Morning journal and courier., 1885-01-22
Thursday, January P, 1885
UNCONSTITUTIONAL.

The declaration by the New York Court o1 Appeals that the Tenement House Cigar act is unconstitutional is an interesting outcome of an interesting attempt. The law was pass ed because it was demanded by the trades
 unions which desired to keep supervision
 and control over all persons employed in
 making cigars, and the main argument used
 was that the manufacture of cigars in tene-
 ment houses was very unhealthy.
 The decision of the Court of Appeals is
 based directly on the ground that this act in-
 terferes with the right of any citizen to pros
 ecute lawful trade in his own home. It makes, says the court, it a crime for cigar maker in New York or Brooklyn to carry on , perfectly lawful trade in his own home ,and he becomes 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 livelihood for him self and family, or, if able, procure 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 consequence of his cheap rent and family help, and of this he is deprived. He may go to a tenement house, and finding one liv- ing, sleeping, cooking, or doing any house hold work upon one of the floors, hire room upon such floor to carry on his trade, and af terward some one may commence to sleep or to do some household work upon snch fno~- even without his knowledge, and he at once becomes 8 criminal in consequence of an- others act. It is plain, therefore, that this law interferes with the profitable and free use of his property by the owner or lessee of tenement house who is cigarmaker, and trammels him in the application of his in- dustry and the disposition of his labor, and thus, in g strictly legitimate sense,it arbitrar- fly deprives him of his property and of some portion of his personal liberty. The consti- tutional guarantee that no person shall be de- prived of his property without due process of law may be thus violated without physical taking of property for public or private use.
 The plea of sanitary necessity is very plainly dealt with. The police power of the State to make any necessary regulation of the protection of health is admitted, but if an act ostensibly for the protection of health takes away the property of citizen or in- terferes with his personal liberty ''it is for the courts to scrutinize the act and see wheth- CT it relates to and is convenient and appro- priate to promote the public health" This the court proceeds to do, and concludes that the preparation and manufacture of tobacco into cigars are not dangerous to the public health. It has not been able to learn that they are injurious to the health of those who do the work. Its conclusion is that cigar making in tenement houses does no harm to the public health, to that of the inmates of the houses, or of those engaged in the manu- fracture. Consequently this cannot be re- garded as sanitary measure. ''It is plain," says Judge Earl, '' that it has no relation whatever to the public health, but is merely an attempt to interfere with the rights and liberties of the people in a way that should not be sanctioned.
 This settles, temporarily at least, ques- tion which has made a good deal of trouble in New York at one time and another The decision will strike most people as being sound and sensible one.