I concur in a reversal of the judgment on the ground first stated in the opinion of my brother Campbell. The statute does not authorize the company to purchase at its own sale.
As this disposes of the case I should prefer to say *150nothing on the constitutional question. But as my brother Campbell has given an opinion concurred in by my brother Christiancy and the Chief Justice, holding that part of ■ the statute unconstitutional which for all practical purposes gives vitality and life to companies organized under the act, in which I can not concur, I feel bound to state my reasons for differing with them on so important a question.
It is important in the investigation of all questions, if we would arrive at the truth, to occupy a stand point from which every part of the ease may be seen, and appreciated.
State constitutions (it is different with the Federal Constitution, which in some respects resembles our State constitutions and in others not) are a limitation on, and not a grant of legislative powers. Hence, when the constitutionality of a statute is called in question, we look to the Constitution not for the power of the Legislature but for its negation. The question is, have the people by their Constitution withheld the power from the Legislature? This is the only question. Want of power is not to be presumed. It must appear from the language of the Constitution itself, or be clearly inferred from its several parts and general structure. But it is not to be inferred from 'the inexpediency or hardship of the law; for expediency is an element in the enactment of all laws, of which the Legislature is the sole judge.
In construing a statute, it is the duty of the Court, if possible, to give such a construction to it as will bring it within the Constitution, and not one that will make it void.
With these principles in view, I will proceed to give my reasons for holding the act in question constitutional.
t The act provides for the incorporation of companies, consisting of five or more pérsons, for running, driving, booming and rafting of logs, timber and lumber, on the navigable waters of the State. Many of our streams are small *151and navigable only for floating logs. And for this they are inadequate to the wants of the community, and can not be used to their full capacity, unless each person attends to his own logs in such a way as to prevent them of themselves, or in connection with the logs of others, from forming jams or obstructions in the stream. To secure such attention the act was passed, permitting persons running logs to form themselves into companies, and securing to every person having logs to run a right to become a member upon application, by signing the articles of the company, and paying his just proportion of the expense of managing and conducting its affairs: — Comp. L. §1941. No exclusive privileges are given by the act. Rival companies may be formed. And the common law rights of individuals to run logs are expressly reserved.
The next section (§1942), which contains all the provisions of the act obnoxious to the constitutional objection, is in these words:
“If any person or persons shall put, or'cause to be put, into said stream or waters any logs, timber or lumber, and shall not make adequate provision, and put on sufficient force for breaking rollways and jams of such logs, timber or lumber, in or upon such stream or waters, or for running, driving, booming, rafting, securing, or clearing the banks of the same, and thereby obstruct the floatage or navigation, or clearing the banks of such stream or waters, it shall be lawful for said company to cause such rollways or jams to be broken, and such logs, timber or lumber to be run, driven, boomed, rafted, secured or cleared from the banks of such stream or waters, at the charge and expense of the person or persons owning said logs, timber or lumber; and said company shall have a lien upon such quantity of said logs, timber or lumber, as shall be sufficient to pay and satisfy all just and reasonable charges against the same, proportionate to their number, quantity, and the expense of running and securing the same as aforesaid, *152and may sell at public action, on not less than ten days notice, either personally served upon such owner, or posted in three or more conspicuous places in the township where such logs are held; and in either case, by posting a like notice in the office of said company, of the mark,, description, and supposed owner of such logs, timber or lumber, and the amount of the. charges for which the same is to be sold, a sufficient quantity of such logs., timber or lumbei-, to satisfy such claim, charges or demands, with the expense of such sale.” See also the next section (1943). as to lien and compensation.
To authorize the company to take possession of the logs of another two things must concur: 1st. The company must be obstructed by such logs, in running its own logs; 2d.. The owner or person running such logs, must have neglected to put on sufficient force to run them. I think this the-only construction that can fairly be given to this section, when we look to the whole act, in connection with its title, which is,.. “An act to provide for the formation of companies for running, driving, booming and rafting logs, timber and lumber, and for regulating the floatage thereof.” But, suppose it susceptible of a different construction, that would make it unconstitutional; that construction should be adopted that will give effect to the statute in preference to. one that will make it void.
If I am correct in my construction of the statute, there-is no ground for saying the act is for the voluntary formation of companies to exercise poli&e powers over navigable streams; and hence there is no occasion for discussing the constitutionality of such an act. Private rights are all it. attempts to define and regulate. And what are those-rights ?
The obstruction of a navigable stream, without authority of law, is a nuisance, which any person rightfully navigating the stream and injured thereby may remove. The company would have had a right to remove obstructions. *153that interfered with the prosecution of its business, had no such power been given to it by the act. Any person, stopped in the highway by a nuisance, may remove it so as to permit him to pass. But he can not take possession of the thing that formed the nuisance, and carry it with him, and retain possession of it until he is compensated by the owner for the labor and trouble it has given him. His only remedy for the detention it has occasioned him and for removing it, is an action on the case. So it would be with defendant, but for the additional remedy given the company by the ■act under which it was organized. The reason for this new remedy is obvious. The use of streams for floating logs is all in one direction. It is down stream. And when no one attends the logs to keep them in the current, they run aground or against the banks of the stream, and becoming entangled form obstructions to navigation. To® break these, the logs have got to be freed from their entanglement, and to be sent floating down the stream to form new obstructions lower down, if no one is sent with 'them, to be in their turn removed by the impeded navi, gator. In the case of a highway the obstruction may be removed from the beaten track to one side of the road, and the traveller pursue his journey without further molestation. When once rid of the nuisance.he has nothing further to apprehend from it. It is not ambulatory. It does not go before him to block up his path anew. And he is not under the necessity of carrying it with him, or causing it to precede him to get rid of.the evil. Hence the neces, sity for this new remedy and its reasonableness, and the duty of the Court to give it full force and effect.
I see nothing in it injuriously affecting the rights of individuals. If one puts on sufficient force to run his own logs, the company - can under no circumstances take possession of them under the act. And if he neglects this it is not right that he should have his logs run at the *154expense of the company, who must run them in order to run its own.
Neither do I see any thing of an official character in the exercise by the company of the powers conferred upon it. Is the distraining of cattle found trespassing upon the land of another an official act? Is a distress for rent an official act ? There is nothing whatever of an official character in either. They are the exercise of private rights, nothing more; as the taking possession of an estate that has been forfeited is a private and not an official act. Nor is there any thing judicial in either, for the act of the party does not determine his right, which may afterwards be inquired into and determined by a court of competent jurisdiction. It is not necessary to impannel a jury to ^lecide on the trespass, or the amount of rent due, before making the distress, or the forfeiture before taking possession of the thing forfeited. Neither is it necessary, at each successive step» in the accrual of the company’s rights under the act, that a judicial investigation should take place. The whole case is open in all its parts to judicial inquiry when any one claiming in opposition to the company thinks proper to contest its rights. Until this judicial investigation is taken away by the Legislature, or attempted to be, there is no ground for saying the company decides judicially on its own rights; or that the plaintiffs are deprived of their property without the forms of law, oían opportunity of being heard in a court of justice.
The policy of statutory laws is with the Legislature in all cases. It is not confined to acts for the collection of revenue. I know of no constitutional provision placing revenue laws, in this respect, on a different footing from other statutory laws. When the constitutionality of such laws have been questioned, courts have sometimes spoken of them as revenue laws, not because of any exception in the Constitution in favor of such laws, but as a reason for their apparent harshness or severity. Courts may ingraft *155exceptions on common law rules, because such rules originate with themselves; but I know of no power in the judiciary to interpolate constitutional exceptions. I will not say it may not have been done in some cases, but never I think, under a claim of right ■ in the court to do it.
The act has taken from plaintiffs in error the. most plausible pretext that could be urged against suoh a law, viz: that the company determines arbitrarily and on no fixed principle its own compensation. This would not be the case if the act was silent on that point. The company’s-compensation would be whatever it was proved to be worth to run the logs. But the act provides that the plaintiffs in error shall pay what the members of the company pay, and no more. The expenses of the company are assessed pro rata on all the logs run by it, whether they belong to a member of the company or to one who Is not a member.
Judgment reversed. *
At the same time with the foregoing was decided the cose of Jolm Beard and another v. The Port Huron Zog Driving and Booming Company, Id which the following opinion was delivered:
Campbell J.: This was an action of assumpsit, and as we have decided [in Ames v. the same defendants, 6 Mick. 266], that these companies can make contracts, there is no objection to the use of that form of action. But the case was put to the jury in such a way as to involve the same questions
raised in Ames against the same de. fendants. For this reason the judgment should be reversed and a new trial granted. As the evidence itself is not given, it is somewhat difficult to determine precisely the extent to which the other rulings were applicable, and* we therefore do not pass upon themr or undertake to decide how • far any inference of a contract relation between the parties could be justified.
The other Justices concurred.