§ 142. Subject to Federal Constitution. All-embracing and penetrating as the police power of the State is, and of necessity must be, it is nevertheless subject, like all other legislative powers, to the The legislature may, it seems, pass an act limiting the height of dwelling-houses in cities. The New York act of 1885 construed not to extend to buildings designed for hotels. People v. D'Oench, 111 N. Y. 359 (1888). In the case of the Boston Beer Co. v. Massachusetts, 97 U. S. 25 (1877), Mr. Justice Bradley, speaking for the court, said: "Whatever differences of opinion may exist as to the extent and boundaries of the police power, and however difficult it may be to render a satisfactory definition of it, there seems to be no doubt that it does extend to the protection of the lives, health, and property of the citizens, and to the preservation of good order and the public morals." See also New Orleans Gas Co. v. Louisiana Light Co. 115 U. S. 650, 661 (1885). Prohibitory liquor laws valid. Bartemeyer v. Iowa, 18 Wall. 129 (1873); Foster v. Kansas, 112 U. S. 201 (1884); Kidd v. Pearson, 128 U. S. 1 (1888); Mugler v. Kansas, 123 U. S. 623 (1887); Bowman v. Railway Co., 125 U. S. 465 (1888), sustaining a statute of a State prohibiting common carriers from bringing intoxicating liquors into the State without first having a certificate from the county auditor that the consignee is authorized to sell in the county. See also Fertilizing Co. v. Hyde Park (village of), 97 U. S. 659 (1878). In the last case Mr. Justice Swayne says: "Perhaps the most striking application of the police power is in the destruction of buildings to prevent the spread of a conflagration. This right existed by the common law, and the owner was entitled to no compensation. 2 Kent's Com. 339 (marg. paging), and notes 1 and a and b." Post, chap. xxiii. It is within the police power of the State to authorize the channel of a river to be turned or straightened, in order to protect from threatened inundation a populous portion of the State; and such work is of a public character. Green v. Swift, 47 Cal. 536 (1874). In such case, the authority of the State is none the less in degree, even if the inhabitants of the district to be protected did not constitute a body politic. Ib. A power "to make and establish rules for the regulation of jut or bay windows" does not authorize the council to pass an ordinance granting permission to an individual to construct a bay window projecting beyond the building line. Reimer's Appeal, 100 Pa. St. 182. See post, secs. 660, 734. Speaking of turnpike acts, paving acts, &c., Lord Kenyon, in the case of the Governor &c. v. Meredith, 4 Term Rep. 790, 796, says: "Some individuals suffer an inconvenience under all these acts of parliament; but the interests of individuals must give way to the accommodation of the public." And per Buller, J., in the same case: "There are many cases in which individuals sustain an injury, for which the law gives no action; for instance, pulling down houses, or raising bulwarks, for the preservation and defence of the kingdom against the king's enemies." But "the law will not allow the right of property to be invaded under the guise of a police regulation for the preservation of health, when it is manifest that such is not the object and purpose of the regula tion." Per Wilde, J., in Austin v. Murray, 16 Pick. 126; Green v. Savannah, 6 Ga. 1 (1849); People v. Hawley, 3 Mich. 330; Ames v. P. H. L. Co., 11 Mich. 139. The extent of the police power will be further discussed in the chapter on Ordinances, post. 594. See also Cooley, Const. Lim. 572How far and when cities, in executing police duties, are agents of the State, and not of the municipality. See Buttrick v. Lowell, 1 Allen (Mass.), 172; Mitchell v. Rockland, 51 Me. 118, 122; 52 Me. 118; Brown v. Vinalhaven, 65 Me. 402 (1876); Keller v. Corpus Christi, 50 Tex. 614, approving text; State v. St. Louis Court, 34 Mo. 546; White v. Kent, 11 Ohio St. 550; Thomas v. Ashland, 12 Ohio St. 127; City Council v. Payne, 2 Nott & McCord (S. C.), 475; People v. Hurlbut, 24 Mich. 44 (1871); s. c. 9 Am. Rep. 103; ante, sec. 60; post, secs. 253, 393, 396, 768. paramount authority of the State and Federal Constitutions. A right conferred or protected by the Constitution cannot be overthrown or impaired by any authority derived from the police power. Thus the police power of the State must be exercised in subordination to the Federal Constitution, and, as was held by the Supreme Court of the United States, in respect of State laws forbidding the transportation of Texas cattle, it cannot extend to interstate transportation of the subjects of commerce.1 In a subsequent case 2 the rights claimed by a private corporation, chartered by an act of the legislature, and authorized by its charter to establish and carry on a business which was intrinsically and unavoidably a nuisance to the inhabitants in the neighborhood,3 came in conflict with the police power of the State, subsequently delegated to a municipality within whose limits the offensive and unhealthy business of the private corporation was conducted. The subject was thoroughly considered. The court did not deny that by a specific contract the legislature might surrender for a limited period the right to interfere with a business which was a positive nuisance. On the ground, however, that the private corporation, when its charter was tested by the principles of strict construction applicable to such grants, had no specific legislative 1 Railroad Co. v. Husen, 95 U. S. 465 (1877). In Kimmish v. Ball, 129 U. S. 217 (1889), an Iowa statute making persons having "Texas cattle" in their possession which have not been wintered north of a certain point, liable for damages which may accrue from allowing them to run at large, and thereby spread "Texas fever," was sustained. 2 Fertilizing Co. v. Hyde Park (village of), 97 U. S. 659 (1878). 8 The Fertilizing Company obtained by its charter from the State (which was a legislative contract), for the period of fifty years, three rights, among others; first, a right to establish and maintain at a place in Cook County, south of the dividing-line between townships thirty-seven and thirtyeight, works for converting offal and animal matter; and the works had been established there at a cost of more than two hundred thousand dollars; second, they obtained the right to establish receiving depots for receiving and carrying such matter from Chicago; and third, they obtained the right to carry such matter from their receiving depots to their converting works in Hyde Park. Under legislative authority to maintain its works authority subsequently conferred upon it the municipality of Hyde Park passed an ordinance absolutely prohibiting the transportation of offal through the village. The majority opinion sustaining the ordinance is based upon two propositions: 1. That the chartered rights of the Fertilizing Company were subject to the police power of the State, which was delegated to the municipal authorities. 2. The charter of the company is not a contract guaranteeing in the locality originally selected, exemption for fifty years from the exercise of the police power of the State, however serious the nuisance might become in the future, by reason of the growth of population around it. Mr. Justice Miller limited his judgment to a concurrence on the second point, and denied the first. Strong, J., dissented. Field, J., did not sit. Critically viewed, the case is perhaps only an authoritative decision on the second ground, since it is relied on in both concurring opinions, and is amply sufficient to sustain the judgment, which affirmed that of the Supreme Court of Illinois 4 Ante, secs. 89-91, and cases. on the site where they were established, if not, indeed, on the broader ground that all legislative charters to private corporations are subordinate to the police power in all cases whatsoever, or, at all events, in all cases except where it is otherwise provided by the express terms of the contract, or by what is necessarily implied, the municipal ordinances to abate the nuisance were sustained, although the corporation had erected expensive works, and the effect of enforcing the ordinance would be to prevent the further carrying on of the business in that locality. Similar results in favor of the police power as against alleged vested rights under charters have been reached in other cases.1 1 Coates v. Mayor, &c. of New York, 7 Cow. 585 (1826), referred to in the case of the Fertilizing Co. v. Hyde Park, supra, and thus stated by Swayne, J.: In Coates v. The Mayor, &c. of New York, 7 Cow. 585, a law was enacted by the legislature of the State, on the 9th of March, 1813, which gave to the city government power to pass ordinances regulating, and if necessary preventing, the interment of dead bodies within the city; and a penalty of $250 was authorized to be imposed for the violation of the prohibition. On the seventh of October, 1823, an ordinance was adopted forbidding interments or the depositing of dead bodies in vaults in the city south of a designated line. A penalty was prescribed for its violation. The action was brought to recover the penalty for depositing a dead body in a vault in Trinity church-yard. A plea was interposed setting forth that the locus in quo was granted by the King of Great Britain on the 6th of May, 1697, to a corporation by the name of the "Rector and Inhabitants of the City of New York in Communion with the Protestant Episcopal Church of England," and their successors forever, as, and for a church-yard and burying place, with the rights, fees, &c.; that immediately after the grant the land was appropriated and thenceforward was used as and for a cemetery for the interment of dead bodies; that the rector and wardens of Trinity Church were the same corporation, and that the body in question was deposited in the vault in the churchyard by the license of that corporation. A general demurrer was filed, and the case was elaborately argued. The validity of the ordinance was sustained. The court held that "the act under which it was passed was not unconstitutional, either as impairing the obligation of contracts, or taking property for public use without compensation, but stands on the police power to make regulations in respect to nuisances.” It was said: "Every right, from absolute ownership in property down to a mere easement, is purchased and holden subject to the restriction that it shall be so exercised as not to injure others. Though at the time it be remote and inoffensive, the purchaser is bound to know at his peril that it may become otherwise by the residence of many people in its vicinity, and that it must yield to by-laws and other regular remedies for the suppression of nuisances." In such cases prescription, whatever the length of time, has no application. Every day's continuance is a new offence, and it is no justification that the party complaining came voluntarily within its reach. Pure air and the comfortable enjoyment of property are as much rights belonging to it as the right of possession and occupancy. If popu lation, where there was none before, approaches a nuisance, it is the duty of those liable at once to put an end to it. Brady v. Weeks, 3 Barb. (N. Y.) 157. Post, sec. 372. Cemetery associations and their franchises are subject to regulation under the police power. Cemetery Ass. v. Railroad Co., 121 Ill. 199 (1887). So where a city had conveyed land to individuals for the purpose of erecting powder magazines thereon, and afterwards passed an ordinance declaring the magazines so erected dangerous to life and property, and direct § 143 (94). Prevention of Fires. The prevention of damage by fire is usually an object within the scope of municipal authority either by express grant or by the power, in a chartered town or city, to make police regulations or needful by-laws. Under such power, it may establish fire limits,1 prevent the erection of wooden buildings, regulate the mode and removal of ashes, and make any other reasonable regulations to prevent and extinguish fires. Under such power the town or municipal body is authorized to appropriate money for the purchase of engines, or for the repair thereof, if to be used for the purpose of extinguishing fires therein; and this, whether they belong to the corporation or were purchased by private subscription. And money may also be appro ing them to be removed at the expense of the owners, it was held that the ordinance was a valid exercise of the police power, and did not impair the obligation of the contract under the deed, nor was it a tak ing of private property without compensation. Davenport v. Richmond City, 81 Va. 636 (1887). So in the case of the Boston Beer Company, where the legisla ture of Massachusetts, on the 1st of February, 1827, incorporated the "Boston Beer Company," "for the purpose of manufacturing malt liquors in all their varieties in the city of Boston," &c. By an act of June, 1869, the manufacture of malt liquors to be sold in Massachusetts, and brewing and keeping them for sale, were prohibited under penalties of fine and imprisonment and the forfeiture of the liquors to the Commonwealth. In The Boston Beer Co. v. The Commonwealth, the Supreme Court of Massachusetts held that "the act of 1869 did not impair the obligations of the contract contained in the charter of the claimant, so far as it relates to the sale of malt liquors, but is binding on the claimant to the same extent as on individuals. The act is in the nature of a police regulation in regard to the sale of a certain article of property, and is applicable to the sale of such property by individuals and corporations, even where the charter of the corporation cannot be altered or repealed by the legislature." This judgment was affirmed by the Supreme Court of the United States, 97 U. S. 25. The question whether certain require ments are a part of a system of police regulation adapted to aid in the protec tion of life and health, is properly one of legislative determination, and a court should not lightly interfere with such determination, unless the legislature has manifestly transcended its province. Dan. iels v. Hilgard, 77 Ill. 640 (1875). 1 Post, sec. 405. 3 Many fires are said to be "acciden tal" which are the result of neglect to keep ashes in fire-proof utensils; and yet regulations for the safe keeping of ashes are seldom made, and when made, rarely enforced. Filbey v. Combe, 2 M. & W. 677; Law v. Dodd, 1 Ex. 845; Lyndon v. Stadbridge, 2 H. & N. 45. See further, The Queen . Wood, 5 E. & B. 49; Guardians of Holborn Union v. Vestry of St. Leonard, Shoreditch, L. R. 2 Q. B. Div. 145; Gay v. Cadby, L. R. 2 C. P. Div. 391; Harrison's Munic. Manual, 4th ed.; Clark v. South Bend, 85 Ind. 276 (ordinance regulating the storage of straw). 4 Allen v. Taunton, 19 Pick. 485 (1837). Hunneman v. Fire District, 37 Vt. 40; Robinson v. St. Louis, 28 Mo. 488 (repair of engine-house); Wadleigh v. Gill. man, 12 Me. 403; Vanderbilt v. Adams, 7 Cow. 349, 352; post, secs. 405, 572 n., 690, chap. xxiii. Text approved. Green v. Cape May, 41 N. J. L. 45. A town possesses implied power, in the absence of express legislative enactment, to purchase fire-engines. Bluffton v. Studabaker, 106 Ind. 129; Carleton v. Washington, 38 Kan. 726; Bridgford v. Tuscumbia, 16 Fed. Rep. 910. priated for the benefit of engine and hook and ladder companies therein.1 § 144 (95). Quarantine and Health; Scope of Power to preserve the Public Health. The preservation of the public health and safety is often made in express terms a matter of municipal duty, and it is competent for the legislature to delegate to municipalities the power to regulate, restrain, and even suppress, particular kinds of business, if deemed necessary for the public good.2 The subject will be considered more in detail in the chapter on Ordinances.3 The general nature and scope of the authority, as it is not unfrequently bestowed, are well illustrated by a case in Maryland. By its charter the city of Baltimore was vested with "full power and authority to enact all ordinances necessary to preserve the health of the city, prevent and remove nuisances, and to prevent the introduction of contagious diseases within the city and within three miles of the same." Commenting on this provision of the charter, the Court of Appeals say: "The transfer of this salutary and essential power is given in terms as explicit and comprehensive as could have been used for such a purpose. To accomplish, within 1 Van Sicklen v. Burlington, 27 Vt. (1 Wms.) 70 (1854). Approving Allen v. Taunton, supra. See post, chapter on Ordinances. Power of council over fire companies, and to appoint officers therefor. See Miller v. Savannah Fire Co., 26 Ga. 678. The protection of all the buildings in a city or town from destruction or injury by fire is for the benefit of all the inhabitants, and for their relief from a common danger; and cities and towns are therefore authorized by general law in Massachusetts to provide and maintain fire engines, reservoirs, and hydrants to supply water for the extinguishment of fires. Allen v. Taunton, 19 Pick. 485; Hardy v. Waltham, 3 Met. 163; Fisher v. Boston, 104 Mass. 87; Tainter v. Worcester, 123 Mass. 311. The question whether and where public hydrants should be erected is within the exclusive control of the municipal authorities, as the public interests may from time to time require; and such municipality does not assume any liability to the owners of property to furnish means of extinguishment of fires upon which an action can be maintained. Grant v. Erie, 69 Pa. 420; Wheeler v. Cincinnati, 19 Ohio St. 19; Brinkmeyer v. Evansville, 29 Ind. 187; Fisher v. Boston, 104 Mass. 87; Hill v. Boston, 122 Mass. 344. The mere fact that a volunteer fire association renders services in extinguishing fires imposes no obligation upon a municipal corporation to pay its members therefor. Jacksonville v. Ætna Fire Engine Co., 20 Fla. 100. Post, sec. 976 and cases. 2 Shrader, In re, 33 Cal. 279 (1867); Ashbrook v. Commonwealth, 1 Bush (Ky.), 139 (1866); Tucker v. Virginia City, 4 Nev. 20; Johnson v. Simonton, 43 Cal. 242 (1872). Aaron v. Broiles, 64 Tex. 316; post, chap. xxiii. The power of the State to protect the public health cannot be surrendered; but a municipality entrusted with the execution of this power may make contracts to accomplish the purpose, and while the State or the municipality may recall or modify such contracts, they cannot do so from mere caprice or to gain pecuniary advantage. ville v. Wible, 84 Ky. 290, where a contract giving the exclusive right to remove dead animals for five years was held valid. 8 Post, secs. 369 et seq., 374-378. Louis |