or differences in the meaning of words." See other authorities cited in the Pond Case, supra.

Would it not be presumptuous in us to declare, as a matter of law, that the members of the General Assembly and the governor did not know the contents of the bill? Is it possible that, during the three months this bill was pending, not a single member undertook to ventilate it? Can we fairly assume that the ten senators and nineteen representatives who voted against this measure sat silently by and permitted a fraud to pass both houses of the General Assembly, and be approved by the governor? And if we could imagine that the members of the Legislature took so little interest in this measure as to make no inquiry about its scope, but voted for it blindly on its title, supposing that the act itself would exterminate book-making and pool-selling by the most effectual means, where was this defendant, who was engaged in the business, and others probably, and their friends, that they took no steps to prevent the contemplated fraud? Or did they assume also, from a perusal of the title, the act was intended to dig up book-making and pool-selling, root and branch, and to utterly destroy them, and they were happy in the contemplation of the passage of such a law? There is no reason, in any view that may be taken of the subject, to hold that the title of this act was intended to deceive, was calculated to deceive or did deceive any one. Our conclusion on this point is that the act did contain but one subject, which was clearly expressed in the title, within the meaning of the constitutional provision.

2. The second contention of defendant is that the "act in question is in no proper sense a legitimate exercise of the police power of the State." His argument on this point proceeds upon the theory that, if the State undertakes to eradicate an evil, it must utterly exterminate it in all its ramifications, and if it fails to do this, and deals with the evil in a partial way, its action is void. Defendant concedes that all betting and wagering is immoral and an evil, and he comes to the court and by his motion to quash the information, admits that he has done wrong in one direction and then asks to escape punishment on the extraordinary ground that the Legislature failed to prohibit him from doing wrong in another direction. Wagering of all kinds is clearly within the police power of the State. City of St. Louis v. Fitz, 53 Mo. 584; State v. Addington, 77 id. 117. If every act should be set aside because it failed to prohibit all of the evils of the class to which the legislation is directed, probably not a single criminal statute could stand a close scrutiny. The Legislature has a discretion, not only in what it will probibit, but also in the method of the prohibition, within the domain of its power. An evil may exist in such a form that the State may not choose to attempt its suppression by law, and again the same evil, by the centralized form it takes, may imperatively demand State interference in the interest of public morality and the good order of society. The Louisiana lottery is a good illustration of a centralized evil. So here we may fairly assume that our Legislature intended to strike the business of book-making and pool-selling in its nerve center, and thus prevent rendezvous from being established as temptations and snares for the unwary and the young. We know of no law or reason requiring Legislatures to punish the same act under any and all circumstances. They often distinguish between the same acts, holding some harmless while punishing others according to time, place and circumstances. Lotteries are prohibited only when carried on as a business or a vocation. Selling liquor is permitted, but the sale of it on Sunday, or in a prescribed territory, may be prohibited. Keeping a bawdy-house becomes a felony only when it is done within one hundred yards of a public building. Discharging a pistol

is penal if done in the vicinity of a court-house or along a public road. The playing of musical instruments in a saloon is made a misdemeanor. The Legislature was the sole judge of how the evil of bookmaking and pool-selling should be reached and when and where. This act may not accomplish all its originators hoped for. It may be evaded. It may not have gone as far as it ought. It may be a temporizing expedient. It may have been intended as an experiment only. These are all outside of the question in band. 'Much of the argument made by counsel for relator is addressed to the impolicy of the act. That line of the argument is proper for the legislative ear, but not for ours. With its policy we have nothing to do." Pond's Case, supra. "But from its very nature the police power of the State is a power to be exercised within wide limits of legislative discretion, and if a statute appears to be within the scope of this power, it would be a usurpation of jurisdiction for the judicial courts to inquire into its wisdom and policy, or to substitute their discretion for that of the Legislature." State v. Addington, supra.

3. The concluding point of objection to the act is that it violates the fourteenth amendment to the Constitution of the United States, in denying defendant the equal protection of the laws. That it does not deuy defendant the equal protection of the laws is settled by a long line of decisions of the Supreme Court of the United States. In Barbier v. Connolly, 113 U. S. 27, the construction of an ordinance of the city of San Francisco prohibiting the washing and ironing of clothes in public laundries and wash-houses within certain prescribed limits of the city and county, from 10 o'clock at night until 6 o'clock in the morning, was involved. Judge Field, delivering the opinion of the court, says: But neither the amendment--broad and comprehensive as it is-nor any other amendment was designed to interfere with the power of the State, sometimes termed its police power,' to prescribe regulations to promote the health, peace, morals, education and good order of the people, and to legislate so as to increase the industries of the State, develop its resources and add to its wealth and prosperity. From the very necessities of society, legislation of a special character, having these objects in view, must often be had in certain districts, such as for draining marshes and irrigating arid plains. Special burdens are often 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 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 character, they do not furnish just ground of complaint if they operate alike upon all persons and property under the same circumstances and conditions. Class legislation, discrimination against some and favoring others, is prohibited, but legislation which, in carrying 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 amendment." Missouri v. Lewis, 101 U. S. 22; Slaughter-House Cases, 16 Wall. 36. The act under review is uniform in its application, operating upon all alike who come within its provisions. The defendant has the same opportunity to make books and sell pools upon events occurring in Missouri that any other citizen has, and all others are prohibited from doing what he is forbidden to do. Hence he has no reason to complain on the ground that he is denied the equal protection of the laws. Our conclusion is the Court of Criminal Correction erred in sustaining defendant's motion to

Sections 663 and 665 of 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 be 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.sult is the conviction that the verdict is without legal

by a proceeding to which he is not 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 People v. Board of Health, 58 Hun, 395, it was ruled that had the statute, under which the 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 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. Mayor, 13 Barb. 32; Babcock v. 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 defendant is fatal to the regularity of the proceeding.

2. That to the amount of the pecuniary sacrifice to be incurred by the 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 section 1 of the fourteenth amendment of the Federal Constitution, "No State shall deprive any person of life, liberty or property without due process of law." By section 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 guaran. teed inviolability by the self same securities.

Defendant's property is proposed to be taken either for a 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 use 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 defend. ant is compelled by the act to accommodate with the convenience 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 pub

lic 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 and the 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 or 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." Peckham, J., in People v. Gilson, 109 N. Y. 400. "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 Constitution." Potter 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. City, 1 Sheld. 344; affirmed, 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 id. 675. "It is the acknowl

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edged 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, or violate rights secured by the Constitution of the United States. * If a statute purporting to have been enacted to protect the public 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.

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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.

3. 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?

the uncontroverted proof is that the lack of water on the floors is "not bad 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 au infallible test of its validity. When it leads necessarily to an absurd result 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 accommodation of tenants with the appliances of gas or electric light, or with a supply of fuel as well as 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 conceiv able 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. City of Rochester v. Simpson, 57 Hun, 36. In either event no cause of action is available against the defendant, and the verdict is invalid.

Not 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 case 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. No 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. "Un der the mere guise of police regulations, personal rights and private property cannot be arbitrarily in- | vaded, 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 conveni-sistency with the genius of our institutions and its ent 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. "Pow-destructive. ers 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 People v. Jackson, etc., Co., 9 Mich. 285. We have been unable to find in any of the decisons the doc-ple utterly repugnant to the spirit of our political trine 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 Me. 189, 213.

Applying the criterion thus propounded to the statute in question, 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 conclusion to which the legal argument conducts us is all the more satisfactory because of its con

tendency to strengthen the securities of property, effects of which a contrary conclusion would be plainly

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 reposes 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 princi

system, and necessarily fatal to our form of liberty. Exceptions sustained and new trial ordered, costs to abide the event.

BOOKSTAVER, P. J., and BISCHOFF, J., concur.