the legis- 
 lature; but whether a given regulation is a reasonable 
 restriction upon personal rights is a judicial question.^ 
 
 A disposition is manifested in some of the cases to claim 
 for the railroad company the application of the same rule 
 of reasonableness, as would be applicable to regulalions of 
 the private property of individuals; that is, prohibiting all 
 regulalions of railroads and of their property, which would 
 not be applicable generally to the private property of in- 
 dividuals. But the reasonableness or unreasonableness of a 
 police regulation is subject to variation with a change of 
 circumstances, and in the character of the subject of the 
 regulation. A regulation may be reasonable when directed 
 
 1 " What are reasonable regulations, and what are the subjects of police 
 powers must necessarily be judicial questions. The law-maMng power 
 is the sole judge when the necessity exists, and when, if at aU, it will 
 exercise the right to enact such laws. 
 
 "Like other powers of government, there are constitutional limitations 
 to the exercise of the police power. The legislatare cannot, under the 
 pretense of exercising this power, enact laws not necessary to the pre- 
 servation of the health and safety of the community that will be oppres- 
 sive and burdensome upon the citizen. If it should prohibit that which 
 is harmless in itself, or command that to be done which does not tend to 
 promote the health, safety or welfare of society, it would be an unauthor- 
 ized exercise of power, and it would be the duty of the court to declare 
 such legislation void." 
 
 " An ordinance of the city which required a railroad to keep flagmah by 
 day and red lantern by night at a certain street crossing, when the com- 
 pany had only a single track, over which only its usual trains passed, and 
 where it did not appear that the crossing was unusually dangerous, or 
 more so than ordinary crossings, was held not to be a reasonable require- 
 ment, and therefore within the constitutional limitation on the exercise 
 of the police power. 
 
 "A regulation that would require a railroad to place a flagman at such 
 places where danger to public safety, in judgment of prudent persons, 
 might be apprehended at any time, would be a reasonable one." Toledo, 
 etc., R. R. V. Jacksonville, 67 111. 37. See, also, Chicago & Alton B. K. 
 Co. ». People, 67 111. H; State v. Ea't Orango, 12 Vroom, 127; City of 
 Erie v. Erie Canal Co., 59 Pa. St. 174; Phila. W. B. E. E. Co. v. Bowers, 
 4 HoQst. 606; Ladd v. Soutlieni C. P. & M. Co., 63 Tex. 172; Sloan p. 
 Pac. R. B. Co., 61 Mo. 24. 
 § 194 
 
POLICE REGULATION OF RAILROADS. 595 
 
 against the use of certain kinds of property, while it would 
 be unreasonable, if applied to other and different kinds of 
 property, the enjoyment or use of which does not threaten 
 the injury, against which the regulation was directed. But 
 there can be no doubt that a corporation cannot be subjected 
 to a regulation, which would not be applicable to a natural 
 person under lilce circumstances. The police regulations 
 resemble greatly the regulation of the use of the common 
 highways, and a comparison of them, asset forth in the fol- 
 lowing language of a distinguished judge, will assist in reach- 
 ing a clear understanding of the scope of police power in 
 the regulation of railroads. In Chicago, B. & Q. R. E. 
 Co. V. Attorney-General of lowa,^ Dillon, J., says : — 
 
 " In all civilized countries the duty of providing and pre- 
 serving safe and convenient highways to facilitate trade and 
 communication between different parts of the State or 
 community is considered a governmental duty. This may 
 be done by the government directly, or through the agency 
 of corporations created for that purpose. The right of 
 public supervision and control over highways results from 
 the power and duty of providing and preserving them. As 
 to ordinary highways these propositions are unquestioned. 
 But it is denied that they apply to railways built by private 
 capital, and owned by private corporations created for the 
 purpose of building them. Whoever studies the nature 
 and purposes of railways constructed under the authority 
 of the State by means of private capital will see that such 
 railroads possess a twofold character. Such a railway is in 
 part public and in part private. Because of its public 
 character, relations, and uses, the judicial tribunals of this 
 country, State and national, have at length settled the law 
 to be that the State, to secure their construction, may 
 exert in favor of the corporation authorized by it to build 
 the road both its power of eminent domain and of taxation. 
 
 ' 9 West. Jur. 347. 
 
 § 194 
 
596 
 
 POLICE RE&CJLATION OF COEPORATIONS. 
 
 This the State cannot do in respect of occupations or pur- 
 pobes private in their nature. * * * Jq jj-g public 
 character a railroad is an improved highway, or means of 
 more rapid and commodious communication, and its public 
 character is not divested by the fact that its ownership is 
 private. * * » In its relations to its stockholders, a 
 railroad, or the property in the road and its income is pri- 
 vate property, and, subject to the lawful or reserved rights 
 of the public, is invested with the sanctity of other private 
 property. The distinction here indicated marks with gen- 
 eral accuracy the extent of legislative control, except where 
 this has been surrendered or abridged by a valid legisla- 
 tive contract. Over the railway as a highway, and in all its 
 public relations, the State, by virtue of its general legisla- 
 tive power, has supei-vision and control ; but over the rights 
 of the shareholders, so far as these are private property, the 
 State has the same power and no greater than over other 
 private property." ' 
 
 1 " We apprehend there can be no manner of doubt that the legislature 
 may, If they deem the public good requires it, of which they are to judge, 
 and in all doubtful cases their judgment is final, require several railroads 
 in the State to establish and maintain the same kind of police which Is 
 now observed upon some of the more important roads in the country for 
 their own security or even such a police as is found upon the English 
 railways and those upon the continent of Europe. No one ever ques- 
 tioned the right of the Connecticut legislature to require trains upon all 
 their roads to come to a stand before passing draws in bridges ; or of the 
 Massachusetts legislature to require the same thing before passing an- 
 other railroad. And by parity of reason may all railways be required so 
 to conduct themselves, as to other persons, natural or corporate, as "not 
 unreasonably to injure them or their property. And since the business 
 of railways is specially dangerous, they may be required to) bear the 
 expense of erecting such safeguards, as will render it ordinarily safe to 
 others, as is often required of natural persons under such circumstances. 
 "There would be no end of illustrations upon this subject, which in 
 detail are more familiar to others than to us. It may be extended tothe 
 supervision of the track, tending switches, running upon the time of 
 other trains, running roads with a single track, using improper rails, not 
 using proper precautions by way of safety beams in case of the breaking 
 of axle trees, number of brakeraen upon train with reference to number 
 § 194 
 
POLICE EEGDLATION OF EAILROADS. 597 
 
 As has already been intimated, the number of police reg- 
 ulations of railroads is very great, and the character of them 
 is as varied. For the purpose of illustrating the scope of 
 these regulations, it will only be necessary to refer to the 
 more important ones, which have been passed upon by the 
 courts. 
 
 For example, in the exercise of the ordinary police power 
 of the State, it has been held to be reasonable to require 
 all railroads to fence their tracks, not alone for the protec- 
 tion of the live stock of the abutting owners. Indeed, the 
 chief object of the statute is probably to protect the trav- 
 eling public against accidents occurring through collision 
 of trains with cattle.^ One exercise of the power to require 
 railroads to fence their tracks does not preclude a second 
 regulation of the same kind, providing for other and differ- 
 ent fences.* And the railroad company can not relieve 
 
 of cars, employing intemperate or incompetent engineers and servants, 
 running beyond a given rate of speed and a thousand similar things, 
 most of which have been made the subject of legislation or iudiclal de- 
 termination, and all of which may be." Thorpe v. Rutland, etc., R. R. 
 27 Wis. 1*0. See, also, Richmond, F. &P. R. R. Co. v. City of Richmond, 
 26 Gratt. 83 ; s. c. 96 U. S. 621 ; People v. Boston, etc., R. R. Co., 70 N. Y. 
 569; State v. East Orange, 12 Vroom, 127; Phila., W. & B. R. R. Co. v. 
 Bowers, 5 Houst. 606 ; Cin. H. & D. R. R. Co. v. Sullivan, 32 Ohio St. 
 162; Pittsburg, C. & St. L. R. R. Co. ». Brown, 67Ind. 45 (33 Am. Rep. 
 73); Toledo, W., etc., R. R. Co. ■». Jacksonville, 67 111.37; Galveston, 
 etc., R. R. Co. V. Gierse, 61 Tex. 189. 
 
 > Sawyer v. Vt., etc., R. R. Co., 105 Mass. 196; Wilder v. Maine Cent. 
 R.R. Co., 65 Me. 332; Smith o. Eastern R. R. Co., 35 N. H. 356; Bulkley 
 V. N.Y., etc., R. R. Co., 27 Conn. 497; Bradley v. Buffalo, etc.R. R. Co., 
 34 N. Y. 429; Penn. R. R. Co. v. Riblet, 66 Pa. St. 164 (5 Am. Rep. 360) ; 
 Thorpe v. Rutland, etc., R. R. Co., 27 Vt. 140; Indianapolis, etc., R. R. 
 Co. V. Marshall, 27 Ind. 300; New Albany, etc., R. R. Co. v. Tilton, 12 
 Ind. 10; Indianapolis, etc., R. R. Co. v. Kercheval, 16 Ind. 84; Toledo, 
 etc., R. R. Co. V. Eowler, 22 Ind. 316; Indianapolis, etc., R. R. Co. v. 
 Parker, 29 Ind. 471; Ohio & Miss. R. R. Co. v. McClelland, 25 111. 140; 
 Gorman v. Pac. R. R. Co., 26 Mo. 441 ; Jones v. Galena, etc., R. R. Co., 
 16 Iowa, 6; Winona, etc., R. R. Co. v. Waldron, 11 Minn. 676; Blewett 
 V Wyandotte, etc., R. R. Co., 72 Mo. 583; Kan. Pac. Ry. Co. ». Mower, 
 ■16 Kan. 573; Louisville & Nashville, R. R. Co. «. Burke, 6 Caldw. 46. 
 
 ' Gillam v. Sioux City, etc., R. R. Co., 26 Minn. 268. 
 
 § 194 
 
598 POLICE REGULATION OF CORPORATIONS. 
 
 itself from the obligation to erect and maintain the fence 
 by any contracts with the abutting owners. "^ The railroad 
 company is, of course, liable for whatever injury is done to 
 persons or property in consequence of any neglect in 
 maintaining the fence.^ In the absence of special legisla- 
 tion, the judgment will be confined to the recovery o f the 
 actual damages suffered in consequence of the neglect. But 
 the statute may constitutionally make the company liable 
 for double the value of the stock killed by reason of the 
 neglect to properly maintain the fences. This requirement 
 is justified on the same grounds as the authority to recover 
 exemplary or punitory damages.^ And it may also be pro- 
 vided by statute that the railroad company m;iy be held 
 liable for all losses of property, occurring in consequence 
 of the neglect of the railroad in the maintenance of the 
 fences, although the owner may be guilty of contributory 
 negligence.* Bat there must be some violation of the law, 
 
 ' New Albany, etc., E. R. Co. v. Tilton, 12 Ind. 3; New Albany, etc., 
 B. R. Co. a. Maiden, 12 Ind. 10. See Poler v. N. Y. Cent. R. E. Co., 16 
 N. Y. 476; Shepherd v. Buff., N. Y. & Erie R. R. Co., 35 N. Y. 641. 
 
 2 As to what degree of care is required of railroads in this connection, 
 see Chicago, etc., R. R. Co. v. Barsie, 55 111. 226; Antisdel v. Chicago, 
 etc., E. R. Co., 26 Wis. 145; Lemmon v. Chicago, etc., R. E. Co., 32 Iowa, 
 161. 
 
 3 Cairo, etc., R. E, Co. v. People, 92 111. 97 (34 Am. Rep. 112) ; Bar- 
 nett V. Atlantic, etc., E. E. Co., 68 Mo. 56 (30 Am. Eep. 773) ; Spealnj^n 
 V. Eailroad Co., 71 Mo. 434; Humes v. Mo. Pac. R. R. Co., 82 Mo. 22 
 (52 Am Eep. 369); Tredway v. Eailroad Co., 43 Iowa, 527; Welsh v. Chi- 
 cago, B. & Q. E. E. Co., 53 Iowa, 632 ; Little Rock & Ft. Scott E. E. 
 Co. i;. Payne, 83 Ark. 816 (34 Am. Eep. 65). Contra, Madison, etc., E. .E. 
 Co. D. Whiteneck, 8 Ind. 217; Indiana Cent. R. W. Co. v. Gapen, 10 Ind. 
 292; Atchison & Neb. R. E. Co. v. Baty, 6 Neb. 37 (29 Am. Eep. 356). It 
 is also competent to include attorney's fees as part of the damages that 
 may be recovered. Peoria, etc., E. E. Co. v. Duggan, 109 111. 537 (60 Am. 
 Eep. 619. 
 
 * Corwin v. N. Y. & Erie E. E. Co,, 13 N. Y. 42 ; Horn v. Atlantic, etci 
 E. R. Co., 35 N. H. 169; O'Bannoa v. Louisville, etc., E. E. Co., 8 Bush, 
 348; Jeffersonville, etc., R. R. Co. v. Nichols, 30 Ind. 321; Jeffersonville, 
 etc., R. Co. V. Parkhurst, 34 Ind. 501 ; Illinois Cent. E. E. Co. v. Arnold, 
 47 111. 173; Hinman v. Chicago, etc., E. E. Co., 28 Iowa, 491. 
 § 194 
 
POLICE KEGULATION OF RAILROADS. 599 
 
 or some act of negligence, on the part of the raih-oad com- 
 pany, in order that the company may be held liable for 
 damages suffered from the running of trains. A statute 
 which makes a railroad responsible " for all expenses of the 
 coroner and his inquest, and of the burial of all persons 
 who may die on the cars, or who may be killed by collision 
 or other accident occurring to such cars, or otherwise," is, 
 therefore, properly declared to be unconstitutional, so far 
 as it is applied to cases of loss, in Avhich the company has 
 not been guilty of negligence or of a violation of some legal 
 duty.^ The State may in like manner regulate the grades 
 of railways, generally, and particularly at the points where 
 they cross highways or other railways, and provide for an 
 apportionment of the expense of making the crossings ; * and 
 prescribe the rate of speed at which highways and other rail- 
 ways may be crossed,' and while running within the corpo- 
 rate limits of a city or town.* The State may institute other 
 regulations, having the protection of life in view, such as 
 requiring all railroad companies to ring their bell or blow 
 the whistle of the engine on approaching a crossing or high- 
 way ;' or to place and keep flagmen at such places, and at such 
 
 1 Ohio & Mississippi E. E. Co. v. Lackey, 78 III. 55 (20 Am. Bep. 259). 
 But see Pennsylvania E. E. Co. w.Kiblet, 66 Pa. St. 164 (5 Am. Eep. 360), 
 in which it was held to be competent for the legislature to compel an 
 -existing railroad to repair all fences along its route that may be destroyed 
 by fire from its engines. See, to the same effect, Lyman v. Boston, etc., 
 E. E. Co., i Cush. 288; Gorman v. Pac. E. E. Co., 26 Mo. 441; Eode- 
 macherv. Milwaukee, etc., E. E. Co., 41 Iowa, 297 (20 Am. Eep. 592). 
 
 " Fitchburg, E. E. Co. v. Grand Junction E. E. Co., 1 Allen, 552; s.c, 
 4 Allen, 198; Pittsburg, etc., E. E. Co. v. S. W. Penn. E. K. Co., 77 Pa. 
 St. 173. 
 
 « Mobile, etc., E. E. Co. v. State, 51 Miss. 137. 
 
 * Eockford, etc., E. E. Co. v. Hillmer, 72 111. 235; Chicago, Eock 
 Island, etc., E. K. Co. v. Eeidy, 66 111. 43 ; Mobile & Ohio E. E. Co. v. 
 State, 51 Miss. 137; Horn v. Chicago, etc., E. E. Co., 38 Wis. 463; Haas 
 V. Chicago & N. W. E. E. Co., 41 Wis. 44. 
 
 5 Veazie v. Mayo, 45 Me. 560; s. c. 49 Me. 156; Commonwealth v. 
 Eastern E. E. Co., 103 Mass. 254 (4 Am. Eep. 555) ; Bulkley v. N. Y. & 
 N. H. E. E. Co.. 27 Conn. 486; Stuyvesant v. Mayor, etc., of New York, 
 
 § 194 
 
600 POLICE REGULATION OF COEPORATION8. 
 
 times of the day, when the traffic and the passage of numbers 
 of people make such a regulation reasonable and necessary.* 
 It is also a lawful exercise of police power to require a rail- 
 road to construct a bridge in passing over a public highway, 
 instead of crossing it at the same grade ; ^ or to prohibit a 
 railroad from constructing its tracks or running cars on any 
 street so near the depot of another railroad, as to interfere 
 with a safe and convenient access to the latter road.' 
 
 The State may also make all kinds of reasonable regula- 
 tions for insuring a fair and impartial carriage of all per- 
 sons and property. The right to regulate the charges of 
 corporations in general has already been fully explained,* 
 and the railroad companies may be subjected to such regu- 
 lations, as well as any other corporation. In consequence 
 of the racial prejudice, there is a disposition in some parts 
 of the country to make invidious distinctions in the accom- 
 modations provided for the white and black passengers. 
 While it is in violation of the common-law rights of the 
 negro, as well as of the constitutional and statutory pro- 
 visions, which guarantee to the negro equal privileges in 
 the use and enjoyment of the public conveyances, hotels, 
 
 7 Cow. 588; Pittsburg, Cin. & St. L. E. R. Co. v. Brown, 67 Ind. 45 (3a 
 Am. Rep. 73) ; Galena v. Chicago U. B. B. Co. ». Dill, 22 111. 264 ; Ohia 
 & M. E. E. Co. V. McClelland, 25 111. 140; Chicago, etc., R. R. Co. v. 
 Triplett, 38 III. 482 ; Clark's Administrator v. Hannibal & St. Jo. R. R. Co., 
 86 Mo. 202. 
 
 ' Toledo, etc., R. R. Co. v. Jacksonville, 67 HI. 37; Lake Shore &. 
 M. S. Ey. Co. «. Cincinnati, S. & C. Ey. Co., 30 Ohio St. 604. 
 
 2 People V. Boston & Albany R. E. Co., 70 N. Y. 669. But it would be 
 unconstitutional to require railroad companies to build crossings at the 
 intersection of their road with a highway, which had been constructed 
 after the railroad has been built. City of Erie ». Erie Canal Co., 69 Pa. 
 St. 174; 111. Cent. R. R. Co. v. Bloomlngton, 76 111. 447. 
 
 ' Portland, S. & P. R. E. Co. v. Boston and Maine E. E. Co., 65 Me. 
 122. 
 
 * See, ante, § 192. The State may require all railroad companies to 
 post up in its stations schedules of the rates of fare and freight, without 
 violating any constitutional provision. Eailroad v. Fuller, 17 Wall. 
 660. 
 
 § 194 
 
POLICE REGULATION OF RAILROADS. 601 
 
 and places of amusement,^ if the railroad company should 
 deny to him the use of the first-class and sleeping cars;* 
 yet it is lawful for them to provide separate cars for the 
 two races, provided their appointments and conveniences 
 are equally good.' It is also held to be a lawful exercise of 
 police power to require railroads to draw the cars of other 
 corporations as well as their own, at reasonable times and 
 for a reasonable compensation, to be agreed upon by the 
 parties or fixed by the railroad commissioners.* 
 
 In order that the inhabitants of the country, through 
 which a railroad passes, may be assured a reasonable use of 
 the regular trains, the legislature may determine at what 
 stations and for what length of time, all trains shall be 
 required to stop,® and all agreements of railroad companies, 
 which limit the location of stations, are void because 
 against public policy.* 
 
 It has also been held to be competent for a State to pro- 
 hibit the running of freight trains on Sundays.^ 
 
 Indeed, it would be impossible to mention in detail all 
 the police regulations to which railroad corporations are 
 now subjected in the interests of the public. The test of 
 their constitutionality is, in every case, whether they are 
 
 1 As to the constitutionality of these laws in general, see, ante, § 92. 
 
 2 Alexander & Washington R. R. Co. v. Brown, 17 Wall. 445; Chicago' 
 & N. W. Ey. Co. V. WUliams, 55 111. 185; Coger v. N. W. Union Packet Co., 
 37 Iowa, 145. 
 
 » West Chester & P. E. E. Co. v. Miles, 55 Pa. St. 209 ; Central E. R. 
 Co. V. Green, 86 Pa. St. 421 ; Chicago & N. W. Ey. Co. v. Williams, 65 lU. 
 186. 
 
 * Rae V. Grand Trunk Ey. Co., 14 Ted. Rep. 401. 
 
 5 Eailroad Commissioners v. Portland, etc., R. E. Co., 63 Me. 269 (18 
 Am. Eep. 208); State v. New Haven, etc., R. E. Co., 43 Conn. 851 ; Dav- 
 idson V. State, 4 Tex. Ct. App. 645 (30 Am. Eep. 166) ; Chicago & Alton R. 
 E. Co V. People, 105 HI. 657. 
 
 « St. Joseph & Denver City R. R. Co. v. Ryan, 11 Kan. 602 (15 Am. 
 Eep. 357) ; Marsh v. Fairburg, etc., R. R. Co., 64 lU. 414 (16 Am. Rep. 
 I\64) ; St. Louis, etc., R. R. Co. v. Mathers, 71 III. 692 (22 Am. Eep. 
 122). 
 
 ' State V. Bait. & Ohio E. R. Co., 24 W. Va. 783 (49 Am Rep. 290). 
 
 § 194 
 
602 POLICK REGULATION OF COKPORATIONS . 
 
 designed, and do tend, to protect some public or private 
 right from the injurious act of the railroad company. And 
 the most complete legislation of this kind is that which 
 provides for the general supervision of the railroads by- 
 commissioners, appointed by the State, and given full 
 power to make inspection of the working and management 
 of the roads. The constitutionality of this State super- 
 vision cannot well be doubted. " Our whole system of 
 legislative supervision through the railroad commissioners 
 acting as a State police over railroads, is founded upon the 
 theory that the public duties devolved upon railroad cor- 
 porations by their charter are ministerial, and, therefore, 
 liable to be thus enforced." ^ 
 
 1 Bailroad Commissioners e. Portland, etc., R. R. Co., 63 Me. 269 (18 
 Am. Rep. 208) . 
 
 § 194 
 
CHAPTER XVI. 
 
 THE LOCATION OF POLICE POWER IN THE FEDERAL SYSTEM OF 
 GOVERNMENT. 
 
 ;Sbction 200. The United States government one of enumerated powers. 
 
 201. Police power generally resides in the States. 
 
 202. Regulations affecting interstate commerce. 
 
 203. Police control of navigable streams. 
 
 204. Police regulation of harbors Pilotage laws. 
 
 205. Regulation of weights and measures. 
 
 206. Counterfeiting of coins and currencies. 
 
 207. Regulation of the sale of patented articles. 
 
 208. War and rebellion. 
 
 209. Regulation of the militia. 
 
 210. Taxation. 
 
 211. Regulation of offenses against the laws of nations. 
 
 212. The exercise of police power by municipal corporations. 
 
 § 200 . The United States government one of enumerated 
 powers. — Very frequentlj^, during the first century of our 
 national existence, the government of the United States has 
 assumed powers, which were highly essential to the promo- 
 tion (<f the general welfare, but which were not expressly 
 delegated to the Federal government. The exercise of such 
 powers has always met with the vehement objection of the 
 party in opposition (although each of the great national 
 parties has in turn exercised such questionable powers, when- 
 ever public necessities or party interest seemed to require it) ; 
 the objection being that the constitution did not authorize 
 the exercise of the power, since there was no delegation of it 
 by the cotistitution. Popular opinion, concerning the funda- 
 mental character of the Federal government, was formu- 
 lated in the adoption of the tenth amendment to the 
 constitution, which provides that "the powers, not dele- 
 gated to the United States by the constitution, nor pro- 
 hibited by it to the States, are reserved to the States 
 
 (603) § 200 
 
604 LOCATION OF POLICE POWER IN THE FEDERAL SYSTEM. 
 
 respectively or to the people." Relying upon this amend- 
 ment as the authority for it, it has become the universally 
 recognized rule of constitutional construction that, adopt- 
 ing the language of an eminent writer on constitutional law, 
 "the government of the United States is one of enumer- 
 ated powers, the national constitution being the instrument 
 which specifies, and in which the authority should be found 
 for the exercise of, any power which the national govern- 
 ment assumes to possess. In this respect it differs from 
 the constitutions of the several States, which are not grants 
 of powers to the States, but which apportion and impose 
 restrictions upon the powers which the States inherently 
 possess." ' 
 
 The so-called " strict constructionists " have maintained 
 that the United States can exercise no power but what is 
 expressly granted by the constitution. But this rule was 
 at times applied so rigidly by the party in opposition , when- 
 ever it was desirable to prevent the enactment of an ob- 
 noxious law, that the right was denied to the United States to 
 exercise even those powers which, although not expressly 
 delegated, were so necessary to the effectuation of the ex- 
 press powers, that it cannot be supposed that the framers 
 of the constitution did not intend to grant them. In 
 numerous instances, the question of constitutional construc- 
 tion has been brought for settlement before the Supreme 
 Court of the United States ; and it is now firmly settled, 
 that the Federal government can exercise, not only the 
 powers which are expressly granted, but also those powers, 
 the grant of which can be fairly implied from the necessity 
 of assuming them, in order to give effect to the express 
 
 I Cooley Const. Lim. 10, 11. See also, to the same effect, Marshall, 
 Ch. J., in Gibbons v. Ogden, 9 Wheat. 1 ; Story, J., in Martin v. Hunter's 
 Lessee, 1 Wheat. 304, 326; Waite, Ch. J., in United States v. Cruikshanks, 
 92 U. S. 542; Calder v. Bull, 3 Ball. 386; Trade-mark Cases, 100 U. S. 82; 
 Briscoe v. Bank of Kentucky, 11 Pet. 257; Gilman v. Philadelphia, 3 Wall. 
 713; and numerous judicial utterances of the same import in the State 
 reports. 
 
 § 200 
 
THE U. S. GOVERNMENT ONE OF ENUMERATED POWERS. 605 
 
 grant of powers. " The government of the United States 
 can claim no powers which are not granted to it by the con- 
 stitution ; and the powers actually granted must be such as 
 are expressly given, or given by necessary implication." ^ 
 
 This doctrine of implied powers gave to the Federal con- 
 stitution that elasticity of application, without which the 
 permanency of the Federal government would have been 
 seriously endangered." But at the same time it produced 
 the very evil, in a greater or less degree, the fear of which 
 urged the strict constructionists to oppose its adoption, 
 viz. : that it would open the way to the most strained con- 
 struction of express grants of power, in order to justify the 
 €xercise of powers that could not be fairly implied from 
 the express grants. Indeed, the country has often been 
 presented with the spectacle of United States judges and 
 legislators, engaged in justifying questionable but neces- 
 sary assumptions of power by the general government, by 
 laboriously twisting, turning and straining the plain literal 
 meaning of the constitutional provisions, seeking to bring 
 the powers in question within the operation of some express 
 grant of power. For illustration 1 will refer only to two 
 extreme cases, the Louisiana purchase, and the issue of 
 treasury notes with the character of legal tender. 
 
 In the case of the Louisiana purchase, the exercise of the 
 questionable power was so plainly beneficial to the whole 
 country, that it was generally acqucesced in. But the claim 
 
 I Story, J., in Martin v. Hunter's Lessee, 1 Wheat. 304, 326; Ch. J. 
 Marshall in Gibbon «. Ogden, 9 Wheat. 1, 187, and other cases cited supra. 
 
 ' " While the principles of the constitution should be preserved with a 
 most guarded caution, it is at once the dictate of wisdom and enlightened 
 patriotism to avoid that narrowness of interpretation, which would dry 
 up all its vital powers, or compel the government [as was done under 
 the confederation], to break down all constitutional barriers, and trust 
 for its vindication to the people, upon the dangerous political maxim, 
 that the safety of the people is the supreme law (^saluspopulisupremalex); 
 a maxim which might be used to justify the appointment of a dictator, or 
 any other usurpation." Story on Constitution, § 1292. 
 
 § 200 
 
606 LOCATION OF POLICE POWER IN THE FEDEKAL SYSTEM. 
 
 of an express or implied power to make the purchase was so 
 palpably untenable, that the transaction has been tacitly ad- 
 mitted to have been an actual but necessary violation of the 
 constitution. Even Mr. Jefferson, to whom the credit of 
 effecting the purchase of Louisiana was justly and chiefly 
 due, was of the opinion that there was no warrant in the 
 constitution for the exercise of such a power, and recom- 
 mended the adoption of an amendment to the constitution, 
 authorizing its purchase. In speaking of the objections, 
 that were urged against the project, Judge Story says : 
 " The friends of the measure were driven to the adop- 
 tion of the doctrine that the right to acquire territory 
 was incident to national sovereignty; that it was a resulting 
 power, growing necessarily out of the aggregate power 
 confided by the Federal constitution, that the appropriation 
 might justly be vindicated upon this ground, and also upon 
 the ground that it was for the defense and general wel- 
 fare." 1 
 
 An equally remarkable case of a strained construction of 
 constitutional provisions is the exercise by Congress of the 
 power to make the United States treasury notes legal ten- 
 der in payment of all debts, public and private. The 
 exercise of this power is not so plainly beneficial ; on the con- 
 trary it has been considered by many able publicists to be 
 both an injurious and a wrongful interference with the pri- 
 vate rights of the individual.^ For this reason, the assump- 
 tion of the power by the national government has not met 
 with a general acquiescence ; and the constitutionality of the 
 acts of Congress, which declared the treasury notes to be 
 legal tender, has been questioned in numerous cases, most of 
 which have found their way by appeal to the Supreme 
 Court of the United States. In Hepburn v. Griswold,' the 
 
 ' Story on Constitution, § 1286. 
 
 * See ante, § 90, for a full discussion of power of the United States 
 Government to make its treasury notes legal tender in paymenta of debts. 
 3 8 Wall. 603. 
 § 200 
 
THE U. S. GOVEENMENT ONE OP ENUMERATED POWERS. 607 
 
 acts of Congress of 1862 and 1863 were declared to be un- 
 constitutional, so far as they make the treasury notes of the 
 United States legal tender in the payment of pre-existing 
 debts. In the Legal Tender Cases,^ the opinion of the 
 court in Hepburn v. Griswold was overruled, and the acts of 
 1862 and 1863 were declared to be unconstitutional in mak- 
 ing treasury notes legal tender, whether they applied to 
 existing debts, or those which were created after the enact- 
 ment of these statutes, the burden of the opinion being that 
 Congress has the right, as a war measure, to give to these 
 notes the character of legal tender. In 1878, Congress 
 passed an act, providing for the reissue of the treasury notes, 
 and declared them to be legal tender in payment of all 
 debts. In a case, arising under the act of 1878, the Su- 
 preme Court has finally affirmed the opinion announced in 
 12 Wallace, and held further that, the power of the gov- 
 ernment to make the treasury notes legal tender, when the 
 public exigencies required it, being admitted, it becomes a 
 question of legislative discretion, when the public welfare 
 demands the exercise of the power. ^ A perusal of these 
 cases will disclose the fact that the members of the court 
 and the attorneys in the causes, have not referred to the 
 same constitutional provisions for the authority to make the 
 treasury notes legal tender. Some have claimed it to be a 
 power, implied from the power to levy and carry on war; 
 some refer it to the power to borrow money, while others 
 claim it may be implied from the grant of power to coin 
 money and regulate the value of it. It will not be neces- 
 sary for the present purpose to demonstrate that this power 
 is not a fair implication from the express powers mentioned. 
 A careful reading of all the opinions in the cases referred 
 to will at least throw the matter into hopeless doubt and 
 uncertainty, if it does not convince the reader that in 
 
 1 13 Wall. 457. 
 
 ' JuiUard «. Greenman, 110 U. S. 421. 
 
 § 200 
 
608 LOCATION OF POLICE POWER IN THE FBDEEAL SYSTEM. 
 
 assuming this position, violence has been done by the court 
 to the plain literal meaning of the words. There are only 
 too many cases, in which forced construction has been re- 
 sorted to, in order to justify the exercise of powers which 
 are deemed necessary by public opinion. No change in the 
 rules of construction will prevent altogether the tendency to 
 strain and force the literal meaning of the written constitu- 
 tion, in order to bring it into conformity with that unwrit- 
 ten constitution, which is the real constitution, and which is 
 slowly but steadily changing under the pressure of popular 
 opinion and public necessities, checked only by the popular 
 reverence for the written word of the constitution. But all 
 justification for this violent construction can be removed 
 by correcting a most surprising error in constitutional con- 
 struction, an error which has produced an anomaly in 
 constitutional law. 
 
 A stable and enduring government can not be so con- 
 structed, that no branch of it can exercise a given power, 
 unless it is granted by the constitution, expressly or by neces- 
 sary implication. A government, as a totality, may properly 
 be compared to a general agent, who does not require any 
 specific delegation of power, in order to do an act, pro- 
 vided it falls within the scope of the agent's general author- 
 ity. A government, like a general agent, may have ex- 
 press restrictions or limitations imposed upon the general 
 powers. But in the absence of a prohibition, the right to 
 exercise a given power, which falls within the legitimate 
 scope of governmental authority, must be vested in some 
 branch of the government. 
 
 Referring to the Federal system, it is claimed, in the as- 
 sertion of this principle, that either the general government 
 or tiie several State governments may exercise such a power, 
 unless its exercise is prohibited to both by the Federal con- 
 stitution. I do not mean to say that constitutional conven- 
 tions never attempt to lay down a different rule. On the 
 contrary, if the great men, who have contributed to the 
 § 200 
 
THE U. S. GOVERNMENT ONE OF ENUMERATED POWERS. 609 
 
 l)uilding up of American constitutional law, have been free 
 from error in their construction of the tenth amendment to 
 the Federal constitution, the adoption of that amendment 
 was an attempt to do this impossible thing ; and the attempt 
 has resulted in repeated violations of the constitution, as con- 
 strued by them, by the assumption by Congress of powers, 
 which were not expressly delegated nor fairly implied. The 
 Louisiana purchase and the Legal Tender Cases, already re- 
 ferred to, furnish sufficient illustration of the truth of the 
 statement. Cases of the same character will surely arise 
 from time to time, and each repetition will diminish the 
 popular reverence for the written constitution ; an evil which 
 -every earnest jurist would like to prevent. The difficulty 
 lies in the interpretation and construction of the tenth 
 amendment. , 
 
 According to the prevailing interpretation of that amend- 
 ment, in order that the United States may by treaty make 
 -a purchase of foreign territory, or declare by act of 
 Oongress that the treasury notes shall be legal tender 
 in payment of all public and private debts, the power 
 must be granted by the constitution. It is clear that 
 the State governments cannot exercise these powers, for 
 the exercise of them is expressly prohibited to the States- 
 But if it can be shown that this interpretation of the tenth 
 amendment is erroneous, — unless the common law maxim, 
 •communis error facit jus is recognized as binding in this case, — 
 it must be conceded that the United States may exercise 
 these and other like powers, although they are not expressly 
 or impliedly granted.^ There is no reason why the real 
 meaning of that amendment should not be given effect, in 
 construing the constitutionality of such acts. For no rule 
 
 ^ It must not be understood from what is said that the writer recog- 
 nizes in the national government the power to make its treasury notes 
 legal tender. On the contrary, the power is denied to both State and 
 Federaligovemment on the ground that the Federal constitutioQ expressly 
 prohibits to both the exercise of the power. See ante, § 90. 
 
 39 § 200 
 
610 LOCATION OF POLICE POWER IN THE FEDERAL SYSTEM. 
 
 of construction is binding upon the courts and other depart- 
 ments of the government, which does not rest for its author- 
 ity upon some provision of the written constitution.^ The 
 tenth amendment reads as follows: "The powers, not 
 delegated to the United States by the constitution, nor prohib- 
 ited by it to the States, are reserved to the states respec- 
 tively, or to the people." It is clear that, if a given power 
 is not prohibited to the States, the general government can- 
 not exercise it, unless there is an express delegation of the 
 power. The amendment declares that such powers are re- 
 served to the States or to the people. But if a given power 
 is prohibited to the States, but not delegated to the United 
 States (the right to make purchase of foreign territory, for 
 example), can it be said that under this amendment the ex- 
 ercise of this power is reserved to the States? The very 
 prohibition to the States in the Federal constitution forbids 
 such a construction. It may be claimed that in such a case 
 the power would be reserved *' to the people." But that 
 claim cannot be sustained. The reservation of the powers 
 (referred to in this amendment), in the alternative, " to 
 the States respectively or to the people," evidently involves a 
 consideration of the possibility that the State constitutions 
 may prohibit to the States the exercise of the power that is 
 reserved, and in that case the power would be reserved to the 
 people. What powers " are reserved to the States respect- 
 ively, or to the people?" The answer is, those powers 
 which are " not {neither) delegated by the constitution to the 
 United States, nor prohibited by it to the States." These 
 
 ^ " A3 men whose Intentions require no concealment generally employ 
 the words which most directly and aptly express the idea they intend to 
 convey, the enlightened patriots who framed our constitution, and the peo- 
 ple who adopted it, must be understood to have employed words in their 
 natural sense, and to have intended what they have said. » * * We 
 know of no rule for construing the extent of such powers, other than is 
 given by the language of the instrument which confers them, taken in con- 
 nection with the purposes for which they were conferred." Chief Justice 
 Marshall in Gibbons v. Ogden, 9 Wheat, 1. 
 § 200 
 
THE U. S, GOVERNMENT ONE OF ENUMERATED POWERS. 611 
 
 two clauses, which contaia the exceptions to the operation 
 of the amendment, are not in the^alternative. In order that 
 it may be claimed under this amendment that a power is 
 «« reserved to the States respectively or to the people," it 
 must avoid both exceptions, i. e., it must be a power which 
 is neither delegated to the United States, nor prohibited to 
 the States. It cannot be successfully claimed that a power 
 is reserved under this provision, which is prohibited by the 
 Federal constitution to the States, for the reason that it is 
 not delegated to the United States. The conclusion, there- 
 fore, is that the United States government is one of enu- 
 merated powers, so far that it cannot exercise any power 
 which is not prohibited by the constitution to the States, 
 unless it is expressely or impliedly delegated to the United 
 States. But those powers, which are prohibited to the 
 States, and which fall legitimately within the scope of gov- 
 ernmental authority, may be exercised by the United States, 
 unless they are also prohibited to the United States. There 
 need not be any express or implied grant of such powers to 
 the national government. 
 
 It is not pretended or claimed that the construction of 
 the tenth amendment here advocated conforms more nearly 
 to the intentions of the framers of the constitution than that 
 which has generally been accepted by writers upon the con- 
 stitutional law of the country. Indeed, the early history 
 of the United States reveals forces of disintegration in the 
 politics of that day, equal or almost equal to the forces of 
 consolidation, which would incline one to suppose that the 
 intentious of the law-makers in the formation of the consti- 
 tution were embodied in that construction of constitutional 
 provisions which would most effectus^lly hamper and curtail 
 the powers of the national government. The great struggle 
 of the wise men of those days was to secure for the Federal 
 government the delegation of sufficient power to establish 
 an independent government, and it may be said with truth 
 that the Federal constitution was wrested from an unwilling 
 
 § 200 
 
612 LOCATION OF POLICE POWEK IN THE PEDEEAL SYSTEM. 
 
 people. It would, therefore, be impossible to show that the 
 construction of the tenth amendment here advocated was in 
 conformity with the intentions and expectations of those 
 whose votes enacted the amendment. It is freely admitted 
 that the prevailing construction is without doubt what the 
 framers of the amendment intended. But the intentions of 
 our ancestors can not be permitted to control the present 
 activity of the government, where they have not been em- 
 bodied in the written word of the constitution. Where the 
 written word is equally susceptible of two constructions, one 
 of which reflects more accurately the intention of the writer, 
 the preference is given to that construction. But when this 
 construction is discovered by the practical experience of a 
 century to be pernicious to the stability of the government 
 and ill violation of the soundest principles of constitutional 
 law ; when the alternative construction is grammatically 
 the only possible one, and relieves the constitutional law of 
 the country of a serious embarrassment, it is but reasonable 
 that the latter construction should be adopted, and its 
 adoption would not violate any known rule of constitutional 
 construction. 
 
 § 201. Police power generally resides in the States. — 
 
 But this discussion concerning the true construction of the 
 tenth amendment of the United States constitution only 
 afl^ects the location of those phases of police power, which 
 are denied by the constitution to the States, and which are 
 neither granted nor prohibited to the United States, as in 
 the case of making anything else besides gold and silver 
 legal tender in the payment of private and public debts, or 
 in the purchase of foreign territory, and the like; and the 
 question in such cases is not, whether the power to do these 
 things resides in the Federal or State government, but 
 whether the power can be exercised at all. In all ordinary 
 cases of police powers, the meaning and legal effect of the 
 tenth amendment is clear, viz. : that unless the exercise of 
 § 201 
 
POLICE POWEK GENERALLY BESIDES IN THE STATE. 613 
 
 a particular police power is granted by the United States 
 government, expressly or by necessary implication, the 
 power resides in the State government, and may be exer- 
 cised by it, unless the State constitution prohibits its exer- 
 cise. It may, therefore, be stated, as a general proposition 
 that with the few exceptions, which are mentioned in the 
 succeeding sections, the police power in the United States 
 is located in the States. The State is intrusted with the duty 
 of enacting and maintaining all those internal regulations 
 which are necessary for the preservation and the prevention 
 of injury to the rights of others. The United States gov- 
 ernment cannot exercise this power, except in those cases 
 in which the power of regulation is granted to the general 
 government, expressly or by necessary implication. For 
 example, it was held unconstitutional for Congress to de- 
 clare it to be a misdemeanor for any one to mix naptha and 
 illuminating oils, and offer the adulterated article for sale, 
 or to prohibit the sale of petroleum that is inflammable at a 
 less than the given temperature. This was a police regulation 
 that could only be established by the States.^ So, also, it 
 has been held to be unconstitutional for Congress to under- 
 take to regulate the equal rights of citizens to make use of 
 the public conveyances, hotels and places of amusement. 
 In order to give full effect to the fourteenth amendment, 
 which prohibited the States from passing or enforcing any 
 law, which denied to any person within its jurisdiction the 
 equal protection of the laws. Congress passed an act which 
 declared that all persons within the jurisdiction of the United 
 States shall be entitled to the full and equal enjoyment of 
 the accommodations, advantages, facilities and privileges 
 of inns, public conveyances on land and water, theaters 
 and other places of public amusement, subject only to the 
 conditions and limitations established by law, and applica- 
 
 1 TjQited States v. De Witt, 9 Wall. 41; Patterson v. Commonwealth, 
 11 Bush, 311 ; s. o. 97 U. S. 501. 
 
 § 201 
 
6 14 LOCATION OF POLICE POWER IN THE FEDERAL SYSTEM. 
 
 ble alike to the citizens of every race and color, regardless 
 of any previous condition of servitude.^ The ordinary po- 
 lice regulation of employments and professions is most 
 certainly within the powers of the State governments. In- 
 dependently of the fourteenth amendment to the national 
 constitution, it would not be within the power of Congress 
 to enact a law, which provided for the compulsory forma- 
 tion of business relations, for such regulations fall within 
 the ordinary police power of the State. The fourteenth 
 amendment merely prohibits a State from passing or en- 
 forcing any law, which denied to any person equality 
 before the law. If a State should not deem it proper to 
 provide that the hotels of the State shall be open for the 
 reception and entertainment of all persons who may apply, 
 Congress cannot supply the deficiency by any enactment of 
 its own, for in such a case there has been no violation of the 
 fourteenth amendment. The amendment is violated only 
 when the States attempt by legislation to establish an inequal- 
 ity in respect to the enjoyment of any rights or privileges. 
 It has, therefore, been held by the United States Supreme 
 Court that the civil rights bill, the act of 1875 just men- 
 tioned, is unconstitutional because it invades the police 
 jurisdiction of the States.^ 
 
 § 202. Begrnlations affecting interstate commerce. ; — 
 
 In article I., section 8, clause 3 of the United States consti- 
 tution, it is provided that Congress shall have power "to reg- 
 ulate commerce with foreign nations, and among the several 
 States, and with the Indian tribes." In conformity with 
 this constitutional provision it has been held that whenever 
 Congress exercises this form of regulation over foreign and 
 interstate commerce, State regulations must invariably 
 give way, and the regulations by Congress of commerce 
 
 ' Laws of 1875, ch. 114. 
 
 2 Civil Eight's Cases, 109 U. S. 3. See Ex parte Yarborongh, 110 U. S. 
 651. 
 
 § 202 
 
REGULATIONS AFFECTING INTERSTATE COMMERCE. 615 
 
 may descend to the minutest details, providing regulations 
 of the most local character in the exercise of this power. 
 But in the absence of congressional regulations, the State 
 may institute the ordinary reasonable police regulations in 
 aid of commerce. Thus it is lawful for a State to provide 
 for the inspection of tobacco, which is intended to be ship- 
 ped to some point outside of the State, it being an ordinary 
 police regulation, not designed to interfere with commerce 
 but to facilitate the detection of fraud in the sale of 
 this article.^ So, also, in the exercise of its police power, 
 may the State exact a license fee from all non-resident 
 salesmen or merchants, who are engaged in interstate com- 
 merce.^ But under the guise of a police regulation, the 
 exports and imports cannot be subjected to a State tax.' 
 Any attempt, therefore, of a State to lay such a tax, will 
 be void.* If the business in question contains an element 
 of danger to the public, it may be subjected to regulations 
 designed to protect the public against injury; it may be 
 made subject to inspection, and a license fee may be exacted 
 in aid of its inspection laws. That is an ordinary police 
 regulation. But where a license is exacted of importers or 
 exporters as a source of revenue, the license is a tax, and 
 consequently is laid in violation of the constitution of the 
 United States.* But exports and imports are free from 
 
 1 Turner v. Maryland, 107 U. S. 38. 
 
 2 Ward V. State, 31 Md. 279 ; a. c. 12 Wall. 418 ; Speer v. Commonwealth, 
 23 Gratt. 935 (14 Am. Rep. 164) ; Ex parte Robinson, 12 Nev. 263 (28 Am. 
 Eep. 794). But where there is a discrimination made by the license law 
 between resident and non-resident salesmen or merchants, the require- 
 ment of a license is unconstitutional. Walling v. Michigan, 116 U. S. 446 ; 
 Van Buren v. Downing, 41 Wis. 122; Marshalltown v. Blum, 68 Iowa, 184 
 <43 Am. Rep. 116) ; State v. McGinnlss, 37 Ark. 362 ; In re Watson, 15 
 Fed. Eep. 511. 
 
 ' The imposition of a State tax on exports and imports is prohibited 
 by art. I., § 10 of United States Constitution. 
 
 * Nathan v. State, 8 How. 73 ; Commonwealth v. Erie Ry Co., 62 Pa. 
 St. 286 (1 Am. "Rep. 399), reversed in 15 Wall. 232. 
 
 5 State V. North, 27 Mo. 464; Brown v. Maryland, 12 Wheat. 419. 
 
 § 202 
 
616 LOCATION OF POLICE POWER IN THE FBDEEAL St8TEM. 
 
 taxation by the State only so long as they are found in that 
 character. Before the article has become an export, or 
 after the original package of the import has been broken 
 and the article is offered for trade within the State, -it may 
 be subjected to taxation by the State, in common with, 
 . other property from which it cannot then be distinguished.*^ 
 But the police regulation of foreign and interstate com- 
 merce by the State, in the absence of like regulations on 
 the part of the general government, must be confined to 
 those local regulations which, while they interfere with 
 commerce more or less materially, may be enforced without 
 giving to the State authorities an extra-territorial power of 
 control over the commerce of the country. For this reason 
 and perhaps for others, the State laws which undertake ta 
 regulate the rates of fare and freight of railroads, are held 
 to be unconstitutional, so far as they are made to apply to the 
 interstate traffic of the railroad. To regulate the rates of 
 fare and freight of railroads, charged by a railroad for trans- 
 portation from one State into another is an unconstitutional 
 interference with the national power of control over com- 
 merce.^ So, also, is it impossible for a State, in regulating 
 the time and manner of making transfers of subjects of 
 commerce, transported by railway carriage from one point 
 to another within the State to extend the application of ttie 
 regulation to freight that is being transported to some point 
 
 1 " No State can tax an export as such, except under the limitations 
 of the constitution. But before the article becomes an export, or after 
 it ceases to be an import, by being mingled with other property in the 
 States it is a subject of taxation by the State. A cotton broker may be 
 required to pay a tax on his business, or by way of license, although he 
 may bay and sell cotton for foreign exportation." Nathan v. State, S 
 How. 73. See, also, Brown v. Houston, 33 La. Ann. 843 (39 Am. Eep. 
 284 ; State v. North, 27 Mo. 464. 
 
 2 Kaiser v. 111. Cent. R. R. Co., 18 Fed. Rep. 151 ; s. c. 6 McCrary C. C. 
 496; Louisville, etc., R. R. Co. v. Tenn.R. R. Corars. 19 Fed. Rep. 679? 
 111. Cent. R. R. Co. v. Stone, 20 Fed. Rep. 468; Pac. Coast S. S. Co. v. 
 Cal.R. R.Comrs., 18 Fed. Rep. 10; Carton v. 111. Cent.R. R»Co., 59 Iowa» 
 148 (44 Am. Rep. 672) ; s. c. 22 Am. L;iw Reg. (n. 8.) 378, note. 
 
 § 202 
 
POLICE CONTEOL OF NAVIGABLE STREAMS. 617 
 
 beyond the State.^ On the other hand, it has been held in 
 Illinois to be constitutional for the State to prohibit unjust 
 discrimination in freight and passenger charges, and to ex- 
 tend the prohibition to interstate commerce." 
 
 § 203. Police control of navigable streams. — A navi- 
 gable stream is one of which the public generally may make 
 use in the interests of commerce and social intercourse. It 
 is a highway, like the street or public road, to which every 
 one has the right of access, and which every one may use 
 in any manner consistent with the equal enjoyment of 
 the stream by others. Any exclusive appropriation of the 
 stream,* or other interference with the ordinary use of the 
 stream, is a nuisance, which any one may abate, by the re- 
 moval of the obstructions to navigation, who may feel in- 
 commoded thereby.* 
 
 The determination of what makes a stream navigable, and 
 consequently public, is a question for the court. The leg- 
 islature cannot, by legislation, declare a stream navigable, 
 which in fact is not so, for that would in effect be a taking 
 of private property for a public use, which is only possible 
 in the exercise of the right of eminent domain, and upon 
 payment of compensation. s According to the English com- 
 
 1 Council Bluffs v. Kansas City, etc., B. R. Co., 45 Iowa, 338 (24 Am. 
 Eep. 773). 
 
 a People v. Wabash, St. L. & Pac. Ky, 104 111. 476 ; Wabash, St. L. & 
 Pac. Ey. V. People, 105 111. 231. 
 
 * Commonwealth v. Charlestown, I Pick. 180; Kean v. Stetson, 5 Pick. 
 492; Arnold o. Mundy, 6 N. J. 1; Bird?). Smith, 8 Watts, 434. 
 
 * Inhabitants of Arundel v. JMcCulloch, 10 Mass. 70; Salman ». Wolfe, 
 27 Tex. 78; State i). Moffett, 1 Greene (Iowa), 247. la Maine it has 
 beembeld to be a public right, when the streams are frozen over, to pass 
 over them on foot or in vehicles, which (;annot be interfered with, by 
 cutting and removing the ice, without special authority of the State. 
 French v. Camp, 18 Me. 433. 
 
 " Treats. Lord, 42 Me. 652; Morgan v. King, 18 Barb. 284; s.c. 35 N. 
 Y.454; Glover ». Powell, 10 N. J. Eq. 211 ; Baker ». Lewis, 33 Pa. St. 301; 
 Weise v. Smith, 3 Ore. 445. (8 Am. Rep. 621) ; American River Water Co. 
 V. Amsden, 6 Cal. 443. 
 
 § 203 
 
618 LOCATION OF POLICE POWER IN THE FEDERAL SYSTEM. 
 
 mon law, all streams were navigable in which the tide ebbed 
 and flowed.^ In England this is not the arbitrary rule, which 
 it would be, if applied without qualification to the streams 
 of this country. With the exception of the Thames, above 
 tide-water, there are no streams in England which are prac- 
 tically and actually navigable, except those in which the 
 tide ebbs and flows ; and there are no tide- water streams of 
 any importance, which are not actually navigable. But in 
 the United States the situation is altogether different. 
 Here, there are fresh-water streams which are navigable, 
 and tidal streams which are not navigable. The appli- 
 cation of the common-law rule, in its literal exactness, 
 to the streams of this country would, therefore, result 
 only in absurd conclusions. The courts of this country 
 have been discussing the problem for many years, and 
 have come to different conclusions on the various branches 
 or sub-divisions of the question. So far as the question con- 
 cerns the location of the title to the bed of the stream, it 
 need not be considered in this connection.^ Here, the 
 question relates to the right of the public to make use of 
 the stream, as a highway. In respect to this phase of the 
 question, the courts very uniformly repudiate the common- 
 law rule, in its literalness, and, seizing hold of the essence 
 of the rule, declare that every stream, which is sufficiently 
 deep and wide to float boats and rafts, used in the interests 
 of commerce and agriculture, is navigable, and the public 
 have a right to use it,* 
 
 1 Commonwealth v. Chapin, 5 Pick. 199; People v. Tibbetts, 19 N. T. 
 523; Lorman «. Benson, 8 Micb. 18. 
 
 ' A» to this branch of the question, see Tiedeman on Eeal Prop., § 
 835. 
 
 3 The Daniel Ball, 10 Wall. 557; The Montello, 20 Wall. 439; Spring d. 
 Eussell, 7 Me. 273; Brown v. Chadbourne, 31 Me. 9 ; In^aham v. Wilkin- 
 ^0D, 4 Pick. 268 ; Commonwealth v. Alger, 7 Ca»h. 53 ; Claremont v. Carl- 
 ton, 2 N. H. 369; Canal Comrs. v. People, 5 Wend. 423; People v. Piatt, 
 17 Johns. 195; Morgan v. King, 25 N. Y. 454; Palmer v. Mulligan, 3 
 Calnes, 315; Shrunk v. Schuylkill Co., 14 Serg. & E. 71 ; Catej v. Wadling- 
 § 203 
 
POLICE CONTROL OF NAVIUABLE STREAMS. 619 
 
 As a general proposition, the power to regulate the use 
 •of navigable rivers resides in the States, through which the 
 rivers flow. And the only constitutional limitation upon 
 the State's power of control, us against the United States 
 government, is that which arises by implication from the 
 express grant to Congress of the power to regulate foreign 
 and interstate commerce. Inasmuch as a large part of 
 this commerce is carried on by the use of the navigable 
 streams of the country, it has been uniformly held by the 
 courts, both Federal and State, that the Federal power to 
 regulate commerce includes the power to institute regula- 
 tions for the use and control of those streams which are 
 used in the prosecution of foreign and interstate com- 
 merce. But inasmuch as all streams may be used in the 
 carrying on of the domestic commerce, and serve other 
 local interests, the congressional power of control does not 
 exclude State regulation altogether. The power of the State 
 to regulate the streams, which may be used in interstate 
 commerce, is unaffected, as long as Congress does not ex- 
 ercise its power; and in any case the State regulations are 
 void only as far as they conflict with the regulations of 
 Congress.^ 
 
 -ton, 1 McCord, 580; Commissioners, etc., ©.Withers, 29 Mias. 21; Rhodes 
 -B. Otis, 33 Ala. 578; Elder v. Barues, 6 Humph. 358; Gavit v. Chamberg 
 •3 Ohio, 495 ; Blanchard v. Porter, 11 Ohio, 138 ; Depew o. Board of Comra., 
 etc., 5 Ind. 8; Board of Comrs. c.Pidge, 5 Ind. 13; Moore v. Sanborn, 2 
 Mich. 519 ; Borman ». Benson, 8 Mich. 18 ; Middleton v. Pritchard, 4 111. 
 ^60 ; McManus v. Carmichael, 3 Iowa, 1 ; Weise v. Smith, 3 Ore. 446 (8 
 Am.Eep. 621). 
 
 1 Cooley Const. Lim. 730; Wilson v. Black Bird Creek Marsh Co., 2 
 Pet. 245; Wheeling Bridge Case, 13 How. 518; s. c. 18 How. 421; Gil- 
 mau V. Puiladelphia, 3 Wall. 713; Withers v. Buckley, 20 How. 84; Gib- 
 bons V. Ogden, 9 Wheat. 1 ; Escanaba Company v. Chicago, 107 U. S. 678. 
 Under tbe power to regulate commerce. Congress may regulate sale, 
 mortgage, etc , of United States vessels engaged in interstate trade. 
 Shaw V. McCandless, 36 Miss. 296. As to how far State legislature may 
 auhorize condemnation of ships as unsea worthy by tribunals constituted 
 Toy State "authority, in absence of any general regulation made by Con- 
 gress, see Janney v. Columbus Ins. Co., 10 Wheat. 418. 
 
 § 203 
 
620 LOCATION OF POLICE POWER IN THE FEDERAL SYSTEM. 
 
 In the absence, therefore, of congressional legislation, 
 the State may regulate the conduct and management of 
 ships, their speed, etc., while making use of these watery- 
 highways; and the only other limitation upon the power of 
 the State, which may be suggested by a study of police 
 power ill general, is that the regulation must be reasonable 
 as tending to prevent an injurious use of the stream.* 
 Thus, in order to prevent damage to vessels from a loose 
 and careless floating of logs down the stream, the State 
 may provide by law that the logs shall be bound together 
 into rafts or enclosed in boats, and be placed under the 
 control and supervision of men, who are required to be 
 reasonably skilled in the management of rafts, and to be 
 actually in charge of them.^ In like manner are the fish- 
 eries in a navigable stream subject to the police regulation of 
 the State, Thus, it was held to be constitutional for a 
 State to forbid non-residents to catch fish for the manufac- 
 ture of manure and oil, in the navigable waters of the State.* 
 
 Where the United States government has issued coasting 
 licenses to vessels to engage in interstate commerce on 
 certain navigable streams, no State law can interfere with 
 the enjoyment of the license, by granting to one or more 
 persons the exclusive privilege of navigating the streams in 
 question.* But except so far as the stream may be used, or 
 is susceptible of use, in interstate or foreign commerce, it is 
 within the police power of the State to grant exclusive 
 rights to its use.' This right of granting exclusive privil- 
 
 1 See People v. Jenkins, 1 Hill, 469 ; People v. Roe, 1 Hill, 470. 
 
 « Craig V. Kline, 65 Pa. St. 399 (3 Am. Rep. 636) . See Harrigan ». 
 Conn. River Lumber Co., 129 Mass. 580 (37 Am. Rep. 387). 
 
 » Brothers ». Church, 14 R. I. 398 (51 Am. Rep. 410). See, generally. 
 People ». Reed, 47 Barb. 235; Phlpps ». State, 22 Md. 380; Gentile c. 
 State, 29 Ind. 409. 
 
 Gibbons v. Ogden, 9 Wheat. 1 ; Ogden v. Gibbons, 4 Johns. Ch. 160; 
 s. e. 17 Johns. 488; Steamboat Company v. Livingston, 3 Cow. 713. See 
 GUman v. Philadelphia, 3 Wall. 713; The Daniel Ball, 10 Wall. 557. 
 
 ' Veazie v. Moor, 14 How. 568. In this case, the stream over which 
 
 § 203 
 
POLICE CONTROL OP NAVIGABLE STREAMS. 621 
 
 eges in the use of a navigable stream is very commonly ex- 
 ercised in the creation of ferries, and the grant of exclusive 
 ferry privileges. The establishment of a ferry across a 
 navigable stream does not materially interfere with the 
 ordinary navigation of the stream ; and consequently the 
 power of the State to create and regulate ferries in no case 
 conflicts with the police control of Congress over navigable 
 streams, unless Congress should by actual legislation, in 
 the exercise of its power, supersede the subordinate State 
 control.^ Not only may the State grant an exclusive priv- 
 ilege to the navigation of a stream, but it may grant an ex- 
 clusive privilege to fish in the stream,* or to cut ice when 
 the river is frozen over. It is also a common exercise of 
 proprietary power, in South Carolina, for the State to grant 
 to corporations and individuals the exclusive right to dig 
 phosphate rocls in the beds of the navigable streams of the 
 State. 
 
 The State has also the power to improve the navigable 
 streams of the State, or to authorize private corporations 
 and individuals to make the improvements, and charge toll 
 of those who make use of the stream, as compensation for 
 the improvements. This is but a reasonable exercise of 
 pclice power, and the coasting licenses of the United 
 States government create no exemption from liability to 
 the regulation. All vessels may alike be required to pay 
 toll.s 
 
 the exclusive privilege extended was that part of the Penobscot Eiver, 
 which was intercepted from communication by boats with the sea by a 
 fall and several dams, and consequently was not susceptible of use in in- 
 terstate commerce. See, also. People v. Tibbetts, 19 N. Y. 523 ; Living- 
 ston V, Van Ingen, 9 Johns. 50; McReynolds v. Smallhouse, 8 Bush, 447. 
 1 Conway o. Taylor's Ex'r, 1 Black. 603; Fanning». Gregorie, 16 How. 
 524 ; Wiggins Ferry Co. v. East St. Louis, 107 IT. S. 365 ; Parker v. Metro- 
 politan, etc., E. R. Co., 109 Mass. 506; People v. Mayor, etc., of New York, 
 32 Barb. 102; Chilvers t>. People, 11 Mich. 43; Marshall v. Grimes, 41 
 Miss. 27. 
 
 " See Tinicum Fishing Co. v. Carter, 90 Pa. St. 85 (35 Am. Eep. 632.) 
 ' Thames Bank v. Lovell, 18 Conn. 500; Kellogg «. Union Co., 12 
 
 § 203 
 
622 LOCATION OF POLICE POWEK IN THE I'EDEEAL SYSTEM. 
 
 The State has also the power to authorize the construc- 
 tion of bridges across the navigable streams within its 
 border ; and if the stream is not one, that is or can be 
 used in foreign and inter-state commerce, the power of 
 the State to authorize its construction can in no case be 
 questioned, because the bridge will materially interfere with 
 the ordiuary navigation of the stream. 
 
 The legislative determination of the public needs cannot 
 in such a case be controlled by the judicial discretion.^ 
 The State may also license the construction of piers, ex- 
 tending into the current of the navigable stream ; and it 
 has been held that one is not entitled to damages for injury 
 to his fisheiy, resulting from the construction of the pier." 
 But in respect to the streams, which are subject to the con- 
 trol of Congress, because they are used in the conduct of 
 interstate commerce, the authority to construct a bridge 
 may be granted by Congress or the State legislature. 
 If Congress grants the authority, the interference of the 
 bridge with interstate commerce will constitute no objec- 
 tion to the legality of the structure, the determination of 
 Congress that it causes only a reasonable interference with 
 the navigation of the stream being conclusive, in the same 
 manner as a like determination of the State legislatures is, in 
 respect to bridges over streams not adapted for use in inter- 
 state commerce. But if the State legislature authorize the 
 construction of a bridge over a stream used in interstate 
 
 Conn. 6; Zimmerman v. Union Canal Co., 1 Watts & S. 346; Benja- 
 min V. Manistee, etc., Co., 42 Mich. 628 ; Nelson v. Sheboygan Nav. Co., 
 4 Mich. 7 (38 Am. Dec. 222) ; Wisconsin River Improvement Co. v. 
 Hanson, 43 Wis. 255 (28 Am. Eep. 642) ; McReynolds v. Smallhonse, 8 
 Bush, 447 ; Carondelet Canal, etc., Co. v. Parlser, 29 La. Ann. 430 (29 
 Am. Rep. 339). 
 
 1 Commonwealth v. Breed, i Pick. 460; Dover v. Portsmouth Brirlge, 
 17 N. H. 200; Depew v. Trustees of W. & E. Canal, 6 Ind. 8; Illinois, 
 etc., Co. V. Peoria Bridge, 28 111. 467; Chicago v. McGinn, 61 111. 266 (2: 
 Am. Rep. 295) . 
 
 2 Tinicum Fishing Co. v. Carter, 90 Pa. St. 85 (35 Am. Rep. 632). 
 
 § 203 
 
POLICE CONTROL OF NAVIGABLE STREAMS. 62S 
 
 commerce, — inasmuch as the interference with interstate 
 commerce by the State is only permissive, and secondary 
 to the primary control of Congress, — the judgment of the 
 legislature, that the bridge causes only a reasonable inter- 
 ference with navigation, which is justifiable by the increased 
 facilities for rapid transportation which the bridge affords, 
 is not conclusive, and the ultimate decision, in the absence 
 of congressional action, rests with the Federal courts, who 
 are deemed to have the power to pass upon the reasonable- 
 ness of the interference with navigation, and to cause the 
 bridge to be removed, if it is found to interfere materially 
 with the use of the stream in foreign or interstate com- 
 merce.^ 
 
 But, even after a bridge has been condemned by the court 
 because of its unreasonable interference with interstate 
 commerce. Congress may interpose in the exercise of its 
 power to regulate commerce, and declare the bridge to be 
 a lawful structure.* 
 
 These interferences with the general navigation of a 
 stream by the public do not constitute the limitation of the 
 State control of streams, which cannot be used for foreign 
 and interstate commerce. Congress has no control over 
 these streams, and it seems to be the universally recognized 
 rule that there is no limit to the power of the State to regu- 
 late their use. It is even held to be lawful to obstruct such 
 a stream by the erection of dams, even to the extent of pro- 
 hibiting navigation altogether. If the person who con- 
 structs the dam keeps within the authority given him he is 
 in no way responsible to those who may be damaged by the 
 obstruction.* 
 
 J Wheeling Bridge Case, 13 How. 618; Columbus Ins. Co. v. Peoria 
 Bridge Co., 6 McLean, 70; Columbus Ins. Co. v. Peoria Bridge Co., 6 
 McLean, 209; Jolly v. Terre Haute Drawbridge Co., 6 McLean, 237; 
 United States v. New Bedford Bridge, 1 W. & M. 401 • Commissioners of 
 St. Joseph Co. V. Pidge, 5 Ind. 13. 
 
 " Wheeling Bridge Case, 18 How. 421. 
 
 3 Wilson V. Black Bird Creek Marsh Co., 2 Pet. 245; Parker v. Cutlet 
 
 § 203 
 
624 LOCATION OF POLICE POWEB IN THE FEDERAL STSTEM. 
 
 § 204. Police regulation of harbors — Pilotage laws . — 
 
 Under the constitutional grant to the United States of the 
 power to regulate foreign and interstate commerce is in- 
 cluded, also, the power to regulate the harbors, and the 
 conduct and management of ships within the harbors. But 
 as long as Congress does not exercise this implied power, it 
 rests with the States to provide all those local regulations 
 of the use of harbors, which are aids to commerce rather 
 than restrictions or interferences, and which go far towards 
 eliminating the chances of injurious accidents which are 
 more or less present in the absence of police regulations. 
 Thus it is lawful for the State or municipal corporation to 
 prescribe when a vessel may lie in the harbor, how long she 
 may remain there, what light she must show at night, and 
 other similar regulations, without coming into conflict with 
 any law of Congress.^ So, also, may the State prescribe 
 quarantine laws for the detention of vessels on entering a 
 harbor, whenever for any reason the landing of the passen- 
 gers, or the discharge of the cargo, is likely to endanger the 
 health of the city." 
 
 Mill Dam Co., 21 Me. 353 ; People v. Vanderbilt, 28 N. Y. 396 ; Hlnchman 
 V. Patterson, etc., R. K. Co., 17 N. J. Eq. 75; Boush v. Walter, 10 Watts, 
 86; Zimmerman v. Union Canal Co., 1 Watts & S. 346; Brown o. Com- 
 monwealth, 3 Serg. & E. 273; Bailey v. Phila., etc., E. E. Co., 4 Harr. 
 389; Hogg v. ZanesvUle Co., 5 Ohio, 257; Depew v. Trustees of W. & E. 
 Canal Co., 5 Ind. 8; Neaderhouser v. State, 28 Ind. 257; Stoughton v. 
 State, 5 Wis. 291; Commissioners v. Withers, 29 Miss. 21; Eldridge v. 
 Cowell, 4 Cal. 80. 
 
 1 The James Gray v. The John Eraser, 21 How. 421. See Mobile v. 
 Kimball, 102 U. S. 691; Escanaba Company v. Chicago, 107 U. S. 678. 
 In Vanderbilt v. Adams, 7 Cow. 349, an act of the legislature of New York 
 was sustained as constitutional which authorized the harbormasters of 
 the city of New York to regulate the moorings and movements of all 
 ships and vessels in the current of East and North Eivers, and to remove 
 from the wharves such vessels as were not employed In discharging or 
 receiving freight, in order to make room for vessels waiting for an oppor- 
 tunity to come up to the wharf. 
 
 2 License Cases, 5 How. 504, 632 ; Eailroad Co. o. Husen, 95 U. S. 466. 
 In St. Louis V. McCoy, 18 Mo. 238, an ordinance of the city of St. Louis 
 
 § 204 
 
POLICE REGULATION OP HARBOKS PILOTAGE LAWS. 625 
 
 It is also lawful for a city, so far as the Federal authority 
 is concerned, to require the payment of a tax or license fee 
 from all boats coming into the harbor, or mooring at the 
 oity landings. The imposition of such a tax does not con- 
 stitute an interference with interstate commerce in the con- 
 stitutional sense.i But all charges laid by the local 
 authorities for the enjoyment of the facilities furnished to 
 vessels, must be so computed as not to constitute a tonnage 
 <luty. By the United States constitution, ^ the States are 
 prohibited from laying any tonnage of duty without the 
 consent of Congress. For example, the State board of 
 harbor commissioners for the port of Charleston, South 
 Carolina, under the authority given by the State to levy 
 fees and port charges to defray the expenses of the police 
 regulation of the harbor, imposed a scale of charges on ves- 
 sels entering the port according to the "length over all" 
 in feet. It was held by the Supreme Court of the State 
 that the charges were unlawful because they were a tonnage 
 duty.^ But on the other hand, it has been held by the 
 Supreme Court of the United States that the charge for the 
 use of the wharf is not unlawful, as being a tonnage duty, 
 because the amount of the fees is regulated according to 
 the tonnage of freight.* But the harbor charges must be 
 reasonable, and be imposed in consideration of any service 
 rendered, or benefit received. If the law provides for the 
 exaction of certain fees from all vessels entering the harbor, 
 
 was sustained which prescribed that boats coming from below Memphis, 
 and having had on board, at any time during the voyage, more than a 
 specified number of passengers, should remain in quarantine for a speci- 
 fied period. See, also, St. Louis v. Bo£9Dger, 18 Mo. 13. 
 
 ' Wiggins Ferry Co. v. East St. Louis, 107 U. S. 365; Wheeler, etc., 
 Transportation Co. v. City of Wheeling, 9 W. Va. 170 (27 Am. Eep. 552) ; 
 City of New Orleans v. Eclipse Towboat Co., 33 La. Ann. 647 (39 Am. 
 Eep. 279). 
 
 » Art. I., § 10, ch. 3. 
 
 8 Harbor Commissioners v. Pashley, 19 S. C. 315. See Inman Steam- 
 ship Co. V. Tinker, 94 U. S. 238. 
 
 * Packet Company v. Keokuk, 95 U. S. 80. 
 
 40 § 204 
 
626 LOCATION OF POLICE POWER IN THE FEDERAL SYSTEM. 
 
 whether any service is rendered to it or not, the law is un- 
 constitutional as being a restriction upon commerce. i 
 
 Another very important police regulation of commerce 
 consists in the pilotage laws. Every ordinary sailing mus- 
 ter is able to convey his vessel with safety in the open sea 
 to any part of the world. His general knowledge of the 
 science of navigation is a sulKcient guaranty of safety to all 
 on board. But a special knowledge of the shoals and cur- 
 rents of a harbor is necessary, in order that it may be en- 
 tered with safety, and for this reason, it is the universal 
 custom of all civilized nations to require that all vessels, io 
 entering a harbor, shall be in charge of a pilot, specially li- 
 censed by the State, or at least to provide such pilots for the 
 use of those who may desire their services under the power to 
 regulate commerce. Congress clearly possesses the right to 
 establish pilot regulations. But as long as Congress does not 
 assume this power, it is but reasonable to conclude that the 
 States may exercise the power, as they had done before the 
 formation of the present union. 
 
 In order to remove all doubt as to the power of the States 
 to establish pilot regulations, the first Congress passed this 
 act: — 
 
 " All pilots in the bays, inlets, rivers, harbors, and ports 
 of the United States shall continue to be regulated in con- 
 formity with the existing laws of the States respectively, 
 wherein such pilots may be, or with such laws as the States 
 may respectively hereafter enact for the purpose, until 
 further legislative provision shall be made by Congress."^ 
 
 Notwithstanding this statutory declaration, the State pilot- 
 age laws have frequently been attacked, for being an inva- 
 sion of the power of Congress, but they have been uniformly 
 sustained in the absence of regulations by Congress.^ It is 
 
 1 Webb V. Dunn, 18 Fla. 721. 
 
 « U. S. Rev. Stat. 4236. 
 
 » Cooley c. Wardens, 12 How. 299 ; Ex parte McNlell, 13 Wall. 236 ; the 
 
 § 204 
 
REGULATION OF WEIGHTS AND MEASURES. 627 
 
 lawful for the States to exact the payment of pilotage fees, 
 in whole or in part, by those owners or masters of vessels, 
 who decline the service of a pilot, for it is within the power 
 of the State to compel every vessel on entering a harbor of 
 the State, to accept the service of a licensed pilot.i Nor is 
 it any violation of the provisions of the constitution for a 
 State to discriminate in the amount of pilotage between ves- 
 sels in foreign commerce and those engaged in the coasting 
 trade.^ It has also been held lawful for a State to require 
 the masters of vessels bound to ports in that State to accept 
 the services of the first licensed pilot, who offers himself.' 
 The only regulation of pilots established by Congress, is 
 that contained in an act of Congress, passed in 1837, which 
 is as follows : — 
 
 " That it shall be lawful for the master or commander of 
 any vessel coming in or going out of any port situated 
 upon waters, which are the boundary between two States, to 
 employ any pilot duly licensed or authorized by the laws of 
 either of the States bounded on the said waters, to pilot said 
 vessel to or from said port ; any law, usage or custom to the 
 contrary notwithstanding."* 
 
 § 205. Re^ralation of weights and measures. — Con- 
 gress is given the power "to fix the standard of weights 
 and measures." " The grant of power excludes the like 
 power of the States, whenever Congress exercises the 
 power ; but until Congress does, there can be no constitu- 
 
 Panama, Deady 27; Ex parte Slebold, 100 U. S. 385; Wilson «. McNamee,, 
 102 U. S. 572; State©. Penny, 19 S. C. 218. 
 
 1 Cooley V. Wardens, 12 How. 299. 
 
 « Collins V. Relief Society, 73 Pa. St. 94. See Cooley v. Wardens, 12 
 How. 299. 
 
 » Thompson v. Spralgue, 69 Ga. 409 (47 Am. Rep. 760). 
 
 * V. S. Rev. Stat. 4236. See Henderson v. Spoflord, 69 N. Y. 131. 
 
 » U. S. Const., art. I., § 8, cl. 5. 
 
 § 205 
 
628 LOCATION OF POLICE POWER IN THE FEDERAL SYSTEM. 
 
 tional objection to the regulation of these subjects by the 
 States.i 
 
 § 206. Counterfeiting of coins and currency. — It is 
 
 also declared by the national constitution that Congress may 
 " provide for the punishment of counterfeiting the securi- 
 ties and current coin of the United States." * There is no 
 need of an express grant of this power, for it would be 
 necessarily implied from the grant of power to regulate the 
 coinage and currency of the United States.* But the 
 offense of counterfeiting is not only a crime against the 
 United States government, but is also a trespass upon the 
 rights of those who are induced to receive the counterfeit 
 coin. The punishment of the offense against the govern- 
 ment clearly comes within the jurisdiction of the United 
 States. But, in the absence of an express prohibition, it 
 would be competent for a State to punish counterfeiting, as 
 an offense against the individual.* Congress has lately 
 passed an act providing for the punishment of counterfeit- 
 ing the coins and currency of foreign nations, and a prose- 
 cution has been instituted in the United States court at St. 
 Louis, in a case in which a band of counterfeiters were 
 convicted of the crime of counterfeiting the currency of 
 Brazil. The constitutionality of the statute was attacked on 
 the ground that the power to punish the counterfeiting of 
 foreign coin was not granted by the constitution, nor could 
 it be implied from any express power ; but the validity of 
 the statute was sustained on the ground that the power to 
 enact it was included in the grant of the power to define and 
 punish " offenses against the law of nations." * There can 
 be no doubt of the correctness of this decision. When the 
 
 1 Weaver v. Fegely, 29 Pa. St. 27. 
 
 2 U. S. Const., art. I., § 8, cl. 6. 
 ' Story on Constitution, § 1123. 
 
 * Fox V. OMo, 5 How. 410. See United States v. Marigold, 9 How. 
 560; Moore v. Illinois, 14 How. 13. 
 ' U. S. Const., art. I., § 8, cl. 10. 
 § 206 
 
REGULATION OF THE SALE OF PATENTED ARTICLES. 629 
 
 wrong done to the individual by receiving a counterfeit bill 
 or coin is alone considered, it is clearly a subject for the 
 State police regulation, and cannot be considered a subject 
 for congressional legislation, whether the coin that is coun- 
 terfeited is foreign or domestic. But when the wrong to 
 the government, whose coin or currency is counterfeited, is 
 considered, the character of the offense is chano-ed. In- 
 stead of being a subject of internal police regulation, 
 exclusively, it constitutes a subject of international law. 
 It is an offense against the law of nations. And although 
 it might not be declared to be so by the existing code of 
 international law. Congress is given the power to define, as 
 well as punish, offenses against the law of nations, and it can 
 undoubtedly, in the exercise of this power, provide for 
 punishing the counterfeiting of foreign coin. The exercise 
 by Congress of this implied power will not exclude the 
 States from the exercise of their ordinary police power 
 over the offense against the individual wronged by the de- 
 ception. 
 
 § 207. Regulation of the sale of patented articles. — 
 
 The constitution of the United States contains also a pro- 
 vision,^ authorizing Congress to promote inventions by 
 providing for the issue of exclusive patent rights to invent- 
 ors. The power has been exercised, and the number of 
 patented articles offered for sale in the United States is 
 legion. In the exercise of the police power over trades and 
 professions, the States very frequently establish regulations, 
 which directly or indirectly interfere with or restrict the 
 sale of patented articles, and the constitutionality of such 
 regulations has often been questioned on that account. But 
 they have been generally sustained, if they were in other 
 respects free from constitutional objection. Thus, it was 
 held to be lawful to restrain the sale of adulterated provis- 
 
 1 U. S. Const., art. I.. § 8, cl. 8. 
 
 § 207 
 
630 LOCATION OF POLICE POWER IN THE FEDERAL STSTEM. 
 
 ions without a stamp, although the article sold was 
 patented. Congress cannot grant under the patent law the 
 right to practice deception in the sale of adulterated arti- 
 cles ; ^ and if the adulterated article is injurious when used in 
 the manner for which it was intended, the sale of it maybe 
 prohibited altogether.^ But, unless there is fraud or de- 
 ception in the manufacture of the patented article, it is 
 very probable that the State could not nullify the patent by 
 a prohibition of the sale of the patented article, on the 
 ground that its sale involves elements of danger to the 
 public. 
 
 Within this limitation, however, the sale of the patented 
 article is subject to reasonable regulation by the State. 
 For example, for the purpose of preventing fraudulent 
 practices in the sale of patent rights, it was provided by 
 statute in Indiana that vendors of patent rights shall file 
 with the county clerk an authenticated copy of the letters 
 patent, with an affidavit that they are genuine and have not 
 been revoked or annulled, and that the vendors have au- 
 thority to sell. The statute was sustained as not being in 
 violation of the rights of the patentee, nor an invasion of 
 the jurisdiction of Congress.* But a State law was declared 
 in Nebraska to be unconstitutional, which provided that no 
 one shall sell any patent right within the State until he has 
 first submitted his letters patent to a county judge and ob- 
 tained his approval.* It is also held to be constitutional for 
 a State to impose a license tax upon the sale of patented 
 articles by an ordinary trader, as for example, peddlers of 
 
 1 Palmer v. State, 39 Ohio St. 236 (48 Am. Kep. 429; . As to the gen- 
 eral right of the State to regulate the sale of patented articles, see 
 Jordan v. Overseers, 4 Ohio, 295; la re Brosnahan, 4 McCrary C. C. 1 (18 
 Fed. Eep. 62); Patterson v. Kentucky, 97 U. S. 501; Webber v. Virginia, 
 103 U. S. 844. 
 
 " Patterson v. Kentucky, 97 U. S. 601. 
 
 3 Brechbill v. Eandall, 102 Ind. 528 (52 Am. Eep. 695). 
 
 ' Welch ». Phelps, 14 Neb. 134. 
 
 § 207 
 
WAR AND REBELLION. 631 
 
 sewing machines.! But it seems to be considered uncon- 
 stitutional for a State to impose a license tax upon the sale 
 by the patentee of his patented article.' 
 
 § 208. War and rebellion. — It is provided by the con- 
 stitution that Congress shall have the power ' ' to declare 
 Tvar, to grant letters of marque and reprisal, and make 
 rules concerning captures on land and water." ^ We are 
 not concerned in this connection with the general war powers 
 of the government, except so far as the exercise of them bears 
 upon the citizens of the United States. Under the author- 
 ity "to grant letters of marque and reprisal, and make 
 rules concerning captures on land and water," it is held to 
 be a legitimate means of prosecuting war to seize and confis- 
 -cate the property of the enemy, and this right is also claimed 
 for the United States against its citizens who have engaged 
 in rebellion.* On the same grounds, it has been held to be 
 lawful as a war measure, to emancipate by proclamation 
 the slaves of those who are engaged in rebellion.* Congress 
 may also in the suppression of a rebellion establish mili- 
 tary tribunals for the trial of military offenses in those 
 sections of the country which constitute the seat of war, 
 and where in consequence civil law is superseded by mili- 
 tary law. But where the courts of the country are open 
 for the hearing of criminal offenses, and hostilities are not 
 in such close proximity as to prevent the courts from en- 
 forcing their decrees, the jurisdiction of the civil courts 
 •cannot be invaded by a military court.® 
 
 In further support of the war power of the United States, 
 
 1 Howe Machine Co. u. Gage, 100 U. S. 676. 
 ! State V. Butler, 3 Lea (Tenn.), 222. 
 3 U. S. Const., art. I., § 8, cl. 11. 
 
 * MiUer v. United States, 11 Wall. 268; Tyler v. Defrees, 11 Wall. 331; 
 The Grape Shot, 9 Wall. 129 ; The Prize Cases, 2 Black, 636. 
 
 'Slaybacko. CQshman,,12 Fla. 427; Weaver ». Lapsley, 42 Ala. 601 ; 
 Hall V. Keese, 31 Tex. 604; Dorris v. Grace, 24 Ark. 326. 
 Ex parte Malligan, 4 Wall, 2. 
 
 § 121 
 
632 LOCATION OF POLICE POWER IN THE FEDEEAL SYSTEM. 
 
 Congress is empowered to " raise and support armies." i 
 The manner of " raising " an army, the mode of enlistment, 
 must be determined by acts of Congress. As long as the 
 enlistments are voluntary, no constitutional question can 
 arise. Although it has been questioned whether the gov- 
 ernment could make forced enlistments, it cannot be 
 seriously doubted that Congress possesses this power, and 
 under the government of the Confederate States, whos& 
 constitution made a similar grant of power to the Confed- 
 erate Congress, it was held that the general government 
 possessed this power to compel citizens of the country to 
 perform military service in its armies, in time of war.^ 
 
 § 209. Begalation of the militia. — Congress is author- 
 ized to " provide for organizing, arming and disciplining the 
 militia, and for governing such part of them as may be 
 employed in the service of the United States, reserving to 
 the States respectively the appointment of the officers, and 
 the authority of training the militia according to the disci- 
 pline prescribed by Congress." * The actual control of the 
 militia is, therefore, reserved to the States, until the Presi- 
 dent of the United States has exercised the power, which 
 may be given him by Congress * to call the State militia into 
 the service of the Uinted States, when the niilitia becomes 
 for the time being a part of the United States army ; and 
 although the States may regulate the appointment of the 
 officers of the militia, not only are these officers subject to 
 the orders of the President, but are also subordinate to those 
 officers who may be placed by the President over them in 
 
 1 U. S. Const., art. I., § 8, cl. 12. 
 
 ' Barber ». Irwin, 34 Ga. 27; Ex parte Tate, 39 Ala. 254; Ex parte 
 Coupland, 26 Tex. 386. 
 
 » Const., art. I., § 8, cl. 16. 
 
 * Congress is authorized to " provide for calling forth the militia, to 
 execute the laws of the Union, suppress insurrections, and repel invas- 
 ions." TJ. S. Const., art. I., § 8, cl. 13. 
 
 § 209 
 
TAXATION. 633 
 
 general command of the army or of divisions of the army .1 
 And when the President, in pursuance of the authority of 
 Congress calls out the militia of the State, he may make his 
 requisition upon the Governor of the State, or directly upon 
 the militia officers. Any one refusing to obey this call, 
 subjects himself to punishment under the military laws.* 
 
 As already stated, the power to regulate aud control the 
 militia of the country is expressly reserved to the States ; 
 and hence it cannot be doubted that the power of main- 
 taining a mUitia was not intended to be included in the 
 prohibition by the constitution of the keeping of troops in 
 time of peace by the States." Not only is that true, but it 
 is competent for a State to make it unlawful for any body 
 of men, other than the regularly organized volunteer mili- 
 tia of the State, and the troops of the United States, with 
 an exception in favor of students in educational institutions 
 in which military instruction is given, to associate them- 
 selves together as a military company, or to drill or parade 
 with arms in any city or town of the State, without the 
 license of the Governor. Such a statute is not inconsistent 
 with any constitutional provision, and is a reasonable reg- 
 ulation in the interest of public order.* 
 
 § 210. Taxation. — The power of taxation may of course 
 be exercised by both the Federal and State govern- 
 ments. Neither could exercise the other powers vested in 
 it, without the authority to provide by taxation the means 
 of securing the execution of the laws. The constitution of 
 the United States expressly declares that "the Congress shall 
 have power to levy and collect taxes, duties, imposts and ex- 
 cises to pay the debts and provide for the common defense 
 and general welfare of the United States; but all duties, im- 
 
 1 See Kneedler v. Lane, 45 Pa. St. 238. 
 
 » Houston V. Moore, 6 Wheat. 1 ; Martin v. Mott, 12 Wheat. 19. 
 
 * U. S. Const., art. I, § 10, cl. 3; Luther v. Borden, 7 How. 1. 
 
 * Dunne v. People, 94 111. 120 (34 Am. Kep. 213J. 
 
 § 210 
 
634 LOCATION OF POLICE POWER IN THE FEDERAL SYSTEM. 
 
 posts and excises shall be uaiform throughout the United 
 States." i There are only two express limitations upon the 
 p«wer of Congress to levy a tax. One is to the effect that 
 " no tax or duty shall be laid on articles exported from 
 any State." ^ But it has been held that this provision of 
 the constitution is not violated by the regulation which re- 
 quired, as a precautionagainst fraud, that certain articles in- 
 tended for export shall be stamped. This is not a tax. It is 
 an ordinary police regulation.^ 
 
 It is also provided that " no capitation or direct tax shall 
 be laid, unless in proportion to the census or enumeration 
 hereinbefore directed to be taken." * But the term direct 
 taxes is used in the constitution in a peculiar sense and in- 
 cludes only capitation and land taxes.** 
 
 Congress is expressly authorized to impose a license tax 
 upon all trades, manufactures and other occupations. But 
 it is not in the exercise of the ordinary police power. The 
 ordinary police regulation of trades and professions falls 
 within the power of the States, and the United States can- 
 not determine what trades are injurious, and may therefore 
 be restrained by the imposition of a license. The license 
 fee, which the United States government may exact as a 
 condition precedent to the pursuit of any employment or 
 the manufacture and sale of any product, is a tax, and does 
 not operate directly as an ordinary police regulation. As 
 a measure for enforcing the payment of the license tax, no 
 doubt Congress may prohibit the prosecution of the trade, 
 if the tax is not paid ; and in order that illicit trade may be 
 detected, Congress may provide the most stringent regula- 
 
 1 U. S. Const., art. I, § 8, cL 1. 
 
 2 U. S. Const., art. I, § 9, cl. 5. 
 
 « Pace V. Burgess, 92 U. S. 372. 
 
 < U. S. Const., art. I, § 2; § 9, cl. 4. 
 
 * Hylton V. United States, 3 Dall. 171 ; Pac. Ins. Co. v. Sonle, 7 Wall. 
 ■133; Veazie Bank v. Fenno, 8 Wall. 533; Springer v. United States, 102 
 U. S. 586. 
 
 § 210 
 
TAXATION. 635 
 
 tions for the inspection of the premises of those who are 
 engaged in the trade in question, and require the goods 
 to be stamped, and the like. But these regulations are 
 only lawful as means devised for the collection of the tax, 
 and not as a police measure, designed to restrain the prose- 
 cution of the trade. If Congress declares that its purpose, 
 in exacting a license fee, was to lay a tax, or if there is no 
 •declared purpose, and the act of Congress falls fairly 
 within the power of Congress to impose a license tax, 
 the constitutionality of the act cannot be questioned on the 
 ground that it is a police regulation, designed to restrict or 
 suppress the objectionable trade or manufacture. The 
 general rule of constitutional construction applies, which 
 provides that when the language of a statute admits of two 
 ■constructions, one of which keeps the statute within the 
 constitutional limitations, and the other causes it to violate 
 them, the former construction is invariably adopted. Nor is 
 it possible to give the latter construction, in order to secure 
 an avoidance of the statute on the ground of unconstitu- 
 tionality, even though it is known beyond a reasonable doubt 
 from facts outside of the statute, that this construction will 
 conform more nearly with the real purpose of the legisla- 
 tors. An interesting case of this kind has lately occurred. 
 At the last meeting of Congress (1886), an act was passed, 
 laying a tax upon the- sale and manufacture of oleomargar- 
 ine, and providing a rigid system] of inspection and stamp- 
 ing of the goods. The law in form is a legitimate exercise 
 of the congressional power of taxation, and it may be true 
 that some of the members of Congress supported the meas- 
 ure for the purpose of raising revenue. But it can hardly 
 be doubted that the promoters and original advocates of the 
 bill intended it to operate as a restriction upon the sale of 
 oleomargarine in the dairy interests, and the raising of 
 revenue was to them a matter of secondary, if any, impor- 
 tance. But these occult intentions of the advocates of the 
 bill, even if they could be judicially established, could not 
 
 S 210 
 
636 LOCATION OF POLICE POWER IN THE FEDERAL SYSTEM. 
 
 affect the constitutionality of the law, as far as it does not 
 contain regulations not suitable as a means for securing a 
 proper collection of the tax.l Congress is not only unable 
 to prohibit or restrict the prosecution of a trade by the re- 
 quirement of a license, but it is also denied the power, by 
 granting a license, to authorize the prosecution of a trade,, 
 which is prohibited by the laws of the State. ^ 
 
 In the federal state, the independence of the Federal 
 and State governments of each other must be guaranteed 
 by the express or implied limitations of the constitution, in 
 order that the success of the system may be assured. And 
 to such an extent is this limitation upon the power of both, 
 considered necessary, that it has been held by the courts that 
 neither the United States nor the State can tax the agen- 
 cies of the government of the other. The State cannot lay 
 a tax upon the securities of the national government.^ Nor 
 
 ' See Veazle Bank v. Fenno, 8 Wall. 533 ; National Bank v. United 
 States, 101 U. S. 1. 
 
 2 License Tax Cases, 6 Wall. 462; Pervear v. Commonwealth, 5 Wall. 
 475; McGnire ». Commonwealth, 3 Wall. 387; Commonwealth u. Thorn- 
 ley, 6 Allen, — ; Commonwealth d. O'Donnell, 8 Allen, 548, Common- 
 wealth ». Holbrook, 10 Allen, 200; Block v. Jacksonville, 36 111. 301; 
 States. Carney, 20 Iowa, 82; State v. Stulz, 20 Iowa, 488; State v. 
 Baughman, 20 Iowa, 497. 
 
 ' ' ' That the power to tax Involves the power to destroy ; that the power 
 to destroy may defeat and render useless the power to create ; that there 
 is a plain repugnance in conferring on one government a power to con- 
 trol the constitutional measures of another, which other, with respect 
 to those measures, is declared to be supreme over that which exerts 
 the control, are propositions not to be denied." Marshall, Ch. J., in 
 McCulloch V. Maryland, 4 Wheat. 316, 413 ; Weston v. Charleston, 2 Pet. 
 449; Bank of Commerce v. New York City, 2 Black, 620; Bank Tax Case, 
 2 Wajl. 200 ; Society for Savings v. Coite, 6 Wall. 594 ; Van Allen v. Asses- 
 sors, 3 Wall. 573; People v. Commissioners, 4 Wall. 244; Bradley v. Peo- 
 ple, 4 Wall. 459 ; Banks v. The Mayor, 7 Wall. 16 ; Bank v. Supervisors, 
 7 Wall. 26. Revenue stamps are not taxable. Palfrey v. Boston, 101 
 Mass. 329. United States treasury notes are not taxable. Montgomery 
 Co. V. Elston, 32 Ind. 27. See People v. United States, 93 111. 30 ^34 Am. 
 Kep. 156), in which the power of the State to tax the property of the 
 United States held by private Individuals for any purpose, was denied. 
 See State v. Jackson, 33 N. J 450. 
 
 § 210 
 
TAXATION. 637 
 
 ■cau the United States lay a tax upon the securities and 
 other agencies of the State government.^ ''In respect 
 to the reserved powers, the State is as sovereign and inde- 
 pendent as the general government. And if the means 
 and instrumentalities employed by the government to carry 
 into operation the powers granted to it are necessarily, and 
 for the sake of self-preservation, exempt from taxation by 
 the States, why are not those of the States depending upon 
 their reserved powers, for like reasons, equally exempt 
 from Federal taxation? Their unimpaired existence in the 
 ■one case is as essential as in the other. It is admitted that 
 there is no ejcpress provision in the constitution that pro- 
 hibits the general government from taxing the means and 
 instrumentalities of the States, nor is there any prohibiting 
 the States from taxing the means and instrumentalities of 
 that government. In both cases the exemption rests upon 
 necessary implication, and is upheld by the great law of 
 self-preservation ; as any government, whose means em- 
 ployed in conducting its operations are subject to the con- 
 trol of another and distinct government, can only exist at 
 the mercy of that government, of what avail are these means 
 if another power may tax them at discretion ?" ^ For these 
 reasons it has been held that the State cannot tax the prop- 
 erty of a bank, or the bank itself, which has been estab- 
 lished by the United States government, as a governmental 
 agency, as was the old Bank of the United States, or the pres- 
 ent national banks.' So, also, has it been held incompetent 
 for a State to tax the salary of a United States official, or for 
 the United States to tax the salary of a State official .* On the 
 same ground, it has been held that the act of Congress, de- 
 
 J Collector v. Day, llWall. 113; Wardc. Maryland, 12 WaU. 418; Rail- 
 road Company t). Peaiston, 18 WaU. 5; Fifleld v. Close, 15 Mich. 505. 
 
 ' Nelson, J., In Collector o.Day, 11 Wall. 113, 124. 
 
 ' McCnUoch v. Maryiaed, 4 Wheas. 316 ; Osborn v. United States Bank, 
 9 Wheat. 738. See National Rank v. Commonwealth, 9 Wall. 353. 
 
 * Dobbins v. Commissioners of Erie Co., 16 Pet. 435; Collectors. Day, 
 H WaU. 113; Freedman v. Sigel, 10 Blatchf. 327. 
 
 § 210 
 
638 LOCATION OP POLICE POWER IN THE FEDERAL SYSTEM. 
 
 daring that papers used in judicial process, either as plead- 
 ings or as evidence, shall be invalid unless stamped, was 
 unconstitutional in its application to the State courts.^ 
 And it has likewise been held incompetent for the United 
 States to declare an ordinary contract or deed, which is 
 valid according to the State law, invalid because it has not 
 been stamped.^ 
 
 § 211. Regula'tion of ofCenses against the law pf na- 
 tions. — Congress is also given the power *' to define and 
 punish piracies and felonies committed on the high seas, 
 and offenses against the law of nations." Piracy is usually 
 defined to be the equivalent of robbery in law, being a forci- 
 ble deprivation of property upon the high seas.* But a rob- 
 bery at sea committed in a vessel sailing under the flag of 
 another nation and by one not a citizen of the United 
 States is not such a piracy, as may be punished in the courts^ 
 of the United States.* 
 
 § 212. The exercise of police power hy manicipal cor- 
 porations. — A large part of the police power of the State 
 is exercised by the local governments of municipal corpora- 
 
 1 Carpenter v. SnelUng, 97 Mass. 452 ; Green v. Holway, 101 Mass. 243 
 (3 Am. Bep. 339; ; Atkins v. Plimpton 44 Vt. 21 ; Griffin «. Banney, 35. 
 Conn. 239; People v. Gates, 43 N. Y. 40; Moore o. Moore 47 
 N. T. 467 (7 Am. Eep. 466) ; Hale v. Wilkinson 21 Gratt. 76 ; Haight 
 V. Grist, 64 TS. C. 739; Smith v. Short, 40 Ala. 385; Davis v. Richardson, 
 46 Miss. 499 (7 Am. Rep. 732) ; Bumpass v. Taggart, 26 Ark. 898- 
 (7 Am. Rep. 623) ; Union Bank v. Hill, 3 Cold. 326 ; Hunter v. Cobb,, 
 1 Bush, 239; Warren v. Paul, 22 Ind. 276; Craig ». Dimmock, 47 111. 308; 
 Jones V. Estates of Keep, 19 Wis. 369 ; Sammons v. HoUoway, 21 Mich. 
 162 (4 Am. Rep. 466); Burson o. Huntington, 21 Mich. 415 (4 Am. Rep. 
 497) ; DufEy v. Hobson, 40 Cal. 240. 
 
 ! Moore v. Quirk, 106 Mass. 49 (7 Am. Rijp. 499) ; Sayles v. Davis, 22 
 Wis. 226. 
 
 3 4 Bi. Com. 71-73; 1 Kent, 183. See United States v. Smith, 5 Wheat. 
 153 ; United States t>. Brig Malek Adhel, 2 How. 210. 
 
 * United States v. Palmer, 3 Wheat. 610; United States v. Kessler,. 
 Baldw. 15. 
 
 § 212 
 
POLICE POWER BY MUNICIPAL CORPORATIONS. 639' 
 
 tions, and the extent of their police power depends upon 
 the limitations of their charters. They are creatures of the 
 State, and the superior control of the State is almost with- 
 out limit. The police power of a municipal corporation 
 must depend upon the will of the legislature, and in order 
 that a city, town or county may exercise a particular police 
 power, it must be fairly included in the grant of powers by 
 the charter. The construction of the common phraseology 
 of municipal charters, in order to determine what police 
 powers feU within their provisions, would consume too 
 much space to justify an exhaustive discussion in this con- 
 nection. The subject has already received a full and able 
 treatment by a distinguished American jurist,^ and does not 
 fall properly within the scope of a treatise on the constitu- 
 tional limitation upon the American police power. For 
 these reasons, no attempt has been made to present rules 
 for the construction of the charter grants of police power to 
 municipal corporations. The police regulations of a muni- 
 cipal corporation only concern us in this connection, when 
 they contravene some constitutional limitation, and from 
 this standpoint all the ordinary police regulations have been 
 criticised in these pages. 
 
 1 See Dillon on Municipal Corporations. 
 
 § 212 
 
INDEX. 
 
 [TAe references in index are to pages.} 
 
 ABATEMENT, 
 
 of nuisances — destruction of buildings, 440-442. 
 
 ABORTION, 
 
 criminal element of, 30, 31. . 
 
 ABSTKACT, 
 
 justice, principles of, effect of, on police power, 5-9. 
 
 ACCUSED, 
 
 entitled to counsel, 89-91. 
 
 ACQUISITION, 
 
 of real estate, limitations of, 361-354. 
 
 of interest in personal property regulated, 483-486. 
 
 ADMINISTRATION, 
 
 and execution, sale of lands by, 359, 360. 
 
 ADULTERATION, 
 
 prohibiting sale of, 292. 
 
 ADVICE, 
 
 of counsel, how far defense in malicious prosecution, 63-65. 
 
 AFFINITY, 
 
 as an objection to marriage, 533-535. 
 
 ALIENATION, 
 
 of lands, regulation of, right of, 354-357. 
 
 involuntary, 357-370. 
 
 of personal property, 493-496. 
 
 AMUSEMENTS, 
 
 right to attend, 231, 232. 
 
 APPRENTICES, 568-572. 
 
 ARRESTS, 
 
 lawful, 81-85. 
 
 without warrant, 83-85. 
 
 41 (641) 
 
642 INDEX. 
 
 ASSESSMENTS, 
 
 local, as a mode of taxation, 479-482. 
 
 BAIL, 80, 81. 
 
 BANKRUPTCY AND INSOLVENCY LAWS, 621, 522 
 
 BAR-KOOMS, 
 
 prohibition of, 307, 309, 311. 
 
 BATTERY, 
 
 in self-defense, 25-30. 
 
 BEGGING, 
 
 prohibited, 122, 123. 
 
 BEQUESTS, 
 
 regulation of, 492, 493. 
 
 BETTERMENT LAWS, 366'-370. 
 
 BIBLE, 
 
 in public schools, 161-163. 
 
 BILLS OF ATTAINDER, 72-74. 
 
 BLASPHEMY, 
 
 distinguished from religious criticism, 166-171. 
 
 BODY AND LIMB, 
 security to, 22-29, 
 
 BOYCOTTING, 252-255. 
 
 BREAD, 
 
 regulation of weight of, 208. 
 
 BRIDGES, 
 
 erection of, over navigable streams, 622-623. 
 
 BUILDINGS, 
 
 construction of wooden, regulated, 438-440. 
 destruction of to abate nuisance, 440-442. 
 
 BURIAL GROUNDS, 
 
 regulation of, 437, 438. 
 
 BUSINESS RELATIONS, 
 
 compulsory formation of, 226-232. 
 
 CAPITAL PUNISHMENT, 19-22. 
 
 CHANCERY, 
 
 transfer of lands by courts of, 360. 
 
INDEX. 643 
 
 CHAPLAINS, 
 
 appointed for Congress, Legislatures, army and navy, 160, 161. 
 
 CHARGES AND RATES, 
 
 of corporations regulated by law, 587-591. 
 
 CHARTERS, 
 
 of private corporations inviolable, 574, 675. 
 
 CHRISTIANITY, 
 
 how far recognized by law, 160-163, 166-170. 
 
 CHURCH, 
 
 legal relation of, to State, 156-166. 
 State control of, 163-166. 
 
 CITIZENSHIP, 
 
 distinguished from domicile, 137, 138. 
 
 CITIZENS, 
 
 public duties of, 146, 147. 
 
 CLERICAL PROFESSION, 
 regulation of, 204, 206-207. 
 
 COINS AND COINAGE, 
 
 regulation of, 210, 211, 220-222. 
 counterfeiting, 628, 629. 
 
 COMBINATIONS, 
 
 in restraint of trade, prevention of, 245-251. 
 
 COMMERCE, 
 
 interstate and foreign, regulations affecting, 614-617. 
 
 COMMON CARRIER, 
 
 compulsory carriage by, 228-231. 
 
 COMPETENCY, 
 
 of witnesses, determined by religious faith, 174, 175. 
 
 COMPULSORY, 
 
 carriage by common carriers, 228-231. 
 education, 561-563. 
 emigration, 141-144. 
 
 CONCEALED WEAPONS, 
 
 prohibition of carrying of, 502, 503. 
 
 CONFINEMENT, 
 
 for infectious and contagious diseases, 102, 103. 
 
 of criminals, 97-101. 
 
 of the insane, 103-110. 
 
 to answer for a crime, 79-81. 
 
 of habitual drunkards, 114-116. 
 
644 INDEX. 
 
 CONSANGUINITY, 
 
 and affinity, as objections to marriage, 533-535. 
 
 CONSCRIPTION, 
 
 to armies and navies in time of war, 632. 
 
 CONSTITUTIONAL LIMITATIONS, 
 construction of, 10-13, 68. 
 upon police power, 13-15. 
 upon police regulation of religion, 159-166. 
 
 CONTAGIOUS AND:iNFBCTIOUS DISEASES, 
 confinements for, 102, 103. 
 
 CONTRACTS, 
 
 regulation of, and rights of action, 515-522. 
 bankruptcy and insolvency laws, 521-522. 
 option, when illegal, 262,271. 
 
 CONVEYANCES, 
 
 of land, regulation of, 354-357, 
 
 CONVICT, 
 
 control and punishment of in prison, 97, 98. 
 lease system, 98-101. 
 
 COPYRIGHT, 
 
 as a monopoly, 317. 
 
 CORNERING THE MARKET, 
 prohibited, 248-251. 
 
 CORPORAL PUNISHMENT, 23-25. 
 
 CORPORATIONS, 
 
 police regulations of, 574-602. 
 
 inviolability of charters of private, 574, 575. 
 
 police control of, 576-579. 
 
 freedom from police control, as a franchise, 680-583. 
 
 police regulation of, in general, 584-587. 
 
 laws regulatine; rates and charges of, 587-591. 
 
 police regulation of foreign, 591-593. 
 
 police regulation of railroad8,[593-602. 
 
 COVERTURE, 
 
 estate during, 343-348. 
 
 CRIME, 
 
 effect of, on right, 70. 
 
 confinement to answer for, 79-81. 
 
 and vice distinguished, 148-153. 
 
 punishment of insane for, 110-114. 
 
 not permitted under guise of'religious worship, 171-174. 
 
INDEX. 645 
 
 CBIME — Continued. 
 drunkenness a, 302 
 suicide as a, 18-19. 
 
 CRIMINALS, 
 
 police supervision of habitual, 124-131. 
 conflnement of, 97-101. 
 
 CRITICISM, 
 
 of officers and candidates for office, 45-52. 
 
 COUNSEL, 
 
 accused's right of, 89-91. 
 
 advice of, how far defense in malicious prosecution, 63-65. 
 
 CRUELTY TO ANIMALS, 
 
 laws for the prevention of, 513-516. 
 
 COUNTERFEITING, 
 
 of coins and currencies, 628, 629. 
 
 CURRENCY, 
 
 regulation of the, 210-224. 
 
 CURTESY, 
 
 when interest in expectancy, 344, 345. 
 
 DANGEROUS CLASSES, 
 police control of, 102-136. 
 
 DEFECTIVE TITLES, 
 
 perfected by legislative enactment, 361, 362. 
 
 DESTRUCTION OF PROPERTY, 
 on account of illegal use, 498. 
 
 DISABILITY, 
 
 of married women, 549, 550. 
 
 sale of lands belonging to persons under legal, 358, 359. 
 
 DISEASES, 
 
 as a legal objection to marriage, 535. 
 
 conflnement for infectious and contagious, 102, 103. 
 
 DISORDERLY, 
 
 religious meetings on public streets, 172-174. 
 
 DIVORCES, 539-542. 
 
 DOGS, 
 
 keeping of, 507-513. 
 
 DOMESTIC ANIMALS, 
 
 laws regulating use of, 505-615. 
 
646 INDEX. 
 
 DOMICILE, 
 
 citizenship distinguished from, 137, 138 
 
 DOWER, 
 
 when an inte^est in expectancy, 345-348. 
 
 DRAINAGE, 
 
 of lands, at expense of owner, and against his consent, 444-448, 
 
 DRESS, 
 
 how far subject to police regulations, 155, 156. 
 
 DRUNKARDS, 
 
 confinement of habitual, 114-116. 
 
 when drunkenness a criminal offense, 302. 
 
 DUE PROCESS OF LAW, 
 in criminal trials, 70-72. 
 
 DYNAMITE, 
 
 prohibition of sale of, 298. 
 
 EDUCATION, 
 
 compulsory, 561-563. 
 
 EMIGRATION, 
 
 prohibition of, 141. 
 compulsory 141-144. 
 
 BMmENT DOMAIN, 370-422. 
 
 exercise of power regulated by legislature, 372-378. 
 
 public purpose, what is a, 379-391. 
 
 expropriation, 391. 
 
 what property may be taken, 391-397. 
 
 what constitutes a taking, 397-420. 
 
 compensation, how ascertained, 420-422. 
 
 EMPLOYMENTS, 
 
 State regulations of private and public, 569-573. 
 
 EMPLOYER AND EMPLOYEE, 
 
 State regulation of relation of, 567-573. 
 (see master and servant.) 
 
 ENGROSSING, FORESTALLING, 
 and regrating, 242-246. 
 
 EQUITABLE ESTATES, 
 
 converted into legal estates by statute of uses, 337, 340, 341. 
 
 ESTATE, 
 
 during coverture, when interest in expectancy, 343. 
 tail, abolished or modified by statute, 336-339. 
 
INDEX. 647 
 
 ESTATE— Continued. 
 
 in land, police regulation of, 335-341. 
 
 equitable, converted into legal by statute of uses, 337, 340, 341. 
 
 EXECUTION, 
 
 sale of lands under, 360, 361. 
 
 EXECUTORS AND ADMINISTRATOES, 
 sale of lands by, 350-360. 
 
 EXEMPTION AND HOMESTEAD, 
 laws, 520, 521. 
 
 EXPATRIATION, 138-140.^ 
 
 EXPECTANCY, 
 
 interests in, 341-357. 
 
 EX POSTE FACTO LAWS, 74-79 
 
 EXPOSURE, 
 
 of one's person, 155-156. 
 
 EXPROPRIATION, 
 
 of lands for settlement of small holdings, 391. 
 
 FEDERAL GOVERNMENT, 
 
 location of police power in, 603-639. 
 
 (see police power in the Federal system of government, location of.) 
 
 FISHERIES, 
 
 regulation of non-navigable streams, 448-451 . 
 
 FOREIGN CORPORATION, 
 
 police regulation of, 591-593. 
 
 FORESTALLING, REGRATING AND ENGROSSING, 242-245. 
 
 FRANCHISE, 
 
 may be exclusive, 315-326. 
 
 license to prosecute a prohibited trade is a, 318-327. 
 
 FRAUD, 
 
 regulations for the prevention of, in sale of goods, 207-209. 
 
 FREEDOM OF SPEECH, 
 and of the press, 189-193. 
 
 FUTURES, 
 
 dealing in, when legal, 262-271. 
 
 GAMBLING HOUSES, 
 prohibition of, 291. 
 
648 
 
 INDEX. 
 
 GAME, 
 
 regulation of right to hunt, 440. 
 
 GAS PIPES, 
 
 laying of may be exclusive franchise, 316-317. 
 
 GUARDIAN AND WARD, 
 relation of, 565, 566. 
 
 control of property by guardian, 496-498. 
 testamentary guardian, 566. 
 
 HABITUAL CRIMINALS, 
 
 police supervision of, 124-131. 
 
 HABITUAL DRUNKARDS, 
 confinement of, 114-116. 
 
 HARBORS, 
 
 police regulation of, 624-627. 
 
 HARD LABOR, 
 
 required of convicts, 98. 
 
 HAY, 
 
 manufacture of pressed a monopoly, 324. 
 
 HEALTH, 
 
 security to legalized nuisances, 32-34. 
 
 HEIR'S INTEREST, 
 
 is an interest in expectancy, 342. 
 
 HIGHWAY, 
 
 extraordinary use of, is a franchise, 316, 317. 
 
 land appropriated for. 
 
 (see eminent domain.) 
 
 appropriated for use of railroads, 409-420. 
 
 HOMESTEAD AND EXEMPTION LAWS, 620, 521. 
 
 HOMICIDE, 
 
 justifiable in defense of one's rights, 25-30. 
 
 HUSBAND AND WEFE, 
 
 regulation of relation of, 525-550. 
 
 marriage a natural status, subject to police regulation, 525-527. 
 
 constitutional limititions upon police control of marriage, 528, 529 . 
 
 distinction between natural and legal capacity, 529, 530. 
 
 insanity as a legal incapacity, 530. 
 
 disability of infancy in respect to marriage, 430-533. 
 
 consanguinity and affinity, 533-535. 
 
 constitutional diseases, 535. 
 
 financial condition, 535, 536. 
 
INDEX. 649 
 
 HUSBAND AND WIFE — Continued. 
 
 differences In race, miscegenation, 636, 537. 
 
 polygamy prohibited, 538, 539. 
 
 marriage indissoluble — divorce, 539-542. 
 
 regulation of marriage ceremony, 543, 544. 
 
 wife in legal subjection to the husband, its justification, 544-547. 
 
 husband's control of wife's property, 547-549. 
 
 legal disabilities of married women, 549, 550. 
 
 estate during coverture, interest in expectancy, 343. 
 
 curtesy, when interest in expectancy, 344, 345. 
 
 ILL-FAME, 
 
 prohibition of houses of, 291. 
 
 IMMIGRATION, 
 
 prohibition of, 144, 145. 
 
 IMPORTATIONS, 
 
 legislative restraint of, 224-226. 
 
 IMPRISONMENT, 
 
 for crime, 79-81, 97-101. 
 
 IMPROVEMENT, 
 
 of property, at expense of owner and against his consent, 444-448. 
 
 INDIANS, 
 
 regulation of the, 143, 144. 
 
 INDICTMENT, 
 
 by grand jury, 91, 92. 
 
 INFECTIOUS AJJID CONTAGIOUS DISEASES, 
 confinements for, 102, 103. 
 
 INFORMATION, 
 
 prosecution by, 91, 92. 
 
 INHERITANCE, 
 
 and interest in expectancy, 342. 
 
 INJURIOUS ARTICLES OF CONSUMPTION, 
 prohibiting sale of, 294, 296. 
 
 INNKEEPERS, 
 
 compulsory entertainment by, 228, 231. 
 
 INSANE, 
 
 confinement of the, 103-110. 
 control of, in asylum, 110. 
 punishment of, for crime, 110-114. 
 
 INSANITY, 
 
 as a legal incapacity to marriage, 530. 
 
650 INDEX. 
 
 INSOLVENCY AND BANKRUPTCY LAWS, 521, 522. 
 
 INSPECTION OF GOODS, 207, 208. 
 
 INSURANCE COMPANIES, 
 
 license may be required of, 281. 
 
 INTEREST IN EXPECTANCY, 341-351. 
 
 INTEREST AND USURY LAWS, 238-241. 
 
 INTERSTATE COMMERCE, 
 
 regulations affecting, 614-617. 
 
 INTOXICATING LIQUORS, 
 prohibiting sale of, 298-311. 
 licensing sale of, 274-276. 
 
 INVENTIONS, 
 
 patent to, a monopoly, 317. 
 
 INVOLUNTARY ALIENATION, 
 of lands, 357-370. 
 scope of legislative authority, 358. 
 by persons under legal disability, 358-359. 
 sales by executors and administrators, 359-360. 
 under execution, 360. 
 by decree of chancery, 361. 
 confirming defective titles, 361-362. 
 partition, 363-366. 
 betterments, 366-370. 
 eminent domain, 370-422. 
 of personal property, 493-496. 
 
 JOINT ESTATES. 
 
 regulated by statute, 337, 339, 340. 
 
 partition of, 362-364. 
 
 tenancies, converted into tenancies in common, 337, 339, 340. 
 
 LABOR, 
 
 required of convicts, 98. 
 
 LAND TENURE, 328-335. 
 
 LAND, 
 
 what is private property in, 328-335. 
 
 How far use of may be controlled by requirement of license, 442-444. 
 
 (see use of land.) 
 
 LAW, 
 
 regulation of the practice of, 204, 205. 
 
INDEX. 651 
 
 LAWS OF NATIONS, 
 
 offenses against the, 638. 
 
 LEARNED PROFESSIONS, 
 regulations of, 200, 204. 
 regulations of practice in the, 204-207. 
 
 LEASE OF CONVICTS, 98-101. 
 
 LEGAL PROFESSION, 
 regulation of, 200-203. 
 
 LEGAL TENDER, 
 
 regulation of, 210-22i. 
 
 LESSORS, 
 
 statutory liability of, for acts of lessees, 452-460. 
 
 LIBERTY, 
 
 personal, defined and how guaranteed, 66-69. 
 
 LICENSE. 
 
 as police regulation distinguished from tax, 278-289. 
 
 how far use of land may be controlled by requirement of, 442-444. 
 
 of trades and occupations, 271-289. 
 
 revoked by prohibition of trade, 287, 288. 
 
 LIFE, 
 
 security to, 17. 
 
 LIMITATIONS, 
 
 upon police power of United States, 1-16. 
 upon religious worship permissible, 171-174. 
 
 LIQUOR, 
 
 prohibition of sale of, 298-311. 
 regulations of the trade, 274-311. 
 
 LOCALITY, 
 
 police control of employments In respect to, 311-315. 
 
 LOTTERIES, 
 
 prohibition of, 291. 
 
 LUMBER, 
 
 public surveying of, 208. 
 
 LUNATICS, 
 
 confinement of, 103-110. 
 
 prohibiting sale of liquors to, 302-304. 
 
 MALICIOUS PROSECUTION, 59-65. 
 
 advice of counsel, how far defense in, 63-65. 
 
652 INDEX. 
 
 MANUFACTURE, 
 
 of personal property regulated, 502-504. 
 
 (see licenses, trades and occupation ; personal property.) 
 
 MARKETS, 
 
 lieeping of, made a monopoly, 324. 
 "cornering" prohibited, 248-256. 
 prohibition of private and establishment of public, 312-314. 
 
 MARRIAGE, 
 
 regulation of, 525-550. 
 (see husband and wife.) 
 
 MARRIED WOMEN, 
 
 legal disabilities of, 649, 550. 
 
 MASTER AND SERVANT, 
 
 regulation of relation, 567-573. 
 
 terms " master and servant " defined, 567. 
 
 relation purely voluntary, 567, 568. 
 
 apprentices, 568-572. 
 
 State regulation of private employment, 569-572. 
 
 State regulation of public employments, 572-673. 
 
 MEDICINE, 
 
 regulation of practice of, 202, 203, 205, 206. 
 
 compulsory submission to medical and surgical treatment, 31, 32. 
 
 MENDICANCY, 
 
 prohibited, 122, 123. 
 
 MERCANTILE REPORTS, 
 how far privileges, 37, 56. 
 
 MERCHANDISE, 
 
 regulation of sale of certain articles of, 207-210. 
 
 MILITIA, 
 
 regulation of, 632, 633. 
 
 MINISTERS, 
 
 regulation of the duties of, 206, 207. 
 no restriction as to who may be, 204. 
 
 MINORS, 
 
 State control of, 131-136. 
 
 MISCEGENATION, 
 prohibited, 536, 537. 
 
 MONOPOLIES, 
 
 of certain trades created by law, 315, 327. 
 
INDEX. 653 
 
 MORALITY AND BELIGION, 
 police control of, 148-188. 
 
 MUNICIPAL CORPORATION, 
 
 exercise of police power by, 638, 639. 
 
 NATURALIZATION, 140. 
 
 NAVIGABLE STREAMS, 
 
 police control of, 617-623. 
 
 NEGLIGENCE, 
 
 contracts against liability for, prohibited, 265-259. 
 
 NITRO-GLYCBRmB, 
 
 protiibition of sale of, 298. 
 
 NON-NAVIGABLE STREAMS, 
 conversion of, 451, 452. 
 
 NUISANCES, 
 
 legalized, 32-34. 
 
 what are, 422-426. 
 
 judicial question, 426-430. 
 
 unwholesome trades in tenement houses prohibited, 430-433. 
 
 confinement of objectionable trades to certain localities, 433-436. 
 
 regulation of burial grounds, 437, 438. 
 
 laws regulating construction of wooden buildings, 438-440. 
 
 abatement of, 440. 
 
 destruction of buildings, 440-442. 
 
 OCCUPATIONS AND TRADES, 
 police regulation of, 194-327. 
 (see police regulation of trades and professions.) 
 Prohibition of, in general, 289-298. 
 
 OILS, 
 
 regulation of sale of, 207. 
 
 OLEOMARGARINE, 
 
 prohibition of sale of, 295-297. 
 
 OPTION CONTRACTS, 
 when iUegal, 262-271. 
 
 PATENT, 
 
 to invention a monopoly, 317. 
 
 PATENTED ARTICLES, 
 
 regulation of sale of, 629-631. 
 
654 
 
 INDEX. 
 
 PARENT AND CHILD, 
 
 regulation of relation of, 651-566. 
 
 original character of relation of its political aspect, 651-554. 
 
 no limitation to State interference, 654-561. 
 
 compulsory education, 561-663. 
 
 parent's duty of maintenance, 563, 564. 
 
 chOd's diity to support indigent parents, 564, 665. 
 
 relation of guardian and ward, subject to State regulation, 666. 
 
 testamentary guardian, 566. 
 
 PARTITION, 
 
 of joint estates, 362-364. 
 
 PERPETUITY, 
 
 rule against, in relation to personal property, 488, 489. 
 
 PERSONAL LIBERTY, 
 
 defined and how guaranteed, 66-69. 
 
 PERSONAL PROPERTY, 
 
 regulation of sale of certain articles of, 207-210. 
 police regulation of, 483-524. 
 acquisition of interest in, 483, 486. 
 
 real and personal property therein distinguished, 484-486. 
 statute of uses and rule against perpetuity as regulations of per- 
 sonal property, 486-489. 
 regulation and prohibition of sale of personal property, 489-492. 
 disposition of, by will, 492, 493. 
 involuntary alienation, 493-496. 
 control of property by guardian, 496-498. 
 destruction of personal property on account of illegal use, 498. 
 laws regulating use of, 499-515. 
 prohibition of possession of certain, 499, 600. 
 regulation and prohibition of manufacture of certain, 600-602. 
 carrying of concealed weapons prohibited, 502, 503. 
 manufacture of regulated, 604. 
 miscellaneous regulation of use of, 604. 
 laws regulating use of domestic animals in general, 505-507. 
 keeping of dogs, 507-513. 
 
 laws for the prevention of cruelty to animals, 518-516. 
 regulation of contracts and rights of action, 615-522. 
 regulation of ships and shipping, 523-524. 
 
 PILOTAGE LAWS, 624-627. 
 
 defendants, in criminal prosecution, 92-95. 
 
 PEINE FORTE ET DURE, 92. 
 
 POISON, 
 
 regulation of sale of, 209, 210. 
 
INDEX. 655 
 
 POLICE POWER, 
 
 defined and explained, 1-4. 
 
 constitutional limitations upon, 13-15. 
 
 abstract justice no limitation upon, 5-9. 
 
 control of criminal classes, 70-101. 
 
 control of dangerous classes, 102-136. 
 
 control of insane, 103-114. 
 
 control of habitual drunkards, 114-116. 
 
 ^pntrol of vagrants, 116-122. 
 
 control of morality and religion, 148-188. 
 
 control of minors, 131-136. 
 
 regulation of citizensMp and domicile, 137-147. 
 
 regulation of religion, constitutional restrictions, 159-166. 
 
 supervision of habitual criminals, 124-131. 
 
 supervision of prostitutes, 131. 
 
 regulation of personal property, 483-524. 
 
 (see personal property.) 
 
 in its relation to corporations, 574-602. 
 
 (see corporations.) 
 
 regulation of real property, 328-482. 
 
 (see real property.) 
 
 regulation of trades and professions, 194-327. 
 
 (see trades and professions.) 
 
 in the Federal system of government, location of, 603-639. 
 
 United States government one of enumerated povrers, 603-612. 
 
 generally, resides in the States, 612-614. 
 
 regulations affecting interstate commerce, 614, 617. 
 
 police control of navigable streams, 617-623. 
 
 police regulation of harbors, pilotage laws, 624-627. 
 
 regulation of weights and measures, 627, 628. 
 
 counterfeiting of coins and currencies, 628, 629. 
 
 regulation of sale of patented articles, 629-631. 
 
 war and rebellion, 631, 632. 
 
 regulation of militia, 632, 633. 
 
 taxation, 633-638. 
 
 regulation of offenses against the laws of nations, 688. 
 
 exercise of, by municipal corporations, 688-639. 
 
 POLYGAMY, 
 
 prohibited, 538, 539. 
 
 POST-OFFICE AND POST ROADS, 
 government monopolies, 326, 327. 
 
 POVERTY, 
 
 as a legal objection to marriage, 635, 636. 
 POWER OF APPOINTMENT, 
 
 when interests in expectancy, 350, 361. 
 
656 INDEX. 
 
 PKACTICB OF LAW, 
 
 regulation of the, 204, 205. 
 
 PRBLIMINAEY CONFINEMENT, 
 to answer for a crime, 79-81. 
 
 PRESS, 
 
 police regulation of the, 180-193. 
 
 PRICES AND CHARGES, 
 regulation of, 233-238. 
 
 PRIVATE EIGHTS, 
 table of, 16. 
 
 PRIVATE PROPERTY, 
 
 in land, what is, B28-335. 
 
 PRIVILEGE, 
 
 of legislators, 37-40. 
 
 lu judicial proceedings, 40-45. 
 
 by government may be made exclusive, 315-326. 
 
 PRIVILEGED COMMUNICATIONS, 36-39. 
 
 PROCESS FAIR ON ITS FACE, 81-83. 
 
 PROFESSIONS, 
 
 regulation of, 1 4-327. 
 
 PROHIBITION, 
 
 of emigration, 141. 
 
 of sale of railroad tickets by scalpers, 292, 293. 
 
 of sale of personal property, 294, 295, 298, 311, 489-492. 
 
 of unwholesome trade in tenement house, 430-433. 
 
 of private market, 312, 314. 
 
 of possession of certain personal property, 499, 500. 
 
 of manufacture of certain articles, 500, 502. 
 
 of carrying concealed weapons, 502, 503. 
 
 PROSTITUTION, 
 
 police supervision of, 131. 
 houses of, prohibited, 291. 
 
 PROTECTIVE TARIFF, 224-226. 
 
 PUBLIC POLICY, 
 
 general prohibition of contracts on ground of, 271. 
 
 PUBLICATIONS, 
 
 through the press, how far privileged, 62-59. 
 
 PUNISHMENT, 
 capital, 19-22. 
 
INDEX. 657 
 
 PUNISHMENT— Continued. 
 
 when cruel and unusual, 21, 22, 24. 
 of criminal insane, 110-114. 
 
 PURCHASE OF REAL ESTATE, 
 limitation of the, 361-354. 
 
 QUARTERING SOLDIERS, 
 
 in private dwellings, 466, 467. 
 
 RAILROADS, 
 
 appropriation of highways for use of, 409-420. 
 as a government monopoly, 326, 327. 
 police regulation of, 593-602. 
 regulation of rates and charges of, 587-591. 
 
 RATES AND CHARGES, 
 
 of corporations, regulated by law, 587-691. 
 
 REAL PRORERTY, 
 
 police regulations of, 328-482. 
 
 what is meant by " private property in land?" 328-335. 
 
 regulation of estates — vested rights, 336-341. 
 
 interests of expectancy, 341-351 . 
 
 limitation of the right of acquisition, 351-364. 
 
 regulation of the right of alienation, 364-357. 
 
 Involuntary alienation, 357-370. 
 
 eminent domain, 370-422. 
 
 exercise of power regulated by legislature, 372-378. 
 
 public purpose, what is a, 379-391 . 
 
 what property may be taliien, 391-397. 
 
 what constitutes a taking, 397-420. 
 
 compensation, how ascertained, 420-422. 
 
 regulation of the use of laads — what is a nuisance? 422-426. 
 
 what is a nuisance, a judicial question, 426-430. 
 
 unwholesome trades in tenement houses may be prohibited, 430-433. 
 
 confinement of objectionable trades to certain localities, 433-436. 
 
 regulation of burial grounds, 437, 438. 
 
 laws regulating the construction of wooden buildings, 438-440. 
 
 regulation of right to hunt game, 440. 
 
 abatement of nuisances — destruction of buildings, 440-442. 
 
 how far the use of land may be controlled by the requirement of 
 
 license, 442-444. 
 Improvement of property at the expense, and against the will of the 
 
 owner, 444-448. 
 regulation on non-navigable streams — Fisheries, 448-481. 
 conversion of non-navigable into navigable streams, 461, 452. 
 
 42 
 
658 INDEX. 
 
 REAL PROPERTY— ConWriMed. 
 
 statutory liability of lessors for the acts of lessees, 452-460. 
 search warrants, 460-466. 
 
 quartering soldiers In private dwellings, 466, 467. 
 taxation, 467-482. 
 
 REGRATING, FORESTALLING AND ENGROSSING, 242-246. 
 
 RELIGION, 
 
 police regulation of, constitutional restrictions upon, 169-166. 
 
 crime not permitted under guise of, 171-174. 
 
 criticism and blasphemy distinguished, 166-171. 
 
 limitation upon worship permissible, 171-174. 
 
 discrimination in respect to admissibility of testimony, 174, 175. 
 
 exercises in Congress and Legislatures of States, 160, 161. 
 
 in public schools, 161-163. 
 
 meetings in public thoroughfares, 172-174. 
 
 REMAINDERS, 
 
 when interests in expectancy, 348-350. 
 
 REMOTE CAUSE, 
 
 not subject of police regulation, 151-162. 
 
 REPUTATION, 
 
 security to, 35-65. 
 
 RESTRAINT OF TRADE, 
 
 combinations in, prevention of, 245-251. 
 
 REVERSIONS, 
 
 not Interest in expectancy, 348. 
 
 RIGHT OP ACTION, 
 
 regulation of contracts and, 616-622. 
 
 RIGHTS, 
 
 how affected by crime, 70. 
 
 RULE AGAINST PERPETUITY, 
 
 in relation to personal property, 488, 489. 
 
 SALE, 
 
 of certain articles of merchandise, regulation of, 207-310. 
 
 SALOONS, 
 
 prohibition of, 307, 309-311. 
 
 SCALES, 
 
 regulation of weighing by public, 208, 209. 
 
 SCALPERS, 
 
 ticket, prohibited from carrying on the business, 292, 293. 
 
INDEX. 659 
 
 SEARCH WARRANTS, 460-466. 
 SECURITY, 
 
 to health — legalized nuisance, 32-34. 
 
 to limb and body, 22-29. 
 
 to life, 17, 18. 
 
 to reputation, 35-65. 
 
 privileged communications, 35-69. 
 
 malicious prosecution, 59-65. 
 
 SHIPS AND SHIPPING, 
 regulation of, 523, 624. 
 
 SKILLED TRADES, 
 regulation of, 200. 
 
 SLAUGHTER-HOUSES, 
 
 confined to certain localities, 312, 319-327. 
 establishment of public, 316. 
 made a monopoly, 319-327. 
 
 SLAVERY, 
 
 abolished, 66. 
 
 SOLDIERS, 
 
 in private dwellings, quartering, 466, 467. 
 
 SPECULATION, 
 
 prevention of, 241-245. 
 
 SPEECH, 
 
 freedom of, 189-193. 
 
 STATUTE OF USES, 
 
 application to personal property, 486-488. 
 
 STATUTE 
 
 of limitations, applicable to existing causes of action, 522. 
 
 STREAMS, 
 
 fisheries, 448-451. 
 
 regulation of non-navigable, 448-451. 
 
 conversion of non-navigable into navigable, 451, 452. 
 
 police control of navigable, 617-623. 
 
 STREETS, 
 
 extraordinary use of, may be exclusive franchise, 316, 317. 
 
 SUICIDE, 
 
 as a crime, 18, 19. 
 
 SUMPTUARY LAWS, 163-156. 
 
 SUNDAY LAWS, 
 
 constitutionality of, 175-188. 
 
660 INDEX. 
 
 SURGICAL AND MEDICAL TREATMENT, 
 compulsory submission to, 31, 32. 
 
 SELF-PRESERVATION, 
 
 no excuse for homicide of innocent person, 26-28. 
 
 TABLE, 
 
 of private rights, 16. 
 
 TARIFFS, 
 
 for protection, 224^-226. 
 
 TAXATION, 467-482; 633-688. 
 
 as licensing trades and occupations 271-289. 
 
 Kinds of, 467-471. 
 
 Limitations upon legislative authority, 471-482. 
 
 Local assessments as mode of, 479-482. 
 
 Relation of State and Federal governments iu regard to, 633-638. 
 
 TELEGRAPH, 
 
 as a government monopoly, 326-327. 
 
 TENANCY, 
 
 in common, joint tenancy converted into, 337, 339, 340 . 
 
 TENDER, 
 
 regulation of legal 210-224. 
 
 TENEMENT HOUSES, 
 
 prohibition of unwholesome trades in, 430-433. 
 
 TENURE, 
 
 in land, 328-335. 
 
 THEATER, 
 
 right to visit, 231-232. 
 
 TICKET SCALPERS, 
 
 prohibited from plying their vocation, 292-293. 
 
 TRADES AND PROFESSIONS, 
 regulation of, 194-327. 
 General proposition, 194-198. 
 prohibition as to certain classes, 198-200. 
 skilled, regulation of, 198-200. 
 learned professions, 200-204. 
 
 regulation of practice in the learned professions, 204-207. 
 regulation of sale of certain articles of merchandise 207-210. 
 Legal tender and the regulation of the currency 210-224. 
 Legislative restraint of importations — protective tariffs, 224-226. 
 Compulsory formation of business relations, 226-232. 
 Regulation of prices and charges, 233-238. 
 
INDEX. 661 
 
 TRADES AND PROFESSIONS — Continued. 
 Prevention of speculation, 241-245. 
 Prevention of combinations In restraint of, 245-261. 
 boycotting, 2P2-255. 
 
 contracts against liability for negligence prohibits, 255-259. 
 wagering contracts prohibited, 259-271. 
 
 general prohibition of contracts on the grounds of public policy, 271. 
 licenses, 271-289. 
 
 prohibition of. occupations in general, 289-298. 
 prohibition of the liquor trade, 298-311. 
 police control of employments in respect to locality, 311-315. 
 monopolies, 315-327. 
 
 license to prosecute a prohibited, is a franchise, 318-327. 
 unwholesome, prohibited, 430-433. 
 objectionable, confined to certain localities, 433-436. 
 
 TREASURY NOTES OF U. S., 
 legal tender, 210-224. 
 
 TRLAL OF THE ACCUSED, 
 
 constitutional requirements, 85-89. 
 
 must be speedy, 86-87. 
 
 must be public, 87-89. 
 
 accused entitled to counsel, 89-91. 
 
 indictment by grand jury, 91-92. 
 
 plea of defendant, 92-96 . 
 
 trial by jury, 95. 
 
 legal jeopardy, 96-97. 
 
 UNITED STATES, 
 
 is government of enumerated powers, 603-612. 
 
 police powers between States and, 603-639. 
 
 (see police power in the Federal system of government.) 
 
 U. S. TREASURY NOTES, 
 legal tender, 210-224. 
 
 UNWHOLESOME, 
 
 food, prohibition of sale of, 293-298. 
 
 trades in tenement houses prohibited, 430-433. 
 
 trades, confined to certain localities, 433-436. 
 USE OF LAND, 
 
 regulation of, what is a nuisance, 422-426. 
 
 what is a nuisance, a judicial question, 426-430. 
 
 unwholesome trades in tenement houses prohibited, 430-433. 
 
 confinement of objectionable trades to certain localities, 433-436. 
 
 regulation of burial grounds, 437, 438. 
 
662 INDEX. 
 
 USE OF LAND — Continued. 
 
 laws regulating construction of wooden buildings, 438-440. 
 
 regulation of right to hunt game, 440. 
 
 abatement of nuisances, destruction of buildings, 440-442. 
 
 of personal property, laws regulating, 499-515. 
 
 (see personal property.) 
 
 USES, STATUTE OF, 
 
 in relation to personal property, 486-488. 
 
 USURY AND INTEREST LAWS, 238-241. 
 
 VAGEANCT, 
 
 prohibited, 116-122. 
 
 VESTED RIGHTS, 
 
 in real property, 335-341. 
 
 VICE, 
 
 and crime distinguished, 148-163. 
 
 not subject of police regulations, 148-151. 
 
 WAGEBENG CONTRACTS, 
 prohibited, 259-271. 
 
 WAR AND EEBELION, 631-632. 
 
 WAREHOUSES, 
 
 right to make use of, 230. 
 
 WATER WORKS, 
 
 construction of, may be an exclusive franchise, 317 
 
 WIPE, 
 
 in legal subjection to husband, its justification, 644-547. 
 
 dower, when an interest in expectancy, 345-348. 
 
 legal disabilities, 549, 550. 
 
 property, under control of husband, 547-549. 
 
 (see husband and wife.) 
 
 WILL, 
 
 laws regulating disposition of personal property by, 492-473. 
 
 WITNESSES, 
 
 religious test of competency of, 174, 175. 
 
 WOODEN BUILDINGS, 
 
 laws regulating construction of, 438-440