State v. Yopp

• Decision Date: 30 May 1887
• Citation: 2 S.E. 458,97 N.C. 477
• Parties: STATE v. YOPP.
• Court: North Carolina Supreme Court

2 S.E. 458

97 N.C. 477

STATE v. YOPP.

Supreme Court of North Carolina

May 30, 1887

Appeal from superior court, New Hanover county.

Defendant was charged in the indictment with unlawfully, willfully etc., using and riding a bicycle on a certain road, to-wit the "Wilmington and Coast Turnpike," belonging to an incorporated company by that name, without the permission of the superintendent thereof. Defendant was found guilty and appealed from the judgment pronounced.

Priv.Acts 1885, c. 14, forbidding every person to use upon a certain turnpike road "a bicycle, * * * without the express permission of the superintendent of said road," etc does not deprive the owners of bicycles of the use of their property "without due process of law," but merely regulates such use on a particular road at a particular time, when it would otherwise be dangerous to others lawfully using said road, and is a valid exercise of the police power of the state.

The Attorney General, for the State.

Russell & Ricaud, for defendant.

MERRIMON J.

The power of government, commonly called the "police power," to regulate the conduct of individuals in the exercise of their personal rights, and the use of property, with the view to secure the just enjoyment of right of whatever nature of every individual, to promote the public convenience, safety, and common good, is essential and as well very great and comprehensive in its nature and extent. It is founded very largely on the maxim, sic utere tuo ut alienum non lædas, and also, to some extent, that other maxim of public policy, salus populi supreme lex, and it is of almost universal application in regulating the interests of society within the jurisdiction of the state. It is too well settled to admit of serious question that every person is subject to it in his person and property. And, however absolute his rights to and ownership of property may be, he holds it subject to the implied obligation that he will use it in such way as not to prevent others from having their property, and enjoying the just use and benefit of it, and as will not destroy, abridge, or injure the rights of the public. The legislature, in the exercise of this power, may, subject to any constitutional limitations, prescribe just and reasonable regulations and restraints, in order to secure such important ends, and enforce them by such proper penalties and other means as it may deem expedient and wise.

The extent of this power has not been defined with precision. Indeed, it seems to be practically impossible to do so, because of the vast variety of conditions and circumstances governing its application. We are not, however, embarrassed by any question in this respect here. It is clear that the legislature has complete power to provide proper and reasonable police regulations, and to amend or alter them from time to time, in respect to the highways of the state, and persons going upon and over them with their vehicles, horses, and other motive power, with a view to protect the roads, and the safety and comfort of passengers going over them. The power is constantly exercised, and it is prudent and necessary to do so, as common experience everywhere proves. Many persons are more or less selfish, and seek their own advantage, and consult their own convenience, fancy, or pleasure, without proper regard for the like rights of others, sometimes at their expense, and hence legal restraints and regulations are necessary.

As we have seen, no man has the right, in the use of his own property of whatever nature, to so use it as to injure another in the just use of his, or the exercise of his personal rights. Hence there is no reason why the owner of a particular kind of vehicle, which, because of its peculiar form or appearance, or from the unusual manner of its use, frightens horses, or otherwise imperils passengers over the road, or their property properly there, shall not be allowed to use such vehicle on the road. He has no right to use it to the prejudice or injury of others who are lawfully exercising their rights in the use of it.

If it be said, when shall one person be restrained in doing as he will with his own property,--from going, for example, on the highway with his own vehicle, of whatever kind? the answer is, whenever, in the ordinary lawful course of things in that connection, he would, by the...