ation. But since the water has been used for the feeder, there has been a deficiency of water, for the same operations, to an extent considerably injurious to these establishments.

FIFTH: Subsequently to the completion of the canal, some individuals, owning land, on the side of the feeder, opposite to the town of Dayton, constructed a canal, with a view to private profit, for which a supply of water could only be obtained, from the feeder, at a proper point. At this point the board of Canal Commissioners purchased a piece of land, lying upon both sides of the feeder, for the purpose of disposing the water power of the canal, for the benefit of the state. The respondent, as acting Canal Commissioner, in conformity with the law, advertised the sale of the water. The place where the water thus to be sold, was to be used, was so arranged that the water, after having been used would flow into the new canal, and pass through it into the public canal, at a considerable distance below the town of Dayton, and would be diverted from its course in the public feeder, through the lands of the complainants, to the lands of the constructors of the new canal. It is to prevent this sale and diversion of the water, that the bill is filed, and the injunction asked. It was allowed by the Court of Common Pleas, and comes here upon an appeal.

Before the location of the canal and basin, in 1825, the complainants were invested with a complete and perfect right to the use of the water of Mad River, for any purpose that it could be used upon their own lands. This right was subject to no other restrictions, but that they should not flow it back upon the proprietor above them, and that they should return it into the bed of the river, for the use of the proprietor below them. 2 John. Chy. 165. The state in its sovereign capacity, had no right to any portion of it. In the exercise of its sovereignty it could take it from the actual owner for an object of public character and of public utility. But this assumption of private property cannot be made for the use of the government. It can only be made for the use and benefit of the people: for that description of use, which every citizen may enjoy, in the same manner and upon the same terms. It is this kind of use that constitutes the "public welfare," which I conceive to be distinct from government interest, profit or concern. It is only this great and common benefit to all the people alike, that creates a necessity authorizing and justifying the seizure, by the government, of the private property of individuals. It is the people's prerogative, exists in the social compact, and is founded on the maxim, "salus populi suprema est lex." The terms in which our constitution recognizes the principle, private property is "always subservient to the public welfare," excludes its assumption or use, in any other way, or for any other object or purpose whatever.

However enlarged and liberal, the exercise of this prerogative, by the sov. ereign power, may be, or ought to be held, it must have some limit. It will hardly be maintained, by the wildest adventurer for power, that the State may, at pleasure, assume to itself the franchises, or other rights or interests of individuals, to improve and dispose of them for the purposes of revenue. The sovereign may take that, without which he cannot promote the general welfare, in the sense I understand it, and no more. And even this power would be without limit, or the limit of no avail, unless the line can be drawn, with such

certainty as to become a rule, capable of illustration, and of being so stated that all, who are subject to it, may understand it.

In the case before us, the Legislature seem to have understood this doctrine as I do, and they have attempted the definition, in authorizing the assumption of private property for the great "public welfare" of constructing the canal. The public agents are authorized to " seize and take" what is required for the public use," doing no unnecessary damage." What does this mean, when reduced to a rule, applicable to the case before the court? It seems to be plainly this. You may take from the complainants the use of their water necessary for the safe and secure navigation of the canal. But, if consistent with this use, in the location where you have resolved to use it, a beneficial interest may still remain in them, you shall not deprive them of it. To do so, is damaging them unnecessarily. To sell the water for government profit, in aid of the revenue, is to seize the complainants' property; not for the common use of all, in the same manner and upon the same terms: but is, in fact, fastening a burthen of taxation upon ONE, which ought to be enforced equally upon ALL. This inequality of burthens is not necessary, for the purposes of navigation, the great and principal object of the canal: and it is illegal if imposed for any other purpose.

I do not perceive how the case is affected, by the position, that the canal commissioners are clothed with the exercise of a sound discretion. The law certainly does not, and, indeed, under our constitution, could not, constitute them exclusive judges of what would be a sound discretion. That appertains to the judicial tribunals of the country. They alone can establish and apply the rule of right, where individuals are concerned. Where public agents are about to transcend the legal limits of their authority, courts of equity adjudicate upon the matter, and enjoin their irregularities if necessary. In the case of Shawd v. the Aberdeen Canal Commissioners, 2 Dow. 519, Lord Eldon said: "If the Canal Commissioners exceeded their powers, they became trespassers, but chancery would restrain by injunction, and keep them strictly within the limits of their powers."

In a still later case, an injunction was granted, in England, restraining defendants, acting under a private act of Parliament, from cutting a canal through the land of complainant, in a manner not supposed to be within the equity of the statute. Cooper's Equity, Rep. 77.

Chancellor Kent cites these cases with approbation, (2 John. Chy. 168, 473,) and admits that the complainant might have lain by and rested on his legal rights, and then brought trespass: but he was also at liberty to come into chancery, in the first instance, for a preventive remedy, and if there was any dispute, as to the fact, which course the complainant ought to pursue, chancery would direct an issue." It is a question of power, however an attempt may be made to confound its exercise, with a sound discretion. In such a case, I believe it the safest rule, and the one most conformable to principle, and the letter and spirit of our constitution, to endeavor to ascertain the exact line of right, and then adopt Lord Mansfield's maxim, "fiat justitia ruat cælum."

The discretion confided to the Canal Commissioners, by law, is to assume private property for constructing the canal, and making it navigable. For these purposes, a necessity arises within the meaning of the terms “public wel

venue.

fare." But is there any public necessity for the sale of the water power in question? Such a sale does not aid the navigation. It only aids the state reIf made, will it lessen the value of the property of the complainants? I cannot entertain a doubt upon these matters. The proposed sale of water power is not necessary to the "public welfare," and it must operate very injuriously to the complainants. If doubt pressed upon my mind, still I should incline strongly to fix the strictest limit, upon the governmental prerogative of assuming private property for public use, taking care that the great object of the canal, its safe navigation, should not be defeated, or its benefits impaired. This navigation, is, in my opinion, the only legitimate object of the canal. So far, therefore, as any advantage to the state, or to its revenues, may be contempla. ted, by this sale of water power, to the prejudice of private right, I think the strictest rule should be applied. I think, too, that in the case before us, the contemplated sale of water power, is a sheer state speculation, at the expense of the complainants.

It is objected that the state, having assumed the water, is under no legal obligation to permit, or dispose of the use of it to any one. Consequently, it may be conducted in the feeder, through complainants' lands, and the use of it refused to them with impunity. This point is not now before the court, but, in respect to it, it may be remarked, that possibly a court of equity might deem itself authorized to compel the agents of the state, to allow the complainants to use the surplus water, on their own lands, taking care that such use should never preju. dice the secure and easy navigation of the canal.

From the best view I can take of the case before us, its turning point seems to be this: May the respondent, as a public agent, for the purpose of aiding the public revenue, do as he pleases with water, however much his doings may prejudice the individual rights and interests of the complainants? My response is, "I am unwilling." Such, I think, ought to be the response of the laws and judicial tribunals of the country.

The converse argument runs thus. The Canal Commissioners have the right, that is, the power to take the water out of Mad river, and conduct it, by a feeder, to the canal, for the purpose of navigation. Having it in motion, on the way to the canal, they may put it into market to raise revenue for the state, without any regard to the individual interests and rights of those who owned the use of the water, before it was introduced into the feeder. I cannot allow this. The discretion of all public agents, especially in the assumption of private property, for public use, must be brought to the test of legal judgment. It must be controlled by some limit, and subjected to some rule. The application of that rule belongs to the judicial tribunals. They settle the bounds of official discretion, which has a continual tendency to encroach upon private rights. It is their province to arrest the exercise of that discretion, when it oversteps the requisitions necessary for the "public welfare." In this light, the proposed sale of water presents itself to my mind, and I would prohibit it. If any given quantity of water can be taken from the feeder, and returned to the canal, without injury to the navigation, the only legitimate object of state appropriation, I conceive it should be left with the original owners, whose right is the oldest, the best, and ought to be exclusively enjoyed.

JORDAN v. THE OVERSEERS OF DAYTON.

A patent issued by the President of the United States, securing the exclusive right to manufacture and use certain medicine, does not authorise the administration of them, by an individual in the character of a practising physician, without conforming to the laws of the state where they are administered.

The overseers of the poor, brought an action of debt before a justice of the peace, against Jordan, to recover certain penalties, for practising physic, in violation of the statute, regulating the practice of physic and surgery. The case was appealed to the court of common pleas, and judgment was there rendered in favor of the overseers of the poor; to reverse which, this writ was prosecuted. The facts were agreed between the parties as follows:

It was admitted, that Jordan, not being a member of any medical society of the state, and not being qualified to practice medicine, as required by the statute, did administer to, and prescribe for one William Sullivan, and one William Prigg, and received fees and rewards therefor. That on the 25th of January, 1823, a patent was regularly issued, from the United States to Samuel Thompson, granting to him, his heirs and assigns, for the term of fourteen years, the exclusive right of making, constructing, using, and vending to others to be used, a certain new and useful improvement, being a mode of preparing, mixing, compounding, administering and using, the medicine described in certain specifications thereto annexed, in the manner, and in the diseases set forth in said specification. It was also further admitted, that Jordan was the assignee of Thompson, and vested with all the rights and privileges conferred upon Thompson by the patent, and that the medicines prescribed and used by Jordan in his treatment of Prigg and Sullivan, were the same set forth in the patent and specifications, and were administered for the diseases therein mentioned. Also, that on the day of

1813, a patent was granted to the same Samuel Thompson, with specifications substantially the same as those attached to the patent of 1823, and conferring the same rights and privileges.

Corwin, Collet and Lowe, for plaintiff in error. Witcher, contra.

Opinion of the Court, by Judge LANE.

The case presents two questions: 1. whether the evidence sufficiently shows that the defendant practiced medicine, and 2. whether the eleventh section of the statue, imposing a penalty for practising medicine, by persons not members of the medical society-is inoperative on him, by reason of Thompson's patent. On the first point, the case shows that Jordon prescribed and administered medicines to two sick persons, for fees. The stipendiary character of the service forbids the belief that it was an act of neighborly kindness, or the execution of a moral duty. Administering medicine may be the office of a nurse; but prescribing medicine to the sick implies the exercise of skill, in the discrimination of diseases, and the selection of fit remedies; to acquire which skill is the object of medical education, and to exercise which, for fees, is but another

name for the practice of medicine. In the absence of explanation, we be lieve the statement sufficiently shows, that Jordan, in these cases, acted in the character of a physician.

In discussing the second question, I choose to divest the case of all matters, except those arising from its simplest merits. For present purposes, therefore, I assume that the right of prescribing and administering medicines, is a proper subject for a patent, and that the patent of 1823 is to all purposes regular and effective. I proceed to consider, whether the patent conveys such a right, that the authority of the State may not controul its exercise.

A large portion of the duty of the law giver, in every civilized community, consists in regulating the conduct of individuals, in different matters, for purposes of general welfare. Some acts of this nature are the objects of penal legislation. There is no moral turpitude, in vending tickets of lotteries from other States, or in selling spirituous liquors to Indians: yet the good of society demands their prohibition. Other and the larger class are in various forms regulated by law. Thus, the act of keeping tavern is a lawful trade: yet, because it is of public concern, that the convenience of travellers be secured, and be cause it is conducive to public morals that intemperance be suppressed, the legislature have forbidden its indiscriminate practice, and have placed those engaging in it under the watch of a court. And for reasons, in some respect similar, pedlars and ferrymen are placed under the same supervision. The exer cise of police powers by municipal corporations, the laws concerning the inspection of provisions, and the fixing rates of toll for turnpikes and bridges, are examples of similar powers. So the business of grinding grain, a work strictly private, interests so many persons, that the legislature have deemed it proper to fix a price for labor. So the profession of law is of so public a nature, that its practice is wholly forbidden, until after a reasonable demonstration of ability, and until after an opportunity has been offered, to learn the morals of the practitioner. And the profession of medicine is regarded, by the legislature, as of a similar character, so that policy requires an examination should be instituted into the professional capacity of the practitioner, before he shall be permitted to operate upon the health of citizens. In all these cases, the interpretation of the law given, is justified by the obvious principle, that although a man's rights to his own are absolute and indefeasible, yet these rights must be so used, as not to infringe the rights of others, and may be so regulated as to promote the general good.

But the plaintiff in error, without denying these matters, to be the suitable and ordinary subjects of legislation, insists the power of the legislature is limited, in this case, because the patent, securing to Thompson the exclusive right of preparing and mixing medicines, emanated from the general government, under the authority of the constitution: and that its full effect cannot be had, unless it be holden altogether exempt from State controul. This leads us to consider the nature and extent of such rights as accrue from letters patent, for useful discoveries. Although the inventor had, at all times, the right to enjoy the fruits of his own ingenuity, in every lawful form of which its use was susceptible, yet, before the enactment of the statute, he had not the power of preventing others from participating in that enjoyment, to the same extent with himself; so that however the world might derive benefit from his labors, no profits en