The Multiple Dwelling Act is aimed at many evils, but most of all it is a measure to eradicate the slum. It seeks to bring about conditions whereby healthy children shall be born, and healthy men and women reared, in the dwellings of the great metropolis. To have such men and women is not a city concern merely. It is the concern of the whole State. Here is to be bred the citizenry with which the State must do its work in the years that are to come. The end to be achieved is more than the avoidance of pestilence or contagion. The end to be achieved is the quality of men and women. Nothing herein contained, says the statute (City Home Rule Law, § 30), shall "restrict the powers of the legislature to pass laws regulating matters of state concern as distinguished from matters relating to the property, affairs or government of cities" (cf. § 11, subd. c, as amended in 1928; Constitution, art. XII, § 4). If the moral and physical fibre of its manhood and its womanhood is not a State concern, the question is, what is? Till now the voice of the courts has not faltered for an answer (People ex rel. Einsfeld v. Murray,149 N.Y. 367; Admiral Realty Co. v. City of N.Y., 206 N.Y. 110; Matter of McAneny v. Bd. of Estimate, 232 N.Y. 377;Augustine v. Town of Brant, 249 N.Y. 198, 204; Cleveland v.City of Watertown, 222 N.Y. 159, 174; cf. Maxmilian v.Mayor, 62 N.Y. 160; Tenement House Dept. v. Moeschen,179 N.Y. 325; Prime v. City of Yonkers, 192 N.Y. 105).
A wide field remains for action by the city, and this, too, within the field of welfare legislation. Many welfare measures are city affairs solely. If a city lays out a park or builds a recreation pier or provides for public concerts, *Page 485 it is exercising the police power, and is acting for the welfare of its inhabitants, yet acting in a matter that is distinctively its own affair, a matter that is bound up with its own business, its own finances, its own corporate activities. The State may not say by local law adopted by a majority vote, you must lay out a park in such a place or of such a size or at such a time. The State may have its own parks, but that is another matter. Even in situations where the affair to be regulated does not involve a corporate activity of the city, is not a city affair in that sense, but is merely a matter of local interest or concern, the State, acting by local laws and without an emergency message, must keep its hands off unless a State concern is involved or affected, and this in some substantial measure. There may be difficulty at times in allocating interests to State or municipality, and in marking their respective limits when they seem to come together. If any one thing, however, has been settled in this realm of thought by unison of opinion, it is the State-wide extension of the interest in the maintenance of life and health. The advancement of that interest, like the advancement of education, is a function of the State at large. I do not know how many statutes we shall have to uproot, nor where we shall have to draw the line hereafter, nor what confusion we may be inviting, if we speak differently now.
The act is not a zoning resolution, nor the equivalent of one, though in it are provisions as to the height and area of buildings. A zoning resolution in many of its features is distinctively a city affair, a concern of the locality, affecting, as it does, the density of population, the growth of city life, and the course of city values. Whatever restraint in respect of height and area is imposed by this act upon the zoning power of the locality is incidental and subordinate. The power is left intact except for the declaration of a minimum below which restriction may not fall, a minimum believed to be essential *Page 486 to healthful and decent living. If the minimum is maintained, ordinance and resolution may add to it at will (Multiple Dwelling Act, § 365). A different question would be here if the city were restrained from increasing the restriction in respect of height and area as well as from reducing it. The concern of the State to protect the health and welfare of its inhabitants may not stand in the way of action by the city consistent with the ends envisaged by the State, but adding greater safeguards with reference to related ends that are municipal or urban. So the statute says. So, it may be argued, the law would say anyhow, if the statute had been silent. There can be no legitimate concern of the State, or none at least is now suggested, that would throw open Murray Hill to industry and trade if the city authorities were to hold fast to the belief that it should be preserved for residences only. We may say the like of other changes whereby density of population would be magnified, with new pressure on streets and sewers and means of transportation, against the effort of the locality to distribute or reduce it. Interference in such a degree would be intrusion upon a concern or interest of the city without a compensating offset in the advancement of a concern or interest of the State. So, at least, we may assume until something of the kind is threatened. It has not been threatened yet. The city may lay out its districts as it pleases. It may make the height of its tenements even lower, and their courtyards even larger. All that it may not do is to deny to its inhabitants the light and the air, the sanitary safeguards, and the protection against fire, without which healthy human beings cannot live to be the mainstay of the State, the source and the pledge of its prosperity and power.
The consequences of a different holding are indeed disquieting. By section 2 of the Home Rule article, the Legislature may not act with reference to the property, affairs or government of cities through the usual *Page 487 forms of legislation except by general laws, and by the same section a law is not general unless it applies to every city. A tenement law applicable to New York, Buffalo and Rochester would not be a general law. A tenement law applicable to every city except Salamanca or Long Beach would not be a general law. If one were to go through the statute books and pick out the acts relating to health or education or public order that apply to cities other than New York, or that apply to New York and not to other cities, acts passed since the adoption of the Home Rule Amendment and by a majority vote, the list would be impressive. If all these acts are in truth invalid, we must submit to the inconvenience that would result from such a holding. It is not one to be invited The very fact that by the City Home Rule Law, contemporaneous substantially with the amended Constitution, the Tenement House Law was excepted from the class of local statutes affecting the affairs of cities is evidence that it was understood by contemporaneous opinion to be matter of State concern and not an affair of the locality. So, I think, it is, if matters of State concern are to have the meaning and effect that has been theirs throughout the years (Prime v. City ofYonkers, supra, and cases cited). The precedents of legislation (see e.g., Public Health Law [Cons. Laws, ch. 45], § 2-b, §§ 70, 71; City Home Rule Law, § 21; Penal Law, § 722; Labor Law [Cons. Laws, ch. 31], § 474-a; Tenement House Law, as amended by L. 1926, ch. 176; L. 1927, ch. 674; L. 1929, ch. 691), the decisions in other States where home rule cities have been organized, or at least their reasonable implications (In reHoffman, 155 Cal. 114; St. Louis v. De Lassus, 205 Mo. 578), as well as the judgment of the commentators (McBain, N Y Proposal for Municipal Home Rule, 37 Political Science Quarterly, 655, 669; cf. McBain, Principles and Practice of Municipal Home Rule, pp. 138, 176, 203, 257), converge to that conclusion.
If the act is not in a prohibited sense an interference *Page 488 with municipal affairs, neither is it a change of municipal government. The same city officers who have been charged with the enforcement of the law regulating the construction and use of tenements are charged with it today. True, their duty is to enforce a different law, and one that they are without power to modify except to increase its restrictions. But this is not a change of government. If I am right in the meaning I have given to city and State affairs, there never has been a time when the power lodged in the city officers to regulate the form of tenements has been divorced from State control. The government of the city remains precisely what it was. The power was subject in its creation to the overriding action of the State, and subject to that action it continues unimpaired.
The case for the plaintiff is not helped because cities other than New York receive a grant of broader power. Such cities are left free to adopt the statute as their own by the passage of a local law, or to ignore it altogether. What is adopted by a local law may obviously be rejected or ended by a repeal of the local law. This enlargement, if such it be, of the powers of the other cities may or may not be ineffective as to them. The question is not here. If invalidity be assumed, the only consequence would be to invalidate the change, and not to eliminate the exception. We cannot fairly say that the Legislature would have refused to give its approval to the new system imposed by this act upon the city of New York if it had been informed that there was a flaw in the provision whereby the adoption of a like system was made optional for others. The regulation of buildings in the metropolis was manifestly its chief concern. We are warned by the statute to give effect to what is valid if there is invalidity in part (§ 366). The Legislature held the view that housing conditions in the metropolis made sanitary and fire regulations imperative for the protection of life and health. It found in other cities no such pressing need *Page 489 and left the form of regulation there to the control of local officers. The measure of the need and the nature of the remedy may be marked by the Legislature through statutes local in operation and preferential in effect if the interest to be promoted is the welfare of the State.
I come back, then, to this, that the fundamental question to be determined is the line of division between city and State concerns. In every case, "it is necessary to inquire whether a proposed subject of legislation is a matter of State concern or of local concern" (Fourth Report of Home Rule Commission, Legislative Document, 1928, No. 55, p. 14). If the former, the ordinary course of legislation may be followed. There are some affairs intimately connected with the exercise by the city of its corporate functions, which are city affairs only. Illustrations of these I have given, the laying out of parks, the building of recreation piers, the institution of public concerts. Many more could be enumerated. Most important of all perhaps is the control of the locality over payments from the local purse (Matter ofMayor, etc., of N.Y. [Elm Street], 246 N.Y. 72). There are other affairs exclusively those of the State, such as the law of domestic relations, of wills, of inheritance, of contracts, of crimes not essentially local (for example, larceny or forgery), the organization of courts, the procedure therein. None of these things can be said to touch the affairs that a city is organized to regulate, whether we have reference to history or to tradition or to the existing forms of charters. Subjects such as these, not affecting the welfare of the inhabitants of the city qua inhabitants thereof, are not covered by the grant of power to regulate their conduct and make provision for their welfare, though the act or omission be within the municipal territory. A zone, however, exists where State and city concerns overlap and intermingle. The Constitution and the statute will not be read as enjoining an impossible dichotomy. The question to be faced is this, has the State surrendered the power to enact *Page 490 local laws by the usual forms of legislation where subjects of State concern are directly and substantially involved, though intermingled with these, and perhaps identical with them, are concerns proper to the city? So far as judicial precedents in the courts of New York are available for guidance, they deal with the interpretation of the "affairs" of cities under the provisions of article XII of the Constitution as it stood before its revision in 1923 (People ex rel. Einsfeld v. Murray; Admiral RealtyCo. v. City of N.Y.; Matter of McAneny v. Bd. of Estimate,supra). They all point, however, to the holding that affairs, though concerns of a city, are subject, none the less, to regulation through the usual forms of legislation, if they are concerns also of the State. So far as legislative practice since the constitutional amendment is available for guidance, it points for the most part the same way. Finally, these aids to construction are supplemented and confirmed by the basic principle that the power to adopt laws according to the usual forms of legislation resides with the Legislature except in so far as it has been limited or surrendered, and that neither limitation nor surrender will be inferred unless intention is revealed with reasonable clarity.
"The provisions of this article shall not be deemed to restrict the power of the Legislature to enact laws relating to matters other than the property, affairs or government of cities" (Constitution, art. XII, § 4). The reservation of this power is merely another way of saying that the Legislature is unfettered as to "matters of state concern" (City Home Rule Law, § 30). How great must be the infusion of local interest before fetters are imposed? There is concession even by the plaintiff that if the subject be "predominantly" of State concern, the Legislature may act according to the usual forms. But predominance is not the test. The introduction of such a test involves comparisons too vague and too variable, too much a matter of mere opinion, to serve as an objective *Page 491 standard. To adopt it is to infect our legislation with the virus of uncertainty. The city has power under its charter to define the offense of disorderly conduct in its streets. The State by a law applicable in the city of New York and no where else defines disorderly conduct in other terms (Penal Law, § 722, as amended in 1924). The validity of the new definition has not been doubted, yet concerns both State and local are affected by the change. Who shall say in what proportion? Considerations of "more or less" will lead us in such a case, and in many others, into a morass of indecision. The test is rather this, that if the subject be in a substantial degree a matter of State concern, the Legislature may act, though intermingled with it are concerns of the locality. Measured by that test, this statute must prevail. I do not say that an affair must be one of city concern exclusively to bring it within the scope of the powers conferred upon the municipality by section 3 of the Home Rule article and section 11 of the City Home Rule Law in cases where the State has not undertaken to occupy the field. I assume that if the affair is partly State and partly local, the city is free to act until the State has intervened. As to concerns of this class there is thus concurrent jurisdiction for each in default of action by the other. The power of the city is subordinate at such times to the power of the State, but may be exerted without restraint to the extent that the two can work in harmony together.
The judgment should be reversed and the complaint dismissed.