control and subject to the approval of the superintendent of the grounds. Any person or persons violating this regulation shall forfeit a penalty in the sum of §25, to be recovered as provided by law. It then alleges that the defendant, without right or authority, did and. performed work upon, and assumed the care of, one of the lots in said cemetery grounds, known as the “Gardiner Lot,” without the consent or approval of the superintendent of said grounds, and contrary to his expressed directions, and in direct violation of the said rule and regulation^ whereby he became and is indebted to it in the sum of §25, being the penalty incurred by him for the violation of such rule and regulation and of the statute. It also sets forth two other similar alleged violations, and demands judgment against the defendant for the sum of §75. Section 47, c. 559, Laws 1895, provides that the directors of cemetery associations may make reasonable rules and regulations for the use, care, management, and protection of the property of the corporation, and of all lots, plats, or parts thereof, in its cemetery; and that directors “may prescribe penalties to be paid by a person violating any such rule or regulation, not exceeding twenty-five dollars for each violation, which shall be recoverable by the association in a civil action.” Upon the trial it appeared that the defendant, who is not a member of such association, or a lot owner thereof, did the work, as alleged, for three separate lot owners, upon their employment, without authority of the superintendent, and contrary to his expressed directions. At the close of the testimony the defendant moved for a dismissal of the complaint upon the ground that the facts proved were insufficient to constitute a cause of action, which motion was granted. Prom the judgment entered upon the order dismissing the complaint, the plaintiff appeals to this court.
Argued before PARKER, P. J., and LARDON, HERRICK, MERWIN, and PUTNAM, JJ.John M. Carroll & Son (Fred L. Carroll, of counsel), for appellant.
Andrew J. Nellis, for respondent.
The passage of a rule and regulation and the imposition of a penalty for its violation is an act of legislative power. The legislative power of the state is vested in the' legislature, and “one of the settled maxims in constitutional law is that the power conferred upon the legislature to make laws cannot be delegated by that body to any other body or authority.” Cooley, Const. Lim. 116. There is an apparent exception made to this in the case of municipal corporations, or corporations vested with any of the political power of the state, and exercising governmental functions as one of the agencies of the state. This comes from the immemorial power of legislative bodies to grant charters to municipal corporations and bodies of like character exercising governmental functions in a particular locality, and as a necessary incident to the power to grant such charters, and in furtherance of the purpose for which they are granted, to grant to the corporation or body so chartered the power to pass by-laws for local purposes, which have the force and effect of statutes in the locality and over the people subject to such corporation or governing body; and as a proper, if not necessary, means of enforcing such by-laws, to prescribe punishment for their violation. And when the people, by the constitution, conferred their legislative power upon the legislature, they conferred all such accustomed powers of legislation with it. Tanner v. Trustees, 5 Hill, 121 . But a .cemetery association in no sense exercises any political or governmental functions. It is a domestic corporation, carried on and conducted for the benefit of its members and the individual