
    The Monticello and Fallsburgh Turnpike Road Company, Plaintiff, v. Ellsworth Leroy, Defendant.
    
      Monticello and Fallsburgh Turnpike Road Company—no exemption from toll exists in the case of persons living within one mile or one-half mile of the toll gate.
    
    The Monticello and Fallsburgh Turnpike Road Company was organized in April, 1889, under 'the provisions of chapter 210 of the Laws of 1847 and the several acts amendatory thereof. Such acts authorized it to collect tolls at the rate of a certain sum per mile, and provided that certain persons should be entirely . exempt from the payment of tolls and that persons living within one mile of the toll gate should be liable for toll at one-half of the prescribed rates.
    In June, 1889, a special act was passed (Laws of 1889, chap. 490) authorizing the turnpike company in question to charge fixed rates of toll instead of a specified sum per mile and making no distinction between persons living within a mile of the gate and those living at a greater distance therefrom, and making no reference whatever to any person as being exempt. The 2d section of such act provided that the company should possess the general powers, rights and privileges and be subject to the liabilities and restrictions of turnpike road companies, such as were or might be provided by the general statutes of the State, “ except as in this act otherwise provided.” The company operated its road under the special act.
    
      Held, that the provision of the general act that any person residing within one mile of the toll gate should pay one-half the rates that others paid, was abrogated as to the turnpike company in question because it was distinctly “ others wise provided” by the special act;
    That the rights acquired by the turnpike company under the special act were not limited by section 130 of the Transportation Corporations Law (Laws of 1890, chap. 566) which provides that persons living within one mile of the toll gate shall be exempt from the payment of tolls, nor .by chapter 538 of the Laws of 1893, which provides that persons living within one-half mile of a toll gate shall be exempt from the payment of tolls, it appearing that neither of the statutes last mentioned assumed to amend or repeal the special act.
    Smith, J., dissented.
    Submission of a controversy upon an agreed statement of facts, pursuant to section 1279 of the Code of Civil Procedure.
    
      George Holmes Smith, for the plaintiff.
    
      John P. Poosa, Jr., for the defendant.
   Parker, P. J. •:

The plaintiff was organized as a turnpike company in April, 1889, under the provisions of chapter 210 of the Laws of 1847 and the several acts amendatory thereof. In Jwne of that year a special act was passed in aid of such company, being chapter 490 of the Laws of 1889, and the company went on and completed its road in that year. It is live miles in length, leading from the village of Monticello to Fallsburgh Station, and a toll gate at each end — which is permitted by such special act — was erected, the one within a half mile of Monticello and the other within a half mile of Fallsburgh Station.

The defendant Leroy resides at such station within a half mile of the toll gate at that end of the road, and has so resided for more than five years. On the 26th of November, 1901, he passed through sucli toll gate with a horse and wagon without paying any toll, .and then and there refused to pay any although the proper amount was demanded of him. And he placed his refusal upon the ground that, inasmuch as he resided within one-half mile of such gate;, he was exempted from paying any tolls under the provisions of section 130 of the Transportation Corporations Law (Laws of 1890, chap. 566, as amd. by Laws of 1893, chap. 538). The proceeding is instituted to recover the penalty of ten dollars given by section 132 of the latter act. It is conceded that, unless the defendant is exempted from paying any tolls at such gate because of his residence within one-half mile thereof, he is liable for the penalty claimed.

If the plaintiff, when organized in 1889, had proceeded under the general statute of 1847 and the acts amending the same, it would have had the right to collect tolls at the rate of a certain sum per mile as provided by section 36 of such act, except as against persons living within one mile of the gate it could have taken only one-half of such rates. Also, by such statute of 1847 (§.47) certain persons, as for instance those going- to church, jurors, etc., were exempted from the payment of any tolls. By the special act of June, 1889, instead of the rates so fixed by section 36, it is allowed to maintain a toll gate at each end of its road and to exact at each gate as tolls ten cents for “every wagon, cart,” etc., “drawn by two horses, mules,” etc., and for every “additional horse, * * * five cents; ” also “ for every cart, sulky, wagon,” etc., “ drawn by one horse or other animal, five cents.” It also provides one cent per head for cattle, sheep or swine, and three cents for every horse or mule ridden, driven or led. No distinction is made for any difference in rates between those living within a mile and those living at a greater distance from the gate; nor is any reference made to any person as being exempt. The 2d section of the special act, however, provides in substance that such, company shall possess the general powers, rights and privileges, and be subject to the liabilities and restrictions, of turnpike road corporations such as is, or may be, provided by the general statutes of the State, “ except as in this act otherwise provided.”

Whatever may be said as to whether or not this statute relieves the company in question from the exemptions provided for in the general act, it seems clear that it fully regulates the rate of tolls that may be charged by the company. In the general act, persons living within one mile of the gate are not exempted from paying-toll. They must pay some toll, but the rate is there regulated at one-half as much as is therein charged against those living further away. In the special act, which clearly assumes to wholly regulate the rates, no such discrimination is made; all who are to pay at all, pay alike, and in this respect it clearly modifies the general act in favor of this company. Therefore, when this plaintiff commenced its business in 1889, the provision of the general act that any person residing within one mile- of the gate should pay one-half the rates that others paid was abrogated as to it, because it was distinctly otherwise provided ” by the special act in question; and hence also none of the -provisions of the 2d section operated to limit it.

The rights so acquired by this plaintiff still exist and are unchanged. In 1890, chapter 566, known as the Transportation Corporations Law, was passed, to take effect May 1, 1891. By section 130, the general law as to exemptions was amended, and it was substantially provided that persons living within one mile of the gate should be exempt from paying any toll. And again in 1893 (Chap. 538, amdg. Laws of 1890', chap. 566) it was further provided that persons living within one-half mile of the gate should be exempt from the payment of toll. But that section does not assume tó amend the special act of 1889, nor is that special act repealed. It still stands in full force and effect, and under it the plaintiff may. exercise the rights which are¡ clearly given by it.

It has been decided in Aurora & Buffalo Plank Road Co. v. Schrot (90 Hun, 56) that such section 130 applies to turnpike companies organized under the general act only, and the reasoning therein used is equally applicable to this case.

In the case before us the plaintiff, although taking its.existence under the general act, is operating under the special act of 1889, which, so far as any question here presented is concerned, gives it full and complete power to collect tolls from any person situated as-the defendant is. It did not have to invoke the general act to collect such tolls in 1889; on the contrary, it collected them in opposition to the provisions of that act. It is not to be supposed, -therefore, that, by amending the general act merely, and leaving the special act unrepealed and in full force, the Legislature intended to interfere with rights which by such special act it had previously given to such company.

I conclude that section 130, under which the defendant claims - exemption, is not applicable to this case, and that, therefore, judgment should be awarded against him for the penalty in such submission claimed.

All concurred, except Smith, J., dissenting in an opinion.

Smith, J. (dissenting):

The construction given by the learned presiding justice to chapter 490 of the Laws of 1889 is, in my judgment, too literal. The object of the statute was, I think, to authorize the plaintiff corporation to charge a fixed sum as toll, instead of a sum per mile, which was authorized to be charged under the general act of 1847, under which the plaintiff was organized. The 2d section of the act of 1889 provides that the plaintiff corporation “shall possess the general powers, rights and privileges and be subject to the liabilities and restrictions, except as in this act otherwise provided, of turnpike road corporations, as is or may be provided by the general statutes of this State.” This saving clause was intended, in my judgment, to subject the plaintiff corporation to the limitations provided by chapter 210 of the Laws of 1847, as amended. The logic of the presiding justice drives him to the position that those residing upon this road are to be discriminated against and cannot go to church, or to a funeral, or to town meeting, or to an election, or to court, without paying toll, while with all other turnpike companies organized under the act of 1847, under which this company was organized, those residing upon the road were exempted from the payment of toll when traveling for such purposes. I cannot believe that the Legislature so intended. In my judgment the exemptions in the general statute, in favor of those residing upon the line of road, including the exemption in favor of those residing within a mile of the toll gate, were intended to be reserved to those residing upon the line of this turnpike by the 2d section of the act of 1889. With this interpretation of the act it follows that section 130 of the Transportation Corporations Law applies and exempts the defendant from liability to pay toll, because of his residence within one-half mile of the toll gate. The location of the toll gates was not made by the statute. If the corporation has unwisely located its gates so as> to bring a. considerable number within the exemption, this fact furnishes no reason for the strict construction of an act which the court would otherwise construe liberally.

Judgment granted against the defendant for the penalty claimed in the complaint, without costs.  