degree in fault, but his interest must yield to that [* 595] "necessity" which "knows no law." The establishment of limits within the denser portions of cities and villages, within which buildings constructed of inflammable materials shall not be erected or repaired, may also, in some cases, be equivalent to a destruction of private property; but regulations for this purpose have been sustained notwithstanding this result. Wharf lines may also be established for the general good, even though they prevent the owners of water-fronts from building out on that which constitutes private property.2 And, whenever the legislature deem it necessary to the protection of a harbor to forbid the removal of stones, gravel, or sand from the beach, they may establish regulations to that effect under penalties, and make them applicable to the owners of the soil equally with other persons. Such regulations are only "a just restraint of an injurious use of property, which the legislature have authority" to impose.3 So a particular use of property may sometimes be forbidden, where, by a change of circumstances, and without the fault of the owner, that which was once lawful, proper, and unobjectionable has now become a public nuisance, endangering the public health or the public safety. Mill-dams are sometimes destroyed upon this ground; and churchyards which prove in the advance of urban population, to be detrimental to the public health, or in danger of becoming so, are liable to be closed against further use for cemetery purposes. The keeping of gunpowder in unsafe quantities in cities or villages; the sale of poisonous drugs, unless labelled; allowing unmuzzled dogs to be at large when danger of hydrophobia is apprehended; 7 or the keeping for sale unwholesome Respublica v. Duquet, 2 Yeates, 493; Wadleigh v. Gilman, 3 Fairf. 403; Brady v. Northwestern Ins. Co. 11 Mich. 425; Vanderbilt v. Adams, 7 Cow. 352, per Woodworth, J. 2 Commonwealth v. Alger, 7 Cush. 53. See Hart v. Mayor, &c., of Albany, 9 Wend. 571. 3 Commonwealth v. Tewksbury, 11 Met. 55. Miller v. Craig, 3 Stockt. 175. And offensive manufactures may be stopped. Coe v. Schultz, 47 Barb. 64. See League v. Journeay, 26 Texas, 172. Brick Presbyterian Church v. Mayor, &c., of New York, 5 Cow. 538; Coates v. Mayor, &c., of New York, 7 Cow. 604. Foote v. Fire Department, 5 Hill, 99. And see License Cases, 5 How. 589, per McLean, J.; Fisher v. McGirr, 1 Gray, 27, per Shaw, Ch. J. 7 Morey v. Brown, 42 N. H. 373. Dogs, which are animals in which the owner has no absolute property, are subject to such regulations as the legislature [* 596] * provisions, or other deleterious substances, are all subject to be forbidden under this power. And, generally, it may be said that each State has complete authority to provide for the abatement of nuisances, whether they exist by the fault of individuals or not.1 The preservation of the public morals is peculiarly subject to legislative supervision, which may forbid the keeping, exhibition, or sale of indecent books or pictures, and cause their destruction if seized; or prohibit or regulate the places of amusement that may be resorted to for the purpose of gaming; 2 or forbid altogether the keeping of implements of gaming for unlawful games; or prevent the keeping and exhibition of stallions in public places. And the power to provide for the compulsory observance of the first day of the week is also to be referred to the same authority.* So the markets are regulated, and particular articles allowed to be sold in particular places only, or after license; 5 weights and measures are established, and dealers compelled to conform to the fixed standards under penalty, and the like. These instances are may prescribe, and it is not unconstitutional to authorize their destruction, without previous adjudication, when found at large without being licensed and collared according to the statutory regulation. Blair v. Forehand, 100 Mass. 136. And see Carter v. Dow, 16 Wis. 298; Morey v. Brown, supra. As a measure of internal police, the State has the power to encourage the keeping of sheep, and to discourage the keeping of dogs, by imposing a penalty upon the owner of a dog for keeping the same. Mitchell v. Williams, 27 Ind. 62. 1 See Miller v. Craig, 3 Stockt. 175; Weeks v. Milwaukee, 10 Wis. 242. But under this power it would not be competent for a city to tax a lot owner for the expense of abating a nuisance on his lot which the city itself had created. Weeks v. Milwaukee, ib. See Barring v. Commonwealth, 2 Duv. 95. 2 Tanner v. Trustees of Albion, 5 Hill, 121; Commonwealth v. Colton, 8 Gray, 488. Nolin v. Mayor of Franklin, 4 Yerg. 163. A city may forbid the keeping of swine within its densely settled portions. Commonwealth v. Patch, 97 Mass. 221. Specht v. Commonwealth, 8 Penn. St. 312; State v. Ambs, 20 Mo. 214; Adams v. Hamel, 2 Doug. (Mich.) 73; Vogelsong v. State, 9 Ind. 112; Shover v. State, 5 Eng. 259; Bloom v. Richards, 2 Ohio, N. s. 387; Lindenmuller v. People, 33 Barb. 548; Ex parte Andrews, 18 Cal. 678; Ex parte Bird, 19 Cal. 130. 5 Nightingale's Case, 11 Pick. 168; Buffalo v. Webster, 10 Wend. 99; Bush v. Seabury, 8 Johns. 418; Ash v. People, 11 Mich. 347; State v. Leiber, 11 Iowa, 407; Le Claire v. Davenport, 13 Iowa, 210; White v. Kent, 11 Ohio, N. 8. 550. Guillotte v. New Orleans, 12 La. An. 432; Page v. Fazackerly, 36 Barb. more than sufficient to illustrate the pervading nature of this power, and we need not weary the reader with further enumeration. Many of them have been previously referred to under the head of municipal by-laws. Whether the prohibited act or omission shall be made a criminal offence, punishable under the general laws, or subject to punishment under municipal by-laws, or, on the other hand, the party be deprived of all remedy for any right which, but for the regulation, he might have had against other persons, are [* 597] questions which the legislature must decide. It is sufficient for us to have pointed out that, in addition to the power to punish misdemeanors and felonies, the State has also the authority to make extensive and varied regulations as to the time, mode, and circumstances in and under which parties shall assert, enjoy, or exercise their rights, without coming in conflict with any of those constitutional principles which are established for the protection of private rights or private property. 392; Mayor, &c., of Mobile v. Yuille, 3 Ala. 139. pure water mixed may be made a penal offence. 11 Allen, 264. 42 The sale of pure milk and [ 657 ] [* 598] CHAPTER XVII. THE EXPRESSION OF THE POPULAR WILL. ALTHOUGH by their constitutions the people have delegated the exercise of sovereign powers to the several departments, they have not thereby divested themselves of the sovereignty. The governments which they create, they retain in their own hands a power to control so far as they have thought needful, and the three departments are responsible to and subject to be ordered, directed, changed, or abolished by them. But this control and direction must be exercised in the legitimate mode previously agreed upon. The voice of the people can only be of legal force when expressed in the times and under the conditions which they themselves have prescribed and pointed out by the constitution; and if any attempt should be made by any portion of the people, however large, to interfere with the regular working of the agencies of government at any other time or in any other mode than as allowed by existing law, either constitutional or statutory, it would be revolutionary in character, and must be resisted and repressed by the officers who for the time being represent legitimate government.1 The authority of the people is exercised through elections, by means of which they select and appoint the legislative, executive, and judicial officers, to whom shall be intrusted the exercise of the powers of government. In some cases also they pass upon other questions specially submitted to them, and adopt or reject a measure according as a majority vote for or against it. It is obvi "The maxim which lies at the foundation of our government is, that all political power originates with the people. But since the organization of government it cannot be claimed that either the legislative, executive, or judicial powers, either wholly or in part, can be exercised by them. By the institution of government, the people surrender the exercise of all these sovereign functions of government to agents chosen by themselves, who at least theoretically represent the supreme will of their constituents. Thus all power possessed by the people themselves is given and centred in their chosen representatives." Davis, Ch. J., in Gibson v. Mason, 5 Nev. 291. ously impossible that any considerable people should in general meeting consider, mature, and adopt their own laws; but when a law has been perfected, or when it is deemed desirable to take the expression of public sentiment upon any one question, the ordinary machinery of elections is adequate to the end, and the expression is easily and without confusion obtained by submitting the law for an affirmative or negative vote. In this manner are constitutions and amendments thereof adopted or rejected, and matters of local importance in many cases, like the location of a county seat, the contracting of a local debt, the erection of a public building, the acceptance of a municipal charter, and the like, are passed upon and determined by the people whom they concern, * under constitutional or statutory provisions which re- [* 599] quire or permit it. The Right to Participate in Elections. In another place we have said that though the sovereignty is in the people, as a practical fact it resides in those persons who by the constitution of the State are permitted to exercise the elective franchise. Each State establishes its own regulations on this subject; subject only to the fifteenth amendment to the national Constitution, which forbids that the right of citizens to vote shall be denied or abridged on account of race, color, or previous condition of servitude. Participation in the elective franchise is a privilege rather than a right, and it is granted or denied on grounds of general policy; the prevailing view being that it should be as general as possible consistent with the public safety. Aliens are generally excluded, though in some States they are allowed to vote after residence for a specified period, provided they have declared their intention to become citizens in the manner prescribed by law. The fifteeenth amendment, it will be seen, does not forbid denying the franchise to citizens except upon certain specified grounds, and it is matter of public history that its purpose was to prevent discriminations in this regard as against the newly enfranchised slaves. Minors, who equally with adult persons are citizens, are still excluded, as are also women, and sometimes persons who have been convicted of infamous crimes. In some States laws will be found in existence which, either generally or in 1 Ante, p. 29. |