Open main menu

Page:Harvard Law Review Volume 1.djvu/277

This page has been proofread, but needs to be validated.

dispensable to the public welfare that it cannot be bargained away by contract;” that, under the laws at any time provided for the protection of the public health, individuals may acquire property rights (e. g., the exclusive right within a designated area to keep a place for slaughtering animals and preparing their meat for market) which are unassailable, and must be respected by other individuals; and that property so acquired is held subject to the right of the legislature to qualify or destroy it at will according to its judgment of what the public interest requires, and without regard to investments that may have been made or calculations based on the action of a prior legislature, even though such action took the form of a contract. In contrasting land with public health, it will be necessary to disregard whatever constitutional recognition there may be that property in land is precisely like property in buildings or chattels, and also to use the term “legislature” broadly so as to include the people themselves when performing the supreme legislative function of making or amending constitutions, as well as the particular bodies to whom legislative power under our system is delegated. Doing that, the contents of George’s thesis on land may be described as follows, in terms suggested by the judicial rulings on public health: (1) The due regulation by law of the use of the land within the government’s jurisdiction is indispensable to the public welfare, for so only can the natural rights of all the people be secured. (2) Hence government cannot deprive itself or be deprived of the power to regulate the use of land at any time and in any manner that is adapted to secure to all the people their natural rights; i. e., such power cannot in any manner be suspended or abdicated or otherwise alienated. (3) Under the laws that at any time exist individuals may acquire property in land, which must be respected by their fellows, and such property, according to its nature, as determined by existing law, they may use or abuse, sell, donate, or devise, substantially as they please. (4) But no property in land can be acquired except subject to the limitation that it may at any time be qualified or destroyed at the will of the legislature, expressed in general laws applying to all the land within the jurisdiction. Observe as to these four propositions, that they contain no intimation as to the body to which, in the distribution of governmental powers, the regulation of the land is or should be committed; that is a separate question not necessary to be considered now. Observe also, that whether these