may make police regulations, although they may interfere with the full enjoyment of private property, and though no compen summary manner; but it seems the Legislature cannot make that a nuisance which was not so at the common law, so as to be liable to summary abatement. Coe v. Schultz, 47 Barb. 64; and see Roberts v. Ogle, 30 Ill. 459. Thus, a city ordinance declaring a wharf a nuisance, when it is not so within any general law of the State or city, is invalid. Yates v. Milwaukee, 10 Wall. 497. But see cases cited below sustaining statutes which declare that spirituous liquors are a nuisance, and the sale of them a nuisance. "Dog laws" (so called) were held constitutional in Mitchell v. Williams, 27 Ind. 62; State v. Cornwall, 27 Ind. 120; Blair v. Forehand, 100 Mass. 136. Also a law for the removal of dead animals, and that no action lay for the value of their carcasses. Underwood v. Green, 3 Robt. 86. And an ordinance of a board of health as to slaughter-houses, prohibiting their erection within certain limits. Ex parte Shrader, 33 Cal. 279. And harbor regulations. Roosevelt v. Godard, 52 Barb, 533. As to drains, see West v. B. P. Draining Co. 32 Ind. 138; and, also, see "Eminent Domain." As to police powers over interments of the dead, see Kincaid's Appeal, 66 Penn. St. 411, in which case a statute authorizing the sale of a burying-ground, and disinterment of the bodies, the proceeds of sale to be applied to the expense of removal, was upheld. Laws declaring places kept for the illegal sale of intoxicating liquors to be nuisances have been held valid. Commonwealth v. Howe, 13 Gray, 26. And laws for the forfeiture of liquors. Gray v. Kimball, 42 Me. 299; State v. Miller, 48 Me. 576; Our House v. State, 4 Greene (Iowa), 172; State v. Brennan's Liquors, 25 Conn. 278; Gill v. Parker, 31 Vt. 610; Santo v. State, 2 Clarke (Iowa), 165; per contra, see Hibbard v. People, 4 Mich. 125, there being no provision for notice or trial; a fortiori prohibitory laws are valid. People v. Gallagher, 4 Mich. 244. A statute prohibiting the distillation of grain was held valid, in Ingram v. State, 39 Ala. 247. But the entire prohibition of manufacture and sale of liquor, except to State agents, and by them for medicinal purposes, was held void in State v. Beebe, 6 Ind. 501. License laws regulating the sale of liquors are valid. Keller v. State, 11 Md. 525; Mason v. Lancaster, 4 Bush (Ky.) 406; Metropolitan Board v. Barrie, 34 N. Y. 657; Perdue v. Ellis, 18 Geo. 586. The sale of liquors within a certain district, e. g., within five miles of a college, may be prohibited. Dorman v. State, 34 Ala. 216. A statute requiring a license fee to be paid to a charity by persons following occupations affecting the public morals, e. g., theatrical exhibitions, is a proper exercise of the police powers. Charity Hospital v. De Bar, 11 La. Ann. 385; and see "Taxation." And so, also, is an act requiring the gauging of casks, &c., by a public gauger, and providing for his fees. Addison v. Saulnier, 19 Cal. 82. That the police power does not extend to capitation tax upon any class of foreigners qua foreigners, as such a tax would interfere with the power of Congress over commerce, see Lin Sing v. Washburn, 20 Cal. 534. Petty offenses may be restrained by summary proceedings under the police powers; on this principle, a city ordinance for the summary conviction and punishment of lewd women was upheld in Shafer v. Mumma, 17 Md. 331. But a statute sation is given. So, an act authorizing harbor-masters to direct vessels where to station, though interfering with private en authorizing the arrest of a person disobeying orders, &c., at a fire, and his detention until the fire should be extinguished, was held void, as it contained no provision for a trial. Judson v. Reardon, 16 Minn. 431. And imprisonment of children without crime cannot be justified under the police power. People v. Turner, 55 Ill. 280. "Law of the land," in prosecutions for offenses punishable capitally, or by infamous punishment, includes and requires indictment by a grand jury. Jones v. Robbins, 8 Gray. 329. The constitutional guaranty may be waived. Thus, a person becoming surety on an appeal bond, under a statute authorizing judgment to be entered summarily on the bond against him, cannot object to the validity of the statute. Chappee v. Thomas, 5 Mich. 53; Davidson v. Farrell, 8 Minn. 258. And the same was held in respect to sureties in replevin. Pratt v. Donovan, 10 Wisc. 378. But the court was equally divided in respect to the validity of a similar statute in case of a criminal recognizance, Lang v. People, 14 Mich. 439, and were of opinion that a similar statute authorizing summary process against the sureties of a town treasurer was void. Lenz v. Charlton, 23 Wisc. 478. Statutes for the protection of the public safety and promotion of the public good have been held valid under the police power, although, within certain reasonable limits, they departed from the regular form of judicial proceeding, were summary in their operation, and caused injury and loss to individuals. As illustrations: an act providing that the owner of unfenced land should have no action for trespass by cattle thereto was sustained in Myers v. Dodd, 9 Ind. 290. A statute prohibiting the keeping of slaves on a plantation without a white person also present. Molett v. State, 33 Ala. 408. An act requiring railroads to rebuild fences destroyed by fire along their tracks. Penn. R. R. v. Riblet, 66 Penn. St. 164. But where the convenience and safety of travelers are provided for in the charter of a road, and penalties affixed, a subsequent statute making the forfeiture of the charter a penalty for neglect in keeping any part of the road in repair cannot be sustained as a valid exercise of the police power. People v. Jackson, &c. Pl. R. 9 Mich. 285. It is within the police power to compel fishways to be made by private owners in their established dams in unnavigable streams. State v. Franklin Falls Co. 49 N. H. 240. But would not be if the owners had acquired a prescriptive right as against the public. Ibid. p. 251. The court held, however, that no such right had been acquired even by twenty years' user. The United States has no police powers within State limits. United States v. De Witt, 9 Wal. 41. The provisions of the United States Constitution as to due process of law are not restrictions upon the States. Twitchell v. Commonwealth, 7 Wal. 321. The act of Congress of 6th August, 1861, requiring the President in certain cases to cause certain property "to be seized and confiscated and condemned," did not authorize it to be done except by due process of law. Hodgson v. Millward, 3 Grant's Cas. (Penn.) 406. The act of Congress of March 3, 1863, making the order of the President a defense against any action to recover damages for any search, seizure, etc., made by its authority, was held unconstitutional in Griffen v. Wilcox, 21 Ind. 370; and see Drehman v. Stifle, 8 Wal. 595. gagements, is not a violation of the Constitution.* A statute of Massachusetts which, without compensation, imposes a penalty on any person who shall take, carry away, or remove any stones, gravel, or sand from any of the beaches in the town of Chelsea, for the protection of the harbor of Boston, and the prohibition of which extends as well to the owner of the soil as to strangers, has been held constitutional and valid; this is not such a taking of private property and appropriating it to public use, as to render it void because no compensation is provided for the owners, upon the ground that it is only a just and legitimate exercise of the power of the Legislature to regulate and restrain such particular use of property as would be injurious to the public.† In the same State it is well settled that the Legislature has power to make regulations in the nature of police regulations, which, though affecting the value and even the enjoyment of private property, are held not to conflict with the constitutional provisions devised to secure and protect private property. By an ordinance passed in 1641, by the colony of Massachusetts, the proprietors of upland bordering on the sea have an estate in fee in the adjoining flats above low-water mark, and within one hundred rods of the upland; but notwithstanding this right, the Legislature has power to establish lines in the harbor of Boston, beyond which no wharf shall be extended or maintained, and to prohibit building beyond such lines; and such statutes, although they make no compensation to the proprie tors, are not unconstitutional as taking private property and appropriating it to public uses without compensation.‡ In this case the court said: We think it is a settled principle, growing out of the nature of well-ordered civil society, that every holder of property, however absolute and unqualified may be his title, holds it under the implied liability that his use of it shall not be injurious to the equal enjoyment of others having an equal right to the enjoyment of their property, nor injurious to the rights of the community. All property in this commonwealth, as well that in the interior as that bordering on tide-waters, is derived directly or indirectly from the Government, and tremely difficult to lay down any general 55. Vanderbilt v. Adams, 7 Cowen, 349. +Commonwealth v. Tewksbury, 11 Met. It was well said, in this case, to be ex rule. Commonwealth v. Alger, 7 Cush. 53, per Shaw, C. J. held subject to those general regulations which are necessary to the common good and general welfare. Rights of property, like all other social and conventional rights, are subject to such reasonable limitations in their enjoyment, as shall prevent them from being injurious, and to such reasonable restraints and regulations established by law, as the Legislature, under the governing and controlling power vested in them by the Constitution, may think necessary and expedient. This is very different from the right of eminent domain,—the right of a government to take and appropriate private property to public use whenever the public exigency requires it, which can be done only on condition of provid. ing a reasonable compensation therefor. The power we allude to is rather the police power, the power vested in the Legislature by the Constitution, to make, ordain, and establish all manner of wholesome and reasonable laws, statutes, and ordinances, either with penalties or without, not repugnant to the Constitution, as they shall judge to be for the good and welfare of the commonwealth, and of the subjects of the same. It is much easier to perceive and realize the existence and sources of this power than to mark its boundaries, or prescribe limits to its exercise. There are many cases in which such a power is exercised by all well-ordered governments, and where its fitness is so obvious that all well-regulated minds will regard it as reasonable. Such are the laws to prohibit the use of warehouses for the storage of gunpowder near habitations or highways; to restrain the height to which wooden buildings may be erected in populous neighborhoods, and require them to be covered with slate or other incombustible material; to prohibit buildings from being used for hospitals for contagious diseases, or for the carrying on of noxious or offensive trades; to prohibit the raising of a dam and causing stagnant water to spread over meadows near inhabited villages, thereby raising noxious exhalations, injurious to health and dangerous to life. Nor does the prohibition of such noxious use of property-a prohibition imposed because such use would be injurious to the public-although it may diminish the profits of the owner, make it an appropriation to a public use, so as to entitle the owner to compensation. If the owner of a vacant lot in the midst of a city could erect thereon a great wooden building, and cover it with shingles, he might obtain a larger profit of his land than if obliged to build of stone or brick, with a slated roof. If the owner of a warehouse in a cluster of other buildings could store quantities of gunpowder in it for himself and others, he might be saved the great expense of transportation. If a landlord could let his building for a small-pox hospital or a slaughter house, he might obtain an increased rent. But he is restrained, not because the public have occasion to make the like use or to make any use of the property, or to take any use of the property, or to take any benefit or profit to themselves from it,—but because it would be a noxious use, contrary to the maxim, sic utere tuo ut alienum non lædas. It is not an appropriation of the property to a public use, but the restraint of an injurious private use by the owner; and it is therefore not within the principle of property taken under the right of eminent domain. The distinction, we think, is manifest in principle; although the facts and circumstances of different cases are so various that it is often difficult to decide whether a particular exercise of legislation is properly attributable to the one or the other of these two acknowledged powers.* There is now no occasion and no ground to deny or question the full and sovereign power of the commonwealth, within its limits, by legislative acts to exercise dominion over the sea and the shores of the sea, and all its arms and branches, and the lands under them, and all other lands flowed by tide-water, subject to the rights of riparian ownership. Whether any portion of this sovereignty remained in the British crown, it is now immaterial to inquire; for it is quite certain that the entire right of property in the soil, was granted to the colonists in their aggregate capacity; and if any power remained in the crown, it was that of dominion and regulation of the public right; and this was wholly determined by the Declaration of Independence, acknowledged and acceded to by the treaty of peace, sanctioned by an act of Parliament. This right of dominion and controlling power over the sea and its coasts, shores, and tide-waters, it is settled that it vested in the several States in their sovereign capacity respectively, and was not transferred to the United States by the adoption of the Constitution intended to form a more perfect union. Special jurisdiction has been from time to time vested in the General Government for special purposes; but the general jurisdiction remains with the several States, subject, however, to such regulations as Congress may make in the exercise of their admitted powers to regulate foreign commerce and commerce among the States. Such is the principle determined by the Supreme Court of the United States, the ultimate tribunal to decide questions of this kind.f So it has been expressly decided in the same State that the clause in the Constitution declaring that private property is not to be taken for public use without compensation, does not apply to the laws declaring that certain property shall be destroyed or confiscated as being injurious to the interests of public policy, as liquor or gunpowder. It is competent for the Legislature to declare the possession of certain articles of property, either absolutely or when held in particular places and under particular circumstances, to be unlawful, because they would be injurious, dangerous, or obnoxious. On the same general grounds, the power of the Legislature over the great internal communications of a State, whether by land or water, has been asserted. It has been contended that a navigable river is a public highway, and that the Legislature * Commonwealth v. Alger, 7 Cush. 53, 84. I have already, ante, p. 424, called attention to what I suppose to be the true rules of terminology in regard to eminent domain and taxation. + Commonwealth v. Alger, 7 Cushing, 53, 82, citing New Orleans v. The United States, 10 Pet. 662, 737; Pollard v. Hagan, 3 How. 212. Fisher v. McGirr, 1 Gray, pp. 26, 41. |