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can do is to see that the States do not, under cover of this power, invade the sphere of national sovereignty, obstruct or impede the exercise of any authority which the Constitution has confided to the nation, or deprive any citizen of rights guaranteed by the federal Constitution.1

Conflict with Federal Authority. But while the general authority of the State is fully recognized, it is easy to see that the power might be so employed as to interfere with the jurisdiction of the general government; and some of the most serious questions regarding the police of the States concern the cases in which authority has been conferred upon Congress. In those cases it has sometimes been claimed that the ordinary police jurisdiction is by necessary implication excluded, and that, if it were not so, 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 absolute, or burden the privileges which are conferred by law of Congress, and which therefore cannot properly be subject to the interference or control of any other authority. But any accurate statement of the theory upon which the police power rests will render it apparent that a proper exercise of it by the State cannot come in conflict with the provisions of the Constitution of the United States. If the power extends only to a just regulation of rights with a view to the due protection and enjoyment of all, and does not deprive any one of that which is justly and properly his own, it is obvious that its possession by the State, and its exercise for the regulation of the property and actions of its citizens, cannot well constitute an invasion of national jurisdiction, or afford a basis for an appeal to the protection of the national authorities.

Obligation of Contracts. The occasions to consider this subject in its bearings upon the clause of the Constitution of the United States which forbids the States passing any laws impairing the obligation of contracts have been frequent and varied; and it has been held without dissent that this clause does not so far

1 See this subject considered at large in the License Cases, 5 How. 504, the Passenger Cases, 7 How. 283, and the Slaughter-House Case, 16 Wall. 36. Congress has no power

to authorize a business within a State which is prohibited by the State. License Tax Cases, 5 Wall. 471, per Chase, Ch. J.

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 declared, are subject to this power; and not only may regulations which affect them be established by the State, but all such regulations must be subject to change from time to time, as the general well-being of the community may require, or as the circumstances may change, or as experience may demonstrate the necessity.1

1 In the case of Thorpe v. Rutland and Burlington R. R. Co., 27 Vt. 140, a 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 lawmaking 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 devest 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

[* 575] * Perhaps the most striking illustrations of the principle here stated will be found among the judicial decisions

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 inanner 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 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 circum

stances.

"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 axle-trees, 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 and Saratoga R. R. Co., 8 Barb. 390; Galena and Chicago U. R. R. Co. v. Loomis,

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which have held that the rights insured to private cor- [* 576] porations 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 in order to guard properly 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

permissible at first, and under the regulations then ex- [*577] isting, 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 come into existence under it are placed upon the same footing with other legal rights and privileges of the citizen, and subject in like manner 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

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; Indianapolis and Cincinnati R. R. Co. v. Kercheval, 16 Ind. 84; Galena and Chicago U. R. R. Co. v. Appleby, 28 Ill. 283; Blair v. Milwaukee, &c. R. R. Co., 20 Wis. 254; State v. Mathews, 44 Mo. 523; Commissioners, &c. v. Holyoke Water Power Co., 104 Mass. 446; Railroad Co. v. Fuller, 17 Wall. 560; Toledo, &c. R. R. Co. v. Deacon, 63 Ill. 91; Ames v. Lake Supe

rior, &c. R. R. Co., 21 Minn. 241; N. W. Fertilizing Co. v. Hyde Park, 70 Ill. 634; State v. New Haven, &c. Co., 43 Conn. 351.

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. and Erie R. R. Co., 21 Barb. 513; People v. Jackson and Michigan Plank Road Co., 9 Mich. 307; Sloan v. Pacific R. R. Co., 61 Mo. 24; Attorney-General v. Chicago, &c. R. R. Co., 35 Wis. 425. In Benson v. Mayor, &c. of New York, 10 Barb.

The maxim, Sic utere tuo ut alienum non lædas, 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. This was not a regulation of exist[*578] ing rights, but it took from the corporation that *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."2 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 impairing 245, it is said, in considering a ferry right granted to a city: "Franchises 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 privati juris.

Certain duties and burdens are imposed upon the grantees, who are compensated therefor by the privilege of levying ferriage and 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 fer

ries, 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; Commonwealth v. Pennsylvania Canal Co., 66 Penn. St. 41; Hegemen v. Western R. R., 13 N. Y. 1.

1 Pingrey. Washburn, 1 Aiken, 268. Of course the charter reserved no right to make such an amendment.

2 Christiancy, J., in People v. Jackson and Michigan Plank Road Co., 9 Mich. 307. Compare Commonwealth v. Pennsylvania Canal Co., 66 Penn. St. 41.

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