People v. President, Directors & Co.

By the Court, Leonard, J. The legislature have authorized the defendants to manufacture gas, to be used for lighting streets and buildings in the city of Hew York, reserving the power to alter, modify or repeal the act. It is also required by the act that it be favorably construed in all courts, for the purposes expressed therein. The defendants’ gas-works were erected in 1849, quite at the Easterly extremity of 31st street, in the said city; and the company have ever since made and distributed gas therefrom, extensively, for the purposes authorized. It is conceded that their buildings and processes are of the best, their servants careful, and that they have used due care and diligence, in the business. The defendants were indicted for creating a nuisance, by unwholesome smells, smokes and stenches, rendering the air corrupt, offensive, uncomfortable and unwholesome. It appears that persons residing near are much disturbed, and sometimes sickened, by the offen [62] sive smell which pervades the air and penetrates their dwellings, in certain ratified conditions of the atmosphere, particularly when an easterly wind prevails, The Court of General Sessions refused to hold that the act of the legislature, and the entire absence of negligence on the part of the defendants, was any defence. [First Department, General Term, at New York, November 4, 1872. Ingraham, Leonard and Gilbert, Justices.] The power of the legislature is omnipotent, within constitutional limits. It is sufficient to authorize railroads to be run through crowded thoroughfares, with locomotives, causing great disturbance to the citizens who reside near them, and exposing their residences and property to constant danger of fire from the sparks emitted from the engines. If unauthorized by statute, these acts would be a nuisance. The same power can authorize dams to be constructed and maintained, for public purposes, although they may render the common air we breathe unwholesome, producing, thereby, disease and death in their vicinity. The good of the greatest number is regarded by the legislature as its / justification for the extraordinary use of its power. If the railroad is carried on with the greatest skill and care, with every improvement and advantage known to science and experience, it is not a nuisance, although many are injured in property and personal security. (Davis v. The Mayor &c. of New York, 14 N. Y. 526. Rex v. Pease, 4 Barn. & Ad. 30. Harris v. Thompson, 9 Barb. 350.) It may be that private persons can maintain an action for damages, as in Carhart v. Auburn Gas Light Co., (22 Barb. 297;) but the people- are barred by the act which the legislature have passed, from making a public complaint, by an indictment, for such a cause, while the defendants conduct their business with skill, science and care. The judgment should be reversed.