public morals; the individual by whom it is occupied may be punished by indictment and the implements of gaming removed; and a house in which indecent and obscene pictures are exhibited is a nuisance, which may be abated by the removal of the pictures. Thousands of young men are lured to [some of] our public theaters, in consequence of their being a resort, nightly, of the profligate and abandoned; this is a nuisance. Yet in this, and in the other cases stated, it will not be contended that a person would be justified in demolishing the house, for the obvious reason that to suppress the nuisance such an act was unnecessary. So in the case before us the nuisance was not caused by the erection itself, but by the persons who resorted there for the purpose of prostitution. The authority given to the town to suppress bawdy houses does not support and authorize an ordinance directing the demolition of buildings, in which such nuisance is committed."1

§ 123. How far use of land may be controlled by requirement of license? — Inasmuch as certain uses, to which lands may be put, require police regulation and supervision, in order to prevent the threatened public injury, by bringing those cases within the strict control of the police, it is quite reasonable for the State to require the issue of licenses, before it is lawful to do those things upon the land, which are likely to endanger the public welfare in any way. For example, in order to enforce the law against the erection or enlargement of wooden buildings, it would be reasonable to require a permit or license, before one can lawfully make any improvement or repairs to his buildings." In the same manner may the city require a license or permit to construct any kind of building, so that it may take the proper precautions against the danger to the public,

1 Welch v. Stowell, 2 Dougl. (Mich.) 332.

2 Welch v. Hotchkiss, 39 Conn. 140 (12 Am. Rep. 383).

resulting from house-building. This is a very common police regulation. The requirement of a license and of a small license fee, large enough to cover the cost of issuing the license, and of maintaining the necessary police supervision, cannot be questioned in any case where the act or thing, for which the license is required, contains some element of danger to the public. All such uses of lands are subject to police regulation, and the legislature is the supreme judge of the kind of regulation that the public welfare requires, subject only to the power of the court to confine all police regulations to the prevention of the threatened public injury. But one does not need any license from the State, nor can he be required to procure one, to make a harmless use of his lands. His right to use them is a natural right, which he possesses independently of positive or statutory law. As has been already fully explained," a license, strictly so-called, is an authority to do that, which on account of its possible danger to the public is subjected to police regulation, and which for that reason is rightly declared to be unlawful without the license. It is not required of the individual for the purpose of increasing the revenues of the city or State, although the public treasury may be benefited incidentally by the exaction of a license fee. It is a police regulation, which is only justifiable when it is instituted to avert or regulate some threatened public injury. While it is probably true that a license tax, as a tax, in the absence of special constitutional restrictions, may be imposed upon a particular use of lands, as upon certain trades and occupations, which are in no way likely to prove harmful to the public; the license tax must be tested by the consideration of the constitutional restrictions upon the

1 See Ah He v. Crippen, 19 Cal. 491; Ah Lew v. Choate, 24 Cal. 562, in which it was held that a man's right to mine on his own land cannot be controlled by the imposition of a license.

2 See ante, § 101, in which the whole subject of licenses, as distinguished from taxation, is exhaustively treated.

power of taxation; and where a municipal corporation has not the power under its charter to impose a license tax as a tax, it cannot impose it as a police regulation upon those who do not make use of their lands in any dangerous manner.1

§ 124. Improvement of property at the expense and against the will of the owner. It has long been an established rule of law, and it is still so in the absence of a modifying statute, that the owner of lands is not responsible for any annoyance or discomfort, proceeding from some natural cause, and not from the act of some individual; and he cannot be made to respond in damages for his failure to remove the cause of annoyance, even though the public health of the neighborhood is seriously affected. Thus the owner of swamp lands cannot be held responsible for the injury to the health of the neighbors, caused by the deadly exhalations of his swamp. The owner of land is responsible for the injury or annoyance flowing from the construction of artificial swamps, and the keeping of stagnant water; but he is, independently of statute, under no obligation to drain a natural swamp, in order to improve the public. health of the community. It cannot be questioned that the owner of swamps or other unhealthy lands may be compelled to allow them to be drained, and to be otherwise cleared of things which affect the public. For while the owner of lands is not responsible for the continuance of a natural nuisance, he has no indefeasible right to its continuance; and the State may remove such a nuisance, with or without the owner's consent, provided the expense of

1 State v. Hoboken, 33 N. J. 280. In this case the ordinance directed that owners of land should be assessed a certain amount for the privilege of building vaults in front of their dwellings. It was held to be no license in the sense of being a police regulation, and, as a license tax, it could not be referred to the charter power to "regulate" the construction of such vaults. But see ante, § 101.

2 Reeves v. Treasurer, 8 Ohio St. 333.

removing it is borne by the State and not imposed upon the owner. In many of the States, statutory provisions have been made for the compulsory drainage of swamp lands, and the only cause for disputing the constitutionality of such legislation is the provision that the entire cost of drainage shall be imposed upon the owner. The constitutionality of such legislation has, as a reasonable exercise of the police power of the State, been generally sustained,1 on the general ground that the State may impose upon the owner the duty of draining his low lands, in consideration of the consequent increase in the value of his lands. The Supreme Court of Wisconsin justifies such legislation in the following language: "It would seem to be most reasonable that the owners of the lands drained and reclaimed should be assessed to the full extent, at least of his special benefits, for he has received an exact equivalent and a full pecuniary consideration therefor, and that which is in excess of such benefits should be paid on the ground that it was his duty to remove such an obvious cause of malarial disease and prevent a public nuisance. The duty of one owner of such lands is the duty of all, and in order to effectually enter upon and carry out any feasible system of drainage through the infected district, all such owners may be properly grouped together to bear the general assessment for the entire cost proportionably. Assessment in this and similar cases is not taxation." The cases generally sustain the position of the Wisconsin court, and justify the imposition upon the owner of the entire cost of drainage, whether it

2

1 Donnelly v. Decker, 58 Wis. 461 (46 Am. Rep. 637); Norfleet v. Cromwell, 70 N. C. 634 (16 Am. Rep. 787); Anderson v. Kerns, 14 Ind. 199; O'Reilly v. Kankakee Val. Draining Co., 32 Ind. 169; Draining Co. Case, 11 La. Ann. 338; Woodruff v. Fisher, 17 Barb. 224; French v. Kirkland, 1 Paige, 111; Williams v. Mayor of Detroit, 2 Mich. 560; Phillips v. Wickham, 1 Paige, 590; Sessions v. Crunkleton, 20 Ohio St. 349; Bancroft v. Cambridge, 126 Mass. 438; Dingley v. Boston, 100 Mass. 544; Davidson v. New Orleans, 96 U. S. 97; Hadgar v. Supervisors, 47 Cal. 222.

* Donnelly v. Decker, 58 Wis. 461 (45 Am. Rep. 637).

exceeds or falls within the special benefits he receives from the drainage; but in New Jersey it has been definitely settled that the assessment upon land owners for the drainage of the low lands must be limited to the amount of special benefits so imparted to them, and any additional assessment is unconstitutional. All the cases agree that the compulsory drainage is never justifiable except when the public health requires it. It can never be ordered purely for private gain."

1 Pequest Case, 41 N. J. L. 175; Tidewater Co. v. Coster, 3 C. E. Green, 518; State v. Driggs Drainage Co., 45 N. J. L. 91. "The owners of these lands could not be convicted of maintaining a public nuisance because they did not drain them; even though they were not the owners of the lands upon which the obstructions are situated. It does not appear by the act or the complaint that the sickness to be prevented prevails among inhabitants of the wet lands, nor whether these lands will be benefited or injured by draining; and certainly, unless they will be benefited, it would seem to be partial legislation to tax a certain tract of land, for the expense of doing to it what did not improve it, merely because, in a state of nature, it may be productive of sickness." Woodruff v. Fisher, 17 Barb. 224.

2 State v. Driggs Drainage Co., 45 N. J. L. 91. In Woodruff v. Fisher, 17 Barb. 224, the court say: "If the object to be accomplished by this statute may be considered a public improvement, the power of taxation seems to have been sustained upon analogous principles. Citing People v. Mayor, etc., of New York, 4 N. Y. 419; Thomas v. Leland, 24 Wend. 65; Livingston . Mayor, etc., New York, 8 Wend. 85 (22 Am. Dec. 622). But if the object was merely to improve the property of individuals, I think the statute would be void, although it provided for compensation. The water privileges on Indian River cannot be taken or affected in any way solely for the private advantage of others, however numerous the beneficiaries. Several statutes have been passed for draining swamps, but it seems to me that the principle above advanced rests upon natural and constitutional law. The professed object of this statute is to promote public health. And one question that arises is, whether the cwners of large tracts of land in a state of nature can be taxed to pay the expense of draining them, by destroying the dams, etc., of other persons away from the drowned lands, and for the purposes of public health. This law proposes to destroy the water power of certain persons against their will, to drain the lands of others, also, for all that appears against their will; and all at the expense of the latter, for this public good. If this taxation is illegal, no mode of compensation is provided, and all is illegal."