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regulation. It falls within the legislative discretion to decide upon the necessity for the exercise of its police power.
It can not be questioned that the State has the power to prohibit the prosecution of all unwholesome or injurious trades and employments in these large tenement houses in our metropolitan cities, in which the people are often huddled together like cattle. The manufacture of cigars is considered by some to so taint the atmosphere as to endanger the health of the occupants of the house. If this be true, then the legislature has undoubtedly the power to prohibit the prosecution of this trade in a tenement house occupied by three or more families. The injurious effect upon the health of the cigarmaker's family may not furnish the proper justification for legislative interference, except in behalf of minor children. For since the wife and grown children, in the theory of law, if not in fact, voluntarily subject themselves to the unwholesome odors of the tobacco, they do not need and cannot demand the protection of the law. But where a house is occupied by more than one family, the other families have a right to enjoy the possession of their parts of the house, free from the unwholesome or disagreeable odors of a trade that is being plied by another in the same house.
A very common evil is the washing of soiled clothes in tenement houses. There can be very little doubt that infectious and contagious diseases may be communicated and spread over a large area through the medium of soiled clothes, and if the legislature were to see fit to probibit washerwomen from plying their trade in tenement houses, I cannot see what constitutional objection could be raised to such and similar regulations, even though their enforcement may impose very great hardships upon those who can least bear them. Granting that the prohibited trade is unwholesome to the occupants of the house, the advisability of the prohibition must be referred to the legislative discretion.
§ 122c. Confinement of objectionable trades to certain localities. — As long as a trade does not injure the public health, and is the source of no annoyance wbatever to the inhabitants of the locality in which it is conducted, it cannot lawfully be prohibited. Every man has a constitutional right to follow on his premises any calling, provided it does not in any way interfere with another's reasonable enjoyment of his premises. But if the prosecution of a certain trade affects another injuriously, the State may so regulate the trade that the injury may be avoided or reduced to a minimum. If the trade is in itself, and necessarily, harmful to one's neighbors, or to the public health, it may be prohibited altogether. But if it can be prosecuted under certain limitations, so as to avoid injury to others, the police regulation must be confined to the imposition of these needed restrictions, and the trade cannot be absolutely prohibited.
The police regulation cannot extend beyond the evil to be remedied. Where, therefore, certain trades and employments, which serve some useful purpose and add something to the world's wealth, are harmful to the inhabitants of the locality, in which they may be conducted ; and the harm may be avoided altogether, or considerably reduced, by confining them to localities, in which the population is sparse and the residences are few; it is altogether permissible to prohibit the prosecution of these trades in other localities. The instances of this kind of regulation are very numerous. Slaughter-houses have been confined to certain localities, the sale of fresh meat and vegetables has been prohibited except in the public markets, where the articles exposed for sale may be conveniently inspected.? In the same way may the manufacture of pressed hay : and the storage of cotton and other combustible material, such as oil and gunpowder, be prohibited in the densely settled parts of the city, and the prosecution of such trades be confined to certain less dangerous localities. In the same way may the sale of intoxicating liquors be prohibited in certain localities, for example, within a certain distance of the State insane asylum, university or State capitol, provided it be conceded that the sale of intoxicating liquors in those localities, in a legal sense, threatens an injury to the public. But in all these cases the prohibition must be confined to the removal of the evil to be guarded against. There cannot be an absolute prohibition of a trade in a locality in which it may be prosecuted without annoyance or inconvenience to the neighboring residents. Thus it has been held to be unreasonable to prohibit the establishment of a steam engine within the limits of the city."
1 See ante, $ 104 on the police control of employments in respect to locality.
3 “Conceding that the power to abate and remove' should be construed as including the power to prevent, yet this preventive power could only be exercis in reference to those things that are nuisances in themselves and necessarily so. There are some things which in their nature are nuisances, and which the law recognizes as such; there are others which may or may not be so, their character in this respect depending on circumstances.” Lake View v. Setz, 44 Ill. 81.
1 Cronin v. People, 82 N. Y. 318; Metropolitan Board of Health v. Heister, 37 N. Y. 661; Slaughter-house Cases, 16 Wall. 36; Milwaukee o. Gross, 21 Wis. 241;
3 Buffalo v. Webster, 10 Wend. 99; Bush v. Seaburg, 8 Johns. 418; Winnsboro v. Smart, 11 Rich. L. 551; Bowling Green v. Carson, 10 Bush, 64; New Orleans v. Stafford, 27 La. Ann. 417 (21 Am. Rep. 563); Wartman v. Philadelphia, 33 Pa. St. 202; St. Louis v. Weber, 14 Mo. 547; Ash v. People, 11 Mich. 347; Leclaire v. Davenport, 13 Iowa, 210. Contra, Bethune v. Hayes, 28 Ga. 560; Caldwell 0. Alton, 33 Ill. 416; Blooming. ton v. Wahl, 46 ni. 489.
3 Mayor City of Hudson o. Thorn, 7 Paige, 261.
4 State v. Joyner, 81 N. C. 534; Ex parte McClain, 61 Cal. 436 (44 Am. Rep. 554); Dorman v. State, 34 Ala. 216; Boyd v. Bryant, 35 Ark. 69 (37 Am. Rep. 6); Trammell v. Bradley, 37 Ark. 356; Bronsin v. Oberlin, 41 Ohio St. 476 (52 Am. Rep. 90). 6 See ante, $ 103.
In Kentucky, a statute was enacted, forbidding any person from carrying on the stabling business within a specified distance of the grounds of a named agricultural society during the maintenance of its fairs, and imposing a penalty for the breach of the law. In a suit, brought under the statute, it could not be established that the prosecution of the business of stabling in that locality was likely to produce any public harm, and the court therefore declared the regulation to be an unconstitutional interference with the right of enjoyment of private property.?
Another curious and questionable exercise of police power, in prohibiting objectionable trades in certain localities, is to be found reported in the case of Commonwealth v. Bearse, A statute was passed, prohibiting the establishment of any store, tent, or booth, for the purpose of vending provisions and refreshments, or for the exhibition of any kind of show or play, within one mile of the camp-meeting grounds during the time of holding any camp or field meeting for religious purposes, except with the consent of those having the camp-meeting in charge, provided that no one will be required to suspend any regular, usual, and established business, which is being conducted within such limits. The object of the statute was to prevent the disturbance of the religious meeting by the presence of hucksters and peddlers, who are drawn thither purely by the desire to barter with those who are in attendance upon the meeting. Inasmuch as no one's regular business is interfered with, the owner of contiguous land is only prohibited from so using his land as to make a profit out of the camp-meeting, to the annoyance of those who have assembled there for worship. This limitation upon the right of enjoyment of one's lands was declared to be a constitutional exercise of police power. The court say: “ It is contended that the defendant's use of his own land is subjected to the will of another; that he cannot under this law use it for an otherwise lawful purpose, except with the consent of another. But no general control has been assumed over his land; no lawful and established business that he has is interfered with. If it be that of selling provisions and refreshments, he may continue it, although the camp-meeting has assembled. If he purposes to make a use of his land that he would not have made but for the assembling of the camp-meeting, that is not an improper police regulation which requires him to obtain the consent of its authorities. .
1 Baltimore v. Redecke, 49 Md. 217 (33 Am. Rep. 239.) ? Commonwealth v. Bacon, 13 Ky. 210 (26 Am. Rep. 189). 8 132 Mass. 542 (42 Am. Rep. 450). 4 Mass. Statute of 1867, ch. 59.
If a business were in its character such as was, or was liable to become, a nuisance, the legislature might entirely forbid it. It would equally provide that it should not be maintained except with the consent of those in whose vicinity it was to be carried on, on account of the inconveniences attending it. This does not compel one to submit to others the inquiry whether he shall use his own land in a lawful way, but it is a legislative decision that such use is not lawful or permissible, unless consent is obtained from those who are already using their property in such a way that they may be annoyed.” Confined within these narrow limits, it is probable that the constitutionality of the regulation may be sustained, on the ground that the business of catering to the wants of those in attendance on the camp-meeting may become a nuisance, unless it is regulated in this manner. But a law could not be sustained, which compelled a man to suspend his regularly established business during the time of holding the meeting, because in the regular prosecution of his business he might supply the wants of the camp-meeting company. Such a law would be an unconstitutional interfer
. ence with the natural right of enjoyment of one's property.