We have made quite frequent references recently, to the negligent misuse of the term "police power." We have occasion to again call attention to this subject by reason of some remarks of the court in the case of Lindsley v. Natural Carbonic Gas Co., (U. S. C. C., S. D. N. Y.), 162 Fed. 954. In this case there was a question as to the constitutionality of an act which prohibited the pumping of mineral waters or carbonic acid gas from wells drilled into the rock, or the doing of any act or thing whatsoever whereby the natural flow from any mineral spring is impeded, etc.

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The court in the case cited relying on the case of Forbell v. City of New York, 164 N. Y. 522, 58 N. E. 644, 51 L. R. A. 695, 79 Am. St. Rep. 666, but feeling somewhat uncertain as to the correctness or of the application of this decision nevertheless refused to hold the act der consideration to be unconstitutional, saying: "In accordance with "In accordance with the authorities cited, it may be that the state of New York, though not the owner of the springs, and though not legislating for the safety, health, or morals of the community, may, in the exercise of its police power, regulate the subterranean mineral waters within its domain for the common benefit of persons interested in them, and that it may limit the use of them to the natural flow and declare pumping unlawful—certainly such pumping as endangers the rights of other persons interested in the same source of supply-and, further, that it may declare unlawful as a secondary use the pumping of such waters by the surface owner for the purpose of vending the gas to be extracted from them. The presumption is that the statute is constitutional. To justify the restraining order the unconstitutionality

should be clear. As it is not, I feel compelled to vacate the restraining order."

We take issue with the court that an act having no reference to the "safety, health or morals of the community" may nevertheless be within the "police power." Such a statement is paradoxical and a contradiction of terms. Any act which does not reasonably meet any one of the three great public emergencies, thus specified, is not within the police power, and, if not justified by any other legislative prerogative is unconstitutional and void.

terests.

But the court fails to observe, in the principal case, that legislation protecting the safety and security of the property of the people is clearly within the legitimate operation of the police power. Thus, building restrictions looking to the protection of the whole community from fire protects the "safety" of the people, in their property inAnd this, moreover, is the only principle which will justify regulation of the use of subterranean waters, oils and gases. The character of these substances are such that they do not rest securely within boundaries set and marked out upon the surface of the land. Therefore, a leak on one man's land may endanger the supply of his neighbor and of the whole community, and the government of such community in protection of the property interests of the people (their safety) may by any reasonable regulation guard against a waste which affects the whole community. Townsend v. State, 147 Ind. 624, 47 N. E. 19; Given v. State, 160 Ind. 552, 66 N. E. 750; Ohio Oil Co. v. Indiana, 177 U. S. 190, 20 Sup. Ct. 756.

But apart from these considerations, a regulation which attempts to deprive the owner of land absolutely of all commercial value of the substances under his soil is absolutely unconstitutional and a deprivation of private right without any proper justification. If it be proper for a state to prohibit the owner of property who by zeal or enterprise discovers natural carbonic gas under his soil, from pumping it out for commercial purposes, it is also proper for a state to say that no one should pump oil or

gas on their own land for commercial purposes. Such a law. deprives a man of the value of his property without due process of law. Nor does the police power justify such legislation as it can in no sense be said to be necessary to protect the whole community in the safety of their property rights. Everyone else under whose land the spring flows may pump and sell likewise. The right to sell invariably accompanies the right of ownership and cannot be taken away. Waste may be prohibited, the method of disposal regulated, but the right to commercially exploit what lies above or beneath the surface of one's own property can be taken away-never.

the appellant knew of the conditions which made the operation of its road dangerous, and with full knowledge continued to operate the road and receive and carry passengers thereon. It was not a case where a sudden peril was created by the act of God which appellant could not have reasonably foreseen and provided against. The trains were run by appellant at intervals of three or four minutes apart. The one on which plaintiff was riding was just starting to move away from the Ann street station when the collision occurred. The damage done to the cars by the collision shows that the rear train struck the forward one with very considerable force. It is very clear the evidence warranted the jury in finding the collision was not caused by the act of God, and that it resulted from the negligence of appellant."

NOTES OF IMPORTANT DECISIONS.

CARRIERS-IS A FOG CAUSING A COLLISION AN ACT OF GOD?-The occasion of a fog accounts for many railroad accidents. But is a collision between two trains or street cars during the prevalence of a fog to be attributed solely to the fog as an act of God, or does the fog not rather increase the degree of care required of the railroad company and therefore make them liable for running at a rate of speed which might be tolerated in clear weather, but which is obviously dangerous under such conditions. The courts accept the latter alternative in construing injuries to passengers occurring under such circumstances. Sandy v. Lake Street Elevated Railway Co. (Ill.), 85 N. E. 300. In the case cited the court said: "The fog in this case existed at 5:30 a. m., when appellant's superintendent went on duty. The collision occurred about 7:30 a. m. He observed the fog, and, concluding it was unsafe to run trains as was the custom under ordinary conditions, took extra precautions to avoid accidents by giving orders to disregard the schedule in operating trains and to run safe. He also posted extra men at different points, and directed the motormen to run their cars at such speed that they could be stopped within the range of their vision. While the law does not require a carrier of passengers to exercise the highest degree of care for their protection against dangers and perils not ordinarily incident to the operation of the road and the mode of conveyance, yet as to the known perils and dangers the carrier is required to exercise the highest degree of care, having in view the character and mode of conveyance and consistent with its practical operation. Here

MAY PROHIBITION LAWS AUTHORIZE THE TAKING OF PROPERTY WITHOUT COMPENSATION?

The acquisition, possession and protection of property are classed among the inalienable rights of men. To acquire and hold property is a natural right, with which the legislature cannot interfere, except by virtue of some express provision of the constitution, which is formed for the protection, and not the destruction, of the natural rights of everyone to life, liberty, property and the pursuit of happiness. No man can be deprived of life, liberty or property without due process of law; and due process of law means something more than mere legislation.1

Legislation, whether it be a city or county ordinance, or a legislative enactment, which destroys the value of property directly, or prohibits its use, when the owner thereof had, prior to the passage of the law, an unrestricted title thereto, is held to be in conflict with constitutional provisions designed for the protection of property rights. "Debarring a man," said Justice Brewer in the Federal Court, "by express prohibition, from the use of his property for the sake of the public, is a taking of private proper

(1) Sherman v. Buick, 32 Cal. 242, 250.

ty for public uses. It is the power to use, and not the mere title, which gives value to property. Give a man the fee simple title to a flour mill, coupled with an absolute prohibition of its use, and of what value is it to him? In the most common and ordinary case of taking private property for public uses, the condemnation of a right for a railroad, the title is not divested. The owner still retains the fee simple, and he is only debarred from the use. When the railroad abandons the use, he re-takes it. * * * It would be a very curious and unsatisfactory result, if, it shall be held, that, if the government refrains from the absolute conversion of real property to the uses of the public, it can destroy its value entirely, can inflict irreparable and permanent injury to any extent, can, in effect, subject it to total destruction without making any compensation, because, in the narrowest sense of that word, it is not taken for the public use. Such a construction would pervert the constitutional provision into a restriction upon the rights of the citizen, as those stood at common law, instead of the government, and make it an authority for invasion of private rights under the pretext of the public good, which had no warrant in the laws or practices of our ancestors."2 "All that is beneficial in property," Justice Field declared in the Supreme Court of the United States, "arises from its use, and the fruits of that use; and whatever deprives a person of them, deprives him of all that is desirable or valuable in the title or possession. If the constitutional guaranty extends no further than to prevent a deprivation of title and possession, and allows a deprivation of use, and the fruits of that use, it does not merit the encomiums it has received." It is a common argument that, when private property is taken for public use, there is always a transfer of the use from one party to another; and that under prohibition laws, the use is not transferred, but only forbidden, and that this deprivation of the use is only one of the consequential injuries resulting from a change of policy on the part of

(2) State v. Walruff, 26 Fed. Rep. 196. (3) Munn v. Illinois, 94 U. S. 141.

the state for which no compensation or redress is allowed. It is damnum absque injuria. But Justice Brewer has declared this argument to be unsound. Speaking of a law which prohibited the use of a brewery for the manufacture of beer, this eminent. jurist said: "Here, the use is taken away solely and directly for the benefit of the public. For no other reason, and upon no other ground, could it be disturbed. Of course, in this, as in other cases, some use remains in the owner; but here, as elsewhere, the use which is of special value, is taken from him for the benefit of the public; and this is not a consequential, but a direct, result. It is not that the profits of his business are reduced by reason of the prohibition upon sales. The law speaks to him by direct command, and says: 'Stop your manufacturing.' It is idle to talk of consequential results and injuries when the law, in direct language, forbids the use of the premises for a brewery. * * * I assert that natural equity, as well as constitutional guaranties, forbid such a taking of private property for the public good without compensation. * * * The guaranties of safety and protection to private property contained within our state constitutions forbid that any man should be thus despoiled of that which gives value to his property for the sake of the public good, without first receiving compensation for that which is taken from him." "We are unwilling," said the Illinois Court, "to concede the existence of an indefinable power, superior to the Constitution, that may be invoked whenever the legislature may deem the public expediency may require it, by which a party may be capriciously deprived of his property or its use without compensation, whether such property consist of franchises, or tangible forms of property." The New Jersey court has said: "That this power to take private property reaches back of all constitutional provisions, and it seems to have been a settled principle of universal law that the right to compensation is an incident to the exercise of that power; that