
    STATE OF NEW JERSEY v. PATRICK SUTTON, PROSECUTOR.
    Argued June Term, 1912
    Decided October 21, 1912.
    '1. The act of 1912 (Pamph. L., p. 285), requiring street railways to grant free transportation of unifprmed public officers while engaged in the performance of their public duties and of detectives whose duties require police duty to be performed without uniform, is constitutional so far at least as relates to members of the police force.
    "2. Consideration of the constitutionality of an act of the legislature ought to be limited to the exact case presented.
    .'3. Where a street railway is required to carry police officers without payment of fare, it is not strictly accurate to say that the company receives no compensation; there may be an indirect compensation in the protection afforded by the mere presence of the officer.
    4. The legislature may reasonably think that the services of a police, officer may be required at any time upon a street car to prevent violations of lav, and may. in tile exercise of tlie police power of the state, legalize his presence on the car without payment of fare.
    .5. The constitutionality of legislation is not always to he tested by abstract, reasoning. It depends in part at least upon the habits and customs of the community, and if a custom, existing when a corporation acquires its rights, is given the-force of statutory law, the corporation loses nothing which it had either in jtossession or immediate anticipation at the time of its incorporation.
    On certiorari bringing up conviction before a magistrate.
    Bel'010 Justice Swayzk, pursuant to the statute.
    For the prosecutor, William D. Edwwds (Edwards & .Smith).
    
    For the state, Thomas G. Haight (Warren Dixon on the ibrief).
   The opinion of the court was delivered by

Swayze. J.

The prosecutor was convicted of assault and battery upon a detective, a member of the police force of ■Jeisey City, and justified upon the ground that the detective was lawfully ejected hv the prosecutor acting as servant of the Public Service Kailway Company, for refusal to pay fare. This defence was met by the aef of 1912 (Pamph. L., p. 235), requiring street railways to grant free transportation of uniformed public officers while engaged in the performance of their public duties, and of detectives whose duties' require police duty to be performed without uniform. No question is made that the detective was a public officer and came within the provisions of the act. Its constitutional validity 'is questioned because it is said to take the railroad company’s property without compensation. No other point was argued. Wilson v. United Traction Co., 76 N. Y. Supp. 203, is a clear authority in favor of this contention. . The state relies upon the decision of the Supreme Court of the United States in Interstate Consolidated Street Railway Co. v. Massachusetts, 207 U. S. 79. That case, however, involved the question of the right to require the transportation Of school children at less than cost — half fare — and not the question of the right to require free transportation. The act now in question requires the free transportation of all public officers in uniform. It.is not limited to members of the police force. But as the present case involves only the class last named, and so far as appears no other class of public officers will ever claim its privileges io the injury of the company, consideration of the constitutionality of the act ought- to be limited' to the exact case presented. Tyler v. Judges of the Court of Registration, 179 U. S. 405; Smiley v. Kansas, 196 Id. 447; Grenada Lumber Co. v. Mississippi, 217 Id. 433; Citizens National Bank v. Kentucky, Id. 443.

All I need decide is whether the requirement of free transportation for members of the police force is within the power of the legislature.

I ought to sustain the legislation if I can consistently with the constitutional provisions. Attorney-General v. McGuinness, 49 Vroom 346. Three considerations lead me to think I-can, notwithstanding the decision by the Appellate Division in New York.

First. It is not strictly accurate to say that the company •receives no compensation for carrying police officers if they pay- no fare. It may well be that there is an indirect compensation in the protection afforded by the mere presence of the officer, against pickpockets, or even against assaults on passengers by the company’s own servants for which the company would be liable (Haver v. Central Railroad Company, 33 Vroom 282), and in the help thus given to the company in the performa.nee of its duty to its passengers. Indirect compensation of this character has been recognized as compensation within the meaning of the constitution. Valentine v. Englewood, 47 Id. 509, 518, which cites .with approval the remark of Justice Devens in Miller v. Horton, 152 Mass. 540.

Second. The statute of 1912 may fairly be regarded as an exercise of the police power of the state. Policemen are frequently required to be on street cars in the execution of their duties to preserve the peace, to enforce ordinances and io prevent or detect crime. It would be difficult to say that the mere presence of a police officer might not be of value for securing these objects, and it would he difficult if-not impossible to distinguish in principle between his right, for example, to he on a crowded ear to arrest pickpockets and his right to be on a car not crowded to enforce the ordinance against spitting. If he has the right to be there for these purposes it is impossible to say that his services may not at any time be required to prevent violations of law; at any rate, the legislature might reasonably think so-, and' legalize his presence on the car without payment of fare.

Third. The constitutionality of legislation is not always to he tested by abstract reasoning. It depends in part at least upon the habits and customs of the community. The-Mill acts, authorizing dams by which the land of other owners are flowed (Head v. Amoskeag Mfg. Co., 113 U. S. 9); the acts providing for drainage of swamp lands, at the expense in part of unwilling owners (Wurts v. Hoagland, 114 Id. 607); the taking of land for a levee ill Louisiana (Eldridge v. Trezevant, 160 Id. 452); the irrigation of arid lands (Fallbrook Irrigation District v. Bradley, 164 Id. 112; Clark v. Nash, 198 Id. 361) ; the construction of an aerial bucket line across another man’s land (Strickley v. Highland Boy Mining Co., 200 Id. 527), are all instances of the extent to which the right of property may be modified by local customs or local needs, and justify the language of the United States Supreme Court in Otis Co. v. Ludlow Co., 201 Id. 140 (at p. 154), that “even the incidents of ownership may be cut down by the peculiar laws and usages of a state.” It is shown in-this case that at the time of the incorporation of the defendant company, and for many years prior thereto, and subsequently until the Public Utilities act of 1910 (Pamph. L., p. 56) was supposed to make the practice illegal, it had been the custom of the street railway companies to carry members of the police force free. The defendant company acquired its rights while that custom was in vogue, and if the custom is now given the ■ force of statutory law, the company loses nothing which it had either in possession or immediate anticipation at the time of its incorporation. In that respect the case resembles Interstate Consolidated Street Railway Co. v. Massachusetts, in which, however, the requirement of a half fare rested upon an antecedent statute. The underlying principle, however, is the same. It was upon this ground that the majority of the court decided that case. Upon it I may rest my view that the act of 1912, as far as it applies to police officers, is valid. Eurther than that I need not go in this case. Assuming what was not questioned that they are public officers within the meaning of the act, the defendant had no right to eject the detective and the judgment must be affirmed.  