which they before possessed, namely, the right to tolls, and conferred upon individuals that which before they had not, namely, the privilege to pass over the road free of toll. "Powers," it is said in another case, which can only be justified on this specific ground [that they are police regulations], and which would otherwise be clearly prohibited by the constitution, can be such only as are so clearly necessary to the safety, comfort, and well-being of society, or so imperatively required by the public necessity, as to lead to the rational and satisfactory conclusion that the framers of the constitution could not, as men of ordinary prudence and foresight, have intended to prohibit their exercise in the particular case, notwithstanding the language of the prohibition would otherwise include it." 1 And it was therefore held that an act subsequent to the charter of a plank-road company, and not assented to by the corporators, which subjected them to a total forfeiture of their franchises for that which by the charter was cause for partial forfeiture only, was void as violating the obligation of contracts.2 And even a provision in a corporate charter, empowering the legislature to alter, modify, or repeal it, would not authorize a subsequent act which, on pretence of amendment or of a police regulation, would have the effect to appropriate a portion of the corporate property to the public use. And where by its charter the corporation is empowered to construct over a river a certain bridge, which must necessarily constitute an obstruction to the navigation of the river, a subsequent amendment making the corporation liable for such obstruction would be void, as in effect depriving the corporation of the very right which the charter assured to it. So where the charter reserved to the legislature the right of modification after the corporators had been reimbursed their expenses in constructing the bridge, with twelve per cent interest thereon,

1 Christiancy, J. in People v. Jackson & Michigan Plank Road Co., 9 Mich. 307.

Ibid. And see State v. Noyes, 47 Me. 189.

3 The reservation of a right to amend or repeal would not justify an act requiring a railroad company to cause a proposed new street or highway to be taken across their track, and to cause the necessary embankments, excavations, and other work to be done for that purpose at their own expense; thus not only appropriating a part of their property to another public use, but compelling them to be at the expense of fitting it for such use. Miller v. N. Y. & Erie R. R. Co., 21 Barb. 513.

Bailey v. Philadelphia, &c. R. R. Co., 4 Harr, 389.

an amendment before such reimbursement, requiring the construction of a fifty-foot draw for the passage of vessels in place of one of thirty-two feet, was held unconstitutional and void.1 So a power to a municipal corporation to regulate the speed of railway carriages would not authorize such regulation except in the streets and public grounds of the city; such being the fair construction of the power, and the necessity for this police regulation not extending further.2

On the other hand, the right to require existing railroad corporations to fence their track, and to make them liable for all beasts killed by going upon it, has been sustained on two grounds: first, as regarding the division fence between adjoining proprietors, and in that view being but a reasonable provision for the protection of domestic animals; and second, and chiefly, as essential to the protection of persons being transported in the railway carriages.3 Having this double purpose in view, the owner of beasts killed or injured may maintain an action for the damage suffered, notwithstanding he may not himself be free from negligence. But it would, perhaps, require an express legislative declaration that the corporation should be liable for the beasts thus destroyed to

1 Washington Bridge Co. v. State, 18 Conn. 53.

State v. Jersey City, 5 Dutch. 170. In Buffalo & Niagara Falls R. R. Co. v. Buffalo, 5 Hill, 209, it was held that a statutory power in a city to regulate the running of cars within the corporate limits would justify an ordinance entirely prohibiting the use of steam for propelling cars through any part of the city. And see Great Western R. R. Co. v. Decatur, 33 Ill. 381.

Thorpe v. Rutland & Burlington R. R. Co., 27 Vt. 156; New Albany & Salem R. R. Co. v. Tilton, 12 Ind. 3; Same v. Maiden, Ibid. 10; Same v. McNamara, 11 Ind. 543; Ohio & Mississippi R. R. Co. v. McClelland, 25 Ill. 145; Madison & Indianapolis R. R. Co. v. Whiteneck, 8 Ind. 230; Indianapolis & Cincinnati R. R. Co. v. Townsend, 10 Ind. 38; Same v. Kercheval, 16 Ind. 84; Corwin v. N. Y. & Erie R. R. Co., 13 N. Y. 42; Horn v. Atlantic & St. Lawrence R. R. Co., 35 N. H. 169, and 36 Ibid. 440; Fawcett v. York & North Midland R. Co., 15 Jur. 173; Smith v. Eastern R. R. Co., 35 N. H. 356; Bulkley v. N. Y. & N. H. R. R. Co., 27 Conn. 479. A subsequent statute making railroad companies liable for injuries by fire communicated by their locomotive-engines was sustained in Lyman v. Boston & Worcester R. R. Co., 4 Cush. 288. And see Camden & Amboy R. R. Co. v. Briggs, 2 Zab. 623.

* Corwin v. N. Y. & Erie R. R. Co., 13 N. Y. 42; Indianapolis & Cincinnati R. R. Co. v. Townsend, 10 Ind. 38; Suydam v. Moore, 8 Barb. 358; Fawcett v. York & North Midland R. Co., 15 Jur. 173; Waldron v. Rensselaer & Schenectady R. R. Co., 8 Barb. 390; Horne v. Atlantic & St. Lawrence R. R. Co., 35 N. H. 169.

create so great an innovation in the common law. The general rule, where a corporation has failed to obey the police regulations established for its government, would not make the corporation liable to the party injured, if his own negligence contributed with that of the corporation in producing the injury.1

The State may also regulate the grade of railways, and prescribe how, and upon what grade, railway tracts shall cross each other; and it may apportion the expense of making the necessary crossings between the corporations owning the roads. And it may establish regulations requiring existing railways to ring the bell or blow the whistle of their engines immediately before passing highways at grade, or other places where their approach might be dangerous to travel. And it has even been intimated that it might be competent for the State to make railway corporations liable as insurers for the safety of all persons carried by them, in the same manner that they are by law liable as carriers of goods; though this would seem to be pushing the police power to an ex

And see Marsh v. Co. v. Jones, 20 Ill.

1 Jackson v. Rutland & Burlington R. R. Co., 25 Vt. 150. N. Y. & Erie R. R. Co., 14 Barb. 364; Joliet & N. I. R. R. 221; Tonawanda R. R. Co. v. Munger, 5 Denio, 255, and 4 N. Y. 255. In Indianapolis & Cincinnati R. R. Co. v. Kercheval, 16 Ind. 84, it was held that a clause in the charter of a railroad corporation which declared that when the corporators should have procured a right of way as therein provided, they should be seised in fee simple of the right to the land, and should have the sole use and occupation of the same, and no person, body corporate or politic should in any way interfere therewith, molest, disturb, or injure any of the rights and privileges thereby granted, &c., would not take from the State the power to establish a police regulation making the corporation liable for cattle killed by their

cars.

198.

Fitchburg R. R. Co. v. Grand Junction R. R. Co., 1 Allen, 552, and 4 Allen,

3 "The legislature has the power, by general laws, from time to time, as the public exigencies may require, to regulate corporations in their franchises, so as to provide for the public safety. The provision in question is a mere police regulation, enacted for the protection and safety of the public, and in no manner interferes with or impairs the powers conferred on the defendants in their act of incorporation." Galena & Chicago U. R. R. Co. v. Loomis, 13 Ill. 548. And see Stuyvesant v. Mayor, &c. of New York, 7 Cow. 604; Benson v. Mayor, &c. of New York, 10 Barb. 240; Bulkley v. N. Y. & N. H. R. R. Co., 27 Conn. 486; Veazie v. Mayo, 45 Me. 560; Same case, 49 Me. 156; Galena & Chicago U. R. R. Co. v. Dill, 22 Ill. 264; Same v. Appleby, 28 Ill. 283; Ohio & Mississippi R. R. Co. v. McClelland, 25 Ill. 145; Clark's Admr. v. Hannibal & St. Jo. R. R. Co. 36 Mo. 202.

treme. But those statutes which have recently become common, and which give an action to the representatives of persons killed. by the wrongful act, neglect, or default of another, may unquestionably be held applicable to corporations previously chartered, and may be sustained as only giving a remedy for a wrong for which the common law had failed to make provision.2

Those statutes which regulate or altogether prohibit the sale of intoxicating drinks as a beverage have also sometimes been supposed to conflict with the Federal Constitution. Such of these, however, as assume to regulate only, and to prohibit sales by other persons than those who should be licensed by the public authorities, have not suggested any serious question of constitutional power. They are but the ordinary police regulations, such as the State may make in respect to all classes of trade or employment. But those which undertake altogether to prohibit the manufacture and sale of intoxicating drinks as a beverage have been assailed as violating express provisions of the national Constitution, and also as

1 Thorpe v. Rutland & Burlington R. R. Co., 27 Vt. 152. Carriers of goods are liable as insurers, notwithstanding they may have been guiltless of negligence, because such is their contract with the shipper when they receive his goods for transportation; but carriers of persons assume no such obligations at the common law; and where a company of individuals receive from the State a charter which makes them carriers of persons, and chargeable as such for their own default or negligence only, it may well be doubted if it be competent for the legislature afterwards to impose upon their contracts new burdens, and make them respond in damages where they have been guilty of no default. In other words, whether that could be a proper police regulation which did not assume to regulate the business of the carrier with a view to the just protection of the rights and interests of others, but which imposed a new obligation, for the benefit of others, upon a party guilty of no neglect of duty. But perhaps such a regulation would not go further than that in Stanley v. Stanley, 26 Me. 191, where it was held competent for the legislature to pass an act making the stockholders of existing banks liable for all corporate debts thereafter created; or in Peters v. Iron Mountain R. R. Co. 23 Mo. 107, and Grannahan v. Hannibal, &c. R. R. Co., 30 Mo. 546, where an act was sustained which made companies previously chartered liable for the debts of contractors to the workmen whom they had employed.

* Southwestern R. R. Co. v. Paulk, 24 Geo. 356; Coosa River Steamboat Co. v. Barclay, 30 Ala. 120. In Boston, Concord, & Montreal R. R. v. State, 32 N. H. 215, a statute making railroad corporations liable to indictment and fine, in case of the loss of life by the negligence or carelessness of the proprietors or their servants, was adjudged constitutional, as applicable to corporations previously in existence.

Bode v. State, 7 Gill, 326; Bancroft v. Dumas, 21 Vt. 456; Thomasson v. State, 15 Ind. 449; License Cases, 5 How. 504.

subversive of fundamental rights, and therefore not within the grant of legislative power.

That legislation of this character was void, so far as it affected imported liquors, or such as might be introduced from one State into another, because in conflict with the power of Congress over commerce, was strongly urged in the License Cases before the Supreme Court of the United States, but that view did not obtain the assent of the court. The majority of the court expressed the opinion which, however, was obiter in those cases that the introduction of imported liquors into a State, and their sale in the original packages as imported, could not be forbidden, because to do so would be to forbid what Congress, in its regulation of commerce, and in the levy of imposts, had permitted;1 but it was conceded by all, that when the orignal package was broken up for use or for retail by the importer, and also when the commodity had passed from his hands into the hands of a purchaser, it ceased to be an import, or a part of foreign commerce, and thereby became subject to the laws of the State, and might be taxed for State purposes, and the sale regulated by the State like any other property. It was also decided, in these cases, that the power of Congress to regulate commerce between the States did not exclude regulations by the States, except so far as they might come in conflict with those established by Congress; and that, consequently, as Congress had not undertaken to regulate commerce in liquors between the States, a law of New Hampshire could not be held void which punished the sale, in that State, of gin purchased in Boston and sold in New Hampshire, notwithstanding the sale was in the cask in which it was imported, but by one not licensed by the selectmen.3

It would seem, from the views expressed by the several members of the court in these cases, that the State laws known as Prohibitory Liquor Laws, the purpose of which is to prevent altogether

1 Taney, Ch. J., 5 How. 574; McLean, J., Ibid. 589; Catron, J., Ibid. 608. And see Brown v. Maryland, 12 Wheat. 419; Lincoln v. Smith, 27 Vt. 335. Bradford v. Stevens, 10 Gray, 379; State v. Robinson, 49 Me. 285.

↑ Daniel, J. held that the right to regulate was not excluded, even while the packages remained in the hands of the importer unbroken (p. 612). See also the views of Grier, J. (p. 631).

See also Bode v. State, 7 Gill, 326; Jones v. People, 14 Ill. 196; State v. Wheeler, 25 Conn. 290; Santo v. State, 2 Iowa, 202; Commonwealth v. Clapp, 5 Gray, 97.