engines has already been mentioned. Reference may also be made to the statutes regulating the use of stationary steam-engines, the places and manner of manufacturing or keeping petroleum, of carrying on other offensive trades and occupations, of storing gunpowder, and of establishing hospitals, stables, and bowling-alleys. The defendants, however, contend that a different question arises in the present case, where the plaintiffs rely upon a legislative sanction given to acts after it had been determined by this court that the doing of them was attended with a peculiar injury to the defendants, which entitled them to a remedy as for a nuisance. There can be no doubt that such sanction would be a good defence to an indictment for a nuisance; or to a proceeding instituted by an individual, whose only grievance was that he had sustained special damage in consequence of being disturbed in the enjoyment of some public right, such as a right to travel upon a highway or river. His public right may clearly be regulated and controlled by the legislature, after a decision by the court as well as before. Commonwealth v. Essex Co. 13 Gray, 239, 247. But the argument is urged upon us with great force, that in the present case there had been a judicial determination that the ringing of the bell, at the hours now authorized by the terms of the statute and the designation of the selectmen, was a private nuisance to the defendants, not growing out of any public right, and that the statute ought not, as a matter of construction, to be held applicable to this case; or, if such is its necessary construction, that it is unconstitutional, as interfering with their vested rights.

In the first place, we can have no doubt that the statute by its just construction is in its terms applicable to the present case. It is undoubtedly true that neither a general authority nor a particular license is to be so construed as to be held to sanction what was not intended to be sanctioned. A general authority is not necessarily to be treated as a particular license; Commonwealth v. Kidder 107 Mass. 188; and in some cases, even where a particular license or authority has been given, as to keep an inn, alehouse, or slaughter-house in a particular place, which is specified, this authority has not been deemed to sanction the keeping of it in an improper manner. Rex v. Cross, 2 C. & P. 483. Commonwealth v. McDonough, 13 Allen, 581, 584. State v. Mullikin, 8 Blackf. 260. United States v. Elder, 4 Cranch C. C. 507. And, ordinarily, at statute which authorizes a thing to be done, which can be done without creating a nuisance, will not be deemed to authorize a nuisance. In such case, it is not to be assumed that it was contemplated by the legislature that what was so authorized would have the necessary effect to create a nuisance, or that it would be done in such a manner as to create a nuisance; and, if a nuisance is created, there will in such cases ordinarily be a remedy at law or in equity. Eames v. New England Worsted Co., 11 Met. 570. Haskell v. New Bedford, 108 Mass. 208, 215. Commonwealth v.

Kidder, 107 Mass. 188. But, on the other hand, the authority to do an act must be held to carry with it whatever is naturally incidental to the ordinary and reasonable performance of that act. When the legislature authorized factory bells to be rung, it must have been contemplated that they would be heard in the neighborhood. That is a natural and inevitable consequence. The legislature must be deemed to have determined that the benefit is greater than the injury and annoyance; and to have intended to enact that the public must submit to the disturbance, for the sake of the greater advantage that would result from this method of carrying on the business of manufacturing. It must be considered, therefore, in this case, that a legislative sanction has been given to the very act which this court found to create a private nuisance.

It is then argued that the legislature cannot legalize a nuisance, and cannot take away the rights of the defendants as they have been ascertained and declared by this court; and this is undoubtedly true, so far as such rights have become vested. For example, if the plaintiff under an existing rule of law has a right of action to recover damages, for a past injury suffered by him, his remedy cannot be cut off by an act of the legislature. So also, if, in a suit in equity to restrain the continuance of a nuisance, damages have been awarded to him, or costs of suit, he would have an undoubted right to recover them, notwithstanding the statute. But, on the other hand, the legislature may define what in the future shall constitute a nuisance, such as will entitle a person injured thereby to a legal or equitable remedy, and may change the existing common-law rule upon the subject. It may declare, for the future, in what manner a man may use his property or carry on lawful business without being liable to an action in consequence thereof; that is, it may define what shall be a lawful and reasonable mode of conduct. This legislative power is not wholly beyond the control of the courts, because it is restrained by the constitutional provision limiting it to wholesome and reasonable laws, of which the court is the final judge; but, within this limitation, the exercise of the police power of the legislature will apply to all within the scope of its terms and spirit. The fact that the rights of citizens, as previously existing, are changed, is a result which always happens; it is indeed in order to change those rights that the police power is exercised. So far as regards the rights of parties accruing after the date of the statute, they are to be governed by the statute; their rights existing prior to that date are not affected by it. To illustrate this view, let it be supposed that the case between the present parties in its original stage had been determined in favor of the manufacturers, under which decision they would have had a right to ring their bell; and that afterwards a statute had been passed providing that manufacturers should not ring bells except at such hours as might be approved by the selectmen; and that these manufacturers had then

proceeded to ring their bell at other hours, not included in such approval. It certainly could not be said that they had a vested right to do so, under the decision of the court.

The injunction which was awarded by the court, upon the facts which appeared at the hearing, did not imply a vested right in the present defendants to have it continued permanently. Though a final determination of the case before the court, and though binding and imperative upon the present plaintiffs, and enforceable against them by all the powers vested in a court of equity, yet they were at liberty at any time, under new circumstances making it inequitable for it to be longer continued, to apply to the court for a review of the case and a dissolution of the injunction. In respect to such a state of facts, an injunction can never be said to be final, in the sense that it is absolute for all time. Even without any new legislation affecting the rights of the parties, with an increase of their own business and a general increase of manufacturing and other business in the vicinity, and of a general and pervading change in the character of the neighborhood, it might be very unreasonable to continue an injunction which it was in the first instance entirely reasonable and proper to grant. The ears of the court could not under such new circumstances be absolutely shut to an application for its modification, without any new statute declaring the policy of the Commonwealth in respect to any branch of business or employment. But a declaration by the legislature that, in its judgment, it is reasonable and necessary for certain branches of business to be carried on in particular ways, notwithstanding the incidental disturbance and annoyance to citizens, is certainly a change of circumstances which is entitled to the highest consideration of the court; and in the present case we cannot doubt that it is sufficient to entitle the plaintiffs to relief from the operation of the injunction.

The method of procedure to which the plaintiffs have resorted is the usual and proper one in such circumstances. 2 Dan. Ch. Pl. & Pr. (4th Am. ed.) 1577, note 3. Story Eq. Pl. §§ 404 & seq. Clapp v. Thaxter, 7 Gray, 384. And, for authorities tending to show that the plaintiffs are entitled to the relief which they seek, in consequence of a subsequent statute changing the rights of the parties, see Pennsylvania v. Wheeling & Belmont Bridge, 18 How. 421; The Clinton Bridge, 10 Wall. 454, 463; Gilman v. Philadelphia, 3 Wall. 713, 732; South Carolina v. Georgia, 93 U. S. 4, 12; Bridge Co. v. United States, 105 U. S. 470, 480; Commonwealth v. Old Colony & Fall River Railroad, 14 Gray, 93, 97; Bartholomew v. Harwinton, 33 Conn. 408.

Demurrer overruled.1

1 An injunction was denied against an act which was formerly a tort on the ground that by legislation it was no longer a tort, in White v. Kenney, 157 Mass. 12 (1892), stable licensed by board of health; Titus v. Boston, 161 Mass. 209 (1893), increased discharge of sewage on land already condemned,

NOTE ON LEGISLATIVE CHANGES IN THE LAW OF TORTS

ALLEN, J., BACON v. BOSTON, 154 Mass. 100, 102 (1891): "The general rule is, that the legislature may authorize small nuisances without 'compensation, but not great ones."1

HOLMES, J., RIDEOUT V. KNOX, 148 Mass. 368, 372 (1889), enjoining spite fence under statute: "We concede further, that to a large extent the power to use one's property malevolently, in any way which would be lawful for other ends, is an incident of property which cannot be taken away even by legislation. It may be assumed, that, under our Constitution, the legislature would not have power to prohibit putting up or maintaining stores or houses with malicious intent, and thus to make a large part of the property of the Commonwealth dependent upon what a jury might find to have been the past or to be the present motives of the owner. But it does not follow that the rule is the same for a boundary fence unnecessarily built more than six feet high. It may be said that the difference is only one of degree: most differences are, when nicely analyzed. At any rate, difference of degree is one of the distinctions by which the right of the legislature to exercise the police power is determined. Some small limitations of previously existing rights incident to property may be imposed for the sake of preventing a manifest evil; larger ones could not be, except by the exercise of the right of eminent domain."

HOLMES, J., COMMONWEALTH V. PARKS, 155 Mass. 531, 532 (1892): It is settled that, within constitutional limits not exactly determined, the legislature may change the common law as to nuisances, and may move the line either way, so as to make things nuisances which were not so, or to make things lawful which were nuisances, although by so doing it affects the use or value of property. . . . The prohibition [of

adjoining land retained by plaintiff; Murtha v. Lovewell, 166 Mass. 391 (1896), furnace licensed by municipality; Levin v. Goodwin, 191 Mass. 341 (1906), bowling-alley, licensed by municipal ordinance; Whitcomb v. Vigeant, 240 Mass. 359 (1922), dance-hall, licensed by mayor. See also Woodruff v. North Bloomfield, 18 Fed. 753, 770-787 (Cal., 1884); Phoenix v. Commrs. of Emigration, 12 How. Pr. 1, 14 (1855); Hughes v. McVay, 113 Wash. 333, 340 (1920). The Massachusetts cases are adversely criticised in 1 Lewis, Eminent Domain (3d ed.) § 238.

Knox,

Conversely, a statute may convert into a nuisance an act which was not before a tort. The remedy by injunction follows as a consequence of such legislation. AMES. Griswold v. Brega, 160 Ill. 490 (1896), ordinance forbidding wooden building within fire limits; First Nat. v. Sarlls, 129 Ind. 201 (1891), same; cf. Rochester v. Walters, 27 Ind. App. 194 (1901); Rideout v. 148 Mass. 368 (1889), spite fence statute; Henry v. Trustees, 48 Oh. St. 671 (1891), cemetery nearer dwelling-house than statute allowed. See on these cases, except Rideout v. Knox, E. R. Thayer, "Public Wrong and Private Action," 27 Harv. L. Rev. 317 (1914). In Potter v. Dark Tobacco Growers, 257 S. W. 33 (Ky., 1923), a co-operative marketing statute was upheld, which allowed an injunction against breaches of the agreement that would perhaps have previously been denied for want of mutuality.

1 But see 1 Lewis, Eminent Domain (3d ed.), § 238.

blasting by statute] is not such a taking of property as always to be beyond the reach of the police power. . . . Forbidding it does not trench upon the rights of ownership to such an extent as necessarily to require compensation."

HOLMES, J., BENT v. EMERY, 173 Mass. 495, 496 (1899) requiring compensation for dredging the plaintiff's flats: "We assume that one of the uses of the convenient phrase, police power, is to justify those small diminutions of property rights, which, although within the letter of constitutional protection, are necessarily incident to the free play of the machinery of government. It may be that the extent to which such diminutions are lawful without compensation is larger when the harm is inflicted only as incident to some general requirement of public welfare. But whether the last mentioned element enters into the problem or not, the question is one of degree, and sooner or later we reach the point at which the Constitution applies, and forbids physical appropriation and legal restrictions alike unless they are paid for." 1

"Preishes Docenjoined from fuccheting the is a low inally saying equity const enjoin picketing.

this colled cepconstitutiona TRUAX v. CORRIGAN. Keld ved this loveenconstitution of lov

it takes P'sproperty without del proces

Supreme Court, United STATES, 1921. and legiture connot-moke

[257 United States Reports, 312.]

IN Error to the Supreme Court of Arizona. See

20 Ariz. 7.

sucha flow.

dissenting on legislature concurtail paises it's pa same case below,

The plaintiffs operate a restaurant in Bisbee, Arizona, known as the "English Kitchen." The defendants are cooks and waiters formerly employed there, together with the labor union and the trades assembly of which they were members.

The complaint and the exhibits set out this case. The cooks and waiters struck because of a dispute over conditions of employment. To win the strike and coerce the plaintiffs into compliance with the union demands, the defendants' conspired to injure and destroy the plaintiffs' business by inducing past and present patrons to withhold their trade. The methods used included picketing constantly during all the business hours within 5 feet of the restaurant, with a banner announcing in large letters that the restaurant was unfair to cooks and waiters and their union; having such pickets announce this in a loud voice, audible for a great distance; handbills continuously distributed in front of the restaurant to prospective customers, which applied opprobrious epithets to Truax and his employees and made libelous charges against him, that he was tyrannical with his help, and chased them down the street with a butcher knife, broke his contract,

1 See Penn. Coal Co. v. Mahon, 260 U. S. 393 (1922), noted in 36 Harv. L. Rev. 753, 71 U. Pa. L. Rev. 77, 277; Riverbank Improvement Co. v. Chadwick, 228 Mass. 242 (1917), noted in 19 Colum. L. Rev. 53 and 31 Harv. L. Rev. 876; Conger v. Pierce, 116 Wash. 27 (1921).