Ottumwa semi-weekly courier. [volume] (Ottumwa, Iowa) 1899-1903, 1900-01-02

THE OTTUMWA
in argument holding that all property
in the state is held subject to the pc.
| lice power. This proposition is not de-
MED by defendants, but it is claimed by
them that when such power is exercised
in such manner as to impair the obi
CATION of contracts, or to take private
property without compensation the
constitutional provisions overrides the
power and prohibits IFS exercise unless
compensation is made
The Nuiaance Contention.
Other authorities cited are cases of
common nuisance. Ii has never been
doubted that the state had the right
and power to abate nuisance, in fact,
even to the destruction of property,
without violating the constitutional
provision. This is a clear exercise of
the police power, promotive to the
health, comfort, safety and welfare of
society. This power is confined to ac-
tual nuisances, such as effect health
or comfort.
1t is insisted by the state that the.
claim is revokable because it had no
power to make a contract of that kind
is that the property is in the bed of the
river and the ownership Of the waters
is held by the state in trust for the
public and cannot be aiienated.
Hts Legal Aspect.
The sole object of the legislature in
| making the dam in this case was to
improve navigation. 1t erected the
dam for the purpose of facilitating the
navigation of the river. 1t had the
legal power to construct the dam with
locks and without fishways, it did so
construct it and sold it for a valuable
consideration just as it had erected it.
The dam, in that condition, became
the absolute property of Meeks, and
all right, title and interest of the state
therein was fully Invested. OF course
1t is not meant that the sale put the
property beyond the proper exercise of
the police powers of the state. If it
becomes dangerous to life or health,
or nuisance in fact, it may be abatsd
just as any other nuisance. And if a
tishway is necessary to the comfort or
welfare of the public the state can take
the property under the right of emf.
nent domain, in which cnse adequate
compensation will be given for the
property SO taken.
The Pennsylvania Case.
The state of Pennsylvania, about the
year 1927, constructed dam across the
Srsquehanna river for the purpose of
feeding It's canal, then about to be
completed, and kept it up until 1857,
when the whole right of the state was
conveyed absolutely to the Penusylva-
mia Railroad company, by which cor
poration it was afterwards sold TO the
PENNSYLVANIA Canal company. In 1866
an act was passed requiring fishways
in, all dams and defendant was indicted
for failure to put one in this dam The
case was. defended on the ground that
the act was unconstitutional as Yiola7
tive Of the, state and national cons1itu-
tons BY impairihg the obligation of
| the contract by which the state had
conveyed the dam to the company, and
as taking private properly without
compensation. To this it was answered
that the river was a public stream, and
the people on its batflls had an inhe-
rent right of free fishing which could
not be impaired or taken away, held
by the state in trust, and could not
therefore be parted with, sold or taken
away, and that the law was only the
exercise of police powers which the
state possesses over all persons or prop
terty within its borders which could
not be surrendered or sold. 1t is sell
dom that two cases are so nearly paral-
lelin their facts as that case and the
| one now under consideration The SUI
preme court of Pennsylvania held the
act unconstitutional and decided that
the defendant could not be required to
feomply with il because 10 so erequire
would cast burden on it thai was not
contemplated in the contract and
would to that extent impair its obliga-
ton, and that it would also amount to
taking private property without COM
pensation. In answering the contep-
ton that such requirement was merely
the exercise of:police power and there
| fore not violation of constitutional
provisions the court says: ..As we nm
derstand the police power of the state,
which has been strongly pressed upon
us as being unlimited and uncontrolla-
Bile, and which no state can part with,
| 1T is nothing more than the authority
to compel all owners of property SO to
use their own as not to injure others;
therefore the state cannot, by con-
tract, or otherwise, part with the pow
er to compel the owner of real estate
so touse it rs not to endanger the pub
| lie health or safety. This is, perhaps,
the extent to which writer's on that
subject press the doctrine. But il it
can be invoked for the purpose of en-
abling state to revoke its grant, vio-
late its contract, or take the property
of an individual for public or private
use, without making compensation, it
| is most dangerous power, and en-
ables the legislature to do that which
lis expressly forbidden by the constitu-
ton"
This cogent and persuasive reasoning
is fully supported by other authorities
It is said in Smiley VS.. Mcdonald AZ
Neb. page 5. that the legislature can
not, under the guise of q police regula-
ton, arbitrarily invade private proper
| ty or personal rights
| The prayer of the petition to abate
the dam at Bonaparte as nuisance be-
cause not supplied with a tishway is
refused, and bill dismissed with costs.
| Plaintiff excerpts.
December 20, 1899.
| Frank w. Echelberger. Judge.