Page:The Green Bag (1889–1914), Volume 07.pdf/523

 4§4

A Religious Use. — The origin of the maxim, "Cleanliness is next to godliness " is unknown, but there is no doubt of its soundness, and the New York Court of Appeals have commended it to a relig ious society, in Health Department of the City of New York v. Rector, etc., of Trinity Church, 145 N. Y. 32; 27 L. R. A. 710, in which they hold that a statute requiring water to be furnished on each floor of every tenement house is a valid exercise of police power with respect to health, and also with respect to public safety regarding fires and their extinguish ment. The horrors of the Trinity Church tenement houses are but little known, but they are almost as great as those of the prison ships of the Revolution, which lay and rotted with their human freight in New York harbor, and to the victims of which a sumptuous monument stands in Trinity Church-yard, directly opposite Pine Street (placed there to pre vent the extension of that street through those grounds). At last the public authorities have done their duty in the premises in a small measure. The corporation consequently may have less money to spend on church construction and decoration, but there will be more human beings to be ministered unto. Judge Peckham, in the course of a long and powerful opinion (and by the way he is a good Epis copalian), observes among other things : — "We may own our property absolutely, and yet it is subject to the proper exercise of the police power. We have surrendered, to that extent, our tight to its unrestricted use. It must be so used as not improperly to cause harm to our neighbor, including in that description the public generally. There are sometimes necessary expenses which inevitably grow out of the use to which we may put our property, and which we must incur, either voluntarily, or else under the direction of the legislature, in order that the general health, safety, or welfare may be conserved. The legislature, in the exercise of this power, may direct that certain improvements shall be made in existing houses at the owners' expense, so that the health and safety of the occupants, and of the pub lic through them, may be guarded. These exactions must be regarded as legal so long as they bear equally upon all members of the same class, and their cost does not exceed what may be termed one of the conditions upon which in dividual property is held. It must not be an unreasonable exaction, either with reference to its nature or its cost. Within this reasonable restriction, the power of the State may, by police regulations, so direct the use and enjoyment of the property of the citizen that it shall not prove per nicious to his neighbors, or to the public generally. "Laws and regulations of a police nature, though they may disturb the enjoyment of individual rights, are not un constitutional, though no provision is made for compensa tion for such disturbances. They do not appropriate pri vate property for public use, but simply regulate its use and enjoyment by the owner. "The State, or its agent in enforcing its mandate, takes no property of the citizen when it simply directs the making of these improvements. As a result thereof, the in dividual is put to some expense in complying with the law, by paying mechanics or other laborers to do that which the

law enjoins upon the owner; but, so long as the amount exacted is limited as stated, the property of the citizen has not been taken, in any constitutional sense, without due process of law. Instances are numerous of the passage of laws which entail expense on the part of those who must comply with them, and where such expense must be borne by them, without any hearing or compensation, because of the provisions of the law. "Hand-rails to stairs, hoisting shafts to be inclosed, au tomatic doors to elevators, automatic shifters for throwing off belts or pulleys, and fire escapes on the outside of cer tain factories, — all these were required by the legislature from such owner, and without any direct compensation to him for such expenditure. Has the legislature no right to enact laws such as this statute regarding factories, unless limited to factories to be thereafter built? Because the fac tory was already built when the act was passed, was it be yond the legislative power to provide such safeguards to life and health, as against all owners of such property, un less upon the condition that these expenditures to be in curred should ultimately come out of the public purse? I think to so hold would be to run counter to the general course of decisions regarding the validity of laws of this character, and to mistake the foundation upon which they are placed. "Any one in a crowded city who desires to erect a build ing is subject at every turn, almost, to the exactions of the law in regard to provisions for health, for safety from fire, and for other purposes. He is not permitted to build of certain materials, within certain districts, because, though the materials may be inexpensive, they are inflammable; and he must build in a certain manner. Theaters and ho tels are to be built in accordance w ith plans to lie inspected and approved by the agents of the city; other public build ings, also, and private dwellings within certain districts are subject to the same supervision." "And in carrying out all these various acts, the owner is subjected to an expense much greater than would have been necessary to have completed his building, if not compelled to complete it in the manner, of the materials, and under the circumstances prescribed by various acts of the legisla ture. And yet he has never had a hearing in any one of these cases, nor does he receive any compensation for the increased expense of his building, rendered necessary in order to comply with the police regulations. I do not see that the principle is substantially altered where the case is one of an existing building, and it is to be subjected to cer tain alterations for the purpose of rendering it either less exposed to the danger from fires, or its occupants more se cure from disease. In both cases, the object must be within some of the acknowledged purposes of the police powerand such purpose must be possible of accomplishment at some reasonable cost, regard being had to all the surround, ing circumstances. "Under the police power, persons and property are subjected to all kinds of restraints and burdens in order to se cure the general comfort and health of the public. The court cited Commonwealth v. Roberts, 155 Mass. 281; 16 L. R. A. 400, holding that an act of the legislature, which provided that every building in Boston used as dwelling house, situated on a street in which there was a public sewer, should have sufficient water-closets connected therewith, was valid as to existing houses and applied in its penal ties to their owners, if such houses continued with out the closets after its passage.