FORESTRY COMMISSIONER 59 



such legislation by a state would seem to be that in XIV amendment. As to 

 that provision, we think it sufficient to quote the language of the United States 

 Supreme Court in Barbier versus Connolly, 113 United States 27, where, speaking 

 of the XIV amendment, the Court said: "But neither the amendment, broad 

 and comprehensive as it is, nor any other amendment was designed to interfere 

 with the power of a state, sometimes termed its 'police power,' to prescribe regula- 

 tions to promote the health, peace, morals, education and good order of its people, 

 and to legislate so as to increase the industries of the state, develop its resources 

 and add to its wealth and prosperity." It may be added that the proposed laws 

 and regulations would not 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 provision that "private 

 property shall not be taken for public uses without just compensation." Dec. 

 of Rights, Section i and 21). If, however, the proposed legislation would not 

 conflict with the latter provision, it evidently would not with the former; hence, 

 only the latter one need be considered. 



The question of what constitutes a "taking" of private property in the 

 constitutional 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 re- 

 cently, however, the tendency seems to go back to the principles enunciated in 

 the earlier cases. In Massachusetts, one of the earliest states to adopt the con- 

 stitutional 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 versus Tewkesbury, 11 Met. 55, decided in 1846, was a 

 case where the legislature prohibited the owners from removing "any stones, 

 gravel or sand" from their beaches in Chelsea as necessary for the protection of 

 Boston harbor. The court held that the statute did not operate to "take" prop- 

 erty within the meaning of the constitution, but was "a just and legitimate exercise 

 of the power of legislature to regulate and restrain such particular use of property 

 as would be inconsistent with or injurious to the rights of the public." Common- 

 wealth versus Alger, 7 Cush. 53, decided in 185 r, was a case where the defendant 

 was prohibited by statute from erecting and maintaining a wharf on his own 

 'and (flats) beyond certain fixed lines. The court held that the defendant's 

 title to the land (flats) was a fee simple, and that but for statute he would have 

 had full right to erect and maintain wharves .upon any part where they would 

 not obstruct navigation. It was not claimed that the proposed wharf would 

 obstruct navigation, but rather admitted that it would not. The court further 

 held, however, that the statute was within the legislative power 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: 



"We think it a settled principle, growing out of the nature of well ordered 

 civil society, that every holder of property, however absolute and unqualified 



