
    William H. R. Wilson, Plaintiff, v. United Traction Company, Defendant.
    
      Chapter 417 of the Laws of 1895, providing for the riding of policemen and firemen without charge on street railroads, is unconstitutional — it is not a proper exercise of the police power.
    
    Chapter 417 of the Laws of 1895, which authorizes the mayor of any city and the president of any incorporated village to issue to each policeman and fireman a certificate of appointment, and provides that it shall thereupon be the ■ duty of every street surface and elevated railroad company carrying on business within such city or village to transport every such policeman or fireman free of charge while he is traveling in the performance of his duties, is unconstitutional, in that it operates to deprive the railroad companies therein mentioned of property without due process of law.
    The act cannot be sustained as a legitimate exercise of the police power of the State, as, if it be conceded that the public safety requires the policemen and firemen to be carried upon such railroads, such safety will not be promoted by their being carried free of charge.
    ■ Submission of a controversy' upon an agreed statement of facts, pursuant to section 1279 of the Code of Civil Procedure.
    The defendant is the successor of “ The Albany Railway,” a corporation which was duly incorporated on September 14,1863, under the provisions of the General Railroad Act of 1850 (Chap. 140), and various amendments thereto, for the purpose of operating a street railway in the streets of the city of Albany and elsewhere in the county of Albany. The Albany Railway accepted its franchise and constructed its railway and operated the same for many years prior to 1895. On December 30, 1899, it was duly consolidated with the Watervliet Turnpike and Railroad Company and the Troy City Railway Company, under the name of the “United Traction Company,” whereby all the rights, privileges, exemptions and franchises of the Albany Railway in the city of Albany became and still are vested in the defendant.
    The plaintiff, being a policeman of the city of Albany, and then traveling in the course of the performance of the duties of his office and possessing the certificate issued by its mayor, provided for by chapter 417 of the Laws of 1895, boarded a car of the defendant in such city and claimed the right to ride free upon such car to the
    
      point where his said duties required him to go, claiming the right to do so under the provisions of that act. The defendant denied the validity of such act and ejected him from the car. Whether it had the right to do so is the question presented by this submission. Chapter 417 of the Laws of 1895, above referred to, provides as follows:
    “ The mayor of each city of this State and the president of each .-incorporated village, may issue, under the seal of his office, to each policeman and fireman appointed by the duly constituted authorities of such city or village, a certificate of the appointment and qualification of such policeman or fireman as such, and specifying the duration of his term of office; and it shall thereupon be the duty of -every street surface and. elevated railroad company carrying on business within such city or village, to transport every such policeman or fireman free of charge while he is traveling in the course of the performance of the duties of his office.”
    
      Arthur L. Andrews, for the plaintiff.
    
      Patrick G. Dugan and David B. Hill, for the defendant.
   Parker, P. J.

The decision in Beardsley v. N. Y., L. E. & W. R. R. Co. (162 N. Y. 230), which follows the decision of the Federal court in Lake Shore & M. S. Ry. Co. v. Smith (173 U. S. 684), seems to be a clear authority for the proposition that the. statute of 1895, above referred to, operates, to deprive the defendant of- its property without due process of law. In those cases the railroad companies were required to issue mileage books at a reduced rate of fare to those willing to purchase a designated number of miles at one time. In this case the defendant is required to carry a certain specified class of persons entirely free of charge. If the former is an invasion of the companies’ property rights, the latter is equally so$ and in neither case is there any process of law provided for save the man - • date contained in the act. itself. It is sufficient to refer to the reasoning of the court in those two cases to show that the principles which controlled in -them are equally applicable to this case. They are substantially alike in all respects save as to the single question whether the act of 1895'can be sustained as a legitimate exercise. of the so-called police power of the State. If it may not be sustained upon that theory, then, like the mileage book law, it is a clear violation of that provision of the Constitution (Art. 1, § 6) that no person shall be deprived “ of life, liberty or property without due process of law; nor shall private property be taken for public use without just compensation.”

There are certain lines of legislation which are sustained, although they do injuriously interfere with property rights and even confiscate. them without due process of law, but it is for the reason that they are necessary to promote the health, morals or safety of the public. Just how far such legislation may extend it is not easy to define in any general statement. The methods which the Legislature may adopt to guard such interests the courts do not attempt to regulate, except as the cases arise and are presented to them, but in such cases they are “ careful to detect violations of constitutional safeguards masquerading in the garb of police powers.”

An extended discussion of those powers and their extent is not necessary here. One may be found in the case of Bronk v. Barckley (13 App. Div. 72). It is sufficient to say that, in our judgment, the statute in question cannot be sustained as a valid exercise of that power. Its evident purpose and effect is to relieve the municipalities referred to therein from a portion of the burden of maintaining their police and fire departments at the expense of the several street railway companies within their limits. Concede that the public safety requires that the public officers mentioned be carried upon such railroads, it is not apparent why, in order to promote that safety, they should be carried free of charge. There is no pretense that the act is necessary to secure their right to ride upon such roads. The sole purpose is to secure their right to ride free. Thus the only advantage secured by the act to the public is that the railroad company instead of the municipality pays the fare. Such an advantage may be a public convenience, but the right to take the property of the individual citizen, or of a class, for the sole reason that the proceeds of it would be convenient to aid the municipality in defraying its general expenses, has not yet been conceded as a legitimate exercise of the police power, and we are not disposed to concede it now. This conclusion renders it unnecessary to examine the other questions raised in this case. The statute being a violation of the constitutional protection above referred to, it is inoperative as against the defendant. The plaintiff’s claim to ride free was, therefore, without warrant, and judgment should, therefore, be rendered against him and in favor of the'defendant, for costs.

All concurred, except Fursman, J., not sitting. •

Judgment against the plaintiff and in favor of the defendant, for costs. .  