(.Dissenting.) Deep solicitude for the public welfare and a conviction of impending mischief to the whole State, from the threatened alteration of the North Carolina road, by the alien corporation into whose hands it had fallen must have caused the passage of the Act to prevent that change with a unanimity almost unexampled in legislation. It was the act of the whole people, in the exercise of their corporate sovereignty. Nothing short of the clearest convictions can justify the Court in thwarting the public will so expressed, by declaring their act to be void and of no effect. In doing so, this Cpurt I think, reverses its own decisions, destroys their value as safeguards for the conduct of the citizen, and introduces confusion where order, certainty and consistency should be found.
*537If the State v. Matthews, 3 Jones, 451, is good law, (and it is not questioned) ingenuity has failed to distinguish it in principle from this case. It would be better to overrule that case, expressly, than vainly endeavor to distinguish it. That decision cannot stand with this. There, the charter of the Bank of Fayetteville, authorized it to issue and discount bills without any provision in the charter, as to their denomination. Afterwards the Legislature passed a general act making it indictable for any person or corporation to receive or pass any bill of a bank, of a less denomination than three dollars. Mathews, an officer of the bank, was indicted under this statute for passing a bill of the bank of a denomination less than $3 ; and he relied upon the defence, that he was protected by the charter of the bank, as a contract with the State which was protected by the Constitution of the United States, forbidding the passage of any law impairing the obligation of contracts. The defendant was convicted, and in affirming the judgment this Court said: “Is the authority to issue small notes conferred by the charter, a part of the essence of the contract, with the intention to put it beyond all future control of legislation % or is it conferred as a mere incident, with the intention that it should be subject to such limitation as it might at any time thereafter be deemed expedient to make for the regulation of the currency of the State-? This is a mere question of construction, and a plain statement seems sufficient to dispose of it. With the exception of the powers surrendered to the United States, each State is absolutely sovereign. With the exception of the restraints imposed by the Constitution of' the State and the bill of rights, all legislative power is vested in the General Assembly. It is consequently, unreasonable to suppose that the General Assembly, admitting it has the power, would alien or surrender, and make subject to any individual or corporation a portion of its sovereignty, and thereby disqualify itself from doing that for which these ample powers are conferred on it. As is said in McRae v. The W. & R. R. Co., 2 Ired. 189, “we should hesitate long before *538bringing onr minds to the conclusion, that it was the intention of the Legislature to take from itself, the power of doing that for which all governments are organized, promoting the general welfare, by adopting such measures as a new state of things might make necessary for the benefit of the public; in other words, it is unreasonable to suppose an intention to surrender the means by which it may thereafter be able to effect the purpose for which it was erected and formed into a government.” It follows, that to establish a contract on the part of the Legislature, to relinquish any of its powers, plain and unambiguous words must be used.”
The reasoning of the Court is unanswerable. If the reserved powers of the sovereign can be successfully interposed for the public good in the case of a small bank of limited circulation, how much more can it be when the commerce and general welfare of the whole State is involved? The bank charter was as much a contract with the State as a railroad charter; yea, more so, because a bank charter is strictly a pi’ivate act, whereas a railroad charter is quasi a public act. The bank was authorized to issue bills of any denomination ; so the railroad company was authorized to lay a track of any gauge. The bank officer, after the prohibitory act, passed the forbidden bills and was indicted and punished. The officers of the railroad, after being prohibited, changed the gauge, and by the law go unpunished. The bank perpetrated a small and temporary mischief; the railroad a mischief co-extensive with the .State and of indefinite duration. Every reason of policy and public good which applied to the bank applies with tenfold force in this case.
But Matthews'1 case is fully sustained by Privett v. Whitaker, decided at the present term, of this Court. There, the plaintiff being the owner of a lot in the town of Goldsboro, began the erection of a wooden building thereon and had made some progress in the work. Afterwards the corporation passed an ordinance forbidding the construction of wooden buildings within a district of the town, which embraced this *539lot. The town authorities, in pursuance of this ordinance, entered upon the lot and by force stopped the workmen engaged on the building from further proceeding with the work. This Court sustained the ordinance and justified the act of the town authorities. Here the owner of the lot held it by a contract certainly of as high obligation as that of the railroad company, to wit, by the grant of the State. Yet in the face of this grant the Court- held, that under the power vested in the corporation bj7 the Legislature, the town could prevent him from beginning or completing such a building upon his own land. What higher or more arbitrary exercise of sovereignty can be found than this, apparently in the face of the express grant and contract of the State?- In delivering the opinion of the Court, RodMAN, J., places the right upon the power of the State to abate nuisance. But it must be observed that the town ordinance did not declare such a structure to be a nuisance, but simply forbade the erection, without designing any reason or naming any grievance to be apprehended therefrom. It is immaterial by what name you call a prohibited act, or whether it has any name, nuisance or other, or by what name you call the power of preventingjor abating it — whether the right of eminent domain or the police power — it is, nevertheless, an unquestionable sovereign power, residing in the State, to do, or forbid the doing, those things which the exigencies and welfare of society demand. Whether the emergency requires the intervention of this power must, from the nature of things and the organization of cur form of government, rest in the sound discretion of the legislative body. In Privett’s case, the corporation forbid the completion of a house begun ; in this case the State forbid the widening of the gauge. Can the individual be restrained by penalties and even force, and the corporation go free? Both parties made their contract and hold their property, subject to the paramount right of the sovereign so to regulate its use and enjoyments as will be most conducive to the comfort, good order and general welfare of the body politic. Eights of property, j nst as our *540social rights, are subject to such limitations in their enjoyment as the governing power may think necessary or expedient. Of the perfect right of the Legislature to exercise this power, no question can be made. Nor can it be at all affected by that clause in the Constitution of the United States which forbids the passage of laws impairing the obligation of contracts. All contracts and all lights are subject to this power.
It is well settled, that regulations of this character, though they may disturb the enjoyment ot individual or corporate rights, are not unconstitutional, though no compensation is made for the disturbance. They do not appropriate private property for public use — there is no pretence of such appropriation in our case — but only regulate its use and enjoyment by the owner. If he suffer injury, it is either damnum, absque injuria, or in the theory of the law, he is compensated for it, by sharing in the general benefits which the regulations are intended and calculated to secure. Every oneowns his property subject to this restriction, to-wit, that it must be so used as not to injure others, and that the sovereign may, by police regulations, so restrain and direct the use, that it shall not prove pernicious to his neighbors or the citizens generally. 1 Dillon on Cor Sec. 93, and cases cited.
It is true, that the Legislature cannot make an unreasonable use of this power, and under the guise of exercising a police power, infringe individual or corporate rights, and it is equally true that the Courts, under the pretext that the Legislature has so acted, cannot nullity a statute. Good faith is to be imputed to the Legislature, and all its acts must be presumed to be founded upon a just consideration of the rights and the wellfare, both of the public and individuals. It can have no will and no interest opposed to the public good.
What is the history of this prosecution % Soon after the lease was made to the defendant road, the State of North Carolina instituted proceedings against the defendant road, alleging in the complaint that the lessee had resolved to change the gauge of that portion of the road lying between Greensboro’ *541and Charlotte, and asking for an injunction to prevent that change The defendant answered, confessing the purpose to make the alleged change, claiming tlie right to do so under the lease, and that it was necessary and convenient to make that change, so as to malee the trade correspond with the connecting lines of road north of Greensboro’ and south of Charlotte. So it is manifest that at that time the defendant road did not, and could not, in pursuance of its declared purpose of conforming the gauge to other gauges, contemplate a change of gauge east of Greensboro’, which would produce a discon-formity with that of all the. railroads of the State east of Greensboro’. It is then clear, both from the reason of the thing and the intention of the defendant, as declared in the answer, that the change of gauge east of Greensboro’, is an after thought and a device. This view is confirmed by the fact, that the change of gauge for which the defendants stand indicted, was not begun until near four months after the change between Greensboro’ and Charlotte, and four months subsequent to the passage of the statute forbidding it. Not the slightest weight, then, can be attached to the suggestion that the statute was captious, and if observed would have stopped the work of change of gauge in the midst, causing great damage to the road, without providing compensation. This de-fence is utterly refuted by the special verdict, which finds as a fact, that the change between Greensboro’ and Charlotte was completed before the passage of the act; and I feel warranted by the facts, in saying that when the statute was passed, the railroad company did not contemplate any other or further change, than what had then been made. Nor in determining the validity of the act, can the slightest weight be given to the severity of the penalty inflicted for a violation of the law. With that, this tribunal has no concern. Nor yet can this Court pay any regard to suggestions, that the directors of the North Carolina Railroad, representing the stock and interests of the State, concurred in the lease, with the powers therein contained, to change the gauge. If the fact were so, the di*542rectors could only represent the State, as a private stockholder, and their assent to the lease could have no possible effect in determining the constitutionality of the statute, or the police powers of the State as a sovereign. Nor, again, can the decision of the Court at the last time, State v. R. & D. R. R. Co., 72 N. C. Rep., 634, be invoked in behalf the defendants. The only questiou raised and decided there was, that as the law stood at the time that action, was instituted, the defendant company, by virtue of the charter, had the right to change the gauge. We have assumed the validity of that decision, throughout this discussion. The very question raised by the special verdict and argued here is, whether the subsequent legislation in a constitutional sense, was a violation of the contract between the State and the Company, or was a legitimate exercise of the police power of the State. The criticism upon the preamble to the statute forbidding the change of gauge, that it is for the benefit of certain other roads, at the expense of the defendants’ road, cannot assist the argument.
The recital in the preamble, sots forth the most urgent reason for the act, to wit, that there may no longer be any doubt as to the policy of the State as to the gauge of the roads, and that the proposed change would seriously affect all the railroads of the State, and thus through them the commercial and other interests of the people. No array of public inconveniences, could more loudly call for quick and decisive action by the legislative body, entrusted with the public welfare.
The question before the Court does not call upon us to ascertain and accurately define the limits of the police power of the State, or how far the police power or the right of eminent domain, may extend in derogation of essential or non-essential parts of a contract. It is perfectly well settled, however, that the right of the States to exercise both powers, does not impair the obligation of contracts within the meaning of the prohibition of the Constitution of the United States. It is also well settled that all property is held and all contracts are made, subject to this power. The State is the exclusive j'udge *543both of the necessity and the extent of the exercise of either power. 2 Dillon, sec. 455, 6 How., 507, 13 How., 71. And in the exercise of the general police power of the State, or of taxatioh, private property may be taken for the public use without compensation therefor. Sedg. on Stat. and Const.,, laws 1853-’54-’55. Suppose the Legislature, to prevent injury to live stock, should, by statute, direct the North Carolina Eailroad Company to enclose the road by a fence and to keep it in repair. It is well settled that such a statute can be enforced, however costly to the corporation as a police regulation. So the State can, in like manner, forbid such corporations to erect wooden depots and shops in towns along the line, or even cause the removal of such, already constructed upon their own property. 42 Bt. 339, 66 Penn., 164, 26 Wis., 145. These are but illustrations of ¿the proposition that all contracts are made, subject to the paramount authority of the State, to control their enjoyment, so as to subserve the general welfare, the purpose for which society is organized.
I think judgment should have been given against the de fendants upon the special verdict.