186 A. 923 | N.H. | 1894
REPORTER'S NOTE.
The opinion referred to is to be found in 191 Briefs Cases (N.H.) 181. Chief Justice Doe wrote it in 1896 while the case of State v. Griffin,
In some states, the growing evil of special legislation has been met by a constitutional amendment prohibiting it in cases for which provision can be made by general law, and requiring that laws of a general character be made by general law, and requiring that laws of a general character shall have a uniform operation throughout the state. Cooley Const. Lim. 152 n. 1, 129. In this state legal effect has been given to the general declarations of the bill of rights in which uniformity and equality are laid down as a rule of government, and such an amendment would be a mere enactment of our settled construction. *610
In 1827, the justices, answering a question proposed by the House of Representatives, expressed the opinion that "the legislature cannot authorize a guardian of minors, by a special act or resolve, to make a valid conveyance of the real estate of his wards." "Under our institutions all men are viewed as equal, entitled to enjoy equal privileges, and to be governed by equal laws. If it be fit and proper, that license should be given to one guardian, under particular circumstances, to sell the estate of his ward, it is fit and proper that all guardians should, under similar circumstances, have the same license. This is the very genius and spirit of our institutions. And we are of opinion, that an act of the legislature to authorize the sale of the land of a particular minor, by his guardian, cannot be easily reconciled with the spirit of the article in the bill of rights which we have just cited." Opinion of the Justices,
A lack of uniformity may result from the exercise of limited powers of local government granted to towns and cities. Cooley Const. Lim. 207, 223-231, 281, 282; State v. Hayes,
This would not be a state of law in the sense explained by Blackstone, and by the reservations of the bill of rights which limit and define the legislative power vested in the senate and house by the second article of the Constitution. Without uniformity there is no equality. Without equality there is no law in the constitutional sense in which the word "law" is used in this state. This sense has been so often declared here and so long and so vigorously maintained, that it cannot be considered an open question, except in a constitutional convention where a proposed revolution in the fundamentals of government can be properly discussed. There may be exceptional cases, and questions of the application of the principle of a degree of uniformity indispensable to equal rights; but the general rule as a principle of state legislation must be regarded as settled.
The common law is uniform. A right to make a reasonable use of brooks and rivers is part of the land title of all riparian proprietors. The tributaries of Lake Massabesic are not an exception. The defendant, as assignee of a lease of a mill privilege on a brook that flows into the lake, has the rights of a riparian proprietor. A right to make a reasonable use of the brook, during his term, is part of his interest in the land. At common law, between him and persons *612
exercising their right to a reasonable use of the lake, or of the stream flowing from the lake, the question whether his throwing saw dust into the brook was a reasonable use of the brook is a judicial question of fact. Hayes v. Waldron,
The defendant's land title includes a right to a reasonable use of the brook that carries his mill; and if he has been deprived of his common law right to a judicial determination of that part of his title, *613 he has lost it by the act of 1891 (c. 26). The act of 1885, c. 90 made it a criminal offence to place any substance in any lake or pond, or stream tributary thereto, from which the water supply of any city, town or village is taken for domestic purposes, that may cause the water thereof to become impure or unfit for the uses for which it is intended. This was a general law, and it is the law now (see 1895, c. 76) for all waters, except Massabesic and its tributaries and for all persons except riparian owners on that lake and its tributaries. With that exception it operates uniformly and maintains equality of right throughout the state, and leaves the judicial question of the effect of saw dust and other substances for trial as at common law. It throws the cost of prosecution on the counties, and adds criminal penalties to the common law means of maintaining the riparian right to pure water. There was a desire in Manchester to avoid the necessity of proving the injurious effect of saw dust in the water used by the city. For some reason that particular substance was selected as on in relation to which the question of reasonable use was to be transferred from the judicial to the legislative jurisdiction. It might be supposed that a privy over a tributary of Massabesic, or a pig sty on the bank, would be a clear case of unreasonable use. It may have been considered improbably that any defendant would demand a trial of the question of the reasonableness of such uses. A legislative decree may have been desired only in those cases in which defendants would be likely to insist upon their constitutional right to a judicial trial.
Not only were one substance and one use selected and condemned as unreasonable without trial, but one body of water was selected, and the proprietors on its tributaries were subjected to a special disability from which all other riparian owners in the state in the same situation are exempt. No others are deprived of the right to a judicial trial of the question of reasonable use. It is not material whether such discriminations can be accomplished by the exercise and non-exercise of public power delegated by the state to local self government are exceptional. They stand apart by themselves, in no way connected with, and in no way sustaining, unequal rights under general law. If another exception can be grounded on necessity, it is immaterial in this case. Here was no necessity for special legislation limited in its operation to one locality. In the first place, no statute was necessary to maintain the right of Manchester to pure water from the outlet of Massabesic. The common law is ample for *614
that purpose. In the second place, if the water supply of Manchester needs a saw dust law, the water supplies of towns in the same situation need the same law. If an infusion of saw dust is unwholesome for the people of Manchester, it is unwholesome for other people. If legislation on this subject can be special and local, there is no subject, on which it must be general and uniform. If Massabesic can be selected by a state law for protection unknown elsewhere, the well of a Massabesic farmer can be protected by a penal enactment applicable to no other well. In State v. Buckman,
A state law selecting a person or class or municipal collection of persons for favors and privileges withheld from others in the same situation, and selecting one or more riparian proprietors on one pond and its tributaries for deprivation of the right of a trial of question of fact involving a part of their land title, and leaving that right undisturbed in all proprietors in the same situation is at war with a principle which this court is not authorized to surrender.
Uniformity and equality of rights are necessary for the safety of every citizen. It would be comparatively easy to invade the rights of a feeble person, a feeble party, or a feeble sect, if uniformity and equality were not an element of law in the legal sense. In 1859, a Maryland act provided that "no Black Republican or endorser or supporter of the Helper Book, shall be appointed to any office" under the board of police. The court declined to express an opinion on the *615
validity of the act on the ground that they could not understand officially who were meant by Black Republicans. Baltimore v. State,
If the power of discrimination can be exercised by special laws, no on knows how soon he and his neighbors may become the victims. Without equality nothing is secure. The settled constitutional right of equal privileges and equal protection under general law rests on incontestable grounds of wisdom and necessity. The equal protection of the laws recently inserted in the federal constitution has been a New Hampshire doctrine 110 years; and it has been maintained here in a breadth of meaning and a scope of practical operation unknown elsewhere. The New Hampshire view is more nearly expressed in the dissenting opinions in the slaughter house cases, 16 Wall. 36, than in the opinion of the majority. Fertilizing Co. v. Hyde Park,
In Rice v. Parkman,
Following the doctrine of Rice v. Parkman, it is held that the legislature, by special act, can authorize the sale of particular piece of trust property.
One of the two classes of physicians, differing only in respect to residence, cannot be subjected to the expense of obtaining a license from which the other is exempt. State v. Pennoyer,
Complaints quashed.
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