Mayor of New-York v. Ordrenan — 12 Johns. 122

Majority

p. 122

The Mayor, Aldermen, and Commonalty of the City of New-York against Ordrenan.

Headnote

In action of debt to recover penalties to . 3,000 dollars, itbv the corporation,, declaring it unlawful for any person brought by the mayor, aidermonaity ofth-B. Forfc,'uii£r’a dinincp of the «nrhnretion. within Yeríam city, to keep aUnPgreatef to. i^póunds^t1 or^ii^an^'oife iñaCa aderfa?n manner prethat the person offending, &c. should forfeit the gunfmder so unlawfully thPts\imnon25. pow%er°f-SoUn that proportion orl¿ quattf tyj,. &c.,-. ^and passed by virtue of the authbrity given'by an act of the legislature,.(sess. 29. c. 126. s. 15.) passed the 2 á April, 1806, for the better government of the city of New -York, &c.’authorizing tlie corporation to make ordinances,*&c. to.regulate the keeping, &c. of gunpowder, &c. and to provide for the forfeiture thereof, if kept contrary tó such by-law or- ordinance; and further (s. 16.) empowering tlie corporation to impose pénalties, in all cases not otherwise provided for>in the act,, for the non-observance of such bylaws ánd/ordioaucés, iiot éxceeding 25p dollars/ it was held, that the*plaiiiliflFs couldmot exact, as penalties for any one offence, or for the violation of the by-laws, in any one transaction, a greater isum than 250 dollars. . ■ ' ‘

•And whether, under the powers vested in the corporation by the act ¡of the 2d jtpr.il, .Í8d6,'the corporation" could impose any penalty beyond iUe forfeiture of the.gunpowder" so unlawfully‘kept ?•. Qucere.. \

But, at any rate,, the corporation, in passing the by-law in .question, exceeded the power given by the act of ,the legislature, Whether, tinder the general powers conferred by the charters'of the corporation, they had authority to pass such a by-law, and the action-can-'be supported on that authbrity alone? Qucere. But the act of the legislature, on the subject matterof ¡the" by-law, having been'passed at the instance-of the corporation, it so far operates as a limitation of 'the.general and undefined powers in-ltió" charters. • - v

THIS was an .actioij , of debt. for 3,000 dollars, for certain penalties; The'declaration ■contained, -three counts. The first. count stated, -.that by an act of the. legislature' passed the second. . ' ' .. ' X •' v " 1806, entitled “art act for the better government of of Á the city of New-York, and .to grant certain additional powers .dnd ,rights- to the mayor, aldermen,, and commonalty thereof,”' '&G- (sess, 29. c.' 126. s., 13.). . tlie ..plaintiffs were:';empo\vered to pass, anal' -to' provide, for .the,due execution of, .ordinances, as they may deem, proper, for ttie;pi‘evention of firés, Sic.; “• and .also to regulate tlie keeping, carting, conveying, or'transport- mg. of gunpowder,,, bv apy other combustible* &c„ within.the bounds of the said city, and to p.rpvide for the forfeiture therédf, if‘the. same shall be kept, contrary, to ,suc'KÍáw*’’ &c. ■.“And,, .foh the. more effectual and perfect execution of, the laws' and. ordinances of. the .mayor,- aldermen, and commonalty)” it was, by the 16th section.of thesame act, declared, “'that in all cases not otherwise provided for in this act, it shall and maybe • ‘ • -' v - - n lawful1 for the said mayor, &c. from time to time, to impose ' ’ . . . - 7 "" •. • - .- 1 . . • .. ' pénalties' for. the'- nqn-observance- of the -same,, not .'exceeding. two hundred' and-fifty dollars,’’-i^c* That.'in pursuance of the-act, the plaintiffs, on'the 2d MurcfaMVi, made-a by-law, or ordinance, by which, among other things; it was ordained, ^ should • not be lawful for any person to have, 'or .keep- any •<I$ian^tY °f. gunpowder,, at -one. .time*, exceeding" tmenty-eight pounds/ weight, in any one place,; S¿c. .withiá. pertain-b'oundaiies

p. 123

therein specified; and that the said quantity of twenty-eight pounds should be separated into four parcels, and be kept in four different stone or tin vessels, &c. And that if any.person should keep a greater quantity of gunpowder, at one time, than twenty-eight pounds, in any one place, &c. or if the said twenty-eight pounds should not be kept in the manner directed, that such person should forfeit all the gunpowder so kept contrary to the ordinance, and should also forfeit the sum of 125 dollars for every hundred weight of gunpowder, and in that proportion for a greater or less quantity, to be recovered, with costs of suit, in any court having cognizance thereof.

That after -passing the act and ordinance aforesaid, to wit, on the 2d of June, 1813, the defendant did keep a greater quantity of gunpowder than twenty-eight pounds, to wit, the quantity of 200 pounds, at one time, &c. in one .place, &c. whereby an action has accrued, Sec. to' demand and have from the defendant the sum of 250 dollars, &c.

The second count was grounded on the by-law or ordinance of the corporation only, made in pursuance of the authority vested in them by their charters, and by a law of the 2d March, 1812, Sec. and a breach of the ordinance by the defendant, in keeping 1,100 pounds of gunpowder, at one. time, in one place, by which an action accrued to the plaintiffs, to demand and have of the defendant the sum of 1,375 dollars, parcel of the 3,000 dollars above demanded.

The third count, like the first, was grounded on the act of the legislature of the 'Id April, 1806, granting certain additional powers and rights to the corporation of New-York, and the by-law or ordinance of the corporation in pursuance thereof, as above mentioned, and stating a breach of the ordinance by the defendant, in keeping 1,100 pounds of gunpowder at one time, in one place, &c. contrary, &c. by which an action had accrued to the plaintiffs, to demand and have of the defendant, other 1,375 dollars, See.

To this declaration the defendant demurred, and the plaintiffs joined in the demurrer, and the same was submitted to the court without argument. '

delivered the opinion of the court. In deciding on this demurrer, the court confines itself to the manner of executing the power conferred by the statute, and,to

p. 124

the consideration of thé general' powers of the. corporation, under their charters. We do not, at present, intend to express any opinion,whether, únder the act,of 1806, the,corporation cotq¿¡ impose apenalty beyond the forfeiture of the powder; for-admitting that they could both.forfeit the powder; and impose a pecuniary penalty, wé are of opinion that the .power conferred by' the act has not been well or properly executed,

• The’.act, in.-authorizing the. imposition of penalties for the non-observance of by-laws to be passed; and iü restraining the penalty tó 250 dollars;' clearly manifested, án intention,1 on the part of the law-makers, that no more than that sum should be exacted as a penalty for any one- offence, 'or for the violation of the by-láws in any one transaction.. -,

■ Shoúld a different, construction prevail, the limitation in the amount of the penalty would .be .nugatory, arid a penalty to the amount of . 250 dollars might be repeated, not upon the offence .itself, but upon the quantity of the -offence. ' The by-law imposes a penalty of 125 dollars fo¥- every hundred -weight of gunpowder kept contrary to its. provisions, and this very case, is an illustration’of the excess of the power granted ; for. in -the third count,'j,3f5 dollars are claimedfor one. single offence,'and eleven forfeitures are insisted any-where: there has been-but one of-fence.'- Thebe is'no’limit to the principle'set up-4n the by-law.. .With the same propriety, the.penalty of 125 dollars might -have ".been imposed oil every pound of,gunpowder, or even- oti every grain, kept contrary to. the.,by-law. -. -

The ease of Crups v.Durden, (Cowp. 640.) is'not unlike the pretensions Set upby the.plaintiffs he.re-: Crups was coiivicted ,in four convictions for-exercising the trade of a baker on the Lord’s day, yánd-for selling hot loaves contrary to the statute, Lord Mansjiéld said, on the construction of the act of parliament, “-.the offence is, exercising his ordinary trade’on the Lord day, and that with-put any fractions of the day, hours, or minutes; it is but on,e entire offence,.whether longer or shorter in point of duration, or whether it '.consist 'of one or a. number of particular acts.;, that there, was no idea conve'yed by,lire act, that if a taylor sews on the Lord’s day,.every stitch he' takes is a separate offence; and (he adds)' there can be but oné entire offence on one and the same day; killing a single hare is an.:offence, but, the killing ten more thé same day will not multiply; the’offence, or the . penalty imposed for killing one.” (

p. 125

In the present case, it is impossible to believe that the legislature meant to confer a power at variance with, and subversive of, the very limitation coupled with the power granted. The offence of keeping gunpowder contrary to such by-laws as the safety of the city of New-York might require, was the mischief intended to be prevented ; and the legislature considered a penalty, not exceeding 250 dollars, a sufficient mulct to remedy that mischief. The by-law is a plain and manifest excess of power, in inflicting a penalty, and in applying it, not to the offence itself, but to the. quantity of the offence, and thus transcending the limitation of the penalty by the legislature.

Though the act of 1806 contains no recitals, stating that it was passed on the application of the corporation of New-York, yet we must presume that it was so passed, it being almost the invariable course of proceeding, for the legislature not to interfere in the internal concerns of a corporation, without its consent, signified under its common seal. If it be conceded, that the by-laws in question were authorized by the general powers conferred by the charters, upon which we express no opinion, the application by the corporation to the legislature, and the latter having, in several instances, legislated on the subject matter of the by-law, operates as a limitation to any general and undefined powers in the charters. For this reason we are of opinion that the second count cannot be supported, if it jests solely on the charters; and if it is intended to be grounded on the act of 1806, the reasoning - already applied to the other counts extends to that.

Judgment for the defendant.