1

The practical consequence was, as respects violations of the law, or regulations of the Board of Health, in the use and management of lodging-houses, that the offenses were generally treated as ordinary misdemeanors, and the offenders tried at the Sessions, and found no sufficient grounds of appeal to the higher courts. The owners, lessees, tenants and occupants are all respectively made liable for any infraction of these or the other health laws in the city of New York. It is expressly made the duty of each to keep and preserve the place, apartment, room and building in such condition, and to conduct the same in such a manner that it shall not be prejudicial to life or health. Under the Tenement-House Acts, in prosecutions, "in any such action the owner, lessee and occupant, or any two of them, may be made defendants, and judgment may be given against the one or more shown to be liable, as if he were the sole defendant or defendants. In vacating a building because infected, or dangerous to life from want of repair, or unfit for habitation because of defects in drainage, plumbing, ventilation or construction, or the existence of a nuisance on the premises likely to cause sickness among the occupants, the order may be posted on the building, and served on the owner, lessee or agent, personally or by mail. The presumption under these laws is, of the liability of the owner, and, in public prosecutions, the parties or persons interested are left to distribute the responsibility among themselves. The person creating or continuing a nuisance here, as elsewhere, is liable at cominon law, and the general question of duty and liability for defects and nuisances, between landlord and tenant, was discussed in a previous chapter.

The Tenement-House Commission, appointed by the law of 1884 and in 1885, reported as its third recommendation for legislation as follows: "3d. Water supply; that there shall be adequate supply for p. 20;" 29 tenement-houses were ordered vacated." This was under section 659, New York Consolidation Act, which is a re-enactment of the Tenement-House Laws, amended in 1887, p. 31. There are eight hundred and sixty-three civil actions for penalty under the Tenement-House Law, and three hundred and forty-eight judgments in the criminal courts, which include some under these laws.

1 N. Y. Cons. Act, §§ 539, 665, 659, 658; chap. 908, 1867, § 16; chap. 74, 1866. In general, see chap. 11 at end and notes, and 126 N. Y. 527; N. Y. San. Code, § 205: "That the owner, lessee, tenant or occupant of any building or premises, or any part thereof, where there shall be a nuisance, or a violation of any ordinance or section of the Sanitary Code, shall be jointly and severally liable therefor, and each of them may be required to abate the nuisance, or comply with the order of the Board of Health in respect to the premises, or the part thereof, of which such person is the owner, lessee, tenant or occupant."

domestic purposes on each story that is inhabited, or intended to be occupied, by a family, either by the Croton pressure or by tanks in the upper part of the building."

"The reasons for this are obvious. We may add that nearly all the inspectors agree that the sanitary condition of houses freely supplied with water on each floor is better than that of houses not so supplied."

The law of 1887, passed in pursuance of these recommendations made in the preceding year to the legislature, contained the clause requiring tenement-houses to "have Croton or other water furnished in sufficient quantity at one or more places on each floor occupied, or intended to be occupied, by one or more families; and all tenementhouses shall be provided with a like supply of water by the owners thereof whenever they shall be so directed to do by the Board of Health," etc., and the Board of Health was required to insist upon this supply. In November, 1891, the Health Department of the city of New York had judgment in its action, in the Court of Common Pleas in the city of New York, against the Rector, etc., of Trinity Church for penalties amounting to $200, for its violation of law in refusing to supply water on the several floors of its tenement-houses, 77 and 84 Charlton street, in said city.' On appeal the General Term of the same court on March 7, 1892, reversed the judgment on the ground that the law was "an unwarrantable exercise of the police power." The opinion in the Trinity Church case stated that "the postulate upon which the legislature proceeds is the duty of the government to exercise a paternal protectorate over the people.

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A conclusion contrary to the present decision would involve the essential principle of that species of socialisin under the regime of which the individual disappears and is absorbed by a collective being called the State, a principle utterly repugnant to the spirit of our political system and necessarily fatal to our form of liberty." Leave to appeal was granted by the court and an appeal was taken, but in some changes of the city administration it does not appear to have been prosecuted. The City of Rochester v. Simpson, cited in the opinion as decided below, has since then been reversed by the Court of Appeals. In

'N. Y. L. 1884, chap. 447; N. Y. L. 1887, chap. 84; N. Y. Cons. Act, § 663; same section amended as to cellars, chap. 486, L. 1890; id. 1891, chap. 39; N. Y. L. 1892, chap. 329, giving discretion to Board of Health in certain cases; 17 N. Y. Supp. 510; 43 N. Y. St. R. 142. This case was followed in Fire Department v. Gilmour, N. Y. Com. Pl., Gen. Term, May Term, 1893. See, also, as to reasonableness of an ordinance, Mayor, etc., v. Dry Dock, E. B. & B. R. R., 133 N. Y. 104; People v. Rosenberg, 138 N. Y. 410, 416.

Shanahan's case the court held "there is room for much bad legislation. and misgovernment within the pale of the Constitution, but whenever this happens, the remedy which the Constitution provides, by the opportunity for frequent renewals of legislative bodies, is far more efficacious than any which can be afforded by the judiciary. The power of courts. to overturn legislative acts, by independent inquiries as to facts, has been considered and denied in more recent cases." Since then the rule has been repeated that "legislative power is not given to the court.”

This statutory requirement of water in tenement-houses, and, indeed, the whole section, is easily separable from the other parts of the law, unless force be given to the several re-enactments of the clauses contained in it. In the Matter of Paul and Matter of Jacobs, acts were under review which purported, by their titles, to be "to improve the public health in the city of New York," and yet their provisions were such that the Court of Appeals held the title was deceptive and said: "This law was not intended to protect the health of those engaged in cigarmaking, as they are allowed to manufacture cigars everywhere, except in the forbidden tenement-houses. Nor was it intended to improve or protect the health of the occupants of tenement houses. If a store is kept for the sale of cigars on the first floor of one of these houses, and thus more tobacco is kept there than otherwise would be, and the baneful influence of tobacco, if any, is thus increased, that floor, however numerous its occupants or the occupants of the house, is exempt from the provisions of the act." People v. Marx, People v. Arensberg, People v. Gillson, have no reference to tenement-houses or the distinctive legislation which controls them.

The law of 1892 to regulate the manufacture and sale of clothing, wearing apparel and other articles in this State" is of a different character.' The Massachusetts laws are the same; they define their purpose in the terms of the acts, prohibiting the use of rooms or apartments used for eating or sleeping purposes in a tenement or dwelling-house, for the manufacture, in whole or part, of clothing, flowers or cigars, except by the immediate members of the family

17 City of Rochester v. Simpson, 57 Hun, 36; reversed, 134 N. Y. 414; W. W. M. Co. v. Shanahan, 128 N. Y. at p. 359; People v. L. I. R. R. Co., 134 N. Y. 506. As to the destruction of property rights discussed by Mr. Justice Ryan, see 119 N. Y. 233, 234. As to an essential part of an act, see Matter of Mayor, etc., 99 N. Y. 569. See, also, Ensign v. Barse, 107 N. Y. 329; Matter of Paul, 94 N. Y. 497; Matter of Jacob, 98 N. Y. 98; N. Y. L., chap. 93, 1883; chap. 272, 1884; People v. Marx, 99 N. Y. 377; People v. Arensberg, 105 N. Y. 123; People v. Gillson, 109 N. Y. 389.

18 N. Y. L. Laws, 1892 chap. 655; Massachusetts Acts and R. 1891, chap. 357; 1892, chap. 296.

living therein. Every such workshop is to be kept clean and to be subject to inspection for the purpose of ascertaining whether articles made, altered or repaired therein, are free from vermin, and whether there is any matter of infectious or contagious disease present in any workshop, or the place is in an unhealthy condition, or the clothing or materials unfit for use; and such orders may be issued by either authority, as the public health may require; and the Board of Health is directed to condemn and destroy all such infectious and contagious articles. The same course may be taken in respect to articles manufactured elsewhere, "under unhealthy conditions," and transported into the State, if, on examination, "they be found to contain vermin, or to have been made in improper places, or under unhealthy conditions, upon report thereof, to the Board of Health. So far, these laws are consistent with ancient and modern quarantine and health regulations. The inspection required and the necessary use of permits, for all such workshops, upon examination and the penalties provided, also come under familiar examples of preventive measures in health laws and remedies sanctioned by experience and by decisions of accepted weight. Further provisions' are that, "whoever knowingly sells or exposes for sale," any of the specified articles "shall have affixed to each of said garments a tag or label" of prescribed size, "upon which shall be legibly printed, or written, the name of the State, and city or town where such articles are made. No one shall use a fraudulent tag or label, or remove, alter or destroy it. Similar marks and designations have been required for oleomargarine packages, and stamped milk cans, and stamped bottles are provided for and protected by penal laws, under which convictions have been sustained.

1 The conditions are within Minnesota v. Barber, 136 U. S. 313, and are supported by Kimmish v. Ball, 129 U. S. 217; and see 135 U. S. 153, 159; and Patapsco Guano Co. v. Board of Agriculture of N. C., 52 Fed. R. 690; chap. 655, L. of N. Y. 1892, § 4, "Whoever knowingly sells, or exposes for sale, any coats, vests, trousers, knee-pants, overalls, cloaks, shirts, purses, feathers, artificial flowers, or cigars, which have been made in a tenement-house, used as a workshop, as specified in section 1 of this act, shall have affixed to each of said garments a tag or label, not less than two inches in length and one inch in width, upon which shall be legibly printed, or written, the name of the State and the city or town where said article or articles were made. Section 5. No person shall sell, or expose for sale, any of said articles, without a tag or label, as aforesaid, affixed thereto, nor shall sell, or expose for sale, any of said articles with a tag or label in any manner false or fraudulent, nor shall wilfully remove, alter or destroy, any such tag or label upon any of said articles when exposed for sale. N. Y. L. 1887, chaps. 377, 401; 1890, chap. 25: 1888. chap. 181: Monroe D. Assn. v. Stanley, 20 N. Y. Supp. 19; People v. Cannon, 54 N. Y. St. R. 431; People v. Arensberg, 105 N. Y. 123; Lawton v. Steele, 119 N. Y 226.

THE LIMITATION OF POLICE POWERS AND ALSO THEIR LIMITING EFFECT.

No unlimited law or authority exists even in a despotic government. In a constitutional government, limitation is the abiding principle, exhibited in its highest form in the Constitution, as the deliberative judgment of the people, moderating every claim of right or use of power. This observation is not applicable to written constitutions alone, but in one form or another will be found under the common law. Rarely, as Lord Coke and Chief Justices Hobart and Holt expressed it, the common law adjudged acts of Parliament void when against common right or reason; but more frequently the courts used that other form of interpretation wherein they determine the possible and reasonable construction, so that any injury or absurd consequences shall be avoided.' We have had occasion to follow this latter mode in the Girard Will case in our country, and in English cases, discussed in preceding pages, e. g., Attorney-General v. Cockermouth Local Board, and Blakemore v. Glamorganshire Canal Navigation. In the last-mentioned case acts of Parliament were regarded in the light of contracts made by the legislature, on behalf of everybody interested, so that, as Lord Eldon said, they might not become instruments of oppression. Lord Chancellor Brougham said, since this decision it has been judicially held, "that the canal could not be altered even within the limits allowed by earlier acts." The Vice-Chancellor said, in Samson v. Smith: "In a case so constituted, I do not see, if the Attorney-General were a party, that I could make a decree that would bind the question between the defendant and the public." Thus, while we have seen the rights appertaining to the soil, to water, to air, and light and ventilation, even the

11 Kent Com. 447, 448; 18 Eq. Cas. (L. R.) 176, 177; 7 Eng. Ch. 162, 186; Lord Auckland v. Westminster L. Bd. of W., 7 Chan. App. Cas. 597; Farrington v. Tennessee, 95 U. S. 683, 684; King v. Passmore, 3 T. R. 199; see limitations on restriction of hospital for small-pox patients, Wittington B. of H. v. Corporation of Manchester. 68 Law Times (N. S.), 337; 48 Alb. L. J. 19; and as to private asylums for insane, Ex parte Whitwell, 32 Pac. R. 870.