Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1908-03-14
LEGISLATURE CAN CON.
troll LUMBER CUT.
Maiority Of Maine Supreme Court So
Decides, In Answer to Questions
From the Senate Of 1907.

promote the health, peace, morals. ed
ucation and good order of its people,
and to legislate so as to increase the
industries of the State, develop its
resources and add to it's wealth and
prosperity" 1t may be added that the
proposed laws and regulations would
net discriminate between persons or
corporations but only between things
and situations. with a classification
not merely arbitrary but based on real
differences in the nature, situation and
condition of things.
We think the only provisions in the
State constitution that could be reason
ably invoked against the proposed laws
and regulations are the guaranteed right
of acquiring, possessing and defending
property and the provisions that ''pr!-
vate property shall not be taken for pubs
lie uses without just compensation"
Dec of Rights, Sec. 1 and 2D. If, how
ever. the proposed legislation would not
conflict with the latter provision, it eyi-
IDENTIFY would not with the former: hence
only the latter one need be considered.
The question of what constitutes a
taking of private property i'll the con-
stitutional sense of the term has been
much considered and variously decided.
In the earlier cases and in the older
states the provision has been construed
strictly. In some states in. later cases it
has been construed more widely to in
clude legislation formerly not considered
within the provision. Still more recent
ly, however the tendency seems to be
back to the principles enunciated in the
earlier cases In Massachusetts. one of
the earliest states to adopt the consti
tutional provision, and in Maine, adopting
the same provision in succession. the
courts have uniformly considered that it
was to be construed strictly as against
the police power of the LEGISLATURE.
Commonwealth VS.. Tewksbury, II Met.
h5 decided in 1916, was a case where the
Legislature prohibited the owners from
removing "any stones, gravel or sand'
from their beaches in Chelsea as rect
sary for the protection of Boston +
not operate to "take" property witt the
meaning of the constitution, but l,a5 "a
just and legitimate exercise of thr power
Of Legislature to regulate and .cstrain
such particular use of property would
DC inconsistent Will OF lnJU1lb'. IS TO inc
rights of the public" Common cath VS.
Alger, { Cush. SO. decided in i, was a
case where the defendant was prohibited
by statute from erecting and maintain
ing a wharf on his own land (fats) be-
vond certain fixed lines. The court held
that the defendants title to the land
(fats) was fee simple, ard that but for
statute he would have had full right to
erect and maintain wharvcs upon any
part of it where they would not obstruct
navigation. It was not cl; lmed that the
proposed wharf would o. strrlct ,naviga-
tion. but rather admitted that it would
MT. The court further held, however.
that the statute was within the legsa-
I'VE rover and not forbidden by any
clause in the constitution. The question
was considered at length In an opinion
by Chief Justice Shaw. and the principle
stated as follows, viz (p. 81.
1--WE think it a settled principle, grow.
ing out of the nature of well-ordered
civil society, that every holder of prop
erty, however absolute and unqualified
NAV be his title, holds it under the i'm
pied liability that his use of It may be
so regulated that it shall not be injuri-
having an equal right to the enjoyment
of their property, nor injurious to the
rights Of the community. All property
in this commonwealth, as we'll that in
the interior as that bordering on tide
waters, is derived directly or indirectly
from the government and held sub iect
to those general regulations which are
necessary for the common good and gem
eral welfare. Rights of property like all
other social and conventional rights. arc
subject to such reasonable limitations in
their enjoyment as shall prevent them
from being injurious, and to such reason
able restraints and regulations establish
ed hy law as the Legislature, under the
governing and controlling power vested
in them by the constitution, may think
necessary and expedient. This is very
different from right of eminent domain"
etc.
In the case Wadleigh vs. Gilman. -
Maine, 4O3, decided in 1885. only fifteen
years after the adoption of our Consti-
tuition, there was upon the plaintiffs
land wooden building. A city ordi-
nance was passed by legislative author