right that this police sanitary power should exist somewhere, though large and discretionary powers are conferred by the legislature. If the civil authorities were obliged to wait the slow progress of the prosecution, the evil arising from nuisances, and from pestilential diseases, would present an alarming condition of things. a Our statutes abound with laws of this character. The constitution of the state, is to be resorted to, not to see what powers are conferred upon the legislature, but what have been withheld by the people. The legislature can provide such agencies for the administration of the law, and the maintenance of public order, and especially in regard to the police, and of security to the life and the health of its citizens, as it shall judge suitable, where no prohibition, expressly made, or necessarily implied, is found in the constitution. b As the police and sanitary powers were possessed by municipal corporations at common law, it is believed, that without any legislation conferring the authority, they could regulate by proper ordinances and by-laws, the manner of carrying on any trade or business within the municipality so far as to prevent monopolies; the sale of unfit commodities; and insure proper conduct of those who practice it; prevent slaughter houses and the slaughtering of animals, tallow chandlers, and the like, within the walls, or certain limits of a city.c

Puffendorf informs us that this law of necessity is an exception to all human ordinances and constitutions, and that therefore it gives a right of doing many things otherwise forbidden. d Perhaps from this idea, originated the common expression, "that necessity knows no law." Be this as it may, it is certain, that even this law of necessity, is still subject to the law of reason, and subject to control. If in the exercise of this power, it should be so carelessly and negligently exercised, as to produce an injury, there can be no doubt, the persons exercising it would be held responsible, by that old and well established maxim of the common law, that a person using his own natural rights, is subjected to such a restricted exercise of them as not thereby to occasion injury to another. The exercise of this right of overrulling necessity is

a Van Wormer v. The Mayor of Albany, 15 Wend. 264.

b People v. Draper, 15 N. Y. 533.

• Willcock on Municipal Corporations, 141.

d B. 2, ch. 6.

also called the exercise of a natural right which belongs to every individual, not conferred by law, but tacitly excepted from human codes,a and is governed by the same rules and maxims of common law, but when duly and discreetly exercised for the relief, protection or safety of the many, no liability attaches to those who exercise it.

It may therefore be regarded as a settled principle, growing out of the nature of an organized society that every holder of property, however absolute and unqualified may be his title, holds it under the implied liability that his use of it shall not be injurious to the equal enjoyment of others having an equal right to the enjoyment of their property; nor injurious to the rights of the community. And as has been said, when treating of the right of eminent domain, all property of the state is derived, directly or indirectly, from the government, and held subject to those general regulations which are necessary to the common good and general welfare. Rights of property, like all other social and conventional rights, are subject to such reasonable limitations in their enjoyment, as shall prevent them from being injurious, and to such reasonable restraints and regulations established by law, as the legislature, under the governing and controlling power vested in them by the constitution, may think necessary and expedient.

All legislative power being vested in the legislature, except such as is therein prohibited, they possess, under that authority, all power to make, ordain and establish all manner of wholesome and reasonable laws, statutes and ordinances, either with penalties or without, not repugnant to the constitution as they shall judge to be for the good and welfare of the state, and of the citizens thereof. b

It may now be regarded as the law of this state, settled by its highest court, that there are cases, notwithstanding this constitutional protection, in which the property or rights of individuals may be justly sacrificed to the necessities of others, where neither the state, as a whole, nor the public, in a general sense of that term, may have any interest in such a sacrifice. This may be seen in the cases of imminent peril referred to, when the right of

a Russel v. Mayor, of N. Y., 2 Denio 474; Mayor of N. Y. v. Lord, 17 Wend. 297. b Commonwealth v. Alger, 7 Cush. 53.

self defence, or the protection of life or property, authorizes the sacrifice of other and less valuable property. Among the instances, given by the court, by way of illustration, are the throwing overboard goods in a storm, and the pulling down of houses to prevent the spreading of a conflagration. a

This, says the court, is a natural right, arising from inevitable, and pressing necessity; when of two immediate evils, one must be chosen, the less, is voluntarily inflicted, in order to avoid the greater. Under such circumstances, the general and natural law of all civilized nations, recognized and ratified by the express decisions of our common law, authorizes the destruction of property by any citizen, without his being subject to any right of recovery against him by the owner. The agent in such destruction, whether in protection of his own rights, or those of others which may be accidentally under his safeguard, acts from good motives and for a justifiable end; so that against him, the sufferer has no rightful claim. But the loser may have an equitable right of compensation against those who have benefited by his loss in the preservation of their property. In Marine losses of this nature the common law has been able to establish a just rule of compensation and assessment; and the same principle, so far as it is possible to apply it, would be equally equitable in similar losses by land.

But as to most of these cases, from the impossibility or extreme difficulty of ascertaining the parties benefited, or protected from loss, and of settling the average proportions of the loss between them, by any general rule, the sufferer is commonly left without legal remedy. Thus, those who, whether magistrates or private citizens, under the pressure of inevitable danger, and to prevent a greater calamity, find themselves compelled to destroy the effects of others, are not, and ought not to be adjudged trespassers, although they do not act for the state or for the public, but merely for the service of some few of their neighbors, or fellow citizens, and have thus inflicted involuntary injury upon some, to prevent a much greater calamity falling upon others. b This injustice however to individuals whose property is so destroyed, can be corrected, as it should be, by proper legislation.

a Stone v. Mayor, of N. Y. 25 Wend., 174.

b Id. 175; The Saltpetre case, 12 Coke 13.

We have no general statute in this state, regulating the exercise of this power, and but a local law for the city of New York. a This statute it was held, was a mere regulation of the common law right of any person to destroy property in the case of immediate and overwhelming necessity to prevent the ravages of fire or pesti"Statutes of this description merely appoint a municipal agent, to judge of the emergency, and direct the performance of acts which any individual might do at his peril, without any statute at all." It will be more convenient in this chapter to call this power, the police power.

ence.

It was well said, in our highest court, c that "the police power, is of necessity, despotic in its character, commensurate with the sovereignty of the state; and individual rights of property beyond the express constitutional limits, must yield to its exercise. And in emergencies, it may be exercised to the destruction of property, without compensation to the owner, and even without the formality of an investigation. It is upon this principle that health and quarantine laws are established; that a building is blown up to arrest a conflagration in a populous town; that a public market is purged of infectious articles; that merchandize on ship board infested with pestilence, is cast into the deep, and public nuisances are abated. It is the public exigency, which demands the summary destruction, upon the maxim, that the safety of society is the paramount law. It is the application of the personal right or principle of self preservation to the body politic."

It was held in our Court of Chancery, d in 1835, and has never since been questioned, that the legislature are the sole judges as to the expediency of making police regulations interfering with the natural rights of our citizens, which regulations are not prohibited by the constitution.

We have been examining this question simply as a question of power. It is no purpose of this work to discuss the justice or equity of a constitutional or a statute provision. It might even be defended in most instances, upon the ground that it was not even

a 2 R. L. of 1813, p. 368.

b Per. Comstock J. in Wymhamer v. the People, 13 N. Y. 402.

c Id. 451.

d Varick v. Smith, 5 Paige, 160.

unjust to the individual. Take the case of a spreading couflagration. If the necessity is shown to be such, that the property itself would otherwise have been destroyed, the proprietor suffers no injustice by its police destruction, and the security of the many is promoted. As a question of power, it must be regarded in this state, to be settled, and founded upon principles which are above and beyond the reach of constitutional restriction. It is the plain and simple principle of preservation of life and property in cases of iminent hazard, by the sacrifice of that which is less valuable, and which, from the very exigency of the case, must be left to the decision and determination of the moment.

Blackstone defines this power of public police or economy, "as the due regulation and domestic order of the kingdom, whereby individuals of the state, like members of a well regulated and well governed family, are bound to conform their general behavior to the rules of propriety, good neighborhood, and good manners; and to be decent, industrious and inoffensive in their respective stations." a "This police power of the state," says Ch. J. Redfield, b extends to the protection of the lives, limbs, health, comfort, and quiet of all persons, and the protection of all property within the state. It must of course be within the range of legislative action, to define the mode and manner in which, every one may so use his own, as not to injure others. And it has been held that even the corporation of the city of New York, possessed a police power so to order the use of private property in the city, as to prevent its proving pernicious to the citizens generally." c "A contrary doctrine, would strike at the root of all police regulations. Every right, from an absolute ownership in property, down to a mere easement, is purchased and held 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, and that it must yield to laws and regulations and remedies for the suppression of nuisances." Corporations, enjoy the prerogatives of government to a prescribed extent. Among these, is the power to pass bylaws, regulating the police power.

a 4 Black. Com. 162.

b Thorpe v. R. & B. R. R. Co., 27 Vt. R. 149. c Stuyvesant v. Mayor of New York, 7 Cow. 604; Hart v. Mayor of Albany, Wend. 593.

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