Richmond dispatch. [volume] (Richmond, Va.) 1884-1903, 1886-04-16
POWDER MAGAZINES.
sUPREME COURT OF APPEALs sAYs
THEY MUST BE MovEp,
Full Text Of the Opinion as Delivered
Yesterday by Judge IL.
Lewis. &c, &c.

In the Supreme Court Of Appeals
yesterday, in the case Of Davenport \
Morris against the city Of XII ;hmond,
the judgment Of the Hastings Cour;
was affirmed, Judge Lewis delivering
the opinion; Judges Fauntleroy aoc
Richardson dissenting.
When required by the City Council
to move their powder-magazine from
the city the owners contended that theI
bought the lots from the city, and ths
in one deed it was stated to be for thf
purpose of building q powder-mags
zine. In the other deed the resolution
of the Council in pursuance Of which
it was executed contained similar
statement. They therefore insisted:
/. That q contract existed betweei
the city and the owners which conll
only be abrogated, if public convenieucs
required, by coDpensating them in dam
ages.
2. That if, as was maintained for th
city, she had no right to make sucl
q contract, then she could cause The
I-mssasinss--+s be removed only sf-
showing in Judicial proceeding ths'
they had become nuisance, and not bg
a resolution Of the Council passed with
out notice to them.
The following is the full opinion:
1t is conteDded that the ordinance
complained OF is unconstitutional and
void-frst, because it impairs yestel
rights Of the defendants under q pre-
vious valid contract with the City Cour-
Gil and second, because it takes tn
property Of the defendants without
compensation.
Upon the principles recognized b7
this court in Richmond, Fredericksburg
and Potomac Railroad Company rs.
City Of Richmond-26 Graft, S3-Te
are Of opinion that this position is rot
well taken. In other words, that TIE
withdrawal Of the privilege previously
granted to the defendants to erect ard
maintain a powder-magazine within tie
city limits was the valid exercise d
the police power with which TO tina;
extent the city is invested by the LIE
gislature, and with reference to which
the privilege was granted and accepted
And hence the inconvenience Of which
the defendants complain is damHun
dbSgue tnjurio.
However difficult it may be, il it Is
possible at all to exactly define ths
limits of that power, there is NJ
doubt that it extends to the protection
Of the lives, health, morals. and safety
OF all persons in the community, and
that it cannot, by contract or Other
wise, be parted with by municipal
corporation to which ii may be DELI
gated.
This question was very fully Dis
cussed by Judge Christian in deliver
Ing the opinion Of the court in the case
Just mentioned. There the validity or
an ordinance forbidding the railroad
company to propel its engines and cars
by steam on Broad street in this CITY
was assailed by the company, on TIE
ground that it violated the contract
rights Of the company under its chE-
ter and the previous action Of the City
Council. But the ordinance was held
TO be valid.
II may be, said the Court, that tbs
company is the loser by the ordinancs
in question, but upon well-establshel
principles it has no claim for comper-
sstion, because there has been no AZ
preparation Of its property, but only
the regulation of the mode in which its
chartered rights are 10 be exercised. It
was also said that every person holds
his property subject to the Limitation
expressed by the maxim SIC utere tho
m olienRm non lGedas, exercised either
by the Legislature directly or by put.
lie corporations TO which the Legisls-
ture may delegate it. That al
laws and ordinances relating to
the safety, comfort, health, AMI
general welfare Of the inhabitants. con-
monty called police-laws and reguls-
tions, are not invalid, though they di-
turb the enjoyment Of individual righls
and make no provision for compens,-
tion for such disturbances that TIE
power TO restrain a private injurious
use Of property is very different from
the eminent domain that under The
latter compensation must always be
made; but under the former it is not o
taking Of private property for public
use, but the salutary restraint Of
noxious use by the owner contrary TO
the maxim above referred to. And
among the familiar examples Of the eX-
ercise OF this power by all well-ordered
governments, the Court mentioned laws
and ordinances prohibiting the storage
of gunpOwder in populous places, The
use Of buildings as hospitals for cont,-
gious diseases, the carrying on Of noI-
ious OF offensive trades, and the like.
Dissatisfied with the judgment Of
this court the company took the case
on writ Of error to the Supreme Court
Of the United States, and there tie
Judgment was affirmed.
In the opinion Of the latter court it
was heidi, that the ordinance id
not impair the rights OF the company
under its charter 2, that it did not
deprive the company Of its property
without due process of law; and 5,
that it did not deny to the company
the equal protection Of the laws.
The power to govern" said the
Court, ''implies the power to ordain and
establish suitable police regulations,
and - il is not for US to determine in this
case whether the power has been judi
ciously exercised. Our duty is 81 sn
end if we find that it exists" Aud
further, il was said that appropriate
regulation Of the use Of property is not
the taking of property within the
constitutional prohibition. ."-Railroad
Company rs. Richmond, sc q. s., 52l.
In Presbyterian Church rs. The
Mayor, &C., ofNew York-5 Cow, 53s-
an action was brought for IN alleged
breach Of covenant for quiet enjoyment
in deed executed by the defendants
conveying certain land for valuable
consideration for the purpose OF a