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under the implied liability that his use of it shall not be injurious to the rights of the community. All property in this commonwealth . . . . is held subject to those general regulations which are necessary to the common good and general welfare."

Chief Justice Redfield, in Thorpe v. Rutland and Burlington R. R. Co., 27 Vt. 149, 62 Am. Dec. 625, says: "This police power of the state extends to the protection of the lives, limbs, health, comfort, and quiet of all persons, and the protection of all property within the state."

The right to exercise this power cannot be alienated, surrendered, or abridged by the legislature, by any grant, contract, or delegation whatsoever, because it constitutes the exercise of a governmental function, without which it would become powerless to protect those rights which it was especially designed to accomplish. Thus it was held in Presbyterian Church v. City of New York, 5 Cow. 540, where the corporation had granted, with a covenant for quiet enjoyment, a piece of land to the plaintiff to be used for church purposes and as a cemetery, that the power of the municipal government to pass an ordinance forbidding the use of such premises as a cemetery for the interment of the dead constituted no breach of the covenant. It was said that "the defendants are a corporation, and in that capacity are authorized by their charter and by-laws to purchase and hold, sell and convey, real estate in the same manner as individuals. . . . . They are also clothed, as well by their charter as by subsequent statutes of the state, with legislative powers, and in the capacity of a local legislature are particularly charged with the care of the public morals and the public health within their jurisdiction.

. . They had no power as a party to make a contract which should control or embarrass their legislative powers and duties." To the same effect is People v. Morris, 13 Wend. 325.

In Wynehamer v. People, 13 N. Y. 421, Judge Comstock says, in speaking of rights of property: "The substantial right cannot be destroyed; its enjoyment is not an offense. At the same time, the mode of enjoyment, in its broadest sense, is subject to legislation, though it be affected very injuriously, provided a substantial right is left. The claim made by the relator in this case would authorize it to tear up the streets of the city at such times, in such places, and under such circumstances as it might itself determine, regardless of the public convenience and welfare, and the rights of other

claimants to the occupation thereof, and place it beyond the reach of all power by the legislature to regulate the mode and manner of the enjoyment of its rights.

We do not think such a claim can be sustained. It is neither within the terms of its contract, and if it were, it is still subject, in the respects mentioned, to the police power of the state.

The order of the general term should be affirmed, with costs.

Order affirmed.

LOCAL AND PRIVATE LAWS. — A law is not necessarily a local law because "the practical effect and operation of the law is and must be in every in stance local, special, and private." It is sufficient that the law offers like privileges to all who may comply with its terms or come within its provisions. In sustaining the constitutionality of a statute regarding elevated railways, the court of appeals of New York said: "The fact that some are not able to avail themselves of the opportunities offered does not impugn the general character of an act. When a railroad, under the general law, is constructed from one point to another, the topography of the country through which it runs may be such as to forbid the construction of another railroad. But one elevated railway can be constructed through the same street; and hence, upon any route in a city, but one company for the construction of a railway is practicable; and while the legislature could not by private act incorporate such company, the problem for it to solve by the general act was, how such railways could be constructed under a general act authorized by the constitution. It would not be feasible to permit the formation of several corporations to operate railways in the same streets, nor would it be wise to lease a railway to be constructed by the corporation which by accident was first in time. Nor would the same plan for the construction and operation of railways in all places be practicable. Hence it became the duty of the legislature, by a law having a general operation, to provide machinery which should determine the necessity of a railway, and the streets and places where it should be constructed, the company or organization of individuals which should construct it, and the plan upon which it should be constructed. While upon any route the franchises are given to one corporation, the formation of that corporation is open to all persons on the same terms, and no person is excluded from becoming a stockholder therein. The methods adopted in this act seem well devised to attain the end sought, and it is quite certain that, without some such methods, no elevated or underground railways can be constructed. And the act is not limited in time. While it is true that one set of commissioners can act upon but one application, a new set of commissioners can be appointed whenever any persons desire to form a corporation, and present the proper application. I can therefore entertain no doubt that this is a general act within the meaning of the constitution": In the Matter of N. Y. Elevated R. R. Co., 70 N. Y. 346. In In the Matter of Church, 92 N. Y. 4, it was truly said, with respect to local and general laws: "It is not easy to define with accuracy the difference between the two forms of legislation, and the difficulty is better solved by adding examples to definitions. A law relating to particular persons or

things as a class is said to be general; while one relating to particular persons or things of a class is local and private." Referring to a statute applicable to counties having within their boundaries a city of more than one hundred thousand inhabitants, the court said: "The act of 1881 relates to a class, and applies to it as such, and not to the selected elements of which it is composed. The class consists of every county in the state having within its boundaries a city of one hundred thousand inhabitants and territory beyond the city limits mapped into streets and avenues. How many such counties there are now or may be in the future we do not know, and it is not material that we should. Whether many or few, the law operates upon them all alike, and reaches them, not by a separate selection of one or more, but through the general class of which they are general elements. The force of the general law of 1881 is not localized in Kings County and confined to its territory. By its terms it applies equally to every other county which may prove to be within the constituted class. It is said there is but one such county; and so also it is said there was but one elevated railroad. Neither fact at all narrowed the terms of the law. Those terms in each case were broad enough to cover every county in the state, if it had the required city and the mapped territory on the one hand, or its own elevated road on the other." These remarks were made with regard to a statute which, though in terms applicable to any county within the state, was in fact obviously intended to operate in a particular county only, and was unquestionably enacted in such terms as might obey the letter, while they violated and destroyed the spirit, of the constitutional inhibition against local legislation.

IRREPÉALABLE LAWS. - Whenever a statute or a statutory grant partakes of the nature of a contract, any substantial modification thereof by the legis lature is impossible as against persons whose rights would be injuriously affected because of the provisions of the constitution of the United States forbidding the enactment of any statute impairing the obligation of contracts. But unless controlled by this provision of the national constitution, or of the constitution of the state, a statute can never have the character of final or irrevocable legislative action. "Similar reasons to those which forbid the legislative department of the state from delegating its authority will also forbid its passing any irrepealable law. The constitution, in conferring the legislative authority, has prescribed to its exercise any limitations which the people saw fit to impose; and no other power than the people can superadd other limitations. To say that the legislature may pass irrepealable laws is to say that it may alter the very constitution from which it derives its authority; since, in so far as one legislature could bind a subsequent oue by its enactments, it could in the same degree reduce the legislative power of its successors; and the process might be repeated, until one by one the subjects of legislation would be excluded altogether from their control, and the constitutional provision that the legislative power shall be vested in two houses would be to a greater or less degree rendered ineffectual": Cooley's Const. Lim. 152.

POLICE POWER OF STATE is considered with respect to the constitutionality of laws inhibiting or regulating the manufacture and sale of certain articles which are supposed to injure or deceive the public, in the note to Butler v. Chambers, antc, p. 644–650, in Commonwealth v. Kimball, 35 Am. Dec. 326, and note 334, 335, and Thorpe v. Rutland R. R. Co., 62 Am. Dec. 625, and note.

INDEX TO THE NOTES.

ACTION, survivorship on death of person injured, 461.

AGREEMENT to use real property for special purposes only, 822.
ATTACHMENT, judgment rendered on, is valid against non-residents, 41.
ATTORNEY AT Law, dealings by, affecting client's interest, 259.
purchase by, when must hold in trust for his client, 259.

BROKERS, gambling contracts, right to commissions on, 766.
right to commissions on sales for future delivery, 754.

CHARITABLE USES, bequests to, 415.

COMMON CARRIERS, contracts limiting liabilities of, 728.
COMPOSITION DEEDS, agreements which will avoid, 891.
CONDITIONAL SALES, form of, is not conclusive, 63, 64.

in form, when will be declared mortgages, 63, 64.
tests of, 64.

validity of conditions of, 63.

when not sustained as against bona fide purchasers, 63.

CONSTITUTION, amendments to, entry of on journals of legislature, 21.
amendments, essential elements of adoption of, 21.

CONSTITUTIONAL LAW, effect of statute prohibited by the constitution, 75.
law, meaning of this word as used in constitution, 74.

statutes authorizing payment of claims created under an unconstitu
tional statute, 75.

statutes requiring railroad companies to construct farm-crossings, 149.
CONTRACTS between spiritualistic mediums and believers in their powers,
88, 89.

for sale of chattels which the vendor does not own, when void as wager-
ing contracts, 752-760.

for the sale of whisky, when invalid, 302, 303.

CORPORATIONS, acceptance of negotiable instrument by officers of, when
binding, 136.

foreign, extent to which may act and contract, 161.

foreign, right of to exercise their powers in other states, 160, 161.
holder of stock of as collateral, not liable as stockholder of, 783.

negotiable paper, issued by, is presumed to have been authorized, 136.
pledgee of stock belonging to the corporation, 784.

preferred stockholders, to what profits entitled, 342.

DAMAGES, for loss of profits, 229.

special for delay, 228.

DEED, acceptance of by minor is presumed, 243.

composition agreements which will avoid, 891.

DEED, delivery of is essential, 242.

delivery of without leaving hands of the grantor, 243.
quitclaim, by mortgagee, passes no title, 247.

quitclaim of land held under land-office certificate, 247.

quitclaim, what passes by, 247.

quitclaim, when may convey greater title than grantor has, 247.
recording does not dispense with delivery, 243.

to operate only after death of grantor, 243.

DEFINITION of irreparable injury, 374.

ELECTION between action in tort and in contract, 627.

between consistent remedies is not irrevocable, 626.

between remedies, when irrevocable, 626.

evidence of, what is, 628.

ESTATES OF DECEDENTS, debts against, out of what property payable, 171.
legacies against, out of what property payable, 172.

vest in their heirs, 171.

ENTRY of constitutional amendments in journals of legislature, 21, 22.
ESTOPPEL by encouraging another to improve land, 826.

by permitting construction of quasi public improvement, 826.
EVIDENCE to explain writing, 114.

parol, to vary or explain written acceptance, 137.
EXECUTION, exemption applies to interest of co-tenant, 593.
exemption, laws granting are liberally construed, 593.
exemption of partnership property, 593.

EXECUTOR, foreign, assignee of, action by, 160.

foreign, sale of mortgage by, 160.

foreign, suits by or against, 160.

EXTRADITION, duty to surrender fugitives, 179.

fugitives from justice, arrest and detention of, 179.

habeas corpus, what may be inquired into upon, 179.

FRAUD in sale, right of rescission not lost by suing for purchase-price, 626.
FRAUDULENT CONVEYANCE, attack on need not be made in equity, 216.
attack on, when judgment must be shown, 626.

GAMBLING, loan for purpose of, when not collectible, 302.

HOMESTEAD in partnership lands, 594.

ICE on ponds, right to cut, 352.

on ponds, riparian owner's right to, 352.

on rivers, right to travel on, 352.

INFANT EMPLOYEES. See MASTER AND Servant.

INJUNCTION against business so conducted as to constitute a nuisance, 54.

irreparable injuries, cutting ornamental or fruit trees, 377.

irreparable injuries defined, 374.

irreparable injuries, destruction of estate is, 376.

irreparable injuries, digging up land, 376.

irreparable injuries, disturbance of right to stream of water, 376.

irreparable injuries, how alleged, 378.

irreparable injuries, instances of injuries which are not, 377.

irreparable injuries, interference with burial grounds, 376.

irreparable injuries, removing minerals from mines, 376.
irreparable injuries, tests of, 375.

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