
    Stuyvesant against The Same.
    
      Putch oimrch Yard.
    
    In this the pleas were substantially the same as in the 3d cause.
    Judgment for the plaintiffs below, on general demurrer to all the above pleas, and joinder.
    The four causes, involving nearly the same points were argued together.
    
      G. Griffin, for the plaintiffs in error.
    There was no finding, or adjudication in the by-law passed by the defendants in error, that it was necessary to prevent the interment of the dead in the parts of the city to which the bylaw applied: nor is there any averment of necessity in the declaration. This is a fatal defect, both in the by-law and the declaration. The statute, (2 R. L. 445, s. 267,) under which the by-law professes to have been made, is guarded and express. “ If they find it necessary,” the corporation are to pass by-laws to prevent interments. Such necessity is traversable; and not being found in the by-law, should at least, be put forward by the declaration, in such a shape that a jury could pass upon it. The defendants are bound by the statute ; and cannot go back to the charter. (12 John. 122.) By the statute, the corporation, could exercise this power only on condition that it was necessary. They acted under a delegated authority depending on a condition precedent. (Co. Lit. 304, a.) Who are to judge whether the condition has arisen ? Grant that the ’corporation are the judges; and that from their decision there was no appeal: yet, passing the by-law, is not, per re, a finding of the necessity. The by-law is evidence of nothing more than it recites. Finding, means an expression on the record. For aught that appears, this by-law was founded on expediency merely. dSTo presumption is to be indulged in favor of a penal law. Suppose it had depended on some other contingency, as that the population *of the city should amount to 200,000 ; could the corporation pass the law without finding such a contingency expressly ? Gan they pass this law in the same general form as they do their common ordinances ? There is no difference between the manner of executing this, and any other power conferred on an individual. The will of the donor must be followed. This is a naked power, and should be strictly followed. (1 Ves. Sen. 306. 2 id. 79. Sug. on Pow. 278. 1 Atk. 558. 1 Vern. 340. 1 Rep. 173. 3 East, 510. 3 Cas. in Ch. 55. 2 Freem. 193. 2 P. Wms. 506. Cro. Car. 335.) The court cannot see judicially that this by-law was necessary. They cannot see the necessity, unless it appear on the face of the by-law. (2 Gall. 519. Cowp. 26. 3 Yates, 54.) Beside; the jurisdiction of a court must appear upon the declaration. This> corporation are like a court of limited jurisdiction. 3 Yeates, 54.)
    But the by-law, if perfect in form, is unconstitutional. The legislature of this state could not confer the power t<j) pass it. We disclaim any attempt to interfere wftETlEé' decision of this court in The 'Corporation of The Brick Presbyterian Church v. The Corporation of New York, (5 Cowen, 538.) The constitutionality of the by-law was not. questioned in that case; but the point was expressly waived. Both the charter of king William, and the deed, from the corporation, grant the premises in question expressly for the purpose of being used as churchyards for interring the. dead; with the incidental profits. The ancient seisin of the corpDration, pleaded by the defendants, was for the same purpose, attended with the like profits. The defendants acted as sextons, deriving their rights from the corporation; and m some of these cases there is a vested right to family burying grounds shown to have been derived from the corporation. Here are various vested rights, in one case derived directly from the defendants in error, and their exercise sanctioned by their covenant. We need hardly remark that any statute violating the constitution of this state, or of the United States, is void; and may be declared a nullity by any branch of "x'the judiciary who are called upon to enforce it. This rule is now perfectly well settled. (1 Cranch, 137.) Laws impairing the obligation of contracts are declared void by the 10th section of the first article of the federal constitution. (1 R. L. 19.) A grant, is a contract executed within the meaning of the constitution. (6 Cranch, 87, 136, d seq.; 4 Wheat. 518; 9 Cranch, 282.) The charter of king William conferred a franchise, which is a kind of incorporeal hereditament. (4 Wheat. 683, 684, 699, per Story, J.)
    Let it not be said that this by-law is a mere regulation of the right to inter. It is an abolition; an attempted revocation of a charter; a repeal of that charter on the ground of expediency; a repeal of the very contract on the part of the corporation; a repeal of the contracts between the churches and the vault holders. In The Brick Presbyterian Church v. The Corporation of N.Y., (5 Cowen, 538,) the covenants of the defendants were holden to be destroyed by their own by-law; that being yielded to by both parties as valid. Here the constitutional power is questioned.
    We ask again; can these rights be not only divested, but that without compensation ? We are taught the contrary, even where the taking is for public use, not only by the constitution of the United States, (Amendments, Art. 5,1 R. L. 26,) but by our own state constitution. (Const. N. Y. Art. 7. s. 7.) Indeed we are taught the same lesson by the laws of the most despotic governments. The most celebrated writers on general law, all agree, that such a measure is contrary to the fundamental principles of civil society. (Gro. Lib. 3 ch. 20, s, 7; Puf. B. 8, ch. 5. s. 7; Bynk. B.2, ch. 15 ; Vat. B. 1, ch. 20, s. 244.) We concede that the public weal is a paramount consideration; ^ compensation must be allowed. Vattel, in the section Tooted, likens the case to the throwing of merchandize over board, in a storm, to save the vessel. The masterly opinion of Patterson, J., in the case of Home's lessee v. Dorranee, (2 Dali. 304,) shows with what vigilance this right of private property is guarded. The *statute should have embodied a provision for assessing and paying a compensation, either by the state or the corporation. This cannot be doubted, if the present be a case within the constitution. The only doubt which has ever been expressed is, whether an officer acting under such a defective provision is liable. (Rogers v. Bradshaw, 20 John. 744, per Kent, Chancellor.) The same chancellor fully yielded the doctrine for which we contend in Gardner v. The Trustees of Newburgh, (2 John. Ch. Rep. 162.) The right claimed here may be likened to one of fishery, 'or of way.
    The length of time during which the right claimed has been enjoyed, should have a decisive influence upon the question. Can we now, at this late day, be ousted as guilty of a nuisance ? The long aequieseense of the corporation, and of the state, should conclude both. (1 Campb. Rep. 260; 4 id. 16; 3 Serg. & Rawle’s Rep. 509; 6 Com. Dig. Prescription, (E;) Peak. N. P. 91.)
    The legislature cannot take away a single attribute of private property, without remuneration. (2 John. Ch. Rep. 166, 7; 7 Cranch, 164; 16 Mass. Rep. 36; 17 John. 195, 215.)
    To sustain this action, it must be maintained, that whenever the exercise of a private right becomes a nuisance, it may be taken away. We might concede that doctrine with safety; and say interment here has not been pronounced a nuisance. But take the broader, ground; and suppose the contrary. Still, we answer, not even the exercise of a right which becomes a nuisance, will warrant its destruction without indemnity. The public good is paramount. This is exemplified in taking land for roads and canals; but land thus taken must be paid for. is it not the same thing, whether the public good is to be promoted by taking the use of property for public benefit, or destroy-' ing the property for the same purpose ? Does it differ the matter by calling the latter the removal of any evil ? This is still the case of Vattel’s ship in the storm. Suppose a cluster of wooden buildings in the city, the receptacles of poverty and filth; that, in the opinion of physicians, they must be removed, to preserve *the health of the neighborhood. The fact of their being such nuisance would not warrant a removal without compensation. (People v. Platt, 17 John. 195.) The case cited is in point. It was the case of a nuisance. You cannot look into the comparative pressure of exigencies, to determine the question of removal. They all stand on the same ground. We do not insist on this doctrine as to things which were originally nuisances; gaming houses, for instance; but, to preserve private right, it should be rigidly enforced as to every thing which the public has rendered so by its own acts; as by encouragement held out to a dense population. There must be loss. But why should we be the sole loser ? The fault is not on our side. That very public which now interferes with our right, held out to us the assurance of protection; and bound us to the duty of using the places in question as cemeteries. Many ordinances of the corporation may doubtless be cited which are mere regulations of private rights, and which have been acquiesced in as such. Ho doubt a mere act of regulation is binding. This distinction was recognized in Sturges v. Crowninshield., (4 Wheat. 200, et seg., per Marshall, C. J.;) and is a familiar doctrine among writers on public law. Vattel, (B. 1, ch. 20, s. 246,) makes the distinction, that the sovereign may regulate, but not abolish the use of the subject’s goods. The legislature could not, for instance, deny the owner’s right to till his land or convert it to the purposes of building, without just compensation. They cannot forbid the owner’s building on his own land; though they can regulate the height of his house. In the case before the court, they may fix the time of interment, the hour of the day; but here they profess to take away the whole right. Such is the nature of our property, that no other use can be made of these lands. The pleas **■ show that they are held for the sole and only purpose Q£ interments. When these cease, the whole right is gone.
    At any rate, the defendants in error are estopped from claiming a penalty for interring, in that part of the premises in question held under them; and as to which they *have guarantied the right of interment by their express covenant. (Co. Lit. 352, a; Com. Dig. Estoppel; 9 Cranch, 53, per Story, J.) In the case of The Brick Presbyterian Church v. The Corporation of N. Y.; (5 Cowen, 538,) this court held, it is true, that the covenant of the corporation might be annulled by their own law. But the question did not arise as to. the effect of such a covenant upon the penalty imposed by their law, contrary to the terms of the covenant.
    
      M. Ulshoeffer, contra.
    The particular objection as to those premises granted, and said to be protected by the covenant of the corporation, is disposed of by the case of The Brick Presbyterian Church v. The Corporation of N. Y., (5 Cowem 538, 540.) That case settles the doctrine, that though the corporation might grant, they might, in another capacity, as a legislature, repeal their grant and the covenants by which it was fortified. They have the same power, in this respect, as the state legislature. That power also extends, a fortiori, to the grant from king William, and all the rights derived from either of the grants in question. So with regard to the prescriptive rights set up. As to the grant and covenant of the corporation, Fairtitle v. Gilbert, (2 T. R. 169,) was considered decisive by the court. The Gov. & Co., &c. v. Meredith, (4 T. R. 794,) was not adverted to. If it be admitted, as it must be, that the grant from king William gives no greater right than one from an individual, (9 Cranch, 52,) and we contend for nothing more, the answer to the case founded on this, is equally plain.
    It is agreed that we cannot go back to the charter ; but must rely for our power on the statute. (19 John. 248.) That part of the declaration referring to the charter may be stricken out as a surplusage. It will not vitiate the pleading. (1 Chit. Pl. 232, 233, 234.) The statute, (2 R. L. 445, s. 267) on which we rely, is a public act, of which the court will take judicial notice. (2 R. L. 460, s. 315.)
    As to the main ground, therefore, the question we make is, whether the by-law be sustainable under the act of the ^legislature, (2 R. L. 445, s. 267.) We contend that it is. We view it as a mere municipal-regulation, the power of making which will be seen, on looking into the statute, (the whole of which is declared by s. 315, before quoted, a public act,) to be incident to the defendants in error, as a corporation.
    Hence, it was not necessary to show, either in the declaration, or otherwise, that the prohibition of interments was necessary. An averment of this kind would be immaterial : and, if made, we could not be called on to establish it in proof. It could not be put in issue; nor any advantage taken on demurrer of a formal defect in the allegation. (2 East, 452; 3 John. 206.) Suppose the fact to be traversed; what would the jury be called on to decide ? whether the law was legal; or, in other words, whether it was necessary. This could only be decided by the common council ? Had the fact been alleged, it would doubtless have been traversed; but the traverse would have been idle, since the decision of the common council was conclusive.
    The form of this action has not yet been disputed; nor can it be. Debt is the proper action, for the penalty of a by-law. (3 Caines’ Rep. 30; 3 Bl. Com. 154, 158.) It makes no difference, that the action is for a tort. (1 T. R. 462; Cowp. 382.)
    Ho adjudication of necessity was requisite in the by-law itself. (Goszler v. The Corporation of Georgetown, 6 Wheat. 595.) Penal laws passed for beneficial public purposes are to be construed liberally. (13 John. 498; 1 Bl. Com. 88. 7 John. Ch. Rep. 342.) The object of the statute is to be considered. Heither the preamble, (8 Mod. 144,) nor title, (6 Mod. 62,) make part of a law. The law is perfect without either; and they need not even be noticed in pleading. (Bac. Abr. Statute, (L,) pl. 3.) Respublica v. Caldwell, (1 Dall. 150,) is in point, that the expediency of a law cannot be made the subj ect of inquiry before a j ury. The idea of a technical nuisance has never been started in relation 'to these church yards. It was not necessary, to warrant the law, that they should become *actual nuisances. The.provision is cautionary -and preventative. Ho other character is contended for. If there was danger of disease being engendered, the interference of the common council was necessary, within the meaning of the act. The word does not import absolute, physical necessity. It is synonymous with needful or expedient. (7 John. Ch. Rep. 340, per Kent, Chancellor.)
    But whatever may be the meaning of the word necessary in this statute, all dispute is put at rest by the finding of the common council. They were the judges. It is said they have not adjudicated expressly. We answer that such adjudication is to be inferred and intended from the fact of their passing the by-law. Hecessity is conclusively proved by an inferred adjudication. This alone is a full answer to all objection founded on the form of the bylaw: and it rests upon the highest authority. We refer to the late case of Martin v. Mott, (12 Wheat. 19,) and the course of reasoning there taken by the court, as conclusive, upon this view of the case. The cases cited on the other side, to show that a corporation must show a compliance in fact with every thing preliminary to the exercise of their power, go on the ground that they had no right to judge of such facts. They were traversable as constituting the jurisdiction of the body. The authority of these cases is not denied; but we answer by showing our case to be one where the corporation are themselves made the absolute judges, and where they have passed in judgment upon the very point submitted; and we show that fact. Bush and others v. Seabury, (8 John. 418,) was the case of a by-law sustained upon much slighter grounds than those on which the law in question rests. So in Pierce v. Bartrum, (Cowp. 269.) And several by-laws much more objectionable than the present, will be found to have been sustained, by a reference to Com. Dig. By-law, (B. 3.) Here is a specific power. That was thought necessary, though the by-law was equally within the general one of regulation. By Art. I. s. 8, of the constitution of the United States, congress have power to regulate commerce with foreign nations. Under this power, congress *have passed laws limiting ports of entry. Under this power they passed a general embargo, without limitation as to time; which was sustained by the judiciary. (United States v. The Brigantine William, 2 Hall’s Law Journal, 255.) The law in question stands on the ground of a quarantine or health law ; the power to pass which by the state has often been recognized. (9 Wheat. 205; 3 Cowen, 713.) These, and the like powers are very familiar in corporate legislation. (1 Salk. 192; 1 Kid on Corp. 47.) Ho matter how long the use of the thing has existed. When the law comes in and declares that use a nuisance, it ceases to be lawful. If otherwise, most laws on the subject of nuisance would be abortive. They are seldom passed till the evil actually arises. Suppose a house erected for the purpose of an inn or ordinary ; but the commissioners of excise refuse a license. This would be equally unconstitutional. The grants in question gave no greater right to the defendants.
    If the regulation be valid, there can be no claim for compensation. Ho instance has been shown, and none can be found, of a law providing compensation for an injury arising from a mere regulation. In all the cases of compensation cited, the property was either entered upon or taken. Here was no entry; no eviction.
    This law cannot be called an interference with private property, any more than our fire laws. These regulate the height of houses. Commissioners of excise, even in the country, are allowed to judge of the place where a tavern is to be kept. (14 John. 231.) This may interfere seriously with contracts between lessor and lessee. A similar power exists as to lottery offices and groceries, in the city. In these and the like public regulations, no property is taken. The owners are presumed to be compensated for their particular inconvenience, by the benefit arising from the care of a vigilant police. The party enters into his own contract; and must abide the law. The interdiction here .g genera^ ag wep fn regard to the church yards as other gr.ounds. Is it bad as to the former; but good as to the latter ? Non constat, but the vaults are full. *The People v. Platt, so much relied on by the adverse counsel, turned entirely on the question whether the stream was navigable. Had it been so, the right of fishery would have been impliedly reserved by the grant. That, however, was the case of a supposed nuisance by which the public was deprived of a right. It turned out that they had no such right; and therefore it was not a nuisance. Suppose the private dam and pond in that case, had affected the health of the neighborhood; it might have been abated as a public nuisance
    In any view which has been, or can be taken of this law, it cannot be said to impair the obligation of contracts, within the meaning of the constitution of H. States. The argument before used, that here has been no appropriation of property to the public use, is a conclusive answer. The question is, how far the corporation may interfere under •their regulating powers. Ho right is divested; no right of entry is given. The law contents itself with taking away the use of property in a particular manner, as being pernicious to the public health. There are various corporate laws never yet questioned as impairing the obligation of contracts, more extensively controlling the use of private property than the one in question. (The counsel adverted to various instances, and gave references in proof of this proposition.) The power in question is a legislative power; which must on the subject of regulation, be transcendent. The legislature are the judges; and their decision must be conclusive. Even a general law to prevent the growing of grain throughout the state, however despotic, could not be disobeyed as wanting constitutional validity.
    
      P. A. Jay, (same side.)
    After all that has been said, by the opening counsel, we are still left to ask, where are the boundaries within which he would confine the power of the legislature in respect to police regulations ? To maintain his argument, it seems necessary for him to assume, that every vested right in property is illimitable; at least that it can in no way be interfered with, unless compensation *is made; that without this, no law can be passed forbidding the devotion of property to a use which was once lawful. It seems to be supposed, that, especially in the case before the court, inasmuch as the use of the burial grounds was limited to the purpose of interment, and cannot be devoted to any other, no police law can be passed which shall prevent the particular use; because it amounts to a divesting of the whole right.
    It has not been denied, that, if the act of the legislature be valid, the corporation have a derivative power equal to that of the legislature itself; and we have only to inquire what is the power of the latter ? They have a general power. All not expressly excepted, or withholden from them by the constitution, is granted. The right to the exercise of any power by them, will be questioned with great caution, especially when it is seen to have been exercised for a long course of years, and concurred in by the greatest jurists. Hardly a session of the legislature passes, without some law as injurious to private property as the one under discussion.
    Is the corporation disabled to forbid interments, because A. has made the grant of a power to inter ? Take the case of a grant by the same A., of liberty to use a building as a powder house in a populous part of the city. All a man has to do is to make a contract,; and his nuisance is irremovable. A vessel contracts to sail to the West Indies; but a law comes, and makes the voyage unlawful. The owner is ruined. Was it ever heard that he might demand compensation ? Such a doctrine would not merely limit; it would abolish the power of the legislature. When the law declares a contract unlawful, the parties are discharged. The statute is a release. This law is not void within the constitution of the United States. The performance becomes impossible. If the fee simple itself was not exempt from regulation, how can a part carved out of it become so ? The injury of property is incident, or consequential the regulating power; and we see in this statute only the regulating quality: not that of abolition, except in the result- The time, the manner, the extent, *are all matter of regulation; and. may all tend to impair the value of contracts. Interments are not absolutely prohibited by this law; though by the penalty, it operates to limit the number. The law is, beside, confined to but a part of the city.
    The necessity of the law is surely out of question here. The case of Rex v. Croke, (Cowp. 26,) relied on to show that an adjudication is necessary, was on certiorari to the quarter sessions, to remove a judicial proceeding. The court below did not adjudge that the property taken was necessary for a certain purpose; a¡n ingredient in the right of one of the parties. There was error, therefore, on the record. But it was a judicial, not a legislative proceeding. The same answer applies to the quotation from Gablison, 519, which was the case of the Margaretta. A judicial power, in the remission of penalties, was imperfectly exercised by the secretary of „the treasury. He had not stated his premises. In The Commissioners of the District of Southwark v. Neil, (8 Yeates, 34,) the by-law had gone beyond the subject matter. It was authorized by statute as to public property only; but it related to private property. That too was a case on certiorari to a justice who was held improperly to have determined in favor of the by-law.
    The parallel between the power of this corporation and a private power of attorney, is not a just one; but if it were, the present cannot be called a naked power. The officers and people of the corporation, both have an interest in its exercise.
    We have said this is a legislative, not a judicial power. Grant that it is limited. So is the legislative power of congress. They are empowered in certain cases to pass such laws as are necessary. Did it ever occur to counsel, that in pleading a law of the United States, it was essential to aver and try the necessity of the law, or show that the law itself stated the necessity ? Gentlemen mistake the meaning of the word necessary, as used here. It is synonymous with convenient or useful. (5 Wheat. 413. Bynk. b. 2, ch. 14.) At any rate, the want of showing *this necessity cannot be taken advantage of by general demurrer. The corporation are to pass this law when they find it necessary. To find, is to discover something new. Such is evidently the sense in which it is here used. It intimates a legal decision, and is, therefore, used in a technical sense, only when applied to the verdict of a jury.
    Ueither the seisin nor use set up in some of the pleas, can exempt the property from the operation of the by-law. The same things would exempt all the property in the city. Mor can the right depend on the length of time. Title by prescription is no better than title by grant. Suppose this a case of manufactures, dangerous as causing fire, which may be regulated or prevented by various corporations, (vid. for instance, 2 R. L. 468, and 4 L. N. Y. 137, a.) Would the objection of seisin or use be listened to for a moment ? Yet the power exercised here, is obviously the same conferred in those cases. It was never intended by the constitution of the United States, that any two persons might by their own acts, impair the power of the legislature to secure the public safety or health.
    What is meant by the U. States and state constitution, when they speak of taking private property for public use ? The power of the soverign over the property of the subject is reducible to three heads: the power .of regulating, the power of taxing, or the power of transcendental propriety, i e. the power to take the property of the subject for the use of the state. Such is the decision of Pufendorf and Yattel in the chapters to which the opening counsel referred. Pufendorf, (b. 8, ch. 5, s. 3,) mentions a law of Rome forbidding any one to dig ore of any kind in Italy; though that country abounded with ore of all kinds. This was holden good as a regulating law. Yattel, at s. 255 of the chapter quoted on the other side, mentions, as within the same power, the prohibition of planting vines in fields proper for tillage. There is a distinction between a tyrannical law and one which is void. A part of this property is none the more exempt from regulation, because it was transferred from a sovereign, (William 3,) to his sub-The moment it passed into the hands of the *subject, ^ st°°d on the same footing as any other private property. Grotius puts this very case. The same remark applies to the land claimed under the corporation. They could not, by any act of theirs, control even their own legislative power. This does away the idea of estoppel. (6 Wheat. 593. 5 Cowen, 538.)
    If the by-law be valid in part, it is so in toto; for the penalty, as well as in any other respect.
    
      Ulshoeffer
    
    added to the authorities before cited, 1 John. Rep. 88, and 12 Mass. Rep. 443.
    
      T. A. Emmet, in reply.
    It is conceded that this by-law must be rested on the statute. But the statute gives the power restrictively; and it must be exercised so. By the use of affirmatiVe words, the statute implies a negative; if not necessary, the power is not to be exercised. The parties differ in the construction of the statute. The construction put upon it by the plaintiffs in error, makes it good: the construction of the defendantsdn error, makes it void.. The legislature, we say, did not contemplate a case of violating vested rights; and they cannot be violated. In all the various powers conferred by the section upon which this question arises, (and they are numerous,) the statute declares the corporation may exercise them, whenever they shall deem it necessary and proper; thus indicating the words by which they mean to be understood as giving the right to judge and to act upon, expediency. The case of interment is singled out, however; and when the legislature reach it, in its order, they declare that the corporation may regulate it upon the previous grounds of expediency; but they add, “or, if they find it necessary,” they may pass laws preventing the interment, &c. It is manifest they intended to impose a greater restriction in the last case. Some times the word necessary does mean convenience; but in this case, it means something more. The words necessary and proper apply to the laws; the word necessary alone, was intended to apply to the thing itself. The corporation must judge it something more than proper.
    *The power exercised is claimed as a regulating power. It is not so. Such a distinction would avoid the law. If a regulating power, its exercise must be general. This law says, “we will deny interments in 19-20ths of the city,” and then, say gentlemen, because it is limited, it is a mere regulation. The same consequence follows if you leave a foot of the city untouched. The act may mean the solid parts of the city; but in the fair construction of law, it extends to every part. All other regulating and restraining powers do so. Then this by-law is void, because it professes to reach only a part. There is ample room for regulation under this law, without prohibition. Dying of an infectious disease forms a proper subject of regulation. The word means mode, manner, or circumstance. The doctrine in Martin v. Mott, was never intended to apply to inferior jurisdictions. It was a case of the president of the United States, issuing his orders as a military chief. Illustration drawn from him, or from congress, has no application. Although their powers are limited; yet they enjoy a kind of prerogative, that-what they do can never be discussed and questioned between them and the subject. The case cited disclaims being a precedent in matters of inferior dignity, and which are not of a military character.
    The grants in question were not only of a right to inter, but of a revenue arising from the exercise of that right. Fees and perquisites were granted. Now, suppose a by-law had been passed that no fees should be taken; would this be valid ? Such a thing would not be pretended. Tet the same thing is accomplished in the instance before us. Such a thing may be done by a sovereign in the exercise of the eminent domain; but even there, not without compensation. It is said you must pay if you enter upon private property; but need not do so if you annihilate it. Notable distinction! How beneficial to the subject! The law takes from one his fees and emoluments, or his rents and profits, and gives them to another, . , - reason assigned against compensation. He would hardly be satisfied with the tinst compensation.
    *Where the ordinary use is forbidden, of the subject in which the party, has the entire, interest, he, may still, perhaps,. preserve, its value by turning to another object. But the property in question, can be made useful only for the. purpose prohibited.
    . The time during which a business has been conducted is certainly of weight; and, in this case, we contend, conclulive against its being condemned as a nuisance. In Rex Neville, (Peak. N. P. Cas. 91, 93, vide note at the end of that case,) the carrying on of a trade for fifty years, in a particular place, admitted to have been otherwise a nuisance, was holden not to be so, on the ground .that the consent of the inhabitants was implied by their long acquiescence. Here we show a term of 100 years.
   Curia,

It was conceded by the counsel for the defendants in error) that the power of the corporation to pass the. by-law in question, must rest upon the statute of 1813, (2 R. L. 445, § 267,) which, for this purpose, supersedes the original charter of the city. The statute proyided that the defendants in error should have full power and authority to pass such by-laws as they, from time to time, should deem necessary and proper, for filling up and regulating grounds, yards and cellars, for filling up lots adjoining the rivers, for compelling bulk heads to be made, for filling up slips, for cleansing privies and sinks, “ and for regulating, or if they- find it necessary, preventing the interment of the dead within the said city.” By § 274, (2 R. L. 447,) the corporation are authorized to. impose penalties for disobedience of their bylaws, to $250. By § 311, (id. 460,) an action for penalties not before particularly appropriated, among which is the penalty in question, is given to the corporation. And the last section, (id. 460,) declares the statute to be public; and that it shall be liberally expounded and construed, to advance its ends.

The by-law in question was passed in 1823 ; and, (without adjudging or reciting that it was necessary, or that the common council found it so,) enacts that no person shall deposit any dead body in any grave, vault or *tomb, within a certain part of the city, under the penalty of $250. The defendants respectively violated this law, and these suits were for its penalties for which the corporation had judg ment in the court below.

The estoppel set up by Coates in relation to North Trinity church yard, cannot avail him. It depends on’the question, whether the defendants in error are liable on their deed, in covenant. If so liable, they might possibly be estopped,on the ground of preventing circuity of action. To allow them to oust Coates, or those under whom he claims, or do what is equivalent to an ouster by their by-law, they being liable to respond in damages for their act, 'to the value of the injury, both parties being considered as individuals throughout, would be an idle thing. But if here be a covenant for quiet enjoyment, it is repealed. We held in The Brick Presbyterian Church v. The City of New York, (5 Cow. 538,) in relation to this very by-law, that it repealed alL covenants entered into by the corporation incompatible with the by-law: that it was equivalent, in this respect, to an act of the legislature, rendering the enjoyment which was the object of the covenant,unlawful.

Nor can the length of time during which property has been used for a particular purpose, make any difference.[l]

All these demurrers, therefore, turn on two questions: 1. Is the by-law constitutional ? 2. Is it available as declared on ?

It was conceded, on the argument, that the corporation have, in general, power so to order the use of private property in the city, as to prevent its proving pernicious to the citizens generally. A contrary doctrine would strike at the root of all police regulations. (Vanderbilt v. Adams, treasurer of die ospital of the city of N. Y, 7 Cowen, 348.) But a distinction was attempted between the interests in question in these causes, and property owned absolutely by an individual, which, when one use is forbidden, can be turned to account in another way. In this case, it was said the property is confined in the grant to the purposes of interment; and if this particular use be '^prohibited by the law, it works a total destruction of the right, and fails in the character of a mere regulation. Such is undoubtedly the consequence, so long as the by-law continues in force. But we think the reply of the counsel for the corporation conclusive. The absolute ownership must reside somewhere; and it should not be in the power of the owner so to cut up and sub-divide the uses of his property, as to evade the salutary application of police powers. A lot is granted as a place of deposit for gunpowder, or ot|ier purpose, innocent, in itself, at the time; it is devoted to that purpose, till, in the progress of population, it becomes dangerous to the property, the safety, or the lives of hundreds; it cannot be, J that the mere form of the grant, because the parties choose to make it particular, instead of general and absolute, should prevent the use to which it is limited being regarded and treated as a nuisance, when it becomes so in fact. In this way the legislative powers, essential to the comfort and preservation of populous communities, might be frittered away into perfect insignificance. To allow rights thus to be parcelled out, and secured beyond control, would fix a principle by which our cities and villages might be broken up. Uuisances might, and undoubtedly would be multiplied to an intolerable extent. ¡N"or can it make any difference that the right is purchased previous to the passage of the by-law, or before it becomes necessary. These laws are usually enacted with a view to evils already existing. Till the state of things is such as to render the act complained of a nuisance upon actual experiment, no law is passed. Every right, from an absolute ownership in property, down to a mere easement, is purchased and holden subject to the restriction, that it shall be so exercised as not to injure others. Though, at the time, it be remote and inoffensive, the purchaser is bound to know, at his peril, that it may become otherwise by the residence of many people in its vicinity; and that it must yield to by-laws, or other regular remedies, for the suppression of nuisances.

*We are of opinion that this by-law is not void, either as being unconstitutional, or as conflicting with what we acknowledge as a fundamental principle of civilized society, that private property shall not be taken even for public use, without just compensation. ¡No property has, in this instance, been entered upon or taken. ¡None are benefitted by the destruction, or rather the suspension of the rights in question, in any other way than citizens always are, when one of their number is forbidden to continue a nuisance. For the same reason, there is nothing impairing the obligation of contracts, within the sense of the constitution of the United States.

But the words of the statute giving the power to pass the by-law, are conditional: if the corporation find it necessary. It is neither averred in the declaration that they did find it necessary; nor is any adjudication of necessity recited in the by-law, nor does the declaration aver that in truth it was necessary. For all, or some of these omissions, it is contended' that the by-law, as pleaded, must be adjudged void.

To be a corporation is a franchise ; and all our aggregate corporations enjoy the prerogatives of government to a prescribed extent. Among these is the power to pass by-laws upon certain subjects. They cannot transcend the powers conferred on them by statute. This is their constitution. ¡Neither can the state or general governments transcend the powers conferred by their constitutions. Every act beyond the constitution is void; and may be declared so by our courts of justice, whether it emenate from a general or local legislature. An unwarrantable interference with private property is equally unconstitutional and void, whether by the state legislature or a corporation. By neither can it be touched without necessity; and then, if taken, it must' be upon .just compensation. This necessity is not absolute. It is nearly synonymous with expediency, or what is necessary for the public good. The word necessary, when applied "to a law, or taking private property, is constantly understood and acted upon in this sense; or as contra-distinguished from Unnecessary or inexpedient. The statute, then, by the words of the power in question, “if they find it necessary,” says no more than Avhat is implied by every charter of ineórporation, as directory to its members: “ You shall not pass by-laws which are unnecessary.” But be this as it may; some exigency should, in the nature of things, always exist, and in legal presumption does exist, to warrant the passage of a positive law. Yet, we believe, an adjudication or recital of such exigency in the law itself, was never deemed requisite to its validity, whether it was one of absolute necessity or mere expediency. A recital is sometimes deemed proper and useful in the construction of a law; but not-essential to its constitutional existence. It is perhaps too narrow a "view of the subject, to liken this law to the execution of private powers, as was done by the counsel for the plaintiff in error. But even there, a recital or adjudication by the attorney or trustee in the deed by which the power is executed, has often been holden unnecessary, provided the power is in fact followed. It is of the nature of legislative bodies, to judge of the exigency upon which their laws are founded; and when they speak, their judgment is implied in the law itself. It is sufficient, therefore, to set it forth in pleading. This is equivalent to an averment that the exigency has arisen, been adjudicated and acted upon. All to be shown beyond this, is matter by which the court may see that the law operates upon the subject of the power. The implied adjudication is then taken as conclusive. If not so, the exigency itself would be the subject of traverse and trial by jury. To say that it must be averred in pleading, would be to require that the propriety or expediency of every law should be tried as matter in pais. Such a consequence was never contended for in relation to the acts of the lowest judicial magistrate in community.

We think a late decision of the supreme court of the United States, virtually overrules all the formal grounds taken against this law as pleaded. A statute of the United States authorized the president, whenever the country should be invaded, or in imminent danger of invasion, *to call forth the militia. A simple requisition of the president, averred to be in pursuance of that law, was set forth in an avowry, which neither averred the exigency of invasion or danger to have arisen. The requisition recited nothing of it, nor did the avowry aver an adjudication. On demurrer, the requisition, as pleaded, was holden full and sufficient in form. It was also holden that the president was constituted by the act, the exclusive judge of the exigency 5 that the requisition was not only conclusive evidence that he had passed as a judge upon the case; but that a plea of such requisition implied, and was equivalent to an express averment of adjudication. {Martin v. Mott, 12 Wheat. 19.) If such strong judicial intendment prevails in favor of a single officer executing a law, a fortiori should it be exercised in favor of the law making power itself.

This declaration conforms in every respect to the rule laid down by Kyd, in his treatise on the law of corporations. (2 Kyd on Corp. 167.) “In an action of debt for the penalty of a by-law, the time when it was made, the parties by whom it was made, their authority to make it, the by-law itself, and the breach of it by the defendant, must be set forth; that the court may judge'both whether the by-law be good, and whether the defendant be a proper ojaject of the action. (Vid. Hut. 5; Hob. 211; 1 Str. 539; Brownl. & Gouldsb. 177.)’

Judgment affirmed.

Sutherland, J., not having heard the argument, gave no opinion. 
      
       When a municipal corporation acts in a legislative capacity, it is irresponsible ; and the courts cannot interfere with its police regulations, ordained ibr observance by its citizens. But courts can enforce the obligation which -ests upon owners of land, whether corporations or individuals, as to use their property that the proprietors of lands adjacent shall be left secure and uninjured in the enjoyment thereof; therefore neither may maintain a nuisance on their own land. Brower v. The Mayor, &c. of New York, 3 Barb. 253.
      Where the board of health of the city of Albany adjudged certain premises to be a nuisance, and an ordinance of the corporation was thereupon passed directing its abatement, and an action of trespass was subsequently brought against the corporation for the act of an agent in carrying the ordinance into effect; it was held, that the plaintiff in such action was not at liberty to show that the nuisance did not in fact exist at the time of the adjudication; and also that it was not competent to him to show any irregularity or noncompliance on the part of the board of health, with the requirements of the statutes in such’cases. Van Wormer v. The Mayor of Albany, 15 Wen. 262.
      A party carrying on a lawful business in such manner as to be a nuisance to his neighbors, must answer in damages for the discomfort and annoyance; and he who erects a nuisance on his own land, is liable for the original wrong ; and fbr its continuance, after lie have demised the land ; and also where the original erection was made by him on the land of another, on which he has no right to enter in order to abate it; or, if he let property to be used for a purpose which he had reason to believe may prove a nuisance; but no damages can be recovered beyond the amount laid in the declaration. Fish v. Dodge, 4 Denio, 311. N. Y. Dig. vol. 3, p. 640, tit. Nuisance.
      
     
      
       The continuance of a nuisance, created by the overflowing of lands by means of a mill-dam for twenty years and upward, although it confers a right to the use of the land flowed, is no defence to a proceeding on the part of the public to abate it, or to an action by an individual for special peculiar injury sustained by him in consequence of it. Mills v. Hall, 9 Wen. 315. N. Y. Dig. vol. 3, p. 642.
     