The subject of the police power of the state, has recently been a subject of interesting and of extended discussion, and the courts have, to a certain extent, settled some important propositions in relation thereto; among which are the following:

1. "It is within the constitutional authority of the legislature to establish new civil divisions of the state, embracing in the districts so created, several towns, cities or counties, or such portions thereof as may be deemed appropriate for the general purposes of civil administration."

2. "The organization for police purposes, of districts not co-terminus with others recognized by the constitution, is not inconsistent with the continuance of such antecedent civil divisions, for every general purpose prescribed in the organic law."

3. "The police powers, exercised in the towns, cities and counties, respectively, were vested in the local authorities by legislation, and not by irrevocable constitutional grant."

4. "The legislature has authority to arrange the distribution of these powers, as the public exigencies may require; apportioning them to local jurisdictions, to such extent as the law-making power deems appropriate, and committing the exercise of the residue, to officers appointed, as it may see fit."

5. "This is a continuing legislative power, in virtue of which, from time to time, as occasion may require, jurisdiction committed to the towns, cities or counties, may be resumed and vested in other authorities appointed by the state governments."

6. "The state has an interest in the repression of disorder, and the maintenance of peace and security in every locality within its limits; and if, from exceptional cases, the public good requires that legislation, either permanent, or temporary, be directed towards any particular locality, whether consisting of one county or several counties, it is within the discretion of the legislature to apply such legislation, as, in its judgment, the exigency of the case may require; and it is the sole judge of the existence of such causes." a

These propositions were laid down in a case where in the opinion of the court, the act was one, in which the ends it sought to attain, and the efficiency of the agencies it sought to organize, was a People v. Shepherd, 36 N. Y. 286; People v. Draper, 15 N. Y. 544.

for the preservation of order; the protection of person and property; the detection and arrest of culprits; and the punishment and prevention of crime.

It is a power, which like all other powers, may be abused. With this, however, and with hardships and injustice, we have nothing to do, in this work. The people, by their representatives, must guard these abuses as best they may. Nor is it needful to say, that this power is confined in its exercise, to the principle, that the use for which it is taken, is strictly, what is called public use; nor attempt to draw a line that shall distinguish between public and private uses. The preservation of the life of a citizen, is a matter of public interest, much more, of many citizens. The arresting of a devastating fire, or plague or other calamity, is also a matter of public interest; and yet, in the first instance, it might seem to affect only private individuals. It may be, that in the one case, an overwhelming necessity would require the taking of the life of another citizen which is also a matter of public interest; and in the other case, the same necessity might require the destruction of private property. In the first case it is the sacrifice of one life, for the saving of many lives; in the other the sacrifice of the property of one for the necessary protection of the property of many. Looking at this power, then, as it seems to be a power conceded, by our own, and other states, whether it is exercised as it exists at common law, tolerated by the constitution, or as regulated by legislative enactments, not inhibited by the constitution, we may regard it as a settled principle, growing out of the nature of wellordered civil society, that every holder of property, and rights of property, however absolute and unqualified may be his title, holds it under the implied liability that it may be so regulated that its use shall not be injurious to the equal enjoyment of others, having an equal right to the enjoyment of their property, nor injurious to the rights of the community. All property is to be regarded as held by the citizen subject to those general regulations which are necessary to the common good and general welfare. a

This power, however, differs from the right of eminent domain. The latter, is the right of government to take and appropriate private property to public use when the public exigency requires it; a Commonwealth v. Alger, 7 Cushing 85.

which can be done only on condition of providing a reasonable compensation therefor. This power, is the police power, which is subject to no such condition, "It is a power much easier to perceive and realize the existence of, and to learn its source, and the principle of its power, than to define its boundaries, or prescribe limits to its exercise. There are many cases where such a power is exercised by well-ordered governments, and where its fitness is so obvious that every reasonable mind will acknowledge its justice. Under this power are enacted statutes which prohibit the storage of powder within cities, and near to habitations and public highways; to restrain and regulate the erection of wooden buildings within cities and populous towns; to prohibit buildings from being used as hospitals for contagious diseases; for the preventing the carrying on of noxious or offensive trades; to prohibit the erection or raising of dams which may cause stagnant water to stand or spread over lands near inhabited towns, villages or cities, thereby causing noxious exhalations, injurious to health and dangerous to life. a

"The prohibition in such case, though it may greatly diminish the profits to the owner, it does not give him a right to compensation for its use. It is not such an appropriation to public use of private property as comes within the power of eminent domain, and the right of compensation to the proprietor. Doubtless the proprietor of a vacant lot in a city, might obtain a better percentage by way of rent, by erecting a wooden, than a brick or stone tenement. The owner of a warehouse could store his own powder with less expense of transportation in his city building, than in a place remote; a landlord might let his building for a small pox hospital or slaughter house for an increased rent. They are restrained by this power; not because the public take or use it for any benefit or profit to themselves, but because the use would be noxious, and contrary to the maxim "Sic utere tuo, ut alienum non laedas." These are a few of the many and various cases, where this police power may be exercised. *

3

a Id. 86; Hart v. Mayor, 9 Wend. 571; People v. Draper, 25 Barb. 374; Commonwealth v. Tewksbury, 11 Met. 55, 57; Baker v. City of Boston, 12 Pick. 184 Mayor, &c. v. Miln, 11 Peters 102, 132,

NOTE 3.-It is settled law that it is competent for the legislature to regulate the sale and disposition of liquors. Such is the effect of the "Act to regulate the sale

This police power, which, as has been said, is inherent in every government, and not restricted by our constitutions, can be brought into active exercise for the protection of the citizen by the sovereign power in all needful emergencies. Every sovereign state possesses within itself, absolute and unlimited legislative power, except so far as it is prohibited by the fundamental law. There is no arbiter in such case, beyond the state itself, to determine what legislation is just. Whatever therefore is so declared, by the ultimate power of a state, as there can be no appeal, must, in view of the law, be taken to be just and right. By the exercise of this police power, the legislature may protect the mass of citizens by the control of existing corporations, such for instance, as railroads, in protecting of the lives, limbs, health, comfort, and quiet of all persons, and the protection of their property, against aggresof intoxicating liquors within the Metropolitan District of the State of New York," passed April 14, 1866. Therefore, the third section of the act is not unconstitutional, as tending to divest the owner of his property without due compensation. In the Matter of James DeVaucene, 31 How. Pr. R. 289. Nor is the act of 1866, creating the Metropolitan Board of Health of New York, unconstitutional, as conferring upon the board the right to deprive a citizen of his liberty or property without due process of law. Cooper v. Schultz, 32 How. Pr. R. 107. This was an act entitled "An act to create a Metropolitan Sanitary District and Board of Health therein, for the preservation of life and health, and to prevent the spread of disease," and it gave large powers to carry out the objects expressed in its title. The government, it was held, clearly possessed the power itself, for the safety and health of its citizens; and they could delegate this power to a proper body of men. The abatement of a nuisance is not the appropriation of private property to private use without the judgment of one's peers. It is the suppression of a thing declared to be illegal by the laws of the land, and which may be destroyed by any citizen, if done in such a manner as to invade no law of property, or for the preservation of the peace, and when where the law invests a public body with the power to do such an act, in express terms, by no rule of construction can such a law be held to be unconstitutional. Weil v. Schultz, 33 How. Pr. R. 7. Though the digging of a ditch upon the lands of a private owner, under the authority of the legislature, for the purpose of draining such land, and that of an adjoining proprietor, is, it has been held, a taking of property within article one, sections six and seven, of the constitution of this state, of 1846, and the act of the legislature, professing to authorize such taking void, where it does not provide for the payment of a just compensation to be ascertained by a jury, or by commissioners appointed by a court of record. People v. Nearing, 27 N. Y. 306. The mode of assessing and of apportioning the compensation and expenses of executing the work, however, upon those benefited thereby, is wholly within the discretion of the legislature. Id.

sion, and against what may be declared negligence, in the management of such corporations.

The maxim, which has been quoted, "Sic utere tuo est alienum non laedas," is one of universal application, and it must, of course, be within the range of legislative action, to define the mode and the manner in which every one, (which includes railroads,) may so use his own as not to injure others. a So far as railroads are concerned, this police power is two-fold. 1. The police of the roads, which, in the absence of legislative control, the corporations themselves exercise over their operatives, and to some extent, over all who do business with them, or upon their grounds, through general statutes. And, 2. By the general police power of the state, by which persons and property are subjected to all kinds of reasonable restraints and burthens, in order to secure the general comfort, health and prosperity of the state.

Of the perfect right and authority to do this, no serious question ever was, and upon acknowledged principles, never can be made. So far as natural persons are concerned, it has not been doubted, and no good reason is perceived, why it should be doubted in the case of artificial persons. Upon this principle, the legislature may require, even of existing, as well as all future railroad corporations, to maintain cattle guards at all crossings, and to erect and maintain fences and gates upon the sides of the road, and farm crossings; and to respond in damages for all cattle injured, or other damages for negligent omission of such structures; and this police power might doubtless be extended so as to include the supervision of track, tending switches, running upon the time of other trains, running a road with a single track, using improper rails, not using proper precaution by way of safety beams, in case of the breaking of axles, the number of brakemen upon a train, with reference to the number of cars, employing intemperate or incompetent engineers and servants, running beyond a given rate of speed, and all kindred and similar protections to any extent, may be the subject of legislation; most of which have been, and are now, subjects of judicial determination. b In the state of Connecticut,

a Thorp v..Rutland & Burlington R. R. Co., 27 Vt. R. 149.

b Thorp v. R. & B. R. R. Co., 27 Vt. 150; Hyeman v. West R. R. Corporation, 16 Barb. 353, S. C. 13 N. Y. 1.