The opinion above quoted adopts as the principle upon which it is proposed to stand, "That the equality secured to the citizen cannot be exercised to the damage of the lives and property of others; nor can property be acquired, enjoyed, and disposed of to the peril of the lives, health, happiness, and property of others." And this is not denied, for the reason that any other rule would produce inequality. But, we may add as the converse of this proposition, and in support of the other side of the case, that the right of the public to the preservation of its morals, health, happiness, &c., &c., cannot be enjoyed to the exclusion of the enjoyment of the right of property, because the same inequality would be thereby introduced. Yet this is the exact effect of the opinion quoted above, for the court in the same breath proceed to say, that an act which provides for, and produces precisely these consequences, is not in conflict with any constitutional provision.

We think the act in question does provide that one citizen or class of citizens may enjoy his or their rights under the constitution to the damage and even exclusion of other citizens or classes of citizens in the enjoyment of their rights. To illustrate, let it be supposed that the whole community is divided into two classes, one of moral character and the other of immoral character in the sense of this act.

Does not the act in question say in unmistakable terms, that the portion of

moral shall enjoy their rights of property, health, happiness, public morals, &c., &c., to the exclusion of the other portion's right of property in intoxicating liquors? We think it does most clearly. The theory of the act is, that the right of property in intoxicating liquors cannot be enjoyed in any manner by a man of bad moral character, as contemplated by the act, without interfering with the moral portion of the community in the enjoyment of their rights to the preservation of the public morals, public health, &c., and in order to protect the latter the legislature of Iowa have undertaken to destroy the former, by saying that the immoral man shall not enjoy the right of property in intoxicating liquors at all. This is precisely what the court, in the foregoing opinion, have said cannot be done, with reference to the right of the citizen to the enjoyment of health, preservation of public morals, &c.

We agree with the court as to the breadth and design of the constitutional provision referred to.

It was intended to secure the right of property to all, and in every kind of recognised property. It was also in tended to secure the right of the citizen and the public to the preservation of the public health, public morals, peace, quiet, happiness, &c., &c.

Clearly it

What then is to be done? is the duty of the legislature, in the exercise of the police power of the state, to secure by appropriate legislation the enjoyment of all of these rights. It is as important that the right of the citizen to acquire and dispose of property should be protected, as that any other right should be. And to abolish the right to acquire and dispose of any one kind of property, even though it be in good faith to secure the more complete enjoyment of some other right, is just as much beyond the power of the legislature, as

it would be, to abolish the constitution in toto. Each right defined by the Bill of Rights is as sacred and inviolable as each other right therein defined, and to make any one yield to another, is to lay the foundation for that loose and irregular form of government which it was the design of the constitution, and of society organizing government, to prohibit. Something was wanted to define and secure certain natural, fundamental, and inviolable rights. It was thought that a written constitution would do this, but if the legislature, under pretence of more perfectly securing one of such rights, may abolish others, then the whole scheme is a failure.

We believe that the legislature have no such power, that all of the rights defined by the constitution are intended to stand together, that they should be reconciled into harmony and concord with each other, and that the police power of the state can only be exercised to carry out this purpose. It is the duty of the legislature (and of course within the power before-mentioned) to regulate, to prescribe the mode and the manner of enjoying these rights, and in doing so, the right may be very seriously affected, though a substantial right must be left in all cases. The police power is exhausted when it has done this. It cannot be extended to the abolition of the right itself, for if it could, the Bill of Rights would be subordinate to that vague and undefined power, and at the mercy of a legislature elected by a mere majority.

The principle is very concisely stated by JOHNSON, J., in Wynehamer v. The People, 3 Kernan 421; where it is said, "The same sort of question is presented in respect to the infringement by legislation of men's private rights, and the regulation of them, and their enjoyment. The substantial right cannot be destroyed; its enjoyment is not an offence, and legislation cannot make it an offence. At the same time the mode of enjoyment

in its broadest sense, is subject to legis lation, though it (the right) be affected very injuriously, provided a substantial right is left."

Does the act in question, under the construction given, leave a substantial right of property in intoxicating liquors to Ruth? We think not.

The same question arises under statutes that affect the remedy on contracts, with reference to that provision of the Constitution of the United States which forbids the legislature to impair the obligation of contracts by law. The legis lature may regulate the remedy, and may alter and abridge it so as to affect the value of the contract very materially "so long as they (contracts) are submitted to the ordinary and regular course of justice, and the existing remedies preserved in substance and with integrity: Holmes v. Lansing, 3 John. Cas. 75: Morse v. Gould, 1 Kern. 281.

The substantial right guarantied by the Constitution of the United States, to the citizen to enforce the obligation of his contract must not be destroyed by the legislature.

Again, the same question arises under statutes which assume to regulate the exercise of corporate franchises. The legislature may regulate the mode and the manner of enjoying the rights conferred by the charter, but it cannot destroy the charter itself or any essential right under it.

Thus, in Benson v. Mayor, &c., 10 Barb. 45, the court say, "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 ferries, 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 legitin ate rents and profits."

Why? Because the right of the city to the ferries and their legitimate rents

and profits was fixed by charter or contract, the obligation of which was held sacred by the constitution. If the legislature cannot destroy the rights of a corporation under a contract, the obligation of which is secured by the constitution for the preservation of the lives, safety, and comfort of the public, upon what principle can it destroy the rights of an individual whose rights are directly secured by the constitution?

The opinion of the Supreme Court of Iowa seems to be predicated upon the idea that the police power of the state is some extraordinary power which exists independent of the constitution, and which may be exercised by the legislature when the "public good" requires it in opposition to the constitution.

The true rule is, however, that whatever cannot be accomplished without an infraction of the constitution cannot be considered a "public good," and is in contemplation of law a public calamity when accomplished.

The police power of the state is derived from the constitution, and is no more than a power to carry out and enforce each and all of its provisions, and in no sense is it a power to destroy, when in the opinion of the legislature the "public good" or the "public morals" require it.

In the case of Barker v. People, 3 Cow. 686, the court said: ***“ "The whole constitution must be supported, and all its powers reconciled into concord. A law which should declare it a crime to exercise any fundamental right of the constitution (as the right of acquiring and disposing of property, we add) would infringe an express rule of the system, and hence is not within the general power over crimes." *

**

*

Many rights are plainly expressed and intended to be inviolable in all circumstances. A law enacting that a criminal should, as a punishment for his offence, forfeit the right of trial by

jury, would contravene the constitution, and a deprivation of this right could not be allowed in the form of a punishment. Any other right thus secured as universal and inviolable, must equally prevail against the power of the legislature to select and prescribe punishments."

From this case we see that the legislature, in the exercise of its plenary power over crimes and punishments, could not do what the legislature of Iowa has undertaken to do by the act in question. The legislature cannot declare it to be a crime to exercise the right of acquiring and disposing of property, nor can it declare a forfeiture of the right as a punishment for any other offence. Still, the exercise of the right in a particular manner may be declared a crime, or may be forfeited as a punishment for some other crime, so long as the substantial right itself is not declared forfeited or made criminal. It is upon this principle that all regulation rests. The legislature may prohibit sales of intoxicating liquors to be used as a beverage, for such legislation only goes to the manner of enjoying the right. The right can be "substantially" enjoyed without such sales. And the same rule we understand to apply to all other kinds of property, which under certain circumstances are acknowledged to be dangerous to the well-being of society.

The court say, in the foregoing opinion, that "certain poisons are property, but the sale of them may be restricted to certain persons, namely, those having sufficient intelligence to know when they ought to be used, and sufficient character for prudence to give assurance that these deadly agents will not be carelessly administered." This proposition is not denied, for it also only goes to the manner of enjoying the right, and is therefore not a parallel case. If the party desiring to "acquire, possess, and dispose of these deadly agents" does not himself possess the requisite qualifica

tion, he can still enjoy the right "substantially," by employing some one possessed of the proper qualifications, to handle the property for him. Such legislation would undoubtedly affect the right, but it does not destroy it. It does not necessarily preclude the citizen from "buying and selling" to require him to buy and sell in a certain manner.

The legislature of the state in the exercise of the police power, to secure to all the substantial enjoyment of all the rights defined by the constitution, can compel the enjoyment by every individual of his rights in a manner not to conflict with others in the equal enjoyment of their rights, not however legislating upon the manner, so as to destroy the substantial right.

"Sic utere tuo ut alienum non lædas" is the maxim which lies at the foundation of the power. And to whatever enactment the maxim will not apply the power itself does not extend: Cooley Constitutional Limitations 577.

According to the foregoing opinion, however, it is not sufficient that the citizen should so enjoy his own rights as not to interfere with others in the enjoyment of theirs. But an immoral man must not enjoy certain of his rights at all. Not, indeed, because such enjoyment will necessarily interfere with others in the

enjoyment of their rights, but because he may abuse the right.

If such a proposition can be maintained, then there is no right that is beyond the control of the legislature, for we may, and indeed all do, abuse almost every right that we enjoy. All the legislature can do is to prohibit the abuse, and punish us for a violation of the prohibition. No other theory is at all consistent with civil liberty.

Many other authorities might be cited in support of the foregoing views, but it is scarcely necessary. A moment's reflection on the practical application of the rule as stated in the opinion, in support of which no authorities are cited by the court, we think, will show that the doetrine cannot be maintained. The opinion is plainly inconsistent with itself, for the reason that the principle which the court states as the authority for protecting the public in the enjoyment of its health, comfort, morals, &c., &c., unless violated, will protect every individual, in some measure at least, of enjoy. ment of the right of property in intoxicating liquors, and every other kind of property as well. Such a substantial enjoyment is prohibited, however, to Ruth, by the statute in question and the opinion quoted above.

W. W. M.