Mayor of New-York v. Ordrenan

Spencer, J. 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 [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.” ( [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.