
    The Health Department of the City of New York, Pl’ff, v. The Rector, Churchwardens and Vestrymen of Trinity Church, Def't.
    
      (New York Common Pleas, General Term,
    
    
      Filed February 1, 1892.)
    
    Constitutional law—Laws 1882, Chap. 410, §§ 663, 665—Water in tenements in New York city.
    Sections 663 and 665 - oí the consolidation act, requiring that all tenement houses in the city of New York shall have Croton or other water-provided therein at one or more places on each floor, whenever the owners thereof shall he directed so to do by the board of health, and making failure on the part of the said owners to comply with such direction a misdemeanor, are unconstitutional and void.
    Motion by defendant for a new trial on exceptions directed to be heard at the general term in the first instance.
    
      W. P. Prentice, for pl’ff; S. P. Nash, for deft.
   Pryor, J.

The case is before us upon a motion by defendant,

for a new trial on exceptions directed to be heard at general term-The action is to recover a penalty claimed to be incurred by breach of a duty alleged to be imposed by §§ 663, 665 and 666 of the consolidation act. Section 663 prescribes that every tenement house erected or “converted,” after May 14, 1867, “shall have Croton or other water furnished at one or more places on each floor occupied or intended to be occupied by one or more families; and all tenement houses shall he provided with a like supply of water hy the owners thereof whenever they shall he directed so to do hy the hoard of health; but a failure in the general supply of water by the city authorities shall not be construed to be a failure on the part of such owner, provided that proper and suitable appliances to receive and distribute such water are placed in said house.” By § 665 every owner or other person violating any provision of § 663 is guilty of a misdemeanor, punishable by fine- and imprisonment, and “ shall be also liable to pay a penalty of' ten dollars for each and every day that such offense shall continue.” Section 666 defines a tenement house “ to mean and include every house, building or portion thereof which is rented, leased, let or hired out to be occupied or is occupied as the home- or residence of three families or more, living independently of each other,” etc., etc.

It is assumed, for argument, that the houses in question are tenement houses within the terms of the definition.

As appears by the complaint, by plaintiff’s proof and by its brief before us, the action proceeds upon that clause of the statute which requires all tenement houses, on the direction of the board of health, to be provided with water on each floor; and, accordingly, the plaintiff put in evidence the order of the board, whereby defendant was required to provide “suitable appliances to receive and distribute a supply of water on the top floor of Ho. 59; the basement, first and second floors of Ho. 77 ; the basement, first, ■second and third floors of Ho. 84, and the basement and attic of Ho. 86.” The complaint charges the defendant with default in 'respect only of two houses, namely, Hos. 77 and 84, and the default imputed is not the omission to do the thing required by the order, namely, to provide suitable appliances, etc., but a neglect •“ to furnish any water in sufficient quantity on each floor of the houses.”

For answer to the action defendant alleges, first, that water was furnished in the basement floor or in the yard of each house; secondly, that the order of the board was made without any previous notice to defendant; thirdly, that the act pursuant to which the order issued was not “ a regulation in a matter affecting health, and, fourthly, that the requirement of the act is unconstitutional and void.

On the close of the case each party moved the court to direct a verdict in its favor. The court denied defendant’s motion, subject to due exception, and granted plaintiff’s motion, subject to •like exception. Accordingly the jury returned a verdict for plaintiff in the sum of $200, the amount of penalties for twenty days’ default.

In deference to the manifest importance of the case, as involving the gravest questions of constitutional construction, as affecting the essential' securities of property, and as fraught with consequences incapable of assignable limits, we have bestowed upon it the most deliberate and anxious consideration, and the result is the conviction that the verdict is without legal support.

Since the action is brought to enforce a liability consequent upon the .neglect to perform the obligation imposed by the order of the board of health; and since the delinquency with which the ■defendant was charged, and of which it was convicted, namely, a neglect to supply water, and not a breach of the duty required by. the order, namely, to provide proper and suitable appliances, in view of the strictness with which penal statutes are to be construed, the inference is plausible, to say the least, that the plaintiff failed to establish the fundamental condition of recovery. We prefer, however, to rest our decision on more solid and substantial grounds.

1. On the trial the defendant tendered evidence that compliance with the order of the boaid would exact an expenditure of at least $100 for each house; and, as the offer was rejected, the ease “is to be considered as if the proof offered has been received.” Powell v. Pennsylvania, 127 U. S., 688; Scotland County v. Hill, 112 id., 186. We have, then, a substantial pecuniary burden imposed upon defendant by an order of which the statute, pursuant to which it was made, requires no notice in' advariCe to be given, of which, accordingly, no notice in fact was given, and against which, therefore, no opportunity was afforded defendant to be heard and make defense. Furthermore, disobedience to the order, against which no opportunity was afforded defendant to be heard and make defense, is punishable by fine and imprisonment, besides exposing him to liability for a penalty recoverable by a civil proceeding. Indeed, the statute in terms stigmatizes such disobedience as an “offense.”

Manifestly, in passing the order, the board exercised a judicial function; but if this were not so in the nature of the thing, the statute, by § 620, makes it so in declaring that “ the action, proceedings, authority and orders of said board shall at all times be regarded as in their nature judicial, and treated &s prima facie just and legal."

For anything apparent in the case, the defendant, upon opportunity given, might and would have exhibited sufficient and satisfactory ground of objection to the order; for example, that the tenants of the houses already enjoyed an abundant supply of water, and that they did not desire that which the órder required in their behalf. Nay, such proof was given on the trial of this-action, but the learned trial judge, with logical consistency, treated the order of the board as conclusive to the contrary, and, in the-direction of the verdict, disregarded the evidence as wholly irrelevant and immaterial.

That no man shall be affected in person or- property by a proceeding to which he is hot duly a party, is a fundamental principle of American jurisprudence. Indeed, an opportunity of defense-is an essential element in the conception of “ due process of law.” Stuart v. Palmer, 74 N. Y., 183. Hence, in The People v. The Board of Health, 58 Hun, 595; 35 St. Rep., 411, it was ruled that had the statute, under which thé board was authorized to require a. railroad company to make openings in an embankment-, dispensed with the necessity of notice, the act would have been unconstitutional ; and that the duties of the board being of a quasi judicial nature, the omission to give notice of the intended action was fatal to the regularity of the proceeding. So in Chicago, M. & St. Paul R. Co. v. Minnesota, 134 U. S., 418, the supreme court of the United States declared an act of the legislature, which authorized the board, without notice, to regulate the charges of a railroad company, to be unconstitutional, “as depriving the company of its-property without due process of law, and depriving it of the equal protection of the laws.” Clark v. The Mayor, 13 Barb., 32; Babcock v. The City of Buffalo, 1 Sheld., 317.

Inasmuch, then, as the statute purports to authorize the order in controversy without notice to the defendant, it is void; and the-omission, in fact, of notice to the défendant, is fatal to the regulárity of the proceeding.

IÍ. That to the amount of the pecuniary sacrifice to be incurred by defendant in furnishing the additional supply of water to the tenants of its house its property would be taken, is a self-evident proposition; would such taking be justifiable?

By § 1 of the fourteenthamendment of the federal constitution^ “No state shall deprive any person of life, liberty or property without due' process of law.” By § 6 of the first article of the state constitution, “ No person shall be deprived of life, liberty or property without? due process of law; nor shall private property be taken for public use without just compensation.” Thus, by the fundamental law, person and property are coupled together in indissoluble association; are regarded as objects equally, worthy of protection against arbitrary invasion, and are guaranteed inviolability by the self same securities.

Defendant’s property is proposed to be taken either for & public or a private use. If for a public use, such «taking would be mere confiscation, because without indemnity. If for a private use, such taking would be mere-spoliation, because property may not-be taken for a private purpose, even upon full compensation. Matter of Deansville Cemetery Association, 66 N. Y., 569; Loan Association v. Topeka, 20 Wall., 655. It is altogether immaterial, therefore, for which úse defendant’s property is proposed to be taken; in either case the taking would involve a violation of the safeguards of the constitution. It is manifest, however, that the taking would in no sense be for the use of the public, but solely for the benefit of the tenants whom defendant is compelled by the act to accommodate with the conveniences of water on the floors;

To this argument plaintiff’s answer is that the act is an exercise of police power, and so is not obnoxious to the prohibitions of the constitution ; the suppressed premises of the syllogism being that the police power of the state is above and beyond the restraints of the constitution. As regards the restrictions of the federal constitution the proposition is not without authority. Barbier v. Connolly, 113 U. S., 27; Powell v. Pennsylvania, 127 id., 683; for “it cannot be supposed that the states intended, by adopting the fourteenth amendment, to impose restraints upon the exercise of their powers for the protection of the safety, health or morals of the community.” Mugler v. Kansas, 123 U. S., 664. And yet .in the case last cited the federal supreme court said: “Undoubtedly the state, when providing by legislation for the protection of the public health, the public morals, or the public-safety, is subject to the paramount authority of the constitution of the United States, and may not violate rights secured or guaranteed by that instrument. 123 U. S., 663; Powell v. Pennsylvania, 127 id., 686-7; Chicago v. Minnesota, 134 id., 458.

But the problem for solution is not whether the police power of the state be free from the restraints of the federal constitution, but whether it be unchecked and unqualified by the positive inhibitions of the state constitution. Upon this issue, obviously, the adjudications of the federal supreme court are of no relevancy or authority, because a supposed conflict between a state statute and a state constitution raises no federal question, and so is not within the scope of federal jurisdiction.

The police power comprehends legislation for the public health,, the public safety, the public morals andthe public welfare; in short, the police power is an equivalent term for the legislative-power. Gibbons v. Ogden, 9 Wheat., 203. In view, then, of the vast and indeed otherwise boundless extent of the police power, to affirm that it is unaffected by the limitations of the constitution, in other words, that it is legislative despotism, is to propound a palpable absurdity. Subject to the restraints of the constitution, the police power is necessarily fettered by the express and peremptory prohibition against a deprivation of property without due process of law, and the taking of property for public use without compensation.

And so are the authorities: “Another class of cases is referred to and relied upon by'the counsel for the city, in which the right of municipal governments to interfere to some extent with private property in the execution of police regulations for the safety ór health of the public has been acknowledged. But none, I think, go to the extent of authorizing private property to be taken or destroyed for the public benefit, without compensation made therefor.” Allen, J., in Clark v. Mayor, 13 Barb., 36. The police power has never yet been fully described nor its extent limited further, at least, than this ; it is not above the constitution, but is bounded by its provisions, and if any franchise or liberty is expressly protected by any constitutional provision, it •cannot be destroyed by any valid exercise by the legislature or the ■executive of the police power.” Beckham, J., in People v. Gillson, 109 N. Y., 400; 16 St. Rep., 185. “The limit to the exercise of the police power can only be this : the legislation must have reference to the comfort, the safety or the welfare of society, and it must not be in conflict with the provisions of the constitutionBetter's Dwarris, 458. “ I have no doubt but what the property and rights of the plaintiff, the existence of which are at stake in this case, are shielded by the constitution from the threatened .aggressions of the defendant, and that it is the duty of courts implicitly to assert and maintain the fundamental law in respect thereof, so that every person may know that the rights of property exist by no uncertain tenure, and that the arm of the law is strong to protect, and will protect, every citizen in the enjoyment of life, liberty and property.” Sheldon, J., in Babcock v. The City, 1 Sheld., 344, aff’d 56 N. Y., 268. “ The police power, however broad and extensive, is not above the constitution. When it speaks, its voice must be heeded. It furnishes the supreme law, the guide for the •conduct of legislatures, judges and private persons, and, so far as it imposes restraints, the police power must be exercised in subordination thereto. * * * The power is not without limitations, and in its exercise the legislature must respect the fundamental rights guaranteed by the constitution. If this were otherwise the power of the legislature would be practically without limitation.” Earl, J., in Matter of Jacobs, 98 N. Y., 108, 110; People v. Marx, 99 N. Y., 377. “ It is the acknowledged right of the states of the union to control their purely internal affairs, and in so doing to protect the health, morals and safety of their people by regulations that do not interfere with the execution of the powers of the general government, dr violate rights secured by the constitution of the United States. * * * If a statute purporting to have been enacted to protect health, the public morals or the-public safety * * * is a palpable invasion of rights secured, by the fundamental law, it is the duty of the courts to so adjudge,' and thereby give effect to the constitution.” Harlan. J., in Mugler v. Kansas, 123 U. S., 659, 661.

As the statute in controversy involves a deprivation of property, without the consent of the owners and without compensation, it is void, and so inoperative to' impose the penalty for the enforcement of which the action is instituted.

III. Assuming, for argument, that the expenditure exacted of defendant would not be a taking of property if imposed in due exercise of the police power, the question is, was the act in controversy a legitimate exercise of that power ?

Hot every pretense of solicitude for the welfare of the community, apparent on the face of a statute, will validate it as an. exercise of the police power. In any cáse the question is still before the court whether, in its scope and nature, the act be a true-exertion of the police power of the state. Ho matter how plausible the professions of the statute, nor how benevolent in motive or beneficent in effect, to be a legitimate act of police .power it-must, if the public health be its ostensible object, exhibit some relation to that object and some tendency to promote it. “ Courts-must be able to see, upon perusal of the enactment, that there is-some fair, just and reasonable connection between it and the public health. Unless such relation exist, the enactment cannot be upheld as an exercise of the police power.” People v. Gillson, 109 N. Y., 401; 16 St. Rep., 185. “ Under the mere guise of police regulations, personal rights and private property cannot be arbitrarily invaded, and the determination of the legislature is not. final and conclusive. If it passes an act ostensibly for the public health, and thereby destroys or takes away the property of a citizen, or interferes with his personal liberty, then it is for the-courts to scrutinize the act and see whether it really relates to and is convenient and appropriate to promote the public health.” Matter of Jacobs, 98 N. Y., 110; Mugler v. Kansas, 123 U. S., 661; Powell v. Pennsylvania, 127 id., 686. “Powers which can only be justified as an exertion of the police power of -the state,, and which would otherwise be clearly prohibited by the constitution, can be such only as are so clearly necessary to the-safety, comfort and well being of society, or so imperatively required by the public necessity, as to lead to the necessary and satisfactory conclusion that the framers of the constitution could not, as men of ordinary prudence and sagacity, have intended to prohibit their exercise in the particular case, notwithstanding the language of the prohibition would otherwise include it.” Christiancy, J., in The People v. The Jackson, etc., Co., 9 Mich., 285. “We have been unable to find in any of the decisions the doctrine that legitimate police regulations will extend to matters conducive to the convenience of the public, when they conflict with the recognized rights of other parties.” State v. Noyes, 47 Maine, 189, 213.

Applying the criterion thus propounded to the statute in questian, in connection with the facts of the case, it is evident, beyond ■dispute, that the statute is not a legitimate exercise of the police power of the state.

It is not pretended that the houses of defendant, in their present condition, constitute a nuisance, or that in any way or to any degree they impair the health either of the public or of the occupants. On the contrary, the uncontroverted proof is that the lack of water on the floors is “notbad for the health of the tenants.” There is no evidence, nor can the court judicially know, that the presence and distribution of water on the several floors will conduce to the health of the occupants; but so far the contrary, that sanitary science now admonishes of the danger to health from the possible escape of noxious gases.

The uncontradicted proof shows already a sufficient and easily accessible supply of water on the premises, so that the required ■conduct of water up to the floors serves no other purpose than the convenience of the tenants. ' There is no necessity for legislative compulsion on a landlord to distribute water through the ■stories of his building, since, if tenants require it, self interest .and the rivalry of competition are sufficient to secure it.

The consequences involved in a principle furnish an infallible test of its validity. When it leads necessarily to an absurd re.sult, it cannot be sound. Now, if it be competent for the legislature to impose an expense on a landlord in order that tenants may be furnished with water in their rooms instead of in the yard or basement, at what point must this police power pause ? If the convenience of tenants be a sufficient reason for the exercise of the power, why may it not be employed to compel the accommo■dation of tenants with the appliances of gas or electric light, or with a supply of fuel as well as of water, or with any, even the most costly, accessories of comfortable life in a tenement house? •Once discard the recognized, condition that the thing required be reasonably necessary and apparently conducive to health, and no conceivable limitation restrains the power of the legislature to impose burdens upon property for the benefit of others.

From the facts in evidence the inevitable conclusion is this: Either the statute is applicable to the case, or it is not. If applicable, then the statute is an unwarrantable exercise of the police power. Authorities supra. If inapplicable, then the statute gives the plaintiff no right to the penalty for which it sues. The City of Rochester v. Simpson, 57 Hun, 36; 32 St. Rep., 732. In either event no cause of action is available against the defendant, and the verdict is invalid.

The conclusion to which the legal argument conducts us is all the more satisfactory because of its consistency with the genius of ■our institutions and its "tendency to strengthen the securities of property, effects of which a contrary conclusion would be plainly destructive. The postulate upon which the legislation in question proceeds is the duty of government to exercise a paternal protectorate over the people; whereas the distinguishing characteristic of the American Commonwealth is that it restricts the operation of government to the narrowest possible sphere, and reposep upon, individual intelligence and effort for the development of a free and fruitful civilization. A conclusion contrary to the present decision would involve the essential principle of that .species of socialism 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.

Exceptions sustained and new trial ordered, costs to abide the event.

Bookstaver, P. J., and Bischofe, J.', concur.  