province of police regulation.1 Perhaps there is no instance in which the power of the legislature to make such regulations as may destroy the value of property, without compensation to the owner, appears in a more striking light than in the case of these statutes. The trade in alcoholic drinks being lawful, and * the capital employed in it being fully protected by law, [*584] the legislature then steps in, and, by an enactment based on general reasons of public utility, annihilates the traffic, destroys altogether the employment, and reduces to a nominal value the property on hand. Even the keeping of that, for the purposes of sale, becomes a criminal offence; and, without any change whatever in his own conduct or employment, the merchant of yesterday becomes the criminal of to-day, and the very building in which he lives and conducts the business which to that moment was lawful becomes the subject of legal proceedings, if the statute shall so declare, and liable to be proceeded against for a forfeiture.2 A statute which can do this must be justified upon the highest reasons of public benefit; but, whether satisfactory or not, they address themselves exclusively to the legislative wisdom. Within the last two or three years, new questions have arisen in regard to these laws, and other State regulations, arising out of the imposition of burdens on various occupations by Congress, with a view to raising revenue for the national government. These burdens are imposed in the form of what are called license fees; and it has been claimed that, when the party paid the fee, he was thereby licensed to carry on the business, despite the regulations which the State government might make upon the subject. This view, however, has not been taken by the courts, who have regarded the congressional legislation imposing a license fee as only a species of taxation, without the payment of which the business could not lawfully be carried on, but which, nevertheless, did not propose to make any business lawful which was not lawful before, or to relieve it from any burdens or restrictions imposed by the Hibbard v. People, 4 Mich. 125; Fisher v. McGirr, 1 Gray, 1. But see Meshmeier v. State, 11 Ind. 484; Wynehamer v. People, 13 N. Y. 378. In a number of the States statutes have recently been passed to make the owners of premises on which traffic in intoxicating liquors is carried on responsible for all damages occasioned by such traffic. It is believed to be entirely competent for the legislature to pass such statutes, but whether they can apply in cases where leases had previously been made, must be a serious question. regulations of the State. The licenses give no authority, and are mere receipts for taxes.1 Numerous other illustrations might be given of the power in the States to make regulations affecting commerce, which are sustainable as regulations of police. Among these, quarantine regulations and health laws of every description will readily suggest themselves, and these are or may be sometimes carried to the extent of ordering the destruction of private property when infected with disease or otherwise dangerous.2 These regulations [*585] * have generally passed unchallenged. The right to pass inspection laws, and to levy duties so far as may be neces 1 License Tax Cases, 5 Wall. 462; Purvear v. Commonwealth, ib. 475; Commonwealth v. Holbrook, 10 Allen, 200; Block v. Jacksonville, 36 I. 301. As to when license fees are taxes, see ante, 201 and note. * See remarks of Grier, J., in License Cases, 5 How. 632; Meeker v. Van Rensselaer, 15 Wend. 397. A liquor law may annul a previous license, and not be invalid on that ground. Metropolitan Board of Excise v. Barrie, 34 N. Y. 667; ante, p. 283, note. Under the police power, the dealing in liquors even for lawful purposes may be restricted to persons approved for moral character. In re Ruth, 32 Iowa, 250. It is usual, either by general law or by municipal charters, to confer very extensive powers upon local boards of health, under which, when acting in good faith, they may justify themselves in taking possession of, purifying, or even destroying, the buildings or other property of the citizen, when the public health or comfort demands such strong measures. See Harrison v. Baltimore, 1 Gill, 264; Van Wormer v. Albany, 15 Wend. 262; Coe v. Shultz, 47 Barb. 64. They may forbid offensive trades being carried on in populous districts. Ex parte Shraden, 33 Cal. 279; Metropolitan Board v. Heister, 37 N. Y. 661; Live Stock, &c., Association v. Crescent City, &c., Co., 16 Wallace; Wynehamer v. People, 13 N. Y. 402; Coe v. Shultz, 47 Barb. 64; Ashbrook v. Commonwealth, 1 Bush, 139; Dillon, Mun. Corp. § 95; Potter's Dwarris on Stat. 458. If they forbid the keeping of swine in certain parts of a city, their regulations will be presumed reasonable and needful. Commonwealth v. Patch, 97 Mass. 221, citing with approval Pierce v. Bartrum, Cowp. 269. And though they cannot be vested with authority to decide finally upon one's right to property when they proceed to interfere with it as constituting a danger to health, yet they are vested with quasi judicial power in deciding upon what constitutes a nuisance, and all presumptions favor their action. See Van Wormer v. Albany, 15 Wend. 262; Kennedy v. Phelps, 10 La. An. 227; Metropolitan Board v. Heister, 37 N. Y. 661. And they may unquestionably be vested with very large power to establish pest-houses, and make very stringent regulations to prevent the spread of contagious diseases. As to the power of the public authorities to establish a public slaughter-house, or to require all slaughtering of beasts to be done at one establishment, see Milwaukee v. Gross, 21 Wis. 241; Live Stock, &c., Association v. sary to render them effectual, is also undoubted, and is expressly recognized by the Constitution. But certain powers which still more directly affect commerce may sometimes be exercised where the purpose is not to interfere with congressional legislation, but merely to regulate the times and manner of transacting business with a view to facilitate trade, secure order, and prevent confusion. An act of the State of New York declared that the harbormasters appointed under the State laws should have authority to regulate and station all ships and vessels in the stream of the East and North rivers, within the limits of the city of New York, and the wharves thereof, and to remove from time to time such vessels as were not employed in receiving and discharging their cargoes, to make room for such others as required to be more immediately accommodated, for the purpose of receiving and discharging theirs; and that the harbor-masters or either of them should have authority to determine how far and in what instances it was the duty of the masters and others, having charge of ships or vessels, to accommodate each other in their respective situations; and it imposed a penalty for refusing or neglecting to obey the directions of the harbor-masters or either of them. In a suit brought against the master of a steam vessel, who had refused to move his vessel a certain distance as directed by one of the harbor-masters, in order to accommodate a new arrival, it was insisted on the defence that the act was an unconstitutional invasion of the power of Congress over commerce, but it was sustained as being merely a regulation prescribing the manner of exercising individual rights over property employed in commerce.2 Crescent City, &c., Co., 16 Wallace. Compare as to right to establish monopolies, Gale v. Kalamazoo, 23 Mich. 344. A regulation forbidding the growing of rice within a city, on the ground of injurious effect upon health, was held valid in Green v. Savannah, 6 Geo. 1. Art. 1, § 10, clause 2. 2 Vanderbilt v. Adams, 7 Cow. 351. Woodworth, J., in this case states very clearly the principle on which police regulations, in such cases, are sustainable: "It seems to me the power exercised in this case is essentially necessary for the purpose of protecting the rights of all concerned. It is not, in the legitimate sense of the term, a violation of any right, but the exercise of a power indispensably necessary, where an extensive commerce is carried on. If the harbor is crowded with vessels arriving daily from foreign parts, the power is incident to such a state of things. Disorder and confusion would be the consequence, if [* 586] *The line of distinction between that which constitutes an interference with commerce, and that which is a mere police regulation, is sometimes exceedingly dim and shadowy, and it is not to be wondered at that learned jurists differ when endeavoring to classify the cases which arise. It is not doubted that Congress has the power to go beyond the general regulations of commerce which it is accustomed to establish, and to descend to the most minute directions, if it shall be deemed advisable; and that to whatever extent ground shall be covered by those directions, the exercise of State power is excluded. Congress may establish police regulations, as well as the States; confining their operation to the subjects over which it is given control by the Constitution. But as the general police power can better be exercised under the supervision of the local authority, and mischiefs are not likely to spring therefrom so long as the power to arrest collision resides in the national courts, the regulations which are made by Congress do not often exclude the establishment of others by the State covering very many particulars. Moreover, the regulations of commerce are usually, and in some cases must be, general and uniform for the whole country; while in some localities, State and local policy will demand peculiar regulations with reference to special and peculiar circumstances. there was no control. . . . The right assumed under the law would not be upheld, if exerted beyond what may be considered a necessary police regulation. The line between what would be a clear invasion of right on the one hand, and regulations not lessening the value of the right, and calculated for the benefit of all, must be distinctly marked. . . . Police regulations are legal and binding, because for the general benefit, and do not proceed to the length of impairing any right, in the proper sense of that term. The sovereign power in a community, therefore, may and ought to prescribe the manner of exercising individual rights over property. It is for the better protection and enjoyment of that absolute dominion which the individual claims. The power rests on the implied right and duty of the supreme power to protect all by statutory regulations; so that, on the whole, the benefit of all is promoted. Every public regulation in a city may, and does in some sense, limit and restrict the absolute right that existed previously. But this is not considered as an injury. So far from it, the individual, as well as others, is supposed to be benefited. It may, then, be said that such a power is incident to every well-regulated society, and without which it could not well exist." See Cooley v. Board of Wardens, 12 How. 289; Owners of James Gray v. Owners of The John Frazer, 21 How. 184; Benedict v. Vanderbilt, 1 Robertson, 194; Steamship Co. v. Joliffe, 2 Wall. 450; Port Wardens v. The Ward, 14 La. An. 289; Gilman v. Philadelphia, 3 Wall. 726, 731; Cisco v. Roberts, 36 N. Y. 292. The The State of Maryland passed an act requiring all importers of foreign goods, by the bale or package, &c., to take out a license, for which they should pay fifty dollars, and, in case of neglect or refusal to take out such license, subjected them to certain forfeitures and penalties. License laws are of two kinds: those which require the payment of a license fee by way of raising a revenue, and are therefore the exercise of the power of taxation; and those which are mere police regulations, and which [* 587] require the payment only of such license fee as will cover the expense of the license and of enforcing the regulation. Maryland act seems to fall properly within the former of these classes, and it was held void as in conflict with that provision of the Constitution which prohibits a State from laying any impost, &c., and also with the clause which declares that Congress shall have the power to regulate commerce. The reasoning of the court was this: Sale is the object of all importation of goods, and the power to allow importation must therefore imply the power to authorize the sale of the thing imported; that consequently a penalty inflicted for selling an article in the character of importer was in opposition to the act of Congress, which authorized importation; that a power to tax an article in the hands of the importer the instant it was landed was the same in effect as a power to tax it whilst entering the port; that consequently the law of Maryland was obnoxious to the charge of unconstitutionality, on the ground of its violating the two provisions referred to.2 And a State law which required the master of every vessel engaged in foreign commerce to pay a certain sum to a State officer, on account of every passenger brought from a foreign country into the State, or before landing any alien passenger, was held void for similar reasons.3 On the other hand, a law of the State of New York was sustained which required,. under a penalty, that the master of every vessel arriving from a foreign port should report to the mayor or Ash v. People, 11 Mich. 347. See ante, p. 201. Also Dillon, Mun. Corp. §§ 291-294 and notes. Brown v. Maryland, 12 Wheat. 419. Passenger Cases, 7 How. 283; see also Lin Sing v. Washburn, 20 Cal. 534, where a State law imposing a special tax on every Chinese person over eighteen years of age for each month of his residence in the State was held unconstitutional, as in conflict with the power of Congress over commerce. |