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it is rich in some of its departments, particularly books. It unnecessary to discuss what are post-revolutionary statute law.

practical law books, but it may be assumed that the Few appreciate the great amount of labor which best practical results cannot be divorced from the is involved in the collection of complete sets of the best methods of technical investigation. statutes of the various States and Territoies of the Were any society of professional men to deterUnited States. In some cases the States themselves mine to collect all the works, pamphlets and papers do not possess complete sets of their own printed which tended to show the influence of the law of laws. The mere collecting of the laws entails sound nature, so called, or of the French ideas of knowledge of imprints, of history, of special Rousseau upon the Constitution and legal developbranchesofinvestigation, besides untiring persistence. ment of the United States, and bequeath the reVolumes come from odd places oftentimes, and only sults to some one of the law libraries of the State, collectors know the trouble of completing sets of what a legacy it would be for future generations. early laws. Certainly great credit is due to those of So if other special inquirers would genuinely interour librarians who have some regard to the charac- est themselves in the increase of the various law ter of the institution over which they preside. libraries, if it were only to furnish complete lists of Without system and knowledge a library may be. authors to the catalogue of some institution, much come a positive disadvantage rather than an advan- more could be done than is now being done for the tage to professional work. No one can pretend improvement of 'lawyers' tools' in this State. that a trifling or incomplete collection of books has We have hastily indicated some regions in which permanent value.

the exuberance of professional activity may rationFine as the New York Law Institute library, or

ally exercise itself. As matter of fact the interest any other of our libraries, really is, it can only be in any of the matters indicated is confined to a very made world-renowned by the active co-operation of small portion of the bar; so small a portion as to numerous students in special fields of inquiry. No sin- be a frequent cause of comment. We earnestly urge gle librarian can make a great library by himself, were upon lawyers to cease their petty opposition to codia Scaliger or a Muratori.

We have men- fication, and to devote themselves to making some tioned only one of the several good features of the improvement in the 'intellectual tools' with which New York Law Institute library; it has many others; their profession is concerned. Then, and not until notably the manuscript opinions of that great prac- then, will they cease from factional disputation tical lawyer, Mr. O'Conor, opinions which will some about codification, a discussion about as practical as day rank with the responsa of the Roman juriscon- that between the realists and nominalists which for sults. This library is likewise well and intelli

centuries troubled the philosophers. gently catalogued, and the librarians have private indexes, un published, which are of literary value, as

CONSTITUTIONAL LAW-PROHIBITION OF CIGAR any one who has had access to them will testify.

MAKING IN TENEJENT HOUSES. But it would be needless to deny that even the library of the New York Law Institute, as we said,

NEW YORK COURT OF APPEALS, JAN., 1885. perhaps the best of all our law libraries, is next to

IN THE MATTER OF JACOBS. useless for certain special inquiries, and it is through special inquirers that any profession takes

A statute prohibiting cigar making in any tenement house

occupied by more than three families, in cities having high scientific rank. Story could not have written more than 500,000 inbabitants, is unconstitutional. his commentary on the Constitution there, for in Application for habeas corpus and certiorari. The opinion the department of early constitutional law and ma- states the facts. terial it is deficient; nor could Wheaton have sat Peter B. Olney, for people. in some quiet alcove of this great library and have Wm. M.Evarts, A. J. Dittenhoefer and Morris S. Wise, written his treatise on international law. This li- for relator. brary would be also next to useless to a student of EARL, J. The relator, Jacobs, was arrested on the comparative jurisprudence, and the comparative 14th day of May, 1884, on a warrant issued by a police methods of jurisprudence are now conceded to be justice in the city of New York under the act, ch. 272, the best of all, and likely to produce the highest re

of the Laws of 1884, passed May 12, entitled "An

act to improve the public health by prohibiting the sults. In the department of legal philosophy the manufacture of cigars and preparation of tobacco in law institute makes no professions whatever, and any form in tevement houses in certain cases, and get the absurdity of a great law library which has regulating the use of tenement houses in certain no reference to philosophy must be apparent. Fancy

cases." On the evidence of the complainant he was a Roman law library which contained no treatise by by the justice committed for trial, and thereafter

upon his petition a justice of the Supreme Court a Stoic, or an English law library with no copy of

granted a writ of habeas corpus to which a return Hobbes, with even no first imprint of such a great was made, and upon the hearing thereon the justice institutional writer as Blackstone, whose every gen

made an order dismissing the writ and remanding him uine word had current political and technical value.

to prison. From that order he appealed to the GenYet the Law Institute committee refused to buy the

eral Term of the Supreme Court, which reversed the first edition of Blackstone's Commentaries, because

order and discharged him from prison, on the ground

that the act under which he was arrested was unconthey wanted not editions, but sound practical law stitutional, and therefore void. The district attorney



on behalf uf the people then appealed to this court, maintain his hold aud to survive. He may go to a and the sole question for our determination is whether tenement house, and finding no one living, sleeping, the act of 1884, creating the offense for which the re- cooking or doing any household work upon one of tho lator was arrested, was a constitutional exercise of leg- floors, hire a room upon such floor to carry on his islative power.

trade, and afterward some one may commence to sleep The facts as they appeared before the police justice or to do do some household work upon such floor, were as follows: The relator at the time of his arrest even without his knowledge, and he at once becomes lived with his wife and two children in a tenement a criminal in consequence of another's act. He may house in the city of New York, in which three other go to a tenement house and finding but two families families also lived. There were four floors in the living therein independently, hire a room, and afterhouse, and seven rooms on each floor, and each floor ward by sub-division of the families, or a change in was occupied by one family living independently of their mode of life, or in some other way, a fourth the others, and doing their cooking in one of the family begins to live therein independently, and thus rooms so occupied. The relator at the time of his he may become a criminal without the knowledge or arrest was engaged in one of his rooms in preparing possibly of the means of knowledge that he was violattobacco aud making cigars, but there was no smell of ing any law. It is therefore plain that this law intertobacco in any part of the house except the room feres with the profitable and free use of his property where he was thus engaged.

by the owner or lessee of a tenement house who is a These facts showed a violation of the provisions of cigar maker, and trammels him in the application of the act which took effect immediately upon its pas- his industry and the disposition of his labor, and thus sage and the material portion uf which was as fol- in a strictly legitimate sense it arbitrarily deprives lows:

him of his property and of some portion of his per" Section 1. The manufacture of cigars or prepara

sonal liberty. tiou of tobacco in any form on any floor, or in any The constitutional guaranty, that no person shall be part of any floor, in any tenement house is hereby deprived of his property without due process of law prohibited, if such floor or any part of such floor is by may be violated without the physical taking of propany person occupied as a home or residence for the erty for public or private use. Property may be depurpose of living, sleeping, cooking, or doing any stroyed, or its value may be annihilated; it is owned household work therein.

and kept for some useful purpose and it has no value Sec. 2. Ang house, building, or portion thereof, oc- unless it can be used. Its capability for enjoyment cupied as the home or residence of more than three and adaptability to some use are essential characterfamilies living independently of one another, and do. istics and attributes without which property cannot be ing their cooking upon the premises, is a teuement conceived; and hence any law which destroys it or its house within the nieaning of this act.

value, or takes away any of its essential attributes, Sec. 3. The first floor of said teuement house on deprives the owner of his property. The constituwhich there is a store for the sale of cigars and tobacco tional guaranty would be of little worth if the Legisshall be exempt from the prohibition provided in sec- lature could, without compensation, destroy property tion que of this act.

or its value, deprive the owner of its use, deny him the Sec. 5. Every person who shall be found guilty of a right to live in his owu bouse or to work at any lawviolation of this act, or of having caused another to ful trade therein. If the Legislature has the power commit such violation, shall be deemed guilty of a under the Constitution to prohibit the prosecution of muisdemeanor, and shall be punished for every offense oue lawful trade in a tenant house, then it may preby a fine of not less than $10 and not more than $100, vent the prosecution of all trades therein, or by imprisonment for not less than ten days and not Questions of power," says Chief Judge Marshall in more than six months, or both such fine aud impris. Brown v. State of Maryland, 12 Wheat, 419, “do not onment.

depend upou the degree to which it may be exercised. Sec. 6. This act shall apply only to cities having over If it may be exercised at all it must be exercised at the 500,000 inhabitants."

will of those in whose hands it is placed.” Blackstono What does this act attempt to do? Iu form it in his classification of fundamental rights says: “The makes it a crime for a cigar maker in New York and third absolute right inherent in every Englishman is Brooklyu, the only cities in the State having a popula- that of property, which consists in the free use, enjoy. tion exceeding 500,000, to carry on a perfectly lawful ment and disposal of all his acquisitions without any trade in his own home. Whether he owns the tene- control or diminution, save only by the law of the meut house or has hired a roon therein for the pur- land." 1 Com. 138. pose of prosecuting his trade, he cannot manufacture lu Pumpelly v. Green Bay Co., 13 Wall. 177, Miller, therein his own tobacco into cigars for his own use or J., says: “There may be such serious interruption to for sale, and he will become a criminal for doing that the common and necessary use of property as will be which is perfectly lawful, outside of the two cities equivalent to a taking within the meaning of the Connamed, every where else, so far as we are able to learn, stitution.” in the whole world. He must either abandon the trade In Wynehamer v. People, 13 N. Y. 378, 398, Comby which he earns a livelihood for himself and family, stock, J., says: “When a law annihilates the value or if able, procure a room elsewhere, or hire himself of property and strips it of its attributes by which out to one who has a room upon such terms, as under alone it is distinguished as property, the owner is dethe fierce competition of trade and the inexorable prived of it according to the plainest interpretation, laws of supply and demand, he may be able to obtain and certainly within the constitutional provision infrom his employer. He may choose to do his work tended expressly to shield personal rights from the where he can have the supervision of his family and exercise of arbitrary power.” their help, and such choice is denied bim. He may In People v. Otis, 90 N. Y. 48, Andrews, J.,

says: choose to work for himself rather than for a task- “Depriving an owner of property of one of its attrimaster and he is left without freedom of choice. He butes is depriving him of his property within the coumay desire the advantage of cheap production in con- stitutional provision." sequence of his cheap rent and family help, and of So too one may be deprived of his liberty and his this he is deprived. In the unceasing struggle for suc- constitutional rights thereto violated without the aocess and existence which pervades all societies of men, tual imprisonment or restraint of his person. Liberty he may be deprived of that which will enable him to in its broad sense, as understood in this country, means

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the right, not only of freedom from actual servitude, guide for the conduct of legislators, judges and priimprisonment, or restraint, but the right of one to vate persons, aud so far as it imposes restraint the use bis faculties in all lawful ways, to live and work police power must be exercised in subordination where he will, to earn his livelihood in any lawful thereto. Judge Cooley, speaking of the regulation by calling, and to pursue any lawful trade or avocation. the Legislature under the police power of the conduct All laws therefore which impair or trammel these of corporations holding inviolable charters, says: rights, which limit one in his choice of a trade or pro. “ The limit to the exercise of the police power in fession, or confine him to work or live in a specified these cases must be this: the regulations must have locality, or exclude him from his own house, or re- reference to the comfort, safety and welfare of society, strain his otherwise lawful movements (except as such they must not be in conflict with any of the provislaws may be passed in the exercise by the Legislature ions of the charter, and they must not under pretense of the police power, which will be noticed later) are of regulation take from the corporation any of the esinfringements upon his fundamental rights of liberty sential rights and privileges which the charter conwhich are under constitutional protection.

fers. In short they must be police regulations in In Butcher's Union Comyuny v. Crescent City Co., fact and not amendments of the charter in curtail111 U. S. 746, Field, J., says: That among the in- ments of the corporate franchise.” Con. Lim. (4th alienable rights as proclaimed in the declaration of ed.) 719. independence " is the right of men to pursue any law

In Potter's Dwarris on Stat. 458, it is said, that "the ful business or vocation in any manner not inconsist

limit to the exercise of the police power can only be ent with the equal rights of others, wbich may in

this: the legislation must have reference to the comcrease their property or develop their faculties, so as

fort, the safety or the welfare of society; it must not to give them their highest enjoyment. The common

be in conflict with the provisions of the Constitubusiness and callings of life, the ordinary trades and tion." pursuits which are innocent in themselves and have

In Commonwealth v. diger, 7 Cush. 84, Shaw, C. J., been followed in all communities from time immemorial, must therefore be free in this country to all alike

says, that the police power "was vested in the Legis

lature by the Constitution, to make, ordain, and es. upon the same terms. The right to pursue them with

tablish all manner of wholesome and reasonable lawe, out let or hindrance, except that which is applied to

statutes and ordinances, either with pevalties or withall persons of the same age, sex, and condition, is a distinguishing privilege of citizens of the United

out, not repugnant to the Constitution, as they shall

judge to be for the good and welfare of the CommonStates, and an essential element of that freedom which they claim as their birthright." In the same

wealth, and of the subjects of the same. It is much case Bradley, J., says: “I bold tbat the liberty of

easier to perceive and realize the existence and sources

of the power than to mark its limitations or prepursuit-the right to follow any of the ordinary callings of life—is oue of the privileges of a citizen of the

scribe limits for its exercise." United States," of which he cannot be deprived with

In Austin v. Murray, 16 Pick. 121, 126, it is said: out invading bis right to liberty within the meaning of

“The law will not allow the rights of property to be the Constitution.

invaded under the guise of a police regulation for the In Live Stock, etc., Association v. Crescent City, etc.,

promotion of health when it is manifest that such is Co., 1 Abb. U. S. 398, the learned presiding jus

not the object and purpose of the regulation." tice says: “There is no more sacred right of citizen

In Watertvion v. Mayo, 109 Mass. 315, 319, Colt, J., ship than the right to pursue unmolested a lawful

says: “The law will not allow rights of property to employment in a lawful mamyer. It is nothing more

be invaded under the guise of a police regulation for nor less than the sacred right of labor."

the preservation of health or protection against a In Wynehamer v. People, Johnson, J., says: “That

threatened puisance, and when it appears that such is a law which should make it a crime for men either to

not the real object and purpose of the regulation, live in, or rent, or sell their houses," would violate the

courts will interfere to protect the rights of the citiconstitutional guaranty of personal liberty.

zeit. In Bertholf v. O'Reilly, 74 N. Y. 509, 515, Andrews,

In the Slaughter-House cases, 16 Wall. 36, 87, Field, J., says, that one could be deprived of his liberty in

J., says: "All sorts of restrictions and burdens are a constitutional sense without putting his person in

imposed under the police powers, and when these are confinement," and that a mau's right to liberty in

pot in coutlict with any constitutional probibitions or cludes "the right to exercise his faculties and to fol

fundamental principles they cannot be successfully low a lawful avocation for the support of life."

assailed in a judicial tribunal.

But under But the claim is made that the Legislature could

the pretense of prescribing a police regulation, the pass this act in the exercise of the police power which

State cannot be permitted to encroach upon any of every sovereign State possesses. That power is very

the just rights of the citizen which the Constitution broad and comprehensive, and is exercised to promete "In Coe v. Shultz, 47 Barb. 64, a learned judge speak

intended to secure against abridgmeut." the health, comfort, safety, and welfare of society. Its exercise in extreme cases is frequently justified by ing of the constitutional limitations upon the police the maxim salus populi zuprema let. It is used to power says: “I am not willing to concede that the regulate the use of property by enforcing the maxim Legislature can constitutionally declare an act or sic utere tuo ut alienum non laedas. Under it the con- thing to be a common Duisance which palpably, acduct of an individual and the use of property may be cording to our preseut experience or information, is regulated so as to interfere, to some extent, with the not and cannot be under any circumstances a common freedom of the one and the enjoyment of the other;

nuisance. By the common-law definitions or communand in cases of great emergency engendering overrul- law decisions, I am not willing to conclude tbat the ing necessity, property may be taken or destroyed Legislature can constitutionally declare or authorize without compensation, and without what is commonly any sanitary commission or board to declare the keepcalled due process of law. The limit of the power can- ing or the use in any way of sugar or vinegar to be a not be accurately defined, and the courts have not common nuisance because the one is sweet and the been able, or willing definitely to circumscribe it. other sour, or for any other reason. By such an unBut the power, however broad and extensive, is not limited power it is easy to see that any citizen might above the Constitution. When it speaks its voice be deprived of his property without compensation, must be heeded. It furnishes the supreme law, the

and without any colorable pretext that the public

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good required such deprivation." See also in the Mat- 66 id. 569; Matter of Eureka Basin Warehause & Manter of Cheesebrough, 78 N. Y. 232.

ufacturing Co., 96 id. 42. The general government is These citations are sufficient to show that the police one of limited powers particularly specified in the power is not without limitation, and that in its exer- Federal Constitution. But in addition to the powers cise the Legislature must respect the great fundamento granted it is provided in the Constitution that Copal rights guaranteed by the Constitution. If this gress shall bave power “to make all laws which shall were otherwise the power of the Legislature would be be necessary and proper for carrying into exeoution practically without limitation. In the assumed exer- the foregoing powers.” Under this provision Congress cise of the police power in the interest of the health, is not the final judge of what is necessary and proper," the welfare or the safety of the publio, every right of but its laws must have a legitimate end in view, must the citizou might be invaded and every constitutional be within the scope of the Constitution, must be apbarrier swept away.

propriate and plainly adapted to that end, and not Generally it is for the Legislature to determine what probibited by, but consistent with the letter and laws and regulations are needed to protect the public spirit of the Constitution, and whether the laws passed health and secure the public comfort and safety, and under the implied powers contained in the section while its measures are caloulated, intended, conven- cited are of the character mentioned, and thus justiient and appropriate to accomplish these ends, the ex- fied, is always open to judicial inquiry. McCulloch r. ercise of its discretion is not subject to review by the Muryland, 4 Wheat. 4:21; Hepburn v. Griswold, 8 Wall. courts. But tbey must have some relation to these 603; Legal Tender cases, 12 id. 457; Legal Tender cases, ends. Under the mere guise of police regulations 110 U. S. 421. personal rights and private property cannot be arbi- If it were for Congress to determine when thesim. trarily invaded, and the determination of the Legisla- plied or incidental powers should be exercised, it! ture is pot final or conclusive. If it passes an act os- powers would be without any restraint and instead of tensibly for tbe public health, and thereby destroys being a body with limited powers, it would in its own or takes away the property of a citizen, or interferes discretion have general and unlimited power of legiswith his personal liberty, then it is for the courts to lation. “Whatever meaning,” says Mr. Madison (1 scrutinize the act and see whether it really relates to Annals of Congress, 1848), “the clause of the Consti. and is convenient and appropriate to promote the pub- tution conferring all necessary and proper means to lic health. It matters not that the Legislature may in carry into effect the enumerated powers may have, the title to the act, or in the bady declare that it is none could be admitted that would give an unlimited 'intended for the improvement of the public health. discretion to Congress ;” and in Marbury v. Madison, Such a declaration does not conclude the courts, and 1 Cranch, 137, Marshall, C. J., says: “To what purthey must yet determine the fact declared and enforce pose are limitations committed to writing if those the supreme law.

limits may at any time be passed by those intended to In Matter of Ryers, 72 N. Y. 1, Folger, J., speaking be restrained? The distinction between a governof the Drainage Act then under consideration, says: ment with limited and unlimited powers is abolished " The legislature has done no more thau the Constitu- if those limits do not confine the persons on whom tion permitted in providing in general terms a way they are imposed." These citations are apt to show for the promotion and preservation of the public how the police power may and how it ought not to be health. It is still for the judiciary to see to it that exercised, and how far its exercise is subject to judicial each occasion presents the necessity for the work, and inquiry. A law enacted in the exercise of the police that the purpose to be reached is public."

power must in fact be a police law. If it be a law for In Town of Lake View v. Rose Hill Co , 70 III. 191, the promotion of the public health, it must be a health the court speaking of the police powers says: “As a law, having some relation to the public health. general proposition, it may be stated, it is in the prov- We will now once more recur to the law under conince of the law-making power to determine whether sideration. It does not deal with tenement houses as the exigencies exist calling into exercise this power. such; it does not regulate the number of persons who What are the subjects of its exercise is clearly a ju- may live in any one of them, or be crowded into ono dicial question.” Even the power of taxation which room; nor does it deal with the mode of their construcis one of the broadest possessed by the Legislature, is tion for the purpose of securing the health and safety not without its limitations, and its action in reference of their occupants or of the public generally. It deals thereto may be scrutinized by the court; and that mainly with the preparation of tobacco and the manuwhich is done under the guise of taxation may be con- facture of cigars, and its purpose obviously was to regdemned as sheer spoliation and confiscation without ulate them. We must take judicial notice of the 18due process of law. Weismer v. Village of Douglass, ture and qualities of tobacco. It has been in general 64 N. Y. 91; Stuart v. Palmer, 74 id. 183; People v. use among civilized men for more than two centuries. Equitable Trust Co., 96 id. 387. The Legislature may It is used in some form by a majority of the men in condemn or authorize the condemnation of private this State; by the good and bad, the learned and unproperty for public ise, and it may in the exercise of learned, the rich and the poor. Its manufacture into its discretion determine when and upon what prop- cigars is permitted without any hindrance, except for erty the power of eminent domain may be exercised; revenue purposes, in all civilized lands. It has never but its exercise is not beyond the reach of judicial in- been said, so far as we can learn, and it was not alquiry. Whether or not a use is a public one which firmed even in the argument before us, that its preparawill justify the exercise of the power is a judicial ration and manufacture into cigars were dangerous to question. It may be ditficult sometimes to determine the public health. We are not aware,and are not able to whether a use is public or private. Although the Leg- learn, that tobacco is even injurious to the health of islature may declare it to be public, that does not nec- those who deal in it, or are engaged in its production essarily determine its character; must in fact be or manufacture. We certainly know enough about it public, and if it be not, io legislative fiat can make it to be sure that its manipulation in one room can pro80, and any owner of property attempted to be taken duce no harm to the health of the occupants of other for a use really private can invoke the aid of the rooms in the same house. It was proved in this case courts to protect his property rights against invasion. that the odor of the tobacco did not extend to any of Rockwell v. Nearing, 35 N. Y, 302; Matter of Townsend, the other rooms of the tenement house. 39 id. 171; Matter of Deansville Cemetery Association, Mr. Secretary McCulloch, in his late annual report

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to Congress, in which he recommends the removal of When a health law is challenged in the courts as un.
the internal tax from tobacco, that it might thus be constitutional, on the ground that it arbitrarily inter-
placed upon a footing with other agricultural products, feres with personal liberty and private property with-
says: "Au article which is so generally used, and out due process of law, the courts must be able to
which adds so much to the comfort of the large num- see that it has at least in fact some relation to the pub-
bers of our population who earn their living by man- lic health, that the public health is the end actually
ual labor, cannot properly be considered a luxury.” aimed at, and that it is appropriate and adapted to that

To justify this law it would not be sufficient that the end.
use of tobacco may be injurious to some persons, or This we have not been able to see in this law, and we
that its manipulation may be iujurious to those who must therefore pronounce it unconstitutional and void.
are engaged in its preparation and manufacture; but In reaching this conclusion we have not been upmind-
it would have to be injurious to the public health. ful that the power which courts possess to condemn
This law was not intended to protect the health of legislative acts which are in conflict with the supremo
those engaged in cigar-making, as they are allowed to law, should be exercised with great caution and even
manufacture cigars everywhere except in the forbid- with reluctance. But as said by Chancellor Kent (1
den tenement houses.

Com. 450): “It is only by the free exercise of this
It canuot be perceived how the cigar-maker is to be power that courts of justice are enabled to repel as-
improved in his healtb or his morals by forcing him saults and to protect every part of the government and
from his home and his hallowed associations and bene- every member of the community from uuduo and de-
ficent influences, to ply his trade elsewhere. It was structive innovations upon their charter rights.
not intended to protect the health of that portion of The order should be affirmed.
the public not residing in the forbidden tenement All concur.
houses, as cigars are allowed to be manufactured in
private houses, in large faotories and shops in the two

CONSTITUTIONAL LAW-JUSTICES OF PEACE crowded cities, and in all other parts of the State. What possible relation can cigar-making in any build.

ACTING AFTER SEVENTY YEARS OF AGE. ing have to the health of the general public ? Nor was

NEW YORK COURT OF APPEALS, JAN., 1885. it intended to improve or protect the health of the occupants of tenement houses. If there are but three families in the tenement house, however numerous

LAWRENCE V. MANN. and gregarious their members may be, the manufac- One is competent to hold the office of justice of the ture is not forbidden, and it matters not how large the peace although he is more than seventy years old. number of the occupants may be if they are not divi


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iled into more than three families living and cooking THE opinion states the case.

. If a store is kept for the sale of cigars on the first ANDREWS, J. Section 12 of article 6 of the Constitufloor of one of these houses, and thus more tobacco is

tion mentions the Supreme Court of the City of kept there than otherwise would be, and the baneful

New York, the Court of Common Pleas of the same influences of tobacco, if any, is thus increased, that

city, the Supreme Court of Buffalo and the City Court floor, however numerous its occupants, or the ocou

of Brooklyn, and continues them in existence by expants of the house, is exempt from the operation of press constitutional mandate. Section 13 is as follows: the act.

“Justices of the Supreme Court shall be chosen by the What possible relation to the health of the occu

electors of their respective election districts. Judges pants of a large tenement house could cigar-making in

of all courts mentioned in the last preceding section one of its remote rooms have? If the Legislature had

shall be chosen by the electors of the cities respect. in mind the protection of the occupants of tenement

ively in which said courts are instituted. The official houses, why was the act confined in its operation to the terms of the said justices and judges who shall be two cities only? It is plain that this is not a health

elected after the adoption of this article shall be fourlaw, and that it has no relation whatever to the public teen years from and includiug the first day of Januhealth. Under the guise of promoting the public ary next after their eleotion. But no person shall health the Legislature might as well have banished

hold the office of justice or judge of any court longer cigar making from all the cities of the State, or con

than until and including the last day of December fined it to a single city or town, or have placed under

next after he shall be seventy years of age." a similar ban the trade of a baker, of a tailor, of a shoe- The question presented is whether the limitamaker, of a wood-carver, or of any other of the innoc

tion of


contained in this section apuous trades carried on by artisans in their own homes. plies to justices

of the peace.

That it does The power would have been the same, and its exercise,

apply has

been determined by the judg. 80 far as it concerns fundamental constitutional rights, ment now under review. The same question was concould have been justified by the same arguments.

sidered by the General Term of the Fourth DepartSuch legislation may invade one class of rights to-day,

ment in the case of the People v. Dohring, 2 Sup. Ct. and another to-morrow, and if it can be sanctioned Rep. 458, and was determined the other way. The under the Constitution, wbile far removed in time we Dohring case was decided in 1873, and the question will not be far away in practical statesmanship from now presented for the first time in this court bag those ages when governmental prefects supervised the never, so far as we can ascertain, been considered in building of houses, the rearing of cattle, the sowing of the courts below, except in that case and the one now seed, and the reaping of grain, and goverumental ordi- before us, which was first decided at Special Term in pances regulated the movements and labor of arti. January, 1884. It has come to the knowledge of the sans, the rate of wages, the price of food, the diet and court from official sources that since the adoption of clothing of the people, and a large range of other affairs the present judiciary article of the Constitution many long since in all civilized lands regarded as outside of persons in different parts of the State have been governmental functions. Such governmental inter- elected justices of the peace who have served after ferences disturb the normal adjustments of the social having attained the age of seventy years, some having fabric, and usually derange the delicate and compli- been elected before and others after they had reached cated machinery of industry, and cause a score of ills that age. The question is therefore important, not while attempting the removal of on..

only because it involves the interpretation of a conati


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