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ally upon two grounds : 1. That it subjects corporations to a virtual destruction by the legislature; and 2. That it is an attempt to control the obligation of one person to another, in matters of merely private concern.
“ All the cases agree that the indispensable franchises of corporations can not be destroyed or essentially modified. This is the very point upon which the leading case of Dartmouth College v. Woodward, was decided, and which every well considered case in this country maintains. But when it is attempted upon this basis to deny the power of regulating the internal policy of railroads, and their mode of transacting their general business, so far as it tends unreasonably to infringe the rights or interests of others, it is putting the whole subject of railway control quite above the legislation of the country.
This is a control by legislative action, coming within the operation of the maxim, sic utere tuo ut alienum non lædas, and which has always been exercised in this manner in all free States, in regard to those whose business is dangerous and destructive to other persons, property, or business. Slaughterhouses, powder mills, or houses for keeping powder, unhealthy manufactories, keeping of wild animals, and even domestic animals, dangerous to persons or property, have always been regarded as under the control of the legislature. It seems incredible how any doubt should have arisen upon the point now before the court. And it would seem it could not, except from some undefined apprehension, which seems to have prevailed to a considerable extent, that a corporation did possess some more exclusive powers and privileges upon the subject of its business, than a natural person in the same business, with the equal power to pursue and accomplish it, which I trust has been sufficiently denied.” 1
1 See, also, to the same effect, Gowen v. Penobscott R. R. Co., 44 Me. 140; Cummings v. Maxwell, 45 Me. 190; Commonwealth v. Intoxi. cating Liquors, 115 Mass. 153; Lord v. Litchfield, 36 Conn. 116 (4 Am Rep. 41); Frankford, etc., Ry. Co. v. Philadelphia, 58 Pa. St. 119; Taggert v.
s 190. Freedom from police control, as a franchise. The claim has often been made that, if it is stipulated in the charter of a corporation that it shall not be subjected to a specific police regulation, such a contract is binding upon all the subsequent legislatures, and they are powerless to prevent an injury to the public by instituting this regulation. In other words, it is claimed, that the State may, by contract irrevocably preclude itself from the exercise of its ordinary police power, it matters not what evil consequences to the public may thereby be prevented. The recognition of this doctrine would, if often acted upon, certainly hamper the government in its effort to protect its citizens from threatening dangers. The dangerous character of the doctrine is particularly noticeable in its application to the police control of corporations. The franchise of the corporation, even if it consists only in the privilege of acting and doing business in a corporate capacity, enables it, as against the private individual, to occupy a vantage ground; its power for harming and controlling the rights and interests of individuals is thereby greatly increased, and the necessity for police control, in order that the rights of individuals may not be exposed to the danger of trespass, is proportionately increased. To recognize in a legislature the power by a contract to tie the hands of all future legislatures, and deprive them of the power to interpose regulations that may become needful as a protection to the public against the aggressions or other unlawful acts of the corporation, would be a specimen of political suicide. It has, therefore, been often decided, in the American courts, Federal and State, that the State cannot barter away, or in any way ourtail its
Western, etc, R. R. Co., 24 Md. 563; Haynes o. Carter, 9 La. Ann. 265; Louisville, etc., R. R. Co. v. Ballard, 2 Met. (Ky.) 165; Blair v. Milwau. kee, etc., R. R. Co., 20 Wis. 254; Reapers' Bank o. Willard, 24 Ill. 433; Bank of Republic v. Hamilton, 21 Ill. 53; Dingman o. People, 51 ml. 277; State v. Herod, 29 Iowa, 123; Gorman v. Pac. R. R. Co., 26 Mo. 441; Ex parte N. E. & S. W. R. R. Co., 37 Ala. 679.
exercise of any of those powers, which are essential attributes of sovereignty, and particularly the police power, by which the actions of individuals are so regulated as not to injure others; and any contract, by which the State undertakes to do this, is void, and does not come within the constitutional protection. In a late case, it has been definitely settled that the power to regulate the actions of individuals and corporations, for the promotion of the public health and the public morals, can never be restricted or suppressed by any contract or agreement of the State. In delivering the opinion of the court, -, J. says: “ The appellant insists that, so far as the act of 1869 partakes of the nature of an irrepealable contract, the legislature exceeded its authority, and it had no power to tie the hands of the legislature in the future from legislating on that subject without being bound by the terms of the statute then enacted. This proposition presents the real point in the case. Let us see clearly what it is. It does not deny the power of that legislature to create a corporation, with power to do the business of landing live stock and providing a place for slaughtering them in the city. It does not deny the power to locate the place where this shall be done exclusively. It does not deny even the power to give an exclusive right, for the time being, to particular persons or to a corporation to provide this stock landing, and to establish this slaughterhouse. But it does deny the power of that legislature to continue this right so that no future legislature, not even the same body, can repeal or modify it, or grant similar privileges to others. It concedes that such a law, so long
1 See Beer Company o. Massachusetts, 97 U. S. 25; Fertilizing Company o. Hyde Park, 97 U. S. 659; Stone o. Mississippi, 101 U. S. 814; Thorpe v. Rutland, etc., R. R. Co., 27 Vt. 140, 149; People v. Commis. sioners, 59 N. Y. 92; Hammett v. Philadelphia, 65 Pa. St. 146 (3 Am. Rep. 615); Hirn o. State, 1 Ohio St. 15; Bradley o. McAtee, 7 Bush, 667 (3 Am. Rep. 309); Indianapolis, etc., R. R. Co. v. Kercheval, 16 Ind. 84; Toledo, etc., R. R. Co. v. Jacksonville, 67 III. 37; Chicago Packing Co. 0. Chicago, 88 Ill. 221.
as it remains on the statute book as the latest expression of the legislative will, is a valid law, and must be obeyed, which is all that was decided by this court in the Slaughterhouse Cases. But it asserts the right of the legislature to repeal such a statute, or to make a new one inconsistent with it, whenever, in the wisdom of such legislature, it is for the good of the public it should be done. Nor does this proposition contravene the established principle that the legislature of a State may make contracts on many subjects which will bind it, and will bind succeeding legislatures for the time the contract has to run, so that its provisions can neither be repealed, nor its obligations impaired. The examples are numerous where this has been done, and the contract upheld. The denial of this power, in the present instance, rests upon the ground that the power of the legislature intended to be suspended is one so indispensable to the public welfare that it cannot be bargained away by contract. It is that well known but undefined power, called the police power.
While we are not prepared to say that the legislature can make valid contracts on no subject embraced in the largest definition of police power, we think that, in regard to two subjects so embraced, it cannot by any contract, limit the exercise of those powers to the prejudice of the general welfare. These are the public health and the public morals. The preservation of those is so necessary to the best interests of the social organization, that a wise policy forbids the legislative body to divest itself of the power to enact laws for the preservation of health and the repression of crime.” 1
On the principle, that the State cannot barter away its police power, it has been held lawful for the State to prohibit all lotteries, and to apply the law to existing lottery companies. So, also, is it possible for the State to pro
1 Butchers' Union Slaughter-house, etc., Co. o. Crescent. City Live Stock, etc., Co., 111 U. S. 746. · Stone v. Mississippi, 101 U. S. 814; State o. Morris, 77 N. C. 512;
hibit the sale and manufacture of liquor, although it has previously issued licenses, authorizing the prosecution of these trades,' and such prohibitory laws may be enforced against existing corporations, whose charters empower them to carry on the prohibited trade.? In like manner, may laws incorporated in the charter for the government of a corporation, in its relation to the public, be repealed or amended. But it has been held in Illinois that, while the State may regulate the interment of the dead, and in the first instance prescribe the localities in which burial will be permitted, yet it is not possible for the legislature to prohibit burial upon lands purchased and laid out as a cemetery at great expense, by a corporation, which has been chartered for that purpose.
Bass v. Nashville, Meigs, 421 (33 Am. Dec. 154); Mississippi Soc. of Arts v. Musgrove, 44 Miss. 820; Moore v. State, 48 Miss. 147 (12 Am. Rep. 367); State v. Woodward, 89 Ind. 110 (46 Am. Rep. 160). See, contra, Broadbent o. Tuscaloosa, etc., Association, 45 Ala. 170; Kellum v. State, 66 Ind. 588.
i Calder v. Kurby, 5 Gray, 597; Commonwealth v. Brennan, 103 Mass. 70; La Croix v. County Comrs., 50 Conn. 321 (47 Am. Rep. 648); Met. Board of Excise v. Barsie, 34 N. Y. 657; Baltimore v. Clunity, 23 Md. 449; Fell v. State, 42 Md. 71 (20 Am. Rep. 83); McKinney v. Salem, 77 Ind. 213. Contra, Adams v. Hatchett, 27 N. H. 289; State o. Phalen, 3 Harr. 441; Boyd v. State, 36 Ala. 329. A license for the prosecution of any trade, which tends to be injurious to the public, may be revoked by a subsequent prohibitory law. State v. Burgoyne, 7 Lea, 173. See, generally, State v. Cook, 24 Minn. 247; Pleuler v. State, 11 Neb. 547. See ante, SS 101-103.
2 Beer Company o. Massachusetts, 91 U. S. 25; Commonwealth o. Intoxicating Liquors, 115 Mass. 153. 8 Bank of Columbia v. Okely, 4 Wheat. 235; Baltimore, etc., R. R.
Nesbit, 10 How. 395; Railroad v. Hecht, 95 U. S. 170; 8. c. 29 Ark. 661; Gowen v. Penobscot R. R. Co., 45 Me. 140; Ex parte N. E. & S. W. R. R. Co., 37 Ala (n. s.) 679; Howard v. Kentucky, etc., Ins. Co., 13 B. Mon. 282.
4 Lakeview o. Rose Hill Cemetery Co., 70 III. 192. But see, contra, Brick Presbyterian Church 0. Mayor, etc., 5 Cowen, 538; Coates v. Mayor, etc., 7 Cow. 585; Kincaid's Appeal, 66 Pa. St. 423; City Council 0. Wentworth Street Baptist Church, 4 Strobh. 310. See, also, ante, $ 122d.