State v. . Perley

92 S.E. 504, 173 N.C. 783

• Court: Supreme Court of North Carolina
• Decided: May 23, 1917
• Status: Published

Opinion

WalkeR, J.,

after stating tbe ease: Tbe possession and enjoyment of all rights are subject to sucb reasonable conditions and regulations as may be deemed by tbe Legislature essential to tbe public welfare, and especially are tbey beld in subordination to tbe exercise of tbe police power, wbicb extends and relates to tbe preservation of tbe peace, good order, safety, bealtb, morals, convenience and comfort of tbe people. It is. not confined to tbe suppression of wbat is offensive, disorderly, or unsanitary, but embraces those rules and regulations designed to pro-' mote tbe public good and general prosperity of tbe community, provided that tbe legislation of whatever kind has a real or substantial relation to those objects, and is not a palpable invasion of individual rights secured by tbe fundamental law. In its broadest sense, as sometimes defined, it includes nearly all legislation and almost every function of civil government. New York v. Miln, 11 Peters (U. S.), 102; Barbier v. Connelly, 113 U. S., 27; L. and N. R. R. v. Kentucky, 161 U. S., 677; Lockner v. New York, 198 U. S., 45; Lawton v. Steele, 152 U. S., 133; Hennington v. Georgia, 163 U. S., 299; Bacon v. Walker, 204 U. S., 311.

It is beld that this power is not subject to any definite limitations, but is coextensive with tbe necessities of tbe case and tbe safeguards of public interest. Canfield v. U. S., 167 U. S., 518. Tbe fourteenth amendment to tbe Federal Constitution does not restrict tbe subjects upon which tbe police power may be lawfully exerted. Jones v. Brim, 165 U. S., 180. In Lockner v. New York, supra, Justice Beckham said of it: “There are, however, certain powers, existing in tbe sovereignty of each ’State in tbe Union, somewhat vaguely termed police powers, tbe exact description .and limitation of wbicb have not been attempted by tbe courts. Those powers, broadly stated, and without, at present, any attempt at a more specific limitation, relate to tbe safety, bealtb, morals, and general welfare of tbe public. Both property and liberty are beld on sucb reasonable conditions as may be imposed by tbe governing power of tbe State in tbe exercise of those powers, and with such conditions tbe fourteenth amendment was not designed to interfere,” citing Mugler v. Kansas, 123 U. S., 623, and other cases. Tbe regulation of tbe use of land comes within tbe scope of tbe police power. Tiedeman on Limitations of Police Powers, sec. 122, says at page 423: “It is not every use wbicb comes within this constitutional protection. One has a vested right to only a reasonable use of one’s lands. It is not difficult to find tbe rule wbicb determines tbe limitations upon ways or manner of using lands. It is tbe rule wbicb furnishes tbe solution'of every problem in tbe law of police powers, and which is comprehended in tbe legal maxim, Sic viere tuo ut alienum non laidas. One can lawfully make use of bis property only in sucb a manner as that be will not injure another.” 'We held in Durham v. Cotton Mill, 141 N. C., 615, (s. c. 144 N. C., 705); that the statute (Rev., sec. 3051) for the protection of streams from which the. public is supplied with drinking-water, was a valid exercise of this power, and that act required the riparian owner to subject sewage on his own land to a system of purification before discharging it into such a water-course. We there said, at page 636: “The extent to which such interference with the injurious use of property may be carried is a matter exclusively for the judgment of the Legislature when not controlled by fundamental law. Nor is there anything to render such legislation objectionable because in some instances it may restrain the profitable use of private property, when such use in fact does not directly injure the public in comfort or health; for to limit such legislation to cases where actual injury has occurred would be to deprive it of its most effective force. Its design is preventive, and to be effective it must be able to restrain acts which tend to produce public injury. Many instances of such an exercise of this power can be found.' The State regulates the use of property in intoxicating liquors by restraining their sale, not on the ground that each particular sale does injury, for then the sale would be prohibited, but for the reason that their unrestricted sale tends to injure the public morals and comfort. The State is not bound to wait until contagion is communicated from a hospital established in the heart of a city; it may prohibit the establishment of such a hospital there, because it is likely to spread contagion.” The question has undergone discussion in Daniels v. Homer, 139 N. C., 219; S. v. R. R., 169 N. C., 295; Shelby v. Power Co., 155 N. C., 196; Skinner v. Thomas, 171 N. C., 98; and more recently in State Board of Health v. Comrs., ante, where is was held: “Even vested rights having reference to the ordinary incidents of ownership must yield to reasonable interference in'the exercise of police power. In.that field, as stated, the judgment of the Legislature is to a great extent decisive, and must be upheld unless the statute in question has no reasonable relation to the end or purpose in view and is manifestly an arbitrary and palpable invasion of personal and private rights,” citing numerous authorities. It is said in Russell on Police Powers of the State, p. 95 : “Regulations to prevent fires are within the scope of the police power, as has been frequently determined. The removal of buildings for the purpose of preventing the spread of fires is authorized. Relating to this subject are laws prohibiting the keeping of explosive substances or highly inflammable substances within certain limits. The subject of building laws is also a related topic. MunL cipalities are very generally authorized to control the construction of buildings and to prevent the erection or maintenance of unsafe buildings. Such regulations are purely police regulations.” We could multiply examples of the kind indefinitely, in illustration of the extent to which the courts have gone in sustaining legislation of the sort we are now considering, where private property has been controlled and regulated in its use for the protection of the public health and safety, and other things so essential to the common welfare. Every citizen derives his title to the property from the sovereign, which with, us is the State, and he acquires it upon the implied condition that it shall be held subject to all necessary or reasonable regulations in promotion of the public interest. Each citizen reaps an advantage, or substantial benefit, from the fact that all property is thus held, as the principle is a protection to his own as well as to that of others. It enhances its value, too, because his neighbor must so use his premises as not to injure him in the enjoyment of rights pertaining to his ownership of adjacent land. The rights,the duties, and the advantages, therefore, are all reciprocal. The enforcement of this law is a distinct benefit to all as much so, though not always in the same degree, as laws enacted for our personal safety and freedom from the annoyance of others. Private convenience must consequently give way to the public good in the interest of all, and in order that government may be administered, not for one, or even a few, but to benefit all who have equally a claim upon its protection. In Cusack v. City of Chicago, 37 Sup. Ct. Rep., 190, Justice Clarke said for the Court: “The principles governing the exercise of the police power have received such frequent application and have been so elaborated upon in recent decisions of this Court, concluding with Armour & Co. v. North Dakota, 240 U. S., 510, that further discussion of them would not be profitable, especially in a case falling as clearly as this one does within their scope. We, therefore, content ourselves with saying that while this Court has refrained from any attempt to define with precision the limits of the police power, yet its disposition is to favor the validity of laws relating to matters completely within the territory of the State enacting- them, and it so reluctantly disagrees with the local legislative authority, primarily the judge of the public welfare, especially when its action is approved by the highest court of the State whose people are directly concerned, that it will interfere with the action of such authority only when it is plain and palpable'that it has no real or substantial relation to the public health, safety, morals, or to the general welfare,” citing Jacobson v. Massachusetts, 197 U. S., 11. In the case of L. S. & M. So. Railway Co. v. Clough, 37 Sup. Ct. Rep., 144, speaking of the application of this law to a drainage case, Justice Pitnhy said: “It is requiring them merely to bear the cost of constructing crossings for their railroad lines over the proposed new channel and outlet, ‘so as not to interfere with the free use of the same,’ and ‘in a sufficient manner not to unnecessarily impair its usefulness.’ With respect to this duty, if tbe State has a right to impose it in aid of tbe drainage project, tbe remoteness or proximity of tbe area to be drained is wholly immaterial.” Rut tbe question we have here, upon tbe special facts of this case, seems to have been decided by that same high court, in Mo. & C. R. R. Co. v. May, 194 U. S., 267, upon facts not materially dissimilar to those in this record, and tbe law was upheld notwithstanding that it was confined to railroads, and was apparently discriminative with respect to that particular class. Tbe statute of Texas which was considered in that case provided that it should be, unlawful for railroad companies to permit Johnson grass, or Russian thistle, to mature and go to seed upon its right of way. The law was sustained, as the act forbidden would, if committed, be injurious to owners of contiguous land, as the grass was a menace to crops, and is propagated only by seed. The Court was divided in opinion, but all the justices concurred that the law would clearly be valid if not discriminative In its restricted application to railroads, the majority holding that it was not even discriminative. In the opinion of the Court Justice Holmes well said: “Great constitutional provisions must be administered with caution. Some play must be allowed for the joints of the machine, and it must be remembered that legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts.” That case was affirmed at the present term of the Court in Chicago, etc. R. R. Co. v. Anderson, 37 Sup. Ct. Rep., 124, where it held a statute valid which provided that all railroad corporations in Indiana should “cause all thistles, briars, docks, and other noxious weeds growing on lands occupied by them in any city, village, or township of the State, to be cut down and destroyed”; and annexed a penalty for its violation. The Court held that the statute was valid as applied in favor of contiguous landowners, stating that “as thus limited, we think its validity must be admitted under the doctrine of the May case.”

Applying these well settled principles to the facts of this case, we do not see why this statute is not’ a perfectly valid exercise of the State’s police power. The object in view when it was passed appears so clearly to be the protection of the forests on the watershed belonging to the city and used by it in connection with its water-works, that what was the real intention of the act is not the subject of argument. Where premises are in such condition and location that the proper maintenance of forests on them, or wooded land which is a part of them, will remove or diminish the danger of floods or landslides, the protection of the water basin, or other source of supply, from such consequences is of such great importance to the public, who use the water for domestic purposes and are dependent solely upon it, and the loss and incon venience from any impairment of it might be so incalcuable that it can hardly be conceived why the Legislature may not intervene by an exercise of the police power and prevent such a catastrophe. The loss to be averted would so considerably outweigh the injury resulting to the owner of contiguous lands and it would be so negligible when compared with the public damage, that the restriction imposed upon him will be disregarded as too insignificant to be set off against the great public benefit and pressing public necessity involved in the continued and proper maintenance of the watershed. It is no hardship for the landowner to clear his land of rubbish which he has made himself, and which, when it becomes dry, is so combustible in its nature as to be a standing menace to the adjacent forests. We have held that it is negligent for a railroad company to permit such inflammable matter as tree-tops, etc., to accumulate on its premises, which, if ignited, will spread fire to adjoining premises. Craft v. Timber Co., 132 N. C., 152. We have also enforced the provisions of our statute, Revisal, sec. 3346, against setting fire to woods without due notice to adjoining proprietors. Such restrictions upon the use of property have frequently been sustained by the courts, one writer stating that the books are full of such cases. Many of our municipal ordinances depend for their validity upon the existence of this power to preserve and promote the safety and welfare of the community. Considering a county ordinance requiring each landowner to rid his premis'es of the pesky ground-squirrel, by their extermination, which was held to be invalid because of the impossibility of executing it, the Court said, in Ex Parte Hodges, 87 Cal., 162, 165: “Such an ordinance differs materially from laws requiring an occupant of land to keep them free from noxious weeds, or such as make it the duty of an owner of diseased domestic animals to kill them in order to prevent the spread of the disease. These are matters over which the property owner has control, and the requirements are reasonable and just.” See, also, Freund on Police Powers, sec. 618.

A nuisance at common law is whatever is injurious to a large class of the community, or annoys that portion of the public which necessarily’ comes in contact with it. Prentice on Police Powers, p. 137; 2 Wh. Cr. Law, sec. 2370. There are several different classifications of nuisances, one of which is this: “First, those which are unisances per se, denounced as such by common law or statute; second, those which in their nature are not nuisances, but may become such by reason of locality or management; third, those which in their nature may be nuisances, but as to which there may be honest differences of opinion in impartial minds. As to the first and third, the municipal declaration is conclusive, but as to the second, the municipal power is confined to such as are nuisances in fact.” Freund on Police Powers, p. 30. We can scarcely hesitate to declare that to be a nuisance which threatens the main if not the only source of water supply to a'thickly settled com-munitv, containing a large and progressive city, which has attracted many to its borders in search of pleasure, health, or prosperity, because of its many natural advantages, its salubrious climate, the beautiful scenery of its surrounding mountains, from one of which it derives its water supply, and which are covered with virgin forests and porous soil, which hold in check the heavy rains and protect the streams from sudden and violent disturbances. Recent "experience has demonstrated the necessity of keeping these forests intact, and the National Government has purchased and established near there a large reservation partly for this purpose.

In the case before us the defendant, perhaps, did not intend to injure an.y particular persons, or to expose them to harm, but he was guilty of the criminal act in doing that which was prohibited, and which was calculated to produce injurious results, without regard to his particular intent. When a statute forbids a certain thing to be done, the intent to do the forbidden thing is the criminal intent, whether it be an immoral or evil one, per so, or not. Here the purpose of the law is to prevent the injury, and the gist of the crime is the effort to frustrate this intent. It is as much the duty of the State to protect the health of its citizens as it is to safeguard their lives and limbs against the acts of wrong-doers. Ethically considered, it is as culpable to endanger the safety and comfort of an entire community as it is to jeopardize the life of one of its members against whom a particular wrongful act is directed, and concededly more so. It is not the bad motive present in the mind, and which prompts the commission of the injurious act, but the doing of the act itself, that makes it indictable under the statute. Forest fires are not infrequent even in this section of the country, and they are caused generally by the dry and inflammable material lying upon the ground, and they spread with great rapidity and leave the destruction of vast areas in their wake. It was against the happening of such an event the statute was intended to provide. When such interests are involved as the safety and health of a large community, we cannot stop to speculate upon chances, or to take risks, as to what will happen, but we must keep on the safe side, so that if what would otherwise end in disaster does come, we will be prepared for it, and the public welfare will thereby be surely conserved. Durham v. Cotton Mill, supra; Bd. of Health v. Comrs., supra.

When a statute is assailed as unconstitutional, every presumption of validity should be indulged in its favor, and it should not be declared void except upon the clearest showing that it conflicts with the organic law. The conclusion that it is invalid should be unavoidable, and reached only after removing every reasonable doubt as to its incompatibility with the Constitution. Between the two there should be an irreconcilable conflict. Therefore it is that the highest Federal Court said: “In the exercising of the police power the means to be employed to promote the public safety are primarily in the judgment of the Legislature, and the courts will not interfere with duly enacted legislation which has a substantial relation to the purpose to be accomplished, and does not arbitrarily interfere with personal and private rights.” It was said in Skinner v. Thomas, supra: “The police power is an attribute of sovereignty, possessed by every sovereign State, and is a necessary attribute of every civilized government. 'It is the power to protect the public health and the public safety, to preserve good order and the public morals, to protect the lives and property of the citizens, the power to govern men and things by any legislation appropriate to that end.’ '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.’ The exercise of this power is left largely to discretion of the lawmaking body, and the authority of the courts cannot be invoked unless there is an unnecessary interference with the rights of the citizen, or when there is no reasonable relation between the statute enacted and the end or purpose sought to be accomplished,” citing 6 Rui. Case L., 183 and 236; 9 Enc. of U. S. Reports, 473; Slaughterhouse cases, 16 Wall., 36, 21 L. Ed., 394. It may be true that, let a statute be ever so charitable and the Legislature ever so generous, if the property of the subject is thus given away, or it is taken without any resultant benefit to the public, the legislation should not be countenanced; but such is not the case here. The defendant is not the owner of the soil, but had only some logging rights, in the timber growing upon it. When he cut and removed the timber, it was a comparatively easy matter for him to carry off the tree-tops and other debris, or, at most, no great burden or hardship, and his failing to do so created a constant menace to the local public. If there is any reasonable doubt of it, that doubt should be resolved in favor of the latter and against him.

The question is a very important one, and we have given to it most careful consideration. It was argued before us by Mr. Martin with his usual ability and learning, which means that the case has been presented for the defendant most stiongly from its every angle; but, after all he has said, we have not discovered any error in the record.

No error.