the basin in the instance now under consideration, is in violation of the law which directed its construction, is not warranted by their rights as lessees of pier lots, or as navigators of the Hudson river, and is without color of lawful authority.

But have the respondents the power to redress the evil or punish the appellants for their usurpation? This is the most important question in the case, and demands our consideration, not merely because the appellants seem to have rested their claim less upon the strength of their own right than upon the weakness of the respondents' power, but also because our decision may materially affect those chartered rights which have been conferred upon the city of Albany and other corporations of a similar character, for the advancement of the public good. In support of the power exercised by the respondents in the case before us, we have been referred, first, to their act of incorporation and the powers therein specifically granted; and second, to their right at common law as a corporation to abate and remove all nuisances within their jurisdiction. The original charter of the city of Albany, granted by the royal government in July, 1686, and under which, and the several acts amending it, its municipal authority was exercised until 1813, extended the bounds of the city into the river no farther than low-water mark. In 1813 a new charter was granted, 2 R. L. 461, and in 1826 the charter was renewed by the legislature, and the various laws relating to the city were combined into one act: Laws of 1826, sess. 49, c. 185, p. 184. By these statutes, the bounds of the city were extended to the middle of the river: 2 R. L. of 1813, 462; 3 R. S. 6, sec. 16, 17; Id. 123, sec. 2; and thus included within its limits the place where the float of the appellants was stationed.

This fact being undisputed, the respondents claim that the fifteenth section of the act of 1826, gives them power to direct its removal and destruction.

1. Because they are authorized to establish and regulate docks, wharves, or whatever may be necessary in and about the same. By the original charter of 1686, sec. 4, the unappropriated land lying within the limits of the city, and extending to low-water mark, and all the profits, benefits, and advantages that might arise from anchorage or wharfage in the harbor, port, or wharf of the city, were granted to the respondents. By the act of 1823, relative to the construction of the basin, the erection of wharves on the outer side of the pier was evidently contemplated; for the proprietors of the pier are empowered to

charge wharfage on all vessels lying in the Hudson river at the said pier or mole on the east side thereof, and forbidden to charge wharfage on canal boats lying on the west side. It is evident, then, that at the passage of the law of 1826, it was known that there were wharves and docks on both sides of the basin, and we are not at liberty to say that that act related to those only on one side. All docks and wharves in the city were included within the provisions of the fifteenth section, to which I have already adverted, and the power of the respondents was as great in regard to one as the other. That power was to regulate not only the wharf, the perpendicular bank for lading vessels, but the dock, the place in which the vessels entered also, and all things necessary in and about the same. The act of 1823 provided that the basin should be so kept open that canal boats, etc., might enter from the canal, use the waters or docks of the basin, and lie alongside the bridges or wharves of the pier without charge; and if the float of the appellants in any manner interfered with or obstructed this free use of such docks and wharves, it was highly necessary and proper that the respondents should so exercise their power of regulating as to prevent such interference and remove such obstruction.

2. Because the respondents are authorized to abate or remove any nuisances in any street or wharf, or on the lot or inclosure of any person. I will not now stop to inquire whether the float of the appellants is a nuisance or not; if it was conceded to be such, it would not give to the respondents jurisdiction under this clause of their charter. The basin, or water in which this float rests, does not come within the description of places mentioned here, and a nuisance within its borders can not, I apprehend, be removed under this part of their charter.

3. Because they are authorized to make rules, by-laws, and regulations for the good order and government of the city, and the commerce and trade thereof. It has already appeared that the object of the legislature in authorizing the construction of the basin was, that it might be extremely beneficial to the trade of the city. The mere construction of the basin was not of itself sufficient to effect that object; it was necessary that a proper use of it should be produced and continued, and the power to protect such a use of it must rest somewhere. It was not deposited with the canal commissioners, for their duty in regard to the basin is special in its character, clearly defined, and does not include the requisite authority in this respect.

Nor was it given to the proprietors of the pier; their rights and interests are also clearly marked out and exclude this power; and it is manifest to me that it was intended by the legislature that it should be deposited with the respondents. They were the representatives and the servants of that people, for the benefit of whose trade the basin was to be constructed; they had in 1823 the same power to make rules for the good order and government of the trade and commerce of the city, which existed when they passed the ordinance in question. The legislature had extended their limits so as to include the land covered by the waters of the basin, and confirmed their jurisdiction over the trade for the advancement of which it had been constructed. I am therefore of opinion that it was the right and the duty of the repondents to guard against such a use of the basin as should be injurious to the trade and commerce of the city, and that two several parts of their charter required their interference with the erection of the appellants.

But how was their power in the premises to be enforced? Their charter gave them the right to impose fines and inflict imprisonment upon violators of their regulations. This, it is averred, was not sufficient in this instance to enforce an observance of those regulations, and the respondents contend that they had a right to resort to such means as were necessary to render their corporate powers effectual. I can not acknowledge the justice of this claim; it is fraught with great danger to the citizen, and is at war with the spirit of all our institutions; if allowed in this instance, it will be impossible to fix any limits to its usurpations. The common council of 1831 might be content with believing that a destruction of a part only of a transgressor's property would be sufficient to produce obedience to their laws. Their successors may, however, think that an amerciament of all his property would alone be adequate to that purpose, while others may persuade themselves that perpetual imprisonment and the loss of life itself could alone produce the desired result. Life, liberty, and property are not thus to be hazarded at the will of a tribunal which was intended to be local in its jurisdiction and limited in its authority. It is the constant tendency of power to increase its strength, and it becomes courts of justice to guard against its encroachments, however specious the pretext, or however strong the necessity for its exercise. The current of authorities is also against this claim. The only cases cited by the counsel for the r spondents in support of their position were Pierce v. Hop

the

per, 1 Stra. 249, and 14 Petersd. Abr., N. Y. ed. 515. The former is merely the language of counsel, and no authority; the latter is a note by the editor that "where an act of parliament enacts any matter or thing, it tacitly gives the right of carrying it into effect by all legal means; and therefore, though the words used are not express as to all matters necessary for the purpose, court will so construe the statute that its object will be attained.” Even if this language was sufficient to sustain the position of the counsel (which I will not allow), its tenor and extent will be best ascertained by a reference to the cases cited by the editor in support of his doctrine. The first case is Regina v. Simpson, 10 Mod. 248, which was a conviction before a magistrate for deer-stealing upon the statute 3 and 4 Wm. and Mary, c. 10. No way of proceeding by the magistrate was provided by the act, and Parker, C. J., ruled that it was more agreeable to the common law that the delinquent should be summoned than arrested on a warrant. The other case is Rex v. Steventon and others, 2 East, 362, where the question was stated by Grose, J., who delivered the opinion of the court, to be whether the statute, 26 Geo. III., c. 77, sec. 13, extends to proceedings before the commissioners of excise and justices of the peace; not whether they fall within the legal definition of a court, but whether the legislature in this clause meant to comprehend them. To show that they were not meant to be comprehended, it was said by him to be a circumstance of some weight, that in no act which was produced by the defendant were they so described; and upon looking through the several acts, it was clear they were intended not to be comprehended.

These cases do not, it is apparent, warrant the construction which the respondents' counsel have put upon the language in Petersdorff, and do not sustain the position they have assumed. On the other hand there are many cases which clearly establish the contrary. In the case of Kirk v. Nowill, 1 T. R. 118, the defendants justified under a by-law of a corporation which was authorized by its charter to ordain certain by-laws, and to impose such reasonable pains, punishments, and penalties by fine and amerciament, or by either of them, upon all those which they should find offending contrary to those laws, as to them should seem meet, and the same fines and amerciaments to levy and receive to the use of the said corporation. The act for which the defendants were prosecuted was the seizure of some property manufactured contrary to such by-law, and which seizure was authorized by the by-law. Lord Mansfield

said that such a corporation, with a power of making by-laws, can not make any such law to incur a forfeiture. No such extraordinary power of making by-laws to incur a forfeiture appearing upon the plea, it was impossible for the court to say that this by-law could be supported by the act; and Buller, J., is still more explicit. His language is that the act prescribed in what terms by-laws should be enforced, namely, by fine and amerciament; therefore the corporation was precluded by the act from inflicting any other punishment. In the case of The Mayor etc. of New York v. Ordrenan, 12 Johns. 122, the question arose upon the validity of a by-law which imposed a penalty of one hundred and twenty-five dollars for every hundred-weight of gunpowder that should be kept contrary to its provisions. The charter of New York empowered its common council to pass ordinances for regulating the keeping, carting, conveying, or transporting of gunpowder, and to impose penalties for the non-observance of the same, not exceeding two hundred and fifty dollars, etc. The supreme court declared the ordinance void, because the charter had clearly manifested an intention that no more than that sum should be exacted as a penalty for any one offense, or for the violation of the bylaws in any one transaction; and Spencer, J., remarks that should a different construction prevail, the limitation in amount of the penalty would be nugatory, and the by-law was a plain and manifest excess of power in inflicting a penalty and applying it, not to the offense itself, but to the quantity of the offense, thus transcending the limitation of the penalty fixed by the legislature. The cases of Dunham and Daniels v. Trustees of Rochester, 5 Cow. 462; and Stuyvesant v. Mayor etc. of New York, 7 Id. 588, are to the same point; in the latter of which cases the court say that 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 can not transcend the powers conferred on them by statute; this is their constitution; every act beyond the constitution is void, and may be declared so by our courts of justice, whether it emanate from a general or local legislature. Hence, these respondents had no power in their charter to ordain a forfeiture of the float, or to enforce their by-laws by other means than fine and imprisonment. I have arrived, then, at the conclusion that the respondents wero within the scope of their jurisdiction when they legislated in regard to the float of the appellants, but that they exceeded the

AM. DEO, VOL. XXIV-13