*500 By the Court,
Savage, Ch. J.The first question arising in this case is, whether the bond on which this suit is brought is valid 1 The condition of the bond is, that the defendant shall indemnify and save harmless the mayor, aldermen and commonalty of the city of New-York, from all expenses and charges which may be incurred for the maintenance and support of certain persons imported by him, and, among them, Sarah Green. This bond was taken under the authority conferred by the 252d section of the law relating to the city of New-York.
It is contended, by the counsel for the defendant, that the statute in this particular is inoperative, as being repugnant to the constitution of the United States; and it is supposed that the principles established in the case of Gibbons v. Ogden, (9 Wheaton, 1,) determine this point. If I understand that case correctly, it decides that commerce, as well foreign as among the states, is subject to the control of congress; and that any laws of the states, repugnant to those of the United States, are void, being unauthorized by the constitution of the United States; but that the laws of the states, which do not imply an exercise of the power to regulate commerce, are valid. Some of these acts, it is conceded, may have an important bearing upon commerce generally. Such are the laws relating to the inspection of articles of produce intended for exportation; laws respecting the preservation of health ; quarantine laws ; and laws regulating pilotage of vessels. All these subjects, as well as those which concern the internal policy of the state, are admitted to be within the jurisdiction of state legislation. The right of excluding paupers, and compelling those who bring foreigners among us to indemnify the state against their support, concerns the police of the state, and is one which does not belong to congress by any express power, nor is it incidental to any express power. It is not perceived how it is contained in the power to regulate commerce; nor does it interfere with commercial transactions, any .more than quarantine and inspection laws. The bond is therefore valid.
The only remaining question in the cause is, whether an order of a justice was necessary. There are many cases *501in our own reports, where such order is held to be necessary, and such is the language of the statute; but it will be found, that the cases in which such order is necessary, are eases involving the responsibility of the overseers of the poor.
There is also one case, at least, in which such order is decided to be unnecessary, and that is the case of an indemnity bond—a case in which it was shewn, that the expenses were incurred necessarily by the overseers; and this court held, (1 Johns. R. 491,) that such expenditures were as obligatory on the defendant without as with an order from a justice. From what has been adjudged, it seems to me the distinction is this: You cannot compel the overseers to afford relief without an order} but if they do it in a proper case, without such order, and have a bond of indemnity, they are equally entitled to the remedy upon the bond, whether they had a previous order or not. But where the overseers improperly paid money, and endeavored to enforce indemnification from the county, an order of two justices was held to be necessary. (4 Cowen, 137.) But this case seems to be distinguishable from most others. The alms-house establishment in the city of New-York is a county concern. No questions can arise between the wards, or between ward and county. The commissioners perform the duties of both overseers and justices, and there seems to be no use in one commissioner making an order upon himself to provide for a pauper. The idea of weekly or other allowance, short of absolute support* is not applicable to such a case. The pauper is taken to the alms-house, where every provision is made. The object of orders is, to enable the towns and counties to settle the accounts correctly with the overseers; that those who have the disbursement of the public money may not embezzle or improperly use it; but no check of that kind can be used in the alms-house, where the city provides all necessaries by their superintendant, who is under the control of the commissioners, and whose expenditures are all regulated by them.
The fact of the pauper’s being received in such a case by one of the commissioners, seems to be equivalent to a justice’s order in a case where such order is proper. In both ca~ *502ses, it is the act of the officer, who is to judge of the necessity of making provision for the pauper.
As to the measure of damages: the rule adopted by estimating the whole expenses of the establishment, and making an average upon its inmates, cannot be correct. The question should be, what was it reasonably worth to support the pauper 1 But as it appears that the recovery is much less than what was shewn to be the value of the pauper’s support» deducting her services, I see no necessity for a new trial.