erty devotes it to a use in which the public have an interest he in effect grants to the public an interest in such use, and must to the extent of that interest submit to be controlled by the public for the common good as long as he maintains the use. It is immaterial, as respects the right to erect and enforce police regulations, that the corporation's charter is by its terms unalterable for a number of years.2 This principle has frequently been applied in statutes requiring railroad companies to erect fences and cattle yards and signboards at crossings for the protection of stock and the travelling public.3 § 1073. Legislative powers extend indiscriminately to individuals, copartnerships and corporations.-This sovereign jus disponendi attaches to the person and property of all who enjoy the benefits of governmental protection individually and collectively. With respect to all constitutional provisions natural persons and corporations occupy and are entitled to similar treatment. Laws 1 Munn v. Illinois, 94 U. S. 113. 2 Carver v. Detroit & S. P. R. Co., 69 Mich. 616; 25 N. W. 183. An act requiring electric wires to be laid underground is not unconstitutional as violative of a grant permitting corporations to run electric wires in and through the streets of cities. People v. Squire, 107 N. Y. 593; 14 N. E. 820. See also Sioux City St. Ry. Co. v. Sioux City, 78 Ia. 367; U. S. Illuminating Co. v. Grant, 55 Hun, 222. 3 See Mo. Pac. R. Co. v. Harrelson (Kan.), 24 P. 465; but where a person had purchased land for a residence near a public highway between which and his residence there was a railroad constructed before his purchase and operated for 40 years, it was held not within the police power to compel the company to pro vide and maintain at its own expense a residence crossing, for the use and benefit of such person. People v. Detroit, G. H. & M. R. Co., 79 Mich. 471; 44 N. W. 934. And it was held that an act providing that at railroad crossings, the railroads crossing there should erect and maintain suitable depots and waitingrooms was a legitimate exercise of police power and constitutional. State v. K. C. Ft. S. & G. R. Co., 32 F. 722. Though the charter of a street railway company require it to pave inside of its rails a subsequent municipal ordinance may require it to pave one foot outside of its rails. Sioux City St. Ry. Co. v. Sioux City (Ia.), 78 Ia. 367; 43 N. W. 224. valid as to one are valid as to the other; likewise a constitutional provision when applied to the contractual and possessory rights of a corporation would be adjudged void and inoperative in the case of an individual occupying the same situation and relation. When an adjudication is had upon a constitutional question involving the rights and duties of an individual engaged in a business of a public nature, the principle declared, if sound, governs and is equally applicable to a collective body of individuals operating under a common name whether their contract of association be found in a charter or articles of copartnership. 1074. The legislature cannot bind the state by granting away the power to make police regulations.-One of the principal means by which the state performs its duty with respect to these inalienable rights, expressly recognized in both national and state constitutions, is by the enactment of police regulations, though the dividing line between these and other kinds of legislative enactments has never been established, and from the nature of the case cannot be, So many changes are constantly taking place in the industrial, social and commercial conditions of the people, that no tribunal or authority is qualified to declare just what will be necessary at any future date, however near, to secure the peace and good order of the community by statutory regulations of individual conduct, civil or moral. It is a prime object and aim of government to "prescribe the manner of using one's property and pursuing one's occupation, so as not to trespass on the property or rights of others; and as such is a power whose necessity and use grow with the increasing complexities of our civilization, and the increasing diversities in the industries and modes of life, the sphere, therefore, of its operations is ever widening. Every new use to which the forces of nature are put calls for a new interference of this power, that such use may not operate to the injury of others." It has accordingly become a well established doctrine that the determination of what laws are necessary for the purpose must be left to the legislative body exercising, for the time being, the function of providing the necessary guarantees in the form of law to meet the peculiar exigencies of the body politic as they arise. And each legislature occupies for this purpose the relation to the state which an agent does to his principal. As a corollary to this, it follows that this is the duty belonging to the state, and not to the legislature, except as the legislature is the representative of the state; and therefore one legislature cannot grant away this power by contract, treaty or grant so as to bind future legislatures." § 1075. Munn v. Illinois. This self-preservative principle derived from the common law has in a number of cases been declared to be part and parcel of the body of our laws, unaltered by any constitutional provision. 1 Kansas Pacific R. R. Co. v. Mower, 16 Kan. 573. 2 A leading authority upon this question is Stone v. Mississippi taken to the supreme court of the United States from the Mississippi state court on appeal. Stone and his associates had been granted by the legislature of that state in 1867 a charter providing that they should enjoy the privilege of conducting a lottery in the name of the “Mississippi Agricultural, Educational and Manufacturing Aid Society" in consideration of annual payments to be made to the state. The new constitution of the state adopted in 1878 declared that “the legislature shall never authorize any lottery; nor shall the sale of lottery tickets be allowed; nor shall any lottery heretofore authorized be permitted to be drawn or tickets therein be sold." In 1870 the legislature passed an act entitled: "An act enforcing the provisions of the constitution of the state of Mississippi," prohibiting all kinds of lotteries within said state and making it unlawful to conduct one in this state. In 1874 the attorney-general of the state instituted and successfully prosecuted a proceeding by quo warranto against the appellants, to revoke and forfeit their charter, on the ground that they were conducting a lottery in violation of the above constitutional provision and the legislative provision enacted in pursuance thereof. In delivering the opinion affirming the decision of the state court WAITE, C. An extreme application of it is found in Munn v. Illinois, where it was held that the state of Illinois could prescribe maximum rates of storage in warehouses used for storage of grain in bulk by various owners, in such manner that the identity of different lots of parcels could not be preserved, on the ground that the exercise of such state regulation was necessary to the safety and protection of the public, and came within the definition of a police regulation.1 J., said: “All agree that the legislature cannot bargain away the police power of a state. Irrevocable grants of property and franchises may be made if they do not impair the supreme authority to make laws for the right government of the state; but no legislature can curtail the power of its successors to make such laws as they may deem proper in matters of police. Many attempts have been made in this court and elsewhere to define the police power, but never with entire success. It is always easier to determine whether a particular case comes within the general scope of the power than to give an abstract definition of the power itself, which will be in all respects accurate. No one denies, however, that it extends to all matters affecting the public health or the public morals. The question is therefore directly presented, whether, in view of these facts, the legislature of a state can, by the charter of a lottery company, defeat the will of the people, authoritatively expressed, in relation to the further continuance of such business in their midst. We think it cannot. No legislature can bargain away the public health or the public morals. The people themselves cannot do it, much less their servants. The supervision of both these subjects of governmental power is continuing in its nature, and they are to be dealt with as the special exigencies of the moment may require. Government is organized with a view to their preservation, and cannot divest itself of the power to provide for them. For this purpose the largest legislative discretion is allowed, and the discretion cannot be parted with any more than the power itself." Stone v. Mississippi, 101 U. S. 814-19. See also Beer Co. v. Mass achusetts, 97 U. S. 645; Regents of University v. Williams, 9 De G. & J. 365; State v. Morris, 77 N. Car. 512; Dingham v. People, 51 Ill. 277. For discussion upon limitations of the power see State v. Woodward, 89 Ind. 110; New Orleans Gas Co. v. Louisiana Light Co., 115 U. S. 650. 1 94 U. S 113. In this case WAITE, C. J., in delivering the opinion of the court, said: "In England from time immemorial, and in this country from its first colonization, it has been customary to regulate ferriers, common carriers, hackmen, bakers, millers, wharfingers, innkeepers, etc., and in so doing to fix a maximum charge to be made for services rendered, accommodations furnished and articles sold. Looking to the common law, whence came the right which the constitution protects, we find that 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 two hundred years ago. . . . and has been accepted without objection as an essential element in the law of property ever since. Property becomes clothed 1076. The power not to be abused.-There is a limit, however, to the right of interference by the state with private rights and vested interests under the pretext of exercising police supervision which, though difficult to define with certainty, is recognized in numerous cases. If this were not so, the plea of public safety, when urged in justification of the citizen's rights, would often be a wicked and violent perversion of language under which to mask oppression and wrong.1 It is the province of the legislature to determine when the necessity exists for exercising this power; but the subjects upon which it may operate are determined by the judicial department. It is the province of courts with a public interest when used in a manner to make it of public consequence and to affect the community at large. When, therefore, one devotes his property to a use in which the public has an interest, he, in effect,'grants to the public an interest in that use, and must submit to be controlled by the public for the common good to the extent of the interest he thus creates. He may withdraw his grant by discontinuing the use; but so long as he maintains the use, he must submit to the control." See also People v. Budd, 117 N. Y. 1; 22 N. E. 670. 1 In Lake View v. Rose Hill Cem. Co., 70 Ill. 191, a cemetery corporation owning a tract of land outside of a town and remote from residences was in effect prohibited by an ordinance enacted by the authorities of the town of Lake View, and subsequently approved by the legislature, from using its grounds for purposes of interment except within prescribed limits, as by its charter previously granted it was authorized to do. In passing upon the question of the validity of the ordinance and legislative sanction, the court said: "Reference is made to the reserved power of the state, denominated 'police power,' as affording the requisite authority. It has been said, the source of this extraordinary power may be readily recognized as flowing from the people in their organized capacity, inalienable in its character, but that it is difficult to define its boundaries or limit its operations. We are unwilling, however, to concede the existence of an indefinable power, superior to the constitution, that may be revoked whenever the legislature may deem the public exigency may require it, by which a party may be capriciously deprived of his property or its use, without compensation, whether such property consists of franchises or tangible forms of property. The constitution expressly provides the right of property shall remain inviolate, and, upon all enumerated subjects, it must constitute a limitation on the exercise of all power, no matter what its nature may be, nor whence its origin. If such was not the case, there could be no constitutional security for private rights, and the citizen would hold his property corporeal and incorporeal by a most uncertain tenure." |