*

*

these houses in question for the supplying of the Croten or other water to the occupants of each floor at the time when the order of the Board of Health was made; such order therefore could not be complied with on the part of the defendant without the expenditure of money for that purpose. That fact must be assumed, and, even upon that assumption, we do not think the act invalid on the alleged ground that it deprives the defendant of its property without due process of law. The act must be sustained, if at all, as an exercise of the police power of the State. Assuming that this act is a proper exercise of the power, in its general features, we do not think that it can be regarded as invalid because of the great fact that it will cost money to comply with the order of the Board for which the owner is to receive no compensation or because the Board is entitled to make the order under the provisions of the act without notice and a hearing of the defendant. As to the latter objection it may be said that in enacting what shall be done by the citizen for the purpose of promoting the public health and safety it is not usually necessary to the validity of the legislation upon that subject that the party shall be heard before he is bound to comply with the direction of the legislature. People vs. Board of Health, 140 N. Y. 1, 6. The legislature has power and has exercised it in countless instances to enact general laws upon the subject of the public health and safety without providing that the parties, who are to be affected by those laws, shall first be heard before they shall take effect in any particular case. * The fact that the legislature has chosen to delegate a certain portion of its power to the Board of Health and to enact that the owners of certain tenement houses should be compelled to furnish this water after the Board of Health had so directed, would not alter a principle nor would it be necesssary to provide that the Board should give notice and afford a hearing before it made such order. I have never understood that it was necessary that any notice should be given under such circumstances before the provisions of this nature could be carried out."

*

The opinion of Justice Peckham in this case is most exhaustive and it was held that the act in question was a reasonable exercise of the police power of the State. Judge Bartlett dissented but not on the ground that notice and a hearing were necessary but on the ground that the exercise of power in such a case was unreasonable and oppressive.

Sec. 296. "Regulations for the preservation of the health, morals and welfare of the people may press with more or less weight upon one than upon another, but they are designed not to impose unequal or unnecessary restrictions upon anyone but to promote with as little individual inconvenience as possible the general good; and the 14th Amendment does not apply to the exercise of the police power of the State. The inconvenience arising in the administration of police laws are matters entirely for the consideration of the State; they are to be remedied only by the State." Barbin vs. Connolly, 113 U. S.

27.

Sec. 297. In excluding various articles from the mail the object of Congress has not been to interfere with the rights of the people, but to refuse its facilities for the distribution of matter deemed injurious to the public morals. Ex parte Doran, 32 F. R. 76.

Sec. 298. In Powell vs. Pennsylvania, 127 U. S. 678, a statute, making it unlawful to manufacture or sell oleomargarine altogether, was upheld though it was offered to be shown that that article, if properly made, was a wholesome food. Mr. Justice Harlan, delivering the opinion of the court, used this language: "If all that can be said of this legislation. is that it is unwise or unnecessarily oppressive to those manufacturing or selling wholesome oleomargarine as an article of food, their appeal must be to the legislature or to the ballot box and not to the judiciary."

Sec. 299. The Supreme Court of the United States in Lawton vs. Steele, 152 U. S. 132, 135, lays down the rule, in regard to the exercise of the police power, in the following terms: "It (the police power) is universally held to include everything essential to the public safety, health and morals

and that the State may interfere wherever the public interests demand it and, in this particular a large discretion is necessarily vested in the legislature to determine not only what the interests of the public require, but what measures are necessary for the protection of such interests. Barbin vs. Connelly, 113 U. S. 27; Kidd vs. Pearson, 128 U. S. 1. To justify the State in thus interposing its authority in behalf of the public it must appear, first, that the interests of the public generally, as distinguished from those of a particular class, require such interference; second, that the means are reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon individuals." In this case, where a fishing net had been summarily destroyed without a hearing under a statute of New York, the court went on to say that the "legislature, however, undoubtedly possessed the power not only to prohibit fishing in these waters, but to make it a criminal offense and to take such measures as were reasonable and necessary to prevent such offenses in the future. It certainly could not do this more effectually than by destroying the means of committing the offense. If the nets were being used in a manner detrimental to the public, we think it was within the power of the legislature to declare them to be nuisances and to authorize the officers of the State to abate them. * * * While the legislature has no power to arbitrarily declare that to be a nuisance which is clearly not so, a good deal must be left to its discretion in that regard, and if the object to be accomplished is conducive to the public interests, it may exercise a large liberty of choice in the means employed. Newark and S. O. H. C. R. Co. vs. Hunt, 50 N. J. L. 308; Blazin vs. Miller, 10 Hun. 435; House's case, 12 Coke, 62; Stone vs. New York, 25 Wend. 173; American Print Works vs. Lawrence, 21 N. J. L. 248; 23 N. J. L. 590."

And, in another place, the Court said: "An act of the legislature, which has for its object the preservation of the public interests against illegal deprivation of the rights of pri

vate individuals ought to be sustained unless it is plainly violative of the Constitution or subversive of private rights."

Sec. 300. The Supreme Court of the United States in Crowley vs. Christensen, 137 U. S. 86, 94, said: "There is no inherent right in a citizen to thus sell intoxicating liquors by retail; it is not a privilege of a citizen of the State or of the United States. As it is a business attended with danger to the community, it may, as already said, be entirely prohibited, or be permitted under such conditions as will limit, to the utmost, its evils. The manner and extent of regulation rest in the discretion of the governing authority. That authority may vest in such officers, as it may deem proper, the power of passing upon applications for permission to carry it on, and to issue a license for that purpose. It is a matter of legislative will only. As in many other cases, the officers may not always exercise the power conferred upon them with wisdom and justice to the parties affected. But that is a matter which does not affect the authority of the State or one which can be brought under the cognizance of the Courts of the United States."

Sec. 301. In Mugler vs. Kansas and Kansas vs. Ziebald, 123 U. S. 623, a statute of Kansas, prohibiting the manufacture or sale of intoxicating liquors as a beverage and declaring all places where such liquors were manufactured or sold in violation of the statute to be common nuisances and prohibiting their future use for the purpose, was held to be a valid exercise of the police power of the State, even as applied to persons who, long before the passage of the act, had constructed buildings specially adapted to such manufacture and of but little value for any other object. It was held, in that case, that the state could lawfully prohibit the manufacture of liquors for one's private use, if such manufacture was deemed prejudicial to the rights and interests of the community and that the power to determine what was prejudicial to society was lodged in the legislature.

Sec. 302. The police power extends not only to things intrinsically dangerous to the public health or injurious

to the public morals, such as infected rags or diseased meat, but to things which, when used in a lawful manner, are subjects of property and commerce and yet may be used so as to be injurious or dangerous to the life, health, or the morals of the people. Gunpowder is a subject of commerce and of lawful use, yet, because of its explosive and dangerous qualities, all admit that the State may regulate its keeping and sale. Liquor, bottles, glasses and other utensils used in connection with liquor, and fishing nets, are articles of legitimate use in some respects and yet, they may be lawfully destroyed as constituting nuisances because they may be put to uses injurious to the health and morals of the people. Mugler vs. Kansas, supra.

Sec. 303. In Fertilizing Co. vs. Hyde Park, 97 U. S. 659, the Company had been granted a charter by the State of Illinois for the purpose of converting, by chemical process, the dead animal matter of the slaughter houses of Chicago for fifty years.. The company, under the charter, erected buildings and appliances costing $200,000. The village of Hyde Park, where the establishment was located, passed an ordinance, authorized by the law of the State, prohibiting any one from carrying on any unwholesome or offensive business or establishment within the limits of the village, or to transport offal through it. The Court held that the property was erected and the money invested subject to the future exercise of the police power of the village, acting under state authority. The effect of this ruling was to substantially destroy the value of the property of the company before the expiration of its char

ter.

Sec. 304. In Boston Beer Company vs. Massachusetts, 97 U. S. 25, the Supreme Court of the United States, affirming the judgment of the Supreme Judicial Court of Massachusetts, held that a statute of the State, prohibiting the manufacture and sale of intoxicating liquors, applied to a corporation which the State had long before chartered and authorized to hold real and personal property for the purpose of manufacturing such liquors. Among the reasons assigned by the Court for