1882, caused stakes to be driven in Thunder bay, commencing about a mile east of Sulphur island, and thence continued eastward for a distance of about 160 rods, for the purpose of affixing thereto trap-nets for fishing. The depth of water where the stake nearest the island was driven was 26 or 27 feet, and where those were driven the furthest from the island the depth of water was 36 or 37 feet. The defendant also proceeded to drive stakes near those driven by the plaintiff, and notified the plaintiff to take up and remove those placed there by him, but he refused, and the defendant pulled them up, and they floated away and were lost. The plaintiff brought trespass and recovered. There are two questions presented by this record. (1) Is the owner of land bounded by the waters of the great lakes, like Lake Huron, entitled to the rights ofa riparian proprietor in front of his lands to the cen ter of the lake? (2) If so, do such rights confer upon such riparian proprietor the exclusive right of fishing in the waters in front of his land by means of stakes or other attachments to the soil under water? The plaintiff bases his right of recovery upon the public right of fishing in the great lakes. By the common law all persons have a common and general right of fishing in the sea, and in all other navigable or tide waters; and no one can maintain an exclusive privilege to any part of such waters, unless he has acquired it by grant or prescription. In the case of Carter v. Murcot, 4 Burr. 2162, it was declared that in rivers not navigable-that is, in rivers not affected by the tides-land-owners had the right of fishing on each side, commonly, to the middle of the stream, and in navigable tide-water rivers the right was prima facie in the king, and was public, but a private person may have an exclusive right by grant or prescription. The decisions in England have been uniformly to the effect that the owner of land bordering on streams not affected by the flow and reflow of the tides, whether in fact navigable or not, has the exclusive right of fishing in front of his land to the middle of the stream. The later cases are fully as strong as the earlier. In the case of Malcomson v. O'Dea, 10 H. L. Cas. 618, the court said: "The soil of navigable tidal rivers, like the Shannon, so far as the tide flows and reflows, is prima facie in the crown, and the right of fishing prima facie in the public. But for the Magna Charta the crown could by its prerogative exclude the public from such prima facie right, and grant the exclusive right of fishing to a private individual, either together with or distinct from the soil. And the great charter left untouched all fisheries which were made several, to the exclusion of the public, by act of the crown not later than Henry II." In Murphy v. Ryan, 2 Ir. R. C. L. 143, it was held that the public could not acquire, by immemorial usage, any right of fishing in a river in which, though navigable, the tide did not ebb and flow; and to the same effect is Hargreaves v. Diddams, L. R., 10 Q. B. 582. In Johnston v. Bloomfield, 8 Ir. R. C. L. 68 (Exch. Cham.), it was held that the public has not, of common right, a common of fishery in large inland waters in which the tide does not flow and reflow, although they are navigable. A case decided in the House of Lords in 1878, and cited as Bristow v. Cormican, 3 App. Cas. 641, was where the plaintiff brought trespass against the defendant to establish a right to a several fishery in Lough Neagh. Defendant alleged that the several fishery and the lands covered with water were, and from time immemorial had been, part of an inland sea, called Lough Neagh, and that said inland sea had been a common or public navigable inland sea, and that in the part thereof mentioned, every subject of the realm had, and of right ought to have, the right and privilege of fishing, and that in the exercise of that right he committed the trespass complained of. The plaintiff claimed the right to fish through a royal grant from Charles II, in 1660, and another in 1661 of the right to fish in Lough Neagh. No evidence had been given of forfeiture, or escheat, or other source of title in the king. Lord Cairns said: "The crown has no de fure right to soil or fisheries of a lough like Lough Neagh." He then proceeds to describe Lough Neagh as "the longest inland lake in the United Kingdom, and one of the largest in Europe. It is from 14 to 16 miles long, and from 6 to 8 miles broad. It contains nearly 100,000 acres; but though it is so large, I am not aware of any rule which would prima facie connect the soil or fishings with the crown, or disconnect them from the private ownership either of riparian proprietors or oth persons." And Lord Blackburn said: "The property in the soil of the sea, and of estuaries, and of rivers in which the tide ebbs and flows, is prima facie of common right vested in the crown. It is clearly and uniformly laid down in our books, that where the soil is covered by the water forming a river in which the tide does not flow, the soil does of common right belong to the owners of the adjoining land, and there is no case or book of authority to show that the crown is of common right entitled to land covered by water where the water is not running water forming a river, but still water forming a lake. * I own myself to be unable to see any reason why the law should not be the same at least where the lake is so small or the adjoining manor so large that the whole lake is included in one property. Whether the rule that each adjoining proprietor, where there are several, is entitled usque ad filum aquæ, should apply to a lake is a different question. It does not seem very convenient that each proprietor of a few acres fronting on Lough Neagh should have a piece of the soil of the lough many miles in length tacked onto his frontage. But no question arises in this case as to the rights of the riparian proprietors among themselves, for no title is made by either party through any one as riparian owner. It is however necessary to decide whether the crown has of common right prima facie title to the soil of a lake. I think it has not. * * It is evident from the foregoing citations that the question in England as to riparian proprietorship in the soil under lakes had not been judicially settled as late as the year 1878. The holding that the crown does not of common right prima facie own the title to the soil under the waters of an inland lake leads necessarily to the other conclusion, that such soil belongs to the riparian proprietor But the case can form no guide with reference to riparian ownership upon the great inland seas bordering this State. Lough Neagh, the largest in the United Kingdom, is too small to be the subject of any comparison with Lake Huron, with the object of ascertaining by any analogy whether the rules or principles of riparian ownership applied to one should govern the other. It was the theory of monarchical governments that the king was lord of the sea, and the owner of the soil while it was covered with water. 2 Bl. Comm. 262. This is a reasonable doctrine, and founded in good sense. It would be absurd to suppose that any private person could appropriate to his own exclusive use either the waters of the sea or the soil beneath it. The public right of navigation and fishing in such waters should not be rendered subservient to private occupancy. Title by occupancy presumes a grant. There must be an owner capable of granting before a grant can be made. If there be no owner there can be no grant, and no title by prescription. And so the com mon law regarded the sovereign as owner, and as holding the title in trust for the public use of navigation and fishing, and such uses as should subserve the general welfare. The same reasons which existed during the origin and growth of the common law to deny the right of riparian proprietorship in the bed of the sea forbid such private proprietorship in the owner of land bordering on the great lakes. "All titles in this State are supposed to have been granted or originally recognized and confirmed by the United States or by this State." Gamble v. Horr, 40 Mich. 564. That is from the sovereigu power. Before the admission of this State the United States, as sovereign, had political jurisdiction of the whole area, including the navigable waters of the great lakes, and when the State was admitted to the Union this political jurisdiction devolved upon the State, and the title to the soil under the navigable waters of the great lakes became vested in the State as sovereign to the same extent and for the same reasons that the title of the bed of the sea was vested in the king. If the defendant has any title to the land under the waters of that portion of Lake Huron known as Thunder bay, he must have derived it either by a grant from the United States or from the State of Michigan. He claims it by grant from the United States, and in virtue of this riparian proprietorship in Sulphur island and that as a concomitant of this interest in the soil he has the exclusive right of fishery in the waters of the bay in front of the island, at least so far as the driving of stakes in the soil and the use of trap-nets is concerned. What then are the boundaries of the grant made by the United States government of the land on Sulphur island? I have no hesitation in saying that they are limited by low-water mark. I think the true principle is laid down in the following cases: Canal Com's v. People, 5 Wend. 423; Champlin R. Co. v. Valentine, 19 Barb. 484; Fletcher v. Phelps, 28 Vt. 57; Jakeway v. Bassett, 38 id. 316; Austin v. Rutland R. Co., 45 id. 215; Seaman v. Smith, 24 Ill. 521. In State v. Gilmanton, 9 N. H. 461, Parker, C. J., said: "Where a grant is made extending to a river and bounding upon it, the center of the stream is the line of the boundary, if there is no limitation of the terms of the grant itself; but in relation to grants bounding on ponds, lakes, or other large bodies of standing fresh water that principle does not apply, but the grant extends only to the water's edge.' See also 3 Kent Comm. 429, and note b.; Gould Waters, § 203, and cases in note 3; Ang. Water-courses, §§ 41, 42. Such also is the construction placed upon grants of the United States by the United States Supreme Court. Barney v. Keokuk, 94 U. S. 324; Railroad Co. v. Schurmeir, 7 Wall. 272. In England, where the common law had its origin, there were no great inland seas such as our great lakes, and consequently no precedent can be found in the jurisprudence of that country which determines the applicability of the common-law doctrine of riparian rights to the question under consideration. Lake Huron is estimated to contain 20,000 square miles, while the Irish sea is computed at less than 15,000. Lake Michigan contains more than twice, and Lake Superior about four times the number of square miles contained in the Irish sea. If we look for analogies they will be found to consist in the resemplauce of the great lakes to the seas which surround that country, and would seem to call for the application of the same principles as to boundaries which were applied to lands bordering on those seas, with this difference: as there is no periodical ebb and flow of tide in these waters the limit should be at low instead of at high water mark. The paramount rights of the public to be preserved are those of navigation and fishing, and this is best accomplished by limiting the grants of lands bordering on the great lakes to low-water mark. It does not follow however that the owner of lands thus bounded has no rights to the use of the water or the soil beneath it. It is well settled in this country that where the law is that the owner is limited by either high or low water mark he has the right to construct warehouses, wharves or piers in the water in front of his land, in aid of and not obstructing navigation. Railroad Co. v. Schurmeier, 7 Wall. 272; Yates v. Milwaukee, 10 id. 497; Providence Steam Engine Co. v. Providence, etc., Steamship Co., 12 R. I. 348; Coburn v. Ames, 52 Cal. 385; Mather v. Chapman, 40 Coun. 382; Drury v. Midland R. Co., 127 Mass. 571; Boston v. Richardson, 105 Mass. 351; Lakeman v. Burnham, 7 Gray, 437; State v. Sargent, 45 Conn. 358; Moulton v. Libbey, 37 Me. 472; Clement v. Burns, 43 N. H. 609. In some States this this right is said not to exist without legislative authority. Tinicum Fishing Co. v. Carter, 61 Penn. St. 21; Garitee v. Baltimore, 53 Md. 432; Alden v. Pinney, 12 Fla. 348; Norfolk City v. Cooke, 27 Grat. 430; Rice v. Ruddiman, 10 Mich. 125. The defendant claims that the decisions of this court have settled the question of riparian ownership to lands bordering upon the navigable waters of this State, and that by such decisions his rights as such owner cover the locus in quo in this case; and he cites us to the following cases: Rice v. Ruddiman, 10 Mich. 125; Bay City Gas-light Co. v. Industrial Works, 28 id. 183; Pere Marquette Boom Co. v. Adams, 44 id. 404; S. C., 6 N. W. Rep. 857; Watson v. Peters, 26 Mich. 517; Lorman v. Benson, 8 id. 18. None of the foregoing cases involved the rights of riparian owners of land bounded by the waters of the great lakes. In the case of Rice v. Ruddiman, Lake Muskegon was treated by three of the judges as a widening of the Muskegon river, but the majority of the court based their decision upon the well-recognized principle that the owner of the shore had the right to make use of the shallow waters in front of his premises, by the construction of wharves, buildings, and other improvements, so long as the public servitude was not thereby impaired, and it was immaterial whether the particular place in controversy was a part of Lake Michigan or not. The case of Pere Marquette Boom Co. v. Adams was clearly the case of a river, although called Pere Marquette lake. This lake is formed by a widening of the waters of the river before they reach Lake Michigan, and no reason is apparent why the principles applicable to rivers should not govern the rights of riparian proprietors upon this so-called lake. The defendant calls attention to the case of Richardson v. Prentis, 48 Mich. 88; S. C., 11 N. W. Rep. 819, as deciding the very point in issue, and claims that it was there held that the owner of lands upon the shore of the Thunder bay does not own the soil under the water in front of his upland, and has the exclusive enjoyment of the usual riparian right appurtenant thereto, and he insists that the only question to be considered is the extent of those rights, and that subject to the right of navigation, there is no limit of distance from the shore, save only the central thread of the stream or center line of the lake, and that there is no limit at all to the depth of water in which he may exercise his right. If the position is correct that the owner of land bounding on Thunder bay has the same riparian rights that the owner of land bounded by a river or other stream has, then there can be no question as to his exclusive right to fish in the waters where plaintiff had attempted to, in this case, and that plaintiff was a trespasser, and defendant was justified in removing the stakes driven by plaintiff, for the law is well settled that riparian proprietors upon freshwater streams have the exclusive right of fishing in the water opposite their lands. Gould Waters, § 182, and cases cited in note 1; Ang. Water-courses, § 61; Hart v. Hill, 1 Whart. 124; Beckman v. Kreamer, 43 Ill. 447. The case of Richardson v. Prentis does not conflict with the views I have expressed. Although the case discusses the rights of riparian owners, and refers to them generally in the language of the authorities as extending ad medium filum aquæ, yet the case presented was whether a person, after selling to complainant land bounded by the waters of the lake, could go in front of complainant and appropriate the land under the water. The grantor had no more right to exercise exclusive dominion over the soil under the water in front of the lands of her grantee than an entire stranger; and it is clear upon all the authorities that complainant had certain riparian rights flowing from her, being the owner of the shore, which neither her grantor nor any other person could deprive her of without her consert. The question to be decided was whether the complainant's grantor, after selling the shore to complainant, had riparian rights in front of the lands sold which she could appropriate to her own private and exclusive use, and it was held that she had not, and that the complainant had a right to be protected against the unauthorized appropriation of such land which would deprive her of her access to the water. I have already cited numerous authorities to show that riparian rights exist on the banks of waters, whether navigable or not navigable, whether subject to ebb and flow of tide or not. The subject is fully discussed and authorities collated in Gould Waters, $$ 124, 140, 149. There is nothing in the previous decisions of the State which determines the defendant's exclusive right of fishing at the point stated in the declaration. I think that the waters of Thunder bay are public waters, and the right of fishing therein is a common right of all the citizens of this State, subject only to the paramount right of navigation, and is the subject of legislative control. Ang. Tide Waters, §§ 124, 21, 22; McCready v. Virginia, 94 U. S. 391; State v. Company, 49 N. H. 250; Sloan v. Biemiller, 34 Ohio St. 492: 3 Kent. Comm. 418. These fisheries are beginning to assume great commercial importance. The census reports for the year 1880 shows that the capital invested in the fisheries of this State was nearly half a million of dollars, employing 1,781 men, and the value of the product was nearly three-quarters of a million dollars. The State has already taken the subject under its control. There is a permanent board of fish commissioners, and laws have from time to time been passed regulating the time and manner of catching fish. How. St., ch. 63. Section 2172 of this chapter provides: "It shall be unlawful for any person or persons to put into any of the waters fronting or bordering land where fish are taken by the legal owner or occupant of such lands, any vessel or ship ballast, stone, sand, coal cinder, ashes, log slabs, decayed wood, bark, saw-dust, or obstruction or filth of any other description, or to piace or drive any pound-net, piles or stakes, or any other piles or stakes, or posts, or build any platforms or piers, or any species of seines, or continuous trapnets, to the extent of the breadth of such legal owner or occupant's lands so far as the channel banks of the rivers, and to one mile from the beach or shore, at low-water mark, of the lakes, straits, inlets, and bays on said waters fronting such owner or occupant's lands, and it shall subject any boat-owner, or captain of any vessel, to a fine of not exceeding fifty dollars, who shall willfully run into or molest any pound-net, trap, or other stationary nets or fixtures set in the lakes for fishing purposes." This statute protects the When a prisoner is discharged on habeas corpus from the cus tody of an officer holding him in arrest under a warrant issued by a justice of the peace, such officer is not entitled to exceptions; and if exceptions are allowed, they will be dismissed on motion in the Supreme Court. Ross, J., dissenting. The officer holding the relator was in no legal sense a party to the cause in which the relator was arrested, and had no right involved. That was a criminal cause prosecuted in the name of the State. The statute (Rev. Stat., § 1385) allowing exceptions has reference to civil cases only. The allowance of exceptions to the officer when a prisoner is discharged is inconsistent with the object of the writ of habeas corpus. In re Cooper, 32 Vt. 253, distinguished, the prisoner being the excepting party in that case. Ju UDGMENT that the relator be discharged; to which decision R. R. Mead, the constable of Rutland having the relator in custody, excepted. The case was heard ou a motion to dismiss the exceptions. W. C. Dunton and James Barrett, for Mead. Prout & Walker, for the relator. POWERS, J. The questions presented for considera tion arise upon the relator's motion to dismiss the exceptions filed in the cause. In the County Court the relator was discharged from the custody of Mead, the officer holding him in ar rest under the warrant issued by Justice Cain, and to this judgment of the County Court Mead filed exceptious. The relator now insists that Mead had no right to file exceptions to said judgment; and secondly that nobody can file them in a case where the relator is dis charged. By section 1385, Rev. L., "issues of law and questions of law, arising upon the trial of an issue of fact, by the court or jury, and placed upon the record by the agreement of the parties or the allowance of the court, determined by a County Court, may pass to the Supreme Court for final decision; but execution shall not of course be stayed, but may be stayed by order of the court on consideration of the difficulty and importance of the question." This section obviously relates to civil cases inter partes. The last paragraph, relating to a stay of execution, can have no appropriate meaning in any other view. Again, by section 1388, and later sections in the same chapter, providing for the allowance of exceptions by the presiding judge, it conclusively appears that section 1385 has reference to civil cases between party and party; and such has always been the understanding of our courts and bar. Mead, the officer holding the relator in custody, was in no legal sense a party to the cause in which the rela *To appear in 56 Vermont Reports, tor was arrested. That was a criminal cause prosecuted in the name of the State by an informer. If Mead could file exceptions to the order discharging the relator from custody, then every tipstaff lucky enough to hold a criminal warrant could trot his prisoner seeking liberty from court to court interminably, notwithstanding the wish of the prosecuting officers to end the proceedings. It was to remedy delays of this character that the Habeas Corpus Act of Charles II was enacted; and if the doctrine now contended for is to prevail we are compelled to go back in history two hundred years, and to embrace the principles of personal liberty as expounded by the Stuart kings. This act of May 26, 1679, did not create this writ; it merely swept away the subterfuges adopted to delay and make it ineffectual. It provided for a speedy deliverance of prisoners, and is a part of the common law of Vermont. The subsequent legislation in England, and the whole course of legislation and judicial exposition in Amer. ica, disclose the most jealous anxiety to make the writ❘ a quick and summary proceedure for relief from imprisonment. The inquiry in the County Court was whether the process under which the relator was held was valid. Mead had no personal interest in the custody of the relator, and no right involved in such inquiry. Shaw, C. J., in dismissing the exceptions, says: "The general principles of law are opposed to the allowance of exceptions in this case. The great purpose of the writ of habeas corpus is the immediate delivery of the party deprived of personal liberty. The allowance of exceptions would be inconsistent with the object of the writ. The consequence of allowing exceptions would be either that all further proceedings be stayed, which would be wholly inconsistent with the purpose of the writ; or that the exceptions must be held frivolous, and judgment rendered non obstante for the discharge of the party; in which case the exceptions would be unavailing. The allowance of exceptions being thus inconsistent with the very purpose of the writ, the conclusion must be that the exceptions do not lie." This case is cited to show the ground on which the proceedings rest, which is the same whether they are instituted before a judge at Chambers or in court. Shaw, C. J., further declares that the Massachusetts statute, which provides that "in any trial or other proceeding either of a civil or criminal nature, at law or in equity," before this court when held by one justice, may be reserved and reported for the consideration of the full court, applies to another class of cases. The reasoning of this case shows that exceptions would not lie had the case been pending in court instead of before a judge at Chambers. In Knowlton v. Baker, 72 Me. 202 (1881), this precise question arose in a case It is suggested that Mead should have the right to exceptions, as he may be liable for a false imprison-pending in the court. ment if the relator is discharged. This suggestion goes upon the ground that the judgment in the County Court would be conclusive upon him as an estoppel; but it is a fundamental doctrine that an estoppel must be mutual. If the judgment remanding the prisoner to his custody would bar a suit for false imprisonment it follows that one discharging him would ex vi termini fix his liability. This however is not the law. The warrant under which Mead holds the relator was issued by a court of competent jurisdiction, and is regular on its face. The fatality, if any existed in the case, is found in the proceedings antedating the warrant, and for which the officer is not answerable. Mead then had no right to the exceptions allowed in this case. There is however a broader doctrine applicable to the case which calls for exposition. Allusion has already been made to the office of the writ of habeas corpus. It is a common-law writ; but the Legislature of this and other States has regulated the procedure under it. The court or judge to whom application is made must issue the writ without delay, and on its return must examine the cause of imprisonment without delay; and may, in a summary way, hear the evidence pro and con relating to the imprisonment. The writ may be issued by the Supreme Court in session, or a judge thereof in vacation, or the County Court in session; and the hearing is the same before either tribunal. If the prisoner is remanded to custody by either he may apply to the other. Indeed, as Baron Parke says, in Ex parte Partington, 13 M. & W. 678, he may renew his application to every court in the kingdom having jurisdiction until he obtains his liberty. It is not a controversy between parties, but an inquisition by the government at the instance of the prisoner to determine whether the right of personal liberty has been invaded. If controverted matters between individuals arise in the course of the inquiry, they arise only collaterally. Hurd on Habeas Corpus, 152. In this view of the purposes of the writ, it is clear that it is not a proceeding in which exceptions will lie to a judgment discharging the relator from custody; and so are the authorities. Wyeth v. Richardson, 10 Gray, 240 (1857), was habeas corpus before a single judge at chambers. On hearing, the relator was discharged; and exceptions were filed. Walton, J., says: Exceptions do not lie to the discharge of a prisoner on habeas corpus. The object of the writ is to secure the right of personal liberty; and this can only be accomplished by prompt action and a speedy trial. To allow exceptions to the order of the court in term time, or to the order of a judge in vacation, discharging a prisoner, would necessarily result in considerable delay, and thus defeat one of the principal purposes of the writ, namely, a speedy release. True, errors may result from such hasty action, and parties interested in the imprisonment of the person released may thereby suffer. But the history of the writ shows that greater evils are liable to result from the want of speedy action." The statutes of Massachusetts and Maine relating to the allowance of exceptions are in substance like ours. In the Federal courts the same doctrine prevails, although those courts have no common-law jurisdiction. Am. Law Rev., vol. 18, No. 1. And it is the rule in all the States except as changed by statute. In State v. Everett, Dudley Law Rep. (S. C.), 295, appealed by the attorney-general, the court say: "No decision that can be made by this court will recapture the defendant and bring him to justice." The prisoner had been discharged by the lower court, and the court very forcibly express the futility of their revisory power over that judgment. Vide remarks of Shaw, C. J., supra. The case of Ex parte Cooper, 32 Vt. 353, is claimed to be in conflict with this doctrine, and seems to give color to the claim. But it is to be noticed that the exceptions in Cooper's case were taken by the relator, and the court remark that "justice to the person imprisoned requires that he should have the opportunity of having the decision of the County Court revised, when the decision remands him to jail, and the question involved is one merely of law." The court clearly recognize the doctrine advanced by Baron Parke, supra, that the doors of another court should be open to a relator if the lower court refuse to release him. If the exceptions in Cooper's case had been filed by the State, or the sheriff having them in custody, we cannot believe in the light of authority or principle that they would have been sustained. There, as here, the commitment of the relator was in a crim inal proceeding; and there is under our statute (not referred to however in Cooper's case), a propriety in sustaining the exceptions taken by the relator. No case decided upon the principles of the common law can be found, we think, which warrants the allowance of exceptions in cases where the relator has been discharged; and accordingly the exceptions are Ross, J., dissents. Dismissed. WHEN EXERCISE OF POLICE POWER CANNOT SUPREME COURT OF THE UNITED STATES, SLAUGHTER HOUSE Co. v. SLAUGHTER HOUSE Co. A legislature, in regard to matters affecting the public health and public morals, the preservation of which is so necessary to the best interests of social organization, that a wise policy forbids the legislative body to divest itself of the power to enact laws for the preservation of health and the repression of crime, cannot by contract limit the exercise of its police power, but such a contract is subject to modification or repeal by future legislatures, or even the granting body. By an act of the General Assembly of Louisiana, approved In the year 1879 the State of Louisiana adopted a new Con- A PPEAL from the Circuit Court of the United States for the Eastern District of Louisiana. B. R. Forman, for appellant. Thomas T. Semmes, for appellee. MILLER, J. This is an appeal from the Circuit Court for the Eastern District of Louisiana. The appellee brought a suit in the Circuit Court to obtain an injunction against the appellant forbidding the latter from exercising the business of butchering or receiving and handling live stock intended for butchering within certain limits in the parishes of Orleans, Jefferson and St. Bernard, and obtained such injunction by a final decree in that court. The ground on which this suit was brought and sustained is that the plaintiffs had the exclusive right to have all such stock landed at their stock-landing place and butchered at their slaughter-house by virtue of an act of the General Assembly of Louisiana, approved March 8, 1869, entitled "An act to protect the health of the city of New Orleans, to locate the stock-landing and slaughter-houses, and to incorporate the Crescent City Live-Stock Landing and Slaughter House Company." An examination of that statute, especially of its fourth and fifth sections, leaves no doubt that it did grant such an exclusive right. The fact that it did so and that this was conceded was the basis of the contest in this court in the Slaughter-House Cases, 16 Wall. 36, in which the law was assailed as a monopoly forbidden by the thirteenth and fourteenth amendments to the Constitution of the United States, and these amendments, as well as the fifteenth, came for the first time before this court for construction. The constitutional power of the State to enact the statute was upheld by this court. This power was placed by the court in that case expressly on the ground that it was the exercise of the police power which had remained with the States in the formation of the original Constitution of the United States, and had not been taken away by the amendments adopted since. Citing the definition of this power from Chancellor Kent, it declares that the statute in question came within it. "Unwholesome trades, slaughter-houses, operations offensive to the senses, the deposit of powder, the application of steam power to propel cars, the building with combustible materials, and the burial of the dead may all (he says) be interdicted by law in the midst of dense masses of population, on the general and rational principle that every person ought so to use the property as not to injure his neighbors; and that private interests must be made subservient to the general interest of the community." 2 Kent Com. 340; 16 Wall. 62. In this latter case it was added that "the regulation of the place and manner of conducting the slaughtering of auimals, and the business of butchering within a city, and the inspection of the animals to be killed for meat, and of the meat afterward, are among the most necessary and frequent exercises of this power." But in the year 1879 the State of Louisiana adopted a new Constitution, in which were the following articles: "Article 248. The police juries of the several parishes, and the constituted authorities of all incorporated municipalities of the State, shall alone have the power of regulating the slaughtering of cattle and other live stock within their respective limits; provided no monopoly or exclusive privilege shall exist in this State, nor such business be restricted to the land or houses of any individual or corporation, provided the ordinances desiguating places for slaughtering shall obtain the concurrent approval of the board of health or other sanitary organization." "Article 258. * * * The monopoly features in the charter of any corporation now existing in the State, save such as may be contained in the charters of railroad companies, are hereby abolished." Under the authority of these articles of the Consti tution the municipal authorities of the city of New Orleans enacted ordinances which opened to general competition the right to build slaughter-houses, establish stock-landings, and engage in the business of butchering in that city under regulations established by those ordinances, but which were in utter disregard of the monopoly granted to the Crescent City Company, and which in effect repealed the exclusive grant made to that company by the act of 1869. The appellant here, the Butchers' Union SlaughterHouse Company, availing themselves of this repeal, entered upon the business, or were about to do so, by establishing their slaughter-house and stock-landing within the limits of the grant of the act of 1869 to the Crescent City Company. Both of these corporations, organized under the laws of Louisiana, and doing business in that State, were citizens of the same State, and could not, in respect of that citizenship, sue each other in a court of the United States. The Crescent City Company however, on the allegation that these constitutional provisions of 1879 and the subsequent ordinances of the city, were a violation of their contract with the State under the act of 1869, brought this suit in the Circuit Court as arising under the Constitution of the United States, art. 1, § 10. That court sustained the view of the plaintiff below, and held that the act of 1869 and the acceptance of it by the Crescent City Company, constituted a contract |