as they shall judge to be for the good and welfare of the commonwealth, and of the subjects of the same. It is much easier to perceive and realize the existence and sources of this power, than to mark its boundaries or prescribe limits to its exercise." In this case the validity of a statute fixing lines in the harbor of Boston beyond which no wharf shall be extended or maintained, was upheld.

"This description of the police power by state tribunals and the competency of a state legislature to enact all manner of laws not expressly forbidden by the constitution, which shall be deemed necessary and reasonable for the protection of public health, morals, social order, and property rights, has been affirmed repeatedly by the supreme court of the United States.

"The leading case upon the regulation by the legislature of private property affected by public interests (Munn v. Illinois, 94 U. S. 113), was brought to the supreme court of the United States in 1876 on a writ of error to review a judgment of the supreme court of the state of Illinois, which affirmed the constitutionality of a statute of that state fixing a maximum charge for the elevation and storage of grain in warehouses in that state. This act was challenged as a violation of the constitutional guaranty contained in the fourteenth amendment to the constitution of the United States. The supreme court affirmed the judgment of the state court, on the ground that the legislation in question did not infringe the clause mentioned, but was a lawful exercise of legislative power, and by Waite, C. J., said: 'When one becomes a member of society, he necessarily parts with some rights or privileges which, as an individual not affected by his relations to others, he might retain. This does not confer power upon the whole people to control rights which are purely and exclusively private (Thorpe v. R. R. Co., 27 Vt. 143), but it does authorize the establishment of laws requiring each citizen to so conduct himself and so use his own property as not unnecessarily to injure another. This is the very essence of government. From this source come the police powers, which, as was said by Taney, C. J., in the License Cases (5 How. U. S. 583), "are nothing more or less than the powers of government inherent to every sover

eignty, that is to say, the power to govern men and things." Under these powers the government regulates the conduct of its citizens one towards another, and the manner in which each shall use his own property, when such regulation becomes necessary for the public good.'

"The circumstance that no precedent for a legislative act forbidding the indiscriminate cutting of trees by private owners may be found, cannot bar the state from such exercise of its police power. In the leading case above cited, the court, by Waite, C. J., said: 'Of the propriety of legislative interference within the scope of legislative power, the legislature is the exclusive judge. Neither is it a matter of any moment that no precedent can be found for a statute precisely like this. It is conceded that the business is one of recent origin, that its growth has been rapid, and that it is already of great importance. And it must also be conceded that it is a business in which the whole public has a direct and positive interest. It presents, therefore, a case for the application of a long-known and well-established principle in social science, and this statute simply extends the law so as to meet this new development of commercial progress.' The argument of this case was very elaborate, and its treatment by the court was unusually thorough, the conclusions being clear and decisive.

"The criticism of the decision in Munn v. Illinois by two dissenting justices, and by writers of some ability, has failed to shake the foundations upon which it is based or to detract from the general favor in which it is justly held. The objections that have been urged against it are carefully examined by Andrews, J., in People v. Budd, 117 N. Y. 1, 15 Am. St. Rep. 460, and his conclusions thereon are announced with great force in the following language: "The criticism to which the Munn case has been subjected has proceeded mainly upon a limited and strict construction and definition of the police power. The ordinary subjects upon which it operates are well understood. It is most frequently exerted in the maintenance of public order, the protection of the public health and public morals, and in regulating mutual rights of property, and the

use of property, so as to prevent uses by one of his property to the injury of the property of another. These are instances of its exercise, but they do not bound the sphere of its operation. There is little reason, under our system of government, for placing a close and narrow interpretation on the police power, or in restricting its scope so as to hamper the legislative power in dealing with the varying necessities of society and the new circumstances as they arise, calling for legislative intervention in the public interest.'

"A striking analogy to the proposed legislation for the preservation of the timber supply of New Hampshire, and one which cannot be distinguished in principle, is found in existing laws for the preservation of game and fish which affect the property in game lawfully taken. Such statutes actually impair in a marked degree the value of what is called private property. Yet these laws have been universally upheld as a wise and just exercise of the police power by the highest judicial authorities in the land, and that notwithstanding their enforcement incidentally affected interstate commerce.

"The principle of these cases is well stated by Clark, J., in State v. Roberts, 59 N. H. 256, 47 Am. Rep. 199, as follows: "The taking and killing of certain kinds of fish and game at certain seasons of the year tend to the destruction of the privilege by the destruction consequent upon the unrestrained exercise of the right. This is regarded as injurious to the community, and therefore it is within the authority of the legislature to impose restrictions and limitations upon the time and manner of taking fish and game considered valuable as articles of food or merchandise. For this purpose fish and game laws are enacted.'

"The leading case upon this subject is Phelps v. Racey, 60 N. Y. 10, 19 Am. Rep. 140. This was an action to recover penalties imposed by a statute on any person who should have in his possession any dead game at a certain season. Defendant answered that some of the dead game was in his possession before the passage of the statute and when the killing was not prohibited, and the remainder was received from another state where the killing was lawful. In holding that a demurrer to

such answer was properly sustained, the court of appeals of New York by Church, C. J., said: "The legislature may pass many laws the effect of which may be to impair or even to destroy the right of property. Private interest must yield to the public advantage. All legislative powers not restrained by express or implied provisions of the constitution, may be exercised. The protection and preservation of game has been secured by law in all civilized countries, and may be justified on many grounds, one of which is for purposes of food. The measures best adapted to this end are for the legislature to determine.'

"Such statutes have been sustained by the supreme court of the United States. In Lawton v. Steele, 152 U. S. 133, on writ of error to the court of appeals of New York, the case was elaborately argued on both sides, and the language of the court by Justice Brown is particularly instructive on the general principle under discussion: "The extent and limits of what is known as the police power have been a fruitful subject of discussion in the appellate courts of nearly every state in the Union. It is universally conceded to include everything essential to the public safety, health, and morals, and to justify the destruction or abatement, by summary proceedings, of whatever may be regarded as a public nuisance. Under this power it has been held that the state may order the destruction of a house falling to decay or otherwise endangering the lives of passers-by; the demolition of such as are in the path of a conflagration; the slaughter of diseased cattle; the destruction of decayed or unwholesome food; the prohibition of wooden buildings in cities; the regulation of railways and other means of public conveyance; and of interments in burying-grounds; the restriction of objectionable trades to certain localities; the compulsory vaccination of children; the confinement of the insane or those afflicted with contagious diseases; the restraint of vagrants, beggars, and habitual drunkards; the suppression of obscene publications and houses of ill fame; and the prohibition of gambling houses and places where intoxicating liquors are sold. Beyond this, however, the state may interfere

wherever the public interests demand it, and in this particular a large discretion is necessarily vested in the legislature to determine, not only what the interests of the public require, but what measures are necessary for the protection of such interests. To justify the state in thus interposing its authority in behalf of the public, it must appear, first, that the interests of the public generally, as distinguished from those of a particular class, require such interference; and second, that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals. The legislature may not, under the guise of protecting the public interests, arbitrarily interfere with private business, or impose unusual and unnecessary restrictions upon lawful occupations. In other words, its determination as to what is a proper exercise of its police powers is not final or conclusive, but is subject to the supervision of the courts.' After enumerating a number of such instances, he continues: "The preservation of game and fish, however, has always been treated as within the proper domain of the police power, and laws limiting the season in which birds and wild animals may be killed or exposed for sale, and prescribing the time and manner in which fish may be caught, have been repeatedly upheld by the courts. The duty of preserving the fisheries of a state from extinction, by prohibiting exhaustive methods of fishing, or the use of such destructive instruments as are likely to result in the extermination of the young as well as the mature fish, is as clear as its power to secure to its citizens as far as possible a supply of any other wholesome food.'

"The conditions thus described by the highest judicial authority as essential for the constitutional application of the police power to a new subject matter, in the opinion of this commission, now exist in New Hampshire. "The interests of the public generally, as distinguished from those of a class',— lumbermen, require the conservation of its forestry resources. The interference herein recommended prohibiting the indiscriminate cutting of trees is believed to be reasonably necessary for the accomplishment of that purpose, and not unduly oppressive upon individuals.'