owner, that which was once lawful, proper, and unobjectionable has now become a public nuisance, endangering the public health or the public safety. Mill-dams are sometimes destroyed upon this ground; and churchyards which prove, in the advance of urban population, to be detrimental to the public health, or in danger of becoming so, are liable to be closed against further use for cemetery purposes.2 The keeping of gunpowder in unsafe quantities in cities or villages; the sale of poisonous drugs, unless labelled; allowing unmuzzled dogs to be at large when danger of hydrophobia is apprehended; or the keeping for sale unwholesome

3

* provisions, or other deleterious substances, are all sub- [* 596] ject to be forbidden under this power. And, generally, it

may be said that each State has complete authority to provide for the abatement of nuisances, whether they exist by the fault of individuals or not,5 and even though in their origin they may have been permitted or licensed by law.

The preservation of the public morals is peculiarly subject to legislative supervision, which may forbid the keeping, exhibition, or sale of indecent books or pictures, and cause their destruction if seized; or prohibit or regulate the places of amusement that

1 Miller v. Craig, 3 Stockt. 175. And offensive manufactures may be stopped. Coe v. Schultz, 47 Barb. 64. See League v. Journeay, 26 Texas, 172; ante, 584, and cases cited in note.

2 Brick Presbyterian Church v. Mayor, &c., of New York, 5 Cow. 538; Coates v. Mayor, &c., of New York, 7 Cow. 604; Kincaid's Appeal, 66 Penn. St. 411; s. c. 5 Am. Rep. 377. And see ante, 584, note.

3 Foote v. Fire Department, 5 Hill, 99; Williams v. Augusta, 4 Geo. 509. And see License Cases, 5 How. 589, per McLean, J.; Fisher v. McGirr, 1 Gray, 27, per Shaw, Ch. J.

Morey v. Brown, 42 N. H. 373. Dogs, which are animals in which the owner has no absolute property, are subject to such regulations as the legislature may prescribe, and it is not unconstitutional to authorize their destruction, without previous adjudication, when found at large without being licensed and collared according to the statutory regulation. Blair v. Forehand, 100 Mass. 136. And see Carter v. Dow, 16 Wis. 298; Morey v. Brown, supra. As a measure of internal police, the State has the power to encourage the keeping of sheep, and to discourage the keeping of dogs, by imposing a penalty upon the owner of a dog for keeping the same. Mitchell v. Williams, 27 Ind. 62.

'See Miller v. Craig, 3 Stockt. 175; Weeks v. Milwaukee, 10 Wis. 242. But under this power it would not be competent for a city to tax a lot owner for the expense of abating a nuisance on his lot which the city itself had created. Weeks v. Milwaukee, ib. See Barring v. Commonwealth, 2 Duv. 95.

6 See cases of repealing licenses, ante, p. 283 and note.

may be resorted to for the purpose of gaming;1 or forbid altogether the keeping of implements made use of for unlawful games; or prevent the keeping and exhibition of stallions in public places.2 And the power to provide for the compulsory observance of the first day of the week is also to be referred to the same authority.3 So the markets are regulated, and particular articles allowed to be sold in particular places only, or after license; weights and measures are established, and dealers compelled to conform to the fixed standards under penalty, and persons following particular occupations of a nature requiring special public supervision, such as auctioneers, draymen, hackmen, hucksters, victuallers, and the like, are required to take out licenses, and to conform to such rules and regulations as are deemed important for the public convenience and protection. These instances are more than sufficient to illustrate the pervading nature of this power, and we need not weary

1 Tanner. Trustees of Albion, 5 Hill, 121; Commonwealth v. Colton, 8 Gray, 488; State v. Hay, 29 Me. 457; State v. Freeman, 38 N. H. 426. 2 Nolin v. Mayor of Franklin, 4 Yerg. 163. A city may forbid the keeping of swine within its densely settled portions. Commonwealth v. Patch, 97 Mass. 221.

3

Specht v. Commonwealth, 8 Penn. St. 312; City Council v. Benjamin, 2 Strobh. L. 508; State v. Ambs, 20 Mo. 214; St. Louis v. Cafferata, 24 Mo. 94; Adams v. Hamel, 2 Doug. (Mich.) 73; Vogelsong v. State, 9 Ind. 112; Shover v. State, 5 Eng. 259; Bloom v. Richards, 2 Ohio, N. s. 387; Lindenmuller v. People, 33 Barb. 548; Ex parte Andrews, 18 Cal. 678; Ex parte Bird, 19 Cal. 130; Hudson v. Geary, 4 R. I. 485; Frolickstein v. Mobile, 40 Ala. 725.

Nightingale's Case, 11 Pick. 168; Buffalo v. Webster, 10 Wend. 99; Bush v. Seabury, 8 Johns. 418; Ash v. People, 11 Mich. 347; State v. Leiber, 11 Iowa, 407; Le Claire v. Davenport, 13 Iowa, 210; White v. Kent, 11 Ohio, N. s. 550. The power is continuing, and markets once established may be changed at the option of the authorities, and they cannot even by contract deprive themselves of this power. Gale v. Kalamazoo, 23 Mich. 344; Gall v. Cincinnati, 18 Ohio, N. s. 563; Cougot v. New Orleans, 16 La. An. 21.

Guillotte v. New Orleans, 12 La. An. 432; Page v. Fazackerly, 36 Barb. 392; Raleigh v. Sorrell, 1 Jones, L. 49; Dillon, Mun. Corp. §§ 323, 324, and cases cited.

• Commonwealth v. Stodder, 2 Cush. 562; Dillon, Mun. Corp. §§ 291–296. As to license fees, and when they are taxes, see ante, 201, 495; Mayor, &c., of Mobile v. Yuille, 3 Ala. 139. The sale of pure milk and pure water mixed may be made a penal offence. Commonwealth v. Waite, 11 Allen, 264. As to market regulations in general, see Wartman v. Philadelphia, 33 Penn. St. 202; Spaulding v. Lowell, 23 Pick. 71; Gall v. Cincinnati, 18 Ohio, N. s. 563; Municipality v. Cutting, 4 La. An. 335; Dillon, Mun. Corp. §§ 313-318.

the reader with further enumeration. Many of them have been previously referred to under the head of municipal by-laws.

Whether the prohibited act or omission shall be made a criminal offence, punishable under the general laws, or subject to punishment under municipal by-laws, or, on the other hand, the party be deprived of all remedy for any right which, but for the

* regulation, he might have had against other persons, are [* 597] questions which the legislature must decide. It is sufficient for us to have pointed out that, in addition to the power to punish misdemeanors and felonies, the State has also the authority to make extensive and varied regulations as to the time, mode, and circumstances in and under which parties shall assert, enjoy, or exercise their rights, without coming in conflict with any of those constitutional principles which are established for the protection of private rights or private property.

[701]

[* 598]

CHAPTER XVII.

THE EXPRESSION OF THE POPULAR WILL.

ALTHOUGH by their constitutions the people have delegated the exercise of sovereign powers to the several departments, they have not thereby divested themselves of the sovereignty. They retain in their own hands a power to control the governments they create so far as they have thought it needful to do so, and the three departments are responsible to and subject to be ordered, directed, changed, or abolished by them. But this control and direction must be exercised in the legitimate mode previously agreed upon. The voice of the people, in their sovereign capacity, can only be of legal force when expressed at the times and under the conditions which they themselves have prescribed and pointed out by the constitution, or which, consistently with the constitution, have been prescribed and pointed out for them by the legislature; and if by any portion of the people, however large, an attempt should be made to interfere with the regular working of the agencies of government at any other time or in any other mode than as allowed by existing law, either constitutional or statutory, it would be revolutionary in character, and must be resisted and repressed by the officers who, for the time being, represent legitimate government.1

"The maxim which lies at the foundation of our government is that all political power originates with the people. But since the organization of government it cannot be claimed that either the legislative, executive, or judicial powers, either wholly or in part, can be exercised by them. By the institution of government, the people surrender the exercise of all these sovereign functions of government to agents chosen by themselves, who at least theoretically represent the supreme will of their constituents. Thus all power possessed by the people themselves is given and centred in their chosen representatives." Davis, Ch. J., in Gibson v. Mason, 5 Nev. 291.

Under some of the constitutions certain votes can only be carried by a majority of the electors voting favorably. This must be understood to mean, a majority of those voting at the election on any question. Taylor v. Taylor, 10 Minn. 107. Compare Gillespie v. Palmer, 20 Wis. 544; State v. Mayor, &c., 37 Mo. 270; State v. Binder, 38 Mo. 450; Bayard v. Klinge, 16 Minn. 249.

The authority of the people is exercised through elections, by means of which they choose legislative, executive, and judicial officers, to whom are to be intrusted the exercise of powers of government. In some cases also they pass upon other questions specially submitted to them, and adopt or reject a measure according as a majority vote for or against it. It is obviously impossible that any considerable people should in general meeting consider, mature, and adopt their own laws; but when a law has been perfected, and it is deemed desirable to take the expression of public sentiment upon it, or upon any other single question, the ordinary machinery of elections is adequate to the end, and the expression is easily and without confusion obtained by submitting such law or such question for an affirmative or negative vote. In this manner constitutions and amendments thereof are adopted or rejected, and matters of local importance in many cases, like the location of a county seat, the contracting of a local debt, the erection of a public building, the acceptance of a municipal charter, and the like, are passed upon and determined by the people whom they

concern, under constitutional or statutory provisions [* 599] which require or permit it.

The Right to participate in Elections.

In another place we have said that, though the sovereignty is in the people, as a practical fact it resides in those persons who by the constitution of the State are permitted to exercise the elective franchise.1 Each State establishes its own regulations on this. subject; subject only to the fifteenth amendment to the national Constitution, which forbids that the right of citizens to vote shall be denied or abridged on account of race, color, or previous condition of servitude. Participation in the elective franchise is a privilege rather than a right, and it is granted or denied on grounds of general policy; the prevailing view being that it should be as general as possible consistent with the public safety. Aliens are generally excluded, though in some States they are allowed to vote after residence for a specified period, provided they have declared their intention to become citizens in the manner prescribed by law. The fifteenth amendment, it will be seen, does not forbid denying the franchise to citizens except upon certain

1 Ante, p. 29.