!

cases where, although the traffic upon the river is impor[*593] tant, yet an * inconvenience caused by a bridge with draws would be much less seriously felt by the public, and be a much lighter burden upon trade and travel than a break in a line of railroad communication necessitating the employment of a ferry. In general terms it may be said that the State may authorize such constructions, provided they do not constitute material obstructions to navigation; but whether they are to be regarded as material obstructions or not is to be determined in each case upon its own circumstances. The character of the structure, the facility afforded for vessels to pass it, the relative amount of traffic likely to be done upon the stream and over the bridge, and whether the traffic by rail would be likely to be more incommoded by the want of the bridge than the traffic by water with it, are all circumstances to be taken into account in determining this question. It is quite evident that the same structure might constitute a material obstruction on the Ohio or the Mississippi, where vessels are constantly passing, which would be unobjectionable on a stream which a boat only enters at intervals of weeks or months. The decision of the State legislature that the erection is not an obstruction is not conclusive; but the final determination will rest with the Federal courts, who have jurisdiction to cause the structure to be abated, if it be found to obstruct unnecessarily the traffic upon the water. Parties constructing the bridge must be prepared to show, not only the State authority, and that the plan and construction are proper, but also that it accommodates more than it impedes the general commerce.1

4. The States may lawfully establish ferries over navigable waters, and grant licenses for keeping the same, and forbid unlicensed persons from running boats or ferries without such license. This also is only the establishment of a public way, and it can make no difference whether or not the water is entirely within the State, or, on the other hand, is a highway for interState or foreign commerce.2

See this subject fully considered in the Wheeling Bridge Case, 13 How. 518. See also Columbus Insurance Co. v. Peoria Bridge Co., 6 McLean, 72; Same v. Curtenius, ib. 209; Jolly v. Terre Haute Draw-Bridge Co., ib. 237 ; U. S. v. New Bedford Bridge, 1 W. & M. 401; Commissioners of St. Joseph Co. v. Pidge, 5 Ind. 13.

2

Conway v. Taylor's Ex'r, 1 Black, 603; Chilvers v. People, 11 Mich. 43.

5. The State may also authorize the construction of dams across * navigable waters; and where no question [* 594] of Federal authority is involved, the legislative permission

to erect a dam will exempt the structure from being considered a nuisance, and it would seem also that it must exempt the party constructing it from liability to any private action for injury to navigation, so long as he keeps within the authority granted, and is guilty of no negligence.2

6. To the foregoing it may be added that the State has the same power of regulating the speed and general conduct of ships or other vessels navigating its water highways, that it has to regulate the speed and conduct of persons and vehicles upon the ordinary highway; subject always to the restriction that its regulations must not come in conflict with any regulations established by Congress for the foreign commerce or that between the States.3

It would be quite impossible to enumerate all the instances in which police power is or may be exercised, because the various cases in which the exercise by one individual of his rights may conflict with a similar exercise by others, or may be detrimental to the public order or safety, are infinite in number and in variety. And there are other cases where it becomes necessary for the public authorities to interfere with the control by individuals of their property, and even to destroy it, where the owners themselves have In both these cases the State license law was sustained as against a vessel enrolled and licensed under the laws of Congress. And see Fanning v. Gregorie, 16 How. 534. Ferry rights may be so regulated as to rates of ferriage, and ferry franchises and privileges so controlled in the hands of grantees and lessees, that they shall not be abused to the serious detriment or inconvenience of the public. Where this power is given to a municipality, it may be recalled at any time. People v. Mayor, &c., of New York, 32 Barb. 102.

1 Wilson v. Black Bird Creek Marsh Co., 2 Pet. 245; Brown v. Commonwealth, 3 S. & R. 273; Bacon v. Arthur, 4 Watts, 437; Hogg v. Zanesville Co., 5 Ohio, 410; Neaderhouser v. State, 28 Ind. 257. And see Flanagan v. Philadelphia, 42 Penn. St. 219; Depew v. Trustees of W. and E. Canal, 5 Ind. 8; Woodburn v. Kilbourne Manuf. Co., 1 Bissell, 546; Hinchman v. Patterson, &c., R.R. Co., 2 Green (N. J.), 75.

See Bailey v. Philadelphia, &c., R.R. Co., 4 Harr. 389; Roush v. Walter, 10 Watts, 86; Parker v. Cutler Mill Dam Co., 7 Shep. 353; Zimmerman v. Union Canal Co., 1 W. & S. 346; Depew v. Trustees of W. and E. Canal, 5 Ind. 8.

3 People v. Jenkins, 1 Hill, 469; People v. Roe, 1 Hill, 470. As to the right to regulate fisheries in navigable waters, see Gentile v. State, 29 Ind. 409; Phipps v. State, 22 Md. 380; People v. Reed, 47 Barb. 235.

fully observed all their duties to their fellows and to the State, but where, nevertheless, some controlling public necessity demands the interference or destruction. A strong instance of this description is where it becomes necessary to take, use, or destroy the private property of individuals to prevent the spreading of a fire, the ravages of a pestilence, the advance of a hostile army, or any other great public calamity.1 Here the individual is in no [* 595] degree in *fault, but his interest must yield to that 66 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.2 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. 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.*

So a particular use of property may sometimes be forbidden, where, by a change of circumstances, and without the fault of the

1 Saltpetre Case, 12 Coke, 13; Mayor, &c., of New York v. Lord, 18 Wend. 129; Russell v. Mayor, &c., of New York, 2 Denio, 461; Sorocco v. Geary, 3 Cal. 69; Hale v. Lawrence, 1 Zab. 714; American Print Works v. Lawrence, ib. 248; Meeker v. Van Rensselaer, 15 Wend. 397; McDonald v. Redwing, 13 Minn. 38; Dillon, Mun. Corp. §§ 756-759. And see Jones v. Richmond, 18 Grat. 517, for a case where the municipal authorities purchased and took possession of the liquors of a city about to be occupied by a capturing military force, and destroyed it to prevent the disorders that might be anticipated from free access to intoxicating drinks under the circumstances. And as to appropriation by military authorities, see Harmony v. Mitchell, 1 Blatch. 549; s. c. in error, 13 How. 115.

2 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.

3 Commonwealth v. Alger, 7 Cush. 53. See Hart v. Mayor, &c., of Albany, 9 Wend. 571.

• Commonwealth v. Tewksbury, 11 Met. 55.

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.2 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; or the keeping for sale unwholesome *provisions, or other deleterious substances, are all sub- [* 596] ject 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,5 and even though in their origin they may have been permitted or licensed by law.6

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

1 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; ante, 584, and cases cited in note.

2 Brick Presbyterian Church v. Mayor, &c., of New York, 5 Cow. 538; Coates v. Mayor, &c., of New York, 7 Cow. 604; Kincaid's Appeal, 66 Penn. St. 411; s. c. 5 Am. Rep. 377. And see ante, 584, note.

3 Foote v. Fire Department, 5 Hill, 99; Williams v. Augusta, 4 Geo. 509. And see License Cases, 5 How. 589, per McLean, J.; Fisher v. McGirr, 1 Gray, 27, per Shaw, Ch. J.

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 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.

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.

6 See cases of repealing licenses, ante, p. 283 and note.

may be resorted to for the purpose of gaming;1 or forbid altogether the keeping of implements made use of for unlawful games; or prevent the keeping and exhibition of stallions in public places.2 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.3 So the markets are regulated, and particular articles allowed to be sold in particular places only, or after license; weights and measures are established, and dealers compelled to conform to the fixed standards under penalty, and persons following particular occupations of a nature requiring special public supervision, such as auctioneers, draymen, hackmen, hucksters, victuallers, and the like, are required to take out licenses, and to conform to such rules and regulations as are deemed important for the public convenience and protection. These instances are more than sufficient to illustrate the pervading nature of this power, and we need not weary

1 Tanner . Trustees of Albion, 5 Hill, 121; Commonwealth v. Colton, 8 Gray, 488; State v. Hay, 29 Me. 457; State v. Freeman, 38 N. H. 426. 2 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.

3 Specht v. Commonwealth, 8 Penn. St. 312; City Council v. Benjamin, 2 Strobh. L. 508; State v. Ambs, 20 Mo. 214; St. Louis v. Cafferata, 24 Mo. 94; 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; Hudson v. Geary, 4 R. I. 485; Frolickstein v. Mobile, 40 Ala. 725.

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. S. 550. The power is continuing, and markets once established may be changed at the option of the authorities, and they cannot even by contract deprive themselves of this power. Gale v. Kalamazoo, 23 Mich. 344; Gall v. Cincinnati, 18 Ohio, N. s. 563; Cougot v. New Orleans, 16 La. An. 21.

5 Guillotte v. New Orleans, 12 La. An. 432; Page v. Fazackerly, 36 Barb. 392; Raleigh v. Sorrell, 1 Jones, L. 49; Dillon, Mun. Corp. §§ 323, 324, and cases cited.

Commonwealth v. Stodder, 2 Cush. 562; Dillon, Mun. Corp. §§ 291–296. As to license fees, and when they are taxes, see ante, 201, 495; Mayor, &c., of Mobile v. Yuille, 3 Ala. 139. The sale of pure milk and pure water mixed may be made a penal offence. Commonwealth v. Waite, 11 Allen, 264. As to market, regulations in general, see Wartman v. Philadelphia, 33 Penn. St. 202; Spaulding v. Lowell, 23 Pick. 71; Gall v. Cincinnati, 18 Ohio, N. s. 563; Municipality v. Cutting, 4 La. An. 335; Dillon, Mun. Corp. §§ 313-318.