Page:Harvard Law Review Volume 4.djvu/404

388 HARVARD LAW REVIEW, discuss the present question, and while it does, in several cases, ap- pear to proceed on the ground that the *' life, liberty, and property " clauses do not include rights Hke that of pursuing any lawful occupation, it might just as well have rested on the ground that the acts in question were a fair exercise of the poHce power of the State, and so were due process of law. On the other hand, the opinions of the dissenting judges, so far as they concern this particular point, are not only of no authority as decisions, but are also somewhat too vague to be of much value in determining the true meaning of the term. There are several cases decided in the Court of Appeals, of New York, in which views similar to those of the dissenting judges in the above cases were expressed. The first of these was Bertholf v. O'Reilly, 74 N. Y. 509. The remarks in that case, on the present question, were only by way of dictum, but they have been approved and enlarged upon in subsequent cases. The question was as to the validity of an act of the New York Legislature creating a cause of action in favor of a person injured by the act of an intoxicated person, against the owner of real property, whose only connection with the injury was that he leased the premises whereon the liquor causing the intoxication was sold. The defendant, a property owner, did not contend that the act was a violation of his " liberty." He argued (i) that it was an infringement of his right of property, and (2) that it violated another and distinct section of the New York Constitution, — al- ready cited, — which declares that no member of the State shall be deprived of any of his rights unless, etc. The act was held a vaHd exercise of the police power, but the court took occasion to remark that "one may be deprived of his liberty in a constitu- tional sense without putting his person in confinement; the right to liberty includes the right to exercise one's faculties and to follow a lawful occupation for the support of life." This view was followed in the case of In re Jacobs, 98 N. Y. 98, where an act prohibiting the manufacture of cigars in tenement- houses was held unconstitutional, as being an infringement of the rights of liberty and property, and as not being a proper exercise of the police power. The court says : — So, too, one may be deprived of his liberty, and his constitutional rights thereto violated, without actual imprisonment or restraint of his person. Liberty in its broad sense, as understood in this country,