to Congress, in which he recommends the removal of the internal tax from tobacco, that it might thus be placed upon a footing with other agricultural products, says: "Au article which is so generally used, and which adds so much to the comfort of the large numbers of our population who earn their living by manual labor, cannot properly be considered a luxury."

To justify this law it would not be sufficient that the use of tobacco may be injurious to some persons, or that its manipulation may be injurious to those who are engaged in its preparation and manufacture; but it would have to be injurious to the public health. This law was not intended to protect the health of those engaged in cigar-making, as they are allowed to manufacture cigars everywhere except in the forbidden tenement houses.

It cannot be perceived how the cigar-maker is to be improved in his health or his morals by forcing him from his home and his hallowed associations and beneficent influences, to ply his trade elsewhere. It was not intended to protect the health of that portion of the public not residing in the forbidden tenement houses, as oigars are allowed to be manufactured in private houses, in large factories and shops in the two crowded cities, and in all other parts of the State. What possible relation can cigar-making in any build. ing have to the health of the general public? Nor was it intended to improve or protect the health of the occupants of tenement houses. If there are but three families in the tenement house, however numerous and gregarious their members may be, the manufacture is not forbidden, and it matters not how large the number of the occupants may be if they are not divi

When a health law is challenged in the courts as unconstitutional, on the ground that it arbitrarily interferes with personal liberty and private property without due process of law, the courts must be able to see that it has at least in fact some relation to the public health, that the public health is the end actually aimed at, and that it is appropriate and adapted to that end.

This we have not been able to see in this law, and we must therefore pronounce it unconstitutional and void. In reaching this conclusion we have not been unmindful that the power which courts possess to condemn legislative acts which are in conflict with the supreme law, should be exercised with great caution and even with reluctance. But as said by Chancellor Kent (1 Com. 450). "It is only by the free exercise of this power that courts of justice are enabled to repel assaults and to protect every part of the government and every member of the community from uudue and destructive innovations upon their charter rights. The order should be affirmed. All concur. .

CONSTITUTIONAL LAW-JUSTICES OF PEACE ACTING AFTER SEVENTY YEARS OF AGE.

NEW YORK COURT OF APPEALS, JAN., 1885.

LAWRENCE V. MANN.

independently.

If a store is kept for the sale of cigars on the first floor of one of these houses, and thus more tobacco is kept there than otherwise would be, and the baneful influences of tobacco, if any, is thus increased, that floor, however numerous its occupants, or the occupants of the house, is exempt from the operation of the act.

What possible relation to the health of the occupants of a large tenement house could cigar-making in one of its remote rooms have? If the Legislature had in mind the protection of the occupants of tenement houses, why was the act confined in its operation to the two cities only? It is plain that this is not a health law, and that it has no relation whatever to the public health. Under the guise of promoting the public health the Legislature might as well have banished oigar making from all the cities of the State, or confined it to a single city or town, or have placed under a similar ban the trade of a baker, of a tailor, of a shoemaker, of a wood-carver, or of any other of the innocnous trades carried on by artisans in their own homes. The power would have been the same, and its exercise, so far as it concerns fundamental constitutional rights, could have been justified by the same arguments. Such legislation may invade one class of rights to-day, and another to-morrow, and if it can be sanctioned under the Constitution, while far removed in time we will not be far away in practical statesmanship from those ages when governmental prefects supervised the building of houses, the rearing of cattle, the sowing of seed, and the reaping of grain, and governmental ordinanoes regulated the movements and labor of artisans, the rate of wages, the price of food, the diet and clothing of the people, and a large range of other affairs long since in all civilized lands regarded as outside of governmental functions. Such governmental interferences disturb the normal adjustments of the social fabric, and usually derange the delicate and complicated machinery of industry, and cause a score of ills while attempting the removal of one.

ANDREWS, J. Section 12 of article 6 of the Constitution mentions the Supreme Court of the City of New York, the Court of Common Pleas of the same city, the Supreme Court of Buffalo and the City Court of Brooklyn, and continues them in existence by express constitutional mandate. Section 13 is as follows: "Justices of the Supreme Court shall be chosen by the electors of their respective election districts. Judges of all courts mentioned in the last preceding section shall be chosen by the electors of the cities respectively in which said courts are instituted. The official terms of the said justices and judges who shall be elected after the adoption of this article shall be fourteen years from and including the first day of January next after their election. But no person shall hold the office of justice or judge of any court longer than until and including the last day of December next after he shall be seventy years of age.'

The question presented is whether the limita tion of age contained in this section applies to justices of the peace. That it does apply has been determined by the judg. ment now under review. The same question was considered by the General Term of the Fourth Department in the case of the People v. Dohring, 2 Sup. Ct. Rep. 458, and was determined the other way. The Dohring case was decided in 1873, and the question now presented for the first time in this court has never, so far as we can ascertain, been considered in the courts below, except in that case and the one now before us, which was first decided at Special Term in January, 1884. It has come to the knowledge of the court from official sources that since the adoption of the present judiciary article of the Constitution many persons in different parts of the State have been elected justices of the peace who have served after having attained the age of seventy years, some having been elected before and others after they had reached that age. The question is therefore important, not only because it involves the interpretation of a consti

tutional provision, but also for the reason that it practically affects important public and private interests.

mission, "they had no other power but only to keep the peace." But from time to time their powers were enlarged, and they came to constitute a very important agency in the administration of local government in England. They discharged a great variety of duties connected with the support of the poor, the reparation of highways, the imposition and levying of parochial rates, and other local affairs. See enumeration in St. 76, Geo. II, ch. 18.

They were invested with judicial powers for the first

It is however, we think, quite evident that the limitation does not apply to every officer who is invested with judicial power. It is the "office of justice or judge of any court" which the clause declared shall not be held by any person beyond the age specified. But the judicial function may be vested in a person to be exercised for certain purposes and on particular occasions, who does not hold "the office of justice or judge of any court" within the meaning of this clause.

The Constitution itself furnishes one illustration. The president of the Senate, the senators, and the judges of the Court of Appeals comprise the court for the trial of impeachments, created by the 1st section of the 6th article. But neither the lieutenant-governor nor the senators, although they act as judges on the trial of an impeachment," hold "the office of justice or judge of any court." The office which the lieutenant governor holds is that indicated by his title, and so of the senators. The judicial function which they exercise in the particular call is annexed to their respective offices. They sit as judges on the trial of impeachments, but they do not hold the office of judges while acting as such. We think it plain that they would not be disqualified from acting as members of the court after attaining the age of seventy years, under the clause in the Constitution now in question.

Another illustration is furnished in the statutes creating mayor's courts in cities, by which judicial powers are vested for certain limited purposes, in mayors and other municipal officers. There is such a court in the city of Hudson, and it may be in other cities, which is held by the mayor, or by the mayor in conjunction with other officers. The mayor in these cases acts as a judge or magistrate, but the judicial function is incident to the office of mayor. He does not hold the office of judge, and if eligible to the office of mayor, although seventy years of age, he may, we think, discharge the duties connected with that office after that time, including the holding of the Mayor's Court, without a violation of the Constitution.

"

gave them power to try felonies, but then only when two or more acted together, and not singly, and it is said by Blackstone (vol. 1, p. 349), "they then acquired the more honorable appellation of justice." I do not find that they ever exercised in England jurisdiction in civil causes.

The office of justice of the peace was brought here by the English colonists. From the earliest colonial period it has existed in this country. By the code known as "The Duke's Law" for the government of the colony of New York, promulgated in 1665, justices of the peace were commissioned for the towns in the province, with the same powers as in England. The judicial establishment created by "The Duke's Laws," comprised a local court in each town, with jurisdiction of actions of debt and trespass, under £5, to be held by the constable and overseers of the town; a Court of Sessions for each of the three ridings, and a Court of Assize for the whole province. Justices of the peace were entitled to sit as members of the Court of Sessions and the Court of Assize, but not of the town courts. In 1691 the judicial system was reorganized by an act of the Colonial Legislature. By that act the town courts were changed into Courts of Justice of the Peace, to be held by one justice and two freeholders. It was not until 1737 that a justice of the peace was empowered singly to hold a court for the trial of actions. See monograph upon the courts in this State, by Chief Judge Daly, Preface 1 E. D. Smith's Rep.; also 3 Daly's Rep. Appendix.

But from the earliest colonial period until this time, justices of the peace here, as in England, have been invested with various and important functions connected with local administration, quite independent of their judicial authority. A glance at the statutes will show how important a part these officers have had in the administration of the poor laws, the highway acts, the adjustment of town and county charges, and indeed in nearly every department of local administration. It is important to notice that the judicial functions exercised by justices of the peace was a graft upon their original authority, and that the enlargement of their powers has not been in this direction alone, but that by gradual accretion they have come to constitute a most important factor in the corporate administrative life of towns and counties. The gradual growth of their powers and functions furnishes a good illustration of the manuer in which institutions grow up and adapt themselves to the changing conditions and demands of society, until they are brought to subserve in the most effectual way the public interests.

We have failed in the purpose of this brief historical reference to the origin and growth of the office of jus

in the circumstances of its institution and development, and in the variety of its functions from the office of judge of an ordinary court. We know as matter of experience and observation that justices of the peace are not in common speech known as judges, but are uniformly called by the distinctive title of their office, "justices of the peace." Unquestionably their jurisdiction as a tribunal for the trial of small causes

is now the most important of their functions, but they have never lost their character as administrative officers, and in this respect they occupy a position and character and exercise powers unique, and in many respects quite dissimilar to those exercised by other judicial officers.

An examination of other sections in the judiciary article throws light upou the construction of the 13th section, and furnishes strong ground for an inference that justices of the peace were not intended to be included within the restrictive clause. In provisions iutended to apply to judges or justices of inferior courts and also to justices of the peace, the latter are specially mentioned by their name of office, and their inclusion is not left to inference from general words.

The 11th section of the 6th article, after prescribing how judges of Court of Appeals and of the Supreme Court may be removed, proceeds as follows: "All judicial officers, except those mentioned in this section, and except justices of the peace and judges and justices of inferior courts not of record, may be removed," etc.

The same language is repeated in section 18: "Justices of the peace and judges and justices of inferior courts not of record," etc. Justices of the peace are in a general sense judges of an inferior court, but their special designation in these provisions by the title of their office is a recognition in the Constitution itself of their peculiar and distinctive character, and indicates that they were not intended to be included within the general words, "judges or justices of a court," as used in that instrument. The provision in the 13th section that no person shall hold the office of justice or judge of any court," is to be interpreted in the light of the antecedent and subsequent sections, and so interpreting them, justices of the peace are not, we think, included.

There are other considerations which tend to support this conclusion. There was no apparent reason or policy for subjecting justices of the peace to the limitation of age applicable to the general class of judges. Their terms are short, and are left by the amended judiciary article as they were fixed by the Constitution of 1846.

It does not appear that any public inconvenience has resulted from the absence of a limitation of age appli. cable to these officers. Their number, four in each town, afforded a reasonable guaranty that the public service would not suffer by the disability of any of the incumbents arising from age, and the easy means provided for their removal would subject the public at most to only a temporary inconvenience. It cannot be claimed that the prohibition in the 13th section would have been applied to justices of the peace, if they alone had been in the contemplation of the framers of that instrument.

We are of opinion for the reasons stated that a justice of the peace does not "hold the office of justice or judge of any court" within the purview of the 13th section. To avoid misapprehension, it may be proper to say that we do not intend to decide that the prohibition may not apply to persons in office whose official title is not that of judge. If the office is a judicial one, and is created for the exercise by the incumbent of the judicial functions, a court, as for example, a surrogate, quite other considerations would apply than those which appertain to the case now before us. This case rests upon the dual character of the office of justice of the peace, the essential distinction between his duties and functions and those of any other judicial officer, and upon a discrimination made by the Constitution itself. See Settle v. Van Evrea, 49 N. Y.

280.

The order of the General and Special Terms should be reversed and the writ dismissed. All concur.

EJECTMENT— CONTINUOUS ADVERSE POSSESSION BY TACKING.

MARYLAND COURT OF APPEALS, MARCH 27, 1884.

HANSON V. JOHNSON.*

A feme covert died in December, 1854, leaving a will, which was admitted to probate, but was not executed in due form to pass real estate as required by the act of 1842, ch. 293, then in force, because the consent of her husband in writing was not annexed thereto, and also because it was not executed sixty days before her death. By said will she devised a farm to her husband for life, with remainder in fee to her nephew. Under it her husband on the 1st of January, 1855, entered into possession of the property, claiming title as tenant for life, and so continued in possession until the 5th of February, 1868, when he united with the nephew in a sale and conveyance to J., who thereupon entered upon said property, and continued in possession up to the 11th of April, 1882, when the heirs at law of the testatrix brought ejectment against him. Held, 1st. That the claim of title and possession of the husband, as tenant for life under the will, being hostile to the title of the heirs at law, was as against them adverse and exclusive.

2d. That the purchaser from the husband and nephew having immediately taken and held possession under the conveyance to him, his possession was added or tacked to the possession of the husband, making a continuous adverse possession of more than twenty years, which by the Statute of Limitations (21 James I, ch. 16) was a flat bar to the right of the plaintiffs as heirs at law.

This was an action of ejectment, instituted on the 11th of April, 1882, by the appellants against the appellee. The case was tried upon an agreed statement of facts, which are sufficiently set forth in the opinion of the court. By consent a pro forma judgment was entered in the court below in favor of the defendant, with the right of appeal by the plaintiffs.

D. Hopper Emory and Wm. 4. Hammond, for appellants.

James A. Pearce, for appellee.

ROBINSON, J., delivered the opinion of the court. This is an action of ejectment, brought by the appellauts, as heirs at law of Catharine H. Wroth, to recover an undivided half interest in a tract of land, of which she died seised.

The facts are these: Mrs. Wroth died in December, 1854, leaving a paper purporting to be a will, by which she devised the farm in controversy to her husband, Peregrine Wroth, for life, with remainder in fee to her nephew, George A. Hanson.

The will was not executed in due form to pass real estate, as required by the act of 1842, ch.293, then in force because the consent of her husband,in writing, was not annexed thereto, and also because it was not executed sixty days before her death. It was admitted however to probate by the Orphans' Court of Kent county, and under it her husbaud, on the 1st of January, 1855, entered into possession of the property, claiming title as tenant for life, and so continued in possession until the 5th of February, 1868, when he united with the remainderman, George A. Hanson, in a sale and con

*S. C., 62 Md. 25.