five years, to have and maintain slaughter houses, landings for cattle and yards for enclosing cattle intended for sale or slaughter within the parishes of Orleans, Jefferson and St. Bernard, in that State (a territory which it was said contained 1,154 square miles, including the city of New Orleans, and a population of between two and three hundred thousand people), and prohibiting all other persons from building, keeping or having slaughter houses, landings for cattle and yards for cattle intended for sale or slaughter, within those limits; and requiring that all cattle and other animals intended for sale or slaughter in that district should be brought to the yards and slaughter houses of the corporation; and authorizing the corporation to exact certain prescribed fees for the use of its wharves, and for each animal landed, and certain prescribed fees for each animal slaughtered, besides the head, feet, gore and entrails, except of swine. It was held that this grant of exclusive right or 1 Slaughter House Cases, 16 Wall. 36. It cannot be denied that the statute under consideration is aptly framed to remove from the more densely populated part of the city, the noxious slaughter houses, and large and offensive collections of animals necessarily incident to the slaughtering business of a large city, and to locate them where the convenience, health and comfort of the people require they shall be located. And it must be conceded that the means adopted by the act for this purpose are appropriate, are stringent and effectual. But it is said that in creating a corporation for this purpose, and conferring upon it exclusive privileges.-privileges which it is said constitute a monopoly,-the legislature exceeded its power. If this statute had imposed on the city of New Orleans precisely the same duties, accompanied by the same privileges, which it has on the cor poration which it created, it is believed that no question would have been raised as to its constitutionality. In that case the effect on the butchers in pursuit of their occupation and on the public would have been the same as it is now. Why cannot the legislature confer the same powers on another corporation, created for a lawful and useful public object, that it can on the municipal corporation already existing? That wherever a legislature has the right to accomplish a certain result, and that result is best attained by means of a corporation, it has the right to create such a corporation, and to endow it with the powers necessary to effect the desired and lawful purpose, seems hardly to admit of debate. The proposition is ably discussed and affirmed in the case of McCulloch v. State of Maryland (4 Wheat. 316), in relation to the power of Congress to organize the privilege, guarded by proper limitation of the prices to be charged, and imposing the duty of providing ample conveniences, with permission to all owners of stock to land, and of all butchers to slaughter at those places, was a police Bank of the United States to aid in the fiscal operations of the government. It can readily be seen that the interested vigilance of the corporation created by the Louisiana legislature will be more efficient in enforcing the limitation prescribed for the stock landing and slaughtering business for the good of the city, than the ordinary efforts of the officers of the law. Unless, therefore, it can be maintained that the exclusive privilege granted by the charter to the corporation is beyond the power of the legislature of Louisiana, there can be no just exception to the validity of the statute. And in this respect we are not able to see that these privileges are especially odious or objectionable. The duty imposed as a consideration for the privilege is well defined, and its enforcement well guarded." Ibid., 64. The business which the defendant carries on in his slaughter house, without the written consent and permission of the selectmen of Watertown, is in plain violation of the provisions of the St. 1871, chap. 167, which prohibit the use of any building for slaughtering cattle, etc., or for other noxious or offensive trades, without such consent, in any city or town containing more than four thousand inhabitants. All rights to the use and enjoyment of property, secured by the Constitution of the United States, or of this commonwealth, are subject to regulation under that power known as the police power of the State, which, * * like the power of taxation, is necessary to its existence, and which is implied in the idea of free civil government. It is defined by Blackstone to be that power which concerns the due regulation and domestic order of the kingdom, whereby the individuals of the State, like members of a wellgoverned family, are bound to conform their general behavior to the rules of propriety, good neighborhood and good manners, and to be decent, industrious and inoffensive in their respective stations.' 4 Blackstone's Commentaries, 162. It has its foundation in that maxim of all well-ordered society, which requires everyone to use his own, so as not to injure the equal enjoyments of others having equal rights of property. Laws passed in the legitimate exercise of this power are not obnoxious to constitutional provisions, although in some measure interfering with private rights. merely because they do not provide compensation to the individual whose liberty is restrained. He is presumed to be rewarded by the common benefits secured. differs from the right of eminent domain, which involves the appropriation of private property to public use, and requires, in its lawful exercise, pecuniary compensation for the loss inflicted on the owner. Familiar instances of its exercise are found in all quarantine and fire regulations; and it has been repeatedly recognized and variously applied in the decisions of this court. Commonwealth v. It regulation, for the health and comfort of the people (the statute locating them where health and comfort required) within the power of the State legislatures, unaffected by the Constitution of the United States previous to the adoption of the thirteenth and fourteenth articles of amendment. In the opinion in this case, the court said: "The wisdom of the monopoly, granted by the legislature, may be open to question, but it is difficult to see a justification for the assertion that the butchers are deprived of the right to labor in their occupation, or the people of their daily service in preparing food, or how this statute, with the duties and guards imposed upon the company, can be said to destroy the business of the butcher or seriously interfere with its pursuit. The power here exercised by the legislature of Louisiana is, in its essential nature, one which has been, up to the present period in the constitutional history of this country, always conceded to belong to the States, however it may be questioned in some of its details. Unwholesome trades, slaughter houses, operations offensive to the senses, the deposit of powder, the application of steam power to propel cars, the building with combustible materials and the burial Alger, 7 Cush. 53; Fisher v. McGirr, 1 Gray, 1; Commonwealth v. Tewksbury, 11 Met. 55; Baker v. Boston, 12 Pick. 184; Vandine, Petitioner, 6 Pick. 187." Watertown v. Mayo. 109 Mass. 315, 317. See also Metropolitan Board v. Heister, 37 N. Y. 661. An ordinance of the city of New Orleans prescribed the place where slaughter houses must be located. Relying upon this designation of such place, complainant secured land within its limits, and proceeded thereon to erect houses and make other improvements for slaughtering purposes, when the city amended the ordinance by making it unlawful to maintain slaughter houses in the prescribed place, "except permission be granted by the council of the city of New Orleans," and proceeded to prevent complainant, who had no such permission, from carrying on his slaughtering business. Held, that the amendment is unconstitutional because it would, in effect, deny complainant the equal protection of the laws guaranteed by the XIVth Amendment of the United States Constitution. The prevention by the city of the complainant's exercise of his business is enjoinable in equity as being likely to do him irreparable injury for which damages at law would be no adequate compensation. Barthel v. City of New Orleans, 24 Fed. Rep. 563; s. C., 9 Am. & Eng. Corp. Cas. 509. of the dead, may all,' says Chancellor Kent, 'be interdicted by law, in the midst of dense masses of population, on the general and rational principle, that every person ought so to use his property as not to injure his neighbors; and that private interests must be made subservient to the general interests of the community.' This is called the public power; and it is declared, by Chief Justice Shaw, that it is much easier to perceive and realize the existence and sources of it than to mark it boundaries, or prescribe limits to its exercise. The power is, and must be, from its very nature, incapable of any very exact definition or limitation. Upon it depends the security of social order, the life and health of the citizen, the comfort of an existence in a thickly populated community, the enjoyment of private and social life and the beneficial use of property. It extends,' says another eminent judge, 'to the protection of the lives, limbs, health, comfort and quiet of all persons, and the protection of all the property within the State; and persons and property are subjected to all kinds of restraints and burdens in order to secure the general comfort, health and prosperity of the State. Of the perfect right of the legislature to do this no question ever was, or, upon acknowledged general principles, ever can be made, so far as natural persons are concerned.' The regulation of the place and the manner of conducting the slaughtering of animals, and the business of butchering within a city, and the inspection of the animals to be killed for meat, and of the meat afterwards, are among the most necessary and frequent exercises of the power. It is not, therefore, that we seek for a comprehensive definition, but rather look for the proper source of its exercise."1 § 132. Legislative and Business Powers Distinguished. There is a well established distinction between 1 Slaughter House Cases, 16 Wall. 36, 61. See also 2 Kent's Commentaries, 340; Commonwealth v. Ar, 7 Cush. 84; Thorpe v. Rut land, etc. R. R. Co., 27 Vt. 149; Gibbons v. Ogden, 9 Wheat. 203; City of New York v. Miln, 11 Pet. 103; License Tax Cases, 5 Wall. the ordinary legislative power of a municipal government and its capacity to transact business relating to the affairs of the city. There are cases in which the distinction is of practical and vital importance. In the case of The City of Valparaiso v. Gardner, the court said: "The important and controlling questions which confronts us here is as to the power of the municipal corporation to enter into the contract described in the pleadings. We have no doubt that the corporation had authority to contract for a supply of water for a period of twenty years, and that the contract cannot be overthrown solely on the ground that it is a surrender of legislative power. There is a distinction between powers of a legislative character and powers of a business nature. The power to execute a contract for goods, for houses, for gas, for water and the like, is neither a judicial nor a legislative power, but is purely a business power. The question is, however, so firmly settled by authority that we deem it unnecessary to further discuss it.”1 471; United States v. DeWitt, 9 City of Valparaiso v. Gardner, 97 Ind. 1, 4. See also City of Indianapolis v. Indianapolis, etc. Co., 66 Ind. 396. "The defendants are a corporation, and in that capacity are authorized by their charter, and by laws, to purchase and hold, sell and convey real estate, in the same manner as individuals. They are considered a person in law within the scope of their corporate powers, and are subject to the same liabilities, and entitled to the same remedies, for the violation of contracts, as natural persons. They are also clothed, as well by their charter as by subsequent statutes of the State, with legislative powers, and in the capacity of a local legislature are particularly charged with the care of the public morals and the public health within their own jurisdiction. In ascertaining their rights and liabilities as a corporation, or as an individual, we must not consider their legislative character. They had no power, as a party, to make a contract which should control or embarrass their legislative powers and duties. Their enactments, in their legislative capacity, are to have the same effect upon their individual acts as upon those of any other persons, or the public at large, and no other effect." Presbyterian Church v. City of New York, 5 Cow. 538, 540. |