1900.] HASTINGS—POLICE POWER OF THE STATE. 423 
power of the people’s representatives. Those declarations were 
properly held to relate to rights already in existence and in practical 
enjoyment, and restrictions upon the powers of the legislatures, to 
be brought about at all, must have been made in express terms. 
It was as natural as it was fortunate that this prominent struggle 
between the legislature on the one hand and private interests, 
asserted upon the basis of the bill of rights, on the other, was 
over a question in reference to which legislative power had been 
immemorially employed. It may be noted that in Commonwealth 
vs. Alger we have a recurrence to Taney’s gunpowder illustration 
which suggested the term police power to Chief Justice Marshall. 
Evidently the use of the term by Chief Justice Shaw is derived 
through the case of New York vs. Miln from Marshall. 
Chief Justice Redfield’s decision in ' Thorpe vs. Rutland, Etc., 
R. R. Co. ranks, perhaps, with Commonwealth vs. Alger as a land- 
mark in the development of the police power. The company had 
been chartered in 1843. In 1849, a law of Vermont made it the 
duty of all railroad companies to fence their lines and to put cattle 
guards at all crossings. ‘The road claimed that its charter, ante- 
dating the law, empowered it to maintain its track and equipment 
and said nothing about such fences and crossings. It, therefore, 
claimed that because of this charter it was exempt from any 
changes in its duties, because the law requiring such additional 
duties must be held to impair the obligation of the contract con- 
tained in the charter. Judge Redfield made short work of the con- 
tention that the railroad company had any more rights than an 
individual would have who had taken the same grant of a franchise 
to build, equip and maintain a railroad and take toll of passengers. 
If any privileges belong to the company it must be on account of 
a special consideration and because given in express terms. 
The legislative power he found by universal agreement to be 
supreme in the English Parliament and to have passed with their 
independence to the states in the full measure possessed by Par- 
liament, except as it was found to be limited by state or federal 
constitutions. 
“It was supposed that the question was settled in this court in Nelson ws, 
V. & C. R. Company, 26 V7, 717. The general views of the court are 
there stated as clearly as it could now be done. But as the general 
question is of vast importance both to the roads and to the public and 
127 Vt., 140 (1855). 
PROC. AMER. PHILOS. SOC. XXXIX. 168. BB. PRINTED SEPT. 26, 1900. 
