
    The Mayor, etc., of New York, Resp’ts, v. The Third Avenue Railroad Company, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed May 18, 1888.)
    
    
      1. Statutes — Interpretation op — Intention op legislature must GOVERN.
    The interpretation of statutes must be governed by the intention of the legislature in passing them, which is to be ascertained from the cause and necessity of making the statute, as well as other circumstances.
    2. Same—Interpretation op—Spirit and purpose op the statute must be considered.
    The spirit and purpose of a statute are to be regarded in its interpretation, and if these are fairly expressed in the statute, it should be so construed as to carry out the legislative intent, even though such construction is contrary to the literal meaning of some of its provisions.
    3. Common council—Resolution op—Subject to rules op statutory interpretation.
    
      Held, that the common council, in conferring privileges upon the defendant by resolution, exercised legislative power, and that this resolution was to be interpreted by the rules ordinarily applied to the interpretation of legislative acts.
    
      4. Same—Resolution granting privilege to Third Avenue Railroad Company—What license pees exacted by.
    The resolution provided that the defendant should pay the annual license fee for each car then allowed by law and have license accordingly. Held, that the resolution was not to be interpreted as demanding that the annual license fee at that time paid on cars should be paid, but that the language was sufficient to impose on the defendant the obligation of paying the license fee exacted from vehicles, such as accommodation coaches engaged in similar work. Macomber, J., dissenting.
    Appeal from a judgment entered in favor of the plaintiffs by direction of the court, and from an order denying a motion for a new trial.
    
      J. P. Lowery, Edward Lauterbach and John E. Parsons, for app’lt; John J. Townsend, Jr., for resp’ts.
   Van Brunt, P. J.

In the consideration of the question arising upon this appeal regard must be had to the rules controlling the interpretation of statutes.

Although the resolution out of which the right of the defendant to enjoy its privileges grew, was the act of a municipal body, such body had certain limited legislative powers, and the rights of the parties are to be considered and construed by the same rules as those which govern the interpretation of statutes. The claim made by the defendant that the act resulting in the rights conferred upon the defendant was a mere private contract, and not, therefore, subject to the rules of interpretation governing the construction of statutes cannot prevail, because in the passage of the resolution the common council of the city of New York were exercising a legislative power which they supposed they possessed.

In the case of The People v. Lacombe (99 N. Y., 49), the highest court in this state has laid down this rule as governing the construction of statutes:

“In the interpretation of statutes, the great principle which is to control is the intention of the legislature in passing the same, which intention is to be ascertained from the cause and necessity of making the statute, as well as other circumstances. A strict and literal interpretation is not always to be adhered to, and where the case is brought within the intention of the makers of the statute, it is within the statute, although by a technical interpretation it is not within its letter. It is the spirit and purpose of the statute which are to be' regarded in its interpretation, and if these find fair expression in the staute, it should be so construed as to carry out the legislative intent, even although such construction is contrary to the literal meaning of some provisions of the statute. A reasonable construction should be adopted in all cases where there is a doubt or uncertainty in regard to the intention of the law makers.”

Applying these rules to the legislation under consideration, if we find that there was a certain intention in passing the same, and this intention finds its fair expression in the statute, we must give effect to such intention, although it is not strictly within its letter.

The legislation in question was substantially the introduction of a new system, by which passengers were to be carried from one part of the city to another in public conveyances.

This service had, prior to this time, been almost exclusively performed by accommodation coaches or stage coaches. These vehicles were licensed and restricted to certain defined streets and routes.

Upon the proposed line of the defendant, such a line of stage coaches existed at the time of the passage of the resolution in question, which paid an annual license fee of twenty dollars for each stage coach drawn by two horses.

These accommodation coaches or stage coaches thus licensed were the only vehicles which ran upon fixed routes for the public accommodation.

To furnish these same accommodations, but in a more complete and commodious manner, the street car railway system was devised, the only difference between the railway car and the stage coach being that the former was confined to fixed tracks, constructed in the street and unable, or at least not intended to travel upon any other portion thereof.

The street car was an accommodation coach for the use of the public as much as a stage and subserved precisely the same purposes, and the mere fact that it was more restricted in its fine of travel than the stage, in no way took from it this distinctive character.

The common council in the legislation in question, intended that these street cars should be licensed, and that they should pay a fee for such licenses.

This is the plain purport of the language used.

It was provided that the defendant should pay the annual license fee for each car now allowed by law, and should have licenses accordingly.

The common council in this legislation evidently had in mind some particular license fee which was then allowed by law, and this license fee it was intended should be paid for each car.

It is to be observed that it is not the car license fee now allowed by law which is to be paid, but the license fee now allowed by law.

Can there be any doubt as to what license fee was referred to in view of the circumstances above mentioned ?

For each of the vehicles which ran upon designated routes for the public accommodation a license fee was required to be paid and a license was necessary.

The cars in question were intended to subserve the same purposes, they were to be accommodation coaches for the use of the public and can there be any doubt but that the license fee referred to in the resolution in question was the license fee paid by these vehicles.

It seems to be an entire perversion of the question to claim that it should be determined as though the words the license fee had read car license fees.

The common council did not so restrict their language. They evidently intended that these cars should pay a license fee such as vehicles engaged in a similar yrork were compelled to pay and that these cars should receive license as well as they. There is no mention of car license fees in the resolution, and the common council could not have had such license fees in mind because none existed, but as has already been said a license fee was provided for in respect to vehicles engaged in the same work and it is apparent that the license fee referred to was this license fee and none other.

That this is the true conclusion in respect to the intention of the common council is singularly strongly emphasized by the wording of the resolution in respect to the Ninth Avenue Road, which passed one of the branches of the common council only two days after the passage of the resolution in question.

In that resolution it is provided “that the said cars shall be licensed by the mayor, and the grantees shall pay the annual license fee of twenty dollars per car for such license.” Not an annual license fee, but the license fee, referring evidently to same fee, regulated by existing law. The license fee of twenty dollars referred to here, was, undoubtedly, that paid by accommodation coaches and stage coaches, and the license fee referred to in the resolution in question was the same.

The fact that prior to this time resolutions had been adopted authorizing the operation of street railroads, and no license fee had been required for the cars, affords no answer to the conclusion arrived at, but rather emphasizes the fact that a change in policy was being inaugurated by the common council, that although street cars had theretofore been an experiment of doubtful success, their availability had been demonstrated, and applications for grants were multiplying, and it was determined to exact the same revenue for the city as had, for a long time, been exacted from other vehicles engaged in the same business.

In the view which has been taken of this subject, it is immaterial whether street cars are to be considered coaches or not.

The license fee referred was that paid by accommodation coaches.

Even if it was necessary to put this decision upon the same ground taken by the court below, the common use of the words car and coach, in reference to railroad passenger cars, would seem to indicate that there is no such generic difference between the word “car” and the word “coach,” as applied to vehicles devoted to the carriage of passengers, as to make it impossible to use the words interchangeably.

The judgment and order appealed from should be affirmed.

Bartlett, J., concurs.

Macomber, J.

This action is founded upon a certain resolution adopted by the plaintiffs, December 31, 1852, and subsequently; and on January 1, 1853, embodied in a written agreement between the plaintiff and certain persons to whose rights the defendant has succeeded by assignment.

The material part of the resolution and agreement is as follows:

“3. Resolved, That in consideration of the good and faithful performance of the conditions, stipulations and agreements above prescribed, and of such other necessary requirements as may hereafter be made by the common council for the regulation of said railroad, the said parties shall pay, from the date of opening the said railroad, the annual license fees for each car now allowed by law, and shall have license accordingly.”

The claim of the plaintiffs is that the defendant should pay annually twenty dollars for each car run by it upon its. railway. It is, however, shown that at the time of the passage of the resolution and of the agreement, there was in existence no ordinance of the city of New York imposing: upon the defendant, or upon any other street railway company the duty to pay twenty dollars a car for each car used upon its lines. This is distinctly shown by reference to-numerous ordinances and acts of the legislature, the title and subject-matter of which are set forth in the printed case. Such being the fact resort is had, in order to obtain the recovery and in order to sustain the judgment, to an ordinance of the city of New York passed May 8, 1839, treating of “stages or accommodation coaches.”

The section relied upon is as follows:

“5. Every person licensed by virtue of the provisions of this title shall pay to the mayor of the city of New York for the use of the city, for every accommodation coach or stage or stage-coach which such person shall keep, the sum of twenty dollars, when drawn by two horses.”

The learned judge at the trial made this ordinance of 1839 applicable to the agreement of 1853, and directed a verdict lor the amount claimed.

It is true, as the learned justice says in his opinion, that, it was the intention of the plaintiffs and defendant at the time of making the agreement, that there should be paid, for the use of the streets, some compensation or license fee, but it by no means follows that a mere intention on the part of both contracting parties, the one to demand and the other to agree to pay some license fee or compensation for the use of the streets, that resort may be had to an ordinance which manifestly in its inception was not intended to be applicable to those vehicles which are run upon fixed iron tracks and known always as horse cars.

Indeed, the plaintiffs never presented this claim until nearly twenty-three years after the passage of the ordinance, and not until they had been defeated in an action to recover the license fee of fifty dollars a car from the defendant, which had been imposed by virtue of an ordinance passed subsequently to the agreement mentioned above. See The Mayor, etc., v. The Third Avenue Railroad Company, 33 N. Y., 42.

The true construction of the agreement and ordinance is that the defendant was required to pay a license fee only to the extent as was then provided for railroad cars. It is not competent for the plaintiffs, after ascertaining that they as well as the defendant had been laboring under a mistake of fact, so to enlarge the terms of the agreement as to make the ordinance in reference to stage coaches applicable. Why should that ordinance be hit upon as imposing the license fee contemplated by the parties rather than a license fee for the running of hackney coaches? The explanation of the learned judge at the trial is that the stage coaches ran upon routes very nearly the same as the route of the street car company, and were actually replaced by the use of the street cars themselves. This seems to us to be an unsatisfactory reason, for any intention to resort to other ordinances than some one relating to street cars is not discoverable in the terms of the resolution or the agreement.

At the time of the passage of the resolution, the term “car” had a well-defined, unmistakable signification. It could never be confounded with stages or an accommodation coach. The stages ran from particular stands, used all portions of the streets and landed their passengers at the curbstone on either side; in the winter time they were often replaced by sleighs. Furthermore, there was imposed upon the street car company the duty of repairing the pavement of the streets for a certain distance on each side of the track, and many other obligations were imposed which did not exist in the case of the stages or accommodation coaches so called.

There is not, so far as we are able to discover, anything in the attending circumstances to enable us to have resort, in order to maintain the action, to the almost obsolete ordinance relating to stages. The parties acted upon a mutual mistake in making the agreement in question.

Some stress is laid, in the brief of one of the counsel for the appellants, upon the fact that the defendant never was licensed by virtue of the provisions of the title relating to stages and accommodation coaches, but no greater significance could be given to this circumstance than has already been pointed out, for it is alleged and ■ not denied that the plaintiff, at least from the time this claim was made, was willing and ready at all times to grant a license to the defendant.

The judgment should be reversed and a new trial granted, with costs to the appellant to abide the event of the action.  