LAW, CONSTITUTIONAL. (POLICE POWER OF STATES.) 



431 



necessary for general benefits for supplying water, 

 preventing fires, lighting districts, cleaning streets, 

 opening parks, and many other objects. Regulations 

 for these purposes may press with more or less weight 

 upon one than upon another, but they are designed, 

 not to impose unequal or unnecessary restrictions 

 upon any one, but to promote, with as little individual 

 inconvenience as possible, the general good. Though, 

 in many respects, necessarily special in their charac- 

 ter, they do not furnish just ground of complaint if 

 they operate alike upon all persons and property un- 

 der the same circumstances and conditions. Class 

 legislation, discriminating against some and favoring 

 others, is prohibited, but legislation which, in carry- 

 ing out a public purpose, is limited in its application, 

 if within the sphere of its operation it affects alike all 

 persons similarly situated, is not within the amend- 

 ment. 



In the execution of admitted powers unnecessary 

 proceedings arc often required which are cumbersome, 

 dilatory, and expensive, yet, if no discrimination 

 against any one be made and no substantial right be 

 impaired by them, they are not obnoxious to any con- 

 stitutional objection. The inconveniences arising in 

 the administration of the laws from this cause are 

 matters entirely for the consideration of the State ; 

 they can be remedied only by the State. In the case 

 before us the provisions requiring certificates from the 

 health officer and the Board of Fire Wardens may, in 

 some instances, be unnecessary, and the changes to 

 be made to meet the conditions prescribed may be 

 burdensome ; but, as we have said, this is a matter for 

 the determination of the municipality in the execution 

 of its police powers, and not a violation of any sub- 

 stantial right of the individual. 



III. The Tenement- House Cigar Law. One 

 of the most important of recent opinions on the 

 subject of the police power of States was ren- 

 dered Jan. 20, 1885, by the New York Court 

 of Appeals the highest court of the State- 

 in the tenement-house cigar case, in which it 

 declared unconstitutional the statute passed by 

 the Legislature of that State in the preceding 

 May. This statute was entitled "An act to 

 improve the public health by prohibiting the 

 manufacture of cigars and preparation of to- 

 bacco in any form in tenement-houses." The 

 act applied only to New York city and Brook- 

 lyn, where many thousands of persons make 

 cigars in the tenement-houses in which they 

 live. The opponents of the measure alleged 

 that its purpose was not the promotion of the 

 public health, but the protection of the to- 

 bacco-industries carried on in factories. Its 

 leading sections were : 



_ SECTION 1. The manufacture of cigars or prepara- 

 tion of tobacco in any form on any floor, or in any 

 part of any floor, in any tenement-house, is hereby 

 prohibited if such floor or any part of such floor is by 

 any person occupied as a home or residence for the 

 purpose of living, sleeping, cooking, or doing any 

 household work therein. 



SEC. 2. Any house, building, or portion thereof oc- 

 cupied as the home or residence of more than three 

 families, living independently of one another, and 

 doing their cooking upon the premises, is a tenement- 

 house within the meaning of this act. 



SEC. 3. The first floor of said tenement-house on 

 which there is a store for the sale of cigars and to- 

 bacco shall be exempt from the prohibition provided 

 in section ! of this act. 



A violation of the act was declared to be a 

 misdemeanor, punishable by a fine of not less 

 than ten nor more than one hundred dollars, 



or by imprisonment for not less than ten days 

 and not more than six months, or by both such 

 fine and imprisonment. 



An act having the same end in view was 

 passed by the Legislature in 1883, but it was 

 set aside by the Court of Appeals on technical 

 grounds. The statute of 1884 was so framed 

 as to avoid such technical objections, and it 

 went to the Court of Appeals on the direct 

 question whether the Legislature had ex- 

 ceeded its constitutional powers in passing it. 

 In an opinion prepared by Judge Earl, the 

 Court unanimously held that it had. The 

 statute, said the Court, makes it a crime for a 

 cigar- maker in New York or Brooklyn to carry 

 on a perfectly lawful trade in his own home, 

 and he becomes a criminal for doing that 

 which is perfectly lawful outside of the two 

 cities and everywhere, so far as can be learned, 

 in the whole world. He must either abandon 

 the trade by which he earns a livelihood for 

 himself and family, or, if able, procure a room 

 elsewhere or hire himself out to another. He 

 may choose to do his work where he can have 

 the supervision of his family and their help; 

 and such choice is denied him. He may de- 

 sire the advantage of cheap production in con- 

 sequence of his cheap rent and family help, 

 and of this he is deprived. He may go to a 

 tenement-house, and, finding no one living, 

 sleeping, cooking, or doing any household 

 work on one of the floors, hire a room on such 

 floor to carry on his trade, and afterward 

 some one may begin to sleep or do some house- 

 hold work on such floor, even without his 

 knowledge, and he at once becomes a criminal 

 in consequence of another's act. It is plain, 

 therefore, that this law interferes with the 

 profitable and free use of his property by the 

 owner or lessee of a tenement-house who is a 

 cigar-maker, and trammels him in the applica- 

 tion of his industry and the disposition of his 

 labor, and thus, in a strictly legitimate sense, 

 it arbitrarily deprives him of his property and 

 of some portion of his personal liberty. The 

 constitutional guarantee that no person shall 

 be deprived of his property may be thus vio- 

 lated without the physical taking of property 

 for public or private use. If the Legislature 

 has the power under the Constitution to pro- 

 hibit the prosecution of one lawful trade in a 

 tenement-house, then it may prevent the prose- 

 cution of all trades therein. So, too, one may 

 be deprived of his liberty and his constitu- 

 tional right thereto be violated without the 

 actual imprisonment or restraint of his person. 

 All laws which impair or trammel these rights, 

 which limit one in the choice of his trade or 

 his profession, or confine him to work or live 

 in a specified locality, or exclude him from his 

 house or restrain his otherwise lawful move- 

 ments (except in police regulations), are infringe- 

 ments on his fundamental rights of liberty. 



Of the claim that the Legislature can pass 

 such an act in the exercise of the police power 

 of a sovereign State, the Court says : " Under 



