
    (32 Misc. Rep. 311.)
    WATSON v. DELAWARE, L. & W. R. CO.
    (Supreme Court, Trial Term, Oneida County.
    July, 1900.)
    Constitutional Law—Railroads—Mileage Books—Due Process or Law.
    Laws 1895, e. 1027, subjecting railroad companies to a penalty for refusal to issue mileage books to passengers at two cents per mile, is not enforceable against a railroad company organized before the passage of such statute, the charter of which authorized it to charge a fare of three cents per mile, as the statute deprives such company of property without due process of law, within the prohibition of the fifth article of the amendments to the federal constitution.
    Action by Frank T. Watson against the Delaware, Lackawanna & Western Bailroad Company for a penalty for refusal to issue a mileage book at two cents per mile, as required by Laws 1895, c. 1027.
    Dismissed.
    D. F. Searle, for plaintiff.
    Wm. Kernan, for defendant.
   WRIGHT, J.

The defendant corporation was in existence prior to the enactment of the statute in question. Its charter authorized a maximum charge of three cents a mile. It therefore had a vested right to charge that sum from all passengers for every mile traveled. The statute in question deprives the defendant of that right, to the extent of one cent per mile, whenever any person may demand a mileage book. Const. U. S. Amend, art. 5, provides that “no person shall be * * " deprived of if * * property, without due process of law.” This statute, arbitrarily, without due process of law, deprives the defendant of the right to full compensation for services according to its charter. It is therefore in violation of the article of the constitution above mentioned. This question has been recently settled by the court of appeals in the case of Beardsley v. Railroad Co., 162 N. Y. 230, 56 N. E. 488. The decision of that case is based upon the decision of the United States supreme court in the case of Railroad Co. v. Smith, 173 U. S. 684, 19 Sup. Ct. 565, 43 L. Ed. 858. Judge Beckham, in writing the opinion of the court, says:

“We cannot regard this exceptional legislation as the exercise of a lesser right which is included in the greater one, to fix by statute maximum rates for railroad companies. * * * The act is not a general law upon the subject of rates, establishing maximum rates. * * * The legislature, having established such maximum as a general law, now assumes to interfere, * * * and provides for discrimination in favor of those who * * * purchase tickets at what might be called wholesale rates,—a discrimination which operates in favor of the wholesale buyer, leaving the others subject to the general rule. * * * It thus compels it [the company] to give the use of its property for less than the general rate, * * * and to that extent it would seem that the statute takes the property of the company without due process of law. * * * The power of the legislature to enact general laws regarding the company and its affairs does not include the power to compel it to make an exception in favor of some particular class. * * * This is not reasonable regulation.”

This action, therefore, must be, and is hereby, dismissed, with costs. Findings may be prepared accordingly.

Action dismissed, with costs.  