tense of amending the charter of a pneumatic tube company granted before the adoption of the constitution, the effect of the amendment being to so enlarge its powers as to authorize its construction of an underground railway.1 § 28. Of the police power. The prohibition in the federal constitution against the passage of State laws impairing the obligation of contracts has no peculiar application to the rights of artificial persons distinguishing them from natural persons. The vested rights of both are equally sacred; and both are equally subject to legislative control. All that was decided by the Dartmouth College case and the line of cases following it was, that the charter of a private corporation is, or rather, may contain, one or more of those contracts which the State shall not impair. Subject to this and other "constitutional limitations, the rights of all persons, whether natural or artificial, are under such legislative control as the legislature may deem necessary for the general welfare, and it is a fundamental error to suppose there is any difference in this respect between the rights of natural and artificial perThey both stand upon precisely the same footing. While personal liberty is guarantied by the constitution to every citizen, yet, by disregarding the rights of others, one may forfeit not only liberty, but even life itself. So a corpo sons. 1 Astor v. Arcade Ry. Co., (1889) offensive to the senses;' that it is for 113 N. Y. 93. the protection of the public health, morals, and safety, make it necessary that the government should never bargain away this power, or part with it, if it is to properly perform the duties it owes to its citizens." Smith on Private Corporations, 23. 2 Boston Beer Co. v. Massachusetts, 97 U. S. 25, 32. "The general rule is, undoubtedly, as stated above, that the charter of a corporation is a contract, and that a State can not alter or revoke it without the consent of the corporation; but there is a certain class of legislation which applies, the courts have held, to corporations no less than to natural persons, in spite of the constitutional prohibition," ... viz.: "that which the States have passed in the exercise of their police power. The very nature of this power; the fact that it is exercised to regulate unwholesome trades, slaughter-houses, operations 3 Stone v. Mississippi, 101 U. S. 816. In Long's Appeal, 87 Pa. St. 114, the court said that the rights of artificial persons were not more sacred than those of natural persons, and that while the legislature could not impair either, it might regulate both and provide the mode in which they should be enforced. ration by refusing to conform to the laws of its creation, or by so conducting its business affairs as to defeat the objects and purposes of its promoters and the design of the legislature in creating it, may forfeit its right to further carry on its business, and also its existence as an artificial being." The State not only possesses the power, but it is its duty also, to provide for the protection of the lives, health and property of its citizens and to preserve the public order and morals. These are the ends of all government, to which both natural and charter rights are subject, and no legislature can contract against the performance of these obligations of the State to its citizens. Any charter, therefore, by which the legislature may attempt to restrict itself or future legislatures in the exercise of these essential attributes of sovereignty, is to that extent void.3 § 29. Sundry examples of the exercise of the police power. In accordance with the principles explained in the foregoing section, it is held that the legislature of the State 1 Ward v. Farwell, 97 Ill. 593; Smith on Private Corporations, 26, 27. 2 Butchers' Union &c. Co. v. Crescent City &c. Co., 111 U. S. 746; Stone v. Mississippi, 101 U. S. 814; Northwestern Fertilizing Co. v. Hyde Park, 97 U. S. 659; Boston Beer Co. v. Massachusetts, 97 U. S. 25. 66 'Whatever differences of opinion may exist as to the extent and boundaries of the police power, and however difficult it may 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. The legislature can not by any contract divest itself of the power to provide 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 appropriate means as the legislative discretion may devise. That discretion can no more be bargained away than the power itself." Hare's American Constitutional Law, 615; Bartemeyer v. Iowa, 18 Wall. 129; Boyd v. Alabama, 94 U. S. 645. 3 Tiedeman's Limitations of the Police Power, 580. The legislature "can not bargain away the public health or public morals," and authority granted by statute to corporations or individuals to engage in particular private business detrimental to the public, does not constitute a contract preventing the withdrawal of such authority. Boston Beer Co. v. Massachusetts, 97 U. S. 25; Northwestern Fertilizing Co. v. Hyde Park, 97 U. S. 659; Boyd v. Alabama, 94 U. S. 645; Stone v. Mississippi, 101 U. S. 814; Butchers' Union Co. v. Crescent City Co., 111 U. S. 746. can not, by the charter of a lottery company, make a contract against future regulation or suppression of lotteries; nor by the charter of a company for the "purpose of manufacturing malt liquors," contract against future regulations or suppression of traffic in intoxicating liquors; neither is the exercise of the police power with respect to nuisances within the constitutional prohibition. This power belonged to the States prior to their ratification of the federal compact. "They did not surrender it then, and they all have it now." Thus a terprise in which the association is engaged being a lottery. State v. Overton, 10 Nev. 136. 1 Stone v. Mississippi, 101 U. S. 814. Indiana Const. art. xv, § 8, provides that "no lottery shall be authorized, nor shall the sale of lottery tickets be allowed;" and it is held, that this provision is not a mere check upon future legislation, but is prohibitive of lotteries and the sale of lottery tickets. State v. Woodward, 89 Ind. 110. By virtue of this constitutional provision, and of Indiana Rev. St. 1881, § 2077, passed in accordance therewith, the sale of tickets by a lottery corporation chartered by the Territory of Indiana in 1807 is illegal. The obligation of the contract with the corporation is not impaired, for the constitutional and legislative prohibition is within the exercise of the police power, and in the interest of public morals. State v. Woodward, 89 Ind. 110, 8. c. 46 Am. Rep. 160, following Stone v. Mississippi, 101 U. S. 814, and overruling Kellum v. State, 66 Ind. 588. The Nevada Statute of 1881, ch. 116, to aid the Nevada Benevolent Association in providing means for the care and maintenance of the insane in that State, and providing that it shall be lawful for it to give public entertainments, to sell tickets of admission, to distribute among the ticket-holders personal property, etc., and to regulate the distribution by raffle or other schemes of like character, was held unconstitutional, the scheme or en 2 Boston Beer Co. v. Massachusetts, 97 U. S. 25, 32, where it was said, "the plaintiff in error was incorporated for the purpose of manufacturing malt liquors in all their varieties,' it is true; and the right to manufacture undoubtedly, as the plaintiff's counsel contends, included the incidental right to dispose of the liquors manufactured. But although this right or capacity was thus granted in the most unqualified form, it cannot be construed as conferring any greater or more sacred right than any citizen had to manufacture malt liquor, nor as exempting the corporation from any control therein to which a citizen would be subject if the interest of the community should require it." The charter of the Boston Beer Company, however, was granted after the enactment of a general statute subjecting all charters to amendment or repeal. 3 Northwestern Fertilizing Co. v. Hyde Park, 97 U. S. 659, 667. This power "extends to the entire property and business within their local jurisdiction. Both are subject to it in all proper cases. It rests upon the fundamental principle that every one shall so use his own as not to wrong and injure another. To regulate and abate nuisances charter authorizing the manufacture of animal matter into a fertilizer is not a contract guarantying exemption from the exercise of the police power of the State, when the business becomes a nuisance by reason of the growth of population around the locality originally selected.1 Upon a like principle telegraph and telephone companies whose wires have become a nuisance in the streets of cities, have been subjected to the control of the police power.2 And gas companies have been required to make, at their own cost, such changes as public convenience or security requires. In addition to this is one of its ordinary functions." Northwestern Fertilizing Co. v. Hyde Park, 97 U. S. 659, 667. 1 Northwestern Fertilizing Co. v. Hyde Park, 97 U. S. 659. Every right, from absolute ownership in property down to a mere easement, is purchased and holden subject to the restriction that it shall be so exercised as not to injure others. Though at the time it be remote and inoffensive, the purchaser is bound to know at his peril that it may become otherwise by the residence of many people in its vicinity, and that it must yield to by-laws and other regular remedies for the suppression of nuisances. In such cases prescription, whatever the length of time, has no application. Every day's continuance is a new offense, and it is no justification that the party complaining came voluntarily within its reach. Pure air and the comfortable enjoyment of property are as much rights belonging to it as the right of possession and occupancy. If population, where there was none before, approaches a nuisance, it is the duty of those liable at once to put an end to it." Coates v. The Mayor of New York, 7 Cowen, 585; Brick Presbyterian Church v. Mayor of New York, 5 Cowen, 538, 542; Hare's American Constitutional 617. Law, 2 Although telegraph lines are instruments of commerce, a city has the right to determine how, in what manner, and upon what condition a telegraph company shall enter the city and pass through it for the purpose of communication, or allowing the citizens of the country to communicate by telegraph one with another. But where a telegraph company erects poles and strings wires within a city, under authority of an ordinance of the city council, which provides that such authority or privilege shall expire on and after a certain day named therein, the mayor of such city has no right of his own motion, and without any express direction from the city council and without notice to the company, to cut and remove the wires after the expiration of the time limited in the ordinance, and he will be liable as a trespasser for so doing; but an injunction will not be granted to restrain the city authorities from interfering with the company in replacing the wires, because this would enable it to do what it has no legal right to do under the ordinance. Mutual Union Telegraph Co. v. Chicago, 16 Fed. Rep. 309. 3 New York Acts 1848, ch. 37, § 18, authorizing them to lay their pipes through city streets, does not imply the contrary. Such expenses can subjection to the police power, corporations are liable also in damages to private persons for injuries in the nature of private nuisance, although resulting directly from the exercise of powers and privileges granted by the State.1 § 30. Dedication to a public use - Munn v. Illinois.-The principle that there is no peculiar sanctity attaching to the rights and property of artificial persons as distinguished from natural persons, that both are equally protected by the constitution and both equally subject to legislative control, finds a further application in the regulation of property dedicated to a public use. Whenever any person pursues a public calling and sustains such relations to the public that the people must of necessity deal with him, and are under a moral duress to submit to his terms if he is unrestrained by law, then in order to prevent extortion and an abuse of his position, the price he may charge for his services may be regulated by law." When private property is "affected with a public interest it ceases to be juris privati only." This was said by Lord Chief Justice Hale more than three hundred years ago in his treatise De Portibus Maris, and has been accepted without objection as an essential element in the law of property ever since. Property does become clothed with a public interest when used in a manner to make it of public consequence and affect the community at large. "It has been customary in England from time immemorial, and in this country from its first colonization, to regulate ferries, common carriers, hackmen, bakers, millers, wharfingers, innkeepers, et cetera, and in so doing to fix a maximum of charge to be made for services rendered, accommodations furnished and articles sold." "To this day statutes are to be found in many of the States upon some or not be included in an assessment for regulating and grading a street. In re Deering, 93 N. Y. 361. 1 Baltimore & P. R. Co. v. Fifth Baptist Church, 108 U. S. 317. 2 Commonwealth v. Duane, 98 Mass. 1; State v. Perry, 5 Jones, (N. C.) L. 252; State v. Nixon, 5 Jones, (N. C.) L. 258; Bac. Abr. tit. "Carriers" D.; Murray's Lessee v. Hoboken L. & I. Co., 18 How. 272; Kirkham v. Shawcrass, 6 T. R. 17; 2 Peake N. P. C. 185; 10 M. & W. 415; Ogden v. Saunders, 12 Wheat. 259; Mills v. County Commissioners, 4 Ill. 53; Trustees of Schools v. Tatman, 13 Ill. 37. 31 Harg. Law Tracts, 78. Munn v. Illinois, (1876) 94 U. S 113, 126. 5 Munn v. Illinois, 94 U. S. 113, 125. |