
    Albert H. Beardsley, Respondent, v. The New York, Lake Erie and Western Railroad Company and Others, Appellants.
    
      The New York, Lake Erie and Western R. R. Co. must issue mileage hooks — Laws of 1892, chap. 565, § Hi, fixing rates of fare, applies to it — Laws of 1895, chap. 1027, § 1, is valid—it does not apply to interstate commerce.
    
    It was the intent of the Legislature to include, within the classifications of section 37 of chapter 565 of the Laws of 1890, as amended by chapter 676 of the Laws of 1892, fixing the rates of fare which may be charged by railway corporations, every railroad corporation of the State of New York, except the New York Central Railroad Company, and this section prescribes the only rule which governs the entire subject.
    The New York, Lake Erie and Western Railroad Company, as reorganized under chapter 430 of the Laws of 1884, is amenable to the provisions of subdivision 5 of said section 37, providing that “in all other cases (there may he charged) three cents for every such mile or fraction thereof, with a right to a minimum single fare of not less than five cents,” and it is, therefore, subject to the penalty imposed by section 1 of chapter 1027 of the Laws of 1895 upon a “railroad corporation operating a railroad in this State, the line or lines of which are more than one hundred miles in length, and which is authorized by law to charge a maximum fare of more than two cents, and not more than three cents. per mile,” which refuses to “issue mileage books entitling the holder thereof to travel one thousand miles on the line or lines of such railroad,” a service for which the corporation may charge a sum not to exceed two cents per mile.
    The right given by section 14 of chapter 324 of the Laws of 1832 to the New York and Brie Railroad Company, of which the New York, Lake Erie and Western Railroad Company is the successor, “to fix, regulate and receive the tolls and charges by them to be received for transportation of property or persons,” is not preserved to it by section 181 of chapter 565 of the Laws of 1890, providing that the repeal of a law (specified in the schedule annexed to the act) should not affect or impair any act done or right accruing, accrued or acquired under and by virtue of the law so repealed, as that section was itself repealed by chapter 676 of the Laws of 1892, and the provision on the same subject, section 31 of chapter 677 of the Laws of 1892, known as the Statutory Construction Act, is limited by section 1 of that law, which provides that the act “is applicable to every statute unless its general object, or the context of the language construed, or other provisions of law, indicate that a different meaning or application was intended from that required to be given by this chapter.”
    Chapter 1027 of the Laws of 1895 does not violate the commerce clause of the Federal Constitution, as to the New York, Lake Erie and Western Railroad Company, although that railroad starts in the State of New Jersey and runs for more than 100 miles in each of the States of New Jersey, Pennsylvania and New York, as the act does not, in terms, interfere with the carriage of passengers outside of the State of New York and may be construed as intended to refer only to such railroads as operate within that State a line or lines more than 100 miles in length, and to limit the use of mileage hooks to such lines; and in this view may he considered as applying solely to commerce within that State.
    Apart from the question of interstate commerce, the Legislature has power to „ compel a railroad company to issue mileage books, and it seems that the fact that the use of mileage hooks may cause inconvenience to the corporation, while it may present a question for the consideration of the Legislature, does not present one to the courts.
    Appeal by the defendants, The New York, Lake Erie and Western Railroad Company and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Chemung on the 18th day of July, 1896, upon the decision of the court, rendered after a trial at the Chemung Special Term, a jury trial having been duly waived, and also from an interlocutory judgment entered in said clerk’s office on the 26th day of December, 1895, overruling the defendants’ demurrer to the complaint.
    The action is brought to recover a penalty of fifty dollars for a violation of section 1, chapter 1027 of the Laws of 1895, which is as follows:
    
      “ § 1. Every railroad corporation operating a railroad in this State, the line or lines of which are more than one hundred miles in length, and which is authorized by law to charge a maximum fare of more than two cents per mile, and not more than three cents per mile, shall issue mileage books entitling the holder thereof to travel one thousand miles on the line or lines of such railroad, for which the corporation may charge a sum not to exceed two cents per mile. Any railroad corporation which shall refuse to issue a mileage book as provided by this section, or, in violation thereof, to accept such mileage book for transportation, shall forfeit fifty dollars, to be recovered by the party to which such refusal is made; but no action can be maintained therefor unless commenced within one year after the cause of action accrued.”
    The opinion of the Special Term, in overruling a demurrer to the complaint, will be found in 17 Miscellaneous Reports, 256.
    
      Frederic B. Jennings and David C. Robinson, for the appellants.
    
      Herendeen & Mandeville, for the respondent.
   Merwin, J.:

1. It is claimed on the part of the defendants that the defendant corporation is authorized by law to charge more than three cents a mile, and that, therefore, it is not subject to the act in question.

It is alleged in the complaint, and admitted by the answer, “ that the defendant is a railroad corporation organized and created under and by virtue of ' An act to facilitate the reorganization of railroads sold under mortgage, and providing for the formation of new companies in such cases,’ passed May 11, 1874, and the act amending the same, passed June 2, 1876, being formed by the reorganization of the New York and Erie Railroad Company, incorporated under and by virtue of chapter 222 (224) of the Laws of 1832, and the Erie Railway Company, incorporated under and by virtue of chapter 160 of the Laws of" 1860, and chapter 119 of the Laws of 1861.”

Chapter 224 of the Laws of 1832 is entitled An act to incorporate the ¡New York and Erie Railroad Company,” and by section 14 it is provided that “ it shall be lawful for the company hereby incorporated, from time to time, to fix, regulate and receive the tolls and charges by them to be received for transportation of property or persons ” on the railroad authorized to be constructed. By section 21 it is provided that the Legislature may at any time hereafter alter, modify or repeal this act.” Under the acts of 1860 and 1861, and through a foreclosure sale of the ¡New York and Erie railroad, the Erie Railway Company became the possessor of all the rights, franchises, powers and privileges of the Yew York and Erie Railroad Company, and these, as it may be assumed, were subsequently acquired by the defendant corporation under the Reorganization Act of 1874 (Chap. 430, Laws of 1874), as amended by chapter 446 of 1876.

It is conceded by the plaintiff that the defendant corporation was subject to no limitation with regard to the rates of fare to be charged by it prior to the passage of chapter 565 of the Laws of 1890, known as the Railroad Law. By section 37 of that law, as amended in 1892 (Chap. 676), it is provided that “ Every railroad corporation may fix and collect the following rates of fare as compensation to be paid for transporting any passenger and his baggage, not exceeding one hundred and fifty pounds in weight, for each mile or fraction of a mile.” Then follows four classes of cases wherein more than three cents a mile may be charged. The fifth or last class is as follows : 5. In all other cases, three cents for every such mile or fraction thereof, with a right to a minimum single fare of not less than five cents.” Then is added to the section the provision that the chapter shall not be construed to allow the Yew York Central Railroad Company to take more than two cents per mile wherever it is now restricted to that sum. The plaintiff claims that the defendant corporation is within class 5, while the defendants claim that section 37 is only permissive and does not affect the right given to their predecessor.

It is quite manifest that it was the intent of the Legislature to include within the classification of section 37 every railroad corporation except the Yew York Central, and prescribe the only rule or rules which should govern the entire subject. That being so, it was applicable to the defendant corporation (Dexter & Limerick Plankroad Co. v. Allen, 16 Barb. 15; Daviess v. Fairbairn, 3 How. [U. S.] 636; Heckmann v. Pinkney, 81 N. Y. 211) although it operated to modify its previous right under a special act. The rule that a special act is not affected by a subsequent general act does not apply if the intent is manifest that the general act should apply to all cases whether existing under general or special acts. (McKenna v. Edmundstone, 91 N. Y. 233.) It is argued that the prior right of the defendant corporation was preserved by section 181 of the act of 1890, which provided that the repeal of the existing law should not affect or impair any right accruing, accrued or acquired under and by virtue of the law so repealed. This section was itself repealed by chapter 676 of the Laws of 1892. The provision on the same subject, being section 31 of the Statutory Construction Law (Chap. 677 of 1892), is limited by section 1 of the same law, which provides that the act “ is applicable to every statute unless its general object, or the context of the language construed, or other provisions of law, indicate that a different meaning or application was intended from that required to be given by this chapter.”

The defendant company is, we think, subject to the act in question.

2. It is further claimed by the defendant that the act of 1895 is in violation of the commerce clause of the Federal Constitution, and, therefore, invalid. That depends upon whether the act is to he construed as interfering with interstate commerce.

The defendants operate a line of railroad running from Jersey City in the State of Hew Jersey, through the States of Hew Jersey, Pennsylvania and Hew York, and more than 100 miles in length in each of said States, and also own, control and operate through leases, traffic contracts and otherwise a continuous line of railroad from Hew York to Chicago and through or into the States of Hew Jersey, Pennsylvania, Ohio, Indiana and Illinois. By the act of 1832, the Hew York and Erie Railroad Company was given power to construct a single, double or treble railroad or way, from the city of Hew York to Lake Erie, commencing at the city of New York, or at such joint in its vicinity as should be most eligible and convenient therefor, and continue the same through the southern tier of counties by way of Owego to the shore of Lake Erie.

The general rule is that a State has power to limit the amount of charges by railroad companies for the transportation of persons and property within its own jurisdiction, unless restrained by some contract in the charter, or unless what is done amounts to a regulation of foreign or interstate commerce. (Stone v. Farmers' Loan & Trust Co., 116 U. S. 325; Georgia Banking Co. v. Smith, 128 id. 179.) In Wabash, etc., Railway Co. v. Illinois (118 U. S. 557) it was held that a statute of a State, intended to regulate, or to tax or to impose any other restriction upon the transmission of persons or property from one State to another, is not within that class of legislation which the'States may enact in the absence of legislation by Congress, and that such statutes are void, even as to that part of such transmission which may be within the State. In the opinion it is said that if the statute could be construed to apply exclusively to contracts for a carriage which begins and ends within the State, disconnected from a continuous transportation through or into other States, there would not seem to be any difficulty in holding it to be valid. In respect to the construction in that regard, the Federal court followed the decision of the State court. And so it did in Louisville, etc., Railway Co. v. Mississippi (133 U. S. 587), where the construction was in favor of the validity of the law, although, as it would seem, it might necessarily affect interstate passengers. The act as declared valid required “ all railroads carrying passengers in this State (other than street railroads) ” to provide separate accommodation for the white and colored races, and required the conductors of each train to assign passengers accordingly. In Stone v. Farmers' Loan & Trust Co. (supra), it is said, at page 331: “ It is not enough to prevent the State from acting that the road in Mississippi is used in aid of interstate commerce. Legislation of this kind to be unconstitutional must be such as will necessarily amount to or operate as a regulation of business without the State as well as within.”

“ The courts must so construe a statute as to bring it within the constitutional limitations if it is susceptible of such a construction.” (Sage v. City of Brooklyn, 89 N. Y. 189; People ex rel. Sinkler v. Terry, 108 id. 1.)

The act in question is a general one. It does not, in terms, interfere with the carriage of passengers outside of the State. It may be construed as intending to refer only to such railroads as operate within this State a line or lines more than 100 miles in length, and to limit to such lines the use of the mileage books therein provided for. It may be construed to apply solely to commerce within the State and, therefore, no violation of the Federal Constitution. (Louisville, etc., Railway Co. v. Mississippi, supra; Attorney-General v. Old Colony Railroad, 160 Mass. 81) It should, we think, be so construed. (See Dillon v. Erie R. R. Co., 19 Misc. Rep. 116.)

It is argued by the defendants that, from the extrinsic evidence of the circumstances under which the act in question was passed, it is apparent that there was an intention to have the mileage books applicable to carriage on the lines of the road outside of the State. There is no finding to this effect, and in its absence and the absence of any expression of such intention in the law itself, we have not, I think, any right to conclude that such was the intention. The decision below, if it be deemed a general one without expressing the facts found, is, as said in Amherst College v. Ritch (151 N. Y. 282, 320), “ the same as if there had been a general verdict rendered by a jury, and * * * the same presumptions arise in its support.” It is found that the act is a valid exercise of legislative power and requires the defendants to furnish the plaintiff a mileage book entitling him to travel 1,000 miles on the line or lines of the railroad of the defendants in trips wholly within the State. We find no good reason for disturbing that conclusion.

3. It is further claimed that the rate fixed by the act in question is unreasonable in its amount, and, therefore, invalid. It is sufficient to say that there is no defense set up .in the answer of this kind. It is, however, alleged that the use of the mileage books would be inconvenient and impracticable, and evidence was given upon that subject. The fact, however, is not so found. The legislative rate is, at least, presumptively reasonable. (Ruggles v. Illinois, 108 U. S. 541; Budd v. New York, 143 id. 517, 545.) There is, aside from the interstate question, no doubt about the legislative power. (People ex rel. Kimball v. B. & A. R. R. Co., 70 N. Y. 569 ; People v. Budd, 117 id. 1, 25.) In the latter case it is said (p. 25) : “ If the power to legislate exists, the court has nothing to do with the policy or wisdom of the interference in the particular case, or with the question of the adequacy or inadequacy of the compensation authorized.” In Ames v. Union Pacific R. Co. (64 Fed. Rep. 165, 172) it is said by Judge Brewer that railroad companies cannot plead their own convenience, or the effects of competition between themselves and other companies, in restraint of the otherwise undeniable power of the State.” The same view was taken in the case cited from 160 Massachusetts at page 81. In Covington, etc., Bridge Co. v. Kentucky (154 U. S. 204, 211) it is said that under the police power “ the States may also prescribe the form of all commercial contracts, as well as the terms and conditions upon which the internal trade of the State may he carried on.”

The Legislature, under the power reserved in the act of 1832, and embodied in the Constitution of 1846 (Art. 8, § 1), as well as in the present Constitution, had the right to legislate upon the subject without being subject to the charge of impairing the obligation of contracts. (See Penn. R. R. Co. v. Miller, 132 U. S. 15) If section 38 of the Railroad Law, which imposed certain restrictions on the reduction of fare^, should be deemed applicable to the defendant, there was nothing to prevent its modification by a subsequent act of the Legislature.

The j udginent should be affirmed.

All concurred, except Parker, P. J., not sitting.

Judgment affirmed, with costs.  