Johnstown Cemetery Ass'n v. Parker

45 A.D. 55, 60 N.Y.S. 1015

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 15, 1899
• Status: Published

Opinion

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. .