growing out of the nature of well-ordered civil society, that every holder of property, however absolute and unqualified may be his title, holds it under the implied liability that his use of it shall not be injurious to the equal enjoyment of others having an equal right to the enjoyment of their property, nor injurious to the rights of the community. All property in this Commonwealth is . . . . held subject to those general regulations which are necessary to the common good and general welfare. Rights of property, like all other social and conventional rights, are subject to such reasonable limitations in their enjoyment as shall prevent them from being injurious, and to such reasonable restraints and regulations established by law as the legislature, under the governing and controlling power vested in them by the constitution may think necessary and expedient. This is very different from the right of eminent domain,

the right of a government to take and appropriate private property whenever the public exigency requires it, which can be done only on condition of providing a reasonable compensation therefor. The power we allude to is rather the police power; the power vested in the legislature by the constitution to make, ordain, and establish all manner of wholesome and reasonable laws, statutes, and ordinances, either with penalties or without, not repugnant to the constitution, as they shall judge to be for the good and welfare of the Commonwealth, and of the subjects of the same. It is much easier to perceive and realize the existence and sources of this power than to mark its boundaries, or prescribe limits to its exercise." 1

"This police power of the State," says another eminent judge, "extends to the protection of the lives, limbs, health, comfort, and quiet of all persons, and the protection of all property within the State. According to the maxim, Sic utere tuo ut alienum non lædas, which being of universal application, it must, of course, be within the range of legislative action to define the mode and manner in which every one may so use his own as not to injure others." And again: [By this] "general police power of the State, persons and property are subjected to all kinds of restraints and burdens, in order to secure the general comfort, health, and prosperity of the

1 Commonwealth v. Alger, 7 Cush. 84. See also Commonwealth v. Tewksbury, 11 Met. 57; Hart v. Mayor, &c. of Albany, 9 Wend. 571; New Albany & Salem R. R. Co. v. Tilton, 12 Ind. 3; Indianapolis & Cincinnati R. R. Co. v. Kercheval, 16 Ind. 84; Ohio & Mississippi R. R. Co. v. McClelland, 25 Ill. 140; People v. Draper, 25 Barb. 374; Baltimore v. State, 15 Md. 390.

State; of the perfect right in the legislature to do which, no question ever was, or, upon acknowledged general principles, ever can be made, so far as natural persons are concerned." 1

One of the most important questions respecting this power, in a constitutional point of view, concerns those cases over which jurisdiction is vested in the national government, whereby, it is sometimes claimed, that the police jurisdiction of the State is necessarily excluded, as otherwise the State would be found operating within the sphere of the national powers, and establishing regulations which would either abridge the rights which the national Constitution undertakes to render inviolable, or burden the privileges which, being conferred by law of Congress, are not properly subject to control by any other authority. It is plain, however, from a statement of the theory upon which the police power rests, that any proper exercise of it by the State cannot come in conflict with the provisions of the Constitution of the United States. If the power only extends to a regulation of rights with a view to the due protection and enjoyment of all, without depriving any one of that which is justly and properly his own, then its possession and exercise by the State, in respect to the persons and property of its citizens, cannot well afford a basis for an appeal to the protection of the national authorities.

This subject has often been considered in its bearings upon the clause of the Constitution of the United States which forbids the States passing any laws violating the obligation of contracts; and it has been invariably held that this clause does not so far remove from State control the rights and properties which depend for their existence or enforcement upon contracts, as to relieve them from the operation of such general regulations for the good government of the State and the protection of the rights of individuals as may be deemed important. All contracts and all rights, it is held, are subject to this power; and regulations which affect them may not only be established by the State, but must also be subject to change from time to time, with reference to the general well-being of the community, as circumstances change, or as experience demontrates the necessity.2

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1 Redfield, Ch. J., in Thorpe v. Rutland & Burlington R. R. Co., 27 Vt. 149. See the maxim, "Sic utere," &c., Enjoy your own property in such manner as not to injure that of another," — in Broom's Legal Maxims (5th Am. ed.), p. 327.

In the case of Thorpe v. Rutland & Burlington R. R. Co., 27 Vt. 140, a

Perhaps the most striking illustrations of the principle here stated will be found among the judicial decisions which have held question arose under a provision in the Vermont General Railroad Law of 1849, which required each railroad corporation to erect and maintain fences on the line of their road, and also cattle guards at all farm and road crossings, suitable and sufficient to prevent cattle and other animals from getting upon the railroad, and which made the corporation and its agents liable for all damages which should be done by their agents or engines to cattle, horses, or other animals thereon, if occasioned by the want of such fences and cattle guards. It was not disputed that this provision would be valid as to such corporations as might be afterwards created within the State; but in respect to those previously in existence, and whose charters contained no such provision, it was claimed that this legislation was inoperative, since otherwise its effect would be to modify, and to that extent to violate, the obligation of the charter-contract. The case, say the court, "resolves itself into the narrow question of the right of the legislature, by general statute, to require all railways, whether now in operation or hereafter to be chartered or built, to fence their roads upon both sides, and provide sufficient cattle guards at all farm and road crossings, under penalty of paying all damages caused by their neglect to comply with such requirements. We think the power of the legislature to control existing railways in this respect may be found in the general control over the police of the country, which resides in the law-making power in all free States, and which is, by the fifth article of the bill of rights of this State, expressly declared to reside perpetually and inalienably in the legislature; which is, perhaps, no more than the enunciation of a general principle applicable to all free States, and which cannot therefore be violated so as to deprive the legislature of the power, even by express grant to any mere public or private corporation. And when the regulation of the police of a city or town, by general ordinances, is given to such towns and cities, and the regulation of their own internal police is given to railroads to be carried into effect by their by-laws and other regulations, it is of course always, in all such cases, subject to the superior control of the legislature. That is a responsibility which legislatures cannot divest themselves of if they would.

"So far as railroads are concerned, this police power which resides primarily and ultimately in the legislature is twofold: 1. The police of the roads, which, in the absence of legislative control, the corporations themselves exercise over their operatives, and to some extent over all who do business with them, or come upon their grounds, through their general statutes, and by their officers. We apprehend there can be no manner of doubt that the legislature may, if they deem the public good requires it, of which they are to judge, and in all doubtful cases their judgment is final, require the several railroads in the State to establish and maintain the same kind of police which is now observed upon some of the more important roads in the country for their own security, or even such a police as is found upon the English railways, and those upon the Continent of Europe. No one ever questioned the right of the Connecticut legislature to require trains upon all of their railroads to come to a stand before passing draws in bridges; or of the Massachusetts legislature to require the same thing before passing another railroad. And by parity of reasoning may all railways be required so to conduct

that the rights insured to private corporations by their charters, and the manner of their exercise, are subject to such new regulations as from time to time may be made by the State with a view to the public protection, health, and safety, and to properly guard the rights of other individuals and corporations. Although these charters are to be regarded as contracts, and the rights assured by them are inviolable, it does not follow that these rights are at once, by force of the charter-contract, removed from the sphere of State regulation, and that the charter implies an undertaking, on the part of the State, that in the same way in which their exercise is themselves as to other persons, natural or corporate, as not unreasonably to injure them or their property. And if the business of railways is specially dangerous, they may be required to bear the expense of erecting such safeguards as will render it ordinarily safe to others, as is often required of natural persons under such circumstances.

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"There would be no end of illustrations upon this subject. It may be extended to the supervision of the track, tending switches, running upon the time of other trains, running a road with a single track, using improper rails, not using proper precaution by way of safety-beams in case of the breaking of axletrees, the number of brakemen upon a train with reference to the number of cars, employing intemperate or incompetent engineers and servants, running beyond a given rate of speed, and a thousand similar things, most of which have been made the subject of legislation or judicial determination, and all of which may be. Hegeman v. Western R. Co., 16 Barb. 353.

"2. There is also the general police power of the State, by which persons and property are subjected to all kinds of restraints and burdens, in order to secure the general comfort, health, and prosperity of the State; of the perfect right in the legislature to do which no question ever was, or, upon acknowledged general principles, ever can be made, so far as natural persons are concerned. And it is certainly calculated to excite surprise and alarm that the right to do the same in regard to railways should be made a serious question." And the court proceed to consider the various cases in which the right of the legislature to regulate matters of private concern with reference to the general public good has been acted upon as unquestioned, or sustained by judicial decisions, and quote, as pertinent to the general question of what laws are prohibited on the ground of impairing the obligation of contracts, the language of Chief Justice Marshall in Dartmouth College v. Woodward, 4 Wheat. 518, 629, that "the framers of the Constitution did not intend to restrain the States in the regulation of their civil institutions, adopted for internal government, and that the instrument they have given us is not to be so construed." See to the same effect Suydam v. Moore, 8. Barb. 358; Waldron v. Rensselaer & Saratoga R. R. Co., 8 Barb. 390; Galena & Chicago U. R. R. Co. v. Loomis, 13 Ill. 548; Fitchburg R. R. v. Grand Junction R. R. Co., 1 Allen, 552; Veazie v. Mayo, 45 Me. 560; Peters v. Iron Mountain R. R. Co., 23 Mo. 107; Grannahan v. Hannibal, &c. R. R. Co., 30 Mo. 546; Indianopolis & Cincinnati R. R. Co. v. Kercheval, 16 Ind. 84; Galena & Chicago U. R. R. Co. v. Appleby, 28 Ill. 283.

permissible at first, and under the regulations then existing, and those only, may the corporators continue to exercise their rights while the artificial existence continues. The obligation of the contract by no means extends so far; but on the contrary, the rights and privileges which it confers are only thereby placed upon the same footing with other legal rights and privileges of the citizen in respect to proper rules for their due regulation, protection, and enjoyment.

The limit to the exercise of the police power 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 pretence 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.1 The maxim, Sic utere tuo ut alienum non ladas, is that which lies at the foundation of the power; and to whatever enactment affecting the management and business of private corporations it cannot fairly be applied, the power itself will not extend. It has accordingly been held that where a corporation was chartered with the right to take toll from passengers over their road, a subsequent statute authorizing a certain class of persons to go toll free was void.2 This was not a regulation of existing rights, but it took from the corporation that

1 Washington Bridge Co. v. State, 18 Conn. 53; Bailey v. Philadelphia, &c. R. R. Co., 4 Harr. 389; State v. Noyes, 47 Me. 189; Pingrey v. Washburn, 1 Aiken, 268; Miller v. N. Y. & Erie R. R. Co., 21 Barb. 513; People v. Jackson & Michigan Plank Road Co., 9 Mich. 307. In Benson v. Mayor, &c. of New York, 10 Barb. 245, it is said, in considering a ferry right granted to a city: "Franchisés of this description are partly of a public and partly of a private nature. So far as the accommodation of passengers is concerned, they are publici juris; so far as they require capital and produce revenue, they are priviti juris. Certain duties and burdens are imposed upon the grantees, who are compensated therefor by the privilege of levying ferriage and the security from spoliation arising from the irrevocable nature of the grant. The State may legislate touching them, so far as they are publici juris. Thus, laws may be passed to punish neglect or misconduct in conducting the ferries, to secure the safety of passengers from danger and imposition, &c. But the State cannot take away the ferries themselves, nor deprive the city of their legitimate rents and profits." And see People v. Mayor, &c. of New York, 32 Barb. 102, 116.

2 Pingrey v. Washburn, 1 Aiken, 268. This decision, and those which follow, assume that there is nothing in the original charter of the corporation which would warrant an amendment of the charter to this effect.