
    The Johnstown Cemetery Association, Appellant, v. William Parker, Respondent.
    
      Cemetery association —- a penalty prescribed by it for a' violation of its rules is not enforcible against a person not a member.
    
    "Section 47 of chapter 559 of the Laws of 1895, authorizing a cemetery association to make reasonable rules and regulations for the use, care, management and protection of its property, and to “ 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 corporation in a civil action,’ ■does not .entitle a domestic cemetery association to recover from a person, not • a member of the association nor the owner of a lot in its cemetery, who, by doing work therein under the direction of certain lot owners, violates a rule of the association adopted pursuant to the statute, the penalty imposed by the-rule for its violation.
    
      iiemble, that a rule so- adopted is binding upon those who voluntarily become members of the association.
    Appeal by the plaintiff, The Johnstown Cemetery Association, from a judgment of the Supreme Court in favor of the defendant, •entered in the office of the clerk of the county of Pulton bn the 23d day of June, 1899, upon the dismissal of the complaint by •direction of the court after a trial before the court without a jury at the Pulton Trial Term, upon the ground that the facts proved were in sufficient to constitute a cause of action, with notice of an intention to bring up for review upon such appeal an order entered in said clerk’s office on the 23d day of June, 1899, upon which said judgment was entered.
    The complaint alleges that the plaintiff is a domestic corporation, duly organized in October, 1849, under' the laws of the State 'of New York, as a cemetery association ; that in May, 1898, pursuant to section 47 of article 3 of chapter 559 of the Laws of 1895, it -adopted' rules and regulations, amongst others one known as section 9, which provides that the superintendent of the grounds shall have the sole care and superintendence of the grading and of the care of the lots, including all work done thereon, and that no work whatever shall be performed in the cemetery, or upon any lot, except'by the: < superintendent of the grounds or with his consent and under Ms superintendence. It provides, further, that such section shall hot prevent any lot owner from doing any proper work upon liis own lot himself, under the. 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 twenty-five dollars,, to be recovered as provided by law.
    . It then alleges that the defendant, without right or authority, did1 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 twenty-five dollars, being the penalty incurred by him fertile 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 seventy-five dollars.
    Section 47 of chapter 559 of the Laws of 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 and 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 corporation 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 ownérs, 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 insuffieient to constitute a cause of action, which motion was granted.
    From the judgment entered upon the order dismissing the complaint the plaintiff appeals to this court.
    
      Fred. Linus Carroll, for the appellant.
    
      Andrew J. Nellis, for the respondent.
   Herrick, J.:

The passage of a rule and regulation, and the imposition of a pen^ alty 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 department 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 immemoiial 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 of the Village of Albion, 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 lot owners. The benefit that the public derives from the burial of the dead is only incidental. (Matter of Deansville Cemetery Assn., 66 N. Y. 569.)

And while undoubtedly the association has the right to make rules and regulations that are binding upon those who voluntarily become members of it, such rules and regulations have not, as to-third persons, the force of statutes.

Undoubtedly they may pass rules and regulations excluding persons not lot owners from coming upon their grounds, and treat them as trespassers, and may recover whatever damage may be adjudged to have been occasioned by such trespass, but they cannot, by by-laws or regulations, fix an arbitrary sum as the measure of such damage by a fine or a penalty..

The defendant was not a member of. the. association, and was not bound by its rules and regulations any further than they served to exclude him from the grounds for such violation.

The plaintiff has its common-law remedy against him as a. trespasser, but the imposition of a penalty is without authority of law.

For these reasons the judgment should be affirmed.

All concurred.

Judgment affirmed, with costs. .  