1900.] HASTINGS—POLICE POWER OF THE STATE. 467 
distinctly than in these two opinions. It would be hard to find any 
place where it is more distinctly to be seen that the real question 
is whether the actual guarantees for the enjoyment of individual 
and property rights and the limits to such enjoyment shall be 
sought in common-law precedents or shall be found inthe terms of 
our written constitutions. 
It is to be said that in finding judicial decisions to support 
their assertion that to impair the use of property is to deprive 
the owner of it the dissenting judges were not very successful. 
The truth is, as Mr. Sedgwick quite clearly pointed out in his 
work on *? Zhe Construction of Statutory and Constitutional Law 
in 1857, interferences with the use of property for reasons of 
police have not been held to be a taking, nor to be subject to 
the inhibition of Magna Charta or that of state constitutions. 
Nor are they very fortunate in trying to establish a distinction be- 
tween the effects of this law and others, as, for instance, usury 
laws. They found themselves compelled to resort to what they 
themselves, as judges, would unsparingly condemn in advocates. 
They make use of the general expressions in favor of the sacredness 
of property and personal rights to be found employed by the courts 
in the discussion of cases of a quite different character from that 
they had under consideration. 
The real distinction, more or less consciously underlying all the 
precedents, that legislation of this character is to be deemed good 
and constitutional if it is a real exercise of a true function of the 
state in providing for the general welfare and in guarding against 
a real overcharging of those who are not ina position to protect 
themselves, and is void if merely a more or less complete confis- 
cation, seeking to disguise itself as such regulation, did not yet 
clearly develop itself. 
The next case, the * Chicago, Burlington & Quincy Railroad Co. 
vs. lowa, passed upon at the same session in an opinion also by 
Chief Justice Waite, applies the same reasoning in all respects and 
very briefly to the Iowa law establishing maximum rates of charge 
for transporting passengers and freight. 
This law, also, was resisted as being an impairment of the con- 
tract in the charter of the road as well as for all the reasons urged. 
in Munn gs. Illinois. 
1 P. 435, Pomeroy’s ed, OPI. Se M55. 
