Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

There is only one case that I can find in support of that theory, Amsbey v. Hinds, 46 Barb. 622; but even that expressly states that non-user cannot be predicated on an obstruction by the owner whose interest it is to gain the land. The better opinion therefore would seem to be that the adjoining owners could not gain title by the illegal closing of the road, which they fenced in.

As a matter of fact, every case of this kind is usually modified by circumstances peculiar to itself; and all that is intended in this article is to discuss in a general way some of the different questions that might arise, and to indicate the difficulties that surround the examination of titles in which an old Dutch road plays a prominent part.

[blocks in formation]

MUGLER V. State of KANSAS; STATE OF KANSAS V. ZIEBOLD AND HAGELIN.

The State may absolutely prohibit the manufacture and sale of intoxicating liquors as a beverage, and may declare places where such liquors are manufactured or sold to be nuisances, and may authorize their abatement upon due judicial finding to that effect, and the destruction of such liquors found therein and of all property used in keeping and manufacturing such nuisances, and the fining and imprisonment of their keepers, and a perpetual injunction against the same.

Such a statute is valid as to such liquors lawfully manufac. tured before the enactment of the statute, and although it greatly deteriorates the value of property lawfully used in such manufacture before the enactment of the statute.

APPEAL from the Circuit Court of the United

States for the District of Kansas.

HARLAN, J. These cases involve an inquiry into the validity of certain statutes of Kansas relating to the manufacture and sale of intoxicating liquors.

The first two are indictments, charging Mugler, the plaintiff in error, in one case, with having sold, and in the other with having manufactured, spirituous, vinous, malt, fermented and other intoxicating liquors in Saline county, Kansas, without having the license or permit required by the statute. The defendant having been found guilty, was fined in each case $100, and ordered to be committed to the county jail until the fine was paid. Each judgment was affirmed by the Supreme Court of Kansas, and thereby, it is contended, the defendant was denied rights, privileges and immunities guaranteed by the Constitution of the United States.

The third case-Kansas v. Ziebold & Hagelin-was commenced by petition filed in one of the courts of the State. The relief sought is: 1. That the group of buildings in Atchison county, Kansas, constituting the brewery of the defendants, partners as Ziebold & Hagelin, be adjudged a common nuisance, and the sheriff or other proper officer directed to shut up and abate the same. 2. That the defendants be enjoined from using, or permitting to be used, the said premises as a place where intoxicating liquors may be sold, bartered, or given away, or kept for barter, sale, or gift, otherwise than by authority of law.

The defendants answered, denying the allegations of the petition, and averring: First. That said buildings were erected by them prior to the adoption by the people of Kansas of the constitutional amendment prohibiting the manufacture and sale of Intoxicating liquors for other than medicinal, scientific and

mechanical purposes, and before the passage of the prohibitory liquor statute of that State. Second. That they were erected for the purpose of manufacturing beer, and cannot be put to any other use; and if not so used, they will be of little value. Third. That the statute under which said suit is brought is void under the Fourteenth Amendment of the Constitution of the United States.

Upon the petition and bond of the defendants the cause was removed into the Circuit Court of the United States for the district of Kansas upon the ground that the suit was one arising under the Constitution of the United States. A motion to remand it to the State court was denied. The pleadings were recast so as to conform to the equity practice in the courts of the United States; and the cause having been heard upon bill and answer, the suit was dismissed. From that decree the State prosecutes an appeal.

By a statute of Kansas, approved March 3, 1868, it was made a misdemeanor, punishable by fine and imprisonment, for any one, directly or indirectly, to sell spirituous, vinous, fermented, or other intoxicating liquors, without having a dram-shop, tavern or grocery license. It was also enacted, among other things, that every place where intoxicating liquors were sold in violation of the statute should be taken, held and deemed to be a common nuisance; and it was required that all rooms, taverns, eating-houses, bazaars, restaurants, groceries, coffee-houses, cellars, or other places of public resort where intoxicating liquors were sold, in violation of the law, should be abated as public nuisances. Gen. Stat. Kans., 1868, ch. 35.

But in 1880 the people of Kansas adopted a more stringent policy. On the 2d of November of that year they ratified an amendment to the State Constitution which declared that the manufacture and sale of intoxicating liquors should be forever prohibited in that State, except for medical, scientific and mechanical purposes.

In order to give effect to that amendment, the Legislature repealed the act of 1868, and passed an act, approved February 19, 1881, to take effect May 1, 1881, entitled "An act to prohibit the manufacture and sale of intoxicating liquors, except for medical, scientific and mechanical purposes, and to regulate the manufacture and sale thereof for such excepted purposes." Its first section provides "that any person or persons who shall manufacture, sell or barter any spirituous, malt, vinous, fermented, or other intoxicating liquors shall be guilty of a misdemeanor: Provided however, That such liquors may be sold for medical, scientific and mechanical purposes, as provided in this act." The second section makes it unlawful for any person to sell or barter for either of such excepted purposes any malt, vinous, spirituous, fermented, or other intoxicating liquors without having procured a druggist's permit therefor, and prescribes the conditions upon which such permit may be granted. The third section relates to the giving by physicians of prescriptions for intoxicating liquors to be used by their patients, and the fourth, to the sale of such liquors by druggists. The fifth section forbids any person from manufacturing or assisting in the manufacture of intoxicating liquors in the State, except for medical, scientific and mechanical purposes, and makes provision for the granting of licenses to engage in the business of manufacturing liquors for such excepted purposes. The seventh section declares it to be a misdemeanor for any person, not having the required permit, to sell or barter, directly or indirectly, spirituous, malt, vinous, fermented, or other intoxicating liquors, the punishment prescribed being, for the first offense, a fine of not less than $100 nor more than $500, or imprisonment in the county jail not less than twenty nor more than ninety days; for the second offense, a

fine of not less than $200 nor more than $500, or imprisonment in the county jail not less than sixty days nor more than six months; and for every subsequent offense, a fine not less than $500 nor more than $1,000, or imprisonment in the county jail not less than three months nor more than one year, or both such fine and imprisonment, in the discretion of the court. The eighth section provides for similar fines and punishments against persons who manufacture, or aid, assist or abet the manufacture of any intoxicating liquors without having the required permit. The thirteenth section declares, among other things, all places where intoxicating liquors are manufactured, sold, bartered, or given away, or are kept for sale, barter, or use, in violation of the act, to be common nuisances; and provides that upon the judgment of any court having jurisdiction finding such place to be a nuisance, the proper officer shall be directed to shut up and abate the same.

Under that statute, the prosecutions against Mugler were instituted. It contains other sections in addition to those above referred to; but as they embody merely the details of the general scheme adopted by the State for the prohibition of the manufacture and sale of intoxicating liquors, except for the purposes specified, it is unnecessary to set them out.

On the 7th of March, 1885, the Legislature passed an act amendatory and supplementary to that of 1881. The thirteenth section of the former act, being the one upon which the suit against Ziebold and Hagelin is founded, will be given in full in a subsequent part of this opinion.

The facts necessary to a clear understanding of the questions common to these cases are the following: Mugler and Ziebold & Hagelin were engaged in manufacturing beer at their respective establishments (constructed specially for that purpose) for several years prior to the adoption of the constitutional amendment of 1880. They continued in such business in defiance of the statute of 1881, and without having the required permit. Nor did Mugler have a license or permit to sell beer. The single sale of which he was found guilty occurred in the State, and after May 1, 1881, that is, after the act of February 19, 1881, took effect, and was of beer manufactured before its passage.

The buildings and machinery constituting these breweries are of little value if not used for the purpose of manufacturing beer; that is to say, if the statutes are enforced against the defendants the value of their property will be very materially diminished.

The general question in each case is, whether the foregoing statutes of Kansas are in conflict with that clause of the Fourteenth Amendment which provides that "no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law."

That legislation by a State prohibiting the manufacture within its limits of intoxicating liquors, to be there sold or bartered for general use as a beverage, does not necessarily infringe any right, privilege, or immunity secured by the Constitution of the United States, is made clear by the decisions of this court, rendered before and since the adoption of the Fourteenth Amendment, to some of which, in view of the questions to be presently considered, it will be well to refer.

In the License cases, 5 How. 504, the question was, whether certain statutes of Massachusetts, Rhode Island and New Hampshire, relating to the sale of spirituous liquors were repugnant to the Constitution of the United States. In determining that question, it became necessary to inquire whether there was any

*

conflict between the exercise by Congress of its power to regulate commerce with foreign countries, or among the several States, and the exercise by a State of what are called police powers. Although the members of the court did not fully agree as to the grounds upon which the decision should be placed, they were unanimous in holding that the statutes then under examination were not inconsistent with the Constitution of the United States, or with any act of Congress. Chief Justice Taney said: "If any State deems the retail and internal traffic in ardent spirits injurious to its citizens, and calculated to produce idleness, vice, or debauchery, I see nothing in the Constitution of the United States to prevent it from regulating and restraining the traffic, or from prohibiting it altogether, if it thinks proper." Mr. Justice McLean, among other things, said: "A State regulates its domestic commerce, contracts, the transmission of estates, real and personal, and acts upon internal matters which relate to its moral and political welfare. Over these subjects the Federal government has no power. **The acknowledged police power of a State extends often to the destruction of property. A nuisance may be abated. Every thing prejudicial to the health or morals of a city may be removed." Mr. Justice Woodbury observed: "How can they (the States) be sovereign within their respective spheres, without power to regulate all their internal commerce, as well as police, and direct how, when and where it shall be conducted in articles intimately connected either with public morals or public safety or public prosperity?" Mr. Justice Grier, in still more emphatic language, said: "The true question presented by these cases, and one which I am not disposed to evade, is whether the States have a right to prohibit the sale and consumption of an article of commerce which they believe to be pernicious in its effects, and the cause of disease, pauperism and crime. * * * Without attempting to define what are the peculiar subjeets or limits of this power, it may safely be affirmed that every law for the restraint or punishment of crime, for the preservation of the public peace, health and morals must come within this category. * It is not necessary, for the sake of justifying the State legislation now under consideration, to array the appalling statistics of misery, pauperism and crime which have their origin in the use or abuse of ardent spirits. The police power, which is exclusively in the States, is alone competent to the correction of these great evils, and all measures of restraint or prohibition necessary to effect the purpose are within the scope of that authority."

* *

In Bartemeyer v. Iowa, 18 Wall. 129, it was said, that prior to the adoption of the Fourteenth Amendment, State enactments regulating or prohibiting the traffic in intoxicating liquors raised no question under the Constitution of the United States; and that such legislation is left to the discretion of the respective States, subject to no other limitations than those imposed by their own Constitutions, or by the general principles supposed to limit all legislative power. Referring to the contention that the right to sell intoxicating liquors was secured by the Fourteenth Amendment, the court said, that "so far as such a right exists, it is not one of the rights growing out of citizenship of the United States."

In Beer Co. v. Massachusetts, 97 U. S. 33, it was said, that "as a measure of police regulation, looking to the preservation of public morals, a State law prohibiting the manufacture and sale of intoxicating liquors is not repugnant to any clause of the Constitution of the United States."

Finally in Foster v. Kansas, 112 U. S. 206, the court said that the question as to the constitutional power of a State to prohibit the manufacture and sale of in

toxicating liquors was no longer an open one in this court. These cases rest upon the acknowledged right of the States of the Union to control their purely internal affairs, and in so doing, to protect the health, morals and safety of their people by regulations that do not interfere with the execution of the powers of the general government, or violate rights secured by the Constitution of the United States. The power to establish such regulations, as was said in Gibbons v. Ogden, 9 Wheat. 203, reaches every thing within the territory of a State not surrendered to the national government.

It is however contended, that although the State may prohibit the manufacture of intoxicating liquors for sale or barter within her limits, for general use as a beverage, "no convention or Legislature has the right under our form of government to prohibit any citizen from manufacturing for his own use, or for export or storage, any article of food or drink not endangering or affecting the rights of others." The argument made in support of the first branch of this proposition, briefly stated, is that in the implied compact between the State and the citizen, certain rights are reserved by the latter, which are guaranteed by the constitutional provision protecting persons against being deprived of life, liberty, or property, without due process of law, and with which the State cannot interfere; that among those rights is that of manufacturing for one's use either food or drink; and that while according to the doctrines of the Commune, the State may control the tastes, appetites, habits, dress, food and drink of the people, our system of government, based upon the individuality and intelligence of the citizen, does not claim to control him, except as to his conduct to others, leaving him the sole judge as to all that only affects himself.

It will be observed that the proposition, and the argument made in support of it, equally concede that the right to manufacture drink for one's personal use is subject to the condition that such manufacture does not endanger or affect the rights of others. If such manufacture does prejudicially affect the rights and interests of the community, it follows, from the very premises stated, that society has the power to protect itself, by legislation, against the injurious consequences of that business. As was said in Munn v. Illinois, 94 U. S. 124, while power does not exist with the whole people to control rights that are purely and exclusively private, government may require" each citizen to so conduct himself, and so use his own property, as not unnecessarily to injure another."

But by whom, or by what authority, is it to be determined whether the manufacture of particular articles of drink, either for general use or for the personal use of the maker, will injuriously affect the public? Power to determine such questions, so as to bind all, must exist somewhere, else society will be at the mercy of the few, who regarding only their own appetites or passions, may be willing to imperil the peace and security of the many, provided only they are permitted to do as they please. Under our system that power is lodged with the legislative branch of the government. It belongs to that department to exert what are known as the police powers of the State, and to determine primarily what measures are appropriate or needful for the protection of the public morals, the public health, or the public safety.

It does not at all follow that every statute enacted ostensibly for the promotion of these ends is to be accepted as a legitimate exertion of the police powers of the State. There are, of necessity, limits beyond which legislation cannot rightfully go. While every possible presumption is to be indulged in favor of the validity of a statute (Sinking Fund cases, 99 U. S. 718),

the courts must obey the Constitution rather than the law-making department of government, and must upon their own responsibility determine whether, in any particular case, these limits have been passed. "To what purpose," it was said in Marbury v. Madison, 1 Cranch, 137, 167, "are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation." The courts are not bound by mere forms, nor are they to be misled by mere pretenses. They are at liberty indeed are under a solemn duty--to look at the substance of things, whenever they enter upon the inquiry whether the Legislature has transcended the limits of its authority. If therefore a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is a palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution.

Keeping in view these principles as governing the relations of the judicial and legislative departments of government with each other, it is difficult to perceive any ground for the judiciary to declare that the prohibition by Kansas of the manufacture or sale, within her limits, of intoxicating liquors for general use there as a beverage, is not fairly adapted to the end of protecting the community against the evils which confessedly result from the excessive use of ardent spirits. There is no justification for holding that the State, under the guise merely of police regulations, is here aiming to deprive the citizen of his constitutional rights; for we cannot shut out of view the fact, within the knowledge of all, that the public health, the public morals and the public safety may be endangered by the general use of intoxicating drinks; nor the fact, established by statistics accessible to every one, that the idleness, disorder, pauperism and crime existing in the country are, in some degree at least, traceable to this evil. If therefore a State deems the absolute prohibition of the manufacture and sale within her limits of intoxicating liquors for other than medical, scientific and manufacturing purposes, to be necessary to the peace and security of society, the courts cannot, without usurping legislative functions, override the will of the people as thus expressed by their chosen representatives. They have nothing to do with the mere policy of legislation. Indeed it is a fundamental principle in our institutions, indispensable to the preservation of public liberty, that one of the separate departments of government shall not usurp powers committed by the Constitution to another department. And so, if in the judgment of the Legislature, the manufacture of intoxicating liquors for the maker's own use, as a beverage, would tend to cripple, if it did not defeat, the effort to guard the community against the evils attending the excessive use of such liquors, it is not for the courts, upon their views as to what is best and safest for the community, to disregard the legislative determination of that question. So far from such a regulation having no relation to the general end sought to be accomplished, the entire scheme of prohibition, as embodied in the Constitution and laws of Kansas, might fail, if the right of each citizen to manufacture intoxicating liquors for his own use as a beverage were recognized. Such a right does not inhere in citizenship. Nor can it be said that government interferes with or impairs any one's constitutional rights of liberty or of property, when

it determines that the manufacture and sale of intoxicating drinks, for general or individual use, as a beverage, are, or may become hurtful to society, and constitute therefore a business in which no one may lawfully engage. Those rights are best secured in our government by the observance upon the part of all, of such regulations as are established by common authority to promote the common good. No one may rightfully do that which the law-making power, upon reasonable grounds, declares to be prejudicial to the general welfare.

This conclusion is unavoidable, unless the Fourteenth Amendment of the Constitution takes from the States of the Union those powers of police that were reserved at the time the original Constitution was adopted. But this court has declared, upon full consideration, in Barbier v. Connolly, 113 U. S. 31, that the Fourteenth Amendment had no such effect. After observing, among other things, that the amendment forbade the arbitrary deprivation of life or liberty, and the arbitrary spoliation of property, and secured equal protection to all under like circumstances in respect as well to their personal and civil rights as to their acquisition and enjoyment of property, the court said: "But neither the amendment, broad and comprehensive as it is, nor any other amendment, was designed to interfere with the power of the State, sometimes termed its police power, to prescribe regulations to promote the health, peace, morals, education and good order of the people, and to legislate so as to increase the industries of the State, develop its resources, and add to its wealth and prosperity."

Undoubtedly the State, when providing by legisla tion for the protection of the public health, the public morals, or the public safety, is subject to the paramount authority of the Constitution of the United States, and may not violate rights secured or guaranteed by that instrument, or interfere with the execution of the powers confided to the general government. Henderson v. Mayor of New York, 92 U. S. 259; Railroad Co. v. Husen, 95 id. 465; New Orleans Gas-Light Co. v. Louisiana Light Co., 115 id. 650; Walling v. Michigan, 116 id. 446; Yick Wo v. Hopkins, 118 id. 356; Morgan's Steamship Co. v. Louisiana Board of Health, id. 455.

Upon this ground, if we do not misapprehend the position of the defendants, it is contended that as the primary and principal use of beer is as a beverage; as their respective breweries were erected when it was lawful to engage in the manufacture of beer for every purpose; as such establishments will become of no value as property, or at least will be materially diminished in value, if not employed in the manufacture of beer for every purpose; the prohibition upon their being so employed is, in effect, a taking of property for public use without compensation, and depriving the citizen of his property without due process of law. In other words, although the State in the exercise of her police powers may lawfully prohibit the manufacture and sale within her limits of intoxicating liquors to be used as a beverage, legislation having that object in view cannot be enforced against those who at the time happen to own property, the chief value of which consists in its fitness for such manufacturing purposes, unless compensation is first made for the diminution in the value of their property resulting from such prohibitory enactments.

This interpretation of the Fourteenth Amendment is inadmissible. It cannot be supposed that the States intended by adopting that amendment to impose restraints upon the exercise of their powers for the protection of the safety, health, or morals of the community. In respect to contracts, the obligations of which are protected against hostile State legislation, this court, in Butchers' Union Co. v. Crescent City Co.,

111 U. S. 751, said that the State could not by any contract limit the exercise of her power to the prejudice of the public health and the public morals. So in Stone v. Mississippi, 101 U. S. 816, where the Constitution was invoked against the repeal by the State of a charter granted to a private corporation to conduct a lottery, and for which that corporation paid to the Stato a valuable consideration in money, the court said: "No Legislature can bargain away the public health or the public morals. The people themselves cannot do it, much less their servants. * * * Gov. ernment is organized with a view to their preservation, and cannot divest itself of the power to provide for them." Again in New Orleans Gas Co. v. Louisiana Light Co., 115 U. S. 650, 672: "The constitutional prohibition upon State laws impairing the obligation of contracts does not restrict the power of the State to protect the public health, the public morals, or the public safety, as the one or the other may be involved in the execution of such contracts. Rights and privileges arising from contracts with a State are subject to regulations for the protection of the public health, the public morals and the public safety, in the same sense, and to the same extent, as are all contracts and all property, whether owned by natural persons or corporations."

The principle that no person shall be deprived of life, liberty, or property, without due process of law, was embodied, in substance, in the Constitutions of nearly all, if not all of the States at the time of the adoption of the Fourteenth Amendment; and it has never been regarded as incompatible with the principle, equally vital, because essential to the peace and safety of society, that all property in this country is held under the implied obligation that the owner's use of it shall not be injurious to the commuity. Beer Co. v. Massachusetts, 97 U. S. 32; Commonwealth v. Alger, 7 Cush. 53. An illustration of this doctrine is afforded by Patterson v. Kentucky. 97 U. S. 501. The question there was as to the validity of a statute of Kentucky, enacted in 1874, imposing a penalty upon any one selling or offering for sale oils and fluids, the product of coal, petroleum, or other bituminous substances, which would burn or ignite at a temperature below 130° Fahrenheit. Patterson having sold, within that Commonwealth, a certain oil, for which letterspatent were issued in 1867, but which did not come up to the standard required by said statute, and having been indicted therefor, disputed the State's authority to prevent or obstruct the exercise of that right. This court upheld the legislation of Kentucky, upon the ground, that while the State could not impair the exclusive right of the patentee, or of his assignee, in the discovery described in the letters-patent, the tangible property, the fruit of the discovery, was not beyond control in the exercise of her police powers. It was said: "By the settled doctrines of this court the police power extends, at least, to the protection of the lives, the health, and the property of the community against the injurious exercise by any citizen of his own rights. State legislation, strictly and legitimately for police purposes, does not, in the sense of the Constitution necessarily trench upon any authority which bas been confided, expressly or by implication, to the national government. The Kentucky statute under examination manifestly belongs to that class of legislation. It is in the best sense a mere police regulation, deemed essential to the protection of the lives and property of citizens." Referring to the numerous decisions of this court guarding the power of Congress to regulate commerce against encroachment, under the guise of State regulations, established for the purpose and with the effect of destroying or impairing rights secured by the Constitution, it was further said: "It has nevertheless, with marked distinctness and

uniformity, recognized the necessity growing out of the fundamental conditions of civil society, of upholding State police regulations which were enacted in good faith, and had appropriate and direct connection with that protection to life, health and property which each State owes to her citizen." See also United States v. Dewitt, 9 Wall. 41; License Tax Cases, 5 id. 462; Pervear v. Commonwealth. id. 475.

Another decision, very much in point upon this branch of the case, is Fertilizing Co. v. Hyde Park, 97 U. S. 659, 667, also decided after the adoption of the Fourteenth Amendment. The court there sustained the validity of an ordinance of the village of Hyde Park, in Cook county, Illinois, passed under legislative authority, forbidding any person from transporting through that village offal or other offensive or unwholesome matter, or from maintaining or carrying on an offensive or unwholesome business or establishment within its limits. The Fertilizing Company had, at large expense, and under authority expressly conferred by its charter, located its works at a particular point in the county. Besides the charter of the village at that time provided that it should not interfere with parties engaged in transporting animal matter from Chicago, or from manufacturing it into a fertilizer or other chemical product. The enforcement of the ordinance in question operated to destroy the business of the company, and seriously to impair the value of its property. As however its business had become a nuisance to the community in which it was conducted, producing discomfort, and often sickness among large masses of people, the court maintained the authority of the village, acting under legislative sanction, to protect the public health against such nuisance. It said: "We cannot doubt that the police power of the State was applicable and adequate to give an effectual remedy. That power belonged to the States when the Federal Constitution was adopted. They did not surrender it, and they all have it now. It extends to the entire property and business within their local jurisdiction. Both are subject to it in all proper cases. It rests upon the fundamental principle that every one shall so use his own as not to wrong and injure another. To regulate and abate nuisances is one of its ordinary functions."

It is supposed by the defendants that the doctrine for which they contend is sustained by Pumpelly v. Green Bay Co., 13 Wall. 168. But in that view we do not concur. That was an action for the recovery of damages for the overflowing of the plaintiff's land by water, resulting from the construction of a dam across a river. The defense was that the dam constituted a part of the system adopted by the State for improving the navigation of Fox and Wisconsin rivers; and it was contended that as the damages of which the plaintiff complained were only the result of the improvement under legislative sanction of a navigable stream, he was not entitled to compensation from the State or its agents. The case therefore involved the question whether the overflowing of the plaintiff's land to such an extent that it became practically unfit to be [used was a taking of property, within the meaning of the Constitution of Wisconsin, providing that "the property of no person shall be taken for public use without just compensation therefor." This court said it would be a very curious and unsatisfactory result were it held that "if the government refrains from the absolute conversion of real property to the uses of the public, it can destroy its value entirely, can inflict irreparable and permanent injury to any extent, can in effect subject it to total destruction, without making any compensation, because in the narrowest sense of that word, it is not taken for the public use. Such a construction would pervert the constitutional provision into a restriction upon the rights of the citi

zen, as those rights stood at the common law, instead of the government, and make it an authority for the invasion of private rights under the pretext of the public good, which had no warrant in the laws or practices of our ancestors."

These principles have no application to the case under consideration. The question in Pumpelly v. Green Bay Company arose under the State's power of eminent domain; while the question now before us arises under what are strictly the police powers of the State, exerted for the protection of the health, morals and safety of the people. That case, as this court said in Transportation Co. v. Chicago, 99 U. S. 642, was an extreme qualification of the doctrine, universally held, that "acts done in the proper exercise of governmental powers, and not directly encroaching upon private property, though these consequences may impair its use," do not constitute a taking within the meaning of the constitutional provision, or entitle the owner of such property to compensation from the State or its agents, or give him any right of action. It was a case in which there was a permanent flooding of private property," a "physical invasion of the real estate of the private owner, and a practical ouster of his possession." His property was in effect required to be devoted to the use of the public, and consequently he was entitled to compensation.

[ocr errors]

As already stated, the present case must be governed by principles that do not involve the power of eminent domain, in the exercise of which property may not be taken for public use without compensation. A prohibition simply upon the use of property for purposes that are declared by valid legislation to be injurious to the health, morals, or safety of the community, cannot in any just sense be deemed a taking or an appropriation of property for the public benefit. Such legislation does not disturb the owner in the control or use of his property for lawful purposes, nor restrict his right to dispose of it, but is only a declaration by the State that its use by any one for certain forbidden purposes is prejudicial to the public interests. Nor can legislation of that character come within the Fourteenth Amendment in any case, unless it is apparent that its real object is not to protect the community, or to promote the general well-being, but under the guise of police regulation to deprive the owner of his liberty and property, without due process of law. The power which the States have of prohibiting such use by individuals of their property as will be prejudicial to the health, the morals, or the safety of the public, is not and consistently with the existence and safety of organized society, cannot be burdened with the condition that the State must compensate such individual owners for pecuniary losses they may sustain, by reason of their not being permitted, by a noxious use of their property, to inflict injury upon the community. The exercise of the police power by the destruction of property which is itself a public nuisance, or the prohibition of its use in a particular way, whereby its value becomes depreciated is very different from taking property for public use, or from depriving a person of his property without due process of law. In the one case, a nuisance is only abated; in the other, unoffending property is taken away from an innocent owner.

It is true, that when the defendants in these cases purchased or erected their breweries, the laws of the State did not forbid the manufacture of intoxicating liquors. But the State did not thereby give any assurance or come under an obligation that its legislation upon that subject would remain unchanged. Indeed as was said in Stone v. Mississippi, 101 U. S., the supervision of the public health and the public morals is a governmental power, "continuing in its nature," and "to be dealt with as the special exigencies of the

« ΠροηγούμενηΣυνέχεια »