I concur. I am satisfied that the legislative enactments and city ordinance in question were enacted within the proper exercise of the police power and are not violative of any provision of the state or federal Constitution. These do not prohibit all and every use of the land of appellants nor of the land within 300 feet of the stream nor prevent the grazing of such lands by goats or other animals where the proper precautions are taken to prevent pollution of the waters of the stream. The decree of the court goes further and is broader in its scope than the statutes and ordinances and enjoins all use by means of grazing by animals of the lands within 300 feet of the creek. The opinion of the court therefore rightly sustains that portion of the decree which is in harmony with the statutes and ordinances and strikes down that part which goes beyond. It is the decree and not the statutes or ordinances which come in conflict with the rights of appellants referred to in the main opinion. Such a use of the premises or befouling the waters of Stone creek as are condemned by Comp. Laws Utah 1917, § 8184, as amended by chapter 3, Laws Utah 1927, are forbidden and enjoined by the decree. The city ordinance of Bountiful City prohibits the watering of animals directly from the stream as well as the permitting of animals to remain in or near or to pollute any such stream. This language has been construed by Mr. Justice Frick in Salt LakeCity v. Young, 45 Utah 349, 145 P. 1047, 1050, Ann. Cas. 1917D, 1085, and need not be repeated here. The decree as affirmed enjoins such conduct by appellants. The ordinance also prohibits any loose animals to run at large within 300 feet of the stream. This, however, does not mean that the land may not be used at all for grazing within such area. If the animals are herded or controlled in such manner that they may not get into the water or deposit their feces in or so near the stream as to pollute the waters or be washed by natural causes into the stream, there is no restriction in the ordinance upon such use. The phrase "running at *Page 130 large" as applied to animals means strolling about without restraint or confinement, roving or rambling at will. 1 Words and Phrases, First Series, p. 605. It is the uncontrolled and unrestrained roving of animals within a 300-foot area which is denounced by the ordinance. There is a reasonable use of the lands within this area which is not prohibited by ordinance and will not be enjoined by the decree directed to be entered by this court. I use the words "reasonable use" in the sense as defined by Mr. Justice Frick in Salt Lake City v. Young, supra:
"Therefore, whenever in this opinion I refer to a `reasonable use,' I refer to one which is not of itself a nuisance or which does not unnecessarily and appreciably pollute the waters of a stream. Further, that if in using property a stream is necessarily polluted and such pollution can be avoided without destroying the owner's ability to use the property, he must take reasonable steps and precautions to avoid such pollution, and, if he willfully or negligently fails to do so, he may be punished for his acts. Any use which results in an appreciable pollution which is preventable by incurring reasonable expense or making reasonable effort cannot be deemed a reasonable use for the purpose of withstanding the enforcement of a police regulation which is intended to protect the public health."
I am, however, unable to agree wholly with what is said in the main opinion as to limitations upon the exercise of the police power. This power depends upon, and is limited by, its relation to the health, safety, morals, and general welfare of the public, and may go so far under certain conditions as to entirely deprive the owner of a specified use of his property where such use is inimical to the health and welfare of the public, and such power, by its rightful exercise, is not limited because burdensome to individual property owners nor by the fact that the use now prohibited has heretofore been a lawful and proper use. There is a limitation upon the power that it cannot be exerted arbitrarily or with unjust discrimination. In this case the property is not in fact by the ordinance taken for public use without compensation. Its use, however, by the owner, is limited so that the public health may not be impaired by *Page 131 the acts specified in the regulation. The distinction between the application of the police power and that of eminent domain to private property is clearly stated by Mr. Justice Harlan inMugler v. Kansas, 123 U.S. 623, 8 S. Ct. 273, 301,31 L. Ed. 205, as follows:
"As already stated, the present case must be governed by principles that do not involve the power of eminent domain, in the exercise of which property may not be taken for public use without compensation. A prohibition simply upon the use of property for purposes that are declared, by valid legislation, to be injurious to the health, morals, or safety of the community, cannot, in any just sense, be deemed a taking or an appropriation of property for the public benefit. Such legislation does not disturb the owner in the control or use of his property for lawful purposes, nor restrict his right to dispose of it, but is only a declaration by the state that its use by any one, for certain forbidden purposes, is prejudicial to the public interests. Nor can legislation of that character come within the fourteenth amendment, in any case, unless is is apparent that its real object is not to protect the community, or to promote the general well-being, but, under the guise of police regulation, to deprive the owner of his liberty and property, without due process of law. The power which the states have of prohibiting such use by individuals of their property, as will be prejudicial to the health, the morals, or the safety of the public, is not, and, consistently with the existence and safety of organized society, cannot be, burdened with the condition that the state must compensate such individual owners for pecuniary losses they may sustain, by reason of their not being permitted, by a noxious use of their property, to inflict injury upon the community. The exercise of the police power by the destruction of property which is itself a public nuisance, or the prohibition of its use in a particular way, whereby its value becomes depreciated, is very different from taking property for public use, or from depriving a person of his property without due process of law. In the one case, a nuisance only is abated; in the other, unoffending property is taken away from an innocent owner."
Legislation such as we are here dealing with is not objectionable because in some instances it may restrain the profitable use of private property when such use does not directly injure the public in health or comfort. Such measures are designed to be preventative and to be effective must be able to restrain acts which tend to produce public injury. One of the most obvious concerns of the state is *Page 132 the health of its individual members. The pollution of the sources of a public water supply is extremely dangerous to the health and welfare of any community, and the Legislature may, in the exercise of the police power, restrain a use of private property which has a reasonable tendency to cause such pollution, and, to be valid, the measures thus taken need not actually wait and reach pollution only after it has in fact occurred. State v. Wheeler, 44 N.J.L. 88.
To sustain legislation under the police power, the courts must be able to see that its operation bears a reasonable relation to the public purpose sought to be accomplished. The Legislature has a large discretion, which, if exercised bona fide, for the protection of the public and the means employed have a real and substantial relation to the purpose intended, is beyond the reach of judicial inquiry, and, as stated by Mr. Justice Stone in the recent case of Standard Oil Co. v. Marysville, 279 U.S. 582,49 S. Ct. 430, 73 L. Ed. 856:
"We need not labor the point, long settled, that, where legislative action is within the scope of the police power, fairly debatable questions as to its reasonableness, wisdom, and propriety are not for the determination of courts, but for that of the legislative body on which rests the duty and responsibility of decision." (Citing many cases.)
The scope of the police power has been well stated by Mr. Justice Powers in State v. Quattropani, 99 Vt. 360,133 A. 352, 353, as follows:
"The police power in its broadest significance is but another name for sovereignty itself. In re Guerra, 94 Vt. 1,110 A. 224, 10 A.L.R. 1560. In its narrower sense, as here exercised, it signifies the governmental power of conserving and safeguarding the public safety, health, and welfare. In this sense, it covers a very wide field of operation. All contracts entered into, all charters granted, all rights possessed, and all property held, are subject to its proper exercise, and must submit to its valid regulations and restrictions. Waterbury v. Central Vt. Ry.Co., 93 Vt. 461, 108 A. 423; State v. Speyer, 67 Vt. 502,32 A. 476, 29 L.R.A. 573, 48 Am. St. Rep. 832; State v. Morse, supra [84 Vt. 387, 80 A. 189, 34 L.R.A. (N.S.) 190, Ann. Cas. 1913B, 218]. Its scope, however, is not unlimited and the validity of any mandate promulgated under it is for judicial determination. *Page 133 State v. Morse, supra; State v. Haskell, 84 Vt. 429,79 A. 852, 34 L.R.A. (N.S.) 286. The necessity and propriety of the mandate are for the Legislature or its delegate; its character whether valid or otherwise, is for the court. State v.Speyer, supra. This order is presumptively valid (State v. Morse, supra), and it must be enforced unless it is made manifest that it has no just relation to public health protection, or that it is a plain palpable invasion of constitutional rights, Boardof Health v. St. Johnsbury, 82 Vt. 276, 73 A. 581, 23 L.R.A. (N.S.) 766, 18 Ann. Cas. 496; Purity Extract T. Co. v.Lynch, 226 U.S. 192, 33 S. Ct. 44, 57 L. Ed. 184. If either of these infirmities appear, it is our duty to declare its invalidity."
The legislation by statute and by the city ordinance questioned in the instant case bears a direct and substantial relation to the public health and welfare, and there is not such a plain and palpable invasion of constitutional rights as would justify us in saying that such regulation or restriction is invalid.