85 N.Y.S. 704 | N.Y. App. Div. | 1904
In the disposition of the legal question presented for our consideration we are not required to pass upon questions of fact, as to
The single question which we are to determine is whether that portion of the Tenement House Act (Laws of 1901, chap. 334, § 100, as amd. by Laws of 1902, chap. 352, § 47) which requires that for present school sinks in tenements there shall be substituted another and different system of sewerage, is or is not constitutional.
The Tenement House Act is the culmination of legislative enactments extending over a long period, directed to providing safe and sanitary conditions particularly among those who live in the more crowded districts of large cities in the State. Prior to its passage the subject of suitable sanitary accommodations for tenement houses in the city of New York was controlled by section 653 of the Consolidation Act (Laws of 1882, chap. 410) as amended by chapter 211 of the Laws of 1889, which, among other things, provided that “ Every tenement and lodging-house or building shall be provided with as many good and sufficient water-closets, improved privy sinks or other similar receptacles as the board of health shall require. * * * The water-closets, sinks and receptacles shall have proper doors, soil pipes and traps, all of which shall be properly ventilated, * * * and other suitable works and fixtures necessary to insure the efficient operation, cleansing and flushing thereof. Every tenement
.It thus appears that a privy vault' in connection with a tenement house such as the defendants was forbidden, but a school sink, comprising a vault sewer connected and with means for permitting under the direction of a caretaker a flow of water at intervals for cleansing, was allowed by and with the assent and supervision of the board of health. The tenement house commission of 1894 having reported adversely upon the condition of the school sinks and that of 1900 having condemned nearly all of them as being “ in a horrible condition, in some cases simply indescribable,” and recommended the removal of all school sinks and the substitution therefor of proper water closet accommodations, the present law was passed whereby it is provided in section 100 as follows : “ In all now existing tenement houses where a connection with a sewer is possible, all school sinks, privy vaults or other similar receptacles * * * shall before January first, nineteen hundred and three, be completely remoyed and the place where they were located properly disinfected under the direction of the department charged with the enforcement of this act. Such appliances shall be replaced by individual water-closets of durable, non-absorbent material, properly sewer connected, and with individual traps, and properly connected flush tanks.providing an ample flush of water to thoroughly cleanse the bowl. Each water-closet shall be located in a compartment completely separated from every other water-closet, and such compartment shall contain a window of not less than three square feet in area opening directly to the outer air. The floors of the water-closet compartments shall be waterproof as provided in section ninety-five of this act. Where water-clos • ets are placed in the yard to replace school sinks or privy vaults, long hopper closets may be used; but all traps, flush tanks and pipes shall be protected against the action of frost. In such cases, the structure containing the water-closets shall not exceed ten feet in height. * * * Such structure shall be provided with a ventilating skylight in the roof, of an adequate size. * * * Proper
The Legislature has thus by these provisions followed up prior enactments which, upon trial, proved insufficient to fulfill their object of preserving the public health, and by the aid of a special commission and after extensive investigation passed an act complete in detail and designed to cope with the important problems of municipal sanitation. In so doing it has exercised the police power of the State, which, among the many objects over which it extends, applies with peculiar force to the preservation of the general health of the community, and in that connection to the regulation and disposition of sewage. For the prevention of contagion and disease and the suppression of a threatening danger to the public health, the most drastic requirements of the Legislature may, as a proper exercise of this power, be sanctioned, with the limitation merely that they are upon their face no more than reasonable, in view of the evil sought to be overcome.
The section of the Tenement House Act from which we have quoted is said to be unconstitutional, however, because, as contended, the result of carrying it into effect will be to unnecessarily burden property owners, and without any corresponding public good in the shape of better sanitation. If it could be concluded from examining the statute itself and its provisions that such would be the consequences flowing from the enactment, then undoubtedly it would be the duty of the court to hold that it was unconstitutional. In passing upon the constitutionality of the act, however, it is necessary to bear in mind what are the tests to be applied, and how and in what manner the constitutionality of the law is to be determined, whether from the face of the act itself or from proof aliunde as to its necessary operation and effect. We do not claim that we shall be able to reconcile the cases, yet it is important in this direction to reach a position which we can legally sustain. Generally speaking, the sources to which the court may resort for aid in determining the question of the constitutionality are the law itself and such other considerations, facts or circumstances of which the court can take judicial notice. Cases, no doubt, can be found where testimony has been taken, but that has been very seldom permitted and only under extraordinary circum
In the case of Commonwealth v. Roberts (155 Mass. 281) a statute, in many respects similar to that under consideration, was presented for judicial examination. The statute (Laws of Mass. of 1885, chap. 382, §§ 1, 2 as amd. by Laws of 1889, chap. 450, § 2) provided that certain buildings in Boston situated on a street in which there was a sewer should have water closets connected therewith and no cesspools or privies, except temporarily where authorized . by the board of health. It was admitted therein that the defendant’s house was not provided with a water closet connected with the sewer in the street and that the building in the yard had beneath it a brick vault connected with the sewer by a pipe with a trap and that water flowed into the excavation when it rained and that the excavation could be flushed by a hose in the yard and was so flushed by the defendant from time to time by a man sent for the purpose. It was held that the judgment against the defendant should be affirmed, the court saying: “ There can be no- doubt that the statute in question is within the constitutional powers of the Legislature ás a police regulation. It is an act for the preservation of the public health, and relates to the disposal of one of the most dangerous forms of sewage. As said by Morton, J., in Nickerson v. Boston (131 Mass. 306, 308), It belongs to that class of .police regulations to which private rights are held subject, and is founded upon the right of the public to protect itself from nuisances, and to preserve the general health. The authority of the Legislature to pass laws of this character is too well settled to be questioned.’ ” And it was further said therein with respect to a contention which is also made here: “ The defendant, however, contends that, as her structure was lawful when built, an act of the Legislature which would render its use unlawful would be unconstitutional, citing Commonwealth v. Alger (7 Cush. 53, 103). The statutes there in controversy related to harbor lines in Boston, and were not police regulations affecting ' the public health.”
In Rhode Island, also, in the case of Harrington v. Board of Aldermen (20 R. I. 233), a similar statute providing for the drainage of land into sewers and directing the removal of privy vaults,
The principles thus enunciated in other jurisdictions have found sanction in our own courts; and the subject of the police power received an ample discussion in the case of Health Department v. Rector (145 N. Y. 32), wherein the provisions of the Consolidation Act requiring in tenement houses adequate facilities for the supply of water were under consideration; and it was said: “ Laws and regulations of a police nature, though they may disturb the enjoyment of individual rights; are not unconstitutional, though no provision is made for compensation for such disturbances. They do not appropriate private property for public use, but simply regulate its use and enjoyment by the owner. If he suffer injury it is either damnum absque injuria, or, in the theory of the law, he is compensated for it by sharing in the general benefits which the regulations are intended and calculated to secure. * * * The State, or its agent in enforcing its mandate, takes no property of the citizen when it simply directs the-, making of these improvements. * * One of the late instances of this kind of legislation is to be found in the law regulating manufacturing establishments. * * * The provisions of that act could not be carried out without the expenditure of a considerable sum by the owners of a then existing factory. * * * Any one in a crowded city who desires to erect a building is subject at every turn almost, to the exactions of the - law in regard to provisions for health, for safety from five and for other purposes, * * * Under the police power persons and property are subjected to all kinds of restraints and burdens in order to secure the general comfort and health .of the public. * * * The tenement house in New York is a subject of very great thought and anxiety to the" residents of that city. The numbers of people that live in such houses, their size, their ventilation, their cleanliness, their liability to fires, the exposure of their occu
In the light of these authorities we think that the provisions of law here presented are such as the Legislature in the exercise of the police power of the State may,enact and that the constitutional rights of the defendant have in no way been violated. There is and can be no object in this law other than the preservation of the public health in the suppression of a source of disease and contagion, and the substitution of improved sanitary accommodations. These new accommodations are only such as after investigation the Legislature has concluded are of actual necessity in preventing unhealthful surroundings in tenement houses; and we cannot say that they show themselves to be of such an unreasonable nature as to warrant us in declaring the law an unconstitutional invasion of the defendant’s rights. Nor, as stated, do we feel called upon to discuss at length the many points presented in the affidavits submitted upon the motion as to whether school sinks are safe and reliable and the changes proposed are unwise and unnecessary. Upon its face the law does not present an unreasonable requirement either as to the nature of the changes directed or the expense entailed by them, and as the statute is one which prescribes a general regulation not dependent upon a determination as to the dangerous character of the evil sought to be abated, we are not obliged in every instance to pass upon the reasonableness of its enforcement. The distinction
A similar case is that of People v. Cipperly (37 Hun, 324; 101 N. Y. 634), sustaining the constitutionality of the statute which forbade-the sale of adulterated milk (Laws of 1884, chap. 202), wherein it was-said : “ But the defendant takes the broader ground that the Legislature cannot, under the Constitution, prohibit the sale of milk, drawn from healthy cows which in its natural state falls below the-standard fixed by the act, unless such milk or the articles made from, it are in fact unwholesome or dangerous to public health. How is-that question of fact to be determined? The court cannot take-judicial notice whether milk below the standard is or is not unwholesome or dangerous to public health. Is that to be a question for the jury? If so, the court must charge a jury in each case that, if they find milk below that standard to be unwholesome then the statute is constitutional; if they find it' to be wholesome, then the-statute is unconstitutional. Evidently a constitutional question cannot be settled, or rather, unsettled, in that way.. The constitutionality would vary with the varying judgments of juries.”
In the case at bar it is conceded that the requirement of the-statute was not complied with and the nature of the changes directed is not disputed and their cost compared with the value of the-premises appears; and in this action brought to enjoin the continuance of the school sink and to enforce the substitution théreforof the accommodations prescribed in the act, no question remained, excepting whether upon its face the provision of the act was uncon
We have not overlooked the contention based upon the relation of the cost of removing the school sink and replacing it by other accommodations, to the equity which the defendant has in the property. It would appear that the effect of the change would be to practically wipe out the defendant’s equity and thus, so far as she is concerned, the law will if enforced be a great hardship. It will be noticed that her equity is about one-third of the full value of the premises; but, apart from this, if the extent of the injury which would be inflicted upon.a -particular individual was controlling upon the constitutionality of the act, then it would be difficult if not impossible to have any fixed criterion for determining its constitutionality, because, with respect, to the value of certain premises on which a school sink was required to be replaced, the cost .as compared with the value of the property might be very small, whereas in the case at bar it equals and we can conceive of instances where it might exceed the equity of the owner. We have examined the affidavits upon the subject of the character of the premises, the conditions prevailing and the advisability of the changes, but think that they present considerations which are proper to be addressed to the Legislature and not to the court.
' Our conclusion is that the law assailed is constitutional and that the order should accordingly be affirmed, with costs and disbursements.
Van Bkunt, P. J., Patterson, McLaughlin and Laughlin, JJ.a concurred.
Order affirmed, with ten dollars costs and disbursements.-
See 4th ed.— [Rep.