(dissenting). — I cannot agree with the decision rendered in this case. That part of the act upon which the indictment is founded, is, in my opinion, void. It is as follows: “Any person or persons who shall smoke or inhale opium . . . shall be deemed guilty *167of a misdemeanor,” etc. Session laws of 1883, p. 30. It is amendatory of £ 2073 of chapter 149 of the code, 1881.
The chapter is entitled “Smokingand inhaling opium,” and apparently was mainly intended to prohibit the keeping of resorts for the smoking of opium, and to this extent was a legitimate exercise of police powers. The purpose for which the amendment was adopted is not declared, either in the entitling or in the body of the act, and cannot easily be arrived at. The acts prohibited therein have no reference to the keeping of a resort.
The only other legislation we have found upon the subject is contained in an act approved November 6th, 1877, which amends § 13 of an act approved November 12th, 1875, entitled “An act defining nuisances and securing remedies. ” The chapter in the code does not refer in any way to this act. All these laws were passed by our various legislatures while we were under a territorial form of government.
The offense charged in this case cannot be held to be a nuisance, for it relates purely to the private action or conduct of the individual, and must not be confounded with those acts which directly affect the public. It is thought that the act in question is sui generis, that there is none other of a similar nature in force in this country, or one that has ever been sustained by the courts since we became an independent nation, although there may be an occasional instance somewhat closely allied to it.
Legislation, however, has ordinarily been confined to those cases where the act of the person directly and clearly affected the public in some manner. But here a single inhalation of opium, even by a person in the seclusion of his own house, away from the sight and without the knowledge of any other person, constitutes a criminal offense under this statute. And this regardless of the actual effect of the particular act upon the individual, whether beneficial or injurious.
*168It is urged tbat there could be no conviction in such a case for the want of proof. JBut the difficulty or impossibility of conviction could not affect the criminality of the act. Also the evidence might sometimes be furnished by the admission, or confession of the guilty party, if in no other way. It is admitted that this law can only be sustained upon some one or more of the following grounds, viz.: That smoking or inhaling opium injures the health of the individual, and in this way weakens the state. That it tends to the increase of pauperism. That it destroys the moral sentiment and leads to the commission of crime. In other words, that it has an injurious effect upon the individual, and, consequently, results indirectly in an injury to the community. And it is claimed that we must presume that the legislature had some one or more of these objects in view in enacting the law, although there is nothing upon the face of the act to indicate the legislative intention. This is going to a very great and dangerous extent to sustain legislation, in this most important branch of our social structure.
In the case of the People v. West, 106 N. Y. 293 (12 N. E. Rep. 610), in rendering its opinion, the court said: “ It is not necessary to the validity of a penal statute that the legislature should declare on the face of the statute the policy or purpose for which it was enacted.” The statement was apparently not necessary in the decision of that case, and it is a noticeable fact, in this connection, that, in all the cases cited, the purposes of the acts were declared either in the entitling or in the body thereof, and were placed upon some one of the grounds mentioned, as affecting the health or safety of the public. The act in question, in People v. West, was entitled ‘ ‘ An act to prevent deception in the sale of dairy products, and to preserve the public health.”
In the case of Bertholf v. O'Reilly, 74 N. Y. 509, which involved the validity of an act making the owner of real *169estate whereon he permitted intoxicating liquors to be sold, liable for damages in injuries resulting to individuals drinking it, the act declared its purpose to be “ the suppression of intemperance, pauperism and crime.”
In the Slaughter House Cases, 16 Wall. 36, involving an act granting to a corporation the exclusive right to maintain slaughter houses within the limits of a certain prescribed district, and prohibiting all other persons from building, keeping or having such houses therein, the act was entitled “An act to protect the public health.”
There may be no good reason for requiring the purpose of the law to be stated upon its face in those cases wherein the injurious effect of the act prohibited thereby is demonstrated by the act itself, like the cutting off of the hand. But there is a substantial difference between such a case and those cases wherein the result of the act, as to its being harmful, is doubtful or not apparent, and perhaps occasionally having an opposite effect in the same or different individuals. In such cases, at least, the object or purpose should be expressed.
In all the eases above cited, the prohibited act directly affected and concerned the public, not simply through any primary effect upon the particular person, and therefore the}' do not apply with much force to the present case. Section 1924 of the organic act would seem to require that the object of the law should have been more fully expressed in the title, although it may be doubtful as to whether it is within the reason there given. The object must have been to serve some public purpose in one of the ways mentioned, if it is valid, not merely to prevent the smoking of opium. That was only the means by which the final end or object was to be attained. See Harland v. Territory, 3 Wash. T. 131, 145 (13 Pac. Rep. 453).
There is no good reason why the legislature shoubl fairly declare the object or purpose of all such laws, limiting the personal conduct of the citizen, at least, where tN ) *170direct or primary effect is upon himself only, and there are many good reasons why it should be required.
Unless the legislature has, as it is claimed it does have, the absolute uncontrolled right to determine that the effect of any personal act it chooses to prohibit is injurious to the particular citizen, and this is untenable, then the authority cited, stating that it is not necessary to declare the purpose of the act upon its face (People v. West), is not applicable here, as an entirely different case is presented. Limiting the scope of the act to eases where injury results would not merely be declaring its purpose, but would be so framing the act as to keep within the legislative province. For clearly where there is no resulting injury there is no right to restrain, if laws restraining the personal conduct can be sustained at all where the act forbidden does not affect the public, except through injury to the particular individual, and thereby possibly injuring the community in some one of the ways specified. Certainly, any idea of carrying such laws to a great extent would be calculated for an advanced public sentiment.
However, if the act in question declared that no man should willfully injure himself by smoking or inhaling opium, thereby limiting its scope to such cases where injury resulted, there would be strong, and I think valid, reasons for sustaining it upon some one or more of the grounds mentioned. Every act of the individual which has a direct tendency to render him unfit to perform the duties he owes to society, is a rightful subject of legislation. ■ The principle is a just and legal one. A man has no right to do that which will render himself an imbecile, or a pauper. Society has an interest in the promotion and preservation of the bodily, mental and moral health of .each individual citizen. And laws tending to such results sffpuld be upheld in all reasonable ways. But because it is time that personal acts are rightful subjects of legislation to the.- extent where they clearly interfere with the *171reciprocal rights of others, and their control is generally recognized as being within the police powers of the state, or because they may be a rightful subject of legislation to that further extent where they merely result in injury to the individual and thus less directly to the state, which, however, has not as yet been very generally, if at all, recognized heretofore in this nation; it cannot be that every self-regarding act of the person which the legislature may choose to prohibit upon the ground that it is injurious to the individual, and thereby to the state, must be allowed to stand unquestioned through the courts, or that the courts have no duty to perform in the premises as to determining whether the legislature has exceeded the limit of its legitimate powers under the constitution, unless a particular specific constitutional provision can be shown which has been violated.
It is the one great principle of our form of government, expressed throughout that soul-inspiring document, our national constitution, that the individual right of self-control is not to be limited, only to that extent which is necessary to promote the general welfare. And these are not only questions of natural right but of constitutional right as well. It is none the less a constitutional guaranty because general in its nature, or implied in the bill of rights, or because each particular act wherein the will of the citizen should not be interfered with is not pointedly and specifically guaranteed. Such particularity would be impossible. When one becomes a member of society he necessarily parts with some rights or privileges which, as. an individual, not affected by his relations to others, he might retain.
A body politic is a social compact by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good. This does not confer power upon the whole people to control rights which are purely and *172exclusively private, but it does authorize the establishing of laws requiring each citizen to so conduct himself and so use his own property as not unnecessarily to injure another. This is the very essence of government. See Munn v. State of Illinois, 4 Otto, 113.
It is contended here that the legislature, being the sole and absolute judge of the effect upon the individual, of the act forbidden, has decided every act of smoking or inhaling opium to be injurious to the person so doing, no matter how long or how short the duration, or how great or how small the quantity, or under what conditions or circumstances the same might have been used, and that there is no right of appeal to'the courts in this particular. Such a construction of the law makes the legislature the sole judge of the constitutionality of its own acts of this character.
There must be a right of review or control, to some extent, in the courts. Each citizen is entitled to the protection of all the branches of the government. A declaration by the legislature as to what the law shall be, is not necessarily a conclusion reached by the state. The legislature is not the state, although a very important or essentiaL. part of it. The power to protect the rights of the citizen from the wrongful effect of such legislation is peculiarly adapted to, and within the province of, the judicial branch of the government, and can be exercised in one of two ways. Either the scope of such legislation should be limited to those instances where injury results as a matter of fact, and resorting to a trial in court to prove that fact in each individual instance, or if this would render an enforcement of the law impracticable, and a few must suffer for the public good by being prevented from regulating their own personal conduct in some matters beneficial or not harmful to them, in order that another class may be prevented from like actions which to such persons would be harmful, then by recognizing a discretionary power in the legislature to prohibit such acts entirely, and at the *173same time recognizing the duty of the courts to correct abuses thereof when the act prohibited should have no real relation or tendency to produce any of the results sought to be avoided.
To declare any private act or omission of the citizen to be a crime, which does not result in any injury to the person and could not possibly affect society, under any other possible view except the last one, would be an unwarranted infringement of individual rights, and therefore unconstitutional. Individual desires are too sacred to be ruthlessly violated where only acts are involved which purely appertain to the person, and which do not clearly result in an injury to society, unless, possibly, thus rendered necessary in order to prevent others from like actions which to them are injurious.
A great principle is involved in this character of legislation. Suppose the legislature had forbidden the use of opium in any manner. If the unqualified right to prohibit its use in one way exists, this carries with it the right to prohibit its use entirely. Substitute any other substance, whether commonly used as medicine, food or drink, and still such a statute must be upheld if the courts have no right of review. It is no answer to say that the legislature would do nothing unreasonable. No man knows as to this. The question is, has it the arbitrary power and right ? Neither is it a sufficient answer to say that a man may appeal to a subsequent legislature for redress. That where such laws are wrongfully passed, the remedy must be sought in this way; and that until another legislature is convened, the citizen must tamely submit to and obey the restrictions and commands of every conceivable law relating to his personal conduct that through some possible legislative caprice or inadvertence might find its way upon the statute books, before the question could be again submitted to another legislature and its constitutionality again *174be tried by it, as that is virtually what the question would be. If it tended to promote the public welfare in any of the ways specified it would be constitutional, and if it did not do so it would then be unconstitutional and void. And under such a view the legislature must decide this.
Because the right to a trial in the courts as to the fact of injury, resulting from the act in the particular case, would complicate matters and that it would be difficult to convict, affords no reason for taking away or denying the right, unless its effect would be to practically nullify the law, and not even in that case unless there is some other safeguard that mustbe held sufficient under the circumstances, such as limiting the action of the legislature to those matters wherein the injurious effects of the prohibited act would be clearly apparent in the great majority of cases. It is better that there should be difficulties in the way of conviction, rather than that the citizen should be' arbitrarily and needlessly deprived of his right to regulate his own personal conduct in matters that purely appertain to himself, or that his constitutional guaranty of life, liberty and the pursuit of happiness should be violated. Laws that are enacted in response to a general public sentiment are easily capable of enforcement. And otherwise, in a representative form of government, where the will of the majority is supposed to control, laws which do not receive the popular support ought not to have been enacted, and, under such circumstances, no great harm results if they should practically fail in their execution, and become dead letters upon the statute books.
Whichever view is taken of the duty of the courts in the premises — whether to hold such laws must be limited to instances where injury results to the particular person or otherwise — the act in question should be held void. It is altogether too sweeping in its terms. I make no question but that the habit of smoking opium may be repulsive and degrading. That its effect would be to shatter the *175nerves and destroy th'e intellect; and that it may tend to the increase of pauperism and crime. But there is a vast difference between the commission of a single act, and a confirmed habit. There is a distinction to be recognized between the use and abuse of any article or substance.
It is also a well-known fact that opium, in its different forms, is frequently administered as a medicine with beneficial results; and while it may not be customary to administer it by way of inhalation, yet the legislature should not arbitrarily prevent its use in such a manner. If this act must be held valid it is hard to conceive of any legislative action affecting the personal conduct, or privileges of the individual citizen, that must not be upheld. "We have been cited to no law, which has been sustained, that goes to the extent that this one does. It has no reference to the manufacture or sale of the substance. It is not based upon any pernicious example that the commission of the act might be to others. The prohibited act cannot affect the public in any way except through the primary personal injury to the individual, if it occasions him any injury. It looks like a new and extreme step under our government in the field of legislation, if it really was passed for any of the purposes upon which that character of legislation can be sustained, if at all. An act somewhat similar to it was held void in re Ah Jow, 29 Fed. Rep. 181.
In former times laws were sometimes passed limiting individual conduct in ways that are now considered ridiculous. Such as regarding the number of courses permissible at dinner. The length of pikes that might be worn on the shoes, etc. But these were founded on the pique or whims of an exacting and tyranical aristocracy, rather than on reason. Or, as in the case of the Connecticut blue laws, upon views of propriety or religion that do not now obtain with anything like the former degree of strictness.
Judge Cooley, in his admirable work on Constitutional Limitations, star page 385, says: “ In former times sump-*176tuary laws were sometimes passed, and they were even deemed essential in republics to restrain the luxury so fatal to that species of government. But the ideas which suggested such laws are now exploded utterly, and no one would seriously attempt to justify them in the present age. The right of every man to do what he will with his own, not interfering with the reciprocal right of others, is accepted among the fundamentals of our law. The instances of attempt to interfere with it have not been numerous since the early colonial days.
“ A notable instance of an attempt to substitute the legislative judgment for that of the proprietor, regarding the manner in which he should use and employ his property, may be mentioned. In the State of Kentucky, atan early day, an act was passed to compel the owners of wild lands to make certain improvements upon them within a specified time, and it declared them forfeited to the state in case the statute was not complied with. It would be difficult to frame, consistently with the general principles of free government, a plausible argument in support of such a statute. It was not an exercise of the right of eminent domain, for that appropriates property to some specific public use upon making compensation. It was not taxation, for that is simply an apportionment of the burden of supporting the government. It was not a police regulation, for that could not go beyond preventing an improper use of the land with reference to the due exercise of rights and en joyment of legal privileges by others. It was purely and simply a law to forfeit a man’s property if he failed to improve it according to a standard which the legislature had prescribed. To such a power, if possessed by the government, there could be no limit but the legislative discretion; and if defensible, on principle, then a law which should authorize the officer to enter a man’s dwelling and seize and confiscate his furniture if it fell below, or his food if it exceeded, an established legal standard, would be equally *177so. But in a free country such laws, when mentioned, are condemned instinctively.” This statute referred to, was subsequently declared unconstitutional in Gaines v. Buford, 1 Dana, 484, as appears in tbe note in said work.
In Mugler v. Kansas, 123 U. S. 623 (8 Sup. Ct. Rep. 273), which was a ease arising under the prohibitory liquor laws of that state, the court in its opinion discussed the question, somewhat, as to whether the state could prohibit a man from manufacturing liquor for his own personal use, and concluded it could do so if it affected the rights and interests of the community. As to where the power rested to decide as to this, the court said: “But by whom, or by what authority, is it to be determined whether the manufacture of particular articles of drink, either for general use or for the personal use of the maker, will injuriously affect the public? Power to determine such questions so as to bind all must exist somewhere, else society will be at the mercy of the few, who regarding only their own appetites or passions, may be willing to imperil the peace and security of the many, provided only they are permitted to do as they please. Under our system, that power is lodged with the legislative branch of the government. It belongs to that department to exert what are known as the police powers of the state, and to determine, primarily, what measures are appropriate or needful for the protection of the public morals, the public health, or the public safety.
“It does not at all follow that every statute enacted ostensibly for the promotion of these ends is to be accepted as a legitimate exertion of the police powers of the state. There are of necessity, limits beyond which legislation cannot rightfully go. While every possible presumption is to be indulged in, in favor of the validity of a statute, the courts must obey the constitution rather than the lawmaking department of government, and must, upon their own responsibility, determine whether, in any particular case, these limits have been passed. ” Here a discretionary *178power in the legislature is distinctly recognized, and also a final revisory or restraining power in the courts to correct what may appear to be abuses. The court further said, quoting partly from Marbury v. Madison, 1 Cranch, 137: 1 ‘1 To what purpose are powers limited, and to what purpose is that limitation reduced to writing, if those limits may, at any time, be passed by thoseintended to be restrained. The distinction between a government with limited and unlimited powers is abolished if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation.’
“The courts are not bound by mere forms, nor are they to be misled by mere pretenses. They are at liberty — indeed, are under a solemn duty — to look at the substance of things, whenever they enter upon the inquiry whether the legislature has transcended the limits of its authority. If, therefore, a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is a palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the constitution.”
From the best investigation I have been able to give this subject, I am forced to the conclusion that the judgment of the court below should have been reversed, and the defendant discharged.
Stiles, J., concurs in the dissenting opinion.