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holy; six days shalt thou labor and do all thy work, but the seventh day is the Sabbath of the Lord thy God; in it thou shalt not do any work;" has had its influence in securing the enactment of such statutes. Nor does the policy of those states stop at that point. The existence of a God; of a hereafter, and a retribu tion,-pervades the whole administration of the law. These Sun day laws, the state in its administration of justice calling to its aid the solemn sanctions of religion in the use of oaths, still stamps this religion as an integral part of its policy. It is believed that no state would be willing to see these restraints removed from its policy. The social fabric could not endure without them.
So too under this power is the construction of highways by the state, or by others under their authority, with proper police provisions for their regulation and the government of persons using them; -as to the rate of speed with which they may be traveled, and which way passengers meeting or passing each other shall turn; to prohibit nuisances thereon; to prevent cattle and other animals from runing at large thereon; to regulate the navigation and use of public waters, to prevent the sale of poisonous drugs,-to require dogs to be muzzled at certain periods,-to prevent the keeping and sale of unwholsome provisions; to regulate markets, and standards of weights and measures; to prohibit the keeping, exhibition, and sale of indecent books and pictures, and the universally acknowledged power to pass laws to punish crimes and misdemeanors.
This enumeration may suffice, though it is but a portion of the instances in which this police power may be and has been exerted, nor can it be deemed necessary to cite authority to sustain the principle upon this enumeration of powers.
OF CONSTITUTIONAL PROTECTION TO PERSONAL PROPERTY.
IN the three preceding chapters, we have examined, under the right of eminent domain, of the taxing power, and the police power of the government, how the superior rights of the government to property, may be called into exercise, to the deprivation of the individuals of their private estates, and the theory, by which, it is supposed, the individual receives his compensation. We have but incidentally discussed the constitutional provisions, state and national, that private property shall not be taken without due process of law. Our examination, in that respect, has been limited to such taking, and what was regarded as due process of law under the right of eminent domain.
We have already shown (in a former chapter) from the provisions of the various state constitutions, that the same constitutional intent of protection is secured to the citizen by language so nearly identical, as not to change the interpretation, viz: "by due process of law," "by due course of law," "by the law of the land," &c. So the definitions in reported cases, though they differ in phraseology, and are more extended or limited, according to the views of jurists who have given expression to them, do not really effect any conflict on the question of intent.
It was held in this state, in the Supreme Court,a "that to work a change of property from one private person to another, by due process of law, some proceeding must be had in a court of justice or before magistrates. At least that the legislature should have no power to deprive one of his property, and transfer it to another, by enacting a bargain between them, unless it be in the hands of the latter, as a trust for public use.' The meaning of these words was equally well expressed by Mr. Webster in his argument before the Supreme Court of the United States,b in which he said: "By the law
a In the Matter of John and Cherry St., 19 Wend. 676-7. b Dartmouth College v. Woodward, 4 Wheat. 581, 582.
of the land is most clearly intended the general law;—a law which hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial." The meaning is, that every citizen shall hold his life, liberty, property and immunities under the protection of the general rules which govern society. Everything which may pass under a form of enactment, is not, therefore, to be considered the law of the land. If this were so, acts of attainder, bills of pains and penalties, acts of confiscation, acts reversing judgments, and acts directly transferring one man's property to another, legislative judgments, decrees and forfeitures in all possible forms, would be the law of the land.
Such a strange construction, would render constitutional provisions of the highest importance completely inoperative and void. It would tend directly to establish the union of all powers in the legislature. There would be no general permanent law for courts to administer, or for men to live under. The administration of justice would be an empty form, an idle ceremony. Judges would sit to execute legislative judgments and decrees; not to declare the law or to administer the justice of the country.
So in the exposition of the same words in the national constitution, Mr. Justice Curtis said, a "The article is a restraint on the legislative, as well as on the executive, and judicial powers of the government, and cannot be so construed as to leave congress free to make any process, 'due process of law,' by its mere will." These words are found in Magna Charta, and have been copied into our national and state constitutions. As in the original royal charter, so in our own, they were intended to secure the individual from the arbitrary exercise of the powers of government, unrestrained by the establishment of the principles of private rights and distributive justice. b This seems to have settled down to be the good sense of mankind.
It has been claimed that this power is universal, not only in its application, but that the citizen under it is entitled to claim a trial by jury in all cases. But the cases of the right of trial by jury, being otherwise expressly provided for in the same constitution, it is not to be deemed as implied in this provision of due process of law.
a Murray's Lessees v. Hoboken Land Imp. Co., 18 How. 276. b Bank of Columbia v. Okely, 4 Wheat. 144.
By the constitution of the United States, a speedy trial by an impartial jury, is secured in all criminal cases, a and by the constitution of this state, the trial by jury in all cases in which it had theretofore been used, is secured to remain inviolate forever; but a jury trial may be waived by the parties in all civil cases, in the manner to be prescribed by law. b
But there are exceptions to the general rule laid down in the cases we have referred to, that to pass title to property from one person to another, there must be the intervention of judicial proceedings so called. The cases of the taxing and police power, and perhaps the right of eminent domain, may be regarded as exceptions, and perhaps there are many other special cases. The general rule to which we have referred, and its general necessity, as a rule, does not preclude the legislature from establishing special rules, for a special or particular class of cases, which range themselves under some general and acknowledged head of legisla tive power, nor does the requirement of what is technically so called judicial action demand, in every case, a hearing in court. c
These cases, which are exceptions to the general rule, are, and should be looked upon with great jealousy by the courts, for fear of establishing a precedent that should look like encroaching upon constitutional securities. They generally relate to legislation as to interests or property to be acquired in future, and seldom or never as to existing interests. Sometimes they relate to the forms of administering justice by courts, or by officers specially appointed by statute to perform certain duties; powers which are incident to the exercise of this branch of the sovereign will, and which must ever be subject to the legislative will.
The line which distinguishes what are called the excepted cases from others, is so nice, and is so bordering upon those that are brought under the heads of right of eminent domain, the taxing and police powers, or under the acknowledged legislative power to change the form of remedies, that the ablest jurists, have been disposed to doubt the existence of even an exception at all.d For instance, a statute making it unlawful to sell intoxicating
b Art. 1. § 2.
a Art. 6.
c Cooley on Const. Lim. 355.
d Wynchamer v. The People, Per. Comstock, J. 13 N. Y. R. 386-387.
liquors or to keep them for sale, declaring them a nuisance, and authorizing public officers to abate the nuisance by its destruction, has been held to be unconstitutional as applicable to such liquors as were owned or kept at the time of the passage of the law. But it was intimated, a that it was competent for the legislature to pass an act containing like provisions to annihilate and destroy such property that might be acquired or created at any time after the passage of such an act. This, it is said, would be however, by virtue of the police power.
So too, the taking of wild lands of an individual for a public highway by the state, and by commissioners appointed by an act of the legislature, without giving compensation to the proprietor, has been held to be within the constitutional power of the legislature. But this is said, also, to come under the taxing power, and based upon the principle, that the owner receives an equivalent by the increased value of the adjoining lands.
'Nevertheless, in many cases and ways, remedial legislation may affect and control the disposition of property, and, in some cases, may change rights, give remedies, where none existed before, and even devest titles, in case the legal and equitable rights do not concur in the same person." b But it is believed that no reason of public policy will be sufficient to effect such changes or transfers of property where they operate on vested rights. c
It cannot be denied, that the legislature have power to pass an act, which, without acting directly upon its terms, destroys the remedy which a party may have at the time of its passage, or so embarrasses it, that the rights of the creditor under such legal remedies are substantially defeated. d It may frequently be difficult to draw the line, between acts affecting the remedy only, and those that are within the legitimate province of the state legislature, and such, as overstepping those bounds, substantially impair the obligation of antecedent contracts; and it is perhaps impracticable to lay down in language, a rule by which all such questions may be tried and determined.
But it is well established law, that the individual citizen with