servatives in dairy products, with certain exceptions, was declared unconstitutional in People v. Biesecker (1901) 169 N. Y. 53, 57 L. R. A. 178, 88 Am. St. Rep. 534, 61 N. E. 990. The court say that "the limits of the police power must necessarily depend, in many instances, on the common knowledge of the times. An enactment of a standard of purity of an article of food, failing to comply with which the sale of the article is illegal, to be valid must be within reasonable limits, and not of such a character as to practically prohibit the manufacture or sale of that which, as a matter of common knowledge, is good and wholesome."

The Penal Code amendment of 1900, $ 384p, prohibiting trading stamps, was not a valid exercise of police power. People ex rel. Madden v. Dycker (1902) 72 App. Div. 308, 76 N. Y. Supp. 111. The trading stamp law of 1904, chap. 657, adding § 3849 to the Penal Code, was also held to be unconstitutional in People ex rel. Appel v. Zimmerman (1905) 102 App. Div. 103, 92 N. Y. Supp. 497.

The act of 1896, chap. 803, requiring the registration of plumbers, is not a valid exercise of police power. Schnaier v. Navarre Hotel & Importation Co. (1905) 182 N. Y. 83, 74 N. E. 561.

The provision of the transportation corporations law, § 69, prohibiting any gaslight company from charging rent on its meters, is a valid exercise of police power. Buffalo v. Buffalo Gas Co. (1903) 81 App. Div. 505, 80 N. Y. Supp. 1093.

The provision of the Penal Code, § 640d, added in 1901, chap. 128, restricting business by real estate agents in cities of the first and second classes, was not a valid exercise of police power. Grossman v. Caminez (1903) 79 App. Div. 15, 79 N. Y. Supp. 900. See Whiteley v. Terry (1903) 83 App. Div. 197, 82 N. Y. Supp. 89, where the court suggests a contrary view of this statute. The latter case was followed by the appellate term of the supreme court in Charles v. Arthur (1903) 84 N. Y. Supp. 284.

Cemeteries.-The act (2 Rev. Laws, 445, § 267) authorizing the authorities of the city of New York to make by-laws regulating or prohibiting interments was a valid exercise of legislative power, and a by-law prohibiting interments in certain parts of the city was sustained as a police regulation. Coates v. New York (1827) 7 Cow. 585; Brick Presby. Church v. New York (1826) 5 Cow. 538.

Children. The legislature had power, by the act of 1866, chap. 245, to authorize the New York Juvenile Asylum to receive and bind out children belonging to certain specified classes. Such legislation "is essential to the good order and protection of the community, and constitutes a part of the general police power of the state. That power cannot be more humanely and usefully exercised than it is

by making salutary and wise provisions for the education, improvement, comfort, and security of the destitute, homeless, and needy children found in the large cities of the state." People ex rel. Splain v. New York Juvenile Asylum (1874) 2 Thomp. & C. 475, affirmed in (1874) 59 N. Y. 629.

The Penal Code provision, § 292, prohibiting the exhibition of a female child under the age of sixteen years as a dancer, is valid as an exercise of police power. The legislature having determined that it is for the best interest of the state and of young girls that they should not be exhibited as dancers before they reach the age of sixteen years, its decision is final, and is not subject to review by the courts upon the ground that the law infringes upon the rights of parents in some particular cases. Re Ewer (1893) 70 Hun, 239, 24 N. Y. Supp. 500, affirmed in (1894) 141 N. Y. 129, 36 N. E. 4, where the court say that the "right to personal liberty is not infringed upon because the law imposes limitations or restraints upon the exercise of the faculties with which the child may be more or less exceptionally endowed."

The Penal Code provision, § 288, which requires parents to furnish suitable medical attendance for their children, is a valid exercise of police power. People v. Pierson (1903) 176 N. Y. 201, 63 L. R. A. 187, 98 Am. St. Rep. 666, 68 N. E. 243.

Commerce. The police power of the state is limited by the Federal Constitution; "that which does not belong to commerce is within the jurisdiction of the police power of the state; and that which does belong to commerce is within the jurisdiction of the United States." The state cannot counteract the commercial power of Congress. The provisions of the forest, fish, and game law, making it a misdemeanor to have in one's possession certain fresh water fish during the close season, violated the commerce clause of the Federal Constitution and could not be sustained as a valid exercise of police power of the state. People v. Buffalo Fish Co. (1899) 30 Misc. 130, 62 N. Y. Supp. 543, Lambert, J., affirmed in (1899) 45 App. Div. 631, 62 N. Y. Supp. 1143, and in (1900) 164 N. Y. 93, 52 L. R. A. 803, 79 Am. St. Rep. 622, 58 N. E. 34, where the court of appeals limits the application of the statute to fish taken in the waters of this state; those imported from a foreign country are not within the prohibition of this statute. Followed in People v. Bootman (1904) 180 N. Y. 1, 72 N. E. 505, and also substantially followed in People v. Booth & Co. (1903) 42 Misc. 321, 86 N. Y. Supp. 272, holding unconstitutional Laws 1902, chap. 194, § 141, requiring possessors of fish to give a bond not to violate the law. See same case, 105 App. Div. 184.

"Each state may pass such laws affecting commerce, to operate

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within its own limits, not in direct conflict with the provisions of the Constitution of the United States or acts of Congress, as are necessary for the preservation of the life, the health, the personal rights, and the property of its citizens and of those enjoying its protection." Fitch v. Livingston (1851) 4 Sandf. 492, affirmed in court of appeals, but not reported.

Commitments.-"Temporary commitments of a summary character may be made ex parte in the exercise of the general police power of the state." Such commitments are due process of law. People ex rel. Ordway v. St. Saviour's Sanitarium (1898) 34 App. Div. 363, 56 N. Y. Supp. 431.

Excise. The civil damage act of 1873, chap. 646, was a valid exercise of police power. Franklin v. Schermerhorn (1876) 8 Hun, 112; Bertholf v. O'Reilly (1878) 74 N. Y. 509, 30 Am. Rep. 323.

The liquor tax law of 1896, chap. 112, is valid as an exercise of police power. People ex rel. Einsfeld v. Murray (1896) 149 N. Y. 367, 32 L. R. A. 344, 44 N. E. 146.

Fires.-The New York city act of 1830, chap. 291, for the prevention of fires, which prohibited any person from keeping more than a specified quantity of gunpowder, was valid as a police regulation. Foote v. Fire Department (1843) 5 Hill, 99.

Fish. The right to fish in the waters of the state is not absolute, but may be limited and abridged by the legislature. The power of the state in this respect may be exercised through local officers. People v. Thompson (1883) 18 N. Y. Week. Dig. 145.

Flag.-Construing § 640 of the Penal Code, as amended in 1903, chap. 272, relating to the desecration of the flag of the United States, the court, in People ex rel. McPike v. Van De Carr (1904) 91 App. Div. 20, 86 N. Y. Supp. 644, say: "It was competent for the legislature to make it a misdemeanor to publicly mutilate, deface, defy, defile, trample upon, or cast contempt, either by word or act, upon the national or state flag, and mutilation of the flag may mean the printing of an advertisement on the ensign itself. Such legislation is within the police power of the state, for it relates to the preservation of the peace. It tends to prevent the commission of acts which would arouse the indignation of the public and lead to the infliction of summary chastisement upon an offender; for it is not a mere rhetorical phrase to say that the people have constituted themselves the guardians and protectors of the national flag;" but "the interdiction by the state of the use of a picture or representation of the American flag as a trademark or upon trade labels, or in connection with an advertisement of merchandise, in no way relates to any one of the legitimate subjects to which the police power of

the state extends. . . . The government of the United States has not prohibited the use of the flag in connection with advertisements. Trade labels, of which a representation of the national ensign forms a part, are accepted at the patent office." Affirmed (1904) 178 N. Y. 425, 70 N. E. 965.

Food products. The act of 1884, chap. 202, to prevent deception in sales of dairy products, was construed in People v. Cipperly (1886) 101 N. Y. 634, 4 N. E. 107, which reversed the judgment of the court below (1885) 37 Hun, 319, on the dissenting opinion of Learned, P. J., who held, contrary to the majority of the court, that § 13, fixing an arbitrary standard by which to determine the quality of milk, was a valid exercise of legislative power. On the subject of adulterated milk see People v. Hills (1901) 64 App. Div. 584, 72 N. Y. Supp. 340; People v. Laesser (1903) 79 App. Div. 384, 79 N. Y. Supp. 470.

The anti-oleomargarine act of 1885, chap. 183, was sustained in People v. Arensberg (1887) 105 N. Y. 123, 59 Am. Rep. 483, 11 N. E. 277.

Section 41 of the public health law was sustained in Crossman v. Lurman (1902) 171 N. Y. 329, 98 Am. St. Rep. 599, 63 N. E. 1097, affirmed in (1904) 192 U. S. 189, 48 L. ed. 401, 24 Sup. Ct. Rep. 234. Foreign insurance companies.-The legislature has power to require foreign insurance companies doing business in this state to contribute a percentage of premiums, to be used in defraying the expenses of a municipal fire department. The act of 1867, chap. 846, was sustained. New York Fire Underwriters v. Whipple (1896) 2 App. Div. 361, 37 N. Y. Supp. 712.

Indian lands. The statute of 1821, chap. 204, authorizing the summary removal, by a judge's order, of intruders on Indian lands, was a valid exercise of the police power of the legislature. "This right of summary removal is indispensably necessary to the protection of its own property, and to enable the state to fulfil its duties and obligations to the remnants of the Indian tribes within its borders, who are too feeble and helpless to protect themselves. It is under no constitutional or other obligation to wait the judicial determination of the courts to remove intruders from what are indisputably the ungranted lands of the state, or the reservations of the Indian tribes." People ex rel. Cutler v. Dibble (1857) 16 N. Y. 203.

Labor. The provision of the labor law (Laws 1897, chap. 415, § 110) prohibiting work in a bakery by an employee more than sixty hours in any one week, or an average of more than ten hours per day, is not a valid exercise of police power. The court say that in its judgment there is "no reasonable foundation for holding this to

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be necessary or appropriate as a health law to safeguard the public health, or the health of the individuals who are following the trade of a baker." It is further said that the limitation of the hours of labor "has no such direct relation to, and no such substantial effect upon, the health of the employee" as to justify the court in regarding it as really a health law. The statute is also condemned because it "interferes with the right of contract between the employer and employees concerning the number of hours in which the latter may labor in the bakery of the employer. The general right to make a contract in relation to his business is part of the liberty of the indivdiual protected by the 14th Amendment." Lochner v. New York (1905) 198 U. S. 45, 49 L. ed. 937, 25 Sup. Ct. Rep. 539, reversing People v. Lochner (1904) 177 N. Y. 145, 69 N. E. 373.

The Penal Code provision, § 384h, subd. 1, prohibiting contractors with the state or a municipal corporation from requiring more than eight hours for a day's labor, is not a valid exercise of police power. It has no relation to public health, morals, or order. People v. Orange County Road Constr. Co. (1903) 175 N. Y. 84, 65 L. R. A. 33, 67 N. E. 129.

The legislature could not, as attempted by the labor law (Laws 1897, chap. 415, §§ 180, 184), require persons engaged in horseshoeing to be licensed as a condition of pursuing such business. It was not a legitimate exercise of the police power, and the court say the law cannot be sustained as being in any just sense a regulation for the promotion of the public health or of the health or morals of the class of persons who follow horseshoeing as a trade; citing Bessette v. People (1901) 193 Ill. 334, 56 L. R. A. 558, 62 N. E. 215, in which a similar statute of that state was held to be unconstitutional. People v. Beattie (1904) 96 App. Div. 383, 89 N. Y. Supp. 193.

Navigation. The legislature had power, by the act of 1839, chap. 175, to regulate the speed of steamboats while passing, coming to, or departing from, the wharves at Albany. People v. Jenkins (1841) 1 Hill, 469.

Nuisance. The legislature had power to authorize the common council of Ogdensburg to adopt ordinances to preserve its harbors and water channels. Conceding that placing an obstruction in navigable waters would be a maritime tort and under the exclusive jurisdiction of United States courts, "still the legislature of a state may confer upon municipalities, where navigable waters and harbors exist, police authority over the same; and a violation of any regulation the municipal authority should adopt, if within the power conferred, would be within the jurisdiction of the state courts."