59 N.Y.S. 821 | N.Y. Sup. Ct. | 1899
The plaintiff is an association, organized under the general laws of the state, and this action is brought to recover a penalty of $25 for an allegéd violation of the rules and regulations of the association.
By section 47 of the law governing cemetery associations (Laws of 1895, Chap. 559), it is provided that “ The directors of a cemetery corporation 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; * * * for regulating the introduction and care of plants, trees and shrubs within. such
Pursuant to this provision, the plaintiff, on the 11th day of May, 1898, adopted the following rule and regulation:
“ Section 9. The superintendent of the grounds shall have the sole care and superintendence of the grading, and of the care of all lots, including all work done thereon, subject to the direction of the committee on superintendence; and no work whatever shall be performed in the cemetery, or on any lot therein, except by the superintendent of the grounds, or with his consent and under his superintendence.
“ This section shall not, however, prevent any lotowner from doing any proper work upon his own lot, himself, under the control and subject to the approval of the superintendent of the grounds.
“ Any person or persons refusing to conform to this regulation may be excluded from the cemetery grounds, and any person violating this regulation shall forfeit a penalty in the sum of $25, to be recovered as provided by law.”
The defendant was employed by several lotowners, some of them widows, having relatives buried upon their lots, to mow the grass and remove weeds from the lots; and in pursuance of this employment, and under the direction of the lotowners, he did cut grass and remove weeds from the burial plats.
It is for these acts that this action is brought, and for the purpose of recovering the penalty for violation of the rule of the association above set forth.
We are confronted at the outset of this case by the question as to the power of the legislature to delegate its authority to the extent and in the manner provided by this statute. It is not my purpose to exhaustively discuss the question of the delegation of legislative power, but to simply call attention to some of the features of this case, presentation of which will disclose to the legal mind the reasons for the conclusions which I have drawn. The central government-may delegate to municipal and other public corporations some portions of its own powers for local purposes. It may clothe a municipal assembly with power to enact ordinances, and to fix
The act in question permits the association to declare an act illegal, and to impose a penalty or fine therefor. It is, in fact it permits a declaration that a person violating its rules or regulations is guilty of a crime and punishable by a fine. It may as well say that any person going upon the grounds of the plaintiff without a certain form of .license shall be punished by a fine. In this instance it is undertaken to show that by entering upon the premises, not of the association, but of the lotowner, a person is subject to the penalty, and any person violating the rule shall be excluded from the grounds. It may go to the extent of excluding a lotowner, who has been guilty of permitting some person to perform labor upon his lot, from going within the cemetery. If it is within the power of the legislature to delegate this authority to a cemetery association, it may delegate it to any private corporation. It may permit a railroad company to make a regulation that a person shall not enter its depots or grounds without certain permission, and a violation of the rule renders them subject to a penalty to be fixed by the corporation. That it is fixed in this instance at $25, which may be considered a small sum, cannot affect the power of the legislature, for if a fine of $25 can be imposed in this way, a fine of any other amount may be fixed. So that it comes to this: If
But assuming that such was a valid piece of legislation, it must be construed with reference to the other provisions of the statutes and* the surrounding circumstances. They have authority to make only reasonable regulations. The owners of the several lots in question have deeds which grant to them the entire estate in the premises, subject to the rules and regulations annexed to the deeds, which are as follows:
“ 1. The proprietor of each lot shall have the right to inclose the same under the advice and direction of the trustees.
“ 2. Proprietors shall not allow interments to be made on their lots for remuneration.
“ 3. No disinterments shall be allowed without the permission of the trustees.
“ 4. The proprietor of each lot may erect any proper monument, gravestone or sepulchral structure thereon, and cultivate trees, shrubs and plants; but no trees growing on the lot or border shall be cut down or destroyed without the consent of the trustees.
“ 5. If any tree, monument, effigy, inclosure, or structure whatever, or any inscription, shall be determined by the trustees to be offensive and improper, or injurious to the surrounding grounds, the trustees may cause the offensive or improper object or inscription to be removed.
“ 6. The trustees may, from time to time, lay out or alter the avenues or walks, and make such rules and regulations for the government of the grounds as they may deem proper.”
It will be seen that this deed reserves the right to each proprietor to cultivate trees, shrubs and plants upon the premises. Now the right to cultivate plants, and growing grass must be considered as a plant, and is embraced within the défínition of a plant, is reserved to each proprietor; and in order to cultivate and care for it, it is
I have, I think, sufficiently indicated the trend of the argument upon the questions here in my mind, and it leads to these conclusions:
First. That no right is reserved to pass a regulation as to the enjoyment of the lot in question.
Second. Assuming that a right to limit the enjoyment of the lot is conferred by the restrictions in the deed, the attempt to exercise, in this instance, is not a reasonable exercise, and the regulation is not a reasonable one.
Third. That it was not within the power of the legislature to delegate to a cemetery association the right to declare that a person is guilty of a crime, and impose a fine therefor.
I have not discussed the question as to how far persons who voluntarily enter into an association may be bound by rules and regulations, for that question does not enter here. In this case there is no attempt to bind defendant as a lotowner, but he is admitted to be fined for an act committed not as a lotowner, but as an outside member of the community. It is quite apparent to what extent the reasons above stated would apply even.to a lot-owner. The complaint must be dismissed, with costs.
Complaint dismissed, with costs.