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was, for that reason, upon objections filed by Mrs. Wurts, set aside by an order of the Supreme Court, affirmed by the Court of Errors. 10 Vroom, 433; 12 Vroom, 175.
On May 17, 1879, after the completion of the work, the commissioners made a report to the court, pursuant' to the statute of 1871, showing the expense to have been $107,916.07. No objections to that report having been filed after four weeks' notice, the court on June 23, ordered the commissioners to distribute that sum upon the land men. tioned in their said report, in proportion, as nearly as they can judge, to the benefit derived from said drainage by the several parcels of land to be assessed.” The commissioners made an assessment accordingly, the proportion of which on the lands of Mrs. Wurts was $13,347.84, and, after notice to and hearing of all parties who desired to object to the assessment, reported it to the Supreme Court, which directed it to be modified as to certain lands of other parties lying outside the original survey, and in other respects confirmed the assessment. notwithstanding objections made to it by the devisees of Mrs. Wurts; and its judgment was affirmed in the Court of Errors. 13 Vroom, 553; 14 Vroom, 456. The judgment of the Court of Errors was the final judgment in the case, and this writ of error was addressed to the Supreme Court because at the time of suing out the writ of error the record had been transmitted to that court and was in its possession. 105 U. S. 701.
The error assigned was that “the Act of March 8, 1871, upon which the said judgment and proceedings are founded, violates the Constitution of the United States in this, that it deprives the plaintiffs in a error of their property withont due process of law, and denies to them the equal protection of the laws, and violates the first section of the Fourteenth Amendment to the Constitution of the United States."
Mr. Sumwel Dickson and Mr. J. G. Shipman, for plaintiffs in
Mr. Theodore Little, for defeudants in error.
MR. JUSTICE GRAY, after making the foregoing statement of facts, delivered the opinion of the court.
General laws anthorizing the drainage of tracts of swamp and low lands, by commissioners appointed upon proceedings instituted by some of the owners of the lands, and the assessment of the whole expense of the work upon all the lands within the tract in question, have long esisted in the State of New Jerser, and have been sustained and acted on by her courts, under the Constitution of 1776, as well as under that of 1844. Stats. December 23, 1783, Wilson's Laws, 382 ; November 29, 1788, and November 24. 1792, Paterson's Laws, 84, 119; Jones v. Lore, Pennington, 1048; Doremus v. Smith, 1 Southard, 142; Westcott v. Garrison, 1 Halsted, 132; State v. Frank & Guisbert Creek Co., 2 J. S. Green, 301 ; State v. Newark, 3 Dutcher, 185, 194 ; Berdan v. Riser Drainage Co., cited 3 C. E. Green, 69; Coster v.
Tide Wuter Co., 3 C. E. Green, 54, 68, 518, 531 ; State v. Blake, 6 Vroom, 208, and 7 Vroom, 442; Hougland v. Wurts, 12 Vroom, 175, 179.
In State v. Nerourk, 3 Dutcher, 185, 194, the Supreme Court said: “ Laws for the drainage or embanking of low grounds, and to provide for the expense, for the mere benefit of the proprietors, without reference to the public good, are to be classed, not under the taxing, but the police power of the government."
In Coster v. Tide Wuter Co., 3 C. E. Green, 54, 518, the same view was strongly asserted in the Court of Chancery and in the Court of Errors. The point there decided was that a statute providing for the drainage of a large tract of land overflowed by lide-water, by a corporation chartered for the purpose, none of the members of which owned any lands within the tract, if it could be maintained as an exercise of the right of eminent domain for a public use, yet could not authorize an assessment on the owners of such lands for anything beyond the bencfits conferred upon them. But the case was clearly and sharply distinguished from the case of the drainage of lands for the exclusive benefit of the owners upon proceedings instituted by some of them.
Chancellor Zabriskie said: “ But there is another branch of legislative power that may be appealed to, as authorizing the taking of the lanıls required for the works to drain these meadows.
It is the power of the government to prescribe public regulations for the better and more economical management of property of persons whose property alljoins, of which, from some other reason, can be better managed and improved by some joint operation, such as the power of regulating the building of party walls; making and maintaining partition fences and ditches; constructing ditches and sewers for the draining of uplands or marshes, which can more advantageously be drained by a common sewer or ditch. This is a well-known legislative power, recognized and treated of by all jurisconsults and writers upon law through the civilized world ; a branch of legislative power exercised by this State before and since the Revolution, and before and since the adoption of the present Constitution, and repeatedly recognized by our courts. The legislature has power to regulate these subjects, either hy general law, or by particular laws for certain localities or particular and defined tracts of land. When the Constitution vested the legislative power in the Senate and General Assembly, it conferred the power to inake these public regulations as a well understood part of that legislative power." ". The principle of them all is, to make an improvement common to all concerned, at the common expense of all. And to effect this object, the Acts provide that the works to effect the drainage may be located on any part of the lands drained, paying the owner of the land thus occupied compensation for the damage by such use. So far private property is taken by them ; farther it is not. In none of them is the owner divested of his fee, and in most there is no corporation in which it could be vested, and for all other purposes the title of the land
reinained in the owner. To effect such common drainage, power was in some cases given to continue these drains through anjacent lands not drained, upon compensation. All this was an ancient and wellknown exercise of legislative power, and may well be considered as included in the grant of legislative power in the Constitution.” 3 C. E. Green, 68–71.
Chief Justice Beasley, in delivering the judgment of the Conrt of Errors, enforced the saine distinction, saying : “ This case, with regard to the grounds on which it rests, is to be distinguished from that class of proceedings by which meadows and other lands are drained on the application of the land owners theinselves. In the present instance, the State is the sole actor, and public necessity or convenience is the only justification of her intervention. But the regulations established by the legislative power, whereby the owners of meadow lanels are compelled to submit to an equal burden of the expense incurred in their inprovement, are rules of police of the same character as provisions concerning party walls and partition fences. To these cases, therefore, the principle upon which the decision of the present case rests is not to be extended.” 3 C. E. Green, 531.
These full and explicit statements have been since treated by the courts of New Jersey as finally establishing the constitutionality of such statutes.
In State v. Blake, 6 Vroom, 208, and 7 Vroom, 442, a statute anthorizing a tract of swamps and marsh lands to be drained by commissioners elected by the owners of the lands, and the entire expense assessed upon all the owners, was held to be constitutional, although no appe:l was given from the assessment. In the Supreme Court it was said : “ This branch of legislative power which regulates the construction of ditches and secures the drainage of meadows and marshy lands has been exercised so long, and is so fully recognized, that it is now too late to call it in question. It is clearly affirmed in The Tidle Water Co. v. Coster, and cannot be opened to discussion.” 6 V room, 211. And the Court of Errors, in a unanimous judgment, approved this statement of the Supreme Court, as well as that. of Chief Justice Beasley, in Custer v. Tide Water Co., above quoted, 7 Vroom, 447, 448.
The constitutionality of the statute of 1871, under which the proceedings in the case at bar were had, was upheld by the Supreme Court and the Court of Errors upon the ground of the previous decisions. In re Lower Chatham Drainage, 6 Vroom, 497, 501 ; In re Pequest River Drainage, 10 V room, 433, 434; 12 Vroom, 175, 179 ; 13 Vroom, 553, 554, and 14 Vroom, 456. The further suggestion made by the Supreme Court in 6 Vroom, 501, 506, and 10 V room, 434, that this statute could be maintained as a taking of private property for a public use, was disapproved by the Court of Errors in 12 Vroom, 178.
In Kean v. Driggs Drainage Co., 16 Vroom, 91, cited for the plaintiffs in error, the statute that was held unconstitutional created a prirate corporation with power to drain lands without the consent or application
anya of the owners; and the Supreme Court observed that in the opinions of the Court of Errors in the present case and in Coster v. Tide Water Co., the distinction was clearly drawu between meadow drainage for the exclusive benefit of the owners, to be done at their sole expense, and drainage undertaken by the public primarily as a matter of public concern, in which case the assessment upon land owners must be limited to benefits imparted. 16 Vroom, 94.
This review of the cases clearly shows that general laws for the drainage of large tracts of swamps and low lands, upon proceedings instituted by some of the proprietors of the lands to compel all to contribute to the expense of their drainage, have been maintained by the courts of New Jersey (without reference to the power of taking private property for the public use under the right of eminent domain, or to the power of suppressing a nuisance dangerous to the public health) as just and constitutional exercise of the power of the legislature to establish regulations by which adjoining lands, held by various owners in severalty, and in the improvement of which all have a common interest, but which, by reason of the peculiar natural condition of the whole tract, cannot be improved or enjoyed by any of them without the concurrence of all, may be reclaimed and made useful to all at their joint expense. The case comes within the principle upon which this court upheld the validity of general mill Acts in lead v. Amoskeag Manufacturing Co., 113 U. S. 9.
It is also well settled by the decisions of the courts of New Jersey that such proceedings are not within the provision of the Constitution of that State securing the right of trial hy jury. New Jersey Constitution of 1776, art. 22 ; Constitution of 1844, art. 1, sec. 7; Scudder
Trenton Delaware Falls Co., Saxton, 694, 721-725; In re Louer Chatham Drainage, 7 Vroom, 442; Howe v. Plainfield, 8 Vroom, 145.
The statute of 1871 is applicable to any tract of land within the State which is subject to overflow from freshets, or which is usually in low, marshy, boggy or wet condition. It is only upon the application of at least five owners of separate lots of land included in the tract, that a plan of drainage can be adopted. All persons interested have opportunity by public notice to object to the appointment of commissioners to execute that plan, and no commissioners can be appointed against the remonstrance of the owners of the greater part of the lands. All persons interested have also opportunity by public notice to be heard before the court on the commissioners' report of the expense of the work, and of the lands which in their judgment ought to contribute ; as well as before the commissioners, and, on any error in law or in the principles of assessment, before the court, upon the amount of the assessment.
As the statute is applicable to all lands of the same kind, and as no person can be assessed under it for the expense of drainage without notice and opportunity to be heard, the plaintiffs in error have neither
been denied the equal protection of the laws, nor been deprived of their property without due process of law, within the meaning of the Fourteenth Amendment of the Constitution of the United States. Barbier v. Connolly, 113 U. S. 27, 31; Wulker v. Suuvinet, 92 U. S. 90;
Davidson v. New Orleans, 96 U. S. 97; Hagar v. Reclamation District, 111 U. S. 701.
YICK WO v. HOPKINS. WO LEE v. HOPKINS.
SUPREME COURT OF THE UNITED STATES. 1886.
[118 U. S. 356.) THESE two cases were argued as one and depended upon precisely the same state of facts; the first coming here upon a writ of error to the Supreme Court of the State of California, the second on appeal from the Circuit Court of the United States for that district.
The plaintiff in error, Yick Wo, on August 24, 1885, petitioned the Supreme Court of California for a writ of hubeas corpus, alleging that he was illegally deprived of his personal liberty by the defendant as sheriff of the city and county of San Francisco.
The sheriff made return to the writ that he held the petitioner in custody by virtue of a sentence of the Police Judges Court, No. 2, of the city and county of San Francisco, whereby he was found guilty of a violation of certain ordinances of the board of supervisors of that county, and adjudged to pay a fine of $10, and, in default of payment, be imprisoned in the county jail at the rate of one day for each dollar of fine until said fine should be satisfied, and a commitment in consequence of non-payment of said fine.
The ordinances for the violation of which he had been found guilty were set out as follows:
Order No. 1569, passed May 26, 1880, prescribing the kind of buildings in which laundries may be located.
“The people of the city and county of San Francisco do ordain as follows:
“Sec. 1. It shall be unlawful, from and after the passage of this order, for any person or persons to establish, maintain, or carry on a laundry within the corporate limits of the city and county of San Francisco without having first obtained the consent of the board of supervisors, except the same be located in a building constructed either of brick or stone.
“Sec. 2. It shall be unlawful for any person to erect, build, or maintain, or cause to be erected, built, or maintained, over or upon the roof of any building now erected or which may hereafter be erected within the limits of said city and county, any scaffolding, without first obtaining the written permission of the board of supervisors, which permit