The State may also regulate the grade of railways, and prescribe how, and upon what grade, railway tracks shall cross each other; and it may apportion the expense of making the necessary crossings between the corporations owning the roads.1 And it may establish regulations requiring existing railways to ring the bell or blow the whistle of their engines immediately before passing highways at grade, or other places where their approach might be dangerous to travel. And it has even been intimated that it might be competent for the State to make railway corporations liable as insurers for the safety of all persons carried by them, in the same manner that they are by law liable as carriers of goods; though this would seem to be pushing the police power to

*

an extreme. But those statutes which have recently [* 581] become common, and which give an action to the repre

1 Fitchburg R.R. Co. v. Grand Junction R.R. Co., 1 Allen, 552, and 4 Allen, 198.

2 "The legislature has the power, by general laws, from time to time, as the public exigencies may require, to regulate corporations in their franchises, so as to provide for the public safety. The provision in question is a mere police. regulation, enacted for the protection and safety of the public, and in no manner interferes with or impairs the powers conferred on the defendants in their act of incorporation." Galena and Chicago U. R.R. Co. v. Loomis, 13 Ill. 548. And see Stuyvesant v. Mayor, &c., of New York, 7 Cow. 604; Benson v. Mayor, &c., of New York, 10 Barb. 240; Bulkley v. N. Y. and N. H. R.R. Co., 27 Conn. 486; Veazie v. Mayo, 45 Me. 560; s. c. 49 Me. 156; Galena and Chicago U. R.R. Co. v. Dill, 22 Ill. 264; Same v. Appleby, 28 Ill. 283; Ohio and Mississippi R.R. Co. v. McClelland, 25 Ill. 145; Clark's Adm'r v. Haunibal and St. Jo. R.R. Co., 36 Mo. 202; Chicago, &c., R.R. Co. v. Triplett, 38 Ill. 482; Commonwealth v. Eastern R.R. Co., 103 Mass. 254; s. c. 4 Am. Rep. 555.

3 Thorpe v. Rutland and Burlington R.R. Co., 27 Vt. 152. Carriers of goods are liable as insurers, notwithstanding they may have been guiltless of negligence, because such is their contract with the shipper when they receive his goods for transportation; but carriers of persons assume no such obligations at the common law; and where a company of individuals receive from the State a charter which makes them carriers of persons, and chargeable as such for their own default or negligence only, it may well be doubted if it be competent for the legislature afterwards to impose upon their contracts new burdens, and make them respond in damages where they have been guilty of no default. In other words, whether that could be a proper police regulation which did not assume to regulate the business of the carrier with a view to the just protection of the rights and interests of others, but which imposed a new obligation, for the benefit of others, upon a party guilty of no neglect of duty. But perhaps such a regulation would not go further than that in Stanley v. Stanley, 26 Me. 191, where it was held competent

sentatives of persons killed by the wrongful act, neglect, or default of another, may unquestionably be made applicable to corporations previously chartered, and may be sustained as only giving a remedy for a wrong for which the common law had failed to make provision. And it cannot be doubted that there is ample power in the legislative department of the State to adopt all necessary legislation for the purpose of enforcing the obligations of railway companies as carriers of persons and goods to accommodate the public impartially, and to make every reasonable provision for carrying with safety and expedition.2

Those statutes which regulate or altogether prohibit the sale of intoxicating drinks as a beverage have also been, by some persons, supposed to conflict with the Federal Constitution. Such of these, however, as assume to regulate only, and to prohibit sales by other persons than those who should be licensed by the public authorities, have not suggested any serious question of constitutional power. They are but the ordinary police regulations, such as the State may make in respect to all classes of trade or employment.3 But those which undertake altogether to prohibit the manufacture and sale of intoxicating drinks as a beverage have been assailed

for the legislature to pass an act making the stockholders of existing banks liable for all corporate debts thereafter created; or in Peters v. Iron Mountain R.R. Co., 23 Mo. 107, and Grannahan v. Hannibal, &c., R.R. Co., 30 Mo. 546, where an act was sustained which made companies previously chartered liable for the debts of contractors to the workmen whom they had employed.

1 Southwestern R.R. Co. v. Paulk, 24 Geo. 356; Coosa River Steamboat Co. v. Barclay, 30 Ala. 120. In Boston, Concord, and Montreal R.R. v. State, 32 N. H. 215, a statute making railroad corporations liable to indictment and fine, in case of the loss of life by the negligence or carelessness of the proprietors or their servants, was adjudged constitutional, as applicable to corporations previously in existence.

2 On this subject in general, see Redf. on Railw. c. 32, c. 2; Louisville, &c., R.R. Co. v. Burke, 6 Cold. 45; New Albany and Salem R.R. Co. v. Tilton, 12 Ind. 3; Buckley v. N. Y. & N. H. R.R. Co., 27 Conn. 479; Ohio & Mississippi R.R. Co. v. McClelland, 25 Ill. 144; Bradley v. Buffalo, &c., R.R. Co., 34 N. Y. 429; Boston, C., & M. R.R. Co. v. State, 32 N. H. 215; Pennsylvania R.R. Co. v. Riblet, 66 Penn. St. 164; s. c. 5 Am. Rep. 360. And see other cases cited, ante, p. 578-79, notes.

Bode v. State, 7 Gill, 326; Bancroft v. Dumas, 21 Vt. 456; Thomasson v. State, 15 Ind. 449; License Cases, 5 How. 504; Metropolitan Board of Excise v. Barrie, 34 N. Y. 657; Goddard v. Jacksonville, 15 Ill. 59; Kettering v. Jacksonville, 50 Ill. 39; State v. Allmond, 2 Houst. 612.

as violating express provisions of the national Constitution, and also as *subversive of fundamental rights, and [* 582] therefore not within the grant of legislative power.

That legislation of this character was void, so far as it affected imported liquors, or such as might be introduced from one State into another, because in conflict with the power of Congress over commerce, was strongly urged in the License Cases before the Supreme Court of the United States; but that view did not obtain the assent of the court. The majority of the court expressed the opinion which, however, was obiter in those cases that the introduction of imported liquors into a State, and their sale in the original packages as imported, could not be forbidden, because to do so would be to forbid what Congress, in its regulation of commerce, and in the levy of imposts, had permitted; but it was conceded by all, that when the original package was broken up for use or for retail by the importer, and also when the commodity had passed from his hands into the hands of a purchaser, it ceased to be an import, or a part of foreign commerce, and thereby became subject to the laws of the State, and might be taxed for State purposes, and the sale regulated by the State like any other property. It was also decided, in these cases, that the power of Congress to regulate commerce between the States did not exclude regulations by the States, except so far as they might come in conflict with those established by Congress; and that, consequently, as Congress had not undertaken to regulate commerce in liquors between the States, a law of New Hampshire could not be held void which punished the sale, in that State, of gin purchased in Boston and sold in New Hampshire, notwithstanding the sale was in the cask in which it was imported, but by one not licensed by the selectmen.3

It would seem, from the views expressed by the several members of the court in these cases, that the State laws known as Pro

1

Taney, Ch. J., 5 How. 574; McLean, J., ib. 589; Catron, J., ib. 608. And see Brown v. Maryland, 12 Wheat. 419; Lincoln v. Smith, 27 Vt. 335. Bradford v. Stevens, 10 Gray, 379; State v. Robinson, 49 Me. 285.

2 Daniel, J., held that the right to regulate was not excluded, even while the packages remained in the hands of the importer unbroken (p. 612). See also the views of Grier, J. (p. 631).

3 See also Bode v. State, 7 Gill, 326; Jones v. People, 14 Ill. 196; State v. Wheeler, 25 Conn. 290; Santo v. State, 2 Iowa, 202; Commonwealth v. Clapp, 5 Gray, 97; Metropolitan Board v. Barrie, 34 N. Y. 657.

hibitory Liquor Laws, the purpose of which is to prevent [* 583] altogether the manufacture and sale of intoxicating drinks as a beverage, so far as legislation can accomplish that object, cannot be held void as in conflict with the power of Congress to regulate commerce, and to levy imposts and duties. And it has been held that they were not void, because tending to prevent the fulfilment of contracts previously made, and thereby violating the obligation of contracts.1

It

The same laws have also been sustained, when the question of conflict with State constitutions, or with general fundamental principles, has been raised. They are looked upon as police regulations established by the legislature for the prevention of intemperance, pauperism, and crime, and for the abatement of nuisances. has also been held competent to declare the liquor kept for sale a nuisance, and to provide legal process for its condemnation and destruction, and to seize and condemn the building occupied as a dram shop on the same ground.3 And it is only where, in framing such legislation, care has not been taken to observe those principles of protection which surround the persons and dwellings of individuals, securing them against unreasonable searches and seizures, and giving them a right to trial before condemnation, that the courts have felt at liberty to declare that it exceeded the proper

People v. Hawley, 3 Mich. 330; Reynolds v. Geary, 26 Conn. 179.

2 Commonwealth v. Kendall, 12 Cush. 414; Commonwealth v. Clapp, 5 Gray, 97; Commonwealth v. Howe, 13 Gray, 26; Santo v. State, 2 Iowa, 202; One House v. State, 4 Greene (Iowa), 172; Zumhoff v. State, ib. 526; State v. Donehey, 8 Iowa, 396; State v. Wheeler, 25 Conn. 290; Reynolds v. Geary, 26 Conn. 179; Oviatt v. Pond. 29 Conn. 479; People v. Hawley, 3 Mich. 330; People v. Gallagher, 4 Mich. 244; Jones v. People, 14 Ill. 196; State v. Prescott, 27 Vt. 194; Lincoln v. Smith, ib. 328; Gill v. Parker, 31 Vt. 610. Compare Beebe v. State, 6 Ind. 501; Meshmeier v. State, 11 Ind. 484; Wynehamer v. People, 13 N. Y. 378. In Reynolds v. Geary, 26 Conn. 179, it was held that the State law forbidding suits for the price of liquors sold was to be applied to contracts made out of the State, and lawful where made.

8 One House v. State, 4 Greene (Iowa), 172. See also Lincoln v. Smith, 27 Vt. 328; Oviatt v. Pond, 29 Conn. 479; State v. Robinson, 33 Maine, 568; License Cases, 5 How. 589. But see Wynehamer v. People, 13 N. Y. 378; Welch v. Stowell, 2 Doug. (Mich.) 332. A statute providing for the appointment of guardians for drunkards is competent under the police power, and its operation would not be an unlawful deprivation of property. Devin v. Scott, 34 Ind. 67.

province of police regulation. 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.

2 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.