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The title of the act prohibits the manufacture of cigars or tobacco “in
the tenement houses of said city.” Section 1 of the act forbids that manufacture “in any rooms or apartments” used in the city of New York as dwellings for the purpose of living, sleeping, or doing of any household work therein. IIeld, that this section is uncoustitutional being in violation of the provisiod of § 16, article 3, of the State Constitution, that no local act “shall contain more than one subject and that shall be embraced in the title," because the act is a local one and relates to two distinct subjects, one of which, is the offense set forth in section one, which is not only not described in the title, but by the frame and phrase of that title is expressly
excluded from it. The doctrine that if a local act contains a subject which is fully expressed
in the title, it is valid as to that one subject, although ivvalid as to a subject not expressed, only applies when there are two or more
subjects, some expresscd and some not expressed. An act cannot be amended by a court by striking out general words and
then after inserting more limited ones, holding the act good as
amended. A statute must stand or fall just as it is enacted without reference to
extraneous facts developed in cases under it.
Appeal by the relator, David A. Paul, from an order of October 13, 1883, affirming an order of Hon. George C. BARRETT, inade at Special Term, Chambers, October 12, 1883, at New York, dismissing writs of habeas corpus and certiorari, and remanding the relator to the custody of the keeper of the Third District Police Court Prison in said city.
The relator Paul was arrested on a warrant issued by Police Justice PATTERSON in New York city, and held for trial on charge of violating chapter 93 of the Laws of 1883, entitled “An act to improve the public health in the city of New York by prohibiting the manufacture of cigars and the preparation of tobacco in any form in the tenement houses in said city."
The two sections of the act which describe the offense are as follows:
Section 1. “The manufacture of cigars or preparation of tobacco in any form, in any rooms or apartments which, in the city of New York, are used as dwellings for the purpose of living, sleeping, or doing any household work therein, is hereby prohibited."
Section 2. “No part of any section of any floor in any tenement house in the city of New York in which the manufacture of cigars or the preparation of tobacco is carried on, shall be used for dwelling purposes."
It appeared by the testimony taken before the police justice that the relator David A. Paul and his family occupied the connected rooms on one side of the middle hallway in the fourth story of the tenement house No. 375 East Eighth street, in the city of New York. This suite of apartments runs from front to rear of the house. The rear room, with windows opening to the air, was used as the kitchen and dining-room. There were two rooms used as bed-rooms, with windows to the hallway, and the room on the front of the house, with windows opening to the street. In this front room the relator made cigars.
William M. Evarts, A. J. Dittenhoefer, and Morris Iise, for relator, appellant. * _The act is local, and embraces more than one subject. It is therefore unconstitutional under section 16, article 3 of the State Constitution which provides that “no private or local act, which may be passed by the Legislature shall embrace more than one subject, and that shall be expressed in the title."
Inasmuch as the act under review in terms prohibits the manufacture of cigars only in the city of New York it is local. Gaskin v. Meek, 42 N. Y. 186; 8 Abb. N. S. 312; People v. O'Brien, 38 N. Y. 193.
The offenses set forth in the first two sections of the act are two separate and distinct offences.
The offense mentioned in section one is not expressed in the title of the act.
Samuel Hand, Thomas Allison, John H. Strahan, and John Vincent, assistant district attorney, for respondent.
* Very elaborate points were used on both sides on the question whether the enacting of the law was or was not a constitutional cxercise of the police power of the State in matters affecting public health. As the court did not pass on this question the portions of the points relating thereto are omitted.
The act only embraces one subject, the protection of the public health against dangers arising from the manufacture of cigars, and the preparation of tobacco in tenement houses in New York City. All its provisions are pertinent to that subject.
It is objected that section 1 would embrace other premises than tenement houses. If that be granted, yet it does not follow that the provisions therein contained are not the proper means to the end expressed in the title of the act. Certainly the enforcement of that provision would tend to prevent, and aid in preventing, the manufacture of cigars or the preparation of tobacco in tenement houses. That it might do more, does not make the act void within the constitutional provision referred to. That provision does not require the details of the bill to be expressed in the title of an act, but merely its subject. Tifft v. City of Buffalo, 82 N. Y. 204, 211; Matter of Volkening, 52 N. Y. 650 ; Matter of Mayer, 50 N. Y. 504; Harris v. People, 59 N. Y. 599; Village of Gloversville v. Howell, 70 N. Y. 287, 290.
But even if the first section did include matters not expressed in the title, that would be no ground for declaring the whole act void or the appellant's detention illegal. He confessedly manufactured cigars in a tenement house in New York city, and his offense falls under section two. The first section is a separable one, and could be stricken from the act, and that which remains would be complete in itself and capable of being executed in accordance with the apparent legislative, intent, wholly independent of that thus rejected.” Matter of Village of Middleton, 82 N. Y. 196, 202, 204; People ex rel. City of Rochester v. Briggs, 50 Id. 553, 565, 566; Kerrigan v. Force, 68 Id. 381, 383, 384; Matter of Metropolitan Gas Co., 85 N. Y. 526; Matter of Ketchum, 31 How. 346, 347, 362; Cooley Const. Lim. (5th ed.) 211, 212; Matter of Ryer, 72 N. Y. 1, 2, 3; Stuyvesant v. Mayor, 7 Cow. 588.
FINCH, J.–The relator was arrested upon a warrant issued by a police justice of the city of New York, which recited an accusation upon sworn information that, “David A. Paul committed the crime of manufacturing cigars and preparing
tobacco in the house No. 375 East Eighth street, the same being a tenement house, occupied by more than three families living independent of one another therein, in rooms in said tenement house which at the time were occupied by said David A. Paul and his family as a dwelling for the purpose of living,
, sleeping and the doing of household work; said rooms or apartments being on the cast or right hand section of the fourth floor in said tenement house, adjoining each other in a contiguous line from the windows opening into the street, to the windows opening into the yard of said tenement house." The precise offense charged, is somewhat obscured by the words describing the character of the house and the location of the roonis, but is nevertheless a specific accusation of manufacturing cigars in a room or rooms, which room or rooms were, at the same time, used as living or household rooms. In other words, the charge asserts the co-existence at the same time and in the saine room or rooms of cigar manufacturing and house
Precisely this offense is described in the first section of the act under which the prosecution was instituted (Laws 1883, ch. 93). That section reads: “The manufacture of cigars or preparation of tobacco in any form in any rooms or apartinents which in the city of New York are used as dwellings for the purpose of living, sleeping or doing any household work therein is hereby prohibited.” The scope of this section seems quite clear. It is not so broad as it appeared to us on the argument. It does not forbid the manufacture of cigars in a dwelling-house. It forbids it only in such rooms or apartments within the house as are at the same time used for the purposes of " living, sleeping or doing any household work # therein.” So that, under this section, in any dwelling house, the same room or apartment, must not, at the same time, be used for cigar-making and for family purposes. But the owner or cccupant of a house may manufacture cigars in one or more rooms therein, provided that he uses them for no household purposes and separates entirely the domestic from the business uses. The prohibition is aimed entirely at the co-existence of the cigar-making, and the sleeping or living of the family in the same room or apartment. If they are kept separate, and in
separate or distinct apartments it is no offense under this first section that the business use and the doinestic use go on under the same roof or in the same house.
That the relator did not preserve such separation is the gist of the charge in the warrant. It accuses him of manufacturing cigars in rooms which, “ at the time,” “ were occupied” by him and his family “for the purpose of living, sleeping and the doing of household work.” Just this offense was charged in the information. The deposition of the complainant averred that Paul manufactured cigars “in rooms or apartments" which were then and there used by the said David A. Paul as a dwelling for the purpose of living and sleeping and doing household work therein.” So that the complaint and the warrant alike charged the offense described in section 1.
But upon the hearing before the magistrate the complainant was examined as required by law (Code Crim. Proc. $ 194). The witness was cross-examined in behalf of the defendant (S 195). The examination was signed by the witness and certified by the magistrate, and is before us, returned as part of the record. It tended to show that an offense had been committed under section 1, and that there was propable cause for believing the relator guilty of violating that section. After describing the location of the rooms as consisting of four, extending through from front to rear, the two middle rooms occupied as bed-rooms and the rear room as a kitchen, which left the front room capable of use as a sitting or living room, he said : "there are residers in front facing the street and residers in the rear facing the yard.” Other statements tended in the same direction, and, while the evidence was weak and lacked precision, there was enongh to call into play the discretion and judgment of the magistrate. He held the prisoner for trial. Presumably the commitment was upon the charge made by the complainant, stated in the warrant, and investigated upon the hearing. But two facts make it possible that such presumption is ill founded. The magistrate apparently had authority to issue process of commitment for a crime developed on the examination although not charged in the original warrant (Code Crim. Proc. § 208), and the evidence