State v. Griffin

39 A. 260, 69 N.H. 1

• Court: Supreme Court of New Hampshire
• Decided: December 5, 1896
• Status: Published

Opinion

Carpenter, C. J.

“ If any person shall throw, place, leave, or cause to be thrown, placed, or left, any sawdust in Lake Massabesic, sjtuated in Auburn and Manchester, or in any stream tributary thereto, he shall be punished for the first offence by a fine not exceeding twenty dollars, or by imprisonment not exceeding thirty days, or both ; and for any subsequent offence by a fine not exceeding one hundred dollars, or by imprisonment not exceeding six months, or both.” Laws' 1891, c. 26, s. 1. The complaint is founded upon this statute. The circumstance that the defendant holds the mill under a lease from the city of Manchester and the stipulations of the lease are immaterial. The city cannot exempt the defendant from the operation of the statute. The only defence is that the act is unconstitutional. The defendant claims that it is in conflict with the constitution for three distinct reasons, namely, because (1) it deprives him of his property without compensation; (2) it is an exercise not of legislative but of judicial power; and (3) it is not an equal and uniform law applicable equally to all persons similarly situated, but operates only against those engaged in a particular business in a particular part of the state.

“ It is a settled principle, growing out of the nature of well ordered civil society, that every holder of property, however absolute and unqualified may be his title, holds it under the implied liability that his use of it may be so regulated that it shall not be injurious to the equal enjoyment of others having an equal right to the enjoyment of their property, nor injurious to the rights of the community. All property in this commonwealth ... is derived directly or indirectly from the government, and held subject to those general regulations which are necessary to the common good and general welfare. Rights of -property, like all other social and conventional rights, are subject to such reasonable limitations in their enjoyment as shall prevent them from being injurious, and to such reasonable restraints and regulations established by law as the legislature, under the governing and controlling povrer vested in them by the constitution, may think necessary and expedient.

“ This is very different from the right of eminent domain, the right of a government to take and appropriate private property to public use whenever the public exigency requires it, which can be done only on condition of providing a reasonable compensation therefor. The power we allude to is rather the police power, the power vested in the legislature by the constitution to make, ordain, and establish all manner of wholesome and reasonable laws, statutes, and ordinances, either with penalties or without, not repugnant to the constitution, as they shall judge to be for the good and welfare of the commonwealth and of the subjects of the same.

“It is much easier to perceive and realize the existence and sources of this power than to mark its boundaries or prescribe limits to its exercise. There are many cases in which such a power is exercised by all well ordered governments, and where its fitness is so obvious that all well regulated minds will regard it as reasonable. Such are the laws to prohibit the use of warehouses for the storage of gunpowder near habitations or highways ; to restrain the height to which wooden buildings may be erected in populous neighborhoods, and require them to be covered with slate or other incombustible material; to prohibit buildings from being used for hospitals for contagious diseases, or for the carrying on of noxious or offensive trades; to pro Libit the raising of a dam and causing stagnant water to spread over meadows near inhabited villages, thereby raising noxious exhalations injurious to health and dangerous to life.

“ Nor does the prohibition of such noxious use of property, a prohibition imposed because such use would be injurious to the public, although it may diminish the profits of the owner, make it an appropriation to a public use, so as to entitle the owner to compensation. If the owner of a vacant lot in the midst of a city could erect thereon a great wooden building and cover it with shingles, he might obtain a larger profit of his land than if obliged to build of stone or brick with a slated roof. If the owner of a warehouse in a cluster of other buildings could store quantities of gunpowder in it for himself and others, he might be saved the great expense of transportation. If a landlord could let his building for a small-pox hospital, or a slaughter house, he might obtain an increased rent. But he is restrained ; not because the public have occasion to make the like use, or to make any use of the property, or to take any benefit or profit to themselves from it, but because it would be a noxious use, contrary to the maxim, sic utere tuo ut alienum non laidas. It is not an appropriation of the property to a public use, but the restraint of an injurious private use by the owner, and is therefore not within the principle of property taken under the right of eminent domain.” Commonwealth v. Alger, 7 Cush. 53, 84-86. The universal doctrine on the subject is nowhere more clearly stated than in the foregoing language of Chief Justice Shaw. It has been often applied and never questioned in this state.

In State v. Clark, 28 N. H. 176 (decided in 1854, when the keeping for sale of intoxicating liquor was not unlawful), it was held that a city ordinance, adopted under legislative authority, prohibiting the keeping of liquors in “ any refreshment room o.r restaurant for any purpose whatever” was constitutional. In State v. Noyes, 30 N. H. 279, it was held that the statute declaring a “ bowling-alley situate within twenty-five rods of any dwelling-house, store, shop, schoolhouse, or place of public worship” to be a public nuisance (Laws 1845, c. 245), was constitutional, although it deprived the defendant of the use of a bowling-alley lawfully built if not put in operation before the statute took effect. It was not suggested by the defendant’s counsel that the act was invalid for the reason that the defendant was deprived of that use of his property without compensation. In State v. Freeman, 38 N. H. 426, a city ordinance prohibiting restaurants to be kept open after ten o’clock at night was held valid. Bell, J., says {p. 428): “It is an unavoidable consequence of city ordinances that they in some degree interfere with the unlimited exercise of private rights which were previously enjoyed. It is one thing to deprive a party of his rights, and quite another to regulate and restrain their exercise in such a manner as the common convenience and safety may require. If it is permissible to interfere in any way with the private right to carry on and manage his lawful business at such time and place and in such manner as suits himself, we are unable to see anything unreasonable in requiring places of public entertainment to be closed at seasonable hours. The guaranty of the constitution is just as effective to secure the citizen against the interference of the legislature as of the city council; and it has never been questioned that the legislature may constitutionally pass laws materially interfering with the business of individuals.” In Morey v. Brown, 42 N. H. 373, an act providing that no one should be liable for killing a dog found without a collar, etc., was held constitutional. Bartlett, J., says (p. 375): “ The plaintiff claims that the act is in conflict with our constitution ; but we do not think so. It is not, as he argues, an act to take private property for public uses, or to deprive parties of their property in dogs; but merely to regulate the use and keeping of such property in a manner that seemed to the legislature reasonable and expedient. It is a mere police regulation, such as we think the legislature might constitutionally establish.” A statute prohibiting the sale of goods by any person outside his usual place of business, within two miles of a public assembly convened for religious worship (G. S., c. 255, s. 9), is constitutional. State v. Cate, 58 N. H. 240.

“ Vice, pauperism, and crime may be suppressed and prevented by a variety of measures. In behalf of property, health, life, and morals, the social contract may be performed by destroying buildings, burglars’ tools, gambling and counterfeiting implements, and intoxicating liquors. The spread of fire, and physical, mental, and moral disease, may be stopped by vigorous action. Destruction may be protection. For the common security, by the judgment of his peers and the law of the land, an offender may be deprived of his estate, liberty, and life. Wrong may be obstructed and repressed by methods less severe than capital punishment. The protective power may seek, by mild courses, to lessen an evil or check its increase. Instead of destroying the life, liberty, or property of wrongdoers, it may discourage their noxious business and restrain it within certain bounds.” State v. Express Co., 60 N. H. 219, 257. “ The police power of the state extends to the protection of the lives, health, comfort, and quiet of all persons, and the protection of all property within the state; and persons and property are subjected to such restraints and burdens as are reasonably necessary to secure the general comfort, health, and prosperity. . . . The state has authority to make regulations as to the time, mode, and circum stances 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 and private property.” State v. White, 64 N. H. 48, 50. In State v. Campbell, 64 N. H. 402, a statute prohibiting the sale of milk containing less than a specified per cent of milk solids, though perfectly pure and wholesome, was held valid. The court say (p. .403): “Under what is generally called the police power of the state, . . . the sale of bread, the inspection of flour, beef, pork, and other provisions, the practice of medicine, surgery, and dentistry, the licensing of druggists, and the sales of drugs and medicines, are regulated, and the sale of spirituous or intoxicating liquor prohibited, by statute. . . . Such legislation is not open to the objection that it transcends the limits of legislative authority, the purpose and object of such legislation being the protection of the lives, health, comfort, and safety of all persons; and for securing this purpose persons and property are subjected to many restraints and burdens. They are presumed to be rewarded by the common benefits secured.” Bancroft v. Cambridge, 126 Mass. 438, 441. In Mugler v. Kansas, 123 U. S. 623, 664, 670, it was held that the owners of breweries that were made worthless by a statute forbidding the manufacture of malt liquors were entitled to no compensation for the practical destruction of their property.

Any conceivable statute enacted under the police power, and regulating the use of property, must necessarily affect injuriously individual rights; but in no instance, so far as known, has it been declared by a court of last resort that persons whose interests are so affected are entitled to compensation. Under the law of eminent domain, no one is entitled to compensation for injuries, however serious they may be, caused by public improvements, if no part of his lands or property is taken therefor. Ken nett's Petition, 24 N. H. 139, 143; Petition of Mt. Washington Road Co., 35 N. H. 134, 146, 147.

The objection that the act is judicial in its character — that in enacting it the legislature exercised judicial power — has no better foundation. Merrill v. Sherburne, 1 N. H. 199, 203, 204. The'precise question was considered and decided in State v. Noyes, 30 N. H. 279, where it was held that the statute declaring bowling-alleys situated within twenty-five rods of a dwelling to be public nuisances, was not for this reason unconstitutional. Pell, J., says (pp. 294, 295): “It is objected to this law that, if otherwise constitutional, it is forbidden by the constitution because it undertakes to determine questions of fact and law, and is judicial in its character. What is or is not. a nuisance is a judicial question, it is said, to be determined by courts, and this is clearly so. Nothing is a nuisance unless it is made such by the law, and to determine what is by the law a nuisance, is an exercise of judicial power. But the legislature do not exceed their legitimate authority when they make a change of the law, and constitute that an offence which was not such before, nor when they make certain acts an offence of a particular kind within which they were not previously included. There may be an apparent unfitness sometimes in such legislation, but its validity has never been questioned. ... It may be said that a bowling-alley is not of itself a nuisance, since it may either remain unused, or it may be used only as a place of innocent amusement; that its injurious character depends upon the improper use alone. But the legislature may well determine that an instrument which tends to facilitate vicious practices is of itself an evil which ought to be prohibited. There seems to us, then, to be no sound foundation for this exception.” Farnum’s Petition, 51 N. H. 376, 380, 381.

The instances are numerous in which acts and things not nuisances at common law, and in themselves harmless and inoffensive or even beneficial, and only liable to become offensive to the public health or comfort by improper use, have been by statute declared nuisances. Such legislation, whenever brought in question, has been sustained by the courts. P. S., c. 108, ss. 8, 10, 12, 15. State v. Wilson, 48 N. H. 415, 420. The following arc a few out of many early examples of such legislation : The act of April G, 1781, against permitting swine to go at large in Portsmouth (Laws, ed. 1789, p. 174); of February 28, 1786, forbidding gunpowder in excess of ten pounds to be kept in private houses in Portsmouth (lb.,p. 184); of January 3, 1792, forbidding the erection or occupation of slaughter houses, or houses for currying leather or trying tallow, in the compact part of any town (Laws, ed. 1797, £>. 194); of January 14, 1795, against permitting horses, etc., to go at large without fetters (lb.,p. 840) ; of February 18, 1794, forbidding gunpowder in excess of ten pounds to be kept in private houses or in vessels at the wharves in Portsmouth (lb., pp. 359, 360); of Juno 16, 1791, against permitting swine to go at large in any town without being yoked and ringed, or at all in Portsmouth (lb., p. 370); of June 16, 1792, prohibiting the casting of gravel, stones, ashes, etc., into Portsmouth harbor (lb., p. 891); of June 22, 1786, prohibiting the setting of gill nets in Ammonoosuc river (lb.,p. 402); of January 9, 1795, prohibiting seines, nets, and pots in Connecticut river (lb., p. 404). The act of October 19, 1887 (Laws 1887, c. 77; P. S., c. 205, s. 4), declaring any building used for the illegal sale of spirituous or malt liquors, wine, or cider to be a common nuisance, has been sustained by many decisions. Whether a statute restricting individual rights, that is enacted for the purpose of protecting the public health, may be declared unconstitutional and void because in the opinion of the court it has no such effect, is a question not raised. It is found that the tendency of sawdust in the water is to render it unwholesome. It is needless to pursue the subject. It is enough to say that this objection cannot be sustained without overruling State v. Noyes, supra.

The principal ground relied upon is that the act is local in its operation. It is not, it is said, equal and uniform, and does not apply to all persons similarly situated. It operates, it is urged, against a class only and those engaged in a particular occupation in a part only of the state. It is said that “ If the water supply of Manchester needs a sawdust law, the water supplies of other towns in the same situation need the same law. If an infusion of sawdust is unwholesome for the people of Manchester, it 'is unwholesome for other people. ... If Massabesic can be selected by a state law for protection unknown elsewhere, the well of a Massabesic farmer can be protected by a penal enactment applicable to no other well. . . . All wells, springs, and brooks from which the owners and their families take.their supply of water for domestic purposes are equally entitled to protection. A statute making it a felony or misdemeanor to put sawdust or other substance in the well of A. B. in Haverhill, and leaving all other wells in the state protected by the common law alone, would be valid if the act of 1891 is valid in giving Manchester a protection against sawdust that is not given to anybody else in the same situation. Under a state law equality is a right, or the construction repeatedly put upon the constitution from 1827 to the present time is a false pretence.”

In other words, it is claimed that a general law applicable to a particular place, or not applicable throughout the entire state, is unconstitutional. The legislature cannot make an act a penal offence in one locality, as a city, town, or other place, where for the public welfare the legislation is necessary, without also making it penal in all other parts of the state, though in none of them is the protection necessary or desirable. It cannot forbid the killing of the few deer 'found in the small and scattered forests of Cheshire county, without also forbidding it in the vast wilderness of Cobs, though there they become so numerous as to be a pest. It cannot protect the wells of Haverhill, where the state of society makes protection necessary, without extending it to all other wells, although they need no protection. It cannot confer an authority upon one town which it does not give to all. Legislation required for the public good in Strafford county must be made applicable to Grafton, though there it is injurious. The acts for the protection of the Dustin monument (Laws 1874, c. 45) and of Corbin park (Laws 1895, c. 258) are unconstitutional and void. If, however, the words, “ or any other like monument in the state,” “or any other like park in the state,” were added, though no other such monument or park exists, the statutes would be valid ; that is to say, the constitutionality of a statute may depend upon the presence or absence of words that in practical effect aré immaterial.

If this is sound constitutional law, more than a thousand invalid statutes have been enacted since the adoption of the constitution. In numerous instances rights under them have been enforced, and punishment for their violation has been inflicted by judicial action. Not one in a hundred of such cases appears in the reports, and in two only of the reported cases (Scott v. Willson, 3 N. H. 321, and Charter of Manchester, 47 N. H. 277) was this objection taken, in both of which it was overruled. In all this class of cases for more than a hundred years our courts have administered to the people gross injustice instead of constitutional justice.

No clause in the constitution condemning such legislation is pointed out. No judgment of the court declaring it invalid is cited. No such decision can be found. The sole argument of the defendant in support of his position is that the act is inconsistent with “ the equality of right which the constitution secures to all,— that it discriminates in favor of some citizens to the detriment of others.”

The argument is without foundation in fact. The statute makes no discrimination. It does not permit some persons and forbid others to put sawdust in the lake. Everybody is prohibited. “ Any person,” says the statute, who puts sawTdust in the lake shall be punished. True it is that the prohibition affects the owners of sawmills on the lake shore more seriously than the farmers, and it affects the farmers there dwelling more seriously than the farmers of Coos. Such is necessarily ~the effect of all restrictive laws. They affect some persons more than others. A similar objection might be made against the larceny law. It has no effect upon the great body of the people, but upon a small class only, namely, the thieves. In the sense of the defendant’s argument, it is as unequal as the sawdust law.

The act confers upon Manchester or its citizens no individual or exclusive right or benefit, within the meaning of the constitution. Every inhabitant of the state is entitled to enjoy the benefits conferred by the statute on complying with the necessary conditions, as he may, if he choose, enjoy the benefit of the aqueduct itself or of any other property taken for the public use. If this act violates the law of equality prescribed by the constitution because only the fifty thousand inhabitants of Manchester are directly benefited by it,— because to reap its benefit a person must go to Manchester,— all acts authorizing the condemnation of private property for aqueducts, cemeteries, or other public uses, which from their nature can be enjoyed only in the towns and cities where they are located, are equally invalid. It is impossible to hold that the legislation in the latter case is for the public good, and that it is not in the former.

The equality of the constitution is the equality of persons and not of places — the equality of right and not of enjoyment. A law that confers equal rights on all citizens of the state, or subjects them to equal burdens, and inflicts equal penalties on every person who violates it, is an equal law, though no one can enjoy the right, be subjected to the burden, or infringe its provisions, without going to or being in a particular part of the state. It does not discriminate in favor of some at the expense of others.

There are places regarding which any protective legislation must necessarily be special, as, for example, Corbin park and the state house yard. Laws 1883, c. 12; P. S,, c. 7, s. 5. If general in form, it would be special in substance. There are few if any towns, cities, or other subdivisions of the state, whose situation and circumstances are so nearly alike that legislation may not be required for one that is not necessary or desirable for any other. Many may be so differently situated that legislation essential for one would be injurious to the others.

No two cities in the state are governed by exactly the same ordinances. Acts made penal offences in some cities are innocent in others. No two charters are alike. Some cities have over them a police commission, while others select and control their police officers. Their authority and their ordinances differ in many particulars. So it is, in perhaps a less degree, with towns. Many have been given authority which others do not possess. Their by-laws (P. S., c. 40, ss. 7, 8) are not uniform. Acts forbidden in some towns are permitted in others.

It is said that this lack of uniformity results “ from the exercise of limited powers of local government granted to towns and cities,” and therefore has no bearing on the present question. In the first place, it is not, as a matter of fact, altogether a result of local ordinances and by-laws; much of it is created by the direct action of the legislature, as, for example, in the creation of police commissioners and in conferring special powers upon particular towns.. In the next place, acts under a delegated power are the acts of the principal. The principal cannot confer upon his agent a power which he does not himself possess. Whatever bylaws and ordinances the legislature can lawfully authorize towns and cities to adopt, it has the constitutional power to enact directly. Wooster v. Plymouth, 62 N. H. 193, 208-210; State v. Noyes, 30 N. H. 279, 293. The legislature may at any time resume the delegated powers. School District v. Smart, 18 N. H. 268, 273; Lisbon v. Clark, 18 N. H. 234; Stevens v. Dimond, 6 N. H. 330, 331; State v. Hayes, 61 N. H. 264, 335; Berlin v. Gorham, 34 N. H. 266, 275. If the legislature is by the constitution forbidden to enact such laws, it cannot authorize towns and cities to enact them. It cannot confer a power it does not itself possess.

It is not for the court to inquire into the wisdom or unwisdom of such legislation. Whether the act “ be wise, reasonable, or expedient, is a legislative and not a judicial question. The legislature is as capable of determining the question of the wisdom, reasonableness, and expediency of the statute, and of the necessity for its enactment, as the courts. The only inquiry is whether the statute conflicts with the constitution.” State v. Marshall, 64 N. H. 549, 550. Farnum’s Petition, 51 N. H. 376, 378. The question is one of constitutional power.

It is not easy to see how a requirement that all general statutes shall be made applicable equally to all similarly situated portions of the state could be given practical effect unless the legislature wore made the final and exclusive judge of what places, towns, or cities are so situated. Cool. Con. Lim. (4th ed.) 156, note. It is a question of fact. Is it to be determined by a jury, and the validity or invalidity of the statute made to depend upon their verdict? State v. Campbell, 64 N. H. 402, 404.

The question is concluded by our decisions. In Scott v. Willson, 3 N. H. 321, decided in 1825, it was held that an act regulating the mode of putting pine timber into Connecticut river was not repugnant to the constitution, for the reason that it “ does not embrace all rivers, but is confined to Connecticut river.” Richardson, C. J., says (p. 328) : “It has been decided in Massachusetts that an act attempting to suspend the operation of a general law in relation to a particular person was unconstitutional. Holden v. James, 11 Mass. 396. But that decision has no bearing •upon the question to be decided in this ease. Here the objection is not that the law does not extend to all persons, but that it does not extend to all places. The objection in truth is that the statute is a general law in relation to a particular place. But we have been referred to no clause in our constitution which restrains the legislature from passing such a law; nor have our researches enabled us to find any such clause.” Chief Justice Richardson and his associates thought the proposition so obviously sound as to require no elaboration. It is needless to say that nothing is to be found in the Opinion of the Justices, 4 N. H. 565, inconsistent with this doctrine.

In Charter of Manchester, 47 N. H. 277, decided in 1867, it was held that an act requiring the cheek-list in the city of Manchester to be regulated in a different manner from that prescribed by the general law in all other places, towns, or cities was not for that reason unconstitutional. Sargent, J., says (p. 279): “But it may be said that the rule should be uniform and administered alike in all places. There might be more weight in this objection if all the other attendant circumstances were the same. "We by no means intimate an opinion that the legislature might not constitutionally impose these duties relative to the check-list upon one set of officers in some towns and counties and upon a different board in other towns and counties. The legislature may constitutionally pass a general law in relation to a particular place. Scott v. Willson, 3 N. H. 321, 328; State v. Noyes, 30 N. H. 279. So general statutes have been passed in regard to schools in Portsmouth -and in Somersworth, differing widely from the general law relating to schools in other parts of the state. C. S., cc. 80, 81. But when we consider the difference between the wards of a city and towns not connected with any city, we see at once that there is such a difference in circumstances as may well justify a difference in the board selected to perform these duties, if such a justification were necessary.” The question was directly involved in State v. Franklin Falls Co., 49 N. H. 240 (1870). It was there held that the statute (G. S., c. 251, s. 20) prohibiting the maintenance of dams on the Winnipiseogee river (and five others) was constitutional. The objection that the statute was local in its application was not alluded to either by counsel or the court, and for the reason, undoubtedly, that they understood that it was not tenable,— that the question was not an open one. The same is true of State v. Roberts, 59 N. H. 256, 484 (1879), where the defendant was indicted, convicted, and presumably punished for taking trout from his own pond, under a statute prohibiting the taking of trout in certain months from any waters of the state except certain lakes and .a certain pond. So, also, of Purinton v. Ladd, 58 N. H. 596, which was debt for the penalty under the same statute. Laws 1872, c. 55.

The latest judicial declaration bearing upon the question is found in the Opinion of the Justices, 66 N. H. 629, 665, where it is said that “ a special act is not to be declared void because it is opposed to a spirit supposed to pervade the constitution, but not made an operative part of it by express words or necessary implication, that is, by fair construction.”

Until 1864, deposits in savings banks were taxed to the depositors like other property. R. S., e. 39, s. 3; O. S., c. 41, s. 4; Laws 1864, c. 4028. By the act of 1864, the banks were required to pay a tax of three fourths of one per cent on the deposits, to be in full of all taxes on the depositors on account of the deposits. In 1869, the tax was increased to one per cent (Laws 1869, c. 4, s. 3), and so it remained until 1895, when it was reduced to three fourths of one per cent. Laws 1895, c. 108. This was a heavy discrimination in favor of the depositors. Bank v. Concord, 59 N. H. 75, 78. They were required to pay in many towns less than one half the tax assessed on other property. Yet notwithstanding the express provisions of the constitution, by which the general court may 44 impose and levy proportional and reasonable assessments, rates, and taxes upon all the inhabitants of and residents within the said state, and upon all estates within the same ” (art. 5), require/4 in order that such assessments may be made with equality,” that a valuation of the estates be taken anew once in every five years (art. 6), and declare that44 every member of the community ... is bound to contribute his share ” of the public expense (Bill of Bights, art. 12), and notwithstanding the numerous judicial decisions thereon (State v. Pennoyer, 65 N. H. 113, 114), this court, in 1383, less than twenty years after the enactment creating the discrimination, declared that44 the savings bank tax is an anomaly, resting on peculiar grounds of public policy, and is universally understood to have acquired the position of an exception to the constitutional rule of equality.” Railroad v. State, 62 N. H. 648, 649. Ilow did it become an exception ? Solely by virtue of the statute creating it, and less than twenty years of public-acquiescence.

In Morrison v. Manchester, 58 N. H. 538, 551, 552 (decided in 1879), the court said : 44 In this state the taxability of money at interest is not an open judicial question. Whether the assessment of money at interest is a process of ascertaining the lender’s or the borrower’s just share of the public expense, or an exceptional, double, or otherwise wrongful taxation of the borrower . . . permitted, not required, by an erroneous constitutional construction established by legislative usage and judicial recognition, we need not inquire. If the assessment of a creditor for his interest-bearing loan of money is, in effect, either a double taxation of his debtor, or a taxation of the debtor for property which, by conveyance or destruction, has ceased to be his, . . . such taxation is sustained by the authority of precedent. . . . The precedent is too firmly established to bo overthrown by.any other authority than that of making laws.” In other words, a legislative usage for something less than one hundred years, accompanied by judicial recognition, is sufficient to establish a rule of taxation forbidden by the constitution. 44 Local self-government ... in uninterrupted operation more than two hundred and forty years has been constitutionally established by recognition and usage.” Doe, C. J., State v. Hayes, 61 N. H. 264, 322. 44 When a question arises as to the contemporaneous meaning of the terms used in an ancient instrument, early and long continued usage has a controlling weight.” The Dublin Case, 38 N. H. 459, 512: Pierce v. State, 13 N. H. 536, 573; Company v. Fernald, 47 N. H. 444, 459; Copp v. Henniker, 55 N. H. 179, 209; King v. Hopkins, 57 N. H. 334, 356; Keniston v. State, 63 N. H. 37, 38.

Immediately upon the adoption of the constitution in 1784, the legislature (many members of which, and of succeeding legislatures, were members of the convention and participated in framing the constitution) began to enact general laws applicable to particular places. They have continued to do so from that time to this,— more than a hundred years. There have been few, if any, legislative sessions during which one or more statutes of this character have not been enacted. Their number is very great. They have been sanctioned by judicial decisions. Not a dictum or intimation against their validity is to be found in our reports; nor, it is believed, in those of any other state, in the absence of express constitutional prohibition. They have been acquiesced in by the public. Under them, rights have accrued and have been enforced. Many persons have been punished for violating them. It is not claimed that such legislation is expressly forbidden. Conceding (for sake of the argument) that it is unwise and opposed to the general spirit of the constitution, this long continued usage, recognition, and acquiescence must (even if there were no judicial decision on the subject), under our established doctrine of constitutional construction, be held decisive upon the question of legislative power.

“ Laws public in their objects may, unless express constitutional provision forbids, be either general or local in their application ; they may embrace many subjects or one, and they may extend to all citizens or be confined to particular classes, as minors, married women, bankers, or traders, and the like. The authority that legislates for the state at large must determine whether particular rules shall extend to the whole state and all its citizens, or, on the other hand, to a subdivision of the state or a single class of its citizens only. The circumstances of a particular locality, or the prevailing public sentiment in that section of the state, may require or make acceptable different police regulations from those demanded in another, or call for different taxation and a different application of the public moneys. The legislature may therefore prescribe or authorize different laws of police, allow the right of eminent domain to be exercised in different cases and through different agencies, and prescribe peculiar restrictions upon taxation in each distinct municipality, provided the state constitution does not forbid. These discriminations are made constantly; and the fact that the laws are of local or special operation only, is not supposed to render them obnoxious in principle. The business of common carriers, for instance, or of bankers, may require special statutory regulations for the general benefit, and it may be matter of public policy to give laborers in one business a specific lien for their wages, when it would be impracticable or impolitic to do the same by persons engaged in some other employments. If the laws be otherwise unobjectionable, all that can be required in these cases is that they be general in their application to the class or locality to which they apply; and they are then public in character, and of their propriety and policy the legislature must judge.” Cool. Con. Lim. (6th ed.) 479-481.

Appeal dismissed.

All concurred.