NEW YORK. 



625 



Pro., 429. Twenty-fifth Hiscock, Repub., 

 14,599 ; Wieting, Dem., 11,174; Stratton, Pro., 

 315. Twenty-sixth Carnp, Repub., 14,355 ; 

 Durston, Dem., 1,638; Walley, Nat., 10,979. 

 Twenty-seventh Lapham, Repub., 12,270 ; 

 Pierpont, Dem. and Nat., 10,232 ; Howell, Pro., 

 24. Twenty-eighth D wight, Repub., 15,569; 

 Mudge, Dem., 1,883; Howe, Nat., 11,162. 

 Twenty-ninth Richardson, Repub., 14,330 ; 

 Babcock, Dem., 10,960 ; Beaumont, Nat., 8,174. 

 Thirtieth Voorhis, Repub., 12,008 ; VanLam- 

 berton, Dern., 10,367; Brown, Nat., 2,760. 

 Thirty-first Crowley, Repub., 12,529 ; Davis, 

 Dem., 8,713; Miller, Nat., 559. Thirty-sec- 

 ond Pierce, Repub., 18,998 ; Lockwood, Dem., 

 16,105; G-rote, Nat, 1,192. Thirty-third 

 Van Aernam, Repub., 11,364; Morris, Dem., 

 6,732; Vinton, Nat., 4,689. 

 The State Legislature was divided as follows : 



An important decision of a case involving 

 the constitutionality of what is known as the 

 " civil damages act " was decided by the Court 

 of Appeals during the year. It is known as 

 Samuel Bertholf agt. James O'Reilly. The ac- 

 tion was brought by the plaintiff against the 

 defendant as the landlord of hotel premises, 

 let with knowledge that intoxicating liquors 

 were to be sold thereon by the lessee, to re- 

 cover the value of a horse owned by the plain- 

 tiff, which died in consequence of having been 

 overdriven by the plaintiff's son while in a 

 state of intoxication produced in part by liquor 

 sold him by the lessee at his bar on the lease! 

 premises. The opinion of the Court was deliv- 

 ered by Judge Andrews. He said : 



It can not be disputed that the facts found bring 

 the case within the terms of the statute, and author- 

 ize the recovery, if the law itself is valid. (" An act 

 to suppress intemperance, pauperism, and crime," 

 passed April 29, 1878.) The act gives to every hus- 

 band, wife, parent, guardian, employer, or other per- 

 son " who shall be injured in person or property, or 

 means of support, by any intoxicated person, or in 

 consequence of the intoxication " of any person, a 

 right of action against any person who shall, by 

 selling or giving away intoxicating liquors, have 

 caused the intoxication, in whole or in part ; and 

 declares that " any person or persons owning or 

 renting, or permitting the occupation of any build- 

 ing or premises, and having knowledge that intoxi- 

 cating liquors are to be sold thereon, shall be liable, 

 severally and jointly, with the person or persons 

 selling or giving intoxicating liquors aforesaid, for 

 all damages sustained, and for exemplary damages." 



The question we are now to determine is, whether 

 the Legislature has the power to create a cause of 

 action for damages in favor of a person injured in 

 person or property by the act of an intoxicated per- 

 son, against the owner of real property, whose only 

 connection with the injury is that he leased the prem- 

 ises where the liquor causing the intoxication was 

 sold or given away, with knowledge that intoxicat- 

 ing liquors were to be sold thereon. The question 

 VOL. XTIII. 40 A 



whether the act under consideration is a valid exer- 

 cise ot'legislative power is to be determined solely 

 by reference to constitutional restraints and prohi- 

 bitions. The legislative power has no other limita- 

 tion. If an act can stand when brought to the test 

 of the Constitution, the question of its validity is ac 

 an end, and neither the executive nor judicial de- 

 partment of the government can refuse to recognize 

 or enforce it. The main guarantee of private rights 

 against unjust legislation is found in that memorable 

 clause in the Bill of Rights, that no person shall " be 

 deprived of life, liberty, or property without due 

 process of law." (Const., art. 1, sec. 6.) This guar- 

 antee is not construed in any narrow or technical 

 sense. The right of life may be invaded without its 

 destruction ; one may be deprived of his liberty in 

 a constitutional sense without putting his person in 

 confinement ; and property may be taken without 

 manual interference therewith, or its physical de- 

 struction. The broad question is presented, wheth- 

 er the act transcends the limits of legislative power 

 in subjecting a landlord to liability, under the cir- 

 cumstances mentioned in the act. Does the act, in 

 effect, deprive him of his property without " due 

 process of law," in the sense of the Constitution? 



That a statute impairs the value of property does 

 not make it unconstitutional. All property is held 

 subject to the power of the State to regulate or con- 

 trol its use, to secure the general safety and the pub- 

 lic welfare. " We think it a settled principle," says 

 Chief Justice Shaw, in Commonwealth agt. Alger, 7 

 Gush., 84, " growing out of the nature of well-or- 

 dered civil society, that every holder of property, 

 however absolute and unqualified may be his title, 

 holds it under the implied liability that his use shall 

 not be injurious to the equal enjoyment of others 

 having an equal right to the enjoyment of their 

 property, nor injurious to the rights of the commu- 

 nity. All property is held subject to those general 

 regulations which are necessary to the common good 

 and general welfare." Judge Eedfield, in a passage 

 often cited with approval, speaking of the police pow- 

 er, says : u By this general police power of the State 

 persons and property are subjected to all kinds of 

 restraints and burdens, in order to secure the gen- 

 eral comfort, health and prosperity of the State ; of 

 the perfect right of the Legislature to do which no 

 question ever was or upon acknowledged general 

 principles can be made." (Thorpe agt. Eut. and 

 Burl. E. E. Co., 27 Vt., 140.) The police power, so 

 called, inheres in every sovereignty, and is essential 

 to the maintenance of public order and the preser- 

 vation of mutual rights from the disturbing conflicts 

 which would prevail in the absence of any control- 

 ling, regulating authority, and has been constantly ex- 

 ercised by the Legislature in a great variety of cases. 

 In the Slaughter-House cases, 16 Wall., 36, the 

 Supreme Court of the United States held that the 

 art entitled " An act to protect the public health," 

 etc., was valid as a police regulation. That the act 

 seriously interfered with the prosecution of a law- 

 ful business by a large number of people, and great- 

 ly impaired the value of slaughter-house property, is 

 evident. But the majority of the Court were of the 

 opinion that the act was not void, either as creating 

 a monopoly, or as depriving the persons affected by 

 it of their property, within the meaning of the Con- 

 stitution. 



In Munn agt. The State of Illinois, 4 Otto, 114, the 

 Court sustained an act of the Legislature of Illi- 

 nois prescribing a maximum rate of charges for 

 the handling of grain in warehouses in that State, 

 and requiring warehouses to procure a license, and 

 authorizing its revocation, and prohibiting the car- 

 rying, on the business of warehousing gram in any 

 warehouse without such license, or after its revoca- 

 tion. The act was held to be valid as well as to 

 warehouses built before as to those which might be 

 built after the act was passed. The right of the 

 State to make the regulations contained in the acts 



