
    The People vs. The President, Directors and Company of the New-York Gas Light Company.
    When the legislature has authorized a corporation to manufacture gas, to be used for lighting streets and buildings in a city, and required that the act giving such authority shall be favorably construed, in all courts, for the purposes expressed therein; and the company has; in pursuance of such authority, proceeded to erect gas-works, and to make and distribute gas therefrom, it is not liable to indictment for creating a nuisance, by unwholesome smells, smokes and stenches, rendering the air corrupt, offensive, uncomfortable and unwholesome, in conducting its business; where it is conceded that the buildings and processes of the company are of the best, and that it has used due care and diligence, in the business.
    Although it may be that private persons can maintain an action for damages, yet the people are barred, by the act which the legislature has passed, from making a public complaint, by indictment, for such a cause, while the corporation conducts its business with skill, science and care.
    The power of the legislature is omnipotent, within constitutional limits.
    And the good of the greatest number, is regarded by the legislature as its justification for the extraordinary use of its power.
    CERTIORARI to the Court of General Sessions of New York, to remove an indictment and conviction for a nuisance, upon exceptions taken at the trial.
    “The New-York Gas Light Company” was incorporated by an act of the legislature, passed March 26, 1823. The preamble of the act is, “ Samuel Leggett and others, associated to form a gas light establishment in the city of New York, for the purpose of better lighting the said city, the buildings, &c., have prayed to be incorporated, the better to enable them to carry on the business of their association.” .The company was, among other things, duly empowered “to manufacture, make and sell gas, to be made of coal, oil, tar, peat, pitch or turpentine, or other materials, and to be used for the purpose of lighting the said city, or the streets thereof, and any buildings, manufactories or houses therein contained and situated.” The company was forbidden to dig the streets without the previous consent of the city authorities, and it was provided that the “ act should be benignly and favorably construed for the purposes therein expressed and declared.” The defendants erected a large establishment, in which they manufacture illuminating gas, at the junction of First avenue and Twenty-first street, in the city of Hew York, a resolution by the common council of the city having been previously passed authorizing the defendants to so use that locality. - All that portion of Hew York which is south of Grand street is supplied with gas through pipes from the defendants’ works.
    The indictment charges that the defendants, at the ward, city and county aforesaid, and near the dwelling houses of divers inhabitants of the city and county of Hew York; and, also, near divers public streets, and common highways, in the said city and county of Hew York, unlawfully and injuriously “made divers large fires of coal and other offensive materials and substances to the jurors unknown,” “in, on, upon and around” certain “furnaces, tubes and cylinders, by reason of which said premises, divers noisome, offensive and unwholesome smokes, smells and stenches,” “were from thence emitted and issued, so that the air, then and there, was, and yet is, greatly filled and impregnated with the said smokes, smells and stenches, and was and is rendered and become, and was and is corrupted, offensive, uncomfortable and unwholesome, to the great damage and common nuisance,” &c.
    The defendant pleaded not guilty.
    On the trial, evidence was given, on the part of the . prosecution, by several witnesses, residing in the neighborhood, which established that the defendants’ gas-works emitted gas and smoke in such quantity and of such quality as to corrupt the atmosphere with sickening and noxious odors, which at frequent intervals destroy the comfort and injure the health of all persons who dwell or pass within a space of many blocks in extent around the gas-works. Various exceptions were taken, on the trial.
    It was conceded, by the counsel for the people, that the company had erected the best buildings they could, used the best processes and employed careful servants, and used due care and diligence in the management thereof.
    The jury found a verdict of “guilty.”
    Vo motion for a new trial on the evidence was made, and it was insisted that the verdict was conclusive as to the facts.
    
      Francis Lynde Stetson, for the defendant.
    I. The court erred in refusing to instruct the jury as requested by the counsel for the defence, that if the damage complained of was slight, uncertain and rare, they were to find the defendant not guilty. (Rex v. Tindal, 6 Ad. & Ell. 143.)
    II. The court erred in refusing to charge the fifth and sixth propositions, and, in qualifying the fourth proposition, submitted by the counsel for the defence. The court also erred in refusing to qualify its charge, as requested by the counsel for the defence. 1. As proved and admitted the defendants were, by the supreme legislative authority of the State, expressly authorized to manufacture, make and sell gas, to be used for lighting the city of Vew York, or the streets thereof, and the buildings therein situated, and with a view to the accomplishment of this end, the municipal authorities of Yew York subsequently permitted them to place their works upon their present site. 3. The incorporating act, by its own terms, provides that it shall be “benignly and favorably construed for the purposes therein expressed and declared, in ah courts and places whatsoever,” the legislature reserving to itself the liberty to alter, modify or repeal the act. '3. In granting this right, the legislature also conceded to the defendants, authority to do and perform all tilings necessary, usual and incidental to the acceptance and enjoyment of the privilege bestowed. This proposition depends upon fundamental principles, and seems beyond the need of argument. “ Ouicunque, aliquis quid concedit, concederé nidetur et id, sine quo res ipsa esse non potuit.” (Broom’s Leg. Max. 356, 6th ed.) 4. It was proved and admitted, that the defendants have erected the best buildings they could, used the best processes, have careful servants, and have used due care and diligence in the management of their whole establishment. It was also proved, that there is not known to science or art any process of manufacturing gas, more nearly perfect, or, in its effect upon the health of the neighborhood, less objectionable than that pursued by the defendants; and further, that the defendants have adopted and now follow the course marked out and approved by the municipal board of health. 5. These facts being established, it must follow, that any and all obnoxious odors or smells, if any, produced, emitted or issued in the manufacturing process of the defendants, are, in the present state of science and art, inevitably attendant upon the manufacture of illuminating gasand, unless the defendants forego the enjoyment of their right to manufacturé, such odors must, as an incidental, though disagreeable necessity, be evolved, until a remedy is devised; a task to which human ingenuity has not yet proved equal. 6. As a corollary to this last deduction of fact (subdivision 5) and the proposition of law, (subdivision 3,) that a grant of the' right to do a particular thing, carries also the right to do whatever is necessary and usual to the enjoyment of the principal grant, it is justly claimed that, by their act of incorporation, the defendants are authorized to produce even such smokes and smells, if (as has been shown) these are necessarily emitted in the manufacture of illuminating gas. At the trial, this proposition was met by two objections which, it is supposed, led the court to doubt the applicability to the facts developed, of the admittedly good law of the cases cited by the counsel for the defence. These objections were as follows: (a.) Unlike the cases of the dams, canal or railroad hereinafter cited, no specific act or structure is authorized by the legislature, but the defendants, being empowered simply to manufacture and sell a product, are left free to choose the mode of production, and consequently, are liable to prosecution, if the process which they, themselves, select and pursue, shall result to the public injury. (5.) Though the legislature has authorized the defendants to supply gas to the city of New York, it has not directly provided that the source of supply may be situated within the city. Both these objections lose much, if not all, of their force, upon a moment’s consideration of the tenth section of the incorporating act, which provides, “that this act shall be deemed a public act, and shall be benignly and favorably construed, for the purposes therein expressed and declared, in all courts and places whatsoever.” Since, however, these propositions seemed to have considerable influence at the trial, it seems proper to answer them specifically. To the first objection.it may be replied, that the legislature cannot be presumed to have contemplated any impracticable mode df manufacture, when it authorized the defendants to manufacture gas, nor to have linked to the grant, conditions which could not be performed. (Lex non cogit ad invpossibilia.) It cannot be doubted that the defendants, in the acceptance of this grant, were bound to proceed with their manufacturing and distributing processes in the most careful, scientific and skillful manner, at the time, known and approved, and also, from time to time, to adopt, in process and material every demonstrated improvement, for the prevention and diminution of annoyance to the public; and, the burden of proof was, and ever is, on the defendants to show an absolute conformity to these conditions. But if, in pursuing this course, the defendants should, incidentally, occasion a public annoyance, this would be an evil, as yet, beyond the remedial power of human ingenuity. In permitting it, the defendants would evidently be the involuntary subjects of natural laws which, for the time, they cannot escape; which, to them, are as authoritative guides as would have been detailed, and technical directions in their charter; and which all law makers must be held to recognize as defining and limiting their own enactments. That the defendants should comply with them, is inevitable; such a compliance must have been within the legislative contemplation, and affords no occasion for a public prosecution; not even, though the natural law asserts its supremacy, in a mode, somewhat to the public discomfort. Otherwise, the legislature must be held to have done an idle thing in the passage of this act. If the charter calls upon the grantees, in accepting it, to exercise more than human capacity, the grant is worthless to human incorporators. Let this charter be interpreted in accordance with its own provisions, and with the general rule, ut res magis naleat quam pereat; let the defendants be held to the strictest exercise of all possible care and diligence in the enjoyment of their right, but in simple justice, let them be acquitted of responsibility for the production of results, which, so long as the right is enjoyed, they cannot, even by the aids.of science and art, escape or modify. It has been clearly shown and admitted that the defendants have brought themselves within the narrowest limits of this rule. As to the second objection it is proper to say: 1. The defendants have the license of the common council for the present situation of their works. 3. It would not be feasible to supply gas to the city of blew York by works removed from the island. 3. We must presume that the legislature, in granting this right to manufacture, did so, with full knowledge of the existing mode of managing gas-works, which were invariably placed in the midst of the city or town using the gas. 4. A removal of their works would not secure to the defendants the right, or an opportunity of using the right, which was undoubtedly given them, of manufacturing gas somewhere. The law nowhere fixes the number of complainants necessary to establish the fact that a nuisance exists. In the present case the verdict was found upon the testimony of only four witnesses, and where is the spot near enough to a city to be the suitable reservoir of its light, in which four citizens may not reside to complain of odors necessarily escaping % Until the law recognizes degrees in the annoyance resulting from a nuisance, a change of place, unless to a spot absolutely uninhabited, can protect no enterprise thus proscribed. 5. Though- the smokes and smells emitted and issuing, as claimed, from the defendants’ works may have resulted in what would ordinarily be a common nuisance, this is no ground for a judgment against the defendants. They are justified by the legislative act in the strict, careful and usual enjoyment of the right, which it conferred, and the authority of the legislature is a shield for those acting under it, sufficient even to protect against a judicial prosecution on the charge of nuisance. This proposition has been enounced and contested in the courts of almost every State and country, where the common law prevails, but the correctness of the following position can now hardly be questioned: That cannot be judicially declared a common nuisance which is authorized by supreme legislative authority. In Davis v. The Mayor, (14 N. Y. 506-525,) a street railroad was under discussion, and Judge Denio said of it: “If authorized by law to run upon the street, the inconvenience would have to be submitted to; but, if placed there without right, the authors of the act could not defend themselves from a charge of nuisance.” In The Commonwealth v. Reed, (34 Penn. 275,) the defendants’ canal, as productive of noisome and unwholesome exhalations, was indicted as a nuisance. The defendants pleaded that the canal was originally constructed by the State; that they had subsequently been incorporated by the legislature, and had been authorized to maintain and manage the canal, which the State surrendered to them; and that, therefore, they were secure against prosecution. To this plea the district attorney demurred ; the court overruled the demurrer, and the case was carried to the Supreme Court, which affirmed the judgment of the court below. In delivering the only opinion, Judge Reed says: “It would indeed be strange that any legal proceedings could be instituted * * * upon the singular allegation that what has been constructed under the express authority of the legislature is a great public nuisance.” A case very similar in principle was that of Harris v. Thompson, (9 Barb. 350.) The defendants there, had torn down a dam maintained by the plaintiffs, across the Hudson River, and the plaintiffs brought an action on the case, for damages sustained. The defendants set up, in justification, the plea, that the dam was a public nuisance, productive of malarial odors. Upon the trial, it appeared that the State had erected the greater portion of the dam, in connection with the canal system, and that its usefulness terminating, the legislature, in 1830, enacted, that if the private parties interested in its continuance, would pay a specified sum into the State treasury, the dam might remain; but that otherwise, it should be removed by the canal commissioners. The grantors of the plaintiffs paid the sum, and the dam remained. Subsequently, they and the plaintiffs extended and repaired the dam. The court held, that to the extent the dam was maintained by the State, or by its authority, it could not be a nuisance, but so far as it was repaired or maintained by the plaintiffs for their own private use or benefit, these additions, provided the dam would have been a nuisance if not built by the State, were unauthorized and might be a nuisance, thus sharply drawing the line between the private work, which was held a nuisance, and that authorized by the legislature, which was held to be protected. Under the charge, the jury found for the plaintiffs, and the judgment was affirmed at General Term, Judge Hand delivering the opinion. He says: (p. 364,) “The principle that it could not be-a nuisance in the condition in which the State allowed it to remain, seems unquestionable. It is a legal solecism to call that a public nuisance, which is maintained by public authority. Even an act of a corporation, which would otherwise have been a nuisance, has been deemed lawful because authorized by its charter.” Again, he says: (p. 336,) “And a prosecution by the people, for doing what the people have enacted shall be done, would be an absurdity.” A case strongly favoring the defendants’ position, is that of Stoughton v. The State, (5 Wis. 291,) where a dam was indicted as a nuisance. The defendant pleaded that the dam was constructed and maintained under an act of the legislature, authorizing its erection, and upon proof of this fact, asked the court to direct a verdict in his favor. This request was refused, and judgment being entered against the defendant, the cause was carried, upon assignment of error, to the Supreme Court. Here the judgment of the lower court was reversed, Judge Whiton delivering the opinion of the court. He says: “We think the instruction (as to a verdict for the defendant based upon the protective force of the act) should have been given. * * * The question is whether, when the legislature, having competent authority so to do, authorizes a citizen to an act, the State can prosecute the citizen criminally, for doing the act thus authorized. * * We must hold that the legislature had in view all the consequences which were to follow from doing the act which they authorized, and that the State cannot now punish an act as a crime, which it has said, in plain words, might be committed.” A case directly in point is that of Rex v. Pease, (4 Barn. & Adol. 30.) The defendants’ railway, which, for a mile of its course, ran immediately adjacent to the highway, was indicted as a nuisance. The defendants pleaded a special act of incorporation, giving them a right to use engines, and to run within a hundred yards of the highway; they also showed that their locomotives were originally of the best construction ; that they had used due care and diligence in the management of them ; and that they had, from time to time, adopted such improvements as were discovered in the erection or management of locomotive engines worked by steam. A special verdict, setting forth these facts, and also the undisputed fact, that public annoyance was occasioned, having been found, the court gave judgment for the defendants, Parke, J., delivering the opinion. “The question is, whether that section (of the incorporating act) gives an authority to the company to use locomotives on the railway absolutely, or only with some implied condition or qualification that they should employ all practicable means to protect the public against any injury from them. How, the words of the clause in question clearly give to the company the unqualified right to use the engines; and we are to construe provisions in acts of parliament according to the ordinary sense of the words, unless such construction would lead to some unreasonable result, or be inconsistent with, or contrary to the declared or implied intention of the framer of the law, in which case the grammatical sense of the words may be extended or modified.” * * * “It is true that the same object, that of giving one part of the public the benefit of the use of these engines, might have been effected without the same injury to the other part using the road, if the act had imposed on the company, the obligation of erecting a sufficient fence or screen at their own cost; or had provided that the line of the road should be different at that place; but' it is by no means necessary to imply such an obligation in order to make the clause reasonable and consistent, for it has been shown to be so without it; and is natural to suppose that if such a condition had been intended it would have been particularly expressed.” * * * “For these reasons we think that the defendants were justified under the above mentioned section of the 4 Gf. 4, and therefore that the judgment of the court should be affirmed.” This authority goes beyond the requirements of the present case, in which it is shown that the defendants have not only employed all practicable means to protect the public, but have been alert to adopt and carry out the suggestions of the sanitary authorities. See also First Baptist Church v. The Utica and Sch. R. R. Co., (6 Barb. 313,) which holds, “ That which is authorized by an act of the legislature cannot be a nuisance.” In the case of The People v. Law, (34 id. 494, 514,) Judge Hogeboom says: “The railroad in question, thus sanctioned by the highest authority in the State, cannot be a public nuisance; nor can it be a private nuisance. It has the stamp of legislative approbation.” See also Williams v. N. Y. Central R. R. Co., (18 id. 222, 247.) Hinchman v. Paterson Horse R. R. Co., (2 C. E. Green, 75.) 8. The protective power of the statute, as hereinbefore asserted, cannot be successfully assailed by the application of any rule of natural equity, so called. Hot even the claim that the defendants, in the enjoyment of their franchise, unfavorably affect the public health, can call into exercise, an a priori law, which, it is assumed, shall rise superior to the legislative will and avoid its expression. This idea of a “higher law,” founded upon any supposed principles of natural equity, has never obtained favor in the courts of this country or State, and the legislature is esteemed competent to enact any law, or to grant any franchise, not in conflict with constitutional provisions. (Potter’s Dwarris on Stat. 76, 81. McCullough v. State of Maryland, 4 Wheat. 316. Cochran v. Van Surlay, 20 Wend. 365, 382.) In Harris v. Thompson, (9 Barb. 359,) the defendants “requested the judge to instruct the jury that the legislature cannot erect or authorize the erection of a nuisance, detrimental to the public health, and destructive of the public safety; that if the jury could find that the dam produced disease and death, then it was not maintained by authority of law.” The judge refused so to charge, the defendants excepted, and upon an appeal by the defendants, the exception was not sustained. In the case now occupying the attention of the court, it is not, however, necessary to invoke this principle of American law, for nowhere does it appear, that the defendants have been producing injury to the health of the people. A nuisance is anything which renders the enjoyment of life or property uncomfortable; it may be either, through slight annoyance to the senses, Or, on the other hand, through substantial injury to the health. In the present case the verdict was simply “guilty” fixing upon the defendants the charge of nuisance. The grounds upon which this verdict was based, and which afford the clue to its meaning, are set forth in the return, and clearly sustain the allegation that the odors from the defendants’ works are not injurious to health, but simply offensive to the smell. It thus becomes unnecessary for the court to consider further the question of natural justice as affecting positive law, for here is no case of substantial injury, but simply one of annoyance. As against this inconvenience, the court should take into consideration the immense and positive benefit, which the defendants render to the community, which, to some extent, entitles them to the consideration shown to a great public work; and further the court should regard the fact that the evil is continually becoming less.
    III. It is submitted to the consideration of the court. whether or not the judge, at the trial, erred in refusing to instruct the jury in accordance with the seventh proposition submitted by the counsel for the defence; which was as foEows: “Seventh. That if the commodity furnished by the defendant is a pubEc necessity, and it is not probable that this commodity could be suppEed with less pubEc inconvenience than the defendant occasions, even independently of the statute, the defendant is protected in its manufacturing and distributing process ; and if the jury believe this to be the fact, the verdict must be, not guüty.” The earEest reported case bearing on this point, is Ranlcetts case, reported in 2 Rollé s Abridgment, 139, title Nuisance, and also in Viner's Abridgment, title Nuisance, A. It arose in the third year of James I. and holds, “If a man make candles in a viE, by which he causes a noisome scent to the inhabitants, yet this is not any nuisance; for the need-fulness of them wiE dispense with the noisomeness of the smeE.” Hawlcins cites this same case in his Pleas of the Crown, (p. 199, §§ 10, 75,) and says that “the reasonableness of this opinion seems justly to be questionable, because whatever necessity there may be that candles may be made, it cannot be pretended necessary to make them in a town.” If this be good law, Hawkins’ objection loses its force, wherever, as in the present case, it is shown that it is necessary to cany on the obnoxious manufacture or trade within, the town. Even a more advanced position was taken in Rex v. Russell, (6 Barn & Cress. 566,) which stood for a number of years, but was at length overruled by the decision in Rex v. Ward, (4 Ad. & Ell. 384.) In approving the case last cited, Judge Denio, in Davis v. The Mayor, 14 N. Y. 525, says: “It may be, on the whole, sucha change in the character of the street would be a pubEc benefit, but this is for the legislature to determine.” If, then, the seventh proposition be not good law, the decision of the question as to benefit, is under the last decision thrown back upon the legislature, which has, in this case, passed upon the whole matter.
    IV. The court erred in refusing to direct the jury, that, upon the whole case, they must find for the defendants. Under the propositions of law theretofore submitted, together with the concessions as to the facts, made by the district attorney, there was nothing left for the jury to pass upon, and the court should have directed a verdict.
    V. The Supreme Court should sustain the exceptions raised by the defendants upon the trial, and should direct that the verdict against the defendants be set aside, and the defendants be absolutely discharged.
    
      Algernon S. Sullivan, (assistant district attorney,) for the people,
    I. The court properly submitted to the jury to find whether the odors complained of emanated from the buildings of the defendant; whether these odors were disagreeable; whether they were an annoyance calculated to interrupt the public in the reasonable enjoyment of life or property, by creating an unwholesome smell. These were the only material questions in the case. They fall within the exclusive province of the jury; and, as submitted, they embodied a plain and correct definition to the jury of that which constitutes an indictable nuisance,
    II. A grant by the legislature of privilege to a company to manufacture and sell illuminating gas, even though some substance be specified which may be used in the manufacture, does not secure immunity to the company in producing noxious smells and smoke, injurious to life, health, or comfort of the community. 1. The legislature does not specify any mode of producing the gas. Leaving that optional was equivalent to saying, “Act on your responsibility in view of the law against nuisance.” 2. A State, acting as the sovereignty of the whole people, may direct or authorize any specific act, although that act shall be prejudicial to the public. It will not be a nuisance, because the ‘ public, ’ ’ one and all, consented to it and created it. Ho individual of that “public” can properly separate himself, and complain that the injury is ad commune nocumentum. 3. An act of incorporation never gives to the corporators any rights or privileges .beyond the common privileges of every individual, unless the grant be explicit, special and positive. The object of incorporation is merely to create the artificial person. 4. If an individual in Hew York city, manufacturing gas, (and there are many private factories for that purpose,) should poison the surrounding atmosphere, as did the defendants herein, it would be a nuisance, unquestionably. 5. The cases cited by the defendants herein all sustain the above views.
   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 offensive 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.  