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So when the court states as a reason for granting a certificate of probable cause of seizure by the collector, that the seizure was made by the direction of his superior officer, this statement is irrelevant and superfluous. The certificate of probable cause is all there is of it. The residue of the sentence is out of the case. The unusual form of the certificate should work no prejudice to the rights of the defendant.

The statute we have cited provides that, when such certificate shall be made, neither the party making the seizure nor the prosecutor shall be liable to action on account of such seizure or prosecution. The collector who made the seizure has been certified not to be liable, and the present defendant, the party directing the seizure, that is, the prosecutor, is equally entitled to exemption.

Generally, it is the duty of the district attorney of the United States to prosecute for all violations of the customs revenue laws, or the internal revenue laws of the country. R. S., sec. 838. No doubt he falls within the protection of this Statute of 1799, as does the Collector of Customs, who is expressly authorized by the Act of 1796 to direct actions to be commenced to recover the penalties for the violations in that Act specified.

Supervisors of Internal Revenue are authorized to be appointed by the Act of July 20, 1868. 15 Stat. at L., 143, 144. It was made a part of their duty To see that all laws and regulations relating to the collection of internal taxes are faithfully executed and complied with, to aid in the prevention, detection and punishment of any frauds in relation thereto."

It was in the discharge of this duty to see that the laws were faithfully executed, and to aid in the detection and punishment of frauds, that the defendant gave the direction complained of.

We are of the opinion that this officer, equally with the district attorney and Customs Collector, is entitled to the protection given by the Act of 1799.

the person is guilty." Ulmer v. Leland, 1 Me.. 135.

In Foshay v. Ferguson, 2 Den., 617, the rule is laid down by Ch. J. Bronson, in the same language, with this addition: "And such cause will afford a defense to a malicious prosecution however innocent the plaintiff may be." In that case, there was evidence to justify a finding that the prosecution had been from a bad motive. This rule is so clear, that it is not necessary to multiply authorities.

In the case before us, the certificate was of "probable cause of seizure."

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The authorities we have cited speak of "probable" cause. The Statute of 1799, however, uses the words "reasonable cause of seizure. No argument is made that there is a substantial difference in the meaning of these expressions, and we think there is none. If there was a probable cause of seizure, there was a reasonable cause. If there was a reasonable cause of seizure, there was a probable cause. In many of these reported cases the two expressions are used as meaning the same thing:

Talbot v. Seeman, 1 Cranch, 1; Carrington v. Ins. Co., 8 Pet., 495; U. S. v. Riddle, 5 Cranch, 311; Sixty Pipes of Brandy, 10 Wheat., 421; U. S. v. The Recorder, 2 Blatchf., 119. Although informal in this, as in the terms already referred to, we are of the opinion that the certificate is sufficient to protect a prosecutor, and that the defendant is to be ranked as of that class. The judgment must be affirmed.

I, James H. McKenney, Clerk of the Supreme Court of the United States, do hereby certify that the foregoing is a true copy of the opinion of the Court in the case of J. E. Stacey. Piff. in Err., v. G. W. Emery, Supervisor of Internal Revenue, No. October Term, 1878, as the same remains upon the files and records of said Supreme Court.

In testimony whereof, I hereunto subscribe my name, and affix the seal of said [L. S.] Supreme Court, at the City of Washington, this 20th day of March, A. D. 1885. JAMES H. MCKENNEY,

The complaint alleges that the seizure of the goods was illegal, and wrongful and malicious, and it is now contended secondly that a certificate of probable cause affords no protection THE where the seizure is malicious.

This is an error. The question of malice or good faith is not an element in the case. It is

Clerk, Supreme Court, U. S.

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M. CADY ET AL.

(See S. C., 7 Otto, 659-682.)

not a question of motive. If the facts and cir- VILLAGE OF HYDE PARK, CHAUNCEY cumstances before the officer are such as to warrant a man of prudence and caution in believing that the offense has been committed, it is sufficient. Whether the officer seized the occasion to do an act which would injure another, or whether he moved reluctantly, is quite immaterial.

Construction of charter-state police power-nuisance-fertilizer-village ordinance.

1. Where a right or privilege is claimed under a charter of a corporation, nothing is to be taken as conceded to it, but what is given in unmistakable terms or by an equally clear implication.

Mr. Justice Washington says in Munns v. Dupont, 3 Wash., 37: "If malice is proved, yet if probable cause exists, there is no liability. 2. The police power of the State is adequate to Malice and want of probable cause must both give an effectual remedy against nuisances. 3. Prescription, of whatever length of time, will exist," to justify an action. He then defines not justify a nuisance. Every day's continuance is a probable cause in these words: "A reasonable new offense, and it is no justification that the party ground of suspicion, supported by circumstances complaining came voluntarily within its reach. 4. A charter authorizing the manufacture of anisufficiently strong in themselves to warrant a mal matter into a fertilizer, is not a contract guarcautious man in the belief that the party is antying, in the locality originally selected, exempguilty of the offense with which he is charged." tion from the exercise of the police power of the State, however serious the nuisance might become Chief Justice Shaw defines it in similar language: "Such a state of facts as would lead a NOTE.-Corporations possess only powers conferred man of ordinary caution to believe, or to en:plied. See note to Huntington v. Savings Bk., 96 U. by statute creating them, and those necessarily imtertain an honest and strong suspicion, that | S., ante, 777.

tion around it.

in the future, by reason of the growth in popula- | against a chartered nuisance is denied by the 5. A village, incorporated by a charter authoriz- complainant, and it is said that the State can ing it to abate a nuisance, may by an ordinance only exercise the right of eminent domain and condemn the franchises of the Corporation. The answer to this suggestion is twofold.

abate such nuisance.

[No. 5.]

Argued Oct. 17, 1878.

Decided Nov. 11, 1878.

If Illinois.
N ERROR to the Supreme Court of the State

The case fully appears in the opinion of the

court.

Messrs. Leonard Swett, Matt. H. Carpenter, H. H. Blackburn and W. H. Lamon, for plaintiff in error:

The general principle, that charters of incorporation are contracts within the meaning of the Federal Constitution, is settled beyond controversy.

Dartmouth Coll. v. Woodward, 4 Wheat., 518; Neustadt v. R. R. Co.,31 Ill., 484; Bruffett v. R. R. Co.,25 Ill., 355, Bk. v. Knoop, 16 How., 369; Bk. v. Skelley, 1 Black, 436 (66 U. S., XVII., 173); Bridge Proprs. v. Hoboken Co., 1 Wall.,116 (68 U. S., XVII., 571); Binghamton Bridge Case, 3 Wall., 51 (70 U. S., XVIII.,137); Home of Friendless v. Rouse, 8 Wall., 430 (75 U. S., XIX.,495); Wash. University v. Rouse, 8 Wall., 439 (75 U. S., XIX., 498).

Police regulations must not be in conflict with any of the provisions of the charter of a corporation, and must not, under pretense of regulation, take from the corporation any of the essential rights and privileges which the charter confers.

Cooley, Const. Lim.,577; Gal. & C. R. R. Co. v. Appleby, 28 Ill., 284; Wash. Bridge Co. v. State, 18 Conn., 53; Pingry v. Washburn, 1 Aik., 264; People v. R. R. Co., 9 Mich., 307; People v. Platt, 17 Johns., 195; Bailey v. R. R. Co., 4 Harr. (Del.), 394; Miller v. R. R. Co., 21 Barb., 513; Conway v. Taylor, 1 Black, 612 (66 U. S., XVII., 191); State v. Noyes, 47 Me., 189; State v. Jersey City, 5 Dutch., 170.

Charters which limit the exercise of plainly defined and recognized sovereign powers, have been repeatedly sustained as binding contracts, the obligation of which could not be impaired. New Jersey v. Wilson 7 Cranch, 164; Bk. v. Knoop, 16 How., 369; Home of Friendless v. Rouse (supra); Washington University v. Rouse (supra); Atwater v. Woodbridge, 6 Conn., 223; Herrick v. Randolph, 13 Vt.,525; Bk. v. People, 4 Scam., 303; Ill. Cent. R. R. Co. v. Co. of McLean, 17 Ill., 291; Binghamton Bridge (supra); Bridge Proprs. v. Hoboken Co. (supra); B. & L. R. R. Corp. v. S. & L. R. R. Co., 2 Gray, 2; Conway v. Taylor (supra); Costar v. Brush, 25 Wend., 630; McRoberts v. Washburn, 10 Minn., 23.

If the necessities of the public demand that the appellant's franchise be taken away, the appropriate remedy is by condemnation under the right of eminent domain.

Cooley, Const. Lim.,556 and cases cited; Pis cataqua Bridge v. N. H. Bridge, 7 N. H., 35; Bridge Co. v. Lowell, 4 Gray, 474; Bridge Co. v. Dix, 6 How., 507; Armington v. Barnet, 15 Vt.,745; Water Power Co. v. R. R. Co.,23 Pick., 239; Boston & Lowell R. R. Co. v. Salem & L.R. R. Co., 2 Gray, 1.

Messrs. Charles Hitchcock & Dupee and C. H. Willett, for defendant in error: The right thus to protect the community

First. It is a solecism to talk of taking a nuisance for public use. The public does not need the franchises of the Northwestern Fertilizing Co. It is its destruction and not its use that is desired.

Second. To create a nuisance, and then tax or assess the individual for its abatement, would seem to be a most ingenious as well as effective device for taking property, under the form of taxation, without compensation therefor.

There is as yet no authority to support the position that a Legislature may limit or abandon its power to pass all laws needful to protect the lives and health of the community. It is to be hoped that no such precedent will be made by this court.

The citizen has a natural right to pure air and water; and although the State may take away all remedy, it cannot, by grant, confer the permanent right to pollute them, and thus abandon a most important function of government.

Mr. Justice Swayne delivered the opinion of the court:

This case was brought here by a writ of error to the Supreme Court of the State of Illinois. The alleged ground of our jurisdiction is, that the record presents a question of federal jurisprudence. A brief statement of the facts will be sufficient for the purposes of this opinion.

The plaintiff in error was incorporated by an Act of the Legislature, approved March, 8, 1867. The Act declared that the Corporation should "Have continued succession and existence for the term of fifty years." The 4th and 5th sections are as follows:

“Sec. 4. Said Corporation is hereby authorized and empowered to establish and maintain chemical and other works at the place designated herein, for the purpose of manufacturing and converting dead animals and other animal matter into an agricultural fertilizer, and into other chemical products, by means of chemical, mechanical and other processes.

Sec. 5. Said chemical works shall be established in Cook County, Illinois, at any point south of the dividing line between townships thirty-seven and thirty-eight. Said Corporation may establish and maintain depots in the City of Chicago, in said county, for the purpose of receiving and carrying off, from and out of the said city, any and all offal, dead animals and other animal matter, which they may buy or own, or which may be delivered to them by the city authorities and other persons."

The Company organized pursuant to the charter. Its capital stock is $250,000, all of which has been paid up and invested in its business.

It owns ground and has its receiving depot about three miles from Chicago. The cost of both exceeded $15,000. Thither the offal arising from the slaughtering in the city was conveyed daily. The chemical works of the Company are in Cook County, south of the dividing line of townships 37 and 38, as required by the charter. When put there, the country around was swampy and nearly uninhabited, giving little promise of further improvement. They

are within the present limits of the Village of Hyde Park. The offal procured by the Company was transported from Chicago to its works, through the Village, by the Pittsburg, Fort Wayne and Chicago Railroad. There was no other railroad by which it could be done. The court below, in its opinion, said:

An examination of the evidence in this case clearly shows that this factory was an unendurable nuisance to the inhabitants for many miles around its location; that the stench was intolerable, producing nausea, discomfort, if not sick ness, to the people; that it depreciated the value of property, and was a source of immense annoyance. It is, perhaps, as great a nuisance as could be found or even created; not affecting as many persons as if located in or nearer to the city, but as intense in its noisome effects as could be produced. And the transportation of this putrid animal matter through the streets of the Village, as we infer from the evidence, was offensive in a high degree both to sight and smell."

This characterization is fully sustained by the testimony.

than $50 nor more than $200 for each offense, and to a like fine for each day the establishment or business should be continued after the first conviction.

After the adoption of this ordinance and the expiration of two years from the passage of the Act of 1869, the appellant [plff. in err.] continued to transport offal through the Village as before. Notice was thereupon given to the appellant [plff. in err.] that the ordinance would be enforced. This having no effect, thereafter, on the 8th of January, 1873, the village authorities caused the engineer and other employés of the railway company, who were engaged in carrying the offal through the Village, to be arrested and tried for violating the ordinance. They were convicted and fined each $50. This bill was thereupon filed by the appellant [plff. in err.]. It prays that further prosecutions may be enjoined, and for general relief. The Supreme Court of the State, upon appeal, dismissed the bill.

The plaintiff in error claims that it is protected by its charter from the enforcement against it of the ordinances complained of, and that its charter is a contract within the meaning of the contract clause of the Constitution of the United States. Whether this is so, is the question to be considered.

In March, 1869, the charter of the Village was revised by the Legislature, and the largest powers of police and local government were conferred. The trustees were expressly author- The rule of construction in this class of cases ized to define or abate nuisances which are, is that it shall be most strongly against the Coror may be injurious to the public health"-to poration. Every reasonable doubt is to be recompel the owner of any grocery cellar, tallow solved adversely. Nothing is to be taken as conchandler shop, soap factory, tannery or other ceded but what is given in unmistakable terms, unwholesome place, to cleanse or abate such or by an implication equally clear. The affirmsplace, as might be necessary, and to regulate, tive must be shown. Silence is negation, and prohibit or license breweries, tanneries, pack-doubt is fatal to the claim. This doctrine is ing houses, butcher shops, stock yards, or establishments for steaming and rendering lard, tallow-offal or other substances, and all estab lishments and places where any nauseous, of fensive or unwholesome business was carried

on.

The 16th section contains a proviso that the powers given should not be exercised against the Northwestern Fertilizing Company until after two years from the passage of the Act. This limitation was evidently a compromise by conflicting parties.

On the 5th of March, 1867, a prior Act, giving substantially the same powers to the Village, was approved and became a law. This Act provided that nothing contained in it should be construed to authorize the officers of the Village to interfere with parties engaged in transporting any animal matter from Chicago, or from manufacturing it into a fertilizer or other chemical product. The works here in question were in existence and in operation where they now are before the proprietors were incorpo rated.

After the last revision of the charter the municipality passed an ordinance whereby, among other things, it was declared that no person should transport any offal or other offensive or unwholesome matter through the Village, and that any person employed upon any train or team conveying such matter should be liable to a fine of not less than $5 nor more than $50 for each offense; and that no person should main tain or carry on any offensive or unwholesome business or establishment within the limits of the Village, nor within one mile of those lim its. Any person violating either of these pro visions was subjected to a penalty of not less

vital to the public welfare. It is axiomatic in the jurisprudence of this court. It may be well to cite a few cases by way of illustration. In Rector of Christ Ch. v. Philadelphia Co., 24 How., 301 [65 U. S., XVI., 604], in Tucker v. Ferguson, 22 Wall., 527 [89 U. S., XXII..805], and in R. R. Co. v. Bd. of Supervisors, 93 U. S., 595, XXIII., 814], property had been expressly exempted for a time from taxation. Taxes were imposed contrary to the terms of the exemption in each case. The corporations objected. This court held that the promised for bearance was only a bounty or gratuity, and that there was no contract. In Bk. v. Billings, 4 Pet., 515, the bank had been incorporated with the powers usually given to such institutions. The charter was silent as to taxation. The Legislature imposed taxes. "The power to tax involves the power to destroy." McCulloch v. Maryland, 4 Wheat., 316. The bank resisted, and brought the case here for final determination. This court held that there was no immunity, and that the bank was liable for the taxes as an individual would have been. There is the same silence in the charter here in ques tion as to taxation and as to liability for nuisances. Can exemption be claimed as to one more than the other? Is not the case just cited conclusive as to both?

Continued succession is given to corporations to prevent embarrassment arising from the death of their members. One striking differ ence between the artificial and a natural person is, that the latter can do anything not forbidden by law, while the former can do only what is so permitted. Its powers and immunities de pend primarily upon the law of its creation.

Beyond that it is subject, like individuals, to the will of the law-making power.

If the intent of the Legislature touching the point under consideration be sought in the charter and its history, it will be found to be in accordance with the view we have expressed as matter of law. Three days before the charter of the plaintiff in error became a law, the Legislature declared that the power of the Village as to nuisances should not extend to those en gaged in the business to which the charter relates. The subject must have been fully pres ent to the legislative mind when the Company's charter was passed. If it were intended the exemption should be inviolable, why was it not put in the Company's charter as well as in that of the Village? The silence of the former, under the circumstances, is a pregnant fact. In one case it was doubtless known to all concerned that the restriction would be irrepealable, while in the other, that it could be revoked at any time. In the revised village charter of 1869, the exemption was limited to two years from the passage of the Act. This was equivalent to a declaration that after the lapse of the two years the full power of the Village might be applied to the extent found necessary. Corporations in such cases are usually prolific of promises, and the Legislature was willing to await the event for the time named.

That a nuisance of a flagrant character existed, as found by the court below, is not controverted. 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 en tire property and business within their local jurisdiction. Both are subject to it in all proper cases. It rests upon the fundamental principle that everyone shall so use his own as not to wrong and injure another. To regulate and abate nuisances is one of its ordinary functions. The adjudged cases showing its exercise where corporate franchises were involved are numer

ous.

In Coates v. Mayor, etc., of N. Y.,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 7th of October, 1823, an ordinance was adopted, for bidding interments or the depositing of dead bodies in vaults in the city south of a designated line. A penalty was prescribed for its viola tion. The action was brought to recover the penalty for depositing a dead body in a vault in Trinity churchyard. 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 for ever, as and for a churchyard and burying place, with the rights, fees, etc.; that immediately after the grant the land was appropriated, and thenceforward was used as and for à 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 pur chaser 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 offense, 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 population, 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., 157.

The Legislature of Massachusetts, on the 1st of February, 1828, incorporated the "Boston Beer Company," "for the purpose of manufacturing malt liquors in all their varieties in the City of Boston," etc. 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 Beer Co. v. Com., the Supreme Court of Massachusetts held that "The Act of 1869 does 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 court unanimously affirmed that judgment. In our opinion, 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." The judgment here was placed also upon another ground. This case is not yet reported. Beer Co. v. Mass. [ante, 989].

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, Com., 339 (marg. paging), and notes 1 and a and b. In some of the States it is regulated by statute. Russell v. Mayor of N. Y.,2 Den..461; Am. Print W. v. Lawrence, 3 Zab. (23 N. J. L.), 590.

In the case before us it does not appear that the factory could not be removed to some other place south of the designated line, where it could be operated, and where offal could be conveyed to it from the city by some other railroad, both without rightful objection. The Company had the choice of any point within the designated limits. In that respect there is no restriction.

The charter was a sufficient license until revoked; but we cannot regard it as a contract guarantying, 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. The owners had no such exemption before they were incorporated, and we think the charter did not give it to them.

There is a class of nuisances designated "legalized." These are cases which rest for their sanction upon the intent of the law under which they are created, the paramount power of the Legislature, the principle of "the greatest good of the greatest number," and the importance of the public benefit and convenience involved in their continuance. The topic is fully discussed in Wood on Nuisances, ch. 23, p. 781. See, also, 4 Waite, Actions and Defenses, 728. This case is not within that category. We need not, therefore, consider the subject in this opinion. The decree of the Supreme Court of Illinois is affirmed.

[L. S.]

The nuisance in the case before us was the very subject-matter of the contract. The consideration of the contract was that defendant might and should do certain things which affected the health and comfort of the community; and the Legislature can no more impair the obligation of that contract than they can resume the right of taxation which it has, on valid consideration, agreed not to exercise, because in either case its wisdom has become doubtful.

If the good of the entire community requires the destruction of the appellant's [plffs. in err.] rights under this contract, let the entire community pay for it by condemning it for public

use.

But I agree that contracts like this must be clearly established, and the powers of the Legis. lature can only be limited by the express terms of the contract, or by what is necessarily implied. In the case before us, appellants [plff. inerr.] have two correlative rights in regard to the offal arising from butchery in Chicago. One is to have a place within the city limit where they are permitted to receive it, and the other is to carry it to a place in Cook County, south of the dividing line between townships thirty-seven and thirtyeight. So that they have such depots for receiving in the city, that city or the State Legislature is not forbidden by the contract to locate them where the health of the city requires; in other words, the choice of location within the city is not the appellant's [plffs. in err ]. So in regard to the chemical works. They are, by their contract, entitled to have them in Cook County and south of the line mentioned; but the precise locality within that large space is a fair subject of regulation by the police power of the State, or of any town to which it has been delegated. If within the limits of Hyde Park, that Town may pass such laws concerning its health and comfort as may require this Company to seek another location south of the designated line, without impairing the terms of the contract.

In short, in my opinion, there is within the limits of the original designation of boundary ample space where the appellant [plff. in err.] may exercise the power granted it by the contract, without violating the ordinances of Hyde Park, and those ordinances, as a police regulation of health and comfort, are, therefore, valid, as not infringing the contract under which appellants [plff. in err.] act.

I, James H. McKenney, Clerk of the Supreme Court of the United States, do hereby certify that the foregoing is a true copy of the opinion of the Court in the case of The Northwestern_Fertilizing Company, Plff. in Err., v. Village of Hyde Park, Chauncey M. Cady et al., No. 5, October Term, 1878, as the same remains upon the files and records of It is said that the only railroad by which apsaid Supreme Court. In testimony whereof, I hereunto sub-pellants [piff. in err.] can carry their offal passes scribe my name and affix the seal of said through Hyde Park, and the ordinance is fatal Supreme Court, at the City of Washing- to the use of the road. But the State did not conton, this 20th day of March, A. D. 1885. JAMES H. MCKENNEY, tract that they might carry by railroad, and still Clerk, Supreme Court, U. S. less did it contract that they should carry by Mr. Justice Miller concurring: that road. I concur in the judgment of the court, but cannot agree to the principal argument by which it is supported in the opinion. The question turns upon the existence of a contract and its nature, and not upon the power of the Legislature to pass laws affecting the health and comfort of the community, and reference to the latter and to the power of repeal and modification, where no contract is in question, are irrelevant. It is said that such contract as may be found in the present case was made subject to police power of the Legislature over the class of subjects to which it relates. The extent to which this is true depends upon the specific character of the I cannot concur in the judgment directed by contract and not on the general doctrine. This the court in this case. That the charter granted court has repeatedly decided that a State may by the Legislature, March 8, 1867, and accepted by contract bargain away her right of taxation. by the Company, is a contract protected by the I have not concurred in that view, but it is the Constitution of the United States, cannot be settled law of this court. If a State may make denied, in the face of Dart. Coll. v. Woodward, 4 a contract on that subject which it cannot abro- Wheat., 518, and the long line of decisions that gate or repeal, it may, with far more reason, have followed in its wake and re-asserted its docmake a contract for a limited time for the remov- trines. And if the Company holds its rights unal of a continuing nuisance from a populous city.der and by force of the contract, those rights

For this reason alone, I think the decree should be affirmed.

Mr. Justice Strong dissenting:

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