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AMERICAN FORESTRY 



power "properly extends to the pro- 

 tection of public morals, public health, 

 and public safety." Instead of recog- 

 nizing the doctrine that private prop- 

 erty must yield to "general regulations 

 which are necessary for the common 

 good and general welfare" as declared 

 in a Massachusetts case, the New 

 Hampshire court affirms the "constitu- 

 tional principle of equality and the res- 

 ervation of private rights of the sub- 

 ject, which are paramount to all gov- 

 ernmental authority." 



These two states developed at the 

 same time, had the same common in- 

 terests, and were settled by the same 

 kind of people, and yet they have come 

 to an utterly diametrically opposed posi- 

 tion on the cjuestion of the constitu- 

 tional rights. The state of Massachu- 

 setts, with her very notable and able 

 courts, has come to the opinion that 

 private rights must be understood to 

 Idc subject to certain paramount rights 

 of the state ; while in New Hampshire, 

 where those of us who still remain, be- 

 lieve that all of the ability has not emi- 

 grated to Massachusetts, the position 

 taken by the supreme court is that 

 the private citizen — the subject, as 

 they call him in the opinion — has cer- 

 tain rights which cannot be interfered 

 with by any governmental authority. I 

 am not here to define either position, 

 but merely to point out the difficulty 

 in dealing with a question among sev- 

 eral states where these diverse views 

 are about equally divided, and with all 

 kinds of views between. 



A more recent case in New Hamp- 

 shire (Bigelow 7'S. Whitcomb) denies 

 the right of the state to take without 

 compensation trees standing within 

 highways which are needed for shade 

 and ornament. That, by the way, is a 

 difficulty which the New Hampshire So- 

 ciety has cured by having the law 

 amended. 



There can be no doubt, in my own 

 state, at least, that the constitution does 

 not permit confiscation of private prop- 

 erty or substantial interference with its 

 lawful use, under any theory of police 



power more extensive than is necessary 

 for the protection of the public morals, 

 health, and safety. 



That some states will adopt the 

 theory of the case in Maine, while 

 others will adhere to the more con- 

 servative view, is imquestionable. The 

 right and duty of the highest court in 

 each state to follow its precedents in 

 construing this fundamental law cannot 

 be questioned or criticized by those who 

 hold to difl^erent views. So long as the 

 states have any rights remaining, the 

 constitutional limitations which a state 

 has established and recognizes for itself 

 must be respected. 



Underlying the constitutional ground 

 is a broad principle of abstract right. 

 As has been stated by high authority, 

 "it is a familiar fact that the corporate 

 conscience is ever inferior to the indi- 

 vidual conscience — that a body of men 

 will commit as a joint act that which 

 every individual of them would shrink 

 from did he feel personally responsible." 



A statute imposing some measure of 

 restraint upon timber-land owners, with- 

 out ultimately (le])riving them of the 

 beneficial use of their property would 

 seem to satisfy the constitutional lim- 

 itations in most of our states; and if 

 such regulation is found to be neces- 

 sary and useful in protecting the public 

 good, it mav be reasonable to expect, 

 in time, that in other states the con- 

 stitutional limitations will be enlarged 

 to that end. 



In other words, I regard constitu- 

 tional objections as merely temporary, 

 if a means can be found fairly to work 

 out the result desired. If the consti- 

 tution is not broad enough to permit 

 an act which is proper and right and 

 fair, I am young enough to start in to 

 have the constitution amended wher- 

 ever it needs it. 



Looking at the definite question, it is 

 my present opinion that state regulation, 

 so far as it covers the method of cut- 

 ting, treatment of to])s. the matter of 

 fire lines, comes clearly within the rule 

 that the state may establish regulations 



