Fashions in the Law. other private rights;1 even counties, which are mere political subdivisions of a State, created for local governmental purposes, ac quired rights above the control of the sove reign which had created them.2 In the face of modern progress and activity, municipal institutions thus stood still, incrusted and congealed, and covered with the mold and fungus of antiquity. But worse than all, the sovereign power of taxation-—-the very right and power of the State to exist, surrendered to private corporations through the bribery and cor ruption of the temporary tenants of legisla tive power — was lost to the State forever and placed utterly beyond recall. Finally the people, not the lawyers, took alarm, and the mutterings of discontent became so loud that a corrective of the Dartmouth College decision was sought for and found in a new doctrine, that of the police power, which loomed up on the horizon and " like a comet blazed." It was a most conveni ent doctrine; for, from its nature, it could not be defined or accurately measured, but it rested in the judicial process of inclu sion and exclusion. It could be appealed 1 Grogan z>. San Francisco, 18 Cal. 590, 613; People
- Ilurlbut, 24 Mich. 44, 104; s. c. 9 Am. Rep. 103, 112;
State v. Foley, 30 Minn. 350, 357; Re Malone's Estate, 21 S. Car. 435, 449 (holding that a legislative grant of es cheated property of the city of Charleston for the benefit of its orphan house, cannot be resumed by the State, even by a constitutional ordinance); Brownville v. Basse, 36 Tex. 461, 501 (holding thata grant of land by the State to a municipal corporation created by it could not be repealed); Milwaukee Town v. Milwaukee City, 12 Wis. 93, 103, 105, 108 (holding that the legislature cannot annex a portion of the land of one town to another); White v. Fuller, 38 Vt. 193; Montpelier v. East Montpelier, 29 Vt. 12, 19; s. c. 67 Am. Dec. 748, 751; Montpelier v. Fast Montpelier, 27 Vt. 704, 710; Woodfork -•. Union Bank, 3 Coldw. (Tenn.) 48S, 499; Pearson v. State, 56 Ark. 148, 152; s. c. 35 Am. St. Rep. 91, 92, 93; Louisville v. University of Louisville, 15 B. Monr. (Ivy.) 642, 674. See also Terrett v. Taylor, 9 Cranch U. S. 43, 52. Read the dissenting opinions of Kuskirk and Petitt, ]]., in Lucas v. Tippecanoe, 40 Ind. 524. 525- State;.. Foley, 30 Minn. 350; Richland County v. Lawrence County, 12 Ill. I; Milan County v. Bateman, 54 Tex. 153; Galveston County v. Tankersley, 39 Tex. 651, 657.
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to to the end of suppressing the doc trine of the Dartmouth College case where the judge might think the suppression of that doctrine necessary to the purposes of justice; and in its turn could be minimized or suppressed whenever the judge might think otherwise. The use of it enabled a State to repeal a lottery franchise which it had granted; l a franchise to render, at a particular place the carcasses of dead ani mals could be vacated whenever the stench became too strong;2 any other franchise granted by the State could be resumed in the exercise of its power of eminent domain;3 but the sovereign power of taxation, once wheedled out of the representatives of the people, was gone throughout the endless cycles of eternity; — decisions of the same court, which taken together, might move the laughter of the gods. In short, the new doctrine of the police power was a doctrine which, like a pair of breeches or a politician's conscience, could be held up or let down for any convenient purpose. And so it is that our venerable friend, the Dart mouth College decision, has gone out of fashion. Not even " John Marshall's day" will serve to revive or to rehabilitate it, though there will be a great cackle among the attorneys of the corporations and mono polistic trusts to that end. In spite of all this, — "Its shadow fades away into Destruction's mass. Which gathers shadow, substance, life, and all That we inherit, in its mortal shroud." The so-called doctrine of ultra vires was a "fashion in the law," and had a great run for a time. It blossomed out in the Eng lish courts at a time when nearly every judge was a stockholder in some railroad company, and when, although the company in which he was a stockholder may not have been a party to a particular case, yet 1 Douglas v. Kentucky, 168 U. S. 488, 500; Mississippi, 101 U. S. S14, 820. 2 Fertilizing Co. v. Hyde Park, 97 U. S. 659. 'Greenwood t'. Freight Co. 105 U. S. 13, 22.
Stone;..
