manufacture of cigars or the preparation of tobacco in any form in tenement houses is prejudicial to the public health, and the prohibition thereof expedient.

use.

III. The said act does not deprive any person of his property. It does not take away property; it merely regulates its The owner of a tenement house affected by said act is not deprived either of the title or the possession. The use of his property by any other lawful purpose is unrestricted. The appellant invokes an alleged analogy between the exercise of the police power of the state and its power of eminent domain. The two powers and their natures and the conditions, under which they are exercised, must not be confounded. They are distinct powers and differ substantially in their essence, and the constitutional conditions as to their exercise. Under the police power property is not taken for public use, but its use is regulated, and sometimes in extreme cases of emergency the property itself is destroyed. The power of eminent domain is expressly and directly limited, and its exercise regulated by the Constitution, which is not the case as to the police power. Cooper v. Schultz, 32 Дow. 107-121; Coe v. Schultz, 47 Barb. 64-70; Cooley on Const. L. (5th ed.) 707; Potter Dwarris on Stat. 463; Dillon on Mun. Corp. § 93; Sedgw. on Cons. Law, 423; State v. Blake, 36 N. J. Law, 443-447; Bertholf v. O'Reilly, 74 N. Y. 521. The exercise of the police power by the Legislature is left as free from constitutional restriction and as unlimited as is the power of taxation, as to which see People v. Mayor, 4 N. Y. 419. See also Darlington v. Mayor, 31 N. Y. 190; Bank of Rome v. Village of Rome, 18 N. Y. 38; Metropolitan Board of Excise v. Barrie, 34 N. Y. 657.

IV. It is the undoubted province of the courts to decide whether or not any particular act was or was not upon its face passed by the Legislature in the exercise of its police power and as a health law. When the title of such an act is a manifest lie, when the act itself shows that its title is a fraudulent label, when the act plainly and clearly proves that it was passed without facts upon which the Legislature exercised its discretion, then the courts may declare such an act unconstitutional. But this is not the case with the act under review. Its title corresponds with the text. It is evident that the Legislature has

come to the conclusion that the manufacture of cigars or preparation of tobacco in any portion of a tenement house, occupied as a home or residence for the purpose of living, sleeping, cooking or doing any household work therein, is noxious, offensive, prejudicial to health, and this finding of the Legislature is conclusive, and cannot be disturbed or set aside by the courts. In the Matter of N. Y. Elevated R. R. Co. (70 N. Y. 351), the court said: "But it is claimed that there was but one elevated railway in actual operation at the time of the passage of the act, and hence that it must be deemed that the Legislature had sole reference to that. It was well said by ALLEN, J., in People ex rel. Bolton v. Albertson (55 N. Y. 50), that "no motive, purpose or intent can be imputed to the Legislature in the enactment of a law other than such as are apparent upon the face, and to be gathered from the terms of the law itself." See People ex rel. Wood v. Draper, 15 N. Y. 532, 545, 555. Tenement houses are a particular kind of buildings, known to and defined by the law. Laws of 1867, chap. 908, § 17. The Legislature has thrown special safeguards around them in regard to their sanitary condition. Ib. §§ 1 to 18. They are considered a public evil, but born by the necessity of certain localities, and under the present condition of society, not capable of being suppressed, but merely mitigated. And mitigation of the evil is all the Legislature has attempted to accomplish by said act. It does not prohibit the manufacture of cigars and the preparation of tobacco in the tenement houses as a whole. The exceptions which the law makes to its principle-as the exemption of the first floor where there is a store for the sale of cigars, and such floors of which no part is used for dwelling purposes, -and which the appellant urges against the constitutionality of the said act, are evidence that the Legislature desired but to mitigate, not to suppress the evil, which, in the mind of the Legislature, exists in the manufacture of cigars, etc., in tenement houses. If the courts should undertake to declare this act unconstitutional, then the said Law of 1867 would also be clearly unconstitutional, as it regulates the use of tenement houses in the most extensive and detailed manner, prohibiting among other the use of any vault, cellar or underground room as a place of lodging or sleeping (§ 7), and the storage of any article

dangerous to life and detrimental to health (§ 8). The dangers with which tenement houses threaten public health are such a notorious fact that in the Matter of Application of Paul (2 N. Y. Crim. Rep. 1) the Court of Appeals took judicial notice of them. There is an essential and vital difference in substance and kind between the act of determining whether a given use is a public one, and the act of determining whether a law is a police or health law. Whether a use is or is not a public one, is a question dependent upon facts easily understood and ascertained beyond any doubt. The question of expediency has nothing to do with it. It is a plain question of definition, is the given use public or private? Not so, however, the question whether any specific act or thing is or is not prejudicial to the public health. As to such a question the wildest differences of opinion exist in many cases in which all the facts capable of any definite ascertainment are fully known. This question is one of expediency. It is theoretical, speculative and purely matter of opinion in the majority of cases and not capable of actual and indubitable solution or demonstration. The analogy, so far as eminent domain is concerned, is between health laws and the expediency of a public use, and not between such laws and the fact of a public use. This question of expedi ency in cases of eminent domain is held to be a purely legislative and not a judicial one. In re Townsend, 39 N. Y. 171-174. In People ex rel. Herrick v. Smith, 21 N. Y. 595, at page 598, this court says: "The necessity for appropriating private property for the use of the public or of the government is not a judicial question. The power resides in the Legislature." This is the rule applied to all cases of the exercise of police powers. That the question as to whether or no any specific act is, or is not within the police power as a health law, is analogous to and to be treated upon the same principles as the question of the expediency or necessity of a public use is well illustrated by the cases of Stuyvesant, Coates and others against the Mayor, 7 Cow. 585. In these cases the Legislature had given the municipal authorities power to pass certain by-laws "if the corporation find it necessary." The by-laws were passed, and suits were brought upon them. There was no averment in the declaration that the corporation found the by-laws necessary, nor was

there in the by-laws any recital of any adjudication of necessity, nor did the declaration aver that in truth the by-law was necessary. At pages 606, etc., the court says: "For all or some of these reasons it is contended that the by-law, as pleaded, must be adjudged void. To be a corporation is a franchise, and all our aggregate corporations enjoy the prerogatives of government to a prescribed extent. Among these is the power to pass by-laws upon certain subjects. They cannot transcend the powers conferred on them by statute. This is their constitution. Neither can the state or general government transcend the powers conferred by their constitutions. Every act beyond the constitution is void, and may be declared so by our courts of justice, whether it emanated from a general or local Legislature. An unwarrantable interference with private property is equally unconstitutional and void, whether by the state Legislature or a corporation. By neither can it be touched without necessity, and then, if taken, it must be upon just compensation. This necessity is not absolute. It is nearly synonymous with expediency or what is necessary for the public good. The word necessary, when applied to a law, or taking private property, is constantly understood and acted upon in this sense, or as contra-distinguished from unnecessary or inexpedient. It is of the nature of legislative bodies to judge of the exigency upon which their laws are founded; and when they speak, their judgment is implied in the law itself. It is sufficient, therefore, to set it forth in pleading. This is equivalent to an averment that the exigency has arisen, been adjudicated and acted upon. All to be shown beyond this, is matter by which the court may see that the law operates upon the subject of the power. The implied adjudication is then taken as conclusive; if not so, the exigency itself would be the subject to traverse and trial by jury. To say that it must be averred, in pleading, would be to require that the propriety or expediency of every law should be tried as matter in pais. Such a consequence was never contended for in relation to the acts of the lowest judicial magistrate in the community." The court then refers with approval to the case of Martin v. Mott, 12 Wheat. 19, where, under a statute authorizing the President of the United States to call forth the militia whenever the country should be invaded or in

says,

imminent danger of invasion, it was held that the President was constitued by the act the exclusive judge of the exigency, and that his simple requisition, which recited nothing about danger, invasion or exigency, was conclusive evidence that he had passed as a judge on the case. The court then "if such strong judicial intendment prevails in favor of a single officer executing a law, a fortiori, should it be exercised in favor of the law-making power itself." In Stuyvesant v. Mayor, 7 Cow. 588, the court, speaking of a by-law relating to the public health, and to be treated as a health law passed by the Legislature, places the power to pass it upon the same grounds with, and speaks of it in the same language as it does of the " necessity or exigency" for "taking private property." It holds the Legislature to be the sole judge in each case, and its determination in each case to be conclusive. As stated before, whether the protection of the health, comfort and lives of the public will be promoted by the act in question, is a matter of inference, speculation, judgment and discretion and not one of simple definition or demonstration. As was said in the case of Gordon v. Cornes (supra), as to the power to apportion taxes, so it can be truly said here, the power to decide is left with the Legislature and its decision cannot be reviewed by the courts in the absence of constitutional restraints and restrictions, unless in extreme cases, where confessedly no discretion had been exercised, but that had arbitrarily been called a health law which could not reasonably be regarded by the Legislature as such, it having palpably no connection with matters of public health. If this be not so, then the courts will be called on to substitute their judgment for that of the legislature in all cases of laws relating to the public health, and possibly juries must try the question. They, and not the Legislature, must in each case have power and will be called on to decide whether a public danger or inconvenience exists calling for a given health or police law.

V. Appellant's claim, that this act was passed in excess of the police power of the state, cannot be entertained, unless supported by positive, clear, undisputable proof. This has not been produced by appellant. The court will not declare a law unconstitutional, unless it is plainly and clearly in derogation of