tiirsffiOcK:: ; THE LIBRARY OF [HE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW e Property ( LAW LIBRARY re t or notijy Lima p"' in irn, Books bd^l^i?!^ to this Librajjn^r^^never sold, cd^^ged^vr given away. CHICAGO STAR BINBERY 224 S. Spring St., L. »i. Tat. Mutual AA34 LAW LIBRARY OF LOS ANGELES COUNTY TI-IE Police Power of the AND DECISIONS THEREON AS ILLUSTRATING':; THE DEVELOPMENT AND VALU£.. ''" OF CASE LAW vj ;. - BY ALFRED RUSSELL, LL. D. OF THE DETROIT BAR PRES. MICH. POLIT. SCIENCE ASSO. CHICAGO CALLAGHAN & COMPANY 1900 COPYRIGHT BY CALLAGHAN & COMPANY 1900 T TABLE OF CONTENTS. CHAPTER I. Development of the Law in General, .... 1 CHAPTER 11. GenebaLi Scope of the Police Power, 23 CHAPTER III. The Police Power as Exercised in the Administration OF Justice by the State, . . .... 37 CHAPTER IV. Limitations on the Police Power Respecting Freedom OF Contract, 53 CHAPTER V. The Constitutional Obligation of Equal Protection, . 72 CHAPTER VI. The State Police Power as to Public Health and Safety, 85 CHAPTER VII. The State in Relation to Its Police Power over Cor- porations, 101 CHAPTER VIII. Limitations on the Police Power Arising from the Fed- eral Power over Commerce, 148 CHAPTER IX. The Police Power Concerning Property in Business, with General Conclusions, 167 735317 TABLE OF CASES CITED. Page. Adams Exp. Co. vs. Ohio, 165 U. S. 194 73 Addyston etc. Co. vs. United States, 175 U. S. 211 174 Allan vs. Wickoff. 48 N. J. Law, 90 81 Allen vs. Newberry, 21 How. 244 157 Allgeyer vs. La., 165 U. S. 578 167 Amer. Tel. Co. vs. W. Tel. Co., 67 Ala. 32 57 Anderson vs. U. S., 171 U. S. 604 125, 174 Ash vs. People, 11 Mich. 347 94 Arthur vs. Oakes, 63 Fed. 310 168 Asylum vs. New Orleans, 105 U. S. 362 132 Atchison etc. R. R. vs. Matthews, 174 U. S. 96 57, 75 Atty. Gen. vs. Hunter, 1 Dev. Eq. 12 50 Atty. Gen, vs. Looker, 111 Mich. 498 138 Atty. Gen. vs. 0. C. R. R., 160 Mass. 62 57, 100 Atty. Gen. v. Lynn R. R., 16 Gray, 242 50 Atty. Gen. vs. Tudor Ice Co., 104 Mass. 239 50 Atty. Gen. v. Williams, 55 N. E. R. 77 36 Austin vs. Murray, 16 Pick. 126 95 Baldwin vs. State, 21 Tex. App. 591 36 Bait. etc. R. R. v. Voigt, 176 U. S. 490 53 Baker's Appeal, 109 Pa. St. 468 137 Bancroft vs. Cambridge, 126 Mass. 458 50 Bank vs. Boston, 125 U. S. 60 73 " Sharp, 6 How. 301 129 Barbier vs. Connolly, 103 U. S. 37 63, 81, 174 Barr vs. Essex Trade Council, 53 N. J. Eq. 101, 136 45 Bartemeyer vs. Iowa, 18 Wall. 129 85, 99 Beck vs. R. R. Teamster's Union, 118 Mich. 497 44 Beer Co. vs. Mass., 115 Mass. 153 99, 100 Beer Co. vs. Mass., 97 U. S. 25 85, 90, 99, 124, 146 Bell's Gap R. R. vs. Penn., 134 U. S. 232 73 Binghamton Bridge, The, 3 Wallace, 51 130 Birmingham R. R. vs. Parsons, 101 Ala. 662 57 Blake vs. McClung, 172 U. S. 239 80 Blakemore vs. B. & E. R. R., 7 E. & B. 1051 2 Bloodgood vs. M. & H. R. R., 18 Wend. 9 144 Board etc. vs. Macomb, 92 U. S. 531 131 Bolln vs. Nebraska, 176 U. S. 83 " 38 V TABLE OF CASES CITED. Page. Adams Exp. Co. vs. Ohio, 165 U. S. 194 73 Addyston etc. Co. vs. United States, 175 U. S. 211 174 Allan vs. Wickoff, 48 N. J. Law, 90 81 Allen vs. Newberry, 21 How. 244 157 Allgeyer vs. La., 165 U. S. 578 167 Amer. Tel. Co. vs. W. Tel. Co., 67 Ala. 32 57 Anderson vs. U. S., 171 U. S. 604 125, 174 Ash vs. People, 11 Mich. 347 94 Arthur vs. Oakes, 63 Fed. 310 168 Asylum vs. New Orleans, 105 U. S. 362 132 Atchison etc. R. R. vs. Matthews, 174 U, S. 96 57, 75 Atty. Gen. vs. Hunter, 1 Dev. Eq. 12 50 Atty. Gen. vs. Looker, 111 Mich. 498 138 Atty. Gen. vs. O. C. R. R., 160 Mass. 62 57, 100 Atty. Gen. v. Lynn R. R., 16 Gray, 242 50 Atty. Gen. vs. Tudor Ice Co., 104 Mass. 239 50 Atty. Gen. v. Williams, 55 N. E. R. 77 36 Austin vs. Murray, 16 Pick. 126 95 Baldwin vs. State, 21 Tex. App. 591 36 Bait. etc. R. R. v. Voigt, 176 U. S. 490 53 Baker's Appeal, 109 Pa. St. 468 137 Bancroft vs. Cambridge, 126 Mass. 458 50 Bank vs. Boston, 125 U. S. 60 73 " Sharp, 6 How. 301 129 Barbier vs. Connolly, 103 U. S. 37 63, 81, 174 Barr vs. Essex Trade Council, 53 N. J. Eq. 101, 136 45 Bartemeyer vs. Iowa, 18 Wall. 129 85, 99 Beck vs. R. R. Teamster's Union, 118 Mich. 497 44 Beer Co. vs. Mass., 115 Mass. 153 99, 100 Beer Co. vs. Mass., 97 U. S. 25 85, 90, 99, 124, 146 Bell's Gap R. R. vs. Penn., 134 U. S. 232 73 Binghamton Bridge, The, 3 Wallace, 51 130 Birmingham R. R. vs. Parsons, 101 Ala. 662 57 Blake vs. McClung, 172 U. S. 239 80 Blakemore vs. B. & E. R. R., 7 E. & B. 1051 2 Bloodgood vs. M. & H. R. R., 18 Wend. 9 144 Board etc. vs. Macomb, 92 U. S. 531 131 Bolln vs. Nebraska, 176 U. S. 83 ' 38 V yj TABLE OF CASES CITED. Page Boston & Lu R. R. vs. S. & L. R. R., 2 Gray, 1 134 Bowman vs. Chi. etc. R. R., 125 U. S. 508 161 Boyd vs. Alabama, 94 U. S. 645 101, 124 Brass vs. North Dakota, 153 U. S. 391 117, 178 Brennan vs. Titusville, 153 U. S. 289 74 Britton vs. Atlanta R. R., 88 N. C. 536 79 Britton vs. Mayor, 21 How. 251 88 Bronson vs. Kinzie, 1 Howard, 311 129 Brown vs. New Jersey, 175 U. S. 172 37 Budd vs. New York, 143 U. S. 517 HI, 178, 127 Burrows vs. Delta Transp. Co., 106 Mich. 582 93, 154 Butcher's Union Co. vs. Cres. City, 111 U. S. 744 91, 99, 124 Butler vs. Chambers, 36 Minn. 69 93, 178 Can. So. R. R. vs. Gebhard, 109 U. S. 5?7 21 Cardwell vs. Bridge Co., 113 U. S. 203 165 California vs. Pac. R. R., 127 U. S. 1, 41 139 Camfield vs. U. S., 167 U. S. 524 ....518, 523 Capital Traction Co. vs. Holt, 174 U. S. 1 39 Carew vs. Rutherford, 106 Mass. 1 43 Casey vs. Cin. Union, 12 L. R. A. 1S3 and note 168 Cavanagh vs. Boston, 139 Mass. 426 86 Central R. R. vs. Georgia, 92 U. S. 665 131 Cent. Transp. Co. vs. Pullman Car Co., 139 U. S. 49 127 Central Trust Co. vs. Cit. St. Ry., 82 Fed. 1 140 Cent. Un. Telephone Case, 118 Ind., 194 179 Chaddock vs. Day, 75 Mich., 527 95 Charles River Bridge vs. Warren Bridge, 11 Pet. 420 106, 127 Charlotte R. R. Co. vs. Gibbers, 142 U. S.. 386 97, 162 Chesapeake Telep. Co. vs. B. & 0. Teleg. Co., 66 Md., 474 115 Chesebrough, Matter of, 78 N. Y., 332, 86 Clark vs. Kansas City, 176 U. S., 114, 119 73 Chi., B. & Q. R. R. vs. Iowa, 84 U. S. 155 106 Chi., B. & Q. R. R. vs. Nebraska, 170 U. S., 57 181 Chi., B. & Q. R. R. vs. State, 47 Neb., 549 140 Chi., B. & Q. R. R. vs. Chicago, 166 U. S., 226 180 Chi., C. C. & St. L. vs. Backus, 133 Ind. 513 83 Chi. etc. R'y. vs. Tompkins, 176 U. S., 167 118, 156 Chicago Lake Front case, 146 U. S., 387 123 Chi., M. & St. P. R. R. vs. Ackley, 94 U. S., 179 106 Chi., M. & St. P. R. R. vs. Solan, 169 U. S., 133 169 Chi. & N. R. vs. People, 56 111. 365 144 Chi. etc, Ry. vs. Minnesota, 134 U. S. 418 117, 153 Chi. R. R. vs. Moss, 60 Miss. 641 77 Chi. etc. Ry. vs. Wellman, 143 U. S., 339 118, 156 TABLE OF CASES CITED. vii Page China Co. vs. Brown, 164 Penn., 449 45 Chrisman vs. Brookhaven, 70 Miss., 477 81 Christensen, Re, 43 Fed., 213 36 Cincinnati vs. Cameron, 33 Ohio St., 336 88 Citizen St. Ry. vs. Detroit Ry., 171 U. S., 48 141 Cogswell vs. N. Y. Co., 103 N. Y., 10 90 Collins vs. New Hampshire, 171 U. S., 30 178 Chin Yan Exp., 60 Cal., 79 89 Commonwealth vs. Alger, 7 Cush., 84 27 Commonwealth vs. Bearse, 132 Mass., 549 27 Commonwealth vs. F. & M. Bank, 22 Pick, 542 142 Commonwealth vs. Franklin, 4 Dallas, 255 46 Commonwealth vs. Hamilton Co., 120 Mass., 283 55 Commonwealth vs. Paul. 170 Pa. S., 284 178 Commonwealth vs. Patch, 97 Mass., 221 89 Commonwealth vs. Penn. Canal Co., 66 Pa. St., 41 142 Commonwealth vs. Perry, 155 Mass., 117 54 Commonwealth vs. Plaisted, 148 Mass., 375 51 Cons. Steel Co. vs. Murray, 80 Fed., 811 45 Continental Co. vs. Board, 67 Fed., 310 168 Cook vs. Moffat, 5 How., 295 129 Cooley vs. Wardens, 12 How., 299 159 Coeur d'Alene etc. Co. vs. Miner's Union, 51 Fed., 260 168 County of Mobile vs. Kimball, 102 U. S., 691 148 Covington etc. Co. vs. Sandford, 164 U. S., 569, 592 83, 188 Crowley vs. Christensen, 137 U. S., 86 73, 91 Crutcher vs. Kentucky, 141 U. S., 47 o 155 Culbach, Ex parte, 85 Cal., 274 68 Cumming vs. Bd. of Education, 175 U. S., 528 79 Cummings vs. Missouri, 4 Wall., 277 46 Curran vs. Arkansas, 15 How., 304 130 Daniel Ball, The, 10 Wall., 537.... 149 Dent vs. West Virginia, 129 U. S., 114 57 Dartmouth College vs. Woodward, 4 Wheat. 518 104 Dartmouth College vs. Woodward, 1 N. H. Ill 118 Davenant and Hurdis, Case of, 11 Rep., 86 169 Davidson vs. New Orleans, 96 U. S., 97 26 Davis vs. State, 68 Ala., 58 114 Davis vs. Zimmerman, 98 N. Y. Sup., 489 45 Debs's Case, 158 U. S., 564 157, 168 Decker vs. R. Co., 30 Fed., 723 165 Denver vs. Bach, Colorado (1899) 56 Detroit vs. Corey, 9 Mich., 165 88 Detroit vs. Plank Road Co., 13 Mich., 140 142 ^- TABLE OF CASES CITED. Page Detroit etc. Ry. vs. Detroit, 22 U. S. App., 570; S. C, 64 Fed. 628; 60 Fed.; 168; 56 Fed., 867; 54 Fed., 1 140, 141 Diamond Match Co. vs. Roeber, 106 N. Y., 473 71 Dibbs vs. State, 39 Ark., 353 91 D. L. & W. R. R. vs. E. Orange, 41 N. J. Law, 127 97 Dow vs. Beidelman, 125 U. S., 680 113 Downham vs. Alexandria Council, 10 Wall., 173 99 Dubuque & Pac. R. R. vs. Litchfield, 13 How., 66 128 Eaton vs. Kegan, 114 Mass., 433 57 Eden vs. People, 161 111., 296 78 Edwards vs. Kearzey, 96 U. S., 595 132 Eilenbecker vs. Plymouth Co., 134 U. S., 31 48, 99 Elder vs. Whitesides, 72 Fed., 724 45 Elliott vs. Philadelphia, 75 Pa. St., 347 90 Ex parte Chin Yan, 60 Cal., 79 89 Ex parte Culbach, 85 Cal., 274 68 Ex parte Wall, 107 U. S., 289 36 Ex parte Wilson, 114 U. S., 417 38 Fanning vs. Gregoire, 16 How., 524 164 Fargo vs. Michigan, 121 U. S., 230 154 Farmers' L. & T. Co, vs. Chi. R. R., 27 Fed., 146 83 Farmers' L. & T. Co., vs. Kenning, 17 A. L. Reg., 266 144 Farmers' L. & T. Co., vs. Nor. Pac, 60 Fed., 803; 63 Fed., 310, 44, 45 F. & M. Bank vs. Smith, 6 Wheat., 131 128 Farrar vs. Close, L. R. 4 Q. B., 602, 612 45 Farrington vs. Tennessee, 95 U. S., 679 120, 131 Fecheimer vs. Louisville, 84 Ky., 306 79 Fertilizing Co. vs. Hyde Park, 97 U. S., 659 98, 124, 125 Fire Dept. vs. Atlas S. E. Co., 106 N. Y., 506 95 Fire Dept. vs. Chapman, 10 Daly, 327 96 Fischer vs. Boston, 104 Mass., 87 90 Fletcher vs. Peck, 6 Cranch, 87 105 Fletcher vs. Rylands, L. R., 1 Ex., 263 90 Fountain vs. Ravenel, 17 How., 384 139 Forsyth vs. Hamond, 166 U. S., 506, 519 119 Foster vs. Kansas, 112 U. S., 201 99 Frankford R. R. Co. vs. Phila., 58 Pa., 122 146 Froer vs. People, 141 111., 177 78 Furman vs. Nichol, 8 Wall., 44 130 Gale vs. Kalamazoo. 23 Mich., 344 88, 173 Gas Light Co. vs. Saginaw, 28 Fed., 539 88 Georgia R. R. vs. Commissioner, 78 Ga., 694 97 Georgia R. R. vs. Smith, 128 U. S., 174 139, 162 TABLE OF CASES CITED. ix Page Gibbons vs. Ogden, 9 Wheat., 208 25, 148 Gibbs vs. Baltimore Gas Co., 130 U. S., 3% 173 Gilman vs. Phila.. 3 Wall., 713 165 Gladson vs. Minnesota, 166 U. S., 427 151 Gloucester Ferry Co. vs. Penn., 14 U. S., 196 155, 164 Godcharles vs. Wigeman, 113 Pa., 431 54,64 Gordon vs. Appeal Court, 3 How., 133 129 Goszler vs. Georgetown, 6 Wheat., 593 88 Governor etc. vs. Meredith, 4 T. R., 790, 794 24, 147 Grand Trunk Ry. vs. Backus, 46 Fed., 216 166 Great Northern R. R. case, 161 U. S., 646 189 Greenwood vs. Freight Co., 105 U. S., 13 136 Gulf etc. Ry. vs. Ellis, 165 U. S., 150 75, 172 Gut vs. State, 9 Wall., 35 47 Hall vs. DeCuir, 95 U. S., 485 151 Hallinger vs. Davis, 146 U. S., 314 81 Hamilton Gas Co. vs Hamilton, 146 U. S., 258 136 Hancock vs. Yaden, 121 Ind., 366 55 Hartford Ins. Co. vs. Chicago etc. Ry., 175 U. S., 101 97 Hartman vs. Greenhow, 102 U. S., 672 132 Hawker vs. New York, 170 U. S., 189 47 Hawthorne vs. Calef, 2 Wall., 10 130 Hays vs. Comonwealth, 82 Pa. St., 518 137 Hayes vs. Missouri, 120 U. S., 366 58, 81 Henkel vs. Detroit, 49 Mich., 249 94 Hennington vs. Georgia, 163 U. S., 299 151 Hockett vs. State, 105 Ind., 258 115 Hodgson vs. Vermont, 168 U. S., 262, 272 38 Holden vs. Hardy, 169 U. S., 366 22, 59, 72, 172 Holyoke Co. vs. Lyman, 15 Wall., 525 145 Home etc, vs. Rouse, 8 Wall., 430 131 Hooper vs. California, 155 U. S., 652 143 Hopkins vs. Oxley Stave Co., 83 Fed., 912 45 Hopkins vs. U. S., 171 U. S., 578 164, 174 Howard vs. Bugby, 24 How., 461 130 Hurlburt vs. McCune, 55 Ct, 31 90 Hurtado vs. California, 110 U. S., 516 38 111. C. R. R. vs. Chicago, 176 U. S., 646 123 111. C. R. R. vs. Illinois, 163 U. S., 142 35, 123, 151 In re Sawyer, 124 U. S., 200 50 In re Rahrer, 140 U. S., 543 152, 159 Income Tax Case, 157 U. S., 429 181 Income Tax Case, 158 U. S., 601 181 Indianapolis vs. C. R. Co., 83 Fed., 529 140 J TABLE OF CASES CITED. Page Indianapolis vs. Navin, 47 N. E. Rep., 525 140 Indianapolis R. R. vs. State, 37 Ind., 4S9 144 Insurance Co. vs. Clements, 140 U. S., 226 69 Iowa Cent. Ry. vs. Iowa, 160 U. S., 329 37 Jacobs, Matter of, 98 N. Y., 98 177 Jamieson vs. N. Y. Gas Co., 28 N. E. Rep., 76 87 Jefferson Bank vs. Skelly, 1 Black, 436 120 Jeffersonville Co. vs. Hendrick, 41 Ind., 48 80 Johnson vs. Symington, 43 Cal., 242 94 Juniata Limestone Co. vs. Fagley, 187 Penn., 193 76 Kemmler's case, 136 U. S., 436 39 Kentucky R. R. Tax case, 115 U. S., 321 81 Kidd vs. Pearson, 128 U. S., 26 27, 99, 161 Knatchbull vs. Hallatt, L. R., 13 Ch. Div., 610 45 Koshkonong vs. Burton, 104 U. S., 668 132 Kring vs. Missouri, 107 U. S., 221 47 Kuhn vs. Detroit, 70 Mich., 534 66 Laclede etc. Co. vs. Murphy, 170 U. S., 78 133 Lafferty vs. C. & W. M. R. R., 71 Mich., 35 57 Lake vs. Aberdeen, 57 Miss., 260 89 Lake Shore & M. S. R. R. vs. Ohio, 173 U. S., 285 35, 151 Lake Shore & M. S. R. R. vs. Smith, 173 U. S., 684 78 Lawton vs. Steele, 152 U. S., 133 34 Leeper vs. Texas, 139 U. S., 462 37 Lee Sing, Matter of, 43 Fed., 359 92 Leisy vs. Hardin, 135 U. S., 100, 128 67, 98, 159 Leloup vs. Port of Mobile, 127 U. S., 640 155 License cases, 5 How., 504 158, 159 Lindsay etc. Co. vs. Mullen, 176 U. S., 167 164 Lockhaven Br. Co. vs. Clinton Co., 157 Pa., 379 58 Long's Appeal, 87 Pa., 114 145 Lord vs. S. S. Co., 102 U. S., 541 157 Lough vs. Outerbridge, 143 N. Y., 271 44 Louisiana vs. Mayor, 109 U. S., 285 122 Louisiana vs. Pillsbury, 105 U. S., 295 121 Louisiana vs. Texas, 176 U. S., 1 87, 150 Louisville vs. Id., 92 Ky., 233 56 Louisville & N. R. R. vs. Palmer, 109 U. S., 244 120 Louisville R. R. case, 161 U. S., 677 189 Luman vs. Ilitchins Bros. Co., Md„ (Nov. '99) 56 McAllister vs. State, 72 Md., 396 178 McCall vs. California, 136 U. S., 104 155 McCracken vs. Haywood, 2 How., 608 129 Mcllvaine vs. Brush, 142 U. S., 156 39 TABLE OF CASES CITED. xi Page Magoun vs. Illinois Bank, 170 U. S., 283 74 Maine vs. Grand Trunk Ry., 142 U. S., 217 155 Matter of Jacobs, 98 N. Y., 98 177 Marx's case. 99 N. Y., 377 177 Marye vs. B. & O. R. R., 127 U. S., 177 154 Matter of Lee Sing, 43 Fed., 359 92 Mason Co. vs. Nain Coal Co., 87 Ky., 467 51 Mason vs. Walton, L. R., 4 Q. B., 72, 93 14 Matter of Chesebrough, 78 N. Y., 332 86 Maxwell vs. Dow. 176 U. S., 581 38, 39, 173 Merchants' Bank vs. Penn., 167 U. S., 463 73 Miller vs. Horton, 152 Mass., 540 90 Milhau vs. Sharpe, 78 N. Y., 332 88 Millett vs. People, 117 111., 294 54 Milw. & St. P. R. R. vs. Minn., 134 U. S., 418 57 Mink vs. Hopeman, 87 111., 450 50 Minn. Co. vs. Herrick, 127 U. S., 210 81, 82 Missouri vs. Lewis, 101 U. S., 22 52, 82 Missouri Pac. R. R. vs. Humes, 115 U. S., 512 145 Missouri Ry. vs. Mackay, 127 U. S., 205 81 Missouri vs. McCann, 174 U. S., 580 53 Mobile & O. R. R. vs. Tenn., 153 U. S., 486 120, 133 Mogul Steamship Co. vs. McGregor, L. R., 15 Q. B., 476 44 Mohler, The, 21 Wall., 235 165 Monon Nav. Co. vs. U. S., 148 U. S., 312 126 Monopolies, Case of, 11 Reports, 85 169 Moore vs. Illinois, 14 How., 13 46 Morgan Co. vs. La. Board, 118 U. S., 462 150 Morgan Re, 47 L. R. A., 52 65 Mormon Church vs. U. S.. 136 U. S., 1, 57 20, 139 Morris vs. Columbus, 104 Ga.. 792 89 Morse vs. Worcester, 139 Mass., 389 88 Mugler vs. Kansas, 123 U. S., 623 85, 90, 99, 175 Munn vs. 111., 94 U. S., 113, 142 67, 106, 127, 134, 178 Murray vs. Charleston, 96 U. S., 432 122, 131 Munroe vs. Meuei, 35 La. Ann., 1192 51 Murdock vs. Walker, 152 Penn. St., 595 163 Nash vs. State, 80 Ky., 545 114 Nashville Ry. Co. vs. MacNiel, 82 Fed., 65, 87 45 Neagle, Re, 135 U. S., 1 41 Nelson vs. St. Martin, 111 U. S., 716 132 New Brunswick R. R., Re, 1 P. & B., 667 144 New Jersey vs. Wilson, 7 Cranch., 164 105 New Jersey vs. Yard, 95 U. S., 104 131 2^1 TABLE OF CASES CITED. Page New Orleans Gas Co. vs. La. Light Co., 115 U. S., 650 99, 132 New Orleans vs. Houston, 119 U. S., 265 99 New Orleans W. W. Co. vs. Rivers, 115 U. S., 674 133 New Orleans W. W. Co. vs. Sugar Co., 125 U. S., 118 120 Newton vs. Commissioners, 100 U. S., 584 135 New York & N. E. R. R. vs. Bristol, 151 U. S., 556 181 New York vs. Miln, 11 Peters, 102 158 New York Cent. R. R. vs. People, 12 Hun., 195 144 New York Cent. R. R. vs. People, 74 N. Y., 342 144 Norfolk R. R. vs. Penn.. 136 U. S.. 114 155 Northw. Mfg. Co. vs. Wayne Judge, 58 Mich., 381 178 Olcott vs. Supervisors, 16 Wall., 678 144 Old Colony Trust Co. vs. Atlanta, 83 Fed., 39 140 Old Colony Trust Co. vs. Atlanta, 88 Fed., 859 140 Oliver vs. Washington Mills, 11 Allen, 268 80 Omaha etc. Ry. Co. vs. Cable Co., 30 Fed., 324 88 O'Neil vs. Vermont, 144 U. S., 323 42 Oregon etc. Co. vs. Oregonian Co., 130 U. S., 1 102, 128 Orient Ins. Co. vs. Daggs, 172 U. S., 557. 74 Pacific R. R. vs. McGuire, 20 Wall., 36 131 Palmer vs. McMahon, 133 U. S., 660 73 Palmer vs. State, 39 Ohio St.. 236 178 Park vs. Free Press Co., 72 Mich., 560 79 Parker vs. Railroad Co., 109 Mass., 506 138 Passaic Bridge cases, 3 Wall., 782 165 Passenger cases, 7 How., 283 158 Patapsco Guano Co. vs. N. Carolina, 171 U. S., 345 159 Patterson vs. Kentucky, 97 U. S., 501 35, 91, 179 Paul vs. Virginia, 8 Wall., 168 143 Pauley vs. Steam Co., 131 N. Y., 90 57 Pearson vs. Yewdall, 95 U. S., 294 38 Peik vs. C. & N. W. R. R., 94 U. S., 164 106 Peirce vs. New Hampshire, 5 How., 583 26 Pembina etc. Co. vs. Penn., 125 U. S., 181 143 Penn. Ry. Co. vs. B. & N. Y. Ry. Co., 37 Fed., 129 165 Penn. R. R. vs. Lutheran Cong., 53 Pa., 445 40 Penn. R. R. vs. St. Louis Co., 118 U. S., 290 102 People vs. A. & V. R. R., 24 N. Y., 261 145 People vs. Bellet, 99 Mich., 151 78, 174 People vs. Brooks, 16 Cal., 11 51 People vs. B. & A. R. R., 70 N. Y., 569 144 People vs. Chi etc. Gas Co., 130 111., 268 173 People vs. Cipperly, 101 N. Y., 634 36 People vs. D. & C. R. R., 58 N. Y., 152 144 TABLE OF CASES CITED. xiii People vs. Gillson, 109 N. Y., 389 177 People vs. Hawkins, 157 N. Y., 1 183 People vs. Nelson, 133 111., 565 80 People vs. North Sugar Co., 21 N. Y., 582 173 People vs. O'Brien, 111 N. Y., 1 141 People vs. Phippen, 70 Mich., 6 SO People vs. Plank Road, 9 Mich., 285 142 People vs. Rochester etc. R. R., 14 Hun, 373 144 People vs. Smith. 108 Mich.. 531 177 People vs. Standard Oil Co., 49 Ohio St., 137 173 People vs Walsh, 6 N. Y. S. R., 554 116, 177 Perkins vs. St. L. R. R., 103 Mo., 25 57 Pervear vs. Comonwealth, 5 Wall., 475 48 Petit vs. Minn., U. S.. S. C. 1900 78 Phalon vs. Virginia, 8 How., 163 98 Philadelphia vs. W. U. Tel. Co., 40 Fed., 615 163 Philadelphia Fire Ass'n. vs. New York, 119 U. S.,110 82 Philadelphia S. S. Co. vs. Penn., 122 U. S., 326 154 Pickard vs. Pullman Co., 117 U. S., 34 154 Pierson vs. Portland, 69 Me., 278 79 Pingree vs. Mich. Cent. R. R., 118 Mich., 314 Ill, 133 Piscataqua Bridge case, 7 N. H., 69 135 Pittsburgh R. R. vs. Backus, 154 U. S., 421 42 Plessy vs. Ferguson, 163 U. S., 537 81, 151 Plumley vs. Mass., 153 U. S., 461 176 Pound vs. Turck, 95 U. S., 459 164 Powell vs. Penn., 114 Pa. St.. 265 90, 175 Powell vs. Penn.. 127 U. S.. 670 90, 175 Prigg vs. Penn., 16 Pet.. 539, 628 25, 158 Printing Co. vs. Sampson, L. R., 19 Eq. Cas., 462 53 Prosser vs. N. P. R. R., 152 U. S., 64 166 Pullman Car Co. vs. Penn., 141 U. S., 18 154 Radcliffe vs. Mayor etc., 4 N. Y., 195 90 Rahrer, In re, 140 U. S., 543 152, 159 Railroad Commission Cases, 116 U. S., 307 97 Railroad Com'rs. vs. Portland R. R.. 63 Me., 269 97 Railroad Co. vs. Alabama, 128 U. S., 96 150 Railroad Co. vs. Husan, 95 U. S., 465 149 Railroad Co. vs. Jacksonville, 67 111., 37 96 Railroad Co. vs. Lockwood, 17 Wallace, 357 53 Railroad Co. vs. Maryland, 21 Wall. 456 101, 145 Railway vs. Id., 30 Ohio St. 604 113 Ratterman vs. W. U. Tel. Co., 127 U. S. 411 155 Reagan vs. Farmers' L. & T. Co., 154 U. S. 362 109, 153 xiv TABLE OF CASES CITED. Page Re Morgan, 47 L. R. A. 52 65 Re Neagle, 135 U. S. 1 41 Re Christensen, 43 Fed. 213 36 Rex vs. Cambridge Tailors, 8 Mod. 11 43 Rex vs. Severn & Wye. R. R., 2 B. & A. 646 144 Re N. B. etc. R. R., 1 P. & B. 667 144 Reynolds vs. U. S., 98 U. S. 145 48 Reynolds vs. Everett. 144 N. Y. 189 168 Rhea vs. Newport Co., 50 Fed. 16 166 Rideout vs. Knox, 148 Mass. 368 27 Roberts vs. Boston, 5 Cush. 198 81 Robertson vs. Baldwin, 165 U. S. 275 65 Roby vs. Smith, 131 Ind. 342 83 Rothermel vs. Meyerle, 136 Pa. 250 79 Royal vs. Virginia, 116 U. S. 592 122 Ruggles vs. People, 91 111. 256 113 St. Louis vs. Hill, Mo. (S. C, '93) 59 St. Louis R. R. vs. Williams, 49 Ark. 492 78 San Ant. R. R. vs. Wilson, 4 Tex. Civ. App. 323 57 Sands vs. Manistee Co., 133 U. S. 288 164 Sanders vs. Ins. Co., 44 N. H. 238 101 Sanders Re, 52 Fed. 802 163 San Diego Land Co. vs. Natl. City, 174 U. S. 739 156 Sawyer vs. Davis, 136 Mass. 239 114 Sawyer, In re. 124 U. S. 200 50 Schollenberg vs. Penn., 171 U. S. 1 178 Scott vs. Donald, 165 U. S. 58 161 Seifert vs. Brooklyn, 101 N. Y., 136 88 Shaver vs. Penn. Co., 71 Fed. 931 69 Sherry vs. Perkins, 147 Mass. 212 44 Shoe Co. vs. Saxey, 131 Mo. 212 45 Sinking Fund Cases, 99 U. S. 747 112, 119 Six Carpenters' case, 8 Coke 147 57 Slaughter House cases, 16 Wall. 36 27, 54, 72, 98, 167, 169 Slidell vs. Grandjean, 111 U. S. 412 128 Sloan vs. Pacific R. R., 61 Mo. 24 97 Smith vs. Rochester, 76 N. Y. 506 90 , Smith vs. Alabama, 124 U. S. 465, 478 53 Smyth vs. Ames, 169 U. S. 466 109, 153 Society etc. vs. New Haven, 8 Wheat. 464 129 Soon Hing vs. Crowley, 113 U. S. 763 63 South Ala. R. R. vs. Morris, 64 Ala. 193 77 So. Cal. Ry. Co. vs. Rutherford, 62 Fed. 796 45 Southern R. R. vs. Gebhard, 109 U. S. 527 21 TABLE OF CASES CITED. xy Spies vs. Illinois, 123 U. S. 131 39 Springhead vs. Riley, L. R., 6 Eq. 551 43 Spring Val. W. Wks. vs. Schottler, 110 U. S. 347 112 State vs. Addington, 77 Mo. 110 178 State vs. Am. Powder Co., 50 N. J. Law, 75 93 State vs. Ashbrook, 55 S. W. Rep. 642 82 State vs. Broadbent, Md. ('99) 56 State vs. Bates, 14 Utah, 293 39 State vs. Chi. & St. P. Ry., 2 Int. Com. R. 519 149 State vs. Coal Co., 33 W. Va. 188 55, 68 State vs. Goodwill, 33 W. Va. 179 54 State vs. Greer, 78 Mo. 188 137 State vs. Green, 112 Ind., 462 57 State vs. Glidden, 53 Conn. 46 168 State vs. H. & N. H. R. R., 39 Conn. 538 144 State vs. Hinman, 65 N. H. 103 57, 80 State vs. Jackson, N. H. ('98) 73 State vs. Julow, 31 S. W, Rep. 781 68 State vs. Laverack, 34 N. J. Law. 201 94 State vs. Loomis, 115 Mo., 307 56, 75 State vs. N. E. R. R., 9 Richardson, 247 144 State vs. Standard Oil Co., 49 Ohio St. 137 173 State vs. Wagener, Minn. ('99) 56 State vs. Wheeler, 44 N. J. Law, 88 93 State vs. White, 9 N. E. Rep. 867 50 State Bank vs. Knoop, 16 How. 369 130 State Freight Cases. 15 Wall. 232 148, 154 State Railroad Tax cases, 92 U. S. 575 73 State Tax on R. R. Gross Receipts, 15 Wall. 284 154 Sternberger vs. Railway, 2 Int. Com. R. 426 149 Stevedore's Assn. vs. Walsh, 2 Daly (N. Y.), 1 43 Stockton vs. B. & N. Y. R. R., 32 Fed. 9 157 Stockton Laundry case, 26 Fed. 611 92 Stoudinger vs. Newark, 1 Stewart (N. J.) Eq. 446 86 Stone vs. Miss.. 101 U. S. 814 98, 99, 124 Stone vs. Wis., 94 U. S. 181 106, 125 Strauder vs. W. Va., 100 U. S. 303 40 Swartow vs. Com., 74 Pa. 131 38 Sullivan vs. Hovey, 82 Mich. 451 52 Talcott vs. Pine Grove, 1 Flippin, 144 145 Telegraph Co. vs. Texas, 105 U. S. 460 154 Telegraph Co. vs. Alabama, 132 U. S. 472 155 Tennessee vs. Davis, 100 U. S. 300 41 Texas Pac. Ry. vs. Int. St. Com., 162 U. S. 192, 218 17 xvi TABLE OF CASES CITED. Page Texas VS. White, 7 Wall. 725 32 Texas vs. Davis, 100 U. S. 300 33 Thatcher vs. Maine Cent. R. R., 85 Me. 502 56 Thomas vs. Cin. Ry. Co., 62 Fed. 803 45 Thomas vs. Railroad, 101 U. S. 71 102, 135 Thompson vs. Utah, 170 U. S. 343 39 Tiernan vs. Rinker, 102 U. S. 123 99 Tinsley vs. Anderson, 171 U. S. 101 81 Toledo etc. R. R. vs. Tenn. R. R., 54 Fed. 730 43 Topeka vs. Boutwell, 53 Ks. 20 51 Transp. Co. vs. Wheeling, 99 U. S. 273 154 Twelfth St. Market Co. vs. R. R. Co., 142 Pa. St, 80 94 Tyroler's case, 48 N. Y. S. 1093 181 Union Canal Co. vs. Gilfillin, 93 Penn. 95 101, 145 United States vs. Bellingham Co., 176 U. S. 211 166 United States, vs. Debs, 64 Fed. 724 45 United States vs. DeWitt, 9 Wall. 41 87 United States vs. Dougherty, 101 Fed. 439 179 United States vs. E. C. Knight, Col., 56 U. S. 1 179 United States vs. Elliott, 62 Fed. 801 45 United States vs. New Orleans, 98 U. S. 381 140 United States vs. Perkins, 163 U. S. 625, 628 74 United States vs. Workingmen's Council, 54 Fed. 994 45 University vs. People, 99 U. S. 309 132 Usill vs. Hules, 3 C. P. D. 325 14 Van Etten vs. Eaton, 19 Mich. 187 103 Von Hoffman vs. Quincy, 4 Wall. 535 130 Van Swartow vs. Cora., 24 Pa. 131 38 Van Zant vs. Waddell, 2 Yerger, 260 76 Vegelhahn vs. Guntner, 167 Mass. 92 44 Vetaloro vs. Perkins, 101 Fed. 393 82 Vick vs. Rochester, 46 Hun. 607 86 Virginia Coupon cases, 114 U. S. 269 132 Wabash R. R. vs. Illinois, 118 U. S. 557 148, 188 Wadsworth vs. U. P. R. R., 18 Colo. 600 57 Walker vs. Sauvinet, 92 U. S. 90 37 Walla Walla City vs. W. Water Co., 172 U. S. 1 133 Wall, Ex parte, 107 U. S. 289 38 Wallston vs. Nevin, 128 U. S. 578 80 Wallworth vs. Holt, 4 Mylne & Craig, 635 45 Walsh vs. Bowen, 103 Ind. 257 88 Ward vs. Farwell, 97 111. 693 142 Warren vs. Sohn, 112 Ind. 213 81 Washington Univ. vs. Rouse, 8 Wall. 442 121 TABLE OF CASES CITED. ^VU Page Waterbury vs. Newton, 50 N. J. L., 534 178 Webster Telephone case, 17 Neb. 126 114 Welton vs. Missouri, 91 U. S., 282 148 Welsh vs. Stowell, 2 Doug. (Mich.), 332 88, 96 West River Bridge Co. vs. Dix, 6 How. 507 139, 147 Western U. Tel. Co. vs. Alabama, 132 U. S. 472 155 Western U. Tel. Co, vs. Indiana, 165 U. S. 304 73 Western U. Tel. Co. vs. Mass., 125 U. S. 530 154 Western U. Tel. Co. vs. New York, 38 Fed. 552 163 Western U. Tel. Co. vs. Pendleton, 122 U. S. 347 152 Wheeling Bridge case, 18 How. 421 165 White vs. Hart, 13 Wall. 646 131 Wilder vs. C. & W. R. R., 70 Mich. 382 77 Willamette, etc. Co. vs. Hatch, 125 U. S. 1 165 Williams vs. Miss., 170 U, S. 213, 225 84 Willy vs. Mulledy, 78 N. Y. 310 96 Wilmington R. R. vs. Reid, 13 Wall. 264 131 Wilson vs. Blackbird C. M. Co., 2 Pet. 245 150, 166 Wilson Ex parte, 114 U. S. 417 38 Winchester vs. Turnpike Co., 33 L. R. A. 177 Ill Winona & St. P. R, R. vs. Blake, 94 U. S. 180 106 Woodruff vs. Miss., 162 U. S. 291 68 Woodruff vs. Trapnall, 10 How. 190 129 Woolston vs. Zouch, 2 Burrows, 1147 3 Wright vs. Nagle, 101 U. S. 793 120 Wunderle vs. Id., 144 111. 40 56 Wurtz vs. Hoagland, 114 U. S. 606 81 Wynehamer vs. People, 13 N. Y. 457 40, 176 Yarbrough's case, 110 U. S. 651 20 Year Book, 3, 5, 18 Edward II 7 Year Book, 46, 48 Edward III 7 Year Book, 21 Edward IV.... 7 Year Book, 36 Edvvard VI • 7 Year Book, 7 Henry IV 7 Yick Wo vs. Hopkins, 118 U. S. 356 36, 63, 67, 84, 92 THE POLICE POWER OF THE STATE DECISIONS THEREON AS ILLUSTRATING THE DEVELOPMENT AND VALUE OF CASE LAW. CHAPTER I. DEVELOPMENT OF THE LAW IN GENERAL. The making of our law is, and always has been, progressive. Civilization, that is, human improve- ment, advances; and law is a great part of civiliza- tion. The jurisprudence of one age is history in a later. Our law was originally called the customary law. It sprang from the sense of justice and the power of reasoning implanted in man by his Maker. Who set forth reason and justice, in their application to the affairs of men? This has been done by the judges from the earliest time in Britain, down to the present time in America. It has been done when de- ciding particular facts in actual controversies. The genius of English-speaking people is intensely prac- tical. They have always treated law as a business and not as a theory. They have been chary of estab- lishing rules of conduct in advance, and have pre- ferred that such rules should be unfolded from actual 1 2 DEVELOPMENT OF THE LAW IN GENERAL. facts, which necessarily create the law to he ex- pounded. The judges have, indeed, in reaching the disposition of the case, not infrequently given rea- sons and explanations, and stated principles; but this has been done in the way of opening out the legal relation of the facts, and not in the way ot declaring general rules. Nor have the English judges, parliament, or people ever favored codet- making. Let us illustrate by a modern case in the Queen's Bench, where the judgment was by a gifted and emi- nent judge. Sir John Taylor Coleridge, in 1858. Blakemore's administrator brought an action for an injury sustained by Blakemore which caused his death. The railroad company had stipulated that consignees of goods should unload them at the sta- tion, and be allowed the free use of a crane, which was unsafe as the company knew; and the crane broke, killing the decedent, who was helping unload. The company's defense was, that the use was gratuit- ous, but the judge held that there was a liability for themischief resulting from the company's knowledge of the unsafe condition of the article lent. The judge could find no authority in the English reports, or treatises, but he found the principle in the Eoman law, and said: "This is so consonant to reason and justice that it cannot but be a part of our law."^ A century earlier, a question arose as to the con- 1 Blakemore v. B. & E. R. R., 8 E. & B. 1051. DEVELOPMENT OF THE LAW IN GENERAL. 3 struction, force and effect, of a power, presented in a case on a special verdict in ejectment; and the great Mansfield said, in the King's Bench, after referring to several precedents: "But there are no precedents which can stand in the way of our determining this case liberally, equitably, and according to the inten- tion of the parties."^ In the year 1756, referring to the cases of that period, Mr. Burrows, the reporter, said: "The authority of right judgments, on right principles, given unanimously, by judges who add weight and dignity to the highest offices, instead of deriving any from them, is so great, that the point determined becomes a rule forever." Lord Esher, on November 15, 1897, in replying to the address of the Attorney-General on the occasion of Lord Esher's retiring from the great oflflce of Mas- ter of the Rolls, said: "The duty of the judge is to find out what is the rule which people of candor and honor and fairness in the position of the two parties would apply in re- spect to the matter in hand. That is the common law of England, and there is no other law. It is not only the common law, but if we go to equity it is the same thing. The law of England is not a science; it is a practical application of the rules of right and' wrong to the particular case before the court. And the canon of law is, that that rule should be adopted and applied to the case which people of honor and aWoolston v. Zouch, 2 Burr. 1147. 4 DEVELOPMENT OF THE LAW IN GENERAL. candor and fairness in such a transaction would ap- ply to each other. Now, if that be so, if any supposed rule of law is put forward which would prevent the rule of right being applied, the supposed rule of law must be wrong; and if it ever be alleged that the law will prevent the truth being established and oblige the court to say that that is not true which is true, — if ever any such rule of law is attempted to be put forward, it must be wrong, and I have always said so. Now, what the rules of right and wrong in the particular case are, must be determined in each particular case; but nobody can have read the re- ports of decisions of great judges from the earliest times in England without trying to find in those re- ports, the mode and manner in which those judges have stated the rule of conduct of the court, and that is what is called authority. But no decision, — at least in my opinion, — of any judge as to the rule of law, other than in an Act of Parliament, can compel any court now to say that they were prevented from deciding that to be true which was in reality not true; there is no such thing in the law as a rule which says that the court shall determine that to be true which the court believes and knows to be un- true." Britain was a province of the Roman Empire for nearly five hundred years. Then followed the Saxon invasion. Many centuries after the Saxons came the Normans. The development of our law began during the long period of the Roman occupation, DEVELOPMENT OF THE LAW IN GENERAL, 5 which left an indelible impress. During that time the refined jurisprudence of Rome attained its fullest development; and it is now generally considered that from that jurisprudence we derive the better prin- ciples of our law. It has been said that the history of our law from the time of the Saxons is a history of the struggles between the principles of reason, represented by the Roman law, and the principles of custom, represented by the usages of the bar- barians. For example, the principle that what long use sanctions becomes law without being written, is of Roman origin.^ So, the principle that a man may not repossess himself of his property by force, but must use process of law.* Trial by jury itself, gen- erally thought to be the one legal institution of purely British origin, really was the product of the Roman system of trial, according to Montesquieu,'' and according to Phillimore.® The Roman jurors, called judices, answered the questions of fact, and the Roman praetors, corresponding to our judges, answered the questions of law, just as in our still ex- isting system in England and America. The law concerning municipalities may be traced to a dis- tinctly Roman origin. Judicial legislation, for such in reality is the de- ciding of cases by judges, began to be known as early as the age of Alfred. Such legislation was 3 Justinian, lib. i, tit. ii, s. 59. c Sp. of L., xi, c. 18. 4 Lib. iv, tit. 15. e int. to Rom. L., 17, 19. Q DEVELOPMENT OF THE LAW IN GENERAL. then a branch of executive authority; and that amiable prince, it is related in the Mirror of Justice, hanged forty-four judges in one year for rendering judgments not according to his notions of reason and justice. It was not, however, until the commence- ment of the issue of annual reports called the Yean Books, that judicial legislation took on what is sub- stantially its existing form. This was the time ex- tending from Edward II. to Henry VIII. It may be said that the era of our modern law began with the reign of his daughter Elizabeth, — that reign so fruit- ful of marvels, in arms, navigation, literature and law. But to understand the post-Elizabethan law, it is necessary to study the previous development. The general distinction between the periods is, that in the former the ownership of land was the passport and patent of respect, and the principal subject of litigation, while the latter is marked by the rise and predominance of the commercial spirit; and now: vast wealth is in the form of personal property, which is chiejfly litigated about, and a piece of land is transferred with as little formality as a horse. The books of the law began to be in English, and to be printed, in the fifteenth century, and the de- velopment of our law was then greatly facilitated. In the Year Books began the great improvement of putting spoken law into writing. The reporters were employed and paid by the crown, to take notes in the courts, and publish them annually. Very much of our received law^ is found in these publications. DEVELOPMENT OF THE LAW IN GENERAL. 7 For example, the law that the sheriff cannot breaJi the outer door of a dwelling to levy an execution/ The point of the Six Carpenters' Case,^ that one who abuses an authority in law, is to be deemed a tres- passer from the beginning, was determined a hun- dred and thirty years before.^ The law that ratifica- tion is equivalent to previous authority, is found very early.^^ The maxim, res inter alios acta non nocet." Modus et conventio vincunt legem.* ^ Novo casu novum remedium.*^ These maxims the judges adopted from the Roman law, and made them Eng- lish law, because they reflect reason and justice. Ac- tion of account for money received on sale of plain- tiff's goods.** Action on the case against a farrier for laming a horse.*^ Action on the case against a surgeon for malpractice.*^ Statements of principles when made by the judges, have been in reality, statements of what should gov- ern the particular facts, and should always be read with reference to those facts. Such general state- ments are frequently found not to govern other facts. We have now seen that the method of the develop- ment of our law has been, first and foremost, by ju- dicial declaration, which has always been treated as the equivalent of legislation, and has, in reality, been TYear B., 18 Edw. IV., fol. 19. 12 Year B., 5 Edw. II, 161. s 8 Coke, 147. 13 Year B., 18 Edw. II, 400. » Year B., 21 Edw. IV, fol. 19, i* Year B., 46 Edw. Ill, fol. 3. pt. 22. 15 Year B., 36 Edw. VI, fol. 10 Year B., 7 Hen. IV, fol. 35. 19. 11 Year B., 3 Edw. II, 53. le 48 Edw. Ill, fol. 6. 8 DEVELOPMENT OF THE LAW IN GENERAL. legislation itself. A second method of developing pur law has been by juristic writings. That is to say, studious lawyers have examined the decisions of the judges, extending over centuries, — and a century is a short time in the growth of our law, — and have ex- tracted, classified and arranged the principles con- ceived to underlie the disposition of the actual cases; and have commended some and condemned others; and have accordingly contributed somewhat to ren- der our law a science, as well as an art. The com- posers of these juristic writings have also reflected the national English trait of not theorizing about law, and have in general, merely stated law which had been developed and enforced in actual contro- versies. These treatises have supplemented the ad- judications, by pointing out and explaining grounds and analogies as might have been done by the au- thors of the adjudications. The reflex influence of the law-writers upon the judge and also upon the legislator has been great and beneficial, so much so, indeed, that many of the authors of our text-books, from Bracton to Cooley, may well be termed develop- ers of our law. They develop the law by teaching those who have the power to declare and to enact. The field of usefulness of such writers is already very- wide, but is capable of great expansion. Indeed, we must rely mainly on individual labor for any great improvement in the law. A third method of the developing of our law is, and has always been, professional opinion. The legal DEVELOPMENT OF THE LAW IN GENERAL. 9 body, from the earliest ages, has been the depository of law-learning, and has been so recognized by the mass of the people of every condition; and from it the bench is constantly recruited. Their advice, in every local community, has shaped actual transac- tions, and disposed of them. Often the whole busi- ness life of a particular locality has formed itself upon it. When affairs arising under such circum- stances have come into litigation, judicial judgment has almost certainly followed the prior professional view. Under all circumstances, the reasoning, ar- guments, analogies, and illustrations, supplied by the opposing counsel before the judges, have con- tributed as much, or more, to the ultimate result, as the reflections, examinations and conferences of the judges themselves. Counsel have, indeed, better op- portunities for studying the particular controversy than the judges can possibly have, hearing the facts as they do for the first time in the hurry and press of business. So that one chief care of counsel is to see that the judges possess themselves of the facts accurately and thoroughly. It is certainly true that English-speaking people have always valued, and supported, an upright, watchful and intelligent bar; and have relied upon them to advise the people, the legislature and the courts. The courts uniformly do lean, and must lean, upon the bar; and the memor- able case of parliament applying to John Selden for advice was by no means a single instance. In gen- eral, the bar has shown itself worthy of the confi- 10 DEVELOPMENT OF THE LAW IN GENERAL. dence reposed in it. To so great a degree is the bar responsible for the decisions of the courts, that Jer- emy Bentham, in his diatribes against what he calls judge-made law, includes the bar as associate mak- ers, and uses the derisive phrase "Judge & Co." to designate the makers of judiciary law. By far the greater part of our law has been and is developed in the three ways already pointed out, by the judges, the jurists and the bar; and this greater part of our law has been developed after men have acted, and in determining the effect of their actions. But there is a fourth method of developing our law beforehand; that is, the enactment of the Legisla- ture, setting out general rules of conduct, to be ob- served subsequently. This method is generally meant when lawmaking is spoken of, although it is, in reality, the least important method of lawmaking. There is a series of great historical statutes passed in the mother country, from century to century, to cure supposed defects, as occasion has arisen. And this process of statutory development from time to time, is also illustrative of the marked national trait of the people of Britain, heretofore referred to, of looking at things in a practical, business way, and avoiding theoretical action. A single statute can be viewed by a legislative body independently, and on its own merits, and therefore, intelligently and justly; while a mass of legislation, called a code, can only be cre- ated by a commission and adopted bodily by the Legislature. Such a mass, called a code, will reflect DEVELOPMENT OF THE LAW IN GENERAL. H the theories of the framers, and does not spring from the judgment of the representatives of the people, exercised upon special instances and needs, calling for early relief. The latter method of development has always been, and is now, the English method. Where single statutes, upon the same or related sub- jects, have accumulated, they have been re-written, reduced, and consolidated into one statute. The tone of development by statute has always been hostile to any attempt at a codification of the w^hole mass of the law, and parliament has confined itself, as above stated, to the process of digesting enactments relat- ing to one subject, as occasion has demanded. An early example of this is the Statute of Laborers and 'Artiflcers,^^ which recites that there stand in force a great number of acts which, partly for their imper- fection and contrariety, and partly for the variety, and number of them, cannot be put in due execution, so the substance shall be digested and put in one sole law and statute. This statute was enacted un- der the police power. In 1592, Bacon unsuccessfully proposed, in the Commons, a plan to amend, condense and consoli- date the whole body of English law. In the time of the commonwealth a commission was created com- posed of learned men, and members of the House of Commons, including the great names of Cromwell and Hale, which sat for five years; and, after the 17 5 Eliz. c. 4. 13 DEVELOPMENT OF THE LAW IN GENERAL. restoration, there was another commission, made up of fifty-one members; and, in 1828 and 1844, similar movements were made; but little or nothing of im- portance came from any of them. We may justly in- fer that the striking indisposition of the people of the mother country to adopt anything not confirmed by the development of centuries and approved by actual use in the affairs of men, lay at the bottom of all these attempts at a sort of codification. It is highly probable that this indisposition will continue. It is the product of eight or ten centuries. But the habit of alteration and correction by in- dividual statutes, and the habit of consolidating such statutes upon related subjects, has been kept up from Elizabeth to Victoria, and has been followed in America. A modern English example is found in the Eailway and Canal Traffic Act of 1852, regu- lating a portion of the law concerning carriers. This act, moreover, illustrates in a remarkable manner the predilection of the English people for the system of making law by judges, according to the require- ments of the particular facts. The act provides that notices and conditions, made by common carriers, shall be void, unless the individual judge, at the trial, shall deem the notice just and reasonable. In other words, this statute of the last half of the nine- teenth century, expressly authorizes the judges tol do just what they have practically been doing from a time anterior to the Year Books; namely, to decide the controversy according to reason and justice. DEVELOPMENT OF THE LAW IN GENERAL. 13 This statute is not a set of rigid and inflexible rules, incapableof adaptation to new combinations of facts. It is impossible to formulate an}' rule or principle which will be of universal application. Another modern instance of development by digesting ap- pears in the English act of 18S2, as to bills and notes. This statute codifies the technical and statutory, rules on the subject, but makes no attempt to cover the whole law relating to it. On the contrary, it de- clares that the existing law shall remain, when not inconsistent with the digested statute. This topic of commercial paper furnishes a con- spicuous example of how our law has been de- veloped. The merchants first established such cus- toms as the convenience of their business required. Mansfield, the head of the court of the King's Bench, took up these customs and made them the law of the land by his decisions. Then parliament passed statutes, from time to time, either declaring or alter- ing the judiciary law, and finally enacted the con- solidated law of 1882, covering a considerable part of the subject. Evolution, and judicial legislation according to the changing activities of business, and not legisla- tive regulation, according to some theory of what the law ought to be, has been the method of the de- veloping of our law from the Roman occupation of Britain until now. The needs and opinions of men vary insensibly from one age to another. These alterations are known by the judges and shared by 14 DEVELOPMENT OF THE LAW IN GENERAL. them. And so the law which they develop progres.ses by imperceptible degrees. Sharp and sudden changes by statutes have always been disfavored. It is said by Lord Chief Justice A. J. E. Cockburn/^ as cited by Lord Chief Justice Coleridge,^® that "whatever disadvantages attach to a system of un- written law, — and of these we are fully sensible, — it has at least the advantage that its elasticity en- able those who administer it to adapt it to the vary- ing conditions of society, and to the requirements and habits of the age in which we live; so as to avoid the inconveniences and injustice which arise when the law is no longer in harmony with the wants, usages and interests of the generation to which it is immediately applied." This method of the gradual developing and ad- vancement of the law, according to the character- istics of the age, and the justice of the case, by a trained and instructed body of men, set apart for the purpose, has always been preferred by the Eng- lish people to codemaking by the sort of men who composed the Legislature, or by commissions. We have in* our own country, at the present time, a gen- eral distrust of our State and National legislatures, and this is sometimes wondered at. But it is an in- herited distrust. It comes from our English ances- tors. Blackstone's book shows that he felt distrust 18 Mason v. Walton, L. R. 48, i9 Usill v. Hules, 3 C. P. D. 4 Q. B. 73, 93. 1868. 325. DEVELOPMENT OF THE LAW IN GENERAL. 15 of legislation. The negligences, imperfections and mistakes of the narrow nobles and country squires, often brutal and ignorant, who made up the early parliaments, and of the commercial and laboring men introduced into the later parliaments, and into our State legislatures, have produced laws far less satisfactory to the people than the judicial legisla- tion of the bench. Nothing more useless, grotesque or harmful has been exhibited in our newest States in the way of legislation than we see in the English records. And we have only to read Sir Erskine May's Constitutional History to see that no legisla- tive jobbers^ in America has approached that of England. While in both countries judicial lawmak- ing has generally been free from the vice of igno- rance and free from the vice of corruption. In both countries, the people have always shown, and now show, as much confidence in the lawmaking of their judges as they do distrust towards the lawmaking of their legislators. As the interpretation and application of a statute, of necessity, falls to the judges, they often experi- ence the greatest difficulty in ascertaining the real intention of the legislature. Take, for example, the famous Statute of Frauds, re-enacted in every one of our States; thousands of decisions, costing mill- ions of dollars, have been expended in attempts to construe it. And yet that statute was drawn by as great a lawyer as would ever be employed in com- 16 DEVELOPMENT OF THE LAW IN GENERAL. posing a code. Many statutes have been found to be actually incapable of administration. Austin, professor of jurisprudence in the Univer- sity of London, in his celebrated lectures, expresses conflicting opinions respecting statutory and judic- iary law compared. He says that he does not dis- approve of the latter; that society could not possibly have gone on without legislation by the judge, to make up for the negligence and incapacity of the avowed legislator; and that that portion of the law made by judges has been far better made than that part which consists of statutes enacted by the leg- islature.^*^ But in another place he says that it can never be known whether a judiciary rule is valid law, because uncertainty is of the essence of judiciary law, but that it is not of the essence of statutory law, which when well constructed and generally ap- proved is "absolutely certain."^^ On the contrary, the meaning of any statute can never be known until it has been applied by the judiciary. Bishop Hoadly said, in his pamphlet on the Bangorian controversy: "Nay, whoever hath an absolute authority to interpret any written or spoken laws, he it is who is truly the lawgiver, to all intents and purposes ; and not the persons who first wrote or spoke them." Out of different possible con- structions, a court may select and apply the one that 20 I Lect. Lond. Ed. 1869, 224. 21 n Lect. 678. DEVELOPMENT OF THE LAW IN GENERAL. I7 best comports with the genius of our institutionst, says the Federal Supreme Court.^^ Parliament was always jealous of the construc- tions placed upon statutes by the judges, and on one occasion added the following clause to a statute: "And be it finally enacted, that the present act, audi every clause, article and sentence comprised in the same, shall be taken and accepted according to the plain words and sentences therein contained, and shall not be interpreted, nor expounded, by color of any pretense or cause, or by any subtle arguments, or inventions, or reasons, to the hindrance, disturb- ance or derogation of this act, or any part thereof, etc/'23 Austin and Bentham are both examples of what absurdities a mere closet thinker, not experienced in the ways of men in actual controversies in the courts, may utter. Bentham was a gentleman of property and leisure, a bencher of Lincoln's Inn, and, no doubt, was one of the greatest minds of the eigh- teenth century; and he originated some important reforms, such as making parties witnesses. But his style was unattractive and his temper narrow. Bom in London in the first half of the eighteenth century, and having listened to the delivery of Blackstone's lectures, which he says were generally attended by from thirty to fifty persons, he yet lived to see the 22 Texas & Pac. R. R. v. Int. 23 stat. 28, Hen. VIII, c. 7, § St. Com. Com., 162 U. S. 197, 28. 218. 18 DEVELOPMENT OF THE LAW IN GENERAL. publication of Kent's Commentaries in America, He derided Blackstone, and wa« angered to read tlie eiilogiiims of Kent on the common law, and said he would be glad to see in Kent the smallest spark of regard for the ends of justice.^^ This was in 1827, and yet Bentham himself had -wTitten and published in 1817 that all the law libraries of all the countries of Europe would not furnish "a collection of cases equal in variety, in amplitude, in clearness of state- ment, — in a word, in all parts taken together, in in- structiveness, — to that which may be seen in the English Reports of Adjudged Cases, adding the abridgments and treatises by which a sort of order, such as it is, is given to their contents."^^ Bentham was one of those persons, happily few, who advocate the abolition of all existing law, writ- ten or unwritten, and the substitution of one enact- ment, called a code, which should include it all, and, make it comprehensible by every citizen. The in- vestigation and presentation of particular facts, and reasoning about them, involves labor and thought, and acquaintance with principles and cases, gives a virile training, and lays under contribution the best powers of the intellect; but these persons vainly im- agine that such labor and thought and knowledge may be rendered unnecessary by a code. In response to an inquiry from parliament, in 1844, 24 X Works, Edinb., 1843, 560. 25 ly Works, Papers on Codif., 461. DEVELOPMENT OF THE LAW IN GENERAL. 19 the entire body of superior judges of England, men of great moral worth, intellectual culture, breadth of view, and long experience, joined in recommend- ing that no attempt at codification should be made; and their view undoubtedly represented the English bar and the English people. iWe are now prepared to sum up our methods of legal development. The chief mode of evolution of our system of law consists in its development by judicial decisions, according to the requirements of human change and improvement, and according to the reason and justice of the particular case. These decisions are more or less cogent evidence of what the law actually is, according to the eminence of the court and the thoroughness of argument of counsel concerned. Another mode is our method of law reform, in the way of development, which is to remedy defects by single statutes as occasion may arise; and also, from time to time, to digest judiciary law, on single or re- lated topics in one statute. A third mode is the American invention of writ- ten constitutions, binding not only the judges, but also the legislature. This may be called the culmi- nation of development. Our law is still further in course of development by the operation of the doctrine that the judges are clothed with the power and bound by the duty of determining that a statute repugnant to the constitu- tion, as they interpret it, is no law. 30 DEVELOPMENT OF THE LAW IN GENERAL. Judiciary law is not, and never can be, superseded by statutory and constitutional enactments, for the reason that, although these are controlling, their construction can never be certainly known until they bave been applied by the judiciary in particular! cases, according to the established maxim that, "A' thing may be within the terms and not within the intention, or within the intention and not within the terms." This maxim is older than Bacon's Abridg- ment; and it was declared by Justice Miller that upon this maxim all the implied powers of the Fed- eral government rest.^^ The interpretation may be rigid or elastic, according to the demands of an ad- vanced civilization, according to the progress of arts and sciences, and according to the principles of jus- tice and reason deemed to be applicable. Thus judicial decisions necessarily both precede and follow statutes and constitutions, and it is in the decisions that we find the best illustrations of the gradual development of the law. Historical investigation concerning the evolution of our law during the long period of the transition ■from the feudal to the federal system will establish the foregoing. The transcendent power of parliament and of the Crown devolved upon the people of the States at the time of the American Revolution, as stated by the Supreme Oourt.^''^ Among these powers was the 20 Yarbrough's Case, 110 U. S. 27 Mormon Church v. U. S., 136 651. U. S. 1. DEVELOPMENT OF THE LAW IN GENERAL. 21 power to absolve from liability to meet contract en- gagements, say the Supreme Court.^^ But the peo- ple of the States, in making the different constitu- tions of the States, have not conferred such tran- scendent powers upon the State legislatures. They have delegated the law-making power to an endless series of State legislatures, except such powers as they have delegated to the Federal government, sub- ject to the limitations of the State constitutions and also to Section 10, Article 1, of the Federal consti- tution, forbidding the States to pass any law im- pairing the obligation of contracts, and also subject, since the year 1868, to the limitations of the 14th amendment to the Federal constitution, prohibiting to the States the making of any law which shall' abridge the privileges or immunities of citizens of the United States, or the depriving of any person of life, liberty or property without due process of law, or the denying to any person the equal protection of the laws. By the 10th amendment to the Federal constitution, powers not delegated by it to the United States, or prohibited by it to the States, are reserved to the States or to the people. The Supreme Court declares that: "The Four- teenth Amendment, which was finally adopted July 28, 1868, largely expanded the power of the Federal courts and Congress, and for the first time author- ized the former to declare invalid all laws and judi- 28 Can. So. R. R. v. Gebhard, 109 U. S. 527. 22 DEVELOPMENT OP THE LAW IN GENERAL. cial decisions of the States abridging the rights of citizens or denying them the benefit of due process pf law."29 From the fact that the exercise and operation of the police power of the State is limited and con- trolled by the Federal constitution, as well as by the State constitution, as just remarked, we have to con- sider very largely the historical development of the law concerning the police power in the decisions of the Federal arbiter, the Supreme Court of the United States. 29 Holden V. Hardy, 169 U. S. 366, 382. CHAPTER II. GENERAL SCOPE OF THE POLICE POWER. The view of legal development presented in the first chapter will appear well-founded by a consid- eration of the growth and evolution of what, at the present day, is termed the police power. The use of this phrase, in its existing acceptation, is essentially modern, and its enlarged meaning is the result of conditions arising in the States of America, regu- lated by our statutes and passed upon by our tribu- nals. There is no trace in the books, before the early part of this century, of the use of the expression police power as substantially equivalent to the power of legislation. The Greek word polls, meaning state or common- wealth,^ is the origin of the word police, which was not used till near the close of the eighteenth cen- tury. Dr. Johnson regarded it as a French word, used in England, and signifying "the regulation and government of a city or country, so far as regards the inhabitants."^ Blackstone treated this power briefly, and merely as a head, or subdivision, of criminal justice, com- prising such offenses as especially affect public so- 1 Plato, Republic, 422 E. - Johns. Diet., sub voce. 23 24 GENERAL SCOPE OF THE POLICE POWER. ciety; and such is the popular conception of the power even now. Bentham says the word police is derived from the Greek and was imported into Eng- land from France, and that the idea belonging to it is too multifarious to be susceptible of any defini- tion; but he also classes the term as a division of criminal justice, yet includes in it regulations against selling poisons, for shutting inns at a certain hour at night, for exercising the professions of law and medicine only after passing certain examina- tions, as well as systems of espionage. In the time of Kent, the subject had not begun to assume its present proportions, and he devotes little attention to it. In the early English Keports, there are in- stances of the exercise of the police power, as now interpreted, but that phrase is not employed. For example, the judges of the King's Bench speak of in- juries sustained by individuals for the accommoda- tion or protection of the public, under acts of parlia- ment, such as relate to laying out turnpikes, pulling down houses for public defense, etc., according to the maxim, Salus populi suprema lex.^ The tenn appears to have been first used in the United States Supreme Court Reports by Mr. Justice Story, who says that the police power belongs to the States in virtue of their general sovereignty and has never been conceded to the United States, and that it ex- tends over all subjects within their territorial limits, and includes the power of deportation of undesirable 8 Gov, et al. v. Meredith. 4 T. R. 790. GENERAL SCOPE OF THE POLICE POWER. 25 persons.* The word police was also employed by Marshall.^ Before the last half of the present century, neither the legislatures nor the courts were much occupied with considering the police power. But the spirit of what we call individualism, which pervaded the early history of our States, has given way before the increasing desire to look to govern- ment for aid, and the police power has been seized upon by our newly-composed legislatures, elected from the working classes, and statutes have been passed interfering with many of the ordinary con- cerns of life, hitherto not meddled with by legisla- tion. At the same time constitutional guaranties have either been enlarged or newly created. It has therefore followed that judicial decisions touching the exercise of the police power have increased in number enormously, and a body of modern law has been developed by the application of ancient prin- ciples to new conditions of society. Let us now inquire what the police power is as now understood in the present state of the development of the law on the subject. It in general covers the conduct of individuals and the use of property, and includes the regulation of these subjects by the State. Definition is always perilous in the law, and no definition of our topic need now be attempted. What the police power is, and what its extent and limitations are, can only be 4 Prigg V. Penn., 16 Pet. 539, s Gibbons v. Ogden, 9 Wheat, 1842. 208, 1824. 26 GENERAL SCOPE OF THE POLICE POWER. ascertained by the gradual processes of judicial in- clusion and exclusion as the cases presented for de- cision require, with the reasoning upon which such decisions may be found, following the weighty obser- vation of Mr. Justice Miller, when declining to define what is deprivation of property without due process of law.® Long prior Chief Justice Taney attempted the definition of the police powers of the State and said that they are nothing more or less than the pow- ers of government inherent In their sovereignty, and include laws concerning quarantine, punishment of offenses, establishment of courts, recording of in- struments, and the regulation of commerce within the limits of the State.^ The question which elicited this definition was, whether a State law prohibiting the sale without license, of liquor imported from an- other State, was repugnant to the constitution of the United States, on the ground that the Federal grant of power to regulate commerce is in itself a prohibition of that power to the State, although undeniably within the police powers of the State. The celebrated chief justice of Massachusetts de- fines the police power as the power vested in the legislature to make such laws as they shall judge to be for the good of the commonwealth and its sub- jects; adding, however, that it is much easier to re- alize the existence and sources of this power than to mark its boundaries or prescribe limits to its exer- 6 Davidson v. N. O., 96 U. S. 7 Peirce v. N. H., 5 How. 583, 97, 1877. 1846. GENERAL SCOPE OF THE POLICE POWER. 27 cise.^ The question in this case was as to the estab- lishment of a wharf-line. Shaw's definition is broad enough to include the whole body of legislation, and corresponds with the meaning of the word police ety- mologicallj considered. Mr. Justice Lamar, of the Supreme Court of the United States, declared that the police power of the State is as broad and plenary as the taxing power, and that the property within the State is subject to the operations of the former so long as it is within the regulating restrictions of the latter.^ Mr. Justice Devens said that the legis- lature is largely the judge of its own power with respect to the police power, but, that if rights of prop- erty are invaded under the pretence of a police regu- lation, the court must interfere.^ ° Mr. Justice Miller said in the famous Slaughter House cases,^^ that the police power, from its very nature, is incapable of any very exact definition, as it concerns the security of social order and the life and health of the citizen, comfort of existence in dense populations, and the enjoyment of private and social life, and the bene- ficial use of property. The Supreme Court has also said that the police power is not subject to any definite limitations, but is co-extensive with necessities of the case and the safeguard of the public interest.* ^ 8 Alger's Case, 7 Cush. 84. n 16 Wallace, 36. 3 Kidd V. Pearson, 128 U. S. 12 Canfleld. v. U. S., 167 U. S. 26. 324, citing Ridcout v. Knox, 148 10 Com. V. Bearse, 132 Mass. Mass. 368. 549. 2S GENERAL SCOPE OF THE POLICE POWER. The range of legislation with respect to subjects of governmental control in the exercise of the police power has been much extended within the last quar- ter of a century. The reason of this is obvious. Modern social life has called into being many agen- cies not heretofore existing and the tendency of legis- lation is more and more in the direction of paternal- ism, so-called, in aid of particular interests or special /classes of inhabitants. Out of this enlarged legisla- tion much litigation has been produced and the duty of judges has been to reconcile, if possible, new cases of the exercise of this power with fundamental prin- ciples, and to see that governmental control over per- sons and property should not be carried beyond con- stitutional limitations. In addition to the administration of civil and crim- inal justice, the State police power, at the present day, is exercised in the prevention of diseases, regu- lations as to medicines, adulteration of food, and san- itary measures in dwellings. We also have regula- tions respecting the sale of intoxicating liquors, in- jurious games, and not only as to the sanitation of buildings, but as to the construction of them in pop- ulous places with respect to the material, and the height, and means of escaping from fire; also, with reference to the use of steam engines and elevators and different kinds of machinery in workshops; also as to locomotion and communication, which are par- ticulars mentioned by Bentham. We have many pro- visions relating to telegraphs, telephones, railways, GENERAL SCOPE OF THE POLICE POWER. 29 bridges, and ferries. Business enterprises and cor- porations are very generally regulated by the State, such as transportation companies, insurance com- panies, building associations, banking associations, and the like, for the protection of the individuals who may be interested in them. Regulations in re- ^ gard to the use of land and its occupation by dan- gerous buildings, slaughter-houses and kinds of busi- \ ness likely to produce a nuisance are frequent. For_j personal protection, particularly of the young. State laws are passed prohibiting employment below a certain age, and in certain occupations and requiring '^ a certain time to be spent in schools. With reference to adults, employed in mines or otherwise, the meth- od of payment, the hours of labor, and the like are fixed by the State. In order to control the accumu- lation of wealth, in a few States, inheritance taxes and income taxes are enacted. In order to increase individual independence, insolvency laws, statutes of exemption from execution, usury laws and the like are passed. For professional instruction in medi- | cine, law, and technology, special institutions are provided by the State, and the exercise of certain professions is forbidden without training according to the statutes. Different occupations are regulated, particularly innkeepers, carriers, druggists, hack- drivers, peddlers, auctioneers, and other callings in which the public generally are interested. For the instruction of the people, not only are schools and colleges provided by the State, but libraries, muse- 30 GENERAL SCOPE OF THE POLICE POWER. urns and galleries of art, bureaus of information with regard to sciences, laboring and mercantile indus- tries and the like. For the public health and charity, hospitals, dispensaries and poor-houses are provided. Also, for the protection of property as well as health, provision is made for the prevention of fires, estab- lishment of waterworks, public lighting, public mar- kets, drainage systems, and the destruction of injuri- ous plants and weeds. Many of these matters of leg- islation are delegated by the State to municipal cor- porations, which are governmental agencies for the State. With reference to many of the matters above named, there has been a progressive development of governmental functions, and this development is likely to continue with the increased application of science to the business of life. In other cases in England, says Sir E. May,^^ the State has also extended its generous protection to the weak — even where its duty was not so clear. To protect women or children from excessive or un- suitable labor, it has ventured to interfere with hus- band and wife, parent and child, laborer and employ- er — with free labor and wages, productions and pro- fits. The first Sir Robert Peel had induced the legis- lature to interfere for the preservation of the health and morals of factory children. It was found that children were doomed to immoderate toil in factories by the cupidity of parents; and young persons and 13 2 May's Const. Hist. Eng., 567. GENERAL SCOPE OF THE POLICE POWER. 31 females accustomed to hours of labor, injurious to health and character. The State stretched forth its arm to succor them. The employment of children of tender years in factories was prohibited ; the labor of the young, of both sexes under eighteen, and of all women, was subjected to regulation; an inspec- tion of factories was instituted; and provision made for the education of factory children. The like pa- rental care was extended to other departments of labor — to mines, and bleaching works, and even to the sweeping of chimneys. Perhaps the most marked tendency of the use of the police power in our States at present is towards what is called labor legislation, such as statutes con- cerning hours of labor; forbidding or regulating con- tracts for the labor of women and children ; regulat- ing times and modes of payment of wages; giving priority to claims of certain laborers; prohibiting so-called company stores; prohibiting agreements not to become, or continue, members of labor organ- izations and guaranteeing the right to belong to such organizations. The idea that most of the problems connected wdth the social and industrial life of our citizens may be solved by legislation, under the police power of the State, is very prevalent, and it is well that that power is restricted by constitutional provisions. The above idea leads to what is known as the nationalization of land. We may here observe that community of land, as in Russia and Egypt, tends to barbarism. 32 GENERAL SCOPE OF THE POLICE POWER. Individualism is the animating principle of modern social progress. For much of its long history, many of the cases in the Federal Supreme Court have been devoted to a discussion of the limitations imposed by the Federal constitution upon the police power of the States, and many provisions of State laws, professedly passed under the police powers of the States, have been held to be repugnant to the Federal constitution and set aside. At an early date, the trend of the decisions was towards the strict enforcement of these limita- tions, but the existing tendencies of the more recent decisions have been rather towards the supremacy of the police power. There have been lately notice- able instances of decisions in the direction of a re- laxed interpretation of the limitations of the consti- tution upon the State legislatures. State laws passed in the exercise of the police power and going to the very verge of confiscation of property, have been up- held by the Federal Supreme Court. We are instruct- I ed that the States are as much within the care of the \ Federal constitution as the nation itself ;^^ and un- 1 doubtedly no class of questions has ever arisen in the j English-speaking world so difficult of solution as I those concerning Federal limitations of the police powers of the State. The United States Supreme Court frequently stands five to four in cases on this subject; and changes in the members of the court 14 Texas v. White, 7 Wall. 725; Chase, C. J. 135 U. S. 739, Mil- ler, J. GENERAL SCOPE OF THE POLICE POWER. 33 have, therefore tended to the overruling of previous cases. Mr. Justice Clifford observed*^ that State police power in its widest sense comprehends the whole system of internal regulation by which the State seeks not only to preserve the public order and to prevent offences against her authority, but also to establish for the intercourse of one citizen with an- other those rules of justice, morality, and good con- ^ duct which are calculated to prevent a conflict of interests and to insure to every one the uninterrupt- ed enjoyment of his own, as far as it is reasonably consistent with a like enjoyment of equal rights by ^ others. And he further observed: "Acts of Congress cannot properly supersede the police powers of the State, nor can the police powers of the State override! the national authority, as the power of the State in j^ that regard extends only to a just regulation of rights with a view to the due protection and enjoy- » ment of all; and if the police law of the State does i not deprive any one of that which is justly and prop- i erly his own, it is obvious that its possession by the State and its exercise for the regulation of the action of the citizens can never constitute an invasion of national jurisdiction or afford a basis for an appeal -^ to the protection of the national authorities." Where a law of New York prohibited methods which might result in the extinction of fisheries, Mr. isTenn. v. Davis, 100 U. S. 300, 301. 34 GENERAL SCOPE OF THE POLICE POWER. Justice Brown said of the police power :^^ "It is uni- versally conceded to include everything essential to the public safety, health, and morals, and to Justify- the destruction or abatement, by summary proceed- ings, of v/hatever may be regarded as a public nuis- ance. Under this power it has been held that the State may order the destruction of a house falling to decay or otherwise endangering the lives of pass- ers-by; the demolition of such as are in the path of a conflagTation; the slaugh+er of diseased cattle; the destruction of decayed or unwholesome food; the prohibition of wooden buildings in cities; the regu- lation of railways and other means of public con* veyance, and of interments in burial grounds; the / restriction of objectionable trades to certain locali- ^ties; the compulsory vaccination of children; the confinement of the insane or those afiiicted with con- tagious diseases; the restraint of vagrants, beggars, and habitual drunkards; the suppression of obscene publications and houses of ill-fame; and the prohi- bition of gambling houses and places where intoxi- r eating liquors are sold. ' Beyond this, however, the State may interfere wherever the public interests demand it, and in this particular a large discretion is necessarily vested in the legislature to determine, not only what the interests of the public require, but what measures are necessary for the protection of such interests. To justify the State in thus inter- 16 Lawton v. Steele, 152 U. S. 133, 136. GENERAL SCOPE OF THE POLICE POWER. 35 posing its aiitliority in belialf of the public, it must appear, first, that the interests of the public gener- ally as distinguished from those of a particular class, i require such interference; and, second, that the means are reasonably necessary for the accomplish- ment of the purpose and not unduly oppressive upon ^ individuals. The legislature may not, under the guise of protecting the public interests, arbitrarily interfere with private business, or impose unusual and unnecessary restrictions upon lawful occupa- tions. In other words, its determination as to what is a proper exercise of its police powers is not final or conclusive, but is subject to the supervision of the V courts." Where the State of Kentucky regulated the sale of illuminating oil, by a test to which a certain patented oil could not conform, and the patentee unsuccess- fully claimed the right to sell, nevertheless, by rea- son of his patent, Mr. Justice Harlan said the police power extends to the protection of the lives, the health, and the property of the community, against the injurious exercise by any citizen of his own rights.^ ^ M^ additional head of the police power has re- "^ ceii^ been declared, namely, the public convenience. Up^(|fthat ground, a law of Ohio was sustained which required the stopping of through trains, on an inter- > state railroad, at a certain town.^^ In order to save 17 Patterson v. Ky., 97 U. S. U. S. 285; see Illinois C. R. v. 501. Illinois M., 163 U. S. 112. 18 Lake etc. R. R. v. Ohio, 173 g6 GENERAL SCOPE OF THE POLICE POWER. as much light as possible for adjacent churches, mu- seums, and schools, the legislature may limit the height of buildings on a city square.^^ The Courts of Appeals of New York and Texas lay down that the police power has no other limitations than those imposed by the constitutions.^^ The Fed- eral Supreme Court declares that the unequal admin- istration of a State police law, impartial on its face, may be a denial of justice within the provision of the Fourteenth Amendment.^^ i» Atfy Gen. v. Williams, 55 21 Yick Wo v. HopKins, 118 U. N. E. Rep. Mass. 77. S. 356; see also Re Christensen, 20 People V. Cipperly, 101 N. 43 Fed. 213. y. 631; Baldwin v. State, 21 Tex. App. 591. CHAPTER III. THE POLICE POWER AS EXERCISED IN THE ADMINIS- TRATION OF JUSTICE BY THE STATE, The administration of justice, civil and criminal, within the State is wholly under the control of the State, where there is no conflict with the Federal Constitution. The phrase "law of the land" in a State in this regard means the law of the State, and due process of law in the State is regulated bj the law of the State. The power of the State in dealing with a crime is not limited by the Fourteenth Amendment provided that particular persons or classes are not deprived of equal and impartial justice. Regular administration in the State courts constitutes due process, when operating on all alike.^ The State may determine by what process legal rights and objec- tions may be asserted and enforced, provided the method gives reasonable notice and opportunity to be heard.2 For example, the State may provide for trials in civil cases without a jury, inasmuch as Arti- cle 7 of the Amendments to the Federal Constitution guarantees a trial by jury only in the Federal Courts.^ So, a State may provide for a prosecution in a crim- iLeeper v, Texas, 139 U. S. U. S. 329; Brown v. N. J., 175 462. U. S. 172, 174. 2 Iowa C. R. R. V. Iowa, 160 3 Walk«r v. Sauvinet, 92 U. S. 90. 37 38 ADMINISTRATION OP JUSTICE. inal case without indictment by grand jury. A grand jury is not required by the words "due process of law" in the Fourteenth Amendment, if there be a provision in the State constitution according the right of the accused to the aid of counsel and to the exercise of the privilege of cross-examination.* In a great variety of cases, as shown by Mr. Justice Brad- ley,^ due process of law does not require a trial by jury. The decisions are, that mere forms of adminis- trative process may be changed, provided the sub- stantial safeguards are retained and, that legal pro- ceedings which are newly devised, in the discretion of the legislative power of the State, in furtherance of the general public good constitute "due process of law" in case the fundamental principles of liberty and justice are preserved.^ Development of newly- devised legal proceedings and courts has gone on in England from the establishment of the King's Bench, Common Pleas and Exchequer Courts in the thir- teenth century, to the Supreme Court of Judicature Act in 1875. It may be here observed that in the Federal Courts indictment by a grand jury is indis- pensable by reason of the Fifth Amendment to the Federal Constitution.'^ In Pennsylvania it has been held that the State, when creating a new offense, may deny a trial by jury.^ But the case was one 4 Hodgson V. Vermont, 168 U. 294; Hurtado v. Cal., 110 U. S. S. 262, 272; Bolln v. Neb., 176 516; Maxwell v. Dow, 176 U. S. U. S. 83. 581. 5 Exp. Wall, 107 U. S. 259. ^ Exp. Wilson, 114 U. S. 117. 6 Pearson v. Yewdall, 95 U. S. s Swartow v. Com., 24 Pa. 131. ADMINISTRATION OF JUSTICE. 39 proper for a summary conviction, an illegal sale of liquor on Sunday. Many statutory changes have been made in the newer States. For example, the provision in the constitution of the State of Utah that a jury may consist of eight persons instead of twelve persons. This provision is held lawful.^ In Utah, three-fourths of a jury may find a verdict. But in general the holding is, that the phrase jury trial means a trial by twelve.^ ^ The subjects of majority verdicts and the composition of the jury are presented with great fullness in the citation in the foot note.^^ The Supreme Court ruled that the New York statute pro- viding that the punishment of death must be in- flicted by an electrical apparatus was within the police power of the State, and that this statute does not abridge the prisoner's rights or deprive him of due process of Islw}^ In like manner, the provision of the New York statute as to solitary confinement of convicts condemned to death is sustainable as consti- tutional.^^ In the case of the anarchists,^^ the statute of Illinois was that the formation of an opinion by ju- rors, which opinion had not been expressed, and which opinion had been founded upon rumor or newspaper 9 state V. Bates, 14 Utah 293. also Cap. Traction Co. v. Holt, See Maxwell v. Dow, 176 U. S. 174 U. S. 1. 581. 12 Kemmler's Case, 136 U. S. 10 Thompson v. Utah, 170 U. 436. S. 343. 13 McElvaine v. Brush, 142 U. 11 43 L. R. A., pp. 1 to 30; see S. 156. 14 Spies V. 111., 123 U. S. 131. 40 ADMINISTRATION OF JUSTICE. reports, should not disqualify a juror, In case he could state that, nevertheless, he could render an im- partial verdict, and in case the court should believe his statement. The court, in an opinion by Chief Justice Waite, held that the foregoing provision was not repugnant to either the United States or the State constitutions. The question should be, in the case of new legislation, whether the case belongs to a class of cases originally requiring a trial by jury.^^ The State may provide for taking land without a jury,^^ and without compensation, if the constitution does not forbid, as Parliament may in England. A State cannot deny a colored citizen the privilege of being a juror under the Fourteenth Amendment.^'' In this connection, it is proper to notice an anom- aly. Fundamental as is the right of the State to punish crime committed within its territory, and in the courts of the State, nevertheless, the State may I not administer justice as to offenses against its own I laws where a correct decision of the defense set up ; depends upon the construction of a law of the United States. This is a remarkable development of the law in considering the police power, arising from the fact that the Federal Courts under the Constitution are clothed with jurisdiction over all cases arising under the laws and Constitution of the United States. One Davis was indicted in a court of the State of Tennes- 15 Wynehamer v. People, 13 N. 53 Pa. 445. Y. 157. " Strauder v. W. Va., 100 U. 16 Penn. R. v. Lutheran Cong.. S. 303. ADMINISTRATION OF JUSTICE. 41 see for killing a man, as was claimed in self-defense, while in discbarge of his duty as a collector of in- ternal revenue. Davis caused the case to be removed to the Federal court and the question which arose upon a motion to remand the case to the State court was certified to the United States Supreme Court. Justices Clifford and Field dissented on the ground that the State had not ceded its police power over crimes to the general government.^ ^ In another case, it was also held that the crime of murder under a law of a State is not justiciable under that law, but in the Federal Court, where the alleged crime is committed by an officer of the Fed- eral government in the discharge of his official duty.^^ In such a case, the police power of the State yields to the overriding Federal power under the con- stitution, as above stated. The Chief Justice and Mr. Justice Lamar dissented, on the ground that there was no statutory authority of the United States regarding the attendance of Neagle as a Deputy Mar- shal, to protect the person of the Federal Justice whose life w^as threatened by one Terry whom Neagle killed. The dissenting judges considered the de- cision as divesting the State of its exclusive juris- diction over crimes committed within its own terri- tory, against its own laws. This case is a remarkable illustration of the development of law by judicial decision. There was no Act of Congress which could 18 Tenn. v. Davis, 100 U. S. is Re Neagle, 135 U. S. 1. 257. 43 ADMINISTRATION OF JUSTICE. be produced as a justification of the act of the pris- oner, a United States Deputy Marshal, in defending the life of the U. S. Associate Justice. The defense was simply an executive order of the President, through the Attorney-General, instructing the de- fendant to protect the person of the Justice; and the alleged crime was committed by the defendant with- in the territory of the State, while carrying out his orders. But it was held that there is "a peace of the United States" against which the crime was com- mitted. In another case the judges held that it was com- petent for the State to punish a person who caused liquor to be transported into the State from another State, in closing a sale made in that other State, al- though the transaction was lawful in that other State where the sale was actually made. The dis- senting judges held that the exercise in the former State of criminal jurisdiction over the transmission of the liquor was an interference with the Federal power over commerce between the States. The dis- cussions in this case will well repay perusal for vigor of argument.-*^ A tax law granting the taxpayer a right to be heard on assessment of his property before judgment is due process of law for determining the valua- tion.2i Statutory criminal conspiracies under the legisla- 20 O'Neil V. Vermont, 144 U. 21 Pittsburgh etc. Ry. v. Baclr- S- 323. us, 154 U. S. 421. \/ ADMINISTRATION OF JUSTICE. 43 tion of the State have produced many decisions de- reloping the old law concerning conspiracies. The doctrine of that old law-- was applied at an early day to organizations of labor to raise wages, and the decisions condemned such combinations. Later, it was held not unlawful for workmen to combine un- der an agreement that they would not work except for certain wages, and that it was not unlawful for masters to agree to pay only certain wages.^^ But the later decisions are unanimous that where threats and intimidations are a part of the combination a criminal conspiracy exists. The employment of the writ of injunction to pre- vent criminal acts and thus to administer the police power of the State by equity process in the suppres- sion of crime k a noteworthy instance of the devel- opment of the law by judicial decisions. The ground of the use of the writ seems to be that such criminal conspiracies as are above referred to threaten the destruction of property .--^ The case in the foot note, in England, one of the earliest, if not the earliest, is placed on that ground, viz.: protection of private property threatened by some act which chances to be a criminal act. In the so-called Ann Arbor cases,^' the Court said the power of a railroad company to carry freight and passengers was property, and con- 22 Rex V. Cambridge Tailors, 24 l. r. 6 Eq. 551, Springhead 8 Mod. 11. V. Riley. 23 Stevedores Ass'n v. Walsh, 25 Toledo etc. R. R. v. Penn. 2 Daly N. Y. 1; Carew v. Ruth- R. R., 54 Fed. 730, 746. erford, 106 Mass. 1. 44 ADMINISTRATION OF JUSTICE. sequently a combination of employes to cripple and destroy the power of transportation was an inter- ference with property which that court could enjoin in equity. In 1885, in England, a conspiracy to mo- nopolize the trade with China w^as h^ld to be an of- fense, but it was said that an injunction was not called for.^^ The recent development of the law by our own courts in this regard appears to carry out to a legitimate conclusion the use of the writ of in- junction to prevent criminal boycotts.^''^ In cognate decisions of the Federal Court where the threatened conspiracy is against a railway property, so that the public is likely to be injured, protection of the public appears to be the ground on which the decision for the use of the writ of injunction is placed.^^ The Massachusetts doctrine appears to be that the right of a person to carry on business is property to be protected by injunction.^^ It cannot be denied that suppression of criminal acts by civil process, under the police power of the State, is a development of the law^ by judicial de- cision more remarkable than any instance of develoj)- ment up to the present time. This development has been much criticised in the public press and has been derisively called government by injunction. The 26 Mogul Steamship Co. v. Mc- 28 Farmers' L. & T. Co. v. N. Gregor. L. R. 15 Q. B. 176; ap- P. R. R., 60 Fed. 803. proved in Lough v. Outerbridge, 29 Vegelhahn v. Guntner, 167 143 N. Y. 271. Mass. 92; so, also, in Mich., 27 Sherry v. Perkins, 147 Mass. Beck v. R. R. etc. Union, 118 212. Mich. 497. ADMINISTRATION OF JUSTICE. 45 cases are numerous and several are in the foot note.^"^ The development of equity practice in general, by the decisions, may here be referred to. It was said by Lord Cottenham^^ that it is the duty of the court to adapt its practice and course of proceeding to the existing state of society, and not to decline to admin- ister justice and enforce rights because no remedy appears to exist. Sir George Jessel, Master of the Rolls, declared^^ that it must not be forgotten that the practice of the Court of Equity has been estab- lished from time to time, altered, improved and re- fined; adding that in many cases, we know the names of Chancellors who invented new rules and that those inventions were made for the purpose of secur- ing better administration of justice. He then cites as examples the separate use of married women, the restraint of alienation, modern rules against perpe- tuity and the rules concerning equitable waste. He further says that if we want to know what the rules of equity are, we must look rather to the more mod- 30 United States v. Working- Council, 53 N. J. Eq. 101-136; men's Council, 54 Fed. 994; Elder v. Whitesides, 72 Fed. South Cal. Ry. Co. v. Ruther- 724; Shoe Co. v. Saxey, 131 Mo. ford, 62 Fed. 796; Farm- 212; Davis v. Zimmerman, 98 ers' L. & T. Co. v. Nor. N. Y. Sup. 489; Cons. Steel Co. Pac. R. R., 60 Fed. 803; 63 v. Murray, 80 Fed. 811; Nash- Fed. 310; Farrar v. Close, L. R. ville Ry. Co. v. MacNiel, 82 Fed. 42 B. 602, 612; United States v. 65-87; Hopkins v. Oxley Stave Debs, 64 Fed. 724; United States Co., 83 Fed. 912. V. Elliott, 62 Fed. 801; Thomas 31 wallworth v. Holt, 4 Mylne V. Cincinnati Ry. Co., 62 Fed. & Craig, 635. 803; China Co. v. Brown, 164 32 Knatchbull v. Hallatt, L. R., Penn. 449; Barr v. Essex Trade 13 Ch. Div. 710. 46 ADMINISTRATION OF JUSTICE. ern than to the more ancient cases. We may here observe that the phrase common law, in its enlarged sense, includes equity; and when we consider the de- velopment of law we include equity as well as law strictly so called. The extent to which the State may go under the police power in declaring acts to be criminal is illus- trated by a case sustaining an act of Pennsylvania making it a crime to convey or settle upon lands in certain counties in that State under any title not derived from that State.^^ Mr. Justice Grier speaks of the "power which has been denominated the police power," and says that under that power a law of Illinois punishing the harboring of a fugitive slave was sustainable, and this although the same act was punishable under Federal law.^* A law exclud- ing a minister of the gospel from the exercise of his clerical function passed by the State of Missouri was not sustained as to offenses before its passage, and because it instituted a new rule of evidence of con- viction. The statute created a qualification or con- dition to the right to preach or teach. Cummings was a Catholic priest and exercised his calling con- trary to the statute, and his conviction was set aside.^^ Aside from this retrospective feature, the law seems to have been regarded by the judges as within the police power of the State. A law of New 33 Com. V. Franklin, 4 Dallas ss Cummings v. Missouri, 4 255. Wall. 277. 34 Moore v. Illinois, 14 How. 13. ADMINISTRATION OF JUSTICE. 47 York that convicted persons should not practice med- icine was sustained bj the Federal Supreme Court.^^ There is an instructive case with regard to the right of the State to make laws which relate to remedy or mode of procedure and those which operate direct- ly upon the alleged offenses.^'^ By the law of the State, when a certain homicide was committed, there was a certain sentence to be inflicted; but before the prisoner's plea of guilty was entered the law was changed and it was held that the State was forbidden to make a law which as to this case would violate the provisions of the United States Constitution with re- gard to ex post facto laws, four judges dissenting. While it was competent for the State to prescribe different modes of procedure and to change the law as it did, yet the law could not be applied to past transactions. This is illustrated by a decision con- cerning a statute of Minnesota, which required that criminal cases should be tried in the counties where the offenses were committed; another law changed the place of trial and it was held by the Supreme Court of that State and the Supreme Court of the United States that change of place of trial of an alleged offense after its commission, was within the power of the State and was not forbidden as an ex post facto law.^^ The dissenting judges in the Kring case held that the law under discussion in that case 36 Hawkes v. N. Y., 170 U. S. 37 Kring v. Missouri, 107 U. S. 189. 221. 3s Gut V. State, 9 Wall. 35. 48 ADMINISTRATION OF JUSTICE. merely affected the remedy and was consequently applicable to the case of an offense previously com- mitted. Proceedings for contempt of court may be regu- lated by the State. Such proceedings cannot be sub- ject to the right of trial by jury, and constitute due process of law. This was held with regard to a pro- ceeding in the State of Iowa under the law of that State.^^ The State may impose such punishment as it thinks proper without infringing upon that pro- vision of the Federal Constitution, the 8th amend- ment, which forbids the imposition of excessive fines and the infliction of cruel and unusual punishments. This was held with regard to a law of Massachu- setts.^o There are many cases concerning the punishment by the State of acts done by individuals in carrying out their religious beliefs and opinions. The de- cisions are that while the State cannot interfere with belief and opinion upon religious subjects, it may punish practices indulged in under such beliefs and opinions. This was so held unanimously with re- gard to the constitution of Utah affecting the power of the State in that regard and making the practice of polygamy an offense. It was ruled that religious beliefs cannot be accepted as a justification for an overt act made criminal by the law of the State.*^ 39 Eilenbecker v. Plymouth 4i Reynolds v. U. S., 98 U. S. Co., 134 U. S. 31. 145. <> Williams v. Mississippi, 170 S. 356, 373. U. S. 213, 219. CHAPTER VI. THE STATE POLICE POWER AS TO PUBLIC HEALTH AND SAFETY. There has been little contrariety of opinion among the judges with reference to the subject of this chap- ter. This subject seems to be considered in all the judicial opinions as especially within the police pow- er and not in any way to be parted with under any circumstances. Everything injurious to public health may be controlled by statute. Also, things may be controlled which, when used in a lawful man- ner are subjects of property and of commerce, but are capable of being so used as to be injurious to health or morals. The manufacture and keeping on sale of such things may be regulated by ctatute. In- toxicating liquors have been especially considered as subject to regulation as a business attended with injury to the community, and statutes may prohibit the manufacture and sale of liquor, although the buildings were erected and equipped and used for such purposes prior to the enactment of the regu- lating statute and at a time when the business was lawful.^ The decisions are that compensation 1 Mugler V. Kansas, 123 U. S. 18 Wall. 129; Beer Co. v. Mass.» 623; see Bartemeyer v. Iowa, 97 U. S. 25. 85 gg PUBLIC HEALTH AND SAFETY. cannot be allowed in such cases under the police power — that in such cases private property cannot be said to be taken for pub- lic purposes. Where property is taken in that way for the public health and safety, in general it cannot be taken without compensation, and there is no distinction between the power of eminent domain and the police power in this regard. The police pow- er restricts the use and enjoyment of property; the power of eminent domain promotes the public wel- fare by taking away property from the owners and applying it to some public use. Prohibitory liquor laws have been universally upheld and sustained under the police power in the several States; but, as already observed, there cannot be, under this power, the appropriation of property without compensation for public health or safety. For example, for the pur- pose of constructing drains through lands without the consent of the ow^ners.- The public authorities, as an illustration of this, cannot erect a dam on pri- vate property without the consent of the owner for the purpose of abating a nuisance which exists on adjacent land.^ The State may prohibit bringing ■within its borders animals having infectious diseases or articles of propei-ty injurious to health and safety. Where this rule impinges upon Federal power over 2 Matter of Cheseborough, 78 3 Cavanaugh v. Boston, 139 N. Y. 332; Stoudinger v. New- Mass. 426; Vick v. Rochester, ark, 1 Stew. Eq. 446. 46 Hun. 607. PUBLIC HEALTH AND SAFETY. 87 commerce is considered in another place.^ An act prohibiting the transportation of natural gas through pipes at a greater pressure than 300 pounds to the square inch or otherwise by its natural flow was held a valid exercise of the police power as a regulation of the use of a species of property injuri- ous in its character.^ Where Congress enacted that it should be punishable to offer for sale petro- leum oil for illuminating purposes, inflammable at a less temperature or fire test than 110 degrees Fahr- enheit, the judges declared that such a police regula- tion related to the internal trade of the State, and was wholly within the police power of the States, and beyond the competency of Congress.® Police power in respect to health and safety is very commonly conferred by the legislature of the State upon mu- nicipalities. These municipalities are regarded as subordinate legislative and administrative bodies. They can exercise no powers but those derived from the act under which they exist or such as are neces- sary to the performance of a power expressly con- ferred. The judges declare with respect to such municipalities that they cannot abdicate their legis- lative powers nor create monopolies nor bargain away their legislative discretion. Accordingly, where a municipal authority made a contract with refer- ence to a market house, fixing certain conditions, 4 La. V. Texas, 176 U. S. 1. Co., 28 N. E. Rep. 76. 5 Jamieson v. N. Y. Gas & Oil e u. S. v. DeWitt, 9 Wall. 41. 38 PUBLIC HEALTH AND SAFETY, and providing that there should be no other public market house within the municipality for ten years, the judges said that the contract tended to divest the corporation of a part of its legislative authority and to create a monopoly in favor of the contractor^ The principle declared in this case is hardly consonant with the sustaining of the monopoly in the Slaughter House cases, to w^hich attention is directed in an- other place. The general principle is that it is not in the power of a common council to bind its legis- lative capacities by any arrangements or stipulation so as to disable itself from enacting any law that might be deemed essential for the public good. State legislative powers are continuing and inalien- able.^ Sewers and waterworks are held by the judges to be the private property of municipalities, in which property the people of the State are not interested, as they are in the streets and public highways,^ No exclusive privileges or franchises can be granted by the municipalities unless the State has conferred that power,^^ All powers granted to municipalities must be reasonably exercised and such powers are not unlimited. This is a principle well established.^* •? Gale V. Kalamazoo, 23 Mich, 165; Cincinnati v. Cameron, 33 344. Ohio St. 336. 8 Britton v. Mayor, 21 How. lo Omaha etc. Co. v. Cable etc. 251; Goszler v. Corp. of George- Co., 30 Fed. 324; Gas Light Ca town, 6 Wheat. 593; see also v. Saginaw, 28 Fed. 539. Walsh V. Bowen, 103 Ind. 257; n Welch v. Stowell, 2 Doug., Milhau V. Sharpe, 27 N. Y. 622. Mich., 332; Morse v. Worcester, 9 Detroit v. Corey, 9 Mich. 139 Mass. 389; Self ert v. Brook- lyn, 101 N. Y. 136. PUBLIC HEALTH AND SAFETY. 89 Where a power is given in general terms, as for in- stance to abate nuisances, it will be implied that the legislature intended this power to be exercised in the enactment of laws of general application and not bj dealing with particular enterprises or establish- ments. Because an unlimited power of ^at charac- ter would place all the property within t!ie State at the uncontrolled and arbitrary will of the temporary local authorities, as was said by Judge Campbell of Mississippi.^ 2 All ordinances must be general and impartial and not discriminating in their operation, say the judges.*^ Instances of the exercise of police power concerning health are afforded in the case of infectious diseases, removal of persons and articles, warrants for disinfection, compulsory vaccination,^* registration of vital statistics, removal of nuisances, summary abatement of them, cleansing and draining of unwholesome places, prohibiting of offensive trades, and the like, all of which the judges declare to be properly within the exercise of the police povrer in this regard; and the modern cases go very far in sustaining ordinances and powers which trench ap- parently upon private rights. Where there is an actual infringement of private right, the boards of health may be liable to the individuals injured. Members of boards may be protected as quasi-judi- cial officers under some circumstances and may 12 Lake v. Aberdeen, 57 Miss. 221; Exp. Chin Yan, 60 Cal. 79. 260, 263. 14 Morris v. Columbus, 104 Ga. 13 Com. V. Patch, 97 Mass. 792. 90 PUBLrC HEALTH AND SAFETY. justify under legislative statutes and city ordi- nances and under the exercise of discretionary pow- ers not arbitrarily used.^^ Reasonable use by the owner of his property may turn on the question of injury to others.^^ The motive or intent of the party is immaterial.^ ''^ Acts which otherwise would be nuisances may be justified under express statutes; but these are strictly construed.^^ An instance of this principle is found in the declaration of the judges of the Federal Supreme Court in Fertilizing Co. vs. Hyde Park,^'' which is noticed in another place. Under such statutes, nothing is to be taken, as conceded, except what is given by unmistakable terms or by implications equally clear. It is per- fectly well settled by the judges that the legislature or the municipalities may declare things to be nuis- ances which otherwise would not be such.^^ The exercise of the legislative discretion in such cases, the judges hold to be conclusive, particularly with reference to all acts prohibiting the manufacture and sale of intoxicating liquors. The citizen may adopt and follow such pursuits as he likes not in- jurious to the community. At the same time, this 15 Fischer v. Boston, 104 Mass, is Cogswell v, N. Y. C. R. R., 87; Smith v. Rochester, 76 N. 103 N. Y. 10. Y. 506; Elliott v. Phila., 75 Pa. le 97 U. S. 659. St. 347. 20 Mugler v. Kansas, 123 U. S. leHurlburt v. McCune, 55 623; Powell v. Penn., 114 Pa. Conn. 31. St. 265; Beer Co. v. Mass., 97 iTRadcliffe v. Mayor, 4 N, Y. U. S. 25; Miller v. Horton, 152 195; Fletcher v. Rylands, L. R. Mass. 540. 1 Exch. 263. PUBLIC HEALTH AND SAFETY. 91 right is subject to such reasonable conditions as the State in the exercise of the police power may deem essential to the health and safety and morals of the community.^^ The judges in the different cases merely apply the maxim that each individual must so conduct himself in his calling and in the use of his property as not to injure others. The States, consequently, have been in the habit of estab- lishing certain restrictions upon certain kinds of business. These restrictions are subject to the de- termination of the judges as to their reasonable character. Regulations for certain classes of per- sons and certain dangerous occupations and certain skilled trades are in constant use in the different States. Licenses are sometimes employed and up- held by the judges as means of regulation. The legislation is sustained by the judges which prohibits sales of oils for illuminating purposes unless con- forming to a proper test, although the process may have been patented.^- So, the sale of any pistols except such as are used in the army and navy may be prohibited by statute. ^^ The application of the police power to the regula- tion of business in the interest of public health and safety are innumerable, and the judges declare new instances of such applications to be sustainable, sub- 21 Butchers' Union Co. v. 22 Patterson v. Ky., 97 U. S. Crescent City Co., Ill U. S. 744; 501. Crowley v. Christensen, 137 U. 23 Dibbs v. State, 39 Ark. 353. S. 86. 92 PUBLIC HEALTH AND SAFETY. ject to the test of reasonableness to be applied by the judicial tribunals. That is to say, the legislature cannot destroy or drive out particular trades or oc- cupations under the mere suggestion that they are harmful. For example, an ordinance making it an offense to carry on a public laundry within the habit- able portion of a city cannot be sustained.^* Per- haps, the most conspicuous instance of judicial declaration upon this subject is in the strong opinion of Mr, Justice Matthews.^^ There it was held that an ordinance which by its practical administration makes an unfair discrimination without regard to the competency of the individual or the propriety of the place selected for the carrying on of the business cannot be sustained.-^ Licenses when used for regu- lation are not in any sense contracts. A license is a mere permit which may be revoked at any time or to which new conditions may be attached. Employ- ments affecting the public health and safety are almost uniformly subjected to licenses; such em- ployments as those of bakers, dealers in rags, meats and provisions, milk, liquors, explosives, iDatent med- icines and the calling of hawkers, itinerant medical practitioners, market men, plumbers, scavengers, street musicians and so forth, and the cases are very numerous. Skilled trades are very commonly regu- 24 Stockton Laundry Case, 26 26 See also Matter of Lee Sing, Fed. 611. 43 Fed. 359. 25 Tick Wo V. Hopkins, 118 U. S. 336. PUBLIC HEALTH AND SAFETY. 93 lated and the regulations are sustained by the judges. For example, it is usual for the State to provide by law that no person shall be employed as an engineer by railroads, who cannot read the printed time tables or handwriting, and to require that public transportation companies shall refuse employment to all persons who use liquor. So, also persons who cannot distinguish colors, or are afflicted with what is called color blindness are for- bidden to be employed. The sale of unwholesome food was an offense at the common law and has been forbidden very gener- ally by legislation under the police power of the States. Regulations upon this subject forbidding such food to be bought or sold are uniformly sus- tained by the courts. Sometimes regulations made by the State conflict with the Federal power over commerce, a subject which is treated in another place. If such regulations simply affect interstate commerce incidentally, they will not be held in- valid.^^ The kindred subject of water supply has led to much legislation.-^ Adulteration of food is prohibited under the police power and statutes are upheld preventing fraud and deception in regard to food and dairy products. Some of these statutes and decisions concerning them are considered in an- other place.^^ The right to establish public mar- 2T Burrows v. Delta etc. Co., J. L. 88; State v. American Pow- 106 Mich. 594. der Co., 50 N. J. L. 75. 28 See State v. Wheeler, 44 N. 29 Butler v. Chambers, 36 94 PUBLIC HEALTH AND SAFETY. kets and to prohibit private markets has been main- tained under the police power, but a street cannot be appropriated for the use of the public by the Legis- lature without making compensation to the owners of adjoining lands.^*' No private right of action arises against a municipality for maintaining a mar- ket on premises condemned for that purpose, al- though it may result that the highways in the neigh- borhood are obstructed to the injury of individuals.^* Legislation forbidding private markets within cer- tain limits is sustained. Plenary power exists in municipalities with regard to markets.^^ Regula- tions, as to hawking, peddling and the like exist in all the States and there is little conflict of author- ity, if any, with regard to the exercise of the police power upon these subjects. The power of regulation is very commonly exercised by means of licenses.^^ The rights of individuals and the validity of their lawful callings cannot be abrogatetd under cover of police regulations for the public health, if it is clear that such is not the real purpose of the enactment. Indeed it is a princii^le of universal application under the judicial decisions upon the point that the legislation must be in good faith and not merely colorable, and it is competent for the courts to de- termine this point, and the courts are not bound Minnesota 69; Johnson v. Sy- si Henkel v. Detroit, 49 Mich, mington, 43 Cal. 242. 249. Cooley, J. 30 State V. Laverack, 34 N. J. 32 Twelfth St. Market Co. v. L. 201, R. R., 142 Pa. St. 80. 33 Ash V. People, 11 Mich. 347. PUBLIC HEALTH AND SAFETY. 95 either by the title or by the body of the act setting forth or reciting matters which may be judicially noticed by the courts as contrary to the fact. License fees cannot be excessive and this may be the subject of judicial decision.^* Kegulations to prevent fires are within the scope of the police power, as has been frequently determined. The removal of buildings for the purpose of preventing the spread of fires is authorized. Forbidding the maintenance of wooden structures in a compact portion of the city is a power frequently exercised and clearly main- tainable, but the letter of the regulation must be plainly within the authority conferred by the legis- lature of the State. Related to this subject are laws prohibiting the keeping of explosive substances or highly inflam- mable substances within certain limits. The subject of building laws is also a related topic. Municipal- ities are very generally authorized to control the construction of buildings and to prevent the erection or maintenance of unsafe buildings. Such regula- tions are purely police regulations. The determin- ation by the inspectors under these statutes cannot be in general reviewed or reversed by the courts. Building laws must be reasonable and not interfere unnecessarily with the rights of property.^^ Legis- lation upon the subject of fire escapes to be attached 34 Chaddock v. Day, 75 Mich. 35 pire Dept. v. Atlas S. S. Co., 527; Austin v. Murray, 16 Pick. 106 N. Y. 506. 126. 96 PUBLIC HEALTH AND SAFETY. to buildings is held not to interfere unreasonably with the use and enjoyment of private property .^^ So also elevators may be regulated for the protection of persons entering the buildings. Particular uses of buildings may be forbidden and it is competent for the legislature to declare that any business consid- ered injurious to the public, such as the sale of liq- uors shall not be conducted in certain buildings or places. But buildings themselves cannot be abated for violation of such regulations.^^ The regulation of railroads under the police power is considered in another place. Such regulations are sustained upon the ground that the franchises and property of the corporation are affected with a public interest. Such regulations may enlarge common law obligations, but must be reasonable and it is within the judicial power to determine whether or not a particular regulation is reasonable. This is strictly a judicial question.^^ For example, where it did not appear that a railroad crossing was particularly dangerous, or more so than other crossings, a re- quirement in a city ordinance that a flagman should be kept by day and a red lantern by night, there being but a single track passed over by all trains, it was held that the requirement was not a reason- able one, and that it was within the constitutional 36 Fire Dept. v. Chapman, 10 37 Welch v. Stowell, 2 Doug. Daly 377; Willy v. Mulledy, 78 Mich. 332. N. Y. 310. 38 R. R. Co. V. Jacksonville, 67. 111. 37. PUBLIC HEALTH AND SAFETY. 97 limitation upon the exercise of the police power.^*^ Laws requiring trains to come to a stand before passing draws in bridges or before passing tracks of other companies are sustained. In general the legis- lature may judge whether the public good requires such legislation, and in doubtful cases, the opinion of the legislature is held by the judges to be final and not reviewable by the courts.*^ It is quite unnecessary to give examples of the very numerous and ordinary regulations of R. R. companies by the legislatures or the municipalities with reference to the safety of passengers, trainmen and the general public. Plenary power is very commonly conferred upon municipalities over rail- roads within the corporate limits to compel them to provide protection against injury to persons and property. Boards or commissions are very gener- ally appointed by the State with power to inspect the working and management of railroads. The cre- ation of such boards is upheld by judicial decisions."*^ And under the police power the State may even require the companies to pay the salaries of the State board.^2 But as shown in another place, where rates are fixed by such boards, the reasonableness 39 D. L. & W. R. R. V. E. 41 R. R. Com. Cases, 116 U. S. Orange, 41 N. J. L. 327; Sloan v. 307; Georgia R. R. v. Com., 78 Pacific Ry, 61 Mo. 24. Ga., 694; R. R. Com. v. Portland 40 Instances of regulation are Co., 63 Maine 269. collected by Mr. Justice Gray in 42 Charlotte R. R. v. Gibbes, Hartford Ins. Co. v. Chi. St. Ry., 142 U. S. 386. 175 U. S. 101. 98 PUBLIC HEALTH AND SAFETY. of such rates is a question for the judges. In closing this chapter, it may be well to employ the language of Mr. Justice Gray in a dissenting opinion, concurred in by Justices Harlan and Brewer :^^ "The police power includes all measures for the protection of the life, the health, the property and the welfare of the inhabitants, and for the promotion of good order and public morals. It covers the sup- pression of nuisances, whether injurious to the pub- lic health, or to the public morals, like gambling houses and lottery tickets.*^ This power, being necessary to the maintenance of the authority of local government, and to the safety and welfare of the people, is inalienable. As was said by Chief- Justice Waite, referring to earlier decisions to the same effect 'No legislation can bargain away the public health or the public morals. The people them- selves cannot do it, much less their servants. The supervision of both of these subjects of governmen- tal power is continuing in its nature and they are to be dealt with as the special exigencies of the moment may require. Government is organized with a view to their preservation and cannot divest itself of the power to provide for them. For this purpose the largest legislative discretion is allowed, and the dis- cretion cannot be parted with any more than the 43Leisy v. Hardin, 135 U. S. v. Hyde Park, 97 U. S. 659; 128, Phalon v, Va., 8 How, 163, 168; 4* Slaughterhouse Cases, 16 Stone v. Mississippi, 101 U. S. Wall. 36, 62, 87; Fertilizing Co. 814. PUBLIC HEALTH AND SAFETY. 99 power itself. '^^ Tlie police power extends not;o?\i7 to things intrinsically dangerous to public health, such as infected rags or diseased meat, but, to things which, when used in a lawful manner, are subjects of property and commerce, and yet may be used so as to be injurious or dangerous to the life, the health or the morals of the people. Gunpowder, for instance, is a subject of commerce and of lawful use, yet, because of its explosive and danger^ous qual-; ; ity, all admit that the State may regulate itske'eping and sale. And there is no article, the right ,?)f. the State to control or to prohibit the sale or manufac- ture of which within its limits is better established, than intoxicating liquors.^® In Beer Co. vs. Mas- sachusetts, above cited, this court, affirming the judgment of the Supreme Judicial Court of Mas- sachusetts, reported in 115 Mass., 153, held that a statute of the State prohibiting the manufacture and sale of intoxicating liquors, including malt liquors, except as therein provided, applied to a corporation which the State had long before chartered, and authorized to hold real and personal property for the purpose of manufacturing malt liquors. Among 45 Stone V. Miss., 101 U. S. 814, Iowa, 18 Wall. 129; Beer Co. v. 819; Butchers' Union Co. v. Mass. 97 U. S. 25; Tiernan v. Crescent City Co., Ill U. S. 746, Rinker, 102 U. S. 123; Foster v. 753; N. 0. Gas Co. v. La. Light Kansas, 112 U. S. 201; Mugler Co., 115 U. S. 650, 672; N. O. v. v. Kansas, 112 U. S. 623; Kidd Houston, 119 U. S. 265, 275. v. Pearson, 128 U. S. 1; Eilen- 46 License Cases, 5 How. 504; becker v. Plymouth Co. Court, Downham v. Alexandria Coun- 134 U. S. 31. cil, 10 Wall. 173; Bartemeyer v. 100 PUBLIC HEALTH AND SAFETY. the reasons assigned by this court for its judgment were t,h« following: 'If the public safety or the pub- lic morals require the discontinuance of any manu- facture or traffic, the hand of the legislature cannot be stayed from providing for its discontinuance, by ;; any incidental inconvenience which individuals or corporations may suffer.' 'All rights are held sub- ject to the, police power of the State/ 'Whatever ;■ differenACjS of opinion may exist as to the extent and ; ' boundaries of the police power, and however difficult "it maj^ be to render a satisfactory definition of it, there seems to be no doubt that it does extend to the protection of the lives, health and property of the citizens, and to the preservation of good order and the public morals, and the legislature cannot, by any contract, divest itself of the power to pro- vide for these objects. They belong emphatically to that class of objects which demand the application of the maxim, salus populi suprema lex; and they are to be attained and provided for by such appro- priate means as the legislative discretion may devise. That discretion can no more be bargained away than the power itself.' " CHAPTER YII. THE STATE IN RELATION TO ITS POLICE POWER OVER CORPORATIONS. A corporation is an institution of civil govern- ment. The State may control the corporation which it has created in like manner as Parliament has always controlled corporations in England, if con- stitutional provisions do not stand in the way, and in like manner as it may control natural persons.^ The number of corporations in the several States and the property and business interests in their hands have produced innumerable decisions regard- ing the exercise of the police power over them. In general, it may be said as above that the power over the artificial person is the same as that over the natural person, under the judicial decisions. Before the New York constitution abolished the creation of corx^orations by special act, they were almost uniformly created by charters from the legis- latures. A statute of Pennsylvania in 1794 and one of Michigan of 1807 provided that religious corpora- tions might be organized by signing and recording articles of association and during the last half cen- 1 Union Canal Co. v. Gilfillin, S. 645; R. R. Co. v. Md., 21 Wall. 93 Penn. 95; Sanders v. Ins. Co., 456. 44 N. H. 238; Boyd v. Ala., 94 U. 101 102 POLICE POWER OVER CORPORATIONS. tury, corporations have been almost exclusively created under general laws passed by the legislature and providing for articles of association, setting out the names of the proposed corporators, the pur- poses, the amount of the capital stock, the par value of shares, and the amount of stock actually paid in, and the paper being signed, acknowledged and filed, the corporation comes into existence. The Federal Supreme Court observes that such articles are in a sense ex parte, that their formation and execution do not take place under the super- vision of any official authority. They are, say the court, the production of private citizens, gotten up in their interest and stimulated by their zeal for their personal advantage rather than the general good. These articles, further said the court, neces- sarily assume, by the sole action of the corporators, enormous powers, many of which have been con- sidered of a public character and affecting the inter- ests of the public largely and seriously.^ The powers of such corporations have been con- sidered and strictly construed by the same court. It was declared that the powers are simply such as the statute confers and that the enumeration of them implies exclusion of all others.^ The charter of cor- porations so formed consists of the statute under which the corporation exists and of the articles of 2 Oregon Ry. & Nav. Co. v. S. 71; Pa. Ry. Co. v. St. Louis Oregonian Co., 130 U. S. 1. etc Co., 118 U. S. 290, 309. 3 Thomas v, R. R. Co., 101 U. POLICE POWER OVER CORPORATIONS. 103 association by which it is formed.^ The police power of the State is exercised over such corporations with great freedom for the general good. In some of the States there is a State Board of Control of corporations, and no private business cor- poration is allowed to be organized or do business without the approval of that board upon published notice and opportunity to be heard by any citizen. Such boards are copied from the boards with such powers existing in France. In some States, foreign corporations are not permited to do business without obtaining leave from such a board. In Massachu- setts and other States, corporate powers are not allowed to exist until the full amount of the pro- posed capital is paid or secured. In New York and Khode Island and other States, all stockholders of a manufacturing corporation are liable as partners for its debts until the capital has all been paid in and evidence of that fact has been placed in the public records. In many of the States, all corporate books and records are made open to the inspection of stock- holders and creditors and the Board of Control and no mortgage or floating debt is allowed beyond half of the value of the assets and no mortgage at all without the sanction of the Board of Control. In some States mortgage bondholders who furnish capital are treated as preferred stockholders and entitled to vote the same as common stockholders for * Van Etten v. Eaton, 19 Mich. 187. 104 POLICE POWER OVER CORPORATIONS. the board of directors. In other States, stock and bond issues are restricted by law to actual expendi- tures. All these provisions have been sustained by the courts as a proper exercise of the police power of the State over corporations, but to cite and re- view the cases would extend too much the limit of this book. Perhaps the most striking example of the develop- ment of the law by judicial decisions is found in the American cases touching the charter of a corpora- tion, bringing the charter within the meaning of the term, contract, under the constitutional provision in the Federal Constitution preventing the State from passing any law impairing the obligation of a con- tract. In the jurisprudence of the mother country where, as stated above, there are no constitutional limitations, nothing similar to these decisions can be found. The earliest case arose in 1819 and is deemed the most celebrated decision of the Federal Supreme judges.^ The State of New Hampshire had passed a law taking the governing power from the college and substantially placing that power in the State. The judges said the charter was not a grant of politi- cal power, capable of modification by the State, but was a contract for the security and disposal of grants bestowed in trust for a charity. The trustees did not assent to and accept the change. The turning point of the case was the meaning of the word con- tract. Dartmouth College v. Woodward, 4 Wheaton, 518. POLICE POWER OVER CORPORATIONS. 105 The college case was itself a development of the law as laid down in the Georgia land case.*' That case was an action by Fletcher for breach of cove- nants in a deed made by Peck that the legislature had the authority to sell to Peck's grantors. Four of the five judges held that the grant from the State was an executed contract by the grantor not to re- assert the title granted. If a grant of land was a con- tract, it was but a step further to hold that a grant of franchise was a contract. The college case was also a development of the New Jersey tax case.''^ An act passed by the colony of New Jersey, in consider- ation of a release of title by Indians, declared that the land purchased from them should not be taxed. The court held that this act constituted a contract, which could not be impaired by a subsequent repeal- ing act. In reality, it is from this case, and not from the college case, that the doctrine is derived that a legislature may abdicate its power of taxing, which is the main power of government, and make an ir- revocable contract with corporations for exemption from taxation. The college case has been justly regarded as a bul- wark of private property. The inviolability of pri- vate property had been protected by the fundamen- tal law of every one of the original thirteen States, before the adoption of the Federal Constitution. These States had adopted the 39th article of Magna 6 Fletcher v. Peck, 6 Cranch. t New Jersey t. Wilson, 7 87. Cranch. 164. IQQ POLICE POWER OVER CORPORATIONS. Charta against arbitrary spoliation, and the rights in general set forth in that instrument. The con- stitution of the new government, in inserting the provision as to contracts, did substantially the same thing. This was emphasized by the first eleven amendments protecting the States from Federal power, to which the civil war amendments after- wards subjected them. The numerous decisions set- ting aside acts of State legislatures avoiding or abrogating contracts, have been, in the view of the profession in general, a benefit to the country. The 14th amendment in 1868 amounted to a solemn ap- proval of those decisions, and still further confirmed the doctrine of the sacredness of private property. The next important step in the further develop- ment of the law by judicial decision in this regard occurred in 1837.^ Almost forty years later, in 1876, the so-called Granger cases^ exhibited a still further and very remarkable development of the law by the introduction into our constitutional jurisprudence of the doctrine of the presumed dedication of private property, corporate or not, to public use and the affirmative right of the legislatures of the States to fix the amount of compensation to be charged. While the State may regulate rates under the police power, the doctrine of these cases subject the exer- 8 Charles River Bridge v. 94 U. S. 164; C, M. & St. P. R. Warren Bridge, 11 Peters 420. R. v. Ackley, 94 U. S. 179; W. & 9Munnv. Illinois, 94 U. S. 113; St. P. R. R. v. Blake, 94 U. S. C. B. & Q. R. R. V. Iowa, 94 U, 180; Stone v. Wisconsin, 94 U. S. S. 155; Peck v. C. & N. W. R. R., 181. POLICE POWER OVER CORPORATIONS. 107 cise of the power to the prohibitions of the 14th Amendment and declares that such regulations shall be reasonable and that the courts may determine in judicial proceedings whether given rates are reason- able or not. The Granger cases are an example of the way in which judicial decisions are influenced by public opinion in a free country like ours. The Chief Jus- tice, who delivered the main opinion, was placed on the bench from the Mississippi valley and was thoroughly familiar with the transportation busi- ness, and with the changes of time and circumstance, and under his lead the judges went outside of the contract between the State and the corporation through its charter, and discovered authority for the interference of the State with the charges of corporate carriers in the fact that the public gener- ally are affected by the business of transportation. It is plain that the doctrine in these cases was the result of the general feeling in the community and in the profession against pushing the doctrine of the college case to excess. While the judges agreed that it was too late to contend that a charter is not a contract, within the meaning of the constitutional provision, they said that the contract contained no exemptions from legislative interference as to charges, which exemptions might have been inserted in the charter, and that the corporation had spent money and had mortgaged its income, charged with 108 POLICE POWER OVER CORPORATIONS. knowledge that the legislature had the right to in- terfere. This development of the law concerning the exer- cise of the police power may properly be called the most important yet made. The line of argument used by the judges would have saved the act of New Hampshire of 1816 with regard to the Dartmouth College charter, because that charter did not con- tain any exemption from interference by governmen- tal power. It is not difficult to see why the decision of 1876 differed from the decision of 1819. In 1819, the country was poor and everybody was glad to encourage investments by foreign capitalists or by domestic capitalists. The main business of our people was to reclaim the wilderness and develop the resources of our great country. The unforeseen and astonishing inventions which greatly increased the business of transportation were adjudicated upon by the judges of the Federal Supreme Court, steadily, upon the principles of the college case, and it cannot be denied that this course of adjudication was largely the source of the success of the great enterprises which so much benefited the country. At the same time and from the same influences, cor- porations had become remarkably numerous and in- dividual fortunes had thereby been increased in such a way as to impress the majority of the people with the idea that our political institutions were threatened, and to create the purpose among the electors of compelling a departure from those prin- POLICE POWER OVER CORPORATIONS. 109 ciples of our constitutional jurisprudence, drawn from the college case, which are supposed to, and which actually do, greatly encourage and protect the accumulation of property. All decisions of courts as well as statute laws are affected and modi- fied by the general sentiment of the community and the legal profession ; and the feeling of apprehension with regard to the safety of our institutions in the presence of corporate wealth, undoubtedly affected the Federal Supreme Court in the Granger cases. The development of the law touching the police power over corporations and concerning the doctrine announced in the college case has come very lately under review in the decisions holding that there is implied in the grant to a carrying corporation of the right to construct and operate a railroad, a grant of a right to collect such tolls as will enable the company to successfully operate and return some profit to the investors. That there is such an impli- cation is fully determined.^^ In the Nebraska case Mr. J. Harlan said : "But de- spite the difficulties that confessedly attend the proper solution of such questions, the court cannot shrink from the duty to determine whether it be true, as alleged, that the Nebraska statute invades or destroys rights secured by the supreme law of the land. No one, we take it, will contend that a 10 Reagan v. Farmers' L. & T. 527, commonly called the Ne- Co., 154 U. S. 362, 393, middle; braska case. Smyth V. Ames, 169 U. S. 466, 110 POLICE POWER OVER CORPORATIONS. State enactment is in harmony with that law simply because the legislature of. the State has declared such to be the case; for that would make the State legislature the final judge of the validity of its enact- ment, although the Constitution of the United States and the laws made in pursuance thereof are the su- preme law of the land, anything in the constitution or laws of any State to the contrary notwithstand- ing. Art. VI. The idea that any legislature. State or Federal, can conclusively determine for the people and for the courts that what it enacts in the form of law, or what it authorizes its agents to do, is con- sistent with the fundamental law, is in opposition to the theory of our institutions. The duty rests upon all courts, Federal and State, when their juris- diction is properly invoked, to see to it that no right secured by the supreme law of the land is impaired or destroyed by legislation. This function and duty of the judiciary distinguishes the American system from all other systems of government. The per- petuity of our institutions and the liberty which is enjoyed under them depend, in no small degree upon the power given the judiciary to declare null and void all legislation that is clearly repugnant to the supreme law of the land." In the Reagan case, rates established by the rail- way commission of Texas, were enjoined as unrea- sonable and unjust, admitting the power of the State to establish rates. The holders of the shares and bonds of the company sought protection against POLICE POWER OVER CORPORATIONS. m legislative inyasion and destruction of the values of their property. The State statute declared that in certain cases, the rate fixed by the commission should be conclusively deemed reasonable and law- ful, but the decision of the highest judges is that the reasonableness of the rates may be reviewed by the court s.^^ The principle in the Granger cases has recently been reafiflrmed.*^ The judges reviewed and ad- hered to the case of Munn and considered its appli- cation to a case decided in the New York Court of Appeals. An act of New York in 1888 provided that the maximum charge for the elevating of grain should not exceed f c. a bushel and that only the actual cost of trimming or shoveling should be charged, and the court held that the act was a legitimate exercise of the police power of the State over a business affected with a public interest. It was claimed on the part of Budd that the statute of New York was against the 14th Amendment in depriving the citizen of his property without due process of law, and in forbidding the citizen to make a profit upon the use of his property or labor, and that the police power extends only to property or bus- iness devoted to the public use by its owner through a grant to the public of a right to demand its use; and it was said further that the elevators were pri- 11 See Pingree v. M. C. R. R., ter v. Turnpike Co., 33 L. R. A. 118 Mich. 314; note to Winches- 177. 12 Budd V. N. Y., 143 U. S. 511. 213 POLICE POWER OVER CORPORATIONS. vate property not affected with any public interest and therefore not subject to the regulation of rates. The Court of Appeals had ruled the contrary of these suggestions in the Budd case, and had declared that the case fell within the Munn case, and within the principle which permits the legislature to regulate the business of carriers and ferry-men and hackmen and interest upon the use of money; that the criti- cism to which the case of Munn had been subjected proceeded upon a limited and strict construction and definition of the police power and that there was little reason for a narrow interpretation of that case or for hampering the legislative power in dealing with the varying necessities of society and new circumstances calling for legislative interven- tion to guard the public interest. The judges said that they had determined in the Sinking Fund Cases,^^ that it was settled by the Munn case that v/hen any business is a matter of such public interest and importance as to create a monopoly to which the citizen must resort and by means of which a trib- ute might be exacted from the community, the busi- ness then becomes subject to regulation by the legis- lative power. Justice Bradley said that this was the principle of the Munn decision. So the judges said in another case that the govern- ment might regulate the price at which water might be sold by one who enjoys a virtual monopoly of the sale.^'^ 13 99 U. S. 747. 1* Spring Valley Water Works V. Schottler, 110 U. S. 347. POLICE POWER OVER CORPORATIONS. 113 It is particularly to be remarked that in the Ele- vator Cases of Munn and Budd, there was presented the question of a private citizen or unincorporated partnership engaged in a warehouse business, en- tirely free from any claim of right or contract under any act of incorporation of the State, and entirely free also from any question of transportation through several States; and the judges went the length of determining that if the business in which one is engaged is a public business, where his ser- vices may be required by the public, it may be regu- lated by statute determining what shall be a reason- able compensation and fixing a maximum. Mr. Justice Gray said^^ that thus limiting the rate or charge for services rendered in public employ- ments does not establish any new principle in the law, but simply gives a new effect to an old prin- ciple. This is what we may call properly the de- velopment of the law by judicial decisions. The State judges have in general reached the same conclusion as the Federal judges in regard to this principle.^^ The judges of Illinois and Ohio declared that although warehousemen have derived no special privileges from the State but merely exercise the business of storing and handling grain for individ- uals, yet the State may fix the maximum charge to be made by the person carrying on the business. The 15 Dow V. Beidelman, 125 U. S. i« Ry. v. Ry., 30 Ohio St. 604, 680, 686. 616; Ruggles v. People, 91 111. 256, 262. 114 POLICE POWER OVER CORPORATIONS. Supreme judges of Alabama^'^ ruled that the statute regulating and controlling the transportation of cotton, in a particular condition of it, was a mere police regulation which could be sustained, if in the opinion of the law-making power agricultural labor would be demoralized without the operation of the statute. The judges in Kentucky^ ^ said that the pro- prietors of tobacco warehouses were conducting a public employment such as made them subject in their charges and methods of conducting business to legislative regulations, as having a practical monop- oly of the business. The judges in Massachusetts^^ stated that nothing is better established than the power of the legislature to make police regulations declaring how property may be used, and how busi- ness may be carried on, even though such regula- tions may interfere to some extent with the full en- joyment of private property without compensation, and held that common law rules declaring or limit- ing the right to enjoy property may be changed as occasion may require. The judges in Nebraska^*' said that whenever an individual or corporation un- dertook to supply a public demand, arising from the requirements of commerce, such as public tele- phones, the demand must be supplied to all alike without discrimination and that, too, without the existence of any statute. They said that whenever "Davis V. State, 68 Ala. 58. i9 Sawyer v. Davis, 136 Mass. 18 Nash V. Page, 80 Ky. 239. 515. 20 Webster Telephone Case, 17 Nebraska 126. POLICE POWER OVER CORPORATIONS. 115 any person or company is carrying on a business affected with a public interest, there must be no discrimination in favor of or against any person. The same doctrine was applied to telephones in Indiana,-^ where the judges said that the State may prescribe a maximum price. The same doctrine was applied by the judges in Maryland with regard to telephones.^^ Undoubtedly, we must now regard the principle in the Munn case as firmly established. In the case of Budd, there were three dissenting judges who based their opinion upon the ground that the doc- trine of the majority of the court places a public interest in the use of property upon the same basis as the public use of the property itself. The dissenting judges said that property can be considered as de- voted to public use only when the use is one which the public, organized as a State, has a right to create and maintain, and therefore one in which all the pub- lic have a right to share. The dissenting judges said that there is hardly any propei-ty in whose use the public has no interest; that this interest is a very dif- ferent thing from a public use. The dissenting judges said that the paternal theory of government is odious; that the utmost liberty should be allowed to the individual, and the fullest protection to him and to his property; and that if the State may regulate 21 Hockett V. State, 105 Ind. 22 Chesapeake Telephone Co. 258. V. B. & 0. Tel. Co., 66 Md. 414. 116 POLICE POWER OVER CORPORATIONS. the price of one service, not a public service, or the compensation for the use of one kind of property not devoted to public use, it may with equal reason regu- late the price of all services and the compensation to be paid for the use of all property. And the dis- senting judges predicted that the time would come when the folly of the doctrine of the majority of the court would become so apparent that the courts would hasten to declare that the State can prescribe a fixed compensation only when it has granted a special privilege in the creation of a corporation or when the services are actually public services, or the property is in fact devoted to the public use. When the Budd Case was in the Court of Appeals of New York, Judges Gray and Peckham dissented and cited a case where Judge Peckham had reviewed the cases and text books.-^ These judges said that the New York statute regulated the prices charged by an individual in the prosecution of his private business upon the ground that the business is a vir- tual monopoly, and that the interests of trade and commerce and the welfare of the State required that charges should be regulated by the State. The dis- senting judges declared that this plea for the exten- sion of the police power so far as to interfere with the conduct of legitimate business, finds no support in reason, and tends to nullify that provision of the Constitution which is supposed to guarantee to each 23 People V. Walsh, C N. Y. S. 554. POLICE POWER OVER CORPORATIONS. in individual that he shall not be deprived of liberty or property without due process of law. And the dis- senting judges declared that the theory and frame of our government do not involve the idea that so great a power should be lodged in the legislature; that the consequences may be that we will have no protection against socialistic laws; that, in fact, the legislature will say to the citizen "because your busi- ness has become advantageous and necessary to a large portion of the public, you shall not be allowed to pursue it unless you reduce your charges to a rate fixed by us." And they said that the police power cannot be stretched to reach such a case, if we con- tinue to have any respect for the provisions of the Constitution. Regulation of employments affected with a public interest is now general in nearly all the States. For example, the "Transportation Cor- poration Law" of New York^^ embraces ferry, navi- gation, stage-coach, and tramway corporations; pipe-line, gas, electric-light, and water-works cor- porations; telegraph and telephone corporations; turnpike, plank-road, and bridge corporations. The principle of the Granger cases has also been reaffirmed in the Dakota case^^ and the Minnesota case.26 In the latter case, the Supreme judges in Minnesota held that the decision of the railroad com- 24 N. Y. Laws 1890, ch. 566, 25 Brass v. N. Dakota, 153 U. amended by L. 1892, ch. S. 391. 617. 20 Chicago R. R. v. Minn., 134 U. S. 418. 118 POLICE POWER OVER CORPORATIONS. mission as to charges whicli are reasonable was con- clusive and that in a proceeding by mandamus against the company to compel obedience to the order of the commission, the reasonableness of the rate could not be controverted ; but the Federal Su- preme Court disafllrmed this proposition, with three dissenting judges. In the Michigan Passenger Rate Case^^ the court below sustained the power of the legislature to fix rates without any judicial inter- ference, and the Federal Stipreme Court affirmed the decision, but put its opinion upon the ground that the position of the railroad company could not be upheld upon the agreed statement of facts. In other words, it was held not to be shown that the rates in question did not actually afford the carrier any com- pensation at all, and further, that it was not shown that the rates would not afford a reasonable compen- sation if the business should be properly managed. Evidently, this latter observation opens the way for deciding in favor of the rates established by the commission in any case. However, it cannot be de- nied that there are practical difficulties in the way of courts reaching a just decision in cases of this character.^'"^ In the original College case, the Supreme judges of New Hampshire-^ held merely that the college was 27 Chi. etc. Ry. v. Wellman, 29 Dart. Coll, v. Woodward, 1 143 U. S. 339. N. H. 111. 28 See C, M. & St. P. Ry. v. Tompkins, 176 U. S. 167. POLICE POWER OVER CORPORATIONS. 119 a public corporation, because the corporators had no private interest in the public educational charity, and that, therefore, being a public corporation, it was subject to regulation. The Federal Supreme judges, however, declared the property- to be a pri- vate grant to the corporators in consideration of the future performance of duties by them, and declared that this grant was a contract, the obligation of which was impaired by the change made in the col- lege without the consent of the corporators. Mr. Justice Bradley said in 1878,^° that the College de- cision declaring charters to be contracts was a sur- prise to many statesmen and jurists and operated to deprive the State of nearly all control over corpora- tions of their own creation, and also induced a lib- eral construction of resei^ations of power to alter, amend or repeal the charter. The College case affords an example of the develop- ment of the law in another particular. The New Hampshire court constrned the grant creating the corporation as erecting a public corporation, and by a principle before that time established and of ex- treme importance. State laws were held rules of de- cision in the Federal courts. ^'^ It has been, further- more, universally held that the construction of a State law by the highest court of the State is a part 30 Sinking Fund Cases, 99 U. 3i jud. Act 1789, sec. 34; R. S. S. 748. U. S. § 731. 130 POLICE POWER OVER CORPORATIONS. of the law itself.^- The Federal judges have admitted that ordinarily the construction of the State statutes by the State judiciary is conclusive upon the Federal court.^^ Nevertheless, the Federal judges have, in developing the law, created an exception that, al- though the State court may have construed the stat- ute as not containing any contract at all, the Federal judges may, nevertheless, give a different construc- tion to the State law, and may discover and adjudge that it does contain a contract.^^ The ground upon which the Federal judges proceed is that they cannot enforce the constitutional clause without determin- ing for themselves whether or not a contract exists. The judges have said that the point decided in the College case has been considered as settled in the jur- isprudence of the entire country, and that although murmurs of doubt and dissatisfaction are occasion- ally heard, no re-argument has ever been asked for.^^ The College charter was treated in the College case the same as if it had been a legislative act of the State.^^ In the development of the law in this regard the Federal judges have gone further yet, and held that after a statute of the State has been settled by 32 Forsyth v. Hammond, 166 mer, 109 U. S. 244, 256; M. & U. S. 506, 519. 0. R. R. v. Tenn., 153 U. S. 486. 3." Wright V. Nagle, 101 U. S. 35 Farrington v. Tenn., 95 U. 793. S. 679, 685. 34 Jefferson Bk. v. Skelly, 1 36 n. O. Water Works v. Sugar Black 436; L. & N. R. R. v. Pal- Co., 125 U. S. 18. POLICE POWER OVER CORPORATIONS. 121 judicial construction in the State court, the change of such construction has the same effect upon con- tracts as a legislative amendment would have.^'^ Upon this fundamental point of the power and pos- sible duty of the Federal judges to discover a statu- tory contract where both the Legislature of the State and the judges of the State have denied the existence of any contract at all, the doctrine of the judges in the College case remains the same at the present day. Upon this point, in Washington University vs. Rouse,^® Justices Miller, Chase and Field said, in their dissenting opinions, that they must be per- mitted to say that in deciding the validity of a con- tract, the judges had been quick to discover a con- tract in order that it might be protected, and had been slow to perceive that what was claimed to be a contract was not so by reason of the want of au- thority in those who profess to bind others, and that this had been particularly so in regard to contracts by Legislatures and by municipal bodies. This dis- sent was in a case where a Legislature had exempted a college from taxation, and twelve years later had imposed a tax. There was no declaration that the exemption should be perpetual, and the State relied upon the Charles River Bridge case; ex- Judge Curtis, for the exemption, relied upon the College case. The dissenting judges declared that the principle with 37 La. V. Pillsbury, 105 U. S. 38 g Wall, 442. 295. 122 POLICE POWER OVER CORPORATIONS. respect to the power of the Legislature to exempt from taxation must finally be abandoned, because rich corporations and individuals making contracts with the Legislatures used such appliances, as Is known they do use, to obtain exemption from the burden of supporting the government. In the development of the law in this regard, it was not at all foreseen that the principle of search for a contract would be carried into the domain of business corporations to the extent that this has been done in later years. With respect to this, two conflicting opinions have been entertained by the profession and the community. One view is that the doctrine of the College case, as applied, benefi- cially supports exclusive rights granted to some and denied to others, for the general good; the opposite view Is, that it strengthens odious monopolies con- ferred upon the few at the expense of the many. The judges have interpreted the terms of the con- stitutional clause in their ordinary meaning, and hold the word contract in the constitution to mean an agreement by two or more individuals, or between a State and a person or corporation, for a considera- tion, to do or not to do certain acts.^^ In the case of a private corporation, the future and continuous per- formance of the duties imposed by the charter con- stitutes the consideration. In a recent important 39 La. V. Mayor, 109 U. S. 283, S. 432, 444; Royal v. Va., 116 U. 288; Murray v. Charleston, 76 U. S. 592. POLICE POWER OVER CORPORATIONS. 123 case'*" the majority of the judges declined to apply the principle of the College case, because the sub- ject matter of the undisputed contract which was conceded to be contained in the charter was beyond the powder of the Legislature. The railroad company relied upon the Act of the State of Illinois of 1869, granting submerged lands in the harbor of Chicago. This Act had been repealed by a later Act of 1873. The three dissenting judges applied the College case and declared that the later statute was an arbitrary act of revocation, not passed in the exercise of any reserved power, and was, therefore, void as impair- ing the obligation of the Act of 1869, which they af- firmed to be a contract beyond all question. But the majority of the judges upheld the Act of 1873 upon the ground of the incapacity of the State to make irrepealable contracts, by conveying lands which the State held in trust for the public, as all submerged lands are held. This case is a good illus- tration both of the enormous interests which may depend upon the development of the College case, and of the astuteness with which that case may be distinguished when likely to work public harm. The majority of judges, did not, by any means, depart from the College case, but merely decided that trust property could not be conveyed away by the State to private corporations.^^ 40 Chicago Lake Front Case, ^i See 111. Cent. R. R. v. Chi- lli. Cent. R. R. v. Illinois, 146 cage, 176 U. S. 646, U. S. 387. 124 POLICE POWER OVER CORPORATIONS. The transcendent nature of the police power over the public health and the public morals, as inter- preted by the judges, is illustrated by the cases which hold that, although a State may abdicate or bargain away the overriding taxing power, yet it cannot abdicate or bargain away its governing power as respects health and morals. Contracts made by the State with regard to these subjects may be modi- lied and may even be abrogated by subsequent legis- lation. This power of abrogation or modification the judges declare w^as originally possessed by the States, and has not been done away with by the Constitution or its amendments. For example, the charter of a Lottery Co. may be amended without its consent; and also the charter of a beer manufactur- ing company may be interfered with; and the char- ter of a bone factory; and also a monopoly of the slaughtering of cattle.^- Nevertheless, some of the judges have declared that the police power is no more sacred than the taxing power, and is no more the exercise of the gov- ernmental function than is the taxing power. And this view would seem to be correct, because the tax- ing power is the highest known to the law, and upon it the very existence of the State depends. Yet the doctrine is firmly established that the taxing power may be bargained away. An illustration of judicial 42 Boyd V. Ala., 94 U. S. 645 Beer Co. v. Mass., 97 U. S. 25 Stone V. Miss., 101 U. S. 844 Fertilizing Co. v. Hyde Park, 97 U. S. 679; Butchers' Union v. C. C. Co., Ill U. S. 746. POLICE POWER OVER CORPORATIONS. 125 opinion that the taxing power and police power stand upon the same footing in this regard is found in the dissent of Mr. Justice Strong in the bone fac- tory case."*^ He held that the State may contract away the right to abate nuisances, and declared that a police regulation cannot be made by the State in the guise of an amendment to a charter, curtailing the corporate franchise. Justice Bradley said that monopolies are the bane of politics of the present day, and that in the eager pursuit of gain they are sought in every direction, and that the Constitution forbids them from being carried by legislative enact- ments into the common callings of life, so as to cut off the right of the citizen to earn his bread by the trade he has learned. It has already been shown above that in the devel- opment of the doctrine of the College case the char- ter of a railroad or bridge corporation is held to con- tain a contract, by necessary implication, not to re- duce the tolls below a point at which expense can be paid and a reasonable interest realized upon the in- vestment. Mr. Justice Field declared in his dissent in the Granger case of Stone vs. Wisconsin,^^ that the rights and privileges implied in a charter con- tract are as much a part of it as what is expressed, and that this doctrine is no longer open to discussion. It is apparent that the proposition that the public can use private property invested in railroads at a compensation not only not agreed to by the owners, 43 97 U. S. 679. 44 97 U. S. 181. 126 POLICE POWER OVER CORPORATIONS. but SO low that no profit whatever can be realized, is repugnant to common sense and to constitutional right, under the existing interpretation of the Col- lege case. Those who claim the contrary ought to advocate the taking by the State of all railroad prop- erty under the right of eminent domain. The State would then pay for the right to collect rates, which is clearly property, as unanimously declared by the judges in a recent case.^^ The State would then as- sume the whole business of transportation as well as that vital part of regulating rates of fare and freight. In Prussia, and other countries, where the paternal theory of government prevails, this is done. The principle of the College case is one thing as applied to the privileges of an ancient college for the preservation of learning and religion, and quite an- other thing as applied to the protection of some mo- nopoly contracted for with the Legislature. At the present day, probably no one doubts the wisdom of the development of the law in the Charles River Bridge case, modifying and limiting the doctrine of the College case. Eighteen years had passed since the College case. Monopolists had plied their trade around the Legislatures. The profession and the community had begun to feel that the States were likely to be crippled beyond reason in the exercise of the police power by the logical results of the Col- lege case. The judges of Massachusetts accordingly 45 Monongahela Nav. Co. v. U. S., 148 U. S. 212. POLICE POWER OVER CORPORATIONS. 127 sustained the Legislature in incorporating a second toll bridge, near an existing one, and the Federal judges were of the same opinion, and refused to dis- co-ser any contract in the charter of the first bridge. That charter did not contain the grant of an ex- clusive privilege in express terms, and the courts said that in such a charter nothing passes by impli- cation. But, suppose that the Legislature had enacted a law creating a bridge commission, and that such commission had fixed the tolls on the first bridge at such a rate as would not pay the expense of keeping the bridge in repair, to say nothing of allowing a fair interest on the investment; would not Chief Justice Taney and his associates have probably said that the contract agreeing that tolls might be collected upon the bridge might be construed as a provision that tolls might be collected sufficient in amount to pay expenses and a reasonable profit, and that a later Legislature could not take away that right? The decision in the Charles River Bridge case is the existing law as appears in the recent opinion of Mr. Justice Gray.*^ He said that every public grant, if ambiguous, is to be construed against the grantee, because an intention to grant away rights in which the whole public is interested cannot be presumed unless unequivocally expressed, or necessarily to be implied; and also because the grant is supposed to 46 Central Transp. Co. v. Pull man Car Co., 139 U. S. 49. 128 POLICE POWER OVER CORPORATIONS. be made at the solicitation of the grantee, and to be drawn up by him, and the words used are to be treated as the words of the grantee. "This rule of construction," he said, "is a safeguard of the interest of the public against any attempt of the grantee to take by the insertion of ambiguous language what could not be obtained by clear and express terms," citing the Charles River Bridge case, and others.^'^ It is also adjudged that this rule applies particularly to articles of association framed under general laws, as a substitute for a legislative charter, where the articles assume and define the powers of a corpora- tion by the mere act of association, and without any supervision of the Legislature or of any public au- thority.''^ The principle of the College case is applied at the present day in its full vigor; and when we look at the number and variety of the cases involving the principle of that case it seems that it is as enduring as the Constitution itself. These cases have arisen mainly in the southern and western States, and in what is sometimes called the debtor portion of the country. The insolvency act of Pennsylvania of 1812 was held void so far as it attempted to discharge the contract.^'' The act of Vermont of 1794, granting lands of a certain society to a town in which the 47 Dubuque & Pacific R. R. v. *« Oregon Ry. v. O. Ry., 130 Litchfield, 13 How. 66, 88, 89; U. S. 26, 27. Slidell V. Grandjean, 111 U. S. 49 F. & M. Bk. v. Smith, 6 412, 437, 430. Wheaton 131. POLICE POWER OVER CORPORATIONS. 129 lands were situated, was held void as impairing the contract contained in the grant of the lands to the society.^^ The act of Illinois, laying restrictions upon mortgage sales, was held void as impairing the obli- gation of the mortgage contract.^^ The act of the same State in regard to sales under execution was held void as impairing the obligation of previous judgments.^^ The act of Maryland taxing stock- holders in. banks, as applied to banks organized prior to the act, was held to impair the obligation of the charter.^^ The insolvency law of the same State af- fecting debts to citizens of others States, was held void as impairing the contract.^* The act of Missis- sippi declaring it unlawful for banks to transfer evi- dences of debt was held to impair the contract in the charter of the bank.^^ The act of Arkansas that taxes should be paid in par funds was held to impair the obligation of the contract in a bank's charter that its notes should be received for debts due the State, in so far as the act had application to the notes of the bank issued prior to the date of the act.^® Several statutes of the State of Arkansas withdrawing the assets of the State bank from creditors, when it was insolvent, were held to impair its contracts with its 50 Society etc. v, N. Haven, 8 f^s Gordon v. The Appeal Wheaton 464, Court, 3 How. 133. 51 Bronson & Kinzie, 1 How. 54 Cook v. Moffat, 5 How. 295. 311. sr, Bk. V. Sharp, 6 How. 301. 52 McCracken v. Haywood, 2 se Woodruff v. Trapnall, 10 How. 608. How. 190. 130 POLICE POWER OVER CORPORATIONS. creditors.^'^ The statute of Ohio, taxing the State bank, was held to impair the obligation of the con- tract in the charter.^^ The act of Alabama as to re- demption from mortgage sales by judgment creditors of the mortgagor was held to impair the obligation of contract, so far as the act affected mortgages made before the act.^^ The act of Maine repealing a prior act making stockholders of a corporation liable for the debts of the company individually, impaired the obligation of the contract as regards prior debts.^^ The act of New York authorizing the Binghamton company to build a bridge within the limits covered by the charter of the Chenango company, impaired the obligation of the contract contained in the char- ter of the latter company .^^ The act of Illinois af- fecting the provisions of law concerning taxation in the city of Quincy, which were in force w^hen the issue of its bonds was authorized, was held to impair the obligation of the contract with the bondholders.^^ The act of Tennessee that notes of the Tennessee Bank should not be received for taxes, impaired the contract in the charter, so far as the law applied to prior issues of the notes.^^ The act of Missouri as to taxes was held to impair the obligation of the con- 57 Curran v. Arkansas, 15 gi Case of the Binghamton How. 304. Bridge, 3 Wall. 51. 58 State Bank v. Knoop, 16 How 369 "■ ^°^ Hoffman v. Quincy, 4 Wall. 535. c 60 Hawthorne v. Calef , 2 Wall. 44. 59 Howard v. Bugby, 24 How. 461. C3 Furman v. Nichols, 8 Wall. 6 10, POLICE POWER OVER CORPORATIONS. 131 tract in the charter of the Home of the Friendless.^* The general taxation law of North Carolina was held to impair the contract in a railroad charter, exempt- ing the property and franchises from taxation.^^ The provisions in the constitution of Georgia, exempting property from execution, impaired the obligation of judgment so far as it applied to prior judgments.^® The railroad ordinance of the constitution of Mis- souri was held to impair the obligation of the charter of the Pacific R. R.^'^ The act of Louisiana for the delivery of bonds, under the funding act, to the Lou- isiana Levee Co., impaired the contract made with the holders of consolidated bonds.^® The taxation law of Georgia of 1874 impaired the charters of the companies consolidated into the plaintiff corpora- tion.^^ The tax law of Tennessee impaired the con- tract contained in the charter of the Planters' Bank.'^^ The tax law of New Jersey of 1873 impaired the obli- gation of the charter of the M. & E. R. R. Co.'^^ The tax ordinance of Charleston, South Carolina, of 1871, withholding the tax to the city, in paying the interest on its bonds, impaired the contract in the bonds.'^- The North Carolina constitution of 1868, exempting a debtor's property from levy, impaired the obliga- 64 Home V. Rouse, 8 Wall. 430. go Cent. R. R. v. Georgia, 92 65 Wilmington R. R. v. Reid, U. S. 665. 13 Wall. 264. to Farrington v. Tenn., 95 U. 66 White V. Hart, 13 Wall. 646. S. 679. 67 Pac. R. R. V. McGuire, 20 tin. J. v. Yard, 95 U. S. 104. Wall. 36. 72 Murray v. Charleston, 96 U. 68 Board v. McComb, 92 U. S. S. 432. 531. 132 POLICE POWER OVER CORPORATIONS. tion of prior contracts/^ The revenue law of Illinois of 1872 impaired the charter of the Northwestern University for the exemption of its property from taxationJ^ The act of Virginia as to deduction of taxes from coupons on its bonds presented for pay- ment, impaired the obligation of the contract of the State with the bondholders, when applied to coupons separated from bonds issued under the previous fund- ing act J^ The act of Wisconsin of 1872, in regard to the recovery of interest upon interest, impaired the obligation of prior contracts. '^^ The taxing laws of Louisiana for New Orleans impaired the contract in the charter of an asylum exempting it from taxa- tion J"'' The act of Louisiana of 1877, repealing a pro- vision of the Revised Statutes, impaired the obliga- tion of prior judgmentsJ^ The acts of Virginia of 1882 and 1884 impaired the contract of the State in the funding act of 1871.^^ The ordinance of New Orleans of 1881, authorizing the Louisiana Light Co. to furnish New Orleans with gas, im- paired the charter contract with the New Or- leans Gas Co.®*' The New Orleans ordinance of 1882, granting one Rivers the right to lay pipes in the streets to carry water from the Missis- T3 Edwards v. Kearzey, 96 U. '^~ Asylum v. N. Orleans, 105 U. S. 595. S. 362. 74 University v. People, 99 U. ^s Nelson v. St. Martin, 111 U. S. 309. S. 716. T5 Hartman v. Greenhow, 102 "o Va. Coupon Cases, 114 U. U. S. 672. S. 269. 7G Koshkonong v. Burton. 104 so N. O. Gas Light Co. v. La. U. S. G68. Light Co., 115 U. S. 550. POLICE POWER OVER CORPORATIONS. 133 sippi to the St. Charles Hotel, impaired the charter of the New Orleans Water Works Co.^^ The statute of Tennessee, subjecting the property of a railroad corporation to taxation, impaired the contract con- tained in an exemption clause of the company's char- ter.^^ The Supreme Court of Michigan sustained the provision of the charter of the Michigan Central R. R. Co. of 1846, with regard to the power of the cor- poration to fix its own rates, and refused to direct the issue by the company of what were called Family Mileage Tickets under an enactment of the Legisla- ture of Michigan, thus enforcing in the fullest man- ner the provision of a railroad charter as a contract, and following the N. O. Gaslight case.^^ It is, how- ever, to be noted that rights under legislative and municipal contracts are subject to reasonable regula- tion as to their use.^^ The foregoing cases, selected from a great number, illustrate the development of the law respecting the police power over corporations. These cases also necessarily hold that the Legislature which makes a grant or contract has the authority or power to make it on behalf of the State. It is held that the Legis- lature confers franchises under the power delegated 81 N. 0. W. W. Co. V. Rivers, City v. Walla Water Co., 172 U.S. 115 U. S. 674. 84 Laclede etc. Co. v. Murphy, 82 M. & 0. R. R. V. Tenn., 153 170 U. S. 75. This is so because U. S. 486. public bodies clothed with legis- 83 Pingree v. M. C. R. R., 118 lative power cannot part with Mich. 314. See also Walla Walla their functions. 134 POLICE POWER OVER CORPORATIONS. by the people. Chief Justice Shaw*^ said that, in addition to the law-making power, the Legislature, as the representative of the whole people, possesses authority to control and regulate public property and public rights, to grant lands and franchises, to stipulate for the purchase of, and to obtain, all such property, privileges, easements and improvements as may be necessary, or useful, to the public, and to bind the community by their contracts therefor; and, generally, to regulate all public rights and interests; that the established government of the State, acting through the Legislature for the time being, must de- termine whether it is best to provide for these ends by public funds, or to procure funds from individuals, who are to be reimbursed by tolls; that the Legisla- ture, in order to provide for changes in the condition of things resulting from progress of time, may re- serve the power to reduce tolls and the right to re- purchase franchises; that where contracts have been made by the Legislature in respect to such matters, upon consideration of an equivalent public benefit, and where the grantees have advanced their money to the public upon the faith of these contracts, the State is bound by the plain principles of justice, faith- fully to respect all grants and rights thus created and vested by contract. He declared that these prin- ciples are thoroughly established. Judge Shaw cited 85 B, & L. R, R. V. S. & L. R. R., 2 Gray 1. POLICE POWER OVER CORPORATIONS. 135 the opinion of Cliief Justice Parker of New Hamp- shire.®^ The judicial decisions are that the power of cor- porations organized under legislative statutes is such, and only such, as the statutes confer, conceding the rule applicable to all statutes that what is fairly implied is as much granted as what is expressed. The charter is the measure of the powers of the arti- ficial person, and the enumeration of its powers im- plies the exclusion of all others.^''^ The Federal judges have considerably restricted the power of Legislatures to make contracts. They hold that there can be no contract and no irrepeal- able law upon certain governmental subjects, declar- ing that all legislative acts concerning the public in- terests are necessarily public laws, and that every succeeding Legislature possesses the same jurisdic- tion and power as its predecessor with respect to re- peal and modification; and that it is vital to the public interests that each Legislature should be com- petent at all times to do whatever the varying cir- cumstances and present exigencies may require.®^ An illustration of the extreme liberality of con- struction of the reservation clause, commonly in- serted in charters for the last generation, and of the control over corporations exercised by the State, is 86 Piscataqua Bridge Case, 7 ss Newton v. Commissioners, N. H. 69. 100 U. S. 548. 87 Thomas v. R. R. Co., 101 U. S. 71. 236 POLICE POWER OVER CORPORATIONS. found in some recent Federal eases.^^ In the Green- wood case, the State of Massachusetts had repealed the charter of a street railway company, and trans- ferred its franchises and tracks to another company. The first company had been organized under an act of 1867. By an act of 1872, the new company was authorized to run its tracks in the same streets and over the same ground covered by the tracks of the first company, and to take possession of the tracks of that company, or of any other company, on pay- ment of compensation. Upon a bill filed by the first company it was declared that the second statute would impair the obligation of the contract under the first statute, except for the general reservation of the right of repeal, at the pleasure of the Legisla- ture, in the general statute of Massachusetts of 1831; and that, inasmuch as the second statute provided compensation for the property of the extinct corpor- ation taken by the new corporation, the second act was not unconstitutional, and must be sustained. Mr. Justice Story, in his concurring opinion in the College case, suggested that the power to control or destroy corporate rights might be reserved by the Legislature in the grant itself of a charter to the cor- poration. This suggestion afterwards was very gen- erally acted upon by the States, and the Massachu- setts act of 1831 cited in the Greenwood case above is an instance of the way in which the States have 89 Greenwood v. Freight Co., v. Hamilton, 146 U. S. 258, 270. 105 U. S. 13; Hamilton Gas Co. POLICE POWER OVER CORPORATIONS. 137 adopted Judge Story's suggestion. The importance of this reservation cannot be overestimated. During the period between the adoption of the constitution of Massachusetts and the adoption of the Federal Constitution only one corporation was created by that State, which was then nearly foremost in wealth and population. A hundred years later four-fifths of the business of the country is done by corpora- tions, and they now hold four-fifths of the property of the country, as said by Mr. Justice Field.^*' In Pennsylvania, Illinois, Missouri, New York and Michigan acts have been passed for securing the rep- resentation of minority stockholders upon boards of directors of corporations. It has been contended that the power of the majority of the stockholders to elect ail the directors, and so to fully control the corpor- ation, is a vested right of property secured by the U. S. Constitution against the interference of the State, and this proposition was considered in Penn- sylvania,^^ and the proposition was sustained upon the authority of the College case. And it was held by the judges of Pennsylvania that the statute could not be applied to a corporation organized before the time of the adoption of the statute unless the statute should be accepted by the existing corporation. Sub- stantially the same doctrine was held in Missouri.^- 90 134 U. S. 742. Pa. St. 518; Baker's Appeal, 109 91 Hays V. Commonwealth, 82 Pa. St. 468. 92 State V. Greer, 78 Mo. 188. 138 POLICE POWER OVER CORPORATIONS. In Michigan'-*^ it was determined that the minority stockholders' statute would apply to such a corpor- ation as the Michigan Mutual Life Insurance Com- pany, because the reservation in the constitution of Michigan of power to amend or alter charters au- thorizes any reasonable amendment which does not defeat or essentially impair the object of the grant. The Michigan judges also observed that they adopted the Massachusetts doctrine in regard to the interpre- tation of the reservation power.^* The judges in Michigan also declare that the inquiry should be whether the corporation, alleged to be affected by any particular amendment under the reserved power, is or is not a corporation whose business is affected by a public interest; and they said that the public is interested in the proper control of life insurance corporations whose income is drawn from the public, and the management of whose affairs affects the public as well as the stockholders. And the Michi- gan judges cited a large number of cases in which the power to alter, amend or repeal charters has been exercised. The disposition of the judges in the States where the minority stockholders' statute exists seems to be to sustain the statute. Certainly the statute changes the law which has existed for five hundred years in regard to the power of the majority of the stockhold- ers. This statute is a good illustration of the ten- 93 Atty Gen. v. Looker, 111 »* Parker v. R. R., 109 Mass. Mich. 498. 506. POLICE POWER OVER CORPORATIONS. 139 dency of the State Legislature to exercise control over corporate affairs, and the sustaining of the stat- ute by the judges is an instance of marked develop- ment of the law. The property of corporations, including their fran- chises, may be taken for public use under the power of eminent domain, on making due compensation. This power is closely allied to the police power. It is also held that franchises are property and are tax- able.^^ As before stated, the prerogatives of the crown and Parliament, at the Revolution, devolved upon the people and the States, and remained with them, except so far as partially delegated to the Federal government or limited by State constitutional pro- visions.^ The will of the people is made known by legislative enactments, and such enactments, when passed under the police power, are, in general, sus- tained by the judges if no constitutional limitation is violated. It is laid down by the Federal Supreme Court- that there never has been any difference of opinion among the judges of the Federal Supreme Court as to the doctrine that, whenever any business is affected with a public interest, that business be- comes subject to legislative control, in all respects necessary to protect the public against danger, in- 95 West River Bridge Co. v. 384; Mormon Church v. U. S., Dix, 6 How. 507; Mr. Justice 136 U. S. 57. Bradley, Calif. Pac. Ry. 127 U. 2 Georgia R. R. v. Smith, 128 S. 1, 41. U. S. 174. 180. 1 Fontain v. Ravenel, 17 How. 240 POLICE POWER OVER CORPORATIONS. justice or oppression; and in that case the judges held that the act of 1833, giving the railroad com- pany an exclusive right of transportation, with a cer- tain limitation of charges, did not create a contract exempting the corporation from the duty of reason- able requirements, as to rates, made by the Georgia State Railroad Commission in 1879. Municipal corporations possess many powers by necessary implication, e. g., that of taxation.^ But the power to establish rates of street car fare must be expressly conferred.^ Where a city ordinance pre- scribed a five cent fare, or a street railway company, and the Legislature, subsequently, fixed a three cent fare, it was held that the municipality cannot make a contract which would prevent the Legislature from regulating the fare.^ But the Federal court held that the police power of Indiana is not to be applied as against a charter agreement with that State which covers the matter of rates.® It was finally determined that a street franchise, or easement, from a municipality, is not restricted, in duration, to the term of the corporate life of the conferree company^ Power in the municipality to 3 U. S. V. N. Orleans, 98 U. S. e Cent. T. Co. v. Cit. etc. Co., 381. 82 Fed. 1; Indianapolis etc. Co. 4 Old Colony Trust Co. v. At- v. C. R. Co., 83 Fed. 529. Here lanta, 83 Fed. 39; S. C. (U. S. is a conflict between the Indiana App.), 88 Fed. 859. See also C, S. Court and the Federal Courts B. & Q. R. R. V. State, 47 Neb. in that State. 549. 7 Detroit etc. Ry. Co. v. De- 5 Indianapolis v. Navin, 47 N. troit, 22 U. S. App. 570, S. C. 64 E. Rep. 525. Fed. 628, 60 Fed. 161, 56 Fed. POLICE POWER OVER CORPORATIONS. 141 grant an exclusive privilege in its streets must be explicit!}^ conferred by the legislative and must be indispensable to the declared object of the privilege.^ Yv'henever the doctrine of the College case in- fringes upon the police power of the State, in gen- eral, the judges, as in the Chicago Nuisance case, the Mississippi Lottery case, and the Massachusetts Brewery case, have upheld the use of the police pow- er; and whenever the business is determined to be of a public character, the exercise of the police power is sustained by the judges. Corporate bodies did not, at common law, enjoy the privilege of inviolability of franchises, laid down in the College case, and they do not now enjoy that privilege in the mother country. The English uni- versity corporate bodies have always been regarded as under parliamentary control, and from time to time Parliament has introduced changes into them, and into other endowed charities far greater than the State of New Hampshire sought to impose upon Dartmouth College. The charter of that great com- mercial corporation, the East India Company, which governed many millions of people, was several times altered by Parliament, and finally, in 1858, five years after its charter had been renewed, the company was deprived of its franchise, not on any ground of for- feiture, but merely as a matter of legislative discre- tion. 867 and 54 Fed. 1. See also Peo- s Cit. St. Ry. v. Detroit Ry., pie V. O'Brien, 111 N. Y. 1. 171 U. S. 68. 142 POLICE POWER OVER CORPORATIONS. It is quite certain that corporation franchises in 17G9, when Dartmouth College was founded, were not held in England as private property, but as politi- cal privileges.^ The reservation clause now always used has simply set us back upon the common law ground, existing before the College case was decided. There never has been any agitation towards amending the contract clause of the Federal Con- stitution on account of the College case; but the 14th amendment has extended the protection of that Con- stitution to all other privileges and immunities con- cerning life and property, existing under the laws cf the States, as well as to contracts within the States. Of course regulation of corporations under the police power must not be colorable, and there must be no attempt to repeal or amend the charter by any legislation not had in good faith.^^ The State may enforce inspection of the affairs of a corporation for the purpose of ascertaining whether they perform their duty to the public.^^ In the exercise of the police power, the Legislature may adopt such regula- tions as will protect the community from losses inci- dent to the business conducted by corporation, for the purpose of protecting the public. Corporations of one State, for example insurance 9 Burke's Works, Bohn's Ed. Micli. 140; Com. v. Penn. Canal 176; 8 Am. L. Rev. 233. Co., 66 Pa. St. 41. 10 People V. P, R. Co., 9 Mich. n Com. v. F. & M. Bank, 21 285; Detroit v. P. R. Co., 13 Pick. 542; Ward v. Farwell, 97 III. 693. POLICE POWER OVER CORPORATIONS. 143 companies not engaged in interstate commerce, are not entitled to claim the right to transact business in any other State, as of course. If allowed to ex- ercise their powers in any other State, it must be upon such conditions as that other State may pre- scribe.^ - We have already referred to the regulation of rail- road companies. The variety of regulations of those companies is such as to forbid any descent into par- ticulars. The principles applicable to the regulation of those companies are the same applicable in all cases of the exercise of the police power, and the business of a railroad company is so connected with the business of the whole community as to be pecu- liarly subject to minute control by the States; and in the judicial decisions, the judges have not been disposed to limit very strictly the exercise of the police power over railroad corporations. The reason- ableness of such regulations is, however, undoubt- edly a judicial question. The method of the exercise of the police power with respect to railroads by the States is in general by creating commissioners who give their entire attention to an inspection of the management of the railroads within the State. The State may invoke the judges to compel the exercise by railroad corporations of the public func- tions with which they are clothed. The true character 12 Paul V. Va., 8 Wall. 168; elude anj' corporation of anoth- Hooper v. Calif., 155 U. S. 652; er State not in the service of Pembina etc. Co. v. Penn., 125 the Federal government, or not U. S. 1, holding a State may ex- engaged in interstate commerce. 144 POLICE POWER OVER CORPORATIONS. of the roads of such companies as public highways was first announced in N. Y./^ and this doctrine was further developed in the Federal Supreme court/* and in various cases where the w^rit of man- damus has been made use of. The writ of mandamus has been awarded to compel a company to operate its road as one continuous line/^ to compel the run- ning of passenger trains to the terminus of the road,^^ to compel the company to make fences and ca ttle- guards,^ "^ to compel it to build a bridge,^ ^ to compel it to construct its road across streams, so as not to interfere with navigation,^ ^ to compel it to run daily trains,^° to compel the delivery of grain at a particular elevator,^^ to compel the completion of the road,-- to compel the grading of its track so as to make crossings convenient and useful-^ to compel the re-establishment of an abandoned station,^* to compel the replacement of a track taken up in vio- lation of its charter,^^ to prevent the abandonment of 13 Bloodgood V. M. & H. R. 20 Re N. B. etc. R. R., 1 P. & R. R., 18 Wend. 9. B. 667. 14 Olcott V. Supervisors, 16 21 c. & N. W. R. R. v. People, Wall. 678. 56 111. 365. 15 Union Pac, R. R. v. Hall, 22 Farmers' L. & T. Co. v. 91 U. S. 343. Henning, 17 A. L. Reg. 266. 16 State V. H. & N. H. Ry., 29 23 People v. D. & C. R. R., 58 Conn. 538. N. Y. 152; N. Y. C. v. People, 12 1' People V. Rochester etc. R. Hun. 195, S. C. 74 N, Y. 302; R., 14 Hun. 373, S. C. 76 N. Y. Indianapolis R. R. v. State, 37 294. Ind. 489. 18 People V. B. & A. R. R., 70 24 state v. R. R., 37 Conn. 154. N. Y. 569. 25 Rex v. Severn & Wye Ry. 19 State V. N. E. R. R. Co., Co., 2 Barn. & Aid. 64G. 9 Richardson 347. POLICE POWER OVER CORPORATIONS. I45 a road once completed,-^ and to compel a company to exercise its franchise.-^ These cases are all ex- press instances or implied obligations arising from the charters of the railroad companies. In general, it may be said that corporations are within the police power of the State as much as natural persons, or the same as natural persons; and the State may lay upon corporations any regu- lations which might be laid upon an individual.-** In Long's case the judges said that damages sustained by the taking of the plaintiff's land might be as- sessed by the jury, notwithstanding the company's charter provided for viewers appointed by the judges. As we have already seen, the State may, under the police power, establish regulations which preclude corporations from the use of powers conferred by its charter. Indeed, where there are no constitutional prohibitions the State may control corporations to carry out the views of public policy which may be en- tertained by the particular Legislature. We have seen heretofore that the State cannot contract that it will not exercise the police power to accomplish the purposes for which government is established, and this rule applies to corporations.^^ In Pennsylvania the judges said that the State might lay upon corporations other burdens and re- 26 Talcott V. Pine Grove, 1 Union Co. v. Gilfillin, 93 Pa. 95. Flippin 144. yy Mo. Pac. R. IL v. Humes, 27 People V. A. & V. R. R., 24 115 U. S. 512; R. R. v. Md., 21 N. Y. 261. Wall. 436; Holyoke Co. v. Ly- 28 Long's Appeal, 87 Pa. 114; man, 15 Wall. r25. 146 POLICE POWER OVER CORPORATIONS. strictions than those enumerated in the charter, and that a power or right in the hands of a corporation is the same as the identical power or right in the hands of a natural person, and is subject in like manner to the control of the State.^^ This is substantially the same principle laid down in Beer Co. vs. Mass.,^' referred to in the foregoing pages. There the broad statement is that all rights are held subject to the police power of the State, and that, although the company was incorporated to manufacture liquor, yet the company must be subjected to a later ac/; prohibiting the manufacture. The judges said tha>: the Legislature could not by any contract dives-' itself of the power to provide for the protection of the public health and property, good order, and pub- lic morality. We may remark, finally, that the Federal Supreme judges have said that they were not aware of any- thing peculiar to a franchise which can class it higher, or render it more sacred than other property; that a franchise is property, and nothing more; that it is its character of property only which imparts value to a franchise, and which alone authorizes a right of action for its disturbance or its enjoyment; and that consequently a franchise occupies the same position with respect to the paramount duty of the State to promote the public good, as does the right "0 Frankfort R. R. v. Phila., si 97 u. S. 32. 58 Pa. 122. POLICE POWER OVER CORPORATIONS. I47 of the citizen to the possession of his lands.^^ And the judges further said that the State might ex- tinguish a franchise that it had granted, upon the English authority on the subject.^^ 32 West etc. Co. v. Dix, 6 How. 33 Governor etc. v. Meredith, 4 567, 551. T. R. 794. CHAPTER VIII. LIMITATIONS ON THE POLICE POWER ARISING FROM THE FEDERAL POWER OVER COMMERCE. All means of transportation are subject to the police power of the State, but at the same time that power is necessarily controlled by the Federal Con- stitution. Indeed, lines of transportation which lie wholly within a State are necessarily' subject to the commercial power of Congress, because carriage within the State cannot fail to affect carriage out- side the State as respects rates. Accordingly the Federal Supreme Court, developing some of its early decisions, declared the law of the State of Illinois, forbidding the same rate for long and short hauls to be against the Federal Constitution, because that law, when applied to carriage through other States as well as Illinois, governed the through rate.^ The doctrine in this case was a necessary development of that contained in an early case,^ decided in 1824, where the decision of Marshall furnishes a store- house of principles. The intervening cases^ led up to the decision in the Wabash case. Nevertheless, as stated in that opinion, there is a commerce which ' 1 Wabash. R. R. v. 111., 118 U. 3 The State Freight Cases, 15 S. 557. Wall. 232; Welton v. Mo., 91 U. 2 Gibbons v. Ogden, 9 Whea- S. 282; County of Mobile v. ton 1. Kimball, 102 U. S. 691. 143 FEDERAL POWER OVER COMMERCE. 149 is exclusively within a State and subject wholly to State regulation. In a Michigan case the steamer ran wholly upon the Grand River, but to carry goods destined to points outside the State, and was, there- fore, held subject to the regulation of Congress.'* Rate laws like that passed upon in the Wabash case are always defended as warranted by the police power; but the Federal Supreme Court replies to \/ this argument that, whatever may be the nature and reach of the police power of the State, it cannot be exercised over a subject confided exclusively to Congress.^ This was only a restatement of Mar- shall's holding in Gibbons vs. Ogden that none of the police powers of the State can be so exercised as to constitute a practical assumption of the powers of "^^ Congress. We may, therefore, conclude that railroad rates constituting any portion of carriage between States cannot be fixed by the State under the police power. The judges in Minnesota and North Carolina concur in this doctrine.^ Any commerce which concerns more States than one, in the language of Marshall, is not within the police power of the State, and the State may not, un- der cover of executing its police power, substantially burden interstate commerce, as was stated in the Husan case above. Nevertheless, where the legis- lation is not colorable, but is had in good faith, it 4 The Daniel Ball, 10 Wall. estate v. C. & St. P., 2 Int. 557. Com. Rep. 519; Sternberger v. 5 R. R. V. Husan, 95 U. S. 465. Ry., Id. 426. 150 FEDERAL POWER OVER COMMERCE. may be exercised on all subjects affecting health, life and personal safety, although indirectly also affecting interstate commerce. The first exposition of this rule was in the Marsh Dam case,^ where it was laid down that special local facts and circumstances may restrain the principle of the decision. The phrase "police power" is not used in the Wilson case. In that case, a dam, con- structed in a malarial marsh by the State for the protection of the public health, constituted a plain obstruction to interstate navigation, and yet the right of the State to build the dam was sustained. In upholding the quarantine laws of Louisiana, the Federal Supreme Court said that when the ques- tion is whether the statute is a just exercise of State power, or is intended by roundabout means to invade the domain of Federal authority', the judges will look into the operation and effect of the statute to discern its purpose.^ A State may not enjoin an- other State from enforcing its, quarantine laws, as burdening interstate commerce.^ State laws requiring all locomotive engineers to be licensed, although running trains between States are held to be sustainable.^^ The judges said that it has never been doubted that the entire body of law within the territorial jurisdiction of the State is sub- 7 Wilson V. The Blackbird etc. 9 La. v. Texas, 176 U. S. 1. Co., 2 Pets. 245. lo R. R. Co. v. Alabama, 128 8 Morgan Co. v. La. Board, 118 U. S. 96; Smith v. Alabama, 124 U. S. 462. U. S. 475. FEDERAL POWER OVER COMMERCE. 151 ject to change at the will of the Legislature, except as restrained by the Federal Constitution; and we may add, of course, the Constitution of the State. State laws forbidding the running of any freight trains within the State on Sunday, even on interstate railroads, are upheld.^ ^ A State police regulation re- quiring an interstate K. R. train to turn aside and stop at a town because it was a county-seat, was held to interfere with interstate commerce and therefore to be void.^- Yet such a train may be compelled to stop at a town on its route.^^ It was held that a Mississippi steamer, running between different States, was bound to admit colored persons to her cabin with whites, in conformity to a State law of Louisiana passed in the exercise of the police power, which law required such admission.^* The judges said that it was useless to try to fix any arbitrary rule, and that matters of such delicacy be- tween Congress and the State must be settled in each case upon a view of the particular rights involved; and added that in such cases even the members of the court concurring in a decison had often done so upon different grounds. Twenty years later,^^ a law of the same State regarding the separation of colored 11 Hennington v. Ga., 163 U. 265. See Gladson v. Minn., 166 S. 299. See cases collected by U. S. 427. Mr. Justice Gray in Chicago etc. i^ Hall v. De Cuir, 95 U, S. Ry. V. Solan, 169 U. S. 133. 485. 12 111. Cent. R. R. v. 111., 163 is Plessy v. Ferguson, 163 U. U. S. 162. S. 537. 13 L. S. Ry. V. Ohio, 173 U. S. ;^52 FEDERAL POWER OVER COMMERCE. and white persons into different cars, upon an inter- state railroad was also sustained. Mr. Justice Brown delivered the opinion and Mr. Justice Harlan dis- sented. It would seem quite clear that in both the Hall and the Plessy cases, the State laws were in reality regulations of commerce. On the contrary, a State law forbidding pre- cedence in the delivery of messages, and requiring delivery by messenger within one mile, was set aside as a regulation of commerce. The judges said that under the reserved powers of the State, designated under the somewhat ambiguous term "police pow- ers," the good order, peace and protection of the community may be regulated, but that it must be done without encroachment upon the power vested in Congress.^ ^ The power of Congress to exercise control under the commerce clause of the Federal Constitution over all the interstate railroads of the country, as, for example, in requiring the use of automatic car couplers, seems to be conceded. The further right of Congress to divest itself of its power to regulate commerce and to pass enabling acts permitting the exercise of that power by the States, has been sustained.^'^ The holding may be criticised on the ground that the Constitution having confided the regulation of commerce to Congress, 16 W. U. Tel. Co. V. Pendleton, n In re Rahrer, 140 U. S. 543. 122 U. S. 347. FEDERAL POWER OVER COMMERCE. 153 that body cannot defeat its own power in that regard and confer it upon the State. In the Eahrer case, the so-called Wilson law of Congress was sustained, which law authorized the States to exclude intoxi- cating liquors, although the subjects of interstate commerce. The question of the right of the States to fix raib road rates is conceded by the cases, subject to judi- cial review as to the reasonableness of the rates. This was held in the Minnesota case,^^ and the doc- trine is further developed in the Reagan case,^^ and in the Nebraska case-'^ referred to in another place. In the first case above named, a law of Minnesota establishing a commission to fix rates, but denying any judicial examination of the reasonableness of the rates, was set aside by the •Federal Supreme Court. We may observe that the Interstate Com- merce Commission established by Congress is not only without judicial power, but cannot establish rates, and its power should be enlarged. The general result of the decisions is that State police regulations may apply to the instrumentalities of interstate commerce, such as cars and vessels, the equipment of either, and the qualification of train- men and seamen, but that State police regulations cannot extend to direct regulation of interstate com- merce. For example: a steamboat engaged in inter- 18 Chi. etc. Ry. v. Minn., 134 154 U. S. 362. U. S. 418. 20 Smyth v. Ames, 169 U.S. 466. 19 Reagan v. F, L. & T. Co., 154 FEDERAL POWER OVER COMMERCE. state commerce may be required by a State to be provided with suitable screens to prevent emission of sparks.21 The power of the State to regulate the instrumentalities of interstate commerce, is so nearly allied to the State power to tax them, that it is hard- ly a digression to briefly consider the latter power. The corporate franchises, property, business and in- come of an interstate R. R. corporation may be taxed by the State; but this must be done in such a way as not to interfere with interstate commerce.^^ Accordingly, steamboats engaged in such commerce are taxable by the State.^^ Also, telegraph prop- erty.^^ Manifest difficulty exists in the constitutional taxation of rolling stock, employed in different States ; but the methods adopted by the States have generally been sustained, as not interfering with the power of Congress to regulate commerce.^^ But when States have taxed interstate freight, and tele- graphic dispatches the statutes have been set aside.-^ Yet in State Tax on Ry. Gross Receipts^'' a statute of Penn. was sustained by a course of reasoning apparently not followed in the later case of Fargo vs. Michigan,-^ setting aside a similar law of Michigan. 21 Burrows v. Delta Co., 106 141 U. S. 18; Marye v. B. & O. Mich. 582, 594. R. R., 127 U. S. 117; Pickard v. 22 Phil. S. S. Co. V. Penn. 122 Pullman Co., 117 U. S. 34. U. S. 326, 345. 26 Case of the State Freight 23 Transp. Co. v. Wheeling, 99 Tax, 15 Wall. 232; Tel. Co. v. U. S. 273. Texas, 105 U. S. 460, 24 Western etc. Co. v. Mass, 27 15 Wall. 284 125 U. S. 530. 2s 121 U. S. 230. 25 Pullman's Car Co. v. Penny, FEDERAL POWER OVER COMMERCE. 155 A tax upon gross receipts of a telegraph Co. is in- valid so far as these receipts are derived from inter- state commerce.-^ The business of transporting persons and property between the States is not tax- able by the State,^*^ nor the business of a R. R. agent soliciting interstate passenger traffic,^^ nor the keejj- ing of an office in a State by a corporation of another State engaged in interstate commerce.^^ But in an- other case there was a departure from this line of decision, when a tax on the receipts of a R. R. de- rived from interstate transportation was sustained because it was called a tax on a franchise.^^ Recurring to the. subject of the police power over transportation rates we observe that the Nebraska ease not only holds that there may be judicial review in the Federal courts of the reasonableness of the rates established by States, but that the existence of a remedy by statute in a State court will not prevent relief by injunction in a Federal court; and that a Federal court may enjoin the officers of a State from executing a State statute regarding rates, which is held unconstitutional; and that the pro- ceeding is not against a State, within the 11th Amendment to the Federal Constitution. This de- 29 Ratterman v. Tel. Co., 127 32 Norfolk R. R. v. Penn., 136 U. S. 411; Tel. Co. v. Alabama, U. S. 114; Leloup v. Port of Mo- 132 U. S. 472. bile, 127 U. S. 640; Crutcher v. 30 Gloucester Ferry Co. v. Ky., 141 U. S. 47. Penn., 114 U. S. 196. 33 Maine v. G. T. Ry., 142 U. 31 McCall V. Calif., 136 U. S. S. 217. 104. 156 FEDERAL POWER OVER COMMERCE. cision seems to have been made with reference to business wholly within the State, and is therefore not based upon the ground that a question of inter- state commerce was presented. Under this decision, the Federal court is made the depository of the power to determine the reasonableness of railroad rates. The doctrine is still in a state of imperfect development and it is readily seen that questions of extreme difficulty may be presented in the exer- cise of this power. Calculations of the value of railroad property, and of the traffic within the tribu- tary region, and of the expense of managing the property, and other questions which might be sug- gested, must enter into a decision as to whether the rates are confiscatory or not; that is to say, W'hether the particular rates prescribed prevent the company from deriving a fair interest from its investment in addition to expenses, including interest on its bonds. Some of these difficulties are hinted at in the Michigan Passenger Rate case.^^ The Federal Supreme Court rules that testimony should be taken before a Master, so that there may be a very full presentation of facts before the court for determin- ation on the question of reasonableness.^^ And the judiciary will not interfere with legislative rates unless they are palpably unreasonable.^^ It has been held that a steamer plying on the 34 Chicago etc. Ry. v. Well- kins, 176 U. S. 167. man, 143 U. S. 339. se San Diego etc. Ry. v. Nat. 35 Chicago etc. Ry. v. Tomp- City, 174 U. S. 139. FEDERAL POWER OVER COMMERCE. 157 Pacific ocean between two ports of the same State, is nevertheless under the power of Congress, because it must necessarily enter into relations with inter- state and foreign commerce upon that ocean.^'^ This is a development of the law, making an advance upon the case of Allen vs. Newberry,^^ where it was held that the power of Congress did not extend to a case of contract of affreightment between a port in a State and another port in the same State, al- though the vessel was a general ship and bound upon a voyage to a port in another State. Mr. Justice Bradley said^^ that although foreign corporations are subject to legitimate police regu- lations of the State, yet such foreign corporations as carry on interstate commerce are within the pro- tection of the commercial power of Congress and cannot be impeded in the carrying on of their busi- ness by State legislation. The judge tersely said that in matters of interstate and foreign commerce, there are no States. In that case Congress had authorized a New York corporation to build piers and bridge a river in the State of New Jersey. The latter State opposed, but its opposition was held nugatory. As said in Debs's Case,"*^ the United States govern- \/^ ment has jurisdiction over every foot of soil within its territory; and Chief Justice Taney said, "The 37 Lord V. Steamship Co., 102 33 Stockton v. B. & N. Y. R. U. S. 541. R., 32 Fed. 9. 38 21 How. 244. 40 158 u. S. 564. ]^53 FEDERAL POWER OVER COMMERCE. Constitution of the United States, and every clause and article in it, is a part of the law of every State in the Union, and is the paramount law."^^ At an early day, 1837, a law of New York re- quiring every vessel running from another State, to report prescribed details as to every passenger, was sustained as a justifiable police regulation.^^ This law of New York was quite clearly a regulation of commerce; but at that time the subject was al- most wholly undeveloped. Later, in the so-called License cases,^^ a State law forbidding the sale of liquors, brought from another State, without obtaining a license to sell was upheld as a legitimate exercise of the police power of the State. Opinions were delivered seriatim by the members of the court and they were extremely con- flicting. Not very long after, in the Passenger Cases,^* State laws requiring vessel masters to pay to the State health officer a sum of money for each pas- senger arriving from another State, was set aside as a regulation of commerce, and as not within the police power of the State. Manifestly, the State laws discussed in the License cases and in the Pas- senger cases were of the same character, viz., regu- lations of commerce; although in the earlier case the State law was overthrown and in the later case sustained. 41 Prigg V. Penn., 16 Pet. 628. « 5 How. 504. 42 N. Y, V. Miln, 11 Pet. 102. 44 7 How. 283. FEDERAL POWER OVER COMMERCE. 159 The next stage of development of this subject is found in Cooley vs. Wardens.^^ Certain State laws were sustained as local regulations and not com- merce regulations, and consequently as within the police power; and the distinction was said to be the character of the subject legislated upon by the State, as national or local. Evidently, this is the same line of distinction long before laid down by Chief Justice Marshall in the Black Bird Creek case. State laws of inspection of articles brought into, or sent out of, the State, are not in collision with the power of Congress to regulate commerce.^^ But the ultimate development of the true relation between the police power of the State and the com- mercial power of Congress came in the case of Leisy vs. Hardin,^'^ expressly overruling the License cases'** above referred to, which had been decided nearly fifty years earlier. In Leisy vs. Hardin, the court set aside a State statute, passed in the exercise of the police power, forbidding the sale in the original package of liquor imported from another State, and denied the power of the State to pass a law which is, in fact, a regulation of commerce, although pro- fessedly passed in the exercise of the police power. This case is the one which led to the enactment of the Wilson Law of Congress, so-called, above re- ferred to, and upheld by the court.^^ 45 Cooley V. Wardens, 12 How. 47 135 U. S. 100. 299, 1851. 48 5 How. 504. 46 Patapsco Guano Co. v. N. 49 Re Rahrer, 140 U. S. 543. C, 171 U. S. 345. 160 FEDERAL POWER OVER COMMERCE, In Leisy vs. Hardin, three of the justices of the Federal Supreme Court dissented, in an opinion drawn up by Mr. Justice Gray, in which it is de- clared that the power of regulating the manufacture and sale of liquors is wholly within the police power of the States, and has no relation to the movement of goods from one State to another in the processes of commerce. It was declared that the License cases had never been overruled and ought to be fol- lowed, and that the inherent police power of the States, reserved to them by the Constitution, is essen- tial to their existence as organized governments; and that while all statutes of a State must give way, if they are repugnant to the national Consti- tution, yet when those statutes relate to the pro- tection of the safety, health and morals of the people, they ought not to be subordinated to the promotion of trade and commerce. It thus appears that the final and present result of the development of the law in the decisions of the judges concerning the relation of the police power of the State to the commercial power of Con- gress is this: firstly, that the State may regulate commerce in the exercise of the police power where- ever the subject matter of the State statute is local in its nature and circumstances, and not national; and secondly, the State may regulate commerce where Congress may have enacted a law conferring upon the State the power of making such a regula- tion. Congress thus abdicating its own constitutional FEDERAL POWER OVER COMMERCE. 161 functions. Tliis result leaves great power in the judges to construe and apply the law according to the circumstances of the case; and in the latest case, that of Scott vs. Donald,^^ the statute of Con- gress authorizing States to enact regulations of com- merce, that is to say the Wilson law, was held not to justify the so-called Dispensary Liquor Law of South Carolina, which was enacted as a lawful exercise of the police power of the State, for the reason that the Dispensary Law discriminated between State and domestic commerce, and therefore was a regula- tion of commerce. The foregoing development of the law may be stated in a different way. In the License Cases, the majority held that the States could legislate on sub- jects of interstate commerce until Congress had acted upon them; but the present doctrine is that if the subject is national in its character, the absence of Congressional legislation on that subject is equiv- alent to a declaration of Congress that, on that sub- ject States, shall not legislate.^* In a recent case^^ decided in the year 1888, where the Court construed a liquor law of the State of Iowa upon error to the Supreme Court of that State, the judgment of the lower court was affirmed, and the power of the State to absolutely prohibit the manufacture and sale of liquor within its territory 50 165 U. S. 58. 51! Kidd v. Pearson, 128 U. S. 51 Bowman v, C. & N. W. R. 1. R., 125 U. S. 508. 162 FEDERAL POWER OVER COMMERCE. was sustained, as not against the 14th Amendment, although the statute provided that liquor should not be manufactured even for transportation beyond the limits of the State. It was said that this law did not undertake to regulate commerce. In a case^^ v^here the question was whether the act of Georgia of 1833 exempted the railroad corporation from legis- lative interference with its rates of charges, and it was held that the corporation was not so exempt. The Court said that the power of regulation for the security of passengers and freight, and for the con- venience of the public, and to prevent extortion by unreasonable charges, and favoritism by unjust dis- crimination, does not amount to a power of regu- lation of commerce, but is a proper exercise of the police power. In a case from South Carolina it was said that such railroad legislation is not any en- croachment upon the 14th Amendment. In that case, the State of South Carolina required the sal- aries and expense of the Railroad Commissioners to be borne by the several corporations operating railroads within the State; and this provision was sustained.'^* In a. case where interstate communication was un- der discussion, it was held that a telegraph company between States, occupying the streets of a city, could be subjected to proper regulations and supervision by the city, with a view to the protection of persons 53 Georgia R. R. v. Smith, 128 54 Charlotte R. R. v. Gibbes, U. S. 174. 142 U. S. 393. FEDERAL POWER OVER COMMERCE. 1G3 and property; and that the company, although en- gaged in interstate commerce, could be made to pay the expense of such regulation and supervision; but that where the amount charged by the city was greatly in excess of the necessary sum, the extra charge would amount to a tax pure and simple, and could not be sustained as a valid charge.^^ Such a company may be required to place its wires under- ground.^'^ W. U. Tel. Co. vs. New York, 38 Fed., 552. In the case of Sanders,^^ it was held that State legislation on a subject confided to Congress, cannot stand, although passed in the exercise of the police power; and that accordingly a law of North Carolina forbidding the sale of seeds in packages not marked in a certain way was void as applied to packages imported from another State. A general proposition drawn from the foregoing cases, and others which we have no space to con- sider is, that all State legislation operating directly upon interstate commerce, either by tax upon its business, license for its pursuit in particular chan- nels, or conditions for carrying it on, is void, for the reason that such legislation regulates commerce, the exclusive power to do which is in Congress; and this is so, although the legislation professedly oper- ates upon commerce solely within the State, if the legislation directly affects exterior commerce, and 55 Phila. V, W. U. Tel., 40 Fed. se w. U. Tel. v. N. Y., 38 Fed. 615. 552. 57 52 Fed. 802. 1G4 FEDERAL POWER OVER COMMERCE. although it is intended for the protection of the health and property of the citizens. State legisla- tion may affect interstate commerce in a variety of ways and yet be entirely valid, because the inter- ference produced by the legislation is not direct, or intended.^^ Something must be shortly said in regard to waterways. A State under the police power may bridge and dam streams, although interstate com- merce may be affected by such action indirectly; th(^ object of the law not being actually the regulation ot commerce.^^ And booms may be placed in riveru although interfering with navigation.^" A State ma}' improve a river and may charge for the use of the improvements, as was held in a case from Michigan.^^ As to ferry privileges between States, it was held at an early day that the police power authorized the grant of such privilege by a State ;^^ but, at the pres- ent time, this would hardly be held, under the reasoning in Gloucester Ferry Co. vs. Pennsyl- vania.*'^ When a river is used for interstate commerce, if the State permits the building of a bridge, the ques- tion of its interference with such commerce, is held to be a judicial one, and the action of the State is 58 Hopkins v. U. S., 171 U. S. 176 U. S. 167. 578, and cases cited by Mr. Jus- ei Sands v. Manistee Co. 133 tice Peckham, 544. U. S. 288. '^^0 Pound V. Turck, 95 U. S. 62 Fanning v. Gregoire, 16 459. How. 524. GO Lindsay etc. Co. v. Mullen, 63 114 u. S. 196. FEDERAL POWER OVER COMMERCE. 165 reviewable.^^ But Congress may legalize such a structure, under the Federal power over commerce.®^ The commerce passing over a bridge may be greater than that on the water obstructed, and until Con- gress takes action on the subject, the State may authorize the construction of a bridge.^^ The judges declare that the changed condition of the country, produced by the building of railroads, has caused the great inland rivers to be spanned by bridges, and that they are allowable because railroads are as much highways of commerce as rivers, and all per- sons navigating the latter are bound to avoid the piers of bridges and may not treat them as unlawful obstructions.^'^ Mr, Justice Grier said in the Pas- saic Bridge cases,^^ that Congress does not come in conflict with the police power of a State, exercised in bridging her own rivers, by establishing ports of entry above the bridge; nor is spending money by Congress, in improving river navigation, any as- sumption of the police power over the river.®^ Con- gress may authorize a private corporation to occupy navigable waters, and the soil under them, within a State, in order to construct a bridge, notwithstand- ing an act of the State forbidding and protesting^* 64 Wheeling Bridge Case, 13 e? The Mohler, 21 Wall. 235. How. 518. cs 3 Wall. 782, 793, appendix. 65 Wheeling Bridge Case, 13 "» Willamette Iron Bridge v. How. 421. Hatch, 125 U. S. 1. 66 Oilman v. Phila., 3 Wall. to Decker v. R. Co., 30 Fed. 713; Cardwell v. Bridge Co., 113 723; Penn. Ry. Co. v. B. & N. U. S. 205. Ry. Co., 37 Fed. 129. IQQ FEDERAL POWER OVER COMMERCE. We observe finally in this regard that the existing development of the law is that the commercial power of Congress is exclusive of State authority only when the subjects on which it is exerted are national in their character, because they require uniformity of regulation affecting alike all the States; and the erection of a bridge within a State over an interstate river is local in its nature; therefore the State may authorize it under its police power, in the absence of any congressional action taken under the Federal power over commerceJ^ This development comes from the Blackbird Cteek Marsh Case above. In Ry. Co. vs. Backus,'^^ the act of Congress of Sept. 19, 1890,'^^ was considered and upheld. It enacts that no bridge over any navigable water of the U. S. authorized by any State shall be constructed until the location and plan of the bridge have been sub- mitted to and approved by the Secretary of War. This enactment renders practically obsolete all prior cases on the subject, except as illustrations. There can be no doubt that a State may, by its legislature, or through a board of harbor commis- sioners, establish, for the protection and benefit of commerce and navigation, harbor lines in navigable waters, not inconsistent with any legislation of Con- gress, limiting the building of wharves and other structures upon lands not already built upon.^^ "Rhea v. Newport Co., 50 etc. Co., 176 U. S. 211, as to Fed. 16. obstruction in rivers. 72 46 Fed. 216. 74 Prosser v. U. P. R. R., 152 73 R. S., U. S. Supp. 801, sec- U. S. 64. tion 7; See U. S. v. Bellingliam CHAPTER IX. THE POLICE POWER CONCERNING PROPERTY IN BUSI- NESS. It remains to consider more particularly how v/ rights of property in business may be restricted un- der the police powers of the States, and how far the restrictions of the Federal Constitution have been applied by the Federal Supreme Court in the devel- opment of the subject. The student of the cases will find that, so far as v/ the right to maintain monopolies is concerned, the development of the law has been rather in favor of monopolies than against them. It is a postulate, as respects rights of property, that the right to pursue one's happiness, without restrictions established by the police power — such pursuit of happiness to be by carrying on some means of livelihood by labor of any kind — is a principle of American liberty. The right to choose one's call- ing is an essential part of liberty and a calling when chosen, is a man's property, says Mr. Jus- tice Bradley, diss., in the Slaughter House cases.^ Speaking on this subject, Mr. Justice Peckham quite recently said, in Allgeyer vs. Louisiana,^ that the right to follow one of the common occupations of life 116 Wall. 116. 2 165 U. S. 578. 167 1(38 CONCERNING PROPERTY IN BUSINESS. is an inalienable right; and that this statement is covered by the word "liberty" as contained in the Fourteenth Amendment; and that, in the privilege of pursuing an ordinary calling and of acquiring, hold- ing and selling property, is embraced the right to make all proper contracts in relation thereto. And so the court held that a law of Louisiana which forbade any person from doing any act within that State to effect insurance in any foreign insurance company which had not complied with the laws of the State and made him subject to a fine, was, when applied to a contract of insurance made in the State of New York, a violation of the Constitution of the United States. It is very evident that the acts which are com- monly called boycotting, and the like, upon the part of labor unions, are a deprivation of American lib- erty under the statements in the case above cited, and are tyrannical to the last degree. The police power is exercised for the protection of business through the process of injunction.^ Now, the protection of liberty as above defined, and rights of property as part of it, as against the usurping acts of State legislatures, is a very im- portant matter, and the law concerning monopolies, 8 Casey v. Cincinnati Union, Everett, 144 N. Y, 189; Coeur 12 L. R. A. 193, and note; Mur- d'Alene etc. Co. v. Miner's dock V. Wallier, 152 Penn. St, Union, 51 Fed. 260; In re Debs, 595; State v. Glidden, 55 Conn, petitioner, 158 U. S. 564; Ar- 46; Continental etc. Co. v. thur v. Oakes, 63 Fed. 310. Board, 67 Fed. 310; Reynolds v. CONCERNING PROPERTY IN BUSINESS. 1G9 as it existed in England at the time of Lord Coke, seems to have been more liberal in favor of the liberty of the citizen than at present in the United States. The so-called case of Monopolies,^ was where a pat- ent had been granted to one Darcey to buy beyond the seas all such playing cards as he wished, and sell them within the kingdom; and that he and his agents should have the whole traffic in such cards, and that no other person should have the making or dealing in playing cards within the realm. Suit being brought against a citizen in London for selling playing cards, he pleaded that, being a free citizen of the city, he had a right to do it; and the court held unanimously that the grant to the plaintiff of the right to the sole dealing in cards within the kingdom was void for two reasons: first, as a mo- nopoly against the common law, and, secondly, against acts of Parliament. Plainly a grant of such exclusive privileges is an invasion of the rights of others to choose a lawful calling and an infringement of personal liberty. In the case of Davenant and Hurdis,^ a company of merchant tailors in London made an ordinance that any member of the society who should have cloth dressed by a cloth worker, not a member, should put half his cloth to some member upon pain of a forfeit of 10 shillings; and the court held that although the ordinance was under the charter of the company, it * 11 Rep. 85. 5 11 Rep. 86. 170 CONCERNING PROPERTY IN BUSINESS. was against the common law, because against the lib- erty of the subject, for the reason that every subject, by law, has freedom and liberty to put his cloth to be dressed by what cloth-worker he likes. It is e\ident that the practice of union labor associations com- pelling employers to refrain from employing non- union persons is against the common law. Now, what has the Federal Supreme Court said in regard to the enactments of State legislatures grant- ing monopolies? Has the court protected the liberty of American citizens? Has the court actually en- forced the Fourteenth Amendment? The first case upon the subject arose about four years after the adoption of the Amendment, in the year 1872, and is cited as the Slaughter House cases.^ The Legislature of Louisiana, in 1869, created a corporation and granted to it the exclusive right for twenty-five years to maintain slaughter houses and cattle yards within a district containing about 1,200 square miles and a population of about 300,000 people, prohibiting all other persons from engaging in the business, and requiring all animals to be brought to the slaughter house of the corporation, and fixing certain fees; and the question was whether this was a proper exercise of the police power of the State for the health, comfort and welfare of the peo- ple of the State, or w^hether it infringed the Four- teenth Amendment. A minority of the court, consist- 6 16 Wall. 36. CONCERNING PROPERTY IN BUSINESS. 171 ing of the Chief Justice and Justices Field, Swayne and Bradley, declared the law to be void, as only professedly a police regulation for the promotion of the public health, but actually trespassing upon the liberty of the citizen, and creating an odious mo- nopoly, preventing the citizen from exercising one of the ordinary occupations of life, viz., the trade of a butcher, and unreasonable, arbitrary and unjust. These four judges declared that that portion of the law which allowed no one but the favored company to build, own or maintain, slaughter houses had not the faintest semblance of a police regulation, and was an arbitrary and unjust law, made in the inter- est of a few schemers to the oppression and impover- ishment of the individual. The four judges further said that a more flagrant and indefensible violation of the right of the many or the benefit of the few had never occurred in the legislative history of this coun- try. The counsel against the corporation claimed that the law was a reproduction of the greatest abuses which had existed in the different countries of Europe, w^here the prying eye of the government followed the butcher to the shambles and the baker to the oven; where the peasant could not cross the river without paying some nobleman a toll; nor take his produce to market without purchasing leave to do so; nor consume the remainder of his grain until he had sent it to his lord's mill to be ground; nor sharpen his tools on his own grindstone; nor make wine, oil or cider at his own press. The dis- 172 CONCERNING PROPERTY IN BUSINESS. senting judges declared that the Fourteenth Amend- ment struck at and forever destroyed such laws as that of Louisiana. But the Court, by a majority of one, justified the law as an exercise of the police power of the State. They said that the contrary conclusion would lead to enactments interfering with the internal affairs of the State, and would bring within the power of Congress the entire domain of civil rights admitted to belong exclusively to the States prior to the adop- tion of the Fourteenth Amendment; and would trans- fer from the State to the Federal government the security and protection of all civil rights, and abolish the State governments in everything but name, and lead the Federal courts to draw to their cognizance the supervision of the State tribunals upon every subject of judicial inquiry. So the monopoly stood. If we compare Gulf Ky. Co. vs. Ellis,^ as to classi- fication and equal protection by States, and Holden vs. Hardy ,^ we may doubt whether the reasoning of the majority in the Slaughter House cases will here- after be followed as to police regulations. In Michi- gan a municipality contracted with an individual for a public market and that there should be no other market within the limits for ten years, and the con- tract was held invalid as divesting the municipality of a part of its legislative a*uthority and creating a 7 165 U. S. 150. « 169 U. S. 366. 382. CONCERNING PROPERTY IN BUSINESS. 173 monopoly.^ Mr. Justice Cooley cited the Darcj case above. The Slaughter House cases lay down that only State action against negroes will be held to come under the equal protection clause of the Fourteenth Amendment. But in Holden vs. Hardy it is said that a majority of the cases have turned upon en- tirely different discriminations. So it is said also in Maxwell v. Dow.^^ Of late years the rapid rise of what are known as "Trusts," or industrial combinations, covering almost every commodity and business, has led to legislation in about half the States, called "anti-trust laws." Such combinations have been formed concerning light, heat and power, chemicals, metals, shipping, railroads, building firms, school materials, apparel, furniture, food, and many other things. The Illinois anti-trust law of 1891 and the Texas law of 1889 are examples of such legislation. The Illinois law is en- titled, "An act to provide for the punishment of persons, copartnerships, or corporations, forming pools, trusts and combines, etc." Much English legislation in the same direction was abol- ished by Parliament in 1844. Such legislation is within the scope of the police power, and is appli- cable to corporations.^^ Such legislation has not, 9 Gale V. Kalamazoo, 23 Mich. Sugar Co., 121 N. Y. 562; People 344. V. Chicago Gas Trust Co., 130 10 176 U. S. 581. 111. 268; People v. Standard Oil 13 Gibbs V. Bait. Gas Co., 130 Co., 49 Ohio St. 137. U. S. 396; People v. North etc. 174 CONCERNING PROPERTY IN BUSINESS. however, proved effectual. In the eternal struggle be- tween the avarice, combination, and enterprise of individuals, on the one hand, and the State on the other, the latter is seldom victorious. It is here to be remarked that trust agreements, affecting business within a State, but which, also, directly and substantially regulate commerce among the States, may be prohibited by Congress, and to this extent the liberty of the citizen of a State to do business is limited and qualified.^^' An example of a business agreement which was held not to be sub- ject to prohibition, as affecting interstate commerce, is found in the Kansas City Live-Stock Exchange cases.^^ In Barbier vs. Connolly,^^ a law which forbade work in laundries during nights and Sundays in San Francisco was sustained. The question was whether this was an arbitrary spoliation of property and an infringement of liberty. The court held that the ordinance contemplated order and good health and was a proper exercise of the police power. The Supreme Court of Michigan^ ^ sustained a law for- bidding barbers to work on Sunday, upon the ground that the health of the people required that they should not work one-seventh of the time, without regard to any religious observances. And we have 14 Addyston Pipe & Steel Co. n 113 U. S. 31. V. U. S., 175 U. S. 211. 12 People v. Bellet, 99 Mich. 15 Hopkins v. U. S., 171 U. S. 151. 578; Anderson v. U. S., 171 U. S. 604. CONCERNING PROPERTY IN BUSINESS. 175 seen above a State may forbid freight trains on Sun- days, even on interstate railroads. The Federal Supreme Court declares that the State may, even by retroactive legislation, destroy the use of property without compensation. The constitution of Kansas, in 1880, forbade the manufacture and sale of liquor. A citizen named Mugler, befare that time, had established a brewery, at a large expense, and was indicted after the constitution was adopted and under a statute which carried out the constitution. Mugler defended under the Fourteenth Amendment. The Supreme Court of the State and the Supreme Court of the United States both said that the police power was lawfully exercised and could be enforced against persons who, at the time, happened to own property, the chief value of which consisted in fit- ness for the manufacture and sale of liquor; and that the State was not required to make compensation to the individual whose property was destroyed. This was said not to be taking property for public use.^^ A case going further still came up from Pennsyl- vania, where a law of that State forbade the manu- facture and sale of oleomargarine, although sold as oleomargarine and not as butter, and not in any way passed off as butter. The court said^^ that if the Legislature should invade rights of liberty or prop- erty under the pretence of guarding the public 16 Mugler V. Kansas, 123 U. S. i" Powell v. Pennsylvania, 127 623, 1887. U. S. 670. 176 CONCERNING PROPERTY IN BUSINESS. health, the court would give effect to the Fourteenth Amendment ; but said that when such pretence does not clearly appear on the face of the statute, or from facts judicially known, the action of the Legislature is conclusive. This law in question, it is submitted, was not only an invasion of property right, but class legislation. Later, a statute of Massachusetts to pre- vent deception in the manufacture and sale of imi- tation butter was sustained,^ ^ as applying to an arti- cle, made in Illinois, and sent by the manufacturers to Massachusetts, and there sold in the original pack- age, not as butter, but, distinctly, as something which was not butter. The Chief Justice and Jus- tices Field and Brewer dissented. They said that the statute ought not to stand, because it was not limited to substances intentionally made to deceive by imitating butter and sold for a fraudulent pur- pose. It is a remarkable fact that the Court of Appeals of New York has held views entirely opposite to those of the Supreme Court of the United States in the above cases of Mugler, Powell and Plumley. In Wynehamer's case,^^ the court said that a law to suppress intemperance, which destroyed property lawfully established before the adoption of the law, could not stand. So, where a law, professedly to improve the public health, forbade the manufacture 18 Plumley v. Mass., 155 U, S. !» Wynehamer v. People, 13 N. 461. Y. 378. CONCERNING PROPERTY IN BUSINESS. 177 of cigars in tenement houses, it was held to be an arbitrary interference with personal liberty and pri- vate property.^^ The Michigan court discussed that case in sustaining a statute requiring emery wheels to be provided with blowers to carry away the dust.-^ In another ]S^. Y. case^- an act to prevent deception in dairy products, which, however, actually forbade the manufacture and sale of any substitute whatever for butter, however plainly and fairly held out by the seller not to be butter, was set aside as transgressing both the New York and Federal constitutions. The court said that it was the fundamental right of every citizen to follow a lawful industrial pursuit, not in- jurious to the community, in order to earn a liveli- hood. In a still later New York case, where the Federal case of Powell was cited, and brought to the attention of the court, and in which Mr. Justice Peckham, now a member of the Federal Supreme Court, delivered the opinion,^^ a law of New York was held not to be a valid exercise of the police power which enacted that no article of food should be sold together with a premium free to the pur- chaser. Gillson had sold two pounds of coffee and given away a teacup and saucer with the coffee, and was indicted, but discharged. The New York court,^* Mr. Justice Peckham dissenting, and Mr. Justice 20 Matter of Jacobs, 98 N. Y. 23 People v. Gillson, 109 N. Y. 98. 389. 21 People V. Smith, 108 Mich. 24 People v. Walsh, H N. Y. 531. S. R. 554. /y 7 ^ if / 22 Marx's Case, 79 N. Y. 377. ' ^ - '. • 178 CONCERNING PROPERTY IN BUSINESS. John C. Gray also dissenting, followed the decisions of the Federal Supreme Court with regard to the legislation of the State fixing prices where the prop- erty was affected with a public interest,^^ and con- cerning State regulation of grain elevators and ware- houses maintained by private individuals having no franchise. But in the latest case on the subject,^^ the Federal Supreme Court practically overrules the Powell case and the Plumley case above, as is shown by the judges dissenting in the case. Mr. Justice Peckham delivered the majority opinion. A law of the State of New Hampshire prohibiting; the sale of oleomargarine unless colored pink, wan held void as to the article brought into New Hamp shire from Illinois.^^ In Michigan-^ it was doubted whether the use and manufacture of oleomargarine could be prohibited » but such prohibition has been sustained by many courts, generally as health regulations.^^ Th(y Federal government may regulate the sal(» of oleomargarine for purposes of Federal tax- ation without infringing on the police power of 25 2 Munn v. 111.. 94 U. S. 113; 28 n. W. Mfg. Co. v. Judge, Brass v, N. Dakota, 150 U. S. 58 Mich. 381. 391; Budd v. N. Y., 143 U. S. 29 Palmer v. State, 39 Ohio 517. St. 236; Waterbury v. Newton, 26 Schollenburg v. Penn., 171 50 N. J. L. 534; State v. Ad- U. S. 1, reversing the same case dington, 77 Mo. 110; Butler v. under the name of Com. v. Chambers, 36 Minn. 69; McAl- Paul, 170 Pa. St. 284. lister v. State, 72 Md. 396. 27 Collins V. N. H., 171 U. S. 30. CONCERNING PROPERTY IN BUSINESS. 179 the State.^" The use of patented articles has been held by the Federal Supreme Court to be subject to the police power of the States. Accordingly, where a law of Kentucky forbade the use of certain oil, it was held that the patentees of such oil was subject to the control of the State law.^^ Patterson vs. Ken- tucky, 97 U. S., 501. The use of the telephone has been held subject to the police power, and laws regu- lating prices have been upheld.^^ The legislature of no State (except New York, in 1778) as yet has fixed the charges of innkeepers, or of lawyers; but, clearly, under the decisions, this may be done; and the State Legislature may establish a tariff both for bonifaces and the bar. Indeed, the conclusion seems to be that the protection we now have with regard to the right of property in business in this country is to be found in the constitutional limitations upon the power of the State Legislatures, as applied by judicial decis- ions to the encroachments of new enactments. The latest monopoly which has been sustained is that of the Sugar Trust,^^ where the court held that the law of Congress commonly called the Sherman Anti-Trust Act, and entitled "An Act to protect trade and commerce against unlawful restraints and monopolies," does not forbid a combination formed between manufacturing companies for buying up 30 U. S. V. Dougherty, 101 Fed. 32 Central Union Telephone 439. Case, 118 Ind, 194. 31 Patterson v. Ky., 97 U. S. 33 u. S. v. E. C. Knight Co., 501. 156 U. S. 1. ;IgO CONCERNING PROPERTY IN BUSINESS. shares of all competing companies, in order, by con- trolling the output of the commodity which these corporations manufacture, to control the market as to that commodity throughout the Union. The court said that the matter of manufacture was subject only to the police power of the State. The dissenting opinion of Mr. Justice Harlan de- clared that the Trust was a conspiracy against in- iterstate commerce throughout the Union, and that the control of local manufacturing was simply a means to an end. Under this decision a New Jersey corporation was able to lay hold of every market of the United States with respect to sugar, and we be- 'hold in this monopoly a general restraint of trade which is apparently above the power of the govern- ment. In perhaps nine-tenths of the very numerous cases which have gone from the State courts, or from in- ferior Federal courts, to the Federal Supreme Court, touching the limitations of the Fourteenth Amend- ment upon the police power of the States, the high- est court, while very pointedly asserting its jurisdic- tion to review, has failed to actually recognize and enforce the rights of the appellants to the protection of that amendment. In a recent case^^ it was de- clared that a highway might be opened by the State across the right of way of a railroad and the whole expense be thrown upon the railroad. The dissent- 34 C. B. & Q. R. R. V. Chicago, 166 U. S. 226. CONCERNING PROPERTY IN BUSINESS 181 ing judge cited several Michigan decisions to the contrary. In another case^^ a law of Connecticut, imposing upon a railroad corporation the entire ex- pense of a change of grade at a highway crossing, was sustained as an exercise of the police power of the State which did not infringe the Fourteenth Amendment. In the Income Tax case,^^ eminent counsel said in argument that if the tax twas not sustained the people would do away with the court. Possibly such language may have some effect. A recent case^'^ well illustrates the difficulties at- tending the regulation of business by the State. The Legislature of the State of New York at its last ses- sion passed the so-called anti-scalpers' law, which made it a criminal act for any person to sell railroad tickets in the State unless such person was an au- thorized agent of the railroad companies. George Tyroler, a ticket broker of New York, was arrested and convicted on the charge of having sold a ticket for transportation from that city to Norfolk, Va., not being an authorized agent of a railroad company. A writ of mandamus was sought to compel the warden of the New York prison to release him from custody. The Appellate Division of the Supreme Court of the First Department passed upon the constitutional question raised, and unanimously decided that the 35 N. Y. & N. E. R. R. V. 36 157 U. S. 429; S. C, 158 U. Bristol, 151 U. S. 556. See Chi- S. 601. cago etc. R. R. v. Nebraska, 37 Tyroler's Case, 48 N. Y. S. 170 U. S. 57, 74. 1093. 182 CONCERNING PROPERTY IN BUSINESS. law was constitutional, holding that the State, hav- ing, as a sovereign power, the right to grant fran- chises, should also have the power to protect those holding franchises, and refused to grant the writ. An appeal was taken to the Court of Appeals, which rendered a decision that the law was unconstitu- tional, and ordered Tyroler's release; Justices Bart- lett, Martin and Gray dissenting. Mr. Justice Park- er, for the majority, said: "This is a remarkable statute. The buying and selling of passage tickets is not abolished; it is only condemned where the seller has not authority from some one of the transportation companies to act as its agent. It is asserted that the traveling public and transportation companies have been defrauded by the brokers. It is novel legislation, indeed, that attempts to take away from all the people the right to conduct a given business, because there are wrong- doers in it. The sale of fraudulent tickets is a pun- ishable offense under the penal code. This act, there- fore, must relate to valid tickets. The Legislature has not the power to interdict the sale of a valid ticket by one person to another upon the pretext that fraud will thus be prevented. Because some coal dealers and venders in sugar cheat in weight, and dealers in paints and oils in measurements, it has not been thought proper to make it a felony for persons to engage in such business, unless they have been ap- pointed as agents by the corporations manufacturing such products." CONCERNING PROPERTY IN BUSINESS. 183 Judge Martin, in his dissenting opinion, says: "The present statute cannot be held unconstitutional with- out practically determining that the affairs of this State have been controlled by statutes which were invalid, as being in excess of the powers of the Legis- lature to enact. To hold that this act is unconstitu- tional would practically annihilate the police power of the Legislature." Shortly before the above case the N. Y. Court of Appeals^^ set aside a law punishing the having in possession for sale articles of prison manufacture, not so labeled. The court stood four to three in deciding the law unconstitutional. Judge O'Brien wrote the prevail- ing opinion, which was concurred in by Judges Gray, Martin and Vann. In his opinion Judge O'Brien says: "Hawkins is forbidden by this statute from buying or selling or having in his possession any prison- made article, except upon the condition that he shall attach to it a badge of inferiority, which diminishes the value and impairs its selling qualites. It is not claimed that there is any difference in the quality of his scrubbing brush when compared with one of the same grade or character made outside of the prisons. The citizen cannot be deprived of his prop- erty without due process of law. The principle em- bodied in this constitutional guarantee is not limited 38 People V. Hawkins, 157 N. Y. 1. 184 CONCERNING PROPERTY IN BUSINESS. to the physical taking of property. Any law which annihilates its value, restricts its use, or takes away any of its essential attributes comes within the pur- view of this limitation upon legislative power. A law which interferes with property by depriving the owner of the profitable and free use of it, or hampers him in the application of it for the purpose of trade and commerce, or imposes conditions upon the right to hold or sell it, may seriously impair its value, against which the constitution is a protection. It is entirely safe to assert that no court has yet in- voked the police power to justify a statute the pur- pose of which was to enhance the wages of labor in certain factories by suppressing, through the agencies of the criminal law, the sale of competing products made in prisons. If the wages of labor in a few fac- tories, producing goods such as are also made in prisons, may be regulated by the police power, there is no reason why that power may not be used to regu- late the rewards of labor in any other field of human exertion. If the police power extends to the protec- tion of certain workmen in their wages against the competition of other workmen in penal institutions, why not extend it to other forms of competition? Why not give the workman who has a large family to support some advantage over the one who has no family at all? Why not give to the old and feeble a helping hand by legislation against the competition of the young and the strong? Why confine such leg- islation to scrubbing brushes and other articles made CONCERNING PROPERTY IN BUSINESS. 185 in prisons, when multitudes of men engaged in farm- ing, mercantile pursuits and almost every vocation in life, are struggling against competition? "It would be manifestly unjust and inconsistent for the State, while it encourages and commands the employment of convicts, and becomes itself the pat- ron and customer of prison-made goods to prohibit its citizens from dealing in the same property. This State has declared its policy to utilize convict labor in the production of such articles as the government itself, or that of any political division or the man- agement of any public institution, may need. The convict labor necessary to supply such a large con- sumption must necessarily in some degree at leasit affect the wages of free labor, if the argument in sup- port of this law be correct; but the general good over- balances any evil, real or imaginary, that may pro- ceed from that policy. "Some other State may not see fit to take all the profits of convict labor itself, but to sell the products in the market, and when the articles thus produced have been absorbed into the general mass of mer- chandise, they cannot be made the object of hostile legislation to depress their value any more than if they had been made in private manufacturing estab- lishments. "This statute belongs to a class of laws which have become quite common in recent years, all resting largely upon the notion that important problems in- volved in the social and industrial life of the people 186 CONCERNING PROPERTY IN BUSINESS. may be solved by legislation. This theory has, no doubt, a certain fascination over some minds, but so long as legislative power is circumscribed by the restrictions of a written constitution, a statute like this cannot be sustained by the courts. Whether tested by the Federal or State Constitution, it is, I think, an invalid law." We may now lay down certain general conclusions as the existing result of development by the decisions at the present stage. 1. The possession and enjoyment of all rights are subject to such reasonable conditions as may be deemed by a legislature of a State essential to the safety, health, peace, good order, morals and conven- ience of the people of the State. 2. The courts are empowered to adjudge whether any particular law is an invasion of the rights se- cured by the constitution, but will strain a point to sustain the particular law. 3. The Fourteenth Amendment, while it author- izes the Federal courts to declare invalid State laws, abridging the rights of citizens or denying due pro- cess of law, was not intended to interfere with the power of the State to protect the lives, liberty and property of the citizens of the States, and to promote education, good order, health, peace and morals. 4. The Fourteenth Amendment does not take from the State the police powers which were re- CONCERNING PROPERTY IN BUSINESS. 187 served at the time of the adoption of the original constitution and the Tenth Amendment. 5. When property, either of a corporation or of an individual, or its employment, is affected with a public use, the business in which it is used is subject to the control of the Legislature of the State in all respects which, in the judgment of the Legislature, are necessary to protect the public against danger, injustice and oppression, and the Legislature may fix a charge for the use of the property, subject to judicial review, as to reasonableness. 6. The use of property is distinguished from prop- erty itself, and this use is held to be subject to the police power of the State; and such use may be taken away for the public good, without compensating the owner; as in the case of Mugler and his brew^ery. 7. When property is affected with a public inter- est, charges for its use may be regulated by the State, under the police power; as in the case of Munn and his elevator, and in the case of the Georgia company and its railroad, subject to judicial revision as to th^^ reasonableness of the charges fixed by the State; as in the Minnesota, Nebraska and San Francisco cases and the Reagan case; and the Federal Supreme Court will lean towards, not discovering or enforcing, any charter contract to the contrary. The public cannot be subjected to unreasonable rates in order that stockholders may earn dividends; Covington, etc., Co. vs. Sandford.^ 1 164 U. S. 579. 188 CONCERNING PROPERTY IN BUSINESS. 8. The original police power of the State over the subject of charges for transportation has never been the subject of difference of opinion in the United States Supreme Court. The question differed about has been whether, by stipulation in a charter, amounting to a contract, that power has been actu- ally surrendered. Georgia R. R. case above. 9. There can be no contract and no irrepealable legislation upon certain governmental subjects. All legislative acts concerning public interests are pub- lic laws. Every succeeding Legislature possesses the same jurisdiction and power as its predecessors with respect to repeal and modification; and it is vital to the public welfare that each Legislature should be competent at all times to do whatever varying cir- cumstances and pressing exigencies may require. 10. A State regulation of railroad fares, if applied to interstate transportation, amounts to a regulation of commerce and is void, even as to that part of the transportation which is within the State. Wabash vs. Illinois.^ 11. Whatever is contrary to public policy or in- imical to the public interests, is subject to the police power of the State and is within legislative control. And, in the exercise of such power, the Legislature is vested with a large discretion, which, if exercised bona fide for the protection of the public, is beyond the reach of judicial inquiry. Louisville R. R. case,^ 2 118 111. 557. 3 161 U. S. 677. I CONCERNING PROPERTY IN BUSINESS. 189 Great Northern case.^ Both opinions by Mr. Justice Brown. Finally, we remark that ninety per cent of the leg- islation of the States during the past year was in the exercise of the police power, and was in the general direction of the theories of the populist against the property-holder; and we repeat that reliance must be had upon the wisdom and discretion of the courts, supported by the bar, in firmly enforcing the consti- tutional limitations upon the police power of the State. The application of fundamental pricinples to new enactments by judical decisions is rapidly developing a great body of law relative to the police power. New aspects of the subjects are constantly presented, and this book might be greatly expanded. But general principles have been, perhaps, sufficiently presented, with an adequate number of instances and de- cisions, selected from the great mass, in order to illustrate the development of case law. * 161 u. S. 646. INDEX. ALFRED, KING; period of. 5. His punishment of judges, 6. AUSTIN, PROFESSOR; holds judiciary law better made than statutory, 16. BACON, LORD; On codification, 11. BARBER-SHOP; Closing on Sunday, 78, 174. BLACKSTONE— Distrust of legislation, 14. On the police power, 23. BENTHAM— His hostility to judiciary law, 17. Hostility to Blackstone and Kent, 18. BEER COMPANIES, 85, 90, 99, 124, 148. BRIDGES; State may build, although indirectly affecting inter- state commerce, 164, 165, 166. Railroad Companies may build in navigable waters, 165. Action of State permitting, on navigable waters, reviewable by courts, 164. Congress may authorize against protest of State, 165. Authorized by state over United States waters must now be approved by Secretary of War, 166. BOYCOTTING, 168. Injunctions against, 168. , BURROWS; Reporter of Mansfield's decisions, 3. On authority of judiciary law, 3. BUSINESS; regulation of by state, 92, 93, 167. Difficulties of such regulation, 171, 173, 181. CIVILIZATION— Law a great part of, 1. CLASSIFICATION; Of subjects legislated on must be reasonable and not arbitrary, 73, 80, 82, 83. A wide latitude as to, allowed to the states by the federal supreme court, 73. Legal procedure may be different in different parts of state, 52. COCKBURN, SIR A. J. E.— On development of judiciary law, 14. 191 192 INDEX. CODIFICATION; English method of, is by digesting statutes re- lating to one subject, 12, 13, 14. Contrary to the racial disposition of the English nation, 12. Bacon's plan of 1592, 11. Time of Cromwell, 11. Commissions of 1828 and 1844, 12. Report of body of judges against, in 1844, 18, 19. Bentham in favor of, 18. COLERIDGE, SIR J. T.; Adopted principles from Roman law, 2.- COMMERCE; Congress may consent to regulation of interstate commerce by state, 152, 153, 160. Federal power over, limits police power, 149. Exclusively within state, 148, 149. Rates, a part of interstate carriage, cannot be fixed by state, 148. State may regulate the instrumentalities of, 153, 154, 160. This power allied to state power to tax such instrumentalities, 154 — Examples of 154. State legislation affecting only indirectly is valid, 164. Between ports of same state may be under federal control, 157. Interstate conducted by foreign corporation, 143, 157. Development of relation between police power and the fed- eral commerce power, 158, 159, 160, 161. Actual regulations of, although professedly police laws, are void, 149. Omission of Congress to act on a national subject equivalent to a declaration by Congress that states shall not legislate upon it, 161. CONSTITUTIONS, WRITTEN; an American invention, 19. CONTRACTS; Parliament can absolve from, 20, 21. States prevented by federal constitution from exercising that power, 21. Limitations on police power respecting freedom of, 53 to 71. Between employer and employee, 54 to 64. Laborer may contract for labor as freely as employer may contract for iron or coal, 64. For payment in gold, sustained, 68. Statutes regulating workingmen's contracts, 55, 59. Insurance contracts, 69. Evolution of the law concerning freedom of, 69. As to prices and wages, 67, 70, 116. Examples of impairment of obligation of, 128 to 133. Of municipalities with street railway, 140. INDEX. 193 CONTRACTS— Continued. Trend of decisions against restraint of exercise of right of contract, 53, 54, 66, 71. Licenses are not, 92. Corporate charters so held, 104. Of exemption from taxation, 105, 121, 122, 131. Private, within state, if directly affecting interstate commerce, are subject to federal control, 174. Meaning of term, 122. By state, regarding health and morals, may he modified or abrogated, 98, 124, 125. Can be no legislative contract as to certain governmental in- terests, 135. R. R. Co. may contract for certain exemptions from lia- bility, 53. CORPORATIONS; Increase in number of, 137. State control same as over natural persons, 101. Created under articles of association, 101, 102. How construed; boards of control of, 102, 103. Charter falls within meaning of term, "contract," 104. Police power over transportation, rates of, 106. Courts may pass upon reasonableness of, 109, 110, 113, 155, 156. Recent aflBrmances of that doctrine, 109, 153, 155, 156. Water and warehouse monopolies controlled as to charges, 112, 113. Control of grain, cotton, tobacco and telephones, 114, 115. Charter treated as a legislative act, 120. Implications in charter of, 127, 128. Strict construction of charters, 102, 103, 135. Many instances of application of "charter contract" doctrine, 128 to 133. Power of legislature to make contracts, 134. Liberality of construction of reservation clauses, 135, 136. May be authorized to take franchises and property of another corporation, on payment, 136, 139. Representation of minority stockholders on board, 137, 138. Corporate business, affected with a public interest, subjected to legislative control, 106, 111, 178. Franchises of, not inviolable at common law, 141. Control of by state must be in good faith, 142. State may inspect internal affairs of, 103, 104, 142. State may prescribe conditions against foreign corporations which are not engaged in interstate commerce, 143. Public duties of transportation companies may be enforced by mandamus, 144. 194 ' INDEX. CORPORATIONS— Continued. Foreign, conducting interstate commerce, although subject to state regulation, are under federal control, 157. COTTON; State control of transportation of, 114. CRIME; Punishment of by hard labor, 51. Punishment of by electricity, 39. Creation of new crimes, 46. CROMWELL; On codification, 11. CROWN; Power of, devolved upon the people of the states, 20. DEVELOPMENT OP LAW, 7 to 14. By judicial decision, 7, 8, 9, 13, By juristic writings, 8. By professional opinion, 8, 9. By legislative enactment, 10. By newly devised proceedings, 38. Progress from 1300 to 1875, 35. Lord Esher on, 3. Ch. J. Cockburn on, 14. DUE PROCESS; Created by the law of the state, 37. Legislature may change, provided fundamental principles are followed, 37. Does not necessitate a jury in a variety of cases, 37, 38. In cases of taxation, what is, 42. Certain statutes denying, 66, 67, 68. Principles of, not limited to physical taking of property, 184. Conditions upon use of property may be held to deny, 184. EAST INDIA COMPANY, 141. EDUCATION— A matter wholly belonging to the state, 79. Boards of, may classify as to, 79. EGYPT; Community of land in, 31. ELEVATORS; Charges may be controlled by state. 111, 178. Although private property, and not corporate. 111, 178. EMPLOYER, EMPLOYEE; Contracts between, 53 to 56. Employer cannot be prevented by statute frbm keeping supply stores for employees, 78. Laws restricting employment in public works to citizens, sus- tained, 79, 80. Statutes repealing co-servant rule sustained, 81, 82. Suits to recover wages, 83, 84. EQUAL PROTECTION; Discussion of, 71 to 85. Not denied when statute operating alike on all persons and property similarly situated, 80, 81. INDEX. 195 EQUITY— A part of the common law, 46. Evolution of equity practice, 45. Process of injunction to administer police power, 43, 44, 168. ESHER, LORD; On nature of English law, 3. FEDERAL COURTS; Authorized to set aside state laws and de- cisions abridging individual rights or denying due process, 21, 22. Supreme, as to public policy concerning freedom of contract, 53. Conflict between New York courts and, 53 n. 7, 177. Conflict between Colorado courts and, 65. Conflict between Indiana courts and, 140 n. 6. The depository of the power to determine reasonableness of R. R. rates, 155, 156. FEDERAL GOVERNMENT; Foundation of implied powers of, 20. FERRIES; Whether state may authorize between states, 164. State may not tax business of interstate, 155. FOOD; Sale of regulated, 93. May be sold with a free premium, 177, 178. FRANCHISES; At common law not held as private property, but as political privileges, 142. Right to collect rates is property, 126. In America, are property, and taxable, 139, 146. Not higher in class, or more sacred, than other property, 146. Not limited in duration to life of corporation holding, 140, 141. FREEDOM OF CONTRACT— Limitations on the police power respecting, 53, 71. GAS COMPANIES— Charter contracts with upheld, 132. GAS TRUSTS, 173. GENERAL CONCLUSIONS; Existing result of development at the present stage, 186-189. GRAIN ELEVATORS; Charges of regulated by state, 111, 113. HALE, LORD; On codification, 11. HARBORS; River and Harbor Act of Congress of 1890, 166. State may establish harbor lines not inconsistent with federal legislation, 166. HEALTH, THE PUBLIC, 85-101. Eight-hour law sustainable as a regulation of, 64. a96 INDEX. HEALTH— Continued. Michigan Sunday law against barber-shops sustained as a health regulation, 78. Similar statute of Illinois held to deny equal protection, 78. Similar statute of Minnesota sustained by Fed. S. C, 78. Regulations as to are especially within the police power, 85. Private property cannot be taken for the purposes of, without compensation, 86. Infectious animals or articles may be excluded, except when this rule impinges on the federal power to regulate com- merce, 86. Internal, state regulations of, beyond control of Congress, 87. Market houses, and power of city council over them, 87, 88. Plenary power of city as to, 92, 94. Instances of regulations, 89, 91, 92. Boards of health may be held liable for infringing private rights, 89. 90. Legislative discretion as to, must be reasonable, 91. Judicial tribunals may apply this test, 91. Regulations as to unwholesome food, 93. Cannot colorably affect rights and callings, 94. Explosive substances, insecure buildings, etc., 95, 99. No legislature can bargain away power over liquor trade, 100. Dam obstructing interstate commerce, but built with the ob- ject of protecting public health, lawful, 150. IMPAIRMENT OF CONTRACTS— By state laws, examples of, 128-132. INHERITANCE TAXES; Progressive, are sustainable, 74. INJUNCTION— Writ of employed to protect business against strikes, 43, 44, 168. INSPECTION LAWS; Sustained, as to imports into state, 159. INSURANCE COMPANIES; Classification as to, 74. Business of, not commerce, 143. JESSEL, SIR GEORGE; On development of equity procedure, 45. On public policy as to liberty of contract, 53. JUDGES; Function of, 1-4. Duty of, 3. Legislation by, 5-14. Legislation by, advantages of, 14. Adapt law to varying conditions of society, 14. Sir A. J. E. Cockburn on, 14. JURY; Derived from Roman law, 5. Civil trials may be without, 38. INDEX. 197 JURY— Continued. Grand, indispensable in federal courts, but not in state, 38, 39. Number of may be changed by state legislation, 39. Also number necessary to a verdict, 39. KENT, CHANCELLOR— Criticised by Bentham, 18. Devotes little attention to the police power, 24. LABOR LEGISLATION, 30, 31, 53-59. Eight hour laws, 59, 65, 68. Test of such legislation, 63. Store-order acts, 55, 64. Legislative tutelage of laborer not upheld, 64, 65. Organizations to prevent competition, 67. Regulation of workingmen's contracts, 68. Injunctions against strikes, 43, 44, 168. Labor legislation ineffective, 183-186. LAND; Nationalization of, 31, 32. LAW OF ENGLAND; Not a science, 3. Principles of reason and principles of custom, 5. Modern, began with Elizabeth, 6. Modern, characteristics of, 6. When first in print, 6, 7. Evolution of equity practice, 45. Newly-devised legal proceedings, 38. Concerning prices and wages, 70. English statutes as to industrial combinations repealed in 1844, 173. Concerning corporate franchises and the English universities, 141. LAW OF THE LAND; This phrase means the law of the state, 37. LAW REFORM, 19. LAUNDRIES; Regulated for the public health, 81, 92, 174. LEGISLATURES; Modern distrust of, 14, 15. Have power to change entire body of law of state, 150. Punishing employment of unnaturalized persons, 79, 80. Punishing railroads for stock killing, 74, 75. Ineffective to solve social and industrial problems, 185, 186. Ninety per cent of legislation at present is under the police power, 189. Cannot dispossess themselves of the right to exercise the po- lice power (see title "Statutes"), 58, 88, 135. LIBEL SUITS; Damages in, cannot be fixed by statute, 78, 79. LIBERTY; Rights Included in the term, 66, 167, 168. 198 INDEX. LIBERTY— Continued. Right to choose a calling, part of, 168, 177. LICENSES; Cannot be excessive, 95. Instances of^ 91. May be different as to residents and non-residents, 79. Are not contracts, 92. As to peddling, etc., 94. LIQUORS; Regulation and sale of strictly under the police power, 67, 85. Manufacture and sale of, state may control or prohibit, 85, 99, 100, 161, 162. Federal Supreme Court on, concerning commerce, 160, 161, 162. Compensation not allowed when private property, previously used lawfully for liquor trade, is injured by such regulation, 175. New York court, contra, on this point, 176. LOTTERY COMPANIES; Charter may be amended without their consent, 124. MAY, SIR ERSKINE; Constitutional History, 15. On legislative jobbery, 15. On legislative protection of the weak, 30. MONOPOLIES; 168-172, 179, 180. In form of trusts, 173, 174. MUNICIPALITIES; Law concerning, of Roman origin, 5. Powers of, as to public health, 87, 88. Cannot disable themselves from providing for, 88. Sewers and waterworks are the private property of, in which the state is not interested, as in streets, 88. Cannot grant franchises unless authorized by state, 88. Cannot part with legislative function, 87, 88. Implied powers of, 144. Power to fix fares must be expressly conferred, 140. Power in, to grant an exclusive privilege, must be explicitly conferred, 140. Legislature may regulate fares previously fixed by, 140. Conflict between state and federal courts on this doctrine, 140. NATURALIZATION— Employment of unnaturalized person, 80. NUISANCES; Abating of, by equity process, 49, 50. May be declared such by legislature, or by municipalities, and their discretion decisive, 90. Unless where ur.reasonably exercised, 91, 92. Suppression of, 98. INDEX. 199 NEGRO RACE— Discrimination as to voting, 84. Discrimination as to education, 79. Discrimination as to R. R. cars, 79, 151. OLEOMARGARINE; Legislation concerning, 178. Generally sustained, 178. Power doubted in Michigan, 178. Federal regulation of sale of, for purposes of taxation, 179. ORDINANCES; Of city, requiring abutting owners to remove snow from sidewalks, not warranted by police power, 73. Cannot fix car-fares unless by express authority from the legislature, 140. Must be general and not discriminating, 89. May confer privileges enduring beyond corporate existence of conferee, 140. OIL; Illuminating, 26, 62, 65, 127. Oil Trusts, 124. PARLIAMENT; Transcendent powers of, devolved upon the peo- ple of the states, 20. But not conferred on the legislatures, 21. PEEL, SIR ROBERT; On protection of the weak, 30, POLICE POWER; Phrase essentially modern, 23. Derivation of the term, 23. Blackstone and Bentham on, 23, 24. Few decisions before last half-century, 25. Description of, by various eminent judges, 26, 27. Extent and limitations of, how ascertained, 25, 26, Incapable of exact definition, 25. Sometimes used as the equivalent of legislative power, 27. Generally applied to governmental control over persons and property, as respects social and public order, life, health and business, 25, 27, 98, 99, 100. Enumeration of subjects on which it has been exercised, 28, 29, 30, 31, 98-100. Constitutional limitations to its exercise are applied by the judges, 27. Exercise of the power for protection of the weak, 30. Recent exercise of, in labor legislation, 31. Decisions of federal supreme court concerning, numerous, 22, 32. Exercise of, recently extended by the decisions to the public convenience, 35. Exercised in the administration of justice, 37-52. 200 INDEX. POLICE POWER—Continued. When defence depends on federal law, 40, 41, 42. As to criminal conspiracies, 42, 43. By equity process, in suppression of crime, 43, 44. Remarkable development concerning this process in recent cases, especially federal, 44, 45, 168. Evolution of equity practice, 45. How far acts may be declared criminal, 46. Contempt proceedings may be regulated, 48. Practices indulged in under religious belief, punishable, 48, 49, 50, 51. Abating of nuisances by equity process, 49. Punishment by electrical apparatus, 39. Punishment by hard labor, 51. Criminal procedure may be different in different parts of the state, 51, 52. Concerning freedom of contract, 53-71. Legislature cannot dispossess itself of the right to exercise, 58, 100, 123, 124, 135. Nor can municipalities part with the legislative function, 87, 88. Limitation of police power by the constitutional obligation of equal protection, 72-85. Distinction between, and taxing power, 73, 74. When violates principle of equal classification, 74-78. Concerning public health, 85-101. Commerce which concerns more states than one, not within, 149. But state control sustained which only affects interstate com- merce indirectly, 150, 164, 174. Examples of statutes sustained, and the contrary, 150-156. Touching water-ways, 164-167. Existing result of development of law concerning police power by decisions, 186. Eleven propositions deduced from the decisions, 186-189. Ninety per cent of all legislation, at present, is in the exercise of, 189. PROFESSIONS; How may be regulated, 80. PROPERTY; Legislature may prescribe how may be used, 114. Especially when affected with a public writ, 106, 111, 112. In business, 167-186. QUARANTINE; Laws of state upheld, although obstructing in- terstate commerce, 150. INDEX. 201 RAILROADS; Legislature may impose liabilities on, for injury or death, not imposed on other persons or corporations, 56. Interchangeable mileage tickets, 58. Statute concerning "family-tickets" void, 78. Void statutes as to stock-killing, 74, 75. Cannot be compelled to pay attorney fees on unsuccessful appeals, or in damage cases unsuccessfully defended, 76, 77. Equal accommodations on, for negro race, 79. Officers of, cannot be punished for not paying for stock killed, 81. Are persons within 14th Amendment, 83. Method of assessing may be different from that of assessing other property, 83. State may prescribe qualifications of employees of; instances, 93. Regulation of crossings, bridges, etc., 96, 97. Regulations as to safety of passengers, trainmen, etc., 96, 97. Contracts, as to rates, by state, 126, 140. State Commissions, as to, 97. Federal court, the depository of the power to determine rea- sonableness of R. R. rates, 156. Instances of regulation, 97. Reasonableness of regulation strictly a judicial question, 96, 107. Public duties of, enforced by mandamus, 144, 145. Laws authorizing bridging navigable waters, 157, 165. Whole expense of change of grade, at crossing of highways, may be laid upon, 180, 181. Highway may be opened across, and entire expense imposed upon, under police power, 180, 181. Michigan decisions, contra, 181. Persons, not authorized agents of, may sell transportation on, 181, 183. Where state power of regulation of does not amount to regu- lation of commerce, 162. When may contract for exemption from liability for negli- gence of employee, 53. RELIGIOUS BELIEF; No justification of criminal acts, 48. Constitutional provisions as to, 49. RELIGIOUS PRACTICES; Causing disturbances, under state con- trol, 50, 51. RESIDENTS; Cannot be preferred to non-residents in certain particulars, 80. Statutes restricting trusteeships to, void, 82, 83. 302 INDEX. RIVERS; (See Waterways.) ROMAN LAW. 4. Influence on English law, 5. Principles adopted from, 5. Jury system derived from, 5. Maxims adopted from, 7. RUSSIA; Community of land in, 31, 32. SLAUGHTER COMPANIES, 170. STATE; Entire body of law within, is subject to change, at the will of state legislature, except as restricted by the federal constitution (or that of the state), 150, 151. State laws, affecting interstate commerce, generally sustained, if their real purpose is not to regulate commerce, 150, 164. State laws, rules of decision, in federal courts, 119. Ninety per cent of state legislation, at present, is in the exer- cise of police power, 189. STATUTES; Codification by, 10, 11. "Of Laboi-ers," 5 Eliz., ch. 4, 11. English Railway Traffic Act of 1852, 12. English Act concerning bills and notes, 1882, 13. Of frauds, 15, 16. Prof. Austin on, 16. Bishop Hoadly on interpretation of, 16. Cannot supersede judiciary law, because judges must con- strue and apply the statutes, 20. Compelling payment in full for unperformed contracts, void, 53, 54. English "Truck Act." 1 & 2 Wm. IV. ch. 37, 55. Forbidding certain contracts to accept wages in something other than money, and fixing times of payment, not sus- tained, 56. Forbidding sales to workmen at greater profit than to others, void, 55, 68. Forbidding employment of women, and children under 18, more than ten hours a day, sustained, 55. Forbidding certain methods of paying wages, void, 56. Examples of statutes sustained, or set aside, 56, 57, 58. Penn. "Store-order Act" of 1881, 64. Federal, regarding seamen, 65. Illinois "Anti-Trust Law" of 1891, 173. Texas "Anti-Trust Law" of 1889, 173. Repeal of similar English laws in 1844, 173. Denying equal protection, 72-85. INDEX. 203 STATUTES— Continued. Repealing co-servant rule, sustained, and liberally construed, 81, 82. "Anti-Department Store Law" of Missouri, void, 82. Exception to rule that construction of state statute by state court is binding on federal courts, 120. Mass. statute of 1831, reserving right of repeal of corporate charters, 136. Illinois statute, forbidding same rate for long and short hauls, 148. U. S. River and Harbor Act of 1890, 166. Conn, law as to change of grade of railroad at highway cross- ing, 181. N. Y. "Anti-R. R. Ticket Scalpers Law," 181-183. N. Y. law punishing sale of prison-made articles, not so la- beled, 183. STRIKES; May be enjoined, 44, 168. SUNDAY LAWS; As to barber-shops, 78, 174. Against carrying freight on interstate railroad on Sunday, sustained, 151. STREET RAILWAYS; Municipal contracts with, 140. Fixing of fares for, by municipality, and legislature, 140. TAXATION; Of railroads, by state board, in a way different from other property, sustainable, 83. Legislative contracts of exemption from, 105, 121, 122, 131. Power of exemption may finally be denied, 122. State taxation of instrumentalities of commerce, 154, Instances of, 154, 155. TELEGRAPH: State laws regulating delivery of messages by interstate telegraph company encroach on power vested in Congress, 152. May be required to place wires under ground, 162, 163. Interstate may be regulated by local law in cities, 162, 163. TELEPHONES; Rates of may be controlled by state, 114, 115, 179. TOBACCO; Charges of warehouses, controlled by state, 114. Cigars may be made in tenement houses, and N. Y. law for- bidding, void, 176, 177. TRADE; In grain, flour, cattle, labor, etc., formerly regulated by statute in England, 70. Tendency here to return to that abandoned policy, 70, 71. 304 INDEX. TRADES UNIONS— Enjoined for protection of business or property, 43, 44, 168. TRUSTS; State anti-trust laws, 173. English legislation against repealed, 173. Pipe and Steel and Stock-yards cases, 174. UNIVERSITIES; Corporate bodies of the two universities, in England, subject to parliamentary control, 141. UNITED STATES GOVERNMENT; Jurisdiction of, within the states, 157, 158. WAGES; Statutes against paying in paper which is not redeem- able in lawful money, void, 54, 55, 56. Ancient statutory regulation of, in England, 70, Suits to recover, may be regulated, 83, 84. WATERWAYS; State may authorize bridges and dams, although interstate commerce may be indirectly affected, 150, 164, 165. Harbor lines may be fixed by state, when, 166. WATER; Regulation of price of, 112. Water works, charter contract with, upheld, 132, 133. YEAR-BOOKS; Contain much of our received law; examples, 6, 7. LAW LIBRARY OF LOS ANGELES COUNTY LAW LIBRARY UNIVERSITY OF CALIFORNU LOS ANGELES ^ '^1;_,^«. m KTBIBZH