This certiorari brings before the court for review, upon the application of the New Jersey Railroad and Transportation Company, whose enjoyment of their railroad is affected by it, an ordinance of the defendants entitled, “ A supplement to an ordinance entitled an ordinance declaring nuisances,” passed June 19th, 1836.
The second and fifth sections of this ordinance are complained of.
Section 2. That the running of any locomotive steam-engine, train of cars, or cars of any kind whatsoever, through or upon any track, street or thoroughfare in this city at a faster or greater speed than one mile in six minutes shall be considered and is hereby declared to be a nuisance.
Section 5. That all and every locomotive or steam-engine, all steam carriages or railroad cars, which may stop or cease in one spot, between Warren and Prospect streets, on its or their passage through the city, shall be considered to be a nuisance.
The attempt to regulate the speed of the trains at other points within the city than street-crossings is complained of.
That part of the fifth section which prohibits the standing of trains at any place on the track of the company between Warren and Prospect streets is also complained of.
Two questions were raised by the prosecutors.
1. Had the corporation by their charter, properly con strued power to pass the sections under the power to declare nuisances?
*1722. If they have, have they not exceeded the limits of the power to declare nuisances in declaring acts nuisances which cannot be detrimental to the public health, safety or convenience ?
By the charter of the defendants, the powers of the common council are very carefully defined and classified under forty-three different heads or subdivisions, each of which is carefully confined to one subject.
The sixth subdivision relates to the streets, squares and public grounds, and among other things declares that the common council shall have power to prevent immoderate driving in the streets and riding or driving over or upon the sidewalks, and to regulate the speed and running of locomotive engines and railroad cars through said city.
The eighth subdivision gives them power, by general law, to declare what shall be considered nuisances in lots, streets, docks, wharves and piers, and to direct, provide for and enforce their removal.
The second section of the ordinance does not profess to be in execution of the power to regulate the speed and running of locomotive engines and railroad cars through said city, but of the power to declare nuisances by general law.
This is not such a nuisance as was intended by the charter. The power given by the sixth section make? this plain. The design of the sixth and eighth sections was entirely different. The powers given by the one are not given by the other. The eighth section does not include the doing of an act, or contemplate an act as possibly to be declared a nuisance. It is confined to stationary nuisances, such as can be removed.
Nor is the railroad track a lot, street, dock, wharf or pier, within the meaning of the act. It is a public highway under the authority of the legislature, but is not a street of the city.
This construction of the eighth section invalidates both *173sections of the ordinance complained of. But it was insisted, for the city, that the sixth section of the fourth title of the city charter, already cited, authorized the second section of the ordinance. We have already seen that the careful distribution and classification of the powers of the common council forbid the confounding of the power to regulate speed with that of declaring nuisancesj that each power is to be executed by itself, by means of legislation appropriate to the power. Independently of this view, which seems conclusive, if it were otherwise, if the two powers cari be exercised together, as they have been in tin’s ordinance, the sixth section does not, by a fair construction, authorize the regulation of the speed of locomotives and trains at other points than the streets of the city, its squares, and public grounds. All the powers conferred in this section relate to these places. The general words must be restrained by the connection in which they are found. The closing words of the section manifest the meaning of the legislature, and in every other respect to secure to the public and adjoining owners the safe and convenient use of the streets, and sidewalks, squares and public grounds, for the purposes for which they are or may be laid out or dedicated. This declares that to have been the object of the previous provisions.
But assuming that the track of the railroad, where it does not intersect a street, is a lot within the meaning of the charter, and that the power to regulate speed need not be exercised under the sixth section exclusively, and is not confined to streets, &c., the question was discussed at the bar, whether the power to declare nuisances is without limit, except in the discretion of the common council; and if not, whether the whole of the two sections complained of are within those limits.
Did the legislature intend to confer absolute power upon the common council? Can it declare every four story brick dwelling-house a nuisance, and direct and *174provide for its removal ? Can it declare every covered carriage standing upon any lot in the city, or passing along the streets at a greater speed than one mile per hour, or stopping in any street of the city for one moment, a nuisance? And yet it is not preceived that any sound distinction can be made which will permit the exercise of the power in the cases provided in the ordinance, and not in those supposed.
It may be difficult to define with precision the limits of the power, and yet its attempted exercise in any given case may so clearly fall without those limits as to enable us to say this is not a legitimate exercise of the power.
Those, parts of the two sections of the ordinance which attempt to control the mode in which the prosecutors shall use their track at other points than where it crosses streets and public places, so long as that use is authorized by their charter, are not legitimate exercises of the power to declare nuisances. It is not to be presumed that the legislature intended, by the grant of this general power, to enable the common council to repeal in effect the express powers granted by the charter of the prosecutors.
The eighth section of the company’s charter authorizes them to regulate the description and formation of carriages that shall be used on the railroad, and all necessary machines, engines, wagons, carriages, or vehicles, and to regulate the time and manner of transporting goods and passengers on the railroads. The object of this provision was to vest in the company the entire management of the business of transporting freight and passengers j and assuming' that the legislature have the power to alter or repeal by express words this section, which was denied by counsel upon the argument, they will not be held to have done it by grant of general powers, which can be exercised without conflicting with the provisions of their charter. State v. Minton, 3 Zab. 529.
In that case this court held that the general tax law declaring all lands liable to taxation, and repealing all *175acts and parts of acts inconsistent with its provisions, did not repeal the provisions of a railroad charter exempting from taxation its lands. The court said the reasonable inference always is, that when the legislature intend to take away these, they will do it in express terms, and e converso, when they do not do it in express terms they do not intend to do it. Expressio unis est exclusio alterius. How far the legislature designed to interfere with the privileges of the -company, they have said by giving the power to regulate speed in the streets of the city.
The common council, in the exercise of the power to declare nuisances, may not declare anything such which cannot be detrimental to the health of the city, or dangerous to its citizens, or a public inconvenience, and even then not when the thing complained of is expressly authorized by the supreme legislative power in the state. Its legislation must be subordinate to that of the state, the power to which it owes existence. When its acts of legislation are brought before this court, whose high duty it is to see that inferior tribunals vested with a limited jurisdiction, whether legislative or judicial, do not exceed their power, we must determine whether those acts are.valid or not. Ludlow v. Executors of Ludlow, 1 South. 387; Whitehead v. Gray, 7 Halst. 38; City of Camden v. Mulford, 2 Dutcher 49.
I cannot think an ordinance declaring the running of any locomotive or train of cars upon any track in the city at a greater rate than one mile in six minutes a removable nuisance, or declaring the stopping of a train of cars for one moment upon the track of a railroad authorized by law, where the track does not cross a street or a public square, a removable nuisance, or a fair or legal exercise of the power to declare nuisances and provide for their removal. It is an unwarrantable interference with franchises granted by the legislature to be exercised by the prosecutors for the public good. The doing of such acts *176cannot interfere with the public health, expose the inhabitants of the city to danger or inconvenience. I do not see why any railroad depot, or track, or freight-house, any train of cars in motion or stationary at any point in the city, eannot, under the same power, with equal propriety be declared nuisances, if the common council should so determine.
Whether an ordinance, confined by its terms to a particular part or street of the city, can be said to be a general law may admit of some doubt. If it may be limited to one street, why not to one house? It seems to me that when the legislature used the term general law they intended to provide against restricted local legislation, by which the common council might, under the form of declaring a nuisance, single out the property of a single citizen or corporation, and confiscate it for the publio good.
The ordinance, so far as it attempts to control the speed of locomotive engines or cars upon the track of the prosecutors at other points than its intersection with streets and public grounds, and preventing their stopping their trains at such places, is an unwarrantable exercise of power not authorized by the charter, and should be declared void pro tanto.
Ogden, J., concurred.