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and to the preservation of good order and public morals. The Legislature cannot 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 be no more bargained away than the power itself.” Id., pp. 32, 33.
In Boyd v. Alabama, 94 U. S. 645, at the conclusion of the opinion the Court say: “We are not prepared to admit that it is competent for one Legislature, by any contract with an individual, to restrain the power of a subsequent Legislature to legislate for the public welfare, and to that end to suppress any and all practices tending to corrupt the public morals.” Id., p. 650.
In the Delaware Railroad Tax Case, 18 Wall. 226, while it was held on the principle of stare decisis, that a State might enter into a valid contract exempting property from taxation it was assumed as settled law that a State could not make a contract whereby it surrendered its police power, or power of eminent domain. In the opinion of the court, delivered by Justice Field, it is said :
“If the point were not already adjudged, it would admit of grave consideration, whether the Legislature of a State can surrender this power [of taxation), and make its action in this respect binding upon its successors, any more than it can surrender its police power, or its right of eminent domain."
In some of the earlier cases in the State courts, wherein the proposition was advanced that the police power of the State could not be granted away by contract, the subject was approached with much hesitation and apparent timidity.
The fact that the final determination of the question, as to whether particular laws impaired the obligation of contracts, devolved upon the Supreme Court of the United States, 10 doubt had its influence in causing the State courts to proceed with great caution in the enunciatiou of this principle. So
we find, occasionally, that the earlier declarations of the law upon this subject are hedged about with qualifications, in some respects utterly incompatible with the principle that the police power of the government cannot be granted away by contract. We find these qualifications summed up in a single paragraph in Cooley's Constitutional Limitations, p. 577.
“ The limit to the exercise of the police powers in these cases must be this: the regulations must have reference to the comfort, safety, or welfare of society; they must not be in conflict with any of the provisions of the charter; and they must not, under pretense of regulation, take from the corporation any of the essential rights and privileges which the charter confers. In short, they must be police regulations in fact, and not amendments of the charter in curtailment of the corporate franchise."
The unqualified statement that the police regulations "must not be in conflict with any of the provisions of the charter, is clearly not the law. If the police regulations “must not be in conflict with any of the provisions of the charter," in any instance, what becomes of the doctrine that the power of the State to enact police regulations or laws, cannot be granted away, or restrained by contract ? Suppose the charter happens to contain something which in fact is in conflict with a police regulation subsequently enacted; which must give way—this clause of the charter, or the police regulation ?
In Stone v. Mississippi, supra, there was a clear and unquestionable conflict between the provisions of the charter, which professed to give the right to maintain the lottery for a term of years, and the police regulation or law, subsequently enacted, which forbade it. The court gave effect to the police regulation, and held that it did not impair any valid contract contained in the charter, for the reason that “the power of governing is a trust committed by the people to the government, no part of which can be parted with by contract."
In cases of this character, the only debatable question which can properly arise is whether the subsequent enactment of a law which comes in conflict with the provisions of the charter, is in reality an exercise of the police powers of the State within the purview of these decisions. (Butchers' Union Co. v. Crescent City Co., 111 U. S. 746.) If this point is ruled in the affirmative, the law, although subsequently enacted, must prevail over the provisions of the charter, because there can be no valid contract restraining the State from the exercise of this power. At the time of the preparation of Judge Cooley's work upon Constitutional Limitations from which we have made the above extract, the principles involved had not been directly passed upon in the Supreme Court of the United States. If that learned jurist was writing upon this subject to-day, he would not be compelled merely to say :' “It has also been intimated in a very able opinion, that the police power of the State could not be alienated, even by express grant.
It would seem, therefore, to be the prevailing opinion, and based upon sound reason, that the State could not barter away, or in any manner abridge or weaken any of those essential powers which are inherent in all governments, and the existence of which in full vigor is important to the well-being of organized society.”
Cooley's Const. Lim., pp. 282–3. That which at the time this author wrote had been inti. mated to be the law, and upon such authorities as then existed seemed to be the prevailing opinion, based upon sound reason, has since been authoritatively declared to be the law by the highest court competent to speak upon the question. As a principle of constitutional law, it is now settled that a State Legislature cannot bind the State by contract not to exercise police powers, so far, at least, as the same may be necessary for the protection of the public safety, public health or public morals. It necessarily follows that such power may be exercised, even though it renders nugatory express
provisions of prior acts of incorporation which come in conflict with the subsequently enacted police regulations.
Under our polity and system of government all grants of corporate franchises are made by the legislative department of the government under the form of legislative enactments. Such acts of incorporation not unfrequently contain provisions which in their essence and nature are mere laws and not contracts.
To mark and emphasize this fact, as well as distinction, in Stone v. Mississippi, supra, the court found it necessary to say : “In this connection, however, it is to be kept in mind that it is not the charter which is protected, but only any contrart the charter may contain. If there is no contract, there is nothing in the grant on which the Constitution can act. Consequently the first inquiry in this class of cases always is, whether a contract has in fact been entered into, and, if so, what its obligations are.”
It is not true, therefore, that every provision contained in a legislative act of incorporation is invested with the force and efficacy of an obligatory contract, and thus brought within the protection of the Federal Constitution.
Such charters or acts of incorporation may, and often do, contain provisions which only have force and effect as laws, and are therefore subject to amendment or repeal.
The practice has been quite common, without accurate discrimination, to designate every charter or act of incorporation a contract. This language may have been strictly proper when applied to charters creating corporations granted by the British Crown. The King, acting alone, and without the concurrence of Parliament, possessed no legislative authority. Charters granted by him conferring corporate franchises were valid so far, and so far only, as they constituted contracts. If they contained provisions not properly the subject of contracts, such provisions were void, and conferred no rights. Thus, while the King had power to grant the franchise to maintain a fair or public market, and to authorize the collec
tion of tolls, yet the tolls so authorized must be reasonable and not excessive, otherwise the grant as to tolls would be void. Lord Coke states the law thus:
“Every one that hath a faire or market, ought to have it by graunt or prescription ; if the King graunt to a man a faire or market, and graunt no toll, the patentee shall have no toll, for toll being a matter of private for the benefit of the lord, is not incident to, a faire or market so graunted without a special graunt, as it was adjudged in the case of Northampton ; for such a faire or market is accounted a free faire or market; and there it was also resolved, that after such a graunt made the King cannot graunt a toll to such a free faire or market without quid pro quo, some proportionable benefit to the subject. Lastly, it was there resolved that if the toll graunted with the faire or market bee outragious or unreasonable, the graunt of the toll is void, and that the same is a free market or faire,”
Coke's Institutes, Part 2, Vol. 4, p. 220. Tolls which “bee outragious or unreasonable" are thus defined by the same authority: “Outragious. That is either where a reasonable toll is due, and excessive toll is taken, or where no toll at all is due, and yet toll is unjustly usurped, for it is an outrage to doe such a common injury and wrong.” Id. p. 219.
“Also, if the King, at the time he grants a fair or market, grants a toll, and the same is outrageous and excessive, the grant of the toll is void, and the same becomes a free fair or market."
4 Bacon's Abridgment, p. 158. “The King cannot appoint a burthensome toll.” If the toll specified in the grant or charter is excessive, the grant is void.
Heddy v. Welhouse, Cro. Eliz. 558.
Wright v. Bruister, 24 E. C. L. 60. The same principle is recognized and enforced in Sir Matthew Hale's Treatise De Portibus Maris, as to tolls or duties