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There is only one case that I can find in support of mechanical purposes, and before the passage of the prothat theory, Amsbey v. Hinds, 46 Barb. 622; but even hibitory liquor statute of that State. Second. That they that expressly states that non-user cannot be predi were erected for the purpose of manufacturing beer, cated on an obstruction by the owner whose interest | and cannot be put to any other use; and if not so it is to gain the laud. The better opinion therefore used, they will be of little value. Third. That the would seem to be that the adjoining owners could not statute under which said suit is brought is void under gain title by the illegal closing of the road, which they the Fourteenth Amendment of the Constitution of fenced in.
the United States. As a matter of fact, every case of this kind is usually | Upon the petition and bond of the defendants the modified by circumstances peculiar to itself; and all cause was removed into the Circuit Court of the United that is intended in this article is to discuss in a
States for the district of Kansas upon the ground that general way some of the different questions that might the suit was one arising under the Constitution of the arise, and to indicate the difficulties that surround the United States. A motion to remand it to the State examination of titles in which an old Dutch road court was denied. The pleadings were recast so as to plays a prominent part.
conform to the equity practice in the courts of the John L. MELCHER. United States; and the cause having been heard upon
bill and answer, the suit was dismissed. From that
decree the State prosecutes an appeal. CONSTITUTIONAL LAW - PROHIBITORY By a statute of Kansas, approved March 3, 1868, it LIQUOR LAW.
was made a misdemeanor, punishable by fine and im
prisonment, for any one, directly or indirectly, to sell SUPREME COURT OF THE UNITED STATES, DEC. 5, 1887. spirituous, vinous, fermented, or other intoxicating
liquors, without having a dram-shop, tavern or groMUGLER V. STATE OF KANSAS; STATE OF KANSAS V.
cery license. It was also enacted, among other things, ZIEBOLD AND HAGELIN,
that every place where intoxicating liquors were sold
in violation of the statute should be taken, held and The State may absolutely prohibit the manufacture and sale
deemed to be a common nuisance; and it was reof intoxicating liquors as a beverage, and may declare
quired that all rooms, taverns, eating-houses, bazaars, places where such liquors are manufactured or sold to be
restaurants, groceries, coffee-houses, cellars, or other nuisances, and may authorize their abatement upon due
places of public resort where intoxicating liquorg judicial finding to that effect, and the destruction of such
were sold, in violation of the law, should be abated liquors found therein and of all property used in keeping
as public nuisances. Gen. Stat. Kans., 1868, ch. 35. and manufacturing such nuisances, and the fining and
But in 1880 the people of Kansas adopted a more imprisonment of their keepers, and a perpetual injunction
stringent policy. On the 2d of November of that year against the same.
they ratified an amendment to the State Constitution Such a statute is valid as to such liquors lawfully manufac.
which declared that the manufacture and sale of intured before the enactment of the statute, and although
toxicating liquors should be forever prohibited in that It greatly deteriorates the value of property lawfully used
State, except for medical, scientific and mechanical in such manufacture before the enactment of the statute.
purposes. A PPEAL from the Circuit Court of the United In order to give effect to that amendment, the LegA States for the District of Kansas.
islature repealed the act of 1868, and passed an act, HARLAN, J. These cases involve an inquiry into the approved February 19, 1881, to take effect May 1, 1881, validity of certain statutes of Kansas relating to the entitled "An act to prohibit the manufacture and sale manufacture and sale of intoxicating liquors.
of intoxicating liquors, except for medical, scientific The first two are indictments, charging Mugler, the and mechanical purposes, and to regulate the manuplaintiff in error, in one case, with having sold, and facture and sale thereof for such excepted purposes." in the other with having manufactured, spirituous, Its first section provides " that any person or persons vinous, malt, fermented and other intoxicating liquors who shall manufacture, sell or barter any spirituous, in Saline county, Kansas, without having the license malt, viuous, fermented, or other intoxicating liquors or permit required by the statute. The defendant shall be guilty of a misdemeanor: Provided however, having been found guilty, was fined in each case $100, That such liquors may be sold for medical, scientific and ordered to be committed to the county jail until and mecbanical purposes, as provided in this act.” the fine was paid. Each judgment was affirmed by The second section makes it unlawful for any person the Supreme Court of Kansas, and thereby, it is con to sell or barter for either of such excepted purposes tended, the defendant was denied rights, privileges any malt, vinous, spirituous, fermented, or other inand immunities guaranteed by the Constitution of | toxicating liquors without having procured & drugthe United States.
gist's permit therefor, and prescribes the conditions The third case-Kansas v. Ziebold & Hagelin-was upon which such permit may be granted. The third commenced by petition filed in one of the section relates to the giving by physicians of prescripcourts of the State. The relief sought is: 1. That tions for intoxicating liquors to be used by their pathe group of buildings in Atchison county, Kansas, | tients, and the fourth, to the sale of such liquors by constituting the brewery of the defendants, partners druggists. The fifth section forbids any person from as Ziebold & Hagelin, be adjudged a common nui. manufacturing or assisting in tho manufacture of insance, and the sheriff or other proper officer directed toxicating liquors in the State, except for medical, to shut up and abate the same. 2. That the defend- | scientific and mechanical purposes, and makes provisants be enjoined from using, or permitting to be used, ion for the granting of licenses to engage in the busithe said premises as a place where intoxicating liquors ness of manufacturing liquore for such excepted purmay be sold, bartered, or given away, or kept for bar poses. The seventh section declares it to be a misdeter, sale, or gift, otherwise than by authority of law. meanor for any person, not having the required per
The defendants answered, denying the allegations mit, to sell or barter, directly or indirectly, spirituous, of the petition, and averring: First. That said build | malt, vinous, fermented, or other intoxicating liquore, ings were erected by them prior to the adoption by the punishment prescribed being, for the first offense, the people of Kansas of the constitutional amend- | a fine of not less than $100 nor more than $500, or imment prohibiting the manufacture and sale of Intoxi prisonment in the county jail not less than twenty oating liquors for other than medicinal, scientifio and nor more than ninety days; for the second offense, a fino of not less than $200 por more than $500, or im- | conflict between the exercise by Congress of its power prisonment in the county jail not less than sixty days to regulate commerce with foreign countries, or uor more than six months; and for every subsequent among the several States, and the exercise by a State offense, a fine not less than $500 nor more than $1,000, of what are called police fowers. Although the memor imprisonment in the county jail not less than three bers of the court did not fully agree as to the grounds months nor more than one year, or both such fine and upon which the decision should be placed, they were imprisonment, in the discretion of the court. The unanimous in holding that the statutes then under eighth section provides for similar fines and punish examination were not inconsistent with the Constituments against persons who manufacture, or aid, assist tion of the United States, or with any act of Congress. or abet the manufacture of any intoxicating liquors Chief Justice Taney said: “If any State deems the without having the required permit. The thirteenth retail and internal traffic in ardent spirits injurious section declares, among other things, all places where to its citizens, and calculated to produce idleness, intoxicating liquore are manufactured, sold, bartered, vice, or debauchery, I see nothing in the Constitution or given away, or are kept for sale, barter, or use, in | of the United States to prevent it from regulating violation of the act, to be common nuisances; and pro and restraining the traffic, or from prohibiting it vides that upon the judgment of any court having ju altogether, if it thinks proper.” Mr. Justice McLean, risdiction finding such place to be a nuisance, the among other things, said: “A State regulates its doproper officer shall be directed to shut up and abate mestio commerce, contracts, the transmission of esthe same.
tates, real and personal, and acts upon interual matUnder that statute, the prosecutions against Mug ters which relate to its moral and political welfare. ler were instituted. It contains other sections in ad Over these subjects the Federal government has no dition to those above referred to; but as they embody power. * * * The acknowledged police power of a merely the details of the general scheme adopted by State extends often to the destruction of property. A the State for the prohibition of the manufacture and nuisance may be abated. Every thing prejudicial to sale of intoxicating liquors, except for the purposes the health or morals of a city may be removed." specified, it is unnecessary to set them out.
Mr. Justice oodbury observed : “How can they On the 7th of March, 1885, the Legislature passed an (the States) be sovereign within their respective act amendatory and supplementary to that of 1881. spheres, without power to regulate all their internal The thirteenth section of the former act, being the one commerce, as well as police, and direct how, when and upon which the suit against Ziebold and Hagelin is where it shall be conducted in articles intimately confounded, will be given in full in a subsequent part of nected either with public morals or publio safety or this opinion.
public prosperity?” Mr. Justice Grier, in still more The facts necessary to a clear understanding of the emphatic language, said: “The true question prequestions common to these cases are the following: sented by these cases, and one which I am not Mugler and Ziebold & Hagelin were engaged in manu. disposed to evade, is whether the States have a right facturing beer at their respective establishments (con to prohibit the sale and consumption of an article of structed specially for that purpose) for several years commerce which they believe to be pernicious in its prior to the adoption of the constitutional amend effects, and the cause of disease, pauperism and crime. ment of 1880. They continued in such business in de * * * Without attempting to define what are the fiance of the statute of 1881, and without having the peculiar subjeets or limits of this power, it may sately required permit. Nor did Mugler have a license or be affirmed that every law for the restraint or punishpermit to sell beer. The single sale of which he was ment of crime, for the preservation of the public peace, found guilty occurred in the State, and after May 1, health and morals must come within this category. 1881, that is, after the act of February 19, 1881, took * * * It is not necessary, for the sake of justifyeffect, and was of beer manufactured before its pas. ing the State legislation now under consideration, to ваgе.
array the appalling statistics of misery, pauperism The buildings and machinery constituting these and crime which have their origin in the use or breweries are of little value if not used for the pur abuse of ardent spirits. The police power, which is pose of manufacturing beer; that is to say, if the stat exclusively in the States, is alone competent to the utes are enforced against the defendants the value of correction of these great evils, and all measures of retheir property will be very materially diminished. straint or prohibition pecessary to effect the purpose
The general question in each case is, whether the are within the scope of that authority." foregoing statutes of Kansas are in conflict with that In Bartemeyer v. Ioua, 18 Wall. 129, it was said, that clause of the Fourteenth Amendment which provides prior to the adoption of the Fourteenth Amendment, that "no State shall make or enforce any law which State enactments regulating or prohibiting the traffic Bhall abridge the privileges or immunities of citizens in intoxicating liquors raised no question under the of the United States; uor shall any State deprive any Constitution of the United States; and that such leg. person of life, liberty, or property without due pro islation is left to the discretion of the respective cess of law."
States, subject to no other limitations than those imThat legislation by a State prohibiting the manu posed by their own Constitutions, or by the general facture within its limits of intoxicating liquors, to be principles supposed to limit all legislative power. Rethere sold or bartered for general use as a beverage, dves | ferring to the contention tbat the right to sell intoxinot necessarily infringe any right, privilege, or immu | cating liquors was secured by the Fourteenth Amendnity secured by the Constitution of the United States, ment, the court said, that “so far as such a right exis made clear by the decisions of this court, rendered ists, it is not one of the rights growing out of citizenbefore and since the adoption of the Fourteenth ship of the United States." Amendment, to some of which, in view of the ques In Beer Co. v. Massachusetts, 97 U. S. 33, it was said, tions to be presently considered, it will be well to that “as a measure of police regulation, looking to refer.
the preservation of publio morals, a State law probibIn the License cases, 5 How. 504, the question was, | iting the manufacture and sale of intoxicating liquors whether certain statutes of Massachusetts, Rhode is not repugnant to any clause of the Constitution of Island and New Hampshire, relating to the sale of the United States." spirituous liquors were repugnant to the Constitution Finally in Foster v. Kansas, 112 U. S. 206, the court of the United States. In determining that question, said that the question as to the constitutional power it became necessary to inquire whether there was any of a State to probibit the manufacture and sale of ju. toxicating liquors was no longer an open one in this the courts must obey the Constitution rather than court. These cases rest upon the acknowledged right the law-making department of government, and must of the States of the Union to control their purely in- | upon their own responsibility determine whether, in ternal affairs, and in so doing, to protect the health, any particular case, these limits have been passed. morals and safety of their people by regulations that “To what purpose," it was said in Marbury v. Madi. do not interfere with the execution of the powers of son, 1 Crauch, 137, 167, "are powers limited, and to the general government, or violate rights secured by what purpose is that limitation committed to writthe Constitution of the United States. The power to ing, if these limits may, at any time, be passed by establish such regulations, as was said in Gibbows v. those intended to be restrained? The distinction beOgden, 9 Wheat. 203, reaches every thing within the tween a government with limited and unlimited territory of a State not surrendered to the national powers is abolished, if those limits do not confine the government.
persons on whom they are imposed, and if acte proIt is however contended, that although the State hibited and acts allowed are of equal obligation." may prohibit the manufacture of intoxicating liguors The courts are not bound by mere forms, nor are they for sale or barter within her limits, for general use as to be misled by mere pretenses. They are at liberty a beverage, "no convention or Legislature has the right -indeed are under a solemn duty--to look at the subunder our form of government to prohibit any citizen stance of things, whenever they enter upon the infrom manufacturing for his own use, or for export or quiry whether the Legislature has transcended the lim. storage, any article of food or drink not endangering its of its authority. If therefore a statute purporting or affecting the rights of others." The argumeut made to have been enacted to protect the public health, the in support of the first branch of this proposition, publio morals, or the public safety, has no real or briefly stated, is tbat in the implied compact between substantial relation to those objects, or is a palpable the State and the citizen, certain rights are reserved invasion of rights secured by the fundamental law, it by the latter, which are guaranteed by the constitu is the duty of the courts to go adjudge, and thereby tional provision protecting persons against being de give effect to the Constitution. prived of life, liberty, or property, without due pro Keeping in view these principles as governing the cess of law, and with which the State cannot inter relations of the judicial and legislative departments fere; that among those rights is that of manufactur of government with each other, it is difficult to pering for one's use either food or drink; and that while ceive any ground for the judiciary to declare that the according to the doctrines of the Commune, the State | probibition by Kansas of the manufacture or sale, may control the tastes, appetites, habits, dress, food | within her limits, of intoxicating liquors for general and drink of the people, our system of government, use there as a beverage, is not fairly adapted to the based upon the individuality and intelligence of the end of protecting the community against the evils citizen, does not claim to control him, except as to which confessedly result from the excessive use of his conduct to others, leaving him the sole judge as to ardent spirits. There is no justification for holding all that only affects himself.
that the State, under the guise merely of police reguIt will be observed that the proposition, and the ar- | lations, is here aiming to deprive the citizen of his gument made in support of it, equally concede that constitutional rights; for we cannot shut out of view the right to manufacture drink for one's personal use the fact, within the knowledge of all, that the public is subject to the condition that such manufacture health, the public morals and the public safety may does not endanger or affect the rights of others.be endangered by the general use of intoxicating If such manufacture does prejudicially affect the drinks; nor the fact, established by statistics accessirights and interests of the community, it followe, ble to every one, that the idleness, disorder, pauperfrom the very premises stated, that society has the ism and crime existing in the country are, in some power to protect itself, by legislation, against the in degree at least, traceable to this evil. If therefore a jurious consequences of that business. As was said State deems the absoluto prohibition of the manufacin Munn v. Illinois, 94 U. S. 124, while power does not ture and sale within her limits of intoxicating liquors exist with the whole people to control rights that are for other than medical, scientific and manufacturing purely and exclusively private, government may re purposes, to be necessary to the peace and security of quire “ each citizen to so conduct himself, and so use society, the courts cannot, without usurping legislahis own property, as not unnecessarily to injure an tive functions, override the will of the people as thus other."
expressed by their chosen representatives. They have But by whom, or by what authority, is it to be de nothing to do with the more policy of legislation. Intermined whether the manufacture of particular arti deed it is a fundamental principle in our institutions, cles of drink, either for general use or for the per indispensable to the preservation of public liberty, sonal use of the maker, will injuriously affect the pub that one of the separate departments of government lic? Power to determine such questions, so as to bind | shall not usurp powers committed by the Constituall, must exist somewhere, else society will be at the tion to another department. And so, if in the judgmercy of the few, who regarding only their own ap ment of the Legislature, the manufacture of intoxipetites or passions, may be willing to imperil the peace cating liquors for the maker's own use, as a beverage, and security of the many, provided only they are per would tend to cripple, if it did not defeat, the effort mitted to do as they please. Under our system that to guard the community against the evils attending power is lodged with the legislative branch of the gov. the excessive use of such liquors, it is not for the ernment. It belongs to that department to exert courts, upon their views as to what is best and what are known as the police powers of the State, and safest for the community, to disregard the legislative to determine primarily what measures are appropriate determination of that question. So far from such a or needful for the protection of the public morals, tbe regulation having no relation to the general end public bealth, or the public safety.
sought to be accomplished, the entire scheme of proIt does not at all follow that every statute euacted hibition, as embodied in the Constitution and laws of ostensibly for the promotion of these ends is to be ao Kansas, might fail, if the right of each citizen to cepted as a legitimate exertion of the police powers of manufacture intoxicating liquors for his own use as the State. There are, of necessity, limits beyond which a beverage were recognized. Such a right does not legislation cannot rightfully go. While every possi- | inhere in citizenship. Nor can it be said that govble presumption is to be indulged in favor of the VX-| ernment interferes with or impairs any one's constilidity of a statute (Sinking Fund cases, 99 U. S. 718), tutional rights of liberty or of property, when it determines that the manufacture and sale of in- 111 U. S. 751, said that the State could not by any contoxicating drinks, for general or individual use, as a tract limit the exercise of her power to the prejudice beverage, are, or may become hurtful to society, and of the public health and the public morals. So in constitute therefore a business in which no one may | Stone v. Mississippi, 101 U, S. 816, where the Constilawfully engage. Those rights are best secured in our | tution was invoked against the repeal by the State of goverument by the observance upon the part of all, of a charter granted to a private corporation to conduct such regulations as are established by common author a lottery, and for which that corporation paid to the ity to promote the common good. No one may right Stato a valuable consideration in money, the court fully do that which the law-making power, upon rea said: “No Legislature can bargain away the publio sonable grounds, declares to be prejudicial to the geu health or the public morals. The people themselves eral welfare.
cannot do it, much less their servants. * * * Gov. This conclusion is unavoidable, unless the Four- ernment is organized with a view to their preservateenth Amendment of the Constitution takes from tion, and cannot divest itself of the power to provide the States of the Union those powers of police that for them.” Again in New Orleans Gas Co. v. Louisiana were reserved at the time the original Constitution Light Co., 115 U. 8. 650, 672: “ The constitutional prowas adopted. But this court has declared, upon full hibition upon State laws impairing the obligation of consideration, in Barbier v. Connolly, 113 U. S. 31, | contracts does not restrict the power of the State to that the Fourteenth Amendment bad no such effect. protect the public health, the public morals, or the After observing, among other things, that the amend | public safety, as the one or the other may be involved ment forbade the arbitrary deprivation of life or lib- in the execution of such contracts. Rights and privierty, and the arbitrary spoliation of property, and se- leges arising from contracts with a State are subject cured equal protection to all under like circumstances to regulations for the protection of the public health, in respect as well to their personal and civil rights as the public morals and the public safety, in the same to their acquisition and enjoyment of property, the sense, and to the same extent, as are all contracts and court said: " But neither the amendment, broad and all property, whether owned by natural persons or comprehensive as it is, nor any other amendment, corporations." was designed to interfere with the power of the State, The principle that no person shall be deprived of sometimes termed its police power, to prescribe regu life, liberty, or property, without due process of law, lations to promote the health, peace, morals, educa was embodied, in substance, in the Constitutions of tiou and good order of the people, and to legislate so nearly all, if not all of the States at the time of the as to increase the industries of the State, develop its adoption of the Fourteenth Amendment; and it has resources, and add to its wealth and prosperity.” never been regarded as incompatible with the princi
Undoubtedly the State, when providing by legisla-l ple, equally vital, because essential to the peace and tion for the protection of the public health, the public safety of society, that all property in this country is morals, or the public safety, is subject to the para held under the implied obligation that the owner's use mount authority of the Constitution of the United of it shall not be injurious to the commuity. Beer States, and may not violate rights secured or guaran Co. v. Massachusetts, 97 U. S. 32; Commonwealth v. teed by that instrument, or interfere with the execu Alger, 7 Cush. 53. An illustration of this doctrine is tion of the powers confided to the general govern afforded by Patterson v. Kentucky. 97 U. S. 501. The ment. Henderson v. Mayor of New York, 92 U. S. question there was as to the validity of a statute of 239; Railroad Co. v. Husen, 95 id. 465; New Orleans Kentucky, enacted in 1874, imposing a penalty upon Gas-Light Co. v. Louisiana Light Co., 115 id. 650; any one selling or offering for sale oils and fluids, the Walling v. Michigan, 116 id. 446; Yick Wo v. Hopkins, product of coal, petroleum, or other bituminous sub118 id. 356; Morgan's Steamship Co. v. Louisiana stances, which would burn or ignite at a temperature Board of Health, id. 455.
below 130° Fahrenheit. Patterson having sold, within Upon this ground, if we do not misapprehend the that Commonwealth, a certain oil, for which lettersposition of the defendants, it is contended that as the patent were issued in 1867, but which did not come up primary and principal use of beer is as a beverage; as to the standard required by said statute, and having their respective breweries were erected when it was been indicted therefor, disputed the State's authority lawful to engage in the manufacture of beer for every to prevent or obstruct the exercise of that right. This purpose; as such establishments will become of no court upheld the legislation of Kentucky, upon the value as property, or at least will be materially dimin ground, that while the State could not impair the exished in value, if not employed in the manufacture of | clusive right of the patentee, or of his assignee, in the beer for every purpose; the probibition upon their discovery described in the letters-patent, the tangible being so employed is, in effect, a taking of property property, the fruit of the discovery, was not beyond for publio use without compensation, and depriving control in the exercise of her police powers. It was the citizen of his property without due process of law. said: “By the settled doctrines of this court the In other words, although the State in the exercise of police power extends, at least, to the protection of the her police powers may lawfully prohibit the manu lives, the health, aud the property of the community facture and sale within her limits of intoxicating against the injurious exercise by any citizen of his own liquors to be used as a beverage, legislation having | rights. State legislation, strictly and legitimately for that object in view cannot be enforced aguinst those police purposes, does not, in the sense of the Constituwho at the time happen to own property, the chief tion necessarily trench upon any authority which value of which consists in its fitness for such manu | bas been confided, expressly or by implication, to the facturing purposes, unless compensation is first made national government. The Kentucky statute under for the diminution in the value of their property re examination manifestly belongs to that class of legissulting from such prohibitory enactments.
lation. It is in the best sense a mere police regulaThis interpretation of the Fourteenth Amendment | tion, deemed essential to the protection of the lives is inadmissible. It cannot be supposed that the States and property of citizens." Referring to the numerous intended by adopting that amendment to impose re decisions of this court guarding the power of Congress straints upon the exercise of their powers for the pro to regulate commerce against encroachment, under tection of the safety, health, or morals of the com the guise of State regulations, established for the pur. munity. In respect to contracts. the obligations of pose and with the effect of destroying or impairing which are protected against hostile State legislation, I rights secured by the Constitution, it was further said: this court, in Butchers' Union Co. v. Crescent City Co., “It has nevertheless, with marked distiuctness and uniformity, recognized the necessity growing out of zen, as those rights stood at the common law, instead the fundamental conditions of civil society, of uphold- of the government, and make it an authority for the iug State police regulations which were enacted in invasion of private rights under the pretext of the good faith, and had appropriate and direct connection public good, which had no warrant in the laws or with that protection to life, health and property which practices of our ancestors." each State owes to her citizen." See also United States These principles have no application to the case v. Dewitt, 9 Wall. 41; License Tax Cases, 5 id. 462; under consideration. The question in Pumpelly v. Pervear v. Commonwealth. id. 475.
Green Bay Company arose under the State's power of Another decision, very much in point upon this eminent domain; while the question now before us branch of the case, is Fertilizing Co. v. Hyde Park, .7 | arises under wbat are strictly the police powers of the U. S. 659, 667, also decided after the adoption of the State, exerted for the protection of the health, morals Fourteenth Amendment. The court there sustained and safety of the people. That case, as this court said the validity of an ordinance of the village of Hyde in Transportation Co. v. Chicago, 99 U. S. 642, was an Park, in Cook county, Illinois, passed under legisla extreme qualification of the doctrine, universally tive authority, forbidding any person from transport held, that “acts done in the proper exercise of governing through that village offal or other offensive or un mental powers, and not directly encroaching upon wholesome matter, or from maintaining or carrying private property, though these consequences may imon an offensive or unwholesome business or establish- pair its use," do not constitute a taking within the ment within its limits. The Fertilizing Company had, meaning of the constitutional provision, or entitle the at large expense, and under authority expressly con- owner of such property to compensation from the ferred by its charter, located its works at a particular State or its agents, or give him any right of action. point in the county. Besides the charter of the village It was a case in which there was a “permanent floodat that time provided that it should not interfere withing of private property," a "physical invasion of the parties engaged in transporting animal matter from real estate of the private owner, and a practical ouster Chicago, or from manufacturing it into a fertilizer or of his possession." His property was in effect required other chemical product. The enforcement of the ordi- to be devoted to the use of the public, and cousenance in questiou operated to destroy the business of quently he was entitled to compensation. the company, and seriously to impair the value of its | As already stated, the present case must be governed property. As however its business had become a by principles that do not involve the power of eminent puisance to the community in which it was conducted, domain, in the exercise of which property may not be producing discomfort, and often sickness among large | taken for public use without compensation. A promasses of people, the court maintained the authority hibition simply upon the use of property for purposes of the village, acting under legislative sanction, to that are declared by valid legislation to be injurious protect the public health against such nuisance. It to the health, morals, or safety of the community, said: “We cannot doubt that the police power of the cannot in any just sense be deemed a taking or an State was applicable and adequate to give an effectual appropriation of property for the public benefit. Such remedy. That power belonged to the States when the legislation does not disturb the owner in the control Federal Constitution was adopted. They did not sur: or use of his property for lawful purposes, nor restrict render it, and they all have it now. It extends to the his right to dispose of it, but is only a declaration by entire property and business within their local juris- the State that its use by any one for certain forbidden diction. Both are subject to it in all proper cases. It purposes is prejudicial to the public interests. Nor rests upon the fundamental principle that every one can legislatiou of that character come within the Fourshall so use his own as not to wrong and injure another. teenth Amendment in any case, unless it is apparent To regulate and abate nuisances is one of its ordinary that its real object is not to protect the community, functions."
or to promote the general well-being, but under the It is supposed by the defendants that the doctrine guise of police regulation to deprive the owner of his for which they contend is sustained by Pumpelly v. liberty and property, without due process of law. The Green Bay Co., 13 Wall. 168. But in that view we do power which the States have of prohibiting such use not coucur. That was an actiou for the recovery of by individuals of their property as will be prejudicial damages for the overflowing of the plaintiff's land by to the health, the morals, or the safety of the public, water, resulting from the construction of a dam across is not - and consistently with the existence and safety a river. The defense was that the dam constituted a of organized society, cannot be - burdened with the part of the system adopted by the State for improving condition that the State must compensate such indithe navigation of Fox and Wisconsin rivers; and it was vidual owners for pecuniary losses they may sustain, contended that as the damages of which the plaintiff by reason of their not being permitted, by a noxious complained were only the result of the improvement | use of their property, to inflict injury upon the comunder legislative sanction of a pavigable stream, he munity. The exercise of the police power by the dewas not entitled to compensation from the State or its struction of property which is itself a public nuisance, agents. The case therefore involved the question or the prohibition of its use in a particular way, whether the overflowing of the plaintiff's land to such whereby its value becomes depreciated is very different an extent that it became practically uufit to be used from taking property for public use, or from depriving was a taking of property, within the meaning of the a person of his property without due process of law. Constitution of Wisconsin, providing that “the prop- | In the one case, a nuisance is only abated; in the erty of no person shall be taken for public use with other, unoffending property is taken away from an out just compensation therefor.” This court said it innocent owner. would be a very curious and unsatisfactory result It is true, that when the defendants in these cases were it held that “if the government refrains from purchased or erected their breweries, the laws of the the absolute conversion of real property to the uses of State did uot forbid the manufacture of intoxicating the publio, it can destroy its value entirely, can iuflict liquors. But the State did not thereby give any asirreparable and permanent injury to any extent, cansurance or come under an obligation that its legislain effect subject it to total destruction, without tion upon that subject would remain unchanged. Inmaking any compensation, because in the narrowest deed as was said in Stone v. Mississippi, 101 U.S., the sense of that word, it is not taken for the public use. supervision of the public health and the public morals Such a construction would pervert the constitutional is a governmental power, "continuing in its nature," provision into a restriction upon the rights of the citi- and "to be dealt with as the special exigencies of the