concurred.
*261Randolph, J. In December, 1835, occurred in the city of New York, one of the most extensive fires ever known in this country, and property, both real and personal, to the value of many millions of dollars was destroyed, much the larger portion being consumed by the flames, but a very considerable part, in the efforts made by the Mayor and other officers, to prevent the spread of the conflagration, by pulling down, or blowing up with gunpowder such buildings as were deemed hazardous and likely to take fire, and be the medium of spreading the devouring element. The statute of New York, which authorized the Mayor to act in the emergency, also authorized “ any person interested in such building so pulled down or destroyed, to make application to the proper tribunal, and have an assessment in full satisfaction of all demands, of such persons respectively, by reason of the pulling down or destroying such buildings,” which assessment, together with the expenses of the proceedings, the corporation are required to pay. Various controversies have arisen in the courts of New York, under this statute, and growing out of the destruction of property at the time of the fire, the result of which seems to be that the corporation are liable for the buildings destroyed, and for the amount of property therein belonging to the owner or other person having an interest in the building, but for goods or other properly not belonging to persons “ interested in such building,” the corporation is not liable, unless it may be to the amount of the lien of the owner or lessee of the building. See the Mayor of New York v. Lard, 17 Wend. 285; C. C. in Error, 18 Wend. 126. The Mayor, &c. of New York v. Stone & al. 20 Wend. 138; S. C. in Error, 25 Wend. 157, and also the proceedings in the various courts of the state, of the subsequent case of Lawrence & al. v. The Mayor, &c. of New York. In the latter case, the court decide more particularly, that the power vested by the Legislature in the Mayor and Aldermen of New York to destroy property in order to prevent the spread of a conflagration, was beyond and above that of the corporation, that they were not their agents, and so the corporation, were not liable for their acts in the premises, or for the destruction of property by them be*262yond the liabilities imposed by the statute, which did not embrace the goods or property of persons not interested in, or occupying the building destroyed.
All efforts to recover against the corporation, by the owners of goods destroyed having failed, the present suits are brought against the defendant individually, and process having been served on him in this state, we are obliged to take cognizance of the matter, though more appropriately belonging to the tribunals of another State. The demurrer to the defendant’s plea of justification as Mayor, acting under the authority of the statutes of New York, puts in issue the whole matter. The 81st section of the statute of New York, respecting the city of New York, directs, “ that when any buildings in the city of New York shall be on fire, it shall be lawful for the Mayor, or in his absence the Eecorder of the city, with the consent and concurrence of any two of the Aldermen thereof, or for any three of the Aldermen, to direct and order the same, or any other building which they may deem hazardous and likely to take fire, or to convey the fire to other buildings, to be pulled down or destroyed.”
The power hereby granted is ample; it is fully set forth in the plea, and confessed by the demurrer; if, therefore, the statute is of any validity, it must afford a complete justification, not only for the destruction of the building, but of its contents, the goods set forth in the declaration ; for it would be worse than idle for the Legislature to authorize the destruction of a building in an emergency like that under consideration ; but at the same time to hold the individual liable for the destruction of whatever was within the house, and which from the very necessity of the case could not be removed without the removal itself defeating the very object of the law, as well as being the means of destroying the property. It would be like authorizing the taking of the pound of flesh, but not the shedding one drop of blood. Lex non eogit ad impossibilia,. JBacon’s Maxims, 116.
Nor can any written order be necessary ; the statute does not require it, and it would be strange if it did. It authorizes the Mayor, with the assent of two Aldermen, to act on an extreme *263emergency, requiring prompt if not instant execution, in order to render the action of any avail, affording neither time nor opportunity for formal deliberation or written orders, entirely unlike the cases of the abatement of nuisances by order of the corporation referred to in 15 Wend. 262 and 397, where the court determined that the proceedings of the board of health in the matter, could not be proved by parol, unwritten evidence.
Another objection taken is, that the act refers the question of necessity wholly to the judgment of the Mayor and two Aider-men, and does not leave it open for the determination of a jury. I do not know what public officer would ever be willing to perform so responsible a duty as that required here, if he must be answerable in damages to the whole amount of property destroyed for a mere act of misjudgment, and that to be determined by a jury on the evidence or opinion of the bystanders, grown much wiser after, than they were before, the transaction. It is correctly made the duty of those required to act, to judge of the time and necessity for the action, the same, of course, as in all other cases of the performance of public duty by an officer or agent, rendering him liable for any wanton exercise of authority. In matters of this kind, and of assessment, no jury is necessary under the constitution, the'case not being a suit or action at common law, or in which a trial by jury “ has been heretofore used,” as expressed in the constitution.
We come now to the point mainly relied on in this case, viz: that by the constitution of New York, as well as that of the United States, (a) private property is not to be taken for public use without just compensation, and that if the construction of the statute now under consideration be such as to exclude from the compensatory part all goods destroyed not belonging to the owners or occupants of the building destroyed, then the act as to those goods is unconstitutional. Waiving any consideration of the term “ public use,” and of its applicability to a case wherein the state or its citizens generally have not, and can have no real interest — for which see opinions of Oakley and *264Bronson, JJ. in Lawrence v. The Mayor &c. of New York, and also whether an act appropriating private property for public use, can in any respect be unconstitutional, because the compensation provided is not as broad as the act itself, there being in it no regulation as to the compensation — for which see opiniop of Savage, C. J., in Wheelock v. Young & Pratt, 4 Wend. 647, I come at once to the real point in the case, and that is, that in my opinion here is no appropriating or taking of private property for public use. This is very unlike the cases where the State, by virtue of its right of eminent domain, resumes the property of a citizen, and appropriates it to the use of the public ; or in prosecuting some great public work, such as a canal or railroad, even in its sovereign capacity, or through the power-delegated to an incorporated company, finds it necessary not merely to take the soil and property of the citizen, but to destroy his mill seat, divest his water course, or commit other irreparable damage to private rights in order to effect the great object in view. In such cases not only must private rights yield to the interest and wishes of the State, but it is a positive evil suffered by an individual for the supposed gain of the whole community, at the will of that community, and upon every principle of justice the public should make compensation, and this has accordingly been provided for by the Constitution of the United States, and of most of the State governments. But where a ship is in danger of foundering, and a part of the cargo is thrown overboard to save the residue, or where a house in the midst of the city is infected with a dangerous disease, and is pulled down, and the place purified to prevent the spread of contagion, or where a fire occurs in a city, and to stay its desolating ravages it is necessary to pull down or destroy the adjoining buildings — in each of these cases the individual suffers; his property is destroyed in order that other property in the vicinity may be saved, and he may, or may not have redress under the common or statute law, but he will have no right to resort to the State, under the idea that it was taken for the public use. This was a case where inevitable danger arose to a community of goods or persons, and the law of necessity would authorize the use or the destruction of the first property that would avert *265that danger, no matter whose or what it was ; the whole community were in the same situation ; all had equal rights, and were subject to equal liabilities ; and if A’s property was destroyed, and 13’s saved, it was merely the misfortune of the one and the good fortune of the other, which strict equity might require to be equalized in that immediate community - but if the law afforded no redress, the constitution could not. The statute of Now York has given relief to certain classes of sufferers, requiring the corporation to make compensation ; but the class to which the plaintiffs in their suits belong, the statute does not extend. In those cases, it was the bounty of the law that provided a remedy where none before existed: to these cases that bounty has not been extended. Whether the reasons for the distinction are satisfactory, or otherwise, is not for us to determine ; it is sufficient for us to know that the difference exists.
Some confusion has arisen in the argument of these cases, in supposing that the statute conferred on the defendant a new power which did not before exist, but this is not so; the statute merely affirmed the principles of the common law, and in order to give the principle of necessity the more promptness and efficiency of execution to answer the emergency of the case, it directed' the Mayor and Aldermen to put it into operation. What the defendant did under the statute, ho might have done without it, relying on the common law for justification ; this was determined in this State by the late Chief Justice in an interesting case tried before him some years since at the Essex Circuit, wherein damages were sought to be recovered against Capt. Williamson for blowing up a building in the city of Newark to prevent the spread of fire, under circumstances similar to the case now under consideration. The principle is also fully sustained in Mouse’s case, 12 Co. R. 63; 15 Viner’s Abridgt. tit. necessity A, § 8; Maleverer v. Spinke, 1 Dyer 360; Jenkins 207 case 38; Puffendorf Lib. 2 c. 6; Republic v. Sparhawk, 1 Dall 357.
The defendant’s plea then being fully sustained by the statute, and that being in accordance with the principles of the common law, and as there was no taking of private property for public use within the meaning of the constitution, I am *266clearly of opinion that the demurrer should be overruled, and judgment be rendered for the defendant.
Demurrer overruled, (a)
It is well settled, that this and the other restraining clauses in the Federal Constitution not expressly applied to the States, restrain only the power» of the Federal Government.
a) The decision of this court in this case was reversed in the Court of Errors, at the Term of October, 1848.
See Hale v. Lawrence, 1 Zab. 714; Same Case, 3 Zab. 9. Cited in Trenton Water Power v. Raff, 7 Vr. 343.