68

an exclusive right to supply gas to a municipality, through pipes and mains laid in the public streets, upon condition of the performance of the service by the grantee, is not a monopoly of the sort against which the constitutional prohibitions are directed, but a grant of a franchise vested in the state, and, after performance by the grantee, becomes a contract which the state may not impair. 67 On the same principle, an exclusive privilege to a city to erect and maintain waterworks is no monopoly; and granting the same exclusive privilege for a term of years to a private corporation does not render it a monopoly. Again, under proper legislative authority, a city may grant to a street-railroad company the exclusive right to lay and operate its tracks in the streets of the city for a term of years. And the grant of an exclusive right to build and maintain a toll bridge, or a ferry, or a turnpike road is not one of the monopolies reprobated and forbidden by the law.70 The same is also true of an act giving to a butchering company the exclusive right for a term of years to slaughter cattle for a populous city." And so, a law providing for the granting of permits, to persons of good moral character, who are citizens of the state or county, to sell intoxicating liquors, is not in conflict with the constitutional provisions under consideration.72 And it has always been considered, from the earliest times, that the granting of pat

67 New Orleans Gaslight Co. v. Louisiana Light & Heat Producing & Manuf'g Co., 115 U. S. 650, 6 Sup. Ct. 252. And see, also, State v. Milwaukee Gaslight Co., 29 Wis. 460; Crescent City Gaslight Co. v. New Orleans Gaslight Co., 27 La. Ann. 138; Louisville Gas Co. v. Citizens' Gaslight Co., 115 U. S. 683, 6 Sup. Ct. 265; Saginaw Gaslight Co. v. City of Saginaw, 28 Fed. 529.

68 City of Memphis v. Memphis Water Co., 5 Heisk. (Tenn.) 495; New Orleans Waterworks Co. v. Rivers, 115 U. S. 674, 6 Sup. Ct. 273; Atlantic City Waterworks Co. y. Atlantic City, 39 N. J. Eq. 367.

69 Des Moines St. R. Co. v. Des Moines B. G. St. Ry. Co., 73 Iowa, 513, 33 N. W. 610; Indianapolis Cable St. R. Co. v. Citizens' St. R. Co., 127 Ind. 369, 24 N. E. 1054.

70 Proprietors of Charles River Bridge v. Proprietors of Warren Bridge, 11 Pet. 420.

71 Butchers' Union Slaughterhouse Co. v. Crescent City Live-Stock Landing Co., 111 U. S. 746, 4 Sup. Ct. 652; Slaughterhouse Cases, 16 Wall. 36.

72 In re Ruth, 32 Iowa, 250; Thomasson v. State, 15 Ind. 449; Black, Intox. Liq. § 49.

ents for inventions and copyrights on books was a case of a lawful and permissible monopoly.73

The power to grant monopolies does not appertain to a municipal corporation unless upon express grant. "A municipal corporation can grant, if at all, exclusive privileges for the protection of business which, without prohibitory legislation, would be free to all men, only under express legislative grant of power. Monopolies being prejudicial to the public welfare, the courts will not infer grants thereof, refusing to presume the existence of legislative intention in conflict with public policy." 74 As we have already seen, laws against the formation of trusts or monopolies are generally sustained as valid and constitutional. For instance, a state constitution or statute prohibiting the consolidation of a railroad with a parallel or competing road is a valid exercise of the police power.75

MARRIAGE AND DIVORCE.

209. The right to enter into the relation of marriage is a natural right. But in the interests of society, it may be regulated, and to a proper extent limited, by law. For the same reason, the dissolution of the marriage relation, during the life of the parties, can take place only in accordance with general public laws.

Marriage is not a mere contract, but it creates a status. It is for the interest of the state that marriages should take place and be fruitful, but not that they should be had between unfit persons or those who would be likely to inflict upon the community a helpless, feeble, or demoralized progeny. For this reason, it is competent for the state to prohibit the intermarriage of persons

73 Butchers' Union Slaughterhouse Co. v. Crescent City Live-Stock Landing Co., 111 U. S. 746, 763, 4 Sup. Ct. 652.

74 Logan v. Pyne, 43 Iowa, 524. And see Davenport v. Kleinschmidt, 6 Mont. 502, 13 Pac. 249; Mayor, etc., of Hudson v. Thorne, 7 Paige (N. Y.) 261; State v. Cincinnati Gaslight & Coke Co., 18 Ohio St. 262; Saginaw Gaslight Co. v. City of Saginaw, 28 Fed. 529; Minturn v. Larue, 23 How. 435; Citizens' Gas & Mining Co. v. Town of Elwood, 114 Ind. 332, 16 N. E. 624; Carroll v. Campbell, 108 Mo. 550, 17 S. W. 884.

75 Louisville & N. R. Co. v. Kentucky, 161 U. S. 677, 16 Sup. Ct. 714.

standing in a near degree of consanguinity, persons who have not attained a sufficient age, and those who are mentally afflicted or diseased. Moreover, while it would probably not be competent for the state to require any particular religious form or ceremony to be observed in the formation of the marriage relation, it is undoubtedly proper to establish such rules (as to the obtaining of a license, the registration of marriages, and the like,) as will tend to guard against improvidence in assuming the responsibili ties of that estate, and against fraud, and also to secure publicity, certainty, and official evidence. And since marriage is not a mere civil contract, it follows that it cannot be dissolved at the will of the parties. The interest which the state has in this status, and in its preservation, gives it the right to prescribe general and uniform laws enumerating the causes for which divorces may be granted and regulating the procedure thereon.

SUMPTUARY LAWS.

210. Sumptuary laws, in general, are not only utterly foreign to the spirit of our institutions, but they are inconsistent with the guaranties of personal liberty and the right of property. Laws partaking of the nature of sumptuary laws, however, may be passed in the lawful exercise of the police power of the state.

Sumptuary laws are laws made for the purpose of restraining luxury or extravagance, particularly against inordinate expenditures in the matter of apparel, food, furniture, etc. They are odious in character, and contrary to the principle of liberty which assures to each the right to so use and dispose of his own property as shall seem best to him, provided he does not infringe upon the rights of others. Very few instances of an attempt to make or enforce such laws are recorded in our judicial annals. But the police power of the state authorizes it to enact laws which shall restrain the citizen from making such use of his property or his liberty as may be injurious to the public safety, health, or morals. For instance, the restrictions upon the manufacture and sale of intoxicants, if they are to be regarded as in any sense sumptuary laws, are nevertheless valid as made in the exercise of this power.

EDUCATION.

211. In most of the American states, the right to acquire education is recognized by the constitutions as a civil right, which it is the duty of the state to preserve and protect.

This recognition of the right of education is effected by provisions in the constitutions declaring that, as the general diffusion of knowledge and intelligence is essential to the preservation of the rights and liberties of the people, it shall be the duty of the legislature to encourage the promotion of learning, or by similar provisions. Almost without exception, the state constitutions require the legislature to provide a system of free schools, and in many of the states a school fund is provided by the constitution to be used for that purpose. In eighteen of the states, the constitution provides for a state university." But, as a rule, these instruments also provide that no public money shall ever be appropriated for the support of any sectarian or denominational school. In some cases the constitution authorizes the legislature to make laws for the compulsory attendance of children at the public schools. But this would clearly be within the competence of a state legislature, even without direct authorization, at least in so far as to enforce attendance at such schools upon all children whose education was not otherwise provided for. Since the public schools are established by the public and for the benefit of the public, the system must be equal and impartial and provide the same accommodations and opportunities for all who may be entitled to take the benefit of them, without any distinction or discrimination, except such as may be founded on age or degree of advancement.

A part of the public school system, in this country, consists in the division of the state into separate "school districts," which are invested, to a considerable extent, with powers of local self-gov

76 But in New York it is said that the right to be educated in the common schools is not a constitutional right, but one derived entirely from legislation, and as such it is subject to such limitations as the legislature may from time to time see fit to make. Dallas v. Fosdick, 40 How. Prac. (N. Y.) 249. 77 Stim. Am. St. Law, p. 11.

ernment, and are regarded as quasi municipal corporations. Money for the support of the schools is raised by general taxation in the several districts, or throughout the state. To such taxation all property owners are liable, whether or not they have children to be educated at the public expense. The benefit of the public schools is for the state, and not for the individual, and no one can say that he is not benefited thereby, although one may be benefited more directly than another. Sometimes also the state will lend its aid to educational institutions which are not directly under its control, by exempting their property from taxation. In view of the importance to the state of a general diffusion of education, it cannot be said that such exemptions from taxation are an unlawful partiality shown to individuals.

DUE PROCESS OF LAW.

212. By the provisions of the federal constitution, both the United States and the several states are prohibited from depriving any person of his life, liberty, or property without due process of law.

The forty-sixth article of Magna Charta declares that "no freeman shall be taken, or imprisoned, or disseised, or outlawed, or banished, or anyways destroyed, nor will we [the king] pass upon him or commit him to prison, unless by the legal judgment of his peers, or by the law of the land." This has always been regarded as one of the great safeguards of liberty, and it has been incorporated, as a matter of course, in every American constitution. The language of the clause, as found in these instruments, is not always the same. It is more usual to employ the phrase "due process of law" than that which appears in Magna Charta. But it is well settled, by repeated decisions of the courts, that the two terms, "due process of law" and "the law of the land," are of exactly equivalent import.78

78 2 Co. Inst. 50; Millett v. People, 117 Ill. 294, 7 N. E. 631; Davidson v. New Orleans, 96 U. S. 97.